On 16 November 2022, the European Commission published its draft Regulation on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid. Interested parties have until 10 January 2023 to participate in a public consultation (2022 de minimis (europa.eu)).

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 (hereinafter "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 a distribution network 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 should enter into force on 1 January 2024 for a period of six years.

The European Commission did launch a public consultation on the said Regulation on 27 June 2022 (see our article of 7 July 2022).

The main objective of the European Commission is to adapt the de minimis Regulation to the current economic climate, as the present ceiling of EUR 200,000 was set in 2006.

The proposed amendments, which are the subject of this public consultation, are as follows:

  • an increase in the aid ceiling to EUR 275,000 per company and per country over three fiscal years (EUR 135,000 for the road freight transport sector). The European Commission had previously announced an increase in the ceiling to EUR 500,000. This revised ceiling of EUR 275,000 is therefore a step backwards from its initial proposal;
  • the sectoral exclusions (agricultural production, export aid, etc.) remain unchanged;
  • an increase in the ceiling for public loans to EUR 1,375,000 over five years, i.e. EUR 687,500 over 10 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 2,062,500 over five years, i.e. EUR 1,031,250 over 10 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 within six months of the entry into force of the future Regulation, i.e. by 30 June 2024. 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.

Whether you are a public authority or an undertaking, you are invited to submit your comments by 10 January 2023 via the following link: link to the public consultation.

Do not hesitate to participate!

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.