ERU, Alm.del - 2016-17 - Bilag 125: Regeringens svar på Kommissionens høring vedrørende revision af kodeks for god praksis ved behandling af statsstøttesager samt notat herom, fra erhvervsministeren

Erhvervs-, Vækst- og Eksportudvalget 2016-17
ERU Alm.del Bilag 125
Offentligt

MINISTER FOR INDUSTRY,

BUSINESS AND FINANCIAL

AFFAIRS

The Danish Government’s response to the Commission’s consultation

on the Code of Conduct of State Aid Control Proceedings

The Danish Government welcomes the Commission’s initiative to review

the Code of Best Practice on the Conduct of State Aid Control Proceed-

ings (hereinafter referred to as “the Code”) and appreciate the opportunity

to submit the views of the Danish Government on this initial stage of the

review process.

General remarks

In the Danish Government’s view the Code is a useful tool to provide

general information on the different steps in state aid procedures and the

effective cooperation between the Commission and Member States. The

Code encourages use of pre notification contacts which is a highly im-

portant tool to handle state aid issues effectively. Thus, the Code has had

a positive impact on the state aid procedures.

Since the entering into force of the Code on 1 September 2009, the State

Aid Modernisation process has taken place. It is now important that the

Code reflects this modernisation. Namely, since the 2013 revision of

Regulation 659/1999 (the Procedural Regulation changed the procedures

on handling complaints and gave the Commission powers to request in-

formation from sources other than Member States and the possibility to

impose fines for failure to reply to requests for information, introduced

sector inquiries etc. The Danish Government finds it very important that

the revised Code improves transparency and predictability of state aid

procedures in these areas too.

Furthermore, as a result of the state aid modernisation, more state aid is

now covered by the General Block Exemption Regulation (GBER) and

will not be notified to the Commission. The Danish Government finds

that there is a need to address the procedural steps in respect to the part-

nership between Member States and the Commission in order to ensure a

uniform interpretation and enforcement of the GBER throughout the EU.

MINISTRY OF INDUSTRY,

BUSINESS AND FINANCIAL

AFFAIRS

Slotsholmsgade 10-12

1015 Copenhagen K

Denmark

Tlf.

+45 33 92 33 50

Fax.

+45 33 12 37 78

CVR-nr. 10092485

EAN nr. 5798000026001

[email protected]

www.em.dk

ERU, Alm.del - 2016-17 - Bilag 125: Regeringens svar på Kommissionens høring vedrørende revision af kodeks for god praksis ved behandling af statsstøttesager samt notat herom, fra erhvervsministeren

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The Code should underline that focus for the Commission will be on solv-

ing specific state aid issues. If no specific state aid issues can be identified

in the informal contacts during pre-notification contact this should result

in a fast response from the Commission in order for the Member States to

proceed e.g. with a formal notification as quickly as possible.

In the following these general views are elaborated in light of the Com-

mission’s consultation questionnaire. The Danish Government’s response

will focus on Section C of the questionnaire:

“New topics to be consid-

ered in the Code of Best Practice”

Questionnaire

Q: Following the revision of the Procedural Regulation and the State

Aid Modernisation process, what changes could be introduced to make

the Code more useful?

The State Aid Modernisation has placed more responsibility on the

Member States in designing and implementing compatible aid under the

GBER. As a result the Commission can now focus on larger cases that

have the greatest impact on competition. The Code should reflect the

Commission’s considerations in respect to how it focuses its enforcement

resources. It should reflect how the Commission prioritize cases with the

most significant impact on competition in the EU, while at the same time

ensuring the coherent application of the state aid rules in Member States.

Following the State Aid Modernisation the GBER is now used to a large

extent by aid granting authorities. As the GBER now covers 90% of all

aid measures, the Danish Government finds that important procedural

aspects in respect to the partnership between Member States and the

Commission interpreting the GBER should be dealt with in the Code.

Despite Member States’ implementing aid measures without prior notifi-

cation to the Commission, prior assessment or dialogue with the Commis-

sion is often necessary. The Code should address the procedure of this

informal dialogue on interpretation of the GBER. Moreover, the Commis-

sion should describe what tools are available to Member States in these

situations: The possibility to ask questions on e-state aid wiki, sharing this

information with all Member States, and/or the possibility to make infor-

mal contact with the Commission’s case handlers on questions on inter-

pretation.

The increased responsibility for Member States to grant state aid directly

under the GBER risk increasing errors and non-uniform interpretation of

the state aid rules. The Danish Government believes that streamlining this

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process on interpretation of the GBER too would encourage Member

States to consult the Commission on questions of interpretation when

designing their measures in order to match the requirements of the GBER.

The Danish Government considers it highly important that all measures

are taken in order to encourage uniform application of the GBER in the

Member States. The Code could in that way provide an even better

framework for streamlining the exchange of information between the

Commission and Member States.

Q: The Procedural Regulation provides the possibility for the Commis-

sion to conduct an inquiry across Member States into a sector of the

economy or the use of an aid instrument. Do you find it useful to pro-

pose guidance on such an inquiry within the Code?

The current Code only addresses the process of a state aid procedure

when the case origin is either a notification or a complaint. The code

should clarify that the Commission may also open a case on its own ini-

tiative, as a result of sector enquiries, monitoring etc. In our view the

Code should also include detailed information on the process to be ex-

pected when the Commission carries out sector inquiries and market in-

vestigations. And what might be the possible outcome of such processes.

Q: The Procedural Regulation provides the possibility to Commission to

ask questions to undertakings following the opening of the formal in-

vestigation procedure. Do you find it useful to propose guidance on

such market investigation tools within the Code?

Yes. Cf. answer to question above.

Q: To accompany the State aid modernisation and enable contacts with

Member States, DG Competition has set up a network of country con-

tact points. Should the Code refer to this network and explain their

role?

Cf. below.

Q: Do you have any suggestions on how to improve the cooperation

between DG COMP and the network of country contact points?

It would indeed be useful if the Code explains the role of the network

of country contact points. A possible way to improve the cooperation in

the network would be to make the future ECN2-networksystem the natu-

ral contact point for exchange of information in the network, e.g. infor-

mation on meeting material and coordination etc.

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Q: Should the Code refer to and explain the portfolio approach for the

treatment of cases. For example, the process whereby Member States

and Commission agree on a process for timely delivery on a group of

cases, possibly by deprioritising other cases?

Yes. The Danish Government support transparency on the procedures

in respect to the portfolio approach and finds that the Code should reflect

the Commission’s criteria for prioritizing the portfolio of cases.

Q: To accompany the State aid modernisation and enable its uptake at

the national level, the Commission has promoted a strengthened part-

nership with the Member States. How do you think the Code could re-

flect the practices of the partnership?

Cf. answer to first question.

Q: Following the revision of the State aid rules in the context of the

State Aid Modernisation process, a significant number of measures

have been implemented by Member States under the General Block Ex-

emption Regulation and monitored by the Commission ex post. Would it

be useful to make a reference in the Code to the monitoring and its ob-

jectives?

The Commission should ensure as much transparency on the monitor-

ing process as possible. Thus, the Danish government finds it very im-

portant that the Commission’s ex post monitoring and its objectives are

addressed in the Code.

The Code should give detailed guidance to the Member States on what

they can expect of the Commission’s monitoring exercise. This could

include how Member States enter into dialogue with the Commission on

the Commission’s potential findings, which time frames Member States

can expect when answering questions from the Commission, time frames

for the Commission’s follow up on the answers submitted and next steps.

E.g. follow up is still outstanding in a specific Danish case where answers

to the Commission in an ex post monitoring procedure were submitted

more than a year ago.

Member States should receive a clear and prompt response from the

Commission on what the outcome of the monitoring exercise is expected

to be, and what steps the Commission intends to take in this respect.

As for the possible outcome of the Commission’s ex post monitoring the

Danish Government urges the Commission to elaborate on the scenarios

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Member States can expect to be met with. In the Commission’s official

reply to the European Court of Auditors Special report No 24/2016 com-

pliance with State aid rules in cohesion policy, the Commission provides

useful guidance in respect to the situations where the Commission, in its

monitoring, e.g. detect instances of non-compliance with the state aid

rules. It follows from the Commission’s official reply that

“If the DG

COMP's monitoring detects an illegal aid measure, it first examines

whether such measure can be found compatible with the internal market.

Only if the error detected results into granting of incompatible aid, cor-

rective measures consisting in recovery of aid can be used. For other

types of errors, adjustment to the design of the scheme and/or to the con-

trol mechanisms is more appropriate. For some errors, corrective

measures would be difficult to achieve (e.g. the aid was incompatible at

the moment when it was granted, but can be found compatible on the ba-

sis of the later revised rules).”

This should be reflected in the Code, fol-

lowed by examples.

Final remarks

Please do not hesitate to contact the Danish Authorities for clarification

and elaboration on any of the above stated preliminary comments.