my.PROMPTKINGS

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PROMPTS

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you are the lawyer for the cocoo, an organisation that enforces competition law. read this attachements, and give your insights on: 1.name of companies/organisations that we can file a complaint against. 2/.grounds and supporting evidence for our complaints. 3/what is the forum where we lodge each complaint (example: cma, cat, commission etc)

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Today is 12 january 2025. find out , for each complaint: 1/the type of harm, 2/the date the harm started 3/the time limit to file a complaint or a claim for damages, 4/ who caused the harm? who are the victims:company names, public interest, consumers?

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given the information you just gave me, calculate which time limits for damages claims are open for each case, and which time limits for claims are open, and give me a list of complaints and claims that we still can make

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that list includes claims for damages ? we can find victims to gain locus , and claim damages

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GO online and make a list of complaints and claims that have been filed, to date, in connection with any of the:ela, cpvo,srb,eea

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who are the victims: the public interest? the consumer? suppliers? competitors? …..make a list of names for each victim-type ,

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now you are a competition lawyer. give me your insights as to how competition law and competition policy, are compromised, actual or potentially, by each of the above cases. then, add those new grounds to all thegrounds you found above. and draft our final letter of claim for damages against each perpetrator.

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you are an expert competition lawyer. why do you think that the victims have not claimed?, why nobody claimed for damages or for review, of the decisions that have led to the loss of so much money? could it be that , because this is european taxpayer money, and individual taxpayers lack locus or eligibility to claim on behalf of all taxpayers? would therefore, these cases be ideal for the cocoo to take over in pro of the public interest and consumers?

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how many damages claims or arb.proceedings, exist on these matters, have , to date, been filed?

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give me a list of the main perpetrators, whether public institutions, or private or public companies etc

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give a breakdown , for each case, where the name of each victim is shown together with the amount for damages that we will be asking for each victim

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what the approximate estimate of the quantum of the damages that we will be seeking for each of our claims. provide a detailed breakdown for each

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CHRONO.pples

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1-cocoo will specialise in bringing/pap nonclass wpi focs: why?

cocoo does not need to find victims, as litigates on own standi, on wpi of citizens/consumers….since, these are different than the rjparties, the foc is not rj….but cocoo needs to find members (harmed ), unless is a EEAC cocoo does not need to prove the (infringement) rjdecision [becos is a foc]

2-  smap ??. If no smap, end.  IF SMAP, ANTICOMPS?

Persistent high profits may signal anticompetition… but before reaching this conclusion we must ask:  why are profits high?;  will they keep high in the future?

IDENTIFY PIFOC  (PUBLIC INTEREST FOC) TYPE

A/ NON-EEAC PIFOC

B/ EEAC PIFOC <> the 17 areas of the NSI Act

public body fails to tender a public contract…[is eeac becos no person has more right to sue than any other, since no person ever tendered.]..environment public body (or private firms providing public services) engaging in anticomps CMA making flawed decisions
regulators making flawed regulation

WHO TO FOC V …? = IDENTIFY FOC DEFENDANT

MARKET DEFINITION. MARKET SHARE    ANCHOR DEFENDANTS

V. CO/DIRS, ON PI GROUNDS, FOR ALLOWING THE GROWTH OF THE CO’S ‘COMMON OWNERSHIP’ TO HARM COMPETITION…….   OR V FINANCIAL COS, ON PI GROUNDS, FOR BEING TO BIG TO BE ALLOWED TO FAIL

PB <> CL POLICIES, REGULATION & SUPPLEMENTATION   <>  CMA AND CL POLICIES

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NDA   REMEDIES TAB

FOC GROUNDS AND WHERE TO FOC

-BEST Grounds:  contempt, public interest.; assisting crime/fraud; co-conspiracy; complicity…..

-EC: ‘THE SUSTAINABILITY(PI) QUALITIES OF A PRODUCT ARE INDEED A COMPETITION PARAMETER (CL)’  < > OECD: AN UA IS BOTH PI + CL, IF PRODUCES DIRECT ECONOMIC BENEFITS (WHETHER ON JUST THE COMPANY, OR ON THE WORLD), (EG. ENVIRONMENTAL BENEFITS),

-BANANAS, CHOCS, COFFEE : THE INTERMEDIARIES/WHOLESALERS/RETAILERS , PAY TOO LOW UNFAIR PRICES TO FARMERS (SOUTHAMERICA…)  + ENCOURAGE EXCESSIVE USE OF SCARCE RESOURCES + DISCOURAGES SUSTAINABLE LAND PRACTICES.  (102.A TFEU)

– HOW SH PRIMACY; COMMON OWNERSHIP; CONCENTRATION OF ASSET MANAGEMENT, AFFECT CL/PI ?  <> FINANCIALISATION POST

-DID THE COMPANY IDENTIFY (OR AT LEAST TRIED TO) OPPORTUNITIES TO WORK TOGETHER FOR SUSTAINABILITY ?…. DID THEY ENGAGE IN SUSTAINABILITY?…. THEY CAN LAWFULLY ENGAGE IN ANTICOMPETITION, AND EVEN RAISE PRICES, AS LONG AS IT IS WITHIN A SUSTAINABILITY (STANDARISATION – NOT REQUIRED, BUT RECOMMENDED) AGREEMENT….

< >COCOO WILL ASK FOR DISCOVERY OF THE SUSTAINABILITY/STANDARISATION AGREEMENT….TO SEE IF BREACHED

-CAP REP BREACH?

-FAILURE TO FOCUS ON THE CONSTITUTIONAL PROHIBITIONS OF THE EU TREATIES?….PROPORTIONALITY PPLE. APPLIED?

-A CONFLICT BETWEEN PI(=SUSTAINABILITY) GROUNDS/POLICIES, CL(=ECONOMIC) GROUNDS/POLICIES. ?….IF THE BODY (PUBLIC OR PRIVATE) IS ENGAGED IN ECONOMIC ACTIVITIES, IS ACTING UNDER AN UA (THUS, SUBJECT TO CL)…. NOW, COCOO WILL ASK CMA TO DISCLOSE THE SFOs (SHORT FORM OPINIONS) ISSUED.

FOC GROUNDS:  PI/GREY/CL
EU CONSTITUTION AND COURT JURISDICTION (WHERE TO FOC)     PI GROUND (SUSTAINABILITY)  MERGER CONTROL

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PADI PAPs  LPC/CIP  for possible:

a.private action (v company) , to void the MA, for failing to notify the MA, or failing the undertakings/SOIs;

b. for possible JR (judicial review) v decision (or omission to decide) by:

-SOS (only has jurisdiction on PI ground=17 areas) to decide to issue (or not) an I.N.(intervention notice), or decision (type II error) to support a national champion, when is not necessary. this error is more common and serious, becos it creates a national NM.

-TOP/CMA failure to implement undertakings/SOI etc…. and to follow them up

-CMA (has jurisdiction on both PI or competition grounds…thus, on any areas (of the economy) …. Most MAs are outside the 17 areas, thus notification is voluntary, and most are only reported after taking place!…. this is risky, because CMA could investigate and order the MA to be undone (the merged company must sell very quick a big chunk, usually at a huge loss.

eg: META/Giphy case)

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[mop = SMAP] + ANTICOMPS = CL VIOLATION >> If there is no smap….there is no need to look at anticompetitive effects…THUS:

• STEP 1 <> cocoo’s first step is always to identify the possible existence of smap.
• STEP 2:  WHEN A FIRM IS FOUND TO HAVE SMAP , CMA.EC MUST NOW find that the firm’s conduct has anti-competitive effects

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kneepkens prompts. exs:

• What have competition agencies learned from merger decisions in financial services sectors? How have they dealt with interactions between, and evolution of, financial markets?
• How does state ownership affect competition? Should bringing a number of individual firms under public control be treated as a notifiable “merger operation”?
• How can competition policy seek to improve competitive conditions in the financial sector, such as by reducing switching costs or improving the availability of credit data?
• Should competition authorities extend the conception of consumer welfare to include macroeconomic benefits from ensuring system stability?
− How does the role of competition agencies interact with the role and remit of authorities and regulatorsresponsible for financial services, securities and commodities exchanges, monetary policy, financial stability and accounting standards? What should be the respective responsibilities and scope of coordination between competition agencies and these regulators?

-Should competition agencies develop in-house expertise about financial markets?
− What are the legal and practical impediments to competition agencies and financial sector regulators sharing information and market analysis and working together to formulate policy initiatives and interventions? How best can competition agencies engage in coordinated competition advocacy?
− As the institutions for overseeing and regulating financial markets are improved, how can the policy
goals of market competition and financial system security be best co-ordinated?

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did cma/plc…breach a duty? >> find sqalls (statusquo.allies.victims) >>create DDR (usp.nda) = legal def for plcs that have failed to discl mat facts. >> force plcs to create and send me problem.docs >> adr (med / arb (plc v nation) / wto (nation v nation) >> nda.settlem.offer (part.36 = no.liab.admis)…I MUST SEND THIS OFFER BEFORE CMA DECIDES TO REVIEW…after, i may only offer mediation services (which they must accept if they want to use my legal points…)

Force perpetrators (plc/cam/gov/min/reg/lobbyco) to create PROBLEMDOCS (that i can use later for a better settlement). How?:

send them a DDREP [gives the plc a legal defence v claims for failing to discl mat fact (ex cocon). Brokers/dealers make a good living by finding clean or scrubbable shells [form 10 SB], and arrange their sale (as RMAs).  They have O2DD before they may sell shares…most ipo DDs are bad becos clients prefer speed over quality <>  i will challenge ipo valuations (by invbanks) by using all these basis: shareprice; indcomparables; growingprospects; compelling narrative.   My DDRep will also include:

possibility of newsreporting (reput.harm) and a complaint/claim

are all -spills internalised (by the perpetrator/s)?  /  are any +spills considered (by cmas/regs/gov)?: ex: SUSTUAS: UAS that violate clp, but are cleared/allowed becos wpi>clp.    SUSTUAS are only to be cleared (SHIELD) if: the 4EXEMCONDS are met (101.3 tfeu), or if it’s an ‘Standarisation UA’…..ow, is not a SUSTUA>> o2block UA (ex. if farmers would get unfair prices <> WTO)

torts (victims: wpi/taxpayer/nonlobbyingcompetitors/etc)<> see katrina paper on estimating the harm to nonlobbyingcompetitors.
between matoipo sign&close, did the parties conduct remain as indep.competitors? if not>>breach
Bad regulations?: ex: toohigh (notif) thresholds >> IMS consolidation ?
Mediation (settlem) Offer [ex part36offer.uk=no liab admis settlem offer]…… (i must send the offer prior to a cma decis to review (cma gains sole settlem discretion)….But…in such case, I could still offer Mediation services, that may be accepted if i can bring additional (legal) arguments. Ex: to det the fine amount, did the cma/reg fail to consider: the cocon’s nature. the combined MAS. the geoscope <> MJ. Was the cocon actually implemented (by the plc)? if so, for how long?

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-ECONOMETRICS [statistics capable of empirically evidencing economic relationships.]   <> CLP CONTROLS + (POLICIES=SOSBT)     <>   MERGER CONTROL.  <>  MERGER PROHIBITION (TOBII V CMA)    <>  THREAT TO COMPLAIN TO CMA, FOR FAILURE TO NOTIFY CMA OF A RELEVANT MERGER SITUATION. ….EG. ‘I FOUND AN SLC’ (SLC TEST)

-FLOWCHART + CLIENTEARTH CASE.

– MARKET POWER (MAP: is inv.prop. to consumers’ ability to switch) <> BUYER POWER (BUP)

-IS THERE A CMA DECISION , ON PI GROUNDS,  [SEE .PI GROUNDS SAMPLES TAB.] INCONSISTENT WITH UK/EU’S INTERNATIONAL OBLIGATIONS, (EG PARIS AGREEMENT; CLIMATE CHANGE ACT) ?… IF SO, TO THE EXTENT THAT ART. 2 OR 8 ARE ENGAGED, I CAN CHALLENGE THE DECISION UNDER HRA98, (CASE: MILLER V PRIMER MINSTER 2019) <> .SUSTAINABILITY POST

-BEST . CMA PROMPTING EGS:

-ADP: LOTS OF PROPER COMPETITIVE BEHAVIOUR, BECOMES IMPROPER(adp) WHEN A CO BECOMES DOMINANT… cocoo TARGETs only DOMINANT COS

-MFC AGREEMENTS: (MOST FAVOURED CUSTOMER/MOST FAVOURED NATION)…cocoo TARGETs EVEN NATIONS!

-ILLEGAL MERGERS (PROPOSED OR COMPLETED OR DE FACTO)

-LEGAL MERGERS (PROPOSED OR COMPLETED OR DE FACTO) WHICH REDUCES BOTH CONSUMER CHOICE AND RIVALRY

-COS WITH SIG BUP, BUT INSIG MAP, WHO FAIL TO PASS COMPENSATORY BENEFITS TO THE CONSUMERS

FOC OR ADVICE BOTH PARTIES, ON COURT DECISIONS eg. CAT (WITH PLFs BINDING AND/OR NON BINDING)…. CONTACT THE WINNING PARTY TO SELL MY DUEDILIGENCE (dd) PROPOSED, REMEDIES ETC (IMPLIED THREAT) AND/OR CONTACT LOSING PARTY, TO SELL THEM MY  dd,  ON HOW TO WIN AN APPEAL

IDENTIFY PROPOSED MAs UNDER CMA INVESTIGATION; AND MAs COMPLETED THAT ARE NOT UNDER INVESTIGATION.  WHERE THEY VOLUNTARILY NOTIFIED?

NSI ACT PUBLICATIONS  EU INFO SOURCES  FOIA . eg CMA EXPERTS

These are publications of CMA final orders, on PI  grounds BASED ON THE NSI ACT : THE PI STEPS. :   17 areas = mandatory notification=nsi act) .  THE REST ARE ON CL grounds (voluntary notifications)

*TOP has no power to enforce the SOIs… see the TOP consultation document of 2017

-did cos. fail to comply, after the MA, with the undertakings and SOIs? possible fines, and undoing the merger (at huge loss to company)

– Any undertakings that TOP fail to impose?

-are there MAs that failed a mandatory notification?, if so, the MA is VOID….I WILL ARGUE THAT MA SHOULD HAVE BEEN NOTIFIED, OR, IF NOTIFIED, I WILL ARGUE THAT IT CONTAINED FALSE/MISLEADING INFO.

eg. the proposed MA falls under UK (CMA/SOS) jurisdiction?

eg. are companies undervaluing their annual t.o. (to be below the £1m min.threshold for CMA investigation?)… if so, SOS should still issue I.N. (in PI, if is within the 17 areas)

eg. the target company is targetted precisely because is a newy (that has not yet reached the £1m t.o.) so the MA will not be investigated?….. if so, SOS should still issue I.N. (in PI, if is within the 17 areas)

-MAs should have been blocked, or cleared?,

-is the uk government (SOS) encouraging mergers between national cos, to make a National Champion (NC), using national PI grounds: so that it can compete effectively with china etc?:

PADI will PAP this SOS decision, because national champions are usually NMs(near monopolies)…. also, who should be a nc should be decided on economic strategy grounds, and not by lobbyists (the sad reality). even the CMA resist nc.  ncs should not be created on national PI grounds, because it should only be competitive markets that produce ncs. . Also, if every country supports (using taxpayers cash) their national champions, their relative positions will not change, but taxpayers all over the world will be worse off.  CASE: siemens/alstrom railways. EC banned the proposed MA, despite merkel and macron arguing in favour of the MA as they wrongly (type II error) argued that EU needs a nc.

Every gov. policy has 2 risks:

1/ET1: type I error: suppressing the birth of a nc, when it should be allowed. this error is very unlikely, because is unlikely that a nation needs a champion.

2/ ET2: type II error: supporting a national champion, when is not necessary. this error is more common and serious, becos it creates a national NM.

To answer above questions, cocoo will do these tests:

-TOT (turnover test)=£1m annual t.o. min, to be called-in by CMA for investigation.

-[market share test = SOST (share of supply test: min.25% of supply of goods/services in UK, prior to MA )]

-HMT(hypothetical monopoly test] = SSNIP test : is a test to define [market boundaries = market definition]. it asks: WOULD THE MA ALLOW THEM TO INCREASE PRICE BY 10% SUSTAINABLY?….if so, the MA should be blocked……The SSNIP test allows for loose application: egs:

-the price increase is not over prevailing prices, because they already most likely reflect the NM(near monopoly) power. Thus, it should be over the prices that would prevail if the market was competitive.

-in intermediate goods markets (where there are retail and wholesale transactions) : what’s the extent of passthrough? (the extent which retailers pass the 10% pricerise to consumers.),… and, whats the extent of consumer reaction to the passthrough?  <>  -is not always 10%…it will depend on the market, inflation, past prices, etc.  less that 10% implies that demand is more elastic. and viceversa

-the cellophane phallacy: when monopoly prices prevail, there will appear to be many product substitutes (to the NM products)… BUT, they could be in separate markets. …usa case Dupont: dupont argued that cellophane was not a separate market because there was a high elasticity of demand between cellophane and alluminium foil. But court held that they were separate markets thus cellophane was not a NM, because it only had a small share of the ‘wrappings market’.

-the priceincrease needs to be ‘non-transitory’. most accept that should be min.1 year, but this depends on the market, inflation, past prices, etc.

-what factors det. competitiveness?:

a.intramarket rivalry:  can competitors can act collectively, as a single NM, to constrain prices of the merged company.? if so, the merged co. has low market power.

b.extent of buyer/supplier power:  do buyers have good alternatives to the 10% priceincrease? ; can they negotiate down the price?;

c. rivals dont need to be in a market to affect competition.  the mere threat of entry can affect competition.

-NMs are more likely to introduce innovations (R&D) (to protect their NM). notice that innovation is in a different market to the products.

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-follow these steps to identify Decisions that may result in a competitive advantage and/or in a selective advantage:

1- identify the (FOR = the ‘normal’ tax system applicable in a given Member State), and

2-demonstrate that the tax measure is ‘anormal’ (so that is out of the FOR). the anormality = that it differentiates between cos who are in a comparable factual and legal situation, and such differentiation cannot be justified to find the correct FOR, we need to look at the national rules’ : content, structure and effects:

a/if a national tax measure is inseparable from that nation’s general tax system, the FOR is the nation’s general tax system

b/if a nat.tax.measure is separable from that general system, the FOR is more limited (than the gen.system’s FOR)

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-the CMA has a duty to review steps, on behalf of other international competition authorities…but this duty only applies to the areas of competition, consumer protection and digital markets functions.   In the present case, has the cma a duty to review steps on behalf of other international competition authorities?

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-piin.ec:         ec has full juris to review matos with a ‘eu.dim’….BUT.. Member States can intervene in mergers with an EU dimension: under Article 21(4) of the EUMR, Members may take “appropriate measures” to protect certain legitimate interests, namely, public security, plurality of the media, and prudential rules. Any other public interests must be approved by the ec on a case-by-case basis.

-EU MCR:  apply to all mergers , no matter where in the world the merging companies have their registered office, headquarters, activities or production facilities, if the companies do business within the EU. If the annual turnover of the combined businesses exceeds specified thresholds in terms of global and European sales, the proposed merger must be notified to the EC. Below these thresholds, the MEMBERS’ CMAS may review the merger, under the applicable national mcrs

-ec decis can be challenged in ECJ ….And/or, via a FOC to CAT/TS…   Notifications on EC competition investigations are published in the C series of the Ojeu.  DG website publishes all public information relating to competition.  Selected notifications and decisions are also published in The Common Market Law Reports Antitrust Reports. There may also be press releases, freely available from the EU Press Room…….OJEU  ECJ notices:  a. appeals; b. actions for annulments, of a decision of a eu institution; c. actions for failure to act, or/and to fulfil eu obligations…. by a member state, or eu institution; d. preliminary rulings:  The parties (and interveners), Member States and the EU institution concerened and are invited to make written observations….. the deadline for written observations (two months and ten days after notification). A preliminary ruling is a decision of the ECJ, on the interpretation of Eu law, in response to a request (preliminary reference) from a court or a tribunal of a member state.The ecj’s reply is not merely an opinion, but takes the form of a judgment order. The national court to which it is addressed is bound by the interpretation, and also binds other national courts.  Although such a reference can be made only by a national court, all the parties (even interveners) to the proceedings, the Member States, and the eu institutions may take part in the ecj proceedings.The national court submits questions to the ecj, about the interpretation or validity of a provision of European Union law, generally in the form of a judicial decision in accordance with national procedural rules. A notice is published in the Official Journal. The parties, the Member States and the institutions have two months within which to submit written observations to the ecj

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 IA.search :   IAs(impact.assessms) consider wider issues (such as the impact of a proposed policy on the environment or on competition), Does a given IA provide sufficient support for decision-making ? we use a quality indicator of ‘good’, ‘satisfactory’, ‘weak’ or ‘very weak.     wpis should be considered in every IA and included in the net present value estimate of the true cost of the regulation…..the CMA has recommended that the RPC should have the ability to red-rate an IA if it did not appropriately consider the impact on competition and innovation

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what is the current level of consolidation in the relevant industries ? what are the past, present and proposed mergers and acquisitions directly related to this case? how they are affected by the Decision? For instance, mergers conditionally approved in the past, and those conditions no longer hold? etc

find the Key Overlooked Concerns, to ensure Participation by bringing forth new, underexplored insights highlighting public, consumer, competition, and environmental concerns). examples: Third-Party Intervention: a/Arguments for Intervention: Highlight the need for stricter conditions to eliminate ongoing distortions and advocate for broader environmental funding frameworks. Present unique data or analysis linking the undertaking’s dominance to systemic market failures not adequately addressed in the Commission’s decision.    b/Focus on Public Interest: Emphasize how your participation will bring an underrepresented voice to the proceedings, particularly on the inequitable distribution of environmental and economic benefits

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you are the World’s best competition lawyer. your goal is to find the Truth. browse online and read the attached file, then give Report: Value Chain Analysis and Legal Implications:   KEY COMPONENTS OF THE VALUE CHAIN, Legal (COMPETITION, INVESTMENT, PUBLIC INTEREST, CONSUMER) Violations Identified Through Value Chain Analysis, Recommendations for Legal and Regulatory Action

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could the UK competition and markets authority investigate this potential harms? or have they already investigated them?

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are there any Impacted European Member States?. for example what are the actual and potential Effects on the United Kingdom and UK markets and industries?. Any Broader Concerns for Both the EU and UK?

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Public Interest Harms of the Decision: list those already inflicted , and those that would be inflicted if the decision is not challenged

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briefly give your opinion on the court’s errors of law or procedure that can merit a successful judicial review of the decision

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Fairness and Reasonableness of the Decision

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PROSPECTS OF A SUCCESSFUL APPEAL 

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Evaluation of the Sufficiency of Remedies and Conditions: ex: Are any court-imposed remedies or Conditions or fines or undertakings, Truly Strict, reasonable, proportionate? should they be higher or lower? how could they be challenged?

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go online and read the file i gave you. then, give me a list of Potential or actual infringements of the Rule of Law connected to this case.  Use the counterfactual of whether the relevant court decision is allowed , or not.  which european law mechanism would be best suited to deal with such violations of the rule of law? For instance, the rule of law conditionality mechanism etc 

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give me a list of Potential Investment Law Violations connected to this case. List all past, present and future or potential violations.   Use the counterfactual of whether the relevant court decision is allowed , or not

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give me a detailed analysis of positive and negative externalities, both past, present and future.   estimate  future externalities  using the counterfactual of whether the relevant court decision is allowed , or not

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LIST OF ALL COMPETITIORS , PHYSICAL OR LEGAL PERSONS, THAT ARE ACTUALLY OR POTENTIALLY Harmed BY THE DECISION, the harm that each has suffered, and the estimated harms they would suffer if the relevant decision is allowed to stand

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Consumer Types, Associations, and Civil Services actually Harmed , and the harms they would suffer if the relevant decision is allowed to stand

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Key Competitors, CONCERNS, LEGAL ASSESSMENT

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is the decision related to STATE AID? IF SO, WHAT TYPE?:  NOTIFIED, UNNOTIFIED, ONE-OFF, OR EXEMPTED? IF UNNOTIFED, FROM WHAT SOURCE/S?

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go online and research, then read again the file i attached earlier. then,  tell me if there is a possibility of the existence of actual or potential STATE AID (whether notified or not)?  if so, could it BE UNLAWFUL?: FOLLOW THESE QUESTIONS TO IDENTIFY IF THis case could contain STATE AID and if it COULD BE ILLEGAL:

• Is the aid measure aimed at a well-defined objective of common interest (such as growth, employment, cohesion, protection of the environment, and research and development)?
• Is the measure designed to deliver the objective of common interest – that is, does the aid address a market failure or another objective?
• Are the distortions of competition and effect on trade limited, so that the overall balance is positive?
  • If the aid is not automatically cleared, identify the appropriate clearance mechanism and assess the prospects of the need for notification for the aid package.
  • The State aid process is a dialogue between the Member State and the Commission. A beneficiary and its advisers will need to push hard to ensure appropriate representation.
  • The beneficiary has a clear interest in ensuring that the State aid procedures are followed, since the liability to repay with interest rests solely with the beneficiary.
  • State aid authorisation is handled solely by the Commission. Seek specialist advice early and note that the process is susceptible to high quality advocacy, political pressure and lobbyingther STEPS TO IDENTIFY UNLAWFUL StateAid:
    • Identify the relevant industrial sector for the aid. There are many specialist sectoral state aid regimes: currently and most obviously those for financial institutions, but note also those now available for the real economy generally and those for maritime and rail transport, ports and airports, among others.
    • Identify the basic context for the aid assessment:
    • are you a would-be beneficiary?
    • are you in a mergers and acquisitions/risk assessment scenario?
    • are you a complainant?
    • Is the aid automatically exempted? For example, a bank under one of the national rescue schemes or because the aid is de minimis or covered by a block exemption or other sectoral rules.
    • Can you argue that the measure is not aid?
    • for example, it matches the actions of a market economy investor; or
    • it fulfils the criteria for a public interest service

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PROMPKINGS FOR SA-CASES

-ILLEGAL SA (ISA)=  any aid or resources (kind) granted by a memberstate*, to a privco or pusco, that may pot distort eu’s intratrade clp.

*MEMBERstate, here, means any emanation from that nation. (ex aytos, CCAA, public banks etc)

to be ISA, the SA must give a competitive advantage (to certain UAS, or the prod of certain gws) >> general-SAs or wpi-SAs, cannot be illegal

-SA usually involves some depletion of state resources (ex:tax reductions, exemptions…) but not always (see hungary ad.tax case):

ex: hungary tax case:  Under Hungary’s ad.Tax Act, companies were taxed at a rate depending on their advertisement turnover, using progressive tax rates, ranging from 0% to 50%.   EC:  In a tax system based on a single rate, smaller companies pay less tax than their larger competitors, not just because they have a smaller advertisement turnover, but also becos, due to the progressive rates in the hungarian tax Act, smaller cos pay less ad.tax, even in proportion to their advertisement turnover>> companies with a low turnover get an unfair economic advantage over competitors >> EC: illegal SA >> hungary must refund all these taxes

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-SA goal = nips in the bud any pot birth of a natcham, by keeping a level playing field in eus intrastate trade (internal market= tfeu overriding obj) …HOWEVER, becos to be SA sufficies a POT.clp distortion >> any pot clp disortion can be SA, (even if is not interstate)

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-SA types:

• unnotified (to gc.ec):   cocoo: should have been notified?  >>   ecgc o2BA: is the sa compat with tfeu? >> if not: o2review >>may order that memberstate, to clawback+ints+divestment  from the SA beneficiaries.
• notified (non-exempt):   ecgc o2BA: is the sa compat with tfeu? >> if not: o2review >> may block (the proposed SA)
• exempted= BER (block.exempt.regs) >> SA exemption sources:  if: a/deminimis (SA<200k), or b/ GBER (ex training.aid, sustain.aid; regional aid…)  , or c/sector-specific regs   d/the 4EXCONDS (for matos): if a member.cma clears a cocon-causing mato (notified or not, above thresh or not) is this SA?
• one-off SA granted to rescue or restructure a company in difficulties, which, ow, would go out of bus in short/medium term. Should be the min.nec.amount.    [ex: C.SEGUI: AIRLINE. sanchez….]

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cocoos sources of unnotified SA: (less obvious SA)

None of the following is necessarily unlawful State aid but the presence of such arrangements should alert the participants to the possibility that aid is being granted:

• tax rulings:  ec: a tax ruling may confer a selective advantage upon the concerned taxpayer, where it results in a lowering of that addressee’s tax liability in the Member State as compared to companies in a similar factual and legal situation. Since 2015, the Commission has adopted negative decisions in several cases involving specific tax payers (including the “Apple” case where the Commission ordered Ireland to recover a record 13 billion euros from Irish based entities of the group) and also adopted a decision in a case involving a Member State scheme (the “Belgian excess profits” case).
• public sector equity injections;
• a nations 1leg.2leg, grant… >> result in polluting UAs getting relief from their liab as polluters
• a nations 1leg.2leg, grant… >> result in lower overall costs (for producting and delivering the gws)
• disposals of State-owned assets on highly favourable terms or without a tender process;
• State involvement in loans on favourable terms, reduced interest rates and interest payment holidays;
• State involvement in guarantees against liabilities or losses;
• fiscal measures such as relief from a tax which would otherwise be payable, if not applicable to all companies;
• public sector support to rescue or restructure firms in financial difficulty; and
• public service schemes under which certain undertakings have been entrusted with the operation of services of general economic interest.
• government assistance to a public enterprise preparing for privatisation;
• legislation that protects or guarantees market share; and
• public-private partnerships and other contracts not open to competitive tendering

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how cocoo will enforce SAs that pot violate tfeu

any person (indiv/legal) may trigger a ecgc SA review, by simply filing either a:

• -complaint, or
• -responses to invitations ecgc’s to comment , or
• -appeal to ecj, or
• -BEST: upon EC enforcement notice >> DAMAGES FOC (at nat.level)

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