Anna Panarella

European State Aid Law Quarterly, Volume 22 (2023), Issue 1, Page 101 - 106

On 24 March 2022 the Court of Justice of the European Union (CJEU) in Case C-656/20 P Hermann Albers v European Commission issued a ruling on whether the transfer of public funds between public authorities constitutes State aid within the meaning of Article 107(1) of the Treaty on the Functioning of the European Union. The main issue underpinning this case is the qualification of the municipal transport authorities receiving funds as ‘regulators’ or ‘undertakings’ in light of their ownership interests in local transport enterprises. The case provides an opportunity to investigate the boundaries of the notion of ‘undertaking’ under EU competition and State aid law. To this end, the analysis focuses, on the one hand, on the constitutive elements of the notion at issue, and, on the other hand, it takes into consideration the notion of ‘emanation of a State’ that can be used for the correct qualification of complex entities performing multiple activities at the same time. The analysis shows that State ownership alone has no bearing on whether a certain public entity qualifies as an undertaking or not.

Benjamin Linke

European State Aid Law Quarterly, Volume 21 (2022), Issue 3, Page 328 - 331

Peter Hodál, Demian Boška

European State Aid Law Quarterly, Volume 21 (2022), Issue 3, Page 338 - 339

Eleni Leftheriotou, Katerina Nikolaidou

European State Aid Law Quarterly, Volume 21 (2022), Issue 4, Page 430 - 435

In this case note we comment the findings of Case C-251/21 regarding Article 30 of Regulation (EU) No 1305/2013 on support for rural development by the European Agricultural Fund for Rural Development. In particular, the aid applied for in respect of a micro-reserve, created in a forest in pursuance of the objectives of Directive 2009/147/EC on the conservation of wild birds, falls within the scope of Article 30. Furthermore, we comment as well as that  Commission Regulation (EU) No 702/2014 declaring certain categories of aid in the agricultural and forestry sectors and in rural areas that are compatible with the internal market in application of Articles 107 and 108 TFEU has the meaning that aid applied for on the basis of Regulation No 1305/2013, in respect of a micro-reserve created in a forest in pursuance of the objectives of Directive 2009/147, by an undertaking in difficulty, within the meaning of Article 2(14) of Regulation No 702/2014, cannot be declared compatible with the internal market under the latter 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.

Sami Hartikainen

European State Aid Law Quarterly, Volume 19 (2020), Issue 3, Page 359 - 364

Economic continuity is not a new topic in State aid recovery cases. However, a final satisfactory solution has yet to be established. The significance of the purchase price in asset deals especially remains unclear. The General Court’s judgment would seem to suggest that the question of as to whether an asset deal is made as ‘a going concern’ might be a more decisive factor than the price. While the case remains under appeal before the Court of Justice, taking a closer look at the details of the case is already warranted.

Jessica Bracker, Schéhérazade Oozeerally

European State Aid Law Quarterly, Volume 19 (2020), Issue 2, Page 212 - 219

The Case T-696/17 Belgian Sea Ports relates to an action for annulment introduced by the port authorities of Antwerp and Bruges against the European Commission Decision 2017/2115 which found that Belgian port operators had benefited from incompatible State aid through an exemption from corporate tax. This case is of interest in that it sheds light on the difficulties of establishing that an entity is not an ‘undertaking’ in circumstances where the latter performs mixed activities which are both economic and non-economic in nature. Moreover, it provides yet another confirmation that the application of the ‘three step’ analysis for the assessment of selectivity is not always a straightforward exercise. Lastly, it confirms that an aid beneficiary cannot rely on an unlawful aid received by a third party to allege a breach of the principle of equal treatment.

Rass Holdgaard, Grith Skovgaard Ølykke, Rasmus Grønved Nielsen

European State Aid Law Quarterly, Volume 18 (2019), Issue 3, Page 274 - 292

The introduction of a more economic approach in State aid control should be viewed as a healthy development. However, before subjecting public spending to the constraints of thorough economic analysis it is necessary to ask whether State aid control is requisite and meaningful at all. A corner stone of this assessment is to determine the dividing line between exercise of public authority and economic activities. In this paper, we raise concerns about the Commission’s recent approach to distinguishing between exercise of public authority and economic activity in the context of general transport infrastructure. The Commission’s approach and notably its new focus on the concept of ‘commercial exploitation’ may overstretch existing Case law and thus the notion of aid. It is concluded that the Commission should return to a more nuanced and specific assessment of each activity when it draws this important line. Keywords: Concept of undertaking; Public authority; Economic activity; General transport infrastructure

Michael Honoré

European State Aid Law Quarterly, Volume 16 (2017), Issue 2, Page 181 - 192

Public authorities are increasingly engaging in economic activities. This may give problems of competitive neutrality, as also highlighted by the OECD. The purpose of this article is to illustrate some of the complex – and often overlooked - State aid issues that may arise when an economic activity is carried out by a public authority, with particular emphasis on the issue of aid (cross-subsidisation) at the level of the public undertaking. It is contended that State aid law is a potent instrument for private operators faced with competing public undertakings, and that State aid law may in fact impose requirements upon public authorities in terms of accounting separation and benchmarking, which go further than the requirements under e.g. the State Aid Transparency Directive and antitrust-law (including Articles 101, 102 and 106 TFEU). Keywords: Notion of Advantage; Cross-Subsidisation; Public Undertakings; Separation of Accounts; Implied and Unlimited Guarantees.

Adrien Giraud, Sylvain Petit

European State Aid Law Quarterly, Volume 16 (2017), Issue 2, Page 310 - 315

On 21 December 2016, in the Spanish fiscal aid cases, the Grand Chamber of the Court of Justice of the European Union struck down the General Court’s attempt of November 2014 to introduce an innovative interpretation of the notion of selectivity. Whereas the General Court had required the identification of a category of undertakings when a fiscal measure is potentially accessible to all undertakings, the Court of Justice adopted a rather conservative approach and merely restated its settled case-law. This case note analyses the law as restated by the Court and addresses some of the criticisms that have recently surfaced. Keywords: Fiscal Aid; Notion of Selectivity; Category of Undertaking; Discrimination; Burden of Proof.