Over the past week steelworks in the UK have ceased production one after the other. First SSI in Redcar, then Caparo and Tata Steel. The basic reason for this is that the global price of steel has fallen significantly from $500 a tonne when SSI spent £1bn on taking the Redcar plant it acquired from Tata out of mothballs five years ago to $300 a tonne now. Even without looking at the economics in any detail that sort of a price crash in such a short period of time would cause any business serious difficulties and even more so in an industry for commoditised products with typically low margins like steel.
Many commentators have said, “surely something can be done”. Britain has a long and proud industrial tradition in the manufacture of steel. Middlesbrough even briefly had a league football club called Middlesbrough Ironopolis and at one point produced more steel than the rest of the world combined. It seems wrong that apparently at the stroke of a liquidator’s pen so much history and so many jobs could vanish. While it seems that Tata Steel will be mothballing its remaining plant (as it did with Redcar in 2008*), the furnaces have been switched off at Redcar. This means that they cannot subsequently be restarted so this really is the end for much British production. But, the sad reality is that there is probably nothing which can be done quickly enough to save production, jobs and heritage, even if the money could be found to support the steel industry until global prices rose sufficiently to make it viable again (and that itself is unlikely to happen while there is substantial overcapacity elsewhere in the world).
However, even if there were the means for the government to afford to rescue British steelmakers, there’s a bigger obstacle in the form of the EU State Aid rules. In brief, these prohibit the provision of state support where that could distort competition. In a market economy that means that bailing out bankrupt businesses is almost always prohibited. There are provisions for notifications of proposed aid to be made to the European Commission to seek approval and these have, for example been used when RBS and Lloyds/HBOS were rescued during the crash of 2008. The approvals granted then were subject to significant conditions involving divestments of profitable parts of the business and spinning off divisions which had too large a share of the market. These were then updated later in the process of nursing those banks back towards health to include prohibitions on paying out dividends.
Well, why not provide aid to the steel companies and have some conditions like this? Unfortunately, steel has been considered a special case, along with coal, since the European Coal and Steel Community (ECSC) Treaty of 1952 which predated the Treaty of Rome establishing what is now the EU (the existence of this treaty and the community it established is the reason you sometimes still hear references to the European Communities rather than European Community, ECSC, the European Atomic Energy Community and the EEC were merged in 1965 and the UK joined the merged Community in 1972). The ECSC Treaty arose in the aftermath of World War II and specifically sought to create a single market across its signatory states for coal and steel. The reason for this is that coal and steel were at the time the raw materials for the building of national military strength. By looking at capacity requirements on a transnational basis the thinking was that it would not be possible for any country to ramp up production in preparation for building a load of tanks, planes and warships as had occurred prior to both World Wars. Article 4(c) abolished and prohibited “subsidies or state assistance… in any form whatsoever” and the Treaty more broadly set out the basis for competitive markets in coal and steel to operate in the absence of such subsidy.
The ECSC Treaty expired after 50 years in 2002 and the case law and guidance which had built up over the previous 50 years on what was covered by the prohibition of subsidies was summarised in the Commission’s Notice under EU law of 19 March 2002. This was titled “Rescue and restructuring aid and closure aid for the steel sector” and covered two different scenarios. First, the rules to apply in respect of aid for rescuing or restructuring steel firms in financial difficulties and second, the rules in respect of assisting steel workers who lost their jobs when steel works closed.
Article 1 of the Notice concludes:
“In these circumstances [referring to prior decisions], the Commission considers that rescue aid and restructuring aid for firms in difficulty in the steel sector …are not compatible with the common market.”
Under the EU State Aid laws, it is up to the Commission to decide, where a proposed aid package is notified to it (such as with RBS), whether that aid package is “compatible with the common market” and therefore can be approved. This Notice makes it clear that the Commission does not have any power to determine whether aid to bail out a steel company is compatible with the common market by deeming that it never would be. Although the Notice expired in 2009, this is very unlikely to make any difference at all to the position because the previous history of the industry and its regulation by the Commission is so clearly against the provision of such aid in any circumstances. The Commission would technically have discretion to consider a notification, but it is difficult to see how it could conclude that aid of a form which had been prohibited for 57 years could now be seen as compatible with the common market. This can be simply illustrated by putting yourself in the position of say a German steel maker which had managed to remain solvent despite the drop in steel prices. That business would rightly feel aggrieved that the reward for having run itself so as to be able to bear a 40% drop in steel prices was to find its British competitors being given a handout to let them carry on trying to win business from them.
So, why not do as Nigel Farage suggested and simply ignore the EU rules? After all, apparently we Brits are far too overzealous and scrupulous about complying with them, whereas those perfidious Europeans simply ignore them if they aren’t in their national interests. The problem here is that the sanction for illegal state aid is that the amount provided has to be repaid immediately and in full. As the businesses in question here are bankrupt, if the aid is considered to be a loan which is repayable when the ECJ gets round to making an order, the value of those loans would have to be calculated on the basis of the sort of interest rates which a significantly distressed borrower might have had to pay (ie a very high interest rate!). It is not too fanciful to imagine that SSI, Tata and Caparo would not wish to borrow at those sorts of rate and so would not accept an offer of aid, which is probably why one thing which has not been reported is any of those companies complaining they couldn’t get any financing from the government. It is also worth noting that when in 1993 the Italian government wanted to write off €4bn of debts for the Italian steelmaker, Ilva, as part of the preparations for privatisation this was blocked by the Commission. This is also noteworthy because investment by a state in a nationalised industry with the intention of maximising the return on privatisation is something which is generally allowed as long as that investment is proportionate to that aim.
An alternative might be to nationalise and then pump whatever was needed in. At least this would in theory take away the risk to the business of repayment, right? No, unfortunately not, the Commission isn’t that stupid! It would be as if after the government bailed out RBS it was told it was not allowed to guarantee its massive debts. Instant collapse of RBS. Or here, instant collapse of “National Steel”. At the moment, the Commission is in fact investigating a complaint about the aid Italy has given to Ilva this year (Ilva having been renationalised in January to protect it from the consequences of breaches of environmental law) so nationalisation is no magic bullet either,
In summary, while remaining in the EU, the state bailing out the steel companies is not an option. It probably wouldn’t be an option even if we were outside the EU as enabling them to export steel at market price while it cost 40% more to produce would be a pretty clear violation of the anti-dumping rules, but that is another set of laws entirely (as is the question whether the global market price has been artificially depressed by the Chinese or Russians subsidising exports – which might in theory provide a defence were either of them to bring an anti-dumping case against a hypothetical non-EU UK). The best we could do would in those circumstances would be to require the use of domestically produced steel by British users of steel for products which were not to be exported.
Sadly, those who think more could be done are I think indulging in wishful thinking.
* After Redcar was mothballed in 2008 I advised various public sector funding bodies and possible users of the site on what uses for the facilities could be supported by the state without falling foul of the State Aid rules. From memory, these were largely confined to using the testing and laboratory facilities to develop new product prototypes and research rather than any form of commercial production. I did enjoy a few Parmos while taking the bracing sea air though.