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Darstellung: System
Sprache: DE

State Aid Provisions in Detail

Source: Dispatch of the Federal Council on the Bilateral III package, Chapter 2.2.6 (pp. 153–164)
PDF of the Dispatch

Summary

The international law provisions on state aid form the core of aid monitoring in the Switzerland–EU package. They define what constitutes state aid, establish a prohibition in principle with extensive exceptions, and regulate the monitoring system according to the two-pillar approach. The central point is that the aid definition largely corresponds to Art. 107(1) TFEU but is narrower: it applies only within the scope of the respective agreements. The Swiss system must be equivalent to the EU system, but not identical.

Objective

The aid provisions pursue a clear objective:

  • Equal competitive conditions (Level Playing Field) for Swiss and EU undertakings
  • Only within the scope of the three agreements concerned (ATA, LTA, Electricity Agreement)
  • No general aid control across all economic sectors
  • Protection of functioning internal market access in the three sectors

Aid definition

The definition is based on Art. 107(1) TFEU but is specifically tailored to the agreement context:

Four cumulative criteria

No. Criterion Explanation
1 State resources Aid granted by the State or through state resources (Confederation, cantons, municipalities, public undertakings)
2 Selectivity Advantage granted to certain undertakings or productions
3 Distortion of competition Actual or potential distortion of competition
4 Effect on trade Impact on trade between the contracting parties within the scope

Essential difference from EU law

The fourth criterion (“effect on trade”) refers only to trade within the scope of the respective agreement – not to the entire internal market. The Swiss definition is thus narrower than the EU definition.

Principle and exceptions

Prohibition in principle

State aid fulfilling all four criteria is in principle incompatible with the proper functioning of the agreements concerned.

Exceptions

The prohibition is qualified by extensive exceptions:

Category Description
Natural disasters Aid to make good the damage caused by natural disasters or extraordinary events
Economic development Promotion of economic development of regions with a low standard of living
Common interest Projects of common interest of both contracting parties
Climate and environment Aid for climate protection, environmental protection, energy efficiency
Research Promotion of research, development and innovation
Cultural promotion Preservation of cultural heritage, promotion of cultural activities
De minimis Small-scale aid below the thresholds
GBER categories Aid exempt from notification under the block exemption

De minimis threshold

Aid below the de minimis threshold is considered not to distort competition:

  • Threshold according to the applicable EU de minimis regulation
  • Currently: EUR 300,000 per undertaking over 3 years (rolling)
  • Increased threshold for SGEI: EUR 750,000
  • No notification obligation, but registration obligation

Monitoring system (two pillars)

The monitoring system is structured according to the two-pillar model:

Swiss pillar

  • Authority: COMCO aid chamber
  • Jurisdiction: aid on Swiss territory
  • Procedure: notification → simple examination → where applicable in-depth examination → opinion
  • Legal recourse: Swiss courts (cantonal courts, then Federal Supreme Court)

EU pillar

  • Authority: European Commission
  • Jurisdiction: aid in EU Member States
  • Procedure: existing EU aid procedures
  • Legal recourse: ECJ

Equivalence

The Swiss system must be equivalent to the EU system – this means:

  • Comparable effectiveness of monitoring
  • Comparable procedural guarantees
  • Not necessarily identical institutional structures
  • No subordination to EU institutions

Transparency

The aid provisions contain comprehensive transparency obligations:

  • Publication of aid granted above certain thresholds
  • Opinions of the monitoring authority publicly accessible
  • Decisions (including exemptions) published
  • Aid register: central recording of all aid granted
  • Reporting: regular reports to the Joint Committee

Existing aid

A separate procedure applies to aid already in existence:

  • Transitional period: 5 years after entry into force of the aid protocols
  • Prima facie assessment: initial assessment of whether existing measures constitute aid
  • Inventory: systematic recording of all potentially affected measures
  • Adaptation period: sufficient time for any adaptations of existing regulations
  • No retroactive prohibition of aid already granted

The integration of EU legal acts on state aid follows a special equivalence mechanism:

  • Not via the general dynamic adoption of law
  • Special mechanism for aid legal acts (GBER, de minimis regulations, etc.)
  • The Joint Committee decides on the adoption of new EU legal acts
  • Switzerland retains a right of participation and can request adaptations
  • In case of non-adoption: consultation procedure, but no automatic sanctions

Final provisions

The entry into force of the aid provisions is linked to the stabilisation component of the overall package:

  • The aid protocols enter into force together with the respective agreements
  • Separate entry into force not possible (package solution)
  • The State Aid Monitoring Act enters into force 5 years after the protocols
  • No early application foreseen

Key points

Aspect Details
Objective Level Playing Field in 3 sectors
Definition Like Art. 107 TFEU, but narrower (only agreement scope)
Principle Prohibition with extensive exceptions
Equivalence CH system equivalent, not identical
Transparency Comprehensive publication obligations
Existing aid 5-year transitional period, prima facie assessment
EU law adoption Special equivalence mechanism
Entry into force Linked to stabilisation component

References