EUROPEAN COMMISSION Brüssel, 25.01.2012 C(2012) 203 final corr. In the published version of this decision, some information PUBLIC VERSION 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 WORKING LANGUAGE EC Treaty, concerning non-disclosure of information covered by professional secrecy. The omissions are shown thus […]. This document is made available for information purposes only. Subject: SA 19880 and SA 32576 (ex NN/2011, ex CP/2011) – Germany Flughafen Niederrhein / Weeze und Flughafen Niederrhein GmbH Sir, The Commission wishes to inform the Federal Republic of Germany (hereinafter "Germany") that, having examined the information supplied by your authorities on the measure referred to above, it has decided to initiate the procedure laid down in Article 108 (2) of the Treaty on the Functioning of the European Union (hereinafter: "TFEU"). 1. PROCEDURE (1) The European Commission has received complaints on 15 September 2005, 14 March 2007, 30 January 2009 and 3 November 2010, alleging that regional authorities have granted illegal state aid to Niederrhein Weeze airport (hereinafter "the airport") (2) The Commission requested information from the German authorities on 13 October 2005, 2 March 2007, 3 August 2007, 19 October 2010 and 1 April 2011. (3) The German authorities replied on 21 December 2005 and 2 February 2006, 14 June 2007, 18 October 2007, 11 November 2010, 30 May 2011. However, the reply of the German authorities of 30 May 2011 was incomplete. The German authorities claim that the Commission had already closed the case at hand in July 2009 and therefore refused to reply to questions referring to issues up to July 2009 (see also chapter 4 below). (4) Therefore, by letter dated 24 August 2011 the Commission has sent a reminder according to Article 10 (3) of the Council Regulation N° 659/1999 of 22 March 1999 1 Seiner Exzellenz Herrn Dr. Guido WESTERWELLE Bundesminister des Auswärtigen Werderscher Markt 1 D - 10117 Berlin (hereinafter: "Procedural Regulation")1 to the German authorities giving them the possibility to provide information until 19 September 2011 or the Commission will consider issuing an information injunction. (5) By email dated 13 September 2011 the German authorities requested a delay extension until 19 October 2011 which was accepted by the Commission services by email dated 15 September 2011. (6) Finally, the German authorities submitted their reply on 19 October 2011 which was again incomplete, reiterating their claim about a closure of the case in July 2009. 2. DESCRIPTION 2.1. General Information about Niederrhein Weeze airport (7) The airport is located in Germany in the Land Nordrhein-Westfalen in the Landkreis (administrative district) Kleve between the municipalities of Weeze and Kevelaer adjacent to the German-Dutch Border. To the south, the next largest city is Duisburg, about 60 km away. To the north, the city of Nijmegen (NL) is some 50 km away. (8) Ten airports are situated in proximity to Niederrhein Weeze airport: o Düsseldorf (distance of 51 minutes travelling time or 76 km) o Eindhoven, NL (1 hour 12 minutes or 88 km), o Maastricht, NL (1 hour 14 minutes or 98 km), o Köln-Bonn (1 hour 23 minutes or 133 km), o Dortmund (1 Hour 25 minutes or 120 km), o Liege, BE (1 hour 41 minutes or 152 km), o Antwerp, BE (1 hour 54 minutes or 153 km), o Rotterdam, NL (1 hour 44 minutes or 172 km), o Münster-Osnabrück (1 hour 46 minutes or 175 km) and o Brussels, BE (2 hour 10 minutes or 200 km). (9) Between 1954 and 1999, the airport was used by the UK Royal Airforce as military airport. After a conversion into a civilian airport, passenger flights started in 2003. (10) The airport has a 2440 metres long runway; its terminal has capacity for 3.5 million passengers. The passenger numbers have evolved as follows: Aproximate Index of Share of Year Number of Passengers (Total) growth Ryanair passengers not 2003 208 000 100 available 1 Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (now Art. 88 TFEU), OJ L 83/1 of 27.3.1999, p. 1-9 2 not 2004 797 000 383 available 2005 592 000 285 [80-99]%2 2006 585 000 281 [80-99]% 2007 849 000 408 [80-99]% 2008 1 525 000 733 [80-99]% 2009 2 403 000 1155 [80-99]% 2010 2 897 000 1392 [80-99]% not 2011 2 422 000 1164 available (11) The airport is currently served by Ryanair, Air Berlin, Wizz Air, XL Airways, Transavia, Sky Airlines, Corendon Airlines and Bulgaria Air as well as the charter companies Tailwind and Solid Executive. Germania will start a weekly service to Burgas (Bulgaria) in 2012. The airlines cover over 50 international destinations. The vast majority of the passenger volume at the airport is created by Low Cost Carriers (hereinafter "LCCs"). Ryanair's passenger share of total passengers at the airport amounts to [80-99] %. Ryanair has been present at the airport since its opening and has meanwhile made the airport to one of its German hubs by stationing seven of its aircrafts permanently at the airport. (12) Until 2010, more than 50% of the airport's passengers came from the Netherlands, the rest stem mainly from the surrounding German and partially also Belgian regions. During 2011, the share of Dutch passengers dropped to around 40%. 2.2. Development of the Ownership and Management of the Airport 2.2.1. Development of the Ownership of the Airport (13) The airfield was founded 1954 by the Royal Airforce for military purposes. In the beginning of the 1990ies, the Royal Airforce announced its retreat by 1999. In view of the expected loss of some 400 civilian jobs, the Kreis Kleve and the municipality of Weeze in 1993 established the Flughafen Niederrhein GmbH (hereinafter "FN GmbH") to manage a conversion of the former military airfield for subsequent civilian use. 2 Marking of a Business Secret in the sense of the Commission communication C(2003) 4582 of 1 December 2003 on professional secrecy in State aid decisions (OJ C 297 of 9.12.2003, p. 6). 3 (14) FN GmbH was registered in 1993 as a company under private law, with an equity capital of 50 000 DM (=25 564 EUR). The founding shareholders were the Landkreis Kleve (52%) and the municipality of Weeze (48%). FN GmbH was created in order to develop new economic activities and user concepts for the airport area, especially for the future private operation of the airport. From the very first, the Landkreis Kleve and the municipality of Weeze planned a private operation of the airport. To reach this aim, four steps were foreseen: a. Finding of the private investor who should be responsible for the preparation and the operation of the airport b. Permission decision concerning the conversion into a traffic airport for civil use c. Conclusion of a treaty with the Netherlands concerning the use of the Dutch air space d. Purchase of the area from the federal government (15) The Royal Airforce finally transferred the property of the airport on 30 November 1999 to the German Federal Government. (16) The Kreis Kleve and the municipality of Weeze planned to create a civilian airport (Euroregionales Zentrum für Luftverkehr, Logistik und Gewerbe) on the former military airfield. To this end, on 16.12.1999, they founded the Entwicklungs- und Erschließungsgesellschaft Laarbruch GmbH (hereinafter "EEL GmbH"), in order to manage the airport real estate on a daily basis. 52 % of the shares in EEL GmbH are held by the administrative district of Kleve and 48 % of the shares by the municipality of Weeze. (17) Germany underlines that the tasks of EEL GmbH were different than the tasks of FN GmbH. While the FN GmbH was created to realise the above-mentioned four issues, the EEL should in particular administer the facilities between the close down of the military airport in 1999 and the purchase of a private investor. (18) In this regard, EEL GmbH should prepare the technical and infrastructural facilities of the former military airport estate with regard to a prospective subsequent commercial use of the site (Euroregionales Zentrum für Luftverkehr, Logistik und Gewerbe) and manage the real estate on a daily basis. (19) Following the authorisation by the Land Nordrhein-Westfalen on 23.8.2000 of the military airfield conversion plan submitted by the Kreis Kleve and the municipality of Weeze and the granting of a license to operate a civilian airport to FN GmbH by the Bezirksregierung Düsseldorf on 20.6.2001,3 the privatisation of the airport operation and real estate took place in two steps: 3 Stakeholders introduced more than 1 000 caveats against the granting of the opearing license to FN GmbH. Accordingly, it took until 1.5.2003 until the flight operation commenced. However, in 2006, the operating license was subsequently legally challenged creating legal uncertainty for the airport operations. It took until the 1.2.2007 to settle the issue, when the Bundesverwaltungsgericht took a final decision in favour of the flight operation at the airport. Full legal compliance was achieved with an amendment to the operating licence issued by the regional authorities on 1.5.2009. 4 a. Step 1: Per 1.7.2001 the public shareholders withdrew from FN GmbH and 99.261 % of the shares of FN GmbH were sold for EUR 1.02 million from the Landkreis Kleve and the municipality Weeze to a private investor, the Airport Niederrhein Holding GmbH, hereinafter "ANH GmbH").