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1. The Commission's objections to the reform proposals as set out in the decision to open the formal State aid investigation procedure fall under six headings, all based on specificity:
2. Measures 24-25 of part B of Annex II to the decision to open the formal investigation (186) Lastly, the Commission notes that neither Poland nor Gdynia Shipyard Group has contested its conclusion that measures 24-25 of part B of Annex II to the decision to open the formal investigation constituted new aid and thus fall under the remit of the Commission under Article 88 of the EC Treaty.
3. The Commission will now consider whether, once a court has ordered a publicly owned establishment to pay a sum of money, and the order is no longer open to appeal, it is legally possible for the establishment to be allowed to fall into dormancy, with the result that the claim will never be honoured, as the French authorities contend.
4. BE’s position in the market for retail supply to large I & C Consumers did not provide a hedge against the fall in wholesale prices. This market has been fully open to competition since 1994. It is competitive with price sensitive consumers. Prices in this market have also fallen.
5. The intention behind this was to allow the company to maintain the value of its capital, in order to ensure that its losses did not make its share capital and reserves fall below the legal limit, thereby preventing insolvency proceedings (procedura concorsuale), and to ensure that the possibility of privatisation remained open and credible.
6. In addition, since the aid does not fall within a scheme as approved by the Commission, it had to be individually notified and the Commission had the duty to open the procedure under Article 88(2) of the Treaty in case of doubts on its compatibility with the common market.
7. The write-off did not require a prior notification to the Commission as the sale of the 43 % of ELVO was carried out by means of an open bidding procedure, and since ELVO was a military producer it did not fall into the category of ‘automobile’ producers within the meaning of state aid provisions.
8. Lastly, the Commission notes that neither Poland nor the recipient has contested its conclusion that measures 19-27 of Annex I, part B to the decision to open the formal investigation constituted new aid and thus fall under the remit of the Commission under Article 88 of the EC Treaty.
9. According to the Dutch authorities, the measure at hand does not fall within the scope of Article 87(1) EC, but should rather be seen as a typical task of a public authority, providing general ‘public’ infrastructure open to all parties at similar conditions.
10. Lastly, the Commission notes that neither Poland nor Gdynia Shipyard Group has contested its conclusion that measures 24-25 of part B of Annex II to the decision to open the formal investigation constituted new aid and thus fall under the remit of the Commission under Article 88 of the EC Treaty.
11. The change of ownership of the yards, from AESA or SEPI to IZAR does not mean that the recovery of the aid could fall on the previous owner of the concerned companies. The reason is that the companies were transferred to IZAR, not on market terms in open and transparent tendering procedures, but in the form of a reorganisation of companies within the same SEPI group, with the use of a symbolic price.
12. A contributing factor to the loss of profitability during the IP was the temporary loss of a major supply contract by one of the Community producers and a fall in sales at least partly caused by users depleting the stocks which they had built up in 2001 for fear of eventual shortages. There is also evidence that severe fluctuations in the price of the main raw material (APT), most of which originates in China, have affected the profitability of those producers in the Community which are dependent on purchasing this commodity on the open market.
13. if the undertaking operated in certain sectors, among which was the automotive sector [7].(28) The Greek authorities claim that the debt write-off based on Law 1892/90 was covered by this scheme. The write-off did not require a prior notification to the Commission as the sale of the 43 % of ELVO was carried out by means of an open bidding procedure, and since ELVO was a military producer it did not fall into the category of ‘automobile’ producers within the meaning of state aid provisions.