Judgments nº T-196/02 of Court of First Instance of the European Communities, September 12, 2007

• Resolution Date: September 12, 2007
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-196/02

In Case T-196/02,

MTU Friedrichshafen GmbH, established in Friedrichshafen (Germany), represented by † F.†Montag and T.†L¸bbig, lawyers,

applicant,

v

Commission of the European Communities, represented by V.†Kreuschitz, V.†Di Bucci and T.†Scharf, acting as Agents,

defendant,

APPLICATION for the annulment of Article 3(2) of Commission Decision 2002/898/EC of 9 April 2002 on the State aid implemented by Germany for SKL Motoren- und Systembautechnik GmbH (OJ 2002 L†314, p.†75),

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fourth Chamber, Extended Composition),

composed of H.†Legal, President, I.†Wiszniewska-Bia-ecka, V.†Vadapalas, E.†Moavero Milanesi and N.†Wahl, Judges,

Registrar: M me† K. Andov·, Administrator,

having regard to the written procedure and further to the hearing on 10†May 2007,

gives the following

Judgment

†Legal context

1††††††††Article 87 EC provides:

-1. Save as otherwise provided in this Treaty, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the common market.

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2††††††††Article 88 EC states:

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2. If, after giving notice to the parties concerned to submit their comments, the Commission finds that aid granted by a State or through State resources is not compatible with the common market having regard to Article 87, or that such aid is being misused, it shall decide that the State concerned shall abolish or alter such aid within a period of time to be determined by the Commission.

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   3††††††††Under Article 10 of Council Regulation (EC) No 659/1999 of 22†March 1999 laying down detailed rules for the application of Article [88] EC (OJ 1999 L 83, p.†1):

   -1. Where the Commission has in its possession information from whatever source regarding alleged unlawful aid, it shall examine that information without delay.

2. If necessary, it shall request information from the Member State concerned. Article 2(2) and Article 5(1) and (2) shall apply mutatis mutandis.

3. Where, despite a reminder pursuant to Article 5(2), the Member State concerned does not provide the information requested within the period prescribed by the Commission, or where it provides incomplete information, the Commission shall by decision require the information to be provided (hereinafter referred to as an -information injunction-). The decision shall specify what information is required and prescribe an appropriate period within which it is to be supplied.-

   4††††††††Article 13(1) of Regulation No†659/1999 provides:

   -The examination of possible unlawful aid shall result in a decision pursuant to Article 4(2), (3) or (4). In the case of decisions to initiate the formal investigation procedure, proceedings shall be closed by means of a decision pursuant to Article 7. If a Member State fails to comply with an information injunction, that decision shall be taken on the basis of the information available.-

   5††††††††Article 14 of the regulation provides:

   -1. Where negative decisions are taken in cases of unlawful aid, the Commission shall decide that the Member State concerned shall take all necessary measures to recover the aid from the beneficiary (hereinafter referred to as a -recovery decision-). The Commission shall not require recovery of the aid if this would be contrary to a general principle of Community law.

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   †Background to the dispute

   6††††††††By letter of 9 April 1998, the German authorities notified a number of payments of financial aid to the Commission, granted inter alia through the Bundesanstalt f¸r vereinigungsbedingte Sonderaufgaben (-the BvS-), to SKL Motoren- und Systemtechnik GmbH (-SKL-M-), in the context of its restructuring. Since a part of that aid had already been granted, the file was registered as non-notified aid, under reference NN 56/98.

   7††††††††SKL-M, which, before its restructuring, belonged to the group Lintra Beteiligungsholding GmbH, is an undertaking operating in the sector of manufacture of engines for ships and boats.

   8††††††††With the aid of BvS, SKL-M and MTU Friedrichshafen GmbH (-MTU- or -the applicant-), operating in the sector of production of high-powered diesel engines, entered into contractual relations in 1997, with a view to MTU taking over SKL-M..

   9††††††††On 5 November 1997, two agreements were entered into between MTU and SKL-M. The first gave MTU an option to purchase shares in SKL-M, with the possibility to acquire the whole of the shares for the symbolic price of one Deutschmark before 1 December 1999, then for a -reasonable price- before 31†December 2001. The second agreement (the Wechselseitiger Lizenz- und Kooperationsvertag zwischen SKL-M und MTU, -the WLKV-), for the creation of a joint-venture, laid down the framework of rules on the joint use of the two undertakings- know-how, as well as in relation to studies on, manufacture and sale of two new types of engines, that is, a gas engine and an in-line cylinder engine. A third agreement was entered into on the same day between BvS, the Land of Saxony-Anhalt and SKL-M, governing the payment of restructuring aid.

   10††††††Despite the fact that MTU finally chose not to take up the option provided for in the first-mentioned agreement and therefore decided not to proceed with the takeover of SKL-M, given the lack of legal certainty regarding aid previously paid by the Federal Republic of Germany to SKL-M, SKL-M and MTU nevertheless continued their cooperation within the framework of the WLKV.

   11††††††On 15 June 2000, MTU invoked Clause 5 of the WLKV and, in accordance with that provision, was granted exclusive use of the know-how falling within the WLKV with regard to third parties, including the industrial property rights and applications for registration of those rights which existed at least at that date. In return for that right, SKL-M received a one-off payment, intended to cover the development costs incurred, in the framework of the agreed budget set out in Annex I to the WLKV, namely DEM 4.31 million for the gas engines and DEM†2.4 million for the in-line...