Committee on Petitions NOTICE TO MEMBERS

Transcription

1 European Parliament Committee on Petitions NOTICE TO MEMBERS Subject: Petition No 0694/2015 by Efstratia Kambouri (Greek) bearing 108 signatures, on alleged infringements of EU law and European agreements regarding the award of a contract for the development of a large area of land on the site of the former Ellinikon Airport in Attica 1. Summary of petition The petitioners express concern regarding breaches of EU and international law with regard to the award of a contract for development of the former Ellinikon Airport site in Attica. In particular, they allege infringement of: (a) State aid legislation, the investor having received favourable treatment in at least six areas, (b) the Aarhus Convention through alleged failure to inform those concerned of the details of a project that will directly impact on their quality of life, (c) the European Landscape (Florence) Convention since the projected works and construction activity will detract from the coastline, the marine ecosystems and the urban landscape, (d) Directive 92/43/EEC and the Barcelona Convention, under which Posidonia meadows are identified as a priority habitat at risk, which will be further endangered by coastal and seabed operations, (e) Directive 2001/42/EC on assessment of the effects of certain plans and programmes on the environment through the enactment of a special law regarding the project, since the requisite strategic environmental assessment (SEA) procedures were not followed for consultation and information of the public and taking account of its views for decision-making purposes. The petitioners identify seven areas where public input would be of great value. They conclude by pointing out that almost half the population of Greece is resident in Athens and is therefore directly affected. They also observe that, although the purpose of signing the contract was repayment of Greek debt, this objective will probably not be achieved since, on the one hand, the contract price is far below the actual value of the property, which includes including expensive Olympic installations, while, on the other, the State is assuming much of the cost. The petitioner also calls for the application of a CJEU judgment in a similar environmental case, C-473/14, also regarding non-compliance with Directive 2001/42. He indicates that an MEP belonging to the Committee on Petitions has lodged a complaint with the Athens Public CM\ docx PE v04-00 United in diversity

2 Prosecutor s Office. Expert investigators have uncovered evidence of an excessively low sale price with zero risk to the investor, as well as irregularities in the draft contract between the Greek Government and the contracting company. 2. Admissibility Declared admissible on 18 February Information requested from Commission under Rule 216(6). 3. Commission reply, received on 29 June 2016 The petitioner complains about the privatisation of the former Ellinikon Airport and other areas located on the coast of Athens and invokes breaches of several EU legal acts. The Commission would like to initially stress that the obligations defined by the Convention on access to information, public participation in decision making and access to justice in environmental matters (Aarhus Convention) 1 have been integrated in the relevant EU legislation: in the present case Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (SEA Directive) 2. Therefore in the present situation only compliance with this Directive needs to be verified. The petitioner claims that a strategic environmental assessment should have been carried out before the adoption of special Law 4062/2012 in 2012 as this law made substantial changes to existing urban and land use planning in the Elliniko area. By making such modifications the petitioner claims that the law is de facto approving a plan and a strategic environmental assessment should have been carried out in accordance with Article 3 of the above Directive. The Commission would however like to point out that according to Article 2 of the Directive 2 cumulative elements need to be fulfilled in order for a document to be considered as a plan: a) it has to be subject to preparation and/or adoption by an authority at national, regional or local level or to be prepared by an authority for adoption, through a legislative procedure by Parliament or Government and; b) it has to be required by legislative, regulatory or administrative provisions. In the present case, the document the petitioner considers to constitute a plan (that was approved by Law 4062/2012) was not required by any Greek legislative, regulatory or administrative provision and thus cannot be defined as a plan under Article 2 of the Directive. However, the above Law also calls for implementing acts to be adopted (e.g. Special Urban Development Plans for Public Property "Ειδικά Σχέδια Χωρικής Ανάπτυξης Δημόσιων Ακινήτων, that need to be approved by Presidential Decree and that can modify existing "General Urban Plans Γενικά Πολεοδομικά Σχέδια" and " Urban and Development Planning of cities Σχέδια Χωρικής και Οικιστικής Οργάνωσης Ανοικτών Πόλεων"). Such implementing acts could thus constitute a plan in the sense of Article 2 of Directive 2001/42/EC (as they would be required by a legislative provision) and necessitate a strategic environmental assessment before being approved. From the information communicated to the Commission it appears that such acts have not yet OJ L 197, , p PE v /7 CM\ docx

3 been approved and thus no breach of Directive 2001/42/EC can for the moment be established. The petitioner also invokes a breach of Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora 1 as future construction works could endanger priority habitat Posidonion oceanicae (Posidonia beds) listed in Annex I of the Directive. According to the Directive, Member States have to designate Natura 2000 sites for the conservation of all natural habitat type listed in Annex I. The Commission would however like to note that the area referred to by the petitioner, and where future construction works might be carried out, does not appear to be hosting any Natura 2000 site. It should also be kept in mind that if individual projects are to be approved and carried out in the future, they would also need to comply with Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment 2. More concretely, that would mean that such projects could or should (depending on whether they are listed in Annex I or II of Directive 2011/92/EU) undergo an environmental impact assessment before being carried out. The eventual impact of the project on priority habitats would then need to be analysed in that context. Finally, the petitioner is also claiming a breach of the European Landscape Convention since the projected works and construction activity will impact the coastline, the marine ecosystems and the urban landscape. The Commission would like to highlight that the said Convention is an instrument of the Council of Europe. As regards compliance with EU environmental legislation the pertinent legal instrument is Directive 2011/92/EU, which also refers to landscape. With regard to the alleged infringement of Article 107 of the TFEU, the Commission would like to highlight the fact that, following Parliamentary questions (ref. E-4249/2014, E- 5106/2014 and E ), it requested clarification from the Greek authorities on the various alleged State aid to Lamda Development and Hellinikon AE mentioned in the petition. The Greek authorities replied to this request in October 2014 and in March Following a careful examination of these clarifications, the Commission services concluded that, based on the information available, they did not see any reason to investigate these allegations further and informed Greece accordingly. The information provided in the petition contains no additional elements which would put that conclusion into question. 4. Commission reply (REV I), received on 28 February 2017 Following the hearing of 11 October 2016 before the Committee on Petitions of the European Parliament ('the Committee') regarding Petition 0694/2015 (the petition), the Commission has 1 OJ L 206, , p OJ L 26, , p CM\ docx 3/7 PE v04-00

4 been requested to provide further clarifications to the Committee also on the competition aspects of the file. The petition focuses on a series of allegations concerning State aid infringements in the case of the privatization of the Hellinikon SA, among other things. Even though the Commission has not received any complaint from a competitor of Lamda Development in this case, and the measures described in the petition were also not notified to the Commission by Greece, the Commission investigated the matter following three Parliamentary written questions in In particular, in July 2014 and in January 2015 the Commission requested clarification from the Greek authorities regarding alleged State aid to Hellinikon SA and to Lamda Development. Greece replied in October 2014 and in March As already noted, the Commission has not identified any element that would point to the existence of illegal State aid. The reasons for this are further explained below. With regard to the sale of the land, it should be noted that an open, transparent and nondiscriminatory tender, at the end of which the assets are sold to the highest bidder, normally ensures that the sale is made at market price and that State resources are not transferred to the buyer. Based on the information provided by the Greek authorities in October 2014 and March 2015, the Commission has no particular reason to suspect that the selection of Lamda Development was vitiated by any flaw that would point to the presence of aid. In particular, no complaint was received regarding this tendering process and none of the other bidders complained that the tender was flawed or that the sale unduly advantaged Lamda Development. The existence of an independent expert valuation can be an indication of a possible market price, but such a theoretical exercise cannot supersede an effective market test such as the tender that was organized. It should also be mentioned that it is common practice for certain types of project for a tender to be followed by a negotiation phase and some adjustments between the bidder and the State. The Commission does not have any evidence that these adjustments (e.g. the change in the share of Hellenikon SA that was sold) have in the present case conferred an undue advantage on Lamda Development. Such potential advantage can indeed only be appreciated in light of all the elements of the arrangements. Again, the absence of a complaint, even though the tendering procedure had raised quite some interest, is a strong indication of the absence of irregularities. The petitioner also does not bring forward any elements that put this view into question. With regard to the alleged granting of a casino licence, the Greek authorities have explained that from the start the tendered development zone could be used for tourism/recreation, which would normally also allow a casino to be built. Therefore, there does not seem to be any particular reason to believe that a particular advantage was granted to Lamda Development, as other bidders could have also considered such a use. It can therefore be assumed that Lamda Development paid the price of any potential advantage related to the future granting of a 1 See written questions E-4249/2014, E-5106/2014 and E PE v /7 CM\ docx

5 casino licence. The Commission notes in this respect again that no complaint was lodged. Moreover, it can be noted that a casino licence will only be granted after an international tender takes place for the granting of such a licence. Such an international tender should ensure that no advantage is granted to the future casino licence owner and allow the State to maximize its proceeds from the sale of the licence. There is no particular evidence that the location of the casino on the Hellenikon site would correspond to a foregoing of State resources. Consequently, even if it was considered that the casino licence was somehow not part of the initial tender (contrary to the above explanation), and even if it was considered that Lamda Development could possibly obtain an indirect advantage from the location of that casino, it does not appear that such indirect advantage should be considered as financed by State resources and should therefore be considered to constitute State aid. With regard to the alleged tax advantages, the petitioners refer to article 42 para. 6 of Greek law 3943/2011. This article concerns the establishment of Hellinikon SA and the transfer to this company of rights over the former Hellinikon airport site. The tax exemptions relate only to the transfer of the land ownership of the old Athens airport from the Greek State to the public interest entity Hellinikon SA (a 100% State-owned entity), merely with the view to its privatization. No tax exemptions are granted regarding any subsequent transfer of property from Hellinikon SA to third parties (nor to any other operations of the privatised Hellinikon SA). In its reply to the Commission's information request on 9 October 2014, Greece also confirmed that there has been no special tax treatment in favour of Lamda Development, i.e. the bidder, nor in favour of Hellinikon SA after its privatisation. In particular, no tax exemption was granted to Hellinikon SA, 'neither as regards transfer of ownership in real property nor as regards any other type of taxation, following the transfer of the shares from the HRADF [i.e. the Hellenic Republic Asset Development Fund SA] to a new shareholder '. Law 3943/2011 does not provide any special tax arrangement for Lamda Development. So the buyers of the property are subject to all generally applicable taxes. In sum, the tax exemptions of Law 3943/2011 merely facilitated the process of transfer of public land from the State to a public entity with the view to its subsequent sale to a thirdparty investor. From the information available, it seems that the exemptions benefited neither the buyers of the land (i.e. Lamda Development) nor any other undertaking (e.g. Hellinikon SA after its privatisation). Conclusion In view of the information available, there seem to be no elements that would point to the granting of State aid in the case at hand. Therefore, the Commission does not see any reason to investigate the matter further. 5. Commission reply (REV II), received on 31 October 2017 Following the Commission's observations of 28 February 2017, the petitioners sent a letter to the Committee on Petitions on 1 June 2017 providing new information and allegations about CM\ docx 5/7 PE v04-00

6 the existence of illegal State aid in the case under scrutiny. The Commission has carefully examined this new information and in July 2017 sent two requests for information asking Greece specific questions regarding the new allegations of the petitioners and the opinion of the Greek authorities regarding alleged State aid to Hellinikon SA and to Lamda Development. Greece replied in August 2017 and in September Following analysis of the reply from Greece, the Commission confirms its previous conclusions and informs the Committee that it has not identified any element that would point to the existence of illegal State aid. The reasons for this are further explained below. With regard to the change of the tender scope in the second phase of the tender procedure (from use/administration/management/exploitation rights to surface and property rights) Greece has explained that: The object of the tender was the Hellinikon SA shares. The Statute of Hellinikon SA permits the acquisition of rights in rem or in personam on the property of the former airport or nearby properties. Already in phase A of the call for tender (para 1.5) it was mentioned that property rights on the former airport area were to be transferred. The Commission understands that this aspect of the call for tender was sufficiently clarified already from the first phase and consequently it can be reasonably assumed that it was taken into account for the bids already from that point in time. With regard to the change in the percentage of Hellinikon SA to be transferred or the payment terms (one-off or instalments), the Commission has already noted that it is common practice, for certain types of projects, for a tender to be followed by a negotiation phase and some adjustments. Greece has explained that phase A would be a preselection phase describing the general principles of the transaction to be further specified in phase B. Greece has also explained that the Greek Court of Auditors has checked the legality of the tender and has specifically stated that the change in the percentage of shares to be transferred is not contrary to the principles of transparency and non-discrimination. Further to this the Commission notes again that the absence of complaints from competitors of Lamda on this (publicly well-known tender) issue is an indication of the absence of irregularities. With regard to the granting of the Casino licence and the alleged existence of State aid to Lamda development, Greece has explained that: The casino licence will be granted after an international tender procedure by the Ministry of Finance. The precision of the spot where the casino will operate does not pose any restriction to the person that will develop and operate the casino business. It is confirmed that the licence will be granted to the person that will submit the highest offer. Based on this clarification, it appears that the location of the casino would not correspond to State aid in the way mentioned by the petitioners. The possible granting of a casino licence was already mentioned to the tenderers of phase B through the draft contract based on which they submitted their offers. More specifically, para 2.2 of the draft contract provides for such a possibility. Based on this clarification, there is no indication that the offers submitted by the tenderers, hence the final consideration, do not incorporate this information to the detriment of state resources. PE v /7 CM\ docx

7 With regard to the construction of m2 for use by the Greek state as a client, Greece has explained that this is not an obligation of the buyer. It is an offer from the buyer on its own initiative. There is also no obligation for the Greek state to rent any installations. With regard to the potential cost of relocating public services from Ellinikon to other sites or the potential rental cost for the services that will in the end remain in Ellinikon, the Commission cannot with the information available presume the existence of any transfer of state resources to the buyer that would constitute State aid to the buyer. With regard to the alleged tax advantages, the Commission asked Greece whether it had subjected the investment in the old Hellinikon airport to the provisions and related tax advantages of the Legislative Decree No 2687/1953 (Decree) and in particular Article 8 of this Legislative Decree. By letter of 21 September 2017, the Greek authorities confirmed to the Commission that the investment project was not subjected to the provisions of the Decree, adding that neither Hellinikon SA nor Lamda Development S.A. had requested this. Greece also confirmed that, if in the future the investor requested that the project benefits from the advantages that the Decree provides, Greece would notify this to the Commission. Hence, unlike what the petitioners claim, the Commission has not identified any special tax arrangement for Lamda Development. Conclusion In view of the information available, the Commission can only confirm its previous observations communicated to the Committee on 28 February Indeed, there seem to be no elements that would point to the granting of unlawful State aid in the case at hand. Therefore, the Commission does not see any reason to investigate the matter further. CM\ docx 7/7 PE v04-00