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State Aid and the Free Movement Provisions · Case C-598/17 A-Fonds v Inspecteur van de Belastingdienst · Annotation by Marc Custers and Boyd Wolffers journal article

Annotation on the Judgment of the Court of Justice (First Chamber) of 2 May 2019 in Case C-598/17 A-Fonds v Inspecteur van de Belastingdienst.

Marc Custers, Boyd Wolffers

European State Aid Law Quarterly, Volume 18 (2019), Issue 4, Page 561 - 566

This annotation explores the relation between the free movement provisions and State aid in the light of the A-Fonds Case. In A-Fonds, the Court of Justice of the European Union dealt with the question whether a national court may conclude that a measure infringes the freedom of capital with respect to a measure that had been declared State aid by the Commission. A finding that the national court may test the contested measure against the free movement provisions (for the years that the measure constituted existing aid) would have as its result that the measure must be made available to comparable foreign taxpayers. Existing aid should in that case be extended. But that would not have been the only result: such conclusion would have broad consequences. The CJ rules in the A-Fonds Case that the national court may not test the contested measure against the free movement provisions, but has ruled differently in other Cases when dealing with the same issue. This annotation provides an analysis of the different approaches that the CJ took when deciding whether a State aid measure may be tested against the free movement provisions together with the consequences of the different approaches. Keywords: Free movement provisions; Freedom of capital; Existing aid; New aid; National courts; Direct taxation.

Dual Remedy Against State Aid Decisions · Case C-135/16 Georgsmarienhütte · Annotation by Rene Brunner journal article

Annotation on the Judgment of the Court of Justice (Grand Chamber) of 25 July 2018 in Case C-135/16 Georgsmarienhütte GmbH and Others v Bundesrepublik Deutschland.

Rene Brunner

European State Aid Law Quarterly, Volume 18 (2019), Issue 3, Page 413 - 417

On 25 July 2018, the Court of Justice of the European Union handed down a ruling on the admissibility of the request for a preliminary ruling on the validity of a Commission Decision where the applicants in the main proceedings did not bring an action for annulment against that Decision before the General Court. The judgment Georgsmarienhütte re-evaluates the interrelationship between the action for annulment and the preliminary reference procedure and is, in essence, a reiteration of the TWD doctrine established already in 1994. Keywords: Action for annulment; Preliminary ruling procedure; Dual remedy; Parallel proceedings; National courts; TWD doctrine.

Italian Court Awards Damages to Beneficiaries for Unlawful Implementation of Aid  ∙ Court of Appeal of Cagliari of 13 June 2017 ∙ Annotation  by Francesco Maria Salerno and Federico Macchi journal article

Annotation on the Judgment of the Court of Appeal of Cagliari of 13 June 2017

Francesco Maria Salerno, Federico Macchi

European State Aid Law Quarterly, Volume 17 (2018), Issue 2, Page 311 - 315

The case in comment illustrates the application of State aid rules by a national court. Moreover, the case deserves to be brought to the attention of a wide readership because it concerns a rare case of award for damages to the beneficiary of the aid. By adjudicating in favour of the beneficiary, the Italian court recognized the peculiarities of the case at issue. At the same time, the ruling raises general questions of consistency with EU law, which are likely to become even more salient as the cooperation between Commission and national courts in the enforcement of State aid rules increases. Keywords: National courts; Damages; State liability; Legitimate expectations.

DEI v European Commision  ∙ C-590/14 P ∙ Annotation by Mihalis Kekelekis journal article

Annotation on the Appeal Judgement of the CJEU (Tenth Chamber) in Case C-590/14 P DEIof 21 October 2016 (the Follow-Up of Case T-542/11 Alouminion v European Commission)

Mihalis Kekelekis

European State Aid Law Quarterly, Volume 16 (2017), Issue 2, Page 291 - 294

The notion of existing aid has a huge importance in State aid control. Procedural rules for existing aid differ from those regarding new aid. The consequence of granting new or existing aid is also different: from recovery to a proposal to adopt appropriate measures and modify the scheme. As other notions in the State aid field, despite its importance, the notion of existing aid is still evolving by the case-law of the EU courts. This should be an objective concept but as this judgment reveals, it may also be influenced by a subjective analysis regarding State aid compatibility. This judgment also clarifies the role of national courts in the State aid field. National courts must not only serve as guarantors of the direct effect of Article 108(3) TFEU but also as potential aid granting authorities. Keywords: Existing Aid; New Aid; Recovery; Duration; Alteration of an Existing Aid; National Courts; Notification.

ARTICLES - STATE AID AND NATIONAL JURISDICTIONS ∙ Co-Operation and Good Faith: State Aid Rules and National Courts – Procedural and Interpretive Consequences journal article

Adam Scott

European State Aid Law Quarterly, Volume 16 (2017), Issue 3, Page 354 - 366

This article examines implications of EU State aid law for tasks that a national court must undertake, may undertake and also tasks that they must not undertake because such tasks are in the jurisdiction of the Commission. It examines ways in which the Commission should be asked to assist the national courts; the questions that a national court should (or may wish to) put to the Commission and instances in which the Commission may wish to intervene as an amicus curiae. Interaction of substantive and procedural law at EU level with their counterparts at national level is seen to be important in ensuring that EU law is effectively and equivalently applied nationally. Keywords: National Courts; Procedural and Interpretive Guidance; Amicius Curiae; Preliminary Ruling; Black Cabs.

ARTICLES - STATE AID AND NATIONAL JURISDICTIONS ∙ Recovering Unlawful and Incompatible Aids by National Courts: CELF and Scott/Kimberly Clark Cases journal article

Denis Jouve

European State Aid Law Quarterly, Volume 16 (2017), Issue 3, Page 367 - 376

In CELF and Scott/Kimberly Clark cases, the Court of Justice clarified the role and the power of national courts to recover unlawful State aids. This fundamental role to protect individuals’ rights varies depending on Commission intervention. When the Commission has issued a final decision, national courts become the guardian of this decision, they have to control the execution in national law. In this situation, their room for manoeuvre is reduced. Pending a final Commission decision, it is for the national court to safeguard the rights of individuals and the effectiveness of Article 108(3) of the Treaty. Therefore, national courts shall take all relevant measures in order to protect individuals’ rights and to stop unlawfulness. It is forced to act even if Commission has decided on State aid compatibility but it has more freedom and it is possible to not order recovery. Keywords: Recovery; Unlawful Aid; Incompatible Aid; National Courts; CELF; Scott/Kimberly Clark.

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