CELEX: C2000/273/12
Language: en
Date: 2000-09-23 00:00:00
Title: Case C-280/00: Reference for a preliminary ruling from the Bundesverwaltungsgericht by order of that court of 6 April 2000 in the case of Altmark Trans GmbH and Regierungspräsidium Magdeburg v Nahverkehrsgesellschaft Altmark GmbH, interested party: Oberbundesanwalt beim Bundesverwaltungsgericht

C 273/8              EN                    Official Journal of the European Communities                                       23.9.2000
    The loan by the Land of Brandenburg of DEM 70,3                   —    Breach of the principle of legal certainty: the decision is
    million cannot be treated differently from corresponding               not definite enough, in that it claims aid back from every
    payments by the Treuhandanstalt. Provision of DEM 35                   undertaking ‘to which the assets of ... (SMI), ... (SiMI) or ...
    million finance by the Land of Brandenburg was promised                (MD&D) have been or will be transferred in a form
    as part of the privatisation agreement. That measure in                intended to evade the consequences of the decision’.
    the framework of privatisation is justified under the
    Treuhand scheme because the promise was a component
    and a condition of the privatisation agreement and it
    cannot matter which State source payments which were              Breach of the principle of proportionality.
    permitted under the Treuhand scheme were actually
    made from. After taking over the shares from the
    Treuhandanstalt, the Land of Brandenburg gave a further
    DEM 35,3 million as a loan. That constituted a contract
    management measure on the part of the Land of Branden-
    burg, which was permitted in accordance with the
    Treuhand scheme, and in any event capable of being
    approved. The Commission did not, however, examine
    the compatibility of the loan against that background.
Recovery of the aid                                                   Reference for a preliminary ruling from the Bundesver-
                                                                      waltungsgericht by order of that court of 6 April 2000 in
                                                                      the case of Altmark Trans GmbH and Regierungspräsidi-
—   Lack of competence of the Commission and exceeding its            um Magdeburg v Nahverkehrsgesellschaft Altmark
    powers: the order to recover the aid from third parties           GmbH, interested party: Oberbundesanwalt beim Bun-
    who did not receive the aid and had no opportunity to                                  desverwaltungsgericht
    take part in the procedure constitutes exceeding of its
    powers by the Commission. The Commission has no
    jurisdiction to issue such an order (lack of competence of                                  (Case C-280/00)
    the Commission, second paragraph of Article 230 EC).
    Under Article 88 EC the Member State has exclusive
    competence to recover aid, and the Commission does not                                      (2000/C 273/12)
    have jurisdiction under Article 5(2) EC.
                                                                      Reference has been made to the Court of Justice of the
    The Commission furthermore by the contested decision              European Communities by an order of the Bundesverwaltungs-
    intervenes impermissibly in the legal order of the Member         gericht (Federal Administrative Court) of 6 April 2000, which
    State, since the instruction to make recovery from                was received at the Court Registry on 14 July 2000, for a
    third parties disapplies the provisions of the judicially         preliminary ruling in the case of Altmark Trans GmbH and
    supervised insolvency procedure.                                  Regierungspräsidium Magdeburg v Nahverkehrsgesellschaft
                                                                      Altmark GmbH, interested party: Oberbundesanwalt beim
                                                                      Bundesverwaltungsgericht, on the following question:
    The decision is also unlawful because the Commission
    does not state what specific conduct or what specific
    measures could constitute circumvention of the claim
    for recovery and restricts itself instead to groundless           Do Articles 73 EC and 87 EC, read in conjunction with
    suppositions, allegations and fears. The Commission also          Regulation (EEC) No 1191/69, (1) as amended by Regulation
    misunderstands the nature of the German insolvency                (EEC) No 1893/91, (2) preclude the application of a national
    procedure, which on the basis of judicial control does not        provision which permits licences to operate regular local
    allow unlawful actions to take place without sanctions in         public transport services to be awarded in respect of services
    national law. In the present case the assumption that the         completely dependent on public grants without regard being
    insolvency administrator carried out the movements of             had to Sections II, III and IV of the abovementioned regulation?
    assets alleged by the Commission (and thereby not only
    incurred personal liability but possibly even committed a
    criminal offence) is not tenable.
                                                                      (1) OJ, English Special Edition 1969 (I), p. 276.
                                                                      (2) OJ No L 169 of 29.6.1991, p. 1.
—   Unlawful extension of the character of recipient on the
    ground of alleged evasion of the recovery of the aid: the
    contested decision also infringes Article 87(1) EC, since
    there was no benefit to the undertakings not involved in
    the procedure, not even indirectly by means of any
    misapplication of aid.