2002/286/EC,ECSC: Commission Decision of 20 December 2001 on the measure which Germany is planning to implement in favour of the steel company Georgsmarienhütte Holding GmbH (Text with EEA relevance) (notified under document number C(2001) 4510)
Date: 2001-12-20
Institutions: European Commission
Subjects: Germany, State aid, application of EU law, control of State aid, iron and steel industry

20.4.2002

EN

Official Journal of the European Communities

L 105/33

COMMISSION DECISION

of 20 December 2001

on the measure which Germany is planning to implement in favour of the steel company
Georgsmarienh(cid:252)tte Holding GmbH

(notified under document number C(2001) 4510)

(Only the German text is authentic)

(Text with EEA relevance)

(2002/286/EC, ECSC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

(2)

Having regard to the Treaty establishing the European
Community, and in particular the first subparagraph of Article
88(2) thereof,

Having regard to the Treaty establishing the European Coal
and Steel Community, and in particular Article 4(c) thereof,

(3)

Having regard to the Agreement on the European Economic
Area, and in particular Article 62(1)(a)
read in
conjunction with protocol 14,

thereof

By letter dated 8 June 2001, the Commission informed
Germany that it had decided to initiate the procedure
laid down in Article 88(2) of the EC Treaty and Article
6(5) of Commission Decision No 2496/96/ECSC
(hereinafter referred to as the Steel Aid Code) in respect
of the aforementioned measure. The Commission called
on interested parties to submit their comments.

The United Kingdom Steel Association,
the United
Kingdom Permanent Representation and the beneficiary
company GMH sent comments in the context of the
procedure. On 7 August 2001 and 23 August 2001, the
Commission forwarded these comments to Germany,
which made its comments thereon by letter dated 23
August 2001 and 20 September 2001.

Having regard to Commission Decision No 2496/96/ECSC of
18 December 1996 establishing Community rules for state aid
to the steel industry (1),

(4)

Germany responded to the opening of procedure by
letter dated 17 July 2001 and 19 October 2001.

Having called on interested parties to submit their comments
pursuant to the provisions cited above (2),

2. DETAILED DESCRIPTION OF THE MEASURE

Whereas:

1. PROCEDURE

(1)

By letter dated 31 August 2000 Germany notified the
Commission of an asset sale between the receivers of
the steel company Stahl Gr(cid:246)ditz and its subsidiaries on
the Georgs-
the one side and two subsidiaries of
marienh(cid:252)tte Holding GmbH (hereafter GMH) on the
other side (3).

(1) OJ L 338, 28.12.1996, p. 42.
(2) OJ C 199, 14.7.2001, p. 4.
(3) The
buyers of

the

assets

Einhundertvierzigste KOPA
are
Verm(cid:246)gensverwaltungsgesellschaft mbh and Einhundertvierund-
vierzigste KOPA Verm(cid:246)gensverwaltungsgesellschaft mbh, which are
two subsidiaries of Georgsmarienh(cid:252)tte Holding GmbH. In context
of the asset sale the term GMH refers also to this two subsidiaries.

(5)

subsidiaries (4)
Gr(cid:246)ditzer Stahlwerke GmbH and its
(hereafter: Gr(cid:246)ditzer) are located in Saxony. Since 1990
Gr(cid:246)ditzer has been owned by the Treuhandanstalt
(THA) and its public successors,
respectively EREL
Verwaltungs GmbH und Co Management KG (EREL),
Beteiligungs-Management-Gesellschaft mbH (BMGB),
and, lastly, the BvS.

(6)

On 25 February 1997 BMGB entered into an agreement
(cid:145)Kauf und Abtretungsvertrag (cid:252)ber Gesch(cid:228)ftsanteile(cid:146)
(hereafter: privatisation agreement) with the Georgs-

(4) On 20 April 1999 Gr(cid:246)ditzer Stahlwerke GmbH sold its assets and
liabilities (cid:151) and thus its economic operations (cid:151) to the newly
created Edelstahl Gr(cid:246)ditz GmbH and Stahlwerk Gr(cid:246)ditz GmbH
which are subsidies of Stahl Gr(cid:246)ditz Holding GmbH. The sole
In the
shareholder of Stahl Gr(cid:246)ditz Holding GmbH is BvS.
meantime Stahl Gr(cid:246)ditz GmbH sold the shares
two
subsidiaries to Gr(cid:246)ditzer Stahlwerke GmbH.

in this

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Official Journal of the European Communities

20.4.2002

marienh(cid:252)tte group (5) in order to privatise Gr(cid:246)ditzer to
the latter.

in

the

form of

successors

guarantees

Over the years before its privatisation Gr(cid:246)ditzer received
important amounts of State aid, mainly from THA and
its
and
shareholders loans. New aid has been paid under the
privatisation agreement. The privatisation agreement
that GMH would obtain legal
provided therefore
ownership in Gr(cid:246)ditzer only after approval, by the
Commission, of State aid paid and to be paid to
Gr(cid:246)ditzer.
provided
however that GMH was entitled to manage the affairs of
legal
Gr(cid:246)ditzer, while
ownership.

privatisation

agreement

awaiting

transfer

The

the

of

Stahlwerke GmbH and

On 8 July 1999 the Commission adopted Decision
the State aid to
1999/720/EC, ECSC in respect of
Gr(cid:246)ditzer
subsidiary
Walzwerk Burg GmbH (6). The Commission decided,
that State aid of DEM 239 million was
inter alia,
incompatible with the ECSC and the EC Treaty and had
to be recovered.

its

As a consequence of this decision GMH and the BvS,
the
contractor BMGB,
terminated the privatisation agreement.

successor

initial

legal

of

the

In view of
the privatisation
termination of
agreement, which left Gr(cid:246)ditzer without management, a
new management contract was concluded between BvS,
Gr(cid:246)ditzer and GMH (7).

(7)

(8)

(9)

(10)

(11) At the same time BvS undertook steps to recover the
incompatible aid from Gr(cid:246)ditzer. As this led to a
heavily indebtedness of Gr(cid:246)ditzer,
insolvency was
largest creditor. Gr(cid:246)ditzer
applied for by BvS,
its
Stahlwerke GmbH was
provisional
in
declared
insolvency by the Dresden bankruptcy Court on 20
September 1999 and in insolvency on 17 January 2000.
On the same date its subsidiaries Stahlwerk Gr(cid:246)ditz
GmbH and Edelstahl Gr(cid:246)ditz GmbH were declared in
provisional insolvency.

(12)

The management contract was terminated with the
the
opening

proceedings

insolvency

against

of

(5) Legally the parties

to the agreement were Georgsmarienh(cid:252)tte
GmbH and Georgsmarienh(cid:252)tte Verwaltungsgesellschaft mbH at
Georgsmarienh(cid:252)tte,
Grundst(cid:252)ckverwal-
tungsgesellschaft mbH, at Castrop-Rauxel. GMH Holding GmbH
was created in 1998 as a holding company after an internal
restructuring of the Georgsmarienh(cid:252)tte group.

Bladenhorster

and

(6) OJ L 292, 13.11.1999, p. 27.
(7) On 28 November 2001 the Commission took a final decision on
the

It concluded that

the terms of
the management contract.
measure did not contain State aid to GMH.

contract was

subsidiaries on 1 April 2000. At the same time a new
concluded between the
management
receivers of Gr(cid:246)ditzer and GMH. The validity of this
contract was
in the meantime extended until 31
December 2001.

(13) On 31 August 2000 Germany notified a going-concern

asset sale of Gr(cid:246)ditzers assets by its receivers to GMH.

(14)

In order to sell
the receiver of Gr(cid:246)ditzer
conducted a public tender. The bidding procedure was
described by Germany as follows:

the assets,

(15)

(16)

In December 1999 the sale of assets of Gr(cid:246)ditzer was
announced in national and international press (FAZ; FT).
Potentially interested parties (on the basis of a shortlist
of
the world) were
directly contacted. The value of the assets was estimated
and published by the provisional receiver of Gr(cid:246)ditzer
Stahlwerke GmbH as DEM 103 million (8).

some 120 companies all over

The deadline to submit offers was set at 29 February
2000 with a possibility of due diligence investigations in
January/February 2000. On 17 February 2000,
the
deadline to submit offers and to undertake due diligence
investigations was extended until 14 March 2000 as a
result of the resignation and replacement of the receiver
in the insolvency of Gr(cid:246)ditzer Stahlwerke GmbH. The
extended
newly
sale was
deadline in the same press as
announced before. On 25 February 2000 a letter to all
potential
interested parties also communicated the
extended deadline. The bidders were also informed that
a take-over of cash, bank deposits or liabilities was not
possible as an asset deal was involved.

appointed receiver published the
the asset

(17)

Several companies showed interest
in the assets of
Gr(cid:246)ditzer and arranged due diligence investigations.
Four companies made an offer for all assets. One of
these offers was rejected as it was received after the
deadline 14 March 2000 (9). No offer was received for
single assets.

(cid:151) Edelstahl

JP

GmbH

Schumacher

a D(cid:252)sseldorf based steel

(hereafter
trading
Schumacher),
company made an offer on 25 February 2000. The
offer was DEM 13 million including take-over of
liabilities,

(8) Estimated in November 1999 by the certified Auktionshaus
Dechow and Mr Rolf A. Hartmann for a going-concern asset sale
out of insolvency. The value of the assets in a break-up sale was
estimated as DEM 18 million.

(9) H(cid:246)ltger Edelstahl & Partner offered DEM 20 million for the assets

of Gr(cid:246)ditzer.

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Official Journal of the European Communities

L 105/35

(cid:151) GMH made an offer on 24 February 2000 of DEM
liabilities of
15 million including take-over of
approximately DEM 31 million. On 13 March 2000
GMH revised its offer, excluding liabilities, to DEM
45 million,

3. THE PROCEDURE

(23)

The formal investigation procedure was initiated as the
Commission had doubts

(cid:151) Max Aicher group (hereafter Aicher group) made an
offer on 14 March 2000 of DEM 35 million
take-over of
including an envisaged additional
liabilities and cash.

(a) whether the sales procedure could be regarded as
open,
transparent and unconditional and whether
therefore the final sales price offered from GMH
could be regarded a market price;

(18)

(19)

creditors was

The creditor’s committee asked on 30 March 2000 the
receivers of Gr(cid:246)ditzer and its subsidiaries to negotiate
bilaterally with the three parties who made an offer
until the deadline expired. The best possible offer for
the
chosen. Bilateral
then to be
negotiations on the basis of a draft sales contract took
place between April and June 2000. During these
negotiations
that
insolvency law prohibited a take over of liabilities as it
could favour certain creditors.

the bidders were again informed,

Schumacher informed the receivers in May 2000 that
from his offer approximately DEM 23 million had to be
deducted as he envisaged costs for the take over of staff
as provided by the German law, for certain other fees
and for unspecified burdens of the past. This would
have led to a negative sales price. The receiver informed
Schumacher again on 5 June 2000 that the asset sale
had to follow German insolvency law, which did not
provide for a negative sales price. As no reaction of
Schumacher was received, the receiver considered the
negotiations as failed.

(20) On 21 June 2000 the Aicher group withdrew from its
offer by a letter. As reason it stated that it needed its
financial capacity to bid for the assets of Bayerische
Maxh(cid:252)tte as the receiver had put them for sale.

(21) GMH remained the only bidder. The negotiations were
concluded on 7 July 2000 and resulted in an
approximate purchase price of DEM 59 million (10).

(22)

The (various) sales contracts contain a clause that their
entry into force is subject to Commission approval. This
shall
clause also states
request a Commission decision which ensures, that the
buyer will not be liable for responsibilities of the seller
resulting from recovery of incompatible aid.

the contractual parties

that

(10) The final sales price will be adjusted to take into account the value
of claims and inventories on the day the sales contract enters into
force. The claims will be valued at 80 % and the inventories with
DEM 26,3 million, provided the value differs not by more than
10 %.

(b) whether GMH did or would not benefit in the future
from State aid by the award of the management
contract; and

(c) whether GMH had benefited from the incompatible
in relation to its

to Gr(cid:246)ditzer

granted

aid
privatisation in some other way.

(24)

The Commission had therefore doubts whether the asset
sale might contain State aid to GMH and whether such
aid would be compatible with the EC Treaty and the
ECSC Treaty.

4. COMMENTS FROM GERMANY AND OTHER INTERESTED
PARTIES

(25)

The United Kingdom Steel Association and the United
Kingdom Permanent Representation support the initial
doubts raised by the Commission. The United Kingdom
steel association also submitted information indicating
that the bidding procedure was not carried out in an
open and transparent manner, as the opportunity to
carry out a full and proper appraisal of the Gr(cid:246)ditzer
business was not given in a timely manner
to all
interested parties. The difference from the sales price to
the expert estimate of DEM 103 million for the assets
would therefore contain State aid to GMH. The United
Kingdom Steel Association and the United Kingdom
Permanent Representation indicate further that, in case
the terms of the management contract are not market
conform, they also would contain State aid to GMH.
Moreover, as Gr(cid:246)ditzer was already integrated in the
GMH group since 1997, the incompatible aid granted to
Gr(cid:246)ditzer in relation to its privatisation should also be
recovered from GMH.

(26) Germany

beneficiary
provided the following comments:

and

the

undertaking GMH

(27)

procedure: The

procedure was

Sales
open,
sales
transparent and unconditional. It was conducted by the
receivers of Gr(cid:246)ditzer who have to obtain the best result
in the interest of all creditors, including the State. The
sales procedure was
to sales procedures
similar
previously approved by the Commission. All bidders
had enough time and information to conduct due

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Official Journal of the European Communities

20.4.2002

diligence in order to prepare their bids. A sale only on
basis of the offers in the tender would not be possible,
as the value of a company is, contrary to a sale of
buildings, not static. Therefore negotiations had to take
place. In the final negotiations GMH was not aware that
it was the only remaining bidder. As the best and only
offer was accepted, the price paid by GMH is to be
considered the market price.

(28) Management

contract: The management contract was
concluded at market conditions. Therefore the contract
did not contain State aid to GMH.

(32)

(33)

(29)

Spill over: The incompatible aid in relation to the
privatisation of Gr(cid:246)ditzer was not used in the interest of
GMH. Gr(cid:246)ditzer was never integrated into the GMH
group. GMH never obtained legal ownership. The right
important
to manage Gr(cid:246)ditzer was
management decisions had to be taken by the board of
managers (where only one out of 12 members came
from GMH). Investments were undertaken as foreseen in
the investment programs from 1993 and 1995, which
was drafted by the public predecessors of BvS. Also the
main part of the incompatible (operating) aid was used
before the conclusion of the privatisation agreement.

limited

as

(30) An expert appraisal, conducted on the request of GMH,
was submitted on the question, whether GMH profited
from the
aid in relation to the privatisation of
Gr(cid:246)ditzer (11). The experts confirm in their appraisal
that Gr(cid:246)ditzer was neither legally nor economically
integrated in the GMH group. They also confirm that
the
the investments were undertaken on basis of
investment concept of the public predecessors of BvS.
Business transactions between GMH and Gr(cid:246)ditzer were
conducted at arm length. The scope of concluded
(between 2,6 and 5,6 % of
business is insignificant
Gr(cid:246)ditzers
indirect
transfer of liquid funds to GMH took place, the experts
find that GMH did not benefit
from the State aid
granted in relation to the privatisation of Gr(cid:246)ditzer.

turnover). As also no direct or

(31)

and GMH submitted

further
Recovery: Germany
information on the measures taken to comply with
Decision 1999/720/EC, ECSC. Furthermore, as
the
entering into force of the sales contract is subject to
Commission approval, Germany requested again a
Commission position on the question, whether GMH is
aid recipient in the meaning of Decision 1999/720/EC,
ECSC.

(11) Arthur Andersen, July 2001.

5. ASSESSMENT OF THE MEASURE

The Commission considers that GMH Holding GmbH is
is a mere
not an ECSC steel company. However,
holding company of a group of which the majority of
the turnover is generated by ECSC steel companies. It
cannot be excluded that the ultimate beneficiaries of the
notified measures may be ECSC steel companies. The
measure is therefore assessed according to Article 88 (3)
EC Treaty and Article 6 of the Steel Aid Code.

it

BvS and its predecessors are public institution, which
form part of the German administration. BvS is the sole
shareholder and largest creditor of Gr(cid:246)ditzer. It is also
under an obligation to recover debts from Gr(cid:246)ditzer
The
pursuant
Commission notes
the assets of
therefore that,
Gr(cid:246)ditzer were sold at a price below market price, this
would entail a transfer of state resources to GMH.

1999/720/EC,

to Decision

ECSC.

if

(34)

In view of
the above the Commission must assess
whether the assets were sold by the receiver at market
price, either by selling them as a going concern or in a
break up alternative. Otherwise the asset sale might
involve State aid in favour of GMH.

5.1. Were the assets sold at market conditions?

(35) As far as concerns the sales procedure,

the German
authorities contend that
the procedure was open,
transparent and unconditional. It was conducted by the
receivers of Gr(cid:246)ditzer who have to obtain the best result
in the interest of all creditors,
including the state. By
selling the
a going concern the more
assets
favourable alternative was chosen compared to selling
the individual assets. As the best and only offer was
excepted, the price paid by GMH is to be considered the
market price.

as

(36)

(37)

The Commission notes that the negotiated sales price
for a going-concern asset sale is between the estimated
market value (approximately DEM 103 million) and the
estimated value for a break-up asset sale (approximately
DEM 18 million). It appears that no bid was made for a
break-up asset sale.

(DEM
the negotiated sales price
Considering that
59 million)
a going concern sale does not
for
correspond to the estimated market value (DEM 103
million), the Commission needs to establish whether the
sales procedure was appropriate for achieving the
market price for the assets.

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Official Journal of the European Communities

L 105/37

(38)

The
the
investigation procedure was opened as
Commission had doubts whether the sales procedure
was open,
transparent and unconditional and that
therefore the final sales price could be regarded a
market price. GMH was managing the company since
1997. It was provided with the possibility to conduct its
due diligence under operating conditions. Germany did
not provide enough information as to the basis on
which due diligence investigations were offered to the
other bidders. Hence,
the Commission could not
conclude whether all bidders were offered sufficient time
and information in order
their bids.
Furthermore, it was doubtful, whether the fact that the
negotiations were only concluded after it appeared that
GMH was the only remaining bidder, had a negative
impact on the final sales price.

to prepare

(39)

The United Kingdom Steel Association and the United
Kingdom Permanent Representation support the initial
doubt raised by the Commission. The United Kingdom
Steel Association also claims that the bidding procedure
was not carried out in an open and transparent manner,
as one of its members was not given the opportunity to
carry out a full and proper appraisal of the Gr(cid:246)ditzer
business in a timely manner.

(40) Germany and GMH maintain that the receivers offered
interested bidders the possibility to carry out a
to all
proper valuation of the assets in a timely manner as the
basis for their bids. They indicated that every bidder had
the possibility to conduct due diligence investigations
between 7 January 2000 and 28 February 2000. At the
same time visits to Gr(cid:246)ditzer premises were offered.
Germany also submitted a list of the information, which
were provided to interested bidders in order to enable
them to undertake a proper valuation of the assets.

(41) As

the

to the

comments of United Kingdom Steel
interested
Association, Germany indicated that
company in question visited Gr(cid:246)ditzer on 21 February
2000. The receivers offered the necessary information
for a proper appraisal of the assets. The company was
also
for
the
submitting a bid. However, on 1 March 2000 the
company wrote to the receiver
that, after having
reviewed the gathered information, it would not provide
a bid for the assets.

informed

extended

deadline

about

(42) On basis of the information available the Commission
notes that the tender procedure including the way the
call for tender has been announced, the possibility to
bid for the assets in a break-up asset sale or as a
going-concern, the time given to interested parties in
order to carry out a proper valuation of the assets can
be considered as an open tender procedure.

(43)

(44)

(45)

(46)

(47)

in the

The Commission also notes that no other condition
than the take over of staff, as provided by German law
(Subsection 613a Civil Code), were imposed on the
buyer
sales procedure. According to the
information provided by Germany, every bidder was
made aware that in a going-concern asset sale the legal
consequences of Subsection 613a would have to be
applied. Accordingly, every buyer was aware of
the
additional costs, which might be associated with the
application of this article. The buyer could reflect these
costs by adjusting its offer for the assets. Thus the final
offer shall take into account these costs for the buyer.

to

the

due

conduct

possibility

The Commission takes into account that according to
information provided by Germany interested bidders
had
diligence
investigations between 7 January 2000 and 28 February
2000 at the premises of Gr(cid:246)ditzer. This possibility was
extended until 14 March 2000. About 10
later
in the due diligence
companies showed an interest
from the submitted
It also appears
investigations.
information that the bidders were offered the necessary
information in order to enable them to undertake a
proper valuation of the assets.

that

further

The Commission notes
the interested
member of United Kingdom Steel Association wrote on
1 March 2000 to the receiver that it would not submit
a bid in the sales procedure. It did not indicate that its
decision was influenced by the sales procedure. In view
of this and the information provided the Commission
interested bidders were given an
considers
opportunity to carry out a proper valuation of the assets
as the basis for their bids.

that all

to

the

available,

information

The Commission notes that the bidding procedure led
to a situation where GMH remained as the sole bidder.
the
According
circumstances, under which the two other bidders Max
Aicher group and JP Schumacher withdrew appears to
be independent from the sales procedure or the fact that
since 1997. The
GMH was managing Gr(cid:246)ditzer
Commission takes the view that the mere fact, that the
other bidders withdrew shall not lead to the conclusion
that the assets were not sold to the highest bidder.

that

notes

furthermore

Commission

The
the
negotiations with GMH increased the sales price from
DEM 45 million to 59 million DEM. Thus the sales
price shifted in the direction of the evaluated market
price. Due to the increase of
the
amount of
recovered in the
insolvency, should also increase.

aid, which can be

the sales prices,

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Official Journal of the European Communities

20.4.2002

(48)

In view of the above and by taking into account the
the
final sales price,
sales price can be considered to be the market price for
the assets of Gr(cid:246)ditzer.

the Commission concludes that

Gr(cid:246)ditzer and GMH were conducted at (cid:145)arm length(cid:146). The
scope of these transactions was with 2,6 % (cid:151) 5,6 % of
Gr(cid:246)ditzers turnover and 3 % of its material costs rather
insignificant.

(55)

(56)

5.2. Does the management contract contain State aid?

(49)

(50)

In the opening procedure the Commission noted further
that GMH might, by the award of
the management
contract, have benefited from incompatible aid which
could have had an influence on the outcome of the
sales procedure.

The Commission took on 28 November 2001 a final
decision on the question whether
the management
contract contains aid to GMH. In its decision it comes
to the conclusion that the award of the management
contract did not contain State aid to GMH. Insofar GMH
did not benefit from State aid granted to Gr(cid:246)ditzer by
the award of the management contract.

also

into

takes

account

The Commission
that
investments at Gr(cid:246)ditzer were mainly undertaken on
basis of the investment plans of EREL and BMGB, both
public predecessors of BvS. Both investment concepts
were drafted before the privatisation agreement with
GMH was concluded. It does not appear that they were
undertaken for purposes, which are in GMH’s rather
than Gr(cid:246)ditzers interest.

By also taking into account
that no other direct or
indirect transfer of liquid funds of Gr(cid:246)ditzer to GMH
took place the Commission considers that, on basis of
the information provided by Germany, GMH does not
benefit from the incompatible aid granted to Gr(cid:246)ditzer
in relation to its privatisation.

5.3. Did GMH benefit from the incompatible aid granted
to Gr(cid:246)ditzer?

(51)

(52)

(53)

(54)

The Commission had further doubts whether GMH did
or might benefit
in the future from the illegal and
incompatible aid granted to Gr(cid:246)ditzer. The doubts
the privatisation
related to the
agreement nor the management contract was awarded
to GMH following
and
unconditional procedure. Both agreements provided
and integrate
however
Gr(cid:246)ditzer since 1997 into its group.

that GMH could manage

that neither

transparent

open,

fact

an

The United Kingdom Steel Association and the United
Kingdom Permanent Representation supported this
initial doubt of
the Commission, stating that GMH
benefited from the incompatible aid to Gr(cid:246)ditzer as it
was managing it since 1997.

In its comments Germany and GMH reiterate their
position that Gr(cid:246)ditzer was never integrated into the
GMH group. They also indicated that GMH never
obtained
control.
Moreover, Germany submitted an expert appraisal from
which it appears that GMH did or would not benefit
from the incompatible aid granted to Gr(cid:246)ditzer
in
relation to its privatisation.

ownership

economic

legal

or

The Commission notes that, according to the submitted
transactions between
expert

all business

appraisal,

5.4. The recovery

(57) On 19 October 2001 Germany submitted information
on the recovery of
the incompatible aid of DEM
239 million. It indicated again that the sales contract
would only enter into force in case the (cid:145)buyer of the
assets of Gr(cid:246)ditzer is not, in respect of the Commission
Decision 1999/720/EC, ECSC, responsible for liabilities
of the seller or its legal predecessors resulting from the
aid.(cid:146) Germany requested
recovery of
therefore again a Commission position on the question
whether GMH would be liable for the recovery claim of
Gr(cid:246)ditzer.

incompatible

(58)

The Commission recalls that the question of who is
recipient of the incompatible aid granted to Gr(cid:246)ditzer
Stahlwerke GmbH was laid down in the Commission
Decision 1999/720/EC, ECSC. It was explicitly stated in
that decision that
the term (cid:145)recipient(cid:146) comprises not
only Gr(cid:246)ditzer Stahlwerke GmbH but also any other
undertaking to which assets have been transferred in
such a way as to deprive the recovery of incompatible
aid of effect.

(59) As

the
in the opening decision,
stated already
Commission cannot
take in the present case a final
position on the question, whether Germany has taken
all the measures to comply with Commission Decision
1999/720/EC, ECSC.

(60)

The Commission reiterates that it will cooperate with
Germany on basis of Article 10 EC Treaty in view of
the implementation of that decision.

20.4.2002

EN

Official Journal of the European Communities

L 105/39

6. CONCLUSION

Implementation of the measure is accordingly authorised.

(61)

The Commission finds that the measure described above
does not constitute State aid in the meaning of Article
87(1) EC Treaty or Article 4(c) of the ECSC Treaty,

Article 2

This Decision is addressed to the Federal Republic of Germany.

HAS ADOPTED THIS DECISION:

Article 1

Done at Brussels, 20 December 2001.

The measure, which Germany is planning to implement in
favour of Georgsmarienh(cid:252)tte Holding GmbH, does not
constitute aid within the meaning of Article 87(1) of the EC
Treaty or Article 4(c) of the ECSC Treaty.

For the Commission

Mario MONTI

Member of the Commission