1 By its appeal, Ja zum Nürburgring eV seeks to have set aside the judgment of the General Court of the European Union of 19 June 2019, Ja zum Nürburgring v Commission (T‑373/15, EU:T:2019:432; ‘the judgment under appeal’), by which the General Court dismissed its action for the partial annulment of Commission Decision (EU) 2016/151 of 1 October 2014 on State aid SA.31550 (2012/C) (ex 2012/NN) implemented by Germany for Nürburgring (OJ 2016 L 34, p. 1) (‘the final decision’).
2 Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] (OJ 1999 L 83, p. 1), as amended by Council Regulation (EU) No 734/2013 of 22 July 2013 (OJ 2013 L 204, p. 15) (‘Regulation No 659/1999’), which was repealed by Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU] (OJ 2015 L 248, p. 9), is applicable to the facts of the present case.
3 Article 1(h) of Regulation No 659/1999 defines, for the purposes of that regulation, the concept of ‘interested party’ to include ‘any Member State and any person, undertaking or association of undertakings whose interests might be affected by the granting of aid, in particular the beneficiary of the aid, competing undertakings and trade associations’.
4 Under paragraphs 2 to 4 of Article 4 of Regulation No 659/1999, which is entitled ‘Preliminary examination of the notification and decisions of the Commission’: ‘2. Where the Commission, after a preliminary examination, finds that the notified measure does not constitute aid, it shall record that finding by way of a decision. 3. Where the Commission, after a preliminary examination, finds that no doubts are raised as to the compatibility with the common market of a notified measure, in so far as it falls within the scope of Article [107](1) [TFEU], it shall decide that the measure is compatible with the common market (hereinafter referred to as a “decision not to raise objections”). That decision shall specify which exception under the Treaty has been applied. 4. Where the Commission, after a preliminary examination, finds that doubts are raised as to the compatibility with the common market of a notified measure, it shall decide to initiate proceedings pursuant to Article [108](2) [TFEU] (hereinafter referred to as a “decision to initiate the formal investigation procedure”).’
5 Under Article 6(1) of that regulation: ‘The decision to initiate the formal investigation procedure shall summarise the relevant issues of fact and law, shall include a preliminary assessment of the Commission as to the aid character of the proposed measure and shall set out the doubts as to its compatibility with the common market. The decision shall call upon the Member State concerned and upon other interested parties to submit comments within a prescribed period which shall normally not exceed one month. In duly justified cases, the Commission may extend the prescribed period.’
6 The first sentence of Article 13(1) of Regulation No 659/1999 provides that the examination of possible unlawful aid is to result in a decision pursuant to Article 4(2), (3) or (4) of that regulation.
7 The facts of the dispute are set out in paragraphs 1 to 16 of the judgment under appeal and, for the purposes of the present proceedings, may be summarised as follows.
8 The Nürburgring complex (‘the Nürburgring’), located in the Land of Rhineland-Palatinate (Germany), consists of a motor-car race track (‘the Nürburgring race track’), a leisure park, hotels and restaurants.
9 Between 2002 and 2012, the public undertakings owning Nürburgring (‘the sellers’) were the beneficiaries of aid, mainly from the Land of Rhineland-Palatinate. In 2011, the appellant, a German motor sport association, filed a first complaint with the Commission concerning that aid. That aid was the subject matter of a formal investigation procedure under Article 108(2) TFEU, initiated by the Commission during 2012. In the same year, the Amtsgericht Bad Neuenahr-Ahrweiler (Local Court, Bad Neuenahr-Ahrweiler, Germany) made a finding that the sellers were insolvent and decided to proceed to the sale of their assets (‘the Nürburgring assets’). A tender process (‘the tender process’) was initiated and concluded with the sale of those assets to Capricorn Nürburgring Besitzgesellschaft GmbH (‘Capricorn’).
10 In 2013, the appellant filed a second complaint with the Commission, on the ground that the tender process was not open, transparent, non-discriminatory and unconditional. According to the appellant, the successful buyer thus received new aid and ensured the continuity of the sellers’ economic activities, so that the decision on recovery of the aid received by the sellers had to be extended to that buyer.
11 In Article 2 of the final decision, the Commission found that certain support measures in favour of the sellers were unlawful and incompatible with the internal market (‘the aid to the sellers’). In Article 3(2) of that decision, the Commission stated that any potential recovery of the aid to the sellers would not concern Capricorn or its subsidiaries (‘the first contested decision’).
12 In the final indent of Article 1 of that decision, the Commission determined that the sale of the Nürburgring assets to Capricorn did not constitute State aid (‘the second contested decision’). The Commission took the view in that regard that the tender process had been conducted in an open, transparent and non-discriminatory manner, that that process had resulted in a sale price consistent with the market and that there was no economic continuity between the sellers and the buyer.
13 By application lodged at the General Court Registry on 10 July 2015, the appellant, then the applicant, brought an action for annulment of the first and second contested decisions.
14 The General Court dismissed the action as inadmissible in so far as it sought annulment of the first contested decision, since the appellant had not shown that it was individually concerned by that decision. For the reasons set out in paragraphs 48 to 69 of the judgment under appeal, the General Court held, first, that the appellant had not established to the requisite legal standard that that decision had substantially affected a competitive position which it held on the relevant markets, second, that it could not rely, as a trade association, on the standing of one of its members, and, third, that it had not established that it occupied, in the context of the formal investigation procedure that preceded the adoption of the first contested decision, a position as negotiator, clearly circumscribed and intimately linked to the subject matter of that decision.
15 As regards the action for annulment of the second contested decision, the General Court held, in paragraph 83 of the judgment under appeal, that the parties agreed that the second contested decision was a decision adopted after the preliminary stage of the procedure for reviewing aid, under Article 108(3) TFEU, and not after a formal investigation procedure.
16 In paragraph 88 of the judgment under appeal, the General Court took the view that it could not be excluded that the appellant, in view of its objective, which is precisely the reinstatement and promotion of a race track at the Nürburgring, and in view of the fact that it took part in the first stage of the tender process with a view to the sale of the Nürburgring assets and has collected, in that context, a wealth of information concerning those assets, might be able to submit to the Commission, in the context of the formal investigation procedure laid down in Article 108(2) TFEU, comments that the Commission might take into account in assessing whether the tender process was open, transparent, non-discriminatory and unconditional and whether the Nürburgring assets were sold, in that context, at a market price. It therefore held, in paragraph 89 of the judgment under appeal, that the applicant’s status of interested party had to be recognised with regard to the second contested decision, and therefore concluded, in paragraph 93 of the judgment under appeal, that, with regard to the second contested decision, the appellant had standing to safeguard its procedural rights under Article 108(2) TFEU.
17 In paragraph 129 of the judgment under appeal, the General Court stated that, in order to be able to rule on the substance of the action, in so far as it sought annulment of the second contested decision and, in particular, on the fifth and eighth pleas alleging infringement of Article 108(2) TFEU and Article 4(4) of Regulation No 659/1999 and the appellant’s procedural rights, it was necessary to examine whether the first to fourth pleas make it possible to establish that, after the preliminary examination stage, the Commission was facing difficulties that required the initiation of a formal investigation procedure.
18 At the conclusion of that examination, the General Court found, in paragraph 176 of the judgment under appeal, that the fifth and eighth pleas, examined by taking account of the arguments put forward by the appellant in the context of the first to fourth pleas, did not make it possible to establish that, after the preliminary examination stage, the Commission was facing difficulties that would have required the initiation of a formal investigation procedure and had, therefore, to be rejected.
19 The General Court also examined and rejected, in paragraphs 182 to 190 and 193 to 197 respectively, the sixth and ninth pleas alleging infringement by the Commission, respectively, of the obligation to state reasons and of the right to sound administration.
20 Consequently, in paragraph 198 of the judgment under appeal, the General Court dismissed the action as in part inadmissible and in part unfounded.
21 The appellant claims that the Court should: - set aside the judgment under appeal; - annul the first and second contested decisions; - in the alternative, refer the case back to the General Court, and - order the Commission to pay the costs of the proceedings at both instances.
22 The Commission contends that the Court should: - set aside paragraphs 73 to 94 of the judgment under appeal, in which the General Court held that the action brought against the second contested decision was admissible; - dismiss that action as being inadmissible; - dismiss the appeal, and - order the appellant to pay the costs of the proceedings at both instances.
23 In support of its appeal, the appellant relies on five grounds of appeal, claiming (i) an error in law in the finding that it was not individually concerned by the first contested decision as a competitor of the beneficiary of the aid at issue, (ii) an error in law in the finding that it was not individually concerned by the first contested decision as a trade association, (iii) an error in law in the finding that it did not have standing to bring an action against the second contested decision, (iv) a failure to state reasons in the judgment under appeal, a distortion of the facts and evidence and an error of law in the examination of the pleas against the Commission’s implied refusal to initiate the formal investigation procedure and (v) an error of law in the General Court’s assessment of the adequacy of the statement of reasons for the second contested decision.
24 The first and second grounds of appeal relate to the General Court’s rejection of the action for annulment of the first contested decision. The third to fifth grounds relate to the General Court’s rejection of the action for annulment of the second contested decision.
25 The first ground of appeal concerns paragraph 56 of the judgment under appeal, which is worded as follows: ‘Furthermore, in so far as the applicant maintains that its position on the market was substantially affected by virtue of its past investments in the Nürburgring race track, it must be observed that the mere fact of having invested in the Nürburgring, in any capacity, is not sufficient to establish that it was present, as an economic operator, on the relevant markets - which it does not, moreover, claim to have been - nor a fortiori that its position on those markets, as an economic operator, was substantially affected by the aid to the sellers that, according to the applicant, rendered its investments pointless. In any event, the applicant does not explain how, in its view, the first contested decision, whereby the buyer of the Nürburgring assets was not obliged to reimburse the aid to the sellers, affected the utility of its alleged investments in the Nürburgring.’
26 By the first part of the first ground of appeal, the appellant criticises the General Court for failing to address, to the requisite legal standard, its arguments concerning the substantial adverse effect on its market position, which, according to the appellant, constitutes an infringement of the obligation to state reasons and of its right to be heard and its right to effective judicial protection.
27 The appellant claims, in particular, that, by stating in the second sentence of paragraph 56 of the judgment under appeal, that it had not explained how the first contested decision had affected the utility of its investments in the Nürburgring, the General Court has failed to take account of the argument put forward in paragraph 32 of its reply before the General Court that, in essence, those investments had been frustrated and diverted from their purpose, which was to promote the operation of the traditional Nürburgring race track and ensure that organisers of sporting events had access to it on terms favourable to the public interest, to finance hotel and leisure facilities unrelated to motor sport by means of a cross-subsidy. The appellant added that the sale of the Nürburgring assets to Capricorn perpetuated, as a direct unlawful consequence, the adverse effect on its market position deriving from the unlawful aid.
28 It takes the view that, because of the close connection between its investments in the Nürburgring race track and its operation on terms favourable to the public interest, it is so closely linked to the operation of that race track that it has acquired a position on the relevant market for the operation of tracks for motor racing. It recalls, in that regard, that, before the General Court, it drew attention to the fact that the Nürburgring race track represents a natural monopoly. However, the General Court overlooked the fact that there can only be one potential competitor for the operation of a natural monopoly. In that respect, the investments made by the appellant are the most direct way of acquiring a position on the market. For the same reasons, the assertion in the first sentence of paragraph 56 of the judgment under appeal that the appellant had not claimed that its market position had been substantially affected by the aid to the sellers is also incorrect.
29 By the second part of the first ground of appeal, the appellant submits that the General Court relied on a misinterpretation of the fourth paragraph of Article 263 TFEU to reach the finding, in paragraph 56 of the judgment under appeal, that an investment made in any capacity is not sufficient to establish that the investor is present, as an economic operator, on the market benefiting from the investments.
30 The Commission contends that the first ground of appeal is ineffective and, in any event, unfounded.
31 For the purpose of examining the two parts of the first ground of appeal, it must be recalled that, according to the Court’s settled case-law, persons other than those to whom a decision is addressed may claim to be individually concerned 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 (judgments of 15 July 1963, Plaumann v Commission, 25/62, EU:C:1963:17, p. 107; of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 93; and of 15 July 2021, Deutsche Lufthansa v Commission, C‑453/19 P, EU:C:2021:608, paragraph 33).
32 If, as in the present case, the appellant calls into question the merits of a decision appraising the aid after the formal investigation procedure, the mere fact that it may be regarded as concerned, within the meaning of Article 108(2) TFEU, cannot suffice to render the action admissible. It must then demonstrate that it has a particular status, for the purposes of the case-law recalled in the preceding paragraph. That applies in particular where the applicant’s position on the market concerned is substantially affected by the aid to which the contested decision relates (judgments of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 97, and of 15 July 2021, Deutsche Lufthansa v Commission, C‑453/19 P, EU:C:2021:608, paragraph 37).
33 As the General Court itself recalled in paragraph 48 of the judgment under appeal, in addition to the undertaking in receipt of aid, competing undertakings have been recognised as individually concerned by a Commission decision terminating the formal investigation procedure where they have played an active role in that procedure, provided that their position on the market is substantially affected by the aid which is the subject of the contested decision (judgments of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 98, and of 15 July 2021, Deutsche Lufthansa v Commission, C‑453/19 P, EU:C:2021:608, paragraph 38).
34 However, the mere fact that the investor has made investments in a specific infrastructure item does not mean that it is active in any market related to the operation of that infrastructure. That is all the more true where those investments are intended to promote the operation of that infrastructure by different operators on terms that serve the public interest, as was the case, according to the appellant’s assertions, as regards the investments that it claims to have made in the Nürburgring race track.
35 It follows that the General Court did not err in law by making the finding, in essence, in paragraph 56 of the judgment under appeal, that the appellant’s arguments relating to the investments which it alleges to have made in the Nürburgring race track were not sufficient to demonstrate that it was individually concerned, within the meaning of the case-law cited in paragraph 31 above, by the first contested decision. Therefore, the second part of the first ground of appeal must be rejected as unfounded.
36 As regards the first part of the first ground of appeal, alleging, in essence, the infringement of the obligation to state reasons by the General Court, it must be borne in mind that, according to settled case-law, the obligation on the General Court to state reasons for its decisions, under Article 36 and the first paragraph of Article 53 of the Statute of the Court of Justice of the European Union, does not require it to provide an account that follows exhaustively and one by one all the arguments put forward by the parties to the dispute. The reasoning may therefore be implicit, on condition that it enables the persons concerned to know why the General Court has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (judgment of 9 September 2008, FIAMM and Others v Council and Commission, C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraph 96 and the case-law cited).
37 It is apparent, by implication but clearly, from paragraph 56 of the judgment under appeal that the General Court considered that the appellant’s arguments regarding the investments that it claims to have made on the Nürburgring race track were not sufficient to demonstrate either that it was present on the relevant market or, yet still, that its competitive position on that market would have been substantially affected by the measure which is the subject of the first contested decision.
38 Therefore, the first part of the first ground of appeal must be rejected as being unfounded, as must this ground of appeal in its entirety.
39 The second ground of appeal concerns paragraph 69 of the judgment under appeal, in which the General Court noted that, with regard to the strict conditions laid down in the judgment of 13 December 2005, Commission v Aktionsgemeinschaft Recht und Eigentum (C‑78/03 P, EU:C:2005:761, paragraphs 53 to 59), it must be held that the applicant had not established that it had occupied, in the context of the formal investigation procedure that preceded the adoption of the first contested decision, a position as negotiator, clearly circumscribed and intimately linked to the subject matter of that decision, on which it was able to demonstrate that it was individually concerned by it.
40 The appellant claims that the General Court infringed the obligation to state reasons and distorted the facts and evidence submitted for its assessment. It submits that it demonstrated, before the General Court, that, in the administrative procedure leading to the adoption of the first contested decision, it played a unique active role in the operation of the Nürburgring race track with a public interest objective. Its position as negotiator, clearly circumscribed and intimately linked to the subject matter of that decision, is comparable to that of the Landbouwschap (body established under public law to protect the common interests of agricultural undertakings, taking into account the public interest; the Netherlands) in the case which gave rise to the judgment of 2 February 1988, Kwekerij van der Kooy and Others v Commission (67/85, 68/85 and 70/85, EU:C:1988:38, paragraphs 20 to 24), and of the International Rayon and Synthetic Fibres Committee in the case which gave rise to the judgment of 24 March 1993, CIRFS and Others v Commission (C‑313/90, EU:C:1993:111, paragraphs 29 and 30).
41 The appellant negotiated with the Commission the aid which is the subject of the first contested decision, with a view to guaranteeing for its members, in a manner consistent with the law on State aid and in the public interest, the operation of that race track and to ensuring that its investments would continue to contribute to that objective. Those factual circumstances differentiate the appellant from all other persons, in such a way as to confer on it legal standing to bring an action against the first contested decision.
42 Therefore, the General Court should not have ruled out the legal standing of the appellant without explaining why - in the light of the pleas, evidence and detailed arguments relied on by the appellant - the conditions necessary for it to be recognised as having that legal standing were not satisfied. The reference made by the General Court, in paragraph 69 of the judgment under appeal, to the ‘strict conditions laid down in the judgment of 13 December 2005, Commission v Aktionsgemeinschaft Recht und Eigentum (C‑78/03 P, EU:C:2005:761, paragraphs 53 to 59)’, does not explain which conditions the General Court examined. The General Court therefore vitiated its judgment by a failure to state reasons or a lack of adequate reasons, which also constitutes an infringement of the right to a fair hearing and the right to effective judicial protection. Moreover, by taking the view that the appellant ‘has not established’ that it occupied, in the context of the formal investigation procedure that preceded the adoption of the first contested decision, a position as negotiator, without, however, explaining what evidence produced by the appellant it had examined, the General Court distorted the facts and evidence.
43 The Commission submits that the second ground of appeal is unfounded and should be rejected.
44 It is apparent from paragraph 58 of the judgment under appeal that, before the General Court, the appellant had argued, inter alia, that it had been conducting negotiations to defend the interests of German motor sport, in particular concerning the reinstatement and promotion of a race track at the Nürburgring, and that it had participated in the administrative procedure preceding the option of the first contested decision by lodging a complaint and producing written comments and evidence.
45 In paragraphs 66 and 67 of the judgment under appeal, the General Court summarised the considerations that led the Court of Justice to declare admissible the actions in the cases that gave rise to the judgments of 2 February 1988, Kwekerij van der Kooy and Others v Commission (67/85, 68/85 and 70/85, EU:C:1988:38), and of 24 March 1993, CIRFS and Others v Commission (C‑313/90, EU:C:1993:111). In addition, in paragraph 68 of that judgment, the General Court stated, referring to its own case-law and to that of the Court of Justice, that the fact that a trade association filed the complaint that initiated the formal investigation procedure or submitted comments during that procedure was not sufficient to confer on that association the particular status of negotiator.
46 Finally, in paragraph 69 of the judgment under appeal, the General Court referred to the ‘strict conditions laid down in the judgment of 13 December 2005, Commission v Aktionsgemeinschaft Recht und Eigentum (C‑78/03 P, EU:C:2005:761, paragraphs 53 to 59)’, in which the Court of Justice had itself referred to the particular circumstances of the cases that gave rise to the judgments of 2 February 1988, Kwekerij van der Kooy and Others v Commission (67/85, 68/85 and 70/85, EU:C:1988:38), and of 24 March 1993, CIRFS and Others v Commission (C‑313/90,EU:C:1993:111), and explained how those circumstances could be distinguished from the situation of a party concerned having taken an active part in the procedure that led to the adoption of a decision on State aid.
47 Those references to the case-law explain why the appellant’s arguments, which are summarised in paragraph 58 of the judgment under appeal, were not sufficient to confer on it the status of negotiator within the meaning of the case-law cited in paragraphs 66 to 69 of the judgment under appeal.
48 Therefore, the reasons stated by the General Court in paragraphs 65 to 69 of the judgment under appeal, although relatively succinct, are sufficient to enable the appellant to understand the grounds for rejection of the arguments that it put forward in support of the admissibility of its action for annulment of the first contested decision, based on the case-law arising from the judgments of 2 February 1988, Kwekerij van der Kooy and Others v Commission (67/85, 68/85 and 70/85, EU:C:1988:38), and of 24 March 1993, CIRFS and Others v Commission (C‑313/90, EU:C:1993:111).
49 The claim that the General Court distorted the facts and evidence must be dismissed as being inadmissible, since the appellant has not identified the precise elements which the General Court distorted or the manner in which it distorted them (see, to that effect, order of 1 February 2017, Vidmar and Others v Commission, C‑240/16 P, EU:C:2017:89, paragraphs 26 and 27).
50 It is apparent from the foregoing considerations that the second ground of appeal must be rejected as being in part inadmissible and in part unfounded.
51 Since the first and second grounds of appeal must be rejected, the appeal must be dismissed to the extent that it seeks to set aside the judgment under appeal, in so far as, by that judgment, the General Court rejected the action for annulment of the first contested decision.
52 Without bringing a cross-appeal, the Commission asks the Court to examine the admissibility of the action, in so far as it seeks annulment of the second contested decision, since, in its view, the General Court erred in law in its interpretation and application of the concept of ‘interested party’ within the meaning of Article 108(2) and (3) TFEU and Article 1(h) of Regulation No 659/1999 and wrongly held that the appellant was entitled to claim that status.
53 It must be recalled in that regard that when the Court is hearing an appeal under Article 56 of the Statute of the Court of Justice of the European Union, it is required, if need be of its own motion, to adjudicate on the admissibility of an action for annulment and therefore on the public-policy plea based on non-compliance with the condition set out in the fourth paragraph of Article 263 TFEU (see, to that effect, judgment of 29 July 2019, Bayerische Motoren Werke and Freistaat Sachsen v Commission, C‑654/17 P, EU:C:2019:634, paragraph 44 and the case-law cited).
54 It is apparent from paragraphs 84 to 89 of the judgment under appeal that the General Court held, in essence, that the appellant was entitled to seek annulment of the second contested decision as an interested party and in order to safeguard its procedural rights under Article 108(2) TFEU and Article 6(1) of Regulation No 659/1999.
55 In the first place, the Commission submits that the General Court gave a partial reading of the Court’s case-law in this area and disregarded the fact that the status of interested party presupposes the existence of a competitive relationship.
56 However, that argument must be rejected. The concept of ‘interested party’ is defined in Article 1(h) of Regulation 659/1999 as referring to ‘any person, undertaking or association of undertakings whose interests might be affected by the granting of aid, in particular the beneficiary of the aid, competing undertakings and trade associations’. That provision reproduces the definition of ‘parties concerned’ within the meaning of Article 108(2) TFEU, as established by the case-law of the Court (judgment of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 41 and the case-law cited).
57 As the Advocate General observed in point 30 of his Opinion, while an undertaking in competition with the beneficiary of an aid measure indisputably acts as an ‘interested party’ within the meaning of Article 108(2) TFEU, an undertaking that is not a competitor of the beneficiary of the aid at issue can be categorised as having that status, if it can demonstrate that its interests could be adversely affected by the grant of that aid. According to the Court’s case-law, means demonstrating that aid is likely to have a specific effect on its situation (see, to that effect, judgments of 24 May 2011, Commission v Kronoply and Kronotex, C‑83/09 P, EU:C:2011:341, paragraph 65, and of 27 October 2011, Austria v Scheucher-Fleisch and Others, C‑47/10 P, EU:C:2011:698, paragraph 132).
58 Therefore, the Court cannot accept the Commission’s argument that it follows from the judgments of 9 July 2009, 3F v Commission (C‑319/07 P, EU:C:2009:435); of 24 May 2011, Commission v Kronoply and Kronotex (C‑83/09 P, EU:C:2011:341); and of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci (C‑622/16 P to C‑624/16 P, EU:C:2018:873), that the status of interested party presupposes a competitive relationship.
59 As is apparent from paragraph 104 of the judgment of 9 July 2009, 3F v Commission (C‑319/07 P, EU:C:2009:435), the Court recognised that a trade union was an interested party on the basis that the measures at issue in that case could affect its interests and those of its members during collective negotiations.
60 As regards the judgment of 24 May 2011, Commission v Kronoply and Kronotex (C‑83/09 P, EU:C:2011:341, paragraph 64), the Court did not base its analysis on a competitive relationship between the beneficiary of the aid and the applicant undertaking in that case, but relied on the fact that the latter undertaking required the same raw material for its production process as that beneficiary.
61 Finally, the judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci (C‑622/16 P to C‑624/16 P, EU:C:2018: 873, paragraph 43), relied on by the Commission, is of no relevance. Paragraph 43 of that judgment did not discuss whether a person or undertaking was an interested party, but instead whether, in the light of a Commission decision which left intact all of the effects of the national measures at issue establishing an aid scheme, the legal position of a complainant who alleges that these measures place it at a competitive disadvantage had been directly affected.
62 In the second place, the Commission submits that the General Court’s recognition of the appellant’s status as an interested party is based, as is apparent from paragraph 88 of the judgment under appeal, on the fact that the appellant could have had potentially relevant information. However, the mere fact that a person possesses information that might be relevant in the context of a formal investigation procedure regarding a measure to determine whether it constitutes unlawful State aid is not sufficient to confer such status on that person.
63 It is true that, in paragraph 86 of the judgment under appeal, the General Court referred to the appellant’s status as an ‘association whose non-profit-making objective is the reinstatement and promotion of a race track at the Nürburgring and the promotion of the collective interests of its members, some of which organise sporting events on that race track’, and to the fact that the appellant’s interests ‘may have been specifically affected by the granting of aid that, according to the [appellant], ought to have been established in the second [contested decision], since the tender process, in its view, was not open, transparent, non-discriminatory and unconditional and did not lead to the sale of the Nürburgring assets to Capricorn at a market price’.
64 However, it is apparent from paragraph 88 of that judgment that, in order to recognise the appellant as an ‘interested party’, within the meaning of Article 1(h) of Regulation No 659/1999, the General Court ultimately relied on the fact that it could not ‘be excluded that the applicant, in view of its objective, which is precisely the reinstatement and promotion of a race track at the Nürburgring, and in view of the fact that it has taken part in the first stage of the tender process and has collected, in that context, a wealth of information concerning the Nürburgring assets, might be able to submit to the Commission, in the context of the formal investigation procedure laid down in Article 108(2) TFEU, comments that the Commission might take into account in assessing whether the tender process was open, transparent, non-discriminatory and unconditional and whether the Nürburgring assets were sold, in that context, at a market price’.
65 As the Advocate General observed, in essence, in points 33 and 34 of his Opinion, the fact that a person has information that could be relevant in the context of a formal investigation procedure does not mean that the interests of that person could be affected by the grant of that aid and that that aid is likely to have a specific effects on his or her situation, for the purposes of the case-law cited in paragraph 57 above. Therefore, simply being in possession of relevant information is not sufficient to categorise that person as an ‘interested party’.
66 However, it is apparent from the file at first instance, which was sent to the Court in accordance with Article 167(2) of the Rules of Procedure of the Court of Justice that, before the General Court, the appellant claimed, inter alia, to be an association that defends the interests of German motor sport in relation specifically to the Nürburgring race track, that its central objective is to ensure the operation of that race track under economic conditions oriented towards the public interest so as to allow access to it for sporting and other events and that Capricorn pursues a concept aimed at maximising profits, which is at odds with the appellant’s objectives.
67 In the light of those arguments, which are not disputed by the Commission, it must be accepted that the alleged grant of aid to Capricorn in connection with the acquisition of the Nürburgring could affect the interests of the appellant and its members, such that it must be classified as an ‘interested party’ within the meaning of Article 1(h) of Regulation No 659/1999.
68 Accordingly, it must be held that the action for annulment of the second contested decision is admissible.
69 By its third ground of appeal, the appellant challenges paragraph 83 of the judgment under appeal, in which the General Court held that neither the applicant nor any of its members could, for the same reasons as those given in relation to the first contested decision, be regarded as being individually concerned by the second contested decision.
70 That ground of appeal concerns grounds of the judgment under appeal that constitute the necessary support for its operative part. As is apparent from paragraph 93 of the judgment under appeal, the General Court held that the appellant was entitled to seek the annulment of the second contested decision and, as is apparent from paragraph 68 above, there is no need to call that conclusion into question.
71 Therefore, the third ground of appeal must be rejected as ineffective.
72 The fourth ground of appeal is divided into five parts. It is appropriate to begin by examining the second, fourth and fifth parts of that ground of appeal.
73 By the second part of the fourth ground of appeal, the appellant submits that, in paragraphs 152 to 156 of the judgment under appeal, the General Court distorted a letter from Deutsche Bank AG of 10 March 2014 in support of Capricorn’s offer, by concluding that it did not appear that the Commission should have had doubts as to the binding nature of that letter. The appellant recalls that, before the General Court, it had drawn attention to the fact that that letter contained, on the last page, an ‘important notice’ from which it was apparent that the terms and conditions set out therein were not supposed to form the basis of legally binding obligations. Other passages in the same notice confirm that assessment. According to the appellant, if the General Court had not distorted the letter from Deutsche Bank of 10 March 2014, it would have found that Deutsche Bank did not consider itself bound by that letter.
74 In the fourth part of the fourth ground of appeal, the appellant submits that the General Court’s statement, in paragraph 166 of the judgment under appeal, that the facts subsequent to 11 March 2014 were not relevant to the examination of whether aid might have been granted to Capricorn in the context of the tender process, is evidence of an error of law and of a distortion of the evidence by the General Court and, moreover, contains an inadequate statement of reasons.
75 According to the appellant, at the time of the adoption of the second contested decision, the Commission possessed detailed information and evidence showing that Capricorn had obtained an unjustified advantage, in the context of a non-transparent and discriminatory tender process, which led to it being awarded the Nürburgring assets even though it was not solvent. That information should have led the Commission to initiate the formal investigation procedure, contrary to what the General Court held in paragraph 167 of the judgment under appeal, even in the absence of a new complaint filed by the appellant.
76 Finally, the fifth part of the fourth ground of appeal concerns paragraphs 173 to 176 of the judgment under appeal, in which the General Court rejected the appellant’s arguments which were summarised in paragraphs 170 and 171 of that judgment. According to the appellant, the General Court merely summarised its arguments in paragraphs 170 of the judgment under appeal, without examining them or stating its reasons for rejecting them. The same is true of the arguments relating to the lease of the Nürburgring assets, referred to in paragraph 171 of the judgment under appeal. The Court merely stated that the rent was paid to a company independent of the sellers and that the sale price of the Nürburgring assets was reduced by the amount of the rent payments, which were set against that price until the sale became perfect. The General Court simply held, without providing any explanation, that the Commission should not have had doubts as to the existence of an unjustified advantage, which constitutes a distortion of the evidence put forward by the appellant and demonstrates an error of law in the application of Article 107 TFEU and Article 108(3) TFEU.
77 The Commission considers, as its principal argument, that the second part of the fourth ground of appeal is ineffective. In its view, the findings in paragraphs 152, 154 and 155 of the judgment under appeal, which are not disputed by the appellant, are sufficient to support the General Court’s view that it did not appear that the Commission ought to have had doubts as to the binding nature of the letter from Deutsche Bank of 10 March 2014, assuming that, in paragraph 153 of that judgment, the General Court distorted the facts.
78 In any event, the third part of the ground of appeal is unfounded. The letter from Deutsche Bank of 10 March 2014 uses the term ‘commitment’ on several occasions. In reality, the appellant is challenging only the General Court’s interpretation of that term in the context of other statements contained in the same letter. That is a matter for the General Court’s definitive assessment of the facts, which also includes the interpretation of contracts concluded under national law.
79 As regards the fourth part of the fourth ground of appeal, the Commission submits that it is based on a misreading of paragraphs 165 to 169 of the judgment under appeal. In that judgment, the General Court answered in the negative the question of whether the appellant’s claim, summarised in paragraph 163 of that judgment, that Capricorn was replaced by a sub-purchaser in a non-transparent procedure for the resale of the Nürburgring assets on 13 August 2014, needed to be examined in the second contested decision. According to the Commission, that answer is correct, in so far as circumstances subsequent to the sale of the Nürburgring assets are not relevant to the assessment of whether the Nürburgring’s insolvency administrator, at the time of that sale, acted like a market economy investor. Such an investor could not have taken into consideration facts, such as those alleged by the appellant, which did not occur until after the conclusion of the sale. Even if, when adopting the second contested decision, the Commission had been in possession of the information relied on by the appellant in its arguments, that information is irrelevant for the application of the market economy vendor principle to the sales agreement of 11 March 2014, concluded between the Nürburgring’s insolvency administrator and Capricorn.
80 Finally, in response to the fifth part of the fourth ground of appeal, the Commission contends that the appellant’s argument, summarised in paragraphs 170 and 171 of the judgment under appeal, did not call into question compliance with the market economy vendor test. In particular, the arguments summarised in paragraph 170 of that judgment relate to events subsequent to the conclusion of that contract of sale. The same is true of the conclusion of a lease, referred to in paragraph 171 of that judgment. In paragraphs 173 to 174 of that judgment, the General Court provided a concise but clear statement of reasons to justify the rejection of those arguments. It was logical for the General Court to refer to paragraphs 138 to 158 of the judgment under appeal, since the General Court stated therein that the sale price of the Nürburgring assets was determined in the context of an open and transparent tender process and that there was no doubt about the financing of the successful offer. As regards the appellant’s argument alleging distortion of the evidence, it is impossible to determine the basis of that assertion, in particular since the appellant itself acknowledges that the General Court correctly summarised its arguments in paragraphs 170 and 171 of the judgment under appeal.
81 It should be noted, as a preliminary point, that, contrary to what the Commission claims, the second part of the fourth ground of appeal relates not only to paragraph 153 of the judgment under appeal but also to paragraphs 152 and 154 to 156 of that judgment. Therefore, it cannot be rejected as ineffective.
82 For the purposes of examining that part of the fourth ground of appeal, it must be recalled that, as is apparent from paragraph 151 of the judgment under appeal, the investors interested in purchasing the Nürburgring assets had been informed that they would be selected, inter alia, on the basis of the probability of closing the transaction. One of the factors having to be taken into consideration in that regard was the secured financing of their offer, supported by confirmation of financing partners.
83 It is apparent from recitals 50, 273 and 278 of the final decision that the Commission considered that financing of Capricorn’s offer was secured, since Capricorn had produced the letter from Deutsche Bank of 10 March 2014, which appeared to be binding.
84 In paragraphs 152 to 155 of the judgment under appeal, the General Court assessed whether the Commission’s examination, reflecting the German authorities’ analysis, was of such a kind as to rule out any doubt as to the binding nature of that letter and reached the conclusion, in paragraph 156 of that judgment, that that was indeed the case.
85 It is therefore necessary to examine whether, as the appellant claims, in the context of that examination, the General Court distorted the content of that letter.
86 It must be recalled, in that regard, that there is distortion of the clear sense of the evidence where, without recourse to new evidence, the assessment of the existing evidence appears to be clearly incorrect (judgments of 18 January 2007, PKK and KNK v Council, C‑229/05 P, EU:C:2007:32, paragraph 37, and of 18 July 2007, Industrias Químicas del Vallés v Commission, C‑326/05 P, EU:C:2007:443, paragraph 60).
87 In the present case, it is apparent from reading the letter from Deutsche Bank of 10 March 2014, as produced by the Commission before the General Court and included in the file at first instance, that it contains, on the first page, a clear indication that the ‘commitment’ contained in that letter is subject to the conditions set out, inter alia, in the ‘Term sheet’ annexed to that letter as Annex A.
88 As the appellant rightly points out, the end of that annex contains an ‘important notice’ which indicates, inter alia, that - ‘this term sheet is for discussion purposes only as it is not intended to create any legally binding obligations between us … We therefore do not accept any liability for any direct, consequential or other loss arising from reliance on this document’.
89 It is clear from that information that the letter from Deutsche Bank of 10 March 2014 did not impose any binding financing commitment on the bank that issued it to the benefit of Capricorn.
90 That conclusion is, moreover, confirmed by the statement in paragraph 9 of page 5 of that letter, entitled ‘Governing law and jurisdiction’, which refers to ‘any non-contractual obligations’ arising from that letter, without referring to contractual obligations, precisely because that letter was not supposed to create such obligations.
91 In that regard, it is of little consequence that, as the General Court noted in paragraphs 152 and 153 of the judgment under appeal, that letter states that Deutsche Bank is ‘willing to underwrite’ a loan of EUR 45 million to Capricorn and that it refers, on several occasions, to the ‘commitment’ made by Deutsche Bank with regard to Capricorn, since it is clear from the information referred to in paragraph 88 above that that ‘commitment’ did not create legally binding obligations, in the same way as the previous letters from Deutsche Bank referred to by the Court in paragraph 154 of the judgment under appeal. The fact that the non-binding nature of Deutsche Bank’s letter of 10 March 2014 was referred to in different terms to the most recent letters does not call this conclusion into question.
92 It follows that, as the appellant submits in the second part of the fourth ground of appeal, the General Court distorted the content of the letter from Deutsche Bank of 10 March 2014 and that, accordingly, that part is well founded.
93 In the fourth part of the fourth ground of appeal, the appellant alleges, in essence, that the General Court erred in law by rejecting, in paragraph 166 of the judgment under appeal, the arguments summarised in paragraphs 162 and 163 of that judgment.
94 As the Advocate General noted in point 108 of his Opinion, the appellant essentially contended before the General Court that, following the completion, on 11 March 2014, of the sale of the Nürburgring assets to Capricorn, Capricorn and the sellers signed a guarantee agreement for the payment of the sale price in instalments. Under the terms of that agreement, in the event of continued non-payment of the second instalment of the sale price, the assets would have to be resold, as proved to be the case.
95 In paragraph 166 of the judgment under appeal, the General Court recalled that the aid, which, according to the appellant, should have been established by the Commission in the second contested decision, was granted to Capricorn on 11 March 2014, the date of the sale of those assets to Capricorn, at a price allegedly lower than the market price. The General Court therefore took the view that facts subsequent to that date were not relevant to the examination of whether aid might have been granted to Capricorn in the context of the tender process. It added, in paragraph 167 of the judgment under appeal, that had the applicant wished that the Commission also investigate whether new aid stemmed from the alleged continuation of the sales process, it should have lodged a new complaint in that respect.
96 In that regard, it is true that if it were to be considered that Capricorn was granted aid corresponding to the difference between the market price of the Nürburgring assets and the purchase price paid by Capricorn for those assets in the context of a tender process which did not meet the requirements of openness, transparency, unconditionality and non-discrimination, such aid would necessarily have been granted on 11 March 2014, which is the date on which those assets were awarded to Capricorn and on which the relevant sale contract was concluded.
97 However, contrary to what the General Court held in paragraph 166 of the judgment under appeal, that does not mean that facts subsequent to that date were by definition entirely irrelevant to the assessment of whether such aid had actually been granted.
98 It must be borne in mind that the lawfulness of a decision concerning State aid falls to be assessed in the light of the information available to the Commission at the time when the decision was adopted (see, to that effect, judgment of 20 September 2017, Commission v Frucona Košice, C‑300/16 P, EU:C:2017:706, paragraph 70 and the case-law cited). As the Advocate General observed, in essence, in points 102 and 103 of his Opinion, the preliminary stage of the State aid investigation procedure ends when the Commission adopts one of the decisions provided for in Article 4 of Council Regulation (EC) No 659/1999, and, as such, it is possible that new and relevant facts that the Commission was previously unaware of could emerge after the end of the tender process, but before the adoption of the relevant Commission decision.
99 In particular, as is apparent from paragraphs 82 and 83 above, the fact that the financing of Capricorn’s offer had been secured was at least one of the factors which justified the award of the Nürburgring assets to it.
100 Although the facts relied on by the appellant and summarised in paragraph 94 above are subsequent to the award of the Nürburgring assets to Capricorn, if they were established they would be likely to cast doubt on the merits of the findings of those responsible for the tender process, according to which the financing of Capricorn’s offer was secured and that the procedure was therefore transparent and non-discriminatory, bearing in mind that, as is apparent from paragraph 157 of the judgment under appeal, another offer was rejected for lack of financing.
101 The question arises as to why, if Capricorn’s offer had secured financing, it had to renegotiate the payment of the sale price by instalments and, ultimately, was unable to pay the second instalment, which led to the resale of the Nürburgring assets.
102 It follows that, by ruling out the relevance of the facts alleged by the appellant and summarised in paragraph 94 above, solely on the ground that they were subsequent to the sale of the Nürburgring assets to Capricorn, the General Court erred in law. Accordingly, the fourth part of the fourth ground of appeal is well founded.
103 Finally, by the fifth part of the fourth ground of appeal, the appellant submits, in essence, that the General Court’s rejection, in paragraphs 173 to 176 of the judgment under appeal, of its arguments summarised in paragraphs 170 and 171 of that judgment is vitiated by a defective or inadequate statement of reasons.
104 It should be noted in that regard that, in paragraph 170 of the judgment under appeal, the General Court summarised four arguments put forward by the appellant in the third part of the third plea of its action. According to the General Court, those arguments sought to demonstrate that both the purchase price of the Nürburgring assets by Capricorn and the arrangements for payment of that price involved aid, since (i) EUR 6 million out of the gross operating surplus of the Nürburgring manager had to be set against the sale price, although that manager had indicated in 2013 zero expected profits on the Nürburgring assets, (ii) payment of the second instalment of the sale price was postponed, (iii) the EUR 25 million penalty stipulated in the purchase agreement had not been recovered and (iv) the Nürburgring assets were sold to a sub-purchaser in the context of a non-transparent process.
105 In paragraph 171 of that judgment, the General Court summarised an additional argument put forward by the appellant in the same context that the contract under which the Nürburgring assets were leased to Capricorn for a period starting on 1 January 2015 with a view to structuring a temporary situation corresponding to the possible realisation of the condition to which the sale of the Nürburgring assets was subject, namely the adoption by the Commission of a decision ruling out any risk that the buyer of those assets might be required to reimburse the aid to the sellers, was not itself subject to an open, transparent, non-discriminatory and unconditional tender process, such that the rent payments under that lease did not correspond to the market price and involved new aid. The sellers and Capricorn agreed that the rent payments under that lease would be set against the sale price of the Nürburgring assets until the sale became perfected.
106 In response to those arguments, the General Court merely observed, in paragraph 173 of the judgment under appeal, that ‘for the reasons set out in paragraphs 138 to 158 [of that judgment], it cannot be considered that the Commission should have had doubts as to whether the tender process was transparent and non-discriminatory’. It added, in paragraph 174 of that judgment, that it also followed from those reasons that ‘the examination carried out by the Commission that led to the adoption of the second [contested decision] was of such a kind as to rule out the presence of doubts as to the possible existence of an advantage conferred on the buyer in the context of the lease of the Nürburgring assets or the terms for the payment of the sale price of those assets’.
107 As the Advocate General observed in point 115 of his Opinion, contrary to the requirements of the case-law cited in paragraph 36 above, that statement of reasons does not explain, even implicitly, the appellant’s arguments summarised in paragraphs 170 and 171 of the judgment under appeal and does not explain the General Court’s reasoning, so as to allow the interested parties to know the grounds of the decision adopted and the Court of Justice to exercise its power of review.
108 The grounds set out in paragraphs 138 to 158 of the judgment under appeal, to which the General Court referred in paragraph 173 of that judgment, concern, first, the lack of transparency and the discriminatory nature of the tender process in view, in particular, of the lack of transparency of financial data, the lack of transparency and the discriminatory nature of the assessment criteria and the application thereof as well as the continuation of the sales process after the sale of the Nürburgring assets to Capricorn and, second, the issue of the financing of the latter’s offer. They do not, therefore, explain why the appellant’s arguments summarised in paragraphs 170 and 171 of that judgment have been rejected.
109 Accordingly, it must be concluded that the judgment under appeal is vitiated by a failure to state reasons as regards the General Court’s rejection of those arguments. It follows that the fifth part of the fourth ground of appeal is well founded.
110 In those circumstances, without it being necessary to examine the first and third parts of the fourth ground of appeal, or the fifth ground of appeal, the appeal must be upheld and the judgment under appeal set aside in so far as, by that judgment, the General Court dismissed the action for annulment of the second contested decision.
111 In accordance with the second sentence of the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, if the decision of the General Court is set aside, the Court of Justice may itself give final judgment in the matter, where the state of the proceedings so permits.
112 In the present case, in the light, in particular, of the fact that the action for annulment brought by the appellant in Case T‑373/15 is based on grounds which have been the subject of an adversarial debate before the General Court and the examination of which does not require the adoption of any additional measure of organisation of procedure or investigation of the case, the Court of Justice considers that that action is ready for adjudication and that a final ruling must be given on it (see, by analogy, judgment of 8 September 2020, Commission and Council v Carreras Sequeros and Others, C‑119/19 P and C‑126/19 P, EU:C:2020:676, paragraph 130), within the limits of the matter before it, namely the action for annulment of the second contested decision (see, to that effect, judgment of 1 July 2008, Chronopost and La Poste v UFEX and Others, C‑341/06 P and C‑342/06 P, EUC:2008:375, paragraph 134).
113 It must be borne in mind that the second contested decision is a decision not to raise objections under Article 4(3) of Regulation No 659/1999, the legality of which depends on whether there are doubts as to the compatibility of the aid at issue with the internal market.
114 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 108(2) TFEU 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 (judgment of 24 May 2011, Commission v Kronoply and Kronotex, C‑83/09 P, EU:C:2011:341, paragraph 47 and the case-law cited).
115 In that regard, it should be noted that it is not for the European Union judicature to interpret an action challenging exclusively the merits of an aid assessment decision as such as seeking, in reality, to ensure the respect of the procedural rights available to the applicant under Article 108(2) TFEU, where the applicant has not expressly raised a plea to that effect (see, to that effect, judgment of 24 May 2011, Commission v Kronoply and Kronotex, C‑83/09 P, EU:C:2011:341, paragraph 55). However, 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 set out in Article 108(2) TFEU, thereby infringing its procedural rights, even though the existence of doubts concerning the compatibility of that aid with the internal market required it to do so. In order to have its action for annulment upheld, the applicant may therefore invoke any plea to show that the assessment of the information and evidence which the Commission had at its disposal during the preliminary examination stage should have raised such doubts, without the use of those arguments changing the subject matter of the application. It follows that the European Union judicature can examine arguments which the applicant has put forward regarding the substance, in order to ascertain whether strands of those arguments additionally support a plea, also raised by that applicant, which expressly alleges the existence of doubts justifying initiation of the formal investigation procedure (see, to that effect, judgment of 24 May 2011, Commission v Kronoply and Kronotex, C‑83/09 P, EU:C:2011:341, paragraphs 56 and 59).
116 In the present case, the appellant has already been recognised as an ‘interested party’, within the meaning of Article 1(h) of Regulation No 659/1999, in paragraph 67 above. The appellant has relied, in support of its action, on nine grounds of appeal. With the exception of the seventh ground of appeal, which has been put forward in support of the action for annulment of the first contested decision, the other grounds of appeal have been put forward in support of the action for annulment of the second contested decision.
117 The fifth and eighth grounds of appeal expressly allege the infringement of the appellant’s procedural rights, in that the Commission refrained from initiating the formal investigation procedure laid down in Article 108(2) TFEU, despite the fact that the sale of the Nürburgring assets at a price lower than their market price should have led it to the conclusion that aid had been granted to the buyer.
118 In order to rule on those grounds of appeal, in accordance with the case-law cited in paragraph 115 above, it is appropriate to examine, first and in conjunction, the first and third parts of the first ground of appeal and the second ground of appeal, alleging, in essence, the Commission’s erroneous assessment of the confirmation of financing of Capricorn’s offer.
119 By the first and third parts of its first ground of appeal and by its second ground of appeal, the appellant claims that the Commission’s findings in recitals 50, 51, 266, 271 and 273 of the final decision, that Capricorn had submitted a financial commitment from Deutsche Bank in respect of a loan of EUR 45 million, are manifestly incorrect since it is clear from the wording of the letter from Deutsche Bank of 10 March 2014 that it was not binding.
120 The appellant adds that footnote 79 of the final decision shows that the Commission was aware of the agreement, referred to in paragraph 94 above, concluded on 13 August 2014 between the Nürburgring’s insolvency administrator, the sellers and Capricorn, and providing, inter alia, for the deferral of payment of the second instalment of the sale price by Capricorn. That agreement, it claims, demonstrates the absence of confirmation of financing of Capricorn’s offer.
121 The Commission disputes those arguments. It refers to the wording of the letter from Deutsche Bank of 10 March 2014, which mentions, on several occasions, a ‘commitment’ from Deutsche Bank, and therefore considers that it did not make a manifest error of assessment with respect to that letter.
122 As regards the agreement of 13 August 2014, it states that, when the final decision was adopted, it was not in possession of the text of that agreement, which was not sent to it during the administrative procedure. The information in footnote 79 of the final decision is taken from a statement from the Federal Republic of Germany. In any event, it states that it did not base the second contested decision on the fact that proof of the financing provided by Deutsche Bank still existed at the time that decision was adopted.
123 It should be noted that, in order to rule out the existence of unlawful aid granted to Capricorn when it acquired the Nürburgring assets, the Commission had to satisfy itself that that acquisition was made at a price corresponding to the market price, which would be the case if it could be confirmed that the tender process was open, transparent, non-discriminatory and unconditional.
124 As has already been noted in paragraph 82 above, one of the factors taken into consideration for the purposes of selecting the buyer of the Nürburgring assets was the proof of financing of its offer.
125 It is apparent from recital 116 of the final decision that another tenderer, which filed a complaint with the Commission, had offered, in the context of the tender process, a purchase price for all of the Nürburgring assets which was higher than that offered by Capricorn. It is apparent from recital 272 of the final decision that that offer was rejected for absence of proof of financing.
126 According to recital 273 of the final decision, only two offers were considered to have secured financing, namely Capricorn’s offer and that of one other tenderer. However, since both the amount of secured financing available to that other tenderer and the sale price it offered were lower than those of Capricorn, Capricorn’s bid was ultimately successful.
127 It follows that, if it were to transpire that it had been wrongly decided that Capricorn had guaranteed financing of its offer, whereas, in reality, that was not the case, that fact would be such as to call into question, inter alia, the non-discriminatory nature of the tender process, since it could show that Capricorn had received preferential treatment and its offer was not rejected, unlike at least one other tenderer which was not able to provide evidence of guaranteed financing of its offer.
128 Accordingly, given the doubts surrounding the question of whether the financing of Capricorn’s offer had been secured, which could not be allayed, the Commission was required to initiate the formal investigation procedure and could not adopt a decision not to raise objections, such as the second contested decision.
129 It must be held that the factors relied upon by the appellant demonstrate the existence of such doubts.
130 For the reasons set out in paragraphs 87 to 91 above, the Commission could not have considered the letter from Deutsche Bank of 10 March 2014 to have contained a binding financing commitment.
131 Moreover, as the appellant submits, it is apparent from footnote 79 of the final decision that the second instalment of the sale price was not paid by Capricorn within the prescribed period and that, by an agreement concluded on 13 August 2014 between the Nürburgring’s insolvency administrator, the sellers and Capricorn, the payment of that instalment was deferred to a later date, in return for the payment of default interest by Capricorn and for the provision of additional guarantees. If the financing of Capricorn’s offer had in fact been secured, logically Capricorn would have been in a position to pay the second instalment of the sale price within the prescribed period and would not have had to negotiate the deferral of its payment.
132 Accordingly, without it being necessary to examine the remainder of the arguments put forward by the appellant in support of its action, in so far as it seeks annulment of the second contested decision, it must be concluded that the assessment of whether the sale of the Nürburgring assets to Capricorn involved the grant to Capricorn of aid incompatible with the internal market raised doubts, within the meaning of Article 4 of Regulation No 659/1999, which should have led the Commission to initiate the procedure referred to in Article 108(2) TFEU.
133 The action must therefore be upheld and the second contested decision annulled.
134 Under Article 184(2) of the Rules of Procedure, where the appeal is unfounded or where the appeal is well founded and the Court of Justice itself gives final judgment in the case, the Court is to make a decision as to the costs.
135 According to the first sentence of Article 138(3) of the Rules of Procedure, applicable to appeal proceedings under Article 184(1) thereof, where each party succeeds on some and fails on other heads, the parties are to bear their own costs.
136 In the present case, it is appropriate to apply the latter provision, to the extent that the appeal is dismissed in that it concerns the judgment under appeal in so far as, by that judgment, the General Court dismissed the action for annulment of the first contested decision, but to the extent that the appeal is upheld in that it concerns that judgment under appeal in so far as, by that judgment, the General Court dismissed the action for annulment of the second contested decision, and in so far as the Court of Justice sets aside that decision.
137 Accordingly, the parties must be ordered to bear their own costs.