CELEX: 62009TJ0123
Language: en
Date: 2012-03-28 00:00:00
Title: Judgment of the General Court (Fifth Chamber) of 28 March 2012. # Ryanair Ltd v European Commission. # State aid - Loan granted to an airline company and capable of being counted as own capital - Decision declaring the aid incompatible with the common market - Sale of assets of an airline company - Decision finding no aid at the conclusion of the preliminary examination phase - Actions for annulment - Locus standi - Interested party - Admissibility - Serious difficulties - Jurisdiction - Duty to state reasons. # Case T-123/09.

Reports of Cases
                              JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
                                                 28 March 2012 *
      (State aid — Loan granted to an airline company and capable of being counted as own capital —
       Decision declaring the aid incompatible with the common market — Sale of assets of an airline
       company — Decision finding no aid at the conclusion of the preliminary examination phase —
     Actions for annulment — Locus standi — Interested party — Admissibility — Serious difficulties —
                                      Jurisdiction — Duty to state reasons)
   In Case T-123/09,
   Ryanair Ltd, established in Dublin (Ireland), represented by E. Vahida and I.-G. Metaxas-Maragkidis,
   lawyers,
                                                                                              applicant,
   v
   European Commission, represented by L. Flynn, D. Grespan and E. Righini, acting as Agents,
                                                                                             defendant,
   supported by
   Italian Republic, represented by G. Palmieri and P. Gentili, avvocati dello Stato,
   and by
   Alitalia – Compagnia Aerea Italiana SpA, established in Fiumicino (Italy), represented by
   G. M. Roberti, G. Bellitti and I. Perego, lawyers,
                                                                                            interveners,
   APPLICATION for partial annulment of Commission Decision 2009/155/EC of 12 November 2008 on
   the loan of EUR 300 million granted by Italy to Alitalia No C 26/08 (ex NN 31/08) (OJ 2009 L 52,
   p. 3), and application for annulment of Decision C(2008) 6745 final, of 12 November 2008,
   concerning State aid N 510/2008 — Italy — Sale of assets of the airline Alitalia,
                                    THE GENERAL COURT (Fifth Chamber),
   composed of S. Papasavvas (Rapporteur), President, V. Vadapalas and K. O’Higgins, Judges,
   Registrar: N. Rosner, Administrator,
   having regard to the written procedure and further to the hearing on 30 June 2011,
   gives the following
   * Language of the case: English.
EN
         ECLI:EU:T:2012:164                                                                           1
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                                             RYANAIR v COMMISSION
                                                  Judgment
  Background to the dispute
1 Alitalia S.p. A is an air transport company in which the Italian State holds a 49.9% stake.
2 In December 2006, following several failed attempts to redress Alitalia’s financial situation and to form
  international alliances, the Italian authorities decided to sell their stake in Alitalia’s capital. On
  29 December 2006, the Italian Ministry of the Economy and Finance published a call for declarations
  of interest. That procedure was, however, closed on 18 July 2007, since the bids submitted were
  withdrawn.
3 In September 2007, Alitalia appointed a bank as a financial adviser to identify potential partners for
  Alitalia. Amongst the bids received, the bid submitted by Air France-KLM was regarded by Alitalia’s
  board as the most appropriate. However, since it was unable to reach an agreement with the trade
  unions, Air France-KLM withdrew its bid on 21 April 2008.
4 At a meeting on 23 April 2008, the Italian authorities informed the Commission of the European
  Communities that the Italian Council of Ministers had approved, through ‘Decreto-legge No 80,
  Misure urgenti per assicurare il pubblico servizio di transporto aereo’ (Decree-Law No 80, Urgent
  measures to ensure the public service of air transport) (GURI No 97 of 24 April 2008, ‘Decree-Law
  No 80’), adopted on that date, the granting of a loan of EUR 300 million to Alitalia.
  A – Administrative procedure
5 Having received no notification prior to the granting by the Italian Republic of a loan of
  EUR 300 million to Alitalia, the Commission requested the Italian authorities, by letter of 24 April
  2008 and pursuant to Article 11(1) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying
  down detailed rules for the application of Article [88] EC (OJ 1999 L 83, p. 1), to confirm the existence
  of the loan, supply all useful information enabling such a measure to be assessed in relation to
  Articles 87 EC and 88 EC, to suspend the granting of the loan and to inform the Commission of the
  measures taken to comply with that obligation under Article 88(2) EC.
6 On 29 April 2008, the applicant, Ryanair Ltd., lodged a complaint with the Commission under
  Article 20(2) of Regulation No 659/1999, concerning the existence of State aid for Alitalia in the form
  of a loan granted by the Italian authorities to the latter.
7 By letter of 20 May 2008, the Commission replied to the applicant’s complaint, informing the applicant
  that it had requested, by letter of 24 April 2008, information from the Italian authorities and that the
  Commission would conduct an investigation on the basis of that information and information
  provided by the applicant in its complaint.
8 By letter of 30 May 2008 the Italian authorities informed the Commission of the adoption, on 27 May
  2008, of Decreto-legge No 93, Disposizioni urgenti per salvaguardare il potere di acquisto delle famiglie
  (Decree-Law No 93, Urgent provisions to safeguard the purchasing power of households) (GURI
  No 124 of 28 May 2008, ‘Decree-Law No 93’), which gave Alitalia the option of counting the value of
  the loan as part of its own capital. On the same date, the applicant referred a new complaint to the
  Commission concerning the conversion of the loan of EUR 300 millions granted by the Italian
  authorities to Alitalia into own capital.
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9  On 3 June 2008, the Italian authorities took further steps with a view to finding one or more buyers for
   Alitalia through Decreto-legge No 97, Disposizioni urgenti in materia di monitoraggio e trasparenza
   dei meccanismi di allocazione della spesa pubblica, nonché in materia fiscale e di proroga di termini
   (Decree-Law No 97, Urgent measures on the monitoring and transparency of mechanisms for
   allocating public spending and on taxation and the extension of time-limits) (GURI No 128 of 3 June
   2008, p. 5, ‘Decree-Law No 97’). This involved selecting one or more qualified companies which
   would be responsible for promoting, on an exclusive basis and on behalf of third parties or
   themselves, the presentation of a bid to assume control of Alitalia. At the conclusion of the selection
   procedure in question, the Italian Council of Ministers selected a bank for that purpose.
   B – Decision to open the formal investigation procedure under Article 88(2) EC
10 By letter of 12 June 2008, the Commission notified the Italian authorities of its decision of 11 June
   2008 to initiate a formal investigation procedure pursuant to Article 88(2) EC in connection with the
   loan granted to Alitalia through Decree-Law No 80 and Alitalia’s option of counting the value of the
   loan as part of its own capital provided for by Decree-Law No 93. On the same date, it replied to the
   applicant’s second complaint, informing it of the adoption of the decision to initiate the above formal
   investigation procedure and inviting it to submit comments.
11 On 18 August 2008 the applicant submitted its comments on the decision to open the formal
   investigation procedure.
12 By adopting Decreto-legge No 134, Disposizioni urgenti in materia di ristrutturazione di grandi
   imprese in crisi (Decree-Law No 134, Urgent measures for the restructuring of large undertakings in
   crisis) (GURI No 201 of 28 August 2008, p. 3, ‘Decree-Law No 134’), certain amendments were made
   to the extraordinary administration procedure for particularly large undertakings active in the essential
   public services sector.
13 By derogation from decreto legislativo n° 270, Nuova disciplina dell’amministrazione straordinaria
   delle grandi imprese in stato di insolvenza, a norma dell’articolo 1 della legge 30 luglio 1998, n° 274
   (Legislative Decree No 270, New rules on the extraordinary administration of large undertakings in a
   state of insolvency, pursuant to Article 1 of the Law of 30 July 1998, No 274) (GURI No 185 of
   9 August 1999, p. 11; ‘Legislative Decree No 270’), which applies to undertakings in difficulty in
   Italy, dispensation was granted to allow the immediate admission of undertakings in the essential
   public services sector to the extraordinary administration procedure, before they were declared
   insolvent. Further provision was made to allow the option for the financial situation of those
   undertakings to be redressed by the disposal of their assets by a private contract procedure to
   acquirers able to guarantee continuity of service in the medium term, rapid intervention and
   compliance with the requirements of Italian legislation and treaties ratified by the Italian Republic.
   However, that possibility was coupled with the requirement that an independent expert appointed
   by the Italian Ministry of Economic Development verify that the assets are sold at a price which is
   in line with the market price.
14 On 29 August 2008, Alitalia requested the Tribunale di Roma (District Court, Rome) to declare that it
   was in a situation of insolvency. It was placed under extraordinary administration by decree of the
   Italian Prime Minister of the same date.
15 On 1 September 2008, Compagnia Aerea Italiana SpA (‘CAI’) submitted a preliminary bid for the
   acquisition of certain assets of companies in the group of which Alitalia formed part (‘the
   Alitalia group’), subject to the agreement of the trade unions to the recruitment of former staff
   members of that group under new working conditions.
   ECLI:EU:T:2012:164                                                                                      3
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                                                 RYANAIR v COMMISSION
16 By Ministerial Decree of 4 September 2008 and in accordance with Article 1(4)(c) of Decree-Law
   No 134, a bank was appointed as independent expert, responsible for verifying that the assets would
   be sold at a price which was in line with the market price. On the same date, a monitoring committee
   was set up, with the purpose, in particular, of agreeing to the sales of assets proposed by the
   extraordinary administrator.
17 On 14 September 2008, CAI withdrew its preliminary bid, following the failure of negotiations with the
   trade unions.
18 On 15 September 2008, the extraordinary administration procedure was extended to the whole of the
   Alitalia group.
19 On 22 September 2008, the extraordinary administrator issued a call for declarations of interest for the
   purchase of all the assets of the Alitalia group, which was published the following day in the national
   and international press. In that call for declarations of interest, he indicated his intention to proceed
   to the sale of those assets in accordance with a private contract procedure. Potential buyers were
   invited to declare their interest to him before 30 September 2008.
20 On 25 September 2008, CAI reiterated its provisional bid on the same conditions as the bid submitted
   on 1 September (see paragraph 15 above), stating that that bid was valid until 15 October 2008, that
   deadline being subsequently extended until 31 October 2008.
21 On 2 October 2008, the applicant lodged a third complaint with the Commission concerning the
   adoption of Decree-Law No 134 and other measures relating to the sale of the assets of the Alitalia
   group.
22 By letter of 14 October 2008, the Italian authorities notified the Commission of the procedure for the
   sale of Alitalia’s assets, asking it to confirm, for reasons of legal certainty, that:
   — the extraordinary administration procedure described in the notification did not involve the grant
       of State aid to the buyers of the assets transferred;
   — the potential acquisition by third parties of certain assets of [the] Alitalia [group], on the basis of a
       bid already formulated, did not involve any elements of economic continuity with the undertaking
       placed under extraordinary administration capable of resulting in the transfer of Alitalia’s liabilities
       to the buyer and, in particular, the requirement to recover unlawful and incompatible State aid
       granted to Alitalia.
23 At the same time as that notification and in addition to the applicants’ third complaint (see
   paragraph 21 above), the Commission received three complaints lodged by other airlines and the
   European Low Fares Airline Association (ELFAA).
24 On 27 October 2008, Decree-Law No 134 was converted into Law No 166, Conversione in legge, con
   modificazioni, del decreto-legge 28 agosto 2008, n°134, recante disposizioni urgenti in materia di
   ristrutturazione di grandi imprese in crisi (Law No 166, converting into law, with amendments,
   Decree-Law No 134) (GURI No 252, 27 October 2008, p. 4).
25 By letter of 30 October 2008, the applicant lodged an additional complaint with the Commission,
   denouncing certain measures which it described as worrying, namely, in particular, increase of the
   municipal boarding fee per passenger at Italian airports to EUR 3, with the sole aim, in its submission,
   of financing severance payments to former Alitalia employees, and an alleged conflict of interest
   revealed by the press between certain CAI shareholders and certain shareholders of the independent
   expert, which were said to be identical.
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                                              RYANAIR v COMMISSION
26 On 31 October 2008, CAI submitted to the extraordinary administrator a binding bid for the purchase
   of certain assets relating to Alitalia’s air passenger transport business. That bid was sent to the
   Commission by the Italian authorities on 3 November 2008.
   C – Contested decisions
   1. Decision concerning the loan granted to Alitalia
27 By Commission Decision 2009/155/EC of 12 November 2008 on the loan of EUR 300 million granted
   by Italy to Alitalia No C 26/08 (ex NN 31/08) (OJ 2009 L 52, p. 3; ‘the first contested decision’),
   adopted at the conclusion of the formal investigation procedure under Article 88(2) EC, the
   Commission stated that the said loan, the amount of which could be counted as Alitalia’s own capital,
   constituted unlawful State aid incompatible with the common market, and ordered its recovery from
   the beneficiary. A copy of that decision was notified to the applicant on 14 January 2009 and received
   by it on 20 January 2009.
28 The Commission first of all pointed out that the loan of EUR 300 million granted to Alitalia by the
   Italian State was such as to confer on it an economic advantage through State resources, which, given
   its severely compromised financial situation, both on the date on which the loan was granted through
   Decree-Law No 80 and on the date of the adoption of Decree-Law No 93, would not have been
   granted by a prudent private investor. It also stated that the interest rate granted, the almost
   simultaneous occurrence of the withdrawal of Air France-KLM’s bid with the granting of the loan,
   and the absence of other recovery prospects and of financial intervention from Alitalia’s private
   shareholders alongside that of the Italian State were such as to reinforce that conclusion. It inferred
   from this that the Italian State had not acted as a prudent shareholder pursuing a structural policy,
   whether general or sectoral, guided by longer-term prospects of profitability of the capital invested
   than those of an ordinary investor.
29 The Commission therefore concluded that the loan granted by the Italian Republic to Alitalia, the
   EUR 300 million value of which could be counted as part of its own capital, constituted unlawful aid,
   which had not been notified in advance and which was incompatible with the common market. It also
   found that that measure did not fall within the derogations provided for in Article 87(2) and (3) EC, or
   those provided for in the Commission’s guidelines on the application of Articles [87] and [88] EC and
   Article 61 of the EEA Agreement to State aid in the aviation sector (OJ 1994 C 350, p. 5), as
   supplemented by the Communication from the Commission on the Community guidelines on
   financing of airports and start-up State aid to airlines departing from regional airports (OJ 2005
   C 312, p. 1).
30 Lastly, the Commission considered that, although Alitalia might be classified as an undertaking in
   difficulty, the measure at issue could not be declared compatible with the common market under the
   Community guidelines on State aid for rescuing and restructuring firms in difficulty (OJ 2004 C 244,
   p. 2). Consequently, the Italian authorities had to take all necessary measures to recover that aid from
   the beneficiary, Alitalia.
31 The operative part of the first contested decision reads as follows:
   ‘Article 1
   The EUR 300 million loan granted to Alitalia and capable of being counted as part of its capital, which
   was implemented by Italy contrary to Article 88(3) [EC], is incompatible with the common market.
   ECLI:EU:T:2012:164                                                                                     5
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                                               RYANAIR v COMMISSION
   Article 2
   [The Italian Republic] shall recover the aid referred to in Article 1 from the beneficiary.
   The sums to be recovered shall bear interest from the date on which they were made available to the
   recipient until the date of their actual recovery.
   ….
   Article 3
   1. Recovery of the aid referred to in Article 1 shall be immediate and effective.
   2. [The Italian Republic] shall ensure that this Decision is implemented within four months of the date
   of its notification.
   Article 4
   1. Within two months of the notification of this Decision, Italy shall submit the following information
   to the Commission:
   a)    the total amount (principal and interest) to be recovered from the recipient;
   b)    a detailed description of the measures already taken and planned to comply with this Decision;
   c)    documents demonstrating that the beneficiary has been ordered to repay the aid.
   2. [The Italian Republic] shall keep the Commission informed of the progress of the national measures
   adopted pursuant to this Decision until the recovery of the aid specified in Article 1 has been
   concluded. At the Commission’s request, it shall immediately submit information on the measures
   already adopted and planned for the purpose of complying with this Decision. It shall also provide
   detailed information concerning the amount of aid and interest already recovered from the
   beneficiary.
   …’
   2. Decision concerning the sale of Alitalia assets
32 By Decision C(2008) 6745 final, of 12 November 2008, concerning State aid N 510/2008 — Italy —
   Sale of assets of the airline Alitalia (‘the second contested decision’), adopted at the conclusion of a
   preliminary examination phase, pursuant to Article 88(3) EC, the Commission stated that the notified
   measure, as amended by the undertakings given by the Italian authorities and defined in that decision,
   did not involve the granting of State aid to the buyers, subject to full compliance with those
   undertakings by the Italian Republic, according to which the sale of the assets of the Alitalia group
   would be carried out at the market price.
33 In the first place, the Commission has, first, recalled, in paragraphs 21 to 43 of the second contested
   decision, the legal context of the extraordinary administration procedure to which the Alitalia group
   has been subjected and the role of the various participants involved in the latter. Next, in
   paragraphs 44 to 75 of the said decision, it has analysed the procedure for the sale of assets, taking
   into account, firstly, the market information of the various stages of the sale and the call for
   declarations of interest (paragraphs 44 to 52); secondly, the bids received for the acquisition of the
   assets of the Alitalia group and, in particular, that submitted by CAI (paragraphs 53 to 69); thirdly,
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                                              RYANAIR v COMMISSION
   the criteria used for the assessment of bids, and, in particular, the undertaking given by the Italian
   authorities that the main criterion would be conformity of the bid price with the market price
   (paragraphs 70 to 72); and, fourthly, the aspects concerning human resources (paragraphs 73
   and 74). In addition, the Commission examined the mission and role of the agent entrusted with
   monitoring the operation for the sale of Alitalia group assets. The latter was to be appointed by the
   Italian authorities in order to ensure that the procedure notified by the latter was fully and effectively
   applied and that the sale of assets took place at the market price, in accordance with the
   undertakings given by the Italian Republic. In that respect, he was to submit exhaustive reports to
   the Commission (paragraphs 76 to 89).
34 In the second place, the Commission proceeded, in paragraphs 92 to 151 of the second contested
   decision, to assess the measure concerning the sale of assets. Its assessment concerned, first,
   examination of the existence of State aid in favour of the buyers of the assets of the Alitalia group
   (paragraphs 92 to 127) and, second, the risk of circumvention of the obligation to recover an unlawful
   and incompatible aid (paragraphs 128 to 151).
35 In the first part of its assessment, the Commission confirmed that the extraordinary examination
   procedure did not lead to the granting of aid in favour of the buyers. Having pointed out, in
   paragraph 104 of the second contested decision, at the conclusion of the examination as to the
   openness, transparency and non-discriminatory nature of the notified procedure, that the latter
   was not sufficiently transparent to guarantee in itself a market price, it nevertheless concluded, in
   paragraph 117 of the said decision, that such a procedure would lead to a sale at market price,
   where that procedure was based on an independent assessment by independent parties. It further
   held, in paragraphs 119, 122 and 126 of that decision that the said procedure did not lead to the
   imposition of obligations of the public authority on the buyers of assets of the Alitalia group
   likely to call into question the objective of sale at the market price, either as regards human
   resources or the conditions for operating the air transport business. It thus concluded, at
   paragraph 127 of the same decision, that, subject to strict application of the undertakings by the
   Italian authorities, the measure notified should lead to sale of the assets of the Alitalia group at
   the market price.
36 In the second part of its examination, the Commission concluded, in paragraph 137 of the second
   contested decision, that, given the scope of the sale of assets and the parcelling of the bids
   submitted by potential buyers, the procedure implemented by the Italian Republic entailed no
   economic continuity between Alitalia and the buyers of its assets. However, it considered, in
   paragraph 138 of the said decision, that, with regard to the bid submitted by CAI, the risk of
   economic continuity justified a more in-depth examination, given the wide range of assets to which
   the bid related. Since the shareholders of CAI and Alitalia were not the same, the scope and extent
   of CAI’s activities were smaller than those of Alitalia, CAI pursued its own industrial strategy, and
   given the condition that the transfer was to be at market price, all of which factors being set out in
   paragraphs 140 to 145 of that decision, the Commission concluded, in paragraphs 147 and 149 of
   the same decision that there was no economic continuity between Alitalia and CAI. It therefore
   found that, in paragraphs 151 to 156 of the decision in question, that, subject to full compliance
   with the undertakings given by the Italian Republic that the sale would be made at the market
   price, the notified procedure had the effect neither of circumventing the Italian Republic’s
   obligation to recover under the first contested decision, nor of granting State aid to Alitalia’s
   buyers.
37 Therefore, the Commission decided that the notified measure, as amended by the undertakings given
   by the Italian authorities, did not constitute aid, to the extent that those undertakings were complied
   with in full.
   ECLI:EU:T:2012:164                                                                                       7
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                                               RYANAIR v COMMISSION
   Procedure
38 By application lodged at the Registry of the General Court on 28 March 2009, the applicant brought
   the present action.
39 By documents lodged at the Registry of the General Court on 23 July and 7 August 2009 respectively,
   the Italian Republic and Alitalia — Compagnia Aerea Italiana (‘Alitalia-CAI’) sought leave to intervene
   in support of forms of order sought by the Commission.
40 By orders of 16 September and 19 October 2009, the President of the Eighth Chamber of the General
   Court granted the Italian Republic and Alitalia-CAI leave to intervene.
41 By document of 11 August 2010, Alitalia-CAI requested authorisation to use Italian during the oral
   procedure, in accordance with Article 35(2)(c) of the Rules of Procedure of the General Court, which
   authorisation was granted.
42 After a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to
   the Fifth Chamber, to which the present case was, consequently, assigned.
43 Upon hearing the Report of the Judge-Rapporteur, the General Court decided to open the oral
   procedure and to put certain questions to the parties.
44 By order of the President of the Fifth Chamber of the General Court of 13 April 2011, the parties
   having been heard, the procedure was stayed under Article 77(a) of the Rules of Procedure until
   delivery of the judgment of the Court of Justice in Case C-83/09 P Commission v Kronoply and
   Kronotex.
45 By document of 19 April 2011, the applicant applied for measures of organisation of procedure under
   Articles 49 and 64 of the Rules of Procedure, that the Commission be ordered to produce certain
   documents.
46 The judgment of the Court of Justice in Case C-83/09 P Commission v Kronoply and Kronotex [2011]
   ECR I-4441 having been delivered on 24 May 2011, the procedure in the present case was resumed.
   The General Court decided to gather the observations of the parties on the consequences to be drawn
   from that judgment for the admissibility of the present action, at the hearing.
47 By documents lodged at the Registry of the General Court on 5 and 6 June 2011 respectively,
   Alitalia-CAI and the Commission lodged observations on the application for measures of organisation
   of procedure by the applicant.
48 The parties presented oral argument and gave their replies to the questions asked by the Court at the
   hearing on 30 June 2011.
   Forms of order sought
49 The applicant claims that the Court should:
   — partially annul the first contested decision, in so far as it does not order recovery of the aid from
       successors of Alitalia and grants the Italian Republic additional time to implement that decision;
   — annul the second contested decision;
   — order the Commission to pay the costs.
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                                                  RYANAIR v COMMISSION
50 The Commission contends that the Court should:
   — dismiss the appeal as partially inadmissible and partially unfounded;
   — order the applicant to pay the costs.
51 Alitalia-CAI claims that the Court should:
   — dismiss the action as partially inadmissible and partially unfounded;
   — order the applicant to pay the costs.
52 The Italian Republic claims that the Court should:
   — dismiss the application as inadmissible, or alternatively as unfounded;
   — order the applicant to pay the costs.
   Law
   D– The application for annulment of the second contested decision
   1. Admissibility
53 The applicant submits that it is a party concerned within the meaning of Article 88(2) EC and that it has
   standing to bring an action for annulment of that decision because, as a competitor of Alitalia and of CAI,
   its interests were affected by the grant of the loan and the transfer of Alitalia’s assets to CAI. It states,
   moreover, that, by its action, it is seeking to safeguard its procedural rights, bearing in mind the fact that
   annulment of the second contested decision would have the effect of opening the formal investigation
   procedure. It states, finally, that its market position has been substantially affected by the said decision.
54 Without raising a formal objection of inadmissibility, the Commission, supported by Alitalia-CAI,
   argues that the action is admissible only in so far as the applicant is seeking, by bringing it, to
   safeguard its procedural rights, having regard to its capacity as complainant and competitor of the
   ‘companies involved in the process of selling the assets of [the] Alitalia [group]’. By contrast, in so far
   as the applicant calls into question the merits of the second contested decision, even if the applicant
   may be regarded as ‘concerned’ within the meaning of Article 88(2) EC, that cannot suffice for a
   declaration that the action is admissible, unless the applicant is shown to enjoy a particular status,
   with the result that its market position was substantially affected by the aid to which that decision
   relates, which has not been established in this case.
55 The Italian Republic considers that the action is inadmissible in its entirety, the applicant having failed
   to demonstrate that the second contested decision involves direct consequences for its competitive
   position.
56 As a preliminary observation, it should be noted that even if, according to the fourth paragraph of
   Article 40 of the Statute of the Court of Justice of the European Union, applicable to the General
   Court pursuant to Article 53 of that Statute, interveners do not have the capacity to raise pleas that
   do not support those raised by the party they are supporting, in the case of an application to strike
   out on public policy grounds the admissibility of the action must be examined by the Court of its own
   motion, pursuant to Article 113 of the Rules of Procedure (see, to that effect, Case C-313/90 CIRFS
   and Others v Commission [1993] ECR I-1125, paragraphs 21 to 24).
   ECLI:EU:T:2012:164                                                                                            9
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57 Under the fourth paragraph of Article 230 EC, a natural or legal person may institute proceedings
   against a decision addressed to another person only if the decision is of ‘direct and individual’ concern
   to them.
58 It should be recalled that, according to settled case-law, persons other than those to whom a decision
   is addressed may claim to be individually concerned within the meaning of the fourth paragraph of
   Article 230 EC only if that decision affects them by reason of certain attributes which are peculiar to
   them or by reason of circumstances in which they are differentiated from all other persons and by
   virtue of those factors distinguishes them individually just as in the case of the person addressed by
   such a decision (Case 25/62 Plaumann v Commission [1963] ECR 95, at 107; Case C-198/91 Cook v
   Commission [1993] ECR I-2487, paragraph 20; Case C-225/91 Matra v Commission [1993]
   ECR I-3203, paragraph 14).
59 It should be recalled at the outset that Article 4 of Regulation No 659/1999 provides for a preliminary
   examination phase for notified aid measures, the purpose of which is to enable the Commission to
   form a first opinion on the compatibility of the aid in question with the common market. At the
   conclusion of that phase, the Commission finds that that measure either does not constitute aid or
   falls within the scope of Article 87(1) EC. In the latter case, it may be that the measure does not raise
   doubts as to its compatibility with the common market; on the other hand, it is also possible that the
   measure may raise such doubts (Commission v Kronoply and Kronotex, paragraph 43).
60 If, following the preliminary examination, the Commission finds that, notwithstanding the fact that the
   measure notified falls within the scope of Article 87(1) EC, it does not raise any doubts as to its
   compatibility with the common market, the Commission is to adopt a decision not to raise objections
   under Article 4(3) of Regulation No 659/1999 (Commission v Kronoply and Kronotex, paragraph 44).
61 Where the Commission adopts a decision not to raise objections, it declares not only that the measure
   is compatible with the common market, but also — by implication — that it refuses to initiate the
   formal investigation procedure laid down in Article 88(2) EC and Article 6(1) of Regulation
   No 659/1999 (Commission v Kronoply and Kronotex, paragraph 45).
62 If the Commission finds, after the preliminary examination, that the notified measure raises doubts as
   to its compatibility with the common market, it is required to adopt, on the basis of Article 4(4) of
   Regulation No 659/1999, a decision to open the formal investigation procedure provided for under
   Article 88(2) EC and Article 6(1) of the said regulation. Under the latter provision, such a decision is
   to call upon the Member State concerned and upon other interested parties to submit comments
   within a prescribed period which must not as a rule exceed one month (Commission v Kronoply and
   Kronotex, paragraph 46).
63 The lawfulness of a decision not to raise objections, adopted under Article 4(3) of Regulation
   No 659/1999, depends on whether there are doubts as to the compatibility of the aid with the common
   market. Since such doubts must trigger the initiation of a formal investigation procedure in which the
   interested parties referred to in Article 1(h) of Regulation No 659/1999 can participate, it must be held
   that any interested party within the meaning of the latter provision is directly and individually
   concerned by such a decision. If the beneficiaries of the procedural guarantees provided for in
   Article 88(2) EC and Article 6(1) of Regulation No 659/1999 are to be able to ensure that those
   guarantees are respected, it must be possible for them to challenge before the European Union
   judicature the decision not to raise objections (see, to that effect, Commission v Kronoply and
   Krontex, paragraph 47).
64 Accordingly, the specific status of ‘interested party’ within the meaning of Article 1(h) of Regulation
   No 659/1999, in conjunction with the specific subject-matter of the action, is sufficient to distinguish
   individually, for the purposes of the fourth paragraph of Article 230 EC, the applicant contesting a
   decision not to raise objections (Commission v Kronoply and Kronotex, paragraph 48).
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65 Under Article 1(h) of Regulation No 659/1999, ‘interested party’ means inter alia any person,
   undertaking or association of undertakings whose interests might be affected by the granting of aid,
   that is to say, in particular competing undertakings of the beneficiary of that aid. In other words, it
   means an indeterminate group of addressees (Commission v Kronoply and Kronotex, paragraph 63, and
   case-law cited).
66 Where an applicant seeks the annulment of a decision not to raise objections, it essentially contests the
   fact that the Commission adopted the decision in relation to the aid at issue without initiating the
   formal investigation procedure, thereby infringing the applicant’s procedural rights. In order to have
   its action for annulment upheld, the applicant may invoke any plea to show that the assessment of the
   information and evidence which the Commission had at its disposal during the preliminary
   examination phase of the measure notified should have raised doubts as to the compatibility of that
   measure with the common market. The use of such arguments does nothing, however, to bring about
   a change in the subject-matter of the action or in the conditions for its admissibility (see, to that effect,
   Case C-319/07 3F v Commission [2009] ECR I-5963, paragraph 35). On the contrary, the existence of
   doubts concerning that compatibility is precisely the evidence which must be adduced in order to
   show that the Commission was required to initiate the formal investigation procedure under
   Article 88(2) EC and Article 6(1) of Regulation No 659/1999 (Commission v Kronoply and Kronotex,
   paragraph 59).
67 It is in the light of those considerations that it needs to be assessed whether the applicant has the
   capacity to bring an action for annulment against the second contested decision.
68 In this case, it should be noted that the second contested decision is a decision adopted at the
   conclusion of the preliminary examination phase, under Article 4(2) of Regulation No 659/1999,
   whereby the Commission held that the notified measure did not fall within the scope of Article 87(1)
   EC and did not therefore constitute aid. It must also be noted that, by that decision, the Commission
   impliedly refused to open the formal investigation procedure. Thus, in the light of the case-law cited in
   paragraphs 61 to 64 and 66 above, concerning a decision adopted on the basis of Article 4(3) of
   Regulation No 659/1999, whereby the Commission had decided not to raise objections, it must be
   held that any interested party must be regarded as being directly and individually concerned by a
   decision finding the absence of aid at the conclusion of the preliminary examination phase. Even if
   such a decision has been adopted on the basis of Article 4(2), the beneficiaries of the procedural
   guarantees provided for in Article 88(2) EC and Article 6(1) of Regulation No 659/1999 can secure
   compliance with them only if they have the possibility of challenging the decision finding the absence
   of aid at the conclusion of the preliminary examination phase. Moreover, as regards decisions leading
   to the formal investigation procedure not being opened, capacity to bring an action for annulment
   cannot depend on the legal basis on which those decisions were adopted.
69 It is therefore necessary to examine whether the applicant has established to a sufficient legal standard
   that it is, in this case, an interested party.
70 In that respect, the applicant indicates that it is present in 22 Italian airports and that its activities
   coincide with those of Alitalia-CAI on 29 ‘domestic or international routes’ such as Rome-Venice and
   Rome-Madrid. Moreover, despite the fact that it does not operate from the same airports, it argues that
   it offers flights to and from the same cities as Alitalia-CAI. It argues that, as a competitor of Alitalia
   and CAI, its interests are affected by the transfer of the assets of the Alitalia group to CAI, the
   transfer in question having allowed CAI to resume Alitalia’s passenger air transport business on
   extremely favourable conditions, with avoiding the withdrawal of Alitalia from the market.
71 Those factors are not disputed by the Commission and establish to a sufficient legal standard the
   existence of a competitive link with Alitalia on the Italian and international passenger air transport
   market.
   ECLI:EU:T:2012:164                                                                                        11
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72 Moreover, the argument of the interveners that, since the applicant is a low-cost airline, it would be
   difficult to envisage it finding itself in the singular position of resuming the links carried out by a
   traditional airline such as Alitalia, cannot call into question the fact that the parties are competitors
   on the Italian and international passenger air transport market. It is apparent from the case-law that,
   for the purposes of examining admissibility, it is sufficient to note that the applicant is a competitor
   of the beneficiary of the State aid complained of, in so far as those two undertakings directly or
   indirectly operate regular passenger air transport services to and from Italian airports, particularly
   regional airports (see, to that effect, Case T-395/04 Air One v Commission [2006] ECR II-1343,
   paragraph 38).
73 In the light of the above, it must be held that the applicant is an interested party as a competitor
   undertaking of the beneficiary of the alleged State aid — whether the beneficiary is Alitalia or CAI, as it
   alleges — whose interests may be affected by the granting of that aid. That particular capacity as a
   party concerned combined with the specific subject-matter of the action as described in paragraph 68
   above is sufficient to distinguish it, in accordance with the case-law cited in paragraph 64 above.
   Therefore, the present action in so far as it is directed against the second contested decision is
   admissible, without it being necessary to examine the applicant’s arguments that its competitive
   position was substantially affected by the measure notified.
   2. The purpose of review by the General Court
74 With regard to the purpose of the review which is to be carried out by the General Court, it is
   necessary to state that, when an applicant seeks to safeguard his procedural rights pursuant to
   Article 88(2) EC, he may rely on any of the grounds set out in the second paragraph of
   Article 230 EC, provided that they are directed at the annulment of the contested decision and, in any
   event, the initiation by the Commission of the procedure referred to in Article 88(2) EC. On the other
   hand, it is not for the General Court to rule at that stage of the Commission’s procedure for
   examination of aid on whether aid exists or whether it is compatible with the common market (Case
   T-388/03 Deutsche Post and DHL International v Commission [2009] ECR II-199, paragraph 66).
75 According to the case-law of the Court of Justice, State aid, as defined in the Treaty, is a legal concept
   which must be interpreted on the basis of objective factors. For that reason, the EU Courts must in
   principle, having regard both to the specific features of the case before them and to the technical or
   complex nature of the Commission’s assessments, carry out a comprehensive review as to whether a
   measure falls within the scope of Article 87(1) EC (Case C-487/06 P British Aggregates v Commission
   [2008] ECR I-10515, paragraph 111).
76 This is all the more true in view of the fact that, according to settled case-law, if the Commission is
   unable to conclude, following an initial examination in the context of the procedure under
   Article 88(3) EC, that the State measure in question either is not ‘aid ‘ within the meaning of
   Article 87(1) EC or, if classified as aid, is compatible with the Treaty, or where that procedure does
   not enable it to overcome all the difficulties involved in determining whether the aid is compatible
   with the common market, the Commission is under a duty to initiate the procedure under
   Article 88(2) EC, ‘without having any discretion in that regard’. That obligation is moreover expressly
   confirmed by the combined provisions of Articles 4(4) and 13(1) of Regulation No 659/1999 (British
   Aggregates v Commission, paragraph 113).
77 It must also be borne in mind that, according to the case-law, the notion of serious difficulties is an
   objective one. The existence of such difficulties must be sought both in the circumstances in which
   the contested measure was adopted and in its content, in an objective manner, comparing the
   grounds of the decision with the information available to the Commission when it took a decision on
   the compatibility of the disputed aid with the common market (Case T-73/98 Prayon-Rupel v
   Commission [2001] ECR II-867, paragraph 47; see, to that effect, Case T-49/93 SIDE v Commission
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   [1995] ECR II-2501, paragraph 60). The applicant bears the burden of proving the existence of serious
   difficulties and may discharge that burden of proof by reference to a body of consistent evidence,
   concerning, first, the circumstances and the length of the preliminary examination procedure and,
   secondly, the content of the contested decision (Case T-36/06 Bundesverband deutscher Banken v
   Commission [2010] ECR II-537, paragraph 127).
78 Although it has no discretion in relation to the decision to initiate the formal investigation procedure,
   where it finds that such difficulties exist, the Commission nevertheless enjoys a certain margin of
   discretion in identifying and evaluating the circumstances of the case in order to determine whether
   or not they present serious difficulties. In accordance with the objective of Article 88(3) EC and its
   duty of good administration, the Commission may, amongst other things, engage in talks with the
   notifying State or with third parties in an endeavour to overcome, during the preliminary procedure,
   any difficulties encountered (Prayon-Rupel v Commission, paragraph 45; Bundesverband deutscher
   Banken v Commission, paragraph 126). That power presupposes that the Commission may bring its
   position in line with the results of the dialogue it engaged in, without that alignment having to be
   interpreted, a priori, as establishing the existence of serious difficulties (Case T-95/03 Asociación de
   Estaciones de Servicio de Madrid and Federación Catalana de Estaciones de Servicio v Commission
   [2006] ECR II-4739, paragraph 139).
79 It is also apparent from the case-law that if the examination carried out by the Commission during the
   preliminary examination procedure is insufficient or incomplete, this constitutes evidence of the
   existence of serious difficulties (Case T-359/04 British Aggregates and Others v Commission [2010]
   ECR II-4227, paragraph 57, and case-law cited).
80 In this case, since the second contested decision was adopted without initiating the formal
   investigation stage, the Commission could adopt it legally only if the preliminary examination did not
   reveal serious difficulties. If such difficulties existed, the decision could be annulled on that ground
   alone, because of the failure to initiate the inter partes and detailed examination laid down in the EC
   Treaty, even if it had not been established that the Commission’s assessments as to substance were
   wrong in law or in fact (see, to that effect, British Aggregates and Others v Commission,
   paragraph 58).
81 It is therefore appropriate to examine all the applicants’ pleas for annulment of the second contested
   decision, in order to ascertain, in particular, whether they enable any serious difficulty to be
   identified which should have led the Commission to open the formal investigation procedure under
   Article 88(2) EC (see, to that effect, Case T 158/99 Thermenhotel Stoiser Franz and Others v
   Commission [2004] ECR II-1, paragraph 91, and in judgment of 20 September 2007 in Case
   T-375/03 Fachvereinigung Mineralfaserindustrie v Commission, not published in the ECR,
   paragraphs 67 and 77).
   3. Substance
82 The applicant raises seven pleas in law in support of its action seeking the annulment of the second
   contested decision.
83 The first plea alleges failure to open the formal investigation procedure under Article 88(2) EC, despite
   serious difficulties encountered by the Commission. It should further be noted that, in its first plea, the
   applicant cites ten errors allegedly vitiating the Commission’s examination. It argues that that list —
   which it describes as ‘non-exhaustive’ — of gaps or failures vitiating the second contested decision
   demonstrates that the extent and complexity of the examination carried out by the Commission
   justified the opening of a formal investigation procedure. In so far as those alleged errors or gaps
   relate to the other pleas raised in this action, it is appropriate to examine them in the context of the
   assessment relating to the latter.
   ECLI:EU:T:2012:164                                                                                       13
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                                              RYANAIR v COMMISSION
84 The second plea alleges that the Commission did not have the power to adopt a conditional decision
   that there was no aid after carrying out a simple preliminary examination. In this plea, the applicant
   also raises certain arguments which do not concern the power of the Commission to adopt the
   second contested decision, but which merit an assessment on the substance, namely the allegedly
   unrealistic character of the undertakings assumed by the Italian Republic according to which the sale
   of Alitalia group assets would be carried out at the market price.
85 The third plea, divided into two parts, claims manifest error of assessment in that the Commission
   allegedly failed to examine all the relevant characteristics of the contested measures in their context,
   and an infringement of the duty to state reasons by the Commission, having regard to the lack of
   justification for that omission.
86 The fourth plea, divided into two parts, alleges an error of law, the Commission having allegedly
   ignored options other than the sale of Alitalia group assets, and an infringement of the duty to state
   reasons by the Commission, having regard to the lack of justification for that omission.
87 The fifth plea, divided into five parts, alleges failure to apply to the sale of assets the criterion of a
   private investor operating in normal market economy conditions.
88 The sixth plea alleges an error in identifying the party which must reimburse the aid.
89 The seventh plea alleges infringement of the duty to state reasons as regards, in particular, the
   incomplete aspects of the Commission’s examination referred to in the applicant’s third and fourth
   pleas, namely, first, the lack of any examination of all the characteristics of the measures in their
   context, and, second, failure to examine options other than the sale of assets.
90 For the purposes of examining the pleas set out above, a distinction must be made by classing them
   into three categories, according to whether they seek a finding that the Commission lacked the power
   to adopt the second contested decision, claim infringement of the latter’s obligation to open the formal
   investigation procedure, or claim infringement of the duty to state reasons.
91 It is therefore necessary first to examine the second plea, claiming the Commission lacked the
   power to adopt the second contested decision, and then, in succession, the pleas alleging
   infringement of the obligation to open the formal investigation procedure — namely the first two
   parts of the third plea, the first part of the fourth plea, the fifth plea, the sixth plea, the first plea,
   and the arguments raised in the second plea concerning the unrealistic character of the
   undertakings by the Italian authorities — and, finally, the pleas alleging infringement of the duty
   to state reasons — namely, the seventh plea, the second and third parts of the third plea, and the
   second part of the fourth plea.
   a) The second plea, alleging that the Commission lacked the power to adopt a conditional decision
   after a preliminary examination
92 The applicant calls into question the basis on which the second contested decision was adopted,
   namely Article 4(2) of Regulation No 659/1999, which, in its submission, does not allow the
   Commission to adopt a ‘conditional decision’ that there was no aid following a mere preliminary
   examination, but only at the conclusion of a formal investigation procedure under Article 7(4) of
   Regulation No 659/1999, in conjunction with a finding of the compatibility of the aid with the
   common market. It further argues that, having regard to the operative part of the second contested
   decision, the finding that there was no aid depends on an uncertain event, namely compliance with a
   number of undertakings as to the behaviour of the Italian authorities which, it maintains, are similar
   to the conditions flowing from decisions taken by the Commission pursuant to Article 7(4) of the said
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   regulation. It indicates, finally, that, according to the case-law, lack of jurisdiction on the part of the
   institution which adopted the contested measure represents a ground for annulment as a matter of
   public policy, which should be raised by the EU judicature of its own motion.
93 It should be recalled, first, that, at the conclusion of the preliminary examination phase and in
   accordance with Article 4(2) to (4) of Regulation No 659/1999, the Commission may take three types
   of decision. It may find either that the notified measure does not constitute aid, or that, whilst
   constituting aid, it raises no doubts as to its compatibility with the common market (‘a decision not to
   raise objections’), or that it raises doubts and decide to open the formal investigation procedure. It
   should be recalled, next, that the Commission has the power to adopt a positive decision, under
   Article 7(3) of Regulation No 659/1999 (finding, in some cases after modification by the Member State
   concerned, that a measure is compatible with the common market), and to accompany it with
   conditions allowing it to recognise the compatibility of the said measure with the common market
   and obligations allowing it to monitor compliance with that decision, in accordance with Article 7(4)
   of the same regulation.
94 Thus, it must be held that, unlike decisions taken at the conclusion of the preliminary examination
   phase, like the second contested decision, Article 7(4) of Regulation No 659/1999 concerns positive
   decisions, whereby the Commission finds the existence of aid, pursuant to Article 87(1) EC, which it
   subsequently declares compatible with the common market. That provision does not apply in this
   case, since the Commission concluded that the measure notified, bearing in mind the undertakings
   given by the Italian Republic, did not constitute State aid and did not therefore fall within the scope of
   Article 87(1) EC.
95 It follows that the second contested decision cannot be classified as a conditional decision, within the
   meaning of Article 7(4) of Regulation No 659/1999, imposing conditions or obligations on the Member
   State, or as a decision which requires amendments to the project notified, but, as the Commission has
   maintained, as a decision taking account of undertakings as to behaviour voluntarily entered into by
   the State during the phase of notification of the contested measure in order to clarify certain points.
   Therefore, those undertakings form an integral part of the measure notified, which is moreover
   apparent from the operative part of the second contested decision.
96 Therefore, contrary to what the applicant argues, the Commission has the power to adopt, on the basis
   of Article 4(2) of Regulation No 659/1999, a decision, such as the second contested decision, whereby,
   while finding the absence of State aid, it takes note of undertakings entered into by the Member State.
97 The second plea must therefore be dismissed as unfounded.
   b) The pleas alleging infringement of the obligation to open the formal investigation procedure
98 Concerning this category of pleas, it needs to be determined, in this case, having regard to the claims
   made in each of the pleas, whether the examination carried out by the Commission was of such a
   kind as to set aside serious difficulties, so as to render legitimate the decision not to open the
   formal investigation procedure. In that regard, it is necessary to examine, in succession, the claims
   made in the third plea, those made in the fourth plea, those made in the fifth plea, those made in
   the sixth plea and, finally, those made in the first plea, in the context of which the Court will also
   examine the arguments of the applicant raised in the second plea, not concerning jurisdiction, but
   concerning the allegedly unrealistic nature of the undertakings entered into by the Italian
   authorities.
   ECLI:EU:T:2012:164                                                                                       15
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    The pleas made in the third plea, concerning failure by the Commission to examine all the relevant
    characteristics of the measures in their context
99  The third plea falls into three parts. The first and second parts allege manifest error of assessment,
    through failure to examine the whole of the extraordinary administration procedure and the
    circumstances of the adoption of the amendments made to the said procedure by the Commission.
    The third part alleges infringement of the Commission’s duty to state reasons in that it failed to
    justify the said lack of examination.
100 It is necessary to examine together the claims made in the first two parts of the third plea.
101 In the first part, the applicant argues that the Commission made a manifest error of assessment in that
    it did not examine whether the extraordinary administration procedure, derogating from the rules of
    ordinary bankruptcy law, had in itself given rise to the grant of aid, but contented itself with
    examining certain amendments to the procedure introduced by Decree-Law No 134. In the second
    part, the applicant maintains that the Commission made a manifest error of assessment by deciding
    not to examine the circumstances surrounding the adoption of the amendments to the extraordinary
    examination procedure and, in particular, the measures allowing Alitalia and CAI to be relieved of the
    manpower burdens concerning unemployment and social security which, in the applicant’s argument,
    formed an integral part of the plan for the sale of the assets of the Alitalia group and represented a
    condition laid down by the trade unions and CAI for their consent to that plan.
102 It should be noted, by way of preliminary observation, concerning the examination made by the
    Commission during the preliminary examination phase, that the latter is required to examine all the
    facts and points of law which the persons, undertakings or associations whose interests may have
    been affected by the grant of the aid have brought to its notice (see, to that effect, Case C-367/95 P
    Commission v Sytraval and Brink’s France [1998] ECR I-1719, paragraph 51). It is thus in the light of
    both the information notified by the State concerned and that provided by any complainants that the
    institution must form its assessment in the context of the preliminary examination instituted by
    Article 88(3) of the Treaty (see, to that effect, Case C-204/97 Portugal v Commission [2001]
    ECR I-3175, paragraph 35).
103 It should also be borne in mind that the lawfulness of a decision concerning State aid falls to be
    assessed by the European Union judicature in the light of the information available to the
    Commission at the time when the decision was adopted (Case C-390/06 Nuova Agricast [2008] ECR
    I-2577, paragraph 54; Case C-290/07 P Commission v Scott [2010] ECR I-7763, paragraph 91).
104 It should further be noted that the Commission is not obliged to examine of its own motion and by
    way of guesswork what matters might have been brought before it during the administrative procedure
    (see, to that effect, Commission v Sytraval and Brink’s France, paragraph 102 above, paragraph 60).
105 Concerning the claims made in the first part, it must be held that, as has been pointed out in
    paragraphs 33 and 34 above, the Commission has, first, examined the legislative context governing the
    extraordinary examination procedure and the role of the various players on which that procedure was
    based, and, secondly, assessed the measure of the sale of assets by means of the call for declarations of
    interest and a private treaty procedure having regard to the regime in derogation from the ordinary law
    established by Decree-Law No 134.
106 It is apparent first of all from paragraph 39 of the second contested decision that the Commission
    examined whether the expert report carried out in accordance with Decree-Law No 134 was
    independent, bearing in mind the division of the shareholdings of the establishment to which it was
    entrusted between various financial institutions (those holding the greater part of the capital being
    foreign institutions), in such a way that none of the shareholders held a percentage of shares sufficient
    to have an influence on the decision concerning the assessment.
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107 Moreover, even if the second contested decision contains no reference as to the details of the
    verification by the independent expert of the conformity of the sale price of the shares with the market
    price, it nevertheless contains evidence that the sale had to take place at the market price. Similarly, it
    must be noted that the Italian authorities entered into a certain number of undertakings to control the
    action of the various players involved in the procedure for the sale of assets, of which the Commission
    took note in the second contested decision in order to ensure that the assessment of the bid did not
    lead to the determination of a price lower than the market price.
108 Moreover, the mere fact that the Commission did not have the expert reports at the time the second
    contested decision was adopted is not in itself sufficient to establish that the latter did not carry out a
    complete or sufficient examination as regards the extraordinary administration procedure, especially as
    those reports were not intended to be submitted to it. In this case, those reports were sent to the
    extraordinary administrator on 5 and 7 November 2008, the latter having to make his final report to
    the agent entrusted with the control of the operation. The latter was, moreover, required to verify, in
    particular, the assessments made by the independent experts.
109 Finally, it is apparent from paragraph 62 of the second contested decision that the Commission had in
    its possession the CAI bid sent by the Italian authorities on 3 November 2008, which formed the
    subject-matter of an analysis in paragraphs 58 to 69 of the said decision. The Commission gave its
    view only on the independent character of the assessment of the CAI bid by the independent expert,
    and not on the results of that assessment. The latter were to be sent to the extraordinary
    administrator who had the final decision on the sale of assets. It also follows from the second
    contested decision that the conclusions of those reports on the CAI bid had in any case to be
    confirmed by an agent entrusted with control of the operation of the sale of assets, who had to be
    appointed by the Italian authorities in order to monitor compliance with the undertakings entered
    into by the latter, and in particular, the undertaking whereby the sale of assets was to take place at
    market price. Finally, the said agent had to send the Commission detailed periodic reports concerning
    compliance with the notified process and compliance with the undertakings by the Italian Republic
    and, two weeks after his appointment, an exhaustive report as to the conformity of the CAI bid with
    the market price. According to paragraph 157 of that decision, if the Italian authorities did not
    comply with the terms of that decision, the Commission reserved the right to initiate the formal
    investigation procedure, pursuant to Article 88(2) EC.
110 In the light of the above, as regards the extraordinary administration procedure, the Commission
    cannot therefore be accused of carrying out an insufficient or incomplete examination during the
    preliminary examination phase as to the rules derogating from the ordinary law on bankruptcy.
111 Concerning the claims made in the second part, it should be noted, first, concerning the reductions in
    burdens and other advantages allegedly granted by Italian legislation to CAI, on the matter of
    unemployment and social security, that, as is apparent from paragraph 73 of the second contested
    decision, the Italian authorities confirmed to the Commission that Alitalia staff had no right to be
    recruited by CAI, which was free to acquire assets with or without the associated personnel, in
    accordance with paragraph 119 of the said decision. Thus, it is difficult to conceive in what way CAI
    was relieved by the burden of financing unemployment benefits granted to dismissed Alitalia
    employees, such as those provided for by Decree-Law No 134.
112 Moreover, it is apparent from paragraphs 68 and 120 of the second contested decision that, if CAI was
    to recruit the staff indispensable to its operational activity, bearing in mind the competences necessary
    to operate the assets acquired, that recruitment was to take place in accordance with new conditions
    entirely determined by CAI.
113 Secondly, the claim by the applicant that the Commission had to examine the measures introduced by
    Decree-Law No 134, because they allegedly formed part of the plan for the sale of assets of the Alitalia
    group and were a condition imposed by the trade unions and CAI for their consent to that plan, cannot
    ECLI:EU:T:2012:164                                                                                       17
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                                                RYANAIR v COMMISSION
    succeed, having regard to paragraphs 73 and 74 of the second contested decision. It is apparent from the
    said paragraphs that the Italian authorities indicated to the Commission that Alitalia staff would benefit
    from the unemployment insurance measures provided for by the national legislation in force and that
    Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member
    States relating to the safeguarding of employees’ rights in the event of transfers of undertakings,
    businesses or parts of undertakings or businesses (OJ 2001 L 82, p. 16) was not applicable in this case,
    since the procedure for selling the assets of the Alitalia group did not involve the transfer of an
    economic entity retaining its own identity. Moreover, the Italian authorities indicated to the Commission
    that, in any event, the provisions concerning the maintenance of workers’ rights would not be applicable
    in the context of a procedure for the complete liquidation of the Alitalia group.
114 Finally, it should be noted that, even though the negotiations with the trade unions and CAI had not
    concluded at the time of the submission of the first preliminary bid by the latter, the latter reiterated
    its bid on 25 September 2008, on the same conditions (see paragraphs 15, 17 and 20 above). Thus,
    there is nothing to indicate that the final bid by CAI took account of the trade unions’ claims and
    that therefore the social measures complained of by the applicant formed an integral part of the plan
    for acquisition of Alitalia group assets.
115 It follows that, as regards the circumstances surrounding the adoption of the amendments to the
    extraordinary administration procedure the Commission cannot be accused of having carried out an
    incomplete or insufficient examination at the time of preliminary examination phase as regards the
    reductions in burdens and other advantages allegedly granted by Italian legislation to CAI, since those
    measures were not relevant to the question whether an advantage could have been granted to the
    buyer of the assets of the Alitalia group.
116 Therefore, since the claims formulated in the context of the first and second parts of this plea do not
    permit it to be established that the Commission carried out an incomplete or insufficient examination
    at the time of preliminary examination phase, it must be held that the applicant has not adduced
    evidence of the existence of serious difficulties in that respect. The said claims must therefore be
    dismissed as unfounded.
117 As for the claim that the Commission infringed the duty to state reasons by not justifying the
    insufficiency of the examination at the time of the preliminary examination phase, raised in the
    context of the third part of this plea, that will be examined in the context of the seventh plea.
    The claims formulated in the context of the fourth plea, alleging failure to examine options other than
    the sale of Alitalia group assets
118 The fourth plea is divided into two parts, the first alleging manifest error of assessment by the
    Commission by not examining whether there were options other than the sale of assets, and the
    second alleging infringement by the Commission of the duty to state reasons, in that the latter did not
    justify the absence of the said examination.
119 In the first part, the applicant submits that the Commission should, in accordance with the case-law
    and its own practice, have examined, from the perspective of a market economy investor, the
    alternatives to the sale of the assets, such as judicial liquidation or the injection of fresh capital
    coupled with the restructuring of Alitalia or with a sale of assets, with a view to determining whether,
    in similar circumstances, a private investor would have proceeded with such a sale of assets or whether
    it would have chosen other alternatives. By concluding that it was sufficient, for the purposes of finding
    that the extraordinary administration procedure did not lead to the granting of State aid to the buyers
    of Alitalia, for the sale to take place at market price without examining alternatives to the sale of the
    assets and without justifying that omission, the Commission conducted an insufficient and incomplete
    examination, and committed a manifest error of assessment.
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120 It should be noted, by way of preliminary observation, that, although the second contested decision
    contains no express reference to the private investor principle, the Commission has, in this case,
    applied that principle by concluding that the sale of assets took place at the market price. Moreover,
    the Commission has emphasised many times that the objective of the said sale should be the
    maximisation of the value of the assets, in the interest of Alitalia’s creditors, which demonstrates that
    it took the care to ensure that the conduct of the public authorities was guided by prospects of
    profitability in the long term. Furthermore, the Commission’s conclusion, in paragraph 126 of the said
    decision, that the notified procedure did not lead to the imposition of public authority obligations on
    the buyers likely to call into question the objective of sale at the market price, demonstrates that the
    Commission, essentially, took account of the conduct of a private investor for the purposes of
    assessing the conduct of the Italian authorities and ensuring that the latter did not pursue economic
    policy objectives incompatible with the common market.
121 In accordance with what has been established in the context of the first part of the third plea (see
    paragraphs 107 to 110 above), the Commission became convinced that the sale of assets would take
    place at the market price. Therefore, contrary to what the applicant claims, the Commission was
    under no obligation to examine options other than the procedure chosen by the Italian authorities.
122 Moreover, in so far as CAI, in the context of its bid, proposed to buy groups of assets and the
    passenger air transport business included the corresponding Alitalia time slots necessary to its
    exercise, the comparison of revenue generated by such a sale with that possibly generated by a
    separate sale of assets or Alitalia time slots was not relevant in this case.
123 In the light of the above, the Commission cannot be accused of having carried out an insufficient or
    incomplete examination at the time of the preliminary examination phase as to the existence of
    options other than the sale of assets, the applicant not having adduced evidence of the existence of
    serious difficulties in that respect. It follows that the claims formulated in the context of the first part
    must be set aside as unfounded.
124 In the second part, the applicant argues that, by not examining options other than the sale of assets
    and by giving no reason for that alleged omission, the Commission infringed its duty to state reasons.
    That part must be examined in the context of the seventh plea.
    The claims formulated in the context of the fifth plea, alleging failure to apply the criterion of a private
    investor operating in normal market economy conditions to the sale of assets
125 The fifth plea is in five parts, claiming, first, failure to examine the condition of continuity of service
    and an infringement of the duty to state reasons in that respect; second, failure to examine the
    implicit condition of the buyer’s nationality and infringement of the duty to state reasons in that
    respect; third, failure to take account of evidence showing that it was impossible to obtain the market
    price and infringement of the duty to state reasons in that respect; fourth, failure to take account of
    evidence establishing the existence of State aid; and, fifth, lack of indication as to the appropriate basis
    of assessment of the market price.
126 It is necessary first to examine the claims formulated in the context of the first and fifth parts together,
    then those formulated in the context of the second part, and, finally, those formulated in the context of
    the third and fourth parts together.
    – The claims formulated in the context of the first and fifth parts
127 In the context of the first part, the applicant maintains that the Commission did not examine the
    consequences of the continuity of service requirement introduced by Decree-Law No 134 and
    mentioned in the call for declarations of interest, which led to a public service obligation the cost of
    ECLI:EU:T:2012:164                                                                                        19
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                                                 RYANAIR v COMMISSION
    which should have been assessed in accordance with the criteria found by the judgment of the Court of
    Justice in Case C-280/00 Altmark Trans and Regierungspräsidium Magdeburg [2003] ECR I-7747 (‘the
    Altmark judgment’). It argues that, if the Commission had accepted without reserve the conditions
    placed in relation to the bids, without verifying whether they had an impact on the price offered, that
    would constitute a failure to act capable of establishing the existence of serious difficulties encountered
    by the latter. It argues, moreover, that the Commission’s failure to verify the seriousness of the risk of
    losing timetable slots, by reason of their non-use, invoked by the Italian authorities to justify the
    continuity of service requirement constitutes a manifest error of assessment. Finally, the absence of
    any justification for having failed to carry out such an examination constitutes a failure to state
    reasons for the second contested decision in that regard.
128 In the fifth part, the applicant argues that the Commission was obliged to fix detailed criteria for
    determining the price at which the assets of the Alitalia group were to be sold, requiring as a
    minimum that the price offered by CAI include, first, the EUR 300 million loan granted by the Italian
    Republic to Alitalia and the other forms of aid received by Alitalia and, second, the cost of complying
    with the continuity of service obligation. The fact that the Commission did not provide any indication
    as to the basis on which the assessment of the market price was to be based constitutes, in the
    applicant’s submission, a manifest error of assessment, which led to an undervaluation of the price of
    the Alitalia group assets.
129 It should be recalled, as a preliminary observation, that the question whether the Commission
    misapplied the private investor test is not to be confused with the question whether there were
    serious difficulties which required the formal investigation procedure to be initiated. The examination
    of the existence of serious difficulties is designed not to determine whether the Commission correctly
    applies Article 87 EC, but to establish whether it had, at the time it adopted the second contested
    decision, sufficiently full information in order to assess the compatibility of the measure in question
    with the common market (see, to that effect, Bundesverband deutscher Banken v Commission,
    paragraph 77 above, paragraph 129).
130 The fact that the Commission’s assessment is, in the applicant’s opinion, erroneous, and that it did not
    reply to certain claims raised by the latter does not imply that it was unable to pronounce on the
    measure in question on the basis of the information it possessed and that it therefore had to initiate
    the formal investigation procedure in order to complete its inquiry (see, to that effect, Bundesverband
    deutscher Banken v Commission, paragraph 77 above, paragraph 130).
131 In this case, as the Commission maintains, the sale of Alitalia group assets did not raise any question
    concerning the concept of public service obligation and the continuity of service criterion simply
    formed part of the criteria for assessing the bids. There is nothing in the documents before the Court
    to indicate that the buyer of the air passenger transport business was to be burdened with the
    performance of public service obligations in the context of the notified procedure.
132 Similarly, it must be held that, contrary to what the applicant argues, the Commission excluded, in
    paragraph 118 of the second contested decision, the existence of public authority obligations
    associated with the procedure for the sale of assets and, in particular, verified that such conditions
    had not been imposed on the buyers, as had been claimed by the complainants.
133 In that regard, concerning, in particular, the conditions for operating the air transport business, it is
    apparent from paragraphs 123 to 125 of the second contested decision that, contrary to the
    allegations of the applicant, the Commission examined the relevance of the continuity of transport
    service condition in the medium term to the price of the assets. It obtained clarifications from the
    Italian authorities according to which continuity, as mentioned in Decree-Law No 134 and in the call
    for declarations of interest, did not correspond to public service obligations for the purposes of EU
    law.
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                                               RYANAIR v COMMISSION
134 It must be noted, moreover, that the applicant does not explain in what way the need to ensure
    continuity of air transport service in the medium term, said to have been imposed by the Italian
    authorities as a condition which bids must meet through Decree-Law No 134, had the result of
    diminishing the price of Alitalia group assets below the market price. Moreover, contrary to the
    applicant’s allegations, it is apparent from paragraphs 71 and 102 of the second contested decision
    that the continuity of service criterion was a secondary criterion in relation to that of price, in the
    context of the assessment of bids by the extraordinary administrator. Moreover, as the Italian
    authorities explained to the Commission, the determinant criterion applied by the independent expert
    was that of price, both Decree-Law No 134 and the call for declarations of interest providing that the
    sale price of the assets could not be below the market price, as determined by the independent expert.
    That was, a fortiori, guaranteed by the undertaking entered into by the Italian authorities, referred to in
    paragraphs 71 and 72 of the said decision, that, in any event, assessment of the bid would not lead to
    the determination of a price lower than the market price, recourse to the financial consultant allowing
    the extraordinary administrator to assure himself of that.
135 Taking account of the above, the ability of operators who had submitted bids to ensure continuity of
    service could not have exonerated them from the primary obligation to submit a bid equal to or
    above the market price, as their bid would not have been accepted, in other circumstances.
136 Similarly, the applicant’s argument that the continuity of service condition in the call for declarations
    of interest had the effect of deterring potential bidders from participating by thus diminishing the
    market price cannot succeed. As is apparent from paragraph 53 of the second contested decision, the
    extraordinary administrator received sixty bids in response to the call for declarations of interest
    published on 23 September 2008. Moreover, according to paragraph 45 of the said decision, some of
    the bids, and particularly that of CAI, were submitted even before publication of the said call for
    declarations of interest, which demonstrates that the presence therein of the continuity of service
    condition was not decisive for those bids.
137 In any event, the fact that the need to ensure continuity of air transport service was inserted into the
    call for declarations of interest amongst the requirements which the bids received had to meet does
    not necessarily imply the existence of a public service obligation on the operator whose bid is
    accepted. Even if such an obligation had been thus imposed, it is not apparent from the application
    that compensation was included in the price of the assets of the Alitalia group and that it was higher
    than the net cost engendered by the performance of the public service obligation, so as to confer an
    economic advantage on the provider within the meaning of the Altmark judgment, paragraph 127
    above. Thus, it does not in any way follow from the above that the Commission should have taken
    account of the criteria determined in that judgment for assessing the price.
138 Moreover, it must be noted that the evidence put forward by the applicant in support of its claim that
    the Commission erred in the assessment of the price of Alitalia group assets was not relevant for the
    Commission’s examination. Both the financial situation of Alitalia and the subject-matter and size of
    those bids were different.
139 Concerning the price mentioned in the bid submitted by Air France-KLM in April 2008 for the
    acquisition of Alitalia, it should be noted that that bid was submitted before Alitalia was declared
    insolvent and envisaged the acquisition of the whole of Alitalia’s assets, not by a transfer of assets but
    by a transfer of shares. Moreover, since that bid had been withdrawn, the Commission could not take
    it into consideration, as it was not definitive. As for CAI’s bid, it should be remembered that it was
    submitted in the context of the extraordinary examination procedure to which Alitalia had been made
    subject in the context of its liquidation and that envisaged the acquisition of only part of the latter’s
    assets. In those circumstances, the applicant’s argument that the transfer price offered by CAI should
    include the amount of the loan cannot succeed. The amount of the loan has no effect on the sale
    price of Alitalia group assets, of which only a part have been transferred to CAI, at the market price.
    Finally, concerning the bid submitted in January 2009 for the acquisition of 25% of the shares of
    ECLI:EU:T:2012:164                                                                                       21
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                                                 RYANAIR v COMMISSION
    Alitalia-CAI, it must be noted that the total value of the said company had increased following the sale
    of Alitalia group assets, particularly by reason of the acquisition by that company of another airline and
    that, in any event, since that bid was subsequent to the date of adoption of the second contested
    decision, the Commission could not have taken it into account.
140 Finally, the applicant claims that if Alitalia had stopped operating during the insolvency proceedings, it
    would not in any event have lost its timetable slots, in accordance with Council Regulation (EEC)
    No 95/93 on common rules for the allocation of slots at Community airports (OJ 1993 L 14, p. 1).
    Thus, the Commission made a manifest error of assessment and infringed the duty to state reasons,
    by reason of the fact that it allegedly accepted without reserve the risk of loss by Alitalia of its
    timetable slots in the guise of justification of the need, for the buyer of the assets of the Alitalia group
    to ensure continuity of service.
141 It must be held that it is not apparent from paragraph 125 of the second contested decision, to which
    the applicant refers, that the Commission unconditionally accepted any justification of the continuity
    of service criterion by the risk of loss of Alitalia timetable slots. In that paragraph, the Commission
    indicated, in essence, that the value of a sufficiently broad group of assets included the goodwill, a
    part of which represented the timetable slots necessary to provide the service. That consideration
    implies that the Commission took into account the continuity criterion out of concern to maximise
    the value of the assets concerned by the transfer, in order to obtain a higher transfer price in the
    interest of Alitalia creditors and not in a logic of continuing the activity of a public service. Thus, the
    applicant’s argument finds no foundation in the second contested decision.
142 In any event, the applicant does not in any way demonstrate to what extent such an examination was
    necessary to allow the Commission to assess the conformity of the continuity of service condition with
    the criterion of a private investor operating in normal market economy conditions and thus fails to
    prove the existence of serious difficulties. It follows that the Commission cannot be accused of any
    insufficiency of reasoning in that respect.
143 In those circumstances, the claims formulated in the context of the first and fifth parts of the fifth plea
    must be dismissed as unfounded.
    – The claims formulated in the context of the second part
144 In the context of the second part of this plea, the applicant submits that the sale of Alitalia’s assets was
    subject to an implied condition that the buyer should be of Italian origin, which allegedly reduced the
    sale price below the market price and discouraged competing bids. The Commission’s failure to
    examine that factor and draw the consequences from such an examination constituted a manifest
    error of assessment. Moreover, the lack of any explanation by the Commission in that regard
    constituted a failure to state reasons.
145 In this case, it should be noted that the Commission verified that the call for declarations of interest
    did not contain any discriminatory clause based on the nationality of the bidders. It concluded,
    moreover, that the latter had been widely publicised both nationally and internationally. As stated in
    paragraph 136 above, the Commission indicated in the second contested decision, first, that, from the
    time of his appointment and before the publication of the said call for declarations of interest, the
    extraordinary administrator resolved to make contact with the principal international airline companies
    and, second, that 60 bids from Italian and foreign entities were received by the extraordinary
    administrator.
146 Moreover, the Commission examined the role of the bank selected in order to promote the submission
    of a bid to acquire Alitalia in the procedure for the sale of Alitalia assets and concluded, in the
    footnote on page 34 of the second contested decision, that the latter had relinquished any role as
    adviser of the competent ministry as from the placing of Alitalia into extraordinary administration,
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                                               RYANAIR v COMMISSION
    namely 29 August 2008. Apart from the task entrusted to it prior to the said placing, it is not apparent
    from the second contested decision that that bank had participated in the estimation of Alitalia’s assets
    and that it could have favoured CAI to the detriment of other bidders. Moreover, it must be
    remembered that the Italian authorities had entered into an undertaking not to interfere with the
    action of the extraordinary administrator.
147 Thus, the applicant’s arguments claiming a conflict of interests between the bank selected in order to
    promote the submission of a bid to acquire Alitalia and CAI, imprecision of the call for declarations
    of interest and short deadlines surrounding the submission of bids procuring an advantage for CAI
    cannot succeed. As regards the non-discriminatory character of the sale of assets procedure, it must
    be held that, since the complaints formulated in the context of the second part of the fifth plea do
    not permit it to be established that the Commission carried out an incomplete or insufficient
    examination at the time of the preliminary examination procedure or that the latter did not draw the
    consequences from examination of the conditions of sale of Alitalia group assets, the applicant has
    not produced evidence of the existence of serious difficulties in that respect. Moreover, the applicant
    cannot claim that the second contested decision is vitiated by a lack of reasoning in that regard. The
    complaints formulated in the context of the second part of the fifth plea must therefore be dismissed
    as unfounded.
    – The complaints formulated in the context of the third and fourth parts
148 In the third part, the applicant argues that, since the procedure for the sale of assets was not open,
    transparent and non-discriminatory, it was not capable of guaranteeing a sale at the market price. It
    argues that, in any event, the other guarantees of an independent assessment such as the intervention
    of the independent expert and the agent entrusted with control of the operation were not capable of
    guaranteeing that the price paid by the buyer corresponded to the market price. The Commission’s
    failure to draw the correct conclusions as to the impossibility of reaching the market price under such
    circumstances constituted a manifest error of assessment. Moreover, the lack of justification in that
    regard constituted a failure to state reasons.
149 In the context of the fourth part, the applicant argues that the Italian authorities have reduced the
    price at which CAI was able to acquire Alitalia by cancelling certain debts and making its bid more
    attractive to the trade unions. By not taking into account those facts which were known to the
    Commission and by not finding that they gave rise to the granting of aid to CAI, it committed a
    manifest error of assessment.
150 As has been recalled in the context of the examination of the complaints formulated in support of the
    third plea, the Commission took the view that the procedure for sale of assets by private treaty
    complemented by the call for declarations of interest did not in itself offer a sufficient degree of
    transparency to ensure that the assets would be sold at the market price. Consequently, the
    Commission verified that the bid had been subjected to an independent assessment, in order to ensure
    that the price proposed was not below the market price. Moreover, as concluded in paragraphs 107
    to 109 above, the assessment of the assets by the independent expert, corroborated by the verification of
    the economic value of the bids in relation to the assets, carried out by the independent financial adviser,
    and the final intervention of the agent entrusted with the control of the operation, offered sufficient
    guarantees of independence, enabling a sale of the assets at market value to take place.
151 It follows that the complaints formulated in the context of the third part of this plea must be
    dismissed, as the applicant has not established the existence of evidence of serious difficulties and the
    Commission cannot be accused of infringing the duty to state reasons in those circumstances.
152 Concerning the fourth part, it should be noted that CAI took over only part of Alitalia’s staff, engaged
    on the basis of entirely new working conditions and contracts, and that the social measures referred to
    by the applicant did not apply to the staff re-employed by CAI.
    ECLI:EU:T:2012:164                                                                                      23
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                                                RYANAIR v COMMISSION
153 Therefore, the complaints formulated in the context of the fourth part of the fifth plea must be
    dismissed. Thus, it must be held that, since the complaints formulated in the context of the fifth plea
    do not permit it to be established that the Commission carried out an incomplete or insufficient
    examination at the time of the preliminary examination procedure, the applicant has not adduced
    evidence of the existence of serious difficulties in that respect. Consequently, the fifth plea must be
    dismissed in its entirety.
    The complaints formulated in the context of the sixth plea, alleging an error in identification of the
    party having to repay the aid
154 The applicant argues, in essence, that the Commission did not examine the whole of the criteria
    required by the case-law for the purposes of assessing an economic continuity between Alitalia and
    CAI, particularly the price at which the transfer of assets took place, the identity of the shareholders
    of the entity transferred and that of its buyer, the time, the subject-matter and the economic logic of
    the transfer of assets. It argues that the Commission concentrated its analysis solely on the criterion
    of the subject-matter of the sale of assets, ignoring the other criteria.
155 Concerning the obligation to recover aid paid to a company in difficulty, it should be recalled that, as is
    apparent from the case-law, it may be extended to a new company to which the company in question
    has transferred part of its assets, where that transfer permits the conclusion that there is an economic
    continuity between the two companies. For a finding of the existence of an economic continuity, the
    following factors may be taken into consideration: the subject-matter of the transfer (assets and
    liabilities, maintenance of the workforce, grouped assets), the price of the transfer, the identity of the
    shareholders or the owners of the undertaking which takes over and of the initial undertaking, the
    time at which the transfer takes place (after the beginning of the investigation, the opening of the
    procedure or the final decision) or the economic logic of the operation (see, to that effect, Joined Cases
    T-415/05, T-416/05 and T-423/05 Greece and Others v Commission [2010] ECR I-4749,
    paragraph 135).
156 It should be noted at the outset that, contrary to what the applicant claims, that case-law does not
    require the Commission to take into account the whole of the above factors, as is demonstrated by
    use of the expression ‘may be taken into consideration’. It follows that the Commission was not
    required to examine, in particular and over and above the other criteria, the time at which the
    transfer of the assets of the Alitalia group to CAI took place, which is one of the factors which ‘may’
    be taken into consideration in order to set aside the economic continuity between those two entities.
157 In any event, it is apparent from the examination of the second contested decision that the
    Commission concluded that there was no continuity between Alitalia and CAI, on the basis of the
    subject-matter and the price of the transfer of assets, of the fact that the shareholders were not
    identical, and of the economic logic of the operation. In this case, the Commission examined the
    question of the continuity between Alitalia and CAI in paragraphs 128 to 151 of the said decision.
    The Commission first of all underlined, in paragraph 132 of that decision, that the notified measure
    as modified by the undertakings entered into by the Italian authorities should lead to a sale of Alitalia
    group assets at the market price. It then examined whether there was a continuity in the enjoyment of
    the competitive advantage created by the EUR 300 million loan between Alitalia and the buyers of the
    assets concerned by the sale of assets procedure.
158 In that respect, the Commission has underlined, in paragraph 135 of the second contested decision, as
    to the subject-matter of the sale of assets, that those assets had not been offered in a grouped manner
    in the context of the call for declarations of interest and did not therefore correspond to homogeneous
    economic units, which could have had the effect of limiting the choice of prospective buyers. It held, in
    paragraph 136 of the said decision that, conversely, taking account of the very varied declarations of
    interest corresponding to different assets, at the conclusion of the sale of assets procedure, the
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    activities of Alitalia were distributed between numerous parties and organised in a different way. Thus,
    it concluded, in paragraph 137 of that decision, that, having regard to the extent of the sale of assets
    and the parcelling of the bids of the potential buyers, the sale of assets procedure implemented by the
    Italian Republic did not involve economic continuity between Alitalia and CAI.
159 Concerning the shareholders of Alitalia and CAI, the Commission concluded, in paragraph 140 of the
    second contested decision, that they were not one and the same. It described CAI as being a
    consortium of private investors who were different from the shareholders of Alitalia and found that
    the exchange of shares of the latter for shares in the new company was possible only on the basis of
    legislative provisions concerning the recovery of undertakings in the context of the composition
    procedure, which were not relevant in the present case.
160 Next, the Commission found, in paragraph 141 of the second contested decision, that CAI would take
    over only certain assets relating to the passenger transport business of Alitalia, that it pursued its won
    strategy as an undertaking and that no automatic transfer of employment contracts took place between
    Alitalia and CAI. The Commission further noted, in paragraph 142 of the said decision, that CAI
    would not continue the business of Alitalia, the Italian authorities having warranted that at the
    conclusion of the process of the sale of assets it would not represent more than 69% of the capacity of
    Alitalia in terms of passengers transported by kilometre, as calculated at the date of the notification.
    Moreover, as is apparent from paragraphs 13 and 49 of that decision, the sale of Alitalia group assets
    to CAI was designed to maximise the value of Alitalia assets before its liquidation, in the interests of
    creditors.
161 It follows from the above that, contrary to what the applicant claims, the Commission did not base its
    reasoning essentially on the subject-matter of the transfer. As is apparent from paragraph 160 above,
    the Commission examined and confirmed the economic logic of the operation. Moreover, throughout
    its examination it explained the reasons why it considered that there was no economic continuity
    between Alitalia and CAI. It thus concluded, in paragraphs 130 to 132 of the second contested
    decision, that no undue advantage could be transferred to the buyer of the Alitalia group assets,
    having regard to the fact that all measures were taken to ensure that the transfer took place at a price
    not lower than the market price. It must therefore be held, in the light of the considerations set out
    above and in accordance with the case-law cited in paragraph 155 above, that the Commission carried
    out a sufficient and complete examination and that the applicant has not adduced evidence of the
    existence of serious difficulties in that respect.
162 Therefore, since in this case it did not appear necessary for the Commission to take a position on the
    time of the transfer of the assets, it cannot be accused of a failure to state reasons in that respect.
163 In the light of the above, the complaints formulated in the context of the sixth plea must therefore be
    dismissed as unfounded.
    The complaints formulated in the context of the first plea, concerning failure to initiate a formal
    investigation procedure
164 The applicant argues that by not initiating the formal investigation procedure provided for in
    Article 88(2) EC, the Commission issued an incomplete decision which should be annulled. It
    considers, in that regard, that even though the period devoted to the preliminary examination
    preceding the adoption of the second contested decision was not exceptionally long, serious
    difficulties could nevertheless have been found by the Commission. Moreover, in its reply, the
    applicant points out that since the preliminary examination procedure started with the review of the
    facts in April 2008, it was almost four times longer than the maximum duration of two months laid
    down by Article 4(5) of Regulation No 659/1999 for the conclusion of a preliminary examination.
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165 The applicant also provides a non-exhaustive list of the errors made by the Commission, which it
    claims demonstrates that the complexity of the examination required in this case justified the
    initiation of the formal investigation procedure.
166 It maintains, moreover, that, having regard to the political context of this case, the undertakings
    entered into by the Italian authorities whereby the sale of Alitalia group assets would be carried out at
    the market price were unrealistic and that, in any event, they had been imposed too late in the process,
    after the irreversible happening of the events which they were supposed to concern.
167 In the first place, concerning the applicant’s arguments in relation to the duration of the preliminary
    examination phase, it should be noted, as the Commission has argued, that the applicant contradicts
    itself in its pleadings. Whereas, in the application, it argues that the duration of that phase, less than one
    month, was not exceptionally long, in the reply it states that the said phase was almost four times longer
    than the maximum duration of two months laid down by Article 4(5) of Regulation No 659/1999.
168 In that respect, it should be recalled that the two-month time-limit prescribed by Article 4(5) of
    Regulation No 659/1999 for closing a preliminary examination concerns the period between the full
    notification of the measure and the adoption of the decision pursuant to Article 4(2), (3), or (4), namely,
    in this case, the period from 14 October to 12 November 2008. The applicant is thus wrong also to take
    account of the period preceding the date of notification of the procedure for the sale of assets by the
    Italian authorities, during which the Commission had contacts with them, which began in April 2008.
169 It must therefore be concluded in this case that the duration of the preliminary examination phase was
    less than that laid down by Article 4(5) of Regulation No 659/1999 and thus perfectly reasonable. That
    duration is, consequently, not of such a nature as to demonstrate the existence of serious difficulties
    which the Commission could have been confronted with in the context of the preliminary
    examination, but rather reflects the fact that examination of the measure notified in this case did not
    raise any particular difficulty (see, to that effect, Joined Cases T-568/08 and T-573/08 M6 v
    Commission [2010] ECR II-3397, paragraph 142).
170 In the second place, the applicant’s arguments concerning the unrealistic nature of the undertakings
    integrated into the second contested decision cannot succeed. It should be noted, first, that the call for
    declarations of interest published on 23 September 2008 provided that the criteria with which bids had to
    comply had to be in accordance with the requirements of the applicable Italian legislation and, in
    particular, that the sale price of the assets could not be less than the market price, as determined by an
    independent expert. Second, the latter had to examine the bids in order to ensure — taking account
    primarily of the price offered despite the other criteria potentially fulfilled by the bids submitted — that the
    proposed sale price of the assets was equal to or higher than the market price. Third, at the time of the
    adoption of the second contested decision, the sale of assets had not yet been approved by the monitoring
    committee and the final decision of the extraordinary administrator had not yet been taken. The latter was
    required as a preliminary, in accordance with the extraordinary administration procedure, to obtain
    authorisation from the monitoring committee and the minister responsible on the sale in question. Thus,
    the undertaking entered into by the Italian authorities whereby the minister responsible was not to interfere
    with the action of the extraordinary administrator is not out of time, given the stage of the procedure.
171 Moreover, the mention of the said undertakings in the second contested decision cannot constitute an
    indication of serious difficulties facing the Commission. Those undertakings prove that the
    Commission took the precautions necessary both to monitor compliance with the said undertakings
    by the agent entrusted with the monitoring of the operation and to draw the consequences from any
    non-compliance therewith. In any event, the applicant’s arguments concerning the inadequacy of the
    undertakings are irrelevant, having regard to the fact that the Commission reserved the right to
    initiate the formal investigation procedure on the measure in question, in the event of
    non-compliance with the terms of the second contested decision and, in particular, the undertakings
    entered into by the Italian authorities and endorsed in the said decision.
    26                                                                                             ECLI:EU:T:2012:164
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172 In the third place and finally, concerning the ten errors alleged by the applicant, which are supposed to
    indicate the existence of serious difficulties, it should be noted that they relate, in reality, to the complaints
    raised in the context of the third, fourth and fifth pleas, with regard to which those pleas have been
    examined. Therefore, it is not necessary to examine them separately, in the context of the present plea.
173 Therefore, the complaints formulated in the context of the first plea must be dismissed as unfounded.
174 In the light of all of the above, it must be held that the applicant has not demonstrated the existence of
    serious difficulties. It follows that the Commission was not required to initiate the formal investigation
    procedure on the measure of the sale of assets, in accordance with the case-law cited in paragraph 80
    above.
    c) The pleas claiming infringement of the duty to state reasons
175 The applicant considers that the Commission has not followed its ‘consistent decision-making practice’
    on State aid, particularly as regards examination of all the relevant characteristics of a measure and its
    context and that of the options other than the sale of assets, in the light of the criterion of a private
    investor operating in normal market economy conditions. The Commission was thus under a
    reinforced obligation to state reasons. Moreover, the applicant considers that the second contested
    decision contains certain conclusions of the Commission that are not supported by sufficient detail,
    particularly on the independence of the expert and the certainty that the sale of assets would take
    place at the market price, for which it is not possible to understand the latter’s reasoning.
176 It should be recalled that the complaint alleging lack of reasoning of the second contested decision as
    regards the absence of any examination of the whole of the relevant characteristics of the notified
    measure and its context coincides with the third part of the third plea. Similarly, the complaint
    alleging that the second contested decision lacked reasoning as regards methods of recovery which
    constitute options other than the sale of assets coincides with the second part of the fourth plea.
    Therefore, as has been indicated in paragraphs 89, 117 and 124 above, the said parts will be examined
    in the context of the present plea.
177 Moreover, according to settled case-law, the statement of reasons required by Article 253 EC must be
    appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning
    followed by the institution which adopted the measure in such a way as to enable the persons
    concerned to ascertain the reasons for the measure and to enable the court having jurisdiction to
    exercise its power of review (Commission v Sytraval and Brink’s France, cited in paragraph 102 above,
    paragraph 63; Case C-17/99 France v Commission [2001] ECR I-2481, paragraph 35).
178 The requirements to be satisfied by the statement of reasons depend on 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 whether the statement of reasons meets the
    requirements of Article 253 EC 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 (Case C-350/88 Delacre and Others
    v Commission [1990] ECR I-395, paragraph 16, France v Commission, cited in paragraph 177 above,
    paragraph 36).
179 In particular, the Commission is not obliged to adopt a position on all the arguments relied on by the
    parties concerned, but it is sufficient if it sets out the facts and the legal considerations having decisive
    importance in the context of the decision (Bundesverband deutscher Banken v Commission, cited in
    paragraph 77 above, paragraph 45, and case-law cited).
    ECLI:EU:T:2012:164                                                                                              27
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180 As regards, more particularly, a Commission decision to terminate the preliminary investigation
    procedure where it is found that the State aid objected to by a complainant does not exist, the
    Commission must at least provide the complainant with an adequate explanation of the reasons why
    the factual and legal material relied on in the complaint has 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 (Commission v Sytraval and
    Brink’s France, cited in paragraph 102 above, paragraph 64).
181 It should be remembered, as regards the nature of the measure at issue, that the second contested
    decision was adopted at the end of the preliminary stage of the procedure for reviewing aid under
    Article 88(3) of the EC Treaty, which is intended merely to allow the Commission to form a prima
    facie opinion on the partial or complete compatibility of the aid in question without opening the
    formal investigation procedure under Article 93(2) of the EC Treaty, which is designed to enable the
    Commission to be fully informed of all the facts pertaining to that aid (Case C-333/07 Regie Networks
    [2008] ECR I-10807, paragraph 64).
182 Such a decision, which is taken within a short period of time, must simply set out the reasons for
    which the Commission takes the view that it is not faced with serious difficulties in assessing the
    compatibility of the aid at issue with the common market (Matra v Commission, cited in
    paragraph 58 above, paragraph 48; Regie Networks, paragraph 65).
183 In this case, concerning the context and the circumstances in which the second contested decision was
    adopted, it is apparent from examination of the first part of the third plea (see paragraphs 105 and 110
    above) that the Commission examined the role of the various participants in the extraordinary
    administration procedure and assured itself that the measure, as notified, would guarantee that the
    sale of assets took place at the market price. Moreover, it also concluded in the context of the
    examination of the second part of that plea that the Commission was not required to examine the
    points which were not relevant for its assessment, such as reductions of burdens and other advantages
    allegedly granted by Italian legislation to CAI, due to the entry into force of Decree-Law No 134.
184 Similarly, it is apparent from examination of the fourth plea that, since the Commission assured itself
    that the sale had to take place at the market price, it was under no obligation to examine options other
    than the judicial liquidation procedure.
185 Therefore, it must be held that, having regard in particular to the case-law cited in paragraph 179
    above, the duty to state reasons did not require the Commission to set out in the second contested
    decision factors other than the facts and the legal considerations having decisive importance in the
    context of the decision. Such a statement of reasons is sufficient to inform the applicant of the
    justifications for the second contested decision and enable the General Court to review its legality on
    the basis of Article 253 EC.
186 Concerning the Commission’s conclusions which were allegedly not supported by reasoning, it should
    be noted that, in paragraph 39 of the second contested decision, the Commission indicated the reasons
    why it considered that the expert report carried out in accordance with Decree-Law No 134 was
    independent. Thus, the applicant’s complaint that the second contested decision lacked reasoning as
    regards the presence of certain shareholders of the independent expert in the capital of CAI also
    cannot succeed.
187 Finally, as regards the applicant’s argument that, in the second contested decision, the Commission
    maintained that the fact that one of the shareholders of CAI also had a holding in a company which
    is an unsecured creditor of Alitalia had no impact on the price proposed by CAI, it is sufficient to
    note that the Commission did not base its reasoning on that consideration in order to affirm that the
    price proposed in that bid was in accordance with the market price, so that it was not in any way
    required to support it.
    28                                                                                      ECLI:EU:T:2012:164
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188 In the light of the foregoing, the present plea must therefore be dismissed. Similarly, the third part of
    the third plea and the second part of the fourth plea must be dismissed.
189 In those circumstances, the application for annulment of the second contested decision must be
    dismissed in its entirety, without there being any need to adopt the measures of organisation of
    procedure sought by the applicant.
    E– The application for partial annulment of the first contested decision
190 The applicant seeks the partial annulment of the first contested decision in so far as it does not order the
    recovery of the aid from the buyers of the assets of the Alitalia group and grants the Italian Republic an
    additional period of four months to implement that decision and to recover the loan of EUR 300 million.
191 The applicant argues, in essence, that the Commission infringed the principle of sound administration
    and Article 14(3) of Regulation No 659/1999, by granting the Italian Republic a further four months to
    recover the loan granted to Alitalia and by refraining from ordering the suspension of the aid, pursuant
    to Article 11 of Regulation No 659/1999. In addition, it argues that the Commission had to order
    recovery of the aid from CAI and not Alitalia.
192 It should be noted, as a preliminary observation, that Alitalia-CAI and the Italian Republic, without
    raising a formal objection of inadmissibility, consider that the action against the first contested
    decision is inadmissible. In that respect, Alitalia-CAI argues in essence that the applicant has no
    interest in bringing proceedings against the first contested decision. The Italian Republic argues that
    the applicant is not individually concerned by the said decision.
193 In accordance with the case-law cited in paragraph 56 above, the Court must examine the admissibility
    of the action of its own motion, in accordance with Article 113 of the Rules of Procedure.
194 Concerning, first, the question whether the applicant is individually affected by the first contested
    decision, it should be recalled that, in the field of State aid control, a decision closing a proceeding
    pursuant to Article 88(2) EC is of individual concern to any undertaking which was at the origin of
    the complaint which led to the opening of the investigation procedure, and whose views were heard
    during that procedure and largely determined the conduct of that procedure, provided, however, that
    its position on the market was significantly affected by the aid which is the subject of the decision.
    However, that does not preclude the possibility that an undertaking may be in a position to
    demonstrate by other means — by reference to specific circumstances distinguishing it individually as
    in the case of the person addressed — that it is individually concerned (Case T-11/95 BP Chemicals v
    Commission [1998] ECR II-3235, paragraph 72).
195 In this case, the applicant argues, first, that it lodged complaints and observations during the investigation
    procedure which led to the adoption of the first contested decision and, second, that its position on the
    market was substantially affected by the granting of the loan and the first contested decision, inasmuch as,
    in that decision, the Commission granted the Italian authorities four months to recover that loan. The
    applicant refers moreover to the complaint of 29 April 2008 addressed to the Commission, in which it
    maintained that the loan continued to place it at a disadvantage in relation to Alitalia by preventing its
    expansion on the Italian domestic market and on routes departing from Italy and that it suffered a loss of
    passenger numbers and revenue by reason of the below-cost fares which Alitalia was in a position to offer
    following the granting of the loan. Finally, it argues that its interest in seeing the decision partially annulled
    is to prevent the occurrence of similar infringements by the Commission in the future.
196 It should be noted, at the outset, that the applicant has played an active role in the procedure which
    preceded the adoption of the first contested decision, by lodging complaints against the granting of
    the loan to Alitalia and its subsequent conversion into own capital, which were at the origin of the
    ECLI:EU:T:2012:164                                                                                              29
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                                                  RYANAIR v COMMISSION
    Commission’s inquiry, and that it submitted observations in the context of the formal investigation
    procedure. Moreover, the observations submitted by the applicant have had an influence on the
    course of the procedure regarding the said loan, having regard to the fact that the Commission
    adopted a decision declaring that it constituted an illegal aid incompatible with the common market
    and that it had to be recovered from its beneficiary.
197 However, it must be held that the applicant has not demonstrated that the fact of ordering immediate
    recovery of the aid from Alitalia and not CAI has the effect of substantially affecting its competitive
    position. Similarly, the applicant has not demonstrated that the time granted by the Commission to
    the Italian Republic, which had allegedly allowed the obligation of the beneficiary to recover the aid to
    be circumvented, affected its interests. Finally, the applicant has also failed to demonstrate to what
    extent the fact of not having ordered the suspension of the aid, having the effect of allowing Alitalia
    to convert it into own capital, affected the applicant.
198 It follows that the applicant has not demonstrated that it is individually concerned by the first
    contested decision.
199 It should be remembered that the conditions for the admissibility of an action are cumulative. Thus, without
    having to examine the applicant’s interest in bringing an action, the action must be declared inadmissible, in
    so far as it seeks the annulment of the first contested decision, for lack of individual effect on the applicant
    (see, to that effect, Case T-326/99 Olivieri v Commission and EMEA [2003] ECR II-6053, paragraph 66).
    Costs
200 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if
    they have been applied for in the successful party’s pleadings. In addition, under Article 87(4) of the Rules
    of Procedure, Member States which have intervened in the proceedings are to bear their own costs.
201 Since the applicant has been unsuccessful in its submissions, it must be ordered to pay its own costs,
    as well as those of the Commission and Alitalia-CAI.
202 Pursuant to Article 87(4) of the Rules of Procedure, the Italian Republic must bear its own costs.
    On those grounds,
                                     THE GENERAL COURT (Fifth Chamber)
    hereby:
    1.    Dismisses the action;
    2.    Orders Ryanair Ltd to pay its own costs and those incurred by the European Commission
          and Alitalia – Compagnia Aerea Italiana SpA;
    3.    Orders the Italian Republic to bear its own costs.
    Papasavvas                                       Vadapalas                                         O’Higgins
    Delivered in open court in Luxembourg on 28 March 2012.
    [Signatures]
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                                                                                        Table of contents
Background to the dispute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                        2
 A – Administrative procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                            2
 B – Decision to open the formal investigation procedure under Article 88(2) EC . . . . . . . . . . . . . . . . . . . . . .                                                                            3
 C – Contested decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                       5
     1. Decision concerning the loan granted to Alitalia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                                                   5
     2. Decision concerning the sale of Alitalia assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                                                6
Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        8
Forms of order sought . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                    8
Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  9
 D – The application for annulment of the second contested decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                                                                9
     1. Admissibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                  9
     2. The purpose of review by the General Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                                                  12
     3. Substance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                 13
            a) The second plea, alleging that the Commission lacked the power to adopt a conditional
                    decision after a preliminary examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                                        14
            b) The pleas alleging infringement of the obligation to open the formal investigation procedure                                                                                           15
                    The pleas made in the third plea, concerning failure by the Commission to examine all the
                    relevant characteristics of the measures in their context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                                                   16
                    The claims formulated in the context of the fourth plea, alleging failure to examine options
                    other than the sale of Alitalia group assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                                        18
                    The claims formulated in the context of the fifth plea, alleging failure to apply the criterion
                    of a private investor operating in normal market economy conditions to the sale of assets . .                                                                                     19
                        – The claims formulated in the context of the first and fifth parts . . . . . . . . . . . . . . . . . . . . . .                                                               19
                        – The claims formulated in the context of the second part . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                                                           22
                        – The complaints formulated in the context of the third and fourth parts . . . . . . . . . . . . . .                                                                          23
                    The complaints formulated in the context of the sixth plea, alleging an error in
                    identification of the party having to repay the aid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                                             24
                    The complaints formulated in the context of the first plea, concerning failure to initiate a
                    formal investigation procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                              25
            c) The pleas claiming infringement of the duty to state reasons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                                                               27
ECLI:EU:T:2012:164                                                                                                                                                                                    31
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 E – The application for partial annulment of the first contested decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                                                              29
Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
32                                                                                                                                                                           ECLI:EU:T:2012:164