CELEX: 62020CJ0331
Appeal
State aid
Article 107(1) TFEU
European Commission decision on compensation to Sardinian airports for public service obligations
Existence of unlawful State aid incompatible with the internal market, granted by the Italian Republic to airlines through airport operators
Concept of ‘State aid’
Proof of the existence of an advantage
Determination of the amount
Market economy operator principle
Applicability and application
Test of the private acquirer of goods or services
Conditions
Burden of proof

By their respective appeals, Volotea SA and easyJet Airline Co. Ltd (‘easyJet’) seek to have set aside the judgments of the General Court of the European Union of 13 May 2020, Volotea v Commission (
T‑607/17
,
EU:T:2020:180
; ‘the judgment in Case T‑607/17’), and of 13 May 2020, easyJet Airline v Commission (
T‑8/18
,
EU:T:2020:182
; ‘the judgment in Case T‑8/18’) (together, ‘the judgments under appeal’), by which that court dismissed, respectively, the actions of Volotea and easyJet for annulment of European Commission Decision (EU) 2017/1861 of 29 July 2016 on State aid SA33983 (2013/C) (ex 2012/NN) (ex 2011/N) – Italy – Compensation to Sardinian airports for public service obligations (SGEI) (
OJ 2017 L 268, p. 1
; ‘the decision at issue’).
Background to the disputes
The background to the disputes, as set out in the judgments under appeal and in the decision at issue, may be summarised as follows for the purposes of the present judgment.
The measures at issue
The island of Sardinia (Italy) had five airports in 2010, including the airports of Cagliari-Elmas (Italy) and Olbia (Italy).
Cagliari-Elmas airport is operated by So.G.Aer SpA (‘Sogaer’), a company whose capital was owned as to more than 90% in the period from 2010 to 2013 (‘the 2010/2013 period’), by the Cagliari Chamber of Commerce, a public entity that is not controlled by the Regione autonoma della Sardegna (Autonomous Region of Sardinia, Italy) (‘the Autonomous Region’). For its part, Olbia airport was operated during the same period by Geasar SpA, a company whose capital was owned as to almost 80% by a private company, Meridiana SpA.
Law No 10/2010
On 13 April 2010, the Autonomous Region adopted the Legge regionale n. 10 – Misure per lo sviluppo del trasporto aereo (Regional Law No 10 – Measures for the development of air transport) (
Bollettino ufficiale della Regione Autonoma della Sardegna
No 12 of 16 April 2010; ‘Law No 10/2010’), Article 3 of which states:
‘1.   Expenditure of [EUR] 19700000 for the year 2010 and of [EUR] 24500000 for each of the years 2011 to 2013 shall be authorised to finance the island’s airports with a view to strengthening and developing air transport as a service of general economic interest, including by reducing the seasonality of air routes, in accordance with the Communication from the Commission 2005/C 312/01 [of 9 December 2015 on] Community guidelines on financing of airports and start-up aid to airlines departing from regional airports [(
OJ 2005 C 312, p. 1
)].
2.   The criteria, nature and duration of the transport offer, together with the guidelines for the drafting of plans of activities by the airport management companies … shall be defined by decision of the Regional Executive …
3.   The decision referred to in paragraph 2 and the plans of activities, including those already defined by the airport management companies on the date of entry into force of the present Law, together with the corresponding measures and contracts, shall be financed if they are drawn up in accordance with the criteria, nature and duration of the transport offer and with the guidelines referred to in paragraph 2 and shall first be submitted for a binding opinion to the competent committee.’
The acts implementing Article 3 of Law No 10/2010
The Executive of the Autonomous Region adopted several acts intended to implement the measures provided for in Article 3 of Law No 10/2010, in particular the deliberazione della Giunta regionale n. 29/36 (Regional Council Decision No 29/36) of 29 July 2010, the deliberazione della Giunta regionale n. 43/37 (Regional Council Decision No 43/37) of 6 December 2010 (‘Decision No 43/37’), and the deliberazione della Giunta regionale n. 52/117 (Regional Council Decision No 52/117) of 23 December 2011 (‘Decision No 52/117’) (together with Article 3 of Law No 10/2010, ‘the measures at issue’).
Those implementing acts defined three types of activity for which the Autonomous Region could grant financing to airport operators for the 2010/2013 period, namely:
–
‘increase of air traffic by airlines’ (activity 1), that activity being defined as the drawing up of business strategies and the provision of air transport services with the aim of, and consisting in, a reduction in the seasonality of tourist flows, an increase in the number of routes, a rise in the frequency of flights and an improvement in passenger handling and transport capacities;
–
‘promotion by airlines of [the island of] Sardinia as a tourist destination’ (activity 2), defined as comprising the provision of marketing and advertising services aimed at increasing the number of passengers and promoting the catchment area of the island’s airports;
–
‘further promotional activities entrusted by the airport operators to third-party service providers other than airlines, on behalf of the [Autonomous] Region’ (activity 3).
In addition, Regional Council Decision No 29/36, referred to in paragraph 6 above, stated, inter alia, that the general objectives of the measures provided for in Article 3 of Law No 10/2010 were the strengthening of the economic, social and territorial cohesion of the island of Sardinia, and the development of its local economy, tourism and culture. Those general objectives were themselves to be achieved and given concrete expression in practice by intermediate objectives consisting of developing and strengthening air transport to and from the island’s various airports, in particular by increasing the frequency and capacity of flights during the mid-seasons and the winter season and by opening new routes.
Lastly, that decision set out the criteria, nature and duration of the transport services for which financing could be granted for the 2010/2013 period and of the guidelines for the plans of activities which were to be drawn up by the public or private entities operating the various airports on the island (‘the airport operators’) and subsequently approved by the Autonomous Region as a condition for the grant of such financing. Those plans of activities were themselves to be put into effect by means of contracts between those airport operators and airlines.
In particular, it is apparent from that decision that, as regards the increasing of air traffic by airlines (activity 1), those plans of activities were to identify routes of national or international strategic interest and define the annual objectives which, in the eyes of each airport operator concerned, appeared to be achievable in terms of the frequency of the flights to be operated, the number of passengers to be carried and the new routes to be opened. Furthermore, as regards the promotion by airlines of the island of Sardinia as a tourist destination (activity 2), those plans of activities had to establish the specific marketing and advertising services to be provided in order to increase the number of passengers carried and promote the catchment area of the airport concerned. In both cases, the plans of activities in question had to be backed up by economic and financial forecasts relating to the prospects for profitability of the services to be provided.
In addition, it is apparent from Decisions No 43/37 and No 52/117 that the Autonomous Region, after approving the plans of activities in question, was to distribute the public funds referred to in Article 3 of Law No 10/2010 by determining the financing amount to be granted from its budget to each airport operator that had applied for it.
In that regard, those decisions provided, in particular, that the financing to be granted to each airport operator concerned would cover the difference between the costs that the various airlines selected by that airport operator for implementing its plan of activities was required to incur for fulfilling their obligations towards that airport operator, as stipulated in the contract binding the parties, and the income from the sale of tickets by each of those airlines to their respective passengers. In addition, the financing was to be granted in three instalments, the first by way of advance, the second as an interim payment and the third as the balance, which could be paid only after a review of the services provided, the results achieved and the costs incurred. Lastly, provision was made for the Autonomous Region and the airport operators, within the framework of their respective powers, both to review those services and to monitor the performance of the airlines that had provided them. That review and monitoring could lead, inter alia, to the adoption of penalties in the event of failure to reach the various annual targets to be achieved by the airlines which had concluded contracts for the provision of air transport, marketing or advertising services with the airport operators and to the recovery of any overcompensation that might have been paid to those airlines, having regard to the costs actually incurred by them.
Implementation of the measures at issue in respect of Volotea and easyJet
The airport operators which applied to make use of the mechanism established by the measures at issue, including Sogaer as regards the airport of Cagliari-Elmas and Geasar as regards Olbia airport, put that mechanism into effect by entering into a series of contracts with a wide range of airlines, including both ‘traditional’ airlines and so-called ‘low-cost’ and ‘charter’ airlines, among which figure, in particular, Volotea and easyJet.
–
Volotea’s situation
Volotea is an airline established in Spain which operates a network of short-haul routes to and from a range of airports within the European Union, including Cagliari-Elmas and Olbia.
In response to a call for expressions of interest published by Geasar in its capacity as operator of Olbia airport, Volotea submitted a plan for the operation and development of routes to and from that airport and a programme for the provision of marketing and advertising services.
After analysing that operating plan and programme, Geasar submitted plans of activities for 2010 and the period from 2011 to 2013 to the Autonomous Region, together with corresponding applications for financing. By Decisions No 43/37 and No 52/117, the Autonomous Region approved those plans of activities and fixed the amounts granted to Geasar for 2010 and the period from 2011 to 2013.
On 4 April 2012 and 31 March 2013, Geasar and Volotea entered into two contracts relating to the operation by Volotea of routes to Bordeaux (France), Genoa (Italy), Nantes (France), Palermo (Italy) and Venice (Italy) and the provision of marketing and advertising services concerning the introduction of new routes and the increasing of passenger handling and transport capacities.
In addition, in response to a notice published by Sogaer in its capacity as operator of Cagliari-Elmas airport, Volotea submitted a plan for the operation and development of routes to and from that airport and a programme for the provision of marketing and advertising services.
After analysing that operating plan and programme, Sogaer submitted plans of activities for 2010 and for the period from 2011 to 2013 to the Autonomous Region, together with corresponding financing applications. By Decisions No 43/37 and No 52/117, the Autonomous Region approved those plans of activities and set the amounts granted to Sogaer for 2010 and the period from 2011 to 2013.
On 26 February 2012, Sogaer and Volotea entered into a contract for the provision of marketing services concerning the opening of new routes and the increasing of passenger handling and transport capacities.
–
easyJet’s situation
easyJet is an airline established in the United Kingdom which operates a network of short-haul routes to and from EU airports, including Cagliari-Elmas and Olbia.
In response to a call for expressions of interest published by Geasar in its capacity as operator of Olbia airport, easyJet submitted a plan for the operation and development of routes to and from that airport and a programme for the provision of marketing and advertising services.
After analysis of that business plan and programme, then the submission by Geasar of the plans of activities referred to in paragraph 16 above and, finally, approval of those plans by the Autonomous Region, Geasar and easyJet entered into three contracts under which easyJet undertook, first, to maintain or operate point-to-point routes between Olbia and the airports of Basel (Switzerland), Berlin-Schönefeld (Germany), Bristol (United Kingdom), Geneva (Switzerland), London Gatwick (United Kingdom), Lyon (France), Madrid-Barajas (Spain), Milan Malpensa (Italy) and Paris-Orly (France) and to achieve targets in terms of the carriage of passengers, and, second, to implement a programme of marketing and advertising services. The first of those contracts, signed on 17 March 2011, covered the period between 28 March 2010 and 27 March 2011. The second, signed on 25 January 2012, covered the period from 27 March 2011 to 30 March 2013. The third, signed on 1 March 2013, covered the period from 27 March 2013 to 30 March 2014.
In addition, in response to a notice published by Sogaer in its capacity as operator of Cagliari-Elmas airport, easyJet submitted a plan for the operation and development of routes to and from that airport and a programme for the provision of marketing and advertising services.
Following analysis of that business plan and programme, then the submission by Sogaer of the plans of activities referred to in paragraph 19 above and, finally, approval of those plans by the Autonomous Region, Sogaer and easyJet entered into a contract covering the period from 29 March 2010 to 28 March 2013, under which easyJet undertook, first, to maintain or operate point-to-point flights between Cagliari-Elmas and Basel, Berlin-Schönefeld, Geneva and London-Stansted (United Kingdom), and to achieve targets in terms of the carriage of passengers, and, second, to implement a programme of marketing and advertising services.
The decision at issue
On 30 November 2011, the Italian Republic notified Law No 10/2010 to the European Commission, in accordance with Article 108(3) TFEU.
By letter of 23 January 2013, the Commission informed the Italian Republic of its decision to initiate the formal investigation procedure provided for in Article 108(2) TFEU concerning the scheme established by Law No 10/2010. On 30 May 2013, that decision was published in the
Official Journal of the European Union
(
OJ 2013 C 152, p. 30
) and the Commission requested interested parties to submit any comments they might have on that scheme. In response to that request, various interested parties, including Volotea and easyJet, submitted written observations to the Commission on several occasions.
On 29 July 2016, the Commission adopted the decision at issue, which states as follows in Article 1 of the operative part thereof:
‘1.   The scheme that Italy established by [Law No 10/2010] does not involve State aid within the meaning of Article 107(1) [TFEU] in favour of [Sogaer] … and [Geasar] …
2.   The scheme that Italy established by Law [No ]10/2010 constitutes State aid within the meaning of Article 107(1) [TFEU] in favour of [15 airlines, including Volotea and easyJet], in so far as it relates to the operations of those airlines at Cagliari-Elmas airport and Olbia airport.
3.   The State aid referred to in paragraph 2 has been put into effect by Italy in breach of Article 108(3) [TFEU].
4.   The State aid referred to in paragraph 2 is incompatible with the internal market.’
Articles 2 to 4 of that decision, inter alia, require the Italian Republic to carry out the immediate and effective recovery of the aid referred to in Article 1 of the decision from its beneficiaries and to communicate a range of information to the Commission regarding that recovery.
It is apparent from recitals 394 to 406 of the decision at issue that that institution found, in essence, that the measures at issue could not be classified as State aid that benefited the airport operators concerned on two sets of grounds. First, those operators could not be considered as the ‘direct beneficiaries’ of an advantage granted under the State aid scheme established by those measures since they had acted
de jure
and de facto as ‘intermediaries’ on behalf of the Autonomous Region and had transferred all of the public funds mobilised by the region under that scheme to the airlines to which they were contractually bound. Nor, second, could they be regarded as having obtained an ‘indirect advantage’ under that scheme since they had benefited only from ‘mere secondary economic effects’ generated by that scheme, ‘similar’ to those which favoured undertakings active in other economic sectors connected with tourism.
By contrast, the Commission classified the measures at issue as State aid that benefited the airlines referred to in Article 1 of the decision at issue.
In that regard, the Commission inter alia found, first, that those measures originated in a law providing for the grant of public funds to the operators of certain airports on the island of Sardinia and the subsequent allocation of those public funds to the financing of contracts concluded by those airport operators with airlines, in the framework of a scheme whose main elements were put into place by that law and which were subject to the control of the Autonomous Region, elements which led the Commission to find the involvement of State resources (recitals 355 to 361).
Second, the Commission considered, in essence, that those measures granted a subsidy to the airlines that constituted an advantage for the purposes of Article 107(1) TFEU, which was not to be examined in the light of the market economy operator principle (recitals 362 to 388).
Furthermore, the Commission found in the decision at issue that the State aid thereby granted to the airlines was unlawful (recitals 407 to 409) and incompatible with the internal market (recitals 410 to 421).
The judgment in Case T‑607/17
By application lodged at the Registry of the General Court on 6 September 2017, Volotea brought an action for the annulment in part of the decision at issue, in so far as that decision concerned State aid from which Volotea had allegedly benefited under the scheme established by Law No 10/2010.
In support of its claims, Volotea raised five pleas in law alleging, in essence, (i) infringement of Article 107(1) TFEU, (ii) infringement of Article 107(3) TFEU, (iii) that the recovery order addressed to the Italian Republic was unlawful, (iv) failure to fulfil the duty of care incumbent on the Commission in the conduct of the procedure prior to the adoption of the decision at issue and (v) failure to state reasons and contradictory reasoning.
In the judgment in Case T‑607/17, the General Court held that none of those pleas was well founded and, consequently, it dismissed the action in its entirety.
The judgment in Case T‑8/18
By application lodged at the Registry of the General Court on 11 January 2018, easyJet brought an action for annulment of the decision at issue in its entirety or, in the alternative, in so far as that decision concerned State aid from which easyJet had allegedly benefited under the scheme established by Law No 10/2010.
In support of its claims, easyJet raised six pleas in law, the first to the third of which, in essence, alleged infringement of Article 107(1) TFEU, the fourth, infringement of Article 107(3) TFEU, the fifth, breach of the principle of the protection of legitimate expectations and, the sixth, an insufficient statement of reasons and contradictory reasoning.
In the judgment in Case T‑8/18, the General Court, in the first place, held that the action was admissible only in so far as it sought annulment of the contested decision to the extent that it concerned easyJet. In the second place, that court held that none of the pleas raised by easyJet was well founded. Consequently, it dismissed the action in its entirety.
Forms of order sought and procedure before the Court of Justice
By its appeal in Case C‑331/20 P, Volotea claims that the Court of Justice should:
–
set aside the judgment in Case T‑607/17;
–
annul the decision at issue in so far as it concerns Volotea or, in the alternative, refer the case back to the General Court; and
–
order the Commission to pay the costs incurred both at first instance and at the appeal stage.
By its appeal in Case C‑343/20 P, easyJet claims that the Court of Justice should:
–
set aside the judgment in Case T‑8/18;
–
annul the decision at issue in so far as it concerns easyJet or, in the alternative, refer the case back to the General Court; and
–
order the Commission to pay the costs incurred both at first instance and at the appeal stage.
The Commission contends that the Court should dismiss these two appeals and order Volotea and easyJet to pay the costs.
By letters of 12 February 2021, the parties to the present cases were requested to submit their observations on a possible joinder of the cases, with which they complied within the prescribed period.
By decision of 22 February 2021, after hearing the Judge-Rapporteur and the Advocate General, the cases were joined for the purpose of the oral part of the procedure and the Court’s decision.
On 10 June 2021, the parties to the present cases were requested to reply in writing to certain questions put by the Court, which they did within the time limits set for that purpose.
The appeals
In support of its appeal, Volotea relies on five grounds of appeal alleging, in essence, (i) errors of law in the interpretation and application in the present case of Article 107(1) TFEU, (ii) errors of law in the interpretation and application of Article 107(3) TFEU, (iii) an error of law in the application of the principle of the protection of legitimate expectations, (iv) an error of law in the assessment of compliance with the obligation to state reasons laid down in the second paragraph of Article 296 TFEU and, (v) infringement of the right to an effective remedy laid down in Article 47 of the Charter of Fundamental Rights of the European Union.
The first of those five grounds of appeal is divided into four separate complaints concerning, respectively, the interpretation and application in the present case of the conditions for the existence of an advantage, the selective nature of that advantage, the existence of State resources, and a distortion of competition, which Article 107(1) TFEU requires in order for State aid to be characterised as existing.
For its part, easyJet puts forward four grounds of appeal, all alleging, in essence, errors of law in the interpretation and application in the present case of the condition for the existence of an advantage under Article 107(1) TFEU.
Having regard to their purpose and content, which overlap to a great extent, the first complaint of the first ground of appeal in Case C‑331/20 P and the four grounds of appeal in Case C‑343/20 P will be examined together.
Arguments of the parties
The first complaint of the first ground of appeal in Case C‑331/20 P
In the first place, Volotea submits, in essence, that the General Court erred in its interpretation of the condition for the existence of an advantage set out in Article 107(1) TFEU and in the legal characterisation of the facts of the case in the light of that condition by holding, in paragraphs 102 to 110 of the judgment in Case T‑607/17, that the airport operators with which it entered into contracts to provide air transport, marketing and advertising services could not be regarded as having benefited from an advantage conferred by the Autonomous Region since they had acted solely as intermediaries on behalf of that region. As is clear from the findings of fact made by the General Court itself in paragraphs 92 and 169 of that judgment, those airport operators, when putting the scheme established by the measures at issue into effect, enjoyed discretion in the choice of the airlines with which they intended to conclude contracts for the provision of services and in modulating the remuneration to be paid to the airlines in return for the supply of those services, without being subject, in that respect, to the control of the Autonomous Region. Furthermore, contrary to what the General Court held in paragraphs 103, 104, 115, 116 and 120 of that judgment, the conclusion of those contracts was in the economic and commercial interests of those airport operators, consisting of increasing the activity at and the attractiveness of Cagliari-Elmas and Olbia airports, while financing for the contracts was provided, at least in part, from the own funds of the respective operator concerned, namely Sogaer and Geasar.
In the second place, the General Court committed several errors of law in finding, in paragraphs 116 to 121 and 124 to 151 of the judgment in Case T‑607/17, that the question of whether Volotea had benefited from an advantage granted by the Autonomous Region had to be assessed by applying the test of the private acquirer of goods or services rather than the market economy operator principle.
First of all, the market economy operator principle is the standard test that must be applied in order to assess whether particular public behaviour favours one or more undertakings, including where that behaviour consists, as in the present case, of acquiring goods or services. Consequently, contrary to what the General Court held in paragraphs 116 to 121 and 124 to 131 of the judgment in Case T‑607/17, that principle could, or even should, have been applied in the present case, even if the Autonomous Region was pursuing public policy goals and even if it acted, to that end, through airport operators as intermediaries that are not necessarily all public entities themselves. Specifically, the Autonomous Region sought, by means of the measures at issue and through legally empowered public or private entities, to acquire airline services to or from the island of Sardinia and marketing and advertising services which had the purpose and effect of promoting that destination, behaviour that has an economic dimension.
Next, the test of the private acquirer of goods or services, which the General Court applied in paragraphs 131 to 136 of the judgment in Case T‑607/17, in holding that this involved ascertaining whether two conditions were met, the first relating to an actual need for goods or services on the part of the person acquiring them, and the second to the implementation of an open, transparent and non-discriminatory tender procedure, is itself questionable. That court’s interpretation of that test infringes Article 107(1) TFEU, which, in particular, does not lay down any automatic link between the lack of a tender procedure and the existence of an advantage, in terms of that provision.
In addition, even if it were assumed that that test was applicable and was correctly interpreted, it was misapplied in the present case, in paragraphs 137 to 151 of the judgment in Case T‑607/17. Despite the General Court’s summary, superficial and baseless assertions in that regard, the Autonomous Region did have an actual need for air transport, marketing and advertising services. In any event, in the absence of proof by the Commission that there is no real need for goods or services on the part of a public entity acting as a private acquirer of goods or services, the existence of such a need must be accepted. In addition, in contrast to what was held by the General Court, a call for expressions of interest that was as effective as a tender procedure was carried out at the initiative of the airport operators.
Lastly, the General Court imposed unjustified evidential requirements on Volotea in paragraphs 105, 120, 143 and 144 of the judgment in Case T‑607/17, by reproaching Volotea, in repeated and categorical fashion, for failing to provide evidence in support of its claims that it had not received an advantage from the Autonomous Region, whereas it was primarily for the Commission to adduce the sufficient and necessary evidence to establish the existence of such an advantage, which the Commission did not do in the contested decision.
In the third and final place, Volotea argues that the reasoning of the General Court concerning the existence of an advantage, as set out in paragraphs 122 to 145 of the judgment in Case T‑607/17, amounts to it exceeding its jurisdiction. That court disregarded the limits set on its role as adjudicator of the lawfulness of Commission decisions by substituting its own criterion for the legal assessment and its own assessments of fact, in particular as regards the existence of an actual need for services on the part of the Autonomous Region, for the legal criterion used in the decision at issue and the assessments of fact made on the basis of that criterion.
The Commission submits, in the first place, in essence, that the General Court did not err in law in assessing and classifying the situation of the operators of Cagliari-Elmas and Olbia airports in the light of the measures at issue. That court correctly held, in paragraphs 102 to 110, 115 and 117 to 121 of the judgment in Case T‑607/17, that the advantage conferred by the Autonomous Region by means of those measures was not to be regarded as benefiting those two airport operators, even though they were formally and initially the recipients of the public funds paid by that region, but as benefiting the airlines to which those operators, acting as intermediaries on behalf of that region, ultimately transferred those public funds.
In the second place, the General Court did not err in law in finding that the Autonomous Region had conferred an advantage on Volotea through the two airport operators in question. As is apparent from paragraphs 118, 119, 122 to 133, 135 to 139 and 144 to 151 of the judgment in Case T‑607/17, the General Court, after analysing whether the conduct of the Autonomous Region was to be assessed in the light of the market economy operator principle, took the view that that body had acted with the aim of achieving public policy objectives, a situation which ruled out the application of that principle, while finding that that region had nevertheless thereby granted an advantage to Volotea by acquiring from it services that did not meet a genuine need, through the airport operators concerned. In addition, as is apparent from paragraphs 134, 135, 137, 140 to 143 and 146 of that judgment, the Autonomous Region failed to take procedural measures, such as carrying out a tender procedure, which would have enabled it to acquire those services on the most advantageous terms possible.
Furthermore, the General Court did not impose unjustified evidential requirements on Volotea but merely considered that Volotea’s claims relating to an actual need for air transport, marketing and advertising services on the part of the Autonomous Region and to the implementation of a procedure that was as effective as a tendering procedure were not substantiated.
In the third and last place, no criticism could be made that the General Court exceeded its jurisdiction by effecting legal analyses and factual assessments that differed from those in the contested decision. That court analysed the question of a genuine need for services on the part of the Autonomous Region, acting as a private acquirer of goods or services, solely for the purpose of responding to the arguments advanced by Volotea itself in that regard in order to challenge the validity of recitals 386 and 387 of the decision at issue, as is apparent from paragraph 131 of the judgment in Case T‑607/17.
The four grounds of appeal in Case C‑343/20 P
By its first ground of appeal, easyJet submits that the General Court erred in law in paragraph 107 of the judgment in Case T‑8/18 by mixing the assessment of the separate and cumulative conditions for the existence of an advantage and the involvement of State resources, as set out in Article 107(1) TFEU, and by subsequently finding, on the basis of that analysis, that an advantage had been granted to it.
Contrary to what is stated in that paragraph, it is important to ascertain, in order to determine if that undertaking enjoys an advantage in terms of Article 107(1) TFEU, whether the funds provided to an undertaking by a public entity, or a private entity acting on behalf of a public one, have been granted under a contract that reflects normal market conditions. Furthermore, classification as an ‘advantage’ should be ruled out in the case of contracts such as those at issue in the present case if those contracts may be regarded,
ex ante
, as being consistent with economic and commercial logic for the airport operators which entered into them. Lastly, since the General Court allegedly accepted, in paragraph 176 of the judgment in Case T‑8/18, that such was the case for the contracts between easyJet and the operators of Cagliari-Elmas and Olbia airports, it should have found that no advantage had been conferred on easyJet.
By its second ground of appeal, easyJet, first, criticises the General Court for finding that the market economy operator principle was not applicable in the present case and, second, for holding that an advantage had been granted to it by the Autonomous Region, acting through the operators of Cagliari-Elmas and Olbia airports, under the contracts for the provision of air transport, marketing and advertising services concluded with those operators.
In that regard, first, the General Court’s refusal to apply the market economy operator principle is vitiated by errors of law in that it relies, as is apparent in particular from paragraphs 175 to 178 and 190 to 193 of the judgment in Case T‑8/18, on the fact that the airport operators through which the public funds covered by the measures at issue were transferred are not public entities.
First of all, that formalistic reasoning infringes both Article 345 TFEU, which presupposes the neutrality of EU law with regard to the system of property ownership, and the general principle of equal treatment. Next, that reasoning is contradictory in that, in the assessment of the condition for the existence of an advantage for the purposes of Article 107(1) TFEU, it attributes decisive importance to the fact that the airport operators at issue in the present case were private undertakings, whereas the General Court, in its analysis of the condition for the existence of State resources laid down by that provision, found that the decisive control exercised by the Autonomous Region over those operators for putting the measures at issue into effect made it possible to impute to the Italian Republic the funds paid by those operators to the airlines, and to consider those funds as State resources, despite those operators being private undertakings. Furthermore, such reasoning breaches the rights of the defence by imposing on airlines such as easyJet a presumption, that is impossible to rebut in practice, that the public funds mobilised by those operators to pay for services provided by those airlines constitute an advantage conferred on the airlines by the State, even though those services and the contracts which stipulate them are rational and profitable from an economic, commercial and financial point of view. Finally, that reasoning would have the effect of making the classification of ‘State aid’ dependent on the form which the State measures may take or the means which may be employed to implement them rather than on their effects. The same criticism applies to the emphasis placed by the General Court, in paragraphs 189 and 190 of the judgment in Case T‑8/18, on the public policy objectives pursued by the measures at issue.
Second, the General Court’s refusal to apply the market economy operator principle is improper in that that principle constitutes the standard criterion that must be applied, including in a situation such as that of the present case, to determine whether an advantage has been granted, directly or indirectly, to certain undertakings, and because not applying that principle led that court to find incorrectly, in paragraphs 216 to 218 of the judgment in Case T‑8/18, that easyJet was accorded an advantage, whereas the contracts it concluded with the respective operators of Cagliari-Elmas and Olbia airports should have been categorised as conduct taking place in normal market conditions. Those operators, which had neither a legal obligation to enter into any contracts with airlines nor an obligation to ensure that those contracts were preceded by a tender procedure, chose voluntarily to conclude such contracts. Furthermore, the contracts concluded with easyJet provided for the various air transport, marketing and advertising services which it undertook to provide to Geasar and Sogaer to be remunerated at the right price.
In its reply, easyJet adds that, even where there are doubts as to the applicability of the market economy operator principle, connected with the exercise of public powers, the Member State which gives rise to conduct or a measure capable of being caught by the prohibition on State aid laid down in Article 107(1) TFEU is still entitled, as are the undertakings which benefit from that measure, to attempt to show, by means of objective and verifiable evidence, that that conduct or measure corresponds to conduct or a measure that a market economy operator would have adopted. It follows that that evidence, which existed in the present case, should not have been disregarded by the Commission in the contested decision and then by the General Court in the judgment in Case T‑8/18.
Moreover, the General Court reversed the burden of proof in paragraph 217 of that judgment by faulting easyJet for failing to produce sufficient evidence to call into question the Commission’s findings relating to the anomalous nature of the remuneration paid to it, whereas it was for that institution to prove first that such remuneration did not constitute a normal market price, which it omitted to do in the decision at issue.
Third, and in any event, the General Court erred in law in paragraphs 178 and 218 of that judgment by holding that the advantage obtained by easyJet corresponded to the total amount of that remuneration. In fact, only the difference between the remuneration which easyJet could have obtained under normal market conditions and the remuneration actually paid to it by the airport operators could have been classified as an ‘advantage’.
In its third ground of appeal, easyJet submits, first of all, that the General Court erred in law by finding that the operators of Cagliari-Elmas and Olbia airports had to be regarded as having acted as intermediaries of the Autonomous Region, even though the measures at issue explicitly identified the operators as the beneficiaries of the scheme which the measures established. Categorisation as an ‘intermediary’ presupposes that the interested parties enjoy no discretion in the use of the funds they receive under a scheme such as the one put into place by those measures. In the instant case, even though the General Court found, in paragraphs 126 and 127 of the judgment in Case T‑8/18, that those measures allowed the airport operators discretion over certain key aspects of their implementation, such as choosing the activities to be financed with the funds allocated by the Autonomous Region or the selection of the undertakings charged with carrying out those activities, it did not draw the legal consequences from those findings in its analysis of whether those operators had benefited from an advantage in the present case.
Next, that court failed to take into account other objective and verifiable evidence showing the existence and extent of that discretion, beginning with the fact, referred to in paragraph 209 of the judgment in Case T‑8/18, that the airlines had been selected by means of calls for expressions of interest, which enabled the airport operators to accept the bids that were most attractive to them. Similarly, those operators were able to decide on the length and other terms of the contracts which they intended to conclude with those companies.
Lastly, the General Court disregarded its own case-law, which shows that it is necessary, when dealing with the kind of scheme established by the measures at issue, to determine whether the discretion enjoyed by the entities responsible for its implementation relates to defining the key elements of that scheme, in which case those entities cannot be classified as intermediaries, or whether that discretion is restricted to the technical application of that scheme, in which case such a classification is possible.
By its fourth ground of appeal, easyJet criticises, in the first place, paragraphs 225 and 226 of the judgment in Case T‑8/18, by which the General Court held that easyJet, like other airlines, was the final beneficiary of an advantage granted by the Autonomous Region and that the operators of Cagliari-Elmas and Olbia airports, through which the funds constituting such an advantage had passed, had not themselves benefited from any advantage since they had transferred all of the funds to those airlines. That reasoning contradicts the case-law of the Court of Justice, from which it follows that the General Court should have determined whether the airport operators, the direct beneficiaries of the measures at issue, had obtained an advantage by means of them, while the existence of that advantage cannot be called into question by the subsequent transfer of a part of the corresponding funds to airlines such as easyJet.
In the second place, the General Court, in essence, wrongly found in paragraphs 97, 120, 134, 179, 192, 216, 218, 225 and 226 of that judgment, that the measures at issue conferred an advantage on airlines such as easyJet, while only benefiting the airport operators in the form of mere secondary economic effects. The correct legal classification of the facts of the case should have led the court to the opposite conclusion, since the airport operators had used public funds to finance the acquisition of services which they should have financed themselves under normal market conditions, while the airlines had been remunerated, under normal market conditions, for the services which they had provided.
The Commission contends, primarily, that the first ground of appeal is inadmissible inasmuch as it does not identify precisely or with sufficient precision all the paragraphs of the judgment in Case T‑8/18 concerning the existence of an advantage to which that ground refers and, in the alternative, that that ground of appeal is ineffective or unfounded. Paragraph 107 of that judgment, the only one specifically identified by easyJet, relates to whether the measures at issue constituted State resources and not to the existence of an advantage. Furthermore, paragraphs 141 and 169 to 238 of that judgment, concerning the existence of an advantage, do not refer to paragraph 107.
As regards the second ground of appeal, the Commission, in the first place, submits that to the extent that it is sufficiently precise to be considered admissible, the plea is unfounded in so far as easyJet criticises the General Court for holding, in paragraphs 189 to 193 of the judgment in Case T‑8/18, that the decision at issue had correctly ruled out the possibility of applying the market economy operator principle to the conduct of the Autonomous Region. Since the airport operators were not owned by that body, it would not have been justified to examine whether the region, in granting the operators public funds in line with the detailed rules laid down by the measures at issue, had acted like a market economy operator seeking to carry out the kind of investments that would provide it with an economic, commercial and financial benefit. Moreover, as the Commission made apparent in the contested decision, the adoption of the measures at issue was clearly motivated by public policy objectives, more specifically, objectives of regional development, and not by considerations of an economic, commercial and financial nature.
In the second place, the Commission argues that easyJet is also not justified in criticising the General Court for having held, in paragraphs 171 to 182 of the judgment in Case T‑8/18, that the decision at issue was right to exclude the application of the market economy operator principle so as to cover, in the light of Article 107(1) TFEU, the contracts concluded by the operators of Cagliari-Elmas and Olbia airports with the airlines serving those airports.
First, as the General Court found, those airport operators are not public entities.
Second, that court did not err in interpreting or applying Article 107(1) TFEU in holding that those operators, when they concluded the contracts at issue, had ultimately merely implemented the State aid scheme put in place by the measures at issue and used the public funding allocated to them for that purpose, in accordance with the Autonomous Region’s instructions, before going on to conclude from this that such a situation justified classifying the airport operators as intermediaries and ruling out their having behaved like market economy operators. According to the case-law of the Court, the market economy operator principle is applicable only where a State, directly or indirectly, grants an advantage as an economic operator, and not in its capacity as a public authority, which is not the situation in the present case. In addition, the Commission argues that easyJet is not justified in claiming that the General Court accepted that those contracts may have been or appeared to be profitable at the time they were entered into, or that that court erred in law by finding that the airport operators’ contribution to the funding of the contracts was limited.
In the third and last place, the Commission submits that easyJet’s arguments relating to paragraphs 189 to 218 of the judgment in Case T‑8/18, in which the General Court assessed the conduct of the Autonomous Region as a private acquirer of goods or services, assuming them to be effective, likewise cannot succeed. In fact, easyJet does not contest the specific paragraphs of that judgment in which the General Court held that the Autonomous Region did not have a genuine need for services. In addition, the appellant does not call into question that court’s assessment that the airport operators would not been inclined to enter into contracts with airlines, at least not in such volume and at such a level of remuneration, without funding from public resources. Lastly, given that there was no genuine need for services on the part of the Autonomous Region, the General Court’s findings as to the absence of a tender procedure were made for the sake of completeness and cannot therefore be usefully called into question by easyJet. In any event, the calls for expressions of interest which preceded the conclusion of the contracts at issue are not equivalent to a tender procedure.
The third ground of appeal, for its part, is ineffective since the reasoning of the judgment in Case T‑8/18 which it concerns is related to the question of whether the payments made by the operators of Cagliari-Elmas and Olbia airports to airlines such as easyJet were imputable to the Autonomous Region and constituted State resources, and not the separate question of whether those airlines had thereby gained an advantage. In any event, that ground of appeal is unfounded. In the paragraphs contested by easyJet within this ground of appeal, the General Court found that, in view of the wording and scheme of the measures at issue and the detailed rules for implementing them, the airport operators had to be regarded as being circumscribed and controlled
ex ante
by the Autonomous Region with regard to a number of essential elements, even while having some discretion over secondary aspects; that assessment, which cannot be challenged in an appeal, does not contain any errors in the legal characterisation of the facts and does not contradict itself. Furthermore, the case-law of the General Court referred to by easyJet concerns a separate question, relating to the constituent elements of the concept of an ‘aid scheme’.
For its part, the fourth ground of appeal is, at least in part, ineffective in so far as it refers to findings by which the General Court, for the sake of completeness, rejected, on the merits, arguments made by easyJet which the court had previously held to be inadmissible, something which easyJet does not dispute in its appeal. In any event, this ground of appeal is unfounded. The airport operators were not considered as intermediaries by the Commission in the decision at issue, and then by the General Court in the judgment in Case T‑8/18, because they had transferred the funds allocated by the Autonomous Region to the airlines, but because the measures at issue had not alleviated those operators of any cost or charge that they would have borne under normal market conditions.
Findings of the Court
Admissibility
The Commission disputes the admissibility of the first and second grounds of appeal in Case C‑343/20 P.
As regards the first of those grounds of appeal, the Commission submits, primarily, that it does not precisely identify the grounds of the judgment in Case T‑8/18 to which it relates.
In that regard, it is clear from Article 169(2) of the Rules of Procedure of the Court of Justice that the pleas in law must identify precisely the grounds of the decision of the General Court which are contested by the appellant.
In addition, it follows from the settled case-law of the Court that failure to comply with that requirement results in the inadmissibility of the ground of appeal that does not satisfy that requirement (judgments of 11 September 2014, MasterCard and Others v Commission,
C‑382/12 P
,
EU:C:2014:2201
, paragraph
, and of 28 April 2022, Changmao Biochemical Engineering v Commission,
C‑666/19 P
,
EU:C:2022:323
, paragraph
).
However, it must be found in the present case that the first plea raised in support of the appeal in Case C‑343/20 P identifies the specific paragraph of the grounds of the judgment in Case T‑8/18 which is contested by easyJet, namely paragraph 107. Furthermore, that ground of appeal identifies precisely the error of law allegedly vitiating that paragraph, which consists, in essence, of the General Court having erroneously mixed the analysis of two of the different cumulative conditions which must be satisfied in order to find the existence of State aid, namely the condition of the grant of an advantage by the State and the condition that that advantage must have been conferred by means of State resources.
As to the Commission’s submission, in the alternative, that that ground of appeal is, in any event, insufficiently precise or even ineffective, inasmuch as the paragraph which it identifies comes within the grounds of the judgment in Case T‑8/18 related to the part of the decision at issue that deals with State resources, and not the separate grounds of that judgment which concern the question whether there was an advantage, on which the legal arguments put forward by easyJet focus, it should be added that although that observation related to the structure of the General Court’s reasoning is correct, it nevertheless does not mean that the ground of appeal in question is ineffective.
Contrary to the Commission’s submission, the General Court, when examining the question of whether there was an advantage, referred back in general terms to the grounds it had previously devoted to the question of State resources, as is apparent from paragraph 174 of the judgment in Case T‑8/18, according to which, ‘so far as concerns the argument of the applicant relating to the application of the market economy operator principle in the light of the airport operators’ autonomy in using the funds provided by the Autonomous Region and in defining their contractual relations with the airlines, it is appropriate to reject it for the reasons already set out above addressing the second part of the first plea’.
Moreover, the paragraph of that judgment which is criticised by easyJet, paragraph 107, is one of the key paragraphs of the grounds to which the General Court thus referred. In that paragraph, the General Court set out, for the first time, its assessment that ‘it must be held that, as long as it can be determined, as in the present case, that an advantage originating from State resources has been transferred by the immediate recipient to a final beneficiary, it is irrelevant that that transfer was made by the immediate recipient in accordance with commercial principles or, on the contrary, [that it] met an objective of general interest’. Furthermore, that assessment is subsequently reproduced and explained in various ways by that court for the purpose of reviewing the lawfulness of the findings and assessments made by the Commission in the contested decision on the existence of an advantage, in particular in paragraphs of that judgment which are covered by easyJet’s other grounds of appeal, including paragraphs 176 to 178, 189 to 191, 225 and 226.
In the light of those factors, easyJet cannot be criticised for having failed to identify more precisely than it did the source of the error of law that it imputes to the General Court.
As regards easyJet’s second ground of appeal, the Commission claims, in general fashion, that that plea is too imprecise to be admissible.
In that regard, in the first place, it should be observed that that ground of appeal, in accordance with the requirement laid down in Article 169(2) of the Rules of Procedure and referred to in paragraph 86 above, identifies a specific set of grounds in the judgment in Case T‑8/18 which easyJet claims are vitiated by errors of law, namely paragraphs 175 to 178, 189 to 193 and 216 to 218 thereof.
In the second place, it follows from the settled case-law of the Court that, in addition to that requirement, any appellant is obliged, having regard to the second subparagraph of Article 256(1) TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of the Rules of Procedure, to indicate precisely the legal arguments specifically advanced in support of each of the various grounds of appeal on which it relies, failing which the ground or grounds not complying with that requirement will be rejected as inadmissible (judgments of 3 September 2015, Inuit Tapiriit Kanatami and Others v Commission,
C‑398/13 P
,
EU:C:2015:535
, paragraph
, and of 15 July 2021, Deutsche Lufthansa v Commission,
C‑453/19 P
,
EU:C:2021:608
, paragraph
).
As is apparent from paragraphs 64 to 70 above, easyJet has also complied with that requirement in the present case.
Consequently, the first and second grounds of the appeal in Case C‑343/20 P are admissible.
Substance
It should be observed, as a preliminary point, that although the legal arguments put forward by Volotea in support of the first complaint of its first ground of appeal in Case C‑331/20 P and those submitted by easyJet in support of its four grounds of appeal in Case C‑343/20 P are not structured in the same way and although, on certain points, their content differs, those two sets of legal arguments nevertheless overlap to a large extent. In particular, by means of arguments that are largely similar and complementary as to their substance, both Volotea and easyJet dispute three essential and decisive aspects of the reasoning that the General Court put forward, in either identical or similar terms, in the judgments under appeal.
As is apparent from paragraphs 52 to 55, 64 to 69, 72 and 75 above, both appellants, first, find fault with the assessments by which the General Court held, in essence, that the question of whether the appellants had obtained an advantage granted by the Autonomous Region, acting through the operators of Cagliari-Elmas and Olbia airports, was not to be examined in the light of the market economy operator principle on the ground that that principle was not applicable in the present case given the public policy objectives pursued by the measures at issue, the fact that those airport operators were not public entities, and because those operators did not have significant autonomy in relation to the Autonomous Region in implementing those measures (paragraphs 116 to 119 and 124 to 127 of the judgment in Case T‑607/17 and paragraphs 174 to 177 and 190 to 193 of the judgment in Case T‑8/18).
Next, Volotea and easyJet dispute the assessments by which the General Court found that the question of whether they had benefited from an advantage granted by the Autonomous Region, acting through the operators of Cagliari-Elmas and Olbia airports, had to be analysed by applying a test that involved determining whether that region had behaved like a private acquirer of goods or services operating under normal market conditions (paragraphs 128 to 136 of the judgment in Case T‑607/17 and paragraphs 194 to 203 of the judgment in Case T‑8/18). In that regard, as is apparent from paragraphs 54, 55, 66 to 69, 72 and 75 above, Volotea focuses its criticism on the elements that the General Court held that it had to review pursuant to that test, namely the existence of a genuine need for services on the part of that region and the implementation of a tender procedure; easyJet, while it refers to the second of those elements, concentrates its criticism on the fact that the analysis of those elements, in substance, led the General Court to avoid or, at the very least, to fail properly to deal with the question of whether the contracts between the airlines and the airport operators had been concluded under normal market conditions.
Lastly, both Volotea and easyJet complain, in essence, that the General Court made an incorrect legal characterisation of the facts and failed to perform a serious examination of the evidence which they had adduced to challenge the Commission’s assessments and findings that the contracts they had concluded with the airport operators amounted to an advantage that they would not have obtained under normal market conditions (paragraphs 139, 143 and 144 of the judgment in Case T‑607/17, and paragraphs 189 to 193 and 216 to 218 of the judgment in Case T‑8/18).
It must be borne in mind, in the first place, that it follows from the settled case-law of the Court, first, that in order for a measure to be classified as ‘State aid’ within the meaning of Article 107(1) TFEU, all the conditions set out in that provision must be fulfilled (judgments of 21 March 1990, Belgium v Commission,
C‑142/87
,
EU:C:1990:125
, paragraph
, and of 11 November 2021, Autostrada Wielkopolska v Commission and Poland,
C‑933/19 P
,
EU:C:2021:905
, paragraph
).
They include, inter alia, the condition that the State measure at issue in a given case must confer a selective advantage on the recipient undertaking or undertakings (judgments of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg,
C‑280/00
,
EU:C:2003:415
, paragraph
, and of 11 November 2021, Autostrada Wielkopolska v Commission and Poland,
C‑933/19 P
,
EU:C:2021:905
, paragraph
).
Second, the concept of ‘advantage’, for the purpose of Article 107(1) TFEU, includes not only positive benefits, such as subsidies, but also interventions which, in various forms, mitigate the charges which would normally be included in the budget of the recipient undertaking or undertakings and which, therefore, are of the same character as subsidies and have the same effect (judgments of 15 March 1994, Banco Exterior de España,
C‑387/92
,
EU:C:1994:100
, paragraph
, and of 4 March 2021, Commission v Fútbol Club Barcelona,
C‑362/19 P
,
EU:C:2021:169
, paragraph
).
Accordingly, it is essentially the effects of the State measure at issue in a given case on the recipient undertaking or undertakings that must be taken into consideration in order to establish the existence of an advantage, whether that be granted directly by the State or by a public or private body which it has appointed or established for that purpose (judgments of 22 March 1977, Steinike & Weinlig,
78/76
,
EU:C:1977:52
, paragraph
, and of 15 May 2019, Achema and Others,
C‑706/17
,
EU:C:2019:407
, paragraph
).
By contrast, since Article 107(1) TFEU does not distinguish between the causes or objectives of State measures (judgments of 2 July 1974, Italy v Commission,
173/73
,
EU:C:1974:71
, paragraph
, and of 13 February 2003, Spain v Commission,
C‑409/00
,
EU:C:2003:92
, paragraph
), the nature of the objectives pursued by the Member State responsible for those measures or to which they may be imputed has no bearing whatsoever on the question of whether they grant an advantage to one or more undertakings and, more broadly, on whether they are to be classified as State aid (judgments of 8 December 2011, France Télécom v Commission,
C‑81/10 P
,
EU:C:2011:811
, paragraph
, and of 25 January 2022, Commission v European Food and Others,
C‑638/19 P
,
EU:C:2022:50
, paragraph
).
Consequently, any State measure which, whatever its form or objectives, is likely to favour one or more undertakings directly or indirectly, or which confers an advantage on them which they would not have been able to obtain under normal market conditions, must be regarded as satisfying the condition referred to in paragraph 103 above (judgments of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg,
C‑280/00
,
EU:C:2003:415
, paragraph
, and of 17 September 2020, Compagnie des pêches de Saint-Malo,
C‑212/19
,
EU:C:2020:726
, paragraph
).
Lastly, the characterisation of such an advantage as existing is, in principle, carried out by applying the market economy operator principle (judgments of 6 March 2018, Commission v FIH Holding and FIH Erhvervsbank,
C‑579/16 P
,
EU:C:2018:159
, paragraph
, and of 11 November 2021, Autostrada Wielkopolska v Commission and Poland,
C‑933/19 P
,
EU:C:2021:905
, paragraph
), unless there is no possibility of comparing the State conduct at issue in a particular case with that of a private operator because that conduct is inseparably linked with the existence of infrastructure that no private operator would ever have been able to create (see, to that effect, judgment of 3 July 2003, Chronopost and Others v Ufex and Others,
C‑83/01 P, C‑93/01 P and C‑94/01 P
,
EU:C:2003:388
, paragraphs
to
), or the State acted in its capacity as a public authority. In respect of that latter point, it must, however, be observed that the mere exercise of the prerogatives of a public authority, such as the use of means that are legislative or fiscal in nature, does not by itself render that principle inapplicable (see, to that effect, judgments of 5 June 2012, Commission v EDF,
C‑124/10 P
,
EU:C:2012:318
, paragraphs
and
; of 3 April 2014, Commission v Netherlands and ING Groep,
C‑224/12 P
,
EU:C:2014:213
, paragraph
; and of 6 March 2018, Commission v FIH Holding and FIH Erhvervsbank,
C‑579/16 P
,
EU:C:2018:159
, paragraph
). It is the economic nature of the State intervention at issue and not the means put into effect for that purpose that renders that principle applicable (judgment of 20 September 2017, Commission v Frucona Košice,
C‑300/16 P
,
EU:C:2017:706
, paragraph
).
The application of the market economy operator principle itself involves, as the Advocate General observed, in essence, in points 63, 71 and 74 of her Opinion, the use, on a case-by-case basis, of various specific tests which each aim to compare, in the most appropriate and adequate manner possible, the State measure at issue in a given case, taking account in particular of its nature, with a measure that might have been adopted by a private operator in a situation that is as alike as possible and acting under normal market conditions (see, to that effect, judgment of 6 March 2018, Commission v FIH Holding and FIH Erhvervsbank,
C‑579/16 P
,
EU:C:2018:159
, paragraphs
and
).
As is apparent from the settled case-law of the Court, those tests include, inter alia, that of the private investor, which applies in the case of State measures such as capital injections (judgments of 21 March 1991, Italy v Commission,
C‑305/89
,
EU:C:1991:142
, paragraphs
and
, and of 10 December 2020, Comune di Milano v Commission,
C‑160/19 P
,
EU:C:2020:1012
, paragraph
). They also include the private creditor test, which is applicable in the case of measures such as payment facilities for the repayment of a debt (judgments of 29 April 1999, Spain v Commission,
C‑342/96
,
EU:C:1999:210
, paragraph
, and of 20 September 2017, Commission v Frucona Košice,
C‑300/16 P
,
EU:C:2017:706
, paragraphs
and
), the private debtor test (judgment of 11 November 2021, Autostrada Wielkopolska v Commission and Poland,
C‑933/19 P
,
EU:C:2021:905
, paragraphs
and
), and the private vendor test, which is applicable in the case of measures related to the supply, directly or through public entities or private undertakings controlled by or under the influence of the State, of goods and services and the fixing of their conditions of sale, such as the price (see, to that effect, judgments of 2 February 1988, Kwekerij van der Kooy and Others v Commission,
67/85, 68/85 and 70/85
,
EU:C:1988:38
, paragraph
; of 11 July 1996, SFEI and Others,
C‑39/94
,
EU:C:1996:285
, paragraph
; and of 8 November 2001, Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke,
C‑143/99
,
EU:C:2001:598
, paragraphs
and
).
Third, it should be borne in mind that where the Commission initiates a procedure in relation to a State measure and adopts a decision at the end of that procedure in which it classifies that measure as ‘State aid’, it is for that institution to prove, in its decision, the existence of such aid and therefore, inter alia, that the measure confers an advantage on the recipient undertaking or undertakings, basing itself, after an investigation that must have been conducted diligently and impartially, on the most complete and reliable information possible for that purpose (judgment of 4 March 2021, Commission v Fútbol Club Barcelona,
C‑362/19 P
,
EU:C:2021:169
, paragraph
and the case-law cited).
However, observance of that obligation must be assessed in the light of the information available to the Commission at the time it adopted its decision (judgments of 10 July 1986, Belgium v Commission,
234/84
,
EU:C:1986:302
, paragraph
, and of 20 September 2017, Commission v Frucona Košice,
C‑300/16 P
,
EU:C:2017:706
, paragraph
), to the extent that that institution has made use of the powers that enable it to obtain all the information that appears to be necessary and useful to it, in particular its power to issue an order to the Member State responsible for the State measure at issue and which holds that information (see, to that effect, judgments of 14 February 1990, France v Commission,
C‑301/87
,
EU:C:1990:67
, paragraphs
to
, and of 20 September 2017, Commission v Frucona Košice,
C‑300/16 P
,
EU:C:2017:706
, paragraph
).
As regards, in particular, the application of the market economy operator principle in a specific case, it follows from the settled case-law of the Court that this involves the Commission showing, following an overall assessment that takes into consideration all the relevant evidence in the case, that the undertaking or undertakings benefiting from the State measure at issue would manifestly not have obtained a comparable advantage from a normally prudent and diligent private operator in a situation that is as alike as possible and acting under normal market conditions. Within that overall assessment, the Commission must have regard to all the options that such an operator would reasonably have envisaged, all the information available and likely to have a significant influence on its decision, and the developments that were foreseeable at the time when the decision to confer an advantage was taken (see, to that effect, judgments of 26 March 2020, Larko v Commission,
C‑244/18 P
,
EU:C:2020:238
, paragraphs
to
and
, and of 11 November 2021, Autostrada Wielkopolska v Commission and Poland,
C‑933/19 P
,
EU:C:2021:905
, paragraphs
to
).
In particular, the Commission must assess whether, at that time, the transaction by which the advantage was conferred could be considered rational from an economic, commercial and financial perspective, taking account of its prospects for profitability over the short or longer term and of the other commercial or economic interests which it involved (see, to that effect, judgments of 10 July 1986, Belgium v Commission,
234/84
,
EU:C:1986:302
, paragraphs
and
; of 21 March 1991, Italy v Commission,
C‑303/88
,
EU:C:1991:136
, paragraphs
and
; of 3 April 2014, Commission v Netherlands and ING Groep,
C‑224/12 P
,
EU:C:2014:213
, paragraph
; and of 10 December 2020, Comune di Milano v Commission,
C‑160/19 P
,
EU:C:2020:1012
, paragraph
).
In the present case, the General Court disregarded some of the requirements flowing from that case-law.
It is true that it rightly refrained, implicitly in the judgment in Case T‑607/17 and explicitly in paragraph 185 of the judgment in Case T‑8/18, from basing itself on the Commission’s finding that the Italian Republic had not relied on the market economy operator principle, given the lack of relevance of such a finding in the light of the Court’s settled case-law (judgments of 5 June 2012, Commission v EDF,
C‑124/10 P
,
EU:C:2012:318
, paragraphs
and
, and of 11 November 2021, Autostrada Wielpolska v Commission and Poland,
C‑933/19 P
,
EU:C:2021:905
, paragraph
).
However, it nevertheless considered that that principle had to be regarded as being inapplicable in the present case on three grounds, essentially relating, first, to the fact that the airport operators covered by the decision at issue were not State-owned entities (paragraphs 117 to 119, 124 and 125 of the judgment in Case T‑607/17 and paragraphs 175 to 177, 190 and 191 of the judgment in Case T‑8/18), second, to the fact that the aid scheme establishing the measures at issue pursued public policy objectives (paragraphs 124 to 127 and 130 of the judgment in Case T‑607/17, and paragraphs 190 to 193 of the judgment in Case T‑8/18), and, third, to the fact that those airport operators merely implemented that scheme and those measures without having in that context any significant autonomy in relation to the Autonomous Region (paragraphs 116, 118 and 119 of the judgment in Case T‑607/17 and paragraphs 174, 176 and 177 of the judgment in Case T‑8/18).
However, none of those grounds was capable of ruling out the applicability of the market economy operator principle.
Accordingly, neither the first nor the third of those grounds justified the conclusion that the applicability of that principle was ruled out, since it may also be applied when an advantage is conferred on one or more undertakings by the State directly or through private undertakings under its control or influence, as is apparent from the case-law cited in paragraphs 105 and 110 above and as the Advocate General observed in point 94 of her Opinion.
Similarly, the second ground relied on by the General Court by no means ruled out the applicability of the market economy operator principle, as is apparent from the case-law cited in paragraph 106 above and as the Advocate General observed in points 80, 82 and 95 of her Opinion. The pursuit of public policy objectives is in fact inherent in most of the State measures which may be classified as ‘State aid’ and examined, to that end, in the light of that principle (see, to that effect, judgments of 21 March 1991, Italy v Commission,
C‑305/89
,
EU:C:1991:142
, paragraph
, and of 14 September 1994, Spain v Commission,
C‑42/93
,
EU:C:1994:326
, paragraph
). The consequence of applying that principle, however, is that those measures must be examined while leaving aside such objectives (see, to that effect, judgment of 10 July 1986, Belgium v Commission,
234/84
,
EU:C:1986:302
, paragraph
) and the benefits linked to the State’s situation as a public authority which the implementation of those objectives is liable to generate (see, to that effect, judgments of 5 June 2012, Commission v EDF,
C‑124/10 P
,
EU:C:2012:318
, paragraph
, and of 6 March 2018, Commission v FIH Holding and FIH Erhvervsbank,
C‑579/16 P
,
EU:C:2018:159
, paragraphs
,
and
).
That being said, it must be stated that, while wrongly concluding that the market economy operator principle was inapplicable, the General Court nevertheless held, as Volotea and easyJet point out, that the airlines which had concluded contracts for the provision of air transport, marketing and advertising services with the operators of Cagliari-Elmas and Olbia airports had to be regarded as having benefited from an ‘advantage which they would not have obtained under normal market conditions’, on the ground that the remuneration paid to them under those contracts was not consideration for services which satisfied genuine needs on the part of the Autonomous Region and that those contracts had furthermore been entered into by the airport operators at issue without a tender procedure or equivalent procedure being carried out beforehand (paragraphs 128 to 149 of the judgment in Case T‑607/17 and paragraphs 174 and 194 to 217 of the judgment in Case T‑8/18).
Taking account of those assessments, the General Court held, in paragraph 150 of the judgment in Case T‑607/17 and in paragraph 218 of the judgment in Case T‑8/18, that the Commission had been entitled to conclude that the financing which the Autonomous Region, acting through those airport operators, had granted to Volotea and easyJet in return for the transport, marketing and advertising services provided by them had conferred an advantage on those airlines which they would not have obtained under normal market conditions.
As is apparent from the case-law referred to in paragraphs 109 and 110 above and from point 99 of the Advocate General’s Opinion, the private acquirer test, like the private vendor test of which it is the counterpart, constitutes one of the various tests which give specific expression to the market economy operator principle. In those circumstances, the errors of law identified in paragraphs 117 to 120 above are capable of leading to the judgments under appeal being set aside only if it transpires that those additional grounds referred to by the General Court are also incorrect in law and, as such, are not capable of founding the operative part of those judgments.
In the second place, it should be observed in that respect, first of all, that those grounds are, in essence, expressed in relation to the findings and assessments previously made by the Commission in the contested decision. Consequently, Volotea is wrong to claim that the General Court disregarded the limits imposed on its role as adjudicator of the lawfulness of Commission decisions by stating those same grounds.
Next, it must be pointed out that the private acquirer test, since it constitutes one of the various iterations of the market economy operator principle, must consequently be interpreted and applied in a manner that is consistent with that principle and the evidential requirements underlying its application.
In that regard, it indeed follows from the settled case-law of the Court that where a State or other public body decides to sell or, conversely, to acquire goods or services directly from one or more private undertakings, the holding of a tender procedure organised in accordance with detailed rules ensuring its openness, impartiality and non-discriminatory nature allows for the presumption, in certain conditions, that the contracts or other acts which are concluded to that end following that procedure, and the remuneration that they stipulate, reflect normal market conditions and, in particular, a normal market price or value that rules out the existence of an ‘advantage’ for the purpose of Article 107(1) TFEU (see, to that effect, judgment of 16 July 2015, BVVG,
C‑39/14
,
EU:C:2015:470
, paragraphs
and
and the case-law cited).
However, it is also apparent from that case-law that the holding of such a procedure is not always mandatory for the purposes of such a sale or purchase transaction and, moreover, that there are other methods of ruling out the existence of such an advantage. It is in fact possible to use other methods, such as an independent expert report (judgment of 16 July 2015, BVVG,
C‑39/14
,
EU:C:2015:470
, paragraph
and the case-law cited) or a reliable, thorough and comprehensive valuation of the relevant costs (see, to that effect, judgment of 2 September 2010, Commission v Scott,
C‑290/07 P
,
EU:C:2010:480
, paragraphs
to
) in order to ensure that the transaction thus carried out constitutes a normal market transaction resulting in the setting of a normal market price or value.
A fortiori, the holding of a tender procedure cannot constitute the sole method of ruling out the existence of an ‘advantage’, for the purposes of Article 107(1) TFEU, where the State does not carry out the sale or acquisition of goods or services to or from private undertakings directly, but does so through the intermediary of other private undertakings that are not obliged to make use of such a procedure. Whichever method is used, the question of whether such an advantage must be ruled out or, conversely, found to exist requires, in any event, an assessment of whether or not the contracts or other acts providing for that sale or acquisition reflect normal market conditions, in the manner described in paragraphs 113 and 114 above.
Furthermore, as is apparent from those same paragraphs above, it is the task of the Commission to carry out that assessment and prove the existence of an advantage, for the purposes of Article 107(1) TFEU, under the conditions referred to in paragraphs 111 and 112 above. In the present case, that advantage, assuming it to be established, can correspond only to the difference between the remuneration which the beneficiaries at issue could have expected to achieve under normal market conditions and that actually paid to them by the airport operators.
In the present case, the General Court disregarded those various substantive and evidential requirements.
First, that court, in essence, both in its analysis of the requirements flowing from Article 107(1) TFEU and in its legal classification of the facts in the light of those requirements, confined itself to observing that the contracts at issue in the present case had not been concluded by the private entities which are parties to them following a tender procedure, as is apparent from paragraphs 136, 137 and 141 of the judgment in Case T‑607/17 and from paragraphs 203, 204 and 208 of the judgment in Case T‑8/18 and then considering, in general terms, that implementing that procedure ‘could have proved the existence of market conditions and, consequently, the absence of any advantage within the meaning of Article 107(1) TFEU’, and that Volotea and easyJet had ‘failed’ to show in the present case that the operators of Cagliari-Elmas and Olbia airports had made use of an ‘equivalent’ procedure, as is apparent from paragraphs 140, 142 and 143 of the judgment in Case T‑607/17 and from paragraphs 207, 209 and 210 of the judgment in Case T‑8/18.
In so doing, that court attributed an unjustified level of importance to the circumstance, for private undertakings that are not subject to the obligation to organise a tender procedure and which intend to conclude such contracts, of having recourse beforehand to such a procedure or one that is equivalent, failing which they face the risk, where such a procedure is not carried out, of those contracts being automatically classified as an ‘advantage’, for the purposes of Article 107(1) TFEU, if one of those private undertakings finances its contractual obligations by means of public funds. In fact, neither the need to have recourse to such a tender procedure or an equivalent procedure, nor the automatic consequence that would result from a failure to carry out such a procedure, follows from that provision or from the case-law of the Court, which, on the contrary, require an overall, concrete assessment on a case-by-case basis, as observed in paragraphs 113, 114 and 128 above, and which, moreover, oblige the Commission to prove the existence of an advantage, not the undertakings concerned to show the absence of one (see, to that effect, judgment of 10 December 2020, Comune di Milano v Commission,
C‑160/19 P
,
EU:C:2020:1012
, paragraph
).
Second, the General Court, in paragraph 139 of the judgment in Case T‑607/17 and paragraph 206 of the judgment in Case T‑8/18 merely expressed ‘doubt’ that the marketing services covered by the contracts concluded between the airport operators and the airlines met ‘genuine needs’ on the part of the Autonomous Region. However, as Volotea correctly argues, that assessment did not permit it to find the existence of an advantage, for the purpose of Article 107(1) TFEU.
At the same time, the General Court did not seek in the judgments under appeal to review whether the Commission had fulfilled its obligation, in the decision at issue, to determine whether the contracts concluded between the airport operators and the airlines constituted normal market transactions. On the contrary, it denied any relevance to that issue while setting out general assessments in that respect, as is apparent from paragraphs 118, 125 and 143 of the judgment in Case T‑607/17 and paragraphs 176, 191 and 210 of the judgment in Case T‑8/18. However, as easyJet rightly argues, an examination of that question was required, in the light of the case-law referred to in paragraphs 113, 114 and 128 above.
Consequently, the General Court erred in law by finding that the airlines that had concluded contracts for the provision of air transport, marketing and advertising services with the operators of Cagliari-Elmas and Olbia airports had to be regarded as having benefited from an ‘advantage’, for the purposes of Article 107(1) TFEU, on the ground that the remuneration paid to them under those contracts did not constitute consideration for services that met genuine needs on the part of the Autonomous Region and because those contracts had in addition been concluded by the airport operators at issue without the implementation of a tender procedure or an equivalent procedure beforehand.
Consequently, the General Court also erred in law by holding, in paragraph 150 of the judgment in Case T‑607/17 and paragraph 218 of the judgment in Case T‑8/18, that the Commission had been entitled to conclude that the financing which the Autonomous Region, acting through those airport operators, had granted to Volotea and easyJet in return for the transport, marketing and advertising services supplied by them, had conferred an advantage on them which they would not have obtained under normal market conditions.
It follows that the first complaint of the first ground of appeal relied on in Case C‑331/20 P is well founded, as are the four grounds of appeal raised in Case C‑343/20 P, in so far as they concern the interpretation, applicability and application of the market economy operator principle in the present case.
Since the classification of a particular measure as ‘State aid’ requires proving, among other cumulative conditions, that that measure conferred an advantage on one or more undertakings, as observed in paragraphs 102 and 103 above, and since the grounds of appeal referred to in the preceding paragraph should be upheld, the judgment in Case T‑607/17 must be set aside, without it being necessary to examine the other complaints and grounds of appeal put forward by Volotea in support of its appeal in Case C‑331/20 P, as must the judgment in Case T‑8/18 in that it dismissed as unfounded the action brought by easyJet.
The actions at first instance
Pursuant to the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the Court may itself, where the state of the proceedings so permits, give final judgment in the matter.
In the present case, the Court of Justice considers that final judgment should be given in these two sets of proceedings, which so permit since they have been the subject of an exchange of arguments before the General Court and do not call for the adoption of any additional measure of organisation of procedure or investigation of the case, having regard to the issues which must be resolved in order to conclude them.
As stated in paragraphs 35 to 40 above, Volotea raised five pleas in law in support of its action before the General Court. For its part, easyJet put forward six pleas in support of its action.
It is appropriate, in the first place, to examine together the first and fifth pleas raised by Volotea, which allege, respectively, infringement of Article 107(1) TFEU and a failure to state reasons and contradictory reasoning, and the second plea relied on by easyJet, alleging infringement of that same provision.
Since those various pleas concern the part of the decision at issue in which the Commission found the existence of an advantage, it should be stated, as a preliminary point, that the reasoning given by Commission in that decision as regards that advantage may be summarised as follows.
As a first step, it considered, in recitals 364 to 377 of that decision, that the measures at issue had to be categorised as ‘subsidies’ to the extent that they foresaw the ‘provision’ of ‘funding’ or ‘payments’ by the Autonomous Region, acting ‘through’ airport operators, to airlines ‘in exchange for marketing services’ and an ‘increase in air traffic’ in the form of the opening of new routes and an expansion of existing routes and that those measures thereby relieved those airlines of some of the costs which they would normally have to incur in order to develop and promote their business. In that context, the Commission observed, inter alia, that it was envisaged that the airport operators concerned would conclude ‘agreements’ with those airlines that stipulated, in ‘exchange’ for ‘financial compensation’, ‘targets in terms of traffic’ and ‘expanding air transport operations’, accompanied by ‘penalties’.
As a second step, the Commission addressed the question in recitals 378 and 380 to 388 of the decision at issue of whether the measures at issue ‘comply with the [market economy operator principle]’.
In that regard, first, the Commission found, in recitals 380 to 386 of the decision at issue, that the Autonomous Region ‘[had] not behave[d] vis-à-vis airlines as a market economy operator’. On that point, having stated that the Italian Republic had not relied on the market economy operator principle during the administrative procedure, it established, first of all, that that principle was not applicable given the public policy objectives pursued by the Autonomous Region, the fact that that region controlled only one of the various airport operators concerned and because the measures at issue resulted from a scheme established by a public authority rather than from an individual agreement between an airport operator and an airline. Next, the Commission observed, in essence, that if that principle had been applicable, it would have entailed determining, on the basis of a profitability analysis or a benchmarking exercise, whether the Autonomous Region had acted like a private operator guided by the prospect of profitability, as would have been the case as regards contracts concluded by an airport operator. It then added that such an analysis or exercise was not ‘relevant in the present case’. Lastly, it found that, in any event, the Italian Republic had not submitted any business plan, profitability analysis or other evidence ‘showing clearly’ the existence of market economy operator behaviour.
Second, the Commission stated, in recital 386 of the decision at issue, that no tender procedure had been put in place in order to select the airlines, while the airport operators only ‘published notices’ and ‘chose the best offer’. It added that the use of such a procedure, however, could ‘not have ruled out the existence of an advantage’ in the present case, since the measures at issue had been conceived to ‘disburse public funds to airlines’, while those funds did not correspond ‘to remuneration for products or services fulfilling genuine needs of the [Autonomous] Region’.
Third, the Commission took the view, in recital 387 of the decision at issue, that ‘under these circumstances, there is also no scope for assessing the individual financial relationship between the airports and the airlines’ in order to determine whether they complied with the market economy operator principle, and that ‘it is clear that the airport operators were not acting as market economy operators when entering into the various contracts with the airlines’, but that they were ‘implementing an aid scheme devised by the [Autonomous] Region to increase air transport’.
Arguments of the parties
In its second plea, easyJet submits, inter alia, that the Commission, first, erred in law by finding the existence of ‘subsidies’, even before it had examined the measures at issue and the contracts concluded by the airport operators with the airlines to perform them in the light of the market economy operator principle. Second, it argues that the Commission wrongly refrained from carrying out that examination in the light of the aforementioned principle by relying on the ‘public policy objectives’ pursued by the Autonomous Region; the fact that the measures at issue and the contracts for their implementation purportedly arose from a ‘scheme’ which did not call for further implementing measures and defined its beneficiaries in a general and abstract manner; the ‘private’ character of some of the airport operators concerned; and the role of ‘intermediary’ played by those operators. Third, it alleges that the Commission committed errors of law and manifest errors of assessment by failing to analyse correctly and with detailed arguments the profitability of the measures at issue with regard to the various mechanisms established by those measures, by attaching undue importance to the absence of a tender procedure and by disputing the Autonomous Region’s genuine need for air transport services. Fourth, it submits that the Commission erred in failing to determine whether the contracts concluded between the airport operators and the airlines could be considered as the conduct of economic operators acting under normal market conditions, having regard to the commercial and economic interest of the services provided under those contracts, the price paid in return for them, and the other legal and practical arrangements for the conclusion and performance of those contracts. In that context, easyJet refers, inter alia, to the plans of activities which had to be prepared by the airport operators, to the profitability requirements which were to direct both those plans of activities and the contracts concluded with the airlines, and to the way in which those requirements were put into effect in practice by Geasar and Sogaer in relation to easyJet.
For its part, Volotea submits, inter alia, in its first and fifth pleas, that the Commission misinterpreted and misapplied the market economy operator principle, that the Commission did not discharge its burden of proof in that it failed to prove the existence of an advantage in the light of that principle, and that its reasoning devoted to those questions in the contested decision was inadequate. In that context, Volotea argues, in particular, that Geasar and Sogaer, in concluding contracts with airlines, including itself, after publishing calls for expressions of interest and accepting the most attractive offers, behaved like market economy operators, first, by seeking to acquire services capable of leading to an increase in traffic and in the attractiveness of their respective airports, then by verifying beforehand the profitability prospects of those services and, lastly, by providing, in return, remuneration to their co-contractors at a fair price. Volotea also submits that the Commission, instead of carrying out a rigorous analysis of that situation in the light of the market economy operator principle, in essence merely juxtaposed a series of confused legal and factual assertions, without relevance or substantiation, which were not such as to allow it to find that an advantage existed.
Findings of the Court
First of all, it follows from the case-law cited in paragraphs 107 to 110 above that the onus was on the Commission, in order to determine whether the measures at issue and the contracts by which they were put into effect by Geasar and Sogaer in respect of easyJet and Volotea constituted advantages for those undertakings for the purposes of Article 107(1) TFEU, to examine those measures and contracts in the light of the market economy operator principle. Furthermore, it follows from the case-law cited in paragraphs 105, 106, 117 and 118 above that the public policy objectives pursued by the Autonomous Region and the fact of the airport operators at issue being private did not prevent that principle being applied.
Next, the application of the market economy operator principle in the present case required the Commission to examine, in accordance with the detailed rules referred to in paragraphs 111 to 114 and 125 to 129 above, whether the Autonomous Region, as a public entity having introduced the measures at issue, and the airport operators, which the Commission describes as ‘intermediaries’, as parties to the contracts concluded with the airlines, could be regarded as having acted like private acquirers of goods or services in a comparable situation by, respectively, envisaging the conclusion of contracts for the provision of air transport services and by entering into such contracts.
Lastly, as is apparent from those same paragraphs of the present judgment, that examination entailed assessing, in an overall and concrete manner, whether those entities had sought, each in its own capacity, to acquire the services concerned under normal market conditions, having regard, in particular, to the rationality of such a transaction, its foreseeable prospects for profitability, the commercial and economic interest of the services to be delivered to that end, the price to be paid in return for them, and the legal and practical arrangements by which the contracts stipulating the provision of those services and the payment of that price had been concluded.
However, as is apparent from the recitals of the decision at issue summarised in paragraphs 145 to 148 above, the Commission, in the first place, clearly rejected – on grounds based incorrectly on the public policy objectives pursued by the Autonomous Region, the private character of the airport operators through which the region implemented the measures at issue, and the form that those measures took – both ‘the applicability’ of the market economy operator principle and the ‘relevance’ and ‘possibility’ of applying that principle to the ‘relationship’ between the Autonomous Region and the airlines and the ‘individual financial relationship’ between those airlines and the airport operators, in particular for the purpose of assessing the rationality and the expected profitability of the contracts concluded for putting those measures into effect.
In the second place, while it is true that the Commission, despite that clear and repeated stance, made a number of assessments in recitals 382 and 384 of the decision at issue which might be understood as an initial step in applying the market economy operator principle, it should be stated, first, that those assessments relate only to the conduct of the Autonomous Region itself, while the conduct of the airport operators, by contrast, was not at any time examined in substance. Second, those assessments are evidently focused on whether the Autonomous Region behaved like a private investor seeking to obtain ‘dividends’, ‘capital gains’ or ‘financial returns’ and not on whether it acted as a private acquirer of goods or services would have done in a comparable situation. Third, the Commission, which, under the conditions set out in paragraphs 111 and 112 above, has the burden of proving the existence of an advantage, in essence merely postulates in peremptory terms, in those same considerations, that the Autonomous Region ‘could not expect any return’ or other benefit that could be taken into account in an analysis under the market economy operator principle. It goes on to criticise the Italian Republic for failing to ‘identify any profitability element’ or, ‘in any event’, for not providing information ‘showing clearly’ that the Autonomous Region had behaved like a market economy operator. Fourth, the Commission did not at any point carry out a detailed examination of the information actually available to it, as easyJet and Volotea also rightly submit.
However, it is clear from the legislative and regulatory provisions at issue in the present case and from the detailed rules for their implementation, as set out in the decision at issue (recitals 44 to 46, 71 to 75 and 79 to 84) and summarised in paragraphs 5 to 25 above, that the contracts concluded between the airport operators and the airlines constitute the concrete, bilateral expression of plans of activities that were subject to the prior approval and subsequent scrutiny of the Autonomous Region, which had to include – and did indeed include according to the Commission – information, concerning, inter alia, the ‘initiatives [that] the airport operators consider[ed] feasible’ and the ‘economic and financial forecasts [supporting the] prospects for the profitability’ of the services to be provided, which the Commission was required to take a view on.
Moreover, it does not appear from the decision at issue that the Commission made use of the powers that enable it to obtain the additional information that it deemed to be necessary or useful, in particular its power to issue an injunction to the Italian Republic to provide it with that information, pursuant to Article 12(3) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU] (
OJ 2015 L 248, p. 9
), a factor which must be taken into consideration, in accordance with the case-law cited in paragraph 112 above.
Consequently, the Commission infringed Article 107(1) TFEU by failing to apply the market economy operator principle in the present case and by accepting the existence of an advantage on the basis of legal and factual considerations that are not capable of justifying such a finding.
For all the foregoing reasons, the first and fifth pleas submitted by Volotea and the second plea raised by easyJet are well founded.
Since proof of the existence of an advantage, for the purpose of Article 107(1) TFEU, is one of the cumulative conditions that are necessary for a particular measure to be classified as ‘State aid’ within the meaning of that provision, as observed in paragraphs 102, 103 and 138 above, and since the pleas referred to in the preceding paragraph of this judgment must be upheld, it is necessary to uphold the actions brought by Volotea and easyJet and, consequently, to annul the contested decision in so far as it concerns those two airlines, in accordance with the forms of order which each of them sought at first instance, as set out in paragraphs 35 and 38 above, without there being any need to examine the other pleas in law put forward in support of those actions.
Costs
Under Article 184(2) of the Rules of Procedure, where an appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to costs.
Under Article 138(1) of those rules, which applies to the procedure on appeal by virtue of Article 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.
In the present case, since the Commission has been unsuccessful in Joined Cases C‑331/20 P and C‑343/20 P and in Cases T‑607/17 and T‑8/18, it must be ordered to pay the costs in those four cases, in accordance with the forms of order sought by Volotea and easyJet.

On those grounds, the Court (Second Chamber) hereby:

1.
Sets aside the judgment of the General Court of the European Union of 13 May 2020, Volotea v Commission (
T‑607/17
,
EU:T:2020:180
);

2.
Sets aside the judgment of the General Court of the European Union of 13 May 2020, easyJet Airline v Commission (
T‑8/18
,
EU:T:2020:182
), in so far as that court dismissed the action for annulment of easyJet Airline Co. Ltd as unfounded;

3.
Annuls European Commission Decision (EU) 2017/1861 of 29 July 2016 on State aid SA33983 (2013/C) (ex 2012/NN) (ex 2011/N) – Italy – Compensation to Sardinian airports for public service obligations (SGEI), in so far as it concerns, first, Volotea SA, and, second, easyJet Airline Co. Ltd;

4.
Orders the European Commission to pay the costs related to the proceedings at first instance and to the proceedings on appeal.

Prechal
Arastey Sahún
Biltgen
Wahl
Passer
Delivered in open court in Luxembourg on 17 November 2022.
A. Calot Escobar
Registrar
A. Prechal
President of the Chamber
(
*1
)	Language of the case: English.