2011/678/: Commission Decision of 27 July 2011 concerning the State aid for financing screening of transmissible spongiform encephalopathies (TSE) in bovine animals implemented by Belgium (State aid C 44/08 (ex NN 45/04)) (notified under document C(2011) 5457)

• Celex Number: 32011D0678
• Coming into Force: 19 October 2011
• End of Effective Date: 31 December 9999
• ELI: http://data.europa.eu/eli/dec/2011/678/oj
• Published date: 19 October 2011
• Date: 27 July 2011
• Official Gazette Publication: Gazzetta ufficiale dell’Unione europea, L 274, 19 ottobre 2011,Journal officiel de l’Union européenne, L 274, 19 octobre 2011,Diario Oficial de la Unión Europea, L 274, 19 de octubre de 2011

19.10.2011 EN Official Journal of the European Union L 274/36

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COMMISSION DECISION

of 27 July 2011

concerning the State aid for financing screening of transmissible spongiform encephalopathies (TSE) in bovine animals implemented by Belgium (State aid C 44/08 (ex NN 45/04))

(notified under document C(2011) 5457)

(Only the French and Dutch texts are authentic)

(2011/678/EU)

THE EUROPEAN COMMISSION,

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

Having invited interested parties to submit their comments in accordance with that Article (2),

Whereas:

1. PROCEDURE

(1) Following complaints received in January and February 2004, the Commission undertook a preliminary examination of the aid granted by Belgium to cover the costs of screening tests for BSE in bovine animals.

(2) Following those complaints, the Commission sent a letter to the Belgian authorities on 27 January 2004, asking for information on the measure in question. At the same time, an aid measure to finance screening for TSE in animals was notified by the Belgian authorities in accordance with Article 108(3) of the Treaty on the Functioning of the European Union (TFEU) (by letter of 23 January 2004, registered on 28 January 2004) and entered under the number N 54/04.

(3) The Belgian authorities provided written information to the Commission by letters of 6 February 2004 and 14 May 2004, registered on 11 February 2004 and 19 May 2004 respectively.

(4) By letter of 19 July 2004 the Commission informed Belgium that the measure had been transferred to the register of non-notified aid under the number NN 45/04, since it had become apparent that part of the funds had already been paid out.

(5) An informal meeting between the Belgian authorities and the Commission took place on 1 September 2004.

(6) Additional information was provided by the Belgian authorities by letters of 16 September 2004 and 22 February 2007, registered on 20 September 2004 and 22 February 2007 respectively.

(7) By letter of 26 November 2008 the Commission informed Belgium of its decision to initiate the procedure provided for in Article 108(2) of the TFEU in respect of that measure. The decision was published in the Official Journal of the European Union (3). The Commission invited interested parties to submit their comments on the measure in question.

(8) By letter of 19 December 2008, registered on 26 December 2008, Belgium asked for an extension to the deadline for reply. That extension was granted by letter of 13 January 2009. Belgium provided comments by letter of 25 February 2009, registered on 6 March 2009.

(9) The Commission did not receive any comments from interested parties.

(10) By letter of 17 July 2009 the Commission asked Belgium additional questions relating to the comments submitted by Belgium. By letter of 4 September 2009, registered on 8 September 2009, Belgium asked for an extension to the deadline for reply. Belgium’s reply reached the Commission by letter of 16 October 2009, registered on 20 October 2009.

(11) Two meetings took place between the Belgian authorities and the Commission, on 2 October 2009 and 30 October 2009.

(12) Following those meetings, additional information was sent by Belgium on 14 December 2009, registered on 16 December 2009. Following the simultaneous enquiry by the Belgian competition authorities concerning possible agreements between the laboratories, reply deadline extension requests were submitted by Belgium on 21 January 2010, 29 September 2010 and 17 January 2011. Those extensions were granted by the Commission.

(13) A last request for information was sent by the Commission on 22 February 2011, to which the Belgian authorities responded by letter of 6 April 2011. The Commission granted an additional extension to enable Belgium to answer the questions pending the outcome of the enquiry by the Belgian competition authorities.

(14) The Belgian authorities replied by letter of 19 May 2011, registered on 25 May 2011.

2. DESCRIPTION

2.1. Background (4)

(15) In January 2004 the Commission received a complaint concerning a draft royal decree which would have introduced a parafiscal charge to finance BSE tests.

(16) Following that complaint, the Commission asked the Belgian authorities for explanations. In response the Belgian authorities stated that, since 1 January 2001, BSE tests had been compulsory for bovine animals aged more than 30 months and for those aged more than 24 months undergoing emergency slaughter (5). They also notified a draft royal decree relating to the financing of screening for TSE in animals (hereinafter the TSE royal decree). That draft royal decree was registered under the number N 54/04. The Belgian authorities stated that this new draft royal decree was an amendment to the draft royal decree notified in 2001 by Belgium and approved by the Commission by Decision N 21/02 of 13 February 2002 (6), as well as to another draft discussed informally with the Commission in 2003. Neither of those two drafts had been implemented, however, and the decree notified in 2004 constituted their recasting.

(17) It is clear from the information submitted by Belgium that the public purse had accepted, since 1 January 2001 (7), the costs of BSE tests (i.e. the costs of sampling and analysis). From 1 January 2002 onwards the costs of these tests have been prefinanced by the Belgian Intervention and Refund Bureau (BIRB), pending a political decision on the system of financing to be chosen.

(18) Following certain comments made by the Commission regarding the notified draft royal decree (N 54/04), in May 2004 the Belgian authorities submitted a new draft royal decree which attempted to respond to the comments made by the Commission and which provided for a system of fees of EUR 10,70 per bovine presented for slaughter from 1 January 2003 onwards and having to undergo a rapid BSE test. The Belgian authorities referred to the fact that the tests carried out and prefinanced during 2002 had been entirely financed by indirect State aid, i.e. by parafiscal charges. The Belgian authorities also stated that a maximum amount of EUR 40 per test had been financed from 1 January 2003 onwards through parafiscal charges. The Belgian authorities provided detailed tables showing the cost of the BSE tests from 2003 onwards and a forecast of financing those tests by parafiscal charges and fees. The Belgian authorities stated that the dates scheduled for implementing the financing scheme were 1 July 2004 for the fees and 1 January 2005 for the parafiscal charges.

(19) As the notified draft royal decree states that aid had already been granted and taxes levied since 1 January 2002, the measure was registered as non-notified on 19 July 2004 under number NN 45/04. The notification registered under the number N 54/04 was withdrawn by Belgium.

(20) It follows from the information submitted by Belgium in 2004 that the general intention was to prefinance the tests, the amount being refunded subsequently, the idea being to allocate part of the amount of the contributions to refunding the costs of the prefinanced tests.

(21) In their letter of 16 September 2004 the Belgian authorities referred to a new draft royal decree in which the idea of a fee of EUR 10,70 per bovine tested was maintained for the future. The whole amount stated in that new draft royal decree would serve to finance BSE tests on bovine animals which would be slaughtered from the entry into force of that draft. The reimbursement of the amounts exceeding the EUR 40 authorised by the Community guidelines for State aid concerning TSE tests, fallen stock and slaughterhouse waste (8) of 24 December 2002 (the TSE guidelines), and which were prefinanced after 1 January 2003, would be the subject of another draft which would be submitted to the Commission and which would address the reimbursement of that prefinancing. That royal decree was adopted on 15 October 2004 (9) and entered into force on 1 December 2004.

(22) According to the information provided by the Belgian authorities, the total amount of prefinanced costs beyond the maximum amount of EUR 40 for the period from 1 January 2003 (10) to 30 June 2004 comprises EUR 15 237 646. According to the Belgian authorities, from 30 June 2004 the maximum amount of EUR 40 has been complied with (11).

(23) In the same letter of 16 September 2004 the Belgian authorities provided two information sheets in accordance with Article 19 of Commission Regulation (EC) No 1/2004 of 23 December 2003 on the application of Articles 87 and 88 of the EC Treaty to State aid to small and medium-sized enterprises active in the production, processing and marketing of agricultural products (12).

(24) These two measures were the subject of two exemptions, under numbers XA 53/04 and XA 54/04. As stated in points 19 et seq. of the decision initiating the formal investigation procedure, the measure exempted under number XA 53/04 covers the prefinancing of the BSE tests (13) with a maximum aid intensity of EUR 40 per test, and was implemented on 1 January 2003. The legal basis for this measure is the Law of 27 December 2002 on the general budget of expenditure for 2003. The measure exempted under number XA 54/04 provides for a maximum aid intensity of EUR 33,38 per test, and was implemented on 15 October 2004. This aid measure is of indeterminate duration. Its legal basis is the Law of 27 December 2003 on the general budget of expenditure for 2004.

(25) In the

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