Opinion of the Advocate General — ECLI:EU:C:2020:862
Date: 2020-10-27
Language of the case: German

summary of its content, and that it was not therefore possible for that Court to establish in the present case the existence of a link between the measures in question and that restructuring programme. 99. On those grounds, the General Court was right to find that the appellant had not demonstrated that the restructuring programme had been made necessary because of the aid paid to Ryanair and Frankfurt Hahn airport. 100. In the third place, the appellant complains that the General Court held that it had not demonstrated the causal link between the measures in question and the relocation of Ryanair’s activities to Frankfurt Main airport. The General Court therefore erred in law, since that relocation revealed that its competitive position had been affected. 101. In that regard, the appellant recalls that it argued during the proceedings before the General Court that Ryanair’s conduct was part of a more global strategy to become established in regional airports in order to obtain grants there and to relocate its activities subsequently to other airports. It states that, in the context of the appeal, it has adduced other evidence confirming that strategy and establishing a causal link between the measures in question and the relocation of Ryanair’s activities. 102. In so doing, the appellant merely repeats, however, the arguments it had already put forward before the General Court, with a view to obtaining a fresh assessment of the facts, which the Court does not have jurisdiction to undertake. (33) 103. Moreover, even if a causal link could be established between the relocation of Ryanair’s activities and the aid measures in question which it received, it would still be necessary for the appellant to demonstrate beforehand that such relocation had substantially affected its competitive position. However, the appellant merely states that the relocation of Ryanair’s activities ‘naturally’ affected its competitive position, without adducing further evidence in support of its contention, as the General Court rightly pointed out in paragraph 154 of the judgment under appeal. 104. In the fourth place, the appellant claims that the General Court erred in law in finding that the geographical proximity of Frankfurt Hahn airport to Frankfurt Main airport was merely indicative of a competitive relationship between those airports. That geographical proximity also provides evidence of competition between the different routes operated from the two airports. That competition being combined with the extent of the aid, the necessary result is a substantial effect on its competitive position. 105. In paragraphs 159 and 161 of the judgment under appeal, the General Court found that, assuming that geographical proximity may be regarded as indicating that there is a competitive relationship between Ryanair and the appellant, the mere status as a competitor of the recipient undertaking, combined with the alleged extent of the aid in question, was not sufficient to establish that there was a substantial effect on its competitive position. 106. The appellant again therefore is merely repeating the arguments already put forward before the General Court, with a view to obtaining a fresh assessment of the facts, and is in reality seeking a re-examination of those arguments, which the Court does not have jurisdiction to undertake. That argument should therefore be rejected as inadmissible. 107. In the fifth place, the appellant also contends that the General Court’s finding relating to the existence of a causal link between the measures in question and their effects as alleged by the appellant is incorrect. It states that that condition was met, since the substantial effect on its competitive position, which it argues it has demonstrated, followed on sufficiently directly from the measures in question. 108. However, the appellant once again merely lists briefly the effects of the measures on Ryanair’s position and claims that they resulted in a substantial effect on its market position. Thus, it merely restates the arguments already put forward before the General Court in order to prompt the Court of Justice to re-examine them, which, again, the Court does not have jurisdiction to undertake. 109. In the sixth and last place, the appellant claims that the General Court infringed Article 47 of the Charter since, as it seeks to demonstrate over the course of its arguments, the requirements set out in its judgment exceed the limits laid down in the case-law of the Court of Justice. 110. However, I note that the appellant does not provide any support for its arguments in that regard and does not explain what those alleged requirements are. 111. In any event, since, in the light of the foregoing, the General Court did not err in law in its assessment of the substantial effect on the appellant’s position on the various markets, the appellant’s argument alleging infringement of Article 47 of the Charter as a result of requirements exceeding the limits laid down in the case-law cannot succeed either. 112. Accordingly, the sixth part of the first ground of the appeal should be rejected in its entirety. VI. Conclusion 113. In the light of all the foregoing, I am of the opinion that the fourth to sixth parts of the first ground of the appeal should be rejected, without prejudice to the merits of the other grounds of the appeal. 1 Original language: French. 2 Paragraphs 1 to 33 of the judgment under appeal. 3 See, in that regard, Biernat, S., ‘Dostęp osób prywatnych do sądów unijnych po Traktacie z Lizbony (w świetle pierwszych orzeczeń)’, Europejski Przegląd Sądowy, 2014, No 1, p. 12 et seq. 4 Judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci (C‑622/16 P to C‑624/16 P, EU:C:2018:873). 5 Since a decision relating to individual aid, unlike those relating to an aid scheme, cannot be considered to be an act of general application and therefore a regulatory act. 6 Judgments of 15 July 1963, Plaumann v Commission (25/62, EU:C:1963:17, p. 223); of 22 November 2007, Sniace v Commission (C‑260/05 P, EU:C:2007:700, paragraph 53); and of 9 July 2009, 3F v Commission (C‑319/07 P, EU:C:2009:435, paragraph 29). 7 Council Regulation of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1). 8 Judgment of 24 May 2011, Commission v Kronoply and Kronotex (C‑83/09 P, EU:C:2011:341, paragraph 48). 9 Judgment of 28 January 1986 (169/84, EU:C:1986:42). 10 Judgment of 28 January 1986, Cofaz and Others v Commission (169/84, EU:C:1986:42, paragraph 25). My emphasis. 11 Judgment of 22 November 2007, Sniace v Commission (C‑260/05 P, EU:C:2007:700, paragraph 57). 12 Judgment of 22 November 2007, Sniace v Commission (C‑260/05 P, EU:C:2007:700, paragraph 56). 13 See judgment of 28 January 1986 (169/84, EU:C:1986:42, paragraph 28). 14 See, also, judgments of 22 November 2007, Spain v Lenzing (C‑525/04 P, EU:C:2007:698, paragraph 41), and of 22 November 2007, Sniace v Commission (C‑260/05 P, EU:C:2007:700, paragraph 60). 15 Judgment of 28 January 1986 (169/84, EU:C:1986:42). 16 See, inter alia, judgments of 27 April 1995, ASPEC and Others v Commission (T‑435/93, EU:T:1995:79, paragraph 65 et seq.); of 27 April 1995, AAC and Others v Commission (T‑442/93, EU:T:1995:80, paragraph 50 et seq.); of 22 October 1996, Skibsværftsforeningen and Others v Commission (T‑266/94, EU:T:1996:153, paragraph 46); and of 5 November 1997, Ducros v Commission (T‑149/95, EU:T:1997:165, paragraph 42). That case-law was confirmed by the judgment of 22 November 2007, Spain v Lenzing (C‑525/04 P, EU:C:2007:698, paragraph 37). 17 Judgment of 22 December 2008, British Aggregates v Commission (C‑487/06 P, EU:C:2008:757, paragraph 56). 18 Judgment of 22 December 2008, British Aggregates v Commission (C‑487/06 P, EU:C:2008:757, paragraph 38). 19 Judgments of 22 November 2007, Spain v Lenzing (C‑525/04 P, EU:C:2007:698, paragraphs 34 and 35); of 22 December 2008, British Aggregates v Commission (C‑487/06 P, EU:C:2008:757, paragraph 53); of 12 June 2014, Sarc v Commission (T‑488/11, not published, EU:T:2014:497, paragraph 36); and of 5 November 2014, Vtesse Networks v Commission (T‑362/10, EU:T:2014:928, paragraph 40). 20 See, inter alia, for the most significant cases, order of 27 May 2004, Deutsche Post and DHL v Commission (T‑358/02, EU:T:2004:159); judgments of 10 February 2009, Deutsche Post and DHL International v Commission (T‑388/03, EU:T:2009:30); of 22 June 2016, Whirlpool Europe v Commission (T‑118/13, EU:T:2016:365); and of 11 July 2019, Air France v Commission (T‑894/16, EU:T:2019:508). That case-law led certain authors to describe proof of a substantial effect on the applicant’s competitive position as a ‘probatio diabolica’ and to question its compatibility with Article 47 of the Charter. See de Moncuit, A., and Signes de Mesa, J.I., Droit procédural des aides d’État, 1st Ed., 2019, Bruylant, Brussels, p. 162, and Thomas, S., ‘Le rôle des concurrents dans les procédures judiciaires concernant des régimes d’aides d’État ou des aides individuelles. Montessori: le début d’une révolution?’, Revue des affaires européennes, 2019, No 2, p. 264. 21 Judgment of 10 February 2009, Deutsche Post and DHL International v Commission (T‑388/03, EU:T:2009:30, paragraph 38). 22 Judgment of 22 June 2016, Whirlpool Europe v Commission (T‑118/13, EU:T:2016:365, paragraph 52). 23 Judgment of 11 July 2019, Air France v Commission (T‑894/16, EU:T:2019:508, paragraphs 61 and 68). 24 See point 46 of this Opinion and judgment of 22 December 2008, British Aggregates v Commission (C‑487/06 P, EU:C:2008:757, paragraph 56). On that point, see also, Creve, B.A., ‘Locus Standi Requirements for Annulment Actions by Competitors: The Resurfacing “Unique Position Test” Ought to Be Discarded’, European State Aid Law Quarterly, 2014, vol. 13, No 2, p. 233. 25 Such absence of effect on other competitors can only be an indication of the fact that the applicant is in fact substantially affected by the measure in question. 26 See point 50 of this Opinion. 27 Judgment of 5 November 2014, Vtesse Networks v Commission (T‑362/10, EU:T:2014:928, paragraph 41). 28 See, inter alia, judgment of 12 December 2006, Asociación de Estaciones de Servicio de Madrid and Federación Catalana de Estaciones de Servicio v Commission (T‑146/03, not published, EU:T:2006:386, paragraph 50), in which the General Court held that a substantial effect on the market position of an applicant could be established by the transfer of some of its customers to the recipient of the aid, without that transfer being translated specifically into market shares. 29 As was noted in the judgment of 11 July 2019, Air France v Commission (T‑894/16, EU:T:2019:508, paragraph 65). 30 See, by analogy, with regard to the case-law recognising the individual concern of public entities that have participated in the financing of aid, judgments of 30 April 1998, Vlaamse Gewest v Commission (T‑214/95, EU:T:1998:77, paragraph 28); of 6 March 2002, Diputación Foral de Álava and Others v Commission (T‑127/99, T‑129/99 and T‑148/99, EU:T:2002:59, paragraph 50); of 23 October 2002, Diputación Foral de Guipúzcoa and Others v Commission (T‑269/99, T‑271/99 and T‑272/99, EU:T:2002:258, paragraph 41); and of 23 October 2002, Diputación Foral de Álava and Others v Commission (T‑346/99 to T‑348/99, EU:T:2002:259, paragraph 37). 31 See, with regard to the application of the requirement of a substantial effect on the applicant’s competitive position in the presence of a measure classified as aid, judgments of 17 September 2015, Mory and Others v Commission (C‑33/14 P, EU:C:2015:609), and, on the same in the presence of a measure not constituting aid, of 22 November 2007, Sniace v Commission (C‑260/05 P, EU:C:2007:700). 32 Judgment of 22 November 2007, Spain v Lenzing (C‑525/04 P, EU:C:2007:698, paragraphs 35 and 36). 33 Judgment of 7 January 2004, Aalborg Portland and Others v Commission (C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P, EU:C:2004:6, paragraph 51), and order of 29 January 2020, Silgan Closures and Silgan Holdings v Commission (C-418/19 P, not published, EU:C:2020:43, paragraph 71).