New legal framework for de minimis aid
The European Commission's new de minimis aid regulation
The European Commission is gifting us with a new regulation on small amounts of state aid (de minimis aid) just in time for Christmas:
Background: The currently valid Regulation 1407/2013 will expire at the end of 2023. The "succession" therefore had to be organized.
On 15 December 2023, the "COMMISSION REGULATION (EU) 2023/2831 of 13 December 2023 on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid" was promulgated. This so-called de minimis regulation creates a new legal framework for state aid which does not have to be notified to the European Commission. It will enter into force on 1 January 2024. Admittedly, there have been no major changes to the European state aid regime. Nevertheless, there are some relevant changes for companies, state entities (Gebietskörperschaften) and other funding bodies. The most important aspects are:
New maximum amounts
The de minimis ceiling is raised from EUR 200,000 to EUR 300,000 per company.
In future, the three-year assessment period will no longer be based on fiscal years, but on years. This will lead to a rolling calculation from the time of each new grant of aid "backwards" (for the past three years).
As before, the "group clause" must be observed: companies “linked” to the direct aid recipient must be taken into account when calculating the maximum amount.
For reasons of transparency, equal treatment and effective monitoring, the regulation continues to apply only to de minimis aid whose gross grant equivalent can be calculated precisely in advance (without the need for a risk assessment).
Regulation for financial intermediaries
The new regulation takes account of the fact that financial intermediaries (in particular credit institutions) provide de minimis aid backed by guarantees. Such aid, if complying with certain thresholds (based on the Commission's experience), will automatically be treated as transparent aid.
New register
From 1 January 2026, Member States must document the de minimis aid granted in a central register (at national or EU level) as follows: Name of the aid recipient, aid amount, date of granting, granting authority, aid instrument and NACE code of the economic sector concerned. The registration must be completed within 20 working days of the grant date.
The register must be publicly accessible and at the same time comply with data protection regulations. If necessary, specific entries must be pseudonymized.
As long as the central register has not been set up or does not yet cover the three-year period, the Member State must explicitly inform the company concerned (potential aid recipient) that it is receiving de minimis aid; for its part, the company must disclose all de minimis aid received in the three-year period. Only then may the Member State grant the aid.
Conclusion
The well tested de minimis aid system is maintained, with only minor modifications. We certainly welcome the higher de minimis ceiling and greater transparency also for de minimis aid.
Please note: This blog is for general information purposes only and in no way constitutes legal advice from Binder Grösswang Rechtsanwälte GmbH. The blog cannot replace individual legal advice. Binder Grösswang Rechtsanwälte GmbH accepts no liability of any kind for the content and accuracy of the blog.