L 11/46 Official Journal of the European Communities 16.1.2001 COMMISSION DECISION of 20 September 2000 amending Commission Decision 1999/395/EC on State aid implemented by Spain in favour of Sniace SA, located in Torrelavega, Cantabria (notified under document number C(2000) 2741) (Only the Spanish text is authentic) (Text with EEA relevance) (2001/43[EC) THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Communities and, in particular, the first paragraph of Article 88(2), Having called on interested parties to submit their comments pursuant to the provisions cited above ('), Whereas: 4) ( ( ( ( 1 2 3 4 ) ) ) ) 0] 0] o] I. BACKGROUND A. Commission Decision 1999/395/EC (?) By its decision to open the procedure provided for pursuant to Article 88(2) of the Treaty regarding certain measures undertaken in favour of Sociedad Nacional de Industrias y Aplicaciones de Celulosa Espanola SA (?), (hereinafter ‘Sniace’), the Commission expressed its doubts whether the repayment agreements between Sniace and the wages fund Fogasa and the rescheduling agreement between Sniace and the Social Security Treasury, among other measures, constituted compatible State aid within the meaning of the Article 87(1) of the Treaty. By its Decision 1999/395/EC, the Commission came to the conclusion that the treatment of Sniace's debts, through the abovementioned agreements, were not consistent with prevailing market conditions in so far as the rate of interest was below market rates. Accordingly, the Decision stated that, the abovementioned agree- ments were incompatible with the common market. Spain challenged Decision 1999/395/EC before the Court of Justice by application lodged at the Court Registry on 24 December 1998 (Case C-479/98). The Decision was also challenged by the beneficiary, Sniace, before the Court of First Instance by application lodged at the Court Registry on 24 August 1999 (Case T-190/ 99). Both cases are currently pending. B. The judgment of the Court of Justice of the Euro- pean Communities of 29 April 1999 in case C- 342/96, Spain v. Commission (), relating to State aid granted by Spain to Tubacex (hereinafter the ‘Tubacex judgment’) On 29 April 1999 the Court of Justice delivered its judgement in Case C-342/96 Spain v. Commission on C 110, 15.4.2000, p. 33. L 149, 16.6.1999, p. 40. C 49, 14.2.1998, p. 2. [1999] ECR 1-2459. State aid granted by Spain in favour of Tubacex (herein- after the Tubacex judgment). The Court annulled Commission Decision 97/21/ECSCEC (°), which had declared as incompatible aid to Tubacex the resche- duling agreements between Tubacex and the Social Security Treasury and the repayment agreements between Tubacex and the Fogasa, in so far as the rate of interest was below market rates. In its ruling the Court concluded that Fogasa does not award loans to undertakings in liquidation or in difficul- ties, but settles all valid claims put forward by employees with money which it pays and then recovers from the undertakings. Moreover, Fogasa may conclude repay- ment agreements enabling it to reschedule the sums payable or to make them payable by instalments. Similarly, the Social Security Fund may agree to resche- dule the payment of debts in respect of social security contributions or to their payment by instalments. The Court noted that in these repayment and resche- duling agreements, the State did not act as a public investor whose conduct must be compared with the conduct of a private investor laying out capital with a view to realising a profit but as a public creditor which, like private creditor, seeks to recover sums owing to it. The interest normally applicable to that type of debt is intended to make good the loss suffered by the creditor because of the debtor's delay in performing its obliga- tion to pay off its debt, namely default interest. If the rate of default interest applied to the debts of a public creditor is lower than the rate charged for the debts owed to a private creditor, it is the latter rate which ought to be charged. Based on the above arguments, the Court annulled Decision 97/21/ECSCEC to the extent that it declared the measures to be incompatible with the EC Treaty. () OJ L 8, 11.1.1997, p. 14.