State aid – the EFTA Surveillance Authority’s decision to propose appropriate measures to Norway with regard to State aid in the form of guarantees under the Act on State Enterprises

Reference is made to the EFTA Surveillance Authority’s decision of 4 December 2002, Dec. No. 236/02/COL, to propose appropriate measures to Norway with regard to State aid in the form of guarantees under the Act on State enterprises. Reference is also made to the meeting between representatives of the Norwegian Government and the EFTA Surveillance Authority in Brussels on 9 January 2003.

The Norwegian Government was requested to communicate to the Authority the relevant measures it would take to abolish the aid and to agree to the proposal for appropriate measures within six weeks of receipt of the decision (16 January 2003).

In a letter of 24 January 2003, the Authority agreed to an extension of the deadline until 16 February 2003.

Measures

In a letter of 16 January 2003, the Norwegian Government communicated some of the measures it would take to eliminate any incompatible aid resulting from Sections 4, 51 and 53 of the Act on State Enterprises. The following is a supplement to our previous letter.

The Act on State Enterprises

On 25 October 2002 the Government submitted a Proposition to the Storting (the parliament) on amending the Act. The amendments entered into force on 1 January 2003.

The provisions stipulated in Sections 51 and 53 of the Act, which state that the State is liable for obligations undertaken by a State enterprise if the enterprise is dissolved, have been repealed. The provision stipulated in Section 4, subsection 2 of the Act, which states that liquidation and debt settlement proceedings may not be instituted in respect of a state-owned enterprise, has also been repealed. The previous liability has been replaced with a limited participant liability, such as that of limited companies.

Transitional arrangements

Obligations linked to loans

The transitional arrangements maintain the previous guarantee regime for all obligations linked to specific loans taken up before the amendment of the Act.

The Norwegian Government is of the opinion that a market-based guarantee premium neutralizes the State aid element, and hence that the guarantee does not constitute State aid within the meaning of Article 61 of the EEA Agreement. This applies even if the guarantee covers the full amount of each outstanding loan.

Statkraft and Statnett

New guarantee premiums for Statkraft and Statnett will be based on the reports from First Securities (see attachment 1 and 2) and will be proposed by the Government to the parliament in the Revised National Budget of 2003, to have effect from 1 January 2003. For further details we refer to our letter of 16 January 2003. The amount of the guarantee premiums will have to be agreed upon between the ministries before the proposal is put forward. The Norwegian Government will ensure that the aid element on each loan is neutralized. The basic premium for each loan will be fixed for each loan until maturity, but the average and total guarantee premium in the National Budget will vary from year to year as old loans are paid off. It is possible that the Government will decide to add extra premiums to each loan, in addition to the calculated amount, so that the total premium per loan may vary from year to year as a result of discussions between the ministries.

SIVA

SIVA SF has no bonds or bank loans, only loans directly from the State. Since 1 July 2002 SIVA has paid guarantee premiums equal to 60 basis points for these loans, in addition to an administration fee of 40 basis points, on top of the state efficient interest rate. Converting from state rate to NIBOR, SIVA pays an interest rate equal to 3 months NIBOR + 90 to 100 basis points.

Since the company was made a State Enterprise in 1991, it has not been credit rated. The company’s creditworthiness is not considered by the commercial credit market, because SIVA is not, according to its by-laws, allowed to issue bonds or raise bank loans in the commercial market. It is therefore not possible to calculate premiums for SIVA’s loans individually on the basis of the same method used for Statkraft and Statnett.

The Ministry of Trade and Industry has contacted SIVA’s main bank connection (Fokus Bank ASA, Trondheim). Fokus claims that if SIVA’s loans were to be refinanced with ordinary bank loans in NOK, Fokus would price the loans at around 3 months NIBOR + 70 to 100 basis points, considering that there will be no state guarantee for new loans. Reference is made to the enclosed correspondence between the Ministry of Trade and Industry and Fokus Bank (attachments 3 and 4).

Since SIVA has been, following the introduction of the 60 basis points guarantee premium from 1 July 2002, paying interest rates equal to the higher range of what their loans would cost if refinanced in the commercial market on ordinary conditions, we believe it is reasonable to conclude that there is currently no State aid element regarding SIVA’s loans from the State.

Medinnova, Enova and Statskog

Reference is made to our letter of 16 January 2003. Enova and Medinnova have not taken up loans, while Statskog has one loan, with “Grunneierfondet”, which amounts to NOK 645 000. Thus no guarantee premiums have been introduced for these enterprises.

Obligations not linked to specific loans

The transitional arrangements maintained the old guarantee regime for all obligations existing before the amendment of the Act, not only those linked to specific loans. The Norwegian Government has now decided to repeal the guarantee for obligations that are not linked to specific loans.

However, according to Norwegian constitutional law, only the Parliament can repeal existing laws that have previously been adopted by the Parliament. In this context, a formal procedure, in part described in Section 75 following of the Constitution, has to be followed. This will necessarily take some time. The Government will as soon as possible provide the Parliament with its formal amendment proposal. The Government may not instruct the Parliament to act, and therefore cannot control how soon the Parliament will act in this matter. However, the Government will request the Parliament to handle the matter as soon as possible.

Acceptance of the appropriate measures

The Norwegian Government is of the opinion that the measures communicated in this letter, together with the measures communicated in its letter of 16 January 2003, are in accordance with the proposed appropriate measures. Based on this understanding of the appropriate measures, including that the abovementioned amendment to the Act will necessarily take some time to implement, the Norwegian Government hereby signifies its agreement to the proposed appropriate measures.

Yours sincerely,

Tom Hugo-Sørensen

Deputy Director General

Marit Aaberg

Assistant Director General

Attachments:

1. Translation of the report from First Securities, the agreement between the Ministry of Trade and Industry and First Securities and e-mails and telefaxes regarding the agreement and the process of choosing an adviser (Statkraft) (Attachments 7, 8 and 9 to our letter of 16 January 2003)
2. Translation of the report from First Securities and the agreement between the Ministry of Petroleum and Energy and First Securities (Statnett) (Attachments 12 and 13 to our letter of 16 January 2003)
3. Correspondence between the Ministry of Trade and Industry and Fokus Bank
4. Translation of correspondence between the Ministry of Trade and Industry and Fokus Bank