State aid - United Kingdom

Aid C 13/02 (ex N 27/02) - Stamp duty exemption for non-residential property in disadvantaged areas

Invitation to submit comments pursuant to Article 88(2) of the EC Treaty

(2002/C 102/14)

(Text with EEA relevance)

By means of the letter dated 27 February 2002, reproduced in the authentic language on the pages following this summary, the Commission notified the United Kingdom of its decision to initiate the procedure laid down in Article 88(2) of the EC Treaty concerning the abovementioned aid.

Interested parties may submit their comments on the aid in respect of which the Commission is initiating the procedure within one month of the date of publication of this summary and the following letter, to: European Commission Directorate-General for Competition

State Aid Registry

B - 1049 Brussels Fax (32-2) 296 12 42.

These comments will be communicated to the United Kingdom. Confidential treatment of the identity of the interested party submitting the comments may be requested in writing, stating the reasons for the request.

SUMMARY

1. By letter dated 21 December 2001, and registered by the Commission on 9 January 2002, the UK authorities notified the aid scheme "Stamp duty exemption for non-residential property in disadvantaged areas".

2. Description of the aid scheme

The notified aid takes the form of an exemption from stamp duties on the transfer of non-residential property situated in disadvantaged areas. These stamp duties are taxes on documents relating to sales and new leases of such property. At present duty rates, the value of the exemption would be between 1 % and 4 % of the purchase price in the case of a purchase of a property and between 1 % and 24 % of the average annual rent in the case of a new lease. The areas eligible under the scheme are selected on the basis of a set of indicators of social and economic deprivation postcodes. Some 2000 disadvantaged areas have been selected covering around 23 % of the UK population. The scheme would apply to all enterprises, regardless of size and regardless of the sector in which they are engaged. The annual budget cost of the scheme is estimated at up to EUR 98 million.

3. State aid character of the scheme

Under the scheme, aid is granted through State resources (in the form of a tax exemption) to undertakings located in specific regions (namely only in designated disadvantaged areas). The exemption reduces the investment costs of companies investing in non-residential property in eligible areas and provides an advantage to such companies over companies investing in other areas. Given that the exemption applies to all transfers of land and buildings, it will inevitably benefit undertakings which are engaged in inter-State trade, or in a business sector in which there is inter-State trade. In addition, there is no limit on the amount of aid that can be granted to a beneficiary. It must therefore be concluded that the exemption may give rise to aid which affects competition in inter-State trade.

In view of the above, the Commission considers that the measure constitutes State aid within the meaning of Article 87(1) of the EC Treaty.

4. Procedural considerations

The UK has complied with the procedural requirements of Article 88(3) EC by notifying the abovementioned aid scheme before putting it into effect.

5. Assessment of the compatibility of the aid measure

The aim of the measure is to promote the development/regeneration of disadvantaged geographical areas in the UK through the provision of aid for the transfer of non-residential property. Aid for investment in disadvantaged areas is covered by the guidelines on national regional aid (OJ C 74, 10.3.1998, p. 9), hereinafter referred to as the "regional aid guidelines", and by the guidelines on State aid for undertakings in deprived urban areas (OJ C 146, 14.5.1997, p. 6), hereinafter referred to as the "deprived urban areas guidelines". The Commission has therefore examined the measure on the basis of these two guidelines. As a result of this examination, the Commission has the following doubts as to the measure's compatibility with the common market:

(a) A first doubt concerns the geographical coverage of the measure. Under the Community's State aid rules, investment aid aimed at the development of disadvantaged areas should be limited to either regions eligible for regional State aid under Article 87(3)(a) or (c), defined in accordance with the provisions laid down in point 3 of the regional aid guidelines, or to deprived urban areas, defined in accordance with the provisions laid down in point IV of the deprived urban area guidelines.

On 17 August 2000, the Commission approved the UK regional aid map (N 265/2000), listing the areas eligible for regional State aid in the period 2000-2006. The stamp duty exemption will apply to a list of areas covering some 23 % of the UK population. Information provided by the UK suggests that between 40 % and 50 % of the areas eligible for the stamp duty exemption could fall outside the regional aid map. It is true that the deprived urban area guidelines allow for relatively high levels of investment aid in deprived urban areas outside regional aid areas. However, point 8 of these guidelines provides that the population coverage of aid under the deprived urban areas guidelines should not exceed around 1 % of national population. The coverage of the areas that are eligible for stamp duty exemption and that are not included in the regional aid map is much higher than 1 % of the UK population.

The Commission therefore doubts whether the geographical coverage of the stamp duty exemption is compatible with the abovementioned guidelines. It is concerned that the approval of the scheme, including the list of "designated disadvantaged areas" would in effect lead to a significant widening of the UK regional aid map. In turn, this would undermine the concentration of regional aid areas, which is a leading principle of the Community's regional aid policy(1).

(b) Under both the regional aid guidelines and the deprived urban areas guidelines, investment aid is limited to "initial investment". The Commission has doubts whether sale of non-residential property and the creation of new leases for such property constitutes in all circumstances "initial investment" as defined in these guidelines.

(c) Assets that are the object of successive transfers of ownership qualify for stamp duty exemption on each occasion. Furthermore, the scheme does not exclude assets for whose acquisition aid has already been paid in the past (under other aid schemes). The Commission doubts whether this is in line with the provision of the guidelines on national regional aid that, in the event of a purchase, assets for whose acquisition aid has already been granted prior to the purchase should be deducted.

(d) According to the UK, the aid intensity of the scheme will never exceed 4 %. However, the Commission doubts whether, in cases where the stamp duty exemption is cumulated with other aid, the UK authorities will be able to ensure that the total amount of aid will respect the aid intensity ceilings established in the regional aid map (or other ceilings that may apply).

(e) According to the notification, the scheme applies to all sectors, including the sectors for which special rules apply (transport, steel, shipbuilding, synthetic fibres, motor vehicles, the production, processing and marketing of agricultural products listed in Annex I of the EC Treaty, fisheries and coal). It is unclear though how the UK authorities will ensure that the special rules applicable to aid in the abovementioned sectors will be complied with.

(f) The notified scheme does not impose any restriction on the types of companies that could benefit from the stamp duty exemption. The Commission doubts whether this is in conformity with the deprived urban area guidelines, which restrict aid to small companies only and which impose further conditions on the beneficiaries of such aid (namely that he must carry on its principle economic activity and invest in the area designated as a deprived urban area and that he must reserve at least 20 % of the new jobs created for persons having their domicile in a deprived area).

TEXT OF THE LETTER

"The Commission wishes to inform the United Kingdom that, having examined the information supplied by your authorities on the aid measure referred to above, it has decided to initiate the procedure laid down in Article 88(2) of the EC Treaty.

I. PROCEDURE

1. By letter dated 21 December 2001, and registered by the Commission on 9 January 2002, the UK authorities notified a scheme exempting transfers of non-residential property in disadvantaged areas from stamp duty. A bilateral meeting between the UK authorities and the Commission was held on 5 February 2002 to clarify some points of the notification.

II. DESCRIPTION OF THE AID MEASURE

2. Aim of the measure

The aim of the measure is to contribute to the physical, economic and social regeneration of disadvantaged areas by means of reducing the cost of acquiring non-residential property in these areas. As such the scheme is part of the UK Government's 'Enterprise in disadvantaged communities' initiative.

3. The form and nature of the aid

The notified aid takes the form of an exemption from stamp duty on the transfer of non-residential property and on the creation of new leases for such property.

Stamp duties are taxes on documents. The main stamp duties levied in the UK at the present day are on sales and leases of land and buildings, and transfers of shares.

4. Eligible costs and aid intensity

Eligible costs comprise the consideration (i.e. purchase price) of the property (i.e. land and/or buildings) situated in the qualifying area, or the average annual rental for a new lease. Apportionment is required if the property is only partially situated in a qualifying area.

Stamp duty rates vary according to the purchase price of the property concerned and, in the case of leases, according to the average annual rental and the duration of the lease.

At present duty rates, the value of the exemption would be between 1 % and 4 % of the purchase price in the case of a purchase of a property and between 1 % and 24 % of the average annual rent in the case of a new lease.

5. Geographical coverage of the scheme

The stamp duty exemption would apply to sales and new leases of non-residential property located in 'designated disadvantaged areas' in the UK.

The eligible areas, which have average populations of 7000, are selected on the basis of the most recent values for indices of deprivation developed for each of the four nations of the United Kingdom (no suitable single measure of deprivation exists for the UK - so it was necessary to use the four different but comparable indices). In England, Wales and Northern Ireland the geographical units used for the analysis are the electoral wards or divisions. In Scotland the geographical units used are postcodes.

Some 2000 disadvantaged areas have been designated in the UK, covering 22 % of the total population in England, 18 % in Scotland, 47 % in Wales and 40 % in Northern Ireland. The present list of eligible areas has been set out in 'The Stamp Duty (Disadvantaged Areas) Regulations 2001' (Statutory Instruments 2001/3747). However, the UK indicated that the qualifying areas will be kept under review, but that changes of the list are likely to be infrequent.

6. Beneficiaries

The scheme applies to undertakings of any size and operating in any sector of the economy.

7. Budget of the scheme

The annual budget cost of the scheme is estimated at up to GBP 60 million (around EUR 98 million). It is estimated that, each year, at least 1200 transfers will be exempted from stamp duty under the scheme.

8. Legal basis of the scheme

Primary legislation: Section 92 and Schedule 30 Finance Act 2001.

Secondary legislation:

- SI 3746/2001 (The Variation of Stamp Duties Regulations),

- SI 3747/2001 (The Stamp Duty (Disadvantaged Areas) Regulations),

- SI 3748/2001 (The Finance Act 2001, Section 92(8), (Specified Day) Order).

9. Duration of the scheme: 2002-2011.

III. ASSESSMENT OF THE AID MEASURE

10. In accordance with Article 6(1) of Council Regulation (EC) No 659/1999 of 22 March 1999, the decision to initiate proceedings shall summarise the relevant issues of fact and law, shall include a preliminary assessment from the Commission as to the aid character of the proposed measure, and shall set out the doubts as to its compatibility with the common market.

11. Procedure

The UK authorities have complied with the procedural requirements of Article 88(3) of the EC Treaty by notifying the abovementioned aid scheme before putting it into effect.

12. The existence of aid

The Commission considers, at this stage of the procedure, that the measure constitutes State aid within the meaning of Article 87(1) of the EC Treaty, and this for the following reasons:

- State resources are involved because tax is foregone.

- The measure is selective because it is targeted upon particular geographical areas.

- The measure will reduce the investment costs for companies investing in non-residential assets in the eligible areas. It will therefore provide an advantage to such companies over other companies investing in other areas, and therefore not receiving the exemption.

- Because the exemption applies to all conveyances and transfers of estates and interests in land in the designated areas it will, among others, inevitably benefit undertakings which are engaged in inter-State trade, or in a business sector in which there is inter-State trade. Furthermore, the scheme does not provide that the limits laid down in Council Regulation (EC) No 69/2001 of 12 January 2001 on the application of Articles 87 and 88 of the EC Treaty to de-minimis aid will be respected. Accordingly, the new exemption may give rise to aid which affects competition in inter-State trade.

13. Exemption grounds

(a) Article 87(2) of the EC Treaty lists certain types of aid that are compatible with the EC Treaty. In view of the nature and purpose of the aid, and the geographical coverage of the scheme, the Commission considers, at this stage of the analysis, that subparagraphs (a), (b) and (c) are not applicable to the measure in question.

(b) Article 87(3) specifies other forms of aid, which may be regarded as compatible with the common market. In view of the nature and purpose of the aid measure and its geographical scope, the Commission considers, at this stage of the investigation, that the subparagraphs (a), (b), (d) and (e) of Article 87(3) are not applicable either.

(c) In the notification, the UK authorities appear to agree with the above analysis and suggest that the question is whether the aid measure is compatible with the common market on the basis that it will facilitate the development of certain economic areas and it will not adversely affect trading conditions to an extent contrary to the common interest (Article 87(3)(c) of the EC Treaty).

(d) The coverage of the notified measure is not limited to SMEs, nor to firms in difficulty, nor to any one of the following activities: R & D, environmental protection as defined in the Community guidelines on State aid for environmental protection (OJ C 37, 3.2.2001, p. 3), training, the creation or maintenance of employment. Therefore, the Commission considers, at this stage of the analysis, that the notified measure can not be declared compatible with the common market on the basis of its conformity with any of the following regulations, frameworks or guidelines:

- Commission Regulation (EC) No 70/2001 of 12 January 2001 on the application of Articles 87 and 88 of the EC Treaty to State aid to small and medium-sized enterprises (OJ L 10, 13.1.2001, p. 33);

- Community guidelines on State aid for rescuing and restructuring firms in difficulty (OJ C 288, 9.10.1999, p. 2);

- Community framework for State aid for research and development (OJ C 45, 17.2.1996, p. 5);

- Community guidelines on State aid for environmental protection (OJ C 37, 3.2.2001, p. 3);

- Commission Regulation (EC) No 68/2001 of 12 January 2001 on the application of Articles 87 and 88 of the EC Treaty to training aid (OJ L 10, 13.1.2001, p. 20);

- Guidelines on employment (OJ C 334, 12.12.1995, p. 4).

(e) The aim of the measure is to promote the development/regeneration of disadvantaged areas in the UK, which are geographically defined. Therefore, the Commission has examined the compatibility of the measure on the basis of the guidelines on national regional aid (OJ C 74, 10.3.1998, p. 9), hereinafter referred to as the 'regional aid guidelines' and the guidelines on State aid for undertakings in deprived urban areas (OJ C 146, 14.5.1997, p. 6), hereinafter referred to as the 'deprived urban area guidelines'. The results of this analysis are presented below.

14. Conformity with the regional aid guidelines

The stamp duty exemption is granted in relation to the transfer of non-residential property in disadvantaged areas. In its notification, the UK argues correctly that the notified scheme is therefore primarily focussed on investment. According to the regional aid guidelines, aid for investment in disadvantaged areas may be compatible with the common market, but only if certain conditions are satisfied. At this stage of the examination, the Commission has doubts whether the notified scheme respects the conditions set out in these guidelines:

(a) By letter No SG(2000) D/106293 of 17 August 2000, the Commission approved the UK regional aid map for the period 2000 to 2006 (N 265/2000). The map defines the areas eligible for national regional aid under the derogations of Article 87(3)(a) and (c) of the EC Treaty. The Article 87(3)(a) regions included in the map were defined on the basis of EU-wide criteria (NUTS level II regions with a GDP per capita in PPS lower than 75 % of the Community average). The Article 87(3)(c) areas were selected on the basis of geographical units and social and economic indicators, proposed by the UK authorities themselves. The stamp duty exemption will apply to transfers of non-residential property situated in so-called 'designated disadvantaged areas', which have been defined on the basis of different geographical units and indicators (see point 5 above). The result of this approach is that a number of areas eligible under the notified measure does not fall within the areas eligible for regional aid as defined in the present UK regional aid map. Information provided by the UK in the context of an examination of another State aid scheme (namely the Community development venture fund (N 606/2000)), suggests that the proportion of the disadvantaged areas falling outside the regional aid map is very significant(2).

The Commission therefore doubts whether the geographical coverage of the stamp duty exemption is compatible with the regional aid guidelines. It is concerned that the approval of the scheme, including the list of 'designated disadvantaged areas' would in effect lead to a significant widening of the UK regional aid map. In turn, this would undermine the concentration of regional aid areas, which is a leading principle of the Community's regional aid policy(3). In order to clarify this point, the Commission would also ask the UK authorities to provide clear information on the extent to which the two lists overlap.

(b) Point 4.1 of the regional aid guidelines provides that the object of regional aid is to secure either productive investment (initial investment) or job creation that is linked to investment. Point 4.11 specifies that also aid for job creation should be linked to the carrying out of initial investment. Initial investment is defined in point 4.4 of the guidelines as 'an investment in fixed capital relating to the setting-up of a new establishment, the extension of an existing establishment, or the starting-up of an activity involving a fundamental change in the product or production process of an existing establishment (through rationalisation, diversification or modernisation)'. The stamp duty exemption concerns the sale of non-residential property and the creation of new leases for such property. The Commission has doubts whether such transactions can in all circumstances be classified as initial investment as defined in the guidelines.

(c) The notification points out that any transaction can benefit only once from the stamp duty exemption. The implication of this is, however, that assets that are the object of successive transactions (e.g. successive transfers of ownership), would qualify for stamp duty exemption on each occasion. Furthermore, assets for whose acquisition aid has already been paid in the past (under other aid schemes) are not excluded from the scheme. In view of this, the Commission has doubts whether the scheme respects point 4.5 of the regional aid guidelines, which provides that in the event of a purchase, assets for whose acquisition aid has already been granted prior to the purchase should be deducted.

(d) Point 5.4 of the regional aid guidelines provides that regional aid schemes are approved by the Commission, subject to the aid intensity ceilings defined in the map. Point 4.18 specifies that the total amount of regional investment aid should respect the aid intensity ceilings set out in the regional aid map. Point 4.21 requires that, in cases where the aid under one scheme may be combined with aid under other schemes, the Member State must specify, for each scheme, the method by which it will ensure that the regional aid intensity ceilings will be complied with. In the notification, the UK argues that the intensity of the scheme will never exceed 4 %. It is unclear though how the UK arrives at that percentage. In addition, the UK does not exclude the possibility that aid under the notified scheme is cumulated with aid under other schemes. In fact, the notification explicitly mentions the possibility that aid under the scheme is cumulated with aid from certain risk capital measures. The Commission doubts whether, in cases where the stamp duty exemption is cumulated with other aid, the UK authorities will be able to ensure that the total amount of aid will respect the aid intensity ceilings established in the regional aid map. In this context, the Commission would ask the UK authorities to clarify the way in which the aid intensity will be calculated in cases involving the establishment of new leases. It would also ask the UK to clarify how it will ensure that cumulation rules are complied with.

(e) Point 2 of the regional aid guidelines provides that the granting of (regional) State aid in certain sectors (transport, steel, shipbuilding, synthetic fibres, motor vehicles, fisheries and coal) is subject to specific restrictions. The guidelines on national regional aid excludes specifically from its scope the production, processing and marketing of Annex I products. The guidelines on State aid for undertakings in deprived urban areas are without prejudice of other State aid rules. Therefore any aid granted to undertakings operating in the production, processing and marketing of Annex I products is to be assessed according to the Community guidelines for State aid in the agriculture sector. In addition, special rules apply to large investment projects. According to the notification, the scheme applies to all sectors. It is unclear though how the UK authorities will ensure that the aid granted under the notified scheme to companies engaged in the abovementioned sectors or to large investment projects will comply with the special rules applicable. The United Kingdom authorities are requested to provide necessary information to permit the assessment of the measure at issue under the State aid rules applicable to the agriculture sector.

15. Conformity with the deprived urban area guidelines

The deprived urban area guidelines make provision for the granting of aid for investment in deprived geographical areas, subject to specific conditions. At this stage of the examination, the Commission has doubts whether the notified scheme respects these conditions:

(a) Point 5 of the deprived urban area guidelines recognises that there can be a need for investment aid to deprived urban areas that are not included in the regional aid map. However, point 8 of the guidelines provides that the total population covered by such areas should not exceed 1 % of the national population (or, in circumstances justified by the Member State on the basis of objective socioeconomic data at a level slightly above this ceiling). Areas covered should be geographically identifiable and homogeneous; they should have a population of between around 10000 and 30000 and belong to cities or urban agglomerations with around 100000 inhabitants or more and have significantly worse socioeconomic statistics than both the national average and the average for the cities to which they belong. Also areas selected under the urban community initiative could be taken into account.

As was pointed out in point 14(a) above, a significant number of areas eligible under the notified measure probably falls outside the regional aid map. The number of people living in these areas is therefore likely to be far in excess of the 1 % ceiling set out in the deprived urban area guidelines. In addition, it is unclear to what extent the areas that qualify under the notified scheme and that are outside the regional aid map are satisfying the other eligibility criteria laid down in point 7 of the urban aid guidelines. The Commission therefore doubts whether the areas that qualify under the notified scheme and that are not included in the regional aid map are selected in conformity with the criteria laid down in paragraph 7 and 8 of the urban aid guidelines. It requests further clarification on the population coverage of the areas that qualify under the scheme and that are not eligible for regional aid and on the extent to which these areas satisfy the eligibility criteria laid down in point 7 of the deprived urban area guidelines.

(b) The notified scheme does not impose any restriction on the types of companies that could benefit from the stamp duty exemption. The Commission doubts whether this is in conformity with the deprived urban area guidelines. Point 10 of these guidelines restricts aid to small companies only, arguing that 'extending the benefits of the aid to large enterprises would have disproportionate effects in terms of distortion of competition and the negative impact on cohesion'. In addition point 12 of the guidelines imposes further restrictions (namely that the beneficiary must carry on its principle economic activity and invest in the area designated as a deprived urban area and that he must reserve at least 20 % of the new jobs created for persons having their domicile in a deprived area).

(c) The deprived urban area guidelines also provide that aid should be limited to initial investment projects and that the total amount of aid should be limited to 26 % nge of eligible investment costs (point 14 of the guidelines). The doubts expressed in points 14(b) and 14(e) therefore also apply in this case.

IV. DECISION

16. In the light of the foregoing considerations, the Commission, acting under the procedure laid down in Article 88(2) of the EC Treaty, requests the United Kingdom to submit its comments and to provide all such information as may help to assess the aid scheme 'Stamp duty exemption for non-residential property in disadvantaged areas', within one month of the date of receipt of this letter.

17. The Commission wishes to remind the United Kingdom that Article 88(3) of the EC Treaty has suspensory effect, and would draw your attention to Article 14 of Regulation (EC) No 659/1999, which provides that all unlawful aid may be recovered from the recipients."

(1) In this context, the guidelines on national regional policy point out that regional aid "... is conceivable in the European Union only if it is used sparingly and remains concentrated on the most disadvantaged regions. If aid were to become generalised and, as it were, the norm, it would lose all its incentive quality and its economic impact would be nullified. At the same time, it would interfere with the normal interplay of market forces and reduce the efficacy of the Community economy as a whole".

(2) By letter of 14 January 2002, the UK authorities analysed the degree of overlap between the 20 % most deprived wards and the Article 87(3)(a) and (c) areas in England. Their analysis concluded that only 57 % of these most deprived wards were also included in the regional aid map.

(3) In this context, the guidelines on national regional policy point out that regional aid '... is conceivable in the European Union only if it is used sparingly and remains concentrated on the most disadvantaged regions. If aid were to become generalised and, as it were, the norm, it would lose all its incentive quality and its economic impact would be nullified. At the same time, it would interfere with the normal interplay of market forces and reduce the efficacy of the Community economy as a whole'.