62015TJ0492
JUDGMENT OF THE GENERAL COURT (Fourth Chamber, Extended Composition)
12 April 2019 (
*1
)
(Action for annulment — State aid — Measures implemented by Germany in favour of Frankfurt Hahn airport and airlines using that airport — Decision regarding the measures in favour of Frankfurt Hahn airport as State aid compatible with the internal market and finding no State aid in favour of airlines using that airport — Lack of individual concern — Lack of direct concern — Inadmissibility)
In Case T‑492/15,
Deutsche Lufthansa AG, established in Cologne (Germany), represented by A. Martin-Ehlers, lawyer,
applicant,
v
European Commission, represented by K. Herrmann, T. Maxian Rusche and S. Noë, acting as Agents,
defendant,
supported by
Land Rheinland-Pfalz (Germany), represented by Professor C. Koenig,
and by
Ryanair DAC, formerly Ryanair Ltd, established in Dublin (Ireland), represented by G. Berrisch, lawyer, and B. Byrne, Solicitor,
interveners,
APPLICATION under Article 263 TFEU for the annulment of Commission Decision (EU) 2016/789 of 1 October 2014 on the State aid SA.21121 (C29/08) (ex NN 54/07) implemented by Germany concerning the financing of Frankfurt Hahn airport and the financial relations between the airport and Ryanair (OJ 2016 L 134, p. 46),
THE GENERAL COURT (Fourth Chamber, Extended Composition),
composed of H. Kanninen, President, J. Schwarcz, C. Iliopoulos, L. Calvo-Sotelo Ibáñez-Martín (Rapporteur) and I. Reine, Judges,
Registrar: S. Bukšek Tomac, Administrator,
having regard to the written part of the procedure and further to the hearing on 9 July 2018,
gives the following
Judgment
I. Background to the dispute
1
The applicant, Deutsche Lufthansa AG, is an airline established in Germany, whose main activity is transporting passengers. Its main airport base is that of Frankfurt-am-Main (Germany).
2
Frankfurt Hahn airport is located in Germany, in Land Rheinland-Pfalz (‘the Land’), approximately 120 km west of the city of Frankfurt-am-Main and 115 km from Frankfurt Main airport. Until 1992, there was a military airbase at the site on which Frankfurt Hahn airport is located. That base was later converted into a civil airport. Holding Unternehmen Hahn GmbH & Co. KG (‘Holding Hahn’), a public private partnership in which the Land participated, acquired ownership of the infrastructure from the Federal Republic of Germany on 1 April 1995.
3
On 1 January 1998, Flughafen Frankfurt/Main GmbH (‘Fraport’), which was operating and managing the international Frankfurt Main airport, purchased 64.90% of the shares in Flughafen Hahn GmbH & Co. KG Lautzenhausen (‘Flughafen Hahn’), the company operating Frankfurt Hahn airport.
4
In 1999, Frankfurt Hahn airport attracted its first low-cost carrier, Ryanair Ltd (now Ryanair DAC, ‘Ryanair’). The first agreement between Flughafen Hahn and Ryanair entered into force on 1 April 1999 (‘the 1999 Ryanair agreement’). The 1999 Ryanair agreement had a duration of 5 years and related to the airport charges payable by Ryanair.
5
In August 1999, Fraport acquired 73.37% of the shares of Holding Hahn and 74.90% of the shares of its general partner Holding Unternehmen Hahn Verwaltungs GmbH.
6
On 31 August 1999, the Land and Fraport concluded an agreement in accordance with which Fraport undertook to enter into a profit and loss transfer agreement. That agreement was approved on the same date, confirmed by a notarial deed on 24 November 2000 and entered into force on 1 January 2001. Under that agreement, Fraport was entitled to all the profits generated by the operator of Frankfurt Hahn airport and, in return, was required to cover all the latter’s losses (‘the 2001 profit and loss transfer agreement’).
7
Subsequently, Holding Hahn and Flughafen Hahn merged to form Flughafen Hahn GmbH, now Flughafen Frankfurt-Hahn GmbH (‘FFHG’ or ‘Frankfurt Hahn’), 26.93% of the capital of which was held by the Land and 73.07% by Fraport.
8
Until 11 June 2001, 100% of the shares in Fraport were held by public shareholders. On that date, Fraport was floated on the stock exchange and 29.71% of its shares were sold to private shareholders, with 70.29% of the shares remaining with the public shareholders.
9
On 16 October 2001, the Land approved the schedule of airport charges for Frankfurt Hahn airport, which entered into force retroactively on 1 October 2001 (‘the 2001 schedule’).
10
On 14 December 2001 and 9 January 2002, respectively, Fraport and the shareholders of FFHG decided to increase the capital of FFHG to finance the most urgent part of an airport infrastructure improvement programme (‘the 2001 capital increase’). The 2001 capital increase, in the amount of EUR 27 million, was subscribed by Fraport and the Land, which, on 9 January 2002, contributed EUR 19.7 million and EUR 7.3 million, respectively.
11
On 14 February 2002, a second agreement was concluded between FFHG and Ryanair (‘the 2002 Ryanair agreement’). It replaced the 1999 Ryanair agreement.
12
On 27 November 2002, Land Hesse (Germany), Fraport and FFHG concluded an agreement on the development of Frankfurt Hahn airport. That agreement provided for a second capital increase of FFHG, at the time of which Land Hesse would become the third shareholder of FFHG.
13
On 22 March 2004, a shareholders’ agreement concerning the shareholdings of Fraport, the Land and Land Hesse in the capital of FFHG (‘the shareholders’ agreement’) was prepared. Fraport, the Land and Land Hesse signed that agreement on 30 March 2005.
14
For the purpose of executing the shareholders’ agreement, a EUR 19.5 million capital increase of FFHG was agreed in order to continue the investment programme referred to in paragraph 10 above. Between 2004 and 2009, Fraport, the Land and Land Hesse injected, respectively, EUR 10.21 million, EUR 540000 and EUR 8.75 million into FFHG in several instalments. In addition, the Land and Land Hesse undertook to inject an additional EUR 11.25 million as a capital reserve, in accordance with a payment schedule extending to 2009.
15
Following the capital increase described in paragraph 14 above (‘the 2004 capital increase’), amounting to a total of EUR 42 million, Fraport held 65% of the shares of FFHG, as against 17.5% each for Land Hesse and the Land.
16
The shareholders’ agreement also provided that any further debt contracted by FFHG should be covered by Fraport, the Land and Land Hesse in proportion to their shareholdings in FFHG and that the 2001 profit and loss transfer agreement should be extended until 2014. In order to comply with those obligations, Fraport and FFHG entered into a new profit and loss transfer agreement on 5 April 2004 (‘the 2004 profit and loss transfer agreement’). The 2004 profit and loss transfer agreement entered into force on 2 June 2004, following its approval at the general meeting of Fraport’s shareholders by the three-quarters majority required by the shareholders’ agreement. Under the terms of the 2004 profit and loss transfer agreement, Fraport undertook to cover all the losses incurred by FFHG between 2004 and 2009.
17
From 1997 to 2004, the Land paid direct grants to the operator of Frankfurt Hahn (‘the direct grants by the Land’). The direct grants by the Land paid until 2000 were intended to finance investments in airport infrastructure, whereas those paid from 2001 were intended to finance personnel costs for security checks. The Land collects an airport security tax from all departing passengers at Frankfurt Hahn airport, through the airlines using that airport, and transfers the entire revenue from that tax, as well as funds from its general budget, to the operator of Frankfurt Hahn airport as compensation for carrying out security checks (‘the compensation for the security checks’).
18
On 4 November 2005, an amendment to the 2002 Ryanair agreement was made (‘the 2005 Ryanair agreement’).
19
Between 2003 and 2006, the Commission of the European Communities received several complaints concerning alleged State aid granted by Fraport, the Land and Land Hesse to Ryanair and FFHG. On 22 September 2003 and 1 June 2006, one of the complainants sent additional information to the Commission.
20
On 26 April 2006, a new schedule of airport charges for Frankfurt Hahn was approved by the Land (‘the 2006 schedule’). It entered into force on 1 June 2006.
21
By letters of 25 September 2006 and 9 February 2007, the Commission requested information from the Federal Republic of Germany, which complied with that request by letters of 20 December 2006 and 29 June 2007.
22
By letter of 17 June 2008, the Commission notified the Federal Republic of Germany of its decision to initiate the formal investigation procedure provided for in Article 88(2) of the EC Treaty (now Article 108(2) TFEU), in connection with State aid concerning the financing of Frankfurt Hahn and its relations with Ryanair (‘the 2008 opening decision’). The decision inviting interested parties to submit their comments was published in the Official Journal of the European Union on 17 January 2009 (OJ 2009 C 12, p. 6).
23
On 31 December 2008, Fraport sold its entire shareholding in FFHG to the Land. As a result of that sale, first, the Land held a majority shareholding of 82.5% in FFHG, the remaining 17.5% still being held by Land Hesse, and, secondly, the 2004 profit and loss transfer agreement was terminated.
24
In the context of the formal investigation procedure, the Commission received comments from, inter alia, the applicant and Ryanair; those comments were communicated to the Federal Republic of Germany.
25
On 1 July 2009, the Federal Republic of Germany sent its comments and additional information to the Commission.
26
On 13 July 2011, the Commission decided to initiate a second formal investigation procedure concerning financing measures for FFHG taken between 2009 and 2011. The decision inviting interested parties to submit their comments was published in the Official Journal of the European Union on 21 July 2012 (OJ 2012 C 216, p. 1). As a result, there have been two coexisting procedures.
27
By letter of 20 February 2012, the Commission requested the Federal Republic of Germany to provide it with further information regarding the 2008 opening decision. The Federal Republic of Germany complied with that request by letter of 16 April 2012.
28
By letter of 27 July 2012, the Commission sent a further request for additional information to the Federal Republic of Germany, which complied with that request by letter of 4 September 2012.
29
The Federal Republic of Germany undertook to inject capital into FFHG in order to refinance the loans of FFHG intended to finance the infrastructure measures decided upon by the public authorities between 1997 and 2012, which were not covered by the profit and loss transfer agreements, capital increases or other grants (‘the final capital increase’).
30
By letter of 25 February 2014, the Commission informed the Federal Republic of Germany of the adoption, on 20 February 2014, of the Guidelines on State aid to airports and airlines (OJ 2014 C 99, p. 3, ‘the 2014 Guidelines’).
31
By letters of 23 March and 4 April 2014, the Commission requested further information from the Federal Republic of Germany. By letters of 17 and 24 April and 9 May 2014, the Federal Republic of Germany complied with that request.
32
On 15 April 2014, a notice was published in the Official Journal of the European Union inviting Member States and interested parties to submit comments on the application of the 2014 Guidelines to the present case. The applicant submitted comments, which the Commission sent to the Federal Republic of Germany by letter of 26 August 2014. By letter of 3 September 2014, the Federal Republic of Germany informed the Commission that it had no comments to make.
33
On 1 October 2014, the Commission adopted Decision (EU) 2016/789 on the State aid SA.21121 (C29/08) (ex NN 54/07) implemented by Germany concerning the financing of Frankfurt Hahn airport and the financial relations between the airport and Ryanair (OJ 2016 L 134, p. 46, ‘the contested decision’).
II. Contested decision
34
In the contested decision, the Commission examined, in the first place, whether there was State aid, within the meaning of Article 107(1) TFEU, as regards, first, the measures in favour of Frankfurt Hahn airport (see recitals 292 to 420 of the contested decision), secondly, the measures in favour of Ryanair (see recitals 421 to 456, 464 to 484 and 580 of the contested decision) and, thirdly, the measures in favour of the airlines using Frankfurt Hahn airport, that is to say the 2001 schedule and the 2006 schedule (see recitals 457 to 463, 485 to 494 and 581 of the contested decision). In the second place, having taken the view that some of the measures in favour of Frankfurt Hahn airport constituted State aid, the Commission examined their compatibility with the internal market (see recitals 497 to 579 of the contested decision).
A. Measures in favour of Frankfurt Hahn
35
In the first place, the Commission found that the 2001 profit and loss transfer agreement did not constitute State aid. The Commission considered, in essence, that that agreement had been definitively concluded before the judgment of 12 December 2000, Aéroports de Paris v Commission (T‑128/98, EU:T:2000:290), that is to say at a time when the public authorities could legitimately consider that the financing measures with regard to Frankfurt Hahn airport did not constitute State aid.
36
In the second place, the Commission examined whether the 2001 capital increase constituted State aid. In that regard, first of all, the Commission considered that the 2001 capital increase, on the one hand, had been financed by the general budget of the Land and, therefore, through State resources and, on the other hand, was attributable to the State. Moreover, the Commission considered that Fraport’s participation in that capital increase, on the one hand, was carried out through State resources, since Fraport was a predominantly publicly owned undertaking whose resources were subject to direct or indirect State control, and, on the other hand, was attributable to the State, since Fraport considered itself as a ‘dependent, publicly held undertaking’ and the management of FFHG had been in direct negotiations with the Land and Land Hesse, and the Land had directly induced Fraport to participate in the 2001 capital increase. Furthermore, the Commission considered that the 2001 capital increase had conferred a selective advantage on FFHG, since the decision to recapitalise was not consistent with the market economy operator principle. Finally, the Commission considered that, in particular because of the size of Frankfurt Hahn airport and its proximity to other European Union airports, the 2001 capital increase was liable to affect trade between Member States and to distort competition.
37
In the third place, the Commission examined together, as regards Fraport, the 2004 capital increase and the 2004 profit and loss transfer agreement, since the conclusion of that agreement, which was to last until 31 December 2014, was a prerequisite for the 2004 capital increase. The Commission noted that the 2004 profit and loss transfer agreement was to be approved by Fraport by a majority of at least three quarters of the votes of the general meeting of shareholders, which could not be attained without the shareholdings of that company’s private shareholders, since the public shareholders held only approximately 70% of its shares. The Commission inferred from this that the public shareholders could not control the decision relating to Fraport’s approval of the 2004 profit and loss transfer agreement and, consequently, the decision relating to the 2004 capital increase, which were thus not attributable to the State.
38
The Commission therefore considered that the 2004 profit and loss transfer agreement and Fraport’s share in the 2004 capital increase did not constitute State aid.
39
As regards the shares of the Land and Land Hesse in the 2004 capital increase, first of all, the Commission noted that those shares had been financed from their respective general budgets, that is to say through State resources, and that those shares were attributable to the State. Next, the Commission considered that those shares did not comply with the market economy operator principle and, as a result, conferred a selective advantage on FFHG. Finally, the Commission recalled that any selective economic advantage granted to FFHG was liable to distort competition and affect trade between Member States.
40
The Commission therefore concluded that the shares of the Land and Land Hesse in the 2004 capital increase constituted State aid.
41
In the fourth place, the Commission examined whether the compensation for the security checks constituted State aid.
42
In that regard, first of all, the Commission pointed out that, under German law, only the costs related to the provision and maintenance of spaces and premises necessary for carrying out security checks could be reimbursed by the Land to the operator of Frankfurt Hahn airport. Accordingly, the Commission considered that since the cost of the security checks assumed by the Land went beyond the reimbursable costs, the operator of Frankfurt Hahn airport had been relieved of a responsibility which it would normally bear and, as a result, had been granted a selective advantage.
43
Next, the Commission took into account that the amount of the compensation for the security checks paid by the Land to the operator of Frankfurt Hahn airport included not only the revenue from the airport security tax collected from the airlines, but also funds from the general budget of the Land. From this, the Commission concluded that that compensation was financed through State resources and was attributable to the State.
44
Moreover, the Commission recalled that any selective economic advantage granted to the operator of Frankfurt Hahn airport was liable to distort competition and affect trade between Member States.
45
Finally, the Commission considered that, in so far as the amounts paid by the Land to the operator of Frankfurt Hahn airport for the security checks exceeded the revenue from the airport security tax collected from the airlines, the public funding granted to the operator of Frankfurt Hahn airport as compensation for the security checks constituted State aid.
46
In the fifth place, as regards the direct grants by the Land, on the one hand, the Commission considered that those made from 1997 to 2000, intended to finance investments in airport infrastructure, did not constitute State aid, since they had been decided upon before the judgment of 12 December 2000, Aéroports de Paris v Commission (T‑128/98, EU:T:2000:290). On the other hand, it found that the direct grants by the Land which, between 2001 and 2004, had financed personnel costs for security checks were to be examined as possible State aid, since they had covered costs which should have been borne by the operator of Frankfurt Hahn airport.
47
In that regard, first of all, the Commission pointed out that the direct grants by the Land paid between 2001 and 2004, which amounted to EUR 1.93 million, were financed through State resources and were therefore attributable to the State. Next, since those grants covered costs which should have been borne by the operator of Frankfurt Hahn airport and were made only to the latter, the Commission considered that those grants had conferred a selective economic advantage on that operator. Finally, the Commission recalled that any selective economic advantage granted to the operator of Frankfurt Hahn airport was liable to distort competition and affect trade between Member States. The Commission therefore concluded that the grants in question constituted State aid.
48
In the sixth and last place, the Commission considered that the final capital increase, intended to refinance the loans taken out by FFHG to finance infrastructure improvements at Frankfurt Hahn airport, between 1997 and 2012, constituted State aid and referred, in that regard, to its considerations concerning the share of the Land and Land Hesse in the 2004 capital increase and the compensation for the security checks.
49
Accordingly, the Commission considered, first, that the investment aid granted unlawfully to FFHG, that is the 2001 capital increase, the contributions of the Land and Land Hesse to the 2004 capital increase and the final capital increase, was compatible with the internal market, since it fulfilled the criteria referred to in paragraph 61 of the Community guidelines on financing of airports and start-up aid to airlines departing from regional airports (OJ 2005 C 312, p. 1). Secondly, the Commission considered that the operating aid granted unlawfully to the operator of Frankfurt Hahn airport before 4 April 2014, that is the compensation for the security checks and the direct grants by the Land, was compatible with the internal market, since it fulfilled the criteria set out in paragraph 137 of the 2014 Guidelines.
B. Measures in favour of Ryanair
50
As a preliminary point, in order to assess the existence of State aid to Ryanair, the Commission considered that it was necessary to determine whether the 1999 Ryanair agreement, the 2002 Ryanair agreement and the 2005 Ryanair agreement were consistent with the market economy operator principle when they were concluded. In that regard, the Commission noted that, in accordance with the 2014 Guidelines, for the purpose of applying the market economy operator principle, it was necessary to assess ex ante the incremental profitability of each agreement concluded between Ryanair and the operator of Frankfurt Hahn, taking into account all the relevant incremental revenues and costs associated with each of those agreements.
51
The Commission considered, in essence, that the 1999 Ryanair agreement, the 2002 Ryanair agreement and the 2005 Ryanair agreement complied with the market economy operator principle, in so far as they were likely to contribute to the profitability of Frankfurt Hahn airport because the expected incremental revenues exceeded the expected incremental costs. The Commission concluded that the three agreements in question did not confer any advantage on Ryanair and, therefore, did not involve aid.
C. Schedules of airport charges
52
The Commission considered that the 2001 schedule and the 2006 schedule were consistent with the market economy operator principle in that they had gradually contributed, from an ex ante perspective, to the profitability of Frankfurt Hahn airport.
53
Accordingly, the Commission considered that the 2001 schedule and the 2006 schedule did not confer any economic advantage on the airlines using Frankfurt Hahn airport which they would not have obtained under normal market conditions and that they therefore did not constitute State aid.
D. Operative part of the contested decision
54
The operative part of the contested decision is worded as follows:
‘Article 1
1.   The State aid, unlawfully put into effect by Germany in breach of Article 108(3) [TFEU] in favour of [FFHG] between 2001 and 2012 by means of capital increases in 2001 amounting to EUR 27 million, capital increases in 2004 amounting to EUR 22 million and direct grants by [the Land] … is compatible with the internal market.
2.   The capital increase in 2004 by Fraport … and the profit and loss transfer agreement of 2004 do not constitute aid within the meaning of Article 107(1) [TFEU].
Article 2
1.   The agreement between Ryanair and [FFHG], which entered into force on 1 April 1999, does not constitute aid within the meaning of Article 107(1) [TFEU].
2.   The agreement between Ryanair and [FFHG] dated 14 February 2002 does not constitute aid within the meaning of Article 107(1) [TFEU].
3.   The “Agreement Ryanair/[FFHG] — Delivery of aircraft 6 to 18 — year 2005 to year 2012” of 4 November 2005 does not constitute aid within the meaning of the Article 107(1) [TFEU].
Article 3
The schedules of airport charges, which entered into force on 1 October 2001 and on 1 June 2006, do not constitute aid within the meaning of … Article 107(1) [TFEU].
Article 4
This Decision is addressed to the Federal Republic of Germany.’
III. Procedure and forms of order sought
55
By application lodged at the Registry of the General Court on 26 August 2015, the applicant brought the present action.
56
The Commission lodged its defence at the Court Registry on 13 November 2015.
57
The reply and the rejoinder were lodged at the Court Registry on 5 February and 31 March 2016, respectively.
58
By document lodged at the Court Registry on 5 October 2015, Ryanair plc applied for leave to intervene in support of the form of order sought by the Commission. By letter lodged at the Court Registry on 23 October 2015, Ryanair plc informed the Court, in accordance with Article 144(8) of the Rules of Procedure of the General Court, that it was withdrawing its application for leave to intervene.
59
By order of 18 November 2015, the President of the Sixth Chamber of the Court, first, ordered the removal of Ryanair plc from Case T‑492/15 as an applicant for leave to intervene and, secondly, ordered that company to bear its own costs.
60
By documents lodged at the Court Registry on 23 October and 17 November 2015, respectively, Ryanair and the Land applied for leave to intervene in support of the form of order sought by the Commission. By orders of 26 February 2016, Deutsche Lufthansa v Commission (T‑492/15, not published, EU:T:2016:126), and of 17 March 2016, Deutsche Lufthansa v Commission (T‑492/15, not published, EU:T:2016:193), the President of the Sixth Chamber of the Court allowed the interventions of the Land and Ryanair, respectively.
61
The interveners, the Land and Ryanair, lodged their statements in intervention at the Court Registry on 12 March and 20 May 2016, respectively.
62
The applicant’s observations on the statements in intervention of the Land and Ryanair were lodged at the Court Registry on 2 May and 18 July 2016, respectively.
63
By letters lodged at the Court Registry on 7 April and 15 July 2016, respectively, the Commission stated that it had no observations to make on the statements in intervention of the Land and Ryanair.
64
Following a change in the composition of the Court, in the interests of the proper administration of justice, the President of the Court, pursuant to Article 27(3) of the Rules of Procedure, reallocated the case to a new Judge-Rapporteur, who was assigned to the First Chamber.
65
By letter lodged at the Court Registry on 29 April 2016, the applicant put forward additional considerations presented as new pleas in law. The Land, Ryanair and the Commission lodged their observations on those considerations at the Court Registry on 19, 26 and 29 August 2016, respectively.
66
On 6 June 2016, by way of measures of organisation of procedure, the Court (First Chamber) put a written question to the applicant. The applicant responded to that request within the prescribed period.
67
As a result of the change in the composition of the chambers of the Court, pursuant to Article 27(5) of the Rules of Procedure, the Judge-Rapporteur was assigned to the Fourth Chamber, to which the present case was therefore assigned.
68
On 6 October 2016, the applicant lodged an offer of further evidence at the Court Registry.
69
The Commission, the Land and Ryanair lodged observations on the offer of further evidence at the Court Registry on 28 October and 4 and 14 November 2016, respectively.
70
By letter lodged at the Court Registry on 11 April 2017, the applicant once again put forward additional considerations presented as new pleas in law. On 12 May 2017, the Land lodged its observations on those considerations at the Court Registry. The Commission and Ryanair lodged their observations on those considerations at the Court Registry on 2 June 2017.
71
On 26 May 2017, the applicant lodged at the Court Registry an offer of further evidence.
72
On 23 June 2017, the Land and Ryanair lodged at the Court Registry their observations on the applicant’s offer of further evidence. The Commission lodged its observations on that offer of further evidence at the Court Registry on 28 June 2017.
73
On 15 March 2018, on a proposal from the Fourth Chamber, the Court decided, pursuant to Article 28 of the Rules of Procedure, to refer the present case to a chamber sitting in extended composition.
74
On 22 May 2018, by way of measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, the Court (Fourth Chamber, Extended Composition) put written questions to the applicant and to the Commission on the measures in favour of Frankfurt Hahn and questions to all the parties on the measures in favour of Ryanair. By documents lodged at the Court Registry on 8 and 21 June 2018, the parties replied to those written questions.
75
On 5 June 2018, Ryanair requested that Ms R., the lead author of the report from the consultancy firm Oxera drawn up for Ryanair and cited in the contested decision and in the parties’ written pleadings, be allowed to speak at the hearing in order to answer any questions from the Court and be permitted to express herself in English.
76
On 15 and 22 June 2018, the applicant, the Commission and the Land lodged with the Court Registry their observations on the request by Ryanair referred to in paragraph 75 above. The Land agreed to that request, while the other parties raised objections, in particular to the use of English by Ms R. The President of the Fourth Chamber referred that request to the Chamber.
77
By order of 6 July 2018, Deutsche Lufthansa v Commission (T‑492/15, not published, EU:T:2018:434), Ms R. was allowed to speak in English at the hearing in the presence and under the control of Ryanair’s representatives.
78
On 7 July 2018, the Commission lodged at the Court Registry a corrigendum of its written answer to the questions put by the Court on 22 May 2018.
79
At the hearing on 9 July 2018, the main parties presented oral argument and answered the questions put by the Court. Ms R. did not speak.
80
The applicant claims that the Court should:
–
annul the contested decision;
–
order the Commission to pay the costs.
81
The Commission and the Land contend that the Court should:
–
dismiss the action as inadmissible and, in any event, as unfounded;
–
order the applicant to pay the costs.
82
In the rejoinder, the Commission also requested the deletion of the references in the reply to the Commission’s defence lodged in the case which gave rise to the judgment of 27 April 2017, Germanwings v Commission (T‑375/15, not published, EU:T:2017:289).
83
Ryanair submits that the Court should:
–
dismiss the application;
–
order the applicant to pay the costs.
IV. Law
84
In support of its action, the applicant raises, in essence, seven pleas in law, alleging, first, a procedural error; second and third, errors in the assessment of the facts; fourth, manifest contradictions in the contested decision and; fifth to seventh, infringements of Article 107 TFEU. By two separate pleadings, the applicant also puts forward considerations which it presents as new pleas in law.
85
Without formally raising an objection of inadmissibility, the Commission puts forward three pleas of inadmissibility. First, it alleges that the application is incoherent. Secondly, in the alternative, it argues that the applicant has no interest in bringing an action for annulment of the contested decision, in so far as it concerns the measures in favour of Frankfurt Hahn. Thirdly, and also in the alternative, it argues that the applicant does not have locus standi.
86
The Land raises, for its part, an additional plea of inadmissibility, alleging that the action is out of time.
87
The Commission and the interveners also argue that the action is, in any event, unfounded.
88
The applicant claims that the action is admissible and well founded. It adds, first, that the Land no longer has any interest in the outcome of the dispute and has therefore lost its status as intervener and, secondly, that the defence is inadmissible.
89
In the present case, the Court considers that it is necessary to examine, first, the admissibility of the defence, secondly, whether the Land retains its status as intervener and, thirdly, the admissibility of the action. It is only if the action is admissible that, fourthly, the Court will rule, if necessary, on its merits.
A. The admissibility of the defence
90
The applicant submits that the Commission’s defence is inadmissible in its entirety, on the ground that it contains incoherent and, consequently, unintelligible reasoning. According to the applicant, in that pleading the Commission disregarded the structure of the contested decision for no apparent reason, changed the order of the elements to be examined, arbitrarily excluded elements of the assessment of certain measures and called into question established facts. Moreover, paragraph 2.2.2.1 of that pleading is preceded by a title which does not correspond to its content.
91
The Commission claims that that plea of inadmissibility should be rejected.
92
Under Article 81(1)(c) of the Rules of Procedure, the defence must contain the pleas in law and arguments relied on. It follows that, in order to guarantee legal certainty and the sound administration of justice, such a pleading is admissible only if the basic legal and factual particulars on which it is based are indicated, at least in summary form, coherently and intelligibly in the pleading itself (judgment of 5 March 2014, HP Health Clubs Iberia v OHIM — Shiseido (ZENSATIONS), T‑416/12, not published, EU:T:2014:104, paragraph 18).
93
In the present case, the pleas and arguments relied on by the Commission follow from the wording of the defence with a sufficient degree of clarity and precision. Thus, it is clear from that pleading that the Commission, on the one hand, disputes the admissibility of the action, on the ground of the lack of coherence of the application and the applicant’s lack of interest in bringing proceedings and lack of locus standi (point 1) and, on the other hand, takes the view that the contested decision is well founded, in so far as it concerns the measures in favour of Ryanair (point 2), the measures in favour of Frankfurt Hahn (point 3) and the schedules of charges (point 4). Even assuming that it is true that the Commission failed to adhere to the structure of the contested decision, failed to refer to all the facts which the applicant considers relevant, called into question allegedly established facts and failed to ensure that the content of a paragraph was consistent with its heading, those facts in no way detract from the clarity and coherence of that statement. It should also be noted that, in the reply, the applicant was able to identify the arguments put forward in the defence and to respond to them.
94
The plea of inadmissibility based on the allegedly incoherent nature of the defence can therefore only be rejected.
B. The intervention of the Land
95
In response to the written questions put by the Court by way of measures of organisation of procedure and the oral questions put by the Court at the hearing, the applicant argued that the Land no longer had a direct, present interest in the result of the case, in so far as it had sold its shareholding in FFHG in the summer of 2017, after the order of 26 February 2016, Deutsche Lufthansa v Commission (T‑492/15, not published, EU:T:2016:126), by which the President of the Sixth Chamber of the Court had granted it leave to intervene in support of the form of order sought by the Commission. The Land therefore lost its status as intervener.
96
The Commission and the intervener dispute the applicant’s arguments.
97
Under the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, which applies to proceedings before the General Court by virtue of the first paragraph of Article 53 of the Statute, any person establishing an interest in the result of a case, save in cases between Member States, between institutions of the Union or between Member States and institutions of the Union, is to have the right to intervene in that case. An interest in the result of the case for the purposes of Article 40 of the Statute of the Court of Justice of the European Union means a direct, present interest in the grant of the particular form of order sought that the application to intervene is designed to support (order of 10 January 2006, Diputación Foral de Álava and Gobierno Vasco v Commission, T‑227/01, EU:T:2006:3, paragraphs 4 and 15). That present interest must remain until the outcome of the case (see, to that effect, judgment of 13 September 2010, Greece and Others v Commission, T‑415/05, T‑416/05 and T‑423/05, EU:T:2010:386, paragraphs 64 and 65).
98
It follows that the granting to the Land of leave to intervene in support of the form of order sought by the Commission, by order of 26 February 2016, Deutsche Lufthansa v Commission (T‑492/15, not published, EU:T:2016:126), does not preclude a fresh examination of the admissibility of its intervention at the stage of the judgment (see, to that effect, judgment of 8 July 1999, Hüls v Commission, C‑199/92 P, EU:C:1999:358, paragraph 52).
99
In the present case, it should be noted that, in paragraph 13 of the order of 26 February 2016, Deutsche Lufthansa v Commission (T‑492/15, not published, EU:T:2016:126), the President of the Sixth Chamber of the Court indeed noted that the Land was one of the ‘main shareholders’ of FFHG.
100
It must, however, be borne in mind that, in an action for annulment of a decision by which the Commission classifies certain measures adopted by an infra-State body as not constituting State aid or declares them compatible with the internal market, the infra-State body which adopted those measures has an interest in the result of the case for the purposes of Article 40 of the Statute of the Court of Justice of the European Union. The judgment of the Court in such a dispute may result in the classification of those measures being called into question and, thus, produce legal effects capable of affecting the particular interests of the infra-State body which adopted those measures, inter alia by calling into question its power to exercise its competences as it sees fit (order of 4 February 2015, Grandi Navi Veloci v Commission, T‑506/14, not published, EU:T:2015:102, paragraphs 12 to 15).
101
However, in paragraph 13 of the order of 26 February 2016, Deutsche Lufthansa v Commission (T‑492/15, not published, EU:T:2016:126), the President of the Sixth Chamber found that the Land had demonstrated an interest in the result of the case, on the ground, in particular, of the interest which a territorial entity such as the Land had in intervening in a dispute relating to the legality of a decision declaring that several measures to which it had contributed not only as a shareholder of FFHG but also through the award of grants were compatible with the internal market.
102
Moreover, in paragraph 14 of the order of 26 February 2016, Deutsche Lufthansa v Commission (T‑492/15, not published, EU:T:2016:126), the President of the Sixth Chamber, in concluding that the Land had an interest in the result of the case, also held that it was necessary to take into account that the annulment of the contested decision called into question the efforts made by the Land since the 1990s to create an airport intended to relieve Frankfurt Main airport and to develop the Hunsrück region in Germany.
103
In those circumstances, it must be held that the Land retains an interest in the result of the case and, consequently, has not lost its status as intervener on account of the sale of its shares in FFHG.
C. Admissibility of the action
1.
The lack of coherence of the application
104
In its defence, the Commission, supported by Ryanair, argues that the application does not satisfy the formal requirements laid down in Article 76(d) of the Rules of Procedure. According to the Commission, the application does not coherently identify the pleas in law relied on. First, the part of the application in which those pleas are described refers only to application of the private investor test and thus only partially covers the alleged problems posed by the contested decision and described in the preceding parts of that application. Those pleas therefore refer exclusively to Article 2 of the contested decision, according to which the Commission has, by applying the private investor test, excluded the existence of State aid to Ryanair.
105
Secondly, the part of the application in which the pleas relied on are described is neither coherent nor intelligible, in so far as it relates to an allegedly inaccurate finding of facts and to the allegedly erroneous assessment of those facts when applying the private investor test. Indeed, the statement contained in that part is confined to a mere general claim with no explanation other than an overall reference to the rest of the application.
106
The applicant claims that this plea of inadmissibility should be rejected.
107
Under Article 76(d) of the Rules of Procedure, all applications must contain the subject matter of the proceedings, the pleas in law and arguments relied on and a summary of those pleas in law. Irrespective of any question of terminology, that information must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application, if necessary without any further information. In order to guarantee legal certainty and the sound administration of justice, it is necessary, for an action to be admissible in the light of Article 76(d) of the Rules of Procedure, that the basic legal and factual particulars on which it is based be indicated, at least in summary form, coherently and intelligibly in the application itself (see judgments of 12 May 2016, Italy v Commission, T‑384/14, EU:T:2016:298, paragraph 38 (not published) and the case-law cited, and of 27 April 2017, Germanwings v Commission, T‑375/15, not published, EU:T:2017:289, paragraph 23 and the case-law cited).
108
In the present case, it must be stated that the structure of the application is unusual. The application contains a presentation of the background to the dispute and the subject matter of the action (point 1), a summary of some of the complaints relied on (point 2), a detailed statement of all the complaints relied on (points 3 to 9), a point relating to the admissibility of the action (point 10) and brief considerations relating to the ‘merits of the action’ (point 11).
109
Nevertheless, it is sufficiently clear from the application that the applicant seeks the annulment in full of the contested decision and raises in support of that application seven separate pleas. Contrary to what might be suggested by its heading, the ‘Merits of the action’ section is not intended to set out exhaustively and restrictively all the pleas in the application. On the contrary, that part confines itself, in essence, to pointing out that some of the complaints relied on fall within the ambit of the Court’s judicial review.
110
It must also be noted that, as the applicant observes, the Commission, in its defence, identified the pleas relied on in the present case and disputed each of them in detail.
111
It follows that the wording of the application contains a sufficiently clear, precise and coherent statement of the pleas in law and claims of the action for the Commission to prepare its defence and the Court to rule on that action.
112
In those circumstances, the plea of inadmissibility based on the allegedly incoherent nature of the application must be rejected.
2.
The applicant’s lack of locus standi
113
The Commission, supported by the interveners, argues, in the alternative, that the applicant does not have locus standi under the fourth paragraph of Article 263 TFEU. The Commission raises two arguments in support of that plea of inadmissibility, alleging, first, the applicant’s lack of direct and individual concern and, second, the non-regulatory nature of the contested decision.
114
According to the fourth paragraph of Article 263 TFEU, any natural or legal person may, under the conditions laid down in the first and second paragraphs of that article, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and which does not entail implementing measures.
115
The fourth paragraph of Article 263 TFEU therefore distinguishes three situations in which an action for annulment brought by a natural or legal person may be declared admissible and it is necessary to examine whether one of those situations actually exists in the present case in order to adopt a position on the present plea of inadmissibility.
116
At the outset, it must be stated that, as is apparent from Article 4 of the contested decision, that decision is addressed solely to the Federal Republic of Germany and not to the applicant. This is the case because the procedure for reviewing State aid is, in view of its general scheme, a procedure initiated in respect of the Member State responsible for granting the aid (judgments of 24 March 2011, Freistaat Sachsen and Land Sachsen-Anhalt v Commission, T‑443/08 and T‑455/08, EU:T:2011:117, paragraph 50, and of 12 November 2015, HSH Investment Holdings Coinvest-C and HSH Investment Holdings FSO v Commission, T‑499/12, EU:T:2015:840, paragraph 28). The present action cannot therefore be declared admissible on the basis of the first situation provided for in the fourth paragraph of Article 263 TFEU.
117
In those circumstances, the present action can be declared admissible, pursuant to the second and third situations provided for in the fourth paragraph of Article 263 TFEU, only if the contested decision is of direct and individual concern to the applicant or if the contested decision is of direct concern to the applicant and that decision constitutes a regulatory act which does not entail implementing measures (see, to that effect, judgments of 19 December 2013, Telefónica v Commission, C‑274/12 P, EU:C:2013:852, paragraph 19; of 27 February 2014, Stichting Woonpunt and Others v Commission, C‑132/12 P, EU:C:2014:100, paragraph 44; and of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 59).
118
In the present case, it is necessary to examine, in the light of the second and third situations provided for in the fourth paragraph of Article 263 TFEU, the applicant’s standing to challenge the contested decision in so far as it concerns, on the one hand, the measures in favour of Frankfurt Hahn and Ryanair (see paragraphs 119 to 187 below) and, on the other hand, the schedules of airport charges (see paragraphs 188 to 212 below).
(a)
The applicant’s standing to challenge the contested decision in so far as it concerns the measures in favour of Frankfurt Hahn and Ryanair
119
The Commission submits that the applicant does not have standing to challenge the contested decision in so far as it concerns the measures in favour of Frankfurt Hahn and Ryanair either on the basis of the second situation provided for in the fourth paragraph of Article 263 TFEU or on the basis of the third situation provided for in that provision.
120
In the present case, the Court considers that it is necessary to examine in turn the two situations referred to in paragraph 119 above.
(1) The second situation provided for in the fourth paragraph of Article 263 TFEU
121
The Commission submits that the applicant has not established that it is directly and individually concerned by, in the first place, the measures in favour of Frankfurt Hahn and, in the second place, the measures in favour of Ryanair.
122
In the first place, the Commission recalls that Article 1 of the contested decision concerns the granting of measures in favour of Frankfurt Hahn. However, the applicant, which does not operate an airport, has not explained how such measures concern it as an airline.
123
The applicant submits that its competitor Ryanair benefited from a substantial transfer of the measures in favour of Frankfurt Hahn, which the Commission and the interveners dispute. In its documents lodged at the Court Registry on 29 April 2016, the applicant puts forward in that regard two additional considerations, presented as new pleas in law, which the Commission and the interveners claim are inadmissible.
124
In the second place, the Commission, supported by the interveners, argues that the applicant failed to establish that it was directly and individually concerned by the contested decision, in so far as that decision related to the measures in favour of Ryanair. On the one hand, the existence of a competitive relationship with the recipient of the aid is not sufficient to demonstrate that the applicant is directly concerned by the contested decision. On the other hand, in order to establish its individual concern, the applicant, in its application, merely relied on the fact that it had lodged a complaint with the Commission relating to State aid, although that fact is not sufficient to establish that the applicant is individually concerned by the contested decision.
125
The Land adds that the applicant cannot, in order to establish its individual concern, merely rely on the existence of an alleged competitive relationship with the recipient of aid. It is for the applicant to establish the existence of a specific competitive relationship, making it possible to distinguish it individually from ordinary competitors of the alleged recipient of the aid. In the present case, for example, the applicant could have provided specific proof that the alleged aid was systematically used by Ryanair in order to be able to offer, for given air routes on which the applicant had until then operated profitably, aggressive pricing having the effect, in the medium or long term, of reducing its profit margin to the point of threatening its existence. However, the applicant failed to discharge its burden of proof in that regard. It did not even designate the relevant markets. Moreover, the air routes concerned were served by many competitors, which, according to the case-law, dilutes the effects of the measures in question to the point of excluding, in principle, the existence of any substantial effect on the applicant’s position on the market.
126
The applicant disputes the arguments of the Commission and the Land. The applicant relies, first, on its status as a complainant and, consequently, on its status as an interested party, within the meaning of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] (OJ 1999 L 83, p. 1), which it considers of paramount importance; secondly, on the fact that its locus standi was never called into question in the proceedings before the German courts to which it has been a party since 2006 and which relate to State aid granted to Ryanair and; thirdly, on the fact that the direct and indirect financing of Ryanair by FFHG has a substantial impact on competition and, consequently, on the applicant in particular. In support of the latter argument, the applicant produced, inter alia, two new documents, namely extracts from Commission Decision (EU) 2016/2069 of 1 October 2014 concerning measures SA.14093 (C76/2002) implemented by Belgium in favour of Brussels South Charleroi Airport and Ryanair (OJ 2016 L 325, p. 63) (Annex K 83) and a Ryanair press release of March 2017 (Annex K 84). Fourthly, the applicant claims that the Land’s argument relating to the lack of evidence of a specific competitive relationship between the applicant and Ryanair is inadmissible on the ground that it was not raised by the Commission.
127
In the present case, the Court considers that, before determining whether the applicant has established that it was directly and individually concerned by the contested decision in so far as that decision related to the measures in favour of Frankfurt Hahn and Ryanair, it is appropriate to rule on the admissibility, on the one hand, of Annexes K 83 and K 84 and, on the other hand, of the Land’s line of argument that the applicant’s position on the market was not substantially affected.
(i) Admissibility of Annexes K 83 and K 84
128
The Commission, supported by the interveners, recalls, in essence, that further evidence cannot be produced after the closure of the written part of the procedure, but can be produced before the closure of its oral part, provided that the delay in its presentation is justified. However, the applicant has not justified the production of that new evidence after the two exchanges of pleadings.
129
It should be noted in that regard that, under Article 85(3) of the Rules of Procedure, it is only ‘exceptionally [that the main parties may] produce or offer further evidence before the oral part of the procedure is closed or before the decision of the General Court to rule without an oral part of the procedure, provided that the delay in the submission of such evidence is justified’.
130
However, on the one hand, it must be noted that a document such as the extracts from Decision 2016/2069, to which the applicant refers, comes within the Commission’s decision-making practice and is not, therefore, evidence strictly speaking for the purposes of inter alia Article 85 of the Rules of Procedure. A party is entitled to refer to that practice before the Court, even when, as in the present case, it post-dates the proceedings before the Commission (see, to that effect, judgments of 9 February 2017, International Gaming Projects v EUIPO — adp Gauselmann (TRIPLE EVOLUTION), T‑82/16, not published, EU:T:2017:66, paragraphs 17 and 19, and of 26 October 2017, Alpirsbacher Klosterbräu Glauner v EUIPO (Klosterstoff), T‑844/16, EU:T:2017:759, paragraph 57).
131
On the other hand, it must be noted that the late submission, under Article 85 of the Rules of Procedure, of the evidence offered is, exceptionally, justified when that evidence was obtained by the party lodging it only after the oral part of the written procedure was closed.
132
It must be stated that Ryanair’s press release, which is contained in Annex K 84, is subsequent to the lodging of the reply, on 5 February 2016. Its production as further evidence with the document of 26 May 2017 is therefore justified, on an exceptional basis.
133
Consequently, Annexes K 83 and K 84 must be declared admissible.
(ii) Admissibility of the line of argument that there was no substantial effect on the applicant’s position on the market
134
Under the fourth paragraph of Article 40 of the Statute of the Court of Justice of the European Union and Article 142 of the Rules of Procedure, an intervention must be limited to supporting in full or in part the form of order sought by one of the main parties. According to the case-law, an intervener may, nevertheless, use arguments different from those used by the party it is supporting, on the condition that they do not alter the framework of the dispute and that the intervention is still intended to support the form of order sought by that party (judgments of 8 June 1995, Siemens v Commission, T‑459/93, EU:T:1995:100, paragraph 21, and of 13 April 2005, Verein für Konsumenteninformation v Commission, T‑2/03, EU:T:2005:125, paragraph 52).
135
In that regard, it must be borne in mind that the requirement of individual concern referred to in the fourth paragraph of Article 263 TFEU is satisfied in particular if the applicant demonstrates that its market position is substantially affected by the aid to which the decision at issue relates (judgments of 13 December 2005, Commission v Aktionsgemeinschaft Recht und Eigentum, C‑78/03 P, EU:C:2005:761, paragraph 37, and of 22 December 2008, British Aggregates v Commission, C‑487/06 P, EU:C:2008:757, paragraph 30). However, the Commission, in the context of its plea of inadmissibility based on the applicant’s lack of locus standi, has argued since the defence that the applicant failed to establish that it was individually concerned by the contested decision.
136
It follows that the Land’s argument that there was no substantial effect on the applicant’s position on the market is closely linked to the arguments put forward by the Commission in its defence concerning the applicant’s lack of individual concern and, thus, the Commission’s plea of inadmissibility based on the applicant’s lack of locus standi. Consequently, it cannot be held that that line of argument alters the framework of the dispute or that the intervention is no longer intended to support the form of order sought by the Commission.
137
It must therefore be concluded that the Land’s line of argument that there was no substantial effect on the applicant’s position on the market is admissible.
(iii) Whether the applicant is directly and individually concerned
138
An action for annulment is admissible on the basis of the second situation provided for in the fourth paragraph of Article 263 TFEU only if the applicant is directly and individually concerned by the contested decision. The conditions for being directly and individually concerned by the contested decision are cumulative (see, to that effect, order of 11 November 2014, Nguyen v Parliament and Council, T‑20/14, EU:T:2014:955, paragraph 55, and judgment of 16 May 2018, Netflix International and Netflix v Commission, T‑818/16, not published, EU:T:2018:274, paragraph 70). It is therefore sufficient that one of those conditions not be fulfilled in order to conclude that an action cannot be declared admissible on the basis of the second situation provided for in the fourth paragraph of Article 263 TFEU.
139
In the present case, the Court considers that it is appropriate to begin by examining the condition of individual concern.
140
In that regard, it should be recalled that, according to settled case-law, persons other than those to whom a decision is addressed may claim to be individually concerned only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of those factors distinguishes them individually just as in the case of the person addressed by such a decision (judgments of 15 July 1963, Plaumann v Commission, 25/62, EU:C:1963:17, p. 107; of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 93; and of 12 May 2016, Hamr — Sport v Commission, T‑693/14, not published, EU:T:2016:292, paragraph 32).
141
In the field of State aid, in addition to the undertaking in receipt of aid, competing undertakings have been recognised as individually concerned by a Commission decision terminating the procedure opened on the basis of Article 108(2) TFEU where they have played an active role in that procedure, provided that their position on the market was substantially affected by the aid which is the subject of the decision at issue (judgments of 28 January 1986, Cofaz and Others v Commission, 169/84, EU:C:1986:42, paragraph 25; of 22 November 2007, Sniace v Commission, C‑260/05 P, EU:C:2007:700, paragraph 55; and of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 98).
142
In the present case, the applicant is not the beneficiary of the measures in favour of Frankfurt Hahn and Ryanair. However, it lodged a complaint with the Commission and submitted its observations in the context of the formal investigation procedure. It is apparent, inter alia, from the contested decision that the applicant submitted detailed information and comments to the Commission on the 2008 opening decision as well as observations on the application of the 2014 Guidelines to the present case. It must therefore be held that the applicant played an active role in the course of the administrative proceedings, which, moreover, is not disputed by the Commission.
143
Nevertheless, it is necessary to point out, as the Commission does, that it cannot be inferred from the mere participation of an applicant in the administrative proceedings that it is individually concerned by the contested decision (see to that effect, judgment of 22 November 2007, Sniace v Commission, C‑260/05 P, EU:C:2007:700, paragraph 60, and order of 26 September 2016, Greenpeace Energy and Others v Commission, T‑382/15, not published, EU:T:2016:589, paragraph 39), even where it has, as in the present case, played an important part in those administrative proceedings, inter alia by lodging the complaint which led to the contested decision (see, to that effect, judgment of 9 July 2009, 3F v Commission, C‑319/07 P, EU:C:2009:435, paragraphs 94 and 95). The applicant must, in any event, demonstrate that the measure which is the subject of the contested decision was capable of substantially affecting its position on the market (see, to that effect, judgment of 22 November 2007, Sniace v Commission, C‑260/05 P, EU:C:2007:700, paragraph 60, and order of 26 January 2012, Mojo Concerts and Amsterdam Music Dome Exploitatie v Commission, T‑90/09, not published, EU:T:2012:30, paragraph 33).
144
In those circumstances, it is necessary to examine whether the measures in favour of Frankfurt Hahn and Ryanair were capable of substantially affecting the applicant’s competitive position on the market or markets in question.
145
In that regard, it must be pointed out that the mere fact that a measure may exercise an influence on the competitive relationships existing on the relevant market and that the undertaking concerned is in a competitive relationship with the addressee of that measure cannot suffice for that undertaking to be regarded as being individually concerned by that measure. Therefore, an undertaking cannot rely solely on its status as a competitor of the undertaking in receipt of aid (judgments of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraphs 99 and 100, and of 26 September 2014, Dansk Automat Brancheforening v Commission, T‑601/11, EU:T:2014:839, paragraph 41).
146
According to settled case-law, the applicant, on whom the burden of proof lies (see, to that effect, order of 26 September 2016, Greenpeace Energy and Others v Commission, T‑382/15, not published, EU:T:2016:589, paragraph 68), must provide evidence to establish the particularity of its competitive situation (see, to that effect, order of 27 May 2004, Deutsche Post and DHL v Commission, T‑358/02, EU:T:2004:159, paragraph 38, and judgment of 10 February 2009, Deutsche Post and DHL International v Commission, T‑388/03, EU:T:2009:30, paragraphs 49 and 51).
147
Admittedly, in the light of the scope of the judicial review which the Courts of the European Union must carry out, it is not for those Courts, at the stage of the examination of admissibility, to give a definitive ruling on the competitive relationship between the applicant and the undertaking allegedly in receipt of the aid in question. It is nevertheless incumbent on the applicant to adduce pertinent reasons to show that the aid in question may adversely affect its legitimate interests by substantially affecting its position on the market in question (see, to that effect, judgment of 28 January 1986, Cofaz and Others v Commission, 169/84, EU:C:1986:42, paragraph 28, and order of 26 September 2016, Greenpeace Energy and Others v Commission, T‑382/15, not published, EU:T:2016:589, paragraph 44). In order to do so, the applicant must establish the magnitude of the prejudice to its position on the market (order of 27 May 2004, Deutsche Post and DHL v Commission, T‑358/02, EU:T:2004:159, paragraph 37).
148
Such prejudice to its competitive position does not have to be inferred from factors such as a significant decline in turnover, appreciable financial losses or a significant reduction in market share following the grant of the aid in question. The grant of State aid can also have an adverse effect on the competitive situation of an operator in other ways, in particular by causing the loss of an opportunity to make a profit or a less favourable development than would have been the case without such aid. Similarly, the seriousness of such an effect may vary according to a large number of factors such as, in particular, the structure of the market concerned or the nature of the aid in question. Demonstrating a substantial adverse effect on a competitor’s position on the market cannot, therefore, simply be a matter of the existence of certain factors indicating a decline in the applicant’s commercial or financial performance (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; and of 26 September 2014, Dansk Automat Brancheforening v Commission, T‑601/11, EU:T:2014:839, paragraph 42).
149
Demonstrating an adverse effect of that nature likewise does not depend directly on the amount of the aid. It depends on the magnitude of the prejudice which that aid may have on the applicant’s position on the market in question and may therefore vary, in respect of aid of a similar amount, in the light of criteria such as the size of that market, the specific nature of the aid, the length of the period for which it was granted, whether the activity affected is the applicant’s main or ancillary activity and the possibilities which the applicant has to circumvent the negative effects of the aid. Thus, the assessment of the magnitude of that prejudice requires, in particular, that the applicant define the relevant market and provide the Court with the main information relating to the structure of that market. Such information might include, in particular, the number of competitors active on that market, their shares of the market and any shift in those market shares since the measures in question were granted (see, to that effect, judgment of 12 June 2014, Sarc v Commission, T‑488/11, not published, EU:T:2014:497, paragraphs 36, 37 and 43).
150
In the application and the reply, the applicant neither defined the market or markets on which it considered that its competitive position had been adversely affected, nor, a fortiori, provided any evidence relating to the size and structure of the market or markets in question and the position of Ryanair and any other competitors on the market or markets during the relevant period. In its observations on the Land’s statement in intervention, the applicant likewise fails to define the market or markets in question, but merely claims that the ‘O&D’ approach referred to by the Land, which consists in including in a relevant market all operators substitutable for one another on a given air route, is not applicable in the field of State aid. It is true that the applicant argues that it is necessary to ‘take into account that Ryanair strengthened its economic position on its international network as a whole’. The applicant fails, however, to delimit the scope of any market on which the effects of such a strengthening of Ryanair’s competitive position could be assessed.
151
The applicant nevertheless adds that it would be individually concerned by the measures in question even if the ‘O&D’ approach were used. In particular, the applicant argues that the measures in question allowed Ryanair increasingly to relocate its activities to larger airports, such as those of Frankfurt-am-Main, Hamburg (Germany), Cologne-Bonn (Germany) and Nuremberg (Germany). However, it is at those large airports that competition between air routes operates ‘in the strict sense’. Accordingly, from Frankfurt Main airport Ryanair serves 16 air routes which the applicant also serves from that airport. In support of its arguments, the applicant relies on Annexes K 83 and K 84, which contain, respectively, extracts from Decision 2016/2069 and a Ryanair press release from March 2017 (see paragraphs 128 to 133 above).
152
At the hearing, the applicant also relied on an alleged overlap on the air route between the Frankfurt‑Bologna city pair, operated by the applicant from Frankfurt Main airport and by Ryanair from Frankfurt Hahn airport.
153
In that regard, it should be noted that it is normally for the person alleging facts in support of a claim to adduce proof of such facts (order of 25 January 2008, Provincia di Ascoli Piceno and Comune di Monte Urano v Apache Footwear and Others, C‑464/07 P(I), not published, EU:C:2008:49, paragraph 9; see also, to that effect, judgment of 6 March 2001, Connolly v Commission, C‑274/99 P, EU:C:2001:127, paragraph 113). In the present case, however, the applicant has adduced no evidence whatsoever to establish the existence of the overlaps on which it relied. Nor has the applicant provided any evidence to support the finding of a causal link between the granting of the measures in favour of Frankfurt Hahn and Ryanair and the relocation of Ryanair’s activities to larger airports.
154
Secondly, even assuming that it is established that the overlaps relied on by the applicant exist and that the air routes on which the overlaps occur may be regarded as relevant markets, it must be held that the applicant has not provided any information concerning their structure and the effect that the grant of the measures in question could have had on them. In particular, the applicant has provided the Court with no information concerning the size of such markets or the market shares of the applicant, Ryanair and their potential competitors on such markets and any shift in those market shares since the measures in favour of Ryanair and Frankfurt Hahn were granted. Nor has it adduced any other evidence to show that it suffered, on such markets, the loss of an opportunity to make a profit or a less favourable development than would have been the case without those measures. In those circumstances, it is not established that the granting of those measures substantially affected the applicant’s competitive position on such markets.
155
It is true that the applicant complains also of the possible effect of the measures in favour of Ryanair and Frankfurt Hahn on its competitive position not on the air routes described in paragraphs 151 and 152 above, but on the passenger air transport market in general. Accordingly, the applicant maintains that it is in a competitive relationship with Ryanair on that market, argues that that market is very competitive and claims that its position on that market has been substantially affected. Thus, Ryanair has, in particular, developed its international and national network from Frankfurt Hahn airport. That airport was developed as a Ryanair ‘base’, without the latter’s financial participation. This allowed Ryanair to experience strong growth and increase its shares of the market in question.
156
However, the applicant fails to define the geographical scope of such a market and provides no more information regarding its structure than regarding the structure of the hypothetical markets described in paragraphs 151 and 152 above. At most, it may be inferred from the evidence adduced by the applicant that a hypothetical passenger air transport market is ‘very competitive’ and is characterised, as the Land states, by the presence of a large number of operators, which precludes a simple presumption that the applicant suffered the loss of an opportunity to make a profit or a less favourable development than would have been the case without the measures in favour of Ryanair and Frankfurt Hahn (see, to that effect, order of 11 January 2012, Phoenix-Reisen and DRV v Commission, T‑58/10, not published, EU:T:2012:3, paragraph 50).
157
In any event, even assuming, as the Court does in the following considerations, that a transfer to Ryanair of the benefit of the measures in favour of Frankfurt Hahn took place and that that transfer was not effected entirely by the other measures which were the subject of the contested decision, none of the six arguments advanced by the applicant to establish that it suffered a substantial adverse effect on its competitive position on a hypothetical passenger air transport market as a result of the measures in favour of Ryanair and Frankfurt Hahn can succeed. Indeed, the applicant’s arguments are essentially limited to a description of the general competitive pressure exerted by Ryanair and the other low-cost airlines on traditional airlines.
158
First, the applicant submits that Frankfurt Hahn airport is located close to Frankfurt Main airport, which is its main operational base, that the airport charges applied to Ryanair were too low and that the commercial relationship between the operator of Frankfurt Hahn and Ryanair was loss-making. According to the applicant, this shows, on the one hand, that the aid granted to Frankfurt Hahn airport was transferred to Ryanair and, on the other hand, that the applicant was substantially affected in view of the size of those transfers.
159
That argument can only be rejected. First of all, it should be noted that the geographical proximity between Frankfurt Hahn and Frankfurt Main airports (115 km) and the fact that the former is, accordingly, in the latter’s catchment area could, at most, demonstrate that there is a competitive relationship between those two airports. Even assuming that the existence of such a relationship is established and may be regarded as indicating that there is a competitive relationship between the applicant and Ryanair, it is sufficient to recall that, in accordance with the case-law cited in paragraph 145 above, the applicant cannot rely solely on its status as a competitor of the recipient undertaking in order to establish that there was a substantial effect on its competitive position.
160
Next, even assuming that the allegedly insufficient airport charges applied to Ryanair and the loss-making nature of the commercial relationship between the operator of Frankfurt Hahn and Ryanair represent a transfer of aid to Ryanair, it is not possible to draw any conclusion from this concerning the magnitude of the competitive harm suffered by the applicant. Such facts relate in a general way to the nature of the benefits enjoyed by Ryanair and are not specific to the effects which such benefits could have had on the applicant’s competitive position.
161
Lastly, as regards the alleged size of the transfers of aid which Ryanair is claimed to have received, it is sufficient to recall that, as is clear from paragraph 149 above, demonstrating a substantial effect on the position of an applicant on the market in question does not depend directly on the amount of aid granted.
162
Secondly, the applicant submits that Ryanair’s fleet grew significantly between 2009 and 2011, making it the largest airline in Europe in terms of seat numbers.
163
That argument must be rejected. It should be noted that such a development could be explained by factors independent of the measures in favour of Frankfurt Hahn and Ryanair, such as the growth in air transport customers. The applicant has not adduced any evidence to establish a causal link between the increase of Ryanair’s fleet and those measures. In any event, the applicant does not rely on any particularity of its situation capable of establishing that its competitive position was substantially affected by that increase.
164
Thirdly, the growth of Ryanair resulting from grants is alleged to have exerted significant pressure on the applicant. It claims to have suffered significant losses of market share, a continuous fall in the price of its tickets and a fall in revenue. The applicant also had to adopt countermeasures by launching its own low-cost airline and was forced to adopt a restructuring programme known as ‚Score’.
165
That argument cannot be upheld. As regards the pressure on the applicant caused by the substantial growth of Ryanair, it should be noted that the applicant adduces no evidence to establish that the significant losses of market share, the continuous fall in ticket prices and the fall in revenue which it claims to have suffered and the launch of the countermeasures which it claims to have taken resulted from the measures in favour of Ryanair and Frankfurt Hahn. On the contrary, the documents before the Court suggest that such a development may be attributable to other factors. For example, in its 2012 annual report, produced before the Court by the Commission, the applicant explains its results in 2012 by reference to several strikes. It also explains its results by reference to competition in European traffic, costs to cover CO2 emissions, taxes in Germany and Austria, the ban on night flights and the high price of kerosene.
166
As regards, in particular, the Score restructuring programme, it must be noted that the applicant does not produce it and therefore does not substantiate its assertion that that restructuring stems from the competitive pressure exerted by Ryanair through the measures in favour of Frankfurt Hahn.
167
It is true that the applicant refers to a press article of 15 June 2015, which relates to the Score restructuring programme. It must nevertheless be noted that the applicant has not produced that article either.
168
Since the applicant has not produced the relevant pages of the Score programme or, at the very least, a convincing summary of its content, it is conceivable that, as the Commission submits, the measures to reduce fuel costs were driven by the age of the applicant’s fleet, that the cost savings through bundled supplies were actually intended to remedy shortcomings in the integration of supplementary purchases and that the cost savings resulting from a division of intra-European flights into ‘hub-and-spoke’ flights and ‘point-to-point’ flights were intended to rectify the complexity of the intra-European flights provided by the applicant. Lastly, it is likewise conceivable that some of the difficulties which justified the Score programme originated, as the Commission also submits, in the difficulties described in the applicant’s 2012 annual report (see paragraph 165 above). Moreover, that annual report characterises the Score programme as a continuation of the measures necessitated by the structural crisis experienced by the aviation sector in Europe, without making any reference to competition from Ryanair resulting from its position at Frankfurt Hahn.
169
Fourthly, the Commission working document on an aviation strategy for Europe, dated December 2015, demonstrates that since 2001 there has been a continuous fall in the number of European airlines which, like the applicant, are among the largest global airlines.
170
That argument is unfounded. It should be noted that the working document on an aviation strategy for Europe deals with major trends in air traffic and does not specifically address either the situation of Frankfurt Hahn and Frankfurt Main airports or the relationship between the applicant and Ryanair. Thus, the fact that, according to that document, in 2015 the low-cost airlines accounted for 48% of seat capacity, whereas the traditional companies’ share of seats fell in that year to 38%, does not make it possible to draw any conclusion as to the development of the respective competitive positions of the applicant and Ryanair and, still less, to take the view that the measures in favour of Ryanair and Frankfurt Hahn had a substantial effect on that development. Moreover, contrary to what the applicant maintains, Chart 5 of that working document shows that those percentages are explained by the fact that low-cost airlines were able to gain a new customer base following the opening of the air transport market in the 1990s, while the position on that market of traditional airlines, such as the applicant, remained stable and did not experience substantial losses. However, nothing in that document shows that traditional airlines could have gained a larger share of that new customer base in the absence of possible State aid to low-cost airlines, nor, a fortiori, that the applicant could have done so in the absence of the measures in favour of Ryanair and Frankfurt Hahn.
171
It is true that Table 2 of the working document on an aviation strategy for Europe gives an individualised overview of the financial performance of key EU airline groups in 2014 and thus compares, inter alia, the Lufthansa group and Ryanair. It follows that, although in 2014 Ryanair recorded positive results, the situation of the Lufthansa group remained broadly stable. Thus, Ryanair experienced a favourable annual revenue growth of 12.3%, whereas the revenue of the Lufthansa group fell by only 0.1%. It also follows from that table that, in 2014, the operating margin of the Lufthansa group remained positive.
172
However, those elements do not suggest that, in the absence of the measures in favour of Ryanair and Frankfurt Hahn, the applicant’s financial results might have been significantly better. In any event, it should be noted that Table 2 of the working document on an aviation strategy for Europe relates to changes in the financial performance of key EU airline groups from 2013 to 2014, while the measures in favour of Ryanair and Frankfurt Hahn were granted between 1999 and 2012. Unless those measures are considered to have had an effect on the applicant’s competitive position only several years later, which the applicant has not claimed in the present case, the table in question cannot be regarded as allowing any conclusion whatsoever to be drawn in that regard.
173
Moreover, although, as the applicant points out, the working document on an aviation strategy for Europe notes that the number of European airlines among the leading global airlines has decreased since 2001, the applicant does not dispute the Commission’s explanation that that development is attributable to the fact that the European market experienced a large number of takeovers.
174
Fifthly, the applicant relies on recital 249 of Commission Decision 2004/393/EC of 12 February 2004 concerning advantages granted by the Walloon Region and Brussels South Charleroi Airport to the airline Ryanair in connection with its establishment at Charleroi (OJ 2004 L 137, p. 1), from which it is apparent, in particular, that the advantage granted through the bearing by the State of operating costs normally borne by an airline does not only distort competition on one or more routes and on a particular market segment but also allows that airline to strengthen its economic position on its network as a whole in relation to competing companies.
175
That argument cannot be accepted. In that regard, on the one hand, it should be noted that the criteria used by the Commission to establish the elements constituting a distortion of competition or an effect on trade between Member States, in the context of Article 107 TFEU, do not fulfil the same functions and do not have the same purpose as the criteria used to assess the admissibility of an action and defined in the fourth paragraph of Article 263 TFEU. Accordingly, the admissibility of the action brought by a private individual may be examined only in the light of the fourth paragraph of Article 263 TFEU (see, to that effect, order of 21 February 2006, Deutsche Post and DHL Express v Commission, C‑367/04 P, not published, EU:C:2006:126, paragraph 47). However, recital 249 of Decision 2004/393 relates exclusively to the criteria of the effect on competition and trade between Member States, for the purposes of Article 107 TFEU. The applicant cannot therefore rely on that recital in order to establish that there was a substantial effect on its position on the market in question.
176
On the other hand, it should be noted that recital 249 of Decision 2004/393 relates, in general, to the effect of operating aid on competition between airlines. That recital relates specifically neither to the effects of such aid on the applicant’s competitive position nor to the measures in favour of Frankfurt Hahn and Ryanair. That recital therefore cannot allow the applicant to establish the particularity of its competitive situation and demonstrate that its competitive position is substantially affected.
177
Sixthly, the applicant claims that, as a shareholder of Fraport, it was compelled to participate in the financing of the development of Frankfurt Hahn airport and the subsidisation of Ryanair. Indeed, until the end of 2008, Fraport was the majority shareholder of FFHG and, as such, offset its losses and participated in two increases in its capital.
178
That argument can only be rejected. Indeed, the applicant has not specified how much it contributed to that financing in its capacity as a shareholder of Fraport, so that it is not possible to determine the extent of the adverse effect which its competitive position may have suffered as a result.
179
It follows from the foregoing that the applicant has not established that it suffered a significant decline in its turnover, appreciable financial losses or a significant reduction in its market share on the market or markets in question following the grant of the measures in favour of Ryanair and the measures in favour of Frankfurt Hahn, even if the benefit of the latter measures was transferred to Ryanair. Nor has the applicant established the loss of an opportunity to make a profit or a less favourable development than would have been the case without those measures.
180
Consequently, even assuming that the benefit of the measures in favour of Frankfurt Hahn was transferred to Ryanair, in whole or in part, otherwise than through other measures which were the subject of the contested decision, it has nonetheless not been established that the applicant’s situation on the market in question was substantially affected by those measures and by the measures in favour of Ryanair.
181
Therefore, without it being necessary to determine whether the benefit of the measures in favour of Frankfurt Hahn was transferred to Ryanair, where appropriate, through the granting of other measures which were the subject of the contested decision or, consequently, to examine the admissibility of the two considerations presented as new pleas in law in the document of 29 April 2016 and relied on as regards that transfer, it must be held that the applicant has not adduced pertinent reasons to show that the measures in favour of Frankfurt Hahn and Ryanair, which are the subject matter of Articles 1 and 2 of the contested decision, may adversely affect its legitimate interests by seriously jeopardising its position on the market or markets in question.
182
Since the applicant has not, therefore, proved to the requisite legal standard its individual concern with regard to the measures which were the subject of Articles 1 and 2 of the contested decision, it must be concluded, without it being necessary to consider the criterion of direct concern, that the present action, in so far as it relates to those articles, cannot be regarded as admissible on the basis of the second situation provided for in the fourth paragraph of Article 263 TFEU. In those circumstances, it is necessary to examine whether the present action, in so far as it relates to those articles, may be declared admissible on the basis of the third situation provided for in the fourth paragraph of Article 263 TFEU.
(2) The third situation provided for in the fourth paragraph of Article 263 TFEU
183
The Commission disputes, in essence, the applicant’s standing to challenge Articles 1 and 2 of the contested decision on the basis of the third situation provided for in the fourth paragraph of Article 263 TFEU. In particular, the Commission notes that the applicant does not claim that the contested decision is a regulatory act and that, in any event, a State aid decision cannot, according to the case-law, be of a regulatory nature. The Commission adds that the Court may examine that question of its own motion.
184
The applicant did not expressly take a view in that regard.
185
An action for annulment is admissible on the basis of the third situation provided for in the fourth paragraph of Article 263 TFEU only if it is directed against a regulatory act which directly concerns the applicant and which does not entail implementing measures.
186
In that regard, it must be borne in mind that the concept of ‘regulatory acts’ refers to acts of general application, except legislative acts (see, to that effect, order of 14 January 2015, SolarWorld and Others v Commission, T‑507/13, EU:T:2015:23, paragraph 64 and the case-law cited). According to the case-law, a measure is of general application if it applies to objectively determined situations and produces legal effects with respect to categories of persons envisaged in general and in the abstract (see judgment of 17 March 2011, AJD Tuna, C‑221/09, EU:C:2011:153, paragraph 51 and the case-law cited). That is not the case with a decision by which the Commission finds that individual State aid is compatible with the internal market (see, to that effect, order of 3 April 2014, CFE-CGC France Télécom-Orange v Commission, T‑2/13, not published, EU:T:2014:226, paragraph 28, and judgment of 3 December 2014, Castelnou Energía v Commission, T‑57/11, EU:T:2014:1021, paragraph 23).
187
However, it should be noted that the measures in favour of Ryanair and Frankfurt Hahn were not granted on the basis of an aid scheme and are therefore individual in nature. In so far as it concerns those measures, the contested decision does not therefore apply to objectively determined situations and does not produce legal effects with respect to categories of persons envisaged in general and in the abstract. Articles 1 and 2 of the contested decision, which relate to those measures, are thus individual in scope and cannot therefore be classified as regulatory acts within the meaning of the fourth paragraph of Article 263 TFEU. Consequently, the applicant is not entitled to challenge Articles 1 and 2 of the contested decision on the basis of the third situation provided for in the fourth paragraph of Article 263 TFEU.
(b)
The applicant’s standing to bring an action against the contested decision in so far as it concerns the schedules of airport charges
188
The Commission calls into question the applicant’s standing to challenge the contested decision in so far as it concerns the 2001 schedule and the 2006 schedule on the basis of both the second and the third situations provided for in the fourth paragraph of Article 263 TFEU.
189
In the present case, the Court considers that it is necessary to examine in turn the two situations referred to in paragraph 188 above.
(1) The second situation provided for in the fourth paragraph of Article 263 TFEU
190
The Commission argues that the applicant has not established that it was directly and individually concerned by Article 3 of the contested decision, which relates to the 2001 schedule and the 2006 schedule. According to the Commission, neither of those two schedules applies to Ryanair. According to the German legislation, the airport charges to be paid by Ryanair are established by private law contracts concluded between that airline and the operator of Frankfurt Hahn airport. Those contracts are, in the present case, the subject of Article 2 of the contested decision. Ryanair therefore receives no aid on the basis of the 2001 schedule or the 2006 schedule. However, the action is directed solely against the aid received by Ryanair. It is therefore inadmissible in so far as it relates to Article 3 of the contested decision.
191
The interveners submit, in general, that, since the applicant is not directly and individually concerned by the contested decision, it does not have locus standi.
192
The applicant maintains that it follows neither from the 2008 opening decision nor from the contested decision that the schedules of airport charges do not apply to Ryanair. On the contrary, recital 458 of the contested decision states that ‘the 2001 schedule of airport charges applied to all airlines using Frankfurt Hahn airport’. Ryanair is one of those airlines. The applicant states, nonetheless, that, according to recital 490 of the contested decision, the 2006 schedule does not appear to apply to Ryanair.
193
The applicant adds that it has standing to challenge Article 3 of the contested decision, even if the schedules in question do not apply, in part, to Ryanair. It should be taken into account that those schedules were adopted after the conclusion of the private law agreements with Ryanair. According to the applicant, the conclusion of those agreements was clearly intended to guarantee particular contractual terms for Ryanair and to place the other airlines at a disadvantage in relation to it.
194
In the rejoinder, the Commission concedes that recital 458 of the contested decision gives the impression that the 2001 schedule applies to Ryanair, but states that it follows, in essence, from recital 464 of that decision that this is not the case. However, the Commission submits that the argument based on the discriminatory nature of the schedules in question was raised for the first time in the reply and must therefore be rejected as inadmissible.
195
In that regard, it should be recalled that, as is apparent from paragraph 138 above, an action for annulment is admissible on the basis of the second situation provided for in the fourth paragraph of Article 263 TFEU only if the applicant fulfils the cumulative conditions of direct concern and individual concern.
196
In the present case, the Court considers it appropriate to begin by examining the condition of direct concern.
197
According to the case-law, the condition of direct concern laid down in the fourth paragraph of Article 263 TFEU requires the contested measure to affect directly the legal situation of the applicant and leave no discretion to its addressees, who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from EU rules without the application of other intermediate rules (see judgment of 13 March 2008, Commission v Infront WM, C‑125/06 P, EU:C:2008:159, paragraph 47 and the case-law cited, and order of 23 November 2015, Milchindustrie-Verband and Deutscher Raiffeisenverband v Commission, T‑670/14, EU:T:2015:906, paragraph 20). Those criteria are cumulative (see order of 8 October 2015, Agrotikos Synetairismos Profitis Ilias v Council, T‑731/14, not published, EU:T:2015:821, paragraph 26 and the case-law cited), so that it is sufficient for one of them not to be fulfilled for it to be concluded that the applicant is not directly affected.
198
As regards, in particular, the rules on State aid, it must be noted that their objective is to preserve competition (see, to that effect, judgment of 15 June 2006, Air Liquide Industries Belgium, C‑393/04 and C‑41/05, EU:C:2006:403, paragraph 27). So, in the field of State aid, the fact that a Commission decision leaves intact all the effects of the national measures which the applicant, in a complaint addressed to that institution, claimed were not compatible with that objective and placed it in an unfavourable competitive position makes it possible to conclude that the decision directly affects its legal situation, in particular its right under the provisions on State aid of the FEU Treaty not to be subject to competition distorted by the national measures concerned (see, to that effect and by analogy, judgments of 28 January 1986, Cofaz and Others v Commission, 169/84, EU:C:1986:42, paragraph 30; of 6 July 1995, AITEC and Others v Commission, T‑447/93 to T‑449/93, EU:T:1995:130, paragraph 41; and of 22 October 1996, Skibsværftsforeningen and Others v Commission, T‑266/94, EU:T:1996:153, paragraph 49).
199
In the present case, in order to establish that it is directly concerned by the contested decision in so far as that decision relates to the 2001 schedule and the 2006 schedule, the applicant essentially raises two arguments. In the first place, it relies on its status as a competitor of Ryanair, which benefited from the 2001 schedule and the 2006 schedule.
200
That argument cannot succeed. It is not apparent from the documents in the file that the 2001 schedule and the 2006 schedule were applicable to Ryanair. On the one hand, as the applicant acknowledges, it is expressly stated in recital 490 of the contested decision that the 2006 schedule did not apply to Ryanair because of the individual agreement Ryanair had concluded with FFHG.
201
On the other hand, it is true that recital 458 of the contested decision states that the 2001 schedule applied to ‘all airlines using Frankfurt Hahn airport’. Since Ryanair is one of those airlines, that recital could be regarded as implying that the 2001 schedule also applied to Ryanair. However, it appears from the contested decision and from the Commission’s pleadings that, at the relevant time, the charges applicable to Ryanair were governed by private agreements derogating from that schedule.
202
The applicant has not adduced any elements of German law suggesting that the 2001 schedule applied to Ryanair notwithstanding the conclusion of private agreements between Ryanair and Frankfurt Hahn or in addition to those agreements, even though it bore the burden of proof (see, to that effect and by analogy, judgments of 20 September 2012, France v Commission, T‑154/10, EU:T:2012:452, paragraph 65, and of 15 December 2016, Abertis Telecom Terrestre and Telecom Castilla-La Mancha vCommission, T‑37/15 and T‑38/15, not published, EU:T:2016:743, paragraph 118). On the contrary, it merely relied on recital 458 of the contested decision and itself acknowledged that ‘certain elements seem[ed] to indicate’ that the 2001 schedule was ‘in part’ not applicable to Ryanair.
203
It follows from the foregoing that the applicant has failed to prove that the 2001 schedule and the 2006 schedule applied to Ryanair. The applicant has therefore not duly established that, in so far as the contested decision related to those schedules, that decision concerned the applicant directly because it was a competitor of Ryanair.
204
In the second place, the applicant claims that the schedules of charges were adopted after the conclusion with Ryanair of the private law contracts referred to in paragraphs 4, 11 and 18 above, with the intention of guaranteeing particular contractual terms for Ryanair and placing the other airlines using Frankfurt Hahn airport at a disadvantage in relation to Ryanair. This had the effect of discriminating against those other airlines.
205
In that regard, first, it must be observed that, in order to demonstrate that its legal situation is directly affected, for the purposes of the case-law cited in paragraph 197 above, an applicant cannot put forward arguments which are not its own. In the present case, the applicant relies, in essence, on alleged discrimination affecting airlines using Frankfurt Hahn airport other than Ryanair. However, the applicant is not among those airlines. The applicant therefore cannot rely on such discrimination to demonstrate that the contested decision, in so far as it relates to the 2001 schedule and the 2006 schedule, is of direct concern to the applicant.
206
Secondly, and in any event, it must be observed that the applicant has not claimed and, a fortiori, has not proved that it is in a competitive relationship with the airlines, other than Ryanair, using Frankfurt Hahn airport. The applicant merely alleges that those schedules discriminate against those airlines in relation to Ryanair. The applicant has therefore failed to establish that the 2001 schedule and the 2006 schedule, in so far as they applied to those airlines, placed it in an unfavourable competitive position.
207
Consequently, the applicant’s argument based on the allegedly discriminatory nature of the 2001 schedule and the 2006 schedule must be rejected without it being necessary to rule on whether that argument is, as claimed by the Commission, out of time.
208
Therefore, without it being necessary to determine whether Article 3 of the contested decision leaves discretion to its addressee, for the purposes of the case-law cited in paragraph 197 above, it must be concluded that the applicant has not established that the measures which were the subject of Article 3 of the contested decision are of direct concern to it. Consequently, the present action, in so far as it concerns Article 3 of the contested decision, cannot be regarded as admissible on the basis of the second situation provided for in the fourth paragraph of Article 263 TFEU.
(2) The third situation provided for in the fourth paragraph of Article 263 TFEU
209
For reasons similar to those set out in paragraph 183 above, the Commission disputes, in essence, the applicant’s standing to challenge Article 3 of the contested decision on the basis of the third situation provided for in the fourth paragraph of Article 263 TFEU.
210
The applicant did not expressly take a view in that regard.
211
In that regard, it must be borne in mind that the criterion of being directly affected is identical in the second and third situations provided for in the fourth paragraph of Article 263 TFEU (order of 13 March 2015 in European Coalition to End Animal Experiments v ECHA, T‑673/13, EU:T:2015:167, paragraph 67).
212
In paragraphs 195 to 208 above, in the context of the examination of the second situation provided for in the fourth paragraph of Article 263 TFEU, the Court held that the applicant was not directly concerned by Article 3 of the contested decision. Accordingly, the same applies for the purposes of the third situation provided for in that provision. It follows that the applicant has not established that it has standing to challenge Article 3 of the contested decision on the basis of the third situation provided for in the fourth paragraph of Article 263 TFEU.
213
Since the applicant has therefore failed to establish that it had standing to challenge Articles 1 to 3 of the contested decision, the action must be dismissed as inadmissible in its entirety, without it being necessary to examine the pleas of inadmissibility based on the applicant’s alleged lack of interest in bringing an action challenging Article 1 of that decision and on the action being out of time and without it being necessary to rule on the Commission’s request for deletion of the references in the reply to the defence lodged in the case giving rise to the judgment of 27 April 2017, Germanwings v Commission (T‑375/15, not published, EU:T:2017:289), which relate solely to the merits of the case. Since it is based on the application of rules on admissibility specific to EU disputes (see, in particular, paragraphs 113 to 117 above), that conclusion necessarily applies, contrary to what the applicant suggests, even if the applicant’s locus standi has never been called into question in proceedings before the German courts to which it has been a party since 2006 and which concern State aid granted to Ryanair.
V. Costs
214
Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
215
Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission and the interveners.
On those grounds,
THE GENERAL COURT (Fourth Chamber, Extended Composition)
hereby:
1.
Dismisses the action as inadmissible.
2.
Orders Deutsche Lufthansa AG to pay the costs.
Kanninen
Schwarcz
Iliopoulos
Calvo-Sotelo Ibáñez-Martín
Reine
Delivered in open court in Luxembourg on 12 April 2019.
[Signatures]
Table of Contents
I. Background to the dispute
II. Contested decision
A. Measures in favour of Frankfurt Hahn
B. Measures in favour of Ryanair
C. Schedules of airport charges
D. Operative part of the contested decision
III. Procedure and forms of order sought
IV. Law
A. The admissibility of the defence
B. The intervention of the Land
C. Admissibility of the action
1. The lack of coherence of the application
2. The applicant’s lack of locus standi
(a) The applicant’s standing to challenge the contested decision in so far as it concerns the measures in favour of Frankfurt Hahn and Ryanair
(1) The second situation provided for in the fourth paragraph of Article 263 TFEU
(i) Admissibility of Annexes K 83 and K 84
(ii) Admissibility of the line of argument that there was no substantial effect on the applicant’s position on the market
(iii) Whether the applicant is directly and individually concerned
(2) The third situation provided for in the fourth paragraph of Article 263 TFEU
(b) The applicant’s standing to bring an action against the contested decision in so far as it concerns the schedules of airport charges
(1) The second situation provided for in the fourth paragraph of Article 263 TFEU
(2) The third situation provided for in the fourth paragraph of Article 263 TFEU
V. Costs
(
*1
)	Language of the case: German.