Commission Decision of 7 July 2004 on the aid measures implemented by France for Alstom (notified under document number C(2004) 2532) (Only the French version is authentic) (Text with EEA relevance) (2005/418/EC)

Article 2 U.K.

1. The plan for restructuring Alstom, as communicated to the Commission by France on 5 December 2003 and 15 March 2004, must be fully implemented, including as regards the assets that have still to be disposed of.

2. France shall withdraw from Alstom’s capital within twelve months of the company obtaining an investment grade rating by one of the two main rating agencies. Such withdrawal shall at all events be carried out within four years of the adoption of this Decision. […]

3. Alstom shall conclude one or more industrial partnerships, within four years of the adoption of this Decision. The partnerships shall relate to significant parts of Alstom’s business. Unless otherwise agreed in advance by the Commission, such partnerships shall not involve undertakings controlled by the state, de jure or de facto, individually or jointly.

4. In the case of Alstom’s ‘Hydro Power’ business, a joint venture shall be set up […] with joint control in which Alstom shall hold a maximum of 50 % of the capital.

5. The following assets of Alstom shall be sold to a buyer which is independent of Alstom: the Valencia freight locomotive plant, transport activities in Australia and New Zealand, and industrial boilers […].

In the month following notification of this Decision, France shall submit for approval to the Commission:

(a) appropriate provisions for the establishment or stabilisation by Alstom of dedicated management to ensure that each of the business activities referred to in the first subparagraph is properly run, providing them with the means for normal development and not taking any measure that would intentionally diminish their value, for example the transfer of intangible assets (patents, licences, commercial agreements, etc.), staff, customers or sales capacity to the parent company or any other part of the Alstom group;

(b) an appropriate trusteeship and the appointment of an independent trustee who will be obliged to maintain the necessary confidentiality and ensure the proper carrying out of the management and sale of the assets referred to in the first subparagraph. Once appointed, the trustee shall begin his work immediately. If the trustee identifies irregularities, he shall notify them immediately to the Commission.

6. Business activities worth EUR 800 million in turnover (base 2002/2003) within the Alstom group, excluding the Marine sector, shall be divested within a period of […]. To be eligible, the business activities divested must cover a viable business comprising fixed assets and workforce, whose 2002/2003 turnover is representative of the level of business at the time of the divestiture, and they must not be the subject within the framework of this Decision of a past or future divestiture or be included in the joint venture provided for in paragraph 4.

7. […] and […] shall be divested within a period of […].

8. France shall submit to the Commission, every year for four years, a report validated by an expert appointed by Alstom and approved by the Commission. The report will check that the margins achieved on average each year, by subsector, on the contracts concluded by the company in the Transport sector are compatible with the business plan and, if not, do not indicate predatory pricing.

9. Alstom's corporate acquisitions in the Transport sector within the European Economic Area shall not exceed a total of EUR 200 million (company value) for a period of four years.

10. France shall implement the following structural measures to open up the French rolling stock market.:

(a) it shall send the Commission, on request, the reports of Réseau Ferré de France and the Société Nationale des Chemins de fer Français (SNCF) on the issuing of safety certificates and the technical files on which they are based;

(b) it shall send the Commission the new draft ‘rolling stock’ decree and inform the Commission, as regards each of the contracts and framework agreements referred to in point (f), whether and for what reasons the standards provided for in the decree are mandatory; the decree will enter into force by 1 January 2005;

(c) it shall withdraw the legal obligation to consult the SNCF on the issuing of safety certificates and replace it by the obligation to consult […];

(d) it shall inform the Commission on the contracts and framework agreements concluded by private contract by the SNCF and the Régie Autonome des Transports Parisiens (RATP) with Alstom, where their amount is greater than EUR 473 000, in the form of a list sent to the Commission, once a year, indicating for each of the contracts or framework agreements the reasons why the negotiated procedure was used without prior invitation to tender;

(e) it shall apply on 1 November 2004 the measures necessary for implementing Directive 2004/17/EC;

(f) it shall communicate to the Commission once a year a list of the contracts and framework agreements amounting to more than EUR 473 000 awarded to Alstom by the SNCF and the RATP following an invitation to tender and shall indicate for each contract or framework agreement how the technical specifications were formulated, as required by Article 34(3) of Directive 2004/17/EC;

(g) it shall send the Commission, on request, reports analysing the tenders submitted to the SNCF administrative board for the contracts and framework agreements awarded to Alstom by the SNCF and the RATP after having been put out to competition;

(h) it shall adopt, to enter into force by 1 November 2004, pre-contract referral arrangements in accordance with Directive 92/13/EEC.

11. France shall implement such additional measures to restructure Alstom's Marine sector as are necessary to bring the profitability threshold down from 4.5 ship orders (cruise ship equivalents) a year (average for the last five years) to […].

12. No aid other than that referred to in Article 87(2) of the Treaty, or aid granted under research projects jointly financed by the European Union, or aid covered by Regulation (EC) No 1177/2002 shall be granted to Alstom until the restructuring process has been completed and, at all events, for two years following the adoption of this Decision. No other restructuring aid shall be granted in breach of the principle that such aid should be granted once only.

13. For the purposes of monitoring compliance with the conditions set out in paragraphs 1 to 12, France shall provide the Commission with the following information:

(a) Alstom's obtention of an investment grade rating pursuant to paragraph 2 in the month following such obtention;

(b) every three months, the steps taken in relation to industrial partnerships pursuant to paragraph 3 and the results of such steps;

(c) every three months, the steps taken to set up a joint venture covering hydro power activities pursuant to paragraph 4; in the month following the conclusion of the agreement setting up the joint venture, France shall forward to the Commission supporting documents enabling the Commission to establish that the joint venture is one having joint control within the meaning of Regulation (EC) No 139/2004;

(d) in the month following their completion, each of the transactions specified in paragraphs 4 and 5;

(e) the adoption of the measures provided for in paragraph 10(c), (e) and (h);

(f) every three months, the measures taken in relation to additional restructuring of the Marine sector pursuant to paragraph 11;

(g) annual reports on the state of progress of Alstom's restructuring, supplemented by reports validating the business plan and liquidity plan.