Benedikt Freund, Moritz Seiler

European State Aid Law Quarterly, Volume 21 (2022), Issue 3, Page 302 - 309

In its decision of 14 February 2019, the General Court declared that the Commission had wrongly classified the Belgian ‘excess profit exemption system’ as an aid scheme according to Article 1(d) of Regulation 2015/1589. Allowing the Commission’s appeal, the Court of Justice found that the concept of an aid scheme according to Article 1(d) of Regulation (EU) 2015/1589 also encompassed a consistent administrative practice of a Member State tax authority. As a result, even where a Member State’s tax legislation itself is in compliance with State aid rules, the Commission is now in a position to establish the existence of an aid scheme, rather than having to prosecute every case individually, if a Member State tax authority has issued a significant number of (advance) tax rulings that deviate from its compliant legislation. After a series of mixed results in tax-related State aid cases, Magnetrol represents an important win for the Commission. We anticipate that its impact will be most pronounced in Member States where a single central authority is in charge of issuing tax rulings and tax collection (centralised model of tax administration).

Ilkka Aalto-Setälä

European State Aid Law Quarterly, Volume 21 (2022), Issue 2, Page 196 - 197

Federico Fichera

European State Aid Law Quarterly, Volume 21 (2022), Issue 4, Page 441 - 448

On 2 March 2022, the First Chamber of the General Court of the European Union gave its judgment in Case T-134/20 Huhtamaki v Commission, which concerned the right to access to the documents of a State aid investigation's file. While the judgment confirmed a number of principles that have been consistently upheld by the case law of the Court of Justice, it also raised some interesting points concerning the obligation for the European Commission to state reason in case of a well-circumstanced request for access to documents. The General Court explained that the Commission should, when assessing such requests, take into consideration and give a separate motivation for the different (sub)categories of documents requested, thus introducing an element of novelty in such an assessment. This approach, not fully developed by the General Court, might redesign the presumption of confidentiality that traditionally applies to documents belonging to a State aid investigation's file. Moreover, there is a risk that it would cause an increase of disputes linked to requests for access to documents in the context of State aid investigations and jeopardise the Commission's assessment of such requests.

Emma Besselink

European State Aid Law Quarterly, Volume 21 (2022), Issue 4, Page 454 - 457

Wolfgang Weiß, Eva Rom

European State Aid Law Quarterly, Volume 21 (2022), Issue 4, Page 368 - 383

The Union legislator has recently amended the Aarhus Regulation with the aim of bringing it more in line with the requirements the Aarhus Convention lays down. EU State aid decisions, however, remain excluded from its scope. This exclusion raises questions that form the object of this contribution. The article argues that the arguments presented to justify the continued exclusion of State aid review are not convincing. By not complying with the recommendations of the ACCC, the EU is in clear violation of international law. Therefore, the article deliberates over the necessary changes and possible exemptions for a sound implementation of the Aarhus Convention against the procedural specificities of State aid review, considering also the Commission´s recently presented options, which contain a number of problematic aspects. Keywords: Aarhus Regulation; Aarhus Convention; Hinkley Point C; internal review; ACCC

Antonis Metaxas

European State Aid Law Quarterly, Volume 21 (2022), Issue 1, Page 43 - 53

EU State aid rules, as a normative framework for ensuring and preserving undistorted competition in an equitable Common Market, traditionally constitute fundamental provisions of the EU legal order. Within this framework, the constructive cooperation of the Member State concerned with the European Commission is important when assessing the compatibility of an aid measure with the internal market. Notwithstanding the bilateral character of the control procedure, the participation of interested parties enables the Commission to get a better insight regarding the contested aid measure in order to conclude whether the latter is aligned with the Union’s interests and policies. In a dynamic global environment, these interests and prevailing priorities are constantly redefined (climate change is a prominent example). To the extent that this broader, dynamic scope of EU State aid control is accepted, the question arises if State aid measures adopted by a Member State for supporting a given activity shall be assessed not only on the grounds provided for by the Member State concerned, the recipient of the aid or its direct competitors. In this context, the author claims that aspects of procedural efficiency must be held in balance with the reality of normative interdependence and the necessity of compatibility among EU policies. Procedurally, the question now arises if and to which extent the interested party concept must be broadened so that, for example, organisations of the civil society obtain a ‘locus standi’ in EU State aid control administrative procedures as well as in respective judicial proceedings before EU Courts. Keywords: interested party; State aid control procedure; NGO; Aarhus Convention; Aarhus Regulation

Benjamin Linke

European State Aid Law Quarterly, Volume 20 (2021), Issue 1, Page 114 - 119

It is well enough understood that public authorities exercising official power are no undertakings and therefore cannot be recipients of State aid. What happens, however, if an authority receives funds for distribution in a sector (here: the transport sector) and at the same time owns or controls a company in given sector? Does the ‘dual role’ already lead to a classification as transfer of funds to a State aid relevant undertaking? The General Court had to decide on this question in connection with compensation means in local public transport that were transferred by the state to lower administrative authorities for distribution to transport companies. The local authorities were criticised of (allegedly) making the funds available to their own companies rather than private operators.

Karsten Naundrup Olesen, Caroline Heide-Jørgensen

European State Aid Law Quarterly, Volume 20 (2021), Issue 1, Page 51 - 60

State aid poses a threat to both the functioning of the EU internal market and to the national markets of each Member State. While Article 107 TFEU safeguards the internal market, Member States still need their own national regulation to protect competition at the national level. This article describes how individual Member States can meet the challenge of such regulation alongside EU State aid law. As a case study, we present the Danish approach. Denmark has developed a three-stringed approach that comprise 1) EU regulation, 2) the Danish Competition Act, and 3) additional codified and non-codified regulation with a more comprehensive scope than that of simply ensuring competition. Issues that need special consideration, including balancing competition against other public interests, are analysed and the effectiveness of this way of dealing with the question of State aid is considered. Keywords: multi-stringed regulation; national competition; effectiveness of regulation

European State Aid Law Quarterly, Volume 20 (2021), Issue 3, Page 439 - 440

Katrine Lillerud

European State Aid Law Quarterly, Volume 19 (2020), Issue 3, Page 314 - 328

The State aid reform appears to assimilate the rules already existing for cartels, abuse of dominance and mergers, by incorporating several of the competition law tools on information collection. The question asked is whether these tools initially designed to regulate undertakings are effective when regulating a State’s behaviour. The article draws a parallel to similar tools in competition law under Regulation 1/2003 and contextualise why change was introduced in the 2014 State aid reform. It investigates the use and success of the new tools by a case study of these new powers. The empirical data indicate that optimal use of direct access to information from third parties is hindered by a lack of transparency and too high thresholds for the Commission to use the new tools. Keywords: information collection, sector inquiry, fines, third parties, Regulation 1/2003, SAM