Corte di giustizia UE n. 510/2013

62012CJ0287_EN [OSCURATO:PERSONA] part [OSCURATO:PERSONA] C‑287/12 P, APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 7 June 2012, [OSCURATO:PERSONA], established in Dublin (Ireland), represented by E. Vahida, avocat, and I.-G. Metaxas-Maragkidis, dikigoros, appellant, the other parties to the proceedings being: [OSCURATO:PERSONA], represented by L. Flynn and D. Grespan, acting as Agents, with an address for service in [OSCURATO:PERSONA], defendant at first instance, [OSCURATO:PERSONA], represented by G. Palmieri, acting as Agent, assisted by P. Gentili, avvocato dello Stato, with an address for service in [OSCURATO:PERSONA], [OSCURATO:SOCIETA] - [OSCURATO:SOCIETA], established in Fiumicino (Italy), represented by G. M. Roberti, G. Bellitti et I. Perego, avvocati, interveners at first instance, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of R. Silva de Lapuerta, President of the [OSCURATO:PERSONA], G. Arestis, J.‑C. Bonichot, A. Arabadjiev (Rapporteur) and J. L. da [OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA]: J. Kokott, Registrar: A. [OSCURATO:PERSONA], having regard to the written procedure, having decided, after hearing the [OSCURATO:PERSONA], to proceed to judgment without an Opinion, gives the following [OSCURATO:PERSONA] 1. By its appeal, [OSCURATO:PERSONA] (‘[OSCURATO:PERSONA]’) seeks to have set aside the judgment of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 28 March 2012 in [OSCURATO:PERSONA] T‑123/09 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] [2012] ECR I‑0000 (‘the judgment under appeal’), whereby that court dismissed its action seeking the partial annulment of [OSCURATO:PERSONA] 2009/155/EC of 12 November 2008 on the loan of EUR 300 million granted by Italy to [OSCURATO:PERSONA] C 26/08 (ex NN 31/08) (OJ 2009 L 52, p. 3) (‘the first contested decision’) and the annulment of [OSCURATO:PERSONA] C(2008) 6745 final, of 12 November 2008, concerning [OSCURATO:PERSONA] aid N 510/2008 – Italy – Sale of assets of the airline [OSCURATO:SOCIETA] (‘the second contested decision’). Legal context 2. It is apparent from the second recital in the preamble to [OSCURATO:PERSONA] (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of [OSCURATO:PERSONA] [88] of the EC Treaty (OJ 1999 L 83, p. 1) that that regulation seeks to codify and reinforce the consistent practice developed and established by the [OSCURATO:PERSONA] for the application of [OSCURATO:PERSONA] 88 EC, in accordance with the case-law of the [OSCURATO:PERSONA]. 3. [OSCURATO:PERSONA] 1 of that regulation provides: ‘For the purpose of this [OSCURATO:PERSONA]: … (h) “interested party” shall mean any [OSCURATO:PERSONA] 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. [OSCURATO:PERSONA] 4(2) to (4) of that regulation, that article headed ‘Preliminary examination of the notification and decisions of the [OSCURATO:PERSONA]’, provides: ‘(2) Where the [OSCURATO:PERSONA], 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 [OSCURATO:PERSONA], 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 [OSCURATO:PERSONA] [87](1) [EC], it shall decide that the measure is compatible with the common market (hereinafter referred to as a “decision not to raise objections”). The decision shall specify which exception under the Treaty has been applied. (4) Where the [OSCURATO:PERSONA], 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 [OSCURATO:PERSONA] [88](2) [EC] (hereinafter referred to as a “decision to initiate the formal investigation procedure”).’ 5. [OSCURATO:PERSONA] 7(4) of [OSCURATO:PERSONA] 659/1999 provides: ‘[OSCURATO:PERSONA] may attach to a positive decision conditions subject to which an aid may be considered compatible with the common market and may lay down obligations to enable compliance with the decision to be monitored (hereinafter referred to as a “conditional decision”).’ 6. [OSCURATO:PERSONA] 10 of that regulation is headed ‘Examination, request for information and information injunction’. [OSCURATO:PERSONA] 10(1) thereof provides: ‘Where the [OSCURATO:PERSONA] has in its possession information from whatever source regarding alleged unlawful aid, it shall examine that information without delay.’ Background to the dispute and the contested decisions 7. The facts which gave rise to the dispute in this case, as set out in paragraphs 1 to 37 of the judgment under appeal, can be summarised as follows. 8. On 29 December 2006 the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] and Finance published a call for declarations of interest in the sale of its stake in [OSCURATO:SOCIETA] (‘[OSCURATO:SOCIETA]’). That procedure was closed without reaching a conclusion on 18 July 2007, since the bids submitted were withdrawn. [OSCURATO:PERSONA] 2007 [OSCURATO:SOCIETA] asked a bank to identify potential partners for itself. The bid submitted by [OSCURATO:PERSONA]‑KLM was withdrawn on 21 April 2008, in the absence of agreement with the trade unions. 9. On 23 April 2008 the [OSCURATO:PERSONA] authorities informed the [OSCURATO:PERSONA] of the approval, through [OSCURATO:PERSONA][OSCURATO:PERSONA] 80, Urgent measures to ensure the public service of air transport (decreto-legge No 80 – Misure urgenti per assicurare il pubblico servizio di trasporto aereo), of 23 April 2008 (GURI No 97 of 24 April 2008, p. 5), of the granting of a loan of EUR 300 million to [OSCURATO:SOCIETA]. Having received no notification prior to the granting of such a loan, the [OSCURATO:PERSONA] requested the [OSCURATO:PERSONA] authorities, by letter of 24 April 2008, inter alia, to confirm the existence of that loan, provide any relevant information allowing such a measure to be assessed in relation to Articles 87 EC and 88 EC and to suspend the granting of the loan. On 29 April 2008 [OSCURATO:PERSONA] lodged a complaint with the [OSCURATO:PERSONA] concerning the existence of [OSCURATO:PERSONA] aid for [OSCURATO:SOCIETA] in the form of that loan. 10. By letter of 30 May 2008 the [OSCURATO:PERSONA] authorities informed the [OSCURATO:PERSONA] of the adoption, on 27 May 2008, of [OSCURATO:PERSONA][OSCURATO:PERSONA] 93, Urgent provisions to safeguard the purchasing power of households ([OSCURATO:PERSONA] 93 ‑ Disposizioni urgenti per salvaguardare il potere di acquisto delle famiglie) (GURI No 124 of 28 May 2008, p. 3), which gave [OSCURATO:SOCIETA] the option of counting the value of the loan at issue as part of its own capital. On the same date, [OSCURATO:PERSONA] sent a new complaint to the [OSCURATO:PERSONA] concerning the conversion of that loan into own capital. 11. On 3 June 2008 the [OSCURATO:PERSONA] authorities took further steps with a view to finding one or more buyers for [OSCURATO:SOCIETA]. 12. By letter of 12 June 2008 the [OSCURATO:PERSONA] notified the [OSCURATO:PERSONA] authorities of its decision of 11 June 2008 to initiate a formal investigation procedure in connection with the measures relating to the loan at issue and to [OSCURATO:SOCIETA]’s option of counting the value of that loan as part of its own capital. 13. By the adoption of [OSCURATO:PERSONA][OSCURATO:PERSONA] 134, Urgent measures for the restructuring of large undertakings in crisis ([OSCURATO:PERSONA] 134 ‑ Disposizioni urgenti in materia di ristrutturazione di grandi imprese in crisi) of 28 August 2008 (GURI No 201 of 28 August 2008, p. 3) (‘[OSCURATO:PERSONA][OSCURATO:PERSONA] 134’), certain amendments were made to the extraordinary administration procedure for particularly large undertakings active in the essential public services sector. Provision was in particular made to allow the option of rehabilitation of undertakings in the essential public services sector by means of a disposal of their assets by private treaty procedure to purchasers able to guarantee continuity of service in the medium term, rapid intervention and compliance with the requirements of [OSCURATO:PERSONA] legislation and treaties ratified by the [OSCURATO:PERSONA]. However, that option was coupled with the requirement that an independent expert appointed by the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] verify that the assets were sold at a price corresponding to the market price. 14. [OSCURATO:PERSONA] was placed in extraordinary administration, [OSCURATO:SOCIETA] (‘CAI’), a consortium of investors, submitted, on 1 [OSCURATO:PERSONA] 2008, a preliminary, non-binding bid for the acquisition of certain assets of companies in the group of which [OSCURATO:SOCIETA] formed part (‘the [OSCURATO:SOCIETA] group’), subject to the agreement of the trade unions to the recruitment of former staff members of that group under new working conditions. 15. In accordance with [OSCURATO:PERSONA][OSCURATO:PERSONA] 134, a bank was appointed as independent expert, responsible for verifying that the assets were sold at a price corresponding to the market price. A monitoring committee was set up, with the task, in particular, of agreeing to the sales of assets proposed by the extraordinary administrator. 16. On 14 [OSCURATO:PERSONA] 2008, following the failure of negotiations with the trade unions, CAI withdrew its preliminary bid. The following day, the extraordinary administration procedure was extended to the whole of the [OSCURATO:SOCIETA] group. On 22 [OSCURATO:PERSONA] 2008, the extraordinary administrator issued a call for declarations of interest in the purchase of all the assets of the [OSCURATO:SOCIETA] group (‘the call for declarations of interest’). On 25 [OSCURATO:PERSONA] 2008, CAI renewed its bid on the same conditions. 17. On 2 October 2008 [OSCURATO:PERSONA] lodged a third complaint with the [OSCURATO:PERSONA] concerning the adoption of [OSCURATO:PERSONA][OSCURATO:PERSONA] 134 and other measures relating to the sale of assets of the [OSCURATO:SOCIETA] group. 18. By letter of 14 October 2008, the [OSCURATO:PERSONA] authorities notified the [OSCURATO:PERSONA] of the procedure for the sale of [OSCURATO:SOCIETA]’s assets, asking it to confirm, for reasons of legal certainty, first, that the extraordinary administration procedure did not involve the grant of [OSCURATO:PERSONA] aid to the purchasers of the assets transferred and, secondly, that the potential purchase by third parties of certain assets of the [OSCURATO:SOCIETA] group, on the basis of a bid already formulated, did not involve any elements of economic continuity with the undertaking placed under extraordinary administration which might entail the transfer of [OSCURATO:SOCIETA]’s liabilities to the purchaser and, in particular, the requirement to recover unlawful and incompatible [OSCURATO:PERSONA] aid granted to [OSCURATO:SOCIETA]. 19. By letter of 30 October 2008 [OSCURATO:PERSONA] lodged an additional complaint with the [OSCURATO:PERSONA], denouncing (i) the increase of the municipal boarding fee per passenger at [OSCURATO:PERSONA] airports to EUR 3, with the aim, in its submission, on the part of the [OSCURATO:PERSONA] authorities, of financing severance payments to former [OSCURATO:SOCIETA] employees, and (ii) an alleged conflict of interest revealed by the press between certain CAI shareholders and certain shareholders of the independent expert, who were said to be identical. 20. On 31 October 2008 CAI submitted to the extraordinary administrator a binding offer for the purchase of certain assets relating to [OSCURATO:SOCIETA]’s air passenger transport business. That offer was sent to the [OSCURATO:PERSONA] by the [OSCURATO:PERSONA] authorities on 3 November 2008. 21. By the first contested decision, the [OSCURATO:PERSONA] declared that the loan granted to [OSCURATO:SOCIETA] by the [OSCURATO:PERSONA] constituted [OSCURATO:PERSONA] aid which was unlawful and incompatible with the common market and ordered its recovery from the beneficiary. 22. By the second contested decision, adopted at the conclusion of a preliminary examination phase, pursuant to [OSCURATO:PERSONA] 88(3) EC, the [OSCURATO:PERSONA] declared that the notified measure, as amended by the commitments given by the [OSCURATO:PERSONA] authorities and defined in that decision, did not involve the granting of [OSCURATO:PERSONA] aid to the buyers, subject to full compliance with those commitments by the [OSCURATO:PERSONA], whereby it could be guaranteed that the [OSCURATO:SOCIETA] group assets would be sold at the market price. Those commitments consist in the relevant minister not intervening in the action of the extraordinary administrator, the assessment of offers based on price, assessment of offers so as to ensure that the price not be lower than the market price, and the appointment of a monitoring trustee. The procedure before the [OSCURATO:PERSONA] and the judgment under appeal 23. By application lodged at the Registry of the [OSCURATO:PERSONA] on 28 March 2009, [OSCURATO:PERSONA] brought an action for the partial annulment of the first contested decision and the annulment of the second contested decision. 24. By way of measures of organisation of procedure, as provided for in [OSCURATO:PERSONA] 64 of its Rules of Procedure, the [OSCURATO:PERSONA] put, in writing, questions to the parties, to which the latter replied within the prescribed period. 25. By orders of 16 [OSCURATO:PERSONA] and 19 October 2009, the [OSCURATO:PERSONA] and [OSCURATO:SOCIETA]‑[OSCURATO:SOCIETA] (‘[OSCURATO:PERSONA]CAI’) were granted leave to intervene. The parties submitted oral argument at the hearing of 30 June 2011. 26. [OSCURATO:PERSONA], first, put forward seven pleas in law in support of its action seeking the annulment of the second contested decision. 27. The first plea alleged failure to open the formal investigation procedure under [OSCURATO:PERSONA] 88(2) EC, despite serious difficulties allegedly encountered by the [OSCURATO:PERSONA]. By its second plea, [OSCURATO:PERSONA] alleged the [OSCURATO:PERSONA]’s lack of competence to adopt the second contested decision. The third plea was a claim of manifest error of assessment in that the [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA]. The fourth plea alleged an error of law, the [OSCURATO:PERSONA] having allegedly ignored options other than the sale of [OSCURATO:SOCIETA] group assets, and an infringement of the duty to state reasons by the [OSCURATO:PERSONA], having regard to the lack of justification for that omission. The fifth plea alleged failure to apply to the sale of [OSCURATO:SOCIETA] group assets the criterion of a private investor operating in normal market economy conditions (‘market economy investor principle’). By its sixth plea, [OSCURATO:PERSONA] alleged an error in identifying the party obliged to reimburse the aid. Finally, the seventh plea alleged infringement of the duty to state reasons as regards, in particular, the shortcomings in the [OSCURATO:PERSONA]’s examination referred to in the applicant’s third and fourth pleas. 28. [OSCURATO:PERSONA], [OSCURATO:PERSONA] put forward a plea seeking the partial annulment of the first contested decision, alleging infringement of the principle of sound administration and of [OSCURATO:PERSONA] 14(3) of [OSCURATO:PERSONA] 659/1999. 29. By the judgment under appeal, the [OSCURATO:PERSONA], while holding the application for annulment of the second contested decision to be admissible, dismissed it on its merits. It then dismissed the application for annulment of the first contested decision as being inadmissible. The application for annulment of the second contested decision 30. [OSCURATO:PERSONA] the admissibility of the application for annulment of the sec ond contested decision, the [OSCURATO:PERSONA], referring to the judgment in [OSCURATO:PERSONA] C‑83/09 P [OSCURATO:PERSONA] v Kronoply and Kronotex [2011] ECR I‑4441, held, in paragraphs 63 to 73 of the judgment under appeal, that any interested party, within the meaning of [OSCURATO:PERSONA] 1(h) of [OSCURATO:PERSONA] 659/1999, must be considered to be directly and individually concerned by a decision not to raise objections, adopted under [OSCURATO:PERSONA] 4(3) of that regulation. [OSCURATO:PERSONA] noted in that regard that [OSCURATO:PERSONA] and [OSCURATO:SOCIETA] are competitors on the [OSCURATO:PERSONA] and international passenger air transport markets and, therefore, that the action was admissible, there being no need to examine [OSCURATO:PERSONA] arguments that its competitive position was substantially harmed by the measure notified. [OSCURATO:PERSONA] the subject‑matter of the review, the [OSCURATO:PERSONA] noted, in paragraphs 80 and 81 of the judgment under appeal, that it was appropriate to examine all [OSCURATO:PERSONA] pleas in support of the annulment of the second contested decision, in order to ascertain, in particular, whether they allowed the identification of any serious difficulty which should have led the [OSCURATO:PERSONA] to open the formal investigation procedure under [OSCURATO:PERSONA] 88(2) EC. 31. As regards the substance, the [OSCURATO:PERSONA] first of all rejected the second plea put forward by [OSCURATO:PERSONA] alleging the [OSCURATO:PERSONA]’s lack of competence to adopt a conditional decision after a preliminary examination. [OSCURATO:PERSONA] held, in paragraphs 94 to 97 of the judgment under appeal, that [OSCURATO:PERSONA] 7(4) of [OSCURATO:PERSONA] 659/1999 did not apply in the present case, since the [OSCURATO:PERSONA] concluded that the measure notified did not constitute [OSCURATO:PERSONA] aid and that, therefore, the second contested decision could not be classified as a conditional decision, within the meaning of that provision, or as a decision which requires modifications to the project notified, but as a decision taking account of commitments voluntarily entered into by the [OSCURATO:PERSONA] concerned during the phase of notification of the contested measure in order to clarify certain points. [OSCURATO:PERSONA] concluded that those commitments form an integral part of the measure notified. 32. [OSCURATO:PERSONA] next examined the pleas alleging infringement of the obligation to open the formal investigation procedure in order to determine whether, in the present case, the examination carried out by the [OSCURATO:PERSONA] was of such a kind as to eliminate the possibility of serious difficulties. 33. Thus, the [OSCURATO:PERSONA], first, rejected the arguments put forward in support of the third plea, concerning the [OSCURATO:PERSONA]’s failure to examine all the relevant characteristics of the measures in their context. [OSCURATO:PERSONA] held that the [OSCURATO:PERSONA] could not 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 or as regards the reductions in burdens and other advantages allegedly granted by [OSCURATO:PERSONA] legislation to CAI, since those measures were not relevant. 34. [OSCURATO:PERSONA], the [OSCURATO:PERSONA] rejected the arguments set out in support of the fourth plea, alleging failure to examine alternatives to the sale of [OSCURATO:SOCIETA] group assets. [OSCURATO:PERSONA] held, first, that the [OSCURATO:PERSONA] applied the market economy investor principle by concluding that those assets were sold at the market price and, secondly, that the [OSCURATO:PERSONA] established that the objective of that sale was the maximisation of the value of those assets, in the interest of [OSCURATO:SOCIETA]’s creditors and, therefore, that the conduct of the public authorities was guided by prospects of profitability in the long term. [OSCURATO:PERSONA] also held that, since the [OSCURATO:PERSONA] was satisfied that those assets would be sold at the market price, it was under no obligation to examine alternatives to the procedure chosen. 35. Third, the [OSCURATO:PERSONA] rejected the fifth plea, alleging failure to apply to the sale of [OSCURATO:SOCIETA] group assets the private investor test. 36. [OSCURATO:PERSONA] held that the sale of [OSCURATO:SOCIETA] group assets did not raise any question concerning the concept of public service obligation and that the continuity of service criterion was secondary in relation to that of price. It held that some of the 60 bids in response to the call for declarations of interest, and particularly that of CAI, were submitted even before publication of that call, demonstrating therefore that the presence therein of the continuity of service condition was not decisive for those bids. [OSCURATO:PERSONA] stated that the [OSCURATO:PERSONA] had taken into account the continuity of service criterion as part of a concern to maximise the value of the assets sold, in order to obtain a higher sale price in the interest of [OSCURATO:SOCIETA] creditors and not in the interests of continuing the activity of a public service. 37. [OSCURATO:PERSONA] further held that the [OSCURATO:PERSONA] had verified that the call for declarations of interest did not contain any clause that was discriminatory on grounds of nationality and that the [OSCURATO:PERSONA] had verified that the offer had been the subject of an independent assessment, in order to ensure that the price proposed was not below the market price. [OSCURATO:PERSONA] furthermore found that CAI took over only part of [OSCURATO:SOCIETA]’s staff, who were engaged on the basis of entirely new working conditions and contracts. 38. Fourth, the [OSCURATO:PERSONA] rejected the arguments set out in support of the sixth plea, alleging an error in identifying the party obliged to repay the aid. [OSCURATO:PERSONA] held that the [OSCURATO:PERSONA] concluded that the sale of assets procedure did not involve economic continuity between [OSCURATO:SOCIETA] and CAI, where the shareholders of those companies were not the same, since CAI would take over only certain assets relating to [OSCURATO:SOCIETA]’s passenger transport business, since it pursued its own business strategy and since no automatic transfer of employment contracts took place between those two companies. 39. Fifth, the [OSCURATO:PERSONA] rejected the arguments set out in support of the first plea, alleging failure to open a formal investigation procedure. [OSCURATO:PERSONA] found that the duration of the preliminary examination phase was reasonable and that the commitments incorporated in the second contested decision are evidence that the [OSCURATO:PERSONA] took the precautions necessary both to monitor compliance with those commitments and to react to any non-compliance therewith since, otherwise, it reserved the right to initiate the formal investigation procedure. 40. Finally, the [OSCURATO:PERSONA], in paragraphs 176 to 182 of the judgment under appeal, examined and rejected the pleas alleging infringement of the duty to state reasons in the second contested decision as regards the presence of certain shareholders of the expert in the share capital of CAI. 41. [OSCURATO:PERSONA] concluded that the application for annulment of the second contested decision should be dismissed in its entirety. The application for annulment of the first contested decision 42. [OSCURATO:PERSONA] held, in paragraph 197 of the judgment under appeal, that [OSCURATO:PERSONA] had not demonstrated that the fact of ordering immediate recovery of the aid from [OSCURATO:SOCIETA] and not from CAI had the effect of substantially affecting its competitive position, or that the time granted by the [OSCURATO:PERSONA] to the [OSCURATO:PERSONA], which had allegedly allowed the obligation to recover the aid from the beneficiary to be circumvented, affected its interests. [OSCURATO:PERSONA] considered that [OSCURATO:PERSONA] had also failed to demonstrate that the fact that suspension of the aid was not ordered affected it. [OSCURATO:PERSONA] concluded that [OSCURATO:PERSONA] had not demonstrated that it was individually concerned by the first contested decision. 43. The action was therefore dismissed in its entirety. Forms of order sought 44. By its appeal, [OSCURATO:PERSONA] claims that the [OSCURATO:PERSONA] should: – set aside the judgment under appeal; – give final judgment in accordance with [OSCURATO:PERSONA] 61 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA] or, if it is considered that the state of the proceedings does not permit the [OSCURATO:PERSONA] to give final judgment, to refer the case back to the [OSCURATO:PERSONA] for judgment, and – order the [OSCURATO:PERSONA] to pay the costs. 45. [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] should dismiss the appeal and order [OSCURATO:PERSONA] to pay the costs. 46. [OSCURATO:PERSONA]CAI claims that the appeal should be dismissed as being entirely or partially inadmissible and, in any event, as being unfounded and that [OSCURATO:PERSONA] should be ordered to pay the costs. 47. [OSCURATO:PERSONA] claims that the appeal should be dismissed as being inadmissible and, in the alternative, as being unfounded, and that [OSCURATO:PERSONA] should be ordered to pay the costs. The appeal 48. In support of its appeal, [OSCURATO:PERSONA] puts forward, first, six grounds of appeal concerning its application for annulment of the second contested decision. The first ground of appeal alleges that the [OSCURATO:PERSONA] erred in law in the examination of the admissibility of the action. By its second ground of appeal, [OSCURATO:PERSONA] claims that the [OSCURATO:PERSONA] erred in its statement of reasons and erred in law by failing to declare that the [OSCURATO:PERSONA] lacked competence to adopt a conditional decision. The third ground of appeal alleges that the [OSCURATO:PERSONA] erred in law in that it failed to examine all the relevant characteristics of the notified measure. The fourth ground of appeal alleges that the [OSCURATO:PERSONA] erred in its statement of reasons and erred in law by failing to examine alternatives to the notified measure. The fifth ground of appeal relates to an error of law in applying the market economy investor principle. The sixth ground of appeal alleges a distortion of the evidence and an error committed by the [OSCURATO:PERSONA] by not holding CAI to be the economic successor of [OSCURATO:SOCIETA]. 49. [OSCURATO:PERSONA], as regards the application for annulment of the first contested decision, [OSCURATO:PERSONA] puts forward a seventh ground of appeal, alleging a failure to state adequate reasons. The first ground of appeal: an error of law in the examination of the admissibility of the application for annulment of the second contested decision Arguments of the parties 50. By its first ground of appeal, [OSCURATO:PERSONA] complains that the [OSCURATO:PERSONA] erred in its assessment of the admissibility of its action in so far as directed against the second contested decision by failing to examine whether its competitive position was significantly affected by that decision. It claims, in effect, that the [OSCURATO:PERSONA] therefore redefined the subject-matter of its action and reduced the scope of review of the lawfulness of that decision. 51. [OSCURATO:PERSONA] maintains that the first ground of appeal is ineffective. [OSCURATO:PERSONA] in no way restricted the scope of the action and its approach, consistent with [OSCURATO:PERSONA] v Kronoply and Kronotex, was more favourable to [OSCURATO:PERSONA] than if it had examined whether the second contested decision should be annulled on its merits. [OSCURATO:PERSONA] arguments concerning the merits of that decision could be examined without its having to demonstrate that it had legal standing to invoke them, because its application contained a ‘hook’ to the protection of its procedural rights as an interested party. 52. [OSCURATO:PERSONA]CAI claims that this ground of appeal should be declared to be inadmissible. [OSCURATO:PERSONA], by rejecting the objections of inadmissibility raised by the [OSCURATO:PERSONA] and [OSCURATO:PERSONA]CAI, ruled in favour of [OSCURATO:PERSONA] and, therefore, the latter has no interest in bringing proceedings in that regard. Moreover, the standard of proof required in order to challenge a decision not to raise objections is lower than the standard which could have been required in the case of an appraisal of the merits under [OSCURATO:PERSONA] 87 EC. 53. [OSCURATO:PERSONA], relying on [OSCURATO:PERSONA] v Kronoply and Kronotex , claims that the first ground of appeal is unfounded since the subject-matter of the action remains the protection of [OSCURATO:PERSONA] procedural rights. In any event, since the arguments put forward by [OSCURATO:PERSONA] in paragraphs 46 to 109 of its application at first instance were examined in detail in paragraphs 99 to 187 of the judgment under appeal, the refusal to examine whether the notified measure had significantly affected its market position had no real impact on the scope of the [OSCURATO:PERSONA] findings. According to that [OSCURATO:PERSONA], [OSCURATO:PERSONA] misinterprets paragraphs 129 and 130 of the judgment under appeal. [OSCURATO:PERSONA], paragraphs 131 to 137 of that judgment are additional evidence that the [OSCURATO:PERSONA] carried out a genuine examination of the substance of the second contested decision. [OSCURATO:PERSONA] adds that [OSCURATO:PERSONA] has never demonstrated that its competitive position suffered immediate and direct consequences as a result of that decision. Findings of the [OSCURATO:PERSONA] 54. Contrary to what is claimed by [OSCURATO:PERSONA], the [OSCURATO:PERSONA] did not misconstrue its arguments aimed at challenging the substance of the second contested decision or artificially redefine the subject-matter of the action as an action aimed exclusively at the protection of its procedural rights. 55. In paragraph 64 of the judgment under appeal, the [OSCURATO:PERSONA], referring to paragraph 48 of [OSCURATO:PERSONA] v Kronoply and Kronotex , pointed out that the specific status of interested party within the meaning of [OSCURATO:PERSONA] 1(h) of [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] 230 EC, the applicant contesting a decision not to raise objections. Therefore, the [OSCURATO:PERSONA] restricted itself, for the purpose of examining the admissibility of the action, to examining, in paragraphs 70 to 73 of the judgment under appeal, whether [OSCURATO:PERSONA] had proved to the requisite legal standard that it was an interested party. 56. Admittedly, apart from the plea seeking to safeguard its procedural rights under [OSCURATO:PERSONA] 88(2) EC, [OSCURATO:PERSONA] also put forward pleas explicitly connected with the merits of the second contested decision. 57. However, it is apparent from paragraph 81 of the judgment under appeal that the [OSCURATO:PERSONA] examined all [OSCURATO:PERSONA] pleas for annulment of the second contested decision, in order to ascertain, in particular, whether they allowed the identification of any serious difficulty which should have led the [OSCURATO:PERSONA] to open the formal investigation procedure under [OSCURATO:PERSONA] 88(2) EC. For that purpose, the [OSCURATO:PERSONA] examined the substantive arguments made by [OSCURATO:PERSONA], in order to determine whether those arguments were such as to support the plea in law expressly made by [OSCURATO:PERSONA] regarding the existence of serious difficulties justifying initiation of the procedure referred to in that provision. 58. [OSCURATO:PERSONA] moreover found, in paragraph 83 of the judgment under appeal, that, in support of its first plea, the applicant relied on ten errors which it claimed vitiated the [OSCURATO:PERSONA]’s examination and that, in so far as those alleged errors or gaps related to the other pleas raised in the action at first instance, it was appropriate to examine them in the context of the assessment relating to those other pleas. 59. In that regard, it cannot validly be claimed that, by doing so, the [OSCURATO:PERSONA] altered the subject-matter of the application for annulment of the second contested decision. 60. Where an applicant seeks the annulment of a decision not to raise objections, it essentially contests the fact that the [OSCURATO:PERSONA] 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 that its action for annulment may succeed, the applicant may invoke any plea capable of showing that the assessment of the information and evidence which the [OSCURATO:PERSONA] had at its disposal, during the phase of preliminary examination of the notified measure, should have raised doubts as to the compatibility of that measure with the common market. The use of such arguments cannot, however, have the consequence of changing the subject-matter of the application or altering the conditions of its admissibility. On the contrary, the existence of doubts concerning that compatibility is precisely the evidence which must be adduced in order to show that the [OSCURATO:PERSONA] was required to initiate the formal investigation procedure under [OSCURATO:PERSONA] 88(2) EC and [OSCURATO:PERSONA] 6(1) of [OSCURATO:PERSONA] 659/1999 ( [OSCURATO:PERSONA] v Kronoply and Kronotex , paragraph 59). 61. In any event, it is clear that the arguments put forward by [OSCURATO:PERSONA] in paragraphs 46 to 109 of its application at first instance were subject to a detailed examination in paragraphs 99 to 187 of the judgment under appeal. 62. Consequently, the first ground of appeal must be rejected as being unfounded. The second ground of appeal: failure to declare that the [OSCURATO:PERSONA] lacked competence to adopt a conditional decision on the basis of [OSCURATO:PERSONA] 4(2) of [OSCURATO:PERSONA] 659/1999 Arguments of the parties 63. [OSCURATO:PERSONA] claims that the [OSCURATO:PERSONA] failed to examine its argument that obligations and monitoring mechanisms could not be added to a measure at the close of a preliminary examination. By holding that [OSCURATO:PERSONA] 7(4) of [OSCURATO:PERSONA] 659/1999 was not applicable, the [OSCURATO:PERSONA] moreover provided an inadequate statement of reasons. It erred in the legal characterisation of the evidence and infringed the applicable law since the commitments in question are conditions which add complexity to the monitoring of the notified measure and warrant an in-depth examination of the latter, as is provided for by that provision. To thereby legitimise a novel [OSCURATO:PERSONA] practice is an infringement of [OSCURATO:PERSONA] 58 of the Statute of the [OSCURATO:PERSONA]. According to [OSCURATO:PERSONA], those commitments create a major shift of the selection criteria towards price. The call for declarations of interest emphasised other criteria, namely the capacity to guarantee continuity of the transportation service in the medium term, the speed of the transaction and compliance with the requirements of [OSCURATO:PERSONA] law. In the alternative, [OSCURATO:PERSONA] describes those commitments as modifications made by the [OSCURATO:PERSONA] of the same type as those referred to in [OSCURATO:PERSONA] 7(2) and (3) of [OSCURATO:PERSONA] 659/1999. 64. [OSCURATO:PERSONA] contends that a notifying [OSCURATO:PERSONA] is entitled to offer it commitments explaining how the notified measure should be understood or applied. [OSCURATO:PERSONA] position is extremely rigid, formalist and contrary to the principle of sound administration. It would mean moreover that the [OSCURATO:PERSONA] would be obliged, in numerous cases, to initiate formal investigation procedures without any serious basis. 65. According to [OSCURATO:PERSONA]CAI, the second ground of appeal is unfounded. The dialogue between the national authorities and the [OSCURATO:PERSONA] after the measure at issue was notified was usual and consistent with the rule of law, being an expression of the principle of sincere cooperation. That process ensures that the [OSCURATO:PERSONA] receives all the assurances necessary in order to rule out the possibility that the notified measures, as eventually clarified and integrated, might raise doubts as to their nature and compatibility. That ground of appeal is moreover inadmissible since [OSCURATO:PERSONA] is asking the [OSCURATO:PERSONA] to re-examine whether the facts presented by the national authorities during the preliminary investigation can be regarded as substantive changes to the notified measure and therefore as ‘conditions’ within the meaning of [OSCURATO:PERSONA] 7(4) of [OSCURATO:PERSONA] 659/1999. 66. In addition to the foregoing, the [OSCURATO:PERSONA] states that the call for tenders stated that the sale price could not be lower than the market price established by an independent expert. Reference was then made, on a secondary basis, to the three criteria invoked by [OSCURATO:PERSONA]. [OSCURATO:PERSONA], it contends that the argument that the commitments at issue were significant modifications is new. Findings of the [OSCURATO:PERSONA] 67. First of all, it is clear that since the [OSCURATO:PERSONA] found, by the second contested decision, that there was no aid, the [OSCURATO:PERSONA] was correct to hold, in paragraph 95 of the judgment under appeal, that the second contested decision cannot be classified as a conditional decision, within the meaning of [OSCURATO:PERSONA] 7(4) of [OSCURATO:PERSONA] 659/1999, but, on the contrary, can be classified as a ‘decision taking account of undertakings as to the behaviour voluntarily entered into by the [OSCURATO:PERSONA] during the phase of notification of the contested measure in order to clarify certain points’ and that, therefore, those commitments form an integral part of the notified measure. 68. [OSCURATO:PERSONA], to determine whether an act of the [OSCURATO:PERSONA] in matters of [OSCURATO:PERSONA] aid constitutes a decision within the meaning of [OSCURATO:PERSONA] 4 of [OSCURATO:PERSONA] 659/1999, it is necessary to ascertain whether, taking account of the substance of that act and the [OSCURATO:PERSONA]’s intention, that institution has, at the end of the preliminary examination stage, definitively established its position, by way of the act under consideration, on the measure under review (see [OSCURATO:PERSONA] C‑521/06 P [OSCURATO:PERSONA] v [OSCURATO:PERSONA] [2008] ECR I‑5829, paragraph 46). 69. In the present case, it should be noted that the second contested decision contains such an adoption of a definitive position. It was stated there, following an examination of the circumstances of this case, as the [OSCURATO:PERSONA] noted in paragraph 94 of the judgment under appeal, that the [OSCURATO:PERSONA] concluded that the notified measure, bearing in mind the commitments given by the [OSCURATO:PERSONA], did not constitute [OSCURATO:PERSONA] aid and did not therefore fall within the scope of [OSCURATO:PERSONA] 87(1) EC. [OSCURATO:PERSONA] thus clearly adopted a position in so far as, in its opinion, the notified measure, as clarified in its additional observations, did not constitute [OSCURATO:PERSONA] aid. Consequently, it is necessary to classify the second contested decision as a decision adopted under [OSCURATO:PERSONA] 4(2) of [OSCURATO:PERSONA] 659/1999, according to which ‘[w]here the [OSCURATO:PERSONA], after a preliminary examination, finds that the notified measure does not constitute aid, it shall record that finding by way of a decision’. 70. [OSCURATO:PERSONA] was therefore correct to state, in paragraphs 94 and 95 of the judgment under appeal, that [OSCURATO:PERSONA] 7(4) of [OSCURATO:PERSONA] 659/1999 was not applicable in the present case and that it follows that the second contested decision cannot be classified as either a conditional decision, within the meaning of that provision, imposing conditions or obligations on the [OSCURATO:PERSONA], or as a decision which requires modifications to the project notified, as [OSCURATO:PERSONA] claimed. 71. It should be noted, furthermore, that decisions adopted without initiating the formal investigation procedure are acts which are brought into being on conclusion of a brief review, which is conducted within a narrow time frame and, more often than not, in the context of a dialogue exclusive to the [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] concerned. In accordance with the objective of [OSCURATO:PERSONA] 88(3) EC and its duty of sound administration, the [OSCURATO:PERSONA] may, amongst other things, engage in dialogue with the notifying [OSCURATO:PERSONA] or with third parties in an endeavour to overcome, during the preliminary procedure, any difficulties encountered. However, as the [OSCURATO:PERSONA] noted in paragraph 78 of the judgment under appeal, that power presupposes that the [OSCURATO:PERSONA] may adjust its position according to the results of the dialogue engaged in, without that adjustment having to be interpreted, a priori, as establishing the existence of serious difficulties. 72. Consequently, the [OSCURATO:PERSONA] was fully entitled to hold, in paragraph 96 of the judgment under appeal, that the [OSCURATO:PERSONA] had the power lawfully to adopt, on the basis of [OSCURATO:PERSONA] 4(2) of [OSCURATO:PERSONA] 659/1999, a decision, such as the second contested decision, whereby, while finding the absence of [OSCURATO:PERSONA] aid, it takes note of commitments entered into by the [OSCURATO:PERSONA]. 73. Consequently, the second ground of appeal must be rejected as being unfounded. The third ground of appeal: the [OSCURATO:PERSONA] failed to examine all the relevant characteristics of the notified measure Arguments of the parties 74. By its third ground of appeal, [OSCURATO:PERSONA] claims, essentially, first, that the statement of reasons in paragraph 114 of the judgment under appeal is ‘logically flawed’ in so far as the [OSCURATO:PERSONA] failed to take into account the fact that the [OSCURATO:PERSONA] gave certain assurances to the trade unions by means of social measures introduced by [OSCURATO:PERSONA][OSCURATO:PERSONA] 134. That action encouraged CAI to renew its bid. [OSCURATO:PERSONA], certain features of that [OSCURATO:PERSONA]Law were not examined by the [OSCURATO:PERSONA] in the second contested decision or by the [OSCURATO:PERSONA] in the judgment under appeal, which constitutes a failure to state reasons. [OSCURATO:PERSONA], the [OSCURATO:PERSONA] erred in law by not holding that the [OSCURATO:PERSONA] had infringed [OSCURATO:PERSONA] 10 of [OSCURATO:PERSONA] 659/1999, according to which ‘[w]here the [OSCURATO:PERSONA] has in its possession information from whatever source regarding alleged unlawful aid, it shall examine that information without delay’, by failing to examine the information relating to unlawful [OSCURATO:PERSONA] aid. 75. [OSCURATO:PERSONA] contends that the first argument is based on an incorrect interpretation of paragraph 114 of the judgment under appeal and that [OSCURATO:PERSONA] has not established distortion of the evidence. [OSCURATO:PERSONA] points out that, in paragraphs 105 to 116 of the judgment under appeal, the [OSCURATO:PERSONA] answered the assertion that the elements of [OSCURATO:PERSONA][OSCURATO:PERSONA] 134 relied on by [OSCURATO:PERSONA] concerned the extraordinary administration procedure, that decree-law and the legal provisions relating to unemployment and social security. [OSCURATO:PERSONA] considers that the [OSCURATO:PERSONA] was moreover under no obligation to examine the aid allegedly unlawfully granted to [OSCURATO:SOCIETA] in the context of the second contested decision. In view of the fact that it was held that the sale of [OSCURATO:SOCIETA] group assets did not involve any aid and that there was no continuity between [OSCURATO:SOCIETA] and CAI, the latter could not have benefited from aid which that decree‑law might have granted to [OSCURATO:SOCIETA]. 76. [OSCURATO:PERSONA]CAI maintains, first, that [OSCURATO:PERSONA] reasoning regarding its first argument is based on assumptions. [OSCURATO:PERSONA], the fact that CAI submitted for a second time the same bid proves that the negotiations with the trade unions had no effect on the conditions of sale. [OSCURATO:PERSONA], [OSCURATO:PERSONA]CAI claims that the matters invoked by [OSCURATO:PERSONA] had not been raised by it during the preliminary investigation phase and that, in any event, the alleged advantages concerned [OSCURATO:SOCIETA] and not CAI. [OSCURATO:PERSONA], [OSCURATO:PERSONA]CAI disputes any infringement of [OSCURATO:PERSONA] 10 of [OSCURATO:PERSONA] 659/1999 since the [OSCURATO:PERSONA] correctly focused on the notified measure. In any event, the third ground of appeal refers to alleged possible aid which would not affect the scope of the second contested decision. 77. [OSCURATO:PERSONA] points out, first, that CAI was under no obligation to employ [OSCURATO:SOCIETA] employees and that those it did employ signed new contracts. [OSCURATO:PERSONA], [OSCURATO:PERSONA][OSCURATO:PERSONA] 134 was already in force when the bid was submitted for the first time and that did not prevent either the failure of negotiations with the trade unions or the later submission of an identical bid. [OSCURATO:PERSONA] second argument is manifestly inadmissible since [OSCURATO:PERSONA] had at no time previously called into question [OSCURATO:PERSONA] 3 of [OSCURATO:PERSONA][OSCURATO:PERSONA] 134. It is, in any event, unfounded because the measures envisaged in [OSCURATO:PERSONA] 3 do not relate to CAI. The third argument is inadmissible because it does not include any specific complaint relating to the [OSCURATO:PERSONA] findings. Findings of the [OSCURATO:PERSONA] 78. By the first part of its third ground of appeal, [OSCURATO:PERSONA] in reality seeks to call into question the findings of fact and the assessment of the evidence. However, under [OSCURATO:PERSONA] 256(1) TFEU and the first paragraph of [OSCURATO:PERSONA] 58 of the Statute of the [OSCURATO:PERSONA] of Justice, an appeal lies on points of law only. [OSCURATO:PERSONA] therefore has sole jurisdiction to establish and assess the relevant facts and to assess the evidence, save where such facts and evidence have been distorted ([OSCURATO:PERSONA] C‑403/10 P Mediaset v [OSCURATO:PERSONA] [2011] ECR I‑0000, paragraph 73 and case‑law cited). 79. [OSCURATO:PERSONA] the second part of the third ground of appeal, it is clear that the arguments invoked by [OSCURATO:PERSONA] in reality are aimed at persuading the [OSCURATO:PERSONA] to replace the [OSCURATO:PERSONA] findings of fact with its own. In accordance with the preceding paragraph, such arguments must be held to be inadmissible. In such circumstances, [OSCURATO:PERSONA] argument concerning failure to state reasons cannot be accepted. 80. The third part of the third ground of appeal can also not be upheld. On the basis of the findings made in paragraphs 112 and 113 of the judgment under appeal, which are not disputed by [OSCURATO:PERSONA] in the context of this appeal, the [OSCURATO:PERSONA] held, in paragraph 115 of that judgment, that, as regards the circumstances surrounding the adoption of amendments to the extraordinary administration procedure, the [OSCURATO:PERSONA] cannot be accused of having carried out an incomplete or insufficient examination during the preliminary examination phase as regards the reductions in burdens and other advantages allegedly granted by [OSCURATO:PERSONA] legislation to CAI, since those measures were not relevant to the question whether an advantage might have been granted to the purchaser of the [OSCURATO:SOCIETA] group assets. In such circumstances, the [OSCURATO:PERSONA] cannot be accused of having infringed [OSCURATO:PERSONA] 10 of [OSCURATO:PERSONA] 659/1999. 81. The third ground of appeal must, therefore, be rejected as being partially inadmissible and partially unfounded. The fourth ground of appeal: failure to examine options other than the notified measure Arguments of the parties 82. By its fourth ground of appeal, [OSCURATO:PERSONA] considers, first, that the statement of reasons in paragraph 120 of the judgment under appeal is incorrect, in so far as it treats as equivalent the maximisation of the value of the assets in the interest of [OSCURATO:SOCIETA]’s creditors and the ‘aim of ensuring the long term profitability of an undertaking held by the public authorities’. [OSCURATO:PERSONA], the [OSCURATO:PERSONA] infringed [OSCURATO:PERSONA] law by failing to take into account alternatives to the notified measure and, in paragraph 123 of the judgment under appeal, wrongly held that what was at issue was a mere question of evidence. [OSCURATO:PERSONA], evidence of the existence of alternative solutions was available to the [OSCURATO:PERSONA] when the second contested decision was adopted, principally by reason of [OSCURATO:PERSONA][OSCURATO:PERSONA] 134 and [OSCURATO:PERSONA] complaints. Fourthly, the [OSCURATO:PERSONA] infringed [OSCURATO:PERSONA] 10 of [OSCURATO:PERSONA] 659/1999 by failing to find fault with the failure to state, in the second contested decision, reasons why alternatives to the notified measure were not examined. 83. According to the [OSCURATO:PERSONA], the first argument is based on an incorrect interpretation of paragraph 120 of the judgment under appeal, which actually refers to ‘the conduct of the public authorities … guided by prospects of profitability in the long term’. In any event, that argument is ineffective as a result of the two other grounds set out in that paragraph. [OSCURATO:PERSONA] disputes the second argument and considers that, in the absence of any advantage for CAI, since the latter purchased the [OSCURATO:SOCIETA] group assets at their market value, the [OSCURATO:PERSONA] was bound to find that the purchase price did not include [OSCURATO:PERSONA] aid. The third argument is manifestly inadmissible because [OSCURATO:PERSONA] does not rely on any error of law and merely restates what it considers as failings on the part of the [OSCURATO:PERSONA]. The fourth argument is ineffective because, in the absence of an obligation to examine alternatives to the notified measure, it is of no importance whether or not there is evidence of such alternatives. 84. [OSCURATO:PERSONA]CAI claims that the first argument is inadmissible because it consists of a restatement of facts, namely the alleged alternatives to the notified measure. That argument is furthermore unfounded because the only relevant point of law in this case is the consistency of the [OSCURATO:PERSONA] examination of the [OSCURATO:PERSONA]’s assessment of the notified measure in the light of the market economy investor principle. Moreover, the alternatives referred to by [OSCURATO:PERSONA] are non-existent or unrealistic. 85. [OSCURATO:PERSONA] does not see any inconsistency between the sale of assets of an undertaking at the best price, on the one hand, and long-term prospects, on the other, and points out in that regard that the [OSCURATO:PERSONA] authorities had intended to sell the [OSCURATO:SOCIETA] assets not at a ‘bankruptcy price’, but at market price. In that context, the [OSCURATO:PERSONA] had no reason to examine alternatives, particularly when [OSCURATO:PERSONA] did not submit any to it. The alternatives put forward to date are moreover only theoretical possibilities and are economically irrational. Findings of the [OSCURATO:PERSONA] 86. [OSCURATO:PERSONA] argument that the statement of reasons in paragraph 120 of the judgment under appeal is incorrect, suffice it to note that it is directed against a ground of the judgment under appeal which is included merely for the sake of completeness. Complaints directed against grounds of a judgment of the [OSCURATO:PERSONA] which are included merely for the sake of completeness must be rejected outright since such grounds cannot provide any basis for setting that judgment aside (see, inter alia, the judgment of 21 March 2013 in [OSCURATO:PERSONA] C‑405/11 P [OSCURATO:PERSONA] v [OSCURATO:PERSONA] [2013], paragraph 65 and case-law cited). 87. In those circumstances, it must be held that, where the [OSCURATO:PERSONA] finds an absence of any advantage for the undertaking concerned, which leads it to find that there is no [OSCURATO:PERSONA] aid, it cannot be considered to be bound to examine alternative solutions to the choice made by the notifying [OSCURATO:PERSONA]. 88. It follows from the foregoing that the [OSCURATO:PERSONA] did not err in law when it held that the [OSCURATO:PERSONA] was under no obligation to examine alternatives to the procedure chosen by the [OSCURATO:PERSONA] authorities. 89. Accordingly, the fourth ground of appeal must be rejected as being unfounded. The fifth ground of appeal: error of law in applying the market economy investor principle Arguments of the parties 90. [OSCURATO:PERSONA] considers that the [OSCURATO:PERSONA] did not observe the market economy investor principle. It claims in that regard that the statement of reasons is inadequate and complains of an incorrect statement of reasons in paragraph 133 of the judgment under appeal. According to [OSCURATO:PERSONA], what mattered was whether the continuity of service referred to in the call for declarations of interest was perceived by potential purchasers, and not by the [OSCURATO:PERSONA] authorities, as a public service obligation. [OSCURATO:PERSONA] distorted the evidence by relying on ex post assurances from the [OSCURATO:PERSONA] and by failing to hold that continuity of service was an important obligation and a selection criterion. [OSCURATO:PERSONA], that public service obligation involves costs and is therefore liable to reduce the price of offers. [OSCURATO:PERSONA] claims that paragraph 136 of the judgment under appeal is an instance of the distortion of evidence because only one of the 60 bids submitted related to [OSCURATO:SOCIETA]’s main activity as a whole and the continuity of service obligation. The statement of reasons in paragraph 137 of that judgment is incorrect because the [OSCURATO:PERSONA] was obliged to investigate the absence of aid and the [OSCURATO:PERSONA] should have found fault with the absence of such an examination. 91. [OSCURATO:PERSONA] doubts whether the first argument, stated in general terms, is admissible, and contends that [OSCURATO:PERSONA] does not dispute the existence and role of mechanisms ensuring that the offer not be at a price lower than the market price. [OSCURATO:PERSONA], [OSCURATO:PERSONA] has not established that the [OSCURATO:PERSONA] distorted the evidence in the file by holding, in paragraph 134 of the judgment under appeal, that price was the dominant criterion. That argument is incorrect because the [OSCURATO:PERSONA] could only have a duty to examine compensation for the performance of public service obligations. 92. [OSCURATO:PERSONA]CAI points out that there is no evidence that the continuity of service condition influenced the price. The judgment under appeal correctly states that CAI’s offer had to be made at the market price and that, consequently, the interests of creditors were safeguarded. It maintains that its bid was not influenced by the alleged public service or public authority condition. 93. [OSCURATO:PERSONA] contends that, since it is clearly apparent from the call for declarations of interest that the price of the offer had to be the market price and that other criteria were secondary, the perception of the bidders could not have differed from that of the [OSCURATO:PERSONA] authorities. [OSCURATO:PERSONA], the argument that the need to ensure continuity of service had the result of reducing the price of offers is merely conjecture. Findings of the [OSCURATO:PERSONA] 94. [OSCURATO:PERSONA] ground of appeal to be admissible, in so far as it contests the findings of fact made by the [OSCURATO:PERSONA], it is in any event unfounded. 95. [OSCURATO:PERSONA] does not dispute the existence and role of national mechanisms ensuring that the bid be assessed in a way which guarantees that the price not be lower than the market price and does not establish that the continuity of service requirement is a public service obligation, but confines itself to claiming that the [OSCURATO:PERSONA] should have held that continuity of service was a major obligation and a selection criterion. 96. In that regard, it should be noted that the [OSCURATO:PERSONA] held, in paragraph 134 of the judgment under appeal, first, that the determinant criterion applied by the independent expert was that of price, in light of the fact that both [OSCURATO:PERSONA][OSCURATO:PERSONA] 134 and the call for declarations of interest provided that the sale price of the assets could not be lower than the market price, as determined by the independent expert, and, secondly, that the continuity of service criterion was a secondary criterion in relation to that of price, in the context of the assessment of offers by the extraordinary administrator. [OSCURATO:PERSONA] held, in paragraph 137 of that judgment, that a continuity of service obligation did not necessarily imply the imposition of a public service obligation on the operator whose bid was accepted. Those findings have not been called into question by [OSCURATO:PERSONA]. 97. In any event, [OSCURATO:PERSONA] did not adduce evidence before the [OSCURATO:PERSONA] that the need to ensure continuity of service of air transport in the medium term resulted in a reduction of the price of [OSCURATO:SOCIETA] group assets below the market price. [OSCURATO:PERSONA] was, therefore, correct, in paragraph 134 of the judgment under appeal, to reject that argument. 98. [OSCURATO:PERSONA] argument that, in paragraph 136 of the judgment under appeal, the [OSCURATO:PERSONA] distorted the evidence, must be rejected. Assuming, as [OSCURATO:PERSONA] claims, that only one of the 60 bids submitted related to [OSCURATO:SOCIETA]’s main activity as a whole and the continuity of service obligation, that fact does not in itself establish that that obligation was a public service obligation. 99. In those circumstances, the argument that, if a public service obligation had been imposed, the [OSCURATO:PERSONA] would have had the duty to investigate the absence of aid and the [OSCURATO:PERSONA] should have found fault with the absence of such an examination, must be held to be ineffective. 100. It follows from the foregoing that the fifth ground of appeal must be rejected. The sixth ground of appeal: failure to identify the undertaking obliged to repay the aid Arguments of the parties 101. [OSCURATO:PERSONA] alleges that the [OSCURATO:PERSONA] distorted the evidence by accepting that CAI was not the economic successor of [OSCURATO:SOCIETA]. The latter was not broken up and only one very insignificant part of the cargo business was terminated. CAI’s intention was to pursue the entirety of [OSCURATO:SOCIETA]’s passenger transport business. 102. [OSCURATO:PERSONA] considers that the [OSCURATO:PERSONA] correctly held that there was no economic continuity and that [OSCURATO:PERSONA] had not demonstrated distortion of the evidence concerning the sale of [OSCURATO:SOCIETA] group assets and the continuity of its business, but merely repeated the evidence already adduced at first instance. 103. According to [OSCURATO:PERSONA]CAI, the sixth ground of appeal is inadmissible because it concerns matters of fact. [OSCURATO:PERSONA] assessment is, in any event, consistent with the case-law and the [OSCURATO:PERSONA]’s practice relating to economic continuity between undertakings. 104. [OSCURATO:PERSONA] considers that it is redundant to discuss whether or not there is economic continuity between [OSCURATO:SOCIETA] and CAI because that continuity is specifically excluded from the procedure for sale, which, in any event, did not allow CAI to pay a price below the market price. Findings of the [OSCURATO:PERSONA] 105. First, it should be noted that, in paragraph 141 of the grounds for the second contested decision, the [OSCURATO:PERSONA] found that the bid submitted by CAI concerned only the passenger air transport business. As the [OSCURATO:PERSONA] pointed out in paragraph 160 of the judgment under appeal, the [OSCURATO:PERSONA] found that CAI would take over only certain assets relating thereto. Moreover, it is apparent from paragraph 66 of the grounds for the second contested decision that CAI’s bid covered all the timetable slots corresponding to the assets purchased in the procedure. It does not therefore follow that CAI’s bid covered 100% use of [OSCURATO:SOCIETA]’s timetable slots for passenger transport. [OSCURATO:PERSONA], it is apparent from paragraph 141 of the grounds for that decision that that bid concerned approximately one half of the 180 [OSCURATO:SOCIETA] aircraft and that the new company will operate only part of the corresponding timetable slots. 106. It follows from the foregoing that the [OSCURATO:PERSONA] did not distort the evidence which was submitted to it. 107. The sixth ground of appeal must, therefore, be rejected. The seventh ground of appeal: inadequate statement of reasons concerning the assessment of the admissibility of the application for partial annulment of the first contested decision Arguments of the parties 108. [OSCURATO:PERSONA] claims that the [OSCURATO:PERSONA], in paragraph 197 of the judgment under appeal, did not state sufficient reasons why its action was inadmissible, thus infringing its obligation to state reasons and distorting the evidence which showed that the first contested decision had significantly affected [OSCURATO:PERSONA] competitive position. 109. [OSCURATO:PERSONA] and [OSCURATO:PERSONA]CAI contend that the ground of appeal is in part unfounded and in part inadmissible. [OSCURATO:PERSONA] considers, in particular, that, if it is confirmed that there was no economic continuity between [OSCURATO:SOCIETA] and CAI, the examination of the seventh ground of appeal becomes redundant. Findings of the [OSCURATO:PERSONA] 110. It should be recalled that the duty incumbent upon the [OSCURATO:PERSONA] under [OSCURATO:PERSONA] 36 and the first paragraph of [OSCURATO:PERSONA] 53 of the Statute of the [OSCURATO:PERSONA] to state reasons for its judgments does not require the [OSCURATO:PERSONA] to provide an account that follows exhaustively and one by one all the arguments articulated by the parties to the case. The reasoning may therefore be implicit, on condition that it enables the interested parties to know the grounds upon which the [OSCURATO:PERSONA] relied and provides the [OSCURATO:PERSONA] with sufficient material for it to exercise its powers of review on appeal ([OSCURATO:PERSONA] C‑320/09 P A2A v [OSCURATO:PERSONA] [2011] ECR I‑0000, paragraph 97 and case-law cited). 111. In the present case, suffice it to point out that the reasoning set out by the [OSCURATO:PERSONA] in paragraphs 193 to 199 of the judgment under appeal allows both [OSCURATO:PERSONA] to know why the [OSCURATO:PERSONA] dismissed its application for partial annulment of the first contested decision and the [OSCURATO:PERSONA] to have sufficient material to exercise its power of review. 112. In that regard, the [OSCURATO:PERSONA] held, in paragraph 194 of the judgment under appeal, that, in accordance with settled case-law, a decision is of individual concern to the undertaking which was at the origin of the complaint which led to the opening of the investigation procedure and whose position on the market was significantly affected by the aid which is the subject of that decision. [OSCURATO:PERSONA], in paragraph 196 of the judgment under appeal, acknowledged the active role played by [OSCURATO:PERSONA] in the procedure which preceded the adoption of the first contested decision. On the other hand, it stated, in paragraph 197 of that judgment, that [OSCURATO:PERSONA] had not demonstrated that its competitive position was adversely affected by the first contested decision. 113. Moreover, it must be held that, contrary to what is claimed by [OSCURATO:PERSONA], the [OSCURATO:PERSONA] cannot be criticised by [OSCURATO:PERSONA] for failing to explain why the effects on [OSCURATO:PERSONA] of the disputed elements of the first contested decision were not materially different from those faced by other airline companies. On the contrary, as the [OSCURATO:PERSONA] has argued, it was for [OSCURATO:PERSONA] to show that the loan had allowed [OSCURATO:SOCIETA] and CAI to acquire market shares held by [OSCURATO:PERSONA] or to retain market shares which [OSCURATO:PERSONA] would otherwise have held. 114. The seventh ground of appeal must therefore be rejected as being unfounded. 115. It follows from all of the foregoing that the appeal must be dismissed in its entirety as being unfounded. Costs 116. [OSCURATO:PERSONA] 138(1) of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, which applies to appeal proceedings by virtue of [OSCURATO:PERSONA] 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the [OSCURATO:PERSONA] and [OSCURATO:PERSONA]CAI have applied for costs and [OSCURATO:PERSONA] has been unsuccessful, the latter must be ordered to bear, in addition to its own costs, all the costs incurred by the [OSCURATO:PERSONA] and [OSCURATO:SOCIETA]‑CAI in the context of the present appeal. 117. Pursuant to [OSCURATO:PERSONA] 140(1) of the Rules of Procedure, which also applies to appeals by virtue of [OSCURATO:PERSONA] 184(1) thereof, [OSCURATO:PERSONA] which have intervened in the proceedings are to bear their own costs. Therefore, the [OSCURATO:PERSONA] shall bear its own costs. [OSCURATO:PERSONA] part On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby 1. Dismisses the appeal; 2. [OSCURATO:PERSONA] to bear, in addition to its own costs, the costs incurred by the [OSCURATO:PERSONA] and [OSCURATO:SOCIETA] - [OSCURATO:SOCIETA]; 3. [OSCURATO:PERSONA] the [OSCURATO:PERSONA] to bear its own costs.