Technische Glaswerke Ilmenau GmbH v Commission of the European Communities.

• Jurisdiction: European Union
• Celex Number: 62002TO0378
• ECLI: ECLI:EU:T:2003:216
• Court: General Court (European Union)
• Date: 01 August 2003
• Docket Number: T-378/02
• Procedure Type: Recurso de anulación

Case T-378/02 R


Technische Glaswerke Ilmenau GmbH
v
Commission of the European Communities

«(Proceedings for interim measures – State aid – Obligation to recover aid – Prima facie case – Urgency – Balancing of interests – Exceptional circumstances – Provisional suspension)»

Order of the President of the Court of First Instance, 1 August 2003

Summary of the Order

1..

Applications for interim measures – Suspension of operation of a measure – Interim relief – Conditions for granting – Prima facie case – Urgency – Cumulative requirements – Balancing of all the interests involved

(Arts 242 EC and 243 EC; Rules of Procedure of the Court of First Instance, Art. 104(2))

2..

State aid – Investigation by the Commission – Breach, when adopting a decision to open the formal review procedure, of the requirement to act within a reasonable time – Not sufficient to render the final decision unlawful

(Art. 88(2) EC; Charter of Fundamental Rights of the European Union, Art. 41(1))

3..

Applications for interim measures – Suspension of operation of a measure – Conditions for granting – Urgency – Factors capable of being taken into consideration

(Arts 88(2) EC and 242 EC)

1.

Article 104(2) of the Rules of Procedure of the Court of First Instance provides that an application for interim measures must state the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for. Those conditions are cumulative, so that an application for interim measures must be dismissed if any one of them is not fulfilled. The court hearing the application for interim measures shall also, where appropriate, weigh up the interests involved. see para. 53

2.

Whilst the conducting of administrative procedures within a reasonable period is a general principle of Community law, compliance with which is enforced by the Community judicature, and that right is reiterated, as an element of the right to good administration, by Article 41(1) of the Charter of Fundamental Rights of the European Union, the mere fact that a decision opening the formal review procedure under Article 88(2) EC was adopted after the expiry of a reasonable period is not sufficient to render a decision taken by the Commission at the conclusion of that procedure unlawful. see para. 65

3.

When examining an application for suspension of operation of the obligation to repay an alleged State aid, imposed by a decision taken under Article 88(2) EC and resulting from a contested breaking-off of the formal investigation procedure which preceded its adoption and the adoption of another decision to which it is linked, and the suspension of operation of which is also applied for in separate proceedings for interim relief, the court hearing the application may, for the purposes of examining the urgency of the application, consider it appropriate to take account of the overall situation arising for the applicant from the operation of both decisions. see para. 91

ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE
1 August 2003 (1)

((Proceedings for interim relief – State aid – Obligation to recover aid – Prima facie case – Urgency – Weighing of interests – Exceptional circumstances – Provisional suspension))

In Case T-378/02 R, Technische Glaswerke Ilmenau GmbH, established in Ilmenau (Germany), represented by G. Schohe and C. Arhold, lawyers, with an address for service in Luxembourg,

applicant,

v

Commission of the European Communities, represented by V. Di Bucci and V. Kreuschitz, acting as Agents, with an address for service in Luxembourg,

defendant,

supported bySchott Glas, established in Mainz (Germany), represented by U. Soltész, lawyer,

intervener,

APPLICATION for suspension of the operation of Article 2 of Commission Decision C(2002) 2147 final of 2 October 2002 on State aid (C 44/2001) granted by Germany in favour of Technische Glaswerke Ilmenau GmbH,

THE PRESIDENT OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES,

Registrar: H. Jung,

makes the following

Order

Background

1

Technische Glaswerke Ilmenau ( TGI) is a German company with its registered office in Ilmenau in the Freistaat Thüringen ( Land of Thuringia). It carries on the business of making glassware.

2

TGI was formed in 1994 by Mr and Mrs Geiß, with the aim of taking over four of the 12 glass production lines (furnaces) of the former Ilmenauer Glaswerke GmbH ( IGW), a company which had been liquidated by the Treuhandanstalt (a public trust management company which subsequently became the Bundesanstalt für vereinigungsbedingte Sonderaufgaben, the BvS). The furnaces in question came from the nationalised assets of the Volkseigener Betrieb Werk für Technisches Glas Ilmenau which, before the reunification of Germany, was the centre of glass manufacture in the former German Democratic Republic.

3

The sale of the four furnaces by IGW to the applicant was carried out in two stages, namely, by a first contract of 26 September 1994 ( asset deal 1), approved by the Treuhandanstalt in December 1994, and by a second contract of 11 December 1995 ( asset deal 2), approved by the BvS on 13 August 1996.

4

Under asset deal 1, the purchase price of the first three furnaces came to a total of DEM 5 800 000 (EUR 2 965 493) and was to be paid in three instalments, on 31 December 1997, 1998 and 1999. Payment was secured by a charge of DEM 4 000 000 (EUR 2 045 168) on the site of the three furnaces, and by a bank guarantee of DEM 1 800 000 (EUR 920 325).

5

Under asset deal 2, the fourth furnace, but not the land appertaining to it, was also sold by IGW to the applicant ─ as no other investors were interested ─ at the price of DEM 50 000 (EUR 25 565).

6

Under various leasing agreements, the last of which is dated 13 August 1998, the applicant had the use of what is called the old frit house) ( das alte Gemengehaus), which was owned by Thüringer Liegenchaftsgesellschaft ( TLG), an undertaking controlled by the Land of Thuringia. The applicant used the old frit house to supply a fourth furnace, the site of which also belongs to TLG and which is situated in a shed of the former works, near the raw materials needed for the manufacture of glass (namely, the frit).

7

It is common ground that the applicant had cash flow problems in 1997. In view of those problems, it entered into negotiations with the BvS. On 18 December 1997, according to the applicant, the BvS and the Land of Thuringia decided on a coordinated initiative consisting essentially in two measures.

8

First, by an agreement of 16 February 1998, the BvS waived the purchase price of DEM 4 000 000 (EUR 2 045 168) under asset deal 1 ( the payment waiver). According to the applicant, this waiver had the effect of compensating for the loss of a grant of the same amount promised by the Land of Thuringia in respect of asset deal 1. The payment of the balance of the purchase price, namely DEM 1 800 000 (EUR 914 109) was deferred until 31 December 2003, subject to the payment of interest. In addition, the bank guarantee for the balance of the price was converted into a mortgage on the land of the first three furnaces, namely a lower-ranking charge ( nachrangige Grundschuld) in order to improve TGI's cash flow ( the novation of the bank guarantee).

9

Secondly, the Land of Thuringia, through its own bank, Thüringer Aufbaubank ( TAB) granted the applicant a loan of DEM 2 000 000 (EUR 1 015 677) at ...% (2) per annum by an agreement of 26 February and 3 March 1998 ( the TAB loan). According to the applicant, this loan came from the Land's consolidation fund, one of the general State aid schemes authorised by the Commission under aid measure NN 74/95 (approved by Commission Decision SG (96) D/1946). The loan was paid to the applicant on 30 November 1998. In addition, the repayment of the loan is secured by a mortgage on the said land and by a directly enforceable guarantee given by Mr Geiß on 3 March 1998.

10

By letter of 1 December 1998, Germany notified the Commission of various measures, which included the purchase price waiver and the TAB loan, designed to consolidate the applicant's financial position.

11

At the end of 1998 the Land of Thuringia demolished the buildings on TLG's land, including the old frit house, in order to create a suitable empty site for the construction of a technology and research park which was to be called Am Vogelherd ( the TRP). As a result of the demolition, in addition to purchasing the site of the fourth furnace, the applicant contends that it had to increase the capacity of the new frit house (which it had had to build on its own land in 1995 to supply the first three furnaces) and construct a bridge in the form of a conveyor belt ( Bandbrücke) to supply the fourth furnace from the new frit house by crossing over the public highway. The applicant alleges that these works and the said purchase suddenly entailed additional costs at the beginning of 1998 which were forecast as being likely to reach DEM ... million (EUR ...), a sum which was expressly taken into account in the TAB loan agreement.

12

By letter SG (2000) D/102831 dated 4 April 2000, the Commission initiated the formal investigation procedure laid down in Article 88(2) EC concerning the payment waiver and the TAB loan, this procedure being given reference C 19/2000 ( the first formal procedure). Although this letter stated that, following the Commission's requests, additional information on these measures had been supplied by the German authorities on various occasions in the course of 1999, the Commission asked...