Judgment — ECLI:EU:T:2018:33
Date: 2018-01-25
Language of the case: French
Court formation: Eighth Chamber, Extended Composition
Subject matter: State aids;Competition
Procedure: Action for annulment - unfounded
Origin: Belgium

summary of the pleas relied on. 95 It is settled case-law that that information must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application, if necessary without any further information. In order to guarantee legal certainty and the sound administration of justice it is necessary, if an action is to be admissible, that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the text of the application itself (order of 7 November 2013, Arbos v Commission, C‑615/12 P, not published, EU:C:2013:742, paragraph 33; see, also, judgment of 25 October 2012, Arbos v Commission, T‑161/06, not published, EU:T:2012:573, paragraph 23 and case-law cited). 96 However, it must be stated that the application is not, in that regard, compliant with Article 76(d) of the Rules of Procedure, in so far as the applicant merely pleaded the non-economic nature of the runway lighting operation, but did not put forward any argument to that effect. It follows that the second part of the third plea must be declared inadmissible. 97 As regards the examination of the applicant’s arguments in support of the non-economic nature of the Category III ILS, it must be borne in mind that any activity consisting in offering goods and services on a given market is an economic activity (judgment of 24 October 2002, Aéroports de Paris v Commission, C‑82/01 P, EU:C:2002:617, paragraph 79), which precludes activities falling within the scope of the exercise of the powers of a public authority. 98 It is therefore necessary, in the present case, to determine whether the activity at issue is connected, by its nature, its aim and the rules to which it is subject, with the exercise of powers which are typical of those of a public authority (see, to that effect, judgment of 19 January 1994, SAT Fluggesellschaft, C‑364/92, EU:C:1994:7, paragraph 30). 99 In that regard, the control and supervision of air space are typically the activities of a public authority (see, to that effect, judgments of 19 January 1994, SAT Fluggesellschaft, C‑364/92, EU:C:1994:7, paragraph 30, and of 26 March 2009, SELEX Sistemi Integrati v Commission, C‑113/07 P, EU:C:2009:191, paragraph 71). 100 It should be pointed out that the Category III ILS is, as defined by the Commission without being contradicted by the applicant, a ground approach instrument which uses a radio signal to increase the landing accuracy of an aircraft approaching a landing runway, thereby allowing a safe landing in adverse weather conditions. 101 As is clear from the responses of the applicant and of Sowaer, in support of the applicant at the hearing, to a question from the Court, and also from the evidence in the file, this is an instrument which is useful for air navigation at the landing stage, which may be necessary or essential for some airports, given the nature of their traffic, although it is not mandatory under the Belgian or international safety standards applicable in the air navigation sector. An airport without such equipment may find that airlines are reluctant to provide a regular service there because of the landing difficulties which may arise in adverse weather conditions. 102 Nevertheless, that instrument, even if it were mandatory and though it is indisputable that it contributes, like other systems, to the safety of landings, plays no part either in the control and supervision of airspace, as the applicant and the intervener in support of the applicant have acknowledged, or in the performance of any other public policy remit which might be exercised at an airport. It contributes to the delivery of the services offered by a civil airport in a competitive context to airlines within the framework of its general activity, which is an economic activity (see, to that effect, judgment of 24 October 2002, Aéroports de Paris v Commission, C‑82/01 P, EU:C:2002:617, paragraph 78). 103 Next, it must be observed that the applicant has not disputed the Commission’s argument that the absence of such equipment has the result only that, in certain meteorological conditions, the airlines using an airport will cancel their flights or redirect them to other airports possessing such equipment. Accordingly, an airport which is not equipped with a Category III ILS is in a less favourable competitive position than an airport which has installed such equipment, but that finding does not allow that equipment to escape being classified as an activity of an economic nature. 104 The applicant’s argument that the Kingdom of Belgium, in the context of the administrative procedure preceding the contested decision, stated that it regarded the Category III ILS system as ‘vital for handling airlines with aircraft based at the airport and also scheduled airlines’ cannot alter that assessment. 105 Indeed, an activity relating to the handling of airlines with ‘aircraft based at the airport and also scheduled airlines’ cannot imply that such an activity falls within the exercise of the powers of a public authority. 106 It follows that the applicant cannot properly rely on an alleged requirement relating to air navigation necessitating the Category III ILS in order for that equipment to be covered by the exercise of the powers of a public authority and, consequently, to escape classification as a system of an economic nature. 107 That finding is not called into question by the other arguments relied on by the applicant. 108 The fact that, according to the applicant, Belgocontrol considers the Category III ILS to be navigational aid equipment and that Eurocontrol defines it as one of the three landing systems allowing a precise approach capability in terms of navigation does not imply that that equipment falls within the powers of a public authority, having regard to the findings made in paragraph 102 above. 109 The reference in Point 14 of Annex I to Regulation No 965/2012, according to which a ‘category III operation [is a] landing operation using ILS’ is concerned only with a definition for the purpose of the technical requirements laid down in that regulation. The same applies to the reference contained in Subpart E of the Annex to Regulation No 859/2008, which replaces Annex III to Council Regulation (EEC) No 3922/91 of 16 December 1991 on the harmonisation of technical requirements and administrative procedures in the field of civil aviation (OJ 1991 L 373, p. 4). 110 Finally, although it is true that an aerodrome operator must ensure that means and procedures are established and implemented for providing safe conditions for ‘aerodrome operations in low visibility conditions’ [Annex IV to Regulation No 139/2014, part ADR.OPS.B.045, ‘Low visibility operations’, point (a)], it does not follow that the installation of a Category III ILS contributes to the exercise of the powers of a public authority, having regard to the findings made in paragraph 102 above. 111 The applicant further claims that, as equipment for air navigation, the Category III ILS is not of an economic nature, since, according to recital 5 of Regulation No 550/2004, ‘the provision of air traffic services, as envisaged by [the] regulation, is connected with the exercise of the powers of a public authority, which are not of an economic nature justifying the application of the Treaty rules of competition’. 112 In that regard, it should be noted that Regulation No 550/2004 falls within the context of the provisions of Regulation (EC) No 549/2004 of the European Parliament and of the Council of 10 March 2004 laying down the framework for the creation of the single European sky (OJ 2004 L 96, p. 1), Article 2 of which defines various concepts. It is clear from Article 2(4) of Regulation No 549/2004 that ‘air navigation services’ include ‘air traffic services; communication, navigation and surveillance services; meteorological services for air navigation; and aeronautical information services’. Article 2(30) of Regulation No 549/2004 defines ‘navigation services’ as ‘those facilities and services that provide aircraft with positioning and timing information’. Those navigation services are thus distinguished from ‘air traffic services’, defined in Article 2(11) of Regulation No 549/2004, which include, in particular, ‘air traffic control (ATC) service’, itself defined in Article 2(1) of that regulation as aimed at preventing collisions between aircraft and expediting and maintaining an orderly flow of air traffic. Both ‘navigation services’ and ‘air traffic services’ are, as previously stated, included in ‘air navigation services’. Equipment such as the Category III ILS, which gives runway positioning information to aircraft for the purposes of their landing, clearly falls within the scope of navigation services as referred to above. 113 Although recital 5 of Regulation No 550/2004, relied on by the applicant, seems to indicate that ‘air navigation services’ fall within the exercise of public authority, recital 13 of that regulation, which is more specific, expressly states that ‘navigation services’, like certain other air navigation services, must be organised under market conditions whilst taking into account the special features of such services and maintaining a high level of safety. It is clear from various provisions of that regulation that it is possible for the designation of air traffic service providers or meteorological service providers not to be based on market principles, but no provision of the same nature applies to navigation services. Therefore, in spite of its generally applicable nature, the recital relied on by the applicant fails to point to any specific provision which could lead to the conclusion that the Category III ILS, as navigation services equipment, falls within the exercise of public authority and does not form part of an economic activity exercised under market conditions. 114 Moreover, it is settled case-law that the preamble to an EU act has no binding legal force and cannot be validly relied on as a ground for derogating from the actual provisions of the act in question (see judgment of 2 April 2009, Tyson Parketthandel, C‑134/08, EU:C:2009:229, paragraph 16 and case-law cited) or, a fortiori, from the rules laid down in the FEU Treaty, such as from Articles 107 and 108 TFEU, concerning aid granted by States, in particular by limiting their scope by comparison with the scope deriving from the European Union judicature’s interpretation of their wording and purpose. 115 Lastly, the applicant refers to point 35 of the Guidelines, which states that, ‘at an airport, activities such as air traffic control, police, customs, firefighting, activities necessary to safeguard civil aviation against acts of unlawful interference and the investments relating to the infrastructure and equipment necessary to perform those activities are considered in general to be of a non-economic nature’. 116 However, apart from the fact that point 35 of the Guidelines does not refer to ground approach equipment or facilities, the applicant has not contradicted the Commission’s observation that the fact that equipment improves safety does not mean that it is necessary to classify that equipment as non-economic. 117 It follows that the Commission, in classifying the Category III ILS as a system of an economic nature, did not make the error of assessment relied on by the applicant. 118 Finally, the applicant’s argument that the Commission did not provide an adequate statement of the reasons why the Category III ILS system was of an economic nature must also be rejected. 119 It must be stated that, quite apart from the fact that, according to the Commission, it is clear from recital 367 of the contested decision that ‘ensuring ground traffic safety (including during landings and take-offs) forms an integral part of the airport’s commercial operation and is therefore economic in nature’, the applicant’s own presentation of the third plea adequately confirms that it fully understood the reasons why the Commission had considered that the Category III ILS should be regarded as being of an economic nature. Recital 367 of the contested decision therefore enabled the applicant to ascertain the reasons for the contested decision and enabled the General Court to exercise its power of review over them (see, to that effect, judgment of 13 January 2004, Thermenhotel Stoiser Franz and Others v Commission, T‑158/99, EU:T:2004:2, paragraph 94). 120 It follows from all the foregoing that the third plea must be rejected. The fourth plea in law, alleging an error of fact and a manifest error of assessment by the Commission in its finding that 7% of the cost of the investments made in the new terminal building corresponded to non-economic use, and a failure to state reasons for the finding of that percentage 121 By the fourth plea, the applicant complains that the Commission, first, committed an error of fact and a manifest error of assessment in its finding of the percentage of the cost of the investments made for the new terminal building which corresponded to non-economic use and, secondly, failed to state reasons for the finding of that percentage. 122 The applicant complains, in essence, that the Commission, as regards the new airport terminal, used an incorrect method of apportionment to distinguish non-economic activities from economic activities. The applicant therefore argues that it is clear from its communication to the Commission of 8 April 2014 that the apportionment is 14.9% for premises having a non-economic use and 85.1% for premises having an economic use. 123 The Commission contends that this plea should be rejected. 124 It should be recalled that the Commission made the following finding in recital 366 of the contested decision: ‘The Commission also considers as non-economic those costs associated with investments in and maintenance of buildings and equipment used for both economic activities and non-economic activities, in a proportion corresponding to their use for a non-economic activity. In particular, 7% of the cost of investments made in the new terminal may be regarded as non-economic in nature, because 7% of the terminal surface area is occupied by police and customs services, passenger and baggage search officials, and officials from the Walloon Public Service responsible for site safety.’ 125 First of all, it should be noted that, although, in the area of State aid, the Commission enjoys a broad discretion the exercise of which involves economic assessments which must be made in a European Union context, that does not imply that the European Union judicature must refrain from reviewing the Commission’s interpretation of economic data (judgment of 2 September 2010, Commission v Scott, C‑290/07 P, EU:C:2010:480, paragraph 64). 126 According to the case-law of the Court of Justice, not only must the European Union judicature, inter alia, establish 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 (judgment of 2 September 2010, Commission v Scott, C‑290/07 P, EU:C:2010:480, paragraph 65; see also, by analogy, judgment of 15 February 2005, Commission v Tetra Laval, C‑12/03 P, EU:C:2005:87, paragraph 39). 127 However, when conducting such a review, the European Union judicature must not substitute its own economic assessment for that of the Commission. The review by the European Union judicature 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 judgment of 2 September 2010, Commission v Scott, C‑290/07 P, EU:C:2010:480, paragraph 66 and case-law cited). In that regard, where, in order to determine whether a measure comes within the scope of Article 107(1) TFEU, the Commission must apply the private investor test, the application of that test requires the Commission to make a complex economic assessment (see, to that effect, judgment of 2 September 2010, Commission v Scott, C‑290/07 P, EU:C:2010:480, paragraph 68). 128 It is in the light of those criteria, relating to the scope of the review which, according to the case-law, the European Union judicature may carry out, that it is necessary to examine the fourth to seventh pleas in the application. 129 It is at this point necessary to point out that the applicant has not contradicted the Commission’s statement, in its defence, that the Kingdom of Belgium had on three occasions (by letters of 24 February, 21 March and 4 April 2014) informed the Commission that the cost of the non-economic investments in the new terminal amounted to 7% of the total cost of the investment made. 130 In the applicant’s communication to the Commission of 8 April 2014 explaining that 14.9% of the surface area of the new terminal was intended for non-economic purposes, the applicant added to the premises occupied exclusively by the Federal Police and other services carrying out public authority or security tasks — which the applicant described as premises intended for ‘public service tasks’ and which accounted for 7% of the surface area of the terminal — 7% of the surface area occupied by the technical installations, such as those used for the heating system, 7% of the surface area for everyday pedestrian traffic use, such as stairs and corridors, which it described as ‘common airport’ premises, and 100% of the surface area in which the general public or goods were subject to the public authority or security tasks referred to above, such as those relating to passport control, which it described as ‘common public’ premises. 131 In that regard, it must be stated that, although, as the applicant stated in reply to a question from the Court at the hearing, passengers use the corridors for the purpose, inter alia, of customs controls, public authority is exercised not in those corridors but only in the premises specially assigned to those controls. Moreover, areas of traffic and cafeterias cannot, as the Commission rightly pointed out at the hearing, be regarded as premises in which the powers of a public authority are exercised. 132 Accordingly, it is not apparent from the examination of the circumstances of the case why the methodology used by the applicant to determine a method of apportionment might be more appropriate than the method provided on three occasions (by letters of 24 February, 21 March and 4 April 2014) by the Kingdom of Belgium and which was accepted by the Commission. 133 It should be noted on that point that, contrary to the applicant’s claim at the hearing, the apportionment of 7% for premises having a non-economic use is not a vague or whimsical estimate by the Belgian Government, since, as is clear from the Belgian Government’s reply to the Commission’s questions of 11 March 2014, ‘the plans … were the basis for that calculation’. 134 At the hearing, the applicant also argued that Charleroi Airport was an ever-changing airport, unlike major airports such as Paris-Charles de Gaulle (France) or London-Heathrow (United Kingdom), whose passenger numbers have remained steady for 20 years, so that the proportion of the premises having a non-economic use was changing at Charleroi Airport. 135 However, even assuming that assertion to be true, it should be noted that the applicant has not been able to demonstrate that Charleroi Airport changed in the period between the three letters from the Belgian Government of 24 February, 21 March and 4 April 2014 and its own communication of 8 April 2014, that is to say four days after the last letter from the Belgian Government. 136 In those circumstances, it must be held that the Commission cannot be regarded as having committed an error of fact or a manifest error of assessment in finding, on the basis of the data which the Kingdom of Belgium itself supplied to the Commission, that 7% of the total surface area of the airport was intended for non-economic activities and in not referring to the communication of 8 April 2014 in the contested decision. 137 Lastly, as regards the alleged failure to state the reasons for the contested decision on that point, it should be noted that recital 366 of the contested decision clearly indicates the method of apportionment used by the Commission, which, as has been previously noted, was provided on three occasions by the Belgian Government. Moreover, even though the Commission did not refer to the applicant’s communication of 8 April 2014 in recital 366 of the contested decision, it should be noted, first, that it is clear from recital 22 of the contested decision that that decision expressly refers to the Belgian authorities’ note of 5 May 2014, which states that ‘14.9% of the surface area was used for non-economic public services as opposed to the premises used for economic activities’, and, secondly, that the Commission clearly stated the reasons why the data provided by the Kingdom of Belgium on three occasions (by letters of 24 February, 21 March and 4 April 2014) were to be accepted, which necessarily enabled the applicant to understand the reasons why its own data could not be accepted and enabled the Court to exercise its power of review. Indeed, by stating that ‘7% of the cost of investments made in the new terminal may be regarded as non-economic in nature, because 7% of the terminal surface area is occupied by police and customs services, passenger and baggage search officials, and officials from the Walloon Public Service responsible for site safety’, the Commission has, in essence, clearly stated that only the costs intrinsically and necessarily related to such services were non-economic in nature, which the applicant, moreover, fully understood, as is clear from the arguments which it put forward in support of this plea. 138 Therefore, the fourth plea must be rejected. The fifth plea in law, alleging an error of law, errors of fact, manifest errors of assessment and a failure to state reasons by the Commission in determining the net present values of the 2002 and 2003 measures, resulting in an infringement of Article 107(1) TFEU 139 By its fifth plea, the applicant disputes, in essence, the Commission’s application of the private investor test. According to the applicant, both the method and certain calculation factors used by the Commission are incorrect. This plea is divided into seven parts. 140 Before examining the various parts of the fifth plea, it is necessary at the outset to respond to the applicant’s complaint that the 2001 study entitled ‘Risk Premiums for Other Markets’ was not accessible at the internet address referred to by the Commission. 141 In that regard, it is sufficient to note that, apart from the fact that that study was in any event referred to in the footnote to recital 437 of the contested decision, the fact that the corresponding internet address referred to by the Commission was not accessible does not mean that the contested decision can, in the present case, be regarded as inadequately reasoned on that point. – The first part, concerning the calculation of the costs of the investments remaining to be made as at 15 April 2002 142 Table 13, entitled ‘Cost of the investments remaining to be made as at 15 April 2002 (EUR million)’, is set out in recital 431 of the contested decision. That table contains the following rows: 2002 2003 2004 2002-2004 Renovation of technical and administrative premises 1.55 0.00 0.00 1.78 Extension of aviation fuel station 0.27 0.00 0.00 0.62 Cemetery car park 0.030 0.00 0.00 0.05 143 The applicant submits that the last column of the table referred to in paragraph 142 above contains errors. 144 In the defence, the Commission acknowledged that certain numerical data contained in that table were incorrect. It states, however, that, with the exception of the errors referred to by the applicant, the amounts carried over year by year and the totals in Table 13 are correct. The net present value of the 2002 measure was calculated on the basis of Table 14, entitled ‘Cost of the investments in economic activities taken into account by the Commission in calculating the net present value of the 2002 measure’, which contains the correct numerical data. Accordingly, in the Commission’s view, the inaccuracies in Table 13 had no effect on the total investments reproduced in Table 13 and, therefore, on the calculation of the present value. 145 In its corrigendum, the Commission rectified the numerical data concerned (1.78> 1.55, 0.62> 0.27 and 0.05> 0.03). 146 Although such errors are regrettable, it must be pointed out that the applicant does not dispute that the errors concerned had no effect on the calculation of the net present value of the 2002 measure, according to the method and the values used by the Commission. When questioned by the Court on that point at the hearing, the applicant was unable to indicate any effect which those errors might have had on the calculation of the net present value of the 2002 measure. 147 It follows that the first part of the fifth plea is ineffective and must therefore be rejected. – The second part, relating to the method of calculating the net present values 148 According to the applicant, the Commission made errors when calculating the net present value of the cash flows at the discount rate of 9% and the net present value of the 2002 measure. 149 Whereas, for the 2002 measure, the Commission, in recital 438 of the contested decision, arrived at a net present value of EUR – 76.48 million for the cash flows at the discount rate of 9% and at a net present value of EUR – 75 million for the 2002 measure, the experts appointed by the applicant arrived at a net present value of EUR [confidential] (1) million for the cash flows at the same discount rate and at a net present value of EUR [confidential] million for that measure. 150 In the defence, the Commission acknowledged that the amount of EUR – 83.70 million was correct and that the net present value amounted to EUR [confidential] million. The difference between the amounts of EUR [confidential] million and EUR [confidential] million was the result of two factual errors which the applicant had not contested. 151 It must be borne in mind that, in recitals 437 to 439 of the contested decision, the Commission made the following findings: ‘(437) As explained in recital 424, in order to determine the discount rate, the Commission has estimated the weighted average cost of capital for Sowaer at the time when the measure was granted. This estimate has been produced using the following figures and assumptions: – a debt/equity ratio of 30% for Sowaer and therefore a proportion of debt financing (rD) of 23%; – a pre-tax cost of debt (kD) equal to the weighted average pre-tax cost of debt for Sowaer in 2002, i.e. between 4.9% and 5.5%; – a risk premium (Δk) of 5.51%; – a beta between 0.91 and 1.23; – with regard to the cost of equity, a pre-tax cost of capital invested without risk (rf) between 5.16% and 5.37%; – a tax rate (t) of 40.2%. Based on these figures and assumptions, the Commission can calculate the weighted average cost of capital (C) using the following conventional formula: C = (1 – rD) * kE + rD * kD Where the cost of capital (kE) is given by the capital asset pricing model (CAPM) according to the formula: kE = rf + β * Δk Based on this formula and the above assumptions, the Commission estimates that a discount rate of 9% is reasonable. … (438) The net cash flows indicated in Table 19 discounted at the rate of 9% result in a net present value of EUR – 83.7 million. (439) In order to calculate the net present value over the entire term of the concession, a terminal value needs to be allocated to the project in 2015. This is carried out by assuming, from 2015, a cash flow equal to the average cash flow for 2013-2015 increasing by 2% per year. If it is assumed that the cap on the variable part of the concession fee will be removed from 2016, the values to be taken into account are the cap-free cash flows in 2013-2015. Based on these assumptions, the Commission has calculated that the terminal value of the project in 2015 could be put at EUR 8.07 million.’ 152 It is common ground that, by its corrigendum, the Commission replaced, in recital 438 of the contested decision, ‘– 76.48’ with ‘– 83.7’, in recital 439 of that decision, ‘1.48’ with ‘8.07’ and, in recital 440 of that decision, ‘75’ with ‘75.63’. 153 Notwithstanding the errors made, it must be pointed out that the applicant does not dispute the Commission’s assertion that the corrected numerical data were less favourable to the applicant than those which appeared in the contested decision and nor did the applicant dispute the Commission’s observation that the positive net cash flows forecast for the years 2007 to 2009 were clearly insufficient to counter the negative flows of the other years, and in particular the investments of 2002 and 2003, which had led the Commission to conclude that no private investor would have made the investments at issue. 154 Next, the applicant claims that its own consultants had obtained values which were very different from those of the Commission when attempting to apply the same formula and had proposed alternative formulae which are generally used in the financial sector, thus showing that the Commission’s analysis was open to criticism. 155 In that regard, the mere fact that the applicant’s consultant obtained different results using the same formula or using a different formula is not sufficient to conclude that the formula which the Commission chose to use to calculate the weighted average cost of capital for Sowaer at the time when the measure was granted is manifestly erroneous (see, to that effect, judgment of 2 September 2010, Commission v Scott, C‑290/07 P, EU:C:2010:480, paragraph 72). 156 The applicant’s argument that the information provided by the Commission concerning the formula lacks precision is ineffective, since the Commission acknowledged that the calculations of the applicant’s consultant were correct. 157 The applicant also complains that the Commission failed to state, or stated very inadequately, the reasons for choosing the formula for calculating the weighted average cost of capital for Sowaer at the time when the measure was granted as well as the factors and the values used, and failed to support the data at issue with reports from independent consultants or experts. 158 In that regard, it should be noted that it is not apparent either from the basic regulation, namely Regulation No 659/1999, or from the case-law cited by the applicant that the Commission is required to consult independent experts in order to determine the method to be used or to check its calculations and have them validated (see, to that effect, judgments of 25 June 1998, British Airways and Others v Commission, T‑371/94 and T‑394/94, EU:T:1998:140, paragraph 72; of 16 March 2000, Astilleros Zamacona v Commission, T‑72/98, EU:T:2000:79, paragraph 55; and of 16 March 2016, Frucona Košice v Commission, T‑103/14, EU:T:2016:152, paragraph 177). 159 As regards the complaint that inadequate reasons were given for the contested decision, it should be noted that the formula for calculating the net present value of the 2002 measure and the data used were reproduced in recital 437 of the contested decision and that, on the basis of that information, the applicant’s consultant was able to determine the errors made by the Commission in the application of that formula, which were subsequently corrected along the lines indicated by the applicant. It follows that the applicant cannot complain of a failure to state reasons in the contested decision. 160 Although the errors made by the Commission in recitals 438 to 440 to the contested decision are regrettable and made more complicated the preparation of the applicant’s defence and the Court’s review of the contested decision, it must nevertheless be held that it does not appear that the corrected numerical data are such as to invalidate the Commission’s conclusion that, in the present case, the market economy operator test had not been satisfied. 161 Furthermore, in so far as the applicant states that it also applied the same formula as the Commission, but with different parameter values, this issue will actually be examined in the context of the examination of the following parts of the present plea, which specifically call into question the values of those parameters which were used by the Commission. 162 Therefore, the second part of the fifth plea must be rejected. – The third part, relating to the beta factor 163 The applicant complains that the Commission made an error of fact and a manifest error of assessment, in that the definition of the beta factor is incorrect. In the applicant’s view, the beta factor measures not the ‘relative cost-effectiveness of an asset compared to the market’ but the ‘relative volatility of an asset compared to the market’. It adds that the beta values do not correspond to the values identified by its own consultant. According to the applicant, those approximations and inaccuracies had an impact on the calculation of the net present value of the 2002 and 2003 measures, since the beta factor was included in the calculation of the cost of capital. 164 In that regard, it is sufficient to point out that, even assuming that the Commission’s definition of the beta factor is not correct, it does not appear that that error affected the calculations of the cost of capital and consequently could have influenced the Commission’s conclusion that a private investor in a market economy would not have made the investments at issue. Moreover, the mere fact that the applicant’s consultant identified other values for the beta factor is not sufficient to establish that a manifest error of assessment was made by the Commission in the choice of that factor. 165 The applicant’s argument that it was not in a position to verify the accuracy of the data and the definition of the beta factor adopted by the Commission must be rejected, since the parties agree that it is clear from the documents before the Court that the applicant was in a position to verify the data and to rely on any error made, on the basis of the tables submitted in the administrative procedure. 166 It follows from the foregoing that the third part of the fifth plea must be rejected. – The fourth part, concerning the tax rate used to calculate the net present value of the 2003 measure 167 According to the applicant, the Commission made, on the one hand, an error of fact, in taking a tax rate of 40.2% as a reference in order to assess the net present value of the 2003 measure, even though that rate was lowered to 33.99% as from 1 January 2003, and, on the other hand, a manifest error of assessment, in basing its calculation on that erroneous value. 168 In its defence, the Commission acknowledged that the tax rate of 40.2% for 2003 was incorrect, so that the range of the beta factor for that year was between 0.91 and 1.25, rather than 0.91 and 1.23. 169 It must be held that this part must be rejected, since, in the present case, it does not appear that the error in the tax rate for 2003 could have affected the Commission’s conclusion that a private investor in a market economy would not have made the investments at issue. – The fifth part, concerning the estimate of the pre-tax cost of capital invested without risk used to calculate the net present value 170 According to the applicant, in order to determine the net present value for 2002, the Commission made a manifest error of assessment by referring to the interest rate on Belgian 10-year bonds in order to estimate the pre-tax cost of capital invested without risk. According to the applicant, Sowaer could also have referred to the interest rate on German 10-year bonds at the end of 2002. Moreover, with respect to the 2003 measure, the Commission took into account not the relevant rate for April 2003, but a rate corresponding to April 2002. 171 In that regard, it should be noted that the applicant does not indicate to what extent the reference to the interest rate on German 10-year bonds could have altered the Commission’s conclusion that a private investor in a market economy would not have made the investments at issue, that is to say to what extent the change in the point of reference could have resulted in a positive net present value. In fact, it has not indicated what the level of the net present value would have been in that scenario, as compared with the figures of EUR – 83.7 million in recital 438 of the contested decision or EUR – 75.63 million after calculating the total duration of the concession (until 2040) in recital 440 of that decision. 172 Finally, contrary to what the applicant claims, the Commission estimated the pre-tax cost of capital invested without risk on the basis of the interest rate for Belgian 10-year bonds in April 2003. 173 In the reply, the applicant complains that the Commission failed to take into account the deductibility of investment depreciation and interest, whereas the impact of those tax advantages on corporate profits and the profitability of the investments is essential. 174 In that regard, it is sufficient to point out that, by that reasoning, the applicant is actually relying on a new plea which is neither expressly nor even implicitly raised in the application, so that it must be declared inadmissible. 175 For the sake of completeness, it must be pointed out that the applicant has not disputed the Commission’s arguments that the alternative method proposed in order to take into account tax considerations was not appropriate in a context of net structural losses and it would not be more favourable to the applicant than the method used by the Commission. 176 It follows from the foregoing that the fifth part of the fifth plea must be rejected. – The sixth part, concerning the estimate of the debt-to-equity ratio and the proportion of debt financing used to calculate the net present value 177 According to the applicant, the Commission made errors in assessing Sowaer’s debt-to-equity ratio at 30% on the basis of an ex post analysis based on the 2002 balance sheet. By carrying out an ex post analysis, the Commission failed to respect the principle that the assessment of compliance with the private investor test must be made ex ante. Next, the applicant’s consultant obtained different numerical data. Lastly, the applicant states that Sowaer is neither an airline nor an airport and that the Commission wrongly made a comparison using the debt-to-equity ratio of airlines. 178 As regards the criticism that it carried out an ex post analysis, the Commission explained, without being contradicted by the applicant, that the balance sheet for 2001, had it existed, would have been too old to provide a good indication of the target ratio as determined on 15 April 2002, that is to say from an ex ante perspective, and that, since Sowaer was formed on 28 June 2001, its first fiscal year extended over a period of 18 months corresponding to the balance sheet for the year 2002. It follows that the applicant cannot criticise the Commission for having made a manifest error of assessment in carrying out the analysis on the basis of the balance sheet for the year 2002. 179 The mere fact that the applicant’s consultant obtained a different debt-to-equity ratio is not sufficient to establish that the Commission made a manifest error of assessment. Moreover, in the rejoinder, the Commission, without being contradicted by the applicant, specified the differences between its own numerical data and those of the applicant’s consultant, which are explained by the fact that the Commission excluded non-financial debts from its calculation, which is justified for an investment of that type. 180 Lastly, the applicant’s argument that Sowaer does not belong to the aviation sector is ineffective, in so far as the Commission did not use the average debt-to-equity ratio of airlines to calculate the net present value of the investments at issue, but used Sowaer’s actual debt-to-equity ratio. The information, in footnote 163 of the contested decision, concerning the average debt-to-equity ratio of airlines is given only as a point of comparison, which does not affect the calculation in question. 181 In the reply, the applicant criticises the Commission for having chosen the period 2002-2010 to determine a debt-to-equity ratio. According to the applicant, that period is far too short. 182 In that regard, it is sufficient to note that the applicant has not effectively contradicted the Commission’s argument that that period was the only one for which numerical data were available. 183 It follows from all the foregoing that the sixth part of the fifth plea must be rejected. – The seventh part, relating to the estimate of the risk premium used to calculate the net present value 184 According to the applicant, the assessment of the risk premium at 5.51% is incorrect. In the applicant’s view, the Commission actually took into account a single value observed on the American market, while a detailed and publicly available study exists for the Belgian market. Consequently, the calculations made using that specific figure are not reliable. 185 That complaint cannot be accepted. 186 The Commission, without being contradicted by the applicant, has argued that, in spite of the Commission’s requests, the applicant submitted no other estimate during the administrative procedure. 187 Moreover, in that the applicant complains that the Commission failed to give reasons for the contested decision on that point, it must be noted that the Commission set out, in recital 437 of the contested decision, the basis for the risk premium of 5.51%, namely the study referred to in paragraph 140 above (see footnote 164 of the contested decision). 188 It follows from all the foregoing that the seventh part of the fifth plea must be rejected as well as the fifth plea in its entirety. The sixth plea in law, alleging an error of law, errors of fact and manifest errors of assessment by the Commission in determining the net present values of the 2002 and 2003 measures and, accordingly, in calculating the additional fee to be paid by the applicant from 4 April 2014 189 By its sixth plea, the applicant criticises the consequences of the errors of fact, the error of law and the manifest errors of assessment by the Commission in determining the net present values of the 2002 and 2003 measures for the purpose of calculating the additional fee to be paid by the applicant to Sowaer from 4 April 2014. Given that, according to the contested decision, the difference between the fee consistent with market prices and the fee to be paid by the applicant constitutes aid to be recovered, the errors noted have a significant influence on the amount of aid to be recovered. 190 In that regard, it is sufficient to note that this plea is based solely on the premiss that the fifth plea is well founded. 191 Since the fifth plea has been rejected, it is also necessary to reject the sixth plea. The seventh plea in law, alleging a failure to state reasons and an error of law by the Commission in determining the amount of the additional fee to be paid from 1 January 2016 192 By its seventh plea, the applicant complains that the Commission failed to provide a response to its request for clarification dated 17 November 2014, concerning the calculation of the amount of the additional fee which it had to pay in order to comply with market prices from 1 January 2016. According to the applicant, it is of primary importance and reasonable to ascertain the precise amount of the aid claimed, which would take the form of an exact determination of the additional concession fee. A fortiori, nor was it possible to confer on the Kingdom of Belgium, the addressee of the contested decision, the power to determine, on a discretionary basis, the amount of aid which was declared incompatible. 193 In that regard, it must be pointed out that, if, by this plea, the applicant seeks to criticise the absence, in the contested decision, of the exact amount of the aid to be recovered, it is sufficient to observe that no provision of EU law requires the Commission, when ordering the recovery of aid declared incompatible with the internal market, to fix the exact amount of the aid to be recovered. It is sufficient for the Commission’s decision to include information enabling the recipient to work out himself, without overmuch difficulty, that amount. The Commission may, therefore, legitimately confine itself to declaring that there is an obligation to repay the aid in question and leave it to the national authorities to calculate the exact amount of aid to be repaid (see, to that effect, judgments of 12 October 2000, Spain v Commission, C‑480/98, EU:C:2000:559, paragraphs 25 and 26, and of 28 July 2011, Mediaset v Commission, C‑403/10 P, not published, EU:C:2011:533, paragraphs 126 and 127). 194 Furthermore, in so far as the applicant raises the question of the level of the fee it should pay, it must be stated that the Commission, in recital 686 of the contested decision, defined the method to be followed in order to determine the amount of aid to be recovered. 195 Consequently, the seventh plea must be rejected. The eighth plea in law, alleging an error of law, an error of fact, a manifest error of assessment and a failure to state reasons by the Commission in its analysis of the market at issue and of the alleged distortions of competition between Charleroi Airport and Brussels-National Airport caused by the aid 196 By its eighth plea, the applicant criticises the finding, in recital 605 of the contested decision, that the aid significantly distorted competition by affecting the growth in the number of passengers at Brussels-National Airport in the short- and medium-haul ‘point-to-point’ segment. In making that finding, the Commission made an error of law and a manifest error of assessment and failed to state reasons. 197 This plea is divided into two parts. 198 By the first part, the applicant complains that the Commission failed properly to analyse the relevant market. First, as regards the partial substitutability of the offers of Brussels-National Airport and Charleroi Airport, the applicant complains that the Commission referred only to the information provided by Brussels Airport, which is none other than the managing authority of Brussels-National Airport, and not that provided by the Walloon Region, in particular in its reply to the Commission’s request for information of 14 January 2014. The applicant also complains that the Commission took into account only information subsequent to 2004, thus disregarding ‘the disastrous period corresponding to the bankruptcy of Société anonyme belge d’exploitation de la navigation aérienne (Sabena), which occurred on 7 November 2001’. 199 Moreover, the applicant also argues that the Commission only considered the substitutability of the offers on the basis of the geographical situation of the two airports concerned and did not carry out an analysis relating to flight destinations. It recalls the case-law according to which, in air transport matters, the substitutability of offers must be verified by a ‘point-to-point’ analysis. Furthermore, the Commission did not examine the characteristics of the potential customers at each of the airports in order to determine whether the offers were substitutable. According to the applicant, it follows that the Commission could not lawfully conclude that the offers of the two airports were substitutable and therefore alike. 200 By the second part, the applicant complains that the Commission erred in concluding that the aid had distorted competition between Brussels-National Airport and Charleroi Airport, in particular as regards the growth, presumed to be lower, in the number of passengers at Brussels-National Airport. Moreover, while recognising that there was competition between at least five airports, the Commission merely took into account competition with Brussels-National Airport. However, the Commission should have examined the situation for each of the five airports in order to check whether the alleged effects on Brussels-National Airport were isolated or whether those effects were also borne by the other airports in the catchment area, so as to ensure that the changes in passenger numbers at Brussels-National Airport were not due to competition by one of the other airports in the same area. Indeed, changes in the growth of passenger numbers at Brussels-National Airport are explained primarily by the ‘failure of Sabena’ and the unsatisfactory ‘business plan’ of Brussels-National Airport. 201 The applicant adds in the reply that the Commission has not demonstrated that there was a causal link between the measures at issue and, first, the increase in traffic at Charleroi Airport, secondly, the reduction in traffic at Brussels-National Airport and, thirdly, the increase in traffic at Charleroi Airport and by the reduction in traffic at Brussels-National Airport. According to the applicant, the increase at Charleroi Airport does not, or at least does not only, stem from the measures at issue, but from its choice of a relevant and promising business plan, whereas the stagnation in short-haul traffic at Brussels-National Airport is explained by the choice of a conservative business plan as well as by the failure of Sabena in 2001. 202 The Commission contends that this plea should be rejected. 203 The two parts of the plea put forward by the applicant must be examined together. 204 As regards the origin of the information on the basis of which the Commission concluded that the offers were partially substitutable, it must be stated that it is apparent from recital 624 of the contested decision that the details given by the Commission in recitals 625 and 626 of the contested decision were supplied by the Kingdom of Belgium. Admittedly, the Commission indicated that the numerical data contained in the reply of 7 February 2014 corresponded to those sent by Brussels Airport. However, it does not appear that, taking into account the information provided by Brussels Airport, the Commission made a manifest error of assessment. 205 As regards the applicant’s argument that the Commission satisfied itself with taking into consideration only information relating to the state of the market after 2004, thus disregarding the effects of the failure of Sabena in 2001, it is sufficient to note that the applicant has not disputed the Commission’s argument that it was precisely in order to avoid presenting changes in traffic resulting from the failure of Sabena that it had presented the changes from 2004 onwards. 206 As regards the argument that the failure of Sabena contributed to reducing traffic at Brussels-National Airport, it is sufficient to point out that it is ineffective. 207 Indeed, the mere fact of having enjoyed an advantage from which the applicant’s competitors were excluded is sufficient to conclude that its competitive position was strengthened and that competition was therefore distorted. For the same reasons, the applicant’s claim that the difference between the growth of Brussels-National Airport and the growth of Charleroi Airport is explained by the development plan chosen by the latter airport cannot succeed. 208 As regards, on the one hand, the substitutability of the offers of Brussels-National Airport and Charleroi Airport and, on the other hand, the distortions of competition due to the aid received by the applicant, it should first be noted that it is apparent from settled case-law that, for the purpose of classifying a State measure, the Commission is not required to establish the existence of a real impact of the aid on trade between Member States and an actual distortion of competition, but is required only to examine whether that aid is capable of affecting such trade and distorting competition (see judgment of 12 December 2014, Banco Privado Português and Massa Insolvente do Banco Privado Português v Commission, T‑487/11, EU:T:2014:1077, paragraph 62 and case-law cited). 209 Accordingly, in the present case, the Commission was not required to demonstrate that there was a causal relationship between the increase and the decline in traffic at the two airports concerned and the aid at issue. The fact that the competitive situation of those airports could also have been influenced by factors other than the aid at issue does not preclude the conclusion that that aid was likely to affect trade and to distort competition as provided for in Article 107(1) TFEU. 210 It is also clear from settled case-law that, in the context of that examination, the Commission is not required to carry out an economic analysis of the actual situation on the relevant markets, of the market share of the undertakings in receipt of the aid, of the position of competing undertakings or of trade flows between Member States. Furthermore, in the case of aid granted illegally, as the applicant acknowledged at the hearing, the Commission is not required to demonstrate the actual effect which that aid has had on competition and on trade between Member States. If that were the case, such a requirement would ultimately give Member States which grant unlawful aid an advantage over those which notify the aid at the planning stage (see judgment of 28 October 2015, Hammar Nordic Plugg v Commission, T‑253/12, EU:T:2015:811, paragraph 130 (not published) and case-law cited). 211 It follows that, in the present case, the applicant cannot, in order to conclude that there was a distortion of competition as a result of the aid at issue, claim that the Commission was required to define the market for the services and the geographical market at issue and to establish the existence of a causal link between the aid received by the applicant and the actual effects of that aid on the traffic at the airports concerned. In that regard, it must be borne in mind that the finding of the existence of a selective economic advantage in favour of the applicant, which is not disputed in the present case, is sufficient to establish a risk of the distortion of competition within the meaning of Article 107(1) TFEU (see, to that effect, judgment of 16 September 2013, British Telecommunications and BT Pension Scheme Trustees v Commission, T‑226/09 and T‑230/09, not published, EU:T:2013:466, paragraph 168). Moreover, the capacity of aid to strengthen the recipient’s competitive position is assessed by reference to the advantage given to the recipient, and it is unnecessary to take account of the operating results of its competitors (see, to that effect, judgment of 28 January 1999, BAI v Commission, T‑14/96, EU:T:1999:12, paragraph 78). 212 Finally, even supposing that the Commission should have analysed the effects of the aid at issue on all the airports in the applicant’s catchment area, it does not appear that such an analysis could have resulted in a more favourable outcome than that which the Commission reached in the contested decision. 213 It follows from all the foregoing that the eighth plea must be rejected. The ninth plea in law, alleging infringement of the principle of the protection of legitimate expectations 214 According to the applicant, the Commission erred in law in failing to verify all the criteria for assessing the principle of the protection of legitimate expectations. First of all, it observes that the Commission, by its declarations in Decision 2004/393, its inaction of more than 10 years and its previous practice, created a legitimate expectation on the part of the applicant as to the lawfulness of the aid at issue or, at the very least, as to the impossibility of ordering its recovery. Next, the applicant argues that it could not reasonably anticipate the change to the Commission’s pattern of conduct, since the subject matter of the review procedure for the measures in favour of Ryanair was so different from that of the present case and the Court made no reference to the potential unlawfulness of the measures granted to it; and the applicant adds that the Commission had opened the examination procedure in relation to it almost three and a half years earlier. Finally, the applicant observes that, in the present case, the general interest of the European Union does not prevent non-recovery of the aid at issue, since the Commission has failed to show that that general interest was sufficient to override the applicant’s own interests. 215 The Commission contends that this plea should be rejected. 216 It is apparent from settled case-law that, first, undertakings to which aid has been granted may not, in principle, entertain a legitimate expectation that the aid is lawful unless it has been granted in compliance with the procedure laid down in Article 108 TFEU and, secondly, a diligent economic operator should normally be able to determine whether that procedure has been followed. In particular, where aid is implemented without prior notification to the Commission, so that it is unlawful under Article 108(3) TFEU, the recipient of the aid cannot have at that time a legitimate expectation that its grant is lawful (see judgment of 19 March 2015, OTP Bank, C‑672/13, EU:C:2015:185, paragraph 77 and case-law cited). 217 Moreover, although recipients of unlawful aid are not to be precluded from relying on exceptional circumstances on the basis of which they had legitimately assumed that aid to be lawful, legitimate expectations on the part of the recipient will be recognised in such a case, however, only if the aid has been granted in compliance with the procedure laid down in Article 108 TFEU (judgment of 27 January 1998, Ladbroke Racing v Commission, T‑67/94, EU:T:1998:7, paragraph 182). 218 In the present case, it is common ground that the aid at issue was not notified to the Commission in accordance with Article 108(3) TFEU and that the aid whose recovery is sought was granted after the judgment of 12 December 2000, Aéroports de Paris v Commission (T‑128/98, EU:T:2000:290), in which it was held that the management of an airport was in principle an economic activity. 219 Accordingly, the applicant cannot rely on the fact that, in ordering the recovery of the aid at issue, the Commission infringed the principle of the protection of legitimate expectations. 220 Consequently, the ninth plea must be rejected and the action dismissed in its entirety. The statement of modification 221 It should be recalled that, on 5 April 2016, the Commission notified the Kingdom of Belgium of a corrigendum to the contested decision, stating that the errors found in that decision in no way affected the conclusions which were set out in the contested decision. 222 On 23 June 2016, the applicant lodged a statement of modification on the basis of the corrections made by the Commission to the contested decision by means of the corrigendum of 5 April 2016. 223 The Commission argues that the statement of modification is inadmissible. 224 It must be pointed out that the statement of modification contains no new information and confines itself to repeating the arguments contained in the application and in the reply in a more direct manner, alleging that the Commission made numerous serious and substantial errors, even though, in reality, the corrigendum involves only stylistic and grammatical amendments as well as changes to certain calculations. 225 Moreover, even though the incorrect numerical data in the contested decision may have made it more difficult for that decision to be understood, in particular by the applicant, those errors cannot, however, call into question the lawfulness of the contested decision. 226 It follows that, in so far as the examination of the contested decision did not call into question the lawfulness of the contested decision and lead to the dismissal of the action, the question of the admissibility of the statement of modification has necessarily become devoid of purpose. Costs 227 According to Article 135(1) of the Rules of Procedure, if equity so requires, the Court may decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing his own costs, or even that he is not to be ordered to pay any costs. Under Article 135(2) of the Rules of Procedure, the Court may order a party, even if successful, to pay some or all of the costs, if this appears justified by the conduct of that party, including before the proceedings were brought, especially if he has made the opposite party incur costs which the Court holds to be unreasonable or vexatious. 228 In the circumstances of the present case, the Court considers that, as follows from the foregoing considerations, the Commission made numerous clerical errors which may have led the applicant to believe that it was justified in challenging the validity of the contested decision and which made it more difficult for the Court to review the contested decision. 229 In those circumstances, the present proceedings may be regarded as having been occasioned in part by the Commission’s conduct, in that the Commission could, by the errors made, have led the applicant to have understandable uncertainties as to the lawfulness of the contested decision. 230 Such circumstances constitute a ground justifying a sharing between the Commission and the applicant of the costs incurred in the proceedings. 231 The Court considers that a fair assessment of the circumstances of the case requires that the Commission be ordered to pay, in addition to its own costs, half of the costs incurred by the applicant. 232 Moreover, pursuant to Article 138(3) of the Rules of Procedure, the interveners are to be ordered to bear their own costs. On those grounds, THE GENERAL COURT (Eighth Chamber, Extended Composition) hereby: 1. Dismisses the action; 2. Orders the European Commission to bear its own costs and to pay half of the costs incurred by Brussels South Charleroi Airport (BSCA); 3. Orders the Société wallonne des aéroports SA (Sowaer), Brussels Airport Company SA and Brussels Airlines SA/NV to bear their own costs. Labucka Kancheva Madise Barents Passer Delivered in open court in Luxembourg on 25 January 2018. [Signatures] * Language of the case: French. 1 Confidential information omitted.