Commission Regulation (EU) 2023/2832 of 13 December 2023 on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid granted to undertakings providing services of general economic interest

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⁾, and in particular Article 2(1) thereof,

After consulting the Advisory Committee on State aid,

Whereas:

1. State funding that meets the criteria set out in Article 107(1) of the Treaty on the Functioning of the European Union constitutes State aid and requires notification to the Commission pursuant to Article 108(3) of the Treaty. However, pursuant to Article 109 of the Treaty, the Council may determine categories of aid that are exempted from that notification requirement. In accordance with Article 108(4) of the Treaty, the Commission may adopt regulations relating to those categories of State aid. In Regulation (EU) 2015/1588, the Council decided, in accordance with Article 109 of the Treaty, that de minimis aid (that is to say, aid granted to the same undertaking over a specific period of time that does not exceed a certain fixed amount) could constitute one such category. On that basis, de minimis aid 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.

2. The Commission has, in numerous decisions, clarified the notion of aid within the meaning of Article 107(1) of the Treaty. The Commission has also stated its policy on a de minimis ceiling below which Article 107(1) of the Treaty may be considered not to apply.

3. The Commission’s experience in applying the State aid rules to undertakings that provide services of general economic interest within the meaning of Article 106(2) of the Treaty has shown that the ceiling below which advantages granted to such undertakings may be deemed not to affect trade between Member States or not to distort or threaten to distort competition can, in some cases, differ from the general de minimis ceiling established in Commission Regulation (EU) 2023/2831⁽²⁾. Indeed, at least some of those advantages are likely to constitute compensation for additional costs linked to the provision of services of general economic interest. Moreover, many activities that qualify as services of general economic interest have a limited territorial scope. Pursuant to Article 2(2) of Commission Regulation (EU) No 360/2012⁽³⁾, aid granted to undertakings that provide a service of general economic interest should be deemed not to affect trade between Member States or not to distort or threaten to distort competition provided that the total amount of aid granted for the provision of services of general economic interest received does not exceed EUR 500 000 over any period of 3 fiscal years.

4. In light of the experience gained in applying Regulation (EU) No 360/2012, it is appropriate to adjust the de minimis rules for aid for services of general economic interest to reflect some of the adjustments applied to the general de minimis Regulation (EU) 2023/2831, in order to ensure consistency, taking at the same time into account the specific characteristics of services of general economic interest.

5. It is also appropriate to increase the ceiling of de minimis aid for services of general economic interest that a single undertaking may receive per Member State over any period of 3 years to EUR 750 000. That ceiling reflects the inflation that took place since the entry into force of Regulation (EU) No 360/2012 and the estimated developments during the period of validity of this Regulation. That ceiling is necessary to ensure that any measure falling under this Regulation may be deemed not to have any effect on trade between Member States and not to distort or threaten to distort competition.

6. State aid granted by a Member State should be taken into account even when financed entirely or partly by resources of Union origin under the control of that Member State. It should not be possible for aid measures exceeding the de minimis ceiling to be broken down into smaller parts in order to bring such parts within the scope of this Regulation.

7. For the purposes of the rules on competition laid down in the Treaty, an undertaking is any entity, be it a natural or a legal person, engaged in an economic activity, regardless of its legal status and the way in which it is financed⁽⁴⁾. The Court of Justice of the European Union has clarified that an entity ‘owning controlling shareholdings in a company’ and which ‘actually exercises that control by involving itself directly or indirectly in the management thereof’ must be considered as taking part in the economic activity of that company. The entity itself must therefore be regarded as an undertaking within the meaning of Article 107(1) of the Treaty⁽⁵⁾. The Court of Justice has ruled that all entities that are controlled (on a legal or on a de facto basis) by the same entity are to be considered as a single undertaking⁽⁶⁾.

8. For the sake of legal certainty, and in order to reduce administrative burden, this Regulation should provide a clear and exhaustive list of criteria for determining when two or more enterprises in the same Member State should be considered as a single undertaking. The Commission has selected criteria that are appropriate for the purposes of this Regulation from the well-established criteria for defining ‘linked enterprises’ as part of the definition of small or medium-sized enterprises (SMEs) in Commission Recommendation 2003/361/EC⁽⁷⁾ and in Annex I to Commission Regulation (EU) No 651/2014⁽⁸⁾. The criteria should be applicable, given the scope of this Regulation, to both SMEs and large undertakings and should ensure that a group of linked enterprises is considered as one single undertaking for the application of the de minimis rule. However, as recognised by Article 14 of the Treaty, services of general economic interest occupy a special place in the shared values of the Union and have a particular role in promoting social and territorial cohesion. Services of general economic interest should meet the needs of users as fully as possible and Member States should be able to cater for those needs in the most appropriate way taking into consideration the specificity of each Member State as regards in particular the provision of social services. For this reason, enterprises performing services of general economic interest that have no relationship with each other, except for the fact that each of them has a direct link to the same public body or bodies, or to the same non-profit entity or entities, should not be treated as being linked to each other. The specific situation of enterprises controlled by the same public body or bodies, or by the same non-profit entity or entities, in which the enterprises may have independent power of decision, should therefore be taken into account.

9. This Regulation should apply only to aid granted for the provision of a service of general economic interest. The beneficiary undertaking should therefore be entrusted in writing or in electronic form with the service of general economic interest in respect of which the aid is granted. While the entrustment act should inform the undertaking of the service of general economic interest in respect of which the aid is granted, it need not necessarily contain all of the detailed information as set out in Article 4 of Commission Decision 2012/21/EU⁽⁹⁾.

10. In view of the special rules that apply to the primary production sectors (notably the primary production of agricultural products, and the primary production of fishery and aquaculture products), of the fact that undertakings in those sectors are rarely entrusted with services of general economic interest, and of the risk that amounts of aid below the ceiling set out in this Regulation could nonetheless fulfil the criteria set out in Article 107(1) of the Treaty, this Regulation should not apply to those sectors.

11. Considering the similarities between the processing and marketing of agricultural products and of non-agricultural products, this Regulation should apply to the processing and marketing of agricultural products, if certain conditions are met. On-farm activities necessary for preparing a product for the first sale (for example, harvesting; cutting and threshing of cereals; or packing eggs) or the first sale to resellers or processors should not be considered as processing and marketing in this respect and this Regulation should therefore not apply to those activities.

12. Equally, considering the nature of the activities in the processing and marketing of fishery and aquaculture products, and the similarities between those activities and other processing and marketing activities, this Regulation should apply to undertakings active in the processing and marketing of fishery and aquaculture products, provided that certain conditions are met. Neither on-farm or on-board activities necessary for preparing an animal or plant for the first sale (including cutting, filleting or freezing), nor the first sale to resellers or processors should be considered as processing or marketing in this respect and this Regulation should therefore not apply to those activities.

13. The Court of Justice of the European Union has determined that, once the Union has legislated for the establishment of a common organisation of the market in a given sector of agriculture, Member States are obliged to refrain from taking any measure that might undermine or create exceptions to it⁽¹⁰⁾. For that reason, this Regulation should not apply to aid for amounts fixed on the basis of the price or quantity of products purchased or put on the market in the agricultural sector. It should also not apply to aid linked to an obligation to share the aid with primary agricultural producers. These principles also apply to the fishery and aquaculture sector.

14. This Regulation should not apply to export aid or aid contingent upon the use of domestic goods or services over imported ones. In particular, it should not apply to aid financing the establishment and operation of a distribution network in other Member States or third countries. The Court of Justice of the European Union has ruled that Commission Regulation (EC) No 1998/2006⁽¹¹⁾‘does not exclude all aid which may have an impact on exports, but only that which has as its direct purpose, by its very form, the promotion of sales in another State’ and that ‘investment aid, on condition of it not being, in one form or another, determined, in principle and in its amount, by the quantity of the goods exported, is not included within ‘aid to export-related activities’ within the meaning of Article 1(1), point (d), of Regulation (EC) No 1998/2006 and does not therefore come within the scope of application of that provision, even if the investments thus supported facilitate the development of goods intended for export’⁽¹²⁾. Aid towards the costs of participating in trade fairs or towards the costs of studies or consultancy services needed to launch a new or existing product on a new market in another Member State or third country does not generally constitute export aid.

15. The period of 3 years to be taken into account for the purposes of this Regulation should be assessed on a rolling basis. For each new grant of de minimis aid, the total amount of de minimis aid granted in the previous 3 years needs to be taken into account.

16. Where an undertaking is active in one of the sectors excluded from the scope of this Regulation and is also active in other sectors or has other activities, this Regulation should apply to those other sectors or activities, provided that the Member State concerned ensures, by relying on appropriate means, such as separation of activities or separation of accounts, that the activities in the excluded sectors do not benefit from the de minimis aid. The same principle should apply where an undertaking is active in sectors to which lower de minimis ceilings apply. If an undertaking is not able to ensure that the activities in sectors to which lower de minimis ceilings apply only benefit from de minimis aid up to those lower ceilings, the lowest ceiling should apply to all activities of the undertaking.

17. Rules should be laid down to ensure that it is not possible to circumvent maximum aid intensities set out in the relevant State aid regulations or Commission decisions. Clear rules on cumulation should also be established.

18. This Regulation does not exclude the possibility that a measure might not be considered to be State aid within the meaning of Article 107(1) of the Treaty on grounds other than those set out in this Regulation, for instance, when the measure complies with the market economy operator principle or does not involve a transfer of State resources. In particular, Union funding centrally managed by the Commission that is not directly or indirectly under the control of the Member State does not constitute State aid and it should not be taken into account in determining whether the ceiling laid down in this Regulation is exceeded.

19. This Regulation does not encompass all situations where a measure may not have any effect on trade between Member States and may not distort or threaten to distort competition. There may be situations where a beneficiary supplies goods or services to a limited area (for example in an island region or an outermost region) within a Member State and that beneficiary is unlikely to attract customers from other Member States, and that it could not be foreseen that the measure would have more than a marginal effect on the conditions of cross-border investments or establishment. Such measures should be assessed on a case-by-case basis.

20. This Regulation should not affect the application of Regulation (EU) 2023/2831 to undertakings that provide services of general economic interest. Member States should remain free to rely either on this Regulation or on Regulation (EU) 2023/2831 as regards aid granted for the provision of services of general economic interest.

21. The Court of Justice has, in its Altmark judgment⁽¹³⁾, identified a number of conditions which must be fulfilled in order for compensation for the provision of a service of general economic interest not to constitute State aid. Those conditions ensure that compensation limited to the net costs incurred by efficient undertakings for the provision of a service of general economic interest does not constitute State aid within the meaning of Article 107(1) of the Treaty. If those conditions are not respected, compensation constitutes State aid which may be declared compatible on the basis of the applicable Union rules. In order to avoid this Regulation being applied to circumvent the conditions identified in the Altmark judgment, and in order to avoid de minimis aid granted under this Regulation affecting trade due to its cumulation with other compensation for the same service of general economic interest, de minimis aid under this Regulation should not be cumulated with any other compensation in respect of the same service, regardless of whether or not it constitutes State aid under the Altmark judgment or compatible State aid under Decision 2012/21/EU or under the Communication from the Commission – European Union framework for State aid in the form of public service compensation⁽¹⁴⁾.

22. For the purposes of transparency, equal treatment and effective monitoring, this Regulation should apply only to de minimis aid for which it is possible to calculate the precise gross grant equivalent ex ante without any need to carry out a risk assessment (‘transparent de minimis aid’). Such a precise calculation is possible, for instance, for grants, interest rate subsidies, capped tax exemptions or other instruments that provide for a cap, ensuring that the relevant ceiling is not exceeded. Providing for a cap means that, as long as the precise amount of aid is not known, the Member State has to assume that the amount is equal to the cap for the measure to ensure that several aid measures do not together exceed the ceiling set out in this Regulation and to apply the rules on cumulation.

23. For the purposes of transparency, equal treatment and the correct application of the de minimis ceiling, all Member States should apply the same calculation method to the calculation of the total amount of aid granted. To facilitate the calculation, aid amounts not taking the form of a cash grant should be converted into their gross grant equivalent. Calculating the gross grant equivalent of transparent types of aid, other than grants and aid payable in several instalments, requires the use of the market interest rates prevailing at the time such aid is granted. To facilitate a uniform, transparent and simple application of the State aid rules, the market rates applicable for the purposes of this Regulation should be the reference rates set in accordance with the Communication from the Commission on the revision of the method for setting the reference and discount rates⁽¹⁵⁾.

24. Aid comprised of loans, including de minimis risk finance aid taking the form of loans, should be considered transparent de minimis aid if the gross grant equivalent has been calculated on the basis of market interest rates prevailing at the time the aid is granted. To simplify the treatment of small loans of short duration, it is necessary to set out a clear rule that is easy to apply and takes into account both the amount of the loan and its duration. Loans that are secured by collateral covering at least 50 % of the loan and that do not exceed either EUR 3 750 000 and a duration of 5 years or EUR 1 875 000 and a duration of 10 years may be considered as having a gross grant equivalent not exceeding the de minimis ceiling. This is based on the Commission’s experience and given the inflation which has taken place since the entry into force of Regulation (EU) No 360/2012 and the estimated development of inflation during the period of application of this Regulation. Given the difficulties in determining the gross grant equivalent of aid granted to undertakings that may not be able to repay the loan (for example, because the undertaking is subject to collective insolvency proceedings or because it fulfils the criteria under its national law for being placed in collective insolvency proceedings at the request of its creditors), this rule should not apply to such undertakings.

25. Aid comprised of capital injections should not be considered as transparent de minimis aid unless the total amount of the public injection does not exceed the de minimis ceiling. Aid comprised of risk finance measures taking the form of equity or quasi-equity investments, as referred to in the risk finance guidelines⁽¹⁶⁾, should not be considered as transparent de minimis aid unless the measure concerned provides capital that does not exceed the de minimis ceiling.

26. Aid comprised of guarantees, including de minimis risk finance aid taking the form of guarantees, should be considered as transparent if the gross grant equivalent has been calculated on the basis of safe-harbour premiums laid down in a Commission notice for the type of undertaking concerned⁽¹⁷⁾. This Regulation should set out clear rules that take into account both the amount of the underlying loan and the duration of the guarantee. Setting out clear rules should help to simplify the treatment of guarantees of short duration securing up to 80 % of a relatively small loan, where losses are sustained proportionally and in the same way by the lender and the guarantor, and net recoveries generated from the recuperation of the loan from the securities given by the borrower reduce proportionally the losses borne by the lender and the guarantor. Those rules should not apply to guarantees on underlying transactions that do not constitute a loan, such as guarantees on equity transactions. Based on the Commission’s experience and given the inflation which has taken place since the entry into force of Regulation (EU) No 360/2012 and the estimated development of inflation during the period of validity of this Regulation, the guarantee should be considered as having a gross grant equivalent not exceeding the de minimis ceiling where (i) the guarantee does not exceed 80 % of the underlying loan; (ii) the amount guaranteed does not exceed EUR 5 625 000; and (iii) the duration of the guarantee does not exceed 5 years. The same applies where (i) the guarantee does not exceed 80 % of the underlying loan; (ii) the amount guaranteed does not exceed EUR 2 813 036; and (iii) the duration of the guarantee does not exceed 10 years.

27. In addition, Member States may use a methodology to calculate the gross grant equivalent of guarantees that has been notified to the Commission under another Commission Regulation in the State aid area applicable at that time and that has been accepted by the Commission as being in accordance with the Guarantee Notice⁽¹⁸⁾ or any successor notice. Member States may only do this if the accepted methodology explicitly addresses the type of guarantee and the type of underlying transaction at stake as part of the application of this Regulation.

28. Upon notification by a Member State, the Commission should examine whether a measure that does not consist in a grant, loan, guarantee, capital injection, or risk-finance measure taking the form of an equity or quasi-equity investment, capped tax exemptions or other instruments that provide for a cap, leads to a gross grant equivalent that does not exceed the de minimis ceiling and could therefore fall within the scope of this Regulation.

29. The Commission has a duty to ensure that State aid rules are complied with and are in accordance with the principle of sincere cooperation laid down in Article 4(3) of the Treaty on European Union. Member States should facilitate the fulfilment of this task by having in place the necessary tools to ensure that the total amount of de minimis aid granted to a single undertaking for the provision of services of general economic interest under the de minimis rule does not exceed the overall permissible ceiling. Member States should monitor the aid granted to ensure that the ceiling laid down in this Regulation is not exceeded and the cumulation rules are complied with. To comply with that obligation, Member States should provide complete information on de minimis aid granted in a central register at national or Union level, at the latest from 1 January 2026, and check that any new grant of aid does not exceed the ceiling laid down in this Regulation. The central register will help reducing the administrative burden for undertakings. Undertakings will no longer be required, under this Regulation, to keep track of and declare any other de minimis aid received, once the central register contains data for a period of 3 years. For the purposes of this Regulation, control of compliance with the ceiling laid down in this Regulation shall in principle be based on the information included in the central register.

30. Each Member State may set up a national central register. Existing national central registers satisfying the requirements laid down in this Regulation can continue to be used. The Commission will set up a central register at the Union level that can be used by Member States as from 1 January 2026.

31. Considering that administrative burden and regulatory obstacles constitute a problem for the majority of SMEs and that the Commission targets to reduce by 25 % the burden stemming from reporting requirements⁽¹⁹⁾, any central register should be set up in such a way as to reduce administrative burden. Good administrative practices, such as those laid down in the Single Digital Gateway Regulation⁽²⁰⁾, may be used as reference for the setting up and operation of the central register at Union level and of the national central registers.

32. Transparency rules aim to ensure better compliance, greater accountability, peer review and ultimately more effective public spending. The publication, in a central register, of the name of the aid beneficiary serves the legitimate interest in transparency by providing information to the public on the use of Member State funds. It does not unduly interfere with beneficiaries’ right to protection of their personal data as long as the publication in the central register of personal data complies with the Union rules on data protection⁽²¹⁾. Member States should have the option to pseudonymise specific entries where necessary to comply with the Union data protection rules.

33. This Regulation should lay down a set of conditions according to which any measure within the scope of this Regulation can be deemed not to have any effect on trade between Member States and not to distort or threaten to distort competition. For this reason, this Regulation should also apply to aid granted before its entry into force if all the conditions set out in it are fulfilled. Similarly, support which complied with the criteria in Regulation (EU) No 360/2012 granted between 29 April 2012 and 31 December 2023 should be considered as exempt from notification under Article 108(3) of the Treaty.

34. Having regard to the frequency with which it is generally necessary to revise State aid policy, the period of application of this Regulation should be limited. This Regulation replaces Regulation (EU) No 360/2012 upon its expiry.

35. Should the period of application of this Regulation expire without being extended, Member States should have an adjustment period of 6 months for de minimis aid covered by this Regulation,

HAS ADOPTED THIS REGULATION: