Judgments nº T-353/15 of Tribunal General de la Unión Europea, June 19, 2019

• Resolution Date: June 19, 2019
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-353/15

(State aid - Individual aid in favour of the Nürburgring complex for the construction of a leisure park, hotels and restaurants as well as for the organisation of motor races - Decision finding the aid to be incompatible with the internal market - Decision finding that the reimbursement of the aid found to be incompatible does not concern the new owner of the Nürburgring complex - Action for annulment - No substantial effect on competitive position - Inadmissibility - Decision finding no State aid after the preliminary examination stage - Action for annulment - Interested party - Legal interest in bringing an action - Admissibility - Breach of procedural rights - No difficulties that would have required the initiation of a formal investigation procedure - Complaint - Sale of the assets of the beneficiaries of the State aid found to be incompatible - Open, transparent, non-discriminatory and unconditional tender process - Diligent and impartial examination - Obligation to state reasons)

In Case T-353/15,

NeXovation, Inc., established in Hendersonville (United States), initially represented by A. von Bergwelt, F. Henkel and M. Nordmann, subsequently by A. von Bergwelt and M. Nordmann, lawyers,

applicant,

v

European Commission, represented by L. Flynn, T. Maxian Rusche and B. Stromsky, acting as Agents,

defendant,

ACTION pursuant to Article 263 TFEU seeking the partial annulment of Commission Decision (EU) 2016/151 of 1 October 2014 on the State aid SA.31550 (2012/C) (ex 2012/NN) implemented by Germany for Nürburgring (OJ 2016 L 34, p. 1),

THE GENERAL COURT (First Chamber, Extended Composition),

composed of I. Pelikánová, President, V. Valančius, P. Nihoul, J. Svenningsen and U. Öberg (Rapporteur), Judges,

Registrar: N. Schall, Administrator,

having regard to the written part of the procedure and further to the hearing on 30 January 2018,

gives the following

Judgment

1. Background to the dispute

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

   2 Between 2002 and 2012, the owners of the Nürburgring (‘the sellers’), namely the public undertakings Nürburgring GmbH, Motorsport Resort Nürburgring GmbH and Congress- und Motorsport Hotel Nürburgring GmbH, were the beneficiaries, mainly from the Land of Rhineland-Palatinate, of support measures regarding the construction of a leisure park, hotels and restaurants as well as the organisation of Formula 1 races.

   A. Administrative procedure and sale of the Nürburgring assets

   3 By letter of 21 March 2012, the European Commission notified the Federal Republic of Germany that it had decided to initiate a formal investigation procedure, under Article 108(2) TFEU, in respect of the various support measures implemented between 2002 and 2012 in favour of the Nürburgring. By that decision, a summary of which was published in the Official Journal of the European Union (OJ 2012 C 216, p. 14), the Commission invited interested parties to submit their comments on the measures concerned.

   4 As a result of the granting of additional support measures which were notified to it by the Federal Republic of Germany, the Commission decided to extend the formal investigation procedure to those new measures. The decision was notified to the Federal Republic of Germany by letter of 7 August 2012. By that decision, a summary of which was published in the Official Journal (OJ 2012 C 333, p. 1), the Commission invited interested parties to submit their comments on those additional measures.

   5 On 24 July 2012, the Amtsgericht Bad Neuenahr-Ahrweiler (Local Court, Bad Neuenahr-Ahrweiler, Germany) made a finding that the sellers were insolvent. On 1 November 2012 it opened insolvency proceedings with no declining of jurisdiction. It was decided to proceed to the sale of the sellers’ assets (‘the sale of the Nürburgring assets’). The sellers designated the auditing firm KPMG AG as legal and financial advisor.

   6 On 1 November 2012, management of the Nürburgring was entrusted to Nürburgring Betriebsgesellschaft mbH, a 100% subsidiary of one of the sellers, Nürburgring GmbH, consisting of the administrators designated by the Amtsgericht Bad Neuenahr-Ahrweiler (Local Court, Bad Neuenahr-Ahrweiler).

   7 On 15 May 2013, a tender process for the sale of the Nürburgring assets was launched (‘the tender process’).

   8 On 23 May 2013, the Commission informed the Federal Republic of Germany and the administrators of the criteria which the tender process was required to meet in order to rule out any element of State aid and informed them of the obligation on the part of the successful buyer to reimburse such advantages as it might receive. Discussions had taken place in this regard between the Commission, the Federal Republic of Germany and the administrators since October 2012.

   9 The tender process was carried out as follows:

   - The launch of the tender process was announced on 14 May 2013 with a press release issued by one of the administrators;

   - A call for tenders was published by KPMG in the Financial Times, the Handelsblatt and on the Nürburgring website on 15 May 2013;

   - 70 entities expressed their interest;

   - By letter of 19 July 2013, all interested investors received documentation on the Nürburgring and were invited to submit an indicative offer for the assets in their entirety, for defined asset clusters or for individual assets;

   - The deadline for the submission of an indicative offer was set successively to 12 September 2013, by letter of 19 July 2013, and then to 26 September 2013, by letter of 12 September 2013; each of those letters indicated that offers submitted after expiry of the deadline would also be considered;

   - At the beginning of February 2014, 24 potential buyers had submitted an indicative offer, including the applicant, NeXovation, Inc., a privately owned US undertaking operating in the information technology, consumer products, energy and automotive fields;

   - For the potential buyers invited to proceed to the next stage of the tender process, including the applicant, the deadline for the submission of confirmatory offers, which had to be fully financed and include a pre-negotiated asset purchase agreement, was set successively to 11 December 2013, by letter of 17 October 2013, and then to 17 February 2014, by letter of 17 December 2013; that last letter indicated that offers submitted after expiry of the deadline would also be considered, but pointed out that the sellers could nevertheless choose the successful buyer shortly after expiry of the deadline for the submission of offers;

   - 13 potential buyers submitted confirmatory offers, four of which submitted an offer for the assets in their entirety, namely Capricorn Nürburgring Besitzgesellschaft GmbH (‘Capricorn’ or ‘the buyer’), a second bidder (‘Bidder 2’), the applicant and a fourth potential buyer;

   - As set out in the letters sent to interested investors on 19 July and 17 October 2013, investors were to be selected on the basis of requirements relating to (i) the maximisation of the total proceeds for all the assets and (ii) transaction security; in accordance with those criteria, in the last stage of the tender process, the offers made by Bidder 2 and by Capricorn were considered, both of which (i) offered to buy all the Nürburgring assets and (ii) had provided proof of the financial solidity of their offers on 7 and 11 March 2014, respectively. Draft transfer agreements were negotiated with both tenderers simultaneously;

   - On 11 March 2014, the committee of the sellers’ creditors, in the context of the sellers’ insolvency proceedings, approved the sale of the Nürburgring assets to Capricorn, which offered EUR 77 million, while Bidder 2 offered between EUR 47 million and EUR 52 million.

   10 On 10 April 2014, the applicant filed a complaint with the Commission, on the ground that the tender process had not been open, transparent, non-discriminatory and unconditional and had not achieved a market price for the sale of the Nürburgring assets, since the assets had been transferred to a domestic tenderer, whose offer was lower than the applicant’s offer and which had been preferred in the tender process. According to the applicant, there was thus aid in favour of Capricorn, corresponding to the difference between the purchase price it had to pay for the Nürburgring assets and the market price of those assets, and Capricorn ensured the continuity of the sellers’ economic activities, so that the decision on recovery of the aid received by the sellers ought to be extended to Capricorn.

   B. The contested decisions

   11 The Commission adopted, on 1 October 2014, Decision (EU) 2016/151 on the State aid SA.31550 (2012/C) (ex 2012/NN) implemented by Germany for Nürburgring (OJ 2016 L 34, p. 1) and, on 13 April 2015, a corrigendum to that decision, published on its website (together, ‘the final decision’).

   12 In Article 2 of the final decision, the Commission found that certain support measures in favour of the sellers were unlawful and incompatible with the internal market (‘the aid to the sellers’).

   13 The Commission decided, in Article 3(2) of the final decision, that any potential recovery of the aid to the sellers would not concern Capricorn or its subsidiaries (‘the first contested decision’).

   14 In the final indent of Article 1 of the final decision, the Commission determined that the sale of the Nürburgring assets to Capricorn did not constitute State aid (‘the second contested decision’).

   15 The Commission took the view that the tender process had been conducted in an open, transparent and non-discriminatory manner, that that procedure had resulted in a sale price consistent with the market and that there was no economic continuity between the sellers and the buyer.

2. Procedure and forms of order sought

   16 By application lodged at the Court Registry on 26 June 2015, the applicant brought the present action.

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