16.6.2009   

EN

Official Journal of the European Union

C 136/3

1.

This Notice sets out a simplified procedure under which the Commission intends, in close cooperation with the Member State concerned, to examine within an accelerated time frame certain types of State support measures which only require the Commission to verify that the measure is in accordance with existing rules and practices without exercising any discretionary powers. The Commission’s experience gained in applying Article 87 of the Treaty establishing the European Community and the regulations, frameworks, guidelines and notices adopted on the basis of Article 87 (1), has shown that certain categories of notified aid are normally approved without raising any doubts as to their compatibility with the common market, provided that there are no special circumstances. These categories of aid are described in Section 2. Other aid measures notified to the Commission will be subject to the appropriate procedures (2) and normally to the Code of Best Practice for the conduct of State aid control procedures (3).

2.

The purpose of this Notice is to set out the conditions under which the Commission will usually adopt a short-form decision declaring certain types of State support measures compatible with the common market under the simplified procedure and to provide guidance in respect of the procedure itself. When all the conditions set out in this Notice are met, the Commission will use its best endeavours to adopt a short-form decision that the notified measure does not constitute aid or not to raise objections within 20 working days from the date of notification, in accordance with Article 4(2) or Article 4(3) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (4).

3.

However, if any of the safeguards or exclusions set out in points 6 to 12 of this Notice are applicable, the Commission will revert to the normal procedure regarding notified aid described in Chapter II of Regulation (EC) No 659/1999 and will then adopt a full-form decision pursuant to Article 4 and/or Article 7 of that Regulation. In any case, the only legally enforceable time limits are those set out in Article 4(5) and Article 7(6) of Regulation (EC) No 659/1999.

4.

By following the procedure outlined in this Notice, the Commission aims to make Community State Aid control more predictable and efficient, pursuant to the general principles set out in the State Aid Action Plan: Less and Better Targeted State Aid: A Roadmap for State Aid Reform 2005-2009 (5). This Notice thereby also contributes to the simplification strategy launched by the Commission in October 2005 (6). No part of this Notice should be interpreted as implying that a support measure which does not qualify as State aid within the meaning of Article 87 of the Treaty must be notified to the Commission, although Member States remain free to notify such support measures for reasons of legal certainty.

5.

The following categories of measures are in principle suitable for treatment under the simplified procedure:

6.

Since the simplified procedure applies only to aid notified on the basis of Article 88(3) of the Treaty, unlawful aids are excluded. Moreover, due to the specificities of the sectors concerned the simplified procedure will not apply to aid favouring activities in the fishery and aquaculture sectors, activities in the primary production of agricultural products or activities in the processing or marketing of agricultural products. In addition, the simplified procedure will not be applied retroactively to measures pre-notified before 1 September 2009.

7.

In assessing whether a notified aid measure falls into one of the eligible categories set out in point 5, the Commission will ensure that the applicable frameworks or guidelines and/or established Commission decision-making practice on the basis of which the notified aid measure is to be assessed, as well as all relevant factual circumstances, are established with sufficient clarity. Given that the completeness of the notification constitutes a key element for determining whether the simplified procedure is to be applied, the notifying Member State is invited to provide all relevant information, including the precedent decisions relied upon, if appropriate, at the outset of the pre-notification phase (see point 14).

8.

Where the notification form is not complete or contains misleading or incorrect information, the Commission will not apply the simplified procedure. In addition, to the extent that the notification involves novel legal issues of a general interest, the Commission will not normally apply the simplified procedure.

9.

While it can normally be assumed that aid measures falling into the categories set out in point 5 will not raise doubts as to their compatibility with the common market, there may nonetheless be special circumstances which require a closer investigation. In such cases, the Commission may revert to the normal procedure at any time.

10.

Such special circumstances may include in particular: certain forms of aid as yet untested in the Commission's decision-making practice, precedent decisions which the Commission may be in the course of reassessing in the light of recent case-law or developments of the common market, novel technical issues, or concerns as regards the measure's compatibility with other provisions of the Treaty (for example, non-discrimination, the four freedoms, etc.).

11.

The Commission will revert to the normal procedure where the notified aid measure could benefit an undertaking which is subject to an outstanding recovery order following a previous Commission decision declaring an aid unlawful and incompatible with the common market (so-called Deggendorf issue).

12.

Finally, if a third party expresses substantiated concerns about the notified aid measure within the time-limit laid down in point 21 of this Notice, the Commission will revert to the normal procedure (30) and will inform the Member State to that effect.

13.

The Commission has found pre-notification contacts with the notifying Member State beneficial even in seemingly unproblematic cases. Such contacts allow the Commission and the Member States, in particular, to determine at an early stage the relevant Commission instruments or precedent decisions, the degree of complexity which the Commission's assessment is likely to involve and the scope and depth of the information required for the Commission to make a full assessment of the case.

14.

In view of the time constraints of the simplified procedure, the assessment of a State support measure under the simplified procedure is conditional upon the Member State holding pre-notification contacts with the Commission. In this context, the Member State is invited to submit a draft notification form with the necessary supplementary information sheets provided for in Article 2 of Regulation (EC) No 794/2004, and the relevant precedent decisions if appropriate, via the Commission's established IT application. The Member State may also request, at this stage, that the Commission waive the completion of certain parts of the notification form. The Member State and the Commission may also agree, in the context of the pre-notification contact, that the Member State does not need to provide a draft notification form and accompanying information in the pre-notification phase. Such an agreement may be appropriate, for instance, due to the repetitive nature of certain aid measures (for instance the category of aid set out in point 5(c) of this Notice). In this context, the Member State may be invited to proceed directly with the notification where detailed discussion about the envisaged aid measures is not considered necessary by the Commission.

15.

Within two weeks from the receipt of the draft notification form, the Commission services will organise a first pre-notification contact. The Commission will promote the holding of contacts via email or conference calls or, at the specific request of the Member State concerned, organise meetings. Within 5 working days after the last pre-notification contact, the Commission services will inform the Member State concerned whether it considers that the case qualifies prima facie for treatment under the simplified procedure, which information still needs to be provided for the measure to qualify for treatment under that procedure, or whether the case will remain subject to the normal procedure.

16.

The indication by the Commission services that the case concerned can be treated under the simplified procedure implies that the Member State and the Commission services agree prima facie that the information provided in the pre-notification context would, if submitted as a formal notification, constitute a complete notification. The Commission would thus, in principle, be in a position to approve the measure, once formally notified on the basis of a notification form embodying the result of the pre-notification contacts, without a further request for information.

17.

The Member State must notify the aid measure(s) concerned no later than 2 months after it is informed by the Commission services that the measure qualifies prima facie for treatment under the simplified procedure. If the notification includes any changes as compared to the information presented in the pre-notification documents, such changes must be highlighted prominently in the context of the notification form.

18.

The submission of the notification by the Member State concerned triggers the start of the period referred to in point 2.

19.

The simplified procedure does not provide for a specific simplified notification form. Except as regards cases which fall within the category of aid set out in point 5(c) of this Notice, the notification is to be carried out on the basis of the standard notification forms in Regulation (EC) No 794/2004.

20.

The Commission will publish on its website a summary of the notification, based on the information provided by the Member State, in the standard form set out in the Annex to this Notice. The standard form contains an indication that, on the basis of the information provided by the Member State, the aid measure may qualify for the application of a simplified procedure. By requesting the Commission to treat a notified measure under this Notice, the Member State concerned will be considered to agree that the information provided in its notification, which is to be published on the website in the form set out in the Annex to this Notice, is non-confidential in nature. Furthermore, Member States are invited to clearly indicate whether the notification contains any business secrets.

21.

Interested parties will then have 10 working days to submit observations (including a non-confidential version), in particular on circumstances which might require a more thorough investigation. In cases where substantiated competition concerns are raised by interested parties with respect to the notified measure, the Commission will revert to the normal procedure and inform the Member State and the interested party or parties concerned to that effect. The Member State concerned will also be informed of any substantiated concerns and will be given the opportunity to comment on them.

22.

If the Commission is satisfied that the notified measure fulfils the criteria for the simplified procedure (see, in particular, point 5), it will issue a short-form decision. The Commission will thus use its best endeavours to adopt a decision that the notified measure does not constitute aid or a decision not to raise objections pursuant to Article 4(2) or (3) of Regulation (EC) No 659/1999 within 20 working days from the date of notification, unless any safeguard or exclusion referred to in points 6 to 12 of this Notice is applicable.

23.

In accordance with Article 26(1) of Regulation (EC) No 659/1999 the Commission will publish a summary notice of the decision in the Official Journal of the European Union. The short-form decision will be made available on the Commission's website. It will contain a reference to the summary information about the notification as published on the Commission's website at the time of notification, a standard assessment of the measure under Article 87(1) of the Treaty and, where applicable, a statement that the aid measure is declared compatible with the common market because it falls within one or more of the categories set out in point 5 of this Notice, with the applicable category or categories being explicitly identified and a reference to the applicable horizontal instruments and/or precedent decisions included.

24.

Upon request of the Member State concerned, the Commission will apply the principles set out in this Notice to measures notified pursuant to point 17 as from 1 September 2009.

25.

The Commission may review this Notice on the basis of important competition policy considerations or in order to take account of the evolution of State aid law and decision-making practice. The Commission intends to carry out a first review of this Notice at the latest four years after its publication. In this context, the Commission will examine the extent to which specific simplified notification forms should be developed in order to facilitate the implementation of this Notice.