HTML PUBLIC "-//W3C//DTD HTML 4.01 Transitional//EN"L 289/56
EN
Official Journal of the European Union
19.10.2012
COMMISSION DECISION
of 21 March 2012
on State aid SA.29864 (C 6/10) (ex NN 1/10) implemented by the Czech Republic for eské
aerolinie, a. s. (SA — Czech Airlines a.s. — possible State aid implications of a loan provided
by Osinek a.s.)
(notified under document C(2012) 1664)
(Only the Czech version is authentic)
(Text with EEA relevance)
(2012/637/EU)
THE EUROPEAN COMMISSION,
further questions by letter dated 6 July 2010, to which
the Czech Republic replied on 15 September 2010.
Having regard to the Treaty on the Functioning of the European
Union, and in particular the first subparagraph of Article 108(2)
thereof,
(3) The
opening
decision
was
published
in
the Official Journal
Having regard to the Agreement on the European Economic
of the European Union.. The Commission invited interested
Area, and in particular Article 62(1)(a) thereof,
parties to submit their comments on the measure.
Having regard to the decision by which the Commission
decided to initiate the procedure laid down in Article 108(2)
(4) The
Commission
received
comments
from
four
interested
of the Treaty on the Functioning of the European Union ( 1 ), in
parties: Travel Service and Icelandair Group on 10 March
respect of the aid SA.29864 (C 6/10, ex NN 1/10, CP
2011, Czech Connect Airlines a.s. on 11 March 2011,
371/2009) ( 2 ),
JOB AIR Technic a.s. on 10 March 2011, and SA on
14 March 2011. The Commission forwarded these
Having called on interested parties to submit their comments
comments to the Czech Republic, which was given the
pursuant to the provisions cited above and having regard to
opportunity to reply; the Commission received the reply
their comments,
by letter dated 12 May 2011.
Whereas:
2. DETAILED DESCRIPTION OF THE MEASURE
1. PROCEDURE
2.1. The Osinek loan
(1) In
May
2009,
on
the
basis
of
publicly
available
information, the Commission learned that a state-
(5) The
measure
under
investigation
is
a
loan
granted
on
owned company in liquidation called Osinek a.s.
30 April 2009 by Osinek to the Czech national flag
(‘Osinek’) had agreed to grant a loan of CZK 2,5
carrier, SA. The loan was disbursed in three tranches
billion (approximately EUR 100 million) to SA —
as follows:
Czech airlines, a. s. (‘SA’). The Commission requested
information from the Czech Republic by letters dated
14 May 2009 and 24 September 2009. The Czech
(a) the first tranche, for CZK 800 million, was drawn on
Republic provided the Commission with further
11 May 2009;
information by letters dated 10 September 2009 and
25 November 2009.
(2) By
letter
dated
24
February
2010
the
Commission
(b) the second tranche, for CZK 900 million, was drawn
informed the Czech Republic of its decision to initiate
on 30 July 2009; and
the procedure laid down in Article 108(2) TFEU in
respect of the measure (‘the opening decision’). The
Czech Republic provided comments on that decision
(c) the third tranche, for CZK 800 million, was drawn
by letter dated 26 April 2010. The Commission asked
on 24 September 2009.
( 1 ) With effect from 1 December 2009, Articles 87 and 88 of the EC
Treaty have become Articles 107 and 108 respectively of the Treaty
(6) The
expected
date
of
repayment
was
30
November
2010,
on the Functioning of the European Union (‘TFEU’). The two sets of
provisions are, in substance, identical. For the purposes of this
with the possibility of prolongation. The interest rate on
Decision, references to Articles 107 and 108 of the TFEU should
the loan was the three-month Prague Inter Bank Offered
be understood as references to Article 87 and 88, respectively, of the
Rate (‘PRIBOR’) plus 300 basis points as a risk premium,
EC Treaty when appropriate. The TFEU also introduced certain
i.e. 5,51 % at the date on which the loan agreement was
changes in terminology, such as the replacement of ‘Community’
signed. Interest was due on a quarterly basis on the last
by ‘Union’ and ‘common market’ by ‘internal market’. The
business day of a calendar quarter (interest period).
terminology of the TFEU will be used throughout this Decision.
( 2 ) Commission Decision C(2010) 987 final of 24 February 2010 (OJ C
Interest was calculated daily from the day preceding the
43, 11.2.2011, p. 6).
repayment of the Osinek loan.

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EN
19.10.2012 Official
Journal
of
the
European
Union L
289/57
(7)
According to the Czech authorities, the risk margin of
addendums to the Osinek loan agreement were
300 basis points correctly reflects an appropriate risk
concluded, extending and modifying the collateral
margin for the financial situation of the company,
assets ( 1 ). The Czech authorities claim that all these
which had a Standard & Poor's B rating (vulnerable
changes respected the condition stipulated in the
financial situation), and the level of collateralisation of
Osinek loan agreement that the actual loan amount
the loan, which amounted to 110 % of the loan amount.
must not exceed 90 % of the value of the collateral at
any point in time or the agreed maximum loan amount.
(8) The
collateral
used
to
secure
the
loan-comprised
buildings located at Prague Ruzyně airport, land, inven
(9) The
Osinek
loan
was
not
repaid
as
initially
envisaged,
but
tories and spare parts. The market value of most of the
was instead decollateralised and the debt capitalised on
collateral was established by an independent expert. Four
30 June 2010 (debt-for-equity swap).
Table 1
Overview of the assets securing the Osinek loan
Collateral Value
in
CZK
(million) Value
determined
by Period
of
use
Operational building — Hangar F
[925 - 990] (*) YBN
Consult
—
Znaleck
ústav
s.r.o., from 11 May 2009 (1st
(including land under the building)
Expert opinion of 1 June 2009
tranche)
Administrative building ‘APC’ (including
[735 - 770] YBN
Consult
—
Znaleck
ústav
s.r.o., from 30 July 2009 (2nd
land under the building)
Expert opinion of 5 July 2009
tranche) until 9 December
2009 (cancelled by 3rd
Addendum)
Spare parts (rotating spare parts and/or
[150 - 165] Valuation
based
on
net
book
value
at from 24 September 2009
replacement engines)
30 September 2009
(3rd tranche)
Spare parts (rotating, type A310 (all) and
[520 - 575] Valuation
based
on
net
book
value
at from 24 September 2009
Boeing
30 September 2009
(3rd tranche) until
25 January 2010 (4th
Addendum)
Land around the ‘APC’ administrative
[60 - 65] YBN
Consult
—
Znaleck
ústav
s.r.o., from 23 July 2009 (1st
building
Expert opinion of 5 July 2009
Addendum) until 25 January
2010
Land around and adjacent to Hangar F [105
-
115] YBN
Consult
—
Znaleck
ústav
s.r.o., from 23 July 2009 (1st
Expert opinion of 5 July 2009
Addendum)
Spare parts, type: A319/320 [265
-
290] Based
on
net
book
value from
23
July
2009
(1st
Addendum)
Spare parts, type: A310, ATR and Boeing [440
-
485] Based
on
net
book
value from
22
September
2009
(2nd Addendum)
Flight simulator [155
-
170] YBN
Consult
—
Znaleck
ústav
s.r.o., from 22 September 2009
Expert opinion of 10 September 2009
(2nd Addendum)
1 Boeing 737-55s, registration mark: OK
[140 - 155] YBN
Consult
—
Znaleck
ústav
s.r.o., from 9 December 2009 (3rd
CGK
Expert opinion of 7 December 2009
Addendum)
2 Boeing 737-55s, registration marks: OK
[300 - 330] YBN
Consult
—
Znaleck
ústav
s.r.o., from 9 December 2009 (3rd
CGH, OK CGJ
Expert opinion of 7 December 2010
Addendum) until 25 January
2010 (4th Addendum)
IT [80
-
85] PROSCON
—
s.r.o.,
Expert
opinion
of from 9 December 2009 (3rd
30 November 2009
Addendum)
‘SA CZECH AIRLINES’ trademark [140
-
155] Vladimir
Cmejla,
Expert
opinion
of
from 9 December 2009 (3rd
30 November 2009
Addendum)
SA's share in SA Support, s.r.o. [790
-
865] PROSCON
—
s.r.o.,
Expert
opinion
of from 25 January 2010 (4th
20 January 2010
Addendum)
(*) Business secret.
( 1 ) The first addendum was concluded on 23 July 2009, the second on
22 September 2009, the third on 9 December 2009 and the fourth
on 25 January 2010.

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L 289/58
EN
Official Journal of the European Union
19.10.2012
2.2. Scope of this Decision
the increase of SA's registered capital. The loan capitali
sation (debt-for-equity swap) was legally based on that
(10) The
opening
decision
dated
24
February
2010
refers
to
Resolution and implemented on 30 June 2010.
the Osinek loan of CZK 2,5 billion on the basis of the
loan agreement concluded on 30 April 2009 and
assumes that the decollateralisation of the loan on the
basis of Czech Government Resolution No 1343 of
26 October 2009 had already been carried out.
2.4. The beneficiary, SA
However, the decollateralisation of the loan and its capi
(14) SA has been the national air carrier of the Czech
talisation (the debt-for-equity swap) was notified to the
Republic since 1923. It is headquartered in Prague and
Commission on 12 May 2010 (SA.30908 SA — Czech
operates from Prague Ruzyně airport. SA is the largest
Airlines — Restructuring plan) and implemented in June
airline based at Prague Ruzyně airport, accounting for
2010. Therefore, this decision deals only with the Osinek
37 % of the passengers whose trip originates or finishes
loan of CZK 2,5 billion itself on the basis of the loan
in Prague. SA is a member of the Sky Team alliance.
agreement concluded on 30 April 2009. The assessment
Before restructuring, the fleet of SA comprised 51
of the decollateralisation and subsequent debt-for-equity
aircraft. SA offers scheduled air transport services (to
swap of the Osinek loan will be the subject of the final
104 destinations in 44 countries). SA also provides
decision in Case SA.30908.
charter flights, cargo services, ground handling services
(it handles approximately 60 % of all passengers at
Prague Ruzyně airport), aircraft maintenance services,
crew training services, catering services, and it operates
duty-free shops at Prague Ruzyně airport and duty-free
sales on board.
2.3. Osinek
(11) Osinek
was
a
financial
vehicle
corporation
founded
in
order to supervise the closure of coal mines in the
2.4.1. Ownership structure
Czech Republic and their revitalisation. At the time
when the loan was granted, it was 100 %-owned by
(15) SA is a state-owned company with 95,69 % of its
the Czech authorities under the supervision of the
shares owned by the Czech Republic through the
Ministry of Finance. On 5 November 2008 Osinek
Ministry of Finance. The minority shareholders are
went into liquidation. Before its liquidation, Osinek still
eská pojiovna, a.s. (2,26 %), the City of Prague
had funds at its disposal, and was reportedly looking for
(1,53 %) and the City of Bratislava (0,51 %).
different investment possibilities. The Osinek loan
agreement was concluded and signed on 30 April
2009 on behalf of Osinek by its liquidator. In order to
identify potential risks associated with the loan, Osinek
(16) Upon completion of the restructuring process, the State
commissioned an economic analysis of SA from an
aims to find a strategic partner for SA. As preparation
independent expert, European Business Consulting spol.
for the planned privatization, the Czech Government
s.r.o. (‘EBC’), as well as a legal analysis from the law firm,
decided to create a new corporate structure under the
JUDr. Jií Rybá & JUDr. Pavel trbík.
umbrella of esk Aeroholding, a.s. (‘AH’).
(17) On
25
October
2011,
the
Czech
competition
authority
approved the creation of AH that will include SA,
(12) On
29
September
2009
Osinek
and
the
Ministry
of
Prague Ruzyně airport and SA's current subsidiaries,
Industry and Trade of the Czech Republic signed an
i.e. Czech Airlines Handling, Holidays Czech Airlines,
agreement under which Osinek's accounts receivable
Technics and SA Services s.r.o. AH's management
from SA arising from the Osinek loan agreement
and structure would comprise elements of a financial
were assigned to the Ministry as a result of the Osinek
holding structure, its purpose being to restructure the
liquidation procedure. SA received notice of this
companies grouped within the holding to facilitate their
assignment on the same day. On 8 March 2010 the
access to commercial financing and to prepare them for
Osinek liquidation procedure was completed.
the upcoming privatisation.
2.4.2. Financial situation of the company
(18) SA has experienced difficulties which worsened signifi
(13) On 3 May 2010 the Czech Government adopted
cantly in 2009 at the peak of the current economic crisis.
Resolution No 333 on a restructuring plan for SA
Although the company did not qualify at any point in
under which the Czech Government instructed the
time for insolvency proceedings under Czech national
Ministry of Industry and Trade to implement the
law, it experienced a clearly negative trend in the devel
release of pledges over some of the collateral before
opment of its key financial indicators.

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EN
19.10.2012 Official
Journal
of
the
European
Union L
289/59
Table 2
SA's equity and registered capital, 2006-2008 (CZK thousand)
2006 2007 2008 2009
Equity 938
646 1
238
093 101
686 –
2
352
045
Registered capital 2
735
510 2
735
510 2
735
510 2
735
510
Source: Annual Reports of SA
Table 3
Changes in SA's finances (CZK thousand)
(thousands)
CZK
31.12.2006 31.12.2007 31.3.2008 30.6.2008 31.12.2008 31.3.2009 30.6.2009 30.9.2009 31.12.2009
Profit/Loss –
396
951 206
600 [–
880
000
- [– 180 000 -
470 057 [–
1
320
000 [– 1 840 000 [– 2 625 000 – 3 756 125
– 800 000]
– 165 000]
-
-
-
– 1 190 000] – 1 660 000] – 2 365 000]
Turn
23 375 950 23
399
853 [4
625
000
- [10 175 000 22 581 692 [4
385
000
- [9 265 000 - [14 300 000 19 789 620
over ( 1 )
5 080 000]
-
4 820 000]
10 235 000]
-
11 250 000]
15 830 000]
Net cash – 533 192 –
275
234 [–
1
110
000 [– 640 000 - – 1 762 376 [–
1
230
000 [– 1 320 000
— –
3
066
694
flow from
-
– 580 000]
-
-
operations
– 1 000 000]
– 1 115 000] – 1 195 000]
Debt 6
476
911 4
391
070 [4
410
000
- [3 665 000
6 494 752 [5
685
000
- [5 550 000 - [6 290 000 -
6 581 325
4 890 000]
-
6 285 000]
6 065 000]
6 960 000]
4 065 000]
Net asset 11 679 439 10
161
647 [8
945
000
- [9 535 000
10 418 871 [8
340
000
- [8 990 000 - [8 470 000 -
7 948 571
value
9 855 000]
-
9 255 000]
9 920 000]
9 390 000]
10 065 000]
Source: Financial statements provided by SA
( 1 ) The turnover data within a financial year are cumulative.
(19) The
company
made
profits
in
2007
and
2008.
However,
Commission expressed doubts as to whether SA was
its business result deteriorated significantly in 2009. Its
already in difficulty within the meaning of the
turnover had diminished slightly over the previous four
Community guidelines on state aid for rescuing and
years, but cash flow was declining considerably. The level
restructuring firms in difficulty (‘the R&R Guidelines’) ( 1 )
of debt was more or less stable. The company was
at the time of receiving the loan.
offsetting its losses by the sale of assets, especially in
the 2009 financial year.
(22) In
addition,
the
Commission
expressed
doubts
as
to
(20) The situation of the company worsened in the course of
whether the conditions of the loan provided by Osinek
2009, in particular after the summer, which is tradi
to SA, taking into account its financial situation,
tionally a profitable period for SA.
conferred an economic advantage upon it which the
recipient undertaking would not have obtained under
normal market conditions. Furthermore, the Commission
questioned whether, if the loan did involve state aid, this
aid could be found compatible under the applicable state
aid rules, especially the Commission communication
2.5. The opening decision
Temporary Community Framework for state aid measures to
support access to finance in the current financial and economic
(21) On
24 February
2010 the Commission opened the
formal investigation procedure. In its decision the
( 1 ) OJ C 244, 1.10.2004, p. 2.

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L 289/60
EN
Official Journal of the European Union
19.10.2012
crisis (‘the Temporary Framework’) ( 1 ). If the Osinek loan
time when the Osinek loan agreement was signed.
was found to involve state aid, the measure would have
However, the Czech Republic refers to a report of
detrimental effects on competition, i.e. to companies
27 April 2009 written by EBC according to which
operating routes from Prague Ruzyně airport or
SA was solvent and creditworthy.
competing with SA and its subsidiaries in other
markets.
(28) The
Czech
Republic
reiterates
that
for
the
purposes
of
3. COMMENTS FROM THE CZECH REPUBLIC
securing the loan SA was required to provide collateral
amounting to at least 110 % of the loan for its entire
(23) In reply to the opening decision, the Czech Republic
duration. Thus, the amount of the loan actually granted
submitted comments in which it argued that the
to SA was not at any time to exceed 90 % of the value
Osinek loan met the ‘market economy investor principle’
of all the collateral. The Czech Republic confirmed that
test because it did not provide SA with undue
this requirement was met in all cases and submitted
economic benefits.
appraisal reports of assets that were used as collateral
for the loan.
(24) In particular, the Czech Republic is of the opinion that
on the date of signing the Osinek loan agreement, SA
was not a firm in difficulty and only became a firm in
(29) In
addition,
the
Czech
Republic
argues
that
the
liquidator
difficulty as late as August 2009. The Czech Republic
of Osinek, in view of the fact that Osinek had a
argues that despite its growing problems SA has
considerable amount of available financial resources,
always been able to secure its viability. However, the
sought investment opportunities to generate a return.
situation changed in late 2008 and early 2009 and
Before entering into the Osinek loan agreement, the
continued to deteriorate throughout the year due to the
liquidator commissioned the independent consulting
global economic recession, which had a severe impact on
company, EBC and the law firm JUDr. Jií Rybá &
the world transport markets (
JUDr. Pavel trbík to draw up an economic and legal

2 ). This, combined with
destabilised oil markets and currency fluctuations,
analysis of the loan offer. The analysis by EBC
contributed to the deterioration of SA's financial
confirmed that SA could be considered solvent and
condition.
that the risk that lending to SA might cause loss or
harm to Osinek was minimal. Based on this analysis, the
liquidator decided that lending to SA would be an
advantageous means of depositing Osinek's available
(25) In
the
course
of
2009
SA relied on forecasts based on
financial resources.
previous years' results and expected significantly better
results in the summer season. None the less, the first
half of 2009 results reported to management in mid-
August showed a substantial decline in SA's average
revenue for June. In August 2009 it became clear to
(30) Additionally,
the
Czech
Republic
argues
that,
even
if
the
Commission found that the terms of the Osinek loan
management that the company was no longer able to
were more favourable than those offered in the market,
operate without immediate cost-cutting measures and
then the loan would be compatible with the conditions
financial assistance from external sources.
laid down in the Temporary Framework.
(26) In relation to the possible state aid element in the Osinek
loan, the Czech Republic maintains that the interest rate
4. COMMENTS FROM INTERESTED PARTIES
meets the requirements of the communication from the
Commission on the revision of the method for setting
(31) During the formal investigation procedure the
the reference and discount rates (‘the Reference Rate
Commission received comments from three interested
Communication’) ( 3 ). In particular, the Czech Republic
third parties and from the beneficiary of the measure
submits that it was appropriate to use the three-month
under investigation, SA (paragraph 4).
PRIBOR rate as the base rate to determine the interest of
the loan in question given the volatility of the financial
markets at the time of signing the Osinek loan
agreement.
(32) SA's comments reflect in essence the Czech Republic's
comments on the opening decision set out above. SA
reiterates that the Osinek loan was granted on market
(27) SA is not assessed according to rating systems, so the
terms, since Osinek acted as a rational operator in a
Czech Republic is unable to provide evidence for its
market economy motivated by commercial rather than
assumption that SA qualified for a B rating at the
economic or social policy objectives. Moreover, SA
comments on the quantification of the possible aid
element, should the Commission conclude that the
( 1 ) OJ C 83, 7.4.2009, p. 1.
Osinek loan was granted at an advantageous interest
( 2 ) In 2009 the Czech market experienced a 6 % drop in passenger
traffic at Prague Ruzyně airport.
rate, i.e., assuming that SA's rating were worse than
( 3 ) OJ C 14, 19.1.2008, p. 6.
‘B’ and/or the collateral were not be classified as ‘high’.

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EN
19.10.2012 Official
Journal
of
the
European
Union L
289/61
(33) All
of
the
interested
third
parties
are
competitors
of
SA
the Osinek loan was granted on market terms and in
and are represented by the same law firm; therefore, their
accordance with the Reference Rate Communication.
reasoning is identical to some extent. The interested third
Furthermore, the Czech authorities argue that SA was
parties argue that the Osinek loan provided SA with
able to operate without state aid until the second half of
state aid which enabled the company to compete
2009. The condition of SA's assets was not seriously
unfairly by charging prices which the other competitors
impaired even in the first half of 2009, and its value
who have not received any state subsidies cannot offer
actually increased from CZK [8 340-9 255] million in
without losing the capacity to cover their costs and
the first quarter of 2009 to CZK [8 990-9 920] million
generate a reasonable profit ( 1 ).
in the second quarter of 2009.
(37) The
Czech
Republic
notes
that,
although
SA publishes
the results of its operations compiled in accordance with
both Czech Accounting Standards (‘CAS’) and Inter
(34) The
interested
third
parties
argue
that
SA was in severe
national Financial Reporting Standards (‘IFRS’), the
difficulties already before 1 July 2008. Furthermore, they
interested third parties based their comments solely on
argue that the Osinek loan was provided at a substan
results compiled in accordance with CAS, the
tially lower interest rate than what a bank would require
methodology of which does not provide a true picture
under similar circumstances, considering the financial
of the company's operations. Accounts compiled in
situation of SA, the length of repayment, the quality
accordance with IFRS provide better information about
of the collateral and the low probability of actual
the company's financial condition and are therefore more
repayment. In such circumstances, the Osinek loan
appropriate. SA is using CAS because of its obligation
would constitute illegal state aid incompatible with EU
under Czech tax laws. However, SA's activities are not
rules. One competitor who provided comments claims
limited to the Czech Republic but are global, which is
that SA fulfilled the condition that more than half of
why SA has been using IFRS as well. The Czech
its registered capital had disappeared in 2007, 2008 and
Republic points out that IFRS are applied by banks in
2009. Moreover, in the years 2008 and 2009, more than
their lending decisions because they are considered to be
one quarter of the registered capital of SA had
more precise than CAS.
disappeared over the preceding 12 months. The same
competitor explains that it may be assumed from the
decrease of registered capital of SA in 2008 that
already on 1 July 2008 the company met both
(38) Finally,
the
Czech
Republic
provided
evidence
showing
conditions for a firm in difficulty within the meaning
that at the time when the Osinek loan was granted SA
of point 10(a) of the R&R Guidelines.
did not fulfil the conditions for insolvency under the

Czech Insolvency Act ( 2 ).
6. PRESENCE OF STATE AID
(35) The
interested
third
parties
further
claim
that
due
to
the
(39) By
virtue
of
Article
107(1)
TFEU,
any
aid
granted
by
a
negative operating cash flow, the plurality of creditors
Member State or through state resources in any form
and the existence of financial obligations due and
whatsoever, which distorts or threatens to distort
payable within 30 days, it may be assumed that the
competition by favouring certain undertakings or the
company suffered from impending insolvency from the
production of certain goods, shall, in so far as it affects
end of the year 2007 and should, therefore, qualify as a
trade between Member States, be incompatible with the
firm in difficulty since 2007 (pursuant to point 10(c) of
internal market.
the R&R Guidelines).
(40) The
criteria
laid
down
in
Article
107(1)
TFEU
are
cumu
lative. Therefore, in order to determine whether the
notified measures constitute state aid within the
meaning of Article 107(1) TFEU all of the following
5. COMMENTS FROM THE CZECH REPUBLIC ON THE
conditions must be fulfilled. The financial support
OBSERVATIONS OF INTERESTED PARTIES
would have to:
(36) The
Czech
Republic
disagreed
with
the
comments
of
the
interested third parties and agreed with the comments of
— be granted by the State or through state resources;
SA. The Czech Republic maintained its argument that
( 1 ) Additional comments made by the interested third parties
— confer an economic advantage on the recipient;
concerning: (i) the capitalisation of the Osinek loan via the debt-
for-equity swap; (ii) the alleged payment of remuneration of the
Chairman of the Board of Directors and of the President of SA
by the state-owned Prague Ruzyně airport, and (iii) transfers of
— favour certain undertakings or the production of
property of SA to the state-owned Prague Ruzyně airport with
certain goods;
the subsequent lease-back to CSA, do not relate to this case and
will be analysed in the final decision in Case SA.30908 SA —
Czech Airlines — Restructuring plan.
( 2 ) Act No 182/2006

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Official Journal of the European Union
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— distort or threaten to distort competition; and
(45) The
Commission notes that the majority of Osinek
Supervisory Board members are representatives of
public authorities (such as the Ministry of Finance).
— affect trade between Member States.
(46) Osinek
went
into
liquidation
on
5
November
2008
by
6.1. State resources and imputability
virtue of the decision of its sole shareholder of the same
(41) The
concept
of
state
aid
applies
to
any
advantage
granted
date. Although, under Czech law, the liquidator has to
directly or indirectly, financed out of state resources,
act on his/her own and without instructions from the
granted by the State itself or by any intermediary body
company's bodies during the liquidation process, the
acting by virtue of powers conferred on it.
Commission further notes that the liquidator was
appointed by the Ministry of Finance of the Czech
Republic acting as the sole shareholder of Osinek.
(42) Therefore,
it
has
to
be
established,
first,
whether
the
Osinek loan must be regarded as state resources. As
mentioned above, Osinek was, at the time when the
(47) In
addition,
the
Czech
authorities
have
provided
the
loan was granted, 100 %-owned by the Ministry of
Commission with expert opinions from JUDr. Jií Rybá
Finance of the Czech Republic and, for this reason, irre
and JUDr. Pavel trbík which recommended that before
spective of its corporate or any other legal status, it is a
taking the decision to grant a loan to SA the liquidator
public undertaking within the meaning of Article 2(b) of
of Osinek should consult Osinek's shareholder, i.e. the
Commission Directive 2006/111/EC of 16 November
Czech Republic.
2006 on the transparency of financial relations
between Member States and public undertakings as well
as financial transparency within certain undertakings ( 1 ).
(48) As regards the supervision of the activities of Osinek by
Thus, the Commission considers that the Osinek loan is
the State, the Commission further observes that the
financed from state resources.
Czech Government subsequently also took the decision
to decollateralise the Osinek loan and swap the debt for
SA's equity by Resolution No 333.
(43) However,
the
Court
of
Justice
has
also
ruled
that,
even
if
the State is in a position to control a public undertaking
and to exercise a dominant influence over its operations,
(49) Therefore, the Commission concludes that the decision to
actual exercise of that control in a particular case cannot
grant the Osinek loan is imputable to the Czech State.
be automatically presumed. A public undertaking may
The Osinek loan must, therefore, be regarded as being
act with more or less independence, according to the
financed from state resources.
degree of autonomy left to it by the State. Therefore,
the mere fact that a public undertaking is under state
control is not sufficient for measures taken by that
6.2. Economic advantage
undertaking, such as the loan agreement in question, to
be considered imputable to the State. It is also necessary
(50) The
Commission
notes
that,
according
to
well-established
to examine whether the public authorities must be
principles of EU law, if additional capital is made
regarded as having been involved, in some way or
available by the State to an undertaking on conditions
other, in the adoption of this measure. On that point,
better than normal market conditions, this could fall
the Court indicated that the imputability to the State of a
within the scope of Article 107(1) TFEU, as it would
measure taken by a public undertaking may be inferred
result in favouring the particular undertaking within the
from a set of indicators arising from the circumstances of
meaning of that Article. In order to determine whether
the case and the context in which that measure was
an undertaking has been granted an economic advantage
taken (
by the State which it would not have obtained under

2 ).
normal market conditions, the Commission applies the
‘market economy investor principle’ (‘the MEIP’) ( 3 ).
(44) Such indicators can be the integration of the undertaking
into the structures of the public administration, the
nature of its activities and the exercise of the latter on
(51) According
to that principle, no state aid would be
the market in normal conditions of competition with
involved where, in similar circumstances, a private
private operators, the legal status of the undertaking (in
investor of a comparable size to that of the bodies
the sense of its being subject to public law or ordinary
operating in the public sector could, while operating in
company law), the intensity of the supervision exercised
normal market conditions of a market economy, have
by the public authorities over the management of the
been prompted to make the capital contribution in
undertaking, or any other indicator showing, in the
question. The Commission must therefore assess
particular case, an involvement by the public authorities
whether a private investor would have entered into the
in the adoption of a measure or the unlikelihood of their
transaction in question on the same terms. The projected
not being involved, having regard also to the scope of
behaviour of the hypothetical private investor is that of a
the measure, its content or the conditions which it
prudent investor whose goal of profit maximisation is
contains.
tempered by caution about the level of risk acceptable
for a given rate of return. According to this principle,
( 1 ) OJ L 318, 17.11.2006, p. 17.
( 2 ) Case C-482/99 France v Commission (‘Stardust Marine’) [2002] ECR I-
( 3 ) Joined Cases T-228/99 and T-233/99 Westdeutsche Landesbank GZ v
4397, paragraphs 52 and 57.
Commission [2003] ECR II-435, paragraph 251.

---

EN
19.10.2012 Official
Journal
of
the
European
Union L
289/63
capital put at the disposal of a company by the State,
business relations with SA on their internal rating for
directly or indirectly, in circumstances which correspond
SA in the first six months of 2009, the changes of the
to the normal conditions of the market, should not be
internal rating for SA between July 2008 and July
regarded as state aid ( 1 ).
2009, the conditions of loans which were granted to
SA in the first six months of 2009, and other
comments concerning SA's creditworthiness in the
(52) According to established case law, the MEIP is applicable
first six months of 2009. Three private banks provided
to loans. When applied to the grant of a loan, this
information on the condition that the information would
principle raises the question of whether a private
be held in confidence, would be used only for the
investor would have granted the loan to the beneficiary
Commission's internal assessment and would not be
on the terms on which it was actually granted (
disclosed to any third party, including SA and the

2 ). In this
respect, the Commission assesses whether the loan is
Czech authorities.
made on normal commercial terms and whether such
loans would have been available from a commercial
bank. With regard to the terms of such loans, the
Commission takes into account in particular both the
(57) Although
all
of
these
banks
acknowledged
the
worsening
interest rate charged and the security sought to cover
of SA's financial situation in early 2009, working
the loan. The Commission assesses whether the security
capital loans and credit facilities were provided to SA
given is sufficient to repay the loan in full in the event of
during the first half of 2009. The internal rating for SA
default and the financial position of the company at the
of the three private banks corresponds roughly to a B
time when the loan is made ( 3 ).
rating.
(53) The
Commission notes that SA is a legal person
engaged in economic activities and is therefore
(58) The
Commission notes that the banks' answers are
regarded as an undertaking within the meaning of
consistent and sound. Although the internal ranking of
Article 107 TFEU. In order to determine whether the
the company deteriorated, the downgrading does not
Osinek loan was granted on favourable conditions or
seem significant enough to justify a higher risk margin.
on market conditions, the Commission verified the
compliance of the interest rate for the loan in question
with the Commission reference rate as laid down in the
Reference Rate Communication, which is applied as a
(59) In
addition,
the
Commission
observes
that,
as
already
proxy for the market rate.
indicated in the opening decision and based on the
information provided by the Czech Republic,
UniCreditBank provided a working capital, medium-
(54) As
regards
the
relevant
date
to
be
taken
into
account
term loan (4 years) of CZK 200 million to SA in
when comparing the interest rate of the loan in
September 2008, secured by a flight simulator. On
question with the reference rate, the Commission
25 June 2009, due to the deviation from the financial
already expressed its opinion in the opening decision
indicators agreed in the loan agreement, UniCreditBank
that this should be the date of the legally binding act
increased the risk margin for the SA loan from 160
according to which the loan was granted, i.e. 30 April
basis points (agreed in September 2008) to 325 basis
2009 (date of conclusion of the loan agreement between
points above the one-month PRIBOR (i.e. an interest
Osinek and SA).
rate of 5,10 % p.a. on 25 June 2009). The Commission
notes that this interest rate, which reflected the recent
worsening of SA's financial situation, is below the
interest rate of the Osinek loan (5,51 % p.a.) and
(55) The
Czech
Republic
claims
that,
at
that
time,
SA still
corresponds approximately to a reference rate for a
had access to external financing by private banks and
company with a B rating (with high collateralisation).
became a firm in difficulties only in August 2009. In

early 2009 SA's creditworthiness corresponded to
rating category B.
(60) In
view
of
the
above,
it
can
be
concluded
that,
in
prin
ciple, SA had access to external financing at the time
(56) In order to verify the claims of the Czech Republic, the
the Osinek loan was granted and that SA's creditwor
Commission consulted several private banks having
thiness in the first half of 2009 corresponded to a B
rating.
( 1 ) Commission Communication to the Member States Application of
Articles 92 and 93 of the EEC Treaty and of Article 5 of Commission
Directive 80/723/CEE to public undertakings in the manufacturing sector,
OJ C 307, 13.11.1993, p. 3, point 11. The Communication deals
with the manufacturing sector, but is applicable to other economic
(61) The collateral used to secure the loan comprised
sectors. Cf. Case T-16/96 Cityflyer [1998] ECR II-757, paragraph 51.
buildings located at Prague Ruzyně Airport, land, inven
( 2 ) See Case T-16/96 Cityflyer Express Ltd v Commission [1998] ECR II-
tories and spare parts. The market value of the collateral
757, paragraphs 45 and 46.
was established by independent experts from the Czech
( 3 ) See Communication on the application of Articles 92 and 93 of the
EC Treaty and Article 61 of the EEA Agreement to state aid in the
Republic, who are registered either in the Register of
aviation sector, OJ C 350, 10.12.1994, p. 5.
Expert Institutes or the Central Register of Authorised

---

L 289/64
EN
Official Journal of the European Union
19.10.2012
Experts maintained by the Czech Ministry of Justice and
for the Osinek loan. For one type of collateral (the spare
have experience in the field of the evaluation of assets ( 1 ).
parts), the value was based on their net book value. The
Commission considers that this valuation method is
(62) The
Commission
notes
that
the
date
of
the
appraisal
appropriate for this type of asset given that spare parts
report for the collateral Hangar F (see Table 1) is
can easily be traded and their value should therefore
1 June 2009, whereas the first tranche of the Osinek
correspond to their original acquisition cost less
loan was paid on 11 May 2009. The Czech authorities
accumulated depreciation.
have submitted a declaration by YBN Consult, dated
6 May 2009, which confirms the value of the collateral
used. Such a declaration is in line with paragraph 5.9.11
of the Osinek loan agreement provided that the complete
(64) The loan agreement stipulated that the actual loan
appraisal report is submitted within one month from the
amount must not exceed 90 % of the value of the
date of payment of the first tranche. The Commission
collateral, i.e. the value of the collateral must be at
notes that this condition was fulfilled.
least equal to 110 % of the loan amount. Based on the
submitted information, at the time when the first tranche
was granted in May 2009, the value of the original
(63) Furthermore,
the
Commission
has
critically
evaluated
the
collateral as agreed in the loan agreement of 30 April
submitted appraisal reports. The evaluations give no
2009 was at least [110-117] %; at the time when the
cause for concern since no manifest errors have been
second tranche was granted in July 2009 at least [120-
detected, accepted methodologies are applied and the
132] %; and at the time when the third tranche was
evaluations are based on credible assumptions. Therefore,
granted in September 2009 at least [128-141] %. In
the Commission considers that the results of the present
addition, by several addendums to the Osinek loan
appraisal reports are an appropriate approximation for
agreement (see recital 8) additional collateral assets
the realistic market prices of the assets used as collateral
were added and some assets were released.
Table 4
Overview of collateralisation at different time periods of the Osinek loan
Date of change
Amount drawn
(CZK million)
Value of collateral (CZK million) %
level
of
collateral
11 May 2009 800 [880-935] [110-117]
%
23 July 2009 800 [1
350
-
1
485] [169-186]
%
30 July 2009 1
700 [2
040
-
2
240] [120-132]
%
22 September 2009 1
700 [2
485
-
2
760] [146-162]
%
24 September 2009 2
500 [3
190
-
3
535] [128-141]
%
9 December 2009 2
500 [3
275
-
3
615] [131-145]
%
25 January 2010 2
500 [3
310
-
3
640] [132-146]
%
(65) The
Reference
Rate
Communication
assumes
that
‘high’
margin of 220 basis points reflects a B rating as
collateralisation implies a loss given default below or
confirmed by the private banks and the high collaterali
equal to 30 %, which corresponds to a value of the
sation described above.
collateral of at least 70 % of the loan amount. The
Commission notes that the collateralisation provided
for the loan is significantly higher, which creates an
important safety margin as regards any possible
(67) That
rate
is
lower
than
the
applied
interest
rate
for
the
deviation in the estimates of the value of the collateral.
Osinek loan (three-month PRIBOR ( 2 ) + 300 basis
points), which on 30 April 2009 came to 5,51 % p.a.
(66) The
appropriate
interest
rate
following
the
Reference
Rate
(68) An
analysis
of
the
applied
rate
(three-month
PRIBOR
Communication at that time would be 5,16 % p.a. (base
plus 300 basis points) and the reference rate plus a
rate 2,96 % + 220 basis points = 5,16 % p.a.). The
margin of 220 basis points shows that these rates are
comparable in terms of the methodology of the base as
well as of the overall level of the applied rates, including
( 1 ) YBN Consult — Znaleck ústav, s.r.o. is an expert institute qualified
the relevant risk margin.
to provide expert advice in economics and the building industry.
PROSCON — s.r.o. is an expert institute qualified to provide expert
advice with respect to economics. Mr Vladimír mejla is an expert in
( 2 ) For the daily PRIBOR rates see http://www.cnb.cz/en/financial_
economics, patents and inventions.
markets/money_market/pribor/daily.jsp.

---

EN
19.10.2012 Official
Journal
of
the
European
Union L
289/65
(69) PRIBOR is the reference value of the interest rates on the
6.4. Distortion of competition and effect on trade
market of interbank deposits which is calculated (fixed)
from the quotations of the reference banks for the sale of
(75) With
regard
to
the
cumulative
criteria
of
state
aid,
in
the
deposits (i.e. offers) by the calculation agent for the
current case the effect on intra-EU trade and distortion of
Czech National Bank and for the Czech Forex Club
competition of the contested measure are indisputable
(Financial Markets Association of the Czech Republic
and were not even contested by the Czech authorities.
— A.C.I.) ( 1 ).
SA is in competition with other European Union
airlines, in particular since the entry into force of the
third stage of liberalisation of air transport (‘third
package’) on 1 January 1993. The measures in question
(70) The rate for the Osinek loan is based on PRIBOR
enabled SA to continue operating so that it did not
calculated for the maturity of 3 months. The reference
have to face, as other competitors did, the consequences
rate is based on one-year money market rates. However,
normally deriving from its poor financial results.
the Commission reserves the right to use shorter or
longer maturities adapted to certain cases.
6.5. Conclusion
(71) An
analysis
of
the
development
of
the
two
rates
during
(76) On the basis of the above, the Commission considers
the lifetime of the Osinek loan (April 2009 to June
that the measure does not involve any state aid to SA
2010) shows that the two rates are indeed comparable.
as the Osinek loan was provided under conditions that a
The average rates ( 2 ) for the period from April 2009 to
market economy investor would require. In particular,
June 2010 are nearly the same (4,77 % for the PRIBOR +
the interest rate at which the Osinek loan was granted
300 basis points; 4,79 % for the reference rate including
in conformity with the reference rate determined on the
a risk margin of 220 basis points). The small difference
basis of the Reference Rate Communication in view of
between two basis points is due to the different method
the fact that SA had a B rating at the time when the
of adjustment. PRIBOR is adjusted on a daily basis; the
loan was granted, which was confirmed by private banks
reference rate is adjusted only every few months.
and the loan was secured the whole time by collaterali
sation significantly higher than the 70 % of the loan
amount stipulated in the Reference Rate Communication.
(72) Against
this
background,
the
applied
interest
rate
can
be
accepted as an appropriate proxy for a market rate. On
the basis of the Reference Rate Communication, the
measure is in line with the market and does not,
7. COMPATIBILITY OF THE AID WITH THE INTERNAL
therefore, involve an economic advantage to SA.
MARKET
(77) The
Commission
nevertheless
also
analysed
whether,
if
the loan were considered to involve state aid, the
(73) Finally,
the
Commission
notes
that
the
payments
of
measure would be compatible with the internal market
interest by SA to the creditor were executed in full
under Article 107(3)(b) TFEU, on the basis of the
compliance with the terms of the Osinek loan agree
Temporary Framework.
ment ( 3 ).
(78) The Osinek loan was granted in 2009. The measure aims
6.3. Selectivity
therefore at facilitating the access of a firm to external
(74) Article
107(1)
TFEU
requires
that
a
measure,
in
order
to
finance at a period of time when the normal functioning
be defined as state aid, must favour ‘certain undertakings
of credit markets is severely disturbed because of the
or the production of certain goods’. In the case at issue,
financial crisis and when the financial crisis (‘credit
the Commission notes that the Osinek loan was granted
crunch’) is affecting the wider economy and leading to
to SA only. Thus, it is selective within the meaning of
severe disturbances of the economy of Member States.
Article 107(1) TFEU.
( 1 ) For the methodology of the PRIBOR see http://www.cnb.cz/docs/
ARADY/MET_LIST/prib_en.pdf.
(79) On
17
December
2008
the
Commission
addressed
this
( 2 ) The average rates are derived from the arithmetic mean of the
crisis by adopting the Temporary Framework. In it the
monthly three-month PRIBOR averages plus 300 basis points
according to the Czech National Bank and the relevant reference
Commission acknowledged the ‘seriousness of the
rates plus 220 basis points between April 2009 and June 2010
current financial crisis and its impact on the overall
(for the relevant data see the tables at http://www.cnb.cz/en/
economy of the Member States’. The Commission
financial_markets/money_market/pribor/averages_form.jsp and
further concluded ‘that certain categories of state aid
http://ec.europa.eu/competition/state_aid/legislation/reference_rates.
are justified, for a limited period, to remedy these
html).).
difficulties and that they may be declared compatible
( 3 ) Interest was duly paid for five consecutive calendar quarters and on
one occasion a contractual penalty was charged for two day's delay
with the common market on the basis of
in payment.
Article 107(3)(b) TFEU.’

---

L 289/66
EN
Official Journal of the European Union
19.10.2012
7.1. Compliance with Section 4.4.2 of the
Contract concluded before 31 December 2010
Temporary Framework
(86) First, the contract must have been concluded by
(80) The
measure
must
be
assessed
against
the
requirements
31 December 2010 at the latest. The reduced interest
of Section 4.4.2 of the Temporary Framework (‘Aid in
rates may be applied to interest payments before
the form of subsidised interest rate’).
31 December 2012.
Compliance of the interest rate applied
(87) The
Osinek
loan
agreement
was
concluded
on
30
April
(81) According
to
the
Temporary
Framework,
the
interest
rate
2009. The loan was supposed to be paid back in one
applied must be at least equal to the central bank
single payment on 30 November 2010. The loan
overnight rate plus a premium equal to the difference
contract therefore fulfils the first condition.
between the average one-year interbank rate and the
average of the central bank overnight rate over the
period 1 January 2007 to 30 June 2008, plus the
Not a firm in difficulty on 1 July 2008
credit risk premium corresponding to the risk profile of
the recipient, as stipulated by the Reference Rate
(88) Second,
the
beneficiary
must
not
have
been
in
difficulty
Communication.
on 1 July 2008.
(82) The
overnight
rate
for
the
Czech
Republic
on
30
April
2009 was 1,45 % ( 1 ). The difference between the average
(89) Point
9
of
the
R&R
Guidelines
states
that
there
is
no
EU
one-year interbank rate and the average of the central
definition of what constitutes a firm in difficulty and
bank overnight rate over the period from 1 January
adds that the Commission regards a firm as being in
2007 to 30 June 2008 was 68 basis points.
difficulty where it is unable, whether through its own
resources or with the funds it is able to obtain from
its owners/shareholders or creditors, to stem losses
(83) The credit risk premium corresponding to the risk profile
which, without outside intervention by the public auth
of the recipient was 220 basis points. This premium is
orities, will almost certainly condemn it to going out of
based on a B rating (see recital 57) and a high level of
business in the short or medium term.
collateralisation given the collateral offered (see recitals
64 and 65).
(90) Subsequently,
point
10(b)
of
the
R&R
Guidelines
clarifies
that a firm is regarded as being in difficulty, in the case
(84) Under
the
Temporary
Framework
the
minimum
rate
of a company where at least some members have
would therefore be 4,33
% (1,45
% + 0,68
% +
unlimited liability for the debt of the company, where
2,20 %). The actual rate for the Osinek loan was
more than half of its registered capital has disappeared
5,51 %. As a result, the Osinek loan was granted at a
and more than one quarter of that capital has been lost
rate higher than the minimum allowed under the
over the preceding 12 months.
Temporary Framework.
(85) Furthermore, Section 4.4 of the Temporary Framework
(91) In
2008
SA's registered capital totalled CZK 2 735
requires two additional conditions to be fulfilled for a
million. Based on the CAS standard, the company's
loan to be considered to be compatible aid:
equity fell to CZK 101 million in the same year.
Table 5
Equity and registered capital in 2007 and 2008 (CZK thousand)
2007 6/07 7/07 8/07 9/07 10/07 11/07 12/07
Equity [1
035
000
-
[1 415 000 - [1 450 000 - [1 410 000 - [1 950 000 - [1 260 000 -
1 238 093
1 140 000]
1 555 000]
1 595 000]
1 565 000]
2 145 000]
1 390 000]
Registered capital 2
735
510 2
735
510 2
735
510 2
735
510 2
735
510 2
735
510 2
735
510
( 1 ) CZEONIA (Czech Over Night Index Average) is defined as the
weighted average of the interest rates of all unsecured O/N
deposits placed by reference banks on the interbank market. It is
calculated and published by the Czech National Bank (http://www.
cnb.cz/en/financial_markets/money_market/czeonia/daily.jsp).

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EN
19.10.2012 Official
Journal
of
the
European
Union L
289/67
2008 1/08 2/08 3/08 4/08 5/08 6/08
Equity [585
000
-
[385 000 -
[110 000 -
[690 000 -
[860 000 -
[965 000 -
645 000]
420 000]
120 000]
755 000]
950 000]
1 065 000]
Registered capital 2
735
510 2
735
510 2
735
510 2
735
510 2
735
510 2
735
510
7/08 8/08 9/08 10/08 11/08 12/08
Equity [945
000
-
[1 220 000 -
[1 270 000 -
[1 295 000 -
[610 000 -
101 686
1 030 000]
1 340 000]
1 410 000]
1 430 000]
670 000]
Registered capital 2
735
510 2
735
510 2
735
510 2
735
510 2
735
510 2
735
510
Source: Financial statements provided by SA
(92) Although more than half of the registered capital of the
six months. Finally, the value of the assets fluctuated over
company had already disappeared on 1 July 2008, the
the observed period without any clear trend.
second condition of point 10(a) of the R&R Guidelines
— that more than one quarter of the registered capital
must have been lost over the preceding 12 months — is
not fulfilled. The equity lost between June 2007 and July
(97) In conclusion, the trend in the financial criteria as set out
2008 (CZK [31 570 000-34 875 000]) corresponds to
in point 11 of the R&R Guidelines does not clearly point
only [0,8-1,5] % of the registered capital.
to all the usual signs of a firm being in difficulty before
30 June 2008. Furthermore, SA still had access to
finance at that time, as demonstrated by the fact that it
was able to obtain a loan from a private bank in
(93) Furthermore, point 10(c) of the R&R Guidelines
September 2008 (see recital 59).
considers a company to be in difficulty where it fulfils
the criteria under its domestic law for being the subject
of collective insolvency proceedings. The Czech auth
orities confirmed that SA was not eligible for
(98) The
Commission
observes
that
aid
compatible
under
insolvency proceedings under paragraph 3 of the Czech
Section 4.4 of the Temporary Framework may be
Insolvency Act.
granted to firms that were not in difficulty on 1 July
2008 but entered into difficulty thereafter as a result of
the global financial and economic crisis. Therefore, the
fact that SA became a firm in difficulty at a later date is
(94) According
to
point
11
of
the
R&R
Guidelines,
even
when
without prejudice to the compatibility under the
none of the circumstances set out in point 10 of those
Temporary Framework.
Guidelines are present, a firm may still be considered to
be in difficulties, in particular where the usual signs of a
firm being in difficulty are present, such as increasing
losses, diminishing turnover, growing stock inventories,
(99) Consequently,
the
Commission
considers
that
SA was
excess capacity, declining cash flow, mounting debt,
not a firm in difficulty on 1 July 2008 and that it was
rising interest charges and falling or nil net asset value.
therefore eligible for the application of the Temporary
Framework.
(95) The
changes
in
SA's financial results during the relevant
period did not show a clear negative trend (see Table 3).
7.2. Conclusion
The company made a loss at the end of 2006, but
(100) In view of the above, the Osinek loan fulfils all the
recuperated and showed a positive result for 2007. A
conditions outlined in Section 4.4 of the Temporary
loss of CZK [800-880] million was subsequently
Framework. Therefore, even if the Osinek loan were
recorded at the end of the first quarter of 2008.
deemed to involve state aid, the measure would still be
However, the situation improved by the end of the
compatible with the internal market under
second quarter, i.e. by 30 June 2008. A similar trend
Article 107(3)(b) TFEU.
can be observed in the cash-flow situation. SA's
turnover diminished slowly on a yearly basis over the
observed period. However, it cannot be concluded that
the turnover diminished significantly before 30 June
8. CONCLUSION
2008.
(101) The Commission concludes that the Osinek loan does
not involve any state aid. Moreover, even if the Osinek
loan were deemed to involve state aid, the measure
(96) The
debt
of
the
company
was
reduced
between
March
would still be compatible with the internal market
2008 and June 2008, and then increased in the following
under Article 107(3)(b) TFEU.

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L 289/68
EN
Official Journal of the European Union
19.10.2012
(102) This Decision does not cover the decollateralisation and
of the European Union and, even if it did, it is compatible with
the capitalisation of the Osinek loan of 30 June 2010.
the internal market under Article 107(3)(b) of that Treaty.
The assessment of this measure will be the subject of the
final decision in Case SA.30908,
Article 2
This Decision is addressed to the Czech Republic.
HAS ADOPTED THIS DECISION:
Article 1
Done at Brussels, 21 March 2012.
The measure which the Czech Republic has implemented for
eské aerolinie, a. s. in the form of a loan totalling CZK 2,5
For the Commission
billion provided by Osinek a.s. on the basis of the loan
agreement of 30 April 2009 does not constitute aid within
Joaquín ALMUNIA
the meaning of Article 107(1) of the Treaty on the Functioning
Vice-President

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Document Outline

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