State funding that meets the criteria specified in Article 107(1) of the Treaty on the Functioning of the European Union constitutes state aid and must be notified to the European Commission in accordance with Article 108(3) of the Treaty. However, pursuant to Article 109 of the Treaty, the Council may determine the categories of aid that are exempt from this notification requirement. Pursuant to Article 108(4) of the Treaty, the Commission may adopt regulations concerning such categories of state aid. In Regulation (EU) 2015/1588, the Council decided, in accordance with Article 109 of the Treaty, that de minimis aid (i.e., aid granted to the same undertaking over a given period that does not exceed a certain fixed amount) could constitute one of these categories. On this basis, de minimis aid is considered not to meet all the criteria set out in Article 107(1) of the Treaty and is therefore not subject to the notification procedure.
On December 13, 2023, Commission Regulation (EU) 2023/2831 of December 13, 2023, was published, concerning the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid (“Regulation (EU) 2023/2831”), which entered into force on January 1, 2024.
This Regulation (EU) 2023/2831 shall apply to aid granted prior to its entry into force if such aid meets all the conditions set forth therein. Any individual de minimis aid granted between January 1, 2014, and December 31, 2023, that meets the conditions set forth in the Regulation (EU) No. 1407/2013 does not meet all the criteria of Article 107(1) of the Treaty and, therefore, shall be exempt from the notification requirement under Article 108(3) of the Treaty.
The entry into force of Regulation (EU) 2023/2831 introduces the following changes:
- It raises the maximum limit on the amount of de minimis aid that a single company may receive per Member State over any three-year period from 200,000 to 300,000 euros.
- Effective January 1, 2026, Member States shall enter information on de minimis aid granted into a central register at the national or European Union level within 20 business days of the aid being granted. The information entered in the central register shall include the beneficiary’s identification details, the amount of the aid, the date of granting, the granting authority, the aid instrument, and the sector to which it relates, based on the European Union’s statistical classification of economic activities (“NACE classification”). The central register shall be established in a manner that facilitates public access to the information, while ensuring compliance with Union data protection rules, including through the pseudonymization of specific entries where necessary.
- In order for the State to ensure that information on de minimis aid is recorded in a register, financial intermediaries that administer de minimis aid schemes must report the total amount of de minimis aid received to the Member State on a quarterly basis, within ten days of the end of the relevant quarter. The date of granting shall be deemed to be the last day of the quarter.
Regulation (EU) 2023/2831 will initially remain in effect until December 31, 2030.
Claudia Fernández, Attorney at ELZABURU