2008/738/EC: Commission Decision of 4 June 2008 concerning the State aid scheme that France intends to implement in favour of the processing and marketing of fisheries and aquaculture products (Fonds d’Intervention Stratégique des Industries Agro-Alimentaires (agri-food industries strategic intervention fund) ) (notified under document number C(2008) 2257) (Text with EEA relevance)
Date: 2008-05-04
Institutions: European Commission
Subjects: France, State aid, agro-industry, aid system, aquaculture, fishery product, marketing

18.9.2008

EN

Official Journal of the European Union

L 249/15

COMMISSION

COMMISSION DECISION

of 4 June 2008

concerning the State aid scheme that France intends to implement in favour of the processing and
marketing of fisheries and aquaculture products (Fonds d’Intervention Stratégique des Industries
Agro-Alimentaires (agri-food industries strategic intervention fund))

(notified under document number C(2008) 2257)

(Only the French text is authentic)

(Text with EEA relevance)

(2008/738/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

(3)

Having regard to the Treaty
Community,
and in particular
Article 88(2) thereof,

establishing the European
subparagraph of
the

first

Having called on interested parties to submit their comments
pursuant to that Article (1),

Whereas:

(1)

(2)

1. PROCEDURE

In the framework of

On 24 April 2007 France notified the Commission of its
intention to implement an aid scheme to subsidise
undertakings processing and marketing fisheries and
the preli­
aquaculture products.
minary examination provided for
in Article 4 of
Council Regulation (EC) No 659/1999 of 22 March
1999 laying down detailed rules for the application of
Article 93 of the EC Treaty (2), a request for additional
information was sent to France on 7 June 2007, in order
to obtain further information about the beneficiaries of
the aid and the legal basis of the scheme. The French
authorities replied on 11 July 2007. The Commission
information
sent them a further request for additional
on 11 September 2007,
to which France replied on
26 October 2007.

On the basis of the documents in its possession, the
Commission considered that
the aid scheme notified
raised doubts as to its compatibility with the common
market. It informed France, on 16 January 2008, of its
investigation procedure
decision to open the formal
provided for
the Treaty and
Article 6 of Regulation (EC) No 659/1999.

in Article 88(2) of

(4)

(5)

(6)

(7)

The decision of the Commission to open the formal
investigation procedure was published in the Official
the European Union (3). The Commission
Journal
invited interested parties to submit their comments on
the measures in question within a month.

of

France submitted its comments in the form of a note
sent in a letter dated 18 February 2008. The Commission
did not receive any other comments from interested
parties.

2. DESCRIPTION

According to the information contained in the notifi­
cation, the aid scheme in question aims to subsidise,
through the use of purely public funds, undertakings
which process and market
fisheries and aquaculture
products.

The purpose of this scheme is to grant aid to under­
takings other than small and medium-sized undertakings,
so that they can enjoy the same support as that available
to the SMEs under Council Regulation (EC) No
1198/2006 of 27 July 2006 on the European Fisheries
Fund (4).

The aid would come from the Fonds d’Intervention Stra­
tégique des Industries Agro-Alimentaires (FISIAA) (agri-
food industries strategic intervention fund). This fund set up
by the French authorities consists of a budget entry in
the State budget which is managed by the Ministry of
Agriculture and Fisheries. All undertakings which process
and market products included in Annex I to the Treaty
may benefit from the subsidies granted from the FISIAA.
Consequently, both undertakings in the agriculture sector
and those in the fisheries and aquaculture sector could

(1) OJ C 61, 6.3.2008, p. 8.
(2) OJ L 83, 27.3.1999, p. 1.

(3) See footnote 1.
(4) OJ L 223, 15.8.2006, p. 1.

L 249/16

EN

Official Journal of the European Union

18.9.2008

It

is foreseen that

in 2007 aid will be
be involved.
reserved solely for undertakings with more than 750
employees or with a turnover of more than 200
million euro. According to the explanations submitted
by France, it seems likely that this priority will be main­
tained in respect of aid granted after 2007. This
hypothesis is supported by the text of a new call for
projects launched in December 2007 (see recital 9).

The notification is accompanied by a call for projects
which was launched on 2 March 2007 with a view to
the
selecting the projects meeting the objectives of
this call
FISIAA. According to the French authorities,
for projects only involves undertakings in the agricultural
sector and the specifications are only given ‘as an
example’ of
the conditions on which aid would be
granted to undertakings in the fisheries and aquaculture
sector.

A new call for projects was launched on 17 December
2007 for tenders which are eligible for selection for
2008. This call for projects does not explicitly mention
undertakings processing and marketing fisheries and
aquaculture products,
to all products
included in Annex I to the Treaty (including fisheries
and aquaculture products). It also mentions the new eli-
gibility rules with a view to receiving support from the
European Fisheries Fund (EFF).

refers

but

The Commission only became aware of this new call for
projects, which was announced on the Internet site of the
French Ministry of Agriculture and Fisheries (5), after it
had decided to open the formal investigation procedure.
This new call for projects is not mentioned in the reply
from the French authorities dated 18 February 2008. The
latter merely observe that ‘the delay in receiving approval
has already prevented packaging undertakings from parti­
cipating in the FISIAA 2007 call for projects [launched
on 2 March 2007 but notified on 24 April 2007].’

(8)

(9)

(10)

(11) According to the French authorities,

the FISIAA is
currently defined by its intervention framework, that is
the aid scheme applicable to undertakings in the agri­
cultural sector, registered under number N 553/2003
and approved by a Commission Decision of 28 July
2004 (6). The purpose of notifying the aid scheme
which is the subject of
this Decision is therefore to
extend this framework of intervention to include under­
takings in the fisheries and aquaculture sector.

it

is not possible at

stage,
these two sectors,
according to the French authorities, to predict the share
of the sum which would actually be given to under­
takings in the fisheries and aquaculture sector.

this

(13) As for the spending which may be covered by the
subsidy, the call for projects specifies that the aim of
the FISIAA is to support projects from undertakings
which can combine tangible and intangible investments
and which have a ‘highly structure-creating character’
and/or a ‘strong commercial positioning’ and/or are
‘innovative in nature’. All
investments for the purpose
of implementing storage, packaging, processing and/or
marketing processes are potentially eligible. In particular,
these investments may consist of spending on acquiring
new equipment,
the acquisition and fitting out of
immovable property linked to the project, and on staff
dedicated to the project or intangible services such as
patents, studies and consulting. The intensity of
the
FISIAA aid is not to exceed 15 % of eligible spending
on tangible investments and EUR 100 000 on intangible
investments.

(14)

(15)

3. REASONS FOR OPENING THE PROCEDURE

The aim of this aid scheme is to grant aid to companies
other than small and medium-sized undertakings, so that
they can enjoy — from purely national funds — the
same support as that available to SMEs under Regulation
(EC) No 1198/2006. The aid would be financed by the
FISIAA.

The examination of this aid scheme in the light of the
guidelines for the examination of State aid to fisheries
and aquaculture (7)
the
(hereinafter
guidelines) was undertaken with reference to the criteria
laid down in Regulation (EC) No 1198/2006. However,
the measures eligible for support from the EFF as regards
the processing and marketing of fisheries and aquaculture
products only cover SMEs, while this aid scheme is
geared specifically to undertakings other than SMEs.

referred to as

(16)

Consequently, the Commission considered that there was
some doubt as to the compatibility of the aid with the
common market.

(12)

The budget indicated for the FISIAA is 13 million euro
for 2007 for all of the beneficiary sectors (both agri­
culture and fisheries and aquaculture). To the extent to
which it is open to all of the undertakings engaged in

(5) http://agriculture.gouv.fr/sections/presse/communiques/

2eme-appel-projets-pour
(6) OJ C 214, 1.9.2005, p. 4.

4. COMMENTS FROM FRANCE AND INTERESTED
PARTIES

(17)

France puts forward two arguments in support of the
compatibility with the common market of granting aid
under
FISIAA to undertakings processing and
marketing fisheries and aquaculture products.

the

(7) OJ C 84, 3.4.2008, p. 10.

18.9.2008

EN

Official Journal of the European Union

L 249/17

(18)

Firstly, France reiterates the observation it made in its
reply of 26 October 2007, which is that, although
processing undertakings in the fisheries or agricultural
sector often carry out the same types of activities, the
Commission did not conclude that granting aid to large
undertakings in the agri-foods sector carried the risk of
distorting competition and opened up the possibility for
Member States to grant them State aid.

(22)

The Commission stresses that the approval of a State aid
scheme is not automatic and that a Member State cannot
pre-empt the Commission’s decision before the examina­
tion of the aid scheme has been completed. For these
reasons the Commission cannot accept the claim that
‘the delay in approval [of the aid scheme in question]
has already prevented undertakings in the processing
sector of the fisheries sector from participating in the
call for projects for the FISIAA in 2007’. Neither can it
for projects was launched
accept
without explicitly excluding the possibility for under­
takings in the fisheries sector to benefit from FISIAA
subsidies in 2008, or at least without stating that this
possibility was
the
Commission.

that a second call

approval by

to prior

subject

(23) Under Article 87(1) of the Treaty, ‘any aid granted by a
Member State or through State resources in any form
whatsoever which distorts or threatens to distort compe­
tition
the
certain
favouring
production of certain goods shall,
insofar as it affects
trade between Member States, be incompatible with the
common market’.

undertakings

by

or

(24)

The aid in question, which consists of subsidies financed
from the national budget
(see recital 7), does indeed
constitute aid granted by the State.

(25) As the decision to grant these subsidies is taken at a
national
level after selection by the Ministry of Agri­
culture and Fisheries of the projects submitted as part
of a call for projects, the aid is attributable to the State.

(26)

The measures notified are likely to affect the exchanges
between Member States and risk distorting competition
to the extent that they favour national production of
processed fisheries products to the detriment of
the
production of other Member States.

(27)

Consequently, aid which is the subject of this Decision
constitutes State aid in the terms of Article 87(1) of the
Treaty.

(28) Given that the aid is intended for the fisheries and aqua­
culture sector,
it must be analysed in the light of the
guidelines. Point 5.3 of the guidelines determines that
they shall apply from 1 April 2008 ‘to any State aid
notified or intended to be applied on or after that
date’. As the French authorities stated that they were
from the Commission
waiting to receive approval
before allowing undertakings in the fisheries and aqua­
culture sector
the
Commission considers that it has not been applied and
that, consequently, it should be analysed in the light of
the guidelines.

from this aid scheme,

to benefit

(19) Moreover, France is asking the Commission to specify
why it considers that aid can be granted to large-scale
undertakings in 2007 and 2008 under the Financial
Instrument for Fisheries Guidance (FIFG), whilst similar
aid from purely national funds may not be granted.

5. ASSESSMENT

(20)

the

only

French

notified

their intention to open this call

Firstly, the Commission notes that the call for projects
under the FISIAA for 2007 was launched on 2 March
2007 with a deadline for responding of 2 May 2007,
the
authorities
while
Commission of
for
projects to undertakings in the fisheries and aquaculture
sector on 24 April 2007. In other words, the call for
projects was launched before the Commission was aware
the benefit of undertakings
of an aid scheme for
processing and marketing fisheries
and aquaculture
products, and certainly before it was able to provide its
opinion on the compatibility of such a scheme with the
common market. This is why the Commission initially
asked France whether the document attached to its noti­
fication (that is the text for the call for projects dated
2 March 2007) was addressed solely to undertakings in
the agricultural sector, which France confirmed in its
letter dated 11 July 2007 (‘The first call
for projects
was limited to undertakings in the agricultural sector
(…). Therefore the call for projects for the FISIAA will
only mention processing and marketing undertakings in
the fisheries and aquaculture sector once this aid scheme
has been approved’). If this had not been the case, the aid
scheme would have been reclassified as unlawful aid
(unmodified) in the terms of Article 1(f) of Regulation
(EC) No 659/1999.

(21) A similar question is raised by the new call for projects
launched on 17 December 2007, of which the
Commission only became aware after the formal investi­
gation procedure had been opened (see recital 9). This
new call for projects includes exactly the same terms as
the call for projects of 2007, and therefore does not
explicitly mention processing and marketing under­
takings in the fisheries and aquaculture sector, but, as
for
refers to both
Annex I to the Treaty (which covers fisheries and aqua­
culture products) and Regulation (EC) No 1198/2006.

the previous call

for projects,

it

L 249/18

EN

Official Journal of the European Union

18.9.2008

in point 3.2, to the criteria laid
The guidelines refer,
down by Regulation (EC) No 1198/2006. Consequently,
it is in the light of this Regulation that compatibility of
the aid scheme in question must be examined.

(33)

(29)

(30)

(31)

(32)

The Commission notes that the measures eligible for aid
from the EFF for processing and marketing on the basis
of Regulation (EC) No 1198/2006 only apply to SMEs.
Therefore, the Commission considers that the aid scheme
this Decision, which is only
which is the subject of
addressed to undertakings other than SMEs, does not
meet the intervention criteria for the EFF.

‘the call

The French authorities do not contest this analysis as
they state that
for projects No 2 would be
addressed to large undertakings in the marine products
processing and marketing sector, that is to undertakings
with more than 750 employees and a turnover of more
than 200 million euro, as such undertakings are excluded
from the EFF, as is the case for undertakings processing
(…) The French authorities are
agricultural products.
aware that reading the 2004 fisheries and aquaculture
guidelines in conjunction with Article 104 of Regulation
(EC) No 1198/2006 relating to the European Fisheries
Fund leads the Commission to state that large under­
takings may not benefit from public aid.’

This being the case, France justifies the aid scheme in
question by saying it wishes to harmonise the situation
of undertakings in the fisheries and aquaculture sector
with regard to the granting of public aid with that of
undertakings
for which a
in the agricultural sector,
similar aid scheme was approved in 2004. However,
given that the aid scheme is intended for the fisheries
and aquaculture sector for which specific guidelines have
been adopted, the Commission cannot accept the fact
that an aid scheme of the same kind exists which has
been approved for another sector of activity. Moreover,
the Commission recalls that the scheme applicable to
undertakings in the agricultural sector has been main­
tained until 31 December 2008 by way of derogation
the Community
in accordance with point 196 of
guidelines for State aid in the agriculture and forestry
sector 2007-2013 (8). However,
this case involves a
new aid scheme which applies to undertakings in the
fisheries and aquaculture sector.
therefore be
examined with regard to the rules applicable to the
sector, and not by analogy with an existing scheme in
another sector of activity which has been approved on
the basis of rules which differ from those applicable to

It must

aid in the

State
Therefore, this argument is not acceptable.

fisheries

and aquaculture

sector.

Similarly,
the analogy with aid to large undertakings
which may be granted in 2007 and 2008 within the
framework of the FIFG cannot be accepted in order to
justify implementing a new aid scheme, which is strictly
national, for the benefit of these undertakings (see recital
19).
Indeed the rules governing the administration of
intervention programmes and aid granted
structural
within this framework and the rules governing State
aid are independent of each other, unless explicit
reference is made thereto (as is the case in the guidelines,
which refer to criteria laid down in Regulation (EC) No
for reasons
1198/2006). Consequently,
exclusively linked to budgetary constraints, aid may still
be granted under the 1999-2006 EFF programming, has
no effect on the rules which apply to this aid scheme.

the fact

that,

6. CONCLUSION

(34) On the basis of the analysis in part 5 above, it must be
concluded that the scheme for aid allocated from the
FISIAA to undertakings in the fisheries and aquaculture
sector, as notified by France on 24 April 2007, is incom­
patible with the common market,

HAS ADOPTED THIS DECISION:

Article 1

The aid scheme planned by France for subsidizing undertakings
processing and marketing fisheries and aquaculture products
from the Fonds d’Intervention Stratégique des Industries Agro-
Alimentaires
fund)
(FISIAA)
is hereby judged incompatible with the common
market.

intervention

(agri-food

industries

strategic

Article 2

This Decision is addressed to the French Republic.

Done at Brussels, 4 June 2008.

For the Commission

Joe BORG
Member of the Commission

(8) OJ C 319, 27.12.2006, p. 1.