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Green Deal and Incentive Effect: journal article

What Is Truly Environmental Aid?

Vittoria Musardo

European State Aid Law Quarterly, Volume 20 (2021), Issue 2, Page 217 - 228

The current revision of the Energy and Environmental State aid guidelines (EEAG) represents a unique opportunity to update and adapt the current regime to reflect the latest EU regulatory and policy developments on climate change and environmental protection and especially the new goals of the European Green Deal. In this context, it becomes paramount to develop a clear and consistent approach for singling out aid measures which are truly capable of bringing about a further level of environmental protection, necessary for attaining such bold and farsighted objectives. The present article will seek to develop a consistent evaluation model for identifying aids which are truly environmental in nature, ensuring that the advantages allocated are targeted and limited to what is strictly necessary. This standard will build on the potential for a strategic use of the Incentive Effect criteria in the assessment of the compatibility of aid measures, aimed at making sure that the behavioural shifts induced by the latter are capable of attaining a level of environmental benefit consistent with the heightened environmental objectives introduced by the Green Deal. Keywords: Green Deal; EEAG; Incentive Effect; renewable energy; environmental aid.

Hinkley Point C: Trimming the SAM, While Extending the Reach of Wider EU Law Infringements? journal article

Leigh Hancher, Antonios Bouchagiar

European State Aid Law Quarterly, Volume 20 (2021), Issue 4, Page 529 - 545

The judgment of the Court of Justice in the Hinkley case provides food for thought on several fundamental questions of EU State aid law. The present article discusses two of them. First, the authors analyse the role (if any) of objectives of common interest in the assessment of compatibility of aid under Article 107(3)(c) TFEU, as well as the manner in which the Commission should balance the positive against the negative effects of such aid. Second, the authors explore how strong the link of relevance should be between an aid measure and an alleged breach of other EU law (outside the field of State aid) for such a breach to affect the compatibility assessment of the aid. The authors analyse whether the Hinkley judgment has lowered the threshold for finding such a link in comparison to the previous case-law requiring an 'indissoluble link', which could have significant institutional implications. Keywords: Hinkley; objective of common interest; indissoluble link; energy Milestones Preview: this article is based on a chapter of the upcoming second edition of the book 'Milestones in State Aid Case Law' (Lexxion 2022).

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

Is Hywind Tampen’s State Aid Approval a Kickstart for the Norwegian Offshore Wind Industry? · Decision 017/20/COL Hywind Tampen, EFTA Surveillance Authority · Annotation by Ignacio Herrera Anchustegui journal article

Annotation on Decision 017/20/COL of the EFTA Surveillance Authority of 11 March 2020 on the Hywind Tampen Project

Ignacio Herrera Anchustegui

European State Aid Law Quarterly, Volume 19 (2020), Issue 2, Page 225 - 231

On 11 March 2020, the EFTA Surveillance Authority (ESA) declared Norway’s measure to support the development of the world’s first medium-sized floating offshore wind turbine, Hywind Tampen, compatible with the European Economic Area (EEA) Agreement. The measure consists of an investment grant of NOK 2,3 billion (equivalent to ca. €205 million) for the construction of this offshore wind farm, covering about 43% of the total costs of the project. The project seeks to reduce Norway’s carbon footprint and help it transition towards a more sustainable energy supply.

State Aid Perspectives on the Coal-to-Clean Transition journal article

Report on the Conference held at the Club de Warande, Brussels, 14 November 2019

Juliette Delarue

European State Aid Law Quarterly, Volume 19 (2020), Issue 1, Page 105 - 110

Alongside long-term political commitments and robust administrative planning, a successful decarbonisation of the energy sector requires supportive measures, of which some may qualify as State aid. For the ‘Coal-to-Clean Transition’ these may include: compensation for the closure of coal facilities; efforts to achieving a fair and just transition in regions hitherto dependent on coal mining or coal use; and adequate interventions to ensure security of electricity supply. The conference of 14 November 2019 highlighted that a precise scrutiny of State aid aspects of these politically-sensitive measures by the Commission is required to ensure certainty for Member States, operators and the general public alike. Keywords: Just transition; Capacity mechanisms; Compensations; Coal phase-out; Energy transition.

Legal Status and Legal Effects of the Commission’s State Aid Guidelines: journal article

The Case of the Guidelines on State Aid for Environmental Protection and Energy (EEAG) (2014-2020)

Catherine Banet

European State Aid Law Quarterly, Volume 19 (2020), Issue 2, Page 172 - 184

Looking at the practical case of the Guidelines on State aid for environmental protection and energy (EEAG) (2014-2020) and implementation of them, this article intends to re-open the debate on the legal status of soft law instruments in EU State aid policy. It analyses the recent case law of the Court of Justice of the European Union and the manner the latter distinguishes between the legal force and the legal effects of the State aid guidelines, not only on the Commission, but also on third parties like Member States. The article puts in perspective the careful approach of the Court in not recognising the possible indirect effects of the guidelines on Member States or individuals with the procedural and structural changes in the adoption of the guidelines. With the implementation of the State Aid Modernisation, a circular process in three steps has been established between the adoption of the General Block Exemption Regulation (GBER), the new State aid guidelines and the proposals for new secondary legislation. In this process, the guidelines assume the function of a bridge, building on the binding principles enshrined in the GBER and preparing the revision of sectoral EU directives and regulations. With the upcoming revision of the GBER and the EEAG which is now scheduled for adoption in 2021, the same dynamic will most probably apply. The revision of the GBER and the EEAG will need to reflect the content of the newly adopted Clean Energy Package for All Europeans, but will also play a crucial role in preparing the grounds for amending relevant secondary legislation in line with the Commission’s European Green Deal Strategy. Keywords: EEAG 2014-2020, renewable energy, support schemes, GBER, legal force, legal effects

The European Green Deal and State Aid: journal article

The Guidelines on State Aid for Environmental Protection and Energy Towards the Future

Steven Verschuur, Cecilia Sbrolli

European State Aid Law Quarterly, Volume 19 (2020), Issue 3, Page 284 - 289

The European Green Deal is the prelude and the foundation of a daunting, but necessary, environmental-centric industrial revolution. EU legislation has obviously dealt with environmental policies in the past, but the European Green Deal is a far-reaching project that will require unprecedented investments. The transition envisioned in the European Green Deal will also require amendments to a wide variety of existing EU legislation and policies, including in the field of State aid. The Guidelines on State aid for environmental protection and energy (EEAG), in force until the end of 2021, are the legal framework in force to assess environmental State aid. This raises the question whether these Guidelines are a suitable instrument to achieve the objectives of the European Green Deal. This paper is the first of a series that will discuss the interplay between existing State aid rules and policy on the one hand and the European Green Deal on the other. It will provide a broader introduction to the European Green Deal and its envisaged means of financing and will discuss the application of the incentive effect to the State aid assessment of national support measures to achieve objectives of the European Green Deal. Keywords: EU Green Deal, Environmental and Energy Guidelines, incentive effect, environmental targets, financing