State aid rules for RDI Selection of questions received from ...ec.europa.eu/regional_policy/sources/conferences/state...Regional Policy State aid rules for RDI Selection of questions

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.

2

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?"

3

• 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

4

Question:

"How do I avoid spill over of public funding for non-

economic activities to economic activities?"

5

• 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")

6

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?"

7

• 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)

8

Question:

"What can we do to avoid State aid in technology

transfers?"

9

• 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

10

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?"

11

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

12

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?"

13

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

14

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?"

15

• 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.

16

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?"

17

• 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.

18

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."

19

• 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

20

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"

21

• 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

22

Question:

"I have a question about the interpretation of State

aid rules. Where can I get guidance?"

23

• 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!