2004/340/EC: Commission Decision of 5 November 2003 concerning aid to the company González y Díez S.A. to cover exceptional costs (aid for 2001 and incorrect use of the aid for 1998 and 2000), amending Decision No 2002/827/ECSC (notified under document number C(2003) 3910) (Text with EEA relevance)
Date: 2003-11-05
Institutions: European Commission
Subjects: State aid, coal industry, control of State aid

L 119/26

EN

Official Journal of the European Union

23.4.2004

COMMISSION DECISION

of 5 November 2003

concerning aid to the company González y Díez S.A. to cover exceptional costs (aid for 2001 and
incorrect use of the aid for 1998 and 2000), amending Decision No 2002/827/ECSC

(notified under document number C(2003) 3910)

(Only the Spanish text is authentic)

(Text with EEA relevance)

(2004/340/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

of Decision 2002/827/ECSC and replacing the latter by
a new final decision.

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

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

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

(3)

(4)

The Commission's decision to initiate the procedure was
published in the Official
the European
Communities (3). The Commission gave interested parties
the
representations
to make
concerning the aid in question.

opportunity

Journal

their

of

received

Commission

The
from
interested parties. It communicated these representations
to Spain, providing the opportunity to comment on
them, but received no comments.

representations

2. BACKGROUND

2.1. Notification dates

Whereas:

(1)

(2)

1. PROCEDURE

On 2 July 2002 the Commission adopted Decision
2002/827/ECSC (2) which ruled that aid to the company
González y Díez S.A to cover exceptional costs was
incompatible with the common market — aid in respect
of 2001 and incorrect use of the aid in respect of 1998
and 2000 — and stipulated the recovery of the said aid.

(5)

The notification dates prior to aid for the coverage of
exceptional costs of the company González y Díez S.A.
and the dates of the letters communicating the granting
of aid to González y Díez S.A., are as follows:

1998:

(a) prior notification:

31 March 1998

(b) grant of aid:

16 April 1999

In a letter dated 19 February 2003 the Commission,
after having reexamined the file and its Decision
2002/827/ECSC and having regard to certain arguments
presented by the said company in the context of case
T-291/02 heard by the Court of First Instance of the
European Communities, informed Spain of its decision
to initiate the procedure laid down in Article 88(2) of
the Treaty with a view to repealing Articles 1, 2 and 5

2000:

(a) prior notification:

5 October 1999
(supplemented by letters
dated
and
July
24
8 November 2000)

(b) grant of aid:

19 March 2001

(1) OJ C 87, 10.4.2003, p. 17.
(2) OJ L 296, 30.10.2002, p. 80.

(3) See footnote 1.

23.4.2004

EN

Official Journal of the European Union

L 119/27

2001:

(a) prior notification

21 November 2000
(supplemented by letters
dated 19 and 21 March
2001)

Response from Spain: 28 February 2002

Commission:

10 April 2002

Response from Spain: 24 April 2002

(b) grant of aid:

13 May 2002

2.4. Decision No 2002/827/ECSC

2.2. Commission Decisions

(11)

(6)

(7)

(8)

(9)

Regarding the aid in 1998: Decision 98/637/ECSC (4)
authorising a global amount for aid to all companies in
the sector in Spain.

Regarding the aid in 2000: Decision 2001/162/ECSC (5)
authorising a global amount for aid to all companies in
the sector in Spain.

Regarding the aid in 2001: Decision 2002/241/ECSC (6)
announcing that
the Commission would decide at a
later date on aid to González y Díez S.A.

Decision 2002/827/ECSC did not authorise the aid to
González y Díez S.A. notified for 2001. On the other
hand the said decision considered that part of the aid
granted for the years 1998 and 2000 had been used
incorrectly and should be recovered.

In effect

authorised

in 1998 and 2000.

From a material point of view the object of Decision
2002/827/ECSC was, on the one hand, the incorrect use
of certain aid received by the company González y Díez
S.A.
the Commission
considered that the conditions under which that aid had
been
by Decisions 98/637/ECSC and
2001/162/ECSC had not been respected. On the other
hand, Decision 2002/827/ECSC had also ruled on
certain notified aid for 2001, which had been advanced
by Spain to the
and which was not
considered to be compatible with the provisions of
Article 5 of Commission Decision No 3632/93/ECSC of
28 December 1993 establishing Community rules for
industry (7). As regards form,
State aid to the coal
Decision 2002/827/ECSC had been adopted on the basis
of the ECSC Treaty and within the framework of the
procedure laid down in Decision 3632/93/ECSC.

company,

2.5. Appeal for annulment

(12) On 17 September 2002 the company González y Díez
S.A.
Decision
2002/827/ECSC before the Court of First Instance (case
T-291/02).

presented

against

appeal

an

2.3. Letters of information concerning aid to cover

exceptional costs of the company González
y Díez S.A.

2.6. Grounds justifying the reopening of the
proceedings

(10)

Commission:

25 October 1999

(13)

Response from Spain: 2 December 1999

Commission:

17 December 1999

Commission:

7 September 2000

Response from Spain: 8 November 2000

Commission:

warning of 24 April 2001

Response from Spain: 29 June 2001

Commission:

17 July 2001

Commission:

14 December 2001

In light of some of the arguments presented during the
said appeal for annulment to the Court of First Instance
and after having reexamined the file and its Decision,
the Commission expressed its doubts about whether the
procedural rules applicable had been fully respected.
These doubts relate in particular to whether its letter of
13 December 2001 should be regarded as a letter of
formal notice or as advance warning of formal notice.
Even though the problems to which the case relates had
been mentioned publicly in Decision 2002/241/ECSC
published in the Official
the European
Communities (8),
the letter and the
beneficiary of
the letter's
wording, consider that
the matter had not officially
reached the phase of ‘formal notice'. The Commission
also indicated that
currently
applicable to the sectors previously governed by the

the addressee of

the procedural

the aid could,

in light of

Journal

rules

of

(4) OJ L 303, 13.11.1998, p. 57.
(5) OJ L 58, 28.2.2001, p. 24.
(6) OJ L 82, 26.3.2002, p. 11.

(7) OJ L 329, 30.12.1993, p. 12.
(8) See footnote 6.

L 119/28

EN

Official Journal of the European Union

23.4.2004

for

ECSC Treaty, i.e. Article 88(2) of the EC Treaty, as set
in Council Regulation (EC) No 659/1999 of 22
out
March 1999 laying down detailed rules
the
the EC Treaty (9), offer
application of Article 93 of
better guarantees than those of the ECSC Treaty for full
the
respect of
beneficiary company and all other interested parties.
The Commission therefore decided to reopen the formal
proceedings with a view to repealing Articles 1, 2 and 5
of Decision 2002/827/ECSC and replacing the latter by
a new final decision, and informed Spain thereof in a
letter dated 19 February 2003.

the Member State,

rights of

the

(17)

(18)

(19)

(20)

3. DETAILED DESCRIPTION OF THE AID

3.1. Aid to cover exceptional costs for the years
1998 and 2000, and its use

Pursuant to Article 5 of Decision No 3632/93/ECSC,
Spain granted the company González y Díez S.A. aid
totalling 651 908 560 pesetas (EUR 3 918 049.35) for
the
(EUR
year 1998 and 463 592 384 pesetas
2 786 246.34) for the year 2000, to cover exceptional
costs
the coal
industry and unrelated to current production (liabilities
inherited from the past).

resulting from the restructuring of

the

to cover

That aid was granted to the company González y Díez
closing down annual
cost of
S.A.
production capacities of 48 000 tonnes in 1998 and
38 000 tonnes in 2000. The company's production
capacity therefore had to change from 286 000 tonnes
per year at the beginning of 1998 to 238 000 tonnes
per year by the end of that year and from 238 000
tonnes per year at the beginning of 2000 to 200 000
tonnes per year by the end of
that year. Those
production capacity cuts were to take place in 1998 at
the open-cast mine of Buseiro and in 2000 at
the
(subsector Prohida)
underground mine of Sorriba
(26 000 tonnes) and at the open-cast mine of Buseiro
(12 000 tonnes).

The plans by the company González y Díez S.A. to cut
production capacity in the years 1998 and 2000 were
the
framework of
included in the
modernisation,
and
reduction of activity 1998 to 2000', notified by Spain to
the Commission and to which the Commission had

the
restructuring

rationalisation,

‘Plan for

(14)

(15)

(16)

(9) OJ L 83, 27.3.1999, p. 1.

given its consent in its Decision No 98/637/ECSC in
accordance with the principles
and objectives of
Decision No 3632/93/ECSC. The 1998 to 2002 Plan
notified by Spain envisaged global coal production
capacity reductions without specifying individual targets
for the companies, since these had to submit proposals
for the closure of production units, the reduction of
production capacity or if necessary both, to be able to
qualify under certain conditions for the aid mentioned
in Article 5 of Decision No 3632/93/ECSC.

The Commission decided to analyse the granting of aid
to González y Díez S.A. to cover exceptional costs in
light of the information published in the press as a
result of the 100 % acquisition of that company by Mina
la Camocha S.A. on 23 July 1998.

for

the shares of

the year 1998 of

The Commission analysed the annual management
report
the company Mina la
Camocha S.A. and deduced that on 23 July 1998 the
company had acquired 100 % of
the
company González y Díez S.A. at a purchase price of
784 439 000 pesetas. The balance sheet of the company
Mina la Camocha S.A. on 31 December 1998 indicates
financial assets amounting to 784 439 000 in total,
entered as ‘Holdings in the companies of the group'. On
the liabilities side of the balance sheet there is a sum
totalling 700 million pesetas entered as
to
the
companies of
management
that on 29 and 30
December 1998 the company González y Díez S.A.
transferred funds to the company Mina la Camocha S.A.
totalling 600 million pesetas and 100 million pesetas
respectively.

group'. Note No 15 of
specifies

the
report

‘debts

the

report of

annual management

company
The
González y Díez S.A. relating to the financial year 1998
shows that
the company received State aid totalling
651 908 560 pesetas to compensate its coal production
cut by 48 000 tonnes per year. The operating account
net
1998
for
operational
The
management report of the company González y Díez
S.A. also shows that on 29 and 30 December 1998
funds were
la
Camocha S.A. in amounts of 600 million pesetas and
100 million pesetas respectively.

completely
700 015 591

exceptional
pesetas.

transferred to the

company Mina

shows
profit

a
of

The management report of the company González y
Díez S.A. explains that on 11 November 1998 the
company signed a rider to the contract of 13 March
1998 with Unión Eléctrica Fenosa SA reducing by
48 000 tonnes the quantity of coal it had to supply to
Térmica de Soto de la Barca, which thus amounts to
238 000 tonnes per annum for the period 1999-2000.
The report makes no reference to closure of installations
in production and
as a consequence of
mentions changes made to the exploitation systems

this cut

23.4.2004

EN

Official Journal of the European Union

L 119/29

which had resulted in a reduction in the activities of
open-cast subcontractors, with González y Díez S.A.
itself having carried out virtually all the coal extraction
activities.

(25)

Taken together,
indicated:

the

above

information therefore

(21) Having analysed the accounts of the company González
y Díez S.A. for the financial year 1998, the Commission
the aid totalling 651 908 560 pesetas
checked that
granted to the company to cover the technical costs of
closing down extraction installations corresponding to
an annual production capacity reduction of 48 000
tonnes was entered in the company's accounts as an
operational profit. The Commission was unable to
identify the costs related to the annual production
capacity reduction of 48 000 tonnes.

The gross operating profit of the company González y
Díez S.A.
in the financial year 1998 amounted to
998 185 023 pesetas and the net profit in the financial
year to 700 015 591 pesetas. The profits for 1998 are
far larger than those in previous financial years, which
amounted to 141 084 825 pesetas
in 1997 and
65 722 182 pesetas in 1996. The result for the financial
year 1999 was a loss of 408 740 pesetas. The 1998
profit on 30 June of that year, i.e. before 100 % of the
shares of González y Díez S.A. were acquired by Mina
la Camocha S.A., amounted to 50 420 961 pesetas.

The transfers of 600 million pesetas and 100 million
pesetas from González y Díez S.A. to Mina la Camocha
S.A. on 29 and 30 December 1998, respectively, were
apparently made possible by the profit González y Díez
S.A. earned in the financial year 1998 from the aid to
cover exceptional closure costs.

(26)

(27)

(22)

(23)

(24)

is twice that of

The acquisition of the company González y Díez S.A.
by Mina la Camocha S.A. on 23 July 1998 could be
explained by the prospect of receiving an extraordinary
payment
resulting from the State aid expected for
reducing the quantities of coal stipulated in the contract
between González y Díez S.A. and the electricity
company.
In effect, according to the management
reports the value of the company acquired (González y
Díez S.A.)
the purchasing company
(Mina la Camocha S.A.). Moreover, the company Mina la
Camocha S.A. has a very weak financial structure:
its
total assets, worth 22 443 136 000 pesetas on 31
December 1998,
its own
capital amounting to 481 403 000 pesetas on the same
date. The company Mina la Camocha S.A. is also subject
to a closure plan and receives each year aid for the
reduction of activity pursuant to Article 4 of Decision
No 3632/93/ECSC. For its part, the company González
y Díez S.A. receives operational aid each year pursuant
to Article 3 of that Decision.

forty-six times

represent

(a)

the capital of González y Díez S.A. was
that
acquired in total on 23 July 1998 by the company
Mina la Camocha S.A. for a price of 784 million
pesetas;

(b) that during the course of the financial year 1998
González y Díez S.A. received 652 million pesetas
of aid as compensation for a supposed production
capacity cut of 48 000 tonnes;

(c)

that during the course of the financial year 1998,
González y Díez S.A.
recorded net profits of
approximately 700 million pesetas;

(d) that at

the end of 1998 González y Díez S.A.
transferred approximately 700 million pesetas to
Mina la Camocha S.A.

information suggests that

This
the aid received by
González y Díez S.A. greatly exceeded the costs of the
supposed capacity reduction, since they were entered
entirely as operational
income and these exceptional
profits could be transferred to the parent company.

costs. However,

In the report sent by Spain on 2 December 1999 the
company González y Díez S.A. acknowledged that the
operating profit for the financial year 1998 included aid
intended to cover the
totalling 651 908 560 pesetas,
exceptional
company
the
closure
González y Díez S.A. stressed that
the payments in
question were two loans from one company to the
other, which were repaid with interest before 2 August
1999. As regards the exceptional closure costs,
the
company's report does not verify the exceptional costs
resulting from the restructuring of González y Díez S.A.
In contrast,
to expenditure of
319 896 354 pesetas corresponding to the repayment of
loans and subsidies unrelated to the restructuring for
the period 1998 to 2000, expenditure of 232 589 000
pesetas on investment
for open-cast
operation, and expenditure of 158 973 459 pesetas on
investment for the modernisation of the underground
mines.

in equipment

report

refers

the

(28)

In a letter dated 19 March 2001 Spain informed the
Commission that it had granted further aid to González
y Díez S.A. totalling 463 592 384 pesetas for the year
2000, to cover the exceptional costs of cutting annual
production by 38 000 tonnes in that year.

L 119/30

EN

Official Journal of the European Union

23.4.2004

(29)

The Commission analysed the management report of
the company González y Díez S.A. for the year 2000
and found that the aid totalling 463 592 384 pesetas
had been accounted for as operational income, while it
was not possible to identify in the company's accounts
the expenditure occasioned by the closure of production
capacities. The
in 2000 was
operational profit
217 383 757 pesetas, so that the accounts would have
recorded a loss if the company had not received the aid
of 463 592 384 pesetas
costs of
production capacity cuts.

to cover

the

3.2. Aid to cover exceptional costs in the year 2001

(30) Without

the Commission's prior authorisation, Spain
granted the company González y Díez S.A. aid totalling
383 322 896 pesetas (EUR 2 303 817)
the year
2001, which was intended to cover the costs of cutting
annual production capacity by 34 000 tonnes. This
reduction was to take place in 2001 at the underground
mine of Sorriba (Prohida subsector). The company's
production would change from 200 000 tonnes per
year at the beginning of 2001, to 166 000 tonnes per
year at the end of that year.

for

(31)

(32)

(33)

(34)

In Decision 2002/241/ECSC the Commission did not
rule on aid totalling 394 000 000 pesetas which Spain
planned to grant to González y Díez S.A. for the year
2001 (the aid notified exceeded the aid granted)
to
cover exceptional restructuring costs. The Commission
justified its decision not to rule on that aid on the
grounds that it was awaiting an analysis of information
to be communicated by Spain on the aid granted to the
said company for the years 1998 and 2000.

In a letter dated 13 December 2001 the Commission
requested Spain to provide information on the aid
totalling 383 322 896 pesetas (EUR 2 303 817)
that
Spain had granted to González y Díez S.A. in 2001.

In letters dated 28 February 2002 and 24 April 2002,
Spain sent
the Commission the technical reports of
González y Díez S.A. dated 13 February and 26
closing down
February 2002, on the
installations in 2001.

costs of

from González y Díez S.A. dated 26
In the letter
February 2002, which Spain sent to the Commission on
28 February 2002, the company states that the value of
the mining operations abandoned as a result of
the
reduction of activity in 1998, 2000 and 2001 amounts
to 657 700 000 pesetas.

(35) On 13 May 2002 Spain notified the Commission that
the aid for 2001 totalling 383 322 896 pesetas (EUR
2 303 817) had already been paid to the company.

4. REPRESENTATIONS BY INTERESTED PARTIES

(36)

In the context of the present proceedings the company
González y Díez S.A. sent its representations to the
Commission by means of:

(a) a letter dated 28 April 2003 to the Institute for the
restructuring of coal mining (Ministry of Finance),
forwarded to the Commission with a letter from
Spain dated 30 April 2003 and accompanied by a
endorsed by mining experts and other
report
supplementary documents;

(b) a letter dated 26 May 2003 sent directly to the
for Energy and

Commission's Directorate General
Transport by the law office Uría & Menéndez.

The report endorsed by mining experts responds to the
‘request for information' (point 5) of the Commission's
decision initiating the present proceedings (10).

(37) After

some

initial

considerations on the mining
operations at the La Prohida subsector of the Sorriba
Group (underground operation) and the Buseiro Group
(open-cast operation), the report justifies the costs of
reducing activity in the years 1998, 2000 and 2001.

The information submitted is much more complete than
that sent to the Commission in the proceedings that led
to Decision No 2002/827/ECSC, and includes new
elements.

y Díez

S.A. modifies

in the information relating to the present
In effect,
proceedings González
its
presentation of the facts compared with the proceedings
leading to Decision 2002/827/ECSC. The company now
justifies the expenditures incurred for all the closure
operations in the La Prohida subsector of the Sorriba
Group,
instead of continuing to do this only for the
abandonment of 170 000 tonnes above level 3 of the
said subsector.

endorsed by independent

According to this new presentation of the facts, the
the
report
following (in summarised form) about the expenditures
associated with the closure of the La Prohida subsector
of the Sorriba Group:

experts

says

(10) See footnote 1.

23.4.2004

EN

Official Journal of the European Union

L 119/31

(a)

length of the galleries dug at level 3 to
the total
work the 170 000 tonnes abandoned is 1 030
metres, representing a total cost of EUR 738 523.68
(122 880 000 pesetas);

This work was entered as an operational cost in the
company's accounts; for that reason it cannot be
identified in the fixed-asset capital of the situation
balance on the date of their abandonment;

(b) the total length of the galleries abandoned at level 3
of the La Prohida subsector and which were used for
working the reserves above level 3 is 1 640 metres,
of which 1 496 metres feature in the register of
fixed-assets with a residual value of EUR 610 716.04
(101 614 599 pesetas) on 31 December 2001;

(c)

the total length of the galleries abandoned at levels
2 and 4 of the La Prohida subsector is 1 625 metres,
of which 1 093 metres feature in the register of
fixed
EUR
395 808.55 (65 857 001 pesetas) on 31 December
2001;

assets with a

residual

value

of

(d) the length of the galleries abandoned at the 1st level
assigned to the La Prohida subsector is 490 m; the
residual value of
these galleries and other assets
abandoned in this subsector, as featured in the
fixed-asset
1 046 970.83
(174 201 288 pesetas) on 31 December 2000;

records, was

EUR

(e)

(f)

the entire La Prohida
thus, the residual value of
subsector,
including the galleries entered in the
fixed-asset register and the remaining fixed assets,
amounts
(EUR
341 672 888
2 053 495.41) according to the company's accounts;

pesetas

to

the experts add that of this total nothing was yet
imputed to losses of assets
in the balance of
22 404 600 pesetas (EUR 134 654.36), of which an
amount of 19 417 316 pesetas (EUR 116 700.42) will
constitute a loss in the financial year 2003, given
that
(EUR
the difference of 2 987 284 pesetas
17 953.94) is recorded in the financial years 2001
and 2002 as an amortisation;

for

the

(g) the report endorsed by independent experts justifies
the work to modify the ventilation circuit by the
to
Tres Hermanos
need
communicate with level 1 of La Prohida; for that
reason various inclined planes were created along
with other work in the ‘Tres Hermanos' sector
located at a lower level than La Prohida; the total
cost was EUR 602 146 29 (100 188 713 pesetas);

subsector

the same work was evaluated in the document from
Uría
698 489.70
& Menéndez
(16 218 907.20 pesetas);

EUR

at

(h) the refurbishment of the outside at the La Prohida
incurred expenditure of EUR 61 609.60

sector
(10 250 975 pesetas);

(i)

the company provided an allowance in the balance,
of EUR 601 012.10 (100 000 000 pesetas)
in
anticipation of possible expenses incurred on the
outside of the mine.

(38) As regards the open-cast mining sector of Buseiro, the
report endorsed by independent experts confirms that
until 1998 the deposit had been worked integrally, i.e.
the overhead and wall veins of seam I. The movements
of excavation residues and the mine waste tips produced
until now correspond with the integral working of the
said seam I.

the time when the trough of

the syncline was
At
worked,
it was decided to abandon the wall vein of
seam I because of the poor quality of the coal. However,
according to the experts in the northern zone of the
trough
at
1 005 080 m3 had already taken place to gain access to
the wall vein.

overburden

excavation

estimated

an

The total cost of earth movement corresponding to this
overburden
1 902 805.52
(316 600 200 pesetas). This expenditure is recorded in
the company's accounts as ‘operational costs'.

excavation

EUR

is

The report confirmed by independent experts includes
other expenditure incurred by planning changes, such
as:

(a) restoration costs (higher than allowed for) of 24.87
ha, valued at EUR 547 066.46 (91 024 200 pesetas);
this cost corresponds to the value of the guarantees
signed with the government of the Principality of
Asturias; the costs are recorded under the heading
‘production costs';

(b) purchase of additional land for mine waste tips, to
the value EUR 372 176.75 (61 925 000 pesetas),
recorded as fixed assets of the company;

(c) creation of a mine waste tip located on the east side
and communication tracks with the west side and its
later restoration to accommodate the overburden
excavation in the northern zone of the trough, to
value of EUR 1 227 156.65 (204 181 686
the
pesetas);

L 119/32

EN

Official Journal of the European Union

23.4.2004

The experts consider that those costs could have
been attributable in whole or
to the
reduction of activity, and that no data are available
to carry out any evaluation of them;

in part

and, in particular, to aid for coal mining agreed upon
before that date. Consequently, the Commission was not
authorised to initiate and decide the said proceedings.

(41)

772 763.27

(128 576 989

Of this total of EUR 1 227 156.65, an amount of
EUR
pesetas) was
attributed to losses of fixed assets in the financial
year 2002, and an amount of EUR 249 662.02
(41 540 265 pesetas) to amortisation in the years
the balance of EUR
1999, 2000 and 2001;
to be
204 731.36 (34 064 432 pesetas)
written off from the fixed assets;

still

is

(39)

(40)

(d) the report by independent experts verifies that in
the
financial year 2002 an amount of EUR
1 693 504.15 (281 775 381 pesetas) was allowed as
the total amount of the guarantees demanded by the
Principality of Asturias, of which EUR 547 066.40
correspond to the restoration of land following the
reduction of activity mentioned earlier.

The Commission notes that the experts state in various
parts of their report that they were not able physically
to visit the workings referred to as being inactive or
used for the creation of mine waste tips in the open-cast
top excavation zones. The data and reports submitted
by the company which the experts were able to check
during visits to the mining operations and offices of
González y Díez S.A., carry more weight
than the
others for the purposes of the Commission's analysis. In
many cases the experts could do no more than confirm
the information submitted by the company.

that

the EC Treaty, nor

From a legal point of view, in its communication dated
26 May 2003 the company González y Díez S.A.
considers
the Commission does not have the
competence to give a ruling. Neither the ECSC Treaty,
nor
the Nice Protocol on the
financial consequences of the expiry of the ECSC Treaty
and the Coal and Steel Research Fund confer such
competence upon it. The Commission does not indicate
what legal instrument allows it to initiate and determine
proceedings on coal aid agreed upon before the expiry
of the ECSC Treaty, which occurred on 23 July 2002.
The EC Treaty does not empower the Commission to
examine aid for coal mining granted by the Member
States earlier than 24 July 2002. The general principles
of non-retroactivity of
and legitimate
expectations go against the application of legal rules to
situations that precede their entry into force. No text
establishes the possibility of the retroactive application
of the EC Treaty to situations earlier than 24 July 2002

rules

legal

5

1,

by

the

and

procedure

of Articles

Commission

In the opinion of the company González y Díez S.A.,
chosen
the
is
the purpose intended, namely the
inappropriate for
of Decision
2
repeal
2002/827/ECSC and replacement of the latter by a new
final decision. The principle of
legality would require
the Commission to have immediately and officially
repealed Articles 1, 2 and 5 of the said Decision. The
legitimate expectations would have no
principle of
relevance, since it would not suit the interested party to
maintain them because their repeal would benefit that
party. Thus,
the
appropriate course for the Commission since Regulation
(EC) No 659/1999 does not allow the Commission to
repeal
formal
said Decision as part of
investigation procedure established in Article 4(4) of the
said Regulation. It would only be possible to initiate the
formal investigation procedure once Articles 1, 2 and 5
of Decision 2002/827/ECSC had been annuled by the
Court of First Instance or, as required by the principle of
legality, once they had been officially repealed by the
Commission.

this procedure would not be

the

the

(42)

The company González y Díez S.A. also communicated
the costs deriving from the reduction of its activities, on
the basis of the report endorsed by independent experts
dated 25 April 2003 and of the reports by the auditors
Salas & Maraver dated January 2001 and 28 May 2001,
which had been transmitted in the framework of the
proceedings that led to Decision No 2002/827/ECSC.

(43)

In the opinion of the company González y Díez S.A.
the reduction of supplies during the period 1998 to
2002 would have been 125 426.58 t, more than the
expected 120 000 t, changing from 286 139.46 t in
1998 to 160 712.88 t in 2002.

(44) González y Díez S.A. considers it necessary to bear in
mind that Decision 2002/827/ECSC ‘is based on data
supplied in the context of the previous proceedings of
formal aid investigation' and, as already mentioned,
those data have been superseded in light of the present
the La Prohida
state of complete abandonment of
subsector. The letter also says that González y Díez S.A.
has totally abandoned the western zone of the open-cast
deposit of Buseiro.

(45) González y Díez S.A. adds comments and clarification
on the report by the independent experts, among which
the following can be emphasised:

23.4.2004

EN

Official Journal of the European Union

L 119/33

(a) González y Díez S.A. criticises the fact

that

excavation
In the

the
the 1 005 080 m3 of
Commission considers that
been
have
might
overburden
overestimated.
company's opinion this
overburden excavation could in reality be 6 687 064
m3. However, the independent experts had stated
that they were unable to quantify the overburden
excavation of 1 005 080 m3 but that, on the basis
of
can be
considered reasonable. In the opinion of González y
‘the company could not amortise the
Díez S.A.,
costs deriving from the excess volume of dead rock
and soil moved' when the independent experts
stated that
the expenditure was attributable to
‘operating costs' and not to investment.

information from the

company,

it

(b) González y Díez S.A. refers to the cancellation of
the contract with Transportes Peral, when in the
letter of 8 November 1999 from Mina la Camocha
(the owner of González y Díez S.A.), sent by Spain
on 2 December 1999, it is stated that there were no
installation closures and that González y Díez S.A.
had to invest 232 589 000 pesetas to operate with
its own resources instead of contracting.

of

the

land

about

acquisition

from González y Díez S.A. gives
The document
information
for
61 925 000 pesetas, the creation of a mine waste tip on
the east side whose residual value on 31 December
1998 was 34 064 432 pesetas, access tracks to the tip,
whose residual value on the same data was 170 117 254
pesetas, and the restoration of open-cast workings, of
which 91 024 200 pesetas correspond to the restoration
of the western mine waste tip. González y Díez S.A.
indicates that the said tip is used to store the surplus
excavation residue from the western deposit of Buseiro
and not only the overburden excavation from the
northern zone, which justifies those expenses as a
consequence of the operational planning change whose
result was that the work carried out to store a larger
volume of
is now no longer
necessary. The latter justifies the purpose of the mine
waste tip activity and its restoration as a consequence of
the abandonment of operations on the west side of
Buseiro.

excavation residue

The document from González y Díez S.A. justifies the
expenditure at the Buseiro workings on the basis of
indent (e) residual costs deriving from legal obligations
land restoration, this being a legal
in the context of
intrinsic
indent
obligation,
depreciations,
to Decision No
3632/93/ECSC.

the Annex

exceptional

and

(k)

of

(46)

(47)

indent (f) for ventilation
Decision No 3632/93/ECSC:
shafts, recovery of a crossing and future costs, also
partly attributable to indents (l) and (g); indent (k) for
the abandonment of the 1 030 m at level 3 and the
residual value of
the La
Prohida subsector; indents (f) and (g) for the restoration
work at La Prohida.

the remaining galleries of

(49)

The document from González y Díez S.A. also includes
information on the repayable loan of 313 500 000
pesetas intended for investment projects and granted
between 1990 and 1993 in the context of the Strategic
Plan for Competitive Action (hereinafter ‘SPCA'). The
document
context
that
non-refundable aid was granted to the company for
investment, to the value of 209 million pesetas. The
document states that 233 492 186 pesetas were paid in
the years 1999–2000 to repay the loan and interest
accrued.

also states

in the

same

energy

production of

resource mining

The document
from González y Díez S.A. gives a
detailed description of the Directive from the Ministry
of Industry and Energy dated 30 May 1985, regulating
the granting of subsidies and aid in connection with the
and the
programme of
objectives of the scheme, which are mainly to promote
the
economic
conditions, to increase productivity, or to restrict the
production costs, of coal treatment installations and of
geological
and mining prospecting. The document
reports on the Agreement signed on 30 December 1999
and the Annexes signed subsequently with the Ministry
of Industry and Energy. The objective of the agreement
was:

viable

under

coal

(i)

to establish a new system of operation by soutirage
after prior improvement of the mining operation;

(ii) to increase annual production to 240 000 tonnes of

marketable coal;

(iii) to improve output per worker, and safety; and

(iv) to reduce operating costs.

The total budget amounted to 1 160 million pesetas.

(48) As regards costs for the abandonment of the La Prohida
subsector of the Sorriba Group, the information in the
document from González y Díez S.A. coincides with
that in the report by independent experts and is justified
on the basis of the following indents of the Annex to

The Agreement signed between González y Díez S.A.
and the Ministry of Industry and Energy provided for
the granting of the following subsidies for the period
1990 to 1993:

L 119/34

EN

Official Journal of the European Union

23.4.2004

(i)

for research and technical development activities: 23
million pesetas, non-refundable
the
investment costs);

(20 % of

(ii) for operating and ore treatment activities: 209
million pesetas, non-refundable
the
investment costs) and 313.5 million pesetas (30 % of
the investment costs), as a refundable subsidy.

(30 % of

been sent to it at its request by the Government of the
Principality of Asturias, in which it is stated inter alia
that since 2001 no coal has been extracted from the
Prohida subsector and that since 1 January 2002 the
said mine group has remained inactive and abandoned.
The letter defines the Prohida subsector as that part of
the mine located between level 1, 277 a.s.l., and the
surface, taking level 2 at a height of 330 a.s.l., level 3 at
385 a.s.l., and level 4 at 454 a.s.l.

González y Díez S.A. claims that these last two items of
subsidy totalling 209 000 000 and 313 500 000 pesetas
respectively were intended for carrying out investments
in installations and activities designed to increase
mining output: an output that had to be reduced from
1998 onwards at the Buseiro deposit and from 2000
onwards at the Sorriba deposit (La Prohida subsector).
González y Díez S.A. claims,
that despite
undertaking to cut production capacity in 1998 and
2000 at Buseiro and La Prohida,
it was in parallel
continuing
Spanish Administration
the
to repay
amounts of a subsidy initially intended to increase
production capacity.

in short,

The said letter from the Government of the Principality
of Asturias also indicates that it can be inferred from
from 302 423
the Work Plans that production fell
tonnes in 1997 to 160 686 tonnes in 2002.

In a letter dated 30 June 2003, the Commission invited
Spain to comment on the representations made by the
interested parties (González y Díez S.A.). Spain did not
submit any comments.

(50)

document

from González

The
accompanied by 20 annexes
agreements
constitutes more
submitted before.

is
S.A.
to reports,
and evidence of payments, which all
information than that

complete

y Díez

relating

6. EVALUATION OF THE AID, AND CONCLUSIONS

(52) Having regard to all the information available, including
the new data, the Commission has analysed the aid in
detail.

5. REPRESENTATIONS BY SPAIN

(51) With a letter dated 29 April 2003, Spain sent

the
Commission a copy of the agreements signed between
the then Ministry of Industry and González y Díez S.A.
within the framework of the SPCA between 1990 and
1993, and the refundable and non-refundable subsidies
granted in that context.

(53)

With the same letter Spain sent a copy of the report
prepared by the Government of
the Principality of
Asturias, which is the Spanish authority responsible for
mining operations. In its report it says that the precise
terms and conditions of the activity reduction presented
by González y Díez S.A.
are not known. The
Government of the Principality of Asturias states that
since 1998 all work in the Buseiro sector has taken
place at more than 545 m above sea level (a.s.l.).

the
The company González y Díez S.A. also sent
Commission a letter dated 14 April 2003, which had

6.1. Legal framework and competence of the
Commission

in

laws
particular

adopted for
Decision

its
The ECSC Treaty and the
No
implementation,
the
3632/93/ECSC, expired on 23 July 2002. Until
ECSC Treaty's expiry State aid to the coal industry was
examined in relation to the rules established by Decision
and
3632/93/ECSC.
2001/162/ECSC,
sector
companies in Spain for 1998 and 2000, were adopted
in that context.

98/637/ECSC
coal

Decisions
authorising

aid

to

(54)

The present Decision relates to events that took place
before 24 July 2002, concerning aid subject to the ECSC
Treaty system and in an area to which the system of the
EC Treaty now applies. Thus, this Decision straddles two
successive systems.

23.4.2004

EN

Official Journal of the European Union

L 119/35

(55)

(56)

(57)

the Commission considers
The legal approach that
applicable in this matter was explained in detail in its
Communication concerning certain aspects of
the
resulting from the
treatment of competition cases
expiry of the ECSC Treaty (11)
(2002/C 152/03). The
to that Communication and in
Commission refers
particular to paragraphs 22 to 26 and 45 to 47 for the
definition of the applicable legal framework.

Decision No 3632/93/ECSC and Council Regulation
(EC) No 1407/2002 of 23 July 2002 on State aid for
coal mining (12), have virtually the same basic content.

The basic principle is that from 24 July 2002 onwards,
sectors covered until that date by the ECSC Treaty and
by the rules of procedure and law deriving therefrom,
become subject to the rules of the EC Treaty and the
rules of procedure and law deriving from the latter.
From that date the Commission has competence in
industry pursuant to
relation to State aid to the coal
Article 88(2) of
the Commission
If
the EC Treaty.
observes that illegal aid has been granted by a Member
State or from the resources of a state and that this is
incompatible with the Common Market, it decides that
the State in question must cease the said aid. The
Commission also has the duty to monitor effectively the
compliance with its decisions. For
reason the
Commission must continue monitoring, both before and
after the expiry of the ECSC Treaty, the implementation
by Member States of Decisions 98/637/ECSC and
to Decision No
2001/162/ECSC adopted pursuant
3632/93/ECSC, and has
the
to adopt
necessary measures in the event of incorrect use of the
aid.

the power

that

Communication 2002/C 152/03 is based on the
principle that the EC Treaty and the ECSC Treaty are
two elements of the same legal system. The EC Treaty is
of general application while the ECSC Treaty had a
sectoral scope and was therefore an exception from the
former. In effect, the relationship between these Treaties
is governed by the provisions of Article 305(1) of the
EC Treaty, which states that the provisions of the EC
Treaty do not affect those of the Treaty Establishing the
European Coal and Steel Community,
in particular as
regards the rights and obligations of the Member States,
the powers of the said Community's institutions and the
rules laid down in the said Treaty for the functioning of
the common market in coal and steel. Consequently, the
general Treaty is applicable in all cases where the
sectoral Treaty does not apply. Thus, contrary to what is
claimed by the company González y Díez S.A.,
the
expiry of
in a legal
the ECSC Treaty cannot result
vacuum since that Treaty is enshrined in a legal system
which automatically fills the vacuum produced by the
disappearance of one of its elements. In addition it must
be stressed that in this case the basic rules applicable by
in other words
virtue of the ECSC and EC systems,

(58)

(59)

the

suggests

company

to what

in its
Contrary
representations,
the ‘Nice Protocol on the financial
consequences of the expiry of the ECSC Treaty and on
the research fund for coal and steel' does not resolve the
issue of the legal
framework after the expiry of the
ECSC Treaty in a general way, but rather, provides
clarification of a very specific issue (the future use of
certain ECSC funds), which bears no relationship to the
issues with which the present Decision deals.

it were correct

if
competence

The Commission also points out that the ‘legal vacuum'
theory advanced by the company González y Díez S.A.
would lead to results not only erroneous from a legal
the
standpoint but also contrary to the interests of
the
that
In effect,
company itself.
Commission lacked the
its
to repeal
Decision 2002/827/ECSC after the expiry of the ECSC
Treaty, it would follow according to the same logic that
to annul a ECSC
neither was the Court competent
the said Treaty. The
Decision after
inevitable
that Decision
2002/827/ECSC continued to be fully valid and that its
could not be modified. The
legal
simply
Commission considers
unsustainable from a legal and logical standpoint.

consequence would

the expiry of

consequences

view is

that

this

be

than

repealed

initiating

(60) On the other hand, the company complains that Articles
1, 2 and 5 of Decision 2002/827/ECSC were not
immediately
the
rather
procedure for their repeal. It must be stressed in this
connection that a final decision on the appropriateness
of revoking those provisions could only be adopted after
the
examining the representations made by Spain,
applicant party and any other interested party.
is
obvious that the company González y Díez S.A. would
have preferred immediate revocation without prior
resumption of the procedure, but such a decision could
have prejudiced the rights of other interested parties, for
example possible competitors. The withdrawal of a
negative decision is a favourable act for the beneficiary
of the aid, but it may be prejudicial to the interests of
its competitors. For the Commission, this means that
such a withdrawal cannot be decided without
first
offering possible interested parties the opportunity to
make their representations.

It

(11) OJ C 152, 26.6.2002, p. 5.

(12) OJ L 205, 2.8.2002, p. 1.

L 119/36

EN

Official Journal of the European Union

23.4.2004

6.2. Rules of procedure applicable

(61)

The present Decision is being adopted after the expiry
of
the
the ESCS Treaty on 23 July 2002. As
Commission explained in detail in points 26 and 45 of
its Communication 2002/C152/03, this implies that the
procedural rules applicable from 23 July 2002 are those
deriving from the EC Treaty: Article 88 of that Treaty,
Regulation (EC) No 659/1999 and the procedural
provisions of Regulation (EC) No 1407/2002. As
Communication
explained
in
2002/C152/03,
the rules
applicable are those which were in force at the time of
taking the procedural step in question. Consequently,
the procedural rules do not have retroactive effect and
the rules applicable are those which were in force at the
time of the procedure. In other words, from 24 July
2002 the Commission will
apply exclusively the
procedural rules of Regulation (EC) No 659/1999 in any
pending case.

the basic principle is that

point

26

of

(62)

there made within the
The present Decision is
framework defined by Article 88(2) of the EC Treaty
and by Regulation (EC) 659/1999.
In particular, as
regards the incorrect use of the aid corresponding to the
years 1998 and 2000, the procedure applicable is that
provided for in Article 16 of the Regulation. Article 10
et. seq. in particular are applicable in respect of the aid
for 2001.

6.3. Funding rules applicable

(63) As regards the funding rules applicable:

(a) After

the

the possible

ECSC Treaty,
of
continue monitoring

the
expiry
the
Commission will
the
implementation by Member States of the decisions
authorising State aid adopted pursuant to Decision
No 3632/93/ECSC, as explained in point 45 of
In the event of
Communication 2002/C152/03.
the case will be dealt with in
non-compliance,
accordance with the procedure
laid down in
Regulation (EC) No 659/1999. Consequently, as
the aid
regards
corresponding to the years 1998 and 2000,
the
Commission will check whether
the conditions
established in its Decisions 98/637/ECSC and
2001/162/ECSC
Those
Decisions were adopted in 1998 and 2000 on the
basis of the ECSC regulations applicable at the time,
and they are decisions which continue to be firm
and binding. Consequently, in connection with the
use of
the aid, compliance with the conditions
established in the two ECSC Decisions in question
must be checked in relation thereto.

incorrect use of

respected.

been

have

In any event, the Commission points out that the
conditions contained in the said Decisions refer to

that

follow from Decision No
the requirements
3632/93/ECSC and that those requirements are also
contained in Regulation (EC) No 1407/2002,
in
force since 23 July 2002.

The cost categories that can be covered by the aid
to which Article 5 refers are defined in the Annex
to Decision No 3632/93/ECSC.
the
cost categories to which the Annex refers, which
can correspond to ‘technical costs of closure', are as
follows:

In particular,

(i)

residual
administrative provisions
Annex);

liabilities deriving from fiscal,

(indent

legal or
the

(e) of

(ii) additional underground safety work resulting
from restructuring (indent (f) of the Annex);

(iii) mining damage provided that it has been caused
by pits previously in service (indent (g) of the
Annex);

(iv) residual costs resulting from contributions to
bodies responsible for water supplies and for the
the
removal of waste water
Annex);

(indent

(h) of

(v) other

residual

from water
supplies and the removal of waste water (indent
(i) of the Annex);

resulting

costs

(vi) exceptional

intrinsic depreciation provided that
it results from the restructuring of the industry
(without
taking account of any revaluation
which has occurred since 1 January 1986 and
which exceeds the rate of inflation (indent k) of
the Annex).

in

of

point

(b) As regards the aid for 2001, which was effectively
paid before being authorised,
the Commission
examined its compatibility in principle in relation to
Article 7 of Regulation (EC) No 1407/2002, as
Communication
47
explained
2002/C 152/03. When it rules after 23 July 2002
on State aid granted up to that date without its
prior approval,
the Commission will apply the
specific provisions of Regulation (EC) No 659/1999.
The Commission points out that as regards the facts
to which the present Decision relates, the content of
Article 7 of Regulation (EC) No 1407/2002 is
virtually equivalent to that of Article 5 of Decision
the financial
No 3632/93/ECSC. The result of
analysis should therefore be similar, although it is

23.4.2004

EN

Official Journal of the European Union

L 119/37

the latter Decision which is being applied. In the
event of a possible divergence,
the Commission
would likewise take into account the principle of
legal security to determine the rule applicable.

— other

costs

exceptional

from the
progressive closures related to the restructuring of
the coal industry (indents (e), (f), (h) and (i) of the
Annex).

resulting

6.4. Evaluation

(69)

In its Decisions 98/637/ECSC and 2001/162/ECSC the
Commission requested that Spain grant individual aid to
the companies in accordance with the criteria laid down
in Decision No 3632/93/ECSC.

(64)

There is not the least doubt about the aid character of
all these measures. For the aid granted in 1998 and
its character as aid is not in dispute and it is
2000,
merely necessary to check whether the use made of it
does or does not comply with the authorising Decisions.
In any case it is clear that all these measures satisfy the
requirements stipulated in Article 87(1) of the Treaty
(and more particularly those stipulated in indent c) of
Article 4 of
they are
subsidies which selectively favour certain companies in a
particular sector; consequently, they affect competition
and trade between the Member States and the funds are
the
clearly
examine,
Commission must
their
compatibility
Decisions
the
98/637/ECSC and 2001/162/ECSC and with the Treaty.

from the public purse. Accordingly,

in their
authorising

the ECSC Treaty).

In effect,

case,

with

(65) On 31 March 1998 and 5 October 1999 Spain notified
to the Commission aid to cover ‘technical costs of
closure'
to
Article 5 of Decision No 3632/93/ECSC.

the years 1998 and 2000, pursuant

for

(66)

(67)

In its notification of the aid to cover exceptional costs
for the years 1998 and 2000, Spain presented a global
figure for all privately owned coal companies. Spain's
justifiication for this global notification was that it did
not know at the time of the notification which specific
companies would agree to plans for closure or activity
reduction during the course of the year.

In its Decisions 98/637/ECSC and 2001/162 ECSC the
Commission authorised global aid to cover the technical
costs of
the Spanish privately owned
companies for the sum of 10 325 millions pesetas for
1998 and 9 959 millions pesetas (EUR 59 854 795,48)
for 2000.

closure of

(68)

The aid authorised by the Commission in its Decisions
98/637/ECSC and 2001/162/ECSC is intended to cover
the specific cost categories set out in the Annex to
Decision No 3632/93/ECSC, namely:

— the loss in value of fixed assets of companies that
have to carry out total or partial closures (indent (k)
of the Annex);

In Article 2 of
Commission stipulated that:

its Decision 98/637/ECSC the

‘In accordance with Article 86 of the ECSC Treaty, Spain
shall adopt all appropriate measures, whether general or
particular, to ensure fulfilment of the obligations arising
under
the aid
authorised is used for the purposes intended and that
any unspent, overestimated or incorrectly used aid for
any item covered by this Decision is repaid to it.'

shall ensure that

this Decision.

It

The wording of Article 2 of Decision 2001/162/ECSC is
practically identical.

In the justification for its two Decisions the Commission
says that:

‘Spain must ensure that the aid granted to undertakings
to cover exceptional costs is in line with the categories
of costs
specified in the Annex to Decision No
3632/93/ECSC.'

In addition, in its Decision 2001/162/ECSC relating to
the year 2000 the Commission adds in its justification:

‘Spain must ensure that, within the framework of the
provisions of Article 86 of the Treaty, the aid is limited
to that which is strictly necessary in the light of the
social and regional considerations which characterise the
decline of the Community's coal industry. The aid may
not give any economic advantage, whether directly or
indirectly, to productions for which no aid is authorised
or to other activities distinct from coal production. In
particular, Spain must ensure that aid granted to
undertakings
of Decision No
3632/93/ECSC to cover the technical cost of closure is
not used by the undertakings as aid for current
production (Articles 3 and 4 of the Decision) and that
the closure of capacity for which the aid is intended is
in optimum
definitive and that
conditions of safety and environmental protection.'

is carried out

under Article

it

5

L 119/38

EN

Official Journal of the European Union

23.4.2004

criteria

(70) Aid to cover exceptional costs must in any case meet
of Decision No
the
3632/93/ECSC, namely that
it can be regarded as
compatible with the common market if its amount does
not exceed those costs.

of Article

5(1)

(71)

(72)

the

analysed

The Commission initially
incorrect
application of the aid for the years 1998 and 2000 and
the compatibility of the aid for 2001 on the basis of the
data submitted by the Member State and by the
beneficiary company. The conclusions of that analysis
were the logical outcome of the information sent to the
Commission. The Commission referred to its Decision
No 2002/827/ECSC for a detailed explanation of the
said analysis.

the

to examine

In response to the Commission's decision to reopen the
the aid granted to
formal procedure
company made new
González y Díez S.A.,
representations which included detailed and well
documented reports endorsed by new independent
experts. The Commission points out that since its first
request on 25 October 1999, the company had been
given numerous opportunities to provide information
about the fate of the aid under examination and that the
reports
company are now much more
complete.

from the

(73) Nevertheless,

that

the new
the Commission notes
independent experts were unable to verify many of the
data concerning activity reduction, since at the time of
their report (2003) the works had been abandoned or
completed. Those verifications could have been carried
out when the Commission asked for the reports on
previous occasions, since the works were accessible at
that time. For that reason, the Commission must draw
its conclusions on the basis of the information sent by
Spain on 29 and 30 April 2003, and in previous
reports when necessary to obtain a complete picture of
the facts.

(74)

The company González y Díez S.A. makes a new claim
in its document with comments on the decision to
reopen the proceedings, arguing that instead of having
abandoned 170 000 tonnes in the La Prohida subsector
and 585 000 t in the Buseiro sector, what it did was to
abandon the La Prohida subsector completely and to
abandon totally the western zone of
the open-cast
deposit of Buseiro.

The Commission considers
Prohida
subsector, as defined in the letter of 14 April 2003 from
the Government of the Principality of Asturias, can be

that

the

La

joint

framework

for the purposes of
regarded as ‘a production unit'
Regulation (EC) No 1407/2002 and Commission
Decision 2002/871/EC of 17 October 2002, establishing
a
of
information needed for
the application of Council
Regulation (EC) No 1407/2002 on State aid to the coal
industry (13). However,
the western zone of Buseiro
does not satisfy that definition if account is taken of the
operation project of 1994.

communication

the

for

The Commission can, however, accept that the aid to
cover exceptional restructuring costs in the La Prohida
subsector relate to the total closure of that production
unit. The aid analysis carried out by the Commission is
in line with Article 7 and the Annex to Regulation (EC)
No 1407/2002, which only makes provision for aid for
the total closure of production units.

for

In the case of the partial closure of the Buseiro sector
the Commission can continue carrying out the analysis
in accordance with the criteria of Article 5 and the
Annex to Decision No 3632/93/ECSC, given that an
total closure
analysis based on the requirement
would be unfavourable to the company and,
in the
particular circumstances of
this case, would conflict
with the principle of legality. In effect, given that the
final decision on this case should have been adopted
before the entry into force of Regulation (EC) No
1407/2002 and that
the delay cannot be attributed
solely to the company, it would not be compatible with
the principle of legality to make the company suffer the
negative
from a
tightening of the basic rules during the said period.

that would result

consequences

6.4.1. Aid that can be authorised (partially)

(75) Now that the plans of the workings abandoned at level
3 of the La Prohida subsector have been analysed, the
Commission considers that the value at cost price of the
1 030 metres of galleries needed for the working of the
abandoned 170 000 tonnes is excessive. A considerable
proportion of
those galleries had already been used.
Moreover, the construction of those galleries was put
down to operation costs and about 40 % of that cost
was covered by State aid. The justification put forward
by
the
implementation cost is equivalent to an accumulation of
favourable
incompatible
position for the company, the Commission can regard
as justified 60 % of
the cost of creating the 1 030
metres of galleries, namely EUR 443 114.21 (73 728 000

100 % coverage

aids. Adopting

the most

company

the

for

of

(13) OJ L 300, 5.11.2002, p. 42.

23.4.2004

EN

Official Journal of the European Union

L 119/39

pesetas). Part of the aid received during 2000 can be
justified on the basis of indents (g) and (h) of the Annex
to Regulation (EC) No 1407/2002. The remaining
amount of EUR 295 409.47 (49 152 000 pesetas) is not
compatible.

justified the EUR
The Commission can regard as
610 716.04 (101 614 599 pesetas) corresponding to the
residual value of 1 496 metres of galleries abandoned at
level 3 of La Prohida, which feature in the record of
fixed assets on 31 December 2000. The Commission
analysed the company's management report for the year
2001 and verified that this amount features as a loss of
fixed assets. The aid is justified on the basis of indent k)
of the Annex to Regulation (EC) No 1407/2002. The
be
(101 614 599
EUR
authorised for the year 2001, the year in which they are
written off in the company's accounts.

610 716.04

pesetas)

can

(65 857 001

justified the EUR
The Commission can regard as
and
EUR
the
395 808.55
pesetas)
that correspond,
1 046 170.83 (174 201 288 pesetas)
respectively, to the residual value on 31 December 2000
of the 1 093 metres of galleries abandoned on levels 2
and 4 and the 490 m abandoned on level 1 of other
assets abandoned in the La Prohida subsector. The
Commission bases its view on the total closure of that
production
the
company's management report for 2001 and verified
that this quantity is recorded as a loss of fixed assets.
The aid is justified on the basis of indent (k) of the
Annex to Regulation (EC) No 1407/2002 and the
Commission proposes
the
financial year 2001.

The Commission

to authorise

analysed

against

unit.

it

and

geological

irregularities

the Buseiro deposit

(80) After analysing the ‘Project for the open-cast working of
the Buseiro zone' dated July 1994, submitted as an
Annex in the document from Uría & Menéndez, the
shows
Commission noted that
numerous
therefore
uncertainties in its future operation. The descriptions
given by the independent mining experts of Layer I are
partial, given that they correspond only to the southern
part of the deposit. The Project mentions the complexity
of the western side. As regards the real presence of
Layer I, it indicates that this level cannot be worked in
some places because of the high ash content,
justifies
the choice of variant 5 for the determination of reserve
volumes and suggests an alternative to arrive at the
figure of 450 000 tonnes. The Commission does not
agree with the comments by González y Díez S.A.
concerning the effect on the additional costs incurred in
the Buseiro Group by the technical modifications of that
project, and on the contrary accepts the view of the
independent experts that the additional costs resulting
from the reduction of production are those due to the
overburden excavation of 1 005 080 m3 in the northern
zone. The Commission also considers that
the said
movement of 1 005 080 m3 of excavation residues was
overestimated, since although the independent experts
were unable to evaluate that figure, the experts who
‘the
proposed the
January 2001 cite
experience obtained by the partial working of
the
bottom of the syncline in the northern zone (the only
one in which the bottom was reached) where the coal
ash in that vein (the wall vein) ranges between 40 % and
studies,
the
60 %'. After
the
analysing
Commission concludes
expenditure
that
attributable to activity reduction in the Buseiro sector is
that corresponding to the overburden excavation in the
northern zone, with its
associated
restoration costs in the external mine waste tip. The
Commission also considers that the change of plan was
due to geological factors already taken into account in
the original project and that the extra costs due to those
factors should in no case be covered by
geological
additional
received
aid,
operational aid every year.

technical
the only

company has

corresponding

report of

since

the

(76)

(77)

(78)

The Commission can authorise the EUR 134 654.36
(22 404 600 pesetas) that the company considers to be
outstanding as the value of the difference between the
metres of galleries abandoned in the La Prohida
subsector and those which had a residual value in the
register of fixed assets on 31 December 2000. On the
the
basis
company,
Commission verified that
corresponding assets
feature in the register of fixed assets of the company on
31 December 2000. The Commission proposes
to
authorise that aid against the year 2001.

information

from the

the

of

(79)

the

aid of EUR
The Commission can authorise
61 609.60 (10 250 975 pesetas) for the restoration of
the outside of
the La Prohida sector. That aid is
compatible with indents (h) and (c) of the Annex of
Regulation (EC) No 1407/2002, and can be authorised
against the year 2001.

(81)

counted as

The movement of earth involved in the overburden
excavation of 1 005 080 m3 was
an
operational cost by the company, as is normal practice.
Given that the company received aid to cover open-cast
operational losses, which was of the order of 27 % of
the production cost,
the Commission, adopting the
hypothesis most favourable to the company, can only
authorise 73 % of the EUR 1 902 805.52 (316 600 200
pesetas). The Commission considers that it can authorise
this aid against the year 1998. The aid is compatible
the Annex of Regulation (EC) No
with indent (i) of
1407/2002. Consequently,
the Commission considers
that the sum of EUR 513 757.49 (85 482 054 pesetas) is
not compatible.

L 119/40

EN

Official Journal of the European Union

23.4.2004

(82)

(83)

(84)

the formation of

The Commission considers that the attribution of the
total residual value of
the western
mine waste tip and the access tracks as a loss due to the
reduction of activity is excessive, since the possibility of
abandoning the western side had been foreseen in the
to quote form the 1994 plan,
July 1994 plan and,
‘raising the bottom of the cutoff automatically makes
available more than sufficient capacity for
internal
dumping,
since the total volume of dead rock is
decreased and it can be disposed of in a large cavity at
in the base at a height of
the north end present
approximately 530 a.s.l.'. However, given that
the
western mine waste tip was abandoned, and in view of
the difficulty of evaluating the real cost that should be
attributed to the reduction of activity at Buseiro, the
Commission adopts the position most favourable for the
company and therefore proposes to authorise the aid of
EUR 204 731.36 (34 064 432 pesetas) and the aid of
EUR 1 022 423.30 (170 117 254 pesetas) corresponding
respectively, to the residual value of the creation of the
mine waste tip and the access tracks on 31 December
1998. The Commission can authorise that aid against
the years 1998 and 2000 on the basis of indent (i) of
the Annex to Regulation (EC) No 1407/2002.

6.4.2. Aid that cannot be authorised

the

The aid amounting to EUR 602 146.29 (100 188 13
pesetas) was intended for the creation of shafts and
other work to provide ventilation for
‘Tres
Hermanas' sector of the Sorriba group. That expenditure
corresponds to investments in mining infrastructure
necessary for the working of the ‘Tres Hermanas' group.
Expenditure on new investments cannot be regarded as
liabilities inherited from the past within the meaning of
Regulation (EC) No 1407/2002, nor in accordance with
Decision No 3632/93/ECSC. On the other hand, as can
be deduced from its notification of 19 December 2002
concerning the 2003 to 2007 plan for the restructuring
of the coal industry, Spain does not intend to grant aid
for investments of the type envisaged in Article 5(2) of
Regulation (EC) 1407/2002. Such investment aid would
moreover be incompatible with the aid to cover
operating losses of the Sorriba group which Spain is
granting to González y Díez S.A. Neither does the aid
correspond to indent (l) of Section I of the Annex to
Decision No 3632/93/ECSC. That category of aid is not
to Regulation (EC) No
included
1407/2002 in accordance with which the Commission
is currently analysing aids, but neither would it be
compatible with indent (l) of Section I of the Annex to
Decision No 3632/93/ECSC given that the investment
referred to relates to working the reserves in the ‘Tres
Hermanas' subsector.

in the Annex

(85)

(86)

(87)

The Commission cannot authorise the aid of EUR
601 012.10 (100 000 000 pesetas) to make provision for
the coverage of future costs incurred by surface damage
due to the closure of the La Prohida subsector. The
this provision and the
Commission observes
in the
corresponding sum were not

included at all

that

the aid planned by Spain for 2001.
notification of
Moreover, this sum exceeds the amount notified (and
paid in advance) by Spain for that year. Consequently,
the Commission cannot declare it compatible in this
Decision.

the

the

final part of

restoration of

land restoration is

the Principality of Asturias

company does not provide

The costs amounting to EUR 547 066.46 (91 024 200
pesetas) corresponding to the agreements signed with
the Government of
to
guarantee
land after open-cast
the production costs of coal
operation, are part of
extracted in the western zone of the Buseiro group. In
effect,
the
production cycle of an open-cast mine and the cost of
that restoration is a component of the total cost of the
coal extracted. In the case of the Buseiro gangue heap,
the
justification that
abandonment of the mine waste tip involves additional
restoration costs and, on the contrary, it justifies those
expenses on the basis of the legal obligation established
by Royal Decree 1116/1984 of 9 May and the Order of
the Ministry of Industry and Energy dated 13 June 1984
developing it, which establishes that after operations,
the areas affected must be restored. The company has
received State aid to cover all operating losses, including
the restoration of the open-cast mine of Buseiro. The
new aid would be on top of that received to cover
operating losses and the Commission cannot authorise
the aid amounting to EUR 547 066.46 (91 024 200
pesetas).

The land acquired by the company for open-cast mining
is registered among the company's fixed assets, but is
not an asset that depreciates. The Commission cannot
aid amounting to EUR 372 176.75
authorise
(61 925 000 pesetas) corresponding to the purchase
price of the land, since this is not considered to be a
lost asset and the aid is not covered by any of the
points of the Annex of Regulation (EC) No 1407/2002.

the

in the context of

The refundable and non-refundable subsidies received by
González y Díez S.A.
the SPCA
Agreement signed on 30 December 1989 with the
Ministry of
Industry and Energy, were intended to
finance projects whose purpose is to promote coal
production under economically viable conditions and to
increase productivity. The loans were received during
the period 1990 to 1993 when the projects were
implemented. According to what can be deduced from
Annex III of the agreement signed, the refundable loan
of 313 500 000 pesetas was mainly intended for the
establishment of
the new system of operation by
‘soutirage', which was and continues to be used by the
report by independent
company according to the
experts, Annex III of the SPCA Agreement also refers to

23.4.2004

EN

Official Journal of the European Union

L 119/41

to

the

that

sent

Commission.

Industry and Energy (MINER)

‘clear indications of exceptional open-cast operations,
which would enhance the estimated profitability of the
whole' and of an annual production target of 260 000
marketable tonnes, which was exceeded. The payment
of 233 492 186 pesetas (EUR 1 403 316)
in the years
1999 and 2000, however, corresponds to the repayment
of
loans received between 1990 and 1993, and is
unrelated to the company's activity reduction plan
notified to the Commission for the period 1998 to
2001. The Commission also points out
the
payments made by the company in 1999 and 2000 are
much higher than envisaged in the initial plan owing to
the payment delays, as emerges from the letter of the
Ministry of
sent by
registered post on 22 December 1997 and other
documentation
The
Commission also points out that the refundable loan of
313 500 000
a
non-refundable subsidy of 209 million pesetas and by
another non-refundable subsidy of 23 million pesetas
for research and technological development activities. In
addition to these capital subsidies, the company received
each year aid to cover approximately 40 % of
the
underground operation production costs and 27 % of
the open-cast operation production costs. As explained
earlier, the Commission proposes to authorise the entire
residual value on 31 December 2000 of the fixed assets
in the La Prohida subsector and in a substantial part of
the Buseiro sector. The aid amounting to 233 492 186
pesetas (181 292 186 pesetas in 1998 and 52 200 000
pesetas in 2000) corresponding to the repayment of
SPCA subsidies, which could include investments in
mine works in the La Prohida subsector, would result in
an accumulation of aid incompatible with the common
market. Accordingly, the Commission cannot authorise
that aid.

pesetas was

accompanied

by

Díez S.A. to cover exceptional costs of restructuring
pursuant to Article 5 of Decision No 3632/93/ECSC,
totalling 651 908 560 pesetas in 1998 and 463 592 384
pesetas in 2000, is recorded in the company's accounts
thus generating exceptional gross
as operating costs,
in 1998 and 2000, of 998 185 023
operating profits,
pesetas and 217 383 752 pesetas respectively. The net
operating profits after
taxes, without aid to cover
exceptional costs, were 277 177 852 pesetas in 1998
and probably negative in 2000.

(91)

(92)

the aid to cover exceptional

The Commission notes that as a consequence of the use
of
restructuring costs
(Article 5 of Decision No 3632/93/ECSC) as operating
the
aid (Article 3 of Decision No 3632/93/ECSC),
company's own funds
increased from 787 009 112
pesetas on the date of acquisition by Mina la Camocha
S.A. to 1 624 447 451 pesetas on 31 December 2000,
and that
the
exceptional profits in 1998 and 2000.

this increase occurred as a result of

the aid granted to
The Commission considers that
for the years 1998 and 2000
González y Díez S.A.
pursuant
to Article 5 of Decision 3632/93/ECSC
exceeds the costs incurred by the restructuring carried
out in 1998 and 2000 in accordance with Article 3 of
that Decision, and was consequently not used for the
purposes for which it had been authorised by the
Commission.

(88)

Even if it considers that the reduction of coal deliveries
is not the criterion for the granting of aid intended to
cover exceptional restructuring costs, the Commission
finds that it cannot agree with the view expressed by
González y Díez S.A. on the reductions made, since the
deliveries
by
approximately 15 000 tonnes than those the company
was providing in previous years.

higher

1998

1997

and

are

in

(89)

The Annex shows the aid authorised and the aid not
authorised.

6.4.3. Conclusions on the incorrect use of the aid granted by

Spain 1998 and 2000

(94)

(90) After

analysing all

the
Commission notes that the aid received by González y

information available,

the

(93) Neither during the proceedings

that gave
in the present

rise
to
Decision 2002/827/ECSC nor
formal
infringement proceedings has the company González y
Díez S.A. justified the origin of the exceptional profits
between 1998 and 2001, which brought about
the
its own funds. The company
equivalent
acknowledges,
to its owner Mina la
letter
Camocha dated 11 November 1999, sent by Spain on 2
December 1999, that ‘in no case was the aid intended to
compensate costs of any nature and that the profits of
the financial year 1998 include the aid of 651 908 560
pesetas granted by the MINER'.

increase of
in its

The Commission considers that the company González
y Díez S.A. made incorrect use of the aid granted by
Spain in 1998 pursuant to 98/637/ECSC, and in 2000
pursuant
totalling
521 075 440 pesetas (EUR 3 131 726.47), broken down
as follows:

2001/241/ECSC,

to Decision

L 119/42

EN

Official Journal of the European Union

23.4.2004

(a) Galleries created and not used:

49 152 000 pesetas

(EUR 295 409.47)

(b) Restoration of open-cast areas:

91 024 200 pesetas

(EUR 547 066.46)

(c) Value of open-cast land:

61 925 000 pesetas

(EUR 372 176.75)

(d) Overburden excavation in the

85 482 054 pesetas

(EUR 513 757.49)

northern zone:

(e) Repayment of SPCA subsidies:

233 492 186 pesetas

(EUR 1 403 316.30)

6.4.4. Conclusions on the aid to cover exceptional costs in 2001

(95)

(96)

(97)

In a letter dated 19 March 2001 Spain notified the Commission about aid to cover ‘technical costs'
in respect of closure, which it intended to grant to various companies during the financial year
2001, among which González y Díez S.A. was included with an amount of 393 971 600 pesetas
(EUR 2 367 817).

In its Decision 2002/241/ECSC the Commission did not rule on the above aid and announced that
it would not do so until it had analysed the information provided by Spain in response to the
Commission's questions on aid for the years 1998 and 2000.

In its letter of 13 May 2002, Spain informed the Commission that it had granted the company
González y Díez S.A. aid totalling 383 322 896 pesetas (EUR 2 303 817) to cover the technical
costs of reducing annual capacity by 34 000 tonnes.

(98)

The granting of that aid by Spain was not in line with Article 9(4) of Decision No 3632/93/ECSC,
which establishes that:

‘Member States may not put into effect planned aid until it has been approved by the Commission
on the basis, in particular, of the general criteria and objectives laid down in Article 2 and of the
specific criteria established by Articles 3 to 7.'

(99)

Consequently, the aid of 383 322 896 pesetas (EUR 2 303 817) granted by Spain to González y
Díez S.A. for the year 2001 is illegal.

(100) The Commission carried out a first evaluation of the compatibility of the aid of 383 322 896
pesetas (EUR 2 303 817), based on elements derived from the reports by González y Díez S.A. and
in particular those of 13 February 2002 and 26 February 2002, sent by Spain respectively on 28
February and 24 April 2002.

(101) On 22 August 2002 the Commission received the management report of the company González y
Díez S.A. for 2001, in response to its request for the annual reports of all the companies in order
to check compliance with the provisions of Article 2(3) of Decision No 3632/93/ECSC.

(102) The management report of González y Díez S.A.

for 2001 records 383 322 896 pesetas as
‘extraordinary income' and justifies ‘extraordinary expenditure' amounting to 389 268 288 pesetas
in the following way: 319 268 288 pesetas as the residual value of the La Prohida subsector
(Sorriba sector) and 70 000 000 pesetas as provision for expenses related to the abandonment of
mining works to be effected in 2002. That aid is therefore correctly entered in the accounts of the
company González y Díez S.A. Nevertheless, its compatibility with Article 7 and the Annex of
Regulation (EC) No 1407/2002 must be examined.

23.4.2004

EN

Official Journal of the European Union

L 119/43

(103)

In response to the initiation of the present formal
received new information from Spain about the aid.

infringement proceedings, the Commission

(104) As a result of the analysis carried out by the Commission, aid totalling 374 328 463 pesetas (EUR
2 249 759.37) can be considered compatible with Article 7 of Council Regulation (EC) No
1407/2002, broken down as follows:

(a) Residual value of galleries

used at level 3:

101 614 599 pesetas

(EUR 610 716.04)

(b)Residual value of the rest of the

abandoned galleries on levels 2 and 4:

65 857 001 pesetas

(EUR 395 808.55)

(c) Residual value of level 1 galleries and
other assets abandoned in the La
Prohida subsector:

174 201 288 pesetas

(EUR 1 046 970.83)

(d)Lost value of abandoned assets not

22 404 600 pesetas

(EUR 134 654.36)

counted in 2001:

(e) Exterior restorations:

10 250 975 pesetas

(EUR 61 609.60)

(105) The aid totalling EUR 602 146.29 (100 188 713 pesetas)

for mine
investments and infrastructures needed for the operations at the ‘Tres Hermanas' group of the
Sorriba group is incompatible with Article 7 of Regulation (EC) No 1407/2002, since the new
investments cannot be regarded as liabilities inherited from the past. Moreover, investment aid of
that nature would be incompatible with the aid provided to cover operating losses at the Sorriba
group, which Spain on the other hand granted to González y Díez S.A.

to González y Díez S.A.

(106) As regards the inclusion in the company's balance for 2001 of a provision amounting to EUR
601 012.10 (100 000 000 pesetas) to cover exceptional restructuring costs to be incurred in the
future by the closure of the La Prohida subsector, the partial closure of the Buseiro sector, or both,
the Commission points out that this provision and the corresponding amount had not been
included at all in the notification of aid envisaged by Spain for 2001. Moreover, this sum exceeds
the sum notified (and paid in advance) by Spain for the said year. Consequently, the Commission
cannot declare it compatible in the present Decision.

(107) The Commission considers that the aid of 8 994 433 pesetas (EUR 54 057.63) granted by Spain to
González y Díez S.A. for 2001 exceeds the closure costs, and is consequently incompatible with the
common market.

6.4.5 Recovery

(108) Pursuant to Article 16 and Article 14(2) of Regulation (EC) No 695/1999, the aid corresponding to
1998 and 2000 that has been deemed incorrectly used in relation to Decisions 98/637/ECSC and
2001/162/ECSC must be repaid by the beneficiary company. It should be pointed out that these
authorising Decisions (98/637/ECSC and 2001/162/ECSC)
the aid
authorisation was explicitly conditional upon its actual correspondence with certain categories of
closure costs. In effect, these Decisions specified that the aid to cover exceptional costs had to
satisfy the requirements of Article 5(1) of Decision No 3632/93/ECSC, which implied that its
amount cannot exceed those costs. Given that the authorisation was subject to conditions and that
the conditions imposed were not satisfied in the case of
the aid examined in the present
proceedings, any possible invocation of the principle of legitimate expectations is automatically
excluded.

indicated very clearly that

L 119/44

EN

Official Journal of the European Union

23.4.2004

(109) Similarly, pursuant to Article 14(2) of Regulation (EC)
No 659/1999, the aid for 2001 already paid and that
has been declared incompatible in this Decision must
also be repaid by the beneficiary company. Given that
this aid was provided illegally before having been
authorised by the Commission, any possible invocation
of
is
automatically excluded.

expectations

legitimate

principle

the

of

6.4.6. Amendment of Decision 2002/827/ECSC

(110) Decision 2002/827/ECSC can consequently be amended,

by repealing some of its Articles,

HAS ADOPTED THIS DECISION:

Article 1

The State aid totalling EUR 3 131 726.47 granted by Spain to
the company González y Díez S.A.
to cover exceptional
restructuring costs for the years 1998 and 2000 pursuant to
Article 5 of Decision 3632/93/ECSC constitutes an incorrect
application of Decisions 98/637/ECSC and 2001/162/ECSC and
is incompatible with the common market.

Article 2

The State
aid totalling EUR 2 249 759.37 (374 328 463
pesetas) granted by Spain to the company González y Díez
S.A.to cover, for the year 2001, exceptional costs of closure
incurred during the period 1998 to 2001 is compatible with
Article 7 of Regulation (EC) 1407/2002.

The aid mentioned in indents (a) and (b) of the first paragraph
cannot therefore be granted.

Article 4

1. Spain shall adopt all the necessary measures to recover

from the company González y Díez S.A.:

(a)

the aid mentioned in Article 1;

(b) an amount of EUR 54 057.63 (8 994 433 pesetas), paid
illegally before authorisation by the Commission for
the
an
2001,
unauthorised excess over the aid authorised pursuant
to Article 2 and, where appropriate, any other amount
paid illegally under the same circumstances.

constituting

financial

year

and

2. The recoveries mentioned in indents

that

they

(a) and (b) of
paragraph 1 shall be effected without delay and in
accordance with the procedures laid down by national law,
provided
effective
allow
implementation of this Decision. The aid to be recovered
shall be liable to interest charges payable from the date on
which it was placed at the disposal of the recipient to the
date of recovery thereof. The interest shall be calculated on
the basis of the reference rate used to calculate the grant
equivalent in the context of regional aid.

immediate,

Article 5

Spain shall inform the Commission, within two months from
the notification of
the measures it has
this Decision, of
adopted to comply with this Decision.

Article 3

Article 6

the
The following State aid that Spain intends
company González y Díez S.A. is incompatible with Article 7
of Regulation (EC) 1407/2002:

to grant

(a) an amount of EUR 602 146.29 (100 188 713 pesetas) for
in mining
the ‘Tres Hermanas'

intended for
the working of

the year 2001,
infrastructure for
group of the Sorriba group;

investments

Articles 1, 2 and 5 of Decision 2002/827/ECSC are repealed.

Article 7

This Decision is addressed to the Kingdom of Spain.

Done at Brussels, 5 November 2003.

(b) an amount of EUR 601 012.10 (100 000 000 pesetas), for
the year 2001,
intended to constitute a provision for
covering future costs incurred by the closure of the ‘La
Prohida' subsector and the partial closure of the Buseiro
sector, which took place during the period 1998 to 2001.

For the Commission

Loyola de PALACIO

Vice-President

23.4.2004

EN

Official Journal of the European Union

L 119/45

X
E
N
N
A

s
a
t
P

d
e
i
f
i
t
s
u
n
U

j

s
o
r
u
e

d
e
i
f
i
t
s
u
n
U

j

s
a
t
P

d
e
i
f
i
t
s
u
J

s
o
r
u
e

d
e
i
f
i
t
s
u
J

r
a
e
Y

l
a
v
o
r
p
p
A

s
a
t
P

s
o
r
u
e

r
e
t
s
i
g
e
r

t
n
u
o
c
c
A

,

0
0
0
0
0
2
5
1
9
4

,

7
4
9
0
4
5
9
2

,

0
0
0
0
0
8
2
7
3
7

,

1
2
4
1
1
3
4
4

0
0
0
2

%
0
6

,

0
0
0
0
0
0
8
8
2
2
1

,

8
6
3
2
5
8
3
7

s
t
s
o
C

d
e
s
u

t
o
n

d
n
a

e
d
a
m

s
e
i
r
e
l
l
a
G

)

m
0
3
0
1

(

0
0
0

,

0
0
0

,

0
0
0

,

0
0
0

,

0
0
0

,

0
0
0

,

0
0
0

,

0
0
0

,

,

0
0
9
9
5
4
1
6
1
0
1

,

4
0
6
1
7
0
1
6

1
0
0
2

%
0
0
1

,

0
0
9
9
5
4
1
6
1
0
1

,

4
0
6
1
7
0
1
6

.
s
s
a

d
e
x
i
F

6
9
4
1

(

)
r
e
h
t
o
(

3

l
e
v
e
l

t
a

s
e
i
r
e
l
l
a
G

)

m

,

0
0
1
0
0
7
5
8
5
6

,

5
5
8
0
8
5
9
3

1
0
0
2

,

0
0
8
8
2
1
0
2
4
7
1

,

3
8
0
7
9
6
4
0
1

1
0
0
2

%
0
0
1

%
0
0
1

,

0
0
1
0
0
7
5
8
5
6

,

5
5
8
0
8
5
9
3

.
s
s
a

d
e
x
i
F

4

d
n
a

2

s
l
e
v
e
l

t
a

s
e
i
r
e
l
l
a
G

,

0
0
8
8
2
1
0
2
4
7
1

,

3
8
0
7
9
6
4
0
1

.
s
s
a

d
e
x
i
F

r
e
h
t
o

d
n
a

1

l
e
v
e
l

t
a

s
e
i
r
e
l
l
a
G

s
e
i
t
i
v
i
t
c
a

,

0
0
0
0
6
4
0
4
2
2

,

6
3
4
5
6
4
3
1

1
0
0
2

%
0
0
1

,

0
0
0
0
6
4
0
4
2
2

,

6
3
4
5
6
4
3
1

.
s
s
a

d
e
x
i
F

f
f
o

n
e
t
t
i
r

w

t
o
n

l
l
i
t
s

s
e
i
r
e
l
l
a
G

.
s
s
a

d
e
x
i
f

m
o
r
f

,

0
0
3
1
7
8
8
1
0
0
1

,

9
2
6
4
1
2
0
6

0
0
0

,

0
0
0

,

,

0
0
0
0
0
0
0
0
0
0
1

,

0
1
2
1
0
1
0
6

0
0
0

,

0
0
0

,

0
0
0

,

0
0
0

,

,

0
0
5
7
9
0
5
2
0
1

,

0
6
9
0
6
1
6

1
0
0
2

1
0
0
2

1
0
0
2

,

0
0
4
5
0
2
8
4
5
8

,

9
4
7
5
7
3
1
5

,

0
0
6
4
1
8
1
1
1
3
2

,

3
0
8
4
0
9
8
3
1

8
9
9
1

0
0
0

,

0
0
0

,

0
0
0

,

0
0
0

,

,

0
0
2
3
4
4
6
0
4
3

,

6
3
1
3
7
4
0
2

8
9
9
1

,

0
0
4
5
2
7
1
1
0
7
1

,

0
3
5
2
4
2
2
0
1

8
9
9
1

,

0
0
0
0
2
4
2
0
1
9

,

6
4
6
6
0
7
4
5

,

0
0
0
0
0
5
2
9
1
6

,

5
7
6
7
1
2
7
3

0
0
0

,

0
0
0

,

,

0
0
6
8
1
2
9
4
3
3
2

,

0
3
6
1
3
3
0
4
1

0
0
0

,

0
0
0

,

0
0
0

,

0
0
0

,

8
9
9
1

8
9
9
1

0
0
0
2
/
8
9
9
1

%
0

%
0

%
0
0
1

%
3
7

%
0
0
1

%
0
0
1

%
0

%
0

%
0

,

0
0
3
1
7
8
8
1
0
0
1

,

9
2
6
4
1
2
0
6

.

m

t
s
e
v
n
I

s
e
i
r
e
l
l
a
g

d
n
a

s
t
f
a
h
s

n
o
i
t
a
l
i
t
n
e
V

,

0
0
5
7
9
0
5
2
0
1

,

0
6
9
0
6
1
6

s
t
s
o
C

n
o
i
t
a
r
o
t
s
e
r

r
o

i
r
e
t
x
E

,

0
0
0
0
0
0
0
0
0
0
1

,

0
1
2
1
0
1
0
6

n
o
i
s
i
v
o
r
P

e
g
a
m
a
d

r
o
f

n
o
i
s
i
v
o
r
P

)
t
s
a
c
-
n
e
p
o
(

o
r
i
e
s
u
B

,

0
0
0
0
2
0
0
6
6
1
3

,

2
5
5
0
8
2
0
9
1

s
t
s
o
C

h
t
r
o
n

,

n
o
i
t
a
v
a
c
x
e

n
e
d
r
u
b
r
e
v
O

,

0
0
2
3
4
4
6
0
4
3

,

6
3
1
3
7
4
0
2

.
s
s
a

d
e
x
i
F

t
s
e
w

,

p
i
t

e
t
s
a
w
e
n
M

i

,

0
0
4
5
2
7
1
1
0
7
1

,

0
3
5
2
4
2
2
0
1

.
s
s
a

d
e
x
i
F

s
k
c
a
r
t

s
s
e
c
c
A

,

0
0
0
0
2
4
2
0
1
9

,

6
4
6
6
0
7
4
5

s
t
s
o
C

a
e
r
a

t
s
a
c
-
n
e
p
o

f
o

n
o
i
t
a
r
o
t
s
e
R

,

0
0
0
0
0
5
2
9
1
6

,

5
7
6
7
1
2
7
3

d
n
a
L

,

0
0
6
8
1
2
9
4
3
3
2

,

0
3
6
1
3
3
0
4
1

s
n
a
o

l

A
C
P
S

f
o

t
n
e
m
y
a
p
e
R

,

0
0
5
5
1
4
6
2
1
2
7

,

0
9
4
8
8
4
3
3
4

,

0
0
5
9
2
6
5
3
3
8
8

,

0
7
8
7
0
9
0
3
5

l
a
t
o
T

)
d
n
u
o
r
g
r
e
d
n
u
(

i

a
d
h
o
r
P

a
L