62015TJ0353
JUDGMENT OF THE GENERAL COURT (First Chamber, Extended Composition)
19 June 2019 (
*1
)
(State aid — Individual aid in favour of the Nürburgring complex for the construction of a leisure park, hotels and restaurants as well as for the organisation of motor races — Decision finding the aid to be incompatible with the internal market — Decision finding that the reimbursement of the aid found to be incompatible does not concern the new owner of the Nürburgring complex — Action for annulment — No substantial effect on competitive position — Inadmissibility — Decision finding no State aid after the preliminary examination stage — Action for annulment — Interested party — Legal interest in bringing an action — Admissibility — Breach of procedural rights — No difficulties that would have required the initiation of a formal investigation procedure — Complaint — Sale of the assets of the beneficiaries of the State aid found to be incompatible — Open, transparent, non-discriminatory and unconditional tender process — Diligent and impartial examination — Obligation to state reasons)
In Case T‑353/15,
NeXovation, Inc., established in Hendersonville (United States), initially represented by A. von Bergwelt, F. Henkel and M. Nordmann, subsequently by A. von Bergwelt and M. Nordmann, lawyers,
applicant,
v
European Commission, represented by L. Flynn, T. Maxian Rusche and B. Stromsky, acting as Agents,
defendant,
ACTION pursuant to Article 263 TFEU seeking the partial annulment of Commission Decision (EU) 2016/151 of 1 October 2014 on the State aid SA.31550 (2012/C) (ex 2012/NN) implemented by Germany for Nürburgring (OJ 2016 L 34, p. 1),
THE GENERAL COURT (First Chamber, Extended Composition),
composed of I. Pelikánová, President, V. Valančius, P. Nihoul, J. Svenningsen and U. Öberg (Rapporteur), Judges,
Registrar: N. Schall, Administrator,
having regard to the written part of the procedure and further to the hearing on 30 January 2018,
gives the following
Judgment
I. Background to the dispute
1
The Nürburgring complex (‘the Nürburgring’), located in the German Land of Rhineland-Palatinate, consists of a race track, a leisure park, hotels and restaurants.
2
Between 2002 and 2012, the owners of the Nürburgring (‘the sellers’), namely the public undertakings Nürburgring GmbH, Motorsport Resort Nürburgring GmbH and Congress- und Motorsport Hotel Nürburgring GmbH, were the beneficiaries, mainly from the Land of Rhineland-Palatinate, of support measures regarding the construction of a leisure park, hotels and restaurants as well as the organisation of Formula 1 races.
A. Administrative procedure and sale of the Nürburgring assets
3
By letter of 21 March 2012, the European Commission notified the Federal Republic of Germany that it had decided to initiate a formal investigation procedure, under Article 108(2) TFEU, in respect of the various support measures implemented between 2002 and 2012 in favour of the Nürburgring. By that decision, a summary of which was published in the Official Journal of the European Union (OJ 2012 C 216, p. 14), the Commission invited interested parties to submit their comments on the measures concerned.
4
As a result of the granting of additional support measures which were notified to it by the Federal Republic of Germany, the Commission decided to extend the formal investigation procedure to those new measures. The decision was notified to the Federal Republic of Germany by letter of 7 August 2012. By that decision, a summary of which was published in the Official Journal (OJ 2012 C 333, p. 1), the Commission invited interested parties to submit their comments on those additional measures.
5
On 24 July 2012, the Amtsgericht Bad Neuenahr-Ahrweiler (Local Court, Bad Neuenahr-Ahrweiler, Germany) made a finding that the sellers were insolvent. On 1 November 2012 it opened insolvency proceedings with no declining of jurisdiction. It was decided to proceed to the sale of the sellers’ assets (‘the sale of the Nürburgring assets’). The sellers designated the auditing firm KPMG AG as legal and financial advisor.
6
On 1 November 2012, management of the Nürburgring was entrusted to Nürburgring Betriebsgesellschaft mbH, a 100% subsidiary of one of the sellers, Nürburgring GmbH, consisting of the administrators designated by the Amtsgericht Bad Neuenahr-Ahrweiler (Local Court, Bad Neuenahr-Ahrweiler).
7
On 15 May 2013, a tender process for the sale of the Nürburgring assets was launched (‘the tender process’).
8
On 23 May 2013, the Commission informed the Federal Republic of Germany and the administrators of the criteria which the tender process was required to meet in order to rule out any element of State aid and informed them of the obligation on the part of the successful buyer to reimburse such advantages as it might receive. Discussions had taken place in this regard between the Commission, the Federal Republic of Germany and the administrators since October 2012.
9
The tender process was carried out as follows:
–
The launch of the tender process was announced on 14 May 2013 with a press release issued by one of the administrators;
–
A call for tenders was published by KPMG in the Financial Times, the Handelsblatt and on the Nürburgring website on 15 May 2013;
–
70 entities expressed their interest;
–
By letter of 19 July 2013, all interested investors received documentation on the Nürburgring and were invited to submit an indicative offer for the assets in their entirety, for defined asset clusters or for individual assets;
–
The deadline for the submission of an indicative offer was set successively to 12 September 2013, by letter of 19 July 2013, and then to 26 September 2013, by letter of 12 September 2013; each of those letters indicated that offers submitted after expiry of the deadline would also be considered;
–
At the beginning of February 2014, 24 potential buyers had submitted an indicative offer, including the applicant, NeXovation, Inc., a privately owned US undertaking operating in the information technology, consumer products, energy and automotive fields;
–
For the potential buyers invited to proceed to the next stage of the tender process, including the applicant, the deadline for the submission of confirmatory offers, which had to be fully financed and include a pre-negotiated asset purchase agreement, was set successively to 11 December 2013, by letter of 17 October 2013, and then to 17 February 2014, by letter of 17 December 2013; that last letter indicated that offers submitted after expiry of the deadline would also be considered, but pointed out that the sellers could nevertheless choose the successful buyer shortly after expiry of the deadline for the submission of offers;
–
13 potential buyers submitted confirmatory offers, four of which submitted an offer for the assets in their entirety, namely Capricorn Nürburgring Besitzgesellschaft GmbH (‘Capricorn’ or ‘the buyer’), a second bidder (‘Bidder 2’), the applicant and a fourth potential buyer;
–
As set out in the letters sent to interested investors on 19 July and 17 October 2013, investors were to be selected on the basis of requirements relating to (i) the maximisation of the total proceeds for all the assets and (ii) transaction security; in accordance with those criteria, in the last stage of the tender process, the offers made by Bidder 2 and by Capricorn were considered, both of which (i) offered to buy all the Nürburgring assets and (ii) had provided proof of the financial solidity of their offers on 7 and 11 March 2014, respectively. Draft transfer agreements were negotiated with both tenderers simultaneously;
–
On 11 March 2014, the committee of the sellers’ creditors, in the context of the sellers’ insolvency proceedings, approved the sale of the Nürburgring assets to Capricorn, which offered EUR 77 million, while Bidder 2 offered between EUR 47 million and EUR 52 million.
10
On 10 April 2014, the applicant filed a complaint with the Commission, on the ground that the tender process had not been open, transparent, non-discriminatory and unconditional and had not achieved a market price for the sale of the Nürburgring assets, since the assets had been transferred to a domestic tenderer, whose offer was lower than the applicant’s offer and which had been preferred in the tender process. According to the applicant, there was thus aid in favour of Capricorn, corresponding to the difference between the purchase price it had to pay for the Nürburgring assets and the market price of those assets, and Capricorn ensured the continuity of the sellers’ economic activities, so that the decision on recovery of the aid received by the sellers ought to be extended to Capricorn.
B. The contested decisions
11
The Commission adopted, on 1 October 2014, Decision (EU) 2016/151 on the State aid SA.31550 (2012/C) (ex 2012/NN) implemented by Germany for Nürburgring (OJ 2016 L 34, p. 1) and, on 13 April 2015, a corrigendum to that decision, published on its website (together, ‘the final decision’).
12
In Article 2 of the final decision, the Commission found that certain support measures in favour of the sellers were unlawful and incompatible with the internal market (‘the aid to the sellers’).
13
The Commission decided, in Article 3(2) of the final decision, that any potential recovery of the aid to the sellers would not concern Capricorn or its subsidiaries (‘the first contested decision’).
14
In the final indent of Article 1 of the final decision, the Commission determined that the sale of the Nürburgring assets to Capricorn did not constitute State aid (‘the second contested decision’).
15
The Commission took the view that the tender process had been conducted in an open, transparent and non-discriminatory manner, that that procedure had resulted in a sale price consistent with the market and that there was no economic continuity between the sellers and the buyer.
II. Procedure and forms of order sought
16
By application lodged at the Court Registry on 26 June 2015, the applicant brought the present action.
17
By letter of 15 October 2015, the Commission submitted a request for the translation of certain annexes to the application into the language of the case.
18
By document lodged at the Court Registry on 3 November 2015, the sellers sought leave to intervene in the present proceedings in support of the form of order sought by the Commission. By order of 18 April 2016, the President of the Eighth Chamber of the General Court granted that leave to intervene.
19
By letter lodged at the Court Registry on 3 May 2016, the sellers informed the Court that they were withdrawing their intervention.
20
By order of the President of the Eighth Chamber of the General Court of 6 July 2016, the sellers were removed from the Court Register as interveners and ordered to bear their own costs and pay those of the other parties relating to their intervention.
21
By decision of the President of the General Court of 3 October 2016 a new Judge-Rapporteur was designated and the case was assigned to the First Chamber of the General Court.
22
On 31 July 2017, by way of the measures of organisation of procedure provided for in Article 89 of the Rules of Procedure of the General Court, the Court put a written question to the Commission, asking it to reply in writing. The Commission lodged its observations in response on 6 September 2017.
23
Acting on a proposal from the First Chamber, the Court decided, pursuant to Article 28 of its Rules of Procedure, to refer the case to a chamber sitting in extended composition.
24
On 29 November 2017, the Court (First Chamber, Extended Composition) decided to open the oral part of the procedure and, by way of the measures of organisation of procedure provided for in Article 89 of its Rules of Procedure, asked the parties to lodge certain documents and put to them written questions, asking them to reply in writing. The parties lodged their observations in response on 14 December 2017 and 8 January 2018, in the case of the applicant, and on 13 and 21 December 2017, in the case of the Commission.
25
By separate document lodged at the Court Registry on 24 January 2018, the Commission sought from the Court, under Article 130(2) of the Rules of Procedure, a decision that the present action had become devoid of purpose and that there was no longer any need to adjudicate on it.
26
The parties presented oral argument, and answered the questions put to them by the Court, at the hearing on 30 January 2018. On the same day, the Commission lodged its observations on the report for the hearing.
27
On 6 March 2018, by way of the measures of organisation of procedure provided for in Article 89 of its Rules of Procedure, the Court asked the parties to lodge certain documents and put to them written questions, asking them to reply in writing. In accordance with Article 24 of the Statute of the Court of Justice of the European Union, the Court also requested the Federal Republic of Germany to lodge certain documents and put to it written questions, asking it to reply in writing. The parties and the Federal Republic of Germany lodged their observations in response on 27 March 2018 and on 4 and 9 April 2018.
28
On 18 May 2018, the applicant lodged its observations on the Commission’s application for a decision that there is no need to adjudicate.
29
On 12 June 2018, the oral part of the procedure was closed.
30
By document lodged at the Court Registry on 20 July 2018, the Commission submitted an application under Article 113(2) of the Rules of Procedure for reopening the oral part of the procedure. By decision of the President of the First Chamber (Extended Composition) of the Court of 16 August 2018, that application was rejected.
31
In the context of the main proceedings, the applicant claims that the Court should:
–
annul the first and second contested decisions;
–
order the Commission to pay the costs.
32
In the context of those proceedings, the Commission contends that the Court should:
–
dismiss the application as inadmissible in part and unfounded in part or, in the alternative, as unfounded;
–
order the applicant to pay the costs.
33
In the context of the interlocutory procedure, the Commission claims that the Court should find that there is no longer any need to adjudicate on the case, without making any express application for costs.
34
In the context of that procedure, the applicant claims that the Court should dismiss the Commission’s application for a decision that there is no need to adjudicate, without making any express application for costs.
III. Law
35
In the circumstances of the present case, the Court’s decision on the Commission’s application for a decision that there is no need to adjudicate must be considered together with the substance of the case and it must be examined jointly with the applications for annulment of the first and second contested decisions formulated by the applicant in the main proceedings.
A. Admissibility of the application for annulment of the first contested decision
36
The applicant seeks, first, annulment of the first contested decision, whereby the Commission, after finding that there was no economic continuity between the sellers and the buyer, decided that any potential recovery of the aid to the sellers would not concern the buyer.
37
By its second plea, alleging misinterpretation of the principle of economic continuity, the applicant submits, inter alia, that since the sale of the Nürburgring assets did not achieve a market price, because the tender process was not open, transparent, non-discriminatory and unconditional and the Nürburgring assets were not sold to the highest bidder, there is economic continuity between the sellers and the buyer requiring that the decision on recovery of the aid to the sellers be extended to Capricorn.
38
According to the applicant, the first contested decision was adopted after a preliminary examination procedure, rather than a formal investigation procedure, since the decisions of 21 March and 7 August 2012 to initiate the formal procedure did not cover the issue of whether aid had been granted to Capricorn.
39
In its defence, the Commission claimed that the action is inadmissible, in so far as it seeks to challenge the first contested decision. It argued, inter alia, that, since it is a decision which is related and complementary to the decision adopted after a formal investigation procedure establishing the presence of incompatible aid to be recovered, the applicant cannot be regarded as individually concerned merely by demonstrating that it is an interested party, but that it must show that its position on the market was substantially affected by the aid to the sellers, with the result that its circumstances distinguish it individually just as the person addressed by such a decision would have been. According to the Commission, however, the applicant’s position on the market was affected no differently to that of any other tenderer.
40
Subsequently, however, the Commission concluded that there was no longer any need for the Court to adjudicate on the case, including on the application for annulment of the first contested decision, on the ground that the applicant had lost any legal interest in bringing an action.
41
In the present case, it is appropriate to begin by examining the plea of inadmissibility specifically raised by the Commission in its defence with regard to the application for annulment of the first contested decision.
42
In response to this plea of inadmissibility, the applicant’s main argument is that its position on the market was substantially affected by the granting of aid related to the sale of the Nürburgring assets to Capricorn, since it was removed, through the award of those assets, both from the market for the purchase of the Nürburgring and from the market for its operation.
43
In the first place, it must be recalled that, in its judgment of 17 September 2015, Mory and Others v Commission (C‑33/14 P, EU:C:2015:609, paragraph 104), the Court of Justice held that a decision on economic continuity must be regarded as a decision which is ‘related and complementary’ to the final decision preceding it on the aid concerned, in so far as it defines the scope thereof as regards the status of beneficiary of that aid and, therefore, as regards that of the party obliged to repay that aid, following the occurrence of an event after the adoption of that decision, such as the acquisition by a third party of the assets of the initial beneficiary of that aid.
44
In the present case, by the first contested decision, the Commission, after finding that there was no economic continuity between the sellers and the buyer, decided that any potential recovery of the aid to the sellers would not concern the buyer.
45
It is therefore appropriate to find that the first contested decision is a decision which is ‘related and complementary’ to the decision on the aid to the sellers, taken after the formal investigation procedure.
46
In the second place, it should be recalled that, under the fourth paragraph of Article 263 TFEU, ‘any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures’.
47
In so far as the first contested decision concerns the aid to the sellers, which was granted as individual aid and not under an aid scheme, that aid cannot be equated with a regulatory act within the meaning of the fourth paragraph of Article 263 TFEU.
48
According to a consistent body of case-law, persons other than those to whom a decision is addressed may claim to be individually concerned by that decision only if it affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed by such a decision (judgments of 15 July 1963, Plaumann v Commission, 25/62, EU:C:1963:17, p. 107, and of 19 May 1993, Cook v Commission, C‑198/91, EU:C:1993:197, paragraph 20).
49
Concerning State aid, in addition to the undertaking in receipt of aid, competing undertakings have been recognised as individually concerned by a Commission decision terminating the formal examination procedure where they have played an active role in that procedure, provided that their position on the market is substantially affected by the aid concerned (see judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 98 and the case-law cited; see also, to that effect, judgment of 5 November 2014, Vtesse Networks v Commission, T‑362/10, EU:T:2014:928, paragraph 53 and the case-law cited).
50
The criterion of substantial effect serves to identify competitors that, as a result of aid, are distinguished individually in such a manner that they fulfil the requirements for admissibility as laid down in the judgment of 15 July 1963, Plaumann v Commission (25/62, EU:C:1963:17). Accordingly, competitors that have standing to bring an action are affected by that aid by being differentiated from all other persons and distinguished individually just as in the case of the person to whom the decision under challenge is addressed. Thus, the existence of a substantial effect on the applicant’s position on the market does not depend directly on the amount of the aid at issue, but on the significance of the adverse effect which that aid may have on that position. Such an adverse effect may vary, in respect of aid of a similar amount, in the light of criteria such as the size of the market concerned, the specific nature of the aid, the length of the period for which it was granted, whether the activity affected is the applicant’s main or ancillary activity, and the possibilities which the applicant has to circumvent the negative effects of the aid (see judgment of 5 November 2014, Vtesse Networks v Commission, T‑362/10, EU:T:2014:928, paragraph 41 and the case-law cited).
51
The mere status of potential competitor is therefore insufficient to confer on an individual the right to bring an action before the EU Courts in order to challenge a decision adopted by the Commission after a formal investigation procedure.
52
In the present case, it is appropriate to find that the applicant played an active role in the procedure that preceded the adoption of the first contested decision, in that it lodged a complaint on 10 April 2014 on the ground that the tender process was unlawful and the decision on recovery of the aid to the sellers ought to be extended to the buyer.
53
It is, however, clear from the case-law cited in paragraph 49 above that it cannot be inferred solely from the applicant’s participation in the administrative procedure that it has standing to bring an action. The applicant must, in any event, show that the aid to the sellers was likely to affect substantially its position on the market.
54
In recital 20 of the final decision, the Commission stated that the support measures in favour of the sellers concerned the financing of the construction and operation of the Nürburgring facilities. In addition, in recitals 173 to 176 and 178 of the final decision, the Commission noted that the markets on which competition was likely to be distorted as a result of those measures were those concerning the operation of race tracks, off-road parks, leisure parks, accommodation facilities, restaurants, safety driving centres, driving schools, multifunctional halls, and cash-free payment systems as well as those concerning the promotion of tourism, project development, the construction of real property, business management and trade with cars or motor bikes (‘the relevant markets’). Lastly, in recital 180 of the final decision, the Commission indicated that the relevant markets could be considered to be EU-wide.
55
In response to one of the questions put by the Court in the context of the measures of organisation of procedure adopted on 29 November 2017 (see paragraph 24 above), the applicant conceded that, at the time of submitting the application and before that, it was not present on the relevant markets. Therefore, it held no position on the relevant markets that was likely to be affected, let alone substantially, by the aid to the sellers.
56
To the extent that the applicant submits, in essence, that it would have been able to acquire the Nürburgring assets and, therefore, enter the relevant markets, had it not been discriminated against in the tender process (see paragraph 10 above), and that it found it difficult to acquire or operate other race tracks, due to the loss of reputation and the negative publicity resulting from the setback in the tender process, it must be pointed out that its arguments cannot suffice, before the EU Courts and in the light of the case-law cited in paragraphs 49 to 51 above, to distinguish it individually with regard to the aid to the sellers and the first contested decision, in such a manner as to fulfil the requirements for admissibility laid down in the judgment of 15 July 1963, Plaumann v Commission (25/62, EU:C:1963:17).
57
It follows that the applicant has not shown that it is individually concerned by the first contested decision.
58
It should be remembered that the conditions for the admissibility of an action are cumulative (judgment of 28 March 2012, Ryanair v Commission, T‑123/09, EU:T:2012:164, paragraph 199). Thus, without there being any need to examine the applicant’s interest in bringing an action for annulment of the first contested decision, let alone the Commission’s application for a decision that there is no need to adjudicate based on the applicant’s loss of its legal interest in bringing an action for annulment of the first contested decision, it is appropriate to find that the action is inadmissible, in so far as it seeks annulment of the first decision, for lack of individual effect.
B. The application for annulment of the second contested decision
59
The applicant also seeks annulment of the second contested decision, whereby the Commission determined that the sale of the Nürburgring assets to Capricorn did not constitute State aid.
1.
Admissibility and the application for a decision that there is no need to adjudicate
60
In its defence, the Commission expressed no doubt as to the admissibility of the action, in so far as it concerns the second contested decision. Subsequently, however, the Commission concluded that there was no longer any need for the Court to adjudicate, including on the application for annulment of the second contested decision, on the ground that the applicant had lost any legal interest in bringing an action. In that respect, the Commission also challenged the applicant’s standing to bring an action with regard to the second contested decision.
61
In the present case, it is appropriate to start by examining whether the applicant has standing to bring an action for annulment of the second contested decision, before exploring the extent to which it has and retains a legal interest in securing that annulment.
62
As to its standing, the applicant maintains that it is directly and individually concerned by the second contested decision. In that regard and according to the case-law, the applicant claims that its specific status of ‘interested party’ within the meaning of Article 1(h) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 108 [TFEU] (OJ 1999 L 83, p. 1), in conjunction with the specific subject matter of the action, is sufficient to distinguish it individually, for the purposes of the fourth paragraph of Article 263 TFEU. Lastly, it submits that its position on the market was substantially affected by the aid allegedly granted to the buyer in the tender process.
63
In its application for a decision that there is no need to adjudicate, the Commission claims that the applicant cannot base its status of interested party on its status of potential buyer of the Nürburgring assets since, in a letter of 26 April 2016 addressed to the Commission, the Federal Republic of Germany stated that Capricorn had paid the purchase price of those assets in full and had waived its right to terminate the sales agreement in the event that the Commission should decide to recover the aid to the sellers from it. The Commission also submits that the applicant cannot base its status of interested party on its status of competitor of Capricorn either, since its replies to the questions put by the Court in the context of the measure of organisation of procedure adopted on 29 November 2017 (see paragraph 24 above) establish that the applicant was not active on the relevant markets.
64
In the context of the procedure for reviewing State aid, the preliminary examination stage for reviewing aid under Article 108(3) TFEU, which is intended merely to allow the Commission to form a prima facie opinion on the partial or complete conformity of the aid in question, must be distinguished from the investigation under Article 108(2) TFEU, which is designed to enable the Commission to be fully informed of all the facts of the case. It is only in connection with the procedure laid down in the latter provision that the FEU Treaty imposes the procedural guarantee consisting in the obligation, for the Commission, to give the parties concerned notice to submit their comments (judgments of 19 May 1993, Cook v Commission, C‑198/91, EU:C:1993:197, paragraph 22; of 15 June 1993, Matra v Commission, C‑225/91, EU:C:1993:239, paragraph 16; and of 17 July 2008, Athinaïki Techniki v Commission, C‑521/06 P, EU:C:2008:422, paragraph 35).
65
Where, without initiating the formal investigation procedure under Article 108(2) TFEU, the Commission finds, by a decision based on Article 108(3) TFEU, that a State measure does not constitute aid incompatible with the internal market, the persons intended to benefit from that procedural guarantee may secure compliance therewith only if they are able to challenge that decision before the EU Courts. For those reasons, the EU Courts declare to be admissible an action for annulment of such a decision brought by a party who is concerned within the meaning of Article 108(2) TFEU where it seeks, by instituting proceedings, to safeguard the procedural rights available to it under the latter provision (judgment of 17 July 2008, Athinaïki Techniki v Commission, C‑521/06 P, EU:C:2008:422, paragraph 36).
66
Thus, it must be held that any interested party must be regarded as being directly and individually concerned by a decision finding the absence of aid at the conclusion of the preliminary examination phase (judgment of 28 March 2012, Ryanair v Commission, T‑123/09, EU:T:2012:164, paragraph 68), bearing in mind that, where an interested party has lodged a complaint, refusal by the Commission to uphold that complaint must in any event be regarded as a refusal to initiate the procedure laid down in Article 108(2) TFEU (see, to that effect, judgment of 18 November 2010, NDSHT v Commission, C‑322/09 P, EU:C:2010:701, paragraphs 51 to 54).
67
In the present case, the parties agree that the second contested decision is a decision adopted after the preliminary stage of the procedure for reviewing aid under Article 108(3) TFEU, and not after a formal investigation procedure. Since the applicant cannot, for the reasons already mentioned in paragraphs 55 to 57 above, be regarded as fulfilling the requirements for admissibility as laid down in the judgment of 15 July 1963, Plaumann v Commission (25/62, EU:C:1963:17), it is appropriate, in order to ascertain whether it has standing to bring an action for annulment of the second contested decision, to determine whether it has proven to the requisite legal standard that it is an interested party.
68
Under Article 1(h) of Regulation No 659/1999, any Member State and any person, undertaking or association of undertakings whose interests might be affected by the granting of aid are to be regarded as an ‘interested party’. In other words, that term covers an indeterminate group of addressees. That provision does not rule out the possibility that an undertaking which is not a direct competitor of the beneficiary of the aid may be categorised as an ‘interested party’, provided that that undertaking demonstrates that its interests could be adversely affected by the granting of the aid. It is sufficient for that undertaking to show to the requisite legal standard that the aid is likely to have a specific effect on its situation (see judgment of 24 May 2011, Commission v Kronoply and Kronotex, C‑83/09 P, EU:C:2011:341, paragraphs 63 to 65 and the case-law cited).
69
It follows that, in principle, any undertaking invoking the existence of an actual or potential competitive relationship may be regarded as having the status of interested party for the purposes of Article 108(2) TFEU.
70
In the present case, it must be held that the applicant has proven, by participating actively, up to the final stage, in the tender process and by lodging a complaint in that regard with the Commission, its genuine desire to enter the relevant markets and, therefore, its status of potential competitor of Capricorn, which had allegedly benefited, according to the complaint and in the light of the specific circumstances of the sale of the Nürburgring assets, from State aid, the existence of which the Commission rejected in the second contested decision.
71
Therefore, in the light of the considerations set out in paragraphs 68 and 69 above and of all the previous findings, the applicant’s status of interested party must be recognised with regard to the second contested decision.
72
As to the applicant’s legal interest in bringing an action, the Commission submits, in its application for a decision that there is no need to adjudicate, that the applicant lost that interest due, inter alia, to the fact that Capricorn had paid, allegedly, the purchase price of the Nürburgring assets in full and had waived its right to terminate the sales agreement in the event that the Commission should decide to recover the aid to the sellers from it (see paragraph 63 above).
73
It is important to recall, however, that ‘parties concerned’ within the meaning of Article 108(2) TFEU have a legal interest in securing the annulment of a decision taken after the preliminary examination stage, since, pursuant to the provisions of Article 108 TFEU, such annulment would require the Commission to initiate the formal investigation procedure, permitting them to submit their comments and thus exert an influence on the new Commission decision (judgment of 10 February 2009, Deutsche Post and DHL International v Commission, T‑388/03, EU:T:2009:30, paragraphs 62 and 64). In the present case, the applicant has a legal interest in having the second contested decision annulled in so far as, by the first part of its fourth plea, it calls into question the fact that that decision, which establishes that no aid was granted to Capricorn in the tender process, was adopted without the Commission initiating the formal investigation procedure, in breach of its procedural rights as an interested party.
74
If the Court were to annul the second contested decision for breach of the applicant’s procedural rights, the Commission would, in principle, have to initiate the formal investigation procedure with regard to the sale of the Nürburgring assets and ask the applicant, as an interested party, to submit its comments. Consequently, the annulment of the second contested decision may, in itself, have legal consequences for the applicant, as an interested party.
75
It must therefore be concluded, with regard to the second contested decision, that the applicant has standing to bring an action, as an interested party, and has and maintains a legal interest in bringing an action, arising from the safeguard of the procedural rights available to it, in that same capacity, under Article 108(2) TFEU.
76
It follows that the Commission’s application for a decision that there is no need to adjudicate must be rejected and that the present action is admissible, in so far as it relates to the second contested decision and seeks to safeguard the procedural rights available to the applicant under Article 108(2) TFEU.
2.
Substance
(a)
Preliminary observations on the scope of the judicial review concerning a decision that there is no aid, taken after the preliminary examination stage
77
It should be made clear at the outset that Article 108(3) TFEU and Article 4 of Regulation No 659/1999 provide for a stage at which the aid measures notified undergo a preliminary examination, the purpose of which is to enable the Commission to form an initial view as to whether the aid notified is compatible with the internal market. On completion of that stage, the Commission is to make a finding either that the measure does not constitute aid or that it comes within the scope of Article 107(1) TFEU. In the latter case, it may be that the measure does not raise doubts as to its compatibility with the internal market; on the other hand, it is also possible that the measure may raise such doubts (judgment of 24 May 2011, Commission v Kronoply and Kronotex, C‑83/09 P, EU:C:2011:341, paragraph 43).
78
When, after the preliminary examination stage, the Commission adopts a decision whereby it finds that a State measure does not constitute aid that is incompatible with the internal market, it also implicitly refuses to initiate the formal investigation procedure. That principle applies both where the decision is taken on the ground that the Commission considers that the aid is compatible with the internal market, under Article 4(3) of Regulation No 659/1999, namely ‘a decision not to raise objections’, and where it is of the opinion that the measure does not come within the scope of Article 107(1) TFEU and thus does not constitute aid pursuant to Article 4(2) of Regulation No 659/1999 (see, to that effect, judgments of 17 July 2008, Athinaïki Techniki v Commission, C‑521/06 P, EU:C:2008:422, paragraph 52, and of 28 March 2012, Ryanair v Commission, T‑123/09, EU:T:2012:164, paragraph 68).
79
According to the case-law, where an applicant seeks the annulment of a decision declaring that the measure at issue is not State aid or of a decision not to raise objections, it essentially contests the fact that the Commission adopted the decision in relation to the aid at issue without initiating the formal investigation procedure, thereby acting in breach of the applicant’s procedural rights. In order to have its application for annulment upheld, the applicant may invoke, for the purpose of safeguarding the procedural rights available to it in the context of the formal investigation procedure, any plea capable of showing that the assessment of the information and evidence that was available to the Commission during the phase of preliminary examination of the measure at issue should have raised doubts as to its classification of that measure as State aid or its compatibility with the internal market (judgments of 13 June 2013, Ryanair v Commission, C‑287/12 P, not published, EU:C:2013:395, paragraph 60, and of 25 November 2014, Ryanair v Commission, T‑512/11, not published, EU:T:2014:989, paragraph 31).
80
Proof of the existence of doubts may be furnished by, inter alia, reference to a body of consistent evidence: the question whether or not a doubt exists requires, with regard to a decision finding the measure at issue not to constitute State aid, investigation of both the circumstances in which that decision was adopted, inter alia the duration of the preliminary examination, and its content, comparing the assessments upon which the Commission relied in that decision with the information available to it when it took a view on the classification of the measure in question as State aid (see, to that effect, judgment of 24 January 2013, 3F v Commission, C‑646/11 P, not published, EU:C:2013:36, paragraph 31).
81
Thus, the Commission is required to initiate the formal investigation procedure if, in the light of the information obtained or available to it during the preliminary examination stage, it still faces serious difficulties in assessing the measure under consideration. That obligation follows directly from Article 108(3) TFEU, as interpreted by the case-law, and is confirmed by Article 4 of Regulation No 659/1999, when the Commission finds, after a preliminary examination, that the measure at issue raises doubts as to its classification as aid or its compatibility with the internal market (see, to that effect, judgments of 21 December 2016, Club Hotel Loutraki and Others v Commission, C‑131/15 P, EU:C:2016:989, paragraphs 30 to 33, and of 12 February 2008, BUPA and Others v Commission, T‑289/03, EU:T:2008:29, paragraph 328). In such a case, the Commission may not decline to initiate the formal investigation procedure in reliance upon other circumstances, such as third party interests, considerations of economy of procedure or any other ground of administrative or political convenience (judgment of 10 February 2009, Deutsche Post and DHL International v Commission, T‑388/03, EU:T:2009:30, paragraph 90).
82
At the litigation stage, review by the EU Courts must focus on whether, in the light of the arguments put forward and the evidence adduced by the applicant in the case concerned, the assessments on which the Commission relied in finding that there is no aid gave rise to such difficulties as to raise doubts and, accordingly, justify the initiation of the formal investigation procedure (see, to that effect, judgments of 19 May 1993, Cook v Commission, C‑198/91, EU:C:1993:197, paragraph 31, and of 15 June 1993, Matra v Commission, C‑225/91, EU:C:1993:239, paragraph 34).
(b)
Preliminary observations on the subject matter of the action
83
The first part of the fourth plea alleges breach of the applicant’s procedural rights, in that the Commission failed to initiate the formal investigation procedure laid down in Article 108(2) TFEU in spite of the existence of serious difficulties in assessing the measure at issue.
84
In that part of the fourth plea, in order to show the existence of such serious difficulties, the applicant puts forward, inter alia, errors of law, errors of assessment and a failure to state reasons that, it claims, vitiate the second contested decision. Those errors and that failure are invoked, in addition, in its first, third and fifth pleas, relating respectively to the misinterpretation of the meaning of State aid, the failure to take account of the continuation of the sales process by the transfer to a sub-purchaser of Capricorn’s shares in the acquisition vehicle for the Nürburgring assets, and a failure to state reasons.
85
Therefore, the Court must examine, in the first place, the first part of the fourth plea, then, in the light of that part, alleging breach of the applicant’s procedural rights, turn to the first, third and fifth pleas, in order to assess whether the arguments put forward in support thereof make it possible to identify any serious difficulties in assessing the measure concerned in the presence of which the Commission should have initiated the formal investigation procedure laid down in Article 108(2) TFEU, as the Court is allowed to do by the case-law (see, to that effect, judgment of 24 May 2011, Commission v Kronoply and Kronotex, C‑83/09 P, EU:C:2011:341, paragraphs 56 and 58).
86
The Court will examine, in the second place, the second, third and fourth parts of the fourth plea, alleging other breaches of the applicant’s procedural rights, which may also have had an impact on the Commission’s finding, in the second contested decision, that there were no such serious difficulties in assessing the measure concerned as to justify the initiation of the formal investigation procedure laid down in Article 108(2) TFEU. The second part of the fourth plea alleges breach of the second subparagraph of Article 20(2) of Regulation No 659/1999, and the third and fourth parts of the fourth plea allege a failure by the Commission to carry out a diligent and impartial examination of the tender process. It is recalled that the second plea of the application initiating proceedings, alleging the existence of economic continuity, was directed only against the first contested decision, in respect of which the applicant was found to have no standing.
(c)
The first part of the fourth plea in law, alleging serious difficulties in assessing the sale of the Nürburgring assets
87
The applicant invokes, in the first place, the duration of the preliminary examination stage and, in the second place, the content of the second contested decision.
(1) The duration of the preliminary examination stage
88
The applicant submits that the Commission postponed its decision several times, particularly between 23 June and 1 October 2014, when the final decision was eventually adopted. Moreover, the corrigendum to the final decision was adopted on 13 April 2015, more than a year after its complaint had been lodged with the Commission.
89
The Commission contends that it encountered no serious difficulties during the preliminary examination.
90
It should be noted that, where the disputed State measures were not notified by the Member State concerned, the Commission is not required to carry out a preliminary examination of those measures within a specified period. However, the Commission is bound to carry out a diligent examination of a complaint alleging the existence of aid that is incompatible with the internal market, as the issue of whether or not the duration of the preliminary examination stage is reasonable must be determined in relation to the particular circumstances of each case and, especially, its context, the various procedural stages to be followed by the Commission and the complexity of the case (see, to that effect, judgment of 27 September 2011, 3F v Commission, T‑30/03 RENV, EU:T:2011:534, paragraphs 57 and 58 and the case-law cited).
91
In the present case, the applicant’s complaint was brought before the Commission on 10 April 2014. That complaint related to the sale of the Nürburgring assets to Capricorn at a price lower than their market price and to the issue of whether there was economic continuity between the sellers and Capricorn that would have justified extending to the latter the decision on recovery of the aid to the sellers. In addition, three more complaints were lodged in relation to the sale of the Nürburgring assets. The final decision was taken on 1 October 2014, less than six months after receipt of the applicant’s complaint. That lapse of time does not go beyond what was required of an initial examination of the questions relating to the sale of the Nürburgring assets at a price lower than their market price and thus does not show the existence of such serious difficulties in assessing the measure concerned as to justify the initiation of the formal investigation procedure.
92
It follows that this claim must be rejected.
(2) The content of the second contested decision
93
The applicant submits, in essence, that the second contested decision in itself shows the existence of serious difficulties, claiming in this regard that the examination carried out by the Commission was flawed. In its opinion, the flaws concern, in particular, the examination as to whether the tender process had been open, transparent, non-discriminatory and unconditional, that of certain facts that are allegedly relevant in that regard, such as the sale of the Nürburgring assets to a sub-purchaser, that of whether the process led to the sale of those assets to the highest bidder as well as the assessment of the fact that Capricorn was allegedly unable to fulfil the requirement for payment security with regard to the purchase price.
94
In addition, the applicant submits that the errors of law made by the Commission in misapplying Article 107(1) TFEU and Article 14 of Regulation No 659/1999, together with the failure to state reasons, confirm the existence of serious difficulties in assessing the measure concerned that would have justified the initiation of the formal investigation procedure.
95
The Commission disputes that line of argument.
96
It should be noted, first of all, that the Commission found in recital 285 of the final decision, after consideration of the circumstances of the case, that ‘the sale of [the Nürburgring] assets d[id] not constitute State aid’.
97
In recital 281 of the final decision, the Commission stated that it found ‘[no] evidence of a breach of the principles of an open, transparent, non-discriminatory and [un]conditional tender process with regards to the sale of the [Nürburgring] assets or of any offer with a higher price bid with secured financing compared to the price bid made by Capricorn’.
98
In recitals 240, 261, 266, 271, 276 and 280 of the final decision, the Commission took the view, in particular, that Capricorn was the tenderer which submitted the highest offer including a proof of its financing. As to that proof, the Commission established that the letter from Deutsche Bank AG of 10 March 2014 in support of Capricorn’s offer (‘the letter from Deutsche Bank of 10 March 2014’) had been available to it as early as April 2014. There is therefore no reason to doubt the Commission’s assertion that it had carried out its own assessment of that letter and considered that it amounted to proof of financing, the binding nature of which was confirmed by the German authorities.
99
The argument as to the proof of financing in respect of the offer submitted by Capricorn and as to whether the tender process had led to the sale of the assets to the highest bidder is therefore unfounded.
100
The applicant also claims that the Commission failed to investigate thoroughly the tender process. In particular, it argues, the final decision fails to mention the continuation of the sales process.
101
In that regard, it is apparent from the case-law that if the examination carried out by the Commission during the preliminary examination stage is insufficient or incomplete, this constitutes evidence of such serious difficulties as to justify the initiation of the formal investigation procedure (see judgment of 11 October 2016, Søndagsavisen v Commission, T‑167/14, not published, EU:T:2016:603, paragraph 24 and the case-law cited).
102
The case-law has also found that, generally, the legality of a decision concerning State aid is to be assessed in the light of the information available to the Commission when the decision was adopted (see, to that effect, judgment of 22 December 2008, Régie Networks, C‑333/07, EU:C:2008:764, paragraph 81), bearing in mind that the information ‘available’ to the Commission includes that which seemed relevant for the assessment to be carried out and which could have been obtained, upon request by the Commission, during the administrative procedure (see, to that effect, judgment of 20 September 2017, Commission v Frucona Košice, C‑300/16 P, EU:C:2017:706, paragraph 71).
103
The fact that the Commission, in the applicant’s opinion, did not reply to certain claims raised by the latter does not imply that it was unable to take a view on the measure in question on the basis of the information it possessed and that it therefore had to initiate the formal investigation procedure in order to complete its inquiry (judgment of 28 March 2012, Ryanair v Commission, T‑123/09, EU:T:2012:164, paragraph 130).
104
In the present case, the Commission cannot be criticised for not taking a view, in the final decision, on the continuation of the sales process by the transfer to a sub-purchaser of Capricorn’s shares in the acquisition vehicle for the Nürburgring assets, which, according to the applicant, took place on 28 October 2014, on the basis of a trust agreement dated 5 October 2014, and thus after that decision had been adopted.
105
Lastly, the applicant maintains that the errors of law made by the Commission in misapplying Article 107(1) TFEU and Article 14 of Regulation No 659/1999, together with the failure to state reasons, confirm the existence of serious difficulties. Examination of this argument overlaps with that of the first and fifth pleas, relating to those errors of law and that failure to state reasons, which will be carried out below.
106
Thus, without prejudice to the claims that will be examined in the context of the first and fifth pleas, the arguments put forward in support of the first part of the fourth plea do not make it possible to establish that, after the preliminary examination stage, the Commission was facing difficulties in assessing the sale of the Nürburgring assets that would have required the initiation of a formal investigation procedure. The first part of the fourth plea must therefore be rejected.
(d)
The first plea in law, alleging misinterpretation of the meaning of State aid, with regard to the granting of State aid to the buyer in the tender process
107
By its first plea, which consists of three parts, the applicant submits that the Commission misinterpreted the meaning of State aid for the purposes of Article 107 TFEU by finding that no State aid had been granted to the buyer in the tender process.
(1) The first part of the first plea in law, on the advantage conferred on the buyer in the tender process
108
By the first part of the first plea, the applicant claims that an advantage was conferred on the buyer in the tender process. According to the applicant, that process was not transparent. In particular, the applicant argues that the sellers and KPMG did not give the tenderers clear information about the deadlines applicable, and that as a result, it was misled as to the deadline for submission of the final offer. The applicant claims that the buyer did not submit its final offer until 10 March 2014, the day before it was awarded the sale of the Nürburgring assets, and that, as a result, there was a de facto extension of the time limit until that date.
109
In addition, the applicant submits that the tender process was discriminatory. In particular, the applicant claims that negotiations took place between representatives of the sellers and of the buyer, but not with its own representatives, during autumn 2013, despite the fact that the buyer had no secured financing. The applicant alleges, inter alia, that the buyer was permitted to attend management meetings held by the sellers. Moreover, according to the applicant, the Commission is wrong to argue that none of the tenderers had provided any proof of financing for the full purchase price and that, therefore, the sellers did not breach the principle of equal treatment by relaxing the requirement for secured financing during the tender process, in so far as that change in the terms governing the tender was not communicated to all tenderers.
110
Furthermore, the applicant submits that the buyer produced no proof of secured financing, since, inter alia, it had provided solely a commitment in the form of the letter from Deutsche Bank of 10 March 2014, that is a non-binding letter of intent, and that letter was only a preliminary draft, which was not binding in itself but was subject to additional conditions and to a final decision by Deutsche Bank.
111
Lastly, the applicant claims that it offered the highest purchase price, together with secured financing.
112
The Commission disputes that line of argument.
113
It is necessary to ascertain, in view of the claims put forward in the first part of the first plea, whether the examination carried out by the Commission with regard to the proper conduct of the tender process was of such a kind as to rule out such serious difficulties in assessing the sale of the Nürburgring assets as to justify the initiation of a formal investigation procedure.
114
According to consistent case-law, where an undertaking that has benefited from aid that is incompatible with the internal market is bought at the market price, that is to say, at the highest price which a private investor acting under normal competitive conditions was ready to pay for that company in the situation it was in, in particular after having enjoyed State aid, the aid element is assessed at the market price and included in the purchase price. In such circumstances, the buyer cannot be regarded as having benefited from an advantage in relation to other market operators (see, to that effect, judgment of 29 April 2004, Germany v Commission, C‑277/00, EU:C:2004:238, paragraph 80 and the case-law cited).
115
If, on the contrary, the assets of State aid beneficiaries are sold at a price lower than the market price, undue advantage could be conferred on the buyer (see, to that effect, judgment of 28 March 2012, Ryanair v Commission, T‑123/09, EU:T:2012:164, paragraph 161).
116
For the purposes of checking the market price, the form of the transfer of a company, in particular, for example, public tendering, deemed to ensure that a sale takes place under market conditions, may be taken into consideration. It follows that, where an undertaking is sold by way of an open, transparent and unconditional tender procedure, it can be presumed that the market price corresponds to the highest offer, provided that it is established, first, that that offer is binding and credible and, secondly, that the consideration of economic factors other than the price is not justified (see, to that effect, judgments of 24 October 2013, Land Burgenland and Others v Commission, C‑214/12 P, C‑215/12 P and C‑223/12 P, EU:C:2013:682, paragraphs 93 and 94, and of 16 July 2015, BVVG, C‑39/14, EU:C:2015:470, paragraph 32).
117
According to the case-law, the question whether a tender procedure has been open and transparent is determined on the basis of a body of evidence specific to the circumstances of each case (see, to that effect, judgment of 29 April 2004, Germany v Commission, C‑277/00, EU:C:2004:238, paragraph 95).
118
It is in the light of the case-law referred to in paragraphs 114 to 117 above that it is appropriate to examine, in the present case, the merits of the various claims raised in the context of the first part of the first plea, while bearing in mind the fact that, in that context, the Court cannot rule directly on the very lawfulness of the tender process.
(i) The claim that the tender process was not transparent
119
Inasmuch as the applicant alleges that the tender process was not transparent, it should be recalled (see seventh indent of paragraph 9 above) that the deadline for the submission of confirmatory offers was set successively to 11 December 2013, as is apparent from the letter from KPMG of 17 October 2013, and then to 17 February 2014, as is apparent from the letter from KPMG of 17 December 2013. That last letter stated that offers submitted after expiry of the deadline would also be considered. However, it indicated that the sellers could make the selection decision shortly after expiry of the deadline for the submission of offers.
120
As the Commission rightly contends, it was known to all tenderers that it was possible to submit an offer after 17 February 2014. Similarly, the fact that the buyer was able to submit its final offer on 10 March 2014, after expiry of the deadline, and be designated the successful tenderer as from 11 March 2014 is wholly consistent with the provisions of the letter from KPMG of 17 December 2013.
121
It follows that that claim does not make it possible to establish that the Commission ought to have had doubts as to the possible existence of an advantage conferred on the buyer in the tender process because of the non-transparent nature of that process in the light of the deadline set for the submission of a confirmatory offer.
(ii) The claim that the tender process was discriminatory
122
In the context of the present claim, the applicant submits that the tender process was discriminatory. In particular, the applicant claims that the buyer produced no proof of secured financing, since the letter from Deutsche Bank of 10 March 2014, in support of its offer approved on 11 March 2014, was non-binding.
123
The letter from KPMG of 17 October 2013 to interested investors stated that any sources of financing relying on third parties had to be supported by binding financing commitments (see ninth indent of paragraph 9 above). It is therefore necessary to ascertain whether the examination carried out by the Commission, reflecting the German authorities’ analysis, was of such a kind as to rule out any doubt as to the binding nature of the letter from Deutsche Bank of 10 March 2014.
124
First of all, the letter from Deutsche Bank of 10 March 2014 states that the latter was willing to underwrite a loan of EUR 45 million to the buyer. The conditions governing that financing are described in detail, which, as the Commission rightly submits, suggests careful analysis by Deutsche Bank and an exchange of information between the latter and the buyer.
125
Second, the letter from Deutsche Bank of 10 March 2014 refers several times to Deutsche Bank’s commitment in respect of Capricorn under that letter. Deutsche Bank thus considered itself bound by that letter.
126
In that regard, as the Commission rightly points out, a comparison of the letter from Deutsche Bank of 10 March 2014 with two non-binding preparatory letters from Deutsche Bank of 17 and 25 February 2014 confirms the binding nature of the letter from Deutsche Bank of 10 March 2014. Thus, the letter of 17 February 2014 states that it does not constitute a commitment on the part of Deutsche Bank, unlike the letter from Deutsche Bank of 10 March 2014, which refers to Deutsche Bank’s commitment in respect of Capricorn under that letter.
127
Lastly, the letter from Deutsche Bank of 10 March 2014 specifies that Deutsche Bank’s commitment is subject to three conditions. However, those conditions (execution of the transaction, no material change to the assets purchased, no illegality or unlawfulness) did not allow Deutsche Bank to withdraw its commitment unless the acquisition failed to be carried out in accordance with the conditions stipulated.
128
In the light of the foregoing, it does not appear that the Commission ought to have had doubts as to the binding nature of the letter from Deutsche Bank of 10 March 2014.
129
On the contrary, and as rightly noted by the Commission in recital 272 of the final decision, the applicant never provided proof of financing in respect of its offer.
130
On 30 September 2013, the applicant submitted an indicative offer for all the Nürburgring assets, amounting to EUR 150 million. That offer was not supported by proof of its financing capacity, a fact which KPMG pointed out to the applicant in its letters of 11 and 17 December 2013 and in a letter of 18 December 2013. The applicant also received the letter from KPMG of 17 October 2013 stating that any sources of financing relying on third parties had to be supported by binding financing commitment letters.
131
On 17 February 2014, the applicant submitted a final offer amounting to EUR 110 million for all assets. It claimed at that time that it had obtained a binding financing commitment of EUR 30 million from DRC Capital LLP. However, no document from DRC Capital was provided with the offer, a fact which KPMG pointed out to the applicant in an email of 18 February 2014.
132
On 21 February 2014, the applicant stated that it should have all binding financing commitments within a period of two to five weeks. On 11 March 2014, it claims to have provided an updated version of the final offer, amounting to EUR 150 million, and confirmed that it would submit all binding financing commitments by 31 March 2014. Finally, it asserts that it received a financing commitment from Jupiter Financial on 26 March 2014 but acknowledges that it never sent this to KPMG. In an email of 9 April 2014, KPMG pointed out to the applicant that it had still not received written confirmation from third-party financing sources to support its offer.
133
As is apparent from the foregoing, the buyer, whose offer was successful, had, first, two preparatory letters from Deutsche Bank of 17 and 25 February 2014, and then the letter from Deutsche Bank of 10 March 2014, in respect of which it does not appear that the Commission ought to have had doubts as to its binding nature, whereas the applicant, whose offer was not successful, at no time provided any proof of financing. Moreover, the requirement for a binding financing commitment was brought to the applicant’s attention on several occasions.
134
In view of the foregoing, it cannot be found that the Commission, in the light of the matters of fact and of law put forward by the applicant, ought to have had doubts as to the possible existence of an advantage conferred on the buyer in the tender process due to the alleged discriminatory nature of that process in the light of the requirement for a binding financing commitment.
(iii) The claim relating to the amount and financing of the offers made by Capricorn and by the applicant
135
In the context of the present claim, the applicant submits that it offered the highest purchase price as well as secured financing, whereas Capricorn’s offer, which was ultimately successful, was lower than its own and lacked secured financing.
136
Given that the final purchase price offered by the applicant amounted to EUR 110 million, whereas Capricorn’s offer amounted to EUR 77 million, the applicant is right to assert that its purchase price offer was higher than that of Capricorn.
137
However, in accordance with the case-law referred to in paragraph 116 above, it cannot be presumed that the market price corresponds to the highest offer submitted in an open, transparent and unconditional tender procedure unless it has been established that that offer is binding and credible.
138
In the present case, as set out in the letters addressed to them on 19 July and 17 October 2013 by KPMG, interested investors were to be selected, inter alia, on the basis of the requirement for transaction security (see ninth indent of paragraph 9 above).
139
However, the applicant is wrong to claim that it offered secured financing since at no time did it produce any proof of financing. It is apparent from recital 272 of the final decision that the German authorities could, in the absence of proof of its financial capacity and solvency, cast doubt on its capacity to raise sufficient funds to pay the purchase price that it was offering and, accordingly, on the credibility of its offer and its compliance with the requirement for payment security with regard to the sale price.
140
By contrast, Capricorn had, first, the two preparatory letters from Deutsche Bank of 17 and 25 February 2014, and then the letter from Deutsche Bank of 10 March 2014, the binding nature of which, it has already been noted, the Commission did not have to doubt (see paragraphs 128 and 133 above).
141
In addition, as stated in recital 273 of the final decision, only Bidder 2 and Capricorn, whose offers were both lower than that of the applicant but included financial pledges, participated in the final stage of the negotiations carried out in the tender process. The sellers therefore compared Capricorn’s offer with that of Bidder 2. This is confirmed by the fact that, according to the sellers’ lawyers, on 26 February 2014 the confirmatory offer of Bidder 2 was the best offer, albeit of a lower amount than that of Capricorn, and that it is precisely because of the latter’s higher bid that the sellers also attempted to finalise the sale of the Nürburgring assets with Capricorn. However, it is apparent from recital 273 of the final decision that both the offer and the financial pledge submitted in fine by Capricorn were higher than the offer and the financial pledge submitted by Bidder 2.
142
It has therefore not been established that the Commission ought to have doubted the fact that Capricorn was the tenderer which submitted the highest binding and credible offer, based not only on the price offered but also on the proof furnished in terms of transaction security. In other words, it has not been established that it ought to have had doubts as to whether ‘the assets in question [had] been sold to the bidder who submitted the highest bid including a proof of its financing’, as observed in recital 276 of the final decision, and as to the fact that there was ‘[no] offer with a higher price bid with secured financing compared to the price bid made by Capricorn’, as observed in recital 281 of that decision.
143
This claim must therefore also be rejected.
144
In accordance with the case-law referred to in paragraphs 114 to 117 above, the examination carried out by the Commission was therefore of such a kind as to rule out any doubt as to whether there had been any undue advantage in favour of the buyer in the tender process and, therefore, as to whether any State aid had been granted to the latter. Accordingly, it cannot be held that the first part of the first plea points to serious difficulties in assessing the sale of the Nürburgring assets that would have required the Commission to initiate the formal investigation procedure laid down in Article 108(2) TFEU.
145
Consequently the first part of the first plea in law must be rejected.
(2) The second part of the first plea in law, alleging an advantage conferred on the buyer in the lease of the Nürburgring assets
146
By the second part of the first plea, the applicant submits that an advantage was also conferred on the buyer in the lease of the Nürburgring assets. It follows from recital 56 of the final decision that that lease was concluded between a company independent of the sellers, operating in actual fact as trustee of those assets, and an operating company created by Capricorn for a period starting on 1 January 2015 with a view to structuring a temporary situation corresponding to the possible realisation of the condition to which the sale of the Nürburgring assets to Capricorn was subject, namely the adoption by the Commission of a decision ruling out any risk that the buyer of those assets might be required to reimburse the aid to the sellers. The annual lease did not exceed EUR 5 million, whereas, according to the applicant, it ought to have been at least EUR 7.7 million.
147
The Commission disputes that line of argument and contends, inter alia, that the lease was no more than the advance payment of portions of the sales price of the Nürburgring assets, which was itself consistent with market conditions.
148
For the reasons set out in paragraphs 119 to 133 above, it cannot be considered that the Commission ought to have had doubts as to whether the tender process was transparent and non-discriminatory.
149
For those same reasons, the Commission was justified in having no doubt as to whether an advantage had been conferred on the buyer in the tender process, including in relation to the lease of the Nürburgring assets that had been negotiated in case the conditions set for the sale to be perfected were not satisfied.
150
The second part of the first plea in law must therefore be rejected.
(3) The third part of the first plea in law, alleging use of State resources in connection with the sale of the Nürburgring assets to the buyer
151
By the third part of the first plea, the applicant submits that the Commission failed to examine whether State resources were involved in connection with the sale of the Nürburgring assets to Capricorn. According to the applicant, the Commission should have found that that was the case.
152
The Commission disputes that line of argument.
153
It should be recalled that the Commission may decide to take no further action on a complaint when it is able to rule out at the outset classifying the measures in question as State aid after finding that one of the conditions that are fundamental to the application of Article 107(1) TFEU is not satisfied (see, to that effect, judgment of 5 April 2006, Deutsche Bahn v Commission, T‑351/02, EU:T:2006:104, paragraph 104).
154
In the present case, by examining, in recitals 266 to 281 of the final decision, whether the tender process had been open, transparent, non-discriminatory and unconditional and whether Capricorn was the tenderer which submitted the highest offer with proof of its financing, the Commission intended, in essence, to check that the Nürburgring assets had been sold at their market price, in accordance with the case-law referred to in paragraph 116 above.
155
If the Nürburgring assets were sold at a price lower than the market price, as recalled in paragraph 115 above, undue advantage could have been conferred on the buyer (judgment of 28 March 2012, Ryanair v Commission, T‑123/09, EU:T:2012:164, paragraph 161). The Commission’s examination therefore concerned the issue of whether, in the present case, such an advantage had been conferred on Capricorn in connection with the tender process.
156
The Commission concluded that, in the absence of such an advantage, no State aid had been granted to Capricorn in connection with the sale of the Nürburgring assets. In other words, the Commission found that one of the conditions that are fundamental to the application of Article 107(1) TFEU, relating to the existence of an advantage, was not satisfied.
157
Accordingly, it cannot validly be argued that the Commission failed to examine also whether the condition relating to an intervention by the State or through State resources was satisfied.
158
Consequently, it is appropriate to hold that the examination of the third part of the first plea and, accordingly, of the first plea in its entirety, has revealed no evidence that doubts existed as to the classification as State aid of the sale of the Nürburgring assets that would have required the initiation of the formal investigation procedure set out in Article 108(2) TFEU.
159
The first plea in law, read in the light of the first part of the fourth plea in law, must therefore be rejected.
(e)
The third plea in law, alleging a failure to take account of the continuation of the sales process by the transfer, to a sub-purchaser, of Capricorn’s shares in the acquisition vehicle for the Nürburgring assets
160
By its third plea, the applicant maintains that the Commission was wrong to state, in the final decision, that the sales process relating to the Nürburgring assets was concluded on 11 March 2014 with the award to Capricorn.
161
The applicant claims that the sellers continued the sales process from July 2014, after Capricorn had made clear that it was unable to pay the second instalment of the purchase price. According to the applicant, informal negotiations took place from September 2014, during which the sellers themselves proposed the sale of the Nürburgring assets, leading to the transfer to a sub-purchaser, on 28 October 2014, of Capricorn’s shares in the acquisition vehicle for those assets. The continuation of the sales process was, it is claimed, not conducted in an open, transparent, non-discriminatory and unconditional manner either.
162
In the applicant’s view, the transfer, to a sub-purchaser, of Capricorn’s shares in the acquisition vehicle for the Nürburgring assets constituted the conclusion of the sales process relating to those assets and was carried out in the sellers’ interests and not in Capricorn’s interests. Capricorn gained no advantage from that transfer, the applicant argues, beyond that relating to the extinction of its contractual obligations. The applicant claims that the fact that the price for the transfer of those shares was identical to that of the sale of the Nürburgring assets to Capricorn did not justify the failure to launch, in the present case, a new tender process.
163
The Commission disputes that line of argument.
164
For the reasons already set out in paragraphs 103 and 104 above, the Commission cannot be criticised for not taking a view, in the final decision, on the continuation of the sales process by the transfer, to a sub-purchaser, of Capricorn’s shares in the acquisition vehicle for the Nürburgring assets, since that transfer took place, as the applicant itself recognises, after that decision had been adopted.
165
In addition, while it is apparent from a news article of 30 September 2014 that Deutsche Bank withdrew its financing to Capricorn and that the administrators searched for new purchasers for the Nürburgring assets, the applicant failed to establish that that information had been available to the Commission at the time of adopting the final decision.
166
In any event, in accordance with the case-law cited in paragraphs 114 to 117 above, and as the Commission contended in its observations of 13 December 2017 in response to the Court’s written questions, its examination was designed to ascertain whether the tender process had been carried out in an open, transparent, non-discriminatory and unconditional manner in order to determine whether or not the Nürburgring assets had been sold at their market price. Otherwise, those assets might have been sold at a price lower than the market price, and undue advantage might have been conferred on the buyer.
167
Consequently, it is appropriate to take the view that the aid, which, according to the applicant (see paragraph 10 above), should have been established by the Commission in the second contested decision and which would have corresponded to the difference between the price paid by Capricorn to purchase the Nürburgring assets and the market price of those assets, would have been granted to Capricorn on 11 March 2014, the date on which the Nürburgring assets were awarded to Capricorn and the sales agreement setting the purchase price for the Nürburgring assets owed by Capricorn was signed. It follows that the facts subsequent to that date, such as the difficulties faced by Capricorn for the execution of the sales agreement and the transfer to a sub-purchaser, by Capricorn, of its shares in the acquisition vehicle for the Nürburgring assets, were not relevant in assessing whether aid might have been granted to Capricorn in the tender process.
168
Lastly, as the Commission rightly contended in its observations of 13 December 2017 in response to the Court’s written questions, had the applicant wished that the Commission also investigated whether new aid stemmed from the alleged continuation of the sales process, subsequent to the adoption of the second contested decision, it should have lodged a new complaint in that respect.
169
It follows that the arguments put forward in support of the third plea, alleging a failure to take account of the continuation of the sales process after the adoption of the second contested decision, do not make it possible to establish that, after the preliminary examination stage, the Commission was facing difficulties in assessing the sale of the Nürburgring assets that would have required the initiation of a formal investigation procedure.
170
The third plea in law, read in the light of the first part of the fourth plea in law, must therefore be rejected.
(f)
The fifth plea in law, alleging a failure to state reasons
171
By its fifth plea, the applicant argues that the Commission failed to respond to its claims regarding (i) the examination of the requirement for transaction security, (ii) the continuation of the sales process and the sale of the Nürburgring assets to a sub-purchaser, (iii) the use of State resources and the involvement of the State in the conclusion of the sale and of the lease relating to the Nürburgring assets, (iv) the additional granting to the buyer of State aid in the amount of EUR 6 million, corresponding to the partial payment of the purchase price out of the 2014 profits of the Nürburgring manager (see paragraph 6 above), (v) the role of the law firm representing the buyer and the sellers, (vi) the discriminatory nature of the tender process as regards the agreements relating to the operation of the Nürburgring, (vii) the lease between the buyer and the sellers and the issue of whether it amounted to State aid, and (viii) the verification of the purchase price of the Nürburgring assets on the basis of expert opinions.
172
The applicant also submits that the Commission failed to provide clear and unequivocal reasons concerning, on the one hand, the arrangement, referred to in recital 56 of the final decision, put in place after the conclusion of the sale of the Nürburgring assets in order to ensure the temporary operation of those assets pending a non-challengeable decision by the Commission clarifying Capricorn’s legal position with regard to the aid to the sellers and, on the other hand, the requirement for transaction security.
173
Lastly, the applicant claims that the Commission failed to provide more detailed reasoning in relation to alleged changes in its decision-making practice, in the context of the examination of the requirement for transaction security and the existing links between the administrators and the State.
174
The Commission disputes that line of argument.
175
The statement of reasons required by the second paragraph of Article 296 TFEU must enable the parties concerned to ascertain the reasons for the measure and must enable the EU judicature to carry out its review (see, as to State aid, judgments of 6 September 2006, Portugal v Commission, C‑88/03, EU:C:2006:511, paragraphs 88 and 89; of 22 April 2008, Commission v Salzgitter, C‑408/04 P, EU:C:2008:236, paragraph 56; and of 30 April 2009, Commission v Italy and Wam, C‑494/06 P, EU:C:2009:272, paragraphs 48 and 49). The Commission must provide the complainant with an adequate explanation of the reasons for which the facts and points of law put forward in the complaint have failed to demonstrate the existence of State aid (judgments of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 64, and of 1 July 2008, Chronopost and La Poste v UFEX and Others, C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraph 89).
176
In the present case, recitals 266 and 281 of the final decision, under the heading ‘Complaints on the sale of [the Nürburgring] assets’, include a detailed account of the reasons that led the Commission to decide that the sale of the Nürburgring assets to Capricorn did not constitute State aid. That account provides an adequate explanation to enable the parties concerned to ascertain the reasons for the measure and to enable the EU judicature to carry out its review and for the applicant to understand the reasons for which the facts and points of law put forward in its complaint have failed to demonstrate the existence of State aid.
177
In particular, and contrary to the applicant’s assertions, the Commission did not fail to reply to its claims concerning the requirement for transaction security, which were examined in recitals 272 and 273 of the final decision relating to proof of financing of the offers made by the applicant and by Capricorn, the negotiation of agreements relating to the operation of the Nürburgring by Capricorn, which is mentioned in recital 275(e) of the final decision, or the role of the law firm representing the buyer and the sellers, mentioned in recital 275(j) of the final decision.
178
Accordingly, even if the Commission had failed to reply to other claims raised by the applicant in its complaint, such a failure could not amount to a breach of the obligation to state reasons, since the latter does not require the Commission to set out any elements other than the facts and the legal considerations which it deems of fundamental importance in the context of the decision. The necessary correlation between the grounds relied on by the complainant and the statement of reasons for the Commission’s decision cannot mean that the Commission is obliged to reject each of the arguments put forward in support of those grounds (see judgments of 1 July 2008, Chronopost and La Poste v UFEX and Others, C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraph 96 and the case-law cited, and of 3 March 2010, Freistaat Sachsen v Commission, T‑102/07 and T‑120/07, EU:T:2010:62, paragraph 180 and the case-law cited).
179
This applies all the more with regard to a decision adopted after the preliminary stage of the procedure for reviewing aid which, that decision being taken in a short space of time, need contain only the reasons for which the Commission considers that it is not faced with such serious difficulties in assessing the measure concerned as to justify the initiation of the formal investigation phase (judgments of 15 June 1993, Matra v Commission, C‑225/91, EU:C:1993:239, paragraph 48, and of 22 December 2008, Régie Networks, C‑333/07, EU:C:2008:764, paragraph 65).
180
It follows that the fifth plea, alleging a failure to state reasons, does not make it possible to establish that, after the preliminary examination stage, the Commission was facing difficulties in assessing the sale of the Nürburgring assets that would have required the initiation of a formal investigation procedure.
181
In the light of the foregoing considerations the fifth plea in law must be rejected.
182
It follows that neither the first part of the fourth plea in law nor the first, third and fifth pleas in law make it possible to establish that, after the preliminary examination stage, the Commission was facing difficulties in assessing the sale of the Nürburgring assets that would have required the initiation of a formal investigation procedure.
(g)
The second part of the fourth plea in law, alleging infringement of the second subparagraph of Article 20(2) of Regulation No 659/1999
183
By the second part of the fourth plea, the applicant maintains that the Commission infringed the second subparagraph of Article 20(2) of Regulation No 659/1999, in that it failed to inform the applicant of its intention to reject its complaint and also failed to invite it to submit further comments.
184
The Commission disputes that line of argument.
185
As amended by Council Regulation (EU) No 734/2013 of 22 July 2013 amending Regulation No 659/1999 (OJ 2013 L 204, p. 15), the second subparagraph of Article 20(2) of Regulation No 659/1999 provides that ‘where the Commission considers that the interested party does not comply with the compulsory complaint form, or that the facts and points of law put forward by the interested party do not provide sufficient grounds to show, on the basis of a prima facie examination, the existence of unlawful aid or misuse of aid, it shall inform the interested party thereof and call upon it to submit comments within a prescribed period which shall not normally exceed one month’. In addition, ‘if the interested party fails to make known its views within the prescribed period, the complaint shall be deemed to have been withdrawn’.
186
As amended by Regulation No 734/2013, the third subparagraph of Article 20(2) of Regulation No 659/1999 provides that ‘the Commission shall send a copy of the decision on a case concerning the subject matter of the complaint to the complainant’.
187
Article 20(2) of Regulation No 659/1999 must be read in the light of the rule in paragraph 48 of the Code of Best Practice for the conduct of State aid control procedures (OJ 2009 C 136, p. 13), which provides that, within 12 months, the Commission will, in principle, endeavour to adopt a decision for priority cases pursuant to Article 4 of Regulation No 659/1999, with a copy addressed to the complainant, or send an initial administrative letter to the complainant setting out its preliminary views on non-priority cases.
188
According to the second and third subparagraphs of Article 20(2) of Regulation No 659/1999, which governs the rights of the interested party, the Commission, after obtaining from the interested party information concerning alleged unlawful aid, will either consider that there are insufficient grounds for taking a view on the case and inform the interested party thereof or take a decision on a case concerning the subject matter of the information supplied (judgment of 18 November 2010, NDSHT v Commission, C‑322/09 P, EU:C:2010:701, paragraph 55).
189
In the present case, the Commission took a decision by examining the information supplied by the applicant and stating its view on that information.
190
It is therefore appropriate to find that the Commission did not infringe the second subparagraph of Article 20(2) of Regulation No 659/1999.
191
The second part of the fourth plea in law must therefore be rejected.
192
The Court will now turn to the fourth part of the fourth plea in law, and then to the third part of the fourth plea in law.
(h)
The fourth part of the fourth plea in law, alleging a failure to carry out a diligent examination of the applicant’s complaint
193
By the fourth part of the fourth plea, the applicant submits that the Commission failed to carry out a diligent examination of the tender process. In particular, it claims that the Commission failed to ask the sellers or the German authorities for further information, but relied solely on information provided by the administrators to the German authorities, the reliability of which it ought to have checked. Furthermore, the applicant submits that the Commission failed to act on the applicant’s request of 6 July 2014 inviting it to put further questions to the Federal Republic of Germany and to the third parties concerned.
194
The Commission disputes that line of argument.
195
According to the case-law of the Court of Justice, the Commission is required to conduct a diligent and impartial examination of the complaints it receives concerning State aid, which might oblige it to extend its investigation of a complaint beyond a mere examination of the facts and points of law brought to its notice by the complainant and to examine matters not expressly raised by the complainant (judgments of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 62, and of 2 September 2010, Commission v Scott, C‑290/07 P, EU:C:2010:480, paragraph 90).
196
In the context of State aid control, even though a Member State must, in accordance with the duty of sincere cooperation laid down in Article 4(3) TEU, cooperate with the Commission by providing it with the information that will allow the Commission to take a decision on whether the measure at issue involves State aid, the fact remains that the Commission is under an obligation, in the interest of sound administration of the fundamental rules of the Treaty relating to State aid, to carry out a diligent and impartial examination and that that obligation requires, in particular, a careful examination of the information which the Member State provides to the Commission (see judgment of 22 October 2008, TV2/Danmark and Others v Commission, T‑309/04, T‑317/04, T‑329/04 and T‑336/04, EU:T:2008:457, paragraph 183 and the case-law cited).
197
Thus, the Commission, although it enjoys a discretion, cannot, however, in view of its duty to undertake a diligent and impartial investigation, omit to require the disclosure of information which appears likely to confirm or to refute other information which is relevant for the examination of the measure at issue, but the reliability of which cannot be considered to be sufficiently established (judgment of 26 June 2008, SIC v Commission, T‑442/03, EU:T:2008:228, paragraph 225).
198
Lastly, it is in the light of both the information notified by the State concerned and that provided by any complainants that the Commission must form its assessment in the context of the preliminary examination instituted by Article 108(3) TFEU (judgment of 3 May 2001, Portugal v Commission, C‑204/97, EU:C:2001:233, paragraph 35).
199
By a first claim, the applicant alleges a failure by the Commission to carry out a diligent examination of its complaint in that the Commission failed to act on its request of 6 July 2014 inviting it to put further questions to the Federal Republic of Germany and to the third parties concerned.
200
In that regard, it must be borne in mind that, as has been set out in paragraph 178 above, the Commission is not obliged to adopt a position on all the arguments relied on before it by the parties concerned. It is sufficient if it sets out the facts and the legal considerations of fundamental importance in the context of the decision (see judgments of 1 July 2008, Chronopost and La Poste v UFEX and Others, C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraph 96 and the case-law cited, and of 3 March 2010, Freistaat Sachsen v Commission, T‑102/07 and T‑120/07, EU:T:2010:62, paragraph 180 and the case-law cited).
201
Therefore, since the applicant has failed to establish that the Commission omitted to search for or verify the information necessary for the adoption of the second contested decision, that claim must be rejected.
202
By a second claim, the applicant alleges a failure by the Commission to carry out a diligent examination of its complaint in that the Commission failed to ask the sellers or the German authorities for further information, but relied solely on information provided by the administrators to the German authorities.
203
In that regard, it is apparent from the documents in the case file that, after the applicant’s complaint had been lodged, the Commission requested information from the German authorities on 23 May and 4 and 7 July 2014, which was provided on 23 April, 26 May and 10 July 2014. The Commission services met with representatives of the German authorities, the administrators and KPMG on 22 July and 5 September 2014.
204
In recitals 272 to 276 of the final decision, the Commission examined and compared the comments of the administrators sent by the German authorities, set out in recitals 121 to 135 of the final decision, with those of the applicant, set out in recitals 115 to 120 of the final decision. The Commission provided its own findings and comments with respect to the relevant aspects, in particular proof of the applicant’s financing capacity for the acquisition of the Nürburgring assets, on the one hand, and that of Capricorn, on the other hand.
205
The Commission thus, in the present case, did indeed examine and assess the information provided by both the applicant and the German authorities. In that respect, there is nothing to justify the conclusion that the Commission failed to carry out an adequate investigation or that it failed to carry out a diligent examination of the complaint.
206
It is therefore appropriate to reject that second claim and, accordingly, to reject the fourth part of the fourth plea in law as unfounded.
(i)
The third part of the fourth plea in law, alleging a failure to carry out an impartial examination of the applicant’s complaint
207
By the third part of the fourth plea, the applicant submits that it became impossible for the Commission to carry out an impartial examination of its complaint because of a statement by the spokesperson of the member of the Commission responsible for competition matters reported in the press on 15 May 2014 (‘the statement at issue’). According to that statement, as reported in the news article produced by the applicant, on the basis of the information allegedly available to the Commission, the German authorities followed guidance from the member of the Commission responsible for competition matters in a letter at the beginning of the sales process for the Nürburgring assets and that the latter were sold to the highest bidder in an open, transparent and non-discriminatory selection procedure, that is to say, after a lawful tender process and at the market price.
208
The Commission disputes that line of argument.
209
It is settled case-law on antitrust violations and abuses of dominant position that an irregularity, such as leaks to the press not restricted to expressing the personal views of the member of the Commission responsible for competition matters regarding the compatibility with EU law of the measures under examination, may lead to annulment of the decision concerning those measures if it is established that the content of that decision would have differed if that irregularity had not occurred (judgments of 16 December 1975, Suiker Unie and Others v Commission, 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73, EU:C:1975:174, paragraph 91, and of 6 July 2000, Volkswagen v Commission, T‑62/98, EU:T:2000:180, paragraph 283).
210
Under that same case-law, it is for the applicant to produce at least some indicia to support such a conclusion (judgment of 15 March 2006, BASF v Commission, T‑15/02, EU:T:2006:74, paragraph 606).
211
That case-law, which relates to the application of Articles 101 and 102 TFEU, can be applied, by analogy, to proceedings concerning State aid relating to the application of Articles 107 and 108 TFEU, and, in particular, in the present case.
212
In accordance with that case-law, it is appropriate to note that the applicant had not adduced any evidence or any indicia that, had the statement at issue not been made, the content of the final decision would have differed. The Court has found that the examination of the first, third and fifth pleas and of the first part of the fourth plea do not make it possible to establish that, after the preliminary examination stage, the Commission was facing difficulties in assessing the sale of the Nürburgring assets that would have required the initiation of a formal investigation procedure. The Court has also found that the fourth part of the fourth plea did not make it possible to establish that the Commission failed to carry out an adequate investigation or that it failed to carry out a diligent examination of the complaint.
213
Without there being any need to rule on the nature or the scope of the statement at issue, it is thus appropriate to reject the third part of the fourth plea in law and, therefore, to reject the fourth plea in law in its entirety.
214
Since the pleas seeking annulment of the second contested decision for breach of the procedural rights available to the applicant under Article 108(2) TFEU have been rejected, the application for annulment of that decision must be dismissed.
215
The applicant has relied on various oral testimonies. Since those testimonies do not appear necessary to the outcome of the dispute and, in particular, to ascertain whether the facts and indicia put forward by the applicant should have led the Commission to have doubts, they must be rejected.
216
In the light of all the foregoing, it must be concluded that the action must be dismissed as inadmissible in part and unfounded as to the remainder.
IV. Costs
217
Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (First Chamber, Extended Composition)
hereby:
1.
Orders that the application for a decision that there is no need to adjudicate on the action be considered together with the substance of the case;
2.
Orders that the application for a decision that there is no need to adjudicate on the action be dismissed;
3.
Dismisses the action;
4.
Orders NeXovation, Inc. to bear its own costs and to pay those incurred by the European Commission.
Pelikánová
Valančius
Nihoul
Svenningsen
Öberg
Delivered in open court in Luxembourg on 19 June 2019.
E. Coulon
Registrar
S. Gervasoni
President
Table of contents
I. Background to the dispute
A. Administrative procedure and sale of the Nürburgring assets
B. The contested decisions
II. Procedure and forms of order sought
III. Law
A. Admissibility of the application for annulment of the first contested decision
B. The application for annulment of the second contested decision
1. Admissibility and the application for a decision that there is no need to adjudicate
2. Substance
(a) Preliminary observations on the scope of the judicial review concerning a decision that there is no aid, taken after the preliminary examination stage
(b) Preliminary observations on the subject matter of the action
(c) The first part of the fourth plea in law, alleging serious difficulties in assessing the sale of the Nürburgring assets
(1) The duration of the preliminary examination stage
(2) The content of the second contested decision
(d) The first plea in law, alleging misinterpretation of the meaning of State aid, with regard to the granting of State aid to the buyer in the tender process
(1) The first part of the first plea in law, on the advantage conferred on the buyer in the tender process
(i) The claim that the tender process was not transparent
(ii) The claim that the tender process was discriminatory
(iii) The claim relating to the amount and financing of the offers made by Capricorn and by the applicant
(2) The second part of the first plea in law, alleging an advantage conferred on the buyer in the lease of the Nürburgring assets
(3) The third part of the first plea in law, alleging use of State resources in connection with the sale of the Nürburgring assets to the buyer
(e) The third plea in law, alleging a failure to take account of the continuation of the sales process by the transfer, to a sub-purchaser, of Capricorn’s shares in the acquisition vehicle for the Nürburgring assets
(f) The fifth plea in law, alleging a failure to state reasons
(g) The second part of the fourth plea in law, alleging infringement of the second subparagraph of Article 20(2) of Regulation No 659/1999
(h) The fourth part of the fourth plea in law, alleging a failure to carry out a diligent examination of the applicant’s complaint
(i) The third part of the fourth plea in law, alleging a failure to carry out an impartial examination of the applicant’s complaint
IV. Costs
(
*1
)	Language of the case: English.