2010/473/EU: Commission Decision of 15 December 2009 on support measures implemented by Spain in the agricultural sector following the increase in fuel prices (notified under document C(2009) 9971)

• Published date: 04 September 2010
• Subject Matter: concorrenza,aiuti degli Stati,competencia,ayudas concedidas por los Estados,concurrence,aides accordées par les États
• Official Gazette Publication: Gazzetta ufficiale dell’Unione europea, L 235, 04 settembre 2010,Diario Oficial de la Unión Europea, L 235, 04 de septiembre de 2010,Journal officiel de l’Union européenne, L 235, 04 septembre 2010

4.9.2010 EN Official Journal of the European Union L 235/1

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COMMISSION DECISION

of 15 December 2009

on support measures implemented by Spain in the agricultural sector following the increase in fuel prices

(notified under document C(2009) 9971)

(Only the Spanish text is authentic)

(2010/473/EU)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union (TFEU) (1), and in particular the first subparagraph of Article 108(2) thereof,

Having invited interested parties to submit comments in accordance with the above Article, and taking account of such comments,

Whereas:

I. PROCEDURE

(1) By letter of 29 September 2000, the Spanish authorities notified the European Commission, in accordance with Article 108(3) of the TFEU, of aid measures implemented by Spain to support the agricultural sector following the increase in fuel prices. By fax of 20 November 2000, the Commission asked for further information. That information was supplied by letters of 9 January and 13 March 2001.

(2) Most of the measures covered by the notification were transferred to the register of non-notified aid measures (Aid NN 19/2001). Others were entered in the register of notified aid (N 681/A/2000).

(3) By letter of 11 April 2001, served on 25 April 2001, the Commission notified Spain of its decision to initiate the procedure laid down in Article 108(2) of the TFEU concerning some of the measures, and to consider that others did not meet the requirements to fall within the scope of Article 107 of the TFEU.

(4) The Commission’s Decision to initiate the procedure was published in the Official Journal of the European Union (2). The Commission invited interested parties to submit their comments on the measures concerned.

(5) By letters of 6 June and 20 December 2001, Spain sent a series of comments. The Commission also received comments from interested parties. It passed on these comments to Spain, giving it the opportunity to comment on them, and received its comments by letters of 1 and 30 October 2001.

(6) The Commission adopted a final partially negative Decision on 11 December 2002, under Number 2003/293/EC (3).

(7) On 15 April 2003, the Association of Service Station Managers of Madrid (Asociación de Empresarios de Estaciones de Servicio de la Comunidad de Madrid) and the Catalan Federation of Service Stations (Federación Catalana de Estaciones de Servicio) brought an action against the European Commission before the Court of First Instance (4). The complainant requested the partial annulment of the Commission Decision.

(8) In its judgment of 12 December 2006 (5), the Court of First Instance annulled Article 1 of Commission Decision 2003/293/EC, which states that the measures to support agricultural cooperatives laid down by Royal Decree-Law No 10/2000 of 6 October 2000 on emergency support for agriculture, fisheries and transport (6) do not constitute State aid within the meaning of Article 107(1) of the TFEU.

(9) Following the partial annulment of the Decision, the Commission must adopt a new decision concerning the measures referred to in Article 1 of Commission Decision 2003/293/EC as annulled by the Court of First Instance, which it will do by means of this Decision.

(10) With regard to the measures referred to in Article 1 of Commission Decision 2003/293/EC that were not annulled by the Court of First Instance (7) and which therefore remain in full force, they are not affected by this Decision. Consequently, no further reference will be made to these measures.

(11) The measures referred to in Article 2 of Commission Decision 2003/293/EC (8), as well as in Articles 3, 4 and 5 that follow therefrom, are not affected by this Decision either, and remain in full force. Consequently, no further reference will be made to these measures.

II. DESCRIPTION

1. Measures to support agricultural cooperatives

(12) The notified measures to support agricultural cooperatives are provided for in Article 1 of Royal Decree-Law No 10/2000 on emergency support for agriculture, fisheries and transport (9), which amends Law No 27/1999 of 16 July 1999 on cooperatives (10) and Law No 20/1990 of 19 December 1990 on the tax arrangements applying to cooperatives (11).

(13) On the one hand, it abolishes the maximum limit of 50 % of turnover imposed on cooperatives for their transactions with non-member third parties without losing their preferential tax treatment as granted by Law No 20/1990 (Article 13(10)) for deliveries of B diesel by agricultural cooperatives to non-member third parties.

(14) On the other hand, Law No 34/1998 of 7 October 1998 on hydrocarbons (12) has also been amended to waive the requirement that agricultural cooperatives must set up a legal entity to which the general tax arrangements apply if they carry out deliveries of B diesel to non-member third parties.

(15) The principal objective of these measures was, according to the Spanish authorities, to offset the increase in fuel prices which had hit the agricultural sector hard at the time the measures were adopted. Thus, in the statement of reasons of Royal Decree-Law No 10/2000, it is stated that ‘diesel used for agriculture, fisheries and transport, like fuels for other uses, is experiencing price increases following the rise in the price of oil and the marked appreciation of the dollar against the euro’. The Spanish Government, ‘aware of the real significance of this crisis caused by external factors, analysed the scale of the economic impact in the agricultural and fisheries sector with organisations that best represented these sectors, and obtained overwhelming consensus on the adoption of a package of measures designed to offset the negative effect of the increase in oil prices and to increase the liberalisation of the sectors’.

(16) With regard to the scope of the Laws amended by the notified measure, a more detailed description is necessary.

(17) Law No 27/1999 on cooperatives is the instrument which governs cooperative activity in Spain. It defines the concept of a cooperative society, classifies the types of cooperative society and regulates their formation. Its aims also include the promotion and development of cooperative societies and it describes their forms of association, whilst facilitating the creation of such groups, with the aim of stimulating the cooperative movement. Article 93 of the Law is devoted to agricultural cooperatives, and in particular their purpose and the activities that they may engage in.

(18) Articles 16(5), 18(2), 33 and 34 of Law No 20/1990 establish rules concerning the taxable amount and the tax arrangements for Spanish cooperatives, including agricultural cooperatives. The Law makes a distinction between ‘protected cooperatives’ and ‘specially protected cooperatives’. ‘Protected cooperatives’ are cooperatives which comply with the principles and provisions arising from the general law on cooperatives or the laws of Autonomous Communities. Workers cooperatives, agricultural cooperatives, community land cooperatives, fishing cooperatives and consumer and user cooperatives are ‘specially protected cooperatives’. The Law states that the reason why specially protected cooperatives are afforded the highest level of protection is due to the nature of the sectors concerned, the economic capacity of their members and their closer alignment with the principle of mutuality.

(19) For the purposes of establishing the taxable amount for cooperatives, the results of cooperative activities (transactions with members) and the results of extra-cooperative activities (transactions with non-members) are assessed separately and are not taxed in the same manner. Therefore, cooperatives should keep separate accounts for the two types of activity.

(20) The tax regime for agricultural cooperatives as ‘specially protected cooperatives’ is identical to that of protected cooperatives, except in the cases mentioned below: — Company tax: the purpose of this tax is to raise a charge on profits made by companies and other legal entities. The taxable amount for cooperative results (transactions with members) attracts a reduced rate of 20 %, while the taxable amount for extra-cooperative results (transactions with non-members or third parties) is subject to the general rate of 35 % (Article 33(2)). Moreover, there is a 50 % rebate on financing the mandatory reserve (Article 16(5)) (13) and a 100 % deduction on allocations to the apprenticeship and training reserve (Article 18(2)) (14). With regard solely to specially protected cooperatives, they are also entitled to a 50 % rebate on their tax bill, defined as the algebraic sum of the amounts resulting from applying the corresponding tax rates to the cooperative and extra-cooperative taxable amounts, whether positive or negative, that sum being the amount payable when positive (Article 34(2)). Finally, they are also free to decide on the depreciation of their new physical assets acquired during the three years following the date of their registration in the Register of Cooperatives. — Tax on capital transfers and documented legal acts: this indirect form of taxation is designed to be charged on different legal acts such as taxable capital transfers, documented legal acts or certain company transactions (for example, corporate financing such as increasing share capital). Provision is made for an exemption from this tax on incorporation, capital increases, fusions and divisions, taking out and cancelling loans (including long-term bonds), the acquisition of goods and rights under their apprenticeship and training reserves for the fulfilment

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