Governmental authorities can under circumstances grant State aid to undertakings for the provision of Services of General Economic Interest (SGEI). State aid for SGEI is one of the exemptions on the State aid prohibition, which can be applied if all conditions for SGEI aid are met. For aid granted under the Commission’s SGEI Decision, one of these conditions is a bi-annual reporting obligation for the authority granting the aid. In practice, it appears that authorities granting State aid do not always comply with this reporting obligation. In order to raise more awareness for this obligation, we will focus on the reporting obligation (for Dutch decentralised governments) in this blogpost. What is state aid? European State aid law focusses on the protection of competition by preventing governments from unfairly favouring certain undertakings through the State aid prohibition which is laid down in Article 107 of the Treaty on the functioning of the European Union (TFEU). A measure comprises State aid within the meaning of Article 107 TFEU if five cumulative conditions are met: The aid is granted to an undertaking which engages in an economic activity; The aid is granted directly or indirectly through State resources; The aid grants the undertaking an economic benefit which the undertaking would not have obtained under normal market conditions/in absence of State intervention; The aid is selective: it is granted to one or a select group of undertaking(s) or a specific sector/region; The aid distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods and affects trade between Member States. If all five conditions are met, the aid qualifies as State aid within the meaning of Article 107 TFEU, and is in principle prohibited unless approved by the European Commission or unless an exemption applies. For a breach of the State aid prohibition, the form in which the aid is granted is irrelevant; there may be a positive performance from a government, such as a grant, but also the deprivation of costs that an undertaking typically incurs in the normal course of its business can qualify as State aid. State aid for SGEI Some economic activities serve a particular public interest but are unprofitable, meaning that undertakings would rather not carry out these activities. Think of the operation of a bus line on a route with few inhabitants or certain postal services. For such activities, qualifying as SGEI, there are exceptions to the State aid prohibition to ensure that these (mostly unprofitable) public service obligations will be exercised in the public interest. There are generally three types of SGEI aid: SGEI De-minimis Based on this exception, a single undertaking providing an SGEI in one Member State may receive up to €750,000 in aid over a period of three calendar years. SGEI Decision Under this exception, an undertaking can be formally entrusted with the exercise of an SGEI in a designation decision. For exercising this specific SGEI, the undertaking in question can receive up to €15 million per year in SGEI aid, for a maximum period of 10 years, as compensation for exercising the SGEI. There should be no overcompensation. Aid granted under the SGEI Decision must be reported biannually. SGEI Notice This exception applies to compensation for the provision of an SGEI which exceeds the amount of the SGEI Decision (€15 million per year), which is granted for a period longer than 10 years, or which is granted within categories excluded in the SGEI Decision. Such aid must be notified to the European Commission for prior approval. Reporting obligations for State aid under the SGEI Decision A significant part of SGEI State aid granted by decentralised authorities is exempted under the SGEI Decision. This exemption requires that prior to the grant of the aid, the necessary specifications of the aid measure are laid down in a designation decision in which the undertaking concerned is designated the exercise of the specific SGEI. The SGEI Decision however also requires ex post reporting through the bi-annual reporting obligation. Strictly speaking, the Member State is obliged to report to the Commission on the SGEI State aid granted over the period of two years. This reporting obligations comprises amongst others a description of the application of the SGEI Decision, the total amount of aid granted under the SGEI Decision and any difficulties or complaints in relation to aid granted under the Decision. The centralised governments of the Member States do however not possess all the relevant information relating to SGEI State aid granted by decentralised authorities. It is therefore necessary that these decentralised authorities report to the centralised government (i.e., the State) on the SGEI State aid that they have granted to undertakings, to enable the State to fulfil its reporting obligations towards the European Commission. For the Dutch local authorities, the reporting is done through the State aid Coordination Point operated by the Ministry of the Interior and Kingdom Relations and Knowledge Centre Europa Decentraal. How to report? In order for Dutch local authorities to fulfil their reporting obligations towards the State relating to the SGEI Decision, these authorities must supply Knowledge Centre Europa Decentraal with the information regarding SGEI State aid granted in the past two years, in every even year (2024, 2026, etc.). The Knowledge Centre will check the information, and if correct and complete, forward it to the Ministry. The information that must be supplied to the Knowledge Centre concerns in particular the number of aid measures granted under the SGEI Decision, the amounts of State aid, the duration of the measures and the economic sectors within which the State aid was granted. Considering the above, it is important for decentralised authorities to keep proper records of annual aid grants so that reporting obligations can be properly met. Do you have questions on this topic? Or do you, as a local authority, need support in preparing SGEI aid reporting? Feel free to contact Monika Beck or one of our other state aid specialists.

Introduction The Institute of Directors (IoD) recently published a new version of the Code of Conduct for Directors. The IoD is a British professional organization for company directors, senior business leaders, and entrepreneurs. Established in 1903, it is the longest-running organization for professional leaders in the UK. Approximately 75% of FTSE 100 companies have an IoD member on their board or in a senior management role. The voluntary Code of Conduct is described by the IoD as a practical tool to help directors make “better choices.” It represents a voluntary commitment by directors and their organizations to support and foster a positive organizational culture, ethics, and integrity. This article compares the IoD Code with the Dutch Corporate Governance Code 2022 (NCGC). The comparison focuses solely on relevant governance aspects related to ESG objectives. Comparison Sustainability and ESG (Environmental, Social, Governance) have become critical focus areas in corporate governance. As noted, we compare ESG-related guidelines from the NCGC and the IoD Code of Conduct for Directors 2024 (IoD Code). Both codes provide governance frameworks but approach the subject from different cultural and legal contexts. The NCGC applies to Dutch listed companies and has a “comply or explain” character. The IoD Code, on the other hand, is voluntary for directors and organizations affiliated with the IoD. 1. Sustainable Value Creation The NCGC emphasizes the importance of long-term sustainable value creation (Chapter 1.1). Directors are expected to develop strategies that consider social and environmental impacts, based on “People, Planet, Profit.” It highlights double materiality: how the company influences sustainability and how sustainability influences the company. The IoD Code addresses the principle of Responsible Business. It encourages directors to integrate ethical and sustainable business practices into their decision-making, with explicit attention to broader societal and environmental impacts. Comparison Both codes stress the importance of sustainability, but the NCGC includes more specific requirements, such as mandatory reporting on sustainability effects. The IoD Code is less detailed but strongly focuses on ethical behavior by directors. 2. Risk Management and Governance The NCGC extensively addresses risk management, including identifying ESG-related risks such as climate change and social inequality. Directors are required to implement adequate internal control systems and evaluate them regularly. In the IoD Code, risk management is embedded within broader principles of responsibility and transparency. Directors are encouraged to manage risks responsibly and to avoid prioritizing short-term shareholder profits over long-term resilience. Comparison The NCGC offers more concrete guidelines on managing ESG risks, while the IoD Code emphasizes ethical principles that influence risk management. 3. Stakeholder Engagement The NCGC explicitly requires companies to develop policies for effective dialogue with stakeholders, including the involvement of employees in decision-making. The IoD Code highlights the importance of transparency and open communication with stakeholders, including mechanisms such as speak-up policies to report misconduct. Comparison While both codes value stakeholder engagement, the NCGC places more emphasis on structured and strategic dialogue, whereas the IoD Code focuses more on ethical behavior and transparency. 4. Diversity and Inclusion The NCGC mandates a diversity policy with concrete goals for gender equality and other diversity aspects. In the IoD Code, diversity is addressed under the principle of Fairness. Directors are encouraged to promote inclusive cultures where everyone feels valued. Comparison The NCGC provides stricter and measurable guidelines for diversity, while the IoD Code adopts a broader behavioral approach. Conclusion Both codes emphasize the importance of ESG principles in governance but approach the subject differently. The NCGC offers detailed, legally anchored guidelines focusing on implementation and reporting. The IoD Code, on the other hand, centers on the behavior and ethics of individual directors. Together, these codes provide valuable frameworks to support directors in fostering sustainable and responsible enterprises. If you would like to know more about good governance and ESG, feel free to contact Mathijs Arts or Patrycja Chelmiak.