The Commission Regulation (EU) No 1407/2013 of 18 December 2013 on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid (“de minimis Regulation”) provides, under certain conditions, the possibility for Member States to grant a limited amount of aid qualified as de minimis aid.
Indeed, such aid does not qualify as State aid insofar as it does not affect trade between Member States.
Currently, de minimis aid cannot exceed EUR 200,000 per company and per country over a period of three fiscal years. The aid has the merit of flexibility because it can cover all types of costs, is not submitted to any aid intensity and is subject to limited administrative constraints. Member States may impose any conditions they deem appropriate to achieve the objectives of their measures.
The de minimis Regulation applies to all sectors, apart from the following, which are subject to specific rules:
- the fishing and aquaculture sector;
- the primary production of agricultural products sector and the agricultural products processing and commercialisation sector;
- export-related activities to third countries or Member States, including aid financing the establishment and operation of distribution networks in other Member States or third countries;
- aid contingent upon the use of domestic products in preference to imports;
- aid for the acquisition of road freight vehicles.
As the de minimis Regulation expires on 31 December 2023, the European Commission has launched several public consultations prior to the adoption of the new de minimis Regulation, which enters into force on 1 January 2024 for a period of six years.
The main objective of the European Commission is to adapt the de minimis Regulation to the current economic climate since the present ceiling of EUR 200,000 was set in 2006.
On 13 December 2023, the European Commission adopted the new Regulation on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid: L_202302831EN.000101.fmx.xml (europa.eu)
The main amendments are as follows:
- an increase in the aid ceiling to EUR 300,000 per company and per country over three years on a rolling basis (and no longer per three fiscal years, the ceiling being set at EUR 150,000 for the road freight transport sector.
- the sectoral exclusions (agricultural production, export aid, etc.) remain unchanged;
- an increase in the ceiling for public loans to EUR 1.5 million over five years and to EUR 750,000 over ten years. It should be noted that the gross grant equivalent can be adjusted for shorter loan terms or lower loan amounts, as is currently the case;
- an increase in the ceiling for public guarantees to EUR 2.25 million over five years and to EUR 1.125 million over ten years. In this respect, it is possible to submit an alternative calculation methodology to the European Commission;
- the obligation for Member States to create a central register of de minimis aid from 1 January 2026. The register must be accessible via a website without any restrictions. It must include the identity of the beneficiary, the amount of aid, the authority concerned, the form of aid and the sector concerned. Member States may opt to use the register that will be put in place at the European level.
The European Commission had announced a potential increase in the ceiling to EUR 300,000 from EUR 500,000 after its public consultation of 2019, which is a step backwards from its initial proposal.
The European Commission also adopted the Commission Regulation (EU) 2023/2832 of 13 December 2023 on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid granted to undertakings providing services of general economic interest (SGEI). L_202302832EN.000101.fmx.xml (europa.eu)
This Regulation establishes similar rules as the ones for the “classic” de minimis aid (exclusion of the sectors listed hereabove, calculation of the gross grant equivalent, transparency of the aid, etc.), except for the funding of SGEI.
The former ceiling of EUR 500,000 over a period of three fiscal years is now increased to EUR 750,000 per three years.
The European Commission also imposes the setting up of a central register as from 1 January 2026 or the use of the register provided for at the European level.
The limited increase of both caps must now be implemented in all the various national schemes founded on both European frameworks.
