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Belgian Courts and the Enforcement of EU State Aid Law: journal article

Towards a Regulatory Framework?

Wout De Cock

European State Aid Law Quarterly, Volume 22 (2023), Issue 1, Page 69 - 77

It is well-established that national courts play a crucial role in terms of enforcement of EU State aid law. However, it also well-known that this role is undervelopped in many EU Member States. For example, Belgian State aid courts face all sorts of uncertainties and difficulties when enforcing EU State aid law. This contribution therefore argues that the Belgian State should take (regulatory) measures to ensure that Belgian courts can enforce EU State aid law. Kyewords: Belgian courts; enforcement; standstill obligation; unlawful State aid; obstacles and uncertainties; regulatory framework

The Commission Adopts the New Notice on the Enforcement of State Aid Rules Before National Courts: journal article

An Overview of the State of Play of Private Enforcement of State Aid Law

Leonardo Armati, Federico Macchi

European State Aid Law Quarterly, Volume 21 (2022), Issue 1, Page 3 - 19

The European Commission has adopted a new notice on the enforcement of State aid rules by national courts. The New Enforcement Notice replaces the 2009 Enforcement Notice, providing updated practical guidance for national judges facing private claims to remedy the unlawful granting of State aid, ie without a prior Commission approval or an exemption from notification. This article illustrates the main aspects of the New Enforcement Notice, from the general principles to certain topics, such as the interplay between the Commission and national courts’ proceedings, the role of national courts regarding aid covered by the GBER and damages actions, that appear particularly relevant in the light of the innovation they bring compared to the 2009 Notice. The article, in line with the spirit of the Enforcement Notice, stresses the importance of private enforcement before national courts for an effective development and application of EU State aid rules. Keywords: private enforcement; enforcement notice; national courts; standstill obligation; damages actions

The Interplay between the European Commission, National Authorities and National Courts in State Aid Law: journal article

An Attempt to Cut the Gordian Knot

Ranjana Andrea Achleitner

European State Aid Law Quarterly, Volume 21 (2022), Issue 2, Page 173 - 180

The interplay between the Commission, national courts and national authorities in the system of State aid enforcement poses a number of challenges and potential conflicts, which, in the end – as undoubtedly showcased by the Eesti Pagar judgment– also put the aid beneficiaries under great pressure in the context of the General Block Exemption Regulation. This article attempts to identify the most important problems and challenges related to the division of roles between the institutions in State aid law, with the intention of proposing solutions that provide legal certainty for relevant undertakings, the national authorities and national courts. The article also discusses the fact that despite the growing number of private enforcement litigation, the national courts have rarely concluded that unlawful aid was granted and rarely awarded remedies. The purpose of this paper is to provide proposals for more effective private enforcement. Finally, the article pays particular attention to the limited use of cooperation tools and suggests an update of these mechanisms. Keywords: private enforcement; eState-Wiki; GBER; standstill obligation; unlawful aid

Taxation, State Aid Rules and Arbitral Courts: journal article

A BIT of a Mess in the Micula Saga

Begoña Pérez Bernabeu

European State Aid Law Quarterly, Volume 19 (2020), Issue 3, Page 329 - 338

In its long-awaited ruling on 18 June 2019, the General Court (GC) annulled the Commission's State aid Decision in the Micula case where the Commission considered that the damages payment by Romania of an ICSID award constituted State aid. In the GC's opinion, the payment of the adverse arbitration award by a Romania does not constitute illegal State aid. Unfortunately, the GC's reasoning is tied to the timing of the measure taken by Romania, which took place before Romania acceded to the EU, and the rest of the compelling substantive pleas were not assessed. Moreover, the GC did not rule on whether the compensation of the withdrawal of the tax incentives for the post-accession period constitutes State aid given that the Commission failed to distinguish between compensation for the period predating accession and post-accession. For this reason, this judgment does not put an end to the Micula saga as long as the Commission has lodged an appeal before the Court of Justice. Keywords: arbitral award, Bilateral Investment Treaty (BIT), repeal of tax incentives, damages compensation, enforcement

The National Transparency Registers in Action journal article

Katrine Lillerud

European State Aid Law Quarterly, Volume 18 (2019), Issue 3, Page 239 - 248

National registers on individual aid grants above €500 000 became mandatory from 1 July 2016. The European Commission hopes the registers will promote compliance, raise awareness on aid granted and function as a disciplinary measure. They count on the registers to ensure better control at the national level, by incentivising beneficiaries to comply and by providing enough information for competitors to check whether aid was lawfully granted. This article provides a case study of how the national registers function in Norway, Iceland and Liechtenstein. The three European Economic Area States are an interesting case study as they are the only countries that have opted for their own national transparency registers, whilst the EU Member States all use the Commission’s portal. The findings show that the transparency registers currently do not provide the information required for competitors to assess the compatibility of an aid measure with the internal market. Almost all the published aid measures lack a link to the national legal basis or the granting authorities’ decision on the individual aid measure. These shortcomings are easily corrected. However, if left unattended, they arguably render block exempted aid unlawful. Currently, the effect of the national registers appears to be that they induce competitors to apply for aid rather than litigate on it. Keywords: Ex post evaluation; Block exemptions; National transparency registers; Individual aid; Privatization of State aid enforcement; Transparency communication

The Never Ending ‘Saga’ of the Fallimento Traghetti del Mediterraneo · Case C-387/17 Traghetti del Mediterraneo · Annotation by Alessandra Franchi journal article

Annotation of the judgment of the Court of Justice (First Chamber) of 23 January 2019 in Case C-387/17 Presidenza del Consiglio dei Ministri v Fallimento Traghetti del Mediterraneo

Alessandra Franchi

European State Aid Law Quarterly, Volume 18 (2019), Issue 3, Page 391 - 397

This judgment continues the ‘saga’ related to the litigation between Fallimento Traghetti del Mediterraneo and the Italian State concerning the unlawful State aid granted to Tirrenia di Navigazione SpA as compensation for public service obligations from 1976 to 1980 and shows the complexity of the assessments by national courts on damages related to the granting of unlawful State aid. The CJ provides guidance on the notion of existing aid, clarifying that State aid measures which were granted in a period when the maritime cabotage market was not yet liberalized at Union level cannot be classified as existing aid because of the merely formal absence of liberalisation of that market, to the extent that those subsidies were liable to affect trade between Member States and distorted or threatened to distort competition. The CJ also emphasises the cooperation obligation of the national courts and their role in awarding damages related to the distortion of competition created by unlawful State aid. Member State cannot invoke the principle of legitimate expectation in case of breach of the notification obligation set in Article 108 (3) TFEU. Finally, the CJ clarifies that the ten-year limitation period set out in Article 15, paragraph 1, of Regulation 659/1999 (repealed by Regulation 2015/1589), only applies to Commission investigation under Article 108, paragraph 3, TFEU and only refers to the Commission’s power and time limit for recovery of illegal aid, but does not apply in damages proceedings before the national jurisdictions. Keywords: Existing aid; Recovery; National enforcement; Prescription; Damages.

Private Enforcement of EU State Aid Law Through Damages Claims journal article

Achieving Effective Redress

Alvaro Ummen Almeida

European State Aid Law Quarterly, Volume 18 (2019), Issue 2, Page 169 - 179

A new enabling framework for damages claims based on competition law infringements has arisen in light of the European Damages Directive coming into force and its implementation across EU Member States. Hitherto, one of the reasons why damages awards derived from State aid infringements have been rare is the absence of EU cause of action in claims against the aid beneficiary and on the standards of proof in causality analysis. These obstacles can be surpassed by amplifying the scope of the Damages Directive and through a broader interpretation of the goals of Articles 107 and 108 TFEU with further instruments such as compensation. Aligned with the expectation of initiatives at the EU level, five steps are suggested: amplifying the scope of the Damages Directive to State aid infringements; joint and several liability between Member States and aid recipients; presumption of harm to reduce causal uncertainty; counterfactuals for quantifying damages; and a right of recourse from contractual liability by the aid recipient. A more economic approach in line with the overarching principle of effectiveness will enable an active role by competitors, promoting equivalence between antitrust and State aid harm redress, while also functioning as a complementary deterrence mechanism of enforcement by strengthening the recovery procedure. Keywords: Damages; Enforcement; Framework Equivalence; Effective Redress.