State Aid Rules. Webinar TAFTIE Academy 22th of October 2015 Maija Lönnqvist, Tekes

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1 State Aid Rules Webinar TAFTIE Academy 22th of October 2015 Maija Lönnqvist, Tekes

2 Topics of the seminar 1) What is state aid? 2) State aid modernisation 3) R&D rules 4) General Block Exemtion Regulation: general 5) GBER: R&D rules 6) R&D&I Framework: What is (or is not) state aid? 7) De minimis regulation DM

3 What is state aid? According to Article 107(1) TFEU State aid is any aid to an undertaking in any form whatsoever when 1. it is granted by a Member State or through State resources 2. it favours certain undertakings or the production of certain goods 3. it distorts or threatens to distort competition 4. it affects trade between Member States

4 State Aid Modernisation (SAM) objectives Three objectives: (i) to foster sustainable, smart and inclusive growth in a competitive internal market; (ii) to focus Commission ex ante scrutiny on cases with the biggest impact on internal market whilst strengthening the Member States cooperation in State aid enforcement; (iii) to streamline the rules and provide for faster decisions. State aid control should more effectively target sustainable growthenhancing policies while encouraging budgetary consolidation, limiting distortions of competition and keeping the single market open.

5 State aid modernisation main changes Common principles for assessing the compatibility of aid with the internal market were identified contribution to a well-defined objective of common interest need for State intervention appropriateness of the aid measure incentive effect proportionality of the aid (aid to the minimum) avoidance of undue negative effects on competition and trade between Member States transparency of aid State aid guidelines revised according to these new principles Guidelines for Rescue and restructuring aid, Regional Aid, Environmental and Energy Aid, Broadband, Aviation, Agriculture, Promotion of Important Projects of Common European Interest (IPCEI) and Risk Finance as well as Framework for Research, Development and Innovation

6 State aid modernisation main changes The main regulations were modernized GBER De minimis regulation Enabling regulation Procedural Regulation Implementing Regulation The notion of State aid was to be clarified and better explained (draft) Transparency of state aid awards was increased The Member States are required to evaluate their main aid schemes The Commission has launched a partnership with the Member States on the implementation of the SAM. A High Level Forum between the Commission and the Member States has been set up for regular discussions. DM

7 Relevant rules for R&D&I aid General Block Exemption Regulation R&D&I Framework De Minimis Regulation Detailed rules of different instruments are included in the GBER The Framework provides mainly guidance on what is considered state aid and how notified aid measures are assessed Most R&D&I schemes can be funded under the GBER De minimis for small projects

8 General Block Exemption regulation Applies to : (a) regional aid; (b) aid to SMEs in the form of investment aid, operating aid and SMEs' access to finance; (c) aid for environmental protection; (d) aid for research and development and innovation; (e) training aid; (f) recruitment and employment aid for disadvantaged workers and workers with disabilities; (g) aid to make good the damage caused by certain natural disasters; (h) social aid for transport for residents of remote regions; (i) aid for broadband infrastructures; (j) aid for culture and heritage conservation; (k) aid for sport and multifunctional recreational infrastructures; and (l) aid for local infrastructures

9 Evaluation plan (Art. 1.2) For large aid schemes (annual budget over EUR 150 million), an evaluation plan must be notified to the Commission A scheme is in force only six months unless the Commission accepts the evaluation plan 'evaluation plan' means a document containing at least the following: the objectives of the aid scheme to be evaluated, the evaluation questions, the result indicators and the envisaged methodology to conduct the evaluation, the data collection requirements the proposed timing of the evaluation including the date of submission of the final evaluation report, the description of the independent body conducting the evaluation or the criteria that will be used for its selection and the modalities for ensuring the publicity of the evaluation.

10 Lessons learnt on the evaluation plan (case Tekes) Pre-notification is essential Concentrate: evaluate the aid scheme in question (not all schemes) Use the form provided by the Commission Define the scheme and its objectives Define the exact evaluation questions, methodology and the result indicators as well as the (statistical) data sources Evaluate the indirect and negative effects as well as appropriateness of the chosen aid instruments Mid-term evaluation is needed Discuss with the Commission, preferably in advance!

11 Certain exclusions (Art. 1.4) The GBER does not apply to: aid schemes which do not explicitly exclude the payment of individual aid in favour of an undertaking which is subject to an outstanding recovery order following a previous Commission decision declaring an aid illegal and incompatible with the internal market (Deggendorf clause) aid to undertakings in difficulty, e.g. A company that has lost more than half of its subscribed share capital A company that is subject to collective insolvency proceedings These provisions must be included in the national legislation!

12 Remember also (Art. 1.5) The GBER does not apply to State aid measures, which entail, by themselves, by the conditions attached to them or by their financing method a non-severable violation of Union law, in particular: (a) aid measures where the grant of aid is subject to the obligation for the beneficiary to have its headquarters in the relevant Member State or to be predominantly established in that Member State; However, the requirement to have an establishment or branch in the aid granting Member State at the moment of payment of the aid is allowed. (b) aid measures where the grant of aid is subject to the obligation for the beneficiary to use nationally produced goods or national services; (c) aid measures restricting the possibility for the beneficiaries to exploit the research, development and innovation results in other Member States

13 Definition of an aid scheme (Art. 2.15) 'aid scheme' means any act on the basis of which, without further implementing measures being required, individual aid awards may be made to undertakings defined within the act in a general and abstract manner and any act on the basis of which aid which is not linked to a specific project may be granted to one or several undertakings for an indefinite period of time and/or for an indefinite amount; Details of an aid scheme must be included in the national legislation even though it follows the provisions of the GBER!

14 Important Articles Art. 4 Notification thresholds: higher than before Art. 5 Transparency of aid instruments Art. 6 Incentive effect : Aid shall be considered to have an incentive effect if the beneficiary has submitted a written application for the aid to the Member State concerned before work on the project or activity starts. No specific rules for aid to large companies in aid schemes Minimum requirements for applications Art 7. Aid intensity and eligible costs The eligible costs shall be supported by documentary evidence which shall be clear, specific and contemporary Art. 8 Cumulation More flexible rules on cumulation

15 Publication and information (Art.9) The Member State shall ensure the publication on a comprehensive State aid website, at national or regional level of: (a) the summary information in the standardised format provided to the Commission via the electronic reporting system after the aid scheme has come to use or a link providing access to it; (b) the full text of each aid measure, or a link providing access to the full text; (c) the information defined in Annex III on each individual aid award exceeding EUR Member States shall comply with the provisions of this Article by

16 Publication The following information on individual awards shall be published: Name of the beneficiary Beneficiary's identifier Type of enterprise (SME/large) at the time of granting Region in which the beneficiary is located, at NUTS level II Sector of activity at NACE group level Aid element, expressed as full amount in national currency Aid instrument (Grant/Interest rate subsidy, Loan/Repayable advances/reimbursable grant, Guarantee, Tax advantage or tax exemption, Risk finance, Other (please specify)) Date of granting Objective of the aid Granting authority Reference of the aid measure

17 Reporting (Art. 11) and Monitoring (Art. 12) Member States shall transmit to the Commission: (a) via the Commission's electronic notification system, the summary information about each aid measure exempted under this Regulation in the standardised format, together with a link providing access to the full text of the aid measure, including its amendments, within 20 working days following its entry into force; (b) an annual report, in electronic form, on the application of this Regulation Member States shall keep detailed records with the information and supporting documentation necessary to establish that all the conditions laid down in this Regulation are fulfilled for 10 years from the date on which the last aid was granted under the scheme. The Member State concerned shall provide the Commission within a period of 20 working days with all the information and supporting documentation which the Commission considers necessary to monitor the application of this Regulation

18 Aid for R&D projects (art. 25) Different stages (a) fundamental research, aid intensity max. 100 %; (b) industrial research, max. 50 %; (c) experimental development, max. 25 %; (d) feasibility studies, max 50 %. Bonuses: 10/20% SMEs 15 for collaboration or public results

19 Aid for R&D projects (Art. 25) Eligible costs personnel costs costs of instruments and equipment to the extent and for the period used for the project (or depreciation costs) Costs for of buildings and land, to the extent and for the duration period used for the project (or depreciation costs) costs of contractual research, knowledge and patents, costs of consultancy and equivalent services used exclusively for the project additional overheads and other operating expenses, including costs of materials, supplies and similar products,incurred directly as a result of the project The eligible costs for feasibility studies shall be the costs of the study

20 Aid to research infrastructures (Art. 26) Research infrastructure means facilities, resources and related services that are used by the scientific community to conduct research in their respective fields and covers scientific equipment or sets of instruments, knowledge-based resources such as collections, archives or structured scientific information, enabling information and communication technology-based infrastructures such as grid, computing, software and communication, or any other entity of a unique nature essential to conduct research. such infrastructures may be 'single-sited' or 'distributed'

21 Aid to research infrastructures (Art. 26) Aid for the construction or upgrade of research infrastructures that perform economic activities Eligible costs: investment costs in intangible and tangible assets. Aid intensity max. 50% of the eligible costs. The infrastructure must be open to several users and granted on a transparent and non-discriminatory basis for a market price. The financing, costs and revenues of economic and non-economic activities of the infrastructure shall be accounted for separately

22 Aid for innovation clusters (Art. 27) innovation clusters are structures or organised groups of independent parties designed to stimulate innovative activity through promotion, sharing of facilities and exchange of knowledge and expertise and by contributing effectively to knowledge transfer, networking, information dissemination and collaboration in the cluster; Access to the cluster's premises, facilities and activities shall be open to several users and be granted on a transparent and nondiscriminatory basis for the market price or reflecting the costs Aid is granted exclusively to the legal entity operating the innovation cluster (cluster organisation)

23 Aid for innovation clusters (Art. 27) Investment aid, max 50% for the construction or upgrade of innovation clusters. investment costs in intangible and tangible assets. Operational aid, max. 50 % for the operation of innovation clusters. It shall not exceed ten years. The eligible costs shall be the personnel and administrative costs (including overhead costs) relating to: (a) animation of the cluster to facilitate collaboration, information and the provision of customised business support services; sharing (b) marketing of the cluster to increase participation of new organisations and to increase visibility; (c) management of the cluster's facilities; organisation of training programmes, workshops and conferences to support knowledge sharing and networking and transnational cooperation.

24 Innovation aid to SMEs The eligible costs shall be the following: (a) costs for obtaining, validating and defending patents and other intangible assets; (b) costs for secondment of highly qualified personnel from a research and knowledge-dissemination organization or a large enterprise, working on research, development and innovation activities in a newly created function within the beneficiary and not replacing other personnel; (c) costs for innovation advisory and support services; The aid intensity shall not exceed 50% of the eligible costs. For innovation advisory and support services, the aid intensity can be increased up to 100% of the eligible costs, total amount of aid max. EUR per undertaking within any three year period.

25 R&D&I framework research and knowledge dissemination organisation or research organisation means an entity (such as universities or research institutes, technology transfer agencies, innovation intermediaries, research-oriented physical or virtual collaborative entities), irrespective of its legal status (organised under public or private law) or way of financing, whose primary goal is to independently conduct fundamental research, industrial research or experimental development or to widely disseminate the results of such activities by way of teaching, publication or knowledge transfer. Where such entity also pursues economic activities, the financing, the costs and the revenues of those economic activities must be accounted for separately. Undertakings that can exert a decisive influence upon such an entity, for example in the quality of shareholders or members, may not enjoy a preferential access to the results generated by it

26 R&D Framework: What is considered state aid? Research organisations and infrastructures are recipients of State aid if their public funding fulfils all conditions of Article 107(1) of the Treaty. must qualify as an undertaking: carries out an economic activity consisting of offering products or services on a given market If the same entity carries out of both economic and non-economic activities, the two kinds of activities and their costs, funding and revenues must be clearly separated in order to avoid the crosssubsidisation of the economic activity Generally considered non-economic: Primary activities of reserach organisations, incl. education, independent research, wide non-exclusive dissemination of results Knowledge transfer activities

27 R&D&I Framework: Indirect State aid to undertakings Contract research: In contract research, an undertaking typically specifies the terms and conditions of the contract, owns the results of the research activities and carries the risk of failure No State aid to the undertaking if the research organisation receives payment of an adequate remuneration for its services, particularly where one of the following conditions is fulfilled: (a) the research organisation provides its research service or contract research at market price or (b) where there is no market price, the research organisation provides its research service or contract research at a price which reflects the full costs of the service and generally includes a margin or is the result of arm s length negotiations DM

28 R&D&I Framework: Indirect State aid to undertakings Collaborative research No state aid if one of the following conditions is fulfilled: (a) the participating undertakings bear the full cost of the project, or (b) the results of the collaboration which do not give rise to IPR may be widely disseminated and any IPR resulting from the activities of research organisations are fully allocated to those entities, or (c) any IPR resulting from the project, as well as related access rights are allocated to the different collaboration partners in a manner which adequately reflects their work packages, contributions and respective interests, or (d) the research organisations receive compensation equivalent to the market price for the IPR which result from their activities and are assigned to the participating undertakings. DM

29 R&D&I Framework : Defining the market price The compensation received is equivalent to the market price if it enables the research organisations to enjoy the full economic benefit of those rights, where one of the following conditions is fulfilled: (a) the compensation is established by means of an open, transparent and non-discriminatory competitive sale procedure, or (b) an independent expert valuation confirms that the amount of the compensation is at least equal to the market price, or (c) the research organisationcan demonstrate that it effectively negotiated the compensation, at arm s length conditions, in order to obtain the maximum economic benefit or (d)in cases where the collaborating undertaking has a right of first refusal and the research organisations exercise a reciprocal right to solicit more economically advantageous offers from third parties so that the undertaking has to match its offer accordingly DM

30 De minimis regulation Applicable to all sectors Maximum amount of aid EUR over period of three fiscal years Grants can be granted to undertakings in difficulty; limitations for loans. May be granted in different forms of aid gross grant equivalent May be cumulated with other state aid The beneficiary must be informed of the de minimis nature of aid The beneficiary must declare any other de minimis aid it has received during the two previous fiscal years and the current fiscal year DM

31 Useful links GBER De minimis regulation ulation_en.pdf R&D&I Framework Notion of aid n/draft_guidance_en.pdf DM

32 Thank you! DM

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