No L 55/54 Official Journal of the European Communities 6. 3.93 (Acts whose publication is not obligatory) COMMISSION COMMISSION DECISION of 4 November 1992 concerning aid granted by the Spanish government to the Merco company (agricultural processing industry) (Only the Spanish text is authentic) (93/133/EEC) THE COMMISSION OF THE EUROPEAN COMMUNITIES, " Having regard to the Treaty establishing the European Economic Community, and in particular the first para- graph of Article 93 (2) thereof, After giving notice, in accordance with the Article referred to above, to the parties concerned to - submit their comments and having regard to those comments, Whereas : I By telex messages dated 20 December 1990 and 23 April 1991 the Commission, following a complaint, asked the Spanish Government for information concerning aid which it had allegedly granted to the public company known as Merco, in the form of an injection of capital amounting to Pta 5900 million. In a letter dated 27 May 1991 from its Permanent Repre- sentative, the Spanish Government confirmed that in 1990 the sum of Pta 5§ 900 million had been paid to the Merco company pursuant to a decision by its two public shareholders, the ‘Direccién General del Patrimonio del Estado’ and the Forppa (Fondo para la Ordenacion y Regulacién de la Produccién de los Precios Agrarios), in the form of an injection of capital. On the basis of the information at its disposal the Commission took the view that this injection of capital of Pta 5900 million was a measure intended to make good losses suffered by Merco and that in such circumstances a private investor operating under the normal conditions of a market -economy would not normally have provided such a subscription of capital. Accordingly, the payment was aid within the meaning of Article 92 (1) of the EEC Treaty. Since the aid threatened to distort competition and affect trade between Member States in the products concerned, the Commission decided to initiate the procedure provided for in Article 93 (2) of the EEC Treaty. By letter of 23 July 1991 the Commission requested the Spanish Government to submit its comments and to provide further information on the aid, as had been requested in the Annex to the telex of 23 April 1991. The other Member States and other interested parties were also asked to submit their comments ('). II The Spanish Government presented its comments in a letter dated 4 October 1991. It took the view that the injection of capital of Pta § 900 million was not State aid within the meaning of Article 92 of the Treaty ; the deci-. sion, taken by its public shareholders, had been based on economic criteria since the Spanish Government had decided to reorganize the company and to restrict it to profitable activities. This reorganization consisted on the one hand of the closure of the ‘oil’ division and on the other of an injec- tion of capital amounting to Pta § 900 million. The ‘oil’ division was the cause of a major part of the company’s profitability problems. In 1990 this division had cost about Pta 2022 million. () OJ No C 246, 21. 9. 1991, p. 4.