The European Antitrust Review 2014 Section 1: EU substantive areas

State Aid

European State Aid: New Developments in Jurisprudence and State Aid Modernisation

In the past year, EU state aid control in many ways changed from ‘crisis mode’ to ‘normal mode’, although certain crisis measures are still in play. The Commission in particular adopted crisis-related measures or prolonged existing aids for European banks (eg, for the Austrian bank Hypo Group Alpe Adria). Despite the ongoing work related to the financial and economic crisis, the Commission focused on the State Aid Modernisation Initiative (SAM) as a series of reforms taking the procedural parts of state aid law into account. Although overdue and originally planned for 2009, the financial and economic crisis forced the Commission to freeze any plans for a comprehensive state aid law reform. In 2012, with most anti-crisis measures in place and some already expiring, the Commission put SAM on the agenda. Irrespective of those Commission reform activities, European courts have recently taken a number of important decisions in the field of state aid rules. This article outlines highlights of such jurisdiction as well as Commission decisions and activities related thereto. Moreover, it provides an overview on the current status on recent Commission activities for a modernisation of the EU state aid law.

Recent case law

The European Court of Justice and the General Court, but also national courts, adopted numerous significant rulings that, inter alia, concern the legal relevance of guidelines published by the Commission and the requirements of state aid law for the financing of infrastructure. Moreover, there were important rulings that concern guarantees and loans and the notion of state aid.

Legal relevance of guidelines: Smurfit/Expedia

In two cases, the ECJ1 and the General Court2 decided on the legal quality of guidelines and notices published by the Commission and the consequences deriving there from. In the Smurfit Kappa decision, the General Court nullified a decision of the Commission. The Commission declared an investment aid – granted to a German enterprise for building a paper mill as well as a power plant – as being compatible with state aid law without opening a formal investigation. The Commission argued to be bound by the threshold set down in paragraph 68 of the Guidelines on Regional Aid3 insofar that the Commission must not initiate a formal investigation below that threshold. The Guidelines on Regional Aid allow certain maximum aid intensity (see paragraph 67 of the Guidelines on Regional Aid). According to paragraph 68 of the Guidelines on Regional Aid further preconditions for allowing state aid in case the total amount of aid from all sources exceeds 75 per cent need to be met. The General Court stated that a measure below the threshold set in the guideline does not automatically lead to the compatibility of the measure with EU state aid law. By taking the threshold as the only prerequisite to assess a measure, the Commission did not properly exercise its discretion. In the Expedia decision, Expedia was fined by the French antitrust agency for being part of an agreement constraining competition. The French Court de Cassation submitted the case to the ECJ to decide whether a market share below the threshold set in the de minimis notification4leads to the conclusion that a substantial effect on competition is not present. The ECJ held that the Commission is not bound by its guidelines and notices in case these documents deviate from a correct interpretation of primary and secondary legislation, in this case article 101 paragraph 1 TFEU. With regard to restraints of competition, the de minimis notification does not apply if the cartel is aiming for a restraint of competition.5 Thus, as restraints of competition are prohibited by article 101 paragraph 1 TFEU, a market share below the threshold set in the de minimis notification does not relativise the distortion of competition.

The judgments show that guidelines or notifications from the Commission do not constitute a safe harbour. Although the guideline being subject to the Expedia case is an antitrust guideline, the legal assessment of the ECJ can be transferred to guidelines in the field of state aid law. According to article 288 TFEU recommendations and opinions of the Commission are non-binding. Thus, guidelines and notices do not have any legally binding value. The Commission is bound to its own – legally non-binding – guidelines as they reflect the Commission’s decision-making practice. Moreover, the European Courts take these publications by the Commission into account when deciding a case. Thus, in practice, enterprises follow the rules and preconditions set down in these documents. However, both judgments show that enterprises are not entirely safe when following the rules set in non-binding documents of the Commission. Guidelines and notifications might help enterprises to understand the way the Commission decides. Nevertheless, applying these rules will not provide full legal certainty.

Notion of state aid (enterprise) for airport infrastructure: Flughafen Halle-Leipzig

In a judgment of 19 December 2012 concerning the airport Leipzig-Halle, the ECJ agreed the General Court’s opinion that the public financing of infrastructure of regional airports has to be assessed by state aid rules.6 The state of Saxony issued a ‘comfort letter’ to a public company in order to guarantee the construction of a new runway as well as a continuous access to that runway without any financial limits. The Commission classified the warranties and the comfort letter as state aid and ordered Germany to recover the aid.7 The state of Saxony brought the case to court. According to the plaintiffs’ opinion the construction and extension of airport infrastructure has to be classified not as an economic activity, but as an activity concerning traffic and economic policy as well as regional development. The General Court held that the concept of ‘enterprise’ does apply to regional airports and thus, the construction and operation of the runway is a service and has to be regarded as an economic activity regardless of the legal status of the enterprise or its financing. Thus, any contribution constitutes state aid except for expenses linked to public duties. Any financial contributions to such public services – such as customs, air traffic control or security – do not constitute state aid. Furthermore, the ECJ rejected the plaintiffs’ argument to dissociate the construction and the operation of the new runway holding that the construction is a precondition for the operation of the new runway.

The ECJ affirmed the Commission’s broad interpretation of the notion of state aid within the meaning of article 107 paragraph 1 TFEU. An economic activity is present if an enterprise engages in economic activity – offering goods or services on a market – for commercial purposes. Thus, a huge part of public financing of infrastructure will be regarded as state aid and state aid rules need to be applied. As a consequence, the Commission will have to review and assess numerous state aid notifications concerning public infrastructure projects. In order to cope with this, the Commission announced revised guidelines for the financing of regional airports. However, until mid-June 2013, the Commission did not present a new guideline or even a draft.

Parallel assessment of the notion of state aid by Commission and national courts: Lufthansa v Frankfurt-Hahn

The German Court of Appeals Koblenz submitted on 30 May 2012 the question to the ECJ whether national courts are bound by the Commission’s perspective with regard to the existence of state aid in case there is only a decision to open investigations according to article 108 paragraph 2 TFEU.8 In case of an order to recover aid from the Commission, national courts are bound by this decision.9 The Commission has the sole right to decide on the compatibility of state aid. Only extraordinary circumstances allow the national courts to deviate from their obligation.10 In the present case, Lufthansa claimed a refund of aid from the operator of the airport Frankfurt-Hahn granted to Ryanair. Lufthansa argued that Ryanair has received aid, inter alia in form of decreased fees. In an opinion requested by the Court of Appeals, the Commission argued that the Court is bound by the Commission’s assessment set out in its preliminary opinion of 10 June 2008 to open a formal proceeding.11The position of the Commission is in line with the jurisprudence of the ECJ. In a former case, the ECJ argued that – even if the opening of a formal proceeding constitutes only a preliminary assessment – the decision to initiate a formal proceeding constitutes a legally binding decision.12 Thus, the ECJ concluded that article 108 paragraph 3 TFEU is applicable and national courts are bound by the Commission’s assessment on whether state aid is given.13

According to recent German higher and Supreme Court decisions, however, a formal proceeding by the Commission or a statement by the Commission requested by a court does not hinder a German court to decide on the existence of state aid on its own.14 The national court has – according to the principle of loyal co-operation (article 4 paragraph 3 TEU) – to appreciate the Commission’s decision to initiate formal proceedings to a sufficient degree. The nature of the preliminary assessment of the existence of state aid is not able to bind German courts until the Commission renders a decision concluding the formal proceedings. The decision to open a formal investigation does not include the finding that state aid is present.15 To open a formal proceeding, it is sufficient for the Commission to have serious doubts whether the aid is compatible with the internal market.16 The ECJ itself is of the opinion that article 108 paragraph 3 section 3 TFEU is only applicable if state aid according to article 107 paragraph 1 TFEU is present. If the decision by a court and the final decision by the Commission differ, the aid has to be refunded. This also applies if a court decides after the final decision of the Commission.17 If the court decides before the Commission concludes its investigation, a deviation from the legal effects of a binding court decision is not necessary due to the importance of the principle of legal effects in the European and national legal order.18 However, if the national legislation allows an action for retrial of a case, the member state has to use this instrument to try to recover the aid.19 With regard to state aid, it has to be taken into account that a beneficiary of a state aid can only trust in the continued compatibility of the state aid with European law if the procedural rules set in article 108 paragraph 3 TFEU have been complied with.20 National courts, however, cannot create the beneficiary’s trust that incompatible state aid will endure.21 Thus, even in the case of a contradicting court decision, the Commission is not hindered to order a member state to recover state aid.22 If there are doubts about whether state aid is present, national courts have the possibility to consult the Commission.23

Private investor test: Électricité de France (EDF)

In its ruling of 5 June 2012 concerning EDF the ECJ rules on the application of the private investor test to sovereign actions of the member states.24 The European courts distinguish between obligations of the state as shareholder and its obligations as public authority.25 France had restructured the state-owned enterprise EDF by law. Thereby it changed loan capital to equity capital. Furthermore, by law, this measure has been exempted from corporation tax. In the Commission proceedings, France used the private investor test as a justification. However, the Commission rejected the argument as this test does not apply to sovereign actions.26 The General Court annulled the Commission’s decision.27 It held that a state action does not only have to be assessed by its outward appearance, but also by its nature, subject matter and the rules applicable to the measure. Additionally, the goal of the measure has to be taken into account. Every state action connected to the state as investor is bound by the scope of the private investor test; only measures taken by the state as public authority are not subject to the private investor test. The ECJ now confirmed the General Courts’ decision: The application of the private investor test is not excluded because of the measure’s outward appearance as a fiscal measure. Article 107 paragraph 1 TFEU tries to prevent companies receiving economic advantages regardless of the kind of measures. Thus, it is irrelevant that a private investor cannot hold a tax claim.28 Article 107 paragraph 1 TFEU does not distinguish between measures of state intervention by their cause or their aims, but with regard to their effect.29 In order to assess the measure from a private investor’s perspective, the benefits and obligations linked to the fact that the state is a shareholder have to be taken into account.30 Thus, the private investor test has to be applied. It has to be assessed if a private investor would have subscribed an amount – equal to the tax due – to EDF. Exercising rights deriving from state authority are excluded from this assessment.31 It is not decisive whether a private person is able to execute the measure in question. State shareholders cannot use fiscal means to avoid the private investor test to support a state-owned enterprise financially. On the other hand, state shareholders can use the private investor test as a justification for their measures when exercising their rights as a shareholder. However, the ECJ set certain preconditions to apply the private investor test. A member state applying the private investor test has to prove that the state took the measure as shareholder of an enterprise, not as public authority. The documents proving this have to show the state’s decision to invest capital in the enterprise. The Commission has to take these documents into account as well as the nature, the subject matter and the context of the measure. By introducing these preconditions, the ECJ limits the broad scope of the application of the private investor test it just extended. The decision clarifies the scope of the private investor test to some degree. However, some questions remain undecided: If a state is not able to prove that he acted as an investor, a measure can be regarded as state aid although the measure is not substantive beneficial for the enterprise.32 Moreover, it might be possible that a state is aiming for other goals than capitalising an enterprise.33 It has yet to be clarified if the private investor test is applicable in these circumstances.

Aid in favour of ‘flag carriers’: Alitalia

In June 2013, the ECJ decided on an appeal by Ryanair against state aid supporting ‘flag carriers’.34 The ECJ upheld the General Court’s decision35 deciding that the loan to Alitalia provided by the Italian state was unlawful. The court also upheld the General Court’s decision that the sale of Alitalia’s assets did not involve state aid. Alitalia, having been in financial difficulties, went bankrupt in 2008. The Italian state provided a loan to Alitalia of €300 million and allowed Alitalia to count this loan as equity capital. At that time, the state of Italy held 49.9 per cent of Alitalia’s shares. Alitalia was placed in extraordinary administration aiming on the sale of its main assets. A bank was appointed as an independent expert in order to verify that the sale price for its assets was in accordance with the market price. Compagnia Aerea Italiana (CAI) tendered a bid in response to a public sales procedure and finally purchased certain assets of Alitalia.

The Commission initiated a formal investigation procedure and scrutinised the loan as well as the option to treat the loan as equity capital. In two decisions, the Commission declared the state aid unlawful and ordered Italy to recover the aid.36 According to the Commission, the sale to CAI did not involve state aid provided the condition that the assets were sold at market price under supervision of a monitoring trustee. This condition was fully complied with. The Commission further confirmed that the procedure implemented by Italy did not lead to economic continuity between Alitalia and the buyers of its assets. The sale did not have the effect of circumventing the obligation to recover the aid or of granting aid to the buyers of Alitalia. After lodging various complaints with the Commission, Ryanair applied to the General Court for the annulment of those two Commission decisions. Ryanair complained that the Commission did not order to recover the aid from Alitalia’s successor and granted Italy additional time to recover the state aid. Furthermore, with respect to the second contested decision, Ryanair argues that the Commission did not initiate a formal investigation procedure and thereby the Commission issued an incomplete and insufficient decision which led to a violation of the applicant’s procedural rights. However, by judgment of 28 March 2012 the General Court rejected Ryanair’s complaint.37 The court held that the Commission had convinced itself that the sale would take place at the market price. It dismissed Ryanair’s arguments that the Commission had carried out an insufficient or incomplete examination at the preliminary examination phase and should have initiated a formal investigation procedure on the sale of the assets, in order to verify the possible existence of options other than the sale of assets. In particular, the call for expressions of interest had not contained any discriminatory provision in terms of the nationality of the bidders and it had received wide publicity on a national and international scale and therefore met the requirements of openness and transparency. Finally, the Commission had correctly assumed that there was no economic continuity between Alitalia and CAI. To ensure compliance with the requirements of European state aid law for privatisations of state-owned companies – as with the privatisation of Olympic Airlines38 – the Commission had implemented an independent monitoring trustee.39

The ECJ rejected all arguments brought forward by Ryanair in its judgment delivered on 13 June 2013. It held that the General Court correctly concluded that commitments entered into by Italy are an integral part of the notified measure. Thus, the Commission was allowed to take these voluntary commitments into account during the notification of the measure. Secondly, the ECJ agreed with the General Court holding that the Commission’s examination was not incomplete as implied by Ryanair. The examination of certain advantages provided for CAI – being the purchaser of Alitalia’s assets – by Italian legislation was irrelevant when deciding on the question of advantage. Thirdly, the ECJ held that Ryanair did not argue that the decisive criterion for assessing the bids was the price while the criterion continuity of service came second. Moreover, Ryanair did not dispute the General Court’s decision that the continuity of service led automatically to the assumption of a public service obligation. However, Ryanair did not prove that the necessity to ensure the continuity of Alitalia’s air transport service led to a price for its assets below market price. Finally, the General Court was correct in deciding that CAI’s bid concerned the passenger air transport business. CAI did not tender a bid for Alitalia as a whole. The number of timetable slots covered by CAI’s bid is consistent with the number of slots needed for the passenger transport business. Additionally, CAI purchased only 90 of 180 aircraft from Alitalia. Thus, the General Court did not distort the evidence submitted, as Ryanair implied.

Also, the Commission dealt with several measures supporting flag carriers. While the Commission ordered Hungary to recover unlawful state aid from national air carrier Malév,40 it approved a €130 million restructuring aid for Air Malta granted by the state of Malta in 2011.41

EU state aid modernisation

The State Aid Modernisation Initiative (SAM) is the second general revision of state aid law. From 2005 to 2009, within the State Aid Action Plan, the Commission proposed several reforms of substantive state aid law. During this period, the EU inter alia reviewed the de minimis Regulation (2006)42 as well as the General Block Exemption Regulation (2008).43 However, the Commission’s plans to review the procedural state aid rules have been thwarted by the financial crisis: In 2008 and 2009, the Commission primarily dealt with measures to manage the crisis of the financial economy and with measures to prevent negative consequences from the financial crisis to the real economy. In 2009, the Commission published the Best Practices Code44 and a simplified procedure for the treatment of certain types of state aid45 to tackle the long duration of the state aid proceedings. Finally, in 2011 the Commission published a Communication concerning a reform of the state aid rules on Services of General Economic Interest.46

Introduction of SAM

In May 2012, the Commission initiated the state aid modernisation initiative (SAM).47 SAM is an ambitious programme set by Commissioner Almunia to revise and enhance European state aid law. The Commission in particular pursues three goals with SAM: a smarter way of using state aid; focusing on large cases; and improving state aid procedure. Firstly, state aid is one of the tools the Commission applies to reach the goals laid down in the strategy Europe 2020.48 Moreover, SAM has been initiated to make state aid more efficient and targeted as well as to promote growth within the EU.49 Besides aiming at sustainable growth, SAM is also supposed to support budgetary consolidation. Secondly, another aim of the Commission is to focus state aid investigation on large cases that are able to have a significant impact on competition within the internal market.50 On the other hand, the Commission’s scrutiny of cases with minor effects on competition of the internal market shall be simplified. In order to reach this goal, the Commission intends to support the member states in designing state aid programmes. This approach will help to allocate the necessary resources to investigate large cases in detail. In-depth investigations of industry sectors shall help the Commission to have a deeper knowledge of the market concerned and come to a well-reasoned decision. The second and third goals are connected: a focus on large cases shall support the Commission in reaching faster decisions in state aid cases. Additionally, procedural reforms are supposed to ‘streamline’ state aid proceedings.51 The Commission plans to finish its modernisation process until the end of 2013. The whole initiative includes the revision of about 10 different instruments – regulations and guidelines. These parts of SAM are within different stages of revision. By setting up SAM, the Commission entered in discussions and consultations not only with the European institutions and member states but also with stakeholders.52 The procedure to revise the different instruments includes a consultation – in some cases preceded by an issues paper. The consultation is followed by a proposal of the Commission, a consultation concerning the proposal and – if applicable – a decision by the Council of the European Union leading to the final version of the respective instrument.

In particular, the following instruments are being revised as part of SAM.

General Block Exemption Regulation

The revision of the General Block Exemption Regulation started with a consultation from June to September 2012. On 8 June 2013, the Commission published a draft General Block Exemption Regulation53and called for stakeholders’ comments until the end of June 2013. As the General Block Exemption Regulation expires on 31 December 2013, it is to be expected that the EU will present the final proposal of a General Block Exemption Regulation in the autumn and that the new Regulation will be enacted by the end of the year. The proposed changes to the General Block Exemption Regulation include an increase of notification thresholds for R&D measures (from €20 to €40 million for fundamental research, from €10 to €20 million for industrial research, from €7.5 to €10 million for experimental research) and for risk finance aid (overall investment cap of €10 million instead of annual investment tranche of €1.5 million). The proposal also introduces a new exemption for research infrastructure (up to a threshold of €15 million per infrastructure). Moreover, very large schemes – with an annual public expenditure exceeding 0.01 per cent of the national GDP and €100 million – require notification. To avoid splitting up schemes, a special clause has been introduced. Furthermore, the draft proposes a transparency obligation requiring member states to publish key information of the names of beneficiaries and the aid amounts on a single website. In order to sanction the failure to comply with state aid rules, the Commission proposes the withdrawal of the benefit of the block exemption. With regard to regional aid, the proposal includes aid for SMEs regarding initial investments while large companies receive aid only for initial investments in favour of new activities. It also promotes European Territorial Cooperation projects as well as regional aid to develop broadband networks. The rules regarding risk capital for SMEs are extended and simplified to achieve a more flexible handling. The proposal also promotes revolving aid instruments for SMEs as well as a simpler access to state aid for start-ups. State aid for research, development and innovation will have two more aid categories: aid for infrastructure and for innovation. With regard to training and employment aid, the Commission introduces a single category of training aid. Furthermore, the proposal expands the scope of a block exemption for the employment of disabled and disadvantaged workers. Finally, the proposal introduces easier rules to grant aid connected to resource energy, climate change and energy measures. Additionally, ‘efficient district heating and cooling’ is proposed as a new category of aid.

Enabling Regulation

The Commission published a proposal of the draft Enabling Regulation on 5 December 2012. On 29 May 2013, the Council of the European Union reached a political agreement on a revision of the Enabling Regulation.54 The Commission has based several block exemptions on this Regulation, eg, regional aid, SMEs, R&D, employment aid, training aid and environmental aid. The Enabling Regulation55dates back to 1998. As both the internal market and case practice have changed tremendously, a revision has been highly necessary to adapt to today’s standards. The regulation expands the categories of aid that can be excluded from prior notification with the Commission. It especially extends the scope of the regulation with regard to culture and heritage conservation; compensating damages caused by natural disasters, forestry and the promotion of certain food products; conservation of marine biological resources; innovation and amateur sports as well as certain types of aid for transport and for broadband infrastructure. By using these block exemptions, member states are able to grant aid without notification, which accelerates the process enormously as long as the preconditions of the regulations are fulfilled. As these types of aid have only a limited potential to distort competition in the internal market,56 this simplification will help the Commission to concentrate on cases with serious consequences for the internal market.57

De minimis Regulation

After the consultation in 2012, the Commission published a draft de minimis Regulation.58 The consultation process for this proposal started in March and ended in May 2013. In its draft, the Commission did not change the threshold of €200,000 within three years as being exempted form state aid notification although the Commission announced to assess the threshold. Member states, such as Germany, are favouring a higher threshold with a view to the Commission’s aim to focus their state aid analysis to large cases which are able to distort competition. Additionally, the revised rules for Services of General Economic Interest59 have a de minimis threshold of €500,000 within three years. In order to simplify the application of state aid rules, a common de minimis threshold for all kinds of state aid will be helpful.

Procedural Regulation

The Procedural Regulation60 dates back to 1999. The Commission argues that a review is necessary to target the problem of long state aid proceedings. The Commission proposed a draft Procedural Regulation on 5 December 2012.61 The Council of the EU reached a political agreement on 29 May 2013. The draft has two core areas. Firstly, the Commission wants to clarify the handling of complaints. Complaints shall be lodged in a transparent and fast procedure. Secondly, to achieve more effective investigation methods, the Commission proposed market information tools in order to obtain the relevant information for the assessment of state aid cases. Thus, the Commission wants to receive information directly from the participants of the relevant market. Furthermore, the proposal grants the Commission the right to start investigations regarding a sector or a specific type of aid.

Apart from the Regulations mentioned above, the Commission also proposed changes to several guidelines. These guidelines are: Guideline for Regional Aid, Research, Development and Innovation, Environmental Aid, Risk Capital as well as the Broadband Guideline. Except for the Broadband and Regional Aid Guidelines, consultations have taken place but the guidelines are still under review. So far there are no proposals for new guidelines. The Broadband Guideline was adopted on 18 December 2012. On 19 June 2013, the Commission adopted the Guidelines on Regional Aid for 2014-2020.62

Notes

  1. ECJ, Judgment of 13.12.2012, Expedia v Commission, C-226/11.
  2. General Court, Judgment of 10 Juy 2012, Smurfit Kappa Group v Commission, T-304/08.
  3. European Commission, Guidelines on national regional aid for 2007-2013, 2006/C 54/08, OJ C 54/08 of 4 March 2006, p.13.
  4. European Commission, Commission Notice on agreements of minor importance which do not appreciably restrict competition under article 101 paragraph 1 TFEU (de minimis), OJ C 368 of 22 December 2001, p.13-15.
  5. Opinion of Advocate General Kokott delivered on 6 September 2012 re. case C-226/11, see EUR-Lex No. 62011CC0226.
  6. ECJ, Judgment of 19 December 2012, Mitteldeutsche Flughafen AG v Commission, C-288/11 P.
  7. European Commission, Commission Decision of 23 July 2008, case No. C 48/06 (ex N 227/06), OJ L 346 of 23 December 2008.
  8. Court of Appeals of Koblenz, Decision of 30 May 2012, 9 U 759/07, EuZW 2012, 760.
  9. ECJ, Judgment of 12 February 2008, CELF, C-199/06 paragraph 39.
  10. ECJ, Judgment of 12 February 2008, CELF, C-199/06 paragraph 42.
  11. European Commission, Decision of 17 January 2009, OJ C 12/6, p.6.
  12. ECJ, Judgment of 9 October 2001, Italy v Commission, C-400/99, paragraph 9.
  13. ECJ, Judgment of 9 October 2001, Italy v Commission, C-400/99, paragraph 39.
  14. German Supreme Court, Judgment of 23 November 2011, 1 BvR 2682/11 paragraph 8; German Administrative Court, Judgment of 9 June 2011, 3 C 14/11 paragraph 12; German Federal Court in Civil Matters, Judgment of 10 February 2011, I ZR 136/09 paragraph 30; Court of Appeals Berlin-Brandenburg, Judgment of 17 October 2011, OVG 10 S 22.11 paragraph 61; see also Martin-Ehlers, EuZW 2011, 583, 588; Soltész, EuR 2012, 60, 63 f.
  15. Becker, EuZW 2012, 725.
  16. See article 4 paragraph 4 Regulation (EC) No. 659/999.
  17. ECJ, Judgment of 18 July 2007, Lucchini, C-119/05, paragraphs 50 ff.
  18. ECJ, Judgment of 22 December 2010, Frucona, C-507/08, paragraph 59.
  19. ECJ, Judgment of 22 December 2010, Frucona, C-507/08 paragraph 61.
  20. ECJ, Judgment of 11 December 2008, Commission v Freistaat Sachsen, C-334/07 P paragraph 40.
  21. ECJ, Judgment of 20 March 1997, Land Rheinland-Pfalz v Alcan Deutschland GmbH, C-24/95, paragraphs 34 ff.
  22. European Commission, Commission, Decision of 25 April 2012 – Case SA.25051 (C 19/2010), OJ L 236/1 of 1 September 2012.
  23. European Commission, Commission Notice on the cooperation between the Commission and the courts of the EU Member States in the application of articles 81 and 82 EC, OJ C 101/97 of 27 April 2004, p.54–64.
  24. ECJ, Judgment of 5 June 2012, Commission v EDF, C-124/10 P.
  25. ECJ, Judgment of 14 September 1994, Spanien v Commission, C-278/92 to C-280/92 paragraph 22; Judgment of 28 January 2003, Germany v Commission, C-334/99 paragraph 134.
  26. European Commission, Commission Decision of 16 March 2003 (C 68/2002, N 504/2003 and C 25/2003).
  27. General Court, Judgment of 15 December 2009, EDF v Commission, T-156/04.
  28. ECJ, Judgment of 5 June 2012, Commission v EDF, C-124/10 P paragraph 37.
  29. ECJ, Judgment of 9 June 2011, Comitato ‘Venezia vuole vivere’ et al v Commission, C-71/09 P paragraph 94.
  30. ECJ, Judgment of 14 September 1994, Spanien v Commission, C-278/92 to C-280/92 paragraph 22.
  31. ECJ, Judgment of 5 June 2012, Commission v EDF, C-124/10 P paragraph 79.
  32. Melcher, EuZW 2012, 576, 579.
  33. Melcher, EuZW 2012, 576, 580.
  34. ECJ, Judgment of 13 June 2013, Ryanair Ltd. v Commission, C-287/12 P.
  35. General Court, Judgment of 28.3.2012, Ryanair Ltd. v Commission, T-123/09.
  36. European Commission, Commission Decision C(2008) 6745 of 12 November 08; European Commission, Commission Decision C(2008) 6743 (No C 26/08) of 12.11.2008.
  37. General Court, Judgment of 28 March 2012, Ryanair Ltd. v Commission, T-123/09.
  38. European Commission, Commission Decisions N 321/N 322/N 323/2008 of 17 September 2008, Olympic Airline/Olympic Airways Services, OJ C/18/2010 of 23 January 2010.
  39. As regards the requirements of EU State Aid Law for the privatisations of state-owned companies see Haak/Brüggemann, The European Antitrust Review 2012, p.56 et seq.
  40. European Commission, Press Release of 9 January 2012, IP/12/7.
  41. European Commission, Commission Decision of 27 June 2012, P/12/702.
  42. Commission Regulation (EC) No 1998/2006 of 15 December 2006 on the application of articles 87 and 88 of the Treaty to de minimis aid.
  43. Council Regulation (EC) No 800/2008 of 6 August 2008 declaring certain categories of aid compatible with the common market in application of articles 87 and 88 of the Treaty (General block exemption Regulation).
  44. European Commission, Code of Best Practice for the conduct of State aid control procedures, 2009/C 136/04, OJ C 136/13 of 16 June 2009.
  45. European Commission, Memo/09/208 of 29 April 2009; see also European Commission, Evaluation in the field of State aid – issues paper, 12 April 2013, p.2.
  46. European Commission, Communication from the Commission, Reform of the EU State Aid Rules on Services of Economic Interest of 23.3.2011, COM(2011) 146 final.
  47. European Commission, Communication from the Commission to the European Parliament, the Council the European Economic and Social Committee and the Committee of the Regions: EU State Modernisation (SAM) of 8 May 2012, COM(2012) 209 final.
  48. European Commission, Communication from the Commission: Europe 2020 – A strategy for smart, sustainable and inclusive growth, COM(2010) 2020 final.
  49. European Commission, Communication from the Commission to the European Parliament, the Council the European Economic and Social Committee and the Committee of the Regions: EU State Modernisation (SAM) of 8 May 2012, COM(2012) 209 final, p.3.
  50. European Commission, Evaluation in the field of State aid – issues paper, 12 April 2013, p.2.
  51. European Commission, Communication from the Commission to the European Parliament, the Council the European Economic and Social Committee and the Committee of the Regions: EU State Modernisation (SAM) of 8 May 2012, COM(2012) 209 final, p.3.
  52. See Planck/Walch, State aid modernisation – How to make better use of taxpayers’ money, EuZW 2012, 613.
  53. See Draft General Block Exemption Regulation, available at: http://ec.europa.eu/competition/state_aid/reform/gber_final_en.pdf.
  54. See Council of the European Union, Press Release, 3242nd Council meeting, Competitiveness (Internal Market, Industry, Research and Space), 29–30 May 2013, p.15.
  55. See Council Regulation (EC) No 994/98 of 7 May 1998 on the application of articles 92 and 93 of the Treaty establishing the European Community to certain categories of horizontal State aid.
  56. See European Commission, Press Release, 5 December 2012, IP/12/1316.
  57. European Commission, Evaluation in the field of State aid – issues paper, 12 April 2013, p.2.
  58. Draft de minimis Regulation, see http://ec.europa.eu/competition/consultations/2013_de_minimis/draft_regulation_en.pdf.
  59. Council Regulation (EU) No. 360/2012 of 25 April 2012 on the application of articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid granted to undertakings providing services of general economic interests, OJ L 114/8 of 26 April 2012.
  60. Council Regulation No 659/1999 of 22 March 1999 laying down detailed rules for the application of article 93 of the EC Treaty OJ L 83/1 of 27 March 1999, p.1–9.
  61. Proposal for a Council Regulation amending Regulation (EC) No. 659/1999 laying down detailed rules for the application of article 93 of the EC Treaty of 5 December 2012, COM(2012) 725 final.
  62. European Commission, Press release of 19 June 2013, IP/13/569.

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Andreas Haak
a.haak@taylorwessing.com

Michael Brüggemann
m.brueggemann@taylorwessing.com

www.taylorwessing.com

The Taylor Wessing competition, EU and trade practice regularly advises clients on all areas of European and national antitrust, state aid and procurement law as well as on foreign trade law (antidumping/WTO).

The practice in particular covers all aspects of merger control, cartel investigations, antitrust litigation, horizontal and vertical agreements including cooperations, alliances and joint ventures. In addition, the practice has great experience regarding the advice on leniency applications, strategies with respect to the minimisation of fines and the implementation of compliance programmes. Our lawyers have a thorough understanding of the complex problems associated with state aid law and know how to navigate the various federal, regional and European state aid provisions. We also provide advice on all aspects of general EU (fundamental freedoms), public procurement and foreign trade (antidumping/WTO) law.

Our work includes a wide range of cases before the European Commission and national competition / state aid authorities of the member states as well as a number of significant cases before the European Court of Justice and national courts.

The partner-driven approach of the practice ensures consistent, practical and efficient advice with long-standing experience and great familiarity with various business and industry sectors. This especially applies to the sectors of information and communication, life science and healthcare, infrastructure and mobility as well as energy and utilisation. As a result, the Taylor Wessing competition, EU & trade practice is consistently recommended in the leading independent guides to law firms.

At present, the core practice consists of 25 highly-qualified and experienced lawyers including 11 partners based in Brussels, Düsseldorf, Hamburg, London, Paris and Beijing.

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