EStAL 3/2014


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Issue 3/2014

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Wolfgang Andreae
Publisher's Note
European State Aid Law Quarterly 3/2014: pp. 385-385
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Twelve is not only the number of works which Hercules had to achieve, it is also the symbol of plenitude and harmony. It is my delight as a publisher to see that our twelve-years-old EStAL, the European State Aid Law Quarterly, should have grown to reach such plenitude after years of rewarding labour. When the journal was first launched, the idea was to provide the State aid law community with an academic forum. It meant taking a risk: was the market sufficient enough, would the journal live up ...

Thomas Jaeger
State Aid and Transparency: A Natural Contradiction?
European State Aid Law Quarterly 3/2014: pp. 386-389 [Editorial]
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A famous German proverb states: Über Geld sprichtman nicht,man hat es. (One does not speak of money, one has money.) Indeed, a quick look at popular lyrics confirms that money is apparently only sung about by those who don’t have it. At first glance, the State aid regime seems to work the same way: State aid is “all ’bout the money”, “money, money, money” from public sources that make the recipient’s “world go round”. Those who have it, public authorities and recipient hopeful...

News from the Member States
European State Aid Law Quarterly 3/2014: pp. 390-403
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Croatia ∙ Tatjana Jakovljević

Hungary ∙ Anikó Keller

Poland ∙ Przemyslaw Kamil Rosiak and Katarzyna Bożekowska-Zawisza

Portugal ∙ Sofia Oliveira Pais

Romania ∙ Anca Jurcovan

Spain ∙ Jose Manuel Panero Rivas

...

Jan Philipp Otter and Georg Glavanovits
Regional Aid Guidelines 2014-2020
European State Aid Law Quarterly 3/2014: pp. 404-408
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Implications for Large Enterprises

Regional aid to large enterprises (LEs) and large investment projects (LIPs) have long been a thorn in the Commission’s side. With the Guidelines on regional State aid for 2007-2013 (RAG 2007) the Commission had already set (itself) the scene for the restrictive decision practice it has been following regarding such aid. The RAG 2014-2020 (RAG 2014)1 move further down this road and severely limit the eligibility of investments by L...

Phedon Nicolaides
Are National Courts Becoming an Extension of the Commission?
European State Aid Law Quarterly 3/2014: pp. 409-413
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C-284/12, Deutsche Lufthansa v Flughafen Frankfurt-Hahn

I. Introduction Article 108(3) TFEU requires Member States to notify all new aid to the European Commission for authorisation. As long as the Commission carries out its assessment of the measure, Member States may not implement the aid. This obligation, of course, applies only to public measures that contain State aid. It follows that if a measure does not contain State aid, Member States are not require...

Tobias Traupel
Football and State Aid: Really the Greatest Pastime in the World?
European State Aid Law Quarterly 3/2014: pp. 414-425
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State Aid Scrutiny beyond the Limits of Reason?

Driven by European case-law and Commission practice, State Aid law in recent years has captured more and more topics, going far beyond the original aim of preventing business activities from distortion of competition, among which professional Football. Due to the increasing commercialization of this sport, State aid control has focused with particular intensity on this sector. Often, the peculiarities of the relevant mar...

François-Charles Laprévote
A Missed Opportunity? State aid Modernization and Effective Third Parties Rights in State aid Proceedings
European State Aid Law Quarterly 3/2014: pp. 426-439
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State aid procedure – in particular the limited participation of third parties in Commission investigations – has been the subject of intense scrutiny and controversy in the last decade. Despite the progressive emergence of principles in the European Courts case law and the adoption of the Procedural Regulation in 1999, the procedural regime is still not perceived as fulfilling the objectives of transparency and efficiency. While the new Procedural Regulation adopted in July 2013 may enha...

John Temple Lang
EU State Aid Rules – The Need for Substantive Reform
European State Aid Law Quarterly 3/2014: pp. 440-453
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Substantive State aid law has a number of weaknesses. One is that a State suffers no sanction when it pays an illegal aid, because competitors find it hard to claimcompensation. There are questions about how much of an illegal aid should be repaid, and about when tax measures can be aid. If a measure is selective, it is automatically assumed that competition is distorted. The Commission should act only against significant distortions of competition, and should prohibit them, rather than tryin...

Jakub Kociubiński
Fleet Reduction in Rescue and Restructuring Aid to Airlines: A Critical View
European State Aid Law Quarterly 3/2014: pp. 454-462
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Despite the liberalization of the air transport sector, State aid to ailing airlines remains an ever-present part of the industry. In order to somehow mitigate the distortion of competition caused by such aid, certain compensations are required which predominately take the form of fleet reduction and subsequent capacity reduction. This paper provides a critical analysis of these measures from the standpoint of the principles of Social Market Economy upon which the European economic model is b...

Vincent Gruis and Marja Elsinga
Tensions Between Social Housing and EU Market Regulations
European State Aid Law Quarterly 3/2014: pp. 463-469
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EU regulations have led to jurisprudence regarding the provision of social housing in several Member States. A number of authors have stressed that this has led to tensions between (national) housing policies and EU regulations. However, the analysis of the available cases in this contribution points out that these tensions must not be exaggerated.

I. Introduction Although the European Union recognises the concern of governments for adequate housing, there is no explicit EU policy on ...

Haukur Logi Karlsson
Twenty Years of Icelandic State Aid Enforcement
European State Aid Law Quarterly 3/2014: pp. 470-490
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Economic Liberalisation that ended in the Acquisition of an Entire Economy by the State

At the occasion of the twentieth anniversary of the enactment of the EEA Agreement, this article reviews the State aid enforcement against Iceland established by its legal regime. The main State aid enforcement events are closely linked with the main events of the political and economic history of Iceland during the same period. In a narrative style, the article tells a tale of an ...

Georgios Matsos
Systematic Misconceptions of State Aid Law in the Area of Taxation
European State Aid Law Quarterly 3/2014: pp. 491-504
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Principles for a Conceptual Reform

Fiscal aid is defined on the basis of a unique ideal type of prohibited State aid. However, this ideal type was originally developed with view to forbid typical subsidies only. Case law shows that the current conceptual approach leads much too often to unsatisfactory results. Taxation rules should be examined for State aid purposes under the light of their different nature and of their own constitutional and systematical framework. A...

Thomas Waldbauer
Commission Decisions on Hypo Group Alpe Adria in the Light of Burden-Sharing
European State Aid Law Quarterly 3/2014: pp. 505-513
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Since May 2009 the European Commission has assessed several State aidmeasures in favour of Hypo Group Alpe Adria, a banking group, which has extraordinarily attracted media attention in Austria and Germany at least since the emergency nationalisation of the bank in December 2009. Finally, State aid was authorised by Commission Decision of 3 September 2013. This case note aims to give an overview of this State aid case and its complex surrounding circumstances. Moreover, this case note critica...

Edoardo Traversa
P Oy
Summary ∙ P Oy ∙ Case C-6/12
Annotation ∙ State Aid and Taxation: Can an Anti-avoidance Provision be Selective? ∙ by Edoardo Traversa

European State Aid Law Quarterly 3/2014: pp. 516-525 [Case Law - Annotation]
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Annotation on the Judgment of the Court of Justice of 18 July 2013 in Case C-6/12, P Oy

It is established case law that the prohibition of State aid does not only apply to aid in the form of direct subsidies, but also covers more indirect forms of aid, such as relief from fiscal and para-fiscal levies.1 However, four decades after the famous Italian textile case,2 uncertainties remain as to the criteria to be used to determinewhether an apparently fav...

Anne Vallery and Hannelore Wiame
Buczek
Summary: Buczek
Annotation ∙ The Private Creditor Test: Anything New under the Sun? ∙ by Anne Vallery and Hannelore Wiame

European State Aid Law Quarterly 3/2014: pp. 528-537 [Case Law - Annotation]
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Annotation on the Judgment of the Court of Justice of 21 March 2013 in case C-405/11 P – Buczek Automotive sp. z o.o.

In a judgment of 21 March 2013, the Court of Justice held that refraining from petitioning for the bankruptcy of a company in financial difficulties could only amount to State aid in case a hypothetical private creditor in the same market circumstances would have decided to petition for bankruptcy (‘Hypothetical Private Creditor test’). It is up ...

Flavia Tomat
Doux Élevage
Summary ∙ Doux-Élevage SNC v Ministère de l’Agriculture ∙ Case C-677/11
Annotation ∙ State Resources and Imputability to the State: A Clarification on the Scope of the Pearle Judgment? ∙ by Flavia Tomat

European State Aid Law Quarterly 3/2014: pp. 540-547 [Case Law - Annotation]
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Annotation on the Judgment of the Court of Justice of 30 May 2013 in case C-677/11, Doux Élevage SNC, Coopérative agricole UKL-ARREE

I. Introduction The Doux Élevage case concerns a reference for a preliminary ruling by the French Conseil d’État in proceedings lodged by two enterprises, which were required to pay inter-trade contributions. Such contributions, established by an agricultural inter-trade organisation, were initially voluntary and had become compuls...

María Muñoz de Juan
France Télécom
Summary ∙ Bouygues, S.A. (France Télécom) ∙ Joined Cases C-399/10 P and C-401/10 P
Annotation ∙ A New Turn in the France Télécom Case: A new twist to the Concept of State aid? ∙ by María Muñoz de Juan

European State Aid Law Quarterly 3/2014: pp. 550-556 [Case Law - Annotation]
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Annotation on the Judgment of the Court of Justice of 19 March 2013 in Joined cases C-399/10P and C-401/10P, Bouygues (France Télécom)

By a judgment dated 19 March 2013, the Court of Justice (also referred to as “the Court”) set aside the previous judgment of the General Court in case Bouygues Télécom v Commission, which had annulled a Commission decision defining as State aid the French State’s support declarations and the shareholder loan in favour of Fran...

Stéphanie Strievi
SNCM
Summary ∙ Corsica Ferries v Commission ∙ Case T-565/08br /> Annotation ∙ Aid Granted to SNCM: How the European Commission Misapplied the Market Economy Investor Principle ∙ by Stéphanie Strievi
European State Aid Law Quarterly 3/2014: pp. 559-564 [Case Law - Annotation]
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Annotation on the Judgment of the General Court of 11 September 2012 in Case T-565/08 – Corsica Ferries France v Commission (SNCM)

The General Court’s SNCMjudgment raises several interesting points concerning services of general economic interest (‘SGEI’), social aid, and the scope and application of the market economy investor principle (‘MEIP’). Several of these points are discussed further in Advocate GeneralWathelet’s recent opinion in Case C-533 & 5...

Fabio Filpo
Poste Italiane v Commission
Summary ∙ Poste Italiane S.p.A. v European Commission ∙ Case T-525/08
Annotation ∙ “Heads I Win, Tails you Lose”: State Loss and Recipient Gain in the Private Borrower Test ∙ by Fabio Filpo

European State Aid Law Quarterly 3/2014: pp. 568-571 [Case Law - Annotation]
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Annotation on the Judgment of the General Court (Sixth Chamber) of 13 September 2013 in Case T-525/08 Poste Italiane SpA v European Commission

I. Introduction On 13 September 2013, theGeneralCourt (the “Court”) handed down its judgment in Case T-525/08, Poste ItalianeSpAvCommission(the “Judgment”)1, concerning an application brought by Poste Italiane SpA. (“Poste”) for the annulment of the European Commission (the “Commission”) decision of 16 July 2008...

Svend Heise
Aiscat
Summary ∙ Aiscat v Commission ∙ Case T-182/10
Annotation ∙ Admissibility of Third Parties’ Legal Actions in State Aid Cases – One Step Forward, Two Steps Back ∙ by Svend Heise

European State Aid Law Quarterly 3/2014: pp. 574-581 [Case Law - Annotation]
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Annotation on the Judgment of the General Court of 15 January 2013 in Case T-182/10 Aiscat v Commission

Procedural issues have always been a heavy burden and a major barrier for third parties appealing against Commission decisions in State aid cases. Numerous judgments of the European courts have brought new momentum to these issues in the past few years. However, what remains is a very complex and to some extent incoherent framework requiring precision work and great...

Adrien Giraud
TF1
Summary ∙ TF1 ∙ Case T-275/11
Annotation ∙ TF1 v Commission: The Last Episode? ∙ by Adrien Giraud

European State Aid Law Quarterly 3/2014: pp. 584-587 [Case Law - Annotation]
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Annotation on the Judgment of the General Court of 16 October 2013 in Case T-275/11 – TF1 v Commission

The reform of the financing regime of the French public broadcaster sparked a judicial feud that required no less than three Commission decisions and four Court rulings. With the latest ruling handed down by the General Court on 16 October 2013, the battle is over (at least for now).

I. The Background of the Case France Télévisions (FTV), the French State...

Andreas Haak and Athina Thamm
Deutsche Post
Summary ∙ TF1 ∙ Case T-275/11
Annotation ∙ TF1 v Commission: The Last Episode? ∙ by Adrien Giraud

European State Aid Law Quarterly 3/2014: pp. 591-597 [Case Law - Annotation]
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Annotation on the Judgment of the General Court (Second Chamber) of 12 November 2013 in Case T-570/08 RENV – Deutsche Post AG v Commission

In the long-lasting dispute on State aid for Deutsche Post AG, the General Court judged in November 2013 on the annulment of an information injunction issued by the European Commission in the course of its State aid investigation. The Commission had requested extensive information from Germany going beyond the actual time period ...

Andreas von Bonin and Anselm Rodenhausen
BT and BTPS
Summary ∙ British Telecom v Commission ∙ Joint Cases T-226/09 and T-230/09
Annotation ∙ Privatisations, Pensions and Exemptions ∙ by Andreas von Bonin and Anselm Rodenhausen

European State Aid Law Quarterly 3/2014: pp. 598-605 [Case Law - Annotation]
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Annotation on the Judgment of the General Court of 16 September 2013 in Joined Cases T-226/09 and T-230/09, British Telecommunications plc and BT Pension Scheme Trustees Ltd v European Commission (“BT and BTPS”)

In its recent judgment in the joined cases of BT and BTPS Trustees, the General Court of the European Union (“the GC”) further refined its case law on how compensation for so-called ‘legacy costs’ is assessed under State aid law. Legacy costs refer...

Dr. Carsten Jennert, Sara Gobbato, Prof. Dr. Andrea Wechsler
Book Reviews
European State Aid Law Quarterly 3/2014: pp. 606-610 [Book Reviews]
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Beihilfenkontrolle im Europäischen Mehrebenensystem – Navigationshilfe für Länder und Kommunen State aid control in the European Multi-level System – A guide for States and Communes by Harns Arno Petzold Lexxion Verlag, Berlin, 2013, 144 pp., ISBN: 978-3-86965-238-2, € 29,95

State Aid for Newspapers – Theories, Cases, Actions By Paul Murschetz (Ed.) First Edition, Springer, xii+402 pp. inc. Index, Hard cover: ISBN: 978- 3-642-35690-2, € 1...


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