EUROPEAN COMMISSION Brussels, 21.03.2012 C(2012) 1664 final 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 WORKING LANGUAGE down detailed rules for the application of Article 93 of the EC Treaty, concerning non-disclosure of information This document is made available for covered by professional secrecy. The omissions are information purposes only. shown thus […]. COMMISSION DECISION of ON THE STATE AID No SA.29864 (C 6/2010, ex NN 1/2010, CP 371/2009) Implemented by the Czech Republic for České aerolinie, a. s. (ČSA – Czech Airlines a. s. - possible State aid implications of a loan provided by Osinek a. s.) (Only the Czech version is authentic) (Text with EEA relevance) Commission européenne, B-1049 Bruxelles / Europese Commissie, B-1049 Brussel - Belgium. Telephone: (32-2) 299 11 11 COMMISSION DECISION of ON THE STATE AID No SA.29864 (C 6/2010, ex NN 1/2010, CP 371/2009) Implemented by the Czech Republic for České aerolinie, a. s. (ČSA – Czech Airlines a. s. - possible State aid implications of a loan provided by Osinek a. s.) (Only the Czech version is authentic) (Text with EEA relevance) THE EUROPEAN COMMISSION, Having regard to the Treaty on the Functioning of the European Union, and in particular the first subparagraph of Article 108(2) thereof, Having regard to the Agreement on the European Economic Area, and in particular Article 62(1)(a) thereof, Having regard to the decision by which the Commission decided to initiate the procedure laid down in Article 108(2) TFEU,1 in respect of the aid SA.29864 (C 6/2010, ex NN 1/2010, CP 371/2009)2, Having called on interested parties to submit their comments pursuant to the provisions cited above, and having regard to their comments, Whereas: 1. PROCEDURE (1) In May 2009, on the basis of publicly available information, the Commission learned that a state-owned company Osinek a.s., in liquidation (hereinafter referred to as "Osinek"), had agreed to grant a loan amounting to CZK 2.5 billion (approx. EUR 100 million) to ČSA – Czech airlines, a. s. (hereinafter referred to as "ČSA"). The Commission requested information from the Czech Republic by letters dated 14 May 2009 and 24 September 2009. 1 With effect from 1 December 2009, Articles 87 and 88 of the EC Treaty have become Articles 107 and 108, respectively, of the Treaty on the Functioning of the European Union ("TFEU"). The two sets of provisions are, in substance, identical. For the purposes of this Decision, references to Articles 107 and 108 of the TFEU should be understood as references to Articles 87 and 88, respectively, of the EC Treaty where appropriate. The TFEU also introduced certain changes in terminology, such as the replacement of "Community" by "Union" and "common market" by "internal market". The terminology of the TFEU will be used throughout this Decision. 2 Commission Decision C(2010)987 final of 24 February 2010 (OJ C 43, 11.2.2011, p. 6). 2 The Czech Republic provided the Commission with further information by letters dated 10 September 2009 and 25 November 2009. (2) By letter dated 24 February 2010, the Commission informed the Czech Republic that it had decided to initiate the procedure laid down in Article 108(2) TFEU in respect of the measure (hereinafter "the opening decision"). The Czech Republic provided comments on that decision by letter dated 26 April 2010. The Commission asked further questions by letter dated 6 July 2010, to which the Czech Republic replied on 15 September 2010. (3) The opening decision was published in the Official Journal of the European Union. The Commission invited interested parties to submit their comments on the measure. (4) The Commission received comments from four interested parties: Travel Service and Icelandair Group on 10 March 2011, Czech Connect Airlines a. s. on 11 March 2011, JOB AIR Technic a. s. on 10 March 2011, and ČSA on 14 March 2011. The Commission forwarded these comments to the Czech Republic, which was given the opportunity to reply; the latter's comments were received by letter dated 12 May 2011. 2. DETAILED DESCRIPTION OF THE MEASURE 2.1 Osinek loan (5) The measure under investigation is a loan granted on 30 April 2009 by Osinek, in liquidation, to the Czech national flag carrier ČSA. The loan was disbursed in three tranches: (a) the first tranche of CZK 800 million was drawn on 11 May 2009; (b) the second tranche of CZK 900 million was drawn on 30 July 2009; and (c) the third tranche of CZK 800 million was drawn on 24 September 2009. (6) The expected date of repayment was 30 November 2010, with possible prolongation. The interest rate was 3-months Prague Inter Bank Offered Rate (hereinafter "PRIBOR") + 300 basis points as a risk premium, i.e. 5.51% at the date of signing the loan agreement. Interest was due on a quarterly basis on the last business day of a calendar quarter (interest period). Interest was calculated daily from the day preceding the repayment of the Osinek loan. (7) According to the Czech authorities, the risk margin of 300 basis points correctly reflects an appropriate risk margin for the financial situation of the company a Standard & Poor's B rating – weak financial situation) (hereinafter ´B´ rating") and the level of collateralization of the loan, which amounted to 110% of the loan amount. (8) The collateral used to secure the loan consisted of buildings located at Prague Ruzyně airport, land, inventories and spare parts. The market value of most of the collaterals was established by an independent expert. Four addendums to the Osinek loan agreement were concluded, by which the collateral assets were extended and 3 modified.3 The Czech authorities argue that all these changes respected the condition stipulated in the Osinek loan agreement, i.e. that the actual loan amount must not exceed 90% of the value of the collaterals at any point of time or the agreed maximum loan amount. (9) The Osinek loan was not repaid as initially foreseen, instead it was de-collateralized and the debt was swapped into equity on 30 June 2010. Table 1: Overview of Osinek loan collaterals Collateral Value in CZK (in millions) Value determined by Period of use Operational building - Hangar F (including land YBN Consult - Znalecký ústav s.r.o., from 11/5/2009 (1st under the building) [925 - 990]* Expert opinion of 1 June 2009 tranche) from 30/7/2009 (2nd Administrative building tranche) until 9/12/2009 "APC"(including land YBN Consult - Znalecký ústav s.r.o., (cancelled by 3rd under the building) [735 - 770] Expert opinion of 5 July 2009 Addendum) Spare parts (rotating spare parts and/or Valuation based on net book value at from 24/9/2009 (3rd replacement engines) [150 - 165] 30/9/2009 tranche) Spare parts (rotating, from 24/9/2009 (3rd type A310 (all) and Valuation based on net book value at tranche) until 25/1/2010 Boeing [520 - 575] 30/9/2010 (4th Addendum) from 23/7/2009 (1st Land around the "APC" YBN Consult - Znalecký ústav s.r.o., Addendum) until administrative building [60 - 65] Expert opinion of 5 July 2009 25/1/2010 (4th Addendum) Land around and YBN Consult - Znalecký ústav s.r.o., from 23/7/2009 (1st adjacent to Hangar F [105 - 115] Expert opinion of 5 July 2009 Addendum) Spare parts, type: from 23/7/2009 (1st A319/320 [265 - 290] Based on net book value Addendum) Spare parts, type: A310, from 22/9/2009 (2nd ATR and Boeing [440 - 485] Based on net book value Addendum) YBN Consult - Znalecký ústav s.r.o., from 22/9/2009 (2nd Flight simulator [155 - 170] Expert opinion of 10 September 2009 Addendum) 1 Boeing 737-55s, registration mark: OK YBN Consult - Znalecký ústav s.r.o., from 9/12/2009 (3rd CGK [140 - 155] Expert opinion of 7/12/2009 Addendum) 2 Boeing 737-55s, from 9/12/2009 (3rd registration marks: OK YBN Consult - Znalecký ústav s.r.o., Addendum) until CGH, OK CGJ [300 - 330] Expert opinion of 7/12/2010 25/1/2010 (4th Addendum) PROSCON - s.r.o., Expert opinion of from 9/12/2009 (3rd IT [80 - 85] 30/11/2009 Addendum) "ČSA CZECH AIRLINES" Vladimir Cmejla, Expert opinion of from 9/12/2009 (3rd trademark [140 - 155] 30/11/2009 Addendum) ČSA's share in ČSA PROSCON - s.r.o., Expert opinion of from 25/1/2010 (4th Support, s.r.o. [790 - 865] 20/1/2010 Addendum) 3 First Addendum was concluded on 23 July 2009, Second on 22 September 2009, Third on 9 December 2009, Fourth on 25 January 2010. * Business secret. 4 2.2 Scope of this decision (10) The opening decision dated 24 February 2010 refers to the Osinek loan of CZK 2.5 billion on the basis of the loan agreement concluded on 30 April 2009 and assumes that the de-collateralization of the loan on the basis of Czech government Resolution of 26 October 2009, No 1343 had already been carried out. However, the de-collateralization of this loan and its capitalization (debt-to-equity swap) was notified to the Commission on 12 May 2010 (SA.30908 ČSA - Czech Airlines - Restructuring plan) and implemented in June 2010. Therefore, this decision deals only with the Osinek loan of CZK 2.5 billion on the basis of the loan agreement concluded on 30 April 2009 as such.