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Welcome to the Jungle! journal article

Identification of Foreign Subsidies Under the New EU Foreign Subsidies Regulation

Philipp Reinhold, Thomas Weck

European State Aid Law Quarterly, Volume 23 (2024), Issue 1, Page 22 - 34

The new industrial competition in the digital and ecological age has led to a global subsidy race. Against this backdrop, the EU's new instrument for foreign subsidies seems to have come at just the right time. However, the initial euphoria, particularly among companies in the EU that are under strong competitive pressure from China, has faded. There are more and more complaints about the extreme lack of clarity, particularly with regard to the comprehensive notification obligations, which is leading to considerable legal uncertainty. Until more detailed guidelines and/or exemptions are published, a step-by-step approach regarding the individual requirements and a corresponding risk assessment are essential. This also includes a better understanding of the concept of a foreign subsidy envisaged by the EU. Keywords: FSR; Foreign Subsidies Regulation; Merger; Public Procurement; Notification


The Three Poisons of Post-Covid State Aid Control: journal article open-access

Emerging Trends in Interpretation and Legislative Approach to Member States’ Aid Measures

Jakub Kociubiński

European State Aid Law Quarterly, Volume 22 (2023), Issue 1, Page 4 - 16

Even though the economic situation remains precarious, the Covid-19 economic shock has subsided enough to allow us to take stock of the European Union (EU) responses to the pandemic and appraise them in the context of emerging trends. The author argues that there are early precursors of such trends – referred to as the ‘Three Poisons’ – observable in interpretive and legislative approaches to Member States’ aid measures. These are: the easier justification of extended lifelines without adequately recognising the need for adaptation to new market conditions, and moral hazard associated with subsidy dependence; the blurring of lines between what is theoretically rational and what is obtainable under crisis market conditions thereby distorting the results of the Market Economy Operator Test; the increasing reliance on ad hoc frameworks, and highly situation-specific interpretations potentially eroding the pre-existing acquis. In this context, the purpose of this article is to identify post-Covid trends which negatively affect or might affect the long-term effectiveness of the EU State aid control system. Based on this, to assess whether these ‘poisons’ can and should be opposed. This analysis will conclude with de lege lata and de lege ferenda recommendations. Keywords: COVID-19; market economy operator test; MEOP; moral hazard; ad hoc regulation; common assessment criteria


Petra Flašker and the Notion of Doubts in the Context of Preliminary Investigations of Both New and Existing Measures · Case T-392/20 Flašker v Commission · Annotation by Marianne Clayton, Gaétan Roelants du Vivier and Matthieu Jamart journal article

Annotation on the Judgment of the General Court (Fourth Chamber) of 27 April 2022 in Case T-392/20 Flašker v Commission

Marianne Clayton, Gaétan Roelants du Vivier, Matthieu Jamart

European State Aid Law Quarterly, Volume 22 (2023), Issue 1, Page 89 - 94

The judgment of the General Court in Case T-392/20 Flašker v Commission addresses the procedural concept of serious difficulties and the scope of the Commission’s obligation, when investigating complaints, to carry out a thorough examination beyond the mere information provided by the complainants and the national authorities which is also applicable in the context of existing aid. In particular, the General Court reaffirmed the Commission’s responsibility to conduct a proper investigation when faced with serious allegations and insisted that the Commission cannot rely on the fact that the complaint may not be sufficiently substantiated as an argument for dismissing it. More novel, the General Court noted that the Commission had disregarded the existing procedural rules by adopting a decision finding that, assuming that a measure constitutes aid, it amounts to existing aid, but unfortunately did not draw any further conclusions.






State Aid for New Nuclear Power Plants under the Plethora of EU Environmental Regulations journal article

Sebastian J Kasper

European State Aid Law Quarterly, Volume 21 (2022), Issue 3, Page 251 - 265

Climate change has become one of the critical matters of European Union (EU) Law. Hence, the EU Member States are about to transform their respective energy supplies from mainly fossil fuels to climate-neutral sources. This transformation process requires time, as the security of energy supply must be ensured (see Article 194(1)(b) of the Treaty on the Functioning of the European Union). An approach favoured mainly by France and argued by several parties across Europe is to rely heavily on nuclear power and to invest in (new) nuclear reactors until 2050. Against this background, the question arises whether the EU Member States can support the transformation process by granting State aid for nuclear power plants despite the commonly known risks. Since the European Commission’s recently published Guidelines on State aid for climate, environmental protection and energy 2022 exclude nuclear energy from its scope, a broader review of the European Treaties, including the Euratom Treaty, as well as secondary and tertiary instruments, must be conducted to answer this question. Considering that nuclear energy has, following the Joint Research Centre’s risk assessment, recently been included in the Taxonomy Regulation for a transitionary period, granting State aid for nuclear reactors is likely to be still compatible with EU law upon the European Commission’s discretion, but not for long. Keywords: nuclear power; Taxonomy Regulation; Hinkley Point C; environmental protection; Euratom Treaty