EUROPEAN COMMISSION Competition DG Brussels, 07.VI.2006 D(2006) 1748 In the published version of this decision, some information has been omitted, pursuant to articles 24 and 25 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty, concerning non-disclosure of information covered by professional secrecy. The omissions are shown thus [ ]. PUBLIC VERSION WORKING LANGUAGE This document is made available for information purposes only. Subject: State aid N 426/2005 Germany EverQ GmbH Thalheim Dear Sir, 1. PROCEDURE By letter dated 29 August 2005, registered on 1 September 2005 (SG/2005/7811), the German authorities notified to the Commission their intention to grant regional investment aid in favour of the company EVERQ GmbH. The investment aid comprises an SME bonus of 15 % pursuant to Article 4(3)(b) of the Commission Regulation (EC) No 70/2001 on the application of Articles 87 and 88 of the EC Treaty to state aid to small and medium-sized enterprises (hereinafter referred to as SME Regulation ) 1. The Commission asked for additional information by letters dated 30 September 2005, 23 December 2005 and 15 February, which was provided by letters dated 28 October 2005, 23 January 2006 and 4 April 2006. 1 Commission Regulation (EC) No 70/2001 of 12 January 2001 on the application of Articles 87 and 88 of the EC Treaty to state aid to small and medium-sized enterprises, as amended by Commission Regulation (EC) No 364/2004 (OJ L 10, 13.1.2001, p. 33 and OJ L 63, 28.2.2004, p. 22). Seiner Exzellenz Herrn Frank-Walter STEINMEIER Bundesminister des Auswärtigen Werderscher Markt 1 D - 10117 Berlin Commission européenne, B-1049 Bruxelles Belgique/Europese Commissie, B-1049 Brussel België Telefon: 00 32 (0) 2 299.11.11 Commission européenne, B-1049 Bruxelles / Europese Commissie, B-1049 Brussel - Belgium. Telephone: (32-2) 299 11 11.
2. DESCRIPTION 2.1. The beneficiary The beneficiary of the aid is EVERQ GmbH, located in Thalheim, Sachsen- Anhalt, which is an assisted area pursuant to Article 87(3)(a) of the EC Treaty with a maximum aid intensity of 35%. EVERQ GmbH is active in the solar cells production sector (NACE code 32.10). The company was established in December 2004 by Q-Cells AG (Thalheim, Germany) that owned 24.9% of the shares and Evergreen Solar Inc. (Marlboro MA, USA) that owned 75.1% of the shares at that time. Evergreen Solar Inc. owns in addition 100% shares in Evergreen Solar GmbH Berlin. On 25.11.2005 the shareholder structure changed. The shareholders of EVERQ GmbH are now the companies Renewable Energy Corporation ASA (Norway), Q-Cells AG (Thalheim, Germany) and Evergreen Solar Inc. (Marlboro MA, USA). Renewable Energy Corporation ASA owns a share of 15 %, Q-Cells AG owns 21%, the remaining 64% of the shares are held by Evergreen Solar Inc. Q-Cells AG and Renewable Energy Corporation ASA have a joint shareholder, the venture capital company Good Energies Investment. This company holds 16% of the shares of Q-cells AG and 39% of the shares of Renewable Energy Corporation (figures on 7.3.2006). EverQ GmbH 64% 15% 21% Evergreen Solar Inc. Renewable Energy Corporation ASA Q-Cells AG 100% 39% 16% Evergreen Solar Good Energies GmbH Berlin Investment The German authorities confirmed that no further relationship between Q- Cells AG, Renewable Energy Corporation ASA and Evergreen Solar Inc. exists besides having a share in EVERQ GmbH. In the year 2004, Evergreen Solar Inc. (including Evergreen Solar GmbH Berlin) had 215 employees 2, a turnover of EUR 18.9 million and a balance 2 The 2004 annual report of Evergreen Solar Inc. mentions 250 employees, the figure of 215 is calculated according to article 6 of the annex to the SME regulation: The number of persons employed corresponds to the number of annual working units (AWU), that is to say, the number of full-time workers employed during one year with part-time and seasonal workers being fractions of AWU. 2
sheet of EUR 36.5 million 3. Evergreen Solar is quoted on the NASDAQ stock exchange and its market capitalization has risen considerably since end 2004. In the year 2004, EverQ GmbH had no employees, no turnover and a balance sheet of EUR 0.025 million. At the time of the notification, EVERQ GmbH had about 15 employees and a turnover of 9.2 million. 2.2. The project EVERQ GmbH plans the construction of a new plant in Thalheim to manufacture silicon-wafer, solar cells and solar modules based on the String- Ribbon-technology. The total costs of the project are 61.328 million, [ ] *. No aid is requested for the land so the eligible investment costs on which the assessment will be based, are 60.87 million. The construction of the new plant in Thalheim started in December 2004 and the factory is intended to be functional by 31 December 2007. 2.3. Aid intensity The German authorities intends to grant aid amounting up to 27.54 million in the form of a direct investment grant, which equals 45.2 % of the overall eligible investment costs. 2.4. Financing plan of the project (in euro) Own resources 17 787 5000 SME bonus 14 142 000 Investment aid 13 398 800 Bank loan 8 000 000 Other financing 8 000 000 Total financing 61 328 300 No changes to the financing plan can be made without the approval of the German authorities. 3 The 2004 turnover figure is calculated from the total of USD 23.53 million using the average exchange rate of 2004 which was 1.2439 dollar for 1 euro. The 2004 balance sheet figure is calculated from the total of USD 49.72 million using the exchange rate applicable on 31.12.2004 which was 1.3621 dollar for 1 euro. * Covered by the obligation of professional secrecy. 3
2.5. Legal basis According to German authorities, the intended financial measures in favour of EVERQ GmbH will be granted on the basis of the scheme Improvement of the regional economic structure 4 (Gemeinschaftsaufgabe Verbesserung der regionalen Wirtschaftsstruktur) (hereinafter referred to as GA scheme ) and the Investment Premium Law 2005 5 ( Investitionszulagengesetz 2005 ) which were approved by the Commission as compatible with the common market in accordance with Article 87(3)(a) and (c) of the EC Treaty. 3. ASSESSMENT By notifying this case the German authorities fulfilled their procedural obligation accepted in the context of the approval of the GA scheme as mentioned in point 3.13 of the respective Commission decision. The said provision stipulates an individual notification obligation if the conditions of Article 6 of the SME Regulation are fulfilled. This Article lays down that an individual aid has to be notified if the total eligible costs are at least 25 million, or the total gross aid amounts to at least 15 million. As the total eligible cost is expected to amount to 60.87 million and total gross aid amounts to 27.54 million, the proposed project exceeds the thresholds of Article 6 of the SME Regulation triggering the individual notification obligation. Since the notification obligation follows from the SME regulation, the Commission limits its assessment to the question whether the beneficiary qualifies as an SME in order to be entitled to receive the SME bonus of 15 % according to Article 4(3)(b) of the SME Regulation. 3.1. Criteria to qualify for the SME bonus Article 87(1) of the EC Treaty refers to the concept of an undertaking to define the beneficiary of the aid. As confirmed by the European Court of Justice 6, the undertaking may not be limited to one distinct legal entity but may encompass an economic group of companies. Germany considers EVERQ GmbH to be the undertaking receiving aid and argues that this undertaking is an SME in the sense of the Commission recommendation of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises ( SME recommendation ). 7 Annex I of the SME regulation is an extract of the SME recommendation. In order to determine whether EVERQ GmbH is an autonomous enterprise or whether it forms an economic group with any other company ( linked or 4 Gesetz über die Gemeinschaftsaufgabe (GA) Verbesserung der regionalen Wirtschaftsstruktur vom 6. Oktober 1969 in Verbindung mit den einschlägigen Bestimmungen von Teil II des 31. Rahmenplans zur GA, the latest prolongation approved by the Commission decision under the number N 642/2002 on 1.10.2003 (OJ C 284, 27.11.2003, p. 2). 5 State aid N 142a/2004 (OJ C 235, 23.9.2005, p. 3). 6 ECJ Case of 14.11.1984, Intermills/Commission, 323/82, ECR 3808. 7 OJ L 124, 20.5.2003, p. 36. 4
partner enterprises), it is necessary to examine various factors. Article 3 of the Annex to the SME recommendation describes which types of enterprises (linked and partner enterprises) have to be taken into consideration in calculating staff numbers and financial amounts. Data of linked enterprises has to be fully included in the calculation regarding the thresholds, whereas data of partner enterprises is included proportionally to the percentage interest in the capital or voting rights aggregated. 3.1.1. Renewable Energy Corporation ASA and Q-Cells AG Q-Cells AG holds less than 25% of the capital and voting rights in EVERQ GmbH, therefore the undertaking cannot be considered as partner or linked enterprises to EVERQ GmbH pursuant to Article 3 of the Annex to the SME recommendation. Moreover, the venture capital company Good Energies Investment holds only 16% of the shares of Q-cells AG. The same reasoning can be made for Renewable Energy Corporation ASA after the restructuring of the shareholdings in 2005. In this case, the venture capital company Good Energies Investment holds 39% of the shares of Renewable Energy Corporation. However, since Renewable Energy Corporation holds only 15% of the capital and voting rights in EVERQ GmbH, the undertaking cannot be considered as partner or linked enterprises to EVERQ GmbH pursuant to Article 3 of the Annex to the SME recommendation. As stated above, the German authorities also confirmed that no further relationship between Q-Cells AG, Renewable Energy Corporation ASA and Evergreen Solar Inc. exists. As a consequence no data from Renewable Energy Corporation ASA and Q-Cells AG is to be taken into consideration with regard to the question whether or not the newly established EVERQ GmbH is in fact a SME. 3.1.2. Evergreen Solar Inc. Evergreen Solar Inc. holds the majority of the shareholders voting rights in EVERQ GmbH. Pursuant to Article 3(3) of the Annex to the SME recommendation the undertakings are thus considered to be linked enterprises. The fact that Evergreen Solar Inc. and EVERQ GmbH are linked enterprises means that 100% of the linked enterprise s data must be added to determine if EVERQ GmbH complies with the staff headcount and financial thresholds as set out in Article 2 of the Annex to the SME recommendation. 3.1.3. Staff headcount and financial ceilings According to Article 2 of the Annex to the SME recommendation, small and medium-sized enterprises are defined as enterprises which 5
have fewer than 250 employees, and have an annual turnover not exceeding EUR 50 million and/or an annual balance-sheet total not exceeding EUR 43 million. According to Article 4 of the Annex to the SME recommendation, the data relevant for the staff headcount and the financial amounts to determine whether the beneficiary of an aid is an SME are those relating to the last approved accounting period and calculated on an annual basis. For newly established enterprises, whose accounts have not been yet approved, a bona fide estimation shall be made in the course of the financial year. The status of an SME is acquired or lost if an enterprise at the final balance sheet date exceeds or falls below the employee thresholds or financial ceilings repeatedly over two consecutive financial years. The notification to grant aid to EVERQ GmbH was submitted on 29 August 2005, thus the latest available approved data in the present case relates to the year 2004. In the year 2004, Evergreen Solar Inc. (incl. Evergreen Solar GmbH Berlin) had 215 employees, an annual turnover of 18.9 million and a balance sheet total of 36.5 million. In the same year, EverQ GmbH had no employees, no turnover and a balance sheet of EUR 0.025 million. Hence the threshold of 250 employees laid down in the SME recommendation is not exceeded. Both thresholds for the turnover (maximum 50 million) and the balance sheet (maximum 43 million) laid down in the SME recommendation are also respected. The Commission concludes that the evidence provided by the German authorities shows that the beneficiary complies with the definition of an SME under the SME recommendation at the time of the notification and that the aid including the SME bonus was necessary in order to ensure the financing of the total investment. In the light of the available evidence, the beneficiary is entitled to receive the SME bonus according to Article 4(3)(b) of the SME Regulation, provided that all other relevant conditions of the aid schemes are complied with. 4. DECISION The Commission has decided, on the basis of the foregoing assessment, that the aid in the form of an SME bonus to EverQ GmbH fulfils the criteria to be considered compatible with the EC Treaty. If this letter contains confidential information, which should not be disclosed to third parties, please inform the Commission within fifteen working days of the date of receipt. If the Commission does not receive a reasoned request by that deadline, you will be deemed to agree to the disclosure to third parties and to the publication of the full text of the letter in the authentic language on the Internet site: http://ec.europa.eu/community_law/state_aids/index.htm. Your request should be sent by registered letter or fax to: 6
European Commission Directorate-General for Competition State aid Greffe Rue Joseph II, 70 B-1000 Brussels Fax No: + 32 2 296 12 42 For the Commission Neelie Kroes Member of the Commission 7