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 IV Transitional and final provisions

Article 57

Continued application of Regulation (EU) No 1388/2014

Article 47 of Commission Regulation (EU) No 1388/2014 ([^E0028]) states that that regulation shall apply until 31 December 2022. The present Regulation will replace Regulation (EU) No 1388/2014 upon its expiry.

Article 58

Transitional provisions

Article 59

Entry into force and applicability

This Regulation shall enter into force on 1 January 2023.

It shall apply from 1 January 2023 to 31 December 2029.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

ANNEX I

Small and medium-sized enterprises (SMEs)

1. Enterprise

An enterprise is considered to be any entity engaged in an economic activity, irrespective of its legal form. This includes, in particular, self-employed persons and family businesses engaged in craft or other activities, and partnerships or associations regularly engaged in an economic activity.

2. Staff headcount and financial thresholds determining enterprise categories

• 2.1.The category of micro, small and medium-sized enterprises (‘SMEs’) is made up of enterprises which employ fewer than 250 persons and which have an annual turnover not exceeding EUR 50 million, and/or an annual balance sheet total not exceeding EUR 43 million.

• 2.2.Within the SME category, a small enterprise is defined as an enterprise which employs fewer than 50 persons and whose annual turnover and/or annual balance sheet total does not exceed EUR 10 million.

• 2.3.Within the SME category, a micro-enterprise is defined as an enterprise which employs fewer than 10 persons and whose annual turnover and/or annual balance sheet total does not exceed EUR 2 million.

3. Types of enterprise taken into consideration in calculating staff numbers and financial amounts

• 3.1.An ‘autonomous enterprise’ is any enterprise which is not classified as a partner enterprise within the meaning of point 3.2 or as a linked enterprise within the meaning of point 3.3.

• 3.2.‘Partner enterprises’ are all enterprises which are not classified as linked enterprises within the meaning of point 3.3 and between which there is the following relationship: an enterprise (upstream enterprise) holds, either solely or jointly with one or more linked enterprises within the meaning of point 3.3, 25 % or more of the capital or voting rights of another enterprise (downstream enterprise).

• However, an enterprise may be ranked as autonomous, and thus as not having any partner enterprises, even if this 25 % threshold is reached or exceeded by the following investors, provided that those investors are not linked, within the meaning of paragraph 3, either individually or jointly to the enterprise in question:

• (a) public investment corporations, venture capital companies, individuals or groups of individuals with a regular venture capital investment activity who invest equity capital in unquoted businesses (business angels), provided the total investment of those business angels in the same enterprise is less than EUR 1 250 000 ;

• (b) universities or non-profit research centres;

• (c) institutional investors, including regional development funds;

• (d) autonomous local authorities with an annual budget of less than EUR 10 million and less than 5 000 inhabitants.

• 3.3.‘Linked enterprises’ are enterprises which have any of the following relationships with each other:

• (a) an enterprise has a majority of the shareholders’ or members’ voting rights in another enterprise;

• (b) an enterprise has the right to appoint or remove a majority of the members of the administrative, management or supervisory body of another enterprise;

• (c) an enterprise has the right to exercise a dominant influence over another enterprise pursuant to a contract entered into with that enterprise or to a provision in its memorandum or articles of association;

• (d) an enterprise, which is a shareholder in or member of another enterprise, controls alone, pursuant to an agreement with other shareholders in or members of that enterprise, a majority of shareholders' or members' voting rights in that enterprise.

• There is a presumption that no dominant influence exists if the investors listed in the second subparagraph of point 3.2 are not involving themselves directly or indirectly in the management of the enterprise in question, without prejudice to their rights as shareholders.

• Enterprises having any of the relationships described in the first subparagraph through one or more other enterprises, or any one of the investors referred to in point 3.2, are also considered to be linked.

• Enterprises which have one or other of such relationships through a natural person or group of natural persons acting jointly are also considered linked enterprises if they engage in their activity or in part of their activity in the same relevant market or in adjacent markets.

• An ‘adjacent market’ is considered to be the market for a product or service situated directly upstream or downstream of the relevant market.

• 3.4.Except in the cases set out in point 3.2, second subparagraph, an enterprise cannot be considered an SME if 25 % or more of the capital or voting rights are directly or indirectly controlled, jointly or individually, by one or more public bodies.

• 3.5.Enterprises may make a declaration of status as an autonomous enterprise, partner enterprise or linked enterprise, including the data regarding the thresholds set out in point 2. The declaration may be made even if the capital is spread in such a way that it is not possible to determine exactly by whom it is held, in which case the enterprise may declare in good faith that it can legitimately presume that it is not owned as to 25 % or more by one enterprise or jointly by enterprises linked to one another. Such declarations are made without prejudice to the checks and investigations provided for by national or Union rules.

4. Data used for the staff headcount and the financial amounts and reference period

• 4.1.The data to apply to the headcount of staff and the financial amounts are those relating to the latest approved accounting period and calculated on an annual basis. They are taken into account from the date of closure of the accounts. The amount selected for the turnover is calculated excluding value added tax (VAT) and other indirect taxes.

• 4.2.Where, at the date of closure of the accounts, an enterprise finds that, on an annual basis, it has exceeded or fallen below the headcount or financial thresholds stated in point 2, this will not result in the loss or acquisition of the status of medium-sized, small or micro-enterprise unless those thresholds are exceeded over two consecutive accounting periods.

• 4.3.In the case of newly-established enterprises whose accounts have not yet been approved, the data to apply is to be derived from a bona fide estimate made in the course of the financial year.

5. Staff headcount

The headcount corresponds to the number of annual work units (AWU), i.e. the number of persons who worked full-time within the enterprise in question or on its behalf during the entire reference year under consideration. The work of persons who have not worked the full year, the work of those who have worked part-time, regardless of duration, and the work of seasonal workers are counted as fractions of AWU. The staff consists of:

• (a) employees;

• (b) persons working for the enterprise being subordinated to it and deemed to be employees under national law;

• (c) owner-managers;

• (d) partners engaging in a regular activity in the enterprise and benefiting from financial advantages from the enterprise.

Apprentices or students engaged in vocational training with an apprenticeship or vocational training contract are not included as staff. The duration of maternity or parental leaves is not counted.

6. Establishing the data of an enterprise

• 6.1.In the case of an autonomous enterprise, the data, including the number of staff, are determined exclusively on the basis of the accounts of that enterprise.

• 6.2.The data, including the headcount, of an enterprise having partner enterprises or linked enterprises are determined on the basis of the accounts and other data of the enterprise or, where they exist, the consolidated accounts of the enterprise, or the consolidated accounts in which the enterprise is included through consolidation.

• To the data referred to in the first subparagraph are added the data of any partner enterprise of the enterprise in question situated immediately upstream or downstream from it. Aggregation is proportional to the percentage interest in the capital or voting rights (whichever is greater). In the case of cross-holdings, the greater percentage applies.

• To the data referred to in the first and second subparagraph are added 100 % of the data of any enterprise, which is linked directly or indirectly to the enterprise in question, where the data were not already included through consolidation in the accounts.

• 6.3For the application of point 6.2:

• (a) the data of the partner enterprises of the enterprise in question are derived from their accounts and their other data, consolidated if they exist. To these are added 100 % of the data of enterprises which are linked to these partner enterprises, unless their accounts data are already included through consolidation;

• (b) the data of the enterprises which are linked to the enterprise in question are to be derived from their accounts and their other data, consolidated if they exist. To these are added, pro rata, the data of any possible partner enterprise of that linked enterprise, situated immediately upstream or downstream from it, unless it has already been included in the consolidated accounts with a percentage at least proportional to the percentage identified under the second subparagraph of point 6.2.

• 6.4Where in the consolidated accounts no staff data appear for a given enterprise, staff figures are calculated by aggregating proportionally the data from its partner enterprises and by adding the data from the enterprises to which the enterprise in question is linked.

ANNEX II

Information regarding State aid exempt under the conditions of this Regulation

PART I

to be provided through the established Commission electronic notification system as laid down in Article 11

NUTS – Nomenclature of Territorial Units for Statistics. Typically, the region is specified at level 2.

An undertaking for the purposes of rules on competition laid down in the Treaty and for the purposes of this Regulation is any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed. The Court of Justice has ruled that entities which are controlled (on a legal or on a de facto basis) by the same entity should be considered as one undertaking

Period during which the granting authority can commit itself to grant the aid.

NACE Rev. 2 – Statistical classification of Economic Activities in the European Union. Typically, the sector shall be specified at group level.

In case of aid scheme: Indicate the annual overall amount of the budget planned under the scheme or the estimated tax loss per year for all aid instruments contained in the scheme.

In case of an ad hoc aid award: Indicate the overall aid amount/tax loss.

For guarantees, indicate the (maximum) amount of loans guaranteed.

Where appropriate, reference to the Commission decision approving the methodology to calculate the gross grant equivalent, in accordance with Article 5(2)(c).

PART II

to be provided through the established Commission electronic notification system as laid down in Article 11

Please indicate under which provision of the FIBER the aid measure is implemented.