Pöördumine

Suur-Ameerika 1 / 10122 Tallinn / ESTONIA /+372 611 3558 / [email protected] / www.fin.ee/

Reg no 70000272

Ms Andrea Bomhoff

European Commission

Directorate-General for Competition

[email protected]

/

Our ref. 02.06.2026 No 12.1-2/2385-1

The concept of the same eligible costs

for the purpose of cumulation of

State aid and de minimis aid

Dear Ms Andrea Bomhoff

The Ministry of Finance of Estonia as a coordinating body of State aid topics in Estonia is

kindly requesting clarification regarding the interpretation of “the same eligible costs” in Article

14 of Commission Regulation (EU) No 651/2014 (GBER). In particular, we are seeking for

clarification whether design (engineering) costs and construction costs must be considered as

the same eligible costs for the purposes of cumulation under Article 8(5) of GBER and de

minimis aid.

The Commission has provided interpretations on e-State Aid Wiki suggesting that design costs

may be eligible under Article 14 of GBER where such costs are capitalised together with the

investment (e.g. Commission answer to Estonia on 28 Febr, 2024). The Commission has also

explained in Wiki that if two aid measures have identifiable costs and these eligible costs are

the same by reference to a specific GBER provision (e.g. Article 14) then cumulation of aid is

possible to the highest relevant aid intensity under the relevant GBER provision (e.g.

Commission answer to Poland on 8 July, 2024).

However, in the view of one of our aid grantors, design and construction costs cannot be

considered the same eligible costs for the purposes of cumulation under Article 8(5) of GBER

and de minimis aid, where such an interpretation would result in recovery of State aid on the

grounds of a breach of the cumulation rules for the following reasons:

1. Wording of the GBER

Article 14 of GBER refers to eligible costs as “investment costs in tangible and intangible

assets”.

According to Article 2(29) of GBER “tangible assets” are exhaustively defined as physical

assets (land, buildings, plant, machinery and equipment).

Design activities, by their nature, do not constitute physical assets and are therefore not clearly

encompassed by this definition.

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Also, the GBER does not expressly provide that capitalisation determines whether a cost

constitutes an eligible cost under Article 14 of GBER or whether it is “the same eligible cost”

for cumulation purposes.

Therefore, interpreting design costs as “the same eligible costs” as construction costs solely

because they are capitalised together with construction costs appears not to be grounded in the

wording of the regulation.

2. Legal certainty

EU regulations are binding in their entirety and must be applied uniformly across all Member

States without the need for national implementation measures. According to the case-law,

provisions of EU law must be clear, precise and unconditional, so that their legal effects can be

determined directly from their wording enabling individuals to understand their rights and

obligations and to plan their conduct accordingly.

It is not clear from the wording of Article 14 of GBER whether design and engineering costs,

where separately identifiable and not themselves assets within Article 2(29) or 2(30) of GBER,

should be treated as „the same eligible costs“ merely because they are capitalised together with

the resulting construction asset.

3. Strict interpretation of block exemptions and limited discretion of Member States

As confirmed by the Court of Justice (including Case C-349/17 Eesti Pagar), provisions

granting exemptions from the notification obligation must be interpreted narrowly, and their

conditions must be clear and easily applicable by Member States.

Under Article 108 TFEU, only the European Commission has exclusive competence to assess

compatibility of State aid. Member States are required to apply the GBER strictly and do not

have wide discretion to rely on expanded or informal interpretations that are not clearly

reflected in the legal text. Furthermore, EU law must ensure uniform application throughout the

Union, meaning that Member States do not have discretion to reinterpret or expand the scope

of directly applicable provisions.

As a result, provisions of directly applicable EU law must be interpreted strictly in accordance

with their wording, and interpretations that extend beyond the text of the provision risk

undermining both legal certainty and the uniform application of EU law.

To illustrate the problem, we give the following theoretical example:

According to the aid scheme regional aid for initial investment (Article 14 of GBER) to large

company can be granted up to 25% of eligible costs1. The engineering/design costs can be

supported under de minimis aid rules up to 80% of these costs (but not more than 300 000 euros

per undertaking). The engineering/design costs cannot be supported under regional aid rules.

In light of the above, we would therefore be grateful for the Commission’s clarification on the

following:

1. Whether the Commission considers that design/engineering costs and

construction costs should always be considered as „the same eligible costs“ for

the purposes of cumulation under Article 8(5) of GBER and de minimis aid?

2. If the answer to question 1 is „No“, then can the design/engineering costs - if

separately invoiced and procured separately from construction and excluded

from Article 14 of GBER eligible cost base, but according to the accounting

1 According to the regional aid map of Estonia 25% is the maximum aid intensity for regional aid for large companies.

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rules still capitalised with the investment - be supported under de minimis aid

rules without being treated as the same eligible costs as the construction costs

supported under Article 14 of GBER. In this case could the design/engineering

costs and construction costs be cumulated?

We have also sent the shorter version of the question via Wiki but would very much appreciate

if you could answer our questions by letter.

Yours sincerely,

(signed digitally)

Tarmo Porgand

Head of State Stakeholding and Public Procurement Department

Maris Kalda

[email protected]

+372 5885 1434