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Extension of the State Aid Acquis under the Energy Community of South-East Europe in Case ECS-10/18 journal article

Davor Vuletić

European State Aid Law Quarterly, Volume 20 (2021), Issue 1, Page 87 - 100

The State aid acquis has been spreading out of the EU through the enlargement process under the European Agreements and Stabilisation and Association Agreements. Moreover, the State aid acquis became a part of other international agreements such as the Treaty Establishing Energy Community in South East Europe (TEEC). Some legal theorists describe EU law as a ‘self-contained system’ whose application outside its original legal and institutional environment could be problematic. Moreover, if the principle of ‘monism’ is not applied, the process of ‘gradual approximation’ depends on the interpretation of the acquis role in the national legal system. Under these circumstances, agreements such as the TEEC serve as agents for practical implementation of the EU acquis within broader international law. This article addresses named challenges through the assessment of Case ECS-10/18 involving a guarantee for the construction of a power plant in Bosnia and Herzegovina. The article argues that the application of the EU State aid acquis in this case is missing sound legal and economic analysis. Ultimately, the full State aid control cannot be achieved, because the European Commission control and the Court of Justice of the European Union oversight are not available. Instead, general principles of international law apply, including countermeasures not immanent to the EU State aid acquis. Keywords: Bosnia and Herzegovina; Energy Community; electricity; extension; guarantee

The Spanish Hydroelectric Tax: Asymmetrical Taxation with Environmental Flavour · Joined Cases C-105/18 to C-113/18 UNESA · Annotation by Begoña Pérez Bernabeu journal article

Annotation on the Judgment of the Court (Fifth Chamber) of 7 November 2019 in Joined Cases C-105/18 to C-113/18 UNESA

Begoña Pérez Bernabeu

European State Aid Law Quarterly, Volume 19 (2020), Issue 3, Page 352 - 358

The Spanish tax Canon por la utilización de aguas continentales para la producción de energía eléctrica -guided by a (called into question) environmental objective- taxes only a kind of electricity producers (hydroelectric producers using inland waters located in the territory of more than one autonomous community) on the basis on the environmental damage they cause employing the inland water. In contrast, hydroelectricity producers operating within river basins encompassing a single autonomous community, the rest of electricity producers whose source of electricity production is other than water (which are both direct competitors) and even all the installations which use water for purposes other than the production of hydroelectricity are not liable to the tax. The Spanish Supreme Court referred the matter to the Court of Justice on for a preliminary ruling. However, the Court of Justice conducted a misguided analysis of selectivity through the reference framework method and concluded the inexistence of selectivity and, hence, of State aid.

Support for Services in the Lithuanian Electricity Sector · Case C-706/17 Achema · Annotation by Lina Barauskaitė journal article

Annotation on the preliminary ruling of the Court of Justice (Fourth Chamber) of 15 May 2019 in Case C-706/17 AB Achema, AB Orlen Lietuva and AB Lifosa v Valstybinė kainų ir energetikos kontrolės komisija, Lietuvos Respublikos energetikos ministerija, UAB Baltpool

Lina Barauskaitė

European State Aid Law Quarterly, Volume 18 (2019), Issue 3, Page 352 - 358

On 15 May 2019, the Court of Justice of the European Union (the CJEU or the Court) rendered a landmark state aid preliminary ruling where it assessed the Lithuanian public interest services (PIS) support measure provided to certain Lithuanian electricity producers. The measure was never notified to the European Commission and was subject to number of court disputes at the national level. The ruling confirms that the PIS support in the electricity sector constitutes State aid. In particular, the Court confirms that PIS funds can be regarded as State resources, since their life cycle (collection, administration and distribution) are strictly regulated and remains under the control of the Lithuanian State. PIS funds are also intended to finance certain services in the electricity sector, constituting a selective advantage. Moreover, due to characteristics of the Lithuanian electricity market, such as existing interconnectors and European Union electricity market liberalisation, PIS scheme is also liable to affect trade between the Member States and distort competition. Finally, the Court also expressed its doubts whether PIS should be defined as service of general economic interest (SGEI). According to the Court, the requirements for SGEI existence are not met. Keywords: Energy; Electricity; State resources; Imputability; Effect on trade; Distortion of competition; SGEI.

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