The applicability of the private investor test (PIT) to tax measures has been a hotly debated issue especially since the GC’s 2009 ruling in EDF. In EDF, the GC had accepted that at least some types of tax advantages (there: tax breaks for a publicly owned undertaking) might be checked against a return on investment logic. That finding had, also in this journal, been greeted with enthusiasm by a considerable part of the State aid community and especially among practitioners. Some others, the m...

The author submits two considerations that may be relevant for State aid recovery. First, aid, regardless of its form, can be modelled as a cash subsidy and hence the anticompetitive advantage is where the money is. Second, State aid law may draw a lesson from the doctrine of economic unity. Based on these notions, the author argues that in case of aid granted to a fully-owned subsidiary, the beneficiary is the entire group and hence, aid may be recovered from the parent company. Similarly, if s...

The Article gives an overview of the Commission’s policy concerning State aid to public service broadcasting, as outlined in the 2009 Broadcasting Communication, the changes it brought in relation to the 2001 Broadcasting Communication, and its differences with the 2005 package on the Commission’s general policy on support for services of general economic interest (SGEI). In this context it argues that public service broadcasting has special features which justify a different treatment from ...

I. Introduction In EStAL 2/2011 Sylvie Nérisson commented on the Commission’s “Carte Musique Jeune” decision1 and concluded that “State aid should help new business models to develop, not old ones to survive”.2 The audiovisual sector is facing a similar technological revolution and changing consumer behaviour, to that which has affected the music sector for more then a decade. In 2001, the Commission had adopted a Communication on certain legal aspects relating to cinematographic and ...

The purpose of this article is to examine the European Commission’s practice with respect to the enforcement of the EU State aid rules and explore its effects for Member States’ press support policies. What is the approach followed by the European Commission when domestic aid schemes seek to sustain the press and promote pluralism in information? How is the European Commission confronted with Member States’ efforts to foster democratic debate through the press and what are the implications...

I. Introduction Aid to companies entrusted with public service obligations (PSO) has become an issue of controversy for many years. The Altmark ruling, however, has provided guidance in a case that involved aid granted to companies required by law to provide public transport services. This ruling laid down four cumulative criteria in order for compensation for PSO not to constitute State aid and thus be exempt from the notification requirement of Article 108(3) TFEU.1 These criteria apply in ord...

I. Introduction The ownership, organization and administration of ports vary considerably, not only among Member States but also within them. Although many ports continue to operate under state control, in recent years a distinct trend has developed towards greater private participation in financing of ports in relation to the past. The result is that the funding of many port facilities and infrastructure is increasingly in the realm of the private sector, while public authorities tend to restri...

I. Introduction In the wake of the Lehman Brothers collapse and the subsequent financial crisis in October 2008, government interventions to rescue European banks have reached an unprecedented scale and put the European Union’s State aid control rules – as well as its Members States’ public finances – under considerable strain. Although each troubled financial institution faced specific issues, the causes and components of the financial crisis were systemic and well identified. They incl...

I. Introduction The European Union currently accounts for approximately 288 million tonnes of coal equivalent (Mtce) of coal production. The coal (lignite and hard coal) is used for electricity generation, heat generation, steel production and other industrial processes.1 One of the largest coal producers within the EU is Germany.2 As of 2010, the coal sector employed roughly 100.000 people in Europe,3 in Germany approximately 26.000 worked in the coal mining and coal processing industry.4 The c...

Case C-138/09 gives a short insight to the interpretation rules exercised by the ECJ applicable to two Commission decisions relating to State aid and its validity and issues of burden of proof in relation of State aid. The Case adds further clarification to the already existing case law what the ECJ considers to be new aid within the meaning of Article 1(c) of Regulation No 659/1999. Finally, the Case gives a very thorough insight on issues relating to interest on late payments of subsidies unde...

ACEA, active in the electricity and water sectors, received unlawful and incompatible aid from the Italian State. The aid, granted under a scheme, was to be recovered. New individual aid, intended to also benefit ACEA and to support an energy saving project, was found compatible with the internal market. However, the European Commission opened a formal investigation procedure, based on the principle laid down by the Deggendorf case law, allowing it to make compatibility of the new aid conditiona...

I. Introduction On 28 July 2011, the Court of Justice (“ECJ”) rejected Mediaset’s appeal against the General Court’s (“GC”) judgment of 15 June 20101, in which the GC held that a subsidy paid by the Italian state to pay-TV subscribers for the purchase of digital terrestrial decoders constitutes State aid, which is inconsistent with European State aid law.2 As the subsidy was limited to terrestrial decoders, and did not include satellite decoders, it was considered to favour terrestri...

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I. Introduction The General Court (GC) delivered its judgment in this case on 12 May 2011. In doing so it upheld the right of the Commission to rectify a decision which would otherwise have been illegal during the proceedings which had been brought up for annulment. The applicants, Nord–Pas–de-Calais Regional authority (NPDC) and Communauté d’agglomération du Douaisis (CAD) the French regional bodies which had granted the aid, challenged the Commission’s original decision, which declar...

I. Introduction In its judgment in Buczek Automotive v Commission1 (“the Judgment”), the General Court (“the Court”) ruled on an appeal lodged by the Polish undertaking Buczek Automotive sp. z o.o. (“BA”) against a negative Commission decision ordering recovery. The Judgment provides guidelines on two important topics in EU State aid law practice, namely, the locus standi of aid beneficiaries to challenge negative Commission decisions ordering recovery before the Court and the applic...

I. Introduction Ryanair is no stranger to the European Commission and the EU Courts, and has been involved in numerous State aid cases, both as aid beneficiary and as complainant. The possibility for “interested parties” to make complaints to the Commission about contraventions of State aid is an important tool for private companies to safeguard fair competition in the market place. However, as this case1 illustrates, the formal requirements for making a complaint should not be taken lightly...