Guest Post: Air Berlin Lufthansa loans complicates the purchase

Lufthansa may have difficulty in buying Air Berlin.
The credit of the Federal Air Berlin will probably allow the EU Commission as “rescue aid”. If Lufthansa gets the contract, but it would be associated with risks. Underdog bidder could complain.

The federal loan to Air Berlin in the amount of 150 million euros is expected to approve the European Commission as “rescue aid”. This, however, significant legal consequences entailed, which were not mentioned in the previous discussion.
Rescue aid may be granted only in compliance with the “in difficulty from the European Commission for the rescue and restructuring of companies.” You have to be repaid within six months.
not only Air Berlin but also any company that appropriate divisions of Air Berlin liable for repayment acquires. As long as Air Berlin had only private creditors, they were free to decide that shares of the company should be sold as part of bankruptcy proceedings to whom and at what price. This situation has changed due to the rescue aid the federal government in a serious way.

Especially the slots are crucial
Air Berlin can only repay this loan if all divisions of the company are sold at the highest price. the federal government must to the repayment of their even privileged in insolvency Darlehns not waived in whole or in part, in order to allow a politically motivated buyer a lower purchase price.
The insolvency of Air Berlin consists mainly of the valuable landing rights ( “slots”) at major airports in Germany. These slots are not independently tradable, but can only be sold together with the corresponding business unit, including under takeover of staff.

Air Berlin Bankruptcy: The strange near the Federal Government to Lufthansa

However, these slots do not reach the value of the loan granted by the federal government. Air Berlin had written down the verge of insolvency the value of these off and landing rights from 176 million to 80 million euros.
Contracts can be void
A corresponding division of Air Berlin, tie in with the certain slots, so you have to be sold at the highest price so that the liquidator of Air Berlin as possible can pay back the federal loans entirely or at least as far as any.
If the liquidator of Air Berlin sell individual divisions below their market value and therefore can not pay back the federal loans, the legal nature of this loan would change. then a European law aid from an authorized rescue aid. This leads to the nullity of the underlying agreements and action rights of non-beneficiary competitors.
Therefore, it is still by no means certain that Lufthansa can take over without further large portions of Air Berlin ado. This is even not certain when the cartel would raise objections against this. Lufthansa would have to ensure the same time rather have actually taken over for the part of Air Berlin paid the “market price”.
Shareholders’ rights limited
Such a sales process can easily interfere with third buyers – unsolicited – offer a higher purchase price. At that moment, the amount paid by Lufthansa would no longer be the market price.
This applies even if an auditor had previously certified the adequacy of the price. In this sense, the Austrian Constitutional Court had ruled on a sale of land by the government in the year of 2010.
With her loan, the federal government has the private autonomy of the private shareholders of Air Berlin therefore considerably restricted. This problem may be the liquidator of Air Berlin only be solved by opening a transparent bidding process for all divisions of Air Berlin.
Only such a bidding process can in the current situation to ensure competitive prices. Political considerations whether Air Berlin should be maintained as a separate airline or not, may not play a role.

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References:

1. https://en.wikipedia.org/wiki/Loan_sale
2. https://www.paydaychampion.com/
3. https://www.bloomberg.com/news/articles/2018-02-01/china-is-said-to-urge-crackdown-on-m-a-loans-used-to-buy-land

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