Considerations for state aid recipients in Belgium

Considerations for aid recipients

Is there a legal right for businesses to obtain state aid or is the granting of aid completely within the authorities’ discretion?

In Belgium, there is no general principle pursuant to which businesses have a legal right to obtain state aid. Nevertheless, the authorities’ discretion can be limited by the conditions that must be met for a company to be entitled to a specific aid measure. If these conditions are detailed and objective, then companies meeting them will have in principle a legal right to obtain the aid in question, within the limits of the budget available for that measure.

What are the main criteria the national authorities will consider before making an award?

Depending on the type of the aid measure in question, the Belgian authorities consider a wide-ranging set of criteria before making an award, including culture and heritage conservation, support for SMEs, regional development, job creation and R&D&I.

What are the main strategic considerations and best practices for successful applications for aid?

As explained above, aid for R&D&I and culture are the two most common types of aid in Belgium, and aid in the railway sector is also very significant.

How may unsuccessful applicants challenge national authorities’ refusal to grant aid?

The procedure for granting state aid is subject to the control of the judge who examines the legality of the refusal decision to grant aid. When these decisions are governed by administrative law, an action for annulment can be lodged before the administrative judge (Council of State). When these decisions are governed by civil law (contract, for instance), an action can be lodged before the competent commercial or civil judge.

To what extent is the aid recipient involved in the EU investigation and notification process?

All will depend on the nature of the aid measures and of the lead ministry in charge.

In the event of aid schemes, the aid beneficiaries are generally not involved, except through preliminary public consultations (for instance, on draft decrees for regional aid for SMEs); however, the procedure with the European Commission is strictly bilateral, the regions or communities being in direct contact with the Directorate-General for Competition of the European Commission through Belgium’s Permanent Representation, which includes delegates from various regional and community governments.

In the event of individual aid, the beneficiary is generally closely involved, including in the drafting of the aid measures or the responses to questions by the European Commission about specific measures being investigated. This is particularly the case in restructuring or rescue aid cases and within the framework of services of general economic interest measures.

Each ministry also has its own tradition to involve more or less the beneficiaries depending on the circumstances.

In case of close involvement, the aid beneficiary usually has access to the entire file, and can attend meetings between the national authorities and the Commission (the latter being decided on a case-by-case basis depending on the political situation).