Proposal for a COUNCIL REGULATION amending Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty
Date: 2012-12-05
Institutions: European Commission
Subjects: State aid, access to information, complaint to the Commission, control of State aid, disclosure of information, fine, infringement procedure (EU), judicial cooperation in civil matters in the EU

EUROPEAN 
COMMISSION 

Brussels, 5.12.2012  
COM(2012) 725 final 

2012/0342 (NLE) 

Proposal for a 

COUNCIL REGULATION 

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

(Text with EEA relevance) 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

The European State aid rules were first introduced in the Treaties establishing the European 
Coal and Steel Community in 1952 and the European Economic Community in 1957. They 
are currently enshrined in the Treaty on the Functioning of the European Union (hereinafter: 
"TFEU" or "the Treaty").  

Article 107 TFEU contains the definition of State aid and the grounds on which aid may be 
considered  to  be  compatible  with  the  internal  market,  while  Article  108  TFEU  sets  out  the 
main  procedural  principles  governing  the  Commission's  action  to  ensure  Member  States' 
compliance with the substantive State aid rules. Article 109 TFEU allows the Council, acting 
upon a proposal from the Commission and after consulting the European Parliament, to make 
any appropriate regulations for the application of Articles 107 and 108 TFEU. 

In  1999,  the  Council  adopted  Regulation  (EC)  No  659/19991  (hereinafter,  the  "Procedural 
Regulation"), setting out in more details the rules of procedure governing the enforcement of 
Articles  107  and  108  TFEU,  which  have  been  applied  until  today  without  any  significant 
modifications. 

State  aid  procedures,  as  laid  down  by  Article  108  TFEU  and  further  detailed  by  the 
Procedural Regulation, are built around three main axes: 

– 

– 

– 

Prior notification by Member States of all planned aid measures is compulsory, 
except in cases covered by a block exemption regulation or a decision, and the 
Member  State  concerned  may  not  put  the  measure  into  effect  until  a 
Commission  decision  authorising  that  aid  is  taken;  to  that  end,  following  an 
essentially  bilateral  (Member  State/Commission)  preliminary  investigation 
("first phase"), limited in principle to two months, the Commission may either 
approve  the  aid  or  open  a  formal  investigation  ("second  phase"),  subject  to  a 
best endeavour deadline of 18 months, with a view to thereafter approving (if 
necessary, subject to conditions) or prohibiting the aid; 

The Commission is required to conduct a diligent and impartial examination of 
complaints  submitted  from  interested  parties  and  take  a  decision  thereon 
without undue delay. Where the Commission takes a decision finding that there 
exists no State aid as alleged by a complainant, the Commission must at least 
provide the complainant with an adequate explanation of the reasons for which 
the  facts  and  points  of  law  put  forward  in  the  complaint  have  failed  to 
demonstrate the existence of State aid; 

Finally,  the  Commission  must  keep  under  constant  review  all  existing  aid 
systems in Member States and may propose to them any appropriate measures 
required  by  the  progressive  development  of  the  functioning  of  the  internal 
market. 

1 

Council  Regulation  (EC)  N°  659/1999  of  22  March  1999  laying  down  detailed  rules  for  the  application 
Article 93 of the EC Treaty, OJ L 83, 27.3.1999, p. 1. 

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Those main features of the State aid procedure are a direct consequence of the system of State 
aid control foreseen in the Treaty, which is based on the Commission's exclusive competence 
to assess the compatibility of State aid measures with the internal market.  

More than 13 years after its entry into force, a modernisation of the Procedural Regulation is 
needed to adapt State aid procedure in a European Union of 27 Member States, 500 million 
inhabitants, and 23 official languages. 

The  economic  and  financial  crisis  has  threatened  the  integrity  of  the  internal  market  and 
shown  the  importance  of  streamlined  and  efficient  State  aid  control  and  enforcement.  That 
experience pointed out the need for the Commission to have better tools in order to intervene 
within business-relevant timeframes and promote sound use of public resources for  growth-
oriented policies. 

On  8  May  2012,  the  Commission  therefore  adopted  the  Communication  on  "EU  State  aid 
modernisation (SAM)"2 which launches a comprehensive reform of the State aid framework. 
It will ensure that State aid policy contributes both to the implementation of the Europe 2020 
agenda3  which  is  Europe's  growth  strategy  for  the  current  decade,  and  to  budget 
consolidation.  

The  revision  of  the  Procedural  Regulation  is  one  of  the  elements  that  should  allow  the 
Commission  to  achieve  the  objectives  of  that  initiative.  Reforming  the  State  aid  procedures 
should primarily improve the effectiveness of State aid control4. 

The need to reform State aid procedures has also been emphasised by the Court of Auditors in 
its Special Report n°15/2011 "Do the Commission’s procedures ensure effective management 
of State aid control?"5. With the proposed reform of the State aid procedural framework, the 
Commission will in particular respond to the recommendations of the Court of Auditors to:  

– 

– 

– 

– 

minimise the number of requests for information sent to Member States; 

deal  swiftly  with  unfounded  complaints,  in  order  to  provide  more  legal 
certainty to all stakeholders; 

periodically  inform  the  complainant,  the  Member  State  and  the  beneficiary 
about the progress of each case and about the outcome of the investigation; 

improve the efficiency and reliability of its data-gathering process.  

2 

3 

4 
5 

Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European 
Economic  and  Social  Committee  and  the  Committee  of  the  Regions,  EU  State  Aid  Modernisation 
(SAM), 8.05.2012, COM(2012) 209 final. 
Communication  from  the  Commission,  Europe  2020:  A  strategy  for  smart,  sustainable  and  inclusive 
growth, 3.3.2010, COM(2010) 2020 final. 
Paragraph 23b, Communication "EU State Aid Modernisation (SAM)", cited above in footnote 2. 
European Court of Auditors, "Do the Commission’s procedures ensure effective management of State 
http://eur-
aid 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=SRCA:2011:15:FIN:EN:PDF 

15.12.2011: 

control?", 

Special 

Report 

n°15, 

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Those  recommendations  were  explicitly  endorsed  by  the  Council6  and  the  European 
Parliament7. 

2. 

OVERVIEW OF THE PROPOSED AMENDMENTS 

Against that background, the proposed reform of the Procedural Regulation will focus on two 
areas, as announced in the SAM Communication8: improving the handling of complaints (2.1) 
and ensuring effective and reliable gathering of information from the market (2.2). 

2.1. 

IMPROVING THE HANDLING OF COMPLAINTS 

Complaints  are  in  principle  a  very  useful  source  of  information  to  direct  Commission 
investigations towards those economic sectors where unlawful State aid hampers competition 
at  the  level  of  the  EU.  However,  the  Commission  receives  on  average  more  than  300 
complaints every year, whether lodged by interested parties9 or not, among which many are 
either not motivated by genuine competition concerns or not sufficiently substantiated. Most 
complaints are not treated as a priority and the average duration of those cases therefore tends 
to  increase10.  Therefore,  the  complaints  handling  procedure  is  sometimes  perceived  by 
Member States and complainants as unpredictable and lacking transparency.  

In 2009, the Best Practices Code for the conduct of State aid procedures11 set out a staged and 
transparent  procedure  to  handle  complaints.  Two  years  into  its  application,  however, 
experience  shows  that  the  benefits  it  sought  –  of  shorter  duration,  increased  efficiency  and 
greater predictability – have not fully materialised. Best Practices could not address some of 
the  main  shortcomings  of  the  current  system,  since  they  directly  stem  from  the  Procedural 
Regulation. That is why a reform of the Procedural Regulation itself is proposed to address 
those issues.  

* 

* 

* 

In that respect, the proposed amendments to the Procedural Regulation aim at improving the 
quality  of  the  information  received  by  clarifying  the  requirements  to  lodge  a  complaint  and 
formalising a staged, predictable and transparent procedure.  

Currently, the Commission has to investigate every alleged infringement of the State aid rules 
received from whatever source. Unlike the competition rules laid down in Articles 101 TFEU 
and  102  TFEU,  in  relation  to  which  the  lodging  of  a  complaint  is  regulated  by  Regulations 

6 

7 

8 
9 
10 
11 

Council  of  the  European  Union,  Conclusions  on  Special  report  n°15/2011  by  the  European  Court  of 
Auditors:  "Do  the  Commission’s  procedures  ensure  effective  management  of  State  aid  control?"- 
Adoption, 2.5.2012, 9149/12. 
European  Parliament,  Resolution on  the  Court of Auditors‘  special  reports  in  the  context  of  the 2010 
Commission discharge, 10.5.2012, Paragraphs 116 to 125, 2011/2225(DEC). 
Paragraph 23b, Communication "EU State Aid Modernisation (SAM)", cited above in footnote 2. 
Within the meaning of Article 108(2) TFEU and Article 1(h) of the Procedural Regulation. 
As of 31 March 2012, the average duration of pending complaint cases in DG COMP was 17 months.  
Communication from the Commission, Best Practices Code for the conduct of State aid procedures, OJ 
C 136, 16.06.2009, p. 13. 

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1/200312 and 773/200413, no specific formal requirement is attached to the lodging of a State 
aid complaint. In the absence of any concrete rules in the Procedural Regulation, the General 
Court consequently considered, in the Ryanair judgment of 29 September 201114, that there 
are currently no formal requirements to be met in order to put the Commission in possession 
of a State aid complaint.  

In the interests of transparency and legal certainty, the conditions to lodge a complaint which 
put the Commission in possession of information regarding alleged unlawful aid and thereby 
set  in  motion  the  preliminary  examination  should  therefore  be  clarified  (Amendment  to 
Article 10). Indeed it is appropriate to require that: 

– 

– 

complainants submit a certain amount of compulsory information. To that end, 
it is appropriate to empower the Commission to adopt implementing provisions 
to define the form and the content of a complaint (Amendment to Article 27). 

complainants demonstrate that they are interested parties within the meaning of 
Article 108(2) TFEU15 and Article 1(h) of the Procedural Regulation16 and that 
they  therefore  have  a  legitimate  interest  to  lodge  a  complaint.  To  reach  that 
objective, it is proposed to specify in Article 20(2) on the "rights of interested 
parties" that "any interested party may lodge a complaint".  

In cases where the information received will not be classified as a complaint since it will not 
have passed the admissibility criteria, the Commission will no longer be under an obligation 
to  adopt  formal  decisions.  Those  submissions  will  be  registered  as  market  information  and 
could be used at a later stage to conduct ex officio investigations. 

To  complete  the  staged  procedure  introduced  by  the  Best  Practices  Code17,  the  Procedural 
Regulation  should  formalise  the  possibility  for  the  Commission  to  deem  complaints 
withdrawn if the complainant does not return to it with meaningful information or otherwise 
fails  to  cooperate  during  the  procedure.  In  that  way,  the  treatment  of  complaints  could  be 
streamlined and improved (Amendment to Article 20(2)). 

* 

* 

* 

Complainants  mainly  draw  the  attention  of  the  Commission  to  aid  which  has  already  been 
granted  and  therefore  constitutes  potential  illegal  aid.  In  2009,  the  Commission  adopted  a 
Notice  on  the  enforcement  of  State  aid  law  by  national  courts18  in  order  to  inform  national 
courts  and  interested  parties  about  the  remedies  available  and  has  sought  to  develop  its 

12 

13 

14 
15 
16 

17 

18 

Council  Regulation  (EC)  No  1/2003  of  16  December  2002  on  the  implementation  of  the  rules  on 
competition laid down in Articles 81 and 82 of the Treaty, OJ L 1, 4.1.2003, p. 1. 
Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by 
the Commission pursuant to Articles 81 and 82 of the EC Treaty, OJ L 123, 27.4.2004, p.18. 
Case T-442/07 Ryanair v Commission [2011], not yet published, paragraph 33. 
See Case 323/82 Intermills v Commission [1984] ECR 3809, paragraph 16. 
Article  1(h) of  Council  Regulation 659/99: "‘interested  party’  shall mean any  Member  State  and any 
person, undertaking or association of undertakings whose interests might be affected by the granting of 
aid, in particular the beneficiary of the aid, competing undertakings and trade associations." 
Communication  from  the  Commission,  Best  Practices  Code  for  the  conduct  of  State  aid  procedures, 
cited above footnote 11. 
Commission notice on the enforcement of State aid law by national courts, OJ C 85, 09.04.2009, p. 1. 

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cooperation  with  national  courts  by  introducing  more  practical  tools  for  supporting  national 
judges in their daily work.  

It  is  proposed  to  expressly  provide  that  national  courts  have  the  right  to  obtain  from  the 
Commission  information  for  the  purpose  of  applying  Articles  107(1)  and  108  TFEU  and  to 
ask for an opinion of the Commission on questions related to the application of State aid rules 
(New Article 23a(1)). 

It is also proposed to introduce the right for the Commission to make submissions to national 
courts  in  written  or  oral  form  (New  Article  23a(2)).  The  Commission  may  act  under  that 
provision only in the Union public interest (as amicus curiae), i.e. not in support of one of the 
parties. That proposed provision aims in particular at permitting the Commission to draw the 
attention  of  Member  States'  courts  to  issues  of  considerable  importance  for  the  consistent 
application of EU State aid law across the internal market. The national courts are not bound 
to follow an opinion of the Commission. The new Article 23a is also without prejudice to the 
right or duty of national courts to request preliminary rulings from the Court of Justice under 
Article 267 TFEU.  

* 

* 

* 

The  above  proposals  should  ensure  that  the  Commission  receives  better  substantiated 
complaints and will therefore have a positive impact on all the actors involved in the handling 
of State aid complaints.  

The  compulsory  use  of  the  complaints  form  will  facilitate  the  work  of  the  Commission  to 
identify whether a complaint involves State aid issues and to determine the degree of priority 
which  should  be  given  to  each  complaint,  without  having  to  send  iterative  information 
requests to the Member State concerned or the complainant. Given that the Member States are 
entitled to comment upon and react to each complaint, a possible reduction in the number of 
complaints would moreover reduce the workload for the Member State concerned. 

Where complainants also lodge actions before national courts based on claims of breaches of 
EU  State  aid  law,  national  courts  will  find  in  the  Procedural  Regulation  the  tools  at  their 
disposal to obtain the Commission's support. That cooperation which will take place within an 
appropriate timeline should facilitate the implementation of EU State law by national courts. 
The  fact  that  the  Commission  can  also  offer  its  assistance  on  its  own  initiative  to  national 
courts will also be useful to raise national courts and litigants' awareness of the cooperation 
mechanisms  between  the  Commission  and  the  national  courts,  demonstrate  their  usefulness 
and foster their use.  

Since complainants are not always aware of the information that the Commission needs to be 
able  to  swiftly  assess  a  State  aid  complaint,  a  compulsory  complaints  form  will  guide 
complainants  in  the  process  of  collecting  and  presenting  the  information  needed  for  the 
Commission  to  conclude  on  the  existence  of  aid  in  a  given  case.  This  should  significantly 
reduce the need to send subsequent information requests to complainants, since they will have 
provided  all  the  necessary  information  at  their  disposal  from  the  start.  The  increased 
transparency and predictability of the procedure will in itself give complainants a clearer view 
on  the  state  of  play  and  progress  of  the  investigation,  thereby  avoiding  unnecessary 
correspondence.  

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2.2. 

ENSURING  AN  EFFECTIVE  AND  RELIABLE  GATHERING  OF 
INFORMATION FROM THE MARKET  

Over the last years, there has been a significant refinement in the compatibility assessment of 
State  aid  measures.  The  Commission  relies  on  an  effects-based  approach  which  seeks  to 
balance  the  positive  and  negative  effects  of  State  aid  measures  under  assessment.  The 
compatibility  assessment  of  an  aid  measure  depends  on  the  design  of  the  measure  and  its 
impact on the market. A proper facts-based assessment has therefore become more important, 
in particular for complex cases. 

To meet the Commission's needs in terms of information gathering, it is therefore proposed to 
introduce  market  information  tools  (MIT)  (2.2.1)  and  a  legal  basis  for  conducting 
investigations  into  particular  sectors  of  the  economy  and  into  particular  aid  instruments 
(2.2.2)  in  order  to  enable  the  Commission  to  obtain  timely,  reliable,  factually  correct  and 
complete information directly from the market.  

2.2.1  Market information tools (MIT) 

The current procedural framework as regards the Commission's powers to obtain information 
during State aid proceedings gives rise to a number of difficulties. Where the Commission is 
dependent  on  information  provided  by  the  Member  State,  delays  can  arise  when  the 
information  is  not  readily  available  to  the  national  authorities  and  can  place  a  significant 
burden on those authorities in certain cases.  

The Commission tried to tackle some of those issues in the Best Practices Code19. It was in 
particular  formalised  that  the  Commission  services  can  send,  in  the  context  of  the  formal 
investigation procedure, a copy of the decision to initiate the formal investigation procedure 
to  interested  parties  and  invite  them  to  comment  on  specific  aspects  of  the  case.  By 
introducing  the  possibility  to  impose  sanctions  for  submitting  incomplete  or  incorrect 
information in replying to an information request, it will be possible to improve the quality of 
information received by the Commission.  

To  improve  the  efficiency  and  transparency  of  the  procedure,  it  is  proposed  to  go  a  step 
further and codify the power that the European Court of Justice recognised to the Commission 
on multiple occasions to consult the market20. 

It  is  proposed  that  the  Commission  may  require  information  via  simple  request  for 
information  or  by  decision  from  entities  other than  the  Member  State  concerned  in  notified 
and unlawful aid procedures after the opening of the formal investigation (New Article 6a and 
amended Article 10). 

As in antitrust and mergers, those market information tools would consist in the possibility to 
request information from any undertaking, association of undertakings or Member State (New 
Article 6a), coupled with the possibility to sanction the companies concerned through fines or 
penalty payments (New Article 6b) if they fail to respond or to provide complete information. 

19 

20 

Point  34,  Communication  from  the  Commission,  Best  Practices  Code  for  the  conduct  of  State  aid 
procedures, cited above footnote 11. 
Case 84/82 Germany v Commission [1984] ECR 1451; Case T-198/01 Technische Glaswerke Ilmenau 
v  Commission  [2004]  ECR  II-2717;  Case  T-73/98  Prayon-Rupel  v  Commission  [2001]  ECR  II-867; 
Case T-304/08 Smurfit Kappa v Commission [2012], not yet published;. 

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This would deter third parties from submitting biased information. Furthermore, the fact that 
the same question will be asked to different companies and the replies received submitted to 
the Member State for comments would allow the Commission to cross check the information 
and ensure the reliability of the data received.  

In setting the amount of fines and periodic penalty payments, the Commission would take into 
account the experience gathered in the field of mergers and antitrust. Therefore, the pecuniary 
sanctions would be in line with the existing values under Council Regulation 139/200421 and 
Council  Regulation  1/200322.  The  values  chosen  offer  sufficient  incentives  for  parties 
concerned to comply, being proportionate as to the potential gravity of the offence: 

– 

– 

fines  not  exceeding  1%  of  the  total  turnover  for  supplying  incorrect  or 
misleading  information  in  response  to  simple  requests  or  requests  made  by 
decisions  or  for  not  replying  to  requests  made  by  decisions  (New  Article 
6b(1)).  

periodic penalty payments not exceeding 5% of the average daily turnover for 
each working day of delay, calculated from the date set in the decision in order 
to  compel  them  to  supply  complete  and  correct  information  which  has  been 
requested by decision (New Article 6b(2)). 

In  line  with  the  principle  of  sincere  cooperation  enshrined  in  the  Treaty  on  the  European 
Union,  requests  sent  to  Member  States  and  public  authorities  would  not  entail  the  possible 
imposition of fines or periodic penalty payments under the Procedural Regulation.  

For  reasons  of  legal  certainty,  it  is  appropriate  to  establish  limitation  periods  for  the 
imposition and enforcement of fines or periodic penalty payments which are in line with the 
provisions of Council Regulation 1/200323 (New Articles 15a and 15b).  

Market information tools would be mostly used in complex individual cases requiring an in-
depth assessment, in order to tackle a series of issues as regards the qualification of aid or its 
compatibility assessment. The following examples may serve to illustrate the future use of the 
instrument:  assessing  normal  market  practice  (e.g.  State  aid  element  in  guarantees/loans), 
market  failures  and/or  incentive  effect  benchmarking.  Selecting  the  addressees  of  the 
information requests will be based on objective criteria depending on each case. For example, 
besides  the  aid  beneficiary,  requests  could  be  sent  to  competitors,  customers,  consumer 
associations,  etc.,  while  ensuring  that  within  each  category  the  sample  of  respondents  is 
representative. 

The information sought will be readily available to the market actors concerned and consist in 
particular in: 

– 

Factual market data (e.g. market size, market shares, level of imports etc.) and 
company data (e.g. cost structure, profits, ownership and control, participations 
in other companies, etc.);  

21 

22 

23 

Articles  13  and  14,  Council  Regulation  (EC)  No  139/2004  of  20  January  2004  on  the  control  of 
concentrations between undertakings (the EC Merger Regulation), OJ L 24, 29.01.2004, p. 1.  
Articles 22 and 23, Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of 
the rules on competition laid down in Articles 81 and 82 of the Treaty, OJ L 1, 04.01.2003, p. 1. 
Articles 25 and 26, Council Regulation (EC) No 1/2003 of 16 December 2002 cited above footnote 22. 

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– 

Facts-based analysis of the functioning of the market (e.g. entry barriers, cost 
of  entry,  regulatory  barriers,  growth  rate  of  the  market  and  growth 
perspectives,  overcapacity),  likely  impact  of  the  aid  on  the  beneficiary, 
assessment of proposed remedies or compensatory measures. 

Confidentiality  of  the  sensitive  information  provided  by  the  Member  States  will  be  fully 
guaranteed when using MIT. The opening decision already aims at informing third parties of 
the  main  features  of  a  case  in  a  manner  that  protects  potentially  sensitive  information.  The 
Commission will also ensure that no sensitive information is disclosed when drafting requests 
to third parties. 

When replying to a request for information, market participants will be invited to provide the 
Commission  with  the  non-confidential  version  of  their  reply.  If  certain  data  are  considered 
confidential, the Commission will ensure that they are adequately protected (for example, by 
aggregating data or providing a range in which the figures fall).  

If  the  Commission  wants  to  use  confidential  information  provided  by  third  parties  which 
cannot  be  aggregated  or  otherwise  be  anonymised,  it  will  have  to  obtain  their  agreement 
before it discloses that information to the Member State to be able to use it in the Decision.  

In  cases  where  the  information  marked  as  confidential  does  not  seem  to  be  covered  by 
obligations  of  professional  secrecy,  it  is  appropriate  to  establish  a  mechanism  by  which  the 
Commission  can  decide  the  extent  to  which  such  information  can  be  disclosed.  Any  such 
decision not to accept a claim that information is confidential should indicate a period at the 
end of which the information will be disclosed, so that the third party concerned can make use 
of any judicial protection available to it, including any interim measure (New Article 7(9)). 

* 

* 

* 

Introducing MIT should lead to a reduction of the administrative burden for Member States. 
By  allowing  the  Commission  to  relieve  the  national  authorities  of  some  of  the  burden  of 
information-gathering, especially in cases where the information is not at the disposal of the 
Member State and obtaining it would entail significant additional efforts from its part, and to 
directly  tap  into  already  existing  information  at  companies'  level  (e.g.  for  market  shares, 
market structure etc.), a better balance between the aid grantor and the final aid beneficiary 
could ultimately be achieved.  

However,  the  Member  State's  obligation  to  provide  all  evidence  demonstrating  the 
compatibility  of  an  aid  measure  will  not  be  modified  under  the  modernised  rules.  Nor  will 
they alter the bilateral nature of the State aid procedure. MIT would duly associate Member 
States  to  the  procedure,  by  giving  them  the  possibility  to  present  their  comments  on  the 
replies to information requests (New Article 7(8)). In that way, their rights of defence will be 
upheld and the transparency of the procedure guaranteed.  

Direct correspondence between the aid beneficiary and the Commission services would help 
better  identify  what  is  truly  needed  to  conclude  the  compatibility  assessment  in  a  timely 
manner,  which  would  be  beneficial  for  the  aid  recipient  and  the  Member  State.  That 
development would also improve the predictability of the beneficiary's situation. The targeted 
factual  data  requested  will  be  readily  available  to  the  beneficiary  and  should  entail  only  a 

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fairly  limited  effort  from  its  part,  which  it  will  be  ready  to  exert  swiftly  in  order  to 
demonstrate that the aid it seeks to obtain is actually justified. 

The  use  of  MIT  by  the  Commission  will  also  be  in  the  interest  of  competitors  and 
complainants, as it will allow the Commission to more  carefully  assess the compatibility of 
the  aid  in  question,  thereby  preventing  or  remedying  the  undue  distortions  of  competition 
stemming from incompatible aid.  

By using MIT, the Commission will be able to reach the appropriate third parties directly and 
simultaneously.  This  will  contribute  to  more  transparent,  accurate,  and  swift  information 
flows,  which  should  reduce  the  number  for  repetitive  and  successive  information  requests, 
thereby  shortening  the  duration  of  the  investigation.  The  Commission  will  apply  a 
proportionality  criterion  when  requesting  information  from  the  market.  Thereby,  the  burden 
on the companies concerned will be reduced to the minimum necessary for the Commission to 
complete its assessment of a State aid measure. Small and medium-sized enterprises (SMEs) 
will  only  be  exceptionally  concerned  by  MIT,  given  that  MIT  would  be  mostly  used  in 
complex  individual  cases  requiring  an  in-depth  assessment,  while  most  of  the  aid  SMEs 
receive is granted through schemes, either approved or blocked-exempted24. In the very rare 
cases where MIT could concern SMEs, the Commission will adapt its requirements in light of 
the above-mentioned principle of proportionality. 

Introducing MIT after the opening of the formal investigation would  not change  the role of 
third parties as a source of information which is already currently foreseen and confirmed by 
clear  case-law  of  the  Court  of  Justice.  Nevertheless,  the  addressees  of  decisions  imposing 
fines  and/or  penalty  payments  will  have  the  right  to  make  their  views  known  (New  Article 
6b(5)) and to challenge such decisions (New Article 6b(6)). 

The  new  rules  regarding  information-gathering  are  necessary  in  order  to  ensure  that  the 
Commission adopts sound and substantiated decisions within business-relevant timelines. In 
that  way,  the  Commission  will  increase  legal  certainty  for  Member  States  and  companies, 
while at the same time making the State aid policy more efficient and transparent. 

2.2.2  Investigations into sectors of the economy and into aid instruments 

In accordance with the objectives of the State Aid Modernisation initiative, the Commission is 
committed  to  focusing  its  efforts  on  the  most  distortive  cases  for  the  functioning  of  the 
internal  market.  By  applying  an  enhanced  horizontal  approach  in  its  investigations,  the 
Commission  would  be  in  a  better  position  to  detect  aid  in  a  particular  sector  or  based  on  a 
particular instrument which may restrict or distort competition.  

The need for reinforced horizontal information is particularly manifest in cases where the data 
in  the  possession  of  the  Commission  (whether  obtained  via  complaints,  notifications  or 
market  information)  would  raise  issues  linked  to  a  specific  sector  in  several  Member  States 
and there are indications that similar problems may exist in other Member States. 

24 

According  to  the  data  published  in  the  latest  State  aid  Scoreboard  (SEC(2011)  1487  final),  in  2010 
88.5%  of  the  total  amount  of  aid  granted  by  Member  States  was  done  through  approved  schemes  or 
blocked-exempted measures. Moreover, 100% of the aid for the horizontal objective SMEs was granted 
through schemes or block exempted measures.  

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Following the recommendations of the Court of Auditors that the Commission should step up 
its  monitoring  activities  both  in  terms  of  sample  size  and  of  scope25,  the  Commission  has 
already increased the use of its currently existing powers to monitor approved aid measures 
and  exempted  schemes  ex-post.  By  so  doing,  it  can  collect  horizontal  information  from 
Member States on specific economic sectors or the use of particular aid instruments in several 
Member States. To increase its knowledge of a particular sector of the economy or State aid 
issue,  the  Commission  may  also  send  questionnaires,  address  requests  to  Member  States  or 
order expert reports and in the future address information requests to market participants. 

To complete the existing powers of the Commission and to obtain an ex ante holistic view of 
the  market,  it  is  proposed  to  introduce  a  specific  legal  basis  to  launch  investigations  into 
sectors of the economy and into types of aid measures (New Article 20a).  

The  Commission  would  carry  out  that  activity  by  using  its  power  to  send  requests  for 
information  to  the  Member  States  and  to  any  relevant  market  players.  At  the  end  of  its 
inquiry,  the  Commission  may  publish  a  report  on  the  results  of  the  inquiry  into  particular 
sectors of the economy. 

Before  formally  launching  a  sector  inquiry,  the  Commission  would  have  to  analyse  all 
information  which  is  already  at  its  disposal  or  available  in  the  public  domain.  For 
proportionality  reasons,  launching  a  sector  inquiry  will  therefore  require  indications  from 
publicly available sources that State aid issues in a particular sector or concerning the use of a 
particular aid instrument exist in several Member States: e.g. that existing aid measures in a 
particular sector or based on a particular aid instrument in several Member States are not, or 
no longer, compatible with the internal market.  

Sector  inquiries  would  entail  a  limited  initial  effort  from  some  market  players  to  which 
requests for non-public information will be addressed in the first place. The Commission will 
then also ask the Member States for information and invite them to comment and give their 
views on its findings. The impact of that initial workload would however be outweighed by a 
significant reduction in the workload involved in the future investigation of individual cases 
for  all  concerned  (Member  States,  beneficiaries,  market  players  and  the  Commission)  via  a 
reduction  of  the  number  of  requests  for  information  needed,  and  the  efficiency  gains  to  be 
expected in the enforcement of State aid rules through greater transparency and speed. 

3. 

RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND 
IMPACT ASSESSMENTS 

Consultation of interested parties and use of expertise 

The reform of State aid procedures was presented to and discussed with the Member States at 
high level meetings organised on 6 March, 11 July 2012. In addition, a technical workshop on 
market information tools and sector inquiries took place on 19 September 2012.  

A public consultation on the handling of State aid complaints and on information gathering in 
State aid investigations was carried out from 13 July 2012 to 5 October 2012. The replies to 
this  public  consultation  are  available  on  the  DG  Competition  website  and  the  results  were 
presented to the Member States at a high level meeting organised on 9 November 2012.  

25 

Special report n°15/2011, European Court of Auditors, p. 41, cited above footnote 5. 

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Impact assessment 

Not applicable 

4. 

LEGAL ELEMENTS OF THE PROPOSAL 

Summary of the proposed action 

The  proposal  consists  in  amending  the  provisions  of  Council  Regulation  (EC)  No  659/99 
laying  down  the  rules  of  procedure  in  State  aid  investigations  as  regards  the  handling  of 
complaints and the gathering of information from the market.  

Legal basis 

The legal basis of the proposal is Article 109 of the Treaty on the Functioning of the European 
Union. 

Subsidiarity and proportionality 

The proposed amendments to the Procedural Regulation aim at making State aid procedures 
more  efficient,  thereby  contributing  to  maintaining  the  integrity  of  the  internal  market  and 
achieving  the  objectives  of  the  State  aid  modernisation  initiative  and  more  generally  the 
Europe  2020  strategy.  They  will  inter  alia  also  alleviate  the  administrative  burden  put  on 
Member  States  and  third  parties.  Therefore,  the  present  proposal  of  the  Commission  is 
proportionate to the political objective pursued. 

The  present  proposal  concerns  the  application  of  State  aid  rules,  which  falls  within  the 
exclusive competence of the European Union. Therefore the principle of subsidiarity does not 
apply. 

Choice of instrument 

Council Regulation amending Council Regulation (EC) No. 659/99 of 22 March 1999 laying 
down detailed rules for the application of Article 93 of the EC Treaty. 

5. 

BUDGETARY IMPLICATION  

This proposal for an amendment has no impact on the EU budget (Articles 28 of the Financial 
Regulation and 22 of the implementing rules).  

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12 

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2012/0342 (NLE) 

Proposal for a 

COUNCIL REGULATION 

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

(Text with EEA relevance) 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 109 thereof, 

Having regard to the proposal from the European Commission, 

Having regard to the opinion of the European Parliament26, 

Whereas: 

(1) 

(2) 

In the context of a thorough modernization of State aid rules to contribute both to the 
implementation  of  the  Europe  2020  strategy  for  growth27  and  to  budgetary 
consolidation,  Article  107  of  the  Treaty  should  be  applied  effectively  and  uniformly 
throughout  the  Union.  Council  Regulation  (EC)  No  659/1999  of  22  March  1999 
codified and reinforced the Commission's previous practice to increase legal certainty 
and  to  support  the  development  of  State  aid  policy  in  a  transparent  environment. 
However,  in  the  light  of  the  experience  gained  in  its  application  and  of  recent 
developments  such  as  enlargement  and  the  economic  and  financial  crisis,  certain 
aspects of that Regulation should be amended in order to enable the Commission to be 
more effective.  

In order to assess the compatibility with the internal market of any notified or unlawful 
State aid,  for which the Commission  has exclusive competence under Article 108 of 
the  Treaty,  it  is  appropriate  to  ensure  that  the  Commission  has  the  power,  for  the 
purposes of enforcing the State aid rules, to request all necessary information from any 
undertaking, association of undertakings or Member State whenever it has doubts as to 
the  compatibility  of  the  measure  concerned  and  has  therefore  opened  the  formal 
investigation.  

26 
27 

OJ C […], […], p. 
Communication  from  the  Commission,  Europe  2020:  A  strategy  for  smart,  sustainable  and  inclusive 
growth, 3.3.2010, COM(2010) 2020 final.  

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(3) 

(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

For the purpose of assessing the compatibility of an aid measure after the opening of 
the  formal  investigation  procedure,  in  particular  as  regards  novel  or  technically 
complex measures subject to detailed assessment, the Commission should be able, by 
simple request or by decision, to require any undertaking, association of undertakings 
or Member State to provide all information necessary for completing its assessment, if 
the information at its disposal is not sufficient, taking due account of the principle of 
proportionality, in particular for small and medium-sized enterprises. 

The Commission should be able to enforce compliance with requests for information 
addressed to any undertaking or association of undertakings, as appropriate, by means 
of  proportionate  fines  and  periodic  penalty  payments.  The  rights  of  the  parties 
requested  to  provide  information  should  be  safeguarded  by  giving  them  the 
opportunity to make their views known before any decision imposing fines or periodic 
penalty payments. The Court of Justice of the European Union should have unlimited 
jurisdiction with regard to such fines and periodic penalties pursuant to Article 261 of 
the Treaty. 

Fines  and  periodic  penalty  payments  are  not  applicable  to  Member  States  since  they 
are  under  a  duty  to  cooperate  sincerely  with  the  Commission  in  accordance  with 
Article  4  of  the  Treaty  on  European  Union,  and  to  provide  it  with  all  information 
required  to  allow  the  Commission  to  carry  out  its  duties  under  Regulation  (EC)  No 
659/1999.  

In order to safeguard the rights of defence of the Member State concerned, they should 
be  informed  of  the  content  of  requests  for  information  sent  to  undertakings, 
associations  of  undertakings  or  Member  States  and  be  able  to  submit  their 
observations on the comments received that raise doubts as regards the compatibility 
of the aid measure at stake.  

The Commission should take due account of the legitimate interest of undertakings in 
the  protection  of  their  business  secrets.  The  Commission  should  not  be  able  to  use 
confidential  information  provided  by  respondents,  which  cannot  be  aggregated  or 
otherwise  be  anonymised,  in  any  decision  unless  it  has  previously  obtained  their 
agreement to disclose that information to the Member State concerned.  

In cases where that information marked as confidential does not seem to be covered by 
obligations  of  professional  secrecy,  it  is  appropriate  to  establish  a  mechanism  by 
which  the  Commission  can  decide  the  extent  to  which  such  information  can  be 
disclosed.  Any  such  decision  not  to  accept  a  claim  that  information  is  confidential 
should indicate a period at the end of which the information will be disclosed, so that 
the  third  party  concerned  can  make  use  of  any  judicial  protection  available  to  it, 
including any interim measure. 

The  Commission  may,  on  its  own  initiative,  examine  information  from  whatever 
source on unlawful aid, in order to ensure compliance with Article 108 of the Treaty, 
and  in  particular  with  the  notification  obligation  and  standstill  clause  laid  down  in 
Article 108(2) of the Treaty, and to assess their compatibility with the internal market. 
In  that  context,  complaints  are  an  essential  source  of  information  for  detecting 
infringements of Union State aid rules.  

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14 

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(10)  To improve the quality of the complaints submitted to the Commission and at the same 
time increase transparency and legal certainty, it is appropriate to define the conditions 
that  a  complaint  should  fulfil  in  order  to  put  the  Commission  in  possession  of 
information  regarding  alleged  unlawful  aid  and  set  in  motion  the  preliminary 
examination.  

(11)  Complainants should be required to demonstrate that they are interested parties within 
the meaning of Article 108(2) TFEU and of Article 1(h) of Regulation 659/99. They 
should also be required to provide a certain amount of information in a form that the 
Commission should be empowered to define in an implementing provision.  

(12)  For  reasons  of  legal  certainty,  it  is  appropriate  to  establish  limitation  periods  for  the 

imposition and enforcement of fines and periodic penalty payments.  

(13) 

In order to ensure that the Commission addresses similar issues in a consistent manner 
across  the  internal  market,  it  is  appropriate  to  complete  the  existing  powers  of  the 
Commission by introducing a specific legal basis to launch investigations into sectors 
of  the  economy  or  into  certain  aid  instruments  across  several  Member  States.  For 
reasons  of  proportionality,  sector  inquiries  should  be  based  on  a  prior  analysis  of 
publicly  available  information  pointing  to  the  existence  of  State  aid  issues  in  a 
particular  sector  or  concerning  the  use  of  a  particular  aid  instrument  in  several 
Member States, for example, that existing aid measures in a particular sector or based 
on  a  particular  aid  instrument  in  several  Member  States  are  not,  or  no  longer, 
compatible with the internal market. Such inquiries would enable the Commission to 
deal in an efficient and transparent way with horizontal State aid issues.  

(14)  Consistency  in  the  application  of  State  aid  rules  requires  that  arrangements  be 
established  for  cooperation  between  the  courts  of  the  Member  States  and  the 
Commission.  Such  cooperation  is  relevant  for  all  courts  of  the  Member  States  that 
apply Article 107(1) and Article 108 of the Treaty, in whatever context. In particular, 
national courts should be able to ask the Commission for information or for its opinion 
on points concerning the application of State aid law. The Commission should also be 
able  to  submit  written  or  oral  observations  to  courts  which  are  called  upon  to  apply 
Article  107(1)  or  Article  108  of  the  Treaty.  Those  observations  should  be  submitted 
within  the  framework  of  national  procedural  rules  and  practices  including  those 
safeguarding the rights of the parties.  

(15) 

In  the  interests  of  transparency  and  legal  certainty,  information  on  Commission 
decisions  should  be  made  public.  It  is  therefore  appropriate  to  publish  decisions  to 
impose  fines or periodic penalty  payments,  given that they affect the interests of the 
sources concerned. The Commission, when publishing its decisions, should respect the 
rules on professional secrecy, in accordance with Article 339 of the Treaty. 

(16)  The Commission, in close liaison  with the Advisory Committee on State aid, should 
be  able  to  adopt  implementing  provisions  laying  down  detailed  rules  concerning  the 
form, content and other criteria of the complaints submitted in accordance with Article 
10(1) and Article 20 of Regulation (EC) No 659/1999.  

(17)  Council Regulation (EC) No 659/1999 should therefore be amended accordingly, 

EN 

15 

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HAS ADOPTED THIS REGULATION: 

Regulation (EC) No 659/1999 is amended as follows:  

(1) 

The title of Article 5 is replaced by the following: 

Article 1 

"Request for information made to the notifying Member State"; 

(2) 

The following Articles 6a and 6b are inserted:  

"Article 6a 

Request for information made to other sources  

1.  After  the  initiation  of  the  formal  investigation  procedure  provided  for  in  Article  6,  the 
Commission  may,  if  it  considers  it  to  be  relevant,  require  an  undertaking,  an  association  of 
undertakings  or  another  Member  State  to  provide  all  information  necessary  to  enable  it  to 
complete  its  assessment  of  the  measure  at  stake,  if  the  information  available  to  it  is  not 
sufficient.  

2. Member States shall provide the information on the basis of a simple request and within a 
time limit which should normally not exceed one month. 

3. The Commission may require an undertaking or an association of undertakings to provide 
information by simple request. Where the Commission sends a simple request for information 
to  an  undertaking  or  an  association  of  undertakings,  it  shall  state  the  legal  basis  and  the 
purpose  of  the  request,  specify  what  information  is  required  and  fix  the  time  limit  within 
which the information is to be provided. It shall also refer to the fines provided for in Article 
6b(1) for supplying incorrect or misleading information. 

4. The Commission may require an undertaking or an association of undertakings to provide 
information by decision. Where the Commission requires an undertaking or an association of 
undertakings to supply information by decision, it shall state the legal basis, the purpose of the 
request,  specify  what  information  is  required  and  fix  the  time  limit  within  which  the 
information is to be provided. It shall also indicate the fines provided for in Article 6b(1) and 
indicate  or  impose  the  periodic  penalties  payments  provided  for  in  Article  6b(2).  It  shall 
further  indicate  the  right  for  the  undertaking  or  association  of  undertakings  to  have  the 
decision reviewed by the Court of Justice. 

5. The Commission shall inform the Member State concerned of the content of requests for 
information sent pursuant to paragraphs 1 to 4. 

6. The owners of the undertakings or their representatives and, in the case of legal persons, 
companies  or  firms,  or  associations  having  no  legal  personality,  the  persons  authorised  to 
represent  them  by  law  or  by  their  constitution,  shall  supply  the  information  requested  on 
behalf  of  the  undertaking  concerned.  Persons  duly  authorised  to  act  may  supply  the 
information  on  behalf  of  their  clients.  The  latter  shall  remain  fully  responsible  if  the 
information supplied is incomplete, incorrect or misleading. 

Article 6b 

Fines and periodic penalty payments 

1. The Commission may by decision impose on undertakings or associations of undertakings 
fines  not  exceeding  1%  of  the  total  turnover  in  the  preceding  business  year  where, 
intentionally or negligently: 

EN 

16 

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(a) they supply incorrect or misleading information in response to a request made pursuant to 
Article 6a(3); 

(b)  they  supply  incorrect,  incomplete  or  misleading  information  in  response  to  a  decision 
adopted pursuant to Article 6a(4), or do not supply the information within the specified time 
limit. 

2. The Commission may, by decision, impose on undertakings or associations of undertakings 
periodic  penalty  payments  not  exceeding  5%  of  the  average  daily  turnover  in  the  preceding 
business  year  for  each  working  day  of  delay,  calculated  from  the  date  established  in  the 
decision, until they supply complete and correct information as requested by the Commission 
by decision adopted pursuant to Article 6a(4). 

3.  In  fixing  the  amount  of  the  fine  or  periodic  penalty  payment,  regard  shall  be  had  to  the 
nature, gravity and duration of the infringement. 

4. Where the undertakings or associations of undertakings have satisfied the obligation which 
the periodic penalty payment was intended to enforce, the Commission may fix the definitive 
amount of the periodic penalty payment at a figure lower than that which would arise under 
the original decision imposing periodic penalty payments.  

5. Before adopting any decision in accordance with paragraphs 1 and 2, the Commission shall 
give  the  undertakings  or  associations  of  undertakings  concerned  the  opportunity  of  making 
known their views. 

6.  The  Court  of  Justice  of  the  European  Union  shall  have  unlimited  jurisdiction  within  the 
meaning  of  Article  261  of  the  Treaty  on  the  Functioning  of  the  European  Union  to  review 
fines  or  periodic  penalty  payments  imposed  by  the  Commission.  It  may  cancel,  reduce  or 
increase the fine or periodic penalty payment imposed."; 

(3) 

In Article 7, the following paragraphs 8 to 10 are added: 

"8. Before adopting any decision in accordance with paragraphs 2 to 5, the Commission shall 
give  the  Member  State  concerned  the  opportunity  of  making  known  its  views  on  the 
information  received  by  the  Commission  pursuant  to  Article  6a,  to  the  extent  that  such 
information raises doubts as to the compatibility of the measure.  

9.  The  Commission  shall  not  use  confidential  information  provided  by  respondents,  which 
cannot be aggregated or otherwise be anonymised, in any decision taken in accordance with 
paragraphs  2  to  5  unless  it  has  obtained  their  agreement  to  disclose  that  information  to  the 
Member  State  concerned.  The  Commission  may  take  a  reasoned  decision,  which  shall  be 
notified to the undertaking or association of undertakings concerned, finding that information 
marked  as  confidential  provided  by  a  respondent  is  not  protected  and  fixing  a  period  at  the 
end of which the information will be disclosed. That period shall not be less than one month. 

10. The Commission shall take due account of the legitimate interest of undertakings in the 
protection of their business secrets. If an undertaking or association of undertakings providing 
information  pursuant  to  Article  6a  so  requests,  on  grounds  of  potential  damage,  its  identity 
shall be withheld from the Member State concerned."; 

(4) 

Article 10 is amended as follows: 

Paragraphs 1 and 2 are replaced by the following:  

"1.  Without  prejudice  to  Article  20,  the  Commission  may  on  its  own  initiative  examine 
information from whatever source regarding alleged unlawful aid. 

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17 

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The  Commission  shall  examine  without  undue  delay  any  complaint  submitted  by  any 
interested party in accordance with Article 20(2). 

2. If necessary, the Commission shall request information from the Member State concerned. 
Article 2(2) and Article 5(1) and (2) shall apply mutatis mutandis.  

After the initiation  of the formal investigation procedure, the Commission  may  also  request 
information  from  other  sources.  The  provisions  of  Article  6a  and  6b  shall  apply  mutatis 
mutandis."; 

(5) 

The following chapter heading is inserted after Article 14: 

"CHAPTER IIIA  

LIMITATION PERIODS"; 

(6) 

The title of Article 15 is replaced by the following:  

"Limitation period for the recovery of aid"; 

(7) 

The following Articles 15a and 15b are inserted: 

"Article 15a 

Limitation period for the imposition of fines and periodic penalty payments 

1.  The  powers  conferred  on  the  Commission  by  Article  6b  shall  be  subject  to  a  limitation 
period of three years.  

2. Time shall start running on the day on which the infringement is committed. However, in 
the case of continuing or repeated infringements, time shall begin to run on the day on which 
the infringement ceases. 

3. Any action taken by the Commission for the purpose of the investigation or proceedings in 
respect of an infringement shall interrupt the limitation period for the imposition of fines or 
periodic  penalty  payments,  with  effect  from  the  date  on  which  the  action  is  notified  to  the 
undertaking or association of undertakings concerned. 

4.  Each  interruption  shall  start  time  running  afresh.  However,  the  limitation  period  shall 
expire  at  the  latest  on  the  day  on  which  a  period  equal  to  twice  the  limitation  period  has 
elapsed without the Commission having imposed a fine or a periodic penalty payment. That 
period  shall  be  extended  by  the  time  during  which  the  limitation  period  is  suspended  in 
accordance with paragraph 5. 

5.  The  limitation  period  for  the  imposition  of  fines  or  periodic  penalty  payments  shall  be 
suspended for as long as the decision of the Commission is the subject of proceedings pending 
before the Court of Justice. 

Article 15b 

Limitation periods for the enforcement of fines and periodic penalty payments 

1. The powers of the Commission to enforce decisions taken pursuant to Article 6b shall be 
subject to a limitation period of five years.  

2. Time shall start running on the day on which the decision becomes final. 

3.  The  limitation  period  for  the  enforcement  of  fines  or  periodic  penalty  payments  shall  be 
interrupted: 

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18 

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(a)  by  notification  of  a  decision  varying  the  original  amount  of  the  fine  or  periodic  penalty 
payment or refusing an application for variation; 

(b)  by  any  action  of  the  Commission  or  of  a  Member  State,  acting  at  the  request  of  the 
Commission, intended to enforce payment of the fine or periodic penalty payment. 

4. Each interruption shall start time running afresh. 

5.  The  limitation  period  for  the  enforcement  of  fines  or  periodic  penalty  payments  shall  be 
suspended for so long as: 

(a) time to pay is allowed; 

(b) enforcement of payment is suspended pursuant to a decision of the Court of Justice."; 

(8) 

Article 16 is replaced by the following: 

"Article 16 

Misuse of aid 

Without  prejudice  to  Article  23,  the  Commission  may  in  cases  of  misuse  of  aid  open  the 
formal investigation procedure pursuant to Article 4(4). Articles 6, 6a and 6b, Article 7(1) to 
(5), Articles 9 and 10, Article 11(1) and Articles 12 to 15 shall apply mutatis mutandis." ;  

(9) 

In Article 20, paragraph 2 is replaced by the following: 

"2.  Any  interested  party  may  submit  a  complaint  to  inform  the  Commission  of  any  alleged 
unlawful  aid  and  any  alleged  misuse  of  aid.  To  that  effect,  the  interested  party  shall  duly 
complete  a  form  that  the  Commission  should  be  empowered  to  define  in  an  implementing 
provision and provide all the mandatory information requested in it. 

Where the Commission considers that the facts and points of law put forward by the interested 
party  do  not  provide  sufficient  grounds  to  show,  on  the  basis  of  a  first  examination,  the 
existence of unlawful aid or misuse of aid, it shall inform the interested party thereof and call 
upon it to submit comments within a prescribed period which shall not normally exceed one 
month. If the interested party fails to make known its views within the prescribed period, the 
complaint shall be deemed to have been withdrawn.  

The Commission shall send a copy of the decision on a case concerning the subject matter of 
the complaint to the interested party."; 

(10)  The following Chapter VIa is inserted after Article 20:  

"CHAPTER VIA  

INVESTIGATIONS INTO SECTORS OF THE ECONOMY AND INTO AID INSTRUMENTS 

Article 20a 

Investigations into sectors of the economy and into aid instruments 

1. Where the information available suggests that State aid measures in a particular sector or 
based  on  a  particular  aid  instrument  may  restrict  or  distort  competition  within  the  internal 
market in several Member States, or that existing aid measures in a particular sector or based 
on a particular aid instrument in several Member States are not, or no longer, compatible with 
the internal market, the Commission may conduct its inquiry into the sector of the economy or 
the use of the aid instrument concerned across various Member States. In the course of that 

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inquiry, the Commission may request the Member States, or the undertakings or associations 
of undertakings concerned to supply the necessary information for the application of Articles 
107 and 108 of the Treaty, taking due account of the principle of proportionality.  

The Commission may publish a report on the results of its inquiry into particular sectors of 
the  economy  or  particular  aid  instruments  across  various  Member  States  and  invite  the 
Member  States  and  any  undertakings  or  associations  of  undertakings  concerned  to  submit 
comments. 

2. Articles 5, 6a and 6b shall apply mutatis mutandis."; 

(11) The following Chapter VIIa is inserted after Article 23:  

" CHAPTER VIIA  

COOPERATION WITH NATIONAL COURTS 

Article23a 

Cooperation with national courts 

1.  For  the  application  of  Article  107(1)  and  Article  108  of  the  Treaty,  the  courts  of  the 
Member States may ask the Commission to transmit to them information in its possession or 
its opinion on questions concerning the application of State aid rules. 

2. Where the coherent application of Article 107(1) and Article 108 of the Treaty so requires, 
the Commission, acting on its own initiative, may submit written observations to courts of the 
Member  States.  With  the  permission  of  the  court  in  question,  it  may  also  make  oral 
observations. 

For the purpose of the preparation of its observations only, the Commission may request the 
relevant  court  of  the  Member  State  to  transmit  or  ensure  the  transmission  to  it  of  any 
documents necessary for the assessment of the case.";  

(12)  Article 25 is replaced by the following: 

"Article 25 

Addressee of decisions 

1. Decisions taken pursuant to Article 6a(4) and Article 6b(1) and (2) and Article 7(9) shall be 
addressed to the undertaking or association of undertakings concerned. The Commission shall 
notify them to the addressee without delay and give the addressee the opportunity to indicate 
to  the  Commission  which  information  it  considers  to  be  covered  by  the  obligation  of 
professional secrecy. 

2. All other decisions taken pursuant to Chapters II, III, IV, V and VII shall be addressed to 
the  Member  State  concerned.  The  Commission  shall  notify  them  to  the  Member  State 
concerned  without  delay  and  give  that  Member  State  the  opportunity  to  indicate  to  the 
Commission  which  information  it  considers  to  be  covered  by  the  obligation  of  professional 
secrecy."; 

(13) 

In Article 26, the following paragraph 2a is inserted : 

"2a.  The  Commission  shall  publish  in  the  Official  Journal  of  the  European  Union  the 
decisions which it takes pursuant to Article 6b(1) and (2)."; 

(14)  Article 27 is replaced by the following: 

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"Article 27 

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The Commission, acting in accordance with the procedure laid down in Article 29, shall have 
the power to adopt implementing provisions concerning: 

Implementing provisions 

(a) the form, content and other details of notifications,  

(b) the form, content and other details of annual reports, 

(c)  the  form,  content  and  other  details  of  complaints  submitted  in  accordance  with  Article 
10(1) and Article 20(2), 

(d) details of time-limits and the calculation of time-limits,  

(e) the interest rate referred to in Article 14(2)." 

Article 2 

This  Regulation  shall  enter  into  force  on  the  on  the  twentieth  day  following  that  of  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,  

For the Council 
The President 

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LEGISLATIVE FINANCIAL STATEMENT 

This proposal for an amendment has no impact on the EU budget.  

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