E2003C1204(01)

State aid

SAM 020.500.040 - Norway

(2003/C 294/08)

EFTA Surveillance Authority notice pursuant to Article 1(2) of Protocol 3 of the Surveillance and Court Agreement, to other EFTA States, EU Member States and interested parties regarding proposed aid with regard to the sale of 1744 rental apartments in Oslo (State aid SAM 020.500.040).

By means of Decision No 113/03/COL of 11 July 2003, the EFTA Surveillance Authority initiated proceedings pursuant to Article 1(2) of Protocol 3 of the Surveillance and Court Agreement. The Norwegian Government has been informed by means of a copy of the decision.

I. FACTS

1. Notification

By letter from the Mission of Norway to the European Union dated 10 February 2003 (Document No 03-829-A), forwarding a letter from the Ministry of Trade and Industry dated 7 February 2003 and a letter without date from the Municipality of Oslo (including 31 annexes), all received and registered by the Authority on 11 February 2003, the Norwegian authorities submitted a notification pursuant to Article 1(3) of the Surveillance and Court Agreement of the Municipality of Oslo's decision to sell 1744 municipal rental apartments in Oslo.

By letter dated 9 April 2003 (Document No 03-2133-D), the Authority requested further information. In this letter, the Competition and State Aid Directorate also expressed doubts about the compatibility of the sale with the State aid provisions of the EEA Agreement.

By telefax from the Ministry of Trade and Industry dated 14 May 2003 (Document No 03-3127-A), forwarding a letter dated 14 May 2003 from the Municipality of Oslo (Office of the City Advocate), both received by the Authority on 14 May 2003, the Norwegian authorities submitted additional information. The same documents were received by letter from the Norwegian Mission to the European Union dated 5 June 2003, received and registered by the Authority on 10 June 2003 (Document No 03-3630-A).

2. Background

By letter dated 18 May 2001 (Document No 01-3792-D), the Authority requested that the Norwegian authorities submit all relevant information regarding the sale of 1744 apartments to "Fredensborg Boligutleie ANS" so that the Authority could assess whether the sale was in accordance with Article 61 of the EEA Agreement and Chapter 18(B), "State aid elements in sales of land and buildings by public Authorities", of the Authority's State Aid Guidelines.

By letter of 31 May 2001 (Document No 01-4004-D), the Authority reminded the Norwegian authorities of the "standstill-clause" in Article 1(3) of Protocol 3 to the Surveillance and Court Agreement and the injunction provisions ("interim measures") contained in Chapter 6, "Specificities regarding aid unlawful on procedural grounds", of the State Aid Guidelines.

By letter dated 26 June 2001 from the Mission of Norway to the European Union, received and registered by the Authority on the same day (Document No 01-5730-A), the Norwegian authorities submitted the documents they, in agreement with the Municipality of Oslo, regarded as containing the most relevant available information in order to assess whether the sale was in accordance with Article 61 of the EEA Agreement. The information submitted on 26 June 2001 contains a letter from the Ministry of Trade and Industry to the Authority dated 15 June 2001. The Ministry states in this letter "that the Ministry does not want to express any view on the considerations presented in the submitted documents".

The information submitted on 26 June 2001 also contains a letter dated 5 June 2001 from the Municipality of Oslo to the Ministry of Trade and Industry. In this letter the Municipality of Oslo argues that the sale is in accordance with the Authority's State Aid Guidelines. The Municipality claims that an independent expert evaluation was carried out in accordance with Chapter 18(B), point 2(2) of the State Aid Guidelines and that the divergence of 3,4 % between the sales price and the value assessment is in line with market conditions as described in Chapter 18(B), point 2(2)(b) of the State Aid Guidelines.

The Municipality of Oslo points out that the sales process must be seen in light of the time constraints. The Government, implementing a hospital reform, caused the time constraint that the Municipality was subject to(1). In the letter of 5 June 2001 it is stated that the time constraint might have resulted in a smaller number of bidders than desirable, and that the buyers submitted lower bids than those they would have submitted in a situation with more time at their disposal(2). The Municipality argues, however, that a potentially lower price caused by the time constraint does not amount to State aid as long as the Municipality, in such a situation (under time constraints), has behaved as a private investor would have behaved in such circumstances.

By letter dated 20 July 2001 (Document No 01-5673-D), the Authority stated that it had strong doubts regarding whether the procedure provided for in Chapter 18(B), point 2(2) of the State Aid Guidelines was followed. The Authority expressed doubts whether the evaluation was carried out prior to the sales negotiations, whether the evaluation was carried out on the basis of generally accepted market indicators and valuation standards and whether a sales price 3,4 % below the evaluation was in accordance with the State Aid Guidelines. The Authority invited the Norwegian authorities to comment on this matter, which the Authority would take into consideration before taking a decision on whether to open a formal investigation procedure (Article 1(2) of Protocol 3 to the Surveillance and Court Agreement).

The Ministry of Trade and Industry submitted its comments by telefax on 27 July 2001 (Document No 01-6026-A), received and registered by the Authority the same day, where the Ministry stated that further proceedings "will be carried out with the purpose to ensure that Norway's obligations under Article 61 of the EEA Agreement are respected". The Ministry informed the Authority that on 25 July 2001 the County Governor of Oslo and Akershus decided that the Municipality of Oslo cannot lawfully transfer the right of ownership before the County Governor has made his final decision. A new expert evaluation of the value of the buildings would also be carried out. (The results of the new value assessment was contained in the letter from the Municipality of Oslo received on 11 February 2003, see point I(3)).

By letter dated 31 July 2001 (Document No 03-829-A), the Authority informed the Norwegian authorities that it had decided not to open a formal investigation procedure at this stage. The Authority stated that it was awaiting a formal notification of the sale in accordance with its State Aid Guidelines.

3. Description of the proposed sale

In March 2001, the Municipality of Oslo decided to sell a portfolio of 1744 rental apartments before the end of May 2001. These apartments were mainly rented out to employees in municipal hospitals. On 16 March 2001 the independent real estate agency, Akershus Eiendom AS, was given the task of selling the apartments en bloc on behalf of the Municipality of Oslo. On 30 March 2001 an independent consultancy firm, Catella Eiendoms-Consult AS, submitted a report on and appraisal of the apartments. A second appraisal was later ordered from an independent appraiser, OPAK AS, and submitted on 26 April 2001. Akershus Eiendom launched the sale on 2 April 2001 with the report from Catella. The sale of the apartments was made public by a press release dated 19 April 2001. A prospectus covering the apartments was distributed on 23 April 2001. The appraisal done by OPAK proved to be more modest than Catella's; NOK 795 million versus NOK 1143 million. OPAK's appraisal was also distributed to potential investors.

Investors were asked to submit their bids by 2 May, and the bidding contest was brought to an end on 3 May. On 8 May, Sundal Collier & Co ASA, Fredensborg Boligutleie ANS being its successor, undertook to purchase the apartments. The Municipality of Oslo considered this binding offer for three more weeks. An adjustment of the OPAK appraisal was requested by the Municipality of Oslo in order to reflect a correction of the value of certain leases due to factual circumstances not considered in the original appraisal. These factual corrections lead OPAK to reduce the value of the assets to NOK 740 million. The adjustments were presented to the Municipality of Oslo on 14 May. By signing the contract on 31 May, the Municipality of Oslo sold the 1744 apartments en bloc at a price of NOK 715 million to Fredensborg Boligutleie ANS.

In 2001 the Authority received information concerning the sales process and the value assessments from Catella and OPAK described in brief above. In the letter from the Municipality of Oslo attached to the letter dated 7 February 2003 from the Ministry of Trade and Industry, the Municipality submitted comprehensive information concerning the sale, including information already submitted to the Authority in 2001. In the following, the Authority has summarised in particular the new information and arguments submitted.

The conclusion of the new appraisal carried out by FIGA/Nortakst (in June 2002) was that the value of the apartments was NOK 1055 million. In the letter from the Municipality of Oslo attached to the letter dated 7 February 2003 from the Ministry of Trade and Industry, the Municipality contests whether this appraisal reflects the value of the apartments and concludes that the appraisal from OPAK best reflects the market value.

The Municipality furthermore argues that the sale falls outside the scope of Article 61(1) EEA. The first reason is that the Municipality considers that the price obtained reflects the market value of the assets. In the view of the Municipality, the sale was made after a well publicized open auction with several participants, all having equal access to the relevant information, and the bidder with the highest bid was chosen. Thus, the sale "is by definition at market value and consequently does not contain State aid". Given this, it is, according to the Municipality, also irrelevant "if a different valuation of the assets existed prior to the bidding procedure". In the present case the Municipality considers that there was, even at the time of the sale, an independent appraisal of the assets that confirms that market value was obtained.

Secondly, the Municipality considers that even if one should find that there is an element of aid in the transaction, and that competition has been distorted as a consequence of certain undertakings, i.e. Fredensborg Boligutleie ANS being favoured, there is no indication that intra-EEA trade is affected. In this context, the Municipality considers that the relevant market is the market for rental homes. As Fredensborg Boligutleie ANS, in its capacity as provider of rental homes in Oslo and surrounding areas, is not in a competitive relationship with providers of rental homes in other EEA-countries, the Municipality argues that the exchange of services between EEA countries is not affected. Also, it is highly unlikely that an aid to Fredensborg would affect cross-border trade in other markets. The Municipality therefore concludes that the sale of the apartments does not involve any State aid within the meaning of Article 61 EEA.

In the letter from the Municipality of Oslo dated 14 May 2003, the Municipality of Oslo submits firstly that it will not argue that the apartments were sold in full compliance with the procedure described in Chapter 18(B), point 2(1) of the State Aid Guidelines, but that the price achieved nonetheless reflects market value. Secondly, the Municipality argues that the sale was conducted in accordance with Chapter 18(B), point 2(2) of the State Aid Guidelines and that the valuation carried out by OPAK (NOK 740 million) expressed the market value. Thirdly, considering the cross-border impact, the Municipality argues that the Authority has not done an assessment of the market as called for.

Finally, the Municipality refers to a letter dated 18 February 2003 from Fredensborg Boligutleie ANS (the buyer) to the Authority, where the buyer argues that one must be able to apply "the private investor test" to the sale and that the time constraint caused by the hospital reform is relevant when assessing whether the price obtained is below market value.

II. APPRECIATION

1. Notification requirement and standstill-obligation

Article 1(3) of Protocol 3 to the Surveillance and Court Agreement states: "The EFTA Surveillance Authority shall be informed, in sufficient time to enable it to submit its comments, of any plans to grant or alter aid". Aid provided without notification or aid that is notified late, i.e. notified after being "put into effect" is considered unlawful aid, see Chapter 3.2.2(1) of the State Aid Guidelines.

Chapter 18(B), point 2(3) of the State Aid Guidelines states inter alia that the EFTA States should notify any sale of land and buildings by public authorities that was not concluded on the basis of an open and unconditional bidding procedure and any sale that was, in the absence of such procedure, conducted at less than market value.

Chapter 3, point 2(1)(5) of the State Aid Guidelines also states that: "When an EFTA State has doubts whether or not a planned measure contains State aid elements, the EFTA Surveillance Authority should be informed of it before the measure is put into effect".

The transfer of ownership of the apartments is still subject to the final decision of the County Governor of Oslo and Akershus. In light of these circumstances, the Authority takes note of the notification submitted by the Norwegian authorities by letter from the Mission of Norway to the European Union dated 10 February 2003, received and registered by the Authority on 11 February 2003 (Document No 03-829-A), telefax from the Ministry of Trade and Industry dated 14 May 2003, received and registered by the Authority on 14 May 2003 (Document No 03-3127-A), and letter from the Mission of Norway to the European Union dated 5 June 2003, received and registered on 10 June 2003 (Document No 03-3630-A).

2. The existence of State aid and compatibility of the aid

Article 61(1) of the EEA Agreement reads as follows:

"Save as otherwise provided in this Agreement, any aid granted by EC Member States, EFTA States 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 Contracting Parties, be incompatible with the functioning of this Agreement."

Aid falling within this provision is incompatible with the EEA Agreement and hence prohibited, provided that the following four conditions are fulfilled:

1. the aid is granted by "EC Member States, EFTA States or through State resources in any form whatsoever";

2. the aid "distorts or threatens to distort competition";

3. the aid favours "certain undertakings or the production of certain goods"; and

4. the aid "affects trade between the Contracting Parties".

Chapter 18(B), "State aid elements on sales of land and buildings by public Authorities", of the State Aid Guidelines, gives further information on how the Authority interprets and applies the provisions of the EEA Agreement governing State aid when it comes to assessing sales of land and buildings. Chapter 18(B), point 2(1) describes a sale through an unconditional bidding procedure, while Chapter 18(B), point 2(2) describes a sale without an unconditional bidding procedure (independent expert evaluation). These two procedures allow EFTA States to handle sales of land and buildings in a way that precludes the existence of State aid.

Condition 1 of Article 61(1) EEA

Condition 1 above is directed at all aid financed from public resources, including aid granted by regional or local bodies. It is thus clear that aid from the Municipality of Oslo falls within the notion of State resources. Sale of publicly owned land and buildings below market value implies an involvement of State resources.

In the letter dated 14 May 2003, the Municipality of Oslo states (see point I(3)) that it will not argue that the procedure followed was in full compliance with the requirements set out in Chapter 18(B), point 2(1) of the Guidelines, but that the objectives behind these provisions were obtained (i.e. market value).

In Chapter 18(B), point 2(1)(1)(a) of the State Aid Guidelines it is stated that:

"An offer is 'sufficiently well-publicized' when it is repeatedly advertised over a reasonably long period (two months or more) in the national press, estate gazettes or other appropriate publications and through real-estate agents addressing a broad range of potential buyers, so that it can come to the notice of all potential buyers.

The intended sale of land and buildings, which in view of their high value or other features may attract investors operating on a Europe-wide or international scale, should be announced in publications which have a regular international circulation. Such offers should also be made known through agents addressing clients on a Europe-wide or international scale".

As far as the Authority understands the sales process described in the notification, the sale was not advertised in accordance with the above quoted provisions of the State Aid Guidelines. The Authority has therefore strong doubts as to whether the Municipality of Oslo obtained the objectives behind the provisions of Chapter 18(B), point 2(1) of the Guidelines.

In the letter dated 14 May 2003, the Municipality of Oslo furthermore argues (see point I(3)) that the sale was conducted in compliance with Chapter 18(B), point 2(2) (independent expert evaluation) of the State Aid Guidelines.

Chapter 18(B), point 2(2)(a) of the State Aid Guidelines states inter alia that: "an independent evaluation should be carried out by one or more independent asset valuers prior to the sales negotiations in order to establish the market value on the basis of generally accepted market indicators and valuation standards". Furthermore, in Chapter 18(B), point 2(2)(b) it is stated: "If, after a reasonable effort to sell the land and buildings at the market value, it is clear that the value set by the valuer cannot be obtained, a divergence of up to 5 % from that value can be deemed to be in line with market conditions".

Based on the information submitted, the Authority has strong doubts as to whether the evaluation by OPAK (the evaluation used by the Norwegian authorities) was carried out prior to the sales negotiations, whether the evaluation was carried out on the basis of generally accepted market indicators and valuation standards and, taking into account the time constraint, whether a reasonable effort to sell the apartments at market value took place.

Furthermore, the sales price agreed (and notified) was NOK 715 million, while the result of the new value appraisal from FIGA/Nortakst was NOK 1055 million (see point I(3)). The Municipality of Oslo argues that the appraisal from OPAK (NOK 740 million) should be chosen as reflecting market value. Taking into account the huge discrepancy between the two appraisals, the Authority has strong doubts as to whether the agreed sales price (NOK 715 million) reflects the market value.

Conditions 2 and 4 of Article 61(1) EEA

Conditions 2 and 4 entail that the measure must distort or threaten to distort competition and affect trade between the contracting parties. Under settled case law for the purposes of these provisions, the mere fact that an aid strengthens a firm's position compared with that of other firms, which are competitors in intra-EEA trade, is enough to allow the conclusion to be drawn that intra-EEA trade is affected. It is irrelevant that the aided enterprises do not export its produce.

The Municipality of Oslo argues (see point I(3)) that even if the price obtained were found to be below market value the sale of the apartments would not constitute aid within the meaning of Article 61(1) EEA because the market in which the buyer is involved does not contain elements of cross-border trade. The Municipality also argues that the market for rental homes in south-eastern Norway has a local character.

The Authority considers that the real estate market in Oslo is not limited to local undertakings. Fredensborg Boligutleie ANS is actually or potentially in competition with similar undertakings in Norway and other EEA States. A sales price below market value favouring Fredensborg Boligutleie ANS would distort or threaten to distort competition and affect trade between Contracting Parties. Consequently, conditions 2 and 4 are, in the Authority's view, fulfilled.

Condition 3 of Article 61(1) EEA

Condition 3 means that the measure must be specific or selective, i.e. that it affects the balance between the beneficiary and its competitors. In the case at hand, the beneficiary would be Fredensborg Boligutleie ANS. The Authority understands that it is not disputed that this condition is fulfilled.

Conclusion concerning Article 61(1) EEA

In view of the considerations above, it appears to the Authority that the sale of the concerned apartments may constitute State aid in the meaning of Article 61(1) of the EEA Agreement.

3. Private investor test

In the letter dated 14 May 2003, the Municipality of Oslo refers to a letter to the Authority dated 18 February 2003 from the buyer of the apartments (Fredensborg Boligutleie ANS) where the buyer argues that one must be able to apply "the private investor test" (see point I(3)).

As regards the position of the Municipality of Oslo as investor, the argument that the transaction at issue was reasonable for the Municipality taking into account the hospital reform and the alleged time constraint, does not, in the Authority's view, preclude the application of the provisions on State aid contained in the EEA Agreement. The hospital reform does not obviate the need to ascertain whether the sale strengthens the buyer's position by giving him an advantage that he would not have obtained under normal market conditions.

The Authority has therefore doubts as to the arguments from the Municipality of Oslo (and the buyer) also on this point.

4. Compatibility of the aid

The Norwegian authorities have argued that the notified sale does not contain aid, and have not put forward any arguments concerning compatibility. However, after assessing the likely involvement of State aid in the sale of the apartments, it has to be considered whether such aid could be compatible with the EEA Agreement by virtue of Article 61(2) and (3) of the Agreement.

The application of Article 61(2) does not appear to be appropriate. For example, the Authority cannot see that the sale entails aid having a social character granted to individual consumers.

Given the information the Authority has received, there appears no reason to apply Article 61(3)(a)-(c) of the EEA Agreement either. In the view of the Authority, the sale is not designed to promote the economic development of areas where the standard of living is abnormally low or where there is serious underemployment, to promote a project of common European interest or to facilitate the development of certain economic activities or of certain economic areas.

5. Conclusion

In view of the above facts and considerations, the Authority has doubts whether the sale of 1744 apartments from the Municipality of Oslo to "Fredensborg Boligutleie ANS" contains State aid, and if it does, about the compatibility of the aid with the functioning of the EEA Agreement. Consequently, and in accordance with Chapter 5(2) of the State Aid Guidelines, the Authority is obliged to open the procedure provided for in Article 1(2) of Protocol 3 to the Surveillance and Court Agreement. The decision to open proceedings is without prejudice to the final decision of the Authority, which may conclude that the sale in question is compatible with the functioning of the EEA Agreement.

HAS ADOPTED THIS DECISION:

1. The Procedure provided for in Article 1(2) of Protocol 3 to the Surveillance and Court Agreement is opened with regard to the notified sale of 1744 apartments from the Municipality of Oslo to "Fredensborg Boligutleie ANS".

2. The Norwegian Government is invited, pursuant to point 5(3)(1)(1) of Chapter 5 of the Authority's State Aid Guidelines, to submit its comments on the opening of the formal investigation procedure within two months from the notification of this decision.

3. The Norwegian Government is requested to submit all information enabling the Authority to examine the compatibility of the sale in question with the EEA Agreement within two months from the notification of this decision.

4. The Norwegian Government is requested to notify without delay the potential recipient undertaking, "Fredensborg Boligutleie ANS", of the initiation of the proceedings and to inform the undertaking that it may have to repay any aid unduly received.

5. Other EFTA States, EC Member States and interested parties shall be informed by the publishing of this decision in the EEA Section of the Official Journal of the European Union and the EEA Supplement thereto, inviting them to submit comments within one month from the date of publication.

6. This decision is authentic in the English language.

Done at Brussels, 11 July 2003.

For the EFTA Surveillance Authority

Einar M. Bull

The President

Hannes Hafstein

College Member

The EFTA Surveillance Authority hereby gives the EFTA States, EU Member States and interested parties notice to submit their comments on the measures in question within one month from the publication of this notice to: EFTA Surveillance Authority 74, rue de Trèves B - 1040 Brussels.

The Comments will be communicated to the Norwegian Government. Confidential treatment of the identity of the interested party submitting the comments may be requested in writing, stating the reasons for the request.

(1) Ot.prp. nr 66 (2000-2001) Om lov om helseforetak m.m. (helseforetaksloven).

(2) The passage reads as follows in Norwegian:"Dette tidspresset kan ha ført til at kretsen av interesserte ble mindre enn ønskelig, og/eller at kjøperne la inn lavere bud enn de ville gjort i en situasjon med bedre tid".