The proxy rates in the Commission Notice on Guarantees cannot be used in cases of state guarantees that cover 100% of the underlying loans.
Introduction
Last week’s article reviewed the terms of the operation of regional airports in Greece. (View it here). This week’s article continues with the theme of management of public infrastructure and examines Commission decision SA.42545 on the revitalisation of the Hamburg Congress Centre [CCH], Germany.[1] The case is interesting because it involves the use of financial instruments, equity, loans and a guarantee, for the funding of the construction of infrastructure and then its management. What is more is that the funding supports both economic and non-economic activities. And, the Commission decision makes extensive references to its own Notice on the Notion of State Aid.
The calculation of the State aid element in the public guarantee was tricky because the guarantee covered 100% of a loan. This, in turn, created ambiguity as to how to price the guarantee and derive the implicit amount of aid involved. Naturally, the amount of aid affects the assessment of the compatibility of the aid. In this situation, the Commission took into account the maximum possible amount of aid which was the principal of the loan.
Background
The congress centre was built in 1973 and required extensive renovation. Because there was interest by private investors to undertake the renovation, the city of Hamburg decided to provide support through financial instruments [FI] in the form of guarantees. The estimated maximum gross grant equivalent of the FI was EUR 169 million.
After completion of its renovation, the congress centre would be used for both non-commercial, cultural and local events and for commercial international events. According to the past usage of the centre, 35% of the visitors attended non-commercial or local events generating about 16% of the total revenue, while the remaining 65% of the visitors attended commercial events generating 84% of the total turnover. The commercial events also included cultural activities, which according to past figures, attracted 24% of visitors but generated only 6% of total revenue. The remaining 41% of visitors of commercial events accounted for 78% of total revenue.
The owner of the renovated centre was CCH Immo, which was a company wholly owned by the city of Hamburg. The operator of the centre would be selected through a negotiated two-stage procedure in the meaning of the new EU public procurement directive 2014/24. The Commission decision describes the procedure and the selection criteria [paragraphs 8-10].
- In stage I, a pool of potential bidders is defined. The maximum number of potential bidders is restricted to five.
- The potential bidders are selected in a transparent and fair manner. There are no minimum specifications imposed on potential bidders at this stage. Only objectively unsuitable potential bidders are rejected.
- In stage II, the selected bidders are requested to submit their offers taking into account the fact that the CCH will be mainly used for cultural purposes.
- The contract award criteria [both qualitative and quantitative] are published on the EU site TED.
- The tender specification includes among others i) the exclusive right of use of the CCH facility, ii) the operation of the CCH as a culture and congress centre, iii) the use of the CCH premises for congresses, cultural, local and regional events, iv) taking over the contract with the existing caterer.
- The operator rents out the CCH to different users on a non-discriminatory basis. There is no main final user of the facility.
- A set minimum concession fee has to be paid to Immo CCH.
- The winning bid is the most economically advantageous offer, in accordance with Art. 67 of the Directive 2014/24/EU.
The nominal costs for the renovation of the centre amounted to about EUR 294 million over the period of execution of the project. This was equivalent to a NPV of EUR 278 million (2016) [the discount rate was 0.98% and was calculated on the basis of the 2008 Reference Rate Communication]. The nominal costs included EUR 175 million for development and construction, EUR 63 million for technical equipment and EUR 56 million for financial costs.
The operating costs for the facility management and personal would be covered by the concession fee paid by the future operator of the centre.
The amount of EUR 294 million would be financed through the following instruments:
- equity injection by the city of Hamburg,
- a short-term loan with a duration of 4 years, and
- a long-term loan with a duration of 25 years.
The city of Hamburg would provide a guarantee of up to 100% for the 25-year loan.
The amount of State aid in the financing instruments
Germany argued that the amount of State aid involved in all financing instruments would not exceed a NPV of EUR 169 million (in 2017 prices).
The equity injection was considered to be similar to a grant and to have a gross grant equivalent of EUR 160 million.
Given that there was no market price for the guarantee, the amount of aid in the guarantee was established in a similar way as the gross grant equivalent for loans. As the Commission explained, “(16) the advantage in the State guarantee (respectively the market-conform guarantee premium) will be then calculated as the difference between the specific interest rate this company would have borne without the State guarantee (price for a non-guaranteed loan) and the interest rate obtained by means of the State guarantee after any premiums paid have been taken into account (price for the guaranteed loan incl. guarantee premium paid). As there is no market interest rate for non-guaranteed loans, Germany proposes to use the reference rate as a proxy. The reference rate of a loan is established on the basis of the Reference Rate Communication and is defined as the sum of i) the refinancing costs of the loan and ii) the appropriate risk margin reflecting the project risks of the company. The risk margin depends on the rating of the company and the collaterals provided. The higher the collateralisation of the loan granted to this specific company (i.e. the lower is the loss of the creditors in case of company´s default) and the higher the rating (i.e. the lower the probability of default), the smaller is the risk margin.” [The Commission decision at this point reproduces the table from the 2008 communication on reference rates.]
That is State aid = (reference rate + margin without guarantee) – (reference rate + margin with guarantee) – premium = (margin without guarantee – margin with guarantee) – premium.
And this is exactly, what the text of the decision goes on to explain in the next paragraph. “(17) The advantage included in the State guarantee, respectively the market-conform guarantee premium, can be then calculated as a difference between the risk margin of the non-guaranteed loan and the risk margin of the guaranteed loan minus a guarantee premium paid. If this value is positive, i.e. the guarantee premium paid is lower than the established market-conform guarantee premium, there is an advantage in the State guarantee. […] the gross grant equivalent of this guarantee will be the sum of the annual gross-grant equivalents [i.e. the advantage expressed in basis points multiplied by the outstanding loan amount per year] paid yearly on the outstanding amount of the guaranteed loan for the time of the guarantee.”
Germany proposed that “(18) the risk margin of the non-guaranteed loan was established on the basis of information provided by a bank of the most cautious offer made by several banks to CCH (upper range of the bank offers). This bank considers that the rating of Immo CCH falls into the category “Good” (BBB) and the value of the collaterals is high (high collateralisation). The minimum risk margin for the loan without the State guarantee (“non-guaranteed loan”) amounts therefore to 75 bp or 0.75% per annum. The real risk margin of the guaranteed loans was established on the basis of the indicative bank offers with 100% guarantee (the lower range of the bank offers of 0.23% p.a.). According to Germany, the advantage in the State guarantee would therefore amount to 0.52 % p.a. (0.75% – 0.23%). If Immo CCH would not pay any guarantee fees for this State guarantee to FHH, the advantage (GGE) in the long-term financing to terms to Immo CCH of this guarantee would amount to about EUR 9 million.”
Therefore, according to Germany, the GGE of the all the instruments would be EUR 169 million [EUR 160 million in the form of equity and EUR 9 million in the form of guarantee].
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Existence of State aid for the owner of the congress centre
The Commission easily concluded that the financing instruments conferred an advantage in favour of the owner of the congress centre. This was despite the fact that the centre was owned by the city of Hamburg via the CCH Immo and that the State aid was granted by the city itself.
However, part of the public funding was not considered to constitute State aid because the activities it supported were not economic in nature and also because there was no foreseeable impact on cross-border trade.
“(26) The public funding of cultural activities may be organised in a non-commercial way and thus public funding thereof does not constitute State aid. Indeed the Commission considers that public funding of a cultural or heritage conservation activity accessible to the general public free of charge fulfils a purely social and cultural purpose which is non-economic in nature. In the same vein, the fact that the visitors pay a monetary contribution that only covers a fraction of the true costs is equally unlikely to be economic in nature.”
“(27) The Commission analysed on the basis of the past activities of the CCH the nature of the cultural activities and compared the ticket price charged with the average rental prices/per visitor which are paid by the event organisers to the current CCH operator. Based on this evidence, the Commission observes that the ticket prices in the category for [cultural] events […] cover only about 10-20% of the rental price of the event organisers (costs of the event’s organisers). Therefore, the visitors of the mainly local and cultural events pay only a fraction of the real costs of the event´s organisers. The Commission concludes that as regards these activities, the CCH is not meant to be commercially exploited, and that the part of financing which can be linked to this part can in principle be excluded from the application of the State aid rules.”
This is a pretty good example of how one can determine that an activity is not economic. If it is intentionally priced at such a rate that it is certain to lead to financial loss and, I would add, the organiser obtains no compensatory income or revenue or other benefit from another source or activity, then the activity in question is carried out for non-commercial purposes.
However, the Commission had doubts as to the amount of State aid that was provided to the owner of the conference centre. As mentioned earlier, the equity injection was treated as a grant of EUR 160 million. That was easy to quantify. But the quantification of the aid in the guarantee was trickier. Although it did not disagree with the methodology, it disagreed with the numbers used.
“(31) The Commission notes that no private investor was willing to provide financing for the revitalisation of CCH in absence of a State guarantee. According to the German authorities the guarantee may cover up to 100% of the outstanding loan. The Commission also understands that the premium price to be paid for the guarantee will be determined in the negotiations with the financiers. Therefore, the Commission has in its assessment of the GGE included in the guarantee based itself on the most conservative assumptions: 100% guarantee, no premium paid, low collateral.”
“(32) The Commission then calculated the advantage in the State guarantee in accordance with the section 4.2. of the Guarantee Notice. The Commission takes into account that the rating of Immo CCH rating is “good”, i.e. BBB […]. The Commission finds that in order to establish the advantage in the State guarantee, it is assumed that FHH provides low collaterals in value, the guarantee covers 100% of the outstanding amount and the risk margin paid for this loan is the minimum among the indicative bank offers. The market proxy for a risk-margin of the non-guaranteed loan with low collaterisation and with rating BBB is 2.2 % p.a [as indicated in the 2008 Communication on reference rates]. Among the submitted bank offers the minimum risk margin of a loan with 100 % guarantee amounts to 0.23 % p.a. The advantage thus amounts to 1.97 % p.a.. The Commission notes, that the advantage in the 100 % State guarantee for the loan is much higher than the advantage established by Germany of 0.52 % p.a.”
That is, the difference between the Commission and Germany was whether the quality of the collateral was high or low.
The Commission also stressed the significance of the fact that the guarantee extended to 100% of the loan. “(33) For the calculation of the aid element, the Commission took into account in particular whether the guarantee covers more than 80 % of each outstanding financial obligation and whether the specific characteristics of the guarantee and the loan (or other financial obligation) have been take into account when determining the market premium of the guarantee.” “(34) The Commission considers that FFH intends to provide a 100% guarantee for the financing of the CCH revitalisation. In that case, the Commission has to look into whether the lender had a real incentive to properly assess, secure and minimise the risk arising from the lending operation. Therefore, the Commission has examined more thoroughly the nature of this transaction. Firstly, the Commission notes that FHH has not yet decided whether the State guarantee will cover 80% or 100% of the outstanding loan. Secondly, the Commission calculated the GGE in the instruments already on the basis of a very cautious scenario and taking into account that the guarantee covers 100% of the outstanding loan. In line with section 4.1 of the Guarantee Notice, the Commission also examined whether there was any reason to doubt whether the bank which provided the rating for Immo CCH of BBB did not do a proper assessment. In this regard, the Commission established whether the increase in the risk margins for a loan with 80% State guarantee (expressed as a difference between the interest rate of loans with 100% and 80% guarantee) is comparably the same or at least lies in a range of risk margins differences in the comparable bank offers. The Commission then concluded that so calculated difference of 0.14 bp lies in the range of the differences in the risk margins of other bank offers and that the deviation from most other offers is minimal. The Commission therefore concludes that the rating of the Immo CCH (with BBB) by the bank has been established in a credible way.” “(35) The Commission then calculated the GGE included in the guarantee for the long term financing and concluded that under the most conservative approach, the aid element in the State guarantee could amount to maximum EUR 32 million, which is an amount higher than the one calculated by Germany of ca. EUR 8.9 million […] . The Commission also understands that the value of the precise collaterals to be provided is not yet known. Therefore, the advantage in the 100% State guarantee will depend on the final value of the collaterals provided by FHH to Immo CCH and will range between minimum EUR 8.9 and maximum EUR 32 million. Taking into account the value of direct grants of EUR 160 million, the overall advantage in the financing of CCH amounts to 192 million.”
Once the Commission established the maximum amount of State aid and, therefore, the size of the advantage, it turned its attention to the possible impact of the aid on trade.
“(37) As regards the issue whether the measure at stake has a potential to distort competition and has effect on intra-EU trade, the Commission made a distinction between the local cultural events (category a) and the international events (category b).” “(38) As regards the local cultural events, the Commission considers, in line with the principles set out in paragraph (196) of the [Notice on the Notion of State Aid], that there is only a limited effect on trade, where the beneficiary supplies goods and services to a limited area within a Member State and is unlikely to attract customers from other Member States, and that it could not be foreseen that the measure would have more than a marginal effect on the condition of cross-border investment or establishment. The Commission notes that […] category a) activities attract mainly local visitors. There is no indication in the file that local cultural activities would be promoted internationally, i.e. over the border of Germany. Moreover, the event´s organisers are local, respectively regional companies, whose activities are unlikely to attract visitors from other Member States. The Commission therefore concludes that the aid, to the extent it can be linked to these activities only aims at supplying services to a limited area within Germany and is unlikely to attract customers from other Member States. Considering that the revenues generated from these activities are very low as compared to their cost, it is rather unlikely that the financing of the non-commercial part of the CCH would have more than a marginal effect on cross-border investments or establishments.”
The last sentence of paragraph 38 is very interesting. It is a line of reasoning that is not normally used by the Commission in determining whether aid affects trade. The standard approach is to establish that the aided product is traded internationally, not to assess whether the aided activity breaks even or makes a substantial profit. What seems that the Commission says in paragraph 38 is that foreign event organisers would not be incentivised by the amount of aid to relocate in to Hamburg. The aid will trigger no gold rush.
For the remaining events of international character and appeal, the Commission had no hesitation to conclude that the aid would affect trade by inducing cross-border movement of both exhibitors and visitors.
Existence of State aid for the operator
The Commission also examined the possible existence of State aid at the level of the operator of the congress centre. The Commission, first, recalled the relevant principles from the Notice on the Notion of State Aid [Notice on the Notion of State Aid].
“(41) In line with principles set out in section 7.3 of the NoA, in particular paragraph (223), an operator who makes use of the aided infrastructure to provide services to end-users receives an advantage if the use of the infrastructure provides it with an economic benefit that it would not have obtained under normal market conditions. Guidance on how to establish whether the terms of operation comply with market conditions is provided in section 4.2 of the NoA.”
According to the NoA [paragraphs 90-96], the operator obtains no advantage under the following conditions:
- The tender procedure has to be competitive.
- All interested and qualified bidders can participate.
- All interested bidders are treated equally and are duly informed at each stage of the tender procedure.
- The selection criteria are objective and specified in advance.
- The winning bid is either the cheapest or most economically advantageous. In the case of concessions, it would be the one offering the highest price.
Under these conditions “a competitive tendering procedure [would] leave the successful bidder with a normal return, not more.”
Then the Commission considered whether the principles from the Notice on the Notion of State Aid were applied correctly to the selection of the operator of the congress centre. It found the selection procedure [which was explained earlier] in conformity with Art. 29 and 56 of the Directive 2014/24/EU on public procurement. It commented, however, on two features of the procedure. “(44) As the concession fee is not the only award criteria and the minimum fee should guarantee that the income from the operator covers at least the developers’ costs for facility management, the Commission considers that no reasonable market operator would contract services without this condition (income covers at least the operating costs). The special obligation to operate the CCH mainly as a centre for cultural activities […] does neither include any discrimination nor conditionality as any future operator could source cultural activities to be organised in the congress centre.”
On the basis of this reasoning, the Commission concluded that the benefit from the aid to the owner would not be passed on to the operator. Therefore, there was no state aid at the level of the operator. Since the operator would not receive any aid, it could not, in turn, pass any aid to the users of the congress centre. Aid at the level of the users was also excluded.
Compatibility of the State aid for the owner
As is the standard practice of the Commission, it considered the compatibility of the aid according to the common assessment principles.
- Objective of common interest: The aid supports objectives of Article 107(3)(d) TFEU.
- Appropriateness: The city of Hamburg tried, without success, to find a private investor to fund the revitalisation of the congress centre.
- Need for State intervention: The need of aid was shown by the funding gap. Because of the presence of non-economic activities “(49) the Commission also calculated the funding gap separately for the different activities and concluded that the funding gap of EUR 247 million covers also activities […] which are non-cultural in nature (of ca. EUR 58 million). The funding gap for the cultural activities amounts to ca. EUR 180 million, out of which EUR 108 million are linked to the non-commercial local events and hence not State aid relevant. The funding gap for the commercial cultural events amounts to ca. EUR 80 million.”
In this connection, the Commission noted that “(50) the cumulated maximum advantage included in the financing of the revitalisation of the CCH […] by means of EUR 192 million stemming, on the one hand, from an equity injection with a GGE of EUR 160 million and, on the other hand, from a guarantee with a GGE of maximum EUR 32 million is higher than the funding gap linked to the joined economic and non-economic cultural activities [= EUR 188 million = EUR 108 million + EUR 80 million]. The Commission considers however that the conceptually highest possible aid amount included in the State guarantee, which is linked to the fact of using a 1.97% market premium […] corresponds to a very low level of collateral which should not occur in the present case as the CCH constitutes, in itself a reasonable collateral which should allow for the spread between the annual guarantee premium of the guarantee and the real guarantee premium paid by the Immo CCH to FHH does not exceed 1.77% p.a. leading to a maximum GGE included in the guarantee not higher than EUR 28 million. The aid included in the financing of the revitalisation of the CCH will thus be proportionate to the extent it will exclusively cover the future cultural activities (both of economic and non-economic nature) to the exclusion of non-cultural activities like large international congresses. The Commission moreover notes that even if the cultural non-commercial activities would have qualified (quod non) as economic in nature, the total aid amount linked to the cultural activities would still be proportionate.” “(51) Moreover, the limitation of aid to cultural activities will not allow the Immo CCH to provide an advantage to the future non-cultural activities in view of the commitment of Germany to preserve the current proportion of cultural activities in the future. Moreover, the German authorities committed to maintain a minimum level of the cultural activities at 50% in future (following the organisation of the tender). The future operator will also have to foresee a separate accounting to ensure financial transparency and trace any cross-subsidies from cultural activities towards non-cultural activities. Finally, the German authorities committed to foresee a yearly monitoring of such cross-subsidies and to reduce proportionally the aid amount in case such cross-subsidies where to appear.”
It is very difficult to understand the meaning of paragraphs 50 & 51. First, the Commission seems to be saying that the likely amount of aid in the guarantee was not EUR 32 million but EUR 28 million. Second, the figures provided in the Commission decision do not add up. They indicate the following:
The overall amount of aid was EUR 192 million.
The funding gap for cultural non-economic and local activities was EUR 108 million.
The finding gap for cultural activities of economic nature was EUR 80 million.
The funding gap for international activities was EUR 58 million.
Therefore, the net aid after subtracting what is necessary to cover the gap for non-economic & local activities was EUR 84 million [= 192 – 108]. The gap for economic activities, cultural and international, was EUR 139 million [= 81 + 58]. Therefore, if all the remaining aid would go to cover the gap of EUR 139, there would still be a deficit of EUR 51 million [= 139 – 84]. It is not at all clear how the deficit of EUR 51 million would be covered.
- Avoidance of undue negative effects on competition and trade between the Member States: The tendering out of the operation was considered to minimise distortions. The aid amount was lower than the funding gap. And the congress centre was not dedicated to a particular user.
But here the Commission appeared to contradict what it said earlier in its decision with respect to the affectation of trade. “(52) There are no many cultural and congress centres in Germany which would allow for hosting large events with more than 1.000 visitors.” If the whole of Germany is the relevant catchment area then the distance from southern Germany to Hamburg is certainly longer than the distance from border areas of Sweden, Denmark, the Netherlands, Belgium, Czech Republic and Poland.
Nonetheless, the Commission found the aid to be compatible with the internal market.
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[1] The full text of the Commission decision can be accessed at:
http://ec.europa.eu/competition/state_aid/cases/259545/259545_1894651_204_2.pdf.
