European Competition Law provides a wide-ranging review of the European rules relating to competition: restrictive agreements, abuse of a dominant position, impact of intellectual property rights, procedure, merger control, State aid.

European Competition Law

Article 1 of the procedural regulation defines negatively new aid as all aid, that is to say, aid schemes and individual aid, which is not an existing aid . Aid can be classified as existing either if it was granted prior to the entry into force of the Treaty in the Member State concerned, it remains applicable after that date and has not been subsequently amended , or if it was granted after the  …

Concept

Article 1 of the procedural regulation defines negatively new aid as all aid, that is to say, aid schemes and individual aid, which is not an existing aid . Aid can be classified as existing either if it was granted prior to the entry into force of the Treaty in the Member State concerned, it remains applicable after that date and has not been subsequently amended , or if it was granted after the entry into force of the Treaty in the Member State concerned but the ten-year limitation period provided for in Article 17(3) of Regulation No 2015/1589 has expired. It is considered to be new if it is applied after the date indicated by the Member State to the Commission as part of the procedure for the assessment of the aid closed by a decision on the compatibility of the existing aid scheme . Furthermore, where State aid does not fall into any of the categories of existing aid provided for in Article 1(b) of Regulation No 2015/1589, such aid, including the part of it subsequently claimed for payment, must be classified as new aid within the meaning of Article 1(c) of the same text .

An alteration to existing aid may constitute new aid provided that the modification is substantive . Under Article 4(1) of Regulation No 794/2004, an alteration of existing aid means, “any change, other than modifications of a purely formal or administrative nature which cannot affect the evaluation of the compatibility of the aid measure with the common market. However an increase in the original budget of an existing aid scheme by up to 20 % shall not be considered an alteration to existing aid”. Consequently, an increase in the revenue from taxes financing several authorized aid schemes when compared to projections notified to the Commission constitutes an alteration to existing aid unless that increase remains below the 20% threshold laid down in Article 4(1) . The Court held that the extension of the duration of validity of existing aid must be considered as the modification of that aid and as the grant of new aid , even if the modification resulted from an order for interim measures . Similarly, an existing aid scheme constitutes new aid when the Member State implements it in a way that differs materially from that envisaged in the draft notified and, consequently, from that taken into consideration by the Commission . The creation of a new aid or the modification of an existing aid must be assessed by reference to the provisions which provide for the aid and their terms and limits, such that only a change that affects the initial aid scheme in its actual substance transforms it into new aid . This is the case of modifications introduced to an existing aid scheme which are not purely formal or administrative, but are likely to affect the evaluation of the compatibility of the aid measure with the internal market, such as the simplification of the procedure for granting the aid and the widening of the criteria for receipt of aid , or an increase in the original budget . Where the modification only concerns the number of beneficiaries without making substantive alteration to the existing aid scheme, only the severable extension is liable to be classified as new aid . An individual aid awarded in the context of a general scheme, although it is not covered by that general scheme, also constitutes a new aid . However, an amendment to a preferential tax scheme does not constitute new aid insofar as that amendment does not affect  the constituent elements of the aid scheme concerned, as assessed by the  Commission for the purposes of its evaluation of the compatibility of  the previous versions of that scheme with the internal market .

The classification of new aid is of major interest both for the State dispensing the aid and for the recipient, since only the new aid is subject to the prior notification requirement with resulting standstill effect while waiting for the Commission decision . The Court has specified that it is for the national court, in a dispute relating to a contract, even when hearing the application for interim measures, to notify to the Commission all measures which affect the interpretation and implementation of that contract that may have an impact on the functioning of the internal market, on competition or simply on the actual duration, over a specific period, of aid which continues to exist . A notified new aid is deemed to have been authorized, and thus to be an existing aid, where upon expiration of a two-month period from its receipt, or from the receipt of any additional information requested, or within any other time-period set by mutual consent between the Member State and the Commission, the Commission has taken no decision .

An aid scheme relating to the assumption of debts of dairy cooperatives, implemented without informing the Commission beforehand, must be classified as a non-notified new aid scheme: Case C-278/00 Greece v Commission [2004] ECR 3997, LawLex200500004503JBJ.

See Case T-392/20 Petra Flašker and European Commission v Slovenia, Judgment of 27 April 2022, LawLex202200002301JBJ.

Commission Decision No 2008/723/EC of 18 July 2007, State aid C 37-05 implemented by Greece, LawLex200900000236JBJ.

Commission Decision No 2010/38/EC of 21 October 2008, State aid C 20-08, LawLex201000000481JBJ.

Case T-254/00 Hotel Cipriani v Commission [2008], LawLex200900000254JBJ.

Case C-36/00 Spain v Commission [2002] ECR I-3243, LawLex200500004851JBJ; Case T-20/03 Kahla/Thüringen Porzellan v Commission [2008], LawLex200900000257JBJ, for a grant awarded to a firm in difficulty in the context of a general aid scheme approved and reserved only to undertakings in a “financially precarious situation”.

Joined cases C-915/19, C-916/19 and C-917/19 Eco Fox Srl, Judgment of 28 October 2021,  not available in English.

Case C-690/13 Trapeza Eurobank Ergasias, Judgment of 16 April 2015, LawLex201500000505JBJ: where privileges granted to a bank may classified as State aid, the Member State which established them is required to follow the preliminary examination procedure provided for in Article 108(3) TFEU provided that those privileges became new aid after the entry into force of the Treaty in the Member State concerned and that the limitation period laid down by Article [17](3) of Regulation No [2015/1589] has not expired, which is a matter for the referring court to verify. 

Case C-590/14 P Dimosia Epicheirisi Ilektrismou AE (DEI), Judgment of 26 October 2016, LawLex201600001745JBJ.

See Case C-398/00 Spain v Commission [2002] ECR I-5643, LawLex200500004855JBJ, which classifies the aid as an existing aid.

Case C-470/20 AS Veejaam et OÜ Espo v AS Elering, Judgment of 15 December 2022, LawLex202300002218JBJ.

Case C-702/20, Judgment of 12 January 2023, LawLex202300001359JBJ.

Case T-195/01 Government of Gibraltar v Commission [2002] ECR II-2309, LawLex200500004932JBJ; Case T-116/01 P & O European Ferries (Vizcaya) v Commission [2003] ECR II-2957, LawLex200400003305JBJ; Case C-442/03 P P&O European Ferries (Vizcaya) v Commission [2006] ECR I-4845, LawLex200700000270JBJ; Case T-20/03 Kahla/Thüringen Porzellan v Commission [2008], LawLex200900000257JBJ. 

 Case C-510/16 Carrefour Hypermarchés, FNAC and Others, Judgment of 20 September 2018, LawLex201900001399JBJ.

C-102/21 and 103/21 Autonome Provinz Bozen, Judgment of 7 April 2022, LawLex202200002140JBJ: relating to individual aid granted under an aid scheme after the expiry of a Commission decision authorizing that scheme.

Case T-131/21 Região Autónoma da Madeira, Judgment of 21 June 2023,   not available in English.

Case T-542/11 Alouminion v Commission, Judgment of 8 October 2014, LawLex201700001084JBJ : the intervention of the interim applications court, which has neither the object not the effect of modifying the substance of the exisiting aid, and which merely issues an interim order in the dispute brought before it, does not classify the aid at issue as new aid.

European Competition Law

429. Concept

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429. Concept

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