EN Official Journal of the European Union L 34/1

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

(notified under document C(2014) 3634)

(Only the German text is authentic)

(Text with EEA relevance)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union, and in particular the first subparagraph of Article 108(2) thereof,

Having regard to the Agreement on the European Economic Area, and in particular Article 62(1)(a) thereof,

Having called on interested parties to submit their comments pursuant to the provisions cited above (1) and having regard to their comments,

Whereas:

1. PROCEDURE

1.1. FORMAL INVESTIGATION

(1) Between 2002 and 2012, Germany undertook a number of support measures regarding the German race track Nürburgring, including support measures relating to the construction of a leisure park, hotels and restaurants as well as the organisation of Formula 1 races. The Nürburgring complex was owned by State-owned companies Nürburgring GmbH (‘NG’), Motorsport Resort Nürburgring GmbH (‘MSR’) and Congress- und Motorsport Hotel Nürburgring GmbH (‘CMHN’).

(2) In July 2010, Eifelpark GmbH (‘Eifelpark’), an owner of a leisure park in the German Eifel region informed the Commission about alleged State aid involved in the so-called ‘Nürburgring 2009’ project and concerning the financing of the construction of leisure facilities at the Nürburgring racetrack. In April 2011, the Commission received a second State aid complaint by the German motorsport association ‘Ja zum Nürburgring e.V.’. The latter was concerned that the — allegedly loss-making — Nürburgring 2009 project puts the activities of the racetrack itself into jeopardy.

(3) By letter dated 21 March 2012 (‘the decision of 21 March 2012’), the Commission informed Germany that it had decided to initiate the procedure laid down in Article 108(2) of the Treaty on the Functioning of the European Union (‘TFEU’) in respect of the aid measures 1-17 described in Section 2 of the present decision (‘the formal investigation procedure’) (2). The Commission decision to initiate the procedure was published in the Official Journal of the European Union (3). The Commission invited interested parties to submit their comments on the measures.

(4) On 15 May 2012, Germany granted new support measures (measures 18 and 19) described in Section 2 below and notified them on 25 May 2012. By letter dated 7 August 2012 (‘the decision of 7 August 2012’), the Commission informed Germany that it had decided to extend the formal investigation procedure in respect of the new aid measures (4). The Commission decision to extend the procedure was published in the Official Journal of the European Union (5). The Commission invited interested parties to submit their comments on the new measures.

(5) The Commission received comments from Germany on 23 April 2012, 15 June 2012, 18 July 2012, 20 July 2012, 17 August 2012, 7 September 2012 and 18 January 2013. Concerning the decision of 21 March 2012, nine interested parties provided the Commission with comments between 9 August 2012 and 18 October 2012. On 18 October 2012 and 23 October 2012, the Commission forwarded the comments of the interested parties to Germany. Germany replied on 15 November 2012. In relation to the decision of 7 August 2012, comments from three interested parties were received by the Commission between 5 November 2012 and 30 November 2012. On 3 December 2012, the Commission forwarded the comments of the interested parties to Germany. Germany replied on 2 January 2013.

(6) The Commission requested further information from Germany on 29 January 2013, 4 June 2014 and 5 June 2014, to which Germany replied on 15 April 2013, 4 June 2014 and 6 June 2014, respectively.

1.2. INSOLVENCY PROCEEDINGS AND SALE OF ASSETS

(7) On 24 July 2012, the local court in Bad Neuenahr-Ahrweiler ordered a preliminary own administration of the assets (‘vorläufige Eigenverwaltung des Vermögens’) of the companies owning the Nürburgring, i.e. NG, MSR and CMHN. Insolvency proceedings in the form of own administration of the assets (‘Eigenverwaltung des Vermögens’) were eventually launched by the local court on 1 November 2012. The business of NG, MSR and CMHN has been managed since by the managing director under insolvency law (‘Eigenverwalter’ or ‘Sanierunsgeschäftsführer’) and the insolvency administrator (‘Sachwalter’) (hereunder both referred to as ‘the insolvency administrators’) that are both not bound by instructions of the shareholders. NG, MSR and CMHN retained KPMG AG (‘KPMG’) to act on their behalf as the exclusive financial advisor to the sale of their assets in the insolvency proceedings, and to handle all contacts with the interested bidders.

(8) Since October 2012, the Commission has been discussing with Germany and the insolvency administrators the State aid issues that could arise in the sale of the assets of NG, MSR and CMHN.

(9) Since 1 November 2012, the whole complex has been operated by Nürburgring Betriebsgesellschaft mbH (‘NBG’), a 100 % subsidiary of NG, established by the insolvency administrators. NBG replaced the previous operator Nürburgring Automotive GmbH (‘NAG’) (6).

(10) In the context of the insolvency of NG, MSR and CMHN, the insolvency administrators have undertaken a sale of their assets since May 2013. On 15 May 2013, a tender process for the sale of those assets was launched. By two letters dated 23 May 2013, the Commission services provided to Germany and the insolvency administrator an opinion on the various options for selling the assets that would be compliant with the State aid rules (7).

(11) As regards the sale of assets of NG, MSR and CMHN, Germany provided information by submissions of 10 April 2013, 15 April 2013, 30 April 2013, 9 October 2013, 27 February 2014 and — following Commission's requests for information of 13 March 2014, 23 May 2014, 4 July 2014 and 7 July 2014 — on 23 April 2014, 26 May 2014 and 10 July 2014, respectively. Meetings between the Commission, Germany and the insolvency administrators took place in Brussels on 18 October 2012, 7 March 2013, 11 October 2013 and 26 February 2014. The Commission also received further submissions from interested parties.

(12) On 23 December 2013, ‘Ja zum Nürburgring e.V.’ (‘complainant 1’) (8) and on 2 January 2014, the German automotive club ADAC e.V. (‘complainant 2’), the latter automotive club participating in the sale process, submitted letters claiming that the ongoing sale of the Nürburgring assets was carried out by the insolvency administrators in breach of the State aid rules. On 4 February 2014, complainant 1 asked the Commission to suspend the sales process and provided new information. Following a letter from the Commission of 13 January 2014, Germany sent its comments on the claims raised by the two complainants by letter dated 10 February 2014. Complainant 1 submitted further comments on 8 July 2014, on which Germany submitted its comments on 14 July 2014.

(13) On 10 April 2014, [Bidder 3], Inc. (‘complainant 3’ or ‘[Bidder 3]’), participating in the sale process, lodged a complaint on that process with the Commission. On 17 April 2014, Mr Meyrick Cox (‘complainant 4’), a member of the consortium [Bidder 2], participating in the sale process and consisting of [Bidder 2] European Capital Partners LLP, Mr Meyrick Cox, Mr Marcus Graf von Oeynhausen-Sierstorpff and Wadell & Reed, Inc. (‘[Bidder 2]’), filed a complaint on that process with the Commission. These complaints were forwarded to Germany on 16 April 2014 and 17 April 2014, respectively. As for the complaint filed by complainant 4, Germany sent its comments on 25 April 2014. As for the complaint filed by complainant 3, Germany sent its comments on 5 May 2014. Complainant 3 sent additional arguments on 19 May 2014. Germany sent its comments to these additional arguments on 22 May 2014. Complainant 3 submitted a further piece of information on 23 May 2014, on which Germany submitted its answer on 10 July 2014, and sent further comments on 16 June 2014 and 7 July 2014, on which Germany sent its comments on 11 July 2014. The German authorities submitted further information on 29 July 2014, 20 August 2014, 8 September 2014 and 12 September 2014, which also covered comments submitted by complainants 3 and 4 on 3 September 2014, 21 August 2014 and 12 September 2014. Finally, two meetings between the Commission services and the German authorities, the insolvency administrators and KPMG took place on 22 July and 5 September 2014 in Brussels.

(14) In view of a potential conclusion of the formal investigation procedure by a negative Commission decision requesting the recovery of incompatible aid, Germany has requested the Commission to confirm that a recovery obligation imposed on NG, MSR and CMHN would not concern the buyer of the assets sold or its subsidiary being an operating company, and that that recovery obligation would not hinder the operation of the Nürburgring by NBG during the season of 2014, following which a liquidation of the latter company is foreseen.

2. DESCRIPTION OF THE AID MEASURES

2.1. THE AID DONORS

(15) Five entities have granted funding: (1) the Land Rhineland-Palatinate (9) (‘the Land’); (2) Investitions- und Strukturbank Rheinland-Pfalz GmbH (‘ISB’), fully owned by the Land; (3) Rheinland-Pfälzische Gesellschaft für Immobilien und Projektmanagement GmbH (‘RIM’), fully owned by ISB; (4) the district (‘Landkreis’) of Ahrweiler; and (5) NG (10).

2.2. THE ALLEGED BENEFICIARIES

(16) Until 30 April 2010, the Nürburgring complex (11) was owned and managed by NG.

(17) On 1 May 2010, a restructuring of the ownership and management of the Nürburgring complex took place. NG remained the owner of the race track and the leisure park and acquired indirect ownership of the hotels and restaurants via the 93,3 % ownership of MSR (12) and the indirect 93,3 % ownership of CMHN (13) (MSR and CMHN remained the direct owners of the hotels and restaurants). The operation of the race track, the leisure park, hotels and restaurants was granted to NAG (14) on the basis of a business lease contract (‘Betriebspachtvertrag’), see measure 10 (15).

(18) As described above, the beneficiaries NG, MSR and CMHN are subject to insolvency proceedings. Further beneficiaries for which a liquidation procedure has been launched are IPC Gesellschaft für internationale Projektcoordination mbH (‘IPC’) (16), Weber Projektierungs- und Realisierungs GmbH (‘Weber’) (17) and Cash Settlement and Ticketing GmbH (‘CST’) (18).

(19) The beneficiaries which still operate and are not in an insolvency procedure are Mediinvest GmbH, renamed to Return Projektmanagement GmbH in the meantime (‘Mediinvest’) (19), Geisler & Trimmel General Contractor GmbH (‘Geisler & Trimmel’) (20), NAG and Fahrsicherheitszentrum am Nürburgring GmbH & Co. KG (‘FSZ’) (21). The beneficiaries which do not exist any longer are Erlebnispark Nürburgring GmbH & Co. KG (‘EWN’) (22), Motorsport Akademie Nürburgring GmbH & Co. KG (‘MAN’) (23), Test & Training International GmbH (‘TTI’) (24), Bike World Nürburgring GmbH (‘BWN1’) (25), BikeWorld Nürburgring Besitz (‘BWNB’), BikeWorld Nürburgring GmbH (‘BWN2’), Camp 4 Fun GmbH & Co. KG (‘Camp4Fun’) (26) and MI-Beteiligungs- und Verwaltungs GmbH (‘MIB’) (27).

2.3. DESCRIPTION OF THE MEASURES

(20) The current investigation concerns the financing of the construction and operation of the facilities linked to the race track and the facilities for tourism before the ‘Nürburgring 2009’ project, of the construction of all such facilities under the ‘Nürburgring 2009’ project and of the organisation of Formula 1 races. The project ‘Nürburgring 2009’ intended to provide the race track with various attractions in order to increase its attractiveness over the whole year. The ‘Nürburgring 2009’ project consisted of part I (mainly tribune and entertainment facilities) and part II (mainly accommodation facilities) (28).

(a) Measures covered by the decision of 21 March 2012

(21) Measure 1 (provision of capital by the Land and the district of Ahrweiler to NG in the form of transfers to the capital reserve and increases of own capital): Capital in the form of transfers to the capital reserve (‘Einstellungen in die Kapitalrücklage’) (29) was granted by the Land to NG in the amounts of EUR 2 179 000 (30) on 1 May 2002 and EUR 22 839 241 (31) on 21 December 2004. In addition, the Land and the district of Ahrweiler carried out the increases of own capital (‘Kapitalerhöhung’) of NG of EUR 4 887 000 (32) on 31 August 2004 and EUR 10 000 000 on 4 September 2007. In total, the Land and the district of Ahrweiler provided to NG capital amounting to EUR 39 905 241 between 2002 and 2007.

(22) Measure 2 (shareholder loans of NG to its subsidiaries before the ‘Nürburgring 2009’ project): Independently from the ‘Nürburgring 2009’ project, NG granted to its subsidiaries the shareholder loans in the total amount of EUR 11 176 953,14, listed in Tables 1-4. The interest rate was agreed at 6 % and no collaterals were provided. Table 1 Loans granted by NG to EWN, FSZ, MAN, TTI and Camp4Fun Beneficiary Date of contract Amount (in EUR) Interest rate (%) EWN (33) 1.1.2006 4 853 553,04 6 EWN 30.6.2006 350 000 6 EWN 22.12.2006 350 000 6 EWN 4.7.2007 450 000 6 EWN 17.3.2009 182 313,24 6 EWN 29.4.2009 9 303,74 6 FSZ (34) 12.4.2002 […] (37) 6 FSZ 21.3.2003 […] 6 FSZ 4.3.2008 […] 6 MAN (35) 10.12.2002 100 000 6 TTI 15.8.2002 25 000 6 Camp4Fun (36) 26.5.2009 100 000 6 Camp4Fun 22.7.2009 100 000 6 Camp4Fun 2.11.2009 50 000 6 Camp4Fun 2.11.2009 50 000 6 Camp4Fun 18.12.2009 150 000 6 TOTAL […] Table 2 Loans granted by NG to BWNB before its renaming Date of contract Amount of loan (EUR) Interest rate (%) 17.10.2003 300 000,00 6 4.2.2004 100 000,00 6 27.10.2004 100 000,00 6 Total 500 000,00 Table 3 Loans granted by NG to BWN1 before its merger with BWNB Date of contract Amount of loan (EUR) Interest rate (%) 4.2.2004 100 000,00 6 12.3.2004 200 000,00 6 27.4.2004 200 000,00 6 24.11.2004 110 000,00 6 5.1.2005 200 000,00 6 7.1.2005 150 000,00 6 19.1.2005 100 000,00 6 22.2.2005 75 000,00 6 28.2.2005 75 000,00 6 21.4.2005 150 000,00 6 13.6.2005 100 000,00 6 30.6.2005 50 000,00 6 18.7.2005 50 000,00 6 22.7.2005 100 000,00 6 Total 1 660 000,00 Table 4 Loans granted by NG to BWN2 after its merger with BWNB and BWNB's renaming Date of contract Amount of loan (EUR) Interest rate (%) 20.9.2005 200 000,00 6 4.10.2005 50 000,00 6 2.11.2005 100 000,00 6 1.12.2005 50 000,00 6 2.1.2006 200 000,00 6 20.1.2006 200 000,00 6 28.2.2006 50 000,00 6 30.6.2006 20 000,00 6 15.8.2006 100 000,00 6 6.9.2006 130 000,00 6 15.1.2007 150 000,00 6 27.2.2007 100 000,00 6 4.4.2007 250 000,00 6 Total 1 600 000,00 6

(23) Measure 3 (loans provided by the Land to NG via the liquidity pool): This measure consists of loans from a so-called liquidity pool (38) of the Land provided by the latter to NG. In connection with the Formula 1 races and the ‘Nürburgring 2009’ project (39), NG had been included in the cash pooling of the Land since 2003 and 2008, respectively (40). ISB is also included in that liquidity pool. The aim of the cash pooling is to optimise the use of liquidity within the different holdings, foundations and public undertakings of the Land. The participation of the different undertakings and foundations in the cash pooling is based on a memorandum of understanding between the undertaking/foundation concerned and the Ministry of Finance of the Land. In the event that within the cash pooling, the liquidity demand exceeds the available funds, the liquidity gap is financed on short term basis on the capital market. From 30 June 2003 to 11 May 2010, the Land granted to NG loans totalling EUR 399 805 370 (including the loans granted by the Land to NG of EUR 53 443 493 for Formula 1 racing from 30 June 2003 to 30 June 2009, and the loans of EUR 170 million given by the Land to NG for the ‘Nürburgring 2009’ project from 23 June 2008 to 30 June 2010) (41). The aid beneficiary is NG. For details, see Table 5. Table 5 Loans paid out from the liquidity pool of the Land to NG (42) Date Amount paid out (EUR) Purpose Repayment of the loans (EUR) Average interest rate/year (%) 30.6.2003 7 000 000 Formula 1 fee 2,40 4.8.2003 – 1 000 000 19.9.2003 – 1 000 000 28.10.2003 – 1 000 000 1.1.2004 1 361 877 Interests for shareholder loans 2,06 30.6.2004 6 016 931 Formula 1 fee 18.2.2005 – 1 400 000 2,10 27.5.2005 2 000 000 Formula 1 fee 8.5.2006 10 000 000 Formula 1 fee 2,88 9.5.2006 – 8 000 000 23.6.2006 – 2 000 000 23.7.2007 13 000 000 Formula 1 fee 23.6.2008 4 000 000 Nürburgring 2009 project 3,87 21.7.2008 6 500 000 Nürburgring 2009 project 22.8.2008 2 500 000 Nürburgring 2009 project 26.8.2008 6 000 000 Nürburgring 2009 project 23.9.2008 80 000 000 Establishment of ‘Bardepot’ 25.9.2008 6 000 000 Nürburgring 2009 project 13.10.2008 10 000 000 Nürburgring 2009 project 19.11.2008 10 000 000 Nürburgring 2009 project 8.12.2008 – 80 000 000 19.1.2009 10 000 000 Nürburgring 2009 project 0,68 5.3.2009 95 000 000 Establishment of ‘Bardepot’ 26.3.2009 15 000 000 Nürburgring 2009 project 16.4.2009 10 000 000 Nürburgring 2009 project 5.5.2009 15 000 000 Nürburgring 2009 project 22.5.2009 15 000 000 Nürburgring 2009 project 29.6.2009 10 000 000 Nürburgring 2009 project 30.6.2009 15 426 562 Formula 1 fee 13.7.2009 – 95 000 000 24.7.2009 20 000 000 Nürburgring 2009 project 2.10.2009 15 000 000 Nürburgring 2009 project 24.3.2010 6 000 000 Nürburgring 2009 project 0,38 11.5.2010 9 000 000 Nürburgring 2009 project 30.6.2010 – 170 000 000 11.1.2011 – 40 405 000 13.1.2011 – 370

(24) Measure 4 (loan by NG to MSR): In the context of the ‘Nürburgring 2009’ project, NG granted a loan of EUR 300 000 to MSR with the interest rate of 7 % on 27 December 2007. No collaterals were provided.

(25) Measure 5 (loans, letter of comfort and subordination of claims by NG to CST): From 27 August 2008 to 18 April 2011, NG provided to CST loans of the total amount of EUR 11 032 060 with an interest of 6 % (43). Table 6 Loans granted by NG to CST Beneficiary Date of the loan Amount (in EUR) Interest rate (%) CST 27.8.2008 50 000 6 CST 9.10.2008 100 000 6 CST 30.1.2009 1 000 000 6 CST 18.3.2009 1 000 000 6 CST 17.4.2009 1 476 830,88 6 CST 22.6.2009 1 000 000 6 CST 20.7.2009 1 000 000 6 CST 28.10.2009 2 250 000 6 CST 10.2.2010 1 723 169,12 6 CST 12.10.2010 250 000 6 CST 13.10.2010 150 000 6 CST 5.11.2010 150 000 6 CST 30.10.2010 250 000 6 CST 9.2.2011 500 000 6 CST 18.4.2011 132 060 6 Total 11 032 060

(26) In order to prevent the insolvency of CST, on 23 December 2009, NG provided a letter of comfort (‘Patronatserklärung’) to CST committing itself until 31 December 2011 to take measures that are necessary for preventing insolvency of CST. The letter of comfort was acted upon. On 13 December 2010, NG declared subordination of its claims in the amount of EUR 10,4 million (‘Rangrücktritt’) against CST.

(27) Measure 6 (service fee paid by NG to IPC, and loan to MSR through PNG as intermediary): Between 2006 and 2008, IPC received a total amount of EUR 640 000 from NG as consideration for its services consisting in searching for private investors. In addition, NG granted a loan of EUR 3 million to Pinebeck Nürburgring GmbH (‘PNG’) with the interest rate of 6 % on 15 October 2008. On 15 October 2008, PNG used this loan for granting a loan of EUR 3 million to MSR with the interest rate of 6 % whereas PNG disbursed the loan only up to an amount of EUR 2 941 000 (44). Both loans had collaterals in favour of NG in the value of EUR 3 million.

(28) Measure 7 (cession of claims of MIB to NG): On 17 April 2009, MIB ceded its claims from loans taken by CST as borrower of EUR 1 476 830,88 (45) to NG. For these loans, NG paid to MIB the amount of EUR 1 476 830,88. This transaction allowed MIB to be fully repaid by NG who in turn became the creditor of CST (46).

(29) Measure 8 (ISB loan to NG, MSR and CMHN): In order to save financing costs and to safeguard a long-term financing, a full restructuring of funding arrangements took place on 28 July 2010. The liabilities regarding the liquidity pool of the Land (measure 3), a loan of EUR […] granted by Bank für Tirol und Vorarlberg AG to CMHN (47), a loan of EUR […] granted by Kreissparkasse Ahrweiler to MSR (48) and the loans of RIM to MSR worth EUR 85 512 000, granted in the form of the silent participations of RIM in Mediinvest and subsequent loans of Mediinvest to MSR (measure 11) were restructured in one loan of EUR 325 265 000 given by ISB to NG, MSR and CMHN, upon an instruction by the Land (49). The restructuring of the funding arrangements in question constitutes a separate measure, additional to the underlying loans. This results to a new loan in favour of NG, MSR and CMHN. The loan was given in four tranches: tranche 1 of EUR 96 574 200 to NG for infrastructure, tranche 2 of EUR 113 590 800 to NG for other investments (50), tranche 3 of EUR 92 000 000 to MSR for other investments and tranche 4 of EUR 23 100 000 to CMHN for other investments. Tranche 1 relating to the facilities of the ring does not bear interest. Tranches 2 to 4 relate to the measures for promotion of tourism (for the interest rate see Table 7 below). Furthermore, the level of the collateralisation of the ISB loan in the form of mortgages equals EUR 93 658 000 EUR whereas the collateralisation of tranches 2 to 4 has priority over the collateralisation of tranche 1. Table 7 summarises the conditions of the ISB loan and the at that time applicable base lending rate. Table 7 Financing conditions of the loan granted by ISB Tranche No Beneficiary Amount paid out (EUR) Date of contract Interest rate (51) 1 NG 96 574 200 28.7.2010 0 % 2 NG 113 590 800 28.7.2010 until 31.12.2012: EONIA plus 0,64 % = 1,121 % from 1.1.2013: Commission reference rate 3 MSR 92 000 000 28.7.2010 until 31.12.2012: EONIA plus 0,64 % = 1,121 % from 1.1.2013: Commission reference rate 4 CMHN 23 100 000 28.7.2010 until 31.12.2012: EONIA plus 0,64 % = 1,121 % from 1.1.2013: Commission reference rate

(30) Measure 9 (guarantee of the Land to ISB concerning measure 8: ISB loan granted to NG, MSR and CMHN): On 28 July 2010, the Land provided an unconditional and irrevocable guarantee and indemnification statement (100 % coverage of liabilities) towards ISB for the NG, MSR and CMHN's fulfilment of all the liabilities from the ISB loan (measure 8). NG, MSR or CMHN did not pay any fee for the guarantee. Similarly to the ISB loan (measure 8), the guarantee relates both to the facilities of the ring and the measures for promotion of tourism.

(31) Measure 10 (business lease of the Nürburgring complex to NAG): As part of the 2010 restructuring process, from 1 May 2010, NG, EWN, Nürburgring Adventure GmbH (52), Camp4Fun, MSR and CMHN let on the basis of a business lease contract the race circuit, the leisure park and other facilities to NAG (53) for the period of 20 years (54), without organising an open selection procedure. The lease related to the facilities and operation of the ring and the measures for the promotion of tourism. However, the organisation of Formula 1 races was the subject of a separate concession agreement (measure 17) and it was thus excluded from the lease. The minimum annual rent was fixed at EUR 0 from 1 May 2010 to 30 April 2011, EUR 5 million from 1 May 2011 to 30 April 2012, EUR 11,5 million, if deficiencies in construction defects have been removed until 30 April 2012, or otherwise EUR 10 million from 1 May 2012 to 30 April 2013, and 15 million as from 1 May 2013 EUR (55). For the lease from 1 May 2010 to 31 October 2012 NAG actually paid EUR […] (56). The lease contract was terminated retroactively as of 31 October 2012 by the settlement contract (‘Vergleichsvertrag’) concluded between NG, MSR, CMHN, CST, NBG and the insolvency administrator on the one side and NAG, Mediinvest and other companies on the other side on 27 November 2012.

(32) Measure 11 (loans granted by RIM to MSR through Mediinvest as intermediary and in case of one loan also through PNG as intermediary): Between 29 May 2008 and 7 July 2009, RIM granted to Mediinvest eleven loans in the total amount of EUR 85 512 000 in the form of silent participations (‘stille Beteiligungen’) to finance part II (hotels) of the ‘Nürburgring 2009’ project (57). During the same period of time, Mediinvest, which acted as an intermediary between RIM (granting authority) and MSR (beneficiary), used these funds to provide loans to MSR with an increased interest (see below) (58). The silent participations were provided with a fixed remuneration plus a variable remuneration of 2 % which would in principle depend either on the sale of Mediinvest's share of MSR or on the profits made by Mediinvest in 2009. In addition, collaterals were provided. These silent partnerships are summarised in Table 8: Table 8 Silent participations of RIM in Mediinvest Date of contract Amount (EUR) Interest rate (%) 1 29.5.2008 […] […] 2 29.9.2008 […] […] 3 12.11.2008 […] […] 4 22.12.2008 […] […] 5 30.4.2009 […] […] 6 14.5.2009 […] […] 7 26.5.2009 […] […] 8 9.6.2009 […] […] 9 23.6.2009 […] […] 10 30.6.2009 […] […] 11 7.7.2009 […] […] TOTAL […]

(33) Between 27 May 2008 and 7 July 2009, Mediinvest provided nine loans to MSR in the total amount of EUR 75 484 000; they contained the interest rate of 7 % (or 5,1 % backdated as from 1 November 2009) and no collaterals were provided. These loans are summarised in Table 9: Table 9 Loans granted by Mediinvest to MSR Date of contract Amount (EUR) Interest rate 1 27.5.2008 […] […] p.a.; from 1.11.2009: […]% p.a. 2 22.12.2008 […] […] p.a.; from 1.11.2009: […]% p.a. 3 30.4.2009 […] […] p.a.; from 1.11.2009: […]% p.a. 4 15.5.2009 […] […] p.a.; from 1.11.2009: […]% p.a. 5 26.5.2009 […] […] p.a.; from 1.11.2009: […]% p.a. 6 9.6.2009 […] […] p.a.; from 1.11.2009: […]% p.a. 7 23.6.2009 […] […] p.a.; from 1.11.2009: […]% p.a. 8 30.6.2009 […] […] p.a.; from 1.11.2009: […]% p.a. 9 7.7.2009 […] […] p.a.; from 1.11.2009: […]% p.a. TOTAL 75 484 000

(34) In addition, on 12 November 2008, Mediinvest granted one loan of EUR 10 million to PNG with the interest rate of 6 % (until 31 December 2009) whereas the latter company granted a loan of the same amount and same interest rate to MSR on the same date.

(35) Measure 12 (guarantee of the Land to ISB concerning measure 11: silent participations of RIM in Mediinvest): In the context of loans granted by ISB to RIM, used for loans of RIM granted to Mediinvest (measure 11), the Land provided vis-à-vis ISB a guarantee for liabilities up to EUR 140 million (100 % coverage of liabilities) (59). No guarantee fee was paid. The Commission considers that the beneficiary of the measure in question was MSR, as that company was the beneficiary of measure 11.

(36) Measure 13 (revenues from tax on gambling provided by the Land to NG): In February 2009, an amendment to the Gambling Act of the Land was adopted, enabling the transfer of revenues from a tax on gambling to NG. The transferred tax proceeds were intended to be used to promote tourism. The amounts were EUR 1,6 million on 29 December 2009, EUR 3,2 million on 29 October 2010 and EUR 3,2 million on 29 March 2011, i.e. EUR 8 million in total.

(37) Measure 14 (shareholder loans by the Land to NG and debt subordination for the ‘Nürburgring 2009’ project): For the preparation and implementation of the ‘Nürburgring 2009’ project, NG received from the Land interest-free loans with no fixed maturity of EUR 20 million on 21 August 2007, EUR 10 million on 22 December 2009, EUR 4,65 million on 28 December 2010 and EUR 3,2 million on 26 April 2011 (60). In addition, on 9 December 2011, the Land provided to NG a loan of EUR 4,95 million. Moreover, the Land declared debt subordination (‘Rangrücktritt’) in relation to the afore-mentioned loan of EUR 20 million on 29 August 2007 in order to avoid insolvency of NG, ranking its claims against NG in the last position of all creditors' claims against NG.

(38) Measure 15 (transfer of shares of MSR from Mediinvest and Geisler & Trimmel to NG and from Weber to RIM): With the share purchase agreement dated 25 March 2010, the shares of MSR held by Mediinvest (49,5 %) and Geisler & Trimmel (33,8 %) were transferred to NG which already held 10 % of these shares. The shares of MSR held by Weber (6,7 %) were transferred with the same agreement to RIM. The purchase price amounted to EUR 1 per transaction (i.e. EUR 3 in total) (61).

(39) Measure 16 (shareholder loan and grant by the Land to NG for Formula 1 races): Furthermore, an interest free loan with no fixed maturity of the Land to NG of EUR 40 405 000 for the offsetting of liabilities related to Formula 1 under the liquidity pool was provided on 11 January 2011. In addition, in July 2011, the Land provided to NG a grant of EUR 13,5 million for the organisation of Formula 1 races in 2011.

(40) Measure 17 (Formula 1 concession): On 13 December 2010, a concession agreement regarding the organisation of Formula 1 race events was concluded between NG and NAG (62). In this concession agreement, NG asked NAG to organise the Formula 1 races and committed itself to provide compensation (63). Pursuant to Germany, on the basis of this agreement, NAG was supposed to receive financial means which would not be taken into account for the calculation of the rent under the business lease contract concluded between NG and NAG, but no payments were actually made between NG and NAG. On the basis of the settlement contract concluded between NG, MSR, CMHN, CST, NBG and the insolvency administrator on the one side and NAG, Mediinvest and other companies on the other side on 27 November 2012, the concession was terminated.

(b) Measures covered by the decision of 7 August 2012

(41) Measure 18 (rescheduling of interest payments agreed by ISB in favour of NG, MSR and CMHN): On 15 May 2012, ISB made a deferral of interests due on 30 April 2012 until 15 November 2012 in the amount of EUR 2,98 million (including a deferral of compensation in the amount of EUR 48 913,78 for an unspent part of the loan). For the rescheduled amounts, an interest rate of 8,17 % per annum was charged. The exact distribution of the deferral of interests to the individual companies is EUR 1,473 million for NG, EUR 1,205 million for MSR and EUR 303 000 for CMHN.

(42) Measure 19 (debt subordination and guarantee): On 15 May 2012, the Land declared debt subordination regarding loans amounting up to EUR 254 million granted by ISB to NG, MSR & CMHN as part of the loan of EUR 325 265 000 (measure 8). Furthermore, as regards repayment of those loans from 2014 on, in case NG, MSR and CMHN should not be able to pay, on 15 May 2012, the Land declared that these companies will be released from their obligation to pay and that the Land would honour its guarantee previously given to ISB (measure 9).

2.4. GROUNDS FOR INITIATING AND EXTENDING THE FORMAL INVESTIGATION PROCEDURE

(43) In the decision of 21 March 2012 and the decision of 7 August 2012, the Commission reached the preliminary conclusion that all nineteen measures qualified as State aid, and it expressed doubts as regards their compatibility with the TFEU.

2.5. THE TENDER PROCESS AND THE SALE OF ASSETS

(44) The tender process was announced on 14 May 2013 with a press release issued by the insolvency administrator. A call for tenders was published by KPMG in the Financial Times, Handelsblatt and on the Nürburgring website on 15 May 2013. The process involved around 300 investor contacts that were handled by KPMG on behalf of the sellers. In the tender process, the interested parties were invited to submit an expression of interest (around 70 entities expressed their interest) and after being provided with various documentation on the Nürburgring they were requested to submit an indicative offer until 26 September 2013. With letter dated 19 July 2013, all interested investors were informed by the sellers that: ‘All parties that intend to participate in next stage of the process are invited to submit an Indicative Offer by 5:00 pm (CET) on 12 September 2013. Offer handed in after the deadline will also be considered’ (64). The above deadline of 12 September 2013 for the submission of indicative offers was extended to 26 September 2013 by letter of 12 September 2013 by indicating that: ‘The Vendors have decided to extend the deadline for Indicative Offers, in order to enable potential investors to complete their analysis of the provided material. The updated deadline now ends at 5 p.m. CET on 26 September 2013. Offers handed in after the deadline will also be considered’ (65). By letter dated 17 December 2013, the deadline for the submission of confirmatory bids was postponed by the sellers from 11 December 2013 to 17 February 2014 by indicating that: ‘In order to enable potential investors to complete their analysis of the provided information material and to provide a final offer that fully reflects the value potential of the Nürburgring, the timeline which used to end at 5 p.m. CET on 11 December 2013 now ends at 5 p.m. CET on 17 February 2014. For the sake of clarity, offers handed in after that timeline will, in principle, also be considered provided that the terms of the offer qualify for the further process. Any disadvantage caused by the delay will not be compensated for and will have to be fully borne by the investor. Please note that the Vendors may choose the parties which will qualify for the further process shortly after the updated timeline ends’ (66).

(45) The insolvency administrators decided and implemented the following sales structure for the sale of assets of NG, MSR and CMHN.

(46) For the tender process, the assets of NG, MSR and CMHN were split in 11 individual asset clusters (67). According to the published call for expression of interest: ‘The Vendors intend to sell the assets to one or more investors (“Project RING”). Investors will have the opportunity to acquire all assets, defined asset clusters (“Proposed Asset Clusters”) or individual assets. The Proposed Asset Clusters have been defined based on the separability of assets and related costs. It is intended that the transaction will be structured as an asset deal. All third party and financing liabilities will remain with the insolvent legal entities allowing a new start on a clean balance sheet’ (68). Also, according to the letter sent to the interested investors on 19 July 2013: ‘Investors will have the opportunity to acquire the assets of the Vendors in either their entirety, or in defined asset clusters (“Proposed Asset Clusters”), or in individual assets. Proposed Asset Clusters have been defined based on the severability of assets of the Nürburgring and related costs’ (69).

(47) The insolvency administrators did not establish any conditions as regards the future use of the assets. Any limitations of that use stem from existing national construction and environmental law and the public access to the Nürburgring which is guaranteed by the relevant act of the Land.

(48) According to the tender's Selection Criteria, as defined in the letters sent to the interested investors on 19 July 2013 and 17 October 2013, the investors would be selected based on: (a) a maximisation of the total proceeds for all of the assets; and (b) the expected transaction security (70). These criteria were described in detail as follows: ‘Value for the assets in scope of the respective offer; Potential value implications for those assets that are not included in the respective offer, if any; Costs for further separation of the assets in scope of the respective offer, if any; Costs to fulfil key assumptions and conditions of the respective offer; Closing probability’. It was further explained that: ‘the closing probability will be assessed by taking into consideration the (i) outstanding due diligence requirements; (ii) secured financing for the transaction, supported by confirmation of financing partners; (iii) required steps for the regulatory clearance; (iv) required internal approval steps until the transaction could be consummated; and (v) strategic rationale for the acquisition or future plans for the assets of the NG, MSR and CMHN and the likelihood of their realisation’. It is noted that environmental considerations were not part of the criteria for selecting the final offer.

(49) By letters of 17 October 2013 and 17 December 2013, the bidders that submitted qualified offers were informed that: (a) indicative or final, respectively, offers would be considered even if submitted after the expiry of the respective deadlines, provided that the terms of the offers qualify for the further process; (b) disadvantages caused by late submission would be fully borne by the bidder in question; and (c) the sellers could choose the qualified bidders shortly after the expiry of the deadline. According to the insolvency administrators, the bidders were informed by the sellers that they could improve an offer or submit a new offer between the deadline and the conclusion of the sales contract.

(50) 24 candidates (71) sent an indicative bid until the beginning of February 2014. Of these candidates, 18 were allowed to proceed to the due diligence stage (72), and 13 bidders submitted confirmatory offers for all or individual asset clusters or individual assets, including offers for all assets from four bidders: (1) Capricorn Automotive GmbH and Capricorn Holding GmbH (‘Capricorn’); (2) [Bidder 2]; (3) [Bidder 3]; (4) [Bidder 4]. The bids were considered on the basis of: (a) maximisation of the total proceeds for all of the assets; and (b) the expected transaction security (73). The bids which fulfilled these criteria were considered in the final stage of evaluation; those were bids for all asset clusters. Of those bidders, Capricorn and [Bidder 2] submitted confirmations of their access to the funding necessary for the purchase: on 7 March 2014, [Bidder 2] submitted a binding letter dated 24 February 2014, informing KPMG of its financial capabilities; and on 11 March 2014, Capricorn submitted to the sellers a binding letter by […] dated 10 March 2014, addressed to Capricorn, informing the latter that […] was willing to underwrite a loan of EUR 45 million to Capricorn for the purpose of the acquisition of the assets in question. On the basis of their offers, contracts were negotiated in parallel and notarised, with [Bidder 2] on 7 March 2014 and with Capricorn on 10 March 2014.

(51) On 11 March 2014, the Creditors' Committee of the insolvent companies approved the sale to Capricorn (specifically to capricorn NÜRBURGRING Besitzgesellschaft GmbH), as the one with the highest offer including a proof of financing. In particular, the offer of Capricorn was at a price of EUR 77 million, whereas the offer of [Bidder 2] was at a price of EUR [47-52] million. The sales contract with Capricorn was signed by NG, MSR and CMHN on 11 March 2014 and by the insolvency administrator on 13 March 2014 (74).

(52) Following the tender process described above, the assets of NG, MSR and CMHN (all tangible and intangible assets including all land, buildings, trademarks and internet domain rights), but not any liabilities and financial assets, were bought by Capricorn. The shareholders of Capricorn are capricorn HOLDING GmbH (75) with 67 % of the shares and GetSpeed GmbH & Co KG (76) with 33 % of the shares.

(53) The transfer of the employment contracts associated with the tendered asset clusters follows from German law (77) and German labour courts jurisprudence (78), which foresee that the employees are automatically transferred to the buyer of the assets, but that in an insolvency context the buyer can request from the insolvency administrator to terminate employment contracts. In the case at hand, the sales contract foresees that NBG (the current operator of the Nürburgring complex) would in 2014 terminate employment contracts upon request of Capricorn. Indeed, the latter concluded that, in order to achieve an economically viable operation of the acquired assets, it would need 253 of the total 297 employees (as of beginning of 2014), and thus requested NBG to terminate the employment contracts of 44 employees. As a result, 85 % of the total staff of the insolvent companies will be transferred to Capricorn on 1 January 2015 (date when Capricorn will start operating the acquired assets).

(54) The parties to the sales contract are obliged to implement it only upon the existence of a Commission decision declaring that neither the buyer nor its operational company are beneficiaries of the aid under assessment subject to recovery, and: (a) either the delays to bring a legal challenge against the Commission decision have expired without an appeal; or (b) in case of an appeal, a not further challengeable court judgment has been rendered confirming the Commission decision. This condition aimed at covering the discrepancy between the assets' price of EUR 77 million and the financial risk they carried, stemming from the possible liability from a State aid recovery of EUR 456 million based on the Commission decisions of 21 May 2012 and 7 August 2012 to open and extent, respectively, the formal investigation procedure.

(55) The business in the season 2014 will be run by NBG. Afterwards, a liquidation of this company is foreseen. The 2014 cash flow of NBG (EUR 6 million) is cashed in by the seller. It represents, in form of a flat-fee, a part of the sales price in order to facilitate the handling of the contract. As regards the beneficiaries NG, MSR and CMHN, in the context of their insolvency proceeding, they have definitely ceased all activities and do not employ any personnel. At the same time, the insolvency administrators are entrusted with legal proceedings under German bankruptcy law, aiming at the arrangement of all the claims and obligations of the companies in insolvency proceedings. Once those claims and obligations are settled, and the insolvency court approves the final liquidation, the companies can be erased from the company registries.

(56) In order to run the business in the season of 2015, the buyer (Capricorn) will establish the operating company capricorn NÜRBURGRING GmbH (‘OpCo’) that will conclude contracts for the season 2015. With a view to ensuring that the aid beneficiaries will definitively disappear from the market, the Commission was informed of the following measures. If there is no non-challengeable Commission decision at the beginning of 2015, the sold assets will be transferred before 1 January 2015 to a new company (‘NewCo’) in which 95,1 % of the shares will be owned by the buyer and 4,9 % by an independent trustee. The trustee will be acting in the interests of the creditors and not of the insolvent beneficiaries of State aid, but will not be subject to instructions by the creditors. Furthermore, a lease contract will be concluded between NewCo and OpCo, terminating on the date of entry into force of the sales contract. The business of the OpCo will be run under its name, on the basis of its own business plan and with the workforce of its own choice (see recital 53 above). There will be a lease fee of totally EUR [4,6-5,1] per year to be paid to NewCo, which will serve the liquidation mass of the Nürburgring companies (all payments in favour of the insolvency estate are transferred to the trust accounts of the insolvency administrators, solely in order to be distributed to the creditors). When the decision of the Commission becomes effective, the trustee will transfer all his shares in NewCo to the buyer. On the other hand, if the buyer does not fulfil its contractual payment obligations, the trustee will be able to sell the assets. In addition, should an annulment of the Commission decision take place, the assets will return to the insolvency administrators in order to be sold immediately, since the liquidation obligation of German insolvency law continues to exist even in such case. There is no option of continuing the business of the Nürburgring companies by NewCo. The Commission notes that this arrangement does not change the basic conditions of the sale, including the sales price and payment terms, which remain the same (79).

3. COMMENTS FROM GERMANY

3.1. FIRM IN DIFFICULTY

(57) In their comments to the formal investigation procedure, Germany argued that NG was not a firm in difficulty as of 1 July 2008 (80) or at the moment of granting the ISB loan of EUR 325 265 000 on 28 July 2010 (81). As regards the situation of NG, MSR and CMHN in the period from May 2012 to July 2012 and the extension of the formal investigation procedure, Germany claims that the Commission had not taken into account the insolvency of NG, MSR and CMHN as a non-reversible consequence of its decision not to approve the rescue aid in the preliminary proceedings (82) and it has thus breached the principle of proportionality (83). Germany also argues that NG carried out the construction of the infrastructure and particularly the organisation of Formula 1 and Superbike race events on behalf of the public sector (84), and that they therefore cannot be taken into account for analysis of its economic situation, the classification of an undertaking in difficulty and the application of the ‘one-time’ principle (85).

3.2. STATE RESOURCES AND IMPUTABILITY

(58) For the measures carried out by NG, Germany acknowledges that the resources are imputable to the state (86).

3.3. ECONOMIC ACTIVITY

(59) Pursuant to Germany, the construction of the tribune, the multifunctional halls, the access structures and the attractions offering education and entertainment (Part I (87) of the Nürburgring 2009 project) is no economic activity as the Leipzig/Halle judgment (88) cannot be applied to the construction of the general (regional and sport) infrastructure (89), the construction concerns facilities for which the criteria of the 2007 White Book on sport of the Commission (multifunctional use, non-discriminatory access, etc.) are met, no private investor would carry out such project and racetracks are regularly not privately constructed for insufficient profitability (90).

(60) As regards the Formula 1 events, in the view of Germany, they are in principle structurally deficit making, these events cannot be considered as normal business of NG as they led even with the public support to a negative result for NG, this company would not organise these events without the expectation of public financing and the public authorities decided to finance the Formula 1 events through NG at arm's length for regional-policy grounds (91). Therefore, Germany claims that the organisation of these events cannot be considered as an economic activity of NG. If it was aid, Germany claims that the SGEI criteria are met.

3.4. SELECTIVITY

(61) Germany argues that even if the financing of the measures was an economic activity, it is not selective because the criteria of the 2007 White Book on sport are met (no single user; non-discriminatory access; multifunctional use and lease under reasonable market-based prices; the infrastructure is not provided by the market because it would not be economical; responsibility of public authorities).

3.5. ADVANTAGE

(a) Measures covered by the decision of 21 March 2012

(62) Germany admits that it had not found a long-term private investor who would invest in the Nürburgring 2009 project.

(63) For measure 1 (payments in capital reserve and capital increases in August 2004, December 2004 and September 2007), Germany argues that the question of an advantage does not matter, because the target of the measure was not an economic activity.

(64) As regards measure 2, Germany argues that the level of the interest of NG's loans granted to its subsidiaries (6 %) does not constitute an advantage to the subsidiaries as it is comparable to the interest of loans on the market.

(65) Regarding measure 3, pursuant to Germany, the measures financed by the liquidity pool in the amount of EUR 170 million (92) were carried out on market-based terms, since: (a) the pool is used by the Land similarly to a market-based holding (93); (b) NG paid the interests ordinarily; and (c) the funds were fully paid back in connection with measure 8. Germany also indicated that the loans granted by the liquidity pool of the Land to ISB served exclusively to the refinancing of ISB for its own loans to NG (see also recital 70) and that the market conditions of the Land from the transactions of the liquidity pool were not passed on to NG as debtor.

(66) For measure 4 (loan granted by NG to MSR), Germany states that the interest rate of 7 % seems to be market conform.

(67) Concerning measure 5 (support provided by NG to CST), Germany puts forward that it is market conform: after the initial financing of the project by NG and MIB under parity conditions, the MIB was later unable to provide the necessary shareholder loans in the same amount as NG. Since a withdrawal of NG from the project would compromise the timely provision of the ticket system, as well as make worthless in all probability the previous investment of NG, it was preferable for the NG to stick to the planned project under changed conditions, especially as the business plan allowed for expectations for a reasonable return and NG received collaterals from NG.

(68) In respect of measure 6 (consideration paid to IPC, and the loan to MSR through PNG as intermediary), Germany argues that the recipients received the respective payments as remuneration to services and as a loan to market equivalent conditions.

(69) With regard to measure 7 (cession of MIB's claims against CST to NG), Germany does not deal with questions concerning a potential advantage.

(70) As regards measure 8 (ISB loan to NG, MSR and CMHN), Germany indicates that ISB has not acted independently (at arm's length) as a (separate) undertaking, but as a support bank receiving explicit instruction from the administration of the Land and being part thereof (94). Pursuant to Germany, the principles of the Agreement II are applicable to the refinancing of the ISB loan (95) through the participation of ISB in the liquidity pool and this participation constitutes therefore no aid in favour of ISB (96).

(71) Regarding measure 9 (guarantee of the Land to ISB concerning measure 8), Germany states that the guarantee in question deals with the share of risk in an internal relationship between ISB and the Land and it provides no advantage to the beneficiaries of the loan (NG, MSR and CMHN), because it did not lead to improved terms of their loan (97).

(72) As regards measure 10 (business lease contract concluded on 25 March 2010), Germany submitted an expert opinion of 29 September 2011, commissioned by the Land on the rent for the business lease of the Nürburgring, which established a range of minimum and maximum market conform annual rents. Germany claims that according to that expert opinion, the expected rent is 20 % above the maximum market level and it would cover the lessor's construction costs of EUR 330 million and a reasonable profit (98).

(73) As regards loans under measure 11 (loans granted by RIM to MSR with Mediinvest and PNG as intermediaries), by which Part II of the ‘Nürburgring 2009’ project was financed, Germany argues that they are conform with the market economy investor principle and that they do not involve an advantage, since the interest rates applied are above the applicable reference rates (apart from two loans of 12 November 2008 and 22 December 2008).

(74) For measure 12 (guarantee of the Land to the loans of RIM to MSR with Mediinvest as intermediary under measure 11), Germany states that the guarantee of the Land only leads to an advantage to the recipients of the loans, but not to an advantage to ISB or RIM, because that guarantee was a requirement for the granting of the loans.

(75) As regards measures 13 and 14 (grants from gaming tax for tourism promotion (99) and loans by the Land), Germany does not claim their compliance with the market economy investor principle. Concerning the gaming tax, Germany describes the measure as a compensation for infrastructural costs in connection with the promotion of tourism. Concerning the debt subordination, Germany argues that it has merely a declaratory effect as every shareholder loan is subordinated in the insolvency proceedings anyway, that that subordination led therefore only to a potential effect on the public budget and that it does not therefore constitute an advantage (100).

(76) As regards measure 15 (takeover of MSR shares by NG and RIM), Germany claims that it does not constitute an economic advantage for Mediinvest, Geisler & Trimmel and Weber, because: (a) it was carried out at the symbolic price of EUR 1 per share; (b) it did not involve any other advantages such as the cancellation of shareholder loans or guarantees of the shareholder; (c) NG and RIM took over the shares in MSR as to compile the ownership of Part II with that of Part I of the ‘Nürburgring 2009’ project and to enable a united business concept; and d) the question whether MSR was in difficulty at the moment of the transfer has no impact on this assessment, as MSR is a company with limited liability, thus the liability of the shareholders is in any event limited to the capital of the company.

(77) As far as measure 16 (financing of the losses of NG from the Formula 1 races by the Land) is concerned, Germany states that it is not an economic activity and that the financing of Formula 1 events is generally not profitable.

(78) For measure 17 (Formula 1 concession contract), Germany claims that it is linked to the conditions of the business lease contract. Germany argues that in view of the rent being considerably ([…] %) over the market level, both contracts have to be considered balanced in their totality (including the benefits of the NAG from the concession contract) (101).

(b) Measures covered by the decision of 7 August 2012 (102)

(79) Regarding measure 18 (debt rescheduling), Germany states that it was necessary to avoid the imminent insolvency and that it would have been implemented also by a private shareholder.

(80) Concerning measure 19 (debt subordination and guarantee), Germany argues that it does not constitute even a potential burden to the public budget, that it would be implemented also by a private shareholder, and that the debt subordination had no consequences for the shareholders because there were no further substantial creditors.

3.6. DISTORTION OF COMPETITION AND EFFECT ON TRADE

(81) Germany claims that the measures in favour of hotels and restaurants have no potential effect on trade between Member States (103).

3.7. COMPATIBILITY

(a) Facilities of the race ring

(82) Germany claims that the Nürburgring is crucial for the economy and employment in the region, that it is an important facility dedicated predominantly to amateur sport, that it is part of the German motorsport history and German culture and thus also part of the cultural heritage of the Union, that it has an impact on traffic safety in the whole world, as cars tested on that track are exported worldwide, that its driving centre offers a safe driving training, and that the investigated measures do not relate to the racetrack as such, but rather to the sport and non-sport infrastructure other than the racetrack and to the organisation of Formula 1 races.

(b) Compatibility of aid under 107(3)(c) TFEU

Objective of common interest

(83) Germany argues that the construction of sport facilities can be regarded as a common interest in view of Article 165 TFEU (104) and that measures enabling access to sport could be supported (105). The Nürburgring features not only few professional events but also amateur events and motorsport training of youth. Nürburgring is used also for other sport events such as cycling (Rad&Run), running (Fisherman's Friend StrongmanRun) and triathlon (Green Hell Triathlon).

Necessity and proportionality of the measures

(84) Germany states that the measures are necessary for the following reasons: Out of […] event days, Nürburgring is used for professional sport only on […] days, for amateur sport on […] days and for both amateur and professional sport on […] days. The amateur sportsmen represent more than […] ([…] professionals versus […] amateurs). Non-amateur events are Formula 1, German Touring Car Championship, Superbike World Championship, the music event Rock am Ring and the test driving of the car manufacturers. Amateurs can go for a ride with their own cars. At weekends, amateur competitions of large German motorsport associations (such as ADAC) are organised. During the week individual clubs use the tracks for training or amateur competitions. In motorsport, there is no separate infrastructure for professional and amateur sport. Moreover, the measures under investigation serve to the elimination of a market failure. A return on investment cannot be expected. In contrast to multifunctional arenas, only one or two series of a competition take place every year. No private investor would construct and finance such infrastructure. The participation of private enterprises in the financing of Part I of the ‘Nürburgring 2009’ project failed. Public engagement had thus also an incentive effect. Without the explicit political will of the Land government, NG would not implement the modernisation and expansion of the sport infrastructure in the same extent. In addition, Germany argues that the financing of the measures is proportional. The aims could not have been reached with a lower funding by the public sector. The installations were old and required modernisation. There was no duplication of infrastructures. In contrast to the Commission cases on multifunctional arenas (106), the measures under investigation do not concern new infrastructure or substantial extension of capacity.

Effects on trade and competition limited to necessary extent

(85) According to Germany, effects on trade and competition are small and do not contradict the common interest. As stated by the Koblenz court (107), the Nürburgring with the Nordschleife is unique. The location of international and national events has a long history, and the support to the sport infrastructure at the Nürburgring does not therefore lead to a transfer of events to the Nürburgring. There are only few international events at the Nürburgring.

(c) Compatibility of aid under 107(3)(d) TFEU

(86) Germany claims that the Nürburgring — as the longest permanent racetrack and the oldest pit lane worldwide — is part of the cultural heritage of the Union (108). Parts of the ringowerk (mixture of museum and science centre) have a museum character. The measure for the support of the culture of the motorsport was necessary as it creates a common cultural identity in Germany and the Union, and the private financing of Part I of the ‘Nürburgring 2009’ project failed. The measure was also proportional because no overcompensation of that measure took place. The trade and competition conditions in the field of cultural facilities are not affected by the support to an extent contrary to the common interest. The cultural facilities at the Nürburgring are in competition with other regional or national cultural facilities, so that the market share of the former facilities is limited.

(d) Compatibility of aid under 107(3)(b) TFEU

(87) Germany also claims that the drawing of loans of NG from the liquidity pool and the participation of ISB in the liquidity pool (measure 3) is compatible under 107(3)(b) TFEU as taking a loan from the real economy was almost impossible at the time because of the breakdown of the interbank market.

(e) Compatibility of aid under 106(2) TFEU

(88) Germany claims that part of the investment measures for the promotion of tourism met the SGEI requirements that were in force at the time (109) and that no manifest error of appreciation is evident. More concretely, Germany indicates that parts of ringowerk (particularly motorsport exhibition, Green Hell multi-media theatre, ringomeister and testocentre) have a museum character and serve to the public interest of (cultural) education, Warsteiner Event Centre serves as a multifunctional congress, trade fair and conference facility and the parking house is not fully used at days without big events. Germany argues that an enterprise acting under normal market conditions would not make the investments in the above three facilities without public financing and that the failed private financing of Part I of the ‘Nürburgring 2009’ project shows that there is no market for the installation of such measures.

(89) Germany claims that the organisation of Formula 1 events is considered a SGEI as they are publically funded also in other countries and they have an enormous prestige and macroeconomic and identity effects to the respective Member State as well as to the whole Union.

(f) Temporary Framework

(90) Germany claims that tranches 2 to 4 of the ISB loan (measure 8) are compatible with the internal market under the Commission communication — Temporary Community framework for State aid measures to support access to finance in the current financial and economic crisis (110), and that even if the Commission concluded that NG was an undertaking in difficulty as of 1 July 2008 and the Temporary Framework could not be applied to tranches 2 to 4 of the ISB loan, the aid in favour of NG, MSR and CMHN would equal to the difference between the interest rate to be paid on the market and the interest rate actually paid, but not to the whole amount of the loan (111).

3.8. SALE OF ASSETS

(91) In its submissions, Germany maintains that the sales structure does not involve State aid to the buyer of the assets. In addition, Germany argues that the sales process interrupted the economic continuity of the NG, MSR and CMHN. Thus, in its view, if the formal investigation procedure concluded with a negative Commission decision requesting the recovery of incompatible aid, a recovery obligation imposed on NG, MSR and CMHN would not concern the buyer of the assets in question. Finally, with regards to the condition which foresees that the sale of the Nürburgring assets is final only upon the existence of a non-challengeable Commission decision declaring that the aid would not be recovered from the buyer of the assets, Germany argues that this condition does not constitute an obstacle to the liquidation of the aid beneficiaries and that it is not a continuation of their business, or an advantage to the buyer.

(92) As regards the interruption of economic continuity, Germany pointed to the following elements: (a) The sale was carried out through an open, transparent, non-discriminatory and non-conditional tender procedure to the bidder submitting the highest bid including a proof of its financing; (b) The economic logic of the sale is determined by the insolvency proceedings, which serve to satisfy jointly the creditors by the sale of the assets of the Nürburgring and the distribution of the proceeds among them; (c) The opening of the insolvency proceedings and the takeover of the business by NBG from NAG as well as the sale of the assets to Capricorn with the subsequent placing of the assets in the control of a separate trustee constituted economic breaks, as the business models of NAG, NBG and Capricorn vary in the use of the assets substantially; (d) Neither Capricorn nor the new owner of the assets has any economic or corporate link to NG, MSR or CMHN as of January 2015; (e) The buyer has acquired only the assets but not the shares or the obligations of the sellers. The shares of NBG are not transferred to the buyer, either; (f) The significant contracts for the operational business will be terminated predominantly after the 2014 season. The new contracts for the period from 1 January 2015 will be negotiated and concluded by the operating company founded by the buyer. Any transfer of employment contracts associated with the tendered assets would be governed by the applicable provision of German law, i.e. the purchaser of the insolvent assets would be free to decide on engaging personnel; (g) As regards timing, the assets were sold before any Commission decision; (h) The date of the transfer is determined by the requirements set by insolvency law that are to be considered in the context of the best possible sale of the assets. Given the nature of the motorsport business and the tendered assets, Germany considered that any successful buyer(s) would be engaged in activities similar to NG, MSR and CMHN's. However, any new owner(s) would have the possibility to manage their activities under different operating conditions than NG, MSR and CMHN's and would apply their own business model. For the racetrack, Capricorn foresees a different utilisation concept based on a new business plan. Besides, the buyer will itself be more active as an event organiser at the Nürburgring in the future. Furthermore, the Nürburgring will convert from a tourism attraction to a technology site according to the plans of the buyer.

(93) With regards to the condition which foresees that the sale of the Nürburgring assets is final only upon the existence of a non-challengeable Commission decision declaring that the aid would not be recovered from the buyer of the assets, Germany argues the following: (a) no potential investor or financial partner would accept to acquire the assets without such a condition precedent; (b) according to the German insolvency law (112), the insolvency administrators' obligation is to ensure that the debtor's assets are liquidated at the best possible rate or alternatively to reach an arrangement in an insolvency plan which however would result in further State aid to the Nürburgring companies; (c) the lessee will operate the leased assets under its own name, on the basis of its own business plan and with the workforce of its own choice; and (d) [Bidder 2] had a similar condition in its offer, which foresaw that its offered prices would only be payable upon the existence of a non-challengeable Commission decision declaring that the aid would not be recovered from the buyer of the assets. [Bidder 3] had a condition stipulating that it could withdraw from the sale if there was no positive Commission decision in place until 31 December 2014. (e) The structure by which, in case there is no non-challengeable Commission decision at the beginning of 2015 the sold assets will be transferred before 1 January 2015 to a new company, in which 95,1 % of the shares will be owned by the buyer and 4,9 % by an independent trustee (see recital 56 above), will not lead to a continuation of the beneficiaries' business but will ensure their definitive exit from the market.

(94) In conclusion, Germany argues that through this process there is no economic continuity between NG, MSR and CMHN and the assets sold under the tender process. Thus, any potential incompatible State aid to NG, MSR and CMHN would have to be recovered from these companies, following a relevant Commission decision, and would not concern the buyer of the assets under sale. Germany also argues that the condition precedent of the sales contract between the sellers and the buyer does not put an obstacle to the liquidation of the Nürburgring companies and the recovery of the past aid from them. The aid beneficiaries will disappear from the market definitively. Should ever the sale with Capricorn be annulled, the assets will still be sold and the sellers liquidated.

(95) Germany informed the Commission about the sales structure, in order to obtain legal certainty that the sale of the assets would not involve State aid and that any successful buyer(s) would not be held liable for recovery of incompatible State aid.

(96) Germany also undertook the commitment to provide to the Commission reports regarding the implementation of the sales procedure. The reports were submitted on a regular basis. The reports confirmed that the sales process was executed following the principles discussed with the Commission. They also provided information to the Commission about the bidders, their tenders, the final sales price and other relevant issues.

4. COMPLAINTS ON THE SALE OF ASSETS

4.1. COMPLAINT FROM JA ZUM NÜRBURGRING e.V. (COMPLAINANT 1)

(a) Complaint

(97) Complainant 1 claims that the design of the tender process for the sale of the assets of NG, MSR and CMHN (i.e. the sale of racetrack, accommodation facilities and leisure park altogether) was not suitable for remedying competition distortions in the relevant markets, because it aimed at an unchanged operation of the complex and a transfer of the majority of employees of NG, MSR and CMHN to the buyer of the assets. Complainant 1 further complains that in the insolvency proceedings in the own administration (‘Eigenverwaltung’) the insolvent companies carry out the sale themselves, under the mere supervision of an insolvency administrator (‘Sachwalter’) (113), that the bidders are not required to submit separate offers for each asset cluster and that offers for the totality of assets are acceptable.

(98) Complainant 1 also argues that aid would be transferred to the buyer of the assets because all the assets, around 300 employees and the operational business of NBG would be transferred to one bidder and there would thus be economic continuity between the old and new owner/operator. Complainant 1 also alleges that in consequence of the criterion of the maximisation of value of all assets, offers for the totality of assets were preferred by the sellers, whereas offers for individual assets were discriminated.

(99) Furthermore, complainant 1 alleges that there is a lack of transparency as regards the award criteria and the financial data about the profits of NG, and that there is discrimination among the bidders, in particular because the access to the virtual data room was limited to five bidders. Complainant 1 also states that the sellers communicated the extension of the deadline for the submission of binding offers until the mid of February 2014 only to the bidders for all the assets who qualified for the access to the virtual data room; the bidders that tendered only for individual asset clusters such as complainant 2 were not notified of the extension of the deadline. Furthermore, complainant 1 states that the Land and Capricorn were represented by the same law office.

(100) Complainant 1 requests the suspension of the tender process and its re-launch with clear award criteria, the qualification of the racetrack as an SGEI and its separation from the sale of the accommodation facilities and the leisure park.

(101) In addition, complainant 1 alleges that NBG has received new non-notified aid incompatible with the internal market because it was provided capital for the operation of the business at the Nürburgring from the insolvent NG of EUR 2 239 243 in the form of a transfer in the capital reserve (‘Kapitalrücklage’), that the operation is based on a new lease contract between NG, MSR, CMHN and NBG that was not tendered out, that NBG does not pay any rent and that NBG does not aim at increasing turnover and saving costs, because it keeps all the personnel and has born the costs for the organisation of Formula 1. Complainant 1 also claims that a takeover by NBG of employment contracts of NAG employees, based on a contract concluded between NBG and the trade union ver.di on 26 July 2013, sets out that, through the takeover, no economic, social or legal disadvantages can be created to the employees, and it shows that a business model which was built up with unlawful aid has been maintained.

(b) Comments from the insolvency administrators sent by Germany

(102) Pursuant to the insolvency administrators, the complaint should be refused because it does not make evident that the sale process deviated from a usual acquisition process.

(103) In an open, unconditional and transparent bidding process, offers for all assets cannot be excluded from the outset. If such offer is higher than the sum of the combined offers for individual assets, an owner behaving in a market-conform manner would conclude the contract with the offer for all assets. Under these circumstances, only the latter offer is a market price (114). The exclusion of such offers from purchases in insolvency proceedings would equal to a breach of the business freedom and the ownership right of the insolvency creditors guaranteed by the Charter of fundamental rights of the European Union.

(104) A preferential treatment of offers for all assets did not take place. The non-qualification of complainant 2 for the access to the data room was caused only by the insufficient amount of its price offer.

(105) The bidding process had been done in stages. The bidders qualify for a next stage only if there is a sufficient closing probability. The advantage of this approach is that sensible business data are not accessible to more bidders than necessary and that the cost of the due diligence can be reduced for both the seller and the bidders that offer an insufficient price. The bidders were provided sufficient information in each stage of the process.

(106) The award criteria were defined unambiguously. The award criterion is the total proceeds weighted in view of the closing probability, which is further defined by sub-criteria.

(107) The data room was not limited to five tenders for technical reasons. The number of accesses was the result of the evaluation of offers.

(108) According to the insolvency administrators, NBG was established by them as a vehicle for a temporary operation of the assets during the insolvency until the sale of assets. Previously, the operational business was carried out by NAG. Since the lease of the Nürburgring to NAG, the companies NG, MSR and CMHN were mere owner companies without operational business. Pursuant to the insolvency administrators, NG, MSR and CMHN could not be considered for the take-over of the operational business. First, a split of the operational business between the three companies would require separate concepts. Second, that split would not correspond to asset clusters that would lead to an economically meaningful use of the real property. Third, the conclusion of contracts with insolvent companies does not comply with internal compliance rules of many companies, and the operational business had thus to be continued via a non-insolvent subsidiary as an acceptable contractual partner to the customers of the Nürburgring. The employees could also not be required to change from NAG to insolvent companies. NBG was not established and equipped as a long-term solution. In contrast to the assets managed by NBG, the latter company was not for sale. Moreover, the insolvency administrators state that the provision of capital to NBG was carried out by the insolvency administrators in view of the sale (avoidance of lower revenues in case of non-operation) only according to economic considerations, that the assets of NG were increased by NBG, not decreased (115), that the said provision of capital does not provide an advantage to NBG, and that the establishment and equipment of NBG is not imputable to the State, but to the insolvency administrators.

(109) Pursuant to the insolvency administrators, also the contract between NBG and the trade union ver.di was concluded in order to allow the continuation of the operational business of NBG until the sale, and not to keep the Nürburgring as an economic entity thereafter. That contract was concluded by NBG, not the sellers. The employment contracts were transferred from NAG to NBG according to § 613a of the German Civil Code, and not on the basis of the said contract. In view of Article 7 and 9 TFEU and Council Directive 2001/23/EC (116), competition related considerations cannot lead to the circumvention or decrease of the social standard. It was important for NBG as a temporary solution that the employees necessary for the operational business that were employed by NAG (predominantly) and NG (20 employees) are transferred to NBG. NBG had to avoid that the remaining qualified employees have to be replaced during the transitional period. Between the beginning of 2011 and the end of 2012 the personnel was reduced by 114 full-time equivalents (from 402 to 288 full-time equivalents). At the beginning of the 2013 season, 290 were employed. The bidders were informed that they have the possibility to adjust the scope of the transaction to their business concept. The transfer of employees is no indicator for the maintenance of a business model.

(110) Germany considers as not required by the State aid rules and as not acceptable in view of the European social model that a buyer of assets of a company in insolvency should be required to avoid the transfer of employment contracts and to conclude new employment contracts under the threat of recovery of aid granted previously to that company.

4.2. COMPLAINT FROM ADAC e.V. (COMPLAINANT 2)

(a) Complaint

(111) According to complainant 2, he was notified by the sellers that his offer could not be taken into account in the next stage of the sale, as the price offered by him was substantially lower than the price included in other offers, and related only to part of the assets, while maximisation of value was sought through all assets.

(112) Complainant 2 claims that the sale process aims at economic continuity of the activities and the market position of the Nürburgring in its current form, and it is therefore not suitable for the avoidance of a transfer of an advantage from the aid already granted to the buyer of the assets. He points out that only a sale to several bidders can breach the economic continuity, that offers for the totality of assets were preferred by the sellers compared to offers for individual assets, the latter being allowed but de facto without any chance, and that there are no criteria for the evaluation of offers for part of the assets in relation to offers for the totality of assets and that only the latter offers qualified for the second stage of the process.

(113) Complainant 2 also states that the sale process was carried out by the insolvency administrator in breach of the State aid rules, including a lack of transparency and non-discrimination, and it is therefore not suited to achieve a market price. Complainant 2 claims that data on the financial situation of NG relevant for the price offers were missing in the tender documentation, which led to excessive indicative offers, which would probably be decreased after the process stage allowing access to the data room. Complainant 2 states that the profits were substantially decreased compared to the expected profits for 2013 previously communicated to the bidders, without giving them a possibility for a new analysis of the financial data. Complainant 2 also alleges that the information about the financial situation of NBG and the necessary mid-term and long-term investments was not sufficiently disclosed and that the tender documentation implies long-term contractual relationships, although the contracts with complainant 2 were extended only by one year (2014). In addition, the criterion of a secure financing was not sufficiently taken into account, otherwise the bidder La Tene Capital Limited could not access the data room with an unrealistically high offer and without a confirmation of the financing.

(b) Comments from the insolvency administrators sent by Germany

(114) Comments from the insolvency administrators contained in recitals 101 to 105 apply also to the complaint from complainant 2.

4.3. COMPLAINT FROM [BIDDER 3] (COMPLAINANT 3)

(a) Complaint

(115) Complainant 3 claims that the sales contract was not awarded to the bidder with the highest offer, but to a preferred local bidder. Pursuant to complainant 3, non-economic considerations such as regional objectives or reasons of industrial policy that would not be accepted by an investor acting in accordance with market economy principles may not be taken into consideration for a lower price but point to a case of State aid (117). Complainant 3 claims that it offered a purchase price in the amount of EUR 150 million (118), and that Capricorn was thus awarded with the contract although complainant 3's offer was substantially higher. Complainant 3 further supports that an exceptional decision for the lower bid may only be made if it is obvious that the sale to the highest bidder is not possible (transaction security), i.e. if the purchaser is not able to pay the purchase price (119). According to complainant 3, this was not the case, because: (1) complainant 3 submitted a binding financing commitment by a private equity fund in the amount of EUR 30 million; and (2) it was not possible to receive the binding commitment for the further tranches of the purchase price due to a delay and lack of documentation by the sellers. Complainant 3 claims to have informed the sellers that the pending financing commitments could be submitted by 31 March 2014. Complainant 3 also supports that as of the date of the complaint (10 April 2014), it could provide a financing commitment over EUR 110 million, whereas complainant 3 submitted to the Commission a Letter of Intent addressed by Jupiter Financing Group, Inc. (‘Jupiter Financial Group’) to complainant 3, dated 26 March 2014, informing complainant 3 of a binding proposal by Jupiter Financial Group for the financing of the acquisition of the Nürburgring assets (for the financial components of this proposal, see footnote 105). The financing proposal was subject, among other conditions, to the completion of due diligence satisfactory to Jupiter Financial Group.

(116) Complainant 3 also claims that, of the total of EUR 77 million that Capricorn offered as a purchase price for Nürburgring, EUR 6 million would be paid from the 2014 season and a further EUR 11 million only during the years 2015 to 2018, and that this results in an actual cash purchase price in the amount of EUR 60 million and thus in a difference of EUR 50 million compared to the cash purchase price of EUR 110 million offered by complainant 3. According to complainant 3, if one takes further future cash payments into account, the difference between the offers of Capricorn and complainant 3 is EUR 73 million. Finally, complainant 3 alleges that there is aid in favour of Capricorn which amounts to at least EUR 73 million, i.e. the difference between the purchase price offered by complainant 3 as the bidder with the highest bid and the price offered by the successful bidder. In this regard, according to complainant 3, when taking into account the support in favour of the local communities, the aid amount is raised by EUR 200 million, to an overall EUR 273 million.

(117) Complainant 3 also claims that Capricorn's offer was not unconditional, since it was subject to a non-contestable decision by the Commission making clear that there is no extension of the recovery order. According to complainant 3, this constitutes a deviation from the announced principles of the sales procedure, which caused a violation of the tender procedure since other parties like complainant 3 were not informed about the adjustments.

(118) Furthermore, complainant 3 argues that the sale of assets has not been made in the course of an open, transparent and unconditional selection process. Specifically, complainant 3 alleges that: (a) The fact books provided by the sellers were materially incorrect and misleading; particularly the suggested ‘clean balance sheet’ transaction structure was unrealisable. Immediately after the due diligence process began, complainant 3 found out that the transaction structure proposed by the sellers did not accommodate the factual circumstances resulting from the operation of the Nürburgring and could thus not be implemented (120). (b) Throughout the process, the sellers delayed the finalisation of the asset purchase agreement. (c) The sellers failed to communicate an unambiguous time limit for ending the bidding process and indicated that the process ends at the end March 2014. Complainant 3's exchange of communication with the sellers and a press release by the sellers implied that the submission of complainant 3's bid until the end of March is possible. Moreover, Capricorn was allegedly given a preferential treatment since it was allowed to provide its binding financing commitment after 17 February 2014 (121). (d) Material contracts such as the third party operational contracts of NBG were not provided at all or only with substantial delay. Furthermore, the bidders were allegedly provided with decisive information on the key financial figures of NBG in the data room only in German only one working day before the expiry of the deadline for the submission of the final offer or even on that day. In particular, material information such as the audited annual accounts of NBG as at 31 December 2012 was allegedly only provided on the evening of the last working day before the date set for the submission of the final offer. (e) The sellers discriminated the other bidders by allegedly granting Capricorn preferential access to major third party suppliers. In particular, complainant 3 claims that there must have been negotiations between Capricorn, the sellers as well as the brewery Bitburger already weeks before the winning bidder was announced on 11 March 2014 (122). (f) The notarisation of the asset purchase agreement between the sellers and Capricorn must have taken place before 11 March 2014. The award of the contract was already communicated to Capricorn before a decision by the committee of creditors was made, and a press release by Capricorn dates from 9 March 2014 and was thus made 2 days before the decision of the committee of creditors on 11 March 2014. (g) Without informing the other bidders the sellers deviated from the process letter of 17 October 2013 by waiving the requirement to provide a financing guarantee for the entire purchase price to the sole benefit of Capricorn (123). (h) The sellers violated the conditions of the process letter by not providing individual bidders with an agreed and internally approved mark-up of the asset purchase agreement prior to the submission date of the final offer thus rendering the finalisation of the financing significantly more difficult. (i) The sellers based the award of the assets also on environmental criteria and assumed — without further liaising with complainant 3 — that the company would not be able to meet such criteria, although no explicit environmental conditions were introduced by the sellers (124). (j) Capricorn was given preferential treatment as the company sought State aid advice from the law firm McDermott, who had already advised the sellers and the Land on the same matter prior to advising Capricorn.

(119) Complainant 3 claims that the sale represents resources imputable to the State (125), that new State aid in favour of Capricorn is present, and that any recovery order with respect to State aid granted to the sellers of the assets must be extended to Capricorn (126). Finally, complainant 3 claims that the sales contract is invalid due to the violation of the standstill obligation of Article 108(3) TFEU.

(120) Finally, complainant 3 claims that Capricorn failed to pay the second instalment of the purchase price that was due at the end of July, which according to complainant 3 provides an indication that Capricorn did not provide a fully financed offer. Complainant 3 further claims that, subsequently to the above, the financing conditions for the acquisition of the Nürburgring assets were changed to the benefit of Capricorn and in clear deviation from the rules set by the sellers and the process letter given to the bidders, which may constitute further aid to the benefit of Capricorn.

(b) Comments from the insolvency administrators sent by Germany

(121) Pursuant to the insolvency administrators, complainant 3 had not submitted any binding financing commitment for EUR 30 million neither along with its confirmatory bid of 17 February 2014 (that referred to a binding financing commitment of […] in the amount of EUR 30 million) nor along with the complaint, and the complainant 3's claim that the evidence of financing could be submitted at a later stage was even not demonstrated by non-binding statements of third parties. In contrast to the confirmatory offers of Capricorn and [Bidder 2], the confirmatory offer of complainant 3 did not meet the financing requirements set in the process letter of 17 October 2013. On 11 March 2014, the sellers had therefore no ground to award the contract to complainant 3. For the sellers, the risk that waiting for complainant 3's evidence of financing may lead to the reduction of the bidders to one or zero was not acceptable, since: (a) [Bidder 2] consortium insisted on the implementation of the transfer of ownership as of 3 April 2014; and (b) there was lack of progress in the substantiation of complainant 3's offer, despite the fact that the latter had handed in its expression of interest on 17 May 2013 and its indicative offer already on 30 September 2013, therefore the likelihood of closing the transaction with complainant 3 was reduced. The alleged financing commitment of Jupiter Financial Group dated 26 March 2014 was not submitted to the sellers, while a later non-signed letter of investment bank and advisory firm […], dated 31 March 2014, is conditional on the satisfactory conclusion of the due diligence. The development fund for the municipalities surrounding Nürburgring, in the amount of EUR 200 million, was to no benefit of the sellers.

(122) According to the insolvency administrators, the bidders were informed that the selection of the successful tenderer maybe carried out shortly after the deadline for the submission of offers on 17 February 2014. The information provided by the sellers could not give an expectation that the process would be extended. The press release quoted by complainant 3 states that the insolvent administrators intend to conclude the contract in the first quarter of 2014. The insolvency administrator states that it is not true that he had publically stated that it is aimed to take a decision at the end of March, that Capricorn was informed already before the meeting of the creditors' committee about the award of the contract and that a press release was published by Capricorn on 9 March 2014.

(123) The insolvency administrators state that the transaction structure (sale of individual assets, asset clusters or all assets, without transfer of shares or liabilities) had not changed during the bidding process. The term ‘clean balance sheet’ stands for nothing else than the exclusion of the transfer of liabilities with the sale. The fact that the sellers are owner companies and that the operation business is carried out by NBG, was communicated to all interested parties already in the teaser that was sent to complainant 3 on 17 May 2013. According to the insolvency administrators, if complainant 3 became aware of the activity of NBG indeed only during the due diligence, as alleged, it can be concluded that complainant 3 dealt unsatisfactorily with the extensive information put at the disposal before the submission of indicative offers. At no moment in time, the sellers had required that the buyer takes over the contracts of NBG. A take-over of the lease contract between the sellers and NBG by the buyer was not considered by the insolvency administrators, because of the special situation of NBG in view of the transfer of assets sought from the outset. The insolvency administrators claim that complainant 3 had realised very late that in case of a take-over of the assets as of 1 January 2014, it would have a predominantly ‘empty’ Nürburgring, and the new contracts with customers and sponsors would lead to (increased) revenues only in the 2015 season due to the planning time of (racing) events. Moreover, the sellers had repetitively stressed that the bidders could define the subject of the purchase.

(124) As regards the claims for damages of third parties, the sellers informed complainant 3 that it would be hardly possible for it to conclude new contracts with the customers of NBG under terms for the customer worse than the running contract, insofar as the issue of a compensation of damages for the non-fulfilment of the contracts with NBG is not clarified. It was necessary to address the risk that the buyer and the contractual partners conclude a new contract that leads to a situation where the contractual partner pays a high consideration, asks for a compensation of the difference with the old amount of consideration and pays in the later years, for which there was no contract with NBG, a substantial lower consideration. The requirement of the sellers for such exclusion is not unusual for asset deals that lead to business close-down and allows to guarantee the best sale in the interest of the creditors.

(125) Pursuant to the insolvency administrators, the deadline for the submission of the confirmatory offers was extended by letter of 17 December 2013 because also other bidders had not yet submitted a satisfactory offer. It was repetitively made clear to the bidders that NBG took over the operative business only after the 2012 season, that it had therefore to fulfil largely the contracts of NAG and that a reliable accounting for the operational business did thus not (yet) exist. According to the insolvency administrators, it is up to the potential buyers to take account of the related risks.

(126) The insolvency administrators indicate that on 6 March 2014, complainant 3 submitted a mark-up to the asset sale agreement to its confirmatory offer. The draft asset purchase agreement negotiated on 13 February was from the sellers; it was therefore clear that the next draft would be produced by complainant 3.

(127) According to the insolvency administrators, all the bidders that qualified to the respective phase of the selection process had the same documents at their disposal in the data room. The documents identified in the complaint were not available to the sellers and particularly to other bidders earlier, all tenderers had the same chance to view the documents in the data room, and other tenderers concluded the due diligence with the same documents. All the bidders were informed early enough that the accounting of the companies had deficiencies. Almost all documents of the sellers and NBG were put in German in the data room, and the sellers were not obliged to provide all documents in English.

(128) In addition, the insolvency administrators bring forward that the deadline for the submission of offers and evidence of financing was satisfactory. Complainant 3 had 10 months (8 April 2013, as the date of the first contact between [Bidder 3] and the sellers, until 17 February 2014) for the submission of evidence of financing and almost four months (23 October 2013 until 17 February 2014) for the due diligence. The insolvency administrators state that they exceeded the requirements that can be deduced from the decisional practice of the Commission (127).

(129) The negotiations for the new contract on the supply of beer and with ‘Rock am Ring’ were not negotiated by Capricorn but by NBG, and the corresponding documents were put in the data room. There is no link to Capricorn claimed by complainant 3.

(130) The sellers had not introduced any environmental criteria in the tender process for selecting the final offer. The only criteria of the tender process for selecting the final offer were: (a) the maximisation of the total proceeds for all of the assets; and (b) the expected transaction security. Complainant 3's offer could not be selected because it was missing the latter criterion, i.e. it did not have transaction security, because complainant 3 had not submitted a proof of financing with its confirmatory offer. At the same time, the sellers carried out discussions with [Bidder 2] and the final stage of the purchase agreement's negotiation with [Bidder 2] and Capricorn, in view of [Bidder 2]'s offer of EUR [32-39] million (see Table 10 below) and the negotiation between Capricorn and […] resulting in the latter bank's financial commitment dated 10 March 2014. Therefore, based on the absence of proof of financing with the confirmatory offer of complainant 3, there was a high risk of non-conclusion of the contract with complainant 3. Furthermore, the insolvency administrators tried to estimate the chances of complainant 3 to secure the financing by assessing further indicators of complainant 3's business model that could speak for the implementation of the transaction. The business model of complainant 3 was based on […] and on the. […]. As the noise requirements valid for Nürburgring do not allow for […] and a […] does not exist, the implementation of the concept in a short term could not be expected. The concept of complainant 3 was therefore evaluated as an indicator for a substantial risk in view of the conclusion of the contract or at least for a substantial time and negotiation requirements. The compliance of the concept with the noise requirements at Nürburgring was not an award criterion.

(131) With regards to complainant 3's claim that Capricorn's offer was not unconditional, since it was subject to a non-contestable decision by the Commission making clear that there is no extension of the recovery order, the insolvency administrators and Germany argue that complainant 3 had conditions in its mark-up contract with a similar effect. According to the provisions included in the relevant parts of those mark-up contracts, as submitted by the insolvency administrators and Germany, the purchaser and/or the seller had the right to withdraw from the contract if no positive decision of the Commission had been issued by 15 July 2014 (as stipulated in draft contract of 14 January 2014) or 31 December 2014 (as stipulated in draft mark-up contract of 14 February 2014).

(132) According to the insolvency administrators, the fact that none of the two bidders that submitted a qualified confirmatory offer met fully the requirement of a secured financing (guarantee regarding the price amount or payment of that amount to an escrow account), and that the sellers had therefore allegedly waived that requirement de facto, without having informed complainant 3, is no proof of an non-transparent process. Complainant 3 was not affected because it did not submit any confirmatory offer with proof of financing. Informing all bidders about the alleged waiver would not influence the tender process. Moreover, the waiver is not a causal for the non-submission of financing confirmations by complainant 3, and it corresponds to the behaviour of a hypothetical private seller.

(133) The insolvency administrators argue that the measures taken by the insolvency administrators or the committee of creditors are not imputable to the State, and that no advantage to Capricorn is evident as the sellers implemented the selection process according to the standard of an operator acting on market conditions.

(134) Finally, as regards the claim that Capricorn did not provide a fully financed offer because it failed to pay the second instalment of the purchase price, and that there may be further aid to Capricorn because, subsequently to the above, the financing conditions for the acquisition