Key Developments in State Aid Law in 2017

Key Developments in State Aid Law in 2017 Key Points The European Commission enforcement policy regarding national tax rulings and restructuring aid measures triggered particular media attention due to the financial magnitude of the measures involved. The Court of Justice has rendered several judgments that contain useful clarifications on the notion of aid (i.e. concept of economic activity, concept of State intervention and State resources, distinction between new and existing aid), selectivity, the notion of service of general economic interest as well as on procedural aspects of State aid investigations. The European Commission nearly finalised its State aid modernisation programme through the implementation of an exemption for ports and airports. As part of Brexit discussions, the implications of Brexit on State aid control have attracted significant debate. I. Introduction This survey covers the main developments in European State aid law over the last 12 months. While the list of presented cases is selective, the survey aims at providing an overview on both the Commission’s policy and cases as well as on the decisions delivered by the Court of Justice of the European Union. The first part of this survey focuses on the new legislation prepared by the European Commission in 2017 as part of its State aid modernisation programme, namely, the implementing of an exemption of notification requirements for certain support measures in favour of ports and airports. The second part of this survey focuses on the European Commission’s decisional practice. This section concentrates on tax cases which remained a strong focus of the European Commission’s enforcement policy, as well as rescue and restructuring cases. The third part of this survey discusses a selection of judgments rendered by the Court of Justice of the European Union. Some of the judgments rendered in 2017 contain useful clarifications on the notion of aid (i.e. concept of economic activity, concept of State intervention and State resources, distinction between new and existing aid), selectivity, the notion of service of general economic interest as well as on procedural aspects of State aid investigations. Lastly, on 29 March 2017 the United Kingdom has submitted a notice pursuant to Article 50 TEU regarding its intention to leave the European Union. While the modalities of the UK’s exit and its future relationship with the EU have yet to be agreed, the last part of this survey focuses on the possible impact of Brexit on the State aid policy to be implemented by the United Kingdom post-Brexit. This section describes the possible scenarios that may be envisaged at this stage, including the possibility for the UK to remain a member of the EEA, the withdrawal of such membership and its interplay with WTO rules and, finally, the possibility to implement a domestic State aid control. II. State aid modernisation The State aid modernisation process that was initiated on 8 May 2012 is nearing its conclusion with some residual developments such as the extension of the scope of the General Block Exemption (‘GBER’). The changes reflect the overarching goal of the Commission’s State aid policy to be ‘big on big, and small on small’. On 17 May 2017, after two rounds of consultation launched in 2016, the Commission approved the proposed extended scope of the GBER to ports and airports through Commission Regulation (EU) 2017/1084.1 In the airport sector, public investments for the infrastructure of regional airports (with less than 3 million passengers per year) may be made without prior notification. Up to 75% of infrastructure costs for airports with less than 1 million passengers per year and up to 50% of infrastructure costs for airports with less than 3 million passengers per year are exempted from notification. For maritime ports, public investments of up to €150 million in sea ports2 and of up to €50 million in inland ports3 may be made without prior notification. For these two categories, eligible costs are defined as investments for the construction, replacement or upgrade of port infrastructures, access infrastructure and dredging. In the case of sea ports, up to 100% of the eligible costs where such costs are up to €20 million are exempted from notification and up to 80% of the eligible costs where such costs are above €20 million are exempted from notification. Similarly, no notification is required for up to 60% of the eligible costs where such costs are above €50 million. In the case of inland ports, up to 100% of the eligible costs are exempted from notification where the total envelope is up to €50 million. III. Selected aspects of the Commission’s decisional practice and State aid policy A. Tax As part of its continued focus on tax measures, the European Commission adopted a series of final and procedural decisions in 2017, a selection of which is reported below. Firstly, in July 2017, the Commission adopted two negative decisions requiring Belgium4 and France5 to abolish the corporate tax exemptions granted to their ports. The Commission considered that the corporate tax exemptions granted to Belgian and French ports provide them with a selective advantage. More specifically, in relation to the French scheme, the Commission recalled that the commercial management and the construction of infrastructures are economic in nature, referring to established case law in relation to airports6 and ports.7 The Commission stressed the irrelevance of a series of factors, such as the classification of ports as installations of critical importance at national level,8 or the fact that these ports do not operate on a purely commercial basis. It stated that these elements are insufficient to consider that ports do not constitute economic activities, noting in particular that certain ports realise profits and pay dividends to the State.9 Further, in relation to the existence of an economic advantage, the Commission noted that no correlation could be made between the exemption and potential surcharges generated by the services of general interest that might be fulfilled by ports.10 Further, the Commission declared the measures selective by reference to the relevant taxation system, in the absence of any justification. Regarding the distortive effect of the measures, the Commission noted that while some port operators benefit from a legal monopoly in the offering port services within the port they exploit, such services are at least to a certain extent in competition with those offered in other ports of France and other Member States.11 In both decisions, the Commission classified the measures, which were implemented already in a pre-EU period, as existing aid and thus did not request the recovery of the aid for the past. Rather, it required both Member States to adopt the necessary measures to end these exemptions as of the fiscal year 2018.12 Interestingly, the Commission did not mention explicitly on which ground the measures are to be declared as new aid for the future. These decisions are relevant when looked at in the light of the exemptions put in place in 2017 in relation to ports and airports. The Commission sends a clear message that support to large infrastructure projects in this field will continue to be under the scrutiny of the Commission, unless such measures fulfil the conditions of the newly implemented exemption. Secondly, on 4 October 2017, the Commission adopted a decision in which it declared that the tax benefits granted by the State of Luxembourg constituted illegal aid.13 The Commission concluded that the Luxembourg tax ruling included an unjustified method to calculate taxable profits in Luxembourg and more specifically that the level of the royalty payment from the operating company to its holding company was inflated and did not reflect economic reality.14 On the same day,15 the Commission referred the State of Ireland to the ECJ for failing to recover aid declared illegal in a 2016 decision.16 Finally, in late October 2017, the Commission opened an in-depth investigation into a UK tax scheme for multinational companies.17 The Commission is investigating an exemption implemented in 2013 to the UK’s Controlled Foreign Company rules regarding interest payments received from loans by multinational companies (the ‘Group Financing Exemption’). The UK Group Financing Exemption is suspected to enable multinational companies active in the UK to provide financing to foreign group companies via offshore subsidiaries without paying tax on the profits generated from these transactions. This case will likely raise questions about the enforcement of any potential Commission decision following the exit of the UK from the European Union (see Section V below). B. Restructuring Rescue and restructuring aid has been often referred to as the most distortive type of aid due its interventionist nature, mainly because in the absence of such aid the undertaking in question would have exited the market. Therefore, the main principle governing restructuring aid is the ‘one time last time’ principle, pursuant to which restructuring aid can be granted only once over a period of 10 years. In recent years, the Commission has been very cautious in approving rescue and restructuring aid. This is true in particular for financial institutions, for which rescue measures are subject to approval of the restructuring plan, according to the 2013 Banking Communication.18 A major rescue aid case in 2017 was the approval of rescue aid to Air Berlin. The notified measure consisted of a loan of a maximum of €150 million provided by a German public credit institution, backed by a guarantee by the German State.19 The objective of the loan was to enable Air Berlin to continue to operate during the holiday season (maximum of 3 months) to minimise air transport disruptions and achieve the sale of its assets in an orderly manner. According to the German authorities, such measures would benefit both passengers and staff. Given the strict conditions attached to the loan such as its limited duration and the cease of operations at the end of the set timeframe, the Commission approved that measure.20 An interesting aspect of the notified measure is that the loan would be paid out in instalments, each of which will be subject to Air Berlin demonstrating liquidity shortfall on a weekly basis together with proving that it has no other free liquidity at its disposal exceeding €1 million and that all other liquidity sources have been exhausted.21 Further, the German authorities committed that the loan will either be fully repaid within a period of up to 6 months or a liquidation plan will be put in place.22 On the restructuring side the European Commission approved the restructuring plan notified by the French Authorities for the restructuring of Areva, a group controlled by the French State23 which is active in the nuclear industry. Areva faced financial difficulties over the last 5 years which were partly due to internal business and structural problems and partly due to the overall market situation post-Fukushima. According to the Commission’s guidelines on rescue and restructuring aid,24 the notified restructuring plan should demonstrate how long-term viability will be achieved in a realistic and credible way. The restructuring plan presented by the French Authorities encompassed various divestments and internal financial restructuring measures to restore Areva’s competitiveness. An important factor that led to the Commission’s approval of the aid was that a significant part of the restructuring costs would be financed through Areva’s own contribution.25 The main divestment measure concerned the Group’s nuclear reactor business segment, a plan that would in turn enable Areva to focus on the more profitable business of nuclear fuel cycle, namely the production of electricity from uranium in nuclear power reactors. Areva’s reactor business would be transferred to the French energy incumbent EDF. The payment of the aid is conditional upon the French Nuclear Safety Agency’s positive assessment of the Flamanville III project and clearance of the transaction with EDF pursuant to the EU Merger Regulation.26 A Finnish nuclear power company has recently brought before the General Court an action against the State aid decision.27 In June 2017, the Commission completed its investigation on the measures in favour of TRAINOSE and OSE, fully-state owned companies active in the provision and infrastructure management of passenger and freight services in Greece. With its decision28 the Commission approved the notified measures as compatible aid under Article 107(3)(b) TFEU. That decision is linked to the Greek privatisation programme pursuant to the Economic Adjustment Programme’s Memorandum of Understanding on financial assistance to the Hellenic Republic.29 The notified measures consist of a debt cancellation, the provision of annual grants for losses stemming from activities related to rail infrastructure and the transfer of OSE employees to other public sector employers.30 The Commission first assessed whether the measures qualified as State aid, and more specifically regarding the existence of a distortion of competition and effect on trade. The Commission concluded that due to OSE’s legal monopoly status in the management of rail infrastructure there is no competition on the market for the provision of rail network management in Greece and that those services are also not in competition with other services.31 Subsequently, the Commission went on to examine whether the envisaged support measures would have any spill-over effects on other related rail infrastructure markets. In this regard the Commission found that as of 22 October 2014 OSE’s entire non-rail infrastructure related activities were officially transferred to separate legal entities, while the separation of non-rail infrastructure management activities was completed in 2013.32 Hence, any public funding granted to OSE after that timeframe as part of any of the three notified measures does not constitute State aid within the meaning of 107 (1) TFEU. For the parts of the measures implemented prior that timeframe the Commission found that they were in line with the State aid rules. In particular, the debt cancellation measure and part of the grants aiming to offset losses do not qualify as State aid insofar as they have been implemented after 22 October 2014. Equally, the Commission concluded that the transfer of infrastructure employees did not create any spill-over effects liable to distort competition following the separation of non-rail infrastructure management activities from OSE in 2013, and thus State aid could be excluded.33 For grants payments implemented by Greece between 2011 and 22 October 2014 as well as for the transfer of maintenance employees between 2011 and 2013, the Commission confirmed that they did constitute State aid, but ultimately declared their compatibility with the internal market.34 IV. European Court cases This section discusses a selection of the key judgments rendered by the Court of Justice of the European Union over 2017. The judgments cover the following aspects: the concept of undertaking and economic activity; the concept of State intervention and State resources; the distinction between new and existing aid, the notion of selectivity and advantage, the notion of service of general economic interest, and State aid procedure. A. Concept of undertaking and economic activity 1. Case C-74/16—Congregación de Escuelas Pías Provincia Betania In a judgment of Grand Chamber dated 27 June 2017, the ECJ answered a request for a preliminary ruling in the context of proceedings between the Congregacion de Escuelas Pias Provincia Betania (‘Congregacion’) and the Municipality of Getafe concerning the latter’s refusal of the Congregacion’s application for a refund of the amount it had paid in respect of the tax on construction, installation and works (‘ICIO’).35 The ICIO is an urban property tax that was put in place in 1988 regarding the building, installation, or construction works for which a permit is required. By an order of 5 June 2001, the Spanish Ministry of Finance granted the Catholic Church full exemption from ICIO in relation to buildings belonging to the Church. The referring Court decided to stay the proceedings and refer to the ECJ the question as to whether the fact that the exemption at issue relating to works on buildings intended to be used for economic activities that do not have a strictly religious purpose constitutes illegal State aid. The present case contains an interesting examination of the boundaries of the notion of economic activity and further refines the regime applicable to infrastructures of mixed-usage. Regarding the concepts of ‘undertaking’ and ‘economic activity’, the ECJ recalls that they cover any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed. The fact that the activity is carried out by a religious community does not preclude the application of the rules of the Treaty, including those governing competition law. The ECJ recalled that any activity consisting of offering goods or services on a given market is an economic activity. The fact that the offer of goods or services is made on a not-for-profit basis does not prevent the entity which carries out those operations on the market from being considered an undertaking, since its offer is in competition with those of other operators which do seek to make a profit. Services normally provided for remuneration are services that may be classified as economic activities. The ECJ also referred to the concept of ‘services’ within the meaning of Article 57 TFEU, referring to the judgments Schwarz and Gootjes-Schwarz36 and Commission v Germany37 in which it considered that courses provided by educational entities financed essentially by private funds, notably by third parties, constitute services. However, according to the ECJ, the same cannot be said of courses provided by entities which are integrated into a system of public education and financed, entirely or mainly, by public funds. Indeed, referring to the same case law, the ECJ stated that in establishing and maintaining such a system of public education, which is, as a general rule, financed from public funds, the State is not seeking to engage in lucrative activity, but is fulfilling its social, cultural and educational obligations towards its people.38 The ECJ explained that in that context, it is possible that a single establishment may carry out a number of activities, both economic and non-economic, provided that it keeps separate accounts for the different funds it receives so as to exclude any risk of cross-subsidisation of its economic activities by means of public funds received for its non-economic activities.39 Consequently, the ECJ considered that, subject to the referring Court’s further examination, the Congregación’s educational activities that are subsidised by the Spanish State could not seemingly be classified as economic. By contrast, the ECJ stated that the Congregación’s educational activities that are not financed by the Spanish State, corresponding to early-years teaching, extracurricular activities and post-compulsory education, could be classified as economic activities.40 Regarding the concept of selectivity, the ECJ noted that ICIO is a tax that is normally payable by all taxpayers who carry out construction or renovation works to which that tax applies and that the exemption at issue would have the effect of mitigating the charges that are included in the Congregación’s budget. Consequently, a tax exemption of that nature would confer an economic advantage on Congregación. Furthermore, the ECJ noted that the order of 5 June 2001 targeted specific religious territorial units, orders, congregations and institutes which are entitled to full and permanent exemption from ICIO. As a result, it concluded that the order was not a general measure applicable without distinction to all economic operators but was rather a measure that was prima facie selective.41 The ECJ finally checked whether the differentiation at issue arose from the nature or the overall structure of the system of which they are part, which, according to the established case law, is not encompassed in the notion of State aid. The ECJ noted that there was nothing in the documents before the ECJ which suggested that the tax exemption provided for by the order of 5 June 2001 derived directly from the founding or guiding principles of the Kingdom of Spain’s tax system or that it was necessary for the functioning and efficiency of that system.42 B. Concept of State intervention and State resources 1. Case C-150/16—Fondul Proprietatea In a judgment dated 18 May 2017, the ECJ answered to a request for a preliminary ruling in the context of proceedings between Fondul Proprietatea SA (‘Fondul’) and Complexul Energetic Oltenia SA (‘CE Oltenia’) concerning the annulment of the decision of the General Meeting of shareholders of CE Oltenia to accept and transfer in lieu of payment with respect of its claim against Electrocentral Grup SA (‘Electrocentral’). CE Oltenia is a company which is majority owned by the Romanian State and which was owed a debt by Electrocentrale, a company which is wholly owned by the Romanian State.43 On 27 September 2013, the General Meeting of shareholders of CE Oltenia approved the transfer to that company of a thermal power plant, owned by Electrocentrale, as a transfer in lieu of payment. Following an application for a declaration of invalidity of that decision, the Court of Appeal of Craiova decided to stay the proceedings and to refer to the ECJ the question as to whether the decision of a company of which a Member State is the main shareholder to accept a transfer in lieu of payment of an asset, which is the property of another company in which the State is the sole shareholder, in order to extinguish a debt, and pay an amount corresponding to the difference between the estimated value of that asset and the amount of that debt, is liable to constitute State aid within the meaning of Article 107 TFEU. The present case largely constitutes a mere reminder of the boundaries concept of aid, and for the purposes of this review, the developments regarding the usage of State resources are summarised. In doing so, the ECJ, in essence, recalls the judgment of 16 May 2002, France v Commission.44 In relation to the condition that the measure must be financed by the State through State resources, the ECJ recalled that the concept of State aid covers all the financial means by which the public authorities may actually support undertakings, irrespective of whether or not those means are permanent assets of the public sector. Even if the sums corresponding to the measure in question are not permanently held by the Treasury, the fact that they constantly remain under public control, and are therefore available to the competent national authorities, is sufficient for them to be categorised as State resources. First, the ECJ recalled that the State is able, by exercising its dominant influence over public undertakings, to direct the use of their resources in order to finance an advantage in favour of other undertakings.45 Second, regarding the condition that an aid measure taken by a public undertaking must be attributable to the State, this can be inferred from a set of indicators arising from the circumstances of the case and the context in which that measure was taken.46 The ECJ recalled that, the fact that the body in question could not take the contested decision without taking account of the requirements of the public authorities, or the fact that those undertakings through which the measure had been granted had to take account of directives issued by State agencies, act as relevant factors. In addition, the ECJ recalled that, in line with the previous decisions,47 other factors might be relevant, in particular (i) the integration of the measure into the structures of the public administration, (ii) the nature of the undertaking’s activities and the exercise of the latter on the market in normal conditions of competition with private operators, (iii) the legal status of the undertaking, (iv) the intensity of the supervision exercised by the public authorities over the management of the undertaking, or (v) any other indicator showing, in a particular case, an involvement of the public authorities in the adoption of a measure or the unlikelihood of them not being involved, having regard also to the compass of the measure, its content or the conditions it contains.48 The ECJ also recalled that the fact that a public undertaking has been constituted in the form a capital company under ordinary law cannot exclude the possibility of an aid measure taken by such a company being imputable to the State. 2. Case C-329/15—ENEA In a judgment dated 13 September 2017, the ECJ answered a request for a preliminary ruling recalling the conditions under which a measure may be considered attributable to the State, and more specifically in the context of support schemes for electricity generation, and in the present case, regarding electricity produced by cogeneration, i.e. the simultaneous production of electricity and heat both of which are used.49 The Polish State established an obligation to purchase energy produced by cogeneration at a minimum of 15%, with the production of heat and the setting up of a maximum price for the sale of electricity to final users. The president of the Office for the regulation of energy in Poland had the power, when approving the tariff charged by electricity companies, to fix the price of electricity produced by cogeneration at a level that he considered reasonable when calculating the maximum price that could be charged when selling electricity to end users. A financial penalty was imposed on ENEA, a private company which is wholly owned by the Polish State, for not having fulfilled its quota obligation to purchase electricity produced by cogeneration. It then brought an action at national level which was dismissed. On appeal, it claimed that the obligation to purchase electricity produced by cogeneration constituted unlawful State aid, given that it had not been notified to the European Commission. The ECJ considered that Article 107(1) TFEU must be interpreted as meaning that a national measure, placing an obligation on both private and public undertakings to purchase electricity produced by cogeneration, does not constitute intervention by the State or through State resources. While the ECJ considered that the obligation to supply electricity produced by cogeneration was attributable to the State,50 it did not meet the criterion for an intervention. The ECJ recalled that this condition is satisfied not only where aid is granted directly by the State but also where it is granted by public or private bodies established or designated by the State with a view to administering the aid. However, if companies are not appointed by the State to manage a State resource, but are merely bound by a purchase obligation using their own financial resources, this would not meet the relevant test. In the present case, in certain circumstances electricity suppliers purchased electricity produced by cogeneration at a higher price than that charged to end users, which resulted in extra costs for suppliers. Consequently, given that those extra costs cannot be passed on entirely to end users and are not financed by a compulsory contribution imposed by the State or as an offsetting mechanism, the ECJ concluded that the suppliers were not appointed by the State to manage a State resource, but were funding a purchase obligation imposed on them by having recourse to their own financial resources.51 ENEA and the Commission argued that most of the undertakings bound by the purchase obligation were public undertakings governed by private law. Therefore, the obligation could be regarded as being financed through State resources. The ECJ recalled that, according to settled case law,52 the resources of public undertakings may be regarded as State resources where the State is capable, by exercising its dominant influence over such undertakings, of directing the use of their resources in order to finance advantages to the benefit of other undertakings. The mere fact that the State held the majority of the capital in some of the undertakings subject to the purchase obligation does not lead to the conclusion that it exercised a dominant influence which enabled it to direct the use of their resources. It appears that the purchase obligation applied equally to all electricity suppliers, regardless of whether their capital was predominantly held by the State or by private operators. Further, the ECJ specified that the fact that the measure is attributable to the Member State concerned does not mean that it may be inferred that this Member State exercises a dominant influence over an undertaking in which it is the majority shareholder.53 There is nothing in the State’s legislative conduct suggesting that it exercised such influence in its capacity as majority shareholder in an undertaking. C. Distinction between new and existing aid 1. Case C-467/15P—Commission v. Italy A sufficiently broad interpretation of the concept of ‘new aid’ is key in ensuring the effectiveness of State aid since any alteration made to an existing aid scheme may put in question the scheme as a whole. The Court in a judgment of 25 October 2017 had the opportunity to stress this principle and stated that ‘if a Member State makes an alteration to an existing aid scheme in breach of an authorisation condition for that scheme, that Member State will have no guarantee that the authorised aid scheme is not affected by that alteration and that the advantages granted on the basis of that scheme will therefore be retained’.54 The ECJ set aside a judgment by which the General Court partially annulled a Commission decision dated 11 January 2012 (‘the contested decision’) declaring the deferral of the payment of a milk levy as unlawful aid. More specifically, the case regards amendments put in place by the Italian authorities in 2010 (‘legislative alteration’), in relation to a levy owed to the European Union by Italian milk producers for exceeding milk quotas through (i) a system of staggered payments by which the amount of the additional levy born by the Italian Republic would be fully repaid to it by milk producers without interest, in the form of annual instalments over a period of up to 14 years and (ii) a deferral payment, by which the Italian authorities delayed by 1 year the payment of the amounts initially due on 31 December 2010. A Council decision of 2003 had initially authorised the Italian authorities to allow milk producers to repay their debt by way of deferred payment over a number of years without interest, notably subject to the condition that milk producers repay in full their debt to the Italian Republic in yearly instalments of equal size and to do so over a period not exceeding 14 years starting from 1 January 2004. In the contested decision, the Commission considered that the two measures at issue constituted new and unlawful aid and ordered their recovery together with interest. The present judgment offers interesting developments in the context of the second ground of appeal by which the appellant claimed that the General Court wrongly classified the measures as existing aid. The ECJ started by examining whether the deferral payment was made in compliance with the Council decision and notes that such measure did not take into account the conditions under which interest-free loans granted by the Italian Republic were to be reimbursed in yearly instalments of equal size. Consequently, the Court considered that the legislative alteration at issue had the effect of transforming the aid scheme authorised by the Council decision into new and unlawful aid.55 The Court noted that Article 1(c) of Regulation No 659/1999, defining the concept of ‘new aid’ is established in broad terms, and is thereof ‘capable of covering not only the alteration itself, but also the aid concerned by that alteration’.56 The ECJ further noteed that the deferral payment does not constitute an alteration of a purely formal or administrative nature, nor can it be qualified as an increase in the original budget of the aid scheme. The Court considered that the measure was implemented in breach of the authorisation condition governing the aid repayment authorised exceptionally by the Council under the third subparagraph of Article 108(2) TFEU. Further, the Court considered that the case law relied on by the Italian Republic in support of its arguments was not relevant to case at hand. First, the Court stated that it was apparent from the judgment Heinken Brouwerijen57 that, where the initially notified scheme has in the meantime undergone an alteration of which the Commission has not been informed, the implementation prohibition of Article 108(3) TFEU is fully applicable, unless that alteration in fact constitutes a distinct aid measure which should be assessed separately. Secondly, in the judgment HGA and Others v Commission,58 the Court examined the issue of whether the change made to an original aid scheme, in breach of the approval conditions, constituted an alteration of existing aid, thereby giving rise to new and unlawful aid. It did not, however, examine the effects of that alteration on the original aid scheme. The ECJ concluded that the General Court in fact required the Commission to establish that the alteration to the existing aid affects the very substance of the pre-existing measure in order for it to be classified as new aid together with the existing aid to which that alteration relates. The Court considered that in doing so, the General Court misconstrued the concept of new aid and therefore committed an error of law. D. Selectivity and advantage 1. Case C-606/14 P Portovesme Srl v Commission 2016 saw a number of relevant decisions regarding the notion of selectivity and advantage, and in 2017 there were again a couple of noteworthy judgments in this regard. In a judgment dated 1 February 2017, the ECJ dismissed in its entirety the action brought by Portovesme seeking the annulment of the General Court’s judgment59 regarding a Commission decision in relation to reduced electricity tariffs introduced by the Italian State. In 2011, the Commission adopted a decision which declared the notified Italian measures and the aid granted through a ministerial decree to be incompatible with the internal market. For the latter, the General Court also ordered its recovery. Both measures related to the prolongation of existing measures. The judgment reiterates that national measures designed to compensate undertakings for the loss they incur due to their establishment in a specific region of a Member State may constitute a selective advantage, including when the said measures apply to a localised part of the Member State. Moreover, the Court recalled that the objective of the measure at stake cannot be taken into account when assessing the existence of the aid but rather when assessing its compatibility.60 Portovesme raised seven pleas in law, four of which relate to the assessment of the existence and compatibility of the aid and only two of them were found—at least partly—admissible. Within that context, the ECJ noted that the General Court is not bound to deliver its reasoning by addressing exhaustively and one by one all the points raised by the parties, provided that the reasons for which a given decision was adopted are sufficiently clear and complete.61 That is important not only for the interested parties but also for the judicature when exercising its control. By way of example as to how the implicit nature of the Court’s reasoning may nonetheless be detailed enough for the above purposes, the ECJ noted that reference to high electricity consumption inherent in Portovesme’s activity supported the conclusion that it had benefited from preferential tariffs. 2. C-100/16 P Ellinikos Chrysos AE Metalleion kai Viomichanias Chrysou v Commission In a judgment rendered on 9 March 2017, the ECJ dismissed an appeal lodged by Ellinikos Chrysos AE Metalleion kai Viomichanias Chrysou against the General Court’s decision62 which upheld the respective Commission decision.63 With the latter, the Commission found that the sale of the Cassandra mines from the Hellenic Republic to Ellinikos Chrysos was made at a price below cost adding up to the tax exemption relating to this transaction which qualified as an additional element of aid. Subsequently, the Commission had ordered the recovery of the aid. In essence, the appellant disputed the assessment of the amount of the advantage granted as a result of the transfer of the mines and land in Cassandra. That assessment was made on the basis of the economic value of the mines for which the Commission mainly relied on an expert report.64 In this respect, the Court clarified that the absence of infrastructure and mining permits does not affect the existence of the mines’ positive value. Furthermore, the Court recalled that the General Court is not under an obligation to refer exhaustively and one-by-one to all the arguments raised by the parties, as long as its implicit reasoning sufficiently allows the parties to understand the reasons for dismissing their arguments and the ECJ to perform its review.65 In this regard, the Court found that the General Court infringed that obligation when rejecting the applicant’s argument relating to the purpose for which that expert report was granted.66 However, the ECJ reiterated that since the appellant does not claim any manifest error of assessment or distortion of facts or evidence, it cannot uphold this ground of appeal. In this judgment, the Court made use of its competence under Article 61 of the Statute of the Court, pursuant to which it may give a final judgment in a matter after setting aside the judgment of the General Court. That final judgment was given in respect of the suitability of the said expert report to evaluate the mines, given that it was originally produced to advise the Board of Directors of European Goldfields on the potential acquisition of additional shares of Ellinikos Chrysos.67 In this regard, the Court stressed that as long as the credibility or objectivity of such a report is not questioned, the purpose for which it has been created does not influence its value. 3. Case C-300/16P—Commission / Frucona Košice In a judgment dated 20 September 2017, the ECJ dismissed the appeal lodged by the Commission seeking to set aside a judgment of the General Court which annulled its decision declaring as illegal State aid a 65% remission on excise duties by a local tax office.68 The present case recalls the boundaries of the private creditor test and the legal standard incumbent upon the Commission to assess all the relevant factors. The ECJ first started by recalling the boundaries of the notion of the private creditor test, stating, in line with the Advocate General, that nothing prevents the recipient of the aid from invoking the applicability of that test, in which case it is for the Commission to assess whether the test needs to be applied and, if so, to apply it.69 Secondly, as regards the relevance of the subjective state of mind, the ECJ noted that the starting point for determining whether the private operator test is to be applied must be the economic nature of the Member State’s action, irrespective of the capacity under which the Member State thought it was acting or which alternative courses of action it considered before adopting the measure in question. The Commission’s assessment cannot be limited to the options that the competent public authority actually took into consideration, but must necessarily cover all the options that a private creditor would reasonably have envisaged in such a situation.70 Thus, the General Court did not err in law when it stated that the Commission could not make a distinction when applying the test based on the various alternatives to the measure at issue. According to the Commission, the General Court created a new requirement that the Commission has to reconstruct the behaviour of the ideal, rational and fully informed hypothetical private creditor by seeking any possible information and evidence. The ECJ rejected the Commission’s reasoning as being based on an incorrect assessment of the private creditor test. The Court noted, first, that the General Court indicated that the assessment of the test must be made in relation to a situation as close as possible to that of the public authority in question. Second, it noted that the General Court pointed out the evidence that the institution must, where appropriate, obtain and take into consideration, as well as the general limits of its investigatory obligations.71 Concerning the General Court’s finding of fact that the evidence in the administrative file did not substantiate to the requisite legal standard the Commission’s assessment of the liquidation factors and that it should have sought to obtain additional information in order to substantiate its conclusions, the ECJ considered that these assessments in no way exceed the limits of judicial review of a manifest error of assessment. The ECJ pointed out that the General Court merely noted the internal contradictions of the decision at issue and made findings of fact. According to these none of the evidence in the administrative file was able to substantiate the liquidation factors used by the Commission.72 Finally, the General Court found that the Commission had failed to obtain information on the anticipated duration of the tax execution procedure and to obtain information concerning the costs that such a procedure might generate. Such considerations, in so far as they concern the information that normally a prudent and diligent private creditor in a situation as close as possible to that of the local tax office could not ignore, are capable, in themselves of justifying the General Court’s decision that the Commission failed to take into consideration the relevant information.73 E. Services of general economic interest (‘SGEI’) 1. C-660/15 P Viasat Broadcasting UK Ltd v Commission In a judgment dated 8 March 2017, the ECJ dismissed an appeal brought by Viasat Broadcasting (‘Viasat’) seeking to set aside a judgment of General Court74 upholding the respective Commission Decision.75 With the latter the Commission found that the measures in question as adopted in favour of TV2/Danmark (‘TV2’) by the Danish Authorities constituted State aid as they failed to meet the second and fourth condition of the Altmark judgment76 criteria, yet the aid was compatible with the internal market. Viasat, a commercial broadcasting company active in the Danish market and direct competitor of TV2 unsuccessfully sought the annulment of that decision before the General Court. In its appeal of the General Court’s judgment, Viasat claimed that the Commission is required when making its assessment under 106(2) TFEU to examine whether the Altmark conditions are satisfied. In this respect the ECJ upheld the ruling of the General Court by reaffirming that the examination of the Altmark case law occurs upstream, namely when the measure is assessed in order to determine whether it is to be classified as aid or not. Further, similarly to the statement made in the case Regione autonoma Della Sardegna77 (see below) and in line with established case law, the General Court recalled that the assessment of the Altmark conditions is redundant once the Commission has classified a measure as aid.78 2. Case T-219/14—Regione autonoma della Sardegna In a judgment dated 6 April 2017, the General Court dismissed the action for annulment of a Commission decision which declared aid measures granted by the Autonomous Region of Sardinia (‘the RAS’) to the maritime company Saremar, a former member of the bankrupt Tirrenia group, in the form of a public service compensation and a capital increase, as incompatible aid.79 Saremar is a company that ensured a public service of maritime cabotage in the Sardinian region. Its capital was transferred free of charge to the RAS with a view to privatise it. Such process was only completed in July 2012 when a consortium of private ship-owners operating on the same routes acquired Saremar. In 2011, the RAS adopted a regional decision requesting Saremar to examine the viability of a maritime cabotage service on three routes and defined a series of measures to be taken in order to compensate for the losses suffered by Saremar in connection with Tirrenia’s bankruptcy proceedings. Saremar had suffered a record loss as a consequence of devaluating 50% of its claim against Tirrenia’s bankruptcy. The RAS decided (i) to cover that loss by reducing Saremar’s capital and (ii) to grant Saremar a capital increase subsequently to the capital reduction.80 In a second regional decision adopted in late 2011, the RAS ordered Saremar to activate the mixed route Olbia-Civitavecchia, as a result of the analysis of Saremar which indicated that only that route enabled the achievement of financial balance. The European Commission adopted a decision concerning aid measures in favour of Saremar granted by RAS on 22 January 2014 against which the RAS on 2 April 2014 brought an action for annulment to the General Court. This judgment contains relevant developments on the notion of interest in bringing proceedings. In particular, the Commission submitted that, given that Saremar was in liquidation, the RAS no longer had any interest in bringing proceedings. The Court recalled Mory and Others v. Commission81 in which it was stated that the interest in bringing proceedings must continue until the final judgment, failing which there will be no need to adjudicate. Such an interest requires that the annulment of that act must be capable, in itself, of having legal consequences and that the action may therefore, through its outcome, procure an advantage to the party which brought it. An applicant’s interest in bringing proceedings must be vested and current and may not concern a future and hypothetical situation. In the present case, the General Court considered that despite Saremar being placed under liquidation, the RAS had not lost its interest in bringing proceedings. First, the contested decision continues to produce legal effects affecting the RAS, which have not become obsolete merely because Saremar has been placed under liquidation. As a result of the contested decision, the RAS is prevented from disbursing to Saremar the non-executed aid measures (capital increase). Second, regarding the already disbursed aid, the mere fact that the undertaking is in liquidation does not call into question the principle that unlawful aid must be recovered.82 On substance, the judgment essentially focuses on the second Altmark condition and recalls that that condition relates to the need of establishing beforehand, in an objective and transparent manner, the parameters on the basis of which the compensation is calculated, in order to prevent the existence of a selective advantage. The General Court noted that in the present case, as observed by the Commission, none of the regional decisions by which the RAS mandated Saremar to operate routes to and from the mainland, provided either expressly or implicitly for the payment of public service compensation. All those decisions were based on the postulate that the performance of those public service obligations had to be done in accordance with market conditions and thus in a manner that safeguards the activity’s viability without recourse to public service compensation paid by the RAS.83 As a result, since no provision was made for such compensation beforehand, it could not be calculated on the basis of objective and transparent parameters defined beforehand.84 It was only within the framework of the 2012 Regional Law that the RAS took the decision to pay Saremar a subsidy to cover potential losses arising from that service. The General Court considered that given the rejection of this part of the plea, the other parts of the second plea are ineffective, due to the fact that the Altmark conditions are cumulative and independent of one another. In its fourth plea, in essence, the complainant claims that the Commission was wrong in considering that since Saremar was a company in difficulty, the compatibility of the compensation should be assessed in light of Article 107(3)(c) TFEU, rather than Article 106(2) TFEU. The General Court considered that the Commission explored for the event where Saremar would not be held to be in difficulty, whether the disputed compensatory measure could be compatible with Article 106 (2) TFEU in light of the criteria of the 2011 SGEI Framework and concluded that it could not. Consequently, even if the Commission had not examined the compatibility of that measure in light of Article 107(3)(c) TFEU and the Guidelines on aid for rescuing and restructuring, it would have in any event classified it as incompatible under Article 106(2) TFEU. Further, the General Court considered that the complainant failed to demonstrate the existence of a violation of article 106(2) TFEU. It first observed that the concept of firm in difficulty is an objective notion that must be assessed solely in light of the specific indices of the financial and economic situation of the undertaking in question.85 Consequently, the underlying reason for the undertaking’s losses, in particular those associated with the performance of public service obligations, is not a decisive factor for determining whether or not the undertaking is in difficulty. Secondly, in stating in paragraph 9 of the 2011 SGEI Framework that the aid assessment to an SGEI provider in difficulty is governed by the Guidelines on aid for rescue and restructuring, the Commission did not place an unlawful restriction on the scope of Article 106(2) TFEU.86 F. Procedure 1. Case C-414/15 P—Stichting Woonlinie In a judgment dated 15 March 2017, the ECJ commented on the scope of the General Court’s powers of review. The ECJ set aside the order of the General Court dated 12 May 2015 by which the General Court dismissed the action for partial annulment lodged by Dutch housing corporations against a Commission decision declaring an existing scheme for housing corporations as no longer compatible with the common market. Following a notification by the Dutch authorities of a general scheme of State aid for housing corporations, the Commission classified this scheme as existing aid. The Dutch authorities subsequently withdrew their notification. The Commission issued a letter to the Dutch authorities expressing doubts as to its compatibility with the internal market. On 3 December 2009, the Netherlands accepted the Commission’s proposed appropriate measures to ensure the compatibility of the scheme with State aid law and more specifically with Article 106(2) TFEU, namely by (i) limiting social housing to a clearly defined target group of underprivileged individuals or socially disadvantaged groups, (ii) carrying out commercial activities on market terms with public service activities and commercial activities having separate accounts and being audited and (iii) adapting the supply of social housing to the demand from underprivileged individuals and socially disadvantaged groups. The Commission had classified the measures included in the general scheme as existing aid, due to its creation before the Treaty of the European Communities entered into force in the Netherlands. Further, the Commission referred to the commitments undertaken by the Dutch authorities to amend the functioning of the scheme by implementing those commitments through a new ministerial decree and a new Housing Act. On 30 August 2010, the Commission adopted a decision amending the contested decision in which it concluded that one of the measures referred into the latter, namely the right to obtain a loan from the Bank Nederlandse Gemeenten, could not be regarded as being compatible with State aid law. The ECJ reiterated that, regarding an existing aid scheme, in adopting a decision pursuant to Article 18 in conjunction with Article 19(1) of Regulation No 659/1999, the Commission accepts the State’s commitments as being capable of addressing its concerns regarding the compatibility with the internal market of the existing scheme examined, and concludes the examination procedure provided for in Article 108(1) TFEU. Such a decision necessarily supposes that the Commission assessed whether the aid scheme in question was compatible with the internal market and, if it was not or no longer, consequently, appropriate measures were necessary in order to remedy that incompatibility. The assessment carried out and the derived conclusion cannot be excluded from review by the EU judicature without undermining the right to effective judicial protection of the beneficiaries of the existing aid scheme. The Court further explained that the right to effective judicial protection of the beneficiaries of an existing aid scheme therefore implies that, in the case of an action brought against a decision adopted under Article 18 of Regulation No 659/1999 in conjunction with Article 19(1) of that regulation, those beneficiaries may also contest the Commission’s assessment of that scheme, its conclusion of incompatibility and the measures necessary to remedy that incompatibility. As a result, by rejecting the appellant’s arguments claiming that the General Court’s powers of review did not extend to the Commission’s examination of the aid scheme before the commitments given by the Dutch authorities and that that examination did not form part of the decision at issue, the General Court erred in law. The fact that assessment is set out not in the decision at issue but in the letter pursuant to Article 17 with which the Commission informs the Member State of its preliminary view regarding an existing aid measure is irrelevant. According to settled case law, intermediate measures whose aim is to prepare for the final decision do not, in principle, constitute acts which may form the subject matter of an action for annulment, if it is established that the illegality of that measure can be raised against the final decision. In the present case, the Court noted that the Article 17 letter constituted a first step in the preparation of the decision at issue. As a result, the appellants may not be prevented from invoking the lawfulness of the assessment contained in that letter in support of the action against the final decision. The Court further specified that such a finding is not called into question by the Commission’s argument relating to the conclusion that the existing aid scheme is incompatible with the internal market. The Court conceded that, owing to the cooperation mechanism between the Commission and the Member States established by Article 108(1) TFEU, on which the system for reviewing existing schemes is based, proceedings brought under that provision do not lead to a formal finding that an aid scheme is incompatible with the internal market. However, once the Commission records the acceptance of appropriate measures by the Member State concerned, its initial conclusion that the existing aid scheme is incompatible with the internal market and the correlated proposal of appropriate measures, produce the same legal effect as those of a formal finding. Finally, the Court specified to which extent the appropriate measures may have a binding effect and produce legal effects, in accordance with established case law. The appropriate measures that the Commission proposes under Article 108(1) TFEU, in so far as they are accepted by a Member State, are binding. However, that acceptance produces legal effects only if it is notified to the Commission and the latter records and informs the Member State thereof. As a result, the General Court erred in law in rejecting as manifestly unfounded the appellant’s arguments putting forward that the Commission had acted ultra vires in requiring appropriate measures and rendering them binding in the decision at issue. 2. Case C-228/16 P—DEI v Commission In a judgment dated 31 May 2017, the ECJ set aside the order dated 9 February 2016 by which the General Court held that there was no longer any need to give a decision on the action for annulment of the European Commission letter dated 12 June 2014, rejecting DEI’s complaints concerning State aid.87 The ECJ noted that the 2015 decision merely confirms the 2014 decision since, following a review of the information provided to it, the Commission simply reiterated its refusal to open a formal examination procedure without, in fact, adding anything new. Consequently, the 2014 decision was not withdrawn by the 2015 decision. Moreover, accepting that the adoption by the Commission of a new decision would mean that it would be unnecessary to adjudicate on an action for annulment brought against the initial decision, would impede the effectiveness of the judicial review. It would then be sufficient for the Commission to decide to take no further action on a complaint and then, after that party brought an action, to reopen the preliminary examination stage and repeat those operations as many times as are necessary in order to avoid any judicial review of its actions.88 The same is true, a fortiori, where the Commission, during the proceedings before the General Court concerning an action for annulment of a decision to take no further action on a complaint, asks that those proceedings be stayed to allow it to re-examine the case, then purely and simply confirms its initial decision.89 It could only be different if the Commission withdrew a decision to take no further action on a complaint in order to remedy the illegality affecting that decision, while stating the nature of the illegality vitiating that decision. Nonetheless, in any event, it is not apparent from the 2015 decision that the Commission sought to withdraw the 2014 decision in order to remedy the illegality vitiating that decision. As a result, the ECJ considered that the General Court wrongly held that the 2015 decision had formally replaced the 2014 decision and that, accordingly, the action had become void, such that there was no longer any need to rule in that dispute.90 V. Brexit and State Aid The last part of this survey provides a short overview on the debate about the impact of Brexit on State aid law although it must be noted that the impact Brexit may have on EU State control within the UK remains highly speculative at this stage. EU State aid rules will cease to apply to the UK only after its withdrawal from the EU has become effective. Technically, and subject to international trade rules, the absence of any EU scrutiny on public money spending would mean that the UK Government would have a greater freedom in granting aid to UK businesses and possibly adopting more protectionist measures. These might also include advantageous fiscal measures or a less stringent approach to tax rulings91—which have been recently at the heart of State aid control—to attract more businesses in the UK. Yet, unlimited freedom on granting aid does not seem to be the most likely scenario. This is particularly relevant since the UK, even after the completion of Brexit, will still be a member of the World Trade Organisation (‘WTO’), albeit that its membership terms currently are the EU’s terms which have to be re-negotiated for the UK. The Agreement on Subsidies and Countervailing Measures (‘SCM Agreement’)92 will still apply to the UK following Brexit. Together with the EU State aid control, the WTO rules on subsidies are the two main international subsidy control pillars. Both systems largely rely on similar concepts of what constitutes the ‘aid’ or the ‘subsidy’.93 However, these systems also present significant differences. Under EU State aid control, there is a presumption of illegality for the granting of aid unless special circumstances or exemptions apply, while in principle subsidies are allowed under the SCM Agreement94 unless injury is proven. Similarly, EU State control rules apply to both goods and services, while the WTO rules on subsidies apply solely to goods. On a procedural ground, the main differences are that (i) the WTO anti subsidy rules do not impose any procedural requirement, equivalent to prior notification of the measure to the European Commission or standstill obligation and (ii) that any opposition against a favourable measure adopted by a State can only be initiated by another State and not by individuals, as is the case in the EU. Absent an agreement between the EU and the UK about an equivalent to state aid rules in the common interest post-Brexit, the WTO rules will indeed act as a certain safeguard with respect to the future State interventions of the UK authorities. However, such safeguard will be limited compared to that of the EU given that the UK will have no constraints with respect to its services sectors, to which the WTO SCM Agreement does not apply. Thus, the UK might offer domestic companies competitive advantages over EU companies. However, such treatment would not be unqualified, as the WTO General Agreement on Trade in Services is likely to come into play, should the UK grant preferred treatment to its domestic companies. Further, the UK could also consider implementing a domestic State aid control system. In particular, a discussion on the State aid aspect of Brexit recently emerged in an Explanatory Note to the EU Withdrawal Bill. Clause 4 of that Note details EU rights and obligations that will continue to be recognised and enforced in the UK domestic law, by pointing to the respective provisions of the Treaty on the Functioning of the European Union (‘TFEU’).95 The list of TFEU articles containing the provisions to be converted into domestic law includes Articles 107 and 108(3) TFEU. Given that these articles concern the standstill obligation and the requirement of notification to the European Commission, their inclusion to that list for conversion probably implies that further domestic statutory arrangements must be made. A potential scenario is the transfer of the European Commission’s current powers and competencies to an independent body in the UK (e.g. potentially the Competition and Markets Authority). In that case, the UK could continue to operate under a State aid regime that would be equivalent to the EU one. This, in turn, could facilitate the inclusion of State aid provisions in the future EU-UK trade agreement. As evidenced by the European Commission’s latest State aid Scoreboard96 the UK’s spending on State aid grants was fairly limited. However that does not necessarily suggest that in a post-Brexit landscape, with potentially looser scrutiny, such containment of State intervention will remain unaltered. On the other hand, considering that the completion of the Brexit process itself might give rise to unforeseen costs, it is highly likely that the UK government will want to control any other expenditure and thus it might set up a competent authority in this respect. Footnotes 1 Commission Regulation (EU) 2017/1084 of 14 June 2017 amending Regulation (EU) No 651/2014 as regards aid for port and airport infrastructure, notification thresholds for aid for culture and heritage conservation and for aid for sport and multifunctional recreational infrastructures, and regional operating aid schemes for outermost regions and amending Regulation (EU) No 702/2014 as regards the calculation of eligible costs, OJ L 156, 20.6.2017, p. 1–18. 2 Eligible costs of €130 million per project or €150 million per project in a maritime port included in the work plan of a Core Network Corridor. 3 Eligible costs of €40 million per project or €50 million per project in an inland port included in the work plan of a Core Network Corridor. 4 Commission Decision of 27 July 2017, Ports taxation in Belgium (‘Ports taxation in Belgium’) (Case SA. 38393), so far only available on the Commission’s website. 5 Commission Decision of 27 July 2017, Ports taxation in France (‘Ports taxation in France’) (Case SA. 38398), so far only available on the Commission’s website. 6 Case T-128/98 Aéroports de Paris v. Commission, EU:T:2000:290, paragraph 125 and case T-196/04 Ryanair v. Commission, EU:T:2008:585, paragraph 88. 7 Commission decision of 15 December 2009 (N 385/2009) and Commission decision of 15 June 2011 (44/2010). 8 See, Ports taxation in France, paragraph 48. 9 Ibid. paragraph 59. 10 Ibid. paragraph 66. 11 Ibid. paragraph 83. 12 See, Ports taxation in France, article 2 and Ports taxation in Belgium, article 2. 13 Commission Decision of 4 October 2017, Luxembourg – Alleged aid to Amazon (Case SA. 38944), not yet published in the OJ or available on the Commission’s website. 14 Commission press release of 4 October 2017, IP/17/3701. 15 Commission press release of 4 October 2017, IP/17/3702. 16 Commission Decision of 30 August 2016 alleged State aid implemented by Ireland to Apple (Case SA. 38373), OJ L 187, 19.07.2017, p. 1. 17 Commission press release of 26 October 2017, IP/17/4201. 18 Communication from the Commission on the application, from 1 August 2013, of State aid rules to support measures in favour of banks in the context of the financial crisis (‘Banking Communication’), OJ C 216, p. 1–15. 19 Commission Decision of 4 September 2017, Rescue aid in favour of Air Berlin PLC & Co. Luftverkehrs KG (Case SA.48937), so far only available on the Commission’s website, paragraph 41. 20 Ibid. paragraphs 41–57. 21 Ibid. paragraph 53. 22 Ibid. paragraph 87. 23 Commission Decision of 10 January 2017, on State aid which France is planning to implement in favour of Areva group (‘Areva’), (Case SA.44727), OJ L 155, 17.6.2017, p. 23, recital 3. 24 Communication from the Commission, Guidelines on State aid for rescue and restructuring non-financial undertaking in difficulty, 31.7.2014, OJ C 249, p. 1. 25 Areva, paragraph 293. 26 Areva, paragraphs 316–317. 27 Case T-620/17 Teollisuuden Voima v Commission, pending. 28 Commission Decision of 16 June 2017, Measures in favour of OSE S.A., (Case SA.32543), OJ C 254, 4.8.2017, p. 1. 29 Ibid. paragraph 9. 30 Ibid. paragraphs 18–21. 31 Ibid. paragraph 45. 32 Ibid. paragraph 13. 33 Ibid. paragraph 66. 34 Ibid. paragraph 122. 35 Case C-74/16 Congregación de Escuelas Pías Provincia Betania, EU:C:2017:496. 36 Case C-76/05 Schwarz and Gootjes-Schwarz, EU:C:2007:492, paragraph 40. 37 Case C-318/05 Commission v Germany, EU:C:2007:495, paragraph 69. 38 Case C-74/16 Congregación de Escuelas Pías Provincia Betania, EU:C:2017:496, paragraph 50. 39 Ibid. paragraph 51. 40 Ibid. paragraph 57. 41 Ibid. paragraph 70. 42 Ibid. paragraph 72. 43 Case C-150/16 Fondul Proprietatea, EU:C:2017:388. 44 Case C-482/99, France v Commission, EU:C:2002:294, in particular, paragraphs 38,55, 56, and 57. 45 Case C-150/16 Fondul Proprietatea, EU:C:2017:388, paragraph 17. 46 Ibid. paragraph 18. 47 Case C-482/99 France v Commission, EU:C:2002:294, paragraphs 55 and 56. 48 Case C-150/16 Fondul Proprietatea, EU:C:2017:388, paragraph 19. 49 Case C-329/15 ENEA, EU:C:2017:671. 50 Ibid. paragraph 22. 51 Ibid. paragraph 30. 52 Case C-482/99 France v Commission, EU:C:2002:294, paragraph 38. 53 See Case C-482/99 France v Commission, EU:C:2002:294, paragraphs 38 and 39. 54 Case C-467/15P Commission v Italy, ECLI:EU:C:2017:799. paragraph 49. 55 Ibid. paragraph 44. 56 Ibid. paragraph 46. 57 Judgment of the Court, 91/83 & 127/83 Heinken Brouwerijen, EU:C:1984:307, paragraph 21. 58 Cases C-630/11 P to C-633/11 P HGA and Others v Commission, EU:C:2013:387, paragraphs 89–95. 59 Case T-291/11 Portovesme v Commission, EU:T:2014:896. 60 Case C-606/14 P Portovesme Srl v Commission, EU:C:2017:75, paragraph 105. 61 Ibid. paragraph 102. 62 Case T-233/11 Greece v Commission, EU:T:2015:948. 63 Commission Decision of 23 February 2011, State aid C 48/08 (ex NN 61/08) implemented by Greece in favour of Ellinikos Xrysos SA (Case 2011/452/EU), OJ L 193, 23.7.2011, p. 27–47. 64 Case 100/16 P Ellinikos Chrysos AE Metalleion kai Viomichanias Chrysou v Commission, EU:C:2017:194, paragraph 29. 65 Ibid. paragraph 32. 66 Ibid. paragraph 34. 67 Ibid. paragraph 54. 68 Case C-300/16 P Commission v Frucona Košice, EU:C:2017:706. 69 Ibid. paragraph 26. 70 Ibid. paragraph 29. 71 Ibid. paragraph 69. 72 Ibid. paragraphs 77 and 78. 73 Ibid. paragraph 81. 74 Case T-125/12 Viasat Broadcasting UK v Commission, EU:T:2015:687. 75 Commission Decision of 20 April 2011, on the measures implemented by Denmark (C 2/03) for TV2/Danmark (Case 2011/839/EU), OJ L 340, 21.12.2011, p. 1–31. 76 Case C-280/00 Altmark Trans and Regierungspäsidium Magdenburg, EU:C:2003:415. 77 Case T-219/14 Regione autonoma della Sardegna v Commission, EU:T:2017:266. 78 Case C-660/15 P Viasat Broadcasting UK v Commission, EU:C:2017:178, paragraph 35. 79 Case T-219/14 Regione autonoma della Sardegna v Commission, EU:T:2017:266. 80 Under article 2246 of the Italian Civil Code, the shareholder of a company whose capital has been reduced by more than a third is bound to recapitalise the company. 81 Case C-33/14P Mory and Others c. Commission, EU:C:2015:609, paragraphs 57 and 62. 82 Case T-219/14 Regione autonoma della Sardegna v Commission, EU:T:2017:266, paragraph 60. 83 Ibid. paragraph 105. 84 Ibid. paragraph 108. 85 Ibid. paragraph 184. 86 Ibid. paragraph 197. 87 Case C-228/16 P DEI v Commission, EU:C:2017:409. 88 Ibid. paragraph 38. 89 Ibid. paragraph 39. 90 Ibid. paragraph 43. 91 As regards tax rulings and in particular when it comes to transfer pricing, the OECD guidelines would still provide fpr guidance and limitations. 92 Agreement on Subsidies and Countervailing Measures, 1994, Annex 1A to the Marrakesh Agreement Establishing the World Trade Organisation, 1867 UNTS 14. 93 According to the SCM Agreement as a subsidy is considered (i) any financial contribution in the form of direct transfer of funds (eg. grants, loans); (ii) government revenue that is otherwise due is foregone or not collected (eg. Tax credits); (iii) provision of goods or services other than general infrastructure etc by a government or any public body, that (iv) confers a benefit. (Full reference: WTO SCM Agreement, Art. 1). 94 Unless they are part of what is defined as prohibited subsidies pertaining to imports and exports. 95 EU Withdrawal Bill Explanatory Notes, par. 87 and following; https://publications.parliament.uk/pa/bills/cbill/2017-2019/0005/en/18005en.pdf. 96 State Aid Scoreboard 2016; http://ec.europa.eu/competition/state_aid/scoreboard/index_en.html. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of European Competition Law & Practice Oxford University Press

Key Developments in State Aid Law in 2017

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Abstract

Key Points The European Commission enforcement policy regarding national tax rulings and restructuring aid measures triggered particular media attention due to the financial magnitude of the measures involved. The Court of Justice has rendered several judgments that contain useful clarifications on the notion of aid (i.e. concept of economic activity, concept of State intervention and State resources, distinction between new and existing aid), selectivity, the notion of service of general economic interest as well as on procedural aspects of State aid investigations. The European Commission nearly finalised its State aid modernisation programme through the implementation of an exemption for ports and airports. As part of Brexit discussions, the implications of Brexit on State aid control have attracted significant debate. I. Introduction This survey covers the main developments in European State aid law over the last 12 months. While the list of presented cases is selective, the survey aims at providing an overview on both the Commission’s policy and cases as well as on the decisions delivered by the Court of Justice of the European Union. The first part of this survey focuses on the new legislation prepared by the European Commission in 2017 as part of its State aid modernisation programme, namely, the implementing of an exemption of notification requirements for certain support measures in favour of ports and airports. The second part of this survey focuses on the European Commission’s decisional practice. This section concentrates on tax cases which remained a strong focus of the European Commission’s enforcement policy, as well as rescue and restructuring cases. The third part of this survey discusses a selection of judgments rendered by the Court of Justice of the European Union. Some of the judgments rendered in 2017 contain useful clarifications on the notion of aid (i.e. concept of economic activity, concept of State intervention and State resources, distinction between new and existing aid), selectivity, the notion of service of general economic interest as well as on procedural aspects of State aid investigations. Lastly, on 29 March 2017 the United Kingdom has submitted a notice pursuant to Article 50 TEU regarding its intention to leave the European Union. While the modalities of the UK’s exit and its future relationship with the EU have yet to be agreed, the last part of this survey focuses on the possible impact of Brexit on the State aid policy to be implemented by the United Kingdom post-Brexit. This section describes the possible scenarios that may be envisaged at this stage, including the possibility for the UK to remain a member of the EEA, the withdrawal of such membership and its interplay with WTO rules and, finally, the possibility to implement a domestic State aid control. II. State aid modernisation The State aid modernisation process that was initiated on 8 May 2012 is nearing its conclusion with some residual developments such as the extension of the scope of the General Block Exemption (‘GBER’). The changes reflect the overarching goal of the Commission’s State aid policy to be ‘big on big, and small on small’. On 17 May 2017, after two rounds of consultation launched in 2016, the Commission approved the proposed extended scope of the GBER to ports and airports through Commission Regulation (EU) 2017/1084.1 In the airport sector, public investments for the infrastructure of regional airports (with less than 3 million passengers per year) may be made without prior notification. Up to 75% of infrastructure costs for airports with less than 1 million passengers per year and up to 50% of infrastructure costs for airports with less than 3 million passengers per year are exempted from notification. For maritime ports, public investments of up to €150 million in sea ports2 and of up to €50 million in inland ports3 may be made without prior notification. For these two categories, eligible costs are defined as investments for the construction, replacement or upgrade of port infrastructures, access infrastructure and dredging. In the case of sea ports, up to 100% of the eligible costs where such costs are up to €20 million are exempted from notification and up to 80% of the eligible costs where such costs are above €20 million are exempted from notification. Similarly, no notification is required for up to 60% of the eligible costs where such costs are above €50 million. In the case of inland ports, up to 100% of the eligible costs are exempted from notification where the total envelope is up to €50 million. III. Selected aspects of the Commission’s decisional practice and State aid policy A. Tax As part of its continued focus on tax measures, the European Commission adopted a series of final and procedural decisions in 2017, a selection of which is reported below. Firstly, in July 2017, the Commission adopted two negative decisions requiring Belgium4 and France5 to abolish the corporate tax exemptions granted to their ports. The Commission considered that the corporate tax exemptions granted to Belgian and French ports provide them with a selective advantage. More specifically, in relation to the French scheme, the Commission recalled that the commercial management and the construction of infrastructures are economic in nature, referring to established case law in relation to airports6 and ports.7 The Commission stressed the irrelevance of a series of factors, such as the classification of ports as installations of critical importance at national level,8 or the fact that these ports do not operate on a purely commercial basis. It stated that these elements are insufficient to consider that ports do not constitute economic activities, noting in particular that certain ports realise profits and pay dividends to the State.9 Further, in relation to the existence of an economic advantage, the Commission noted that no correlation could be made between the exemption and potential surcharges generated by the services of general interest that might be fulfilled by ports.10 Further, the Commission declared the measures selective by reference to the relevant taxation system, in the absence of any justification. Regarding the distortive effect of the measures, the Commission noted that while some port operators benefit from a legal monopoly in the offering port services within the port they exploit, such services are at least to a certain extent in competition with those offered in other ports of France and other Member States.11 In both decisions, the Commission classified the measures, which were implemented already in a pre-EU period, as existing aid and thus did not request the recovery of the aid for the past. Rather, it required both Member States to adopt the necessary measures to end these exemptions as of the fiscal year 2018.12 Interestingly, the Commission did not mention explicitly on which ground the measures are to be declared as new aid for the future. These decisions are relevant when looked at in the light of the exemptions put in place in 2017 in relation to ports and airports. The Commission sends a clear message that support to large infrastructure projects in this field will continue to be under the scrutiny of the Commission, unless such measures fulfil the conditions of the newly implemented exemption. Secondly, on 4 October 2017, the Commission adopted a decision in which it declared that the tax benefits granted by the State of Luxembourg constituted illegal aid.13 The Commission concluded that the Luxembourg tax ruling included an unjustified method to calculate taxable profits in Luxembourg and more specifically that the level of the royalty payment from the operating company to its holding company was inflated and did not reflect economic reality.14 On the same day,15 the Commission referred the State of Ireland to the ECJ for failing to recover aid declared illegal in a 2016 decision.16 Finally, in late October 2017, the Commission opened an in-depth investigation into a UK tax scheme for multinational companies.17 The Commission is investigating an exemption implemented in 2013 to the UK’s Controlled Foreign Company rules regarding interest payments received from loans by multinational companies (the ‘Group Financing Exemption’). The UK Group Financing Exemption is suspected to enable multinational companies active in the UK to provide financing to foreign group companies via offshore subsidiaries without paying tax on the profits generated from these transactions. This case will likely raise questions about the enforcement of any potential Commission decision following the exit of the UK from the European Union (see Section V below). B. Restructuring Rescue and restructuring aid has been often referred to as the most distortive type of aid due its interventionist nature, mainly because in the absence of such aid the undertaking in question would have exited the market. Therefore, the main principle governing restructuring aid is the ‘one time last time’ principle, pursuant to which restructuring aid can be granted only once over a period of 10 years. In recent years, the Commission has been very cautious in approving rescue and restructuring aid. This is true in particular for financial institutions, for which rescue measures are subject to approval of the restructuring plan, according to the 2013 Banking Communication.18 A major rescue aid case in 2017 was the approval of rescue aid to Air Berlin. The notified measure consisted of a loan of a maximum of €150 million provided by a German public credit institution, backed by a guarantee by the German State.19 The objective of the loan was to enable Air Berlin to continue to operate during the holiday season (maximum of 3 months) to minimise air transport disruptions and achieve the sale of its assets in an orderly manner. According to the German authorities, such measures would benefit both passengers and staff. Given the strict conditions attached to the loan such as its limited duration and the cease of operations at the end of the set timeframe, the Commission approved that measure.20 An interesting aspect of the notified measure is that the loan would be paid out in instalments, each of which will be subject to Air Berlin demonstrating liquidity shortfall on a weekly basis together with proving that it has no other free liquidity at its disposal exceeding €1 million and that all other liquidity sources have been exhausted.21 Further, the German authorities committed that the loan will either be fully repaid within a period of up to 6 months or a liquidation plan will be put in place.22 On the restructuring side the European Commission approved the restructuring plan notified by the French Authorities for the restructuring of Areva, a group controlled by the French State23 which is active in the nuclear industry. Areva faced financial difficulties over the last 5 years which were partly due to internal business and structural problems and partly due to the overall market situation post-Fukushima. According to the Commission’s guidelines on rescue and restructuring aid,24 the notified restructuring plan should demonstrate how long-term viability will be achieved in a realistic and credible way. The restructuring plan presented by the French Authorities encompassed various divestments and internal financial restructuring measures to restore Areva’s competitiveness. An important factor that led to the Commission’s approval of the aid was that a significant part of the restructuring costs would be financed through Areva’s own contribution.25 The main divestment measure concerned the Group’s nuclear reactor business segment, a plan that would in turn enable Areva to focus on the more profitable business of nuclear fuel cycle, namely the production of electricity from uranium in nuclear power reactors. Areva’s reactor business would be transferred to the French energy incumbent EDF. The payment of the aid is conditional upon the French Nuclear Safety Agency’s positive assessment of the Flamanville III project and clearance of the transaction with EDF pursuant to the EU Merger Regulation.26 A Finnish nuclear power company has recently brought before the General Court an action against the State aid decision.27 In June 2017, the Commission completed its investigation on the measures in favour of TRAINOSE and OSE, fully-state owned companies active in the provision and infrastructure management of passenger and freight services in Greece. With its decision28 the Commission approved the notified measures as compatible aid under Article 107(3)(b) TFEU. That decision is linked to the Greek privatisation programme pursuant to the Economic Adjustment Programme’s Memorandum of Understanding on financial assistance to the Hellenic Republic.29 The notified measures consist of a debt cancellation, the provision of annual grants for losses stemming from activities related to rail infrastructure and the transfer of OSE employees to other public sector employers.30 The Commission first assessed whether the measures qualified as State aid, and more specifically regarding the existence of a distortion of competition and effect on trade. The Commission concluded that due to OSE’s legal monopoly status in the management of rail infrastructure there is no competition on the market for the provision of rail network management in Greece and that those services are also not in competition with other services.31 Subsequently, the Commission went on to examine whether the envisaged support measures would have any spill-over effects on other related rail infrastructure markets. In this regard the Commission found that as of 22 October 2014 OSE’s entire non-rail infrastructure related activities were officially transferred to separate legal entities, while the separation of non-rail infrastructure management activities was completed in 2013.32 Hence, any public funding granted to OSE after that timeframe as part of any of the three notified measures does not constitute State aid within the meaning of 107 (1) TFEU. For the parts of the measures implemented prior that timeframe the Commission found that they were in line with the State aid rules. In particular, the debt cancellation measure and part of the grants aiming to offset losses do not qualify as State aid insofar as they have been implemented after 22 October 2014. Equally, the Commission concluded that the transfer of infrastructure employees did not create any spill-over effects liable to distort competition following the separation of non-rail infrastructure management activities from OSE in 2013, and thus State aid could be excluded.33 For grants payments implemented by Greece between 2011 and 22 October 2014 as well as for the transfer of maintenance employees between 2011 and 2013, the Commission confirmed that they did constitute State aid, but ultimately declared their compatibility with the internal market.34 IV. European Court cases This section discusses a selection of the key judgments rendered by the Court of Justice of the European Union over 2017. The judgments cover the following aspects: the concept of undertaking and economic activity; the concept of State intervention and State resources; the distinction between new and existing aid, the notion of selectivity and advantage, the notion of service of general economic interest, and State aid procedure. A. Concept of undertaking and economic activity 1. Case C-74/16—Congregación de Escuelas Pías Provincia Betania In a judgment of Grand Chamber dated 27 June 2017, the ECJ answered a request for a preliminary ruling in the context of proceedings between the Congregacion de Escuelas Pias Provincia Betania (‘Congregacion’) and the Municipality of Getafe concerning the latter’s refusal of the Congregacion’s application for a refund of the amount it had paid in respect of the tax on construction, installation and works (‘ICIO’).35 The ICIO is an urban property tax that was put in place in 1988 regarding the building, installation, or construction works for which a permit is required. By an order of 5 June 2001, the Spanish Ministry of Finance granted the Catholic Church full exemption from ICIO in relation to buildings belonging to the Church. The referring Court decided to stay the proceedings and refer to the ECJ the question as to whether the fact that the exemption at issue relating to works on buildings intended to be used for economic activities that do not have a strictly religious purpose constitutes illegal State aid. The present case contains an interesting examination of the boundaries of the notion of economic activity and further refines the regime applicable to infrastructures of mixed-usage. Regarding the concepts of ‘undertaking’ and ‘economic activity’, the ECJ recalls that they cover any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed. The fact that the activity is carried out by a religious community does not preclude the application of the rules of the Treaty, including those governing competition law. The ECJ recalled that any activity consisting of offering goods or services on a given market is an economic activity. The fact that the offer of goods or services is made on a not-for-profit basis does not prevent the entity which carries out those operations on the market from being considered an undertaking, since its offer is in competition with those of other operators which do seek to make a profit. Services normally provided for remuneration are services that may be classified as economic activities. The ECJ also referred to the concept of ‘services’ within the meaning of Article 57 TFEU, referring to the judgments Schwarz and Gootjes-Schwarz36 and Commission v Germany37 in which it considered that courses provided by educational entities financed essentially by private funds, notably by third parties, constitute services. However, according to the ECJ, the same cannot be said of courses provided by entities which are integrated into a system of public education and financed, entirely or mainly, by public funds. Indeed, referring to the same case law, the ECJ stated that in establishing and maintaining such a system of public education, which is, as a general rule, financed from public funds, the State is not seeking to engage in lucrative activity, but is fulfilling its social, cultural and educational obligations towards its people.38 The ECJ explained that in that context, it is possible that a single establishment may carry out a number of activities, both economic and non-economic, provided that it keeps separate accounts for the different funds it receives so as to exclude any risk of cross-subsidisation of its economic activities by means of public funds received for its non-economic activities.39 Consequently, the ECJ considered that, subject to the referring Court’s further examination, the Congregación’s educational activities that are subsidised by the Spanish State could not seemingly be classified as economic. By contrast, the ECJ stated that the Congregación’s educational activities that are not financed by the Spanish State, corresponding to early-years teaching, extracurricular activities and post-compulsory education, could be classified as economic activities.40 Regarding the concept of selectivity, the ECJ noted that ICIO is a tax that is normally payable by all taxpayers who carry out construction or renovation works to which that tax applies and that the exemption at issue would have the effect of mitigating the charges that are included in the Congregación’s budget. Consequently, a tax exemption of that nature would confer an economic advantage on Congregación. Furthermore, the ECJ noted that the order of 5 June 2001 targeted specific religious territorial units, orders, congregations and institutes which are entitled to full and permanent exemption from ICIO. As a result, it concluded that the order was not a general measure applicable without distinction to all economic operators but was rather a measure that was prima facie selective.41 The ECJ finally checked whether the differentiation at issue arose from the nature or the overall structure of the system of which they are part, which, according to the established case law, is not encompassed in the notion of State aid. The ECJ noted that there was nothing in the documents before the ECJ which suggested that the tax exemption provided for by the order of 5 June 2001 derived directly from the founding or guiding principles of the Kingdom of Spain’s tax system or that it was necessary for the functioning and efficiency of that system.42 B. Concept of State intervention and State resources 1. Case C-150/16—Fondul Proprietatea In a judgment dated 18 May 2017, the ECJ answered to a request for a preliminary ruling in the context of proceedings between Fondul Proprietatea SA (‘Fondul’) and Complexul Energetic Oltenia SA (‘CE Oltenia’) concerning the annulment of the decision of the General Meeting of shareholders of CE Oltenia to accept and transfer in lieu of payment with respect of its claim against Electrocentral Grup SA (‘Electrocentral’). CE Oltenia is a company which is majority owned by the Romanian State and which was owed a debt by Electrocentrale, a company which is wholly owned by the Romanian State.43 On 27 September 2013, the General Meeting of shareholders of CE Oltenia approved the transfer to that company of a thermal power plant, owned by Electrocentrale, as a transfer in lieu of payment. Following an application for a declaration of invalidity of that decision, the Court of Appeal of Craiova decided to stay the proceedings and to refer to the ECJ the question as to whether the decision of a company of which a Member State is the main shareholder to accept a transfer in lieu of payment of an asset, which is the property of another company in which the State is the sole shareholder, in order to extinguish a debt, and pay an amount corresponding to the difference between the estimated value of that asset and the amount of that debt, is liable to constitute State aid within the meaning of Article 107 TFEU. The present case largely constitutes a mere reminder of the boundaries concept of aid, and for the purposes of this review, the developments regarding the usage of State resources are summarised. In doing so, the ECJ, in essence, recalls the judgment of 16 May 2002, France v Commission.44 In relation to the condition that the measure must be financed by the State through State resources, the ECJ recalled that the concept of State aid covers all the financial means by which the public authorities may actually support undertakings, irrespective of whether or not those means are permanent assets of the public sector. Even if the sums corresponding to the measure in question are not permanently held by the Treasury, the fact that they constantly remain under public control, and are therefore available to the competent national authorities, is sufficient for them to be categorised as State resources. First, the ECJ recalled that the State is able, by exercising its dominant influence over public undertakings, to direct the use of their resources in order to finance an advantage in favour of other undertakings.45 Second, regarding the condition that an aid measure taken by a public undertaking must be attributable to the State, this can be inferred from a set of indicators arising from the circumstances of the case and the context in which that measure was taken.46 The ECJ recalled that, the fact that the body in question could not take the contested decision without taking account of the requirements of the public authorities, or the fact that those undertakings through which the measure had been granted had to take account of directives issued by State agencies, act as relevant factors. In addition, the ECJ recalled that, in line with the previous decisions,47 other factors might be relevant, in particular (i) the integration of the measure into the structures of the public administration, (ii) the nature of the undertaking’s activities and the exercise of the latter on the market in normal conditions of competition with private operators, (iii) the legal status of the undertaking, (iv) the intensity of the supervision exercised by the public authorities over the management of the undertaking, or (v) any other indicator showing, in a particular case, an involvement of the public authorities in the adoption of a measure or the unlikelihood of them not being involved, having regard also to the compass of the measure, its content or the conditions it contains.48 The ECJ also recalled that the fact that a public undertaking has been constituted in the form a capital company under ordinary law cannot exclude the possibility of an aid measure taken by such a company being imputable to the State. 2. Case C-329/15—ENEA In a judgment dated 13 September 2017, the ECJ answered a request for a preliminary ruling recalling the conditions under which a measure may be considered attributable to the State, and more specifically in the context of support schemes for electricity generation, and in the present case, regarding electricity produced by cogeneration, i.e. the simultaneous production of electricity and heat both of which are used.49 The Polish State established an obligation to purchase energy produced by cogeneration at a minimum of 15%, with the production of heat and the setting up of a maximum price for the sale of electricity to final users. The president of the Office for the regulation of energy in Poland had the power, when approving the tariff charged by electricity companies, to fix the price of electricity produced by cogeneration at a level that he considered reasonable when calculating the maximum price that could be charged when selling electricity to end users. A financial penalty was imposed on ENEA, a private company which is wholly owned by the Polish State, for not having fulfilled its quota obligation to purchase electricity produced by cogeneration. It then brought an action at national level which was dismissed. On appeal, it claimed that the obligation to purchase electricity produced by cogeneration constituted unlawful State aid, given that it had not been notified to the European Commission. The ECJ considered that Article 107(1) TFEU must be interpreted as meaning that a national measure, placing an obligation on both private and public undertakings to purchase electricity produced by cogeneration, does not constitute intervention by the State or through State resources. While the ECJ considered that the obligation to supply electricity produced by cogeneration was attributable to the State,50 it did not meet the criterion for an intervention. The ECJ recalled that this condition is satisfied not only where aid is granted directly by the State but also where it is granted by public or private bodies established or designated by the State with a view to administering the aid. However, if companies are not appointed by the State to manage a State resource, but are merely bound by a purchase obligation using their own financial resources, this would not meet the relevant test. In the present case, in certain circumstances electricity suppliers purchased electricity produced by cogeneration at a higher price than that charged to end users, which resulted in extra costs for suppliers. Consequently, given that those extra costs cannot be passed on entirely to end users and are not financed by a compulsory contribution imposed by the State or as an offsetting mechanism, the ECJ concluded that the suppliers were not appointed by the State to manage a State resource, but were funding a purchase obligation imposed on them by having recourse to their own financial resources.51 ENEA and the Commission argued that most of the undertakings bound by the purchase obligation were public undertakings governed by private law. Therefore, the obligation could be regarded as being financed through State resources. The ECJ recalled that, according to settled case law,52 the resources of public undertakings may be regarded as State resources where the State is capable, by exercising its dominant influence over such undertakings, of directing the use of their resources in order to finance advantages to the benefit of other undertakings. The mere fact that the State held the majority of the capital in some of the undertakings subject to the purchase obligation does not lead to the conclusion that it exercised a dominant influence which enabled it to direct the use of their resources. It appears that the purchase obligation applied equally to all electricity suppliers, regardless of whether their capital was predominantly held by the State or by private operators. Further, the ECJ specified that the fact that the measure is attributable to the Member State concerned does not mean that it may be inferred that this Member State exercises a dominant influence over an undertaking in which it is the majority shareholder.53 There is nothing in the State’s legislative conduct suggesting that it exercised such influence in its capacity as majority shareholder in an undertaking. C. Distinction between new and existing aid 1. Case C-467/15P—Commission v. Italy A sufficiently broad interpretation of the concept of ‘new aid’ is key in ensuring the effectiveness of State aid since any alteration made to an existing aid scheme may put in question the scheme as a whole. The Court in a judgment of 25 October 2017 had the opportunity to stress this principle and stated that ‘if a Member State makes an alteration to an existing aid scheme in breach of an authorisation condition for that scheme, that Member State will have no guarantee that the authorised aid scheme is not affected by that alteration and that the advantages granted on the basis of that scheme will therefore be retained’.54 The ECJ set aside a judgment by which the General Court partially annulled a Commission decision dated 11 January 2012 (‘the contested decision’) declaring the deferral of the payment of a milk levy as unlawful aid. More specifically, the case regards amendments put in place by the Italian authorities in 2010 (‘legislative alteration’), in relation to a levy owed to the European Union by Italian milk producers for exceeding milk quotas through (i) a system of staggered payments by which the amount of the additional levy born by the Italian Republic would be fully repaid to it by milk producers without interest, in the form of annual instalments over a period of up to 14 years and (ii) a deferral payment, by which the Italian authorities delayed by 1 year the payment of the amounts initially due on 31 December 2010. A Council decision of 2003 had initially authorised the Italian authorities to allow milk producers to repay their debt by way of deferred payment over a number of years without interest, notably subject to the condition that milk producers repay in full their debt to the Italian Republic in yearly instalments of equal size and to do so over a period not exceeding 14 years starting from 1 January 2004. In the contested decision, the Commission considered that the two measures at issue constituted new and unlawful aid and ordered their recovery together with interest. The present judgment offers interesting developments in the context of the second ground of appeal by which the appellant claimed that the General Court wrongly classified the measures as existing aid. The ECJ started by examining whether the deferral payment was made in compliance with the Council decision and notes that such measure did not take into account the conditions under which interest-free loans granted by the Italian Republic were to be reimbursed in yearly instalments of equal size. Consequently, the Court considered that the legislative alteration at issue had the effect of transforming the aid scheme authorised by the Council decision into new and unlawful aid.55 The Court noted that Article 1(c) of Regulation No 659/1999, defining the concept of ‘new aid’ is established in broad terms, and is thereof ‘capable of covering not only the alteration itself, but also the aid concerned by that alteration’.56 The ECJ further noteed that the deferral payment does not constitute an alteration of a purely formal or administrative nature, nor can it be qualified as an increase in the original budget of the aid scheme. The Court considered that the measure was implemented in breach of the authorisation condition governing the aid repayment authorised exceptionally by the Council under the third subparagraph of Article 108(2) TFEU. Further, the Court considered that the case law relied on by the Italian Republic in support of its arguments was not relevant to case at hand. First, the Court stated that it was apparent from the judgment Heinken Brouwerijen57 that, where the initially notified scheme has in the meantime undergone an alteration of which the Commission has not been informed, the implementation prohibition of Article 108(3) TFEU is fully applicable, unless that alteration in fact constitutes a distinct aid measure which should be assessed separately. Secondly, in the judgment HGA and Others v Commission,58 the Court examined the issue of whether the change made to an original aid scheme, in breach of the approval conditions, constituted an alteration of existing aid, thereby giving rise to new and unlawful aid. It did not, however, examine the effects of that alteration on the original aid scheme. The ECJ concluded that the General Court in fact required the Commission to establish that the alteration to the existing aid affects the very substance of the pre-existing measure in order for it to be classified as new aid together with the existing aid to which that alteration relates. The Court considered that in doing so, the General Court misconstrued the concept of new aid and therefore committed an error of law. D. Selectivity and advantage 1. Case C-606/14 P Portovesme Srl v Commission 2016 saw a number of relevant decisions regarding the notion of selectivity and advantage, and in 2017 there were again a couple of noteworthy judgments in this regard. In a judgment dated 1 February 2017, the ECJ dismissed in its entirety the action brought by Portovesme seeking the annulment of the General Court’s judgment59 regarding a Commission decision in relation to reduced electricity tariffs introduced by the Italian State. In 2011, the Commission adopted a decision which declared the notified Italian measures and the aid granted through a ministerial decree to be incompatible with the internal market. For the latter, the General Court also ordered its recovery. Both measures related to the prolongation of existing measures. The judgment reiterates that national measures designed to compensate undertakings for the loss they incur due to their establishment in a specific region of a Member State may constitute a selective advantage, including when the said measures apply to a localised part of the Member State. Moreover, the Court recalled that the objective of the measure at stake cannot be taken into account when assessing the existence of the aid but rather when assessing its compatibility.60 Portovesme raised seven pleas in law, four of which relate to the assessment of the existence and compatibility of the aid and only two of them were found—at least partly—admissible. Within that context, the ECJ noted that the General Court is not bound to deliver its reasoning by addressing exhaustively and one by one all the points raised by the parties, provided that the reasons for which a given decision was adopted are sufficiently clear and complete.61 That is important not only for the interested parties but also for the judicature when exercising its control. By way of example as to how the implicit nature of the Court’s reasoning may nonetheless be detailed enough for the above purposes, the ECJ noted that reference to high electricity consumption inherent in Portovesme’s activity supported the conclusion that it had benefited from preferential tariffs. 2. C-100/16 P Ellinikos Chrysos AE Metalleion kai Viomichanias Chrysou v Commission In a judgment rendered on 9 March 2017, the ECJ dismissed an appeal lodged by Ellinikos Chrysos AE Metalleion kai Viomichanias Chrysou against the General Court’s decision62 which upheld the respective Commission decision.63 With the latter, the Commission found that the sale of the Cassandra mines from the Hellenic Republic to Ellinikos Chrysos was made at a price below cost adding up to the tax exemption relating to this transaction which qualified as an additional element of aid. Subsequently, the Commission had ordered the recovery of the aid. In essence, the appellant disputed the assessment of the amount of the advantage granted as a result of the transfer of the mines and land in Cassandra. That assessment was made on the basis of the economic value of the mines for which the Commission mainly relied on an expert report.64 In this respect, the Court clarified that the absence of infrastructure and mining permits does not affect the existence of the mines’ positive value. Furthermore, the Court recalled that the General Court is not under an obligation to refer exhaustively and one-by-one to all the arguments raised by the parties, as long as its implicit reasoning sufficiently allows the parties to understand the reasons for dismissing their arguments and the ECJ to perform its review.65 In this regard, the Court found that the General Court infringed that obligation when rejecting the applicant’s argument relating to the purpose for which that expert report was granted.66 However, the ECJ reiterated that since the appellant does not claim any manifest error of assessment or distortion of facts or evidence, it cannot uphold this ground of appeal. In this judgment, the Court made use of its competence under Article 61 of the Statute of the Court, pursuant to which it may give a final judgment in a matter after setting aside the judgment of the General Court. That final judgment was given in respect of the suitability of the said expert report to evaluate the mines, given that it was originally produced to advise the Board of Directors of European Goldfields on the potential acquisition of additional shares of Ellinikos Chrysos.67 In this regard, the Court stressed that as long as the credibility or objectivity of such a report is not questioned, the purpose for which it has been created does not influence its value. 3. Case C-300/16P—Commission / Frucona Košice In a judgment dated 20 September 2017, the ECJ dismissed the appeal lodged by the Commission seeking to set aside a judgment of the General Court which annulled its decision declaring as illegal State aid a 65% remission on excise duties by a local tax office.68 The present case recalls the boundaries of the private creditor test and the legal standard incumbent upon the Commission to assess all the relevant factors. The ECJ first started by recalling the boundaries of the notion of the private creditor test, stating, in line with the Advocate General, that nothing prevents the recipient of the aid from invoking the applicability of that test, in which case it is for the Commission to assess whether the test needs to be applied and, if so, to apply it.69 Secondly, as regards the relevance of the subjective state of mind, the ECJ noted that the starting point for determining whether the private operator test is to be applied must be the economic nature of the Member State’s action, irrespective of the capacity under which the Member State thought it was acting or which alternative courses of action it considered before adopting the measure in question. The Commission’s assessment cannot be limited to the options that the competent public authority actually took into consideration, but must necessarily cover all the options that a private creditor would reasonably have envisaged in such a situation.70 Thus, the General Court did not err in law when it stated that the Commission could not make a distinction when applying the test based on the various alternatives to the measure at issue. According to the Commission, the General Court created a new requirement that the Commission has to reconstruct the behaviour of the ideal, rational and fully informed hypothetical private creditor by seeking any possible information and evidence. The ECJ rejected the Commission’s reasoning as being based on an incorrect assessment of the private creditor test. The Court noted, first, that the General Court indicated that the assessment of the test must be made in relation to a situation as close as possible to that of the public authority in question. Second, it noted that the General Court pointed out the evidence that the institution must, where appropriate, obtain and take into consideration, as well as the general limits of its investigatory obligations.71 Concerning the General Court’s finding of fact that the evidence in the administrative file did not substantiate to the requisite legal standard the Commission’s assessment of the liquidation factors and that it should have sought to obtain additional information in order to substantiate its conclusions, the ECJ considered that these assessments in no way exceed the limits of judicial review of a manifest error of assessment. The ECJ pointed out that the General Court merely noted the internal contradictions of the decision at issue and made findings of fact. According to these none of the evidence in the administrative file was able to substantiate the liquidation factors used by the Commission.72 Finally, the General Court found that the Commission had failed to obtain information on the anticipated duration of the tax execution procedure and to obtain information concerning the costs that such a procedure might generate. Such considerations, in so far as they concern the information that normally a prudent and diligent private creditor in a situation as close as possible to that of the local tax office could not ignore, are capable, in themselves of justifying the General Court’s decision that the Commission failed to take into consideration the relevant information.73 E. Services of general economic interest (‘SGEI’) 1. C-660/15 P Viasat Broadcasting UK Ltd v Commission In a judgment dated 8 March 2017, the ECJ dismissed an appeal brought by Viasat Broadcasting (‘Viasat’) seeking to set aside a judgment of General Court74 upholding the respective Commission Decision.75 With the latter the Commission found that the measures in question as adopted in favour of TV2/Danmark (‘TV2’) by the Danish Authorities constituted State aid as they failed to meet the second and fourth condition of the Altmark judgment76 criteria, yet the aid was compatible with the internal market. Viasat, a commercial broadcasting company active in the Danish market and direct competitor of TV2 unsuccessfully sought the annulment of that decision before the General Court. In its appeal of the General Court’s judgment, Viasat claimed that the Commission is required when making its assessment under 106(2) TFEU to examine whether the Altmark conditions are satisfied. In this respect the ECJ upheld the ruling of the General Court by reaffirming that the examination of the Altmark case law occurs upstream, namely when the measure is assessed in order to determine whether it is to be classified as aid or not. Further, similarly to the statement made in the case Regione autonoma Della Sardegna77 (see below) and in line with established case law, the General Court recalled that the assessment of the Altmark conditions is redundant once the Commission has classified a measure as aid.78 2. Case T-219/14—Regione autonoma della Sardegna In a judgment dated 6 April 2017, the General Court dismissed the action for annulment of a Commission decision which declared aid measures granted by the Autonomous Region of Sardinia (‘the RAS’) to the maritime company Saremar, a former member of the bankrupt Tirrenia group, in the form of a public service compensation and a capital increase, as incompatible aid.79 Saremar is a company that ensured a public service of maritime cabotage in the Sardinian region. Its capital was transferred free of charge to the RAS with a view to privatise it. Such process was only completed in July 2012 when a consortium of private ship-owners operating on the same routes acquired Saremar. In 2011, the RAS adopted a regional decision requesting Saremar to examine the viability of a maritime cabotage service on three routes and defined a series of measures to be taken in order to compensate for the losses suffered by Saremar in connection with Tirrenia’s bankruptcy proceedings. Saremar had suffered a record loss as a consequence of devaluating 50% of its claim against Tirrenia’s bankruptcy. The RAS decided (i) to cover that loss by reducing Saremar’s capital and (ii) to grant Saremar a capital increase subsequently to the capital reduction.80 In a second regional decision adopted in late 2011, the RAS ordered Saremar to activate the mixed route Olbia-Civitavecchia, as a result of the analysis of Saremar which indicated that only that route enabled the achievement of financial balance. The European Commission adopted a decision concerning aid measures in favour of Saremar granted by RAS on 22 January 2014 against which the RAS on 2 April 2014 brought an action for annulment to the General Court. This judgment contains relevant developments on the notion of interest in bringing proceedings. In particular, the Commission submitted that, given that Saremar was in liquidation, the RAS no longer had any interest in bringing proceedings. The Court recalled Mory and Others v. Commission81 in which it was stated that the interest in bringing proceedings must continue until the final judgment, failing which there will be no need to adjudicate. Such an interest requires that the annulment of that act must be capable, in itself, of having legal consequences and that the action may therefore, through its outcome, procure an advantage to the party which brought it. An applicant’s interest in bringing proceedings must be vested and current and may not concern a future and hypothetical situation. In the present case, the General Court considered that despite Saremar being placed under liquidation, the RAS had not lost its interest in bringing proceedings. First, the contested decision continues to produce legal effects affecting the RAS, which have not become obsolete merely because Saremar has been placed under liquidation. As a result of the contested decision, the RAS is prevented from disbursing to Saremar the non-executed aid measures (capital increase). Second, regarding the already disbursed aid, the mere fact that the undertaking is in liquidation does not call into question the principle that unlawful aid must be recovered.82 On substance, the judgment essentially focuses on the second Altmark condition and recalls that that condition relates to the need of establishing beforehand, in an objective and transparent manner, the parameters on the basis of which the compensation is calculated, in order to prevent the existence of a selective advantage. The General Court noted that in the present case, as observed by the Commission, none of the regional decisions by which the RAS mandated Saremar to operate routes to and from the mainland, provided either expressly or implicitly for the payment of public service compensation. All those decisions were based on the postulate that the performance of those public service obligations had to be done in accordance with market conditions and thus in a manner that safeguards the activity’s viability without recourse to public service compensation paid by the RAS.83 As a result, since no provision was made for such compensation beforehand, it could not be calculated on the basis of objective and transparent parameters defined beforehand.84 It was only within the framework of the 2012 Regional Law that the RAS took the decision to pay Saremar a subsidy to cover potential losses arising from that service. The General Court considered that given the rejection of this part of the plea, the other parts of the second plea are ineffective, due to the fact that the Altmark conditions are cumulative and independent of one another. In its fourth plea, in essence, the complainant claims that the Commission was wrong in considering that since Saremar was a company in difficulty, the compatibility of the compensation should be assessed in light of Article 107(3)(c) TFEU, rather than Article 106(2) TFEU. The General Court considered that the Commission explored for the event where Saremar would not be held to be in difficulty, whether the disputed compensatory measure could be compatible with Article 106 (2) TFEU in light of the criteria of the 2011 SGEI Framework and concluded that it could not. Consequently, even if the Commission had not examined the compatibility of that measure in light of Article 107(3)(c) TFEU and the Guidelines on aid for rescuing and restructuring, it would have in any event classified it as incompatible under Article 106(2) TFEU. Further, the General Court considered that the complainant failed to demonstrate the existence of a violation of article 106(2) TFEU. It first observed that the concept of firm in difficulty is an objective notion that must be assessed solely in light of the specific indices of the financial and economic situation of the undertaking in question.85 Consequently, the underlying reason for the undertaking’s losses, in particular those associated with the performance of public service obligations, is not a decisive factor for determining whether or not the undertaking is in difficulty. Secondly, in stating in paragraph 9 of the 2011 SGEI Framework that the aid assessment to an SGEI provider in difficulty is governed by the Guidelines on aid for rescue and restructuring, the Commission did not place an unlawful restriction on the scope of Article 106(2) TFEU.86 F. Procedure 1. Case C-414/15 P—Stichting Woonlinie In a judgment dated 15 March 2017, the ECJ commented on the scope of the General Court’s powers of review. The ECJ set aside the order of the General Court dated 12 May 2015 by which the General Court dismissed the action for partial annulment lodged by Dutch housing corporations against a Commission decision declaring an existing scheme for housing corporations as no longer compatible with the common market. Following a notification by the Dutch authorities of a general scheme of State aid for housing corporations, the Commission classified this scheme as existing aid. The Dutch authorities subsequently withdrew their notification. The Commission issued a letter to the Dutch authorities expressing doubts as to its compatibility with the internal market. On 3 December 2009, the Netherlands accepted the Commission’s proposed appropriate measures to ensure the compatibility of the scheme with State aid law and more specifically with Article 106(2) TFEU, namely by (i) limiting social housing to a clearly defined target group of underprivileged individuals or socially disadvantaged groups, (ii) carrying out commercial activities on market terms with public service activities and commercial activities having separate accounts and being audited and (iii) adapting the supply of social housing to the demand from underprivileged individuals and socially disadvantaged groups. The Commission had classified the measures included in the general scheme as existing aid, due to its creation before the Treaty of the European Communities entered into force in the Netherlands. Further, the Commission referred to the commitments undertaken by the Dutch authorities to amend the functioning of the scheme by implementing those commitments through a new ministerial decree and a new Housing Act. On 30 August 2010, the Commission adopted a decision amending the contested decision in which it concluded that one of the measures referred into the latter, namely the right to obtain a loan from the Bank Nederlandse Gemeenten, could not be regarded as being compatible with State aid law. The ECJ reiterated that, regarding an existing aid scheme, in adopting a decision pursuant to Article 18 in conjunction with Article 19(1) of Regulation No 659/1999, the Commission accepts the State’s commitments as being capable of addressing its concerns regarding the compatibility with the internal market of the existing scheme examined, and concludes the examination procedure provided for in Article 108(1) TFEU. Such a decision necessarily supposes that the Commission assessed whether the aid scheme in question was compatible with the internal market and, if it was not or no longer, consequently, appropriate measures were necessary in order to remedy that incompatibility. The assessment carried out and the derived conclusion cannot be excluded from review by the EU judicature without undermining the right to effective judicial protection of the beneficiaries of the existing aid scheme. The Court further explained that the right to effective judicial protection of the beneficiaries of an existing aid scheme therefore implies that, in the case of an action brought against a decision adopted under Article 18 of Regulation No 659/1999 in conjunction with Article 19(1) of that regulation, those beneficiaries may also contest the Commission’s assessment of that scheme, its conclusion of incompatibility and the measures necessary to remedy that incompatibility. As a result, by rejecting the appellant’s arguments claiming that the General Court’s powers of review did not extend to the Commission’s examination of the aid scheme before the commitments given by the Dutch authorities and that that examination did not form part of the decision at issue, the General Court erred in law. The fact that assessment is set out not in the decision at issue but in the letter pursuant to Article 17 with which the Commission informs the Member State of its preliminary view regarding an existing aid measure is irrelevant. According to settled case law, intermediate measures whose aim is to prepare for the final decision do not, in principle, constitute acts which may form the subject matter of an action for annulment, if it is established that the illegality of that measure can be raised against the final decision. In the present case, the Court noted that the Article 17 letter constituted a first step in the preparation of the decision at issue. As a result, the appellants may not be prevented from invoking the lawfulness of the assessment contained in that letter in support of the action against the final decision. The Court further specified that such a finding is not called into question by the Commission’s argument relating to the conclusion that the existing aid scheme is incompatible with the internal market. The Court conceded that, owing to the cooperation mechanism between the Commission and the Member States established by Article 108(1) TFEU, on which the system for reviewing existing schemes is based, proceedings brought under that provision do not lead to a formal finding that an aid scheme is incompatible with the internal market. However, once the Commission records the acceptance of appropriate measures by the Member State concerned, its initial conclusion that the existing aid scheme is incompatible with the internal market and the correlated proposal of appropriate measures, produce the same legal effect as those of a formal finding. Finally, the Court specified to which extent the appropriate measures may have a binding effect and produce legal effects, in accordance with established case law. The appropriate measures that the Commission proposes under Article 108(1) TFEU, in so far as they are accepted by a Member State, are binding. However, that acceptance produces legal effects only if it is notified to the Commission and the latter records and informs the Member State thereof. As a result, the General Court erred in law in rejecting as manifestly unfounded the appellant’s arguments putting forward that the Commission had acted ultra vires in requiring appropriate measures and rendering them binding in the decision at issue. 2. Case C-228/16 P—DEI v Commission In a judgment dated 31 May 2017, the ECJ set aside the order dated 9 February 2016 by which the General Court held that there was no longer any need to give a decision on the action for annulment of the European Commission letter dated 12 June 2014, rejecting DEI’s complaints concerning State aid.87 The ECJ noted that the 2015 decision merely confirms the 2014 decision since, following a review of the information provided to it, the Commission simply reiterated its refusal to open a formal examination procedure without, in fact, adding anything new. Consequently, the 2014 decision was not withdrawn by the 2015 decision. Moreover, accepting that the adoption by the Commission of a new decision would mean that it would be unnecessary to adjudicate on an action for annulment brought against the initial decision, would impede the effectiveness of the judicial review. It would then be sufficient for the Commission to decide to take no further action on a complaint and then, after that party brought an action, to reopen the preliminary examination stage and repeat those operations as many times as are necessary in order to avoid any judicial review of its actions.88 The same is true, a fortiori, where the Commission, during the proceedings before the General Court concerning an action for annulment of a decision to take no further action on a complaint, asks that those proceedings be stayed to allow it to re-examine the case, then purely and simply confirms its initial decision.89 It could only be different if the Commission withdrew a decision to take no further action on a complaint in order to remedy the illegality affecting that decision, while stating the nature of the illegality vitiating that decision. Nonetheless, in any event, it is not apparent from the 2015 decision that the Commission sought to withdraw the 2014 decision in order to remedy the illegality vitiating that decision. As a result, the ECJ considered that the General Court wrongly held that the 2015 decision had formally replaced the 2014 decision and that, accordingly, the action had become void, such that there was no longer any need to rule in that dispute.90 V. Brexit and State Aid The last part of this survey provides a short overview on the debate about the impact of Brexit on State aid law although it must be noted that the impact Brexit may have on EU State control within the UK remains highly speculative at this stage. EU State aid rules will cease to apply to the UK only after its withdrawal from the EU has become effective. Technically, and subject to international trade rules, the absence of any EU scrutiny on public money spending would mean that the UK Government would have a greater freedom in granting aid to UK businesses and possibly adopting more protectionist measures. These might also include advantageous fiscal measures or a less stringent approach to tax rulings91—which have been recently at the heart of State aid control—to attract more businesses in the UK. Yet, unlimited freedom on granting aid does not seem to be the most likely scenario. This is particularly relevant since the UK, even after the completion of Brexit, will still be a member of the World Trade Organisation (‘WTO’), albeit that its membership terms currently are the EU’s terms which have to be re-negotiated for the UK. The Agreement on Subsidies and Countervailing Measures (‘SCM Agreement’)92 will still apply to the UK following Brexit. Together with the EU State aid control, the WTO rules on subsidies are the two main international subsidy control pillars. Both systems largely rely on similar concepts of what constitutes the ‘aid’ or the ‘subsidy’.93 However, these systems also present significant differences. Under EU State aid control, there is a presumption of illegality for the granting of aid unless special circumstances or exemptions apply, while in principle subsidies are allowed under the SCM Agreement94 unless injury is proven. Similarly, EU State control rules apply to both goods and services, while the WTO rules on subsidies apply solely to goods. On a procedural ground, the main differences are that (i) the WTO anti subsidy rules do not impose any procedural requirement, equivalent to prior notification of the measure to the European Commission or standstill obligation and (ii) that any opposition against a favourable measure adopted by a State can only be initiated by another State and not by individuals, as is the case in the EU. Absent an agreement between the EU and the UK about an equivalent to state aid rules in the common interest post-Brexit, the WTO rules will indeed act as a certain safeguard with respect to the future State interventions of the UK authorities. However, such safeguard will be limited compared to that of the EU given that the UK will have no constraints with respect to its services sectors, to which the WTO SCM Agreement does not apply. Thus, the UK might offer domestic companies competitive advantages over EU companies. However, such treatment would not be unqualified, as the WTO General Agreement on Trade in Services is likely to come into play, should the UK grant preferred treatment to its domestic companies. Further, the UK could also consider implementing a domestic State aid control system. In particular, a discussion on the State aid aspect of Brexit recently emerged in an Explanatory Note to the EU Withdrawal Bill. Clause 4 of that Note details EU rights and obligations that will continue to be recognised and enforced in the UK domestic law, by pointing to the respective provisions of the Treaty on the Functioning of the European Union (‘TFEU’).95 The list of TFEU articles containing the provisions to be converted into domestic law includes Articles 107 and 108(3) TFEU. Given that these articles concern the standstill obligation and the requirement of notification to the European Commission, their inclusion to that list for conversion probably implies that further domestic statutory arrangements must be made. A potential scenario is the transfer of the European Commission’s current powers and competencies to an independent body in the UK (e.g. potentially the Competition and Markets Authority). In that case, the UK could continue to operate under a State aid regime that would be equivalent to the EU one. This, in turn, could facilitate the inclusion of State aid provisions in the future EU-UK trade agreement. As evidenced by the European Commission’s latest State aid Scoreboard96 the UK’s spending on State aid grants was fairly limited. However that does not necessarily suggest that in a post-Brexit landscape, with potentially looser scrutiny, such containment of State intervention will remain unaltered. On the other hand, considering that the completion of the Brexit process itself might give rise to unforeseen costs, it is highly likely that the UK government will want to control any other expenditure and thus it might set up a competent authority in this respect. Footnotes 1 Commission Regulation (EU) 2017/1084 of 14 June 2017 amending Regulation (EU) No 651/2014 as regards aid for port and airport infrastructure, notification thresholds for aid for culture and heritage conservation and for aid for sport and multifunctional recreational infrastructures, and regional operating aid schemes for outermost regions and amending Regulation (EU) No 702/2014 as regards the calculation of eligible costs, OJ L 156, 20.6.2017, p. 1–18. 2 Eligible costs of €130 million per project or €150 million per project in a maritime port included in the work plan of a Core Network Corridor. 3 Eligible costs of €40 million per project or €50 million per project in an inland port included in the work plan of a Core Network Corridor. 4 Commission Decision of 27 July 2017, Ports taxation in Belgium (‘Ports taxation in Belgium’) (Case SA. 38393), so far only available on the Commission’s website. 5 Commission Decision of 27 July 2017, Ports taxation in France (‘Ports taxation in France’) (Case SA. 38398), so far only available on the Commission’s website. 6 Case T-128/98 Aéroports de Paris v. Commission, EU:T:2000:290, paragraph 125 and case T-196/04 Ryanair v. Commission, EU:T:2008:585, paragraph 88. 7 Commission decision of 15 December 2009 (N 385/2009) and Commission decision of 15 June 2011 (44/2010). 8 See, Ports taxation in France, paragraph 48. 9 Ibid. paragraph 59. 10 Ibid. paragraph 66. 11 Ibid. paragraph 83. 12 See, Ports taxation in France, article 2 and Ports taxation in Belgium, article 2. 13 Commission Decision of 4 October 2017, Luxembourg – Alleged aid to Amazon (Case SA. 38944), not yet published in the OJ or available on the Commission’s website. 14 Commission press release of 4 October 2017, IP/17/3701. 15 Commission press release of 4 October 2017, IP/17/3702. 16 Commission Decision of 30 August 2016 alleged State aid implemented by Ireland to Apple (Case SA. 38373), OJ L 187, 19.07.2017, p. 1. 17 Commission press release of 26 October 2017, IP/17/4201. 18 Communication from the Commission on the application, from 1 August 2013, of State aid rules to support measures in favour of banks in the context of the financial crisis (‘Banking Communication’), OJ C 216, p. 1–15. 19 Commission Decision of 4 September 2017, Rescue aid in favour of Air Berlin PLC & Co. Luftverkehrs KG (Case SA.48937), so far only available on the Commission’s website, paragraph 41. 20 Ibid. paragraphs 41–57. 21 Ibid. paragraph 53. 22 Ibid. paragraph 87. 23 Commission Decision of 10 January 2017, on State aid which France is planning to implement in favour of Areva group (‘Areva’), (Case SA.44727), OJ L 155, 17.6.2017, p. 23, recital 3. 24 Communication from the Commission, Guidelines on State aid for rescue and restructuring non-financial undertaking in difficulty, 31.7.2014, OJ C 249, p. 1. 25 Areva, paragraph 293. 26 Areva, paragraphs 316–317. 27 Case T-620/17 Teollisuuden Voima v Commission, pending. 28 Commission Decision of 16 June 2017, Measures in favour of OSE S.A., (Case SA.32543), OJ C 254, 4.8.2017, p. 1. 29 Ibid. paragraph 9. 30 Ibid. paragraphs 18–21. 31 Ibid. paragraph 45. 32 Ibid. paragraph 13. 33 Ibid. paragraph 66. 34 Ibid. paragraph 122. 35 Case C-74/16 Congregación de Escuelas Pías Provincia Betania, EU:C:2017:496. 36 Case C-76/05 Schwarz and Gootjes-Schwarz, EU:C:2007:492, paragraph 40. 37 Case C-318/05 Commission v Germany, EU:C:2007:495, paragraph 69. 38 Case C-74/16 Congregación de Escuelas Pías Provincia Betania, EU:C:2017:496, paragraph 50. 39 Ibid. paragraph 51. 40 Ibid. paragraph 57. 41 Ibid. paragraph 70. 42 Ibid. paragraph 72. 43 Case C-150/16 Fondul Proprietatea, EU:C:2017:388. 44 Case C-482/99, France v Commission, EU:C:2002:294, in particular, paragraphs 38,55, 56, and 57. 45 Case C-150/16 Fondul Proprietatea, EU:C:2017:388, paragraph 17. 46 Ibid. paragraph 18. 47 Case C-482/99 France v Commission, EU:C:2002:294, paragraphs 55 and 56. 48 Case C-150/16 Fondul Proprietatea, EU:C:2017:388, paragraph 19. 49 Case C-329/15 ENEA, EU:C:2017:671. 50 Ibid. paragraph 22. 51 Ibid. paragraph 30. 52 Case C-482/99 France v Commission, EU:C:2002:294, paragraph 38. 53 See Case C-482/99 France v Commission, EU:C:2002:294, paragraphs 38 and 39. 54 Case C-467/15P Commission v Italy, ECLI:EU:C:2017:799. paragraph 49. 55 Ibid. paragraph 44. 56 Ibid. paragraph 46. 57 Judgment of the Court, 91/83 & 127/83 Heinken Brouwerijen, EU:C:1984:307, paragraph 21. 58 Cases C-630/11 P to C-633/11 P HGA and Others v Commission, EU:C:2013:387, paragraphs 89–95. 59 Case T-291/11 Portovesme v Commission, EU:T:2014:896. 60 Case C-606/14 P Portovesme Srl v Commission, EU:C:2017:75, paragraph 105. 61 Ibid. paragraph 102. 62 Case T-233/11 Greece v Commission, EU:T:2015:948. 63 Commission Decision of 23 February 2011, State aid C 48/08 (ex NN 61/08) implemented by Greece in favour of Ellinikos Xrysos SA (Case 2011/452/EU), OJ L 193, 23.7.2011, p. 27–47. 64 Case 100/16 P Ellinikos Chrysos AE Metalleion kai Viomichanias Chrysou v Commission, EU:C:2017:194, paragraph 29. 65 Ibid. paragraph 32. 66 Ibid. paragraph 34. 67 Ibid. paragraph 54. 68 Case C-300/16 P Commission v Frucona Košice, EU:C:2017:706. 69 Ibid. paragraph 26. 70 Ibid. paragraph 29. 71 Ibid. paragraph 69. 72 Ibid. paragraphs 77 and 78. 73 Ibid. paragraph 81. 74 Case T-125/12 Viasat Broadcasting UK v Commission, EU:T:2015:687. 75 Commission Decision of 20 April 2011, on the measures implemented by Denmark (C 2/03) for TV2/Danmark (Case 2011/839/EU), OJ L 340, 21.12.2011, p. 1–31. 76 Case C-280/00 Altmark Trans and Regierungspäsidium Magdenburg, EU:C:2003:415. 77 Case T-219/14 Regione autonoma della Sardegna v Commission, EU:T:2017:266. 78 Case C-660/15 P Viasat Broadcasting UK v Commission, EU:C:2017:178, paragraph 35. 79 Case T-219/14 Regione autonoma della Sardegna v Commission, EU:T:2017:266. 80 Under article 2246 of the Italian Civil Code, the shareholder of a company whose capital has been reduced by more than a third is bound to recapitalise the company. 81 Case C-33/14P Mory and Others c. Commission, EU:C:2015:609, paragraphs 57 and 62. 82 Case T-219/14 Regione autonoma della Sardegna v Commission, EU:T:2017:266, paragraph 60. 83 Ibid. paragraph 105. 84 Ibid. paragraph 108. 85 Ibid. paragraph 184. 86 Ibid. paragraph 197. 87 Case C-228/16 P DEI v Commission, EU:C:2017:409. 88 Ibid. paragraph 38. 89 Ibid. paragraph 39. 90 Ibid. paragraph 43. 91 As regards tax rulings and in particular when it comes to transfer pricing, the OECD guidelines would still provide fpr guidance and limitations. 92 Agreement on Subsidies and Countervailing Measures, 1994, Annex 1A to the Marrakesh Agreement Establishing the World Trade Organisation, 1867 UNTS 14. 93 According to the SCM Agreement as a subsidy is considered (i) any financial contribution in the form of direct transfer of funds (eg. grants, loans); (ii) government revenue that is otherwise due is foregone or not collected (eg. Tax credits); (iii) provision of goods or services other than general infrastructure etc by a government or any public body, that (iv) confers a benefit. (Full reference: WTO SCM Agreement, Art. 1). 94 Unless they are part of what is defined as prohibited subsidies pertaining to imports and exports. 95 EU Withdrawal Bill Explanatory Notes, par. 87 and following; https://publications.parliament.uk/pa/bills/cbill/2017-2019/0005/en/18005en.pdf. 96 State Aid Scoreboard 2016; http://ec.europa.eu/competition/state_aid/scoreboard/index_en.html. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

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Journal of European Competition Law & PracticeOxford University Press

Published: Mar 1, 2018

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