Dr. Michael Schütte
Rechtsanwalt / Avocat (Berlin), établi à Bruxelles
Your Specialist in State aid, Cartel and International Trade law
State aidAssisting clients - private companies, public companies, or governments - with regard to all possible State aid issues. Often, finding a solution that is free of State aid is the highly preferable way of structuring a problem. This may consist of providing a State guarantee or other State financing, of taking a State participation or of letting the company benefit from some other measure. In all cases, however, this must be done in a way that is acceptable to the European Commission, since otherwise, what was believed not to be a State aid would turn out to be an illegal State aid, non-notified, that may even be incompatible with the Common market, and be subject to a recovery order.
Rescue and restructuring aid represent one of the biggest challenges in the field of State aid. It is important to have a coherent restructuring plan, to provide for sufficient own contributions, and to also look into whether compensatory measures are necessary. These hurt, since it means disposing of, or closing, profitable operations. Before anything is proposed to the European Commission, I will work with the company and the national government in finding the optimum way to ensure that the company will be able to pursue its economic activities, whilst always complying with the requirements of European State aid law.
Training aid sounds like an easy case - training employees has positive effects for both the employees and the regions where they are working. Consequently, at first sight, this should be an easy case to present. The European Commission, however, considers that companies should carry out training anyway, even if the employees are learning transferable skills and may even leave the company. Showing that there is an incentive effect, that the company would not carry out the training without the State aid, is the main challenge around this type of State aid.
Research & development aid - like training aid - creates many positive external effects, and one would think that again, supporting this kind of activity with State funds should not be an issue. Again, here, the European Commission looks critically into the scenarios that the company would pursue in the absence of aid, so as to check whether there is an actual incentive effect from granting the aid.
Investment aid is usually granted in the form of regional aid, and from generally approved schemes. If certain thresholds are exceeded, the European Commission takes a closer look at the planned aid, and if the project creates a market share of 25% or more, or adds capacity of 5% or more of the relevant market, the aid may ultimately not be approved. Some industries, like shipbuilding, are subject to further restrictions. I will work with the company to ensure that all information is provided, allowing for a proper definition of the geographic and product market, and to comply with the requirements to have the aid declared compatible.
The recovery of a State aid is ordered when the aid is illegal and not compatible with the Common market under Articles 87 para. 2 or 3 of the EU Treaty. This can only be done in a formal State aid procedure, and it is of utmost important that a company affected by such a formal procedure have proper representation before the European Commission.
If a negative decision of the European Commission cannot be avoided, either denying part of the aid to be approved, or even ordering partial or full recovery of State aid, I advise on whether the decision may successfully be challenged before the European Courts, and represent companies in the application for annulment before the European Court of First Instance or European Court of Justice.
Rescue and restructuring aid represent one of the biggest challenges in the field of State aid. It is important to have a coherent restructuring plan, to provide for sufficient own contributions, and to also look into whether compensatory measures are necessary. These hurt, since it means disposing of, or closing, profitable operations. Before anything is proposed to the European Commission, I will work with the company and the national government in finding the optimum way to ensure that the company will be able to pursue its economic activities, whilst always complying with the requirements of European State aid law.
Training aid sounds like an easy case - training employees has positive effects for both the employees and the regions where they are working. Consequently, at first sight, this should be an easy case to present. The European Commission, however, considers that companies should carry out training anyway, even if the employees are learning transferable skills and may even leave the company. Showing that there is an incentive effect, that the company would not carry out the training without the State aid, is the main challenge around this type of State aid.
Research & development aid - like training aid - creates many positive external effects, and one would think that again, supporting this kind of activity with State funds should not be an issue. Again, here, the European Commission looks critically into the scenarios that the company would pursue in the absence of aid, so as to check whether there is an actual incentive effect from granting the aid.
Investment aid is usually granted in the form of regional aid, and from generally approved schemes. If certain thresholds are exceeded, the European Commission takes a closer look at the planned aid, and if the project creates a market share of 25% or more, or adds capacity of 5% or more of the relevant market, the aid may ultimately not be approved. Some industries, like shipbuilding, are subject to further restrictions. I will work with the company to ensure that all information is provided, allowing for a proper definition of the geographic and product market, and to comply with the requirements to have the aid declared compatible.
The recovery of a State aid is ordered when the aid is illegal and not compatible with the Common market under Articles 87 para. 2 or 3 of the EU Treaty. This can only be done in a formal State aid procedure, and it is of utmost important that a company affected by such a formal procedure have proper representation before the European Commission.
If a negative decision of the European Commission cannot be avoided, either denying part of the aid to be approved, or even ordering partial or full recovery of State aid, I advise on whether the decision may successfully be challenged before the European Courts, and represent companies in the application for annulment before the European Court of First Instance or European Court of Justice.
Cartels
Agreeing on prices, dividing up markets, staying out of each others territories - these are some of the most common and obvious violations of the antitrust rules. Often, company employees believe they stay clean, without violating any such rule, when they simply share with their buddy the latest trends in the markets for their products, and the behavior of their customers.... and quickly, they run afoul of the competition rules.
Assisting and advising the companies in the assessment process, coordinating the necessary review of documents and of interviews, and drafting the leniency application would all be part of the assistance that a client needs. In view of the small structure of my firm, I only provide strategic, high-level advice, and will select, together with the client, experienced teams of antitrust lawyers from larger firms. This is necessary in particular when time is of the essence and many managers need to be interviewed in parallel and many documents have to be reviewed in a short time. I am also willing to merely assist the client in the selection of an appropriate antitrust firm that will represent him in the procedure.
Should a final decision by the European Commission impose a fine for a violation of the antitrust rules and for finding a cartel, I advise on the chances of success for challenging such a decision, and represent the company in an application for annulment before the European Court of First Instance and the European Court of Justice.
Assisting and advising the companies in the assessment process, coordinating the necessary review of documents and of interviews, and drafting the leniency application would all be part of the assistance that a client needs. In view of the small structure of my firm, I only provide strategic, high-level advice, and will select, together with the client, experienced teams of antitrust lawyers from larger firms. This is necessary in particular when time is of the essence and many managers need to be interviewed in parallel and many documents have to be reviewed in a short time. I am also willing to merely assist the client in the selection of an appropriate antitrust firm that will represent him in the procedure.
Should a final decision by the European Commission impose a fine for a violation of the antitrust rules and for finding a cartel, I advise on the chances of success for challenging such a decision, and represent the company in an application for annulment before the European Court of First Instance and the European Court of Justice.
International TradeWhen the European industry notes that imports of products at dumped prices, or from companies who have enjoyed substantial subsidies, are causing material injury, the trade remedies instruments of the European Union can be relied upon. The rules on antidumping and countervailing duties will allow the imposition of duties aiming at eliminating such material injury - provided a complaint has been properly prepared, providing prima facie evidence of dumping or subsidisation, and of material injury (or at least threat of material injury).
I advise the European industry on how to properly prepare a complaint, by collecting the necessary data. I would then draft the complaint and work towards having a procedure before the European Commission initiated. In the investigation, I advise the companies, assisting in the preparation of the questionnaires, and by preparing an injury submission. Towards the end of the investigation, the political elements become important as well, and it is important to seek assistance from the relevant stakeholders and governments.
I do not normally represent the respondent side (i.e. the "dumpers") before the European institutions, except if the company concerned is a subsidiary or affiliate of a company that is part of the Community industry. Furthermore, a European company may find itself involved in an antidumping case abroad - e.g. in India or China. In such cases, I will assist the European industry in defending its interests before the respective authorities, normally in cooperation with local counsel.
In the field of international trade, I cooperate with other law firms elsewhere, in particular in the USA, especially if there are parallel procedures in both the EU and the USA, concerning the same or a similar problem.
The Trade Barrier Instrument is another trade instrument that may assist European industry in trade disputes. This instrument mainly serves at opening other markets. For instance, if a country has introduced certain obstacles that make life of a European exporting company miserable, I will check whether the other country is violating its obligations under the rules of the WTO and the covered agreements. A complaint can be prepared, and if the European Commission can be convinced of the existence of a violation, then it can take action and, for instance, commence proceedings under the WTO Dispute Settlement understanding. I also advise and assist companies as stakeholder in such Dispute Settlement procedures before the WTO.
I advise the European industry on how to properly prepare a complaint, by collecting the necessary data. I would then draft the complaint and work towards having a procedure before the European Commission initiated. In the investigation, I advise the companies, assisting in the preparation of the questionnaires, and by preparing an injury submission. Towards the end of the investigation, the political elements become important as well, and it is important to seek assistance from the relevant stakeholders and governments.
I do not normally represent the respondent side (i.e. the "dumpers") before the European institutions, except if the company concerned is a subsidiary or affiliate of a company that is part of the Community industry. Furthermore, a European company may find itself involved in an antidumping case abroad - e.g. in India or China. In such cases, I will assist the European industry in defending its interests before the respective authorities, normally in cooperation with local counsel.
In the field of international trade, I cooperate with other law firms elsewhere, in particular in the USA, especially if there are parallel procedures in both the EU and the USA, concerning the same or a similar problem.
The Trade Barrier Instrument is another trade instrument that may assist European industry in trade disputes. This instrument mainly serves at opening other markets. For instance, if a country has introduced certain obstacles that make life of a European exporting company miserable, I will check whether the other country is violating its obligations under the rules of the WTO and the covered agreements. A complaint can be prepared, and if the European Commission can be convinced of the existence of a violation, then it can take action and, for instance, commence proceedings under the WTO Dispute Settlement understanding. I also advise and assist companies as stakeholder in such Dispute Settlement procedures before the WTO.
