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Compliance with State Aid Rules – an Ongoing Task despite the Help of NoA and GBER

Julia Lipinsky

It is no big news that the Member States need to respect the European Union’s State aid law when using resources from the European Structural and Investment (ESI) Funds. This obligation not only follows from Article 107f. TFEU, but also from the principle that each operation supported by the ESI Funds shall comply with applicable Union law (Article 6 of the ESIF Common Provisions Regulation (CPR)). Thus, the authorities involved in the management and control of ESI Funds have already been confronted with the task of ensuring State aid compliance for a long time. However, one can get the impression that State aid law has received more attention during the funding period 2014-2020 and, together with the rules on public procurement, forms a kind of “dynamic duo” whose handling causes quite a headache among those concerned. The “Notice on the notion of State aid”(NoA), published by the Commission in May 2016, and the General Block Exemption Regulation of 2014 (GBER 2014), are two instruments that certainly will help a lot, as well the ESI Fund managing authorities, when dealing with potential State aid cases. However, one should not be tempted to conclude that these instruments will solve all problems. Both instruments have grey areas and thus oblige managing and audit authorities to be alert about State aid. This article aims at pointing to some aspects which the authorities should take a critical look at.

Julia Lipinsky, M.E.S. is senior associate at Müller-Wrede & Partner Rechtsanwälte in Berlin, specialised in European State Aid and subsidy law. The information contained in this article has been researched with the utmost care and reflects the factual and legal status quo at the date of the preparation of the article. However, it cannot replace any legal advice or counselling for the individual case.


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