Judgment;Abstract — ECLI:EU:T:2023:51
Date: 2023-02-08
Language of the case: English
Court formation: Eighth Chamber, Extended Composition
Subject matter: State aids;Competition
Procedure: Action for annulment - successful
Origin: Romania

summary of AITTV’s comments concerning the third measure, and not in the part relating to the Commission’s assessment of that measure: ‘[AITTV] declared having carried out calculations before concluding the 2008 Agreements. According to [AITTV], there was no legal obligation to have prepared a business plan. [AITTV] knew of no reason to retain any documentation.’ 180 It must be stated, however, that the alleged calculations carried out by AITTV before the conclusion of the 2008 agreements were not communicated to the Commission and that, in the contested decision, the Commission did not rely on those calculations in order to evaluate the profitability of those agreements in the light of the private operator in a market economy test. 181 Thus, contrary to what is required in accordance with the case-law cited in paragraphs 175 and 177 above, it is in no way apparent from the contested decision that AITTV’s decision to conclude the 2008 agreements with Wizz Air was based on prior economic evaluations which a private operator in a similar situation would have carried out, having regard to the available and foreseeable information. 182 Even if AITTV evaluated ex ante the future profitability of the 2008 agreements, it failed in any event to fulfil its obligation to communicate to the Commission appropriate evidence of a prior evaluation enabling the Commission to determine whether the attitude of that public undertaking was comparable to the attitude of a rational private operator (see, to that effect, judgment of 25 June 2015, SACE and Sace BT v Commission, T‑305/13, EU:T:2015:435, paragraphs 182 and 185). 183 It is true that the 2015 Oxera report refers to a ‘business plan’ prepared by AITTV in connection with the 2008 agreements and provided by AITTV to Oxera for the purpose of preparing that report. However, the answers given by Wizz Air and AITTV to the Court’s questions of 19 July 2022 confirmed that that ‘business plan’ had not been prepared in 2008, but had been reconstructed ex post during the administrative procedure, on the basis of information which would have been available to AITTV in 2008. 184 It follows that the Commission did not have in its possession any written document prepared prior to the conclusion of the 2008 agreements when it analysed whether AITTV had acted like a private operator in a similar situation, having regard to the available and foreseeable information. 185 Moreover, it is apparent from the contested decision that the ex ante profitability analysis, which was reconstructed ex post on the basis of the data available before the conclusion of the 2008 agreements, submitted by Romania on 9 December 2014 at the Commission’s request, contained shortcomings and did not make it possible to demonstrate that the private operator in a market economy test had been complied with in the 2008 agreements (see recitals 344 and 356 of the contested decision and paragraphs 163 and 164 above). Accordingly, it is unlikely that the hypothetical prior calculations referred to in recital 147 of the contested decision, which AITTV allegedly carried out before the conclusion of the 2008 agreements, would have made it possible to demonstrate satisfactory prospects of ex ante profitability in respect of those agreements. 186 In the second place, the Commission concluded that the 2008 agreements were profitable on the basis of the 2015 Oxera report, namely an ex ante profitability analysis which was reconstructed ex post on the basis of the data available before the conclusion of the 2008 agreements, submitted by Wizz Air on 10 February 2015 and recalculated by the Commission (see paragraphs 163 and 165 above). 187 As the Commission contends, the 2015 Oxera report, although produced almost seven years after the conclusion of the 2008 agreements, is based on data available before the conclusion of those agreements. 188 However, contrary to what the Commission asserts, the view cannot be taken, merely because that report is based on the information which was available and the developments which were foreseeable at the time when the third measure was adopted in 2008, that it amounts to an ex ante analysis capable of demonstrating compliance with the private operator in a market economy test. 189 It is true that, according to the case-law, it is for the Commission to carry out an overall assessment, taking into account all relevant evidence in the case enabling it to determine whether the recipient undertaking would manifestly not have obtained comparable facilities from such a private operator. In that regard, all information liable to have a significant influence on the decision-making process of a normally prudent and diligent private operator, in a situation as close as possible to that of the State, must be regarded as being relevant (see judgment of 26 March 2020, Larko v Commission, C‑244/18 P, EU:C:2020:238, paragraphs 29 and 30 and the case-law cited; see also, to that effect, judgment of 20 September 2017, Commission v Frucona Košice, C‑300/16 P, EU:C:2017:706, paragraph 60). 190 However, factors arising after the measure at issue has been adopted cannot be taken into account for the purpose of applying the private operator test (see judgment of 26 March 2020, Larko v Commission, C‑244/18 P, EU:C:2020:238, paragraph 32 and the case-law cited; see also, to that effect, judgments of 5 June 2012, Commission v EDF, C‑124/10 P, EU:C:2012:318, paragraph 104, and of 25 June 2015, SACE and Sace BT v Commission, T‑305/13, EU:T:2015:435, paragraphs 93 and 94). 191 In that regard, while it is true that, as follows from the case-law cited in paragraph 176 above, the public undertaking concerned has the opportunity in the administrative procedure to produce additional evidence which is generated after the adoption of the measure, such an opportunity cannot exempt that undertaking from the obligation to carry out an appropriate prior economic evaluation, based on an analysis of the available information and foreseeable developments which is appropriate having regard to the nature, complexity, size and context of the operation (see, to that effect, judgment of 25 June 2015, SACE and Sace BT v Commission, T‑305/13, EU:T:2015:435, paragraphs 186 and 188). 192 However, in the present case, the 2015 Oxera report, although based on data available before the conclusion of the 2008 agreements, is nonetheless a retrospective finding that those agreements were actually profitable. For that reason, in accordance with the case-law cited in paragraph 190 above, it is irrelevant for the purpose of assessing compliance with the private operator in a market economy test. 193 In the third place, the Commission also took into account, in the contested decision, ex post studies carried out by Oxera and RBB, dated 27 October 2011, as supporting the results of the 2015 Oxera report (see paragraphs 167 and 169 above). 194 According to the case-law, in order to determine whether the beneficiary of the measure concerned has actually obtained an advantage for the purposes of Article 107(1) TFEU, additional economic analyses provided by the Member State in the administrative procedure are capable of shedding light on the information existing at the time of the investment decision and must be taken into account by the Commission (judgment of 3 July 2014, Spain and Others v Commission, T‑319/12 and T‑321/12, not published, EU:T:2014:604, paragraph 134). 195 However, in the present case, the ex post reconstructed evidence taken into account by the Commission, whether provided by Romania or by Wizz Air, did not supplement evidence generated before the conclusion of the 2008 agreements, which AITTV provided to the Commission. On the contrary, that was the only evidence provided to the Commission and the only evidence on which the Commission based its assessment of the 2008 agreements. 196 In the fourth and last place, in its conclusion on the economic advantage with regard to the 2008 agreements, the Commission also took into account the fact that ‘there [were] indications, in particular based on the Development Plan 2006-2015[,] that the 2008 Agreements with Wizz Air were part of an overall strategy and long-term effort towards overall profitability of the airport’ (see recital 414 of the contested decision and paragraph 169 above). 197 However, such vague factors, which are not substantiated in any way, cannot constitute sufficient evidence that a prior economic evaluation of profitability was carried out before the conclusion of the 2008 agreements. 198 Accordingly, it must be stated that the Commission’s conclusion that a prudent private operator in a market economy would have entered into the 2008 agreements is based entirely on evidence established ex post, contrary to the case-law cited in paragraphs 170 to 177 above. 199 It must therefore be held that the Commission failed to state grounds in law for its conclusion that the third measure had not conferred an economic advantage on Wizz Air which it would not have obtained under normal market conditions and that it therefore did not constitute State aid. 200 Without there being any need to examine the other arguments raised by the applicant as part of the second plea in law, the present plea must therefore be upheld to the extent that it alleges an error of law in so far as the contested decision concludes that the third measure did not confer an undue advantage on Wizz Air. 201 In the light of all the foregoing considerations, the action must therefore be upheld on the basis of the first and second pleas in law, without there being any need to examine the third and fourth pleas in law. Costs 202 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 Commission has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the applicant, in accordance with the form of order sought by the applicant. Wizz Air and AITTV are to bear their own costs in accordance with Article 138(3) of the Rules of Procedure. On those grounds, THE GENERAL COURT (Eighth Chamber, Extended Composition) hereby: 1. [As rectified by order of 13 July 2023] Annuls Article 2 of Commission Decision (EU) 2021/1428 of 24 February 2020 on the State Aid SA.31662 – C/2011 (ex NN/2011) implemented by Romania for Timișoara International Airport – Wizz Air in so far as it concludes that the airport charges in the Aeronautical Information Publication of 2010 and the agreements concluded between Societatea Națională ‘Aeroportul Internaţional Timişoara – Traian Vuia’ SA (AITTV) and Wizz Air Hungary Légiközlekedési Zrt. (Wizz Air Hungary Zrt.) in 2008 (including the 2010 amendment agreements) do not constitute State aid; 2. Orders the European Commission to bear its own costs and to pay those incurred by Carpatair SA; 3. Orders Wizz Air Hungary and AITTV to bear their own costs. Papasavvas Svenningsen Jaeger Mac Eochaidh Pynnä Delivered in open court in Luxembourg on 8 February 2023. E. Coulon Registrar President Table of contents Background to the dispute Contested decision Forms of order sought Law Admissibility Interest in bringing proceedings Standing to bring proceedings – Preliminary considerations regarding the nature of the measures at issue – Whether the applicant is individually concerned as regards the third measure – Whether the applicant is directly concerned as regards the measures at issue Admissibility of the annexes Admissibility of the excerpts from the judicial administrator’s report Admissibility of Annex Q.2 Substance The first plea in law, alleging an error of law as regards the selective nature of the second measure – The assessment of the second measure in the contested decision – The merits of the assessment of the second measure The second plea in law, alleging a manifest error of assessment, an error of law and an inadequate statement of reasons in so far as the contested decision concludes that the third measure did not confer an undue advantage on Wizz Air – The assessment of the third measure in the contested decision – The merits of the assessment of the third measure Costs * Language of the case: English.