In a judgment delivered on 30 November 2016 the Court of Justice of the EU dismissed the appeal of the Commission and thereby the General Court's judgment (judgment of 2 July 2015 in France and Orange v Commission, T-425/04RENV, EU:T:2015:450) has become final, meaning that the Commission decision declaring the measure to be State aid has been (definitively) annulled. The State measure at issue was a highly unusual one: with regard to the serious debts encountered by France Télécom in 2002, the minister representing the State shareholder made public announcements reassuring credit rating institutions and capital markets that France Télécom had the State's support in order to overcome its financial difficulties. Finally, and due to the reassuring effect of the announcement concerning a shareholder loan offer (a credit line offered by the French State but never accepted or acted upon by the parties), France Télécom was able to obtain the necessary financing on reasonable terms on the capital market. The Commission decision finding that the unusual measure consituted State aid was first annuled in 2010 by the General Court, however, the Court of Justice set aside that judgment and referred the case back to it, so the appeal procedure closed last week related to the second judgment of the General Court. The ground for the first annulment was that the Commission could not have regarded the sequence of actions (several public announcements and the shareholder load offer) as part of the same State measure, and the final ground for annulment was that the Commission misapplied the prudent private investor test.

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Created: 06 December 2016

In its judgement delivered on the 29th of September 2016, the Court of Justice of the European Union adjudicated that support mechanism for green electricity of Flanders, which provided free distribution for green energy produced in the region and fed directly into the distribution system is against EU law. According to the Court, this support mechanism is not able to achieve the objective targeted, i. e. providing an effective incentive for the production of green electricity and therefore it cannot be considered as propotional. However, the Court has ascertained its settled case-law that national support mechanisms like green certificates and the obligation of purchasing green electricity at fixed prices limited to the territory of the Member States (i. e. maintained only for green electricity produced in the Member State concerned) are compatible with EU law.

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Created: 06 October 2016

In its judgment of 14 September 2016, Trajektna luka Split v Commission, the General Court of the European Union confirmed its earlier interpretation laid down in PreussenElektra, according to which the benefit conferred by the State measure at issue must be financed from State resources in order to qualify as State aid. In the case giving rise to the new judgment the applicant was compelled by legislation to finance that benefit, so the criteria of financing from State resources was definitely not met.

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Created: 28 September 2016

The Court of Justice of the European Union has delivered its judgement in case Schenker vs NAV on the 8th of September 2016. In its preliminary ruling the Court said that the incorrect subheading of a good which is under a customs suspensive procedure does not give rise to excise duty liability if the chapter of the Common Customs Tariff which covers those goods is correctly mentioned (as well as the name, the type and the quantity of that goods). However a failure like this can give rise to a customs debt in case it has a significant effect on the correct operation of the customs procedure in question. It is for the referring court (Debreceni Közigazgatási és Munkaügyi Bíróság) to decide if that is the case in the main proceeding.

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Created: 28 September 2016