2004/114/EC: Commission Decision of 29 October 2003 on measures in favour of non-profit harbours for recreational crafts, the Netherlands (Text with EEA relevance) (notified under document number C(2003) 3890)
Date: 2003-10-29
Institutions: European Commission
Subjects: Netherlands, State aid, complaint to the Commission, harbour installation

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COMMISSION

COMMISSION DECISION

of 29 October 2003

on measures in favour of non-profit harbours for recreational crafts, the Netherlands

(notified under document number C(2003) 3890)

(Only the Dutch text is authentic)

(Text with EEA relevance)

(2004/114/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

(3)

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,

(4)

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

this
the
correspondence,
After being informed of
complainant sent additional
information on this case
and six other cases by various letters during the course
of 2001. By letter dated 11 February 2002 (D/50569),
the Commission asked the Dutch authorities for detailed
information on all seven cases.

the request of

At
the Dutch authorities, a bilateral
meeting between the services of the Commission and the
Dutch authorities took place on 3 May 2002. The Dutch
authorities sent answers to the questions and additional
information (reports) by letters dated 10 July 2002 and
2 August 2002.

Whereas:

I. PROCEDURE

(1)

(2)

By letter dated 1 March 2001, a complaint was filed
with the Commission on the possible distortion of
competition between marinas in the Netherlands. Dutch
marinas are operated by both non-profit making organi-
sations (usually sailing clubs) and private undertakings.
According to the complainant several non-profit making
marinas had received State aid to build or maintain their
moorings. This enables these marinas, for instance, to
offer a lower rental price of the moorings for tourists
who are passing by with their recreational craft.

At first the complaint was focused on a single project in
Enkhuizen called Gependam-project, where, according to
the complainant,
the local sailing club had received
substantial aid in the form of an excessively low
purchase price for an aquatic area. The Commission
asked the Dutch authorities questions by letter dated 11
April 2001 (D/51551) and the Dutch authorities replied
by letter dated 24 May 2001.

(5)

(6)

(7)

On the basis of the information received, the Commis-
sion drafted an overview of the seven cases, which was
sent to the complainant by letter dated 8 August 2002.
This overview distinguished three cases for which it
could not be excluded whether State aid within the
meaning of Article 87(1) was at stake, and four cases for
which the Commission's preliminary opinion was that
no State aid within the meaning of Article 87(1) was at
stake. By letter dated 3 September 2002 the complainant
agreed on this overview and provided additional infor-
mation on the three remaining cases.

By letter dated 5 February 2003,
the Commission
informed the Netherlands of its decision to initiate the
procedure laid down in Article 88(2) of the EC Treaty in
respect of these three remaining cases. By letter dated 22
submitted their
April 2003,
comments together with further information.

the Dutch authorities

The Commission decision to initiate the procedure was
published in the Official Journal of the European Union on
22 March 2003 (2). The Commission called on interested
parties to submit their comments.

(1) OJ C 69, 22.3.2003, p. 4.

(2) OJ C 69, 22.3.2003, p. 4.

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(8)

The Commission received a reaction from the complai-
nant by letter dated 16 April 2003, with no new infor-
mation or relevant additional facts. The Commission did
not receive any reaction from third parties on the
opening of the formal investigation procedure.

II. DETAILED DESCRIPTION OF THE ALLEGED AID

MEASURES

(9)

Three marinas, Enkhuizen, Nijkerk and Wieringermeer,
were subject to further investigation by the Commission.

A. Enkhuizen

(10)

The Enkhuizen municipality decided, in 1998, to build a
new harbour for large riverboats and tourist vessels.
Because of the construction of this new harbour, the
existing entrance of the sailing club KNZ&RV to the
river was to be closed. In order to compensate for the
closure of the entrance to the river the municipality took
three measures:

(a) the municipality provided a new opening to the

river for KNZ&RV at a nearby location;

(b) according to the municipality,

is

of

loss

total

revenue

calculated

the new opening
forced passing boats to make a detour in order to
reach the existing marina of KNZ&RV. According to
an independent report (ordered by the municipality),
lead to a 10 % decrease in the
the detour will
number of daily passing boats in the next 13 years.
The
at
EUR 80 700. To compensate for this loss, the muni-
cipality dredged part of
the water close to the
existing marina, in order to enable the club to create
105 moorings at its own expense at a later stage.
The Dutch authorities have provided an independent
report in which the costs of the dredging of the
future marina was compared to the costs
for
the loss of revenue due to the
compensation of
detour for passing boats. The total cost of the dred-
ging was EUR 96 655, which is approximately a
similar sum of money as that of the loss of revenue
due to the detour;

in that case,
According to the Dutch authorities,
Dutch appraisers commonly use a basic value per
m2, i.e. EUR 0,45 per m2. The total area of water
acquired by the sailing club was 26 000 m2, the
total
EUR 11 700
purchase
(26 000 × 0,45).

price was

thus

(11) According to the complainant, when an area of water in
this locality is destined to become a ‘marina’, the average
purchase price of this type of aquatic area is approxi-
mately EUR 15 per m2. As the area of water was delib-
erately sold to the sailing club in order to create future
moorings, the owner of the water (the municipality) was
aware of its future destination, hence the municipality
should have been aware of
economic value.
According to the complainant this area of water has a
value of EUR 390 000 (26 000 × 15).

its

B. Nijkerk

(12)

(13)

The Nijkerk municipality was the owner of a local
marina, which was built in 1966. The marina was priva-
tised in 2000 and sold to the tenant, the local sailing
club De Zuidwal. In 1998 the marina was independently
appraised at EUR 417 477. This was the appraisal price
for an unpolluted marina, with maintenance in good
order and, when rented out, the marina without a tenant
was appraised at EUR 521 847.

the marina was polluted and
In practice however,
suffered from a considerable lack of maintenance. In the
purchase agreement between the municipality and the
club dated 27 March 2000, the sailing club agreed on
taking on board all costs for purification of the water
and outstanding maintenance of the harbour facilities.
The municipality estimated the costs for outstanding
maintenance in 2000 at EUR 272 268 and that of puri-
fication at EUR 145 201. These estimations were carried
out by employees of the municipality, based on their
practical experience. The municipality deducted these
costs from the appraised value of the marina, resulting
in a purchase price of EUR 0,45 (one guilder) for the
whole marina.

(c) finally, the sailing club KNZ&RV was offered the
opportunity to purchase the dredged area of water
(26 000 m2) from the municipality at the same price
per m2 as the municipality had paid for the same
area of water in 1998 to the national authorities.
This price per m2 was determined by an independent
appraisal report dated 30 March 1998, in which the
appraiser concluded that this area of water (including
a large part of the lake) had no economic value.

(14) After

the Commission had asked questions on this
matter (by letter dated 11 February 2002), the Dutch
authorities gave instructions for a new independent
appraisal report on the costs for outstanding mainte-
In the report dated 22 July
nance and purification.
2002,
for outstanding maintenance were
the costs
appraised at EUR 200 000 and those of purification
were appraised at EUR 600 000.

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C. Wieringermeer

(15)

The Wieringermeer municipality sold an area of water
and land in 2000 to the company Jachtwerf Jongert. By
letter dated 10 July 2002 the Dutch authorities gave the
following overview of the appraised value of the land
and water concerned and actual purchase price:

Appraised value land:

EUR 5 719 854 (84 028 m2 at
EUR 64,07/m2)

Appraised value
water:

+ EUR 105 211 (69 031 m2 at
1,51/m2)

Total appraised value:

EUR 5 825 065

Total purchase price:

EUR 7 636 147

Difference purchase
price/appraisal:

EUR 1 811 082

III. GROUNDS FOR INITIATING THE PROCEDURE

(16)

The Commission considers marina activities as a regular
economic activity in the tourism sector. In Commission
decision of 7 January 2000 (N 582/99 — Italy, ‘Marina
di Stabia SpA’ (1)), the Commission concluded that in the
circumstances of that case, the public aid to that marina
strengthens its position compared with other marinas
competing in other Member States.

(17)

The alleged financial support
to marinas at hand is
funded by State resources. Thus, two out of four criteria
i.e. State resources and
for State aid are already met,
selectivity.

(18) As regards the notion of advantage, the Commission
stated as follows in its decision to initiate the procedure.

A. Enkhuizen

(19)

The Commission argued that the construction of the
new opening is a matter of compensation of infrastruc-
ture by the municipality because of the closure of the
previous entrance. This measure does not constitute
State aid within the meaning of Article 87(1) of the EC
Treaty. Also, the Commission considered the dredging as
the calculated loss of
a compensating measure for
revenue, which was caused by the closure of
the
previous entrance, carried out by the local authorities.
Therefore, neither does this measure constitute State aid
within the meaning of Article 87(1) of the EC Treaty.

(20) Nevertheless, in its decision to initiate the procedure the
Commission expressed doubts on the State aid element
in the sale of this area of water by the municipality to
the sailing club. On the basis of
the information
provided by the Dutch authorities and the complainant,
the Commission was not able to exclude a possible State

aid element, considering the price paid (EUR 11 700)
and the alleged value of the area (EUR 390 000). The
difference between these prices is EUR 378 300, which
is above the threshold laid down in Commission Regu-
lation (EC) No 69/2001 of 12 January 2001 on the
application of Articles 87 and 88 of the EC Treaty to de
minimis aid (2). The benefit for the sailing club KNZ&RV
was therefore estimated at EUR 378 300.

B. Nijkerk

(21) As regards the outstanding maintenance, the Commis-
sion agreed with the independent appraisal report and
the discount of EUR 200 000 on the appraised value of
the marina of 1998.

(22) As regards the costs for purification, the Dutch authori-
ties divided these costs to clean up the nearby river
(Arkervaart) and the marina. According to the Dutch
authorities the marina is connected to the river and this
river has many different sources of pollution which have
no relationship with the marina. Hence,
the Dutch
authorities decided that the sailing club is not liable for
any of the pollution, not even that of the marina. More-
over, as the purification turned out to be very expensive,
in the course of 2002 the municipality decided to take
25 % of these costs on its account. Thus, the sailing club
will pay EUR 450 000 of the purification costs. There-
fore, according to the Dutch authorities the sailing club
has
(i.e.
agreement
200 000 + 450 000 — 417 477 = EUR 232 522).

even lost on the purchase

(23) As regards the purification costs, the Commission, in its
decision to initiate the procedure, expressed doubts as to
whether the purchase deal was carried out under the
In
correct application of the ‘polluter pays’ principle.
principle the sailing club De Zuidwal was responsible
(and liable) for the pollution of its marina. Following this
principle,
should have been sold for
(417 477 — 200 000 =) EUR 217 477. In its decision
to initiate the procedure, the Commission calculated the
estimated benefit for the sailing club De Zuidwal there-
fore at EUR 217 477.

the marina

C. Wieringermeer

(24)

In its preliminary assessment the Commission concluded
that the price of the land seemed to be in order, as there
were various references to similar prices of land in the
appraisal
the water
report. The appraised value of
(69 731 m2 in total) at EUR 1,51/m2 seemed, however,
below market prices. There are no references or further
explanations about this appraised value in the appraisal
report.

(1) OJ C 40, 12.2.2000, p. 2.

(2) OJ L 10, 13.1.2001, p. 30.

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(25) Nevertheless, in order for there to be a problem of over-
compensation, the value of the area of water should
exceed (1) EUR 29,21/m2. This threshold is rather high,
thus overcompensation is not expected based on the
present figures. The Commission therefore informed the
complainant by letter dated 8 August 2002 that there is
no evidence found of illegal State aid.

(26)

the complainant
By letter dated 3 September 2002,
informed the Commission that the municipality artifi-
cially created the land in the lake, which is a very expen-
sive technique. The costs of reclaiming the land were
EUR 9 892 409. As the land was reclaimed less than
three years before it was sold, the behaviour of the
municipality does not seem to be in line with point
II(2)(d) of the Commission Communication on State aid
elements in sales of land and buildings by public authori-
ties (2).

(27) As regards the effects on trade between Member States
(fourth criteria for State aid within the meaning of Art
87(1) of the EC Treaty), the Commission admitted that
the activities of the marinas at hand could be rather
marginal.

(28) Nevertheless, in its decision to initiate the procedure the
Commission could not rule out the exclusion of effects
on trade per se, be this only due to the mobility, by
nature, of the pleasure craft.

(29)

(30)

Therefore, the Commission was required to initiate the
formal investigation procedure as its initial examination
did not enable it to resolve all the difficulties raised by
the question as to whether the measure under considera-
tion constitutes State aid within the meaning of Article
87(1) of the EC Treaty. In this context, the Commission
asked for specific information on each of the marinas
and globally for the Dutch marine sector, whose share of
annual turnover is generated by permanent or temporary
mooring of boats from Member States other than the
Netherlands.

Furthermore, as regards the compatibility of this aid, the
Commission argued that no derogation provided by the
EC Treaty seemed applicable. The derogations of Article
87(2) and (3)(b) or (d) of the EC Treaty are manifestly
irrelevant. The Dutch authorities did not argue, and the
Commission did not find that
the aid could have a
regional development purpose according to Article
87(3)(c) of the EC Treaty (3). The aid does not seem to
promote any horizontal Community objective according
to Article 87(3)(c) of the EC Treaty such as research and
development, employment, training, environment, small
and medium sized enterprises or rescue and restruc-

(1) EUR 7 636 147 – EUR 5 719 854

(appraised

land) =

EUR 1 916 293 + EUR 100 000 (de minimis) = EUR 2 016 293.
EUR 2 016 293/69 031 m2 = EUR 29,21/m2.

(2) OJ C 209, 10.7.1997, p. 3.
(3) There is no area in the Netherlands covered by Article 87(3)(a).

turing within the meaning of the relevant guidelines and
frameworks. Finally,
find
appropriate to favour the development of the marina
sector within the meaning of Article 87(3)(c) of the EC
Treaty.

the Commission does not

IV. COMMENTS FROM INTERESTED PARTIES

(31)

The Commission received a letter dated 16 April 2003
from the complainant with no new information or rele-
vant additional facts as regards the three marinas at
stake. The Commission did not receive any reaction
from third parties.

V. COMMENTS FROM THE NETHERLANDS

(32)

(33)

(34)

The Dutch authorities reacted by letter dated 22 April
2003. The Dutch authorities take a twofold approach in
their answer to the opening of the procedure.

First of all the Dutch authorities are of the opinion that
no advantage is at hand, as the financial public support
(if any) would be minimal and fall under the de minimis
threshold. The Dutch authorities have provided addi-
tional information to support their view.

Secondly, the Dutch authorities are of the opinion that
even if the public support were to be higher than the de
minimis threshold, there would still be no effect on trade,
hence no State aid within the meaning of Article 87(1)
of the EC Treaty. Hereto, the Dutch authorities have
provided statistical information on the Dutch and Euro-
pean marina markets.

(35) As regards Enkhuizen, the Dutch authorities remain of
the opinion that the alleged value of the aquatic area
was EUR 0,45 per m2, based on the independent
appraisal report dated 30 March 1998 (in which the
appraiser concluded that
this aquatic area had no
economic value, hence a standard price of one guilder
per m2). The Dutch authorities did not contest the other
economic indicators.

(36) Next the Dutch authorities have provided some addi-
tional statistical information on the Enkhuizen marina.
These are all figures from 2002:

Total number of moorings:

235

Annual turnover fixed moorings:

EUR 257 500

Share of foreign users fixed moorings: 10 %

Annual turnover daily moorings:

EUR 58 164

Share of foreign users daily moorings: 30 %.

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(37)

remain of

the Dutch authorities

the
Furthermore,
opinion that the sailing club is not liable for any of the
pollution, not even that of the marina. The sludge found
in the marina is of the same substance as the sludge
found in the nearby River Arkervaart, hence there can
be no proof of any pollution by the users of the marina.

(38) Also, the Dutch authorities are of the opinion that a
marina sold to the existing tenant should be sold at the
market price taking into account the rental of the prop-
erty. The Dutch authorities are of the opinion to reason
from the viewpoint of the municipality: there would not
be any difference in selling the marina to the tenant or
to a new owner who would also acquire the tenant. In
both cases the municipality would get the same price,
hence it would be unfair to ask the sailing club for a
higher price.

(39) Next

the Dutch authorities have provided additional
statistical information on the Nijkerk marina. These are
all figures from 2002:

Annual turnover fixed moorings:

EUR 117 000

Share of foreign users fixed moorings: 0 %

Annual turnover daily moorings:

EUR 3 000

Share of foreign users daily moorings: 10 %.

(40)

Finally on Wieringermeer the Dutch authorities agreed
that the construction costs to create the land artificially
in the lake were EUR 9 892 409. However, the Dutch
authorities indicated that these costs do not only include
the costs of creating the future marina, but also the cost
of financing public works, such as wetlands, sewerage, a
junction road etc. The total costs of the public works are
EUR 4 559 248. Hence, the net construction costs for
the marina were EUR 5 333 161. The total purchase
price was well above these construction costs, hence the
Dutch authorities concluded that there is no advantage
to the alleged beneficiary. The Dutch authorities did not
information on the marina at hand,
provide statistical
since it has not yet been built.

VI. ASSESSMENT OF THE MEASURES

(41)

In order for a measure to be considered as State aid
within the meaning of Article 87(1) of the EC Treaty,
four criteria have to be simultaneously satisfied. It must
favour undertakings (or productions); it must be selec-
tive; it must be funded through State resources; and it

must affect trade between Member States. In the present
case, the measures are clearly financed by local authori-
ties through their budgets and concern three specific
marinas. The criteria of State resources and selectivity
are therefore clearly met.

(42) As regards the notion of advantage, the findings of the

Commission are as follows.

A. Enkhuizen

(43)

(44)

(45)

(46)

If

is appropriate.

The Commission remains of the opinion that it is not
likely that the low value of the water area indicated by
locally the
the Dutch authorities
aquatic area is destined to become a marina, this area
will have some market value and cannot be considered
‘worthless’. According to the letter of the Dutch authori-
ties dated 22 April 2003, the Dutch marina market is
highly competitive and there is a great demand for
moorings in this area of
the
purchase price of the aquatic area remains disputable.
The difference of opinion concerns EUR 378 300,
the alleged State aid. The
which is the majority of
Commission cannot therefore exclude the granting of an
advantage
through the
measure.

to the Enkhuizen marina

the Netherlands. Thus,

B. Nijkerk

There are no clear appraisal reports on the pollution in
the Nijkerk marina and it is not clear to what extent the
sailing club is or could be held responsible for (part of)
the pollution. It seems rather doubtful that the sailing
club is not at all liable.

The Commission does not agree with the Dutch authori-
ties that the marina was sold to the tenant itself for a
purchase price including a tenant. After all, due to the
purchase, the De Zuidwal obtained full free use of the
marina. The sailing club could have sold the harbour
immediately and made a profit of EUR 95 370 (i.e. the
difference between the two appraisal prices, with and
without tenant).

Therefore, the Commission remains in doubt as to the
the
liability and the value of
marina.
concerns
difference
The
EUR 312 847, which is all of the alleged State aid. The
Commission cannot therefore exclude the granting of an
advantage to the Nijkerk marina through the measure.

the purchase price of
opinion

of

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C. Wieringermeer

(47) As regards the Wieringermeer marina, the Dutch autho-
rities have provided sufficient additional information in
order to conclude that no advantage is at stake. The
construction costs of the marina cumulated with the
price of the aquatic area are much smaller than the
purchase price. In order for the aid to be greater than
EUR 100 000, the value of the water should exceed
EUR 34,81/m2, which is clearly too high (1). As no
advantage is granted, the sale of this marina does not
constitute State aid within the meaning of Article 87(1)
of the EC Treaty.

(48) As regards the two remaining marinas (Enkhuizen and
Nijkerk) the Commission has examined the effect on
trade criterion. A reference case in this respect is the
Commission decision concerning the Dorsten Swimming
Pool (2). In this case the Commission concluded that this
amenity was used by the inhabitants of the town and the
surrounding area. Moreover,
the Commission distin-
guished a clear difference between this kind of support
and aid to promote major theme parks targeted at the
national or even international market and advertised far
beyond the area where they are located. The Commis-
sion concluded that, by its very nature, aid in favour of
facilities aimed at attracting international visitors is likely
to affect trade between Member States. For the swim-
ming pool in Dorsten the Commission took the view
that there was practically no likelihood of intra-Com-
munity trade being affected. Therefore,
the annual
subsidy for the private operator of the pool in Dorsten
did not constitute State aid within the meaning of
Article 87(1) of the EC Treaty.

(49)

In the Netherlands there are about 203 000 moorings in
about 1 200 marinas. The total number of pleasure
boats in the Netherlands is estimated at 375 000. The
total number of pleasure boats in the European Union is
at least 5 million; there are more than 10 000 marinas
in the EU, providing more than 1,5 million moorings
(not all moorings are in marinas) (3). Thus, most pleasure
boats are not located at a mooring, but either beached
on shore or at moorings on open water.

(50)

The Nijkerk marina has 200 moorings, of which, on
average only 0,25 % are used by foreign tourists, which
is insignificant to the national mooring market. There-
fore, the Commission concludes that the Nijkerk marina
the town and the
is used by the inhabitants of

(1) EUR 7 636 147 – EUR 5 333 161

(construction

costs)

=

EUR 2 302 986 + EUR 100 000 (de minimis) = EUR 2 402 986;
EUR 2 402 986/69 031 m2 = EUR 34,81/m2.

(2) Commission decision of 21.12.2000, N 258/2000 — Germany

(Leisure Pool Dorsten), OJ C 171, 16.6.2001, p. 16.

(3) These figures are from ICOMIA (International Council of Marine
Industry Organisations, see also http://www.icomia.com) and the
report ‘La Nautica in cifre’ of UCINA (Unione Nazionale Cantieri e
Industrie Nautiche ed Affini, see also http://www.ucina.it). As there
are no clear statistics available, these are rough estimates.

surrounding area and it is not aimed at attracting inter-
national visitors. The aid does not deter Nijkerk's inhabi-
tants from using marinas outside the Netherlands. Even
if this were the case, the effect on trade would be insig-
nificant given the number of inhabitants in Nijkerk (less
than 40 000). Finally, it should be noted that the annual
turnover of the Nijkerk marina is EUR 120 000. Thus,
the support to the Nijkerk marina (if any) does not have
an effect on trade and is therefore not State aid within
the meaning of Article 87(1) of the EC Treaty.

(51)

In the Enkhuizen marina, on average 14 % of the moor-
ings are used by international tourists (4). Nevertheless,
the 235 Enkhuizen moorings represent only 0,15 % of
the Dutch mooring market and 0,016 % of
the EU
mooring market. Therefore, the impact of the Enkhuizen
harbour on the marina market is very limited.

(52) Moreover, it is important to make a distinction between
fixed moorings and daily moorings. It is likely that an
effect on trade of the support (if any) would primarily be
related to the fixed moorings (permanent location of a
boat).

(a) It is mainly for fixed moorings that the user has a
real choice between the Enkhuizen marina or a
foreign one, as the (international) owner or long
term tenant of the boat decides, before or at the start
it
of the season, where to dock.
should be noted that the share of fixed moorings by
In
international users is only 10 % at Enkhuizen.
fixed
addition,
mooring (less
low
than EUR 1 000)
compared with the costs of maintenance, transport,
financing and depreciation of pleasure boats and the
additional costs of a marine holiday.

turnover per
rather
is

the average annual

In this context,

(b) The effect on trade of any support to daily moorings
is by nature very limited. An (international) boat
owner or tenant uses the marina which corresponds
to the place where he is at a certain date and time
and which appears to be appropriate given the size
and depth of the boat's hull. His choice is often very
limited. In the present case, the turnover generated
by the Enkhuizen marina for all daily moorings only
represents 18 % of it's total turnover, of which only
30 % originates from international tourists.

(53)

Finally, it should be noted that the annual turnover of
the marina in Enkhuizen is EUR 316 000.

(4) Weighted average between fixed and daily moorings.

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(54)

(55)

(56)

(57)

(58)

follows from the above that

to the
It
Enkhuizen marina (if any) does not have an effect on
trade and is therefore not State aid within the meaning
of Article 87(1) of the EC Treaty.

the support

Therefore, the Commission can conclude that, even if
some distortion of (local) competition is not excluded,
the support (if any) has no effect on trade within the
meaning of Article 87(1) of the EC Treaty. In particular,
in these cases, also due to the geographical location of
the marinas, their relatively small size, and the relatively
small amounts of public support involved (in compar-
ison with the number of moorings offered in the
marinas),
it can not reasonably be expected that this
support will lead ship owners from other Member States
to use the marinas concerned for mooring (be it fixed or
daily) rather than a marina in another Member State.

This does not contradict the current case-law of the EU
Courts on the effect on trade. In Tubemeuse (1) the Court
of Justice held that ‘(…) the relatively small size of the
undertaking which receives (the aid) does not as such
exclude the possibility that intra-Community trade might
be affected’. This does not mean that the insignificant
size of a company taken together with other features of
the case cannot lead to the conclusion that State aid
granted to this company does not affect
intra-Com-
munity trade.

in Vlaamse Gewest (2),

the Court of First
Similarly,
Instance states that ‘the prohibition in Article 92(1) of
the Treaty applies to any aid which distorts or threatens
to distort competition,
the amount
insofar (3) as it affects trade between Member States’.

irrespective of

the findings of

the Commission are not

Finally,
in
contradiction with its own practice as regards marinas.
In this respect, it should be emphasised that the afore-
mentioned Commission decision of 7 January 2001
relates to a marina which was of much greater size than

(59)

(60)

Nijkerk and Enkhuizen and which had been the subject
of a notification under the multisectoral framework on
regional aid for large investment projects (4).

The Commission is of the opinion that it is sufficiently
proven that trade is not affected in the present case. In
addition, the Dutch marinas sector seems to currently
encounter some problems due to some over-capacity,
but that is not the case at all at EU level, where the
market is growing.

VII. CONCLUSION

The Commission can conclude for the specific Dutch
marinas at hand that no State aid within the meaning of
Article 87(1) of the EC Treaty is at stake. For one marina
(Wieringermeer) no advantage is at stake. For the others
(Enkhuizen and Nijkerk), the measure does not affect
trade between Member States,

HAS ADOPTED THIS DECISION:

Article 1

The measures in favour of non-profit making harbours for
recreational crafts in Enkhuizen, Nijkerk and Wieringermeer do
not constitute State aid within the meaning of Article 87(1) of
the EC Treaty.

This Decision is addressed to the Netherlands.

Article 2

Done at Brussels, 29 October 2003.

For the Commission

Mario MONTI

Member of the Commission

(1) See Judgment of the Court of 21 March 1990 in Case C-142/97
Belgium v Commission [1990] ECR I-959. See also Judgment of 14
September 1994 in Joined Cases C-278/92 to C-280/92 Spain v
Commission [1994] ECR I-4103.

(2) Judgment of the Court of First Instance of 30 April 1998 in Case T-
214/95 Het Vlaamse Gewest v Commission, points 46, 49 and 50

(3) Emphasis added.

(4) OJ C 107, 7.4.1998, p. 7.