Judgment — ECLI:EU:T:2002:54
Date: 2002-02-28
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Concepts: Commission;Aid to shipbuilding
Procedure: Action for annulment - successful
Origin: Germany

Summary of the Judgment 
1. Commission — Composition — 'Leave of absence' of one of its Members — No 
effect on the legality of decisions adopted by the college in accordance with its rides of 
procedure 
(Art. 215, fourth para., EC) 
II - 1205 
SUMMARY — JOINED CASES T-227/99 AND T-134/00 
2. Commission — Composition — Independence of Members of the Commission in the 
exercise of their functions — Election to the European Parliament of a Member who 
resigns — No effect 
(Arts 213(2), first and second subparas, EC, 215 EC and 219, second and third paras, 
EC) 
3. State aid — Prohibition — Derogations — Aid to shipbuilding — Directive 
90/684 — Aid for East German shipyards — Reduction of construction capacity — 
Meaning of 'capacity' — Commission's power of appraisal — Decision declaring 
authorised aid to be incompatible with the common market on the basis of criteria 
different from those in the decision authorising that aid — Capacity limit treated as a 
limit on actual production — Manifest error of appraisal 
(Council Directives 90/684 and 92/68) 
1. A Commission decision to grant 'leave 
of absence' to one of its Members has 
no legal basis either in the provisions of 
the EC Treaty or in the Commission's 
Rules of Procedure. 
In a situation in which such a decision 
is adopted in regard to a Member who 
is resigning, it cannot therefore affect 
his status as a Member of the Com­
mission or deprive the fourth para­
graph of Article 215 EC of its legal 
force, which states that '[s]ave in the 
case of compulsory retirement under 
Article 216, Members of the Commis­
sion shall remain in office until they 
have been replaced.' The decision can­
not therefore be interpreted as a 
decision to reduce the number of 
Members of the Commission, a 
decision which only the Council, acting 
unanimously, may take under the sec­
ond subparagraph of Article 213(1) 
EC. By its decision the Commission 
merely gives the Member leave of 
absence, whilst awaiting the nomi­
nation by the Governments of the 
Member States, by common accord, 
of his replacement or the Council's 
decision not to fill the vacancy. 
Therefore, the legality of a Commis­
sion decision, adopted in accordance 
with the second and third paragraphs 
of Article 219 EC and the provisions to 
which it refers, by a majority of the 
Members of the Commission present, is 
not called in question by a Commission 
decision to grant leave of absence to 
one of its Members. 
(see paras 57-58, 60) 
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KVAERNER WARNOW v WERET v COMMISSION 
2. A retiring Member of the Commission 
who is then elected to the European 
Parliament and whose parliamentary 
mandate does not commence until the 
date on which the European Parliament 
holds its inaugural session does not fail 
to comply with his duty of indepen­
dence under the first and second sub­
paragraphs of Article 213(2) EC when, 
before that date, he takes part in a 
meeting of the College of Commis­
sioners at which a decision is adopted. 
Similarly, there is no evidence of a 
credible risk to the independence of 
that Member of the Commission before 
the new Parliament is constituted. The 
intention of a Member, set out in his 
notice of resignation, to exercise his 
electoral mandate cannot in itself prove 
the loss of independence, no more than 
the mere statement that he belongs to a 
political party. 
(see paras 74-75) 
3. Directive 90/684/EEC, as amended by 
Directive 92/68, on aid to shipbuilding 
in the former German Democratic 
Republic which, for an aid to be con­
sidered to be compatible with the 
common market, requires that there be 
a reduction in construction capacity, 
does not define the concept of capacity. 
Consequently, the Commission has a 
measure of discretion when interpre­
ting that concept. 
Moreover, although construction 
capacity is by its nature capacity for 
production purposes, that concept is 
not in itself the same as actual produc­
tion or maximum production achiev­
able under optimum conditions. A 
capacity restriction may therefore 
relate to production achievable under 
favourable normal conditions, given 
the facilities available, and not express 
an actual maximum production which 
may not be exceeded even under 
exceptionally favourable conditions. 
The Commission commits a manifest 
error of appraisal in treating a capacity 
restriction as a limit on actual produc­
tion in decisions declaring State aid to 
the shipbuilding industry incompatible 
with the common market, contrary to 
its approach in the decisions authoris­
ing that aid. 
(see paras 91, 105-106, 110) 
II - 1207