Considerations for state aid recipients in Spain

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?

No absolute legal right to obtain state aid exists in principle. Spanish authorities are competent to grant aid at their discretion within the boundaries and following the parameters of the applicable laws. Any granting must be done in compliance with the pre-established criteria and with the general requirements established in the General Subsidies Law.

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

The ordinary procedure for the granting of aid takes place in a regime of competitive public tendering. This is the proceeding by which the granting authority compares the applications submitted to establish a priority among them according to the evaluation criteria previously set.

Before awarding aid, the granting authorities basically assess criteria linked to any market failures. Job creation, supporting (or encouraging) R&D efforts, worker training and environmental protection are the criteria usually considered by the Spanish granting authorities.

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

First, applicants for subsidies have to assess whether they meet the criteria and conditions established for the granting of the subsidy under article 13 of the General Subsidies Law.

Article 13 establishes the requirements to be fulfilled to gain beneficiary status. First, persons or entities that are in a situation that justifies the granting of the subsidy will be able to obtain beneficiary status. Notwithstanding the above, article 13 establishes a list of circumstances that, if met, prevent persons or entities from obtaining beneficiary status.

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

If the administrative act as a result of which the subsidy is granted amounts to final administrative action, unsuccessful applicants may challenge the national authorities’ refusal to grant aid before the contentious-administrative courts. Generally, prior to court litigation, an administrative appeal can be brought before the hierarchical superior administrative body of the granting authority.

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

There is no specific regulation on this regard concerning state aid. According to articles 53a and 53e of Law No. 39/2015 on the Common Administrative Procedure, those with a legitimate interest in any administrative proceeding have the right to know at any moment the status of proceedings in which they have the condition of interested parties; the competent body for the instruction and the resolution; and the administrative acts issued. They also have the right to access the file and obtain a copy of the documents issued, and to submit comments and provide documents and evidence during proceedings.