68In this case, it should be noted that the second contested decision is a decision adopted at the conclusion of the preliminary examination phase, under Article 4(2) of Regulation No 659/1999, whereby the Commission held that the notified measure did not fall within the scope of Article 87(1) EC and did not therefore constitute aid. It must also be noted that, by that decision, the Commission impliedly refused to open the formal investigation procedure. Thus, in the light of the case-law cited in paragraphs 61 to 64 and 66 above, concerning a decision adopted on the basis of Article 4(3) of Regulation No 659/1999, whereby the Commission had decided not to raise objections, it must be held that any interested party must be regarded as being directly and individually concerned by a decision finding the absence of aid at the conclusion of the preliminary examination phase. Even if such a decision has been adopted on the basis of Article 4(2), the beneficiaries of the procedural guarantees provided for in Article 88(2) EC and Article 6(1) of Regulation No 659/1999 can secure compliance with them only if they have the possibility of challenging the decision finding the absence of aid at the conclusion of the preliminary examination phase. Moreover, as regards decisions leading to the formal investigation procedure not being opened, capacity to bring an action for annulment cannot depend on the legal basis on which those decisions were adopted.