Contents
Judgment of the General Court (Fifth Chamber)12 September 2017note(State aid — Regional investment aid — Aid granted by Germany to BMW for a large investment project in Leipzig concerning the production of two models of electric cars (i3 and i8) — Decision declaring the aid partly compatible and partly incompatible with the internal market — Article 107(3)(c) TFEU — Article 108(2) and (3) TFEU — Incentive effect of the aid — Whether the aid is necessary)In Case T‑671/14,Bayerische Motoren Werke AG, established in Munich (Germany), represented by M. Rosenthal, G. Drauz and M. Schütte, lawyers,Freistaat Sachsen (Germany), represented by T. Lübbig and K. Gaßner, lawyers,vEuropean Commission, represented initially by F. Erlbacher, T. Maxian Rusche and R. Sauer, and subsequently by T. Maxian Rusche and R. Sauer, acting as Agents,THE GENERAL COURT (Fifth Chamber),composed of A. Dittrich, President, J. Schwarcz (Rapporteur) and V. Tomljenović, Judges,Registrar: S. Bukšek Tomac, Administrator,having regard to the written part of the procedure and further to the hearing on 8 September 2016,gives the following
Judgment
Background to the dispute
1The applicant, Bayerische Motoren Werke AG, is the parent company of the Bayerische Motoren Werke Group (‘BMW’), whose principal activity is the manufacture of BMW, MINI and Rolls-Royce automobiles and motorcycles.
2On 30 November 2010, pursuant to Article 6(2) of Commission Regulation (EC) No 800/2008 of 6 August 2008 declaring certain categories of aid compatible with the [internal] market in application of Articles [107 and 108 TFEU] (General block exemption Regulation) (OJ 2008 L 214, p. 3), the Federal Republic of Germany notified aid in the nominal amount of EUR 49 million that it intended to grant pursuant to the Investitionszulagengesetz 2010 (Law on investment subsidies) of 7 December 2008, as amended (BGBl. 2008 I, p. 2350) (‘the IZG’), with a view to the construction in Leipzig (Germany) of a production site for the manufacture of the BMW i3 electric car and the i8 hybrid rechargeable car, in accordance with the Guidelines on national regional aid 2007-2013 (OJ 2006 C 54, p. 13) (‘the Guidelines’). The notification indicated investment costs of EUR 392 million (EUR 368.01 million excluding interest) and aid intensity of 12.5%. The actual payment of the aid was made subject to the grant of authorisation by the European Commission.
3After having obtained certain additional information, on 13 July 2011 the Commission decided to open the formal investigation procedure pursuant to Article 108(2) TFEU and subsequently obtained the observations of the Federal Republic of Germany in that regard. On 13 December 2011, the decision entitled ‘State aid — Germany — State aid SA.32009 (11/C) (ex 10/N) — LIP — Aid to BMW Leipzig — Invitation to submit comments pursuant to Article 108(2) of the TFEU’ was published in the Official Journal of the European Union (OJ 2011 C 363, p. 20). By letter of 3 February 2012, the Commission informed the Federal Republic of Germany that it had not received observations from third parties.
4On 17 January 2012, the German authorities amended the initial notification to include additional aid for an additional investment element. This was decided by the aid recipient subsequently to the decision to open the formal investigation procedure. In that context, a number of clarifications were requested from the Federal Republic of Germany, who provided them to the Commission. By letter of 5 August 2013, the Federal Republic of Germany again informed the Commission of other amendments to the aid project relating to the reduction of the aid amount and aid intensity.
5On 9 July 2014, the Commission adopted Decision C(2014) 4531 final on the State aid No SA.32009 (2011/C) (ex 2010/N) (‘the contested decision’), Article 1 of which is worded as follows:‘The State aid which [the Federal Republic of] Germany is planning to implement in favour of [the applicant’s] investment in Leipzig, amounting to EUR 45257273 is compatible with the internal market only if it is limited to an amount of EUR 17 million (in prices of 2009); the exceeding amount (EUR 28257273) is incompatible with the internal market.The aid may accordingly only be implemented up to the amount of EUR 17 million.’
6As regards the reasons for the contested decision, it should be noted as a preliminary point that, in recital 113 thereof, the Commission found that, by notifying the planned aid measure before putting it into effect, the Federal Republic of Germany had complied with its obligation under Article 108(3) TFEU and the individual notification requirement under Article 6(2) of Regulation No 800/2008. Next, in recitals 114 to 123 of that decision, the Commission stated inter alia that it had acted in accordance with the Guidelines, especially section 4.3 thereof, entitled ‘Aid for large investment projects’, and in its Communication from the Commission concerning the criteria for an in-depth assessment of regional aid to large investment projects (OJ 2009 C 223, p. 3). In that context, after establishing that footnote 65 of the Guidelines, relating to the creation of a new product market, was not applicable to the present case, the Commission went on to conduct an assessment in accordance with paragraph 68(a) and (b) of the Guidelines, in order to establish whether the thresholds provided for therein were going to be exceeded, with the result that it has to conduct an in-depth assessment of the notified aid. Thus, in the light of information obtained from the Federal Republic of Germany, it was led to assess whether the aid recipient was going to account for a share of more than 25% on the product market and the geographic market in question. The Commission stated that, if it was not possible to arrive at a conclusive definition of those markets, it would assess whether the aid beneficiary was shown to have a market share exceeding the 25% threshold in at least one plausible relevant market. In any event, the Commission emphasised that a decision to carry out an in-depth assessment in no way prejudged the compatibility of the aid measure with the internal market.
7As regards, more specifically, the determination of the relevant product markets, firstly, the Commission in essence stated in recitals 124 to 127 of the contested decision that it had doubts as to whether electric and hybrid cars were part of the general car market. Secondly, in recitals 128 to 132 of the contested decision, the Commission began by emphasising the particular importance of market analysis in regards to the purely electric vehicle i3 model (Battery Electric Vehicles), given that if that model exceeded the relevant thresholds on at least one of the plausible markets that would suffice to warrant an in-depth assessment, without the Commission having to concern itself with determining the relevant market for the i8 rechargeable hybrid models (Plug-in Hybrid Electric Vehicles). It took the view that it could not conclude with certainty that those cars formed part of the C or D segments of the conventional car market on the basis of the IHS Global Insight classification. Thirdly, in recitals 133 and 134 of the contested decision, the Commission again expressed reservations about whether the relevant market was the combined C and D segments of the electric car market. After finding that the plausible product markets should include the lowest level for which statistics were available, it stated that it had to take account of the particular situation that might arise, namely the dominant position held by the aid recipient in only one of the C or D segments of the electric car market.
8As regards the relevant geographic market, the Commission stated in essence in recitals 135 to 140 of the contested decision that the Federal Republic of Germany’s assertion to the effect that the global market should be recognised as being the relevant market for electric cars was not accompanied by sufficiently detailed information on the factors laid down in Commission Notice on the definition of relevant market for the purposes of Community competition law (OJ 1997 C 372, p. 5). Therefore, and on the basis of the information submitted to it, the Commission inferred therefrom that it could not rule out all doubt that the European Economic Area (EEA) constituted the relevant geographic market for electric or hybrid cars.
9In those circumstances, in recitals 141 to 154 of the contested decision, the Commission analysed the market shares that the applicant, as the aid recipient, would theoretically achieve on certain potential markets, in consequence of which it decided on the applicability of the Communication from the Commission concerning the criteria for an in-depth assessment of regional aid to large investment projects. It should further be noted in that context that, in recital 156 of the contested decision, the Commission found that, as a result of the judgment of 10 July 2012, Smurfit Kappa Group v Commission (T‑304/08, EU:T:2012:351), it was required to conduct an in-depth assessment in all cases where the positive effects of a regional aid measure clearly did not outweigh the potential negative effects, even where the thresholds laid down in paragraph 68 of the Guidelines were not exceeded. Previously, in recital 155 of the contested decision, the Commission concluded that the absence of any ‘noteworthy distortion of competition’ had not been proven and that EUR 50 million in aid for a EUR 400 million investment had a noteworthy potential for distortion of competition.
10Next, as part of the in-depth assessment of the notified aid, the Commission stated in recital 157 of the contested decision that it had to examine in detail, on the basis of the criteria set out in the Communication from the Commission concerning the criteria for an in-depth assessment of regional aid to large investment projects, whether the aid in question was necessary to provide an incentive effect for the investment and whether the benefits of the aid measure outweigh the resulting distortions of competition and effect on trade between Member States.
11In that regard, the Commission inter alia found, in recitals 160 to 173 of the contested decision, that the Federal Republic of Germany had proven the incentive effect of the notified aid on the basis of the second scenario set out in the Communication from the Commission concerning the criteria for an in-depth assessment of regional aid to large investment projects, namely the one involving circumstances where, in the absence of aid, the investment in question would have been made in another region of the European Union. The Commission observed in that regard that the Federal Republic of Germany had maintained that the construction of the plant in Munich (Germany) was an alternative location to Leipzig. The Commission inter alia stated that it was apparent from the decisive documents submitted to the applicant’s Board in December 2009 that ‘the project would have been EUR 17 million less costly in Munich than in Leipzig, without the aid’. After noting that another factor also relating to the location choice for the investment related to a long-term strategic possibility of subsequently increasing production capacity, although that factor had not been quantified in monetary terms by the undertaking, the Commission highlighted other internal documents of the undertaking showing ‘that the availability of State aid in the amount of EUR 50 million [had been] analysed in preparation of the decision on the investment/location’.
12As regards the proportionality of the notified aid, the Commission stated in essence in recitals 174 to 189 of the contested decision that, in a second scenario situation, paragraph 33 of the Communication from the Commission concerning the criteria for an in-depth assessment of regional aid to large investment projects states that ‘for a location incentive, the aid [would] generally be considered proportionate if it equal[led] the difference between the net costs for the beneficiary company to invest in the assisted region and the net costs to invest in the alternative region(s)’.
13As regards the present case, the Commission considered in essence that the amount of EUR 17 million, representing the cost differential between the two locations (Leipzig and Munich), calculated on the basis of product investment costs, structural investment, planning and start-up costs, production costs, costs of supply, fixed costs, logistics costs and international tariffs for shipments, had to be considered the minimum amount necessary to change the location decision of the aid recipient. Therefore, the Commission found that amount to be proportionate in the light of the objective of promotion of regional development pursued by the aid. The Commission further considered that the strategic production expansion possibility in Leipzig, which was not available in Munich, should not be taken into account for the proportionality test of the notified aid, since it became relevant only in the very long-term, beyond the life cycle of the investment project at hand.
14In recital 176 et seq. of the contested decision, the Commission rejected the Federal Republic of Germany’s argument to the effect that the proportionality of a measure should not be assessed solely on the basis of documents reflecting the situation at the time of the investment/location decision, but also in the light of actual additional costs which, in the present case, included a total amount of EUR 50 million, including additional costs of EUR 29 million which ‘arose before the end of 2012’. In essence, the Commission stated in that regard that the incentive effect and the proportionality of the aid could not be proven on the basis of documents containing wholly different figures regarding the net handicaps and costs linked to locating the investment in the assisted region. The Commission took the view in particular that there was no right of recourse to documents containing costs that incurred only several years after the investment and location decisions in question had been adopted, and when the work relating to the investment project had already commenced.
15In recitals 190 to 198 of the contested decision, after assessing the positive and negative effects of the notified aid, the Commission weighed them up, finding that the positive effects of the EUR 17 million in aid outweighed the negative effect on trade between Member States and the potential economic and social repercussions on the alternative location, which was in a more advantaged region.
16Lastly, in recitals 199 to 202 of the contested decision, the Commission rejected the Federal Republic of Germany’s argument to the effect that its powers to assess the compatibility of the aid measure in question with the internal market in accordance with the Communication from the Commission concerning the criteria for an in-depth assessment of regional aid to large investment projects is restricted to that part of the aid amount exceeding the notification threshold laid down in Article 6(2) of Regulation No 800/2008.
Procedure and forms of order sought
17By application lodged at the Registry of the General Court on 19 September 2014, the applicant brought this action. On 4 December 2014, the Commission lodged its defence.
18Pursuant to Article 24(6) of the Rules of Procedure of the General Court of 2 May 1991, a notice was published in the Official Journal of the European Union of 8 December 2014 (OJ 2014 C 439, p. 30), concerning the action brought in the present case.
19On 28 January 2015, the applicant lodged the reply at the Court Registry and, on 11 March 2015, the Commission lodged the rejoinder.
20On 16 January 2015, the intervener, Freistaat Sachsen, lodged an application for leave to intervene in support of the applicant. The Commission and the applicant lodged their observations at the Court Registry on 4 and 10 February 2015 respectively. The application for leave to intervene was granted by order of the President of the Fifth Chamber of 11 May 2015.
21On 3 July 2015, the intervener lodged its statement in intervention at the Court Registry, and the applicant and the Commission submitted their observations on that statement on 14 September 2015.
22On 17 September 2015, the Court Registry notified the parties of the close of the written part of the procedure. On 22 September 2015 the Commission informed the Court that it was not requesting that an oral hearing be held. On 7 October 2015 the applicant informed the Court that it wished to have an oral procedure.
23On hearing the report of the Judge-Rapporteur, the Court (Fifth Chamber) decided to open the oral procedure.
24The parties presented oral argument and replied to questions put by the Court at the hearing on 8 September 2016.
25The applicant claims that the Court should:– annul the contested decision ‘in so far as it declares the amount by which the aid claimed of EUR 45257273 exceeds EUR 17 million (EUR 28257273) to be incompatible with the internal market’;– in the alternative, ‘annul [that decision] in so far as it declares the amount of EUR 22.5 million which is exempt from notification in accordance with Article 6(2) of Regulation No 800/2008 to be incompatible with the internal market’;– order the Commission to pay the costs.
26The Commission contends that the Court should:– dismiss the application;– order the applicant to pay the costs.
27The intervener contends, in essence, that the Court should grant the forms of order sought by the applicant.
Law
28The applicant puts forward three pleas in law: (i) infringement of Article 108(3) TFEU; (ii) infringement of Article 107(3)(c) TFEU; and (iii) in the alternative, infringement of Article 108(3) TFEU and Regulation No 800/2008 resulting from the limitation of the amount of the aid to a lower amount than that exempted from the notification obligation.
The first plea in law: infringement of Article 108(3) TFEU
29The applicant’s first plea is divided into three parts. The first part alleges that there was no diligent and impartial examination as part of the preliminary examination procedure. The second part alleges that there was no diligent and impartial examination as part of the formal investigation procedure. The third part alleges manifest error in the assessment of the applicability of the Communication from the Commission concerning the criteria for an in-depth assessment of regional aid to large investment projects.
First part of the first plea in law
30The applicant considers, in essence, that the Commission infringed Article 108(3) TFEU and also its obligation of diligence and sound administration in that, in the course of the preliminary examination procedure, it did not attempt to overcome the difficulties encountered in defining the relevant market. In its submission, although the Commission had observed the principle of sound management and correctly interpreted paragraph 68(a) of the Guidelines, it failed to carry out an in-depth assessment of the aid in question. The applicant also criticises it for having failed to engage in a constructive dialogue with the Federal Republic of Germany and with it.
31The intervener submits, in essence, that the Commission’s assertion regarding the burden of proof, on which it bases the opening of the formal investigation procedure, is not convincing. In its view, it was not for the Federal Republic of Germany to prove that there were ‘no serious difficulties’, that is to say, a negative fact. Nor, in its submission, could the Commission hide behind an alleged paucity of information received.
32The Commission disputes the arguments of the applicant and the intervener.
33Suffice it to observe, as a preliminary point that, under Article 108(3) TFEU, the Commission carries out an examination of proposed State aid which is intended to enable it to form a prima facie opinion as to whether the aid in question is partially or entirely compatible with the internal market. The formal investigation procedure provided for in Article 108(2) TFEU seeks to protect the rights of interested third parties and must, moreover, enable the Commission to be fully informed of all the facts of the case before taking its decision, in particular by receiving the observations of interested third parties and Member States. Although its powers are circumscribed as far as initiating the formal procedure is concerned, the Commission nevertheless enjoys a certain discretion in identifying and evaluating the circumstances of the case in order to determine whether or not they present serious difficulties. In accordance with the objective of Article 108(3) TFEU and its duty of sound administration, the Commission may, inter alia, engage in a dialogue with the notifying State or third parties in an endeavour to overcome, during the preliminary procedure, any difficulties encountered (see judgment of 10 July 2012, Smurfit Kappa Group v Commission, T‑304/08, EU:T:2012:351, paragraph 75 and the case-law cited).
34According to established case-law, the procedure under Article 108(2) TFEU is essential whenever the Commission has serious difficulties in determining whether an aid is compatible with the internal market (see judgment of 10 July 2012, Smurfit Kappa Group v Commission, T‑304/08, EU:T:2012:351, paragraph 76 and the case-law cited).
35Accordingly, it is for the Commission to determine, on the basis of the factual and legal circumstances of the case, whether the difficulties involved in assessing the compatibility of the aid require the initiation of that procedure. The assessment must satisfy three requirements (see judgment of 10 July 2012, Smurfit Kappa Group v Commission, T‑304/08, EU:T:2012:351, paragraph 77 and the case-law cited).
36Firstly, under Article 108 TFEU the Commission’s power to find aid compatible with the internal market upon the conclusion of the preliminary examination procedure is restricted to aid measures that raise no serious difficulties; that criterion is thus an exclusive one. Thus, the Commission may not decline to initiate the formal investigation procedure in reliance on other circumstances, such as third-party interests, considerations of economy of procedure or any other ground of administrative or political convenience (see judgment of 10 July 2012, Smurfit Kappa Group v Commission, T‑304/08, EU:T:2012:351, paragraph 78 and the case-law cited).
37Secondly, where it encounters serious difficulties, the Commission must initiate the formal procedure, having no discretion in this regard (see judgment of 10 July 2012, Smurfit Kappa Group v Commission, T‑304/08, EU:T:2012:351, paragraph 79 and the case-law cited).
38Thirdly, the notion of serious difficulties is an objective one. Whether or not such difficulties exist requires investigation of both the circumstances under which the contested measure was adopted and its content. That investigation must be conducted objectively, comparing the grounds of the decision with the information available to the Commission when it took a decision on the compatibility of the disputed aid with the internal market. It follows that judicial review by the Court of the existence of serious difficulties will, by nature, go beyond consideration of whether or not there has been a manifest error of assessment (see judgment of 10 July 2012, Smurfit Kappa Group v Commission, T‑304/08, EU:T:2012:351, paragraph 80 and the case-law cited).
39It is also apparent from the case-law that if the examination carried out by the Commission during the preliminary examination procedure is insufficient or incomplete, this constitutes evidence of the existence of serious difficulties (see judgment of 10 July 2012, Smurfit Kappa Group v Commission, T‑304/08, EU:T:2012:351, paragraph 81 and the case-law cited).
40Moreover, it must be borne in mind that the examination of the issue whether serious difficulties exist is aimed at determining whether, on the day it adopted the decision to open the formal investigation procedure, the Commission had in its possession sufficiently complete information to assess the compatibility of the disputed measure with the internal market (see, to that effect, judgment of 3 March 2010, Bundesverband deutscher Banken v Commission, T‑36/06, EU:T:2010:61, paragraph 129). The Commission cannot therefore limit itself to the preliminary procedure under Article 108(3) and take a favourable decision on a State measure unless it is in a position to reach the firm view, following an initial investigation, that the measure cannot be classified as aid within the meaning of Article 107(1) TFEU or that the measure, whilst constituting aid, is compatible with the internal market (see, to that effect, judgment of 3 March 2010, Bundesverband deutscher Banken v Commission, T‑36/06, EU:T:2010:61, paragraph 125 and the case-law cited).
41Furthermore, when the Commission assesses the compatibility of State aid with the internal market in the light of the derogation provided for in Article 107(3) TFEU, it must take into account the Union interest and may not refrain from assessing the impact of those measures on the relevant market or markets in the EEA as a whole. In such cases the Commission is bound not only to verify that the measures are such as to contribute effectively to the economic development of the regions concerned, but also to evaluate the impact of the aid on trade between Member States, and in particular to assess the sectorial repercussions they may have throughout the Union (see judgment of 10 July 2012, Smurfit Kappa Group v Commission, T‑304/08, EU:T:2012:351, paragraph 82 and the case-law cited).
42In the application of Article 107(3) TFEU, the Commission has a wide discretion the exercise of which involves complex economic and social assessments which must be made in a Union context. Judicial review of the manner in which that discretion is exercised is confined to establishing that the rules of procedure and the rules relating to the duty to give reasons have been complied with and to verifying the accuracy of the facts relied on and that there has been no error of law, manifest error of assessment in regard to the facts or misuse of powers (see judgments of 10 July 2012, Smurfit Kappa Group v Commission, T‑304/08, EU:T:2012:351, paragraph 83 and the case-law cited, and of 2 March 2012, Netherlands v Commission, T‑29/10 and T‑33/10, EU:T:2012:98, paragraph 102 et seq.).
43However, by adopting rules of conduct and announcing by publishing them that it will henceforth apply them to the cases to which they relate, the Commission imposes a limit on the exercise of its own discretion and cannot depart from those rules under pain of being found, where appropriate, to be in breach of the general principles of law, such as equal treatment or the protection of legitimate expectations, unless it can provide reasons justifying its departure from its own rules, in view of those same principles (see judgment of 10 July 2012, Smurfit Kappa Group v Commission, T‑304/08, EU:T:2012:351, paragraph 84 and the case-law cited).
44In that regard, it should be borne in mind that paragraph 68 of the Guidelines institutes inter alia a market share threshold (25%) which, when exceeded, requires the Commission to open the formal investigation procedure provided for in Article 108(2) TFEU, even if, prima facie, it is of the opinion that the aid in question is compatible with the internal market. It is, however, not apparent from that rule that the initiation of the formal investigation procedure will be precluded where those thresholds have not been exceeded and that the Commission will be bound, in such a case, to make a direct finding that the aid is compatible with the internal market (see, to that effect, judgment of 10 July 2012, Smurfit Kappa Group v Commission, T‑304/08, EU:T:2012:351, paragraphs 85, 86 and 88). In the latter scenario, the Commission will always have the option not to open the formal investigation procedure, but it cannot justify that decision by claiming that it is required by paragraph 68 of the Guidelines not to do so (see, to that effect, judgment of 10 July 2012, Smurfit Kappa Group v Commission, T‑304/08, EU:T:2012:351, paragraph 88).
45In the present case, it should be noted that the Commission considered it necessary to open the formal investigation procedure. In that regard, it stated inter alia that it could not rule out the possibility that the threshold set out in paragraph 68(a) of the Guidelines was exceeded on at least one of the relevant product markets.
46In deciding to open the formal investigation procedure, the Commission did not infringe either Article 108(3) TFEU or its obligation of diligence or sound administration.
47As evidenced by paragraph 44 above, where there are serious difficulties, the Commission may open the formal investigation procedure, irrespective of whether the 25% market share threshold set out in paragraph 68(a) of the Guidelines has been exceeded.
48At the same time, it must be remembered that, in adopting paragraph 68(a) of the Guidelines, the Commission bound itself to open the formal investigation procedure where the 25% market share threshold was exceeded (see paragraph 44 above). Yet the Commission made no error in observing that it could not, at the stage of the preliminary examination procedure, rule out the possibility that that threshold had been exceeded.
49Contrary to the applicant’s assertions, it cannot be stated that the Commission made no attempt during the preliminary examination procedure to overcome the difficulties encountered. In that regard, it must be noted that, following the Federal Republic of Germany’s notification, which gave as the relevant product market the electric car market or, in the alternative, the entire market for conventional vehicles, including possibly in that case segments C and D as per the IHS Global Insight classification, whilst highlighting the issues posed by such a segmentation for the electric cars sector, whereas the global market was given in the definition of the relevant geographic market, the Commission requested additional information by letter of 31 January 2011, to which the Federal Republic of Germany replied on 1 March 2011.
50More specifically, the Commission’s letter of 31 January 2011 indicates that the additional information requested concerned inter alia the reasons why the electric car market was proposed as the relevant market and not a market defined more strictly or differently, and also the reasons why the Federal Republic of Germany took the view that an integrated global electric car market was going to be created, comprising general commercial fluctuations. Moreover, the Commission wished to obtain certain additional independent studies and analyses of the foreseeable segmentation of the market in question. All of the abovementioned information requests must be viewed in the context described in paragraphs 14 and 15 of the letter in question, from which it can be inferred that the Commission considered that it was difficult to draw up a prospective analysis in the sector in question. In those circumstances, the Commission took the view that the possibility could not be ruled out that the applicant could achieve a share exceeding 25% inter alia on the combined C and D segments of the electric car market in the EEA. It accordingly found it necessary to request detailed information on the various, potentially relevant segments.
51Further to the response of the Federal Republic of Germany, dated 1 March 2011, in which inter alia the difficulties surrounding the task of defining the relevant markets were discussed by letter of 20 April 2011, the Commission requested additional information, inter alia on the classification of the i3 and i8 models, or detailed information on the relevant geographic market. The response was communicated to it on 25 May 2011.
52Contrary to the applicant’s submissions, the Commission did not merely criticise the inadequacy of certain information obtained from the Federal Republic of Germany on the product market and the relevant geographic market. It is apparent from several of the abovementioned letters, read together with the decision to open the formal investigation procedure, that the Commission assessed the information already obtained in context and that it concluded that it could not adopt a definitive position, inter alia as to the definition of the relevant markets, without opening the formal investigation procedure, so as to question third parties on points where it was still having serious difficulties. As regards the geographic market specifically targeted by the applicant’s assertions, the Commission inter alia found that the information it had obtained did not establish, to the requisite legal standard, that there was currently a global market for the products in question. The Commission requested additional information by letter of 17 February 2012.
53It should further be noted that the Commission was correct to highlight the difficulties and uncertainties encountered, as even the Federal Republic of Germany emphasised the difficulties surrounding the definition of the relevant markets in its letter of 1 March 2011. Firstly, it affirmed that the electric car or light electric car market could not yet be defined and that the hybrid car market ‘tended to open up only in higher-end segments’, that is to say, segments E and F. Therefore, it is the global conventional car market, taken as a whole and without any sub-segmentation, that is relevant. Secondly, in response to the Commission’s specific questions about the segments to which electric cars might belong, the Federal Republic of Germany had stated that, owing to their length, i3 cars come within segments B and C whilst they really ought to be classified in segment D on account of their price. Thirdly, regarding electric cars produced by competitors of the applicant, it is still difficult to classify them in the absence of detailed information although, in the Federal Republic of Germany’s submission, they could be classified inter alia in segments A, B or C. Moreover, since large-scale production of electric cars came about only recently, new production capacities will necessarily mean that the first undertaking ‘past the post’ will achieve significant market shares. However, the Federal Republic of Germany had also observed in that respect that this should not be taken into account in the assessment carried out in accordance with paragraph 68 of the Guidelines, which rather tend to pursue the objective of precluding situations of overcapacity or the presence of dominant undertakings on the market.
54It was the combination of those factors that led the Commission to request the additional information referred to in paragraphs 49 to 51 above. In those circumstances, the applicant’s assertion to the effect that the Commission did not actually hold a genuine dialogue with the Federal Republic of Germany must be rejected. Moreover, since the applicant’s assertions also allege that the Commission had no dialogue with it, suffice it to observe, in accordance with the judgment of 8 July 2004, Technische Glaswerke Ilmenau v Commission (T‑198/01, EU:T:2004:222, paragraphs 191 to 193), that it is appropriate to apply to the present case by analogy with the preliminary examination procedure, that the Commission was not bound by any such requirement.
55Therefore, the first part of the first plea must be dismissed as unfounded, without its being necessary, in any event, to rule on the merits of the other assertions put forward by the parties, such as the intervener ’s submission to the effect that the applicant cannot prove what is in effect a negative fact, and without its being necessary to rule on the question whether a potential error affecting the decision to open the formal investigation procedure is liable to call into question the lawfulness of the contested decision.
Second part of the first plea in law
56The applicant submits, in essence, that the uncertainties surrounding the definition of the market in the context of the analysis provided for in paragraph 68(a) of the Guidelines, which are apparent inter alia from the contested decision, ought to have been eliminated at the latest in the course of the formal investigation procedure. In its submission, as those uncertainties arose as a direct result of the approach adopted by the Commission, the Commission could not rely on the fact that neither the participants nor third parties had allegedly provided the relevant information in response to the publication of the decision to open the formal investigation procedure. In those circumstances, the Commission ought to have had recourse to other means in order to be completely enlightened about all the facts of the case; it could have, for example, called in an external expert or conducted a market survey. In the applicant’s submission, the approach adopted by the Commission led to unjustified, unequal treatment.
57The intervener disputes the method adopted by the Commission to determine the relevant market. Firstly, it submits that that method gave rise to legal impediments and could be described as arbitrary. Secondly, it argues that the definition of the market undermines the allocation of powers between the Commission and the Member States. Thirdly, in its submission, there is no apparent justification or factual basis for the definition of the market. Lastly, the intervener submits that the definition of the market infringes the general principle of equal treatment.
58The Commission disputes the arguments of the applicant and the intervener.
59As a preliminary point, the Court concurs with the Commission’s view that, because of its content, this complaint put forward by the applicant must be construed as alleging infringement of Article 108(2) TFEU and not Article 108(3) TFEU. It in fact alleges a failure to fulfil examination obligations as part of the formal investigation procedure.
60Next, the Court observes that the applicant’s main criticism is in essence directed at the manner in which the Commission assessed the information enabling it to determine what the relevant market was and the applicant’s share of that market. More specifically, the applicant alleges that, due to there being no sufficiently in-depth analysis of the definition of the relevant market, the Commission erred in determining whether to apply, for the assessment of the notified aid’s compatibility with the internal market, the Communication from the Commission concerning the criteria for an in-depth assessment of regional aid to large investment projects or only the Guidelines.
61In that regard, the Court observed that paragraph 68 of the Guidelines is worded as follows:68. Where the total amount of aid from all sources exceeds 75% of the maximum amount of aid an investment with eligible expenditure of EUR 100 million could receive, applying the standard aid ceiling in force for large enterprises in the approved regional aid map on the date the aid is to be granted, and where(a) the aid beneficiary accounts for more than 25% of the sales of the product(s) concerned on the market(s) concerned before the investment or will account for more than 25% after the investment, or…the Commission will approve regional investment aid only after a detailed verification, following the opening of the procedure provided for in [Article 108(2) TFEU], that the aid is necessary to provide an incentive effect for the investment and that the benefits of the aid measure outweigh the resulting distortion of competition and effect on trade between Member States.’
62In footnote 63, which appears under paragraph 68 of the Guidelines, it is stated that the Commission intended to draw up before the entry into force of the Guidelines, namely on 1 January 2007, further guidance on the criteria that it would take into account when assessing that the aid was necessary to provide an incentive effect for the investment and that the benefits of the aid measure outweighed the resulting distortion of competition and effect on trade between Member States.
63As observed by the Commission, given the particular risks of distortions of competition associated therewith, in order to assess the compatibility of aid for large investment projects exceeding the thresholds provided for in paragraphs 68 to 70 of the Guidelines with Article 107(3) TFEU, it is appropriate to refer to the Communication from the Commission concerning the criteria for an in-depth assessment of regional aid to large investment projects.
64More specifically, as evidenced by paragraphs 6 and 7 of the Communication from the Commission concerning the criteria for an in-depth assessment of regional aid to large investment projects, paragraphs 68 to 70 of the Guidelines must be read bearing in mind the fact that certain large amounts of regional aid for large investment projects could still have significant effects on trade, and may lead to substantive distortions of competition. For this reason, it was formerly Commission policy not to authorise aid for large investment projects above certain thresholds and it was current policy, on the date relevant to the present dispute, to assess such aid according to detailed criteria.
65However, although paragraph 68 of the Guidelines establishes an obligation for the Commission to conduct a detailed verification of whether the aid is necessary to provide an incentive effect for the investment and whether the benefits of the aid measure outweigh the resulting distortion of competition and effect on trade between Member States, that rule in no way prevents it from conducting such a verification where the thresholds in question have not been exceeded (see, to that effect, judgment of 10 July 2012, Smurfit Kappa Group v Commission, T‑304/08, EU:T:2012:351, paragraph 88). The mere fact that the thresholds laid down in the Guidelines have not been exceeded does not have the automatic consequence that the aid is compatible with the internal market. On the contrary, even where those thresholds have not been exceeded and the other conditions laid down in the Guidelines are met, the Commission may still ascertain whether the advantages in terms of regional development outweigh the disadvantages occasioned by the project in question in terms of distortion of competition (see, to that effect, judgment of 10 July 2012, Smurfit Kappa Group v Commission, T‑304/08, EU:T:2012:351, paragraphs 90 to 97), which implies inter alia a review of whether the aid in question is necessary.
66In the light of those considerations, the Commission’s conclusion found in recital 156 of the contested decision, to the effect that it could rightly conduct a detailed assessment of the aid in question, irrespective of the question whether the thresholds laid down in paragraph 68 of the Guidelines had been exceeded, must be confirmed. In particular, there was nothing preventing the Commission from applying in that verification the criteria set out in the Communication from the Commission concerning the criteria for an in-depth assessment of regional aid to large investment projects in its examination of whether the aid in question was necessary.
67Similarly, so too must the applicant’s argument alleging infringement of the principle of equal treatment be rejected. In that regard, suffice it to bear in mind that, contrary to what the applicant suggests, even with regard to aid to undertakings holding a market share of under 25%, the Commission conducts its assessment in the light of the requirements laid down in Article 107(3) TFEU which, where applicable, entails an assessment of whether or not the aid in question is necessary.
68Therefore, the second part of the present plea must be rejected, without its being necessary to rule on the arguments aimed at demonstrating that, in the present case, the Commission ought not to have considered that the threshold laid down in paragraph 68(a) of the Guidelines had been exceeded and that the reasons given for the contested decision were insufficient in that regard.
Third part of the first plea in law
69This part is divided into four complaints: (i) manifest error due to there being no definition of the relevant market; (ii) manifest error of assessment in the definition of the relevant product market for the determination of the market shares; (iii) manifest error of assessment in the definition of the relevant geographic market for the determination of the market shares; and (iv) manifestly incorrect determination of the market shares.
70Common to all those complaints is the applicant’s argument that the infringement of the obligation of diligent and impartial examination led to a manifest error of assessment, in that the Commission considered it justified to go on ‘to the following phase of the formal investigation procedure’ and to apply, in that context, the Communication from the Commission concerning the criteria for an in-depth assessment of regional aid to large investment projects.
71In that regard, in the first place, it should be borne in mind that the Commission’s conclusion found in recital 156 of the contested decision, to the effect that it could rightly conduct a detailed assessment of the aid in question, irrespective of the question whether the thresholds laid down in paragraph 68 of the Guidelines had been exceeded, must be confirmed.
72In the second place, it must be pointed out that that conclusion by itself justifies the Commission’s decision to conduct a detailed assessment of the compatibility of the aid in question with the internal market, including the question whether it is necessary.
73Therefore, all of the arguments put forward by the applicant under the third part of the first plea, aimed at showing that the Commission ought not to have found that the 25% market share threshold laid down in paragraph 68 of the Guidelines had been exceeded, must be rejected as ineffective, as must accordingly the plea in its entirety.
The second plea in law: infringement of Article 107(3)(c) TFEU
74The second plea in law put forward by the applicant is divided into four parts. The first three parts allege manifestly incorrect assessment of the incentive effect of the aid, the appropriateness of the aid and the effects of the aid, respectively. Lastly, the fourth part concerns the allegedly manifestly incorrect finding of fact with regards to actual additional costs.
75As a preliminary point, the applicant states that neither Regulation No 800/2008 nor the Guidelines quantify the incentive effect. In particular, it is not necessary to prove the disadvantages of the site location, which can be compensated for through an ‘incentive measure’. As regards the appropriateness of the aid, in the applicant’s submission the logic of Article 107(3) TFEU and Regulation No 800/2008 does not link the amount of the aid to proof of additional costs. Even if the Court should not concur in that analysis, in its submission the appropriateness of the aid should be based on actual additional costs rather than previously assessed planning costs. The Commission, instead of assessing the advantages and disadvantages of the investment project, merely found that any aid exceeding the cost differential initially assessed would give rise to a significant distortion of competition.
First part of the second plea in law
76The applicant considers the Commission’s assessment finding that ‘neither the incentive effect nor the appropriateness of the aid has been established’ for that part of the aid exceeding EUR 17 million to be vitiated by a manifest error. In the applicant’s submission, the conditions for a ‘separate’ assessment of the incentive effect are set out in Article 8(3)(e) of Regulation No 800/2008. It argues that the incentive effect of granting the EUR 49 million in aid was established, referring inter alia to recital 172 of the contested decision. In its view, that aid amount made it possible not only to compensate for disadvantages of the site location, but also to cover for other disadvantages, including certain ‘unquantifiable’ ones associated with the risks of an investment in a completely new car, manufactured elsewhere than the undertaking’s principal location. The applicant submits that it is doubtful that the cost differential, evaluated at EUR 17 million at the time of the investment decision, was sufficient incentive for BMW to carry out its project in Leipzig. Nor was such a question put to BMW’s Board.
77The intervener states that, under Article 107(3) TFEU, the disadvantages inherent in an investment must ‘at least be compensated for’, as that is the only way to create incentive to invest in the regions being aided. Other incentives should be created, however, in order to enable disadvantaged regions to bridge their economic gap. Although the primary law prohibits overcompensation, it is nevertheless not premised on a principle of under-compensation. It follows that all additional costs generated by the investment in question up to the authorised ceiling are compatible with the internal market.
78The Commission disputes the arguments of the applicant and of the intervener.
79As a preliminary point, it should be borne in mind that, where some of the grounds in a decision on their own provide a sufficient legal basis for the decision, any errors in the other grounds of the decision have no effect on its operative part. Moreover, where the enacting terms of a Commission decision are based on several pillars of reasoning, each of which would in itself be sufficient to justify those terms, that decision should, in principle, be annulled only if each of those pillars is vitiated by an illegality. In such a case, an error or other illegality which affects only one of the pillars of reasoning cannot be sufficient to justify annulment of that decision because that error could not have had a decisive effect on the operative part adopted by the Commission (judgment of 14 January 2009, Kronoply v Commission, T‑162/06, EU:T:2009:2, paragraph 62).
80Next, it should be noted that Article 8(3) of Regulation No 800/2008, referred to by the applicant, provides as follows:‘Aid granted to large enterprises, covered by this Regulation, shall be considered to have an incentive effect if, in addition to fulfilling the condition laid down in paragraph 2, the Member State has verified, before granting the individual aid concerned, that documentation prepared by the beneficiary establishes one or more of the following criteria:…(e) as regards regional investment aid referred to in Article 13, that the project would not have been carried out as such in the assisted region concerned in the absence of the aid.’
81In the present case, as evidenced by the notification documents, including points 2.3.1 and 2.3.2 of the notification form, the aid in question was investment aid that the Federal Republic of Germany intended to grant under an aid scheme (the IZG), but was subject to an individual notification obligation (see paragraph 2 above). As rightly observed by the Commission in paragraphs 71 and 72 of its statement in defence and in paragraph 40 of the rejoinder, referring to Article 3 and Article 6(2) of Regulation No 800/2008, it was not a question of aid referred to in Article 8(3) of that regulation, in other words aid ‘covered by [that] regulation’, but rather aid notified individually (see also recitals 1 to 7 in the preamble to and Article 6(2) of Regulation No 800/2008).
82As discussed in the examination of the first plea, the Commission could rightly examine whether the aid in question was necessary and there was nothing precluding it from examining in that context whether, without the aid, the project might not have been carried out in the assisted region in question.
83The principal question is whether the amount of the aid that could be held to provide an incentive and also proportionate was EUR 17 million, as argued by the Commission, or EUR 49 million, as argued by the applicant.
84It should be observed that, in the contested decision, the Commission correctly conducted a differentiated analysis of the incentive effect and proportionality of the aid, which is in keeping with the case-law (see, to that effect, judgment of 14 January 2009, Kronoply v Commission, T‑162/06, EU:T:2009:2, paragraphs 60 to 101). As some of the applicant’s assertions, although put forward as part of the complaint relating to the incentive effect, are in fact more strongly related to the proportionality of the aid, they will be analysed in the part addressing the following complaint.
85Regarding the incentive effect of the aid, as evidenced by recital 160 et seq. of the contested decision, the Commission examined, correctly, the question whether the aid actually was a factor in the recipient’s changing its plans to the point where it decided, as a result of the aid, to invest in the region targeted.
86In that regard, the Commission examined both scenarios set out in the Communication from the Commission concerning the criteria for an in-depth assessment of regional aid to large investment projects (see, to that effect, paragraph 19 et seq. of that communication and recital 163 et seq. of the contested decision).
87After observing, inter alia, that it was for the notifying Member State to produce the relevant evidence, in recitals 163 to 167 of the contested decision the Commission ruled out the first scenario which, under paragraph 22(1) of the Communication from the Commission concerning the criteria for an in-depth assessment of regional aid to large investment projects, consists in demonstrating that ‘[t]he aid [gave] an incentive to adopt a positive investment decision because an investment that would otherwise not be profitable for the company at any location [could] take place in the assisted region’. That conclusion drawn by the Commission was not challenged in the present case before the Court.
88Regarding the second scenario set out in paragraph 22(2) of the Communication from the Commission concerning the criteria for an in-depth assessment of regional aid to large investment projects, that is to say, involving the question whether ‘[t]he aid [gave] an incentive to opt to locate a planned investment in the relevant region rather than elsewhere because it compensate[d] for the net handicaps and costs linked to a location in the assisted region’, the Commission found, in paragraphs 168 to 173 of the contested decision, that it fit the case before it.
89In that context, the Commission, inter alia in recital 170 of the contested decision, referred to the information obtained from the Federal Republic of Germany concerning, firstly, the other locations initially considered for the investment and BMW’s analysis of those locations and, secondly, the information comparing investment costs for Munich and Leipzig, that is to say, in the two cities still on the list of locations under consideration following the preliminary analyses.
90The Commission observed that the calculations apparent from documents dating from December 2009 showed that, without the aid in question, the investment costs for Munich would have been EUR 17 million lower than for Leipzig. The Commission also noted the strategic advantages of Leipzig as compared with other locations assessed previously, being, in addition to the possibility of being able easily to increase production, the fact that it was not necessary to commence construction from zero, that the production location was not far from locations producing carbon fibre reinforced plastic materials, that there were no communication difficulties, that protection of know-how was ensured and, lastly, that the location was not particularly far from the aid recipient’s research centre.
91Lastly, after also stating that the documents showed that the availability of State aid in the amount of EUR 50 million was analysed in preparation of the decision on the investment/location, the Commission concluded that ‘[the Federal Republic of] Germany [had] successfully proved, on the basis of these genuine, contemporary documents, that the availability of State aid [had] triggered the decision to locate the investment into the production of the i3 model in Leipzig rather than in Munich’.
92It should be noted that the Commission referred to the documents presented to the Board of the BMW Group in December 2009 relating to EUR 17 million as additional comparative costs of the investment in Leipzig, whilst at the same time referring to other documents showing that the possibility of obtaining a higher amount of aid, namely EUR 50 million, had also been analysed in preparation of the decision on the investment/location.
93In that regard, the Court again highlights the fact, evidenced in the contested decision, that the Commission did not find that the aid had no incentive effect, either with respect to the EUR 17 million or the EUR 50 million, which was, according to the internal documents of the recipient undertaking, in the nature of a ‘possibility of obtaining’. The Commission merely found, in respect of the amount of the notified aid exceeding EUR 17 million, that the requirement of proportionality was not met, which aspect is the subject of a separate complaint in the present proceedings.
94It is moreover clear that, contrary to the applicant’s assertions, it has not been demonstrated that the incentive effect for BMW was proven solely on the basis of the potential grant of aid in an amount close to EUR 50 million, evaluated by the undertaking in question, and not EUR 17 million, as is also apparent from the recommendation addressed on that point to the Board of the undertaking. As will be analysed in detail in paragraph 113 et seq. below, addressing the question of whether the aid is ‘necessary’, it was already the EUR 17 million, defined as corresponding to the foreseeable cost differential between the Munich location and the Leipzig location, which had been taken into consideration by the decision-making bodies of the recipient undertaking in order to assess the feasibility of the investment in question in Leipzig and which ultimately did actually contribute to its being carried out as a project that that undertaking would not have carried out using its own resources in the assisted region.
95In those circumstances, it is still necessary to note that the applicant’s various assertions about the amount of the aid that had to be considered compatible with the internal market, including the criticisms of what was characterised as an ‘illegal amalgam’ between the incentive effect and the appropriateness of the aid, the questions of the ‘quantification’ of the incentive effect or the questioning about whether ‘the amount of the aid had to be limited to the cost differential calculated ex ante’, in reality relate to the proportionality of the aid and will be analysed in connection with the next complaint.
96Similarly, regarding the applicant’s assertion that the Communication from the Commission concerning the criteria for an in-depth assessment of regional aid to large investment projects is in keeping with higher-ranking law, put forward in the reply, in so far as it must be construed as being directed at that communication in its entirety, it was not put forward clearly in the application; nor has it been substantiated. It is accordingly inadmissible. The legal scope of that communication has moreover been analysed above (see paragraph 43 above).
97Lastly, the intervener’s assertions, summarised in paragraph 77 above, to the effect that there is a distortion of competition in the present case to the detriment of the investor receiving the aid who, therefore, must be protected, must be rejected for lack of a sufficiently precise legal basis. In particular, if that assertion were to be construed as being directed at an infringement of the principle of equal treatment with respect to undertakings having a market share of under 25%, it was observed above that there can be no infringement of that principle in the present case, since the Commission may conduct in-depth analyses irrespective of whether or not that threshold has been exceeded (see paragraph 67 above). If the aforementioned assertion were to be interpreted more broadly, suffice it to observe that it is for the Commission, as part of its role in reviewing State aid, to assess the effects of that aid on competition as a whole.
98Moreover, regarding the intervener’s argument to the effect that there is ‘under-compensation’ to the detriment of the investor, as that may be linked to the question whether the proportionality of the aid had in fact been assessed by the Commission, it will be analysed as part of the next complaint.
99In the light of the foregoing and given that the Commission was correct in finding, in recital 173 of the contested decision, that the aid did have an incentive effect, the first part of the second plea must be rejected.
Second part of the second plea in law
100This part is itself divided into three complaints. The first concerns the unacceptable combination of the incentive effect and the appropriateness of the aid, the second the manifest error arising from the assessment of the appropriateness of the aid on the basis of the planned costs rather than actual costs and the third the alleged manifest error resulting from the finding of an amount exceeding the disadvantages of the site location.
101In the applicant’s submission, in essence the Commission made a manifestly incorrect assessment of the appropriateness of the aid by confusing the analysis of the incentive effect and the appropriateness of the aid. In that regard, the Commission observed in recital 183 of the contested decision that paragraph 33 of the Communication from the Commission concerning the criteria for an in-depth assessment of regional aid to large investment projects stated expressly that ‘the aid [would] generally be considered proportionate if it [equalled] the difference between the net costs for the beneficiary company to invest in the assisted region and the net costs to invest in the alternative region(s)’. This is why the aid was considered proportionate only up to ‘the amount necessary to trigger the decision to locate the investment in the area concerned’. The Commission based itself on the same documents as those used to establish the incentive effect of the aid, that is to say, the documents the BMW Board had on the date of the investment decision taken in December 2009 and which gave a difference in planning costs of EUR 17 million in the comparison between the Leipzig and Munich locations. On the other hand, the Commission rejected subsequent documents showing costs borne only over several years after the adoption of the investment decision or the decision on site location (see recital 180 of the contested decision).
– The first complaint
102Referring to paragraph 7 of the Communication from the Commission concerning the criteria for an in-depth assessment of regional aid to large investment projects, the applicant submits that, in the assessment of the appropriateness of the aid, the Commission ought to have conducted an in-depth, competition law assessment of the question whether, given the implementation costs of the investment, the aid exceeded the amount necessary, thereby giving rise to a distortion of competition. It follows from the logic of Article 107(3) TFEU and Regulation No 800/2008 that the appropriateness of the aid did not turn on the relationship between the amount of the aid and proof of additional costs, but that it was in principle possible to grant aid within the authorised ceilings. Paragraph 33 of the Communication from the Commission concerning the criteria for an in-depth assessment of regional aid to large investment projects, which cannot prevail over the provisions of Regulation No 800/2008, does not, in its submission, lead to a different conclusion. The applicant submits that the Commission is making a manifest error of assessment in taking the view that paragraph 33 of that communication must be interpreted as a ‘general rule’ and ‘in no way as an example’. In the circumstances of the present case, the Commission ought to have taken account of the fact that the analysis of market position under paragraph 68(a) of the Guidelines had not led to a clear conclusion. The applicant also refers to the fact that the markets in question are in constant evolution.
103The Commission disputes the applicant’s claims.
104The Court finds that it is apparent from the applicant’s assertion that the ‘planned amount of the aid’ which, in its submission, was EUR 49 million, was divided into two parts. In its submission, the first part comprised the amount compensating for the disadvantages of the site location, whilst the second was aimed at covering other disadvantages arising during the implementation of the project and the unquantified (and partly unquantifiable) disadvantages necessarily linked to the risks of an investment in a completely new car, budgeted as exactly as possible and manufactured not at the undertaking’s principal location but at another production site.
105The Court agrees with the Commission in respect of the second part and finds that it is not appropriate to use State aid to eliminate all investment risk associated with a particular project. On the contrary, such risks are the responsibility of the undertaking receiving the aid, especially since they were not quantified or in part not even quantifiable in advance. The only relevant criterion in the assessment of the appropriateness of an aid measure is whether the aid was necessary in order for the investment project to be carried out in the assisted region in question. As evidenced by paragraph 33 of the Communication from the Commission concerning the criteria for an in-depth assessment of regional aid to large investment projects, that is the case where the aid ‘equals the difference between the net costs for the beneficiary company to invest in the assisted region and the net costs to invest in the alternative region(s)’.
106The applicant’s assertion to the effect that, under Article 13 of Regulation No 800/2008 and paragraph 38 of the Guidelines, the intensity of the aid admissible is calculated ‘solely on the basis of eligible costs’, does not show clearly how those provisions support its position in the present case. Their wording does not refer to the obligation to take into consideration, after the fact, costs that were actually invested in a specific project benefiting from regional State aid.
107It is, moreover, apparent from the very logic of paragraph 38 of the Guidelines that, in principle, the costs covered by the State aid are to be calculated before the commencement of the work. Therefore aid may only be granted under aid schemes if the recipient has submitted an application for aid and the authority responsible for administering the scheme has subsequently confirmed in writing that, subject to detailed verification, the project in principle meets the conditions of eligibility laid down by the scheme ‘before the start of work on the project’. Similarly, that provision provides for the need for a ‘letter of intention’ issued by the competent authority ‘before the start of work on the project’ for ‘ad hoc’ aid, conditional on Commission approval of the measure. It is, moreover, expressly stated that, if work begins ‘before the conditions laid down in [that provision] are fulfilled, the whole project will not be eligible for aid’. Lastly, nor is it possible to uphold the applicant’s submission to the effect that ‘it is possible to grant aid under the authorised ceilings’ — in reference to Regulation No 800/2008, and more specifically Article 6(2) of that regulation — as that assertion implicitly refers to the fact that there is no need to conduct an assessment of the proportionality of the amount of the aid.
108Regarding the assertion alleging that the Commission based itself on the same documents for the assessment of both the incentive effect and the proportionality of the aid, it is clear from the Communication from the Commission concerning the criteria for an in-depth assessment of regional aid to large investment projects, and more specifically paragraph 34 thereof, that such an approach is not precluded. That paragraph states that ‘Ultimately, [the net costs specified in paragraph 33] which are considered to be related to the regional handicaps result in a lower profitability of the investment’ and that, ‘[f]or that reason, calculations used for the analysis of the incentive effect, can also be used to evaluate whether the aid is proportionate’.
109It should also be noted that according to the case-law the Commission can declare aid compatible with Article 107(3) TFEU only if it can establish that the aid contributes to the attainment of one of the objectives specified, something which, under normal market conditions, the recipient undertakings would not achieve by their own actions. In other words, the Member States must not be permitted to make payments which, although they would improve the financial situation of the recipient undertaking, are not necessary for the attainment of the objectives specified in Article 107(3) TFEU (see, to that effect, judgment of 14 January 2009, Kronoply v Commission, T‑162/06, EU:T:2009:2, paragraph 65 and the case-law cited).
110According to that same case-law, it is not acceptable for aid to include arrangements, in particular as regards its amount, whose restrictive effects exceed what is necessary to enable the aid to attain the objectives permitted by the Treaty (see, to that effect, judgment of 14 January 2009, Kronoply v Commission, T‑162/06, EU:T:2009:2, paragraph 66 and the case-law cited).
111Similarly, the finding that an aid measure is not necessary can arise in particular from the fact that the aid project has already been started, or even completed, by the undertaking concerned prior to the application for aid being submitted to the competent authorities, which precludes the aid concerned from operating as an incentive (judgment of 15 April 2008, Nuova Agricast, C‑390/06, EU:C:2008:224, paragraph 69).
112In the present case, it should be borne in mind as a preliminary point that, contrary to the applicant’s assertions, it has not been demonstrated that the incentive effect and necessity of the aid for BMW were established solely on the basis of a potential grant of aid in an amount of around EUR 50 million (see paragraph 94 above).
113In that regard, it is apparent from the document addressed to the Commission by the Federal Republic of Germany on 5 April 2012 concerning inter alia the analysis carried out by an aduit firm in response to the letters from the Commission dated 17 February and 21 March 2012, that the comparison made between the Munich and Leipzig locations led to the conclusion that there was a difference ‘of EUR 17 million’, which amount comprised an assessment of an entire list of relevant data, as referred to in paragraph 77 of that letter. The factors analysed included the costs of structural investments, planning costs, fixed costs, costs of materials and others. Moreover, the fact that the Leipzig location allowed for a potential increase in production in future had been taken into account in the decision opting for that location.
114As is clear from paragraph 81 of the abovementioned letter of 5 April 2012, which follows from precisely the table showing the difference of EUR 17 million between the two locations in question, the State aid in that amount was a major factor in the decision on where to locate the investment. That State aid was judged necessary for the investment in Leipzig to be made equivalent to Munich, the advantage of which lay in using existing buildings. That same conclusion is apparent from the various internal documents of BMW, on which the Federal Republic of Germany had relied during the administrative procedure, and from the documents of December 2009, including the minutes of a meeting of the Board of 15 December 2009, to which reference is made in in recitals 170, 175 and 176 of the contested decision.
115It is, moreover, in that particular context that a reading must be made of the applicant’s internal proposal, shown in Annex 2 to the same letter of 5 April 2012 (p. 489) and consisting, without further explanation on the point, in seeking State aid in the amount of EUR 50 million. It is also clear that the table shown on that same page refers only to ‘investment and subsidy possibilities’ (Möglichkeiten der Investitionszulage und des Investitionszuschusses), being the possibility of obtaining aid in an amount corresponding to 12.5% of the investment, i.e. EUR 50 million, without a clear link being drawn to the preceding analyses. The same finding holds true for the reiteration of that proposal in Annex 3 to the letter in question, concerning an internal protocol of the applicant, dated 15 December 2009, on pages 496 to 501, and in Annex 4 to the same letter, on page 505, containing conclusions further to an assessment of the possibilities of obtaining tax or other aid in the various locations compared — analyses also referred to by the applicant in paragraph 39 et seq. of its response to the Court’s measures of organisation. In particular, there is nothing in the documents submitted by the Federal Republic of Germany to the Commission or the applicant’s assertions before the Court showing that the amount of EUR 50 million was quantified on the date of the decision on where the forthcoming investment was to be located, having regard to factors such as foreseeable and even probable scenarios that might arise during the investment implementation. It should also be noted, as indicated by the Commission, that the investment in question was planned for Leipzig, a definitive decision was taken and the project has been implemented following approval of EUR 17 million in aid (see also recital 176 of the contested decision).
116It was in those circumstances that subsequently, in its letter of 10 August 2012, the Commission informed the Federal Republic of Germany that, on the basis of information provided to it by the latter, the additional costs associated with the investment in Leipzig could be covered by a lower amount of State aid than what was sought in BMW’s application.
117In the Commission’s submission, the negative effects of the aid, in the amount initially sought, were too great, as they could not be offset by the fact that a regional political goal was being pursued. Those aspects are addressed in detail in recital 174 et seq. of the contested decision.
118The Commission was correct to take account of the fact that paragraph 29 of the Communication from the Commission concerning the criteria for an in-depth assessment of regional aid to large investment projects states that ‘[f]or the regional aid to be proportional, the amount and intensity of the aid [had to] be limited to the minimum needed for the investment to take place in the assisted region’. Paragraph 33 of the same communication states that, for a location incentive, the aid will generally be considered proportionate if it equals the difference between the net costs for the beneficiary company to invest in the assisted region and the net costs to invest in the alternative region(s).
119In the present case, the Commission made no manifest error of assessment with respect to the amount exceeding EUR 17 million in finding that it was not aid that was ‘necessary’ to provide an incentive effect for the investment, according to paragraph 21 of the abovementioned communication, which refers to paragraph 68 of the Guidelines.
120The Commission was correct in finding, in recital 182 of the contested decision, that the principle of proportionality implies that aid in excess of the minimum necessary to trigger the decision to locate the investment in the assisted area must be considered superfluous, because it constituted an unconditional financial subsidy to the aid recipient and served no purpose that would be compatible with the State aid rules.
121It is clear that, in the present case, it has not been demonstrated that, even in excess of EUR 17 million, ‘the aid actually [contributed] to changing the behaviour of the beneficiary, so that it [undertook] (additional) investment in the assisted region concerned’
122The mere fact that the proposal put to the decision-making bodies of BMW included the reference to the possibility of obtaining EUR 50 million in aid cannot be considered decisive in a context in which, concomitantly, the technical documents contained an analysis that found a price differential of EUR 17 million depending on whether the investment was located in Munich or Leipzig, without clear reasons being given for why a higher amount was being sought. The evidence in the case file merely shows, in essence, that the aid that was potentially available for up to EUR 50 million was considered, inter alia by the BMW Board, to be the maximum ceiling that could have been obtained in the circumstances.
123On this last point, it is not sufficient to refer generally to the maximum limit fixed for an investment in an assisted region or to refer, to future risks associated with the investment (such as fluctuations in labour costs), where it is not possible to quantify that information precisely. Nor is it relevant, for the purposes of granting EUR 50 million in aid, to emphasise how it helped to improve the profitability of the project in question, as argued by the applicant at the hearing.
124As regards the applicant’s and the intervener’s reference to Commission Decision C(2014) 5071 final of 23 July 2014 on State aid SA.30743 (2012/C) (ex N 138/2010) — Germany — Financing of infrastructure projects at Leipzig/Halle airport, first of all it is clear that that case involves a different area governed by sector-specific rules (see, inter alia, recitals 8, 315 and 352 of that decision).
125Secondly, the issues arising in that case, including the question as to which part of the investment comes within the public interest, are different from those that arise in the present case (see, inter alia, recital 209 et seq. of the decision referred to in paragraph 124 above). Lastly, as evidenced by recitals 326 and 337 of that decision, the assessment of the incentive effect was also carried out on the basis of an ex ante approach. The same principle was applied in recitals 340 and 341 of that decision in the assessment of the proportionality of the aid. In the substantive points of the analysis of the proportionality of the aid, recital 317 of the decision referred to in paragraph 124 above and recital 340 et seq. indicate that the Commission analysed the question whether ‘the aid was limited to the minimum’. It is only for the sake of completeness that the following is stated inter alia in recital 342 of that decision:‘In any event, the aid intensity must not go beyond the actual funding gap of the investment project.’
126The following may be stated with regard to the documents submitted in the present case by the Federal Republic of Germany to the Commission in September 2012 aimed at proving actual investment costs.
127According to recital 186 et seq. of the contested decision, the Commission states that it is not possible to take account of facts arising a posteriori and therefore belatedly, the probative value of which it also questions. Without its even being necessary to rule on the probative value of the documents in question, this Court holds that the analysis of the proportionality of the aid must in fact also be done on the date of the investment decision, that is to say, in the context in which the recipient undertaking decides on the location of its project.
128This is also evident from the very logic of paragraph 21 of the Communication from the Commission concerning the criteria for an in-depth assessment of regional aid to large investment projects, which refers to paragraph 68 of the Guidelines and requires the Commission to ascertain whether the aid is ‘necessary’ to produce an incentive effect for the investment. Moreover, not only must the ‘incentive’ effect be assessed even before any investment decision, the reference to the question whether the aid is ‘necessary’ in that regard refers back to the analysis of the proportionality of the aid. Contrary to what the applicant suggests, it is impossible to separate those criteria and assess one a priori and the other a posteriori.
129Moreover, the solution proposed by the applicant leads to a situation where even State aid exceeding what is strictly necessary having regard to the objective pursued could be considered to provide the incentive effect and be proportionate on the sole ground that it could result in completion of the project as referred to in paragraph 22 of the Communication from the Commission concerning the criteria for an in-depth assessment of regional aid to large investment projects, without account being taken of the question whether that aid is in reality payment which would improve the financial situation of the recipient undertaking without being necessary for the attainment of the objectives specified in Article 107(3) TFEU (see, to that effect, judgment of 14 January 2009, Kronoply v Commission, T‑162/06, EU:T:2009:2, paragraph 65 and the case-law cited; see also, by analogy, judgment of 14 January 1997, Spain v Commission, C‑169/95, EU:C:1997:10, paragraph 17). That interpretation, which is aimed at analysing both the necessity of the aid and its incentive effect at the time of the investment, is still consistent with paragraph 29 of the Communication from the Commission concerning the criteria for an in-depth assessment of regional aid to large investment projects, and also paragraph 26, which refers inter alia to ‘documents that are submitted to an investment committee and that elaborate on various investment scenarios’.
130Lastly, as rightly observed by the Commission in recital 187 of the contested decision, the analysis of the incentive effect of the aid and its proportionality, in the context of choosing the Leipzig location, did not turn on the investment in the project for producing the i8 model, as that was simply added to the initial project for producing the i3 model, on a date when the decision on the Leipzig location had already been taken. The applicant itself stated before this Court that the initial 2009 decision opting for Leipzig concerned only the i3 model, whereas the decision on production of the i8 model was adopted only in 2011. As stated by the Commission, it was no longer necessary to analyse the decision on the i8 model in the context of the second scenario set out in the Communication from the Commission concerning the criteria for an in-depth assessment of regional aid to large investment projects (see paragraph 88 above), that is to say, in a context where the investment had already been geographically allocated. As observed in that recital, in view of the small number of i8 cars to be produced, only the Leipzig location made sense. Moreover, the Federal Republic of Germany itself had indicated that the volumes of electric cars initially planned would be unchanged by the inclusion of the i8 model and nor had it argued that the analysis of the aid as notified should be changed in that regard.
131In the light of all the foregoing, this complaint put forward by the applicant must be rejected in view of the fact that the proportionality of the total amount of the aid, that is to say, the amount exceeding EUR 17 million of the aid, has not been proven.
– The second complaint
132In the applicant’s submission, taking ‘planning costs’ into account in the assessment of the appropriateness of the aid constitutes a manifest error as the appropriateness should instead be assessed from the perspective of ‘actual costs’. The appropriateness of the aid and eligible costs should always be assessed ex post, so that account is taken of the actual economic situation. In the applicant’s submission, only the incentive effect can be assessed ex ante, on the date of the investment decision. Any other approach would be disproportionate, would not take account of the economic reality and would open the door to abuse in the form of overestimates of planning costs. In the present case, the additional costs were indeed communicated to the Commission as part of the procedure. The applicant adds that, under the provisions of the IZG, it also had to show the actual conditions of implementation of the investment. Lastly, it submits that the Commission proceeded mechanically, without appraising the effects of the aid beyond the cost differential assessed at EUR 17 million. In so doing, it failed to exercise its discretion fully.
133The Commission disputes the applicant’s claims.
134Reference is made here to the Court’s analysis above of the complaints addressed previously. The applicant does not indicate the specific legal basis enabling a finding that, in the present case, account should have been taken of the ‘actual’ costs and not those initially planned at the time of the investment decision.
135Contrary to the applicant’s assertions, it cannot be considered ‘disproportionate’ of the Commission to analyse the information in its possession at the time of assessing whether the aid is necessary and provides an incentive, taking account of the situation on the date of the decision enabling a definitive choice of location for the investment project.
136The applicant’s assertion to the effect that the Commission’s approach ‘would open the door to abuse in the form of overestimates of planning costs’, suffice it to observe that, as evidenced inter alia by recital 25 in fine of the Communication from the Commission concerning the criteria for an in-depth assessment of regional aid to large investment projects, it is for the Commission to ascertain whether or not the planned costs were ‘realistic’ in the context of analysing the different comparative scenarios put forward by the notifying Member State.
137Lastly, as is apparent from recital 28 of the Communication from the Commission concerning the criteria for an in-depth assessment of regional aid to large investment projects, if the aid ‘does not change the behaviour of the beneficiary by stimulating (additional) investment in the assisted region concerned, there is a lack of incentive effect to achieve the regional objective. If the aid has no incentive effect to achieve the regional objective, such aid can be considered as free money for the company’. That recital goes on to state that ‘[t]herefore, in an in-depth assessment of regional aid to large investment projects, aid will not be approved in cases where it appears that the same investment would take place in the region even without the aid’(see recital 3, in fine, of that communication).
138It is apparent from the logic of that provision that it is for the Commission to ascertain whether an aid measure is capable of changing the behaviour of an undertaking to the point of inducing it to make an investment it would not have made without a predefined and ‘necessary’ amount of aid. Taking account of actual costs a posteriori no longer has any impact on that aspect of analysis; at the very most it permits the factors coming within the entrepreneurial risk range of the undertaking receiving the aid to be identified.
139Therefore, the present complaint should also be dismissed.
– The third complaint
140In the applicant’s submission, the Commission was manifestly incorrect in finding, in recital 182 of the contested decision, that aid in excess of what was necessary to trigger the decision to locate the investment in the assisted area had to be considered superfluous, because it constituted free money to the beneficiary which served no purpose that would be compatible with the State aid rules. The applicant argues that that finding follows from the incorrect hypothesis that BMW’s investment would necessarily have been located in Leipzig if the aid had been granted in the amount of EUR 17 million only. It maintains, on the contrary, that the starting hypothesis of the undertaking in question was that it would be granted EUR 49 million in aid, which is what triggered the decision to invest in that assisted region. In the applicant’s submission, the aid pursued an objective that is compatible with the provisions governing State aid, since it fulfilled the conditions laid down in the IZG, which was an aid measure compatible with the internal market under Regulation No 800/2008. The applicant denies that it was attempting to circumvent the rules on aid.
141The Commission disputes the applicant’s claims.
142The Court finds that this complaint may be rejected on the same grounds as the complaints addressed above. Moreover, as observed by the Commission in paragraph 93 of its statement in defence, the investment decision in question had already been adopted by the recipient undertaking on the basis of a promise of aid from the Federal Republic of Germany, subject to definitive authorisation from the Commission. Yet the Commission had authorised only EUR 17 million linked to quantified information showing the cost differentials between the Leipzig and Munich locations, put forward in the documentation used as a basis by the competent bodies within BMW and included in the notification file.
Third part of the second plea in law
143In the applicant’s submission, in the absence of verification and critical observations from third parties during the administrative procedure, the Commission’s observation, in recital 189 of the contested decision, that this additional aid amount of EUR 28257273 would have negative, i.e. highly distortive effects on competition, as it might, in particular, discourage competitors to invest in similar products, thus contributing to the crowding out of private investment in the relevant market, must be deemed to be entirely unfounded. The Commission failed completely to exercise its discretion. In the applicant’s submission, it cannot be the case that all aid in an amount over the cost differential between the locations in question automatically had a distortive effect on competition, in particular without even assessing BMW’s position on the market and without comparing the advantages of the subsidised investment with its negative effects. In the present case, the positive effects of the measure are evident, as it promotes development of the region concerned as well as certain priority objectives of the Union in terms of environmental protection and energy.
144The Commission disputes the applicant’s claims.
145In that regard, it must be remembered that, in order for regional aid to be proportionate, its amount and intensity must be limited to the minimum necessary for the investment to be made in the assisted region. It should be noted, in that context, that recital 30 of the Communication from the Commission concerning the criteria for an in-depth assessment of regional aid to large investment projects, that could correctly be applied by the Commission in the present case (see paragraph 66 above, in fine), refers to the Guidelines and certain ceilings fixed for regional aid, according to the seriousness of the problems affecting those regions. Moreover, recital 33 of that communication states in which situation aid will generally be considered proportionate, and states that that will be when it is equal to the difference between the net costs for the beneficiary company to invest in the assisted region and the net costs to invest in the alternative region(s). Different criteria to be taken into consideration in that regard are listed. Moreover, it must be emphasised that the principle of proportionality, consisting in limiting aid to the minimum necessary so as to reduce distortions in the internal market, is also relevant in other areas involving State aid law (see, by analogy, judgment of 19 July 2016, Kotnik and Others, C‑526/14, EU:C:2016:570, paragraphs 54, 57 and 59).
146In the present case, since the ‘proportionality’ criterion had not been shown as being met for the tranche of aid exceeding EUR 17 million, the Commission did not err in law or make a manifest error in finding that this additional aid amount of EUR 28257273 would have negative, i.e. highly distortive effects on competition, as it might, in particular, discourage competitors to invest in similar products, thus contributing to the crowding out of private investment in the relevant market. The possibility cannot be ruled out that that part of the amount of the aid allowed only to rule out the financing of a ‘risk’ associated with the investment, thereby simply providing free money to the recipient undertaking. In those circumstances, the Commission could assume that there would be a negative effect consisting in a possible distortion of competition and a dissuasive effect for competing private investments, since the aid provides an undue reinforcement of the undertaking’s position on the market by allowing it to finance its needs above what is necessary to pursue the stated purposes, being to provide an incentive for investment in the assisted region. Therefore, the Commission could rightly find that the aid was incompatible with the single market without analysing potential additional positive effects.
147This solution is supported by a reading of recitals 6 and 7 of the Communication from the Commission concerning the criteria for an in-depth assessment of regional aid to large investment projects. Firstly, as stated in recital 6 of that communication, certain large amounts of regional aid for large investment projects could still have significant effects on trade and may lead to substantive distortions of competition.
148Secondly, as observed in recital 7 of the Communication from the Commission concerning the criteria for an in-depth assessment of regional aid to large investment projects and as referred to in paragraph 68 of the Guidelines, the objective of the Commission’s formal investigation, which uses an individualised approach, is precisely to carry out a detailed verification ‘that the aid is necessary to provide an incentive effect for the investment’ and ‘that the benefits of the aid measure outweigh the resulting distortion of competition and effect on trade between Member States’. As those conditions are cumulative, it is only if the answer to the first part referred to is positive that the Commission must proceed to an assessment of the second part. Similarly, recital 52 of the same communication states that it was only once it had ‘established that the aid [was] necessary as an incentive to carry out the investment in the region concerned’ that it would balance the positive effects of the regional investment aid to a large investment project with its negative effects.
149Next, the Court finds that, as the Commission has correctly explained how the aid in question was liable to distort competition, it did not have to conduct an economic analysis of the actual situation on the market concerned (see, by analogy, judgment of 30 April 2009, Commission v Italy and Wam, C‑494/06 P, EU:C:2009:272, paragraph 58), contrary to the applicant’s submissions.
150Therefore, the present complaint put forward by the applicant must also be rejected.
The fourth part of the second plea
151The applicant argues, in essence, that should the Court hold that the aid was compatible with the internal market only in so far as it allowed for compensation for additional costs, quod non, it should be observed that BMW had indicated, through correspondence from the Federal Republic of Germany of 28 September 2012, that at the time the investment cost for the Leipzig location was EUR 46 million higher than the cost of a comparable investment in Munich. In the applicant’s submission, that correspondence contains a detailed breakdown of the amount of around EUR 29 million — to be added to the planning costs of EUR 17 million estimated on the date of the location decision adopted in December 2009 — which corresponds to the net additional expenses arising from the location. The amount of EUR 45257260.13 requested therefore seems to be completely justified.
152Regarding the Commission’s assessments, referred to in recital 178 of the contested decision, to the effect that ‘the documents submitted by [the Federal Republic of] Germany in September 2012 and listing the additional [costs] are neither genuine nor contemporary to any investment decision, as they were established only in September 2012’, the applicant submits firstly that, on the contrary, they were extracts from annual accounting documents of BMW, reviewed by an accounting firm. Secondly, those documents were drawn up in order for the Commission to assess the appropriateness of the aid in question. In the applicant’s submission, it was clearly appropriate to take account also of the additional costs associated with production capacities for the i8 model. The intervener in essence supports the applicant’s argument.
153The Commission disputes the applicant’s claims.
154This complaint in essence reiterates aspects addressed earlier. As the letter in question, sent by the Federal Republic of Germany to the Commission, is dated 28 September 2012, it cannot be deemed relevant to the issue whether ‘the aid [was] necessary to provide an incentive effect for the investment’, as referred to in recital 7 of the Communication from the Commission concerning the criteria for an in-depth assessment of regional aid to large investment projects. As observed by the Commission, it is clear that it is only if the first investment, intended for the production of i3 cars, which is relevant in the analysis, in accordance with the second criterion set out in recital 22 of that communication, aimed at establishing whether the aid provided an incentive to locate an investment project in the region considered rather than elsewhere because it compensated for the net handicaps and costs associated with the choice of a location in the region receiving the aid. The applicant has not argued autonomously that the manufacturing project for the i8 cars was also analysed comparatively in terms of the production location.
155In that regard, it is worth noting also recital 187 of the contested decision, which states, in essence, that in 2009, the i8 model was not yet included in the decision to invest in the Leipzig location. It was only once the decision to locate in Leipzig had been taken by BMW for the i3 model that an additional decision had added the i8 model. There is nothing in the documents submitted by the Federal Republic of Germany to indicate that that second decision also concerned an autonomous choice of region; rather it required an appropriate decision as to whether additional i8 model should be produced at the Leipzig location already selected. Such a situation more resembles the first scenario set out in paragraph 22 of the Communication from the Commission concerning the criteria for an in-depth assessment of regional aid to large investment projects.
156Moreover, no additional, separate aid had been requested specifically for the i8 model and the Federal Republic of Germany had confirmed that the addition of that model to the initial project would not lead to an increase in production volumes of electric cars at the Leipzig location (see, to that effect, the letter of 25 May 2011 from the Federal Republic of Germany addressed to the Commission).
157In the letter addressed to the Commission on 25 May 2011, the Federal Republic of Germany concluded that, even if the production of i8 cars had to be somewhere near the upper range of the limits provided, during the first two years of production the total estimate of the investment would not be exceeded. It stated expressly that the production volumes would be included for the Leipzig location, both for the i3 model and the i8 model. It states that there were no plans to amend the notification in that regard.
158Moreover, the Federal Republic of Germany had argued that it was only after certain effects associated with the global financial crisis had passed that the project had taken on a more innovative — and even luxurious — dimension, including carbon technologies and the creation of a new Innovation and Technology Centre in Leipzig, involving the planning of the new i8 project. It was in that context that, in 2010, BMW decided to add there the production of the innovative i8 model and the production of plastics, which had the effect of increasing investment costs considerably as compared to what was initially planned.
159Although the Federal Republic of Germany goes on to explain that it would have been possible to produce the i8 model at lower cost than at the Munich location, no comparative evidence was put forward in that regard, contrary to what had been done at the time of the i3 investment decision in Leipzig. Nor has it been proven that the Commission’s assertion that it was reasonable to ‘piggyback’ production of the i8 model onto the Leipzig location, already planned for the i3 model, given the overlap between the production materials and the methods, is the result of a manifest error of assessment.
160In those circumstances, the Commission was correct in finding that only the initial cost forecasts had to be considered relevant. Thus, the new assessment of actual costs cannot be taken into consideration, even though the Commission was informed of it before the adoption of the contested decision.
161Consequently, the present complaint must be rejected and, accordingly, the second plea in law must be rejected in its entirety.
The third plea in law: in the alternative, infringement of Article 108(3) TFEU and Regulation No 800/2008 resulting from the limitation of the amount of the aid to a lower amount than that exempted from the notification obligation
162In the applicant’s submission, it could obtain from the Federal Republic of Germany, under the investment project described in the contested decision, aid based ‘on the aid scheme authorised by Regulation No 800/2008’ and ‘listed in the IZG’ up to the threshold of EUR 22.5 million, provided that the conditions laid down in the IZG were met. It argues that this was so ‘irrespective of any notification, in accordance with Article 6(2) of Regulation No 800/2008’. Therefore, in the alternative, the applicant asks the Court to annul the contested decision in so far as the Commission refuses expressly to allow the EUR 22.5 million in aid to be allocated to BMW.
163The applicant submits that, in so doing, the Commission prohibits the Federal Republic of Germany from granting the EUR 22.5 million in aid, contrary to what would have occurred without notification or if it had withdrawn that notification. The applicant submits that that is an infringement of Article 108(3) TFEU, Regulation No 800/2008 and also a misuse of power that undermines unlawfully the Federal Republic of Germany’s powers. In the applicant’s submission, as the IZG ‘is existing aid’, the Commission can examine only specific measures, notified because they exceed the notification threshold. Under that threshold, aid should always be considered compatible with the internal market under the IZG. The intervener in essence supports the applicant’s assertions.
164The Commission disputes the arguments of the applicant and the intervener.
165In that regard, it should be recalled, first, that the obligation to notify is one of the fundamental features of the system of control put in place by the FEU Treaty in the field of State aid. Under that system, Member States are under an obligation, first, to notify to the Commission each measure intended to grant new aid or alter aid for the purposes of Article 107(1) TFEU and, secondly, not to implement such a measure, in accordance with Article 108(3) TFEU, until that institution has taken a final decision on the measure (judgment of 21 July 2016, Dilly’s Wellnesshotel, C‑493/14, EU:C:2016:577, paragraph 31).
166The obligation of the Member State concerned to notify any new aid to the Commission is set out in Article 2 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] (OJ 1999 L 83, p. 1) (judgment of 21 July 2016, Dilly’s Wellnesshotel, C‑493/14, EU:C:2016:577, paragraph 32).
167In accordance with Article 109 TFEU, the Council of the European Union is authorised to make any appropriate regulations for the application of Article 107 TFEU and Article 108 TFEU and may in particular determine the conditions in which Article 108(3) TFEU is to apply and the categories of aid exempt from the procedure under that provision (judgment of 21 July 2016, Dilly’s Wellnesshotel, C‑493/14, EU:C:2016:577, paragraph 33).
168In addition, as provided in Article 108(4) TFEU, the Commission may adopt regulations relating to the categories of State aid that the Council has, pursuant to Article 109 TFEU, determined may be exempt from the procedure provided for in Article 108(3) TFEU (judgment of 21 July 2016, Dilly’s Wellnesshotel, C‑493/14, EU:C:2016:577, paragraph 34).
169Consequently, Council Regulation (EC) No 994/98 of 7 May 1998 on the application of Articles [107 TFEU and 108 TFEU] to certain categories of horizontal State aid (OJ 1998 L 142, p. 1), in accordance with which Regulation No 800/2008 was subsequently adopted, had itself been adopted pursuant to Article 109 TFEU (judgment of 21 July 2016, Dilly’s Wellnesshotel, C‑493/14, EU:C:2016:577, paragraph 35).
170It follows from this that, notwithstanding the obligation of prior notification of each measure intended to grant or alter new aid, which is incumbent on the Member States under the Treaties and is one of the fundamental features of the system of monitoring in the field of State aid, if an aid measure adopted by a Member State fulfils the relevant conditions provided for in Regulation No 800/2008, that Member State may rely on the possibility of being exempt from its obligation to notify. Conversely, it is apparent from recital 7 of Regulation No 800/2008 that State aid not covered by that regulation should remain subject to the obligation to notify laid down in Article 108(3) TFEU (judgment of 21 July 2016, Dilly’s Wellnesshotel, C‑493/14, EU:C:2016:577, paragraph 36).
171Consequently, as a qualification of the general rule that there is the obligation to notify, Regulation No 800/2008 and the conditions laid down by it must be interpreted strictly (judgment of 21 July 2016, Dilly’s Wellnesshotel, C‑493/14, EU:C:2016:577, paragraph 37).
172Such an approach is supported having regard to the aims of the general block exemption regulations, as set out in recitals 4 and 5 of Regulation No 994/98. While the Commission is authorised to adopt such regulations, with a view to ensuring efficient supervision of the competition rules concerning State aid and simplifying administration, without weakening Commission monitoring in that area, the aim of such regulations is also to increase transparency and legal certainty. Fulfilling the conditions laid down by those regulations, including, therefore, those laid down by Regulation No 800/2008 enables those aims to be fully achieved (judgment of 21 July 2016, Dilly’s Wellnesshotel, C‑493/14, EU:C:2016:577, paragraph 38).
173In the present case, the Court finds, as regards more specifically regional aid measures exceeding the thresholds laid down, thereby coming under the obligation of individual notification to the Commission pursuant to Article 6(2) of Regulation No 800/2008, that they must not be assessed thereunder, as they are not covered by that regulation; rather, they must be assessed in accordance with the Communication from the Commission concerning the criteria for an in-depth assessment of regional aid to large investment projects, where the conditions laid down in the Guidelines are met and, more generally, in the light of the requirements laid down in Article 107(3) TFEU (see also paragraphs 65 to 67 above).
174As regards the application of Article 6(2) of Regulation No 800/2008, it should be emphasised that it must be read in the light of and in the context of Article 6(1) of that same regulation, which states that ‘[t]his Regulation shall not apply to any individual aid, whether granted ad hoc or on the basis of a scheme, the gross grant equivalent of which exceeds the [thresholds laid down]’. On the other hand, and contrary to what the applicant suggests, it is only for aid complying with the regulation and not exceeding the notification threshold that reference should be made to recital 5 therein, which states the following:‘This Regulation should exempt any aid that fulfils all the relevant conditions of this Regulation, and any aid scheme, provided that any individual aid that could be granted under such scheme fulfils all the relevant conditions of this Regulation. In order to ensure transparency, as well as more efficient monitoring of aid, any individual aid measure granted under this Regulation should contain an express reference to the applicable provision of Chapter II of [this Regulation] and to the national law on which the individual aid is based.’
175Similarly, it should be borne in mind that, under the Guidelines, including paragraph 64 thereof, Member States are required to notify individually to the Commission certain aid for large investment projects under an existing aid scheme if the aid fulfils the conditions as defined by those Guidelines.
176In those circumstances, and contrary to the contentions of the applicant and the intervener, it cannot be held that the aid in question enjoyed an exemption because it came under Regulation No 800/2008 or the IZG. As it exceeded the threshold for triggering mandatory notification, the Commission was correct in finding that it had to assess it as individual aid and not as aid coming under the regulation on block exemptions or as authorised existing aid (see, by analogy, Opinion of Advocate General Wathelet in Commission v Italy, C‑467/15 P, EU:C:2017:24, points 61 to 73 and the case-law cited).
177The Court holds that, in the present case, none of the provisions referred to by the applicant or the intervener substantiates their assertion that the Commission exceeded its powers in assessing, as a whole, the notified aid in terms of its compliance with the internal market and not solely in terms of the amount exceeding the notification threshold. It should be noted in particular in that regard that the fact that the Commission takes the decision to authorise aid notified to it entails significant, mandatory legal consequences, subject only to potential challenge before the EU Courts. It is a very different procedural scheme from the one applying to block exemptions, which involves an approach based on a presumption of compliance with the internal market. In circumstances such as those of the present case, a presumption of compliance of the aid up to a certain threshold cannot prevail over an individual assessment, as it is common ground that the latter came under the notification obligation, that is to say, it was judged prima facie to be of particular importance in terms of its potential effects on competition.
178Moreover, it is specifically stated in recital 56 of the Communication from the Commission concerning the criteria for an in-depth assessment of regional aid to large investment projects that ‘[t]he Commission may decide either to approve, condition or prohibit the aid’. That same recital goes on to state, firstly, that, if it adopts a conditional decision pursuant to Article 7(4) of Regulation No 659/1999, it may attach conditions to limit the potential distortion of competition and ensure proportionality. In particular, it may reduce the notified amount of aid or aid intensity to a level considered to be proportional and thus compatible with the internal market.
179Contrary to the applicant’s assertions, the abovementioned conclusions are not invalidated by the reference made to the footnote relating to paragraph 56 of the Communication from the Commission concerning the criteria for an in-depth assessment of regional aid to large investment projects, stating that, ‘[w]hen the aid is granted on the basis of an existing regional aid scheme, it is however to be noted that the Member State retains the possibility to grant such aid up to the level which corresponds to the maximum allowable amount that an investment with eligible expenditure of EUR 100 million can receive under the applicable rules’. That footnote cannot be held to prevail over the fact that the aid in question in the present case, notified pursuant to Article 6(2) of Regulation No 800/2008, had to be assessed as individual aid and not as aid granted under an approved regional aid scheme. In that regard, it was held above that, as per that communication and as part of the analysis carried out under Article 107(3) TFEU, it was for the Commission to assess inter alia the incentive effect and proportionality of the aid. It is, moreover, on that basis that the Commission considered that the aid was compatible with the internal market only up to EUR 17 million, corresponding to the cost differential between the Munich location and the Leipzig location, assessed on the date of the investment and location decision.
180Similarly, for the reasons given, the intervener’s submissions, put forward in paragraphs 61 to 67 of the statement in intervention, claiming in essence that in the present case the aid in question, up to the notification threshold, came under an existing aid scheme that was supposed to have already been analysed by the Commission for its compliance with the internal market, must be rejected. On the contrary, the Court finds that the notified aid in the present case, which exceeded the thresholds laid down for individual notification, must be held to come within a reservation for approval or exemption, which applied to the general aid scheme in question, namely the IZG (see, by analogy, judgment of 6 July 1995, AITEC and Others v Commission, T‑447/93 to T‑449/93, EU:T:1995:130, paragraphs 124 to 131).
181In those circumstances, the conclusion is that the Commission was correct in finding that only an individual analysis could legitimise such an aid measure or part of it. It is, moreover, clear that the need for such an examination is in keeping with the purpose of Article 107 TFEU which, as a competition rule, is aimed in principle at preventing grants of aid by Member States from distorting competition or affecting trade in the internal market. That approach is also in keeping with the principles apparent in the judgment of 6 March 2002, Diputación Foral de Álava and Others v Commission (T‑127/99, T‑129/99 and T‑148/99, EU:T:2002:59, paragraphs 228 and 229), according to which aid exceeding the ceilings laid down by an aid scheme, even in the case of an approved general aid scheme, cannot be considered to be covered entirely by that scheme.
182Therefore, the third plea put forward by the applicant must also be rejected, without it being necessary, in any event, to rule on the merits of the question whether, had the aid project in question been limited to EUR 22.5 million, it might have satisfied the conditions laid down in the IZG, as must accordingly the action in its entirety.
Costs
183Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
184Since the Commission has applied for costs and the applicant has been unsuccessful, the latter must be ordered to bear its own costs and to pay those incurred by the Commission.
185The intervener shall bear its own costs, in accordance with Article 138(3) of the Rules of Procedure.
Operative part
On those grounds,THE GENERAL COURT (Fifth Chamber)hereby:
1.Dismisses the action;
2.Orders Bayerische Motoren Werke AG to bear its own costs and to pay those incurred by the European Commission;
3.Orders the Freistaat Sachsen to bear its own costs.
Delivered in open court in Luxembourg on 12 September 2017.
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