1999/272/EC: Commission Decision of 9 December 1998 on the measure planned by Austria for the clean-up of the Kiener Deponie Bachmanning landfill - (notified under document number C(1998) 4195) - (Only the German text is authentic) - (Text with EEA relevance)
Date: 1998-12-09
Institutions: European Commission
Subjects: Austria, State aid, public financing, redemption, storage of waste, waste management

27.4.1999

EN

Official Journal of the European Communities

L 109/51

COMMISSION DECISION

of 9 December 1998

on the measure planned by Austria for the clean-up of the Kiener Deponie Bachmanning
landfill

(notified under document number C(1998) 4195)

(Only the German text is authentic)

(Text with EEA relevance)

(1999/272/EC)

THE
COMMUNITIES,

COMMISSION

OF

THE

EUROPEAN

Having regard to the Treaty establishing the European
Community, and in particular the first subparagraph
of Article 93(2) thereof

The Commission’s decision was published in the
Official Journal of the European Communities (1). The
Commission called on interested parties to submit
their comments. The Commission received no such
comments.

Having regard to the Agreement on the European
Economic Area, and in particular Article 62(1)(a)
thereof,

2. DETAILED DESCRIPTION OF THE MEASURE

Having called on interested parties to submit their
comments pursuant to the abovementioned provisions,

The abandoned and contaminated Kiener Deponie
Bachmanning landfill is situated in Upper Austria. The
land is registered under No 345/2 in the land register
of 51101 Aichkirchen.

1. PROCEDURE

to

of

the

clean-up

part-finance

By letter dated 23 September 1997, Austria informed
the Commission that the province of Upper Austria
the
intended
contaminated Kiener Deponie Bachmanning landfill
site, which had been abandoned. By letter dated 20
the Commission requested further
October 1997,
received on 18
information. Austria’s
November 1997. Following a meeting in Brussels on
12 December 1997, the Commission wrote on 18
December 1997 requesting further information on
matters
that had still not been clarified. The
information was provided by Austria by letter dated
21 January 1998; the letter also contained formal
notification of
the
project by the Federal Government

the planned part-financing of

reply was

The landfill was operated by Kieba BaugmbH (in
liquidation), Unterseling 19, A-4672 Bachmanning
((cid:28)Kieba’) in the period from 1975 to 1983. Kieba is an
SME within the meaning of
the Commission
recommendation of 3 April 1996 concerning the
definition of small and medium-sized enterprises (2)
and is currently in the process of being wound up.
Kieba’s main shareholder was the late Herbert Kiener.

The current owner of the land is Atlas Immobilienver-
waltungsgmbH, Unterseling 19, A-4672 Bachmanning
((cid:28)Atlas’). Atlas was set up specifically in connection
with the contamination and was aware of it. Atlas is
an SME within the meaning of
the Commission
recommendation concerning the definition of small
and medium-sized enterprises. The main shareholder
was once again Mr Kiener.

The necessary permits for carrying out the clean-up
site are held by ASA
operation at

the landfill

By letter dated 22 April 1998,
the Commission
informed Austria that Article 93(2) proceedings were
being initiated on the notified measure.

(1) OJ C 201, 27.6.1998, p. 8.
(2) OJ L 107, 30.4.1996, p. 4.

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Official Journal of the European Communities

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Ober(cid:246)sterreich Holding GmbH ((cid:28)ASA’), which
specialises
land. ASA
in the decontamination of
belongs to the French group Electricite´ de France
(EDF) and is a large firm within the meaning of the
the
concerning
recommendation
Commission
definition of small and medium-sized enterprises.

The total costs of the clean-up are estimated at ATS
313,2 million (ECU 22,7 million). ASA applied to the
Federal Government on 22 May 1995 and to the
province of Upper Austria on 23 January 1996 for
public funding of the clean-up operation. The measure
is to be financed entirely by the State.

(a) The Federal Government undertook to provide
ATS 206,7 million (ECU 15,0 million) pursuant to
a decision taken on 12 June 1996 under the
assistance guidelines 1991 for the cleaning-up or
making safe of contaminated sites
((cid:28)assistance
guidelines 1991’) and concluded an assistance
agreement with ASA for
this purpose on 20
December 1996.

(b) The province of Upper Austria undertook to
provide ATS 106,5 million (ECU 7,7 million)
pursuant to a decision taken by the Government of
the province of Upper Austria on 7 November
1996 and concluded assistance agreements with
ASA for this purpose on 23 and 28 April 1997.

Payments will be made in the period from 1998 to
2000 on presentation of the invoices.

3. INITIAL COMMISSION POSITION

In the decision on the initiation of Article 93(2)
proceedings,
following
position:

the Commission took the

(a) Austria should have notified the planned State
funding as ad hoc, since it is doubtful whether the
assistance
Federal Government
guidelines 1991 in accordance with all
the
the
since
provisions
guidelines do not allow the province of Upper
Austria to grant funding.

contained

applied

therein

and

the

(b) The State funding can no longer confer any benefit
on Kieba, since the firm is in the process of being
wound up.

(d) The fee for ASA may confer an unjustified benefit
on the firm, since Austria has not sufficiently
demonstrated that
the fee matches the market
price.

(e) It is not clear whether any aid for Atlas and/or
ASA can be exempted on the basis of
the
derogations provided for in Article 92 of the EC
Treaty.

4. AUSTRIA’S POSITION

By letter, dated 14 July 1998, Austria stated its
position on the Commission’s decision to initiate
proceedings.

Austria again emphasised that
the pollution had
already resulted in dangerous contamination of the
groundwater and that a thorough decontamination
operation was urgently
supporting
the clean-up, Austria
evidence of
submitted in particular a report drawn up on 14 May
1998 by an expert in water resources, a report drawn
up on 22 April 1998 by an official expert
in
hydrochemistry and a report drawn up on 13 May
1998 by a medical expert.

the urgency of

required. As

Austria also pointed out
that State funding for
cleaning up contaminated sites was intended solely to
ensure environmental protection and not to provide
assistance for firms. The State funding provided by the
Federal Government and the province of Upper
Austria did not therefore constitute State aid within
the meaning of Article 92 of the EC Treaty. Even if
the aid was covered by the
this were the case,
assistance guidelines adopted in 1991.
It did not
matter whether the documents referred to in Article 4
the assistance guidelines 1991 had been
(3) of
submitted at
the time when the assistance was
approved. The stipulation in the assistance agreement
with the ASA that certain individual provisions of the
assistance guidelines 1991 did not apply had been
included for reasons of legal certainty and was in
accordance with the assistance guidelines 1991.
Austria also stated that, under the assistance guidelines
1991, up to 100 % of eligible clean-up costs could be
financed and that
the assistance
between the Federal Government and other public
bodies, in particular the province of Upper Austria,
was immaterial.

the sharing of

(c) The State

funding may indirectly confer an
unjustified benefit on Atlas in the form of an
increase in the value of the land and the saving of
decontamination costs.

Furthermore, Kieba and Atlas were financially not in a
position to assume even part of the clean-up measures.
It was also pointed out
the administrative
procedure took an average of ten years from the time

that

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Official Journal of the European Communities

L 109/53

when the authorities first took action until the time
when the clean-up measures were completed. Austria
had accordingly concluded an agreement with ASA on
the financing of the clean-up measures.

5. ASSESSMENT OF THE STATE MEASURE

The Commission based its assessment of the aid case
on the information provided by Austria by letter dated
14 July 1998.

As regards the legal instruments which Austria wished
to use in order to recover the clean-up costs from
Kieba, Atlas and their
shareholders, Austria had
submitted a legal opinion drawn up by two law firms
on 24 June 1998, which had concluded that
the
proposed legal measures offered good prospects of
success.

Austria also presented an extract from the register of
companies and demonstrated that Kieba was
in
liquidation. As is evident from the copy of a letter
from Kieba’s bankruptcy administrator, dated 11 May
1998, the end of the bankruptcy proceedings is not yet
in sight.

An extract form the register of companies was also
presented for Atlas. An assessment of Atlas’s financial
situation by a credit protection association was also
submitted. This
from the
showed that,
apart
site, Atlas had no other
contaminated landfill
explanations
significant assets. According to the
presented by Austria, Atlas had largely ceased its
business activity. Doubts were also expressed as to
whether Atlas could be held liable for cleaning up the
site. This assessment was confirmed in a legal opinion
drawn up by two law firms on 24 June 1998.

According to the explanations presented by Austria,
the relevant land is designated as grassland in the
Upper Austria Regional Planning Act (1) and the
land-use plan (Zl. 610-1/1996) of the municipality of
Aichkirchen. In Austria’s view,
it is to be assumed
that, once the clean-up operation has been successfully
completed, the land will be put to agricultural and
forestry
a
opinion
court-approved expert was submitted on this point, in
which the market value following the clean-up was
determined under a comparative value procedure on
the basis of the Land Valuation Act (2).

use. An

drawn

up

by

it

clear

also made

Austria
that ASA receives
remuneration for its services. In the report by two
court-approved experts on tendering and award
procedures, which it had attached, the remuneration
was deemed to be appropriate.

(1) LGBl. No 114/1993.
(2) BGBl. No 150/1992.

5.1. Notification obligations

Austria approved the State funding of the clean-up
measures on 12 July 1996 and concluded an assistance
agreement with ASA on 20 December 1996. The
funding was made available in accordance with the
assistance guidelines 1991.

The assistance guidelines 1991 were notified to the
EFTA Surveillance Authority on 2 March 1993 as an
existing scheme and registered by it under number
ESA 30-151. Under
Federal
the
Government can finance up to 100 % of clean-up
measures relating to contaminated sites. The scheme
expired when the Commission approved, by letter
dated 10 February 1997, the new assistance guidelines
for 1997. Accordingly, the assistance guidelines 1991
applied in the case at issue.

scheme,

the

However,
the time
the Commission notes that, at
when the Federal Government approved the financing
and signed the assistance agreement, the optimised
clean-up procedure had not yet been completed.
Agreements on such a procedure were signed on 17
and 18 June 1997 and on 14 July 1997. Under Article
4(3) of the assistance guidelines 1991, however, this
information should have been available when the
signed. Consequently,
assistance
Austria did not fulfil all the requirements provided for
in the existing aid scheme.

agreement was

could not

Furthermore, the assistance agreement between ASA
and the Federal Government excluded a number of
provisions contained in the assistance guidelines 1991.
Austria explained that
this had been necessary,
because the assistance agreement between ASA and
the Federal Government
impose any
obligations on Kieba and Atlas, since the two firms
had not been involved in the assistance agreement. In
the Commission’s view, however, the exclusion of such
provisions confers an advantage on the polluter Kieba
and the landowner Atlas. The assistance guidelines
1991 clearly impose certain obligations on landowners
and polluters. In effect, the Federal Government can
the
grant State funding under the scheme only if
polluter and landowner are prepared or are compelled
to fulfil the obligations provided for in the scheme.
However, since a number of provisions were excluded,
the Federal Government did not comply with all the

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Official Journal of the European Communities

27.4.1999

conditions laid down in the assistance guidelines 1991.

Furthermore, under the assistance guidelines 1991, the
province of Upper Austria is not allowed to provide
funding. Consequently, the financing measure of the
province of Upper Austria is not covered by this
existing scheme.

Since the Federal Government did not comply with all
the requirements laid down in the assistance guidelines
1991 and since the funding provided by the province
of Upper Austria is not covered by an existing or
approved scheme, Austria was obliged to notify the
planned State funding by the Federal Government and
the province of Upper Austria as ad hoc aid pursuant
to Article 93(3) of the EC Treaty. Austria did not
comply with this obligation.

5.2. Kieba

under

Austrian administrative law, and in particular the
Water Law Act (1)
the Federal Waste Management
Act (2) and the Industrial Code (3), contains a number
of different provisions on liability. At all events,
however,
provisions
applicable to contaminated landfills,
the polluter
(tortfeasor), namely the legal person whose activity
has led to the relevant hazard, bears the primary
responsibility. The polluter (tortfeasor) is deemed to be
either the operator of the landfill or the person who
abandoned it.

environmental

the

district

administrative

The Wels-Land
authority
(Bezirkshauptmannschaft) granted Keiba, on 29 May
1978 and on 22 May 1979 (Zl. Wa 1-16-1976) under
the Water Law Act, a licence to operate a household
and special waste landfill site. It was also Kieba which
abandoned the landfill. According to information
provided by Austria, there is abundant evidence that
the firm did not comply with the licences issued to it
either in terms of type of waste or in terms of the
period covered. Although the licence pursuant to the
Water Law Act expired on 31 December 1981
activities were continued, in all probability until April
or May 1983. According to the information provided
by Austria, Kieba is the only ascertainable polluter.

(1) BGBl. No 215/1959,

amended version BGBl. No

85/1997.

(2) BGBl. No 325/1990,

amended version BGBl. No

115/1997.

(3) BGBl. No 50/1974.

In accordance with Article 31(1) and Article 138(1) of
the Water Law Act, Article 32(1) of the Federal Waste
Management Act and Article 83(3) of the Industrial
Code,
the Austrian administrative authorities must
hold this undertaking primarily liable. They therefore
ordered Kieba as early as 9 August 1991 to clean up
the
site. Kieba successfully
appealed against this order on procedural grounds.

contaminated landfill

The Austrian authorities did not issue any further
order, nor did they intend to do so in the near future,
since the Wels regional court had initiated bankruptcy
proceedings against Kieba on 29 September 1996. The
estate of Kieba’s main shareholder, Herbert Kiener,
was also the subject of insolvency proceedings. No one
has so far taken possession of the inheritance.

that

The Commission notes
the Austrian Federal
Government and the province of Upper Austria, by
financing the clean-up, have assumed the obligations
of the polluter, Kieba. It must be borne in mind,
however, that Kieba is being wound up and no longer
exercises any business activity. Consequently, Kieba
can no longer derive any benefit
from the State
financing, and any benefit pursued in the past can no
longer affect trade between Member States.

For the rest, the Commission takes note of the fact
that Austria has undertaken to use all available legal
means to recover the costs of the clean-up from Kieba.
In order to reclaim improperly made payments, an
action on grounds of unjust enrichment
is to be
brought pursuant to Article 1042 of the Civil Code
and damages claimed pursuant to Article 1295.

5.3. Atlas

and the Federal Waste
The Water Law Act
Management Act contain provisions on the liability of
landowners. Austria doubts, however, that Atlas can
be made liable on the basis of these environmental
provisions. This conclusion is also drawn in the two
legal opinions.

The Commission would once again point out,
however, that Atlas was specially set up in connection
with the contamination and that Atlas was aware of
it. Furthermore,
there is a close shareholder link
between Kieba and Atlas. In the Commission’s view,
therefore, Atlas and Kieba are jointly and severally
therefore ASA
liable under a repayment order.
If
carries out
clean-up operation with State
assistance, the aid measure could confer a benefit on
Atlas, since it would not have to pay for the clean-up
costs.

the

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that

that,

according

The Commission notes
to the
information provided by Austria, the firm does not
carry out any significant business activity and might
indeed be
the
in difficulty. The danger
abovementioned benefit might distort competition is
therefore at present slight. However, the Commission
cannot rule out the possibility that a third party might
take over the shares in the firm and extend its business
activity to the point where trade between Member
States might be affected. State funding of the clean-up
operation by ASA would strengthen Atlas’s position
compared with competitors on the EEA market that
do not have the benefit of being able to carry out
clean-up operations on their contaminated sites free of
charge. Consequently, the Commission cannot rule out
the benefits accruing to Atlas
the possibility that
through State
in future distort
competition on the EEA market. With regard to Atlas,
the financing may constitute State aid
therefore,
within the meaning of Article 92(1) of the EC Treaty
and Article 61(1) of the EEA Agreement.

funding might

the

characteristics

Article 92(1) of the EC Treaty and Article 61(1) of the
EEA Agreement established the principle that aid
having
is
incompatible with the common market. Article 92(2)
and Article 92(3) of the EC Treaty and Article 61(2)
and Article 61(3) of the EEA Agreement specify which
types of aid may exceptionally be considered to be
compatible with the common market. In this instance,
it is evident that none of these derogations applies.

therein

out

set

The derogations provided for in Article 92(2) of the
EC Treaty and Article 61(2) of the EEA Agreement are
not applicable, since the aid is not aid having a social
character, granted to individual consumers, or aid to
make good the damage caused by natural disasters or
aid granted to the economy of certain areas of the
Federal Republic of Germany affected by the division
of Germany.

The derogations provided for in Article 92(3)(a) of the
EC Treaty and Article 61(3)(a) of the EEA Agreement,
and the regional derogations provided for in Article
92(3)(c) of the EC Treaty and Article 61(3)(c) of the
EEA Agreement are not
is
situated outside an assisted area.

since Atlas

relevant,

the Commission notes

As regards the derogations provided for in Article
92(3)(b) of the EC Treaty and Article 61(3)(b) of the
EEA Agreement,
the
relevant project does not fulfil the criteria which the
Commission normally apply to (cid:28)projects of common
European interest’ and that the aid is not intended to
remedy a serious disturbance in the economy of a
Member State.

that

The first part of the derogation provided for in Article
92(3)(c) of the EC Treaty and Article 61(3)(c) of the
EEA Agreement
the
development of
is not
applicable, since the aid is not intended to contribute
to the development of certain sectoral economic
activities.

concerning aid to facilitate
certain economic

areas

Similarly,
in Article
the derogations provided for
92(3)(d) of the EC Treaty and Article 61(3)(d) of the
EEA Agreement do not apply, since the aid is not
intended
heritage
to
conservation.

promote

culture

and

it

The Commission also notes that
is clearly not
compatible with the (cid:28)polluter pays’ principle enshrined
in Article 130r of the EC Treaty that a polluter should
sell his contaminated land to one of his firms in order
to avoid the clean-up costs, that the firm responsible
for the contamination should file for bankruptcy and
that the business activity should be carried on by the
newly established firm.

The Commission therefore considers that none of the
derogations apply in this case.

However, the Commission takes note of the fact that
Austria has undertaken to use all available legal means
to recover the costs of
the clean-up from Atlas.
Repayment of the clean-up costs by Atlas would, in
the Commission’s view, mean that the State funding of
the clean-up operation did not confer a benefit on
Atlas and that no State aid within the meaning of
Article 92 of the EC Treaty was involved.

5.4. ASA

29

ASA

1994,

December

the Environmental Protection Act (1)

On
Inerta
Abfallbehandlungs GmbH applied, on its own
initiative, for all the necessary permits under Article
for
32(4) of
carrying out the decontamination of the landfill site.
That Act had been notified to the EFTA Surveillance
Authority as an existing aid scheme. The permits
(UR-450000/323-1996) were issued on 22 February
1996 under the Waste Management Act and on 8
March 1996 under the Upper Austria Nature and
Countryside Protection Act. Subsequently, ASA took
Inerta
over
Abfallbehandlungs GmbH.

permits

issued

ASA

the

to

(1) BGBl. No 185/1993.

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27.4.1999

the

Austria concluded assistance agreements with ASA,
since ASA was
the only company that had the
necessary permits. The Commission notes, however,
that
agreements with ASA were
concluded without giving other Austrian or foreign
competitors
the
agreements. It must therefore be examined whether
the fee for ASA corresponds to the market price.

the opportunity of

tendering for

assistance

The Commission notes that ASA is not carrying out
the decontamination itself, but is acting as general
contractor with responsibility
and
coordinating the clean-up measures. For its services as
general contractor, ASA will receive a fee of ATS 37,3
million (ECU 2,7 million), which is included in the
overall clean-up costs of ATS 313,2 million (ECU 22,7
million).

for planning

Austria has provided evidence that the fee for ASA
was determined in accordance with the (cid:28)fee guidelines
for general contractors’, which in turn are based on
the regulations governing fees for project management
and the building industry. Austria has also shown that
under the agreement ASA will receive only 85 % of
the amount calculated in accordance with these
regulations. The opinions of
two court-approved
experts which have been submitted confirm that the
fee corresponds to the market price.

After careful examination of the information provided,
the Commission concurs with Austria’s view that ASA
will receive an appropriate fee for its planning and
coordination work and that the fee does not comprise
any aid component within the meaning of Article 92
of the EC Treaty.

out

that

point

the
The Commission would
investigations
into whether Austria complied with
Council Directive 92/50/EEC of 18 June 1992 relating
to the coordination of procedures for the award of
yet been
public
concluded. This Decision is wholly without prejudice
to the outcome of such investigations.

contracts (1) have not

service

the

carrying-out of

On the
clean-up work by
subcontractors, the Commission notes that, on the
basis of the conditions laid down in the assistance
required to apply Directive
agreements, ASA is
(cid:214)-Norm-A-2050 on the coordination of procedures
for the award of public service contracts. Austria has
provided a detailed list of the work to be performed
by subcontractors and has demonstrated that most of
the work to be carried out is being awarded through
procedures. The Commission
public

tendering

the remuneration for the
therefore concludes that
subcontractors does not
aid
component within the meaning of Article 92 of the EC
Treaty.

contain any

State

6. CONCLUSIONS

In view of the above assessment of the State funding
of the clean-up of the contaminated Kiener Deponie
Bachmanning landfill site, the Commission notes the
following:

(a) the polluter Kieba is in liquidation and no longer
pursues any business activity. Consequently, Kieba
from State
can no longer derive any benefit
financing;

(b) if ASA carries out the clean-up measures with State
assistance, this measure could confer a benefit on
Atlas, since the firm would then be spared the
clean-up costs. This would constitute State aid for
Atlas, for which none of the derogations provided
for in Article 92(2) and (3) of the EC Treaty is
the
applicable. Recovery and reimbursement of
clean-up costs by Atlas would exclude
the
possibility of the State funding constituting State
aid within the meaning of Article 92 of the EC
Treaty;

(c) the

for

firm responsible

the
contaminated
an
appropriate fee for its planning and coordination
work. The
aid
component.

cleaning
to

fee does not

up
receive

contain any

site, ASA,

is

the Federal Government

Consequently,
and the
province of Upper Austria may, in accordance with the
finance the clean-up measures in full,
notification,
subject
to the condition that Atlas reimburses the
clean-up costs. The clean-up costs must be reclaimed
in full
in accordance with national
procedures and legal provisions, with interest running
from the date of disbursement until such time as the
amount has been fully reimbursed, at the rate used as
net
calculating
for
rate
the
grant-equivalent of regional aid in Austria,

from Atlas

reference

the

HAS ADOPTED THIS DECISION:

Article 1

(1) OJ L 209, 24.7.1992, p. 1.

The planned State financing of the clean-up, at an
estimated cost of ATS 313,2 million (ECU 22,7

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Official Journal of the European Communities

L 109/57

million), of the abandoned and contaminated Kiener
Deponie Bachmanning landfill site does not constitute
State aid, subject to the conditions stipulated in Article
2.

Article 3

Austria shall
inform the Commission within two
months of notification of this Decision of the measures
it has taken to comply with it.

Article 2

Article 4

This Decision is addressed to the Republic of Austria.

Austria shall order Atlas to repay the State financed
clean-up costs and shall ensure that it receives them.
Repayment shall be made in accordance with national
procedures and legal provisions, with interest running
from the date of disbursement until such time as the
clean-up costs have been repaid by Atlas, at the rate
used as the reference rate for calculating the net
grant-equivalent of regional aid in Austria.

Done at Brussels, 9 December 1998.

For the Commission

Karel VAN MIERT

Member of the Commission