Invitation to submit comments on the draft Commission Regulation on the application of Articles 87 and 88 of the EC Treaty to de minimis aid in the agriculture and fisheries sector
Date: 2004-04-17
Institutions: European Commission
Subjects: aid system, aid to undertakings, farming sector, fishing industry

17.4.2004

EN

Official Journal of the European Union

C 93/9

Invitation to submit comments on the draft Commission Regulation on the application of Articles
87 and 88 of the EC Treaty to de minimis aid in the agriculture and fisheries sector

(2004/C 93/05)

Interested parties may submit their comments within one month of the date of publication of this draft
Regulation to:

European Commission
Directorate General for Agriculture
Unit H.2
Office Loi 130 05/126
B-1049 Brussels
Fax (32-2) 296 76 72
E-mail: Agri-State-Aids@cec.eu.int

Draft Commission Regulation on the application of Articles 87 and 88 of the EC Treaty to de
minimis aid in the agriculture and fisheries sectors

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 Article 2(1) thereof,

Having published a draft of this Regulation (2),

Having consulted the Advisory Committee on State aid,

Whereas:

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

the Treaty and therefore do not

(2) 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
recently in
Commission Regulation (EC) No 69/2001 (3). In view of
the special
rules which apply in the agriculture and
fisheries sectors, and of the risks that even low levels of

to apply, most

considered not

(1) OJ L 142, 14.5.1998, p. 1.
(2) OJ C . . .
(3) OJ L 10, 13.1.2001, p. 30.

aid could fulfil the criteria of Article 87(1) of the Treaty in
these sectors, Regulation (EC) 69/2001 does not apply to
these sectors.

(3) In the light of the experience acquired by the Commission,
especially since the entry into force of Council Regulation
(EC) No 1257/1999 on support
for rural development
from the European Agricultural Guidance and Guarantee
Fund (EAGGF) and amending and repealing certain Regu-
lations (4), and the Community guidelines for state aid in
the agriculture sector (5), it can be affirmed that very low
levels of aid granted in the agriculture sector do not fulfil
the criteria of Article 87(1) of the Treaty, provided certain
conditions are met. This is the case where both the amount
of aid received by individual producers remains small, and
the overall
level of aid granted to the agriculture sector
does not go above a small percentage of the value of
production. Agricultural production in the Community is
normally characterised by the fact that a commodity is
produced by a large number of very small producers,
producing
goods within the
interchangeable
framework of common organisations of the market. For
this reason, the impact of small amounts of aid granted
to individual producers over a given period of time should
be related to the value of agricultural production at sector
level over the same period of time. A ceiling in the form of
an amount per Member State established on the basis of
in the agriculture sector allows a
the value of output
consistent approach in all Member States, based on an
objective economic reference value. With a view to
increasing transparency and legal certainty, it seems appro-
priate to lay down a de minimis rule for the agriculture
sector of agriculture in a regulation.

largely

(4) OJ L 160, 26.6.1999, p. 80. Regulation as amended by Regulation

(EC) No 1783/2003 (OJ L 270, 21.10.2003, p. 70).

(5) Revised version OJ C 232, 12.8.2000, p. 19.

C 93/10

EN

Official Journal of the European Union

17.4.2004

(4) In the light of the experience of the Commission in the
assessment of State aid in the fisheries sector, especially
since the entry into force of the Community guidelines
for the examination of state aid to fisheries and aqua-
culture (1), and of Council Regulation (EC) No 2782/1999
laying down the detailed rules and arrangements
for
Community structural assistance in the fisheries sector (2),
it can be affirmed that very low levels of aid granted in the
fisheries sector do not fulfil the criteria of Article 87(1) of
the Treaty, provided that certain conditions are met. Given
the similarities of the production patterns in the fisheries
sector and the agriculture sector, these are the cases where
both the amount of aid received by individual enterprises
remains small, and the overall level of aid granted to the
fisheries sector does not go above a small percentage of the
value of production. With a view to increasing trans-
parency and legal certainty,
it seems appropriate to lay
down a de minimis rule for the sector of fisheries in a
regulation.

(5) In the light of

export

aid or

the World Tade Organisation (WTO)
Agreement on Agriculture (3), this Regulation should not
exempt
aid favouring domestic over
imported products. Member States are under an obligation
to refrain from granting any support contrary to the
commitments contained in this Agreement. 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. The case-law of the European Court
of
that, once the Community has
legislated for the establishment of a common organisation
of the market in a given sector of agriculture, Member
States are under an obligation to refrain from taking any
measure which might undermine or create exceptions to
it (4). This principle also applies in the fisheries sector. For
this reason, this Regulation should not apply to aid the
fixed on the basis of price or
amount of which is
quantity of products put on the market.

Justice establishes

Article 87(1) of the Treaty. The three year period should be
mobile, so that for each new grant of de minimis aid, the
total amount of such 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 on the beneficiary. The de
minimis rule is without prejudice that enterprises may
receive, for the same project, State aid authorised by the
Commission or covered by a group exemption Regulation.

it

it

(7) In the interest of transparency, equal treatment and the
application of
is appropriate
the de minimis ceilings,
that Member States should apply the same method of
In order to facilitate this calculation and in
calculation.
accordance with Regulation 69/2001,
is appropriate
that aid amounts not taking the form of a cash grant
should be converted into their gross grant equivalent.
Calculation of
the grant equivalent of aid payable in
several instalments, and calculation of aid in the form of
a soft
rates
require the use of market
loan,
the time of grant. With a view to a
prevailing at
uniform, transparent and simple application of the State
aid rules, the market rates for the purposes of this Regu-
lation should be deemed to be the reference rates, provided
in the case of a soft loan, the loan is backed by
that,
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 Union and
on the Internet.

interest

(6) In the light of the Commission's experience,

it can be
affirmed that aid not exceeding a ceiling of EUR 3 000
per beneficiary over any period of three years, where the
total amount of such aid granted to all enterprises over
three years remains below a ceiling to be set by the
Commission at around 0,3 % of the agricultural output
or of the fisheries output for [2001] does not affect trade
between Member States and/or does not distort or threaten
to distort competition and therefore does not fall under

(1) OJ C 19, 20.1.2001, p. 7.
(2) OJ L 337, 30.12.1999, p. 10, as lastly amended by Regulation

2369/2002 (OJ L 358, 31.12.2002, p. 49)

(3) OJ L 336, 23.12.1994, p. 22.
(4) Case C-113/2000 Spain/Commission, [2002] ECR 2002 I-7601, at

point 73.

(8) The Commission has a duty to ensure that State aid rules
are complied with, 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 establishing the necessary
machinery to ensure that the total amount of aid, granted
under the de minimis rule, does not exceed either the
amount of EUR 3 000 per beneficiary and the overall
ceilings established by the Commission on the basis of
the value of agricultural or fishery output per Member
State over a three-year period. To that end, it is appropriate
that Member States, when granting a de minimis aid, should
inform the enterprise concerned of the de minimis character
of the aid, receive full information about other de minimis
aid received during the previous three years and carefully
check that the de minimis ceilings will not be exceeded by
the new de minimis aid. Alternatively, compliance with the
ceilings may also be ensured by means of a central register.

17.4.2004

EN

Official Journal of the European Union

C 93/11

the

frequency with which it

(9) Having regard to the Commission's experience and in
is generally
particular
necessary 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 it. For the sake of legal certainty, it is appro-
priate to clarify the effect of this Regulation on aid granted
before its entry into force.

HAS ADOPTED THIS REGULATION:

Article 1

Scope

4.

5.

6.

‘enterprises in the fisheries sector’ means enterprises active
in the production, processing and marketing of fisheries
products;

‘fisheries products’ means: both products caught at sea or in
inland waters and the products of aquaculture listed in
Article 1 of Regulation (EC) No 104/2000 (2);

‘processing and marketing of a fisheries product’ means all
including handling, treatment, production and
operations,
distribution, between the time of
landing or harvesting
and the end-product stage.

Article 3

De minimis aid

This Regulation applies to aid granted to enterprises in the
agriculture or fisheries sectors, with the exception of

(a) aid the amount of which is fixed on the basis of price or

quantity of products put on the market;

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

(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;

2.
The total de minimis aid granted to any one enterprise
shall not exceed EUR 3 000 over any period of three years.
This ceiling shall apply irrespective of the form of the aid or
the objective pursued.

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

goods.

The cumulative amount thus granted to various enterprises in
the agriculture sector shall not exceed the value set out per
Member State in Annex 1, over any three-year period.

Article 2

Definitions

The cumulative amount of aid granted to various enterprises in
the fisheries sector shall not exceed the value set out per
Member State in Annex 2, over any three-year period.

For the purpose of this Regulation:

1.

‘enterprises in the agriculture sector’ means enterprises
active in the production, processing and marketing of agri-
cultural products;

2.

‘agricultural product’ means:

(a) the products listed in Annex I of the Treaty, except

fisheries products as defined in point 5;

(b) products falling under CN codes 4502, 4503 and 4504

(cork products);

(c) products intended to imitate or substitute milk and milk
products, as referred to in Article 3(2) of Council Regu-
lation (EEC) No 1898/87 (1);

3.

‘processing of an agricultural product’ means an operation
on a agricultural product where the product resulting from
the operation is also an agricultural product.

figures used shall be gross,

The ceilings in paragraph 2 shall be expressed as a cash
3.
is, before any
grant. All
deduction 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.

that

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 4

Cumulation and monitoring

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

(1) OJ L 182, 3.7.1987, p. 36.

(2) OJ L 17, 21.1.2000, p. 22.

C 93/12

EN

Official Journal of the European Union

17.4.2004

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 three-year period to a
level above either of the ceilings set out in Article 3(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 apply once the register covers a three-year period.

Article 5

Entry into force and period of validity

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

It shall remain in force until 31 December 2006.

all

shall

States

record and compile

the
3. Member
information regarding the application of
this Regulation.
Such records shall contain all information necessary to demon-
strate that the conditions of this Regulation have been fulfilled.
Records regarding an individual de minimis aid shall be main-
tained for 10 years from the date on which the aid 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
the Commission considers necessary for
information that
assessing whether
this Regulation have
the conditions of
been complied with,
in particular the total amount of de
minimis aid received by any enterprise and by the agriculture
or fisheries sector of the Member State concerned.

This Regulation shall also apply to aid granted before its
2.
entry into force,
if it fulfils all the conditions laid down in
Articles 1 and 3 of this Regulation. Any aid which does not
fulfil those conditions shall be assessed by the Commission in
accordance with
guidelines,
relevant
communications and notices.

frameworks,

the

Aid schemes falling under this Regulation shall continue
3.
to benefit from it during an adjustment period of six months
following the date provided for in the second subparagraph of
paragraph 1.

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.

Cumulative amounts for agriculture per Member State as referred to in Article 3(2)

ANNEX 1

Belgium

Denmark

Germany

Greece

Spain

France

Ireland

Italy

Luxembourg

Netherlands

Austria

Portugal

Finland

Sweden

United Kingdom

[EUR 22 077 000]

[EUR 27 294 000]

[EUR 133 470 000]

[EUR 34 965 000]

[EUR 106 755 000]

[EUR 195 216 000]

[EUR 17 637 000]

[EUR 130 164 000]

[EUR 789 000]

[EUR 62 232 000]

[EUR 17 253 000]

[EUR 17 832 000]

[EUR 11 928 000]

[EUR 13 689 000]

[EUR 72 357 000]

17.4.2004

EN

Official Journal of the European Union

C 93/13

Cumulative amounts for fisheries per Member State as referred to in Article 3(2)

ANNEX 2

Belgium

Denmark

Germany

Greece

Spain

France

Ireland

Italy

Luxembourg

Netherlands

Austria

Portugal

Finland

Sweden

United Kingdom

[EUR 1 266 300]

[EUR 5 881 500]

[EUR 6 213 900]

[EUR 2 036 700]

[EUR 13 644 300]

[EUR 11 073 300]

[EUR 1 853 400]

[EUR 9 576 600]

[EUR . . .]

[EUR 3 318 300]

[EUR 77 400]

[EUR 2 679 000]

[EUR 456 000]

[EUR 1 483 800]

[EUR 12 288 600]

Authorisation for State aid pursuant to Articles 87 and 88 of the EC Treaty

Cases where the Commission raises no objections

(2004/C 93/06)

(Text with EEA relevance)

Date of adoption of the decision:

27.2.2004

Member State:

Aid No:

Title:

Objective:

Legal basis:

Budget:

Aid intensity or amount:

Duration:

Other information:

Italy (Umbria)

N 409/03

Measures to support fisheries

Aid for the fisheries and aquaculture sector

Deliberazione della Giunta Regionale della Regione Umbria
17 luglio 2003, n. 1028

65 009 EUR

100 %

One year

Report

The authentic text(s) of the decision, from which all confidential information has been removed, can be
found at

http://europa.eu.int/comm/secretariat_general/sgb/state_aids