2002/823/EC: Commission decision of 3 April 2002 on the State aid granted by the Federal Republic of Germany for ILKA MAFA Kältemaschinenbau GmbH (Text with EEA relevance.) (notified under document number C(2002) 1190)
Date: 2002-04-03
Institutions: European Commission
Subjects: Germany, State aid, aid for restructuring, control of State aid, infringement of EU law, privatisation

L 296/42

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Official Journal of the European Communities

30.10.2002

COMMISSION DECISION

of 3 April 2002

on the State aid granted by the Federal Republic of Germany for ILKA MAFA Kältemaschinenbau
GmbH

(notified under document number C(2002) 1190)

(Only the German text is authentic)

(Text with EEA relevance)

(2002/823/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

(6)

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

Having regard to the Agreement on the European Economic
Area, and in particular Article 62(1)(a) thereof,

Having called on interested parties to submit their comments
pursuant to the provisions cited above (1),

Whereas:

I. PROCEDURE

(1)

(2)

(3)

(4)

By letter dated 27 March 1998 Germany informed the
Commission of restructuring aid for the privatisation of
ILKA MAFA Kältemaschinenbau GmbH (ILKA MAFA)
and its sale to Carrier. However, Carrier withdrew from
the privatisation contract on 31 December 1998.

On 30 December 1999, Germany again notified restruc-
turing aid for the privatisation of ILKA MAFA; the
purchasing company this time was GEA AG. By letter
dated 3 April 2000 Germany provided the Commission
with further information.

By letter dated 1 August 2000, the Commission in-
formed Germany that it had decided to initiate the
procedure laid down in Article 88(2) of the EC Treaty in
respect of the aid to ILKA MAFA.

The Commission decision to initiate the procedure
was published in the Official
Journal of the European
Communities (2). The Commission invited interested par-
ties to submit their comments on the aid.

(5)

The Commission received no comments from interested
parties.

ILKA MAFA is a successor company (3) to the former
ILKA MAFA Kältetechnik GmbH (Ilka-old).
Ilka-old
belonged to a group of eight companies from the former
GDR which were first privatised in 1994 as the EFBE
Verwaltungs GmbH & Co. Management KG, now Lintra
Beteiligungsholding GmbH. Since the original privatisa-
tion concept failed in December 1996, it was decided in
January 1997 by the Bundesanstalt für vereingungsbe-
dingte Sonderaufgaben (BvS) to continue the restructur-
ing of potentially viable Lintra-subsidiaries with the aim
of preparing these companies for resale. Since Ilka-old
had received aid that was to be assessed in the context
of the other notified restructuring aid, the case was
registered as non-notified aid. The aid paid to Ilka-old
via Lintra Beteiligungsholding GmbH was the subject of
Commission Decision 2001/673/EC on aid to EFBE
Verwaltungs GmbH & Co. Management KG/Lintra Betei-
ligungsholding GmbH (4).

II. DETAILED DESCRIPTION OF THE AID

(7)

(8)

ILKA MAFA was set up at the end of 1997 by Ilka-old
in preparation for the second privatisation after it had
become evident that the privatisation concept under
Lintra Beteiligungsholding GmbH had failed. From
11 December 1997 onwards,
Ilka-old was named
Dipa-Industrie- und Vermögensverwaltungsgesellschaft
(Dipa). Insolvency proceedings were started against Dipa
on 1 January 2000.

A privatisation contract was concluded in 1997 with
Carrier. Carrier, however, withdrew its interest on
31 December 1998. Following this, BvS started looking
for another investor, contacting ten domestic and foreign
manufacturers of refrigeration plant and machinery.
GEA AG was the only company which was interested in
taking over ILKA MAFA.

( 1) OJ C 278, 30.9.2000, p. 9.
( 2) See footnote 1.

(3) A separate hive-off vehicle (Auffanggesellschaft).
(4) OJ L 236, 5.9.2001, p. 3.

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(9)

(10)

The privatisation agreement was concluded on 27 Sep-
tember 1999 between BvS, Dipa and GEA AG on the
takeover of ILKA MAFA. The purchase price paid to
Dipa was DEM 500 000.

ILKA MAFA is located in Döllnitz bei Halle, Saxony-
Anhalt. Its activities are the production, distribution,
assembly, installation and maintenance of refrigerating
systems (water-cooled chillers) for environmentally com-
patible, ammonia-based refrigeration. Water-cooled chil-
lers are used in the food and chemicals industries,
industrial production, the air conditioning of buildings
and in sports facilities.

(11) The investor for the second restructuring project is GEA
AG, the management holding company of the GEA
Group, which has some 150 operational companies
worldwide. The group has a total of 14 000 workers
and its turnover in 1999/2000 was EUR 2,3 billion.

(12) The restructuring plan provides mainly for cost savings
through the synergy effects of belonging to a large
group, e.g. joint purchasing. Distribution will be through
the group’s worldwide sales network. To save costs, the
administration functions will be taken over by a sister
company, Grasso RT Berlin.

(13) The company will focus in future on the core business,
which is the production and assembly of water-cooled

It will

chillers.
in particular manufacture chillers of
different sizes and performance categories to meet
individual customers’ specifications. Replacement and
modernisation investment is also provided for, and joint
R&D activities will be stepped up.

(14) The investor will employ on average 45 full-time
workers for a three-year period starting in November
1999. The activities of the company will be carried on
until at least 31 December 2004.

(15) As explained in recital 7, ILKA MAFA was set up in
December 1997 to prepare for privatisation and for
takeover by Carrier. The restructuring period was to last
from 1 December 1997 to 31 December 2001. As
explained above, Carrier withdrew its interest in late
1998. The restructuring period of the present investor
GEA AG began on 1 October 1999 and ended on
31 December 2001. The whole period since end 1997
was notified as the restructuring period for Ilka-old,
since the restructuring process had begun before the
withdrawal of Carrier, and it continued also in 1998 and
1999 before the privatisation to GEA AG.

(16) According to the forecasts in the restructuring plan, the
company will make a slight profit of DEM 14 000 in
2002 from a turnover of DEM 16,2 million. For 2003
the profit forecast was DEM 670 000 with a turnover of
DEM 17,4 million, and, for 2004, DEM 1,1 million with
a turnover of DEM 18,2 million.

(17) The restructuring plan as assessed by the Commission in its decision to initiate the procedure was

to be financed as follows:

Financing

BvS/Land

Investor/ILKA MAFA

(DEM thousand)

Financing of Dipa until liquidation – 6 450

6 450

1.12.1997-30.9.1999

Operating losses – 8 232

Investments – 333

12 800 grant

Integration-/restructuring costs Carrier – 1 842

Increase of liquidity – 2 393

Total – 19 250

19 250

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Financing

BvS/Land

Investor/ILKA MAFA

1.10.1999-31.12.2001

Social plan and related costs

2 029

1 748 grant

281 ILKA MAFA

Operating losses – 3 881

3 500 grant

381 — Shareholder’s loan

Investments and other restructuring costs – 9 800 3 700 grant

Increase of equity 2 000 Share-
holder’s loan 4 100

Working capital – 1 150

Shareholder’s loan 1 150

Purchase price 500

TOTAL: 36 610

28 198

77 %

GEA 500

8 412

23 %

(18)

(19)

(20)

In addition to the financing shown in the table, Germany
announced a contribution of DEM 2,760 million to the
labour costs. The contribution would be made by the
workforce of ILKA MAFA, who would waive 12,5 % of
their annual wages/salaries during the restructuring.

In its decision opening the procedure the Commission
noted that the share of the public financing would be
DEM 28,198 million, representing 77 % of the total
costs. The investor contribution would be DEM 8,381
million representing 23 % of the total costs. Therefore,
the Commission had doubts whether the investor contri-
bution to the restructuring could be considered signifi-
cant as provided in the Community guidelines on State
aid for rescuing and restructuring firms in difficulty (5)
(guidelines).

the Commission noted that of

the
In addition,
DEM 9,8 million allocated by the investor in the
restructuring plan for investment and reorganisation, a
total of DEM 1,1 million was to be used for setting up
sales offices in Scandinavia and Japan and for expanding
the sales network in South America. Since ILKA MAFA’s
sales operations are to be taken over by the parent
group, the Commission doubted whether the part of the
aid linked to these investments will really be granted to
ILKA MAFA, whether these investments were essential
for restoring the viability of the company and whether
the aid was thereby limited to the strictly necessary.

(21) The Commission also pointed out that as a result of the
final decision in case C-41/99 Lintra Beteiligungsholding
GmbH some additional claims against the former Ilka-
old might arise that would have to be added to the costs

( 5) OJ C 288, 9.10.1999, p. 2.

of the present restructuring plan. The exact amount of
these was not established at the time of the decision to
initiate the procedure but would be made clear in the
final decision. These additional liabilities should be taken
into account in the assessment of the proportionality of
the aid.

III. COMMENTS FROM GERMANY

(22) As regards the Commission’s doubts about the insuf-
ficient investor contribution, Germany explains that the
calculation should also take account of the fact that the
restructuring period with the present investor began on
1 October 1999, whereas the overall
restructuring
period started in December 1997. Consequently, the
total volume of funding was initially higher than the
amount provided by the new investor.

(23)

If the costs of the restructuring are assessed on the sole
basis of the period from 1 October 1999 to 31 December
2001, the contribution by the investor and ILKA MAFA
amounts to 52 %, which must be regarded as a significant
contribution to the restructuring plan.

(24) As regards the Commission’s doubts about the necessity
for the DEM 1,1 million investment earmarked for the
establishment of sales offices, Germany explains that
one of the most glaring weaknesses of most companies
from the new Länder has been, and still remains,
their inadequate distribution structure. Particularly in
globalised sectors of activity such as the refrigeration
and air-conditioning industry, a well-developed and
efficient global distribution network is one of
the
cornerstones of a company’s long-term success.

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(25) Germany stresses that through its close cooperation
with the other companies in the GEA refrigeration
division, ILKA MAFA has free access to a well-developed
distribution network and the means of expanding this
network at low cost. The amount of DEM 1,1 million
represents only a small part of the GEA refrigeration
division’s total investment in new distribution organis-
ations. Besides, ILKA MAFA will only contribute to the
establishment of those new channels if
they are of
particular interest for the marketing of its products.

(26) As regards the potential additional liabilities incurred by
the former Ilka-old in the framework of the present
procedure, Germany refers to its opinion delivered in
case C-41/99 Lintra Beteiligungsholding GmbH. The
opinion relates to Lintra’s claim against Ilka-old, amount-
ing to DEM 1 787 586. This claim was being settled
from the assets remaining after the liquidation of Dipa.

IV. ASSESSMENT OF THE AID

(27) According to Article 87(1) of the EC Treaty, any aid
granted by a Member State or through State resources in
any form whatsoever which distorts or threatens to
distort competition by favouring certain undertakings
or the production of certain goods shall, in so far as it
affects trade between Member States, be incompatible
with the common market. Pursuant to the established
case-law of the European Courts, the criterion of trade
being affected is met if the recipient firm carries out an
economic activity involving trade between Member
States.

(28) The Commission notes that the notified aid was granted
from State resources to a particular company, which
benefited from a reduction of the costs it would normally
have to bear in carrying out the notified restructuring
project. Moreover, the recipient of the aid, ILKA MAFA,
develops, produces and assembles chillers, which activi-
ties involve trade between Member States. Therefore, the
aid in question falls within the scope of Article 87(1) of
the EC Treaty.

within the meaning of Article 87(3)(c) of the Treaty
contribute to the development of certain economic
trading
activities where it does not adversely affect
conditions to an extent contrary to the common interest,
if the conditions laid down in the guidelines are met.

(30) The Commission notes that the present guidelines
entered into force on 9 October 1999. According to
point 7.5., the guidelines apply if some or all of the aid
is granted after their entry into force. Since part of the
aid to the notified restructuring is, according to the
notification, to be granted after this date, the 1999
guidelines apply to the notified restructuring.

(31) According to point 2.1. of the guidelines, typical symp-
toms of a firm in difficulty are deteriorating profitability
or increasing size of losses, diminishing turnover, declin-
ing cash flow and low net asset value. The Commission
notes that both Ilka-old and ILKA MAFA have been loss-
making since 1994. The losses when the original
notification was submitted were DEM 6,687 million and
when the present restructuring plan was submitted
DEM 1,8 million. Therefore, the company is regarded as
a firm in difficulty, and aid for its restructuring is
assessed according to the guidelines.

(32) Under the guidelines, newly created firms are not eligible
for rescue and restructuring aid, even if their initial
financial position is insecure. This is the case in particular
where a new firm emerges from the liquidation or
takeover of a previous firm. Footnote 10 of the guide-
lines states that ‘the only exceptions to this rule are cases
dealt with by the Bundesanstalt für vereinigungsbedingte
Sonderaufgaben in the context of its privatisation remit
involving
and other similar cases in the new Länder,
companies emerging from a liquidation or a take-over
of assets occurring up to 31 December 1999’. The
Commission notes that ILKA MAFA used to be a BvS-
owned company and it is situated in the new Länder. It
was set up in 1997 with a view to the future privatisation
and it took over the relevant assets of Ilka-old before the
deadline of 31 December 1999. For these reasons ILKA
MAFA is eligible for rescue and restructuring aid.

(29) The notified project concerns restructuring of the com-
pany in accordance with the restructuring plan submit-
ted by the investor. The Commission was originally
informed about the restructuring on 27 March 1998.
The Commission notes that the restructuring aid for
firms in difficulty is assessed pursuant to the guidelines.
According to these a rescue and restructuring may

(33) According to point 3.2.3 of the guidelines, restructuring
aid should be granted once only. However, footnote 25
of the guidelines states that the section does not apply
to cases of aid granted to enterprises in the former
German Democratic Republic which were notified
before 31 December 2000. Since the aid to ILKA MAFA
was notified before the deadline laid down in the
guidelines, the company can be granted restructuring
aid for the second time.

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(34) According to the guidelines,

the aid should be in
proportion to the restructuring costs and benefits.
Section 3.2.2(d) stipulates that the aid needs to be
limited to the strict minimum necessary to enable
restructuring to be undertaken and must be related to
the benefits anticipated from the Community’s point
of view. Aid beneficiaries should make a significant
contribution to the restructuring plan from their own
resources. No aid should go to finance new investment
that is not essential for restoring the firm’s viability.

(35)

In its decision opening the procedure the Commission
doubted whether the investor contribution of 23 %
could be considered significant in the meaning of the
Guidelines. In addition, it doubted whether the aid linked
with the foreseen DEM 1,1 million investment in
distribution network was essential
for restoring the
company’s viability.

(36) Germany communicated changes to the original restruc-
turing plan by letter dated 20 July 2001. The changes
relate to the three following points: the extension of the
restructuring period, the increased investor contribution
and the deletion of the sales network investments from
the restructuring plan.

(37) The period for implementing the GEA restructuring plan
now extends from 1999 to 2003. Germany explained
that in 1999 the financial result was better than foreseen
mainly due to booking proceeds in the financial accounts
which would be subject to costs the following year. The
year 2000 consists only of nine months, since the
financial year needed to be synchronised with that of
the other companies of the GEA-group. The target result
and turnover were not achieved, since there were
virtually no orders at the beginning of the year. In
2001 the turnover target was nearly achieved, but the
operating result was worse than predicted. The reason
for this was a one-year delay in development of semi-
hermetic compressors. The proposed savings in material
costs could therefore not be achieved. The financial
situation is not expected to improve until 2002/2003
and the operating result until 2004, instead of 2002.

(38) When asked by the Commission to explain the reasons
for the delays and why these were not foreseen in the
original restructuring plan, Germany explained in its
letter of 14 November 2001 that the delays occurred for
technical reasons. They were not foreseen in the original
plan, since at the time of taking over ILKA MAFA the
investor, GEA was not fully aware of all the technical
details of the latter’s product range. After the takeover a
working group consisting of employees of ILKA MAFA
and the GEA group was set up to analyse certain
products manufactured by both of them. It was con-
cluded that the compressors used by ILKA MAFA were

technically outdated and needed to be replaced in order
to have a competitive product. In particular, it was also
concluded that the material costs of the old product
were much too high.

(39) According to Germany, in view of this unforeseen need
for adaptation and reconstruction of the compressors, it
was decided to replace the two production lines by the
end of 2001. Due, however, to technical problems,
replacement was delayed by almost a year and will only
be completed by end September 2002. Without these
delays,
the planned cost savings would have been
achieved earlier, since the new products have much
lower material costs. This means in practice that the
company had to bear the higher production costs one
year longer than planned, which is reflected in the
financial results of the company.

(40) As regards the increased investor contribution, Germany
explains that the investor is making available to ILKA
MAFA a DEM 3,2 million credit line (6) for covering the
potential
liability and other guarantee claims of the
clients. Since the investments in PC systems and net-
works are DEM 0,5 million higher than forecast, the
investor is also increasing its own contribution to the
investments by that amount. The increased investor
contribution therefore totals DEM 3,7 million.

(41) The Commission notes that the foreseen DM 1,1 million
investment in sales networks has been deleted from the
investment plan. Instead the amount will be used as
follows:

— test stands for chillers were DEM 0,7 million more

expensive than forecast,

— office

renovation
DEM 150 000 more expensive,

and

construction was

— production equipment was DEM 150 000 more

expensive,

— storage and logistics costs: DEM 100 000.

(42) Also in the revised restructuring plan, the financing for
the period before the sale to the GEA group, from
1 December 1997 to 30 September 1999, remains
unchanged. The total cost for the period, DEM 12,8 mil-
lion, is borne by the State (BvS and Saxony-Anhalt). The
restructuring aid for the GEA group from 1 October
1999 onwards remains unchanged at DEM 8,948 mil-
lion. The total amount of public financing and, hence,
aid is therefore DEM 28,198 million. This is the same as
in the original plan. No increase in aid is associated
therefore with the revised restructuring plan.

(6) ‘Avalrahmen’.

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(43) As explained in recital 40, according to the new plan the investor’s contribution has been
increased by DEM 3,7 million. This is the result of a higher direct investment contribution of
DEM 500 000 and a DEM 3,2 million credit line for covering potential guarantee claims from
clients. The financing of the revised plan breaks down as follows:

Financing

BvS/Land

Investor/ILKA MAFA/(workforce)

(DEM thousand)

Financing of DIPA until liquidation – 6 450

6 450

1.12.1997 to 30.9.1999
Operating losses – 8 232

Investments – 333

12 800 grant

Integration/restructuring costs, Carrier – 1 842

Increased liquidity – 2 393

Total –19 250

19 250

1.10.1999 to 31.12.2004
Social plan and related costs – 2 029

1 748 grant

281 ILKA MAFA

Operating losses – 3 881

3 500 grant

381 — Shareholder’s loan

Investments and other restructuring costs – 10 300 3 700 grant

Increase of equity 2 000 Share-
holder’s loan 4 600

Credit line for guarantee claims – 3 200

3 200 GEA

Working capital – 1 150

Shareholder’s loan 1 150

Purchase price 500

GEA 500

Workforce’s contribution to labour costs 2 760

Workforce 2 760

TOTAL: 43 070

28 198

12 112

65 %

28 %

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(44) As regards the workforce’s restructuring contribution of
DEM 2,760 million, the Commission notes that this
amount has been included in the restructuring costs,
because it is an actual contribution to those costs. This
should not be seen as a contribution from the investor,
however, since it will be funded neither from the
investor’s financial resources nor from ILKA MAFA’s (7).

(45) As regards its doubts expressed in the opening of the
procedure concerning the amount of
the investor’s
contribution to the restructuring, the Commission notes
that this was increased by a total of DM 3,7 million in
the revised restructuring plan and now amounts to 28 %.
In accordance with the Commission’s previous practice
in the eastern German restructuring aid cases (8), this can
be considered as a significant contribution within the
meaning of the guidelines.

(46) As regards the doubts concerning the investment in
the sales network,
the Commission notes that this
investment has been replaced by direct investments in
the production facilities of ILKA MAFA. For this reason
the doubts about whether ILKA MAFA was the real and/
or the only beneficiary of the aid relating to those
investments have been allayed.

(47) The Commission notes, however, that the restructuring
period has been extended by two years. Germany
explains that this is due to the unforeseen need to
replace some additional production facilities and the
resultant technical difficulties.

(48) An essential element of the restructuring plan communi-
cated by Germany in 1999 was the replacement and
modernisation of the production facilities and develop-
ment of new products.
In its decision opening the
procedure, the Commission stated that it had no doubts
as regards the ability of the restructuring plan to restore
the long term viability of the company.

(49) The decision to replace an additional production facility
after an in-depth examination of ILKA MAFA’s pro-
duction range is in line with the original restructuring
plan and does not involve changes of substance or the
introduction of new strategies or measures not already
provided for in the original plan. Had it been possible to
carry out the additional replacement of a production
facility as planned without the delay, the timetable for

achieving an operating profit would have been kept,
according to the information provided. The delays
caused by the technical difficulties affect the operating
result accordingly and postpone the date for achieving
profitability. The restructuring plan, however, is carried
out as planned. The Commission therefore considers
that, despite the extension of the restructuring period on
account of the technical difficulties, the ability of the
plan to restore viability to the company is unaffected.

(50) According to the guidelines, the restructuring plan must
restore the long-term viability of the company within a
reasonable timeframe. The delay defers for two years the
moment when the company will achieve profitability.
As the original restructuring period for the present
investor was only two years (1999 to 2001), the deadline
for restoring profitability is still, despite the two-year
delay, within a reasonable timeframe, as stipulated in the
guidelines.

(51)

(52)

In accordance with the ‘one time, last time’ condition
laid down in point 3.2.3 of the guidelines, restructuring
aid can be granted only once. Further restructuring aid
can only be allowed in exceptional and unforeseeable
circumstances for which the company is not responsible.
restructuring period,
The extension of
however, does not lead in the present case to any increase
of aid. On the contrary, the investor contribution has
been increased, and to a degree that is significant within
the meaning of the guidelines.

the original

So that the Commission can monitor the implemen-
tation of the revised restructuring plan, Germany is
requested to provide an annual report on the progress
of the restructuring from 2001 to 2004. The report is
to be submitted by the end of March of the following
year and should contain all relevant information to
enable the Commission to check the implementation of
the authorised restructuring programme, the payment
of aid to the company and its financial position. Further
changes to the restructuring plan will be examined in
accordance with point 3.2.4 of the guidelines.

( 7) See Commission Decision 2002/186/EC, Case C-66/00-ZEMAG,

(OJ L 62, 5.3.2002, p. 44).

( 8) See inter alia Commission Decision 1999/339/EC, Case C-24/97
Chemienlagenbau Stassfurt AG (OJ L 130, 26.5.1999, p. 20)
(25 %) and the Decisions in Cases NN 49/98 Hydraulik Seehausen
(26 %) and NN 100/97 KAB Kraftwerks (25 %).

(53)

In its decision opening the procedure the Commission
reserved its position on the possible additional claims
against Ilka-old resulting from Case C-41/99 Lintra
Beteiligungsholding GmbH.

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(54) The Commission took its final decision 2001/673/EC in
case C-41/99 on 28 March 2001 (9). By letter dated
17 September 2001, Germany informed the Com-
mission that the aid of DEM 1 787 586 granted to the
former ILKA MAFA Kältetechnik GmbH, which had
been declared unlawful by the decision, had been
recovered with interest, giving a total of DEM 2 235 114.
Evidence of payment dated 6 September 2001 has been
submitted to the Commission. The unlawful aid was
paid back by Dipa Industrie und Vermögensverwaltung
GmbH (10) in liquidation.

V. CONCLUSION

(55) Germany has unlawfully granted aid amounting to
EUR 14,417 million to ILKA MAFA Kältemaschinenbau
GmbH in breach of Article 88(3) of the Treaty. However,
since this aid complies with the 1999 Community
guidelines on State aid for rescuing and restructuring
firms in difficulty, it is compatible with Article 87(3)(c)
of the Treaty,

HAS ADOPTED THIS DECISION:

Article 1

The State aid which Germany has implemented for ILKA MAFA
Kältemaschinenbau GmbH, amounting to EUR 14 417 000
(DEM 28 198 000) is compatible with the common market
within the meaning of Article 87(3)(c) of the EC Treaty.

Article 2

Germany shall provide an annual report to the Commission
on the progress of the restructuring for the period 2001 to
2004. The report shall be provided by the end of March of the
following year. It shall contain all the relevant information
that the Commission needs to monitor the implementation of
the authorised restructuring plan, the receipt of the aid by the
company and its financial position.

Article 3

This Decision is addressed to the Federal Republic of Germany.

Done at Brussels, 3 April 2002.

For the Commission

Mario MONTI

Member of the Commission

( 9) See footnote 4.
( 10) Formerly ILKA MAFA Kältemaschinenebau GmbH.