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The Status of Guidelines and Notices in Relation to the Application of Article 107(1) TFEU · Case C-211/20 P Valencia CF · Annotation by Cees Dekker journal article

Annotation of the Judgment of the Court of Justice (First Chamber) of 10 November 2022 in Case C‑211/20 P European Commission v Valencia Club de Fútbol SAD and Kingdom of Spain

Cees Dekker

European State Aid Law Quarterly, Volume 22 (2023), Issue 2, Page 193 - 198

It is settled case law that the Commission may adopt guidelines and notices setting out how it will exercise its discretion under the State aid rules. These guidelines and notices limit the way in which the Commission exercises its powers. In the present case, the Court of Justice also assumes that role in relation to the Commission's Guarantee Notice. However, unlike other cases in which the Union Courts have ruled on the role of the Guidelines, which concerned the Commission's application of Article 107(3) TFEU, the present case concerns the application of Article 107(1) TFEU. It is also settled case law that the Commission does not have a wide margin of discretion in the application of Article 107(1) TFEU, as the concept of aid is legal in nature. The question is, therefore, whether the Commission can impose restrictions on itself in its assessment under Article 107(1) TFEU. The Court of Justice ignores this question.

Prior Economic Analyses’ Impact on Case Assessment in State Aid Enforcement Outside the EU · Case ECS-10/18 Secretariat of the Energy Community v Bosnia and Herzegovina · Annotation by Davor Vuletić journal article

Annotation on the Decision of the Ministerial Council of the Energy Community of 30 November 2021 in Case ECS-10/18 Secretariat of the Energy Community v Bosnia and Herzegovina

Davor Vuletić

European State Aid Law Quarterly, Volume 21 (2022), Issue 1, Page 93 - 98

International agreements such as the Treaty Establishing Energy Community (TEEC) in South East Europe serve as agents for enforcement of the EU State aid acquis within broader international law. Aside from the legal aspects of the Case ECS-10/18 involving a guarantee for the construction of a coal power plant in Bosnia and Herzegovina, the analysis shows the equal importance of State aid related economic analysis for aid providers, beneficiaries as well as enforcement institutions under TEEC. Ministerial Council’s Advisory Committee, as the highest decision-making body, sent the message of the importance of prior economic assessments to both sides in the dispute.

Valencia Club de Fútbol: Every Advantage Has Its Disadvantage (and Vice Versa) · Case T-732/16 Valencia Club de Fútbol · Annotation by Doortje Ninck Blok and Gerard van der Wal journal article

Annotation on the Judgment of the EU General Court (Fourth Chamber) of 12 March 2020 in Case T-732/16 Valencia Club de Fútbol

Doortje Ninck Blok, Gerard van der Wal

European State Aid Law Quarterly, Volume 20 (2021), Issue 2, Page 284 - 291

The General Court handed down a judgement in 2020 in which it annulled the Commission’s Decision regarding State aid granted to Valencia Club de Fútbol through a €75 million (regional) government guarantee. The Commission qualified the guarantee granted by a financial entity under the supervision of the Regional Government of Valencia, intended to cover the bank loans to Fundación Valencia to enable Fundación Valencia to acquire shares in Valencia Club de Fútbol (the beneficiary according to the Commission and General Court), as unlawful state aid in the meaning of Article 107(1) TFEU. This annotation elaborates on two pleas brought forward by Valencia Club de Fútbol: (i) manifest errors of assessment in the characterisation of an advantage and (ii) manifest errors of assessment when calculating the amount of aid. The General Court considered that the Commission made an error of assessment when applying the market economy operator principle, where the Commission did not carry out an overall assessment. Furthermore, the Commission did not sufficiently support the finding that there was no market price for a similar non-guaranteed loan. In their conclusion, the annotators address the application of the Guarantee Notice by the Commission.

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

State Measures That Mitigate an Undertaking’s Environmental Obligations · Case T-257/18 Iberpotash · Annotation by Daniel Vasbeck journal article

Annotation on the Judgment of the General Court (Second Chamber) of 16 January 2020 in Case T-257/18 Iberpotash v Commission

Daniel Vasbeck

European State Aid Law Quarterly, Volume 19 (2020), Issue 3, Page 378 - 383

This case concerns the interplay between environmental obligations and State aid rules. The General Court upheld the Commission’s finding that Spain had granted State aid to the applicant, a mining operator, through two measures that alleviated its restoration obligations. The first measure related to guarantees covering environmental obligations. Their level was set by the State but the guarantees themselves were issued by a private bank. The General Court, based on an extensive interpretation of the State resources criterion, considered that a State measure reducing such guarantees below the requisite level could create a sufficiently concrete risk of a burden on the State budget. The General Court’s interpretation is significant because it extends to all scenarios where (i) undertakings have to provide a guarantee to cover environmental risks and (ii) the State has a subsidiary obligation to intervene. The second measure related to environmental protection measures adopted by the State in lieu of an undertaking and which went beyond the mandatory level. The judgment highlights the risk that Member States seeking to achieve a higher level of environmental protection may grant an advantage to an undertaking by reducing its future environmental exposure.

Football Glory, Credit Crisis and State’s Paternalism · Case T-766/16 Hércules CF v European Commission · Annotation by Begoña Pérez Bernabeu journal article

Annotation on the Judgment of the General Court (Fourth Chamber) of 20 March 2019 in Case T-766/16 Hércules CF v European Commission.

Begoña Pérez Bernabeu

European State Aid Law Quarterly, Volume 18 (2019), Issue 4, Page 549 - 554

Football is the most famous sport all around the globe and is also of great social and cultural significance. For this reason, State authorities may be tempted to provide additional support to professional football clubs which find themselves in an acute financial crisis through direct or indirect (like guarantees, tax or levies exemptions, loans on more favourable terms, transactions under non-market conditions) support measures. However, the football sector is not special for competition rules and the Commission has recently begun to enforce State aid rules in football. In the Hércules CF judgment, the General Court studies a situation that perfectly fits in the above-described situation since it analyses the grant of a public guarantee to a professional football club which is in a difficult financial position. Finally, the General Court annulled the Commission’s Decision on formal grounds on the basis of a comprehensive approach of the proof assessment carried out by the Commission. Keywords: Football; Indirect financial support; Guarantee; Loan; Lack of motivation.

The MEOP in the Larko Case · Case T-423/14 Larko Geniki · Annotation by Małgorzata Cyndecka journal article

Annotation on the Judgment of the General Court (Sixth Chamber) of 1 February 2018 in Case T-423/14 Larko Geniki Metalleftiki kai Metallourgiki AE v European Commission.

Małgorzata Cyndecka

European State Aid Law Quarterly, Volume 18 (2019), Issue 2, Page 180 - 185

When the State grants an economic advantage to an undertaking, it may avoid triggering Article 107(1) TFEU by complying with the Market Economy Operator Principle (MEOP). Yet, if the State invokes the MEOP in the course of the administrative procedure, it must establish unequivocally and on the basis of objective and verifiable evidence that it acted as a rational, profit-oriented, prudent and well-informed private market operator would have acted in similar circumstances under normal market conditions. If the State provides such information, the Commission is required to carry out an overall assessment, taking into account all relevant evidence in the case enabling it to determine whether the beneficiary would manifestly not have obtained comparable facilities from a private operator. While granting an economic advantage to an undertaking in financial difficulties does not necessarily amount to aid, the State must prove that it properly took into account the additional risk involved in a given measure when it decided to implement it. Ignoring such signs of a firm being in difficulty as increasing losses, diminishing turnover or mounting debt is not in line with the behaviour of a prudent private shareholder and it questions the economic rationality of the State’s conduct. This may entitle the Commission to qualify a given measure as aid. Keywords: MEOP; burden of proof; prudent shareholder; firm in difficulties; State guarantees.

Is there a Need for a New Concept of ‘Ex-ante Creditor’? journal article

Consequences of the FIH Holdings Judgment

Phedon Nicolaides

European State Aid Law Quarterly, Volume 17 (2018), Issue 3, Page 368 - 374

The amount of State aid in a loan or guarantee is not necessarily equal to the principal of the loan or the guaranteed amount. Moreover, the liability of the State and the risk borne by the State depend on the rights or collateral that the State secures before it grants a loan or guarantee. For this reason, State aid law needs a third concept to describe the behaviour of the State apart from that of ‘public authority’ or ‘private investor’. That third concept is labelled here as ‘ex-ante creditor’. It applies to those sums over which the State can exercise a claim without expecting ex-ante to receive a profit. Past loans or guarantees that contain State aid should be ignored, as prescribed by the Court of Justice, only when the State has no prospect of recovering any amount that is due to it or when it has no claim to exercise against the borrower who is the aid recipient. Keywords: Private investor; Private creditor; Loans; Guarantees; Past State aid.

Public Activities on Commercial Markets: The Issue of Cross-Subsidisation journal article

Michael Honoré

European State Aid Law Quarterly, Volume 16 (2017), Issue 2, Page 181 - 192

Public authorities are increasingly engaging in economic activities. This may give problems of competitive neutrality, as also highlighted by the OECD. The purpose of this article is to illustrate some of the complex – and often overlooked - State aid issues that may arise when an economic activity is carried out by a public authority, with particular emphasis on the issue of aid (cross-subsidisation) at the level of the public undertaking. It is contended that State aid law is a potent instrument for private operators faced with competing public undertakings, and that State aid law may in fact impose requirements upon public authorities in terms of accounting separation and benchmarking, which go further than the requirements under e.g. the State Aid Transparency Directive and antitrust-law (including Articles 101, 102 and 106 TFEU). Keywords: Notion of Advantage; Cross-Subsidisation; Public Undertakings; Separation of Accounts; Implied and Unlimited Guarantees.

DHL Leipzig-Halle  ∙ Case T-452/08 ∙ Annotation by Daniel Harrison journal article

Developments since the Judgment of the General Court in DHL Leipzig-Halle

Daniel Harrison

European State Aid Law Quarterly, Volume 16 (2017), Issue 3, Page 487 - 494

As the case of DHL-Leipzig Halle demonstrated, the possibility that contractual measures implementing an unlawful aid measure are invalid and unenforceable can give rise to a curious paradox: where the State assumes a contingent liability that has not yet crystallised, unenforceability of the contractual "advantage" may mean that unlawful aid is, like Schrödinger's cat, both present and absent at the same time. This article looks at the two cases since DHL Leipzig-Halle that have cited the judgment, before considering other areas in which contractual unenforceability of State aid measures can impose adverse – and often unfair – consequences on parties that have received no advantage or benefit from the aid measure in question: State guarantees and warranties and indemnities given to buyers of privatised businesses. Keywords: Unlawful Aid; State Guarantee; Borrower's Liabilities; Warranties and Indemnities; Privatisation; DHL Leipzig-Halle; Aer Lingus.

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