The Commission has opened an in-depth investigation to assess whether the sale of the Nürburgring racetrack complex in Germany to Capricorn Nürburgring Besitzgesellschaft GmbH ('Capricorn') is in line with EU State aid rules. The measure was found to be in line with State aid rules in October 2014, but the Commission's decision was annulled by the Court of Justice on 2 September 2021.
The Commission's investigation
Following the insolvency of the public companies which owned the Nürburgring racetrack complex, in 2014 the German authorities ran a tender process and sold the racetrack to Capricorn. In October 2014, the Commission found that: (i) some of the measures adopted in favour of the previous owners of the racetrack complex constituted illegal State aid, and (ii) the sale of the racetrack complex to Capricorn did not constitute State aid.
On 2 September 2021, the Court of Justice confirmed the 2014 Commission decision as regards to the measures in favour of the previous owners of Nürburgring. However, the Court found that the Commission should have opened a formal investigation procedure to examine whether the tender for the sale of the racetrack complex to Capricorn was open, transparent, and non-discriminatory.
Following the Court's judgment, the Commission will now further investigate the sale of the racetrack complex to Capricorn. In particular, the Commission will analyse:
- whether the decision to sell the Nürburgring racetrack complex in the context of the insolvency procedure was imputable to the German State or not;
- whether various aspects of the tender process, in particular the possibly non-binding nature of Capricorn's financing commitment, impacted the transparency and non-discriminatory nature of the process, resulting in an advantage to Capricorn;
- allegations relating to possible additional State aid to Capricorn after the tender, arising from the sale contract and from events following the sale, such as a reduction of the sale price and a payment deferral.
The opening of an in-depth investigation gives Germany and interested third parties the opportunity to submit comments. It does not prejudge the outcome of the investigation.
Background
According to Article 107(1) of the Treaty on the Functioning of the European Union, a measure constitutes State aid if the following four cumulative conditions are met: (i) the measure has to be granted by Member States through State resources; (ii) the measure has to confer a selective economic advantage to certain companies, (iii) the advantage has to distort or threaten to distort competition, and (iv) the measure has to affect trade between EU Member States. If any one of these elements is not fulfilled the measure does not constitute State aid. The Commission can exclude the granting of an advantage if the facts prove that a sale of assets was carried out through a competitive, transparent non-discriminatory and unconditional tender procedure.
