Land

as joint owner also enabled NordLB to seize future opportunities in its competitive business. The ‘necessity requirement’ for

Anstaltslast

does not apply to such a normal economic decision by the

Land

. In the absence of another existing applicable state aid scheme pursuant to Articles 87(1) and 88(1) of the EC Treaty, the capital injection must be classed as new aid within the meaning of Articles 87(1) and 88(3) of the EC Treaty.

VI. CONCLUSION

(183) The Commission finds that Germany has unlawfully implemented the new aid in question in breach of Article 88(3) of the EC Treaty.

(184) The aid cannot be found compatible with the common market either under Article 87(2) or (3) or under any other provision of the Treaty. It is therefore declared incompatible with the common market and must be discontinued and the aid element of the measure illegally put into effect must be recovered by Germany,

HAS ADOPTED THIS DECISION:

Article 1

1. The difference between the appropriate remuneration of 6,76 % per annum (after corporation tax and before investor tax) and the remuneration of 0,5 % per annum (after corporation tax and before investor tax) agreed by Norddeutsche Landesbank — Girozentrale and the

Land

of Lower Saxony for the part of the transferred capital which Norddeutsche Landesbank — Girozentrale was able to use to underpin its competitive business as of 1 January 1992 constitutes aid which is incompatible with the common market.

2. The waiver of an appropriate remuneration amounting to 0,15 % per annum (after corporation tax and before investor tax) for the part of the capital transferred to Norddeutsche Landesbank — Girozentrale which could be used as a guarantee as from 1 January 1992 constitutes aid which is incompatible with the common market.

3. The amounts of aid referred to in paragraphs 1 and 2 total EUR 472,34 million for the period from 1 January 1992 to 31 December 2003 taken for the calculation.

Article 2

1. Germany shall discontinue the aid referred to in Article 1(1) and (2) by not later than 31 December 2004.

2. Germany shall take all necessary measures to recover from the beneficiary the aid referred to in Article 1(1) and (2) and unlawfully made available.

The aid to be recovered and specified in Article 1(1) and (2) comprises:

(a) the amount specified in Article 1(3) for the period from 1 January 1992 to 31 December 2003;

(b) an amount determined in accordance with the methods of calculation referred to in Article 1(1) and (2) for the period from 1 January 2004 to the time at which the aid is discontinued.

Article 3

Recovery shall be effected without delay and in accordance with the procedures of national law, provided that they allow the immediate and effective execution of the Decision.

The aid to be recovered shall include interest from the date on which it was at the disposal of the beneficiary until the date of its recovery.

Interest shall be calculated in accordance with the provisions of Chapter V of Commission Regulation (EC) No 794/2004(20).

Article 4

Germany shall, by means of the questionnaire annexed hereto, inform the Commission, within two months of notification of this Decision, of the measures taken to implement the Decision.

Article 5

This Decision is addressed to the Federal Republic of Germany.

Brussels, 20 October 2004.

For the Commission