Communication from the Commission — Approval of the content of a draft Commission Regulation amending Regulation (EU)No 1408/2013 on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid in the agriculture sector
Date: 2018-11-26
Institutions: Directorate-General for Agriculture and Rural Development, European Commission
Subjects: State aid, agricultural holding, agricultural production, aid to agriculture, aid to undertakings, control of State aid, eligibility criteria, farming sector, restriction on competition




C_2018425EN.01000201.xml










26.11.2018   


EN


Official Journal of the European Union


C 425/2






Communication from the Commission — Approval of the content of a draft Commission Regulation amending Regulation (EU)No 1408/2013 on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid in the agriculture sector
(2018/C 425/02)
On 23 November 2018, the Commission approved the content of a draft Commission Regulation amending Regulation (EU) No 1408/2013 on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid in the agriculture sector.
The draft Commission Regulation is attached as an Annex to this Communication.
The draft Regulation proposes to amend Regulation (EU) No 1408/2013 with a view to define the ceilings per aid beneficiary as well as per Member State up to which the granting of aid in the agriculture sector does not constitute State aid within the meaning of Article 107(1) of the Treaty on the Functioning of the European Union because it does not risk to distort competition.
Following a thorough analysis, the Commission has concluded that there is no risk of distortion of competition if the ceiling of aid that can be granted per aid beneficiary during any given period of three fiscal years is increased from currently EUR 15 000 to EUR 25 000, and the national ceiling applicable during the same period from currently 1 % to 1,5 % of the agricultural output of each Member State provided that no more than 50 % of the Member State’s ceiling is granted to one individual agricultural sector (‘sector spending cap’) and that the Member State runs a de minimis aid register that contains the necessary information to monitor the respect of these ceilings at any given moment of time.
However, the draft also provides for the possibility neither to introduce a sector spending cap nor a de minimis aid register. In order to ensure that in this case there is no risk of distortion of competition, the ceilings are fixed at EUR 20 000 per aid beneficiary during any given period of three fiscal years and to 1,25 % for the same period of the national agricultural output.




ANNEX


DRAFT COMMISSION REGULATION (EU) …/…
of …
amending Regulation (EU) No 1408/2013 on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid in the agriculture sector
THE EUROPEAN COMMISSION,
Having regard to the Treaty on the Functioning of the European Union, and in particular Article 108(4) thereof,
Having regard to Council Regulation (EU) 2015/1588 of 13 July 2015 on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to certain categories of horizontal State aid (1),
Having published a draft of this Regulation (2),
After consulting the Advisory Committee on State Aid,
Whereas:






(1)


State funding meeting the criteria in Article 107(1) of the Treaty on the Functioning of the European Union (‘the Treaty’) constitutes State aid and requires notification to the Commission pursuant to Article 108(3) of the Treaty. However, in accordance with Article 109 thereof, the Council may determine categories of aid that are exempted from this notification requirement. In accordance with Article 108(4) of the Treaty, the Commission may adopt regulations relating to those categories of State aid. Pursuant to Regulation (EU) 2015/1588 and in accordance with Article 109 of the Treaty, the Council decided that de minimis aid could constitute one such category. On that basis, de minimis aid, being aid granted to a single undertaking over a given period of time that does not exceed a certain fixed amount, is deemed not to meet all the criteria laid down in Article 107(1) of the Treaty and is therefore not subject to the notification procedure. However, Member States should be reminded that, even if de minimis aid is considered not to constitute State aid, such aid should not entail a breach of EU law.










(2)


The Commission has adopted a number of regulations establishing rules on de minimis aid granted in the agriculture sector, the latest of which was Commission Regulation (EU) No 1408/2013 (3).










(3)


In the light of the experience gained in applying Regulation (EU) No 1408/2013 and taking into account the variety of the use of de minimis aid in Member States, it is appropriate to adjust some of the conditions laid down therein. The maximum amount of aid to be granted to a single undertaking over a period of 3 years should be increased to EUR 20 000 and the national cap increased to 1,25 % of the annual output.










(4)


Taking into account the increased need to use de minimis aid in some Member States, it is appropriate to allow for a further increase both of the maximum aid amount per single undertaking to EUR 25 000 and of the national cap to 1,5 % of the annual output, subject to additional conditions necessary to safeguard the proper functioning of the internal market. The experience gained over the first years of application of Regulation (EU) No 1408/2013 has shown that the concentration of de minimis aid in a certain product sector could lead to a potential distortion of competition and trade. Therefore, the prerequisite for using the higher individual ceiling and national cap should be the application of a sector cap preventing Member States from granting more than 50 % of the total cumulative amount of de minimis aid over any period of 3 fiscal years for measures that benefit only one specific product sector. The sector cap should ensure that any measure falling under Regulation (EU) No 1408/2013 can be deemed not to have any effect on trade between Member States and not to distort or threaten to distort competition.










(5)


Presently, it is optional for Member States to use a national central register to verify that neither the de minimis individual ceiling, nor the national cap is exceeded. However, the use of a central register would become necessary in those Member States that opt for a higher individual ceiling and national cap, given that the sector cap which is a prerequisite for that option calls for an even closer monitoring of the aid granted. Therefore, for such Member States it should be mandatory to set up and maintain a central register in order to keep a record of all de minimis aid granted, so as to be able to verify that neither the individual ceiling, nor the national or sector cap, are exceeded.










(6)


The criteria for calculating the gross grant equivalent for loans and guarantees should be adjusted according to the increased de minimis ceilings.










(7)


It is necessary to allow Member States that opt to make use of the higher de minimis ceiling and national cap sufficient time for transition to set up their central registers for the monitoring of de minimis aid.










(8)


Regulation (EU) No 1408/2013 expires on 31 December 2020. The time span would therefore be very short between the entry into force of this Regulation and the end of the period of application of Regulation (EU) No 1408/2013. For reasons of procedural economy and legal certainty, the period of application of Regulation (EU) No 1408/2013 should therefore be extended until 31 December 2027.










(9)


Regulation (EU) No 1408/2013 should therefore be amended accordingly,




HAS ADOPTED THIS REGULATION:

Article 1
Regulation (EU) No 1408/2013 is amended as follows:






(1)


in Article 2, the following paragraphs are added:

‘3.   For the purposes of this Regulation, “product sector” means a sector listed in Article 1(2) of Regulation (EU) No 1308/2013 of the European Parliament and of the Council (*1).


4.   For the purposes of this Regulation, “sector cap” means a maximum cumulative aid amount applying to aid measures which benefit only one single product sector, which corresponds to 50 % of the maximum amount of de minimis aid granted per Member State set out in Annex II.’;


(*1)  Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007 (OJ L 347, 20.12.2013, p. 671)."
                        










(2)


Article 3 is replaced by the following:

‘Article 3
De minimis aid

1.   Aid measures shall be deemed not to meet all the criteria in Article 107(1) of the Treaty, and shall therefore be exempt from the notification requirement in Article 108(3) of the Treaty, if they fulfil the conditions laid down in this Regulation.


2.   The total amount of de minimis aid granted per Member State to a single undertaking shall not exceed EUR 20 000 over any period of 3 fiscal years.


3.   The cumulative amount of de minimis aid granted per Member State to undertakings active in the primary production of agricultural products over any period of 3 fiscal years shall not exceed the national cap set out in Annex I.


3a.   By way of derogation from paragraphs 2 and 3, a Member State may decide that the total amount of de minimis aid granted to a single undertaking shall not exceed EUR 25 000 over any period of 3 fiscal years and that the total cumulative amount of de minimis aid granted over any period of 3 fiscal years shall not exceed the national cap set out in Annex II, subject to the following conditions:






(a)


for aid measures which benefit only one single product sector, the total cumulative amount granted over any period of 3 fiscal years may not exceed the sector cap defined in Article 2(4);










(b)


the Member State shall set up a national central register in accordance with the provisions laid down in Article 6(2).






4.   De minimis aid shall be deemed granted at the moment the legal right to receive the aid is conferred on the undertaking under the applicable national legal regime, irrespective of the date of payment of the de minimis aid to the undertaking.


5.   The de minimis ceilings and the national and sector caps referred to in paragraphs 2, 3 and 3a shall apply irrespective of the form of the de minimis aid or the objective pursued and regardless of whether the aid granted by the Member State is financed entirely or partly by resources of Union origin. The period of 3 fiscal years shall be determined by reference to the fiscal years used by the undertaking in the Member State concerned.


6.   For the purposes of the de minimis ceilings and the national and sector caps referred to in paragraphs 2, 3 and 3a, aid shall be expressed as a cash grant. All figures used shall be gross, that is, before any deduction of tax or other charge. Where aid is granted in a form other than a grant, the aid amount shall be the gross grant equivalent of the aid.
Aid payable in several instalments shall be discounted to its value at the moment it is granted. The interest rate to be used for discounting purposes shall be the discount rate applicable at the time the aid is granted.


7.   Where the de minimis ceilings, the national caps or the sector cap referred to in paragraphs 2, 3 and 3a would be exceeded by the grant of new de minimis aid, none of that new aid may benefit from this Regulation.


8.   In the case of mergers or acquisitions, all prior de minimis aid granted to any of the merging undertakings shall be taken into account in determining whether any new de minimis aid to the new or the acquiring undertaking exceeds the relevant de minimis ceilings, the relevant national cap or the sector cap. De minimis aid lawfully granted before the merger or acquisition shall remain lawful.


9.   If one undertaking splits into two or more separate undertakings, de minimis aid granted prior to the split shall be allocated to the undertaking that benefited from it, which is in principle the undertaking taking over the activities for which the de minimis aid was used. If such an allocation is not possible, the de minimis aid shall be allocated proportionately on the basis of the book value of the equity capital of the new undertakings at the effective date of the split.’;












(3)


Article 4 is amended as follows:






(a)


in paragraph 3, point (b) is replaced by the following:






‘(b)


for measures falling under Article 3(2), the loan is secured by collateral covering at least 50 % of the loan and the loan amounts to either EUR 100 000 over 5 years or EUR 50 000 over 10 years, or, for measures falling under Article 3(3a), to either EUR 125 000 over 5 years or EUR 62 500 over 10 years; if a loan is for less than those amounts and/or if it is granted for a period of less than 5 or 10 years respectively, the gross grant equivalent of that loan shall be calculated as a corresponding proportion of the de minimis ceilings laid down in Article 3(2) or (3a); or’;














(b)


in paragraph 6, point (b) is replaced by the following:






‘(b)


for measures falling under Article 3(2), the guarantee does not exceed 80 % of the underlying loan and either the amount guaranteed is EUR 150 000 and the duration of the guarantee is 5 years or the amount guaranteed is EUR 75 000 and the duration of the guarantee is 10 years, or, for measures falling under Article 3(3a), the guarantee does not exceed 80 % of the underlying loan and either the amount guaranteed is EUR 187 500 and the duration of the guarantee is 5 years or the amount guaranteed is EUR 93 750 and the duration of the guarantee is 10 years; if the amount guaranteed is lower than these amounts and/or if the guarantee is for a period of less than 5 or 10 years respectively, the gross grant equivalent of that guarantee shall be calculated as a corresponding proportion of the de minimis ceilings laid down in Article 3(2) or (3a); or’;














(c)


paragraph 4 is replaced by the following:

‘4.   Aid comprised in capital injections shall only be considered as transparent de minimis aid if the total amount of the public injection does not exceed the relevant de minimis ceiling.’;











(d)


paragraph 5 is replaced by the following:

‘5.   Aid comprised in risk finance measures taking the form of equity or quasi-equity investments shall only be considered as transparent de minimis aid if the capital provided to a single undertaking does not exceed the relevant de minimis ceiling.’;















(4)


Article 6 is amended as follows:






(a)


in paragraph 2 the following subparagraph is added:
‘By 1 July 2022, Member States granting aid in accordance with Article 3(3a) shall set up a central register of de minimis aid containing complete information on all de minimis aid granted by any authority within that Member State. The provisions of paragraph 1 shall cease to apply from the moment the register covers a period of 3 fiscal years.’;










(b)


paragraph 3 is replaced by the following:

‘3.   A Member State shall grant new de minimis aid in accordance with this Regulation only after having checked that this will not raise the total amount of de minimis aid granted to the undertaking concerned to a level above the relevant ceilings and national caps and the sector cap referred to in Article 3(2), (3) and (3a) and that all the conditions laid down in this Regulation are complied with.’;















(5)


Article 7 is amended as follows:






(a)


paragraph 1 is replaced by the following:

‘1.   This Regulation shall apply to aid granted before its entry into force if the aid fulfils all the conditions laid down in this Regulation, with the exception of the sector cap referred to in Article 3(3a). Any aid which does not fulfil those conditions will be assessed by the Commission in accordance with the relevant frameworks, guidelines, communications and notices.’











(b)


the following paragraph 1a is inserted:

‘1a.   The sector cap referred to in Article 3(3a) shall apply only to aid granted from [1 January 2019].’;















(6)


in Article 8, the second paragraph is replaced by the following:
‘It shall apply until 31 December 2027.’;










(7)


the Annex is replaced by the text set out in the Annex to this Regulation.






Article 2
This Regulation shall enter into force 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 Commission


The President

Jean-Claude JUNCKER






Annex I
Maximum cumulative amounts of de minimis aid granted per Member State to undertakings active in the primary production of agricultural products referred to in Article 3(3)






(EUR)




Member State


Maximum amounts of de minimis aid




Belgium


100 251 042 




Bulgaria


48 940 583 




Czech Republic


60 282 125 




Denmark


129 767 292 




Germany


687 676 542 




Estonia


10 630 167 




Ireland


92 612 083 




Greece


129 441 708 




Spain


565 246 333 




France


906 389 083 




Croatia


25 705 125 




Italy


679 716 500 




Cyprus


8 469 042 




Latvia


16 122 833 




Lithuania


32 505 583 




Luxembourg


5 328 250 




Hungary


97 979 375 




Malta


1 581 667 




Netherlands


337 799 500 




Austria


85 697 833 




Poland


276 092 750 




Portugal


84 801 750 




Romania


198 666 208 




Slovenia


15 523 667 




Slovakia


28 760 708 




Finland


50 912 375 




Sweden


75 125 875 




United Kingdom


385 044 042 








Annex II
Maximum cumulative amounts of de minimis aid granted per Member State to undertakings active in the primary production of agricultural products referred to in Article 3(3a)






(EUR)




Member State


Maximum amounts of de minimis aid




Belgium


120 301 250 




Bulgaria


58 728 700 




Czech Republic


120 301 250 




Denmark


58 728 700 




Germany


825 211 850 




Estonia


12 756 200 




Ireland


111 134 500 




Greece


155 330 050 




Spain


678 295 600 




France


1 087 666 900 




Croatia


30 846 150 




Italy


815 659 800 




Cyprus


10 162 850 




Latvia


19 347 400 




Lithuania


39 006 700 




Luxembourg


6 393 900 




Hungary


117 575 250 




Malta


1 898 000 




Netherlands


405 359 400 




Austria


102 837 400 




Poland


331 311 300 




Portugal


101 762 100 




Romania


238 399 450 




Slovenia


18 628 400 




Slovakia


34 512 850 




Finland


61 094 850 




Sweden


90 151 050 




United Kingdom


462 052 850 








(1)  OJ L 248, 24.9.2015, p. 1.

(2)  OJ […], […], p. […].

(3)  Commission Regulation (EU) No 1408/2013 of 18 December 2013 on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid in the agriculture sector (OJ L 352, 24.12.2013, p. 9).