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Fundamentals of EU State Aid Law

Source: Dispatch of the Federal Council on the Bilateral III package, Chapter 2.2.5 (pp. 150–153)
PDF of the Dispatch

Summary

EU state aid law constitutes the reference framework for the aid provisions in the bilateral agreements. Art. 107(1) TFEU defines the notion of state aid and establishes a prohibition in principle, which is however tempered by numerous exceptions. The most important instruments are the General Block Exemption Regulation (GBER), the de minimis regulations and the rules on services of general economic interest (SGEI). Since 2023, the Foreign Subsidies Regulation complements the system.

Art. 107 TFEU – Aid definition

The EU law definition of state aid comprises four cumulative criteria:

  1. State resources: the aid is granted by the State or through State resources
  2. Selectivity: it favours certain undertakings or the production of certain goods
  3. Distortion of competition: it distorts or threatens to distort competition
  4. Effect on trade: it affects trade between Member States

Only when all four criteria are simultaneously fulfilled does an aid within the meaning of EU law exist.

Aid prohibition and exceptions

The prohibition in principle under Art. 107(1) TFEU is qualified by extensive exceptions:

Automatic exceptions (Art. 107(2) TFEU)

  • Aid having a social character granted to individual consumers
  • Aid to make good the damage caused by natural disasters
  • Aid granted to certain areas of Germany (historical)

Discretionary exceptions (Art. 107(3) TFEU)

  • Promotion of the economic development of disadvantaged areas
  • Projects of common European interest
  • Facilitation of the development of certain economic activities
  • Promotion of culture and heritage conservation
  • Art. 93 TFEU: transport coordination (particularly relevant for LTA and ATA)
  • Art. 106(2) TFEU: public undertakings and public service

GBER – General Block Exemption Regulation

The GBER automatically exempts broad categories of aid from the notification obligation, provided certain thresholds and conditions are met:

Category Examples
Research and development Basic research, experimental development
SME support Investment and operating aid for SMEs
Environmental protection Pollution reduction measures
Energy Renewable energy, energy efficiency
Training General and specific training measures
Culture and cultural heritage Support for cultural institutions and events
Infrastructure Local infrastructure, broadband deployment
Sport Sports infrastructure, multifunctional recreational infrastructure

The GBER covers an estimated 95% of all state aid in the EU.

De minimis regulations

Small-scale aid below certain thresholds is considered not to distort competition and is exempt from notification:

Regulation Threshold Period
General de minimis EUR 300,000 3 years (rolling)
De minimis SGEI EUR 750,000 3 years
De minimis agriculture EUR 25,000 3 years
De minimis fisheries EUR 40,000 3 years

The general de minimis threshold was raised in 2024 from EUR 200,000 to EUR 300,000.

SGEI – Services of General Economic Interest

SGEI are economic activities serving the general interest that would not be sufficiently provided by the market without state intervention:

  • Transport networks: public transport, rail network
  • Energy supply: basic supply, network infrastructure
  • Social services: healthcare, social institutions
  • Postal services: universal service
  • Broadband: coverage of underserved areas

SGEI largely correspond to the Swiss concept of public service (basic supply). Compensation for SGEI may, under certain conditions (Altmark criteria), not constitute aid.

Foreign Subsidies Regulation

Since July 2023, the EU Foreign Subsidies Regulation (FSR) has been in force. It flanks EU state aid law vis-à-vis third countries:

  • Covers subsidies from third countries to undertakings active in the EU
  • Complements existing aid law with an external economic policy dimension
  • Primarily aimed at distortive subsidies from China, but in principle against all third countries
  • Relevant for Switzerland as context, but not directly applicable to the bilateral aid provisions

Key points

Aspect Details
Legal basis Art. 107–109 TFEU
Principle Aid prohibition with extensive exceptions
GBER coverage ~95% of all aid in the EU
De minimis threshold EUR 300,000 / 3 years (since 2024)
SGEI Corresponds to Swiss public service
Foreign Subsidies Reg. In force since 2023, not directly applicable
Significance for CH Reference framework, not adopted 1:1

References