Judgment — ECLI:EU:T:1999:7
Date: 1999-01-21
Language of the case: German
Court formation: Fifth Chamber, Extended Composition
Based on: Treaty establishing the European Coal and Steel Community (1951)
Subject matter: State aids;Competition
Concepts: Acts of the institutions;Investments and financial aid;Rights of the defence and procedural guarantees;Pleas in law
Procedure: Action for annulment - unfounded
Origin: Germany

summary information provided by the German Gov­
ernment neither the applicants nor the Federal Republic of Germany have demon­
strated that this imperfection had had a decisive impact on the categorisation of the 
loans as aid within the meaning of Article 4(c) of the ECSC Treaty. 
185 It follows that this second complaint must be rejected. 
II-72 
NEUE MAXHÜTTE STAHLWERKE AND LECH-STAHLWERKE v COMMISSION 
4. The complaint alleging incorrect presentation by Decision 95/422 of the 1988 
decision 
Arguments of the parties 
— The substance of the complaint 
186 The applicants and the Federal Republic of Germany, as intervener, maintain that 
Decision 95/422 presents the 1988 decision in a truncated manner. In that decision 
the Commission concluded that the proposed participation of Bavaria in the suc­
cessor undertakings to Maxhütte, as provided for in the framework agreement on 
the 1987 take-over plan, did not contain elements of State aid. 
187 The 1987 framework agreement provided for Bavaria to pay subsidies to cover old 
burdens ('Altlasten'). According to the applicants and the Federal Republic of Ger­
many, the disputed subsidy of DEM 56 million was intended specifically to meet 
such costs. In their submission, it was covered by the 1988 decision and had there­
fore been approved by the defendant. 
188 The defendant contends that this complaint should be rejected, maintaining that 
the 1988 decision did not relate to subsidies intended to cover old burdens. 
— The request for documents 
189 As the defendant disputes that the old burdens formed the basis of the 1988 deci­
sion, the applicants consider the production of this file to be necessary. They 
II - 73 
JUDGMENT OF 21. 1. 1999 — JOINED CASES T-129/95, T-2/96 AND T-97/96 
therefore request that the Court order the defendant, under Articles 64 and 65 of 
the Rules of Procedure, to submit its file on the 1988 decision. 
190 The defendant replies that there is no case for acceding to the applicants' request. 
Findings of the Court 
— The substance of the complaint 
191 The 1988 decision contains no explicit reference to the question of old burdens. 
However, the framework agreement of 1987, which was the subject of that deci­
sion, stated in paragraph 5.5: 
'Die Anlagen werden altlastenfrei übernommen. Soweit eine altlastenfreie Übertra­
gung nicht möglich ist, wird der Freistaat sicherstellen, daß N M H von den sich 
daraus ergebenden Verpflichtungen wirtschaftlich nicht betroffen wird.' ('The 
installations are taken over free of old burdens. Where a take-over free of old bur­
dens is impossible, Bavaria will ensure that N M H will not be affected by the 
resultant economic responsibilities.') 
192 Given, first, that the whole of the framework agreement of 1987, including para­
graph 5.5 thereof, was examined under the procedure which led to the 1988 deci­
sion and secondly that the defendant itself has acknowledged that it had examined 
the question of the old burdens, its argument that the 1988 decision did not relate 
to these activities cannot be accepted. 
II - 74 
NEUE MAXHÜTTE STAHLWERKE AND LECH-STAHLWERKE v COMMISSION 
193 Nevertheless, as this framework agreement related to commitments undertaken by 
Bavaria during 1987 and 1988, the 1988 decision did not cover the loans granted by 
Bavaria to N M H after that period, in particular the subsidy of DEM 56 million 
paid under the agreement of 27 January 1995 (see paragraph 15 above). 
194 Furthermore, it is clear from paragraph 2 of the communication from the German 
Government dated 16 May 1994 and from the minutes of the meeting of the 
Council of Ministers of the Government of Bavaria held on 4 November 1987 
regarding the situation of Maxhütte (paragraph 11) that the old burdens repre­
sented pollution-related costs and cleaning-up measures aimed at ensuring the 
purity of the air, combating noise and protecting underground water. 
195 Consequently, the applicant's claim that the disputed subsidy of DEM 56 million 
had been authorised by the 1988 decision must be dismissed. 
196 Even if it were supposed that the applicant's complaint alleging an incorrect 
description of that decision were well founded, this defect would not in any event 
have any effect on Decision 95/422 and therefore could not lead to its annulment. 
As a consequence, this complaint must be dismissed. 
— The request for documents 
197 As the Court considers itself to be sufficiently informed by the documents before 
it and in view of what it has stated in paragraphs 191 to 195 above, the Court 
deems it unnecessary to order the production of the file on the 1988 decision. 
II - 75 
JUDGMENT OF 21. 1. 1999 — JOINED CASES T-129/95, T-2/96 AND T-97/96 
5. The complaint alleging incorrect presentation by Decision 95/422 of the cir­
cumstances surrounding the withdrawal of the former private shareholders of 
N M H 
Arguments of the parties 
198 According to the applicants, supported by the Federal Republic of Germany, Deci­
sion 95/422 is based on an incorrect presentation of the facts, since it alleges that 
the former private shareholders (Krupp Stahl, Thyssen Stahl, Klöckner Stahl) paid 
nothing at the time of their withdrawal. It fails to indicate that the latter paid a 
'negative sale price' by subsequently granting loans to N M H (communications 
from the Federal German Government dated 16 May and 15 July 1994). In 
exchange for their withdrawal, they assigned the claims arising from these loans at 
one third of their value with a promise from N M H to make repayment in full if its 
fortunes improved. 
199 The Federal Republic of Germany adds that Bavaria, the main shareholder of 
N M H , was in a different situation to that of the private minority shareholders at 
the time when they transferred their shares. Because of their small participation in 
the capital of N M H and the fact that N M H competed with them in their main 
activity, they did not take part in the search for a buyer and in the drafting of an 
overall economic plan for the company. Despite these differences, according to the 
Federal Republic of Germany, the defendant wrongly assessed the payments at 
issue in the light of the reasonable investor test by referring to the conduct of the 
minority shareholders in question. 
200 In response, the defendant states that the presentation of the facts contained in 
Decision 95/422 regarding the withdrawal of the former private shareholders 
(paragraph 5 of section IV) accords with that set out in the notification from the 
German Government dated 16 May 1994. It was never informed of possible addi­
tional capital injections by the former shareholders. For that reason, the argument 
presented ex post by the applicants and by the German Government cannot be 
taken into consideration. 
II - 76 
NEUE MAXHÜTTE STAHLWERKE AND LECH-STAHLWERKE v COMMISSION 
Findings of the Court 
201 The letters from the German Government dated 16 May and 15 July 1994 show 
that the former private shareholders of N M H were authorised by Bavaria to sell 
their shares on 30 June 1993 (Klöckner) and 21 March 1994 (Thyssen and Krupp). 
They subsequently sold their shares for the token price of DEM 1. At the same 
time, the claims arising from the loans that had been granted by the former share­
holders in June/July 1992 were transferred to the Aicher group for a small consid­
eration. 
202 It is therefore apparent that a period of one year separates the granting of loans by 
the former private shareholders in 1992 and the sale of their shares during 1993. 
The applicants have not, however, demonstrated the existence of a link between 
these two events which proves that these former private shareholders had with­
drawn against payment of a sum. 
203 The reasoning put forward by the Federal Republic of Germany cannot be 
accepted. It has already been found above (see paragraph 114) that, even supposing 
that Bavaria was the main shareholder in N M H , the defendant did not manifestly 
fail to observe the provisions of the Treaty or any rule of law relating to its appli­
cation in considering that, as an investor, Bavaria had an interest in carrying out a 
profitable transaction, and even in attempting to maximise the return on its invest­
ment, in the same manner as any private investor operating in a market economy 
and, in particular, in the same manner as the other shareholders. Moreover, the 
larger the shareholding of a normally prudent private investor in a company to 
which he grants a loan, the greater the care he will take to satisfy himself as to the 
profitability of the prospects which that loan offers. Furthermore, the applicants 
have not shown why their argument that N M H competed with the minority 
shareholders in their main activity did not apply when they participated in the 
take-over of N M H in 1990 and in the context of the loans granted in 1992 up to 
the beginning of 1994. In any case, even supposing that such a reason existed, it is 
not apparent from the document before the Court that the defendant was 
informed of it. 
II - 77 
JUDGMENT OF 21. 1. 1999 — JOINED CASES T-129/95, T-2/96 AND T-97/96 
204 Consequently, it cannot be held against the defendant that it manifestly failed to 
observe the provisions of the Treaty or any rule of law relating to its application 
regarding the withdrawal of the former private shareholders. Even supposing that 
the presentation of the circumstances surrounding these operations was flawed, the 
applicants have not in any case shown that this flaw determined the outcome of 
Decis ion 95/422. 
205 It fol lows that the fourth complaint must be rejected. 
The second part of the third plea, concerning the refusal to suspend 
Decisions 96/178 and 96/484 or the obligation to repay the loans which those deci­
sions impose, and alleging infringement of the principle of legal protection and of 
the requirement to state the reasons on which a measure is based (complaints raised 
only in Cases T-2/96 and T-97/96) 
Arguments of the parties 
206 The applicant N M H complains that the defendant did not defer the adoption of 
the decision regarding the loans (Article 1 of Decis ions 96/178 and 96/484) and the 
order to repay the aid (Article 2 of the said decisions) until the Court of First 
Instance and the Court of Justice had ruled on the actions brought against Dec i ­
sion 95/422. In view of the material link between the first action, concerning the 
financial contributions, and the t w o other actions, concerning the loans, a judg­
ment in favour of N M H in the first would have rendered the two others redun­
dant. 
207 Furthermore, the applicant contends that the immediate repayment of the aid 
allegedly granted, which is required by Article 2 of Decisions 96/178 and 96/484, 
would result in the overindebtedness of N M H and consequently in its bankruptcy. 
The excessively general and inadequate statement of the reasons for these decisions 
deprived the applicant of effective legal protection. 
I I -78 
NEUE MAXHÜTTE STAHLWERKE AND LECH-STAHLWERKE y COMMISSION 
208 The defendant and the United Kingdom contend that this part of the plea should 
be rejected. The defendant points out that it explained in detail, in section V of 
Decisions 96/178 and 96/484, the reasons for which it did not consider suspension 
of the decision on repayment to be justified. 
209 The United Kingdom notes that aid cannot be granted before having been notified 
and authorised in accordance with Articles 2 to 5 of the fifth Steel Aid Code. It 
adds that, even if the applicant's action had succeeded in Case T-129/95, the defen­
dant would not have been obliged to suspend the other decisions relating to the 
loans. Furthermore, in his order in Case C-399/95 R, cited in paragraph 50 above 
(see paragraph 79), the President of the Court of Justice dismissed the applicants' 
application for suspension. 
Findings of the Court 
210 In the context of this part of the third plea, the applicant N M H puts forward in 
substance two different complaints based respectively on the non-suspension of 
the repayment order in Decisions 96/178 and 96/484 and on a defective statement 
of reasons. 
211 With regard to the first complaint, it must be noted that an aid which is incompat­
ible with the common market must, as a rule, be repaid by the recipient. The latter 
cannot benefit from the fact that a Member State made him a grant out of public 
resources in contravention of the provisions of the ECSC Treaty and the fifth Steel 
Aid Code. The order for immediate repayment, even if it leads to the bankruptcy 
of the beneficiary undertaking, is therefore an inherent consequence of the strict 
system of aid in the steel sector. 
I I -79 
JUDGMENT OF 21. 1. 1999 — JOINED CASES T-129/95, T-2/96 AND T-97/96 
212 N o provision of the ECSC Treaty or of the fifth Steel Aid Code gives the Com­
mission the power to suspend an order to repay. It is clear from the first paragraph 
of Article 39 of the ECSC Treaty that even actions brought before the Court do 
not have suspensory effect. 
213 For the sake of completeness, the Court notes that in its order in Case 
C-399/95 R, cited in paragraph 50 above, the Court of Justice held that the suspen­
sion sought in that case could not be granted in order to avoid harm which, even 
assuming it to be certain, would be the unavoidable consequence of the strict 
application of the system of aid to the steel sector, whose purpose, inter alia, is to 
prevent the effects particularly harmful to competition — and so to the survival of 
successful companies — of artificially maintaining undertakings 'which could not 
exist under normal market conditions (paragraph 80). 
214 In those circumstances, the first complaint put forward by the applicant is 
unfounded. 
215 As regards the alleged defect in the statement of reasons, it should be pointed out 
that the reasons for the order to repay are set out in section V of Decisions 96/178 
and 96/484. This statement of reasons was sufficient to enable the applicant to 
understand why the order to repay was not suspended. 
216 The second part of the third plea is therefore dismissed in its entirety. 
I I - 8 0 
NEUE MAXHÜTTE STAHLWERKE AND LECH-STAHLWERKE v COMMISSION 
The third part of the third plea, alleging unlawful separation of procedures (com-
plaints raised only in Cases T-2/96 and T-97/96) 
Arguments of the parties 
217 The applicant N M H maintains that the three procedures relating to the privatisa­
tion of N M H and the granting of the loans are substantially connected. By initiat­
ing three procedures, the defendant distinguished artificially between facts which 
the need for consistency required be considered together. It therefore committed 
an error of procedure. 
218 The defendant and the United Kingdom challenge this complaint and contend that 
it should be rejected. 
Findings of the Court 
219 The obligation for the defendant to deal with the present cases in a single proce­
dure does not stem from any provision of the ECSC Treaty or from the fifth Steel 
Aid Code. 
220 At issue in the present cases were first the financial measures envisaged in the 
framework of the planned privatisation of N M H , which were notified to the 
Commission by the German Government on 16 May 1994, and secondly loans 
granted to N M H by Bavaria between 1993 and 1995, which were not notified to 
the Commission until after they had been granted. More specifically, the Commis­
sion was not informed of the payment of the first tranches of those loans until 15 
July and 28 September 1994, and thus after the initiation of the procedure which 
led to Decision 95/422, and the payment of the four last tranches was not notified 
until after the initiation of the procedure which led to Decision 96/178. 
II-81 
JUDGMENT OF 21. 1. 1999 —JOINED CASES T-129/95, T-2/96 AND T-97/96 
221 It fol lows from the foregoing that the nature of those measures and the means 
employed were different, as were the periods in which they were taken. Further­
more, when the procedure which led to Decis ion 95/422 was initiated, the defen­
dant was not aware of the financial measures which were to become the subject of 
the t w o subsequent decisions. As a result, it could not have examined them in a 
single procedure. 
222 It fol lows that the third part of the third plea must be rejected as unfounded. 
D — The fourth plea, alleging infringement of the right to a fair hearing 
Arguments of the parties 
223 In Case T-129/95 the applicants complain that the defendant infringed their right 
to a fair hearing and that of the German Government by depriving them of the 
right to state their views on the assessment that the financial contribution by 
Bavaria was a non-repayable subsidy. They maintain that they could not have 
expected such an assessment, because, first, the notification of the initiation of the 
procedure made reference to a capital injection in favour of N M H and, second, the 
Commiss ion had stated during a conversation between the competent Member of 
the Commiss ion and the Bavarian Minister for the E c o n o m y that the form of the 
contribution was of no importance. In support of their complaint, they cite the 
judgment of the Court of Justice in Case C-135/92 Fiskano v Commission [1994] 
E C R I-2885, paragraph 39, and the judgment of the Court of First Instance in 
Joined Cases T-39/92 and T-40/92 CB and Europay v Commüsion [1994] 
E C R II-49, paragraph 48. 
224 In Cases T-2/96 and T-97/96 the applicant N M H maintains that in a procedure 
which may lead to the bankruptcy of an undertaking the defendant is obliged to 
consult the undertaking. It argues that this principle is particularly important when 
judicial review is limited, as in the case of the second sentence of the first para­
graph of Article 33 of the ECSC Treaty. 
I I - 8 2 
NEUE MAXHÜTTE STAHLWERKE AND LECH-STAHLWERKE v COMMISSION 
225 Moreover, the defendant had only published a notification about the procedure in 
the Official Journal of the European Communities, without informing the appli­
cants of the full tenor of the complaints. 
226 The defendant contends that the plea should be rejected. It maintains that it c o m ­
plied with Article 6(1) of the fifth Steel Aid Code and gave the German Govern­
ment the opportunity to express its views about all the questions of fact and law 
taken into consideration in connection with the information communicated by the 
latter and by Bavaria. 
227 According to the defendant, the undertakings affected by a procedure initiated 
under that provision have no rights other than the right to submit their comments 
on the decision initiating the procedure. The decision is addressed exclusively to 
the Member State involved and it alone has the right to be heard. 
Findings of the Court 
228 According to established case-law, observance of the right to be heard is, in all 
procedures initiated against a person which are liable to culminate in a measure 
adversely affecting that person, a fundamental principle of Communi ty law which 
must be guaranteed even in the absence of specific rules (judgments in Case 
C-301/87 France v Commission [1990] E C R I-307, paragraphs 29 to 31, Case 
40/85, cited in paragraph 76 above, paragraph 28, and Case C-142/87 Belgium v 
Commission [1990] E C R I-959, paragraph 46). 
229 Article 6(4) of the fifth Steel Aid Code provides as follows: 'If, after giving notice 
to the interested parties concerned to submit their comments, the Commiss ion 
finds that aid in a given case is incompatible with the provisions of this Decis ion, 
it shall inform the Member State concerned of its decision.' 
I I - 8 3 
JUDGMENT OF 21. 1. 1999 — JOINED CASES T-129/95, T-2/96 AND T-97/96 
230 It does not follow either from the wording of that article or from any other provi­
sion regarding State aid or from Community case-law that the Commission is 
required to hear the views of the recipient of State resources on the legal assess­
ment it makes on the provision of such resources. 
231 N o r does it follow that, after giving notice to the Member State concerned to sub­
mit its comments, the Commission is required to inform it of its position before 
adopting its decision. Moreover, even if such an obligation existed, the undertak­
ings concerned would not derive from it any right to a hearing. The judgments in 
Fiskano and CB and Europay, cited in paragraph 223 above, on which the appli­
cants rely in support of their plea, are confined to affirming the right of undertak­
ings or associations of undertakings, in any procedure which may lead to the 
imposition of penalties, to be afforded the opportunity effectively to make known 
their views on the truth and relevance of the facts and complaints alleged by the 
Commission. 
232 It does not avail the applicants to complain that the defendant informed them only 
by publishing in the Official Journal the notice of the initiation of a procedure 
under Article 6(4) of the fifth Steel Aid Code. It is clear from the case-law relating 
to Article 93(2) of the EC Treaty that this provision does not require individual 
notice to be served and that its sole purpose is to oblige the Commission to take 
steps to ensure that all persons who may be concerned are notified that a proce­
dure has been initiated and given an opportunity to submit their comments in this 
regard. That being so, the publication of a notice in the Official Journal is an 
adequate and sufficient means of informing all the parties concerned that a proce­
dure has been initiated (judgment in Intermills, cited in paragraph 131 above, para­
graph 17). As its purpose is comparable to that of Article 93(2) of the EC Treaty 
and its wording does not grant individuals the right to be notified separately, 
Article 6(4) of the fifth Steel Aid Code must be interpreted as meaning that pub­
lication in the Official Journal of the notice that a procedure has been initiated is 
sufficient. 
I I-84 
NEUE MAXHÜTTE STAHLWERKE AND LECH-STAHLWERKE v COMMISSION 
233 In the present cases, the applicants were put in a position to submit their com­
ments on the facts ascertained and the assessments made by the defendant in the 
notice of initiation of the procedure in question, even if they did not take advan­
tage of that opportunity. 
234 Furthermore, it is clear from the documents before the Court (see paragraphs 29 to 
32, 35 to 37 and 40 to 42 above) that the views of the German Government were 
duly heard, so that its right to a fair hearing was also respected. 
235 It follows that Decision 95/422, Decision 96/178 and Decision 96/484 were not 
unlawful by reason of an infringement of the right to a fair hearing. 
236 The fourth plea must therefore be rejected. 
E — Conclusion 
237 It follows from all of the foregoing that the pleas must be dismissed in their 
entirety. As the applicants have not demonstrated that the contested decisions are 
unlawful, the actions for annulment must be dismissed in their entirety. 
I I - 8 5 
JUDGMENT OF 21. 1. 1999 —JOINED CASES T-129/95, T-2/96 AND T-97/96 
Costs 
238 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be 
ordered to pay the costs if they have been applied for in the successful party's 
pleadings. Since the defendant has applied for costs and the applicants have been 
unsuccessful, the latter must be ordered to pay the costs of the defendant and to 
bear their own costs. 
239 Under the first subparagraph of Article 87(4) of the Rules of Procedure, Member 
States and institutions which have intervened in the proceedings are to bear then-
own costs. It follows that the Federal Republic of Germany and the United King­
dom of Great Britain and Northern Ireland, as interveners, must bear their own 
costs. 
On those grounds, 
T H E C O U R T O F FIRST INSTANCE (Fifth Chamber, Extended Composition) 
hereby: 
1. Dismisses the request for confidential treatment; 
2. Dismisses the request for access to the file relating to the Commission Deci­
sion of 1 August 1988; 
II-86 
NEUE MAXHÜTTE STAHLWERKE AND LECH-STAHLWERKE v COMMISSION 
3. Dismisses the applications in Joined Cases T-129/95, T-2/96 and T-97/96; 
4. Orders the applicants to bear their own costs and to pay those of the defen­
dant; 
5. Orders the Federal Republic of Germany and the United Kingdom of Great 
Britain and Northern Ireland to bear their own costs. 
Azizi García-Valdecasas Moura Ramos 
Jaeger Mengozzi 
Delivered in open court in Luxembourg on 21 January 1999. 
H. Jung 
Registrar 
J. Azizi 
President 
I I -87 
JUDGMENT OF 21. 1. 1999 — JOINED CASES T-129/95, T-2/96 AND T-97/96 
Table of contents 
Legal framework I I - 2 3 
Facts at the origin of the dispute I I - 2 6 
Background II - 26 
1. Formation of the applicant company Neue Maxhütte Stahlwerke GmbH II - 26 
2. Shareholding of the Freistaat Bayern in the undertakings NMH and Lech-
Stahlwerke GmbH I I - 2 7 
3. The plan to privatise N M H I I - 2 8 
4. Loans granted to NMH II - 30 
Administrative procedure II - 32 
1. Procedure relating to the financial measures in connection with the privatisa­
tion of N M H (Case T-129/95) II - 32 
2. Procedure relating to the loans granted between March 1993 and August 1994 
(Case T-2/96) I I - 3 4 
3. Procedure relating to the loans granted between July 1994 and March 1995 
(Case T-97/96) I I - 3 5 
Procedure II - 36 
Case T-129/95 I I - 3 6 
Case T-2/96 I I - 3 6 
Case T-97/96 I I - 3 7 
Joined Cases T-129/95, T-2/96 and T-97/96 I I - 3 8 
Forms of order sought II - 39 
Substance I I - 4 1 
A — The first plea, alleging infringement of Article 4(c) of the ECSC Treaty I I - 4 2 
Arguments of the applicants I I - 4 2 
1. Preliminary observations II - 42 
(a) The private investor test II - 42 
(b) Arguments based on the private investor test II - 43 
— Private investor of comparable size II - 43 
— Similar situation II - 43 
— Economic justification and prospects of profitability I I - 4 3 
I I - 8 8 
NEUE MAXHÛTTE STAHLWERKE AND LECH-STAHLWERKE v COMMISSION 
2. Contribution of capital by Bavaria to NMH and LSW I I - 4 5 
3. Contribution of DEM 56 million paid by Bavaria to N M H for investment 
(Case T-129/95) II - 4 6 
4. Loans granted by Bavaria to N M H (Cases T-2/96 and T-97/96) I I - 4 6 
Arguments of the defendant and of the United Kingdom of Great Britain and 
Northern Ireland I I - 4 8 
Findings of the Court II - 48 
1. Preliminary observations II - 48 
(a) Article 4(c) of the ECSC Treaty II - 48 
(b) Judicial review of the assessments made by the Commission in the con­
text of the application of the fifth Steel Aid Code I I - 4 9 
(c) The private investor test II - 50 
2. Application of the private investor test to the injection of capital into NMH 
and LSW I I - 5 2 
(a) Private investor of a comparable size and in a similar situation I I - 5 2 
(b) Prospects for profitability II - 53 
(c) Possible tarnishing of the image of Bavaria I I - 5 5 
3. Contribution of DEM 56 million paid to NMH for investment (Case 
T-129/95) I I - 5 6 
4. Application of the private investor test to the loans granted by Bavaria 
(Cases T-2/96 and T-97/96) I I - 5 7 
(a) Categorisation of the loans as State aid II - 57 
(b) The reference to the German law on limited liability companies I I - 5 8 
(c) Possible repayment of the loans II - 59 
5. Conclusion II - 60 
B — The second plea, alleging breach of the principle of proportionality I I - 6 0 
Arguments of the applicants II - 60 
Arguments of the defendant and of the United Kingdom of Great Britain and 
Northern Ireland II - 61 
Findings of the Court II - 61 
1. Application of a de minimis criterion to State aid II - 61 
2. The Commission's alleged obligation to order the alteration of the condi­
tions for granting the aid instead of its repayment I I - 6 3 
I I - 8 9 
JUDGMENT OF 21. 1. 1999 — JOINED CASES T-129/95, T-2/96 AND T-97/96 
3. The third indent of Article 5 of the ECSC Treaty II - 64 
4. Conclusion II - 64 
C — The third plea, alleging infringement of essential procedural requirements 1 1 - 6 4 
The first part of the third plea, alleging fallacious presentation of several findings 
of fact contained in the contested decisions and, as a result, defects in the state­
ment of reasons II - 65 
1. Preliminary observations II - 65 
2. The complaint alleging incorrect presentation of the planned financial mea­
sures II - 66 
Arguments of the parties II - 66 
Findings of the Court II - 67 
— Case T-129/95 II - 67 
— Cases T-2/96 and T-97/96 II - 68 
— Conclusion II - 69 
3. The complaint alleging incorrect presentation by Decision 95/422 of the 
examples of entrepreneurial conduct described by the German Government 
and the request for information relating thereto to be treated 
confidentially II - 69 
The request for confidential treatment II - 69 
— Arguments of the parties II - 69 
— Findings of the Court II - 70 
The substance of the complaint II - 70 
— Arguments of the parties II - 70 
— Findings of the Court II - 72 
4. The complaint alleging incorrect presentation by Decision 95/422 of the 
1988 decision I I - 7 3 
Arguments of the parties II - 73 
— The substance of the complaint II - 73 
— The request for documents II - 74 
Findings of the Court II - 74 
— The substance of the complaint II - 74 
— The request for documents II - 75 
5. The complaint alleging incorrect presentation by Decision 95/422 of the cir­
cumstances surrounding the withdrawal of the former private shareholders 
of NMH I I - 7 6 
Arguments of the parties II - 76 
Findings of the Court II - 77 
I I - 9 0 
NEUE MAXHÜTTE STAHLWERKE AND LECH-STAHLWERKE v COMMISSION 
The second part of the third plea, concerning the refusal to suspend 
Decisions 96/178 and 96/484 or the obligation to repay the loans which those 
decisions impose, and alleging infringement of the principle of legal protection 
and of the requirement to state the reasons on which a measure is based I I - 7 8 
Arguments of the parties II - 78 
Findings of the Court II - 79 
The third part of the third plea, alleging unlawful separation of procedures I I - 8 1 
Arguments of the parties II - 81 
Findings of the Court II - 81 
D — The fourth plea, alleging infringement of the right to a fair hearing I I - 8 2 
Arguments of the parties II - 82 
Findings of the Court II - 83 
E — Conclusion II - 85 
Costs I I - 8 6 
I I - 9 1