ESA opens investigation into alleged State aid to Bane NOR

The EFTA Surveillance Authority (ESA) has decided to open a formal investigation procedure regarding alleged unlawful State aid granted by Norway to Bane NOR and some contractual partners.

ESA’s decision to initiate a formal investigation procedure follows a complaint alleging that two support measures to respectively Bane NOR and some of its contractual partners constitute unlawful State aid. Bane NOR is wholly owned by the Norwegian Ministry of Transport and operates railway infrastructure as well as a fibre network along rail tracks in Norway. The measures under investigation relate to Bane NOR’s role as a fibre operator. 

The first measure being investigated concerns an allegation that Bane NOR received aid by using its publicly funded telecoms infrastructure to cross-subsidise its commercial offering of passive infrastructure and dark fibre to third parties. The complaint refers in particular to steps taken by Bane NOR to establish itself as a commercial provider of fibre infrastructure access.

The second measure under investigation concerns alleged aid provided to some of Bane NOR’s contractual partners. The complainant argues that this included better-than-market conditions in construction and operation agreements, where third parties contribute to building infrastructure in return for long-term access rights, and SWAP agreements, in which two parties exchange fibre capacity over a set period of time. 

ESA is investigating whether the two measures constitute State aid and, if so, whether they are compatible with EEA rules. 

The decision to initiate investigation proceedings does not mean that ESA has made a finding of infringement. The decision means only that ESA will proceed with an in-depth scrutiny of the measures. 

A summary of the decision will be published in the Official Journal of the European Union and the EEA Supplement. Interested parties will be invited to submit their comments within one month of the date of such publication.

A non-confidential version of the decision will be published here as soon as possible. 

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