2004/343/EC: Commission Decision of 16 December 2003 on the aid scheme implemented by France for the takeover of firms in difficulty (Text with EEA relevance) (notified under document number C(2003) 4636)

• Articles: 9

Article 1

The State aid scheme provided for in Article 44 septies of the General Tax Code in the form of a scheme of tax exemptions for companies taking over the assets of firms in difficulty that France has implemented in breach of Article 88(3) of the Treaty is incompatible with the common market, without prejudice to Articles 2 and 3.

Article 2

The exemptions granted under the scheme referred to in Article 1 does not constitute State aid if they fulfil the conditions laid down by Regulation (EC) No 69/2001 or by the de minimis rules applicable at the time of grant.

Article 3

Aid granted under the scheme referred to in Article 1 which fulfils the conditions laid down by the 1979 communication on regional aid systems or by the 1998 guidelines on national regional aid or by Regulation (EC) No 70/2001 is compatible with the common market to the amount of the admissible intensities.

Article 4

France shall abolish the aid scheme referred to in Article 1.

Article 5

France shall take all necessary measures to recover from its beneficiaries aid granted under the scheme referred to in Article 1, other than that referred to in Articles 2 and 3, and unlawfully made available to those beneficiaries.

Recovery shall be effected without delay and in accordance with the procedures of national law provided that they allow the immediate and effective execution of this Decision. The aid to be recovered shall include interest from the date on which it was at the disposal of the beneficiaries until the date of its recovery. Interest shall be calculated on the basis of the reference rate used for calculating the grant-equivalent of regional aid, on a compound basis in accordance with the Commission communication on the interest rates to be applied when aid granted unlawfully is being recovered.

Article 6

France shall inform the Commission, within two months of notification of this Decision, of the measures taken and to be taken in order to comply with it.

Article 7

France shall furnish this information on the basis of the attached questionnaire and shall draw up an exhaustive list of companies granted exemption under the scheme referred to in Article 1 and of the amounts paid in each case.

France shall draw up a list of companies in receipt of aid under the scheme referred to in Article 1 which does not fulfil the conditions laid down by Regulation (EC) No 69/2001, by the de minimis rules applicable at the time of grant of the aid, by Regulation (EC) No 70/2001, by the 1979 communication on regional aid systems or by the 1998 guidelines on national regional aid. The list shall also specify the amount of aid each company has received.

Article 8

This Decision is addressed to the French Republic.

Done at Brussels, 16 December 2003.

For the Commission

Mario Monti

Member of the Commission

(1) OJ C 284, 21.11.2002, p. 5.

(2) OJ C 384, 10.12.1998, p. 3.

(3) See point 37 of the notice.

(4) See footnote 1.

(5) Law No 88-1149 of 23.12.1988, Official Journal of the French Republic, 28 December 1988, p. 16320.

(6) Judgment in Case C-143/99 Adria-Wien Pipeline [2001] ECR 8365, paragraph 38.

(7) Article 206.1, last paragraph, of the General Tax Code.

(8) Case 30/59 Steenkolenmijnen [1961] ECR 1.

(9) See, most recently, the judgment in Case C-280/00 Altmark Trans, not yet reported, paragraph 81.

(10) Point 11 of the notice.

(11) See paragraph 14 of this Decision.

(12) Case C-143/99 Adria-Wien Pipeline, cited above, paragraphs 39 et seq.

(13) Joined Cases T-92/00 and T-103/00 Territorio Histórico de Álava [2002] ECR II-1385, paragraphs 48 and 49.

(14) OJ C 213, 19.8.1992, p. 2.

(15) OJ C 68, 6.3.1996, p. 9.

(16) OJ L 10, 13.1.2001, p. 30.

(17) See, inter alia, Commission Decision 2003/626/EC of 27 November 2002 on the aid scheme implemented by Germany - Thuringia loan programme for small and medium-sized enterprises (OJ L 223, 5.9.2003, p. 32).

(18) OJ C 119, 22.5.2002, p. 22.

(19) These criteria, which result from the interpretation of Commission Regulation (EC) No 70/2001 of 12 January 2001 on the application of Articles 87 and 88 of the EC Treaty to State aid to small and medium-sized enterprises (OJ L 10, 13.1.2001, p. 33) and from the abovementioned notice, are henceforth set out expressly in paragraph 1a of Article 10, inserted by the regulation adopted in principle by the Commission on 10 December 2003.

(20) OJ C 368, 23.12.1994, p. 12.

(21) OJ C 288, 9.10.1999, p. 2.

(22) Point 2.1.

(23) Point 2.1.

(24) OJ C 31, 3.2.1979, p. 9.

(25) OJ C 74, 10.3.1998, p. 9.

(26) As listed in Annex 1 to Decree No 76/325 of 14 April 1976 - Official Journal of the French Republic No 90 of 14 April 1976.

(27) OJ L 11, 12.1.1985, p. 28.

(28) See inter alia the Commission decisions in Cases N 515/94, N 699/94 and N 45/2000.

(29) See point 4.1 of the 1992 Community guidelines on State aid for small and medium-sized enterprises and point 4.2.1 of the 1996 Community guidelines on State aid for small and medium-sized enterprises (OJ C 213, 23.7.1996, p. 4).

(30) See the Sixth Report on Competition Policy (1976), points 253 to 255, and the 1992 and 1996 Community frameworks.

(31) OJ L 83, 27.3.1999, p. 1.

Schedules & Appendices

ANNEX

Information sheet on the recovery of unlawfully granted aid

1. What is the total number of aid recipients?

2. What is the total amount of aid granted?

3. What is the total amount of aid to be recovered?

4. How will your authorities calculate the amount of aid to be recovered?

- principal

- interest(1)

5. What measures are to be taken to secure the immediate and effective repayment of the aid in accordance with Article 14 of Council Regulation (EC) No 659/1999? Please specify the legal basis for those measures.

6. What measures have already been taken to secure the immediate and effective repayment of the aid in accordance with Article 14 of Council Regulation (EC) No 659/1999? Please specify the legal basis for those measures.

7. By what date should all the aid have been recovered?

8. Other comments.

(1) In accordance with the Commission communication on the interest rates to be applied when aid granted unlawfully is being recovered (OJ C 110, 8.5.2003, p. 21), the reference rate will be applied on a compound basis. The calculation of compound interest on an annual basis uses the formula Interest = [Capital (1 + Interest rate) Number of years] - Capital.