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31.7.2013 Official
Journal
of
the
European
Union L
204/15
COUNCIL REGULATION (EU) No 734/2013
of 22 July 2013
amending Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93
of the EC Treaty
(Text with EEA relevance)
THE COUNCIL OF THE EUROPEAN UNION,
use this power in cases in which a complex substantive
assessment appears necessary. In deciding whether to use
this power, the Commission should take due account of
the duration of the preliminary investigation.
Having regard to the Treaty on the Functioning of the European
Union, and in particular Article 109 thereof,
(3) For
the
purpose
of
assessing
the
compatibility
of
an
aid
Having regard to the proposal from the European Commission,
measure after the initiation of the formal investigation
procedure, in particular as regards technically complex
cases subject to substantive assessment, the Commission
should be able, by simple request or by decision, to
Having regard to the opinion of the European Parliament,
require any Member State, undertaking or association
of undertakings to provide all market information
necessary for completing its assessment, if the
information provided by the Member State concerned
during the course of the preliminary investigation is
Whereas:
not sufficient, taking due account of the principle of
proportionality, in particular for small and medium-
sized enterprises.
(1)
In the context of a thorough modernisation of State aid
rules, to contribute both to the implementation of the
Europe 2020 strategy for growth ( 1 ) and to budgetary
consolidation, Article 107 of the Treaty on the Func
tioning of the European Union (TFEU) should be
(4) In
the
light
of
the
special
relationship
between
aid
bene
applied effectively and uniformly throughout the Union.
ficiaries and the Member State concerned, the
Regulation (EC) No 659/1999 (
Commission should be able to request information

2 ) codified and reinforced
the Commission’s previous practice of increasing legal
from an aid beneficiary only in agreement with the
certainty and supporting the development of State aid
Member State concerned. The provision of information
policy in a transparent environment. However, in the
by the beneficiary of the aid measure in question does
light of the experience gained in its application and of
not constitute a legal basis for bilateral negotiations
recent developments such as the enlargement of the
between the Commission and the beneficiary in question.
Union and the economic and financial crisis, certain
aspects of Regulation (EC) No 659/1999 should be
amended in order to enable the Commission to be
more effective.
(5) The
Commission
should
select
the
addressees
of
information requests on the basis of objective criteria
appropriate to each case, while ensuring that, when the
(2)
In order to assess the compatibility with the internal
request is addressed to a sample of undertakings or
market of any notified or unlawful State aid for which
associations thereof, the sample of respondents is repre
the Commission has exclusive competence under
sentative within each category. The information sought
Article 108 of the TFEU, it is appropriate to ensure
should consist, in particular, of factual company and
that the Commission has the power, for the purposes
market data and facts-based analysis of the functioning
of enforcing the State aid rules, to request all necessary
of the market.
market information from any Member State, undertaking
or association of undertakings whenever it has doubts as
to the compatibility of the measure concerned with the
Union rules, and has therefore initiated the formal inves
tigation procedure. In particular, the Commission should
(6) The Commission, as the initiator of the procedure,
should be responsible for verifying both the information
( 1 ) Communication from the Commission ‘Europe 2020: A strategy for
transmission by the Member States, undertakings or
smart, sustainable and inclusive growth’ of 3 March 2010
(COM(2010) 2020 final).
associations of undertakings, and the purported confiden
( 2 ) OJ L 83, 27.3.1999, p. 1.
tiality of the information to be disclosed.

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L 204/16
EN
Official Journal of the European Union
31.7.2013
(7) The
Commission
should
be
able
to
enforce
compliance (12) In
cases
where
information
marked
as
confidential
does
with the requests for information it addresses to any
not seem to be covered by obligations of professional
undertaking or association of undertakings, as appro
secrecy, it is appropriate to establish a mechanism by
priate, by means of proportionate fines and periodic
which the Commission can decide the extent to which
penalty payments. In setting the amounts of fines and
such information can be disclosed. Any such decision to
periodic penalty payments, the Commission should take
reject a claim that information is confidential should
due account of the principles of proportionality and
indicate a period at the end of which the information
appropriateness, in particular as regards small and
will be disclosed, so that the respondent can make use of
medium-sized enterprises. The rights of the parties
any judicial protection available to it, including any
requested to provide information should be safeguarded
interim measure.
by giving them the opportunity to make known their
views before any decision imposing fines or periodic
penalty payments is taken. The Court of Justice of the
European Union should have unlimited jurisdiction with
regard to such fines and periodic penalties pursuant to
Article 261 of the TFEU.
(13) The
Commission
should
be
able,
on
its
own
initiative,
to
examine information on unlawful aid, from whatever
source, in order to ensure compliance with Article 108
of the TFEU, and in particular with the notification
obligation and standstill clause laid down in
(8) Taking
due
account
of
the
principles
of
proportionality
Article 108(3) of the TFEU, and to assess the compati
and appropriateness, the Commission should be able to
bility of an aid with the internal market. In that context,
reduce the periodic penalty payments or waive them
complaints are an essential source of information for
entirely, when addressees of requests provide the
detecting infringements of the Union rules on State aid.
information requested, albeit after the expiry of the
deadline.
(14) To improve the quality of the complaints submitted to
(9) Fines
and
periodic
penalty
payments
are
not
applicable
to
the Commission, and at the same time increase trans
Member States, since they are under a duty to cooperate
parency and legal certainty, it is appropriate to define
sincerely with the Commission in accordance with
the conditions that a complaint should fulfil in order
Article 4 of the Treaty on European Union (TEU), and
to put the Commission in possession of information
to provide the Commission with all information required
regarding alleged unlawful aid and set in motion the
to allow it to carry out its duties under Regulation (EC)
preliminary examination. Submissions not meeting
No 659/1999.
those conditions should be treated as general market
information, and should not necessarily lead to ex
officio investigations.
(10) In order to safeguard the rights of defence of the Member
State concerned, it should be provided with copies of the
requests for information sent to other Member States,
undertakings or associations of undertakings, and be
(15) Complainants
should
be
required
to
demonstrate
that
able to submit its observations on the comments
they are interested parties within the meaning of
received. It should also be informed of the names of
Article 108(2) of the TFEU and of Article 1(h) of Regu
the undertakings and the associations of undertakings
lation (EC) No 659/1999. They should also be required
requested, to the extent that these entities have not
to provide a certain amount of information in a form
demonstrated a legitimate interest in the protection of
that the Commission should be empowered to define in
their identity.
an implementing provision. In order not to discourage
prospective complainants, that implementing provision
should take into account that the demands on interested
parties for lodging a complaint should not be
burdensome.
(11) The Commission should take due account of the
legitimate interests of undertakings in the protection of
their business secrets. It should not be able to use
confidential information provided by respondents,
which cannot be aggregated or otherwise be anonymised,
in any decision unless it has previously obtained their
(16) For reasons of legal certainty, it is appropriate to
agreement to disclose that information to the Member
establish limitation periods for the imposition and
State concerned.
enforcement of fines and periodic penalty payments.

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EN
31.7.2013 Official
Journal
of
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European
Union L
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(17) In
order
to
ensure
that
the
Commission
addresses
similar
(21) The
Commission,
in
close
liaison
with
the
Advisory
issues in a consistent manner across the internal market,
Committee on State aid, should be able to adopt imple
it is appropriate to complete the existing powers of the
menting provisions laying down detailed rules
Commission by introducing a specific legal basis to
concerning the form, content and other criteria of the
launch investigations into sectors of the economy or
complaints submitted in accordance with Regulation (EC)
into certain aid instruments across several Member
No 659/1999.
States. For reasons of proportionality and in the light
of the high administrative burden entailed by such inves
tigations, sector inquiries should be carried out only
when the information available substantiates a reasonable
suspicion that State aid measures in a particular sector
(22) Regulation (EC) No 659/1999 should therefore be
could materially restrict or distort competition within the
amended accordingly,
internal market in several Member States, or that existing
aid measures in a particular sector in several Member
States are not, or are no longer, compatible with the
internal market. Such inquiries would enable the
Commission to deal in an efficient and transparent way
HAS ADOPTED THIS REGULATION:
with horizontal State aid issues and to obtain an ex ante
overview of the sector concerned.
Article 1
Regulation (EC) No 659/1999 is amended as follows:
(18) Consistency
in
the
application
of
the
State
aid
rules
requires that arrangements be established for cooperation
between the courts of the Member States and the
Commission. Such cooperation is relevant for all courts
of the Member States that apply Article 107(1) and
(1) the title of the Regulation is replaced by the following:
Article 108 of the TFEU. In particular, national courts
should be able to ask the Commission for information or
for its opinion on points concerning the application of
State aid rules. The Commission should also be able to
‘COUNCIL REGULATION (EC) No 659/1999 OF
submit written or oral observations to courts which are
22 MARCH 1999 LAYING DOWN DETAILED
called upon to apply Article 107(1) or Article 108 of the
RULES FOR THE APPLICATION OF ARTICLE 108
TFEU. When assisting national courts in this respect, the
OF THE TREATY ON THE FUNCTIONING OF THE
Commission should act in accordance with its duty to
EUROPEAN UNION’;
defend the public interest.
(2) the title of Article 5 is replaced by the following:
(19) Those
observations
and
opinions
of
the
Commission
should be without prejudice to Article 267 of the
TFEU and not legally bind the national courts. They
‘Request for information made to the notifying
should be submitted within the framework of national
Member State’;
procedural rules and practices including those safe
guarding the rights of the parties, in full respect of the
independence of the national courts. Observations
submitted by the Commission on its own initiative
(3) the following Articles are inserted:
should be limited to cases that are important for the
coherent application of Article 107(1) or Article 108
of the TFEU, in particular to cases which are significant
for the enforcement or the further development of Union
‘Article 6a
State aid case law.
Request for information made to other sources
1. After the initiation of the formal investigation
procedure provided for in Article 6, in particular as
regards technically complex cases subject to substantive
(20) In the interests of transparency and legal certainty,
assessment, the Commission may, if the information
information on Commission decisions should be made
provided by a Member State concerned during the
public. It is therefore appropriate to publish decisions to
course of the preliminary investigation is not sufficient,
impose fines or periodic penalty payments, given that
request any other Member State, an undertaking or an
they affect the interests of the sources concerned. The
association of undertakings to provide all market
Commission, when publishing its decisions, should
information necessary to enable the Commission to
respect the rules on professional secrecy, including the
complete its assessment of the measure at stake taking
protection of all confidential information and personal
due account of the principle of proportionality, in
data, in accordance with Article 339 of the TFEU.
particular for small and medium-sized enterprises.

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L 204/18
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Official Journal of the European Union
31.7.2013
2. The
Commission
may
request
information
only:
required and prescribe a proportionate time limit within
which the information is to be provided. It shall also
indicate the fines provided for in Article 6b(1) and shall
indicate or impose the periodic penalties payments
(a) if it is limited to formal investigation procedures that
provided for in Article 6b(2), as appropriate. In addition,
have been identified by the Commission as being inef
it shall indicate the right of the undertaking or association
fective to date; and
of undertakings to have the decision reviewed by the
Court of Justice of the European Union.
(b) in so far as aid beneficiaries are concerned, if the
Member State concerned agrees to the request.
8. When
issuing
a
request
under
paragraph
1
or
6,
or
adopting a decision under paragraph 7, the Commission
shall also simultaneously provide the Member State
3. The
undertakings
or
associations
of
undertakings
concerned with a copy thereof. The Commission shall
providing information following a Commission’s request
indicate the criteria by which it selected the recipients of
for market information based on paragraphs 6 and 7
the request or decision.
shall submit their answer simultaneously to the
Commission and to the Member State concerned, to the
extent that the documents provided do not include
information that is confidential vis-á-vis that Member
State.
9. The
owners
of
the
undertakings
or
their
represen
tatives, or, in the case of legal persons, companies, firms
or associations having no legal personality, the persons
authorised to represent them by law or by their consti
The Commission shall steer and monitor the information
tution, shall supply on their behalf the information
transmission between the Member States, undertakings or
requested or required. Persons duly authorised to act
associations of undertakings concerned, and verify the
may supply the information on behalf of their clients.
purported confidentiality of the information transmitted.
The latter shall nevertheless be held fully responsible if
the information supplied is incorrect, incomplete or
misleading.
4. The
Commission
shall
request
only
information
that
is at the disposal of the Member State, undertaking or
association of undertakings concerned by the request.
Article 6b
Fines and periodic penalty payments
5. Member
States
shall
provide
the
information
on
the
basis of a simple request and within a time limit prescribed
1. The
Commission
may,
if
deemed
necessary
and
by the Commission which should normally not exceed one
proportionate, impose by decision on undertakings or
month. Where a Member State does not provide the
associations of undertakings fines not exceeding 1 % of
information requested within that period or provides
their total turnover in the preceding business year where
incomplete information, the Commission shall send a
they, intentionally or through gross negligence:
reminder.
(a) supply incorrect or misleading information in response
6. The
Commission
may,
by
simple
request,
require
an
to a request made pursuant to Article 6a(6);
undertaking or an association of undertakings to provide
information. Where the Commission sends a simple
request for information to an undertaking or an
association of undertakings, it shall state the legal basis
and the purpose of the request, specify what information
(b) supply incorrect, incomplete or misleading information
is required and prescribe a proportionate time limit within
in response to a decision adopted pursuant to
which the information is to be provided. It shall also refer
Article 6a(7), or do not supply the information
to the fines provided for in Article 6b(1) for supplying
within the prescribed time limit.
incorrect or misleading information.
7. The
Commission
may,
by
decision,
require
an
under
2. The
Commission
may,
by
decision,
impose
on
taking or an association of undertakings to provide
undertakings or associations of undertakings periodic
information. Where the Commission, by decision,
penalty payments where an undertaking or association of
requires an undertaking or an association of undertakings
undertakings fails to supply complete and correct
to supply information, it shall state the legal basis, the
information as requested by the Commission by decision
purpose of the request, specify what information is
adopted pursuant to Article 6a(7).

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EN
31.7.2013 Official
Journal
of
the
European
Union L
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The periodic penalty payments shall not exceed 5 % of the
that information provided by a respondent and marked as
average daily turnover of the undertaking or association
confidential is not protected, and setting a date after which
concerned in the preceding business year for each working
the information will be disclosed. That period shall not be
day of delay, calculated from the date established in the
less than one month.
decision, until it supplies complete and correct information
as requested or required by the Commission.
10. The
Commission
shall
take
due
account
of
the
legitimate interests of undertakings in the protection of
their business secrets and other confidential information.
3. In
fixing
the
amount
of
the
fine
or
periodic
penalty
An undertaking or an association of undertakings
payment, regard shall be had to the nature, gravity and
providing information pursuant to Article 6a, and which
duration of the infringement, taking due account of the
is not a beneficiary of the State aid measure in question
principles of proportionality and appropriateness, in
may request, on grounds of potential damage, that its
particular for small and medium-sized enterprises.
identity be withheld from the Member State concerned.’;
4. Where
the
undertakings
or
associations
of
under
(5) in Article 10 paragraphs 1 and 2 are replaced by the
takings have satisfied the obligation which the periodic
following:
penalty payment was intended to enforce, the Commission
may reduce the definitive amount of the periodic penalty
payment compared to that under the original decision
‘1. Without
prejudice
to
Article
20,
the
Commission
imposing periodic penalty payments. The Commission
may on its own initiative examine information regarding
may also waive any periodic penalty payment.
alleged unlawful aid from whatever source.
The Commission shall examine without undue delay any
5. Before
adopting
any
decision
in
accordance
with
complaint submitted by any interested party in accordance
paragraph 1 or 2, the Commission shall set a final
with Article 20(2) and shall ensure that the Member State
deadline of two weeks to receive the missing market
concerned is kept fully and regularly informed of the
information from the undertakings or associations of
progress and outcome of the examination.
undertakings concerned and also give them the oppor
tunity of making known their views.
2. If necessary, the Commission shall request
information from the Member State concerned. Article 2(2)
6. The
Court
of
Justice
of
the
European
Union
shall
and Article 5(1) and (2) shall apply mutatis mutandis.
have unlimited jurisdiction within the meaning of
Article 261 of the TFEU to review fines or periodic
penalty payments imposed by the Commission It may
After the initiation of the formal investigation procedure,
cancel, reduce or increase the fine or periodic penalty
the Commission may also request information from any
payment imposed.’;
other Member State, from an undertaking, or association
of undertakings in accordance with Article 6a and 6b,
which shall apply mutatis mutandis.’;
(4) in Article 7, the following paragraphs are added:
(6) the following chapter heading is inserted after Article 14:
‘CHAPTER IIIA
‘8. Before
adopting
any
decision
in
accordance
with
paragraphs 2 to 5, the Commission shall give the
LIMITATION PERIODS’;
Member State concerned the opportunity of making
known its views, within a time-limit that shall not
normally exceed one month, on the information received
(7) The title of Article 15 is replaced by the following:
by the Commission and provided to the Member State
concerned pursuant to Article 6a(3).
‘Limitation period for the recovery of aid’;
(8) the following Articles are inserted:
9. The Commission shall not use confidential
information provided by respondents, which cannot be
‘Article 15a
aggregated or otherwise be anonymised, in any decision
Limitation period for the imposition of fines and
taken in accordance with paragraphs 2 to 5, unless it has
periodic penalty payments
obtained their agreement to disclose that information to
the Member State concerned. The Commission may take a
1. The
powers
conferred
on
the
Commission
by
reasoned decision, which shall be notified to the under
Article 6b shall be subject to a limitation period of three
taking or association of undertakings concerned, finding
years.

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L 204/20
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Official Journal of the European Union
31.7.2013
2. The
period
provided
for
in
paragraph
1
shall
start
on
4. After
each
interruption,
the
limitation
period
shall
the day on which the infringement referred to in Article 6b
start running afresh.
is committed. However, in the case of continuing or
repeated infringements, the period shall begin on the day
on which the infringement ceases.
5. The
limitation
period
provided
for
in
paragraph
1
shall be suspended for so long as:
3. Any
action
taken
by
the
Commission
for
the
purpose of the investigation or proceedings in respect of
an infringement referred to in Article 6b shall interrupt the
(a) the respondent is allowed time to pay;
limitation period for the imposition of fines or periodic
penalty payments, with effect from the date on which the
action is notified to the undertaking or association of
undertakings concerned.
(b) the enforcement of payment is suspended pursuant to
a decision of the Court of Justice of the European
Union.’;
4. After
each
interruption,
the
limitation
period
shall
start running afresh. However, the limitation period shall
(9) Article 16 is replaced by the following:
expire at the latest on the day on which a period of six
years has elapsed without the Commission having imposed
a fine or a periodic penalty payment. That period shall be
extended by the time during which the limitation period is
‘Article 16
suspended in accordance with paragraph 5.
Misuse of aid
Without prejudice to Article 23, the Commission may, in
5. The
limitation
period
for
the
imposition
of
fines
or
cases of misuse of aid, initiate the formal investigation
periodic penalty payments shall be suspended for as long
procedure pursuant to Article 4(4). Articles 6, 6a, 6b, 7,
as the decision of the Commission is the subject of
9 and 10, Article 11(1) and Articles 12 to 15 shall apply
proceedings pending before the Court of Justice of the
mutatis mutandis.’;
European Union.
(10) in Article 20, paragraph 2 is replaced by the following:
Article 15b
Limitation periods for the enforcement of fines and
periodic penalty payments
‘2. Any
interested
party
may
submit
a
complaint
to
inform the Commission of any alleged unlawful aid or
1. The
powers
of
the
Commission
to
enforce
decisions
any alleged misuse of aid. To that effect, the interested
adopted pursuant to Article 6b shall be subject to a limi
party shall duly complete a form that has been defined
tation period of five years.
in an implementing provision referred to in Article 27 and
shall provide the mandatory information requested therein.
2. The
period
provided
for
in
paragraph
1
shall
start
on
the day on which the decision taken pursuant to Article 6b
Where the Commission considers that the interested party
becomes final.
does not comply with the compulsory complaint form, or
that the facts and points of law put forward by the
interested party do not provide sufficient grounds to
show, on the basis of a prima facie examination, the
3. The
limitation
period
provided
for
in
paragraph
1
existence of unlawful aid or misuse of aid, it shall
shall be interrupted:
inform the interested party thereof and call upon it to
submit comments within a prescribed period which shall
not normally exceed one month. If the interested party
fails to make known its views within the prescribed
(a) by notification of a decision modifying the original
period, the complaint shall be deemed to have been with
amount of the fine or periodic penalty payment or
drawn. The Commission shall inform the Member State
refusing an application for modification;
concerned when a complaint has been deemed to have
been withdrawn.
(b) by any action of a Member State, acting at the request
of the Commission, or of the Commission, intended to
The Commission shall send a copy of the decision on a
enforce payment of the fine or periodic penalty
case concerning the subject matter of the complaint to the
payment.
complainant’;

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EN
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European
Union L
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(11) the following Chapter is inserted after Article 20:
Commission to transmit to them information in its
possession or its opinion on questions concerning the
application of State aid rules.
‘CHAPTER VIA
INVESTIGATIONS INTO SECTORS OF THE ECONOMY
AND INTO AID INSTRUMENTS
2. Where
the
coherent
application
of
Article
107(1)
or
Article 108 of the TFEU so requires, the Commission,
Article 20a
acting on its own initiative, may submit written obser
Investigations into sectors of the economy and into
vations to the courts of the Member States that are
aid instruments
responsible for applying the State aid rules. It may, with
the permission of the court in question, also make oral
1. Where
the
information
available
substantiates
a
observations.
reasonable suspicion that State aid measures in a particular
sector or based on a particular aid instrument may
materially restrict or distort competition within the
internal market in several Member States, or that existing
The Commission shall inform the Member State concerned
aid measures in a particular sector in several Member
of its intention to submit observations before formally
States are not, or no longer, compatible with the
doing so.
internal market, the Commission may conduct an
inquiry across various Member States into the sector of
the economy or the use of the aid instrument concerned.
In the course of that inquiry, the Commission may request
For the exclusive purpose of preparing its observations, the
the Member States and/or the undertakings or associations
Commission may request the relevant court of the Member
of undertakings concerned to supply the necessary
State to transmit documents at the disposal of the court,
information for the application of Articles 107 and 108
necessary for the Commission’s assessment of the matter.’;
of the TFEU, taking due account of the principle of
proportionality.
(13) Article 25 is replaced by the following:
The Commission shall state the reasons for the inquiry and
for the choice of addressees in all requests for information
sent under this Article.
‘Article 25
Addressee of decisions
The Commission shall publish a report on the results of its
1. The
decisions
taken
pursuant
to
Article
6a(7),
inquiry into particular sectors of the economy or particular
Article 6b(1) and (2), and Article 7(9) shall be addressed
aid instruments across various Member States and shall
to the undertaking or association of undertakings
invite the Member States and any undertakings or associ
concerned. The Commission shall notify the decision to
ations of undertakings concerned to submit comments.
the addressee without delay and shall give the addressee
the opportunity to indicate to the Commission which
information it considers to be covered by the obligation
of professional secrecy.
2. Information
obtained
from
sector
inquiries
may
be
used in the framework of procedures under this Regu
lation.
2. All
other
decisions
of
the
Commission
taken
pursuant to Chapters II, III, IV, V and VII shall be
3. Articles
5,
6a
and
6b
shall
apply mutatis mutandis.’;
addressed to the Member State concerned. The
Commission shall notify them to the Member State
concerned without delay and shall give that Member
State the opportunity to indicate to the Commission
(12) the following Chapter is inserted after Article 23:
which information it considers to be covered by the
obligation of professional secrecy.’;
‘CHAPTER VIIA
COOPERATION WITH NATIONAL COURTS
(14) in Article 26, the following paragraph is inserted:
Article 23a
Cooperation with national courts
‘2a. The
Commission
shall
publish
in
the Official Journal
1. For the application of Article 107(1) and Article 108
of the European Union the decisions which it takes pursuant
of the TFEU, the courts of the Member States may ask the
to Article 6b(1) and (2).’;

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L 204/22
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31.7.2013
(15) Article 27 is replaced by the following:
(c) the form, content and other details of complaints
submitted in accordance with Article 10(1) and
Article 20(2);
‘Article 27
Implementing provisions
(d) details of time-limits and the calculation of time-limits;
and
The Commission, acting in accordance with the procedure
laid down in Article 29, shall have the power to adopt
implementing provisions concerning:
(e) the interest rate referred to in Article 14(2).’
Article 2
(a) the form, content and other details of notifications;
This Regulation shall enter into force on the twentieth day
following that of its publication in the Official Journal of the
(b) the form, content and other details of annual reports;
European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 22 July 2013.
For the Council
The President
C. ASHTON

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Document Outline

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