C-301/96
ECLI:EU:C:2002:306
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GERMANY v COMMISSION
OPINION OF ADVOCATE GENERAL MISCHO delivered on 28 May 2002 1
1. In an action brought on 16 September 4. The applicants appealed against the 1996 the Federal Republic of Germany is judgment of the Court of First Instance. claiming that the Court should annul Their appeals were registered under case Commission Decision 96/666/EC of numbers C-57/00 P and C-61/00 P. 26 June 1996 concerning aid granted by Germany to the Volkswagen Group for works in Mosel and Chemnitz 2 (here- inafter 'the contested decision').
5. The German Government intervened in support of the applicants in Cases T-132/96 and T-143/96 and in Cases C-57/00 P and C-61/00 P, and all but two of the pleas 2. By order of 4 February 1997 the Court relied upon in the present case are identical stayed the present proceedings because the to the pleas raised, first, before the Court of relief sought is the same as that sought, First Instance and then on appeal. firstly, by Freistaat Sachsen (Free State of Saxony) and, secondly, by Volkswagen AG and Volkswagen Sachsen GmbH (here- inafter 'the applicants') in Cases T-132/96 and T-143/96.
6. I refer, with regard to those identical pleas, to my Opinion of today's date in Cases C-57/00 P and C-61/00 P, which shows that I consider them to be 3. Those cases gave rise to the judgment of unfounded. the Court of First Instance of the European Communities in Freistaat Sachsen and Others v Commission 3 (hereinafter 'the judgment of the Court of First Instance'), dismissing the claims made by the appli- cants. 7. The German Government also bases its 1 — Original language: French. case on a plea which, in its reply, it calls: 2 — OJ 1996 L 308, p. 46. 'Erroneous finding of fact and excessive 3 — Joined Cases T-132/96 and T-143/96 [1999] ECR II-3663. review of aid by the Commission', but
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which in reality is composed of two separ- 11. It follows from my aforementioned ate parts. Opinion that, in my view, the Commission was n o t w r o n g in n o t a p p l y i n g Article 92(2)(c) of the EC Treaty when the contested decision was adopted.
8. The first part, alleging erroneous find- ings of fact by the Commission, is essen- tially identical to the plea dealt with by the Court of First Instance in paragraphs 220 to 257 of its judgment under the heading 'The classification of the paint and final assembly workshops at Mosel II and Chemnitz II as "extension investment'". 12. I therefore propose that the second part of the plea — and hence the plea in its entirety — should be rejected.
9. As those paragraphs in the judgment of the Court of First Instance were not disputed in the appeal proceedings I did not have occasion to express my views on this matter in my Opinion in those pro- ceedings. I do, however, completely endorse the detailed analysis undertaken by the Court of First Instance with regard 13. Finally, the German Government relies to this plea and I therefore propose that the on another plea which was not raised first part of the plea relied upon by the before the Court of First Instance, or, German Government should be rejected. consequently, in the appeal proceedings.
10. The part of the plea alleging excessive review of aid by the Commission is founded entirely on the conception that the Commission should have applied Article 92(2)(c) of the EC Treaty (now, 14. According to the German Government, after amendment, Article 87(2)(c) EC). It the contested decision is invalidated by the should therefore have undertaken a more contradictory nature of its reasoning, so limited review than that under Article 92(3) that it infringes Article 190 of the EC of the EC Treaty. Treaty (now Article 253 EC). I - 9924
GERMANY v COMMISSION
15. Specifically, the contradiction, accord- 18. The consideration relating to the exten- ing to the German Government, lies in the sion of existing capacity, however, forms fact that, on the one hand, the Commission part of an assessment by the Commission of considers, in Part III of the grounds of the the nature of the investment, which can be contested decision, that 'on 13 January either 'greenfield' or 'extension' invest- 1993 VW decided to postpone substantial ment. These concepts only concern the parts of its proposed investments' whereas, environment within which the investment on the other hand, it considers in Part XII is made — and particularly the state of that 'the future investment for a new paint development of the site at the time of the and final assembly hall in Mosel II... entry into service of a plant or unit. 4 represents an extension of existing capac- ity'. According to the German Govern- ment, a postponement of the investments means that these were not yet decided, whereas an extension of existing capacity logically presupposes that the investments have already been decided.
19. The fact that an investment is post- poned by a day does not, therefore, prevent it, once it has been made, from constitut- ing, having regard to the state of develop- ment of the site, extension investment.
16. The Commission rightly observes that these two considerations are not in conflict with each other since they are stated in two quite different contexts.
20. I therefore propose that the German Government's plea alleging contradictory reasoning in the contested decision should be rejected. 17. The consideration relating to the post- ponement of investments constitutes a pure finding of fact on the part of the Commis- 4 — See, the findings of the Court of First Instance relating to the sion regarding the timetable of investments concepts of 'greenfield' and 'extension' investment in paragraphs 238 to 257 of its judgment and paragraph 246 decided by Volkswagen. in particular.
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Conclusion
21. In the light of the foregoing, I propose that the Court should:
— dismiss the action brought by the Federal Republic of Germany;
— order the Federal Republic of Germany to pay the costs.
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