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Commission Decision (EU) 2015/810 of 23 January 2015 on State aid scheme SA.20326 (2013/C) (ex 2012/NN) implemented by Belgium (notified under document C(2015) 130) (Only the Dutch and French texts are authentic) (Text with EEA relevance)
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THE EUROPEAN COMMISSION,
Having regard to the Treaty on the Functioning of the European Union, and in particular the first subparagraph of Article 108(2) thereof(1),
Having regard to the Agreement on the European Economic Area, and in particular Article 62(1)(a) thereof,
Having called on interested parties to submit their comments pursuant to those articles(2), and having regard to their comments,
Whereas:
1. PROCEDURE
2. DESCRIPTION OF THE MEASURE
an exemption for the employment of researchers assigned to research projects carried out in partnership with universities or higher education colleges (hereinafter ‘measure 1’): 50 % exemption from payroll tax for companies paying salaries to researchers assigned to research projects carried out under partnership agreements with universities or higher education colleges based in the European Economic Area(5). The budget allocated to measure 1 was estimated at EUR 34 000 000;
an exemption for the employment of researchers holding certain qualifications (hereinafter ‘measure 2’): 25 % exemption from payroll tax for companies paying salaries to researchers holding certain scientific qualifications(6). The budget allocated to measure 2 was estimated at EUR 62 000 000;
an exemption for young innovative companies (hereinafter ‘measure 3’): 50 % exemption from payroll tax for companies qualifying as ‘young innovative companies’(7) and paying the salaries of their scientific staff. The budget allocated to measure 3 was estimated at EUR 20 000 000.
Belgium had failed to adopt the necessary measures to bring its legislation into line with Union law. The relevant provisions of national law did not contain any reference to the categories of research laid down in the EU legislation. They were not brought into line until June 2013(11);
Belgium had failed to amend the scheme to bring it into line before 1 January 2008 with the appropriate measures proposed by the Commission and accepted by Belgium(12);
Belgium had failed to notify the Commission of either the amendment or the extension of the scheme and had therefore implemented unlawful aid(13); and
during the monitoring exercise, Belgium failed to produce sufficient information on the individual aid paid out.
3. COMMENTS BY THE BELGIAN AUTHORITIES
4. COMMENTS BY THIRD PARTIES
5. ASSESSMENT OF THE AID
183 companies received aid of less than EUR 200 000 per period of 3 years over the whole reference period. This aid is covered by the de minimis Commission Regulation (EC) No 1998/2006(17) and was therefore excluded from the scope of the analysis;
the remaining 48 companies received aid in excess of EUR 200 000 and were therefore subject to an in-depth analysis. In respect of these companies, the Belgian authorities provided information on:
the research categories to which the projects carried out by the beneficiaries belonged (for the purposes of verifying compliance with the conditions set out in point 5.1 of the R&D&I Framework),
the method for calculating the aid intensity, together with examples (for the purposes of verifying compliance with the conditions set out in point 5.1 of the R&D&I Framework),
the date on which each company was set up (for the purposes of verifying compliance with the first condition set out in point 5.4 of the R&D&I Framework),
the percentage of company expenditure allocated to research and development (for the purposes of verifying compliance with the second condition set out in point 5.4 of the R&D&I Framework),
of the total amount received by each company, the proportion falling under measure 3 (and thus constituting State aid) and the proportion falling under measures 1 and 2 (for the purposes of verifying compliance with the third condition set out in point 5.4 of the R&D&I Framework).
According to point 5.1.1, ‘the aided part of the research project must completely fall within one or more of the following research categories: fundamental research, industrial research, experimental development.’
The royal decree of 23 March 2014(18) now provides that the Federal Scientific Policy Programming Department (Service public fédéral de Programmation Politique scientifique) is responsible, when examining the file, for checking the ‘description of research or development projects or programmes in respect of which an opinion is requested’ and thus for establishing whether the projects fall into one of the research categories provided for by the R&D&I Framework and the law. For each of the 48 companies subject to an in-depth review, the Belgian authorities provided a description of the research and development activities carried out and indicated which research category the projects fell into. The Commission was able to establish that the projects fell into one of the three categories laid down in the R&D&I Framework and concluded that the condition laid down in point 5.1.1 of the Framework had been met.
Point 5.1.2 of the R&D&I Framework gives the basic aid intensities (25 % for experimental development), which may be increased in certain cases, such as where the aid is to be given to SMEs (point 5.1.3(a) of the R&D&I Framework).
In their letter dated 3 March 2014, the Belgian authorities provided additional information on the two withholding rate increases that brought the applicable tax reduction to 80 %, in particular as regards compliance with the aid intensities laid down by the Decision. Applying the calculation method chosen by the Commission in the Decision, the Belgian authorities were able to show that an increase to an 80 % exemption from payroll tax resulted in a maximum intensity of 28,28 %. They also provided details of the intensities for the companies subject to an in-depth review. The Commission found that they were in line with point 5.1.3 of the R&D&I Framework, which lays down a ceiling of 35 % for medium-sized enterprises and 45 % for small enterprises for experimental development projects. The ceilings are higher for fundamental and industrial research.
Point 5.1.4 of the R&D&I Framework sets out the eligible costs. In recital 16 of the opening decision, the Commission noted that the relevant provisions of national law gave the categories of personnel for whom the exemption could be granted but did not specify how the tax authorities were to verify whether the staff concerned were assigned to a research and development project.
The Royal Decree of 23 March 2014 now provides that the Federal Scientific Policy Programming Department is responsible, when examining the file, for checking ‘the elements that demonstrate that the staff member will be employed on research and development projects or programmes’ using data provided by the applicant firms. The Commission finds that the relevant national legislation and its application by the Belgian authorities complies with point 5.1.4 of the R&D&I Framework.
For the 48 companies subject to an in-depth review, the Belgian authorities described the projects carried out by them and indicated the number and type of staff in respect of whom the exemption had been granted.
6. CONCLUSION
HAS ADOPTED THIS DECISION:
The partial exemption from payroll tax in favour of young innovative companies implemented by Belgium is compatible with the internal market under Article 107(3)(c) TFEU until 30 June 2014.
This Decision is addressed to the Kingdom of Belgium.
Done at Brussels, 23 January 2015.
For the Commission
Margrethe Vestager
Member of the Commission
With effect from 1 December 2009, Articles 87 and 88 of the EC Treaty have become Articles 107 and 108, respectively, of the Treaty on the Functioning of the European Union (‘TFEU’). The two sets of provisions are, in substance, identical. For the purposes of this Decision, references to Articles 107 and 108 of the TFEU should be understood as references to Articles 87 and 88, respectively, of the EC Treaty, where appropriate. The TFEU also introduced certain changes in terminology, such as the replacement of ‘Community’ by ‘Union’, ‘common market’ by ‘internal market’ and ‘Court of First Instance’ by ‘General Court’. The terminology used in this Decision is that of the TFEU.
See footnote 2.
See recital 5 of the Decision of 4 July 2006.
See recital 8 of the Decision of 4 July 2006.
See recital 12 of the Decision of 4 July 2006.
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).
See recital 26 of the Decision.
See Article 5a(3)(c) of Regulation (EC) No 70/2001, as amended by Commission Regulation (EC) No 364/2004 of 25 February 2004 amending Regulation (EC) No 70/2001 as regards the extension of its scope to include aid for research and development (OJ L 63, 28.2.2004, p. 22).
See recitals 17 et seq. of the opening decision.
Letter from the Government of the Brussels Capital Region dated 22 February 2008, letter from the Government of the Walloon Region dated 17 March 2008 and letter from the Government of the Flemish Region dated 3 July 2007.
See recitals 22 to 27 of the opening decision.
Commission Regulation (EU) No 651/2014 of 17 June 2014 declaring certain categories of aid compatible with the internal market in application of Articles 107 and 108 of the Treaty (OJ L 187, 26.6.2014, p. 1).
See recital 21 of the Decision of 4 July 2006.
Commission Regulation (EC) No 1998/2006 of 15 December 2006 on the application of Articles 87 and 88 of the Treaty to de minimis aid (OJ L 379, 28.12.2006, p. 5).
Royal Decree of 23 March 2014 amending, in respect of the exemption from the payment of payroll tax to the State, AR/CIR 92, pursuant to Article 275(2) and (3) of the Income Tax Code 1992. Belgisch Staatsblad/Moniteur Belge, 31.3.2014.
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