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Recovery of Unlawful State Aid from the Purchasers of Assets Journal Artikel

Golo Bockholt

European State Aid Law Quarterly, Jahrgang 23 (2024), Ausgabe 2, Seite 166 - 172

Recovery of unlawful State aid from asset purchasers is a crucial aspect of restructuring undertakings, as it carries a substantial risk associated with the potential amount to be recovered. In this context, it is acknowledged that, in cases of economic continuity, unlawful State aid can be recovered from the purchasers of assets. This principle is well-established, notably in the case law of the judicature of the European Union and the Commission Notice on the recovery of unlawful and incompatible State aid. However, it is important to note that the criteria used for determining economic continuity do not provide consistent and legally secure standards. This lack of clarity in the criteria poses challenges for ensuring legal certainty in practical applications. The focus is the question of when economic continuity is established between the aid recipient and the purchaser, thereby enabling recovery of unlawful State aid from the purchaser. Keywords: asset deal; purchaser; recovery; economic continuity




Madeira Free Trade Zone: New or Existing Aid? · Case T-131/21 Região Autónoma da Madeira v Commission · Annotation by Jorge Risueño Journal Artikel

Annotation on the Judgment of the General Court (Fifth Chamber) of 21 June 2023, in Case T-131/21 Região Autónoma da Madeira v European Commission.

Jorge Risueño

European State Aid Law Quarterly, Jahrgang 22 (2023), Ausgabe 3, Seite 337 - 342

This case note concerns Região Autónoma da Madeira’s (RAM) action for annulment of the Commission decision relating the aid scheme SA.21259 (2018/C) implemented by Portugal in favour of the free trade zone of Madeira.1 The General Court’s judgment presents a unique opportunity to analyse some key State aid concepts, including procedural aspects, such as the admissibility of infra-State bodies; concepts relating to the notion of State aid, such as the selectivity criterion; and concepts relating to the phase of recovery of unlawful aid, including the principles of legitimate expectations, legal certainty and proportionality and the limitation period. This note also addresses the Court’s assessment of whether aid is new or existing.


Economic Continuity in State Aid Recovery Cases · Case C-890/19 P Fortischem a.s. v European Commission · Annotation by Sami Hartikainen Journal Artikel

Annotation on the Judgment of the Court of Justice (Ninth Chamber) of 29 April 2021 in Case C-890/19 P Fortischem a.s. v European Commission

Sami Hartikainen

European State Aid Law Quarterly, Jahrgang 21 (2022), Ausgabe 3, Seite 316 - 320

In State aid law, the question of economic continuity often arises when assets of a failing company are sold to a third party. The crucial question is whether the recovery of illegal aid shall be extended to the new owner, if the latter has paid market price for the assets. While the answer still depends on the actual circumstances of a case, the latest judgment in case Fortischem suggests that economic continuity is rather rule than an exception and that a new owner can not easily avoid the obligation to repay illegal aid, especially if the assets are used in a similar manner as by the previous owner. However, the Court of Justice does not go as far as the General Court in ignoring the significance of market price in the assessment.



When State Aid Goes Wrong: Journal Artikel

Member State’s Liability Towards the Aid Beneficiary – A Belgian Case Study

Julie Leroy

European State Aid Law Quarterly, Jahrgang 21 (2022), Ausgabe 4, Seite 384 - 396

A Member State which violates the standstill-obligation under Article 108(3) TFEU is not directly held responsible for his failure to comply with his obligations under EU law, as it is the aid beneficiary who will be obliged to repay the unlawful (and incompatible) State aid. This contribution evaluates if the aid beneficiary can nevertheless hold the Member State somehow responsible, through a damage claim based on the latter’s extra-contractual liability for the violation of EU law. The Belgian case study shows that such a claim can be successful, as the conditions of Articles 1382-1383 Old Civil Code might be fulfilled. However, the aid beneficiary is in a difficult position. One the one hand, this undertaking bears the ‘risk of proof’. On the other hand, a full compensation will be rare as, amongst others, the aid beneficiary’s own fault might lead to a liability apportionment. Finally, the obligation to repay the unlawful State aid (with interest) as such will never qualify as a damage that is eligible for a compensation, as this would undermine the effectiveness of EU law. Keywords: Article 108(3) TFEU; standstill-obligation; recovery of unlawful (and incompatible) State aid; liability of Member States; Belgium


KW v Autonome Provinz Bozen: Setting Out the Fundamentals on the Duty to Recover Illegally Granted State Aid · Joined Cases C-102/21 and C-103/21 KW v Autonome Provinz Bozen · Annotation by Stig Eidissen Journal Artikel

Annotation on the Judgment of the Court of Justice (Ninth Chamber) of 7 April 2022 in Joined Cases C-102/21 and C-103/21 KW v Autonome Provinz Bozen

Stig Eidissen

European State Aid Law Quarterly, Jahrgang 21 (2022), Ausgabe 4, Seite 415 - 418

The preliminary ruling of the Court of Justice in Joined Cases C-102/21 and C-103/21 addressed the expiry date of a Commission decision to authorise aid, and the obligation of Member States to recover illegally granted State aid. The Court of Justice reiterated its previous case-law setting out the duty of public authorities to recover illegally granted State aid on their own initiative. The judgment sets out the fundamentals of both the Commission’s and national authorities’ duty to recover State aid granted in violation of the standstill obligation clearly and concisely. Perhaps more novel, the judgment holds that Member States may consider GBER exemptions to limit the recovery sum.



2ND ESTAL PHD AWARD NOMINATIONS ∙ Recovery of Unlawful Fiscal State Aid in Belgium Journal Artikel

Julie Leroy

European State Aid Law Quarterly, Jahrgang 20 (2021), Ausgabe 3, Seite 325 - 336

This article, like my PhD thesis on which it is based, focuses on the recovery of unlawful fiscal State aid in Belgium. Currently, Belgium has no general legal framework for recovery procedures: neither for non-fiscal, nor for fiscal State aid. To the contrary, for the recovery of fiscal State aid, ad hoc-legislation was adopted in the past. On the one hand, the research evaluates if there is a need for a new legal framework for the recovery of unlawful fiscal State aid in Belgium, in the execution of a recovery decision from the European Commission. In order to make this evaluation, the existing ‘tax law route’ and ‘civil law route’ for fiscal recovery procedures are charted. Those routes are tested against ten evaluation criteria, which are deducted from EU law and national law. This evaluation clearly shows that there is a need for a new legal framework for the recovery of unlawful fiscal State aid in Belgium. Consequently, on the other hand, this research makes recommendations regarding the content and design of the new proposed framework. It is, amongst others, recommended to adopt general legislation that applies to all future fiscal recovery procedures in Belgium. Despite its focus on Belgium, several aspects of the research are also interesting for other EU Member States. Keywords: EStAL PhD Award; PhD research; recovery of unlawful (fiscal) State aid; Belgium; current framework; recommendations for new framework.