Just in time for Christmas or the turn of the year, the EU Commission has issued its new de minimis regulation. However, not to everyone’s delight: those of you who had an increase in the aid ceiling for de minimis aid on your wish list are now likely to be disappointed. Some things are changing, but the unpopular ceiling remains.
There are also exciting reports from the area of subsidies and public procurement law as well as from the ECJ. The latter has put the national courts in their place and made it unequivocally clear that, despite an investigation still underway in the same matter before the EU Commission, they must take all necessary measures to draw the consequences from any breach of the obligation to suspend implementation of this measure.
We wish you a Merry Christmas and a Happy New Year 2014!
Public Sector Team of KPMG Rechtsanwaltsgesellschaft mbH
Mathias Oberndörfer Dr. Anke Empting
On December 12, 2013, the European Commission published the first calls for proposals based on the European Union’s new framework program for research and innovation – “Horizon 2020”.
The call texts and the current work programs for Horizon 2020 can be viewed on the online “Participant Portal” in the “Funding Opportunities” section. The German portal for Horizon 2020 will also go online at the same time. On horizont2020.de, interested parties can now access all basic information as well as contacts to advisory services such as the contact persons of the National Contact Points (NCP). The new portal provides information, for example, on structure, application and review procedures, and current events. The page will be continuously expanded with current information.
The European Commission has approved aid granted by France in favor of a research and development project in the field of photovoltaic technology on the basis of the EU Framework for State Aid for Research and Development, citing an existing market failure and the absence of undue distortions of competition.
The aid measures are direct grants amounting to EUR 5.9 million and repayable advances amounting to EUR 15.4 million. The funded project will be carried out as a purely private collaboration between a French/international group of companies, a French SME and a French research institute.
The EU Commission examined the measure solely on the basis of the requirements of the EU Framework on State Aid for Research and Development.
It first came to the conclusion that the state subsidies meet the criteria for EU state aid. In the subsequent examination of the possible compatibility of the measure with the internal market, the EU Commission took a two-stage approach and first examined whether the state measure is intended to remedy an existing market failure and is necessary and appropriate for this purpose. In doing so, the EU Commission focused in particular on the current industry-specific market situation and the market shares of the parties involved. Among other things, it found that, on the one hand, the recipient companies did not hold a dominant position and, on the other hand, would not have carried out the cooperation in question in the same form without the state aid, which would have had a detrimental effect on the overall internal market as a result.
Following this proportionality test, the EU Commission finally determined in a second step the distortions of competition to be expected as a result of the aid and weighed these against the expected benefits of granting the aid for the EU’s internal market. The EU Commission came to the conclusion that the distortions of competition caused by the aid were “within bounds” and were acceptable compared with the benefits of the aid.
With this decision, the Commission illustrates its approach to the assessment of state R&D measures that meet the EU State aid criteria but may need to be justified under the EU State aid framework. It becomes clear that such a proof of justification, although costly, is in principle possible due to the concrete and objective specifications of the assessment steps under the EU state aid framework.
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