INHALT

Commission Decision (EU) 2019/1144 of 17 December 2018 on the State aid SA.36086 (2016/C) (ex 2016/NN) implemented by Romania for Oltchim SA (notified under document C(2018) 8592) (Text with EEA relevance.)

COMMISSION DECISION (EU) 2019/1144
of 17 December 2018
on the State aid SA.36086 (2016/C) (ex 2016/NN) implemented by Romania for Oltchim SA
(notified under document C(2018) 8592)
(Only the Romanian version is authentic)
(Text with EEA relevance)
1.
PROCEDURE
2.
BACKGROUND
2.1.
Beneficiary
2.2.
Facts
2.2.1.
The public debt of Oltchim and failed privatisation attempts (1995-2011)
2.2.2.
The 2012 Commission decision
2.2.3.
Oltchim's situation after the failed privatisation of 22 September 2012
2.2.4.
Oltchim's insolvency proceedings as from 30 January 2013
2.2.4.1.
The legal framework: the Romanian insolvency law
2.2.4.2.
Preparation and approval of Oltchim's Reorganisation Plan
2.2.4.3.
Implementation of the Reorganisation Plan
3.
THE COMMISSION DECISION TO OPEN THE FORMAL INVESTIGATION PROCEDURE
4.
COMMENTS ON THE OPENING DECISION
4.1.
Romania's submissions
4.1.1.
Romania's comments regarding Measure 1
4.1.2.
Romania's comments regarding Measure 2
4.1.3.
Romania's comments regarding Measure 3
4.2.
Comments from interested third parties
4.2.1.
Rominsolv and BDO (‘R/BDO’, the official receivers of Oltchim in the insolvency proceedings)
4.2.2.
Electrica
4.2.3.
Confidential [anonymous] interested third party
4.2.4.
PCC
4.2.4.1.
PCC's comments regarding Measure 1
4.2.4.2.
PCC's comments regarding Measure 2
4.2.4.3.
PCC's comments regarding Measure 3
4.3.
Comments from Romania on the observations from third parties
(53)
4.3.1.
Romania's further comments regarding Measure 1
4.3.2.
Romania's further comments regarding Measure 2
4.3.3.
Romania's further comments regarding Measure 3
5.
SALE PROCESS OF OLTCHIM'S ASSETS
6.
ASSESSMENT OF THE AID
6.1.
Existence of State aid within the meaning of Article 107(1) TFEU
6.1.1.
State origin (imputability and use of State resources)
6.1.1.1.
Measure 1: AAAS — the non-enforcement and further accumulation of debts between September 2012 and January 2013
6.1.1.2.
Measure 2: CET Govora and Salrom — support to the operations of Oltchim in the form of continued unpaid supplies since September 2012
6.1.1.3.
Measure 3: AAAS and SoEs (in particular Electrica, Salrom, CET Govora, National Water Administration) — the 2015 debt cancellation under the Reorganisation Plan
6.1.2.
Selective economic advantage
6.1.2.1.
Measure 1: AAAS — the non-enforcement and further accumulation of debts since September 2012
6.1.2.2.
Measure 2: CET Govora and Salrom — support to the operations of Oltchim in the form of continued unpaid supplies since September 2012
6.1.2.3.
Measure 3: AAAS and SoEs (in particular Electrica, Salrom, CET Govora, National Water Administration) — the 2015 debt cancellation under the Reorganisation Plan
(A)
The comparison made by AAAS and SoEs between the Reorganisation Plan and the liquidation scenario was flawed and based on erroneous considerations that a MEO would not have made
(B)
The votes of the State creditors cannot not be considered as pari passu
(C)
A diligent counterfactual assessment based on contemporaneous evidence would have led a market creditor to oppose the Plan
6.1.2.4.
Overall assessment of economic advantage and State imputability of Measures 1, 2 and 3
6.1.3.
Distortion of competition and effect on trade between Member States
6.1.4.
Conclusion on the existence of the aid
6.1.5.
Legality of the aid
6.2.
Compatibility of the aid and legal basis for the assessment
6.3.
Recovery
6.4.
The issue of economic continuity in the sale of Oltchim
(145)
6.4.1.
Scope of the assets sold under the revised Reorganisation Plan
6.4.2.
The sale price
6.4.3.
The identity of the buyer(s)
6.4.4.
The moment of the sale
6.4.5.
The economic logic of the operation
6.4.6.
Conclusion on the economic (dis)continuity of Oltchim through the sale of assets to Chimcomplex, DSG and other potential buyers for the remaining unsold bundles
7.
CONCLUSION
Article 1
Article 2
Article 3
Article 4
Article 5
Article 6
Article 7
TECHNICAL ANNEX
MARKET ECONOMY CREDITOR TEST RELATING THE CHOICE BETWEEN THE PROPOSED REORGANISATION PLAN AND LIQUIDATION PROCEDURE
1.
Gross proceeds and costs associated in the Reorganisation plan and in the liquidation procedure
1.1.
Gross proceeds from the liquidation and reorganisation plan
1.1.1.
Gross proceeds and duration of the liquidation procedure
1.1.2.
Gross proceeds from the reorganisation plan
Reference scenario
Pessimistic scenario
Optimistic scenario
2.
Costs to be deducted from the proceeds of the sale of Oltchim SPV or of Oltchim SA's liquidation procedure
3.
Calculation of the net proceeds for each creditors in the Reorganisation plan and in the liquidation procedure
Liquidation procedure
Reorganisation Plan
Alternative assessment of proceeds in the Reorganisation plan —
Dividend Discount Model
4.
Results of the MEO test for each category of creditors and sensitivity analysis
Secured creditors
Budgetary creditors
Unsecured creditors
5.
Conclusion of the market economy creditor test