de minimisaid 1407/2013 regulationec.europa.eu/regional_policy/sources/docgener/informat/...1 de...

1

De minimis aid

1407/2013 Regulation

Stephen MooreExternal expert

Brussels – 2017This training has been organised by EIPA-Ecorys-PwC under the Framework Contract Nr 2013.CE.16 B.AT 044. The opinions expressed are those of the contractor only

and do not represent the EC's official position

Scope of presentation

• Treaty provisions

• Regulation 1407/2013 provisions

• Control tools

This training has been organised by EIPA-Ecorys-PwC under the Framework Contract Nr 2013.CE.16 B.AT 044. The opinions expressed are those of the contractor only and do not

represent the EC's official position

2

Treaty provisionsTFEU

Article 109 Council rights to decide on aidcategories exempted from notification requirement

Article 108 (4) allows EC adopt Regulations relating tothose categories

Article 2 of Council Regulation 2015/1588

Commission Regulation1407/2013

Period of application:

• enter into force on 1 January 2014.

• apply until 31 December 2020 + 6 months

• 1407/2013 – main/industrial de minimis regulation

Others include…

• 360/2012 – Services of General Economic Interest

• 1408/2013 – agriculture

• 717/2014 – fisheries



3

General conditions:

• Aid must be within the Scope of the Regulation (Article 1)

• Maximum amounts detailed in Article 3:

• EUR 200,000 – general maximum

• EUR 100,000 - transport

• Amount must be expressed as a Gross Grant Equivalent (Article 4)

• Must comply with cumulation rules set out in Article 5

• Member State obliged to grant new de minimis aid only afterhaving checked that this will not raise the total amount of deminimis aid above the ceiling and that all other conditions laiddown in Regulation are met.



Excluded sectors (Article 1):

a) the fishery and aquaculture sector, as covered byCouncil Regulation (EC) No 104/2000;

b) the primary production of agricultural products;

c) the sector of processing and marketing ofagricultural products, in the following cases:

(i) where the amount of the aid is fixed on the basis of the priceor quantity of such products purchased from primary producersor put on the market by the undertakings concerned;

(ii) where the aid is conditional on being partly or entirelypassed on to primary producers;



4

Excluded sectors (Article 1):

Undertaking active in both:excluded and included sectors

Separation of activities or distinction of costs

De minimis aid to covered sector

No aid to excluded sectors

Excluded activities (Article 1):

• aid to export-related activities towardsthird countries or Member States

• aid contingent upon the use of domesticover imported goods.



5

Examples of export related activities:

Space rent in shop. Is it in line with Regulation?



Examples of export relative activities:

Exhibition space rent. Is it in line with Regulation requirements?



6

Commission decision (2003/595/EC)

• June 2001, EC became aware of a German scheme which granted aid in respect of the sale and export of products from Mecklenburg-Western Pomerania.

• The objective of the scheme was to develop or recover trans-regional and export markets, which included markets outside Mecklenburg-Western Pomerania and elsewhere in Germany, other Member States and in third countries.

•

• The aid provided was in the form of a non-repayable grant and was introduced without prior notification as a De minimis aid scheme.

Commission decision (2003/595/EC)

• The scheme guidelines comprised of 4 sub programmes:

• A – Market-launch activities;

• B – Participation in fairs and exhibitions in Germany and abroad;

• C – Offices shared abroad; &

• D – Foreign trade assistants.

• A and B fell within the scope of the de minimis regulation.

• C and D were considered to be State aid only in relation to “exports inside the EC, the EEA and countries that have the official status of candidates for accession to the EU.”

• See Article 1(4) of Commission decision (2003/595/EC)

7

Aid amount (Article 3):

Aid to „Single undertaking“ per MS onany 3 fiscal years period:

• up to EUR 200 000

• up to EUR 100 000 (transport sector)

If mixed activities – separation of activities ordistinction of costs!



Mixed activities (Article 3):

Undertaking active in transport and other included sector

Separation of activities or distinction of costs

Aid to other covered sector =EUR 200 000 – aid amount to Transport sector

Transport sector up to EUR 100 000

8

Aid amount (GGE calculation) Article 4:

• Aid shall be expressed as a cash grant.

• Aid amount shall be the gross grant equivalent (GGE) of the aid.

• Aid must be calculated precisely (‘transparent aid’).



Aid amount (GGE calculation) Article 4 :

Transparent aid:

• Grants or interest rate subsidies

• Loans if:a) the beneficiary is not subject to collective insolvency

(large undertakings, shall be in a situation comparableto a credit rating of at least B-);

b) up to EUR 1,000,000 (EUR 500,000 transport) for 5years and collateral covering at least 50 % of loan;

c) GGE has been calculated on the basis of the referencerate applicable at the time of the grant.

See Article 4(3)(a),(b) & (C)



9

Aid amount (GGE calculation) Article 4:

Transparent aid:• Capital injections up to ceiling

• Equity or quasi-equity investments up to ceiling

• Guarantees if:

a) the beneficiary is not subject to collective insolvency (largeundertakings, shall be in a situation comparable to a creditrating of at least B-;

b) up to 80 % of the underlying loan and either the amountguaranteed is EUR 1 500 000 ( EUR 750 000 for transport) for 5years;

c) GGE calculated on the basis of safe-harbour premiums laiddown in a Commission notice, or notified to EC methodologyused.



Aid amount (GGE calculation):

What if ...not possible to calculate GGE?

Article 4

Calculation of gross grant equivalent

“7. Aid comprised in other instruments shall be considered astransparent de minimis aid if the instrument provides for acap ensuring that the relevant ceiling is not exceeded.”



10

Aid granting moment Article 3:

• legal right to receive the aid is conferred on the undertaking under the applicable national legal regime

• irrespective of the date of payment



Single undertaking:

The Court of Justice of the EuropeanUnion has ruled that all entities whichare controlled (on a legal or on a defacto basis) by the same entity shouldbe considered as a single undertaking.

Case C-382/99 Netherlands v Commission [2002] ECR I-5163.



11

Single undertaking (Article 2):

All enterprises having at least one of the following relationships with each other:

a) majority of the shareholders’ or members’ voting rights;

b) right to appoint or remove a majority of the members of theadministrative, management or supervisory body;

c) right to exercise a dominant influence over another enterprise;

d) control, pursuant to an agreement with other shareholders, amajority of shareholders’ or members’ voting rights.



“Single undertaking”:



Enterprise A 10 000 EUR

B

100 000 EUR

C

20 000 EUR

D

70 000 EUR

Relationship between enterprises A, B, C, D fulfils conditions set in the point 2 of article 2 of Regulation:

Maximum aid amount per “single undertaking” is reached: 10 000 EUR+100 000 EUR+20 000 EUR+70 000 EUR = 200 000 EUR.

12




Enterprise A 10 000 EUR

B

100 000 EUR

C

20 000 EUR

D

70 000 EUR

Relationship between enterprises A, B, C, D fulfils conditions set in the point 2 of Article 2 of Regulation:

Maximum aid amount per “single undertaking” is reached: 10 000 EUR+100 000 EUR+ 20 000 EUR+70 000 EUR = 200 000 EUR




Relations through Natural person doesn’t count:

Enterprise A and Enterprise B is not considered “Single undertaking”.

Natural person

(shareholder)

Enterprise A

120 000 EUR

Enterprise B

60 000 EUR

13




Relations set in the point 2 of Article 2 through Natural person involved in economic activity:

Aid amount used per “single undertaking”: 120 000 EUR+ 60 000 EUR= 180 000 EUR

Natural person involved in

economic activity

Enterprise A

120 000 EUR

Enterprise B

60 000 EUR




Enterprises A, B, C, D hold 25% of shares in E and F

Enterprises E and F are not considered as “Single undertaking”

14




Relations through Public body:

“….direct link to the same public body or bodies are not treated as being linked to each other.”

Public body

1

1A

1B

2 3

“Single undertaking” = 1+1A+1B.

Cumulation (Article 5):



The EUR 200,000 ceiling perundertaking is an absolutemaximum for all types of deminimis (except SGEI) aidadded together.

Up to the ceiling set in the de minimis Regulations or GBER.

15

De minimis aid control tools:

• Central de minimis aid register

• De minimis aid measure level check list

• De minimis aid project level check list

• Communication platform between aid grantors

• Single undertaking declaration form

Central register of de minimis aid:

Functionality:



A

50. 000 EUR

B

50.000 EUR

C

100. 000 EUR

De minimisceiling

16




Appraisal Reservation Decision Registration


• Monitoring:

• No obligation before granting the aid, to obtain adeclaration from the undertaking concerned, inwritten or electronic form, about any other de minimisaid received to which this Regulation or other de minimisregulations apply during the previous two fiscal yearsand the current fiscal year.



17

Check lists:

Measure level (aid scheme):

• Aim is to check if the measure is in line with de minimis regulation requirements

Project level:

• Aim is to check if the project is in line with de minimis regulation requirements

De minimis aid cascade:

18

Thanks for

your attention

de minimisaid 1407/2013 regulationec.europa.eu/regional_policy/sources/docgener/informat/...1 de...

Documents