Article 2(2) / In the context of the definition of single economic unit, Polish authorities have received the working position of the Commission, pursuant to which the definition should be understood like in Annex 1 to GBER. According to this position, despite the fact that Article 2(2) does not refer to the links through natural persons or institutions or investors like universities or regional development funds, this kind of links has to be considered in order to ensure consistency of application of the Regulation on de minimis aid and Annex 1 to GBER. Therefore, it is not clear how to understand the indication in point 4 of the preamble that the Commission, for the purposes of the Regulation, deliberately chose only some criteria for evaluating the links. Polish authorities have so far assumed that the criteria adopted in Article 2(2) form a closed list and that the effects of application of Article 2(2) in individual cases in the form of both limitation (in comparison with the analysis based on Annex 1 to GBER) of the list of enterprises considered to be linked (by excluding some of the links), as well as the extension of the list (by excluding certain exceptions from the categories of links) are a natural and acceptable consequence of the inclusion of only selected types of relations by the Commission in Article 2(2).
For example, how to deal with the following cases:
  1. is an incubator (investor referred to in Article 3(2)(c) of GBER) temporarily holding 100% of the shares in the incubated undertaking in order to facilitate the start-up of the undertaking is linked to this undertaking? In view of the fact that the Regulation on de minimis aid does not point to exclusion of such entities from the definition of “single undertaking” for the purposes of applying this Regulation, do these entities have to be considered to be linked?Reply: Yes, the incubator and start-up in this example are linked. The Regulation does not distinguish for which purpose the controlling shares are held.
  2. if a natural person conducting economic activity (activity of a natural person on his own account and risk, subject to registration) is also the president of a company, or holds a significant share in it (the shares are owned by the natural person and not the business operated by him, the same relates to the role of the president), should such links be taken into account? If so, are markets (the same or adjacent) in which these entities operate important?Reply: To the extent that the natural person also acts as an undertaking, the link created is relevant from a de minimis perspective. Undertakings linked through this single-person undertaking are considered a single undertaking. The markets are not important.
  3. if a natural person (the investor) not running any registered economic activity has a number of companies, do these companies have to be regarded as one undertaking?Reply: No as long as the investor does not carry out any economic activity (is not an undertaking himself). It does not need to be an economic activity registered in the trade register (authorised persons like lawyers and accountants also carry out economic activities)
  4. if a group of natural persons holding shares in one company at the same time holds shares in another company in the same proportions (where it is known that they interact with each other in order to coordinate the activities of the held companies), and these companies carry out similar or complementary activity, should such links among companies be taken into account? Is it important for the assessment of links that these persons conduct or not their economic activities beyond those companies?Reply: If the natural persons do not act as undertakings outside the shareholding of these companies, they shall not fall under the definition of Article 2 of the de minimis Regulation that defines single undertaking as companies linked through one or more undertakings.
  5. if between the entities, which are not linked by any relations as described in Article 2(2), there are obvious economic relations, e.g. they appear under one brand and are perceived by the market as a single entity, or have the same registered address and use the same assets, should these entities be treated as one undertaking?Reply: If none of the conditions in Article 2(2) in the de minimis regulation are met, other factual circumstances like the ones you describe do not need to be taken into account for defining the single undertaking.