CELEX: 62009TJ0511
State aid
Restructuring aid granted by Austria in favour of the Austrian Airlines group
Decision declaring the aid compatible with the common market, subject to certain conditions
Privatisation of the Austrian Airlines group
Determination of the beneficiary of the aid
Guidelines on State aid for rescuing and restructuring firms in difficulty

Background to the dispute
The Austrian Airlines Group (‘Austrian Airlines’) is made up of three undertakings: Austrian Airlines Österreichische Luftverkehrs AG, a network carrier airline founded in 1957; Tiroler Luftfahrt GesmbH, a regional subsidiary founded in 1978; and Lauda Air Luftfahrt GmbH, a charter company founded in 1979. Austrian Airlines is an air carrier with its headquarters in Vienna (Austria) and operates from hubs at Vienna International Airport and Innsbruck Airport (Austria). Austrian Airlines is a member of the Star Alliance. The Republic of Austria held 41.56% of Austrian Airlines’ shares through the public holding company Österreichische Industrieholding AG (‘ÖIAG’) and in that capacity was Austrian Airlines’ largest shareholder.
The applicant, Niki Luftfahrt GmbH, is a company governed by Austrian law which operates an airline known as ‘FlyNiki’ or ‘Niki’. It operates from Vienna, Linz (Austria), Salzburg (Austria), Graz (Austria) and Innsbruck, providing, in particular, flights to the whole of Europe and North Africa. At the time of bringing the action the applicant was held as to 76% by the Privatstiftung Lauda (Lauda private foundation) and as to 24% by the second largest German airline, Air Berlin.
Austrian Airlines had been in serious financial difficulties for several years. In view of those difficulties the Federal Austrian Government issued a privatisation mandate on 12 August 2008 authorising ÖIAG to sell its entire shareholding in Austrian Airlines. On 29 October 2008, that mandate was extended until 31 December 2008.
On 13 August 2008, ÖIAG published announcements in the Austrian and international press inviting potential investors to express their interest in acquiring its shareholding in Austrian Airlines. Bidders had until 24 August 2008 to express their interest. A total of 12 investors did so.
On 28 August 2008, the investors were notified that an acquisition concept should be submitted by 12 September 2008. The acquisition concept had to include information on the bidder, a strategic concept for the future of Austrian Airlines, a proposal for the transaction structure, information on the planned financing and certain additional information relating to the subject-matter of the contract (warranties, guarantees). Only three acquisition concepts were submitted, by Air France-KLM, Deutsche Lufthansa AG (‘Lufthansa’) and the Russian carrier S7, respectively.
On 16 September 2008, the three remaining undertakings which had submitted acquisition concepts were requested to submit their final offers without a purchase price by 21 October 2008 and their final offers with the purchase price by 24 October 2008.
On 21 October 2008, only Lufthansa submitted an offer together with a contract and a strategic concept without a purchase price, as requested. On 24 October 2008, Lufthansa submitted a binding offer indicating the price it was prepared to pay for ÖIAG’s shareholding in Austrian Airlines.
The purchase offer was formulated as follows:
—
Lufthansa was to pay ÖIAG a purchase price of EUR 366 268.75;
—
ÖIAG was to receive a debtor warrant which might lead to entitlement to an additional payment of up to EUR 162 million;
—
through a special purpose vehicle, ÖIAG was to pay an amount of EUR 500 million, which Lufthansa was to use for a capital increase in Austrian Airlines.
As regards the debtor warrant, it was provided that, three years after closure or no later than after the presentation of the financial reports for the period ending 31 December 2011, ÖIAG would receive an additional amount of up to EUR 162 million.
The shares in Austrian Airlines held by ÖIAG were to be acquired by Österreichische Luftverkehrs-Holding-GmbH, held, respectively, as to 49.8% by Österreichische Luftverkehrs-Beteiligungs-GmbH, which was wholly owned by Lufthansa, and as to 50.2% by Österreichische Luftverkehrs-Privatstiftung, a foundation governed by Austrian law whose founder is Österreichische Luftverkehrs-Beteiligungs.
In parallel with that transaction, Österreichische Luftverkehrs-Holding GmbH was to acquire all the other shares in Austrian Airlines through a repurchase offer or a ‘squeeze out’ in order to ensure that it owned all the shares in Austrian Airlines.
The transaction was approved by Lufthansa’s Supervisory Board on 3 December 2008 and by ÖIAG’s Supervisory Board on 5 December 2008.
On 21 December 2008, the Republic of Austria notified the Commission of the European Communities of the measures relating to the proposal for the sale of its shareholding in Austrian Airlines.
At the same time, the Republic of Austria notified the Commission on 19 December 2008 of its decision to grant Austrian Airlines rescue aid in the form of a 100% guarantee in order to enable it to obtain financing in the form of a loan of EUR 200 million.
By decision of 19 January 2009 on State aid NN 72/08, Austrian Airlines — Rescue aid, the Commission authorised that rescue aid in the form of a guarantee, which was to cease when the Commission arrived at a final decision on the aid notified in the context of the sales procedure or the restructuring plan submitted by the Austrian authorities.
By letter of 11 February 2009, the Commission notified the Republic of Austria that it had decided to initiate the formal State aid examination procedure provided for in Article 88(2) EC with respect to the measures submitted by the Republic of Austria with a view to disposing of its shareholding in Austrian Airlines.
On 11 March 2009, the Republic of Austria presented its comments on the opening of the formal examination procedure to the Commission.
On the same date the decision to initiate the formal examination procedure was published in the
Official Journal of the European Union
and interested parties were invited to submit their comments (
OJ 2009 C 57, p. 8
).
In that decision, the Commission stated first of all that it must determine if the price paid by Lufthansa for ÖIAG’s shareholding in Austrian Airlines corresponded to the market price. In that regard, the Commission expressed its doubts as to whether the sale was open, transparent and unconditional and as to the value of the debtor warrant. The Commission indicated that if the amount paid for Austrian Airlines did not correspond to the market price, the difference between the amount paid and the market price would have to be regarded as State aid.
The Commission then considered that it must examine the Republic of Austria’s assertion that the price paid by Lufthansa did not constitute State aid because any alternative scenario for ÖIAG would have entailed higher costs.
Last, as the Republic of Austria had submitted a restructuring plan in case the Commission considered that the notified measure constituted State aid, the Commission stated that it must ascertain whether that plan was compatible with its Communication of 1 October 2004 — Community guidelines on State aid for rescuing and restructuring firms in difficulty (
OJ 2004 C 244, p. 2
) (‘the 2004 Guidelines’) and with its Communication of 10 December 1994 on the application of Articles [87 EC] and [88 EC] and Article 61 of the EEA Agreement to State aids in the aviation sector (
OJ 1994 C 350, p. 5
) (‘the 1994 aviation sector Guidelines’).
The Commission received comments from interested parties, including the applicant’s comments, and forwarded them to the Republic of Austria on 15 April 2009.
The Republic of Austria sent the Commission its observations on the comments of the interested parties on 8 May 2009.
On the same date the Commission was notified of a proposed concentration whereby Lufthansa was to acquire exclusive control of Austrian Airlines.
At the request of the Republic of Austria, meetings took place on 7 and 18 May 2009 concerning the privatisation of Austrian Airlines. Following those meetings, addition information requested by the Commission was communicated on 22 May and 18 June 2009.
On 28 August 2009, the Commission adopted Decision 2010/137/EC on State aid C 6/2009 (ex N 663/08) — Austria Austrian Airlines — Restructuring plan (
OJ 2010 L 59, p. 1
), declaring the restructuring aid granted by the Republic of Austria to Austrian Airlines compatible with the common market, subject to compliance with certain conditions (‘the contested decision’).
After inviting the Republic of Austria to inform it, in accordance with Article 25 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88] of the EC Treaty (
OJ 1999 L 83, p. 1
) on the Functioning of the European Union, in the version amended by Council Regulation (EC) No 1791/2006 of 20 November 2006 adapting certain Regulations and Decisions in the fields of free movement of goods, freedom of movement of persons, company law, competition policy, agriculture (including veterinary and phytosanitary legislation), transport policy, taxation, statistics, energy, environment, cooperation in the fields of justice and home affairs, customs union, external relations, common foreign and security policy and institutions, by reason of the accession of Bulgaria and Romania (
OJ 2006 L 363, p. 1
), the information which it considered to be covered by the obligation of professional secrecy, the Commission, in accordance with Article 26(3) of that regulation, published a non-confidential version of the contested decision in the
Official Journal of the European Union
on 9 March 2010.
On 28 August 2009, the Commission also adopted Decision C(2009) 6690 final (Case No COMP/M.5440 — Lufthansa/Austrian Airlines), declaring compatible with the common market and the EEA Agreement, subject to compliance with the commitments proposed, the concentration whereby Lufthansa was to acquire exclusive control of the Austrian group, a summary of which was published in the
Official Journal of the European Union
(
OJ 2010 C 16, p. 11
; ‘the decision authorising the concentration’).
In the contested decision, the Commission considered that the purchase price paid by Lufthansa to ÖIAG for its shares in Austrian Airlines corresponded to a negative price, in that it represented the difference between, on the one hand, the amount of the subsidy paid to Austrian Airlines and, on the other, the amount of the debtor warrant and the amount paid for the acquisition of ÖIAG’s shares. After examining the value of the shares held by ÖIAG in Austrian Airlines, the Commission concluded that the negative price offered by Lufthansa corresponded to the market price and could not therefore be regarded as aid in favour of Lufthansa.
The Commission observed, however, that when an undertaking is sold by a State at a negative price, the fact that that price corresponds to the market price is not a sufficient criterion to establish that the State acted as an investor operating in a market economy and that no State aid was granted. Such an investor must compare the negative market price with the cost to him of other options. In that regard, the Commission considered that, in this instance, the insolvency of Austrian Airlines, the cost of which would have been nil for the State, would have represented a more advantageous option for the State than the sale of its shareholding in Austrian Airlines for a negative price. The Commission therefore considered that the total amount of the negative price must be regarded as public resources granted to Austrian Airlines and that the grant of those resources, imputable to the State, to an undertaking which was in competition with other Community air carriers adversely affected intra-Community trade and therefore constituted State aid within the meaning of Article 87(1) EC.
After examining the aid in question, the Commission considered that, subject to compliance with certain conditions and provided that the restructuring plan notified to the Commission was implemented in full, it constituted aid compatible with the common market within the meaning of Article 87(3)(c) EC.
The operative part of the contested decision reads as follows:
‘Article 1
Subject to the conditions set out in Article 2, the restructuring aid granted by Austria in favour of Austrian Airlines is deemed compatible with the common market by virtue of Article 87(3)(c) [EC], provided that the restructuring plan notified to the Commission is implemented in full.
Article 2
1.   Austria shall take the necessary measures to ensure that Austrian Airlines reduces its overall capacity in terms of available seat kilometres (ASK) by 15% of its January 2010 level by the end of 2008. Thereafter, Austrian Airlines’ capacity growth shall be capped at the average of the growth rate observed for airlines belonging to the Association of European Airlines. This cap shall remain in force until the end of 2015 or until Austrian Airlines reaches EBIT break-even, whichever comes first.
2.   Austria shall take the necessary measures to ensure that Austrian Airlines reduces its shareholding in Schedule Coordination Austria GmbH to 25% by 30 September 2009 and that neither Flughafen Wien AG nor any other party controlled by Austrian Airlines or Flughafen Wien AG has a majority in Schedule Coordination Austria after the restructuring process.
3.   Austria shall take the necessary measures to ensure compliance with the conditions set out in the merger decision in Case COMP/M.5440 — Lufthansa/Austrian Airlines.
4.   Austria shall terminate bilateral aviation agreements which do not contain the Community designation clause or renegotiate them in accordance with Regulation (EC) No 847/2004. Austria shall inform the Commission of measures taken to ensure the conformity of such agreements with Community law regarding the recognition of the Community designation.
5.   Austria shall submit a report to the Commission by 31 December 2009 on the progress and management of the restructuring plan and on the measures taken to reduce Austrian Airlines’ shareholding in Schedule Coordination Austrian GmbH. By 31 April 2010, Austria shall also indicate the steps taken to implement Article 2(4). Every year until 2015, Austria shall submit annual reports to the Commission on the implementation of the restructuring plan and the capacity growth rates.
Article 3
This Decision is addressed to the Republic of Austria.’
Procedure
By application lodged at the Court Registry on 21 December 2009, the applicant brought the present action under the fourth paragraph of Article 263 TFEU.
By document lodged at the Court Registry on 23 April 2010, the Republic of Austria applied for leave to intervene in the present case in support of the form of order sought by the Commission. By order of 15 June 2010, the President of the Sixth Chamber of the Court granted the Republic of Austria leave to intervene.
By documents lodged at the Court Registry on 27 April 2010, Lufthansa and Austrian Airlines applied for leave to intervene in support of the form of order sought by the Commission.
By document lodged at the Court Registry on 7 May 2010, ÖIAG applied for leave to intervene in support of the form of order sought by the Commission.
By document lodged at the Court Registry on 30 August 2010, the Republic of Austria submitted its statement in intervention.
Following a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Seventh Chamber, to which the present case was accordingly assigned on 27 September 2010.
By document lodged at the Court Registry on 18 October 2010, the applicant submitted its observations on the statement in intervention of the Republic of Austria.
By documents lodged at the Court Registry on 11 November 2010, the Commission and the Republic of Austria submitted their observations on the requests for measures of organisation of procedure and on the request for measures of inquiry submitted by the applicant in its observations on the statement in intervention of the Republic of Austria.
By order of 29 November 2010 the President of the Seventh Chamber of the Court granted Lufthansa, Austrian Airlines and ÖIAG leave to intervene.
By documents lodged at the Court Registry on 14 February 2011, Lufthansa, Austrian Airlines and ÖIAG submitted their statements in intervention.
By document lodged at the Court Registry on 13 May 2011, the applicant submitted its observations on the statements in intervention of Lufthansa, Austrian Airlines and ÖIAG.
Following a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the First Chamber, to which the present case was therefore assigned on 16 May 2012.
By order of 10 July 2012 in relation to a measure of inquiry concerning the production of documents, the Court, after noting, first, that the Commission disputed the admissibility of certain of the applicant’s arguments on the ground that they were based on detailed information not to be found in the non-confidential version of the contested decision published in the
Official Journal of the European Union
; second, that the applicant had annexed the non-confidential version of the contested decision to its application; and, third, that the information removed from the non-confidential version of the contested decision was necessary for a proper understanding of the decision and, accordingly, also necessary to enable the Court to determine the dispute, ordered the Commission, on the basis of Article 65(b), Article 66(1) and the second subparagraph of Article 67(3) of the Rules of Procedure of the General Court, to produce the full version of the contested decision, as it had been notified to its addressee, the Republic of Austria. It was stated in the order that the full version of the contested decision would not be communicated to the applicant or to the other parties to the proceedings — with the exception of the Republic of Austria, which was already the addressee of the decision — at that stage of the proceedings. The Commission complied with that request on 25 July 2012.
On 11 July 2012, the Court, acting under Article 64 of the Rules of Procedure, invited the applicant to state whether it had had access to the full version of the contested decision, as notified to the Republic of Austria. The applicant answered that question in the affirmative on 26 July 2012.
On 18 February 2013, the Court addressed a number of requests to the parties by way of measures of organisation of procedure provided for in Article 64(3)(b) and (c) of the Rules of Procedure.
First of all, having noted that the detailed information set out in the application which was not in the version of the contested decision published in the
Official Journal of the European Union
was contained in the full version of that decision, and that the applicant had confirmed that it had had cognisance of the full version of the contested decision in order to prepare its action, the Commission invited the Commission to supplement its defence and to comment on all the pleas, complaints and arguments developed in that application on which it had not yet adopted a position on the ground that in doing so it would breach the obligation of professional secrecy referred to in Article 339 TFEU.
Next, the Court asked the Commission to indicate whether, and to what extent, the confidentiality of all the information in the full version of the contested decision could be lifted vis-à-vis the applicant and the other parties to the proceedings for the purposes of the present dispute. In the event that the Commission wished to maintain the confidentiality of all of that information, it was requested to state the reasons for maintaining each allegedly confidential item in order to enable the Court to adopt a position in that regard on the basis of the second subparagraph of Article 67(3) of the Rules of Procedure.
Last, the Court also invited the interveners to express their reasoned views on the confidential nature of the full version of the contested decision.
The Republic of Austria and ÖIAG responded to that measure of organisation of procedure on 14 and 18 March 2013 respectively. The Commission, Austrian Airlines and Lufthansa responded on 19 March 2013.
As the Commission had merely referred in its response of 19 March 2013, in order to justify maintaining the confidentiality of the full version of the contested decision, to the Republic of Austria’s refusal to lift the confidentiality of that decision, the Court requested the Commission on 18 July 2013, on the basis of Article 64(3)(a) and (b) of the Rules of Procedure, to state the reasons that had led it to accept the Republic of Austria’s request for confidentiality for each allegedly confidential item in the full version of the contested decision, specifying the criteria applied in order to decide that the information in question could be covered by professional secrecy, in particular within the meaning of Communication C(2003) 4582 of 1 December 2003 on professional secrecy in State aid decisions (
OJ 2003 C 297, p. 6
). The Commission responded to that measure of organisation of procedure on 19 September 2013.
Following a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Eighth Chamber, to which the present case was therefore assigned on 1 October 2013.
On 14 November 2013, the Court, after examining the arguments of the Commission and the interveners concerning the confidentiality of the information in the full version of the contested decision, decided to refer that decision to the Commission and adopted a new measure of organisation of procedure requesting the Commission to produce a new version of the contested decision, in which it should conceal only the confidential information not mentioned in the applicant’s pleadings, to be served on the other parties to the proceedings.
By letter of 3 December 2013, the Commission refused to comply with that measure of organisation of procedure, on the ground, in particular, that as the Court had sent it the full confidential version of the contested decision and had not challenged the merits of the decision whereby the Commission had deleted certain information in the public non-confidential version of the contested decision, it did not consider that it was required to prepare a new version of the contested decision.
By order of 27 January 2014, the Court directed the Commission to produce a version of the contested decision in which it was to redact only the confidential information not mentioned in the applicant’s pleadings, and decided that that document could be consulted at the Court Registry by the applicant’s representatives and also by the representatives of the Republic of Austria and the representatives of ÖIAG, Lufthansa and Austrian Airlines, after it had been communicated and up to the date of the hearing, with no copies to be made. The Commission complied with that measure of inquiry on 13 February 2014.
On 11 March 2014, the Court, after hearing the parties, decided to hold the hearing in private; the hearing took place on 25 June 2014.
Forms of order sought
The applicant claims that the Court should:
—
annul the contested decision;
—
order the Commission to pay the costs.
The Commission, supported by the Republic of Austria, by ÖIAG, by Lufthansa and by Austrian Airlines, contends that the Court should:
—
dismiss the action as inadmissible, at least in part, and, in the alternative, as unfounded;
—
order the applicant to pay the costs.
Law
1.
Admissibility
The absence of a signature on the original of the application
In the defence, the Commission claimed that, as the application served on it had not been signed, it did not satisfy the requirements of Article 43(1) of the Rules of Procedure and was therefore inadmissible. However, at the hearing on 25 June 2014 the Commission withdrew that plea of inadmissibility, in answer to a question from the Court on the inferences which it drew from the letter from the Court Registry of 14 April 2010 in which the Registry had informed the Commission that the original of the application had indeed been signed by the applicant’s representative.
The applicant’s use of information not in the version of the contested decision published in the
Official Journal of the European Union
but contained in the version of the contested decision notified to the Republic of Austria
Without formally raising a plea of inadmissibility within the meaning of Article 114 of the Rules of Procedure, the Commission maintains that the application is inadmissible in part in that it contains assertions relating to certain information, on the basis of which the Commission incorrectly, in the applicant’s submission, found that the aid in question was compatible with the common market and which did not appear in the version of the contested decision published in the
Official Journal of the European Union
, annexed to the application.
According to the Commission, it is unable to adopt a position on those assertions without being in breach of the obligation of professional secrecy referred to in Article 339 TFEU. That limits the exercise of its rights of defence and, accordingly, means that the application is inadmissible in part on the basis of Article 44(1)(c) of the Rules of Procedure in that it refers to the information in question.
In addition, the Commission claims that the application is also inadmissible in part in that it contains the information in question, on the ground that that information was obtained improperly by the applicant. In the Commission’s submission, not to find that the application was inadmissible in part in that respect would amount to approving the way in which the applicant had access to the information in question and to encouraging such practices. That could undermine the confidence which economic operators have in the protection afforded to the confidential information which they may communicate to the Commission in the context of the procedure for examining State aid and give them an incentive not to provide such information to the Commission in the future, which would impair the effectiveness of the procedures for the examination of State aid as a whole.
As regards, first, the argument whereby the Commission alleges an infringement of Article 44(1)(c) of the Rules of Procedure, it is unconvincing.
It should be borne in mind that, in accordance with consistent case-law, under Article 44(1)(c) of the Rules of Procedure, every application before the Court is to state the subject-matter of the proceedings and a summary of the pleas in law on which the application is based. The information given must be sufficiently clear and precise to enable the defendant to prepare his defence and the Court to exercise its power of review. In order to ensure legal certainty and the sound administration of justice, it is necessary that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the application itself (orders of 28 April 1993 in
De Hoe
v
Commission
, T‑85/92, ECR,
EU:T:1993:39
, paragraph 20, and of 11 July 2005 in
Internationaler Hilfsfonds
v
Commission
, T‑294/04, ECR,
EU:T:2005:280
, paragraph 23).
The Commission has not claimed that there was any lack of clarity or precision in the summary of the pleas in law in the application, but merely that it was impossible to respond to the applicant’s arguments because of a legal obligation. Accordingly, the Commission has not demonstrated the existence of a breach of the formal requirements laid down in Article 44(1)(c) of the Rules of Procedure of such a kind that would render the application inadmissible within the meaning of the case-law cited at paragraph 65 above.
Nor can the Commission’s argument alleging a breach of its rights of defence, which is based on the alleged impossibility of responding to the applicant’s arguments which are based on information not in the public version of the contested decision, succeed.
In fact, a natural or legal person who, in application of the fourth paragraph of Article 263 TFEU, is entitled to challenge an act referred to in the first paragraph of that provision may rely without limit on all the grounds mentioned in the second paragraph of that article.
Consequently, any limitation of the right of such an applicant to rely on the grounds of annulment which it deems appropriate must, in view of the fact that it would also constitute a limitation of the right to an effective remedy enshrined in Article 47 of the Charter of Fundamental Rights of the European Union, be provided for by EU law, within the meaning of Article 52(1) of that Charter and comply with the requirements of the latter provision. Furthermore, subject to the principle of proportionality, such a limitation must be necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.
In that regard, it should be borne in mind that Article 339 TFEU, on which the Commission relies in support of its plea of inadmissibility, provides that the Commission is required not to disclose information of the kind covered by the obligation of professional secrecy, in particular information about undertakings, their business relations or their cost components. That obligation is referred to in Article 24 of Regulation No 659/1999 as regards information acquired through the application of that regulation. According to that provision, the obligation to respect professional secrecy is imposed not only on the Commission but also on the Member States, their officials and other servants, including independent experts appointed by the Commission. Article 25 of Regulation No 659/1999 states that the Commission is to notify decisions taken pursuant to Chapters II to V and VII of that regulation without delay to the Member State concerned and give the latter the opportunity to indicate to the Commission which information it considers to be covered by the obligation of professional secrecy. Furthermore, the Commission set out in Communication C(2003) 4582 (see paragraph 52 above) how it deals with requests by Member States, as addressees of State aid decisions, for parts of such decisions to be considered to be covered by the obligation of professional secrecy and thus not to be disclosed in the published version.
It should be observed that neither Article 339 TFEU nor Article 24 of Regulation No 659/1999 expressly provides that pleas based on elements of the decision forming the subject-matter of the action that were redacted in the published version of that decision, and to which an applicant was able to have access only by obtaining the full confidential version of that decision without being authorised to do so by the Commission, must be rejected as inadmissible.
Even on the assumption that those provisions might be interpreted in that sense, it must be held that in the circumstances of the present case they would not be applicable.
It is apparent from the Commission’s response of 19 September 2013 to a measure of organisation of procedure adopted by the Court that on 31 August 2009 it communicated the contested decision to the Republic of Austria, at the same time inviting it to indicate within 15 working days the information in that decision which in its view was confidential and should not be published. By letter of 18 September 2009, the Republic of Austria requested the Commission to delete certain information in the contested decision because of its confidentiality. In a letter of 29 September 2009 to the Republic of Austria, the Commission informed the Republic of Austria that it was unable to comply in full with its request and sent it a provisional redacted version of the contested decision, requesting it to approve that version within 15 working days. By letter of 2 October 2009, the Republic of Austria essentially agreed with the version of the contested decision sent by the Commission. However, it once again asked that information set out in recitals 61 and 63 to the contested decision be suppressed and provided additional reasons which in its view justified the confidential treatment of that information. After reconsidering the grounds supplied by the Republic of Austria, the Commission suppressed the information concerned in recitals 61 and 63 to the contested decision and communicated that decision (‘the public version of the contested decision’) to the interested third parties, including the applicant, and published it on its website on 13 October 2009. The public version of the contested decision was then published in the
Official Journal of the European Union
on 9 March 2010.
Like the Commission, the Court found that the applicant put forward in the application arguments based on information which, although alleged to be found in the contested decision, was not in the public version of the contested decision annexed to the application. The Court also found that in the public version of the contested decision the recitals to which the applicant referred in order to substantiate its assertions concerning the information in question contained an indication that certain information had been suppressed on the ground that it was confidential.
The information in question referred to in the application relates to the amount of the own contribution assumed exclusively by Austrian Airlines and to the percentage of the restructuring costs which that contribution is supposed to represent, to the amount of operating losses envisaged by Austrian Airlines, to the amount of Lufthansa’s own contribution, to the amount of the joint own contribution of Lufthansa and Austrian Airlines and to the amount of the restructuring costs in the event that the assumption of Austrian Airlines’ operating losses by Lufthansa and Lufthansa’s contribution to the reduction of Austrian Airlines’ debt ratio would not be regarded as a contribution to the restructuring costs.
That information also related to certain measures of the restructuring plan, the optimisation of traffic between certain countries, the percentages of capacity reduction in 2008 and 2009 on Austrian Airlines’ scheduled routes and charter flights, to the number of aircraft that Austrian Airlines would have in 2011 and also to the number and types of aircraft that Austrian Airlines should bring into service, to the method of acquiring those aircraft and to the date envisaged for bringing them into service.
At that stage, not having the full version of the contested decision, the Court was unable to ascertain whether or not the applicant’s allegations as to the content of that decision were genuine.
Those allegations related to information which appeared to be relevant to the determination of the present dispute, in so far as the applicant claimed, in particular, in support of its action that there had been a breach of the rules applicable to State aid, owing to the insufficiency of the contribution of the beneficiary of the aid to the restructuring plan, to the absence of a genuine restructuring plan and to the insufficiency of the compensatory measures designed to remedy the distortion of competition created by the State aid in question.
Furthermore, in responding to the applicant’s arguments based on that information, the Commission might have been led, even implicitly, to invalidate the applicant’s assertions concerning the content of the full version of the contested decision and thus to breach the obligation of professional secrecy referred to in Article 339 TFEU.
Accordingly, in view of the importance of the information in question for the outcome of the dispute, the Court ordered the Commission to produce the full version of the contested decision, making clear that it would not be communicated at that stage of the procedure to the applicant or the interveners, with the exception of the Republic of Austria, in order to ascertain that the information referred to in the application and not appearing in the public version of the contested decision did in fact correspond to the information in the full version of the contested decision. In response to that measure of inquiry, the Commission produced the full version of the contested decision. The Court was then able to establish that the applicant’s assertions relating to the content of the full version of the contested decision were indeed accurate.
At the same time, the Court, by a measure of organisation of procedure, requested the applicant to state whether it had had access to the full version of the contested decision. In response to that question, the applicant stated that its lawyers had had access to that document in order to prepare the action.
In those circumstances, the Court considered that, as regards the information in the application which was not in the public version of the contested decision but was in the full version of the contested decision, the obligation of professional secrecy borne by the Commission had become devoid of purpose so far as the applicant was concerned, since the latter was already aware of the information in question.
Having regard to the nature of the information in question, that obligation was also devoid of purpose so far as the interveners were concerned. In fact, it should be borne in mind that the Republic of Austria was the addressee of the full version of the contested decision and that in that capacity it was therefore aware of the content of that document. As regards the risk of a breach of the obligation of professional secrecy in the case of the other interveners, it should be pointed out that the information in question, which related to the cost of the plan for the restructuring of Austrian Airlines, Austrian Airlines’ and Lufthansa’s contribution to the cost of that restructuring plan, Austrian Airlines’ foreseeable operating losses and the content of the restructuring plan, were in all likelihood known to ÖIAG, Austrian Airlines and Lufthansa. If the Commission had any doubt in that respect, the Court considers that it was for the Commission to request confidential treatment of the application vis-à-vis those interveners, which it did not do.
It was in that context that the Court invited the Commission, by a measure of organisation of procedure, to adopt a position on all the complaints, arguments and pleas on which it had had not yet adopted a position on the ground that it could not do so without infringing Article 339 TFEU, which the Commission did by submitting a supplementary defence on 19 March 2013.
Furthermore, since the full version of the contested decision also contained information which had been suppressed from the public version of the contested decision on the ground of its confidentiality and which did not appear in the application, and since there was uncertainty as to whether the applicant had really had access to the full version of the contested decision in its entirety, in spite of its answer to the Court on that point, the Court asked the Commission whether it was possible to lift confidentiality vis-à-vis all the information in the full version of the contested decision for the purposes of the present dispute. The Court also requested the interveners to express their views on the confidentiality of the full version of the contested decision.
Having examined the arguments put forward by the Commission and the interveners to justify the refusal to lift the confidentiality of the full version of the contested decision, the Court returned that document to the Commission and, by a new measure of organisation of procedure, requested it to produce a version of the contested decision in which it should delete only the confidential information not mentioned in the applicant’s pleadings, for service on the other parties to the proceedings. When the Commission refused to produce that document, the Court adopted the direction order of 27 January 2014, with which the Commission complied on 13 February 2014.
In order to ensure the confidentiality of the information in question vis-à-vis third parties, the Court also decided, after hearing the parties, that the hearing would be held in private.
In that regard, it is important to note that, in answer to a question from the Court at the hearing, the Commission stated that, notwithstanding that the hearing was in private, it maintained that it was still bound by the obligation of professional secrecy and that the application should therefore be dismissed as inadmissible in part in that it did not allow the Commission to exercise its rights of defence in full.
However, the Court considers that, in the light of the considerations set out above, the Commission cannot rely in this instance on a breach of its rights of defence based on its alleged inability to respond to the applicant’s arguments without being in breach of its obligation of professional secrecy.
Accordingly, the Commission’s plea of inadmissibility, based on its inability to respond to the arguments based on information contained solely in the full version of the contested decision, must be rejected.
As regards, second, the Commission’s argument that the application should be dismissed as inadmissible in part, on the ground that it contains information obtained improperly by the applicant, it, too, is unconvincing.
In support of its argument, the Commission merely claims that the fact that the applicant was able to use information obtained improperly in the proceedings before the Court would be such as to undermine the system of control of State aid in the European Union, since it would discourage economic operators from entrusting confidential information to the Commission in the procedure for the examination of State aid.
However, such considerations, on the assumption that they were well founded, are not among the circumstances that would warrant the dismissal as inadmissible of an application brought on the basis of Article 263 TFEU, in accordance with the case-law on Article 44 of the Rules of Procedure, as referred to at paragraph 65 above. Furthermore, in the absence of express provisions on the basis of which pleas based on confidential information in a State aid decision could be rejected as inadmissible, the general considerations invoked by the Commission are irrelevant.
It is true that, as the Commission has suggested, the applicant could have requested it to grant access to the full version of the contested decision according to the procedures provided for in Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (
OJ 2001 L 145, p. 43
), or, as the Republic of Austria and Lufthansa claimed, have challenged in its application the suppression of certain information in the public version of the contested decision on the ground of its alleged confidentiality, and requested the Court to adopt a measure of organisation of procedure with a view to obtaining the full version.
However, it must be emphasised that, unlike the Commission and the Republic of Austria, the applicant is not bound by the obligation of professional secrecy referred to in Article 339 TFEU and Article 24 of Regulation No 659/1999.
Accordingly, in so far as the applicant already had access to the information contained in the full version of the contested decision, it was not required to use one of the procedures referred to at paragraph 94 above.
In fact, the applicant was entitled to confine itself, as it did, to formulating in its application allegations relating to the content of the full version of the contested decision.
In such circumstances, the Court considers that, since the allegations in question related to information essential to the outcome of the dispute, it was required to ascertain the veracity of those allegations by ordering production of the full version of the contested decision.
It follows that the plea of inadmissibility raised by the Commission, alleging use in the application of information contained solely in the full version of the contested decision, must also be rejected.
2.
Substance
In support of the present action, the applicant raises three pleas in law, alleging, first, infringement of the provisions of the FEU Treaty; second, breach of the obligation to state reasons; and, third, misuse of powers.
The Court considers it appropriate to examine first of all the second plea, alleging breach of the obligation to state reasons.
Second plea, alleging breach of the obligation to state reasons
The second plea put forward by the applicant consists of two parts, alleging, first, an error of reasoning as to the sufficiency of the compensatory measures and, second, an error of reasoning as to compliance with the ‘single aid’ principle.
First part of the second plea, alleging an error of reasoning as to the sufficiency of the compensatory measures in the light of the market situations in question
The applicant claims, in essence, that the contested decision contains no reference to the market situation that might be affected by the grant of the aid at issue and also that the contested decision fails to state reasons as to the sufficiency of the compensatory measures which it imposes in the light of the situation of that market.
In that regard, it should be borne in mind that the obligation to state reasons is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the measure at issue. Objections and arguments which aim to challenge the merits of that measure are therefore ineffective in a plea alleging failure to state reasons, or that the reasons stated are insufficient (judgments of 22 March 2001 in
France
v
Commission
, C‑17/99, ECR,
EU:C:2001:178
, paragraphs 35 to 38, and 15 June 2005 in
Corsica Ferries France
v
Commission
, T‑349/03, ECR,
EU:T:2005:221
, paragraphs 52 and 59; see, to that effect, judgment of 6 April 2006 in
Schmitz-Gotha Fahrzeugwerke
v
Commission
, T‑17/03, ECR,
EU:T:2006:109
, paragraphs 70 and 71).
It should also be borne in mind that the scope of the obligation to state reasons depends on the nature of the measure at issue and the context in which it was adopted. The statement of reasons must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure so as to enable the Courts of the European Union to review the legality of the measure and allow the persons concerned to ascertain the reasons for the measure, so that they can defend their rights and ascertain whether or not the decision is well founded. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and all the legal rules governing the matter in question (judgments of 2 April 1998 in
Commission
v
Sytraval and Brink’s France
, C‑367/95 P, ECR,
EU:C:1998:154
, paragraph 63, and 3 March 2010 in
Freistaat Sachsen
v
Commission
, T‑102/07 and T‑120/07, ECR,
EU:T:2010:62
, paragraph 180).
In particular, the Commission is not obliged to adopt a position on all the arguments relied on before it by the parties concerned. It is sufficient if it sets out the facts and the legal considerations having decisive importance in the context of the decision (judgments of 1 July 2008 in
Chronopost and La Poste
v
UFEX and Others
, C‑341/06P and C‑342/06 P, ECR,
EU:C:2008:375
, paragraph 96, and in
Freistaat Sachsen and Others
v
Commission
, cited in paragraph 105 above,
EU:T:2010:62
, paragraph 180).
As regards, in the first place, the alleged failure to indicate the situation of the market that might be affected by the grant of the aid at issue, it should be borne in mind that compliance with the obligation to state reasons imposed by Article 296 TFEU must be assessed by reference to the context in which that decision was adopted. In that regard, it should be observed that the contested decision was adopted on the same day as the decision authorising the concentration between Lufthansa and Austrian Airlines, in which the Commission specifically examined the effects of that concentration on the market. Furthermore, it is apparent from recital 316 to the contested decision that the Commission considered that the market situation required, in this instance, additional capacity reduction by comparison with that already provided for in the restructuring plan. In addition, it is apparent from recitals 322 and 324 to the contested decision that the restructuring plan was based on the assumption that market developments would reverse in 2010, which justified an increase in Austrian Airlines’ capacities limited to the average growth rate observed for European airlines by the end of 2015 or until Austrian Airlines achieved break-even.
In follows that, contrary to the applicant’s contention, the contested decision does not wholly fail to indicate the market situation capable of being affected by the grant of the aid at issue.
As regards, in the second place, the alleged failure to state reasons in the contested decision as regards the sufficiency of the compensatory measures imposed by that decision in the light of the market situation, it is appropriate to refer to the arguments which the applicant puts forward in support of that assertion.
Thus, the applicant claims, both in the application and in the reply, that in accepting the compatibility of the aid at issue, the Commission will allow the strengthening of anti-competitive practices in which Lufthansa and Austrian Airlines have engaged through their joint venture since 2006, that the compensatory measures would not offset the anti-competitive effects that would result from the grant of the aid, that the contested decision does not provide for any compensatory measure concerning the market for routes between Austria and Eastern Europe and also between Austrian and the Middle East on which Austrian Airlines has a dominant position and, last, that the contested decision does not provide for compensatory measures to combat the unfair pricing policy conducted by Lufthansa and Austrian Airlines.
Accordingly, in spite of the title of the present plea, it follows from the terms of the applicant’s arguments, both in the application and in the reply, that those arguments are actually intended to challenge the merits of the Commission’s assessment of the compatibility of the aid at issue with the common market. It is therefore appropriate to examine them in the context of the third part of the first plea, alleging the insufficiency of the restructuring plan and the compensatory measures. However, as stated at paragraph 104 above, such arguments are ineffective in the context of a plea alleging failure to state reasons or insufficiency of the reasons stated.
It follows that the first part of the second plea must be rejected as unfounded.
Second part of the second plea, alleging failure to state reasons as regards compliance with the ‘single aid’ principle
The applicant takes issue with the Commission, in essence, for not having adopted a position in the contested decision on the numerous aids from which Austrian Airlines has benefited in the past and the existence of which was demonstrated by the applicant in its complaint and also for having considered that the aids in question were not contrary to the ‘single aid’ principle.
In that regard, it should be borne in mind, in the first place, that, in accordance with the case-law cited in paragraph 106 above, as regards decisions adopted on the basis of Article 87(3) EC, the Commission is not obliged to adopt a position on all the arguments relied on by the parties concerned and it is sufficient if its sets out the facts and the legal considerations having decisive importance in the context of the decision (judgments in
Chronopost and La Poste
v
UFEX and Others
, cited in paragraph 106 above,
EU:C:2008:375
, paragraph 96, and
Freistaat Sachsen and Others
v
Commission
, cited in paragraph 105 above,
EU:T:2010:62
, paragraph 180).
However, it should also be borne in mind that the principle of non-recurrence is of particular importance in the assessment of the compatibility of restructuring aid with the common market, as is apparent from point 72 of the 2004 Guidelines, which are applicable in the present case.
In fact, it must be stated that the Commission did indeed adopt a position on compliance with that principle in the present case, when it indicated at recital 339 to the contested decision that it had noted that neither Austrian Airlines nor any company in the group had received restructuring aid in the past.
Accordingly, the applicant cannot maintain that the Commission breached the obligation to state reasons by not adopting a detailed position in the contested decision on all the arguments which the applicant put forward in the context of the administrative procedure in order to demonstrate that unlawful aid had been granted to Austrian Airlines in the past.
Furthermore, as regards the complaint that the Commission had been wrong to take the view that the grant of the aid at issue was not contrary to the ‘single aid’ principle, it must be held that that complaint is tantamount to calling the Commission’s substantive assessment into question and that it is therefore ineffective in the context of a plea alleging an error in the reasoning or a failure to state reasons, in accordance with the case-law referred to in paragraph 104 above.
The second part of the second plea and, accordingly, the second plea in its entirety must therefore be rejected as unfounded.
First plea, alleging infringement of the provisions of the EC Treaty
The first plea put forward by the applicant consists of four parts, alleging, first, a manifest error of assessment as to the identity and eligibility of the beneficiary of the aid; second, insufficiency of the own contribution of the beneficiary of the aid to the restructuring plan; third, insufficiency of the restructuring plan and the compensatory measures; and, fourth, infringement of Article 43 EC.
First part of the first plea, alleging a manifest error of assessment as to the identity and eligibility of the beneficiary of the aid
The applicant takes issue with the Commission, in essence, for having made a manifest error of assessment as to the identity of the beneficiary of the aid, which, according to the applicant, is not Austrian Airlines but Lufthansa. That initial error was reflected in the lawfulness of the contested decision, in so far as Lufthansa was not an undertaking in difficulties and was therefore not eligible for the restructuring aid at issue. In addition, the applicant maintains that, even on the assumption that Austrian Airlines was indeed the beneficiary of the aid at issue, it too did not satisfy the conditions in order to benefit from the aid.
As regards, in the first place, the complaint relating to an alleged error on the Commission’s part as to the identity of the beneficiary of the aid at issue, it should be borne in mind that it is settled case-law that the classification of aid, within the meaning of Article 87(1) EC, requires that all the conditions laid down in that provision be satisfied. First, there must be intervention by the State or through State resources. Second, the intervention must be liable to affect trade between Member States. Third, it must confer an advantage on the beneficiary by favouring certain undertakings or the production of certain goods. Fourth, it must distort or threaten to distort competition (see, to that effect, judgments of 24 July 2003 in
Altmark Trans and Regierungspräsidium Magdeburg
, C‑280/00, ECR,
EU:C:2003:415
, paragraphs 74 and 75, and 22 February 2006 in
Le Levant 001 and Others
v
Commission
, T‑34/02, ECR,
EU:T:2006:59
, paragraph 110).
In that regard, it should be borne in mind that, according to settled case-law, the supply of goods or services on favourable terms may constitute State aid within the meaning of Article 87(1) EC (see, to that effect, judgments of 2 February 1988 in
Kwekerij van der Kooy and Others
v
Commission
, 67/85, 68/85 and 70/85, ECR,
EU:C:1988:38
, paragraphs 28 and 29; 20 November 2003 in
GEMO
, C‑126/01, ECR,
EU:C:2003:622
, paragraph 29; and 1 July 2010 in
Italy
v
Commission
, T‑53/08, ECR,
EU:T:2010:267
, paragraph 59).
When applied to the situation of a sale of property by a public authority to a private person, the consequence of that principle is that it must be determined whether, in particular, the sale price for that property is equivalent to the market price in that it corresponds to the price which could have been obtained by the purchaser under normal market conditions (see, to that effect, judgment of 16 September 2004 in
Valmont
v
Commission
, T‑274/01, ECR,
EU:T:2004:266
, paragraph 45 and the case-law cited). From that viewpoint, the Commission must apply the private investor in a market economy test, to determine whether the price paid by the presumed recipient of the aid corresponds to the price which a private operator, operating in normal competitive conditions, would be likely to have fixed (see, to that effect, judgments of 2 September 2010 in
Commission
v
Scott
, C‑290/07 P, ECR,
EU:C:2010:480
, paragraph 68, and 16 December 2010 in
Seydaland Vereinigte Agrarbetriebe
, C‑239/09, ECR,
EU:C:2010:778
, paragraph 34 and the case-law cited). The specific application of that test requires in principle a complex economic assessment (judgment in
Commission
v
Scott
,
EU:C:2010:480
, paragraph 68).
It should also be borne in mind, as regards the nature and scope of the judicial review, that the notion of State aid, as defined in the Treaty, is a legal concept which must be interpreted on the basis of objective factors. For that reason, the Courts of the European Union must in principle, having regard both to the specific features of the case before them and to the technical or complex nature of the Commission’s assessments, carry out a comprehensive review as to whether a measure falls within the scope of Article 87(1) EC (see, to that effect, judgments of 16 May 2000 in
France
v
Ladbroke Racing and Commission
, C‑83/98 P, ECR,
EU:C:2000:248
, paragraph 25, and 22 December 2008 in
British Aggregates
v
Commission
, C‑487/06 P, ECR,
EU:C:2008:757
, paragraph 111). The Courts of the European Union must, in particular, establish not only whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the relevant information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it (see judgment in
Commission
v
Scott
, cited in paragraph 124 above,
EU:C:2010:480
, paragraph 65 and the case-law cited).
However, when conducting such a review, the Courts of the European Union must not substitute their own economic assessment for that of the Commission. The review by the Courts of the European Union of the complex economic assessments made by the Commission is necessarily limited and confined to verifying whether the rules on procedure and on the statement of reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of assessment or misuse of powers (see judgments in
Commission
v
Scott
, cited in paragraph 124 above,
EU:C:2010:480
, paragraph 66 and the case-law cited, and of 17 December 2008 in
Ryanair
v
Commission
, T‑196/04, ECR,
EU:T:2008:585
, paragraph 41).
Furthermore, it must be made clear that the legality of a Commission decision concerning State aid must be assessed in the light of the information available to the Commission when the decision was adopted (judgments of 10 July 1986 in
Belgium
v
Commission
, 234/84, ECR, EU:C:1986:302, paragraph 16; 14 September 2004 in
Spain
v
Commission
, C‑276/02, ECR,
EU:C:2004:521
, paragraph 31; and in
Valmont
v
Commission
, cited in paragraph 124 above,
EU:T:2004:266
, paragraph 38). It follows, in particular, that, since the concept of State aid must be applied to an objective situation assessed on the date on which the Commission takes its decision, it is the assessments carried out on that date that must be taken into account in the conduct of the review (judgment in
Chronopost and La Poste
v
UFEX and Others
, cited in paragraph 106 above,
EU:C:2008:375
, paragraph 144).
It is in the light of those principles that the Court must ascertain whether in this instance the Commission made a manifest error of assessment in considering that the beneficiary of the aid at issue was Austrian Airlines and not Lufthansa.
In the present case, the applicant claims, in essence, that the subsidy of EUR 500 million in question constitutes State aid in favour of Lufthansa. In support of that theory, it maintains that the subsidy corresponds to a price paid by the seller, namely ÖIAG, to the purchaser, namely Lufthansa, in consideration for the assumption of negative assets. That, in the applicant’s submission, is confirmed by the fact that the subsidy was first of all paid to Suriba Beteiligungsverwaltungs GmbH (‘Suriba’), a company wholly controlled by Lufthansa, before being transferred to Austrian Airlines, which ultimately became a wholly-owned subsidiary of Lufthansa. In fact, the transfer of that subsidy represented a less favourable situation for the State than the insolvency of Austrian Airlines.
In that regard, it should be observed that it follows from the purchase offer submitted by Lufthansa for the Republic of Austria’s shareholding in Austrian Airlines that the payment of a public subsidy of EUR 500 million in favour of Austrian Airlines was a condition of that purchase, in the same way as Lufthansa’s payment to ÖIAG of a purchase price of EUR 366 268.75 and the existence of a debtor warrant that might give rise to an additional payment of up to EUR 162 million, so that that subsidy may be analysed as a negative factor incorporated in the selling price accepted by the Republic of Austria by way of consideration for its shareholding in Austrian Airlines.
That analysis of the selling price was adopted by the Commission in the contested decision and has not been formally challenged by the applicant.
It should also be observed that in the contested decision the Commission, after examining the market conditions, found that the price offered by Lufthansa in its purchase offer for the Republic of Austria’s shareholding in Austrian Airlines corresponded to the market price, a finding which the applicant has not challenged in the context of the present action.
According to settled case-law, where an undertaking that has benefited from State aid is bought at the market price, that is to say at the highest price which a private investor acting under normal competitive conditions was ready to pay for that company as it stood, in particular after having enjoyed State aid, the aid element is regarded as having been assessed at the market price and included in the purchase price. In such circumstances, the buyer cannot be regarded as having benefited from an advantage by comparison with other market operators (see, by analogy, judgment of 20 September 2001 in
Banks
, C‑390/98, ECR,
EU:C:2001:456
, paragraph 77).
It follows that the applicant has not shown how the Commission made a manifest error of assessment in considering in the contested decision that Austrian Airlines was the beneficiary of the aid at issue.
That finding cannot be called into question by the applicant’s argument that payment of the public subsidy would not have been necessary if Austrian Airlines had been purchased by another operator, or even if Austrian Airlines had been able to continue to operate independently if an alternative restructuring plan, allegedly kept secret by the Republic of Austria, had been put in place.
In fact, such an argument is tantamount to maintaining that, in accepting a purchase offer including a negative element of an amount of EUR 500 million for its shareholding in Austrian Airlines, the Republic of Austria did not act as a private investor in a market economy.
Yet that is precisely what the Commission found in the contested decision, when it considered that the possibility of the insolvency of Austrian Airlines, the costs of which would have been nil for the State, would have represented a more advantageous option for the State than a sale of Austrian Airlines requiring payment to Austrian Airlines of a public subsidy of EUR 500 million. It was on the basis of that finding that the Commission considered in the contested decision that that public subsidy should be regarded as State aid, within the meaning of Article 87(1) EC, granted by the Republic of Austria to Austrian Airlines.
Nor can that finding be called into question by the applicant’s argument that Austrian Airlines was not the beneficiary of the public subsidy, in so far as payment of that subsidy by ÖIAG to Suriba, a subsidiary of Lufthansa, was not followed by an increase in Austrian Airlines’ share capital. In fact, while it follows from the provisions of the Bundesgesetz über die Übertragung von Bundesbeteiligungen in das Eigentum der ÖIAG (Federal law on the transfer of federal investments held by ÖIAG) of 23 October 2009 (BGB1. I, 87/1998) that the financial support of EUR 500 million must make it possible to increase Austrian Airlines’ capital, it is not specified that that measure must necessarily take the form of an increase in the share capital. As the Commission correctly claims, the objective of that measure is to improve Austrian Airlines’ debt ratio by increasing its own funds. It is clear from the file that Austrian Airlines did indeed benefit from an increase in its own funds through its merger with Suriba.
In the light of the foregoing considerations, the applicant’s argument that Lufthansa ultimately benefited from the subsidy at issue on the ground that it directly or indirectly acquired all the shares in Austrian Airlines must be rejected, since it is not disputed that the public subsidy was part of the negative selling price paid by Lufthansa for Austrian Airlines and since that selling price corresponded to the market price.
In those circumstances, it must be held that the question whether Lufthansa is an eligible undertaking within the meaning of the 2004 Guidelines is irrelevant.
As regards, in the second place, the complaint that the Commission was wrong to consider in the contested decision that Austrian Airlines was an undertaking eligible for the grant of restructuring aid, it must be observed that such a complaint relates to the assessment carried out by the Commission in the context of the application of Article 87(3)(c) EC.
It is appropriate at this point to recall the legal framework relevant to the review of the grant of restructuring aid.
First, under Article 87(3)(c) EC, aid to facilitate the development of certain economic activities or of certain economic areas, where such aid does not adversely affect trading conditions to an extent contrary to the common interest, may be considered to be compatible with the common market.
According to a consistent line of decisions, in the application of Article 87(3)(c) EC, the Commission has a wide discretion the exercise of which involves economic and social assessments which must be made in a Community context (see, to that effect, judgments of 24 February 1987 in
Deufil
v
Commission
, 310/85, ECR,
EU:C:1987:96
, paragraph 18; 29 April 2004 in
Italy
v
Commission
, C‑372/97, ECR,
EU:C:2004:234
, paragraph 83; and in
Corsica Ferries France
v
Commission
, cited in paragraph 104 above,
EU:T:2005:221
, paragraph 137).
Furthermore, the Commission may lay down for itself guidance for the exercise of its discretion by adopting acts such as the Guidelines on undertakings in difficulty, in so far as those acts contain indications as to the direction to be followed by that institution and do not depart from the Treaty rules (see judgment of 30 January 2002 in
Keller and Keller Meccanica
v
Commission
, T‑35/99, ECR,
EU:T:2002:19
, paragraph 77 and the case-law cited).
In that context, it must be observed, as regards the definition of restructuring aid, that it is apparent from points 16 and 17 of the 2004 Guidelines that the Commission considers that such aid is intended to restore the long-term viability of a firm, unlike rescue aid which consists of temporary assistance and is intended for the implementation of immediate measures.
Second, it is settled case-law that judicial review of the manner in which the Commission’s discretion is exercised in the application of Article 87(3)(c) EC is confined to establishing that the rules of procedure and the rules relating to the duty to give reasons have been complied with, and to verifying that the facts relied on are accurate and that there has been no error of law, manifest error of assessment of the facts or misuse of powers (see, to that effect, judgments of 13 February 2003 in
Spain
v
Commission
, C‑409/00, ECR,
EU:C:2003:92
, paragraph 93, and in
Corsica Ferries France
v
Commission
, cited in paragraph 104 above,
EU:T:2005:221
, paragraph 138 and the case-law cited). However, it is not for the Court to substitute its own economic assessment for that of the author of the decision (judgments of 25 June 1998 in
British Airways and Others
v
Commission
, T‑371/94 and T‑394/94, ECR,
EU:T:1998:140
, paragraph 79, and in
Corsica Ferries France
v
Commission
, cited in paragraph 104 above,
EU:T:2005:221
, paragraph 138).
Furthermore, the Court must also verify whether the requirements which the Commission has imposed on itself in the Guidelines have been observed (see, to that effect, judgment in
Keller and Keller Meccanica
v
Commission
, cited in paragraph 145 above,
EU:T:2002:19
, paragraph 77 and the case-law cited).
Conversely, it is not for the Courts of the European Union to take the place of the Commission by carrying out in its stead an examination which it never undertook and speculating as to the conclusions which it would have reached had it done so (judgment of 1 July 2008 in
Deutsche Post
v
Commission
, T‑266/02, ECR,
EU:T:2008:235
, paragraph 95; see, to that effect, judgment in
Valmont
v
Commission
, cited in paragraph 124 above,
EU:T:2004:266
, paragraph 136).
It is in the light of those principles that the Court must examine the complaint that the Commission was wrong to take the view in the contested decision that Austrian Airlines was an undertaking eligible for the grant of restructuring aid in so far as it was on the point of being taken over by Lufthansa and Lufthansa was capable of dealing with Austrian Airlines’ difficulties on its own.
Point 13 of the 2004 Guidelines, which is in the part of the Guidelines in which the Commission defines the concept of a firm in difficulty, provides as follows:
‘A firm belonging to or being taken over by a larger business group is not normally eligible for rescue or restructuring aid, except where it can be demonstrated that the firm’s difficulties are intrinsic and are not the result of an arbitrary allocation of costs within the group, and that the difficulties are too serious to be dealt with by the group itself. …’
It is therefore appropriate to ascertain first of all whether, at the date of the contested decision, Austrian Airlines belonged to a group or could be classified as a firm being taken over by a group, within the meaning of point 13 of 2004 Guidelines, before examining, if necessary, whether Lufthansa was in a position to deal with the difficulties faced by Austrian Airlines.
In that regard, it should be observed that, contrary to the applicant’s contention, ÖIAG’s approval of Lufthansa’s offer to purchase Austrian Airlines, which was given on 5 December 2008, does not mean that Austrian Airlines already belonged to Lufthansa on that date. ÖIAG’s actual transfer to Lufthansa of its shareholding in Austrian Airlines remained conditional on the Commission’s authorisation, which was not given until later, on 28 August 2009, when the decision authorising the concentration was adopted.
In the present case, moreover, the applicant acknowledged at the hearing that on 5 December 2008 the takeover of Austrian Airlines, that is to say the purchase by Lufthansa of ÖIAG’s shareholding in Austrian Airlines, remained subject to payment of the subsidy at issue, while that subsidy was itself subject to authorisation by the Commission.
However, the payment of the subsidy at issue could not be considered in isolation, because it was included in the negative selling price that Lufthansa had offered to pay, which had been accepted by ÖIAG.
Accordingly, payment of the negative price and, accordingly, the transfer to Lufthansa of ownership of ÖIAG’s shareholding in Austrian Airlines, was suspended until payment of the subsidy at issue.
It must therefore be considered that, on the date of adoption of the contested decision, Austrian Airlines did not yet belong to the Lufthansa group.
The question is therefore whether, on that date, Austrian Airlines could be regarded as a firm being taken over by a group, within the meaning of point 13 of the 2004 Guidelines.
In that regard, it should be born in mind that one of the principles laid down in point 13 of the 2004 Guidelines is that an undertaking in difficulty which belongs to a group is prohibited from benefiting from rescue or restructuring aid where its difficulties are not intrinsic and are the result of an arbitrary allocation of costs within the group or where the group has the means to resolve those difficulties on its own. The objective of that prohibition is therefore to prevent a group of undertakings from having the State bear the cost of a plan for the restructuring of one of the undertakings belonging to the group, when that undertaking is in difficulty and the group itself has created those difficulties or has the means to deal with them on its own.
In that context, the purpose of extending the prohibition of the benefit of rescue or restructuring aid to undertakings in difficulties which are being ‘taken over’ by a group is to prevent a group of undertakings from circumventing that prohibition by taking advantage of the fact that an undertaking which it is in the process of buying does not yet formally belong to it at the time of payment of the restructuring aid in favour of the undertaking being purchased.
However, such a situation cannot be assimilated to that of the present case, where payment by the State of the subsidy at issue to Austrian Airlines constitutes, as stated in paragraph 130 above, a negative element forming part of the price paid by Lufthansa to ÖIAG for the acquisition of Austrian Airlines.
Accordingly, it must be held that the Commission did not make a manifest error of assessment in considering that the conditions for the application of point 13 of the 2004 Guidelines were not satisfied in the this case.
Consequently, the first part of the first plea must be rejected, without there being any need to consider whether at the date of the contested decision Lufthansa was in a position to deal with the difficulties faced by Austrian Airlines.
Second part of the first plea, alleging insufficiency of the own contribution of the beneficiary of the restructuring aid
The applicant maintains, in essence, that the Commission was wrong to take the view that the own contribution of the beneficiary of the aid at issue was appropriate in the light of point 43 of the 2004 Guidelines.
Point 43 of the 2004 Guidelines provides as follows:
‘The amount and intensity of the aid must be limited to the strict minimum of the restructuring costs necessary to enable restructuring to be undertaken in the light of the existing financial resources of the company, its shareholders or the business group to which it belongs. Such assessment will take account of any rescue aid granted beforehand. Aid beneficiaries will be expected to make a significant contribution to the restructuring plan from their own resources, including the sale of assets that are not essential to the firm’s survival, or from external financing at market conditions. Such contribution is a sign that the markets believe in the feasibility of the return to viability. Such contribution must be real, i.e. actual, excluding all future expected profits such as cash flow, and must be as high as possible.’
It follows, in particular, from point 44 of the 2004 Guidelines that the Commission will normally consider that a contribution of at least 50% by beneficiaries of the aid is appropriate in the case of large firms.
It also follows from recital 307 to the version of the contested decision produced by the Commission in response to the order of the Court of 27 January 2014, adopting a measure of inquiry, that:
‘Based on the above, the Commission has reached the conclusion that the total overall restructuring costs will amount to approximately EUR 1 405 million (or EUR 1 048 if Lufthansa does not reduce Austrian Airlines’ debts by EUR 357 million), while the level of own contribution (contributed jointly or severally by Austrian Airlines and/or Lufthansa) amounts to EUR 905 million (or EUR 548 million). This amounts to 64% (or 52%) of the restructuring costs. The Commission can therefore conclude that the requirement to make a sufficient own contribution to the restructuring costs has been met in the present case.’
It is in the light of those factors that it is appropriate to answer the applicant’s arguments.
As regards, in the first place, the applicant’s argument that only the contribution of the beneficiary of the aid at issue from its own funds must be taken into account for the purposes of verifying the appropriateness of the contribution to the restructuring plan, it is sufficient to observe that it follows from point 43 of the 2004 Guidelines that the beneficiary of the aid may contribute to the restructuring through external financing obtained at market conditions.
As regards, in the second place, the applicant’s argument that Lufthansa’s contribution is not external financing within the meaning of point 43 of the 2004 Guidelines, on the ground that if Lufthansa was not on the point of taking over Austrian Airlines on the date of adoption of the contested decision it could not be regarded as an external investor and that, moreover, Lufthansa did not make capital available to Austrian Airlines either in cash or in kind for the latter’s restructuring, it cannot be upheld.
First of all, the fact that Austrian Airlines was not in the situation of a firm being taken over by a group of undertakings, within the meaning of point 13 of the 2004 Guidelines, as stated at paragraph 162 above, is of no relevance to the fact that Lufthansa did indeed represent, at the time of adoption of the contested decision, a private investor whose takeover bid included, in addition to payment of an amount of EUR 366 268.75 and the grant of a debtor warrant of up to EUR 162 million, payment of a negative price consisting in the payment by the Republic of Austria of restructuring aid in favour of Austrian Airlines, while Lufthansa had undertaken to participate in that restructuring in the restructuring plan submitted to the Commission.
Next, it follows from the actual wording of point 43 of the 2004 Guidelines that those Guidelines do not require that the external financing be provided in the form of capital in cash or in kind. The Commission was therefore entitled to take the view, at recitals 303 and 304 to the contested decision, that such external financing could take the form, in particular, of the assumption of operating losses or of costs such as those normally resulting from a concentration, without making a manifest error of assessment.
Last, although it follows from recital 302 to the contested decision that the Commission considered that the payment of Austrian Airlines’ debt burden by Lufthansa could be regarded as an own contribution only in so far as it took the form of a capital injection and not a simple purchase of debts, it must be stated that the objective is to ensure that the payment of Austrian Airlines’ debt burden is effective and not to require that Lufthansa’s contribution necessarily takes the form of payment of a cash sum.
As regards, in the third place, the applicant’s argument that it would in any event be impossible to regard Lufthansa’s assumption of Austrian Airlines’ operating losses for the period 2009 to 2013 as a contribution to the restructuring of Austrian Airlines on the ground that it was not an actual contribution, since those losses have not yet been made and might be lower than envisaged, and that, furthermore, the assumption of those future operating losses cannot be assimilated to payment of a contribution to the restructuring account, which is how the Commission treats it, it must also be rejected as misconceived.
In fact, it follows from recitals 302 and 303 to the contested decision that, contrary to the applicant’s contention, it is not the assumption of possible operating losses that is treated by the Commission as a payment to the account by way of a contribution to the restructuring, but the possible capital injection by Lufthansa in favour of Austrian Airlines in order to reduce the latter’s debt ratio.
Furthermore, it follows from recital 295 to the contested decision that the Commission considered that the negative views of Austrian Airlines’ future overall results submitted in the restructuring plan were based on realistic assumptions with regard to fuel price, exchange rates, traffic flows and the development of the market. The applicant puts forward no argument capable of calling the plausibility of those assumptions into question. Thus, it does not explain how Austrian Airlines’ future operating losses might be lower than those envisaged in the restructuring plan.
Accordingly, the applicant has failed to demonstrate the existence of a manifest error of assessment by the Commission as regards the appropriateness of Austrian Airlines’ own contribution to the financing of the restructuring plan in the light of point 43 of the 2004 Guidelines.
It follows that the second part of the first plea must be rejected as unfounded.
Third part of the first plea, alleging that the restructuring plan and the compensatory measures are insufficient
In the context of the third part of the first plea, the applicant criticises the appropriateness of the measures envisaged in the restructuring plan for returning Austrian Airlines to viability and also of the compensatory measures provided for in the contested decision.
– The measures envisaged in the restructuring plan
In the first place, as regards the applicant’s complaint that the Commission was wrong to take the view that the restructuring plan submitted for its consideration complied with the 2004 Guidelines, when the aid at issue was allocated solely to the financial restructuring of Austrian Airlines, it should be borne in mind that, according to point 17 of the 2004 Guidelines:
‘Restructuring … will be based on a feasible, coherent and far-reaching plan to restore a firm’s long-term viability. Restructuring usually involves one or more of the following elements: the reorganisation and rationalisation of the firm’s activities on to a more efficient basis, typically involving the withdrawal from loss-making activities, the restructuring of those existing activities that can be made competitive again and, possibly, diversification in the direction of new and viable activities. Financial restructuring (capital injections, debt reduction) usually has to accompany the physical restructuring. Restructuring operations within the scope of these Guidelines cannot, however, be limited to financial aid designed to make good past losses without tackling the reasons for those losses.’
Restructuring therefore normally includes, according to the 2004 Guidelines, an industrial aspect, which envisages measures designed to reorganise and rationalise the undertaking’s activities, and a financial aspect, which may take the form, in particular, of a capital injection or debt reduction. In that sense, restructuring cannot be confined to financial aid.
Contrary to the applicant’s assertion, however, that does not mean that the restructuring aid must necessarily finance the measures adopted in the context of the industrial aspect of the restructuring. Thus, it is necessary to take into account point 43 of the 2004 Guidelines, which provides that the amount of the aid must be limited to the strict minimum of the costs necessary to enable restructuring to be undertaken in the light of the financial resources of the undertaking. In the case of an undertaking facing significant debts, as Austrian Airlines did in the present case, the essential amount of the aid will logically be assigned to debt reduction, while the industrial restructuring measures will be assumed by the recipient of the aid from its own funds and also from any external financing obtained at market conditions.
The present complaint must therefore be rejected as unfounded.
In the second place, as regards the applicant’s complaint that the Commission was wrong to take the view in the contested decision that the measures for the restructuring of Austrian Airlines would produce cost and revenue synergies, when such synergies are inherent in any concentration, it should be observed that, even on the assumption that it were established, that circumstance does not prove that those measures are not appropriate in the present case and that they would not enable Austrian Airlines’ situation to be improved and its return to viability ensured, which is the objective of any restructuring. Such an argument must therefore be rejected as ineffective.
In the third place, as regards the applicant’s complaint that the measures envisaged in the restructuring plan as regards the reduction of Austrian Airlines’ staff are not connected with its restructuring, since its marketing activities will not be reduced, but simply taken over by Lufthansa to cover the Austrian market, the same response is called for. Even on the assumption that it were well founded, such an assertion does not affect the fact that that measure will have the effect of reducing Austrian Airlines’ costs and is a classic measure for ensuring the return to profitability of an undertaking which is being restructured, as is apparent from point 43 of the 2004 Guidelines.
In the fourth place, the applicant takes issue with the Commission for having considered that the revenue synergy measures envisaged in the restructuring plan were appropriate, whereas those measures are based on a policy of unfair price competition, which constitutes an infringement of Articles 81 EC and 82 EC.
The applicant described Austrian Airlines’ unfair pricing strategies to the Commission, in a complaint of 26 January 2009. So far as Lufthansa is concerned, the applicant states that that policy is organised through framework agreements, such as that provided for in the ‘PartnerPlus Progress 2008/2009’ programme, concluded with business customers, under which significant discounts are offered on routes on which Lufthansa has a monopoly, in return for which those customers purchase flights on routes subject to competition, in particular on routes between Austria and Germany. The revenue synergies created by the incorporation of Austrian Airlines in Lufthansa’s framework agreements could not be recognised as forming part of a restructuring plan for an undertaking in difficulty in receipt of State aid, without legitimising an infringement of Articles 81 EC and 82 EC. In the applicant’s submission, the compensatory measures imposed by the Commission in the contested decision provide no protection against such conduct and the fact that other undertakings offer framework agreements providing various possibilities of discounts cannot call that conclusion into question.
In that regard, it should be observed that such a complaint is irrelevant in the context of an action against a decision whereby the Commission ruled on the compatibility of aid with the common market. If the applicant is of the view that Lufthansa’s and Austrian Airlines’ pricing policy constitutes an infringement of Article 81 EC and Article 82 EC, it should lodge a complaint to that effect with the Commission, which, moreover, it did with regard to what it claims to be Austrian Airlines’ predatory pricing policy. It should be borne in mind, moreover, that, as is apparent from the case-law cited in paragraph 127 above, the legality of a Commission decision on State aid must be assessed in the light of the information available to the Commission when the decision was adopted. Accordingly, it does not avail the applicant to rely on Lufthansa’s pricing policy when it had not lodged a complaint with the Commission concerning that policy on the date on which the contested decision was adopted. The latter consideration also applies with respect to Lufthansa’s and Austrian Airlines’ pricing conduct after the adoption of the contested decision.
In the fifth place, as regards the complaint that the Commission was wrong to approve the restructuring plan in the contested decision, when that plan contained expansionist measures in that, contrary to the 1994 aviation sector Guidelines, it envisaged the increase of Austrian Airlines’ capacities from 2010, it should be observed that, as is apparent from the contested decision, the limitation of Austrian Airlines’ capacities is not a restructuring plan measure but a compensatory measure.
It should also be observed, moreover, that it follows from point 38(4) of the 1994 aviation sector Guidelines that restructuring must not lead to an increase beyond market growth in the number of aircraft or seats offered in the relevant markets.
However, that limitation must be reconciled with the objective laid down in point 38(1) of the 1994 aviation sector Guidelines and reproduced in point 38 the 2004 Guidelines, namely that the restructuring plan must enable the airline to be restored to long-term viability within a reasonable time. However, such an objective would be difficult to achieve if the capacities of the airline in receipt of the restructuring aid could not increase at the same rate as its competitors, in particular if there should be rapid growth in the market.
In the present case, it follows from recital 322 to the contested decision that the restructuring plan envisaged a favourable reversal of the market and capacity increases in 2010.
Therefore, in providing in Article 2 of the contested decision that the Republic of Austria is to take the necessary measures to ensure that Austrian Airlines reduces its overall capacity in terms of available seat kilometres by 15% of its January 2008 level by the end of 2010, and in limiting Austrian Airlines’ capacity growth in available seat kilometres to the average of the growth rate observed for airlines belonging to the Association of European Airlines until the end of 2015 or until Austrian Airlines reaches break-even, the Commission ensured that the expansion of Austrian Airlines’ capacity was limited, while preserving a return to viability within a reasonable time.
This complaint must therefore be rejected as unfounded.
In the sixth place, as regards the complaint that the Commission was wrong to take the view in the contested decision that the reduction of Austrian Airlines’ fleet was an appropriate measure, when a reduction of the regional fleet would in any event be offset by the acquisition of wide-bodied aircraft and also by the use of long-haul aircraft on short- and mid-haul routes in order to increase Austrian Airlines’ capacities on that market, it should be observed that, since the reduction of capacity is expressed by the Commission in the contested decision in terms of available seat kilometres, Austrian Airlines remains free to pass that reduction of capacity on to its fleet as it wishes, provided that it is an integral part of the restructuring plan, in accordance with point 40 of the 2004 Guidelines.
Such a complaint must therefore also be rejected as unfounded.
– The compensatory measures provided for in the contested decision
In the first place, the applicant takes issue with the Commission, in essence, for having considered that a measure entailing a capacity reduction of 15% by comparison with the level in January 2008 was an appropriate compensatory measure to remedy the competition-distorting effects created by the aid at issue. In support of that plea, the applicant puts forward a number of arguments.
First, the applicant maintains that such a measure has no practical effect on Austrian Airlines’ principle market, the market for short- and mid-haul flights from and to Austria and, more particularly, between Austria and Germany and between Austrian and Eastern Europe.
In that regard, it should be observed that point 40 of the 2004 Guidelines provides that the compensatory measures granted must be proportionate to the relative importance of the undertaking on the markets on which it operates and that they should thus take place, in particular, in the markets in which the undertaking will have a significant position after restructuring.
It follows from recital 320 to the contested decision that Austrian Airlines’ capacity was cut on scheduled flights and also on low-cost flights during 2008.
It also follows from recital 322 to the contested decision that early in 2009 further restructuring measures resulted in further capacity reductions on scheduled flights and on charter flights.
It therefore does not follow from the contested decision that capacity reductions in 2008 and 2009 were applied solely on long-haul flights and on Austrian Airlines’ charter flights.
Furthermore, even if the capacity reductions mentioned in the contested decision were applied only on long-haul flights and charter flights, it is not unreasonable to consider that the new reduction in capacity imposed in the contested decision would have been more likely to be applied on the other types of flights offered by Austrian Airlines, including short- and mid-haul flights between Austria and Germany or between Austria and Eastern Europe.
Furthermore, the effectiveness of the capacity-reduction measures must also be assessed against the commitments given in the decision authorising the concentration. In that regard, it is apparent from recitals 328 and 329 to the contested decision that Lufthansa and Austrian Airlines undertook to make time slots available on routes from Vienna to Stuttgart, Cologne/Bonn, Munich, Frankfurt-am Main and Brussels, in order to allow competitors to enter those routes.
In those circumstances, the imposition of a capacity-reduction measure based on available seat kilometres does not appear to have been manifestly inappropriate.
Second, the applicant maintains that, in order to fix the level of capacity reduction at 15%, the Commission ought to have taken into account Austrian Airlines’ capacity level at the date of adoption of the contested decision, that is to say, on 28 August 2009, and not in January 2008. In the applicant’s submission, even if the Commission could have taken account of the capacity reductions that took place in the context of the restructuring before the adoption of the contested decision, it could not take account of the capacity reductions that took place before the Republic of Austria issued the mandate authorising the privatisation of Austrian Airlines to ÖIAG, that is to say, on 12 August 2008. In the applicant’s submission, there is no connection between the capacity reductions that took place under the restructuring of Austrian Airlines with a view to its privatisation in the context of which the aid at issue was granted and the capacity reductions preceding that privatisation.
In that regard, it should be observed that it follows from point 40 of the 2004 Guidelines that the degree of capacity reduction must be established on a case-by-case basis and that the fact that the capacity reduction took place before the grant of the aid does not preclude its being taken into account as a compensatory measure, provided that it is an integral part of the restructuring of the undertaking in difficulty in receipt of the aid, as established in the restructuring plan.
It follows that, contrary to the applicant’s assertion, the Commission was not required, when setting the rate of capacity reduction, to take into account only the capacity level at the date of adoption of the contested decision, but it was entitled to take account of the capacity reductions that took place earlier, provided that they formed an integral part of the restructuring of Austrian Airlines, as envisaged in the restructuring plan notified to the Commission by the Republic of Austria.
Furthermore, as regards the applicant’s argument that the Commission was not entitled in any event to take account of the capacity reductions achieved before 12 August 2008, the date on which the Republic of Austria issued the mandate authorising the privatisation of Austrian Airlines to ÖIAG, it should be observed that, as stated above, the possibility of taking account of the capacity reduction measures that took place before the grant of the aid depends on the fact that those measures were implemented in the framework of the restructuring of the undertaking in receipt of the aid. The fact that the privatisation mandate was formally issued by the Republic of Austria to ÖIAG on 12 August 2008 does not in itself preclude the possibility that the capacity reductions that took place from January 2008 might be regarded as forming an integral part of the restructuring of Austrian Airlines with a view to its privatisation. It follows from the contested decision, moreover, that the capacity reductions adopted by Austrian Airlines from January 2008 were not part of those envisaged in the ‘Go4Profit’ plan implemented in 2007 and conceived as part of a stand-alone solution.
In those circumstances, the complaint alleging that the 15% capacity reduction in seat kilometres imposed on Austrian Airlines as a compensatory measure was inappropriate must be rejected as unfounded.
In the second place, the applicant takes issue with the Commission for having taken account, by way of compensatory measures, of possible attempts at restructuring that took place more than one year before the notification of the aid at issue.
In that regard, in so far as this argument must be understood as relating to the reference in the contested decision to measures put in place in 2006 in the framework of the ‘Go4Profit’ plan, it is sufficient to observe that, contrary to the impression which the applicant would give, it follows from recital 319 to the contested decision that that plan was not regarded as a compensatory measure.
Consequently, the third part of the first plea must be rejected as unfounded.
Fourth part of the first plea, alleging infringement of Article 43 EC
In this part of the first plea, the applicant maintains, in essence, that, in the light of the case-law, the Commission was not entitled to declare the aid at issue compatible with the common market, since it is indissolubly linked to the maintenance of air traffic rights granted on the basis of a nationality clause contrary to Article 43 EC.
In that regard, it should be borne in mind that, as the applicant claims, while the procedure provided for in Articles 87 EC and 88 EC leaves a wide discretion to the Commission in coming to a decision on the compatibility of a system of State aid with the requirements of the common market, it is clear from the general scheme of the EC Treaty that that procedure must never produce a result which would be contrary to the specific provisions of the Treaty (see, to that effect, judgments of 21 May 1980 in
Commission
v
Italy
, 73/79, ECR,
EU:C:1980:129
, paragraph 11; of 19 September 2000 in
Germany
v
Commission
, C‑156/98, ECR,
EU:C:2000:467
, paragraph 78; and of 31 January 2001 in
Weyl Beef Products and Others
v
Commission
, T‑197/97 and T‑198/97, ECR,
EU:T:2001:28
, paragraph 75). That obligation on the part of the Commission to ensure that Articles 87 EC and 88 EC are applied consistently with other provisions of the EC Treaty is all the more necessary where those other provisions also pursue the objective of undistorted competition in the common market, as Article 43 EC does in the present case in seeking to preserve freedom of establishment and free competition between the economic operators of one Member State established in another Member State and the economic operators of the latter Member State. When adopting a decision on the compatibility of aid with the common market, the Commission must be aware of the risk of individual traders undermining competition in the common market (see, to that effect, judgment of 9 September 2010 in
British Aggregates and Others
v
Commission
, T‑359/04, ECR,
EU:T:2010:366
, paragraphs 91 and 92).
It has also been held that those aspects of aid which contravene specific provisions of the EC Treaty other than Articles 87 EC and 88 EC may be so indissolubly linked to the object of the aid that it is impossible to evaluate them separately (see, to that effect, judgments of 22 March 1977 in
Iannelli Volpi
, 74/76, ECR,
EU:C:1977:51
, and 15 June 1993 in
Matra
v
Commission
, C‑225/91, ECR,
EU:C:1993:239
, paragraph 41).
However, it must be stated that in the present case the preservation of Austrian Airlines’ air traffic rights did not constitute an aspect of the aid at issue. Although the maintenance of the air traffic rights represented an interest for Lufthansa, in that such rights correspond to a significant element of the assets of an airline, it was not a condition of the grant of the aid at issue. It was, rather, a condition of the success of a takeover of Austrian Airlines that applied to any purchaser, independently of whether the Republic of Austria was asked to accept a negative selling price including, if necessary, payment of State aid in favour of Austrian Airlines.
In those circumstances, contrary to the applicant’s contention, recourse to a legal device through the creation of a foundation governed by Austrian law in order to maintain Austrian Airlines’ Austrian nationality and, accordingly, to preserve the air traffic rights allocated to it on the basis of a nationality clause in bilateral agreements concluded with third States cannot be regarded as indissolubly linked to the aid at issue within the meaning of the case-law cited in paragraph 216 above.
Accordingly, the Commission cannot be criticised for having infringed Article 43 EC when taking the view that the aid at issue was compatible with the common market.
Nor does that finding prejudge the examination of the legality under Article 43 EC of the nationality clauses in the bilateral air service agreements concluded by the Republic of Austria with third States.
In that regard, it is important to observe that in the contested decision the Commission required the Republic of Austria to terminate such agreements or to renegotiate them, in accordance with Regulation No 847/2004 of the European Parliament and of the Council of 29 April 2004 on the negotiation and implementation of air service agreements between Member States and third countries (
OJ 2004 L 157, p. 7
). The Republic of Austria is also required, according to Article 2 of the contested decision, to inform the Commission of the steps which it has taken to ensure the conformity of such agreements with Community law.
In those circumstances, the fourth part of the first plea and, accordingly, the first plea in its entirety, must be rejected as unfounded.
Third plea, alleging misuse of powers
The applicant claims that the Commission departed from its own Guidelines when examining the appropriateness of Austrian Airlines’ own contribution, the restructuring measures and the compensatory measures for the purpose of adopting the contested decision and that it therefore misused its powers.
In that regard, it should be observed that even on the assumption that it were shown to be true — which is not the case in this instance — the assertion that the Commission departed from its own Guidelines when adopting the contested decision is not capable of demonstrating the existence of a misuse of powers, in the light of the conditions laid down in the case-law.
According to the case-law, a decision is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent factors, to have been taken with the sole, or at least the decisive, aim of achieving purposes other than those stated (judgments of 6 March 2002 in
Diputación Foral de Álava and Others
v
Commission
, T‑92/00 and T‑103/00, ECR,
EU:T:2002:61
, paragraph 84, and 12 September 2007 in
Olympiaki Aeroporia Ypiresies
v
Commission
, T‑68/03, ECR,
EU:T:2007:253
, paragraph 484). In the present case, it must be pointed out that the applicant has not put forward any indicium on which it might be supposed that the Commission, for reasons of expediency, applied the Community rules on State aid in a particularly rigorous or a particularly lenient manner and that it did not follow the correct procedure and apply the correct criteria, in accordance with the relevant rule of the Treaty and of secondary law.
Consequently, the third plea must be rejected as unfounded.
It follows that the action must be dismissed in its entirety.
Costs
Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
As the applicant has been unsuccessful and the Commission, and also ÖIAG, Lufthansa and Austrian Airlines have applied for costs, the applicant must be ordered, in addition to bearing its own costs, to pay the costs incurred by the Commission, by ÖIAG, by Lufthansa and by Austrian Airlines.
The Republic of Austria must be ordered to bear its own costs, in accordance with the first subparagraph of Article 87(4) of the Rules of Procedure.

On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:

1.
Dismisses the action;

2.
Orders Niki Luftfahrt GmbH, in addition to bearing its own costs, to pay the costs incurred by the European Commission, by Österreichische Industrieholding AG, by Deutsche Lufthansa AG and by Austrian Airlines AG;

3.
Orders the Republic of Austria to bear its own costs.

Gratsias
Kancheva
Wetter
Delivered in open court in Luxembourg on 13 May 2015.
[Signatures]
Table of contents

Background to the dispute

Procedure

Forms of order sought

Law

1. Admissibility

The absence of a signature on the original of the application

The applicant’s use of information not in the version of the contested decision published in the Official Journal of the European Union but contained in the version of the contested decision notified to the Republic of Austria

2. Substance

Second plea, alleging breach of the obligation to state reasons

First part of the second plea, alleging an error of reasoning as to the sufficiency of the compensatory measures in the light of the market situations in question

Second part of the second plea, alleging failure to state reasons as regards compliance with the ‘single aid’ principle

First plea, alleging infringement of the provisions of the EC Treaty

First part of the first plea, alleging a manifest error of assessment as to the identity and eligibility of the beneficiary of the aid

Second part of the first plea, alleging insufficiency of the own contribution of the beneficiary of the restructuring aid

Third part of the first plea, alleging that the restructuring plan and the compensatory measures are insufficient

– The measures envisaged in the restructuring plan

– The compensatory measures provided for in the contested decision

Fourth part of the first plea, alleging infringement of Article 43 EC

Third plea, alleging misuse of powers

Costs
(
*1
)	Language of the case: German.