- Member States must ensure that individual awards of de minimis aid do not breach the maximum allowable amount per undertaking in any three year period.
- They can ensure that the maximum amount is not exceeded either by establishing a national register or by checking the amounts already granted to the applicant undertaking and by confirming that any new award will not bring the total amount over the threshold defined in a de minimis aid regulation.
- If not more than three years have elapsed from the setting up of the national register of de minimis aid, granting authorities must request a self-declaration from aid applicants.
Introduction
De minimis Regulation 2023/2831 stipulates that, as of 1 January 2026, Member States must set up a national register of de minimis aid, must notify that register of every de minimis aid award and must inform the Commission of all de minimis granted in each year. The purpose of these three rules is to increase transparency and at the same time reduce administrative burden. They will increase transparency because all Member States will collect at a central point de minimis aid data and their submission to the Commission will enable comparison of Member States.
Currently, aid applicants must be informed whenever the aid they receive is classified as de minimis, are obliged to label it as such in their books and must declare it to any public authority from which they request any new de minimis aid. These requirements create considerable administrative burden for both aid recipients and aid grantors and delays in the granting of de minimis aid. By requiring the establishment of national aid registers, the intention of Regulation 2023/2831 is to reduce administrative burden. As of 1 January 2029 – i.e. three years from 1 January 2026 – granting authorities will not have to ask aid applicants how much de minimis aid was granted to them in the previous three-year period. Granting authorities will only have to check the national register.
It so happens that on 15 January 2026, the Court of Justice of the EU [CJEU] delivered a judgment on the obligation of Member States to check the sum of individual de minimis aid awards in order to ensure that the threshold of EUR 300,000 is not exceeded. The CJEU rendered its judgment in case C-615/24, Ambito territoriale di caccia Ancona 2, in response to a request for a preliminary ruling by an Italian court concerning the interpretation of the concept of de minimis aid in agriculture, as defined in Regulation 1408/2013.[1]
A dispute had arisen between Azienda Agricola Camarzano di RK [Azienda Agricola], an agricultural undertaking, and Ambito territoriale di caccia Ancona 2 [ATC], a public authority responsible for the management of hunting grounds, concerning a request for compensation for damage caused Azienda Agricola’s organic durum wheat crops by wild animals.
In June 2014, Azienda Agricola asked the ATC to assess damage to it caused by animals. In July 2014, an expert, found that the damage suffered by Azienda Agricola amounted to EUR 1,000. The ATC informed Azienda Agricola that it could pay that amount only with some delay, after receiving the necessary funds from the regional authority. The ATC, however, did not inform Azienda Agricola that the compensation requested was de minimis in nature, nor did it ask it to declare whether it had already received any other de minimis aid during that fiscal year and the two previous fiscal years.
When Azienda Agricola initiated legal proceedings to receive the money, the ATC asserted, inter alia, that Azienda Agricola was not entitled to compensation, on account of its failure to declare whether it had already received other de minimis aid during that fiscal year and the two previous fiscal years.
The Italian court hearing the case at first instance rejected the argument of the ATC on the ground that obtaining a declaration from the Azienda Agricola as to whether it had already received other de minimis aid during the relevant three fiscal-year period was not necessary because compliance with the de minimis aid cumulation rules, provided for by Regulation 1408/2013, could also have been determined on the basis of information from a public register of state aid.
When the case eventually reached a court of appeals, that court decided to stay proceedings and ask the CJEU for clarification on the obligations of recipients and grantors of de minimis aid.
Need for checks before de minimis can be granted
First, the referring court sought guidance on the interpretation of Article 3 and Article 6(1) & (2) of Regulation 1408/2013.
The CJEU, first, noted that “(17) in relation to monitoring the de minimis character of aid, Article 6(2) of that regulation refers to circumstances in which a Member State has set up a central register of de minimis aid containing complete information on all de minimis aid granted by any authority within that Member State. As is apparent from the order for reference, the central register of aid was not set up by the Italian Republic until 12 August 2017, that is to say, on a date subsequent to the application for aid at issue in the main proceedings with the result that the question of the application and interpretation of that provision does not arise in the present case.”
Then the CJEU explained that it was “(19) necessary, in order to give a useful answer, to provide an interpretation of Article 6(3) of Regulation No 1408/2013 according to which a Member State is to grant new de minimis aid in accordance with that regulation only after having checked that this will not raise the total amount of de minimis aid granted to the undertaking concerned to a level above the ceiling laid down in Article 3(2) of that regulation and the national cap referred to in Article 3(3) of that regulation and that all the conditions laid down therein are complied with.”
“(20) Therefore, it must be held that …, the referring court asks, in essence, whether Article 3 and Article 6(1) and (3) of Regulation No 1408/2013 must be interpreted as precluding national legislation that provides for the grant and payment of de minimis aid for agriculture, during the first three years following the creation of a central register of aid at national level, without requiring a specific declaration from the undertaking applying for the aid as to the amount and nature of other State aid that it received during the current fiscal year and the two previous fiscal years.”
The CJEU, then, proceeded to point out “(21) that Articles 3 and 6 of Regulation No 1408/2013 must be placed back in the overall context of that regulation, the purpose of which is to allow derogations, for State aid of a limited amount, from the rule that all aid must, prior to implementation, be notified to the Commission”.
“(22) Furthermore, it must be observed that, given that Regulation No 1408/2013 contains a derogation from the general rule providing for the notification of any new State aid, Articles 3 and 6 of that regulation must be interpreted strictly”.
“(23) That interpretation must take into account not only the wording of those provisions, but also the context in which they are set and the objectives pursued by the act of which they form part”.
“(24) It is clear from the wording of Article 3(1) of Regulation No 1408/2013 that that regulation applies only if all the conditions set out therein are satisfied. As regards Article 6(3) of that regulation, it follows from the wording of that provision that a Member State is to ensure that the ceiling laid down in Article 3(2) of that regulation is not exceeded before granting de minimis aid.”
“(25) It follows that, while the central register referred to in Article 6(2) of Regulation No 1408/2013 has not been operational in the Member State concerned for a period of three fiscal years, the obtaining of the declaration referred to in Article 6(1) of that regulation constitutes, in the context of that regulation, a necessary condition for the grant of new de minimis aid. Such a declaration is essential in that it allows the Member State concerned to check whether the aid applied for falls within the scope of that regulation and, therefore, to determine if the aid is, or is not, exempt from the notification requirement.”
“(26) Such an interpretation is also confirmed in the light of the context in which those provisions are set and the objective of Regulation No 1408/2013.”
“(27) First, in relation to that context, it is apparent from recitals 20 and 21 of Regulation No 1408/2013 that obtaining the declaration referred to in Article 6(1) of that regulation forms part of the monitoring obligation that is to be fulfilled before the aid in question is granted.”
“(28) Second, the objective of Regulation No 1408/2013 is intended to reduce the administrative burden on undertakings, the Commission and the Member States based on the principle that aid in an amount not exceeding the de minimis ceiling does not have any effect on the trade between Member States and is not such as to distort competition”
“(29) In that regard, as is apparent from recital 1 of Regulation No 1408/2013, the reason for the exemption from the State aid notification requirement is the existence of the limited amount of aid that may be granted to a single undertaking over a given period of time pursuant to that regulation. However, in order to benefit from such an exemption, there must first be confirmation that the de minimis ceiling has not been not exceeded over that period of time.”
“(30) In the light of all the foregoing considerations, the answer to the first question is that Article 3 and Article 6(1) and (3) of Regulation No 1408/2013 must be interpreted as precluding national legislation that provides for the grant and payment of agricultural de minimis aid before a central register of aid has been fully and comprehensively established at national level, without requiring a specific declaration from the undertaking applying for the aid as to the amount and nature of other State aid that it received during the current fiscal year and the previous two fiscal years.”
When the self-declaration must be submitted by aid applicants
Next, the CJEU addressed the second question of the referring court on whether undertakings had to provide a declaration on the amount of de minimis aid they received in a three fiscal-year period before or after receiving new de minimis aid.
The CJEU recalled that following “(32) from the examination of the first question, the declaration referred to in Article 6(1) of Regulation No 1408/2013 constitutes, as long as that provision has not ceased to apply in accordance with Article 6(2) of that regulation, a condition for the grant of new agricultural de minimis aid, within the meaning of Article 3 and Article 6(3) of that regulation.”
“(33) As regards the submission of aid applications and the declaration relating to any aid received previously, it must be pointed out that Regulation No 1408/2013 does not contain any procedural requirement regarding the manner in which, and the date on which, that declaration must be requested or provided. The only requirements in Article 6(1) of that regulation refer to the fact that that declaration must be obtained ‘before granting the aid’ and that it must indicate the aid received by the undertaking concerned during the previous two fiscal years and the current fiscal year.”
“(34) However, it must be observed that such requirements concern the applicability of the regime provided for in that regulation, but do not constitute eligibility conditions for the submission of an aid application. Therefore, such a declaration may be produced at a later stage in the administrative procedure relating to the aid application, provided that that declaration, at the request of the Member State concerned, was obtained before the grant of the aid.”
The distinction made by the CJEU in the preceding paragraph is rather academic. In the end, an aid applicant must submit that declaration before it can receive new de minimis aid.
Although the CJEU clarified that “(35) the submission of the declaration is not an eligibility condition for an aid application [it stressed that], however, in the absence of a central register of de minimis aid covering a period of three fiscal years, that declaration constitutes a condition for the grant and, therefore, the payment of aid, which implies that such a declaration is necessary before the grant of the aid and not afterwards.”
“(36) In addition, even though the aid application procedure is in principle governed by national law, it should be borne in mind that it is apparent from Article 6(1) of Regulation No 1408/2013, read in the light of recital 20 of that regulation, that it is for the Member State concerned to obtain the self-certified declaration where that self-certified declaration is necessary in order to be able to check whether the conditions for the application of that regulation are complied with. In that regard, it should again be specified that, where aid is not granted, in particular on account of a lack of a request for such a declaration, the competent authority can retroactively demand that declaration in order to assess whether the aid may still be granted.”
On the basis of the analysis above, the CJEU concluded that “(37) the answer to the second question is that Article 3 and Article 6(1) and (3) of Regulation No 1408/2013 must be interpreted as meaning that the production of a declaration relating to any aid received in the three-year period preceding the full and comprehensive creation of a central register of aid at national level is not an eligibility condition for the submission of the aid application, but that such a declaration constitutes a condition for the grant of the aid with the result that it must be obtained by the Member State before the grant of such aid.”
[1] The full text of the judgment can be accessed at:
