The Leipzig-Halle decision
and its implications for publicly funded
infrastructure projects
Lorraine Lee
Scottish Government
State Aid Unit
Overview
•
•
•
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Leipzig-Halle decision.
Analytical Grids.
Market Economy Investor Principle (MEIP).
EC communication on the setting of reference
and discount rates.
• GBER article 55 – Aid for sport and
multifunctional recreational infrastructure.
• GBER Article 56 – Investment aid for local
infrastructure.
Infrastructure
Overview of the Leipzig-Halle Decision
• Historically MS considered financing of
infrastructure was out-with scope of state aid.
• Infrastructure was not regarded as an economic
activity but a matter for regional and economic
policy.
• Construction and future operation seen as tasks
within public realm.
• Leipzig-Halle ruling made clear that
interpretation no longer applied.
Overview of the Leipzig-Halle Decision
• German authorities invested €350m at LH airport for the
construction of a new runway and gave exclusive use to
DHL.
• Authorities notified to EC for legal certainty on basis of
MEIP.
• EC and ECJ ruled that investment did not meet MEIP,
that aid did exist but that it was compatible.
• Ruling confirmed that infrastructure constructed for later
economic use is subject to state aid assessment.
• Also confirmed that some activity shall be considered
typical tasks of the State acting as a public authority and
compatible e.g. Safety, security.
Overview of the Leipzig-Halle Decision
Leipzig Halle ruling confirmed two legal principles;
1. That the State can be regarded as an ‘undertaking’
when it operates in a commercial market and/
2. Infrastructure constructed for later economic use
are subject to state aid rules.
Analytical Grids
• DG Comp note to DG Regio on application of ruling and when
notification is required.
• Construction or operation of infrastructure cannot be disassociated
when assessing the presence of state aid.
• Distinction made between activities that are typically reserved for the
State (non-economic) and those that are not (economic).
• Not commercially exploitable – public roads/motorways, parks…
• Airports - police, customs, air traffic control, security.
• Ports - as above, breakwaters, locks, navigable channels, dredging.
Market Economy Investor
Principle (MEIP)
• Investment by public authorities under the same terms and
conditions that would be acceptable to a private investor operating
under normal market conditions will be free from aid.
Can be met by;
• significant private co-investment – proves its attractive
investment, shares risk, invests on same terms and conditions –
pari passu.
• an ex-ante business plan – has to be robust, appropriate rate of
return, factors in all potential future costs and revenues, supported
by industry experts
• Requires separation of accounts
Market Economy Investor Principle
Principle
Public investor
Not relevant:
• Policy objectives
• Employment
• Training
• Environment
Private investor
Enterprise
Relevant
• Profit
• Risk-averse
• Better than alternative
• Return on investment
Leipzig-Halle MEIP case
German Authorities
Public shareholders
Not relevant:
• Regional development
• Job creation
• Accessibility of region
• Noise reduction
Leipzig – Halle
Airport
Private investor
Relevant
• Poor ex-ante business plan.
• High risk
• Low return on investment
EC Communication on the setting of
reference and discount rates
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•
•
•
•
No aid if State offer market conform loans.
Establish a market rate. Investigate similar
transactions.
If market rate found this is rate to be applied to
avoid presence of aid.
If no market equivalent available use the EC
method for setting the reference and discount rates.
1.9.2014 – UK – rate – 0.88%
Plus
Margins applied in principle depending on the rating
of the undertaking concerned and the collateral
offered.
Private lender/creditor
High
Normal
Low
Strong (AAA-A)
60
75
100
Good (BBB)
75
100
220
Satisfactory (BB)
100
220
400
Weak (B)
220
400
650
Bad (CCC)
400
650
1,000
Commercial Loans
BBB rating and Normal collateral = Margin of 100.
EC reference rate = 0.88%
Proxy for market rate = 1.88%
Sub - Commercial Loans
Loan of £300,000
Market/Proxy Rate - 4% =
Rate offered 2% =
Difference/State aid
=
Cover by De minimis
Interest
£12,000
£ 6,000
£ 6,000
GBER Article 55
Aid for sport & multifunctional recreational
infrastructure
• Sport and recreational facilities (leisure parks and hotels
excluded).
• Access must be granted on a transparent
and non-discriminatory basis.
• At least 20% use by other users at market rates.
• Investment aid (for construction or upgrade of infrastructure).
The aid amount cannot exceed the difference between the
eligible costs and the operating profit.
• Operating aid. To assist the provision of services. The amount
cannot exceed the operating losses over the relevant period.
• Aid not exceeding €1m max aid can be set at 80%.
GBER Article 56
Investment aid for local infrastructures
• Infrastructure that contributes to improving business, consumer
environment, modernising and developing the industrial basis at a
local level.
• Excludes airport and port infrastructure.
• Access to be on an open, transparent and non-discriminatory basis
at market rates.
• Eligible costs are investment costs in tangible or intangible assets.
• Aid amount - the difference between the eligible costs and the
operating profit of the investment.
• German land redevelopment scheme – no aid. Re-notified scheme
following LH judgement.
• The Commission found that the development of land by local
authorities is part of their public tasks and therefore outside the
realm of EU state aid rules.
Publicly funded infrastructure projects
levels of aid
YES
NO AID
YES
OWNER
MEIP?
Non-economic?
OPERATOR
MEIP?
Non-economic?
NO
AID
• APPROVED
SCHEMES
• GBER
NO
• FRAMEWORKS
• TREATY
YES
END USER
Pays market
rates?
•SGEI
NO
•DE MINIMIS
Summary
• The future use of infrastructure determines the
presence of aid.
• Clarity provided on activities regarded as within
public remit and those out-with.
• Financing on MEIP is no aid,
– if business plan supports.
– Use of reference and discount rates for loan finance.
– Pari passu investment.
• Compatible aid using GBER articles 55 and 56.
• Assess aid at level of owner, operator and end
user.
Thank you