Advanced Seminar
23rd – 24th February 2017, Berlin
With experts from:
• European Commission, DG Competition, Unit for Infrastructure and Regional aid
• European Commission, Legal Service, AIDE Team (State Aids and Dumping)
• EFTA Surveillance Authority, Competition and State Aid Directorate
• Ministry of Infrastructure and the Environment, Directorate Aviation,
Unit Economy and Aviation Politics, Senior Policy Advisor, the Netherlands
• National Board of Trade, Legal Adviser, Sweden
With an Interactive Workshop:
Financing Infrastructure in Practice – State aid or not?
Brochure
State Aid for Infrastructure Projects
ADVANCED SEMINAR
State Aid for Infrastructure Projects
Staying up to date with the latest provisions for State aid for
infrastructure projects
Infrastructure projects are one of the key areas of European State aid law. The recently
published Notification on the Notion on Aid as well as the General Block Exemption
Regulation (GBER) and Commission Guidlines include rules for infrastructure.
Infrastructure projects are important and large-scale initiatives with high investment
volume and high reputational risks. The application of State aid law is thus essential to
not threaten the project or to avoid financial and legal costs. They are also a key focus of
the Commission. As a result Member States need to expect checks and audits from the
Commission in those projects.
At the core of the regulations is the aspect of economic vs. non-economic purpose of an
infrastructure. If a later economic use of an infrastructure can be expected, already the
building of this infrastructure may be considered an economic activity and therefore State
aid could be involved. A close look at the different State aid levels of owner, operator and
user is therefore crucial to ensure the correct financing of infrastructure and to prevent a
Who is this advanced seminar
for?
Heads of Departments and Units,
Managers, Lawyers, Auditors
and other members of staff from
departments and units such as:
• State Aid Unit / State Aid Control
• Legal Department
• Market and Competition
•Infrastructure
•Transport
• EU law / EU affairs
• Programmes and Projects
• Coordination of EU Projects
• EU Funds / State Aid
• Regional Development
• Funding Programmes
• Public Private Partnership
possible recovery of aid.
What are the specifications in the different sectors of infrastructure?
Each type of infrastructure implies specific legal questions. The definition and
categorisation of local infrastructure remains a challenge for State aid practitioners. In
the area of research and development infrastructure it is crucial to distinguish between
a research project and a science related economic activity. A major question in the field
of State aid for infrastructure projects is the inclusion of sea ports and airports under
the GBER and what are their implications on State aid practice. Financing sport and
multifunctional infrastructure as well as the broadband roll out remain fields of concern
for State aid practitioners. Finally, it is essential to understand the case of Øresund fixed
rail-road link and how it may impact similar projects.
Get the chance to discuss the new challenges and current developments at EU level with
representatives from the European Commission and the EFTA Surveillance Authority as
well as experienced experts from Member States at our seminar.
“A seminar, providing excellent knowledge in State aid matters.”
Nadezhda Hristova, Chief Expert, Real Sector Finance Directorate,
Ministry of Finance, Bulgaria
from authorities such as:
• Ministries of Economy
• Ministries of Regional Development
• Ministries of Finance
• Ministries of Infrastructure
• Ministries of Transport
• Ministries of Spatial Planning
• Ministries of Interior
• State Aid Monitoring Offices
• National Competition Authorities
• Subordinate bodies and agencies
responsible for infrastructure
• Regional and local authorities
responsible for economy, finance
and infrastructure
• Courts of Auditors
• Development Banks and Public
Banks
As well as infrastructure operators, for
instance:
•Ports
• Airports and Airlines
• Sport Stadiums and Arenas
• Roads and Railways
•Broadband
•R&D&I
State aid consultants and lawyers
working with and for the public sector
2
What will you learn in this seminar?
• Which are the latest developments on EU level in the field of State aid for infrastructure
projects?
• How to assess in practice whether an infrastructure project contains an economic
activity
• How can you make sure that infrastructure project financing is done in accordance
with State aid regulations?
• How to treat the relevant levels of owner, operator and user correctly
• What needs to be taken into account when financing infrastructure under SGEI?
• What do the Notice on the Notion of Aid and the General Block Exemption Regulation
(GBER) imply in regards to infrastructure?
• What are the possible consequences of including ports and airports into the GBER?
• What are key challenges for infrastructures in different sectors: R&D, sports,
broadband and local infrastructure?
Your benefits
•
Be well prepared for managing
infrastructure projects and know
which pitfalls to expect and whether
State aid is involved
• Ensure the correct financing of
infrastructure projects according to
State aid regulation requirements
• Gain profound understanding of the
current developments on EU level
in regards to infrastructure financing
• Get the chance to work on case
examples and discuss possible
State aid implications
• Keep up to date with new approaches and measures adopted
by the European Commission
• Benefit from exchanging
experiences with experts and peers
from other EU Member States and
regions
• What are particular concerns for bridges and tunnel projects? Which impact do
the cases of Øresund fixed rail-road link and the Fehrmarn Belt link have on similar
infrastructure projects?
“The best State aid seminar I have attended.”
Iliana Stoeva, Chief Expert, Real Sector Finance
Directorate, Ministry of Finance, Bulgaria
3
PROGRAMME DAY 1
State Aid for Infrastructure Projects
8.30-9.00
Registration and Handout of Seminar Documents
9.00-9.05
Opening Remarks from the European Academy for Taxes, Economics
& Law
9.05-9.30
Welcome Note from the Chair and Round of
Introductions
Antonios Bouchagiar, Member of the Legal Service,
AIDE Team (State Aids and Dumping),
European Commission
9.30-10.30
State Aid for Infrastructure Projects
– Crucial Points
•The relevance of State aid law for infrastructure financing:
Guidelines
•Notice on the Notion on State aid and General Block Exemption
Regulation (GBER)
•When is an infrastructure „commercially exploited“? When is its
use non-economic?
•Are toll-roads the same as airports? Some general considerations
on sectoral similarities and differences
•Which entities could benefit from aid (and how to exclude that
from happening): Aid at owner, operator and user level
Maria Walfridson, Legal Adviser,
National Board of Trade, Sweden
10.30-10.45
Discussion Round
10.45-11.15
Coffee Break and Networking Opportunity
11.15-12.00
Financing Infrastructure under Services of
General Economic Interest (SGEI)
•The definition of SGEI
•The “four Altmark criteria”
•The de minimis rule for State aid
•Compensation under the SGEI framework
•Transfer of the Leipzig-Halle judgement to other sectors
•Act of entrustment and procurement
•The main parameters for the calculation
ANTONIOS BOUCHAGIAR
Member of the Legal Service,
AIDE Team (State Aids
and Dumping),
European Commission
Antonios Bouchagiar is a Member of
the Legal Service of the European
Commission, currently working in the
State aid team. His areas of expertise
include State aid in relation to maritime transport, aviation,
banking, infrastructure, block-exempted aid and regional aid.
He regularly litigates on behalf of the Commission before the
EU Courts in Luxembourg. Prior to joining the Legal Service,
he handled cases of merger control in the Directorate-General
for Competition of the European Commission. Before joining
the Commission, he was an associate lawyer in the antitrust
group of the Brussels offices of Shearman & Sterling LLP
and Howrey LLP. He has published two books on private
enforcement of competition law, as well as various articles in
the fields of competition law, State aid and internal market law.
MARIA WALFRIDSON
Legal Adviser, National Board of
Trade, Sweden
Maria Walfridson is an EU-law specialist
in the Swedish National Board of Trade.
Previously, Maria Walfridson practiced
EU competition law at the European
Commission, the General Court and the
Government Offices of Sweden. As a
State aid coordinator in the Transport division in the Government
Offices, she gained experience in designing State aid regimes
in transport and infrastructure, defending national State aid
measures when complaints to the European Commission and
revising national legislation in order to be in conformity with
EU State aid rules and case-law. Previous to her position at
Ministry of Enterprise, Energy and Communications, Maria
Walfridson investigated State aid cases in the European
Commission and drew up Commission decisions in this field.
She has also experience from dealing with State aids in the
General Court in Luxembourg.
Antonios Bouchagiar, Member of the Legal Service,
AIDE Team (State Aids and Dumping),
European Commission
12.00-12.15
Discussion Round
12.15-13.30
Lunch Break and Networking Opportunity
4
“Very good exchange discussing the latest issues.”
Workshop
13.30-15.00
The Ex-Ante Assessment
Financing Infrastructure in
Practice – State Aid or not?
It is the responsibility of the Member States to abide
by State aid rules. If a Member State fails to recognise
that an aid provided is illegal, it can have very serious
financial consequences. In this workshop the participants
will work on case studies and get the opportunity to train
their ability to decide between legal and illegal aid.
Background from a Member State’s perspective
Determining the existence of aid
Does it have effects on trade?
Will it distort the competition?
Does the infrastructure project fall under
GBER?
Which possible State aid rules might be useful
in order to clear the aid as compatible?
Which information needs to be provided to
the Commission in order to show that the
infrastructure project is in line with the market
economy investor principle (MEIP)?
Which type of notification would be needed and
how long will it take?
Participants work on the case studies in groups, present and
discuss their findings, and will receive practical hints on how
to best proceed with the Commission.
Paul Zeer, Senior Policy Advisor, Unit Economy
and Aviation Politics, Directorate Aviation
and former Policy Advisor, Unit Sea Ports,
Directorate Maritime Affairs,
Ministry of Infrastructure and the Environment,
the Netherlands
15.00-15.30
Coffee Break and Networking Opportunity
FABIAN KAISEN
Deputy Director, Competition
and State Aid Directorate, EFTA
Surveillance Authority
Fabian Kaisen is Deputy Director in the
Competition and State Aid Directorate of
the EFTA Surveillance Authority (ESA),
which carries out State aid control for the
EFTA States under the EEA Agreement.
He has been involved in a number of cases concerning State
aid to infrastructure projects. Before joining ESA, he worked
as a Solicitor (England and Wales) for an international law
firm, focusing on State aid and competition law.
PAUL ZEER
Senior Policy Advisor, Unit
Economy and Aviation Politics,
Directorate Aviation and former
Policy Advisor, Unit Sea Ports,
Directorate Maritime Affairs,
Ministry of Infrastructure and the
Environment, the Netherlands
Paul Zeer is the EU Policy Coordinator at the Directorate
Aviation of the Dutch Ministry of Infrastructure and the
Environment. Previously, on behalf of his Ministry, he was
seconded as a national expert to the European Commission,
DG Competition, where he worked on cases with respect to
State aid to ports. Moreover, he previously worked as a Policy
Advisor on fiscal affairs, EU co-financing, and State aid with
respect to ports and shipping at the Directorate Maritime
Affairs.
15.30-16.15
How to Interpret and Assess Local
Infrastructure Projects
•How to determine whether the financing of local infrastructure
has an effect on trade
•Local infrastructure under the GBER
•Recent decisions
Fabian Kaisen, Deputy Director, Competition and
State Aid Directorate, EFTA Surveillance Authority
16.15-16.30
Discussion Round
16.30-17.15
State Aid for Research and Development
Infrastructure: Distinguishing
(Non)Economic Activities
•Division between economic and non-economic activities
•Safeguards to avoid indirect advantages being granted
•How to apply the guidelines and GBER for clusters and cluster
management
•Technology parks
•Practical issues
Fabian Kaisen, Deputy Director, Competition and
State Aid Directorate, EFTA Surveillance Authority
17.15-17.30
Discussion Round
17.30
End of Day One
5
PROGRAMME DAY 2
State Aid for Infrastructure Projects
9.00-9.15
Welcome Note from the Chair
Antonios Bouchagiar, Member of the Legal Service,
AIDE Team (State Aids and Dumping),
European Commission
9.15-10.00
How does the Extension of GBER Effect
State Aid to Ports and Seaports?
•State aid to Ports – State of play
•Seaports as recipients and as suppliers of State aid
•Recent decisions on investment aid to ports:
The Commission practice
•Inclusion of ports into GBER: What are possible consequences?
•Investment aid versus Operating aid
• Recent cases / decisions: The recent Dutch / Belgian / French tax
cases and the risks for other Member States
•Concluding remarks
Paul Zeer, Senior Policy Advisor, Unit Economy
and Aviation Politics, Directorate Aviation and
former Policy Advisor, Unit Sea Ports, Directorate
Maritime Affairs, Ministry of Infrastructure and the
Environment, the Netherlands
10.00-10.15
Discussion Round
10.15-10.45
Coffee Break and Networking Opportunity
10.45-11.30
Case Study: The Øresund Fixed RailRoad Link and the Fehrmarn Belt Link
Infrastructure State Aid Cases
•The two State aid complaint cases (SA.36558, SA.36662,
SA.38371 and SA.39078)
•Examination and decision by the European Commission:
Economic activity, distortion of competition and compatibility
criteria?
•Pending EU court proceedings
•Key State aid knowledge learning points
ANTONIOS BOUCHAGIAR
Member of the Legal Service,
AIDE Team (State Aids
and Dumping), European
Commission
Antonios Bouchagiar is a Member of
the Legal Service of the European
Commission, currently working in the
State aid team. His areas of expertise
include State aid in relation to maritime transport, aviation,
banking, infrastructure, block-exempted aid and regional aid.
He regularly litigates on behalf of the Commission before the
EU Courts in Luxembourg. Prior to joining the Legal Service,
he handled cases of merger control in the Directorate-General
for Competition of the European Commission. Before joining
the Commission, he was an associate lawyer in the antitrust
group of the Brussels offices of Shearman & Sterling LLP
and Howrey LLP. He has published two books on private
enforcement of competition law, as well as various articles in
the fields of competition law, State aid and internal market law.
PAUL ZEER
Senior Policy Advisor, Unit
Economy and Aviation Politics,
Directorate Aviation and former
Policy Advisor, Unit Sea Ports,
Directorate Maritime Affairs,
Ministry of Infrastructure and the
Environment, the Netherlands
Paul Zeer is the EU Policy Coordinator at
the Directorate Aviation of the Dutch Ministry of Infrastructure
and the Environment. Previously, on behalf of his Ministry,
he was seconded as a national expert to the European
Commission, DG Competition, where he worked on cases
with respect to State aid to ports. Moreover, he previously
worked as a Policy Advisor on fiscal affairs, EU co-financing,
and State aid with respect to ports and shipping at the
Directorate Maritime Affairs.
Paul Zeer, Senior Policy Advisor, Unit Economy
and Aviation Politics, Directorate Aviation and
former Policy Advisor, Unit Sea Ports, Directorate
Maritime Affairs, Ministry of Infrastructure and the
Environment, the Netherlands
11.30-11.45
Discussion Round
“Invaluable in understanding the crucial State aid
issues regarding infrastructure investments.”
6
11.45-12.30
Determining State Aid for Sport and
Multifunctional Infrastructure
•How to identify State aid in sport and multifunctional infrastructure
•Identifying the different levels of potential beneficiaries
•Sport infrastructure in the GBER regulation
•Compatibility assessment outside GBER
Alessandro Amelotti, Case Handler, Unit for
Infrastructure and Regional Aid, DG Competition,
European Commission
12.30-12.45
Discussion Round
12.45-13.45
Lunch Break and Networking Opportunity
13.45-14.30
Public Funding of Airports and Airlines –
The EU Guidelines on State Aid to Airports
and Airlines
ALESSANDRO AMELOTTI
Case Handler for State Aid,
Unit for Infrastructure and
Regional Aid, DG Competition,
European Commission
Alessandro Amelotti has been Official of
the European Commission since 2004.
Currently he is Case Handler for State
Aid at the Unit for Infrastructure and
Regional aid. Previously, he worked first in the Directorate
General for Taxation and Customs Union and then, since 2008
as Case Handler for State aid compliance in the Directorate
General for Competition. Beforehand, Alessandro Amelotti
was for ten years Consultant for the design, management,
analysis and evaluation of regional development projects
conducting feasibility studies for public agencies and private
enterprises as well as market analysis and research in
European economic policies.
•Overview of the EU Guidelines on State aid to Airports and
Airlines
•Airports under the GBER
•Delicate issues: Economic and non-economic activities,
the scope of the public policy remit, incremental costs
•Overview of Commission decisions applying the guidelines
•Relevant case-law and pending court cases
•Implications for other types of infrastructure
Antonios Bouchagiar, Member of the Legal Service,
AIDE Team (State Aids and Dumping),
European Commission
14.30-14.45
Discussion Round
14.45-15.15
Final Discussion on State Aid for
Infrastructure Projects
Antonios Bouchagiar, Member of the Legal Service,
AIDE Team (State Aids and Dumping),
European Commission
15.15-15.45
Coffee Break and Networking Opportunity
15.45
End of Seminar and Handout of Certificates
“Substantive and professional – very useful.”
7
ORGANISATIONAL MATTERS
State Aid for Infrastructure Projects
Date of Event
23rd – 24th February 2017
Booking Number
S-1448
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Event Price
for public administration
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for others
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Status: July 2016