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The aid to Hilaturas y Tejidos Andaluces SA in the form of capital contributions of Pta 7 100 million over the period 1986 to 1988 was granted illegally, since it was granted by the Spanish Government in breach of the procedural rules established in Article 93 (3) of the EEC Treaty.
Nevertheless, the said aid meets the conditions which must be fulfilled in order for the Article 92 (3) (c) exception to apply, for which reason it is compatible with the common market.
The State aid element of Pta 4 200 million contained in the capital contribution provided by 'Patrimonio del Estado' to Hytasa before its privatization in July 1990 is illegal, since it was awarded by the Spanish Government in violation of the provisions of Article 93 (3).
Furthermore, the said aid element does not meet any of the conditions which must be fulfilled in order for one of the exceptions of Article 92 (2) and (3) to apply, for which reason it is incompatible with the common market.
The incompatible State aid element shall be withdrawn by way of recovery. Accordingly, 'Patrimonio del Estado' shall recover Pta 4 200 million from Mediterráneio Técnica Textil SA, (formerly Hytasa SA).
The aid element shall be recovered in accordance with the procedures and provisions of national law, in particular those relating to interest on arrears payable on State liabilities, with interest starting to run on the date on which the illegal aid was granted.
Any agreement providing for an indemnity for the buyers by the State or the 'Patrimonio del Estado' for an obligation imposed by this Decision to reimburse aid shall not be carried out.
The Spanish Government shall inform the Commission within two months of the date of notification of this Decision of the measures taken to comply herewith.
The Decision is addressed to the Kingdom of Spain. Done at Brussels, 25 March 1992. For the Commission
Leon BRITTAN
Vice-President
(1) OJ No C 320, 20. 12. 1990, p. 14. (2) OJ No C 273, 18. 10. 1991, p. 2. (3) [1984] ECR 3809. (4) [1986] ECR 2263. (5) [1986] ECR 2321. (6) [1980] ECR 2688. (7) [1973] ECR 611. (8) [1973] ECR 1471. (9) [1977] ECR 595. (10) [1990] ECR I-307. (11) OJ No C 31, 3. 2. 1979, p. 9. (12) [1973] ECR 813. (13) [1987] ECR 901. (14) [1990] ECR I-959. (15) [1989] ECR 175.
(1) of the EEC Treaty provides that aid of the type described therein is in principle incompatible with the common market.
The exceptions provided for in Article 92 (2) EEC are not applicable in this case because of the nature of the aid, not directed towards the attainment of such objectives.
(3) of the EEC Treaty lists aid which may be compatible with the common market. Compatibility with the Treaty must be determined in the context of the Community as a whole and not in that of a single Member State. In order to ensure the proper functioning of the common market, and having regard to the principle embodied in Article 3 (f), the exceptions provided for in Article 92 (3) must be construed narrowly when any aid scheme or individual aid award is scrutinized. In particular, they may be invoked only when the Commission is satisfied that, without the aid, market forces alone would be insufficient to guide recipients towards patterns of behaviour that would serve one of the objectives of the said exceptions.
Applying the exceptions to cases which do not contribute to such objectives or where the aid is not necessary for those purposes would amount to conferring advantages on the industries or firms of certain Member States, whose financial position would be artificially strengthened, thereby affecting trade between Member States and distorting competition without any justification based on the common interest, as referred to in Article 92 (3) of the EEC Treaty.
The aid to Hytasa in the form of capital contributions of Pta 7 100 million over the period 1986 to 1988 represented a big effort to create the basis for a definitive viable restructuring of the company. This is provided by the fact that is was mainly used in practice during that period to finance rationalization investments amounting to over Pta 5 000 million, as well as dismissals costing over Pta 700 million. It should also be noted that, notwithstanding the investments carried out, Hytasa kept the actual production for the period in question well below its capacity ceilings. On the other hand the Commission can also share the Spanish authorities' view that the capital contributions in 1986 and 1987 were in response to circumstances which developed prior to Spain's accession to the Communities.
The Commission considers that this judgment can also be extended to the contribution that took place in 1988. Preaccession industrial policy in Spain in respect of public companies was sometimes based on principles radically different from those inspiring the competition policy under the EEC Treaty. At that time, certain loss-making public companies were run according to decisions opposed to sound managerial principles and were kept artificially in business thanks to the financial assistance of the State. After the accession of Spain to the Communities, these companies have been forced to adapt themselves to an environment of fair competition. The aids to Hytasa here in question were mainly aiming at facilitating that adaptation. This fact confirms that this aid was not used to artificially relaunch the activities of the company, which would have produced an unacceptable negative for the sector; in the light of the foregoing considerations, the Commission has reached the conclusion that the capital contributions of Pta 7 100 million in 1986 to 1988 can be considered as compatible with the common market pursuant to the exception provided for in Article 92 (3) (c) of the EEC Treaty, for they contributed to implement genuine restructuring for the activities of the company, without having unacceptable effects contrary to the common interest.
In respect of the State aid element to Hytasa of Pta 4 200 million contained in the capital contribution made just before the company's sale, Article 92 (3) (a) lays down an exception for aid that promotes the development of areas where the standard of living is abnormally low or where there is serious underemployment. In this respect, although Hytasa is situated in Seville, which is an assisted area pursuant to Article 92 (3) (a) qualifying for regional aid, the aid measure to Hytasa in question was not granted under the corresponding regional aid schemes but on the basis of ad hoc decisions of the Spanish Government, taking the form of discretionary capital contributions.
Even if the aid in question have were to be considered as regional, it would not however be eligible for compatibility under Article 92 (3) (a), because aid granted pursuant to the provisions of that Article must contribute to the long-term development of the region - this notably means in this case that the aid must at least serve for restoring the company's viability, an objective not attained for Hytasa in the light of the information submitted so far to the Commission (this aspect was already discussed in part IV above) - without having unacceptable negative effects on competition conditions within the Community.
On the other hand, even though the Pta 4 200 million aid element was explicitly granted by the State on the condition that part of it be used by Hytasa in investments - a requisite feature for aid to facilitate the development of certain economic areas as established in the 1979 Commission communication (11) on the principles of coordination of regional aid systems - this aid to Hytasa cannot be considered automatically as compatible since, in view that its grant was made outside the scope of aid regimes approved by the Commission, the Commission must assess its compatibility on its own merits verifying, amongst other aspects, both that the aided investment projects are in line with the interest of the Community for the sector concerned and that they contribute to a sound restructuring of the company (both aspects are discussed further below).
In any case, the aid of Pta 4 200 million largely surpasses the level of investments of Pta 2 500 million foreseen by the company, a situation which is in any case unacceptable for investment aid.
As regards the exceptions provided for in Article 92 (3) (b) the aid measures in question were not intended to nor have the features of a project of common interest or of a project likely to remedy a serious disturbance in the Spanish economy. Moreover, the Spanish authorities have not invoked this exception in their observations to the Commission.
As regards the exception for in Article 92 (3) (c) of the EEC Treaty, for aid to facilitate the development of certain economic activities, where such aid does not adversely affect trading conditions to an extent contrary to the common interest, it should firstly be noted that the aid to Hytasa falls under the category of aid to companies in difficulties, as both the company's financial position and financial record have always been precarious. Aid to firms in difficulties carries the greatest risk of transfering unemployment and industrial problems from one Member State to another; it acts as a means of preserving the status quo by preventing forces at work in the market economy from their normal consequences in terms of disappearance of uncompetitive firms in their process of adaptation to changing conditions in competition. For this reason the Commission takes a strict approach in assessing the compatibility of aid for restructuring firms in difficulty. In particular, the Commission requires that such public intervention be strictly conditional on the implementation of a sound restructuring or conversion programme capable of restoring the long-term viability of the beneficiary, that must also contain a compensatory justification for the aid in the form of a contribution by the beneficiary over and above the normal play of market forces altered by the aid to the achievement of Community objectives as established in Article 92 (3) of the EEC Treaty.
In this respect, as regards aid in the textile sector, the Commission worked out with the help of national experts a number of criteria to guide the Governments of the Member States on the interventions they might possibly wish to make therein. These criteria were defined in the Community guidelines of 1971 and 1977 on aid to the textile and clothing sectors which are still in force. The major principles set out therein are that aid should be such as to assist the adaptation of the industry by eliminating excess capacity, by facilitating joint R & D activities and by assisting structural changes. Genuine restructuring and adaptation is a prerequisite under the guidelines for the granting of any specific funds for investment purposes. In any case, aid should not simply seek to maintain uncompetitive position.
In the light of the foregoing considerations, it should be noted that the State aid element to Hytasa of Pta 4 000 million will produce its effects on competition mainly in future, as it will contribute to the realization by the company of future investments within the framework of the restructuring plan presented by the buyers. In these circumstances the Commission must verify carefully the characteristics of the planned restructuring programme. In connectio with this, it should be remarked that the Commission is suitably placed not only to anticipate and adjust the potential negative effects that this aid element could have on competition, but also to correct the negative effects that the increase in capacity caused by the aid in 1986 to 1988 could have in future if Hytasa relaunches artificially its activities.
In this respect, after detailed examination of the initial restructuring programme for Hytasa and of its revised version, the Commission noted that even if some reductions in the productions and sale of intermediate goods are foreseen, they are largely offset by the increases in the manufacture and sale of finished products. As a consequence the Commission considers that the restructuring plan of Hytasa does not provide the commitment for reducing its activities that could be regarded as a compensatory justification for aid.
Moreover, since no programme for the disposal of productive assets is contained in the plan, nothing could prevent Hytasa in the future from easily re-expanding its activities by having recourse to its idle capacity and thus enjoying more favourable conditions than other competitors. In this respect, it should be noted that in the future the idle capacity rates of Hytasa in spinning and weaving operations, calculated by comparing the installed capacity before the privatization with the planned productions, will be around 50 %.
In order to complete the information on the restructuring plan of Hytasa on 1 August 1991 the Spanish authorities submitted detailed papers on the initiatives taken by the company to reduce its workforce. The dismissals already carried out at an average cost of Pta 4,5 million per head concern 160 workers who were mainly close to the retiring age; moreover up to about 100 additional dismissals have been programmed, mainly due to incapacity to work of the employees; at the same time shifts of temporary lay-offs for an average of 210 workers over a period of four-and-a-half months have been set up.
The abovementioned reductions totalling about 260 do not seem to be able to fully meet the target of a stable workforce of 720 by 1992 contained in the restructuring plan; on the contrary the resort to temporary lay-offs - this possibility was in principle excluded by a clause of the sale contract - allows the company to keep its productive capacity stand by for possible opportunities to expand its sales and its market share.
This personnel policy is at odds with the possibility that the restructuring plan of Hytasa is a compensatory justification for the aid received.
The Spanish authorities not having submitted to date any new plan, the Commission is obliged to conclude that the State aid element to Hytasa of Pta 4 200 million involved in the capital contribution before the company's sale has to be considered as incompatible with the common market, as it affects trading conditions within the Community to an extent contrary to the common interest, for it does not contribute to a genuine restructuring fully ensuring the viability of the company.
VII
In case of aid which is incompatible with the common market, the Commission, making use of a possibility given to it by the Court of Justice in its Judgment in Case 70/72 (Kohlegesetz) (12), confirmed in Case 310/85 (Deufil) (13), can require Member States to recover from recipients aid granted illegally.
Consequently, Hytasa must repay the Pta 4 200 million illegally received.
Repayment must be made in accordance with the procedure and provisions of Spanish law, in particular those relating to interest on arrears on State liabilities, with interest starting to run on the date on which the illegal aid was granted. This measure is necessary in order to restore the status quo by removing all the financial benefit which the firm receiving the unlawful aid has improperly enjoyed since the date on which the aid was paid (see Judgment in Case 142/87 (Tubemeuse) (14)).
The Commission recalls that 'the relevant provisions of national law must be applied in such a way that the recovery required by Community law is not rendered practically' (Judgment in Case 94/87 (Commission v. Germany) (15), ground 12).
The sales contract provides that any important financial events occurring in consequence of acts prior to the sale of the company are to be borne by the seller. This clause would allow the State to indemnity the buyer for any reimbursement of aid imposed by the Commission deciding that part or whole of the aid is incompatible. This would clearly neutralize the essence of the Commission decision and would in particular perpetuate the incompatible distortion of competition produced by the aid. This clause and such provisions of national law constitute therefore a means of getting around the rules of the Treaty on aid; it is therefore illegal under Article 92 (1) and, by virtue of the principle of the primacy of Community law, may not be carried out,
HAS ADOPTED THIS DECISION:
92/317/EEC: Commission Decision of 25 March 1992 on State aid in favour of Hilaturas y Tejidos Andaluces SA, now called Mediterráneo Técnica Textil SA and its buyer (Only the Spanish text is authentic) (EUR-Lex). Retrieved via LawPlayer, https://lawplayer.com/eu/act/31992D0317
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