State Aid: ESA provides guidance on what public measures constitute state aid

18.1.2017

PR(17)02

The EFTA Surveillance Authority (ESA) has adopted new guidelines on when a public measure does or does not involve state aid. The guidelines correspond to similar guidance adopted by the European Commission.
The guidelines will help public authorities and companies identify when public support measures can be granted free of state aid. The overall purpose is to provide legal certainty and cut red tape for public authorities and companies as well as allow ESA to focus on cases with the biggest impact on the Single Market.

In particular, the guidelines clarify the elements of state aid, such as the notion of economic activity, the origin of public funding, the granting of an advantage, the selective nature of the advantage, and the effects on competition and trade between EEA States.

Key clarifications

• Economic activities vs non-economic activities:social security schemes, public hospitals, public education services, culture and heritage conservation activities offered to the public free of charge, do not in principle constitute economic activities;
• The interplay between public procurement and state aid: when public authorities buy or sell assets, goods or services following the EEA rules on public procurement, it can be presumed that no state aid is involved;
• Tax measures: public authorities are free to adopt legislation concerning economic policy, as long as such legislation does not entail incompatible state aid, nor does it discriminate between comparable operators;
• Infrastructure investments: public funding of infrastructure that is not meant to be commercially exploited does not in principle involve state aid (e.g. funding for infrastructure that is used for activities in the exercise of public powers, e.g. military activities, or for infrastructure that is for free public use, e.g. public roads). Moreover, the guidelines stress that the assessment of state aid must be done at different levels, i.e. developer/owner, operator and the end users, providing also a sector-by-sector overview. For example, if an operator or user pays a market price for the infrastructure, following a public tender in line with the EEA rules on public procurement, then state aid is excluded.
  

The guidelines are available here.

For further information, please contact:

Ms. Anne Vestbakke
Head of Communications
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