State aid

The granting of State aid to undertakings is subject to strict rules. It is indeed well established that, in principle, EU law prohibits State aid (Article 107(1) TFEU). However, subject to the approval of the European Commission, State aid may exceptionally be permitted. In view of the increasing complexity of the European State aid rules, it is nonetheless advisable to apply the exceptions to the European State aid prohibition with caution. An incorrect application of the State aid rules has serious consequences: the Commission will not hesitate to order the recovery of all unlawfully granted State aid (up to ten years retroactively). Moreover, such aid may be challenged before the Belgian courts.

Tender Law has the expertise to advise public authorities, recipients of State aid, their competitors and other stakeholders on all kinds of questions relating to the interpretation and application of the European State aid rules. We assist parties, for example, with:

• Assessing whether public measures (e.g. subsidies, the (sale) or acquisition of assets, capital participations, tax measures, public procurement, etc.) constitute ‘State aid’ and, if so, whether they are prohibited. In this regard, we would like to recall that the concept of State aid is interpreted very broadly under EU law.
  
  
• Assessing whether a recipient of aid (e.g. a company, a non-profit organisation, a public institution, etc.) should be regarded as an “undertaking” and therefore must take EU State aid law into account.
  
  
• Preparing, submitting and monitoring notifications of new aid measures to the Commission. We recall in this respect that all new State aid must, in principle, be notified to the Commission for approval (Article 108(3) TFEU) and that due attention must be paid to following the correct procedures in order to avoid the aid measure in question being unlawful.
  
  
• Assessing whether an aid measure falls under an exemption from the above-mentioned notification obligation, for example on the basis of the General Block Exemption Regulation (GBER) or another exemption scheme. For public authorities wishing to grant State aid, it is always advisable to examine whether the GBER offers a solution: in recent years, the vast majority of aid measures have been adopted on the basis of the GBER.
  
  
• Assessing whether a public measure can be regarded as “de minimis aid”. This concerns aid measures whose amount remains below a certain threshold (in principle EUR 300,000 per undertaking over a period of three years) and which therefore fall outside the scope of the EU State aid prohibition. The application of the de-minimis rules, however, requires compliance with important formalities.
  
  
• Applying the rules on so-called “services of general economic interest” (SGEI). These rules provide for specific exceptions to the State aid prohibition for aid granted to undertakings entrusted with the provision of an SGEI (e.g. social housing, transport, postal services, etc.).
  
  
• Providing advice on how to make a public measure “State aid-proof”.