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Reduction of minimum tonnage requirements for concessionaires in accordance with market conditions d

The management of the Port of Antwerp is the responsibility of the government body 'Gemeentelijk Havenbedrijf'.

In order to allow companies to exploit their activities in the port area, the Port Authority uses concession contracts to make the grounds of this maritime public domain available to them.

For example, in 2004 concession agreements were concluded for the area ‘Deurgangckdok’, which may be exploited for the services associated with the transhipment of containers, to the terminal operators PSA ANTWERP NV and ANTWERP GATEWAY NV.

In order for these terminal operators to acquire the enjoyment of the area, the concession agreement stipulates a minimum number of containers to be handled annually by the concessionaires in order to maintain their concession. The failure to achieve an annual minimum tonnage of containers is therefore in principle reflected in the obligation on the part of the concessionaires to pay a fee.

Since the above concessionaires did not achieve their targets between 2009 and 2012, they were in principle obliged to pay a respective compensation fee to the Port Authority.

However, the Port Authority did not collect these funds, but decided instead, in March 2013, to lower the minimum tonnage requirements with retroactive effect, which resulted in an exemption for the actors involved of at least 80 percent of the compensation fee to be paid.

This reduction was only granted to the two concessionaires mentioned above, which was a source of frustration for competitors, which subsequently led to a complaint to the European Commission, which started an investigation on 15 January 2016.

The investigation concerned the question whether the threshold reduction granted by the Port Authority was subject to the EU State Aid Rules and subsequently in accordance with them.

The European Commission has ruled that the reduction of the concession requirements was a consequence of the specific market circumstances, in which case the Commission has decided to reduce the concession requirements;

- 1° The economic crisis had just entered;

- 2° The ‘Deurgangckdok’ was a new area, which had only just opened and both concessionaires were still in a start-up phase;

- 3° Both terminal operators showed a great economic interest with regard to the Port Authority, as a result of which the latter did not want to put pressure on their relationship.

The decision of the Port Authority was taken in accordance with market conditions and, according to the European Commission's investigation, is not a form of state aid under the EU State Aid Rules.

If you want more information on the EC ruling, please contact info@kegels-co.be