The European Commission has decided that reductions in compensation payments granted by the Port of Antwerp to two container terminal operators, were awarded on market terms. For this reason they do not involve State aid within the meaning of EU rules.
The Antwerp Port Authority is a public authority managed by the city of Antwerp. Its responsibility as an authority is to provide land to companies to operate on the basis of the concession agreements.
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In 2004, the Antwerp Port Authority agreed on concession agreements with PSA Antwerp NV and Antwerp Gateway NV, which are two container terminal operators. The agreement was about providing services to traphsipment of containers in the at the time new Deurganckdok area of the Port of Antwerp. The concession contracts were to conclude for 42 years, meaning until 2046.
The agreements between the Antwerp Port Authority and the two concessionaires of the Deurganckdok area are not of a big difference to the concession contracts awarded by the Authority to other container terminal operators and include a requirement that a minimum quantity of containers is handled in each terminal, every year.
Moving on, between 2009 and 2012, PSA Antwerp NV and Antwerp Gateway NV didn’t manage to establish the minimum tonnage that is required per year. Regularly, they would have been expected to pay compensation to the Antwerp Port Authority. Yet, not only did the Antwerp port authority not collect the compensation from the two companies as stated, but instead it reduced the minimum tonnage requirements in favour of the two companies. To this result, this action lowered the amount of compensation approximately by 80% by each of two companies.
Because of Antwerp’s Port Authority actions, a competitor filed complaints. As a result, on January 15th 2016, the Commission conducted an investigation to question whether the salary reduction made by the Antwerp Port Authority, was to agree with EU State aid rules and specifically the Commission aimed to find out if a private operator would have accepted a reduction similar to the above.
The Commission investigation came to the conclusions below:
- Because of the economic crisis, an adjustment of the minimum tonnage requirements was understood because the container volumes and traffic faced a reduction in all important European ports. That is why, the Authority of the Port of Antwerp modified the minimum tonnage requirements of other terminal operators;
- PSA Antwerp NV and Antwerp Gateway NV were both two start-up companies that faced serious challenges because of the economic crisis. So, the adjustment to their minimum tonnage requirements can be justified;
- Both companies are key customers to the Port of Antwerp. The Authority thought that demanding from the two companies to pay full amount of compensation could possibly affect negatively the economic situation of the companies and risk the relationship between the Port Authority and them;
- The decision made by the Port Authority in reducing and adjusting the tonnage requirements was in line with what a private market operator would have done.
Finally, the Commission decided that the Antwerp Port Authority acted the same way as a private market operator would have done. To this result, the Commission concluded that no State aid within the meaning of EU rules was granted to the two concessionaires.
