European Parliament legislative resolution of 2 July 2013 on the 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 (COM(2012)0725 — C7-0004/2013 — 2012/0342(NLE))
Date: 2013-07-02
Institutions: Committee on Economic and Monetary Affairs, Committee on Industry, Research and Energy, Committee on Legal Affairs, Committee on the Internal Market and Consumer Protection, European Parliament
Subjects: EU aid, State aid, control of State aid, infringement procedure (EU), reimbursement of aid, suspension of aid, terms for aid








C_2016075EN.01017203.xml










26.2.2016   


EN


Official Journal of the European Union


C 75/172





P7_TA(2013)0289
Application of Article 93 of the EC Treaty *
European Parliament legislative resolution of 2 July 2013 on the 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 (COM(2012)0725 — C7-0004/2013 — 2012/0342(NLE))
(Consultation)
(2016/C 075/30)

The European Parliament,






—


having regard to the Commission proposal to the Council (COM(2012)0725),










—


having regard to its resolution of 17 January 2013 on state aid modernisation (1),










—


having regard to Article 109 of the Treaty on the Functioning of the European Union, pursuant to which the Council consulted Parliament (C7-0004/2013),










—


having regard to Rule 55 of its Rules of Procedure,










—


having regard to the report of the Committee on Economic and Monetary Affairs (A7-0180/2013),










1.


Approves the Commission proposal as amended;










2.


Calls on the Commission to alter its proposal accordingly, in accordance with Article 293(2) of the Treaty on the Functioning of the European Union;










3.


Calls on the Council to notify Parliament if it intends to depart from the text approved by Parliament;










4.


Asks the Council to consult Parliament again if it intends to substantially amend the Commission proposal;










5.


Instructs its President to forward its position to the Council and the Commission.





Amendment 1


Proposal for a regulation


Recital 1








Text proposed by the Commission




Amendment











(1)


In the context of a thorough modernization of State aid rules to contribute both to the implementation of the Europe 2020 strategy for growth 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.












(1)


In the context of a thorough modernization of State aid rules to contribute both to the implementation of the Europe 2020 strategy for growth 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 
equip
 the Commission 
with streamlined and
 more effective 
State aid control and enforcement instruments
.









Amendment 2


Proposal for a regulation


Recital 1 a (new)








Text proposed by the Commission




Amendment





 










(1a)






It is important that the Commission focus its attention on State aid cases with the potential to distort competition within the internal market. That aim is consistent with the Commission's communication of 8 May 2012 on EU State Aid Modernisation (SAM) and was endorsed by the European Parliament in its resolution of 17 January 2013 on state aid modernisation. It follows that the Commission should abstain from involvement in measures which concern smaller undertakings and which produce purely local effects, in particular where the main aim of those measures is to fulfil social objectives which do not distort the internal market. The Commission should therefore be able to decline to examine such cases, and, in particular, complaints brought to its attention, even where persistent complainants respond to every invitation to submit comments. The Commission should however look into cases brought to its attention by multiple complainants and be very careful not to exempt too many activities from State aid scrutiny.











Amendment 3


Proposal for a regulation


Recital 1 b (new)








Text proposed by the Commission




Amendment





 










(1b)






Currently there are differing interpretations across Member States of services where there is no true economic interest and where there is a perceived lack of market driven supply or demand. Such services should not fall under the State aid rules. The unclear situation has created problems, especially for the ‘third sector’ in which non-profit service providers are unnecessarily deprived of aid provided by the State in anticipation of a possible complaint. The Commission should, in the context of modernising the State aid rules, invite the Member States to assess, through a ‘market test’, whether there is true market demand or supply for particular services, and assist them in doing so. This should also be taken into account when the Commission assesses the validity of a particular complaint.











Amendment 4


Proposal for a regulation


Recital 1 c (new)








Text proposed by the Commission




Amendment





 










(1c)






The legal basis for this Regulation, Article 109 TFEU, provides only for consultation of the European Parliament, not for codecision in line with other areas of market integration and economic regulation further to the entry into force of the Lisbon Treaty. This democratic deficit cannot be tolerated in respect of proposals that concern the means of oversight by the Commission of decisions and acts by national and local elected authorities, in particular as regards services of general economic interest related to fundamental rights. This deficit should be corrected in any future Treaty change. The Commission’s Communication of 28 November 2012 entitled ‘A blueprint for a deep and genuine economic and monetary union’ foresees proposals for a Treaty change by 2014. Such a proposal should include a specific proposal amending Article 109 TFEU in order to adopt the regulations referred to in that Article in accordance with the ordinary legislative procedure.











Amendment 5


Proposal for a regulation


Recital 3








Text proposed by the Commission




Amendment











(3)


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.












(3)


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. 
Such powers already exist for the enforcement of antitrust law and it is anomalous that they do not exist for the enforcement of State aid law, given that State aid can be equally distortive to the internal market as infringements of Articles 101 or 102 of the Treaty.











Amendment 6


Proposal for a regulation


Recital 3 a (new)








Text proposed by the Commission




Amendment





 










(3a)






In its Resolution of 17 January 2013 on state aid modernisation, the European Parliament has already expressed its support for the information to be gathered by the Commission directly from market participants, if the information at its disposal is not sufficient.











Amendment 7


Proposal for a regulation


Recital 3 b (new)








Text proposed by the Commission




Amendment





 










(3b)






In order to balance these new investigating powers, the Commission should be accountable to the European Parliament. The Commission should inform the European Parliament on a regular basis about ongoing investigation procedures.











Amendment 8


Proposal for a regulation


Recital 4








Text proposed by the Commission




Amendment











(4)


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.












(4)


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. 
When assessing the level of such penalties, the Commission should distinguish between actors depending on their role in, and link to, the case. Lower penalties should apply to the parties that the Commission itself brings into the case through its request for information as those third parties are not linked to the investigation the same way as the alleged beneficiary and the party lodging the complaint. In addition, the Commission should take due account of the specific circumstances of each case and the compliance costs incurred by each addressee as well as the principle of proportionality, in particular as regards to small or medium-sized enterprises.
 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.









Amendment 9


Proposal for a regulation


Recital 9








Text proposed by the Commission




Amendment











(9)


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.












(9)


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. 
It is therefore important not to impose too many or too formal restrictions on the filing of complaints. In particular, individual citizens should retain the right to file complaints through an easily accessible and user-friendly procedure.











Amendment 10


Proposal for a regulation


Recital 9 a (new)








Text proposed by the Commission




Amendment





 










(9a)






Member States should have an incentive to notify State aid measures and they should not be penalised unduly if the Commission takes excessive time to examine notified State aid. Therefore, if a decision by the Commission is not received within six months of notification, any future recovery decision concerning that aid should demonstrate that the notification was incomplete and that the Member State did not respond adequately to information requests.











Amendment 11


Proposal for a regulation


Recital 11








Text proposed by the Commission




Amendment











(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 (EC) No 659/1999. 
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.












(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 (EC) No 659/1999. 
However, too narrow an interpretation of the term ‘interested party’
 should 
be avoided. All complainants should
 be required to provide a certain 
minimum
 amount of information in 
an easily accessible and user-friendly
 form that the Commission should be empowered to define in an implementing provision. 
Where complainants fail to submit comments or provide information indicating the existence of unlawful aid or the misuse of aid with the potential to distort competition within the internal market, the Commission should be able to deem the complaint withdrawn.











Amendment 12


Proposal for a regulation


Recital 11 a (new)








Text proposed by the Commission




Amendment





 










(11a)






The Commission should consider investigating third party complaints where a sufficient body of evidence is given to show a distortion to competition within the internal market.











Amendment 13


Proposal for a regulation


Recital 13








Text proposed by the Commission




Amendment











(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.












(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
. Given that, through direct links to their constituencies, Members of the European Parliament can also be alerted to possible divergences of State aid practices within a given sector, the European Parliament should also be given the power to request the Commission look into this sector. In these cases, to keep the European Parliament informed on investigations, the Commission shall send interim reports to the European Parliament detailing the progress of those investigations.
 Such inquiries would enable the Commission to deal in an efficient and transparent way with horizontal State aid issues.









Amendment 14


Proposal for a regulation


Recital 14








Text proposed by the Commission




Amendment











(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.












(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 
non-binding
 observations should be submitted within the framework of national procedural rules and practices including those safeguarding the rights of the parties.









Amendment 15


Proposal for a regulation


Article 1 — point 2

Regulation (EC) No 659/1999
Article 6 a — paragraph 1







Text proposed by the Commission




Amendment





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.


1.   After the initiation of the formal investigation procedure provided for in Article 6, the Commission may, if it considers it to be relevant 
and proportional
, 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.





Amendment 16


Proposal for a regulation


Article 1 — point 2

Regulation (EC) No 659/1999
Article 6 a — paragraph 5







Text proposed by the Commission




Amendment





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


5.   
When sending requests,
 the Commission shall 
simultaneously provide
 the Member State concerned 
with a copy
 of requests for information sent pursuant to paragraphs 1 to 4.




 




The Commission shall also, within one month of receipt, provide the Member State concerned with copies of all the documents it receives pursuant to the request for information, to the extent the information does not include confidential information which cannot be aggregated or otherwise adapted to protect the identity of the informant. The Commission shall give the Member State concerned an opportunity to make observations on those documents within one month of receipt.







Amendment 17


Proposal for a regulation


Article 1 — point 2

Regulation (EC) No 659/1999
Article 6b — paragraph 1 — point (a)







Text proposed by the Commission




Amendment











(a)


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












(a)


they supply incorrect
, incomplete
 or misleading information
, or intentionally omit relevant information,
 in response to a request made pursuant to Article 6a(3);









Amendment 18


Proposal for a regulation


Article 1 — point 2

Regulation (EC) No 659/1999
Article 6 b — paragraph 1 — point (b)







Text proposed by the Commission




Amendment











(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.












(b)


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









Amendment 19


Proposal for a regulation


Article 1 — point 2

Regulation (EC) No 659/1999
Article 6 b — paragraph 3







Text proposed by the Commission




Amendment





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.


3.   In fixing the amount of the fine or periodic penalty payment, regard shall be had:




 










(a)




to the nature, gravity and duration of the infringement;












(b)






to whether the undertaking or an association of undertakings can be considered to be an interested party or a third party in the investigation;














(c)






to the principle of proportionality, in particular as regards small and medium-sized enterprises;











Amendment 20


Proposal for a regulation


Article 1 — point 4

Regulation (EC) No 659/1999
Article 10 — paragraph 1 — subparagraph 2







Text proposed by the Commission




Amendment





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


The Commission shall examine without undue delay any complaint submitted by any interested party in accordance with Article 20(2). 
The Commission shall consider examining a complaint submitted by a third party where there is sufficient evidence given to show a distortion to competition within the internal market by allegedly unlawful aid or an alleged misuse of aid.







Amendment 21


Proposal for a regulation


Article 1 — point 4 a (new)

Regulation (EC) No 659/1999
Article 14 — paragraph 1a (new)







Text proposed by the Commission




Amendment





 




(4a)
   
In Article 14 the following paragraph is inserted:






 





‘1a.
   
Where unlawful aid was previously notified to the Commission and was put into effect more than six months following that notification without the Commission having taken any decision pursuant to Article 4 in that time, the Commission shall demonstrate in any decision under paragraph 1 of this Article that the notification was incomplete and that the Member State did not provide all necessary information requested by the Commission in due time.’








Amendment 22


Proposal for a regulation


Article 1 — point 9

Regulation (EC) No 659/1999
Article 20 — paragraph 2 — subparagraph 1







Text proposed by the Commission




Amendment





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.


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. 
The Commission shall consider investigating when presented with sufficient evidence by a third party of allegedly unlawful aid or of alleged misuse of aid.







Amendment 23


Proposal for a regulation


Article 1 — point 9

Regulation (EC) No 659/1999
Article 20 — paragraph 2 — subparagraph 2







Text proposed by the Commission




Amendment







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.




Notwithstanding Article 13, 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, 
with a potential to distort competition within the internal market,
 it shall inform the interested party thereof and call upon it to submit comments
. Those comments shall be submitted
 within a prescribed period normally 
not exceeding
 one month
, unless justified on the basis of proportionality and by the amount or complexity of the information required to argue the case
. If the interested party fails to make known its views within the prescribed period, 
or to provide further information which would indicate the existence of unlawful aid or misuse of aid with a potential to distort competition within the internal market,
 the complaint shall be deemed to have been withdrawn.





Amendment 24


Proposal for a regulation


Article 1 — point 10

Regulation (EC) No 659/1999
Article 20a — paragraph 1 — subparagraph 1







Text proposed by the Commission




Amendment





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 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.


1.   Where the information available 
to the Commission
 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, 
or after a request by the European Parliament based on similar information,
 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 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.





Amendment 25


Proposal for a regulation


Article 1 — point 10

Regulation (EC) No 659/1999
Article 20 a — paragraph 1 — subparagraph 2







Text proposed by the Commission




Amendment





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.


The Commission 
shall
 publish a report on 
its website 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. 
Where the European Parliament requests an inquiry, the Commission shall submit an interim report to the European Parliament. The Commission, when publishing its reports, shall comply with the rules on professional secrecy, in accordance with Article 339 of the Treaty.







Amendment 26


Proposal for a regulation


Article 1 — point 11

Regulation (EC) No 659/1999
Article 23 a — paragraph 2 — subparagraph 1







Text proposed by the Commission




Amendment





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.


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. 
The observations submitted by the Commission to the courts of Member States shall be non-binding. The Commission may act under this provision only in the Union's public interest (as amicus curiae) and not in support of one of the parties.








(1)  Texts adopted, P7_TA(2013)0026.