The Port of Antwerp is managed by the Antwerp Port Authority, a public authority, and fully-owned by the city of Antwerp. The Authority makes land available to companies to operate in the port area on the basis of concession agreements.
The concession agreements for PSA Antwerp NV and Antwerp Gateway NV, two container terminal operators in the Port of Antwerp, contained a requirement that a minimum amount of containers must be handled in the port every year (minimum tonnage requirements). Between 2009 and 2012 PSA Antwerp NV and Antwerp Gateway NV did not reach these minimum tonnage requirements. Under the agreements, they were obliged to pay compensation to the Authority. However, instead of collecting the compensation due from the two companies, in March 2013 the Antwerp Port Authority retroactively revised the minimum tonnage requirements downwards. This significantly reduced the amount of compensation to be paid by PSA Antwerp and Antwerp Gateway (by around 80%).
Following a complaint from a competitor, the Commission has opened an in-depth investigation to examine whether a private investor would have accepted to reduce its compensation in a similar manner. If the operation was not carried out on market terms it could constitute state aid as defined by EU rules. The Commission would then verify whether such aid could be authorised under state aid rules that allow Member States to grant state aid for certain public interest goals.
The opening of an in-depth investigation gives interested third parties the opportunity to submit comments on the measures under assessment. It does not prejudge the outcome of the investigation.
In 2004, the Antwerp Port Authority concluded with PSA Antwerp NV and Antwerp Gateway NV concession contracts for the provision of services related to the transhipment of containers in the Deurganck dock of the Port of Antwerp. The concession contracts were concluded for a period of 42 years, i.e. until 2046.
The Antwerp Port Authority is a public authority and therefore the reduction in compensation that it granted to PSA Antwerp NV and Antwerp Gateway NV is a public intervention.
Under EU state aid rules, public interventions in favour of companies can be considered free of state aid when they are made on terms that a private operator would have accepted under market conditions (the market economy investor principle - MEIP). If this principle is not respected, the public interventions involve state aid within the meaning of Article 107 of the Treaty on the Functioning of the European Union, because they confer an economic advantage on the beneficiary that its competitors do not have.
A non-confidential version of this decision will be made available under case number SA.35905 in the State Aid register on the competition website once any confidentiality issues have been resolved. New publications of state aid decisions on the internet and in the Official Journal are listed in the State Aid Weekly e-news.