**Avis juridique important**

*|*

# 52002XC0202(06)

**State aid — Ireland — Aid C 78/2001 (ex NN 22/01) — Exemption from excise duty on mineral oils used as fuel for alumina production in the Shannon region — Invitation to submit comments pursuant to Article 88(2) of the EC Treaty (Text with EEA relevance)***Official Journal C 030 , 02/02/2002 P. 0025 - 0028*

State aid - Ireland

Aid C 78/2001 (ex NN 22/01) - Exemption from excise duty on mineral oils used as fuel for alumina production in the Shannon region

Invitation to submit comments pursuant to Article 88(2) of the EC Treaty

(2002/C 30/07)

(Text with EEA relevance)

By means of the letter dated 30 October 2001, reproduced in the authentic language on the pages following this summary, the Commission notified Ireland of its decision to initiate the procedure laid down in Article 88(2) of the EC Treaty concerning the abovementioned aid.

Interested parties may submit their comments on the aid in respect of which the Commission is initiating the procedure within one month of the date of publication of this summary and the following letter, to: European Commission Directorate-General for Competition

State Aid Registry

B - 1049 Brussels Fax (32-2) 296 12 42.

These comments will be communicated to Ireland. Confidential treatment of the identity of the interested party submitting the comments may be requested in writing, stating the reasons for the request.

SUMMARY

Facts

Article 6 of Council Directive 92/82/EEC(1), establishes a minimum rate of excise duty on heavy oil of ECU 13 per 1000 kg. The excise duty applied by Ireland to industrial heavy oil is EUR 13,46 per 1000 kg (accrued by VAT of 12,5 %) which is slightly above the minimum rate.

However, based on the authorisation granted by Article 1 of Council Decisions 92/510/EEC(2), 97/425/EC(3), 1999/880/EC(4) and 2001/224/EC(5), Ireland exempts from the excise duty the mineral oils used as fuel for alumina production in the Shannon region. According to the fifth recital of the said Council Decision 2001/224/EC, "this decision shall be without prejudice to the outcome of any procedures relating to distortions of the operation of the single market that may be undertaken, in particular under Articles 87 and 88 of the Treaty. It does not override the requirement for Member States to notify instances of potential State aid to the Commission under Article 88 of the Treaty".

Alumina is a white powder principally used in smelters to produce aluminium.

Within the EU, alumina is produced in Ireland, France, Italy, Germany, Greece, Spain and the United Kingdom. Energy is one very important cost item in alumina production (about 20 % of total costs). Except in Germany where gas is used as fuel, the plants in all the other countries use mineral oils.

There is only one producer of alumina in Ireland, Aughinish Alumina Ltd, which is located in the Shannon region and which belongs to the Glencore group(6). It has 430 employees and produces around 1,5 million tonnes of alumina which is exported mainly to the rest of the European Union.

In 1998, Irish exports of alumina to the rest of the EU amounted to 713000 tonnes (51 % of production) and to 778000 tonnes (54 % of production) in 1999.

The Irish Government requested the derogation to the minimum rate for excise duty in 1992 on the grounds that the plant was located in a relatively underdeveloped area and that, since it used heavy oil as an energy source, it could not compete with other countries' industries having lower tax rates on fuel and possibly also using lower or non-taxed natural gas or other energy sources.

Assessment

The exemption from excise duty in point constitutes State aid within the meaning of Article 87(1) of the EC Treaty since it confers an advantage to its beneficiary which is financed through State resources and which only applies to certain undertakings or regions. It distorts competition and, since alumina is exported from Ireland to the rest of the EU, intra-community trade is affected.

As for its compatibility with the common market, the Commission has doubts that the exemption fulfils the conditions established in the guidelines on national regional aid(7) for operating aid (points 4(15) and 4(17)), since the Irish authorities have not demonstrated the existence of particular handicaps nor gauged their importance in order to justify the granting of operating aid and the aid is neither limited in time nor progressively reduced.

Similarly, the Commission considers that the conditions established in point 3(4) of the Community guidelines on State aid for environmental protection in force between March 1994 and February 2001(8) (they should only compensate for extra production costs and be temporary and in principle degressive) as well as those in point 53 of the current guidelines(9) (limited duration of five years progressively reduced (point 45) or non-degressive but limited to 50 % of the extra costs (point 46)) do not appear to be met.

In the light of the foregoing, the Commission has decided to initiate the procedure laid down in Article 88(2) of the EC Treaty against it.

TEXT OF THE LETTER

"The Commission wishes to inform Ireland 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 88(2) of the EC Treaty.

1. FACTS

(1) Article 6 of Council Directive 92/82/EEC(10) establishes a minimum rate of excise duty on heavy oil of ECU 13 per 1000 kg. The excise duty applied by Ireland to industrial heavy oil is EUR 13,46 per 1000 kg (accrued by VAT of 12,5 %) which is slightly above the minimum rate.

(2) However, based on the authorisation granted by Article 1 of Council Decisions 92/510/EEC(11), 97/425/EC(12), 1999/880/EC(13) and 2001/224/EC(14), Ireland exempts from the excise duty the mineral oils used as fuel for alumina production in the Shannon region. According to the fifth recital of the said Council Decision 2001/224/EC, 'this decision shall be without prejudice to the outcome of any procedures relating to distortions of the operation of the single market that may be undertaken, in particular under Articles 87 and 88 of the Treaty. It does not override the requirement for Member States to notify instances of potential State aid to the Commission under Article 88 of the Treaty'.

(3) Alumina is a white powder principally used in smelters to produce aluminium. It is produced out of bauxite ore by a refining process, the last step of which consists of calcination. More than 90 % of the calcined alumina will be used in the smelting of aluminium metal. The remainder is further processed and used in chemical applications. In several merger decisions(15), the Commission has found that there are two separate product markets: smelter grade alumina (SGA) and chemical grade alumina (CGA). While the geographical market for SGA is worldwide, that for CGA is not wider than Europe.

(4) Within the EU, alumina is produced in Italy, France, Ireland, Germany, Greece, Spain and the United Kingdom. Energy is one very important cost item in alumina production (about 20 % of total costs). Except in Germany where gas is used as fuel, the plants in all the other countries use mineral oils.

(5) There is only one producer of alumina in Ireland, Aughinish Alumina Ltd, which is located in the Shannon region and which belongs to the Glencore group(16). It has 430 employees and produces around 1,5 million tonnes of alumina which is exported mainly to the rest of the European Union.

(6) Aughinish Alumina Ltd's consumption of heavy fuel oil amounted to 328000000 kg in 1998 and 336000000 kg in 1999.

(7) In 1998, Irish exports of alumina to the rest of the EU amounted to 713000 tonnes (51 % of production) and to 778000 tonnes (54 % of production) in 1999.

(8) The Irish Government requested the derogation to the minimum rate for excise duty in 1992 on the grounds that the plant was located in a relatively underdeveloped area and that, since it used heavy oil as an energy source, it could not compete with other countries' industries having lower tax rates on fuel and possibly also using lower or non-taxed natural gas or other energy sources.

2. ASSESSMENT

(9) In accordance with Article 6(1) of Council Regulation (EC) No 659/1999 of 22 March 1999, the decision to initiate proceedings shall summarise the relevant issues of fact and law, shall include a preliminary assessment from the Commission as to the aid character of the proposed measure, and shall set out the doubts as to its compatibility with the common market.

(10) As for the nature of State aid of the measure within the meaning of Article 87(1) of the EC Treaty, the following considerations apply:

(11) It is clear that the exemption from excise duty in point confers an advantage to its beneficiary which is placed in a more favourable financial position than the other undertakings that use mineral oils in other industries or regions.

(12) It is also evident that the exemption is financed through State resources, since the State foregoes a certain amount of money that otherwise it would collect.

(13) The exemption only applies to certain companies (those producing alumina) located in one specific region (the Shannon region). It favours therefore certain undertakings or the production of certain goods within the meaning of Article 87(1). Moreover, there is only one company producing alumina in the Shannon region, Aughinish Alumina Ltd.

(14) As seen above, alumina is exported from Ireland to the rest of the EU. Intra-community trade is therefore affected.

(15) The exemption of excise duties for the heavy oil used in Aughinish Alumina Ltd's production of alumina reduces the cost of an important input, giving it an advantage over other EU producers of alumina in the EU, and is therefore liable to distort competition.

(16) As for its compatibility with the common market, neither the exceptions of Article 87(2) nor those contained in the exemption regulations(17) apply in the present case.

(17) As for the possible applicability of other exceptions under Article 87(3), the following considerations apply:

(18) Since the aid reduces Aughinish Alumina Ltd's current expenses, it constitutes operating aid which is normally prohibited.

(19) Nevertheless, according to point 4(15) of the guidelines on national regional aid(18), operating aid may exceptionally be granted in regions eligible under the derogation in Article 87(3)(a) provided that it is justified in terms of its contribution to regional development, and that its nature and its level is proportional to the handicaps it seeks to alleviate. In any case, it is for the Member State to demonstrate the existence of any handicaps and gauge their importance (point 4(15)) and operating aid must be both limited in time and progressively reduced (point 4(17)).

(20) These conditions do not appear to be met in the present case. Although the Shannon region has lost its 87(3)(a) status as a result of the review of the regional map in 1999 and could, exceptionally, benefit from operating aid until the end of 2001, the Irish authorities have not demonstrated the existence of particular handicaps nor gauged their importance in order to justify the granting of operating aid. Moreover, it appears that the exemption in point is neither limited in time nor progressively reduced. The Commission considers that a period of 23 years (from 1983 until the end of 2006 if Ireland so wishes since unanimity is required to shorten that deadline) is too long a period to be considered 'limited'. On the other hand, there is no progressive reduction of the advantage.

(21) Operating aid is also contemplated in the Community guidelines on State aid for environmental protection when it adopts the form of tax relief from environmental taxes(19).

(22) Originally, excise duties on mineral oils were not designed as an instrument of environmental policy. However, the Commission has acknowledged in its Communication on environmental taxes and charges in the single market(20), that 'one likely feature for a levy to be considered as environmental would be that the taxable base of the levy has a clear negative effect on the environment'. As mineral oils have a clear negative effect on the environment, excise duties on mineral oils could be considered as environmental taxes for the purposes of the application of the environmental guidelines.

(23) In any case, at this stage of the procedure, the conditions established in the Community guidelines for environmental protection do not appear to be met. According to point 3(4) of the Community guidelines on State aid for environmental protection in force between March 1994 and February 2001(21), operating aid in the form of relief from environmental taxes should only compensate for extra production costs and be temporary and in principle degressive. Similarly, according to point 53 of the current guidelines, 'when the reductions concern a tax that has been harmonised at Community level and when the domestic tax is lower or equal to the Community minimum, the Commission takes the view that long-term exemptions are not justified'. In this case, any exemptions granted are subject to a limited duration of five years where the aid is degressive (point 45) or non-degressive but limited to 50 % of the extra costs (point 46). In the present case, the Commission notes that the period of five years is exceeded and that the aid has not been neither progressively reduced nor limited to extra costs.

(24) The Commission will take duly into account the fact that the decision adopted by the Council on 12 March 2001, on the basis of a Commission proposal, has extended the derogation in point. In this regard, the Commission states that this Council decision is without prejudice of the application of the State aid rules.

3. CONCLUSION

(25) In the light of the foregoing considerations, the Commission, has doubts that the aid in question fulfils the criteria for declaring its compatibility with the common market. It has therefore decided to initiate the procedure laid down in Article 88(2) of the EC Treaty against it.

(26) The Commission accordingly requests Ireland to submit its comments and to provide all such information as may help to assess the measure, within one month of the date of receipt of this letter. It requests your authorities to forward a copy of this letter to the potential recipient of the aid immediately.

(27) The Commission warns Ireland that it will inform interested parties by publishing this letter and a meaningful summary of it in the Official Journal of the European Communities. It will also inform interested parties in the EFTA countries which are signatories to the EEA Agreement, by publication of a notice in the EEA Supplement to the Official Journal of the European Communities and will inform the EFTA Surveillance Authority by sending a copy of this letter. All such interested parties will be invited to submit their comments within one month of the date of such publication".

(1) OJ L 316, 31.10.1992, p. 19.

(2) OJ L 316, 31.10.1992, p. 16.

(3) OJ L 182, 10.7.1997, p. 22.

(4) OJ L 331, 23.12.1999, p. 73.

(5) OJ L 84, 23.3.2001, p. 23.

(6) Glencore is a diversified resources group with worldwide activities in the mining, smelting, refining, processing and trading of minerals and metals, energy products and agricultural products. Its turnover in 2000 was USD 48 billion.

(7) OJ C 74, 10.3.1998, p. 9.

(8) OJ C 72, 10.3.1994, p. 3.

(9) OJ C 37, 3.2.2001, p. 3.

(10) OJ L 316, 31.10.1992, p. 19.

(11) OJ L 316, 31.10.1992, p. 16.

(12) OJ L 182, 10.7.1997, p. 22.

(13) OJ L 331, 23.12.1999, p. 73.

(14) OJ L 84, 23.3.2001, p. 23.

(15) See, for instance, Case COMP/M.1693 - Alcoa/Reynolds.

(16) Glencore is a diversified resources group with worldwide activities in the mining, smelting, refining, processing and trading of minerals and metals, energy products and agricultural products. Its turnover in 2000 was USD 48 billion.

(17) Commission Regulation (EC) No 70/2001 of 12 January 2001; Commission Regulation (EC) No 68/2001 of 12 January 2001.

(18) OJ C 74, 10.3.1998, p. 9.

(19) OJ C 37, 3.2.2001, p. 3.

(20) COM(97) 9 final of 26 March 1997.

(21) OJ C 72, 10.3.1994, p. 3.