Considerations for state aid recipients in Ukraine

Considerations for aid recipients

Is there a legal right for businesses to obtain state aid or is the granting of aid completely within the authorities’ discretion?

This depends on the exact state support measure. In some cases, the measure is expressly envisaged by law and can be claimed by a beneficiary fulfilling eligibility criteria. But, on the whole, it is within the discretion of an awarding authority.

What are the main criteria the national authorities will consider before making an award?

Eligibility criteria depends on the exact state support measure. Often the main criterion is whether the potential beneficiary of the aid is active in the industry benefiting from state aid.

What are the main strategic considerations and best practices for successful applications for aid?

Again, this depends on the exact state support measure. In some cases, the measure is expressly envisaged by law and received ‘automatically’ without the need to make any applications (assuming a beneficiary fulfils eligibility criteria). The provider of the aid should also ensure that the aid complies with the Ukrainian state aid law meaning that prior authorisation of the aid may be required.

How may unsuccessful applicants challenge national authorities’ refusal to grant aid?

Generally, refusal of an aid measure may be subject to judicial review.

To what extent is the aid recipient involved in the EU investigation and notification process?

As mentioned, state aid providers bear primary responsibility for ensuring that their policy measures and projects comply with state aid rules. However, beneficiaries of aid may also be notably involved in the notification and investigation process.

For instance, under the State Aid Law, an undertaking intending to obtain an aid measure shall provide extensive information about itself to an aid provider. Additionally, under the AMC Procedure on Notification of State Aid, state aid providers may seek state aid beneficiaries’ participation in the pre-notification consultations with the AMC to provide clarifications on technical or financial details that may be involved in a particular state measure.

Separately, in accordance with the State Aid Law, the AMC can open the formal investigation procedure whenever it finds that authorised aid is being misused. In this case, the aid beneficiary will likely bear the status of the defendant (either alone or with an aid provider) obliged to provide the AMC with all assistance or information needed. To ensure equality of treatment of the parties in this case, such an aid beneficiary will have various corresponding rights, including access to the file and being heard by the AMC.