Jego Ekscelencja Pan Radosław Sikorski
Minister Spraw Zagranicznych Al. Szucha 23
PL-00 - 580 Warszawa
Commission européenne, B-1049 Bruxelles – Europese Commissie, B-1049 Brussel – Belgium Telephone: 00 32 (0) 2 299.11.11
4
EUROPEAN COMMISSION
Brussels, 02.12.2009
C (2009) 9353 final
In the published version of this decision, some information has been omitted, pursuant to articles 24 and 25 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty, concerning non-disclosure of information covered by professional secrecy. The omissions are shown thus […].
PUBLIC VERSION WORKING LANGUAGE This document is made available for
information purposes only.
Subject: State Aid N 462/09 – Poland – Aid for the construction and operation of the A2 Motorway, Świecko – Nowy Tomyśl section
Sir,
1. PROCEDURE
(1) On 27 July 2009 the Polish authorities notified the above-mentioned measure. (2) By letter dated 29 September 2009, the Commission requested clarifications on
certain aspects of the measure. By letter dated 8 October 2009, the Polish authorities provided the Commission with the requested information.
2. DESCRIPTION OF THE MEASURE
2.1. Description of the project and the beneficiary
(3) The notified measure concerns public-private partnership arrangements (hereinafter "PPP") with Autostrada Wielkopolska II S.A. (hereinafter "AWSA II") for the construction and management of 105.9 km (Świecko-Nowy Tomyśl section) of the A 2 Motorway in Western Poland.
(4) AWSA II was established on 26 February 2009. This company is wholly owned by: Kulczyk Holding S.A., Meridiam A2 West S a.r.l. (a subsidiary company of Meridiam Infrastructure Fund), Strabag AG and KWM
Investments GmbH. These companies are also shareholders in Autostrada Wielkopolska S.A. (hereinafter "AWSA"), which constructed and manages the Nowy Tomyśl-Konin section of the A2 Motorway.
(5) This part of the A2 Motorway lies on the TEN-T motorway axis Berlin-Warsaw. 1 When completed this section will connect the existing 252 km of the A2 Motorway with the German A12 Motorway at Świecko/Frankfurt am Oder. In the long term, the A2 Motorway will run to the Polish/Belarusian border. It will serve international, inter city and local traffic demand and connect cities such as Warsaw, Łódź and Poznań with the EU motorway network.
(6) The maximum capacity of the dual carriageway can be expected to be approximately 41,000 Annual Average Daily Traffic. This level will, according to forecasts provided by the Polish authorities 2, probably be reached in some parts of this section by 2038 when a third lane will be added.
(7) The motorway will direct traffic from the existing National Road No 2. Traffic levels on this section of the National Road range from 16,000 to 17,000 in Annual Average Daily Traffic, with a very high share of heavy vehicle traffic (almost a half of all vehicles in a border section of this road).
(8) This decision does not prejudice any future assessment of the project with respect to the EU environmental legislation: Nevertheless, the Commission notes the following: The motorway is located in an environmentally sensitive area, it crosses three and runs in proximity of four Natura 2000 sites, as well as important animal migration corridors. The construction will have negative impacts on Natura 2000 sites and the animal migration corridors and therefore requires extensive mitigation and compensation measures. Some of these measures have been already communicated by the Polish authorities to the Commission. Polish authorities have committed themselves 3 to communicate further mitigation and compensatory measures to the Commission by the end of June 2010, following additional monitoring and studies of the impacts that have not been thoroughly assessed, including the creation of appropriate animal passages on the National Road No 2 parallel to the A2 Motorway. Therefore on the basis of the additional monitoring and studies of impacts, the Polish authorities shall submit to the Commission further satisfactory proposals for mitigation and compensatory measures by 30 June 2010. Environmental measures will increase investment costs by approx. 10%.
2.2. Context of the measure
2.2.1. Sequence of main administrative events
(9) On 4 September 1995, a tender concerning the construction, management and right-of-use of the A2 Motorway (Świecko-Poznań, Poznań-Konin, Konin-Stryków sections) was published.
1 See annex 1. 2 See annex 2.
(10) On 1 February 1997, offers by AWSA for all three sections were chosen. On 10 March 1997 the Ministry of Transport and Maritime Policy granted three concessions for each of the three sections in the form of administrative decisions (hereinafter "the concession decisions").
(11) On 12 September 1997, the Polish authorities signed with AWSA the concession agreement for the three sections of the motorway.
(12) On 5 May 1999, the Minister of Transport and Maritime Policy abrogated the concession for the section Konin-Stryków.
(13) On 11 January 2000, the Ministry of Transport and Maritime Policy amended the two other concessions (prolongation of the concessions from 30 to 40 years, exclusion of the Poznań bypass from the concessions, the concessions now cover the Świecko-Nowy Tomyśl and Nowy Tomyśl-Konin sections). (14) On 30 August 2008, the agreement defining the financial conditions for the
construction and operation of the Świecko-Nowy Tomyśl section was signed. (hereinafter "the financial agreement").
2.2.2. Public policy on construction and operation of toll motorways in Poland
(15) Initially, the concession-holders were bearing most of the responsibility and risk (especially traffic and revenue risks) for the construction and operation of motorways. This system was characterised by the almost exclusive reliance on tolls with a minimal financial involvement of the State.
(16) As from 1 January 1995 until 17 November 2000, the State stepped in but limited its support to preparatory works (such as site acquisition or planning) and an eventual guarantee on loans up to 50% of the investment value. It also increased the duration of the concessions. This was the case when the agreement for the Nowy Tomyśl - Konin section of the A 2 Motorway was concluded.
(17) Later on the Polish authorities realised that the existing system could not ensure the smooth construction of the motorways. Therefore, they decided to involve more State resources in the PPP agreements for the construction, maintenance and exploitation/operation of the motorways. The securities for loans were increased and the exclusive toll-based system was changed into an availability payment system with guaranteed revenue to the undertaking. (18) These changes followed the experience acquired in the other Central European
countries such as Hungary where the risk for the construction and operation of motorways constructed under PPP system was assumed by the concessionaires with exclusive reliance on toll. This system was found not appropriate to ensure a stable financing of motorway projects. An enlarged role for the State in PPP road projects became necessary in many cases and in some cases led to renegotiations of financial terms of contracts and even to re-nationalisation of defaulting PPP agreements4.
4 See especially: Resource Book on PPP Case Studies, European Commission Directorate-General
Regional Policy, June 2004;Brenck A., Beckers T., Heindrich M., von Hirschhusen Ch., Public-Private Partnerships in New EU Member Countries of Central and Eastern Europe: An Economic Analysis with Case Studies from the Highway Sector, reprint from EIB Papers, Vol. 10, No. 2 (2005), 82-112.
2.3. Details of the concession agreement and the financial agreement
(19) The concession agreement of 1997 and the financial agreement of 2008 implement the concession decision from 1997 as amended.
2.3.1. Financial provisions
(20) The construction costs, the operational costs and the maintenance costs will be covered by AWSA II mainly from commercial loans but also from its own resources. After the completion of the construction AWSA II will receive an availability payment from the National Road Fund 5.
(21) The availability payment is a fixed amount which covers costs of repayment of loans, rehabilitation of pavement, maintenance and […]٭ return on equity 6. The amount of this payment is approx. […]٭7. This payment is due in instalments after the finalization of the construction of the motorway. This revenue does not depend on traffic levels, but can be adjusted to the inflation rate, the wages increases and higher maintenance costs due to higher traffic. (22) In case the resources of the National Road Fund are insufficient, the Treasury
is committed to pay to AWSA II the amount of liabilities to lender banks. The State Treasury's commitment of payments is transferable to these creditors. Therefore, the banks can claim directly from the State Treasury the amounts due to be repaid by AWSA II.
2.3.2. Balance of risks
(23) The construction risk is mainly borne by AWSA II. As the construction price is fixed in advance, the concessionaire takes the risks of unpredictable events such as construction cost overrun, design deficiency, necessary additional construction works, ground conditions, availability of labour and materials, construction time delay, etc. In the latter case, the Polish authorities can terminate the contract agreement and AWSA II would lose 30% of equity. (24) The traffic risk is mainly borne by the State. Tolls are set by the State and the
revenue from tolls is transferred to the State.
3. ASSESSMENT OF THE NOTIFIED MEASURE
5 The National Road Fund was created to finance motorway investments. The resources of this Fund are
mainly a fuel tax which is collected by custom offices and transferred directly to this Fund and tolls collected by concessionaires of motorways. The General Directorate of National Road and Motorways (hereinafter "GDDKiA") decides on payments for the concessionaires of motorways.
6 According to the Polish authorities the standard rate in Polish PPP motorway projects for return on
equity is approx. […]٭.
3.1. Existence of aid
(25) By virtue of Article 107(1) of the FEU Treaty 8 "any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the internal market."
(26) For a financial support to be State aid within the meaning of Article 107(1) of the FEU Treaty, it must fulfil cumulatively all following conditions:
– favour certain undertakings or the production of certain goods, – be granted by the State or through State resources,
– distort or threaten to distort competition, – affect trade between Member States.
(27) Selective economic advantage: Although AWSA (a mother company of AWSA II) has been chosen and granted the concession following a public tender procedure, it must be acknowledged that in the present case the process leading to the financial agreement has lasted 11 years as regards the Świecko - Nowy Tomyśl section, including through very complex negotiated procedures and led to a prolongation of the duration of the concession and changes of the construction project. Moreover, State resources in the final arrangement are higher than what initially foreseen in the launch of the tender.
(28) Therefore, the Commission cannot exclude that the remuneration of the concessionaire in the form of the availability payment involves an advantage to AWSA II.
(29) Moreover, the Commission also notes that the State funding enables AWSA II to carry out an economic activity on conditions which would otherwise not have been available on the market. This equally constitutes an advantage to AWSA II.
(30) As regards the transfer of AWSA II claims against the State to the lender banks, the Commission notes that this transfer does not result in additional financial liabilities for the State, but merely constitutes a change of creditor. The Commission considers that this is a normal commercial practice for the purpose of securing loans which does not involve an advantage either to banks or to AWSA II.
(31) State resources and imputability: The compensation payments are provided by the National Road Fund. The resources of this Fund are State resources. The National Road Fund is managed and controlled by GDDKiA which is a part of the central administration. Thus, any decision of payment is imputable to the State.
8 With effect from 1 December 2009, Articles 87 and 88 of the EC Treaty have become Articles 107 and
108, respectively, of the TFEU. The two sets of provisions are, in substance, identical. For the purposes of this Decision, references to Articles 107 and 108 of the TFEU should be understood as references to Articles 87 and 88, respectively, of the EC Treaty where appropriate.
(32) Effect on competition and trade between Member States: When aid granted by a Member State strengthens the position of an undertaking compared with other undertakings competing in intra-EU trade, the latter must be regarded as affected by that aid. For a measure to distort competition it is sufficient that the recipient of the aid competes with other undertakings on markets open to competition.
(33) The markets for construction and operation of motorways are open to EU-wide competition, and therefore the advantage to AWSA II has the potential to distort competition and affect trade between Member States.
(34) Conclusion: In view of the above, the Commission considers that the concession and financial agreements involve State aid within the meaning of Article 107(1) of the FEU Treaty.
3.2. Compatibility assessment
(35) To the extent that they constitute aid, the compatibility of the measure notified by the Polish authorities has to be assessed directly on the basis of Article 107 (3) (c) FEU Treaty, which provides that “aid to facilitate the development of certain economic activities or of certain economic areas, where such aid does not adversely affect trading conditions to an extent contrary to the common interest” can be considered compatible with the internal market.
(36) The Commission usually considers 9 that State aid for infrastructure can be authorized if the following criteria are met:
– the construction and operation of the infrastructure meets a clearly defined objective of general interest (regional development, accessibility, etc.),
– the infrastructure is necessary and proportional to the objective which has been set,
– the infrastructure has satisfactory medium-term prospects for use, in particular as regards the use of existing infrastructure,
– all potential users of the infrastructure have access to it in an equal and non-discriminatory manner,
– the development of trade is not affected to an extent contrary to the Union interest.
3.2.1. The construction and operation of the infrastructure meet a clearly defined objective of general interest
(37) The main objective of the notified measure is the development of the motorway part of the Trans-European Transport Network in Poland.
9 See especially Community guidelines on financing of airports and start-up aid to airlines departing
from regional airports, OJ C 312 of 9.12.2005, p.1 and Commission decision of 13 May 2009 in joint cases N151/2009 and N152/2009 - Poland - Aid for the construction and operation of the A1 Motorway, Gdańsk-Toruń section, OJ C 164 of 16.07.2009, p.2; Commission decision of 16 May 2006 in case N 149/2006 - Ireland - Traffic guarantee for M3 Clonee to North of Kells and N7 Limerick Southern Ring Road Phase II, OJ C 209 of 31.08.2006, p.7.
(38) The promotion of the Trans-European Transport Network is an objective of general interest of the EU. According to Article 170 of the FEU Treaty the Union shall contribute to the establishment and development of European Networks in the area of transport. One of the elements of the Trans-European Transport Network is the A2 Motorway. This highway is part of the pan-European corridor II.
(39) Nevertheless, the fulfillment of transport policy objectives should not undermine environmental protection and the Commission notes that the Polish authorities entered commitments exposed above (§ 8) in that respect.
(40) The Commission therefore concludes that the notified measure meets clearly defined objectives of general interest.
3.2.2. The infrastructure is necessary and proportional to the objective which has been set (41) The A 2 Motorway is one of the only two motorways in Poland running from
west to east. It will provide the connection between Poznań, Łódź and Warsaw. At present only approx. 252 km of the motorway have been terminated with no connection to the other motorways. The section Świecko-Nowy Tomyśl will complete a missing link with the Polish-German border and connect Western and Central Poland with the rest of the EU by a network of motorways.
(42) Moreover, the border crossing of Świecko is one of the busiest on the Western border of Poland with more than one tenth of cross border traffic passing through this village10. Most of this traffic (almost half of all vehicles are trucks) is directed to the National Road No 2 which is a single carriageway. Therefore, the road parallel to the A2 Motorway is congested and the number and the frequency of accidents on this road is double than the Polish average. Thus, this national road cannot provide sufficient alternative to the A2 Motorway.
(43) Moreover, as set out above especially in the section 2.2, the construction of the motorway without financial involvement of the State would not have been possible.
(44) It is therefore the Commission's opinion that the investment is necessary and proportional to the objectives which have been set.
3.2.3. The infrastructure has satisfactory medium-term prospects for use, in particular as regards the use of existing infrastructure 11
(45) The traffic estimates indicate that the motorway has satisfactory medium-term prospects for use. The Commission notes that the risk associated with traffic demand could be partially offset by the fact that the Polish authorities are competent for setting the tolls and can therefore adjust them according to demand.
(46) The Commission can therefore conclude that the A2 Motorway has satisfactory medium term prospects.
10 Data from year 2007; source: Crossborder Traffic In Lubuskie Region In 2007, Statistical Office in
Zielona Góra, 2008.
3.2.4. Equal and non-discriminatory access to the infrastructure for all potential users (47) AWSA II ensures equal and non-discriminatory access to the motorway for all
potential users.
3.2.5. Non-affectation of trade to an extent contrary to the Union interest
(48) The motorway will take traffic from the existing single carriageway and highly congested National Road No 2 for east/west traffic. Nevertheless, this road will not be tolled, thus AWSA II does not compete with other concessionaires for the road traffic Świecko-Nowy Tomyśl.
(49) Furthermore, the Commission notes that the parameters on which the availability payment is based, and especially the unit cost of construction per km, are coherent with those of other Polish motorways concessions; taking into account higher construction cost due to concrete pavement and extensive environmental mitigation measures 12. AWSA II will receive […] ٭ return on equity which is below the standard rate in Polish motorway projects […] ٭. (50) It results that the development of competition and trade will not be affected to
an extent contrary to the Union interest. 3.2.6. Conclusion
(51) Consequently, the Commission considers that the measure fulfils the five criteria for the assessment of aid for infrastructure and therefore the proposed measure, to the extend that they constitute aid, is compatible with Article 107(3)(c) of the FEU Treaty.
4. DECISION
The Commission has accordingly decided to consider the measure to be compatible with the FEU Treaty.
This decision is without prejudice to the Commission's assessment concerning the compatibility of the notified measures with EU internal market rules (especially regarding public procurements and concessions) and with EU environmental legislation.
If this letter contains confidential information which should not be disclosed to third parties, please inform the Commission within fifteen working days of the date of receipt. If the Commission does not receive a reasoned request by that deadline, you will be deemed to agree to the disclosure to third parties and to the publication of the full text of the letter in the authentic language on the Internet site:
http://ec.europa.eu/community_law/state_aids/state_aids_texts_pl.htm
Your request should be sent by registered letter or fax to: European Commission
Directorate-General for Energy and Transport Directorate A Building/Office DM 28 6/109 B-1049 Brussels 12 See annex 3. ٭ Confidential information.
Fax No: + 32 2 296 41 04
Yours faithfully, For the Commission
Antonio Tajani
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ANNEX 1
Road network in Poland
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ANNEX 2 Traffic estimates
year average daily traffic year average daily traffic
2011 14 076 2025 25 794 2012 14 921 2026 26 878 2013 15 649 2027 28 011 2014 16 414 2028 28 987 2015 17 220 2029 29 997 2016 18 068 2030 31 043 2017 18 961 2031 32 129 2018 19 674 2032 33 252 2019 20 415 2033 34 579 2020 21 184 2034 35 965 2021 21 986 2035 37 416 2022 22 818 2036 38 934 2023 23 766 2037 40 524 2024 24 757
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ANNEX 3
Cost per km in recent Polish motorway (expressway) projects
Section of motorway (expressway) Construction costs per km in Mio. EUR Maintenance costs per km in Mio. EUR in PPP
projects Agreement signed
A2 Świecko - Nowy Tomyśl PPP 12.4 […] ¹ 30.08.2008
A1 Grudziądz - Toruń PPP 11.75* […] ¹ 30.09.2008 A1 Stryków - Pyrzowice PPP 9.8* […] ¹ 22.01.2009 A2 Stryków - Konotopa 6.18 – 14.36* 28.09.2009 A1 Sośnica - Bełk 13.9 22.01.2007 A1 Świerklany - Gorzyczki 14.9 18.10.2007 A1 Bełk - Świerklany 20.2 07.08.2008 A1 Maciejów - Sośnica 40* 09.03.2009 A1 Piekary Śl. - Maciejów 15* 16.06.2009 A1 Pyrzowice - Piekary Śl. 29* 27.07.2009 S3 Pyrzyce - Myślibórz 6* 03.10.2007 S3 Myślibórz - Gorzów Pn. 5.3* 13.12.2007 S3 Klucz - Pyrzyce 5.6* 22.01.2008
* Exchange rate from 27.07.2009 1 EUR=4.17PLN
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Authorisation for State aid pursuant to Articles 107 and 108 of the FEU Treaty Cases where the Commission raises no objections
(Text with EEA relevance)
Date of adoption of the decision Reference
number of the aid N 462/2009 Member State Poland
Region Wielkopolska, Lubuskie
Title (and/or name of the beneficiary)
Aid for the construction and operation of A2 Motorway, Świecko – Nowy Tomyśl section
Legal basis Ustawa z dnia 27 października 1994 r. o autostradach płatnych oraz o Krajowym Funduszu Drogowym;
Ustawa z dnia 7 listopada 2008 r. o zmianie ustawy o drogach publicznych oraz niektórych innych ustaw;
Rozporządzenie Ministra Transportu i Gospodarki Morskiej z dnia 12 maja 1995 roku w sprawie szczegółowych zasad postępowania przetargowego na udzielenie koncesji na budowę i eksploatację autostrad płatnych;
Rozporządzenie Ministra Infrastruktury z dnia 29 kwietnia 2004 r. w sprawie opłat za przejazd autostradą.
Type of measure Investment aid
Objective Development of transport Form of aid Direct grant
Economic sectors Road transport Name and
address of the granting authority
Minister Infrastruktury ul. Chałubinskiego 4/6; 00-928 Warszawa
The authentic text(s) of the decision, from which all confidential information has been removed, can be found at: http://ec.europa.eu/community_law/state_aids/state_aids_texts_pl.htm