1. The State aid which Germany has granted to Graf von Henneberg Perzellan GmbH is incompatible with the common market.
2. The incompatible aid referred to in paragraph 1 includes the following measures in support of Graf von Henneberg Porzellan GmbH, established in 1990, which later became Graf von Henneberg in Abwicklung:
(a) loans from Hessische Landesbank (HeLaBa) under measures 5, 20 and 21, originally totalling DEM 28,530 million;
(b) loans from Bayerische Landesbank under measures 7, 12, 17 and 18, originally totalling DEM 43,023 million;
(c) a guarantee from the Treuhandanstalt (THA) of DEM 8,629 million under measure 10;
(d) grants of DEM 13,871 million from the THA under measure 11;
(e) a grant of DEM 5 million under measure 13;
(f) a loan from the Sparkasse Ilmenau under measure 22, originally amounting to DEM 3,2 million;
(g) a loan from the Sparkasse Efurt under measure 23, originally amounting to DEM 1,5 million;
(h) an advance payment of DEM 2 million from the Thüringer Aufbaubank (TAB) under measure 24;
(i) grants of DEM 2,077 million for the promotion of employment under measure 27.
The incompatible aid also includes the following measures in support of Graf von Henneberg Porzellan GmbH, established in 1995 and still active on the market:
(a) a loan of DEM 2 million from the HeLaBa under measure 28;
(b) a waiver of debt of DEM 0,940 million from the Federal Office for Special Tasks related to Unification (BvS) under measure 30;
(c) a participation of DEM 0,490 million from the Thüringer Industriebeteiligungs GmbH & Co. KG (TIB) in GvH2's initial capital under measure 31;
(d) a shareholder loan of DEM 0,490 million from the TIB under measure 32;
(e) loans from the TAB under measures 33, 34, 35, 37 and 38, originally totalling DEM 20,521 million;
(f) direct investment grants of DEM 5,981 million under measure 36;
(g) the amount of DEM 0,686 million paid up to 1996 out of the grants for the promotion of employment under measure 39;
(h) grants of DEM 0,451 million for research and development under measure 43.
1. Germany shall take all necessary measures to recover from the beneficiary the aid referred to in Article 1 and unlawfully made available to the beneficiary, with the exception of those aid measures which have already been paid back with interest since the date on which they were granted.
2. Recovery shall be effected without delay and in accordance with the procedures of national law, provided they allow the immediate and effective execution of the Decision. The aid to be recovered shall include interest from the date on which it was at the disposal of the beneficiary 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.
3. For the purpose of paragraph 2, the term "beneficiary" includes Graf von Henneberg Porzellan GmbH, established in 1990 and currently in bankruptcy, Graf von Henneberg Porzellan GmhH, established in 1995, which is also liable for the aid granted to its predecessor, and any other undertaking to which the assets of the abovementioned legal persons have been transferred or will be transferred in such a way as to frustrate the effectiveness of this Decision.
Germany shall inform the Commission, within two months of notification of this Decision, of the measures taken to comply with it.
This Decision is addressed to the Federal Republic of Germany.
Done at Brussels, 30 October 2001.
For the Commission
Mario Monti
Member of the Commission
(1) OJ C 272, 23.9.2000, p. 30.
(2) See footnote 1.
(3) OJ C 211, 28.7.2001, p. 27.
(4) With the exception of some real estate which, according to Germany, was sold.
(5) This credit was an advance on the THA grants under measure 11. It was fully made available and does not seem to have been claimed back as the grants were reduced, nor at the end of the two months for which it was awarded. On the contrary, it was prolonged at least six months.
(6) Data extracted from the website of Cerame-Unie (http://www.cerameunie.org).
(7) Panorama of EU Industry 1997, 9 to 20; NACE (Revision 1). See also Commission Decision 1999/157/EC in Case C 35/97, Triptis Porzellan GmbH (OJ L 52, 27.2.1999, p. 48).
(8) OJ C 273, 9.9.1997, p. 3.
(9) OJ C 209, 10.7.1997, p. 3.
(10) OJ L 83, 27.3.1999, p. 1.
(11) N 591/90, SG(90) D/91620, 20 December 1990.
(12) N 318/90, SG(90) D/27178, 14 November 1990.
(13) C 69/98, ex N 408/93.
(14) According to the scheme, an SME will not have more than 250 employees and either a turnover of DEM 40 million or assets of DEM 20 million.
(15) NN 25/95.
(16) Investment Allowance Acts 1991 (C 59/91, SG(92) D/8068, 18 June 1993) and 1993 (N 561/92, SG(92) D/16623, 24 November 1992). These schemes provide for different aid intensities for large and small enterprises. Rules on cumulation with other regional aids must also be complied with.
(17) N 477/91, SG(91) D/22704, 25 November 1991.
(18) NN 117/92, SG(95) D/341, 13 January 1995.
(19) 24th outline plan of the joint Federal Government/Länder scheme for improving regional economic structures N 531/95, (OJ C 291, 4.10.1996, p. 4.)
(20) OJ L 107, 30.4.1996, p. 4.
(21) See Commission Regulation (EC) No 69/2001: "aid should be considered to be granted at the moment the legal right to receive the aid is conferred to the beneficiary" (OJ L 10, 13.1.2001, p. 30). See also Annex II of Commission Regulation (EC) No 70/2001 where reference is always made to the granting of aid (OJ L 10, 13.1.2001, p. 33). See also Council Regulation (EC) No 659/1999 which always refers to the granting of aid (footnote 13).
(22) NN 107/97, in force since 1 April 1997, approved by letter SG(98) 1049, 6 February 1993.
(23) The Investment Allowance Act 1996 provides for different aid intensities for small and large undertakings (N 494/95, SG(95) D/17154, 27 December 1995).
(24) N 331/96, SG(97) D/482, 23 January 1997.
(25) OJ C 71, 11.3.2000, p. 14, point 3.2.
(26) OJ C 368, 23.12.1994, p. 12.
(27) Point 7.5 of the 1999 guidelines states that "the Commission will examine the compatibility with the common market of any rescuing and restructuring aid granted without its authorisation (...) on the basis of the guidelines in force at the time the aid is granted (...)" (OJ C 288, 9.10.1999, p. 2).
(28) Without any justification, the turnover was supposed to increase from DEM 14 million to over DEM 40 million within one year.
(29) As stated in a letter from Mr Frowein dated 3 January 1998 which is in the Commission's possession.
(30) In the event of a share purchase, the obligation to repay the aid remains with the company. See, for example, Case C-303/88 Italy v Commission [1991] ECR I-1433.
(31) See footnote 33, recital 60.
(32) Commission Decision 2000/536/EC, Seleco SpA (OJ L 227, 7.9.2000, p. 24).
(33) Commission Decisions 2000/567/EC, SMI (OJ L 238, 22.9.2000, p. 50) and 2000/796/EC, CDA (OJ L 318, 16.12.2000, p. 62).
