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State aid: Commission consults on draft guidance on notion of aid

Commission Européenne - IP/14/30   17/01/2014

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European Commission

Press release

Brussels, 17 January 2014

State aid: Commission consults on draft guidance on notion of aid

The European Commission is inviting comments on a draft notice aimed at providing practical guidance for identifying state aid measures that need to be notified to the Commission for approval before being implemented, pursuant to Article 108 (3) of the Treaty on the functioning of the European Union (TFEU). In light of the submissions, the Commission aims to adopt the final guidance notice in the second quarter of 2014.

Whether a measure constitutes state aid or not is of pivotal importance for both Member States' administrations and judges as well as business, as it determines whether a measure is subject to the Commission's approval before it can be implemented.

In reply to frequent requests from stakeholders, the Commission has compiled a draft guidance notice explaining and illustrating the various elements constitutive of state aid in the meaning of EU state aid control:

  • The presence of an economic activity (notion of "undertaking");

  • The imputability of the measure to the State;

  • Financing through State resources;

  • The presence of an economic advantage for the beneficiary;

  • Selectivity and

  • Effect on trade and competition.

For example, the paper will help stakeholders to determine whether the sale of a public asset, a capital injection in a company or certain fiscal measures entail state aid that the Commission has to assess before the measures can be implemented, in order to verify that the measure does not unduly distort competition in the Single Market.

The notice has been drafted in a pragmatic way, in order to provide useful answers to national governments and courts, as well as other interested parties, rather than discussing theoretical questions.

Comments can be submitted until 14 March 2014.

The text of the draft notice is available at:

http://ec.europa.eu/competition/consultations/2014_state_aid_notion/index_en.html

Background

The notice on the notion of state aid is part of the Commission's State aid Modernisation (SAM) programme launched in May 2012 (see IP/12/458). Modernised state aid enforcement will contribute to sustainable, smart and inclusive growth, focus the Commission's enforcement activities on the cases with the biggest impact on the internal market as well as streamline and improve existing rules to provide faster and better informed decision making.

In providing guidance on the notion of state aid, the Commission is subject to legal constraints. Indeed, the notion of state aid is an objective legal concept defined by the TFEU, which can only be interpreted in a legally binding manner through the Court of Justice of the European Union. The Commission's role is thus limited to clarifying how it understands and applies the TFEU provisions in line with the case-law of the EU courts and without prejudice to the interpretation of these provisions by the Court of Justice. In this respect, the notice is thus – at least in part – a guide through the vast body of EU case-law and decisional practice in the field of state aid law. For those aspects of the notion of aid on which there is no or only limited practice, the Commission has limited its guidance to what can be inferred from its interpretation of existing case law.

Contacts :

Antoine Colombani (+32 2 297 45 13, Twitter: @ECspokesAntoine )

Marisa Gonzalez Iglesias (+32 2 295 19 25)

For the public: Europe Direct by phone 00 800 6 7 8 9 10 11 or by e­mail


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