Judgment;Abstract — ECLI:EU:T:2020:181
Date: 2020-05-13
Language of the case: German
Court formation: First Chamber, Extended Composition
Subject matter: State aids;Competition
Procedure: Action for annulment - unfounded
Origin: Germany

summary presentation of those pleas. That presentation must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to exercise its power of review. According to settled case-law, in order to guarantee legal certainty and a sound administration of justice, it is necessary, for an action to be admissible, that the basic legal and factual particulars on which a case is based be indicated coherently and intelligibly in the application itself (see, to that effect, judgments of 19 April 2012, Evropaïki Dynamiki v Commission, T‑49/09, not published, EU:T:2012:186, paragraph 90, and of 16 October 2013, TF1 v Commission, T‑275/11, not published, EU:T:2013:535, paragraph 95). 146 In the present case, it is apparent from the arguments set out in paragraph 137 above that the applicant has, in essence, confined itself to asserting refusal to accept that the Commission should put all airlines on an equal footing and that the present dispute does not concern an aid scheme. The applicant has also referred to the aid scheme at issue in the third plea, but only for the purpose of asserting that ‘the dispute does not relate to the scheme of support for the airlines, but to the actual obligation of repayment’ imposed by the contested decision. It must be pointed out that the applicant does not explain how the Commission erroneously found, in recital 349 of the contested decision, that the measures at issue constituted an aid scheme within the meaning of Article 1(d) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 TFEU (OJ 2015 L 249, p. 2020013459), especially since it refers neither to that recital nor to that provision. 147 Admittedly, it cannot be ruled out that certain of the arguments put forward in support of the first part of the first plea might be relevant in the context of a line of argument seeking to challenge the categorisation of the measures at issue as an aid scheme. Nevertheless, that cannot suffice to concede that the applicant has called that categorisation into question. Such a categorisation as an aid scheme is of a different nature from the assessment of the existence of State aid. Thus, the latter assessment consists in examining whether, in an individual case, the four cumulative criteria referred to in Article 107(1) TFEU are met. On the other hand, the categorisation as an aid scheme is intended to enable the Commission, in the context of a single administrative procedure, to carry out that examination jointly in respect of several individual aid measures, in the interests of procedural efficiency (see, to that effect, judgment of 5 October 1994, Italy v Commission, C‑47/91, EU:C:1994:358, paragraph 21). 148 In the absence of any support for its line of argument seeking to challenge the categorisation of the measures at issue as an aid scheme, however, the applicant reduces the Commission and the Court to speculating about the reasoning and precise observations, both in fact and law, that could lie behind its claims. It is precisely such a situation, creating legal uncertainty and anathema to a sound administration of justice, that Article 76 of the Rules of Procedure is designed to avoid (see, to that effect, order of 19 May 2008, TF1 v Commission, T‑144/04, EU:T:2008:155, paragraph 57). 149 It follows that, contrary to what the applicant submits, the requirement that it support its argument does not imply a reversal of the burden of proof. Since, in the contested decision, the Commission found that Law No 10/2010 and its implementing measures constituted an aid scheme, it was for the applicant, if it wished to challenge that categorisation, to put forward an argument to that effect. 150 The foregoing analysis is not called into question by the argument of the applicant based on paragraph 87 of the judgment of 14 February 2019, Belgium and Magnetrol International v Commission (T‑131/16 and T‑263/16, under appeal, EU:T:2019:91), given that the applicant cannot, when replying to a question of the Court, compensate for the absence of a sufficiently clear and precise presentation, in the text of the application itself, of a plea challenging the categorisation of the measures at issue as an aid scheme without rendering Article 76(d) of the Rules of Procedure devoid of purpose (see, to that effect and by analogy, order of 19 May 2008, TF1 v Commission, T‑144/04, EU:T:2008:155, paragraph 30). 151 That argument is, in any event, erroneous. The airport operators did not constitute the ‘national authorities’ envisaged by the requirement, which is apparent from paragraph 87 of the judgment of 14 February 2019, Belgium and Magnetrol International v Commission (T‑131/16 and T‑263/16, under appeal, EU:T:2019:91), according to which national authorities applying an aid scheme cannot have discretion as to the determination of the essential elements of the aid in question and the appropriateness of awarding it, since such a role fell, under Law No 10/2010 and its implementing legislation, to the Regional Executive of the Autonomous Region. Furthermore, contrary to the applicant’s contention, it is apparent from the contested decision, in particular from recitals 360, 387 and 402 thereof, that the Commission found that those operators did not have discretion, since they acted as intermediaries in the implementation of the aid scheme at issue. 152 In light of the foregoing considerations, the first part of the second plea must be rejected as partly inadmissible and partly unfounded. Second part of the second plea: inadequacy of the statement of reasons concerning the impact of the aid scheme at issue on competition and on trade between Member States 153 The applicant submits, in essence, that, even if the Commission could confine itself to examining the aid scheme at issue, the contested decision is inadequately reasoned as to the fact that that scheme was liable to distort competition and affect trade between Member States. In particular, in recitals 390 to 392 of the contested decision, the Commission was essentially limited to providing circular reasoning consisting of allegations relating to the liberalisation of the air transport sector, without explaining how the applicant benefited from an appreciable advantage, as is required by the case-law resulting from the judgment of 14 October 1987, Germany v Commission (248/84, EU:C:1987:437, paragraph 18). 154 The Commission submits that recitals 390 to 392 of the contested decision, the findings of which are not disputed by the applicant, are sufficiently substantiated in the light of the relevant case-law, including the judgment of 14 October 1987, Germany v Commission (248/84, EU:C:1987:437). 155 In that regard, for the purpose of categorising a national measure as State aid, it is not necessary to establish that the aid at issue has a real effect on trade between Member States and that competition is actually being distorted, but only to examine whether that aid is liable to affect such trade and distort competition (see, to that effect, judgments of 15 December 2005, Italy v Commission, C‑66/02, EU:C:2005:768, paragraph 111, and of 9 June 2011, Comitato ‘Venezia vuole vivere’ and Others v Commission, C‑71/09 P, C‑73/09 P and C‑76/09 P, EU:C:2011:368, paragraph 134). 156 In particular, if aid granted by a Member State strengthens the position of an undertaking as compared with that of other undertakings competing in trade within the Union, the latter undertakings must be regarded as affected by that aid (see judgment of 9 October 2014, Ministerio de Defensa and Navantia, C‑522/13, EU:C:2014:2262, paragraphs 51 and 52 and the case-law cited). 157 Moreover, in the case of an aid scheme, like in this case, the Commission may confine itself to examining the characteristics of the scheme in question in order to determine, in the reasons for the decision, whether, by reason of the high amounts or percentages of aid, the nature of the investments for which aid is granted or other terms of the scheme, it gives an appreciable advantage to recipients in relation to their competitors and is likely to benefit in particular undertakings engaged in trade between Member States. Thus, in a decision which concerns such a scheme, the Commission is not required to carry out an analysis of the aid granted in individual cases under the scheme. It is only at the stage of recovery of the aid that it is necessary to look at the individual situation of each undertaking concerned (see, to that effect, judgments of 14 October 1987, Germany v Commission, 248/84, EU:C:1987:437, paragraph 18, and of 9 June 2011, Comitato ‘Venezia vuole vivere’ and Others v Commission, C‑71/09 P, C‑73/09 P and C‑76/09 P, EU:C:2011:368, paragraph 63). 158 In the present case, the Commission, in recitals 390 to 392 of the contested decision, explained that airlines, receiving the payments made by airport operators under the aid scheme at issue, were active in a sector characterised by intense competition between operators from different Member States, and therefore were participating in trade within the European Union. In addition, it should be noted, as is moreover apparent from the remainder of the contested decision and, in particular, from Table 15 contained in recital 427 thereof, that the amounts of the payments made to the airlines were likely to be high. 159 Having regard to the principles recalled in paragraphs 155 to 157 above, contrary to what the applicant argues, recitals 390 to 392 of the contested decision were sufficient in the light of the Commission’s obligation to state reasons and the Commission did not have to explain further how the applicant, specifically, derived an appreciable advantage from the aid scheme at issue (see, to that effect, judgments of 7 March 2002, Italy v Commission, C‑310/99, EU:C:2002:143, paragraphs 88 and 89, and of 9 June 2011, Comitato ‘Venezia vuole vivere’ and Others v Commission, C‑71/09 P, C‑73/09 P and C‑76/09 P, EU:C:2011:368, paragraphs 114 and 121). 160 Accordingly, the second part of the second plea must be rejected as unfounded and, accordingly, the second plea in its entirety must be rejected. Third plea: error on the ground that the Commission did not examine whether the contested payment constituted de minimis aid 161 By its third plea, which is subdivided into two parts, the applicant submits, in essence, that the Commission erred, first, in failing to examine of its own motion whether the contested payment constituted de minimis aid and, second, in finding that the 2006 de minimis Regulation did not apply to that payment. 162 The Commission contends that the third plea should be rejected as ineffective and, in any event, as unfounded. First part of the third plea: the ex officio examination of the de minimis nature of the contested payment 163 The applicant submits that, in its assessment of the existence of State aid, the Commission erred in failing to verify whether the contested payment was de minimis in nature, since such a verification is closely linked to the examination of the criterion of the effect on trade between Member States and constitutes, consequently, a legal question which the Commission must always examine of its own motion. 164 That conclusion is not, in the applicant’s view, called into question by the case-law, resulting from the judgment of 9 June 2011, Comitato ‘Venezia vuole vivere’ and Others v Commission (C‑71/09 P, C‑73/09 P and C‑76/09 P, EU:C:2011:368), relied on by the Commission to argue that, in the context of an aid scheme, the examination of the possible de minimis nature of measures is a matter for the national authorities. In that other case, first of all, the Commission, unlike in the present case, expressly examined the question of de minimis aid in recital 110 of its Decision 2000/394/EC of 25 November 1999 on aid to firms in Venice and Chioggia by way of relief from social security contributions under Laws No 30/1997 and No 206/1995 (OJ 2000 L 150, p. 50), which decision was challenged in that judgment. Next, unlike the contested decision, which concerns only aid incompatible with the internal market, Decision 2000/394 contains a ‘mixed’ mechanism ordering the recovery of certain incompatible aid while concluding that other aid was compatible with the internal market, such that the implementation of that decision necessarily required an independent examination by the national authorities. Finally, in the present case, Article 1(2) of the operative part of the contested decision identifies the applicant by name as a beneficiary of aid and Article 2(1) of that operative part requires its recovery, thereby preventing an independent examination by the national authorities, whereas the operative part of Decision 2000/394 did not identify by name the beneficiaries of the aid the recovery of which it ordered. 165 It is also wrong, in the applicant’s view, for the Commission to claim that it was not obliged to examine of its own motion whether de minimis aid was involved since it had not been called upon to do so by the applicant during the administrative procedure. In that regard, the judgment of 22 January 2013, Salzgitter v Commission (T‑308/00 RENV, EU:T:2013:30, paragraph 121), relied on by the Commission, is irrelevant, since the passage of that judgment relied on by the Commission concerns the criterion of the selectivity of a measure and not, as in the present case, the criterion of the effect on trade. Furthermore, in the administrative procedure preceding the decision that was challenged in that judgment, the Federal Republic of Germany failed to argue that the coexistence of the tax scheme under examination by the Commission and a separate tax scheme was such as to eliminate the selectivity of some of the advantages obtained by the applicant in the case at issue. That omission, however, concerned relevant facts and therefore constitutes a factual issue, whereas, in the present case, the applicant’s alleged omission concerns the de minimis nature of the contested payment and, therefore, a legal question which the Commission was required to examine of its own motion. 166 The Commission contends that the first part of the third plea should be rejected as unfounded. 167 In that regard, it should be borne in mind that, when examining an aid scheme, the Commission may confine itself to examining the characteristics of the scheme in question and is not required to carry out an analysis of the aid granted in each individual case on the basis of such a scheme. It is only at the stage of recovery of the aid that it is necessary to look, at the national level, at the individual situation of each undertaking concerned (see, to that effect, judgment of 9 June 2011, Comitato ‘Venezia vuole vivere’ and Others v Commission, C‑71/09 P, C‑73/09 P and C‑76/09 P, EU:C:2011:368, paragraph 63). 168 It follows that, contrary to what the applicant claims, the Commission was not required to examine whether the contested payment was de minimis in nature, that examination being a matter for the Italian authorities at the stage of recovery of the aid. 169 That finding is not called into question by the three arguments put forward by the applicant aimed at limiting the scope of the case-law referred to in paragraph 167 above, by seeking to distinguish the contested decision from Decision 2000/394, which was challenged in actions giving rise to that case-law. 170 In the first place, as regards the fact that, unlike in the present case, Decision 2000/394 expressly referred, in recital 110 thereof, to the de minimis rules, it is sufficient to point out that the Commission did not, in that recital 110, carry out a specific examination of the de minimis nature of the measures at issue in that decision, but simply made, as the Commission rightly notes, a general reference to the de minimis rules. Consequently, the absence of an analogous recital in the contested decision cannot justify distinguishing the present case from the relevant circumstances in the case giving rise to the judgment of 9 June 2011, Comitato ‘Venezia vuole vivere’ and Others v Commission, C‑71/09 P, C‑73/09 P and C‑76/09 P, EU:C:2011:368. That conclusion is all the more necessary since, as the Commission points out, de minimis regulations are, pursuant to Article 288 TFEU, directly applicable in all Member States. 171 Moreover, a line of reasoning of the General Court similar to the line of argument put forward by the applicant has already been rejected by the Court of Justice. In the judgment of 28 November 2008, Hotel Cipriani and Others v Commission (T‑254/00, T‑270/00 and T‑277/00, EU:T:2008:537, paragraphs 100 to 111 and 251 and 252), the General Court held that, although it was not for the national authorities, when implementing the decision at issue in that case, to verify in each individual case whether the conditions for the application of Article 107(1) TFEU were met, those authorities should not, in that particular case, recover the individual de minimis aid, since Decision 2000/394 was to be interpreted, having regard to recital 110 thereof, as precluding the categorisation as aid of measures which complied with the de minimis rule. However, in its judgment of 9 June 2011, Comitato ‘Venezia vuole vivere’ and Others v Commission (C‑71/09 P, C‑73/09 P and C‑76/09 P, EU:C:2011:368), ruling on appeal against the judgment of 28 November 2008, Hotel Cipriani and Others v Commission (T‑254/00, T‑270/00 and T‑277/00, EU:T:2008:537), the Court of Justice held that, in reaching that conclusion — in so far as the General Court had relied on a misinterpretation of the scope of that decision, according to which the national authorities were not required to verify in each individual case whether the advantage granted was, for its recipient, liable to distort competition and affect trade within the Union — the General Court had disregarded the Court of Justice’s earlier case-law according to which, when the Commission rules in a general and abstract way on a scheme of State aids, which it declares incompatible with the internal market and orders the recovery of the amounts received under that scheme, it is for the Member State to verify the individual situation of each undertaking concerned by a recovery operation (see, to that effect, judgment of 9 June 2011, Comitato ‘Venezia vuole vivere’ and Others v Commission, C‑71/09 P, C‑73/09 P and C‑76/09 P, EU:C:2011:368, paragraphs 61 to 64 and 114 to 117). 172 In the second place, as regards the argument relating to the ‘mixed’ nature of the operative part of Decision 2000/394, it is sufficient to point out that, having regard to the considerations set out in paragraph 171 above, the Court of Justice, when referring to the need for individual examination by the national authorities, did not rely on that circumstance, but recalled the case-law relating to the obligations of the national authorities when implementing a Commission decision relating to an aid scheme. 173 In the third place, it is indeed true that the operative part of Decision 2000/394 does not identify by name the beneficiaries of the aid incompatible with the internal market, unlike Article 1(2) of the operative part of the contested decision, which identifies the applicant by name. However, that circumstance is irrelevant, since verification of the applicant’s individual situation necessarily falls to the Italian authorities since the Commission confined itself to an analysis of the characteristics of the aid scheme at issue. In any event, it follows from a reading of the operative part of the contested decision, beyond Article 1(2) thereof, that the Commission expects the Italian authorities to carry out an individualised examination of the situation of the beneficiaries given that, in Article 4 of that operative part, it requests the Italian Republic to communicate to it, in particular, the exact list of beneficiaries, the total amount to be recovered from each beneficiary and a detailed description of the measures already taken and planned in order to comply with the contested decision. 174 On that point, it appears that the Italian authorities have notified a recovery decision to the applicant. When questioned on that point at the hearing, the applicant replied that it had not brought a national action against that decision, contrary to what it had, however, announced to the Commission in the context of their correspondence subsequent to the adoption of the contested decision. In the light of the case-law set out above, relating to the respective roles of the Commission and the national authorities, the applicant cannot use the present action to make good its lack of diligence in bringing such a national action. 175 As to the remainder, the applicant’s argument challenging the relevance of the case giving rise to the judgment of 22 January 2013, Salzgitter v Commission (T‑308/00 RENV, EU:T:2013:30) must be rejected. Since the examination of the individual situation of the beneficiaries of an aid scheme is a matter for the national authorities and not for the Commission, the question of whether the Commission had to examine the de minimis nature of the single contested payment, without being called upon to do so by the applicant, is inconsequential. 176 In the light of the foregoing, the first part of the third plea must be rejected. Second part of the third plea: application of the de minimis regulations 177 The applicant relies on the de minimis nature of the contested payment, arguing that it satisfies the conditions of the 2006 de minimis Regulation. 178 In particular, as regards first of all the scope of the 2006 de minimis Regulation, the applicant submits that that regulation applies in this case ratione materiae and ratione temporis, rather than the 2013 de minimis Regulation, as the Commission suggested in its email of 18 August 2017. 179 Next, as regards the conditions to be satisfied in order for aid to be regarded as de minimis in nature, the applicant submits that the limit of EUR 200 000 over a period of three fiscal years, set in Article 2(2) of the 2006 de minimis Regulation, was not exceeded in the case at hand, having regard to the amount of EUR 30 000 of the contested payment. That finding applies all the more so in relation to the amount of the financing costs, which constitutes the relevant amount, as the applicant has argued in the context of the second plea. Moreover, the Commission incorrectly contends that it is unlikely that the limit of EUR 200 000 was not exceeded, in view of the extensive aid received by the Lufthansa group, to which the applicant belongs. In particular, according to the applicant, the aid granted to the other entities of the Lufthansa group cannot be taken into account, since the ‘functional concept of an undertaking’, on which the Commission relies, is not applicable, since it is not in the 2006 de minimis Regulation. 180 As regards the condition laid down in Article 2(4) of the 2006 de minimis Regulation, requiring it to be possible to calculate precisely and in advance the ‘gross grant equivalent’ of aid, invoked by the Commission in its email of 18 August 2017, the applicant challenges its applicability to the contested payment. 181 In any event, the applicant disputes that it is for it to demonstrate that the conditions of the 2006 de minimis Regulation are satisfied in the present case. That regulation provides that the burden of proof is on the beneficiaries of aid vis-à-vis the national authorities, but does not provide for such a burden vis-à-vis the Commission. 182 The Commission submits that the second part of the third plea should be rejected as ineffective since, even assuming that the contested payment could be de minimis in nature, such a finding would be for the Italian authorities to make. In any event, that second part is unfounded, since the applicant has not shown that all the conditions of the 2006 de minimis Regulation were satisfied in the present case. 183 In that regard, it is sufficient to note that the arguments put forward in support of the second part of the third plea are ineffective. Indeed, as is apparent from the examination of the first part of the third plea, it was not for the Commission to examine whether the contested payment was de minimis in nature. In those conditions, those arguments, which, moreover, are essentially directed against the position taken by the Commission in the context of email exchanges subsequent to the adoption of the contested decision, cannot be such as to call into question the legality of that decision. 184 As to the remainder, the applicant argued at the hearing that the contested payment, which was made on 19 April 2013, was not financed by funds originating from the Autonomous Region, since, as is apparent from recital 89(b) of the contested decision, the annual regional contributions allocated to SOGAER and GEASAR for 2013 had indeed been approved by that region, but they were never ultimately paid to them. 185 In that regard, it is apparent from Table 15, set out in recital 427 of the contested decision, and from tables summarising the actions undertaken by SOGAER over the period from 2010 to 2013, referred to in recital 113 of the contested decision and produced by the Commission in response to a written question from the Court, that the contract at issue must be regarded as pertaining to 2012. Consequently, the contested payment, made in the spring of 2013, was covered by the regional contribution for 2012, which was paid to SOGAER. In any event, to the extent that the applicant wishes to challenge that finding, that question falls within the examination, by the Italian authorities, of its individual situation. 186 In the light of all the foregoing considerations, the third plea must be rejected and, accordingly, the action must be dismissed in its entirety. Costs 187 Under Article 134(1) 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. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission. On those grounds, THE GENERAL COURT (First Chamber, Extended Composition), hereby: 1. Dismisses the action; 2. Orders Germanwings GmbH to pay the costs. Papasavvas Svenningsen Valančius Csehi Nihoul Delivered in open court in Luxembourg on 13 May 2020. [Signatures] Table of contents * Language of the case: German.