23.11.2020

Official Journal of the European Union

C 399/19

(Case C-516/19) (1)

(Reference for a preliminary ruling - State aid - Articles 107 and 108 TFEU - Regulation (EU) No 651/2014 - Exemption of certain categories of aid compatible with the internal market - Annex I - Small and medium-sized enterprises (SMEs) - Definition - Independence test - Article 3(1) - Autonomous enterprise - Article 3(4) - Not included - Indirect control of 25 % of the capital or voting rights by public bodies - Concepts of ‘control’ and ‘public bodies’)

(2020/C 399/26)

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: NMI Technologietransfer GmbH

Defendant: EuroNorm GmbH

Operative part of the judgment

Article 3(4) of Annex I to Regulation (EU) No 651/2014 of 17 June 2014 declaring certain categories of aid compatible with the internal market in application of Articles 107 and 108 [TFEU] must be interpreted as meaning that it does not preclude national legislation which excludes an enterprise from being regarded as a small or medium-sized enterprise (SME), where the body of the enterprise which holds the main part of its capital, although it is not authorised to ensure its day-to-day management, is composed for the most part of members representing public bodies, within the meaning of that article, so that the latter jointly exercise, by that sole fact, indirect control, within the meaning of that article, over the former enterprise, it being understood that:

first, the concept of ‘public body’ in that article is intended to include entities such as universities and higher education establishments as well as a chamber of commerce and industry, provided that those entities are created to specifically meet needs in the general interest, have legal personality and are either financed for the most part or controlled directly or indirectly by the State, by regional or local authorities or by other public bodies, it being irrelevant in that respect that the persons appointed on the proposal of those entities serve on a voluntary basis within the enterprise concerned, since it is in their capacity as members of the latter that they have been proposed and appointed, and

second, for the purposes of the existence of such control, it is sufficient for public bodies to hold jointly, albeit indirectly, at least 25 % of the capital or voting rights of the enterprise concerned, in accordance with the terms of the statutes of the enterprise which exercises direct control over it, without it being necessary to examine, moreover, whether those bodies are able to influence and coordinate the effective exercise by their representatives of their voting rights or whether those representatives actually take account of the interests of those bodies.

(1) OJ C 328, 30.9.2019.