2003/281/EC: Commission Decision of 30 October 2002 on State aid implemented by Germany for the Leuna 2000 refinery (notified under document number C(2002) 4038) (Text with EEA relevance)
Date: 2002-10-30
Institutions: European Commission
Subjects: Germany, State aid, control of State aid, location of industry, oil refining

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(Acts whose publication is not obligatory)

COMMISSION

COMMISSION DECISION

of 30 October 2002

on State aid implemented by Germany for the Leuna 2000 refinery

(notified under document number C(2002) 4038)

(Only the German text is authentic)

(Text with EEA relevance)

(2003/281/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

(3)

Having regard to the Treaty establishing the European
Community, 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) and having regard to
their comments,

Whereas:

(1)

(2)

I. PROCEDURE

By letter dated 19 August 1997, registered under the
number SG(97) D/7156,
the Commission informed
Germany that it had decided on 23 July 1997 to initiate
the procedure laid down in Article 88(2) of the EC
Treaty in respect of aid granted to the Leuna 2000
refinery in Saxony-Anhalt.

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

Journal

of

(1) OJ C 394, 30.12.1997, p. 14.
(2) See footnote 1.

(4)

(5)

(6)

(7)

The Commission received four sets of comments from
interested parties. It forwarded them on 6 March 1998
to Germany, which was given the opportunity to react.
A response was received from Germany by letters dated
8 April 1998 and 15 May 1998.

On 17 February 1999, the Commission decided to send
an injunction requiring Germany to provide certain
information.

The Commission sent letters to the German authorities
on 19 August 1997, 4 February 1998, 6 March 1998, 7
April 1998, 26 May 1998, 29 May 1998, 23 June
1998, 15 July 1998, 29 July 1998, 16 September 1998,
17 September 1998, 28 January 1999, 17 March 1999,
22 March 1999, 29 April 1999, 15 May 1999, 29 June
1999, 31 October 2000 and 27 November 2000.

The Commission sent to letters to Elf on 31 July 1998,
16 September 1998, 23 September 1998, 4 January
1999, 15 January 1999, 4 February 1999, 24 February
1999, 13 October 1999, 21 January 2002 and 11 April
2002.

received

Commission

correspondence

from
The
Germany by letters dated 5 September 1997, 18
September 1997, 6 November 1997, 11 February 1998,
9 March 1998, 8 April 1998, 24 April 1998, 15 May
1998, 19 August 1998, 4 November 1998, 20
December 1998, 15 December 1998, 16 January 1999,
27 January 1999, 8 March 1999, 9 March 1999, 16
March 1999, 16 April 1999, 27 April 1999, 10 May
1999, 31 May 1999, 2 June 1999, 10 June 1999, 26
June 1999, 2 July 1999, 28 September 1999, 6
November 2001, 22 February 2002 and 17 July 2002.

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(8)

its

Correspondence from Elf or
representatives was
received by letters dated 31 July 1998, 24 August 1998,
12 November 1998, 1 December 1998, 11 December
1998, 5 January 1999, 26 January 1999, 27 January
1999, 3 June 1999, 7 June 1999, 18 October 2000, 26
November 2001, 12 December 2001, 18 December
2001, 30 January 2002, 22 April 2002 and 28 May
2002.

construction of the new refinery, corresponding to a
gross aid intensity of 32,56 %. The total amount of
investment aid approved amounted to EUR 769.7
million (DEM 1 505,5 million) on a total
investment
volume of EUR 2 403,1 million (DEM 4 700 million).
investment project
The aid intensity of
amounted to 32 % gross,
i.e. below the maximum
permitted ceiling of 35 % gross for large firms in the
new L(cid:228)nder.

the overall

(9)

In addition, several meetings took place between the
Commission and the parties involved.

II. DESCRIPTION OF THE MEASURE

(10)

(11)

(12)

The Mitteldeutsche
Erd(cid:246)l-Raffinerie GmbH (Mider)
refinery in Leuna/Spergau currently has a capacity of 10
million tonnes of crude oil a year. The crude oil comes
directly through a pipeline from Russia and/or from
Rostock
to the
company, the refinery employs around 2 550 persons.
The main products are petrol, diesel, heating oil,
kerosene and methanol.

from Danzig. According

and/or

The origins of the present State aid case go back to the
Commission decisions of 30 June 1993 (aid cases N
109/93 and NN 11/93) (3) and of 25 October 1994 (aid
N 543/94). The decisions related to a package of aid to
be paid by the Treuhandanstalt, the former east German
privatisation
the
Bundesanstalt f(cid:252)r vereinigungsbedingte Sonderaufgaben (BvS).
The aid was to be paid to Elf (4)/Mider in the context of
the privatisation and restructuring of the Zeitz/Leuna
refineries and the petrol station network Minol. In 1992
Elf set up Mider as a wholly owned subsidiary to build
the new Leuna 2000 refinery.

predecessor

institution

and

of

site.

June 1993,

In its decision of

The privatisation and the construction of the new plant
were part of the efforts to restructure the old Leuna
chemical
the
Commission decided, inter alia, not to raise objections to
EUR 749,3 million (DEM 1 465,5 million) in investment
In
aid for
November 1994, the Commission approved EUR 20,5
million (DEM 40 million) in further aid for additional
investment amounting to EUR 102,3 million (DEM 200
million).

the construction of

the new refinery.

(14)

(15)

(16)

(17)

EPC (5)

The most important part of the overall project was the
construction of the refinery installations. For this, Mider
concluded a building contract on which a fixed price
was agreed for turnkey delivery, a so-called (cid:145)lump-sum
consortium
contract(cid:146), with
turnkey
Thyssen-Lurgi-Technip joint venture (TLT) to carry out
the construction. The costs agreed for building the plant
by the TLT consortium were budgeted at EUR 1 692,4
million (DEM 3 310 million). The other costs were the
costs
the
accompanying infrastructure and the costs for putting
the plant into operation.

preparation

project,

the

the

the

for

of

in
In 1997, the Commission received from Germany,
the context of its monitoring obligation, a copy of a
report on a 1996 study carried out by the consultants
Solomon Associates Ltd for the BvS. The report was
intended to determine the price for the acquisition of
In a Memorandum of
in the new refinery.
shares
Understanding of 30 April 1994,
the BvS granted
Elf/Mider a put-option on the Mider shares that would
allow the BvS to enter the project at the request of
Elf/Mider (6).

The Solomon study initially concluded that the costs
indicated by Elf, on which the Commission’s decisions
were based, were well above the normal building costs
for a comparable plant. Solomon calculated the costs on
the basis of a statistical method for a theoretical plant.

The Solomon report puts the normal costs for an EPC
contract at EUR 1 207 million (DEM 2 400 million).
The difference between the
calculated by
Solomon and the costs calculated on the basis of the
EPC contract amounted to EUR 340 million (DEM 665
million), including adjustments made by Solomon (7).

figure

(13) Most of the aid measures were granted on the basis of
various regional aid programmes authorised by the
Commission. The original investment was estimated to
for the
be EUR 2 301 million (DEM 4 500 million)

(3) OJ C 214, 7.8.1993.
(4) Elf is currently part of Total Fina Elf SA.

(5) Engineering, planning and construction.
(6) The Memorandum of Understanding and the

corresponding
put-option were the subject of
the Commission Decision of 2
February 2000 on the so-called (cid:145)Settlement Agreement(cid:146) (N 94/98)
between the BvS, the Land of Saxony-Anhalt and Elf/Mider. It is
described in section VII of this Decision.

(7) In its decision to initiate proceedings, the Commission specified an
amount of EUR 460,2 million (DEM 900 million), but it did not
take into account adjustments made by Solomon totalling DEM
235 million which reduced the gap.

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III. GROUNDS FOR INITIATING THE PROCEDURE
PROVIDED FOR IN ARTICLE 88(2)

(18) When the Commission initiated the procedure provided
for in Article 88(2) of the EC Treaty, it expressed doubts
as to the implementation of its original decisions and as
to the information on which its decisions approving the
aid were based. Consequently,
the Commission also
expressed doubts as to the compatibility of the aid. In
the Commission regarded the information
particular,
provided by Germany as insufficient
to remove its
doubts regarding the actual costs of the construction of
Leuna 2000 and the
actually invested by
funds
Elf/Mider. (8).

(19)

The Commission found that the information received
then did not contain any documentation that
until
would justify the divergence between the investment
expenditure estimated by Elf and the price determined
by Solomon.

(20) An inflated presentation of

the costs of

the eligible
investment on which the aid measures were based could
have resulted in an amount of aid that was higher than
the amount strictly needed for carrying out the project.
This would be in conflict with the principle of
the
necessity of aid.

(21) Moreover, the level of aid could exceed the maximum
aid intensity for investment aid allowed for the region.
If misuse of aid were to be established, the Commission
would be obliged under Article 88(2) of the EC Treaty
to decide that the Member State abolish or alter the aid
within a period of
time to be determined by the
Commission.

IV. COMMENTS FROM INTERESTED PARTIES

(22)

The Commission received four sets of comments from
interested parties, including Elf/Mider, in response to the
initiation of the formal investigation procedure.

(23) A competitor in the petrochemical sector drew attention
to the negative impact of the Leuna investment project
on competition in the petroleum industry. A response
came also from the United Kingdom, which expressed
its concern that the maximum regional aid ceiling might
be exceeded. It also referred to the detrimental impact
of the aid on competition in the petroleum sector and

(8) In its decision to initiate proceedings,

the Commission also
requested information on the put-option contract, which was to be
examined at a subsequent stage.

(24)

(25)

(26)

on British competitors, particularly in view of European
refinery capacities. A letter was also received from a
consortium of two Russian companies interested in the
acquisition of a holding in Mider and contesting the
statement in the initiation of proceedings that they had
withdrawn from the planned acquisition of shares. They
claimed that the consortium would be willing to pay a
purchase price equalling the amount to be paid by the
BvS under the put-option for the Mider shares.

a

to

the

lead

stated that

aspects. As

review should

the Commission’s powers

In its comments, Elf/Mider focussed on the procedural
the initiation proceedings as well as on
aspects of
procedure,
substantive
concerns
Elf/Mider
in
reviewing existing aid schemes are restricted to issues
related to compliance with the original decisions only.
The
complete
not
re-examination of the existing aid measures and their
compatibility with the common market. Moreover,
according to Elf/Mider, the initiation of the investigation
procedure was not justified in this case as it was based
principally on the Solomon report. That report had a
different purpose, namely the valuation of the Mider
shares possibly to be purchased by the BvS. Solomon’s
approach consisted of
assessment of
a
whether construction costs were justified or reasonable
on the basis of what another oil company would be
willing to invest. The assessment was thus unrelated to
and lower than the actual costs borne by Mider. A final
the
comment
procedural
text of
Commission’s decision to initiate
investigation
procedure, arguing that the Commission’s notice on the
decision to initiate the Article 88(2) procedure was
unclear and at times contradictory.

related to the
the

subjective

the

that

from Elf/Mider aim to
The substantive comments
demonstrate
information on which the
Commission based its original decisions on State aid for
the Leuna 2000 refinery was correct and that
the
investments had been made as envisaged. In addition, it
was argued that the regional aid programmes had been
administered properly, while the amount of aid and the
aid intensity approved by the Commission had not been
exceeded.

the

conditions of

also stated that

Elf/Mider
the
put-option on the Mider shares contained in the 1994
Memorandum of Understanding could not be considered
part of the initiation of proceedings. The put-option was
already part of the (cid:145)settlement agreement(cid:146) between Elf
and the BvS of 30 December 1997. The Settlement
Agreement had become the subject of separate State aid
proceedings (N 94/98). Therefore, questions concerning
the Memorandum of Understanding and the put-option
had no relevance to the present case.

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V. COMMENTS FROM GERMANY

used in the previous estimate of the EPC contract value
made by Solomon, but now tailored to the specific
plant.

(27)

Information was provided on the actual construction
costs, and explanations were given to justify additional
costs. Germany
fixed-price
also argued that
lump-sum contract was justified by the tight schedule
within which the refinery had to be constructed and the
unforeseeable factors that had to be covered.

the

VI. EXPERT’S STUDY AND INFORMATION INJUNCTION

(28)

investigation,

the Commission
its
In the course of
its own to
commissioned an independent study of
re-examine
the refinery.
the construction costs of
Parpinelli Tecnon from Milan, a member of the Tecnon
Consulting Group,
(Tecnon) had been selected by the
Commission in July 1998 to undertake a study. The
external consultants had to examine whether the aid
granted by Germany for the construction of the new
petrochemical refinery at Leuna had been used in line
with the Commission’s approval decisions. Tecnon’s
to focus on two main issues. Firstly,
study was
establishing the value of the refinery and of the building
contract between Elf/Mider and the TLT consortium.
Secondly, auditing and verifying the actual payments for
the overall project and comparing these with the initial
plan on which the Commission’s decisions were based.

(29)

Tecnon submitted a preliminary report in January 1999.
The study confirmed that the eligible overall investment
project costs were approximately EUR 2 403,1 million
(DEM 4 700 million) (9), as noted in the original
Commission decisions. This amount comprised EUR
1 730,7 million (DEM 3 385 million) to be paid out to
the consortium TLT, commissioned by Elf/Mider
to
construct the refinery on a turnkey EPC contract basis.

(30)

Tecnon had full access to the accounting and financial
data of Elf/Mider relating to the construction of
the
Leuna 2000 refinery. However, Tecnon did not have
access to the accounts of TLT and other data not
directly involved in the investigation proceedings.

bids

(31) As Tecnon consequently did not have information on
or
from
actual
vendor
subcontractors,
it determined the market price of the
EPC contract and the refinery investment on the basis of
data on other refinery projects. Tecnon declared that
this method was basically the same methodology as that

invoices

data

on

(9) The actual overall building costs amounted to EUR 2 607,6 million

(DEM 5 100 million), including the interest costs.

concluded

(32) According to the estimate based on Tecnon’s file data,
the amounts paid by Mider to TLT under the EPC
contract and other orders exceeded by DEM 700 million
the market value of the goods and services provided;
this was in line with the estimate made by Solomon. As
regards the payments made by Elf/Mider, however, the
study
accounting
documents indicated that the declared costs were paid
in conformity with the amounts specified. It was also
established that
received the invoiced
payments and that the investments were effected in line
with the amended 1994 TLT contract. Tecnon also
concluded that the amendments and changes that were
made during the construction period fell within the
norm that could be expected for a project of this nature
and size.

the suppliers

available

that

the

(33) Germany and Elf/Mider contested the results of

the report was based,

the
study and the methodology applied. Major objections
were that
like the Solomon
report (10), on assumptions of the market value and not
the refinery which was actually
on the costs of
constructed. Moreover,
take into
account specific circumstances related to the Leuna
2000 project. Comments were made on the estimation
of the market value, the accuracy of the analysis and the
fact that a number of site-specific issues that justified
additional costs had not been taken into account. These
included the stricter environmental standards Elf/Mider
had to apply, the conditions of the old Leuna site and
other unexpected costs.

the study did not

(34)

The Commission continued to have serious doubts as to
the credibility and completeness of
the information
provided by Germany. The results of the expert’s report
suggested that the price paid by Elf/Mider to TLT for the
construction of the refinery had been inflated, and thus
the aid was not
limited to the minimum required.
Moreover, the Commission was convinced that crucial
documentation had not yet been made available.
In
order to assess indisputably whether an abuse of aid had
to TLT’s
the Commission needed access
occurred,
financial and market-related data, notably the vendor
bids and data on actual invoices from subcontractors.

(35)

The Commission therefore
requested Germany by
Decision of 17 February 1999 to submit the vendor
bids received by TLT at the time the EPC contract was

(10) In November 1998, Solomon issued a second revision of

the
report commissioned by the BvS.
it revised its
estimate upwards, and the difference between Solomon and TLT
was now EUR 181,5 million (DEM 355 million) instead of the
previous EUR 340,1 million (DEM 665 million).

In this study,

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showing

requested

prepared and used by TLT in formulating the contract
provide
also
price. Germany was
documents
to
subcontractors by TLT for specified work done and the
corresponding invoices. Germany was further required
to provide detailed cost statistics and financial reports of
TLT.

actual

prices

paid

the

to

(36)

(37)

(38)

TLT expressed its willingness to provide the requested
information. Tecnon carried out an additional study to
review and analyse the supplementary information. The
consultants considered the documentation supplied to
be complete, with all the information requested in the
injunction having been made
available. The new
information from TLT allowed Tecnon to submit a final
version of its report in August 1999.

costs were

In its final report, Tecnon stated that the difference of
in cost
EUR 357,9 million (DEM 700 million)
calculations had been explained in a plausible way and
seemed to be justified by the specific features of the
Leuna site. Additional costs of DEM 400 million arising
from increased material and construction necessities
were verified mainly on the basis of audited financial
data (11). These higher
explained by
expensive infrastructure development as a result of
many factors including meeting German regulations,
notably environmental requirements. These costs were
effectively incurred. They relate to transactions with
third parties (cid:150)the subcontractors- as a result of bids in a
free and competitive market. Higher engineering costs
of DEM 100 million were explained by a higher
man-hour rate in comparison with Tecnon’s file data.
However, Tecnon had no reason to doubt TLT’s rates
because of
the TLT
consortium’s structure. The division of revenue to the
three consortium partners was formulated in such a way
that Technip and Lurgi earned revenue from the sale of
engineering services, whilst Thyssen’s share was mainly
based on a percentage
allocation of net profit.
Therefore,
it was in Thyssen’s interest to monitor the
actual engineering costs. Additional engineering costs of
DEM 300 million relate to overrun costs. On the basis
of its analysis, Tecnon considered TLT’s explanation to
be conceptually valid. These overrun costs were caused
by several factors and included underestimation of the
the
influence of
complexity of
instrument systems, the change in the
Mider team and numerous bankruptcies of suppliers.

the new pressure code for piping,

competitive nature of

the

Tecnon stated that
conclude

there was sufficient evidence to
actual

the differences between the

that

(11) It was established that

independent auditors had verified the
financial and cost accounting data. Their reports and statements
were made available. For instance, the Commission had access to
statements on the actual cost value which has been certified by
KPMG.

reported results and Tecnon’s estimate were likely to be
covered by the – 20 % accuracy margin of its analysis
and by additional costs which were not foreseen by TLT
in drawing up its budget. These costs were difficult to
establish without direct knowledge of the negotiations
between the contractors and the local, regional and
national authorities during the construction phase.
Tecnon was able to confirm that
the higher costs
verified by it were actually paid by TLT. Tecnon also
confirmed that TLT’s reported profit on the project was
not excessive if compared to the risks that TLT incurred.

VII. COMMISSION DECISIONS RELATING TO THE CASE

(39)

context of

to approve

investigation,

extension of

aid already awarded to Elf/Mider

this
two other
In the
Commission decisions
relating to the Leuna 2000
investment project should be mentioned. The first case
the Commission’s Decision of 1 October
concerns
1997 (12) not
the
the
Investment Premium Law (C 28/96). This Law served as
the legal basis for the granting of an EUR 184,1 million
(DEM 360 million) investment premium covering 8 % of
the investment costs of the refinery. The decision made
the
and
incompatible. The investors have in the meantime
reimbursed the aid that had been paid out already.
Elf/Mider requested the Court of First Instance to annul
this Decision (Case T-9/98). On 22 November 2001, the
Court annulled the Commission’s Decision in so far as it
the applicant (13). The
concerned the
this
Commission will deal with the consequences of
Court judgment separately, but the judgment will not
lead to additional aid being paid to Elf/Mider (see in that
regard paragraphs 31 and 37 of the judgment in Case
T-9/98).

situation of

illegal

(40) As concerns

the other

related case N 94/98,

the
Commission approved by decision of 2 February 2000 a
settlement agreement concluded between the BvS, the
Land of Saxony-Anhalt and Elf/Mider on 30 December
1997. In it, Germany recognised an EUR 184,1 million
(DEM 360 million) claim for damages by Elf/Mider. The
contribution of the BvS was intended to compensate, in
particular, a claim that had emerged from the breach of
the Memorandum of Understanding concluded between
both parties on 30 April 1994 on the put-option.

(12) OJ L 73, 12.3.1998, p. 38.
(13) Mitteldeutsche Erd(cid:246)l-Raffinerie v Commission [2001] ECR II-3367.

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Moreover, the settlement agreement expressly provided
that Elf/Mider was to repay to the BvS any sum paid to
it as 8 % investment premium in excess of the amount
of EUR 184,1 million (DEM 360 million).

(41)

The Commission found that
the sum of EUR 122,7
million (DEM 240 million) to be paid by the BvS did
not constitute aid. The remaining amount of EUR 61,4
million (DEM 120 million) to be paid by Saxony-Anhalt
as compensation for the non-receipt of the investment
the Investment Premium Law was
premium under
considered to be aid.
In its decision the Commission
declared, however, that this aid was compatible with the
Community rules on State aid. Germany undertook that
amount would not be paid directly to the
this
beneficiary, but would be put
in a so-called escrow
account (blocked account) and would remain blocked
until a final decision in the present case was taken.

this information, the aid intensity of the project would
be well below the ceiling of 35 % allowed for the region
of Saxony-Anhalt. On the basis of this calculation, the
aid ceiling would only be exceeded if the findings of the
Commission’s investigation indicated that the refinery
construction costs were inflated by more than EUR
554,4 million (DEM 1 084,3 million) (15).

(45)

This figure of EUR 554,4 million is well above the
possible overstated amount of EUR 357,9 million (DEM
700 million) specified in Tecnon’s preliminary report. It
is also well beyond the cost difference specified in the
Solomon study, which was the basis for the present
investigation. The findings in Tecnon’s final report on
the basis of actual company data did not show any
overstatement of costs.

VIII. ASSESSMENT OF THE AID

(42) According to the information provided by Germany,
the overall eligible investment costs for the refinery
amounted to EUR 2 403,1 million (DEM 4 700 million).
The Commission’s experts have checked this
figure
and have found no evidence that
the eligible costs
were improperly calculated. The amount was also
confirmed by a report drawn up by the authorities of
the Land of Saxony-Anhalt (Verwendungsnachweispr(cid:252)fung).
The amount of aid in support of
the investment
originally amounted to EUR 769,7 million (DEM
1 505,5 million). The aid intensity of the project was
32 % and consequently below the permissible aid ceiling
of 35 % of eligible investment costs. The project did not
receive any resources from the EU Structural Funds.

(43)

The aid for the refinery construction so far amounts to
EUR 585,7 million (DEM 1 145,5 million). This figure
corresponds with the original amount approved by the
Commission minus the DEM 360 million deducted after
the negative decision on the Investment Premium Law.
If the EUR 61,4 million (DEM 120 million) aid blocked
on the escrow account following the decision on the
settlement agreement were to be added,
the project
would receive an aid amount of EUR 647 million (DEM
1 265,5 million).

(46) Moreover,

the

have

costs
it has been established that
presented were justified, actually paid by Elf/Mider and
fully accounted for. Court and parliamentary inquiries in
Germany into the construction costs of the Leuna 2000
refinery
any
misrepresentation of costs or any misuse of State aid.
the German parliamentary
Nor did the report of
(Untersuchungsausschuss
investigation
Parteispenden) published in July 2002 establish any
irregularities in connection with the construction of the
Leuna refinery.

committee

similarly

revealed

not

(47) As far as the Solomon report is concerned, the objective
was to establish a market value for the shares with a
view to a possible sale to the BvS. This valuation was
not intended to represent the actual construction costs
of the refinery. It was based on an estimate and not on
actual company data. Although the consultants of
Tecnon had information from Elf/Mider on the specific
features of the Leuna refinery, the methodology applied
in their preliminary study was also based on estimates
in the absence of the market-related data used by the
TLT consortium to determine their bid. The provision of
the requested data from TLT explained the differences
between their initial analysis and the actual construction
costs based on the EPC contract. Tecnon concluded that
the difference in cost calculations was explained in a
plausible way and within the accuracy margin of their
study.

(44)

for

the project
Since the eligible investment costs
amount to EUR 2 403,1 million (DEM 4 700 million)
and the aid to EUR 647 million (DEM 1 265,5 million),
the gross aid intensity would amount to 26,9 % (14).
This would mean that, according to the information
available to the Commission and after verification of

(14) Elf/Mider stated that this percentage has been reduced to between
22 % and 24,3 % due to changes in the financial and physical
design of the project.

(48) As regards the third party comments following the
initiation of proceedings, the Commission notes that no
evidence has been found that aid was granted beyond

(15) This calculation is based on the difference between 35 % of DEM
4 700 million (DEM 1 645 million) and the amount actually
granted (DEM 1 265,5 million). The difference between these two
amounts (DEM 379,5 million) is the aid that could theoretically
still be paid out in compliance with the aid intensity of 35 %. It
corresponds to an eligible investment base of DEM 1 084,3
million.

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the scope originally approved. As demonstrated above,
the aid intensity remains well within the maximum
percentage allowed. The conditions of the put-option of
the BvS were dealt with separately in the decision taken
in 2000 on the settlement agreement.

IX. CONCLUSION

(49)

The information received and the analysis that has been
carried out by the Commission in the course of this
investigation procedure have not shown any evidence of
any misuse of aid. No overstatement of eligible costs or
granting of aid beyond the scope of
the original
decisions authorising aid for the Leuna 2000 investment
project has been demonstrated. Consequently,
the
Commission’s doubts as to the compatibility of the aid
granted to Elf/Mider with Article 87 of the EC Treaty
and Article 61 of the EEA Agreement have been allayed
and the proceedings can be terminated.

the Commission will not object

(50) As already stated in the decision on the settlement
agreement,
to the
amount of EUR 61,4 million (DEM 120 million)
currently blocked in an escrow account (16) being paid
to the beneficiary. In accordance with the provisions of
this agreement, any amount exceeding the sum of EUR
184,1 million (DEM 360 million) is to be repaid to the
BvS.

(51) However, the Commission’s decision to terminate the
investigation proceedings is subject to the condition that

the Commission may reopen the investigation if new
facts come to light which contradict the conclusions
reached in this examination,

HAS ADOPTED THIS DECISION:

Article 1

The State aid which Germany has granted in the context of the
construction of the Leuna 2000 refinery and which was the
subject of the Commission Decisions N 109/93, NN 11/93 and
N 543/94 is compatible with the common market within the
meaning of Article 87 of the Treaty. The full implementation
of aid measures amounting to EUR 647 million (DEM 1 265,5
million) is accordingly authorised. This amount comprises EUR
61,4 million (DEM 120 million)
the
Commission’s Decision on the settlement agreement (N 94/98).

approved under

Article 2

This Decision is addressed to the Federal Republic of Germany.

Done at Brussels, 30 October 2002.

For the Commission

Mario MONTI

Member of the Commission

(16) Plus the corresponding interest.