State aid N 90/2008 Austria Partial Privatisation of Energie AG Oberösterreich by a Private Placement Operation

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1 EUROPEAN COMMISSION Brussels, 17.VI.2008 C (2008) 2667 fin. In the published version of this decision, some information has been omitted, pursuant to articles 24 and 25 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty, concerning non-disclosure of information covered by professional secrecy. The omissions are shown thus [ ]. PUBLIC VERSION WORKING LANGUAGE This document is made available for information purposes only. Subject: State aid N 90/2008 Austria Partial Privatisation of Energie AG Oberösterreich by a Private Placement Operation Madam, Procedure: 1. By letter dated 15 February 2008, for legal certainty Austria notified to the Commission the intention of the Land Oberösterreich to privatise 49 % of Energie AG Oberösterreich by a private placement operation. It submitted annexes by letter of 21 February 2008, which was registered on 25 February Following a letter of the Commission of 11 April 2008, Austria submitted additional information including comprehensive annexes on 25 April 2008, registered on 28 April Detailed description of the measure: 2. The current ownership structure for the shares, from which are preferred shares without voting rights, is the following: Land Oberösterreich ,281% Linz AG ,219 % Workforce of Energie AG ,488% (preferred shares) Ihrer Exzellenz Frau Dr. Ursula PLASSNIK Bundesminster für auswärtige Angelegenheiten Ballhausplatz 2 A Wien Commission européenne, B-049 Bruxelles Belgique Europese Commissie, B-1049 Brussel België Telefon (0)

2 Oberösterreichische Landesbank ,013 % (preferred shares) 3. In the year 2002, the Land Oberösterreich has sold 25 % and one additional share to EVN AG, Wiener Stadtwerke Holding AG and the LINZ AG. This partial privatisation had been notified to the Commission. In that case, although there was no public tender held, there were two evaluations carried out by independent experts to establish the market value on the basis of generally accepted market indicators and valuation standards. The Commission assumed that the Land Oberösterreich was behaving like a private investor operating under normal market economy conditions and accordingly concluded in its decision that the measure did not constitute state aid (N 861/2001) At the same time, Energie AG joined the Energy Alliance, which is a co-operation of several Austrian energy enterprises. In the year 2006, after Energie AG Oberösterreich left the Energy Alliance, most of the former partial privatisation was reversed and the Land Oberösterreich bought back the shares of EVN AG and the Wiener Stadtwerke Holding AG for the price of EUR [ ] * per share. The partial reversal of the sale of shares had been earlier agreed for the case that Energie AG would leave the Energy Allianz. Only the LINZ AG kept its share package representing 6,219 % of the total shares. 5. In the following year, the Land Oberösterreich decided to float shares (to list the shares on a public stock exchange) at the Vienna stock exchange. Further to the sale of shares, an increase of capital was planned, which would have resulted in a minimum shareholding of 51 % of the Land Oberösterreich in Energie AG. The target date for that IPO (Initial Public Offering, a company issues common stocks to the public a first time) was in February However, following the vote of a citizens' initiative against the IPO, which would have resulted in a formal consultation of citizens ("Bürgerbefragung") in March 2008, the Land Oberösterreich examined the possibility of a private placement transaction involving selected private investors. 6. According to Austria, the Land Oberösterreich negotiated with potential investors on the basis that the share price would remain in the valuation range established by the banks preparing the IPO [ ], which would have been relevant in the book building procedure. By this procedure bids are collected from investors at various prices, between the floor price and the cap price, to determine the final price of the shares. In the context of preparing the IPO, which has been abolished at a later stage, [ ], co-operated closely as joint global co-ordinators and equal partners of Energie AG. 7. The private placement includes a capital increase for Energie AG by shares (increase of the number of total shares from to ), the empowerment of the supervisory board to issue further preferred shares without voting rights to Energie AG's workforce, which would result in a share capital of EUR including EUR ordinary shares and EUR preferred shares without voting rights. 8. After the private placement transaction the shareholder structure will be as follows: 1 * Letter of the Commission of 27 February 2002, C(2002)614fin business secrets 2

3 Transfer of shares in the private placement transaction Shareholding in total shareholding after increase of equity to , in % shareholding after increase of equity to in % Land OÖ 46, ,604 % 51,000 % Shareholder Energie AG Belegschaft Privatstiftung (Mitarbeiterinnenbeteiligung) (after use of the approved capital: 3, ) 0,438 % 3,475 % LINZ AG 4, , ,315 % 10,000 % TIWAG 7, , ,251 % 8,000 % Raiffeisen OÖ Konsortium 12, , ,925 % 13,500 % Oberbank- Konsortium 4, , ,157 % 5,000 % Österreichische Elektrizitätswirtschafts- Aktiengesellschaft (Verbund) 4, , ,183 % 5,025 % Voestalpine AG 1, , ,063 % 2,000 % Oberösterreichische Landesbank Aktiengesellschaft ,031 % 1,000% Allgemeine Sparkasse Oberösterreich Bankaktiengesellschaft ,516 % 0,500 % Oberösterreichische Versicherung Aktiengesellschaft ,516 % 0,500 % 9. The Land Oberösterreich will transfer the shares proportionally by taking into account both the sale of a part of its former stock of shares and shares originating from the capital increase. In total, it would sell shares from its former stock resulting in a shareholding of (52,604 %) after the capital increase and shares (51 %) after having used the approved capital. From this follows that the Land Oberösterreich will retain the shareholding majority of Energie AG. 10. Both sides, the Land Oberösterreich and the investors agreed on the following provision for the private placement transaction: The price offered to all investors is EUR 24 per share resulting in a total price of EUR for the old shares and a price of EUR for the new shares. 11. On 31 January 2008, the Parliament of the Land Oberösterreich repealed its decision regarding the floating of Energie AG Oberösterreich, approved the private placement transaction and empowered the government of Oberösterreich to conclude the necessary contracts on the basis of EUR 24,0 per share. It would finally close the transaction as 3

4 soon as the European Commission has decided that the measure does not constitute state aid according to Article 87 EC Treaty. 12. To ensure that the shares will be sold at the market price the Land Oberösterreich procured [ ], to accompany the private placement transaction and to provide two independent valuations of the market price. Both banks concluded on 24 January 2008 that a share price comprised between EUR [ ] and [ ] and between EUR [ ] and [ ] can be considered as a fair price for the Land Oberösterreich and the Energie AG. 13. Austria expressed its opinion that the transaction does not involve state aid elements as it is based on a reasonable private investor s test and the resulting price would be the market price. The only reason for the notification and the request for a formal decision by the Commission are to create legal security that the planned transaction is compatible with the state aid rules of the Community. In particular, Austria submitted the case because the Commission stated in its XXIIIrd Report on Competition Policy (1993) that each privatisation, in which no public tender was held or where the shares were not floated, has to be notified to the Commission. Assessment of the measure 14. The measure notified concerns the partial sale of a state-owned company. When privatising a company state resources are clearly concerned. Possible special conditions of a privatisation determine the amount which the state receives from the sale. Specific elements of such a sale, e.g. lower sales price or acceptance of certain charges by the state, can favour the privatised company or its new owner with respect to their competitors. The supply of energy and other activities of the purchasers (e.g. banking and insurance companies, see table above) is an international, competitive business. Preferential treatment within the privatisation procedure could, by favouring certain companies, distort competition and affect trade. 15. According to the 23 rd Comptition Report from , "when the privatisation is effected by the sale of shares on the stock exchange, it is generally assumed to be on market conditions and not to involve aid." However, if the company is privatised not by stockexchange flotation but by a trade sale, i.e. by sale of the company as a whole or in parts to other companies, several conditions must be observed if it is to be assumed, without further examination, that no aid is involved. First of all, "a competitive tender must be held that is open to all comers, transparent and not conditional on the performance of other acts such as the acquisition of assets other than those bid for or the continued operation of certain businesses." Further, the company must be sold to the highest bidder and bidders must have enough time to carry out a proper evaluation. 16. If these conditions are not met, trade sales must be examined by the Commission for possible aid implications. This is in particular the case for sales after negotiations with a single prospective purchaser or a number of selected bidders. 17. In the case of the partial privatisation of Energie AG there was no public tender but only negotiations with a number of selected bidders. Therefore, the Commission cannot presume that no aid was involved and accordingly it must examine the sale for possible aid implications. It must be made sure that the company is sold at a price corresponding to its actual market value. Independent expert opinions, as mentioned in the 2 XXIIIrd Report on Competition Policy 1993, Brussels and Luxembourg, 1994, page 255 and 256 4

5 Commission communication on State aid elements in sales of land and buildings by public authorities (OJ C 209 of ), can provide an estimation of the market value of a company, but are of less value in this context than they would be within the sale of real estate, due to the complex nature of such an evaluation. 18. In the case at hand, although there was no public tender held, two independent experts, [ ] and [ ], were mandated to establish the market value on the basis of generally accepted market indicators and valuation standards. 19. Austria explicitly confirmed that the two banks [ ] and [ ], which established the range of the potential market price of the transaction, were independent both from the Land Oberösterreich and the Energie AG, that they have received independent mandates for drafting valuation reports and that they have been informed on the need to set up independent reports. Further, Austria underlined that the two banks did not co-ordinate the drafting of these documents and that they were independently responsible for the valuations and exclusively followed their internal guidelines. This procedure can be regarded as being in accordance with the rules described above. 20. The mandated banks applied the following methodology to establish the market value of the transaction: 21. [ ] 22. As the table demonstrates, the opinions of the independent experts lead to similar value ranges: 23. Finally, the Land Oberösterreich, after negotiating with investors, agreed on a share price of EUR 24,0 by its decision dated 31 January This price applies to both old and new shares after the capital increase. 24. Austria provided detailed information on the methodology, the underlying assumptions and the data used by the banks to determine the market price, which the Commission verified with regard to its adequacy. The Commission finds that the reports had been drafted on a sound basis and had appropriately taken into account information from comparable transactions and enterprise valuations. Austria provided background information on the decision making process and demonstrated that the expert reports were properly taken into account. Also, the Commission is not aware of any party having voiced an interest in the purchase of the share and its willingness to pay a higher price. 25. The Commission takes note that the Land Oberösterreich did not impose conditions on the partial sale of Energie AG (e.g. maintenance of the level of employment or activities, capacities, conditions ensuring certain investment levels), which may have lowered the sales price. 5

6 26. On the basis of these elements resulting in a negotiated share price of EUR 24, the Commission considers that the Land Oberösterreich behaves like a private investor operating under normal market economy conditions, trying to receive a maximum return from the sale and does not grant any State aid within the framework of the proposed transaction. Therefore the notified measure as described above, the sale of shares of Energie AG to certain private investors by the Land Oberösterreich can be considered not to include state aid elements within the meaning of Article 87 (1). 27. Finally the Commission would like to point out that for any further sale of shares not subject to a tendering or floating procedure a new notification will be required in order to examine for possible aid implications. Decision The Commission has accordingly decided that the measure does not constitute aid within the meaning of Article 87 (1). 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: Your request should be sent by registered letter or fax to: European Commission Directorate-General for Competition Directorate for State Aid State Aid Greffe B-1049 Brussels Fax No: (0032) Please mention the name and number of the case in all the correspondence. Yours faithfully, For the Commission Neelie KROES Member of the Commission 6