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European Commission SECRETARIAT GENERAL Office BERL 8/294 B-1049 Brussels European Commission SECRETARIAT GENERAL Office BERL 8/294 B-1049 Brussels Brussels, 16th of November 2005 Additions and Clarification concerning Complaint of 14 December 2004 SG (04) A/13162 Concerning the purchase by Teollisuuden Voima Oy (TVO) of the Framatome ANP 1600 MWh nuclear EPR (European Pressurised Water) Reactor to a fixed price and under various support schemes from Member States. Complaint relating to • illegal State aid in the energy sector, • internal market distortion through illicit export guarantees as illegal state aid, • predatory pricing, • violation of EC procurement rules, • infringement of EEA rules on state aid PDF compliments of www.earthtrack.net Dr. Dörte Fouquet Kuhbier law firm 2 against the Government of Germany (state aid rules infringement through public loan) the Government of Finland (violation of public procurement rules and internal market rules, internal market for energy rules) the Government of France (internal market distortion through illegal state aid export guarantees) the Government of Sweden (state aid) The complainant includes in this document the additions and clarifications as well as the text of the original complaint of 14 December 2004. PDF compliments of www.earthtrack.net Dr. Dörte Fouquet Kuhbier law firm 3 Index Information regarding the complainant...................................................................................... 4 Introduction into the complaint.............................................................................................. 4 Short summary of how the complaint’s interests are affected ........................................... 6 Level at which alleged unlawful aid has been granted....................................................... 6 Information regarding the alleged aid measures complained of ........................................ 7 Main parties involved in this transaction ......................................................................... 18 Banks involved..................................................................................................................... 18 Corporations involved.......................................................................................................... 21 Purchasers......................................................................................................................... 21 Subcontractors involved....................................................................................................... 23 Buyers involved.................................................................................................................... 23 Overview on the different support schemes related to the transaction ............................ 25 Public Support Schemes as illegal state aid ..................................................................... 25 Assessment of the different aid schemes......................................................................... 27 Evaluation of the presence of aid within the meaning of Article 87(1) ECT................... 28 Advantages Granted To Framatome ANP/ Areva and Siemens as Suppliers.................. 29 Advantages granted by Bayerische Landesbank to TVO within the transaction - aid. 29 Specific character ......................................................................................................... 40 State resources.............................................................................................................. 40 Impact on intra-community trade and competition...................................................... 41 Conclusion.................................................................................................................... 41 Export guarantee advantages granted by COFACE to AREVA within the transaction .. 42 Factual situation ........................................................................................................... 42 Legal situation.............................................................................................................. 45 Conclusion.................................................................................................................... 52 Swedish State guarantee................................................................................................... 52 Combined influence of the different support schemes..................................................... 53 Fixed Price contract and market distortion according to Article 82 ECT....................... 54 Other financing support to the project.................................................................................. 59 Supplier credits and bilateral loans .................................................................................. 59 Infringement of EC Public Procurement Rules.................................................................... 60 Violation of the Public Procurement Directive 93/38/EC................................................ 60 Obligation to run public procurement procedure for electricity received from Olkiluoto 3........................................................................................................................................ 60 Violation of Public Procurement Rules by TVO for the Purchase of the new Nuclear Power Station ................................................................................................................... 62 Violation of the Public Procurement Directive 93/38/EC by TVO ................................. 64 Violation of procurement rules by TVO due to non enquiry into state aid schemes ....... 66 Infringement of EEA Agreement ......................................................................................... 68 Formal legal demand.................................................................................................... 69 PDF compliments of www.earthtrack.net Dr. Dörte Fouquet Kuhbier law firm 4 Information regarding the complainant 1. Name and Address: EREF, European Renewable Energies Federation ,asbl, Avenue de la Fauconnerie 73, 1170 Brussels, Belgium President: Peter Danielsson, address: Kungsgårdsvägen 50, 68154 Kristinehamn, Sweden 2. Legal representative for this complaint : Represented by: Kuhbier law firm sprl, Dr. Dörte Fouquet, Rechtsanwältin (German lawyer), Avenue de la Fauconnerie 73, 1170 Brussels, Belgium Tel. : +32.2.6724367 Fax : +32.2.6727016 fouquet@kuhbier.com Proof of authorisation is submitted. 3. Activities of EREF: EREF is a non-profit umbrella industry organisation of national associations of small and medium sized producers of electricity and biofuel from renewable energies sources (“RES”). EREF represents the RES producers’ interests before the different European and International organisations. Introduction into the complaint This complaint was introduced in December 2004 and aims to formally ask the European Commission to investigate serious and orchestrated concertations and actions PDF compliments of www.earthtrack.net Dr. Dörte Fouquet Kuhbier law firm 5 to the detriment of competition in the European internal market for energy by Germany, Finland, France and Sweden in a transaction to sell and purchase the above mentioned EPR nuclear reactor from FRAMATOME ANP to TVO in Finland. It also suggests investigating violations of the notification requirements under the Treaty Establishing the European Atomic Energy Community (“Euratom”) and violations of the Electricity market directive. These actions aimed and helped to reduce economic risks related to the projects as on the side of the purchaser as on the side of the seller to a level which is unheard in any power plant transaction or any energy supply since liberalisation of the European energy market in 1996. Without the numerous non-notified acts of assistance by state authorities which will be outlined below and which have to be seen in the overall context of discrimination and distortion of the European energy market this nuclear power plant purchase transaction could not have happened at the guaranteed purchase price and Teollissuuden Voima y OY (“TVO”) could not sell the future electricity to the envisaged and already subscribed low electricity price. The inter linkage and dependency between the different actions make it necessary that the whole complaint is to be evaluated in a concise and co-ordinated way by all European Commission’s Directorate Generals involved. While the illegal state aid granted by different member states is the main focus of this complaint, because it negatively affects member state trade and puts the complainant and all its members and their member companies at a competitive disadvantage. This does not mean that the other violations of European law should be neglected or could be handled by the competence of just the Directorate General for Competition. To the contrary the complainant reiterates its suggestion for a full investigation coordinated by the Secretariat General of the Commission. The Complainant expresses concern about the handling of its complaint during the past eleven months. The Complainant perceives that not all relevant Directorates General have been involved in the alleged treaty infringement investigation and that the state aid PDF compliments of www.earthtrack.net Dr. Dörte Fouquet Kuhbier law firm 6 part of the investigation gives the Complainant the impression that it might not have been carried out in a completely un-prejudiced way. Short summary of how the complaint’s interests are affected EREF represents national associations
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