This Decision is addressed to the Kingdom of Spain.
Done at Brussels, 19 February 2003.
For the Commission
Mario Monti
Member of the Commission
(1) OJ C 399, 1.12.2001, p. 6 and OJ C 164, 10.7.2002, p. 6.
(2) OJ L 107, 30.4.1996, p. 4.
(3) The EU Textile and Clothing Sector 2000 OETH, May 2000.
(4) The 2000 annual report states that one of the main reasons for withdrawal of an application is non-compliance with these sector-based priorities (p. 14).
(5) The houses at Prats de Lluçanès were valued at ESP 163 million (EUR 0,98 million) in July 2001. No previous valuation of the same properties exists.
(6) The Spanish authorities have provided copies of the more recent agreements, whereas the company's financial statements provide information on earlier agreements. Moreover, further agreements are mentioned in the statement of affairs for the suspension of payments as of 10 November 2000. It should be noted that any new agreement with the same authority covers new debt together with accumulated previous debt.
(7) The Spanish authorities have provided copies of the more recent agreements, whereas the company's financial statements provide information on earlier agreements. Moreover, further agreements are mentioned in the statement of affairs for the suspension of payments as of 10 November 2000. It should be noted that any new agreement with the same authority covers new debt together with accumulated previous debt.
(8) As a matter of fact, there were two agreements in 1992. The first agreement concerned the industrial sites at Roda de Ter and Sant Bartomeu del Grau and a number of dwellings in those localities. The second carries the same date, but Spain has not provided a copy of the annex in which the properties are detailed. Some further dwellings may also have been included in the second mortgage, but the bulk of that mortgage most likely consisted of the industrial site at Lluçanès. This is confirmed by the fact that its value compared to the other value roughly corresponds to the value of the Lluçanès site in 2001 compared to the value of the other two sites in the 2001 valuation. The 1995 annual accounts mentioned that the debt to the Tax Agency was secured by a mortgage on all three industrial sites. This again confirms the likelihood that the second agreement concerned the industrial site at Lluçanès, even though the mortgages on this site and on the site at Sant Bartomeu del Grau were not formalised.
(9) The statement of affairs included in the Court decision shows assets totalling ESP 32086 million (EUR 192,84 million) and liabilities totalling ESP 22088 million (EUR 132,75 million), giving an asset surplus of ESP 9998 million (EUR 60,09 million). For a company to qualify for the suspension of payments procedure, its assets must exceed its liabilities. This may induce companies to overvalue their assets. It should be noted that, according to the information available, the value of Puigneró's assets increased by approximately 67 % between 1992 and 2001. There is no doubt that a company's properties may increase in value, but some deterioration will also inevitably take place in buildings over nine years, especially where the company has been facing financial difficulties and is unlikely to have any spare cash for major investments to improve the condition and value of its assets. Consequently, the valuation would not seem to have been established on prudential principles. However, neither can the possibility be ruled out that the valuation may reflect a fair market value.
(10) Exact data on earlier years are not available, but it appears from the 1995 annual report that the loss of equity must have taken place before 1994. The Commission notes that the 1995 annual report mentions losses that can be offset for tax purposes incurred during the period up to and including 1994 for a total amount of ESP 1813,5 million (EUR 10899439), while 1994 showed a modest positive result.
(11) The Commission furthermore notes that in response to Parliamentary questions the Regional Government replied two days before the 2000 loan was formalised that it planned to grant the loan through the ICF.
(12) The property register shows mortgages in favour of Fondo de Garantía de Depósitos en Cooperativas de Crédito (maximum ESP 1200 million, debt in 1995 still ESP 495,4 million) and Caixa d'Estalvis i Pensions de Barcelona (maximum ESP 886 million). The 1995 annual report also mentions two loans representing a total burden of ESP 500 million, under which ESP 397,9 million was still owed in 1995. It is not clear, however, where the smaller of these last two is registered in the property register.
(13) Commission Decision of 14 October 1998 concerning aid granted by Spain to companies in the Magefesa group and their successors (notified under document number C(1998) 3211) (OJ L 198, 30.7.1999, pp.15-27).
(14) Case C-480/98 Spain v Commission [2000] ECR I-8717.
(15) Advocate General Jacobs stated in his opinion of 24 September 1998 in Case C-256/97 DMT that it was clear that, in certain circumstances, continued and generous tolerance of late payment of social security contributions could confer an appreciable commercial advantage on the recipient undertaking and in extreme cases be tantamount to relief from those contributions (paragraph 33).
(16) Case C-342/96 Tubacex [1999] ECR I-2459.
(17) Case C-256/97 Déménagement-Manutention Transport [1999] ECR I-3913.
(18) The property at Sant Feliu de Guíxols may actually have been added as security to the 1996 agreement, rather than the 1998 agreement.
(19) OJ C 368, 23.12.1994, p. 12 and OJ C 288, 9.10.1999, p. 2. Point 101 of the 1999 guidelines explain which guidelines apply in principle to which measures. However, as the differences between the two sets of guidelines have hardly any impact on the assessment of the measures, the Commission refers in the following assessment only to the 1999 guidelines. Where the distinction is significant, the applicable guidelines are indicated. The 1994 guidelines (OJ C 368, 23.12.1994, p. 12) codified the approach that the Commission had been taking for a long time. The 1993 loan can therefore also be assessed under the same rules.
(20) OJ L 83, 27.3.1999, p. 1.
