In Madrid, with the approval of the Council of Ministers of the Government of the Kingdom of Spain, the transfer of the shares of Aerolineas Argentinas of the company Iberia to the group Marsans, both of Spanish origin, was carried out at the beginning of this decade. A report by the National Audit Office (AGN, for its acronym in Spanish) says that the Argentine State did not carry out "any type of control" on the operation, "even though public interests and the rights of users may have been compromised." The work shows that the Ministry of Transport, the under secretariat of Aviation Transport and the Ministry of Finance of the Ministry of Economy did not fulfill their task of overseeing the sale. In fact, the date of the operation is unknown, even, by the Commission of Defense of the Competition, according to that same agency communicated to the AGN.
The irregularities of a transaction made outside the state controls are a sign of the progressive abandonment of the Argentine intervention in the administration of the country’s airline, an influence that was assured in the privatization decree, 1591/89, by means of the Right to veto.
In 2006, the Spanish Court of Accounts published a chronology on the work of the company Iberia to the control of Aerolíneas Argentinas S.A. (ARSA). The document states that on November 20, 1990, Iberia acquired 30% of ARSA's capital for US $ 20 million. The Argentine State, which at that time had 5% of the shares, increased its participation to 33% in 1992, in addition to administering 10% of the total package belonging to the Participated Property Program (PPP).
The context was adverse. According to the Spanish watchdog, "the crisis of the air sector", accompanied by a succession of negative balance sheets, and caused Iberia to raise the need for a "recapitalization of ARSA in at least US $ 500 million." But the Argentine government, with an economy in conflict, refused to extend the investment.
Papers: The Aerolineas privatization decree was regulated by the Aeronautical Code. Article 99 (4) of that Code stipulated that "most of the shares" should be "nominal and belong in property to Argentines with real domicile in the Republic". Therefore, Iberia could not become majority shareholder of ARSA by itself.
The deficit company needed foreign exchange. The government, which did not want to continue financing the airline, signed an agreement with Iberia in 1994 and allowed an increase of ARSA's capital stock by US $ 500 million. In that agreement, the Spanish agreed to contribute in one month the entire capital increase per se, in the corresponding proportion, and the rest through one or more local companies that Iberia itself should designate. How? For that, a tool was needed that reformulated "the restrictions imposed in the Aeronautical Code", affirms the AGN. Thus, the Presidency of the Nation promulgated decree 52/94, whereby the condition that the shares belong to Argentines with real domicile in the Republic came to include both individuals and legal entities.
With current decree 52/94, "Iberia commissioned an Argentine law firm to set up INTERINVEST SA, a company of Argentine nationality with a capital of US $ 12,000," explains the Spanish Court of Accounts. INTERINVEST would be "society Instrumentality through which Iberia would acquire the majority stake in ARSA ". That investment, which involved taking the direct and indirect majority of the capital of another company, was "expressly authorized by the Spanish Council of Ministers", asserts the control body of that country.
But the enactment of the decree was not the only gesture of the Argentine State towards Iberia. In addition, the Government undertook to eliminate the right to veto that had previously been reserved in relation to certain decisions of the administrative bodies of ARSA, which thus became controlled by the Spanish company. "That right," added the AGN "was a fundamental tool that the State had as a minority shareholder to defend public interests and ensure the continuity of service and rights of users."
The privatization decree, 1591/89, stated that "given the importance of the activity of Aerolineas Argentinas, it will be required that the majority of the capital stock, which ensures control and management of the company, is in the hands of the State and Argentine people."
However, in the recitals of Decree 52/94, the Executive argued that it was not his intention to "limit or restrict" the rules of the Aeronautical Code, because that would not "be consistent with the policy of deregulation of privatized public services."
The transfer to Marsans: Aerolineas Argentinas was administered by Iberia from November 20th 1990 until December 31st 1999, when the company's "losses" caused it to incur dissolution and liquidation under Argentine law, Clarifies the Court of Auditors of Spain. After a short-term management of American Airlines, the Spanish State Investment. The transfer came from a note from the Secretariat for Competition, Deregulation and Consumer Protection, issued on July 16, 2002, which stated that "99.21% of the shareholding in INTERINVEST SA, majority shareholder and controlling shareholder of Aerolíneas Argentinas (with 85% of the share capital), was acquired by Air Comet," said the AGN.
For the Argentine Audit it was not easy to collect transfer data between Iberia and Marsans. In 2002 he asked the Cabinet Chief for all the documentation on that transaction and the order was placed in the Technical Advisory Coordination: "No related background" with the operation, was the answer. On the other hand, the AGN consulted the General Syndicate of the Nation (SIGEN), which clarified that "it had no intervention on the matter, nor was it required in any instance." Meanwhile, the Ministry of Transport first put "all related documentation" with the sale and sale at the disposal of the AGN, but later said that "despite the linkage that the area may keep with that issue, it had no intervention." Company (SEPI), a Spanish government agency, introduced to "Master Plan" and began to command the destinations of the Argentine airline in early 2000 it was SEPI who transferred the shares of Aerolíneas to Air Comet, a member of Viajes Marsans Sociedad Anónima.
The transfer came from a note from the Secretariat for Competition, Deregulation and Consumer Protection, issued on July 16th 2002, which stated that "99.21% of the shareholding in INTERINVEST SA, majority shareholder and controlling shareholder of Aerolíneas Argentinas (with 85% of the share capital), was acquired by Air Comet ", reproduces the AGN.
For the Argentine Audit it was not easy to collect transfer data between Iberia and Marsans. In 2002 it asked the Cabinet Chief for all the documentation on that transaction and the order was placed in the Technical Advisory Coordination: "No related background" with the operation, was the answer. On the other hand, the AGN consulted the General Syndicate of the Nation (SIGEN), which clarified that "it had no intervention on the matter, nor was it required in any instance." Meanwhile, the Transport Secretariat first put "all related documentation" with the sale and sale at the disposal of the AGN, but later said that "despite the linkage that the area may keep with that issue, it had no intervention."
The Federal Government did not supervise the sale of the shares of the controlling company of ARSA and, in fact, learned of the transaction by Air Comet itself, through file 064-016960 / 2001 presented to the Competition Secretariat, Deregulation and Consumer Protection, acknowledged the ownership of INTERINVEST's majority shareholding, explained that the transaction took place in Madrid and declared it to be a company incorporated under Spanish law with its registered office in Bahía de Pollensa 21, Air Comet Building, Madrid, Kingdom of Spain.
The Audit concluded that "the clarification of article 99, paragraph 4, of the Aeronautical Code, through Decree 52/94, made it possible for the effective control and substantial ownership of ARSA to belong to a foreign company, while at the same time not knowing the shareholding composition of the companies that have direct or indirect control of INTERINVEST SA," and added:" unfortunately, in order to approve an agreement with Iberia, a confusing and legally objectionable element was introduced."