Review of EU Case Law on State Aid – 2022 by Wout De Cock, Caroline Buts, Malgorzata Agnieszka Cyndecka and Maria Segura journal article Wout De Cock, Caroline Buts, Malgorzata Agnieszka Cyndecka, Maria Segura European State Aid Law Quarterly, Volume 22 (2023), Issue 3, Page 290 - 328
STMicroelectronics and the Commission’s Communication ‘A Chips Act for Europe’ journal article A Departure from the Commission’s State Aid Practice? Kerstin Rohde, Adrian Roseanu European State Aid Law Quarterly, Volume 22 (2023), Issue 1, Page 29 - 41 On 8 February 2022, the Commission adopted the Communication ‘A Chips Act for Europe’. It announces the case-by-case assessment directly under Article 107(3)(c) TFEU for semiconductor cases and sums up principles for the compatibility assessment. On 5 October 2022, the Commission approved State aid for STMicroelectronics. It is the first Decision based on Article 107(3)(c) TFEU and the principles of the Chips Act Communication. State aid practitioners are divided on the nature of the Chips Act Communication. It appears like a deviation from the typical soft law instruments that were adopted since SAM. Against this background, this paper deals with the question whether the Chips Act Communication represents a departure from the Commission's practice for its compatibility assessment and therefore favours the semiconductor industry. In this regard, it will assess whether the announced case-by-case assessment directly under Article 107(3)(c) TFEU complies with the Commission’s practice and whether the Chips Act Communication due to its nature is directly applicable. It will then examine the existence of a rule of practice to comprehensively limit the Commission’s discretion by a detailed set of assessment criteria and the admissibility of sector-specific soft law. Keywords: Chips Act Communication; compatibility assessment; limitation of discretion
Review of EU Case Law on State Aid – 2021 · by Caroline Buts and Wout De Cock journal article Caroline Buts, Wout De Cock European State Aid Law Quarterly, Volume 21 (2022), Issue 3, Page 278 - 301
Shedding Light into the ‘Black Box’ of State Aid: journal article The Impact of Hinkley Point C on the Assessment of the Compatibility of State Aid Phedon Nicolaides European State Aid Law Quarterly, Volume 20 (2021), Issue 1, Page 4 - 14 The article argues that the judgment of the Court of Justice in case C-594/18 P Austria v Commission, which appeared to limit the criteria that the Commission uses to determine the compatibility of State aid, may have a positive impact on State aid control if it makes the assessment of the Commission more transparent. There is a need for greater transparency in the ‘weighing’ of the positive and negative effects of State aid and the ‘balancing’ of those effects. The weighing and balancing of the effects of State aid are not easy tasks. But it will be necessary for the Commission to be more explicit about the model it relies on to conclude that aid is compatible or not. Keywords: Article 107(3)(c) TFEU; compatibility with internal market; common interest; affectation of trade; distortion of competition; Hinkley Point C
The Relationship between Economic Advantage and the Compatibility Assessment in Decisions Not to Raise Objections · Case T-578/17 a&o hostel and hotel Berlin GmbH v Commission (Jugendherberge Berlin) · Annotation by Christopher McMahon journal article Annotation on the Judgment of the General Court (Sixth Chamber) of 20 June 2021 in Case T-578/17 a&o hostel and hotel Berlin GmbH v Commission (Jugendherberge Berlin) Christopher McMahon European State Aid Law Quarterly, Volume 20 (2021), Issue 3, Page 427 - 433 A recent decision of the General Court to annul the Commission’s decision not to raise objections to individual aid for the development of a youth hostel raises important questions about the burden that the Commission must bear in establishing that there are no serious doubts as to the compatibility of the contested measures with the internal market. The case related to a contract between the regional government of Berlin and a non-profit organisation allowing the latter to occupy a site rent-free provided that it developed and operated a youth hostel there. A competing provider of low-cost tourist accommodation that made a complaint regarding the contract applied for the annulment of the Commission’s decision not to raise objections after a preliminary assessment. After dismissing a number of speculative arguments on the admissibility of the action, the General Court annulled the decision due to the Commission’s failure to rule out the existence of serious doubts as to compatibility with the internal market. The decision will require the Commission to tread carefully in refusing to rule on the existence of aid as part of the preliminary assessment, particularly where this relates to uncertainty on the condition of economic advantage. This may limit the ability of the Commission to conserve resources by refraining from identifying and quantifying any economic advantage.
Review of EU Case Law on State Aid – 2020 journal article Caroline Buts, Malgorzata Agnieszka Cyndecka, José Luis Buendía European State Aid Law Quarterly, Volume 20 (2021), Issue 3, Page 397 - 426
Common Interest as a Condition for State Aid Compatibility journal article Stig Eidissen European State Aid Law Quarterly, Volume 19 (2020), Issue 4, Page 452 - 463 According to long-standing Commission practice, State aid must aim at or contribute to an objective of common interest to qualify as compatible with the internal market. In the recent judgment Hinkley Point C, the Court of Justice rejected the pursuit of an objective of common interest as a condition for compatibility pursuant to Article 107(3)(c) TFEU. This article takes a closer look at the origin and content of the common interest condition. Further, it discusses whether the Hinkley judgment establishes a precedent to reject a common interest condition entirely, and the possible consequences of such a precedent for State aid law and policy going forward. Keywords: State aid; compatibility; compensatory justification; common interest; judicial review
Review of EU Case Law on State Aid – 2018 journal article European State Aid Law Quarterly, Volume 18 (2019), Issue 3, Page 313 - 338
Evidence Requirements in the State Aid Compatibility Assessment journal article Anna Nowak European State Aid Law Quarterly, Volume 17 (2018), Issue 2, Page 212 - 221 The evidence requirements in the State aid compatibility assessment are a highly important and practical issue, which however has not been properly discussed until now. Indeed, the relevant provisions of the notification forms and of the acts of soft law do not give clear guidance as to the evidence requirements in the State aid procedure. Furthermore, the Commission is very indulgent towards the evidence provided by the notifying States, especially in the preliminary examination, and thus the evidence requirements are low. Such low evidence requirements do not properly secure the standard of ‘serious doubts’ necessary to open the formal investigation, and increase the risk of errors in State aid decisions. On the other hand, the possibility to tighten up the evidence requirements is limited, due to the ex ante character of State aid control. Keywords: Evidence; procedural law; compatibility assessment.
The Compatibility of State Aid with the Internal Market ∙ T-356/15 Austria v Commission ∙ Annotation by Phedon Nicolaides journal article Annotation on the Judgment of the General Court (Fifth Chamber) of 12 July 2018 in Case T-356/15 Republic of Austria v European Commission. Phedon Nicolaides European State Aid Law Quarterly, Volume 17 (2018), Issue 4, Page 534 - 545
Judgment By Formula: Regulatory Form and the Differentiation of Fiscal Measures and Non-Fiscal Measures in EU State Aid Law Christopher McMahon