2001/390/EC: Decision No 4/2000 of the EU-Romania Association Council of 10 April 2001 adopting the implementing rules for the application of the provisions on State aid referred to in Articles 64(1)(iii) and (2) pursuant to Article 64(3) of the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and Romania, of the other part, and in Article 9(1)(iii) and (2) of Protocol 2 on European Coal and Steel Community (ECSC) products to that Agreement
Date: 2001-04-10
Institutions: EC–Romania Association Council
Subjects: Romania, State aid, association agreement (EU), control of State aid, iron and steel product

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II

(Acts whose publication is not obligatory)

COUNCIL

DECISION No 4/2000 OF THE EU-ROMANIA ASSOCIATION COUNCIL

of 10 April 2001

adopting the implementing rules for the application of the provisions on State aid referred to in
Articles 64(1)(iii) and (2) pursuant to Article 64(3) of the Europe Agreement establishing an
association between the European Communities and their Member States, of the one part, and
Romania, of the other part, and in Article 9(1)(iii) and (2) of Protocol 2 on European Coal and Steel
Community (ECSC) products to that Agreement

(2001/390/EC)

THE ASSOCIATION COUNCIL,

Having regard to the Europe Agreement establishing an asso-
ciation between the European Communities and their Member
States, of the one part, and Romania, of the other part, and in
particular Article 64(3) thereof,

Having regard to Protocol 2 on European Coal and Steel
Community (ECSC) products to the Europe Agreement and in
particular Article 9(3) thereof,

Whereas:

(1)

(2)

Article 64(3) of the Europe Agreement lays down that
the Association Council shall, within three years of the
entry into force of the Agreement, adopt by decision the
necessary rules for the implementation of paragraphs 1
and 2 of that Article.

the concept of

It is recalled that in accordance with Article 64(2) of the
‘public aid’ as
Europe Agreement,
contained in Article 64(1)(iii) of the Europe Agreement
is to be assessed on the basis of criteria arising from the
application of the rules of Article 87 of the Treaty
establishing the European Community, and thus covers
any aid granted by the State or through State resources
in any form whatsoever which distorts or threatens to
distort competition by favouring certain undertakings or
the production of certain goods, insofar as it may affect
trade between the European Community and Romania
(State aid).

(3)

Romania will appoint a national institution or adminis-
tration to become a monitoring authority with responsi-
bility for State aid matters.

(4)

(5)

(6)

This monitoring authority will be responsible for the
analysis of existing and future individual aid awards and
programmes in Romania and will give an opinion as to
their compatibility with Article 64(1)(iii) and (2) of the
Europe Agreement, and Article 9(1)(iii) and (2) and (4)
of Protocol 2 on European Coal and Steel Community
(ECSC) products to the Europe Agreement.

Romania will, when providing for the necessary rules to
ensure effective supervision, ensure in particular that the
monitoring authority receives in due time all the rele-
vant information from the other government depart-
ments at central, regional and local

level.

The Commission of the European Communities will,
under the relevant Community programmes, assist the
monitoring authority by providing for documentation,
training, study tours and other relevant technical assis-
tance,

HAS DECIDED AS FOLLOWS:

Article 1

The implementing rules for the application of the provisions
on State aid referred to in Article 64(1)(iii) and (2) pursuant to
Article 64(3) of the Europe Agreement establishing an associa-
tion between the European Communities and their Member
States, of the one part, and Romania, of the other part, and in
Article 9(1)(iii) and (2) of Protocol 2 on European Coal and
Steel Community (ECSC) products to that Agreement as set out
in the Annex to this Decision, are hereby adopted.

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These Implementing Rules shall enter into force on the first day of the month following the adoption of the
rules.

Article 2

Done at Brussels, 10 April 2001.

For the Association Council

The President

A. LINDH

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IMPLEMENTING RULES

for the application of the provisions on State aid referred to in Article 64(1)(iii) and (2) pursuant to
Article 64(3) of
the Europe Agreement establishing an association between the European
Communities and their Member States, of the one part, and Romania, of the other part, and in
Article 9(1)(iii) and (2) of Protocol 2 on European Coal and Steel Community (ECSC) products to
that Agreement

SURVEILLANCE OF STATE AID BY MONITORING AUTHORITIES

Article 1

Surveillance of State aid by monitoring authorities

to the procedural rules in force in the European
Subject
Community (‘the Community’) and Romania, the granting of
State aid shall be surveyed and assessed as to its compatibility
with the Europe Agreement by the responsible monitoring
authorities in the Community and Romania, respectively. The
monitoring authority in the Community shall be the Commis-
sion of the European Communities (‘the Commission’), and in
Romania the Competition Office and Competition Council.

GUIDANCE FOR DEALING WITH CASES

Article 2

Criteria for compatibility

1.
The assessment of compatibility of individual aid awards
and programmes with the Europe Agreement, as provided for
in Article 1 of these Rules, shall be made on the basis of the
criteria arising from the application of the rules of Article 87 of
the Treaty establishing the European Community, including the
present and future secondary legislation, frameworks, guide-
lines and other relevant administrative acts in force in the
Community, as well as the case law of the Court of First
Instance and the Court of Justice of the European Communities
and any decision taken by the Association Council pursuant to
Article 4(3).

Insofar as the aid awards or aid programmes are destined for
products covered by Protocol 2 to the Europe Agreement, the
first sentence of this paragraph applies fully with the exception
that the assessment shall not be made on the basis of the
criteria arising from the application of the rules of Article 87 of
the Treaty establishing the European Community but on the
basis of the criteria arising from the application of the rules on
State aid of the Treaty establishing the European Coal and Steel
Community.

graph 1, insofar as these are not published but are specifically
brought to the attention of all Member States.

3. Where such changes do not encounter objections from
Romania within three months from the date of receiving the
official information about them, they shall become criteria of
compatibility as provided for in paragraph 1 of this Article.
Where such changes encounter objections from Romania and
having regard to the approximation of legislation as provided
for in the Europe Agreement, consultations shall take place, in
accordance with Articles 7 and 8 of these Rules.

The same principles shall apply in respect of other signifi-

4.
cant changes in Community policy on State aids.

Article 3

De minimis aid

Aid programmes or individual aid awards which do not involve
export aid and which fall below the threshold applicable in the
Community for de minimis aid (1) shall be considered as having
only a negligible effect on competition and trade between the
Parties and shall therefore not be treated under these Rules.
This Article does not apply to the industries covered by the
Treaty establishing the European Coal and Steel Community, to
shipbuilding, to transport nor to aid towards expenditure in
connection with agriculture or fisheries.

Article 4

Derogations

In accordance with and within the limits of Article
1.
64(4)(a) of the Europe Agreement, Romania shall be regarded
as an area identical to those areas of the Community referred
to in Article 87(3)(a) of the Treaty establishing the European
Community.

The monitoring authorities shall

2.
jointly evaluate the
maximum aid intensities and specific regional coverage of areas
in Romania eligible for national regional aid. They shall submit
a joint proposal to the Association Committee which shall
establish a decision to this effect.

The monitoring authorities may, if necessary and at the
3.
request of Romania,
jointly evaluate problems raised by the
implementation of the Community acquis in the field of State
aids awarded by Romania as it completes transition to a market
economy. The evaluation of such problems shall not relate to
the agricultural sector, fisheries, coal and steel, or to sensitive
sectors (automobiles, man-made fibres or shipbuilding)
for
which specific Community arrangements exist. Where appro-
priate, the monitoring authorities shall submit a joint proposal
to the Association Council, which may adopt a decision.

2.
The monitoring authority of Romania shall be informed
of any acts relating to the adoption, abolition or modification
of the Community criteria of compatibility referred to in para-

(1) Currently the Community de minimis

threshold according to the
Commission Notice on de minimis aid (OJ C 68, 6.3.1996, p. 9) is
EUR 100 000 of total aid per firm over a three-year period.

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PROCEDURES FOR CONSULTATION AND PROBLEM SOLVING

Article 5

Examination of certain aid

1. Where the amount of the aid in question amounts to
over EUR 3 million, aid programmes or individual aid awards,
whether or not covered by frameworks and guidelines in the
Community, may be referred by the relevant monitoring
authority to the Sub-Committee dealing with competition
policy and State aids for examination. The Sub-Committee may
submit a report to the Association Committee which may
adopt appropriate decisions or recommendations concerning
the compatibility of the aid programme or aid award with the
Europe Agreement and these Rules.

2.
The principal purpose of such decisions or recommenda-
tions shall be to avoid the resorting to commercial defence
measures as a consequence of the aid in question.

3.
The Association Committee may decide to extend further
the possibility of examination as provided for in this Article.

Article 6

Request for information

Whenever the monitoring authority of a Party becomes aware
of the fact that an aid programme or individual aid award
it may
appears to affect important interests of that Party,
request information about this from the authority responsible.
In any event, both monitoring authorities shall endeavour to
keep each other informed of important developments that may
be of practical

interest for the other.

Article 7

Consultation and comity

1. Whenever the Commission or the monitoring authority
of Romania considers that
the award of State aid on the
territory for which the other authority is responsible substan-
tially affects its important interests, it may request consultation
with the other authority, and consequently it may request that
the other Party's monitoring authority initiate any appropriate
procedures with a view to taking remedial action. This is
without prejudice to any action under the respective Parties'
relevant legislation and does not hamper the full freedom of
ultimate decision of the authority so addressed, within the
framework of the Europe Agreement.

The monitoring authority so addressed shall give full and
2.
sympathetic consideration to such views and factual material as
may be presented by the requesting authority and in particular
to the alleged harmful effects on the important interests of the
requesting Party.

3. Without prejudice to any of their rights and obligations,
the monitoring authorities involved in consultations under this
Article shall endeavour to find, within three months, a mutu-
ally acceptable solution in the light of the respective important
interests involved.

Article 8

Problem solving

1. Where consultations under Article 7 do not lead to a
mutually acceptable solution, an exchange of views shall take
place within the Sub-Committee dealing with competition
policy and State aids established in the framework of
the
Europe Agreement at the request of one Party within three
months following the request.

2. Where this exchange of views does not lead to a mutually
acceptable solution, or after the expiration of
the period
referred to in paragraph 1, the matter may be submitted to the
Association Committee which may make appropriate recom-
mendations for the settlement of these cases.

3.
These procedures shall be without prejudice to any action
under Article 64(6) of the Europe Agreement and Article 9(3)
of Protocol 2 on European Coal and Steel Community (ECSC)
products to the Europe Agreement. Trade instruments should
however only be used as a last resort.

Article 9

Secrecy and confidentiality of information

1. With respect to Article 64(7) of the Europe Agreement,
neither monitoring authority is required to provide information
to the other authority if disclosure of that information to the
requesting authority is prohibited by the law of the authority
possessing the information.

2.
Each monitoring authority agrees to maintain the confi-
dentiality of any information provided to it in confidence by
the other authority.

TRANSPARENCY

Article 10

Inventory

the

Under

relevant Community programmes,

1.
the
Commission shall assist Romania to draw up and thereafter
update an inventory of its aid programmes and individual aid
awards, established on the same basis as in the Community, in
order to ensure and continuously improve transparency.

2.
The Commission shall provide Romania with regular
information on the documentation it produces with a similar
aim in relation to the Member States of the Community.

Article 11

Mutual information

Both Parties shall ensure transparency in the domain of State
aid by providing for appropriate publications and the exchange
of information on State aid policy on a regular and reciprocal
basis.

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MISCELLANEOUS

Article 12

Administrative assistance (languages)

The Commission and the monitoring authority of Romania shall provide for practical arrangements for
mutual assistance or any other appropriate solution concerning in particular the question of translations.