62017TJ0716_RES
Case T‑716/17
Germanwings GmbH
v
European Commission
Judgment of the General Court (First Chamber, Extended Composition), 13 May 2020
(State aid — Aviation sector — Aid granted by Italy in favour of Sardinian airports — Decision declaring the aid partly compatible and partly incompatible with the internal market — Imputability to the State — Beneficiaries — Advantage for co-contracting airlines — Market economy operator principle — Effect on trade between Member States — Adverse effect on competition — Obligation to state reasons — Aid scheme — De minimis aid — Recovery)
Judicial proceedings — Introduction of new pleas during the proceedings — Amplification of a plea made earlier — Admissibility
(Rules of Procedure of the General Court, Art. 84)
(see paragraphs 61, 64)
State aid — Concept — Grant attributable to the State of an advantage by means of State resources — Measures to improve air services to an island region and to promote that region as a touristic destination — Reimbursement by the State of sums paid by airport operators to airlines under agreements pursuing those objectives — Included
(Art. 107(1) TFEU)
(see paragraphs 65-106)
State aid — Concept — Grant of advantages imputable to the State — Aid granted by regional or local bodies — Included — Advantages granted through bodies distinct from the State — Application of the criterion of public control — Involvement of public authorities in the adoption of measures and in the monitoring of their implementation — Included
(Art. 107(1) TFEU)
(see paragraphs 66, 81-85, 96-99, 102)
State aid — Concept — Aid from State resources — Concept of State resources — Funds transferred by a regional entity to airport operators and used by the latter to pay airlines — Included — Conditions — Public control over the grant of the advantage
(Art. 107(1) TFEU)
(see paragraphs 74-78)
State aid — Concept — Assessment according to the criterion of the private investor — Contractual relations between the airport operators and the airlines — Implementation of an aid scheme by an airport operator not owned by the State — Not included
(Art. 107(1) TFEU)
(see paragraphs 124, 125, 131, 132)
Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Abstract statement — Inadmissibility
(Statute of the Court of Justice, Arts 21, first para., and 53, first para.; Rules of Procedure of the General Court, Art. 76(d))
(see paragraphs 145, 148)
State aid — Effect on trade between Member States — Adverse effect on competition — Criteria for assessment — Scope of the burden of proof on the Commission
(Art. 107(1) TFEU)
(see paragraphs 155, 156)
State aid — Examination by the Commission — Examination of an aid scheme as a whole — Whether permissible — Obligation on the Commission to assess individually the situation of certain beneficiaries — Absence — Verification by the national authorities when implementing the decision
(Arts 107 and 108 TFEU)
(see paragraphs 157, 167, 170-173, 183)
State aid — Commission decision finding aid incompatible with the internal market — Obligation to state reasons — Scope
(Arts 108 and 296 TFEU)
(see paragraph 159)
Résumé
By the judgment in Germanwings v Commission (T‑716/17), delivered on 13 May 2020, the General Court, ruling in the extended five-judge formation, dismissed the action brought by Germanwings GmbH (‘the applicant’) seeking the annulment of the decision of the European Commission of 29 July 2016 which declared partly incompatible with the internal market the aid granted by Italy to various airlines serving Sardinia. (
1
) According to that decision, the aid scheme instituted, in Italy, by the Autonomous Region of Sardinia (‘the Region’) for the development of air transport constituted State aid granted not to the Sardinian airport operators, but to the airlines concerned.
On 13 April 2010, the Region had adopted Law No 10/2010, (
2
) subsequently notified by Italy to the Commission pursuant to Article 108(3) TFEU, which authorised the financing of the island’s airports with a view to the development of air transport, inter alia through the de-seasonalisation of air routes to and from Sardinia. That law was implemented by a series of measures adopted by the executive of the Region, including Regional Council Decision No 29/36 of 29 July 2010 (hereinafter referred to, together with the relevant provisions of Law No 10/2010, as ‘the measures at issue’). The measures at issue provided inter alia for the conclusion by the airport operators of agreements with the airlines with a view to improving the island’s air service and promoting it as a touristic destination. They determined, moreover, the conditions and arrangements of reimbursement, by the Region, to the airport operators of the sums paid by those operators to the airlines under such agreements.
On 29 July 2016, the Commission adopted a decision declaring the aid scheme established by the measures at issue partly incompatible with the internal market and ordering the recovery of the aid concerned from the airlines considered as beneficiaries, which included the applicant. In support of its action for annulment, it put forward several pleas alleging, inter alia, various errors of law concerning the concept of State aid and the de minimis nature of the sum received.
The Court, first of all, rejected the first plea in law alleging infringement of Article 107(1) TFEU, in that the Commission did not demonstrate the existence of State aid, having failed to examine whether an airport operator had acted as a private operator in a market economy.
Contrary to the position put forward by the applicant, the Region, rather than the airport operators, was the source of the advantage disputed by the applicant. In that regard, the Court confirmed, in the first place, that the payments made by the airport operators to the airlines under the concluded agreements represented a mobilisation of State resources, in so far as the funds transferred by the Region to the airport operators had been used to effect those payments, including that received by the applicant. In supporting that conclusion, the Court relied primarily on the analysis of the arrangements prescribed by the measures at issue for the reimbursement by the Region of the payments made by the airport operators to the airlines under the concluded agreements. The Court thereby noted the existence of a supervision mechanism which made the reimbursement — in instalments — of the funds incurred conditional on the presentation of accounting and supporting reports establishing the conformity of the agreements, under which the payments had been made, with the objectives pursued by Law No 10/2010 as well as their proper implementation. Moreover, the applicant itself had stated that the payment received had been ‘financed’ by the Region.
So far as concerns, in the second place, the imputability to the Region of the payments made by the airport operators to the benefit of the airlines, the Court found that the degree of control exerted by the State over the grant of an advantage — as is apparent inter alia from the context in which the measure in question was taken, its compass, its content and the conditions which it contains — must also be taken into account in order to ascertain the involvement of the public authorities in its adoption, failing which the advantage granted cannot be imputed to them. Examining the contested decision in the light of those criteria, the Court then found that, in the case at hand, the degree of control exerted by the Region over the grant of the funds to the airlines demonstrated to the requisite legal standard its involvement in making the funds available. Indeed, even though the precise arrangements for allocating the funds obtained by each of the airport operators were not determined in Law No 10/2010, the fact remains that the decisions taken by the Regional Executive in application of that law enabled the Region to monitor closely the behaviour of the airport operators that had decided to request the financing measures provided for under the aid scheme at issue, whether that be through the prior approval of their plans of activities or through the requisite conditions for reimbursement of the sums transferred by those operators to the airlines. According to the Court, the exertion of such control by the Region proves that the financing measures at issue were imputable to it, without that conclusion being called into question either by the choice left to the airport operators of whether or not to apply to the Region for funds, on the basis of economic considerations specific to them, or by the alleged public undertaking nature of a particular airport operator. Consequently, the Court approved the Commission’s finding that the airport operators could be considered as intermediaries between the Region and the airlines, since they had transferred in full the funds received from the Region to the airlines and had thus acted in accordance with the instructions received from the Region through the plans of activities approved by that region.
The Court held, in the third place, that the Commission had been right not to examine the transactions between the airlines and the airport operators in the light of the market economy operator test. Indeed, those operators, which were not owned by the Region, had been essentially limited to implementing the aid scheme at issue put in place by the Region. Consequently, the information submitted by the applicant concerning the incremental profitability of its contract with an airport operator was irrelevant. Furthermore, the Court specified that, in any event, the applicant’s participation in the financing of a promotion campaign which gave rise to a payment under the measures at issue did not make it possible to deduce that the payment received by the applicant had not given rise to the grant of any advantage since, although the applicant and the Region, through that operator, co-financed that campaign, they did not participate in it under comparable conditions.
The Court next rejected the second plea, alleging infringement of Article 107(1) TFEU, in that the Commission had not demonstrated that the aid granted to the applicant distorted or threatened to distort competition and affected trade between Member States. In that regard, the Court, first of all, ruled out that the applicant could reasonably rely on the limited amount of the payment which it received from a given airport operator, since its line of argument according to which the existence of aid ought to have been examined at the level of such an operator had already been rejected as unfounded. Furthermore, in the event that the applicant had thereby sought to challenge the categorisation of the measures at issue as an ‘aid scheme’ within the meaning of Article 1(d) of Regulation 2015/1589, (
3
) the Court held that such a line of argument was inadmissible, in the absence of a sufficiently clear and precise presentation in the text of the application itself. In any event, that argument could not succeed, since the airport operators were merely intermediaries in the implementation of the aid scheme at issue and, therefore, did not have a margin of discretion in determining the essential elements of the aid in question and the appropriateness of granting it. Such a role fell to the Regional Executive of the Region. As to the remainder, the Court considered that the Commission had given sufficient reasons as to why the aid scheme gave the beneficiaries an appreciable advantage over their competitors and was likely to benefit in particular undertakings engaged in trade between Member States.
The Court, last, rejected the third plea, alleging an error in law on the ground that the Commission had not examined whether the payment received by the applicant constituted de minimis aid within the meaning of Regulation No 1998/2006. (
4
) After having recalled that, when examining an aid scheme, the Commission may confine itself to examining the characteristics of the scheme in question and is not required to carry out an analysis of the aid granted in each individual case on the basis of such a scheme, the Court emphasised that it is for the national authorities to verify the individual situation of each undertaking concerned by a recovery operation. It follows, in the view of the Court, that it was not for the Commission, in the case at hand, to examine the possible de minimis nature of the payment received by the applicant, with the result that the arguments put forward by the applicant in that regard were ineffective. The Court also found that the identification of the applicant as a beneficiary in the operative part of the contested decision had no bearing on the obligations of the Italian authorities in that regard.
(
1
)	Commission Decision (EU) 2017/1861 of 29 July 2016 on State aid SA33983 (2013/C) (ex 2012/NN) (ex 2011/N) — Italy — Compensation to Sardinian airports for public service obligations (SGEI) (OJ 2017 L 268, p. 1).
(
2
)	Legge regionale n. 10 — Misure per lo sviluppo del trasporto aereo (Regional Law No 10 — Measures for the development of air transport) (Bollettino ufficiale della Regione Autonoma della Sardegna No 12, of 16 April 2010) (‘Law No 10/2010’).
(
3
)	Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ 2015 L 248, p. 9).
(
4
)	Commission Regulation (EU) No 1998/2006 of 15 December 2006 on the application of Articles [107 and 108 TFEU] to de minimis aid (OJ 2006 L 379, p. 5).