| Official Journal of the European Union
| L 201/16
COMMISSION REGULATION (EC) No 736/2008
of 22 July 2008
on the application of Articles 87 and 88 of the Treaty to State aid to small and medium-sized enterprises active in the production, processing and marketing of fisheries products
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 994/98 of 7 May 1998 on the application of Articles 92 and 93 of the Treaty establishing the European Community to certain categories of horizontal State aid (1), and in particular Article 1(1)(a)(i) thereof,
Having published a draft of this Regulation (2),
Having consulted the Advisory Committee on State aid,
| Regulation (EC) No 994/98 empowers the Commission to declare, in accordance with Article 87 of the Treaty, that, under certain conditions, aid to small and medium-sized enterprises (SMEs) is compatible with the common market and not subject to the notification requirement of Article 88(3) of the Treaty.
| Commission Regulation (EC) No 70/2001 of 12 January 2001 on the application of Articles 87 and 88 of the EC Treaty to State aid to small and medium-sized enterprises (3) does not apply to activities linked to the production, processing or marketing of fishery and aquaculture products covered by Council Regulation (EC) No 104/2000 of 17 December 1999 on the common organisation of the markets in fishery and aquaculture products (4).
| The Commission has applied Articles 87 and 88 of the Treaty in numerous decisions to SMEs active in the production, processing and marketing of fisheries products and has also stated its policy, most recently in the Guidelines for the examination of State aid to fisheries and aquaculture (5) (hereafter referred to as the ‘fisheries guidelines’). In the light of the Commission’s considerable experience in applying those Articles to SMEs active in the production, processing and marketing of fisheries products, it is appropriate, with a view to ensuring efficient supervision and simplifying administration without weakening Commission monitoring, that the Commission should make use of the powers conferred by Regulation (EC) No 994/98 also for SMEs active in the production, processing and marketing of fisheries products, in so far as Article 89 of the Treaty has been declared applicable to such products.
| The compatibility of State aid in the fisheries sector is assessed by the Commission on the basis of the objectives of both the Competition Policy and the Common Fisheries Policy (CFP).
| This Regulation should cover types of aid granted in the fisheries sector which have been systematically approved by the Commission for many years. This aid does not require a case-by-case assessment of its compatibility with the common market from the Commission, provided that it complies with the conditions laid down in Council Regulation (EC) No 1198/2006 of 27 July 2006 on the European Fisheries Fund (6) and Commission Regulation (EC) No 498/2007 of 26 March 2007 laying down detailed rules for the implementation of Council Regulation (EC) No 1198/2006 on the European Fisheries Fund (7) and with certain other conditions. Although Regulation (EC) No 1198/2006 has only been in force from 4 September 2006, the Commission has gained on the basis of existing fisheries guidelines sufficient experience in applying similar conditions for the type of measures concerned in order to establish that the conditions of that Regulation are sufficiently accurate to justify not requiring case-by-case assessment.
| This Regulation should be without prejudice to the possibility for Member States of notifying aid to SMEs active in the production, processing and marketing of fisheries products. Such notifications should be assessed by the Commission in the light of this Regulation and on the basis of the fisheries guidelines.
| Aid that Member States intend to grant in the fisheries sector but which does not fall within the scope of this Regulation, or of other Regulations adopted pursuant to Article 1 of Regulation (EC) No 994/98, should remain subject to the notification requirement of Article 88(3) of the Treaty. Such aid will be assessed in the light of this Regulation and the fisheries guidelines.
| This Regulation should exempt any aid that meets all the requirements it lays down, and any aid scheme, provided that any aid that could be granted under such scheme meets all the relevant requirements of this Regulation. Individual aid granted under an aid scheme and ad-hoc aid should contain an express reference to this Regulation.
| In the interests of coherence with Community-financed support measures, the ceilings of aid covered by this Regulation should be equal to those fixed for the same kind of aid in Annex II to Regulation (EC) No 1198/2006.
| It is essential that no aid is granted in circumstances where Community law, and in particular rules of the Common Fisheries Policy, are not complied with. An aid can therefore only be granted by a Member State in the fisheries sector if the measures financed and their effects comply with Community law. Before granting any aid, Member States should ensure that beneficiaries of State aid comply with the rules of the Common Fisheries Policy.
| With a view to ensuring that aid is proportionate and limited to the amount necessary, thresholds should, whenever possible, be expressed in terms of aid intensities in relation to a set of eligible costs. For the purpose of calculating aid intensities, aid payable in several instalments should be discounted to its value at the moment of granting. The interest rate to be used for discounting purposes and for calculating the aid amount in aid not taking the form of a grant, should be the reference rate applicable at the time of grant as laid down in the Communication from the Commission on the revision of the method for setting the reference and discount rates (8).
| In view of the need to strike the appropriate balance between minimising distortions of competition in the aided sector and the objectives of this Regulation, it should not exempt individual grants which exceed a fixed maximum amount, whether or not made under an aid scheme exempted by this Regulation.
| This Regulation should not apply to export-related activities or aid favouring domestic over imported products. In particular, it should not apply to aid financing the establishment and operation of a distribution network in other countries. Aid towards the cost of participating in trade fairs, or of studies or consultancy services needed for the launch of a new or existing product on a new market should not normally constitute export aid.
| Aid granted to undertakings in difficulty within the meaning of the Community guidelines on State aid for rescuing and restructuring firms in difficulty (9) should be assessed under those guidelines in order to avoid their circumvention. Aid to such undertakings should therefore be excluded form the scope of this Regulation. In order to reduce the administrative burden for Member States, when granting aid covered by this Regulation, the definition of what is to be considered as an undertaking in difficulty should be simplified as compared to the definition used in those guidelines. Moreover, SMEs are incorporated since less than three years should not be considered as being in difficulty for this period for the purposes of this Regulation, unless it fulfils the criteria under its domestic law for being the subject of collective insolvency proceedings. These simplifications should be without prejudice to the qualification of these SMEs under those guidelines as regards aid not covered by this Regulation, which remains subject to the full definition provided for in those guidelines.
| The Commission has to ensure that authorised aid does not alter trading conditions in a way contrary to the general interest. Therefore, aid in favour of a beneficiary which is subject to an outstanding recovery order following a previous Commission decision declaring an aid illegal and incompatible with the common market, should be excluded from the scope of this Regulation. As a consequence, any ad-hoc aid paid out to such a beneficiary and any aid scheme not containing a provision explicitly excluding such beneficiaries remains subject to the notification requirements of Article 88(3) of the Treaty. This provision should not affect the legitimate expectations of beneficiaries of aid schemes which are not subject to outstanding recovery orders.
| In order to eliminate differences that might give rise to distortions of competition and to facilitate coordination between different Community and national initiatives concerning SMEs, the definition of ‘small and medium-sized enterprises’ used in this Regulation should be that defined in Annex I to Regulation (EC) No 70/2001.
| For the purpose of transparency, equal treatment and effective monitoring, this Regulation should apply only to aid which is transparent. Transparent aid is aid for which it is possible to calculate precisely the gross grant equivalent ex ante without a need to undertake a risk assessment. Aid comprised in loans, in particular, should be considered as transparent where the gross grant equivalent has been calculated on the basis of the reference rate as laid down in the Communication from the Commission on the revision of the method for setting the reference and discount rates (10). Aid comprised in fiscal measures should be considered as transparent where the measure provides