EFTA Surveillance Authority Decision No 154/07/COL of 3 May 2007 amending, for the 63rd time, the procedural and substantive rules in the field of State aid
Date: 2007-05-03
Institutions: EFTA Surveillance Authority
Subjects: EFTA, Iceland, Liechtenstein, Norway, State aid, control of State aid, development aid, investment aid, regional aid

19.3.2009

EN

Official Journal of the European Union

L 73/23

IV

(Other acts)

EUROPEAN ECONOMIC AREA

EFTA SURVEILLANCE AUTHORITY

EFTA SURVEILLANCE AUTHORITY DECISION

No 154/07/COL

of 3 May 2007

amending, for the 63rd time, the procedural and substantive rules in the field of State aid

THE EFTA SURVEILLANCE AUTHORITY (1),

HAVING REGARD to the Agreement on the European Economic
Area (2),
in particular to Articles 61 to 63 and Protocol 26
thereof,

HAVING REGARD to the Agreement between the EFTA States on
the Establishment of a Surveillance Authority and a Court of
Justice (3), in particular to Article 24 and Article 5(2)(b) thereof,

WHEREAS under Article 24 of
the Surveillance and Court
Agreement, the Authority shall give effect to the provisions of
the EEA Agreement concerning State aid,

WHEREAS under Article 5(2)(b) of the Surveillance and Court
issue notices or guidelines on
Agreement the Authority shall
matters dealt with in the EEA Agreement, if that Agreement or
the Surveillance and Court Agreement expressly so provides or
if the Authority considers it necessary,

RECALLING the Procedural and Substantive Rules in the Field of
State Aid adopted on 19 January 1994 by the Authority (4),

(1) Hereinafter referred to as ‘the Authority’.
(2) Hereinafter referred to as ‘the EEA Agreement’.
(3) Hereinafter referred to as ‘the Surveillance and Court Agreement’.
(4) Guidelines on the application and interpretation of Articles 61 and
62 of
the EEA Agreement and Article 1 of Protocol 3 to the
Surveillance and Court Agreement, adopted and issued by the
EFTA Surveillance Authority on 19 January 1994, published in
OJ L 231, 3.9.1994, p. 1, and in EEA Supplements 3.9.1994, No
32. The Guidelines were last amended on 7 February 2007 with
Decision No 14/07/COL, not yet published. Hereinafter referred to
as the State Aid Guidelines. The State Aid Guidelines are available on
the Authority’s website.

WHEREAS, Chapter 9 of the State Aid Guidelines, Publication of
decisions, has become obsolete due to an amendment of
Protocol 3 to the Surveillance and Court Agreement (5),

WHEREAS, due to the adoption of the Authority’s Decision No
195/04/COL (6), the following procedural State Aid Guidelines
have become obsolete for the assessment of existing aid and
plans to grant new aid:

— Chapter 11 of the State Aid Guidelines, Criteria for applying

the accelerated clearance procedure,

— Chapter 13 of the State Aid Guidelines, Rules applicable to

cases of cumulation of aid for different purposes,

— Annex I to the State Aid Guidelines, Checklist for infor­
mation to be supplied in State aid notifications to the
EFTA Surveillance Authority (7),

— Annex II to the State Aid Guidelines, Notification for the use

of the accelerated clearance procedure,

— Annex III to the State Aid Guidelines, Format of detailed

annual report,

(5) Agreement between the EFTA States to amend Protocol 3 signed on
10 December 2001 (date of entry into force: 28 August 2003).
(6) Decision No 195/04/COL of 14 July 2004 on the implementing
provisions referred to under Article 27 in Part II of Protocol 3 to
the Agreement between the EFTA States on the establishment of a
Surveillance Authority and a Court of Justice (OJ L 139, 25.5.2006,
p. 37).

(7) With the exception of Section III, which contains the complaint

form.

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Official Journal of the European Union

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— Annex IV to the State Aid Guidelines, Format of simplified

annual report,

— Annex XIII to the State Aid Guidelines, Standard notification
form pursuant to the multisectoral framework on regional
aid for large investment projects (1),

— Annex XIV to the State Aid Guidelines, Notification form

for individual grants of restructuring aid,

— Annex XV to the State Aid Guidelines, Notification form for

rescue aid,

— Annex XI to the State Aid Guidelines, Aid to offset ad­
ditional
for
in
exemption under Article 61(3)(c) on the basis of the popu­
lation density test,

qualifying

transport

regions

costs

— Annex XII to the State Aid Guidelines, Method of deter­
mining the ceilings on the population covered by the
61(3)(c) derogation,

WHEREAS the following substantive State aid provisions need
revision (3):

— Annex XVI to the State Aid Guidelines, Additional

infor­
mation ordinarily to be supplied when notifying State aid
for environmental purposes under Article 1(3) of Protocol 3
to the Surveillance and Court Agreement,

— Chapter 10A, State aid and risk capital, has been replaced by
Chapter 10B, State aid to promote risk capital investments
in small and medium-sized enterprises,
following the
adoption of the Authority’s Decision No 313/06/COL (4),

WHEREAS following the adoption of new regional aid guidelines
by the Authority’s Decision No 85/06/COL (2) the following
chapters of the State Aid Guidelines have become obsolete for
the assessment of new plans to grant State aid:

— Chapter 24 of the State Aid Guidelines, Aid to non-ECSC
steel industries, became obsolete with the adoption of the
Authority’s Decision No
introducing
Chapter 26A, Multisectoral framework on regional aid for
large investment projects,

263/02/COL (5)

— Chapter 25 of the State Aid Guidelines, National Regional

Aid,

— Chapter 25A of the State Aid Guidelines, Review of the
guidelines on national regional aid for the period after
1 January 2007,

— Chapter 26A of

the State Aid Guidelines, Multisectoral
Framework on regional aid for large investment projects,
now incorporated in the new Regional Aid Guidelines,

— Annex X to the State Aid Guidelines, Net grant equivalent of

investment aid,

(1) New notification forms for regional aid have been adopted by
Authority’s Decision No 387/06/COL of 13 December 2006
amending College Decision No 195/04/COL on the implementing
provisions referred to under Article 27 in Part II of Protocol 3 to the
Agreement between the EFTA States on the Establishment of a
Surveillance Authority and a Court of
the
standard forms for notification of aid, not yet published in the
EEA Section of and in the EEA Supplement to the Official Journal
of the European Union.

Justice as

regards

(2) EFTA Surveillance Authority Decision of 6 April 2006 amending,
for the fifty-sixth time, the procedural and substantive rules in the
field of State aid by introducing a new Chapter 25.B: National
Regional Aid 2007 to 2013, not yet published. Available on the
Authority’s website.

— Chapter 29 of the State Aid Guidelines, General investment
aid schemes (6), was only relevant in the context of the
adoption of the EEA Agreement,

— Annex V to the State Aid Guidelines, Authorizable range of
aid for SMEs, by size of company and location, is outdated
and no longer applicable,

(3) These rules are no longer applicable for the assessment of new plans

to grant State aid.

(4) EFTA Surveillance Authority Decision No 313/06/COL amending,
for the fifty-ninth time, the procedural and substantive rules in the
field of State aid by introducing a new Chapter 10.B: State aid to
promote risk capital investments in small and medium-sized enter­
prises, not yet published. Available on the Authority’s website.
(5) EFTA Surveillance Authority Decision No 263/02/COL
thirty-sixth time

of
18 December 2002 amending for
the
Procedural and Substantive Rules in the Field of State Aid by intro­
ducing a new Chapter 26A: Multisectoral framework on regional aid
for large investment projects (OJ L 139, 25.5.2006, p. 8).

the

(6) Dates from 1994 and states that general investment aid schemes are
incompatible with the functioning of the EEA Agreement. Although
the EFTA States should have brought them into line with the EEA
Agreement under their general obligation to take all appropriate
measures to ensure fulfilment of the obligations arising out of the
EEA Agreement (Article 3), some EFTA State might still apply such
schemes. Thus it sets out the rules which trigger a notification of
individual cases of application of such schemes. It partly refers to a
letter from the Commission to the Member States SG(79) D/10478
of 14 September 1979 which was incorporated as point 32 into
Annex XV to the EEA Agreement.

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WHEREAS it is desirable in this process of revising the State Aid
Guidelines to incorporate the Notice issued by the Commission
of
the
the European Communities on the determination of
applicable rules for the assessment of unlawful State aid (1),
already, on a number of
although the Authority has
occasions, referred to it,

WHEREAS this Notice is also of relevance for the European
Economic Area,

WHEREAS uniform application of the EEA State aid rules is to be
ensured throughout the European Economic Area,

WHEREAS, according to point II under the heading ‘GENERAL’
at the end of Annex XV to the EEA Agreement, the Authority,
after consultation with the Commission, is to adopt acts corre­
sponding to those adopted by the European Commission,

HAVING consulted the European Commission,

RECALLING that the Authority has consulted the EFTA States
Iceland, Liechtenstein and Norway on 29 March 2007 on the
subject,

HAS ADOPTED THIS DECISION:

Article 1

The State Aid Guidelines shall be amended by deleting chapters
9, 10A, 11, 13, 24, 25, 25A, 26A and 29 as well as Annexes I
(with the exception of Section III on complaints) to V and X to
XVI.

Section III of Annex I and Annexes VIII and IX will be incor­
porated at the end of the text of the Chapter on Complaints —
form for
the submission of complaints concerning alleged
unlawful State aid, Chapter on Aid to maritime transport and
Chapter on Short-term export-credit insurance of the State Aid
Guidelines, respectively.

Article 3

The Chapters of the State Aid Guidelines will not be numbered.
The new structure of the Guidelines is shown for information
purposes in Annex III to this Decision.

The text of the State Aid Guidelines will be updated accordingly.
No reference will be made to the number of the chapter but to
the title of the guidelines with regard to cross-references to still
existing chapters. With regard to cross-references to deleted
chapters,
the former chapter will be main­
tained (2).

the number of

Article 4

The EFTA States shall be informed by means of a letter,
including a copy of this Decision and including the Annexes.

Article 5

The European Commission shall be informed,
(d) of Protocol 27 of
with point
means of a copy of this Decision, including the Annexes.

in accordance
the EEA Agreement, by

Article 6

This Decision, including Annexes I to III, shall be published in
the EEA Section of and in the EEA Supplement to the Official
Journal of the European Union.

Only the English text is authentic.

Article 7

Annex I to this Decision lists all deleted chapters and Annexes.

Done at Brussels, 3 May 2007.

Article 2

The State Aid Guidelines shall also be amended by introducing
a new Chapter on the applicable rules for the assessment of
unlawful State aid. The new Chapter is contained in Annex II to
this Decision.

For the EFTA Surveillance Authority

Bjørn T. GRYDELAND
President

Kurt JAEGER
College Member

(1) OJ C 119, 22.5.2002, p. 22.

(2) The consolidated version of the State Aid Guidelines is available on

the Authority’s website: http://www.eftasurv.int/

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Official Journal of the European Union

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ANNEX I

SECTION A — CHAPTERS DELETED FROM THE STATE AID GUIDELINES

Title

Chapter number

Publication of decisions

State aid and risk capital

Criteria for applying the accelerated clearance procedure

Rules applicable to cases of cumulation of aid for different purposes

Aid to non-ECSC steel industries

National regional aid

Review of the guidelines on national regional aid for the period after 1 January 2007

Multisectoral framework on regional aid for large investment projects

General investment aid schemes

9

10A (*)

11

13

24

25 (*)

25A (*)

26A (*)

29

(*) These chapters might still be relevant for the assessment of unlawful aid and are therefore still available on the Authority’s website (list

of deleted chapters).

SECTION B — ANNEXES DELETED FROM THE STATE AID GUIDELINES

Annexes I (with the exception of Section III on complaints) to V and X to XVI have been deleted.

Former Section III of Annex I, Annex VIII and IX have been incorporated at the end of the text of the relevant chapter
(Chapter on Complaints — form for the submission of complaints concerning alleged unlawful State aid, Chapter on Aid
to maritime transport and Chapter on Short-term export-credit insurance of the State Aid Guidelines respectively).

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Official Journal of the European Union

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ANNEX II

NEW CHAPTER OF THE STATE AID GUIDELINES

APPLICABLE RULES FOR THE ASSESSMENT OF UNLAWFUL STATE AID

A number of instruments approved by the EFTA Surveillance Authority (hereinafter ‘The Authority’) over the years
contain a provision to the effect that unlawful State aid,
i.e. aid put into effect in contravention of Article 1(3) in
Part I of Protocol 3 to the Surveillance and Court Agreement (1), shall be assessed in accordance with the texts in force at
the time when the aid was granted. This is, for example, the case for the Chapter of the Authority’s State Aid Guidelines
on State aid for environmental protection.

For the purpose of transparency and legal certainty, the Authority informs the EFTA States and third parties that it has
decided to continue to apply the same rule in respect of all instruments indicating how the Authority will exercise its
discretion in order to assess the compatibility of State aid with the functioning of the EEA Agreement. Therefore, the
Authority shall always assess the compatibility of unlawful State aid with the functioning of the EEA Agreement in
accordance with the substantive criteria set out in any instrument in force at the time when the aid was granted.

This is without prejudice to the more specific rules contained in the Chapter of the Authority’s State Aid Guidelines on
State aid for rescuing and restructuring firms in difficulty.

This is without prejudice to the interpretation of Acts in the field of State aid, incorporated into the EEA Agreement.

(1) Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice, referred to as the

Surveillance and Court Agreement.

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Official Journal of the European Union

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ANNEX III

NEW STRUCTURE OF THE STATE AID GUIDELINES

Title

Former chapter

Amendments

Table of contents

Part I: Preface

Introduction

Legal basis and general provisions

Part II: Procedural rules

Applicable rules for the assessment of unlawful State aid

Co-operation between national courts and the EFTA Surveillance Authority in the
State aid field

Complaints — form for the submission of complaints concerning alleged unlawful State aid

Professional secrecy in State aid decisions

Part III: Horizontal aid rules

Aid to micro, small and medium-sized enterprises (SMEs)

National regional aid 2007-2013

State aid to promote risk capital investments in small and medium-sized enterprises

Aid for research and development and innovation

Aid for environmental protection

Aid for rescuing and restructuring firms in difficulty

Part IV: Sector specific rules

Methodology for analysing State aid linked to stranded costs

Rescue and restructuring aid and closure aid for the steel sector

Aid to maritime transport

State aid to shipbuilding

The application of the State aid rules to public service broadcasting

Aid to the aviation sector

Financing of airports and start up aid to airlines departing from regional airports

Aid to shipbuilding granted as development assistance to a developing country

Part V: Specific aid instruments

State guarantees

Short-term export credit insurance

Application of State aid rules to measures relating to direct business taxation

State aid elements in sales of land and buildings by public authorities

1

2

9A

9B

9C

10

25B

10B

14

15

16

21

22

24A

24B

24C

30

30A

31

17

17A

17B

18B

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Title

Former chapter

Part VI: Rules on State ownership of enterprises, aid to public enterprises and services of

general economic interest

State aid in the form of public service compensation

Public authorities holdings

Application of State aid provisions to public enterprises in the manufacturing sector

Part VII: Others

Conversion between national currencies and the euro

Reference and discount rates and interest rates to be applied for the recovery of
unlawful aid

18C

19

20

33

34