L_2005058EN.01002901.xml
| 4.3.2005 | EN | Official Journal of the European Union | L 58/29 |
COMMISSION DECISION
of 12 May 2004
on the State aid implemented by Spain for further restructuring aid to the public Spanish shipyards
State aid Case C 40/00 (ex NN 61/00)
(notified under document number C(2004) 1620)
(Only the Spanish text is authentic)
(Text with EEA relevance)
(2005/173/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community, and in particular the first subparagraph of Article 88(2) thereof,
Having regard to the Agreement on the European Economic Area, and in particular Article 62(1)(a) thereof,
Having regard to Council Regulation (EC) No 1540/98 of 29 June 1998 establishing new rules on aid to shipbuilding (1),
Having regard to Council Regulation (EC) No 1013/97 of 2 June 1997 on aid to certain shipyards under restructuring (2),
Having called on interested parties to submit their comments pursuant to the provisions cited above (3) and having regard to their comments,
Whereas:
I. PROCEDURE
| (1) | Based on Regulation (EC) No 1013/97, the Commission in a decision of 6 August 1997 (4) authorised restructuring aid for Spanish public shipyards amounting to approximately EUR 1,9 billion. According to the Council Regulation the condition for the approval of the aid was that no more aid for restructuring purposes should be provided. |
| (2) | By information from the press, the Commission was informed that a number of transactions involving the public Spanish civil shipyards took place during the years 1999 and 2000. By letters dated 27 January 2000 and 29 March 2000, the Commission requested information on this matter. Spain did not reply to these letters. |
| (3) | By decision of 12 July 2000 the Commission initiated the procedure laid down in Article 88(2) of the EC Treaty (hereafter the opening) concerning the transaction whereby the State holding company Sociedad Estatal de Participationes Industriales (hereafter SEPI) bought the two shipyards Juliana and Cadiz and the motor factory Manises, each as separate companies, from Astilleros Españoles SA. The Spanish authorities were informed of the decision in a letter from the Commission dated 1 August 2000. |
| (4) | Spain by letters dated 18 May 2001 and 24 September 2001 submitted its comments on the opening of the procedure. It also informed the Commission that the State holding company SEPI in July 2000 had decided to merge all the publicly owned shipyards in Spain into one group. |
| (5) | The Commission decided on 28 November 2001 to extend the procedure laid down in Article 88(2) of the EC Treaty (hereafter first extension), in respect of the further transactions between, on the one hand, SEPI and Bazán and, on the other hand, AESA and Bazán to create the new group IZAR. By letter dated 28 November 2001, the Commission informed Spain of the extension of the procedure and requested all relevant information that may help to assess the aid element of the transactions. By letter dated 29 November 2002 the Commission clarified that, to make the proper evaluations, it needed the annual accounts of the concerned shipyards and AESA, and any other documentation that would clarify how the companies were evaluated at the time of the change in ownership. |
| (6) | Spain by letter dated 31 January 2002 submitted its comments on the first extension of the procedure. The Commission reminded Spain, in a letter dated 28 February 2002, that annual reports for the companies still had to be provided. Spain provided further information by letter dated 29 July 2002, which however did not include the requested annual reports. |
| (7) | Since Spain did not provide the requested annual reports the Commission decided on 12 August 2002 to issue an information injunction pursuant to Article 10(3) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (5) (hereafter the procedural regulation) to order Spain to submit this information. Spain was informed of this by letter dated 12 August 2002. The Commission underlined that if it did not receive the requested information, it would take a final decision based on the information it had available. Spain by letter dated 16 October 2002 replied to the information injunction but did not provide the requested annual reports. |
| (8) | The Commission decided on 27 May 2003, to further extend the procedure laid down in Article 88(2) of the EC Treaty (hereafter second extension), covering newly found suspected illegal State aid linked to transactions between SEPI and AESA and its shipyards. By letter dated 27 May 2003 the Commission informed Spain of the extension of the procedure and requested all relevant information that may help to assess the suspected aid. By letter dated 10 July 2003, Spain replied to the second extension. By letters dated 16 October and 11 November 2003, the Commission requested further clarifications. Spain replied by letter dated 25 November 2003 and provided further information by letter dated 14 April 2004. |
| (9) | Following the opening, the Commission received comments from Denmark by letter of 18 December 2000, and following the first extension, comments from the UK by letter of 22 February 2002. Following the second extension, comments were received from Royal Van Lent Shipyard by letter dated 24 September 2003, from a party requesting anonymity by letter dated 24 September 2003 and from IZAR by letter dated 6 October 2003. These comments were forwarded to Spain by letters dated 14 February 2001, 6 March 2002 and 13 October 2003. Spain provided its comments by letters dated 14 March 2001, 4 April 2002 and 10 November 2003. IZAR on 14 November 2003 brought an action (6) against the Commission before the Court of First Instance, requesting an annulment of the second extension of the procedure. |
II. DETAILED DESCRIPTION OF THE AID
| (10) | The concerned companies are Astilleros Españoles SA (AESA), E.N. Bazán de Construcciones Navales Militares SA (Bazán), IZAR Construcciones navales (IZAR), Astilleros de Cadiz SRL (Cadiz), Astilleros de Puerto Real SRL (Puerto Real), Astilleros de Sestao SRL (Sestao) Astilleros de Sevilla SRL (Sevilla) Juliana Constructora Gijonesa SA (Juliana), Manises Diesel Engine Company SA (Manises), Astilleros y Talleres del Noroeste (Astano, which later changed name to Fene). |
| (11) | Since 1998, all public Spanish shipyard companies belong to the structures of the Spanish State holding company SEPI. By 1998 all civil yards, apart from the directly owned Astano, were independent companies, owned by the holding AESA, a subsidiary of SEPI. AESA thus did not carry out any shipbuilding activities on its own, but was a holding company actively managing its shipyard companies. SEPI also owned Bazán, a company which mainly comprised three military shipyards (not as independent companies). By the beginning of 1998 the structure of ownership of the public shipyards was as follows:  |
| (12) | In a first set of transactions (hereafter referred to as transfer 1) on 28 December 1999, SEPI bought shipyard companies Cadiz, Juliana and the ship motor factory company Manises from AESA for a price of EUR 15 300 000 (7). The yards Barreras and Astander were privatised and are no longer part of the present investigation. This led to the following structure:  |
| (13) | SEPI in July 2000 decided to merge all the publicly owned shipyards into one group. The merger took place through two main operations. In one operation (hereafter referred to as transfer 2), the SEPI-owned military shipbuilding group Bazán bought AESA’s three remaining shipyard companies (Puerto Real, Sestao and Sevilla) for ESP 1 each. |
| (14) | In the other operation (hereafter referred to as transfer 3), Bazán bought three shipyard companies (Juliana, Cadiz and Astano) and the ship motor factory Manises directly from SEPI, also this for ESP 1 each. All the companies were then dissolved and merged into Bazán, which changed name to IZAR. The current structure of the shipyards is thus as follows:  |
| (15) | In the opening of the procedure the Commission stated that it had doubts whether transfer 1, where SEPI paid a price, which then was reported to be EUR 60 million to AESA for the three companies Juliana, Cadiz, and Manises contained State aid. |
| (16) | It was also doubtful whether such aid was compatible with the common market as it appeared not to be compatible with the Commission decision of 1997 approving the last restructuring aid package for the public shipyard group and, therefore, constituting incompatible restructuring aid pursuant to the first indent of the second subparagraph of Article 5(1) of Regulation (EC) No 1540/98 establishing new rules on aid to shipbuilding (hereafter the Shipbuilding Regulation). This finding in particular was based on the following arguments: |
| (17) | Firstly, this ‘sale’ did not appear to be a genuine operation but rather a capital injection to allow AESA and its remaining yards (Puerto Real, Sevilla and Sestao) to continue in business for the time being. |
| (18) | Secondly, given their previous performance and apparently continued poor results, no commercial investor seemed likely to be prepared to purchase the yards on these conditions. |
| (19) | The Commission on 25 November 2001 decided to extend the procedure to cover transfer 2 and 3 undertaken to merge all public Spanish yards into one group. In the extension of the procedure the Commission noted that there was a proximity of the transactions that took place in between 1999 and 2000 which ultimately led to the creation of one group for all public yards. The procedure therefore needed to be |
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