Christos Nikolaos Kalyka

European State Aid Law Quarterly, Volume 22 (2023), Issue 1, Page 42 - 54

This article reviews the interaction between EU State aid control and free movement law. A critical assessment of the case-law suggests that both regimes contribute to the attainment of similar goals: the establishment of an undistorted market. Their complementary interplay suggests that some principles from the case law on free movement can be used as an interpretative tool in relation to State aid, especially in the assessment of material selectivity. Accordingly, the extent to which State aid control can assess the competence of Member States to pursue national objectives is explored. National objectives can be pursued, provided the measures incorporating them are consistent with the objective pursued. The assessment of consistency in essence adopts elements of the principle of proportionality which is used under free movement law and therefore it does not prevent the ability of Member States to promote national interests, rather it assesses the coherence of the regulatory standard used for the promotion of the objective. Keywords: selectivity; proportionality; national objectives; consistency

Marcus Klamert, Franz A.M. Koppensteiner

European State Aid Law Quarterly, Volume 22 (2023), Issue 3, Page 234 - 241

This article discusses two seemingly contradictory strands of case law by the EU Courts: one finding that a State aid procedure may never lead to a result in contradiction to other rules and principles of EU law; the other holding that only such violations of other EU law should be considered by the European Commission that are intricately linked to the State aid measure itself. This article examines how this case law relates to general EU law principles such as consistency and loyalty and a synthesis is proposed based on the recent Grand Chamber judgment in Braesch. This article submits that State aid law is not a self-contained regime within EU law allowing the European Commission to ignore the requirements of other EU law. Keywords: modalities of State aid; self-contained regime; consistency; loyalty; legal certainty; power plant

Clemens Ziegler

European State Aid Law Quarterly, Volume 21 (2022), Issue 3, Page 237 - 250

The article discusses the European Commission’s recent State aid practice regarding lignite- and coal-fired power plants and their decommissioning in the context of the European Green Deal. It is based on the Commission’s decisions regarding the Dutch Hemweg plant, the German coal- and lignite phase-out and the rescue- and restructuring aid in favour of the Romanian electricity producer Complexul Energetic Oltenia. The author considers that the Commission’s mentioned State aid practice is far from living up to the Commission’s binding commitments under the 8th environmental action programme. To ensure that no-one is left behind, as the Green Deal postulates, the author suggests strengthening the rights of interested parties in State aid proceedings and to give environmental NGOs the status of such an interested party, which would also enable them to bring direct actions before the EU Courts. Keywords: energy; fossil fuels; environmental law; (in)consistency; Green Deal

Clemens Ziegler

European State Aid Law Quarterly, Volume 21 (2022), Issue 2, Page 181 - 187

The author considers the European Commission’s approval of the Romanian restructuring aid for Complexul Energetic Oltenia of January 2022 to be an accident. Allowing State aid for bankrupt undertakings’ investments in new fossil gas capacities without the conditions that are imposed on their competitors that would receive aid under the Commission’s Climate, Energy and Environmental Aid Guidelines leads to incoherence in the Commission’s State aid practice. It distorts the market situation for decades in a way contradicting the spirit of the Commission’s Green Deal. The Decision also shows the need for improving civil society actors’ participation rights in State aid proceedings and related court proceedings.