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Nürburgring: Limited Scope to Challenge the Competitive Purchase of Assets That Have Received Aid · Cases T-353/15 NeXovation/European Commission and T-373/15 Ja zum Nürburgring/European Commission · Annotation by Irene Moreno-Tapia Rivas and Victoria Riv journal article

Annotation on the Judgments of the General Court (First Chamber, Extended Composition) of 19 June 2019 in Cases T-353/15 NeXovation/ European Commission and T-373/15 Ja zum Nürburgring/European Commission

Irene Moreno-Tapia, Victoria Rivas Santiago

European State Aid Law Quarterly, Volume 19 (2020), Issue 2, Page 220 - 224

Almost a century after the construction of the German racing circuit Nürburgring, economic problems obliged the Land of Rhineland-Palatinate to finance a luxury complex around the race track with the purpose to save the park in economics terms. However, after having received a complaint, the European Commission started an investigation procedure which ended with a Decision on the State aid implemented by Germany for Nürburgring. In the meantime, the Nürburgring assets were sold through a tender process managed by the German Government under the rules agreed with the European Commission and the administrators of the assets. The Commission Decision determined that the measures in favour of the owners of Nürburgring were unlawful and incompatible with the European market rules; in addition, the European Commission decided, first, that any potential recovery of the aid would not concern the buyer of the assets; and, second, that the sale of the assets in the framework of an open, transparent and non-discriminatory tender process did not constitute State aid. The General Court upheld the Decision. Both judgments, T-353/15 and T-373/15 are currently appealed by both complainants before the Court of Justice.


A New Boost to National Recovery? · Case C‑349/17 Eesti Pagar · Annotation by Svein Terje Tveit journal article

Annotation on the Judgment of the Court (Grand Chamber) of 5 March 2019 in Case C‑349/17 Eesti Pagar AS v Ettevõtluse Arendamise Sihtasutus, Majandus- ja Kommunikatsiooniministeerium.

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.


Direct Concern in State aid Direct Actions · Joined Cases C-622/16 P to C-624/16 P Scuola Montessori v Commission · Annotation by Luca Carmosino journal article

Annotation on the Judgment of the Court (Grand Chamber) of 6 November 2018 in Joined Cases C-622/16 P to C-624/16 P Scuola Elementare Maria Montessori Srl v European Commission, European Commission v Scuola Elementare Maria Montessori Srl and European Commission v Pietro Ferracci

Luca Carmosino

European State Aid Law Quarterly, Volume 18 (2019), Issue 1, Page 71 - 75

On 6 November 2018, the Court of Justice rendered a judgment in a proceeding that opposed the Commission and the competitor of a beneficiary of an aid set up by Italy. One of the most interesting issues that the case presents is the question of regulatory acts, and the application of the notion of regulatory acts to State aid decisions. The case explores three elements in relation to admissibility: (i) State aid measures are not sui generis; (ii) State aid decisions further the general application nature of a national measure; and (iii) the assessment of direct concern requires some factual analysis already at the admissibility stage of the procedure. On the substance, the case is interesting since it defines the extent of the Commission’s duties in assessing whether to order the recovery of an illegal State aid.


The Commission’s New Recovery Notice journal article

A Handbook for the Recovery of Unlawful and Incompatible Aid

Simone Donzelli

European State Aid Law Quarterly, Volume 18 (2019), Issue 4, Page 528 - 539

In July 2019, following a public consultation, the European Commission adopted a new notice on the recovery of unlawful and incompatible aid, replacing the previous 2007 Notice. The new Recovery Notice represents the state of the art of the existing legislation and Case law about recovery policy. This article introduces the key topics of the Recovery Notice, from the general principles to infringement proceedings, passing through some crucial issues such as the identification of the beneficiaries, the quantification of the aid and recovery in the context of insolvency proceedings. Selected comments from the public consultation are also presented, analysed and discussed. The article, in line with the Recovery Notice, stresses the central role of cooperation between the Commission and the Member States to implement recovery Decisions and concludes that the Recovery Notice is a comprehensive tool to enforce State aid rules in line with the current regulatory framework and Case law of the Union Courts. Keywords: Recovery; Unlawful aid; Incompatible aid; Infringement; Insolvency.


The Individual Identification of Beneficiaries of State Aid and the Financing Mechanism · Case C-505/18 Copebi SCA v Établissement national des produits de l’agriculture et de la mer · Annotation by Federica Maldari journal article

Annotation on the Judgment of the Court of Justice (Fifth Chamber) of 13 June 2019 in Case C-505/18 Copebi SCA v Établissement national des produits de l’agriculture et de la mer.

Federica Maldari

European State Aid Law Quarterly, Volume 18 (2019), Issue 4, Page 567 - 570

The Case deals with a legal dispute concerning the recovery of unlawful State aid in the fruit and vegetable sector under a Decision of the European Commission (EC), between Copebi SCA, one of the beneficiaries of the involved funds, and the French Republic. The dispute concerns the scope of the Decision of the EC, in so far as Copebi considered that the funds used were not covered by the Decision, which did not specifically mention the economic committee which paid them to Copebi. The beneficiary also argued the measure could not be covered by the Decision, since the financing mechanism of the funds was different from that described in it. The issues were referred to the Court of Justice (CJ) for a preliminary ruling, which concluded that the Decision must be interpreted as covering the funds paid to Copebi despite the fact that it didn’t mention the grantor of funds nor exact financing mechanism. Keywords: Recovery order; Contingency plans; Scope of Decision; Identification; Financing mechanism.



The Never Ending ‘Saga’ of the Fallimento Traghetti del Mediterraneo · Case C-387/17 Traghetti del Mediterraneo · Annotation by Alessandra Franchi journal article

Annotation of the judgment of the Court of Justice (First Chamber) of 23 January 2019 in Case C-387/17 Presidenza del Consiglio dei Ministri v Fallimento Traghetti del Mediterraneo

Alessandra Franchi

European State Aid Law Quarterly, Volume 18 (2019), Issue 3, Page 391 - 397

This judgment continues the ‘saga’ related to the litigation between Fallimento Traghetti del Mediterraneo and the Italian State concerning the unlawful State aid granted to Tirrenia di Navigazione SpA as compensation for public service obligations from 1976 to 1980 and shows the complexity of the assessments by national courts on damages related to the granting of unlawful State aid. The CJ provides guidance on the notion of existing aid, clarifying that State aid measures which were granted in a period when the maritime cabotage market was not yet liberalized at Union level cannot be classified as existing aid because of the merely formal absence of liberalisation of that market, to the extent that those subsidies were liable to affect trade between Member States and distorted or threatened to distort competition. The CJ also emphasises the cooperation obligation of the national courts and their role in awarding damages related to the distortion of competition created by unlawful State aid. Member State cannot invoke the principle of legitimate expectation in case of breach of the notification obligation set in Article 108 (3) TFEU. Finally, the CJ clarifies that the ten-year limitation period set out in Article 15, paragraph 1, of Regulation 659/1999 (repealed by Regulation 2015/1589), only applies to Commission investigation under Article 108, paragraph 3, TFEU and only refers to the Commission’s power and time limit for recovery of illegal aid, but does not apply in damages proceedings before the national jurisdictions. Keywords: Existing aid; Recovery; National enforcement; Prescription; Damages.