Commission Regulation (EC) No 271/2008 of 30 January 2008 amending Regulation (EC) No 794/2004 implementing Council Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty
Date: 2008-01-30
Institutions: European Commission
Subjects: State aid, aid system, control of State aid, exchange of information, form, interest

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I

(Acts adopted under the EC Treaty/Euratom Treaty whose publication is obligatory)

REGULATIONS

COMMISSION REGULATION (EC) No 271/2008

of 30 January 2008

amending Regulation (EC) No 794/2004 implementing Council Regulation (EC) No 659/1999 laying
down detailed rules for the application of Article 93 of the EC Treaty

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

(3)

Having regard to the Treaty establishing the European
Community,

Having regard to Council Regulation (EC) No 659/1999 of
22 March 1999 laying down detailed rules for the application of
Article 93 of the EC Treaty (1), and in particular Article 27 thereof,

After consulting the Advisory Committee on State Aid,

(4)

Whereas:

(1)

(2)

In order to facilitate and accelerate the submission of State
aid notifications by Member States, and their assessment
by the Commission, it is desirable to generalise the use of
the already established electronic systems.

(5)

Since 1 January 2006 Member States have been required to
transmit State aid notifications electronically. The web
application State Aid Notification Interactive (SANI) (2) has
become fully functional and has increased the efficiency of
procedures. For these reasons, from 1 July 2008, its use
should be rendered obligatory for Member States for the
submission of State aid notifications to the Commission.

Since 1 January 2006, Member States have also been
required to transmit all correspondence in connection with
notifications electronically. The secured e-mail system Pub-
lic Key Infrastructure (PKI) (3) tested by the Commission
has become fully functional. Its use should therefore be
rendered obligatory, from 1 July 2008, for all correspon-
dence from Member States to the Commission in connec-
tion with a notification.

In exceptional cases, upon the agreement of the Commis-
sion and the Member State concerned, it should be possible
to use a communication channel other than the established
web application or secured e-mail system.

Member States should be invited to submit a separate non-
confidential version of the notification, on a voluntary
basis, or any correspondence in connection with a notifi-
cation where these documents contain confidential infor-
mation. This should lead to shortening of procedures and
should enable the Commission to decide more easily on
requests for access to documents. The classification of the
information as confidential should be justified by the
Member State concerned. The submission of a separate
non-confidential copy of the notification or any corre-
spondence in connection with a notification is without
prejudice to the assessment by the Commission of the con-
fidential character of the information submitted.

(1) OJ L 83, 27.3.1999, p. 1. Regulation as last amended by Council Regu-

lation (EC) No 1791/2006 (OJ L 363, 20.12.2006, p. 1).

(2) Details on the established web application are published in Commis-
sion notice ‘D including addresses together with the arrangements for
the protection of confidential information’ (OJ C 237, 27.9.2005,
p. 3).

(3) Details are published in Commission notice ‘D including addresses
together with the arrangements for the protection of confidential
information’.

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(6)

(7)

(8)

(9)

In order to improve transparency of State aid in the Com-
munity, Member States should be required to refer to the
State aid identification number allocated to the aid scheme
concerned by the Commission in each grant of aid to a
final beneficiary, save for aid granted through fiscal mea-
sures. For the same reason, the notification form should be
modified to include an undertaking to publish on the Inter-
net the full text of final aid schemes as approved by the
Commission.

In the light of changes in transmission of notifications, the
provisions concerning the calculation of time limits should
be also updated.

The methodology for setting the interest rates applicable in
respect of the recovery of unlawful aid follows the meth-
odology for setting the reference and discount rates. The
methodology for setting the reference and discount rates
has been reviewed. The provisions of Commission Regu-
lation (EC) No 794/2004 (1) concerning the interest rate
applicable in respect of the recovery of unlawful aid should
therefore be amended in order to reflect these changes.

In order to enable the Commission to better assess the
effects of the notified aid measures on competition in the
internal market, questions concerning the potential of such
intra-
measures to distort competition and to affect
Community trade should be included in the notification
form.

(10) According to the case law of the Court of First Instance of
the European Communities (2), when assessing the com-
patibility of aid with the common market, the Commission
must take all the relevant factors into account, including,
where relevant, the circumstances already considered in a
prior decision and the obligations which that previous
decision may have imposed on a Member State. The Com-
mission therefore has power to take into consideration the
cumulative effect of any old aid and the new aid, and the
fact that the old aid declared unlawful has not been repaid.
In order to enable the Commission to apply systematically
this case law to individual aid measures as well as to aid
schemes, the notification form should be modified.

(11)

In addition to the changes introduced in Part I of Annex I,
further amendments to the notification forms are neces-
sary, in particular the deletion of Part II of Annex I to
Regulation (EC) No 794/2004, in order to avoid duplica-
tion of the information to be submitted by Member States.

(1) OJ L 140, 30.4.2004, p. 1. Regulation as last amended by Regulation
(EC) No 1935/2006 (OJ L 407, 30.12.2006, p. 1, as corrected by
OJ L 44, 15.2.2007, p. 3.)

(2) Joined cases T-244/93 and T-486/93 TWD Textilwerke Deggendorf
GmbH v Commission of the European Communities, [1995] ECR II-2265.

(12)

(13)

Following the adoption by the Commission of new Com-
munity guidelines on State aid to promote risk capital
investments in small and medium-sized enterprises (3) and
the Community framework for State aid for research and
development and innovation (4), it is necessary to replace
III.11 and
the notification forms contained in Part
Part III.6(a) and (b) of Annex I, with new notification forms
which are in line with the current frameworks. The other
notification forms contained in Part III of Annex I remain
unchanged.

In order to ensure legal certainty and to increase transpar-
ency in granting the aid in the Community, the simplified
notification form provided for in Article 4(2) of Regulation
(EC) No 794/2004 and contained in Annex II should also
be amended.
In particular, Member States should be
required confirm that all commitments given for the pur-
poses of a previously approved scheme will remain valid in
their entirety in respect of a new notified aid measure.

(14)

Regulation (EC) No 794/2004 should therefore be
amended accordingly,

HAS ADOPTED THIS REGULATION:

Article 1

Regulation (EC) No 794/2004 is amended as follows:

1. Article 3 is replaced by the following:

‘Article 3

Transmission of notifications

1.
The notification shall be transmitted to the Commis-
sion by means of the electronic validation carried out by the
person designated by the Member State. Such validated noti-
fication shall be considered as sent by the Permanent
Representative.

2.
The Commission shall address its correspondence to
the Permanent Representative of the Member State con-
cerned, or to any other address designated by that Member
State.

3.
As from 1 July 2008, notifications shall be transmitted
electronically via the web application State Aid Notification
Interactive (SANI).

All correspondence in connection with a notification shall be
transmitted electronically via the secured e-mail system Pub-
lic Key Infrastructure (PKI).

4.
In exceptional circumstances and upon the agreement
of the Commission and the Member State concerned, an
agreed communication channel other than those referred to
in paragraph 3 may be used for submission of a notification
or any correspondence in connection with a notification.

(3) OJ C 194, 18.8.2006, p. 2.
(4) OJ C 323, 30.12.2006, p. 1.

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In the absence of such an agreement, any notification or cor-
respondence in connection with a notification sent to the
Commission by a Member State through a communication
channel other than those referred to in paragraph 3 shall not
be considered as submitted to the Commission.

The interest rate shall be calculated by adding 100 basis
2.
points to the one-year money market rate. Where those rates
are not available, the three-month money market rate will be
used, or in the absence thereof, the yield on State bonds will
be used.

5. Where the notification or correspondence in connec-
tion with a notification contains confidential information,
the Member State concerned shall clearly identify such infor-
mation and give reasons for its classification as confidential.

6.
The Member States shall refer to the State aid identifi-
cation number allocated to an aid scheme by the Commis-
sion in each grant of aid to a final beneficiary.

The first subparagraph shall not apply to aid granted through
fiscal measures.’

2.

In Article 8, paragraphs 3 and 4 are replaced by the following:

‘3. With regard to timelimits for action by the Commis-
sion, the receipt of the notification or subsequent correspon-
dence in accordance with Article 3(1) and Article 3(3) of this
Regulation shall be the relevant event for the purpose of
Article 3(1) of Regulation (EEC, Euratom) No 1182/71.

4. With regard to timelimits for action by Member States,
the receipt of the relevant notification or correspondence
from the Commission in accordance with Article 3(2) of this
Regulation shall be the relevant event for the purposes of
Article 3(1) of Regulation (EEC, Euratom) No 1182/71.’

3. Article 9 is replaced by the following:

‘Article 9

Method for fixing the interest rate

3.
In the absence of reliable money market or yield on
stock bonds or equivalent data or in exceptional circum-
stances the Commission may, in close co-operation with the
Member State(s) concerned, fix a recovery rate on the basis of
a different method and on the basis of the information avail-
able to it.

4.
The recovery rate will be revised once a year. The base
rate will be calculated on the basis of the one-year money
market recorded in September, October and November of
the year in question. The rate thus calculated will apply
throughout the following year.

5.
In addition, to take account of significant and sudden
variations, an update will be made each time the average rate,
calculated over the three previous months, deviates more
than 15 % from the rate in force. This new rate will enter into
force on the first day of the second month following the
months used for the calculation.’

4.

In Article 11, paragraph 3 is replaced by the following:

The interest rate referred to in paragraph 1 shall be
‘3.
applied throughout the whole period until the date of recov-
ery. However, if more than one year has elapsed between the
date on which the unlawful aid was first put at the disposal
of the beneficiary and the date of the recovery of the aid, the
interest rate shall be recalculated at yearly intervals, taking as
a basis the rate in force at the time of recalculation.’

5. The Annexes are amended in accordance with the Annexes

to this Regulation.

1.
Unless otherwise provided for in a specific decision, the
interest rate to be used for recovering State aid granted in
breach of Article 88(3) of the Treaty shall be an annual per-
centage rate which is fixed by the Commission in advance of
each calendar year.

Article 2

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

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

Done at Brussels, 30 January 2008.

For the Commission
Neelie KROES
Member of the Commission

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Annex I to Regulation (EC) No 794/2004 is amended as follows:

(1) Part I. General Information is replaced by the following:

ANNEX I

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(2) Part II is deleted;

(3) Part III is amended as follows:

(a)

Supplementary information sheet 6.a is replaced by the following:

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(b)

Supplementary information sheet 6.b is replaced by the following:

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(c)

Supplementary information sheet 11 is replaced by the following:

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Annex II to Regulation (EC) No 794/2004 is replaced by the following:

ANNEX II