2003/731/EC: Commission Decision of 13 November 2002 on the State aid implemented by Italy for Pertusola Sud (Text with EEA relevance) (notified under document number C(2002) 4360)
Date: 2002-11-13
Institutions: European Commission
Subjects: Italy, State aid, control of State aid, industrial enterprise, zinc

L 264/28

EN

Official Journal of the European Union

15.10.2003

COMMISSION DECISION

of 13 November 2002

on the State aid implemented by Italy for Pertusola Sud

(notified under document number C(2002) 4360)

(Only the Italian text is authentic)

(Text with EEA relevance)

(2003/731/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Com-
munity, 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,

Having called on interested parties to submit their comments
pursuant to the provisions cited above (1), and having regard to
those comments,

Whereas:

(1)

(2)

(3)

(4)

(5)

I. PROCEDURE

By letter dated 18 September 2000, Italy notified a draft
to the Commission concerning the sale of
contract
Pertusola Sud SpA in liquidation to Zincocalabra SpA, a
private group of companies headed by Cogefin SpA. The
contract was notified in accordance with Article 3(1)(a)
of Commission Decision 98/212/EC of 16 April 1997
on the aid granted by Italy to Enirisorse SpA (2) as the
contract contained a suspensive clause that requires the
Commission's approval in order to be valid.

By letter of 13 February 2001 the Commission notified
Italy of its decision to initiate proceedings under Article
88(2).

The Commission decision to initiate proceedings was
published in the Official Journal of the European Commu-
nities (3). The Commission invited interested parties to
submit their comments.

The Commission received comments from the United
Kingdom as well as from Union Minière, Metaleurop and
Nuova Solmine. The comments were forwarded to Italy
for its views and its response was received on 22
October 2001.

(9)

II. DESCRIPTION

By Decision 98/212/EC the Commission authorised Italy
to grant aid totalling ITL 1 819 billion to Enirisorse SpA
subsidiaries,
for

restructuring of

some of

the

its

(1) OJ C 149, 19.5.2001, p. 13.
(2) OJ L 80, 18.3.1998, p. 32.
(3) See footnote 1.

including Pertusola Sud SpA. The aid for Pertusola Sud
SpA amounted to ITL 280 million and covered the
period 1992 to 1996. Article 2 of the Decision required
Italy to comply with its commitments as set out in the
restructuring plan, i.e. to privatise the remaining compa-
nies and production sites of Enirisorse SpA by 31
December 1998. One of the two firms in question was
Pertusola Sud.

(6)

The Decision also required Pertusola Sud to have been
shut down and dismantled by the end of 1997, or to be
sold to an interested buyer. In any event the firm could
no longer produce zinc. The Commission had also taken
the view that the 45 % cut in Enirisorse's zinc produc-
tion capacity resulting from the closure of Pertusola Sud
was an adequate counterpart to the aid granted to Pertu-
sola. It had therefore concluded that the aid did not
affect competition to an extent contrary to the common
interest.

(7)

On 24 July 1997 Enirisorse invited offers for Pertusola
Sud. On 31 March 1998 Pertusola entered into liquida-
tion, and ceased production in February 1999. It had a
capital of ITL 22 billion, wholly owned by Enirisorse.

(8)

In August 2000 Enirisorse SpA agreed to sell its entire
share capital in Pertusola Sud to Zincocalabra.

Zincocalabra SpA is a new company owned by a private
group of firms headed by Cogefin SpA, an Italian group
whose companies operate chiefly in the zinc sector.
Zincocalabra SpA planned to increase Pertusola's zinc
to 185 000 tonnes a year and carry out an
output
investment programme costing ITL 500 billion,
to
which it would contribute
ITL 250 billion. The
remaining 50 % would be granted in the form of
regional aid, which would be notified to the Commission
under the multisectoral framework. Another clause in
the contract provided for the payment by Enirisorse SpA
of the cost of making good past environmental damage,
up to a maximum of ITL 180 million, a payment to
which Enirisorse had already agreed.

15.10.2003

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Official Journal of the European Union

L 264/29

(10)

The Italian authorities also informed the Commission
that Pertusola Sud entered into liquidation on 31 March
1998 and that Enirisorse had therefore ceased contri-
buting capital although it was continuing to cover Pertu-
sola's financial requirements to allow its liquidation as a
solvent company.

(11)

The Commission initiated proceedings for the following
reasons:

— possible misuse of the aid approved under the 1997

decision on Pertusola Sud,

— the payments made by Enirisorse to cover Pertusola's
financial commitments in order to ensure that
it
remained solvent even though it was in liquidation
could be regarded as State aid and possibly as incom-
patible with the common market,

— the payment by Enirisorse of the environmental costs
borne by Pertusola Sud could be regarded as State
aid and possibly as incompatible with the common
market.

III. COMMENTS FROM INTERESTED PARTIES

(12)

The United Kingdom as well as Union Minière, Meta-
leurop and Nuova Solmine sent comments in support of
the Commission's preliminary assessment.

IV. COMMENTS FROM ITALY

(13)

(14)

By letter of 28 March 2001, Italy informed the Commis-
sion that the contract concluded with Zincocalabra had
been rescinded.

By letters dated 5 April 2001 and 22 October 2001,
Italy expressed its disagreement with the preliminary
assessment made by the Commission as well as with the
comments submitted by the interested parties.

(15)

By letter of 1 August 2002, Italy informed the Commis-
sion that:

— on 14 December 2001 a contract for the dismantling
of Pertusola's plant had been concluded. The
dismantling was to be completed within 16 months
of the start of work, as provided for in the contract,

— at 31 December 2001 Pertusola was employing 24
persons to carry out the liquidation (dismantling,
safety and administration), of whom nine would
leave the firm in 2002,

— on 1 February 2002 Pertusola merged with Singea
SpA in liquidation (which is the current name of
Enirisorse).

V. CONCLUSIONS

(16)

(17)

The Commission concludes that the dismantling of the
plant imposed by the 1997 decision, although delayed,
will be completed.

The Commission also concludes that,
following the
cessation of activity and the ensuing dismantling of the
plant, there are no longer any potential distortions of
competition due to the measures that Italy would have
implemented unlawfully for Pertusola Sud in liquidation,
in breach of Article 88(3) of the EC Treaty.

The Commission accordingly concludes that the formal
investigation procedure initiated under Article 88(2) of
the EC Treaty in respect of the measure in question thus
no longer serves any purpose, although Italy is still
subject to the obligation in Article 3 of Decision 98/
212/EC to provide the Commission with six-monthly
reports between 1 October and 1 April of each year,
until the dismantling of the plant at Pertusola Sud is
completed,

HAS ADOPTED THIS DECISION:

Article 1

The formal
investigation procedure initiated under Article
88(2) of the Treaty on 13 February 2001 against the measures
implemented by Italy for Pertusola Sud (State aid C 8/2001) is
closed.

Article 2

Italy shall
send the Commission the six-monthly reports
provided for in Article 3 of Decision 98/212/EC until the
dismantling of the Pertusola Sud plant has been completed.

Article 3

This Decision is addressed to the Italian Republic.

Done at Brussels, 13 November 2002.

For the Commission

Mario MONTI

Member of the Commission