1. State aid in the field of Energy: challenges
Maria Segura
Clayton & Segura State Aid Lawyers

2. ESI Funds support and state aid
Article 6 of the ESIF Common Provisions Regulation (Regulation (EU) No 1303/2013 of 17 December 2013)
Operations supported by the ESI Funds shall comply with applicable Union law and national law relating to its application
Name of your presentation

3. ESIF - ex ante conditionalities
The general obligation of Article 108(3) TFEU
Additional requirement under ESIF which helps regarding compliance with the state aid rules (as opposed to pure “national state aid measures”)
CPR Annex XI Part II - Ex ante conditionalities: The existence of arrangements for the effective application of Union State aid rules in the field of the ESI Funds.
Ex ante conditionalities - stricter requirements or a reiteration of the general obligation?

4. Obligations for managing authorities
Identify any state aid accurately
Properly assess whether remuneration of private or public investors in line with the market economy operator principle
Apply correctly the state aid rules and exemptions
Meet the Commission’s administrative requirements for monitoring and aid schemes
Secure compliance with the state aid rules including rules on cumulation for funding from different sources
Name of your presentation

5. Definition of state aid applied to energy
The “pre-test”: is the support provided to an undertaking engaged in an economic activity in a market for goods and services irrespective of its legal form?
The “state aid test”: the four criteria or five conditions
State resources (Preussen Elektra - Vent de Colère)
Selective economic advantage (MEOP)
Distortion of competition
Effect on trade

6. ESIF priorities - State aid guidelines
Article 5(4) ERDF Regulation No 1301/2013 / Article 4(a) Cohesion Fund Regulation No 1300/ Investment priorities ...supporting the shift towards a low-carbon economy in all sectors
Regarding support for energy, variety of instruments govern the assessment of compatibility of the aid:
De minimis
GBER
EEAG

7. Measures covered by ESIF
Promoting the production and distribution of energy derived from renewable sources;
Promoting energy efficiency and renewable energy use in enterprises;
Supporting energy efficiency, smart energy management and renewable energy use in public infrastructure, including in public buildings, and in the housing sector;
Developing and implementing smart distribution systems that operate at low and medium voltage levels;
Promoting low-carbon strategies for all types of territories, in particular for urban areas, including the promotion of sustainable multimodal urban mobility and mitigation-relevant adaptation measures;
Promoting the use of high-efficiency co-generation of heat and power based on useful heat demand

8. Coherence between EU policies
Communication “Energy 2020 – a strategy for competitive, sustainable and secure energy“
Objectives: secure, affordable and sustainable energy market with upgraded electricity grids, competitive and cleaner alternatives to replace obsolete plants, energy used more efficiently through the whole energy chain.
State Aid Modernisation:
Energy falls outside RAG
GBER: energy generation, distribution and infrastructure are subject to sector-specific internal market legislation, criteria regarding compatibility with the internal market and consistency with the Union's environmental and energy policies

9. New state aid guidelines for energy and environmental aid (EEAG)
The objectives:
Make the rules clearer and simpler
Definitions
Common assessment elements for different categories of aid
Limit detailed assessment to large projects with significant impact on competition
Fulfilled?

10. GBER: the cornerstone of the 2014-2020 State Aid Regime
Incentive for Member States to rely more on the GBER - three changes:
The scope of the GBER has been extensively widened. It now covers almost all categories of exceptions in Article 107(2) and (3).
The maximum allowable aid intensity for several types of aid has been raised.
Many thresholds for notification of individual amounts of aid have also been raised.
Measures covered:
Aid to increase environmental protection (Art. 36 & 37), energy efficiency (Art. 38 & 39), high efficiency cogeneration (Art. 40), renewable energy (Art ), energy efficient district heating and cooling (Art. 46), recycling and re-utilisation (Art. 47), energy infrastructure (Art. 48)

11. Common challenges
Definition of the objectives and design of measures including financing
Determination of the eligible costs and the coverage of different support measures
Introduction of competitive elements such as bidding procedures
Counterfactual, incentive effect and necessity

12. Common challenges (II)
One size fits all approach under GBER
Different MS
Guidance
Accountability, responsibility, legal uncertainty, recovery

13. Thank you very much!