Commission Regulation (EC) No 875/2007 of 24 July 2007 on the application of Articles 87 and 88 of the EC Treaty to de minimis aid in the fisheries sector and amending Regulation (EC) No 1860/2004
Date: 2007-07-24
Institutions: European Commission
Subjects: State aid, aid system, aid to undertakings, control of State aid, fishing industry

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COMMISSION REGULATION (EC) No 875/2007

of 24 July 2007
on the application of Articles 87 and 88 of the EC Treaty to de minimis aid in the fisheries sector
and amending Regulation (EC) No 1860/2004

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

(4)

Having regard to the Treaty
Community,

establishing the European

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),

After consulting the Advisory Committee on State aid,

Whereas:

(1)

(2)

(3)

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

On the basis of that Regulation, the Commission adopted
Regulation (EC) No 69/2001 of 12 January 2001 on the
application of Articles 87 and 88 of the EC Treaty to de
minimis aid (3), which sets a ceiling of EUR 100 000 per
beneficiary over a period of three years. Originally that
Regulation did not apply to the agriculture, fisheries and
aquaculture and transport sectors, in view of the special
rules which apply in those sectors.

the

and

regards

fisheries

agriculture

sector,
As
Commission Regulation (EC) No 1860/2004 of 6
October 2004 on the application of Articles 87 and
88 of the EC Treaty to de minimis aid in the agriculture
and fisheries sector (4) established a specific ceiling of
three-year period to
EUR 3 000 per beneficiary per
apply to those sectors, as in the light of the experiences
acquired by the Commission,
it could be affirmed that
very low levels of aid granted in those sectors do not
fulfil the criteria of Article 87(1) of the Treaty, provided
that 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
these sectors does not go above a small percentage of
the value of production.

(1) OJ L 142, 14.5.1998, p. 1.
(2) OJ C 276, 14.11.2006, p. 7.
(3) OJ L 10, 13.1.2001, p. 30.
(4) OJ L 325, 28.10.2004, p. 4.

Owing to changed economic circumstances and in the
light of the experiences gained in applying the existing
general de minimis rules, changes to those rules have been
deemed necessary. For
reason the Commission
that
adopted Regulation
(EC) No 1998/2006 of 15
December 2006 on the application of Articles 87 and
88 of the Treaty to de minimis aid (5). That regulation
increased the
replaced Regulation (EC) No 69/2001,
general de minimis
ceiling from EUR 100 000 to
EUR 200 000, extended its application to the sector
concerning the processing and marketing of agricultural
products and introduced a new de minimis threshold of
EUR 100 000 for State aid to the road transport sector.

Recent experience in applying the rules on State aid to
the fisheries sector, and in particular the de minimis
ceiling set in Regulation (EC) No 1860/2004 and the
Guidelines for the examination of State aid to fisheries
and aquaculture (6) has shown that the risk of distortion
of competition by de minimis aid is lower than was
projected in 2004.

In the light of the experience gained by the Commission,
aid to undertakings in the fisheries sector not exceeding
EUR 30 000 per beneficiary over any three-year period
may be deemed not to affect trade between Member
States and/or not to distort or threaten to distort compe-
tition where the total amount of such aid granted to all
undertakings in the fisheries sector over three years is
below a ceiling of around 2,5 % of the annual fisheries
output. It is therefore appropriate to state that such aid
does not fall under Article 87(1) of the Treaty. The years
to take into account for this purpose are the fiscal years
as used for
in the Member State
concerned. The relevant period of three years should be
assessed on a rolling basis, so that for each new grant of
de minimis aid, the total amount of such aid granted in
the fiscal year concerned, as well as during the previous
two fiscal years needs to be determined.

fiscal purposes

Other State aid granted by a Member State should also
be taken into account when granting a de minimis aid.

It
should not be possible for State aid measures
exceeding the de minimis ceiling to be broken down
into a number of smaller parts in order to bring such
parts within the scope of this Regulation.

(5)

(6)

(7)

(8)

(5) OJ L 379, 28.12.2006, p. 5
(6) OJ C 229, 14.9.2004, p. 5.

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(9)

Consistent with the principles governing aid falling
the Treaty, de minimis aid
within Article 87(1) of
should be considered to be granted at
the moment
when the legal right to receive the aid is conferred on
the beneficiary under the applicable national regime.

conservation and sustainable exploitation of
resources under the Common Fisheries Policy (3).

fisheries

(10)

(11)

The Court of Justice of the European Communities has
established that, once the Community had legislated for
the
the establishment of a common organisation of
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 (1). This principle also applies
in the fisheries
this Regulation should not
sector. For
apply to aid the amount of which is fixed on the basis
of price or quantity of products put on the market.

reason,

this

This Regulation should not apply to export aid or de
minimis aid favouring domestic over imported products.
Moreover
this Regulation should not apply to aid
financing the establishment and operation of a distri-
bution network in other countries. Aid towards the
costs 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 normally not
constitute export aid.

(12)

This Regulation should not apply to undertakings in
difficulty within the meaning of
the Community
guidelines on State aid for rescuing and restructuring
firms in difficulty (2) in view of the difficulties linked to
determining the gross grant equivalent of aid granted to
this type of undertakings.

(14)

(15)

For the purpose of transparency, equal treatment and the
correct application of the de minimis ceiling, it is appro-
priate that Member States should apply the same method
of calculation. In order to facilitate this calculation and in
accordance with Regulation (EC) No 1998/2006,
it 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 trans-
parent types of aid other than grants payable in several
instalments requires the use of market
interest rates
prevailing at
the time of granting such aid. With a
view to a uniform, transparent and simple application
of the State aid rules, the market rates for the purposes
of this Regulation should be deemed to be the reference
rates periodically fixed by the Commission on the basis
of objective criteria and published in the Official Journal of
the European Union or on the Internet. It may, however,
be necessary to add additional basis points on top of the
floor rate in view of the securities provided or the risk
associated with the beneficiary.

regards grants,

calculation can,
interest

For the purposes of transparency, equal treatment and
effective monitoring, this Regulation should apply only
to de minimis aid which is transparent. Transparent aid is
aid for which it is possible to calculate precisely the gross
grant equivalent ex ante without a need to undertake a
for
risk assessment. Such precise
rate
instance, be realised as
subsidies and capped tax exemptions. Aid comprised in
capital injections should not be considered as transparent
de minimis aid, unless the total amount of the public
than the de minimis ceiling. Aid
injection is
comprised in risk capital measures as referred to in the
Community guidelines on State aid to promote risk
capital
investments in small and medium-sized enter-
prises (4) should not be considered as transparent de
minimis aid, unless the risk capital scheme concerned
provides capital only up to the de minimis ceiling to
each target undertaking. Aid comprised in loans should
be treated as transparent de minimis aid when the gross
grant equivalent has been calculated on the basis of
market interest rates prevailing at the time of grant.

lower

(13) Having regard to the objectives of the common fisheries
policy, aid serving to increase fishing capacity and aid
granted for
fishing
vessels should not fall within the scope of this Regu-
lation, except for aid for modernisation over the main
deck as referred to in Article 11 of Council Regulation
(EC) No 2371/2002 of 20 December 2002 on the

the construction or purchase of

(16)

This Regulation does not exclude the possibility that a
measure, adopted by a Member State, might not be
considered as State aid within the meaning of Article
87(1) of the Treaty on the basis of other grounds than
those set out in this Regulation, for instance, in the case
of capital
injections, because such measure has been
decided in conformity with the market investor principle.

(1) Case C-113/2000 Spain v/Commission, [2002] ECR 2002 I-7601,

point 73.

(2) OJ C 244, 1.10.2004, p. 2.

(3) OJ L 358, 31.12.2002, p. 59.
(4) OJ C 194, 18.8.2006, p. 2.

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(17)

(18)

in difficulty

It is necessary to provide legal certainty for guarantee
schemes which do not have the potential
to affect
trade or distort competitions and in respect of which
sufficient data is available to assess any potential effects
reliably. This Regulation should therefore transpose the
general de minimis ceiling of EUR 30 000 per beneficiary
into a guarantee-specific ceiling based on the guaranteed
amount of the individual loan underlying such guarantee.
It is appropriate to calculate this specific ceiling using a
methodology assessing the State aid amount included in
guarantee schemes covering loans in favour of viable
undertakings. The methodology and the data used to
calculate the guarantee-specific ceiling should exclude
undertakings
to in the
Community guidelines on State aid for rescuing and
restructuring firms
specific ceiling
should therefore not apply to ad hoc individual aid
granted outside of the scope of a guarantee scheme, to
aid granted to undertakings in difficulty, or to guarantees
on underlying transactions not constituting a loan, such
as guarantees on equity transactions. The specific ceiling
should be determined on the basis of the fact that taking
account of a cap rate (net default rate) of 13 %, rep-
resenting a worst case scenario for guarantee schemes
in the Community, a guarantee amounting to EUR
225 000 can be considered as having a gross grant
equivalent identical to the de minimis ceiling established
in this Regulation. Only guarantees covering up to 80 %
of the underlying loan should be covered by this specific
ceiling.

in difficulty. This

referred

as

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
In accordance with Article 10 of the Treaty,
thereof.
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
rules, does not exceed either the ceiling of EUR 30 000
per beneficiary or the overall ceiling established by the
Commission on the basis of the value of the fishery
output per Member State over a period of three fiscal
years. To that end, it is appropriate that Member States,
when granting a de minimis aid, should inform the under-
taking concerned about the amount of the aid and its de
minimis character of the aid, by referring to this Regu-
lation. Moreover, prior to granting such aid the Member
State concerned should obtain from the undertaking a
declaration about other de minimis aid received during
the fiscal year concerned and the two previous fiscal
years, and carefully check that the de minimis ceilings
will not be exceeded by the new de minimis aid. Alter-
natively, compliance with the ceilings may also be
ensured by using a central register.

(19)

For reasons of clarity and as the ceiling for de minimis aid
for the fisheries sector thus differs from the ceiling for de
minimis aid to the agriculture sector, a specific regulation
applicable only to the fisheries sector should be adopted
and Regulation (EC) No 1860/2004 should be amended
accordingly.

the frequency with which it

(20) Having regard to the Commission's experience and in
particular
is generally
necessary to revise State aid policy, and in particular
having regard to the period of application of Regulation
(EC) No 1998/2006 and Regulation (EC) No 1860/2004,
it is appropriate that the period of application of this
Regulation be limited until 31 December 2013. Should
this Regulation expire without being extended, Member
States should have an adjustment period of six months
with regard to de minimis aid covered by it. For the sake
of legal certainty, it is appropriate to clarify the effect of
the Regulation on aid granted before its entry into force,

HAS ADOPTED THIS REGULATION:

Article 1

Scope

This Regulation applies to aid granted to undertakings in the
fisheries sector, 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;

(b) aid to export-related activities, namely aid directly linked to
the quantities exported, aid to the establishment and
operation of a distribution network or to other current
expenditure linked to the export activity;

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

goods;

(d) aid serving to increase fishing capacity, expressed in terms of
tonnage or power, as defined in Article 3(n) of Regulation
(EC) No 2371/2002, unless it concerns aid for modern-
isation over the main deck as referred to in Article 11(5)
of that Regulation;

(e) aid for the purchase or construction of fishing vessels;

(f) aid granted to undertakings in difficulty.

Article 2

Definitions

For the purposes of this Regulation:

(a) ‘undertakings in the fisheries sector’ means undertakings
active in the production, processing and marketing of
fisheries products;

(b) ‘fisheries products’ means the products defined in Article 1

of Council Regulation (EC) No 104/2000 (1);

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

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

(b) aid comprised in capital injections shall not be considered as
transparent de minimis aid, unless the total amount of the
public injection does not exceed the de minimis ceiling;

Article 3

De minimis aid

1.
Aid measures shall be deemed not to meet all the criteria
of Article 87(1) of the Treaty and shall be exempt from the
notification requirement of Article 88(3) of the Treaty, if they
fulfil the conditions laid down in this Article and in Articles 4
and 5 of this Regulation.

The total de minimis aid granted to any one undertaking
2.
shall not exceed EUR 30 000 over any period of three fiscal
years. This ceiling shall apply irrespective of the form of the aid
or the objective pursued. The period shall be determined by
reference to the fiscal years used in the Member State
concerned.

3. When an overall aid mount exceeds this ceiling, that aid
amount cannot benefit from this Regulation, even for a fraction
not exceeding that ceiling. In such a case, the benefit of this
Regulation cannot be claimed for this aid measure either at the
time the aid is granted or at any subsequent time.

4.
The cumulative amount thus granted to various under-
takings in the fisheries sector shall not exceed the value set
out per Member State in the Annex over any period of three
fiscal years.

5.
The ceilings in paragraphs 2 and 4 shall be expressed as a
cash grant. All figures used shall be gross, that is, before any
deduction of tax or other charge. Where aid is awarded in a
form other than a grant, the aid amount shall be the gross grant
equivalent of the aid.

6.
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 gross
equivalent shall be the reference rate applicable at the time of
the grant.

This Regulation shall apply only to aid in respect of which
7.
it is possible to calculate precisely the gross grant equivalent of
the aid ex ante without the need to undertake a risk assessment
(transparent aid). In particular:

(a) aid comprised in loans shall be treated as transparent de
minimis aid when the gross grant equivalent has been
calculated on the basis of market interest rates prevailing
at the time of the grant;

(c) aid comprised in risk capital measures

shall not be
considered as transparent de minimis aid, unless the risk
capital scheme concerned provides capital only up to the
de minimis ceiling to each target undertaking;

(d) aid in the form of

repayable advances

shall not be
considered as transparent aid as far as the total amount of
the repayable advances exceeds the applicable threshold
under this Regulation;

(e) individual aid provided under a guarantee scheme to under-
takings which are not undertakings in difficulty shall be
treated as de minimis aid when the guaranteed part of the
underlying loan provided under such scheme does not
exceed EUR 225 000 per undertaking.
the guaranteed
part of
the underlying loan only accounts for a given
the gross grant equivalent of
proportion of
that guarantee shall be deemed to correspond to the same
proportion of the applicable ceiling laid down in paragraph
2. The guarantee shall not exceed 80 % of the underlying
loan.

this ceiling,

If

De minimis aid shall not be cumulated with State aid in
8.
respect of the same eligible costs if such cumulation would
result in an aid intensity exceeding that fixed in the specific
circumstances of each case by a block exemption regulation
or decision adopted by the Commission.

Article 4

it shall

Monitoring
1. Where a Member State grants de minimis aid to an under-
taking,
inform the undertaking in writing about the
amount of the aid expressed in gross equivalent and about
the de minimis character, making express reference to this Regu-
lation and citing its title and publication reference in the Official
Journal of
the European Union. Where the de minimis aid is
granted to different undertakings on the basis of a scheme
and different amounts of individual aid are granted to those
undertakings under that scheme, the Member State concerned
may choose to fulfil that obligation by informing the under-
takings of a fixed sum corresponding to the maximum aid
amount to be granted under the scheme.
In such case, the
fixed sum shall be used for determining whether either of the
ceilings laid down in paragraphs 2 and 4 of Article 3 are met.
Prior to granting the aid,
the Member State shall obtain a
declaration from the undertaking concerned, in written or elec-
tronic form, about any other de minimis aid received during the
previous two fiscal years and the current fiscal year.

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The Member State shall only grant the new de minimis aid
2.
after having checked that this will not raise the total amount of
de minimis aid received by the undertaking during the period
covering the fiscal year concerned, as well as the previous two
fiscal years in that Member State, to a level above either of the
ceilings set out in paragraphs 2 and 4 of Article 3.

Article 6

Amendment

Regulation (EC) No 1860/2004 shall be amended as follows:

3. Where a Member State has set up a central register of de
minimis aid for fisheries containing complete information on all
de minimis aid granted by any authority within that Member
State, paragraph 1 shall cease to apply to that Member State
from the moment the register covers a period of three fiscal
years.

(a) in the title, the words ‘and fisheries sectors’ are replaced by

‘sector’;

(b) in Article 1, the words ‘the agriculture or fisheries sectors’

are replaced by ‘the agriculture sector’;

4. Member States shall record and compile all the infor-
mation regarding the application of
this Regulation. Such
records shall contain all information necessary to demonstrate
that the conditions of this Regulation have been complied with.
Records regarding an individual de minimis aid shall be main-
tained for 10 fiscal years from the date on which the aid was
granted. Records regarding a de minimis aid scheme shall be
maintained for 10 years from the date on which the last indi-
vidual aid was granted under such scheme. On a written
the
request,
Commission, within a period of 20 working days, or such
longer period as may be fixed in the request, with all
the
information that
the Commission considers necessary for
assessing whether the conditions of this Regulation have been
complied with, and in particular the total amount of de minimis
aid received by any undertaking and by the fisheries sector of
the Member State concerned.

concerned shall provide

the Member State

(c) in Article 2:

(i) in point

(2),

the words ‘except

fisheries products as
defined in point (5)’ are replaced by ‘except fisheries
products as defined in Article 1 of Council Regulation
(EC) No 104/2000’,

(ii) points 4, 5 and 6 are deleted;

(d) in Article 3(2), the third subparagraph is deleted;

Article 5

Transitional provisions

(e) in Article 4(2), the words ‘and fisheries, respectively’ are

deleted;

1.
This Regulation shall apply to aid granted before its entry
into force, if it fulfils all the conditions laid down in Articles 1
to 3 and, if appropriate, in Article 4. Any aid which does not
fulfil those conditions shall be assessed by the Commission in
accordance with the relevant
frameworks, guidelines, com-
munications and notices.

Any de minimis aid granted between 1 January 2005 and
2.
six months after entry into force of this Regulation, which fulfils
the conditions of Regulation (EC) No 1860/2004 as applicable
to the fisheries sector until the date of entry into force of this
Regulation, shall be deemed not to meet all the criteria of
Article 87(1) of
therefore be exempt
from the notification requirement of Article 88(3) of the Treaty.

the Treaty and shall

(f)

in the second subparagraph of Article 4(3), the words ‘or
fisheries’ are deleted;

(g) Annex II is deleted.

Article 7

Entry into force and applicability

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

3.
At the end of the period of validity of this Regulation, any
de minimis aid which fulfils the conditions of this Regulation
may be validly implemented for a period of six months.

It shall expire on 31 December 2013.

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

Done at Brussels, 24 July 2007.

For the Commission

Joe BORG
Member of the Commission

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ANNEX

Cumulative amounts for fisheries per Member State as referred to in Article 3(4)

(EUR)

BE

BG

CZ

DK

DE

EE

IE

EL

ES

FR

IT

CY

LV

LT

LU

HU

MT

NL

AT

PL

PT

RO

SL

SK

FI

SE

UK

11 800 000

433 000

1 008 000

57 650 000

48 950 000

3 718 000

8 508 000

18 015 000

127 880 000

138 550 000

94 325 000

1 562 000

3 923 000

5 233 000

0

740 000

255 000

35 875 000

620 000

21 125 000

15 688 000

524 000

338 000

1 133 000

7 075 000

11 153 000

102 725 000