Article 263(4) TFEU and the impossibility of challenging recovery decisions in state aid: annotation on the judgments of the general court of 15 September 2016 in T-219/13 Pietro Ferracci v European Commission and T-220/13 Scuola Elementare Maria Montessori v European Commission

The Ferracci and Montessori judgments of the General Court of 15 September 2016 were challenges brought against a Commission Decision scrutinising Italian municipal tax rules allowing tax exemptions for non-commercial bodies. The cases raise issues of when third party standing is allowed under Article 264(4) TFEU, the standard of review of European Commission Decisions, the concept of economic and non-economic activity and when the European Commission may decide that it is impossible for a Member State to recover illegal State aid

"Europe isn't working in Europe": reform and modernisation of the European welfare state in the wake of the economic crisis

The first section analyses the European commitment to a welfare state in the light of the creation of an Internal Market and the economic crisis. The second section addresses how the EU has set about the reform and modernisation of public finances in response to the economic crisis. The third part analyses how the EU is balancing a modernisation agenda of reforming public services with a tougher agenda on reforming public finances. This section is followed by a specific case study of the modernisation of the procurement and financing of public services

A UK brexit transition: to the Ukraine model?

The UK is searching for a framework for its post-Brexit trade arrangements with the EU. A clean Brexit from the EU has always been unrealistic and the EU is limited in the kind of trade arrangements it offers to third countries. This briefing paper examines the EU-Ukraine Association Agreement (AA) suggesting how a similar agreement may offer a way forward for the UK-EU negotiations. The EU-Ukraine AA reveals that the EU is willing to adapt previous Agreements to new circumstances. A similar UK-EU Agreement could provide access to the Single Market, maintain inward investment incentives and provide an attractive location for establishment of firms and enterprises, especially in the services sector – an area the UK is keen to protect. For the UK, the adoption of this approach would require less unravelling of existing UK laws, but offer some room for independence in negotiating future issues. • The Agreement also offers a “buy in” to other EU policies but these are not conditional on subscribing to the price of full membership of the EU

Services of general economic interest and state measures affecting competition

The last year has been a typical year in this survey of Services of General Economic Interest (SGEI) and state measures affecting competition where the report is a series of ad hoc measures relating to SGEI. Two new soft communications have been published to complement the Almunia Package of measures to regulate compensation for SGEI: a European Commission instrument to determine swap rates and a Commission Staff Working Paper. There are a few European Commission Decisions, particularly in the postal sector, involving financing SGEI that fall outside of the new Almunia Package, but are assessed according to the new methodological approach. The General Court (GC) has asked the European Commission to take greater care to analyse the funding of ancillary services to health care schemes; a rebuke that is also seen in applying Article 106 TFEU in the Greek Lignite case. Of a wider significance for European Union (EU) economic law, the Court of Justice of the EU (CJEU) and the European Commission have provided analysis of the definition of ‘economic activity’ which triggers the application of EU law generally. Two cases have considered the application of Article 106 TFEU, with the GC providing greater analysis of when, and how, Article 106 and 102 TFEU may be used together

National judges and training in EU state aid law

The latest Call from the European Commission identifies the training of national judges in EU State aid law as one of its priority areas. The number of State aid cases at the national level is increasing and present complex issue of law and economics for national judges to solve. A recent training session at the Spanish Judicial School in Barcelona reveals how a successful programme of training can be organised, highlighting the many recent State aid issues that have been identified in European Commission policy documents and Decisions and case law of the European Courts

Triggering Article 50 TEU: a legal analysis

• Article 50 of the Treaty on European Union (TEU) will govern the UK’s withdrawal from the EU. • The use of Article 50 TEU is unprecedented and withdrawal will be governed by both legal and political processes within the UK, the EU and the World Trade Organization, making it a complex undertaking. • In this context, several aspects of the interpretation and application of Article 50 TEU pose particular challenges. These include domestic controversy regarding the constitutional requirements for triggering Article 50 TEU, the short time-span of negotiation, and the uncertain role for the UK in trade negotiations with the EU and the rest of the world during the withdrawal process. This paper outlines these issues, focusing in particular on the EU and international trade (rather than domestic constitutional) dimensions of withdrawal, in order to provide clarity and highlight potential pitfalls affecting both the EU and the UK. ISBN: 978191204470

State aid, public funding and infrastructure: Case C‑288/11 P Mitteldeutsche Flughafen AG, Flughafen Leipzig-Halle GmbH, established in Leipzig European Commission (‘Leipzig-Halle’) [2012]

The Leipzig-Halle case is a significant case for EU State aid law in determining the parameters of when, and how, the State can legally finance infrastructure projects. The case confirmed a change in attitude developing in the Commission, of not assuming that publicly funded infrastructure projects were free of State aid. For this reason, the case may be seen as a significant milestone in the modernization of State aid practice. The subsequent application of the ruling by the Commission especially in guidance and legislation such as the GBER has led to criticisms that the case extended the competence and jurisdiction of the Commission (which continued to argue that each case should be assessed on its own facts and context), exposing the Member States’ choices in funding infrastructure projects to greater transparency, greater bureaucracy as well as opening up the possibility of challenges by third parties affected by the public policy choice. The structure of the analysis of the case is as follows: Part II explains the Commission practice towards infrastructure funding prior to Leipzig-Halle. Part III provides a discussion of the facts of the case, the Commission Decision, and the judgments of the General Court (GC) and the CJEU. Part IV looks at the general response to the Leipzig-Halle ruling. Part V outlines the inclusion of infrastructure projects in the General Block Exemption Regulation. Part VI examines two cases on sports infrastructure. Part VII Examines the Commission Notice on the Notion of State aid. Part VIII examines the Greek Motorway project as a case study of a trans-European infrastructure project. Part IX assesses the impact of the Leipzig-Halle ruling on Commission practice and the effect on the Member States autonomy to fund infrastructure projects against the backdrop of EU policy