62002TO0378_EN
Parties
Grounds
Operative part
Parties
In Case T-378/02 R,
Technische Glaswerke Ilmenau GmbH,
established in Ilmenau (Germany), represented by G. Schohe and C. Arhold, lawyers, with an address for service in Luxembourg,
applicant,
v
Commission of the European Communities,
represented by V. Di Bucci and V. Kreuschitz, acting as Agents, with an address for service in Luxembourg,
defendant,
supported by
Schott Glas,
established in Mainz (Germany), represented by U. Soltész, lawyer,
intervener,
APPLICATION for suspension of the operation of Article 2 of Commission Decision C(2002) 2147 final of 2 October 2002 on State aid (C 44/2001) granted by Germany in favour of Technische Glaswerke Ilmenau GmbH,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES,
Registrar: H. Jung,
makes the following
Order
Grounds
Background
1. Technische Glaswerke Ilmenau ( " TGI" ) is a German company with its registered office in Ilmenau in the Freistaat Thüringen ( " Land of Thuringia" ). It carries on the business of making glassware.
2. TGI was formed in 1994 by Mr and Mrs Geiß, with the aim of taking over four of the 12 glass production lines (furnaces) of the former Ilmenauer Glaswerke GmbH ( " IGW" ), a company which had been liquidated by the Treuhandanstalt (a public trust management company which subsequently became the Bundesanstalt für vereinigungsbedingte Sonderaufgaben,
" the BvS" ). The furnaces in question came from the nationalised assets of the Volkseigener Betrieb Werk für Technisches Glas Ilmenau which, before the reunification of Germany, was the centre of glass manufacture in the former German Democratic Republic.
3. The sale of the four furnaces by IGW to the applicant was carried out in two stages, namely, by a first contract of 26 September 1994 ( " asset deal 1" ), approved by the Treuhandanstalt in December 1994, and by a second contract of 11 December 1995 ( " asset deal 2" ), approved by the BvS on 13 August 1996.
4. Under asset deal 1, the purchase price of the first three furnaces came to a total of DEM 5 800 000 (EUR 2 965 493) and was to be paid in three instalments, on 31 December 1997, 1998 and 1999. Payment was secured by a charge of DEM 4 000 000 (EUR 2 045 168) on the site of the three furnaces, and by a bank guarantee of DEM 1 800 000 (EUR 920 325).
5. Under asset deal 2, the fourth furnace, but not the land appertaining to it, was also sold by IGW to the applicant ─ as no other investors were interested ─ at the price of DEM 50 000 (EUR 25 565).
6. Under various leasing agreements, the last of which is dated 13 August 1998, the applicant had the use of what is called
" the old frit house" ) ( " das alte Gemengehaus" ), which was owned by Thüringer Liegenchaftsgesellschaft ( " TLG" ), an undertaking controlled by the Land of Thuringia. The applicant used the old frit house to supply a fourth furnace, the site of which also belongs to TLG and which is situated in a shed of the former works, near the raw materials needed for the manufacture of glass (namely, the
" frit" ).
7. It is common ground that the applicant had cash flow problems in 1997. In view of those problems, it entered into negotiations with the BvS. On 18 December 1997, according to the applicant, the BvS and the Land of Thuringia decided on a
" coordinated initiative"
consisting essentially in two measures.
8. First, by an agreement of 16 February 1998, the BvS waived the purchase price of DEM 4 000 000 (EUR 2 045 168) under asset deal 1 ( " the payment waiver" ). According to the applicant, this waiver had the effect of compensating for the loss of a grant of the same amount promised by the Land of Thuringia in respect of asset deal 1. The payment of the balance of the purchase price, namely DEM 1 800 000 (EUR 914 109) was deferred until 31 December 2003, subject to the payment of interest. In addition, the bank guarantee for the balance of the price was converted into a mortgage on the land of the first three furnaces, namely a lower-ranking charge ( " nachrangige Grundschuld" ) in order to improve TGI ' s cash flow ( " the novation of the bank guarantee" ).
9. Secondly, the Land of Thuringia, through its own bank, Thüringer Aufbaubank ( " TAB" ) granted the applicant a loan of DEM 2 000 000 (EUR 1 015 677) at ...%
(1) per annum by an agreement of 26 February and 3 March 1998 ( " the TAB loan" ). According to the applicant, this loan came from the Land ' s consolidation fund, one of the general State aid schemes authorised by the Commission under aid measure NN 74/95 (approved by Commission Decision SG (96) D/1946). The loan was paid to the applicant on 30 November 1998. In addition, the repayment of the loan is secured by a mortgage on the said land and by a directly enforceable guarantee given by Mr Geiß on 3 March 1998.
10. By letter of 1 December 1998, Germany notified the Commission of various measures, which included the purchase price waiver and the TAB loan, designed to consolidate the applicant ' s financial position.
11. At the end of 1998 the Land of Thuringia demolished the buildings on TLG ' s land, including the old frit house, in order to create a suitable empty site for the construction of a technology and research park which was to be called
" Am Vogelherd"
( " the TRP" ). As a result of the demolition, in addition to purchasing the site of the fourth furnace, the applicant contends that it had to increase the capacity of the new frit house (which it had had to build on its own land in 1995 to supply the first three furnaces) and construct a bridge in the form of a conveyor belt ( " Bandbrücke" ) to supply the fourth furnace from the new frit house by crossing over the public highway. The applicant alleges that these works and the said purchase suddenly entailed additional costs at the beginning of 1998 which were forecast as being likely to reach DEM ... million (EUR ...), a sum which was expressly taken into account in the TAB loan agreement.
12. By letter SG (2000) D/102831 dated 4 April 2000, the Commission initiated the formal investigation procedure laid down in Article 88(2) EC concerning the payment waiver and the TAB loan, this procedure being given reference C 19/2000 ( " the first formal procedure" ). Although this letter stated that, following the Commission ' s requests, additional information on these measures had been supplied by the German authorities on various occasions in the course of 1999, the Commission asked for further information, for the purpose of its formal investigation, concerning certain other grants of aid to the applicant by the German authorities in connection with asset deal 1 and asset deal 2. The alleged aid measures are described in the notice published in the
Official Journal of the European Communities
of 29 July 2000 (Invitation to submit comments pursuant to Article 88(2) of the EC Treaty, concerning aid measure C 19/2000 (ex NN 147/98 ─ Aid in favour of TGI ─ Germany (OJ 2000 C 217, p. 10)), in which the Commission considered provisionally that the payment waiver and the TAB loan could be regarded as aid incompatible with the common market.
13. Germany replied to the request for additional information on 5 July 2000. A meeting took place between the representatives of the Commission and the German authorities on 7 November 2000. The Commission was given further information by the latter on 1 March 2001.
14. On 12 June 2001 the Commission adopted, in relation to aid measure C 19/2000, Decision 2002/185/EC on State aid implemented by Germany for Technische Glaswerke Ilmenau GmbH (OJ 2002 L 62, p. 30,
" the first decision" ). The Commission, having in that decision expressly waived its right to examine the other TGI aid measures potentially incompatible with the common market, such as the TAB loan, the novation of the bank guarantee given in connection with asset deal 1 and the deferred payment of the balance of the purchase price, which was deferred to 2003 by the agreement of 16 February 1998 (paragraphs 64 and 65), reached the conclusion that the payment waiver was inconsistent with the conduct of a private investor. According to the Commission, the waiver constituted State aid incompatible with the common market within the meaning of Article 87(1) EC, which could not be authorised under Article 87(3) (Article 1 of the decision). Consequently Germany was ordered to effect recovery of the aid (Article 2 of the decision).
15. By letter of 3 July 2001, the Commission opened a second formal investigation procedure pursuant to Article 88(2) EC, to which it gave reference C 44/2001. This procedure ( " the new formal procedure" ) was confined to an examination, first, of the novation of the bank guarantee, second, the TAB loan and, third, the deferment until 2003 of the payment of the balance of the purchase price under asset deal 1. These measures, which were provisionally deemed to be aid incompatible with the common market, were described in the notice published in the
Official Journal of the European Communities
of 27 September 2001 (Invitation to submit comments pursuant to Article 88(2) of the EC Treaty, concerning aid measure C 44/2001 (ex NN 147/98 ─ Aid in favour of TGI ─ Germany (OJ 2001 C 272, p. 2)).
16. By application lodged at the Registry of the Court of First Instance on 28 August 2001, the applicant brought an action for the annulment of the first decision (Case T-198/01).
17. By letter of 9 October 2001, Germany submitted its observations on the new formal procedure. Regarding the TAB loan, it stated that, in German law, by virtue of the legal principle of sacrifice ( " Aufopferung" ), the applicant had a claim for compensation against the Land of Thuringia on account of the loss caused by the creation of the TRP by the Land, and that the TAB loan served to settle that claim.
18. By a separate document lodged at the Registry of the Court of First Instance on 15 October 2001, the applicant brought an action under Articles 242 EC and 243 EC for suspension of the operation of Article 2 of the first decision (Case T-198/01 R). This application was based, in particular, on a report drawn up on 2 October 2001 by a Berlin firm of chartered accountants, Pfizenmayer & Birkel ( " the first Pfizenmayer report" ) on the applicant ' s financial situation as at 31 August 2001.
19. By letter of 24 October 2001, the applicant submitted its observations on the new formal procedure. It stressed that, notwithstanding the opening of the procedure, it had finally found a new investor. On 4 March 2002 Mr and Mrs Geiß concluded a notarial deed with the investor whereby the latter undertook to invest a total of EUR ... in the capital of the applicant company in return for the acquisition of ...% of the shares.
20. By letter of 15 March 2002, Germany informed the Commission of the investor ' s undertaking and sent the Commission a copy of the notarial deed. The German authorities and the applicant requested a meeting with the Commission, at which the investor and TGI would also be present, to discuss the proposed investment, but the Commission rejected this proposal by letters of 11 April 2002 to the German Government and 25 April 2002 to the applicant.
21. By order of 4 April 2002, the President of the Court of First Instance suspended the operation of Article 2 of the first decision until 17 February 2003, subject to certain conditions(Case T-198/01 R
Technische Glaswerke Ilmenau
v
Commission
[2003] ECR II-2153,
" the TGI order" ). The assessment of the condition of urgency in that order takes account, in particular, of the first Pfizenmayer report and the updated forecasts prepared on the basis of a second report ( " the second Pfizenmayer report" ) ordered on 10 December 2001 by the President of the Court of First Instance in the original proceedings in Case T-198/01 R.
22. On 28 June 2002 the Commission lodged an appeal before the President of the Court of Justice against the TGI order (Case C-232/02 P(R)).
23. In conformity with that order, Pfizenmayer & Birkel prepared a third report on TGI ' s financial situation, in this case as at 1 July 2002 ( " the 2002 interim report" ), which was lodged at the Registry of the Court of First Instance on 5 August 2002 and served by the Court on the Commission on 7 August 2002.
24. On 2 October 2002 the Commission adopted, with regard to aid measure C 44/2001, Decision C(2002) 2147 final on State aid granted by Germany in favour of Technische Glaswerke Ilmenau GmbH ( " the contested decision" ).
25. According to Article 1 of the contested decision, Germany granted the applicant State aid incompatible with the common market. The aid measures in question consisted in the novation of the bank guarantee and the TAB loan of DEM 2 000 000 (EUR 1 015 677). Under Article 2, Germany was required to recover the amount of the aid from the applicant immediately.
26. The TGI order was upheld on appeal on 18 October 2002 by order of the President of the Court of Justice (Case C-232/02 P(R)
Commission
v
Technische Glaswerke Ilmenau
[2002] ECR I-8977).
27. Pursuant to Article 2 of the contested decision, TAB gave the applicant notice, by letter of 28 November 2002, to repay the sum of EUR ..., including interest and handling costs. The BvS, for its part, by letter of the previous day, gave TGI notice to provide a new first mortgage or charge to secure payment of the balance of the purchase price. These two creditors made their demands subject to the sole suspensory condition of a final decision by the Community judicature on a possible application (to be lodged before mid-February 2003) to suspend performance of the obligation to recover the aid under the said Article 2.
28. In accordance with the TGI order, on 16 December 2002 the applicant repaid the BvS EUR 256 000, proof of payment being given by documents lodged at the Registry of the Court of First Instance on 23 December 2002.
29. On 31 December 2002 the applicant also reduced the amount of the TAB loan to a balance of approximately EUR ... by an early repayment.
30. On 28 January 2003 Pfizenmayer & Birkel delivered a fourth report on the applicant ' s financial situation, again by virtue of the TGI order, as at 31 December 2002. A copy was lodged by the applicant at the Registry of the Court of First Instance and sent to the Commission on 31 January 2003 ( " the 2002 final report" ). On 3 February 2003 the Commission was asked to submit its comments, if any, on the report.
31. The Commission submitted its comments on 11 February 2003.
32. By document lodged at the Registry of the Court of First Instance on 14 February 2003, the applicant applied for an extension of the suspension of operation ordered in the TGI order. By order of the next day, adopted pursuant to the second paragraph of Article 105(2) of the Rules of Procedure of the Court, the President of the Court of First Instance decided to order the provisional extension of the original suspension until he had given a ruling on the merits of the application for extension in Case T-198/01 R [II].
Procedure
33. By application lodged at the Registry of the Court of First Instance on 18 December 2002, the applicant brought an action for the annulment of the contested decision.
34. By a separate document lodged at the Registry of the Court of First Instance on 14 February 2003, TGI made an application pursuant to Articles 242 EC and 243 EC for the suspension of the operation of Article 2 of the contested decision. With regard to urgency in particular, the application is based on a fifth report by Pfizenmayer & Birkel dated 7 February 2003, on the applicant ' s financial situation at that date (Annex 4 to the application,
" the fifth Pfizenmayer report" ).
35. By application lodged at the Registry of the Court of First Instance on 21 February 2003, Schott Glas applied to intervene in the present case in support of the form of order sought by the defendant.
36. The application was served on the parties on 26 February 2003 pursuant to Article 116(1) of the Rules of Procedure of the Court of First Instance and they raised no objections.
37. The Commission lodged its observations on the present application for interim measures on 12 March 2003.
38. As the Commission, in its written observations, actually questioned the veracity of the declaration on honour made by Mr and Mrs Geiß on 11 February 2003 (Annex 6 to the present application for interim measures), the President of the Court of First Instance asked the applicant, by letter of 18 March 2003, to produce documents relating to the spouses ' income for the period from 1 January 1994 to 28 February 2003, together with statements of all their private bank accounts and any relevant reference to their assets.
39. By letters of 17 and 20 March 2003, the applicant requested, pursuant to Article 116(2) of the Rules of Procedure, that certain passages of the application for interim measures, certain annexes and certain passages of other annexes to that application, together with certain other documents in the file, be treated as confidential in relation to the intervener. The applicant also lodged a non-confidential version of the documents in question.
40. By order of the President of the Court of First Instance of 26 March 2003, Schott Glas was granted leave to intervene in support of the form of order sought by the Commission. The President found that, as Schott Glas was a competitor of the applicant and had taken part in the procedure before the Commission, it had a legitimate interest, for the purpose of Article 40 of the Statute of the Court of Justice, applicable to the Court of First Instance by virtue of the first subparagraph of Article 53 of the statute, in the outcome of the present proceedings because, if the application for interim measures were granted, the alleged distortion of competition feared by Schott Glas would continue for a significant period.
41. On 3 April 2003, the applicant lodged the documentation required by the letter of 18 March 2003, concerning the assets of Mr and Mrs Geiß, in confidential and non-confidential versions.
42. Following the order of 26 March 2003, non-confidential versions of the pleadings in the present case, lodged by the applicant, were served on the intervener by the Registry of the Court of First Instance.
43. The parties presented oral argument to the Court and replied to the President ' s questions at the hearing on 11 April 2003. As there were no objections by the defendant or the intervener, the President decided to allow the applicant ' s request for confidential treatment in relation to the intervener.
44. Following the hearing, the President asked the applicant, by letter from the Registrar of 16 April 2003, to give written replies to certain questions.
45. The applicant replied to the questions on 8 May 2003 ( " the reply to the questions" ). It also requested confidential treatment, in relation to the intervener, pursuant to Article 116(2) of the Rules of Procedure, of certain passages in the reply and the documents annexed thereto, of which a non-confidential version was lodged at the Court Registry at the same time.
46. By letter of 13 May 2003, the intervener raised objections to certain deletions in the non-confidential version of the reply to the questions.
47. The applicant lodged observations on the intervener ' s objection by letter of 22 May 2003.
48. On 23 May 2003 the Commission lodged its observations on the reply to the questions ( " the Commission ' s additional observations" ). By letter of the same date, it waived making any observations on the intervener ' s objection concerning the applicant ' s request for the confidential treatment of the said reply.
49. By letter of 3 June 2003, the applicant submitted a request for confidential treatment, in relation to the intervener, of certain particulars in the Commission ' s additional observations. It also lodged a non-confidential version of that document at the Court Registry.
50. By letter of 5 June 2003, the intervener, while maintaining its objection of 13 May 2003 to the deletions in the non-confidential version of the reply to the questions, indicated that it had no objection to the deletions concerning the non-confidential version of the Commission ' s additional observations lodged by the applicant.
51. By letter of the next day, the intervener waived its objections to the deletions concerning the non-confidential version of the reply to the questions. It also stated that the written observations which it had lodged on 3 June 2003 on the said reply could henceforward be regarded as final, notwithstanding its abovementioned objections of 13 May 2003.
Law
52. By virtue of Articles 242 EC and 243 EC in conjunction with Article 225(1) EC, the Court of First Instance may, if it considers that circumstances so require, order the suspension of the operation of the contested act or prescribe the necessary interim measures.
53. Article 104(2) of the Rules of Procedure provides that an application for interim measures is to state the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case ( fumus boni juris ) for the interim measures applied for. Those conditions are cumulative, so that an application for interim measures must be dismissed if any one of them is not fulfilled (order of the President of the Court of Justice in Case C-268/96 P(R)
SCK and FNK
v
Commission
[1996] ECR I-4971, paragraph 30; order of the President of the Court of First Instance in Case T-237/99 R
BP Nederland and Others
v
Commission
[2000] ECR II-3849, paragraph 34, and the TGI order, paragraph 50). Also, where appropriate, the court hearing the application for interim measures shall weigh up the interests involved (order of the President of the Court of Justice in Case C-445/00 R
Austria
v
Council
[2001] ECR I-1461, paragraph 73, and the TGI order, paragraph 50).
54. Under Article 107(3) of the Rules of Procedure, even though an order for interim measures takes effect until final judgment is delivered, it may nevertheless fix a date on which the interim measure is to lapse (see, to that effect, the order of the President of the Court of Justice in Case 160/84 R
Oryzomyli Kavallas and Others
v
Commission
[1984] ECR 3217, paragraph 9, and the TGI order, paragraph 51).
The requests for confidential treatment of 8 May and 3 June 2003
55. In its requests, the applicant refers to Article 116(2) of the Rules of Procedure. In view of the waiver of objections to the plea of business secrecy with regard to some of the information eliminated by the applicant in its additional requests for confidential treatment of 8 May and 3 June 2003, the President considers that those requests may, with one exception, be allowed. Regarding the name of the firm of chartered accountants, and that of the responsible expert in that firm, who submitted a report on behalf of TGI in the present case, it is clear that this information cannot be considered a business secret of the applicant. In any case, their names are now in the public domain as a result of the TGI order, which has now been published in the
Reports of Cases of the Court of Justice and the Court of First Instance
and posted on the Court internet site, without the applicant raising the slightest objection.
56. It follows that this application must be dismissed.
Prima facie case
57. In support of its application, the applicant refers to four of the six pleas in its application in the main action. Those pleas relate to the alleged illegality of the severance of the formal procedure by the Commission, the claim that the TAB loan is not in the nature of State aid, the fact that the loan is covered by an authorised general aid scheme, and the claim that the Community guidelines on State aid for rescuing and restructuring firms in difficulty, in the version of 23 December 1994 (OJ 1994 C 368, p. 12,
" guidelines" ), were misapplied in the contested decision.
58. The Commission, supported by the intervener, submits that the application is not justified, even prima facie.
Procedural errors
59. First of all, with regard to the Commission ' s alleged procedural errors, the applicant claims that the Commission took an unreasonable time of 31 months from the notification of the TAB loan on 1 December 1998 and the novation of the bank guarantee before opening the new formal procedure (see, by analogy, Case T-95/96
Gestevisión Telecinco
v
Commission
[1998] ECR II-3407, paragraph 74). Such a period of time is a manifest breach of the Commission ' s duty to act within a reasonable period. The delay is attributable entirely to the Commission ' s conduct and is a procedural defect subject to review by the Community courts (Case T-152/99
HAMSA
v
Commission
[2002] ECR II-3049, paragraph 48).
60. The applicant also alleges that, because of its delay, the Commission was in breach of the principle of sound administration, which requires the Commission diligently and impartially to examine the measures in question in their general context (regarding the importance of the context, the applicant cites the judgments in
HAMSA
v
Commission, cited above, paragraph 29, and Case T-98/00
Linde
v
Commission
[2002] ECR II-3961, paragraphs 41 and 47). Therefore the Commission had, in breach of an essential procedural requirement, refrained from taking an overall view of the notified measures, including those which it considered to be existing aid measures (paragraph 96 of the contested decision).
61. According to the applicant, without this irregularity the Commission might have reached a different conclusion in the contested decision. In this connection, the applicant refers to the Commission ' s finding (paragraphs 139 and 140 of the contested decision) that the undertaking given by the new investor would not enable the applicant company to be profitable because the undertaking was subject to the condition that the aid in question in the first decision (that is to say, the payment waiver) would not be recovered.
62. The Commission ' s observations relate mainly to the fact that the TAB loan and the novation of the bank guarantee were aid measures which were not notified. The Commission also points out that the delays are attributable to the fact that it did not have the necessary information to reach a decision because of delaying tactics on the part of the German authorities. The principle of sound administration, far from requiring that a procedure such as that in the present case should not be split into two parts, actually obliged the Commission to adopt as soon as possible, in the general interest of the competitors of the recipient, a decision on the aspects on which it had sufficient information, that is to say, the payment waiver.
63. The President of the Court of First Instance considers it necessary to observe first of all that the classification of the TAB loan and the novation of the bank guarantee as non-notified aid measures presupposes that those measures were aid within the meaning of Article 87(1) EC. However, one of the pleas in the main proceedings to which the applicant in the present procedure refers is precisely that the said measures did not constitute State aid. Furthermore, the applicant claims that the loan is covered by an authorised general aid scheme. Consequently the scope of the examination of the prima facie case which must be made by the President of the Court cannot depend on a premiss, namely the existence of a non-notified aid measure, which goes to the very heart of the assessment of the prima facie case (see the order in
Commission
v
Technische Glaswerke Ilmenau, cited above, paragraph 60).
64. Regarding the alleged illegality of the decision to split the two procedures, it must be observed that, when opening the first formal investigation procedure, the Commission stated that it doubted whether the TAB loan was consistent with Article 87(1) EC and whether it could be approved under Article 87(3)(c) EC. In the first decision, the Commission observed (paragraph 41) that it had requested information in order to determine, in particular, whether the loan complied with the aid scheme which had already been authorised and on the basis of which the loan had allegedly been approved. In those circumstances the Commission decided,
" in order to avoid delaying further the decision on the [payment waiver, that it would] close the formal procedure with a final decision on [the payment waiver]"
(paragraph 42). However, the Commission gave no indication as to the alleged responsibility of the German authorities for the delay between 4 April 2000, when the Commission informed Germany of its decision to open the first formal procedure (see paragraph 12 above), and the (unspecified) date of the abovementioned request for information. As it is common ground (see paragraph 13 above) that there were contacts on several occasions between the Commission and the German authorities after the said procedure was opened, the President of the Court of First Instance cannot, in view of the information available, find that the German authorities are responsible for the delay. It is clear from the file that it is equally possible that the delay was, at least in part, attributable to the Commission.
65. The conducting of administrative procedures within a reasonable period is a general principle of Community law, compliance with which is enforced by the Community judicature (Case C-282/95 P
Guérin Automobiles
v
Commission
[1997] ECR I-1503, paragraphs 36 and 37; Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and C-254/99 P
Limburgse Vinyl Maatschappij and Others
v
Commission
[2002] ECR I-8375, paragraphs 167 to 171), such right being reiterated, as an element of the right to good administration, by Article 41(1) of the Charter of Fundamental Rights of the European Union, proclaimed at Nice on 7 December 2000 (OJ 2000 C 364, p. 1). Therefore this principle applies in the context of a procedure for the examination of State aid (see, to that effect, Joined Cases C-74/00 P and C-75/00 P
Falck and Acciaierie di Bolzano
v
Commission
[2002] ECR I-7869, paragraph 140). However, the mere adoption of a decision after the expiry of a reasonable period is not in itself sufficient to render unlawful a decision taken by the Commission at the conclusion of a formal investigation procedure conducted under Article 88(2) EC (see, by analogy, Joined Cases T-305/94 to T-307/94, T-313/94 to T-316/94, T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94
Limburgse Vinyl Maatschappij and Others
v
Commission
[1999] ECR II-931, paragraphs 121 and 122; Case T-26/99
Trabisco
v Commission
[2001] ECR II-633, paragraph 52; and Case T-62/99
Sodima
v Commission
[2001] ECR II-655, paragraph 94). Consequently it is necessary to examine the applicant ' s submission concerning the allegedly prejudicial effects which flowed from the allegedly unjustified delay of 31 months resulting from the splitting of the formal investigation procedure.
66. The applicant notes, in particular, that the contested decision refers to the obligation to recover the amount of the payment waiver, ordered by Article 2 of the first decision, as one of the factual matters on the basis of which the Commission reaches the conclusion that the restructuring plan of 19 April 2001 could not be implemented and could not therefore be regarded as viable (paragraphs 132 to 141). The President of the Court of First Instance therefore considers that the argument that the new investor ' s undertaking of 4 March 2002, when placed in the context of all the measures notified by Germany on 1 December 1998 and the prospects for the applicant ' s eventual recovery, described in the first and second Pfizenmayer reports, would have led the Commission, if the first formal investigation procedure had not been split, to adopt a different decision, is not entirely without foundation. It cannot be ruled out, on reading the part of the contested decision relating to the new investor (paragraphs 135 to 141), that the existence of the first decision and, therefore, the division of the procedure on the basis of which it was adopted influenced the Commission ' s findings when it subsequently adopted the contested decision.
Whether the TAB loan was in the nature of State aid
67. The applicant contends that the TAB loan does not possess all the characteristics of aid for the purpose of Article 87(1) EC. Taking account of the rate of interest (namely ...% per annum) and the fact that the loan is secured by a charge and a personal guarantee of the owner of the company, the applicant claims that the loan was granted on market conditions and therefore that the loan brought the applicant no financial advantage whatever. In the contested decision the Commission ought at least to have shown what the aid element in question consisted of. Moreover, in granting the loan through the TAB, the Land of Thuringia was guided by considerations similar to those of a holding company or a private group of companies carrying out a global policy at group level because the loan enabled the Land to proceed swiftly to the creation of the TRP.
68. The applicant also claims that the TAB loan served to offset the civil law claim which it had against the Land of Thuringia because of the loss resulting from the demolition of the old frit house. The applicant refers to Article 2 of the loan agreement, which states that the loan was to be used to replace the demolished building. The Commission manifestly erred in finding, in the contested decision, that although the expenditure in which the applicant had been involved was indemnifiable, the applicant ought to have been given a grant and not a loan. As it was common ground that the applicant had no right to use the building indefinitely, the loan in the present case was the proper measure of compensation for covering the costs occasioned by the need to find other means of supplying the fourth furnace, and those costs had been incurred prematurely.
69. In reply to the submission that the TAB loan was granted on market conditions, the Commission replies that, in view of its precarious financial situation, the applicant would never have obtained the loan on the very favourable market conditions on which it did obtain it (described in paragraphs 107 to 116 of the contested decision). In referring to how a rational private operator in the position of the Land of Thuringia would have acted, the applicant forgot that it was necessary in principle to adopt the viewpoint of the beneficiary of the loan, not that of the lender (Joined Cases T-228/99 and T-233/99
Westdeutsche Landesbank Girozentrale and Land Nordrhein-Westfalen
v
Commission
[2003] ECR II-435, paragraph 178 et seq.). With regard to the civil law claim which the applicant purports to have against the Land, the Commission, supported by the intervener, contends that such a claim cannot be satisfied by a loan. According to them, a civil law claim seeking a kind of
" compensatory loan"
does not exist at all in German law.
70. The President of the Court considers that the applicant ' s argument that, having regard to the conditions of the TAB loan, it could have been granted to the applicant by a rational private operator acting in normal market conditions and in a position similar to that of the Land of Thuringia, is not entirely unfounded. Although the Land had a certain obligation arising from the possible rights acquired by the applicant with regard to the use of the old frit house and the costs prematurely incurred by the applicant owing to its demolition by the Land, all these being matters which can only be verified by the court dealing with the substance of the case, the possibility cannot be ruled out that a rational private investor would have granted the loan in question, notwithstanding the doubtful nature of the securities offered, while stipulating, as in this case, that the money lent should be used for the construction of a new building to replace the one demolished. Even if the judgment in
Westdeutsche Landesbank Girozentrale and Land Nordrhein-Westfalen
v
Commission, cited above (particularly paragraph 328), must be interpreted in the manner proposed by the Commission and account must therefore be taken of the beneficiary ' s viewpoint, it is not entirely unreasonable, at least prima facie, to accept that the applicant considered in February 1998, as it observes in its reply to the questions, that the grant of a loan and, consequently, the rapid payment of the corresponding funds were such as to enable the applicant to undertake the measures necessary to make good the loss of the use of the old frit house and constituted a satisfactory settlement of the potential action which it could have brought against the Land.
Compatibility of the alleged aid
71. The applicant also contends that the TAB loan was covered by a general aid scheme (namely the
" Thüringer Konsolidierungsfonds"
(Thuringia consolidation fund) authorised by Decision NN 74/95 SG (96) D 1946 of 6 February 1996), particularly by reason of the fact that the applicant was a medium-sized enterprise at the time the loan was paid on 30 November 1998. The applicant claims, by analogy with the reasoning of the judgment in Case T-126/99
Graphischer Maschinenbau
v
Commission
[2002] ECR II-2427, that the national authorities must have a broad discretion in connection with complex economic assessments concerning the implementation of aid schemes which have been notified and authorised. The applicant adds that, if the Commission were free to replace the national authority ' s economic assessment with its own, it would have unlimited power. In the present case, instead of merely verifying that the TAB ' s decision to grant the loan through the Thüringer Konsolidierungsfonds was legal by reference to the aid scheme in question, the Commission had wrongly examined the loan directly and solely by reference to its own guidelines (paragraph 109 of the contested decision).
72. With regard to the alleged compatibility of the TAB loan with the rules of the Thüringer Konsolidierungsfonds, the Commission observes that, in circumstances like those of the present case, the national authorities are subject to the Commission ' s supervision pursuant to Article 87(3) EC. Consequently they could not exercise any discretion with regard to the legality of a specific aid measure. Furthermore, the decision not to allow application of the rules of the Thüringer Konsolidierungsfonds was entirely justified in view of the guidelines and the fact that there was no viable restructuring plan at the time when the TAB loan was granted.
73. It is clear that there is a genuine difference of opinion between the parties as to the assessment of the manner in which the Commission ought to have examined the question of the compatibility of the TAB loan with the Thüringer Konsolidierungsfonds. The President of the Court finds that the applicant ' s argument is largely based on the assertion that it was a medium-sized enterprise at the time when the loan was paid and this fact was not taken into account by the Commission. The possibility cannot be ruled out that this assertion, if it is true, would have been a relevant factor for the purpose of correctly applying the rules of the said fund. However, according to the contested decision,
" it matters little whether TGI can be described as a [medium-sized enterprise] [and] this question is not examined further in the framework of the procedure"
(paragraph 88).
74. It has consistently been held that individual aid measures, regarded as existing aid, can only be checked by the Commission in the light of the conditions which it set out in the decision approving the general scheme (Case C-47/91
Italy
v
Commission
[1994] ECR I-4635, paragraph 24; Case C-278/95 P
Siemens
v
Commission
[1997] ECR I-2507, paragraph 31; and Case T-82/96
ARAP and Others
v
Commission
[1999] ECR II-1889, paragraph 48). Although it is true, as the contested decision finds (paragraph 109), that
" the conditions of the aid scheme correspond to those of the Community guidelines for rescue and restructuring"
and that the latter conditions
" are not fulfilled", in the present case these findings are not sufficient on their own to refute the applicant ' s argument. Therefore the President of the Court cannot rule out the possibility that the Commission erred in law in that respect.
Conclusion
75. It follows that three of the pleas in law raised by the applicant do not prima facie appear to be unfounded (order of the President of the Court of Justice in Case C-149/95 P(R)
Commission
v
Atlantic Container Line and Others
[1995] ECR I-2165, paragraph 26, and the TGI order, paragraph 88). In those circumstances, the present application cannot be dismissed on the ground that a prima facie case has not been made out and it is therefore necessary to consider whether it satisfies the condition of urgency.
Urgency
Arguments of the parties
76. The applicant claims that the provisional measure it seeks is necessary to prevent serious, irreparable damage to itself by reason of the immediate operation of Article 2 of the contested decision. If the decision is implemented, the company will go into liquidation or, alternatively, will suffer the irremediable loss of its market position. The applicant also pleads the financial consequences and the personal damage to Mr Geiß in terms of credibility, reputation and social situation if insolvency proceedings are opened. This serious damage could not be made good at a later date and justified urgency.
77. TGI adds that, having reduced the outstanding amount of the loan at 31 December 2002 to a balance of EUR ..., it has insufficient reserves to raise the balance in the short period available for avoiding the opening of insolvency proceedings if the present application is dismissed. In this connection TGI refers to the fifth Pfizenmayer report, which states that, notwithstanding the progress which TGI could be expected to make in 2003, the exceptional and high costs entailed in financing the reconstruction of the second furnace in 2002 and the cost of the miscellaneous investments which it must meet in 2003 leave it with a much reduced cash flow. In addition, it is necessary to plan the cost of the investments necessary for the periodic renovation of the first and fourth furnaces, planned for 2004. In the reply to the questions, TGI stresses that it has no right to indemnification from the Land of Thuringia in relation to the cost of demolishing the old frit house. In addition, Mr Geiß has only limited private resources which, in spite of the guarantee given by him to TAB, do not permit him to repay the balance. As for the guarantee, the fact that it was accepted by TAB at the time when Mr and Mrs Geiß also owned two other companies, notwithstanding the absence of a cross-guarantee, was consistent with the practice of German banks, which stress the personal liability of shareholder directors for loans.
78. In its written observations, the Commission observes that, bearing in mind that Mr Geiß, according to the written observations lodged by Germany in the new formal procedure, waived his director ' s bonus of DEM 1 million from 1997, he must have received a bonus of that amount for several years from the formation of the applicant company in 1994. Therefore he ought to have been able to advance to the company, from his own funds, the amount to be repaid pursuant to the contested decision. In any case, he could at least obtain a personal loan from a private bank on market terms to repay the balance of the TAB loan.
79. At the hearing this argument was repeated by the Commission, supported by the intervener. The intervener observed that payment must be possible, for the purpose of German insolvency law, where a debtor can obtain a bank loan on the strength of a guarantee. The intervener questioned why the applicant had never tried to obtain damages on the basis of its alleged civil law claim against the Land of Thuringia. A director of a company such as the applicant had an obligation to assert such rights. A claim of that kind could even be sold to a bank or charged in return for a credit facility. Therefore the applicant cannot really claim that it is short of cash funds. In its written observations, the intervener adds that the applicant could resist a demand by TAB for repayment on the basis of its loan by pleading a right of retention ( " Zurückbehaltungsrecht" ) under Paragraph 273(1) of the German Civil Code. In any case, in seeking repayment, TAB would act according to the rules of a market economy and therefore would not risk the applicant becoming insolvent, particularly in view of the amount of the loan already repaid.
80. The Commission, in its additional observations, maintains that the reply to the questions shows a manifest contradiction between the applicant ' s position for the purpose of the present application for interim relief and its position in relation to the main proceedings, concerning the true value of the guarantee given by Mr Geiß in the TAB loan agreement. If it is true that the guarantee has no value of its own, as stated in the reply to the questions, TGI cannot claim in substance that the loan was granted on market conditions. Furthermore, TAB ' s letter annexed to the reply contradicts the applicant ' s assertion. Finally, it is highly unlikely that Mr Geiß, who, according to the documents lodged on 3 April 2003, received remuneration from the applicant totalling EUR ... between 1994 and 2003, failed to build up capital of his own.
Findings of the President of the Court
81. First of all, it is necessary to reiterate the legal findings in paragraphs 96 to 99 of the TGI order.
82. In the present procedure, it is clear from the fifth Pfizenmayer report that the obligation to repay the balance of approximately EUR ... of the TAB loan and to provide the BvS with a new first mortgage or charge for its claim in respect of the balance of the purchase price is very likely to bring about the applicant ' s insolvency.
83. This is not seriously disputed by the Commission which, in essence, argues that Mr Geiß probably has resources of his own which he could use either to repay the said balance or to provide a new bank guarantee which would enable him to borrow the necessary funds. However, it is clear from the declaration on honour by Mr and Mrs Geiß, supported by the documents produced to the Court on 4 April 2003, that the personal assets of the owners of TGI are very modest. Consequently another bank would be unlikely to grant them a loan in order to repay the balance of the TAB loan.
84. Regarding the Commission ' s real doubts as to the completeness of that documentation by reason of the fact that, in the light of the remuneration received by Mr G eiß from TGI since 1994, he had not been able to build up his own capital, it is sufficient to observe that the said documentation and the accompanying notes by Mr Pfizenmayer in his report of 26 March 2003 show no reason to question the reliability of the information in the documents. It is clear that Mr Geiß ' s remuneration, compared with the average salary of the directors of a German company of a similar size, was modest. With regard to his other income, it consists mainly of the relatively small retirement pensions which Mr Geiß receives from Germany. Mr and Mrs Geiß ' s bank statements for 1999, 2000, 2001, 2002 and at 28 February 2003 manifestly bear out the applicant ' s claim that the assets of the owners of TGI are indeed limited.
85. In those circumstances it is not for the President of the Court to speculate as to the apparent inability of Mr and Mrs Geiß to make bigger savings since 1994, as the Commission would have hoped, in view of its insistence on referring to the existence of hidden assets belonging to the owners of TGI, particularly Mr Geiß.
86. In addition, the mere fact that TAB does not appear, in its letter of 2 May 2003 (Annex 3 to the reply to the questions), to consider the guarantee given by Mr Geiß of no value certainly does not prove that he has considerable capital. It probably shows that the bank wishes to emphasise that Mr Geiß is personally liable for the TAB loan.
87. With regard to the alleged obligation to sue the Land of Thuringia for damages, said to exist by the Commission and the intervener, it must be observed that this presupposes the existence of a right in favour of TGI and a direct connection between a breach of that right by the Land of Thuringia and the costs prematurely incurred by the applicant in 1998. According to the applicant, obtaining the loan from TAB meant that it had the best possible compromise in the very difficult circumstances in which it found itself in 1998. In any case, it is by no means certain that bringing an action of the kind envisaged by the Commission and the intervener would be sufficient, given the fragile cash situation in which TGI still finds itself, to avoid insolvency if the present application is dismissed. The President of the Court considers it unlikely that an action by TAB for repayment of the loan would be suspended or dismissed by a German court by reason only of a possible right of retention under Paragraph 273(1) of the German Civil Code, which could be claimed by TGI on the basis of the alleged obligation to TGI of the Land of Thuringia.
88. In addition, regarding the intervener ' s submission concerning the foreseeable conduct of TAB, the letter of 28 November 2002 (see paragraph 27 above) does not show that TAB, in seeking to obtain the repayment claimed in the letter, would not risk bringing about the applicant ' s insolvency.
89. However, it is clear from the present application for interim relief and from the fifth Pfizenmayer report that the applicant would be in a position, within a period shorter than that allowed by TAB on 28 November 2002, to repay the balance of the loan in question in the course of this year. With regard to the demand of 27 November 2002 by the BvS, the applicant could then provide a new first mortgage to secure payment of the balance of the purchase price. These facts are expressly recognised in the very specific proposals of the settlement outlined in that demand. At the hearing, the applicant even confirmed that it might be possible for it to repay the balance of the TAB loan in September 2003, if not earlier. However, it added, everything would depend on the additional amount which the President of the Court might order it to repay the BvS for the 2003 financial year in the context of the application of 17 February 2003 for an extension of the suspension of operation ordered in the TGI order.
90. According to the most recent figures produced by the applicant (see Annex 7 to the reply to the questions), dated 24 April 2003, at 31 December 2003 it will probably have resources totalling EUR ... . This estimate takes into account the possible repayment of the balance of the TAB loan. Therefore it is clear that TGI would be in a position to repay the said balance by the end of the year.
91. However, the possibility of later payment cannot be separated from the very special circumstances of this case, where the contested decision is itself the result of the fiercely contested breaking-off of a formal investigation procedure. Consequently, for the purpose of the present application for interim measures, the matter does not cease to be urgent merely by reason of that possibility. On the contrary, the President of the Court considers it appropriate to take account of the overall situation arising from the present case and from the application for an extension of the suspension ordered in Case T-198/01 R by the TGI order. As the Commission asks that the applicant repay the BvS at least EUR 1 million before 31 December 2003 in that case, it is manifest that TGI cannot meet both demands simultaneously without soon becoming insolvent.
92. Consequently it is necessary to determine whether the requirement of urgency is met in the present case. For this purpose, all the interests at stake must be weighed up.
Weighing of interests
93. The applicant pleads the same interests as those in Case T-198/01 R (see paragraphs 110 and 111 of the TGI order). The applicant contends that, as the factual circumstances have not fundamentally changed, the weighing of interests should lead to the same conclusion. In particular, the fact that the Commission artificially divided the package of measures notified by Germany on 1 December 1998 weighs in favour of such a conclusion. With regard to the intervener ' s interest, the applicant alleges that the intervener obtained much larger grants than any the applicant may have received, both in the early 1990s, when Jenaer Glaswerk was privatised, and more recently. In support of the latter claim, TGI refers to a press release of 16 October 2002 relating to Schott Glas (Annex 8 to the application for interim measures), according to which Schott Glas received government aid from the Land of Thuringia totalling EUR 80 500 000 in 2002 for the construction of a factory there. Consequently TGI disputes what it calls the simplistic conclusion that the recovery of aid, particularly in the present case, is always in the Community interest.
94. In its additional observations, the Commission defends its position at the hearing, namely that in the present case there are no longer any exceptional circumstances for the purposes of paragraph 116 of the TGI order. On this point the Commission notes that the total aid in question in the two cases taken together, taking account of interest, is now considerably higher, in relation to the total aid of DEM 67 425 000 (EUR 34 473 855) received by TGI (TGI order, paragraph 117), than the 6% of the total referred to by the President of the Court in that order. Moreover, 10 undertakings present in the applicant ' s market could profit from the repayment of the aid in question. Finally, the Commission supported by the intervener, observes that, in the sector producing goods which compete with TGI ' s products, the intervener is more or less comparable in size to the applicant.
95. The President of the Court considers that, in conformity with the reasoning set out in paragraphs 115 to 117 of the TGI order, there are also exceptional and highly specific circumstances in the present case which favour the grant of interim measures.
96. This conclusion is in no way affected by overall consideration of the amount of the contested aid in the two cases, which remains very small in relation to the total aid received by TGI, to which no objection has been raised by the Commission. Regarding the intervener ' s position, although its intervention has demonstrated in more detail the respective sizes of Schott Glas and TGI in the relevant glassware sector, the fact remains that the former is part of a group which has a much larger turnover than the applicant. Furthermore, it appears that the intervener has very recently received a very large grant, apparently approved by the Commission, from the Land of Thuringia, whereas the disputed grants of aid in these proceedings and in Case T-198/01 R date back to 1998.
97. However, in view of the Community interest in actually recovering State aid, including aid for restructuring, which is in principle granted to undertakings in economic difficulty, suspension of the complete implementation of the contested decision until judgment is given in the main proceedings cannot be justified.
98. On the other hand, in the very particular circumstances of the present case, limited provisional measures are justified and are an adequate response to the need for effective provisional legal protection.
99. While respecting the general interest in the recovery as soon as possible of State aid which is found incompatible with the common market and is ordered to be recovered, as the applicant indeed recognises in the present case in view of the specific proposals of the settlement, suspension of the operation of the contested decision must be ordered until 31 October 2003.
100. The said suspension must be made subject to the following conditions: first, the applicant must, not later than 30 September 2003, repay TAB the sum of EUR ... and within a week of making that payment and by 7 October 2003 at the latest must lodge at the Registry of the Court of First Instance and at the Commission written proof of that payment; second, the first charge in favour of TAB on the site of the fourth furnace must be released and signed again, not later than 10 October 2003, in favour of the BvS in order to secure the latter ' s right to repayment of the balance of the purchase price of asset deal 1; third, a guarantee similar to the personal and directly enforceable guarantee given by Mr Geiß on 3 March 1998 for the repayment of the TAB loan must be given by him in favour of the BvS, not later than 10 October 2003, with regard to the balance of the purchase price of asset deal 1; fourth, written proof of the novation of the securities, required in accordance with the second and third conditions mentioned above, must be lodged at the Registry of the Court of First Instance and at the Commission not later than 17 October 2003.
(1) .
(1) Confidential information not disclosed.
Operative part
On those grounds,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
hereby orders:
1. The operation of Article 2 of Commission Decision C(2002) 2147 final of 2 October 2002 on State aid (C 44/2001) granted by Germany in favour of Technische Glaswerke Ilmenau GmbH is suspended until 31 October 2003.
2. The said suspension is subject to the following conditions: first, the applicant must, not later than 30 September 2003, repay Thüringer Aufbaubank the sum of EUR ... and within a week of making that payment and by 7 October 2003 at the latest must lodge at the Registry of the Court of First Instance and at the Commission written proof of that payment; second, the first charge in favour of Thüringer Aufbaubank on the site of the fourth furnace must be released and signed again, not later than 10 October 2003, in favour of the Bundesanstalt für vereinigungsbedingte Sonderaufgaben in order to secure the latter ' s right to repayment of the balance of the purchase price of asset deal 1; third, a guarantee similar to the personal and directly enforceable guarantee given by Mr Geiß on 3 March 1998 for the repayment of the Thüringer Aufbaubank loan must be given by him in favour of the Bundesanstalt für vereinigungsbedingte Sonderaufgaben, not later than 10 October 2003, with regard to the balance of the purchase price of asset deal 1; fourth, written proof of the novation of the securities, required in accordance with the second and third conditions mentioned above, must be lodged at the Registry of the Court of First Instance and at the Commission not later than 17 October 2003.
3. The costs, including those incurred by the intervener, are reserved.