(fra kommisjonsforordningen)

(1) State funding meeting the criteria of Article 107(1) of the Treaty on the Functioning of the European Union (‘the Treaty’) constitutes State aid and requires notification to the Commission under Article 108(3) of the Treaty. However, in accordance with Article 109 of the Treaty, the Council may determine categories of aid that are exempted from that notification requirement. In accordance with Article 108(4) of the Treaty, the Commission may adopt regulations relating to those categories of State aid.

(2) Regulation (EU) 2022/2586 empowers the Commission to declare that aid for the coordination of transport as referred to in Article 93 of the Treaty may, under certain conditions, be exempted from the notification requirement.

(3) Aid to land transport is deemed compatible with the Treaty if it meets the needs of transport coordination or if it represents ‘reimbursement for the discharge of certain obligations inherent in the concept of a public service’ in accordance with Article 93 of the Treaty.

(4) To achieve the Union’s climate neutrality goal set out in Regulation (EU) 2021/1119 of the European Parliament and of the Council (2), a fundamental green and digital transformation of transport in the Union is needed. As part of the Commission’s 2020 sustainable and smart mobility strategy (3), the Union called on Member States to take measures making all transport modes more sustainable and to promote a shift to more sustainable modes of transport.

(5) Article 11 of the Treaty underlines the Union’s commitment to environmental protection and sustainability, emphasising the integration of environmental requirements into the definition and implementation of its policies and activities.

(6) Based on the Commission’s experience in applying Article 93 of the Treaty, certain categories of State aid that meet the needs of transport coordination are considered not to give rise to any significant distortion of competition and trade between Member States, provided that they meet certain clear compatibility criteria set out on the basis of the extensive decisional practice.

(7) This Regulation applies to operating and investment State aid measures granted in the sustainable land transport sectors.

(8) Aid that fulfils all the conditions laid down in this Regulation, both general and specific to the relevant categories of aid, should be exempted from the notification obligation laid down in Article 108(3) of the Treaty.

(9) State aid within the meaning of Article 107(1) of the Treaty not covered by this Regulation remains subject to the notification requirement laid down in Article 108(3) of the Treaty. This Regulation does not affect the Member States’ possibility to notify aid that has objectives that correspond to objectives covered by this Regulation.

(10) This Regulation should only apply to aid that meets the needs of transport coordination. By contrast, aid for the discharge of certain obligations inherent in the concept of a public service in the land transport sectors should continue to be governed by Regulation (EC) No 1370/2007 of the European Parliament and of the Council (4) or, where it does not meet the conditions laid down in that Regulation, should be notified to the Commission. Undertakings providing transport services entrusted with a public service contract should be able to benefit from aid granted under this Regulation provided in particular that Article 8 of this Regulation is complied with, and overcompensation is prevented.

(11) This Regulation should allow for greater simplification in line with the Commission’s objectives (5) and increase transparency, as well as effective evaluation and checks of compliance with State aid rules at national and Union levels, while preserving the institutional powers of the Commission and Member States. This is in line with the Commission’s Communication on EU State Aid Modernisation (6) and with the outcome of the fitness check carried out by the Commission in 2020 (7) highlighting the need to reduce administrative burdens and ensure efficient public spending.

(12) The general conditions for the application of this Regulation are laid down on the basis of a set of common principles that ensure the aid: (i) serves the purpose of transport coordination; (ii) has a clear incentive effect; (iii) is necessary, appropriate and proportionate; (iv) is granted in full transparency and subject to a control mechanism and regular evaluation; and (v) does not affect competition and trade to an extent that jeopardises the general interests of the Union.

(13) To ensure that the aid is necessary and acts as an incentive to further develop activities or projects, this Regulation should not apply to aid for activities or projects in which the beneficiary would in any case engage even in the absence of the aid. Aid should only be exempted from notification under this Regulation if the work on the aided project or activity starts after the beneficiary has submitted a written application for the aid. Buying land and preparatory works such as obtaining permits and conducting feasibility studies are not considered start of work on the aided project.

(14) As regards any ad hoc investment aid covered by this Regulation granted to a beneficiary that is a large enterprise, the Member State should ensure that,,in addition to complying with the conditions relating to incentive effect which apply to beneficiaries that are small and medium-sized enterprises (SMEs), the beneficiary has analysed, as evidenced by its internal documentation, the viability of the aided investment with aid and without aid. In such cases, the Member State should verify that such documentation confirms that the aid will result in a material increase in the scope of the investment supported by the aid, in a material increase in the total amount spent by the beneficiary on such investment, or in a material increase in the speed of completion of the investment.

(15) Automatic aid schemes in the form of tax advantages should be subject to a specific condition concerning the incentive effect, given that the aid resulting from such aid schemes is granted automatically. That specific condition means that those aid schemes should only support projects or activities on which works start after those schemes enter into force. However, this condition should not apply in the case of successor aid schemes, provided that the activity was already covered by the predecessor schemes in the form of tax advantages. When assessing the incentive effect of successor aid schemes, the crucial moment to be considered should be when the tax measure was laid down for the first time in the original scheme.

(16) Operating aid to reduce the external costs of transport meeting the conditions of this Regulation should be considered to have an incentive effect if the aid is passed on to the users and therefore increases the demand for sustainable transport services and a modal shift. Publicity is aimed at increasing awareness of the measures available to reduce the competitiveness gap between sustainable land transport modes and road-only or other competing less sustainable modes of transport. Publicity is hence considered to ensure that the aid is reflected in the price that users are asked to pay.

(17) For the purposes of transparency, equal treatment and effective monitoring, this Regulation should apply only to aid that may be calculated precisely in terms of its gross grant equivalent ex ante without the need to carry out a risk assessment (‘transparent aid’). For certain aid instruments such as loans, guarantees, tax measures and, in particular, repayable advances, this Regulation should define the conditions under which they can be considered transparent. Aid comprised in guarantees should be considered as transparent if the gross grant equivalent has been calculated on the basis of safe-harbour premiums laid down for the respective type of undertaking. It should also be considered transparent if before the implementation of the measure, the methodology used to calculate the aid intensity of the State guarantee has been notified to and approved by the Commission in accordance with a Commission notice on the application of Articles 107 and 108 of the Treaty to State aid in the form of guarantees (8). For the purposes of this Regulation, aid that involves a complex economic assessment in order to calculate precisely the gross grant equivalent of the aid ex ante (such as aid comprised in equity investments and quasi-equity investments) should not be considered to be transparent aid, unless the gross grant equivalent of such aid is considered to be the nominal amounts of such investments.

(18) To ensure that aid is proportionate and limited to the amount necessary, maximum aid amounts in terms of aid intensities in relation to a set of eligible costs should be laid down. Based on the Commission’s experience, the aid intensity should be fixed at a level that minimises distortions of competition and trade caused by the aided activity while appropriately addressing market failures or other obstacles to the coordination of transport.

(19) When calculating aid intensity, only eligible costs should be included. The identification of eligible costs should be supported by clear, specific and up-to-date documentary evidence. Aid which exceeds the relevant aid intensity should not be exempted from the notification requirements. All amounts used in the calculation should be taken before any deduction of tax or other charges. Aid payable in several instalments should be discounted to its value at the moment it is granted. The eligible costs should also be discounted to their value at that moment.

(20) The Commission should ensure that authorised aid does not affect competition and trade to an extent that jeopardises the general interests of the Union. Therefore, aid in favour of a beneficiary facing an outstanding recovery order following a previous Commission decision declaring an aid illegal and incompatible with the internal market should be excluded from the scope of this Regulation.

(21) Aid to undertakings in difficulty should be excluded from the scope of this Regulation. Such aid should be assessed on the basis of the Guidelines on State aid for rescuing and restructuring non-financial undertakings in difficulty (9).

(22) This Regulation consolidates the extensive experience acquired by the Commission in the assessment of operating aid designed to reduce the external costs of transport. Such aid should be quantified on the basis of the external costs that can be avoided by adopting a more sustainable transport solution instead of a competing, commercially viable mode of transport such as road-only transport. Aid can take the form of a reduction in the charges that transport operators pay for infrastructure use. Operating aid to reduce the external costs of transport should be covered by this Regulation only where distortions to competition and trade are limited and subject to well-defined conditions. This is the case where the external costs avoided are calculated in accordance with the rules and methodology set out in the Commission’s Handbook on the external costs of transport (10), where the aid intensity remains under certain thresholds, and where the aid is granted only for sustainable land transport services actually provided. This ensures that the aid is strictly limited to compensation for the external costs associated with using a more sustainable mode of transport.

(23) Furthermore, operating aid to support transport operators or transport organisers when launching new commercial rail freight or inland waterways freight connections should only be covered by this Regulation where distortions of competition and trade are limited and subject to well-defined conditions. This is the case where the aid amount is calculated in relation to the operating losses incurred by the beneficiary during the first five years of operation of the new commercial freight connection and the aid intensity remains under a certain threshold.

(24) Investment in railway service facilities, inland waterways facilities, rail or inland waterways multimodal transport facilities and in private sidings across the Union, is essential to ensure connectivity, sustainable functioning of the economy and cohesion among Member States. Such investments support the priorities of the Commission’s 2020 sustainable and smart mobility strategy (11), which prioritises the development of multimodal transport facilities. This Regulation should cover investment aid for the construction, upgrade and renewal of railway service facilities, inland waterways facilities, rail or inland waterways multimodal transport facilities, and private sidings. This Regulation should not apply to aid for port infrastructure (berths, jetties, etc.) and aid for port access infrastructure which are eligible pursuant to Commission Regulation (EU) No 651/2014 (12). This Regulation should, however, apply to aid for port superstructure (surface arrangements such as for storage, service facilities such as warehouses, as well as equipment used for the operation of facilities), as long as the superstructure in question is located in an inland waterways facility or a multimodal transport facility with a rail or inland waterways connection. For that type of aid, the administrative burden caused by the notification of straightforward State aid measures should be reduced, which also enables the Commission to focus on the potentially most distortive cases. The conditions for exempting investment aid to railway service facilities, inland waterways facilities, rail or inland waterways multimodal transport facilities, and private sidings from the notification requirement should limit distortions of competition and trade that would undermine a level playing field in the internal market. Trade and competition distortions are limited in particular by ensuring the proportionality of the aid.

(25) This Regulation should cover investment aid for the acquisition of vehicles for rail or inland waterways transport and certain categories of equipment instrumental to sustainable multimodal transport (i.e. Intermodal Loading Units and cranes on board vessels) only where distortions of competition and trade are limited. For the acquisition of certain types of equipment for sustainable multimodal transport, this is the case for aid schemes covering cranes on board vessels and part of the costs of Intermodal Loading Units and where the aid intensity remains under well-defined thresholds. For the acquisition of vehicles for rail or inland waterways transport, this is the case where the aid takes the form of a guarantee to the vehicle’s buyer subject to well-defined conditions. In the rail sector, SMEs and new entrants have difficulties in renewing or increasing their fleets because of the high investment costs of acquiring rolling stock and to difficulties in accessing finance. Small mid-cap undertakings (‘SMCs’) face similar challenges. In the inland waterways sector, most operators are SMEs or at best SMCs. This makes it difficult for them to renew or increase their fleet because of difficulties in accessing market financing. Therefore, investment aid in the form of guarantees to new entrants in the rail sector, to SMEs and to SMCs in the rail and inland waterways sectors, promotes sustainable transport without unduly distorting competition and trade.

(26) In line with the Union’s transport and digital policies, further efforts are required to enable communication between different transport information systems as well as coordination of transport networks and cross-border competition, and to improve transport safety in the Union. This is necessary because of the different standards of transport networks, the lack of technical harmonisation, incompatible tools and systems for data collection, and concerns about data sharing and data sovereignty. Furthermore, experience in assessing the measures for interoperability support notified under the 2008 Guidelines on State aid for railway undertakings (13) has shown that acute market failures exist because of coordination failures and the ‘first-mover disadvantage’, where the benefits linked to introducing specific technology or standard go beyond the commercial interest of transport operators.

(27) This is the case, for example, with train and traffic control systems such as the European Railway Traffic Management System (ERTMS). The ERTMS is a single European signalling and speed control system that ensures interoperability of national railway systems, reducing the purchasing and maintenance costs of the signalling systems and increasing the speed of trains, the capacity of infrastructure and the level of safety in rail transport. ERTMS is comprised of the European Train Control System (ETCS), i.e. a cab-signalling system that incorporates automatic train protection, the Railway Mobile Radio (RMR) and Automated Train Operation (ATO). The RMR system currently used for railway operations, namely the Global System for Mobile Communications – Rail (GSM-R), is based on specifications finalised 20 years ago. Because of technological obsolescence, industrial support for GSM-R is unlikely to be ensured after 2031. Given the limited negative effects on competition and trade that aid for interoperability has, and considering the experience acquired, such aid should be covered by this Regulation under well-defined conditions.

(28) To foster the competitiveness of transport by rail and inland waterways, it is also necessary to promote technical adaptation and modernisation in the sustainable land transport sectors. Aid for such investments should be subject to conditions that limit distortions of competition and trade which would undermine a level playing field in the internal market. In particular, the conditions for exempting such aid from the notification requirements should ensure the necessity and proportionality of the aid and include safeguards on the type of aid and the eligible costs.

(29) Aid to undertakings to adapt to future Union standards might result in achieving a high level of harmonisation and standardisation sooner. Aid should not be exempted from the notification requirements where investments bring undertakings into compliance with Union standards that have already been adopted. However, in cases where the relevant Union standard has already been adopted but is not yet in force, aid can have an incentive effect if it incentivises the investment to be implemented and finalised at least 12 months before the standard enters into force, provided the standard does not apply retroactively. In order not to discourage Member States from setting mandatory national standards that are more stringent or ambitious than the corresponding Union standards, aid measures may have an incentive effect irrespective of the presence of such national standards. The same is true of aid granted in the presence of mandatory national standards adopted in the absence of Union standards.

(30) Certain categories of aid covering high amounts of aid granted per project should be assessed by the Commission upon notification due to the higher risk of undue distortions of competition and trade. Any aid granted above certain thresholds should therefore remain subject to the notification requirement laid down in Article 108(3) of the Treaty. It should be ensured that the thresholds are not circumvented by artificially splitting up projects into several projects with similar characteristics, objectives or beneficiaries.

(31) In view of the greater potential impact of large aid schemes on trade and competition, aid schemes with a budget exceeding a certain threshold in any given year or in total based on an absolute value should in principle be subject to State aid evaluation. The evaluation should aim to verify: (i) whether the assumptions and conditions underlying the scheme’s compatibility have been confirmed; and (ii) the aid measure’s effectiveness in light of its general and specific objectives. It should also indicate the scheme’s impact on competition and trade. To ensure equal treatment, State aid evaluation should be carried out on the basis of an evaluation plan approved by the Commission. While such a plan should usually be drawn up when the scheme is designed and should be approved in time for the scheme to enter into force, this might not be possible in all cases. Therefore, in order not to delay the entry into force of aid schemes, this Regulation should apply to such schemes for an initial maximum period of six months. The Commission should be able to extend this period once the evaluation plan is approved. To that end, the evaluation plan should be notified to the Commission within 20 working days following the scheme’s entry into force. The Commission should also exceptionally have the possibility to decide that an evaluation is not necessary given the specific characteristics of the case.

(32) The Member States should be required to provide the Commission with all the information it needs to assess the evaluation plan. The Commission should also have the possibility to request additional information without undue delay, if needed. Alterations of schemes subject to an evaluation, other than modifications which cannot affect the compatibility of the aid scheme within the scope of this Regulation or cannot significantly affect the content of the approved evaluation plan, should be excluded from this Regulation’s scope. Alterations such as purely formal modifications or administrative modifications, including those carried out under the Union co-financed measures, should not in principle be considered to significantly affect the content of the approved evaluation plan.

(33) To determine whether the notification thresholds and the maximum aid intensities laid down in this Regulation have been respected, the total amount of aid measures for the aided activity or project should be taken into account. This Regulation should specify the circumstances under which different categories of aid can be cumulated. Aid that is exempted from the notification requirements under this Regulation should be allowed to be cumulated with any other compatible aid exempted under other regulations or any other aid that is approved by the Commission as long as those measures concern different identifiable eligible costs. Where different sources of aid are related to the same – partly or fully overlapping – identifiable eligible costs, cumulation should be allowed up to the highest aid intensity or aid amount applicable to that aid under this Regulation. This Regulation should also set out special rules for cumulation of aid measures with and without identifiable eligible costs and for cumulation with de minimis aid. De minimis aid is often not granted for or attributable to specific identifiable eligible costs. In such cases, it should be possible to freely cumulate de minimis aid with State aid exempted under this Regulation. However, where de minimis aid is granted for the same identifiable eligible costs as State aid exempted under this Regulation, cumulation should only be allowed up to the maximum aid intensity as set out in Chapter II of this Regulation.

(34) Funding centrally managed by the Union institutions, agencies, joint undertakings or other Union bodies, which is not directly or indirectly under the control of Member States, does not constitute State aid. Where such funding is combined with State aid, only the State aid should be considered when determining whether notification thresholds and maximum aid intensities or maximum aid amounts have been respected. This should apply provided that the total amount of public funding granted in relation to the same eligible costs does not exceed the most favourable funding rate laid down in the applicable rules of Union law.

(35) The transparency of State aid is essential for the correct application of Treaty rules and leads to better compliance, greater accountability, peer reviews and ultimately more effective public spending. To ensure transparency, Member States should set up comprehensive websites, at regional or national level, with summary information about each aid measure exempted under this Regulation. Alternatively, Member States should be allowed to publish the summary information on each exempted aid measure in the Commission’s transparency award module. Following standard practice for the publication of information in accordance with Directive (EU) 2019/1024 of the European Parliament and of the Council (14), a standard format should be used. That format should allow for the information to be searched, downloaded and easily published on the internet. Links to the State aid websites of all the Member States should be published on the Commission’s website. In accordance with Article 2(2) of Regulation (EU) 2022/2586, summary information on each aid measure exempted under this Regulation should be published on the Commission’s website.

(36) State aid enforcement is highly dependent on the cooperation of Member States. Therefore, Member States should take all necessary measures to ensure compliance with this Regulation, including compliance of individual aid granted under block-exempted schemes with all relevant conditions.

(37) To ensure effective monitoring of aid measures in accordance with Regulation (EU) 2022/2586, it is appropriate to set out requirements regarding Member States’ reporting of aid measures that have been exempted in accordance with this Regulation. Moreover, it is appropriate to lay down rules on the records that Member States should keep on the aid exempted under this Regulation in light of the limitation period set out in Article 17 of Council Regulation (EU) 2015/1589 (15).

(38) To strengthen the effectiveness of the compatibility conditions set out in this Regulation, the Commission should be able to withdraw the benefit of the block exemption for the future in the event of failure to comply with those conditions. The Commission should be able to restrict that withdrawal to certain types of aid, to certain beneficiaries or to aid measures adopted by certain authorities where non-compliance with this Regulation affects only a limited group of measures or certain authorities. Such a targeted withdrawal should provide a proportionate remedy directly linked to the identified non-compliance. Where an aid measure is not notified and does not fulfil all the conditions to be exempted from notification, it constitutes unlawful aid, which the Commission is to examine under the relevant procedure as set out in Regulation (EU) 2015/1589 for non-notified aid. A withdrawal of the benefit of the block exemption for the future should not affect the fact that any previous measures complying with this Regulation were block exempted.

(39) To eliminate differences that might give rise to distortions of competition and trade and to facilitate coordination between different Union and national initiatives concerning SMEs, as well as for reasons of administrative clarity and legal certainty, the definition of an SME within the meaning of Annex I to this Regulation should be based on the definition in Commission Recommendation 2003/361/EC (16).

(40) State aid policy should be revised periodically on the basis of the Commission’s experience in this area. The period of application of this Regulation should therefore be limited. It is appropriate to lay down transitional provisions regulating the treatment of exempted aid schemes as from the end of the period of application of this Regulation. Such rules should give Member States time to adapt to any future regime,