2002/467/EC: Commission decision of 31 January 2001 on State aid implemented by Spain for the Fesa-Enfersa group (Fertiberia) (Text with EEA relevance.) (notified under document number C(2001) 324)

• Articles: 2

Article 1

The restructuring aid which Spain has implemented for the Fesa-Enfersa group (now "Fertiberia SA"), amounting to ESP 25113 million, is compatible with the common market within the meaning of Article 87(3)(c) of the Treaty.

Article 2

This Decision is addressed to the Kingdom of Spain.

Done at Brussels, 31 January 2001.

For the Commission

Mario Monti

Member of the Commission

(1) OJ L 83, 27.3.1999, p. 1.

(2) OJ C 315, 4.11.2000, p. 11.

(3) Decision of 20 July 1999 in Case NN62/99 (OJ C 62, 4.3.2000, p. 18). See also http://europa.eu.int/comm/secretariat_general/sgb/state_aids/industrie/nn062-99.pdf.

(4) See in particular the ninth paragraph of point 2.2 of the Decision of 20 July 1999 cited in footnote 3.

(5) See footnote 2.

(6) OJ C 213, 19.8.1992, p. 2.

(7) This section is based on research undertaken by the European Fertiliser Manufacturers Association (EFMA). See in particular the studies Forecast of Food, Farming and Fertiliser Use in the European Union 1999 to 2009 and The Fertiliser Industry of the European Union, which may be consulted on the EFMA's website www.efma.org/publications/.

(8) EFMA Annual Review 1999-2000, p. 9.

(9) See these companies' websites: http://www.hydro.com and http://www.kemira.com.

(10) This was 25 % of the annual cash flow exceeding ESP 3000 million, with a maximum limit of 5 % of the annual cash flow.

(11) 15,55 % of profits before taxes.

(12) Under Spanish bankruptcy law, the "abstention right" is the privilege enjoyed by the State to opt not to be bound by the composition with creditors with regard to some of its claims.

(13) OJ C 288, 9.10.1999, p. 2. Under point 101 of these new guidelines, the Commission will examine the compatibility with the common market of any rescue or restructuring aid granted without its authorisation on the basis of the new guidelines if some or all of the aid is granted after their publication in the Official Journal of the European Communities and on the basis of the guidelines in force at the time the aid is granted in all other cases. Since all the aid under examination in this case was granted before such publication, the applicable version is the Community guidelines on State aid for rescuing and restructuring firms in difficulty published in OJ C 368, 23.12.1994, p. 12. As some of the aid measures were granted before the latter guidelines were published, those measures must be assessed on the basis of the Commission's policy on State aid for rescuing and restructuring firms in difficulty as published in 1979 in the Eighth Report on Competition Policy.

(14) Spanish Official Gazette No 234, 29.9.1988, p. 28406.

(15) Spanish Official Gazette No 312, 30.12.1995, p. 37519.

(16) See footnote 13.

(17) See Accounting harmonisation in the European Communities. Problems of applying the Fourth Directive on the annual accounts of limited companies, Luxembourg, 1990, page 14. See also the definition of subordinated liabilities in Article 21 of Council Directive 86/635/EEC of 8 December 1986 on the annual accounts and consolidated accounts of banks and other financial institutions (OJ L 372, 31.12.1986, p. 1).

(18) See document XV/7009/97-EN, point 2.3.3, page 5.

(19) See footnote 3.

(20) Judgment of 12 October 2000 in Case C-480/98 Spain v Commission, not yet published. A provisional non-authentic version of the judgement can be found on the Court's website at http://curia.eu.int.

(21) Judgment of 29 April 1999 in Case C-342/96 Spain v Commission [1999] ECR I-2459.

(22) Judgment of 29 June 1999 in Case C-256/97 Déménagements-Manutention Transport SA (DMT) [1999] ECR I-3913.

(23) See, for this and other references to the EFMA, the organisation's website: www.efma.org.

(24) For further details see point II.3 above.

(25) See footnote 23.

(26) The Commission draws attention in this connection to the "one time, last time" condition as laid down in the new version of the restructuring aid guidelines.

(27) For example, in the case of Grande Paroisse (Elf Aquitaine), the ratio was 0,48 in 1997 and 0,44 in 1998.