C-457/00

OPINION OF MR JACOBS — CASE C-457/00

OPINION OF ADVOCATE GENERAL JACOBS delivered on 19 September 2002 1

1. In the present case Belgium seeks the Verlipack incompatible with the com- annulment of Commission Decision mon market; and 2001/856/EC of 4 October 2000 concern- ing State aid to Verlipack 2('the contested decision' or 'the decision').

2. In that decision the Commission in essence: (3) orders the recovery of that aid from the recipient.

(1) revokes its earlier decision of 16 September 1998 ('the 1998 decision')3 not to raise objections in respect of BEF 350 million of capital injected by Belgium into Verlipack, since that decision was based on incor- rect information;

3. In the 1998 decision the Commission had found that the capital injection of BEF 350 million was compatible with the pri- vate investor principle essentially because it was concomitant with a capital injection of (2) declares State aid totalling about BEF BEF 515 million by a private investor. 607 million granted by Belgium to Subsequently however it discovered that the Belgian authorities had granted the private investor in question, prior to its 1 — Original language: English. capital injection, two loans totalling BEF 2 — OJ 2001 L 320, p. 28. 500 million which were to be used for its 3 — OJ 1999 C 29, p. 13. investment in Verlipack.

8. In December 1996 the Walloon Region transferred its minority holdings in the two Walloon plants, valued at BEF 114 million, to Beaulieu. Thus Verlipack's Walloon plants temporarily became companies with- 5. The Belgian authorities had intervened out a public shareholding. for the first time in 1985 in favour of Verlipack: the limited companies Verlipack Ghlin, Verlipack Jumet and Verlipack Mol were set up with the Belgian authorities holding a 49% stake approved by the Commission. In 1989 the Walloon Region acquired the shares held by the Belgian authorities in Verlipack Ghlin and Verlip- 9. On 24 January 1997 Beaulieu created ack Jumet, whilst the corresponding shares the holding company Verlipack I and on in Verlipack Mol were transferred to the 11 April 1997 Heye acquired a stake in that Flemish Region. Following a number of holding company such that Beaulieu and capital increases by the private majority Heye each had a BEF 515.25 million shareholder, the Beaulieu group ('Beau- shareholding (total capital of BEF 1 030.5 lieu'), the public shareholding was grad- million). Heye had however one share more ually reduced. than Beaulieu to give it the controlling vote.

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12. On the basis of information formally 14. By letter of 14 December 1998 the transmitted by Belgium by letters of Commission requested information from 10 April 1997, 4 September 1997, 10 April 1998, 18 June 1998 and 19 July 1998 and following an examination of the 4 — See note 3 above. measures under Article 87 EC, the Com- 5 — Bulletin EC 9-1984, p. 93.

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the Belgian authorities on the alleged grant fixed rate of 5.10% plus a 1% risk of two loans to Heye and informed the premium. The loan agreement contained a authorities that it might have to revoke its conditional loan write-off clause. Under decision of 16 September 1998 since that that clause, if Verlipack II and the three decision might have been based on incor- operating companies, SA Verlipack Jumet, rect information. SA Verlipack Ghlin and SA Verlipack Mol, were to be declared insolvent, the amounts owed by Heye as from the date of that declaration no longer had to be repaid to SRIW.

15. Despite Heye's involvement Verlipack continued to incur dramatic losses. On 7 January 1999 the closure of the Mol plant and the application for a scheme of arrangement ('concordat') for the Jumet and Ghlin plants were announced. On 18. The second loan was granted one day 11 January 1999 Verlipack Mol was later on 28 March 1997 for ten years at the declared insolvent. On 18 January 1999 six-month BIBOR rate in force on the first six further companies of the Verlipack working day of each half-year for which it group, namely Verlipack Jumet, Verlipack was due plus 1.5%. It contained a three- Ghlin, Verlipack Belgium, Verlipack Engin- year repayment holiday from the date of eering, Verlimo and Imcourlease were completion so that repayments were to declared insolvent. commence only as of 28 March 2000.

23. The Commission decided on 19 May 1999 to initiate the procedure for the revocation of its 1998 decision under Article 9 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of 21. Under the immediate repayment Article 93 of the EC Treaty 6 and informed clauses SRIW could demand the immediate Belgium of its decision to open the pro- repayment of the loans in the event of, inter cedure provided for in Article 88(2) EC by alia, 'significant inaccuracy of the infor- letter of 1 June 1999. 7 mation provided; failure, whether or not partial, of [Heye] to satisfy a legal or contractual obligation relating to the loan; failure to implement by 31 July 1997 at the latest the allocation clause (financing oper- ations) or if at least 80% of the investments planned have not been carried out by 24. Following comments from Belgium on 31 December 2000 at the latest...; the the initiation of the procedure, comments voluntary liquidation of SA Verlipack from two complainants and Heye on the Jumet, SA Verlipack Ghlin and SA Verlip- aid and observations from Belgium con- ack Mol...'. cerning those latter comments the Com- mission on 4 October 2000 adopted the contested decision. 8

25. In that decision the Commission found 22. According to the Belgian Government, that following the insolvency in early January 1998 of several companies of the Verlipack group, SRIW terminated the two loan agreements by letter of 20 January on the basis of the immediate repayment clauses. SRIW apparently believed that the infor- mation provided by Heye was inaccurate — the capital injected by the Walloon and that Heye had failed to comply with its Region in April 1997 into Verlipack obligations under the loan agreements. SRIW therefore initiated repayment pro- 6 — OJ 1999 L 83, p. 1. ceedings before courts in Liège (Belgium) 7 — OJ 1999 C 288, p. 24. and in Bückeburg (Germany). 8 — Cited in note 2.

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26, On the basis of those findings the ack is incompatible with the common Commission decided: market.

'Article 1 Article 4

The Commission decision of 16 September The State aid totalling EUR 6 197 338 (BEF 1998 not to raise objections in respect of 250 million) granted by Belgium to Verlip- the capital contributed to Verlipack is ack contains an element of State aid hereby revoked under Article 9 of Regu- amounting to EUR 176 624 (BEF 7.125 lation (EC) No 659/1999 of 22 March million) that is incompatible with the common market. 1999 laying down detailed rules for the application of Article 93 of the EC Treaty.

Article 5 Article 2

30. Belgium contends that the Commission misapplied the concept of State aid in particular in paragraphs 100, 112 and (2) the Commission infringed its duty to 141 of the contested decision by regarding give reasons by making erroneous the two loans granted by SRIW to Heye statements and by not giving reasons and the Walloon Region's capital injection for some of its conclusions. into Verlipack as one global aid package in favour of Verlipack. It argues that the loans and the capital injection were granted by two distinct entities (SRIW and the Wal- loon Region) to two distinct recipients (Heye and Verlipack). Each of those inter- 28. Before examining those pleas I note ventions should thus have been considered that Belgium does not contest that both the separately in applying the test of whether capital injection granted by the Walloon State aid was involved. Region and the loans granted by SRIW were 'granted by the State or through State resources' within the meaning of Article 87(1) EC. Nor does Belgium chal- lenge either the findings on the non-appli- cability of Article 87(2) and (3) EC (para- 31. That argument must be rejected. The graphs 119 to 134 of the decision) or the contested decision must be read in the light order to recover the aid (Article 5 of the of the Commission guidelines on public operative part). authorities' holdings in company capital 9 and of Article 9 of R e g u l a t i o n No 659/1999.

First part of the first plea: the two loans 32. In the guidelines the Commission dis- and the capital injection should have been tinguishes inter alia the following cases: analysed not as one global aid package but separately

(iii) where the public holding in a company is to be increased, provided the capital injected... goes together with the injection of capital by a private shareholder; the private investor's holding must have real 34. In its 1998 decision the Commission economic significance;... found on the basis of the information at its disposal that the Walloon Region's capital injection of BEF 350 million was compat- ible with the private investor principle since a private investor (Heye) was at the same time acquiring a majority stake. According to that decision the parallel involvement of Heye also indicated prospects of future 3.4. Some acquisitions may not fall within profitability and viability for Verlipack. the categories indicated in sections 3.2.... so that it cannot be decided from the outset whether they do or do not constitute State aid. In certain circumstances, however, there is a presumption that there is indeed State aid. This is the case where:

35. The Commission thus relied on the two criteria set out in Section 3.2. (iii) of the guidelines on public authorities' holdings in company capital, namely (a) the capital injected by public authorities must 'go together' with the injection of capital by a (i) the authorities' intervention takes the private investor and (b) the private inves- form of acquisition of a holding combined tor's holding must have 'real economic with other types of interventions which significance'. Since Heye had injected fresh need to be notified....' capital of BEF 515 million at the same time

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37. The second point made in the decision is that the 1998 decision was based on 39. Fourth, in the light of those new facts incorrect information which was a deter- there was a situation falling under Section mining factor for its initially positive atti- 3.4. (i) of the guidelines, namely in that the tude. The Commission had assumed that Walloon authorities' intervention took the the private investor Heye had taken similar form of acquisition of a holding 'combined or even greater risks than the Walloon with other interventions' (the two loans) Region when it injected capital of BEF 515 which should have been notified under million into Verlipack. In reality, however, Article 88(3) EC. The loans and the capital Wallonia (SRIW) had granted Heye prior injection were made by two institutions to the latter's capital injection two loans (Walloon Region and SRIW) which were totalling BEF 500 million to finance its closely related, they were made more or less stake in Verlipack. Through the loan write- simultaneously and, most importantly, it off clause SRIW had moreover assumed followed from the allocation clauses in the 50% of the risk of Heye's capital injection two loan agreements that both served the

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same purpose, namely to allow the restruc- First submission: the assumption in para- turing of Verlipack which found itself in graph 99 of the decision that the two loans financial difficulties. constitute State aid infringes Articles 87 and 295 EC

40. In my view the Commission thus cor- 43. Belgium challenges a sentence in para- rectly applied its guidelines on public auth- graph 99 of the decision where the Com- orities' holdings in company capital and mission states: 'It can be assumed that the Article 9 of Regulation No 659/1999 and in two loans granted by SRIW to Heye to that context rightly regarded the loans to finance the latter's stake in Verlipack con- Heye and the capital injection into Verlip- stitute aid...' ack as two components of a single package.

46. The submission that the assumption in 48. A first problem with that line of paragraph 99 of the decision infringes argument is that Belgium does not chal- Articles 87 and 295 EC must therefore be lenge any specific passage of the contested rejected. decision, nor does it indicate any specific infringement of a rule of Community law.

Second submission: SRIW acted like a private investor when it granted the loans to Heye 49. A second more fundamental problem is that Belgium regards the two loans in isolation, whilst the loans must be analysed together with the capital injection (see above).

47. Belgium argues that SRIW acted like a true private investor when it granted the two loans to Heye. In its view, at that time several elements confirmed both the credi- bility of Heye and the feasibility of the 50. Third, it must be recalled that the planned restructuring of Verlipack. As debenture loan contained a loan write-off regards the relations with Heye, it was clause. Moreover, both loans contained Heye who had requested the loans, SRIW financial allocation clauses in favour of had stressed in a letter to Heye that its role Verlipack and interest and repayment con- was to grant financing for industrial or ditions advantageous to Heye. Therefore commercial activities and not to grant the issue is not so much the solvency of the subsidies, and SRIW had access to detailed borrower Heye, but whether a private information about the competence, pros- investor with the Walloon authorities'

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— taking into consideration the dif- ficulties of obtaining the product 53. Finally, in the course of the negoti- quality required, it is feared that the ations of the loans SRIW stated in a letter business plan established by Heye is to Heye of 21 November 1996 that a too optimistic; '50/50 division' seemed to be a good

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compromise and that Heye should 'cover 56. The submission that SRIW acted like a 50% of the risk that Heye regards as private investor when it granted the loans minor' since Heye itself had previously to Heye must therefore be rejected. indicated that 'if Heye were to join Verlip- ack that company would no longer be a high risk company'. It follows that Heye had asked SRIW to cover the risk of its investments in Verlipack since it regarded that company as a risk company; SRIW however wanted to cover only 50% of that risk since Heye's arrival would reduce the risks associated with Verlipack. Third submission: the Commission's find- ing that Verlipack was the real beneficiary of the aid contained in the loans is wrong

54. In view of Heye's prosperity and sol- vency it is thus indeed very likely that 'the sole reason why [Heye] called on a public financial institution to finance its entry into Verlipack was to offset the risk to a maxi- 57. Belgium contends that the Commission mum through the terms of the loan agree- erred in law and committed several errors ments concluded with SRIW' (paragraph of assessment when it regarded Verlipack 106 of the decision). as the real beneficiary of the aid contained in the two loans granted by SRIW to Heye.

59. That argument must be rejected. Bel- had a legitimate interest in borrowing the gium accepts that under the Treaty 11 and funds necessary for the investment in the Court's case-law12 State aid may be Verlipack from SRIW and SRIW had a granted indirectly via private third parties. legitimate interest in seeking financial gains Contrary however to Belgium's submission, from loans to an undertaking investing in it follows from Germany v Commission 13 Wallonia. As regards Heye's capital injec- that indirect State aid does not necessarily tion into Verlipack, the Commission failed require the existence of direct State aid to to recognise that Heye took real risks with the immediate addressee of the measure in its own funds. In exchange for the capital issue. In that case Germany had granted a injection it received shares: if Verlipack had tax concession to investors who acquired become profitable, Heye could have holdings in east German companies. The received dividends. Moreover, if Heye had Court held that the tax concession did not financed the capital injection into Verlip- constitute direct aid to the investors since it ack from its own funds the effect on was a general measure applicable without competition would have been the same. distinction to all economically active per- sons; it none the less constituted indirect aid since it conferred an economic advan- tage on specific undertakings situated in the new Länder. It follows that the question whether Verlipack received State aid is separate and in principle independent from the question whether Heye received State aid. 61. Those arguments must also be rejected.

right to insist on the link between the two must be regarded as the beneficiary of the loans and Heye's capital injection. aid and not Verlipack. In its view, under the Court's case-law 15 the behaviour of an independent and entirely privately owned undertaking cannot be imputable to the State. Heye cannot be regarded as an instrument of the Walloon region since it 63. Moreover, even if Heye received shares was Heye which had asked for the loans. which could have generated dividends, it Heye's obligations under the allocation follows from the loan write-off clause that clauses in the loan agreements are merely Heye did not have to bear in full the contractual and should therefore not be corresponding risk of Verlipack becoming compared in their effects with binding insolvent. The Commission thus rightly instructions given by a State to public noted 'the relative disengagement on the undertakings under its control. That dif- part of Heye at the time of its acquisitions' ference is evidenced by the fact that Heye in Verlipack (paragraph 106 of the did not comply with its obligations under decision) and that 'Heye had not provided the allocation clauses (and thus obliged its own risk capital but funds stemming Belgium to start separate legal proceedings from state resources' (paragraph 101). against Heye). It must also be borne in mind that allocation clauses such as those in issue are to be found in practically all loan agreements. Finally the consequence of regarding Verlipack as the true bene- ficiary of the aid is that it is impossible for 64. Finally, the issue is not whether the Belgium to recover the aid. As a matter of detrimental effects on competition would logic and of Belgian civil law Belgium have been the same if Heye had financed its cannot recover directly from Verlipack capital injection into Verlipack from its funds which it has never transferred to that own funds; the crucial issue is whether undertaking. The Belgian authorities also Heye would have provided any capital at have no means of requiring the private all if SRIW had not granted the loans in undertaking Heye to recover its investment question. In that regard the internal note from Verlipack. summarised above confirms the Commis- sion's doubts whether 'Heye, whose pre- vious relationship with Verlipack was limited to technical assistance, would in fact have taken a financial holding in that company without the public resources that covered almost the whole of its capital contribution' (paragraph 107 of the decision).

70. Furthermore, it may be the case that most loan agreements contain allocation clauses. But, as the Commission rightly 69. As to the second condition of 'imput- notes, normally allocation clauses in loan ability to the State' Belgium appears to start agreements refer to the collateral. A hous- from the premiss that the conduct of ing loan, for example, often provides that undertakings can be imputable to the State the funds must be invested in the house only where there is evidence of a unilateral which serves as the security for the loan. In and binding instruction by the State. First, the present case the purpose of the allo- however, it follows from the recent judg- cation clauses was not to secure the loans ment in France v Commission that in order to establish imputability it is enough to show in the particular case that the public 17 — France v Commission, cited in note 15, paragraph 56 of authorities were involved in the adoption of the judgment. 18 — See for another case in which private undertakings are obliged under a contract to act in favour of the real beneficiaries of a measure my Opinion of 30 April 2002 in Case C-126/01 GEMO, not published in the ECR, 16 — See in particular Germany v Commission, cited in note 12. paragraphs 61 to 63.

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to Heye, but to oblige Heye to use the funds 74. Belgium challenges, first, the last sen- granted by SRIW for the restructuring of tence in paragraph 115 of the decision Verlipack. where the Commission refers to the loan write-off clause in the debenture loan agreement and states:

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sion correctly was a determining factor for 79. In that regard Belgium contends that it the latter's 1998 decision. When the Bel- has provided clear evidence of Heye's gian authorities transmitted the infor- excellent financial situation and its credi- mation, the Commission revoked its 1998 tworthiness. Belgium refers to a letter of decision (Article 1 of the operative part of 9 December 1996 in which the Dresdner the contested decision) and reassessed the Bank stated: situation of Verlipack in spring 1997 in the light of the new information at its disposal. On the basis of that reassessment the Commission correctly concluded that Ver- lipack's operating results before the arrival of Heye showed Verlipack's financial dif- ficulties. 'The financial situation of... Heye is abso- lutely sound... We grant credit facilities in a two-digit million DEM range without col- laterals...'

BELGIUM v COMMISSION

It follows from the internal note summa- 83. The submission that the debenture loan rised above that when SRIW granted the of BEF 250 million does not contain State debenture loan to Heye the financial situ- aid at all or should at least not be regarded ation of Verlipack was poor, a fact of as State aid in its entirety must accordingly which SRIW was fully aware. The Com- be rejected. mission could thus validly find that by virtue of the loan write-off clause and Verlipack's poor financial situation there was a substantial risk that Heye would not repay the debenture loan and that in normal circumstances no lender would have taken such a risk. Since moreover Fifth submission: the second loan did not Verlipack's insolvency was not unlikely the contain State aid Commission could also validly regard the debenture loan in its entirety as State aid.

84. Belgium challenges the Commission's use in paragraph 117 of the contested decision of the standard reference rate applicable in Belgium of 7.21% as a normal market rate by reference to which the Commission allegedly assessed the aid element contained in the second loan.

factual elements instead of assessing the 90. In doing so it referred first to the loan more realistically according to the standard reference rate of 7.21% appli- normal market investor test. 19 cable in Belgium when the loans were granted. In that regard it will be noted that the Commission regularly publishes refer- ence rates which are used to calculate the aid element resulting from interest subsidy schemes for loans. Those rates are sup- posed to reflect the average level of interest rates charged, in the various Member States, on medium and long-term loans 87. Third, the second loan actually com- (five to ten years) backed by normal plied with the market investor principle: security. The method of calculating the the interest rate fixed in the loan agreement reference rate applicable when the loan in was close to both the interest rates used at question was granted on 28 March 1997 that time by two private Belgian banks; was the one set out in a Commission notice moreover, the fact that the Dresdner Bank of 10 August 1996. 20 That method was granted Heye 'credit facilities in a two-digit based on the rate of yield on state bonds on million DEM range without collaterals' the secondary market multiplied by a shows that SRIW behaved like a normal specific premium for each Member State private investor when it did not require any and resulted for Belgium for March 1997 in security. a standard reference rate of 7.21%.

88. Those arguments must be rejected.

91. It is true that in August 1997 on the basis of a study carried out for the Com- mission by KPMG the Commission replaced the former method of establishing the reference rate and started to use instead one based on the five-year interbank swap 89. As to Belgium's third argument, which rate, plus a premium. It is also true that the I will address first, in paragraph 117 of the application of that new method would have contested decision the Commission com- resulted in a reference rate lower than pared the normal market conditions with 7.21%. That new method applied however those accompanying the loan in question. only from 1 August 1997 onwards. 21 In the

contested decision the Commission there- 94. As regards that last point the fact the fore rightly referred to the standard refer- Dresdner Bank granted Heye 'credit facil- ence rate applicable in March 1997, since ities in a two-digit million DEM range under the market investor principle a loan without collaterals' is not directly relevant. must be evaluated from the point of view of According to the letter referred to by the lender at the moment when the loan is Belgium Dresdner Bank was Heye's 'main approved and since under the principle of banking connection', Dresdner Bank had equal treatment all loans granted at the been maintaining excellent business same period of time must be assessed relations with Heye 'for decades' and a according to the same criteria. considerable turnover had been conducted through Dresdner Bank. Dresdner Bank thus had a very special relationship with Heye which cannot serve as a valid point of reference for the relations between other 'normal' private financial institutions and Heye. In that regard the Commission rightly doubts whether an 'ordinary' pri- 92. The standard reference rate of 7.21% vate financial institution would have was however not the only element which granted a loan of BEF 250 million without the Commission took into account in its any security. comparison between the normal market conditions and the conditions accompany- ing the loan. According to paragraph 117 of the contested decision the Commission also took into account the 10-year duration of the loan, the three year grace period, the extent to which the interest subsidy was variable and the fact that Heye was not 95. Since the Commission took into required to give any collateral for the loan account not only the interest rate but also from SRIW. other features of the second loan, Belgium's arguments about allegedly similar interest rates in loans granted by two private banks must also fail. In my view under the private investor principle the Commission is fully entitled to regard even a loan with an entirely 'normal' interest rate as State aid 93. All those features are clearly relevant where that loan is characterised by other for determining whether the loan contained unusual features such as the absence of any State aid. The relatively long duration of collateral. the loan would under normal market con- ditions have to be remunerated by a higher interest rate. The three-year grace period and the variability of the interest rate agreed are favourable conditions which Heye would not easily have obtained from a normal private lender. The most unusual feature of the loan is perhaps the fact that 96. In the light of the foregoing I consider SRIW did not require any collateral. that by taking all the relevant features of

103. Under that head Belgium does not discuss the features of the Walloon Region's capital injection of BEF 350 million but essentially repeats the argu- ments summarised above 23 about the dif- 99. It follows that all five submissions challenging the classification of the two loans granted by SRIW to Heye as State aid 22 — See paragraphs 31 to 41. must be rejected. 23 — See paragraph 60.

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ferences between the two loans to Heye and Heye to Verlipack and (ii) that in view of Heye's capital injection into Verlipack. For the loan write-off clause Heye did not have the reasons given above 24 those arguments to bear the full risk of its investment. must be rejected.

106. For the reasons given above 26 those arguments must be rejected.

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which of the companies of the group are 113. Belgium argues secondly that Article 4 meant. The implementation of Article 5 of of the operative part of the contested the contested decision, on the recovery of decision contains an internal contradiction the aid, is therefore impossible. since it provides that '[t]he State aid totalling... BEF 250 million... contains an element of State aid amounting to... BEF 7 125 million...'.

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observations by Belgium and the other issue. In its view an infringement of the interested parties and thereby infringed its duty to state reasons constitutes a matter of duty to state reasons. public interest which may be raised at any moment by one of the parties or by the Court. 28

117. In my view, it is not correct that the contested decision is an exact replica of the decision to initiate the procedure. More- over, in paragraphs 36 to 97 the Commis- sion has summarised in a detailed and objective way all the arguments submitted by Belgium and the other interested parties. Finally many statements in paragraphs 98 121. In my view in the present case it is not to 140 of the decision which contain the necessary to decide whether the Court may Commission's assessment of the aid are or must raise the alleged infringement of evidently formulated in order to respond to the duty to state reasons of its own arguments made by Belgium and other motion, 29 since the Commission clearly interested parties in the course of the complied with its duty to state reasons. procedure leading to the contested decision.

118. The third argument must accordingly be rejected.

122. As regards the two conditions of effect on trade between Member States and dis- tortion of competition in Article 87(1) EC 119. Belgium argues fourthly that the it is settled case-law (i) that the very Commission failed to explain in the con- circumstances in which the aid has been tested decision why the aid in question granted may show that it is liable to affect 'distorts or threatens to distort compe- trade between Member States and to distort tition' and 'affects trade between Member or threaten to distort competition and (ii) States' within the meaning of Article 87(1) that in order to comply with its duty to EC. state reasons the Commission must set out those circumstances. 30

123. In paragraph 130 of the contested trend in prices continued as a result of decision the Commission complied with competition from other packaging products that obligation where it stated as follows: (PET, cardboard and cans) and the collapse of the Russian market. Given the economic situation, the investment in Verlipack had the effect of increasing its production. Any aid to that firm was thus liable to affect 'Verlipack operated in the market for Verlipack's position on the market with hollow container glass, of which its share regard to its competitors in the EU.' was 20% in Belgium and 2% in the European Union. With a market share of 13%, the container glass industry takes third place in the packaging sector, after plastic with 35% and paper-board, with 32%. The period 1996 to 1998, when 124. Belgium's fourth argument about the Belgium granted the aid to Verlipack, was alleged failure to explain why the aid affected by a fall in prices which, according affected trade between Member States and to Heye and the sector in general, was not distorted competition must accordingly foreseeable in 1997. The rapid downward also be rejected.

Conclusion

125. Accordingly the Court should in my opinion:

(1) dismiss the application;

(2) order the Kingdom of Belgium to pay the costs.

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