EU: Commission finds no aid to container terminal operators in Antwerp

The European Commission has concluded that reductions in compensation payments granted by the state-owned Port of Antwerp to two container terminal operators were granted on market terms and hence do not involve State Aid within the meaning of EU rules.

The Port of Antwerp is managed by the Antwerp Port Authority, a public authority, which is fully-owned by the city of Antwerp. The Authority makes land available to companies to operate in the port area on the basis of concession agreements.

In 2004, the Antwerp Port Authority concluded concession agreements with two container terminal operators, PSA Antwerp NV and Antwerp Gateway NV, for the provision of services related to the transhipment of containers in the at the time new Deurganckdok area of the Port of Antwerp. The concession contracts were concluded for a period of 42 years, i.e. until 2046.

The agreements between the Antwerp Port Authority and the two concessionaires of the Deurganckdok area are similar to the concession contracts awarded by the Authority to other container terminal operators and include a requirement that a minimum quantity of containers is handled in each terminal every year (“minimum tonnage requirements”).

Between 2009 and 2012, PSA Antwerp NV and Antwerp Gateway NV did not to reach their yearly minimum tonnage requirements. As a result, under the concession agreements, they would have been expected to pay compensation to the Antwerp Port Authority. However, instead of collecting the compensation due from the two companies, in March 2013, the Antwerp Port Authority retroactively revised downwards the minimum tonnage requirements for the two companies. This reduced by around 80% the amount of compensation due by each of the two operators.

Following a complaint from a competitor, on January 15, 2016, the Commission opened an in-depth investigation to examine whether the compensation reductions applied by the Antwerp Port Authority were in line with EU State aid rules, and in particular whether a private operator would have accepted a similar reduction (the market economy operator principle).

The Commission found that the Antwerp Port Authority acted in the same way as a private market operator when reducing the minimum tonnage requirements for PSA Antwerp NV or Antwerp Gateway NV. As a result, the Commission concluded that no State aid within the meaning of EU rules was granted to the two concessionaires.