2002/284/EC: Commission Decision of 19 September 2001 on the State aid which the Netherlands is planning to implement in the form of development assistance for a high-technology dredger for the Republic of Djibouti (Text with EEA relevance) (notified under document number C(2001) 2900)
Date: 2001-09-19
Institutions: European Commission
Subjects: Djibouti, Netherlands, State aid, application of EU law, control of State aid, development aid, purchase, shipbuilding, vessel

L 105/26

EN

Official Journal of the European Communities

20.4.2002

COMMISSION DECISION

of 19 September 2001

on the State aid which the Netherlands is planning to implement in the form of development
assistance for a high-technology dredger for the Republic of Djibouti

(notified under document number C(2001) 2900)

(Only the Dutch text is authentic)

(Text with EEA relevance)

(2002/284/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

(3)

Having regard to the Treaty establishing the European
Community, and in particular the first subparagraph of Article
88(2) thereof,

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

The Commission’s decision to initiate the procedure was
published in the Official
the European
Communities (4). The Commission invited interested
parties to submit their comments.

Journal

of

(4)

The Commission did not receive any comments from
interested parties.

Having regard to Council Regulation (EC) No 1540/98 of 29
June 1998 establishing new rules on aid to shipbuilding (1),

II. Detailed description of the aid

Having regard to Council Regulation (EC) No 659/1999 of 22
March 1999 laying down detailed rules for the application of
Article 93 of the EC Treaty (2), and in particular Article 7
thereof,

Having called on interested parties to submit their comments
pursuant to the provisions cited above and having regard to
their comments (3),

Whereas:

I. Procedure

(1)

(2)

By letter dated 12 April 2000, the Dutch authorities,
acting pursuant
the EC Treaty,
to Article 88(3) of
notified the Commission of development assistance
which they intended to grant
to the Republic of
Djibouti for the purchase of a dredger of more than
365 KW to be built by the Damen Shipyards
in
Gorinchem.

the Commission
By letter dated 13 February 2001,
notified the Dutch authorities that it had decided to
initiate the procedure laid down in Article 88(2) of the
EC Treaty in respect of the aid. The Dutch authorities
submitted their comments to the Commission by letter
dated 21 February 2001.

(1) OJ L 202, 18.7.1998, p. 1.
(2) OJ L 83, 27.3.1999, p. 1.
(3) OJ C 172, 16.6.2001, p. 12.

(5)

(6)

(7)

The project, which provides for development assistance
under a general scheme for aid to developing countries,
concerns a transaction involving the dredger and three
other vessels for a total amount of NLG 11,664 million
(EUR 5,293 million). Provision has been made for aid
totalling NLG 3,447 million (EUR 1,464 million). Only
the dredger falls within the scope of Regulation (EC) No
1540/98. The cost price is NLG 9,564 million (EUR
4,340 million) and the aid earmarked amounts to NLG
2,392 million (EUR 1,085 million), or 25 % of
the
contract price. The recipient is the autonomous port of
Djibouti.

The Commission decided to initiate the Article 88(2)
the project
procedure because it doubted whether
complied fully with the conditions laid down in Article
3(5) of Regulation (EC) No 1540/98 concerning the
compatibility of aid related to shipbuilding granted as
development assistance.

New provisions have been incorporated into Article 3(5)
of Regulation (EC) No 1540/98 in cases where aid for
shipbuilding is granted in the form of development
assistance to a developing country. The Article states
that such aid may be deemed compatible with the
common market if it complies with the terms laid down
for that purpose by OECD Working Party 6 in its
Agreement concerning the interpretation of Articles 6
to 8 of the OECD Understanding on export credits for
ships. The Commission must verify the particular

(4) OJ C 172, 16.6.2001, p. 12.

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it

that

development content of the proposed aid and satisfy
the OECD
falls within the scope of
itself
Understanding on export credits and that the offer of
development assistance is open to bids from different
yards.

(8)

(9)

On the basis of
Commission,
with the OECD criteria.

the information available to the
it concluded that the projects complied

the Commission doubted whether

However,
the
development assistance was open to bids from different
yards and could not therefore rule out the possibility
that it constituted operating aid for Damen.

III. Comments from the Netherlands

(10)

The Dutch authorities provided new information of
which they were not aware at the time of the various
meetings held before the procedure was initiated.

(11)

(12)

They explained that
the authorities in Djibouti had
asked two other Dutch shipyards to submit bids, but
that this request was not taken up. It also emerges from
various letters that other Dutch shipyards were aware of
the transaction.

to tender

In addition, the Dutch authorities referred once again to
role in the new procedure for ensuring that
their
invitations
in the field of development
assistance receive significant publicity in future. Thanks
to this procedure, all Dutch shipyards will be better
informed about specific projects for which a Dutch
shipyard has submitted an application for development
assistance; this information will be disseminated by the
Dutch shipbuilding association (Vereniging Nederlandse
Scheepsbouw Industrie, hereinafter referred to as VNSI),
to which virtually all Dutch shipyards belong, as soon
as a shipyard has submitted an application to the
authorities. VNSI will provide its members with all the
information on the transaction (contract
important
In this way,
amount,
virtually the entire Dutch shipbuilding sector will be
informed.

type of vessel and customer).

IV. Assessment of the aid

(13) As explained in the decision to initiate the Article 88(2)
procedure,
the aid for the contract must be tested
against the provisions of Article 3(5) of Regulation (EC)
No 1540/98, which lays
on
development assistance for shipbuilding.

down new rules

(14)

that

laid down for

That Article states
such aid may be deemed
compatible with the common market if it complies with
the terms
that purpose by OECD
Working Party 6 in its Agreement concerning the
the OECD
interpretation of Articles 6 to 8 of
ships. The
for
Understanding on export
Commission must verify the particular development
content of the proposed aid and satisfy itself that it falls
within the scope of the OECD Understanding and that
the offer of development assistance is open to bids from
different yards.

credits

(15) As was also stated in the decision to introduce the
procedure, the Commission had already noted that the
OECD criteria with which the Member States must
comply, as described by the Commission in its letter
SG(89) D/311 of 3 January 1989, amended by letter
SG(97) D4645 of 10 June 1997, had been fulfilled.

(16) As regards whether the offer of development assistance
was open to bids from different yards, the Commission
would point out that these are new provisions which
have been incorporated into Regulation (EC) No
1540/98.
indicate how the
Commission should check whether this criterion is met;
it can therefore be interpreted in a number of ways. The
Commission considers
the criterion should be
strictly applied and that the offer of assistance should
have been open to bids from other shipyards.

they do not

In addition,

that

(17)

(18)

(19)

(20)

in the light of

In the decision to initiate the procedure the Commission
the information
took the view that,
provided by the Dutch authorities and the fact that the
shipyard and the Djibouti authorities had negotiated the
contract before the new procedure entered into force,
there were no grounds whatsoever for concluding that
the contract had been given sufficient publicity in
compliance with the principle of open tendering.

The Dutch authorities have since provided information
in addition to the comments submitted in the course of
the procedure, namely that the authorities in Djibouti
asked two other Dutch shipyards to submit a bid for the
order in question, but that neither shipyard did so.

The Commission notes that originally the invitation to
tender was not confined to Damen alone, given that
other shipyards were given the opportunity to submit a
bid.

following notification of

In addition,
the decision to
initiate the procedure, information on the contract was
widely disseminated between all potential
interested
parties.

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the best

(21) Although the way in which the contract was concluded
interpretation of open
does not quite fit
tendering, the Commission is prepared to accept that
the procedure followed has been in use for many years
and that the Dutch authorities were not fully aware of
the scope of Article 3(5) of Regulation (EC) No
1540/98, a position borne out by the Dutch authorities’
firm intention to review their procedure in future cases.
Accordingly, the Commission would emphasise that the
new procedure alone should be followed in all future
cases so as to comply with the conditions for open
tendering as described in Article 3(5) of Regulation (EC)
No 1540/98.

HAS ADOPTED THIS DECISION:

Article 1

The aid with an intensity of 25 % which the Netherlands
intends to grant to the Republic of Djibouti in the form of
development assistance for the purchase of a dredger from the
Damen Shipyards is compatible with the common market.

Implementation of the aid is accordingly authorised.

Article 2

V. Conclusion

This Decision is addressed to the Kingdom of the Netherlands.

(22)

In the light of the above, the doubts underlying the
Commission’s decision to initiate the Article 88(2)
It can therefore be
procedure have been resolved.
concluded that the project complies with the conditions
laid down in Article 3(5) of Regulation (EC) No
1540/98 and that it is therefore compatible with the
common market,

Done at Brussels, 19 September 2001.

For the Commission

Mario MONTI

Member of the Commission