HTML PUBLIC "-//W3C//DTD HTML 4.01 Transitional//EN"L 150/78
EN
Official Journal of the European Union
9.6.2012
DECISIONS
COMMISSION DECISION
of 8 February 2012
on State aid SA.28809 (C 29/10) (ex NN 42/10 and ex CP 194/09) implemented by Sweden in
favour of Hammar Nordic Plugg AB
(notified under document C(2012) 546)
(Only the Swedish text is authentic)
(Text with EEA relevance)
(2012/293/EU)
THE EUROPEAN COMMISSION,
decision to initiate the procedure (‘the opening decision’)
was published in the Official Journal of the European
Having regard to the Treaty on the Functioning of the European
Union ( 3 ). The Commission invited interested parties to
Union, and in particular the first subparagraph of Article 108(2)
submit their comments on the aid.
thereof,
Having regard to the Agreement on the European Economic
(6) By
letter
dated
23
November
2010,
Sweden
asked
for
an
Area, and in particular Article 62(1)(a) thereof,
extension of the deadline to submit comments on the
opening decision.
Having called on interested parties to submit their comments
pursuant to the provisions cited above ( 1 ), and having regard to
(7) By
letters
dated
15
and
17
December
2010,
the
Swedish
their comments,
authorities submitted their comments to the
Commission. Hammar Nordic Plugg AB submitted its
Whereas:
comments to the Commission by letter of 22 January
2011.
1. PROCEDURE
(1)
By letter dated 26 May 2009, registered on 16 June
(8)
On 1 February 2011, the Commission sent the obser
2009, the Commission received a complaint concerning
vations of Hammar Nordic Plugg AB to the Swedish
the alleged grant of State aid to Hammar Nordic Plugg
authorities for comments.
AB through the sale of public property below market
price by the Municipality of Vnersborg.
(9) On
1
June
2011,
the
Commission
sent
a
further
request
for information, to which Sweden replied by letter of
(2) On
27
October
2009,
the
Commission
forwarded
a
non-
29 June 2011 and sent further clarifications by emails
confidential version of the complaint to the national
of 12 September 2011 and 30 September 2011.
authorities. Sweden replied by letter of 30 November
2009, registered on the same day.
(10) On
6
June
2011,
the
Commission
sent
a
questionnaire
to
(3) On
9
March
2010,
the
Commission
requested
further
Chips AB, to which the company did not reply directly.
information and Sweden replied by letter dated
Some information was provided, however, by Chips AB
20 April 2010.
to the Swedish authorities, which incorporated this
information into their abovementioned comments of
(4) On
11
May
2010,
the
Commission
received
information
12 September 2011.
submitted by Chips AB.
(11) On
19
October
2011,
a
meeting
took
place
between
the
(5) By
means
of
the
letter
dated
27
October
2010,
the
Commission services and representatives of Hammar
Commission notified Sweden that it had decided to
Nordic Plugg AB.
initiate the procedure laid down in Article 108(2) of
the Treaty on the Functioning of the European
Union ( 2 ) (TFEU) in respect of the aid. The Commission
(12) By
e-mail
of
3
November
2011,
Hammar
Nordic
Plugg
AB submitted additional information to the Commission.
( 1 ) OJ C 352, 23.12.2010, p. 22.
The Commission forwarded that information to the
( 2 ) With effect from 1 December 2009, Articles 87 and 88 of the EC
Swedish authorities for comments on 4 November
Treaty have become Articles 107 and 108, respectively, of the TFEU;
2011. Sweden confirmed on 28 November 2011 that
the two sets of provisions are, in substance, identical. For the
the authorities had no comments.
purposes of this Decision, references to Articles 107 and 108 of
the TFEU should be understood as references to Articles 87 and 88,
respectively, of the EC Treaty where appropriate.
( 3 ) See footnote 1.

---

EN
9.6.2012 Official
Journal
of
the
European
Union L
150/79
2. DESCRIPTION
tenancy agreement by which FABV let the whole Facility
to Hammar ( 7 ). The second agreement consisted of an
2.1 The beneficiary and the parties involved
option allowing Hammar to buy the Facility from
FABV for the set price of SEK 8 million (EUR 0,8 million)
(13) The
beneficiary
of
the
measure
is
Hammar
Nordic
Plugg
at any time between 1 March 2008 and 28 February
AB (‘Hammar’). It is a limited company whose business
2010. Hammar exercised its option and acquired the
consists of property rental and real estate management.
Facility from FABV for the set price on 11 August 2008.
The company is based in Trollhttan, in the province of
Vstra Gtaland (Sweden). Hammar is 100 % owned by
its parent company Hammar Nordic Fastigheter AB,
(22) By
agreement
of
1
March
2008,
Hammar
sub-let
most
of
which in turn is wholly owned by a private individual,
the Facility to local entrepreneurs at a rent ( 8 ) higher than
Anders Hammar ( 4 ).
the rent agreed between FABV and Hammar. In addition,
as a condition for signing the tenancy agreement, the
(14) The
Municipality
of
Vnersborg
(‘the
Municipality’)
is
local entrepreneurs demanded an option to purchase
situated in the province of Vstra Gtaland in Sweden,
the Facility in the future, should Hammar become
close to Norway. According to the Swedish Regional Aid
owner of the Facility. The option agreement was signed
map 2007-2013, the Municipality is not located in an
on that same date, giving the local entrepreneurs the
assisted area.
right to acquire the Facility for SEK 40 million (EUR
4 million).
(15) Fastighets AB Vnersborg (‘FABV’) is a real estate
company wholly owned by the Municipality.
(23) On 2 September 2008, a contract was concluded
between Hammar and the local entrepreneurs selling
(16) Topp
Livsmedel
(‘Topp’)
belonged
to
Chips
AB
( 5 ), a
the Facility to the latter for the agreed price of SEK
division of the international business group Orkla ASA
40 million.
(‘Orkla’).
3. THE OPENING DECISION
(17) The property subject to the measure (‘the Facility’)
comprises two plots of land, a production site,
(24) The
Commission
had
reasons
to
believe
that
the
FABV’s
movable property and intellectual property rights (e.g.
sale of the Facility to Hammar involved State aid. On
trademarks). It is located in Brlanda, a small
27 October 2010, therefore, the Commission opened
community in the Municipality. Until 2007, Topp
the formal investigation procedure on that transaction ( 9 ).
produced frozen vegetables in the Facility with about
30 employees.
(25) Sweden
and
Hammar
have
provided
comments
to
the
2.2 Overview of the measure
opening of the formal investigation procedure.

(18) By
letter
dated
26
May
2009,
the
Commission
received
a
complaint concerning an alleged grant of State aid
(26) Sweden is of the view that FABV’s sale of the Facility to
through the sale of public property (the Facility) below
Hammar does not constitute State aid. It maintains that
market price.
the sole objective of the Municipality when buying the
Facility through FABV was to secure continued
production and jobs. As it had no intention of running
(19) The
facts
are
as
follows.
At
the
end
of
2007,
Chips
AB
operations itself, the Municipality opted for the solution
announced that it would shut down production at Topp
proposed by Hammar, i.e. a lease with an option to buy.
and started the process of selling the Facility.
Sweden also notes that the option granted to Hammar
required a capital injection of SEK 9 million (EUR
(20) On
13 February
2008, the
Municipality
— through
0,9 million) from the Municipality’s budget to FABV, to
FABV — bought the Facility from Chips AB for SEK
provision for the loss that would arise if Hammar
17 million (EUR 1,7 million) (
exercised the option.

6 ).
(21) Also
on
13
February
2008,
FABV
entered
into
two
(27) Hammar
argues
that
FABV’s
purchase
of
the
Facility
from
agreements with Hammar. The first agreement was a
Chips AB was undertaken at an excessively high price
which could entail State aid to Orkla. In addition,
( 4 ) The property subject to this measure represents the company’s only
Hammar argues that its purchase of the Facility from
asset and business activity. For the sake of clarity, it must be noted
FABV was carried out on market terms and that the
that in the opening decision an independent company (Hammar
sale neither affected trade between Member States nor
Nordic AB), also owned by the same shareholder Mr Anders
distorted competition.
Hammar, was erroneously identified as the parent company of
Hammar Nordic Plugg AB.
( 5 ) Chips AB is a manufacturer of potato crisps based in Mariehamn,
( 7 ) The annual rent payable for years 1–5 was set at SEK 500 000, SEK
land, Finland, active in the Nordic and Baltic countries, with a
650 000, SEK 800 000, SEK 950 000 and SEK 1 100 000, respect
consolidated turnover of approximately SEK 2,6 billion per year
ively.
and around 800 employees. In 2005, Chips AB was acquired by
( 8 ) The annual rental payable for years 1 to 6 was set at SEK
the Norwegian group Orkla ASA.
3 500 000, SEK 3 500 000, SEK 7 000 000, SEK 7 000 000, SEK
( 6 ) The average exchange rate for 2008 is SEK/EUR 9,62. The amounts
10 500 000 and SEK 10 500 000, respectively.
in euro in this decision are purely indicative.
( 9 ) See footnote 1.

---

L 150/80
EN
Official Journal of the European Union
9.6.2012
(28) In
order
to
support
its
allegations,
Hammar
provided
an
or the production of certain goods shall, in so far as it
ex post assessment of the value of the Facility dated
affects trade between Member States, be incompatible
20 January 2011, prepared by PricewaterhouseCoopers
with the internal market’.
(‘the PwC report’). That report maintains that the
degree of uncertainty when estimating the market price
of this type of property is so great that the price could be
said to have been close to market terms each time the
Facility was sold (i.e. FABV’s purchase from Chips AB, the
(32) The Commission notes that the beneficiary of the
subsequent sale to Hammar and finally Hammar’s sale to
measure, i.e. Hammar, qualifies as an undertaking since
the local entrepreneurs). In particular, in relation to
it pursues economic activities, offering real estate and
FABV’s sale to Hammar and to the subsequent sale to
real-estate-related services on the market.
local entrepreneurs, the PwC report considers that the
prices paid were market-conform, given the financial
conditions in the two tenancy agreements (i.e. between
FABV and Hammar on the one hand and between
Hammar and the local entrepreneurs on the other).
(33) The transaction was concluded by the Municipality
through FABV. FABV is wholly owned by the Munici
pality, which covers FAVB’s potential losses from its
normal budget. FABV’s board is made up of members
taken from the Municipality’s ruling body. Thus, the
(29) At the meeting with the Commission services on
decisions of FABV are imputable to the State and, to
19 October 2011 and in its submission to the
the extent that they have financial implications, they
Commission of additional information of 3 November
imply the use of State resources. Moreover, the Munici
2011, Hammar argued that, at the time the Municipality
pality was clearly involved in this operation, as the
and Hammar agreed to give the latter an option to
option granted to Hammar required a capital injection
acquire the Facility for SEK 8 million, there were no
of SEK 9 million from the Municipality to FABV to
other bids for the Facility and thus this price should be
provision for the loss that would arise if Hammar
considered the market price, irrespective of any valu
exercised the option. In this respect, the Commission
ations which are necessarily hypothetical.
concludes that the sale of the Facility to Hammar
involved State resources.
(30) On
3
November
2011,
Hammar
submitted
a
report
to
the Commission prepared by Copenhagen Economics
(34) Since
the
transaction
benefited
a
specific
undertaking
(i.e.
A/S (
Hammar), it has to be considered a selective measure.

10 ) (‘Copenhagen Economics’) concerning the
possible effect on trade between Member States of both
FABV’s purchase of the Facility from Chips AB and the
subsequent sale of the Facility to Hammar. The report
concludes that the first transaction had the potential to
(35) The
measure
distorts
or
has
the
potential
to
distort
affect intra-Union trade, because the seller Chips AB is an
competition and affect trade within the Union and the
international company — the Finnish subsidiary of the
European Economic Area (‘EEA trade’) within the
Norwegian group Orkla — that competes internationally.
meaning of the State aid case law of the Court of
By contrast, the report argues that FABV’s sale of the
Justice of the European Union. In order to maintain
Facility to Hammar had no or an insignificant effect on
that the selective advantage entailed in the sale of the
intra-Union trade, as Hammar operates only at local level
Facility to Hammar had no or an insignificant effect on
and does not encounter international competitors on the
trade, the report prepared by Copenhagen Economics
relevant market(s).
(see recital 30) argues that the real estate market in
which Hammar is active is purely local. However, the
potential effect on trade does not depend on whether a
particular aid recipient happens to be active inter
nationally or only nationally, but on whether the goods
4. ASSESSMENT OF THE MEASURE
or services in which he trades are or could be subject to
4.1. Existence of State aid
intra-Union trade (


11 ). That criterion is met in this case,
given that real estate and real-estate-related services are
(31) In order to assess whether FABV’s sale of the Facility to
subject to intra-Union trade and investment, a fact which,
Hammar entailed State aid, it needs to be assessed in the
in the present case, is substantiated by the fact that the
light of Article 107(1) TFEU, which provides that ‘any aid
previous owner of the Facility (Chips AB) is the Finnish-
granted by a Member State or through State resources in
based subsidiary of Orkla, a group with international
any form whatsoever which distorts or threatens to
operations. This constitutes evidence of cross-border
distort competition by favouring certain undertakings
interest in the asset in question, i.e. the Facility, which,
moreover, is not an empty plot of land but an oper
ational production facility for frozen foodstuffs.
( 10 ) Copenhagen Economics A/S is a consultancy firm. It provides
advisory services in the fields of competition, regulation, inter
national trade, impact assessment and regional economics. See
( 11 ) See Case T-55/99 Confederación Espaola de Transporte de Mercancías
www.copenhageneconomics.com
(CETM) v Commission [2000] ECR II-3207, p. 86.

---

EN
9.6.2012 Official
Journal
of
the
European
Union L
150/81
(36) Therefore, the Commission is of the view that, even if
of the Facility was not transparent and open to other
Hammar operates exclusively at local level, the company
bidders. Consequently, the price at which it was sold
is active in a market where an effect on intra-Union and
does not allow the Commission to draw any conclusion
EEA trade and competition cannot be ruled out. The
as to its genuine market value ( 14 ). In addition, the
arguments put forward by Hammar thus give the
Commission notes that FABV purchased the Facility for
Commission no reason to depart from the preliminary
SEK 17 million on 13 February 2008, and on the same
findings of the opening decision on this criterion.
date agreed to provide a purchase option to Hammar for
the much lower price of SEK 8 million.
The advantage
(37) The
sole criterion of the State aid definition under
discussion, therefore, is whether FABV’s sale of the
(41) Point
II.2(a)
of
the
Communication
further
provides
that,
Facility conferred an advantage on Hammar. On the
if the sale takes place without an unconditional bidding
basis of the information available, the Commission is
procedure, ‘an independent evaluation should be carried
of the view that FABV sold the Facility to Hammar at
out by one or more independent asset valuers prior to
a price below its market value, which a private market
the sale negotiations in order to establish the market
investor is unlikely to do, thereby granting an advantage
value on the basis of generally accepted market indicators
to Hammar.
and valuation standards’. The Commission notes that

FABV did not request any independent evaluation of
the Facility prior to the sale negotiations.
(38) The
present
case
concerns
the
sale
of
certain
assets
in
public ownership to a private undertaking. Some of those
assets are real estate (land and buildings) and to assess
the presence of aid in those cases the Commission
(42) However,
notwithstanding
the
absence
of
an
open
and
applies the Commission Communication on State aid
unconditional bidding procedure and of an independent
elements in sales of land and buildings by public auth
evaluation prior to the sale negotiations, the market value
orities (
of the Facility as it was sold by FABV to Hammar can be

12 ) (‘the Communication’). When the sale concerns
other types of assets, the Commission applies the test of
inferred from other information available.
the private operator in a market economy, i.e. it assesses
whether the public seller behaved as a private investor
operating in a market economy. However, since the
Communication is based on the same private investor
test, for ease of presentation, the Commission will refer
(43) Indeed,
when
the
Facility
was
put
up
for
sale
in
late
to that Communication to assess the whole trans
2007, Chips AB commissioned Colliers International ( 15 )
action (
to draw up a memorandum of sale for the Facility.

13 ).
Colliers International indicated a sale price of SEK
27 million (EUR 2,7 million) for the real estate alone,
i.e. not including movable property and intellectual
(39) In particular,
in accordance with point II.1 of the
property rights. As noted in the opening decision, the
Communication, the existence of State aid in favour of
Commission believes this to constitute a reasonable
the buyer is automatically ruled out when the sale
estimate of the market price because (i) the estimate
follows ‘a sufficiently well-publicised, open and uncon
was obtained prior to the sale negotiations; (ii) it was
ditional bidding procedure, comparable to an auction,
commissioned by Chips AB in relation to the sale of
accepting the best or only bid’. According to the
the Facility, i.e. in a context where Chips AB could
information gathered by the Commission, it appears
reasonably have had no other interest than to obtain
that no bidding procedure was organised by FABV for
an accurate estimate of the market value; (iii) the study
the sale of the Facility. Therefore, the presence of State
was performed by a third party independent of both
aid cannot be automatically ruled out on that ground.
seller and buyer; and (iv) Colliers International has wide
experience in the real estate sector. However, Hammar
contests the Commission’s preliminary view that this
evaluation was independent, as it was commissioned by
(40) Hammar
argues
that
the
price
of
SEK
8
million
reflects
the seller. Hammar also considers that the assumptions
the market value of the Facility because at the time the
used by Colliers International were not realistic (inter alia
option was agreed there were no other bids. The
Commission notes, however, that the Municipality’s sale
( 14 ) The Communication defines market value as the price at which
land and buildings could be sold under private contract between
( 12 ) OJ C 209, 10.7.1997, p. 3.
a willing seller and an arm’s length buyer on the date of valuation,
( 13 ) In relation to the sale by public authorities of land or buildings to
it being assumed that the property is publicly exposed to the
an undertaking or to an individual involved in an economic activity,
market, that market conditions permit orderly disposal and that a
it must be pointed out that the Court has held that such a sale may
normal period, having regard to the nature of the property, is
include elements of State aid, in particular where it is not made at
available for the negotiation of the sale (point II.2).
market value, i.e. where it is not sold at the price which a private
( 15 ) Colliers International is a global commercial real estate services
investor, operating in normal competitive conditions, would have
organisation. It provides a range of services to commercial real
paid (Case C-290/07 P Commission v Scott [2010] not yet published
estate users, owners, investors and developers worldwide. The
in the ECR, p. 68, and Case C-239/09 Seydaland [2010] not yet
organisation serves the hotel, industrial, mixed-use, office, retail
published in the ECR, p. 34).
and residential property sectors. See www.colliers.com

---

L 150/82
EN
Official Journal of the European Union
9.6.2012
as it assumed only a 10 % vacancy rate), in view of the
return on a comparable industrial facility. This is
situation of the Facility at the time of the transaction.
particularly striking when compared to the rents
charged by Hammar to the local entrepreneurs only a
few days later, which were approximately seven times
higher (see footnotes 7 and 8). In view of this, the
(44) Another
possible
indicator
of
the
market
price
of
the
Commission concludes that the rents charged to
Facility is contained in the valuation carried out by
Hammar were below market price. The Commission
Swedbank Kommersiella Fastigheter ( 16 ) (‘Swedbank’) in
thus considers that the valuation of SEK 5,5 million,
June 2008. This valuation was done on behalf of the
which rests on an assumed level of rental income
local entrepreneurs who subsequently bought the
which is below market level, does not reflect the true
Facility and was intended for the purposes of a loan
market value of the Facility. On the other hand, the
for the acquisition of the Facility. Swedbank estimated
estimate of SEK 9 million rests on an assumed vacancy
the market value of the Facility at SEK 30 million (EUR
rate of 100 % in the two first years of ownership, which
3 million), even though the premises valued were smaller
then falls to 75 % in year 3 and 50 % in year 4 and levels
than the total size of the Facility ( 17 ). The vacancy rate
out at 60 % for the remainder of the period covered by
assumption used by Swedbank was 35 %, while all other
the valuation. However, the assumed vacancy rate
assumptions were comparable to those used by Colliers
disregards the fact that, at the time of the sale, it was
International.
known that the local entrepreneurs were prepared to rent
the Facility, and that consequently the value to assess is
that of the Facility with a tenant.
(45) The PwC report provides
a series of market value
estimates for the Facility depending on the moment at
which it was sold. For instance, the report concludes that
(48) The third estimate of the PwC report places the market
the value of the Facility at the time of the sale from
value of the Facility at the time when Hammar sold it to
Chips AB to FABV was approximately SEK 9 million,
the local entrepreneurs at approximately SEK 21 million,
while it was approximately SEK 5,5
million (EUR
even if the premises covered by that estimate are
0,55 million) when rented by Hammar from FABV on
somewhat smaller than the total size of the Facility (see
the same date (13 February 2008). The PwC report
footnote 17). That estimate is based on essentially the
provides a third estimate of the market value of the
same methodology as the estimates by Colliers Inter
Facility at the time when Hammar rented it to the
national and Swedbank, and uses as its main assumption
local entrepreneurs (1 March 2008) of approximately
the terms of the tenancy agreement between Hammar
SEK 21 million (EUR 2,1 million).
and the local entrepreneurs, i.e. the terms of the actual
lease that applied at the time of the sale. It must also be
noted that the terms of the lease presumably were
market conform, in particular since they were agreed
(46) The
Commission
first
notes
that
the
PwC
report
provides
between two private market operators arguably having
diverging figures for the market value of the Facility over
only economically rational motives. The Commission
a short period of time. Given that the market value of
thus considers that the third estimate of the market
real estate tends to remain relatively constant in the short
value of the Facility contained in the PwC report is
term, except in the occurrence of exceptional circum
plausible.
stances, the Commission has strong doubts as to some
of the valuations provided in the PwC report, in
particular in view of the fact that all transactions took
(49) Therefore, irrespective of which estimate of the Facility’s
place within a very short timeframe.
market value one chooses (the Colliers International one,
the Swedbank one, or the third estimate in the PwC
report), it is clear that the price of SEK 8 million at
which FABV sold the Facility to Hammar was well
(47) In relation to the first two valuations of the Facility
below market price, and consequently that it granted
contained in the PwC report (SEK 9 million and SEK
an advantage to Hammar.
5,5 million, respectively), the Commission comes to the
conclusion that, when compared to the contempor
aneous estimates of Colliers International and
Swedbank, these two valuations appear unrealistic. On
(50) Since
all
the
necessary
criteria
of
Article
107(1)
TFEU
are
the one hand, in relation to the estimate of SEK
met, the Commission concludes that the measure under
5,5 million, the Commission notes that Pricewaterhouse
assessment constitutes State aid. Moreover, since this
Coopers (‘PwC’) bases its valuation on the cash flows
State aid measure was provided to the beneficiary
derived from the rents paid by Hammar to FABV for
without prior Commission authorisation, it constitutes
the rental of the Facility, rents which PwC itself
unlawful aid.
acknowledges to be very low compared to the normal
( 16 ) Swedbank Kommersiella Fastigheter is a subsidiary of the large
Quantification of the advantage
banking group Swedbank and operates as a broker within the
commercial real estate business in Sweden. See http://www.
(51) The
advantage
for
the
beneficiary
will
correspond
to
the
swedbankkf.se
( 17 ) Valuation of 17 590 m 2 as opposed to the total extent of the
difference between the price paid by Hammar, i.e. SEK
Facility (22 504 m 2 ).
8 million, and the market price of the Facility.

---

EN
9.6.2012 Official
Journal
of
the
European
Union L
150/83
(52) In
establishing the market price of the Facility,
the
as they rely on assumptions and comparisons with other
Commission will examine the possible alternatives and
deals in the market rather than with transactions
estimates available, namely: (i) the SEK 17 million effec
involving the Facility itself.
tively paid by FABV to Chips AB on 18 February 2008;
(ii) the SEK 40 million effectively paid by the local entre
preneurs to Hammar; (iii) the SEK 27 million estimated
by Colliers International before the sale; (iv) the SEK
(56) On
balance,
the
Commission
considers
it
appropriate
to
30 million estimated by Swedbank in June 2008; and
use the market value from the third estimate in the PwC
(v) the SEK 21 million valuation contained in the PwC
report. As noted in recital 48, the Commission
report.
acknowledges that that estimate — despite it being
posterior to the transactions — is based on cash flow
figures from a tenancy agreement that actually existed
(53) The Commission considers that the price of SEK
(the one between Hammar and the local entrepreneurs)
17 million paid by FABV to Chips AB at the time of
and is thus based on actual market observations. In this
its purchase of the Facility does not constitute compelling
respect, the estimate of SEK 21 million constitutes a
evidence of the market value. The Commission has
plausible, albeit conservative, estimate of the market
already explained in the opening decision that Chips
value of the Facility, when compared to the estimates
AB accepted a price lower than the estimated market
of Colliers International and Swedbank. Moreover, the
value of the Facility because it wanted to avoid damage
Commission observes that Hammar entered into an
to its corporate reputation deriving from the closure of
option agreement on 13 February 2008 to buy the
the Facility and the job losses that would have followed,
Facility for SEK 8 million, and exercised that option on
It also wished to avail itself of the opportunity of a quick
11 August 2008. On 1 March 2008, Hammar entered
sale to close the book on its Topp operations. A private
into an option agreement with local entrepreneurs to sell
market operator not having these constraints (which are
the Facility for SEK 40 million and the contract of sale
specific to Chips AB) would have requested a higher
was concluded, in execution of the option, on
price. For those reasons, the Commission does not
2 September 2008. The date which the PwC report
deem it necessary to reply to the argument of Hammar
uses as its basis for the estimated value of SEK
(summarised in recital 27 of the present Decision), which
21 million for the Facility is 1 March 2008. Given the
moreover concerns a point which is not part of the
proximity in time between all these transactions, there is
formal investigation.
no reason to believe that the market value of the Facility
could have been substantially different from SEK
21 million at the time when Hammar bought it or
entered into the option agreement.
(54) On the basis of the information received in the course of
the formal investigation procedure, the Commission has
also found that the amount of SEK 40 million agreed
with the local entrepreneurs does not seem a good
(57) On
this
basis,
the
advantage
to
Hammar
amounts
to
SEK
proxy for the market price of the Facility, because the
13 million (EUR 1,3 million). The advantage is calculated
entrepreneurs financed this agreed amount partly
as the difference between the market value of SEK
through a bank loan and partly through a loan from
21 million and the actual price of SEK 8 million paid
Hammar itself. The large proportion of funding
by Hammar for the Facility.
provided by the seller (who is the same time creditor
of the transaction) and the corresponding credit risk
borne by him do not directly support the argument
that the nominal price of SEK 40 million represents the
4.2. Compatibility of the aid
actual financial value of the Facility. The nominal price
paid in this transaction is thus not compelling evidence
(58) Neither Sweden nor Hammar have put forward
of the price that would have been paid for the Facility in
arguments on the compatibility of the aid. The only
a sale on market terms, but it is certainly a further indi
objectives indicated by the Swedish authorities with
cation that the price of SEK 8 million does not reflect the
respect to the measure at stake were the political
market value of the Facility. Indeed, the two options were
intentions of the Municipality to preserve the business
set within a period of less than three weeks, and such a
as a going concern and at the same time to safeguard
considerable price difference over a short period of time
employment in the Vnersborg area.
confirms that this amount was not a market price.
(55) Regarding
the
estimates
of
Colliers
International
and
(59) Given that the Municipality is not located in an assisted
Swedbank, the Commission sees in principle no reason
area (see recital 14), it is not eligible for regional aid. The
to doubt that they are independent and produced
types of objective for the measure put forward by
according to generally accepted standards. However, the
Sweden could be taken into consideration in the light
Commission acknowledges that those estimates are not
of the Communication from the Commission —
immediately comparable, since some of the assumptions
Community Guidelines on State aid for rescuing and
underlying the assessments diverge. On the basis of the
restructuring firms in difficulty ( 18 ). However, there are
information available, the Commission cannot be entirely
no indications that the conditions laid down in these
certain as to whether those estimates provide the most
reliable reflection of the true market value of the Facility,
( 18 ) OJ C 244, 1.10.2004, p. 2.

---

L 150/84
EN
Official Journal of the European Union
9.6.2012
Guidelines would be met in this case. In particular,
between 1 March 2008 and 11 August 2008, the date
nothing indicates that Hammar was a firm in difficulty
on which it exercised its option, i.e. for approximately six
at the time of its purchase of the Facility.
months, a pro rata calculation of the SEK 3 million
advantage, being the difference between the rent agreed
between FABV and Hammar and the rent agreed between
Hammar and the local entrepreneurs, would lead to a
(60) In
any
event,
it
has
not
been
sufficiently
demonstrated
so
figure of SEK 1,5 million (EUR 0,15 million).
far that the measure was necessary and proportionate to
attain any objectives of common interest. Therefore, the
Commission has not identified any grounds to declare
the aid compatible with the internal market in the light
(65) Given
that
no
compatibility
grounds
apply
or
have
been
of Article 107(3) TFEU.
invoked (see Section 4.2), the Commission concludes that
the tenancy agreement concluded between FABV and
Hammar on 13 February 2008 entails State aid that is
unlawful and incompatible with the internal market on
(61) No
other
grounds
for
compatibility
seem
to
apply.
The
Commission therefore concludes that the sale of the
the basis of Article 107(1) TFEU.
Facility to Hammar by the Municipality constitutes
State aid that is unlawful and incompatible with the
internal market on the basis of Article 107(1) TFEU.
(66) In relation to the price of the option granted to Hammar
to purchase the Facility, the Commission notes that this
option does not seem to be enforceable as, under
4.3. The tenancy agreement and the price of the
Swedish law, commitments to buy or sell real estate at
option
a point in the future are in principle not binding ( 19 ). The
advantage that Hammar could have derived from such an
(62) In the opening decision, the Commission also raised
option is thus very uncertain, if not inexistent, and in any
doubts as to the compliance with market conditions of
event may well have been outweighed by the rent paid or
the tenancy agreement concluded between FABV and
the sale price. It can thus not be firmly established that
Hammar on 13 February 2008 and the price of the
Hammar derived an advantage from that option separate
option granted to Hammar to purchase the Facility (see
from the advantage it received through the tenancy
paragraph 38 of the opening decision).
agreement and subsequent sale of the Facility.
(63) Regarding the tenancy agreement, the Commission
5. RECOVERY
considers that it entails State aid, given that the
necessary requirements of Article 107(1) TFEU are met
(67) Article
14(1)
of
Council
Regulation
(EC)
No
659/1999
of
for the same reasons set out in section 4.1 above: (i) the
22 March 1999 laying down detailed rules for the appli
beneficiary of the measure, i.e. Hammar, qualifies as an
cation of Article 93 of the EC Treaty ( 20 ) lays down that
undertaking; (ii) the decisions of FABV are imputable to
‘where negative decisions are taken in respect of unlawful
the State, and to the extent that they have financial
aid, the Commission shall decide that the Member State
implications, they imply the use of State resources; (iii)
concerned shall take all necessary measures to recover
the measure is selective, since it benefited a specific
the aid from the beneficiary’.
undertaking; (iv) as explained in recital 47, and as
recognised by the PwC report submitted by Hammar
itself, the Commission considers that the rents charged
by FABV to Hammar are below market price and
(68) Given
that
the
measure
at
hand
constitutes
unlawful
and
therefore entail an advantage to Hammar; and (v) even
incompatible aid, the amount of aid must be recovered in
if Hammar operates exclusively at local level, it is active
order to re-establish the situation that existed on the
in a market where an effect on intra-Union and EEA
market prior to the granting of the aid. Recovery shall
trade and competition cannot be ruled out.
therefore be effected from the time when the advantage
occurred to the beneficiary, i.e. when the aid was put at
the disposal of the beneficiary, and shall bear recovery
interest until effective recovery.
(64) In
order
to
determine
the
advantage
enjoyed
by
Hammar,
a comparison should be made between the rent agreed
between FABV and Hammar on 13 February 2008 —
SEK 0,5 million for the first year — and the rent agreed
(69) The
incompatible
aid
element
of
the
measures
should
be
on 1 March 2008 between Hammar and the local entre
calculated as SEK 14,5
million, consisting of the
preneurs — SEK 3,5 million for the first year. The
difference between the market price of the Facility (SEK
Commission considers that the terms of this latter
21 million) and the price paid by Hammar (SEK
agreement represent the market value for letting the
Facility, given that it was agreed between two private
parties with economically rational motives. It must also
( 19 ) Under the Swedish Land Code (Jordabalken), a binding transfer of
be noted in this respect that the PwC report uses the
land must be made, inter alia, in writing and contain a formal
declaration of transfer of the property. In the present case, the
latter amount to calculate the value of the Facility.
‘option’ contract contained only a ‘right to purchase’.
Given that Hammar paid rent to the Municipality only
( 20 ) OJ L 83, 27.3.1999, p. 1.

---

EN
9.6.2012 Official
Journal
of
the
European
Union L
150/85
8 million), which amounts to SEK 13 million, plus the
2. Sweden
shall
ensure
that
this
Decision
is
implemented
amount that should be recovered under the lease
within four months following the date of notification of this
agreement (SEK 1,5 million).
Decision.
(70) Recovery interest should be paid on that recovery
Article 4
amount. For the incompatible aid element of SEK
13 million, recovery interest should be calculated as
1. Within
two
months
following
the
date
of
notification
of
from the date on which Hammar exercised its option
this Decision, Sweden shall submit the following information to
and acquired the Facility from FABV, i.e. 11 August
the Commission:
2008. For the incompatible aid element of SEK
1,5 million, recovery interest should be calculated as
from the date on which the rent was due, i.e. 1 March
(a) the total amount (principal and recovery interests) to be
2008,
recovered from the beneficiary;
HAS ADOPTED THIS DECISION:
(b) a detailed description of the measures already taken and
planned to comply with this Decision;
Article 1
The State aid amounting to SEK 14,5 million, unlawfully
(c) documents demonstrating that the beneficiary has been
granted by Sweden, in breach of Article 108(3) of the Treaty
ordered to repay the aid.
on the Functioning of the European Union, in favour of
Hammar Nordic Plugg AB in the form of selling and renting
of public property in Brlanda, in the Municipality of
2. Sweden
shall
keep
the
Commission
informed
of
the
Vnersborg, below its market value is incompatible with the
progress of the national measures taken to implement this
internal market.
Decision until recovery of the aid referred to in Article 1 has
been completed. It shall immediately submit, on simple request
Article 2
by the Commission, information on the measures already taken
and planned to comply with this Decision. It shall also provide
1. Sweden shall recover the aid referred to in Article 1 from
detailed information concerning the amounts of aid and
Hammar Nordic Plugg AB.
recovery interest already recovered from the beneficiary.
2. The sums to be recovered shall bear interest from the date
Article 5
on which they were put at the disposal of Hammar Nordic
Plugg AB until their actual recovery.
This Decision is addressed to the Kingdom of Sweden.
3. The
interest
shall
be
calculated
on
a
compound
basis
in
accordance with Chapter V of Commission Regulation (EC) No
Done at Brussels, 8 February 2012.
794/2004 ( 21 ).
Article 3
For the Commission
1. Recovery
of
the
aid
referred
to
in
Article
1
shall
be
Joaquín ALMUNIA
immediate and effective.
Vice-President
( 21 ) OJ L 140, 30.4.2004, p. 1.

---

Document Outline

• �

---