Commission Regulation (EC) No 271/2008Show full title

Commission Regulation (EC) No 271/2008

of 30 January 2008

amending Regulation (EC) No 794/2004 implementing Council Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community,

Having regard to Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty(1), and in particular Article 27 thereof,

After consulting the Advisory Committee on State Aid,

Whereas:

(1) In order to facilitate and accelerate the submission of State aid notifications by Member States, and their assessment by the Commission, it is desirable to generalise the use of the already established electronic systems.

(2) Since 1 January 2006 Member States have been required to transmit State aid notifications electronically. The web application State Aid Notification Interactive (SANI)(2) has become fully functional and has increased the efficiency of procedures. For these reasons, from 1 July 2008, its use should be rendered obligatory for Member States for the submission of State aid notifications to the Commission.

(3) Since 1 January 2006, Member States have also been required to transmit all correspondence in connection with notifications electronically. The secured e-mail system Public Key Infrastructure (PKI)(3) tested by the Commission has become fully functional. Its use should therefore be rendered obligatory, from 1 July 2008, for all correspondence from Member States to the Commission in connection with a notification.

(4) In exceptional cases, upon the agreement of the Commission and the Member State concerned, it should be possible to use a communication channel other than the established web application or secured e-mail system.

(5) Member States should be invited to submit a separate non-confidential version of the notification, on a voluntary basis, or any correspondence in connection with a notification where these documents contain confidential information. This should lead to shortening of procedures and should enable the Commission to decide more easily on requests for access to documents. The classification of the information as confidential should be justified by the Member State concerned. The submission of a separate non-confidential copy of the notification or any correspondence in connection with a notification is without prejudice to the assessment by the Commission of the confidential character of the information submitted.

(6) In order to improve transparency of State aid in the Community, Member States should be required to refer to the State aid identification number allocated to the aid scheme concerned by the Commission in each grant of aid to a final beneficiary, save for aid granted through fiscal measures. For the same reason, the notification form should be modified to include an undertaking to publish on the Internet the full text of final aid schemes as approved by the Commission.

(7) In the light of changes in transmission of notifications, the provisions concerning the calculation of time limits should be also updated.

(8) The methodology for setting the interest rates applicable in respect of the recovery of unlawful aid follows the methodology for setting the reference and discount rates. The methodology for setting the reference and discount rates has been reviewed. The provisions of Commission Regulation (EC) No 794/2004(4) concerning the interest rate applicable in respect of the recovery of unlawful aid should therefore be amended in order to reflect these changes.

(9) In order to enable the Commission to better assess the effects of the notified aid measures on competition in the internal market, questions concerning the potential of such measures to distort competition and to affect intra-Community trade should be included in the notification form.

(10) According to the case law of the Court of First Instance of the European Communities(5), when assessing the compatibility of aid with the common market, the Commission must take all the relevant factors into account, including, where relevant, the circumstances already considered in a prior decision and the obligations which that previous decision may have imposed on a Member State. The Commission therefore has power to take into consideration the cumulative effect of any old aid and the new aid, and the fact that the old aid declared unlawful has not been repaid. In order to enable the Commission to apply systematically this case law to individual aid measures as well as to aid schemes, the notification form should be modified.

(11) In addition to the changes introduced in Part I of Annex I, further amendments to the notification forms are necessary, in particular the deletion of Part II of Annex I to Regulation (EC) No 794/2004, in order to avoid duplication of the information to be submitted by Member States.

(12) Following the adoption by the Commission of new Community guidelines on State aid to promote risk capital investments in small and medium-sized enterprises(6) and the Community framework for State aid for research and development and innovation(7), it is necessary to replace the notification forms contained in Part III.11 and Part III.6(a) and (b) of Annex I, with new notification forms which are in line with the current frameworks. The other notification forms contained in Part III of Annex I remain unchanged.

(13) In order to ensure legal certainty and to increase transparency in granting the aid in the Community, the simplified notification form provided for in Article 4(2) of Regulation (EC) No 794/2004 and contained in Annex II should also be amended. In particular, Member States should be required confirm that all commitments given for the purposes of a previously approved scheme will remain valid in their entirety in respect of a new notified aid measure.

(14) Regulation (EC) No 794/2004 should therefore be amended accordingly,

HAS ADOPTED THIS REGULATION:

(1)

OJ L 83, 27.3.1999, p. 1. Regulation as last amended by Council Regulation (EC) No 1791/2006 (OJ L 363, 20.12.2006, p. 1).

(2)

Details on the established web application are published in Commission notice ‘D including addresses together with the arrangements for the protection of confidential information’ (OJ C 237, 27.9.2005, p. 3).

(3)

Details are published in Commission notice ‘D including addresses together with the arrangements for the protection of confidential information’.

(4)

OJ L 140, 30.4.2004, p. 1. Regulation as last amended by Regulation (EC) No 1935/2006 (OJ L 407, 30.12.2006, p. 1, as corrected by OJ L 44, 15.2.2007, p. 3.)

(5)

Joined cases T-244/93 and T-486/93 TWD Textilwerke Deggendorf GmbH v Commission of the European Communities, [1995] ECR II-2265.

(6)

OJ C 194, 18.8.2006, p. 2.

(7)

OJ C 323, 30.12.2006, p. 1.