State aid N 522/2009 Austria Prolongation of State aid N 75/2007 Guarantee scheme for the restructuring of SMEs in Austria

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1 EUROPEAN COMMISSION Brussels, C(2009) 8419 PUBLIC VERSION WORKING LANGUAGE This document is made available for information purposes only. Subject: State aid N 522/2009 Austria Prolongation of State aid N 75/2007 Guarantee scheme for the restructuring of SMEs in Austria Sir, I. PROCEDURE 1. On 15 September 2009 Austria notified the prolongation of the "Richtlinien für die TOP-Tourismus-Förderung , Teil D TOP-Restrukturierung ". II. DESCRIPTION 1. Objective 2. The objective of the aid scheme is the restructuring of SMEs in difficulty. 3. The notified scheme to provide guarantees for the financial restructuring of SMEs active in the tourism sector is intended to complement the approved aid scheme "Teil D der Richtlinien des Bundesministers für Wirtschaft und Arbeit für die TOP-Tourismus-Förderung " Beneficiaries 1 Decision of the Commission of 22 May 2007 in Case N 72/2007, as prolonged by Decision N 521/2009 (yet to be adopted). Dr. Michael Spindelegger Bundesminister für europäische und internationale Angelegenheiten Ballhausplatz 2 A Wien Commission européenne, B-1049 Bruxelles Belgique Europese Commissie, B-1049 Brussel België Telefon: (0)

2 4. The scheme is for small and medium-sized enterprises (SMEs) which qualify as such under the Community definition of SME 2 and which are located in Austria. Newly created companies are not eligible for aid under the scheme in the first three years from the start of their activity. 5. Aid under the scheme can only be granted to SMEs in difficulty. A firm is regarded as being in difficulty if it fulfils at least one of the following criteria: in the case of a limited liability company 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 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 domestic law for being the subject of collective insolvency proceedings. 3. Conditions for granting the aid 6. Aid may only be granted if the reasons for the difficulties of the company can be determined and the possibility of the restoration of its long-term viability is realistically foreseeable. 7. The granting of the aid is conditional on a realistic restructuring plan, which shows that the continuity of the company is sustainable and which describes the circumstances that led to the company's difficulties. The restructuring plan has to include, in addition to financial restructuring (e.g. capital increase, reduction of debts), the future organisational structure and the strategic positioning of the company. 8. The aid is conditional on full implementation of the restructuring plan, otherwise the granting of the aid may be stopped and the amounts granted fully or partially recovered. 9. Measures aimed exclusively at consolidating past losses are not eligible. The beneficiary companies must not increase their capacity during the restructuring. 10. Medium-sized enterprises are required take compensatory measures in order to ensure that the adverse effects on competition are minimised. The compensatory measures have to be proportionate to the distortive effects of the aid and to the size and the relative importance of the firm on its market. 11. The beneficiaries are expected to make the highest possible contribution to the restructuring of the company, e.g. selling assets which are not essential to the firm's survival. Credit institutions and the creditors of the company may also contribute to the restructuring on market conditions. The total amount of these private contributions must cover at least 25% of the restructuring costs for small enterprises and at least 40% for medium-sized enterprises. 2 Commission recommendation of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (2003/361/EC), OJ L 124 of , p. 36 2

3 12. The amount and intensity of the aid has to be limited to the strict minimum of the restructuring costs in the light of the existing financial resources of the company, its shareholders and the creditors concerned. 4. Form and amount of the aid, 'one time, last time' 13. The aid is granted by the Bundesministerium für Wirtschaft und Arbeit through the Österreichische Hotel- und Tourismusbank Gesellschaft m. b. H. (ÖHT) in the form of guarantees. 14. None of the aid may be used to finance new investments which are not essential for restoring the firm's viability. The amount and the form of the aid must be such as to avoid providing the company with surplus cash which could be used for market-distorting activities. 15. Aid may be combined with restructuring aid from other sources or under other aid schemes, as long as the total aid does not exceed EUR 10 million. The planned funding for the aid scheme is EUR 3.3 million per year and EUR 6.6 million for the whole duration of the scheme. Aid granted exclusively under the scheme may not, however, exceed EUR 2 million in any one case. 16. A beneficiary may only receive aid once under the present scheme or any other rescue and restructuring scheme. 5. Annual reports 17. The Austrian authorities undertake to present annual reports on the operation of the scheme containing the information specified in the Commission's instructions on standardised reports 3. The annual reports will also include a list of all beneficiary companies indicating for each of them the data specified in point 86 of the Community Guidelines for rescuing and restructuring firms in difficulty 4 ( R&R Guidelines ). 18. For reasons of consistency, the present Decision assesses only the modifications made to the scheme N 75/2007 adopted on 21 January III. MODIFICATIONS TO AID SCHEME N 75/2007 NOTIFIED BY THE AUSTRIAN AUTHORITIES 19. The modifications to the notified scheme are as follows: a. a prolongation of the existing scheme until 9 October 2012; b. an increase in its funding to a total of EUR 12 million or EUR 4 million a year. 20. All other conditions of the existing scheme remain unchanged. 3 A and B (standardised reporting format for existing State aid) to Commission Regulation (EC) No 749/2004 of 21 April 2004 adopting provisions for the implementation of council Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ L 140, , p. 1). 4 OJ C 244, , p. 2. 3

4 IV. ASSESSMENT 1. Legality 21. By notifying the modifications that they intend to make to an existing scheme, the Austrian authorities have fulfilled their obligations under Article 88(3) of the Treaty. 2. Aid element 22. The terms of the guarantee are more favourable than the terms these companies would be able to obtain on the open market. This gives an economic advantage to the beneficiaries. The aid granted in this manner strengthens the position of these beneficiaries compared with that of their competitors in Austria and other Member States and must therefore be regarded as distorting competition and affecting trade between Member States. The measures therefore constitute state aid within the meaning of Article 87(1) of the EC Treaty. 3. Compatibility with the common market 23. The Austrian authorities have renewed all the commitments set out in Decision N 75/2007 (see, in particular, point 8.1. of the Guidelines for Guarantees for the Tourism and Leisure-sector ). 24. As regards the extension of the scheme, the mere prolongation of the scheme does not alter the ground of the Commission Decision approving the N 75/2007 existing scheme. Moreover, the prolongation will not go beyond the validity of the 2004 R&R Guidelines. 25. Concerning the increase of the budget: According to point 83 of the 2004 R&R Guidelines, the maximum amount of aid granted for combined rescue and restructuring aid of any firm may not be more than EUR 10 million, including any aid obtained from other sources or under other schemes. The overall budget of the scheme for all potential beneficiaries will be EUR 12 million, i.e. EUR 4 million per year. Moreover the guidelines of the scheme Übernahme von Haftungen für die Tourismus- und Freizeitwirtschaft limit the maximum guarantee amount per company from EUR ,- to the amounts mentioned in the SME Regulation 5 and EU-State aid rules. Furthermore, for the points , 4.10 and 4.11 of the guidelines covered by the de minimis Regulation 6 the guarantee amount is limited to EUR 1,5 million over a period of three years. The aid amounts for points 4.7 and 4.9 are limited to EUR over three years in the sense of the de minimis Regulation 7. All these amounts are well below the upper limit of EUR 10 million per individual firm and thus in line with the 2004 R&R Guidelines. 26. Therefore, in view of the fact that all other elements of the scheme remain unchanged, the Commission considers that the notified modification does not alter substantially the grounds for the Commission decision approving the existing N 75/2007 scheme. 5 Commission Regulation (EC) No 70/2001 of 12 January 2001 on the application of Articles 87 and 88 of the EC Treaty to State aid to small and medium-sized enterprises, OJ L 10, , p Commission Regulation (EC) No 1998/2006 of 15 December 2006 on the application of Articles 87 and 88 of the Treaty to de minimis aid, L 379, , p.5. 7 The remaining point 4.8 concerns financial restructuring. 4

5 27. On this basis, the Commission considers that the modification of the scheme is compatible with the common market under the derogation in Article 87(3)(c) of the EC Treaty. V. DECISION 28. In view of the above, the Commission maintains its initial decision to consider this aid compatible with the common market pursuant to Article 87(3)(c) of the EC Treaty. 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 State Aid Registry B-1049 Brussels Belgium Fax No: (32-2) We would ask you to state the case name and number in all correspondence. Yours faithfully, For the Commission Neelie Kroes Member of the Commission 5