Comparative overview of approaches to transparency

• Author: Michie, Rona; Wishlade, Fiona; Mendez, Carlos
• Pages: 3-12

Fact-finding study on the GBER transparency re quirement

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2. COMPARATIVE OVERVIEW OF APPROACHES TO TRANSPARENCY5

2.1. LEGAL SET-UP

The extent to which domestic legislative provisions are used to assure compliance with the State

aid transparency requirements varies widely.

In around one third of Member States, there is no specific State aid legislation. Instead, Member

States deem that the direct applicability of the GBER is sufficient, but provide training and

guidance (which may or may not be published) to support awarding bodi es in meeting their

obligations. This approach is typical in pre-2004 Member States that do not operate central State

aid registers (BE, DK, DE, IE, FR, LU, AT, PT).

The remaining countries have enacted legislation, but the nature of this varies widely and it is not

always specific to the transparency requirement. For example:

• Many pre-2004 countries have basic State aid laws which predate accession. Prior to

accession, such legislation provided national competi tion authorities with functions

analogous to those of the European Commission; post accession, these laws remain in

place, amended to take account of EU membership and sometimes supplemented by

secondary legislation (e.g. CZ, EE, CY, SI).

• Others have secondary legislation which may derive from a basic State aid law or from

other legislation (e.g. HR, HU).

• In some countries (e.g. EE) existing legislation was sufficient to enable the transparency

obligations to be met, while in others (e.g. GR, LV) new legislation was introduced

specifically to fulfil them.

• Some countries have legislation that provides for national registers, whether de minimis

support only or comprehensive registers, and whether or not they substitute for TAM

(e.g. ES, IT, PL, RO, SK).

• The UK is a special case and under the 2018 Withdrawal Act the UK has fully incorporated

EU State aid obligations into domestic law for the duration of the transitional period.

It is difficult to draw firm conclusions for transparency compliance from these very disparate

arrangements. The form and timing of legislative texts are not decisive as to the rigour with

which the transparency requirements are implemented, but rather a reflection of wider domestic

institutional contexts, including the timing of EU acce ssion: a number of countries did adopt new

legislation in order to implement the transparency obligation, but for many no domestic legal

provisions were made, or in some cases no additional ones were needed.

Also important, a number of respondents emphasised that the legislative texts for GBER-based

aid schemes incorporate the transparency requi rement. As a result, even in the absence of

overarching legislation or specific rules on transparency, the reporting requirements may be

5 Full country profiles are provided in A nnex A.