Commission Decision (EU) 2019/1144 of 17 December 2018 on the State aid SA.36086 ... (32019D1144)
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
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