Commission Regulation (EU) 2023/1315 of 23 June 2023 amending Regulation (EU) No 651/2014 declaring certain categories of aid compatible with the internal market in application of Articles 107 and 108 of the Treaty and Regulation (EU) 2022/2473 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 (Text with EEA relevance)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 108(4) thereof,

Having regard to Council Regulation (EU) 2015/1588 of 13 July 2015 on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to certain categories of horizontal State aid (1), and in particular Article 1(1), points (a) and (b), thereof,

After consulting the Advisory Committee on State aid,

Whereas:

(1) Transparency of State aid is essential for the correct application of Treaty rules and leads to better compliance, greater accountability, peer review and ultimately more effective public spending. Given the importance of transparency and, in particular, to align the publication thresholds in Commission Regulation (EU) No 651/2014 (2) with the new thresholds in all recently revised Commission State aid guidelines and frameworks, the threshold above which the information referred to in Annex III to that Regulation, on individual aid awards, must be published should be set at EUR 100 000. This threshold should be EUR 10 000 for beneficiaries active in primary agricultural production and for beneficiaries active in the fishery and aquaculture sector, other than those to which Section 2a of Regulation (EU) No 651/2014 applies, and EUR 500 000 for aid involved in financial products supported by the InvestEU fund under Section 16 of Regulation (EU) No 651/2014. For individual aid exceeding these thresholds, the information referred to in Annex III to Regulation (EU) No 651/2014 needs to be published within 6 months from the date the aid is granted. For aid not exceeding these thresholds, the publication of the information referred to in Article 9(1), points (a) and (b), of that Regulation can take place at a later point in time.

(2) To provide predictability and legal certainty for the implementation of the amendments to Regulation (EU) No 651/2014 introduced by this Regulation, in particular for State aid measures to support the green and digital transition, it is appropriate to extend the period of application of Regulation (EU) No 651/2014 by 3 years until 31 December 2026.

(3) Where appropriate, adjustments to notification thresholds and aid amounts should be introduced to Sections of Regulation (EU) No 651/2014 under specific review as part of the current amendment, based on an assessment of market developments and the Commission’s case practice. In light of the lengthy period of application of that Regulation since its adoption in 2014, in combination with current high inflation levels, it is appropriate to increase notification thresholds and maximum aid amounts also in Sections of Regulation (EU) No 651/2014 not subject to specific review. In that regard, the Commission considers that a general increase of 10 % of notification thresholds and aid amounts for the remaining Sections of Regulation (EU) No 651/2014 is appropriate and will, therefore, not lead to competition distortions contrary to the common interest.

(4) Following the adoption of the revised guidelines on regional State aid for the period from 1 January 2022 (3), provisions related to regional aid in Regulation (EU) No 651/2014 should be adjusted to ensure consistency between the different sets of rules targeting the same objectives. Chapter III, Section 1, of Regulation (EU) No 651/2014 should also be adjusted to take into account changes in the market and in view of the European Green Deal (4) and the European Climate Law objectives set out in Regulation (EU) 2021/1119 of the European Parliament and of the Council (5). Operating aid to prevent and reduce depopulation should be extended to sparsely populated areas, in order to facilitate better support in areas facing demographic challenges. To facilitate the application of Regulation (EU) No 651/2014 to aided projects below EUR 50 million carried out by small and medium-sized enterprises (‘SMEs’), the notification thresholds should be adjusted accordingly and clarified.

(5) In line with the objectives of the SME Strategy for a sustainable and digital Europe (6), State aid granted for consultancy for SMEs may be granted in the form of vouchers, for instance to promote green consultancy services. Furthermore, when granting State aid, Member States may decide to apply simplified rules to SMEs with a view to reducing the administrative burden and facilitating the participation of SMEs in competitive bidding procedures.

(6) According to the Communication on Shaping Europe’s digital future (7) and the Communication on a European strategy for data (8), there is a need to ensure that digital solutions help Europe to pursue its own way towards a digital transformation that works for the benefit of people through respecting the European values. The New Industrial Strategy for Europe (9) sets out that Europe needs research and technologies and a strong single market which brings down barriers and cuts red tape. It acknowledges that stepping up investment in research, innovation, deployment and up-to-date infrastructure will help develop new production processes and create jobs in the process. In this regard, research projects and innovation support services include also the development or improvement of digital products, processes or services, in any area, technology, industry or sector (including, but not limited to, digital industries, digital infrastructures and technologies, such as super-computing, quantum technologies, block chain technologies, artificial intelligence, cyber security, big data and cloud technologies).

(7) In order to speed up the implementation of certain innovative projects related to projects involving several Member States, it is appropriate to introduce higher notification thresholds and aid intensities for research and development projects delivering cross-border benefits in terms of effective collaborations and knowledge dissemination.

(8) In light of the introduction of dedicated block exemptions for community-led local development (‘CLLD’), designated as LEADER local development under the European Agricultural Fund for Rural Development, and European Innovation Partnership for agricultural productivity and sustainability (‘EIP’) Operational Group projects in Commission Regulation (EU) 2022/2472 (10), it is appropriate to, on the one hand, extend the scope of the current block exemption for CLLD projects under Regulation (EU) No 651/2014 beyond projects designated as LEADER and, on the other hand, to delete the block exemption for EIP projects under Regulation (EU) No 651/2014.

(9) It is appropriate to include in the scope of Regulation (EU) No 651/2014 compatibility conditions for aid to microenterprises in the form of public interventions concerning the supply of electricity, natural gas or heat. Such measures should be in accordance with the applicable provisions of Union law when they qualify as public interventions in price setting. Such measures should not discriminate between suppliers nor microenterprises and should result in a retail price above cost, at a level where effective competition between retailers can occur.

(10) To mitigate the effects of the rise of energy prices following Russia’s war of aggression against Ukraine, Council Regulation (EU) 2022/1854 (11) exceptionally enables Member States to apply, on a temporary basis, measures of public intervention in price setting for the supply of electricity for SMEs, including obligations to supply below cost. Therefore, it is also appropriate to include in the scope of Regulation (EU) No 651/2014 compatibility conditions for aid to SMEs in the form of temporary public interventions concerning the supply of electricity, gas or heat produced from natural gas, to mitigate the impact of price increases following Russia’s war of aggression against Ukraine. Such measures should not discriminate between SMEs or suppliers nor impose unfair costs on them. Suppliers should, therefore, be compensated for costs incured in supplying at regulated prices if the public intervention requires them to supply below cost. In order to avoid that such measures increase demand for electricity, natural gas or heat produced from natural gas or electricity, regulated prices should only cover a limited amount of consumption and should not result in an average price of supplies that is lower than the prices before the agression against Ukraine.

(11) Aid for the construction or upgrade of testing and experimentation infrastructures mainly addresses the market failure stemming from imperfect and asymmetric information or coordination failures. Contrary to research infrastructures, testing and experimentation infrastructures are used predominantly for economic activities and, more specifically, for the provision of services to undertakings. Constructing or upgrading a state of the art testing and experimentation infrastructure involves high up-front investment costs which, together with an uncertain client base, can render access to private financing difficult. Access to publicly funded testing and experimentation infrastructures must be granted on a transparent and non-discriminatory basis and on market terms to several users. To facilitate users’ access to testing and experimentation infrastructures, their user fees can be reduced in accordance with other provisions of Regulation (EU) No 651/2014 or Commission Regulation (EU) No 1407/2013 (12). If those conditions are not respected, the measure may entail State aid to the users of the infrastructure. In such situations, aid to the users or for the construction or upgrade should only be exempted from the notification requirement if the aid to the users is granted in compliance with the applicable State aid rules. Multiple parties may also own and operate a given testing and experimentation infrastructure, and public entities and undertakings may also use the infrastructure collaboratively. Testing and experimentation infrastructures are also known as technology infrastructures.

(12) Aid for innovation clusters aims at tackling market failures linked with coordination problems hampering the development of clusters, or limiting the interactions and knowledge flows within clusters. State aid can either support investment in open and shared infrastructures for innovation clusters, or support the operation of clusters, with a view to enhancing collaboration, networking and learning. Operating aid for innovation clusters should, however, only be allowed for a limited period not exceeding 10 years. To facilitate access to the innovation cluster facilities or participation in the innovation cluster’s activities access can be offered at reduced prices in accordance with other provisions of Regulation (EU) No 651/2014 or Regulation (EU) No 1407/2013.

(13) Aid for innovation activities is mainly targeted at market failures related to positive externalities (knowledge spill-overs), coordination difficulties and, to a lesser extent, asymmetric information. With respect to SMEs, such innovation aid may be awarded for obtaining, validating and defending patents and other intangible assets, for the secondment of highly qualified personnel, and for acquiring innovation advisory and support services, for example those provided by research and knowledge dissemination organisations, research infrastructures, testing and experimentation infrastructures or innovation clusters.

(14) Backhaul networks are a prerequisite for the deployment of both fixed and mobile access networks in areas where there is either no such infrastructure or where no such infrastructure is likely to be developed in the near future. State aid granted to support the deployment of certain performant backhaul networks that benefit both fixed and mobile networks should be considered compatible with the internal market and should be exempted from the notification requirement under certain conditions, in order to help bridge the digital divide in market failure areas, while limiting risks of distorting competition and crowding out private investment.

(15) Further to the adoption of the revised guidelines on State aid to promote risk finance investments (13) for the period as from 2022, provisions related to access to finance for SMEs in Regulation (EU) No 651/2014 should be aligned with the revised guidelines to ensure consistency. SMEs are the backbone of Member States’ economies, both in terms of employment and of economic dynamism and growth, and are therefore also central to the Union’s economic development and resilience as a whole. They bring innovative solutions to address challenges like climate change, inefficient use of resources and loss of social cohesion, and they help spread this innovation supporting the green and digital transition and strengthening the Union’s resilience or technological sovereignty. However, to be able to grow and unleash their full potential, SMEs need access to finance. Therefore, the Commission considers it appropriate to stimulate the creation of an efficient risk finance market, so that SMEs are able to access the necessary funding at each stage of their development. As long as such a market is not yet fully established, aid for access to finance for SMEs and start-ups addresses market failures or other relevant obstacles that prevent them from attracting the financing they require to develop to their full potential. SMEs, especially when they are young, or in new or high-technology sectors, are often unable to demonstrate their credit-worthiness to investors. The evaluation (14) of the relevant rules carried out in 2019 and 2020, has confirmed that those market failures or other relevant obstacles persist, a situation that is likely to be worsened by the COVID-19 pandemic and the consequences of the current political and economic situation in Europe due to the Russian’s war of aggression against Ukraine. To further facilitate the deployment of such aid to ensure SMEs’ growth prospects and the overall resilience of the Union’s economy and to provide more clarity, the structure and scope of the provisions on risk finance should be revised. Projects eligible for support from the Innovation Fund may qualify for a more permissive access to finance for innovative enterprises.

(16) Further to the adoption of the guidelines on State aid for climate, environmental protection and energy (15) applicable as from 27 January 2022, provisions in Regulation (EU) No 651/2014 related to aid in the fields of environmental protection, including climate protection, and energy should be adjusted to ensure consistency between the different sets of rules targeting the same objectives. The scope of Chapter III, Section 7, of Regulation (EU) No 651/2014 should be adjusted to take into account changes in the market and the European Green Deal and the European Climate Law objectives, as well as measures provided for in the Commission’s REPowerEU plan (16) to address the impacts of Russia’s war of aggression against Ukraine and to mitigate any negative effects on the accelerated green transition, including the provisions introduced to amend Regulation (EU) No 651/2014 in 2021 (17). When designing their State aid measures, Member States can combine aid under under different provisions of Regulation (EU) No 651/2014, provided that all the relevant conditions, including those on cumulation, are complied with.

(17) Investment aid aimed at supporting the acquisition or the leasing of zero-emission vehicles or clean vehicles or the retrofitting of vehicles, allowing them to qualify as zero-emission vehicles or clean vehicles, contributes to the shift towards zero-emission mobility and to achieving the ambitious targets of the European Green Deal, mainly the reduction of greenhouse gas emissions in the transport sector. In light of the experience gained by the Commission regarding State aid measures supporting clean mobility, it is appropriate to introduce specific compatibility conditions to ensure that the aid is proportionate and does not unduly distort competition by shifting demand away from cleaner alternatives. The scope of the provisions of Regulation (EU) No 651/2014 concerning investment aid for electric recharging and hydrogen refuelling infrastructure should be enlarged to also cover refuelling infrastructure supplying hydrogen that is not renewable, provided that a clear pathway towards decarbonisation of the hydrogen supplied exists. Moreover, aid for recharging and refuelling infrastructure should also be available for infrastructure that is not publicly accessible.

(18) It is appropriate to include in the scope of Regulation (EU) No 651/2014 specific compatibility conditions for aid for hydrogen across sectors in line with the objectives of the hydrogen strategy for a climate-neutral Europe (18), and for storage.

(19) The provisions of Regulation (EU) No 651/2014 concerning operating aid for the promotion of energy from renewable sources should be expanded to renewable energy communities, in accordance with Directive (EU) 2018/2001 of the European Parliament and of the Council (19). With respect to investment aid, renewable energy communities, along with different types of undertakings, should fall within the scope of Regulation (EU) No 651/2014. In this context, renewable and citizen energy communities as defined in Directive (EU) 2019/944 of the European Parliament and of the Council (20) may qualify as SMEs to the extent that they comply with the requirements laid down in Annex I to Regulation (EU) No 651/2014.

(20) It is appropriate to include in the scope of Regulation (EU) No 651/2014 compatibility conditions for investment aid for the rehabilitation of natural habitats and ecosystems, the protection and restoration of biodiversity and nature-based solutions for climate change adaptation and mitigation in line with the objectives of the Biodiversity Strategy for 2030 (21), the European Climate Law objectives, the EU strategy for adaptation to climate change (22) and the Communication on Sustainable Carbon Cycles (23). Those conditions should be added to the existing provisions concerning aid for the remediation of contaminated sites. Investment aid in those areas should therefore be considered compatible with the internal market and be exempted from the notification requirement of Article 108(3) of the Treaty, under certain conditions. In particular, it is necessary to ensure compliance with the ‘polluter pays principle’, according to which the costs of measures to deal with pollution should be borne by the polluter who causes the pollution.

(21) The provisions of Regulation (EU) No 651/2014 concerning investment aid for waste recycling and re-utilisation should be adapted and expanded to address developments in the market and, in accordance with the Circular Economy Action Plan (24), to reflect the shift towards measures aimed at promoting resource efficiency and supporting the transition towards a circular economy. The replacement of primary raw materials or feedstock with secondary (re-used or recycled) or recovered raw materials or feedstock will reduce pressure on natural resources, create sustainable growth and jobs and will strengthen resilience.