# L_2009073EN.01002301.xml

| 19.3.2009 | EN | Official Journal of the European Union | L 73/23 |
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19.3.2009

EN

Official Journal of the European Union

L 73/23

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EFTA SURVEILLANCE AUTHORITY DECISION

No 154/07/COL

of 3 May 2007

amending, for the 63rd time, the procedural and substantive rules in the field of State aid

THE EFTA SURVEILLANCE AUTHORITY (1),

HAVING REGARD to the Agreement on the European Economic Area (2), in particular to Articles 61 to 63 and Protocol 26 thereof,

HAVING REGARD to the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice (3), in particular to Article 24 and Article 5(2)(b) thereof,

WHEREAS under Article 24 of the Surveillance and Court Agreement, the Authority shall give effect to the provisions of the EEA Agreement concerning State aid,

WHEREAS under Article 5(2)(b) of the Surveillance and Court Agreement the Authority shall issue notices or guidelines on matters dealt with in the EEA Agreement, if that Agreement or the Surveillance and Court Agreement expressly so provides or if the Authority considers it necessary,

RECALLING the Procedural and Substantive Rules in the Field of State Aid adopted on 19 January 1994 by the Authority (4),

WHEREAS, Chapter 9 of the State Aid Guidelines, Publication of decisions, has become obsolete due to an amendment of Protocol 3 to the Surveillance and Court Agreement (5),

WHEREAS, due to the adoption of the Authority’s Decision No 195/04/COL (6), the following procedural State Aid Guidelines have become obsolete for the assessment of existing aid and plans to grant new aid:

| — | Chapter 11 of the State Aid Guidelines, Criteria for applying the accelerated clearance procedure, |
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Chapter 11 of the State Aid Guidelines, Criteria for applying the accelerated clearance procedure,

| — | Chapter 13 of the State Aid Guidelines, Rules applicable to cases of cumulation of aid for different purposes, |
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Chapter 13 of the State Aid Guidelines, Rules applicable to cases of cumulation of aid for different purposes,

| — | Annex I to the State Aid Guidelines, Checklist for information to be supplied in State aid notifications to the EFTA Surveillance Authority (7), |
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Annex I to the State Aid Guidelines, Checklist for information to be supplied in State aid notifications to the EFTA Surveillance Authority (7),

| — | Annex II to the State Aid Guidelines, Notification for the use of the accelerated clearance procedure, |
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Annex II to the State Aid Guidelines, Notification for the use of the accelerated clearance procedure,

| — | Annex III to the State Aid Guidelines, Format of detailed annual report, |
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Annex III to the State Aid Guidelines, Format of detailed annual report,

| — | Annex IV to the State Aid Guidelines, Format of simplified annual report, |
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Annex IV to the State Aid Guidelines, Format of simplified annual report,

| — | Annex XIII to the State Aid Guidelines, Standard notification form pursuant to the multisectoral framework on regional aid for large investment projects (8), |
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Annex XIII to the State Aid Guidelines, Standard notification form pursuant to the multisectoral framework on regional aid for large investment projects (8),

| — | Annex XIV to the State Aid Guidelines, Notification form for individual grants of restructuring aid, |
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Annex XIV to the State Aid Guidelines, Notification form for individual grants of restructuring aid,

| — | Annex XV to the State Aid Guidelines, Notification form for rescue aid, |
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Annex XV to the State Aid Guidelines, Notification form for rescue aid,

| — | Annex XVI to the State Aid Guidelines, Additional information ordinarily to be supplied when notifying State aid for environmental purposes under Article 1(3) of Protocol 3 to the Surveillance and Court Agreement, |
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Annex XVI to the State Aid Guidelines, Additional information ordinarily to be supplied when notifying State aid for environmental purposes under Article 1(3) of Protocol 3 to the Surveillance and Court Agreement,

WHEREAS following the adoption of new regional aid guidelines by the Authority’s Decision No 85/06/COL (9) the following chapters of the State Aid Guidelines have become obsolete for the assessment of new plans to grant State aid:

| — | Chapter 25 of the State Aid Guidelines, National Regional Aid, |
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Chapter 25 of the State Aid Guidelines, National Regional Aid,

| — | Chapter 25A of the State Aid Guidelines, Review of the guidelines on national regional aid for the period after 1 January 2007, |
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Chapter 25A of the State Aid Guidelines, Review of the guidelines on national regional aid for the period after 1 January 2007,

| — | Chapter 26A of the State Aid Guidelines, Multisectoral Framework on regional aid for large investment projects, now incorporated in the new Regional Aid Guidelines, |
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Chapter 26A of the State Aid Guidelines, Multisectoral Framework on regional aid for large investment projects, now incorporated in the new Regional Aid Guidelines,

| — | Annex X to the State Aid Guidelines, Net grant equivalent of investment aid, |
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Annex X to the State Aid Guidelines, Net grant equivalent of investment aid,

| — | Annex XI to the State Aid Guidelines, Aid to offset additional transport costs in regions qualifying for exemption under Article 61(3)(c) on the basis of the population density test, |
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Annex XI to the State Aid Guidelines, Aid to offset additional transport costs in regions qualifying for exemption under Article 61(3)(c) on the basis of the population density test,

| — | Annex XII to the State Aid Guidelines, Method of determining the ceilings on the population covered by the 61(3)(c) derogation, |
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Annex XII to the State Aid Guidelines, Method of determining the ceilings on the population covered by the 61(3)(c) derogation,

WHEREAS the following substantive State aid provisions need revision (10):

| — | Chapter 10A, State aid and risk capital, has been replaced by Chapter 10B, State aid to promote risk capital investments in small and medium-sized enterprises, following the adoption of the Authority’s Decision No 313/06/COL (11), |
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Chapter 10A, State aid and risk capital, has been replaced by Chapter 10B, State aid to promote risk capital investments in small and medium-sized enterprises, following the adoption of the Authority’s Decision No 313/06/COL (11),

| — | Chapter 24 of the State Aid Guidelines, Aid to non-ECSC steel industries, became obsolete with the adoption of the Authority’s Decision No 263/02/COL (12) introducing Chapter 26A, Multisectoral framework on regional aid for large investment projects, |
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Chapter 24 of the State Aid Guidelines, Aid to non-ECSC steel industries, became obsolete with the adoption of the Authority’s Decision No 263/02/COL (12) introducing Chapter 26A, Multisectoral framework on regional aid for large investment projects,

| — | Chapter 29 of the State Aid Guidelines, General investment aid schemes (13), was only relevant in the context of the adoption of the EEA Agreement, |
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Chapter 29 of the State Aid Guidelines, General investment aid schemes (13), was only relevant in the context of the adoption of the EEA Agreement,

| — | Annex V to the State Aid Guidelines, Authorizable range of aid for SMEs, by size of company and location, is outdated and no longer applicable, |
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Annex V to the State Aid Guidelines, Authorizable range of aid for SMEs, by size of company and location, is outdated and no longer applicable,

WHEREAS it is desirable in this process of revising the State Aid Guidelines to incorporate the Notice issued by the Commission of the European Communities on the determination of the applicable rules for the assessment of unlawful State aid (14), although the Authority has already, on a number of occasions, referred to it,

WHEREAS this Notice is also of relevance for the European Economic Area,

WHEREAS uniform application of the EEA State aid rules is to be ensured throughout the European Economic Area,

WHEREAS, according to point II under the heading ‘GENERAL’ at the end of Annex XV to the EEA Agreement, the Authority, after consultation with the Commission, is to adopt acts corresponding to those adopted by the European Commission,

HAVING consulted the European Commission,

RECALLING that the Authority has consulted the EFTA States Iceland, Liechtenstein and Norway on 29 March 2007 on the subject,

HAS ADOPTED THIS DECISION:

Article 1

The State Aid Guidelines shall be amended by deleting chapters 9, 10A, 11, 13, 24, 25, 25A, 26A and 29 as well as Annexes I (with the exception of Section III on complaints) to V and X to XVI.

Section III of Annex I and Annexes VIII and IX will be incorporated at the end of the text of the Chapter on Complaints — form for the submission of complaints concerning alleged unlawful State aid, Chapter on Aid to maritime transport and Chapter on Short-term export-credit insurance of the State Aid Guidelines, respectively.

Annex I to this Decision lists all deleted chapters and Annexes.

Article 2

The State Aid Guidelines shall also be amended by introducing a new Chapter on the applicable rules for the assessment of unlawful State aid. The new Chapter is contained in Annex II to this Decision.

Article 3

The Chapters of the State Aid Guidelines will not be numbered. The new structure of the Guidelines is shown for information purposes in Annex III to this Decision.

The text of the State Aid Guidelines will be updated accordingly. No reference will be made to the number of the chapter but to the title of the guidelines with regard to cross-references to still existing chapters. With regard to cross-references to deleted chapters, the number of the former chapter will be maintained (15).

Article 4

The EFTA States shall be informed by means of a letter, including a copy of this Decision and including the Annexes.

Article 5

The European Commission shall be informed, in accordance with point (d) of Protocol 27 of the EEA Agreement, by means of a copy of this Decision, including the Annexes.

Article 6

This Decision, including Annexes I to III, shall be published in the EEA Section of and in the EEA Supplement to the Official Journal of the European Union.

Article 7

Only the English text is authentic.

Done at Brussels, 3 May 2007.

For the EFTA Surveillance Authority

Bjørn T. GRYDELAND

President

Kurt JAEGER

College Member

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(1)  Hereinafter referred to as ‘the Authority’.

1

(2)  Hereinafter referred to as ‘the EEA Agreement’.

2

(3)  Hereinafter referred to as ‘the Surveillance and Court Agreement’.

3

(4)  Guidelines on the application and interpretation of Articles 61 and 62 of the EEA Agreement and Article 1 of Protocol 3 to the Surveillance and Court Agreement, adopted and issued by the EFTA Surveillance Authority on 19 January 1994, published in OJ L 231, 3.9.1994, p. 1, and in EEA Supplements 3.9.1994, No 32. The Guidelines were last amended on 7 February 2007 with Decision No 14/07/COL, not yet published. Hereinafter referred to as the State Aid Guidelines. The State Aid Guidelines are available on the Authority’s website.

4

(5)  Agreement between the EFTA States to amend Protocol 3 signed on 10 December 2001 (date of entry into force: 28 August 2003).

5

(6)  Decision No 195/04/COL of 14 July 2004 on the implementing provisions referred to under Article 27 in Part II of Protocol 3 to the Agreement between the EFTA States on the establishment of a Surveillance Authority and a Court of Justice (OJ L 139, 25.5.2006, p. 37).

6

(7)  With the exception of Section III, which contains the complaint form.

7

(8)  New notification forms for regional aid have been adopted by Authority’s Decision No 387/06/COL of 13 December 2006 amending College Decision No 195/04/COL on the implementing provisions referred to under Article 27 in Part II of Protocol 3 to the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice as regards the standard forms for notification of aid, not yet published in the EEA Section of and in the EEA Supplement to the Official Journal of the European Union.

8

Official Journal of the European Union

(9)  EFTA Surveillance Authority Decision of 6 April 2006 amending, for the fifty-sixth time, the procedural and substantive rules in the field of State aid by introducing a new Chapter 25.B: National Regional Aid 2007 to 2013, not yet published. Available on the Authority’s website.

9

(10)  These rules are no longer applicable for the assessment of new plans to grant State aid.

10

(11)  EFTA Surveillance Authority Decision No 313/06/COL amending, for the fifty-ninth time, the procedural and substantive rules in the field of State aid by introducing a new Chapter 10.B: State aid to promote risk capital investments in small and medium-sized enterprises, not yet published. Available on the Authority’s website.

11

(12)  EFTA Surveillance Authority Decision No 263/02/COL of 18 December 2002 amending for the thirty-sixth time the Procedural and Substantive Rules in the Field of State Aid by introducing a new Chapter 26A: Multisectoral framework on regional aid for large investment projects (OJ L 139, 25.5.2006, p. 8).

12

(13)  Dates from 1994 and states that general investment aid schemes are incompatible with the functioning of the EEA Agreement. Although the EFTA States should have brought them into line with the EEA Agreement under their general obligation to take all appropriate measures to ensure fulfilment of the obligations arising out of the EEA Agreement (Article 3), some EFTA State might still apply such schemes. Thus it sets out the rules which trigger a notification of individual cases of application of such schemes. It partly refers to a letter from the Commission to the Member States SG(79) D/10478 of 14 September 1979 which was incorporated as point 32 into Annex XV to the EEA Agreement.

13

(14)  
  OJ C 119, 22.5.2002, p. 22.

14

(15)  The consolidated version of the State Aid Guidelines is available on the Authority’s website: http://www.eftasurv.int/

15

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ANNEX I

SECTION A —   CHAPTERS DELETED FROM THE STATE AID GUIDELINES

| Title | Chapter number |
| --- | --- |
| Publication of decisions | 9 |
| State aid and risk capital | 10A (*1) |
| Criteria for applying the accelerated clearance procedure | 11 |
| Rules applicable to cases of cumulation of aid for different purposes | 13 |
| Aid to non-ECSC steel industries | 24 |
| National regional aid | 25 (*1) |
| Review of the guidelines on national regional aid for the period after 1 January 2007 | 25A (*1) |
| Multisectoral framework on regional aid for large investment projects | 26A (*1) |
| General investment aid schemes | 29 |

Title

Chapter number

Publication of decisions

9

State aid and risk capital

10A (*1)

Criteria for applying the accelerated clearance procedure

11

Rules applicable to cases of cumulation of aid for different purposes

13

Aid to non-ECSC steel industries

24

National regional aid

25 (*1)

Review of the guidelines on national regional aid for the period after 1 January 2007

25A (*1)

Multisectoral framework on regional aid for large investment projects

26A (*1)

General investment aid schemes

29

SECTION B —   ANNEXES DELETED FROM THE STATE AID GUIDELINES

Annexes I (with the exception of Section III on complaints) to V and X to XVI have been deleted.

Former Section III of Annex I, Annex VIII and IX have been incorporated at the end of the text of the relevant chapter (Chapter on Complaints — form for the submission of complaints concerning alleged unlawful State aid, Chapter on Aid to maritime transport and Chapter on Short-term export-credit insurance of the State Aid Guidelines respectively).

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(*1)  These chapters might still be relevant for the assessment of unlawful aid and are therefore still available on the Authority’s website (list of deleted chapters).

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ANNEX II

NEW CHAPTER OF THE STATE AID GUIDELINES

APPLICABLE RULES FOR THE ASSESSMENT OF UNLAWFUL STATE AID

A number of instruments approved by the EFTA Surveillance Authority (hereinafter ‘The Authority’) over the years contain a provision to the effect that unlawful State aid, i.e. aid put into effect in contravention of Article 1(3) in Part I of Protocol 3 to the Surveillance and Court Agreement (1), shall be assessed in accordance with the texts in force at the time when the aid was granted. This is, for example, the case for the Chapter of the Authority’s State Aid Guidelines on State aid for environmental protection.

For the purpose of transparency and legal certainty, the Authority informs the EFTA States and third parties that it has decided to continue to apply the same rule in respect of all instruments indicating how the Authority will exercise its discretion in order to assess the compatibility of State aid with the functioning of the EEA Agreement. Therefore, the Authority shall always assess the compatibility of unlawful State aid with the functioning of the EEA Agreement in accordance with the substantive criteria set out in any instrument in force at the time when the aid was granted.

This is without prejudice to the more specific rules contained in the Chapter of the Authority’s State Aid Guidelines on State aid for rescuing and restructuring firms in difficulty.

This is without prejudice to the interpretation of Acts in the field of State aid, incorporated into the EEA Agreement.

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(1)  Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice, referred to as the Surveillance and Court Agreement.

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ANNEX III

NEW STRUCTURE OF THE STATE AID GUIDELINES

| Title | Former chapter |
| --- | --- |
| Amendments |
| Table of contents |
| Part I:   Preface |
| Introduction | 1 |
| Legal basis and general provisions | 2 |
| Part II:   Procedural rules |
| Applicable rules for the assessment of unlawful State aid | |
| Co-operation between national courts and the EFTA Surveillance Authority in the State aid field | 9A |
| Complaints — form for the submission of complaints concerning alleged unlawful State aid | 9B |
| Professional secrecy in State aid decisions | 9C |
| Part III:   Horizontal aid rules |
| Aid to micro, small and medium-sized enterprises (SMEs) | 10 |
| National regional aid 2007-2013 | 25B |
| State aid to promote risk capital investments in small and medium-sized enterprises | 10B |
| Aid for research and development and innovation | 14 |
| Aid for environmental protection | 15 |
| Aid for rescuing and restructuring firms in difficulty | 16 |
| Part IV:   Sector specific rules |
| Methodology for analysing State aid linked to stranded costs | 21 |
| Rescue and restructuring aid and closure aid for the steel sector | 22 |
| Aid to maritime transport | 24A |
| State aid to shipbuilding | 24B |
| The application of the State aid rules to public service broadcasting | 24C |
| Aid to the aviation sector | 30 |
| Financing of airports and start up aid to airlines departing from regional airports | 30A |
| Aid to shipbuilding granted as development assistance to a developing country | 31 |
| Part V:   Specific aid instruments |
| State guarantees | 17 |
| Short-term export credit insurance | 17A |
| Application of State aid rules to measures relating to direct business taxation | 17B |
| State aid elements in sales of land and buildings by public authorities | 18B |
| Part VI:   Rules on State ownership of enterprises, aid to public enterprises and services of general economic interest |
| State aid in the form of public service compensation | 18C |
| Public authorities holdings | 19 |
| Application of State aid provisions to public enterprises in the manufacturing sector | 20 |
| Part VII:   Others |
| Conversion between national currencies and the euro | 33 |
| Reference and discount rates and interest rates to be applied for the recovery of unlawful aid | 34 |

Title

Former chapter

Amendments

Table of contents

Preface

Introduction

1

Legal basis and general provisions

2

Procedural rules

Applicable rules for the assessment of unlawful State aid

Co-operation between national courts and the EFTA Surveillance Authority in the State aid field

9A

Complaints — form for the submission of complaints concerning alleged unlawful State aid

9B

Professional secrecy in State aid decisions

9C

Horizontal aid rules

Aid to micro, small and medium-sized enterprises (SMEs)

10

National regional aid 2007-2013

25B

State aid to promote risk capital investments in small and medium-sized enterprises

10B

Aid for research and development and innovation

14

Aid for environmental protection

15

Aid for rescuing and restructuring firms in difficulty

16

Sector specific rules

Methodology for analysing State aid linked to stranded costs

21

Rescue and restructuring aid and closure aid for the steel sector

22

Aid to maritime transport

24A

State aid to shipbuilding

24B

The application of the State aid rules to public service broadcasting

24C

Aid to the aviation sector

30

Financing of airports and start up aid to airlines departing from regional airports

30A

Aid to shipbuilding granted as development assistance to a developing country

31

Specific aid instruments

State guarantees

17

Short-term export credit insurance

17A

Application of State aid rules to measures relating to direct business taxation

17B

State aid elements in sales of land and buildings by public authorities

18B

Rules on State ownership of enterprises, aid to public enterprises and services of general economic interest

State aid in the form of public service compensation

18C

Public authorities holdings

19

Application of State aid provisions to public enterprises in the manufacturing sector

20

Others

Conversion between national currencies and the euro

33

Reference and discount rates and interest rates to be applied for the recovery of unlawful aid

34

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