Exemptions

Potential exemptions for anti-competitive behaviour under Article 101 TFEU must be assessed on an individual basis, in particular the exemptions provided for in BERs, as they often involve market shares. Regarding state aid, as discussed in Chap. 3 (Sect. 3.3.5), the de Minimis Regulation[1] excludes aid below €200,000 and the de Minimis SGEIs Regulation[2] aid below €500,000 respectively over any period of three fiscal years to any one undertaking from the ambit of Article

107(1) TFEU. The GBER exempts aid for basic research of up to €40 M per project with 100 % aid intensity, applied research of up to €20 M per project with 50 % aid intensity and experimental development of up to €15 M per project with 25 % aid intensity as well as certain amounts of aid with certain intensities for various forms on non-project aid if the relevant conditions, in particular as regards transparency[3] and incentive effects,[4] are complied with.[5] Finally, Decision 2012/21/EU[6] provides an exemption for aid below €15 M per annum for SGEI provision. Outside of these exemptions, aid would need to be notified and could potentially be exempted according to Article 107(2) or (3) TFEU. As regards Article 107(3)(b) and 107(3)(c) guidance is provided in the Commission Communication on import projects of common European interest[7] and the Research Framework respectively. The latter, in particular, removes the ceilings of the GBER for research and development if the aid contributes to a well-defined objective of common interest, there is a need for state intervention, the measure is appropriate, has an incentive effect and is proportionate, undue negative effects are avoided and the conditions on transparency are adhered to.

According to the interviewees, the amount of funding provided through public calls varies significantly. Whilst the smaller grants (e.g. for travel) might only be a few hundred pounds, the highest calls could be up to ?10 M for the research councils’ centres of excellence and networks of excellence calls which are often collaborative. Some interviewees also mentioned, however, that with certain grants, researchers could ask for as much as they needed to do the project which could technically be any value. A few interviewees remarked that recently there was a tendency towards calls for larger and longer projects. Smaller projects, if qualifying as economic in nature, might, due to the de mimimis rules, not fall under Article 107(1) TFEU in the first place, though they could, of course, cumulate over three years and thereby reach the €200,000 or €500,000 (in cases of SGEIs) threshold. Most projects which could be considered as infringing state aid law might be able to benefit from the exemptions in the GBER provided that it is transparent aid and that the aid intensities are adhered to. If projects can be classified as providing an SGEI (discussed further in Sect. 5.3.14 below), they are also likely to fall under the €15 M threshold in the SGEI Decision, since there rarely seem to be projects with a higher value in England. Individual cases need to be evaluated to determine whether these conditions are fulfilled or, alternatively, the measure could be exempted after notification according to Article 107(2) or (3) TFEU. As has been discussed in Chap. 3 (Sect. 3.3.5.1), it seems questionable, in how far any exemptions can apply to hidden aid.

  • [1] Commission Regulation 1407/2013/EU on the application of Articles 107 and 108 of theTreaty on the Functioning of the European Union to de minimis aid’ OJ [2013] L 352/1.
  • [2] Regulation 360/2012/EU on the application of Articles 107 and 108 of the Treaty on theFunctioning of the European Union to de minimis aid granted to undertakings providing servicesof general economic interest OJ [2012] L 114/12.
  • [3] See Article 5 GBER para 17 of the preamble on transparent aid and Article 9 (1) on requirements of the Member States to publish information about aid measures.
  • [4] Article 6 GBER and para 18 of the preamble. This means in particular that aid is not exemptedif work has commenced before the application for aid was made to the Member State in question.
  • [5] See further Chap. 3 Sect. 3.3.5 above.
  • [6] Commission Decision 2012/21/EU on the application of Article 106(2) of the Treaty on theFunctioning of the European Union to State aid in the form of public service compensationgranted to certain undertakings entrusted with the operation of services of general economicinterest OJ [2012] L 7/3.
  • [7] Commission Communication Criteria for the analysis of the compatibility with the internalmarket of State aid to promote the execution of import projects of common European interest OJ[2014] C 188/44.
 
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