Subsidy (EU)

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Aid is a term under Union law that describes all direct or indirect advantages of any kind granted by the state or through state resources that distort or threaten to distort competition by favoring certain companies or branches of production ( sectors ) and thereby (can) impair international trade. Including in particular public funds and guarantees for non-public companies subsumed who provide this no or inadequate consideration. The concept of aid, as an indefinite legal term, is very general (“aid of any kind”), because as many aid-relevant issues as possible should be covered.

General

Aid in the EU and Germany 2000–2012, in € million
Aid in the EU and Germany 2000–2012, in% of GDP

In 2012, the member states of the European Union granted a total of 67 billion euros in aid (but excluding aid for the railways and the financial sector, so-called “crisis aid”); of this, Germany accounted for almost 12 billion euros in subsidies and grants . This corresponds to a share of 0.521% (EU-27) or 0.449% (Germany) of GDP . Such subsidies can interfere with market developments in an undesirable manner , for example when several countries compete for foreign investments. For example, it was questioned whether it was economically sensible and appropriate to subsidize the production of the film Inglourious Basterds by the German Film Fund (DFFF) with 6.8 million euros in taxpayers' money.

It is therefore the prevailing opinion among economic policymakers that the EU should (which it does) have competences in competition law . The EU has passed laws and regulations that are intended to ensure that competition between companies organized under private law or entire economic sectors is not impaired or distorted by state benefits. Within the EU Commission , the EU Commissioner for Competition is responsible for this policy area.

Preferential treatment includes not only free government services, but also insufficient or low consideration for government services received, as is customary in the market. Aid is also present if the burdens that a company normally has to bear are reduced. The selective favoring of individual companies or industries is also recorded. State is also to be understood broadly; This also includes regions , federal states , municipalities and municipal companies .

The European Union law contains a general prohibition of aid and regulates concrete exhaustively exceptions that are not relevant aid. It cannot be ruled out that state aid will be granted; then the Competition Commission reserves the right to review and approve or reject them before they are granted . In order to implement this reservation, a notification requirement ( notification requirement ) was introduced. If aid was not notified before it was granted (for example because the parties involved were not aware of a transaction relevant to the aid), the Commission can also intervene ex officio . Competition rules aim at equal treatment of private and public companies and try to counteract any distortion of competition, especially if this is based on antitrust or state aid processes.

Aid not subject to notification

They form an exception regulation that includes an exhaustive list of allowable and not notifiable aid. According to this, non-discriminatory social aid for consumers ( Art. 107 para. 2a TFEU), damage repair in the event of natural disasters or other extraordinary events (Art. 107 para. 2b) and aid in the context of German reunification (Art. 107 para. 2c). Article 107 (3) lists aid that can be considered compatible with the common market ("regional aid", "structural funds" or "community initiatives"). Examples are in particular regional funding, training grants , restructuring aid, financing of services in the general interest ( services of general interest ), environmental aid or aid to deal with the global financial and economic crisis from 2008 onwards. The Commission ensures that the Member States only grant aid that complies with these rules .

The catalog contains subsidies with a wide spread, which is precisely not the case with the notifiable subsidies. Here, individual recipients are usually specifically favored.

Notification requirement / notification

According to Art. 108 (3) first sentence TFEU, aid must be notified to the Commission and approved by the Commission under the above conditions before it is granted. In addition to regional authorities , public companies are also subject to these notification obligations ( Art. 106 TFEU). However, if these legal forms have taken on sovereign tasks or if their activity falls within the area of ​​public services or if there is no freely accessible market for their services or a customary consideration is provided, no notification is required. Notification does not need to be given even if a supported project is strictly communal and does not trigger any clear cross-border demand. So-called “ de minimis aid ” in the amount of max. € 200,000 to the same beneficiary within 36 months, in the area of ​​so-called activities of general economic interest ("SGEI") in the amount of max. € 500,000. From a formal point of view, aid below this threshold does not qualify for aid.

State aid law differentiates between formal legality, which concerns prior registration with the EU Commission, and material legality. It depends on whether the aid is "compatible with the internal market". Aid that is subject to notification and that was not reported or not reported in time is already considered illegal from a formal point of view. A general implementation prohibition is associated with the notification obligation, which applies until a decision by the Commission in accordance with Art. 108 (3) TFEU. As long as there is no positive notification, aid may not be granted (so-called “stand-still clause”).

violation

According to Art. 1 f) of the EU State Aid Procedure Regulations, aid is unlawful if it is granted in violation of the notification obligation of Art. 108 of the TFEU. It is irrelevant whether the registration was intentionally omitted or not in good faith that it was not relevant to the aid. If these notification obligations are violated, the aid or municipal guarantee is void under civil law , i.e. ineffective from the start. The reason for nullity is the violation of a statutory prohibition ( § 134 BGB) because the BGH classifies the notification obligation as a prohibition law. In another proceeding, the BGH had made it clear that Section 134 of the German Civil Code (BGB) would also apply if it was about the violation of a legal prohibition directed only at one state contracting party (Federal Republic of Germany), but the purpose of the law could not be achieved in any other way than through the cancellation of the private law regulation made by the legal transaction . In the absence of such approval for municipal guarantees securing loans to non-municipal borrowers , these guarantees are void and the loans are unsecured. The banks involved are regularly expected to ensure that they are complying with the notification requirement. The credit institutions must recognize the formal illegality of Community law in a failure to report.

Administrative act

Aid is usually granted through an administrative act; reclaiming is only possible under the conditions of Section 48 (2) VwVfG . This prohibits the withdrawal (cancellation) of an illegal administrative act which was based on a cash payment or (divisible) payment in kind and the beneficiary relied on the continued existence of the administrative act and his trust is worthy of protection. Under these conditions, it can be assumed that the recovery of unlawful aid cannot generally be ruled out, even in the case of administrative acts that involved the granting of unlawful aid. In this regard, the European Court of Justice has ruled that the competent authority is obliged under Community law to even then withdraw an approval notification for unlawfully granted aid in accordance with a final decision of the Commission declaring the aid incompatible with the common market and demanding its recovery if it has allowed the deadline for this to expire under national law in the interests of legal certainty . The BVerfG also sees neither a violation of legal certainty nor a breach of the protection of legitimate expectations as a result of the withdrawal consideration and the non-application of the one-year deadline of Section 48 (4) sentence 1 VwVfG in the administrative act. Since Community law takes precedence over simple German law, unlawful aid can also be reclaimed at any time under administrative law.

Rescue aid

Exceptions are provided for a public rescue operation in favor of private legal forms that are in a corporate crisis. A company finds itself in difficulties under European law “if it is unable to absorb losses that force the company in the short or medium term with its own financial resources or outside funds made available to it by its owners / shareholders or creditors will cease its activities if the state does not intervene. ”The rescue aid and the guidelines issued for this are based on Art. 107 (3) TFEU. According to this, this aid can be considered compatible with the common market if it is granted only once. As a result of the financial crisis in 2007 , state aid was extended to market failure as a “considerable disruption in the economic life of a member state” (Art. 107 (3b) TFEU).

In state rescue is assumed that the recipient undertakings sizes depending on the restoration participate. Minimum rates have been set for participation in the total restructuring costs: at least 50% for large companies, 40% for medium-sized companies and 25% for small companies.

The rescue aid from the federal government in November 1999 to the construction company Philipp Holzmann , which was approved by the EU in May 2001 because Holzmann's loss of market share would offset the competitive advantages and the amount of aid was low compared to the overall rescue measures, was spectacular . The rescue aid as part of the remedial measures did not help, because the construction company was in March 2002 in the insolvency (see on the effect of restructuring efforts and debt relief ).

literature

  • Alexander Birnstiel, Marc Bungenberg, Helge Heinrich (eds.): European aid law (=  Nomos commentary ). Nomos, Baden-Baden 2013, ISBN 978-3-8329-5758-2 .
  • Philipp von Carnap-Bornheim: Introduction to European State Aid Law . In: Legal training (JuS) . 2013, ISSN  0022-6939 , p. 215-220 .
  • Walter Frenz : Aid and Procurement Law (=  European Law Manual . Volume 3 ). Springer, Berlin 2007, ISBN 978-3-540-31058-7 .

Web links

Individual evidence

  1. ↑ Source: Statistics "Non-crisis state aid, excluding railways - million EUR" from Eurostat .
  2. ↑ also in each case without aid for the railway sector and without crisis aid. Source: Statistics "Non-crisis state aid, excluding railways -% of GDP" from Eurostat.
  3. ^ Film funding: EU Commission wants to stop the subsidy race , Euroactiv.de from June 20, 2011.
  4. ↑ ECJ, judgment of June 17, 1999 - C-75/97
  5. ↑ Jan Kuhnert, Olof Leps: European law requirements for a new non-profit housing . In: New non-profit housing . Springer Fachmedien Wiesbaden, 2017, ISBN 978-3-658-17569-6 , p. 213-258 , doi : 10.1007 / 978-3-658-17570-2_8 ( springer.com [accessed February 28, 2017]).
  6. ↑ TFEU, p. 45. (PDF)
  7. ↑ COMMISSION REGULATION (EU) No. 360/2012 on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid to companies providing services of general economic interest (PDF) p. 1 Retrieved January 17, 2019.
  8. ^ Walter Frenz: Handbuch Europarecht: State aid and procurement law . Springer, 2008, ISBN 978-3-540-31058-7 , p. 259 ( limited preview in Google book search).
  9. ↑ Regulation (EC) No. 659/1999 of the Council of March 22, 1999 on special provisions for the application of Article 93 of the EC Treaty , ABl. L 83 of March 27, 1999, p. 1
  10. ^ Walter Frenz: Handbuch Europarecht: State aid and procurement law . Springer, 2008, ISBN 978-3-540-31058-7 , p. 280 ( limited preview in Google book search).
  11. ↑ BGH WM 2004, 468
  12. ^ BGH WM 2003, 1491
  13. ↑ BGH WM 2004, 468
  14. ↑ ECJ, judgment of March 20, 1997, Az .: Rs C-24/95
  15. ↑ a b BVerwGE 92, 81, 86 from 1993
  16. ↑ ECJ, judgment of March 20, 1997 in DÖV 1998, p. 287 ff.
  17. ↑ BVerfGE 59, 128 (166)
  18. ↑ BVerfGE 75, 223 (244)
  19. ↑ Official Journal C 244 of October 1, 2004
  20. ^ Walter Frenz: Handbuch Europarecht: State aid and procurement law . Springer, 2008, ISBN 978-3-540-31058-7 , p. 330 ( limited preview in the Google book search).
  21. ↑ Official Journal EU 2008 / C 270/02 (PDF)