2003/45/EC: Commission Decision of 5 June 2002 on the measures to restructure and privatise Koninklijke Schelde Groep implemented by the Netherlands (Text with EEA relevance) (notified under document number C(2002) 2007)

• Articles: 7

Article 1

The privatisation agreement between the Netherlands and Damen Shipyards Group (Damen) does not contain State aid pursuant to Article 87(1) of the EC Treaty and Article 61(1) of the EEA Agreement in favour of Damen.

The measures in support of the restructuring of Koninklijke Schelde Groep ("KSG") constitute State aid pursuant to Article 87(1) of the EC Treaty and Article 61(1) of the EEA Agreement in favour of KSG.

Article 2

The State aid which the Netherlands has implemented in favour of KSG, in so far as it can be attributed to activities that are not caught by the Shipbuilding Regulation, is compatible with the common market.

Article 3

The State aid of EUR 4 million which the Netherlands has implemented in favour of KSG, in so far as it can be attributed to activities not caught by Regulation (EC) No 1540/98, is incompatible with the common market.

Article 4

1. The Netherlands shall take all necessary measures to recover from the recipient the aid referred to in Article 3 and unlawfully made available to the recipient.

2. Recovery shall be effected without delay and in accordance with the procedures of national law provided that they allow the immediate and effective execution of the Decision. The aid to be recovered shall include interest from the date on which it was at the disposal of the recipient until the date of its recovery. Interest shall be calculated on the basis of the reference rate used for calculating the grant equivalent of regional aid.

Article 5

The Netherlands shall submit an annual report on implementation of the restructuring plan for the period until 2007, or until a later date if the implementation of the restructuring is delayed.

Article 6

The Netherlands shall inform the Commission, within two months of notification of this Decision, of the measures taken to comply with it.

Article 7

This Decision is addressed to Kingdom of the Netherlands.

Done at Brussels, 5 June 2002.

For the Commission

Mario Monti

Member of the Commission

(1) OJ C 254, 13.9.2001, p. 6.

(2) See footnote 1.

(3) http://www.schelde.com.

(4) OJ L 202, 18.7.1998, p. 1.

(5) http://www.damen.nl.

(6) The loan was provided by Nederlandse Investeringsbank and was financed in part by the Ministry of Economic Affairs (NLG 25 million (EUR 11,3 million)) and the Ministry of Defence (NLG 10 million (EUR 4,5 million)).

(7) Delay has occurred owing to the uncertainty surrounding the navy's equipment policy. In the summer of 1998 the new government decided on a substantial cut in the defence budget. It was decided to prepare a Cabinet paper setting out a framework within which this cut could be achieved. The paper was finalised in January 1999 and forms the basis of the navy's equipment policy until 2010.

(8) This is the net value of the loan. The gross value was EUR 38,2 million, which was partially offset by a related corporate tax claim of EUR 6,4 million.

(9) An independent expert has confirmed that the figure of NLG 100 million is the most realistic.

(10) OJ C 288, 9.10.1999, p. 2.

(11) See footnote 1.

(12) Defensienota 2000, Lower House of the Dutch Parliament, 1999-2000, 26900, Nos 1-2.

(13) These additional costs are caused by (i) creditors who are prepared to deliver basic products for the frigates only on condition that the government also pays the debts on other contracts; (ii) increased personnel costs to prevent employees from leaving; (iii) additional costs after delivery of the frigates; (iv) a bankruptcy scenario, which would entail at least one year's delay, resulting in additional costs in related supply contracts for the frigates and higher maintenance costs for the old frigates.

(14) Business secret.

(15) Article 1 of Council Regulation (EC) No 1540/98 of 29 June 1998.

(16) Yacht construction will not be able to absorb capacity available elsewhere in KSG because it is a separate business requiring different skills and facilities.

(17) This is based on the assumption that costs are evenly spread over the 2002-2007 period. Neither Damen nor the Netherlands has provided a detailed schedule.

(18) The Commission would, however, not take into account the guarantees that the government would have to provide to suppliers. Being the customer, such guarantees do not constitute a cost that would be additional to signing the original contract. Nevertheless, it is clear that the cost of privatisation was below the cost of bankruptcy.

(19) Joined Cases C-278/92, C-279/92 and C-280/92 Spain v Commission [1994] ECR 4103.

(20) Since the rescue aid was granted in full in the period before the entry into force of the 1999 rescue and restructuring guidelines, the Commission has assessed it in the light of the 1994 Community guidelines for rescuing and restructuring firms in difficulty (OJ C 368, 23.12.1994, p. 12). The extension of those guidelines until the entry in force of the new guidelines was published in 1998 (OJ C 74, 10.3.1998, p. 31).

(21) Since a commercial interest rate applied to the 1998 loan, the aid component on the occasion of the transfer to Damen still amounted to its nominal value.

(22) Section 6.6 assesses whether or not the negotiations between the Netherlands and Damen have ensured a proper "market price".

(23) (EUR 4,9 million is directly attributable to commercial shipbuilding activities. An amount of EUR 9 million concerns both commercial and military activities. The share attributed to commercial shipbuilding was calculated on the basis of commercial production as a percentage of total production over the period 1995-1999. The amount of (EUR 7,1 million is discounted to end-2000.

(24) Turnover forecasts were included in the comments by the Netherlands and by Damen since they had been incorporated into the expert's study on the value of KSG at the time of privatisation. The figures are based on Damen's expectations at the time of the due-diligence investigation. The Commission considers the scenario of intensive yacht construction to be the most appropriate for this calculation, something which has been confirmed by Damen. In the Commission's view, the period 2002-2007 is the most appropriate: although the relocation began as early as 2000, its effects in terms of capacity utilisation were not felt until 2002. Figures for the post-2007 period are not available and would not in any case be reliable. The relocation affects yacht construction only to the extent that the workload exceeds the capacity of the dock refurbished for this purpose (the corresponding turnover is estimated at NLG [...] million, which is the figure in the order book for that year and which will be realised in full in the refurbished dock, whereas the somewhat higher 2004 figure will partly be realised in the "old" military dock). On the basis of those assumptions, it is calculated that "topping-up orders" constitute [...] % of total expected turnover that is affected by the relocation. It is true that such orders may also comprise naval shipbuilding for third countries, which implies that, as a percentage of total turnover affected by the relocation, commercial shipbuilding caught by the Shipbuilding Regulation should be lower. The current order book also suggests that commercial shipbuilding activities were more limited than expected at the time of privatisation. On the other hand, after 2007, commercial shipbuilding caught by the Shipbuilding Regulation may increase, in particular when military orders are limited. The Commission therefore regards 8 % as the best estimate available.

(25) OJ L 148, 6.6.1997, p. 3.