2004/165/EC: Commission Decision of 27 November 2002 on the aid scheme implemented by Germany: Thuringia consolidation programme (notified under document number C(2002) 4357) (Text with EEA relevance)

• Articles: 9

Article 1

The rules governing the Thuringia consolidation programme (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 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 the 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 not involved in producing goods or providing services for intra-Community trade.

To the extent that the rules are caught by Article 87(1), they involve unlawful aid.

Article 2

In so far as the rules establish operating aid for viable firms outside the sensitive sectors, they are compatible with the common market.

Article 3

In so far as the rules establish operating aid for firms in the sensitive sectors, they are incompatible with the common market where they fall within the scope of Article 87(1) of the EC Treaty.

Article 4

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.

Article 5

This Decision does not apply to those cases covered by the rules that have been the subject of other Commission proceedings or of a final Commission decision. Germany shall draw up a list of the cases concerned.

Article 6

Germany shall take all necessary measures to recover from the beneficiaries the aid referred to in Articles 3 and 4 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.

Article 7

Germany shall, in implementing this Decision, draw up a list of the firms concerned 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, received aid exceeding the ceiling laid down in that Regulation.

In implementing this Decision, Germany shall draw up a list of all firms in difficulty which were assisted under the rules and are not caught by Regulation (EC) No 69/2001 and shall indicate the criteria on which the classification is based.

In this connection, Germany shall also devise a method to identify the aid element in the guarantee.

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 but which were not involved in producing goods or providing services for intra-Community trade and shall indicate the criteria applied.

Article 8

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

Article 9

This Decision is addressed to the Federal Republic of Germany.

Done at Brussels, 27 November 2002.

For the Commission

Mario Monti

Member of the Commission

(1) Thüringer Staatsanzeiger No 33/1993, p. 1414.

(2) OJ C 213, 19.8.1992, p. 2.

(3) OJ C 108, 17.4.1999, p. 26.

(4) OJ C 213, 19.8.1992, p. 2.

(5) OJ C 29, 2.2.1996, p. 4.

(6) OJ L 60, 9.3.1999, p. 61.

(7) See footnote 2.

(8) OJ C 68, 6.3.1996, p. 9.

(9) OJ L 10, 13.1.2001, p. 30.

(10) 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.

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

(12) As regards non-notified aid, paragraph 101(b) of the 1999 Community guidelines on state aid for rescuing and restructuring firms in difficulty (Notice to Member States including proposals for appropriate measures; OJ C 288, 9.10.1999, p. 2) lays down that the Commission will examine for its compatibility with the common market 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 was granted. The Commission accordingly assessed the rules on the basis of the decision-making practice set out in its Eighth Report on Competition Policy (published in 1979) and on the basis of the 1994 guidelines.

(13) Commission letter to Member States SG(89) D/4328 of 5 April 1989.

(14) OJ C 71, 11.3.2000, p. 15.

(15) 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.

(16) See point 101 of the guidelines.

(17) OJ C 31, 3.2.1979, p. 9.

(18) OJ C 212, 12.8.1988, p. 2.

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

(20) OJ C 119, 22.5.2002, p. 22. (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.)

(21) See footnotes 16 and 17.

(22) It was replaced by a new de minimis loan programme which appears prima facie to comply with the de minimis provisions applicable.

(23) 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.

(24) OJ L 83, 27.3.1999, p. 1.