Commission Regulation (EU) 2022/2472 of 14 December 2022 declaring certain categories of aid in the agricultural and forestry sectors and in rural areas compatible with the internal market in application of Articles 107 and 108 of the Treaty on the Functioning of the European Union (Text with EEA relevance)

CHAPTER I

Common provisions

Article 1

Scope

This Regulation shall apply to the following categories of aid:

(a) aid in favour of micro, small and medium sized enterprises (SMEs): (i) active in the agricultural sector, namely primary agricultural production, the processing of agricultural products and the marketing of agricultural products, with the exception of Articles 14, 15, 16, 18, 23 and 25 to 31, which shall only apply to SMEs active in primary agricultural production; (ii) active in non-agricultural activities in rural areas falling outside the scope of Article 42 of the Treaty, insofar as such aid is granted in accordance with Regulation (EU) 2021/2115 and is either co-financed by the European Agricultural Fund for Rural Development (‘EAFRD’) or granted as additional national financing for such co-financed measures. By derogation, this Regulation shall apply to aid to municipalities benefiting directly or indirectly from CLLD projects, pursuant to Articles 60 and 61 of this Regulation;

(b) aid for environmental protection in agriculture as referred to in Articles 33, 34 and 35, which shall only apply to undertakings active in primary agricultural production;

(c) aid for investments for the conservation of cultural and natural heritage located on agricultural holdings and in forests;

(d) aid in favour of making good the damage caused by natural disasters in the agricultural sector;

(e) aid for research, development and innovation in the agricultural and forestry sectors;

(f) aid in favour of forestry.

This Regulation shall not apply to:

(a) aid schemes referred to in Articles 14, 17, 41 to 44 and 46, aid schemes referred to in Articles 49 and 50, if they fulfil the conditions of Article 12, from six months after their entry into force. However, the Commission may decide that this Regulation shall continue to apply to an aid scheme for longer than six months, after having assessed the relevant evaluation plan notified by the Member State to the Commission. When submitting the evaluation plans, Member States shall also submit all the information necessary for the Commission to carry out an assessment of the evaluation plans and to take a decision;

(b) any alterations of schemes referred to in point (a) other than modifications which do not affect the compatibility of the aid scheme under this Regulation or do not significantly affect the content of the approved evaluation plan;

(c) aid to export-related activities towards third countries or Member States, namely aid directly linked to the quantities exported, to the establishment and operation of a distribution network or to other current costs linked to export activity;

(d) aid contingent upon the use of domestic over imported goods.

This Regulation shall not apply to:

(a) aid schemes which do not explicitly exclude the payment of individual aid in favour of an undertaking which is subject to an outstanding recovery order following a previous Commission decision declaring an aid granted by the same Member State illegal and incompatible with the internal market, with the exception of: (i) aid schemes to make good the damage caused by natural disasters in accordance with Article 37; (ii) aid schemes for community-led local development (‘CLLD’) or European Innovation Partnership for agricultural productivity and sustainability (‘EIP’) Operational Group projects in accordance with Articles 40 and 61;

(b) ad hoc aid to an undertaking referred to in point (a).

This Regulation shall not apply to aid to undertakings in difficulty with the exception of aid granted:

(a) for information actions in the agricultural and forestry sectors in accordance with Articles 21 and 47;

(b) for promotion measures in the form of publications aimed at raising awareness of agricultural products among the wider public in accordance with Article 24(2), point (b);

(c) to compensate for the costs of the prevention, control and eradication of animal diseases and plant pests in accordance with Article 26(8) and (9);

(d) to cover the costs of the removal and destruction of fallen stock in accordance with Article 27(2), points (c), (d) and (e), and Article 28(3), point (d);

(e) for disadvantages related to Natura areas 2000 in accordance with Article 33;

(f) to make good the damage caused by natural disasters in accordance with Article 37;

(g) for undertakings participating in or benefitting from CLLD projects and EIP Operational Group projects, in accordance with Articles 40 and 61;

(h) in the following cases, provided that the undertaking became an undertaking in difficulty due to losses or damages caused by the event in question: (i) to make good the damage caused by an adverse climatic event which can be assimilated to a natural disaster in accordance with Article 25; (ii) to make good the damage caused by animal diseases and plant pests in accordance with Article 26(9) and Article 26(10); (iii) to make good the damage caused by protected animals in accordance with Article 29; (iv) for the restoration of damage to forests in accordance with Article 43(2), point (d).

This Regulation shall not apply to aid which entails, by itself, by the conditions attached to it or by its financing method, a non-severable violation of Union law, in particular:

(a) aid where the grant of aid is subject to the obligation for the beneficiary to use nationally produced goods or national services;

(b) aid restricting the possibility for the beneficiaries to exploit the research, development and innovation results in other Member States.

Article 2

Definitions

For the purpose of this Regulation the following definitions shall apply:

(1) ‘ad hoc aid’ means aid not granted on the basis of an aid scheme;

(2) ‘adverse climatic event which can be assimilated to a natural disaster’ means unfavourable weather conditions such as frost, storms and hail, ice, heavy or persistent rain or severe drought which destroy, in the case of agriculture, more than 30 % of the average production calculated on the basis of the preceding three-year or four-year period or of the average production calculated on the basis of the preceding five-year or eight-year period, excluding the highest and the lowest entry; in the case of forestry, more than 20 % of the forestry potential;

(3) ‘advice’ means complete advice given in the framework of one and the same contract;

(4) ‘agricultural activity’ means an activity as determined by a Member State in its CAP Strategic Plan in accordance with Article 4(2) of Regulation (EU) 2021/2115;

(5) ‘agricultural area’ means any area as determined by a Member State in its CAP Strategic Plan in accordance with Article 4(3) of Regulation (EU) 2021/2115;

(6) ‘agricultural holding’ means a unit comprising of land, premises and facilities used for primary agricultural production;

(7) ‘agricultural product’ means the products listed in Annex I to the Treaty, except the fishery and aquaculture products listed in Annex I to Regulation (EU) No 1379/2013 of the European Parliament and of the Council (⁴);

(8) ‘agricultural sector’ means all undertakings active in primary agricultural production, processing and marketing of agricultural products;

(9) ‘agroforestry systems’ means land use systems where trees are grown in combination with agriculture on the same land;

(10) ‘aid’ means any measure fulfilling all the criteria laid down in Article 107(1) of the Treaty;

(11) ‘aid granted in the framework of a CAP Strategic Plan’ means support granted in accordance with Regulation (EU) 2021/2115 either as aid co-financed by the EAFRD or as additional national financing to such co-financed aid;

(12) ‘aid intensity’ means the gross aid amount expressed as a percentage of the eligible costs, before any deduction of tax or other charge;

(13) ‘aid scheme’ means any act on the basis of which, without further implementing measures being required, individual aid awards may be made to undertakings defined within the act in a general and abstract manner and any act on the basis of which aid which is not linked to a specific project may be granted to one or several undertakings for an indefinite period of time and for an indefinite amount;

(14) ‘arm’s length’ means that the conditions of the transaction between the contracting parties do not differ from those which would be stipulated between independent undertakings and contain no element of collusion. Any transaction that results from an open, transparent and unconditional procedure is considered as meeting the arm’s length principle;

(15) ‘biosecurity measures’ means management and physical measures designed to reduce the risk of introduction, development and spread of diseases to, from and within the following: (a) an animal population; (b) an establishment, zone, compartment, means of transport or any other facilities, premises or location;

(16) ‘breeding book’ means book as provided for in Article 2, point (12), of Regulation (EU) 2016/1012 of the European Parliament and of the Council (⁵);

(17) ‘CAP Strategic Plan’ means CAP Strategic Plan as referred to in Article 1(1), point (c), of Regulation (EU) 2021/2115;

(18) ‘capitalised works’ means works, undertaken by a farmer personally or by the farmer’s workers on the farm, that create an asset;

(19) ‘carbon farming schemes’ means aid schemes related to land management practices resulting in the increase of carbon storage in living biomass, dead organic matter and soils by enhancing carbon capture and/or reducing the release of carbon to the atmosphere;

(20) ‘catastrophic event’ means an unforeseen event of biotic or abiotic nature caused by human action that leads to important disturbances of forest structures, eventually causing important economic damage to the forest sectors;

(21) ‘date of granting the aid’ means the date when the legal right to receive the aid is conferred on the beneficiary under the applicable national legal regime;

(22) ‘control and eradication measures’ means measures regarding animal diseases for which a competent authority of the Member State has formally recognised an outbreak, or regarding plant pests or invasive alien species for which a competent authority has formally acknowledged their presence;

(23) ‘evaluation plan’ means a document covering one or more aid schemes and containing at least the following aspects: the objectives to be evaluated, the evaluation questions, the result indicators, the envisaged method to conduct the evaluation, the data collection requirements, the proposed timing of the evaluation including the date of submission of the interim and of the final evaluation reports, the description of the independent body that will carry out the evaluation or the criteria that will be used for its selection and the modalities for making the evaluation publicly available;

(24) ‘fallen stock’ means animals which have been killed by euthanasia with or without a definite diagnosis or which have died, including stillborn and unborn animals, on a farm or on any premises or during transport, but which have not been slaughtered for human consumption;

(25) ‘fast growing trees’ means a short rotation forest, where the minimum time before felling is set to be not less than 8 years and the maximum time before felling is set not to exceed 20 years;

(26) ‘fiscal successor scheme’ means a scheme in the form of tax advantages which constitutes an amended version of a previously existing scheme in the form of tax advantages and which replaces it;

(27) ‘fixed costs arising from participation in quality scheme’ means the costs incurred for entering a supported quality scheme and the annual contribution for participating in that quality scheme, including, where necessary, expenditure on checks required to verify compliance with the specifications of the quality scheme;

(28) ‘food based biofuel’ means a biofuel produced from food and feed crops, as defined in Directive (EU) 2018/2001;

(29) ‘foodstuffs’ means foodstuffs which are not agricultural products and which are listed in Annex I to Regulation (EU) No 1151/2012 of the European Parliament and of the Council (⁶);

(30) ‘gross grant equivalent’ means the amount of the aid if it had been provided in the form of a grant to the beneficiary, before any deduction of tax or other charges;

(31) ‘individual aid’ means: (a) ad hoc aid; (b) awards of aid to individual beneficiaries on the basis of an aid scheme;

(32) ‘intangible assets’ means assets that do not have a physical or financial embodiment such as patents, licences, know-how or other intellectual property;

(33) ‘investments to comply with a Union standard’ means investments made to comply with a Union standard after the expiry of the transitional period provided for in Union legislation;

(34) ‘large enterprises’ means undertakings not fulfilling the criteria laid down in Annex I;

(35) ‘marketing of agricultural products’ means holding or displaying with a view to sale, offering for sale, delivery or any other manner of placing on the market, except the first sale by a farmer to resellers or processors and any activity preparing a product for such first sale; a sale by a farmer to final consumers is considered as marketing of agricultural products if it takes place in separate premises or facilities reserved for that purpose;

(36) ‘mutual funds’ means a scheme accredited by a Member State in accordance with its national law for affiliated farmers to insure themselves, whereby compensation payments are made to affiliated farmers who experience economic losses;

(37) ‘Natura 2000 areas’ means special agriculture or forest areas as referred to in Article 3 of Directive 92/43/EEC and in Article 3 of Directive 2009/147/EC;

(38) ‘natural disasters’ means earthquakes, avalanches, landslides and floods, tornadoes, hurricanes, volcanic eruptions and wild fires of natural origin;

(39) ‘non-productive investment’ means investment which does not lead to a significant increase in the value or profitability of the holding;

(40) ‘operations prior to industrial processing’ means felling, dismembering, stripping, cutting up, storage, protective treatment and drying of wood and all other working operations prior to the industrial sawing of wood at a sawing mill; as well as sawmilling where the maximum processing capacity is 20,000 m³ roundwood input for sawmilling per year;

(41) ‘other adverse climatic events’ means unfavourable weather conditions which do not fall within the definition of adverse climatic event which can be assimilated to a natural disaster;

(42) ‘outermost regions’ means the regions referred to in Article 349, first paragraph, of the Treaty;

(43) ‘plant pest’ means: any species, strain or biotype of plant, animal or pathogenic agent injurious to plants or plant products;

(44) ‘primary agricultural production’ means the production of products of the soil and of stock farming, listed in Annex I to the Treaty, without performing any further operation changing the nature of such products;

(45) ‘processing of agricultural products’ means any operation on an agricultural product resulting in a product which is also an agricultural product, except on-farm activities necessary for preparing an animal or plant product for first sale;

(46) ‘producer group or organisation’ means a group or organisation set up for the purpose of one of the following: (a) adapting the production and output of producers who are members of such producer groups or organisations to market requirements; (b) jointly placing goods on the market, including the preparation for sale, centralisation of sales and supply to bulk buyers; (c) establishing common rules on production information, with particular regard to harvesting and availability; (d) other activities that may be carried out by producer groups or organisations, such as the development of business and marketing skills, the organisation and facilitation of innovation processes, joint management of the members’ land, the use of environmentally sound cultivation practices and production techniques, sound animal welfare practices and techniques;

(47) ‘protected animal’ means any animal protected either by Union or by national legislation, including animal species for which national legislation provides for specific rules to preserve the population;

(48) ‘regional aid maps’ means the list of areas designated by a Member State in line with the conditions laid down in the Guidelines on regional State aid (⁷) and approved by the Commission;

(49) ‘repayable advance’ means a loan for a project which is paid in one or more instalments and the conditions for the reimbursement of which depend on the outcome of the project;

(50) ‘research and knowledge-dissemination organisation’ means an entity, irrespective of its legal status or way of financing, whose primary goal is to independently conduct fundamental research, industrial research or experimental development, or to widely disseminate the results of such activities by way of teaching, publication or knowledge transfer;

(51) ‘smaller Aegean islands’ means the smaller islands referred to in Article 1(2) of Regulation (EU) No 229/2013 of the European Parliament and of the Council (⁸);

(52) ‘SME’ or ‘micro, small and medium-sized enterprises’ means undertakings fulfilling the criteria laid down in Annex I;

(53) ‘start of works on the project or activity’ means the earlier of either the start of the activities or the construction works relating to the investment, or the first legally binding commitment to order equipment or employ services or any other commitment that makes the project or activity irreversible; buying land and preparatory works such as obtaining permits and conducting feasibility studies are not considered start of works or activity;

(54) ‘subsidised services’ means a form of aid, where the aid is granted to the final beneficiary indirectly, in kind, and is paid to the provider of the service or activity in question;

(55) ‘tangible assets’ means assets consisting of land, buildings and plant, machinery and equipment;

(56) ‘transaction cost’ means an additional cost linked to fulfilling a commitment, but not directly attributable to its implementation or not included in the costs or income foregone that are compensated directly; and which can be calculated on a standard cost basis;

(57) ‘Transmissible Spongiform Encephalopathy (‘TSE’) and Bovine Spongiform Encephalopathy (‘BSE’) test costs’ means all costs, including those for test kits and for the taking, transporting, testing, storing and destruction of samples necessary for sampling and laboratory testing in accordance with Chapter C of Annex X to Regulation (EC) No 999/2001 of the European Parliament and of the Council (⁹);

(58) ‘trees for short rotation coppicing’ means tree species of CN code 06 02 9041 to be defined by Member States that consist of woody, perennial crops, the rootstock or stools of which remain in the ground after harvesting, with new shoots emerging in the following season and with a maximum harvest cycle to be determined by the Member States;

(59) ‘undertaking in difficulty’ means an undertaking fulfilling the criteria laid down in Article 2, point (18), of Regulation (EU) No 651/2014;