Alexandros Lymperopoulos

European State Aid Law Quarterly, Volume 23 (2024), Issue 1, Page 40 - 55

The economic security strategy that the EU has recently introduced signals a turn in EU trade policy. Once a zealous advocate of free trade, the EU has now decided to adopt a ‘yes, but’ approach in its trade relations. This paper argues that the new strategy has been influenced to a degree by the trade suggestions of the 2019 Franco-German Manifesto for a European industrial policy. This paper also analyses the proposed tools of the new strategy and discusses their efficacy. It argues that economic security is distinct from, yet related to, industrial policy and explains why and how State aid law and merger control have a role to play in achieving economic security. The following analysis highlights that EU State aid law is aware of and responsive to international subsidies and seems aligned with economic security considerations. Regarding competition law, however, the European Commission has yet to understand the potential contribution of merger control in pursuing economic security and is hesitant to include it in the toolkit of the economic security strategy. That being said, aligning State aid and merger control with economic security is not without contradictions or risks. Keywords: Economic Security; EU Trade Policy; Competition Law; Franco-German Manifesto For A European Industrial Policy.

Anna Nowak-Salles

European State Aid Law Quarterly, Volume 22 (2023), Issue 1, Page 86 - 88

Daniela Gschwindt, Julia Zöchling

European State Aid Law Quarterly, Volume 22 (2023), Issue 2, Page 225 - 229

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

Carole Maczkovics

European State Aid Law Quarterly, Volume 20 (2021), Issue 2, Page 315 - 317

Tej Gonza, David Ellerman, Gregor Berkopec, Tea Žgank, Timotej Široka

European State Aid Law Quarterly, Volume 20 (2021), Issue 1, Page 61 - 73

The sector of small and medium-sized enterprises is lately under immense pressure due to restrictive governmental response to the COVID-19 pandemic. One of the dominant issues is concerned with financial liquidity – the threat is large-scale insolvency, job losses in thousands, and disappearance of businesses from local communities. There is a time-tested solution in Spain and Italy that provides liquidity to such enterprises in a democratic manner by establishing employee ownership schemes. In addition to saving businesses, employee-owned firms proved to provide more resilient business structures that better withstand crises. Despite the concerns that such an aid scheme meets the indications of a general prohibition of State aid and is thus illegal, the doubts were scattered by the Commission's decision which offered guidance and clarification. Based on good practice, we propose a universal model that could be legislated in most EU Member States. Keywords: COVID-19; SMEs; liquidity constraints; employee ownership; Marcora law; Unico law; economic policy proposal

Raymond Luja

European State Aid Law Quarterly, Volume 20 (2021), Issue 2, Page 187 - 199

The European Commission proposed a Regulation to deal with the effects of foreign subsidies on the internal market. Undertakings involved in large mergers, acquisitions and upcoming joint ventures or those in the lead of submitting a tender may have to notify foreign subsidies directly or indirectly received in future. The proposal also allows the Commission to launch investigations into other foreign subsidies that distort the internal market. This contribution discusses both the material and formal framework as proposed and takes a first look at parallels and differences with the State aid regime governing intra-EU government subsidies, including guarantees and special tax treatment. The author recommends, inter alia, to clarify the concepts of ‘undertaking’ and ‘interim measures’, to limit notification to selective subsidies in the context of tenders, and to restrict the retroactive effect of the notification requirement in light of the administrative burden involved. Further suggestions to increase consistency and legal certainty have been included as well. As the new obligations imposed on undertakings may affect future public procurement procedures and concentrations, they should be given sufficient attention in time in order not to delay such procedures and to avoid fines or redressive measures. Keywords: foreign subsidies; common commercial policy; redressive measures; mergers; public procurement.

Kseniia Smyrnova, Erika Szyszczak

European State Aid Law Quarterly, Volume 19 (2020), Issue 1, Page 8 - 18

In recent years competition clauses (including the unique EU State aid rules) have been introduced into EU trade Treaties and in particular, the EU is developing a neighbourhood policy where trade should be open but on the same, or very similar regulatory terms as EU internal policies. One of the most advanced forms of competition clauses being used in a trade Treaty is the EU-Ukraine Association Agreement 2014 together with the Deep and Comprehensive Free Trade Agreement 2016. In particular Ukraine must establish a similar form of State aid control to the model used internally in the EU, linking the concepts of competition and market access. Within a relatively short period of time Ukraine has created a State aid unit within its Antimonopoly Committee (AMC) and this unit is responsible for scrutinizing and investigating a very large number of State aid notifications with a very small and inexperienced staff. This Article examines how the regulation of State aid has been transformed in Ukraine, contributing to an internal modernization of industrial policy, allowing for greater transparency and scrutiny of the use of public finances in Ukraine. In so doing, the Article identifies the challenges already faced by the AMC and the potential for improving the system of State aid control in Ukraine. Keywords: Ukraine; Industrial policy; Association Agreement; EU trade policy.

Ana Stanič

European State Aid Law Quarterly, Volume 19 (2020), Issue 2, Page 165 - 171

On 19 February 2020, the UK Supreme Court unanimously held that by virtue of Article 351 TFEU UK’s obligations under the ICSID Convention trump its duty of sincere co-operation under Article 4(3) TFEU to give effect to a State aid decision of the European Commission. In doing so, the UK Supreme Court also made clear that ICSID arbitral awards rendered by arbitral tribunals established pursuant to intra-EU BITs and ECT will be enforced in the UK. Whether in post-Brexit UK enforcement of intra-EU BITs and ECT arbitral awards will be refused on the grounds of being contrary to EU State aid law if sought pursuant to the terms of the New York Convention remains unclear given that State aid currently forms part of the on-going negotiations between the UK and EU regarding their future relations. Keywords: Micula, State aid, ISDS, Achmea, duty of sincere cooperation, public policy

Simone Lünenbürger, Clemens Holtmann, Juliette Delarue

European State Aid Law Quarterly, Volume 19 (2020), Issue 4, Page 418 - 429

The Commission has announced its intention to revise a series of State aid rules (GBER and a number of guidelines) in light of the Green Deal by the end of 2021. At the same time, the Commission is examining how competition policy can be more effective to combat climate change and contribute to the protection of the environment. This article demonstrates that environmental protection requirements can and must be integrated into the definition and implementation of the Union's State aid policy, not only when it comes to environmental aid. Article 11 TFEU provides for a legal obligation on the Commission to integrate environmental protection requirements into the definition and implementation of Union policies, including State aid policy. It is shown how this obligation can be integrated into the traditional assessment scheme, notably under Article 107 (3)(c) TFEU and how it can be broken down into concrete compatibility assessment criteria. Keywords: Green Deal; environmental protection; Article 11 TFEU; State aid policy; guidelines