CELEX: 62019CC0665
Language: en
Date: 2021-04-29 00:00:00
Title: Opinion of Advocate General Pitruzzella delivered on 29 April 2021.###

OPINION OF ADVOCATE GENERAL
PITRUZZELLA
delivered on 29 April 2021 (1)

Case C‑665/19 P

NeXovation, Inc.

v

European Commission

(Appeal – State aid – Aid in favour of the Nürburgring complex – Sale of the assets of the beneficiaries of the State aid found to be incompatible – Open, transparent, non-discriminatory and unconditional tender process – No difficulties that would have required the initiation of a formal investigation procedure – Obligation of the General Court to state reasons – Article 20(2) of Regulation No 659/1999 – Infringement of the procedural rights of the interested parties)

1.        By the appeal which is the subject of this Opinion, the company NeXovation, Inc. (‘the appellant’) asks the Court of Justice to set aside the judgment of the General Court of the European Union of 19 June 2019, NeXovation v Commission (T‑353/15, EU:T:2019:434; ‘the judgment under appeal’), by which the General Court dismissed its action for the annulment of Commission Decision (EU) 2016/151 of 1 October 2014 on the State aid SA.31550 (2012/C) (ex 2012/NN) implemented by Germany for Nürburgring (‘the final decision’). (2)

2.        This case raises questions concerning the scope of the General Court’s obligation to state reasons for its judgments and the extent of the procedural rights of interested parties which have lodged a complaint with the Commission regarding State aid.
I.      Facts

3.        The facts of the dispute are set out in paragraphs 1 to 15 of the judgment under appeal and, for the purposes of the present proceedings, may be summarised as follows.

4.        The Nürburgring complex (‘the Nürburgring’), located in the German Land of Rhineland-Palatinate, consists of a motor-car race track, a leisure park, hotels and restaurants.

5.        Between 2002 and 2012, the owners of the Nürburgring (‘the sellers’) were the beneficiaries, mainly from the Land of Rhineland-Palatinate, of support measures regarding the construction of a leisure park, hotels and restaurants as well as the organisation of Formula 1 races.

6.        Following a complaint, those support measures became the subject of a formal investigation procedure, under Article 108(2) TFEU, initiated by the Commission in 2012.

7.        In the same year, the Amtsgericht Bad Neuenahr-Ahrweiler (Local Court, Bad Neuenahr-Ahrweiler, Germany) found that the sellers were insolvent and it was decided to proceed to the sale of the sellers’ assets (‘the Nürburgring assets’). A tender process (‘the tender process’) was launched which concluded with the sale of the Nürburgring assets to Capricorn Nürburgring Besitzgesellschaft GmbH (‘Capricorn’).

8.        On 10 April 2014, the appellant filed a complaint with the Commission in which it argued that the tender process had not been open, transparent, non-discriminatory and unconditional and had not achieved a market price for the sale of the Nürburgring assets, inasmuch as the assets had been transferred to a tenderer, Capricorn, whose offer was lower than its own offer and which had been preferred in the tender process. According to the complaint, there was thus aid in favour of Capricorn, corresponding to the difference between the market price for the Nürburgring assets and the price which Capricorn had paid for those assets. Capricorn, moreover, had ensured the continuity of the sellers’ economic activities. The decision on the recovery of the aid received by the sellers should therefore, according to the appellant, be extended to Capricorn.

9.        On 1 October 2014, the Commission adopted the final decision. In that decision, the Commission, first, found that some of the measures granted by the Federal Republic of Germany in favour of the sellers were unlawful and incompatible with the internal market and stated that any potential recovery of that aid would not concern Capricorn or its subsidiaries (‘the first decision at issue’). (3)

10.      Secondly, in the final decision, the Commission determined that the sale of the Nürburgring assets to Capricorn did not constitute State aid. (4) The Commission took the view that that sale had taken place by means of an open, transparent and non-discriminatory tender process and that that process had achieved a sale of those assets at the market price (‘the second decision at issue’).
II.    The procedure before the General Court and the judgment under appeal

11.      By originating application lodged at the General Court Registry on 26 June 2015, the appellant brought an action for the annulment of both the first and second decisions at issue.

12.      In the judgment under appeal, the General Court first of all ruled the action inadmissible in so far as it sought the annulment of the first decision at issue. The General Court found that the appellant had not shown that it was individually concerned by that decision within the meaning of the fourth paragraph of Article 263 TFEU. (5)

13.      With regard to the claim for annulment of the second decision at issue, the General Court first of all found that the appellant had standing, as an interested party, to bring an action to protect the procedural rights available to it under Article 108(2) TFEU (6) and a legal interest in bringing an action. The General Court consequently examined the substance of the pleas put forward in support of that claim, rejected them all and, accordingly, dismissed the action in its entirety. (7)
III. The procedure before the Court of Justice and the forms of order sought

14.      The appellant claims that the Court of Justice should set aside points 3 and 4 of the operative part of the judgment under appeal and annul the first and second decisions at issue or, in the alternative, refer the case back to the General Court and order the Commission to pay the costs.

15.      The Commission contends that the Court should dismiss the appeal and order the appellant to pay the costs.
IV.    Analysis of the appeal

16.      In support of its appeal, the appellant puts forward six grounds of appeal.

17.      The first ground of appeal relates to the part of the judgment under appeal which concerns the first decision at issue. The appellant argues that the General Court erred in concluding that it was not individually concerned by that decision.

18.      The other five grounds of appeal, on the other hand, relate to the part of the judgment under appeal which concerns the second decision at issue. More specifically, the second ground of appeal alleges incorrect application of the concept of State aid; the third ground of appeal alleges incorrect application of the concept of ‘serious difficulties’; the fourth ground of appeal alleges incorrect application of Article 20(2) of Regulation No 659/1999; (8) the fifth ground of appeal alleges incorrect assessment of the impartiality of the examination of the complaint lodged by the appellant; and, lastly, by the sixth ground of appeal, the appellant alleges errors of law in the assessment of the adequacy of the statement of reasons for the second decision at issue.

19.      As the Court has requested, I shall focus my analysis on the second to sixth grounds of appeal, which relate to the claim for annulment of the second decision at issue.

20.      As a preliminary remark, it should be observed that it is common ground that the second decision at issue is a decision adopted after the preliminary-examination stage (9) in which the Commission found that the measures in question did not constitute State aid within the meaning of Article 107(1) TFEU and, consequently, decided not to initiate the formal investigation procedure provided for by Article 108(2) TFEU. (10)

21.      I would also observe in that connection that, as pointed out in paragraphs 77 to 82 of the judgment under appeal, it is clear from the case-law that where an applicant seeks the annulment of a decision, adopted after the preliminary-examination stage, finding that the measure at issue is not State aid, or of a decision not to raise objections, it essentially takes issue with the fact that the Commission has not initiated the formal investigation procedure, thereby acting in breach of the procedural rights available to the applicant in the course of such a procedure. In order to have its application for annulment upheld, the applicant may invoke any plea capable of showing that the assessment of the information and evidence that was available to the Commission should have raised doubts as to its classification of that measure as State aid or its compatibility with the internal market. (11)
A.      The second ground of appeal, alleging incorrect application of the concept of State aid

1.      Arguments of the parties

22.      The second ground of appeal is divided into four parts.

23.      By the first part of that ground, the appellant submits that the General Court erred in concluding, in paragraphs 122 to 128 of the judgment under appeal, that it did not appear that the Commission ought to have had doubts as to the binding nature of a letter from Deutsche Bank of 10 March 2014, which Capricorn had presented as a financial guarantee in support of its tender. The appellant argues that it is clear from various pieces of evidence, and in particular from the express mention in the annex to the letter that it was not binding, that this was no more than a letter of intent. In its reply, the appellant argues that the issue of determining whether or not the letter was binding is a question of law that may be examined by the Court of Justice in an appeal and, in the alternative, it maintains that the General Court in any event distorted the sense of the letter.

24.      The second part of the second ground of appeal takes issue with the General Court’s conclusion that the appellant had failed to demonstrate that the Commission ought to have had doubts about the transparency of the tender process in so far as concerns the deadlines for submitting tenders.

25.      The appellant maintains, first, that the General Court overlooked the fact that it had been misled with regard to the deadlines by the sellers, which had informed it of an extension of the deadline to 31 March 2014. The General Court also disregarded the fact that such a change in the conditions of the procedure should have been applied to all tenderers.

26.      Secondly, the General Court also ignored the fact that, as the appellant had already argued, a tender process of that kind does not follow the approach that would have been taken by a normal private investor. That is confirmed by point 93 of the Commission Notice on the notion of State aid, (12) from which it is clear that a failure to follow EU procurement rules should raise doubts as to compliance with the provisions on State aid. In the present case, such provisions were not complied with, inasmuch as EU law does not permit free negotiations to take place after the expiry of the deadline. The General Court failed to address those concerns.

27.      Thirdly, the General Court ignored the fact that, as the appellant had argued, the final decision contains contradictory statements, in recitals 272 and 275(c), regarding the question of whether or not the sellers had extended the deadline for the submission of tenders.

28.      By the third part of the second ground of appeal, the appellant argues that the General Court ignored three arguments which it had put forward concerning three changes that occurred in the course of the tender process, of which not all of the potential tenderers were informed.

29.      First, whereas, initially, it had been proposed that the appellant could acquire the Nürburgring assets on the basis of a clean balance sheet, that is, without having to take over any past or ongoing liabilities or obligations relating to those assets, it later transpired that all the material agreements relating to the operation of the Nürburgring had been concluded by a third party on the basis of a business lease contract with the sellers, which the appellant, had it purchased the Nürburgring, would have been forced to take over. In the judgment under appeal, the General Court entirely failed to consider the argument put forward in that regard.

30.      Secondly, the General Court did not consider the argument which the appellant had put forward regarding the business lease contract awarded to Capricorn, which had initially been developed as a fall-back option should the tender process not be concluded successfully or should the Commission’s decision relating to the tender process be contested. Even though that fall-back option was clearly relevant to determining the final price, it was not communicated to other tenderers. Consequently, the information provided in the course of the tender process was not complete and the process did not, therefore, comply with the requirement of transparency imposed by State aid law.

31.      Thirdly, the General Court failed to examine the appellant’s argument that the sellers had introduced a selection criterion based on environmental considerations in the course of the tender process, without that being communicated to all the tenderers.

32.      By the fourth part of the second ground of appeal, the appellant submits that the General Court failed to address various other points which it had made concerning, on the one hand, the transparency of the tender process and, on the other, the discriminatory nature of the tender process.

33.      The Commission contends that the second ground of appeal should be dismissed in its entirety. The first part of that ground and the arguments raised under the second part of that ground are inadmissible in that, in part, they seek to call into question findings of fact made by the General Court and, in part, they fail to specify which parts of the judgment under appeal they dispute. In so far as the third part of the second ground of appeal is concerned, the Commission submits that the first two arguments are based on an incorrect reading of the judgment under appeal. As for the third argument, the General Court was not required to answer it, since it based its finding that the appellant’s tender was not credible and binding on other evidence. The arguments which the appellant makes under the fourth part of the second ground of appeal are, according to the Commission, inadmissible or ineffective.
2.      Assessment

(a)    The first part of the second ground of appeal, concerning the binding nature of the letter from Deutsche Bank of 10 March 2014

34.      The first part of the second ground of appeal seeks to challenge the analysis, set out in paragraphs 124 to 127 of the judgment under appeal, which led the General Court to conclude, in paragraph 128 of the judgment, that it did not appear that the Commission ought to have had doubts as to the binding nature of the letter from Deutsche Bank of 10 March 2014 regarding the financing of Capricorn’s tender.

35.      It should be recalled in that connection that, according to settled case-law, the General Court has exclusive jurisdiction to find and assess the facts and, in principle, to examine the evidence that it accepts in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. That assessment does not, therefore, constitute, save where the clear sense of that evidence has been distorted, a point of law which is subject, as such, to review by the Court of Justice in an appeal. (13)

36.      In the present case, the arguments which the appellant puts forward in the first part of its second ground of appeal seek to challenge the General Court’s assessment of the letter from Deutsche Bank of 10 March 2014 in so far as concerns its binding nature. The appellant therefore essentially asks the Court of Justice to carry out, in the context of an appeal, a new assessment of a piece of evidence produced to the General Court, something which, in accordance with the case-law I mentioned in the preceding point, is not permissible.

37.      It must also be observed that, in its appeal, the appellant in no way argued a distortion of the sense of that piece of evidence on the General Court’s part. It is only in its reply, and then only in the alternative, that the appellant alleged that the General Court distorted the sense of that letter. However, it must be borne in mind that it follows from Article 127 of the Rules of Procedure, applicable to the appeal procedure by virtue of Article 190(1) thereof, that no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which came to light in the course of the procedure, (14) which is not the case in this instance.

38.      It follows from the foregoing that, in my view, the first part of the second ground of appeal must be dismissed as inadmissible.
(b)    The second, third and fourth parts of the second ground of appeal and the scope of the General Court’s obligation to state reasons for its judgments

39.      In the second, third and fourth parts of the second ground of appeal, the appellant makes a number of arguments to the effect that the General Court overlooked and failed to address various arguments which it had put forward at first instance. I think it useful, before analysing those parts, to review the case-law principles developed by the Court of Justice concerning the scope of the General Court’s obligation to state the reasons for its judgments.
(1)    The scope of the General Court’s obligation to state reasons for its judgments

40.      According to settled case-law, the duty to state reasons, incumbent on the General Court under Article 36 of the Statute of the Court of Justice of the European Union, which is applicable to the General Court by virtue of the first paragraph of Article 53 of that statute and Article 117 of its own rules of procedure, requires the statement of the reasons on which a judgment is based clearly and unequivocally to disclose the General Court’s reasoning in such a way as to enable the persons concerned to ascertain the reasons for the decision taken and the Court of Justice to exercise its power of review. (15)

41.      It is also clear from the case-law that a plea alleging that the General Court failed to rule on arguments relied on at first instance amounts essentially to a plea of breach of the obligation to state reasons (16) and that the question of whether the grounds of a judgment of the General Court are contradictory or inadequate is a question of law which is amenable, as such, to judicial review on appeal. (17)

42.      In the context of an appeal, the purpose of review by the Court of Justice is, inter alia, to consider whether the General Court addressed, to the requisite legal standard, all the arguments raised by the appellant. (18)

43.      It is, however, also clear from the settled case-law that the obligation to state reasons does not require the General Court to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case, and the reasoning may therefore be implicit, on condition that it enables the persons concerned to know why the General Court has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review. (19) The General Court is not, however, obliged to define its position on matters which are plainly irrelevant or to anticipate potential objections. (20)

44.      It follows from the principles I have set out that while, according to the case-law, the General Court may, subject to the conditions I have mentioned, fulfil its obligation to state reasons for its judgments by recourse to implicit reasoning, it may not simply omit to address, expressly or implicitly, the arguments relied on before it, which are not plainly irrelevant, or distort the substance of those arguments. An omission of that kind constitutes a failure to state reasons, contrary to the duty to state reasons incumbent on the General Court, and an infringement of the right to effective judicial protection guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union. (21)

45.      It is, therefore, in the light of those principles that it is necessary to analyse the arguments put forward by the appellant in the second, third and fourth parts of the second ground of appeal.
(2)    The second part of the second ground of appeal, concerning the arguments relating to the deadlines for the submission of tenders

46.      In the second part of the second ground of appeal, the appellant argues that the General Court overlooked or disregarded various arguments which it put forward concerning the fixing of the deadline for the submission of tenders in the course of the tender process and by which it sought to show that the tender process had not been transparent.

47.      It must first of all be observed that the General Court analysed the claim that the tender process had not been transparent in paragraphs 119 to 121 of the judgment under appeal. More specifically, in paragraph 119 of that judgment, the General Court noted, in particular, that it was apparent from the letter from KPMG of 17 December 2013 that the final deadline for the submission of confirmatory bids had been set at 17 February 2014. However, the General Court also noted that that letter stated that bids submitted after the deadline would also be considered, albeit the sellers were free to make their selection decision shortly after the deadline for the submission of tenders. The General Court thus made the finding of fact, in paragraph 120 of the judgment under appeal, that it was known to all tenderers that it was possible to submit a tender after 17 February 2014.

48.      The appellant argues, first, that the General Court overlooked the fact that it had been misled with regard to the deadlines by the sellers, which had informed it of an extension of the deadline to 31 March 2014, and that the General Court also disregarded the fact that such a change in the conditions of the procedure should have been applied to all tenderers.

49.      In my view, those two arguments are inadmissible in that they seek, in substance, to call into question the findings of fact made by the General Court in paragraphs 119 and 120 of the judgment under appeal, and mentioned in point 47 above, concerning the fixing of the final deadline for the submission of tenders and the awareness of that deadline on the part of all the tenderers. I must point out in that connection that, in its appeal, the appellant has not argued any distortion of the facts and has only made that argument in its reply, which is to say, as I explained in point 37 above, out of time.

50.      Secondly, the appellant submits that the General Court ignored the submissions by which it made the legal argument that the approach followed in the tender process, as reported in the final decision, (22) with regard to deadlines did not comply with the requirements of transparency and that no private investor would have taken such an approach.

51.      Indeed, it is clear from the documents before the General Court at first instance that, in its action, the appellant had questioned the compatibility with the requirements of a transparent procedure of a tender process in which no absolute deadline was fixed or, in other words, no true end point to the procedure, but in which the sellers remained free to select qualifying tenderers shortly after the date indicated as the deadline and in which qualifying tenderers were not precluded from amending their bids or submitting proof of financing even after that date.

52.      I must observe that, on reading the judgment under appeal – and in particular paragraphs 119 to 121 thereof, in which the General Court ruled on the claim that the tender process had not been transparent – it does not appear that the General Court responded to the legal argument by which the appellant challenged the compatibility with EU law of the approach taken in the tender process with regard to the fixing of a final deadline for the submission of tenders. Nor can any answer to that argument be inferred, even implicitly, from the General Court’s reasoning in paragraphs 119 to 121 of the judgment under appeal. Indeed, in order to answer a legal argument by which it is alleged that the failure to stipulate an absolute deadline in a tender procedure is not consistent with the principle of transparency, it is not sufficient, in my view, to make the factual finding that all the tenderers were aware of the possibility of submitting a bid even after the deadline, which had already been extended.

53.      I therefore consider that the judgment under appeal is vitiated by a failure to state reasons in that regard.

54.      Thirdly, the appellant maintains that the General Court ignored its argument that the final decision contained contradictory statements, in recitals 272 and 275(c), regarding the question of the sellers’ extension of the deadline for the submission of tenders.

55.      I would observe in that connection that although the judgment under appeal does not in fact contain any express answer to that argument, it may be inferred from paragraph 119 of that judgment that the General Court made the factual finding that the deadline had in fact been extended, in the manner and subject to the conditions indicated in that paragraph, which is, in my view, a sufficient response to the claim that the judgment under appeal contains inadequate reasoning with regard to the extension of the deadline. On the other hand, to the extent that the appellant seeks to allege, by that argument, an error of law on the General Court’s part, in that it found no contradiction in the reasoning for the second decision at issue, that argument falls within the scope of the sixth ground of appeal, which I shall discuss in point 118 et seq.of this Opinion.
(3)    The third part of the second ground of appeal, relating to three arguments concerning the alleged lack of transparency in the tender process

56.      By the third part of the second ground of appeal, the appellant submits that the General Court ignored three arguments which it had put forward in support of its claim that the tender process had lacked transparency. Those three arguments related to three changes that occurred during the course of the tender process of which, according to the appellant, not all potential tenderers were informed, in breach of the requirement of transparency.

57.      In so far as the first of those arguments is concerned, it is apparent from the documents before the General Court at first instance that the appellant had argued before that court that the Commission had erred in stating, in recital 275(a) of the final decision, that the transaction concept had not been altered during the course of the tender process. According to the appellant, in fact, while the sale transaction had initially been structured on the basis of a ‘clean balance sheet’ sale, the structure of the transaction was subsequently changed without the tenderers being informed, in breach of the requirements of transparency.

58.      In so far as the second argument is concerned, it is apparent from the documents before the General Court at first instance that the appellant had argued before that court that the information provided in the course of the tender process was incomplete and that, consequently, the process did not comply with the requirements of transparency under State aid law. The appellant had submitted that not all tenderers had been provided with information about the business lease contract awarded to Capricorn, which had initially been developed as a fall-back option should the tender process not be concluded successfully or should the Commission’s decision relating to the tender process be contested. The appellant had argued that the Commission had, wrongly in the appellant’s submission, not taken into consideration the failure to provide that information to the other tenderers in the course of the tender process, even though it was relevant to determining the bid price.

59.      As regards the third argument, it is apparent from the case file that the appellant had argued before the General Court that the Commission’s assessment of the environmental aspects, in recital 275(i) of the final decision, was incorrect, inasmuch as the sellers had, in the appellant’s view, introduced a selection criterion based on environmental considerations in the course of the tender process, without that being communicated to all the tenderers, which entailed a breach of the requirements of transparency.

60.      On reading the judgment under appeal, it is not apparent that the General Court expressly answered any of those arguments that sought to call in question the compliance of the tender process with the requirement of transparency. Moreover, the statement of reasons for the judgment under appeal does not, in my view, reveal, even implicitly, the reasons for which the General Court did not uphold those arguments. Indeed, no implicit answer to those arguments, and the first and second arguments in particular, can in any way be inferred from paragraphs 119 to 121 of the judgment under appeal, in which the General Court ruled on the claim that the tender process had not been transparent. Nor can such an answer be inferred from paragraphs 146 to 150 of the judgment under appeal, in which the General Court addressed, rather laconically it must be said, the arguments relating to the business lease contract.

61.      Contrary to the Commission’s contention, no answer to the first of those arguments can be inferred, even implicitly, from the statement in the fourth indent of paragraph 9 of the judgment under appeal that tenderers could submit tenders for the assets in their entirety, for defined asset clusters or for individual assets. That statement, contained in the passage describing the tender process, in no way answers, even implicitly, the appellant’s claim that the tender process was not transparent.

62.      It follows from the foregoing considerations that, in my view, since the General Court did not address, either expressly or implicitly, various arguments which the appellant had put forward in support of its claim that the tender procedure was not transparent, the statement of reasons for the judgment under appeal does not enable the persons concerned to know why the General Court did not uphold that claim or provide the Court of Justice with sufficient material for it to exercise its power of review. Consequently, I consider that the judgment under appeal is vitiated by a failure to state reasons in that regard.
(4)    The fourth part of the second ground of appeal, concerning various arguments relating to the lack of transparency and discriminatory nature of the tender process

63.      By the fourth part of the second ground of appeal the appellant argues that the General Court failed to consider two series of arguments, one, like the arguments mentioned in the third part of the second ground of appeal, relating to the claim alleging a lack of transparency in the tender process, and the other relating to the claim that the tender process was discriminatory.

64.      In so far as concerns, in the first place, the arguments relating to the claim alleging a lack of transparency in the tender process, it is apparent from reading the documents before the General Court at first instance that the appellant had made the following arguments before that court: first, that no announcement of the tender process was made outside the European Union; secondly, that various important documents relating to the sale were not made available or were made available too late or were misleading; thirdly, that the Commission was wrong to conclude that the provision of a mark-up version of the asset purchase agreement was merely a part of the commercial negotiations and was not therefore relevant from a State aid perspective; fourthly, that the Commission was wrong to conclude that the late provision of information during the tender process had no effect on the submission of tenderers’ final bids or on the finalisation of the financial calculations required for that purpose; and, fifthly, that the Commission was wrong to conclude that KPMG had provided all tenderers with all the necessary information to enable them to carry out a proper valuation of the Nürburgring assets.

65.      As in the case of the arguments mentioned in the third part of the present ground of appeal, it is not apparent from reading the judgment under appeal that the General Court expressly answered any of the arguments mentioned in the preceding point. Nor does the statement of reasons for the judgment under appeal reveal, even implicitly, the reasons for which the General Court did not uphold those arguments. In particular, no implicit answer to those arguments may in any way be inferred from paragraphs 119 to 121 of the judgment under appeal, in which the General Court ruled on the claim that the tender process had not been transparent, and in which it confined its analysis to the question of the deadline fixed for the submission of tenders.

66.      In so far as concerns, in the second place, the arguments relating to the claim that the tender process was discriminatory, it is apparent from reading the documents before the General Court at first instance that the appellant had argued before that court that the Commission had failed to investigate the following matters: first, that the appellant had been discriminated against, inasmuch as it had not been provided with copies of all the documents for the tender process in English; secondly, that Capricorn had been granted privileged access to information by comparison with the other tenderers; thirdly, that the same partner in a prominent American law firm had advised first the sellers and then Capricorn; and, fourthly, that Capricorn had received preferential support both after 17 February 2014 and in obtaining financing from Deutsche Bank.

67.      With regard to those arguments also, I would observe that it is not apparent from reading the judgment under appeal that the General Court expressly answered any of them, and that the statement of reasons for the judgment under appeal does not reveal, even implicitly, the reasons for which the General Court did not uphold them. In particular, no implicit answer to those arguments may be inferred, in my view, from the passage in the judgment under appeal, from paragraphs 122 to 134, in which the General Court analysed the claim that the tender process had been discriminatory, and in which it confined its analysis to the question of the requirement for there to be a binding financial commitment. I therefore consider that, in that regard also, the judgment under appeal is vitiated by a failure to state reasons.

68.      It follows from the foregoing considerations that, in my view, the judgment under appeal is vitiated by a variety of omissions in the statement of reasons and that the second, third and fourth parts of the second ground of appeal should consequently be upheld.
B.      The third ground of appeal, concerning incorrect application of the concept of serious difficulties

1.      Arguments of the parties

69.      The third ground of appeal is divided into three parts.

70.      By the first part of that ground, the appellant submits that although the General Court found, in paragraph 91 of the judgment under appeal, that the preliminary examination stage had lasted less than six months (from the time when the complaint was lodged, in April 2014, to the time when the final decision was adopted, in October 2014) and that that did not show the existence of serious difficulties such as to justify the initiation of the formal investigation procedure, the General Court nevertheless failed to respond to certain arguments put forward in the application to show the existence of such serious difficulties. The appellant had in fact argued that serious difficulties could indeed be inferred, first, from the fact that the adoption of the final decision had had to be postposed several times and the circumstance that, on 13 April 2015, the Commission had published a corrigendum to the decision and, secondly, from the fact that the Commission had begun examining the sale process for the Nürburgring assets as early as the autumn of 2012 and had been in close contact with the sellers since 2013. Given those circumstances, the appellant had contended that the additional delay of six months in order to decide on the implementation of the tender process was excessive, yet the General Court failed to consider that argument.

71.      In the second part of the third ground of appeal, the appellant takes issue with the General Court’s reasoning in paragraph 98 of the judgment under appeal, concerning the letter from Deutsche Bank of 10 March 2014. It maintains that the assertions contained in that paragraph of the judgment under appeal need to be corrected in various respects. The Commission had erred in its assessment of the conditions for the existence of an open, transparent and unconditional tender process and had, in fact, encountered serious difficulties. More specifically, in July 2014, the Commission had required an amended version of Deutsche Bank’s letter; the Commission had admitted that it did not know whether Deutsche Bank’s letter of intent had been signed or withdrawn and that it had only assessed the design of the tender process. Furthermore, a German public prosecutor had opposed the binding nature of the letter.

72.      In the third part of the third ground of appeal, the appellant submits that the General Court failed to consider its argument relating to the continuation of the sale process for the Nürburgring assets, which in fact revealed the existence of serious difficulties in the preliminary examination stage. The General Court confined itself to stating, in paragraphs 102 to 104 of the judgment under appeal, that the sale had taken place on 28 October 2014 on the basis of a trust agreement dated 5 October 2014, which is to say after the final decision had been adopted. However, the General Court overlooked the fact that the appellant had provided information in that regard to the Commission as early as 22 September 2014 and that a press report of 30 September 2014, published before the final decision was adopted, contained that information. In addition, the Commission had subsequently promised to take further developments in the matter into account.

73.      The Commission maintains that the third ground of appeal should be dismissed as partly inadmissible and partly unfounded.
2.      Assessment

74.      In the first part of the third ground of appeal, just as in the second, third and fourth parts of the second ground of appeal, the appellant argues that the General Court failed to consider certain arguments which it had raised at first instance. In that context, the arguments relate to the duration of the preliminary-examination stage, which, it is argued, had pointed to the existence of serious difficulties.

75.      I must observe in that connection that, by contrast with the case of the arguments in the parts of the second ground of appeal which I have just mentioned, of which there is no trace in the judgment under appeal, the General Court did, in paragraph 88 of the judgment under appeal, state that the appellant had submitted to it that the decision had been postponed several times and that the corrigendum to the final decision had been adopted more than a year after its complaint was lodged with the Commission.

76.      In response to the claim concerning the duration of the preliminary-examination stage, made in the plea alleging the existence of serious difficulties in the assessment of the sale of the Nürburgring assets, the General Court did not, however, expressly answer those arguments, but confined itself to observing, in paragraph 91 of the judgment under appeal that, since the final decision had been taken on 1 October 2014, less than six months after the appellant lodged its complaint, a preliminary-examination stage of such a duration was not capable of showing the existence of serious difficulties of assessment such as to justify the initiation of the formal investigation procedure.

77.      In those circumstances, the judgment under appeal can, in my view, be understood in the sense that while the General Court did not expressly reject the two arguments mentioned in point 75 above, given the duration of the preliminary-examination stage of less than six months, it regarded the two circumstances to which the appellant had referred – namely, first, the fact that during that period the adoption of the final decision had been postponed several times and, secondly, the fact that that decision was the subject of a corrigendum issued a year later – as irrelevant to a finding of serious difficulties of assessment.

78.      That analysis, which may be inferred implicitly from the judgment under appeal, is not, in my view, vitiated by error. Indeed, first of all, the postponement of a decision may be due to various reasons and does not, in and of itself, constitute proof of the existence of serious difficulties in the assessment, such as to justify the initiation of the formal investigation procedure. That is particularly true in the case of so short a duration of the preliminary-examination stage leading to the adoption of the final decision.

79.      Secondly, the purpose of issuing of a corrigendum to a decision is to rectify oversights and clerical errors, such as typographical errors, not to alter the content of the decision. Consequently, it does not entail any extension of the duration of the procedure. In any event, I would observe that the appellant has furnished no evidence to support its argument in that regard.

80.      Lastly, in so far as concerns the appellant’s submission that the Commission had begun examining the sale process for the Nürburgring assets as early as 2012, that is not consistent with the General Court’s finding of fact that the duration of the preliminary-examination stage was less than six months, which is a finding not called into question as such by the appellant.

81.      It follows, in my view, from the foregoing that the first part of the third ground of appeal should be dismissed.

82.      As regards the second part of the third ground of appeal, I would observe that, in paragraph 98 of the judgment under appeal, with which the appellant takes issue, the General Court concluded that the Commission had established that the letter from Deutsche Bank of 10 March 2014 had been available to it as early as April 2014 and that there was therefore no reason to doubt the Commission’s assertion that it had carried out its own assessment of that letter and considered that it amounted to proof of financing, the binding nature of which was confirmed by the German authorities.

83.      Those are findings of fact concerning the binding nature of Deutsche Bank’s letter which, as I explained in points 34 to 37 above, cannot be called into question in an appeal without pleading distortion of the facts, which the appellant has done out of time, solely in its reply, and, moreover, without even specifying the precise matters on the basis of which distortion of the facts is alleged. The second part of the third ground of appeal should, therefore, in my view, be held inadmissible.

84.      The third part of the third ground of appeal, on the other hand, seeks to dispute the General Court’s conclusion, in paragraph 104 of the judgment under appeal, that the Commission could not be criticised for not taking a view, in the final decision, on the continuation of the sale process by the transfer to a sub-purchaser of Capricorn’s shares in the acquisition vehicle for the Nürburgring assets, because that transfer had taken place only after the final decision had been adopted.

85.      I would observe in that connection, first, that the General Court did not overlook the appellant’s argument regarding the continuation of the sale process for the Nürburgring assets, but made the finding of fact that that sale had taken place after the final decision had been adopted and concluded therefrom that, in accordance with the case-law mentioned in paragraph 102 of the judgment under appeal, it was not possible to criticise the Commission for not taking a view on that matter after adopting the final decision.

86.      Secondly, the appellant maintains that the General Court overlooked the fact that it had informed the Commission about the continuation of the sale process for the Nürburgring assets to a sub-purchaser a few days before the final decision was adopted and that that transfer had been reported in the press, again, a few days before the final decision was adopted. However, I would observe that, in paragraph 165 of the judgment under appeal, the General Court did answer that argument, finding that the appellant had failed to establish that that information had been available to the Commission at the time when it adopted the final decision. This is, therefore, another factual assessment which the appellant cannot call into question in an appeal, save where the clear sense of the evidence has been distorted. (23) The appellant has pleaded distortion of the evidence only in its reply, and thus out of time, and, moreover, without precisely indicating the evidence the sense of which had been distorted or how it had been distorted. The third part of the third ground of appeal must therefore, in my view, be dismissed as in part unfounded and in part inadmissible.

87.      It follows from the foregoing that, in my opinion, the third ground of appeal should be dismissed in its entirety.
C.      The fourth ground of appeal, alleging incorrect application of Article 20(2) of Regulation No 659/1999

1.      Arguments of the parties

88.      By its fourth ground of appeal the appellant takes issue with the part of the judgment under appeal in which the General Court dismissed its plea alleging infringement of Article 20(2) of Regulation No 659/1999 in that the Commission had failed to inform it of its intention to reject its complaint and to invite it to submit comments in that regard. (24)

89.      According to the appellant, first, the General Court applied Article 20(2) of Regulation No 659/1999 incorrectly, inasmuch as it is clear from that provision that the Commission is under an obligation to inform the interested party of its intention to reject its complaint and to call upon it to submit comments in that regard. In the present case, since it did not inform the appellant of its preliminary assessment, the Commission deprived the appellant of the opportunity to influence the adoption of the decision and of assisting the Commission’s investigation, if necessary, by providing further facts. The objective of the right to submit comments provided for by the provision in question is to protect the rights of the parties as early on as possible in the procedure, and infringement of that right thus constituted a serious infringement, to the detriment of the appellant.

90.      Secondly, the reference in paragraph 188 of the judgment under appeal to the judgment of 18 November 2010, NDSHT v Commission (C‑322/09 P, EU:C:2010:701) is incorrect and misleading. According to the appellant, in that case, the Court was not addressing the need to allow additional comments to be submitted prior to the adoption of a decision. It is also clear from the judgment of 17 July 2008, Athinaïki Techniki v Commission (C‑521/06 P, EU:C:2008:422), that the interested parties have the right to be associated with the procedure in an adequate manner, taking into account the circumstances of the case at issue.

91.      The Commission disputes the appellant’s arguments and submits that the fourth ground of appeal should be dismissed.
2.      Assessment

92.      By its fourth ground of appeal, the appellant alleges an error of law on the General Court’s part in the application of Article 20(2) of Regulation No 659/1999.

93.      It must first be recalled in that connection that, in the version amended by Regulation (EU) No 734/2013, (25) which is applicable to the present case, Article 20(2) of Regulation No 659/1999 (26) provided, in the first subparagraph thereof, that ‘any interested party may submit a complaint to inform the Commission of any alleged unlawful aid or any alleged misuse of aid. To that effect, the interested party shall duly complete a form that has been defined … and shall provide the mandatory information requested therein’ and, in the second subparagraph, that, ‘where the Commission considers that the interested party does not comply with the compulsory complaint form, or that the facts and points of law put forward by the interested party do not provide sufficient grounds to show, on the basis of a prima facie examination, the existence of unlawful aid or misuse of aid, it shall inform the interested party thereof and call upon it to submit comments within a prescribed period which shall not normally exceed one month. If the interested party fails to make known its views within the prescribed period, the complaint shall be deemed to have been withdrawn. The Commission shall inform the Member State concerned when a complaint has been deemed to have been withdrawn’. In accordance with the third subparagraph of Article 20(2), ‘the Commission shall send a copy of the decision on a case concerning the subject matter of the complaint to the complainant’.

94.      The appellant maintains that Article 20(2) of Regulation No 659/1999, and specifically the second subparagraph thereof, confers on it the procedural right to be informed by the Commission, prior to the adoption of a decision, of the latter’s intention to reject the complaint it has submitted and to be invited to submit comments in that regard. Inasmuch as the Commission did not inform the appellant and did not allow it to submit comments before it adopted its decision rejecting its complaint, it infringed the provision in question, and the General Court therefore erred in law by not acknowledging that infringement.

95.      I do not agree with the interpretation of the second subparagraph of Article 20(2) of Regulation No 659/1999 which the appellant advocates.

96.      In that regard, it must be recalled that, according to the settled case-law of the Court, the interpretation of a provision of EU law requires account to be taken not only of its wording, but also of its context, and the objectives and purpose pursued by the act of which it forms part. The legislative history of a provision of EU law may also reveal elements that are relevant to its interpretation. (27)

97.      Interpreting the amended provision in the second subparagraph of Article 20(2) of Regulation No 659/1999 literally, contextually, teleologically and in light of its legislative history leads me to believe that it is not intended, as the appellant maintains, to confer generally on complainants, prior to the adoption of a negative decision on their complaint, a procedural right to be informed of the Commission’s intention to adopt such a decision and to submit comments in that regard. In my view, that provision in fact applies at a very preliminary stage in the procedure and its purpose is to enable the Commission to process expeditiously, for reasons of administrative efficiency, complaints which manifestly (prima facie) do not comply with the minimum formal and substantive requirements for initiating an administrative procedure in the field of State aid. It does not relate to the stage of the preliminary examination of the measures that may have been called into question.

98.      Indeed, it can be understood from the content of the second subparagraph of Article 20(2) of Regulation No 659/1999 that that provision contemplates two cases: first, the case where the formal requirements for submitting a complaint have not been observed, which is to say, where the ‘compulsory complaint form’ is not complied with, and, secondly, the case where the complaint, albeit complying with the formal requirements, does not satisfy the minimum substantive requirements, in that ‘the facts and points of law put forward by the interested party do not provide sufficient grounds to show, on the basis of a prima facie examination, the existence of unlawful aid or misuse of aid’.

99.      The provision in question provides for the same procedural treatment and the same legal consequences in both cases (whether non-compliance with the minimum formal requirements or with the minimum substantive requirements). First, the two cases are treated in the same way procedurally, which is to say that the complainant is given an opportunity to submit comments to make good the formal or substantive shortcoming by providing significant information such as will enable a State aid analysis to be initiated. Secondly, inaction on the part of the complainant or continuing non-compliance with the minimum formal or substantive requirements for the submission of a complaint will result in the Commission’s being entitled to regard the complaint as having been withdrawn.

100. That interpretation of the provision in question is also confirmed by a teleological analysis of it, in the light of the legislative history of the amendment that was made to the provision by Regulation No 734/2013. Indeed, it is apparent from the Commission proposal for a Council regulation which resulted in the adoption of that regulation (28) that the purpose of the amendment was, first, to introduce formal requirements for the submission to the Commission of complaints relating to State aid and, secondly, to enable the Commission to process expeditiously and effectively the ‘many’ State aid complaints which that institution receives which are ‘either not motivated by genuine competition concerns or not sufficiently substantiated’. (29) To that end, the provision in question therefore enables the Commission not to classify as genuine complaints communications which do not comply with the minimum formal and substantive requirements, once the interested party has been given an opportunity to make good the shortcomings of its communication with regard to the minimum formal or substantive requirements. With respect to communications of that kind, the Commission is not, therefore, required to adopt a formal decision; they are deemed to be complaints that have been withdrawn and they can, if appropriate, be registered as market information which the Commission may use at a later stage when conducting an ex officio investigation. (30)

101. That interpretation of the provision in question is also confirmed by paragraph 48(b) of the 2009 version of the Code of Best Practice for the conduct of State aid control procedures, (31) cited, rightly in my view, by the General Court in paragraph 187 of the judgment under appeal and also cited in the proposal for a regulation mentioned in the previous point. (32)

102. In so far as concerns the judgments in Athinaïki Techniki v Commission and NDSHT v Commission, to which the appellant refers, suffice it to observe that they concern the version of the provision in question that was in force prior to the amendment made by Regulation No 734/2013 and they therefore cannot, in my view, be relied upon in order to challenge the interpretation given of the amended version of that provision, or the conclusion expressed in the previous point.

103. It follows from the foregoing considerations that the interpretation according to which Article 20(2) of Regulation No 659/1999, and the second subparagraph thereof specifically, confers on interested parties a procedural right to be informed by the Commission, prior to the adoption of a decision, of its intention to reject the complaint which they have lodged and to be invited to submit comments in that regard should be rejected.

104. I should also mention in that connection that, according to settled case-law, in State aid procedures, interested parties do not have any absolute rights of defence or a right to an adversarial debate with the Commission; their role is merely to provide all information required for the guidance of the Commission. (33)

105. According to the case-law, in the procedure for reviewing State aid, interested parties other than the Member State concerned have limited procedural rights, which do not include a direct adversarial debate with the Commission in the same way as is offered to the Member State concerned, but merely the right to be involved in the administrative procedure followed by the Commission, to an extent appropriate to the circumstances of the case. (34)

106. In the present case, as I mentioned in point 20 above, it is clear that the second decision at issue is a decision adopted after the preliminary-examination stage. Nor is it in dispute that, as is apparent from recital 13 of the final decision, the appellant actively participated in the procedure, which concluded with a decision, in substance, rejecting its complaint, which was in no way deemed to have been withdrawn. It follows, in my view, that the second subparagraph of Article 20(2) of Regulation No 659/1999 is not applicable to the appellant’s situation and that the appellant cannot, therefore, complain that the Commission infringed that provision, or, consequently, that the General Court erred in that regard.

107. It follows from the foregoing that, in my view, the General Court made no error of law regarding the application of Article 20(2) of Regulation No 659/1999 and that the fourth ground of appeal should, therefore, be dismissed.
D.      The fifth ground of appeal, alleging incorrect application of the concept of impartial examination

1.      Arguments of the parties

108. By the fifth ground of appeal, the appellant takes issue with the General Court’s rejection, in paragraphs 209 to 212 of the judgment under appeal, of its plea alleging the lack of an impartial examination of its complaint. According to the appellant, the General Court wrongly, and without justification, held the case-law on competition to be applicable by analogy to State aid procedures.

109. In any event, even if that case-law is applicable, the appellant emphasises that it provided indicia showing that the Commission was not interested in further investigation of the case or in obtaining more precise or further information.

110. The Commission submits that the fifth ground of appeal should be dismissed.
2.      Assessment

111. In paragraphs 207 to 213 of the judgment under appeal the General Court rejected the appellant’s argument that it became impossible for the Commission to carry out an impartial examination of its complaint because of a statement made by the spokesperson for the member of the Commission responsible for competition matters; according to that statement, the German authorities had followed guidance from that member of the Commission concerning the sale of the Nürburgring assets and those assets were being sold to the highest bidder after a lawful tender process and at the market price.

112. The General Court dismissed that plea, in essence, applying by analogy the case-law according to which, in cases of infringement of the competition rules, such an irregularity may lead to the annulment by the EU judicature of the decision contested before it only if it is established that, if that irregularity had not occurred, the content of the decision would have been different. The General Court found that the appellant had not adduced any evidence or any indicia to show that, had the statement at issue not been made, the content of the final decision would have been different.

113. The appellant disputes, first, that that case-law, developed in the field of competition, may be applied by analogy in the field of State aid. I would observe in that connection, however, that that case-law, concerning the legal consequences to be drawn from the improper disclosure of elements, even essential elements, of a decision that is to be adopted by the Commission, is generally applicable, and there is therefore no reason to confine its application solely to the field of competition. (35)

114. Moreover, that case-law reflects the application to a specific case of the generally applicable case-law according to which a procedural irregularity will, in principle, entail the annulment of a decision in whole or in part only if it is shown that, in the absence of such irregularity, the content of the decision being challenged might have been different, which has unquestionably been applied in the field of State aid. (36)

115. Secondly, as regards the matters which the appellant maintains it put to the General Court as indicia capable of establishing that, had the irregularity not occurred, the content of the second decision at issue would have been different, they are in no way capable of proving the alleged lack of impartiality on the Commission’s part. The matters in question comprise an exchange of electronic communications between the appellant’s lawyers and Commission officials, the alleged failure of those officials to respond to submissions made by the appellant in 2014 and in 2015, that is, after the adoption of the final decision, and the appellant’s allegedly being precluded from submitting further comments in accordance with Article 20(2) of Regulation No 659/1999, the alleged unlawfulness of which I have already rejected, in the context of the fourth ground of appeal. (37)

116. Indicia of that kind have, in my view, no connection with any alleged lack of impartiality on the Commission’s part and are incapable of establishing that, had the spokesperson for the member of the Commission responsible for competition matters not made the statement to which the appellant refers, the content of the second decision at issue would have been different. In so far as specifically concerns the General Court’s appraisal of the exchange of electronic communications, in accordance with the case-law I mentioned in point 35 of this Opinion, it cannot be called into question in an appeal without a plea of distortion of the sense of the evidence.

117. It follows from the foregoing that, in my view, the fifth ground of appeal should be dismissed.
E.      The sixth ground of appeal, alleging the inadequacy of the statement of reasons for the second decision at issue

1.      Arguments of the parties

118. By its sixth ground of appeal, the appellant takes issue with the part of the judgment under appeal (38) in which the General Court dismissed its plea at first instance alleging that the second decision at issue was vitiated by a failure to state reasons. The appellant submits that the General Court erred in law in its application of Article 296(2) TFEU. The appellant argues that, at first instance, it had provided examples illustrating four types of omission on the Commission’s part: failure to respond to certain essential complaints it had made; failure to provide clear and unequivocal reasons; failure to provide more detailed reasoning concerning changes in decision-making practice; and, lastly, failure to consider the relevant factual and legal background.

119. In so far as concerns the first of those claims at first instance, the appellant takes issue in particular with the General Court’s reasoning in paragraph 179 of the judgment under appeal, according to which the Commission had had only little time available to it, given the short duration of the preliminary-examination stage. According to the appellant, the Commission had already begun analysing the sale process in 2012, well before complaints were lodged. The General Court also disregarded its central criticism that the Commission had failed to draw its own conclusions and relied only on the statements of others.

120. As regards the other three claims and the arguments put forward, the General Court completely disregarded them.

121. The Commission maintains that the sixth ground of appeal should be dismissed.
2.      Assessment

122. According to settled case-law, the statement of reasons required under Article 296 TFEU for measures adopted by EU institutions must be appropriate to the measure at issue and must disclose clearly and unequivocally the reasoning followed by the institution which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent court to review its legality. The requirements to be satisfied by the statement of reasons depend on all the circumstances of each case, in particular, the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question of whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. (39)

123. As regards, more particularly, a Commission decision finding that no State aid as alleged by a complainant exists, it is clear from the case-law that the Commission must at least provide the complainant with an adequate explanation of the reasons for which the facts and points of law put forward in the complaint have failed to demonstrate the existence of State aid. The Commission is not required, however, to define its position on matters which are manifestly irrelevant or insignificant or plainly of secondary importance. (40)

124. The necessary correlation between the grounds relied on by the complainant and the statement of reasons for the Commission’s decision cannot mean that the Commission is obliged to reject each of the arguments put forward in support of those grounds. It is sufficient if it sets out the facts and the legal considerations of fundamental importance in the context of the decision. (41)

125. In addition, it must be borne in mind that the duty to state adequate reasons in decisions is an essential procedural requirement which must be distinguished from the question of whether the reasoning is well founded, which is concerned with the substantive legality of the measure at issue. The reasoning of a decision consists in a formal statement of the grounds on which that decision is based. If those grounds are vitiated by errors, the latter will vitiate the substantive legality of the decision, but not the statement of reasons in it, which may be adequate even though it sets out reasons which are incorrect, such that it may not be impossible for the General Court to exercise its power of judicial review. (42)

126. In the context of the present ground of appeal, the appellant takes issue, in the first place, with the General Court’s reference to the fact that the Commission had only a ‘short space of time’ in which to take a decision upon the conclusion of the preliminary-examination stage, because, in the appellant’s submission, the Commission had already begun analysing the sale process in question long before complaints were lodged. (43) However, I agree with the position expressed by the Commission on that point, which is that the appellant’s argument is, in any event, ineffective because it challenges a paragraph in the judgment set out by the General Court merely for the sake of completeness. The appellant’s argument is not, however, in itself capable of calling into question the General Court’s conclusion, in paragraphs 176 and 178 of the judgment under appeal, that the account given in recitals 266 to 281 of the final decision provided an adequate explanation of the reasons for the measure adopted and that the Commission did not, therefore, infringe its obligation to state reasons by failing to reply to certain claims because it did not deem them to be of fundamental importance in the context of the decision.

127. In the second place, the appellant submits that the General Court ignored its central criticism that the Commission failed to draw its own conclusions and had relied only on the statements of others. Leaving aside the fact that that argument is raised before the Court of Justice in a very general and abstract fashion, making it difficult to identify precisely what error is imputed to the General Court, I would observe that, in any event, in general, the adoption of statements made by others in the reasoning underlying a decision does not in itself mean that the statement of reasons is inadequate or defective. Consequently, that argument too, in addition to probably being inadmissible, is also ineffective.

128. In the third place, the appellant criticises the General Court for failing to respond to certain claims it put forward at first instance.

129. To the extent that the appellant seeks by that argument to allege a failure to state reasons for the judgment under appeal, it should also be rejected, in my view. Indeed, paragraphs 175 to 180 of the judgment under appeal explain clearly and unequivocally the reasoning followed by the General Court in dismissing the appellant’s plea, which was that it considered that the account given in recitals 266 to 281 of the final decision provided an adequate explanation of the reasons for the measure adopted and that the Commission had set out the facts and legal considerations of fundamental importance in the context of the second decision at issue.

130. On the other hand, to the extent that the appellant seeks by that argument to allege that the General Court infringed Article 296(2) TFEU by not concluding that the final decision was vitiated by an inadequate statement of reasons, in that the Commission itself had altogether failed to consider certain matters – those raised at first instance in the second, third and fourth claims – that argument could only be upheld if those matters were to be regarded as facts or legal considerations of fundamental importance in the context of the decision. In such a case, in accordance with the case-law mentioned in points 123 and 124 above, the Commission would have been required to consider them.

131. However, first of all, the appellant in no way explains why the matters raised at first instance in the second, third and fourth claims should be deemed to be facts or legal considerations of fundamental importance in the context of the decision, which the Commission ought necessarily to have considered. Secondly, the arguments raised in those claims tend, in substance, to dispute that the reasoning is well founded, which goes to the substantive legality of the decision, rather than to the statement of reasons for the decision. Although the General Court may, on certain conditions, express the arguments raised by a party in different terms and as supporting a different plea, (44) I am not convinced that where an applicant has put forward arguments in support of a plea of infringement of the obligation to state reasons, it is possible to criticise the General Court for erring in law by not expressing that argument in different terms and as relating to the question of whether the reasoning is well founded, which, as is clear from the case-law mentioned in point 125 above, is a separate question.

132. It follows from the foregoing that, in my view, the third argument raised in the context of the sixth ground of appeal should also be rejected and, consequently, the sixth ground of appeal dismissed in its entirety.
V.      Conclusion

133. On the basis of all the foregoing considerations, I propose that the Court should:
–        uphold the second, third and fourth parts of the second ground of appeal raised by NeXovation, Inc.; and
–        dismiss the first part of the second ground of appeal, as well as the third, fourth, fifth and sixth grounds of appeal.

1      Original language: Italian.

2      OJ 2016 L 34, p. 1.

3      See Article 2 and Article 3(2), respectively, of the final decision.

4      See the final indent of Article 1 of the final decision.

5      See paragraph 57 of the judgment under appeal.

6      See paragraph 75 of the judgment under appeal.

7      See paragraphs 214 and 216 of the judgment under appeal.

8      Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1). That regulation has now been repealed and replaced by Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU] (OJ 2015 L 248, p. 9).

9      See paragraph 67 of the judgment under appeal.

10      See Article 4(2) of Regulation No 659/1999.

11      See, on that point, judgments of 24 May 2011, Commission v Kronoply and Kronotex (C‑83/09 P, EU:C:2011:341, paragraph 59), and, most recently, of 3 September 2020, Vereniging tot Behoud van Natuurmonumenten in Nederland and Others v Commission (C‑817/18 P, EU:C:2020:637, paragraph 81 and the case-law cited).

12      Commission Notice on the notion of State aid as referred to in Article 107(1) [TFEU] (OJ 2016 C 262, p. 1).

13      See, inter alia, judgment of 5 September 2019, European Union v Guardian Europe and Guardian Europe v European Union (C‑447/17 P and C‑479/17 P, EU:C:2019:672, paragraph 137 and the case-law cited).

14      See, on that point, inter alia, judgment of 3 September 2020, Vereniging tot Behoud van Natuurmonumenten in Nederland and Others v Commission (C‑817/18 P, EU:C:2020:637, paragraph 116).

15      See, inter alia, judgments of 11 June 2015, EMA v Commission (C‑100/14 P, not published, EU:C:2015:382, paragraph 67 and the case-law cited), and of 26 May 2016, Rose Vision v Commission (C‑224/15 P, EU:C:2016:358, paragraph 24).

16      See judgments of 11 May 2017, Dyson v Commission (C‑44/16 P, EU:C:2017:357, paragraph 37 and the case-law cited), and of 16 November 2017, Ludwig-Bölkow-Systemtechnik v Commission (C‑250/16 P, EU:C:2017:871, paragraph 55).

17      See, inter alia, judgments of 26 May 2016, Rose Vision v Commission (C‑224/15 P, EU:C:2016:358, paragraph 26 and the case-law cited), and, most recently, of 11 June 2020, China Construction Bank v EUIPO (C‑115/19 P, EU:C:2020:469, paragraph 67 and the case-law cited).

18      See judgment of 11 May 2017, Dyson v Commission (C‑44/16 P, EU:C:2017:357, paragraph 37 and the case-law cited), and order of 13 December 2012, Alliance One International v Commission (C‑593/11 P, not published, EU:C:2012:804, paragraph 27).

19      See, inter alia, judgments of 26 May 2016, Rose Vision v Commission (C‑224/15 P, EU:C:2016:358, paragraph 25 and the case-law cited), and of 11 May 2017, Dyson v Commission (C‑44/16 P, EU:C:2017:357, paragraph 38 and the case-law cited).

20      See, to that effect, judgment of 6 November 2012, Éditions Odile Jacob v Commission (C‑551/10 P, EU:C:2012:681, paragraph 48 and the case-law cited).

21      See also, to that effect, the Opinion of Advocate General Kokott in Bayer CropScience and Bayer v Commission (C‑499/18 P, EU:C:2020:735, point 89).

22      See, in particular, recital 275(c) of the final decision.

23      See the case-law cited in points 35 and 37 of this Opinion.

24      See paragraphs 185 and 190 of the judgment under appeal.

25      Council Regulation (EU) No 734/2013 of 22 July 2013 amending Regulation No 659/1999 (OJ 2013 L 204, p. 15).

26      In the new regulation, Regulation (EU) 2015/1589, which, as I mentioned in footnote 8 to this Opinion, replaced Regulation No 659/1999, the provision in question remains substantially the same and is now in the second subparagraph of Article 24(2).

27      See, inter alia, most recently, judgment of 11 November 2020, EUIPO v John Mills (C‑809/18 P, EU:C:2020:902, paragraph 55 and the case-law cited).

28      See the proposal for a Council regulation amending Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty, of 5 December 2012, COM(2012) 725 final.

29      See Section 2.1., p. 4, of the explanatory memorandum to the proposal for a regulation mentioned in footnote 28.

30      See Section 2.1., p. 5, of the explanatory memorandum to the proposal for a regulation mentioned in footnote 28. To the same effect, see also paragraphs 70 and 72 of the 2018 version of the Code of Best Practices for the conduct of State aid control procedures (OJ 2018 C 253, p. 14).

31      OJ 2009 C 136, p. 13. This code has been replaced by the new version of the code mentioned in footnote 30. See paragraphs 70 and 72 of the new version.

32      See Section 2.1., p. 4, of the explanatory memorandum to the proposal for a regulation mentioned in footnote 28.

33      See judgments of 12 July 1973, Commission v Germany (70/72, EU:C:1973:87, paragraph 19); of 2 April 1998, Commission v Sytraval and Brink’s France (C‑367/95 P, EU:C:1998:154, paragraph 59); and of 24 September 2002, Falck and Acciaierie di Bolzano v Commission (C‑74/00 P and C‑75/00 P, EU:C:2002:524, paragraphs 80 to 83). See also, more recently, Opinion of Advocate General Tanchev in Commission v Gmina Miasto Gdynia and Port Lotniczy Gdynia Kosakowo (C‑56/18 P, EU:C:2019:569, point 24), and the related judgment of 11 March 2020, Commission v Gmina Miasto Gdynia and Port Lotniczy Gdynia Kosakowo (C‑56/18 P, EU:C:2020:192, paragraphs 71 and 74).

34      See judgment of 11 March 2020, Commission v Gmina Miasto Gdynia and Port Lotniczy Gdynia Kosakowo (C‑56/18 P, EU:C:2020:192, paragraphs 71 and 74), and Opinion of Advocate General Tanchev in Commission v Gmina Miasto Gdynia and Port Lotniczy Gdynia Kosakowo (C‑56/18 P, EU:C:2019:569, points 26 and 27 and the case-law cited).

35      Concerning that principle, see also judgment of 18 September 2003, Volkswagen v Commission (C‑338/00 P, EU:C:2003:473 paragraphs 164 and 165).

36      See, inter alia, most recently, judgment of 11 March 2020, Commission v Gmina Miasto Gdynia and Port Lotniczy Gdynia Kosakowo (C‑56/18 P, EU:C:2020:192, paragraph 80).

37      See points 92 to 107 of this Opinion.

38      Paragraphs 175 to 180 of the judgment under appeal.

39      See, inter alia, with regard to State aid, judgments of 1 July 2008, Chronopost v UFEX and Others (C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraph 88 and the case-law cited), and, most recently, of 4 June 2020, Hungary v Commission (C‑456/18 P, EU:C:2020:421, paragraph 57 and the case-law cited).

40      See, inter alia, with regard to State aid, judgment of 1 July 2008, Chronopost v UFEX and Others (C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraph 89 and the case-law cited).

41      See, inter alia, with regard to State aid, judgment of 1 July 2008, Chronopost v UFEX and Others (C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraph 96 and the case-law cited).

42      See judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala (C‑413/06 P, EU:C:2008:392, paragraph 181 and the case-law cited).

43      The appellant refers to paragraph 178 of the judgment under appeal, but its argument seems to relate instead to paragraph 179 thereof.

44      As to the possibility of expressing an applicant’s arguments in different terms, see judgments of 19 November 1998, Parliament v Gaspari (C‑316/97 P, EU:C:1998:558, paragraph 21), and of 1 July 2008, Chronopost v UFEX and Others (C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraph 75).