EU state aid approval for the grant of EMI share options expired on 6 April 2018. HMRC has, therefore, advised companies to delay the grant of EMI share options on or after 7 April 2018 until the EU reaches a decision on renewing state aid approval for the EMI scheme.

Whilst it is expected that state aid approval will be renewed, there is nothing to say when the renewal is likely to take place. During the period between 7 April 2018 and the decision by the EU Commission on a new approval, EMI share options may be treated as non-tax advantaged employment-related securities options. It is not yet clear whether any approval will apply retrospectively to EMI share options granted during this period.

EMI share options granted up to and including 6 April 2018 will not be affected by the lack of renewed approval. HMRC says it is working hard to ensure the delay in obtaining the renewed approval will be as short as possible and, in the meantime, will continue to apply its current guidance and practice in relation to employment-related securities options validly granted as EMI share options before 6 April 2018.

UPDATE

The European Commission has now given state aid approval for the UK Enterprise Management Incentive scheme. The previous approval expired on 6 April 2018 and the new approval will continue to apply until the UK leaves the EU. The approval was announced on 15 May 2018.

The Commission’s assessment found that the prolongation of the EMI scheme is necessary to help UK small and medium sized enterprises attract and retain talented and skilled personnel. It also found that the scheme contains many safeguards, such as a cap on the value of the share options that can be subject to the tax advantage both at the employee and employer level, ensuring that potential distortions to competition are limited. It is on this basis that the Commission has concluded that the EMI scheme is in line with EU State aid rules.

This briefing was first posted on 17 April 2018 and updated on 22 May 2018