The rules governing the Thuringia loan programme for small and medium-sized enterprises (hereinafter referred to as the rules) establish State aid within the meaning of Article 87(1) of the EC Treaty.
The rules do not establish State aid within the meaning of Article 87(1) of the EC Treaty if the payments fall within the scope of Regulation (EC) No 69/2001 or, where this is not the case, within the scope of the de minimis provisions in force at the time the rules were implemented and, in combination with other de minimis aid, do not exceed the relevant de minimis ceilings of Regulation (EC) No 69/2001 or other relevant de minimis provisions.
The rules do not establish aid within the meaning of Article 87(1) of the EC Treaty if the payments were for firms producing goods or providing services that are not the subject of intra-Community trade.
To the extent that the rules are caught by Article 87(1), they involve unlawful aid.
In so far as the rules establish operating aid for viable firms, they are incompatible with the common market where they fall within the scope of Article 87(1) of the EC Treaty.
In so far as the rules establish rescue and restructuring aid for firms in difficulty, they are incompatible with the common market where they fall within the scope of Article 87(1) of the EC Treaty.
This Decision does not apply to those cases covered by the rules that were the subject of other Commission proceedings or of a formal Commission decision. Implementing this Decision, Germany shall draw up a list of the firms concerned.
Germany shall take all necessary measures to recover from the beneficiaries the aid referred to in Articles 2 and 3 and unlawfully made available to them.
Recovery shall be effected without delay and in accordance with the procedures of national law provided that 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 beneficiaries 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.
Germany shall, in implementing this Decision, draw up a list of the firms concerned in cases which fall outside the sectoral scope of Regulation (EC) No 69/2001 or which, if the aid element contained in the guarantee and other de minimis aid granted during the relevant period are included, exceed the ceiling laid down in that Regulation.
This list shall indicate which firms are in difficulty and which are viable and on which section of the programme the aid is based. Germany shall also indicate the criteria used to classify the firms in difficulty.
In this connection, Germany shall also devise a method to identify the aid element in the guarantee on the basis of the Commission notice on the application of Articles 87 and 88 of the EC Treaty to state aid in the form of guarantees.
In implementing this Decision, it shall draw up a list of firms which were assisted under the rules and are not caught by Regulation (EC) No 69/2001 and which produce goods or provide services that are not the subject of intra-Community trade and shall indicate the criteria applied.
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.
Brussels, 27 November 2002.
For the Commission
Mario Monti
Member of the Commission
(1) Thüringer Staatsanzeiger No 7/1996, p. 390.
(2) OJ C 213, 19.8.1992, p. 2.
(3) OJ C 108, 17.4.1999, p. 29.
(4) A loan had been granted to Korn Fahrzeuge und Technik GmbH under the rules at issue in this case.
(5) Thüringer Staatsanzeiger No 22/1999, pp. 1236 and 1237.
(6) OJ C 368, 23.12.1994, p. 12.
(7) This is clearly a reference to case NN 74/95.
(8) This is clearly a reference to case NN 74/95.
(9) This is clearly a reference to case NN 74/95.
(10) According to this letter, the aid intensity should be deemed to be 0,5 % of the guaranteed loan amount in the case of viable firms, but up to 100 % of the guaranteed loan amount in the case of firms in difficulty.
(11) Aid N 117/96 (OJ C 288, 23.9.1997, p. 5).
(12) OJ C 29, 2.2.1996, p. 4.
(13) OJ L 60, 9.3.1999, p. 61.
(14) See footnote 2.
(15) OJ C 68, 6.3.1996, p. 9.
(16) OJ L 10, 13.1.2001, p. 30.
(17) These guidelines entered into force on their publication in the Official Journal of the European Communities. By Decision 1999/183/EC, the Commission found that national aid schemes in Germany were incompatible with the common market within the meaning of Article 87(1) of the EC Treaty in so far as they did not comply with the guidelines and appropriate measures for state aid (in connection with investments in the processing and marketing of agricultural products) which were communicated to Germany by letter SG (95) D/13086 of 20 October 1995.
(18) As regards non-notified aid, paragraph 101(b) of the 1999 Community guidelines on State aid for rescuing and restructuring firms in difficulty (OJ C 288, 9.10.1999, p. 2) lays down that the Commission will examine any rescue or restructuring aid granted without its authorisation and therefore in breach of Article 88(3) of the EC Treaty on the basis of the guidelines in force at the time the aid is granted. The Commission accordingly examined the rules on the basis of the 1994 guidelines.
(19) Commission letter to Member States SG(89)D/4328 of 5 April 1989.
(20) This is particularly true in the light of the Commission Decision concerning state aid case C 19/95 - Germany, negative final decision on state guarantees for measures to restructure large firms in difficulty under the State guarantee schemes of the Länder of Saxony-Anhalt, Lower Saxony, North Rhine-Westphalia, Rhineland-Palatinate, Bavaria, Bremen, Mecklenburg-Western Pomerania, Schleswig-Holstein and Saxony (letter SG(96) D/3694 of 3 April 1996), in which the Commission commented extensively on the aid nature of guarantees.
(21) OJ C 71, 11.3.2000, p. 14.
(22) Under point 2.2. of the 1994 guidelines, they applied only to the extent that they were consistent with the special rules in the sensitive sectors. At the time in question, there were special aid rules in agriculture, fisheries, steel, shipbuilding, textiles and clothing, synthetic fibres, the motor industry, transport and the coal industry. In the agricultural sector, as an alternative to these guidelines, special Commission rules for rescue and restructuring aid could still be applied to individual recipients at the discretion of the Member State concerned.
On 1 January 1998 the Community guidelines on state aid for rescuing and restructuring firms in difficulty entered into force. They differed from the 1994 guidelines only in respect of the agricultural sector (OJ C 283, 19.9.1997, p. 2).
(23) OJ C 212, 12.8.1988, p. 2.
(24) OJ C 74, 10.3.1998, p. 9.
(25) OJ C 258, 9.9.2000, p. 5.
(26) OJ C 119, 22.5.2002 (For the definitions applied, the Commission refers to the provisions specified. It examined the aid to viable firms in the light of its 1988 communication on the method for the application of Article 92(3)(a) and (c) to regional aid. Its assessment is not affected by application of the 1998 guidelines on national regional aid).
(27) See, for example, Commission decision SG(96) D/1946 of 6 February 1996 on State aid case NN 74/95 - Thuringia consolidation fund for firms in difficulty.
(28) The Commission notes that the Thuringia loan programme under consideration was replaced on 1 June 1999 by a new loan programme which appears prima facie to comply with the de minimis provisions applicable.
(29) Thuringia consolidation programme (C 85/98) and Thuringia working-capital programme (C 28/99).
(30) This practice was confirmed with the adoption of appropriate measures to adapt existing aid schemes to the provisions of the 2000 amendments to the regional guidelines and by Commission letter SG (98) D/1670 of 24 February 1998.
(31) As regards application of the exemption under Article 87(2)(c) of the EC Treaty, the Commission refers to the Court of Justice ruling of 19 September 2000 in Case C 156/98 Germany v Commission (not yet published) concerning Section 52(8) of the German Income Tax Law.
(32) OJ L 83, 27.3.1999, p. 1.
