EUROPEAN COMMISSION. State aid / Germany (Bavaria) SA (2017/N) Bavarian mountain farmers scheme (BBP) 2017

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1 EUROPEAN COMMISSION Brussels, C(2017) 6381 final Subject: State aid / Germany (Bavaria) SA (2017/N) Bavarian mountain farmers scheme (BBP) 2017 Sir, The European Commission ("the Commission") wishes to inform Germany that, having examined the information supplied by your authorities on the State aid scheme referred to above, it has decided not to raise any objections to the relevant scheme as it is compatible with the internal market pursuant to Article 107(3)(c) of the Treaty on the Functioning of the European Union ("TFEU"). 1 The Commission has based its decision on the following considerations: 1. PROCEDURE (1) By letter of 25 January 2017, registered by the Commission on the same day, Germany notified, according to Article 108(3) TFEU, the above mentioned aid scheme. The Commission sent requests for additional information to the German authorities on 15 March 2017 and on 17 May 2017, which the German authorities answered by letters of 21 April 2017, registered by the Commission on the same day and (after requesting a delay extension until 17 August 2017 which was granted by the Commission) of 25 July 2017, registered by the Commission on 26 July DESCRIPTION 2.1. Background (2) Germany (Bavaria) first notified this scheme in 2006 (approved by Commission decision of 9 November 2006 (cf. N 617/2006). It was amended in 2011 (cf. SA.3151/ (N 383/2010), as approved by Commission decision of 14 June 2011) and later prolonged by Commission decision of 16 December 2013 (cf. SA (2013/N) until 31 December The present decision does not cover funding which is granted as de-minimis aid, cf. footnotes 4 and 5. Seiner Exzellenz Herrn Sigmar GABRIEL Bundesminister des Auswärtigen Werderscher Markt 1 D Berlin Commission européenne, B-1049 Bruxelles Belgique; Europese Commissie, B-1049 Brussel België

2 (3) The notified measure is not included in the Bavarian Rural Development Programme , and will be purely financed by the budget of Bavaria, due to limited availability of EAFRD funds. The present notification complements the above-mentioned rural development programme Title (4) Bavarian mountain farmers scheme (BBP) Objective and scope (5) The notified scheme aims at improving the overall performance and sustainability of agricultural undertakings active in alpine and pasture farming, in particular through an improvement and re-deployment of production. The notified scheme thus contributes to the objective of preserving and developing the management of alpine pastures in alpine mountain regions in its current form. It furthermore aims at the preservation of biodiversity of species and habitats and should contribute to the relief of mountain forests from forest pastures Legal basis (6) Guidelines on the Bavarian mountain farmers scheme 2017 (Richtlinie Bayerisches Bergbauernprogramm 2017 (BBP)). (7) A draft of the legal basis was submitted to the Commission as part of the notification Duration (8) From the date of approval by the Commission until 31 December Budget (9) The overall budget is EUR 4 million with an annual budget of EUR 2 million. (10) The aid will be granted by the Office for Food, Agriculture and Forestry in Holzkirchen (Amt für Ernährung, Landwirtschaft und Forsten Holzkirchen) Beneficiaries (11) Beneficiaries of the envisaged measure will be agricultural undertakings falling under the definition of an SME, pursuant to Annex I to Regulation (EC) No 702/2014, and with an establishment in Bavaria. (12) Eligible for aid are: - undertakings that farm at least 3 ha of utilised agricultural area themselves or have received at least during the last five calendar years prior to the aid application support under pillar 1 or 2 of the CAP; 2 As adopted by the Commission decision C(2015)00852 on 13 February 2015 and lastly amended by C(2017)1106 on 10 February

3 - owners of alpine pastures and - agricultural cooperations (such as grazing cooperatives) applying in the name and for their members. (13) Excluded from aid are beneficiaries meeting the definition of 'undertaking in difficulty' laid down in the Community Guidelines on State aid for rescuing and restructuring undertakings in difficulty 3 ; (14) Excluded are further undertakings subject to an outstanding recovery order following a previous Commission Decision declaring an aid illegal and incompatible with the internal market. (15) The German authorities estimate the number of beneficiaries between 101 and Aid instrument (16) Direct grant. (17) The German authorities explained that the eligible measures under the BBP concern investments in alpine and pasture farming in mountain and core areas which are little profitable. Without an incentive from public financing there is a risk that these types of farming would be abandoned, which would have negative implications on the environment. Direct grants are in this situation considered the only effective forms of aid. While other forms of aid could facilitate the financing of the investment, only direct grants have a direct impact on the profitability of the investment Description of the aid scheme (18) The BBP comprises the following sub-measures: Restoration and new construction of alpine buildings for agricultural use on recognised alps in alpine mountain areas, which serve at the restoration and improvement of operability or of working conditions respectively. Eligible for aid are: - Stables, feed and farmyard, manure site as well as facilities for energy supply of the alpine building; - Technical facilities to ensure the operability of alpine buildings such as stabling, milking facilities or milk cooling; 5 3 Guidelines on State aid for rescuing and restructuring non-financial undertakings in difficulty (OJ C 249, , p. 1). This definition corresponds to the one in point 35(15) of the European Union Guidelines for State aid in the agricultural and forestry sectors and in rural areas 2014 to 2020 (OJ C 204 of , p. 1.), amended by the Notice published in OJ C 390, , p. 4 and by the Corrigendum published in OJ C 265, , p The BBP comprises one more sub-measure, measure 2.1 "Restauration and Conservation (via nonproductive investments) on recognised alpine pastures. The German authorities have specified that this sub-measure will be funded under Regulation (EU) No 1408/2013 of 18 December 2013 on deminimis aid in the agriculture sector. 3

4 - Equipment of the living area (exclusively for the alp personnel) with heating and sanitary facilities as well as for the alpine use and for a subordinate guest service (max 10 seats) 6 during the alp season (Alm- /Alpsaison) required sewage treatment plant. 2.3 Creation and renewal of facilities for the proper pasture management. Eligible for aid are: - Livestock huts for the temporary shelter of animals; - Installations for water supply such as wells or drinking troughs for animals; - Pasture equipment such as pasture fences, cattle grids, electrical or solar appliances for pasture fences, catching, weighing and feeding equipment, observation as well as claw care stands. 2.4 Construction of connecting roads and driving ways in the areas of recognised alps and of replacement areas in connection with forest pasture adjustment 7 as well as the fundamental renewal of such areas (development, consolidation, building of embankments, regulation of surface water). 2.5 Purchase of special machinery, such as new tractors or other vehicles required due to the special farming conditions (narrow paths) for the maintenance of agricultural activities on alpine pastures. (19) Some of the sub-measures listed above under can also be carried out as follow-up measures in the context of a forest pasture adjustment (separation of forest and pasture, Waldweidebereinigung). The German authorities have in this context explained that historically acquired pasturing rights are exercised on approximately 20% of the protective forests in Bavaria. Forest renewal (growth of young plants) is substantially impaired through damage caused by bites and trampling from grazing animals. The long-term functional separation of forest and pasture is only possible if grazing animals can be kept away from forests by erecting fencing. In order to be eligible for measures in the context of a forest pasture adjustment, the cleared up forest area has to be situated in an alpine mountain region and a technical plan must exist which lists the type and scope of the adjustment and the necessary follow-up measures, including their timing. 8 5 Additionally, under sub-measure 2.2 technical equipment of a mountain pasture /alp (Sennalm/-alpe) for the production of alpine cheese is eligible as well. This will be financed under Regulation (EU) No 1407/2013 of 18 December 2013 on de minimis aid. 6 The German authorities specified that this only concerns resting places which can be temporarily provided for hikers or in case of sudden weather changes in the mountains. In this context no investments will be funded for the housing or catering of guests. 7 Cf. recital (19). 8 The forest pasture adjustment is legally established by a notarial contract or private agreement between the holder of the grazing rights and the Freistaat Bayern (in case of public forest) or recognised by the Pasturing Rights Commission (Weiderechtskommission) and the Office for Food, Agriculture and Forestry (Amt für Ernährung, Landwirtschaft und Forsten) in case of private or corporate forests. 4

5 Due to the loss of watering sites and shelter in the forest, the animals must be supplied with water and shelters elsewhere. Furthermore, appropriate driving ways and connecting roads must be built. Investments in the context of a followup measure to a forest pasture adjustment are therefore intended solely to provide a replacement for the infrastructure that the farmer had at his/her disposal in the (now abandoned) forest grazing grounds. According to the German authorities they are not intended to improve the performance of the agricultural holding but have as their sole purpose to re-establish a comparable status quo for the farmer as it was before the forest pasture adjustment. Such investments are therefore to be regarded as non-productive. (20) Eligible costs will comprise the construction, acquisition, including leasing, or improvement of immoveable property (with land purchased only being eligible to an extent not exceeding 10% of the total eligible costs of the operation concerned) as well as the purchase or lease purchase of machinery and equipment up to the market value of the assets. (21) The maximum aid intensity is 50% of eligible costs. Additionally, maximum aid amounts are applied: EUR for sub-measure 2.2 (and EUR respectively if this measure is carried out on Sennalmen/-alpen), EUR for sub-measures 2.3 (the maximum amount applies per sub-measure to of the BBP) and 2.4 and EUR for sub-measure (22) In deviation from the general aid intensity and general maximum aid amounts, as described in recital (21)) measures carried out in the context of a forest pasture adjustment (cf. recital (19)) can be funded at the following rates, depending on the value of the abandoned grazing ground, expressed in 'normal grazing cow equivalents' (Normalkuhgräser (NKG) 10 ): Forest pasture adjustment in NKG Maximum aid intensity for sub-measures under 2.2 Maximum aid intensity for sub-measures under 2.3 and % 70% % 80% % 90% With a maximum aid amount of EUR With a maximum aid amount of EUR (23) Aid applicants can only benefit once from the increased aid rates described in recital (22), even if the forest pasture adjustment is carried out gradually. After the completed separation of forest and pasture investments may only be carried out at regular aid rates (cf. recital (20)). Aid applications for follow-up measures in the context of a forest pasture adjustment have to be submitted within five years of signing of the contract or recognition of the procedure (cf. footnote 8). 9 Cf. recital (18). 10 Defined as the amount of fodder one cow needs during 100 grazing days. 5

6 (24) The German authorities confirmed that the maximum aid intensity and the aid amount will be calculated by the granting authority at the moment of granting the aid. They furthermore confirmed that the eligible costs will be supported by documentary evidence which is clear, specific and contemporary. Value Added Tax (Umsatzsteuer) is not eligible and possible rebates and discounts received have to be deducted from eligible costs. (25) The German authorities also confirmed that the aid will not be cumulated with other State aids or with de minimis aid. They furthermore confirmed that aid under the present scheme will not be cumulated with payments referred to in Articles 81(2) and 82 of Regulation (EU) No 1305/2013 in respect of the same eligible costs if such cumulation would result in an aid intensity or aid amount exceeding those laid down in the European Union Guidelines for State aid in the agricultural and forestry sectors and in rural areas 2014 to (hereinafter "the Guidelines"). (26) According to the BBP beneficiaries may only start the measures after approval of their aid application. In cases of hardship (such as fire or natural hazard) the granting authority can exceptionally decide that measures started after application but before authorisation will be eligible as well. (27) The aid applications have to be filed with the competent Office for Food, Agriculture and Foresty (Amt für Ernährung, Landwirtschaft und Forsten). The aid application has to contain at least the following information: name, address and company number; SME declaration; declaration on undertakings in difficulty; declaration on outstanding recovery orders; description of the project or activity including information on its start and end dates; location of the project or activity; breakdown of eligible costs and amount of aid needed. (28) The German authorities have confirmed that the investments at which the aid is aimed, will not increase production beyond restrictions or exceed limitations on Union support at the level of individual undertakings, holdings or processing plants set by a common organisation of the market, including direct support schemes, financed by the European Agricultural Guarantee Fund (EAGF). (29) They have furthermore given assurance that the supported investments are not linked to the production of biofuels or the production of energy from renewable sources on holdings. (30) The German authorities confirmed that the transparency requirements pursuant to points (128) and (131) of the Guidelines will be complied with. The publication of the aid scheme and the individual aid grants above EUR will take place on the following web page 12 : (31) The German authorities furthermore indicated that the notified scheme will have no environmental impact while the forest pasture adjustment 11 OJ C 204 of , p. 1. Amended by the Notice published in OJ C 390, , p. 4 and by the Corrigendum published in OJ C 265, , p Pursuant to a letter of the German authorities to the Commission of 28 June

7 (Waldweidebereinigung) as such will lead to the relief of mountain forests from forest pastures (cf. recital (5)). 3. ASSESSMENT 3.1. Existence of aid - Application of Article 107(1) TFEU (32) According to Article 107(1) of the Treaty, "[s]ave as otherwise provided in the Treaties, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the internal market". (33) Qualifying a measure as aid within the meaning of this provision therefore requires the following cumulative conditions to be met: (i) the measure must be imputable to the State and financed through State resources; (ii) it must confer an advantage on its recipient; (iii) that advantage must be selective; and (iv) the measure must distort or threaten to distort competition and affect trade between Member States. (34) The notified scheme confers an advantage on its recipients. This advantage is granted through State resources imputable to the State (cf. recital (3) in connection with recital (10)) and it favours undertakings active in the agricultural sector (cf. recital (11)) by strengthening their competitive position on the market. According to the case law of the Court of Justice, the mere fact that the competitive position of an undertaking is strengthened compared to other competing undertakings, by giving it an economic benefit which it would not otherwise have received in the normal course of its business, points to a possible distortion of competition. 13 (35) Pursuant to the case law of the Court of Justice, aid to an undertaking appears to affect trade between Member States where that undertaking operates in a market open to intra-eu trade. 14 The beneficiaries of aid operate on the market of agricultural products, where intra-eu trade takes place. The EU intra trade of agricultural products in 2015 amounted to some EUR billion for exports and to EUR 314 billion for imports. 15 The sector concerned is open to competition at EU level and therefore sensitive to any measure in favour of the production in one or more Member States. Therefore, the present scheme is liable to distort competition and to affect trade between Member States. (36) In light of the above, the conditions of Article 107(1) TFEU are fulfilled. It can therefore be concluded that the proposed scheme constitutes State aid within the meaning of that Article. The aid may only be considered compatible with the internal market if it can benefit from one of the derogations provided for in the TFEU. 13 Judgment of the Court of 17 September 1980 in Case 730/79 Philip Morris Holland BV v Commission of the European Communities, ECLI:EU:C:1980: See in particular the judgment of the Court of 13 July 1988 in Case 102/87 French Republic v Commission of the European Communities, ECLI:EU:C:1988: Source: Own calculation of DG AGRI based on EUROSTAT data. 7

8 3.2. Lawfulness of the aid Application of Article 108(3) TFEU (37) The aid scheme was notified to the Commission on 25 January Aid under this scheme will only be granted after the Commission decision authorising the aid scheme is adopted (cf. recital (8)). Therefore, Germany has complied with its obligation under Article 108(3) TFEU Compatibility of the aid Application of Article 107(3)(c) TFEU (38) Under Article 107(3)(c) TFEU, an aid may be considered compatible with the internal market, if it is found to facilitate the development of certain economic activities or of certain economic areas, where such aid does not adversely affect trading conditions to an extent contrary to the common interest. (39) For this derogation to be applicable, the aid must comply with the relevant Union State aid rules Application of the Guidelines (40) As regards the notified aid scheme, Part I and Part II, Chapter "Aid for investment in tangible assets and intangible assets on agricultural holdings linked to primary agricultural production" of the Guidelines are applicable Specific assessment according to the category of aid Chapter "Aid for investment in tangible assets and intangible assets on agricultural holdings linked to primary agricultural production" (41) According to point (134) of the Guidelines investment aid falling under Section of Part II of the Guidelines shall comply with the following condition: "where a common market organisation, including direct support schemes, financed by the European Agricultural Guarantee Fund (EAGF) places restrictions on the production or limitations on Union support at the level of individual undertakings, holdings or processing plants, no investment which would increase production beyond those restrictions or limitations may receive State aid support". As specified in recital (28) above, this condition is fulfilled. (42) In conformity with point (136) of the Guidelines, the notified aid scheme concerns investments in tangible assets on agricultural holdings linked to the primary agricultural production (cf. recitals (11) and (18)). (43) Points (137) to (142) of the Guidelines are not applicable to the present case as the investments in questions are not linked to the production of biofuels or the production of energy from renewable sources on holdings (cf. recital (29)). (44) The investments supported by the notified aid scheme aim at an improvement of the overall performance and sustainability of the agricultural holding (cf. recital (5)). Investments carried out in the context of a forest pasture adjustment (cf. recital (19)) are solely intended to re-establish the status quo of the farmer as it was before the forest pasture adjustment. They will not lead to an increase in value or profitability and are therefore non-productive. The forest pasture 8

9 adjustment itself aims at enhancing the biodiversity conservation and the public amenity value of mountain forest. (45) The conditions of points (143) (a) and (d) of the Guidelines are therefore met. (46) The eligible costs of the notified aid scheme described in recital (20) respect the categories of eligible costs listed in point (144) of the Guidelines. Therefore the Commission considers the aforementioned eligible costs to be in line with point (144) (a) and (b) of the Guidelines. (47) No aid will be granted under the notified scheme in connection with the costs referred to in point (145) of the Guidelines. (48) Points (146) and (147) as well as points (149) to (151) of the Guidelines are not relevant to the present case as it neither concerns the purchase of breeding animals nor irrigation. (49) The investments under the notified scheme will be carried out on alpine pastures. Germany designated in its National Framework Programme , approved by the Commission in December 2014 and amended in May 2015, mountain areas (Berggebiete) as areas facing natural and other specific constraints, pursuant to Article 32 of Regulation (EU) No 1305/ The maximum aid intensity of 50% foreseen under the notified scheme (recital (21)) is therefore in line with the applicable maximum aid intensity set out in point (152)(e), in connection with point (153) (c) of the Guidelines. As regards non-productive investments in the context of a forest pasture adjustment the maximum aid intensity can go up to 90% (cf. recital (22)), which is in line with point (154) of the Guidelines. (50) Point (155) of the Guidelines is not applicable to the case at hand. (51) It can thus be concluded that the notified measure complies with the requirements of Chapter of Part II of the Guidelines Common Assessment Principles Contribution to a common objective (52) The present scheme contributes to improving the overall performance and sustainability of agricultural undertakings active in alpine and pasture farming (cf. recital (5)), thus fostering their competitiveness. It furthermore contributes to the relief of mountain forests from forest pastures (cf. also recital (5)) and thus to restoring, maintaining and improving biodiversity. The notified scheme complements the Bavarian Rural Development Programme (cf. recital (3)) and is compatible with the rules on the relevant common organisation of the market (cf. recital (28)). The Commission therefore considers that points (44) and (47) in connection with point (10) of the Guidelines are complied with. Need for State intervention 16 Regulation (EU) No 1305/2013 of the European Parliament and of the Council of 17 December 2013 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD) and repealing Council Regulation (EC) No 1698/2005, OJ L347 of , p

10 (53) According to point (55) of the Guidelines, the Commission considers that the market is not delivering the expected objectives without State intervention concerning the aid measures fulfilling the specific conditions laid down in Part II of these Guidelines. Therefore, such aid should be considered necessary to achieve the objectives of common interest specified under Section 3.1. of Part I of these Guidelines. The current aid scheme fulfils the specific conditions laid down in Part II, Chapter of the Guidelines, as described in recitals (41) - (51) above, and therefore point (55) of the Guidelines is complied with. Appropriateness of aid (54) According to point (57) of the Guidelines, the Commission considers that aid granted in the agricultural and forestry sectors, which fulfils the specific conditions laid down in the relevant Sections of Part II of those Guidelines, is an appropriate policy instrument. The aid scheme fulfils the specific conditions laid down in Part II, Chapter of the Guidelines, as described in recitals (41) - (51) above, and therefore point (55) of the Guidelines is complied with. (55) The notified aid measure is not at the same time included in the Bavarian Rural Development Programme (cf. recital (3)). The provisions of point (58) of the Guidelines therefore do not apply in this case. (56) The German authorities explained that direct grants are considered the only effective forms of aid to achieve the objective of preserving and developing alpine- and pasture farming in mountain areas (cf. recital (17) in connection with recital (5)). The Commission therefore considers that in the case at hand direct grants are an appropriate aid instrument. Incentive effect and need for aid (57) As explained by the German authorities (cf. recitals (26) and (27)), an aid application is submitted by the beneficiary before the work on the project or the aided activity has started. The content of the aid application meets the minimum requirements laid down in point (71) of the Guidelines. Therefore, the incentive effect requirement is complied with. Proportionality of the aid (58) Maximum aid intensity: Points (82) and (84) of the Guidelines stipulate that if the aid amount does not exceed the eligible costs and that the aid intensity respects the ceilings set out in Part II thereof, the aid is deemed to be proportionate. The current aid scheme fulfils the specific conditions regarding the eligible costs and the aid intensities laid down in Part II, Chapters of the Guidelines (cf. recitals (46) and (49)) and therefore points (82) and (84) of the Guidelines are complied with. (59) Value added tax is excluded from the eligible costs (cf. recital (24)) and the German authorities confirmed that the maximum aid intensity and the aid amount will be calculated by the granting authority at the moment of granting the aid and that the eligible costs will be supported by documentary evidence which is clear, specific and contemporary (cf. recital (24)). Points (85) and (86) of the Guidelines are therefore also complied with. 10

11 (60) Cumulation: Aid under the present scheme cannot be cumulated with other State aids or with de minimis aid (cf. recital (25)). Therefore, points (99) and (104) of the Guidelines are not relevant in the case at hand. The German authorities furthermore confirmed that aid under the notified scheme will not be cumulated with payments referred to in Articles 81(2) and 82 of Regulation (EU) No 1305/2013 in respect of the same eligible costs if such cumulation would result in an aid intensity or aid amount exceeding those laid down in the Guidelines (cf. also recital (25)). Therefore, point (102) of the Guidelines is complied with. Avoidance of undue negative effects on competition and trade (61) According to point (113) of the Guidelines, the Commission considers that, where an aid fulfils the conditions and does not exceed the relevant maximum aid intensities laid down in the applicable Sections of Part II of these Guidelines, the negative effect on competition and trade is limited to the minimum. The aid scheme fulfils the conditions laid down in Part II, Chapter of the Guidelines (cf. recitals (41) - (51) above), and therefore point (113) of the Guidelines is complied with. Environmental impact (62) Pursuant to point (52) of the Guidelines State aid notifications have to contain an assessment on whether or not the aided activity is expected to have any environmental impact. The German authorities indicated that the notified scheme will have no environmental impact (cf. recital (31)). The Commission furthermore considers that the forest pasture adjustment (Waldweidebereinigung) as such will have a positive environmental impact as it will protect and restore the fragile mountain forest (cf. recital (31)). Point (52) of the Guidelines is therefore also respected. Transparency (63) The German authorities have given assurance that the transparency requirements pursuant to points (128) and (131) of the Guidelines will be complied with (cf. recital (30)) Other conditions (64) As laid down in recitals (13) and (14), undertakings in difficulty and undertakings which are subject to an outstanding recovery order following a previous Commission decision declaring an aid illegal and incompatible with the internal market are excluded from the scope of the beneficiaries. Therefore, the conditions of points (26) and (27) of the Guidelines are also fulfilled. (65) Furthermore, the aid scheme is limited until 31 December 2018 which is in line with point (719) of the Guidelines. (66) In line with the foregoing, the Commission considers that the relevant provisions of the Guidelines are complied with. 11

12 4. CONCLUSION The Commission has accordingly decided not to raise objections to the notified aid scheme on the grounds that it is compatible with the internal market pursuant to Article 107(3)(c) TFEU. If any parts of this letter are covered by the obligation of professional secrecy according to the Commission communication on professional secrecy in State aid decisions 17 and should not be published, please inform the Commission within 15 working days of notification of this letter. If the Commission does not receive a reasoned request by that deadline Germany will be deemed to agree to the publication of the full text of this letter. If Germany wishes certain information to be covered by the obligation of professional secrecy please indicate the parts and provide a justification in respect of each part for which non-disclosure is requested. Your request should be sent electronically via the secured system Public Key Infrastructure (PKI) in accordance with Article 3(4) of Commission Regulation (EC) No 794/ , to the following address: agri-state-aids-notifications@ec.europa.eu. For the Commission Phil HOGAN Member of the Commission 17 Commission communication C(2003) 4582 of 1 December 2003 on professional secrecy in State aid decisions, OJ C 297, , p Commission Regulation (EC) No 794/2004 of 21 April 2004 implementing Council Regulation (EU) 2015/1589 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ L 140, , p. 1). 12