8.7.2015   

EN

Official Journal of the European Union

L 179/54

(1)

By letter dated 8 October 2007, registered at the Commission on the same day, the German authorities, pursuant to Article 108(3) of the TFEU, notified under the Guidelines on national regional aid for 2007-2013 (1) (hereinafter: RAG) their intention to grant aid in favour of Propapier PM2 GmbH (see below point 2.2, The beneficiary) for a large investment project in Eisenhüttenstadt, Brandenburg-Nordost, Germany. The proposed aid was registered with the reference N 582/07.

(2)

After the submission of additional information, the receipt of several complaints (2), and a meeting with the German authorities and representatives of the beneficiary, the Commission adopted, on 2 April 2008, a decision (3) not to raise objections to the notified aid measure.

(3)

After the adoption of the Commission decision on 2 April 2008, the Commission received further submissions from complainants contesting the assessment of the Commission and the adoption of a decision not to raise objections to the aid measure. Smurfit Kappa Group plc (hereinafter: ‘Smurfit Kappa’) also submitted information on 24 June 2008, alleging that additional aid had been granted to Propapier PM2 GmbH & Co. KG in the form of infrastructure aid, and asked the Commission to revoke its decision. The Commission opened a separate investigation registered as State aid case SA.36147 (C 30/10) (4), in order to assess the latter allegations.

(4)

On 5 August 2008, Smurfit Kappa brought an action for annulment of the Commission decision of 2 April 2008 before the General Court.

(5)

By letter dated 7 November 2008, Germany informed the Commission of the implementation of the aided investment. By letters dated 22 December 2008 and 13 January 2010, it informed the Commission of certain changes to the notified project.

(6)

By its judgment of 10 July 2012, T-304/08, Smurfit Kappa Group plc v Commission, the General Court annulled the abovementioned Commission decision of 2 April 2008 (hereinafter: ‘the annulled decision’). Therefore, the Commission was required to re-assess the aid measure and take a new decision placing itself in the situation which existed on 2 April 2008 (5).

(7)

On 14 August 2012, a meeting took place between the Commission services, the German authorities and representatives of the beneficiary company. By letters of 24 August 2012 and 5 February 2013, the German authorities submitted comments.

(8)

It has to be noted that the granting of the aid by Germany was subject to the approval of the Commission. Germany started to pay out the aid only after the adoption by the Commission, on 2 April 2008, of the annulled decision. Following the annulment by the Court, however, it must be considered that the annulled Commission decision has never existed and that Germany has not been duly authorised to grant the proposed aid. The Commission has accordingly transferred the case to the register of non-notified aid under the reference SA.23827 (2012/NN-46).

(9)

By letter dated 15 May 2013, the Commission informed Germany of its decision to initiate the procedure laid down in Article 108(2) of the TFEU (hereinafter ‘the opening decision’) in respect of the regional aid granted to Propapier PM2 GmbH. The Commission decision to initiate the procedure was published in the Official Journal of the European Union  (6) on 8 August 2013. Third parties were invited to submit their comments.

(10)

Germany submitted comments by letter dated 15 July 2013 (2013/073407).

(11)

By email dated 20 September 2013 (2013/092832) and letter dated 20 November 2013 (2013/113552), the Commission requested further information, which was provided by Germany by letters dated 16 October 2013 (2013/102801), 9 December 2013 (2013/123872), and 21 January 2014 (2014/007118).

(12)

Smurfit Kappa submitted, as interested third party, comments by letter dated 6 September 2013 (2013/090228) (these comments were forwarded to Germany by letter dated 13 September 2013 (2013/091012)), announcing potential further comments. By letter dated 30 September 2013 (2013/095929) the Commission invited Smurfit Kappa to submit its further comments by 30 October 2013. By email dated 30 October 2013 (2013/107610) Smurfit Kappa declared not to have additional comments, but asked for information about the procedure. The Commission reacted to this by letter dated 29 November 2013 (2013/119741). Germany reacted on the comments of Smurfit Kappa by letter dated 14 October 2013 (2013/101451).

(13)

By letters dated 30 September 2013 (2013/095932, 2013/095939 2013/095941, 2013/095942), the Commission informed the former complainants the Swedish and Finnish Forest Industry Federations, the Koninklijke Vereniging van Nederlandse Papier- en Kartonfabrieken and Procelpac — Groupement français des fabricants de papiers et cartons d’emballage à base de cellulose, which had intervened in the preliminary examination before the adoption of the annulled decision (see recital 2), about the opening of the formal investigation and invited them to submit their comments. None of these complainants submitted comments.

(14)

Germany intended to promote regional development by providing regional investment aid to Propapier PM2 GmbH & Co. KG for the setting up of a paper production plant in Eisenhüttenstadt, Brandenburg-Nordost, an assisted area pursuant to Article 107(3)(a) TFEU with a regional aid ceiling of 30 % gross grant equivalent (GGE) under the regional aid map of Germany for the applicable period 1 January 2007—31 December 2013 (7).

(15)

The beneficiary of the aid identified in the annulled decision was Propapier PM2 GmbH & Co. KG, a large enterprise belonging to the group headed by Progroup AG (hereinafter: Progroup).

(16)

The corporate relationship between the aid recipient and the group was described as follows: […] (8) % of the capital of Propapier PM2 GmbH & Co. KG is held by Propapier PM2 Beteiligungs GmbH in its capacity as a member of the commercial partnership with unlimited liability. Propapier PM2 Beteiligungs GmbH is owned […] % by Propapier Papiererzeugung GmbH and […] % by Mr Jürgen Heindl. The sole owner of Propapier Papiererzeugung GmbH was Progroup, in which Mr Jürgen Heindl held […] % of the shares through JH-Holding GmbH. The remaining […] % of the shares in Progroup AG were distributed as follows: two shareholders each had a holding of […] % and a further shareholder had a share of […] %. None of these shareholders had any special voting rights.

(17)

Progroup produces and sells corrugated case material and corrugated board through its subsidiaries. In 2007, at the time of the notification, corrugated board was produced in plants in Europe by Prowell GmbH & Co. KG and its subsidiaries, i.e. Prowell SA in France, Prowell s r.o. in the Czech Republic; at the end of 2008, Prowell Sp. z.o.o. started production in Poland. Corrugated case material was being produced by Propapier Papiererzeugung GmbH. The other companies belonging to Progroup offer services in connection with the sale of corrugated board.

(18)

As originally notified in 2007, the investment project included the setting up of a power plant supplying the new paper mill. The core part of the investment project, i.e. the setting up of the paper mill, was to be carried out and operated by Propapier PM2 GmbH & Co. KG. The power plant providing steam and energy for the production process of the paper mill, on the other hand, was to be set up and financed by Propower GmbH (hereinafter: Propower), a company belonging to the same group and holding the remaining […] % stake in Propapier PM2 GmbH & Co. KG. A leasing agreement between the parties was to convey the right to use the power plant to Propapier PM2 GmbH & Co. KG.

(19)

Germany explained that, under German tax law, business assets (‘Wirtschaftsgüter’) forming part of the special business assets (the so-called ‘Sonderbetriebsvermögen’) of a partner (in this case, Propower) of a commercial partnership (in this case, Propapier PM2 GmbH & Co. KG) are allocated for tax purposes to the assets of the commercial partnership and not to those of the member, even if that member is the civil law owner of the asset. This is a consequence of the tax transparency of commercial partnerships. Consequently, Propapier PM2 GmbH & Co. KG would be able to claim the aid for the whole investment project, including for the construction of the power plant to be operated by Propower.

(20)

After the adoption of the annulled decision, Germany informed the Commission that the power plant was excluded from the scope of the aided investment project, and that no aid was requested or would be granted for the realisation of the power plant. Propower was to be sold to EnBW Energy Solutions GmbH (ESG), a daughter company of EnBW Energie Baden-Württemberg AG.

(21)

Because under German corporate law a commercial partnership (‘Kommanditgesellschaft’) must consist of at least two members, one of which with limited liability, Propapier PM2 GmbH & Co. KG was dissolved following the stepping out of Propower. Its other member, Propapier PM2 Beteiligungs GmbH, was transformed from an investment company into an operational company and renamed as Propapier PM2 GmbH (hereinafter: Propapier), and became the beneficiary of the aid measure.

(22)

Germany informed that Propapier Papiererzeugung GmbH now operates under the name Propapier PM1 GmbH and holds all the shares of Propapier PM2 GmbH.

(23)

Corrugated case material (hereinafter: CCM), also called containerboard, is paper manufactured for the production of corrugated board. The term encompasses both linerboard and fluting. The liner constitutes a flat inner or outer layer whereas the fluting is the undulated layer. CCM is made out of natural wood or recycled fibres. Liners made out of wood (also called virgin) fibres are called kraftliners, whereas liners made out of recycled fibres are called testliners. Flutings made out of virgin fibres are called SC flutings and those made out of recycled fibres are called WB flutings. Recycled CCM (RCCM) encompasses all CCM made of recycled fibres, i.e. testliners and WB flutings. Figure 1 below schematically represents the different types of CCM.

Figure 1