Opinion of the Advocate General — ECLI:EU:C:2024:867
Date: 2024-10-04
Language of the case: English
Procedure: Action for annulment;Appeal - successful
Origin: Hungary;Romania

summary form, coherently and intelligibly in the application itself. Whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with those provisions, must appear in the application (see, to that effect, judgments of 3 March 2022, WV v EEAS, C‑162/20 P, EU:C:2022:153, paragraphs 67 and 68, and of 27 February 2024, EUIPO v The KaiKai Company Jaeger Wichmann, C‑382/21 P, EU:C:2024:172, paragraph 96). 77 Consequently, in those circumstances, it was not for the General Court to supplement the arguments put forward by Carpatair in its application, by searching for and identifying, in the annexes thereto, evidence capable of supporting the admissibility of Carpatair’s action. 78 The General Court therefore erred in law in relying, in paragraph 77 of the judgment under appeal, on the existence of a loss of an opportunity to make a profit resulting from the fact that it was impossible for Carpatair to take over two routes from Timișoara International Airport to the north of Italy. 79 Second, the General Court noted, in paragraphs 74 to 76 of the judgment under appeal, that it was apparent from Annex A.7. to the application that, between 2008 and 2010, Carpatair’s net yield on the five routes from Timișoara International Airport on which it held that that company was in competition with Wizz Air had decreased by 52% as regards four routes to Italy, and by 57% as regards the route to Düsseldorf (Germany). 80 In that regard, it should be noted that, as Wizz Air has argued, that finding stems from a distortion of Annex A.7 to Carpatair’s application for annulment. Those percentages do not reflect the decrease in yield on those routes, but are equivalent to the ratio represented by the yields on those routes for 2010 compared with the yields on the same routes for 2008, as Carpatair indeed acknowledges in its response. 81 In addition, as Wizz Air and AITTV submit, without being contradicted by Carpatair, it is apparent from Annex A.7 that, during that period, the yield on certain routes operated by Carpatair from Timișoara International Airport, on which the General Court held, in paragraph 69 of the judgment under appeal, that Carpatair had not demonstrated that it was in competition with Wizz Air, decreased as much as, if not more than, the yield on the routes on which, according to the General Court, Carpatair was in direct competition with Wizz Air. 82 By not taking such evidence into account even though it was manifestly apparent from Annex A.7 to Carpatair’s application at first instance and by not explaining the reasons for that omission, the General Court distorted that item of evidence and infringed its obligation to state reasons. 83 Moreover, in the light of such an overall reduction in yield on the routes operated by Carpatair from Timișoara International Airport, the General Court could not merely state, in paragraph 80 of the judgment under appeal, that the evidence submitted by that airline in order to establish that the 2008 and 2010 agreements were able to have a substantial effect on its competitive position on the markets concerned was not called into question by the arguments seeking to demonstrate that that reduction might have been caused by other factors, such as the allegedly outdated business model of that airline, that company’s competition with airlines other than Wizz Air or the global financial crisis, without taking those arguments into consideration and, in any event, without explaining why those arguments had to be rejected. 84 Admittedly, as the General Court observes in paragraph 82 of the judgment under appeal, Carpatair cannot be required to demonstrate that its substantial financial difficulties are due exclusively to the 2008 and 2010 agreements. However, it is still necessary that the General Court could conclude that it was at least plausible that those agreements were the cause of those difficulties. 85 It follows from all the foregoing considerations that the General Court did not substantiate its finding that the 2008 and 2010 agreements were liable to have a substantial effect on Carpatair’s competitive position on the markets concerned. 86 As regards, in the second place, the General Court’s finding, in paragraphs 71 and 72 of the judgment under appeal, that Carpatair demonstrated that it had a particular status which distinguished it from the other airlines operating at Timișoara International Airport, it should be recalled, as a preliminary point, that questions concerning the admissibility of an action for annulment constitute a question of public policy which the EU Courts may consider at any time, even on their own initiative (judgment of 21 September 2023, China Chamber of Commerce for Import and Export of Machinery and Electronic Products and Others v Commission, C‑478/21 P, EU:C:2023:685, paragraph 42 and the case-law cited). 87 However, the statement in paragraph 72 of the judgment under appeal that Carpatair had a particular status since it was the only company in direct competition with Wizz Air on five routes from Timișoara International Airport is vitiated by an inadequate statement of reasons, as has been noted in paragraph 70 of the present judgment. 88 The alleged competitive relationship between Wizz Air and Carpatair could not therefore support the finding that Carpatair had a particular status which distinguished it from all other persons and, as a result, distinguished it individually just as in the case of the addressee of the decision at issue, namely Romania. 89 In those circumstances, the statement, in paragraph 71 of the judgment under appeal, that the activity of Timișoara International Airport was centred on Carpatair’s activities and that Carpatair derived 90% of its turnover from its activities at that airport cannot suffice to demonstrate that that company, in respect of which it has not been established to the requisite legal standard that it was in competition with Wizz Air, is individually affected by the part of the decision at issue finding that the 2008 and 2010 agreements, which were concluded between that airport and Wizz Air, do not constitute State aid within the meaning of Article 107 TFEU. 90 It follows from all the foregoing considerations that the General Court did not substantiate to the requisite legal standard its conclusion that Carpatair had demonstrated that it was individually concerned by the part of the decision at issue relating to the 2008 and 2010 agreements. – The condition that Carpatair must be directly concerned 91 As the General Court rightly pointed out in paragraphs 87 and 89 of the judgment under appeal, in order to establish that it was directly concerned by the decision at issue, Carpatair was required, inter alia, to demonstrate that that decision produces direct effects on its legal situation by adequately explaining the reasons why that decision is liable to place it in an unfavourable competitive position. 92 In that regard, the General Court noted, in paragraph 90 of the judgment under appeal, that it was apparent from the file that Wizz Air was the alleged recipient of the 2008 and 2010 agreements and of the 2010 AIP, that that company and Carpatair carried out similar activities and that they were active on the same services market and on the same geographical market. It therefore concluded from this that Carpatair had adequately explained the reasons why the decision at issue was liable to place it in an unfavourable competitive position. 93 However, AITTV complains that the General Court found, in essence, in paragraph 90, that Wizz Air and Carpatair were competitors, without taking into account the counter-arguments which had been put forward before it in that regard. 94 As has already been stated in paragraph 70 of the present judgment, such a finding by the General Court is in fact vitiated by an inadequate statement of reasons. 95 The judgment under appeal is therefore also vitiated by an inadequate statement of reasons in so far as the General Court held that Carpatair is directly concerned by the decision at issue inasmuch as it covers both the 2008 and 2010 agreements and the 2010 AIP. 96 It follows from all the foregoing considerations that the General Court did not substantiate to the requisite legal standard that Carpatair had standing to bring an action for annulment of the decision at issue. Accordingly, in so far as Wizz Air’s first ground of appeal and AITTV’s first and fifth grounds of appeal dispute that standing of Carpatair, they must be upheld. 97 Without it being necessary to rule on the other grounds of AITTV and Wizz Air’s appeals, or on the Commission’s appeal, in particular in so far as they seek to call into question the General Court’s reasoning concerning the substance, the judgment under appeal must be set aside. The action before the General Court 98 In accordance with the second sentence of the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, if the decision of the General Court is set aside, the Court of Justice may itself give final judgment in the matter, where the state of the proceedings so permits. 99 That is not the position in the present case. 100 Having regard to the presence, in the judgment under appeal, of distortions of evidence and failures to state reasons, the examination of the admissibility of the action at first instance and, if necessary, of the merits of that action involves assessments of fact which would require, on the part of the Court, the adoption of additional measures of organisation of the procedure or investigation of the case. 101 Accordingly, the case must be referred back to the General Court. Costs 102 Since the case is to be referred back to the General Court, the costs relating to the present appeals must be reserved. On those grounds, the Court (Ninth Chamber) hereby: 1. Sets aside the judgment of the General Court of the European Union of 8 February 2023, Carpatair v Commission (T‑522/20, EU:T:2023:51); 2. Refers the case back to the General Court of the European Union; 3. Reserves the costs. Lycourgos Rodin Spineanu-Matei Delivered in open court in Luxembourg on 13 February 2025. A. Calot Escobar K. Lenaerts Registrar President * Language of the case: English.