2000/524/EC: Commission Decision of 18 January 2000 on the State aid granted by Germany to Linde AG (notified under document number C(2000) 64) (Text with EEA relevance) (Only the German text is authentic)

• Articles: 5

Article 1

The aid granted to Linde AG by Germany in the form of a grant for the construction of a carbon monoxide production facility in Leuna (Saxony-Anhalt) is compatible with the common market as regards the portion which, in accordance with the cumulation rules, does not exceed the 35 % ceiling laid down for national regional aid in Saxony-Anhalt.

Article 2

The aid granted to Linde AG by Germany in the form of a grant for the construction of a carbon monoxide production facility in Leuna (Saxony-Anhalt) is incompatible with the common market under Article 87(1) of the EC Treaty as regards the portion which, in accordance with the cumulation rules, exceeds the 35 % ceiling laid down for national regional aid in Saxony-Anhalt.

Article 3

1. Germany shall take all necessary measures to recover from the recipient the aid referred to in Article 2 and unlawfully made available to the recipient.

2. Recovery shall be effected in accordance with the procedures and provisions of national law. The aid to be recovered shall include interest from the date on which it was made available to the recipient until the date of its recovery. Interest shall be calculated on the basis of the reference rate used for calculating the grant-equivalent of regional aid.

Article 4

Germany shall inform the Commission, within two months of notification of this Decision, of the measures taken to comply with it.

Article 5

This Decision is addressed to the Federal Republic of Germany.

Done at Brussels, 18 January 2000.

For the Commission

Mario Monti

Member of the Commission

(1) OJ C 194, 10.7.1999, p. 15.

(2) In its Decisions (see Decisions in Cases NN 108/91, E 15/92 and NN 768/94 - Germany - Treuhand) the Commission has recognised the unique and unprecedented background to THA activity in connection with the transition from a centrally planned to a market economy. It therefore also accepts that the elimination of ecological damage caused before 1 July 1990 does not constitute State aid.

(3) This Decision is without prejudice to any aid granted in connection with the privatisation agreement of 22 April 1993.

(4) According to a recent report, the price of CO in the United States is currently DEM 250/1000 Nm3 (See European Chemical News, 29 March 1999, pp 28 to 29).

(5) The exact figures are confidential.

(6) The exact figures are confidential.

(7) The exact figures are confidential.

(8) The exact figures are confidential.

(9) The exact figures are confidential.

(10) The exact figures are confidential.

(11) In 1997 the value of intra-Community trade in industrial gases (NACE 24.11) was EUR 244749400 (Eurostat).

(12) OJ C 368, 23.12.1994, p. 12.

(13) Investment Allowance Law (Investitionszulagegesetz). Measures under this law qualify as regional investment aid under Article 87(1) of the EC Treaty and have been approved by the Commission (aid scheme N 494/A/95).

(14) ECR [1994] I-4103.

(15) ECR [1997] I-135.

(16) OJ C 74, 10.3.1998, p. 9.

(17) See footnote 9 point 4.5 of the guidelines.

(18) Point 4.18 of the guidelines on national regional aid states that the aid intensity ceiling shall apply to the total aid: (i) where assistance is granted concurrently under several regional schemes; (ii) whether the aid comes from local, regional, national or Community sources.

(19) See footnote 11.

(20) The exact figures are confidential.

(21) Industrial gas prices in the Member States differ from those prevailing in the United States. But prices in Germany are relatively high even by Community standards.

(22) In accordance with general legal principles, agreements remain valid so long as there is no change in the basic conditions and expectations which existed when they were concluded (rebus sic stantibus). Had the agreed price been influenced by the grant amount, it would be reasonable to expect Linde to try to renegotiate the price, in order to take account of the change in the economic and financial assumptions (in particular the "normal profit margin" mentioned by the German authorities) which results from the obligation to repay the amount of aid found to be incompatible.

(23) Commission communication of 24 November 1983 (OJ C 318). See also the Judgement of the Court of Justice in Case 70/72 Commission v. Germany [1973] ECR 813 and Case 310/85 Deufil GmbH and Co. KG v Commission ECR [1987] 901.

(24) Letter from the Commission to the Member States SG (91) D/4577, 4 March 1991. See also the Judgment of the Court of Justice in Case 142/87 Belgium v. Commission ECR [1990] I-959.

(25) Judgment of the Court of Justice in Case 142/87 Belgium v. Commission ECR [1990] I-959, points 58 to 63.