Ulrich Soltész

European State Aid Law Quarterly, Volume 23 (2024), Issue 1, Page 35 - 39

The "incentive effect" is a rather technical issue under the State aid rules which is of huge practical importance. In a nutshell, this principle states that aid cannot be granted if the recipient had already started with the project before the application for aid was submitted. As this can lead to the complete refusal of funding, and because the recent case law - in particular the Eesti Pagar judgment (C-349/17) - is extremely harsh in defining the “start of works”, the “incentive effect” requirement has the potential to cause sleepless nights for aid recipients. Unfortunately, the most recent judgment in Est Wind Power (C-11/22) has not helped matters, but instead added to the confusion. Keywords: Incentive Effect; Aid Application; Start of Works; Early Project Start; Investment Aid

Wout De Cock, Gregory Kegels, Caroline Buts, Cind Du Bois

European State Aid Law Quarterly, Volume 22 (2023), Issue 2, Page 150 - 160

The current geopolitical situation has led to various calls for investment in Europe’s strategic autonomy, for example with regard to the defence and security sector. However, the possibility for Member States to grant financial support is restricted by EU State aid law, leading some stakeholders to argue that there is a friction between the geopolitical need to invest in Europe’s strategic autonomy on the one hand, and EU State aid law on the other. In this contribution, we examine whether Member States could avoid and/or alleviate this friction by invoking Article 346(1)(b) TFEU. This Treaty provision, often overlooked by legal scholars, stipulates that Member States may, in principle, take all measures they consider necessary for the protection of their essential security interests, without having to consider EU State aid law. By analysing relevant case-law of the EU Courts, however, we argue that the aforementioned Treaty provision has a limited scope, and that, therefore, Member States, in principle, must comply with the EU State aid rules when they contribute to Europe’s strategic autonomy. Keywords: Article 346(1)(b) TFEU; (open) strategic autonomy; investments; essential security interests; dual-use goods; R&D; defence sector

Tomáš Malatinec, Zuzana Palkechová, Zuzana Šutová

European State Aid Law Quarterly, Volume 22 (2023), Issue 3, Page 276 - 289

State aid, which encompasses regional investment aid, is a complex and multifaceted field, and it attracts experts from a number of disciplines, who seek to explore its intricate dynamics, regulatory frameworks, and impacts on market competition, innovation, and regional development. This paper provides a comprehensive overview of approved regional investment aid in Slovakia. The study draws on a unique dataset covering the period January 2018 to August 2023, sourced from the Ministry of Economy of the SR. During the monitored period, decisions or amendments to decision on regional investment aid in the amount of 213.317.603 € was issued in Slovakia. In the analysed sample, investment projects up to 50 mil. € predominate. The results indicate that during the observed period, the highest amount of regional investment aid was approved in Košice and Prešov regions (East Slovakia) which exhibit significant economic disparities compared to more prosperous areas within the country. From the comparison of various forms of regional investment aid, it is evident that in all eligible regions the highest amount was approved in the category of tax relief. The duration of the administrative procedure for approving regional investment applications decreased during the observed period. This paper also considers the pivotal role of evaluations of regional investment aid. Periodic evaluations serve as a barometer of policy performance and effectiveness. Keywords: investment incentives; regional investment aid; competition; regional disparities

Emma Besselink

European State Aid Law Quarterly, Volume 22 (2023), Issue 4, Page 433 - 435

Vasiliki Dolka

European State Aid Law Quarterly, Volume 21 (2022), Issue 1, Page 87 - 92

On 25 January 2022, the Court of Justice (CJ) overturned the judgment of the General Court (GC) that had annulled a 2015 European Commission (Commission) State aid decision declaring the payment of compensation granted by an arbitral award for violation of the 2003 Romania-Sweden Bilateral Investment Treaty, as unlawful and incompatible State aid. The GC annulled the Commission Decision for lack of competence ratione temporis to assess the measure as it considered the aid to have been granted before Romania’s accession to the EU. To the contrary, the CJ considers that the critical date at which the right to receive the aid is conferred to the beneficiary coincides with the granting of the right to compensation. On this ground, the CJ reinstates the Commission’s competence to review the aid. It also confirms the relevance of the Achmea ruling, by concluding that any consent that may have been given by an EU Member State to participate in international investment arbitration proceedings before its accession to the EU lacks any legal force post accession. The CJ has remanded the case back to the GC to decide on the merits.

Maria Segura

European State Aid Law Quarterly, Volume 21 (2022), Issue 3, Page 219 - 221

European State Aid Law Quarterly, Volume 21 (2022), Issue 3,

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

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.

Marija Momic

European State Aid Law Quarterly, Volume 18 (2019), Issue 3, Page 346 - 351

On June 18, 2019, the General Court rendered the judgment in the Micula Case, trying to put an end to the more-than-a-decade-long Micula saga. The judgment was expected to clarify the question of when an arbitral award for the compensation of damages can be regarded as State aid. The Case, however, was decided on a rationae temporis issue, and the General Court did not provide a more detailed guidance on that question. Since all the events relating to the State aid took place before Romania’s accession to the EU, the General Court concluded the Commission did not have the jurisdiction to review the legality of the State aid granted to Romanian investors. Considering that part of the compensation awarded to the applicants included the period after Romania’s accession, the General Court left open the possibility for the Commission to re-assess the compatibility of the compensation for the post-accession period. The Commission, however, has decided to challenge the ruling before the Court of Justice. Keywords: Award of Damages; Investor-State Arbitration; New Aid; Compensation.