Birgitte Jourdan-Andersen, Astrid Skjønborg Brunt

European State Aid Law Quarterly, Volume 21 (2022), Issue 3, Page 266 - 277

This article presents and analyses Taxonomy and the new State Aid Guidelines on Climate, Environmental Protection, and Energy (CEEAG), two regulatory regimes applicable for financing and support schemes for energy and climate projects. The article also addresses the necessary infrastructure development for delivering Europe's 2030 and 2050 climate targets, Europe's Green Deal, where both private and public funding are required. The EU Taxonomy is a transparency tool and a classification system to propel sustainable private investments. CEEAG are key for establishing the required public funding and support schemes. CEEAG oblige the Commission and the EFTA Surveillance Authority (ESA) to pay particular attention to the Taxonomy. Not only will the private capital have to ‘tune in’ to the Taxonomy, but all public support will also have to be assessed in line with the Taxonomy screening criteria. In analysing the CEEAG and the Taxonomy, it is argued that the novel CEEAG guidelines and Taxonomy legislation need to be viewed together and combined with the sectorial climate and energy legislation. It is argued that for any energy or climate initiative, it is essential to have regulatory oversight and not to overlook these two important pieces of legislation while approaching the massive climate and energy sectorial legislation from the EU. Where measures meet the Taxonomy requirements, the State aid assessment can be simplified. In balancing the positive and negative effects of the aid, the Commission will pay particular attention to compliance with the ‘do no significant harm' principle. Keywords: CEEAG; taxonomy; infrastructure; Green Transition; Green Deal; Fit for-55

Lena Sandberg, Pilar Pérez-D’Ocon

European State Aid Law Quarterly, Volume 20 (2021), Issue 1, Page 101 - 107

Rass Holdgaard, Grith Skovgaard Ølykke, Rasmus Grønved Nielsen

European State Aid Law Quarterly, Volume 18 (2019), Issue 3, Page 274 - 292

The introduction of a more economic approach in State aid control should be viewed as a healthy development. However, before subjecting public spending to the constraints of thorough economic analysis it is necessary to ask whether State aid control is requisite and meaningful at all. A corner stone of this assessment is to determine the dividing line between exercise of public authority and economic activities. In this paper, we raise concerns about the Commission’s recent approach to distinguishing between exercise of public authority and economic activity in the context of general transport infrastructure. The Commission’s approach and notably its new focus on the concept of ‘commercial exploitation’ may overstretch existing Case law and thus the notion of aid. It is concluded that the Commission should return to a more nuanced and specific assessment of each activity when it draws this important line. Keywords: Concept of undertaking; Public authority; Economic activity; General transport infrastructure

Jakub Kociubiński

European State Aid Law Quarterly, Volume 17 (2018), Issue 1, Page 43 - 53

The Market Economy Investor Principle (MEIP) is used to determine whether State intervention is an economically rational investment, carried out under normal market conditions, or whether it constitutes State aid within the meaning of Article 107(1) TFEU. It consists of testing whether a hypothetical, rational private investor would have used its resources in the same manner as the State did. The author is of the opinion that this principle is deficient in assessing large infrastructural projects, and therefore would like to propose its revision. The argument runs that these projects have unique features, making any investment comparison, not only theoretical but also unrealistic and fictitious. Keywords: MEIP; Comparability; Large Infrastructure Projects; Investment Aid.

Thomas Gourdeau

European State Aid Law Quarterly, Volume 17 (2018), Issue 1, Page 125 - 127

Kristina Schattat, Natalia Budzynska

European State Aid Law Quarterly, Volume 17 (2018), Issue 3, Page 399 - 411

The compatibility assessment of a State aid measure is about balancing its negative effects on trade and competition in the common market with its positive effects in terms of a contribution to the achievement of well-defined objectives of common interest. One key element for the Commission’s so-called ‘balancing test’ of operating aid under the 2014 Aviation Guidelines is an ex-ante business plan ensuring that the company managing the airport will be able to cover all operational costs as of 2024 at the latest. Another key element for the assessment is the analysis of the catchment area of concerned airports. This article discusses the role of financial and economic analysis and evidence in this balancing test. The Commission Decisions published so far on this type of aid have not included many technical details about the economic and financial analysis of the Commission’s assessment. Neither has the Commission published specific guidance for the Member States on these elements. This article aims to shed light on these aspects by not only reviewing the decisional practice of the Commission but by sharing the practical experience of the authors with helping Member States to receive the Commission’s approval for granting operating aid to regional airports. Keywords: Balancing Test; Compatibility Assessment; Economic and Financial Analysis; Operating Aid; Airport; Infrastructure; Aviation Guidelines 2014; Notification; Business Plan; Operating Funding Gap; Cost of Capital; Catchment Area.

Marianne Clayton, Egill Olafsson, Maria Segura

European State Aid Law Quarterly, Volume 17 (2018), Issue 2, Page 282 - 289

On 15 March 2018, the General Court annulled a Commission Decision which considered that the Spanish authorities had not granted state aid in favour of Fred Olsen through some measures relating to the port of Puerto de Las Nieves in the Canary Islands. A competitor, who had complained to the Commission about the said measures, applied for annulment of the Commission’s Decision on the grounds that the Commission should have opened the formal investigation procedure resulting from the fact that it had encountered serious difficulties. Even though the Decision had been appealed on the grounds of procedure, by its nature, the Court had to go into the substance of the case. The line between procedure and substance can be a fine one. Keywords: Opening Formal Investigation; Serious Difficulties; Use of State-Owned Infrastructure.

Ana Trías

European State Aid Law Quarterly, Volume 16 (2017), Issue 2, Page 193 - 208

In the Mediaset case, the lower Court made a key statement upheld by the higher Court on appeal: the lack of technological neutrality of a measure is linked both to the presence and the incompatibility of State aid. Scholarly literature has not yet fully explored the procedural and material impact of this finding, called the ‘decoder doctrine’. This paper aims at asserting the legal nature, content and impact of said doctrine on State aid for network infrastructure development. For this purpose, it explores the emergence, scope and rationales of the technological neutrality principle on which the decoder doctrine relies, and studies its application to State aid targeting broadband and electric vehicle charging infrastructure. This analysis enables (1) an interpretation of the concept of technological neutrality in State aid law based on the Commission’s definitions and the Mediaset findings and (2) an assessment of key decision-making criteria against this benchmark. Keywords: Mediaset; Decoder Doctrine; Network Infrastructures; Broadband; Sustainable Transport; Electrical Mobility.

Antigoni Lykotrafiti

European State Aid Law Quarterly, Volume 16 (2017), Issue 2, Page 299 - 309

This annotation focuses on the latest (out of three) European Commission decisions on the financing of the new Berlin airport by its public shareholders. The decision is important because it deals with a case having a great impact on the Single Market. Moreover, it constitutes the first example of application of the private investor test in airport financing cases after the publication of the Commission Notice on the notion of State aid – the jewel in the crown of the State Aid Modernisation initiative. The commentary points to the link between politics, law and economics in high-profile State aid cases, questioning the effectiveness of EU State aid control. Keywords: Market Economy Investor Principle; Airport Infrastructure; Airport Operator; Traffic Forecast; Severability; Predictability.

Gábor Potvorszki

European State Aid Law Quarterly, Volume 16 (2017), Issue 4, Page 617 - 633

Under the State aid rules, aid granted to port development shall not have been exempted from Article 108(3) of Treaty on the Functioning of the European Union (TFEU) if it constitutes State aid falling under Article 107(1) of TFEU due to lack of block exemption before entering into force the amended GBER. Up until now the directly applicable legal base for investment aid to intermodal port projects is Article 93 of TFEU, which under aid meeting the needs of coordination of transport shall be compatible with the Treaties. State aid for port development had to be assessed on a case by case by the European Commission (COM). For the notified State aid measure the compatibility criteria follows the logic such as i. overall goal of the project, objective of common interest, ii. appropriateness of aid, iii. impact of the aid on competition and trade, and iv. justification of the necessity and proportionality of the aid and incentive effect. Following the above mentioned logic this article intends to give a summary and comparative analysis through the examples of and lessons learned from Hungarian cases. Keywords: Port Development; Investment Aid; Compatibility; State Aid.