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	Databáze č. 17 : Databáze judikatury

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	Číslo (Kód CELEX): Number (CELEX Code):		61995J0399

	Název: Title:		Order of the President of the Court of 3 May 1996 Case C-399/95 R Federal Republic of Germany v Commission of the European Communities [1996] ECR I-2441 "Neue Maxhuette"

	Publikace: Publication:

	Předmět (klíčová slova): Keywords

	Související předpisy: Corresponding acts:

	Odkaz na souvisejicí judikáty: Corresponding Judgements:		· Plaumann Case 25/62 Plaumann v Commission [1963] ECR 95 · CFDT Case 66/76 CFDT v Council [1977] ECR 305 · Johnston Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651 · UNECTEF Case 222/86 UNECTEF v Heylens [1987] ECR 4097 · Factortame Case C-213/89 Factortame and Others [1990] ECR I-2433 · Zuckerfabrik Joined Cases C-143/88 and C-92/89 Zuckerfabrik Suederdithmarschen and Zuckerfabrik Soest [1991] ECR I-415 · Cases 31/77 R and 53/77 R Commission v United Kingdom [1977] ECR 921 · Case 40/85 Belgium v Commission [1986] ECR 2321 · Case C-303/88 Italy v Commission [1991] ECR I-1433 · Case C-305/89 Italy v Commission [1991] ECR I-1603 · Joined Cases C-278/92, C-279/92 and C-280/92 Spain v Commission [1994] ECR I- 4103


	Plný text: Fulltext:		Ne

Fakta:
Neue Maxhuette was created in 1990 as the successor to a liquidated steel company. The Land of Bavaria had a shareholding of 45% in it, and there were various industrial shareholders. Since Neue Maxhuette had not made any profits despite the award, authorised by the Commission, of a 10 million DM loan by its shareholders in 1993, and since the private shareholders had started selling their shares to a private group of steel companies from December 1992, the Bavarian Government decided to assign its shareholding to the same group of companies in the context of a restructuring plan of the economy. To that end, several financial measures were proposed by the Government, but prohibited by Commission decision 95/422/ECSC of 4 April 1995 as State aid incompatible with the common market.
In addition, between March 1993 and August 1994, the Bavarian government had granted 10 loans, totalling 49,895 Million DM, at an interest rate of 7,5 % per annum, repayable only if the company would record profit in future years. In a decision of 18 October 1995, the Commission held that those loans also constituted State aid incompatible with the common market and had to be repaid. The Federal Republic of Germany brought an annulment action against it under Art. 33 TECSC and requested the suspension of the operation of the contested decision pursuant to Art. 39 TECSC. The order at issue here deals with the request for this interim measure only.
The legal background is as follows: Art. 4(c) TECSC states that subsidies or aids granted by States in any form whatsoever are incompatible with the common market for coal and steel and are accordingly to be prohibited. However, based on Art. 95 (1) and (2), the Commission adopted various decisions, among which No 3855/91/ECSC
Of 27 November 1991 establishing Community rules for aid to the steel industry (OJ 1991 L 362, p. 57)
, permitting the grant of aid to the steel sector under certain, narrowly defined conditions. Art. 1 (2) clarifies the scope of the concept of "aid". It cover, inter alia, loans, the interest on which is at least partially dependent on the undertaking's financial performance, granted by public authorities or other bodies to steel undertakings, if they cannot be regarded as a genuine provision of risk capital according to usual investment practice in a market economy. Arts. 2 to 5 list certain limited categories of aid which may be allowed. Art. 6 contains special control mechanisms such as in particular the duty to inform the Commission, in sufficient time for it to submit its comments, of any plans to grant or alter aid or other financial assistance. Art. 6(4) provides that if, after giving notice to the parties, the Commission finds that the aid in question is incompatible with the provisions of this decision, it shall take a decision and inform the Member State thereof. As a consequence, the planned measures falling within Art. 6(1) and (2) may be put into effect only with the aproval of and subject to any conditions laid down by the Commission. Moreover, the Commission is also vested with the power to impose sanctions in accordance with Art. 88 TECSC.

Názor soudu a komentář:
First, the Court rejects the Commission's contention according to which a suspension of a Commission decision would, unlike with the EC-Treaty, not be permissible under the Art. 4 (c) TECSC and the aforementioned decision on the ground that the Commission would otherwise be unable to pursue a breach of the notification, a recourse to the Art. 88 TECSC sanction power being possible only in the event of a Member State's failure to comply with a final decision. To justify this finding, the Court states that Art. 39 TECSC imposes no such restriction on the Court's power to grant interim measures, that the provisions concerning the institution of proceedings must be interpreted widely in order to safeguard the legal protection of individuals (cases Plaumann and CFDT ), and that, finally, the unavailablity of interim measures in such a case would be incompatible with the general EC law principle which gives individuals a right to complete and effective judicial protection without any essential lacuna (cases Johnston , UNECTEF , Factortame and Zuckerfabrik ). That fundamental principle, the Court concludes, could not be called into question by the fact that the Commission may, on its own restrictive interpretation, have insufficient power to ensure compliance with the procedural rules laid down by Decision No 3655/91.
While a suspension would thus be possible in principle, the factual and legal background in the present case needs to be examined before such a measure can be taken. The first crucial point is that the FRG has, by not notifying the loans in question to the Commission, gravely violated the system of preventive supervision of any financial transfer (cases 31/77 R and 53/77 R ), irrespective of whether it may be characterised as state aid, for the benefit of steel undertakings as stipulated in Art. 6 of the quoted Decision. The purpose of these strict rules is to enable, under the Commission's control, aid to be granted to the industry, while due regard to the sensitivity of that sector may be paid and the general rules of the ECSC Treaty observed. In such circumstances, the Court finds, any suspension of a Commission decision declaring unlawful aid to be incompatible with the common market and requiring its repayment should be contemplated with circumspection.
Next, the Court points to the high threshold conditions for the suspension of a Commission decision and its limited power of judicial scrutiny in the present context: Under Art. 83 (2) or the Rules of Procedure, the suspension of the operation of a decision by an institution can only be ordered if the plaintiff shows the urgency of the circumstances and establishes, in fact and in law, a prima facie case. According to Art. 33 (1), second sentence TECSC, the Court may not, in an anullment action, examine the evaluation of the situation, resulting from economic facts or circumstances, in the light of which the Commission took its decisions or made its recommendations, save where the Commission is alleged to have misused its powers or to have manifestly failed to observe the provisions of the Treaty. The term "manifest" presupposes that the failure to observe legal provisions must be due to an obvious error in the evaluation of the relevant situation.
Viewed under these premises, the Court finds that the situation is not such as to allow for the grant of the requested order. The central points of the parties's detailed submission and the Court's complex reasoning may be summarised as follows: The fact that the immediate implementation of the Commission decision ordering the recovery may lead to the winding up or liquidation of the company and have harmful social consequences is not sufficient. Rather, according to the Court, the evidence presented and evaluated with a sufficient degree of diligence by the Commission is not sufficient to reasonably raise doubts as to the validity of the decision. First, the applicant has not shown why the decision is incompatible with the essential criteria laid down in the Court's case law for distinguishing between an allowed shareholder's loan and prohibited State aid (cases 40/85 , C-303/88 , C-305/89 , and joined caes C-278/92, C-279/92 and C-280/92 ). Next, the principle of proportionality cannot be relied upon, as requested by the applicant, to restrict the Commission's decision to an amendment to the terms of the loan. For the element of State aid does not lie in the preferential interest rates granted, but in the value of the capital as such. Finally, the principle of cooperation, as invoked by the applicant, according to which the Commission ought to have awaited the outcome of the actions for annulment brought against the earlier Commision decision, has not been violated, particularly since the applicant was guilty of a gross breach by not notifiying the loans to the Commission. For all these reasons, the harm which might be incurred would be merely the unavoidable consequence of the application of the strict rules concerning aid in the steel sector, whose purpose is primarily to prevent the effects particularly harmful to competition and so to the survival of successful companies by artificially maintaining undertakings which could not exist under normal market conditions.

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