State aid: Op­er­a­tor of Pol­ish A2 mo­tor­way needs to re­pay around €210 mil­lion of un­due com­pen­sa­tion to Pol­ish State

The Euro­pean Com­mis­sion has con­cluded that AWSA, the op­er­a­tor of the Pol­ish A2 mo­tor­way, was over­com­pen­sated for a change in Pol­ish law on toll mo­tor­ways. This was in breach of EU State aid rules. AWSA has to re­pay PLN 895 mil­lion (around €210 mil­lion), t

The Malta Business Weekly - - FRONT PAGE -

Poland no­ti­fied the Com­mis­sion in Au­gust 2012 that they had over­com­pen­sated Au­tostrada Wielkopol­ska S.A. (AWSA) for loss in rev­enue re­sult­ing from a change in na­tional leg­is­la­tion on toll mo­tor­ways. The com­pen­sa­tion paid cov­ered the pe­riod from 1 Septem­ber 2005 to 30 June 2011.

In par­tic­u­lar, it re­lated to a change in Pol­ish law, in­tro­duced in 2005, to ex­empt heavy goods ve­hi­cles with a valid vi­gnette from the obli­ga­tion to pay mo­tor­way tolls. Be­fore, heavy goods ve­hi­cles had been li­able to pay both mo­tor­way tolls and a lump-sum vi­gnette fee. The change ended this dou­ble charg­ing of heavy goods ve­hi­cles in Poland, which was in breach of EU trans­port rules. At the same time, Pol­ish au­thor­i­ties de­cided to com­pen­sate mo­tor­way op­er­a­tors for their re­sult­ing loss in rev­enue. This com­pen­sa­tion was agreed with each mo­tor­way op­er­a­tor in­di­vid­u­ally.

In the case of AWSA, the terms of the com­pen­sa­tion were set out in an an­nex to its orig­i­nal con­ces­sion agree­ment with Poland. How­ever, ac­cord­ing to Poland, when ap­ply­ing the method un­der the agree­ment, an out­dated study on traf­fic and rev­enues was used. In­stead of us­ing the most up-to–date study from 2004, AWSA re­lied on a study from 1999. The 1999 study had es­ti­mated a sig­nif­i­cantly higher level of traf­fic and rev­enue and thus led to higher ex­pected prof­itabil­ity.

The Com­mis­sion's in-depth in­ves­ti­ga­tion opened in June 2014 con­firmed that AWSA was en­ti­tled to re­ceive com­pen­sa­tion un­der its con­ces­sion agree­ment with Poland to re­store its ex­pected fi­nan­cial sit­u­a­tion just be­fore the change of Pol­ish law in 2005.

How­ever, the Com­mis­sion's in­ves­ti­ga­tion con­firmed that the Pol­ish au­thor­i­ties had re­lied on the out­dated fig­ures of 1999. This led to an over­es­ti­ma­tion of the rev­enue AWSA would have gen­er­ated from tolls on heavy goods ve­hi­cles in the ab­sence of the leg­isla­tive change. The dif­fer­ence be­tween the com­pen­sa­tion ac­tu­ally paid and the es­ti­mates based on the up­dated 2004 fig­ures amounts to an un­due eco­nomic ad­van­tage to AWSA, in breach of EU State aid rules. This is be­cause the com­pen­sa­tion ac­tu­ally paid to AWSA went be­yond the di­rect ef­fects of the leg­isla­tive change and im­proved its ex­pected fi­nan­cial sit­u­a­tion. There­fore, AWSA needs to re­pay PLN 895 mil­lion (around €210 mil­lion), plus in­ter­est.

Back­ground

As a mat­ter of prin­ci­ple, EU state aid rules re­quire that in­com­pat­i­ble state aid is re­cov­ered in or­der to re­move the dis­tor­tion of com­pe­ti­tion cre­ated by the aid. There are no fines un­der EU State aid rules and re­cov­ery does not pe­nalise the com­pany in ques­tion. It sim­ply re­stores equal treat­ment with other com­pa­nies.

Di­rec­tive 1999/62/EC on the charg­ing of heavy goods ve­hi­cles for the use of cer­tain in­fra­struc­tures re­quires Mem­ber States to re­spect cer­tain con­di­tions when main­tain­ing or in­tro­duc­ing tolls and/or user charges on the Tran­sEuro­pean road net­work. In 2005, Poland brought its na­tional law in line with the Di­rec­tive by amend­ing the na­tional leg­is­la­tion on toll mo­tor­ways (the Act of 28 July 2005 amend­ing the Act on toll mo­tor­ways and the Na­tional Road Fund and the Road Trans­port Act; Jour­nal of Laws No 155, item 1297). The amend­ment abol­ished dou­ble charg­ing on toll mo­tor­ways by al­low­ing heavy goods ve­hi­cles with a valid vi­gnette to use these mo­tor­ways with­out fur­ther charge.

On 30 June 2011, Poland in­tro­duced an elec­tronic toll col­lec­tion sys­tem "via TOLL" that re­placed the vi­gnettes. Since the sys­tem cov­ers only se­lected roads and not the whole road net­work in Poland (as the vi­gnettes did) there is no longer a risk of dou­ble charg­ing. Thus, mo­tor­way op­er­a­tors in Poland could again charge all heavy goods ve­hi­cles en­ter­ing toll mo­tor­ways ac­cord­ing to the rules set up in the con­ces­sion agree­ments.

In De­cem­ber 2013, the Com­mis­sion con­cluded that the com­pen­sa­tion for the con­ces­sion holder of the Pol­ish A4 mo­tor­way Ka­tow­ice - Krakow in­volved no State aid (case N 541/2010). While the ba­sic prin­ci­ples of the com­pen­sa­tion mech­a­nism were the same as in the present case, its ac­tual ap­pli­ca­tion did not raise any com­pe­ti­tion con­cerns in the case of the A4 mo­tor­way.

The non-con­fi­den­tial ver­sion of the de­ci­sion will be made avail­able un­der the case num­ber SA.35356 in the State Aid Reg­is­ter on the DG Com­pe­ti­tion web­site once any con­fi­den­tial­ity is­sues have been re­solved. New publications of state aid de­ci­sions on the in­ter­net and in the Of­fi­cial Jour­nal are listed in the State Aid Weekly eNews.

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