OPINION OF ADVOCATE GENERAL
BIONDI
delivered on 26 March 2026 (1)
Joined Cases C‑266/24 P, C‑269/24 P and C‑289/24 P
European Commission
v
Ryanair DAC (C‑266/24 P)
and
Koninklijke Luchtvaart Maatschappij NV
v
Ryanair DAC,
European Commission (C‑269/24 P)
and
Société Air France,
Air France-KLM
v
Ryanair DAC,
European Commission (C‑289/24 P)
( Appeal – State aid – Aid granted by the Netherlands to KLM in the context of the COVID‑19 pandemic – State guarantee for a bank loan and a subordinated loan by the State – Decision declaring the aid compatible with the internal market – Determination of the beneficiary of the aid in the context of a group of companies )
I.      Introduction
1.        The present appeals are yet another of the (by now rather extensive) number of cases where the EU Courts have been confronted with the compatibility of national measures adopted to alleviate the tragic consequences of the COVID‑19 pandemic with the system of EU State aid law.
2.        In that context, the Court has been explicit in upholding Member States’
claims that they are entitled, whether under Article 107(2)(b) TFEU (2) or under Article 107(3)(b) TFEU, (3) to support certain national undertakings,
and not others, because of their structurally essential features
to that Member State’s economy, in terms, for example, of connectivity, employment and infrastructure.
3.        There may be a time and a place to reassess the consistency of the Court rulings on the application of EU law principles to measures adopted in the context of severe emergencies and their viability, especially in the light of the accrued and savvier knowledge on the impact of those measures on the marketplace. State aid control as much as competition law is indeed a dynamic process.
However, its ultimate aim is always that of preventing national partitioning, not allowing the behaviour of undertakings to impair genuine, undistorted competition on the internal market and the pursuit of common objectives.
4.        The present appeals, though, require the Court to focus exclusively on the correct application of some of the basic concepts of State aid law. In particular, they raise the question of the criteria to be applied in determining the beneficiary of a State aid measure in the context of a group of companies.
The European Commission (Case C‑266/24 P), Koninklijke Luchtvaart Maatschappij NV (‘KLM’)
(Case C‑269/24 P) and
Air France-KLM S.A. (‘Air-France-KLM’) and
Société Air France S.A. (‘Air France’)
(Case C‑289/24 P) seek to have set aside the judgment in Case T‑146/22 (‘the judgment under appeal’), by which the General Court annulled Commission Decision C(2021) 5437 final of 16 July 2021 (4) (‘the decision at issue’) authorising support measures in favour of the airline KLM.
Those appeals form part of a series of seven appeals, all concerning measures in favour of companies in the Air France-KLM group. (5)
II.    Background to the dispute, the decision at issue and the judgment under appeal
5.        KLM is part of the Air France-KLM group, headed by Air France-KLM. (6) Air France, wholly owned
by Air France-KLM,
is another subsidiary of the group and a sister company of KLM. (7)
6.        On 26 June 2020, the Kingdom of the Netherlands notified the Commission of aid in favour of KLM consisting of (i) a State guarantee for a loan granted to it by a consortium of banks and (ii) a State loan (‘the measure concerned’). The total budget of the aid was EUR 3.4 billion. The objective of the measure concerned
was to provide temporary liquidity to KLM, which it needed to deal with the adverse effects of the COVID‑19 pandemic. The Kingdom of the Netherlands considered that, in view of the importance of KLM for its economy and air transport connectivity, the failure of that company would have exacerbated the serious disturbance in its economy caused by that pandemic. (8)
7.        By decision of 13 July 2020, the Commission found that the measure concerned, first, constituted State aid within the meaning of Article 107(1) TFEU and, second, was compatible with the internal market on the basis of Article 107(3)(b) TFEU. (9) According to that decision, KLM was the sole beneficiary of the aid, to the exclusion of the other companies in the Air France-KLM group. (10)
8.        By judgment of 19 May 2021, Ryanair v Commission (KLM; Covid-19), (11) the Court annulled the Initial Decision on the ground that it was vitiated by a failure to state reasons as regards the determination of the beneficiary of the measure concerned. In addition, it ordered that the effects of the annulment of that decision be suspended pending the adoption of a new decision by the Commission under Article 108 TFEU. (12)
9.        On 16 July 2021, the Commission adopted the decision at issue, in which it found that the measure concerned involved State aid within the meaning of Article 107(1) TFEU but was compatible with the internal market on the basis of Article 107(3)(b) TFEU, and that KLM was the sole beneficiary of the aid, to the exclusion of the other companies in the Air France-KLM group.
10.      Ryanair DAC (‘Ryanair’) sought the annulment of the decision at issue, claiming, inter alia, that the Commission erred in defining the beneficiary of the aid as solely KLM. In the judgment under appeal, the General Court upheld that plea and concluded that the beneficiary of the aid measure concerned
should have encompassed Air France, Air France-KLM and KLM. On that ground, the General Court
annulled the decision at issue in its entirety without examining the other pleas raised by Ryanair. (13)
III. Forms of order sought
11.      The Commission, KLM, Air France-KLM and Air France – in their three respective appeals – ask the Court, primarily, to set aside the judgment under appeal, give final judgment and order Ryanair to pay the costs or, in the alternative, refer the case back to the General Court for judgment and reserve the costs of the proceedings.
12.      The French Republic and the Kingdom of the Netherlands both request that the Court uphold the appeals and set aside the judgment under appeal. The Kingdom of the Netherlands additionally asks that the Court order Ryanair to pay the costs.
13.      Ryanair requests
that the Court dismiss the appeals and order the Commission, KLM, Air France-KLM and Air France to pay the costs.
IV.    The appeals
14.      The Commission raises two grounds in support of its appeal. By its first ground of appeal, it submits that the General Court erred in law by applying an incorrect standard for defining the aid beneficiary within a corporate group. By its second ground of appeal, it submits that the General Court has substituted its own assessment for that of the Commission, without adequately establishing that the Commission’s reasoning was vitiated by a manifest error of assessment.
15.      KLM (in Case C‑269/24 P) and Air France-KLM and Air France (in Case C‑289/24 P)
raise three grounds in support of their appeals, the first two alleging the same errors in law raised by the Commission in its appeal in Case C‑266/24 P. By their third ground, KLM, Air France-KLM and Air France submit that the General Court erred in law by misinterpreting the legal framework concerning the concept of ‘indirect advantages of State aid’.
A.      The first ground of appeal
16.      By their first ground of appeal,
challenging paragraphs 54 to 159 of the judgment under appeal, the Commission, KLM, Air France-KLM and Air France (together, ‘the appellants’), supported by the French Republic and the Kingdom of the Netherlands, allege that the General Court applied an incorrect standard when determining which undertaking qualified as beneficiary of the
aid granted by the measure concerned. More specifically, according to the appellants, the General Court wrongly equated the analysis of what constitutes a ‘single economic unit’ with the analysis of the ‘beneficiary’ of an aid measure in the context of a group of companies, focusing on the factors which make it possible to establish the existence of such a unit instead of determining which undertaking actually benefits
from the aid measure.
17.      Public aid may be granted in favour of natural or legal persons. However, State aid rules apply only to undertakings. (14) More precisely, Article 107(1) TFEU presupposes, inter alia, the existence of an advantage conferred on an undertaking. (15) Those two concepts encompass a third, which, whilst not specifically referred to in Article 107(1) TFEU, is central to State aid law: that of the beneficiary. The
concept of beneficiary –
which is not only relevant for the purpose of the recovery of the aid but also
for analysing whether a national measure falls under the scope of Article 107(1) and its compatibility –
designates
the undertaking
which actually benefits from the aid. (16)
18.      According to the well-established
test devised by the Court,
the concept of undertaking refers to entities engaged in an economic activity, irrespective of their legal status and the way in which they are financed, (17) and
must be understood as designating an economic unit even if in law that economic unit consists of several persons, natural or legal. (18)
19.      Developed by the Court in the early 1970s, in the context of what is now Article 101 TFEU, the concept of undertaking as an economic unit has been transplanted to
other
closely interwoven areas of EU law, such as State aid (19) –
and rightly so. Paraphrasing Advocate General Jacobs, for the sake of coherence and uniformity, as a general rule, the same concepts should, in closely related areas of EU law that pursue the same objectives, be given identical meaning, unless otherwise justified. (20)
20.      Several legally independent entities may therefore be considered part of a single undertaking for the purpose of identifying the scope of the beneficiary of State aid when they can be considered to benefit, as an economic
unit, from the measure in question. (21)
21.      It is clear that that does not mean that any
time the recipient of State aid is part of a group of companies, the whole group must automatically be considered to be the actual beneficiary. In order to delimit the perimeter of the undertaking – understood as an economic unit – benefiting from an aid measure within such a group of companies,
a multiplicity of factors must be taken into account which make it possible to determine in each case the foreseeable
economic effects
of that measure and of the advantages
it grants.
It is therefore an exercise of a prospective nature.
22.      In order
to determine whether the criticisms
formulated by the appellants are well
founded, it is thus necessary
to review briefly the steps of the reasoning followed by the Commission and the General Court,
respectively, for the purpose of identifying the beneficiary of the aid measure concerned.
23.      In recitals 107 to 110 of the decision at issue, relying on General Court case-law, the Commission recalled,
first, that companies within a corporate group may be treated as a single undertaking for State aid purposes when they form a single economic unit, assessed on the basis of factors related to the existence of links between those companies such as direct or indirect control by one entity, functional and financial links, identical or parallel economic activities and specific contractual clauses. (22) Second, the Commission, referring to the judgment of 3 July 2003, Belgium v Commission, (23) pointed out
that the sole fact that several companies belong to the same group does not necessarily mean that they are all ipso facto beneficiaries of State aid, as aid may be limited to specific entities within the group. Applying those criteria, in recitals 112 to 117 of the decision at issue, the Commission analysed, subsequently: (i) the functional, economic and organic links between Air France, KLM and Air France-KLM; and (ii) the agreements related to the measure concerned
and the risk of aid spillover between those
three entities. Following its analysis, the Commission considered, on the one hand, that, although certain functional, economic and organic links existed, (24) KLM enjoyed
de facto considerable functional, financial and operational autonomy, managed its financing and liquidity needs independently
(with Air France-KLM having no control over its funds) and engaged in intra-group transactions at market terms. (25) On the other hand, the Commission considered that the contractual mechanisms of the measure concerned
included
multiple safeguards, (26) ensuring that the funds would be channelled exclusively and effectively to KLM, to which they would be directly transferred without transiting through the holding company and without possible spillover to Air France. Accordingly, the Commission concluded that KLM constituted a distinct economic unit from its parent company and Air France,
and was the sole beneficiary of that measure.
24.      In the judgment under appeal, first, the General Court examined the capital, organic, functional and economic links between Air France-KLM, Air France and KLM and their respective subsidiaries and concluded that they were all factors indicating that those entities formed a single economic union for the purposes of the application of the rules on State aid. (27) In particular, the General Court
found
that (i) Air France-KLM exercised control by involving itself directly or indirectly in the management of Air France and KLM; (28) (ii) the conclusion reached by the Commission, namely that Air France and KLM enjoyed functional autonomy, was unsubstantiated; (29) and (iii) there was a degree of economic and financial interdependence between Air France-KLM and its subsidiaries as well as a degree of economic integration and cooperation between Air France and KLM. (30) Second, the General Court examined
the agreements on the basis of which the measure concerned
was granted, concluding that the contractual mechanisms provided for in those agreements did not support the conclusion that the
sole beneficiary of the aid measure concerned
was KLM (31) (paragraph 132). In addition, the General Court examined the type of measure granted and the context in which it was granted, finding that the Commission had failed to take account of the Air France-KLM and Air France decision as part of such context. (32)
25.      I must confess that I found the appellants’ criticisms of the General Court’s reasoning excessively formalistic and at odds with the overarching functionality approach to which State aid law is subject. In plain English (and
hopefully in all other EU official languages), I simply cannot spot any real differences between the reconstruction proposed by the Commission in the decision at issue and the General Court’s reasoning.
26.      Both the decision at issue and the judgment under appeal are based on an individual and global assessment of the same factors, examined in exactly the same order.
None of the appellants contests the relevance of any of those factors, nor do they affirm that the General Court has failed to take account of other likewise relevant ones. In particular, they acknowledge that the analysis of the economic, functional and organic links between the various entities of a group of companies is the starting point for determining the beneficiary of an aid measure within such a group, as it makes it possible,
in particular,
to ascertain the degree of decisional autonomy of those entities.
27.      The decision at issue and the judgment under appeal both rely on the same concept of undertaking as an economic unit and, basically, on the same case-law to determine the presence or absence of such a unit in the field of State aid. (33) Again, the appellants do not dispute the relevance of that
concept or of that
case-law in order to define the scope of the beneficiary of State aid within a corporate group.
28.      The Commission, referring to paragraph 66 of the judgment in AceaElectrabel, (34) observes that the concept of a ‘single economic unit’ in State aid matters may differ from that applicable to other areas of competition law. However, I am not entirely convinced by that argument.
29.      As well as the concept of ‘undertaking’, that of ‘single economic unit’ has a functional nature. The classification of several entities as a single economic unit for the purposes of competition law, including State aid, is contingent upon the specific goal at which such classification is aimed and depends on the context examined. Consequently, different entities may be considered an indivisible whole for identifying the beneficiary of State aid in a particular case, even though they would not be classified as such for purposes related to other fields of competition law.
30.      The
appellants also argue that the General Court
disregarded the case-law according to which the beneficiary of State aid may be limited to one of the companies forming part of a group, to the exclusion of the others, and that it therefore relied
on an incorrect or incomplete legal framework. They refer,
in particular, to the judgment in Verlipack, in which the Court clarified that the Commission is entitled to take account of the wording of allocation clauses in case of a public loan and to conclude that the beneficiary of the aid is not the borrower but a different entity, to which the former is obliged to pass on the funds loaned. They claim, in essence, that it follows from that judgment that the granting of aid to an entity within a group of companies may be subject to restrictions on access to the funds or on the purposes for which the aid can be used, such that, depending on the circumstances of each case, that entity can be considered an independent unit for the purpose of identifying the beneficiary of the aid.
31.      In that regard, I note first of all that the mere fact that, unlike the Commission in the decision at issue, (35) the General Court failed to make any reference to the judgment in Verlipack when it referred, in paragraphs 54 to 61 of the judgment under appeal, to the case-law it considered relevant and outlined the criteria it would apply, does not mean that it ruled out the possibility that the scope of the beneficiary of State aid within a group of companies
may be limited to a single entity.
32.      Such a possibility can indeed only be established after an assessment that takes into account all the relevant factors
referred to above
and depends on the specific features of each case. Therefore, the reasoning of the General Court cannot be challenged
solely
on the basis of the omission complained of, if it appears that it actually carried out such an assessment.
Furthermore, the General Court did not take into account the judgment in Verlipack, nor the judgments of 25 June 1998, British Airways and Others v Commission, (36) and of 11 May 2005, Saxonia Edelmetalle and ZEMAG v Commission, (37) to which the appellants also refer. However, it considered that the cases which had given rise to those judgments
were not comparable to those before it and concluded that, unlike in such judgments, the beneficiary of the aid measure concerned
could not be regarded as
being limited to a single company within the group to which it belonged. (38)
33.      The Commission claims that not only the omission,
in paragraphs 54 to 62 of the judgment under appeal, of any reference to the judgment in Verlipack, but also the references to point 11 of the Notice on the notion of State aid (39) and to the judgment in AceaElectrabel, in paragraphs 57 and 58 of that
judgment, indicate that the General Court relied on an incorrect legal framework. The Commission argues that although factors such as the existence of a controlling share and other functional, economic and organic links, relied on by that notice and the judgment in AceaElectrabel, are appropriate both for determining whether several entities form part of a single undertaking and for identifying the beneficiary of the aid, the weight and importance of those factors change depending on whether one seeks to define the ‘undertaking’ as a whole or the ‘beneficiary’. I admit that I do not fully understand that criticism.
34.      As previously stated, the concept of ‘undertaking’, as well as that of ‘economic unit’, are contingent upon the specific goal pursued. That means that when determining whether, within a corporate group, the beneficiary of an aid measure is only one of the entities of which the group is composed,
a unit composed of more of those entities, or the group as whole, account must be taken of all the relevant factors, which might be different from case to case. As a consequence, the same entities might be considered an economic unit in relation to a given aid measure and not in relation to another. (40)
35.      Therefore, in circumstances such as those of the present joined cases, the question is not how much weight or importance is to be given to the economic, organic and functional links existing between the entities of which the group is composed – which must be examined thoroughly and objectively – but whether, in the light of the specific features of the case,
one or more of those entities may, despite those links, be considered an independent undertaking and the sole beneficiary of the aid at issue.
It seems to me that the General Court followed exactly that line of reasoning in the judgment under appeal.
36.      The appellants claim also, with overlapping arguments, that the General Court has ruled out the possibility for a Member State to use contractual safeguards in order to limit the benefit of aid to certain entities within a corporate group.
That claim is, in my view, unfounded.
37.      Not only did the General Court expressly acknowledge that ‘the contracts on the basis of which the aid measure was granted’ is one of several factors that must be taken into consideration as part of a global assessment for determining whether separate legal entities may be regarded as forming a single economic unit for the purposes of the application of the rules on State aid, (41) it also thoroughly examined the content of the contractual mechanisms put in place by the agreements on the basis of which the aid measure concerned
was granted and found that the Commission had not demonstrated that those mechanisms were sufficient to prevent the funds granted to KLM from flowing, directly or indirectly, to other members of the group.
38.      In that respect, it is in my view undisputable,
as the General Court clarified
in paragraph 134 of the judgment under appeal, that the suitability of contractual mechanisms of that kind
to target a single entity within a corporate group depends
on their actual content
as well as on the specific features of the case. A different conclusion, which is not
advocated by the appellants themselves, would render the identification of the actual beneficiary of an aid measure, in contexts such as that of the present joined cases, a purely
formalistic
exercise.
39.      The judgment in Verlipack,
far from invalidating such a casuistic approach, actually confirms it. In that judgment, the Court admitted that it was only ‘possible’ that the analysis of the allocation clauses in question led to the conclusion that the recipient of the loans at issue was a different entity from the borrower. More broadly, while the judgment in Verlipack may certainly be read as acknowledging the relevance of the conditions under which a Member State grants
aid for the purpose of identifying the undertaking actually benefiting from it, its scope should not, in my view, be overstretched. (42) It cannot, in particular, be interpreted as giving unconditional precedence to contractual arrangements over economic reality and effectiveness of State aid control.
40.      I further recall that it is settled case-law of the Court that the only decisive factor for determining whether a measure is to be classified as State aid is the effects produced by that measure. (43) Such a fundamental principle of State aid law also serves as a guide for identifying the beneficiary of State aid. The case giving rise to the judgment in Verlipack is an application of the effects-based approach which permeates State aid law and cannot be invoked in order to endorse a method that places excessive weight on the contractual mechanisms accompanying the granting of aid without a thorough analysis of their content and effects.
41.      In conclusion, it seems to me that what the appellants
describe
as the application of an incorrect or incomplete legal framework and the misapplication or misinterpretation of the relevant case-law or of the ‘weight’ to be given to the applicable criteria amounts to nothing more than a difference in the conclusions reached by the Commission and the General Court on the basis of the relevant facts and evidence. Both the General Court and the Commission have, in my view, applied the same legal standard.
42.      In the light of all the foregoing considerations, I suggest that the first ground of appeal be rejected in all the present joined cases.
B.      The second ground of appeal
43.      The appellants, supported by the French Republic and the Kingdom of the Netherlands, claim that, in verifying the analysis of the beneficiary of the measure concerned
in the decision at issue, the General Court overstepped the limits of its marginal review in economic matters and substituted its own assessment of the facts and evidence for that of the Commission, without adequately establishing any manifest error of assessment in the latter’s reasoning. They primarily argue that the General Court reached a conclusion opposite to that of the Commission in the decision at issue, without finding a manifest error of assessment in any of the stages of the Commission’s analysis. Such a claim – which, contrary to what Ryanair contends, is admissible overall – is divided into four main submissions which I will consider separately. Before proceeding with my analysis, it may be useful to recall briefly the principles governing the standard of judicial review applicable in the circumstances of the present joined cases.
44.      The Court has acknowledged that the Commission has a broad discretion in determining whether separate entities form an economic unit for the purpose of defining the beneficiary of State aid. (44) Identifying the beneficiary of State aid, in the context of a corporate group, may indeed entail complex economic appraisals and it is settled case-law of the Court that the review of such appraisals is limited. It is namely confined to establishing that the rules of procedure and the rules relating to the duty to state reasons have been complied with, and to verifying the accuracy of the facts relied on, and that there has been no error of law, manifest error of assessment of the facts or misuse of powers. It is not for the EU Courts to substitute their own economic appraisal for that of the Commission.
45.      However, the Court has made it clear that the margin of discretion enjoyed by the Commission in conducting complex economic assessments, in particular in the field of State aid, does not imply that the EU judicature must refrain from reviewing the Commission’s interpretation of economic data. (45) Not only must the EU Courts, inter alia, establish whether the evidence relied on is factually accurate, reliable and consistent, but they must also establish 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. (46) As I have already had occasion to point out, the intensity of the judicial review of economic assessments actually depends on the degree of their complexity as well as on whether they entail policy or objective choices. Accordingly, the ‘marginal review of complex economic assessments’ standard should not become a general
formula that unduly limits the EU judicature from exercising a sufficiently intense degree of judicial review on entire categories of appraisals. (47) That is all the more so in the case of assessments carried out at the stage of determining the factors which contribute to establishing the existence of State aid within the meaning of Article 107(1) TFEU and in defining its scope, such as the identification of the undertaking benefiting from the aid.
46.      As the appellants themselves acknowledge, the General Court correctly outlined, in paragraphs 59 and 60 of the judgment under appeal, the limits of its judicial review in the cases before it, by making reference to the case-law recalled above.
1.      First submission: the General Court overstepped the limits of its judicial review regarding capital, organic and functional links
47.      The appellants submit, in essence, that the General Court’s conclusions as concerns capital, organic and functional links are not inconsistent with those drawn by the Commission in the decision at issue and that the judgment under appeal failed to identify a manifest error in the Commission’s assessments of those links.
48.      The present submission – which encompasses several complaints, some of them inadmissible, as I will illustrate below – is not, in my view, supported by a careful reading of that judgment.
49.      Contrary to what the appellants argue, it follows from the reasoning underlying paragraphs 63 to 107 of the judgment under appeal (48) that the General Court did not accept the Commission’s conclusion that, despite ‘certain functional, economic and organic links between Air France, KLM and [Air France-KLM]’ (recital 112 of the decision at issue), ‘KLM and Air France enjoy[ed] de facto  considerable functional, economic and organic autonomy, both vis-à-vis each other and vis-à-vis their parent company’ (recital 113 of the decision at issue). The General Court concluded, on the contrary, that, those links, whether examined separately or jointly, were factors indicating that those three entities could not be regarded as independent for the purpose of the aid measure concerned. (49)
50.      The appellants also err in claiming
that the General Court found no manifest error of assessment in the reasoning of the Commission or its conclusions. The General Court reviewed recitals 112 and 113 of the decision at issue and considered, in the light of the information contained in that decision as well as of the arguments put forward and the evidence submitted before it – of which the availability to the Commission at the time the decision at issue was adopted and of which the relevance has not been disputed by the appellants – (50) that the Commission’s findings concerning the intensity of the functional, economic and organic links between Air France and KLM vis-à-vis each other and their parent company were not sufficiently substantiated. It thus remained within the limits of its judicial review on the Commission’s complex economic assessments in the field of State aid, as outlined by the case-law recalled in point 45 of the present Opinion.
51.      The fact, emphasised by the appellants, that the General Court did not expressly mention the category of ‘manifest error of assessment’
until later in the judgment under appeal (51) – and only once – does not call that conclusion into question, at the risk of giving precedence to the General Court’s lexical choices over the substance of its reasoning.
52.      For the same reasons as those set out above, I am of the view that the appellants’ claim that the General Court substituted its own assessment for that of the Commission cannot be upheld.
53.      The General Court focused
on reviewing the Commission’s assessment of the economic, organic and functional links existing between Air France-KLM, Air France and KLM in the light of the arguments and evidence adduced before it and found that the Commission’s conclusions could not stand. In so far as that claim is based on the allegedly excessively detailed nature of the General Court’s analysis, that argument is overly simplistic and rests on an erroneous and restrictive conception of the role of the EU Courts in reviewing the Commission’s economic assessments. The fact that that review may be limited in scope does not mean that those Courts are not empowered, or even required, to carry it out thoroughly.
54.      In particular, contrary to what Air France-KLM and Air France argue, the General Court did not substitute its own assessment for that of the Commission regarding the cooperation between Transavia France and Transavia Netherlands, referred to in paragraph 82 of the judgment under appeal. In order to conclude that there was a degree of functional and commercial cooperation between those companies, notwithstanding the fact that each of them had its own licences, certificates, traffic rights, slots, assets, staff and management, the General Court did not rely exclusively on the fact that they both shared a brand and a website. It underlined the fact that ‘Transavia’ appeared on the market, as well as in the Air France-KLM group’s documents, in particular the 2019 and 2020 Universal Registration Documents, as a single operator, which constituted
the ‘low-cost’ segment of that group’s commercial activity. (52) In that regard, it should be borne in mind that unity of market behaviour is what typically characterises several legally independent entities as a single ‘economic unit’. (53)
55.      The remainder of the arguments raised by the appellants are, in my view, either unfounded or inadmissible, in that they tend to obtain from the Court a fresh assessment of the facts or of the evidence examined by the General Court, which, in the absence of proof of distortion, falls outside its jurisdiction. (54)
56.      First, it is true, as is highlighted by KLM, that, in paragraph 89 of the judgment under appeal, the General Court incorrectly relied on recital 41 of the decision at issue, which details the explanation given by the
Kingdom of the Netherlands of the functional links within the Air France-KLM group, and is not part of the Commission’s assessment. However, the assertion made by the Kingdom of the Netherlands that KLM and Air France were ‘functionally autonomous’ is endorsed by the Commission, (55) which, in its assessment, refers back extensively to those explanations. (56)
57.      Second, KLM’s argument that, within a corporate group a certain level of functional links is to be expected and that, despite some degree of coordination, subsidiaries may still operate autonomously, even within a single economic unit, is ineffective, since it is precisely the conclusion that KLM enjoyed such operational autonomy that the General Court considered to be unsubstantiated.
58.      Third, the appellants’ allegation that Air France-KLM’s veto and approval rights do not go beyond the customary prerogatives enjoyed by any parent company that controls its subsidiaries, even where factually accurate, is not, in my view, decisive for the question of which entity, within the Air France-KLM group, could be considered actually to benefit from the measure concerned, either directly or indirectly.
59.      Fourth, contrary to what the appellants contend, in paragraph 104 of the judgment under appeal, the General Court did not hold that the circumstance that commercial relations between Air France and KLM as well as between those subsidiaries and their parent company were conducted under ‘normal market conditions’ was only relevant for taxation purposes. Rather, it considered that such a circumstance was not sufficient to demonstrate that those entities had economic autonomy within the Air France-KLM group, having regard to the factors it had previously set out in paragraphs 100 to 103 of that judgment. (57) Moreover, as it is apparent from paragraph 105 of the judgment under appeal, the General Court considered that the measure concerned
had the effect of strengthening the financial position of the Air France-KLM group as a whole through the provision of significant amounts of liquidity not available under normal market conditions and the avoidance of KLM failure. Such an advantage was therefore linked more to the beneficial effects that restoring KLM liquidity and viability would have had on Air France-KLM and Air France than to the risk of the aid being passed on through transactions between those companies on non-market terms. Accordingly, the fact that such transactions were conducted under normal market conditions was not essential in the reasoning of the General Court.
60.      Fifth, KLM’s and Air France-KLM’s and Air France’s arguments seeking to challenge the aforementioned statement in paragraph 105 of the judgment under appeal on the effects of the measure concerned
on the Air France-KLM group as a whole are unsubstantiated and, in any case, inadmissible, in so far as they amount to asking the Court to review the assessment of facts and evidence carried out by the General Court, without invoking their distortion. (58) Regarding the assertion in paragraph 106 of that judgment that ‘KLM would probably not have been able to continue its activities and, therefore, would also have jeopardised the continuation of the activities carried out collectively with Air France’, which is also disputed by the appellants, I will simply point out that, according to the decision at issue, the measure concerned
was envisaged and authorised in order to address KLM’s acute liquidity shortage and to avoid its bankruptcy. (59) The General Court therefore did not err in finding that, without that measure, KLM would probably not have been able to carry on its activities, including those in coordination with Air France. (60)
61.      It follows from all the foregoing considerations that, in my view, the first submission put forward by the appellants, concerning the organic functional and economic links within the Air France-KLM group, must be rejected.
2.      Second submission: the General Court overstepped the limits of its judicial review regarding the agreements on the basis of which the measure concerned was granted
62.      The appellants, supported by the French Republic and the Kingdom of the Netherlands, contend that the General Court did not demonstrate that the Commission committed a manifest error of assessment when it concluded, in recital 114 of the decision at issue, that the safeguards contained in the agreements on the basis of which the measure concerned
was granted (61) made it possible to channel effectively and exclusively the actual benefit of that measure to KLM, in the same way as an allocation clause. That second submission, which comprises several different complaints, is directed against paragraphs 108 to 132 of the judgment under appeal.
63.      As stated above,
the existence of allocation clauses or contractual agreements accompanying the grant of State aid to the entity of a group of companies may allow the Commission to limit the scope of the beneficiary to that sole entity, which is singled out as a separate undertaking for the purposes of that aid. However, it is important to bear in mind that, as I have also stated above, that outcome depends on the actual content of such clauses or contractual arrangements and the overall circumstances of the case at hand.
64.      First, the appellants claim that the General Court erroneously focused, in paragraphs 112 to 118 of the judgment under appeal, on the role and prerogatives of Air France-KLM under the framework agreement and misinterpreted the nature of such involvement. They emphasise that Air France-KLM was a party to that agreement only in its capacity as KLM’s shareholder and to ensure KLM’s compliance with its obligations under the aid measure. That claim is, in my view, based on a misleading understanding of the reasoning of the General Court. (62)
65.      Contrary to what the appellants seem to imply, in paragraphs 112 to 118 of the judgment under appeal, the General Court did not seek to establish that Air France-KLM’s capacity as a party to the framework agreement enabled it to benefit directly from the aid in question, thereby thwarting the Netherlands authorities’ efforts to channel that aid solely to KLM. Rather, it considered that Air France-KLM’s involvement in the grant and the implementation of the measure concerned
showed that the role of that company was not just that of an intermediary, but that of an active contractual party. (63)
66.      In that context, it is understandable that the General Court, although criticised by the appellants for doing so, did not specify in greater detail the nature of the rights that Air France-KLM would have derived from its participation in the framework agreement – which appear to be mainly approval rights in the context of the fulfilment of the conditions imposed by the Netherlands authorities for the granting of the measure concerned. Such a specification was not needed for the purposes of the General Court’s reasoning, according to which the Commission failed to consider, or properly consider, Air-France-KLM’s active involvement (64) in the granting and the implementation (65) of the measure concerned, when determining the beneficiary of that measure.
67.      Second, the appellants argue that the contractual provisions included in the agreements on the basis of which the measure concerned
was granted – namely the clauses providing that the aid was to be used exclusively for KLM’s corporate needs, that on-lending to other parts of the Air France-KLM Group was prohibited, that the proceeds of the measure could not be used for the direct benefit of Air France-KLM and that a State Agent had to be appointed to ensure compliance with those obligations – prevented entities other than KLM from directly benefiting from the aid and also prevented any indirect leakage of the aid from KLM to other companies within the group. In drawing a different conclusion, the General Court substituted its own assessment for that of the Commission.
68.      First, the Commission claims that the General Court erred in analysing those provisions in isolation, and without looking at the effect of the measure concerned
as a whole. Such a claim is, in my view, unfounded. The General Court considered the contractual mechanisms referred to in the decision at issue both on an individual basis (see paragraphs 120, 122, 128 and 130 of the judgment under appeal) and overall and concluded that they did not support the conclusion that the sole beneficiary of the measure concerned was KLM (see paragraph 132 of the judgment under appeal).
69.      Second, the Commission contends that the General Court rejected those contractual mechanisms simply on the basis that they were not capable of preventing Air-France-KLM and Air France from benefiting from indirect advantages which do not constitute indirect aid but are, rather, at most, secondary economic effects. Similarly, KLM argues that the General Court failed to specify
the nature of such indirect advantages or to justify why the Commission should have deemed it likely or sufficiently plausible in its ex ante assessment that those advantages would materialise, therefore relying on hypothetical scenarios. Those complaints will be examined further in the analysis of the third ground of appeal in Cases C‑269/24 P and C‑289/24 P.
70.      Third, the Commission argues that the General Court failed to assess the combined effects of the aforementioned contractual mechanisms in the light of the corporate and governance structure of the Air France-KLM group. The Commission refers to recital 116 of the decision at issue, in which it explained that such a structure prevented the risk that the aid received by KLM may be transferred to Air France through financial or commercial cooperation agreements on advantageous terms. However, as stated in point 59 of the present Opinion, according to the General Court the effects of the measure concerned
on Air France-KLM and KLM did not depend on the possibility of the aid being passed on through transactions on non-market terms. Therefore, such a complaint
must also be rejected.
71.      Fourth, Air France-KLM and Air France claim that the General Court overlooked the discretionary complex economic assessment conducted by the Commission in Section 2.5.3. of the decision at issue, which shows the importance of contractual safeguards. In this respect, I note, on the one hand, that recitals 48 to 53 of that decision, included in the aforementioned section, simply contain the explanations provided by the Netherlands authorities regarding those safeguard measures and do not include any assessment by the Commission.(66) On the other hand, as
explained in point 68 of the present Opinion, the General Court took into account the contractual mechanisms referred to in the decision at issue and found that it was not sufficient to support the Commission’s conclusions on the scope of the beneficiary of the measure concerned.
72.      In the light of the foregoing, the second submission put forward by the appellants must also, in my view, be rejected.
3.      Third submission: the General Court committed several legal errors when considering the type of aid measure granted and the context in which it was granted
73.      The appellants, supported by the French Republic and the Kingdom of the Netherlands, argue that the General Court erroneously criticised the Commission for failing to take account, in its assessment of the measure concerned, of the Air France decision and the Air France-KLM and Air France decision. (67) That third submission is directed against paragraphs 140 to 146 of the judgment under appeal.
74.      First, the appellants contend that the General Court erred and contradicted itself when it faulted the Commission for not having examined further the Air France decision, while explicitly recognising, in paragraph 141 of the judgment under appeal, that the Commission had considered that decision not relevant for assessing the measure concerned.
75.      In this respect, I note, that it is clear from paragraph 144 of that judgment that, according to the General Court, while the Commission had referred to the Air France decision, it had failed to consider the cumulative effect of the measure concerned
and the measures which formed the subject matter of the Air France decision and the Air France-KLM and Air France decision, given that there was a chronological, structural and economic link between them. I do not see any contradiction in that reasoning.
76.      Moreover, the mere fact that the Commission had concluded that the aforementioned three measures had different beneficiaries – corresponding to different entities or configurations of entities belonging to the same group – does not in itself call into question its duty to examine their effects on the group position as a whole. When several entities benefiting from State aid operate on the market as a single unit, it would be artificial and contrary to the effectiveness of State aid control to consider, without further analysis, that, because that aid was aimed at each of those entities individually, there is no effect on the unit as a whole. (68)
77.      Second, the appellants argue that the General Court erred in criticising the Commission for failing to address the Air France-KLM and Air France decision, which was adopted after the Initial Decision, which has been annulled by the judgment of 19 May 2021. Given that, in accordance with the
case-law of the Court, following such an annulment, the Commission needed to place itself in the position it was in when it adopted the Initial Decision, the Commission was right not to take account of the aid covered by the Air France-KLM and Air France decision, which post-dated the point in time that was relevant for the decision at issue.
78.      In this respect, it is certainly true that the Court has iteratively affirmed that the procedure for replacing a measure that has been annulled may be resumed at the very point at which the illegality occurred. (69) However, that finding has, in my view, mostly procedural implications and cannot justify that, in reassessing the compatibility of State aid after the annulment of its previous decision, the Commission should not take into account a measure which, while not yet notified at the time of the adoption of the annulled decision, has very close links with that aid and is addressed to entities belonging to the same group of companies.
79.      Moreover, the Court has also clarified that, in order to comply with a judgment annulling a measure and to implement it fully, the institution concerned is required to have regard not only to the operative part of the judgment but also to the grounds indicating the specific reasons which underlie the finding of illegality contained in the operative part and which that institution must take into account when replacing the annulled measure. (70) In its judgment of 19 May 2021 annulling the Initial Decision, the General Court, whilst not referring to the Air France-KLM decision, which had just been adopted, emphasised the particular vigilance that the Commission must exercise in examining the links between companies belonging to the same group where there are grounds to fear the effects on competition of an accumulation of State aid within the same group, (71) and criticised the Commission for having failed to state reasons
with regard to the possibility that the aid previously granted to Air France and authorised in the Air France decision could be used, if only in part, for KLM’s needs. (72) In that context, the General Court rejected the same line of reasoning defended by the Commission in its appeal, namely that, since KLM was not one of the beneficiaries of the State aid granted to Air France and Air France-KLM, it was not required to provide any explanation of the cumulative effects of those different measures on the position of the France-KLM group as a whole. (73)
80.      I therefore consider that, in the specific circumstances of the present cases, the General Court did not commit an error in law in concluding that it was incumbent upon the Commission to take account of the Air France decision and the Air France-KLM and Air France decision, as part of the context of the measure concerned.
4.      Fourth submission: the General Court did not overstep the limits of its judicial review regarding the Commission’s balancing of the factors considered
81.      The appellants contend that none of the elements relied on by the General Court relates to the assessment made in recital 117 of the decision at issue, in which the Commission, exercising its broad discretion in assessing complex economic issues, weighed up the relevant factors previously identified in that decision in order to decide whether the existence of control and functional, economic and organic links between KLM, Air France-KLM and Air France meant that the latter two companies also benefited from the aid measure, despite the structure and governance of the group and the contractual measures contained in the agreements on the basis of which the aid was granted and implemented. In the appellants’ view, the General Court failed to find a manifest error of assessment in such a balancing exercise and therefore substituted its own assessment for that of the Commission.
82.      In that regard, I would simply point out, first, that recital 117 of the decision at issue is more a conclusion drawn by the Commission on the basis of its previous assessments set out in recitals 112 to 116 than a reasoned balancing of the various relevant factors (74) and, second, that the General Court came to the conclusion that the Commission’s analysis of those factors was flawed at each stage, which inevitably undermined the balancing of those factors.
5.      Conclusions on the second ground of appeal
83.      For the reasons set out above, the second ground of appeal in each of the present joined cases should, in my view, be rejected.
C.      Third ground of appeal in Cases C‑269/24 P and C‑289/24 P
84.      Air France-KLM and Air France, as well as KLM, claim that the General Court failed correctly to distinguish between indirect benefits and secondary economic effects. Although not structured as a separate ground of appeal, their arguments overlap with those raised by the Commission and presented in point 69 of the present Opinion. The appellants’ claims are directed against paragraphs 147 to 158 of the judgment under appeal, where the General Court rejected the Commission’s argument that the measure concerned
had, at most, only ‘mere secondary economic effects’ in respect of Air France-KLM and Air France, which could not be classified as a direct or indirect advantage for them.
85.      The concept of indirect advantages is indeed a rather elusive one. The case-law on this aspect is sparse. (75) Conversely, paragraph 116 of the Notice on the notion of State aid explains that indirect advantages should be distinguished from mere secondary economic effects that are inherent in almost all State aid measures. For that purpose, the foreseeable effects of the measure should be examined from an ex ante point of view. Thus, an indirect advantage is present if the measure is designed in such a way as to channel its secondary effects ‘towards identifiable undertakings or groups of undertakings’. Footnote 181 to that notice explains that, by contrast, a mere secondary economic effect in the form of increased output, which does not amount to indirect aid, can be found where the aid is simply channelled through an undertaking, for example a financial intermediary, which passes it on in full to the aid beneficiary.
86.      I must confess that I find the Notice on the notion of State aid to be a practically useful but constitutionally tricky tool, for the reason that it is an instrument issued within the ambit of Article 107(1) TFEU defining an objective concept whose interpretation is incumbent upon the EU Courts, whereas soft law should be confined to the other paragraphs
of Article 107 TFEU, the application of which falls specifically within the Commission’s competences.
87.      Tricky as it may be, the EU Courts tend to rely on that notice, including in the judgment under appeal, (76) and have held that it is, like any soft-law instrument designed to specify the criteria that the Commission intends to apply in the exercise of its discretion, binding on that institution. (77) Most recently, the Court specifically referred to the definition contained in the aforementioned paragraph 116 of the Notice on the notion of State aid, finding
that the Commission has a duty to investigate indirect advantages in addition to direct advantages and cannot thus use a specific argument to disprove a direct advantage without simultaneously investigating whether it created an indirect advantage elsewhere. (78)
88.      It is therefore clear that indirect advantages require a sort of de novo analysis on whether the criteria listed in Article 107(1) are complied with in relation to separate beneficiaries with respect to the direct ones. However, when a State aid measure confers an advantage on a single economic unit, the analysis that has to be carried out is thus by definition limited to such a unit and there is no need to examine the indirect advantages in respect of the single entities composing that unit.
89.      In the present joined cases, the General Court found that the Commission erred in excluding Air France-KLM and Air France from the scope of the beneficiary of the measure concerned
given that the relevant factors examined indicated that they constituted, for the purposes of the measure concerned, a single economic unit with KLM and that the agreements accompanying the grant of that measure were not sufficient, particularly in view of the level of integration within the Air France-KLM group, to exclude those three entities from benefiting from it as a whole. The General Court added that Air France-KLM and Air France had, at least, benefited from indirect advantages. (79) The arguments put forward by the appellants in their third ground should therefore be declared ineffective.
90.      In any case, in my view,
those arguments cannot possibly succeed. The advantages indicated by the General Court – namely the ‘foreseeable ex ante effects’ of (i) improving the financial situation and the financial stability of Air France-KLM and of the group as a whole, including Air France; (ii) strengthening the capacity of Air France-KLM to raise funds on the financial markets for the needs of its subsidiaries, including Air France; and (iii) ensuring the continuity of KLM’s activities, one of the main subsidiaries of the group, and avoiding the risk of its failure spreading to Air France-KLM and to the group as a whole (80) – which specifically target the Air France-KLM group as well as its holding company and its subsidiary Air France cannot be considered, in the light of all the circumstances of the case, mere secondary economic effects which can be equated with those which can be derived by the commercial partners of the beneficiary of State aid.
91.      I am therefore of the view that the third ground of appeal in Cases C‑269/24 and C‑289/24 should also be rejected.
D.      Conclusions on the appeals
92.      For the reasons set out above, the present appeals should, in my view, be dismissed.
Accordingly, I propose that the Court order the Commission, KLM, Air France-KLM and Air France to pay the costs incurred by Ryanair relating to the present appeals, and the French Republic, the Kingdom of the Netherlands and the Commission to bear their own costs, pursuant to Article 138(1) and Article 140(1) of the Rules of Procedure of the Court of Justice, which apply to the procedure on appeal by virtue of Article 184(1) of those rules.
V.      Conclusion
93.      In the light of all the foregoing considerations, I suggest that the Court dismiss the appeals,
order the European Commission, Koninklijke Luchtvaart Maatschappij NV, Air France-KLM S.A. and Société Air France S.A. to pay the costs incurred by Ryanair DAC relating to the present appeals, and the French Republic, the Kingdom of the Netherlands and the European Commission to bear their own costs, pursuant to Article 138(1) and Article 140(1) of the Rules of Procedure of the Court of Justice, which apply to the procedure on appeal by virtue of Article 184(1) of those rules.
1      Original language: English.
2      See judgment of 28 September 2023, Ryanair v Commission (C‑321/21 P, EU:C:2023:713, paragraph 23).
3      See judgment of 30 May 2024, Ryanair v Commission (C‑353/21 P, EU:C:2024:437, paragraphs 29 and 30).
4      State Aid SA.57116 (2020/N) – The Netherlands – COVID-19: State loan guarantee and State loan for KLM.
5      Apart from the measure concerned in the present appeals, two other measures are concerned. The first is individual aid granted by the French Republic to Air France in the form of (i) a State loan guarantee covering 90% of a loan of EUR 4 billion granted by a consortium of banks and (ii) a shareholder loan of up to EUR 3 billion, approved on 4 May 2020 by Commission Decision C(2020) 2983 final on State Aid SA.57082 (2020/N) – France – COVID-19 – Temporary Framework 107(3)(b) – Guarantee and shareholder loan for Air France (‘the Air France decision’). The General Court annulled that decision by judgment of 20 December 2023, Ryanair and Malta Air v Commission (Air France; COVID-19) (T‑216/21, EU:T:2023:822). The appeals brought by the Commission (C‑166/24 P) and Air France-KLM and Air France (C‑192/24 P) have been suspended. The second measure is individual aid granted by the French Republic in the form of recapitalisation of Air France and Air France-KLM SA (‘Air France-KLM’), approved on 5 April 2021 by Commission Decision C(2021) 2488 final on State Aid SA.59913 – France – COVID-19 – Recapitalisation of Air France and the Air France-KLM holding (‘the Air France-KLM and Air France decision’), annulled by the General Court in the judgment of 20 December 2023, Ryanair and Malta Air v Commission (Air France-KLM and Air France; COVID-19) (T‑494/21, EU:T:2023:831). The appeals lodged by the Commission (Case C‑167/24 P) and Air France-KLM and Air France (Case C‑193/24 P) against that judgment have also been suspended.
6      Air France-KLM owns, directly or indirectly, 93.84% of KLM’s share capital, representing 99.7% of the economic rights, that is to say, dividend rights, and 49% of voting rights. At the time of adoption of Decision C(2020) 4871 final on State Aid SA.57116 (2020/N) – The Netherlands – COVID-19: State loan guarantee and State loan for KLM (‘the Initial Decision’), the French Republic had a share of 14.3% in Air France-KLM and the Kingdom of the Netherlands had a share of 14%.
7      Hereinafter references to KLM and Air France should be understood as references to, respectively, KLM and its subsidiaries and Air France and its subsidiaries.
8      The judgment under appeal, paragraph 5.
9       See Initial Decision above-mentioned in footnote 6.
10      The judgment under appeal, paragraph 7.
11      T‑643/20, EU:T:2021:286 (‘the judgment of 19 May 2021’).
12      The judgment under appeal, paragraph 9.
13      In support of the action, Ryanair relied on four other pleas in law, alleging, in essence, (i) infringement of the provisions of the FEU Treaty and of the general principles of law relating to non-discrimination, the freedom to provide services and the freedom of establishment,
(ii) misapplication of Article 107(3)(b) TFEU, (iii) infringement of its procedural rights and (iv) infringement of the duty to state reasons.
14      See, to that effect, judgments of 23 March 2006, Enirisorse (C‑237/04, EU:C:2006:197, paragraphs 26, 27 and 36), and
of 20 November 2025, Staten genom Sjöfartsverket (C‑401/24, EU:C:2025:902, paragraph 21).
15      See judgment of 20 November 2025, Staten genom Sjöfartsverket (C‑401/24, EU:C:2025:902, paragraph 21).
16      See, inter alia, judgments of 21 March 1991, Italy v Commission (C‑303/88, EU:C:1991:136, paragraph 57),
and of 29 July 2024, Koiviston Auto Helsinki v Commission (C‑697/22 P, EU:C:2024:641, paragraph 79).
17      See, inter alia, judgment of 20 November 2025, Staten genom Sjöfartsverket (C‑401/24, EU:C:2025:902, paragraph 21 and the case-law cited).
18      See judgment of 12 July 1984, Hydrotherm Gerätebau (170/83, EU:C:1984:271, paragraph 11), and, recently, judgment of 13 February 2025, ILVA (Fine for an infringement of the GDPR) (C‑383/23, EU:C:2025:84, paragraph 22 and the case-law cited).
19      See judgments of 14 November 1984, Intermills v Commission (323/82, EU:C:1984:345, paragraph 11);
of 10 January 2006, Cassa di Risparmio di Firenze and Others (C‑222/04, EU:C:2006:8, paragraphs 112 to 114);
and of 16 December 2010, AceaElectrabel Produzione v Commission (C‑480/09 P, ‘the judgment in AceaElectrabel’, EU:C:2010:787, paragraphs 47 to 51). See also judgment of 22 June 2006, Belgium and Forum 187 v Commission (C‑182/03 and C‑217/03, EU:C:2006:416, paragraph 102). With regard to the case-law of the General Court see, inter alia, judgment of 17 March 2015, Pollmeier Massivholz v Commission (T‑89/09, EU:T:2015:153, paragraph 122 and the case-law cited). In the area of subsidies, see judgment of 28 November 2024, Hengshi Egypt Fiberglass Fabrics and Jushi Egypt for Fiberglass Industry v Commission (C‑269/23 P and C‑272/23 P, EU:C:2024:984, paragraph 156).
20      Opinion of Advocate General Jacobs in Cassa di Risparmio di Firenze and Others (C‑222/04, EU:C:2005:655, footnote 26).
21      Commission practice likewise supports that approach.
See, for instance,
Commission Decision (EU) 2017/1283 of 30 August 2016 on State aid SA.38373 (2014/C) (ex 2014/NN) (ex 2014/CP) implemented by Ireland to
Apple (notified under document C(2017) 5605) (OJ 2017 L 187, p. 1), recitals 416 to 418, and Commission Decision (EU) 2016/1699 of 11 January 2016 on the excess profit exemption State aid scheme SA.37667 (2015/C) (ex 2015/NN) implemented by Belgium (notified under document C(2015) 9837) (OJ 2016 L 260, p. 61), recitals 183 to 186. The General Court judgments confirming the latter decision on, inter alia, the use of the concept of economic unit in defining the scope of the beneficiary of State aid is currently under appeal before the Court
of Justice (see judgments of 20 September 2023, Dow Silicones and Others v Commission (T‑858/16 and T‑867/16, EU:T:2023:570, paragraphs 111 to 119), and of
20 September 2023, Magnetrol International and Others v Commission (T‑263/16 RENV, T‑265/16, T‑311/16, T‑319/16, T‑321/16, T‑343/16, T‑350/16, T‑444/16, T‑800/16 and T‑832/16, EU:T:2023:565, paragraphs 141
to 156).
22      The Commission cited judgments of 14 October 2004, Pollmeier Malchow v Commission (T‑137/02, EU:T:2004:304, paragraphs 50 and 51);
of 8 September 2009, AceaElectrabel v Commission (T‑303/05, EU:T:2009:312, paragraph 101); and the judgment of 19 May 2021, paragraph 47.
23      C‑457/00, ‘the judgment in Verlipack’, EU:C:2003:387.
24      The Commission mentioned the following links:
(i) Air France and KLM are part of the same group of companies, which is controlled by Air France-KLM; (ii) the companies in the Air France-KLM group pursue a parallel economic activity (that is to say, activities related to the air transport of passengers and goods); (iii) Air France-KLM helps its subsidiaries coordinate some of their activities, in particular in the area of sales and price and revenue management; (iv) Air-France-KLM provides general holding support functions to its subsidiaries in some albeit limited areas; (v) Air France-KLM provides certain financial services to its subsidiaries and may (occasionally) raise capital on the markets for the benefit of its subsidiaries; (vi) Air-France-KLM has certain veto rights over KLM’s business plans, budgets and the remuneration, appointment and dismissal of senior management; (vii) Air-France-KLM has an approval right in respect of KLM’s financing transactions exceeding EUR 150 million.
25      The Commission noted that Air France-KLM did not provide financial support to KLM and that the financing costs and operational expenses it made for the benefit of its subsidiaries were compensated by payments and fees on an arm’s-length basis.
26      These safeguards are enumerated in recital 53 of the decision at issue.
27      The judgment under appeal, paragraphs 63 to 107.
28      The judgment under appeal, paragraph 76.
29      The judgment under appeal, paragraph 96.
30      The judgment under appeal, paragraphs 100 to 104.
31      The judgment under appeal, paragraphs 108 to 132.
32      The judgment under appeal, paragraphs 140 to 146.
33      See recitals 107 and 108 of the decision at issue and paragraph 55 of the judgment under appeal. As concerns the reference to the judgment in Verlipack, see, in more detail,
points 28 to 32 of the present Opinion.
34      In paragraph 66 of the judgment in AceaElectrabel, the Court rejected the arguments put forward by the appellants in the case giving rise to that judgment, that the Commission would not have taken the view that they were to be regarded as a single economic unit under the rules applicable to restrictive practices or concentrations.
35      See recitals 109 and 110 of the decision at issue.
36      T‑371/94 and T‑394/94, EU:T:1998:140.
37      T‑111/01 and T‑133/01, EU:T:2005:166.
38      The judgment under appeal, paragraphs 137 and 138.
39      Commission Notice on the notion of State aid as referred to in Article 107(1) [TFEU] (OJ 2016 C 262, p. 1). Point 11 of that
notice recalls the Court’s judgments applying the concept of ‘single economic unit’ in the field of State aid. Reference is made to the judgment in AceaElectrabel, paragraphs 47 to 55, and judgment of 10 January 2006, Cassa di Risparmio di Firenze and Others (C‑222/04, EU:C:2006:8, paragraph 112).
40      See, by analogy, judgment of 6 October 2021, Sumal (C‑882/19, EU:C:2021:800, paragraph 47), in which the Court clarified that ‘the same parent company may be part of several economic units made up, depending on the economic activity in question, of itself and of different combinations of its subsidiaries all belonging to the same group of companies’.
41      The judgment under appeal, paragraphs 56 and 134.
42      Moreover, it must be noted that the facts of the case giving rise to the judgment in Verlipack are peculiar and very different from those of the present joined cases. The two loans at issue in that case were granted in order to finance the investment of the German group Heye in the Belgian group Verlipack. It seems that Heye, the borrower of such loans, and Verlipack, their actual beneficiary, did not belong to the same group of companies at the time the aid measure was granted, their relationship being limited to technical assistance; see recitals 12 and 107 of Commission Decision 2001/856/EC of 4 October 2000 concerning State aid to Verlipack, Belgium. (OJ 2001 L 320, p. 28).
43      See judgment of 21 December 2016, Commission v Aer Lingus and Ryanair Designated Activity (C‑164/15 P and C‑165/15 P, EU:C:2016:990, paragraph 68).
44      See paragraph 63 of the judgment in AceaElectrabel. Until such judgment, that statement had appeared only in the case-law of the General Court; see judgment of 8 September 2009, AceaElectrabel v Commission (T‑303/05, EU:T:2009:312, paragraph 101 and the case-law cited).
45      See judgment of 2 September 2010, Commission v Scott (C‑290/07 P, EU:C:2010:480, paragraph 64).
46      See, in the field of State aid, inter alia, judgments of 2 September 2010, Commission v Scott (C‑290/07 P, EU:C:2010:480, paragraph 65), and of 20 September 2018, Spain v Commission (C‑114/17 P, EU:C:2018:753, paragraph 104).
47      See my Opinion in Deutsche Lufthansa v Ryanair and Others (C‑457/23 P, EU:C:2025:802, points 18 and 19).
48      In paragraphs 63 to 77 of the judgment under appeal, a thorough review of the Commission analysis in the light of the data on which it was based and of the arguments and evidence submitted by Ryanair was carried out. It concluded that those links indicated, on the one hand, that Air France-KLM actually exercised control by involving itself directly or indirectly in the management of Air France and KLM, taking part in the economic activity carried on by them, and, on the other hand, that there was, at the level of that group, a centralised decision-making procedure and a certain degree of coordination, at least as regards the way in which certain important decisions were taken. As concerns the functional links between Air France-KLM, Air France and KLM, at the end of an equally thorough analysis, carried out in paragraphs 78 to 97 of the judgment under appeal, the General Court considered that the conclusion reached by the Commission that Air France and KLM enjoyed functional autonomy was called into question by several elements, namely (i) the power of veto of Air France-KLM on remuneration, appointment and dismissal of the managers of its subsidiaries, (ii) its involvement in significant or strategic decisions on financing, investment and fleet operations, and (iii) the existence of a certain degree of functional integration and cooperation between Air France and KLM and their respective subsidiaries. Finally, regarding the economic links between Air France-KLM, Air France and KLM, the General Court found, in paragraphs 98 to 107 of the judgment under appeal, that the Commission’s conclusion that those three entities enjoyed de facto economic autonomy was also contradicted by a number of elements arising from the decision at issue and from the evidence submitted before it.
49      See, respectively, paragraphs 77, 97 and 107 of the judgment under appeal.
50      Namely the 2019 and 2020 Universal Registration Documents for Air France-KLM, filed with the Autorité des marchés financiers (Financial Markets Authority, France) pursuant to Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market, and repealing Directive 2003/71/EC (OJ 2017 L 168, p. 12) (‘the 2019 and 2020 Universal Registration Documents’). The appellants dispute the importance given by the General Court to those documents. In that regard, it must be recalled that, according to settled case-law, the General Court has exclusive jurisdiction to find and assess the facts and, in principle, to examine the evidence it accepts in support of those facts (see, inter alia, judgment of 9 June 2016, PROAS v Commission (C‑616/13 P, EU:C:2016:415, paragraph 52). Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. Save where the clear sense of the evidence has been distorted, that appraisal does not therefore constitute a point of law which is subject as such to review by the Court of Justice (see, in particular, judgment of 6 April 2006, General Motors v Commission, C‑551/03, EU:C:2006:229, paragraph 52).
51      See paragraph 159 of the judgment under appeal, where the General Court drew its conclusion on the issue of the beneficiary of the aid measure concerned.
52      See paragraph 82 of the judgment under appeal. In paragraph 102 of that judgment, the General Court also highlighted the fact that the Commission had acknowledged, in the context of a measure of organisation of procedure, that a joint aircraft order had been negotiated by Air France-KLM on behalf of KLM, Transavia Netherlands and Transavia France.
53      See, inter alia, judgment of 22 January 2026, Semural Waste & Energy (C‑812/24, EU:C:2026:38, paragraph 44 and the case-law cited).
54      See, inter alia, judgment of 23 November 2023, Ryanair and Airport Marketing Services (C‑758/21 P, EU:C:2023:917, paragraph 124).
55      Recital 113 of the decision at issue affirms that KLM and Air France ‘enjoy de facto considerable functional … autonomy …’.
56      (‘enjoy de facto considerable functional … autonomy …’).
57      Namely, (i) the fact that Air France-KLM generated its revenue solely from its subsidiaries, (ii) the fact that that holding company acted in the interests of its subsidiaries by raising funds to meet their needs on financial markets on the basis of the financial position of the Air France-KLM group as a whole and (iii) the fact that there are cost-sharing agreements between Air France and KLM, as well as activities carried out collectively by them.
58      The General Court based its assertions on the effects of the measure concerned
at the level of the Air France-KLM group mainly on the 2019 and 2020 Universal Registration Documents submitted before it.
59      See recitals 12 and 13 of the decision at issue and paragraph 105 of the judgment under appeal.
60      The same can be said as concerns the conclusion drawn by the General Court in paragraph 126 of the judgment under appeal.
61      The measure at issue was to be granted on the basis, inter alia, of the following contracts, described in recital 18 of the contested decision: (i) a framework agreement concluded between the Netherlands State, KLM and Air France-KLM (‘the framework agreement’), (ii) a revolving credit facility agreement concluded between KLM and a consortium of banks; and (iii) a State loan agreement between the Netherlands State and KLM.
62      In paragraphs 112 to 118 of the judgment under appeal, the General Court noted that Air France-KLM was a contracting party to the framework agreement and that, as such, it assumed ‘contractual rights and obligations’ vis-à-vis its contractual partners in the context of the grant and implementation of the measure concerned. Besides the approval of the financing under the measure concerned (paragraph 113), the General Court mentioned the agreement given for a restructuring plan for KLM, the amendment of certain provisions of the agreements concluded between the Kingdom of the Netherlands, Air France-KLM and KLM at the time of approval of the merger between Air France and KLM in 2004 and the implementation of other conditions concerning, inter alia, employment conditions, network quality and sustainability (paragraphs 114 to 117 of the judgment under appeal).
63      See paragraph 153 of the judgment under appeal, in which the General Court intended to distinguish the case at hand from that giving rise to the judgment in Verlipack.
64      See paragraphs 118 and paragraph 119 of the judgment under appeal.
65      Air France-KLM and Air France appear to dispute the accuracy of the Court’s statement that Air France-KLM played any role in the implementation of the measure in question, without, however, claiming that there was an error in the interpretation of the relevant contractual provisions, let alone a distortion of their content.
66      Such an assessment is found in recitals 114 to 117 of the decision at issue.
67      See footnote 5 to the present Opinion.
68      As regards the granting of State aid to entities belonging to corporate groups active in a number of Member States, the General Court recalled also that the Commission and the Member States have a reciprocal duty of sincere cooperation and that they have to work together in good faith with a view to ensuring full compliance with the provisions of the FEU Treaty (see paragraph 164 of the judgment under appeal).
69      See, inter alia, judgment of 3 October 2000, Industrie des poudres sphériques v Council (C‑458/98 P, EU:C:2000:531, paragraph 82), cited by the Commission in its written pleadings.
70      See judgment of 3 October 2000, Industrie des poudres sphériques v Council (C‑458/98 P, EU:C:2000:531, paragraph 81).
71      See the judgment of 19 May 2021, paragraph 48.
72      See the judgment of 19 May 2021, paragraphs 42, 43 and 72.
73      See the judgment of 19 May 2021, paragraph 37.
74      Recital 117 of the decision at issue states: ‘On balance, despite the links between KLM, Air France and [Air France-KLM], the Commission considers that, overall, on the basis of the body of evidence set out in section 2.5 and assessed in … recitals 112 to 116, the KLM subsidiary is sufficiently legally and financially autonomous to be considered a distinct economic unit from [Air France-KLM] and Air France for the purposes of applying State aid rules to the notified aid measure. …’
75      See, in particular, judgments of 19 September 2000, Germany v Commission (C‑156/98, EU:C:2000:467, paragraphs 26 and 27);
of 13 June 2002, Netherlands v Commission (C‑382/99, EU:C:2002:363, paragraphs 55 to 69); and of 28 July 2011, Mediaset v Commission (C‑403/10 P, EU:C:2011:533, paragraphs 73 to 83).
76      The judgment under appeal, paragraph 152.
77      See judgment of 10 April 2024, Danske Slagtermestre v Commission (T‑486/18 RENV, EU:T:2024:217, paragraph 73).
78      See judgment of 16 October 2025, Netherlands v Commission (C‑59/24 P, EU:C:2025:798, paragraphs 91 and 92).
79      This is evident from the overall reasoning of the General Court and, in particular, from paragraphs 125 to 127 and 153 of the judgment under appeal, where the General Court discharged the Commission’s argument on the existence of mere secondary economic effects by relying on the judgment in AceaElectrabel and the control exercised by Air France-KLM over its subsidiaries, as well as from paragraphs 154 to 156.
80      The judgment under appeal, paragraphs 125 to 127, 155 and 156.