EStAL 1/2014


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Issue 1/2014

Table of Contents
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Christian Koenig
The Judgment in Case C‑284/12 under the Socratic Scrutiny of Good Justice
European State Aid Law Quarterly 1/2014: pp. 1-3 [Editorial]
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Whereas good governance is often used as a buzzword in political soap-box oratories, good justice is a much more serious term of judicial art. Good justice describes the standard of jurisprudence, how courts and tribunals have to conduct judicial procedures and how they have to apply the rules and general principles of law in order to keep any civilized system of justice running coherently under the rule of law. The preliminary ruling of the ECJ on 21November 2013 inCaseC‑284/12 (Deutsche Luft...

News from the Member States
European State Aid Law Quarterly 1/2014: pp. 4-23

Bulgaria Iveta Stoycheva and Mariya Papazova
Croatia Tatjana Jakovljević
Cyprus Michalis Kamperis
Germany Christoph Arhold
Latvia Daiga Lagzdiņa
Norway Silje Thorstensen
Spain María Muñoz de Juan
Thomas Wilson
Infrastructure Financing and State Aid Post Leipzig-Halle
European State Aid Law Quarterly 1/2014: pp. 24-27 [Opinion]
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I. Introduction In one of its last judgments of 2012, the Court of Justice (“CJEU”) ruled that public financing provided for the construction of a new runway at the State-owned Leipzig-Halle airport is subject to State aid rules.1 In its decision, the CJEU confirmed the ruling of the General Court2 in all material points. The CJEU held that operating the airport runway constituted an economic activity which was inseparable from its construction. The operation of the runway was seen ...

Filomena Chirico and Norbert Gaál
A Decade of State Aid Control in the Field of Broadband
European State Aid Law Quarterly 1/2014: pp. 28-38 [Article]
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I. Introduction Ten years have passed since 2003,when the firstmeasure in support of the roll-out of a broadband networkwere assessed under the EU State aid rules, and approved with direct application of Article 107(3)(c) of the Treaty on the Functioning of the European Union (TFEU).1 Since then, the European Commission has adoptedmore than 125 decisions in this sector (as of October 2013) and has scrutinised projects involving a total of 13 billion of subsidies across Europe. 2 The European Com...

Cristina Romariz
Revisiting Material Selectivity in EU State Aid Law – Or “The Ghost of Yet-To-Come”
European State Aid Law Quarterly 1/2014: pp. 39-50 [Article]
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Throughout the years, the State aid prohibition has been stretched to its limits to encompass almost every State measure. An overly wide interpretation of the material selectivity criterion has been playing a central role in this process and recent jurisprudence confirms how blurred the lines are. In order to foresee what narratives we can apply in the Future to balance the interests involved, we must first revisit the Past and contemplate the Present. “I will live in the Past, the Present,...

Phedon Nicolaides and Antonis Metaxas
Asymmetric Tax Measures and EU State Aid Law
European State Aid Law Quarterly 1/2014: pp. 51-60 [Article]
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The “Special Solidarity Levy” on Greek Producers of Electricity from Renewable Energy Sources

I. Introduction A tax is a burden, not an advantage. For this reason, a tax normally does not fall within the scope of Article 107(1) TFEU. The tax-related measures that constitute State aid are those that lighten the burden of taxation, such as reductions of tax rates, exemptions from tax liability or write-offs of tax debt. The purpose of this article is to showhowthe levying of a tax o...

Koert van Buiren, Matthijs Gerritsen and Janneke van der Voort
The Prohibition of Overcompensations to Services of General Economic Interest
European State Aid Law Quarterly 1/2014: pp. 61-66 [Article]
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European State aid law allows Member States to compensate selected companies that are entrusted with the operation of Services of General Economic Interest (“SGEI”). Overcompensation – compensation that exceeds what is necessary to cover all or part of the cost of the SGEI including a reasonable profit – is prohibited. The application of the prohibition to ex post overcompensation leads to altered risk for companies entrusted with the operation of SGEI and to weakened incentives for a...

Norbert Gaál and Xavier Boutin
“Modernising State Aid through Better Evaluations” – Insights From Recent Discussions with Stakeholders
European State Aid Law Quarterly 1/2014: pp. 67-70 [Article]
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I. Context and Rationale for State Aid Evaluations The EU State aid rules are primarily based on a system of ex-ante scrutiny. Aid measures are approved on the basis of pre-defined assessment criteria on the assumption that their overall balancewill be positive (and remain positive over their duration) as long as themeasures comply with these assessment criteria. What has been really achieved with public funds as well the actual impact of State aid on competition has so far received relatively l...

Andrés Martin-Ehlers
Brighter Lights at the End of the Tunnel – Continuing Private Enforcement of State Aid Law in Germany
European State Aid Law Quarterly 1/2014: pp. 71-75 [Article]
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In a decision of September 2012, the German Federal High Court ruled that a national court must not suspend a State aid proceeding if, in the same case, the European Commission issued a final negative decision against which the recipient of aid has brought a case to the European courts. Therefore, the national courts cannot simply await the outcome of the European litigation, but have to continue their proceedings. This judgment puts an end to yearlong standstill in a German court case in whi...

Alessandro Nucara
Frucona Košice
Summary ∙ Frucona Košice a.s. v Commission ∙ Case C‑73/11 P
Annotation ∙ In Search of the Holy Grail of a Hypothetical Private Creditor ∙ by Alessandro Nucara

European State Aid Law Quarterly 1/2014: pp. 78-84 [Case Law - Annotation]
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Appeal to set aside the judgment of the General Court of the European Union on 7 December 2010 in the case T-11/07, by which the General Court dismissed Frucona Košice’s action seeking annulment of Commission Decision 2007/254/EC of 7 June 2006 on State aid C 25/05 (ex NN 21/05) implemented by the Slovak Republic for Frucona Košice a.s. Court of Justice (Second Chamber), Judgment of the 24 January 2013: 1. The concept of aid embraces not only positive benefits, such as subsidies, but also me...

Jochen Eichler
Libert
Summary ∙ Eric Libert v Gouvernement Flamand ∙ Joined Cases C‑197/11 and C‑203/11
Annotation ∙ Flemish Gentrification – Protecting the less Affluent Local Population under European Law and the EJC Judgment in Libert a.o. ∙ by Jochen Eichler

European State Aid Law Quarterly 1/2014: pp. 85-95 [Case Law - Annotation]
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Request for a preliminary ruling under Article 267 TFEU from the Cour constitutionnelle (Belgium), made by decision of 6 April 2011. Judgment of the Court (First Chamber) dated 8 May 2013: 1. Treaty rules governing freedom of movement for persons and the measures adopted to implement them cannot be applied to activities which have no factor linking them with any of the situations governed by EU law and which are confined in all relevant respects within a single Member States. (§ 33) 2. Provisio...

John Milligan and Luke Sales
Ryanair
Summary ∙ Ryanair Ltd. v Commission ∙ Case C‑287/12 P
Annotation ∙ Appeal against Alitalia State Aid Decisions by Ryanair Dismissed ∙ by John Milligan and Luke Sales

European State Aid Law Quarterly 1/2014: pp. 96-105 [Case Law - Annotation]
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Appeal to set aside the judgment of the General Court of the European Union in Case T-123/09 whereby the court dismissed the action seeking the partial annulment of Commission Decision 2009/155/EC on the loan of €300 million granted by Italy to Alitalia No C 26/08 (ex NN 31/08) (OJ 2009 L 52/3) (‘the first contested decision’) and the annulment of Decision C(2008) 6745 final, on the Sale of assets of the airline Alitalia. Court of Justice (Second Chamber), Judgment of the 13 June 2013: 1. ...

Lucyne Ghazarian
Flughafen Frankfurt-Hahn

European State Aid Law Quarterly 1/2014: pp. 106-114 [Case Law - Annotation]
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Request for a preliminary ruling under Article 267 TFEU from the Oberlandesgericht Koblenz (Germany), brought to the Court by decision of 30 May 2012. Court of Justice (Second Chamber), Judgment of the 21 November 2013: 1. The need to provide an interpretation of European Union law which will be of use to the national court, makes it necessary that the national court defines the factual and legal context of the questions it is asking or, at the very least, explain the factual circumstances on wh...

Luis Moscoso del Prado and Tomás Arranz
Ellinika Nafpigeia AE
Summary ∙ Ellinika Nafpigeia AE v Commission ∙ Case C‑246/12 P
Annotation ∙ State Aid Rules and National Security: The Court Delineates the Application of Articles 346 and 348 TFEU ∙ by Luis Moscoso del Prado and Tomás Arranz

European State Aid Law Quarterly 1/2014: pp. 115-122 [Case Law - Annotation]
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Appeal to set aside the judgment of the General Court of the European Union on 15 March 2012 in the case T-391/08, by which the General Court dismissed Ellinika Nafpigeia AE’s action seeking partial annulment of Commission Decision C(2008) 3118 final of 2 July 2008 on State aid C 16/04 (ex NN 29/04, CP 71/02 et CP 133/05) implemented by the Hellenic Republic to this shipyard. General Court (Second Chamber), Judgment of the 28 February 2013: 1. Pursuant to Article 346(1)(b) TFEU, “any Member ...

Guillermo Perez Almendral and Raquel Travesí Ramón
Iberdrola
Summary ∙ Iberdrola SA v Commission ∙ Case T‑221/10
Annotation ∙ Iberdrola Tried to Fit a Square Peg into a Round Hole ∙ by Guillermo Perez Almendral and Raquel Travesí Ramón

European State Aid Law Quarterly 1/2014: pp. 123-129 [Case Law - Annotation]
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Application for annulment of Article 1(1) of the Commission Decision 2011/5/EC of 28 October 2009 on the tax amortisation of financial goodwill for foreign shareholding acquisitions C 45/07 implemented by Spain. General Court (Eighth Chamber, Extended Composition), Judgment of 8 March 2012: 1. Where the contested decision was adopted following a formal investigation procedure and was not addressed to the applicant, the applicant must show that the contested decision affects it by reason of certa...

Fernando Pastor-Merchante
Venezia Vuole Vivere
Summary ∙ Venezia Vuole Vivere ∙ Cases T-231/00, T-260/00 and T‑261/00
Annotation ∙ The Follow-up of Hotel Cipriani / Comitato “Venezia Vuole Vivere” ∙ by Fernando Pastor-Merchante

European State Aid Law Quarterly 1/2014: pp. 130-138 [Case Law - Annotation]
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Actions for the annulment of Commission Decision 2000/394/EC of 25 November 1999 on aid to firms in Venice and Chioggia by way of relief from social security contributions under Laws No. 30/1997 and 206/1995. General Court (Fourth Chamber), Orders of 12 December 2012: 1. According to Article 114(4) of the Court’s Rules of Procedure, the Commission’s application for a ruling on its objection of inadmissibility must be added to the main proceedings. It is for the General Court to assess whethe...

Phedon Nicolaides
MOL Magyar v European Commission
Summary ∙ MOL v Commission ∙ Case T‑499/10
Annotation ∙ Selectivity, Exercise of Discretion and (Non)-Objective Criteria ∙ by Phedon Nicolaides

European State Aid Law Quarterly 1/2014: pp. 139-147 [Case Law - Annotation]
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Application for annulment of Commission Decision 2011/88/EU of 9 June 2010 on State aid C 1/09 (ex NN 69/08) granted by Hungary to MOL Nyrt (OJ 2011 L 34) and, in the alternative, for annulment of that decision in so far as it orders the recovery of amounts. General Court (Second Chamber), Judgment of the 12 November 2013: 1. For ameasure to be classified as State aid, first, theremust be an intervention by the State or through State resources; second, the intervention must be liable to affect t...

Morris Schonberg
MB System
Summary ∙ MB System ∙ Case T-209/11
Annotation ∙ Sufficient Comfort? The Treatment of Comfort Letters under the Market Economy Investor Principle ∙ by Morris Schonberg

European State Aid Law Quarterly 1/2014: pp. 148-156 [Case Law - Annotation]
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Actions for the annulment of Commission Decision 2011/471/EU of 14 December 2010 on aid C 38/05 (ex NN 52/04) to the Biria Group implemented by Germany. General Court (Third Chamber), Judgment of 3 July 2013: 1. Where the Commission has a wide margin of discretion in its assessment, only “manifest errors of law” may lead to the annulment of a Decision. However, where the applicant submits that there was an “error of analysis” and the applicable case law requires this error of analysis to...

Andreas Bartosch
Notre-Dame-des-Landes
Summary ∙ Aéroport de Notre-Dame-des-Landes ∙ Cases No 347073, 347170 and 350925
Annotation ∙ A Somewhat Novel Outlook on the Altmark Conditions ∙ by Andreas Bartosch

European State Aid Law Quarterly 1/2014: pp. 157-161 [Case Law - Annotation]
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Actions for the annulment of the decree No 2010-1699 of 29 December 2010 approving a contract between the French State and Aéroport du Grand Ouest for the concession of the aerodromes of Notre- Dame-des-Landes, Nantes-Atlantique and Saint-Nazaire-Montoire. Conseil d’État (7ème et 2ème sous-sections réunies), Judgment of 13 July 2013: 1. To comply with Article 1 of the decree of 24 March 1993 on the application of Article 38 of the law No 93- 122 on the publicity of public service delegati...

Martin Köhler
Biria Group
Summary ∙ Order of the German Bundesgerichtshof (BGH) in Case Biria Group ∙ Case reference: 13.9.2012, III ZB 3/12
Annotation ∙ Respective Roles of Union Organs and National Courts in State Aid Law: Procedural Implications in National Recovery Proceedings ∙ by Martin Köhler

European State Aid Law Quarterly 1/2014: pp. 162-174 [Case Law - Annotation]
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Appeal against the order of the Regional Appeal Court of Thuringia in Jena 28. 12. 2011, 5W195/11, concerning the order of the Landgericht Mühlhausen 30. 3. 2011, 6 O 276/08 Order of the German Bundesgerichtshof (BGH), Order of 13 September 2012: 1. The appeal is well founded. The orders of the lower instances are annulled. The proceedings in a law suit concerning the recovery of aid granted in breach of the standstill obligation (Article 108(3) first and second sentence TFEU, ex-Article 88(3) ...

Thomas Müller, Thomas Jaeger
Book Reviews
European State Aid Law Quarterly 1/2014: pp. 175-178
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EU Competition and Internal Market Law in the Healthcare Sector By Leigh Hancher and Wolf Sauter Oxford University Press, 2012, ISBN 978-0-19-964217-5, 400 pp., £145.00 Europäisches Beihilfenrecht “European State Aid Law” Edited by Alexander Birnstiel, Marc Bungenberg, Helge Heinrich Baden-Baden: Nomos, 2013. 1466 pages. ISBN: 978-3-8329-5758-2, € 198,–

The book aims to provide a comprehensive overview of the increasing im...


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EStAL
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ISSN 16 19-52 72

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