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

This Regulation applies to aid granted to undertakings active in the primary production of agricultural products, with the exception of:

1. aid the amount of which is fixed on the basis of the price or quantity of products put on the market;

2. aid to export-related activities towards third countries or Member States⁽¹⁾, namely aid directly linked to the quantities exported, to the establishment and operation of a distribution network or to other current expenditure linked to the export activity;

3. aid contingent upon the use of domestic over imported goods.

Where an undertaking is active in the primary production of agricultural products and is also active in one or more of the sectors or has other activities falling within the scope of Regulation (EU) No 1407/2013, that Regulation shall apply to aid granted in respect of the latter sectors or activities, provided that the Member State concerned ensures, by appropriate means such as separation of activities or distinction of costs, that the primary production of agricultural products does not benefit from de minimis aid granted in accordance with that Regulation.

Where an undertaking is active in the primary production of agricultural products as well as in the primary production of fishery and aquaculture products, Commission Regulation (EU) No 717/2014⁽²⁾ shall apply to aid granted in respect of the latter sector, provided that the Member State concerned ensures, by appropriate means such as separation of activities or distinction of costs, that the primary production of agricultural products does not benefit from de minimis aid granted in accordance with that Regulation.

For the purposes of this Regulation the following definitions apply:

1. “agricultural products” means products listed in Annex I to the Treaty, with the exception of fishery and aquaculture products covered by Regulation (EU) No 1379/2013 of the European Parliament and of the Council⁽³⁾;

2. “primary production of fishery and aquaculture products” means all operations relating to the fishing, rearing or cultivation of aquatic organisms, as well as on-farm or on-board activities necessary for preparing an animal or plant for the first sale, including cutting, filleting or freezing, and the first sale to resellers or processors.

‘Single undertaking’ includes, for the purposes of this Regulation, all enterprises having at least one of the following relationships with each other:

1. one enterprise has a majority of the shareholders’ or members’ voting rights in another enterprise;

2. one enterprise has the right to appoint or remove a majority of the members of the administrative, management or supervisory body of another enterprise;

3. one enterprise has the right to exercise a dominant influence over another enterprise pursuant to a contract entered into with that enterprise or to a provision in its memorandum or articles of association;

4. one enterprise, which is a shareholder in or member of another enterprise, controls alone, pursuant to an agreement with other shareholders in or members of that enterprise, a majority of shareholders’ or members’ voting rights in that enterprise.

Enterprises having any of the relationships referred to in points (a) to (d) of the first subparagraph through one or more other enterprises shall also be considered to be a single undertaking.

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

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.

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.

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.

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:

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

2. the Member State shall have in place a national central register in accordance with Article 6(2).

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.

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.

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.

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.

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.

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.

This Regulation shall apply only to aid in respect of which it is possible to calculate precisely the gross grant equivalent of the aid ex ante without any need to undertake a risk assessment (‘transparent aid’).

Aid comprised in grants or interest rate subsidies shall be considered as transparent de minimis aid.

Aid comprised in loans shall be considered as transparent de minimis aid if:

1. the beneficiary is not subject to collective insolvency proceedings nor fulfils the criteria under its domestic law for being placed in collective insolvency proceedings at the request of its creditors. In case of large undertakings, the beneficiary shall be in a situation comparable to a credit rating of at least B-; and

2. 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

3. the gross grant equivalent has been calculated on the basis of the reference rate applicable at the time of the grant.

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.

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.

Aid comprised in guarantees shall be treated as transparent de minimis aid if:

1. the beneficiary is not subject to collective insolvency proceedings nor fulfils the criteria under its domestic law for being placed in collective insolvency proceedings at the request of its creditors. In case of large undertakings, the beneficiary shall be in a situation comparable to a credit rating of at least B-; and

2. 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

3. the gross grant equivalent has been calculated on the basis of safe-harbour premiums laid down in a Commission notice; or

4. before implementation,

   1. the methodology used to calculate the gross grant equivalent of the guarantee has been notified to the Commission under another Commission Regulation in the State aid area applicable at that time and accepted by the Commission as being in line with the Guarantee Notice, or any successor Notice; and

   2. that methodology explicitly addresses the type of guarantee and the type of underlying transaction at stake in the context of the application of this Regulation.

Aid comprised in other instruments shall be considered as transparent de minimis aid if the instrument provides for a cap ensuring that the relevant ceiling is not exceeded.

Where an undertaking is active in the primary production of agricultural products and is also active in one or more of the sectors or has other activities falling within the scope of Regulation (EU) No 1407/2013, de minimis aid granted for activities in the sector of agricultural production in accordance with this Regulation may be cumulated with de minimis aid granted in respect of the latter sector(s) or activities up to the relevant ceiling laid down in Article 3(2) of Regulation (EU) No 1407/2013, provided that the Member State concerned ensures, by appropriate means such as separation of activities or distinction of costs, that the primary production of agricultural products does not benefit from de minimis aid granted in accordance with Regulation (EU) No 1407/2013.

Where an undertaking is active in the primary production of agricultural products as well as in the primary production of fishery and aquaculture products, de minimis aid granted for activities in the sector of agricultural production in accordance with this Regulation may be cumulated with de minimis aid for activities in the latter sector granted in accordance with Regulation (EU) No 717/2014 up to the relevant ceiling laid down in that Regulation, provided that the Member State concerned ensures, by appropriate means such as separation of activities or distinction of costs, that the primary production of agricultural products does not benefit from de minimis aid granted in accordance with Regulation (EU) No 717/2014.

De minimis aid shall not be cumulated with State aid in relation to the same eligible costs or with State aid for the same risk finance measure, if such cumulation would exceed the highest relevant aid intensity or aid amount fixed in the specific circumstances of each case by a block exemption regulation or a decision adopted by the Commission. De minimis aid which is not granted for or attributable to specific eligible costs may be cumulated with other State aid granted under a block exemption regulation or a decision adopted by the Commission.