2006/904/EC: Commission Decision of 7 June 2006 on State Aid No C 8/2005 (ex N 451/2004) which Germany is planning to implement for Nordbrandenburger UmesterungsWerke (notified under document number C(2006) 2088)   (Text with EEA relevance)
Date: 2006-06-07
Institutions: European Commission
Subjects: Germany, State aid, control of State aid, diesel fuel, investment aid, substitute fuel

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COMMISSION DECISION

of 7 June 2006

on State Aid No C 8/2005 (ex N 451/2004) which Germany is planning to implement for
Nordbrandenburger UmesterungsWerke

(notified under document number C(2006) 2088)

(Only the German version is authentic)

(Text with EEA relevance)

(2006/904/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Commu-
nity, 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 provision(s) cited above (1),

(7)

Whereas:

(1)

(2)

(3)

(4)

1.

PROCEDURE

By letter dated 11 October 2004, registered as received on
12 October 2004, Germany informed the Commission of
its intention to implement a regional aid measure for NUW
aid was
Nordbrandenburger UmesterungsWerke. The
registered as notified aid number N 451/2004. In response
to a Commisison request
information sent on
6 November 2004, Germany submitted further informa-
tion on 16 December 2004.

for

By letter dated 16 February 2005 the Commission
informed Germany that
it had decided to initiate the
procedure laid down in Article 88(2) of the Treaty in
respect of the aid.

The Commission's decision to initiate the procedure was
published in the Official Journal of the European Union (2).
Interested parties were invited to submit their comments on
the aid measure.

By letter dated 22 March 2005, registered as received on
23 March 2005, Germany replied to the initiation of
proceedings
additional
and submitted comprehensive
information to the Commission.

(5)

The Commission received no comments from interested
parties.

(1) OJ C 27, 27.1.2001, p. 44.
(2) OJ C 86, 8.4.2005, p. 2.

(6) As a result of

its own investigations the Commission
established that the information provided by Germany was
not complete and by letter dated 8 November 2005 it sent
further questions
to Germany. Germany replied on
13 January 2006 and submitted further information.

2.

DESCRIPTION OF THE AID

2.1

The recipient and the project

The recipient of
the aid is NUW Nordbrandenburger
UmesterungsWerke GmbH & Co. KG (‘NUW’), located in
Schwedt, in the Land of Brandenburg, Germany, an assisted
area pursuant to Article 87(3)(a) of the Treaty. NUW was
established on 4 May 2004. Before the implementation of
the planned investment it will not carry out any operational
activities. Consequently, in October 2004 NUW did not yet
have any full-time or part-time employees.

(8) NUW intends

in Schwedt a
to build and operate
manufacturing plant for biodiesel with an expected annual
capacity of 130 000 tonnes and eligible investment costs of
EUR 41,84 million. It will mainly deliver to PCK Raffinerie
GmbH Schwedt (‘PCK’), whose equipment is currently being
prepared for the further processing of biofuels.

2.2

The financial measures

(9)

The Land of Brandenburg wants to grant NUW state aid,
under schemes approved by the Commission, of 50 % of
the eligible cost with a total aid amount of up to
EUR 20,92 million.

(10) The aid will be provided in the form of a direct investment
grant of EUR 14,204 million and in the form of an
investment premium of EUR 6,716 million on the basis of
the joint Federal Government/Länder scheme for improving
regional
language:
‘Gemeinschaftsaufgabe Verbesserung der regionalen Wirtschafts-
struktur’) (3) (hereinafter referred to as the GA scheme) and
under the aid scheme entitled ‘Investment premium for

(in original

structures

economic

(3)

‘Gesetz über die Gemeinschaftsaufgabe (GA)
'Verbesserung der
regionalen Wirtschaftsstruktur' vom 6. Oktober 1969 in Verbindung
mit den einschlägigen Bestimmungen von Teil II des 31. Rahmen-
plans zur GA’, the latest prolongation approved by Commission
decision under the number N 642/02 on 1.10.2003, OJ C 284,
27.11.2003, p. 2.

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L 353/61

investment at operational level in the year 2004’ (in original
language: ‘Investitionszulage für betriebliche Investitionen im Jahr
2004’) (4). Germany will ensure that the 50 % ceiling for aid
intensity will not be exceeded.

2.3

Reasons for initiating the formal investigation

procedure

(11) Since the aid is based on approved schemes the Commis-
sion limits its assessment to the question whether the
recipient qualifies as an SME and is thus eligible for an
additional SME bonus of 15 % as included in the envisaged
aid amount.

(12) According to Article 2 of

the Annex to Commission
Recommendation 2003/361/EC of 6 May 2003 concerning
the definition of micro, small and medium-sized enterprises
(SME Recommendation) (5), small and medium-sized enter-
prises are defined as enterprises which have fewer than 250
employees and have an annual turnover not exceeding
EUR 50 million and/or an annual balance sheet total not
exceeding EUR 43 million.

the
operational objective is exclusively to take over
management and to assume the liabilities of NUW. All
other complementary enterprises (‘Verwaltung GmbH’)
exclusively take over
relevant
enterprises and do not carry out further operations.

the liabilities of

their

(18) Whereas Daniela Sauter has a 74 % stake in NUW, her
holdings in NBE Nordbrandenburger BioEnergie GmbH &
Co. KG, MBE Mitteldeutsche BioEnergie GmbH & Co. KG
and SBE Swiss BioEnergy AG do not exceed 50 %.
According to Germany there are no other enterprises
linked to NUW.

(19) With regard to the partner enterprises Germany states that
Daniela Sauter has holdings of 50 % in NBE, 38 % in MBE
and 20 % in SBE. Consequently, only the holdings in NBE
and MBE would be relevant for the assessment of the
recipient's size.

(13) The concept of undertaking does not require that the
recipient be limited to one distinct legal entity;
it may
encompass an economic group of companies which is
than an individual SME. Enterprises may be
larger
they are linked
considered to be linked enterprises if
through a natural person and operate in the same relevant
market or in adjacent markets.

(20) With regard to possible joint behaviour by a group of
natural persons, Germany informs the Commission that
Daniela Sauter and Georg Pollert as the main partners of
NUW appear jointly only with regard to NUW, but not with
regard to other undertakings. Their joint interests exclu-
sively concern NUW; apart from the deed of partnership,
no other agreements exist.

in particular through members of

(14) The link between NUW and other enterprises through
natural persons,
the
Sauter family, may result in joint activities in the same or
adjacent markets. Linked enterprises are taken into account
jointly when staff headcounts and financial amounts are
calculated in establishing the SME status of an enterprise.

(15) With regard to the relations between the above mentioned
enterprises, the Commission doubted whether the recipient
of the investment aid, NUW, really needs to benefit from
the advantages accruing to SMEs from the different rules or
measures in their favour and that NUW would be eligible
for the notified SME bonus. The Commission also doubted
that the recipient complies with the definition of an SME
under the SME Recommendation.

3.

COMMENTS FROM INTERESTED PART IES

(16) The Commission did not receive any comments from

interested parties.

4.

COMMENTS FROM GERMANY

Criterion of independence

(17) Germany explains
financially not

that NUW Verwaltung GmbH is
Its

recipient NUW.

involved in the

(4)

‘Investitionszulage für betriebliche Investitionen im Jahr 2004’,
approved under the number N 336/2003 on 10.12.2003, based on
‘Investitionszulagengesetz 1999 in der Fassung der Bekanntmachung
vom 11. Oktober 2002 unter Berücksichtigung des Entwurfs des
Steueränderungsgesetzes 2003’; OJ C 67, 17.3.2004, p. 12.

(5) OJ L 124, 20.5.2003, p. 36.

(21) Germany underlines that regarding the involvement of
brothers, parents and the sister-in-law no uniform structure
of holdings exists that may involve equal interests. Apart
from the fact that they are relatives there are no legal or
economic relations between these persons. Apart from the
deed of partnership, no other agreements exist.

Relevant markets

(22) According to Germany, NUW and MUW Mitteldeutsche
UmesterungsWerke GmbH & Co. KG operate on the same
market
are different. The
enterprises have a relationship via Mr Pollert, but this is
low-key and not significant.

although their

customers

(23) Whereas NUW will produce biodiesel, NBE and MBE are
active in the bioethanol market. Although the customers of
all three companies are the large oil companies, the input of
raw materials and the production processes are substan-
tially different.

The undertakings’ management, financial and employment
criteria

(24) Since end of 2004 Mr Heidenreich is no longer the
manager of NBE Verwaltung GmbH. According to
Germany, all the other enterprises involved are managed

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by different persons and no links between the management
of the enterprises exist.

8 November 2005, Germany provided additional informa-
tion on 13 January 2006.

(25) Based on the assumption that NUW, MBE and NBE are
partner enterprises and that no linked enterprises exist,
Germany calculates the financial and employment figures.
With reference to the SME definition, it concludes that this
group remains below the critical thresholds for all the SME
criteria.

The general contractor SBE Swiss BioEnergy AG

(26) NUW engaged SBE, whose business purpose is

the
construction and operation of biodiesel plants and the
trade in biofuels in Europe, to carry out the construction of
the biodiesel plant. Although SBE will finance a part of the
investments, Germany states that
there are no further
dependencies between the two undertakings. In order to
ensure that NUW does not become dependent on SBE, only
NUW can determine the date of the repayment of the loan.

(27) Further, SBE will pre-finance the direct investment grant
from 2004. Germany stresses that the contract between
SBE and NUW was drafted in such a way that SBE could not
influence NUW's management decisions.

Sauter Verpachtung GmbH

(28) According to Germany, the sale of fuel is of only minor
importance and accounts for only 1 % of the turnover of
the enterprise. Sauter Verpachtung GmbH has no signifi-
cant business in the processing of or trade in biodiesel or
bioethanol.

(29) However, this enterprise was the main contractor in the

construction of the bioethanol production plant of NBE.

(30) Sauter Verpachtung has neither direct legal nor economic

relations with NUW.

Conclusions by Germany

(31) Since relations between NBE and MBE only exist via the
person of Mrs Daniela Sauter and since there are no further
relevant relations to other enterprises, Germany concludes
that NUW qualifies as an SME. The participants in NUW are
not a jointly acting group of natural persons. According to
the Land of Brandenburg, family links are insufficient to
conclude that there is a joint interest within the meaning of
the SME definition.

5.

ADDITIONAL INFORMATION PROVIDED BY

GERMANY

Shareholdings and ownership

(33)

in 16 enterprises. Daniele Sauter holds

In addition to various
real estate and wind energy
undertakings (Germany did not provide further details)
the members of the Sauter family have majority share-
the
holdings
majority (74 %) of the shares in NUW, for which the SME
bonus was notified; she is the sister of Bernd and Claus
Sauter. Alois and Albertina Sauter are the parents of
Daniele, Bernd and Claus Sauter. Marion Sauter is married
to Claus Sauter. Finally, Georg Pollert, who has no family
link to the Sauter family, holds 24 % of the shares in NUW.

(34) With the exception of NUW Nordbrandenburger Umester-
ungswerke Verwaltung GmbH (6) (Daniela Sauter: 50 %), the
Sauter family controls all the Sauter family enterprises via
majority shareholdings:

Alois

Sauter

(100 %),

SBE Swiss BioEnergy AG (100 %), Sauter Verpachtung
GmbH
Landesprodukten-
Großhandlung GmbH & Co. KG (100 %), Sauter GmbH
(100 %), Compos Entsorgung GmbH (100 %), MUW
Mitteldeutsche UmesterungsWerke GmbH & Co. KG
(66 %), MUW Mitteldeutsche UmesterungsWerke Verwal-
tungs GmbH (66 %), AIIEN GmbH (100 %), Autokontor
Bayern GmbH (66 %), Autokontor Vertriebs GmbH (60 %),
MBE Mitteldeutsche BioEnergie GmbH & Co. KG (100 %),
MBE Mitteldeutsche BioEnergie Verwaltung GmbH (100 %),
NBE Nordbrandenburger BioEnergie GmbH & Co. KG
(100 %), NBE Nordbrandenburger BioEnergie Verwaltung
GmbH (100 %) and NUW (74 %).

(35) The business purposes of NUW Nordbrandenburger
Umesterungswerke Verwaltung GmbH, MUW Mittel-
deutsche UmesterungsWerke Verwaltungs GmbH, Mittel-
deutsche
BioEnergie Verwaltung GmbH and NBE
Nordbrandenburger BioEnergie Verwaltung GmbH are to
manage and represent other enterprises.

Business relations

(36) According to Germany the term ‘Sauter Group’ is publicly
used only for Alois Sauter Landesproduktengroßhandlung,
Sauter Verpachtung and Compos Entsorgung, which closely
cooperate in the area of transport and waste treatment. The
transport fleet of Sauter Verpachtung and Alois Sauter
Landesproduktengroßhandlung carries advertising for bio-
diesel. Germany cannot explain why credit institutions as
NordLB use the term ‘group’ for some enterprises of the
Sauter family.

(32) As part of its own investigations, the Commission found
evidence that other undertakings, about which Germany
had not
informed the Commission, were owned by
members of the Sauter family. Replying to the Commis-
to Germany on
sion's questions sent

in this context

(37) The enterprises have numerous business relations, which

according to Germany cannot be ‘fully listed’:

(6) NUW Nordbrandenburger Umesterungswerke Verwaltung GmbH is

NUW's associate company.

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L 353/63

(a) As a general contractor SBE Swiss BioEnergy AG will
install the biodiesel plant for the proposed recipient
NUW. Further, it will partially finance the investment
and pre-finance the investment grant. Sauter Verpach-
tung GmbH has been the general contractor for
setting up the bioethanol plants of MBE GmbH and
NBE GmbH and the biodiesel plant of MUW.
Furthermore,
it constructed several wind energy
stations for MUW and MBE. Its gas stations are used
by MBE and Autokontor Bayern.

(b)

For waste water management, Compos Entsorgung
Gmbh uses mainly the transport fleet of Alois Sauter
Landesproduktengrosshandlung GmbH and Sauter
Verpachtung GmbH. Sauter Verpachtung shares an
office building with Compos Ensorgung GmbH and
Autokontor Bayern GmbH.

(c) Customers of MUW are Alois Sauter Landesproduk-
tengroßhandlung, Autokontor Bayern, Sauter Ver-
pachtung and MBE. SBE delivers crude oil and
refined products to MUW for further processing into
biodiesel.

(d) Alois

Sauter

Landesproduktengroßhandlung

lets
buildings and ground to Autokontor Bayern and
repairs and maintains the transport fleet of Sauter
Verpachtung, Autokontor Bayern, MBE and MUW. It
operates a gas
station for MUW, MBE, Sauter
Verpachtung and Autokontor Bayern.

(e)

For some time MBE and Sauter Verpachtung were
sharing an office building. MBE carries out transport
services
for Sauter Verpachtung and Autokontor
Bayern.

(f)

SBE cooperates with MUW, NUW, MBE NBE and
Autokontor Bayern.

Relations concerning management and staffing

(38) Formerly, the managing director of NUW, Mr Niesmann,
was the operational manager of MUW. Until 2004 the
managing director of MBE, Mr Klotz, had power of
procuration at Sauter Verpachtung.

(39) The recipient's majority owner, Mrs Daniela Sauter, is the

managing director of NBE.

(40) Mr Johne has power of procuration at SBE and worked for
MUW until December 2004. Mr Heidenreich was managing
director at NBE and took over the same function at NUW.

(41)

In specific cases staff may have changed posts between the
different enterprises of the Sauter family.

Suppliers and customers of the enterprises of the Sauter family

(42) The enterprises Bunge Deutschland GmbH and Cargill
supply both MUW and NUW with vegetable oil. SBE is the
common customer of NUW, MUW, MBE and NBE.

6.

ASSESSMENT OF SME STATUS

Criteria to qualify for the SME bonus

(43) According to the Annex to the Commission Recommenda-
tion of 6 May 2003, an SME is defined as an enterprise
which employs fewer than 250 persons and which has an
annual turnover not exceeding EUR 50 million, and/or an
annual balance sheet total not exceeding EUR 43 million.

(44) Article 87 (1) of the EC Treaty refers to the concept of
undertakings to define the recipients of aid. As the Court of
Justice of the European Communities has confirmed, the
concept of undertaking is not limited to one distinct legal
entity, but may encompass a group of companies (7).

(45) According to the case law the Commission is entitled to
determine, first, whether an undertaking is part of a group
which should be regarded as a simple economic entity and
only then ascertain whether that group satisfies the test of
the SME Recommendation. Where legally distinct natural
or legal persons constitute a simple economic entity, they
should be treated as a single undertaking for the purposes
of Community competition law. Further, it is necessary to
eliminate legal arrangements in which SMEs form an
economic group which is much stronger than a normal
SME and to ensure that the definition of SMEs is not
circumvented for purely formal reasons. The Court of First
Instance of the European Communities expressly noted that
the Commission has a broad discretion in determining
whether companies which form part of a group should be
regarded as an economic unit (8).

(46) The SME Recommendation concerning the definition of
small and medium-sized enterprises adopts this approach.
In Article 3(3) of the Annex, it stipulates that enterprises
which have a dominant influence over one another through
a natural person or a group of natural persons acting jointly
are to be considered linked enterprises if they engage in
their activity or in part of their activity in the same relevant
market or
in adjacent markets. Adjacent markets are
considered to be markets for a product or services situated
directly upstream or downstream of the relevant market.

(47) The judgment of the Court of Justice in Case C-91/01 (9)
further clarifies how the Commission may decide when
‘If an
assessing the compatibility of an SME bonus :

(7)

(8)

(9)

the CFI of 14.10.2004, Case T-137/02 Pollmeier

the ECJ of 14.11.1984, Case 323/82 Intermills v

Judgement of
Commission [1984] ECR 3808.
Judgement of
Malchow v Commission [2005] ECR II-3541.
Judgement of the European Court of Justice of 29.4.2004, Case C-
91/01 Italian Republic v Commission [2004] ECR I-4355, para-
graph 54.

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enterprise concerned does not in reality suffer from the
handicaps typical of an SME, the Commission is entitled to
refuse such increased aid. Approving increased aid for
enterprises which, although meeting the formal criteria
defining an SME, do not suffer from the handicaps typical
of an SME would be contrary to Article 87 EC, since such
an increase in aid is likely to produce more severe
distortions of competition and thus adversely affect trading
conditions to an extent contrary to the common interest
within the meaning of Article 87(3)(c).’

(48)

the recipient company,

In order to determine the necessity of the increased aid
intensity for
the Commission
considers that it is necessary to examine various factors
such as the shareholding structure, the identity of
the
managing directors, the degree of economic integration and
any other links of the companies involved. By taking into
account the above-mentioned principles, the Commission
determines whether NUW falls within the scope of the
definition of SMEs and whether it could qualify for the
increase in the aid intensity.

Relations between the enterprises of the Sauter family

(49) The ownership structure is a primary criterion in analysing
the controlling powers in enterprises. It allows proof to be
established on links between individual enterprises and
conclusions to be reached on economic entities.

(50) With the exception of NUW Nordbrandenburger Umester-
ungswerke Verwaltung GmbH (no turnover, no staff, balance
in which Daniela Sauter has a
sheet EUR 32 000),
family controls 15
shareholding of 50 %,
enterprises via majority shareholdings (see paragraph 34
and the Annex).

the Sauter

(51) Regarding links between natural persons who control
individual enterprises, family relationships appear to be
particular close as only six persons are involved.

(52) Daniela Sauter holds the majority (74 %) of the shares in
NUW, for which the SME bonus was notified; she is the
sister of Bernd and Claus Sauter. Alois and Albertina Sauter
are the parents of Daniela, Bernd and Claus Sauter. Marion
Sauter is married to Claus Sauter. It follows from this that
Daniela, Bernd, Claus, Alois and Albertina belong to the
traditional ‘core family’ and that Marion Sauter is a sister-in-
law. Both the quality and the intensity of family relation-
ships limited to only six natural persons appear particularly
strong.

(53) Business relationships such as links between the manage-
ment, overlapping relations
to suppliers and clients,
common use of logistics (e.g. means of transport, buildings
and offices) are considered as further check-points in this
case indicating a link between enterprises. These indicators
may serve to double-check whether a link via natural
persons not only informally but also formally translates

into links between the enterprises’ business and specific
operations.

(54) According to Germany,

the enterprises have so many
business relationships that they could not be fully listed.
First of
all, SBE Swiss BioEnergy AG and Sauter
Verpachtung serve as general contractors for setting up
bioethanol and biodiesel plants operated by entities held by
the family. The cooperation between enterprises controlled
by the Sauter family particularly in the area of transport,
management, staffing and customers demonstrates that the
enterprises’ activities are coordinated and that
joint
behaviour is actively sought.

(55) As provided by Germany, three simple examples out of
numerous joint activities and instances of cooperation
illustrate the link between the different enterprises of the
Sauter family. The transport fleet of both Sauter Verpach-
tung GmbH and Alois
Landesprodukten-
großhandlung GmbH & Co. KG carries advertising for
biodiesel. Furthermore, Alois Sauter Landesprodukten-
großhandlung GmbH & Co. KG owns a helicopter which
the members of the family jointly use for their various
business activities. The same enterprise maintains and
repairs the transport fleet of Sauter Verpachtung GmbH,
Autokontor Bayern GmbH, MBE and MUW.

Sauter

(56)

In addition to these business relations, the close relation-
ship between the members of the Sauter family are also
evident in numerous real estate and wind energy under-
takings.

(57) The Commission considers

that,

from an economic
perspective too, the group of enterprises has to be regarded
as one entity. Particularly as a result of the link via natural
persons — the Sauter family — but also because of their
business relationships and organisational links, the Sauter
family can easily coordinate not only their daily operational
activities, but also their strategic development as a group.
The links between the companies have not been established
recently, but appear based on a common history and a
planned joint development.

(58) At the Internet site http://www.sauter-logistik.de/Sauter_-
Gruppe.htm the enterprises Landesprodukten-Grosshan-
dlung GmbH, Sauter GmbH, Compos Ensorgung GmbH,
MUW GmbH, AIIEN GmbH, Autokontor Bayern GmbH
and Biodiesel Production S.A present themselves as the
Sauter Group, again indicating joint economic behaviour.

(59) Furthermore, banks

such as NordLB refer

to several
enterprises controlled by the Sauter family as the ‘Sauter
Group’. The appearance of the Sauter enterprises as a group
seems to be supported by the bank's analysis. Germany
could not explain why the banks refer to the undertakings
in this way.

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(60) The specific business relations between NUW and SBE
Swiss BioEnergy AG underline the profound integration of
NUW in the network of enterprises owned by the Sauter
family. As mentioned above, SBE Swiss BioEnergy AG will
as a general contractor install the biodiesel plant for the
proposed recipient NUW. Further, it will partially finance
the investment and pre-finance the investment grant.

(61) From the information submitted by Germany (see sections 4
and 5 above), the Commission concludes that undertakings,
in which members of the Sauter family individually or
jointly have a majority shareholding, belong to a simple
economic entity. It appears evident that the members of the
family are a group of natural persons acting jointly within
the meaning of Article 3(3) of the Annex to the SME
Recommendation and act jointly in their business activities.

(62) The different enterprises are largely active in the same or
adjacent markets. In this context it should be emphasised
that NUW, MUW, MBE and NBE all supply their products to
SBE Swiss BioEnergy AG and that three companies of the
group (NUW NBE and MBE) sell their production to the
large oil companies. On the other hand, NUW and MUW
both purchase their vegetable oil, which is their primary
pre-product, from Bunge Deutschland GmbH and Cargill
GmbH. It also appears important that SBE Swiss BioEnergy
AG installs and operates chemical plants for the production
of biofuels (such production plants are operated by many
enterprises owned by the Sauter family) and that it also
trades in biofuels. Apparently Sauter Verpachtung GmbH,
Alois Sauter Landesproduktenhandlung and Autokontor
Bayern are engaged in transport services, which all the
enterprises of the group require to a large extent and may
use when necessary. Finally, both biodiesel and bioethanol
serve as fuels for vehicles. With regard to the analysis of
adjacent markets it is irrelevant that biodiesel is directly
used by trucks, while bioethanol is mixed with mineral oil
and used by cars. Both products are distributed via similar
or indeed the same trading and marketing channels and are
ultimately used for transportation services by vehicles.
Therefore, the staff numbers and financial data of
the
enterprises have to be aggregated in order to decide on
NUW's status as an SME.

The reference year

(63) According to the Commission Recommendation,

the
reference year to be considered in order to determine
whether the recipient of aid is an SME is that of the last
approved accounting period. If an enterprise exceeds either
the employee thresholds or financial ceilings, it loses the
status of an SME only if the phenomenon is repeated over
two consecutive financial years.
In the case of newly
established enterprises whose accounts have not yet been
approved, the data to apply are to be derived from a bona
fide estimate made in the course of the financial year.

(64) Quite apart from the years which are taken into account
the Sauter group

(2002, 2003, 2004 and 2005),

consistently exceeded the thresholds for annual turnover
and the annual balance sheet total. In 2004 and 2005 it
exceeded all the thresholds, including the one concerning
staff.

The Sauter Group's staff and financial data

(65) According to the information provided by Germany, the
staff and financial data of the enterprises in which the
Sauter family has a majority holding (excluding NUW
Verwaltung GmbH) for the years 2002, 2003, 2004 and
2005 were as follows:

2002

2003

2004

2005

122

164

332

412

79 819 124

107 082 928

296 332 725

421 855 238

135 966 984

327 657 218

331 071 069

404 652 910

Staff

Annual
turnover in
EUR

Annual
balance
sheet total
in EUR

Details of the employment and financial data for each
enterprise are set out in the Annex.

(66) According to the Annex to the Commission Recommenda-
tion, an SME is defined as an enterprise which employs
fewer than 250 persons and which has an annual turnover
not exceeding EUR 50 million, and/or an annual balance
sheet total not exceeding EUR 43 million. Whereas the
Sauter group exceeded the thresholds of annual turnover
and annual balance sheet total
it
actually exceeded all three criteria in 2004 and 2005.
Consequently, NUW as a member of this group cannot be
considered to be an SME and is therefore not eligible for the
SME bonus.

in 2002 and 2003,

(67) Taking into account the structure of the Sauter group, the
links between the shareholders of the different companies
and the economic links between the different entities of the
group, it further appears that neither the group as a whole
nor NUW as a member of the group suffers from the typical
handicaps of an SME:
in view of the turnover and the
annual balance sheet total of the group, it must be assumed
that NUW has full access to the financial markets and can
finance the envisaged investment on terms similar to those
of any large enterprise.

(68) At least NUW, NBE and MBE have large oil companies as
customers. Therefore the members of the Sauter group are
able to supply beyond the regional or German market.
Particularly through SBE Swiss BioEnergy AG they also have
access
the different
members of the group are active on different levels of the
production and marketing chain, the Sauter group will be

to the necessary technology. As

L 353/66

EN

Official Journal of the European Union

13.12.2006

able to act on the market as an integrated group and not as
a typical SME. The Commission concludes that NUW and
the Sauter group do not form an SME within the meaning
of the definition of the Recommendation and that therefore
they do not suffer from the typical handicaps of an SME.
Consequently, they are not eligible for the SME bonus.

HAS ADOPTED THIS DECISION:

Article 1

The aid which Germany is planning to implement for NUW
Nordbrandenburger UmesterungsWerke GmbH & Co. KG in the
form of an SME bonus is incompatible with the common market.
The aid may accordingly not be implemented.

Article 2

7.

CONCLUSION

This Decision is addressed to the Federal Republic of Germany.

(69)

In the light of all
to the Commission's
facts brought
attention, the Commission concludes that the state aid
which Germany intends to grant to NUW in the form of the
SME bonus should be deemed incompatible with the
common market,

Done at Brussels, 7 June 2006.

For the Commission
Neelie KROES
Member of the Commission

ANNEX

Enterprises of the Sauter family according to information provided by Germany

.

1
3
1
2
2
0
0
6

.

Bernd Sauter:

Claus Sauter:

33 % Bernd Sauter:

33 % Mario Biele:

33 % Claus Sauter:

33 % Karl-Heinz Rei-

pert:

1 %

1 %

Shareholdings

Bernd Sauter:

12 % Bernd Sauter:

Claus Sauter:

12 % Claus Sauter:

12 %

12 %

Dr. Georg Pollert

34 % Dr. Georg Pol-

34 % Daniela Sauter :

74 % Daniela Sauter:

50 % Daniela Sauter:

38 % Daniela Sauter:

38 % Daniela Sauter:

50 % Daniela Sauter:

50 %

lert:

Dr. Georg Pol-
lert:

24 % Dr. Georg Pol-

50 % Marion Sauter:

38 % Marion Sauter:

38 % Marion Sauter:

50 % Marion Sauter:

50 %

lert:

Managing Directors

Dr. Georg Pollert

Dr. Georg Pollert

Theodor Niesmann

Theodor Niesmann

Dr. Bernd Klotz

Dr. Bernd Klotz

Daniela Sauter and Klaus-Dieter
Bettin

Daniela Sauter and Klaus-Dieter
Bettin

MUW Mitteldeutsche Umester-
ungsWerke GmbH & Co. KG

MUW Mitteldeutsche Umester-
ungsWerke Verwaltungs GmbH

NUW Nordbrandenburger
UmesterungsWerke GmbH &
Co. KG

NUW Nordbrandenburger
UmesterungsWerke Verwaltung
GmbH

MBE Mitteldeutsche BioEnergie
Verwaltung GmbH

MBE Mitteldeutsche BioEnergie
GmbH & Co. KG

NBE Nordbrandenburger BioE-
nergie Verwaltung GmbH

NBE Nordbrandenburger BioE-
nergie GmbH & Co. KG

represented by
MUW Mitteldeutsche Umester-
ungsWerke GmbH

represented by
NUW Nordbrandenburger
Umesterungswerke Verwaltung
GmbH

represented by
MBE Mitteldeutsche BioEnergie
Verwaltung GmbH

represented by
Nordbrandenburger BioEnergie
Verwaltung GmbH

Product: biodiesel

Product: biodiesel

Product: biodiesel

Product: biodiesel

Product: bioethanol

Product: bioethanol

Product: bioethanol

Product: bioethanol

2004

EUR

2004

EUR

2004

EUR

2004

EUR

2004

EUR

2004

EUR

2004

EUR

2004

EUR

Turnover:

110 358 000 Turnover:

0 Turnover:

0 Turnover:

0 Turnover:

0 Turnover:

4 104 087 Turnover:

0 Turnover:

12 531 681

Balance sheet:

73 788 863 Balance sheet:

48 084 Balance sheet:

25 085 041 Balance sheet:

28 000 Balance sheet:

48 084 Balance sheet:

60 894 944 Balance sheet:

36 147 Balance sheet:

67 919 722

Employees:

44 Employees:

0 Employees:

2 Employees:

0 Employees:

0 Employees:

76 Employees:

0 Employees:

65

2005

EUR

2005

EUR

2005

EUR

2005

EUR

2005

EUR

2005

EUR

2005

EUR

2005

EUR

(estimated)

(estimated)

(estimated)

(estimated)

(estimated)

(estimated)

(estimated)

(estimated)

Turnover:

120 000 000 Turnover:

0 Turnover:

10 200 000 Turnover:

0 Turnover:

0 Turnover:

26 135 000 Turnover:

0 Turnover:

35 300 000

Balance sheet:

60 000 000 Balance sheet:

50 000 Balance sheet:

48 000 000 Balance sheet:

32 000 Balance sheet:

50 000 Balance sheet:

60 900 000 Balance sheet:

40.000 Balance sheet:

70 000 000

Employees:

44 Employees:

0 Employees:

45 Employees:

0 Employees:

95 Employees:

95 Employees:

0 Employees:

70

E
N

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Bernd Sauter:

Claus Sauter:

40 % Albertina Sauter:

25 % Bernd Sauter:

50 % Bernd Sauter:

50 %

Shareholdings

40 % Alois Sauter:

25 % Claus Sauter:

50 % Claus Sauter:

50 % Claus Sauter:

100 % Bernd. Sauter:

50 % Bernd Sauter:

33,33 % Bernd Sauter:

Daniela Sauter:

20 % Bernd Sauter:

25 % Sauter GmbH:

0 %

Claus Sauter:

50 % Claus Sauter:

33,33 % Claus Sauter:

Claus Sauter:

25 %

Roland Koch:

33,33 % Roland Koch:

40 %

20 %

40 %

Managing Directors

Claus Sauter

Bernd Sauter and Alois Sauter

Bernd Sauter

Bernd Sauter

Alois Sauter

Bernd Sauter

Bernd Sauter

Roland Koch

SBE Swiss BioEnergie AG

Sauter Verpachtung GmbH

Alois Sauter Landesprodukten-
Großhandlung GmbH & Co. KG

trade in bioenergy

renting and l, easing, trade,
processing and marketing of
renewables

Represented by Sauter GmbH
trade in agricultural products

Sauter GmbH

Compos Entsorgungs GmbH

ALLEN GmbH

Autokontor Bayern GmbH

Autokontor Vertriebs GmbH

trade in agricultural products

disposal in agricultural products

energy generation plants

trade in vehicles, transport

trade in vehicles, transport

2004

EUR

2004

EUR

2004

EUR

2004

EUR

2004

EUR

2004

EUR

2004

EUR

2004

EUR

Turnover:

41 923 832 Turnover:

99 610 485 Turnover:

5 078 988 Turnover:

0 Turnover:

1 120 786 Turnover:

0 Turnover:

18 203 975 Turnover:

3 400 000

Balance sheet:

33 947 576 Balance sheet:

54 695 450 Balance sheet:

5 938 678 Balance sheet:

41 790 Balance sheet:

1 787 142 Balance sheet:

1 442 219 Balance sheet:

4 006 114 Balance sheet:

1 400 000

Employees:

4 Employees:

61 Employees:

37 Employees:

0 Employees:

4 Employees:

0 Employees:

32 Employees:

2005

EUR

2005

EUR

2005

EUR

2005

EUR

2005

EUR

2005

EUR

2005

EUR

2005

EUR

(estimated)

(estimated)

(estimated)

(estimated)

(estimated)

(estimated)

(estimated)

(estimated)

Turnover:

172 220 238 Turnover:

25 000 000 Turnover:

4 800 000 Turnover:

0 Turnover:

1 200 000 Turnover:

0 Turnover:

27 000 000 Turnover:

7

0

Balance sheet:

95 677 910 Balance sheet:

55 000 000 Balance sheet:

5 900 000 Balance sheet:

43 000 Balance sheet:

1 800 000 Balance sheet:

1 100 000 Balance sheet:

6 000 000 Balance sheet:

100 000

Employees:

7 Employees:

50 Employees:

37 Employees:

0 Employees:

4 Employees:

0 Employees:

60 Employees:

0

L

3
5
3
/
6
8

E
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O

f
f
i
c
i
a
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J
o
u
r
n
a
l

o
f

t
h
e

E
u
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o
p
e
a
n

U
n
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i

.

1
3
1
2
2
0
0
6

.