EN Official Journal of the European Union C 287/10

Invitation to submit comments pursuant to Article 1(2) in Part I and Article 6(1) in Part II of Protocol 3 to the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice on the alleged aid to Scandinavian Airlines through the new revolving credit facility

2013/C 287/07

By means of Decision No 259/13/COL of 19 June 2013, reproduced in the authentic language on the pages following this summary, the EFTA Surveillance Authority initiated proceedings pursuant to Article 1(2) in Part I and Articles 4(4) and 6(1) in Part II of Protocol 3 to the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice. The Norwegian authorities have been informed by means of a copy of the decision.

By means of this notice, the EFTA Surveillance Authority gives the EFTA States, EU Member States and interested parties notice to submit their comments on the measure in question within one month of the date of publication to:

EFTA Surveillance Authority Registry Rue Belliard/Belliardstraat 35 1040 Bruxelles/Brussel BELGIQUE/BELGIË

The comments will be communicated to the Norwegian authorities. The identity of the interested party submitting the comments may be withheld following a request in writing stating the reasons for the request. Having regard, inter alia, to Article 109(2) of the Agreement on the European Economic Area (‘EEA Agreement’), and to the parallel competence of the European Commission and the Authority in the present case, the Authority will also transmit any comments received to the European Commission, unless the interested party providing such comments has raised duly motivated objections to such transmission.

SUMMARY

Procedure

By way of a letter dated 5 February 2013, the EFTA Surveillance Authority (‘the Authority’) received a complaint from the European Low Fares Airline Association (‘ELFAA’) regarding the participation of Norway, Sweden and Denmark in a revolving credit facility (‘new RCF’) in favour of Scandinavian Airlines (‘SAS’).

In a letter dated 18 February 2013, the Authority invited the Norwegian authorities to submit their comments on the complaint and on the allegations of unlawful State aid. The Norwegian authorities replied with a letter dated 25 March 2013. They also provided additional information by way of a letter dated 6 June 2013.

Assessment of the measure

In recent years, SAS has been reliant on external credit facilities with a view to supporting its financial preparedness. In this regard, SAS had a revolving credit facility in place since December 2006 (‘the old RCF’), which was exclusively provided by a number of lender banks. The old RCF was due to expire in June 2013. Following some negotiations, the banks accepted a new RCF in November 2012 that would be set up jointly with the four largest shareholders — Norway, Sweden and Denmark (‘the States’) together with the main private shareholder, the Knut and Alice Wallenberg Foundation (‘KAW’).

Further to the above, 50 % of the new RCF is provided by the States in proportion to their shareholding in SAS and the remaining 50 % is provided by KAW together with the existing lender banks involved in the old RCF (with the exception of one bank). The States and KAW participate in the new RCF on the same terms as the banks.

The Authority has assessed whether the establishment of the new RCF conferred an undue economic advantage on SAS and considers that the pari passu principle may not apply since the participation of the public authorities in the new RCF was not replicated by any private investor. In this respect, the bank lenders have roughly halved their contribution to the new RCF (compared to the old RCF) and the Authority cannot exclude that the private lenders’ participation was influenced by considerations related to their existing credit exposure to SAS under the old RCF, as well as by the States’ participation in the new RCF, rather than by prospects of profitability as such.

The Authority has also examined whether the participation of the States in the new RCF could be considered acceptable to a private investor operating in a market economy. In this respect, the Authority has doubts whether the relevant business plan and accompanying returns analysis, which constitute the basis for the States’ participation, are sufficiently sound to induce a private investor to participate in the new RCF.

Furthermore, insofar as the new RCF constitutes State aid within the meaning of Article 61(1) of the EEA Agreement, the Authority has doubts regarding its compatibility with the exceptions laid down in Article 61(2) and (3) of the EEA Agreement. The conditions for rescue and restructuring aid laid down in the Authority’s Guidelines on State aid for rescuing and restructuring firms in difficulty do not appear to be met.

Conclusion

In light of the above considerations, the Authority cannot conclude at this stage that the participation of the States in the new RCF is provided on market terms. It therefore cannot exclude an undue advantage in favour of SAS potentially amounting to State aid within the meaning of Article 61(1) of the EEA Agreement. Furthermore, insofar as the new RCF constitutes State aid within the meaning of Article 61(1) of the EEA Agreement, the Authority has doubts regarding its compatibility with the EEA Agreement.

Therefore, the Authority has decided to open the formal investigation procedure in accordance with Article 1(2) in Part I and Articles 4(4) and 6(1) in Part II of Protocol 3 to the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice. Interested parties are invited to submit their comments within one month from publication of this notice in the Official Journal of the European Union.