State aid — United Kingdom — State aid No C 39/06 (ex NN 94/05) — First Time Shareholders scheme — Invitation to submit comments pursuant to Article 88(2) of the EC Treaty   (Text with EEA relevance)
Date: 2006-11-30
Institutions: European Commission
Subjects: State aid, United Kingdom, aid system, control of State aid, exchange of information, fishing vessel, shareholding

30.11.2006

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Official Journal of the European Union

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STATE AID — UNITED KINGDOM

State aid No C 39/06 (ex NN 94/05)

First Time Shareholders scheme

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

(2006/C 291/04)

(Text with EEA relevance)

By means of the letter dated 13 September 2006 reproduced in the authentic language on the pages
following this summary, the Commission notified the United Kingdom of Great Britain and Northern
Ireland 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 within one month of the date of publication of this
summary and the following letter, to:

European Commission
Directorate General for Fisheries
DG FISH/D/3 ‘Legal Issues’
B-1049 Brussels
Fax: (32-2) 295 19 42

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

SUMMARY

In June 2004 the Commission was informed of aid granted by
the Shetland Islands Council, the public authority in the Shet-
land Islands of the United Kingdom, to the fisheries sector
which possibly concerned illegal State aid.

Under the scheme for first time shareholders grants were given
as contribution to matching own financial contribution for the
purchase of a share in an existing or new fishing vessel. Aid of
50 % of the acquisition costs of the share, with a maximum of
GBP 7 500 in case of an existing vessel and GBP 15 000 in
case of a new vessel, with a maximum of 25 % of the value of
the vessel, was granted to persons over 18 years old that do
not yet own a share in a fishing vessel. The aid was granted
under the condition that the vessel was used for full time
fishing for the next 5 years and that the beneficiary retained his
share in the vessel for a period of five years from receipt of the
aid.

According to Article 88 (3) of the EC Treaty Member State
have to inform the Commission of any plans to grant or alter
aid. According to the United Kingdom, the scheme has been
applied from 1982 until 14 January 2005. However,
the
United Kingdom confirmed that the scheme was never notified
to the Commission, as result of which the aid measure has to
be considered as new aid.

Council Regulation (EC) No 659/1999 (1) does not lay down
any limitation period for the examination of unlawful aid.

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
down detailed rules for the application of Article 93 of the EC
Treaty, OJ L 83, 27.3.1999, p. 1. Regulation as amended by the Act
of Accession of 2003.

that Regulation stipulates that

However, Article 15 of
the
powers of the Commission to recover aid is subject to a limita-
tion period of ten years, that the limitation period begins on
the day on which the aid is awarded to the beneficiary and that
that limitation period is interrupted by any action taken by the
Commission. Consequently, the Commission considers that it is
not necessary in this case to examine the aid granted more
than ten years before any measure taken by the Commission
concerning it. The Commission considers that the limitation
period was interrupted by its request for information sent to
the United Kingdom on 24 August 2004. Accordingly, the
limitation period applies to aid granted to beneficiaries before
24 August 1994 and the Commission assesses below only aid
granted by decisions taken between 24 August 1994 and 14
January 2005. According to the information available to the
time approximately
It seems that during that
Commission.
GBP 8 000 000 have been granted under the scheme.

The measures appear to be State aid in the sense of Article 87
of the EC Treaty. State aid can be declared compatible with the
common market if it complies with one of the exceptions fore-
seen in the EC-Treaty. State aid to the fisheries sector may be
deemed to be compatible with the common market if they
comply with the conditions of Guidelines for the examination
of State aid to fisheries and aquaculture applicable at the time
of granting of the aid (2).

With regard to the aid granted for the acquisition of a share in
a used vessel, according to the 1994, 1997 and 2001 Guide-
lines, the aid may be deemed compatible with the common
market when the aid is intended to enable sea-fishermen to
acquire part ownership or to replace a vessel after its total loss
and the vessel is not older than 20 years and can be used for at

(2) OJ C 260, 17.9.94, p. 3; OJ C 100, 27.3.1997, p. 12 and OJ C 19,

20.1.2001, p. 7; OJ C 229, 14.9.2004, p. 5.

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least another 10 years. The 2004 Guidelines are more strict
and refer to the conditions laid down in Article 12(3)(d) an
12(4)(f) of Regulation (EC) No. 2792/1999, which contain addi-
tional requirements with regard to the age of the beneficiary
and the overall length of the vessel. According to the 1994 and
1997 Guidelines the total amount of aid to be granted may not
exceed 30 % of the actual costs of the acquisition of the vessel.
Under the 2001 Guidelines this is lowered to 20 %.

At this stage the aid granted for the acquisition of a share in a
used vessel seems not to comply with the conditions estab-
lished by the Guidelines. Furthermore the scheme allows aid up
to a maximum of 25 % of the actual cost of the acquisition of
the vessel, which would be incompatible with the requirements
under the 2001 Guidelines.

With regard to the aid granted for the acquisition of a share in
a new vessel, according to point 2.2.3.1. of the 1994 and 1997
Guidelines aid for the construction of new fishing vessels may
be deemed compatible with the common market provided that
it complies with the relevant conditions of Regulation (EC) No
3699/93. The vessels must be built in compliance with the
objective under the Multi-annual Guidance Programme (MAGP)
and must comply with the regulations and directives governing
hygiene and safety and Community provisions concerning the
dimension of vessels. The vessels have to be registered in the
fleet register.

Under the 2001 Guidelines reference is made to the conditions
of Regulation (EC) No 2792/1999, where it is stated that an
entry of new capacity should be compensated by the with-
drawal of a capacity without public aid which is at least equal
to the new capacity introduced in the segments concerned.
Until 31 December 2001, where the objectives were not yet
respected, the withdrawal of capacity should at least be 30 %
more than the new capacity introduced. Further condition is
that the aid may only be granted where the Member State has
submitted the information concerning the application of the
Multi-annual Guidance Programme (MAGP) as required under
Article 5 of that Regulation and has complied with its obliga-
tions under Regulation (EEC) No 2930/86 concerning the char-
acteristics of fishing vessels, has implemented the arrangements
under Article 6 of Regulation (EC) No 2792/1999 and has
complied with the overall MAGP-objectives.

As the scheme makes no reference to the reference level for the
size of the fishing fleet nor to the hygiene and safety require-
ment and there is no obligation for the registration of the
vessel in the fleet register, the Commission at this stage has
serious doubts on the compatibility of the aid for the acquisi-
tion of a share in a new vessel granted in the period after 1
July 2001.

In view of the foregoing analysis the Commission has decided
not to raise any objections to this aid scheme as far as it
concerns the aid granted for the acquisition of a share in a new
vessel granted before 1 July 2001. However, with regard to the
aid granted under the scheme for the acquisition of a share in a
new vessel after 1 July 2001 and all aid granted for the acquisi-
tion of a share in second hand vessels, the Commission has, at
this
serious doubts on the compatibility with the
stage,
common market.

In accordance with Article 14 of Council Regulation (EC) No
659/1999, all unlawful aid can be subject to recovery from the
recipient.

TEXT OF LETTER

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

1. PROCEDURE

(2) By letter of 15 June 2004 the Commission was informed
by a citizen of the UK of unlawful aid granted by the
authorities of the Shetland Islands of the UK. By letters of
24 August 2004, 4 February, 11 May and 16 December
2005 the Commission has requested the UK authorities to
provide information about these measures, to which the
UK authorities responded by letters of 10 December
2004, 6 April, 8 September 2005 and 31 January 2006.

2. DESCRIPTION

(3) The Shetland Islands Council (SIC), the public authority in
Shetland, has made payments to the fisheries sector under
the scope of two general aid measures named “Aid to the
Fish Catching and Processing Industry” and “Aid to the
Fish Farming Industry”, which actually consisted of several
different types of aid schemes. One of these schemes is
the so-called First time shareholders scheme. Under the
First time shareholders scheme, which was applied from
1982 until 14 January 2005, grants could be given as
contribution to matching own financial contribution for
the purchase of a share in an existing or new fishing
vessel. Aid was only granted to persons over 18 years old
that did not yet own a share in a fishing vessel.

(4) Aid was granted for 50 % of the acquisition costs of the
share, with a maximum of GBP 7 500 in case of an
existing vessel and GBP 15 000 in case of a new vessel.
The other 50 % may only be financed by the beneficiaries
own contribution, derived either from his own savings or
from any interest-free family loan. The amount of aid may
never exceed 25 % of the value of the vessel.

(5) The aid was granted under the condition that the vessel is
used for full time fishing for the next 5 years and that the
beneficiary retained his share in the vessel for a period of
five years from receipt of the aid.

3. COMMENTS FROM THE UNITED KINGDOM

that

(6) The United Kingdom states

the aid measures
concerned have already been applied already before the
the United Kingdom to the European
accession of
Economic Community. The United Kingdom is however
not able to provide any evidence of the existence of these
measures at the time of accession.

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(7) The United Kingdom confirms that the aid measures have
been changed over the years and that these changes have
not been notified to the Commission in accordance with
Article 88(3) of the EC Treaty (former Article 93(3)). The
United Kingdom states however that the expenditure and
application of the measures have been reported yearly to
the Commission by way of the annual State aid inventory
and that the officials responsible for the aids believed that
by transmitting the annual reports no notification of the
aid would be necessary.

that where

(8) Finally the United Kingdom states

the
measures and the amendments to the schemes might have
been applied without prior notification to the Commis-
sion, they were applied in accordance with the conditions
laid down in the Guidelines for the examination of State
aid to fisheries and aquaculture applicable at the time aid
was granted under the measures.

(9) In addition, with regard to the First time shareholder
scheme the United Kingdom states that the scheme was in
operation until 14 January 2005, but that actually no
assistance has been awarded during the financial years
2003/2004 and 2004/2005 as there were no applications.
Furthermore, they state that they consider the aid to have
been compatible with Guidelines for the examination of
State aid to fisheries and aquaculture applicable at the
times concerned.

4. ASSESSMENT

(10) It must be determined first if the scheme can be regarded
as State aid and if this is the case, if this aid is compatible
with the common market.

the public authority of Shetland,

(11) Aid has been granted to a limited number of companies
within the fisheries sector and is thus of a selective nature.
The aids have been granted by the Shetland Islands
from State
Council,
resources and are in the benefit of these companies which
are in direct competition with other companies in the
fisheries sector of both within the United Kingdom as well
as in other Member States. Therefore, the measures distort
or threaten to distort competition and appear to be State
aid in the sense of Article 87 of the EC Treaty.

4.1. Legality

(12) According to the United Kingdom,

the two general
schemes have been applied before the accession of the
United Kingdom to the European Economic Community.
However, the Commission notes that according to the
provided information, the First time shareholders scheme
was put in place only 1982. In any event, due to the
absence of past records, the United Kingdom acknowl-
edged that it is not able to provide evidence that the aid
measures existed already before the United Kingdom
joined the union and thus would have to be regarded as
existing aids. In addition, the United Kingdom confirmed
that the aid schemes have been changed over the years
and that these changes have not been notified to the
Commission in accordance with Article 88(3) of the EC
Treaty (former Article 93(3)). As a result, the aid measures
have to be considered as new aid.

(13) The Commission regrets that the United Kingdom did not
respect Article 88(3) of
the EC Treaty, under which
Member State are obliged to inform the Commission of
any plans to grant or alter aid. In this respect the United
Kingdom has stated that its authorities were mistakenly
convinced that the inclusion of the measures into the
annual State aid inventory, yearly submitted to the
Commission, would be sufficient to inform the Commis-
sion of the aid in question. It must be noted however that
such reporting to the Commission can not be considered
as notification of the aid as required under Article 88(3)
of the EC Treaty.

4.2. Basis for the assessment

(14) Council Regulation (EC) No 659/1999 (3) does not lay
down any limitation period for
the examination of
unlawful aid within the meaning of Article 1(f) thereof,
i.e. aid implemented before the Commission is able to
reach a conclusion about
its compatibility with the
common market. However, Article 15 of that Regulation
stipulates that the powers of the Commission to recover
aid is subject to a limitation period of ten years, that the
limitation period begins on the day on which the aid is
awarded to the beneficiary and that that limitation period
is interrupted by any action taken by the Commission.
Consequently, the Commission considers that it is not
necessary in this case to examine the aid covered by the
i.e. aid granted more than ten years
limitation period,
before any measure taken by the Commission concerning
it.

(15) The Commission considers that in this case the limitation
period was interrupted by its request for information sent
to the United Kingdom on 24 August 2004. Accordingly,
the limitation period applies to aid granted to beneficiaries
before 24 August 1994. Consequently, the Commission
will asses below only the aid granted by decisions taken
between 24 August 1994 and January 2005. It seems that
during that
time approximately GBP 8 000 000 have
been granted under the scheme.

(16) State aid can be declared compatible with the common
market if it complies with one of the exceptions foreseen
in the EC Treaty. As regards the State aid to the fisheries
sector, State aid measures are deemed to be compatible
with the common market if they comply with the condi-
tions of Guidelines for the examination of State aid to
fisheries and aquaculture. According to point 5.3 of the
current Guidelines (4)
aid” within the
meaning of Article 1(f) of Regulation (EC) No 659/1999
will be appraised in accordance with the guidelines applic-
able at the time when the administrative act setting up the
aid has entered into force. The aid is thus to be assessed
on the compatibility with the Guidelines of 1994, 1997
and 2001 (5).

an “unlawful

(3) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
down detailed rules for the application of Article 93 of the EC
Treaty, OJ L 83, 27.3.1999, p. 1. Regulation as amended by the Act
of Accession of 2003.
(4) OJ C 229, 14.9.2004, p. 5.
(5) OJ C 260, 17.9.1994, p. 3; OJ C 100, 27.3.1997, p. 12 and OJ C

19, 20.1.2001, p. 7.

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4.3. Used vessels

4.3.1. Guidelines of 1994, 1997 and 2001

(17) With regard to aid for the acquisition of a share in a
second hand vessel, according to point 2.2.3.3 of the
1994, 1997 and 2001 Guidelines, such aid may be
deemed compatible with the common market when the
vessel can be used for at least another 10 years. Under the
1994, 1997 Guidelines the vessel has to be at least 10
years old, under the 2001 Guidelines 20 years. According
to all guidelines the aid should be intended to enable sea-
fishermen to acquire part ownership or to replace a vessel
after its total loss.

(18) With regard to the aid rate, under the 1994 and 1997
Guidelines the total amount of aid to be granted may not
exceed 50 % of the participation rate provided for in
Annex IV to Regulation (EC) No 3699/93, applying the
scale relating to construction aid set out in that Annex. As
Shetland is an Objective I region, the maximum participa-
tion rate is set at 60 %. Thus the aid for sea-fishermen to
acquire part ownership of a second hand vessel may not
exceed 30 % of the actual costs of the acquisition of the
vessel.

(19) Under the 2001 Guidelines this provision is amended and
it is stated that the rate of the aid may not exceed in
subsidy equivalent 20 % of the actual cost of the acquisi-
tion of the vessel.

(23) With regard to the above, the Commission at this stage
has serious doubts on the compatibility with the common
market of the aid granted for the acquisition of a share in
used vessels.

4.4. New vessels

4.4.1. Guidelines of 1994 and 1997

(24) With regard to aid for the acquisition of a share in new
vessels, point 2.2.3.1 of the 1994 and the 1997 Guide-
lines apply. According to those guidelines, aid for the
construction of new fishing vessels may be deemed
compatible with the common market provided that it
complies with the relevant conditions of Regulation (EC)
No 3699/93 (6).

Regulation (EC) No 3699/93

for the size of

(25) According to the conditions laid down in Articles 7 and
10 and Annex III (paragraph 1.3) of Regulation (EC) No
3699/93, the vessels must be built in compliance with the
objectives set
the
Member State concerned under the mulitannual guidance
programme (MAGP) and must comply with the regula-
tions and directives governing hygiene and safety and
Community provisions concerning the dimension of
vessels. The vessels have to be registered in the fleet
register.

the fishing fleet of

4.3.2. Compatibility

4.4.2. Guidelines of 2001

(20) Under the scheme aid was granted for individuals who
acquired for the first time a share in a second hand vessel.
According to the Guidelines aid could only be granted
with regard to vessels, not older than 20 years, that could
be used for at least another 10 years. The scheme does
not contain any conditions with regard to the age of the
the aid are
vessels. The fact
the beneficiaries of
obliged to keep their share in the vessel
least
for at
another five years and to use the vessel for fishing during
those years seems to insure that aid is granted for vessels
that are still operational and to be used for some years.
However, this condition is insufficient to comply with the
requirements established in point 2.2.3.3. of the 1994,
the 1997 as well as the 2001 Guidelines.

that

(21) In addition, according to the information provided, under
the scheme the aid may not exceed 25 % of the value of
the vessel. Under to the 1994 and 1997 Guidelines,
applicable until 1 July 2001, it is allowed to grant aid
with a maximum of 30 % of the actual costs of the acqui-
sition of the vessel and thus the aid rate of the scheme of
25 % is compatible with that condition.

(22) However the 2001 Guidelines, which Member States were
to apply as from 1 July 2001, require that the aid shall
not exceed 20 % of the actual costs of the acquisition of
the vessel. The aid rate of the scheme of 25 % therefore
no longer complies with the conditions established under
the Guidelines. Therefore, from 1 July 2001, the aid rate
of the scheme of 25 % exceeds seems no longer compa-
tible.

(26) With regard to aid for the acquisition of a share in new
vessels, point 2.2.3.1 of
the 2001 Guidelines applies.
According to those guidelines, aid for the construction of
new fishing vessels may be deemed compatible with the
common market provided that it complies with the rele-
vant conditions of Regulation (EC) No 2792/1999 (7).

Regulation (EC) No 2792/1999

(27) Articles 6, 7, 9 and 10 and Annex III (point 1.3) of Regu-
lation (EC) No 2792/1999 (8), as applicable until 1
January 2003, require that the entry of new capacity is
compensated by the withdrawal of a capacity without
public aid which is at least equal to the new capacity
introduced in the segments concerned. Until 31 December
2001, where the objectives were not yet respected, the
withdrawal of capacity should at least be 30 % more than
the new capacity introduced.

(6) Council Regulation (EC) 3699/93 of 21 December 1993 laying
down the criteria and arrangements regarding Community structural
assistance in the fisheries and aquaculture sector and the processing
and the marketing of its products, OJ L 346, 31.12.1993, p. 1.
(7) Council Regulation (EC) No 2792/1999 of 17 December 1999
laying down the detailed rules and arrangements regarding Com-
munity structural assistance in the fisheries sector OJ L 337,
30.12.1999, p.10, as
last amended by Regulation (EC) No
485/2005, OJ L 81, 30.3.2005, p. 1.

(8) Council Regulation (EC) No 2792/1999 of 17 December 1999
laying down the detailed rules and arrangements regarding Com-
munity structural assistance in the fisheries sector OJ L 337,
30.12.1999, p.10, as
last amended by Regulation (EC) No
485/2005, OJ L 81, 30.3.2005, p. 1.

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(28) The aid may only be granted where the Member State has
submitted the information concerning the application of
the Multi-annual Guidance
as
required under Article 5 of that Regulation and further-
more, has complied with its obligations under Regulation
(EEC) No 2930/86 concerning the characteristics of
fishing vessels, has implemented the arrangements under
Article 6 of Regulation (EC) No 2792/1999 and has
complied with the overall MAGP-objectives.

Programme

(MAGP)

(29) When the vessel is deleted from the fishing vessel register
of the Community, within 10 years from construction,
the aid should be recovered pro rata temporis.

(30) Finally, the vessels must be built to comply with the regu-
lations and directives governing hygiene and safety and
Community provisions concerning the dimension of
vessels. The vessels have to be registered in the fleet
register and must be entered in the Community fishing
fleet register.

(31) With regard to the compatibility of aid for the construc-
tion of new fishing vessels with the common market, the
2001 Guidelines aid also make reference to the provisions
of Regulation (EC) No 2792/1999 as mentioned above.

Regulation (EC) No 2369/2002

(32) However, on 1 January 2003 the relevant Articles and
Annex of Regulation (EC) No. 2792/1999 were amended
by Regulation (EC) No 2369/2002 (9). This amendment
introduced the phasing out of aid for construction of new
fishing vessels. According to the amended provisions, the
conditions have been broadened in the sense that aid for
the renewal of fishing vessels may only be granted until
31 December 2004 and for vessels of less than 400 GT.

4.4.3. Compatibility

(33) Under the scheme grants can be given for the purchase of
a share in a new fishing vessel. Aid can only be granted to
persons over 18 years old that do not yet own a share in
a fishing vessel. The beneficiary is obliged to use the
vessel
for fishing for the following 5 years and must
retain their share in the vessel for at least the same period.
In case of breach of the conditions under the scheme the
authorities can require pro rata temporis repayment of
the aid.

(34) As the scheme seems to make no reference to the refer-
ence level for the size of the fishing fleet nor to the
hygiene and safety requirement and there is obligation for
the
the registration of the vessel
Commission at
the
conditions for the acquisition of a share in a new vessel
during the period starting from 1 July 2001 can be
considered compatible with the Guidelines for the exami-
nation of State aid to fisheries and aquaculture.

in the fleet register,
this stage has serious doubts that

(35) Furthermore the scheme does not seem to contain any
provisions with regard to the additional requirements
introduced by Regulation (EC) No 2369/2002 (point 32),
applicable as from 1 January 2003. Although the United
Kingdom has stated that no aid has been granted under
the scheme during the financial years 2003/2004 and

(9) OJ L 358, 31.12.2002, p. 49.

2004/2005, aid has been granted during the financial year
2002/2003 which could include aid granted after 1
January 2003. Therefore at this stage the Commission
also has doubts whether the additional conditions estab-
lished by Regulation (EC) No. 2369/2002 have been
complied with.

(36) With regard to the above, the Commission at this stage
has serious doubts on the compatibility with the common
market of the aid granted for the acquisition of a share in
new vessels after 1 July 2001. Aid granted before that
date however is deemed to be compatible with the guide-
lines in force at the time the aid was granted and thus
compatible with the common market.

5. DECISION

(37) In view of the foregoing analysis the Commission has
decided not to raise any objections to this aid scheme as
far as it concerns the aid granted for the acquisition of a
share in a new vessel granted before 1 July 2001.

(38) With regard to the aid granted under the scheme for the
acquisition of a share in a new vessel after 1 July 2001
and all aid granted for the acquisition of a share in second
hand vessels, the Commission observes that there exist, at
this stage of the preliminary examination, as provided for
by Article 6 of Council Regulation (EC) No 659/1999 of
22 March 1999 laying down detailed rules for the applica-
tion of Article 88 of the EC Treaty, serious doubts on the
compatibility of these aids with the Guidelines for the
examination of State aid to Fisheries and aquaculture and,
therefore, with the EC Treaty.

(39) In the light of the foregoing conditions, the Commission,
acting under the procedure laid down in Article 88 (2) of
the EC Treaty and Article 6 of Regulation (EC) No
659/1999, requests the United Kingdom of Great Britain
and Northern Ireland to submit its comments and to
provide all such information as may help to further assess
the aid, within one month of the date of receipt of this
letter. It requests your authorities to forward a copy of
this letter to the recipients of the aid immediately.

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

(41) The Commission warns the United Kingdom of Great
Britain and Northern Ireland that it will inform interested
parties by publishing this
letter and a meaningful
summary of it in the Official Journal of the European Union.
It will also inform interested parties in the EFTA countries
which
EEA Agreement,
to
by publication of a notice in the EEA Supplement to the
Official Journal of the European Union and will inform the
EFTA Surveillance Authority by sending a copy of this
letter. All such interested parties will be invited to submit
their comments within one month of the date of such
publication.’

signatories

the

are