This case allows for substantive arguments when an Applicant who can show no direct and individual concern, and is in no position to challenge the merits of the decision, is raising a plea alleging the existence of doubts, and that ESA consequently should have initiated a formal investigation procedure. The Court found that the use of such arguments does not change the subject matter of the action of the conditions for its admissibility, and thus strengthens the position of an Applicant seeking to safeguard its procedural rights.
With this decision the Court also confirms the CJEU and Commission practise to consider that, when a sale procedure or a tender procedure is made on terms unacceptable to a private investor, as would be the case if the price obtained is lower than what would have been obtained if the tender procedure used the price or leasing charge as the sole or main criterion, the reduced price will contain State aid. The Court did not discuss whether the State in this case could act both as a sector regulator and as an economic operator, and no distinction were made between the States obligation as an owner of the fibres and its obligation as a public authority in the broadband sector.
Keywords: EFTA Court, Individual concern, Market Economy Investor Principle, Public procurement, Tenders.