EUR-Charts

There are new measures on State aid in the form of public service compensation. Accordingly, the last box, entitled “Follow up on Altmark (2003)” must read:

Follow up on Altmark (2003)

• For certain types of public service obligations that do not meet the Altmark conditions: Commission Decision 2012/21/EU on State aid in the form of public service compensation (Art. 107(1) TFEU applies but there is an exemption under Art. 106(2) TFEU; no notification is required) (replaces Decision 2005/842/EC); see also Commission Communication: European Union framework for State aid in the form of public service compensation (2011) and Commission Communication on the application of the European Union State aid rules to compensation granted for the provision of SGEI (2012) and Regulation 360/2012/EU (regarding SGEI; see Chart C46);
• For other cases, with the exception of transport and broadcasting: Commission framework for State aid in the form of public service compensation (2011) (notification is required);
• Transport: in particular Regulation 1370/2007/EC (see Chart C52); broadcasting: Commission Communication on the application of State aid rules to public service broadcasting (2009).

In the 4th row, the box entitled “De minimis rule for state aid”, should read:

De minimis rule for state aid

• General de minimis Regulation 1407/2013 (technically speaking, the de minimis Regulation for state aid is a block exemption based on Regulation 994/98);
• There are also a number of specific de minimis Regulations; e.g. Regulation 360/2012 (SGEI; see Chart C46); Regulation 1408/2013 (agriculture).

E.g. Art. 3 of Regulation 1407/2013:

In the 5th row, on the left hand side, the box entitled “Generally”, should read:

Generally

Aid of ≤ EUR 200,000 over a period of 3 fiscal years is exempted.

In the 5th row, on the right hand side, the box entitled “Specifically for the road transport sector”, should read:

Specifically for the road transport sector

Aid of ≤ EUR 100,000 over a period of 3 fiscal years is exempted.

In the last box entitled “Temporary framework in the economic crisis”, the following should be added:

Temporary framework in the economic crisis

The Commission Communication: Temporary Union framework for State aid measures to support access to finance in the current financial and economic crisis (2011) expired on 31 December 2011:

Based on Art. 107(3)(b) TFEU, the Commission _ considered temporary state aid acceptable if it did not exceed a cash grant of EUR 500,000 per undertaking and if it fulfilled certain further criteria.

Commission Communication on the application, from 1 August 2013, of State aid rules to support measures in favour of banks in the context of the financial crisis (2013): The Commission extends the crisis rules for banks.

The box in the 3rd row, in the middle, entitled “By the State:” must read:

By the State:
• The advantage must be attributable to an EU Member state (rather than e.g. to the EU).
• Can be directly or indirectly, i.e. through public or private bodies established or appointed by the State in order to administer the aid; Kwekerij Gebroeders van der Kooy (1988).

The box in the 3rd row, to the right hand side, must read:

There must be an advantage for “certain undertakings or the production of certain goods” in comparison with other undertakings that are in a comparable legal and factual situation; e.g. Commission v Italy (1974), Azores (2006), Gibraltar (2011).

The box in the 4th row, to the left hand side, entitled “The market economy investor principle”, must read:

The market economy investor principle

There is no state aid if the State action takes place under normal market conditions and terms.

• Test: Would a private investor act likewise, i.e. is the behaviour commercially justified?
• Test first established in Leeuwaarder Papierfabriek (1985), more recently e.g. EDF (2012).

The box in the 5th row, to the left hand side, entitled “Determination of the market value of assets”, must read:

Determination of the market value of assets

• Public auction/procurement: assumption in favour of the highest/lowest price respectively;
• Valuation of assets by an independent appraiser.

_ E.g. in the context of shares: Commission Decision IBZH (2001), Commission Decision UNIPETROL (2004).

The box in the 5th row, entitled “Consequence”, must read:

Consequence

Conduct meeting the above conditions is contrary to EU law (“incompatible with the internal market”, Art. 107(1) TFEU) …
… unless a derogation under Art. 107(2) or (3) TFEU or under Art. 93 TFEU applies (see Chart C52) or the case falls under Art. 106(2) TFEU (see Chart C45).

The very last box (at the bottom) must read:

Notes:

• Even though Art. 107(1) TFEU does not use the term “prohibition”, the ECJ in fact treats it as such; e.g. Commission v France (1969), Holland Malt (2009).

• The Commission has published a number of Guidelines on the application of Art. 107 TFEU in certain, specific contexts; e.g.:

• Guidelines on State aid for rescuing and restructuring firms in difficulty (2004) (there are new Draft Guidelines on state aid for rescuing and restructuring non-financial undertakings in difficulty);
• Guidelines on state aid to promote risk finance investments (2014);
• Guidelines on environmental and energy state aid 2014-2020.

In the 4th row, in the middle, the box should read:

Clarification of Art. 107(3) TFEU through General Block Exemption Regulation 651/2014/EU, adopted on the basis of Regulation 994/98/EC

(Formerly: Regulation_ 800/2008/EC)

In the 5th row, on the left hand side, the box entitled “Generally”, should read:

Generally

Aid of ≤ EUR 200,000 over a period of 3 fiscal years is exempted.

In the 5th row, on the right hand side, the box entitled “Specifically for the road transport sector”, should read:

Specifically for the road transport sector

Aid of ≤ EUR 100,000 over a period of 3 fiscal years is exempted.

In the last box entitled “Temporary framework in the economic crisis”, the following should be added:

Temporary framework in the economic crisis

The Commission Communication: Temporary Union framework for State aid measures to support access to finance in the current financial and economic crisis (2011) expired on 31 December 2011:

Based on Art. 107(3)(b) TFEU, the Commission _ considered temporary state aid acceptable if it did not exceed a cash grant of EUR 500,000 per undertaking and if it fulfilled certain further criteria.

Commission Communication on the application, from 1 August 2013, of State aid rules to support measures in favour of banks in the context of the financial crisis (2013): The Commission extends the crisis rules for banks.

The box in the 3rd row, on the right hand side, entitled “New aid, Art. 108(3) TFEU” must read:

New aid, Art. 108(3) TFEU

Prior notification to the Commission and examination by the Commission; e.g. Lufthansa (2013)

The box in the 5th row, on the right hand side, entitled “Effect of notification” must read:

Effect of notification

• The aid cannot be granted before being approved by the Commission.
• Recovery of unlawful aid: non-notified aid is unlawful and in principle must be paid back; e.g. Deufil (1978), CELF (2008, 2010).
• Following notification, there is a stand-still obligation on the Member States which is enforced by the national courts.

Remove the arrow (dotted line) which links the box in the 5th row, on the right hand side, entitled ” “Incompatible aid”, Art. 7(5) “, to the box in the 6th row, on the right hand side, starting with “Exceptionally, the Council (of Ministers) may […]”.

The box in the 6th row, on the right hand side, starting with “Exceptionally, the Council (of Ministers) may […]” must read:

Art. 108(2) TFEU: in exceptional circumstances, the Council (of Ministers) may decide that aid is to be considered compatible with the internal market in derogation from Art. 107 TFEU or from regulations adopted under Art. 109 TFEU; e.g. in the economic crisis; Commission v Council (2013).

Add a box at the very end (bottom) of the Chart:

With regard to private enforcement, see Chart C56