Judgments nº T-376/07 of Court of First Instance of the European Communities, November 25, 2009

Resolution Date:November 25, 2009
Issuing Organization:Court of First Instance of the European Communities
Decision Number:T-376/07
SUMMARY

State aid – Aid to small and medium-sized enterprises – Decision requiring information to be provided concerning two State aid schemes – Commission’s monitoring powers under the fourth sentence of Article 9(2) of Regulation (EC) No 70/2001

 
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In Case T‑376/07,

Federal Republic of Germany, represented by M. Lumma, J. Möller and B. Klein, acting as Agents,

applicant,

v

Commission of the European Communities, represented by K. Gross and B. Martenczuk, acting as Agents,

defendant,

APPLICATION for annulment of Commission Decision C(2007) 3226 of 18 July 2007 requiring information to be provided concerning two State aid schemes coming under Commission Regulation (EC) No 70/2001 of 12 January 2001 on the application of Articles [87 EC] and [88 EC] to State aid to small and medium-sized enterprises (OJ 2001 L 10, p. 33),

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fifth Chamber),

composed of M. Vilaras, President, M. Prek (Rapporteur) and V.M. Ciucă, Judges,

Registrar: T. Weiler, Administrator,

having regard to the written procedure and further to the hearing on 25 June 2009,

gives the following

Judgment

Legal context

1 Article 3 of Council Regulation (EC) No 994/98 of 7 May 1998 on the application of Articles [87 EC] and [88 EC] to certain categories of horizontal State aid (OJ 1998 L 142, p. 1) (‘the basic regulation’), headed ‘Transparency and monitoring’ reads as follows:

‘1. When adopting regulations pursuant to Article 1, the Commission shall impose detailed rules upon Member States to ensure transparency and monitoring of the aid exempted from notification in accordance with those regulations. Such rules shall consist, in particular, of the requirements laid down in paragraphs 2, 3 and 4.

  1. On implementation of aid systems or individual aids granted outside any system, which have been exempted pursuant to such regulations, Member States shall forward to the Commission, with a view to publication in the Official Journal of the European Communities, summaries of the information regarding such systems of aid or such individual aids as are not covered by exempted aid systems.

  2. Member States shall record and compile all the information regarding the application of the group exemptions. If the Commission has evidence which leads it to doubt that an exemption regulation is being applied properly, the Member States shall forward to it any information it considers necessary to assess whether an aid complies with that regulation.

  3. At least once a year, Member States shall supply the Commission with a report on the application of group exemptions, in accordance with the Commission’s specific requirements, preferably in computerised form. The Commission shall make access to those reports available to all the Member States. The Advisory Committee referred to in Article 7 shall examine and evaluate those reports once a year.’

    2 Recital 20 of Commission Regulation (EC) No 70/2001 of 12 January 2001 on the application of Articles [87 EC] and [88 EC] to State aid to small and medium-sized enterprises (OJ 2001 L 10, p. 33), in the version then in force (‘the Regulation exempting SMEs’), adopted on the basis of Article 1 of the basic regulation, reads as follows:

    ‘In order to ensure transparency and effective monitoring, in accordance with Article 3 of [the basic regulation], it is appropriate to establish a standard format in which Member States should provide the Commission with summary information whenever, in pursuance of this Regulation, an aid scheme is implemented or an individual aid outside such schemes is granted, with a view to publication in the Official Journal of the European Communities. For the same reasons, it is appropriate to establish rules concerning the records that Member States should keep regarding the aid exempted by this Regulation. For the purposes of the annual report to be submitted to the Commission by Member States, it is appropriate for the Commission to establish its specific requirements, including, in view of the wide availability of the necessary technology, information in computerised form.’

    3 Article 9(2) of the Regulation exempting SMEs, headed ‘Transparency and monitoring’ provides:

    ‘Member States shall maintain detailed records regarding the aid schemes exempted by this Regulation, the individual aid granted under those schemes, and the individual aid exempted by this Regulation that is granted outside any existing aid scheme. Such records shall contain all information necessary to establish that the conditions for exemption, as laid down in this Regulation, are fulfilled, including information on the status of the company as an SME. Member States shall keep a record regarding an individual aid for 10 years from the date on which it was granted, and regarding an aid scheme, for 10 years from the date on which the last individual aid was granted under such scheme. On written request, the Member State concerned shall provide the Commission, within a period of 20 working days or such longer period as may be fixed in the request, with all the information which the Commission considers necessary to assess whether the conditions of this Regulation have been complied with.’

    Background to the dispute

    4 By two letters dated 26 July 2006, the Commission of the European Communities requested the Federal Republic of Germany to provide it with information relating to aid schemes XS 24/2002 and XS 29/2002, in order for it to verify whether those schemes were consistent with the Regulation exempting SMEs. In particular, the Federal Republic of Germany was requested to provide the Commission with a list of recipients of aid exceeding EUR 200 000 in 2005 under those schemes, and information concerning those recipients. The Federal Republic of Germany complied with those requests on 24 August 2006 in the case of aid scheme XS 24/2002 and on 1 September and 25 October 2006 in the case of aid scheme XS 29/2002.

    5 In two letters dated 30 October 2006 concerning aid schemes XS 24/2002 and XS 29/2002, respectively, the Commission stated that the schemes in question appeared to be consistent...

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