Commission Regulation (EU) 2022/2473 of 14 December 2022 declaring certain categories of aid to undertakings active in the production, processing and marketing of fishery and aquaculture products compatible with the internal market in application of Articles 107 and 108 of the Treaty on the Functioning of the European Union

CHAPTER I

Common provisions

Article 1

Scope

This Regulation shall apply to aid granted to

(a) micro, small and medium-sized enterprises (SMEs) active in the production, processing or marketing of fishery and aquaculture products;

(b) municipalities under Article 54 and 55; and

(c) fishing ports, landing sites, auction halls and shelters under Article 29

This Regulation shall also apply to aid granted to any undertaking active in the production, processing or marketing of fishery and aquaculture products for any of the following purposes and independently of the size of the undertaking benefitting from the aid:

(a) to make good the damage caused by natural disasters;

(b) to make good the damage caused by adverse climatic event which can be assimilated to a natural disaster;

(c) to make good the damage caused by protected animals; and

(d) for innovation in fisheries and aquaculture.

This Regulation shall not apply to:

(a) aid the amount of which is fixed on the basis of price or quantity of products put on the market;

(b) 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 the export activity;

(c) aid contingent upon the use of domestic over imported goods;

(d) ad hoc aid in favour of an undertaking as referred to in paragraph 5 of this Article;

(e) aid granted to operations or expenditure: (i) that increase the fishing capacity of a fishing vessel; (ii) for the acquisition of equipment that increases the ability of a fishing vessel to find fish; (iii) for the construction, acquisition or importation of fishing vessels, unless otherwise provided for in Article 20; (iv) for the transfer or reflagging of fishing vessels to third countries, including through the creation of joint ventures with partners of third countries; (v) for the temporary or permanent cessation of fishing activities; (vi) for exploratory fishing; (vii) the transfer of ownership of a business unless otherwise provided for in Article 20; (viii) for the direct restocking, except if experimental; (ix) for the construction of new ports or new auction halls; (x) for market intervention mechanisms aiming to temporarily or permanently withdraw fishery or aquaculture products from the market with a view to reducing supply in order to prevent price decline or to drive prices up; (xi) for investments on board fishing vessels necessary to comply with the requirements under Union law in force at the time of submission of the application for aid, including requirements under the Union’s obligations in the context of regional fisheries management organisations (RFMOs); (xii) for investments on board fishing vessels that have carried out fishing activities for less than 60 days in the two calendar years preceding the year of submission of the application for aid; (xiii) for the replacement or modernisation of a main or ancillary engine of a fishing vessel;

(f) aid granted to an undertaking that (i) has committed a serious infringement under Article 42 of Council Regulation (EC) No 1005/2008 (¹) or Article 90 of Regulation (EC) No 1224/2009 (²); (ii) has been involved in the operation, management or ownership of a fishing vessel included in the Union Illegal, unreported and unregulated fishing vessel list as set out in Article 40, point (3), of Regulation (EC) No 1005/2008, or of a vessel flying the flag of countries identified as non-cooperating third countries as set out in Article 33 of that Regulation; or (iii) has committed any of the environmental offences set out in Articles 3 and 4 of Directive 2008/99/EC of the European Parliament and of the Council (³), where the application for support is submitted under Article 32 to 39 of this Regulation.

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

(a) to undertakings participating in or benefitting from CLLD projects;

(b) to compensate for the costs of prevention, control and eradication of animal diseases;

(c) to aid schemes to make good the damage caused by natural disasters; or

(d) 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 adverse climatic events which can be assimilated to a natural disaster; or (ii) to make good the damage caused by protected animals.

This Regulation shall not apply to 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 illegal and incompatible with the internal market, with the exception of one of the following:

(a) aid schemes to make good the damage caused by natural disasters or by adverse climatic events which can be assimilated to a natural disaster; or

(b) aid schemes for costs incurred by SMEs participating in CLLD projects and aid to undertakings participating in, or benefitting from, CLLD in accordance with Articles 54 and 55.

This Regulation shall not apply to State aid measures, which entail, by themselves, by the conditions attached to them or by their 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 undertaking to have its headquarters in the relevant Member State or to be predominantly established in that Member State. However, the requirement to have an establishment or branch in the aid granting Member State at the moment of payment of the aid is allowed;

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

(c) aid restricting the possibility for the beneficiary undertaking to exploit the research, development and innovation results in other Member States;

(d) the Habitats Directive, Birds Directive, Ship Source Pollution Directive and provisions concerning waste management.

This Regulation shall not apply to:

(a) aid schemes referred to in Articles 20, 21, 24, 26 to 30, 33, 43, 46, 48, 50 and 52, where they fulfil the conditions of Article 12, after 6 months from their entry into force. However, the Commission may decide that this Regulation shall continue to apply to an aid scheme for longer than 6 months after its entry into force, after having assessed the relevant evaluation plan notified by the Member States 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 take a decision;

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

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 rainfall or severe droughts, which reduce by more than 30 % the average of the production calculated on the basis of one of the following methods: (a) the preceding three-year period; (b) a three year average based on the preceding five-year period, excluding the highest and the lowest entry;

(3) ‘aid’ means any measure fulfilling all the criteria laid down in Article 107(1) TFEU;

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

(5) ‘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/or for an indefinite amount;

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

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

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

(9) ‘depredation’ means preying on fish caught in nets or kept in ponds by protected animals such as seals, sea otters and sea birds;

(10) ‘evaluation plan’ means a document covering one or more aid schemes and containing at least the following minimum 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 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;

(11) ‘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;

(12) ‘fisher’ means any natural person engaging in commercial fishing activities, as recognised by the Member State concerned;

(13) ‘fishery and aquaculture products’ means the products listed in Annex I to Regulation (EU) No 1379/2013 of the European Parliament and of the Council (⁴);

(14) ‘fishery and aquaculture sector’ means the sector of the economy which comprises all activities of production, processing, and marketing of fishery or aquaculture products;

(15) ‘fishing capacity’ means a vessel’s tonnage in GT (Gross Tonnage) and its power in kW (Kilowatt) as defined in Articles 4 and 5 of Regulation (EU) 2017/1130 of the European Parliament and of the Council (⁵);

(16) ‘fishing port’ means a maritime or inland area of land and water which is officially recognised by a Member State and made up of such infrastructure and equipment so as to permit, mainly, the reception of fishing vessels, loading and unloading their catches, the storage, receipt and delivery of those catches and the embarkation and disembarkation of fishers;

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

(18) ‘individual aid’ means ad hoc aid and awards of aid to individual beneficiaries on the basis of an aid scheme;

(19) ‘inland fishing’ means fishing activities carried out for commercial purposes in inland waters by vessels or other devices, including those used for ice fishing;

(20) ‘invasive alien species’ means invasive alien species of Union concern and invasive alien species of Member State concern as defined in Article 3(3) and 3(4) of Regulation (EU) No 1143/2014 (⁶) of the European Parliament and of the Council (‘Regulation (EU) No 1143/2014’);

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

(22) ‘outermost regions’ means the regions referred to in Article 349 TFEU;

(23) ‘protected animal’ means any animal other than fish protected either by Union or by national legislation;

(24) ‘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;

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

(26) ‘small-scale coastal fishing’ means fishing activities carried out by: (a) marine and inland fishing vessels of an overall length of less than 12 metres and not using towed gear as defined in point (1) of Article 2 of Council Regulation (EC) No 1967/2006 (⁷); or (b) fishers on foot, including shellfish gatherers;

(27) ‘start of works’ means the earlier of either the start of construction works relating to the investment, or the first legally binding commitment to order equipment or any other commitment that makes the investment irreversible. Buying land and preparatory works such as obtaining permits and conducting feasibility studies are not considered start of works. For take-overs, ‘start of works’ means the moment of acquiring assets directly linked to the acquired establishment;

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

(29) ‘undertaking in difficulty’ means an undertaking fulfilling the criteria laid down in Article 2, point (18), of Commission Regulation (EU) No 651/2014 (⁸).

Article 3

Notification threshold

Article 4

Conditions for exemption

Article 5

Transparency of aid

The following categories of aid shall be considered to be transparent:

(a) aid comprised in grants, interest rate subsidies and subsidised services;

(b) aid comprised in loans where the gross grant equivalent has been calculated on the basis of the reference rate prevailing at the time of the grant;

(c) aid comprised in guarantees: (i) where the gross grant equivalent has been calculated on the basis of safe-harbour premiums laid down in a Commission notice; or (ii) where before the implementation of the measure, the methodology to calculate the gross grant equivalent of the guarantee has been accepted on the basis of the Commission Notice on the application of Articles 87 and 88 of the EC Treaty to State aid in the form of guarantees, or any successor notice, following notification of that methodology to the Commission under any regulation adopted by the Commission in the State aid area applicable at the time, and the approved methodology explicitly addresses the type of guarantee and the type of underlying transaction at stake in the context of the application of this Regulation;

(d) aid in the form of tax advantages, where the measure provides for a cap ensuring that the applicable threshold is not exceeded;

(e) aid in the form of repayable advances, if the total nominal amount of the repayable advance does not exceed the thresholds applicable under this Regulation or if, before implementation of the measure, the methodology to calculate the gross grant equivalent of the repayable advance has been accepted following its notification to the Commission.

For the purposes of this Regulation, the following categories of aid shall not be considered to be transparent aid:

(a) aid comprised in capital injections;

(b) aid comprised in risk finance measures.

Article 6

Incentive effect

Aid shall be considered to have an incentive effect, if the beneficiary undertaking has submitted a written application for the aid to the Member State concerned before work on the project or activity starts. The application for the aid shall contain at least the following information:

(a) undertaking’s name and size;

(b) description of the project or activity, including its start and end dates;

(c) location of the project or activity;

(d) list of eligible costs; and

(e) type of aid (grant, loan, guarantee, repayable advance or other) and amount of public funding needed for the project or activity.

Ad hoc aid granted to large enterprises shall be considered to have an incentive effect if, in addition to ensuring that the condition laid down in paragraph 2 is fulfilled, the Member State has verified, before granting the ad hoc aid concerned, that documentation prepared by the beneficiary undertaking establishes that the aid will result in one or more of the following:

(a) a material increase in the scope of the project or activity due to the aid;

(b) a material increase in the total amount spent by the beneficiary undertaking on the project or activity due to the aid;

(c) a material increase in the speed of completion of the project or activity concerned;

(d) in the case of investment ad hoc aid, that the project or activity would not have been carried out as such in the area concerned or would not have been sufficiently profitable for the beneficiary undertaking in the area concerned in the absence of the aid.

Measures in the form of tax advantages shall be deemed to have an incentive effect, if the following conditions are fulfilled:

(a) the measure establishes a right to aid in accordance with objective criteria and without further exercise of discretion by the Member State; and

(b) the measure has been adopted and is in force before work on the aided project or activity has started. This requirement shall not apply in the case of fiscal successor schemes, provided the activity was already covered by the previous schemes in the form of tax advantages.

By way of derogation from paragraphs 1 and 2 of this Article, the following categories of aid are not required to have or shall be deemed to have an incentive effect

(a) aid to compensate for the costs of the prevention, control and eradication of animal diseases, if the conditions laid down in Article 42 are fulfilled;

(b) aid to make good the damage caused by natural disasters, if the conditions laid down in Article 49 are fulfilled;

(c) aid to make good the damage caused by adverse climatic events which can be assimilated to a natural disaster, if the conditions laid down in Article 51 are fulfilled;

(d) aid to make good the damage caused by protected animals, if the conditions laid down in Article 53 are fulfilled;

(e) aid in the form of tax exemptions or reductions adopted by the Member States pursuant to Article 15(1) point (f), and Article 15(3) of Directive 2003/96/EC, if the conditions laid down in Article 56 of this Regulation are fulfilled;

(f) aid for SMEs participating in or benefitting from CLLD projects, if the relevant conditions in Articles 54 and 55 are fulfilled;

(g) aid for marketing measures referred to in Article 45(1)(b)(vii) if the relevant conditions in Articles 45 are fulfilled;

(h) aid for partnership between scientists and fishers if the relevant conditions in Articles 17 are fulfilled;

(i) aid to promote human capital, job creation and social dialogue if the relevant conditions in Articles 18 are fulfilled.

Article 7