Comments by the Norwegian authorities mintaszakaszok

Comments by the Norwegian authorities. The Norwegian authorities, in their comments on the comp- laint, have argued that the recipients of the support scheme are private households and not undertakings within the meaning of Article 61(1) EEA. Thus, for this reason the measure cannot be considered to constitute State aid. To support their view, the authorities refer to the Authority's decision of 3 May 2006, regarding the Norwegian Energy Fund, Commission Decision No 158/02 and Commission Decision No 369/05. (1) St. prp. No 82 (2005-2006), press release from the Ministry of Petro- leum and Energy of 25 August 2006 and of 14 September 2006.

Comments by the Norwegian authorities. The training of airline pilots, although regulated by the State through the provisions in the Aviation Act, is not integrated into the national education system. Citing geographic and demographic reasons, the Norwe- gian authorities highlight the importance of retaining in Norway a capacity to train airline pilots. Articles 149 and 150 EC are referred to as an indication that educational matters fall within the scope of national responsibility and the case law of the European Court of Justice (5) is invoked in support of the view that education falls outside the definition of „service”. Troms County does not consider the remission of the loan to be unlawful State aid and cites the participa- tion of other creditors in the sanitation of the debt in support of this. It also argues that while it is true that no commercial guarantee commission has been levied for the loan guarantee, any such commission would, in any event, have fallen below the de minimis threshold. The Municipality of Målselv considers the loan to have been granted at the appropriate rate in light of the reference rates set out in Chapter 34 of the State Aid Guidelines.

Comments by the Norwegian authorities. The Norwegian authorities have argued that the possibility for the air base to be seen as an attractive investment for potential investors was very limited, particularly in the light of the exis- ting lease agreement entered into with LILAS and the possibility for the latter to purchase the property at the end of a ten year period. Indeed, very few would-be buyers would be willing to invest in the air base and develop it as the tenant of the property was given the right to purchase part/all of it after just a few years. The Norwegian authorities consider that ‘the market value of the air base is by definition not more than possible buyers are willing to pay. (…) NDEA made its best efforts to achieve the highest possible price in the existing markets’. The Norwegian authorities have argued that the reason for their choosing the Verditakst report instead of the OPAK report was because ‘the value assessment made by OPAK AS dated 29 May 2002 was a temporary and simplified value assessment primarily carried out for budgetary purposes. Basically, the assessment was a suggestion of the highest possible payment investors might be willing to pay for the air base, provided that all favourable preconditions were fully met’. The Norwegian authorities have furthermore indicated that the value of NOK 25 000 000 which was set in the case LILAS decided to buy the entire property en bloc during the lease, was the result of negotiations. According to the Norwegian authori- ties, such a high amount was arrived at because ‘in 1996, the parties were optimistic about the potential outcome of their mutual efforts in developing the property and thereby create additional value to the property’. The Norwegian authorities have furthermore indicated that their aim in selling Lista air base was to save the government future costs. Indeed, over the period 1996-2002, the NDEA spent NOK 41 500 000 on the management, maintenance and upgrades of the air base. The works included drainage, installa- tion of runway lightening and public relations spending. The cost arising from the ‘development alternative’ was of NOK 50 000 000 whereas maintaining the air base would have had a cost of NOK 00 000 000-000 000 000. The Norwegian authorities consider that this element should be taken into account when evaluating whether the NDEA should have sold the property at the agreed price.

Comments by the Norwegian authorities. The Norwegian authorities acknowledge that Xxxxx Xxxxxxxxxxxx applied a formal procedure to calculate the price of the buildings that differed slightly from the method described in the Authority’s Guidelines in order to exclude the presence of state aid. However, the Norwegian authorities are of the opinion that the sales price of NOK 4 million for the 29 buildings in the Inner Camp represents the market value and the procedure chosen for ensuring this was considered rational and secure. Moreover, the Norwegian authorities are of the opinion that the sales contract between Xxxxx Xxxxxxxxxxxx and Haslemoen AS contains several elements that have a price reducing effect. One of these elements is an obligation imposed on the buyer to rent out the purchased school building for a period of one year for free. The Norwegian authorities argue that although only part of the 44 buildings were bought, the sales contract between Xxxxx Xxxxxxxxxxxx and Haslemoen AS is nevertheless based on the assumption that the buyer would develop and operate the entire Inner Camp as well as the areas outside as one unit together with Xxxxx Xxxxxxxxxxxx (1). The sales price of NOK 4 million reflects this assumption and this is the reason why the application of a 30 % and an additional 20 % rebate was justified when reaching the final price. The Norwegian authorities have stressed that Xxxxx Xxxxxxxxxxxx endeavoured to handle the sale in a manner that would not raise problems with regard to the EEA state aid rules.

Comments by the Norwegian authorities. The Norwegian authorities have stated that the scheme has been notified to the Authority for reasons of legal certainty. The Norwegian authorities claim that the scheme cannot be supposed to constitute State aid within the meaning of Article 61(1) of the EEA Agreement. This seems to be based on three different lines of argumentation. Firstly, the Norwegian authorities argue that the scheme does not confer any advantage on the cooperatives. In this regard, the Norwegian authorities argue that the general principle laid down in the Altmark doctrine (4), referred to by the Norwegian autho- rities as the market investor principle, ‘must apply where the measure consists of advantages given to the recipient to cover the extra costs for the undertaking to fulfil obligations imposed on it and by which the State in return is given an intangible benefit of public interest’ (5). According to the Norwegian authorities, this should in any case apply where the obligation imposed is external to the interests of the undertakings concerned. The Norwegian authorities claim that the principle laid down in the Altmark judgement should apply in this case even though ‘the Norwegian authorities are not of the opinion that the notified scheme is in line with the Altmark judgement or compatible with the Authority's Guide- lines on State Aid in the Form of Public Service Compensation’ (5). The obligation imposed on the cooperatives is in this case the prohibition for cooperatives to issue shares or other capital (1) According to paragraph 2a of Section 10-50, the provision only applies to cooperatives where more than 50 % of the regular turnover is related to trade with the members. (2) Act of 6 June 2003 No 38 Lov om bustadbyggjelag (bustadbyggjelagslova). (3) This is an expansion of the scheme compared to the scheme in force until 2005, cf. Section I.2.1 above. (4) Case C-280/00, Altmark Trans GmbH, [2003] ECR I-7747. (5) Section 1 of the letter from the Ministry of Finance dated 16 October 2007 (Event No 447272). certificates or securities in order to strengthen their equity capital, restrictions which the Norwegian authorities consider as essential. The intangible benefit is the public interest of keeping up and safeguarding the cooperative companies as alternatives to limited companies and other organisational forms. The Norwegian authorities argue that the case law on which the Authority's Public Service Compensation Guidelines is based ‘does not rule out that the market prin...

Comments by the Norwegian authorities. The Norwegian authorities argue that the fitness centre is run as a part of the municipal healthcare service and provides a service of general economic interest. Since 1997, the municipality of Vefsn has operated the KLC under the FYSAK programme — a programme managed by the county municipality of Nordland in order to aid the municipalities of Nordland in fulfilling their obligations to promote health in accordance with the Municipal Health Service Act (2). According to its Article 2(1) the municipality has a legal obligation to provide ‘necessary healthcare’ to anyone residing or temporarily staying within the area of the municipality. According to Articles 1(2) and 1(4), the Norwegian municipalities shall prevent and treat diseases, injuries and other health problems, and when providing such services, the municipalities shall promote public health, public well-being and the quality of the general social environment. The Norwegian authorities hold that the financing of the fitness centre at the KLC merely represents compensation for services rendered by the fitness centre which is provided in line with the Altmark criteria (3). Consequently, it does not constitute aid within the meaning of Article 61(1) of the EEA Agreement. In any event, the Norwegian authorities argue that the financing of the fitness centre at the KLC, as far as it could be held to constitute State aid within the meaning of Article 61(1) of the EEA Agreement, must be considered compatible either as a public service compensation on the basis of Article 59(2) of the EEA Agreement, or alternatively as a cultural measure on the basis of Article 61(3)(c) of the EEA Agreement.

Comments by the Norwegian authorities. The Norwegian authorities put forward the view that the increased compensation does not constitute State aid. They argue that on the basis of the renegotiation clause mentioned above, Xxxxxxxxxxx was entitled to demand a renegotiation and the authorities acted as a rational market operator during the renegotiation process. Alternatively, the Norwegian authorities are of the view that the measures are public service compensation under Article 59(2) of the EEA Agreement, and as such compatible with the EEA Agreement. The Norwegian authorities also maintain that the measures taken in October 2008 were emergency measures taken in the acute difficult economic situation of Hurtigruten in 2008, in order to ensure continuous service in the interim period until a new tendering procedure could be finalised. The Norwegian authorities finally submit that Hurtigruten was a firm in difficulty within the meaning of the State Aid Guidelines and they argue that the measures meet the requirements for restructuring aid under Article 61(3)(c) of the EEA Agreement and the Guidelines for aid for rescuing and restructuring firms in difficulty.

Comments by the Norwegian authorities. (62) The Norwegian authorities submit that the complaint, without further elaboration, mainly refers to an Authority Decision that concerned an entirely different case, i.e. bus transport in Oslo (37). The complainant, according to the Norwegian authorities, has not substantiated how Aust-Agder has violated the State aid rules, nor has it explained how the bus companies concerned have been overcompensated. Further, the Norwegian authorities reject as incorrect the complainant’s allegation that Aust-Agder has displayed a lack of interest in holding the companies to the terms of the contracts. (63) The Norwegian authorities further take the view that the present compensation scheme in Aust-Agder does not entail State aid within the meaning of Article 61(1) of the EEA Agreement because it fulfils the criteria laid down in the Altmark judgment (38). (64) As regard the first Altmark criterion, the Norwegian authorities consider the public bus transport service obligations to be clearly defined as a service of general economic interest. In that context, the Norwegian authorities point to Article 1(1) of Regulation (EC) No 1370/2007 (39), arguing that the obligations at issue have been defined and entrusted by way of both law, concessions/licences and in the contracts concluded with the companies. (65) According to the second Altmark condition, the parameters that serve as a basis for calculating compensation must be established in advance in an objective and transparent manner in order to ensure that they do not confer an economic advantage that could favour the recipient undertakings. The Norwegian authorities submit that the introduction of the ALFA-method as from 2004, complies with the second condition. The costs, revenues and the compensation from Aust-Agder are determined in advance in an objective and transparent manner indicating all the different elements of the formula that relevant for the calculation. (66) With regard to the third Altmark condition, the Norwegian authorities argue that the calculation of the compensation according to the ALFA-method and its indexation does not exceed what is necessary to cover the costs of the discharge of the public service obligations, taking into account relevant income and a reasonable profit. They point out that the compensation in this case is

Comments by the Norwegian authorities. The Norwegian authorities are of the opinion that the compensation was within the limits of the compensa- tion authorised by the Authority in its 2001 Decision, and should therefore be classified as ‘existing aid’ in line with the definition of Article 1 b (ii) in Part II of Protocol 3 to the Surveillance and Court Agreement. The Norwegian authorities consider the payment to be covered by the Hurtigruten Agreement in force at the time when the payment was granted. They rely, in this respect, on Section 10 of the Hurtigruten Agree- ment, a clause whereby both parties to the Hurtigruten Agreement may demand a re-negotiation procedure in the event of substantial changes in the prerequisites of the Hurtigruten Agreement. The Norwegian autho- rities state that they regard the changes in the differentiated social security system to fulfil this criterion. They could not have been foreseen by the Hurtigruten companies. As a result of the negotiations with the compa- nies, the compensation for these costs was set to NOK 7,352 million for 2004. The purpose of compensa- ting for the amendments in the social security scheme was, according to the Norwegian authorities, to ensure status quo with regard to the agreed level of transport along the Norwegian coastline, by enabling the Hurtigruten companies to continue to carry out the public service obligation entrusted on them in the Agreement. (1) Decision 172/02/COL. (2) Decision 218/03/COL. The transitional period did not apply to Zone 5, as the EFTA States by decision No 2/2003/SC of 1 July 2003 decided that the regionally differentiated social security contributions in Zone 5 was compatible with the EEA Agreement due to exceptional circumstances in this zone. (3) The comments to Position 70 read as follows: Av budsjettforslaget på 200,8 mill. kr for 2004, er 192,3 mill. kr direkte relatert til den gjeldende avtalen med hurtigruterederiene. Restbeløpet på 8,5 mill. kr er knyttet til ev. kompensasjon som følge av endringer i ordningen med differensiert arbeidsgiveravgift. Endelig kompensasjonsbeløp vil bli bestemt når forhandlingene mellom hurtigruteselska- pene og departementet er avsluttet. [Unofficial translation by the Authority: Of the budget proposal of NOK 200,8 million for 2004, NOK 192,3 million are directly related to the current agreement with the Hurtigruten companies. The remainder of NOK 8,5 million is related to possible compensation as a consequence of amendments to the system concerning differen- tiated...

Comments by the Norwegian authorities. In its correspondence with the Authority, the Norwegian authorities claim that the compensation of input tax foreseen under Article 3 of the VAT Compensation Act falls outside the scope of Article 61(1) of the EEA Agreement. The Norwegian authorities allege that when the scheme was introduced in 2004, muni- cipal appropriations in the annual fiscal budget were reduced accordingly by the expected amount of input tax compensated. Therefore, the Norwegian authorities are of the opinion that the input tax compensation scheme is self-financing, and not financed through State resources from the fiscal budget (7). Further, the Norwegian authorities justify the selective nature of Article 3 of the VAT Compensation Act by referring to the objective of the VAT Compensation Act. According to Article 1 of the VAT Compensa- tion Act, the objective is to mitigate distortion of competition resulting from the general VAT system. By compensating the municipalities for input tax on all goods and services, the Norwegian authorities aim to create a level playing field between self-supply and outsourcing. Accordingly, the Norwegian authorities consider that the compensation of input tax provided for in Article 3 of the VAT Compensation Act falls within the nature and logic of the VAT system (8). (1) Act No 107 of 25 September 1992 on Local Government (Lov om kommuner og fylkeskommuner). (2) Act No 107 of 25 September 1992 on Local Government (Lov om kommuner og fylkeskommuner). (3) Act No 64 of 17 June 2005 on Day Care Institutions (Lov om barnehager). (4) See Chapter VI of the VAT Act. (5) Article 3 in connection with Article 4 of the VAT Compensation Act. (6) See Article 6(2) of the VAT Compensation Act. (7) Page 3 of the letter from the Norwegian Ministry of Finance dated 14 January 2005. The opinion of the Norwegian authorities is repeated on page 2 of letter dated 30 November 2005 form the Norwegian Ministry of Finance. (8) Page 2 of the letter from the Norwegian Ministry of Finance dated 30 November 2005. Nevertheless, the Norwegian authorities acknowledge that the general input tax compensation scheme may imply an economic advantage for public entities carrying out economic activities falling outside the scope of the VAT Act. On page 3 of the letter dated 30 November 2005 from the Norwegian Ministry of Finance, the Norwegian authorities state the following: Finally, according to the Norwegian authorities, the scope of the VAT Compensation Act was limited in order to pre...