Commission Regulation (EC) No 364/2004 of 25 February 2004 amending Regulation (EC) No 70/2001 as regards the extension of its scope to include aid for research and development
Date: 2004-02-25
Institutions: European Commission
Subjects: aid system, aid to undertakings, research and development

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COMMISSION REGULATION (EC) No 364/2004

of 25 February 2004

amending Regulation (EC) No 70/2001 as regards the extension of its scope to include aid for
research and development

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

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 points (a)(i) and (b) of
Article 1(1) thereof,

Having published a draft of this Regulation (2),

Having consulted the Advisory Committee on State Aid,

Whereas:

(1)

(2)

(3)

The definition of small and medium-sized enterprises
(SMEs) used in 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 (3) is that used in Commission
Recommendation
1996
concerning the definition of small and medium-sized
enterprises (4). That Recommendation has been replaced
by Recommendation 2003/361/EC of 6 May 2003
concerning the definition of micro, small and medium-
sized enterprises (5) with effect from 1 January 2005.

96/280/EC

3 April

of

The rules should be clarified in cases where an invest-
ment takes place in an area eligible for regional aid, but
in a sector where regional aid is forbidden. The regional
aid ceilings should only apply if both the region where
the investment is carried out and the sector to which the
beneficiary belongs are eligible for regional aid. The
large individual grants
rules requiring notification of
beyond certain thresholds should be clarified accord-
ingly.

it

is desirable to have a
Experience has shown that
unified and simplified reporting system of annual reports
adopted pursuant to Article 27 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 (6). The specific reporting provisions laid down in
Annex III to Regulation (EC) No 70/2001 should there-
fore only apply until such time as a general reporting
system has been adopted.

(1) OJ L 142, 14.5.1998, p. 1.
(2) OJ C 190, 12.8.2003, p. 3.
(3) OJ L 10, 13.1.2001, p. 33.
(4) OJ L 107, 30.4.1996, p. 4.
(5) OJ L 124, 20.5.2003, p. 36.
(6) OJ L 83, 27.3.1999, p. 1. Regulation as amended by the 2003 Act

of Accession.

(4)

(5)

(6)

(7)

It is necessary to lay down provisions for the assessment
of the compatibility with the common market of any aid
to small and medium-sized enterprises granted without
prior authorisation of the Commission before the entry
into force of Regulation (EC) No 70/2001.

Aid for research and development can contribute to
economic growth, strengthening competitiveness and
boosting employment. Aid for research and development
for SMEs is of utmost importance, because one of the
structural disadvantages of SMEs lies in the difficulty
they may experience in gaining access to new technolo-
gical developments and to technology transfer. At the
same time, the Commission has taken the view in the
Community framework for State aid for research and
development (7) that it may be assumed that State aid for
research and development will represent an incentive for
SMEs to engage in more research and development since
SMEs in general only spend a low percentage of their
turnover on research and development activities. On the
basis of its experience with the application of the Com-
munity framework for State aid for research and devel-
opment to SMEs, the Commission has therefore decided
that it is justified to exempt such aid from prior notifica-
tion, taking also into account that such aid only has very
limited potential to have a negative effect on competi-
tion. This also applies to aid for feasibility studies and
aid to cover patenting costs as well as to individual aid
which does not exceed certain ceilings.

The scope of Regulation (EC) No 70/2001 should there-
fore be extended to cover aid for research and develop-
ment granted to SMEs in the widest possible range of
sectors.

in Regulation (EC) No 70/2001
Certain definitions
should be amended,
in order to take account of the
particularities of State aid for research and development,
and others should be added. In particular, the definitions
of the stages of research and development contained in
Annex I to the Community framework for State aid for
Research and Development should be inserted. The list
of eligible costs should correspond to the list in Annex II
to the framework, with certain clarifications necessary in
order to reflect the fact that a Regulation is directly
applicable in the Member States. Beneficiaries should not
be able to benefit from double subsidisation of identical
research results.

(7) OJ C 45, 17.2.1996, p. 5.

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(8)

The guidance in the Community framework for State aid
for research and development as to whether certain
measures constitute State aid within the meaning of
Article 87(1) of
for the
purposes of this Regulation.

the Treaty remains relevant

(9) With a view to encouraging the dissemination of
research results, SMEs may receive aid for the costs of
obtaining and validating patents and other industrial
property rights resulting from research and development
activities. It should not be a precondition for exempting
such aid that the activity which led to the right in ques-
tion also received aid. It is sufficient that the activity
would have qualified for research and development aid.

(10) Not all research and development aid for SMEs can be
exempted under Regulation (EC) No 70/2001. The
ceiling in the Community framework for State aid for
Research and Development which applies to individual
notifications should also apply in respect of individual
aid which may be exempted under that Regulation.
Special rules should also continue to apply for Eureka
projects falling within the scope of the Declaration of
the Ministerial Conference in Hanover on 6 November
1985 which are considered to be of common European
interest.

(11)

(12)

Regulation (EC) No 70/2001 should not exempt aid
granted in the form of an advance that, expressed as a
percentage of eligible costs, exceeds the aid intensity set
in that Regulation and is repayable only in the event of
a successful outcome of
the research activities as
provided for in the Framework for State aid for Research
and Development, since the Commission assesses reim-
bursable aid on a case by case basis, taking into account
the proposed conditions of reimbursement.

Regulation (EC) No 70/2001, as amended by this regu-
lation, applies only to State aid for Research and Devel-
opment granted to small and medium-sized enterprises.
The Community framework for State aid for research
and development will continue to be used for the assess-
ment of all aid for research and development which is
notified to the Commission.

(13)

Regulation (EC) No 70/2001 should therefore be
amended accordingly,

HAS ADOPTED THIS REGULATION:

Article 1

Regulation (EC) No 70/2001 is amended as follows:

1. Article 1(2) is amended as follows:

(a) point (a) is replaced by the following:

‘(a) with regard to Articles 4 and 5, to activities linked
to the production, processing or marketing of
products listed in Annex I to the Treaty;’

(b) the following point (d) is added:

‘(d) to aid falling within the scope of Council Regu-

lation (EC) No 1407/2002 (*).

(*) OJ L 205, 2.8.2002, p. 1.’;

2. Article 2 is amended as follows:

(a) in point (e) the following subparagraph is added:

‘For aid for research and development (R&D), the gross
aid intensity for an R&D project being carried out in
collaboration between public research establishments
and enterprises shall be calculated on the basis of the
combined aid deriving from direct government support
for a specific research project and, where they consti-
tute aid, contributions from public non-profit-making
higher education or research establishments to the
project.’;

(b) the following points (h), (i) and (j) are added:

‘(h) “fundamental

research”

shall mean an activity
designed to broaden scientific
and technical
knowledge not linked to industrial or commercial
objectives;

(i) “industrial research” shall mean planned research
or critical investigation aimed at the acquisition of
the objective being that such
new knowledge,
in developing new
knowledge may be useful
in bringing
products, processes or services or
about
in existing
improvement
significant
products, processes or services;

a

(j) “pre-competitive development”

shall mean the
shaping of the results of industrial research into a
plan, arrangement or design for new, altered or
improved products, processes or services, whether
they are intended to be sold or used, including the
creation of an initial prototype which could not be
used commercially. This may also include the
conceptual
formulation and design of other
products, processes or services and initial demon-
stration projects or pilot projects, provided that
such projects cannot be converted or used for
industrial applications or commercial exploitation.
It does not include the routine or periodic changes
made to products, production lines, manufacturing
processes, existing services and other operations in
progress, even if such changes may represent
improvements.’;

3.

in Article 4, paragraphs 2 and 3 are replaced by the
following:

‘2. Where the investment takes place in areas or in
sectors which do not qualify for regional aid pursuant to
Article 87(3)(a) and (c) of the Treaty at the moment the aid
is granted, the gross aid intensity shall not exceed:

(a) 15 % in the case of small enterprises;

(b) 7,5 % in the case of medium-sized enterprises.

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3. Where the investment takes place in areas and in
sectors which qualify for regional aid at the moment the
aid is granted, the aid intensity shall not exceed the ceiling
of
investment aid determined in the map
approved by the Commission for each Member State by
more than:

regional

(a) 10 percentage points gross in areas covered by Article
87(3)(c), provided that the total net aid intensity does
not exceed 30 %; or

(b) 15 percentage points gross in areas covered by Article
87(3)(a), provided that the total net aid intensity does
not exceed 75 %.

The higher regional aid ceilings shall only apply if the aid
is granted under the condition that the investment is main-
tained in the recipient region for at least five years and the
beneficiary's contribution to its financing is at least 25 %.’;

4. the following Articles 5a, 5b and 5c are inserted:

‘Article 5a

Aid for research and development

Aid for research and development shall be compa-
1.
tible with the common market within the meaning of
Article 87(3)(c) of the Treaty and shall be exempt from the
notification requirement of Article 88(3) of the Treaty if it
fulfils the conditions set out in paragraphs 2 to 5.

2.
The aided project must completely fall within the
stages of research and development defined in Article 2(h),
(i) and (j).

The gross aid intensity, as calculated on the basis of

3.
the eligible costs of the project, shall not exceed:

(a) 100 % for fundamental research;

(b) 60 % for industrial research;

(c) 35 % for pre-competitive development.

If a project includes different stages of research and devel-
opment, the permissible aid intensity shall be established
on the basis of the weighted average of the respective
permissible aid intensities, calculated on the basis of the
eligible costs involved.

In the case of collaborative projects, the maximum amount
of aid for each beneficiary shall not exceed the permitted
aid intensity calculated by reference to the eligible costs
incurred by the beneficiary concerned.

4.
The ceilings in paragraph 3 may be increased as
follows up to a maximum gross aid intensity of 75 % for
industrial research and 50 % for pre-competitive develop-
ment:

(a) where the project takes place in an area which, at the
time when the aid is granted, qualifies for regional aid,
the maximum aid intensity may be increased by 10

percentage points gross in areas covered by Article
87(3)(a) of the Treaty and by five percentage points
gross in areas covered by Article 87(3)(c) of the Treaty;

tasks and technical

(b) where the project aims at carrying out research with
potential multi-sectoral application and focuses on a
multidisciplinary approach in accordance with the
objective,
targets of a specific
project or programme undertaken under the Sixth
Framework Programme for research and development,
established by Decision No 1513/2002/EC of the Euro-
pean Parliament and of the Council (*) or any subse-
quent Framework Programme for research and devel-
opment or Eureka, the maximum aid intensity may be
increased by 15 percentage points gross;

(c) the maximum aid intensity may be increased by 10
percentage points if one of the following conditions is
satisfied:

(i) the project involves effective cross-border coopera-
tion between at least two independent partners in
two Member States, particularly in the context of
coordinating national R&D policies; no single
company in the Member State granting the aid
may bear more than 70 % of the eligible costs; or

(ii) the project involves effective cooperation between
a company and a public research body, particu-
larly in the context of coordination of national
R&D policies, where the public research body
bears at least 10 % of the eligible project costs and
has the right to publish the results insofar as they
stem from research implemented by that body; or

(iii) the results of the project are widely disseminated
through technical and scientific conferences or
published in peer-reviewed scientific and technical
journals.

For the purposes of points (i) and (ii) subcontracting is
not considered to be effective cooperation.

Eligible costs for the purposes of this Article shall be

5.
the following:

(a) personnel costs (researchers,

technicians and other
to the extent employed on the

supporting staff
research project);

(b) costs of instruments and equipment to the extent and
for the duration used for the research project. If such
instruments and equipment are not used for their full
life for the research project, only the depreciation costs
corresponding to the life of the research project, as
calculated on the basis of good accounting practice,
are considered as eligible;

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(c) costs for buildings and land, to the extent and for the
duration used for the research project. With regard to
buildings, only the depreciation costs corresponding to
the life of the research project, as calculated on the
basis of good accounting practice, are considered as
eligible. For land, costs of commercial transfer or actu-
ally incurred capital costs are eligible;

(d) cost of consultancy and equivalent services used exclu-
sively for the research activity, including research, tech-
nical knowledge and patents bought or licensed from
outside sources at market prices, where the transaction
has been carried out at arm's length and there is no
element of collusion involved. These costs are only
considered eligible up to 70 % of total eligible project
costs;

(c) costs incurred in defending the validity of the right
during the official prosecution of the application and
possible opposition proceedings, even if such costs
occur after the right is granted.

(*) OJ L 232, 29.8.2002, p. 1.’;

5. Article 6 is replaced by the following:

‘Article 6

Large individual aid grants

1.
In the case of aid covered by Articles 4 and 5, this
Regulation shall not exempt an individual aid grant where
one of the following thresholds is met:

(a) the total eligible costs of the whole project are at least

(e) additional overheads incurred directly as a result of the

EUR 25 000 000; and

research project;

(f) other operating expenses, including costs of materials,
supplies and similar products incurred directly as a
result of the research activity.

Article 5b

Aid for technical feasibility studies

Aid for technical feasibility studies preparatory to indus-
trial research activities or pre-competitive development
activities shall be compatible with the common market
within the meaning of Article 87(3)(c) of the Treaty and
shall be exempt
from the notification requirement of
Article 88(3) of the Treaty provided that the gross aid
intensity, as calculated on the basis of study costs, does not
exceed 75 %.

Article 5c

Aid for patenting costs

1.
Aid for the costs associated with obtaining and vali-
dating patents and other industrial property rights shall be
compatible with the common market within the meaning
of Article 87(3)(c) of the Treaty and shall be exempt from
the notification requirement of Article 88(3) of the Treaty
up to the same level of aid as would have qualified as R&D
aid in respect of the research activities which first led to
the industrial property rights concerned.

Eligible costs for the purposes of paragraph 1 shall

2.
be the following:

jurisdiction,

(a) all costs preceding the grant of the right in the first
legal
relating to the
including costs
preparation, filing and prosecution of the application
as well as costs incurred in renewing the application
before the right has been granted;

(b) translation and other costs incurred in order to obtain
the granting or validation of the right in other legal
jurisdictions;

(i) in areas or in sectors which do not qualify for
regional aid, the gross aid intensity is at least 50 %
of the ceilings laid down in Article 4(2);

(ii) in areas and in sectors which qualify for regional
aid, the net aid intensity is at least 50 % of the net
aid ceiling as determined in the regional aid map
for the area concerned; or

(b) the total gross aid amount is at least EUR 15 000 000.

2.
In the case of aid covered by Articles 5a, 5b and 5c,
this Regulation shall not exempt an individual aid grant
where the following thresholds are met:

(a) the total eligible costs of the whole project incurred by
all companies participating in the project are at least
EUR 25 000 000; and

(b) it is proposed to provide aid with a gross grant equiva-
lent of at least EUR 5 000 000 to one or more of the
individual companies.

In the case of aid granted to a Eureka project, the thresh-
olds in the first subparagraph shall be replaced by the
following:

(a) the total eligible costs of the Eureka project incurred
by all companies participating in the project are at
least EUR 40 000 000; and

(b) it is proposed to provide aid with a gross grant equiva-
lent of at least EUR 10 000 000 to one or more of the
individual companies.’;

6. the following Article 6a is inserted:

‘Article 6a

Aid remaining subject to prior notification to the
Commission

1.
This Regulation shall not exempt any aid, whether
individual aid or aid granted under an aid scheme, in the
form of one or more advances that are repayable only in
the event of a successful outcome of research activities,
where the total amount of the advances expressed as a
percentage of
the eligible costs exceeds the intensities
provided for in Articles 5a, 5b or 5c or the limit fixed in
Article 6(2).

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This Regulation is without prejudice to any obliga-
2.
tion on a Member State to notify individual grants of aid
under other State aid instruments, and in particular the
obligation to notify, or to inform the Commission of, aid
to an enterprise receiving restructuring aid within the
meaning of the Community guidelines on State aid for
rescuing and restructuring firms in difficulty (*) and the
obligation to notify regional aid for large investment
projects under the applicable multisectoral Framework.

(*) OJ C 288, 9.10.1999, p. 2.’;

7.

in Article 8, paragraph 1 is replaced by the following:

‘1.
The aid ceilings fixed in Articles 4 to 6 shall apply
regardless of whether the support for the aided project is
financed entirely from State resources or is partly financed
by the Community.’;

8.

in Article 9, paragraph 3 is replaced by the following:

‘3. Member States shall compile an annual report on the
application of
this Regulation in accordance with the
implementing provisions concerning the form and content
of annual reports provisions which are laid down pursuant
to Article 27 of Council Regulation (EC) No 659/1999 (*).

Until such provisions enter into force, Member States shall
compile an annual report on the application of this Regu-
lation in respect of the whole or part of each calendar year
during which this Regulation applies,
in the form laid
down in Annex III, also in computerised form. Member
States shall provide the Commission with such report no
later than three months after the expiry of the period to
which the report relates.

9. The following Article 9a is inserted:

‘Article 9a

Transitional provisions

1.
Notifications concerning aid for Research and Devel-
opment pending on 19 March 2004 shall continue to be
assessed under the Framework for State aid for Research
and Development, while all other pending notifications
shall be assessed in accordance with the provisions of this
regulation.

2.
Aid schemes implemented before the date of entry
into force of this Regulation, and aid granted under such
schemes in the absence of a Commission authorisation and
in breach of the notification requirement of Article 88(3)
the Treaty, shall be compatible with the common
of
market within the meaning of Article 87(3) of the Treaty
and shall be exempt if they fulfil the conditions laid down
in Article 3(2)(a) and Article 3(3) of this Regulation.

Individual aid outside any scheme granted before the date
of entry into force of this Regulation in the absence of a
Commission authorisation and in breach of the notification
requirement of Article 88(3) of the Treaty, shall be compa-
tible with the common market within the meaning of
Article 87(3) of the Treaty and shall be exempt if it fulfils
all the conditions of this Regulation, except the require-
ment in Article 3(1) that express reference be made to this
Regulation.

Any aid which does not fulfil these conditions shall be
assessed by the Commission in accordance with the rele-
vant
and
notices.’;

communications

frameworks,

guidelines,

10. Annex I

is replaced by the text in the Annex to this

Regulation.

Article 2

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

(*) OJ L 83, 27.3.1999, p. 1.’

Point 10 of Article 1 shall apply from 1 January 2005.

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

Done at Brussels, 25 February 2004.

For the Commission

Mario MONTI

Member of the Commission

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ANNEX

‘ANNEX I

Definition of small and medium-sized enterprises

(Extract from Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of small and medium sized
enterprises, OJ L 124, 20.5.2003, p. 36)

DEFINITION OF MICRO, SMALL AND MEDIUM-SIZED ENTERPRISES ADOPTED BY THE COMMISSION

Article 1

Enterprise

An enterprise is considered to be any entity engaged in an economic activity, irrespective of its legal form.
This includes, in particular, self-employed persons and family businesses engaged in craft or other activities,
and partnerships or associations regularly engaged in an economic activity.

Article 2

Staff headcount and financial ceilings determining enterprise categories

1.
The category of micro, small and medium-sized enterprises (SMEs) is made up of enterprises which
employ fewer than 250 persons and which have an annual turnover not exceeding 50 million euro, and/or
an annual balance sheet total not exceeding EUR 43 million.

2. Within the SME category, a small enterprise is defined as an enterprise which employ fewer than 50
persons and whose annual turnover and/or annual balance sheet total does not exceed EUR 10 million.

3. Within the SME category, a micro-enterprise is defined as an enterprise which employs fewer than
10 persons and whose annual turnover and/or annual balance sheet total does not exceed EUR 2 million.

Article 3

Types of enterprise taken into consideration in calculating staff numbers and financial amounts

An “autonomous enterprise” is any enterprise which is not classified as a partner enterprise within

1.
the meaning of paragraph 2 or as a linked enterprise within the meaning of paragraph 3.

“Partner enterprises” are all enterprises which are not classified as linked enterprises within the
2.
meaning of paragraph 3 and between which there is the following relationship: an enterprise (upstream
enterprise) holds, either solely or jointly with one or more linked enterprises within the meaning of para-
graph 3, 25 % or more of the capital or voting rights of another enterprise (downstream enterprise).

However, an enterprise may be ranked as autonomous, and thus as not having any partner enterprises,
even if this 25 % threshold is reached or exceeded by the following investors, provided that those investors
are not linked, within the meaning of paragraph 3, either individually or jointly to the enterprise in ques-
tion:

(a) public investment corporations, venture capital companies, individuals or groups of individuals with a
regular venture capital investment activity who invest equity capital in unquoted businesses (business
angels), provided the total investment of those business angels in the same enterprise is less than
EUR 1 250 000;

(b) universities or non-profit research centres;

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(c) institutional investors, including regional development funds;

(d) autonomous local authorities with an annual budget of less than EUR 10 million and less than 5 000

inhabitants.

3.

“Linked enterprises” are enterprises which have any of the following relationships with each other:

(a) an enterprise has a majority of the shareholders' or members' voting rights in another enterprise;

(b) an enterprise has the right to appoint or remove a majority of the members of the administrative,

management or supervisory body of another enterprise;

(c) an enterprise has the right to exercise a dominant influence over another enterprise pursuant to a
contract entered into with that enterprise or to a provision in its memorandum or articles of associa-
tion;

(d) an enterprise, which is a shareholder in or member of another enterprise, controls alone, pursuant to
an agreement with other shareholders in or members of that enterprise, a majority of shareholders' or
members' voting rights in that enterprise.

There is a presumption that no dominant influence exists if the investors listed in the second subparagraph
of paragraph 2 are not involving themselves directly or indirectly in the management of the enterprise in
question, without prejudice to their rights as stakeholders.

Enterprises having any of the relationships described in the first subparagraph through one or more other
enterprises, or any one of the investors mentioned in paragraph 2, are also considered to be linked.

Enterprises which have one or other of such relationships through a natural person or group of natural
persons acting jointly are also considered linked enterprises if they engage in their activity or in part of
their activity in the same relevant market or in adjacent markets.

An “adjacent market” is considered to be the market for a product or service situated directly upstream or
downstream of the relevant market.

4.
Except in the cases set out in paragraph 2, second subparagraph an enterprise cannot be considered
an SME if 25 % or more of the capital or voting rights are directly or indirectly controlled, jointly or indivi-
dually, by one or more public bodies.

5.
Enterprises may make a declaration of status as an autonomous enterprise, partner enterprise or
linked enterprise, including the data regarding the ceilings set out in Article 2. The declaration may be
made even if the capital is spread in such a way that it is not possible to determine exactly by whom it is
held, in which case the enterprise may declare in good faith that it can legitimately presume that it is not
owned as to 25 % or more by one enterprise or jointly by enterprises linked to one another. Such declara-
tions are made without prejudice to the checks and investigations provided for by national or Community
rules.

Article 4

Data used for the staff headcount and the financial amounts and reference period

1.
The data to apply to the headcount of staff and the financial amounts are those relating to the latest
approved accounting period and calculated on an annual basis. They are taken into account from the date
of closure of the accounts. The amount selected for the turnover is calculated excluding value added tax
(VAT) and other indirect taxes.

2. Where, at the date of closure of the accounts, an enterprise finds that, on an annual basis, it has
exceeded or fallen below the headcount or financial ceilings stated in Article 2, this will not result in the
loss or acquisition of the status of medium-sized, small or micro-enterprise unless those ceilings are
exceeded over two consecutive accounting periods.

In the case of newly-established enterprises whose accounts have not yet been approved, the data to

3.
apply is to be derived from a bona fide estimate made in the course of the financial year.

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Article 5

Staff headcount

The headcount corresponds to the number of annual work units (AWU), i.e. the number of persons who
worked full-time within the enterprise in question or on its behalf during the entire reference year under
consideration. The work of persons who have not worked the full year, the work of those who have
worked part-time, regardless of duration, and the work of seasonal workers are counted as fractions of
AWU. The staff consists of:

(a) employees;

(b) persons working for the enterprise being subordinated to it and deemed to be employees under

national law;

(c) owner-managers;

(d) partners engaging in a regular activity in the enterprise and benefiting from financial advantages from

the enterprise.

Apprentices or students engaged in vocational training with an apprenticeship or vocational training
contract are not included as staff. The duration of maternity or parental leaves is not counted.

Article 6

Establishing the data of an enterprise

In the case of an autonomous enterprise, the data, including the number of staff, are determined

1.
exclusively on the basis of the accounts of that enterprise.

2.
The data, including the headcount, of an enterprise having partner enterprises or linked enterprises
are determined on the basis of the accounts and other data of the enterprise or, where they exist, the
consolidated accounts of the enterprise, or the consolidated accounts in which the enterprise is included
through consolidation.

To the data referred to in the first subparagraph are added the data of any partner enterprise of the enter-
prise in question situated immediately upstream or downstream from it. Aggregation is proportional to the
percentage interest in the capital or voting rights (whichever is greater). In the case of cross-holdings, the
greater percentage applies.

To the data referred to in the first and second subparagraph are added 100 % of the data of any enterprise,
which is linked directly or indirectly to the enterprise in question, where the data were not already included
through consolidation in the accounts.

For the application of paragraph 2, the data of the partner enterprises of the enterprise in question
3.
are derived from their accounts and their other data, consolidated if they exist. To these are added 100 %
of the data of enterprises which are linked to these partner enterprises, unless their accounts data are
already included through consolidation.

For the application of the same paragraph 2, the data of the enterprises which are linked to the enterprise
in question are to be derived from their accounts and their other data, consolidated if they exist. To these
are added, pro rata, the data of any possible partner enterprise of that linked enterprise, situated immedi-
ately upstream or downstream from it, unless it has already been included in the consolidated accounts
with a percentage at least proportional to the percentage identified under the second subparagraph of para-
graph 2.

4. Where in the consolidated accounts no staff data appear for a given enterprise, staff figures are calcu-
lated by aggregating proportionally the data from its partner enterprises and by adding the data from the
enterprises to which the enterprise in question is linked.’