# C_2019319EN.01002801.xml

| 23.9.2019 | EN | Official Journal of the European Union | C 319/28 |
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23.9.2019

EN

Official Journal of the European Union

C 319/28

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Appeal brought on 2 August 2019 by Deutsche Lufthansa AG against the order of the General Court (Fourth Chamber) made on 17 May 2019 in Case T-764/15, Deutsche Lufthansa AG v European Commission

(Case C-594/19 P)

(2019/C 319/29)

Language of the case: German

Parties

Appellant: Deutsche Lufthansa AG (represented by: A. Martin-Ehlers, Rechtsanwalt)

Other parties to the proceedings: European Commission, Land Rheinland-Pfalz

Form of order sought

The appellant claims that the Court of Justice should:

| — | set aside the order of the General Court of 17 May 2019 in Case T-764/15; |
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set aside the order of the General Court of 17 May 2019 in Case T-764/15;

| — | grant the form of order sought at first instance and annul the underlying Commission Decision SA.32833 of 1 October 2014; (1) |
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grant the form of order sought at first instance and annul the underlying Commission Decision SA.32833 of 1 October 2014; (1)

| — | in the alternative, refer the case back to the General Court for judgment; and |
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in the alternative, refer the case back to the General Court for judgment; and

| — | order the Commission to pay the costs of the proceedings. |
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order the Commission to pay the costs of the proceedings.

Grounds of appeal and main arguments

By its appeal, the appellant puts forward, in essence, the following grounds of appeal:

| — | The appellant already had locus standi in accordance with the judgment in Montessori. (2) That is because the granting of a loan from the liquidity pool in the amount of EUR 45 million in favour of Flughafen Frankfurt-Hahn GmbH constitutes an aid scheme. Furthermore, the funds from that loan demonstrably went to Ryanair. |
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The appellant already had locus standi in accordance with the judgment in Montessori. (2) That is because the granting of a loan from the liquidity pool in the amount of EUR 45 million in favour of Flughafen Frankfurt-Hahn GmbH constitutes an aid scheme. Furthermore, the funds from that loan demonstrably went to Ryanair.

| — | If the so-called Mory case-law (3) is applied, then the first alternative solution should be applied. The Commission disregarded essential elements of fact and additional benefits. Owing to the infringement of the appellant’s procedural rights, the Commission cannot be deemed to have conducted a proper investigation procedure. In this case too, the appellant was individually concerned and therefore had locus standi. |
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If the so-called Mory case-law (3) is applied, then the first alternative solution should be applied. The Commission disregarded essential elements of fact and additional benefits. Owing to the infringement of the appellant’s procedural rights, the Commission cannot be deemed to have conducted a proper investigation procedure. In this case too, the appellant was individually concerned and therefore had locus standi.

| — | Alternatively, the action is also admissible if the second alternative solution of the so-called Mory case-law is applied, according to which the appellant would have to prove that its market position was substantially affected by the aid. In this case the burden of proof is reversed, or at least lessened in favour of the appellant, since the Commission arbitrarily concealed the relevant facts that were known to it. Only in the alternative, the appellant submits that it has in fact also proved that it was substantially affected. The General Court’s legal assessment, which found otherwise, goes beyond the Court of Justice’s case-law and is based on a legally erroneous understanding of the relevant market. In that regard, the General Court distorts and curtails the appellant’s statement of the facts, alters the content of the decision at issue and infringes the rules governing the burden of proof. |
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Alternatively, the action is also admissible if the second alternative solution of the so-called Mory case-law is applied, according to which the appellant would have to prove that its market position was substantially affected by the aid. In this case the burden of proof is reversed, or at least lessened in favour of the appellant, since the Commission arbitrarily concealed the relevant facts that were known to it. Only in the alternative, the appellant submits that it has in fact also proved that it was substantially affected. The General Court’s legal assessment, which found otherwise, goes beyond the Court of Justice’s case-law and is based on a legally erroneous understanding of the relevant market. In that regard, the General Court distorts and curtails the appellant’s statement of the facts, alters the content of the decision at issue and infringes the rules governing the burden of proof.

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(1)  Commission Decision (EU) 2016/788 of 1 October 2014 on the State aid SA.32833 (11/C) (ex 11/NN) implemented by Germany concerning the financing arrangements for Frankfurt Hahn airport put into place in 2009 to 2011 (OJ 2016 L 134, p. 1).

(2)  Judgment of the Court of Justice of 6 November 2018, Scuola Elementare Maria Montessori Srl and Others (C-622/16 P to C-624/16 P, EU:C:2018:873).

(3)  Judgment of the Court of Justice of 17 September 2015, Mory SA and Others v European Commission (C-33/14 P, EU:C:2015:609).

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