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Office of Competition and Consumer Protection

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State aid system in Poland

The competences of the President of the Office of Competition and Consumer Protection in the field of State aid are regulated in the article 1 of the Act of 30 April 2004 on the procedural issues concerning State aid. According to it, the President of the Office:

  • carries out proceedings regarding preparations for notification of draft aid schemes, drafts of individual aid and individual aid for restructuring;
  • co-operates with entities preparing aid schemes, aid granting authorities, entities applying for aid and aid beneficiaries with respect to State aid;
  • represents Poland in proceedings before the Commission and the Courts of the European Union;
  • carries out proceedings regarding State aid recovering;
  • monitors the State aid granted to undertakings.

 

Issuing opinions

Before its formal notification to the European Commission, each aid scheme or project of individual aid requires the opinion of the President of the Office of Competition and Consumer Protection[1]. In the opinion, the Authority evaluates whether the aid granted to an undertaking meets all the conditions of State aid defined in Article 107 par. 1 of the Treaty on the Functioning of the European Union (TFEU)[2]:

  • it is granted by the State or through State resources;
  • it confers an advantage to the recipients;
  • it is selective in nature (it favours a certain undertaking or undertakings or production of certain goods);
  • it distorts or threatens to distort competition and affects trade between EU Member States.

If all of the aforementioned conditions are not met, the planned measure will not be classified as the State aid.

Moreover, the President of the Office assesses the compatibility of the granted aid with the internal market - in case of incompatibility - proposes apropriate measures and states wheter there is a notification obligation. The opinion is not binding, however has a significant cognitive value. The opinion indicates what kind of consequences might be connected with the aid to be granted and, simultaneously, prevents notifying the projects which are not compatible with the internal market and thus will not be authorized by the European Commission.

As it was explained above, State aid may be granted on the basis of aid schemes or individual aid projects. The aid schemes are normative acts (statutory acts, regulations or acts of local law) which set forth the terms and conditions, as well as the forms and legal bases for granting aid to undertakings defined in a general and abstractive manner. More specifically, the schemes specify the objective of the aid (e.g. trainings, research and development, environment protection, increase of employment, restructuring) and its forms (State grants, tax advantages, State guarantees, etc.). Aid schemes also identify the aid granting authorities, eligible costs, maximum intensity of the aid, the scheme’s duration and its beneficiaries. The individual aid is granted on the basis of contract or decision which is addressed directly to the concrete undertaking (ad hoc aid) or is subject to the individual notification requirement on the basis of an aid scheme.

 

Notification of projects to the European Commission

Pursuant to the provisions of the TFEU (Article 108(3)), each Member State is obligated to inform the Commission of any plan to grant the aid (excluding de minimis aid and aid granted within block exemptions) and refrain from granting it until Commission’s approval (standstill clause). The European Commission is the sole competent authority to determine compliance of granted aid with the law of the European Union.

In Poland, the President of the Office notifies the Commission the State aid schemes or individual aid projects. In course of preliminary examination conducted by the Commission, the President, with help of other institutions and parties including State aid beneficiaries, prepares responses for the Commission and provides it with the required documents.

The President of the Office provides the concerned parties with information about the decisions of the European Commission, both as regards the compatibility of the proposed State aid with the internal market and the recovery of incompatible or misused aid.

 

Appealing against the European Commission decisions

The President of the Office appeals, on behalf of Polish authorities, against the European Commission decisions to the Court of Justice of the European Union and the Court. Next, the President represents Poland in the proceedings before these institutions.

Monitoring of State aid

The President of the Office monitores State aid, which includes collecting, processing and transfering of information regarding granted State aid, in particular its types, forms and amounts. The President of the Office is also responsible for preparation and submission to the European Commission of reports on State aid granted to undertakings in a given year and the reports for the Polish Parliament (Sejm) containing results of State aid monitoring in a given year (in agreement with the Minister of Finance). These documents are being prepared on the basis of information conveyed by the authorities granting aid. The European Commission collects data from all Member States and thus prepares a final report on the overall State aid situation in the whole European Union (State Aid Scoreboard).

Monitoring of de minimis aid

The President of the Office monitors de minimis aid. Draft aid schemes that provide for de minimis aid are subject to submission to the President of the Office, who may present any reservations regarding transparency of the principles of granting aid within 14 days.

Register of local law

The President of the Office registers the local law that provides for granting State aid in accordance with conditions set forth in regulations which were subject to notification to the European Commission or which are based on block exemptions and were subject to the opinion of the President of the Office.

Audit of an aid beneficiary

The President of the Office may be present during an audit of the aid beneficiary conducted by the European Commission. In the event of obstructing an audit by the aid beneficiary, the President of the Office may use assistance of duly authorized government administration officials, or officers of the police unit appropriate for the location of the aid beneficiary.

Financial penalties

For failing to perform or inappropriate performance of duties regarding submission of information necessary to prepare replies to the European Commission’s questions or information concerning State aid already received as well as obstructing an audit by an aid beneficiary, the President of the Office may, by way of decision, impose on the beneficiary a financial penalty in the maximum amount of the equivalent of EUR 10,000.

 


[1] Excluding individual de minimis aid and individual aid projects granted within block exemptions.

[2] The Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon on 13 December 2007, entered into force on 1 December 2009 (O.J. UE C 306, 17.12.2007 r.). The Treaty establishing the European Community was replaced by the Treaty on the Functioning of the European Union (TFEU). In accordance with the article 5 of TFEU, the articles 87 and 88 were renumbered to articles 107 and 108.

 

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