Aid „sui generis“
As long ago as in 2019 the CJEU has refused to accept an aid block – exempted under the Commission´s General Block Exemption Regulation by its own self-assessment as „authorised” and therefore existing aid (see CJEU, judgment of 5.3.2019, Case C-347/17, Eesti Pagar, ECLI:EU:C:2019:172 and CJEU, judgment of 29.7.2019, Case C-654/17 P, BMW ./. Kommission, ECLI:EU:C:2019:634). The view I had expressed for a number of years already that a block – exempted aid could not be qualified as „authorised”, but must moreover be seen as an aid „sui generis“, had then finally been confirmed.
As a consequence the hope entertained by many within the Commission and within the Member States´ authorities that block-exemption would carry the legal certainty so much longed for has evaporated.
The practical impact of this is an exponential rise in formal notifications as well as in applications to grant a so-called „comfort letter”. The GBER conceived as the basis of ultimate legal certainty by mere Member States´ self-assessment is therefore confronted with utter disenchantment.
However, national courts haven´t heard the chime of such disenchantment, as is further explored in an article soon forthcoming (see Achleitner/Bartosch/Bieber, On the exemption of aid under the GBER – legal claim and reality).