I. introduction

Дата канвертавання25.04.2016
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The Negotiations by GM to Spin Off Opel

By: Patrick E. Mears, Esq.

Partner, Barnes & Thornburg LLP

Grand Rapids, Michigan, U.S.A.
Frank Heerstrassen and Nikolai Wolff

Partners, Loschelder Rechtsanwälte

Cologne, North Rhine-Westphalia, Germany


The Weltfinanzkrise slammed into the world automotive industry with hurricane force on Sunday, September 14, 2008, when Lehman Brothers sought bankruptcy relief. The stock market selloff and other market dislocations that this bankruptcy filing induced ultimately caused the rapid plummeting of motor vehicle sales in North America, Europe and elsewhere. General Motors Corporation and its European operations of Opel, Vauxhall and Saab were especially hard hit, eventually forcing GM to market those operations. While GM agreed to sell its Saab brand separately in the context of Swedish insolvency proceedings, GM elected not to seek bankruptcy relief for the Opel/Vauxhall units but to market them through a private bidding process conducted in the Spring and Summer of 2009.

On September 10, 2009, after many twists and turns during the months-long negotiation process, GM announced that it would sell a 55% equity stake in Opel to a consortium consisting of Magna International, Inc., a global Tier I automotive supplier, and Sperbank Rossii, a Russian bank with connections to GAZ Group, a Russian auto manufacturer. Germany agreed to support this acquisition through €4.5 billion in loan guarantees to be made by the federal government and the governments of the states where Opel maintains plants. Shortly after this announcement, the Belgian and Spanish governments, in which countries Opel factories are also located, complained to the European Union’s Commissioner for Competition, Neelie Kroes, that GM’s selection of Magna/Sperbank as the winning bidder was improperly influenced by Germany’s promise of discriminatory state aid and, therefore, ran afoul of The Treaty of Rome and EU competition laws. These complaints drew a warning from Neelie Kroes to Germany that the proposed acquisition appeared to violate the competition laws of the European Union. In the wake of this intra-European Union dispute, GM management reversed its decision and, on November 3, 2009, announced that it had decided to cancel the proposed sale and retain Opel/Vauxhall as an integral part of the “New GM.”

The Opel saga, which is related in this article, has a “soap opera” quality to it; it is a story of a behemoth, multi-national corporation teetering on the precipice of financial collapse while election-oriented politicians and savvy businesspeople jockey for advantage. This story nevertheless raises important issues about how EU state aid can be used and, sometimes, misused and whether an Opel insolvency proceeding would have been a faster and more dependable vehicle for its sale. These are the basic issues that are addressed in this article.


A. General Motors Corporation

General Motors Corporation (“GM”) was incorporated in 1908 through the efforts of William Crapo “Billy” Durant, a swashbuckling, turn-of-the-century entrepreneur, through the consolidation of 13 automobile companies and 10 auto suppliers. GM steadily grew in size and stature under his direction and that of Alfred P. Sloan, who succeeded Durant as GM President in 1923. In the early 1930’s, GM overtook Ford Motor Company as the auto sales leader in the United States and maintained that position for 70 years. The 21st Century, however, has not been kind to GM. General Motors’ share of the U.S. motor vehicle market has shrunk from 50% in the 1950s to 20% as of January 2010. From September, 2008 to the present, GM has run through three CEOs, (i) George Richard (“Rick”) Wagoner, Jr., who resigned under government pressure in May, 2009; (ii) Frederick A. (“Fritz”) Henderson, who resigned under board pressure in December, 2009; and (iii) Ed Whitacre, who presently occupies this post.

In 1929, GM acquired 80% of the Opel’s stock and, two years later, purchased the remainder from the Opel family.1 Immediately prior to World War II, Opel was the largest manufacturer of motor vehicles in Europe but, in 1940, on directions from the government of the Third Reich, Opel was directed to cease civilian manufacturing and shift to wartime production. In 1946, GM reasserted control over Opel, rebuilt its bombed-out factory in Rüsselsheim, and resumed producing vehicles for the European market.2 Although Opel manufactures non-luxury cars for lower-income buyers, the Technical Development Center in Rüsselsheim is a critical center for GM’s global research and development of small-car and electric automobile technology.

B. Opel

Adam Opel established Adam Opel GmbH in Rüsselsheim, Germany in 1863 as a manufacturer of sewing machines. In 1886, Opel began to produce bicycles and, in 1899, switched to the assembly of motor vehicles. By 1914, Opel had become the largest automobile manufacturer in Germany. Upon Opel’s post-World War II rejuvenation, Opel resumed civilian vehicle production and became one of the icons of Germany’s Wirtschaftswunder in the 1950s and 1960s. Although its market share has decreased since those heady days, Opel remains an important brand in Europe. Opel has three auto assembly plans in Germany - - in Rüsselsheim (State of Hesse), Bochum (State of North Rhine-Westphalia) and Eisenach (State of Thuringia), and an engine plant in Kaiserslautern (State of Rhineland-Palatinate). Other Opel/Vauxhall plants in European Union member states are located in the United Kingdom (Ellesmere Port and Luton), Belgium (Antwerp), Spain (Zaragoza) and Poland (Gilwice). Approximately 24,700 of Opel employees are located in Germany, more than 58% of the concern’s total employees.

C. European Union

The European Community was created in 1957 when representatives of France, Germany, Italy, Belgium, Luxembourg, and the Netherlands signed the Treaty of Rome creating the European Community, more popularly known as the Common Market. Although the EU began primarily as a free trade organization, it gradually developed into a political and monetary union with a number of countries sharing a common currency, the Euro. Now known as the European Union, this supra-national organization encompasses 27 countries of which 16 belong to the Eurozone.

The EU has three primary governing bodies, (i) the European Parliament, (ii) the Council of the European Union, and (iii) the European Commission. The European Parliament is made up of elected representatives whose primary function, which it shares with the Council of the European Union, is to pass European laws proposed by the European Commission. The Council is the EU’s primary decision-making body and is also responsible for foreign, security and defense policies. Ministers from all of the member states sit on the Council. The European Commission is the executive organ of the EU that is obligated to draft proposed legislation for presentation to Parliament and the Council, to manage the day-to-day business of implementing EU policies and to enforce EU treaties and laws. The Commission is headed by a President selected by EU member states and endorsed by Parliament. There are 27 Commissioners, one representing each member state, who are responsible for overseeing specific policy spheres, e.g., Industry and Entrepreneurship, Environmental, Development, Economic and Monetary Affairs and Competition. In 2008 and 2009, the Commissioner for Competition was Neelie Kroes of the Netherlands.

As will be discussed in greater detail in Part IV below, financial aid granted by an EU member state to local businesses is restricted by various EU treaty provisions and laws that are enforced by the European Commission. Included among these laws are Articles 107-109 of the Treaty of Lisbon, which generally prohibit state aid that “distorts or threatens to distort competition by favoring certain undertakings” as being “incompatible with the internal market.”

D. The Government of The Federal Republic of Germany

From September, 2005, to September 27, 2009, the Federal Republic of Germany was governed by a “Grand Coalition” of political parties that included the Christian Democratic Union (CDU), its Bavarian ally, the Christian Social Union (CSU), and the liberal Social Democratic Party (SPD). Angela Merkel of the CDU was (and remains) the Federal Chancellor while her Vice-Chancellor, Foreign Minister and main political opponent prior to September 27, 2009, was Frank-Walter Steinmeier of the SPD. The Economy Minister during most of the period covered by this article was Karl-Theodor zu Guttenberg of the CSU.

On September 27, 2009, the nationwide elections to the Bundestag, the national parliament, resulted in a victory of the conservative parties: the CDU, CSU and the FDP, the free-market oriented Free Democratic Party. These parties thereafter formed a coalition government, which presently governs Germany. Although the issues of whether and how to rescue Opel threatened to become an election issue before September 27th, this controversy was defused after GM announced prior to the election that it had selected the Magna/Sperbank consortium as the winning bidder.

E. The Governments of the United Kingdom, Belgium and Spain

The United Kingdom, Belgium and Spain are all EU member states in which Opel/Vauxhall maintains manufacturing facilities. The Astra and Vivaro automobiles are assembled in two UK plants, Ellesmere Port and Luton, which together employ approximately 4,475 workers. Antwerp, Belgium is the home of an Opel assembly plant that produces the Astra; this facility employs approximately 2,400 workers. Another assembly plant is situated near Zaragoza, Spain, which assembles the Corsa and Meriva models and has 6,400 persons on the Opel payroll. The governments of all three of these countries were active during the Opel sale process in protecting their national interests, including the interests of their citizens who were Opel employees. Especially active in these efforts were (i) Baron Peter Benjamin Mandelson, the Secretary of State for Business, Innovation and Skills and the President of the Board of Trade in Britain’s Labour government; (ii) Belgian Prime Minister (and now EU President), Herman Von Rompuy; (iii) Flemish Prime Minister, Kris Peeters; and (iv) Elena Salgado Mendez, the Second Vice President and Minister of Economy and Finance in the government of Prime Minister Jose Luis Rodriguez Zapatero.

F. Magna International, Inc.

Magna International, Inc. is a global, Tier I auto supplier that describes itself on its website, www.magna.com, as being “the most diversified automotive supplier in the world” that designs, develops and manufactures “automotive systems, assemblies, modules and components” and also engineers and assembles “complete vehicles, primarily for sale to original equipment manufacturers (OEMs) of cars and light trucks” throughout the world. Magna has 242 manufacturing operations and 86 product development, engineering and sales centers in 25 countries. Magna’s corporate headquarters is in Aurora, Ontario, Canada, and has a key assembly plant in Graz, Austria.

Magna was founded by Frank Stronach, a native of Austria who emigrated to Canada in 1954 and, three years later, founded Magna’s predecessor, Multimatic Investments Limited, a tool and die company. In 1969, Multimatic merged with Magna Electronics Corporation Limited, which thereafter grew into the industrial giant that it is today.

G. Sperbank Rossii

Sperbank Rossii, which in English is named the Savings Bank of the Russian Federation, was established in 1841 and thereby claims the title of the oldest bank in Russia. Its primary shareholder is the Central Bank of the Russian Federation, otherwise known as the Bank of Russia, which owns approximately 60% of Sperbank’s voting shares. Sperbank, with its headquarters in Moscow, maintains over 20,000 branches throughout Russia and has banking subsidiaries in the Ukraine and Kazakhstan. Sperbank touts itself on its website, www.sbrf.ru/en, as being “the largest bank in Russia” holding “over a quarter of national banking assets.” Sperbank’s President and CEO is German Oskarovich Gref, an ethnic German who was born in the former Soviet Republic now known as Kazakhstan. Gref was trained as a lawyer and acted as Vladimir Putin’s Minister of Economic Development and Trade from 2000 to 2007.

H. The GAZ Group

The GAZ Group is a Russian automotive manufacturer with manufacturing facilities in the cities of Nizhny Novgorod (also its corporate headquarters) and Yaroslavl. This OEM was created in 2005 through a restructuring of RusPromAuto’s production assets and is controlled by Oleg Deripaska, commonly referred to in the media as a “Russian oligarch,” who owns approximately one-third of its equity. The Chairman of the Board of Directors is Bo Andersson, who prior to his joining GAZ in June, 2009, was the head of global purchasing at GM. Another board member is Siegfried Wolf, a native Austrian and Co-CEO of Magna.

GAZ Group advertises itself on its website as “Russia’s largest automotive manufacturer of light commercial vehicles, trucks, buses, cars, diesel engines, power-train components and road construction equipment”, eng.gazgroup.ru. GAZ manufacturers the Volga Silber passenger automobile, and the Gazelle and Sobol minibuses. During the negotiations for the sale of Opel to Magna/Sperbank, it was reported that GAZ would ultimately acquire the equity share to be allocated to Sperbank, thereby making the GAZ Group a possible recipient of GM’s highly-prized Opel technology. GM is also a competitor of GAZ in the Russian market, where GM sells its Chevrolet Cavalier passenger car.

III. THE OPEL NEGOTIATIONS (November 2008-November 2009)

A. The Outbreak of the World Financial Crisis and its Initial Impact Upon the Automotive Industry (September 2008 - February 2009).
Although the financial crisis had been brewing well before September 2008, the turmoil in the financial markets shook the world on September 14, 2008, when Lehman Brothers filed a petition under Chapter 11 of the United States Bankruptcy Code in the bankruptcy court in lower Manhattan. The following day, the Dow Jones Industrial Average sank 500 points with deeper losses to follow. Two weeks later, Congress passed and President George W. Bush signed into law the bill establishing the Troubled Asset Relief Program (“TARP”) to inject $700 billion into banks hard hit by the crisis.3

The American banking system was not the only sector of the economy derailed by the crisis - - the American automotive market was also off-track. From September 1 through September 15, 2008, U.S. auto sales were running at an annual pace of 15 million vehicles. Thereafter, the sales pace dropped to below 10 million vehicles.4 Like a virus, this economic contagion quickly spread across the Atlantic to Europe. In early October, Opel announced that it had ceased production at two of its plants and would produce fewer automobiles than it had planned for.5 In the same week, Ford Motor Company stated that it would lay off 200 workers at one of its plants in Germany and Daimler advised that it would maintain low production at its main plant in Sindelfingen near Stuttgart and would shut down for Christmas earlier than usual.6

In mid-November, 2008, the CEOs of the three largest American automobile manufacturers, Rick Wagoner of GM, Alan Mullaly of Ford and Robert Nardelli of Chrysler, appeared before committees of the United States Senate and House of Representatives to plead for $25 billion in emergency loans to help them survive the drastic economic downturn.7 At the same time, Opel executives held an emergency meeting with German Chancellor Angela Merkel to obtain €1 billion in government loan guarantees to protect Opel from the fallout caused by a possible GM bankruptcy. Opel sales had dropped 12% in 2009, which was twice the industry average.8 One concern of the German government, expressed by then-Economy Minister Michael Glos, was that any government aid must remain in Germany and not flow back to GM in the United States. While Merkel was meeting with Opel executives, her SPD political opponent and candidate for Chancellor in the approaching Bundestag elections, Frank-Walter Steinmeier, parleyed with Opel union leaders, declaring that he would do all that he could in order to rescue Opel.9

After Merkel’s emergency meeting with Opel executives, the government announced that it would decide by Christmas, 2008 whether it would extend financial aid to Opel and signaled the need for approval of that state aid by the EU. Although the European Industry Commissioner, Guenther Verheugen, indicated initial support for such action, the Competition Commissioner, Neelie Kroes, expressed doubt, stating that the automotive sector should not receive special treatment from member states.10

By late November, 2008, the economic crisis in Europe was worsening, resulting in political debates among members of Germany’s Grand Coalition as to the wisdom of granting state aid to industry.11 Chancellor Merkel and SPD Finance Minister, Peer Steinbrück, were reported in the news media as being opposed to state aid. However, the Minister-Presidents of the German states of Hesse and North Rhine Westphalia where Opel plants were located, Roland Koch and Jürgen Rüttgers, were advocating state economic assistance for the automotive industry.12 As of late November, 2008, auto suppliers began to catch the economic bug - - both Robert Bosch GmbH and Hella KGaA Hueck & Co. reduced employee working hours that month.13 In October, car sales in Europe had dropped 15%. Martin Winterkorn, Volkswagen’s CEO, bemoaned that “we have never before seen this type of crisis. [The auto industry must prepare for a] tough, prolonged dry spell [in which] difficult cuts and painful measures [must be taken].”14

The negotiations and debates over state aid to Opel and its possible restructuring continued into the first few months of 2009 with no apparent solution. Across the Atlantic, President Bush released $17.4 billion from TARP funds in December, 2008, to prop up GM and Chrysler for three months. In the meantime, Ford had declined to accept any government funds, preferring to go it alone. These funds came at what later proved to be a steep price for their two recipients. Bush’s executive order authorizing their release required GM and Chrysler to submit “viability plans” by February 17, 2009, describing how they proposed to return to profitability.15 As this February deadline approached, one critical event occurred - - Barack Obama was inaugurated on January 20, 2009, as the 44th President of the United States. The actions that Obama would take with respect to the “bailout” of GM would significantly influence Opel’s fate.

On February 17, 2009, GM and Chrysler filed their viability plans with the new Obama administration and its special task-force formed to address the plight of the American automotive industry. In their viability plans, GM and Chrysler requested $21.6 billion in federal aid in addition to the $17.6 billion they had already received.16 In its plan, GM proposed to cut 47,000 jobs worldwide and to close at least 12 plants.17 In Europe during this time, the German government debated whether to acquire an equity stake in Opel in return for state aid. Many in Merkel’s own CDU and in the FDP opposed the proposal although Merkel and some leaders of the SPD and the Green party supported such a measure.18 In February, GM announced for the first time that it was willing to discuss partnerships or outside investment for Opel as a means for its restructuring.19 One week after GM’s viability plan was announced, 60,000 Opel employees demonstrated en masse in support of spinning off Opel to a third party to save their jobs. Steinmeier, undoubtedly with an eye towards the September elections, said that he was doing all he could to save Opel and that it “would be obscene were [GM] to throw away European factories like a squeezed-out lemon.”20 On February 20, 2009, Saab, a GM affiliate separate from Opel/Vauxhall, commenced insolvency proceedings in Sweden, thereby increasing the pressure on GM to do something to save Opel from liquidation.21

B. GM Offers to Sell a Majority Equity Stake in Opel

1. Initial Negotiations Among GM, Interested Bidders and the German Government (March-May, 2009)

On March 2, 2009, in a statement signed by (i) the head of GM-Europe, Carl-Peter Foster, (ii) Opel’s CEO, Hans Demant, and (iii) the chief of Opel’s Work Council, Klaus Franz, GM-Europe announced that it would attempt to spin off Opel to avoid the job cuts and plant closures that would likely result from GM-Europe’s 2008 loss of €2.8 billion and its present predicament. This restructuring plan declared that Opel needed €3.3 billion ($4.16 billion) in aid from European governments in order to survive. After this plan was submitted, SPD party chief Franz Münterfering categorized Opel as a “systemic auto company” that, by definition, was “too big to fail.” SPD Finance Minister Steinbrück, however, dismissed Opel’s restructuring plan as unsustainable not deserving of state aid.22 Chancellor Merkel appeared to disagree with Münterfering by indicating that there existed “systems-critical financial institutions” but “no systems-critical industrial firms.”23

In mid-March, Germany’s newly appointed Economy Minister, Karl-Theodor zu Guttenberg, traveled to the United States to discuss Opel’s fate. Prior to his departure, Merkel indicated her preference for a new equity investor in Opel: “If we can find an investor who makes clear he sees positive prospects for Opel in a European network, we will be able to see whether we can help with normal governmental instruments such as guaranties.”24 Roland Koch, CDU Minister-President of the State of Hesse where Opel’s Rüsselsheim headquarters is located, was a bit more specific: “My conception would be the creation of a new, European Opel in which a private investor takes a stake in addition to [GM].”25

In Washington, D.C., zu Guttenberg met with Rick Wagoner, who outlined a plan for Opel in the event that GM’s revised viability plan was accepted by the Obama Administration by March 31, 2009. Wagoner also confirmed to the Economy Minister that GM would accept a minority stake in Opel.26 The German news media reported that zu Guttenberg’s visit to America and his discussions with Rick Wagoner and Obama administration officials marked a new, positive beginning in the government’s rescue efforts. According to the Berliner Zeitung:

“[t]he new economic minister’s trip to the US marked a change – Opel has been slowly sinking into crisis for almost a year, and has reached out to the federal government for help in the last few months. Only now has the government undertaken intensive, earnest talks with the heads of Opel’s parent company, GM. And for the first time they’ve approached leaders in Washington to look for a mutually acceptable solution to the crisis.”27

On March 29, 2009, under pressure from the Obama Administration, Rick Wagoner resigned as CEO of GM and was replaced on an interim basis by Fritz Henderson who previously served as GM’s President and Chief Operating Officer. The next day, President Obama announced that he had rejected GM’s business plan and would provide working capital to GM for 60 days, during which time GM was required to prepare and present a new business plan. At the same time, Obama declared that the only option for Chrysler was to find “a partner to remain viable” and that Italian automaker Fiat was the best prospect. The federal government would fund Chrysler for 30 days while it negotiated with Fiat to structure such a partnership.28 The 60-day reprieve granted to GM by the American government also provided a breathing space for the German government to arrive at a solution for Opel.29

In April, GM began to shop its controlling interest in Opel to interested purchasers. As a result, three serious bidders emerged: Fiat, Magna/Sperbank, and RHJ International, a Belgian-based investment firm. All three prospects not only negotiated with GM for this acquisition during April and May but also engaged in discussions with the German government over possible state aid to assist in the acquisition and consequent restructuring of Opel. In mid-May, zu Guttenberg proposed a plan for a trusteeship for Opel and the extension of bridge financing of €1.5 billion until the acquisition of Opel was completed.30 The trust would insure that this interim financing would be used solely to maintain Opel operations and production prior to the acquisition and would not be siphoned off by GM for use in the United States.31 The deadline for establishing the trust and extending bridge financing was May 28, 2009, which is when Opel would have no other sources of funds to keep its doors open.32

On May 25th, three days away from the deadline, Der Spiegel reported that Merkel and many of her Ministers including Frank-Walter Steinmeier supported the proposal submitted by the Magna/Sperbank consortium, as did the Obama Administration and GM. An acquisition by Magna would transform it overnight into Europe’s largest carmaker. With its GAZ Group connections, Magna expected to capture a 22% market share in Russia and to increase Opel production in German plants. The Magna plan would grant a 10% equity interest in Opel to its employees. In return, Magna was requesting state aid from Germany in the form of loan guarantees totaling €4.5 billion. Financing for the acquisition would be provided by Commerzbank, Germany’s second-largest bank, in the amount of €4 billion. There would be job cuts at Opel’s German plants of approximately 5,000 employees. Magna proposed to close the Antwerp and Luton plants and to shift some production from the Zaragoza plant to German plants.33

On May 22, 2009, the American government loaned GM $4 billion to continue operations, making the amount loaned by the United States to GM since December, 2008 to total $20 billion.34 On May 27, 2009, in marathon, 11-hour negotiations between GM and representatives of the German government in Berlin, GM made a surprise demand for an additional €300 million aid.35 Two days later, GM’s Board of Directors met in New York to plan its much-anticipated Chapter 11 filing and on Sunday, May 31st, after two days of meetings, GM’s Board of Directors voted to approve the commencement of GM’s Chapter 11 case in the United States. The next day, GM’s lawyers filed bankruptcy petitions in bankruptcy court in lower Manhattan, joining Chrysler there. In the midst of all of this activity, the German government had agreed to back the Magna/Sperbank offer and, as planned, moved to establish the Opel Trust.

2. Continuing Sale Negotiations and GM’s Announced Approval of the Magna/Sperbank’s Offer (June, 2009-September 10, 2009)
After GM commenced its Chapter 11 case, the reorganization “plan” fashioned by GM management and the Obama Administration centered on a sale of GM’s core assets, such as its Buick, Cadillac, Chevrolet and GMC divisions and the stock in Opel/Vauxhall, to a new entity, NGMCO, Inc. As a result of the sale, the acquiring corporation changed its name to “General Motors Corporation” - - the “New GM.” Its shareholders were the United States government (holding a 60% equity interest), the Canadian government, existing bondholders and the United Auto Workers union. The other assets, such as Pontiac, Oldsmobile, Saturn and Hummer, remained with the Chapter 11 debtor, renamed as “Motors Liquidation Corporation.” This asset sale and consequent restructuring was approved by the bankruptcy court and the asset sale closed on July 10, 2009.36

In June, 2009, after the German government’s decision to support the Magna/Sperbank bid, a debate arose in political circles over the wisdom of extending state aid to Opel. Wolfgang Franz, the Chairman of the German Council of Economic Experts and economics professor at the University of Mannheim, expressed worries about the Opel example being followed by other troubled national enterprises: “Following the state measures for Opel, the danger of a flood of further state interventions is very large, especially given the approaching campaign.”37 Justus Haucap, the chief of Germany’s Monopolies Commission and economic professor at Heinrich Heine University in Düsseldorf, announced his reservations about state intervention in the free market economy: “I am growing concerned that we are taking giant strides away from elementary principles of the market economy and I don’t know if it can be reversed after the general elections.”38 It was reported that Economy Minister zu Guttenberg opposed state aid for Opel and favored an Opel bankruptcy “but only backed down after Merkel made her position clear.”39

In August, 2009, German expectations built that the board of directors of the New GM would formally approve the sale of a 55% equity interest in Opel to Magna/Sperbank. The board, however, at a meeting conducted on August 21st passed on the question, thereby causing widespread consternation in Berlin.40 Der Spiegel reported on August 24, 2009, that the primary driver of the Grand Coalition’s support was the consortium’s decision “to keep more Opel jobs in Germany than any of the other bidders . . . . In order to lubricate the Magna’s deal with GM, the German government has said that if their preferred bidder is accepted by GM, they will provide €4.5 billion ($6.4 billion) in aid to support Opel’s operations.”41 This same article explained the reasons for GM’s perceived reluctance to approve the Magna transaction:

“GM clearly doesn’t see the things the same way [as Berlin]. And this is where what Merkel has described as a conflict of interest [between GM and the German government] arises. GM says it would prefer the bid from Belgian investment firm RHJ International because with that bidder’s proposed plan, GM might be able to reintegrate Opel once current financial issues have been resolved. Whereas under Magna’s plan, GM only gets a minority shareholding and would lose influence over Opel’s production and distribution. Analysts also suggest that GM is concerned about the possibility of GM patents and other intellectual property falling into competitor’s hands. . . . There are also fears that GM, which is now doing better financially, may not even sell Opel.”42

On August 25, 2009, the Financial Times, The Wall Street Journal, the New York Times and other news media reported that the GM board instructed management to study alternatives to an Opel sale including “a $4.3 billion financing plan to revive Opel and . . . Vauxhall as GM units.”43 According to Der Spiegel, “Opel remains important to GM partly because of its development center in Rüsselsheim near Frankfurt, where the platform for all GM mid-range cars has been developed. German engineers had a major role in designing the great hope of the GM group, the Chevy Volt electric car.”44 This article intimated that a decision would be finally made at GM’s next board of directors meeting on September 8 and 9.

As this drama was unfolding, there were occasional press reports of other EU member states’ anger over what they perceived as Berlin’s application of economic pressure on GM to accept the Magna/Sperbank bid in order to save German jobs and plants. On May 27, 2009, the day of the all-night meeting in Berlin of German political leaders previously mentioned, Herman von Rompuy, the Belgian Prime Minister, “wrote to the European Commission urging the EU to make sure that a decision regarding the future of GM’s holdings in Europe . . . be fair to all involved.”45 On August 24, 2009, the German press reported that Baron Peter Mandelson of the British government had “criticized Merkel for putting too much pressure on the Americans over the Opel deal.”46 Even the Spanish autoworkers union joined this chorus by accusing Berlin of “brazen pressuring” and the Flemish Prime Minister had “threatened to bring German state aid before European competition authorities.”47

On September 10, 2009, GM announced publicly that its board of directors had approved the sale of 55% of its equity in Opel/Vauxhall to Magna/Sperbank but that certain, “important points” had to be resolved by the parties before the transaction could close.48 GM-Europe issued a statement identifying the following demands of GM as preconditions to closing: (i) delivery of a written confirmation from employee representatives that they would agree to cost-saving measurers; and (ii) completion and submission of a “definitive finance package from the German government and states where Opel has plants in the country.”49 According to contemporaneous press reports, the basic terms of the sale were the following:

  • Magna/Sperbank would jointly receive 55% of Opel’s stock

  • GM would retain 35% of Opel’s equity and the employees would receive the remaining 10%

  • all four German plants would remain open

  • the Antwerp plant would be closed

  • 10,000 jobs would be cut across Europe but only 3,000 German workers would be dismissed

  • GM would continue to develop vehicles internationally with Opel

  • the German federal government and the states of Hesse, North Rhine-Westphalia, Rhineland-Palatinate and Thuringia would provide loan guarantees totaling €4.5 billion

  • Magna would be primarily responsible for Opel’s business

  • several billion Euros would be invested in German plants

  • Opel would be granted increased access to the Russian market

  • GM would retain a veto right over activities that could result in the transfer of technology to Russian competitors.50

German politicians exulted over this news, coming as it did only 17 days before the Bundestag elections. Chancellor Merkel said that the government “overwhelmingly welcomed this decision” and that the result was “in line with what the German government had wished for . . . . [T]he patience and determination of the German government had been rewarded.”51 There was rejoicing in Russia also; the ailing GAZ Group would now obtain a new lease on life.52 Vladimir Putin, upon hearing the news of GM’s acceptance of the Magna/Sperbank offer, remarked that GM had made “the right choice with a clear amount of social responsibility” and that he hoped “that this is one of the first steps that will take us towards real integration into the European economy.”53 An unidentified Magna “insider”, however, was much more reserved in his reaction. According to Der Spiegel, this source remarked that “we are not yet through this.” GM would only be a dependable business partner “only once the deal is signed.” He continued by emphasizing that, during the sale negotiations, too many people had been “led astray over and over again.”54 These would prove to be prophetic words indeed.
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