INHALT

Commission Decision (EU) 2016/2069 of 1 October 2014 concerning measures SA.14093 (C76/2002) implemented by Belgium in favour of Brussels South Charleroi Airport and Ryanair (notified under document C(2014) 6849) (Text with EEA relevance )

COMMISSION DECISION (EU) 2016/2069
of 1 October 2014
concerning measures SA.14093 (C76/2002) implemented by Belgium in favour of Brussels South Charleroi Airport and Ryanair
(notified under document C(2014) 6849)
(Only the French text is authentic)
(Text with EEA relevance)
1.
PROCEDURE
2.
BACKGROUND TO THE MEASURES INVESTIGATED
2.1.
Creation of BSCA and SOWAER — Background to the commitments made by the Walloon Region and SOWAER concerning Brussels South Charleroi Airport
2.1.1.
Institutional reform of 1980
2.1.2.
Creation of BSCA and Region/BSCA agreement of 1991
2.1.3.
Measures relating to payment of the ‘fire-maintenance’ subsidy by the Region to BSCA from 1997 to 2002
2.1.4.
Formulation of the investment plan for Charleroi airport in 1999-2000
2.1.5.
Creation of SOWAER on 1 July 2001
2.1.6.
SOWAER/BSCA agreement of 15 April 2002 and Amendment No 3 of 29 March 2002 to the Region/BSCA agreement
2.1.7.
Revision of the investment programme on 3 April 2003
2.1.8.
SOWAER/BSCA agreement of 4 April 2006 and Amendment No 5 of 10 March 2006 to the Region/BSCA agreement
2.1.9.
Amendment No 6 of 15 January 2008 to the Region/BSCA agreement
2.2.
Development of Charleroi airport
2.3.
Status and share ownership of BSCA
3.
DESCRIPTION OF THE MEASURES
3.1.
Measures granted by the Region and SOWAER to BSCA
3.1.1.
Land and infrastructure of Charleroi airport placed at the disposal of BSCA, including infrastructure constructed under the investment programme, and provision of certain services, particularly major repairs, in return for a concession fee
3.1.1.1.
Land and infrastructure of Charleroi airport placed at the disposal of BSCA, including infrastructure constructed under the investment programme, and provision of certain services, particularly major repairs
3.1.1.2.
Concession fee payable by BSCA to SOWAER
(i) Contractual provisions
(a) Period from 15 April 2002 to 31 December 2005
(b) Period from 1 January 2006
(ii) Amounts of the fees paid by BSCA to SOWAER
3.1.2.
Subsidy paid by the Region for certain services associated with airport activities
3.1.2.1.
Contractual provisions
(a) Period from 29 March 2002 to 31 December 2005
(b) Period from 10 March 2006 to 31 December 2007
(c) Period from 1 January 2008
3.1.2.2.
Amount of the subsidy paid by the Region
3.1.3.
Capital increase subscribed by SOWAER
3.2.
Measures granted by the Region and BSCA to Ryanair
(62)
3.2.1.
The 2001 agreements
3.2.1.1.
The commitment of the Walloon Government of 6 November 2001
3.2.1.2.
The 2001 contract, including the provisions relating to Promocy
3.2.2.
The Ministerial Order of 11 June 2004 and the BSCA letter of 24 June 2004
3.2.3.
The 2005 amendment
3.2.4.
The 2010 amendment
3.2.5.
Sale of BSCA shares in Promocy
4.
COMMENTS FROM INTERESTED PARTIES
4.1.
Comments from interested parties on the measures granted to BSCA
4.1.1.
Brussels Airport Company (hereinafter ‘BAC’)
(a) Comments received in September 2012 following the adoption of the 2012 extension decision
(i) BSCA's payment for the concession and infrastructure
(ii) Services provided by SOWAER to BSCA and services reimbursed by the Region
(iii) Participation of SOWAER in the BSCA capital increase
(iv) Impact on competition
(b) Comments received in May 2014 following publication of the Guidelines on State aid to airports and airlines
(i) Investment aid
(ii) Operating aid
1. Presence of State aid under Article 107(1) TFEU
2. Compatibility of State aid measures under Article 107(3)(c) TFEU
(a) The aid does not contribute to a well-defined objective of common interest
(b) Lack of need for State intervention
(c) The aid is not appropriate and its amount is disproportionate
(d) The aid has negative effects on competition and trade
4.1.2.
Brussels Airlines
(a) Existence of aid granted to BSCA
(i) Economic activity
(ii) Advantage
(iii) Distortions of competition
(b) Legal basis on which to assess the compatibility of the aid to BSCA
(c) Compatibility of the aid granted to BSCA based on the new aviation guidelines
(i) Objective of common interest
(ii) Need for aid
(iii) Inappropriateness of the aid
(iv) Distortion of competition
4.1.3.
Board of Airline Representatives (BAR)
(a) Comments received following the 2012 extension decision
(b) Comments received following publication of the Guidelines on State aid to airports and airlines
(i) Distortion of competition caused by the operating aid granted to Brussels South Charleroi Airport (BSCA)
(ii) Additional comments on the level playing field
4.1.4.
Association of European Airlines (AEA)
(a) Comments received following the 2012 extension decision
4.1.5.
Air France
(a) Comments received following the 2012 extension decision
4.1.6.
BSCA
(a) Comments received following the 2012 extension decision
4.2.
Comments from interested parties on the measures granted to Ryanair
4.2.1.
Britannia
4.2.2.
Scandinavian Airlines
4.2.3.
KLM Royal Dutch Airlines
4.2.4.
Air France
4.2.5.
Austrian Airlines
4.2.6.
Association of Residents and Inhabitants of Municipalities Close to Charleroi-Gosselies Airport (ARACH)
4.2.7.
Interested Party A
4.2.8.
Interested Party B
4.2.9.
Brussels International Airport Company, now Brussels Airport Company (hereinafter ‘BAC’)
4.2.10.
Interested Party C
4.2.11.
Brussels Airlines
(a) Existence of aid
(i) Selective advantage
1. Benchmarking.
2. Cost coverage
(ii) Distortions of competition
(b) Incompatibility with the internal market.
4.2.12.
BSCA
4.2.13.
Ryanair
4.2.14.
TBI
4.2.15.
HRL Morrison and Co
5.
COMMENTS FROM BELGIUM
5.1.
Comments from Belgium on the measures granted to BSCA
5.1.1.
Absence of State aid granted to BSCA
5.1.1.1.
Comments from Belgium following the 2012 extension decision
(a) Provision of the infrastructure by SOWAER
(i) Main argument presented by Belgium: the investment programme was approved by the Walloon Government prior to 12 December 2000
1. Rebuttal of certain elements presented by the Commission in the 2012 extension decision
(a) On the question of the absence of commitment towards a third party
(b) On the question of the irrevocable, firm and definitive nature of the 2000 decisions
2. Belgium's arguments based on the assessment of the 2000 decisions
(a) Decision of the Walloon Government of 20 July 2000 approving the framework agreement
(b) Decision of 8 November 2000 of the Walloon Government implementing the framework agreement of 20 July 2000 and approving the multiannual investment programme for Brussels South Charleroi airport
(ii) Argument presented by Belgium in the alternative: the infrastructure financing complies with the private investor principle
(b) Services provided by SOWAER to BSCA
(c) Financing of part of the cost of services of general interest by the Region
(i) Main argument: the financing of non-economic activities
1. Fire protection service
2. Ground traffic safety services
3. Security services
4. Flight tracking and recording, provisional flight planning and marshalling services
5. Conclusions on the financing of the services of general interest provided by BSCA at the request of Wallonia
(ii) In the alternative: financing of economic activities of general interest in accordance with the
Altmark
judgment
1. Existence of clearly defined public service obligations
2. Compensation parameters defined in an objective and transparent manner
3. Limitation of the compensation to the costs incurred
4. Comparison with a similar well-run and adequately equipped undertaking
(d) BSCA's capital increase carried out by SOWAER in 2002
5.1.1.2.
Comments from Belgium following the comments from third parties on the absence of aid to BSCA received after the 2012 extension decision
(a) Concession fee paid by BSCA
(b) Financing of services of general interest
(i) Comment on the comparison between Charleroi airport and BAC
(ii) Fire protection services
(iii) Ground traffic and airport site safety services
(iv) General safety and security services
5.1.1.3.
Comments from Belgium following the comments from third parties received after the publication of the new aviation guidelines
5.1.2.
Compatibility of the aid granted to BSCA
5.1.2.1.
Comments from Belgium on the compatibility of the measures granted to BSCA, assessed on the basis of the aviation guidelines
(a) Contribution to an objective of common interest
(b) Need for State intervention
(c) Appropriateness of State aid
(d) Incentive effect
(e) Proportionality of the aid amount
(f) Absence of negative effects on competition
5.1.2.2.
Comments from Belgium on the compatibility of the provision of infrastructure, assessed on the basis of Article 106(2) TFEU
(a) Mandate
(b) Compensation
(c) Accounting separation
(d) Checks for overcompensation
(e) Conclusion
5.2.
Comments from Belgium on the measures granted to Ryanair
5.3.
Comments from Belgium on the limitation period
5.4.
Comments from Belgium on the infringement of legitimate expectations
6.
ASSESSMENT OF THE MEASURES
6.1.
Existence of State aid granted to BSCA
6.1.1.
Definition of undertaking within the meaning of Article 107 TFEU
6.1.1.1.
Land and infrastructure of Charleroi airport placed at the disposal of BSCA, including infrastructure constructed under the investment programme, and provision of certain services, particularly major repairs, in return for a concession fee
(a) Was the measure, including new infrastructure constructed under the investment programme being placed at the disposal of BSCA, granted before the
ADP
judgment?
(b) Investments and services provided by SOWAER that must be excluded from the analysis due to being non-economic in nature
6.1.1.2.
Subsidy paid by the Region for certain services associated with the airport activities
(a) Fire protection and security
(i) Application of point 36 of the aviation guidelines
1. Fire protection
2. Security
(ii) Application of point 37 of the aviation guidelines
(b) Maintenance/ground traffic safety
(c) Flight tracking and recording, provisional flight planning and marshalling
6.1.1.3.
Capital increase subscribed by SOWAER
6.1.2.
Selective advantage
6.1.2.1.
Application of the
Altmark
judgment conditions
6.1.2.2.
Application of the market economy operator test
(a) Application of the market economy operator test to the measures involving the provision of the infrastructure, including new investments and major repairs, and the granting of a subsidy for certain services associated with the airport activities
(i) 2002 agreements
1. Application of the market economy operator test
(a) General principles applicable to the four measures
(b) Application of the market economy operator test to the 2002 agreements
(i) Costs and revenue taken into account in calculating the net present value of the 2002 measure
(ii) Discount rate taken into account in calculating the net present value of the 2002 measure
(iii) Result of the net present value calculation
2. Selectivity
(ii) 2003 investment decision
1. Application of the market economy operator test
2. Selectivity
(iii) 2006 agreements
(iv) 2008 amendment to the Region/BSCA agreement
(b) Application of the market economy operator test to the capital increase subscribed by SOWAER in December 2002
6.1.3.
Use of State resources and imputability of the measures to the State
6.1.3.1.
State resources
6.1.3.2.
Imputability of the measures to the State
(i) 2002 SOWAER/BSCA agreement
(ii) 2003 investment decision
(iii) Capital increase subscribed by SOWAER in 2002
6.1.4.
Distortion of competition and effect on trade
6.1.5.
Conclusion on the existence of aid granted to BSCA
6.2.
Existence of State aid granted to Ryanair
6.2.1.
Imputability to the State of the 2010 amendment
(a) With regard to the capital ownership and the votes attached to shares issued by the undertaking:
(b) With regard to the possibility of appointing over half of the members of the Board of Directors:
(c) With regard to the rules in force determining whether the public authorities had a dominant influence:
6.2.2.
Application of the market economy operator test
6.2.2.1.
Determination of the entity having granted the measures
6.2.2.2.
Application of the market economy operator test
(a) Comparison of the prices charged for airport services at Charleroi with the market price
(b)
Ex ante
analysis of the profitability of measures
(i) 2001 contracts
(ii) 2004 provisional commercial framework
(iii) 2005 contract
(iv) Sale of BSCA shares in Promocy to Ryanair
(v) 2010 amendment
1. With regard to the reduction of [10-50] euro cents in the ground handling fee, granted by BSCA
2. With regard to the reduction of the PRM fee to [10-30] euro cents, granted to Ryanair
6.2.3.
Conclusion on the existence of State aid granted to Ryanair
6.3.
Compatibility with the internal market of the aid granted to BSCA
6.3.1.
Compatibility on the basis of Article 106(2) TFEU.
6.3.2.
Compatibility on the basis of Article 107(3) TFEU.
6.3.2.1.
Contribution to a well-defined objective of common interest
6.3.2.2.
Need for State intervention
6.3.2.3.
Appropriateness of State aid as a policy instrument
6.3.2.4.
Existence of incentive effect
6.3.2.5.
Proportionality of the aid amount (aid limited to the minimum necessary)
6.3.2.6.
Avoidance of undue negative effects on competition and trade
(a) Identification of the catchment area and competing airports
(b) Analysis of the distortions of competition caused by the aid
(i) Examination of the substitutability of the service offers of Charleroi and Brussels airports
(ii) Examination of the effects of the aid
(iii) Conclusion
6.3.2.7.
Conclusion on the compatibility of the aid granted to BSCA on the basis of Article 107(3) TFEU
6.4.
Applicability of the limitation period to the aid granted to BSCA
6.4.1.
Amendment No 3 of 29 March 2002
6.4.2.
Amendment No 5 of 10 March 2006 to the Region/BSCA agreement
6.4.3.
Amendment No 6 of 15 January 2008 to the Region/BSCA agreement
6.4.4.
Conclusion
6.5.
Applicability of the principle of legitimate expectations to the subsidy paid by the Region for certain services associated with the airport activities
6.5.1.
Absence of precise assurances
6.5.2.
Foreseeability of the change to the pattern of conduct
7.
CONCLUSION AND QUANTIFICATION OF THE AID TO BE RECOVERED FROM BSCA
7.1.
Aid unlawfully granted to BSCA
7.2.
Aid to be recovered
Article 1
Article 2
Article 3
Article 4
Article 5
Article 6
Article 7
ANNEX
Information on amounts received, to be recovered and already recovered