EN
16.6.2022
28.
Official Journal of the European Union
L 161/93
Risk finance aid will not be considered compatible with the internal market under these Guidelines if awarded to: (a) undertakings in difficulty, as defined by the Guidelines on State aid for rescuing and restructuring nonfinancial undertakings in difficulty (37); however, for the purposes of these Guidelines, SMEs that have been operating in any market for no longer than the eligibility period fixed in Article 21 of the General Block Exemption Regulation that qualify for risk finance investments following due diligence by the selected financial intermediary will not be considered as undertakings in difficulty, unless they are subject to insolvency proceedings or fulfil the criteria under their domestic law for being placed in collective insolvency proceedings at the request of their creditors; (b) undertakings which are subject to an outstanding recovery order following a previous Commission decision declaring an aid granted by the same Member State illegal and incompatible with the internal market.
29.
The Commission will not apply the principles in these Guidelines to aid to export-related activities towards third countries or Member States, namely aid directly linked to the quantities exported, to the establishment and operation of a distribution network or to other current costs linked to the export activity, as well as aid contingent upon the use of domestic over imported goods.
30.
Risk finance measures often involve complex constructions creating incentives for one set of economic operators (investors) to provide risk finance to another set of operators (eligible undertakings).
Depending on the design of the measure, and even if the intention of the public authorities may be only to provide benefits to the latter group, undertakings at either or both levels may benefit from State aid.
Moreover, risk finance measures usually involve one or more financial intermediaries which may have a status separate from that of the investors and the final beneficiaries in which investments are made.
In such cases it is also necessary to reflect on whether the financial intermediary can be considered to benefit from State aid.
Any aid to the financial intermediary should be limited by passing on the advantage to the final beneficiaries as set out in these Guidelines.
The fact that financial intermediaries may increase their assets and their managers may achieve a higher turnover through their commissions is considered to constitute only a secondary economic effect of the aid measure and not an advantage procured by the aid to the financial intermediaries or managers.
However, if the risk finance measure is designed in such a way as to channel its secondary effects towards identifiable financial intermediaries or towards identifiable groups of financial intermediaries, those financial intermediaries will be considered to benefit from an indirect advantage.
2.2.
Notifiable risk finance aid
31.
Member States must notify, pursuant to Article 108(3) of the Treaty, risk finance measures which: (i) constitute State aid within the meaning of Article 107(1) of the Treaty (in particular measures that do not comply with the market economy operator test (38) and fall outside the scope of the de minimis Regulations (39)), and (ii) do not satisfy all the conditions laid down in Section 3 of the General Block Exemption Regulation (‘Aid for access to finance for SMEs’).
The Commission will assess the compatibility of those measures with the internal market under Article 107(3), point (c), of the Treaty.
These Guidelines focus on those risk finance measures which are most likely to be found compatible under Article 107(3), point (c), of the Treaty, subject to a number of conditions which will be explained in greater detail in Section 3 of these Guidelines.
Such measures fall into one of two categories.
32.
The first category covers risk finance measures which target undertakings that do not fulfil all the eligibility requirements for risk finance aid as laid down in Section 3 of the General Block Exemption Regulation.
That category encompasses, in particular, measures targeting the following undertakings: (a) small mid-caps; (b) innovative mid-caps; (c) SMEs receiving the initial risk finance investment while they have been operating in any market for longer than the eligibility period fixed in Article 21 of the General Block Exemption Regulation;
(37) 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).
(38) See footnote 34.
(39) See footnote 36.