Judgment;Summary — ECLI:EU:C:2020:754
Date: 2020-09-24
Language of the case: German
Court formation: Tenth Chamber
Subject matter: State aids;Competition
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
9 July 2019 
Referring court: 
Verwaltungsgericht Berlin (Administrative Court, Berlin, Germany) 
Date of the decision to refer: 
17 June 2019 
Applicant: 
NMI Technologietransfer GmbH 
Defendant: 
EuroNorm GmbH 
  
Subject matter of the main proceedings 
Compatibility of aid with the internal market; definition of an SME; undertaking 
controlled by public bodies  
Subject matter and legal basis of the request 
Interpretation of EU law, Article 267 TFEU, in particular 
Interpretation of Commission Regulation (EU) No 651/2014 of 17 June 2014 
declaring certain categories of aid compatible with the internal market in 
application of Articles 107 and 108 of the Treaty on the Functioning of the 
European Union (OJ 2014 L 187, p. 1) (‘Regulation No 651/2014’) 
Questions referred 
1. Can a limited liability company which carries out an economic activity not 
be regarded as a small and medium-sized enterprise (‘SME’) pursuant to 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-516/19 
 
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Article 3(4) of Annex I to Regulation No 651/2014 on the ground that 90% of its 
share capital is held by a foundation established under civil law in whose Board of 
Trustees of 17 members, which is not empowered to manage the foundation, two 
of the members are representatives of ministries, one is the mayor of a city, one is 
the rector of a university, three are professors of that university, one is the 
president of a separate institute of higher education and one is the director of a 
chamber of commerce and industry? 
2. Are State universities, institutes of higher education and German chambers 
of commerce and industry public bodies within the meaning of Article 3(4) of 
Annex I to Regulation No 651/2014? 
3. Are persons who work on the board of trustees of a foundation on a 
voluntary basis public bodies within the meaning of Article 3(4) of Annex I to 
Regulation No 651/2014 for the sole reason that they work in a public body as 
their main profession? 
4. Does the control exercised by public bodies within the meaning of 
Article 3(4) of Annex I to Regulation No 651/2014 require that the organs of the 
public bodies are able to instruct the voluntary members of a board of trustees to 
vote in a specific way on the board of trustees on the basis of a legal relationship? 
5. Does indirect control of voting rights by public bodies require that it be 
established that the public bodies influence members of a board of trustees in such 
a way that they exercise their voting rights in the manner specified by the public 
bodies? 
6. Does indirect control of voting rights by public bodies exist merely if there 
is a possibility that voluntary members of a board of trustees will take account of 
interests of their public organisations of origin when carrying out their activity on 
the board of trustees? 
7. Does the term ‘are […] controlled, jointly’ within the meaning of 
Article 3(4) of Annex I to Regulation No 651/2014 require that it can be 
established that the public bodies form a common policy in relation to the voting 
rights? 
8. Does the term ‘are […] controlled’ within the meaning of Article 3(4) of 
Annex I to Regulation No 651/2014 depend on the actual application of the 
statutes by the foundation or on a possible understanding of the wording of the 
statutes?  
Provisions of EU law cited 
Regulation No 651/2014, in particular 
Article 3(4) of Annex I to Regulation No 651/2014 (‘the provision at issue’) 
NMI TECHNOLOGIETRANSFER 
 
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Provisions of national law and contractual provisions cited 
Gesetz zur vorläufigen Regelung des Rechts der Industrie- und Handelskammern 
(Law provisionally regulating the law pertaining to the chambers of commerce 
and industry), in the version of 29 March 2017 (‘the IHKG’) 
The ‘Zentrales Innovationsprogramm Mittelstand’ (Central Innovation 
Programme for SMEs; ‘ZIM’) Guidelines of the Federal Ministry of Economic 
Affairs and Energy (‘the ZIM Guidelines’), which are not legislative in nature 
Statutes of the foundation NMI Naturwissenschaftliches und Medizinisches 
Institut an der Universität Tübingen (Natural and Medical Sciences Institute at the 
University of Tübingen), in the version approved by the Regional Council of 
Tübingen on 11 August 2015 (‘the statutes’) 
Cooperation agreement between the NMI Institute and the State University of 
Tübingen, which was renewed in 2009 (‘the cooperation agreement’) 
Facts and procedure 
1 The parties are in dispute regarding the funding for a research and development 
project of the applicant under the ZIM Guidelines. 
2 The defendant is a limited liability company, on which powers of a public 
authority to carry out administrative tasks under public law, including in the area 
of funding allocations, have been conferred.  
3 The applicant’s share capital is EUR 27 800. Of this, the research institute ‘NMI 
Naturwissenschaftliches und Medizinisches Institut an der Universität Tübingen’ 
(‘the NMI Institute’) holds EUR 25 000. The remaining share capital is held by a 
holding company. 
4 The NMI Institute is a foundation with legal personality under civil law. The 
purpose of this charitable foundation consists in promoting science and research. 
The applicant was founded with the intention of, inter alia, putting the research 
results obtained there into practice for financial gain. The capital of the foundation 
was raised by 13 companies and, to a minor extent, by the City of Reutlingen. The 
statutes do not contain any provisions governing the exercise of the shareholder 
rights held by the NMI Institute in the applicant.  
5 Until April 2018, the applicant’s managing director was both Chairman of the 
Executive Board and Head of the NMI Institute. The applicant and the NMI 
Institute have their registered office in the same building in Reutlingen.  
6 According to its statutes, the NMI Institute has two organs, namely the Board of 
Trustees and the Executive Board. The Executive Board manages the operations 
of the foundation and handles all of its affairs. The Executive Board requires the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-516/19 
 
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prior consent of the Board of Trustees for a number of operations, for example 
land transactions and borrowing.  
7 The Board of Trustees is tasked with laying down the principles for the 
foundation’s work in line with its purpose and with monitoring compliance with 
those principles. According to the statutes, it has, among others, the following 
powers: decision-making on the research and financial planning of the foundation, 
appointment and dismissal of members of the Executive Board, and amendment of 
the statutes. Its decisions are adopted by simple majority, by two-thirds majority 
in the case of amendments to the statutes.  
8 The members of the Board of Trustees carry out their activities on a voluntary 
basis. In accordance with the statutes, the Board of Trustees has a total of 17 
members at present. For the exact composition of the board, reference is made to 
the first question referred. The majority of the members come from public bodies 
within the meaning of the provision at issue.  
9 The members of the Board of Trustees include the Director of the Chamber of 
Commerce and Industry of the City of Reutlingen. Pursuant to the IHKG, the 
chambers of industry and commerce, which are public-law bodies, represent the 
interests of traders in their district and promote the interests of trade and industry.  
10 Furthermore, the NMI Institute and the State University of Tübingen work 
together on the basis of their cooperation agreement. This makes provision for, 
inter alia:  
– cooperation as equal partners and the equivalence of the mutually provided 
benefits 
– planning and implementation of research projects 
– cooperation in work and qualification opportunities 
– placing of professors in institutes of the foundation 
The cooperation agreement also lays down provisions regarding the distribution of 
exploitation proceeds resulting from joint inventions between the University of 
Tübingen and the NMI Institute.  
11 In July 2016, the applicant applied to the defendant for funding for its research 
projects. Although the defendant considered the research projects to be eligible for 
funding, it refused the application in February 2017. It based this on the ground 
that the applicant could not be regarded as an SME, as it is controlled by a public 
body.  
12 The applicant filed an appeal against that decision, which was dismissed by the 
defendant in June 2017. The applicant is pursuing its requests by way of its action.  
NMI TECHNOLOGIETRANSFER 
 
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Grounds for the order for reference 
13 The outcome of the dispute depends on a decision of the Court of Justice on the 
interpretation of the Treaties.  
14 The decisive question in the dispute is whether, on the basis of the provision at 
issue, the defendant was right to reject the classification of the applicant as an 
SME and was permitted to refuse funding.  
15 According to the ZIM Guidelines, SMEs with business operations in Germany are 
eligible to apply for funding. Regarding the definition of an SME, those guidelines 
refer to Regulation No 651/2014 and the provision at issue.  
16 According to the provision at issue, an enterprise cannot be regarded as an SME if 
25% or more of the capital or voting rights are directly or indirectly controlled, 
jointly or individually, by one or more public bodies. 
17 The defendant puts forward the following arguments to demonstrate that the 
applicant is controlled by public bodies and therefore cannot be classified as an 
SME:  
– The NMI Institute and the applicant are linked enterprises within the meaning 
of Article 3(3)(a) of [Annex I to] Regulation No 651/2014.  
– It is true that the NMI institute does not exercise any direct control over the 
applicant.  
– However, public bodies do exercise indirect control over the applicant via the 
Board of Trustees, the majority of which comprises representatives of public 
bodies.  
– Having regard to the tasks assigned to it under the statutes of the foundation as 
a whole, the Board of Trustees steers the foundation.  
– The applicant’s field of activity is in line with the purpose of the foundation, 
with the result that it can be assumed that public bodies also exert sufficient 
influence over the applicant. 
18 The applicant puts forward the following arguments to demonstrate that the 
applicant is not controlled by public bodies and can therefore be classified as an 
SME:  
– The foundation is guided exclusively by the objective purpose of the 
foundation. No policy formation takes place beyond this.  
– The Board of Trustees does not influence the policy of the foundation, that is to 
say, that of the other organs of the foundation, and does not interfere with the 
manner in which the foundation adopts decisions in the applicant’s general 
meetings of shareholders.  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-516/19 
 
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– The Board of Trustees is comparable to a specialist advisory committee that 
cannot exert any influence on decisions relating to the applicant.  
– The executive board of a foundation generally has extensive powers.  
– The Board of Trustees of the NMI Institute cannot issue instructions to the 
Executive Board. This also applies in regard to the question of how the 
Executive Board exercises the shareholder rights held by the NMI Institute in 
the applicant.