1999/646/EC: Commission Decision of 25 November 1998 on measures by Germany to assist InfraLeuna Infrastruktur und Service GmbH (notified under document number C(1998) 3840) (Text with EEA relevance) (only the German text is authentic)

Decision · 10 articles

Data as of 2026-07-04 · Compiled from an official source version. Later amendments or repeals may not be reflected; the official text prevails. · Read the official text ↗

Article 1

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Article 2

An unquantifiable part of the costs for rectifying environmental damage totalling DEM 150 million constitutes aid within the meaning of Article 92(1) of the EC Treaty; it is, however, compatible with the common market. The remaining part does not constitute aid.

Article 3

Germany shall ensure that all services set up and offered by InfraLeuna are made available, against an appropriate charge, to all on-site producers without exception, on a non-discriminatory basis.

Article 4

Germany shall ensure that the privatisation contract between InfraLeuna, Linde AG, Caproleuna GmbH and the Bundesanstalt für vereinigungsbedingte Sonderaufgaben (hereinafter "BvS") and the articles of association of InfraLeuna are amended as specified below: 1. The privatisation contract, and in particular paragraph 12 thereof, shall be amended to exclude the assumption of loss compensation by the BvS amounting to DEM 50 million. 2. The privatisation contract, and in particular paragraph 3 thereof, shall be amended so as to state that for the duration of the restructuring (until 31 December 2000) the BvS shall hold at least 1 % of the shares in InfraLeuna. 3. The privatisation contract shall be further amended in such a way that for the duration of the restructuring and for a period of 15 years thereafter, none of the members may hold more than 24,5 % of the shares. Germany shall ensure that the shareholdings of Caproleuna GmbH and Linde AG are reduced to 24,5 % in each case. In the second sentence of paragraph 3(5), the words "at the end of the restructuring phase" shall be deleted in order that the BvS may exercise its call option at any time. The first sentence of Article 3(3) shall be amended so as to state that no purchaser may acquire more than 24,5 % of InfraLeuna's capital. 4. The "goodwill" clause in paragraph 11(3) of the privatisation contract shall be deleted. 5. The privatisation contract, and in particular paragraph 11(3)(b) thereof, shall be amended in such a way that, of the amount made available by the BvS for site clearance, InfraLeuna may use up to a maximum of DEM 100 million for investment and restructuring, provided always that the implementation of additional investment and restructuring measures proves necessary or that the cost of investment and restructuring measures increases owing to external factors. The resources may be so reallocated, however, only with the agreement of the BvS. The BvS shall examine the necessity and suitability of the measures in cooperation with an independent expert. Any further transfer shall be ruled out. 6. The third subparagraph of paragraph 14(4) of the privatisation contract shall be deleted. 7. In the second sentence of paragraph 6(2) of the privatisation contract, the words "or to direct competitors of InfraLeuna" shall be deleted. 8. Paragraph 15(2) of the privatisation contract shall be amended in such a way that InfraLeuna is obliged to run the facilities for at least 15 years after completion of the restructuring (31 December 2000). 9. Article 11 of InfraLeuna's articles of association shall be amended in such a way that Article 6(5)(a) of those articles may be amended or deleted only by a unanimous resolution. In Article 6(5)(a) of InfraLeuna's articles of association, the words "where the total value of the contract exceeds DEM 1 million a year or DEM 5 million over the contract's lifetime" shall be deleted. 10. InfraLeuna's articles of association shall be amended in such a way that InfraLeuna's commitment to the low-profit principle, the ban on discrimination (Article3) and the prohibition on the distribution of dividends (Article 13(4)) shall remain unchanged for at least 15 years after completion of the restructuring.

Article 5

Germany shall ensure that any purchaser of shares in InfraLeuna pays the market price. The market value of the shares shall be assessed by an independent expert. The valuation shall be based on InfraLeuna's capitalised value over 15 years and non-distributed profits. If necessary, the privatisation contract as well as the articles of association shall be amended accordingly. If the market value of the shares turns out to be higher than their nominal value, Germany shall ensure that Caproleuna GmbH and Linde AG will pay the corresponding difference to the BvS.

Article 6

1. Germany shall send the Commission a copy of the amended contract within one month of its being concluded. 2. Pursuant to Article 93(3) of the EC Treaty, Germany shall give notice of any deviations from the amended contract and any tax or other advantages granted.

Article 7

1. Germany shall submit to the Commission half-yearly reports on the progress of restructuring and the amount of aid actually awarded under the various items in the privatisation contract, so as to allow it to verify that this Decision is being complied with. They shall be submitted during the first half of the year following the reporting period. 2. Germany shall also submit to the Commission the evidence referred to in paragraphs 10(3) and 11(3) of the privatisation contract, the evidence referred to in paragraph 14(3), and quarterly investment reports which shall be checked in advance by an independent expert as to the necessity and appropriateness of the costs. The final statement referred to in paragraph 14(4) shall also be submitted to the Commission.

Article 8

Germany shall refrain from granting any further funds to InfraLeuna in support of the restructuring plan which is the subject of this Decision.

Article 9

Germany shall inform the Commission within two months of the date of notification of this Decision of the measures which it has taken to comply therewith.

Article 10

This Decision is addressed to the Federal Republic of Germany. Done at Brussels, 25 November 1998. For the Commission Karel VAN MIERT Member of the Commission (1) OJ C 196, 26.6.1997, p. 3. (2) Commission decisions on state aid measures N 464/93, SG(94) D/5633 of 22 April 1994, and N 613/96, SG(97) D/488 of 23 January 1997, which apply until the end of 1999. (3) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. (4) The English term is used in the German text. (5) Interested parties were given full access to all business papers so as to enable them to make offers, but had to undertake not to misuse the knowledge thereby acquired. (6) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. (7) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. (8) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. (9) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. (10) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. (11) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. (12) OJ L 209, 24.7.1992, p. 1. (13) OJ L 199, 9.8.1993, p. 1. (14) OJ L 199, 9.8.1993, p. 54. (15) Capital costs are also taken into account in the price calculations, in line with recognised commercial principles. (16) The Steering Committee (Leitungsausschuß), is an independent body of the BvS which assesses schemes and carries out checks to ensure that public resources are properly used. It is appointed by the Federal Ministry of Finance and consists of independent auditors. At the relevant time its members were experts from Roland Berger and C& L. (17) The 24th outline plan adopted under the Joint Federal Government/Länder programme (Gemeinschaftsaufgabe), a Commission-approved aid scheme (N 531/95, SG(96) D/4868 of 22 May 1996). (18) OJ L 239, 19.9.1996, p. 1. (19) State aid measure NN 117/92. Measures under paragraph 249h of the Employment Promotion Act (Arbeitsförderungsgesetz, AFG) are intended to repair environmental damage and to prevent hazards resulting from such environmental damage on former industrial sites in the new Länder. The provision allows subsidies towards wage and other costs; the measures also serve to create employment, especially for unemployed young people, older people and the handicapped. The Commission found that the provision of public funds for the repair of environmental damage brought about before 1 July 1990 did not constitute state aid, in line with the transfer date provision in the first Treuhand Decision, and that the schemes to assist young people and in the framework of social services were not services for which there was competition. The Commission held that the measures in question did not constitute state aid. (20) The flexibility ceilings for transfers to investment or losses would increase correspondingly, and in addition the flexibility ceilings could be raised by the value of the measures taken in 1996 using funding under paragraph 249h of the Employment Promotion Act. (21) OJ C 346, 30.12.1992, p. 2. (22) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. (23) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. (24) Case 173/73 Italy v Commission [1974] ECR 709; Case 310/85 Deufil v Commission [1987] ECR 901. (25) See Commission Communication on state aid elements in sales of land and buildings by public authorities (OJ C 209, 10.7.1997, p. 3). (26) See also Decision 95/253/EC (OJ L 159, 11.7.1995, p. 21). (27) State aid measure NN 108/91, SG(91) D/17825, 26.9.1991. (28) OJ C 72, 10.3.1994, p. 3. (29) Joined Cases 67, 68 and 70/85 Kwekerij Bebroeders van der Kooy BV and others v Commission [1988] ECR 219. (30) Paragraph 1 of the Act concerning commercial and industrial cooperatives (Gesetz betreffend die Erwerbs- und Wirtschaftsgenossenschaften - GenG). (31) InfraLeuna's business plan lists in detail all measures, together with their expected cost. Unlike in the case of other privatisation schemes, the BvS's Steering Committee was therefore able for the first time to analyse in depth the need for and cost of the individual measures. The Commission accordingly assumes that a necessary adjustment was carried out to reduce excessive costs to a reasonable level. (32) See footnote 11.

Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.

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