COMMISSION DECISION (EU) 2023/390

of 30 June 2022

on the measures SA.36086 (2021/C) (ex 2019/CC) (ex 2016/C) (ex 2016/NN) implemented by Romania in favour of Oltchim SA

(notified under document C(2022) 4458)

(Only the Romanian version is authentic)

(Text with EEA relevance)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union, and in particular the first subparagraph of Article 108(2) thereof,

Having regard to the Agreement on the European Economic Area, and in particular Article 62(1)(a) thereof,

Having called on interested parties to submit their comments pursuant to the provisions cited above (1) and having regard to their comments,

Whereas:

1.

PROCEDURE

(1) On 17 July 2009, the Romanian authorities notified to the Commission the planned conversion of a public debt of Oltchim SA (‘Oltchim’ or the ‘company’) into equity. On 7 March 2012, by decision in case SA.29041 –

Support measures in favour of Oltchim SA Râmnicu Vâlcea

(2), the Commission concluded that the debt conversion of RON 1 049 million (EUR 231 million) did not entail State aid. That conclusion was based on the firm commitment of the Romanian Government to privatise Oltchim in full, including the whole stake resulting for the public authorities after the debt conversion.

(2) After the failed attempt to privatise Oltchim, the Romanian authorities initiated contacts with the Commission in October 2012 to prepare the formal notification of rescue aid to Oltchim (registered as SA.35558).

(3) In November 2012 the press reported that the Romanian authorities had concluded an agreement with the creditor banks of Oltchim for the financing of the resumption of Oltchim’s production. Against this background, the Commission decided to open an

ex officio

case registered as SA.36086 and by letter of 18 January 2013 requested Romania to provide information.

(4) Following several contacts with the Romanian authorities, by letter dated 8 April 2016 the Commission informed Romania that it had decided to initiate in case SA.36086 the formal investigation procedure provided for by Article 108(2) TFEU (‘the 2016 Decision’). The Commission decision to initiate the procedure was published in the

Official Journal of the European Union

(3). The Commission invited interested parties to submit their comments on the measures concerned.

(5) By letter of 29 July 2016, Romania proposed a modification to the sale process of Oltchim for the purpose of preventing economic continuity between Oltchim and the purchasers of its assets. The Romanian authorities, after having supplied additional information (on 14 September 2016, 4 November 2016 and 5 December 2016), modified the terms of the initial sale process.

(6) Following the above-mentioned exchanges, Oltchim, via its legal representative, provided successive reports on the progress of the sale of (most of) Oltchim’s assets on 27 January 2017, 4 April 2017, 25 July 2017, 15 September 2017, 21 November 2017, 18 January 2018 and 16 July 2018 (4).

(7) During the sale process, a number of third parties intervened and the Romanian authorities provided comments on each of these interventions.

(8) On 17 December 2018, by decision in case SA.36086 –

State aid implemented by Romania for Oltchim SA

(5) (‘the 2018 Decision’), the Commission closed the formal investigation procedure by concluding that three public support measures in favour of Oltchim amounted to unlawful and incompatible State aid. The Romanian authorities were thus ordered to recover them, as follows:

(a) Measure 1, for an amount of ca. EUR 33 million, consisting in the non-enforcement and further accumulation of debts owed by Oltchim to AAAS (6) after Oltchim’s failed privatisation of September 2012;

(b) Measure 2, consisting in the continued unpaid supplies by the Romanian State and by the State-owned undertaking CET Govora (but not by the State-owned undertaking Salrom) to Oltchim, despite the company’s deteriorating financial situation, in the amount to be determined together with Romania during the recovery phase;

(9) By judgment of 15 December 2021 (7), the General Court partially annulled the 2018 Decision: it annulled Article 1 (a) and (c) of the 2018 Decision, as well as Articles 3 and 6 and Article 7(2) in so far that they concern the measures referred to in Article 1(a) and (c) of that Decision (Measures 1 and 3). More specifically, on the one hand, the General Court upheld the 2018 Decision’s finding that Measure 2 was incompatible State aid. On the other hand, the General Court annulled the 2018 Decision as regards Measures 1 and 3, for the following reasons: (i) concerning Measure 1, the General Court held that the Commission had failed to demonstrate the economic advantage following the non-enforcement and further accumulation of the debts at issue; (ii) concerning Measure 3, the General Court held that the Commission had not demonstrated to the requisite legal standard that the debt cancellations at issue entailed State resources or were imputable to the State. That judgment was not appealed and has therefore become final.

(10) This Decision only concerns the measures in Article 1(a) and (c) of the 2018 Decision (referred to as Measures 1 and 3 therein). Given that the 2018 Decision was upheld by the General Court with regard to Measure 2, referred to in its Article 1(b), the Commission will continue to deal with the recovery of aid corresponding to Measure 2, in separate proceedings which are still ongoing under case number SA.36086 (CR/2019).

2.

BACKGROUND AND DESCRIPTION OF THE MEASURES SUBJECT TO INVESTIGATION

2.1.

The beneficiary

(11) Oltchim was one of the largest petrochemical companies in Romania and South-East Europe. The Romanian State had a controlling stake of 54,8 % in the company.

(12) Oltchim mainly produced liquid caustic soda, propylene oxide-polyols, plasticisers and oxo-alcohols. Oltchim was the biggest producer of liquid caustic soda on the European market (EU market share of 41 % in 2015), the only producer of caustic soda beads in Central Europe, as well as the only producer of polyvinyl chloride and polyethers in Romania and third in Europe. Oltchim exported over 74 % of its production, both inside and outside of Europe.

(13) Oltchim was the main industrial employer in Vâlcea (a Romanian region assisted under Article 107(3), point (a) TFEU).

2.2.

Facts

(14) As already mentioned, with the 2018 Decision the Commission closed the formal investigation procedure, which had been initiated by the 2016 Decision, and concluded that Measures 1, 2 and 3 in favour of Oltchim amounted to unlawful and incompatible State aid, which was to be recovered by the Romanian authorities.

(15) By judicial decision dated 8 May 2019, a bankruptcy procedure was opened with regard to Oltchim.

(16) The appointed consortium of liquidators, composed by RomInsolv SPRL & BDO Business Restructuring SPRL and designated on 8 May 2019, was confirmed by the creditors’ assembly by court decision of 26 October 2020.

(17) As a consequence of the launch of the bankruptcy procedure and given that Oltchim’s commercial activity has ceased (as all of Oltchim’s operational assets had already been sold, see recital 31), with the main task of the liquidators being the sale of Oltchim’s remaining assets (i.e. the non-operational ones), both as a matter of law and of fact, Oltchim has already exited the market.

(18) The State aid claims (including recovery interest) were registered in full in Oltchim’s schedule of liabilities on 17 November 2020, thus entailing the provisional implementation by Romania of the 2018 Decision.

(19) According to the latest update submitted by Romania to the Commission on 18 November 2021, the sale process is underway and will continue until the full liquidation of Oltchim’s assets.

(20) The sale process is based on the principles of transparency and competitiveness, and the selling method is by public auction of either bundles of assets or individual assets, in accordance with Article 116 et seq. of Law No 85/2006.

(21) The intention of the Romanian authorities, expressed in their letter of 18 November 2021, is to continue the process until the full liquidation of Oltchim’s assets.

(22) The bankruptcy procedure will be closed upon completion of the sale process of the remaining assets and will result in Oltchim being erased from the trade register.

(23) As regards Measures 1 and 3, by the abovementioned judgment of 15 December 2021 the General Court annulled the 2018 Decision, because it found that the Commission had failed to demonstrate that Measures 1 and 3 fulfilled all the conditions required by Article 107(1) TFEU to classify a measure as State aid. As a consequence, the formal investigation procedure, which had been initiated by the 2016 Decision, is still open as regards Measures 1 and 3. Therefore, in this Decision the Commission needs to take a position on Measures 1 and 3, thereby closing the formal investigation procedure on those two measures.

3.

BANKRUPTCY OF THE BENEFICIARY AND LACK OF ECONOMIC CONTINUITY

(24) The Commission recalls that the system of

ex ante

scrutiny of new aid measures by the Commission provided for in Article 108(3) TFEU is designed to avoid the granting of aid that is incompatible with the internal market (8). As far as recovery of incompatible aid is concerned, the Court has consistently held that the Commission’s power to order Member States to recover aid regarded by the Commission as being incompatible with the internal market is aimed at removing the distortion of competition caused by the competitive advantage which the recipient of the aid has enjoyed, thereby re-establishing the situation that existed before that aid was paid (9). If a company cannot repay the aid, then recovery requires the Member State concerned to bring about the liquidation of that company (10), i.e. the cessation of its activities and the sale of its assets under market conditions.

(25) In other words, the main goal of the system of State aid control is to prevent the granting of incompatible State aid. As a consequence, if competition in the internal market is distorted by the disbursement of unlawful and incompatible State aid, it needs to be ensured that the situation prior to that distortion of competition is restored, if necessary, through the liquidation of the beneficiary.

(26) The Commission notes that the Measures 1, 2 and 3 described in recital 8 concern Oltchim, which is now in bankruptcy and ceased its economic activity completely, without any economic continuity at least until the date of the 2018 Decision (11).

(27) Under Romanian law (12), once a company enters bankruptcy, its assets are sold and the proceeds from the sale are transferred to its creditors, according to the ranking of their claims in the schedule of liabilities. Against this background, the Commission must first establish whether continuing the investigation with respect to Oltchim still serves any purpose. If this is not the case, then it must establish whether there may be economic continuity between Oltchim and any other companies, based on the case-law of the Court of Justice.

(28) The Commission first notes that, on 26 October 2020, the Romanian authorities confirmed the appointed liquidator for Oltchim. Under Romanian law, the company was admitted to a bankruptcy procedure, agreed with the creditors, for the sale of the company’s assets and the termination of its business, with a complete cessation of activities. This procedure is supervised by a judge. Therefore, the Commission considers that the chosen procedure already implies that, at the end of it, Oltchim would cease to exist.

(29) The Commission notes that since the beginning of the bankruptcy procedure, Oltchim ceased all its economic activities (see recital 17).

(30) Additionally, as regards Measure 2, Romania provisionally implemented the 2018 Decision correctly, by duly registering the State aid claim and the corresponding recovery interest, in the schedule of liabilities of the company.

(31) Based on the above, the Commission notes that Oltchim has not carried out any economic activity since 8 May 2019, all of its operational assets – accounting for a majority of the overall assets (ca. 60 % in terms of value) – had been sold already before the beginning of the bankruptcy proceedings, the rest of the assets (non-operational assets) being put out for sale, its staff was laid off, and that it will eventually be erased from the trade register once the bankruptcy procedure has been finalised. Any possible distortion of competition or effect on trade of the Measures 1 and 3 referred to in recital 8 ended once Oltchim ceased its activities.

(32) Against this background, the Commission notes that both objectives of State aid control and of recovery referred to above, i.e. to prevent the granting of incompatible State aid and to ensure that the situation prior to the distortion of competition caused by State aid incompatible with the internal market is restored, are already met. Oltchim is no longer an economic operator active on the market and is already in bankruptcy proceedings, and, due to insufficient funds, State aid claims could be satisfied only partially following the sale of Oltchim’s remaining assets. Therefore, continuing the investigation with respect to Measures 1 and 3 in favour of Oltchim does not serve any purpose.

(33) Regarding the question of potential economic continuity between Oltchim and its successors, according to case-law, the following factors may be taken into account: the scope of the transfer (assets and liabilities, continuity of the workforce, bundled assets), the transfer price, the identity of the owners of the acquiring undertaking and of the original undertaking, the moment at which the transfer was carried out (after the start of the investigation, the initiation of the procedure or the final decision) and the economic logic of the transaction (13).

(34) In its 2018 Decision (recitals 316 et seq.), the Commission analysed each of the five criteria and concluded, in recitals 350 and 351, that there was no economic continuity between Oltchim and either Chimcomplex or DSG, i.e. the two buyers of the majority of Oltchim’s asset bundles at the time of the 2018 Decision. This finding was based on the circumstances that the assets were planned to be sold at their market price, the companies had no economic or corporate link to Oltchim and each of the new owners were to use the assets under different conditions and according to different business models than Oltchim.

(35) Likewise, the Commission considered it highly unlikely that there would be economic continuity between Oltchim and any potential buyer(s) of the remaining assets that were planned for sale through a new tender as described in Romania’s submission of 20 April 2018, since those assets were non-operational, and the scope of activities to be carried out by potential buyer(s) would clearly not encompass Oltchim’s business and the scope of the activities to be carried out using those assets would very likely be different from Oltchim’s.

(36) Since the adoption of the 2018 Decision, no information has reached the Commission that could prompt it to change its view on economic discontinuity. The latest information received was the registration of the State aid claims in the schedule of liabilities in November 2020, and the most recent update on the bankruptcy sent by Romania by letter of 18 November 2021. The Commission will still follow up the bankruptcy of Oltchim to ensure that the claim relating to Measure 2 is correctly implemented and the company is definitively liquidated.

(37) In this context, given the inevitable liquidation of Oltchim without any indications of economic continuity, the formal investigation procedure on the still outstanding measures (Measures 1 and 3) granted in favour of Oltchim, initiated under the first subparagraph of Article 108(2) TFEU, no longer serves any purpose,

HAS ADOPTED THIS DECISION:

Article 1

The procedure initiated on 8 April 2016 under the first subparagraph of Article 108(2) of the Treaty on the Functioning of the European Union in case SA.36086 in respect of Oltchim, is hereby terminated with regard to Measures 1 and 3 as referred to in the 2018 Decision.

Article 2

This Decision is addressed to Romania.

Done at Brussels, 30 June 2022.

For the Commission

Margrethe VESTAGER

Member of the Commission

(1)

OJ C 284, 5.8.2016, p. 7

(2)

OJ L 148, 1.6.2013, p. 33

(3)

OJ C 284, 5.8.2016, p. 7

(4) There were seven reports to the Commission’s Directorate-General for Competition on Oltchim’s asset sale, each covering a different period of the sale process as follows: the first report (July 2016 – 23 January 2017), the second report (23 January – 30 March 2017), the third report (30 March – 21 July 2017), the fourth report (21 July – 15 September 2017), the fifth report (16 September – 17 November 2017), the sixth report (17 November 2017 – 18 January 2018) and the seventh report (18 January 2018 – 16 July 2018).

(5)

OJ L 181, 5.7.2019, p. 13

(6) AAAS is the Romanian Privatisation Agency.

(7) Judgment of the General Court of 15 December 2021,

Oltchim SA v European Commission

, T-565/19, ECLI:EU:T:2021:904.

(8) Judgment of the Court of Justice of 3 March 2020,

Vodafone Magyarország

, C-75/18, ECLI:EU:C:2020:139, paragraph 19.

(9) Judgment of the Court of Justice of 11 December 2012,

Commission v Spain (‘Magefesa II’)

, C-610/10, ECLI:EU:C:2012:781, paragraph 105.

(10) Judgment of the Court of Justice of 17 January 2018,

Commission v Greece (‘United Textiles’)

, C-363/16, ECLI:EU:C:2018:12, paragraph 36.

(11) Recitals 316-351 of the 2018 Decision.

(12) Bankruptcy Law No 85/2006.

(13) Judgment of the General Court of 24 September 2019,

Fortischem a.s. v. Commission

, T-121/15, ECLI:EU:T:2019:684, paragraph 208.