# Council Regulation (EU) No 734/2013 (repealed)Show full title

Council Regulation (EU) No 734/2013 of 22 July 2013 amending Regulation (EC) No 659/1999 laying down detailed rules for the            application of Article 93 of the EC Treaty (Text with EEA relevance) (repealed)         

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U.K.

# Council Regulation (EU) No 734/2013                     

# of 22 July 2013

# amending Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty

# (Text with EEA relevance) (repealed)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 109 thereof,

Having regard to the proposal from the European Commission,

Having regard to the opinion of the European Parliament,

Whereas:

(1)In the context of a thorough modernisation of State aid rules, to contribute both to the implementation of the Europe 2020                              strategy for growth(1) and to budgetary consolidation, Article 107 of the Treaty on the Functioning of the European Union (TFEU) should be applied                              effectively and uniformly throughout the Union. Regulation (EC) No 659/1999(2) codified and reinforced the Commission’s previous practice of increasing legal certainty and supporting the development of                              State aid policy in a transparent environment. However, in the light of the experience gained in its application and of recent                              developments such as the enlargement of the Union and the economic and financial crisis, certain aspects of Regulation (EC)                              No 659/1999 should be amended in order to enable the Commission to be more effective.

(2)In order to assess the compatibility with the internal market of any notified or unlawful State aid for which the Commission                              has exclusive competence under Article 108 of the TFEU, it is appropriate to ensure that the Commission has the power, for                              the purposes of enforcing the State aid rules, to request all necessary market information from any Member State, undertaking                              or association of undertakings whenever it has doubts as to the compatibility of the measure concerned with the Union rules,                              and has therefore initiated the formal investigation procedure. In particular, the Commission should use this power in cases                              in which a complex substantive assessment appears necessary. In deciding whether to use this power, the Commission should                              take due account of the duration of the preliminary investigation.

(3)For the purpose of assessing the compatibility of an aid measure after the initiation of the formal investigation procedure,                              in particular as regards technically complex cases subject to substantive assessment, the Commission should be able, by simple                              request or by decision, to require any Member State, undertaking or association of undertakings to provide all market information                              necessary for completing its assessment, if the information provided by the Member State concerned during the course of the                              preliminary investigation is not sufficient, taking due account of the principle of proportionality, in particular for small                              and medium-sized enterprises.

(4)In the light of the special relationship between aid beneficiaries and the Member State concerned, the Commission should be                              able to request information from an aid beneficiary only in agreement with the Member State concerned. The provision of information                              by the beneficiary of the aid measure in question does not constitute a legal basis for bilateral negotiations between the                              Commission and the beneficiary in question.

(5)The Commission should select the addressees of information requests on the basis of objective criteria appropriate to each                              case, while ensuring that, when the request is addressed to a sample of undertakings or associations thereof, the sample of                              respondents is representative within each category. The information sought should consist, in particular, of factual company                              and market data and facts-based analysis of the functioning of the market.

(6)The Commission, as the initiator of the procedure, should be responsible for verifying both the information transmission by                              the Member States, undertakings or associations of undertakings, and the purported confidentiality of the information to be                              disclosed.

(7)The Commission should be able to enforce compliance with the requests for information it addresses to any undertaking or association                              of undertakings, as appropriate, by means of proportionate fines and periodic penalty payments. In setting the amounts of                              fines and periodic penalty payments, the Commission should take due account of the principles of proportionality and appropriateness,                              in particular as regards small and medium-sized enterprises. The rights of the parties requested to provide information should                              be safeguarded by giving them the opportunity to make known their views before any decision imposing fines or periodic penalty                              payments is taken. The Court of Justice of the European Union should have unlimited jurisdiction with regard to such fines                              and periodic penalties pursuant to Article 261 of the TFEU.

(8)Taking due account of the principles of proportionality and appropriateness, the Commission should be able to reduce the periodic                              penalty payments or waive them entirely, when addressees of requests provide the information requested, albeit after the expiry                              of the deadline.

(9)Fines and periodic penalty payments are not applicable to Member States, since they are under a duty to cooperate sincerely                              with the Commission in accordance with Article 4 of the Treaty on European Union (TEU), and to provide the Commission with                              all information required to allow it to carry out its duties under Regulation (EC) No 659/1999.

(10)In order to safeguard the rights of defence of the Member State concerned, it should be provided with copies of the requests                              for information sent to other Member States, undertakings or associations of undertakings, and be able to submit its observations                              on the comments received. It should also be informed of the names of the undertakings and the associations of undertakings                              requested, to the extent that these entities have not demonstrated a legitimate interest in the protection of their identity.

(11)The Commission should take due account of the legitimate interests of undertakings in the protection of their business secrets.                              It should not be able to use confidential information provided by respondents, which cannot be aggregated or otherwise be                              anonymised, in any decision unless it has previously obtained their agreement to disclose that information to the Member State                              concerned.

(12)In cases where information marked as confidential does not seem to be covered by obligations of professional secrecy, it is                              appropriate to establish a mechanism by which the Commission can decide the extent to which such information can be disclosed.                              Any such decision to reject a claim that information is confidential should indicate a period at the end of which the information                              will be disclosed, so that the respondent can make use of any judicial protection available to it, including any interim measure.

(13)The Commission should be able, on its own initiative, to examine information on unlawful aid, from whatever source, in order                              to ensure compliance with Article 108 of the TFEU, and in particular with the notification obligation and standstill clause                              laid down in Article 108(3) of the TFEU, and to assess the compatibility of an aid with the internal market. In that context,                              complaints are an essential source of information for detecting infringements of the Union rules on State aid.

(14)To improve the quality of the complaints submitted to the Commission, and at the same time increase transparency and legal                              certainty, it is appropriate to define the conditions that a complaint should fulfil in order to put the Commission in possession                              of information regarding alleged unlawful aid and set in motion the preliminary examination. Submissions not meeting those                              conditions should be treated as general market information, and should not necessarily lead to *ex officio* investigations.

(15)Complainants should be required to demonstrate that they are interested parties within the meaning of Article 108(2) of the                              TFEU and of Article 1(h) of Regulation (EC) No 659/1999. They should also be required to provide a certain amount of information                              in a form that the Commission should be empowered to define in an implementing provision. In order not to discourage prospective                              complainants, that implementing provision should take into account that the demands on interested parties for lodging a complaint                              should not be burdensome.

(16)For reasons of legal certainty, it is appropriate to establish limitation periods for the imposition and enforcement of fines                              and periodic penalty payments.

(17)In order to ensure that the Commission addresses similar issues in a consistent manner across the internal market, it is appropriate                              to complete the existing powers of the Commission by introducing a specific legal basis to launch investigations into sectors                              of the economy or into certain aid instruments across several Member States. For reasons of proportionality and in the light                              of the high administrative burden entailed by such investigations, sector inquiries should be carried out only when the information                              available substantiates a reasonable suspicion that State aid measures in a particular sector could materially restrict or                              distort competition within the internal market in several Member States, or that existing aid measures in a particular sector                              in several Member States are not, or are no longer, compatible with the internal market. Such inquiries would enable the Commission                              to deal in an efficient and transparent way with horizontal State aid issues and to obtain an *ex ante* overview of the sector concerned.

(18)Consistency in the application of the State aid rules requires that arrangements be established for cooperation between the                              courts of the Member States and the Commission. Such cooperation is relevant for all courts of the Member States that apply                              Article 107(1) and Article 108 of the TFEU. In particular, national courts should be able to ask the Commission for information                              or for its opinion on points concerning the application of State aid rules. The Commission should also be able to submit written                              or oral observations to courts which are called upon to apply Article 107(1) or Article 108 of the TFEU. When assisting national                              courts in this respect, the Commission should act in accordance with its duty to defend the public interest.

(19)Those observations and opinions of the Commission should be without prejudice to Article 267 of the TFEU and not legally bind                              the national courts. They should be submitted within the framework of national procedural rules and practices including those                              safeguarding the rights of the parties, in full respect of the independence of the national courts. Observations submitted                              by the Commission on its own initiative should be limited to cases that are important for the coherent application of Article                              107(1) or Article 108 of the TFEU, in particular to cases which are significant for the enforcement or the further development                              of Union State aid case law.

(20)In the interests of transparency and legal certainty, information on Commission decisions should be made public. It is therefore                              appropriate to publish decisions to impose fines or periodic penalty payments, given that they affect the interests of the                              sources concerned. The Commission, when publishing its decisions, should respect the rules on professional secrecy, including                              the protection of all confidential information and personal data, in accordance with Article 339 of the TFEU.

(21)The Commission, in close liaison with the Advisory Committee on State aid, should be able to adopt implementing provisions                              laying down detailed rules concerning the form, content and other criteria of the complaints submitted in accordance with                              Regulation (EC) No 659/1999.

(22)Regulation (EC) No 659/1999 should therefore be amended accordingly,

HAS ADOPTED THIS REGULATION:

# Article 1U.K.

Regulation (EC) No 659/1999 is amended as follows:

the title of the Regulation is replaced by the following:

**‘COUNCIL REGULATION (EC) No 659/1999 OF 22 MARCH 1999 LAYING DOWN DETAILED RULES FOR THE APPLICATION OF ARTICLE 108 OF THE                                    TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION’;**

the title of Article 5 is replaced by the following:

‘Request for information made to the notifying Member State’;                           

the following Articles are inserted:

## ‘Article 6aRequest for information made to other sources

1.After the initiation of the formal investigation procedure provided for in Article 6, in particular as regards technically                                    complex cases subject to substantive assessment, the Commission may, if the information provided by a Member State concerned                                    during the course of the preliminary investigation is not sufficient, request any other Member State, an undertaking or an                                    association of undertakings to provide all market information necessary to enable the Commission to complete its assessment                                    of the measure at stake taking due account of the principle of proportionality, in particular for small and medium-sized enterprises.                           

2.The Commission may request information only:                           

(a)if it is limited to formal investigation procedures that have been identified by the Commission as being ineffective to date;                                    and                           

(b)in so far as aid beneficiaries are concerned, if the Member State concerned agrees to the request.                           

3.The undertakings or associations of undertakings providing information following a Commission’s request for market information                                    based on paragraphs 6 and 7 shall submit their answer simultaneously to the Commission and to the Member State concerned,                                    to the extent that the documents provided do not include information that is confidential vis-á-vis that Member State.                           

The Commission shall steer and monitor the information transmission between the Member States, undertakings or associations                                 of undertakings concerned, and verify the purported confidentiality of the information transmitted.                           

4.The Commission shall request only information that is at the disposal of the Member State, undertaking or association of undertakings                                    concerned by the request.                           

5.Member States shall provide the information on the basis of a simple request and within a time limit prescribed by the Commission                                    which should normally not exceed one month. Where a Member State does not provide the information requested within that period                                    or provides incomplete information, the Commission shall send a reminder.                           

6.The Commission may, by simple request, require an undertaking or an association of undertakings to provide information. Where                                    the Commission sends a simple request for information to an undertaking or an association of undertakings, it shall state                                    the legal basis and the purpose of the request, specify what information is required and prescribe a proportionate time limit                                    within which the information is to be provided. It shall also refer to the fines provided for in Article 6b(1) for supplying                                    incorrect or misleading information.                           

7.The Commission may, by decision, require an undertaking or an association of undertakings to provide information. Where the                                    Commission, by decision, requires an undertaking or an association of undertakings to supply information, it shall state the                                    legal basis, the purpose of the request, specify what information is required and prescribe a proportionate time limit within                                    which the information is to be provided. It shall also indicate the fines provided for in Article 6b(1) and shall indicate                                    or impose the periodic penalties payments provided for in Article 6b(2), as appropriate. In addition, it shall indicate the                                    right of the undertaking or association of undertakings to have the decision reviewed by the Court of Justice of the European                                    Union.                           

8.When issuing a request under paragraph 1 or 6, or adopting a decision under paragraph 7, the Commission shall also simultaneously                                    provide the Member State concerned with a copy thereof. The Commission shall indicate the criteria by which it selected the                                    recipients of the request or decision.                           

9.The owners of the undertakings or their representatives, or, in the case of legal persons, companies, firms or associations                                    having no legal personality, the persons authorised to represent them by law or by their constitution, shall supply on their                                    behalf the information requested or required. Persons duly authorised to act may supply the information on behalf of their                                    clients. The latter shall nevertheless be held fully responsible if the information supplied is incorrect, incomplete or misleading.                           

## Article 6bFines and periodic penalty payments

1.The Commission may, if deemed necessary and proportionate, impose by decision on undertakings or associations of undertakings                                    fines not exceeding 1 % of their total turnover in the preceding business year where they, intentionally or through gross                                    negligence:                           

(a)supply incorrect or misleading information in response to a request made pursuant to Article 6a(6);                           

(b)supply incorrect, incomplete or misleading information in response to a decision adopted pursuant to Article 6a(7), or do                                    not supply the information within the prescribed time limit.                           

2.The Commission may, by decision, impose on undertakings or associations of undertakings periodic penalty payments where an                                    undertaking or association of undertakings fails to supply complete and correct information as requested by the Commission                                    by decision adopted pursuant to Article 6a(7).                           

The periodic penalty payments shall not exceed 5 % of the average daily turnover of the undertaking or association concerned                                 in the preceding business year for each working day of delay, calculated from the date established in the decision, until                                 it supplies complete and correct information as requested or required by the Commission.                           

3.In fixing the amount of the fine or periodic penalty payment, regard shall be had to the nature, gravity and duration of the                                    infringement, taking due account of the principles of proportionality and appropriateness, in particular for small and medium-sized                                    enterprises.                           

4.Where the undertakings or associations of undertakings have satisfied the obligation which the periodic penalty payment was                                    intended to enforce, the Commission may reduce the definitive amount of the periodic penalty payment compared to that under                                    the original decision imposing periodic penalty payments. The Commission may also waive any periodic penalty payment.                           

5.Before adopting any decision in accordance with paragraph 1 or 2, the Commission shall set a final deadline of two weeks to                                    receive the missing market information from the undertakings or associations of undertakings concerned and also give them                                    the opportunity of making known their views.                           

6.The Court of Justice of the European Union shall have unlimited jurisdiction within the meaning of Article 261 of the TFEU                                    to review fines or periodic penalty payments imposed by the Commission It may cancel, reduce or increase the fine or periodic                                    penalty payment imposed.’;                           

in Article 7, the following paragraphs are added:

‘8.Before adopting any decision in accordance with paragraphs 2 to 5, the Commission shall give the Member State concerned the                                    opportunity of making known its views, within a time-limit that shall not normally exceed one month, on the information received                                    by the Commission and provided to the Member State concerned pursuant to Article 6a(3).                           

9.The Commission shall not use confidential information provided by respondents, which cannot be aggregated or otherwise be                                    anonymised, in any decision taken in accordance with paragraphs 2 to 5, unless it has obtained their agreement to disclose                                    that information to the Member State concerned. The Commission may take a reasoned decision, which shall be notified to the                                    undertaking or association of undertakings concerned, finding that information provided by a respondent and marked as confidential                                    is not protected, and setting a date after which the information will be disclosed. That period shall not be less than one                                    month.                           

10.The Commission shall take due account of the legitimate interests of undertakings in the protection of their business secrets                                    and other confidential information. An undertaking or an association of undertakings providing information pursuant to Article                                    6a, and which is not a beneficiary of the State aid measure in question„ may request, on grounds of potential damage, that                                    its identity be withheld from the Member State concerned.’;                           

in Article 10 paragraphs 1 and 2 are replaced by the following:

‘1.Without prejudice to Article 20, the Commission may on its own initiative examine information regarding alleged unlawful aid                                    from whatever source.                           

The Commission shall examine without undue delay any complaint submitted by any interested party in accordance with Article                                 20(2) and shall ensure that the Member State concerned is kept fully and regularly informed of the progress and outcome of                                 the examination.                           

2.If necessary, the Commission shall request information from the Member State concerned. Article 2(2) and Article 5(1) and                                    (2) shall apply *mutatis mutandis*.                           

After the initiation of the formal investigation procedure, the Commission may also request information from any other Member                                 State, from an undertaking, or association of undertakings in accordance with Article 6a and 6b, which shall apply *mutatis mutandis*.’;                           

the following chapter heading is inserted after Article 14:

The title of Article 15 is replaced by the following:

‘Limitation period for the recovery of aid’;                           

the following Articles are inserted:

## ‘Article 15aLimitation period for the imposition of fines and periodic penalty payments

1.The powers conferred on the Commission by Article 6b shall be subject to a limitation period of three years.                           

2.The period provided for in paragraph 1 shall start on the day on which the infringement referred to in Article 6b is committed.                                    However, in the case of continuing or repeated infringements, the period shall begin on the day on which the infringement                                    ceases.                           

3.Any action taken by the Commission for the purpose of the investigation or proceedings in respect of an infringement referred                                    to in Article 6b shall interrupt the limitation period for the imposition of fines or periodic penalty payments, with effect                                    from the date on which the action is notified to the undertaking or association of undertakings concerned.                           

4.After each interruption, the limitation period shall start running afresh. However, the limitation period shall expire at                                    the latest on the day on which a period of six years has elapsed without the Commission having imposed a fine or a periodic                                    penalty payment. That period shall be extended by the time during which the limitation period is suspended in accordance with                                    paragraph 5.                           

5.The limitation period for the imposition of fines or periodic penalty payments shall be suspended for as long as the decision                                    of the Commission is the subject of proceedings pending before the Court of Justice of the European Union.                           

## Article 15bLimitation periods for the enforcement of fines and periodic penalty payments

1.The powers of the Commission to enforce decisions adopted pursuant to Article 6b shall be subject to a limitation period of                                    five years.                           

2.The period provided for in paragraph 1 shall start on the day on which the decision taken pursuant to Article 6b becomes final.                           

3.The limitation period provided for in paragraph 1 shall be interrupted:                           

(a)by notification of a decision modifying the original amount of the fine or periodic penalty payment or refusing an application                                    for modification;                           

(b)by any action of a Member State, acting at the request of the Commission, or of the Commission, intended to enforce payment                                    of the fine or periodic penalty payment.                           

4.After each interruption, the limitation period shall start running afresh.                           

5.The limitation period provided for in paragraph 1 shall be suspended for so long as:                           

(a)the respondent is allowed time to pay;                           

(b)the enforcement of payment is suspended pursuant to a decision of the Court of Justice of the European Union.’;                           

Article 16 is replaced by the following:

## ‘Article 16Misuse of aid

Without prejudice to Article 23, the Commission may, in cases of misuse of aid, initiate the formal investigation procedure                                 pursuant to Article 4(4). Articles 6, 6a, 6b, 7, 9 and 10, Article 11(1) and Articles 12 to 15 shall apply *mutatis mutandis*.’;                           

in Article 20, paragraph 2 is replaced by the following:

‘2.Any interested party may submit a complaint to inform the Commission of any alleged unlawful aid or any alleged misuse of                                    aid. To that effect, the interested party shall duly complete a form that has been defined in an implementing provision referred                                    to in Article 27 and shall provide the mandatory information requested therein.                           

Where the Commission considers that the interested party does not comply with the compulsory complaint form, or that the facts                                 and points of law put forward by the interested party do not provide sufficient grounds to show, on the basis of a *prima facie* examination, the existence of unlawful aid or misuse of aid, it shall inform the interested party thereof and call upon it                                 to submit comments within a prescribed period which shall not normally exceed one month. If the interested party fails to                                 make known its views within the prescribed period, the complaint shall be deemed to have been withdrawn. The Commission shall                                 inform the Member State concerned when a complaint has been deemed to have been withdrawn.                           

The Commission shall send a copy of the decision on a case concerning the subject matter of the complaint to the complainant’;                           

the following Chapter is inserted after Article 20:

## ‘CHAPTER VIAU.K.**INVESTIGATIONS INTO SECTORS OF THE ECONOMY AND INTO AID INSTRUMENTS**

### Article 20aInvestigations into sectors of the economy and into aid instruments

1.Where the information available substantiates a reasonable suspicion that State aid measures in a particular sector or based                                    on a particular aid instrument may materially restrict or distort competition within the internal market in several Member                                    States, or that existing aid measures in a particular sector in several Member States are not, or no longer, compatible with                                    the internal market, the Commission may conduct an inquiry across various Member States into the sector of the economy or                                    the use of the aid instrument concerned. In the course of that inquiry, the Commission may request the Member States and/or                                    the undertakings or associations of undertakings concerned to supply the necessary information for the application of Articles                                    107 and 108 of the TFEU, taking due account of the principle of proportionality.                           

The Commission shall state the reasons for the inquiry and for the choice of addressees in all requests for information sent                                 under this Article.                           

The Commission shall publish a report on the results of its inquiry into particular sectors of the economy or particular aid                                 instruments across various Member States and shall invite the Member States and any undertakings or associations of undertakings                                 concerned to submit comments.                           

2.Information obtained from sector inquiries may be used in the framework of procedures under this Regulation.                           

3.Articles 5, 6a and 6b shall apply *mutatis mutandis*.’;                           

the following Chapter is inserted after Article 23:

## ‘CHAPTER VIIAU.K.**COOPERATION WITH NATIONAL COURTS**

### Article 23aCooperation with national courts

1.For the application of Article 107(1) and Article 108 of the TFEU, the courts of the Member States may ask the Commission                                    to transmit to them information in its possession or its opinion on questions concerning the application of State aid rules.                           

2.Where the coherent application of Article 107(1) or Article 108 of the TFEU so requires, the Commission, acting on its own                                    initiative, may submit written observations to the courts of the Member States that are responsible for applying the State                                    aid rules. It may, with the permission of the court in question, also make oral observations.                           

The Commission shall inform the Member State concerned of its intention to submit observations before formally doing so.                           

For the exclusive purpose of preparing its observations, the Commission may request the relevant court of the Member State                                 to transmit documents at the disposal of the court, necessary for the Commission’s assessment of the matter.’;                           

Article 25 is replaced by the following:

## ‘Article 25Addressee of decisions

1.The decisions taken pursuant to Article 6a(7), Article 6b(1) and (2), and Article 7(9) shall be addressed to the undertaking                                    or association of undertakings concerned. The Commission shall notify the decision to the addressee without delay and shall                                    give the addressee the opportunity to indicate to the Commission which information it considers to be covered by the obligation                                    of professional secrecy.                           

2.All other decisions of the Commission taken pursuant to Chapters II, III, IV, V and VII shall be addressed to the Member State                                    concerned. The Commission shall notify them to the Member State concerned without delay and shall give that Member State the                                    opportunity to indicate to the Commission which information it considers to be covered by the obligation of professional secrecy.’;                           

in Article 26, the following paragraph is inserted:

‘2a.The Commission shall publish in the *Official Journal of the European Union* the decisions which it takes pursuant to Article 6b(1) and (2).’;                           

Article 27 is replaced by the following:

## ‘Article 27Implementing provisions

The Commission, acting in accordance with the procedure laid down in Article 29, shall have the power to adopt implementing                                 provisions concerning:                           

the form, content and other details of notifications;                                    

the form, content and other details of annual reports;                                    

the form, content and other details of complaints submitted in accordance with Article 10(1) and Article 20(2);                                    

details of time-limits and the calculation of time-limits; and                                    

the interest rate referred to in Article 14(2).’                                    

# Article 2U.K.

This Regulation shall enter into force on the twentieth day following that of its publication in the *Official Journal of the European Union*.                  

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 22 July 2013.

*For the Council*                            

*The President*                            

C. Ashton                            

1

Communication from the Commission ‘Europe 2020: A strategy for smart, sustainable and inclusive growth’ of 3 March 2010 (COM(2010)                              2020 final).                           

2

OJ L 83, 27.3.1999, p. 1.