L_2015269EN.01000101.xml
| 15.10.2015 | EN | Official Journal of the European Union | L 269/1 |
COMMISSION DECISION (EU) 2015/1824
of 23 July 2014
on the measures taken by Germany with regard to Airport Niederrhein (Weeze) und Flughafen Niederrhein GmbH — SA.19880 and SA.32576 (ex NN/2011, ex CP/2011)
(notified under document C(2014) 5084)
(Only the English text is authentic)
(Text with EEA relevance)
THE EUROPEAN COMMISSION,
Having regard to the Treaty on the Functioning of the European Union, and in particular the first subparagraph of Article 108(2) thereof (1),
Having regard to the Agreement on the European Economic Area, and in particular Article 62(1)(a) thereof,
Having called on interested parties to submit their comments pursuant to the provisions cited above (2) and having regard to their comments,
Whereas:
1. PROCEDURE
| (1) | Between 2003 and 2006, the Commission received several complaints alleging that regional authorities had granted illegal State aid to Niederrhein-Weeze airport (hereinafter ‘the airport’). |
| (2) | By letters dated 13 October 2005, 2 March 2007, 3 August 2007, 19 October 2010 and 1 April 2011 The Commission requested information from Germany in relation to those complaints. |
| (3) | Germany replied to the Commission's requests for information by letters dated on 21 December 2005, 2 February 2006, 14 June 2007, 18 October 2007, 11 November 2010 and 30 May 2011. However, the reply of Germany of 30 May 2011 was incomplete as it did not address questions referring to issues that related to periods prior to July 2009. Germany indicated that they were refusing to reply to such issues on the ground that those issues had previously been the subject of an investigation which the Commission had allegedly closed July 2009. |
| (4) | On 24 August 2011 the Commission issued a reminder to Germany in accordance with to Article 10(3) of Council Regulation (EC) No 659/1999 (3) (hereinafter: ‘Procedural Regulation’) to Germany giving them the possibility to provide information until 19 September 2011. The Commission added that it would consider issuing an information injunction absent a reply within that deadline. |
| (5) | By email dated 13 September 2011 Germany requested an extension of the deadline until 19 October 2011. The Commission agreed to the extension requested. |
| (6) | Germany submitted their reply on 19 October 2011. However, it remained incomplete as Germany maintained their refusal to reply to issues concerning periods prior to July 2009. |
| (7) | By letter dated 25 January 2012, the Commission informed Germany that it had decided to initiate the procedure laid down in Article 108(2) of the Treaty on the Functioning of the European Union (‘TFEU’) with respect to the aforementioned illegal aid (‘the opening decision’). |
| (8) | By email dated 1 February 2012 Germany requested an extension of the deadline within which to submit their comments on the opening decision. This extension was granted by the Commission services by e-mail dated 10 February 2012. |
| (9) | Germany submitted its observations to the Commission on 13 March 2012 and supplemented them with further documents on 4 March 2013. |
| (10) | A corrigendum of the opening decision was adopted on 13 July 2012. |
| (11) | The opening decision was published in the Official Journal of the European Union on 14 September 2012 (4). The Commission invited interested parties to submit their comments on the measures in question within one month of the date of publication. |
| (12) | The Commission received comments from Düsseldorf airport, the district of Kleve, FN GmbH, and several other interested parties, notably companies, whose operations depend on the existence of the Niederrhein-Weeze airport. On 18 April 2013, 3 May 2013 and 19 June 2014, the Commission transmitted these comments on to Germany. By letter dated 19 August 2013 and 3 July 2014, Germany sent its observations on the comments of the interested parties. |
| (13) | By letters dated 18 April 2013, 29 October 2013, 17 March 2014 and 16 May 2014 the Commission requested further information. Germany responded by letters dated 19 August 2013, 17 December 2013, 15 January 2014, 16 April 2014, 8 May 2014 and 25 May 2014. |
| (14) | By letter of 18 June 2014, Germany has accepted that the present Decision is adopted in English. Therefore, only the English version is authentic. |
2. GENERAL CONTEXT
2.1. General presentation of the airport
| (15) | The airport is located in Germany in the Land Nordrhein-Westfalen in the Landkreis (administrative district) Kleve between the municipalities of Weeze and Kevelaer adjacent to the German-Dutch Border. To the south, the next largest city is Duisburg, about 60 km away. To the north, the city of Nijmegen (Netherlands) is some 50 km away. |
| (16) | The ten closest airports are:
| — | Düsseldorf (distance of 51 minutes travelling time by road or 76 km), |
| — | Eindhoven, NL (1 hour 12 minutes or 88 km), |
| — | Maastricht, NL (1 hour 14 minutes or 98 km), |
| — | Köln-Bonn (1 hour 23 minutes or 133 km), |
| — | Dortmund (1 Hour 25 minutes or 120 km), |
| — | Liege, BE (1 hour 41 minutes or 152 km), |
| — | Antwerp, BE (1 hour 54 minutes or 153 km), |
| — | Rotterdam, NL (1 hour 44 minutes or 172 km), |
| — | Münster-Osnabrück (1 hour 46 minutes or 175 km), and |
| — | Brussels, BE (2 hour 10 minutes or 200 km). | |
| (17) | Between 1954 and 1999, the airport was used by the United Kingdom's Royal Air Force as military airport. Following its conversion into a civilian airport, passenger flights commenced in 2003. |
| (18) | The airport has a runway of 2 440 metres. Its terminal has capacity for 3,5 million passengers. The passenger numbers have evolved as follows: Table 1 Traffic at Niederrhein-Weeze airport between 2003 and 2012
| Year | Number of Passengers (Total) | Index of growth | | 2003 | 207 992 | 100 | | 2004 | 796 745 | 383 | | 2005 | 591 744 | 285 | | 2006 | 585 403 | 281 | | 2007 | 848 852 | 408 | | 2008 | 1 524 955 | 733 | | 2009 | 2 403 115 | 1 155 | | 2010 | 2 896 999 | 1 392 | | 2011 | 2 421 720 | 1 164 | | 2012 | 2 200 000 | 1 058 | | Source: Germany's observations to the opening decision for the years 2003-2011, and http://unternehmen.airport-weeze.com/de/historie.html for 2012. | |
| (19) | The airport is currently served by Ryanair and Transavia (5). The airlines cover over 50 international destinations. All passenger volume at the airport is currently generated by Low Cost Carriers (hereinafter ‘LCCs’). Ryanair's passenger share of total passengers at the airport amounts to [80-99] (6) %. Ryanair has been present at the airport since its opening and has, in the intervening period, made the airport one of its German base by stationing there nine aircraft permanently (as from Summer 2013). |
| (20) | Until 2010, more than 50 % of the airport's passengers came from the Netherlands, the rest stemming mainly from the surrounding German and partially Belgian regions. According to the latest public information (7), the share of Dutch passengers dropped to around 40 %. |
2.2. Development of the airport
2.2.1. Development of the Ownership of the airport
| (21) | The airfield was founded 1954 by the Royal Air Force for military purposes. In the early 1990s, the Royal Air Force announced its intention to withdraw from the airfield by 1999. The ownership of the airport was due to be transferred to the German Federal Government. In view of the expected loss of some 400 civilian jobs, the district of Kleve and the municipality of Weeze in 1993 planned to create a civilian airport (Euroregionales Zentrum für Luftverkehr, Logistik und Gewerbe, ‘EuZZLG’) on the former military airfield. To that end, they established a company, Flughafen Niederrhein GmbH (hereinafter ‘FN GmbH’), to manage the conversion of the former military airfield for subsequent civilian use. |
| (22) | FN GmbH was registered in 1993 as a private limited liability company, with an equity capital of DM 50 000 (= 25 564 EUR).The founding shareholders were the district of Kleve (52 %), the municipality of Weeze (48 %). |
| (23) | From the outset, the municipality and the district of Kleve envisaged that the airport would be operated by a private company. In furtherance of that objective, four steps were identified:
| (a) | Finding the private investor who should be responsible for the preparation and the operation of the airport; |
| (b) | Obtaining the necessary permit for the conversion of the military airfield into a civilian airport; |
| (c) | Concluding a treaty with the Netherlands concerning the use of its air space; |
| (d) | Purchase of the area from the Federal Government. | |
| (24) | The Royal Air Force transferred the ownership of the airport on 30 November 1999 to the German Federal Government. |
| (25) | On 16 December 1999, the district of Kleve and the municipality of Weeze incorporated a further company, Entwicklungs- und Erschließungsgesellschaft Laarbruch GmbH (‘EEL GmbH’). 52 % of the shares in EEL GmbH are held by the district of Kleve and 48 % by the municipality of Weeze. |
| (26) | The then tasks of EEL GmbH were different from the tasks of FN GmbH. While FN GmbH had been created to manage the conversion of the former military airport, EEL GmbH was entrusted in particular with the administration of the facilities between the closure of the military airport in 1999 and its purchase by a private investor. |
| (27) | In this regard, EEL GmbH had to tear down the infrastructures and facilities of the former military airport estate for a |
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