AKER WARNOW WERFT GMBH V COMMISSION OF THE EUROPEAN COMMUNITIES

Case T-68/05, EC, Court of First Instance (First Chamber), 10 March 2009

State aid – Shipbuilding - Former German Democratic Republic – State aid paid to cover losses from shipbuilding contracts – Competition aid – Whether excess payment – Annulment of Commission Decision on recovery of State aid

In October 1992, an East German shipyard, later renamed Aker Warnow Waerft, had been sold by the Treuhandanstalt to the Norwegian group Kvaerner. In the same month, the purchase was notified to the Commission along with a plan for State aid, payable in instalments, to enable restructuring. By a Decision in 2005, the Commission concluded that there had been excess payment of State aid and that there should be recovery of DEM25,999,000. By the present action, Kvaerner and Aker sought the annulment of that Decision. They raised several grounds, only one of which was dealt with by the Court, namely “the second part of the second plea”, which was that the amount of DEM62,500,000 received by Aker as compensation for competition aid not received should not have been included in the calculation of the total amount of aid granted to cover contract losses. The Court annulled the Decision in question, holding that competition aid was an operating aid, for which Aker was free to determine the use, and furthermore that it had not been established that aid actually had been earmarked to cover contract losses. Therefore, the Commission had committed a manifest error in finding that the competition aid had to be accounted under aid granted to Aker to cover contract losses alone.