First of all, we wish you a happy new year!

And in order to start it with something interesting, I would like to draw your attention to the opinion of Advocate General Wahl delivered on 20 December 2017 in Andres (Heitkamp BauHolding) v Commission (C-203/16 P, EU:C:2017:1017). For those who are interested in the practical application of the three-step test for the assessment of the selectivity of tax measures, and in particular step one, determination of the reference system, and step three, justification of the derogation by the nature and general structure of the system, reading the opinion is a must! Do not miss it, we really recommend it. :-)

Lexcellence wishes to our dear visitors a Merry Chritmas and a Happy New Year!

We had a 10 years anniversary on the 12th of December.  For this occassion we brewed another festive beer in Brew Studio. It is called X.

The Court of Justice of the EU closed by its order of 10 October (Greenpeace Energy v Commission, C-640/16 P, EU:C:2017:752) the case of renewable energy producers seeking the annulment of a Commission decision approving State aid to the Hinkley Point NPP. The order confirmed last year's market analysis of the General Court according to which electricity produced from renewables and nuclear power belongs to the same product market with a European wide geographic dimension. So electricity producers seeking annulment of a similar measure are to prove locus standi under Article 263 TFEU (including 'individual concern', i.e. substantial affectation of their market position which is genuinely different from that of other competitors of the beneficiary) in relation to the internal electricity market of the European Union as a whole.  Although this appears to be an unrealizable task, the Court rejected submissions concerning the breach of the applicants' right to effective judicial protection. As the general system of judicial remedies in EU law provides, undertakings not being able to challenge the validity of a Commission decision directly before the EU Courts may contend however that the measure is invalid before national courts and cause the latter to refer questions to the EUCJ for preliminary ruling. However, as the applicants also stressed, a positive decision of the Commission authorising State aid to a nuclear power plant is quite a specific measure in that regard.  First, the assessment of compatibility of the aid belongs to the exclusive competences of the Commission, so it is well established, well-known case-law that national courts do not have competences concerning compatibility. Second, it is also well-established case-law that compatibility assessment under Article 107(3)c (legal basis for authorising State aid to a nuclear power plant) is complex economic assessment of the Commission, subject to restricted judicial review. So it appears to be highly unlikely for us that a national court would dare to raise the invalidity of a European Commission assessment based on 50-60 years' forecasts of electricity prices and market development in such a legal context, being told by well established case-law that it lacks competence to deal with the issue.  Although not discussed in the recent Court order, it seems to be particularly controversial for us that the given system of judicial remedies makes it practically impossible for a similar Commission decision to be suspended by interim relief. A national court with such limited jurisdiction concerning the topic would hardly ever order suspension of operation of the Commission decision or national implementing measures, regardless of how serious doubts it may have concerning legality of the decision or how serious and irreversible damages it may cause if executed.

Quite difficult to write shortly about it, even though it is definitely not a long judgment. In essence: the Court of Justice of the EU ruled in ENEA (C-329/15, EU:C:2017:671) that a scheme financed in 80% by State-controlled undertakings was not financed through State resources provided (and on condition) that the State did not exert ownership influence on the decision-making of those companies in order to ensure that they complied with their obligations as prescribed by law to finance the (aid) scheme in question. It will be interesting to see whether it will inspire national regulators again to develop creative quasi-aid schemes like the original PreussenElektra judgment did.  We thought this story was over..  

The EU Court brought its first preliminary ruling concerning the EU Merger Regulation (139/2004/EC) in a case linking to the planned change of control above the asphalt plant in Mürzzuschlag, Austria. The question arose, whether the change in the form of control from exclusive to joint over an existing undertaking is a concentration according to the EU Merger Regulation, which (therefore) must be assessed by the Commission. The EU Court took the view that EU Merger Regulation is only applicable to concentrations which result in lasting and signifacnt change in the structure of the market. The creation of a joint venture which does not perform the functions of an autonomous economic entity on a lasting basis (like the asphalt plant in the main proceeding) is not like this. However, it does not mean that transactions like in the main proceeding escape competition law control, since Article 101 TFEU might be applicable.