Commission 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
Date: 2001-01-12
Institutions: European Commission
Subjects: EU Member State, State aid, aid system, aid to undertakings, application of EU law

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COMMISSION 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

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

(5)

Having regard to the Treaty establishing the European
Community,

Having regard to Council Regulation (EC) No 994/98 of 7 May
1998 on the application of Articles 92 and 93 of the Treaty
establishing the European Community to certain categories of
horizontal State aid (1), and in particular Article 2 thereof,

Having published a draft of this Regulation (2),

Having consulted the Advisory Committee on State aid,

Whereas:

(1)

(2)

(3)

(4)

Regulation (EC) No 994/98 empowers the Commission
to set out in a regulation a threshold under which aid
measures are deemed not to meet all the criteria of
Article 87(1) of the Treaty and therefore do not fall
under the notification procedure provided for in Article
88(3) of the Treaty.

(6)

The Commission has applied Articles 87 and 88 of the
Treaty and in particular clarified, in numerous decisions,
the notion of aid within the meaning of Article 87(1) of
the Treaty. The Commission has also stated its policy
with regard to a de minimis ceiling, under which Article
87(1) can be considered not to apply, most recently in
the notice on the de minimis rule for State aid (3). In the
light of this experience and with a view to increasing
transparency and legal certainty, it is appropriate that
the de minimis rule be laid down in a Regulation.

In view of the special rules which apply in the sectors of
agriculture, fisheries and aquaculture, and transport, and
of the risk that even small amounts of aid could fulfil
the criteria of Article 87(1) of
the Treaty in those
sectors, it is appropriate that this Regulation should not
apply to those sectors.

In the light of the World Trade Organisation (WTO)
Agreement on Subsidies and Countervailing Measures (4),
this Regulation should not exempt export aid or aid
favouring domestic over imported products. Aid towards
the cost of participating in trade fairs, or of studies or
consultancy services needed for the launch of a new or
existing product on a new market does not normally
constitute export aid.

(7)

(1) OJ L 142, 14.5.1998, p. 1.
(2) OJ C 89, 28.3.2000, p. 6.
(3) OJ C 68, 6.3.1996, p. 9.
(4) OJ L 336, 23.12.1994, p. 156.

a

aid not

exceeding

In the light of the Commission's experience, it can be
established that
ceiling of
EUR 100 000 over any period of three years does not
affect trade between Member States and/or does not
distort or threaten to distort competition and therefore
does not fall under Article 87(1) of the Treaty. The
relevant period of three years has a mobile character, so
that for each new grant of de minimis aid, the total
amount of de minimis aid granted during the previous
three years needs to be determined. The de minimis aid
should be considered to be granted at the moment the
legal right to receive the aid is conferred to the benefi-
ciary. The de minimis rule is without prejudice to the
possibility that enterprises receive, also for the same
project, State aid authorised by the Commission or
covered by a group exemption Regulation.

For the purpose of transparency, equal treatment and
the correct application of the de minimis ceiling,
it is
appropriate that Member States should apply the same
method of calculation. In order to facilitate this calcula-
tion and in accordance with the present practice of
application of the de minimis rule, it is appropriate that
aid amounts not taking the form of a cash grant should
be converted into their gross grant equivalent. Calcula-
tion of the grant equivalent of aid payable in several
instalments, and calculation of aid in the form of a soft
loan, require the use of market interest rates prevailing
at the time of grant. With a view to a uniform, trans-
parent and simple application of the State aid rules, the
market rates for the purposes of this Regulation should
be deemed to be the reference rates, provided that, in the
case of a soft loan, the loan is backed by normal security
and does not involve abnormal risk. The reference rates
should be those which are periodically fixed by the
Commission on the basis of objective criteria and
published in the Official Journal of the European Communi-
ties and on the Internet.

The Commission has a duty to ensure that State aid
rules are respected and in particular that aid granted
under the de minimis rules adheres to the conditions
thereof. In accordance with the cooperation principle
laid down in Article 10 of the Treaty, Member States
should facilitate the achievement of this task by estab-
lishing the necessary machinery in order to ensure that
the total amount of aid, granted to the same beneficiary
under the de minimis rule, does not exceed the ceiling of
EUR 100 000 over a period of three years. To that end,
it is appropriate that Member States, when granting a de
minimis aid, should inform the enterprise concerned of

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the de minimis character of the aid, receive full informa-
tion about other de minimis aid received during the last
three years and carefully check that the de minimis ceiling
will not be exceeded by the new de minimis aid. Alterna-
tively respect of the ceiling may also be ensured by
means of a central register.

(8)

Having regard to the Commission's experience and in
particular the frequency with which it is generally neces-
sary to revise State aid policy, it is appropriate to limit
the period of application of this Regulation. Should this
Regulation expire without being extended, Member
States should have an adjustment period of six months
with regard to de minimis aid schemes which were
covered by this Regulation,

HAS ADOPTED THIS REGULATION:

Article 1

Scope

This Regulation applies to aid granted to enterprises in all
sectors, with the exception of:

(a) the transport sector and the activities linked to the produc-
tion, processing or marketing of products listed in Annex I
to the Treaty;

(b) aid to export-related activities, namely aid directly linked to
the quantities exported, to the establishment and operation
of a distribution network or to other current expenditure
linked to the export activity;

(c) aid contingent upon the use of domestic over imported

goods.

Article 2

De minimis aid

1.
Aid measures shall be deemed not to meet all the criteria
of Article 87(1) of the Treaty and shall therefore not fall under
the notification requirement of Article 88(3) of the Treaty, if
they fulfil the conditions laid down in paragraphs 2 and 3.

2.
The total de minimis aid granted to any one enterprise
shall not exceed EUR 100 000 over any period of three years.
This ceiling shall apply irrespective of the form of the aid or
the objective pursued.

3.
The ceiling in paragraph 2 shall be expressed as a cash
grant. All figures used shall be gross, that is, before any deduc-
tion for direct taxation. Where aid is awarded in a form other

than a grant, the aid amount shall be the gross grant equivalent
of the aid.

Aid payable in several instalments shall be discounted to its
value at the moment of its being granted. The interest rate to
be used for discounting purposes and to calculate the aid
amount in a soft loan shall be the reference rate applicable at
the time of grant.

Article 3

Cumulation and monitoring

1. Where a Member State grants de minimis aid to an enter-
prise, it shall inform the enterprise about the de minimis char-
acter of the aid and obtain from the enterprise concerned full
information about other de minimis aid received during the
previous three years.

The Member State may only grant the new de minimis aid after
having checked that this will not raise the total amount of de
minimis aid received during the relevant period of three years to
a level above the ceiling set out in Article 2(2).

2. Where a Member State has set up a central register of de
minimis aid containing complete information on all de minimis
aid granted by any authority within that Member State, the
requirement in the first subparagraph of paragraph 1 no longer
applies from the moment the register covers a period of three
years.

3. Member States shall record and compile all the informa-
tion regarding the application of this Regulation. Such records
shall contain all information necessary to demonstrate that the
conditions of this Regulation have been respected. Records
regarding an individual de minimis aid shall be maintained for
10 years from the date on which it was granted and regarding
a de minimis aid scheme, for 10 years from the date on which
the last individual aid was granted under such scheme. On
written request the Member State concerned shall provide the
Commission, within a period of 20 working days, or such
longer period as may be fixed in the request, with all the
information that
the Commission considers necessary for
assessing whether the conditions of this Regulation have been
complied with, in particular the total amount of de minimis aid
received by any enterprise.

Article 4

Entry into force and period of validity

This Regulation shall enter into force on the 20th day
1.
following that of its publication in the Official Journal of the
European Communities.

It shall remain in force until 31 December 2006.

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At the end of the period of validity of this Regulation, de minimis aid schemes falling under this

2.
Regulation shall continue to benefit from it during an adjustment period of six months.

During the adjustment period, these schemes may continue to be applied under the conditions of this
Regulation.

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

Done at Brussels, 12 January 2001.

For the Commission

Mario MONTI

Member of the Commission