ANTI-CRISIS SHIELDS – STATE AID SUMMARY

Due to the fact that the new “Anti-crisis Shield” came into force as of 18th April 2020, we present below a summary of state aid issues related to the new support instruments, as well as the support provided by the previous “Anti-crisis Shield”.

Non-state aid support

A part of the support provided under both ‘Anti-crisis Shields’ is not qualified as a state aid. This means that the support does not require a beneficiary to report the aid using the appropriate forms, or to calculate the available state aid limits. This applies to, in particular:

– jobs protection refund for enterprises suffering a decrease in turnover (article 15g of the COVID Act),

– “backwards” settlement of tax loss in PIT and CIT,

– temporary suspension of provisions related to payment gridlocks,

– resignation from simplified PIT and CIT advances,

– eReceipts,

– postponement of deadlines related to taxes, financial reporting and perpetual usufruct.

The fact that the above forms of support are not covered with public aid regulations results from their nature, i.e. they are forms of support directed to all entrepreneurs, regardless of e.g. their industry or size of activity (it cannot therefore constitute state aid).

Support that constitutes state aid

Some support instruments constitute state aid due to the fact that they refer to specific industries or types of entrepreneurs, or due to the discretionary nature of the reliefs. This type of support includes in particular:

– securities and guarantees provided by BGK (Bank Gospodarstwa Krajowego),

– reliefs in tax payments provided by the tax regulations,

– tax exemptions and prolongation of payment deadlines related to the real estate tax introduced by municipalities for the entrepreneurs affected by the negative consequences of COVID-19,

– exemption from interest for tax arrears for specified groups of taxpayers (if a regulation will be issued),

– refund of employment costs for SMEs granted by a district governor (starosta),

– reliefs granted by municipalities, districts (powiat) and voivodships related to civil law liabilities and liabilities related to real estate management,

– refund of business costs for the self-employed granted by a district governor (starosta),

– microloans from the Labour Fund for microenterprises,

– exemptions from social security contributions for microenterprises,

– support for creative and event industry (article 15m of the COVID Act)

Legal background

The basis for public aid granted in connection with the COVID-19 epidemic is the European Commission Communication of 19 March 2020 on the Temporary Framework for State aid measures to support the economy in the current COVID-19 outbreak. This Communication sets out the conditions and limits of assistance related to an epidemic. The general limit for aid is EUR 800,000 per enterprise. At the same time, the communication limits the granting of aid (e.g. for entrepreneurs who were in a difficult situation at 31 December 2019).

The Communication plays a key role in the field of the state aid related to the COVID-19 epidemic by indicating the scope and types of aid that will be recognized by the European Commission as a permitted state aid. What is more, the Communication provides for an important guidance for Member States in designing new support instruments.

In connection with the Communication, Poland has notified the European Commission its own state aid programs on a regular basis, including “Anti-crisis Shields”, for which Poland received positive recommendations from the Commission. Currently, proceedings pending before the European Commission regard, for example:

– compatibility of the” Financial Shield” with the common market, i.e. a wide range of financial support for entrepreneurs implemented by PFR (more broadly about the solutions of the “Financial Shield” in our Tax Alert no. 11/2020),

– refund of salaries, reliefs in taxes and social security contributions and the other support,

– state aid in form of subsidies or repayable support related to the operational programs.

State aid limits

The basic limit for the state aid granted related to COVID-19 is EUR 800,000 per enterprise. What is important, the aid granted in connection with COVID-19 constitutes a separate type of aid from e.g. de minimis and regional aid. This means that the available state aid limit is not reduced by the amount of de minimis and regional aid received.

The enterprise calculating the state aid limit should take into account the nature of the obtained support. For example, the amounts of the state aid consisting of deferred payments should be calculated as a hypothetical remuneration for deferred payments (detailed calculation formulas for various forms of assistance apply in this respect).

The state aid granted in connection with the COViD-19 epidemic is also limited in time, i.e. it cannot be granted after 31 December 2020. The exception in this respect is the aid in the form of tax benefits, which is considered to be granted on the day when the annual tax return for 2020 is submitted.

At the same time, we would like to point out again that support that does not constitute state aid is not covered by the limit of EUR 800,000 (the amounts paid may exceed this amount).

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