(68) Germany contests the legal grounds on which the Commission initiated the procedure, arguing that at the time of notification it submitted complete and correct information, and that hence Article 9 of Regulation (EC) No 659/1999 is not applicable. Germany also claims that the Commission should only base its assessment of the SME status of a company on the respect of the formal criteria (staff headcount and financial ceilings) of the SME definition, and not add ‘unwritten criteria’ to verify whether a company suffers from typical SME handicaps. Germany contests that the SME bonus was obtained by Sovello in breach of the State aid rules, and claims that the Commission’s allegations of possible manipulation cannot be maintained.

(69) Germany states that at the time of notification, Sovello fulfilled the conditions of the SME definition: Q-Cells only held a minority participation of 24,9 % in Sovello, and was nor a partner nor a linked enterprise with Sovello in the sense of the SME definition. Therefore, no data from Q-Cells were to be taken into account for the calculation of the SME thresholds. Germany contests that the influence of Q-Cells on Sovello at the time of notification was higher than that of an investor owning 24,9 % of the shares. Moreover, Germany is of the opinion that Sovello suffered indeed from the typical handicaps of an SME, and that without the State aid including the SME bonus, the investment project would not have been carried out.

(70) On 7 June 2006, the Commission approved a SME bonus of 15 % GGE (granted as a top-up to regional aid) for Sovello. Subsequently, the Commission uncovered evidence that this initial Commission decision might have been taken on the basis of incorrect information provided with the original notification and, insofar as that information could constitute a decisive factor for the decision, the Commission decided on 17 June 2008 to open the procedure laid down in Article 108(2) TFEU in respect of the aid at issue, with a view to revoking the decision N 426/05 and adopting a new decision.

(71) Germany notified the SME bonus to Sovello by letter dated 29 August 2005, registered as received on 1 September 2005.

(72) The SME bonus to Sovello was granted on 21 April 2005 (subject to Commission approval) as a top-up to regional aid granted lawfully under the German GA scheme. This scheme contains a specific provision(25) requiring Germany to notify individually any award of SME bonuses which exceeds the individual notification threshold of SME block-exemption Regulation. The SME block-exemption Regulation, applicable at the time of notification, exempts investment aid to be given to SMEs at an intensity of 7,5 % net grant equivalent (NGE) for medium-sized companies and 15 % NGE for small companies anywhere within the EU. Where aid is granted in the assisted areas, the SME block-exemption Regulation also exempts aid up to the amount allowed under the RAG 1998 plus the additional SME bonus. The SME block-exemption Regulation does not exempt aid for certain projects with eligible expenses over EUR 25 million, or any project which will receive gross aid in excess of EUR 15 million. Such aid has to be individually notified.