Christos Nikolaos Kalyka

European State Aid Law Quarterly, Volume 22 (2023), Issue 1, Page 42 - 54

This article reviews the interaction between EU State aid control and free movement law. A critical assessment of the case-law suggests that both regimes contribute to the attainment of similar goals: the establishment of an undistorted market. Their complementary interplay suggests that some principles from the case law on free movement can be used as an interpretative tool in relation to State aid, especially in the assessment of material selectivity. Accordingly, the extent to which State aid control can assess the competence of Member States to pursue national objectives is explored. National objectives can be pursued, provided the measures incorporating them are consistent with the objective pursued. The assessment of consistency in essence adopts elements of the principle of proportionality which is used under free movement law and therefore it does not prevent the ability of Member States to promote national interests, rather it assesses the coherence of the regulatory standard used for the promotion of the objective. Keywords: selectivity; proportionality; national objectives; consistency

Sofie Holtan Lakså

European State Aid Law Quarterly, Volume 22 (2023), Issue 4, Page 356 - 370

This article is adapted from the author’s College of Europe Master’s Thesis which was awarded the Lexxion Publisher prize for the Best Thesis on EU State aid. One of the measures put in place to mitigate the effect of the Covid-19 pandemic on the European economy was the Covid-19 Temporary Framework. Adopted on 19 March 2020, it granted Member States flexibility under the State aid regime to support their national economies from their own pockets. While the relaxed rules were deemed necessary, the Framework was introduced with a known caveat: it is well-established that the granting of State aid distorts competition on the internal market. It is for the same reason that certain criteria have to be met for the Commission to approve the granting of aid, amongst them the principle of proportionality. This article argues that a large share of the aid approved under the Temporary Framework was in fact not proportionate to the shock caused by the Covid-19 pandemic, and should therefore not have been approved by the European Commission. The results demonstrate that the aids granted under the Temporary Framework cannot be considered proportionate in nature: of the 19 sectors analysed, the aid was found not to be disproportionate to the shock caused by the pandemic in only one sector. Keywords: Temporary Framework; proportionality; subsidy race; COVID-19

Phedon Nicolaides

European State Aid Law Quarterly, Volume 21 (2022), Issue 1, Page 31 - 42

This article reviews the evolving case law on Article 107(3)(b) TFEU. It is now established that State aid must be appropriate, necessary and proportional. However, this article finds that it is still not clear in the case law how they are to be applied in conjunction with each other. Several judgments of the General Court delivered in 2021 also indicate that the principle of proportionality can refer to both the amount of aid as well as to the scope of the aid measure. The 2021 judgments of the General Court represent a departure from previous case law in so far as they dispense with any assessment of the impact of State aid on trade and competition. Since aid on the basis of Article 107(3)(b) aims to remedy a serious economic disturbance, it is also presumed to be in the interest of all Member States. Pending cases before the Court of Justice may still reverse this new interpretation of the application of Article 107(3)(b). Keywords: Article 107(3)(b); appropriateness; necessity; proportionality; common European interest

Phedon Nicolaides

European State Aid Law Quarterly, Volume 20 (2021), Issue 3, Page 384 - 396

Challenges by Ryanair to Commission decisions that authorised Covid-19 related State aid have brought to the fore the important issue of discrimination in both individual aid measures and aid schemes. All State aid is to a certain extent discriminatory because it selectively favours certain undertakings over others which are in comparable situations. The question is how much discrimination is allowed under Article 107(2) and (3) TFEU, especially when Member States limit the number of eligible undertakings. The General Court has ruled that Member States are not obliged to grant State aid to any or all companies. They may limit the circle of beneficiaries. However, Member States may only grant aid that is appropriate for the objective it aims to achieve, necessary and proportionate for that purpose. This article argues that limiting the aid according to the extent of the links of the beneficiaries to the local economy appears to be a good proxy for the effectiveness of the aid, but it may also be disproportionately discriminatory because such links do not necessarily ensure that the beneficiaries actually contribute more to the local economy than non-beneficiaries or that they actually need the aid more than non-beneficiaries. Appropriately designed aid measures can reduce the degree of discrimination, by applying consistently and systematically objectively justified criteria, without compromising the effectiveness of the aid or forcing Member States to grant more aid than they can afford. The recent Court cases have exposed the hitherto unidentified conflict between the discretion of Member States to grant State aid only to a single or a few undertakings and the need to avoid disproportionate discrimination. Keywords: Article 107(2)(b); Article 107(3)(b); discrimination; proportionality; establishment; links with local economy.

Caroline Buts, Malgorzata Agnieszka Cyndecka, José Luis Buendía

European State Aid Law Quarterly, Volume 20 (2021), Issue 3, Page 397 - 426

Jean-Alexandre Vaglio

European State Aid Law Quarterly, Volume 20 (2021), Issue 1, Page 108 - 113

The General Court finally closed the IFPEN saga with its judgment delivered on 5 October 2020 and which raised many interesting points. First, IFPEN was peculiar in the sense that, contrary to EDF and La Poste, it was an EPIC undertaking pursuing mainly non-economic activities. Second, this judgment enables the General Court to refine and illustrate the simple presumption defined by the Court of Justice in the La Poste judgment on its EPIC status. Finally, this case provides another reminder of the burden of proof resting on the Commission when it demonstrates the existence of an advantage and defines the conditions of compatibility of a State aid measure.