The European Commission has approved an up to €34.5 billion German aid measure to recapitalise energy company Uniper SE (‘Uniper’).
The measure was approved under Article 107(3)(b) of the Treaty on the Functioning of the European Union (‘TFEU’), recognising that the EU economy is experiencing a serious disturbance, in coherence with the principles set out in the State aid Temporary Crisis Framework, adopted by the Commission on 23 March 2022 and amended on 20 July 2022 and on 28 October 2022, and the principles of the 2014 Rescue and Restructuring Guidelines.
The German recapitalisation measure
Uniper, currently majority-owned by Fortum Oy of Finland, is the largest gas provider in Germany and one of the main gas traders in Europe. It provides electricity or gas to over 420 local municipal utilities in Germany, out of a total of around 900. Moreover, Uniper is Europe’s fourth-largest gas storage company, with its gas storage volume representing about 25% of Germany’s total gas storage. Following Russia’s aggression against Ukraine and the subsequent disruption of gas deliveries from Russia, Uniper has incurred serious losses which have put at risk its viability.
In this context, Germany notified to the Commission its plans to grant up to €34.5 billion for the recapitalisation of Uniper. The measure will allow Uniper to keep serving its customers and will help avoid serious disruption on the German natural gas market.
The recapitalisation of Uniper by Germany comprises:
- An immediate cash capital increase of €8 billion, which will be subscribed at a price of €1.70 per share.
- An authorised capital amounting to up to €26.5 billion. Germany intends to pay this capital as follows: (i) up to €6.5 billion to be granted by the end of 2022 to cover for replacement cost in 2022, and (ii) up to €20 billion to be granted on a quarterly basis in 2023 and 2024 for the replacement cost accumulated in the preceding quarter, therefore with exact amounts to be determined based on costs arising over time. The replacement cost covers the difference between the cost incurred by Uniper to purchase gas on the gas market at prevailing higher prices, and the price at which Uniper would have been entitled to receive this gas under previous long-term contracts with Russian suppliers. As of 2023, Germany will pay the capital support to Uniper ex post on a quarterly basis, i.e. after the contracted deliveries have been made and the prevailing upstream purchase price is known. 30 % of the profits of Uniper from other activities will be used to cover part of the replacement cost, and only the remainder will be covered by the measure. The gas purchased will serve exclusively to meet pre-existing contractual obligations of Uniper under contracts with downstream customers, many of which are municipal energy suppliers in Germany, which were concluded before 9 August 2022, and only for quantities that were covered by delivery obligations under long-term contracts with Russian suppliers that were concluded before the current crisis started, to the extent those suppliers do not meet their supply obligations towards Uniper.
The Commission’s assessment
The Commission assessed the measure under EU State aid rules, in particular Article 107(3)(b) TFEU. In its assessment, the Commission has also followed the principles set out in the State aid Temporary Crisis Framework and in the 2014 Rescue and Restructuring Guidelines.
The Commission found that the recapitalisation measure notified by Germany complies with the following:
- Conditions on the necessity, appropriateness and size of the intervention: the measure aims at restoring the financial position and liquidity of Uniper in the exceptional situation caused by Russia’s war of aggression against Ukraine and the subsequent disruption of gas deliveries, while maintaining the necessary safeguards to limit competition distortions. The Commission found that the aid amount does not exceed the minimum needed to ensure the viability of Uniper, and it will not go beyond restoring its capital position compared to before the energy crisis. This will be ensured in two ways: first, the losses that can be covered by the aid are determined by the replacement cost for pre-existing contracts; and second, a claw-back mechanism by which Germany commits that Uniper will return to the State all additional equity gained by the end of 2024 compared to its equity position at the end of 2021;
- Conditions on the State’s entry: the recapitalisation aid will prevent an insolvency of Uniper, which would have serious consequences for Germany’s gas market. Germany will submit to the Commission a long-term viability assessment for Uniper and its subsidiaries by the end of March 2023; if viability cannot be demonstrated, Germany will have to notify to the Commission a restructuring plan;
- Conditions regarding the exit: Germany committed to work out a credible exit strategy by the end of 2023, with the aim to reducing its shareholding in Uniper to not more than 25 % plus one share by end 2028 at the latest, otherwise Germany will have to notify to the Commission a restructuring plan;
- Conditions regarding governance and acquisition ban: until the end of 2026 or until when Germany will reduce its shareholding in Uniper to not more than 25 % plus one share, whatever the earlier, Uniper (i) will be subject to strict limitations as regards the remuneration of its Board of Management, including a ban on bonus payments; and (ii) will not to publicise the State support as a competitive advantage. In addition, until the end of 2026, Uniper will be prevented from acquiring a stake in other companies, unless this is essential to ensure its long-term viability;
- Commitments to preserve effective competition: Uniper will divest certain parts of its business, which represent a significant part of its earnings before interest, taxes, depreciation, and amortization. This includes notably the Datteln IV power plant in Germany, the Gönyu power plant in Hungary and a number of international subsidiaries. Uniper will also release parts of its gas storage and pipeline capacity bookings, making them available for competitors. Those measures are accompanied by business strategy adjustments which will allow increased competition in the market, e.g. by limiting the long-term contracts and sales to business clients;
- Public transparency and reporting: Uniper will have to publish information on the use of the aid received and on how it supports activities in line with EU and national obligations linked to the green and digital transition.
- Monitoring: A trustee, who will have to be appointed by Uniper and approved by the Commission, will monitor and ensure, under the Commission’s instructions, compliance with the decision, including the different commitments. The trustee will report periodically to the Commission.
The Commission concluded that the recapitalisation measure will contribute to prevent serious disruption on the German natural gas market: the measure aims at restoring the balance sheet position and liquidity of Uniper in the exceptional situation caused by Russia’s war of aggression against Ukraine, while maintaining the necessary safeguards to limit competition distortions. It is necessary, appropriate and proportionate to remedy a serious disturbance in the economy of a Member State, in line with Article 107(3)(b) TFEU and the principles set out in Temporary Crisis Framework and the 2014 Rescue and Restructuring Guidelines.
On this basis, the Commission approved the measure under EU State aid rules.
Background
The State aid Temporary Crisis Framework, adopted on 23 March 2022 and amended on 20 July 2022 as well as on 28 October 2022 , enables Member States to use the flexibility foreseen under State aid rules to support the economy in the context of Russia’s war against Ukraine.
Sanctioned Russian-controlled entities are excluded from the scope of these measures. The Temporary Crisis Framework will be in place until 31 December 2023 for all measures. With a view to ensuring legal certainty, the Commission will assess at a later stage the need for an extension.
The Temporary Crisis Framework provides for the following types of aid which can be granted by Member States: (i) limited amounts of aid; (ii) liquidity support in the form of State guarantees and subsidised loans; (iii) aid to compensate for high energy prices; (iv) measures accelerating the rollout of renewable energy; (v) measures facilitating the decarbonisation of industrial processes; and (vi) measures aimed at supporting electricity demand reduction.
Other types of aid are also possible on a case-by-case basis, subject to conditions, including support for recapitalisation measures where such solvency support is necessary, appropriate and proportionate.
According to the State aid Temporary Crisis Framework, companies severely affected by the current crisis may receive solvency support when private sources alone are not sufficient. Where, without such solvency support, companies would cease or downsize operations and when this would threaten energy markets or other markets which are of systemic importance for the economy, such solvency support might be considered compatible based on Article 107(3)(b) TFEU.
The Commission considers the following general principles as particularly relevant in the assessment:
- The aid must be necessary, appropriate and proportionate and must in any case not exceed the minimum needed to ensure the viability of the company.
- A company belonging to or being taken over by a larger business group is not eligible for aid, except where it can be demonstrated that the company’s difficulties are not the result of an arbitrary allocation of costs within the group, and that the difficulties are too serious to be dealt with by the group itself. In such cases, a substantial contribution by the group to the costs of the solvency measure will normally be required.
- State aid must be granted on terms that afford the State a reasonable remuneration, such as an appropriate share of future gains in value of the beneficiary. The latter must be proportional to the amount of State equity injected, compared to the equity remaining after losses, including those foreseeable in the absence of the aid measure, have been accounted for.
- Where the aid takes the form of subordinated debt or other hybrid capital instruments, the overall remuneration of such instruments must adequately factor in the characteristics of the instrument chosen, including its level of subordination and all modalities of payment.
- The set-up of appropriate safeguard measures to limit potential competition distortions, in line with the principles set out in the 2014 Rescue and Restructuring Guidelines.
- For each beneficiary, Member States must undertake a long-term viability assessment and, where considered appropriate by the Commission, notify a restructuring plan in accordance with the Rescue and Restructuring Guidelines within a specified period of time.
Under the Commission’s Guidelines on rescue and restructuring aid, Member States may support companies in difficulty, under certain strict conditions. In particular, for restructuring aid to be approved, the restructuring plan must ensure that the viability of the company can be restored without continued State support, that the company contributes sufficiently to the costs of its restructuring and that distortions of competition created by the aid are addressed through compensatory measures, including in particular structural measures.
More information on the Temporary Crisis Framework and other actions taken by the Commission to address the economic impact of Russia’s invasion of Ukraine can be found here.
The non-confidential version of the decision will be made available under the case number SA.103791 in the State aid register on the Commission’s competition website once any confidentiality issues have been resolved. New publications of State aid decisions on the internet and in the Official Journal are listed in the Competition Weekly e-News.
Quote(s)
Many importers of Russian natural gas are currently not being served. This has severe consequences for customers and for the German economy. Today’s decision to recapitalise Uniper will ensure that gas continues to flow and will avoid serious disruption on the German natural gas market, to the ultimate benefit of businesses and private households. At the same time, the public support will come with strings attached to limit undue distortions of competition, including a commitment to submit a clear exit plan.
Margrethe Vestager, Executive Vice-President in charge of competition policy – 20/12/2022
