Firstly, on 15 January 2016, the Commission opened an in-depth investigation into alleged aid to two container-terminal operators in the Port of Antwerp. Following a complaint, the Commission investigated modifications to concession agreements concluded between, on the one hand, the authority of the Port of Antwerp and, on the other hand, PSA Antwerp N.V. and Antwerp Gateway N.V., two operators of container terminals. These concession agreements provided for a minimum amount of containers to be handled in the port every year (minimum tonnage requirements). Between 2009 and 2012, these two operators did not reach these minimum tonnage requirements and should have paid compensation to the Port Authority. However, in March 2013, the Port Authority retroactively revised the minimum tonnage requirements downward and gave up the compensation payments that were owed as set out in the agreements. The Commission doubts whether the Port Authority’s action is in line with private-operator principles and it has therefore decided to open an in-depth investigation to establish if it acted like a private investor. If not, the Commission could conclude that the two container-terminal operators have benefited from illegal State aid.
The decision to open the formal investigation procedure will be published shortly in the Official Journal of the EU and any interested third parties, including the companies affected by the investigation, will have the opportunity to send their comments to the Commission. Belgium, which has already received this decision, also has the opportunity to comment. Then, the Commission will adopt a final decision in this case.
More recently, the European Commission adopted three final decisions requiring taxation of ports in the Netherlands, Belgium and France. The Commission therefore continues its strict policy on State aid with regard to fiscal measures.
For the Netherlands, following various complaints, the Commission launched an in-depth investigation in July 2014 into Dutch provisions that exempted certain public companies, including port operators, from corporate tax. In June 2015, the Netherlands adopted a law making public undertakings subject to corporate tax as of 1 January 2016. However, the law maintained a tax exemption for six Dutch public seaports (namely Groningen Seaports, Havenbedrijf Amsterdam, Havenbedrijf Rotterdam, Havenschap Moerdijk, Port of Den Helder and Zeeland Seaports). The Commission considered that the Dutch legislation addressed its state aid concerns, except for the six exempted Dutch seaports. Therefore, on 21 January 2016, the Commission adopted a decision that obliges the Netherlands to amend this exemption from 1 January 2017.
Insofar as it was an exemption that was implemented more than 10 years ago, the public undertakings concerned should not have to repay undue granted aid under this type of exemption.
In Belgium, many maritime and river ports and in particular the Ports of Antwerp, Bruges, Brussels, Charleroi, Ghent, Liège, Namur and Ostend are not subject to the general corporate income tax regime of their legal entity. They are therefore taxed according to another regime, with a different base and tax rates. It appears that the tax rate applied to this sector is less than the rate for other Belgian companies. Most French ports, including 11 major ports such as those of Bordeaux, Dunkerque, La Rochelle, Le Havre, Marseille, Nantes, Rouen, etc., the Autonomous Port of Paris and the ports operated by the ICC, are fully exempt from corporate income tax.
After investigation, the Commission concluded that the existing regimes in France and Belgium provide state aid which cannot be authorized on the basis of the Treaty on the Functioning of the EU.
Therefore, on 21 January 2016, it sent a request to these two States to adapt future tax legislation so that these port companies are subject to corporate taxation rules in the same way as other companies.
France and Belgium had two months to respond to this request. If these Member States decide not to comply with the Commission’s request, this could lead to in-depth investigations and binding final decisions.
Annabelle Lepièce (annabelle.lepiece@cms-db.com)
