2. COMPETITION POLICY

Treaty establishing a Constitution for Europe, Part III, Title III, Chapter I, Section 5, Rules on competition

1. The following aid schemes and individual aid put into effect in a new Member State before the date of accession and still applicable after that date shall be regarded upon accession as existing aid within the meaning of Article III-168(1) of the Constitution:

(a) aid measures put into effect before 10 December 1994;

(b) aid measures listed in the Appendix to this Annex;

(c) aid measures which prior to the date of accession were assessed by the State aid monitoring authority of the new Member State and found to be compatible with the acquis, and to which the Commission did not raise an objection on the ground of serious doubts as to the compatibility of the measure with the common market, pursuant to the procedure set out in paragraph 2.

All measures still applicable after the date of accession which constitute State aid and which do not fulfil the conditions set out above shall be considered as new aid upon accession for the purpose of the application of Article III-168(3) of the Constitution.

The above provisions do not apply to aid to the transport sector, nor to activities linked to the production, processing or marketing of products listed in Annex I to the Constitution with the exception of fisheries products and products derived thereof.

The above provisions shall also be without prejudice to the transitional measures regarding Competition Policy set out in the Protocol and the measures laid down in Annex VII, Chapter 4, Section B, to the Protocol.

2. To the extent that a new Member State wishes the Commission to examine an aid measure under the procedure described in paragraph 1(c), it shall provide the Commission regularly with:

(a) a list of existing aid measures which have been assessed by the national State aid monitoring authority and which that authority has found to be compatible with the acquis; and

(b) any other information which is essential for the assessment of the compatibility of the aid measure to be examined,

in accordance with the concrete reporting format provided by the Commission.

If the Commission does not object to the existing aid measure on the ground of serious doubts as to the compatibility of the measure with the common market, within 3 months of receipt of complete information on that measure or of receipt of the statement of the new Member State in which it informs the Commission that it considers the information provided to be complete because the additional information requested is not available or has been already provided, the Commission shall be deemed not to have raised an objection.

All aid measures submitted under the procedure described in paragraph 1(c) prior to the date of accession to the Commission are subject to the above procedure irrespective of the fact that in the period of examination the new Member State concerned has already become member of the Union.

3. A Commission decision to object to a measure, within the meaning of paragraph 1(c), shall be regarded as a decision to initiate the formal investigation procedure within the meaning of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty [1].

If such a decision is taken before the date of accession, the decision will only come into effect upon the date of accession.

4. Without prejudice to the procedures concerning existing aid provided for in Article III-168 of the Constitution, aid schemes and individual aid granted in the transport sector, put into effect in a new Member State before the date of accession and still applicable after that date, shall be regarded as existing aid within the meaning of Article III-168(1) of the Constitution subject to the following condition:

- the aid measures shall be communicated to the Commission within four months of the date of accession. This communication shall include information on the legal basis for each measure. Existing aid measures and plans to grant or alter aids communicated to the Commission prior to the date of accession shall be deemed to have been communicated on the date of accession.

These aid measures shall be regarded as "existing" aid within the meaning of Article III‐168(1) of the Constitution until the end of third year from the date of accession.

The new Member States shall, where necessary, amend these aid measures in order to comply with the guidelines applied by the Commission by the end of the third year from the date of accession at the latest. After that date, any aid found to be incompatible with those guidelines shall be considered as new aid.

5. With regard to Romania, paragraph 1(c) shall only apply to aid measures assessed by the Romanian State aid monitoring authority after such date, decided upon by the Commission on the basis of continuous monitoring of the commitments undertaken by Romania in the context of the accession negotiations, that Romania's State aid enforcement record in the period prior to accession has reached a satisfactory level. Such a satisfactory level shall only be considered to have been reached once Romania has demonstrated the consistent application of full and proper State aid control in relation to all aid measures granted in Romania, including the adoption and the implementation of fully and correctly reasoned decisions by the Romanian State aid monitoring authority containing an accurate assessment of the State aid nature of each measure and a correct application of the compatibility criteria.

The Commission may object, on the ground of serious doubts as to the compatibility with the common market, to any aid measure granted in the pre-accession period between 1 September 2004 and the date fixed in the above Commission decision finding that the enforcement record has reached a satisfactory level. Such a Commission decision to object to a measure shall be regarded as a decision to initiate the formal investigation procedure within the meaning of Regulation (EC) No 659/1999. If such a decision is taken before the date of accession, the decision will only come into effect upon the date of accession.

Where the Commission adopts a negative decision following the initiation of the formal investigation procedure, the Commission shall decide that Romania shall take all necessary measures to effectively recover the aid from the beneficiary. The aid to be recovered shall include interest at an appropriate rate determined in accordance with Regulation (EC) No 794/2004 [2], and payable from the same date.

[1] OJ L 83, 27.3.1999, p. 1. Regulation as last amended by the 2003 Act of Accession (OJ L 236, 23.9.2003, p. 33).

[2] Commission Regulation (EC) No 794/2004 of 21.4.2004 implementing Council Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ L 140, 30.4.2004, p. 1).

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