«(ECSC and EC Treaties – State aid – Composition of the Commission – Notification to the Commission of aid and planned aid – Concept and substance of notification – Scope of the ECSC Treaty – Fifth Steel Aid Code – Powers of the Commission ratione temporis – Article 87(2)(c) EC – Privatisation procedure – Private investor test – Invitation to bid – Transparency)»

1.. Commission – Composition – One of its Members granted leave of absence – No effect on the legality of decisions adopted by the College in accordance with the provisions of its Rules of Procedure (Arts 9(1), second subpara., CS and 12, paras 1, 2 and 4 CS; Arts 213(1), second subpara., EC and 215, paras 1, 2 and 4 EC)

2.. State aid – Recovery of unlawful aid – Aid granted in breach of the procedural rules in Article 88 EC – Possibility of legitimate expectation on the part of recipients – Protection – Conditions and limits (Arts 87 EC and 88 EC)

3.. ECSC – Steel aid – Planned aid – Examination by the Commission – Preliminary stage – Limited to two months unless the Member State concerned agrees to an extension (Art. 88(3) EC; General Decision No 2496/96, Art. 6(5) and (6))

4.. Acts of the institutions – Statement of reasons – Obligation – Scope – ECSC decision – Commission decision on State aid (Art. 5, second para., CS and Art. 15, first para., CS; Art. 253 EC)

5.. ECSC – Scope of the Treaty – Undertakings engaged in production in the coal and steel industry – Included (Arts 4(c) CS, 80 CS and 81 CS; Annex I CS)

6.. ECSC – Aid – Prohibited – Conditions – Impairment of competition – Excluded (Art. 4(c) CS)

7.. ECSC – Production – Products – Definition – Consequences (Art. 4(c) CS and 80 CS; Annex I CS)

8.. ECSC – Scope of the Treaty – Rules on State aid – Application to all the activities of a steel undertaking – Conditions (Art. 4(c) CS)

9.. ECSC – Steel aid – Authorisation by the Commission – Conditions – Notification – Time-limit not complied with – Effects (General Decisions Nos 257/80, 3484/85, 3855/91 and 2496/96)

10.. State aid – Special system applicable to the activities of the Treuhandanstalt – Scope

11.. State aid – Prohibition – Derogations – Aid granted to certain areas affected by the division of Germany – Scope of the derogation – Strict interpretation – Economic disadvantages caused by the isolation created by the frontier established between the two zones (Art. 87(1) and 2(c) EC)

12.. State aid – Definition – Assessment on the basis of the private investor criterion (Art. 87(1) EC)

JUDGMENT OF THE COURT 28 January 2003 (1)

((EC and ECSC Treaties – State aid – Composition of the Commission – Notification to the Commission of aid and planned aid – Concept and substance of notification – Scope of the ECSC Treaty – Fifth Steel Aid Code – Powers of the Commission ratione temporis – Article 87(2)(c) EC – Privatisation procedure – Private investor test – Invitation to bid – Transparency))

In Case C-334/99,

applicant,

v

defendant,

APPLICATION for annulment of Articles 4 to 7 of Commission Decision 1999/720/EC, ECSC of 8 July 1999 on State aid granted by Germany to Gröditzer Stahlwerke GmbH and its subsidiary Walzwerk Burg GmbH (OJ 1999 L 292, p. 27),

THE COURT,,

composed of: G.C. Rodríguez Iglesias, President, J.-P. Puissochet, M. Wathelet, R. Schintgen and C.W.A. Timmermans (Presidents of Chambers), C. Gulmann, D.A.O. Edward, A. La Pergola, V. Skouris (Rapporteur), S. von Bahr and J.N. Cunha Rodrigues, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

having regard to the Report for the Hearing, after hearing oral argument from the parties at the hearing on 27 November 2001, at which the Federal Republic of Germany was represented by B. Muttelsee-Schön, acting as Agent, assisted by T. Lübbig, Rechtsanwalt, and the Commission by D. Triantafyllou,

after hearing the Opinion of the Advocate General at the sitting on 24 January 2002,

gives the following

The first plea: unlawful composition of the Commission

Arguments of the parties

Findings of the Court

The second plea: breach of the duty to act within a reasonable time and of the principles of sound administration and legal certainty during the administrative procedure, and breach of the duty to state reasons

The first part

Arguments of the parties

Findings of the Court

The second part

The third plea in law: application of the rules of the ECSC Treaty to areas of GS's production which do not fall within the scope of that Treaty

Arguments of the parties

Findings of the Court

The fourth plea: incorrect assessment, under the Fifth Steel Aid Code, of the investment aid for the areas of GS's production falling within the scope of the ECSC Treaty

The fifth plea: incorrect assessment of the investment aid for the areas of GS's production not falling within the scope of the ECSC Treaty

The first part

The second part

The sixth plea: incorrect assessment, under the rules applicable to aid, of the GS privatisation procedure

Findings of the Court

On those grounds,

THE COURT

hereby:

Rodríguez Iglesias

Puissochet

Wathelet

Schintgen

Timmermans

Gulmann

Edward

La Pergola

Skouris

von Bahr

Cunha Rodrigues

Delivered in open court in Luxembourg on 28 January 2003.

R. Grass

G.C. Rodríguez Iglesias

Registrar

President