Justyna Smela Wolski

European State Aid Law Quarterly, Volume 21 (2022), Issue 2, Page 153 - 172

This article explores the possible legal bases of the Proposal for a Regulation on Foreign Subsidies, which, at first glance, displays elements of competition, internal market, and common commercial policy. It is argued, in particular, that the Proposal does not fulfil the requirements regarding the use of Article 114 TFEU established in the Court’s case law despite its self-proclaimed goal of removing ‘distortions within the internal market’. Firstly, it is disputed that foreign subsidies can fall within the scope of a Member State’s competence. Secondly, even if the former reasoning were proved to be wrong, it is difficult to hold that the goal of the Regulation is to harmonize in order to prevent future obstacles to trade between Member States. In any case, should a general basis be needed due to the effects of the Regulation on the internal market, Article 352 TFEU would be a more plausible option, insofar as it applies to non-harmonisable areas and to the creation of new legal forms, such as foreign subsidies, which are at the crossroads of the notion of State aid of Article 107 TFEU and the notion of subsidy of the Anti-Subsidy Regulation. Nevertheless, it is concluded that the entirety of the Proposal could be based on Article 207 TFEU if a teleological and wide interpretation of the common commercial policy, such as that of Opinion 1/78, is followed. Notably, it is argued that the restoration of effective competition within the internal market is not a goal in itself, but rather a consequence of remediating undesirable trade-related behaviours of third countries. Finally, the role that the Regulation, if adopted, will play in Moldova and Ukraine is studied. Keywords: foreign subsidies; common commercial policy; trade; competition; internal market; legal basis

Svein Terje Tveit

European State Aid Law Quarterly, Volume 18 (2019), Issue 2, Page 186 - 191

On 5 March 2019, the Grand Chamber of the Court of Justice of the European Union (CJ) issued an important ruling clarifying the scope of the national authorities’ obligation to recover unlawful State aid and the test for ‘incentive effect’ — a requirement for an aid measure to benefit from the General Block Exemption Regulation (GBER). The CJ confirms that national authorities must recover unlawful State aid also in cases where the aid is granted (wrongfully) under the GBER as regional investment aid and the Commission has not adopted any Decision. The aid beneficiary may not rely on the principle of protection of legitimate expectations even if the granting authority had recommended the aid beneficiary to apply for aid knowing that work on the project had begun before the aid application was submitted. In cases where the EU rules on limitation period and interests are not directly applicable, national rules apply, so that the national authorities must seek full recovery of the unlawful aid and thereby ensure the effectiveness of State aid rules. Keywords: GBER; Recovery; National enforcement; Unlawful aid; National legal basis.

Federica Maldari

European State Aid Law Quarterly, Volume 18 (2019), Issue 3, Page 398 - 403

The Case deals with the decision of Portuguese authorities to put Banco Espirito Santo SA (BES) into resolution and to immediately create a ‘Bridge Bank’. The Portuguese authorities notified to the EC the proposal to grant €4.899 million of State aid to the ‘Bridge Bank’ by way of initial share capital. The EC concluded that the State aid at issue was compatible with the internal market. BPC Lux 2 Sàrl and the other subordinated creditors of BES initiated proceedings before national courts and ultimately to the Court of the Justice of the European Union. On 7 November 2018, the Court of Justice rejected the General Court’s Order to dismiss the action as inadmissible due to lack of interest. Consequently, the Court of Justice confirmed the principle that an interest in bringing annulment proceedings may arise where the annulment might benefit the applicant in pending proceedings before national courts. Keywords: State aid; Financial crisis; Subordinated creditors; Damages; Annulment proceedings; National legal basis.