State aid rules for RDI Selection of questions received from...
Transcript of State aid rules for RDI Selection of questions received from...
Regional Policy
State aid rules for RDI
Selection of questions received from Member States
Yvonne SIMON, Legal officer, DG REGIO
Marek PRZEOR, Team Leader, Smart Growth DG REGIO
Disclaimer: The views expressed are those of the authors and cannot be regarded as
stating an official position of the European Commission.
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Question:
"I understand that State aid rules allow a 100%-
financing of non-economic RDI activities.
How do I distinguish economic and non-economic
activities?"
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• Public funding of non-economic activities is not State
aid - but it is necessary to clearly separate from any
economic activities (RDI Framework 2014, para 18)
• Non-economic activities that are clearly separable can
get 100% financing under State aid rules
• On distinction between economic and non-economic: – List of non-economic activities in para 19 RDI Framework 2014
– Paras 12-27 of the draft Notion of Aid Notice referring to Court
judgments and decisional practice
• Economic: "offering goods or services on a market" /
construction of an infrastructure which is commercially
exploited
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Question:
"How do I avoid spill over of public funding for non-
economic activities to economic activities?"
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• Activities need to be clearly separated so that
cross-subsidisation of economic activities is
effectively avoided
• Separation is done by keeping separate accounts
in line with the principles governing the
Transparency Directive 2006/111/EC ("functional
separation")
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Question:
"We expect that our planned research infrastructure
will be used only to a small extent for economic
activities. How should we determine if our research
infrastructure will stay below the 20%-ancillarity
threshold for economic activities?"
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• RDI financing can fall outside State aid rules in its entirety
if the economic use of an research infrastructure is purely
ancillary (Recital 49 GBER 2014, para 20 RDI Framework
2014)
• Requires (among other criteria) that the economic use is
<20% of the relevant annual capacity
• Capacity-share can be determined in several ways, e.g.
number of working hours/days, input-volumes; revenues
are typically not appropriate for measuring capacity
• Reasonable prognosis necessary; monitoring and claw-
back mechanism to address situation where economic
share increases (like Article 26(7) GBER)
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Question:
"What can we do to avoid State aid in technology
transfers?"
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• Technology transfers (from a public entity, or when it
was developed with public resources) to an
undertaking can involve State aid if the transfer is not
adequately remunerated
• Ways for ensuring an adequate remuneration:
– Undertakings pay the market price
– In RDI cooperations the contribution to the joint
research may be sufficient
• Advisable that cooperation contracts/agreements
explicitly mention the remuneration for the (potential)
transfer of technology / IP rights
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Question:
"I heard that the block exemption cannot be applied
to sectorial schemes. Can my innovation scheme fit
under the GBER even if it is target only at a few
sectors?"
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The regional aid section of the GBER does not apply to
sectorial schemes.
This is however not the case for RDI GBER section.
This means:
– The RDI GBER section can apply to sectorial schemes
– For regional aid, a scheme is considered sectorial only
if it applies to less than 5 classes of the NACE Rev.2
statistical classifications (Art. 2(46) GBER 2014)
– Ad-hoc aid is possible under the regional aid section
– State aid notifications can allow for sectorial schemes
under the RAG 2014-2020
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Question:
"Is the requirement for a contribution of at least
10% in Article 26(4) GBER 2014 meant to be 'per
undertaking' or can this be done by several
undertakings together? Can contributions in the
form of land and buildings qualify as contribution
under Article 26(4) GBER 2014?"
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Art.26 GBER 2014 applies to investment aid for
research infrastructures. Access to the research
infrastructure has to be open to several users, but
undertakings which have financed at least 10% if
the investment cost may get preferential access
under more favourable conditions.
• The 10%-contribution applies 'per undertaking'
• Contributions in the form of land and buildings
can qualify for achieving the 10% participation;
need to establish value of the contribution
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Question:
"In Article 28 GBER 2014 the definition of
'innovation advisory services' does not require that
services are related to an 'innovative' technology
transfer. Is it therefore sufficient to verify that the
services are related a technology transfer?"
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• In order to benefit from the block exemption in Article
28 GBER 2014, it is necessary that the support is an
'innovation aid for SMEs'
• Therefore, 'innovation advisory services' related to a
technology transfer requires that the technology
transfer involves an innovation for the benefiting
company. The advisory services as such do not need
to be innovative.
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Question:
"We would like to combine resources from Horizon
2020 with ERDF. What does this mean for the
calculation of the GBER notification thresholds and
for aid intensities?"
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• H2020 are centrally managed Union resources which
do not qualify as State aid. By contrast, ERDF
resources are State resources as MS decide its use
• Where H2020 and ERDF are combined only ERDF
(plus any other national public funding) is taken into
account for calculating notification thresholds or
maximum aid intensities (see Article 8(2) GBER).
• However, most favourable funding rates may not be
exceeded for the same eligible cost. In case of
requirements of own contributions, H2020 resources
do not count as own resources.
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Question:
"There are inconsistencies between State aid rules
and cohesion policy rules.
Some things which can get EU financing are not
allowed by RDI rules. Other things are allowed
under State aid rules but they are not included for
cohesion policy."
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• Cohesion Policy rules and State aid rules are two
set of rules which apply in parallel
• They have different objectives and therefore
there can be differences between scope and
terminology
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Question:
"I need legal certainty for my project. Please tell me
how I should to set it up and draft my support
scheme to have it compliant with State aid rules"
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• MS have flexibility on how to set up projects/schemes.
Commission services may not replace MS' choices.
• For achieving State aid compliance, MAs – should first discuss with their State aid contact points in national
administrations
– TA budget may be used for getting expert advice
– For advise on individual projects, MS may contact COMP for pre-
notification talks
• It is a key part of cohesion policy for 2014-2020 to
increase administrative capacity in MS in the field of
State aid
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Question:
"I have a question about the interpretation of State
aid rules. Where can I get guidance?"
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• Get in touch with the State aid contact point in your
national administration List with contact details of national authorities is likely to be developed
in the context of Working Group between Member States and COMP
• 'eStateAid-WIKI' – New forum where MS' authorities can submit questions on the
interpretation of State aid rules;
– Submitting question is limited to few authorities per MS; 'read-
access' is provided more widely – first step is sending a request to
the national State aid authority
• Other ways of obtaining guidance (external advice, or
contacting COMP, or REGIO) remain of course
possible if this is appropriate for the issue at stake
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Thank you for your attention!