Judgment;Abstract — ECLI:EU:T:2020:180
Date: 2020-05-13
Language of the case: English
Court formation: First Chamber, Extended Composition
Subject matter: State aids;Competition
Procedure: Action for annulment - unfounded
Origin: Spain

summary of the pleas in law relied on. It is apparent from the case-law that that summary must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to exercise its power of review. It is therefore necessary for the basic legal and factual particulars on which a case is based to be indicated coherently and intelligibly in the application itself. The application must accordingly specify the nature of the grounds on which the action is based, so that a mere abstract statement of the grounds does not satisfy the requirements of the Rules of Procedure (see judgments of 14 February 2012, Italy v Commission, T‑267/06, not published, EU:T:2012:69, paragraph 35 and the case-law cited, and of 13 June 2019, Strabag Belgium v Parliament, T‑299/18, not published, EU:T:2019:411, paragraph 127 and the case-law cited). 230 In the present case, it must be held that the applicant has in no way substantiated the fourth plea on which it relies and which is the subject of only a single paragraph in the application. 231 Accordingly, the plea must be rejected as inadmissible, it being stressed, for the sake of completeness, that, contrary to what the applicant maintains, the Commission carried out a sufficiently detailed assessment of whether the market economy operator principle ought to be applied to the aid scheme at issue. E. Fifth plea: failure to state reasons and contradictory reasoning 232 By the fifth plea, the applicant claims that the contested decision is vitiated by a failure to state reasons in several respects and by contradictory reasoning. 233 The Commission contends that the plea should be rejected as unfounded, highlighting that, in the contested decision, it complied with the requirements of the case-law relating to the obligation to state reasons. In fact, many of the applicant’s complaints in respect of breach of the obligation to state reasons relate more to the substance of the decision as regards various aspects relied on under the preceding pleas. 234 According to settled case-law, the statement of reasons for an act must be appropriate to it and must disclose in clear and unequivocal fashion the reasoning followed by the institution which adopted the act in question in such a way as to enable, first, the persons concerned to understand its basis and, if appropriate, to challenge its validity before the Court and, second, the Court to ascertain whether it is well founded, without it, however, being necessary for the institution to go into all the relevant facts and points of law, since the question whether the statement of reasons satisfies Article 296 TFEU is assessed taking into account both the wording of that act and its legal and factual context (see, to that effect, judgments of 15 July 2004, Spain v Commission, C‑501/00, EU:C:2004:438, paragraph 73, and of 14 December 2005, Regione autonoma della Sardegna v Commission, T‑200/04, not published, EU:T:2005:460, paragraph 63 and the case-law cited). 235 Moreover, in a plea based on a failure to state reasons or a lack of adequate reasons, objections and arguments which aim to challenge the merits of the contested decision are misplaced and irrelevant (see judgment of 15 June 2005, Corsica Ferries France v Commission, T‑349/03, EU:T:2005:221, paragraph 59 and the case-law cited). 236 In the present case, contrary to what the applicant claims, the Commission addressed in detail the question of whether there was an economic advantage, in recitals 362 to 388 of the contested decision. 237 As regards whether the measure was selective, it is true that only one recital of the contested decision, namely recital 389, was given over by the Commission to the question of whether that condition, referred to in Article 107(1) TFEU, was fulfilled. However, contrary to what the applicant maintains, such reasons are in themselves sufficient in terms of the Commission’s obligation to state reasons (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), in particular because the applicant was entirely capable of ascertaining the Commission’s reasoning and challenging it under the third part of the first plea. 238 That is also the case for the examination of the existence of distortion of competition, which is the subject of recitals 390 to 392 of the contested decision. 239 As to the applicability of the de minimis threshold laid down for SGEIs, inter alia by Regulation No 360/2012, the Commission was not required to address that question, since, in recitals 379 and 411, it had stated, while providing, contrary to what the applicant claims, the necessary reasoning on that point, that the applicant had not been entrusted with an SGEI under the first condition for the application of Article 106 TFEU and the case-law resulting from the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415). 240 As regards the claim that the applicant’s legitimate expectations concerning the recovery of the allegedly unlawful aid were not taken into account, it must be pointed out that the Commission was not required to address that question, since, first, the applicant had not submitted comments during the administrative procedure and therefore had not raised that question and that, second, the Commission was assessing an unlawful aid scheme, implemented before it had ruled on its compatibility with the internal market. In accordance with the case-law recalled above in rejecting the third plea, owing to the unlawfulness of the aid scheme at issue, the beneficiaries could not in any event rely on a legitimate expectation. 241 As regards whether the market economy investor test applies, contrary to what the applicant claims, that question has been examined. Indeed, in recitals 380 to 387 of the contested decision, the Commission clearly explained the grounds upon which it held that the market economy operator principle, including the private investor test, did not apply and accordingly took the view that the applicant had received an economic advantage. In those recitals, it inter alia explained the reasons why, in its view, no tender procedure had been followed with a view to the grant, by the airport operators, of the service contracts to the airlines. As the Commission highlights, it could be inferred from that finding that the prices paid by the airport operators to the airlines for the marketing services were not market prices. Similarly, and contrary to what the applicant claims, the Commission did explain, in particular in recital 382 of the contested decision, why it took the view that, in adopting the aid scheme at issue, the Autonomous Region could not have expected a return comparable to that expected by a private investor. 242 As regards the question of whether the services provided met the Autonomous Region’s genuine needs, the Commission explained, in recitals 386 and 387 of the contested decision, the reasons why the aid scheme at issue did not fulfil genuine needs of the Autonomous Region, even if, in so doing, it reached an incorrect conclusion, noted by the Court in its examination of the second part of the first plea. Similarly, the Commission explained, inter alia in Section 7.2.1.3 of the contested decision, why it took the view that the payments made to the airlines could not be regarded as true consideration for the marketing services, since, according to the Commission, those market services sought above all to promote the airlines’ air routes. 243 As regards the scope of the penalty clauses inserted into the contracts concluded with the airport operators, the Commission took the view, in recital 359 of the contested decision, that the monitoring mechanism put in place, as described in Section 2.7.3 of that decision and which included, in recital 80 thereof, the imposition of penalties on the airlines by the airport operators, ensured compliance with the obligations imposed by the Autonomous Region on the airport operators. Since the Commission took the view that that mechanism, including the penalty clauses inserted by the airport operators in order to comply with Regional Decision No 29/36, contributed to imputing the contractual behaviour of the airport operators to the Autonomous Region, it did not have to assess that question again when it examined whether the market economy operator principle applied, particularly at the level of the operators of Cagliari-Elmas and Olbia airports, since those airport operators were not owned by the Autonomous Region. 244 As regards whether the aid scheme at issue could be declared compatible with the internal market under Article 107(3)(c) TFEU, the Commission did not have to examine that on its own initiative as the Italian Republic had not intended to justify the aid scheme at issue on the basis of the derogation laid down in that provision. 245 As to whether the aid scheme at issue constituted an aid scheme within the meaning of Article 1(d) of Regulation 2015/1589, the Commission could take the view, in recital 349 of the contested decision, that that was the case from the point when no individual undertaking which it regarded as a beneficiary — an airline in this case — was designated in the legal framework, described in Section 2 of the contested decision, which it considered to constitute the aid scheme at issue. That reasoning was sufficient to enable the applicant to understand that the description of the scheme, set out in that section, fulfilled, according to the Commission, the conditions prescribed in the first situation covered by the definition of an aid scheme set out in Article 1(d) of Regulation 2015/1589. 246 The applicant further complains that the Commission did not explain why the ex ante analysis of incremental profitability, as referred to in points 61 to 66 of the 2014 Guidelines, was not applicable in this case. However, that complaint must be rejected. In recitals 381 to 384 of the contested decision, the Commission justified the absence of relevance of the ex ante analysis, as referred to in those points 61 to 66, by the fact that, first, the Italian Republic had not provided ex ante analyses of incremental profitability, and, second, the Autonomous Region owned only one of the three airports concerned, namely Alghero airport. Furthermore, given that it had found that the operators of Cagliari-Elmas and Olbia airports had merely implemented the aid scheme at issue, the absence of relevance of that type of analysis applied also so far as concerned the application of the market economy operator principle at the level of those operators. 247 As to the assertion that the Commission failed to prove that the funds received by the airlines from the airport operators were those originating from the Autonomous Region, or in what respect the airport operators were merely intermediaries in the transfer of funds from the Autonomous Region to the airlines as beneficiaries, it must be held that, in recitals 357 to 360 of the contested decision, the Commission clearly explained the reasons why it took the view that the airport operators had acted as intermediaries through which the funds from the Autonomous Region had been transferred to the airlines. Moreover, as has already been found in the examination of the first plea, it is clear that the funds used by the airport operators to remunerate the airlines were those made available to those operators by the Autonomous Region. 248 As regards the complaint that the Commission failed to take into account — or took into account insufficiently — the arguments put forward by Ryanair and easyJet during the administrative procedure, inter alia those set out in recitals 116, 118, 131, 136, 145, 152, 166, 172, 177 and 199 of the contested decision, besides those concerning, in essence, the particular situations of those airlines, which, consequently, are best placed to assess whether the reasoning provided in response by the Commission was sufficient, it must be held that the applicant’s complaint is factually inaccurate, since the Commission addressed those arguments in the contested decision. In addition, given that it ruled on the existence of an aid scheme, the Commission was not required, contrary to what the applicant claims, to conduct a detailed examination of the content of all the contracts concluded by the airport operators with all the airlines. 249 According to the applicant, the contested decision is vitiated by contradictory reasoning, in particular as regards the applicability of the 2005 and 2014 Guidelines and as regards the objectives of the marketing services offered by the airlines to the airport operators. 250 In that regard, the Commission explained, in recital 414 of the contested decision, why the aid scheme at issue, in so far as it constituted aid to the airlines, was covered by the 2005 Guidelines and not by the 2014 Guidelines. It thus examined the lawfulness of that aid, in recitals 407 to 420 of that decision, in the light of the 2005 Guidelines. It is true that in recitals 379 to 387 of the contested decision, relating to the existence of an advantage, the Commission referred to certain methodological factors concerning the application of the market economy operator principle, which had already been set out by that institution in the 2014 Guidelines. However, in so doing, the Commission was merely applying concepts that could have been applied in any event, even in the absence of those guidelines. In those circumstances, the reference to the 2014 Guidelines, in the examination of whether the market economy operator principle applied, was not inconsistent with the need to examine the aid to the airlines in the light of the 2005 Guidelines (see, to that effect, judgment of 13 December 2018, Transavia Airlines v Commission, T‑591/15, EU:T:2018:946, paragraphs 157 to 163). 251 As regards the objectives of the marketing services offered by the airlines to the airport operators, the applicant alleges an inconsistency in that respect. However, the wording of that complaint does not enable the Court to understand that complaint, such that it must be rejected as inadmissible. 252 It follows from the foregoing that the contested decision does not suffer from a failure to state reasons or from contradictory reasoning and that, as to the remainder, the complaints and arguments seeking to challenge the substance of the contested decision are inoperative and irrelevant to the present plea. 253 As to the applicant’s claim that the Commission is under an enhanced obligation to state reasons where it orders aid to be recovered, it must be rejected. Indeed, it is sufficient to recall in that regard that, in accordance with the case-law, the removal of unlawful State aid by means of recovery is the logical consequence of a finding that it is unlawful. By repaying the aid, which cannot be regarded as a sanction, the recipient forfeits the advantage which it had enjoyed over its competitors on the market, enabling a return to the situation prior to payment of the aid (judgment of 17 June 1999, Belgium v Commission, C‑75/97, EU:C:1999:311, paragraphs 64 and 65). It follows that, after having found, in recital 421 of the contested decision, that the State aid granted to the airlines by the Autonomous Region constituted unlawful State aid which was incompatible with the internal market, the reasoning set out in recitals 422 to 426 of the contested decision was sufficient to order the recovery of the aid, including in the case of the applicant. 254 In the light of the foregoing, the fifth plea must be rejected and, consequently, the action must be dismissed in its entirety. IV. Costs 255 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 Volotea, SA to pay the costs. Papasavvas Svenningsen Valančius Csehi Nihoul Delivered in open court in Luxembourg on 13 May 2020. E. Coulon S. Papasavvas Registrar President Table of contents I. Background to the dispute A. The measures at issue 1. The provisions adopted by the Autonomous Region (a) Article 3 of Law No 10/2010 (b) The measures implementing Law No 10/2010 2. Implementation of the measures at issue (a) Implementation of Law No 10/2010 with regard to Olbia airport (b) Implementation of Law No 10/2010 with regard to Cagliari-Elmas airport (c) Implementation of Law No 10/2010 with regard to Alghero airport B. The contested decision II. Procedure and forms of order sought by the parties III. Law A. First plea: misinterpretation of the concept of State aid within the meaning of Article 107(1) TFEU 1. Admissibility of certain arguments 2. First part of the first plea: incorrect determination of the beneficiaries of the aid scheme at issue, and second part of the first plea: absence of advantage for the applicant (a) Use of ‘State resources’ by the airport operators (b) Imputability to the Autonomous Region of decisions and payments made to the applicant by the airport operators (c) Misidentification of the beneficiaries of the aid scheme at issue and absence of advantage for the airlines (d) Market economy operator principle (1) Application of the market economy operator principle to the contractual relations between the airport operators and the airlines (2) Application of the market economy operator principle at the level of the Autonomous Region (3) Possibility of regarding the financing concerning Olbia airport as aid for marketing activities, investment or regional airports 3. Third part of the first plea: absence of selectivity of the aid measure 4. Fourth part of the first plea: absence of distortion of competition and of effects on trade between Member States (a) Possibility of regarding the aid at issue as falling within the de minimis threshold prescribed by Regulation No 360/2012 (b) Distortion of competition and the effects on intra-Union trade of the aid scheme at issue B. Second plea: error as to the possibility of justifying the aid at issue C. Third plea: error of law in the order for recovery of the aid at issue D. Fourth plea: mismanagement of the investigation E. Fifth plea: failure to state reasons and contradictory reasoning IV. Costs * Language of the case: English.