Restructurations et contrôle des aides d'État
The present contribution deals with the following issue : which influence has the European State aid law concerning the phenomenon of restructurings observed in the European Community ? It identifies two potentials links between this law and the various restructurings that one can observe in the European Community. The first link follows of course from the rules set by the European Commission for the granting of restructuring aids to companies in difficulty. The second link results from regional aid possibilities, framed by the conditions laid down by the Guardian of treaties. After the examination of these two fields, the study formulates a conclusion and makes two proposals for a innovative management of restructurings in Europe. Three types of restructurings are distinguished : the opportunistic restructurings, the rationalisation restructurings and the merger/acquisition restructurings. An opportunistic restructuring consists in a company relocation towards a law salaries region or benefiting from an attractive fiscal system ; a rationalisation restructuring aims to a new organisation in the processing of a company in order to make it more modern or cheaper (the restructuring in the strict sense) ; a merger/acquisition restructuring implies a change in the law situation of at least one company, a the level of the identity of its owners or in the exercise of its control. Concerning the restructuring aids, one could observe that these aids don’t favour at all opportunistic restructurings. However, they undeniably influence rationalisation restructurings and, to a lesser extent, merger/acquisition restructurings. Indeed, by nature, the Commission’s control on the restructuring aids causes rationalisation restructurings due to the fact that rationalisation is condition of the public relief. This influence seems positive because this control makes that restructuring operation credible. By the link between aid and a well-elaborated plan, by the prohibition of more than one intervention by decade, by the imposing of a substantial contribution of the beneficiary, the Commission pushes to a return to a long term profitability. The application of the guidelines leads also to some merger/acquisition restructurings. Indeed, the helped company shall regularly concede specified activity branches to others companies, i.e. what is called compensatory measures. However, it is well because, by this way, it “costs” to the helped company, that it is possible to affirm that opportunistic restructurings are avoided: a company doesn’t have profit in organizing its insolvability in order to receive the public financial support. Concerning the regional aids, one could see that the assumption according to which they favour opportunistic restructurations is not verified. Indeed, if these aids exert an influence on the location of new investments, the application of a strict proportionality of the aid measure to regional handicap prevents that the company finds an interest in relocation. In addition, it seems positive, on a community point of view, to make so that companies planning a “mobile” investment, i.e. executable a priori in a high number of countries, may be incited to locate this investment inside the Union and not outside. On the other hand, taking account that the community definition of an investment includes also the “diversification of the output of an establishment” or “a fundamental change in the overall production process”, it is normal that regional aids favour rationalisation restructurings. No obvious link appears, finally, between regional aids and merger/acquisition restructurations.
Volume (Year): t. XXII, 2 (2008)
Issue (Month): 2 ()
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