Hubertus Bardt

European State Aid Law Quarterly, Volume 19 (2020), Issue 4, Page 430 - 439

State intervention in market processes has always been controversial within the European Union and its Member States. Since the beginning, industrial policy in Germany and the EU has been a mixture of vertical and horizontal instruments with a focus on horizontal approaches. State aid control has led to a more rule-based use of this instrument. Subsidies related to industrial policy have been significantly reduced in the last 20 years and play only a minor role for European countries. However, transformative developments with potential disruptive effects may now require a more active approach to industrial policy, where State aid can play a greater role. Climate change and the necessity to finance low-carbon production capacities that are not competitive on international markets can justify financial assistance. At the same time, trade conflicts with China are at least partly caused by uncontrolled State aid in the State-capitalist Chinese economic system. An international agreement on State aid rules would be a better solution than continuous trade distortions or countermeasures in form of additional European subsidies. Finally, the Covid-19 crisis has triggered additional public funds for private companies. While short-term rescue measures and medium-term investment programmes are important, a return to lower pre-crisis level of State aid and government intervention into market processes cannot be taken for granted. Keywords: industrial policy; transformation; economic crisis; Germany; China

Jacob Kornbeck

European State Aid Law Quarterly, Volume 18 (2019), Issue 2, Page 138 - 156

Whereas discussions of the applicability of EU law to the sport sector have tended to focus on the ‘specificity’ of the private rules (lex sportiva) of sports governing bodies (SGBs), embracing ‘specificity’ carries the risk of exempting specific legal entities rather than specific activities worthy of exemption because linked to specific public policy objectives. However, as this exercise has yielded dissimilar results in different areas of EU law, there is scope for one area to learn from the decisional practice and case law of another area. It is submitted that an emerging ‘access to sport’ doctrine can be identified in the field of EU State aid law, already inherent in the relevant legal requirements, including Commission Reg. 651/2014 and Notice C/2016/2946, as confirmed by the decisional practice of the Commission as well as recent case law including Alpenverein [2016] and Hamr Sport [2016]. The field of EU VAT law could benefit from some of the insights generated within State aid law for, while the legal framework is different, as defined in Article 113 TFEU, the recent case law has engendered a questionable doctrine, notably in English Bridge Union [2017], making the physicality of the activity the yardstick while, crucially, dependent on formal recognition by SGBs. The paper will argue in favour of adopting a health-enhancing physical activity (HEPA) doctrine, as already enshrined in relevant EU sport soft law and, indirectly, within the area of EU State aid law. Keywords: VAT; Sport; Specificity; Access to sport; Public policy; Health-enhancing physical activity (HEPA).

Caroline Buts, Phedon Nicolaides, Hans Pirlet

European State Aid Law Quarterly, Volume 18 (2019), Issue 4, Page 489 - 509

Despite the improvement of the State aid rules on Research, Development and Innovation (RDI) during the past decade, stakeholders have claimed that the current rules are at points ambiguous, which results in a negative impact on innovation. By means of an exploratory case study and participatory action research, this article aims to identify the ambiguities in the RDI rules. While the rules are detailed and overall well explained, we detect three themes where ambiguities arise, ie non-economic activities, price calculation of goods or services provided by research organisations, and ancillary activities of research organisations together with the 20% threshold. For each of these categories, we discuss what constitutes a ‘safe’ interpretation of the concepts involved. This entails an interpretation that is in line with the case law as well as with the spirit of State aid control. Where appropriate and possible, we provide examples as well as suggestions for their practical implementation. Next to providing guidance regarding the detected ambiguities, this article aspires a contribution to the forthcoming revision of the State aid rules for RDI. Keywords: State aid policy; Research, Development and Innovation; GBER; RDI Framework.

Sarah Beeston, Pim Jansen, Kiek Brink

European State Aid Law Quarterly, Volume 17 (2018), Issue 3, Page 328 - 337

The European Commission sees the ports sector as a driving force for economic growth and regional development in Europe. It has recently developed various policy initiatives in this sector and taken measures whereby State aid control forms the key element. The Commission has opted for an approach based on two interlinked pillars. First, the Commission intends to create a (more) level playing field among European Union Member States, by using State aid rules to curb tax benefits for (public) companies in the ports sector. Second, further to the State Aid Modernisation Programme, the Commission is, to an increasing extent, pursuing an active European economic policy in the ports sector by means of exemptions from the prohibition of State aid. As a result, certain aid measures targeting market failures and objectives of a common European interest are permissible. In this article we will provide an analysis of recent developments and place them in their legal and policy-related context. We will specifically discuss the impact of these developments on seaports in the Netherlands.

Luca Rubini

European State Aid Law Quarterly, Volume 16 (2017), Issue 4, Page 643 - 644