9.11.2022
EN
Official Journal of the European Union
C 426/9
(31) In specific circumstances (37), Member States may consider that undertakings severely affected by the current crisis require solvency support that cannot be sufficiently provided via private sources alone.
Where undertakings would cease or downsize operations without such solvency support and when ceasing or downsizing operations would threaten energy markets or other markets which are of systemic importance for the economy (or for the security and resilience of the internal market), such solvency support might be considered compatible based on Article 107(3)(b) TFEU.
(32) The Commission considers the following general principles as particularly relevant in the required case-by-case assessment: (a) the aid must be necessary, appropriate and proportionate (38) to avoid a sudden exit from the market of such undertakings and must in any case not exceed the minimum needed to ensure its viability; (b) a company belonging to or being taken over by a larger business group is not eligible for aid, except where it can be demonstrated that the company’s difficulties are not the result of an arbitrary allocation of costs within the group, and that the difficulties are too serious to be dealt with by the group itself.
In such cases, a substantial contribution by the group to the costs of the solvency measure will typically be required; (c) state aid must be granted on terms that afford the State a reasonable remuneration such as an appropriate share of future gains in value of the beneficiary, in view of the amount of State equity injected in comparison with the remaining equity of the company after losses, including foreseeable losses without the aid measure, have been accounted for; (d) where aid takes the form of subordinated debt or other hybrid capital instruments, the overall remuneration of such instruments must adequately factor in the characteristics of the instrument chosen, including its level of subordination and all modalities of payment; (e) appropriate competition measures in line with the principles set out in the 2014 Rescue and Restructuring Guidelines (39) will be necessary.
Based on the specificities of each potential case and the relevant competitive landscape, divestments of assets may also be required as a compensatory measure.
Furthermore, behavioural measures, including commitments ensuring an effective ban on bonus payments or other variable payments, dividend payments, and acquisitions will be required; (f) for each beneficiary, Member States must undertake a long-term viability assessment and, where considered appropriate by the Commission, notify to the Commission for approval a restructuring plan in accordance with the Rescue and Restructuring Guidelines within a specified period of time.
(33) Member States are invited to consider, in a non-discriminatory way, setting requirements related to environmental protection or security of supply for granting aid under section 2.4 of this Communication.
This could, for example, take the following forms (40): (a) Requiring the beneficiary to meet a certain share of energy consumption needs by renewable energies, e.g. via power purchasing agreements or direct investments in energy generation from renewable energies; (b) Requiring investments in energy efficiency, reducing the energy consumption relative to economic output, e.g. by reduced consumption for production processes, heating or transportation, in particular through measures implementing recommendations from energy audits carried out pursuant to Article 8 (2) or (4) and Annex VI of Directive 2012/27/EU; (37) Intervention needs to be limited to situations where it is in the common interest to intervene.
(38) In principle, aid is proportionate if it does not go beyond restoring the capital structure of the beneficiary to the one predating the crisis caused by the aggression of Ukraine by Russia.
In assessing the proportionality of the aid, State aid received or planned in the context of the current crisis, and in particular aid provided under this Communication will be taken into account.
(39) Communication from the Commission – Guidelines on State aid for rescuing and restructuring non-financial undertakings in difficulty (OJ C 249, 31.7.2014, p. 1).
(40) Member States are invited to make use of the possibilities for granting aid approved under the Guidelines on State aid for climate-, environmental protection and energy (CEEAG 2022), notably as regards renewable energies, energy efficiency or other decarbonisation measures.