European port cleared of concession mishandling
The European Commission (EC) has concluded that reductions in compensation payments granted by the state-owned Port of Antwerp to two container terminal operators were on market terms and did not involve state aid.
Between 2009 and 2012, PSA Antwerp NV and Antwerp Gateway NV did not reach their yearly minimum tonnage requirements as part of their concession agreements with Antwerp Port Authority but the port authority did not collect due compensation and retroactively revised the requirements downwards, reducing the compensation due by around 80% for each operator and prompting complaint from a competitor.
In January 2016, the EC began investigating whether the port authority’s compensation reductions were in line with EU State aid rules and whether a private operator would have accepted a similar reduction. In addition to challenging concessions and economic circumstances, the EC found the size of the reduction of the minimum tonnage requirements and the methodology applied to determine these adjustments were in line with what a private market operator would have used and applied.
The investigation found that in the context of the economic crisis, a certain adjustment of the minimum tonnage requirements was justifiable since container volumes and traffic decreased in all major ports in Europe, including Antwerp. For this reason, the port authority also adjusted the minimum tonnage requirements of other terminal operators.
As the concessionaires of Deurganckdok, a new area of the port, PSA Antwerp NV and Antwerp Gateway NV were still in a start-up phase when the economic crisis started and in a more challenging situation than other operators. This further justified the adjustment to their minimum tonnage requirements, found the investigation.
The port authority was also concerned that forcing the two concessionaires to pay the full amount of compensation could have had negative effects on the economic situation of the companies and put their relationship with the port at risk.
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