(fra kommisjonsbeslutningen) 

(1) Article 14 of the Treaty on the Functioning of the European Union (‘the Treaty’) requires the Union, without prejudice to Articles 93, 106 and 107 of the Treaty, to use its powers in such a way as to make sure that services of general economic interest (‘SGEI’) operate on the basis of principles and conditions which enable them to fulfil their missions.

(2) For certain SGEI to operate on the basis of principles and under conditions which enable them to fulfil their missions, financial support from the State may prove necessary to cover some or all of the specific costs resulting from the public service obligations. In accordance with Article 345 of the Treaty, it is irrelevant whether such SGEI are operated by public or private undertakings.

(3) Article 106(2) of the Treaty sets out that undertakings entrusted with the operation of SGEI or having the character of a revenue-producing monopoly are subject to the rules contained in the Treaty, in particular to the rules on competition, insofar as the application of those rules does not obstruct, in law or in fact, the performance of the tasks entrusted. This should, however, not affect the development of trade to such an extent as would be contrary to the interests of the Union.

(4) In its judgment in Altmark (1), the Court of Justice held that public service compensation does not constitute State aid within the meaning of Article 107 of the Treaty, provided that four cumulative criteria are met. First, the recipient undertaking must actually have public service obligations to discharge, and the obligations must be clearly defined. Second, the parameters on the basis of which the compensation is calculated must be established in advance in an objective and transparent manner. Third, the compensation must not exceed what is necessary to cover all or part of the costs incurred in the discharge of the public service obligations, taking into account the relevant receipts and a reasonable profit. Fourth, where the undertaking that is to discharge public service obligations, in a specific case, is not chosen pursuant to a public procurement procedure, which would allow for the selection of the tenderer capable of providing those services at the least cost to the community, the level of compensation needed must be determined on the basis of an analysis of the costs that a typical undertaking, well-run and adequately provided with the relevant means, would have incurred.

(5) Where those four criteria are not fulfilled and the general conditions for the applicability of Article 107(1) of the Treaty are met, public service compensation constitutes State aid and is subject to Articles 93, 106, 107 and 108 of the Treaty.

(6) In addition to this Decision, three instruments are relevant for the application of the State aid rules to compensation granted for the provision of SGEI:

(a) the Commission Communication on the application of the European Union State aid rules to compensation granted for the provision of SGEI (2) clarifies the application of Article 107 of the Treaty and the four criteria set by the Altmark ruling to such compensation;

(b) Commission Regulation (EU) 2023/2832 on the application of Articles 107 and 108 of the Treaty to de minimis aid for the provision of SGEI (3) lays down certain conditions – including the amount of the compensation – under which public service compensation shall be deemed not to meet all the criteria of Article 107(1);

(c) a framework for State aid in the form of public service compensation (4) which specifies how the Commission will analyse cases that are not covered by this Decision and therefore have to be notified to the Commission.

(7) Commission Decision 2012/21/EU (5) specifies the meaning and extent of the exception pursuant to Article 106(2) of the Treaty and sets out rules intended to enable effective monitoring of the fulfilment of the criteria set out in that provision. In light of the experience gained from the application of Decision 2012/21/EU, the changes in economic conditions, notably in relation to the housing crisis, as well as market developments, it is necessary to review the rules provided for in that decision.

(8) Decision 2012/21/EU should therefore be repealed and replaced by this Decision which lays down the conditions under which State aid in the form of compensation for an SGEI is exempt from the prior notification requirement pursuant to Article 108(3) of the Treaty where it can be deemed compatible with Article 106(2) of the Treaty.

(9) State aid in the form of compensation for an SGEI may be deemed compatible only if it is granted in order to ensure the provision of SGEI as referred to in Article 106(2) of the Treaty. It is clear from the case-law (6) that, in the absence of sectoral Union rules governing the matter, Member States have a wide margin of discretion in defining services that could be classified as being SGEI. Thus, the Commission’s task is to ensure that there is no manifest error as regards the definition of SGEI.

(10) Provided certain conditions are met, limited amounts of compensation granted to undertakings entrusted with the provision of SGEI do not affect the development of trade and competition to such an extent as would be contrary to the interests of the Union. For the identification of the aid recipient in the present Decision, the notion of ‘single undertaking’ as defined in Article 2(2) of Commission Regulation (EU) 2023/2832 (7) should apply. An individual State aid notification should therefore, provided certain conditions are met, not be required for compensation which is less than a specified annual amount of compensation. It is also appropriate to increase that general compensation threshold to reflect inflation since the adoption of Decision 2012/21/EU.

(11) An undertaking can be entrusted with the operation of multiple SGEI and receive compensation up to the general compensation threshold for each SGEI entrusted to it. The same applies where an undertaking is jointly or individually entrusted with the operation of an SGEI by multiple Member States. Therefore, that entrusted undertaking should be able to receive compensation up to the general threshold from each entrusting Member State where the service is provided.

(12) Hospitals and undertakings in charge of social services, including when they are organised as non-profit entities (8), which are entrusted with tasks of general economic interest, have specific characteristics that need to be taken into consideration. In particular, account should be taken of the fact that, in the current economic conditions, social services may require an amount of aid that goes beyond the general compensation threshold set out in this Decision to compensate for the public service costs while a larger amount of compensation for social services does not necessarily produce a greater risk of distortions of competition. Accordingly, undertakings in charge of social services should also benefit from the exemption from notification provided for in this Decision, even if the amount of compensation they receive exceeds the general compensation threshold. The exemption from notification should also apply to hospitals providing medical care, including, where applicable, emergency services and ancillary services directly related to their main activities, in particular in the field of medical research. In order to benefit from the exemption from notification, social services should be clearly defined and address social needs as regards health and long-term care, childcare, access to and reintegration into the labour market and the care and social inclusion of vulnerable groups. That includes services supporting the independent living and community inclusion of persons with disabilities, for example personal assistance, centres for independent living, assistive technology services, rehabilitation and habilitation services.

(13) For the same reasons, compensation for the provision of social housing SGEI for disadvantaged households or socially less advantaged groups, including people experiencing homelessness, who due to solvency constraints are unable to access housing at market conditions, can be exempted from the notification requirement even if it exceeds the general compensation threshold. It should be possible for the compensation for social housing services to cover, amongst other things, investment costs for the construction of new buildings, including land acquisition, the acquisition of existing apartments or buildings to be transformed or renovated, the transformation or the renovation of existing apartments or buildings (or individual building elements (9) thereof), the costs of ensuring compliance with accessibility requirements for older people or persons with disabilities, compliance with environmental standards, and the costs of adaptation for climate resilience, including water resilience, as well as operating costs, where necessary for the operation of the service.

(14) Since the adoption of Decision 2012/21/EU, housing affordability has become a significant issue in many Member States, not only affecting disadvantaged households or socially less advantaged groups but also the middle-income groups, with an increasing number of people facing difficulties in securing quality housing at an affordable price. Housing issues may be particularly acute in certain locations such as high-demand touristic and large cities, fast-growing urban and economic hubs, remote outermost and isolated regions. It is therefore necessary to take measures to increase housing availability, through rental housing or home ownership, at affordable prices to alleviate pressure in local housing markets. To facilitate public initiatives supporting affordable housing, it is appropriate to establish specific conditions for affordable housing SGEI to be exempted from the notification requirement under Article 108(3) of the Treaty.

(15) While disadvantaged households or socially less advantaged groups, including people experiencing homelessness, can benefit from social housing SGEI, such SGEI may also include a limited share of non-disadvantaged households to prevent spatial concentrations of poverty.

(16) When Member States need to provide housing to mainly non-disadvantaged households, they can set up affordable housing SGEI which mainly benefit households that cannot access housing at affordable prices because of the conditions in the relevant markets but are not disadvantaged. Nevertheless, affordable housing SGEI may still include a share of disadvantaged households. The beneficiaries of affordable housing SGEI should be determined by taking into account primarily the household income compared to housing market prices and the composition of the household, combined, if necessary, with other factors. For example, the need for affordable housing could be reduced where members of households own or co-own residential property. Member States should also be able to give priority to affordable housing to people likely to have difficulties accessing the housing markets, including for instance people fulfilling an essential societal role, persons with disabilities, older people or students, or single parents.

(17) Furthermore, Member States should be able to promote inclusive neighbourhoods through housing models such as for example the New European Bauhaus (10) that prioritise access to subsidised housing based on social mix goals, and models that combine subsidised housing (social or affordable housing) and market housing, as well as by making the housing environment and neighbourhoods accessible for the inclusion of persons with disabilities.

(18) To address the housing crisis effectively, affordable housing SGEI may often require an amount of aid beyond the general compensation threshold in this Decision to compensate for the public service costs. Indeed, to bridge the supply-demand gap over the next decade, the European Commission (11) estimates that Europe will need to add about 650 000 dwellings per year to the 1,6 million currently built. Delivering those extra housing units would cost approximately EUR 153 billion annually. Significant investments in affordable housing do not necessarily entail significant distortion risks. Accordingly, compensation for the provision of affordable housing SGEI for households that are unable to access affordable housing, should be exempted from the notification requirement even if it exceeds the general compensation threshold and provided that sufficient safeguards, as set out in this Decision and its Annex, are put in place to limit competition distortion.

(19) Compensation for the provision of affordable housing SGEI should not lead to undue interference in the normal market conditions, which could crowd out private investment and significantly distort competition. At the same time, it is important that the most vulnerable households continue to benefit from social housing SGEI. Therefore, when designing SGEI for social and affordable housing, Member States should comply with a specific set of requirements.

(20) Member States should be able to measure housing affordability through various indicators, such as a rent-to-income ratio (12), a mortgage payment to income ratio (13), a price to income ratio (14), the housing cost overburden rate, or years of income needed to buy a home (15). The benchmark values of these indicators, which identify situations of inability to access affordable housing, at national, regional or local level, should be set by Member States. Energy costs should be taken into account when determining affordability. Member States should be able to demonstrate that the identification of affordable housing needs is based on these indicators.

(21) Compensation for affordable housing SGEI should in principle focus on investment costs for the construction of new buildings, including land acquisition, the acquisition of existing apartments or buildings to be transformed or renovated, the transformation or the renovation of existing apartments or buildings (or individual building elements thereof), compliance with accessibility requirements for older people or persons with disabilities, compliance with environmental standards and adaptation for climate resilience, including water resilience. Where necessary for the operation of the service, such compensation may also cover operating costs.

(22) To avoid misuse of affordable housing, for example for secondary residence or short-term rentals, Member States should ensure that the housing is and remains used for the right purpose.

(23) Prices for affordable housing SGEI need to be in a range that ensures housing affordability while not going beyond that objective, to avoid undue distortion of competition. Member States may also take energy costs and other housing-related expenses into account when determining prices for affordable housing, to reflect the total financial burden on households.

(24) In order to ensure that social and affordable housing SGEI are adapted to the needs of households, Member States should apply minimum quality, environmental and accessibility criteria for such services. Such criteria include for example accessibility for persons with disabilities and older people, climate resilience, minimum surface area, heating and cooling, ventilation, energy performance, sanitary facilities and water supply, stability of the building construction and fire safety, and broadband readiness of the building. Member States can also consider the accessibility, including for persons with disabilities, of affordable transport to essential services such as healthcare, education and financial services, when determining the locations for the social and affordable housing projects.

(25) In order to preserve competition in the affordable housing market segment, affordable housing SGEI should be open on equal terms to all market participants able to provide such services.

(26) Social or affordable housing buildings subsidised within SGEI should remain designated for the purposes of the provision of social or affordable housing for a sufficiently long period, of at least 20 years, to prevent speculation. At the same time, in specific duly justified circumstances, such as, the provision of temporary accommodation in the event of extreme weather and climate events or other natural disasters, operational aid schemes or investment schemes with low public support, schemes with a shorter duration may be justified. In addition, it is justified to exempt from this obligation of respecting a minimum duration of 20 years, social and affordable housing SGEI providers whose activities are essentially limited to the provision of that SGEI, possibly with annual commercial revenues not exceeding 5% of total annual revenues during the entrustment period, which can be considered ancillary to the SGEI, and who are legally obliged to reinvest all their profits in the provision of that service. The purpose of this exemption is to allow these housing SGEI providers to sell social or affordable housing units, in order to reinvest in better suited social or affordable housing when this appears necessary. When applying this exemption, Member States should ensure that the commercial revenues remain ancillary for instance through random checks, in particular in case of suspicion of abuse.

(27) A critical medicine is a medicinal product for which insufficient supply results in serious harm or risk of serious harm to patients. There can be risks and weaknesses in the supply chain of certain critical medicines, which may compromise the continuous supply of critical medicines to patients in the Union, in particular in crisis situations, such as a pandemic. Such risks and weaknesses potentially warrant targeted public intervention, including funding, in particular in manufacturing capacities for critical medicines, their active substances and other key inputs. When a market failure regarding the security of supply of a specific critical medicine is identified at Union level or at the level of one or several Member States by means of a vulnerability assessment, all or some of the Member States concerned should be able to choose to entrust specific public service obligations to operators to enhance the security of supply for such critical medicines. Compensation for critical medicines SGEI below the general compensation threshold should therefore be exempted from the notification requirement pursuant to Article 108(3) of the Treaty.

(28) Article 93 of the Treaty constitutes a lex specialis with regard to Article 106(2) of the Treaty. Article 93 lays down the rules applicable to public service compensation in the land transport sector. As regards passenger transport, Article 93 is implemented by Regulation (EC) No 1370/2007 of the European Parliament and of the Council (16), which lays down the rules applicable to the compensation of public service obligations in public passenger traffic. The application of Regulation (EC) No 1370/2007 to inland waterway passenger traffic is at the discretion of the Member States. Regulation (EC) No 1370/2007 exempts from notification pursuant to Article 108(3) of the Treaty all compensation in the land transport sector that fulfils the conditions of that Regulation. As regards freight transport, the Communication from the Commission, Guidelines on State aid for land and multimodal transport, which lays down the conditions under which State aid that represents reimbursement for the discharge of certain obligations inherent in the concept of a public service in the rail freight transport sector can be found compatible with the internal market pursuant to Article 93 of the Treaty, provides an interpretation of that Article. In accordance with the judgment in Altmark, compensation in the land transport sector that does not comply with the provisions of Article 93 of the Treaty cannot be declared compatible with the Treaty on the basis of Article 106(2) of the Treaty, or on the basis of any other Treaty provision. Consequently, this Decision should not apply to the land transport sector.

(29) Unlike land transport, the maritime and air transport sectors are subject to Article 106(2) of the Treaty. Certain rules applicable to public service compensation in the air and maritime transport sectors are found in Regulation (EC) No 1008/2008 of the European Parliament and of the Council (17) and in Council Regulation (EEC) No 3577/92 (18). However, unlike Regulation (EC) No 1370/2007, those Regulations do not refer to the compatibility of the possible State aid elements, nor do they provide for an exemption from the obligation to notify pursuant to Article 108(3) of the Treaty. This Decision should therefore apply to public service compensation in the air and maritime transport sectors provided that, in addition to fulfilling the conditions set out in this Decision, such compensation also complies with the sectoral rules set out in Regulation (EC) 1008/2008 and Regulation (EEC) 3577/92, where applicable.

(30) In the specific cases of public service compensation for air links or maritime links to islands and for airports and ports which constitute SGEI as referred to in Article 106(2) of the Treaty, it is appropriate to provide thresholds based on the average annual number of passengers. In addition, when the maritime links to islands include freight traffic, it is appropriate to provide thresholds based on an average annual volume of freight to be established on the basis of the typical ratio between passenger capacity and vehicle capacity. Such thresholds reflect the economic reality of such activities and their character of SGEI. Moreover, based on the experience gained under the 2014 Aviation Guidelines (19), even airports with an annual passenger traffic of more than 200 000 passengers are still often not profitable. To reflect that economic reality, it is appropriate to increase the passenger threshold set by Decision 2012/21/EU from 200 000 passengers to 500 000 passengers. Finally, taking into account the role of ports, and especially ports for insular and outermost regions, the current threshold should be increased from 300 000 to 400 000 passengers. Ports in outermost regions, due to their crucial role for connectivity because of their geographic distance from the Member State’s mainland, should benefit from the exemption from the notification requirement irrespective of the annual passengers or freight traffic.

(31) The extent to which a particular compensation measure affects trade and competition depends not only on the average amount of compensation received per year and the sector concerned, but also on the overall duration of the period of entrustment of the SGEI. Unless a longer period is justified by the need for a significant investment, for example in the area of social or affordable housing where investments are typically amortised over more than 20 years, the application of this Decision should be limited to periods of entrustment not exceeding 10 years.

(32) In order for Article 106(2) of the Treaty to apply, the undertaking in question has to be specifically entrusted by the Member State with the operation of a particular SGEI.

(33) In order to ensure that the criteria set out in Article 106(2) of the Treaty are met, it is necessary to lay down more precise conditions and requirements that should be fulfilled in respect of the entrustment of the operation of SGEI. The amount of compensation can be properly calculated and checked only if the public service obligations incumbent on the undertakings and any obligations incumbent on the State are clearly set out in one or more acts of the competent public authorities in the Member State concerned. The form of the instrument can vary from one Member State to another but it should specify, at least, the undertakings concerned, the precise content and duration of and, where appropriate, the territory concerned by the public service obligations imposed, the granting of any exclusive or special rights, and describe the compensation mechanism and the parameters for determining the compensation and for avoiding and recovering any possible overcompensation.

(34) In order to avoid unjustified distortions of competition, the compensation should not exceed what is necessary to cover the net costs incurred by the undertaking in operating the service, including a reasonable profit.

(35) The net cost to be taken into account should be calculated as the difference between the cost incurred in operating the SGEI and the revenue earned from the SGEI or, alternatively, as the difference between the net cost of operating with the public service obligation and the net cost or profit of operating without the public service obligation. In particular, if the public service obligation leads to a reduction of the revenue, for instance due to regulated tariffs, but does not affect the costs, it should be possible to determine the net cost incurred in discharging the public service obligation on the basis of the foregone revenue. In order to avoid unjustified distortions of competition, all revenues earned from the SGEI, that is to say, any revenues that the provider would not have obtained had it not been entrusted with the obligation, should be taken into account for the purposes of calculating the amount of compensation. If the undertaking in question holds special or exclusive rights linked to activities, other than the SGEI for which the aid is granted, that generate profits in excess of the reasonable profit, or benefits from other advantages granted by the State, those profits or benefits should be included in its revenue, irrespective of their classification for the purposes of Article 107 of the Treaty.

(36) In order to control possible cross-subsidisation between services, where an undertaking carries out activities falling both inside and outside the scope of a particular SGEI or several SGEI, the internal accounts should show separately the costs and receipts associated with each SGEI and those of other services, as well as the parameters for allocating costs and revenues.

(37) Compensation in excess of what is necessary to cover the net costs incurred by the undertaking concerned in operating the SGEI should constitute incompatible State aid that should be repaid with interest to the State. Compensation granted for the operation of an SGEI but actually used by the undertaking concerned to operate on another market for purposes other than those specified in the act of entrustment is not necessary for the operation of the SGEI and can consequently also constitute incompatible State aid that should be repaid with interest to the State.

(38) Profit of the service provider not exceeding the relevant swap rate plus 100 basis points should not be regarded as unreasonable. In that context, the relevant swap rate is viewed as an appropriate rate of return for a risk-free investment. The premium of 100 basis points serves, among other things, to compensate for liquidity risk related to the provision of capital which is committed for the operation of the service during the period of entrustment.

(39) In cases where the service provider does not bear a substantial degree of commercial risk, for instance because the costs it incurs in the operation of the service are compensated in full, profits exceeding the benchmark of the relevant swap rate plus 100 basis points should not be considered reasonable.

(40) Where, by reason of specific circumstances, it is not appropriate to use the rate of return on capital, Member States should be able to rely on other profit level indicators to determine what the reasonable profit should be, such as the average return on equity, return on capital employed, return on assets or return on sales.

(41) In determining what constitutes a reasonable profit, Member States should be able to introduce incentive criteria relating, in particular, to the quality of service provided and gains in productive efficiency. Efficiency gains should not reduce the quality of the service provided. For instance, Member States should be able to establish productive efficiency targets in the entrustment act whereby the level of compensation depends upon the extent to which these productive efficiency targets have been met. The entrustment act can provide that if the undertaking does not meet the objectives, the compensation is to be reduced by applying a calculation method specified therein, whereas if the undertaking exceeds the objectives, the compensation may be increased by applying a method specified in the entrustment act. Any rewards linked to productive efficiency gains should be set at a level which allows a balanced sharing of those gains between the undertaking and the Member State and/or the users.

(42) On the basis of the experience gained in the application of Decision 2012/21/EU, the obligation to have ex post controls of overcompensation should be adjusted to lighten the administrative burden for Member States. Therefore, their frequency should be reduced and Member States should be exempted from such controls when the compensation is fixed upfront based on a credible business plan. Moreover, when the activity of the provider of the SGEI is essentially limited to the provision of that SGEI, possibly with annual commercial revenues not exceeding 5 % of total annual revenues during the entrustment period, which can be considered ancillary to the SGEI, and the provider is legally obliged to reinvest all its profits into that SGEI, the risk of undue distortions linked to potential overcompensation is limited. In that case, the performance of ex post checks to verify the absence of overcompensation should also not be necessary. However, when applying this exemption, Member States should ensure that the commercial revenues remain ancillary for instance through random checks, in particular in case of suspicion of abuse.

(43) In order to reduce the administrative burden, the reporting obligations imposed by Decision 2012/21/EU should be removed. In the same way, for simplification purposes the obligation to refer to that Decision in the entrustment act should also be removed. In order to maintain a sufficient level of transparency regarding the compensation granted for SGEI, the transparency obligations laid down in Decision 2012/21/EU should be adjusted. As regards the publication of information on individual aid awards it is appropriate to set thresholds above which that publication can be considered proportionate taking into account the amount of the aid.

(44) Exemption from the requirement of prior notification for certain SGEI should not rule out the possibility for Member States to notify a specific aid measure. In the event of such a notification, or if the Commission assesses the compatibility of a specific aid measure following a complaint or ex officio, the Commission should assess whether the relevant conditions are met. Where that is not the case, the measure should be assessed in accordance with the principles contained in the Commission Communication on a framework for State aid in the form of public service compensation (20).

(45) This Decision should apply without prejudice to the provisions of Commission Directive 2006/111/EC (21).

(46) This Decision should apply without prejudice to the Union provisions in the field of competition, in particular Articles 101 and 102 of the Treaty.

(47) This Decision should apply without prejudice to the Union provisions in the field of public procurement.

(48) This Decision should apply without prejudice to stricter provisions relating to public service obligations that are contained in sectoral Union legislation.

(49) Aid schemes put into effect in accordance with Decision 2012/21/EU before the entry into force of this Decision should continue to be compatible with the internal market and exempt from the notification requirement for a further period of 2 years. Aid put into effect before the entry into force of this Decision that was not awarded in accordance with Decision 2012/21/EU but fulfils the conditions laid down in this Decision should be considered to be compatible with the internal market and exempt from the notification requirement. Since this Decision introduces new conditions, limited in their effect, for social SGEI, by way of derogation, and in order to protect the beneficiaries of these existing social SGEI, also taking account of the limited potential for competition distortions associated with such SGEI, an aid scheme or individual aid for any social SGEI which has taken effect before the entry into force of this Decision that was compatible with the internal market and exempted from the notification requirement should continue to be compatible with the internal market until the end of the duration of the entrustment act.

(50) The Commission should review this Decision, as necessary, taking into consideration the experience acquired in its implementation,