State aid N 421/ United Kingdom Welsh Assembly Government Rescue and Restructuring Scheme for SMEs

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1 EUROPEAN COMMISSION Brussels, C(2009)6547 Subject: State aid N 421/ United Kingdom Welsh Assembly Government Rescue and Restructuring Scheme for SMEs Sir, I. PROCEDURE 1) On 14 July 2009, the U.K. authorities notified, pursuant to Article 88(3) of the EC Treaty, the above-mentioned aid scheme. II. DESCRIPTION OF THE SCHEME 1. Objective 2) The scheme contains two parts: one for rescue aid and one for restructuring aid. The rescue part of the scheme is aimed at helping small and medium-sized enterprises in difficulty to recover on the basis of temporary assistance aimed at keeping the firm afloat for the time needed to develop a restructuring or liquidation plan. The restructuring part of the scheme is aimed at helping small and medium sized enterprises in difficulty to reorganise their activities on the basis of a plan to restore their long term viability Legal basis and aid administrators 3) The legal basis of the scheme are Sections 1(2), (3) & (7) of the Welsh Development Agency Act 1975 (being competencies which were vested in the Welsh Ministers pursuant to schedule 11 of the Government of Wales Act 2006) and Sections 70 & 71 of the Government of Wales Act Rescue and restructuring support has been provided to SMEs in Wales since 2003 under the cover of a previous aid scheme approved by the Commission on (N 281/2003 OJ C 16, ). This scheme comes to an end in December The Rt Hon David MILIBAND Secretary of State for Foreign Affairs Foreign and Commonwealth Office King Charles Street London SW1A 2AH United Kingdom Commission européenne, B-1049 Bruxelles Belgique - Europese Commissie, B-1049 Brussel België Tel: (0)

2 4) The scheme will be administered either directly by the Welsh Assembly Government or by Finance Wales plc. 3. Geographical and sectoral coverage 5) The scheme applies only to Wales. 6) The scheme will apply to enterprises in all sectors except those operating in the coal 2 and steel industry 3 and in the fisheries and aquaculture sector. Firms engaged in the primary production of agricultural products are also excluded. Application of the scheme to firms in agriculture sector will be restricted only to those firms engaged in processing and marketing activity. 7) Rules relating to firms in difficulty within specific sectoral rules, for example aviation and shipbuilding sectors, will be complied with in the application of the present scheme. 4. Eligible companies 8) Rescue and Restructuring aid under the scheme will only be granted to small or mediumsized enterprises (SMEs) that are classed as being in difficulty. 9) SME means an enterprise that falls within the criteria and parameters of the definition of micro, small and medium-sized enterprises contained in the Commission Recommendation of 6 May 2003 concerning the definition of micro, small and mediumsized enterprises (2003/361/EC) 4. 10) Enterprises are regarded as being in difficulty where they are unable to stem losses which, without outside intervention by the Welsh Assembly Government will almost certainly condemn it to going out of business in the short or medium term. In particular, a firm will be considered as being in difficulty where any one of the following conditions is met: in the case of a limited company, where more than half of its registered capital has disappeared and more than one quarter of that capital has been lost over the preceding 12 months; in the case of a company where at least some members have unlimited liability for the debt of the company, where more than half of its capital as shown in the company accounts has disappeared and more than one quarter of that capital has been lost over the preceding 12 months; whatever the type of company concerned, where it fulfils the criteria under English and Welsh law for being the subject of collective insolvency proceedings. 11) Aid under the scheme will only be awarded to enterprises where at least one of the three criteria set out above are met. Any aid awarded to enterprises that do not meet any of these criteria will be notified directly to the Commission. 2 High, medium and low grade category A and B within the meaning of the internal codification system for coal laid down by the UN Economic Commission for Europe. 3 As defined in Annex I in the Guidelines on National Regional Aid for , OJ C 54, p OJ L 124, , p

3 12) Any aid to enterprises active in a market suffering from long-term structural overcapacity will also be notified individually to the Commission. 13) The following firms will not be eligible under the scheme, in line with paragraphs 12 and 13 of the Rescue and Restructuring Guidelines 5 (in the following referred to as "R&R Guidelines"): Newly created firms. A firm will be considered as newly created for the first three years following the start of operations in the relevant field of activity. A new firm emerging from a liquidation of a previous firm or a firm that takes over the assets of another firm will also be considered as newly created; A firm belonging to or being taken over by a larger business group except where it can be demonstrated that the firm s difficulties are intrinsic and are not the result of an arbitrary allocation of costs within the group, and that the difficulties are too serious to be dealt with by the group itself. 5. Form of the aid and conditions under which it is granted General conditions applicable to Rescue and Restructuring support 14) One time, last time principle - All support provided under the scheme will be made on a one time, last time basis in accordance with section 3.3 of the R&R Guidelines. 15) Maximum Amount of aid - The maximum amount of aid (combined for rescue and restructuring) that will be awarded to any one enterprise under this scheme will be no more than 10 million, including any aid obtained from other sources or under other schemes. 16) Rescue aid can be cumulated with any restructuring aid subsequently approved or with aid from other sources or under other approved schemes provided that the total amount of aid from all sources does not exceed 10 million. Cumulation of the aid will be calculated using 100%, in terms of the cash grant equivalent, of any equity, loan or loan guarantee offered. Specific Conditions applicable to Rescue Aid 17) Rescue aid under the scheme will only be granted to SMEs in difficulty. The U.K. authorities ensured that the following conditions will apply: Aid under the rescue part of the scheme will be granted exclusively in the form of a loan or a loan guarantee. The loans or loan guarantees will be granted at an interest rate or guarantee fee at least comparable to the reference rate adopted by the Commission plus 100 base points in line with the Communication from the Commission on the revision of the method for setting the reference and discount rates 6 ; Any loan provided will need to be reimbursed within a period of not more than six months after the disbursement of the first instalment to the enterprise. Similarly, any guarantee will come to an end within a period of not more than six months; 5 Community Guidelines on State Aid for Rescuing and Restructuring Firms in Difficulty, OJ C 244, , p OJ C 14, , p. 6. 3

4 Aid will need to be justified on the basis of serious social difficulties and have no undue adverse spill-over effects on other Member States; The level of aid will be calculated on the basis of the indicative formula set out in the annex to the R&R Guidelines. Any rescue aid exceeding the result of that calculation will be individually notified to the Commission; The amount of the aid awarded will be limited to the absolute minimum required to keep the enterprise in business for the period for which the aid is authorised; The maximum period for which rescue aid can be awarded will be 6 months, during which time an analysis will be made of the enterprise s position; The aid will be conditional on the enterprise committing to present a restructuring plan in a time scale enabling a decision to be made by the granting authority on the approval of such a plan. Should the restructuring plan not be approved within 6 months, then the rescue aid will become repayable. Specific conditions applicable to Restructuring Aid 18) Restructuring aid under the scheme will only be granted to SMEs which have been the recipients of rescue aid, or which would fulfil the criteria for eligibility for rescue aid and who have presented a restructuring plan for consideration. Aid under the restructuring part of the scheme will be granted in the following forms: equity injections, debt write-offs, grants, loans and loan guarantees. Aid to cover the social cost of restructuring will not be provided under this scheme. 19) The U.K. authorities stated that the following conditions will apply: The award of aid is conditional on the enterprise presenting a restructuring plan for consideration. Such a plan must demonstrate that it is possible for the enterprise to restore its long term viability. The scheme administrators will ensure that the restructuring plans submitted by enterprises meet the specific requirements set out in paragraphs 34 to 37 of the R&R Guidelines, in particular: o The plan must provide a reasonable prospect of the firm attaining viability in the period covered by the plan; o The period covered by the restructuring plan will be the shortest possible in which the enterprise can demonstrate a restoration of long term viability and will not exceed a period of three years; o Plans must demonstrate that the underlying reasons for previous loss-making have been addressed; o The decision of whether the restructuring plan merits support will be taken on the basis of an in depth review by the Welsh Assembly Government and/or Finance Wales or by an independent consultant; o The review must conclude that the assumptions as to future operating conditions identified in the plan are realistic and capable of being delivered by the company in the time-scale covered by the plan. The granting of the aid will be conditional on the full implementation of the agreed restructuring plan by the recipient company; To avoid undue distortions of competition, enterprises receiving aid under the scheme will not be allowed to increase their overall capacity during the restructuring process. Further, 4

5 support to Medium size enterprises will also be required to conform with the specific requirements of paragraphs 38 to 42 of the R&R Guidelines (compensatory measures); The amount and intensity of the aid will be limited to the strict minimum needed to enable restructuring to be undertaken in the light of the existing financial resources of the enterprise, its shareholders or the business group to which it belongs. The overall duration of the restructuring support provided will not exceed a period of 10 years; Aid beneficiaries will be expected to make a significant contribution to the restructuring plan from their own resources, including through the sale of assets that are not essential to the firm s survival, or from external financing. Any contribution provided by a private sector source must invariably be at market conditions and must contain no element of State aid. Any contribution must be real, i.e. actual, excluding all future expected profits such as cash flow, and must be as high as possible. Small companies will be required to provide a contribution of at least 25% of the restructuring costs and medium companies a contribution of at least 40% of the restructuring costs. To limit the distortive effect, the amount of aid or the form in which the aid is granted must be such as to avoid providing the company with surplus cash which could be used for aggressive, market distorting activities not linked to the restructuring process; Amendments of the restructuring plan will be dealt with in accordance with paragraphs 52 to 54 of the R&R Guidelines; 6. Budget of the scheme and duration of the scheme 20) Funding under this scheme will only be made available as and when it is deemed appropriate by the Welsh Assembly Government to provide support for rescue and restructuring to individual SMEs. It is therefore not possible to identify a specific budget for the scheme. 21) The Welsh Assembly Government however confirmed that any aid awarded will not exceed the maximum amount 10 million of aid per enterprise as set out in the Guidelines. 22) The scheme will be in place until 31 December Monitoring and annual report 23) An annual report on the expenditure under this Scheme will be provided to the Commission in line with the requirements of paragraph 86 of the Guidelines. III. ASSESSMENT 24) The assessment has led to the following observations: 1. Procedure 25) The U.K. authorities have complied with the procedural requirements of Article 88(3) of the EC Treaty by notifying the above-mentioned aid scheme before putting it into effect. Legality of the aid scheme is therefore ensured. 5

6 2. State aid character of the scheme 26) Under the scheme, U.K. authorities (the Welsh Assembly Government directly or through Finance Wales plc.) provide funds in the form of equity injections, debt write-offs, grants, loans and loan guarantees to undertakings in difficulty. These measures engage State resources. The terms on which the funding is provided are more favourable than the terms these companies would have been able to obtain in the open market. The aid element contained in the different instruments foreseen under the scheme gives an economic advantage to the beneficiaries. The aid granted in this manner may strengthen the position of these beneficiaries compared to that of their competitors in other Member States and must therefore be regarded as distorting competition and affecting trade between Member States. The aid is selective as it exclusively aims at SMEs in difficulty. The measures therefore constitute State aid within the meaning of Article 87 (1) of the EC Treaty. 3. Compatibility of the aid measure 27) Aid under the scheme is granted to assist the rescue and restructuring of firms in difficulty. In view of this, the Commission has examined the scheme in the light of Article 87(3) (c) of the EC Treaty, and in particular, on the basis of the R&R Guidelines. Sectoral coverage 28) The Commission notes that the scheme won't apply to enterprises operating in the coal and steel industry and in the fisheries and aquaculture sectors. Firms engaged in the primary production of agricultural products are also excluded; therefore specific provisions of chapter 5 of the R&R Guidelines must not be taken into account. 29) In addition, the U.K. authorities have undertaken to ensure that the special Community rules applicable to State aid in specific sectors, for example aviation and shipbuilding sectors, will be respected. Eligible companies 30) Eligibility for receiving rescue and restructuring aid under the scheme is limited to SMEs in difficulty as required by paragraphs 78 and 79 of the R&R Guidelines. In this context, the Commission takes note of the following: (a) SMEs are defined in reference with the current Community definition of SMEs; (b) Aid under the scheme will only be awarded to enterprises where at least one of the three criteria set out in point 10 of the R&R Guidelines are met. Any aid awarded to enterprises that do not meet any of these criteria will be notified directly to the Commission. Conditions under which rescue aid is granted 31) The grant of rescue aid will satisfy the conditions set out in points (a), (b), (d) and (e) of point 25 of the R&R Guidelines: Rescue aid will be granted exclusively in the form of a loan or a loan guarantee. The remuneration for loans or loan guarantees (i.e. guarantee fee plus interest of the loan) will 6

7 be granted at an interest rate at least comparable to the reference rate adopted by the Commission plus 100 base points in line with the Communication from the Commission on the revision of the method for setting the reference and discount rates. Any loan must be reimbursed and any guarantee must come to an end within a period of six months after the disbursement of the first instalment; The aid will be warranted on the grounds of serious social difficulties and will have no unduly adverse spill-over effects on other Member States. The Welsh economy is still relatively weak and faces structural problems (peripheral location, over-dependence on public sector employment and agriculture, low level of manufacturing productivity). The weakness of the regional economy is reflected in a relatively low per capita GDP (in 2006, GDP per capita in Wales was only 90.4% of the EU27 average despite the fact that GDP for all U.K. was 120.4% of the EU average). At the same time, the Commission notes that eligibility for aid under the scheme is restricted to SMEs and that he amount and intensity of the aid is limited to the absolute minimum required to keep the firm in business for a period of up to six months. It therefore considers that the aid granted under the proposed scheme should not have unduly adverse spill-over effects on other Member States. It will respect the "one time, last time" principle. 32) The aid is made conditional on the beneficiaries presenting a restructuring plan in sufficient time to enable the U.K. authorities to examine and approve it within six months. The scheme also provides that, if the restructuring plan is not approved within six months, the rescue aid will become repayable. This is in line with the requirements laid down in paragraph 80 of the R&R Guidelines. 33) The amount of the aid awarded will be limited to the absolute minimum required to keep the enterprise in business for the period for which the aid is authorised. The level of aid will be calculated on the basis of the indicative formula set out in the annex to the R&R Guidelines. Any rescue aid exceeding the result of that calculation will be individually notified to the Commission. Conditions under which restructuring aid is granted 34) Restructuring aid under the scheme is conditional on the full implementation by the recipient of a restructuring plan approved by the Welsh Assembly Government and/or Finance Wales or by an independent consultant, as required by paragraph 82 of the R&R Guidelines. 35) The period covered by the restructuring plan is the shortest possible in which the firm can demonstrate a restoration of long-term viability and will not exceed a period of three years. The U.K. authorities have confirmed that the plan will include all the elements mentioned in paragraphs 34 to 37 of the R&R Guidelines. 36) The scheme provides that the amount and intensity of the aid must be limited to the strict minimum needed to enable restructuring to be undertaken. In this context, the Commission notes the following: a. Non-increase in the capacity of the aid recipient during the restructuring period as required for small enterprises by point 82 (b) of the R&R Guidelines as well as the avoidance of undue distortions of competition in the form of 7

8 compensatory measures as required for medium enterprises according to point 38 to 42 of the R&R Guidelines; b. Limitation of aid to the minimum necessary in line with points 43 to 45 of the R&R Guidelines. The contribution by the beneficiary will be real (i.e. actual, excluding all future expected profits such as cash flow) and free of any aid and will respect the applicable threshold set in point 44 of the R&R Guidelines. 37) Amendments of the restructuring plan will be dealt with in accordance with paragraphs 52 to 54 of the R&R Guidelines; Other conditions and notification commitments 38) All support provided under the scheme will be made on a one time, last time basis in accordance with section 3.3 of the R&R Guidelines. 39) Rescue and restructuring aid under this scheme shall not exceed 10 million to any one firm, including where the restructuring plan is modified. Rescue aid can be cumulated with any restructuring aid subsequently approved or with aid from other sources or under other approved schemes, provided that the total amount of aid from all sources does not exceed the global maximum of 10 million. Cumulation of the aid will be calculated using 100%, in terms of the cash grant equivalent, of any equity, loan or loan guarantee offered. 40) The U.K. authorities have confirmed that they will submit reports on the scheme s operation in conformity with paragraph 86 of the Guidelines. 41) Finally, the U.K. authorities ensured that provision of rescue and restructuring aid under the following situations will not be supported under the scheme but will be notified directly to the Commission: Rescue and restructuring aid provided to a company active in a market suffering from long-term structural overcapacity; Rescue and restructuring aid provided to a company that does not meet the definition of a firm in difficulty; Rescue aid in excess of the level allowed when applying the formula in the annex to the R&R Guidelines; Rescue aid granted for a period longer than 6 months; Any aid exceeding the maximum amount of EUR 10 Million; Support provided to a firm which takes over the assets of another firm which itself has already received rescue or restructuring aid; Restructuring aid where the level of own contribution falls below the levels identified in the Guidelines; Restructuring aid when a capacity increase is foreseen during the restructuring period; Repetitive granting of rescue and restructuring aid to a firm. 42) The U.K. authorities also commit to ensuring that any other aid granted to a medium sized firm during the restructuring period (including aid in accordance with an approved scheme) will be notified individually to the Commission. 8

9 43) In view of the above, the Commission considers that the notified aid scheme is compatible with the common market in accordance with Article 87(3)(c) of the EC Treaty. IV. DECISION 44) The Commission has accordingly decided not to raise objections against the notified measure, since it fulfils the conditions to be considered compatible with the EC Treaty. 45) The U.K. authorities are reminded that, pursuant to Article 88(3) of the EC Treaty, they are obliged to inform the Commission of any plan to extend or amend the scheme. 46) If this letter contains confidential information, which should not be disclosed to third parties, please inform the Commission within fifteen working days of the date of receipt. If the Commission does not receive a reasoned request by that deadline, you will be deemed to agree to the disclosure to third parties and to the publication of the full text of the letter in the authentic language on the Internet site: 47) Your request should be sent by registered letter or fax to: European Commission Directorate-General for Competition State aid Greffe B Brussels Fax No: (+32.2) In all your correspondence, please specify the name of the case and the case number. Yours faithfully, For the Commission Algirdas ŠEMETA Member of the Commission 9