Article 5
This Decision is addressed to Germany. Done at Brussels, 17 September 2003. For the Commission Mario MONTI Member of the Commission (1) OJ C 246, 12.10.2002, p. 14. (2) See footnote 1. (3) OJ L 83, 27.3.1999, p. 1. (4) Case C-482/99, France v. Commission (Stardust Marine), [2002] ECR I-04397. (5) Case C-482/99 (Stardust Marine), referred to above, point 37. (6) See Commission notice on the method for setting the reference and discount rates (OJ C 273, 9.9.1997, p. 3) and the reference rates applicable for Germany as from 1 August 1997 (see http://europa.eu.int/comm/ competition/state_aid/others/ reference_rates.html). (7) State aid N 640/99 France (OJ C 284, 7.10.2000, p. 4). (8) State aid N 132/99 Italy (OJ C 162, 10.6.2000, p. 23). (9) State aid C 42/2001 (ex NN 14/01) Spain (OJ C 300, 26.10.2001, p. 2). (10) State aid N 785/99 Italy (OJ C 328, 18.11.2000, p. 32). (11) State aid N 582/99 Italy (OJ C 40, 12.2.2000, p. 2). (12) Case C-482/99 (Stardust Marine), referred to above. (13) See case T-358/94 (Compagnie nationale Air France v. Commission), [1996] ECR II-2109, in particular points 55 to 61. (14) Case C-482/99 (Stardust Marine), referred to above, point 55. (15) See Opinion of Advocate General Jacobs in case C-482/1999 (Stardust Marine), referred to above, point 67. (16) See http://www.big-bremen.de/. (17) Brem.GBl. 1998, p. 134 (corrigendum Brem.GB. 1998, p. 171). The constitutionality of the law in its wording of 17 October 2000 (Brem.GBl. 2000, p. 399) was confirmed by the Bremen Constitutional Court in 2002 (see ruling of 15 January 2002 in case ST 1/01). (18) The business reports are published under http://www.big-bremen.de/. (19) See Drucksache 15/1238 of the regional parliament Bremische Bürgerschaft (Landtag), available under http://www.bremische- buergerschaft.de/. (20) See case C-328/99 and C-399/00, Italy and SIM 2 Multimedia SpA vs. Commission, not yet published, point 33; see also case C-482/99 (Stardust), referred to above, point 37. (21) Case 40/85, Belgium/Commission (Boch), [1986] ECR 2321 (2345) point 13. (22) See Case T-16/96, Cityflyer Express, [1988] ECR I-757 (777) point 52. (23) OJ C 273, 9.9.1997, p. 9. (24) See for instance case C-482/99 (Stardust), referred to above, point 71. (25) State aid N 132/99 - Italy (OJ C 162, 10.6.2000, p. 33). (26) State aid N 229/01 - Italy (OJ C 330, 24.11.2000, p. 2). (27) State aid C 42/2001 (ex NN 14/01) - Spain (OJ L 91, 8.4.2003, p. 23). (28) The Commission did not receive any precise information from the German authorities as of when SWG definitely knew that the financial situation of Köllmann AG had worsened. However, the Bremen Senator for Economic Affairs explained in a debate on request in the local parliament Bremische Bürgerschaft (Stadtbürgerschaft) that Köllmann had informed the Bremen authorities in March 2002 that it was in financial difficulties (see record of the 38th session of the 15th Bremische Bürgerschaft (Stadtbürgerschaft) on 17 September 2002, Plenarprotokollnr.: PlPr 15/38, S. 1761, available under http://bremische-buergerschaft.de/). Since no exact date was mentioned, the Commission therefore considers that both the Bremen authorities and SWG, acting on behalf of the Bremen authorities as described above, were informed in March 2002 and had to take this information into account as from April 2002. (29) OJ C 110, 8.5.2003, p. 21 (Corrigendum OJ C 150, 27.6.2003, p. 3). (30) See in particular subparagraph 6 of the Commission communication on the interest rates to be applied when aid granted unlawfully is being recovered (OJ C 110, 8.5.2003, p. 21 and OJ C 150, 27.6.2003, p. 3), where the following is stated: "(...) it appears that the effects of an unlawful aid are to provide funding to the beneficiary on similar conditions to a medium term non-interest bearing loan. Accordingly, the use of compound interest appears necessary to ensure that the financial advantages resulting from this situation are fully neutralised. (...).". (31) The applicable interest rate was 4,73 % for Germany on 15 April 1999. (32) As the loan is open-ended the relevant reference rate has to be used for each period it is applicable: For loan I: 5,70 % from 1 January 2000 to 31 December 2000; 6,33 % from 1 January 2001 to 30 November 2001;5,23 % from 1 December 2001 to 31 December 2001; 5,06 % from 1 January 2002 to 31 March 2002.For loan II: 5,70 % from 1 April 2000 to 31 December 2000; 6,33 % from 1 January 2001 to 30 November 2001;5,23 % from 1 December 2001 to 31 December 2001; 5,06 % from 1 January 2002 to 31 March 2002. (33) As the loan is open-ended the increased reference rate has to be used for each period it is applicable, i.e. for loan I and II: 9,06 % from 1 April 2002 to 31 December 2002; 8,80 % as from 1 January 2003. Any potential future modification of the relevant reference rate up to the date the loan is reimbursed has to be taken into account.