2002/935/EC: Commission Decision of 14 May 2002 on the State aid granted to Grupo de Empresas Álvarez (notified under document number C(2002) 1805) (Text with EEA relevance)
Date: 2002-05-14
Institutions: European Commission
Subjects: Spain, State aid, aid for restructuring, ceramics, control of State aid, glass industry, industrial restructuring

5.12.2002

EN

Official Journal of the European Communities

L 329/1

II

(Acts whose publication is not obligatory)

COMMISSION

COMMISSION DECISION

of 14 May 2002

on the State aid granted to Grupo de Empresas `lvarez

(notified under document number C(2002) 1805)

(Only Spanish text is authentic)

(Text with EEA relevance)

(2002/935/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

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,

reductions plus an undertaking from the Spanish
authorities to refrain from granting further State aid to
including its wholly-owned subsidiary Vidrios
GEA,
AutomÆticos del Norte (Vanosa). The last recital of the
decision reads as follows:

(cid:145)The Spanish authorities will be informed accordingly
that any new State aid in favour of this company will
be considered incompatible with the common market
and at odds with the undertaking given and it will
consequently have repercussions on the aid being
approved by this Decision.(cid:146)

on

called

interested

Having
their
comments (1) pursuant to Article 88(2) of the EC Treaty and
Article 6(1) of Council Regulation (EC) No 659/1999 (2) and
having regard to their comments,

submit

parties

to

Whereas:

I. PROCEDURE

(1)

On 15 July 1997 the Commission adopted Decision
98/364/EC on the State aid granted to Grupo de
Empresas `lvarez (GEA) (3)
(hereinafter the Decision),
notified
authorising
under
restructuring aid for GEA, a Spanish manufacturer of
porcelain and china in Vigo (Galicia).

number C(1997)2615,

(2)

The positive assessment was made on the basis of a
restructuring plan that provided for drastic capacity

(1) OJ C 336, 30.11.2001, p. 6.
(2) OJ L 83, 27.3.1999, p. 1.
(3) OJ L 164, 9.6.1998, p. 30.

(3)

Article 1(1) of the Decision states that a number of
measures constitute unlawful State aid. The measures:

therefore

(cid:145)[(cid:133)] comply, however, with the Community guidelines
on State aid for rescuing and restructuring firms in
difficulty and are
compatible with the
common market under Article 92(3)(c) of the Treaty
and Article 61(3)(c) of
the EEA Agreement, on
condition that the Spanish authorities refrain, as they
undertook in their
from
granting any new aid to the company in the future
and that they fully implement the agreed restructuring
plan.(cid:146)

letter of 22 May 1997,

(4)

The Decision also required the Spanish authorities to
submit a series of reports to the Commission to enable
the latter to check compliance with the restructuring
plan and that the Spanish authorities were refraining
from granting further aid to the firm.

(5)

(6)

(7)

(8)

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By
letter dated 21 May 1999 the Commission
the second report on the
acknowledged receipt of
implementation of the restructuring plan and informed
Spain that (cid:145)on the basis of the information, figures and
justifications contained in the report, the Commission
had not intended to reopen [this file] since the basic
lines of the decision are being complied with(cid:146). The letter
also indicated:
in particular taking into
account that GEA continues to be loss making, I would
like to remind you of your authorities’ commitment not
to grant any additional State aid to that firm anymore.(cid:146)

(cid:145)Nevertheless,

(14) On 19 September 2001 the Commission decided to
initiate proceedings under Article 88(2) of the Treaty in
respect of the aid. Spain was informed by letter on the
same day. After asking for more time to reply, Spain
replied by letter that reached the Commission on 4
December 2001.

(15)

The publication of that letter in the Official Journal of the
European Communities did not give rise to any comments
from third parties.

The report did not contain any indication of the fact
that, as will be shown below, GEA and Vanosa had
systematically been failing to pay taxes and social
security contributions since 1997.

II. DESCRIPTION

II.1 The complaints

Following allegations made by a competitor (hereinafter
Complainant 1) that Spain had waived claims for a total
amount of ESP 17 billion, and in view of the fact that
Spain had not submitted the reports for 1999 in time,
the Commission informed Spain on 24 September 2000
that it had serious doubts as to whether its Decision of
15 July 1997 was being complied with.

By letters of 5 October, 7 November and 14 November
2000 Spain sent the requested report and informed the
Commission that GEA had not received any fresh aid. It
also certified that Spain had not waived a claim for ESP
17 billion.

(9)

By letter dated 9 April 2001 the Commission received a
new complaint (hereinafter Complainant 2).

(16) According to the complainants, GEA and other related
security

companies
contributions between 1997 and at least January 2001.

failed to pay taxes and social

(17)

(18)

Complainant 1 also raises concerns over the pricing
related
policy applied by the firm: GEA and its
companies are distorting competition on the relevant
market by selling their products at prices that are so
low they can be explained only by the presence of State
aid.

Complainant 2 submitted several certificates issued by
the Tesorer(cid:237)a General de la Seguridad Social showing
the months during which GEA and one of its related
paid
companies
security
not
least as regards GEA) 1992.
contributions since (at
Moreover, Complainant 2 stated that
the public
creditors had agreed to waive 98 % of its claims on
Vanosa under a creditor’s agreement.

social

had

any

(10)

By letter dated 3 May 2001 a further
information was sent to Spain.

request

for

II.2 The aid recipient

(11)

By letters dated 15 May, 16 May, 31 May and 12 June
2001 Complainant 1 submitted further allegations.

(12)

By letter received on 29 June 2001, Complainant 2
submitted evidence supporting their allegations
that
GEA and its subsidiary Vanosa had not paid social
security contributions between 1997 and at
least
January 2001.

(13)

By letter
confirmed the information given by Complainant 2.

received on 5 July 2001 Spain partially

(19) GEA manufactures

and sells

tableware made of
it also produces
porcelain, earthenware and glass;
bottles. GEA was in the past one of the largest Spanish
tableware manufacturers. In the period 1993 to 1997,
GEA’s market share amounted to an average of 11,6 %
on the Spanish market and 0,64 % on the EU market.
At the time, GEA had a workforce of 1 029 persons
and an annual turnover of some ESP 2 500 million in
1995 and 1996.

(20) On 2 November 1997 GEA and Vanosa filed for
liabilities of ESP 2 994 million.
bankruptcy with total
According to the latest
the
workforce was reduced to 715 in 1998, with operating
losses amounting to ESP 2 151 million.

sent by Spain,

report

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(21)

located in Vigo,

a Spanish region where

The group is
in the province of
the
Pontevedra, Galicia,
shipping, fishing and car industries are dominant and
which, owing to the problems these industries are
facing,
is experiencing a serious economic crisis and
high unemployment. The region is classified as an
Objective 1 zone and is eligible for regional aid under
Article 87(3)(a). Until
June 1991, GEA was wholly
owned by INI, a Spanish public holding, at which time
INI decided to privatise the enterprise.

(22) GEA is the sole owner of Vanosa, a subsidiary it set up
in the glass packaging
in 1993. Vanosa is present
sector.
In 1999, Vanosa achieved a turnover of ESP
1 293 million, of which 5 % in the other Member
States, and incurred losses of ESP 119 million. Vanosa
employed 116 workers in 1999.
It is located in the
same assisted area as GEA.

II.3 The market

(23)

There is a brisk trade in tableware between Spain and
other Member States. According to the information
provided by Eurostat, between January and October
1995 Spain exported 8 546 tonnes of
tableware
products worth EUR 326 million and, between January
and September 1995,
imported 7 844 tonnes worth
the overall
EUR 433 million.
intra-Community trade in tableware goods stands at
the EU’s
roughly 3 %. Although GEA is not one of
major producers of
in this
market.

is present

tableware,

share of

Spain’s

it

and

industry.

contracted

during 1992/1993. The

(24) Moreover, there is also considerable overcapacity in the
porcelain
consumption
Production
registered continuing growth between 1984 and 1991,
but
recovery
expected for 1994 did not happen. The trade balance in
the last years was positive, but the share of imports
increased markedly,
in particular for household china.
the
Growth in exports
increasing competition in the sector. On the contrary,
strong competition and overcapacities are reinforced
due to new market entrants from south-east Asia and

to offset

sufficient

is not

all

and Hungary, which

the eastern European countries, in particular the Czech
from
Republic
trading arrangements with the European
preferential
Union.
In 1999, Spain imported porcelain tableware
from other Member States worth EUR 11 902 000
intra-Community
(EUR 10 773 000 in 2000), whilst
sales reached EUR 374 399 000 (EUR 372 030 000 in
2000).

benefit

(25)

The information at the Commission’s disposal confirms
that at least 20 % of the sales in Spain of china and
porcelain for the hotel/restaurant industry are imported
products. The remaining 80 % are broken down as
follows:

Firm

Market share

CIM

Porvasal

GEA

Bidasoa

Capeans

Porcelanas Principado

19 %

16 %

5 %

24 %

7 %

9 %

(26)

Consequently, GEA’s products are in direct competition
with the products from Spanish and EU manufacturers.

(27)

Vanosa, for its part, operates in the market for glass
packaging.

(28) With a market

share of 13 %,

the container glass
industry takes third place in the packaging sector, after
plastics with 35 % and paperboard with 32 %. The
period 1996 to 1998 was affected by a fall in prices.
The rapid downward trend in prices continued as a
result of competition from other packaging products
(PET, cardboard and cans) and the collapse of
the
Russian market.

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Official Journal of the European Communities

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(29)

The production of the container glass industry in Europe is as follows:

Container glass industry in Europe

Country

1998 production
(in 1 000 tonnes)

Share in %

Germany

France

Italy

United Kingdom

Spain

Belgium+Denmark+ Ireland+Netherlands

Portugal

Austria

Norway+Sweden+Finland

Greece

4 323

3 785

3 047

1 852

1 816

1 501

763

306

246

95

Source: FEVE FØdØration EuropØenne du Verre d’Emballage.

Community total

17 734

(30)

Intra-Community trade in the container glass sector is as follows:

24,4

21,3

17,2

10,5

10,2

8,5

4,3

1,7

1,4

0,5

100

EUR 15 (final results)

Glass types

Container glass

Flat glass
(unworked)

Tableware

Reinforcement
fibres

(in tonnes)

Total

Other
(including
special glass)

Production

17 649 815

7 499 570

1 071 837

550 249

1 319 281

28 090 752

Apparent
Consumption

17 389 493

7 676 306

1 011 837

678 096

1 231 465

27 987 197

Exports Extra-EU

712 479

712 013

403 604

169 404

452 267

2 449 767

Imports Extra-EU

452 157

888 749

343 604

297 251

364 451

2 346 212

Exports Intra-EU

2 160 298

2 696 283

488 974

834 457

1 546 548

7 726 560

Imports Intra-EU

2 430 098

2 358 468

1 438 862

775 317

1 602 601

8 605 346

Exports/Imports

1,58 %

0,80 %

1,18 %

0,57 %

1,24 %

Import penetration

2,56 %

11,85 %

32,06 %

54,0 %

27,63 %

1,04 %

8,35 %

Intra-EU Imports/
Products

13,77 %

31,45 %

134,24 %

140,90 %

121,48 %

30,63 %

Source: Eurostat Combined Nomenclature (cid:151) CPIV.

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(31) According to Asociaci(cid:243)n Nacional de Empresas de
Fabricaci(cid:243)n AutomÆtica de Envases de Vidrio (the
Spanish glass container association), in 1999 container
glass imports onto the Spanish market accounted for
8 % of production. France absorbed 98 % of exports.
Imports accounted for 12 % of total consumption in the
same year. Portugal accounted for 50 % of imports.

IV. ASSESSMENT OF THE MEASURES

IV.1. Existence of State aid within the meaning of
Article 87(1)

III. SPAIN’S RESPONSE TO THE INITIATION OF
PROCEEDINGS

(32)

By letter received on 4 December 2001 Spain answered
the Commission’s letter of 19 September 2001 with the
information set out below in recitals 33 to 37.

(33) No new aid was granted to GEA/Vanosa after the 1997

decision.

(34) GEA/Vanosa systematically failed to comply with their
tax and social security obligations over a period of three
years following the adoption of the 1997 decision.

(35) On 14 April 1998 the

tax

authorities

the waiver was

granted
GEA/Vanosa a partial waiver and accepted a payment
rescheduling;
to the firms
complying both with the rescheduling terms and with
their current
tax obligations; on 7 February 2001,
almost three years after the granting of the waiver, the
tax authorities decided to cancel the waiver and the
payment rescheduling on the ground that the firm (cid:145)had
failed to respect its payment obligations(cid:146).

subject

the waiver was

(36) On 6 November 1998 the tax authorities granted
Vanosa a partial waiver and accepted a payment
rescheduling;
to Vanosa
complying both with the rescheduling terms and with
its current tax obligations; on 7 February 2001, more
than two years after the granting of the waiver, the tax
authorities decided to cancel
the waiver and the
payment rescheduling on the ground that the company
(cid:145)had failed to respect its payment obligations(cid:146).

subject

(37)

The social security and the tax administrations and
made every effort to recover the unpaid amounts by
ordering the seizure of GEA and Vanosa’s real estate;
however,
the property was
mortgaged to private banks.

substantial part of

a

(38) Article 87(1) of the Treaty establishes the principle that,
save as otherwise provided in the Treaty, any aid which
distorts or threatens to distort competition by favouring
certain undertakings or the production of certain goods
is, in so far as it affects trade between Member States,
incompatible with the common market.

(39) As indicated in recitals 23 to 31, the products marketed
by GEA are traded between the Member States and
there is competition between manufacturers. Moreover,
GEA is one of Spain’s main manufacturers in the sector
concerned. Thus any financial support granted by the
State to GEA and Vanosa is liable to affect trade and
distort
their
competition on the market where
competitors are concerned.

(40) As stated above in recitals 23 to 31, Vanosa operates in
the market
suffering from
structural problems. Any aid to Vanosa was thus liable
to affect its position on the market in relation to its
competitors in the EU.

for packaging, which is

(41) According to the information submitted by Spain,
GEA/Vanosa systematically failed to pay social security
contributions from the adoption of the 1997 decision
until at least January 2001, as follows:

GEA

Vanosa

EUR 16,15 million

EUR 3,36 million

(42) As regards the taxes, no information was submitted on
the unpaid taxes despite the fact that the Commission
made a specific request. However, according to the
documents
authorities,
tax
GEA/Vanosa systematically failed to meet
obligations. The amount accumulated over three years
must be substantial.

provided

Spanish

their

the

by

(43) As

regards

the social

is
apparent from the available information that GEA and
Vanosa were able for several years to continue trading
without meeting their social security obligations.

security contributions,

it

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(44)

(45)

(46)

(47)

the

The Spanish authorities stated in their letter of 5 July
2001 that the public creditor’s behaviour complied with
the national laws in force and did not discriminate in
favour of
two firms. They also stated that
proceedings had been initiated to seize a number of
assets. However, they did not state whether other legal
means under Spanish law had been applied to stop the
continuous
social
security contributions,
the separate forced
such as
collection procedures which can be adopted with regard
to post-suspension debts.

and systematic non-payment of

Justice in its

ruling in Magfesa (5),

In line with Decision 1999/509/EC of 14 October 1998
concerning aid granted by Spain to firms
in the
Magefesa group and their successors (4), upheld by the
the
Court of
persistent and systematic non-payment of social security
contributions and of an unknown but
substantial
amount of taxes, between at least January 1997 and
January 2001, constitutes a transfer of public resources
to GEA and Vanosa. Such transfer gives
them a
competitive advantage since (cid:151) unlike their competitors,
(cid:151) they are not obliged to defray these costs as would
ordinarily be the case. The transfer therefore constitutes
aid under Article 87(1) of the Treaty.

legislative provisions
The mere fact that the national
relied on by the Spanish Government are applicable to
any enterprise subject
to a court-supervised recovery
scheme, or which has contracted debts to social security
and the Treasury,
for the measures
is not sufficient
taken by Spain to avoid being categorised as aid under
Article 87 of the Treaty.

advantage

systematic

resulting from the persistent

The
and
systematic failure to pay taxes and from the persistent
of
and
security
January 1997 and
contributions between at
January 2001 arises
failing to take
measures available under Spanish law (separate forced
collection procedures) to prevent firms from continuing
to operate without fulfiling their tax and social security
obligations.

non-payment
least
from Spain’s

social

(48)

The fact that neither the Treasury nor the social security
authorities have formally cancelled the debts does not
detract from the fact that the firms have been able to
operate without meeting their tax and social security
their competitors
obligations. Over the same period,
have not benefited from such financial advantages.

(49)

(50)

(51)

(52)

The Court confirmed in Magefesa that a State aid
element may arise, under certain circumstances, as a
result of certain measures being taken by the State in
the context of insolvency procedures. In the context of a
suspension of payments procedure, the State does not
act as a public investor. Therefore its conduct cannot be
compared to the conduct of a private investor laying
in the
out capital with a view to realising a profit
relatively short
rather
term. The Commission must
the State has acted as a diligent
examine whether
trying to maximise the chances of
private creditor
recovering its credit. As the Court held in Tubacex (6), a
good test is to compare the behaviour of the State with
the behaviour of a private creditor. This was upheld by
in DMT (7) with the ruling that a public
the Court
creditor must be compared with a hypothetical private
creditor which, so far as possible,
in the same
position vis-(cid:224)-vis its debtor as the ONSS (the public
creditor) and is seeking to recover the sums owed to it.

is

and

taxes

unpaid

in
The question arises whether the public creditors,
allowing such persistent non-payment of
taxes and
social security contributions, behaved in the way they
did with a view to maximising their chances of
security
recovering
contributions. The Spanish authorities have not stated
or suggested that such was the case. On the contrary,
the continued operation of
the firms concerned has
resulted in a considerable increase in the taxes and
social security contributions remaining unpaid, which
constitutes a fundamental and substantial deviation from
the restructuring plan on which the 1997 decision was
based.

social

the

taxes

assets,

such as

and social

The persistent non-payment automatically reduces the
company’s assets during the suspension of payment
period since the debts resulting from the administration
security
of
contributions, have to be paid first, taking priority over
debts towards other creditors. Given the size of
the
public claims, it follows that, after the declaration of the
statutory suspension of payments on 19 November
1997 (GEA) and on 14 November 1997 (Vanosa), their
continued operation without meeting their
tax and
social security obligations further damaged the interests
of
the Treasury and the social security department.
According to the information submitted by Spain, GEA
is still under statutory suspension of payments whereas
Vanosa’s suspension of payments was lifted in July
2000. Despite that, the debts arising from the persistent
non-payment were still unpaid in July 2001.

fact

that

large

social

amounts of
and an unknown amount of

security
The
taxes
contributions
remained effectively unpaid between at
January
1997 and January 2001 shows that GEA’s and Vanosa’s
continued operation has supported economic activities
which would otherwise have been unsustainable under
normal market conditions.

least

(53)

Consequently, nothing in the State’s behaviour suggests
that it acted as a private creditor trying to recover at

(4) OJ L 198, 30.7.1999, p. 15.
(5) Case C-480/98 Spain v Commission [2000] ECR I-8717.

(6) ECR [1999] I-2459.
(7) ECR [1999] I-3913.

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least a marginal amount of unpaid taxes and social
contributions. Under the circumstances, and bearing in
mind that the original restructuring plan was not being
complied with,
that a reasonable
is very doubtful
creditor would have accepted such high exposure.

it

(60)

From the information in its possession, the Commission
must conclude that the measure in question constitutes
operating aid for GEA and Vanosa. Such aid is
incompatible with the common market as it is designed
to relieve GEA and Vanosa of the costs they would have
had to bear on their own under the normal conditions
of their day-to-day operation or activities.

(54)

The Commission has not been informed of the total
amount of
tax owed to the Treasury by GEA and
In line with Decision 1999/509/EC adopted
Vanosa.
following
Spanish
Government’s responsibility to supply this information.

the Magefesa

case,

the

is

it

(61) Nontheless, such aid may be granted exceptionally to
firms in regions qualifying for exemption under Article
87(3)(a) provided that
its
contribution to regional development and its nature and
that its level is proportional to the handicaps it seeks to
alleviate.

is justified in terms of

it

(55)

It must accordingly be concluded that
the persistent
non-payment of taxes and social security contributions
by GEA and Vanosa after the declaration of suspension
of payments constitutes aid under Article 87(1) of the
Treaty.

(62)

The Commission notes that Vigo is located in an Article
the Commission considers
87(3)(a) region. However,
that
the
the measures
conditions for operating aid laid down in the guidelines
on national regional aid (cf. paragraphs 4.15 to 4.17 of
the guidelines). In particular, the Commission notes that
the aid in question is not degressive.

in question do not

fulfil

IV.2 Compatibility of the aid

(63)

The Commission therefore concludes that the aid does
not qualify for exemption under Article 87(3)(a).

(56)

The Commission notes that Spain has not invoked any
of the exceptions provided for by the Treaty, the latter’s
position being that the case does not involve State aid.

(64)

(57)

(58)

The Commission considers that the measure in question
does not qualify for exemption under Article 87(2) as it
is not aid having a social character granted to individual
consumers, aid to make good the damage caused by
natural disasters or aid to compensate for the economic
disadvantages caused by the division of Germany.

The exceptions in Article 87(3)(b) and (d) do not apply
the aid is not designed to promote the
either as
execution of an important project of common European
interest
heritage
or
conservation.

promote

cultural

and

to

to assess

The question arises whether the aid aims at restoring
the long-term viability of an undertaking in difficulty. In
order
in
difficulties the Commission has issued specific guidelines
on rescue and restructuring aid (8) which are applicable
to the measures under scrutiny.

funding granted to firms

the

(65)

The Commission notes that the aid was granted whilst
the aid recipient was implementing the restructuring
plan that
the 1997 positive
decision.

formed the basis of

(66)

the
In accordance with the restructuring guidelines,
restructuring plan, the duration of which must be as
short as possible, should restore the long-term viability
of the firm within a reasonable time and on the basis of
realistic assumptions as to future operating conditions.
Restructuring aid must therefore be linked to a viable
restructuring plan, monitored by the Member State
concerned.

(59)

The other exceptions provided for in Article 87(3)(a)
and (c) are not applicable in this case.

(8) OJ C 288, 9.10.1999.

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(67)

(68)

compensatory measures,

In addition to the
the
Commission may impose any conditions and obligations
it considers necessary in order to ensure that the aid
does not distort competition to an extent contrary to
the common interest. For example, it may require the
Member State, as occurred in the present case, to refrain
from granting other types of aid to the recipient firm
during the restructuring period.

letter dated 21 May 1999 the Commission
By
acknowledged receipt of
the second report on the
implementation of the restructuring plan and informed
Spain that (cid:145)on the basis of the information, figures and
justifications contained in the report, the Commission
does not intend to reopen [this file] since the basic lines
of
the decision are being complied with(cid:146). As stated
above, the letter added:

in particular taking into account

that
(cid:145)Nevertheless,
GEA continues to be loss making,
I would like to
remind you of your authorities’ commitment not to
grant any additional State aid to that firm anymore.(cid:146)

(72) Moreover, in order to prevent firms from being unfairly
assisted, restructuring aid should be granted once only.
If the firm concerned has in the past already received
restructuring aid, and where less than 10 years has
elapsed since the restructuring period came to an end,
allow further
the
restructuring aid only in exceptional and unforeseeable
circumstances for which the firm is not responsible. An
unforeseeable circumstance is one that could not be
anticipated when the restructuring plan was drawn up.
Spain has not suggested that this was the case nor has it
submitted any evidence supporting such a claim.

Commission will

normally

(73) Under the circumstances,

the new aid does not meet

the Commission concludes
that
the conditions for
authorisation set out in the Community guidelines on
State aid for
in
difficulty.

rescuing and restructuring firms

(74)

In view of the foregoing, the Commission considers that
the aid is not compatible with the common market.

V. CONCLUSIONS

(69) However, the report did not contain any indication of
the fact that GEA and Vanosa had been systematically
failing to pay taxes and social security contributions
since 1997.

(75)

The aid in the form of the persistent non-payment of
taxes and social security contributions by Grupo de
Empresas Alvarez
the
suspension of payments
in November 1997 until
January 2001 is incompatible with the common market.

SA and Vanosa

following

(70)

(71)

the

Spain did not suggest at any point in the procedure that
the aid was a mesure adopted under the approved
restructuring plan nor
reports on the
did
implementation of the restructuring plan indicate the
existence of the new aid or a fortiori that the measure
was an additional action needed to implement
the
restructuring plan correctly. Moreover, the State granted
the partial waiver to GEA and Vanosa provided they
complied both with the rescheduling terms and with
their current tax obligations. However, it was only on 7
February 2001, almost three years after the granting of
the waiver, that the tax authorities decided to cancel the
waiver and the payment rescheduling on the grounds
that the company (cid:145)failed entirely to meet its payment
obligations(cid:146).

to the proper

Thus persistent and systematic non-payment of taxes
and social security contributions eventually thus led to
the cancellation of one of the measures (the waiver) that
the
were crucial
restructuring plan. Such systematic failure, permitted by
the State, which did not use all the available legal means
to stop it, can therefore hardly be regarded as a measure
adopted within
existing
restructuring plan.

implementation of

framework

the

the

of

(76)

The Commission concludes
that Spain unlawfully
implemented the aid in question in breach of Article
88(3) of the Treaty.

(77) Article 14 of Council Regulation (EC) No 659/1999
stipulates that any unlawful aid which the Commission
has deemed to be incompatible with the common
market must be the subject of a decision requiring that
it be recovered from the beneficiary.

(78)

take all

In order to restore the economic conditions with which
the firm would have had to contend if it had not been
the Spanish authorities
granted the incompatible aid,
must
the necessary steps to withdraw the
benefits deriving from the aid and recover them from
the beneficiary, in accordance with the Court of Justice
in Espaæa v Commission (9), although the
Judgment
include
recovery order addressed to Spain does not
interest arising between the date the aid was granted
and when it was recovered.

(9) Case C-480/98, [2000] ECR I-8717.

5.12.2002

EN

Official Journal of the European Communities

L 329/9

(79)

The aid must be recovered in accordance with the
procedures laid down in national law,

HAS ADOPTED THIS DECISION:

Article 1

The aid in the form of the persistent non-payment of taxes
and social
security contributions by Grupo de Empresas
Alvarez SA and Vanosa between the dates on which payments
were suspended (19 November 1997 for GEA and 14
November 1997 for Vanosa) and January 2001 is incompatible
with the common market.

Recovery

shall be

2.
and in
accordance with the procedures of national law provided that
they allow the immediate and effective execution of
this
Decision.

effected without delay

Article 3

Spain shall inform the Commission, within two months of the
date of notification of this Decision, of the measures taken to
comply herewith.

Article 4

This Decision is addressed to the Kingdom of Spain.

Article 2

Done at Brussels, 14 May 2002.

1.
Spain shall take all the necessary steps to recover from
the recipient the aid referred to in Article 1 and unlawfully
already made available to the recipient.

For the Commission

Mario MONTI

Member of the Commission