L_2015269EN.01007101.xml
| 15.10.2015 | EN | Official Journal of the European Union | L 269/71 |
COMMISSION DECISION (EU) 2015/1826
of 15 October 2014
on the State aid SA.33797 — (2013/C) (ex 2013/NN) (ex 2011/CP) implemented by Slovakia for NCHZ
(notified under document C(2014) 7359)
(Only the Slovak 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 Article 108(2) thereof,
Having regard to the Agreement on the European Economic Area, and in particular Article 62(1)(a) thereof,
Having regard to the decisions by which the Commission initiated the procedure laid down in Article 108(2) of the Treaty on the Functioning of the European Union (1),
Having called on interested parties to submit their comments pursuant to the provisions cited above, and having regard to their comments,
Whereas:
1. PROCEDURE
| (1) | By e-mail of 13 October 2011 the Commission received a complaint (2) alleging that Slovakia had granted unlawful aid to a company called Novácké chemické závody, a.s. v konkurze (‘NCHZ’). |
| (2) | The Commission forwarded the complaint to Slovakia on 17 October 2011 together with a request for information. The Slovak authorities requested a Slovak version of the documents, which was sent to them by e-mail on 16 January 2012. |
| (3) | The Slovak authorities submitted the requested information by letter dated 17 February 2012. Further requests for information were sent by the Commission on 22 March 2012 and 21 June 2012. Slovakia responded on 23 April 2012 and 11 September 2012. |
| (4) | The complainant sent further information on its complaint on 14 June 2012. At the request of the complainant, a meeting between the Commission and the complainant was held on 24 January 2013. Additional information was submitted by the complainant by e-mails of 8 and 22 March 2013. |
| (5) | By letter dated 2 July 2013 the Commission informed Slovakia that it had decided to open the procedure laid down in Article 108(2) of the Treaty on the Functioning of the European Union in respect of the aid. |
| (6) | The Commission decision to open the procedure was published in the Official Journal of the European Union (3). The Commission invited interested parties to submit their comments on the alleged aid measure. |
| (7) | Slovakia provided comments on the decision to open the procedure on 3 September 2013 and on 2 and 30 December 2013. At the request of the Slovak authorities a meeting between Slovakia and the Commission was held on 7 October 2013 and 17 February 2014. |
| (8) | The Commission received two comments from interested parties (both on 12 November 2013). It forwarded them to Slovakia on 2 December 2014, together with a set of additional questions. Slovakia was given the opportunity to react; its comments were received by letter dated 14 January 2014. |
| (9) | The Commission asked Slovakia further questions on 2 May 2014, to which Slovakia replied on 14 and 30 May 2014. The Commission also sent an additional request for clarification by e-mail to one of the interested third parties on 20 March 2014, to which the third party eventually replied on 6 May 2014. |
2. BACKGROUND TO AND DESCRIPTION OF THE MEASURES
2.1. Beneficiary
| (10) | NCHZ (whose activities are now pursued by the company Fortischem, a.s.) was a chemical producer with three divisions. The company's main activities were the production of calcium carbide and technical gases, the production of polyvinylchloride (PVC) and its processing products and — to an increasing extent — basic and special low tonnage chemicals. |
| (11) | NCHZ operated a chemical plant (founded in 1940) located in the Trenčín region in western Slovakia, which is a region eligible for assistance under Article 107(3)(a) TFEU. The company was privately owned (4). |
2.2. Bankruptcy proceedings of NCHZ
| (12) | NCHZ entered bankruptcy proceedings on 8 October 2009, claiming that it was unable to sustain its operations due to a fine of EUR 19,6 million imposed by the Commission for its participation in a calcium carbide cartel (5). The Commission notes, however, that the fine was not the only major liability of NCHZ and that NCHZ filed for bankruptcy before the cartel fine became due. |
2.2.1. Strategically Important Companies Act
| (13) | One month after NCHZ entered into bankruptcy proceedings, Slovakia adopted Act No 493 of 5 November 2009 on certain measures regarding strategically important companies, giving a pre-emption right to the State to buy strategic companies out of bankruptcy proceedings and requiring the bankruptcy administrator to ensure continued operation of the strategic company during the proceedings. The Government declared NCHZ to be a strategic company under that Act on 2 December 2009, i.e. one day after the Act entered into force. The Act expired on 31 December 2010. NCHZ was the only company to which the Act was applied. |
2.2.2. Decision to continue operation in bankruptcy
| (14) | In January 2011, on the basis of a decision of the creditors' committee and the secured creditors, the bankruptcy administrator of the company was instructed to continue the operation of NCHZ in bankruptcy even after the Act expired. This decision was based on an economic report analysing the situation of the company and concluding that the outcome of the bankruptcy proceedings would be more favourable to the creditors if the company continued operating. The decision to continue the operation was also approved by the Trenčín Court in February 2011. |
| (15) | There were two relevant creditors' bodies involved in deciding whether to continue operation of NCHZ: the Creditors' Committee, consisting of 5 entities (6), four of which were privately owned. The one public entity in the Committee was the Slovak National Property Fund (Fond národného majetku Slovenskej Republiky). In addition, NCHZ had six secured creditors. Of these six secured creditors, four were public entities — the National Property Fund, the Environmental Fund (Environmentálny fond), the Slovak Guarantee and Development Bank (Slovenská záručná a rozvojová banka, a. s.) and the Town of Nováky. |
2.2.3. Sale of the NCHZ business
| (16) | During the bankruptcy proceeding, there were two open tenders organised by the administrator for the sale of the business of NCHZ. The first one was unsuccessful since only one bidder participated in the final stage, offering EUR 2 million. The administrator refused that bid and the tender was cancelled by a decision of the Trenčín Court. The business was sold following a second tender organised in 2011. In that tender, two bidders qualified for the final stage, one offering EUR 2 046 000 and the other EUR 2 200 000. The bidder with the highest bid was selected. The winning bidder was a Czech company called Via Chem Slovakia. The sale contract with Via Chem Slovakia was concluded on 16 January 2012 and the sale was closed on 31 July 2012. NCHZ received […] (7), which was included in the proceeds of the sale. In addition, Via Chem Slovakia agreed to take over private commitments of the NCHZ business incurred during the bankruptcy proceedings, totalling EUR [10-13] million. |
| (17) | According to the conditions of the second tender potential bidders had two options: they could submit a bid either undertaking the ‘Commitments of the Transferee’ specified in Article 1.7 of the tender conditions or without undertaking those commitments. The commitments included the conditions that:
| — | during a period of five years after the acquisition of the NCHZ business, production would be maintained at a level of at least 75 % of 2010 production; |
| — | an investment of at least EUR 11 million would be made in environmental rule compliance measures necessary for the continuation of chemical production; and |
| — | the purchaser would not resell or transfer the NCHZ business during a period of five years in a way that could jeopardise the continuation of its operations. | |
| (18) | The rules of the tender stipulated that, if the highest bid were from a bidder not undertaking the commitments, the highest bidder who did take them over would have the possibility to match the highest bid. According to the information provided by the Slovak Republic, none of the participants in the second tender submitted a bid undertaking the commitments. Therefore, the business of NCHZ was sold to a bidder who did not undertake the commitments. |
| (19) | On 1 August 2012, one day after the conclusion of the transaction between NCHZ in bankruptcy and Via Chem Slovakia, the main business of NCHZ — the chemical division — was sold by Via Chem Slovakia to Fortischem for EUR […]. Fortischem also took over all commitments and contracts related to the chemical division. Most of NCHZ's 1 412 employees were also transferred to Fortischem. Slovakia claims that less than 60 % of the original property of NCHZ was transferred, since no immovable assets were included in the transfer. However, on the basis of the contract, Fortischem is allowed to use the immovable property originally belonging to the transferred business but left in the ownership of Via Chem Slovakia. |
| (20) | Even though all the assets of NCHZ were sold during the bankruptcy proceedings, the proceedings have not yet been finalised (one reason being on-going court cases with respect to certain claims). In 2012, part of the claims of the public creditors, of around EUR 4,0 million, was repaid from the proceeds of the sale of NCHZ's business. However, there are still proceeds from the asset sale that have not yet been distributed. |
2.3. Description of the measures
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