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Nürburgring: Limited Scope to Challenge the Competitive Purchase of Assets That Have Received Aid · Cases T-353/15 NeXovation/European Commission and T-373/15 Ja zum Nürburgring/European Commission · Annotation by Irene Moreno-Tapia Rivas and Victoria Riv journal article

Annotation on the Judgments of the General Court (First Chamber, Extended Composition) of 19 June 2019 in Cases T-353/15 NeXovation/ European Commission and T-373/15 Ja zum Nürburgring/European Commission

Irene Moreno-Tapia, Victoria Rivas Santiago

European State Aid Law Quarterly, Volume 19 (2020), Issue 2, Page 220 - 224

Almost a century after the construction of the German racing circuit Nürburgring, economic problems obliged the Land of Rhineland-Palatinate to finance a luxury complex around the race track with the purpose to save the park in economics terms. However, after having received a complaint, the European Commission started an investigation procedure which ended with a Decision on the State aid implemented by Germany for Nürburgring. In the meantime, the Nürburgring assets were sold through a tender process managed by the German Government under the rules agreed with the European Commission and the administrators of the assets. The Commission Decision determined that the measures in favour of the owners of Nürburgring were unlawful and incompatible with the European market rules; in addition, the European Commission decided, first, that any potential recovery of the aid would not concern the buyer of the assets; and, second, that the sale of the assets in the framework of an open, transparent and non-discriminatory tender process did not constitute State aid. The General Court upheld the Decision. Both judgments, T-353/15 and T-373/15 are currently appealed by both complainants before the Court of Justice.



Recovery of Unlawful Aid in Case of Insolvency journal article

Stefania Bello, Germano Guglielmi

European State Aid Law Quarterly, Volume 19 (2020), Issue 4, Page 440 - 451

The provisions on State aid laid down by the TFEU aim at preventing that public intervention in the economy could affect trade and distort competition to an extent contrary to the common interest. To this end, the Commission may order Member States to recover State aid granted in breach of EU law. This article focuses in particular on the specific case of aid recovery from insolvent beneficiaries. The Commission has always taken a very rigorous approach on this matter, requiring the winding-up of the beneficiary and the exit from the market where it is not able to reimburse the total amount of the recovery, regardless of the circumstances of the case. The Recovery Notice adopted in 2019 confirmed the rigid position taken by the Commission towards insolvent beneficiaries. The main purposes of this article are, firstly, to assess the approach adopted by the Commission and, secondly, to investigate the existence of the possibility for the Member State to behave as a private creditor in recovering the unlawful aid, or to suspend the recovery procedure in order to examine a plan to relaunch the activities of the insolvent beneficiary. Keywords: Recovery Notice; unlawful aid; State aid recovery; insolvent beneficiaries





Whether or Not to Bite the Apple: Some Implications of the August 2016 Commission Decision on Irish Tax Benefits for Apple journal article

Eugene Stuart

European State Aid Law Quarterly, Volume 16 (2017), Issue 2, Page 209 - 232

Every State aid regulatory decision in the EU has political, economic and administrative dimensions in addition to the application of legal rules and principles. The Apple Decision of August 2016, imposing a record recovery order against Ireland, is no exception. In the context of the use of the EU State aid rules to promote fair tax competition, and contribute indirectly to failed tax harmonisation, this article looks in detail at the Apple Decision together with its implications in the context of EU State aid and taxation policy and some of the sensitive political repercussions arising from the Decision. State aid in the EU via tax measures continues to represent about one-third of all State aid. Accordingly, it is also topical and useful to explore the logic and motivation of the European Commission in treating tax measures as liable to give rise to State aid concerns (and as priority and major cases) in the context of the Apple Decision and the soft law measures, Commission decisions and case law which preceded it. The case is currently on appeal and, although the Irish arguments do not seem strong at first sight, on several points the position of the Apple entities and of the Irish tax authorities will need to be analysed in detail by the Court in response to the Irish arguments and there is likely to be some scope for certain Commission positions in the case to be over-turned on points of fact, if further proven in the appeal. In reviewing the Apple Decision, the EU Courts will soon have an important (or even historic) opportunity to decide whether or not to further support the legality of the Commission’s continuing expansion of its State aid remit in regard to allegedly unfair tax measures. Keywords: Tax Rulings; Unfair Tax Competition; Tax Harmonisation; Arm’s Length Principle; Record State Aid Recovery.

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