20.6.2017   

EN

Official Journal of the European Union

L 156/1

(1)

Commission Regulation (EU) No 651/2014 (2) declares that certain categories of aid are compatible with the internal market and exempted from the requirement that they must be notified to the Commission before they are granted. Regulation (EU) No 651/2014 announced that the Commission intended to review the scope of that Regulation with a view to including other categories of aid, and in particular aid for port and airport infrastructure, once sufficient case experience had been acquired.

(2)

In the light of the experience acquired by the Commission and in order to simplify and clarify the State aid rules, as well as to reduce the administrative burden of notifying straightforward State aid measures and to allow the Commission to focus on the potentially most distortive cases, aid for port and airport infrastructure should be included in the scope of Regulation (EU) No 651/2014.

(3)

Investment aid to regional airports with average annual passenger traffic of up to three million passengers can improve both the accessibility of certain regions and local development, depending on the specificities of each airport. Such investment aid therefore supports the priorities of the Europe 2020 strategy contributing to further economic growth and objectives of common Union interest. The experience acquired in the application of the Guidelines on State aid to airports and airlines (3) shows that investment aid to regional airports does not give rise to undue distortion of trade and competition, provided certain conditions are met. Investment aid to regional airports should therefore be covered by the block exemption in Regulation (EU) No 651/2014, provided that those conditions are fulfilled. It would not be appropriate to establish a notification threshold in terms of the amount of aid, since the competitive impact of an aid measure depends mainly on the size of the airport and not on the amount of aid.

(4)

The conditions for the exemption of investment aid from the notification requirement should aim at limiting distortions of competition that would undermine a level playing field in the internal market, in particular by ensuring the proportionality of the aid amount. In order to be proportionate, investment aid should fulfil two conditions. The aid intensity should not exceed a maximum permissible aid intensity, which varies according to the size of the airport. In addition, the aid amount should not exceed the difference between the eligible costs and the operating profit of the investment. For very small airports of up to 200 000 passengers per annum, the investment aid should only be required to fulfil one of those conditions. The compatibility conditions should ensure open and non-discriminatory access to the infrastructure. The exemption should not apply to investment aid granted to airports located in the vicinity of an existing airport from which scheduled air services are operated, because aid to such airports entails a higher risk of distortion of competition and should therefore be notified to the Commission, with the exception of aid granted to very small airports with up to 200 000 passengers per annum, which is unlikely to result in significant distortion of competition.

(5)

Operating aid to very small airports with up to 200 000 passengers per annum does not give rise to undue distortion of trade and competition, provided certain conditions are met. The compatibility conditions should, in particular, ensure that the aid amount does not exceed the operating losses and a reasonable profit and that there is open and non-discriminatory access to the infrastructure. In addition, the aid should not be granted under the condition that the airport operator concludes arrangements with one or more airlines relating to airport charges, marketing payments or other financial aspects of the airline's operations at that airport. Arrangements between an airport which has public resources at its disposal and an airline may, under certain circumstances, constitute State aid to the airline concerned (4), and such aid should remain fully subject to the notification requirement of Article 108(3) of the Treaty.

(6)

Maritime ports are of strategic importance for achieving the smooth functioning of the internal market and the strengthening of economic, social and territorial cohesion, as set out, inter alia, in the Europe 2020 Strategy and in the Commission White Paper ‘Roadmap to a Single European Transport Area — Towards a competitive and resource efficient transport system’ (5). As highlighted in the Communication ‘Ports: an engine for growth’ (6), the effective operation of ports in all Union maritime regions requires efficient public and private investment. Investments are necessary, in particular, for the adaptation of access infrastructure to ports and of port infrastructure to the increased size and complexity of the fleet, to the use of alternative fuel infrastructure and to stricter requirements on environmental performance. The lack of high quality port infrastructure results in congestion and extra costs for shippers, transport operators and consumers.

(7)

The development of inland ports and their integration into multi-modal transport is a major objective of the Union's transport policy. The Union rules explicitly aim at reinforcing transport intermodality and the shift towards more environmentally-friendly modes of transport such as rail and sea/inland waterway transport.

(8)

The conditions for the exemption of aid to ports from the notification requirement should aim at limiting distortions of competition that would undermine a level playing field in the internal market, in particular by ensuring the proportionality of the aid amount. In order to be proportionate, the aid should fulfil two conditions. The aid intensity should not exceed a maximum permissible aid intensity, which for maritime ports varies according to the size of the investment project. In addition, the aid amount should not exceed the difference between the eligible costs and the operating profit of the investment, except for very small aid amounts, for which a simplified approach is appropriate in order to reduce the administrative burden. The compatibility conditions should also ensure that any concession or other entrustment to a third party to construct, upgrade, operate or rent aided port infrastructure is assigned on a competitive, transparent, non-discriminatory and unconditional basis, without prejudice to the Union rules on public procurement and concessions, where applicable. Equal and non-discriminatory access to the infrastructure should also be ensured.

(9)

Investments included in the work plans of the Core Network Corridors set up by Regulation (EU) No 1315/2013 of the European Parliament and of the Council (7) are projects of common interest with a particular strategic interest for the Union. Maritime ports that are part of those networks constitute the entry and exit points of goods being transported in and out of the Union. Inland ports that are part of those networks are key factors enabling the multimodality of the network. Investments aiming to improve the performance of those ports should therefore benefit from a higher notification threshold.

(10)

In the light of the experience acquired in the application of Regulation (EU) No 651/2014 and Commission Regulation (EU) No 702/2014 (8), it is also appropriate to adapt certain provisions of those Regulations.

(11)

In particular, as regards regional operating aid schemes for outermost regions, the application of different rules for the compensation of additional transport costs and of other additional costs has proven difficult in practice and not appropriate to address the structural handicaps referred to in Article 349 of the Treaty, remoteness and insularity, small size, difficult topography and climate, economic dependence on a few products, the permanence and combination of which severely restrain their development, and the provisions should therefore be replaced by a method that applies to all additional costs. The implementation of regional investment and operating aid measures in outermost regions which, amongst others, benefit undertakings active in the fishery sector should be in line with the Union's obligations resulting from international agreements to which it is a contracting party. Therefore, such regional investment and operating aid measures should not benefit vessels engaged in illegal, unreported and unregulated fishing or contribute to overfishing or to an increase in the fishing capacity of vessels.

(12)

In view of the limited negative effects on competition of aid for culture and heritage conservation and of aid for sport and multifunctional recreational infrastructures, the notification thresholds for aid in those areas should be increased.

(13)

In order to simplify the calculation of eligible costs under Regulation (EU) No 651/2014 and Regulation (EU) No 702/2014 for operations that are at least partly financed through a Union fund that allows the use of simplified cost options, the provisions relating to eligible costs should be adapted.

(14)

Under the Horizon 2020 SME-instrument as referred in Article 22(2) of Regulation (EU) No 1291/2013 of the European Parliament and of the Council (9), projects can receive a Commission Seal of Excellence quality label. Such projects, given their limited aid amounts of maximum EUR 2,5 million per project and the fact that they are targeting exclusively SMEs, can be exempted from the notification requirement in accordance with the rules of Regulation (EU) No 651/2014.

(15)

Regulation (EU) No 651/2014 and Regulation (EU) No 702/2014 should therefore be amended accordingly,

(1)

Article 1 is amended as follows:

(2)

Article 2 is amended as follows:

(3)

paragraph 1 of Article 4 is amended as follows:

(4)

in Article 5(2), the following point (k) is added:

(5)

in Article 6, paragraph 5 is amended as follows:

(6)

Article 7 is amended as follows:

(7)

in Article 8, the following paragraph 7 is added:

‘7.   By way of derogation from paragraphs 1 to 6, in determining whether the ceilings for regional operating aid in outermost regions, as set out in Article 15(4), are respected, only regional operating aid in outermost regions implemented under this Regulation shall be taken into account.’;

(8)

Article 12 is replaced by the following:

‘Article 12

Monitoring

1.   In order to enable the Commission to monitor the aid exempted from notification by this Regulation, Member States, or alternatively, in the case of aid granted to European Territorial Cooperation projects, the Member State in which the Managing Authority is located, shall maintain detailed records with the information and supporting documentation necessary to establish that all the conditions laid down in this Regulation are fulfilled. Such records shall be kept for 10 years from the date on which the ad hoc aid was granted or the last aid was granted under the scheme.

2.   In the case of schemes under which fiscal aid is granted automatically, such as those based on tax declarations of the beneficiaries, and where there is no ex ante verification that all compatibility conditions are met for each beneficiary, Member States shall regularly verify, at least ex post and on a sample basis, that all compatibility conditions are met, and draw the necessary conclusions. Member States shall maintain detailed records of the verifications for at least 10 years from the date of the controls.

3.   The Commission may request, from each Member State, all the information and supporting documentation which the Commission considers necessary to monitor the application of this Regulation, including the information mentioned in paragraphs 1 and 2. The Member State concerned shall provide the Commission with the requested information and supporting documents within a period of 20 working days from receipt of the request or such longer period as may be fixed in the request.’;

(9)

Article 13 is replaced by the following:

‘Article 13

Scope of regional aid

This Section shall not apply to:

(10)

Article 14 is amended as follows:

(11)

Article 15 is replaced by the following:

‘Article 15

Regional operating aid

1.   Regional operating aid schemes in outermost regions, sparsely populated areas and very sparsely populated areas shall be compatible with the internal market within the meaning of Article 107(3) of the Treaty and shall be exempted from the notification requirement of Article 108(3) of the Treaty, provided that the conditions laid down in this Article and in Chapter I are fulfilled.

2.   In sparsely populated areas, the regional operating aid schemes shall compensate for the additional transport costs of goods which have been produced in areas eligible for operating aid, as well as additional transport costs of goods that are further processed in those areas, under the following conditions:

The aid intensity shall not exceed 100 % of the additional transport costs as set out in this paragraph.

3.   In very sparsely populated areas, the regional operating aid schemes shall prevent or reduce depopulation under the following conditions:

4.   In outermost regions, the operating aid schemes shall compensate for the additional operating costs incurred in those regions as a direct result of one or several of the permanent handicaps referred to in Article 349 of the Treaty, where the beneficiaries have their economic activity in an outermost region provided that the annual aid amount per beneficiary under all operating aid schemes implemented under this Regulation does not exceed any of the following percentages:

(12)

in Article 21, paragraph 16 is amended as follows:

(13)

in Article 22, paragraph 2 is replaced by the following:

‘2.   Eligible undertakings shall be any unlisted small enterprise up to five years following its registration, which fulfils the following conditions:

For eligible undertakings that are not subject to registration, the five year eligibility period may be considered to start from the moment when the enterprise either starts its economic activity or is liable to tax for its economic activity.

By way of derogation from point (c) of the first subparagraph, enterprises formed through a merger between undertakings eligible for aid under this Article shall also be considered eligible undertakings up to five years from the date of registration of the oldest enterprise participating in the merger.’;

(14)

in Article 25, paragraph 1 is replaced by the following:

‘1.   Aid for research and development projects, including projects having received a Seal of Excellence quality label under the Horizon 2020 SME-instrument, shall be compatible with the internal market within the meaning of Article 107(3) of the Treaty and shall be exempted from the notification requirement of Article 108(3) of the Treaty provided that the conditions laid down in this Article and in Chapter I are fulfilled.’;

(15)

in Article 31(3), point (b) is replaced by the following:

(16)

in Article 52, the following paragraph 2a is inserted:

‘2a.   As an alternative to establishing the eligible costs as provided for in paragraph 2, the maximum amount of aid for a project may be established on the basis of the competitive selection process as required by paragraph 4.’;

(17)

Article 53 is amended as follows:

(18)

in Article 54(4), the second subparagraph is replaced by the following:

‘In both cases, the maximum expenditure subject to territorial spending obligations shall in no case exceed 80 % of the overall production budget.

For projects to be eligible for aid, a Member State may also require a minimum level of production activity in the territory concerned, but that level shall not exceed 50 % of the overall production budget.’;

(19)

in Article 55, paragraph 12 is replaced by the following:

‘12.   For aid not exceeding EUR 2 million, the maximum amount of aid may be set at 80 % of eligible costs, as an alternative to application of the method referred to in paragraphs 10 and 11.’;

(20)

the following sections 14 and 15 are inserted after Article 56:

‘SECTION 14

Aid for regional airports

Article 56a

Aid for regional airports

1.   Investment aid to an airport shall be compatible with the internal market within the meaning of Article 107(3) of the Treaty and shall be exempted from the notification requirement of Article 108(3) of the Treaty, provided that the conditions laid down in paragraphs 3 to 14 of this Article and in Chapter I are fulfilled.

2.   Operating aid to an airport shall be compatible with the internal market within the meaning of Article 107(3) of the Treaty and shall be exempted from the notification requirement of Article 108(3) of the Treaty, provided that the conditions laid down in paragraphs 3, 4, 10 and 15 to 18 of this Article and in Chapter I are fulfilled.

3.   The airport shall be open to all potential users. In the case of physical limitation of capacity, the allocation shall take place on the basis of pertinent, objective, transparent and non-discriminatory criteria.

4.   The aid shall not be granted for the relocation of existing airports or for the creation of a new passenger airport, including the conversion of an existing airfield into a passenger airport.

5.   The investment concerned shall not exceed what is necessary to accommodate the medium-term expected traffic on the basis of reasonable traffic forecasts.

6.   The investment aid shall not be granted to an airport located within 100 kilometres or 60 minutes travelling time by car, bus, train or high-speed train from an existing airport from which scheduled air services, within the meaning of Article 2(16) of Regulation (EC) No 1008/2008, are operated.

7.   Paragraphs 5 and 6 shall not apply to airports with average annual passenger traffic of up to 200 000 passengers during the two financial years preceding the year in which aid is actually granted if the investment aid is not expected to result in the airport increasing its average annual passenger traffic to above 200 000 passengers within two financial years following the granting of the aid. Investment aid granted to such airports shall comply either with paragraph 11 or with paragraphs 13 and 14.

8.   Paragraph 6 shall not apply where the investment aid is granted to an airport situated within 100 kilometres from existing airports from which scheduled air services, within the meaning of Article 2(16) of Regulation (EC) No 1008/2008, are operated, provided the route between each of these other existing airports and the airport receiving the aid necessarily involves either a total travelling time by maritime transportation of at least 90 minutes or air transportation.

9.   The investment aid shall not be granted to airports with average annual passenger traffic of more than three million passengers during the two financial years preceding the year in which aid is actually granted. The investment aid shall not be expected to result in the airport increasing its average annual traffic to above three million passengers within two financial years following the granting of the aid.

10.   The aid shall not be granted to airports with average annual freight traffic of more than 200 000 tonnes during the two financial years preceding the year in which aid is actually granted. The aid shall not be expected to result in the airport increasing its average annual freight traffic to above 200 000 tonnes within two financial years following the granting of the aid.

11.   The investment aid amount shall not exceed the difference between the eligible costs and the operating profit of the investment. The operating profit shall be deducted from the eligible costs ex ante, on the basis of reasonable projections, or through a claw-back mechanism.

12.   The eligible costs shall be the costs relating to the investments in airport infrastructure, including planning costs.

13.   The investment aid amount shall not exceed:

14.   The maximum aid intensities set out in paragraph 13 may be increased by 20 percentage points for airports located in remote regions.

15.   Operating aid shall not be granted to airports with average annual passenger traffic of more than 200 000 passengers during the two financial years preceding the year in which aid is actually granted.

16.   The amount of operating aid shall not exceed what is necessary to cover the operating losses and a reasonable profit over the relevant period. The aid shall be granted either in the form of periodic instalments fixed ex ante, which shall not be increased during the period for which the aid is granted, or in the form of amounts defined ex post based on the observed operating losses.

17.   Operating aid shall not be paid out in respect of any calendar year during which the annual passenger traffic of the airport exceeds 200 000 passengers.

18.   The granting of the operating aid shall not be made conditional upon the conclusion of arrangements with specific airlines relating to airport charges, marketing payments or other financial aspects of the airlines' operations at the airport concerned.

SECTION 15

Aid for ports

Article 56b

Aid for maritime ports

1.   Aid for maritime ports shall be compatible with the internal market within the meaning of Article 107(3) of the Treaty and shall be exempted from the notification requirement of Article 108(3) of the Treaty, provided that the conditions laid down in this Article and in Chapter I are fulfilled.

2.   The eligible costs shall be the costs, including planning costs, of:

3.   Costs relating to non-transport related activities, including industrial production facilities active in a port, offices or shops, as well as for port superstructures shall not be eligible costs.

4.   The aid amount shall not exceed the difference between the eligible costs and the operating profit of the investment or dredging. The operating profit shall be deducted from the eligible costs ex ante, on the basis of reasonable projections, or through a claw-back mechanism.

5.   The aid intensity per investment referred to in point (a) of paragraph 2 shall not exceed:

The aid intensity shall not exceed 100 % of the eligible costs determined in point (b) of paragraph 2 and point (c) of paragraph 2 up to the amount laid down in point (ee) of Article 4(1).

6.   The aid intensities laid down in points (b) and (c) of the first subparagraph of paragraph 5 may be increased by 10 percentage points for investments located in assisted areas fulfilling the conditions of point (a) of Article 107(3) of the Treaty and by 5 percentage points for investments located in assisted areas fulfilling the conditions of point (c) of Article 107(3) of the Treaty.

7.   Any concession or other entrustment to a third party to construct, upgrade, operate or rent aided port infrastructure shall be assigned on a competitive, transparent, non-discriminatory and unconditional basis.

8.   The aided port infrastructure shall be made available to interested users on an equal and non-discriminatory basis on market terms.

9.   For aid not exceeding EUR 5 million, the maximum amount of aid may be set at 80 % of eligible costs, as an alternative to application of the method referred to in paragraphs 4, 5 and 6.

Article 56c

Aid for inland ports

1.   Aid for inland ports shall be compatible with the internal market within the meaning of Article 107(3) of the Treaty and shall be exempted from the notification requirement of Article 108(3) of the Treaty, provided that the conditions laid down in this Article and in Chapter I are fulfilled.

2.   The eligible costs shall be the costs, including planning costs, of:

3.   Costs relating to non-transport related activities, including industrial production facilities active in a port, offices or shops, as well as for port superstructures shall not be eligible costs.

4.   The aid amount shall not exceed the difference between the eligible costs and the operating profit of the investment or dredging. The operating profit shall be deducted from the eligible costs ex ante, on the basis of reasonable projections, or through a claw-back mechanism.

5.   The maximum aid intensity shall not exceed 100 % of the eligible costs up to the amount laid down in point (ff) of Article 4(1).

6.   Any concession or other entrustment to a third party to construct, upgrade, operate or rent aided port infrastructure shall be assigned on a competitive, transparent, non-discriminatory and unconditional basis.

7.   The aided port infrastructure shall be made available to interested users on an equal and non-discriminatory basis on market terms.

8.   For aid not exceeding EUR 2 million, the maximum amount of aid may be set at 80 % of eligible costs, as an alternative to application of the method referred to in paragraphs 4 and 5.’;

(21)

Article 58 is amended as follows:

(22)

In Annex II, Part II is replaced by the text in the Annex to this Regulation;

(23)

Annex III is amended as follows: