ORDER OF THE GENERAL COURT (Third Chamber)
12 July 2021 (*)
(Action for annulment – Air transport – Regulation (EC) No 1008/2008 – Rules on the distribution of air traffic between Schiphol and Lelystad Airports – Priority for the allocation of slots to Lelystad Airport – Regulatory act entailing implementing measures – Not individually concerned – Inadmissibility)
In Case T‑866/19,
Ryanair DAC, established in Swords (Ireland),
Laudamotion GmbH, established in Schwechat (Austria),
represented by E. Vahida and I.‑G. Metaxas-Maranghidis, lawyers,
applicants,
v
European Commission, represented by V. Di Bucci and W. Mölls, acting as Agents,
defendant,
APPLICATION under Article 263 TFEU seeking the annulment of Commission Implementing Decision (EU) 2019/1585 of 24 September 2019 on the establishment of traffic distribution rules pursuant to Article 19 of Regulation (EC) No 1008/2008 of the European Parliament and of the Council for the airports Amsterdam Schiphol and Amsterdam Lelystad (OJ 2019 L 246, p. 24),
THE GENERAL COURT (Third Chamber),
composed of A. M. Collins, President, V. Kreuschitz and G. De Baere (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1        The applicants, Ryanair DAC and Laudamotion GmbH, are European air carriers. They are subsidiaries of Ryanair Holdings plc.
2        Schiphol Airport is an international airport located nine kilometres from Amsterdam (Netherlands). Lelystad Airport (Netherlands) is located 56 kilometres from Amsterdam and is not currently used for regular commercial flights.
3        Ryanair operates two routes at Schiphol Airport while Laudamotion does not operate any flights there.
4        In accordance with Article 19(3) of Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community (OJ 2008 L 293, p. 3), the Netherlands authorities, by email of 25 March 2019, informed the European Commission of their intention to establish traffic distribution rules for Schiphol and Lelystad Airports by means of a ministerial decree and an implementing order of the Minister for Infrastructure and Water (‘the traffic distribution rules’). The notification contained the draft decrees and the implementing order of that minister. An amended version of those documents was sent to the Commission by the Netherlands authorities on 29 March 2019, together with explanatory notes.
5        The Commission published a summary of the traffic distribution rules in the Official Journal of the European Union on 12 April 2019 (OJ 2019 C 136, p. 26) and invited interested parties to submit their comments. Ryanair submitted comments on 29 April 2019.
6        By letters of 3 and 11 July 2019, the Netherlands authorities submitted an amendment to the notification and provided further factual information.
7        On 24 September 2019, the Commission adopted Implementing Decision (EU) 2019/1585 on the establishment of traffic distribution rules pursuant to Article 19 of Regulation No 1008/2008 for the airports Amsterdam Schiphol and Amsterdam Lelystad (OJ 2019 L 246, p. 24; ‘the contested decision’), by which it approved the traffic distribution rules, as amended.
8        First, the Commission described the traffic distribution rules laid down in the draft ministerial decree and in the draft implementing order of the Minister for Infrastructure and Water.
9        According to those rules, Lelystad Airport will be designated as a coordinated airport within the meaning of Council Regulation (EEC) No 95/93 of 18 January 1993 on common rules for the allocation of slots at Community airports (OJ 1993 L 14, p. 1), as soon as the ministerial decree enters into force.
10      Without prejudice to Regulation No 95/93, an air carrier will have priority to obtain slots at Lelystad Airport to take off or land in so far as that air carrier has transferred historical slots at Schiphol Airport to another air carrier or the coordinator, or commits to use henceforth historical slots at Schiphol Airport to operate transfer flights (‘the priority of traffic distribution rules’).
11      That priority will apply only to slots at Schiphol Airport that were used in the previous corresponding scheduling period or in at least three of the four previous corresponding scheduling periods to conduct point-to-point flights. The criteria defining transfer flights and point-to-point flights are laid down in the draft implementing decree and the related destinations are listed in Annex 1 and Annex 2 to that draft decree respectively.
12      The air carrier relying on the priority of traffic distribution rules must inform the Minister for Infrastructure and Water, the coordinator and, where appropriate, the beneficiary air carrier, indicating the slots concerned at Schiphol Airport.
13      The priority of traffic distribution rules applies to two tranches of slots at Lelystad Airport, that is to say,
up to 10 000 slots and 10 001 to 25 000 slots, and the contested decision concerns only the first tranche of slots.
14      Second, the Commission set out the objective of the traffic distribution rules, namely the creation of a European network of routes from Schiphol Airport serving continental and intercontinental destinations for the purposes of maintaining and developing that European hub. It observed that that objective was part of the limit of 500 000 movements per year at Schiphol Airport until the end of 2020 established in the ‘Alders Agreement’, concluded in 2008 between the aviation industry, the public authorities and residents and seeking to reach a balance between the growth of the aviation sector and viability and environmental safety and sustainability. Since the 500 000 movement limit per year had already been reached at Schiphol Airport in 2018, the Netherlands authorities took the view that the capacity available to transfer traffic could be increased only by distributing traffic between that airport and Lelystad Airport, the latter having to receive ‘point-to-point’ flights from Schiphol Airport.
15      The Commission also explained that the traffic distribution rules were part of a more general development plan for Lelystad Airport providing for a maximum capacity of 45 000
yearly aircraft movements, which had to be achieved in two stages.
16      Third, having heard the comments submitted by the interested parties, the Commission assessed the compatibility of the traffic distribution rules laid down by the Netherlands authorities with Article 19 of Regulation No 1008/2008.
17      First of all, the Commission found that the Schiphol and Lelystad Airports met the eligibility requirements for traffic distribution laid down in Article 19(2) of Regulation No 1008/2008.
18      Next, it found that the criteria established in the traffic distribution rules were proportionate, objective and transparent and that those rules did not discriminate between destinations within the European Union nor did they discriminate on the basis of nationality or identity of the air carrier.
19      Lastly, the Commission noted that, since Lelystad Airport was going to be designated as a coordinated airport within the meaning of Regulation No 95/93, the allocation of slots at that airport had to comply with that regulation. The Commission found that the priority of traffic distribution rules only set in once the priority criteria of Regulation No 95/93 had been applied and was limited to the slots previously covered by the rules, that is to say,
10 000 slots, so that that adjustment of priority, which did not go beyond what was necessary to achieve the objective of the traffic distribution rules, was compatible with Regulation No 95/93.
Procedure and forms of order sought
20      The applicants brought the present action by an application lodged at the Court Registry on 19 December 2019.
21      By document lodged at the Court Registry on 20 March 2020, the Kingdom of the Netherlands sought leave to intervene in the present case in support of the forms of order sought by the Commission.
22      By separate document lodged at the Court Registry on 24 March 2020, the Commission raised a plea of inadmissibility under Article 130(1) of the Rules of Procedure of the General Court. The applicants submitted their observations on that plea on 10 June 2020.
23      By way of a measure of organisation of procedure within the meaning of Article 89 of the Rules of Procedure, on 15 December 2020, the Court invited the applicants and the Commission to reply in writing to four questions put by the Court. The parties complied with that request within the prescribed time limit.
24      The applicants claim that the Court should:
–        declare the action admissible;
–        annul the contested decision;
–        order the Commission to pay the costs.
25      The Commission contends that the Court should:
–        dismiss the action as inadmissible;
–        order the applicants to pay the costs.
The plea of inadmissibility
26      Under Article 130(1) and (7) of the Rules of Procedure, the Court may, if the defendant so requests, rule on the question of admissibility without considering the merits of the case. In the present case, as the Commission has applied for a decision on inadmissibility, the Court, finding that it has sufficient information from the documents in the case file, has decided to rule on that application without taking further steps in the proceedings.
27      Under 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 does not entail implementing measures.
28      It must be stated that the applicants are not addressees
of the contested decision, which is addressed to the Kingdom of the Netherlands.
29      The fourth paragraph of Article 263 TFEU nevertheless provides for two situations in which natural or legal persons are accorded standing to institute proceedings against an act not addressed to them, as is the case here. First, such proceedings may be instituted if the act is of direct and individual concern to those persons. Second, they may bring proceedings against a regulatory act not entailing implementing measures if that act is of direct concern to them (judgments of 19 December 2013, Telefónica v Commission, C‑274/12 P, EU:C:2013:852, paragraph 19; of 28 October 2020, Associazione GranoSalus v Commission, C‑313/19 P, not published, EU:C:2020:869, paragraph 28; and of 3 December 2020, Changmao Biochemical Engineering v Distillerie Bonollo and Others, C‑461/18 P, EU:C:2020:979, paragraph 54).
30      In the application, the applicants claim that their situation corresponds to the second situation set out in paragraph 29 above.
31      In support of its plea of inadmissibility, the Commission submits, in contrast with the applicants, that the contested decision is a regulatory act which entails implementing measures, with the result that the last requirement laid down in the third limb of the fourth paragraph of Article 263 TFEU is not satisfied.
32      In addition, the Commission submits, as it confirmed in response to the questions put by the Court, that the applicants are not individually concerned by the contested decision, with the result that their situation likewise does not correspond to the first situation set out in paragraph 29 above resulting from the second limb of the fourth paragraph of Article 263 TFEU. Therefore, according to the Commission, the applicants do not have standing to bring proceedings.
The characterisation of the contested decision as a regulatory act which does not entail implementing measures
33      As a preliminary point, it should be recalled that the concept of ‘regulatory act’, within the meaning of the third limb of the fourth paragraph of Article 263 TFEU, encompasses acts of general application, excluding legislative acts (judgments of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraphs 58 to 61, and of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 23).
34      As the applicants point out, the contested decision is not a legislative act, since it was not adopted in accordance with the ordinary legislative procedure described in Article 294 TFEU or in accordance with a special legislative procedure, as defined in Article 289(2) TFEU. Furthermore, neither the applicants nor the Commission dispute that the contested decision constitutes an act of general application, which applies to objectively determined situations and produces legal effects with respect to categories of persons envisaged in a general and abstract manner (see, to that effect, judgments of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 29, and of 3 September 2020, Mellifera v Commission, C‑784/18 P, not published, EU:C:2020:630, paragraph 66).
35      Therefore, it must be held that the contested decision is a regulatory act within the meaning of the third limb of the fourth paragraph of Article 263 TFEU.
36      Next, it is necessary to examine whether or not the contested decision entails implementing measures, which is what is in dispute.
37      The Commission claims that the allocation of slots at coordinated airports, such as Lelystad Airport, is entrusted exclusively to the coordinator. The traffic distribution rules approved by the contested decision, in the same way as the rules on the allocation of slots laid down in Regulation No 95/93, are the subject of decisions by the coordinator. In particular, the application of the priority of traffic distribution rules requires a case-by-case assessment by the coordinator and its result depends on several factors evaluated by that coordinator. Decisions of the coordinator may be challenged before the competent national courts.
38      The applicants dispute the Commission’s arguments. They submit that the contested decision affects their legal position in the absence of any implementing measure, since it approves the priority of traffic distribution rules, the benefit of which they cannot
claim since they are excluded ab initio from its scope. That priority gives certain air carriers the benefit of a ‘super-priority’ which prevails over the priority for new entrants provided for in Article 10(6) of Regulation No 95/93, to which the applicants could lay claim. They submit that the considerations set out by the Court of Justice in paragraphs 65 and 66 of the judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci
(C‑622/16 P to C‑624/16 P, EU:C:2018:873), are applicable to their situation. It would be artificial to require the applicants to make priority requests for slots at Lelystad Airport and then to challenge before the national courts the foreseeable refusal of the national authorities to grant them. In any event, according to the applicants, they have no chance of obtaining slots at Lelystad Airport in the light of the very low supply of slots at that coordinated airport and the high demand from ‘super-priority’ air carriers.
39      It should be noted that the expression ‘does not entail implementing measures’ within the meaning of the third limb of the fourth paragraph of Article 263 TFEU must be interpreted in the light of the objective of that provision, which, as is apparent from its drafting history, is to ensure that individuals do not have to break the law in order to have access to a court. Where a regulatory act directly affects the legal situation of natural or legal persons without requiring implementing measures, those persons could be denied effective judicial protection if they did not have a direct legal remedy before the European Union judicature for the purpose of challenging the legality of the regulatory act. In the absence of implementing measures, natural or legal persons, although directly concerned by the act in question, would be able to obtain a judicial review of that act only after having infringed its provisions, by pleading that those provisions are unlawful in proceedings initiated against them before the national courts (judgments of 19 December 2013, Telefónica v Commission, C‑274/12 P, EU:C:2013:852, paragraph 27; of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 58; and of 28 October 2020, Associazione GranoSalus v Commission, C‑313/19 P, not published, EU:C:2020:869, paragraph 31).
40      By contrast, where a regulatory act entails implementing measures, judicial review of compliance with the EU legal order is ensured irrespective of whether those measures were adopted by the European Union or the Member States. Natural or legal persons who are unable, because of the conditions governing admissibility laid down in the fourth paragraph of Article 263 TFEU, to challenge a regulatory act of the European Union directly before the European Union judicature are protected against the application to them of such an act by the ability to challenge the implementing measures which the act entails (judgments of 19 December 2013, Telefónica v Commission, C‑274/12 P, EU:C:2013:852, paragraph 28; of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 59; and of 28 October 2020, Associazione GranoSalus v Commission, C‑313/19 P, not published, EU:C:2020:869, paragraph 32).
41      Where responsibility for the implementation of such acts lies with the institutions, bodies, offices or agencies of the European Union, natural or legal persons are entitled to bring a direct action before the European Union judicature against the implementing acts under the conditions stated in the fourth paragraph of Article 263 TFEU, and to plead in support of that action, pursuant to Article 277 TFEU, the illegality of the basic act at issue. Where that implementation is a matter for the Member States, those persons may plead the invalidity of the basic act at issue before the national courts and tribunals and cause the latter to request a preliminary ruling from the Court of Justice, pursuant to Article 267 TFEU (judgments of 19 December 2013, Telefónica v Commission, C‑274/12 P, EU:C:2013:852, paragraph 29; of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 60; and of 28 October 2020, Associazione GranoSalus v Commission, C‑313/19 P, not published, EU:C:2020:869, paragraph 33).
42      In order to assess whether a regulatory act entails implementing measures, it should be assessed by reference to the position of the person pleading the right to bring proceedings under the third limb of the fourth paragraph of Article 263 TFEU. It is therefore irrelevant whether the act in question entails implementing measures with regard to other persons. Furthermore, in the context of that assessment, reference should be made exclusively to the subject matter of the action (judgments of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 61, and of 28 October 2020, Associazione GranoSalus v Commission, C‑313/19 P, not published, EU:C:2020:869, paragraph 38).
43      In the present case, the applicants challenge the contested decision, by which the Commission approved the traffic distribution rules and, in particular, the priority provided for therein. Before determining whether the contested decision, in so far as it approves the priority of traffic distribution rules, entails implementing measures with regard to the applicants, it is appropriate to set out the rules applicable to Lelystad Airport.
The relationship between the rules applicable to Lelystad Airport
–       The rules for the allocation of slots laid down in Regulation No 95/93
44      In paragraphs 95 and 96 of the contested decision, the Commission observed that, due to the lack of capacity at Lelystad Airport when it opens to commercial flights, that airport will be designated as a coordinated airport within the meaning of Regulation No 95/93, so that the slot allocation procedure
there will have to comply with that regulation.
45      Under Article 2(g) of Regulation No 95/93, as amended by Regulation (EC) No 545/2009 of the European Parliament and of the Council of 18 June 2009 (OJ 2009 L 167, p. 24), which was in force at the time of the adoption of the contested decision, a coordinated airport is defined as ‘any airport where, in order to land or take off, it is necessary for an air carrier or any other aircraft operator to have been allocated a slot by a coordinator …’.
46      According to Article 2(a) of Regulation No 95/93, a slot is defined as the permission given by a coordinator in accordance with that regulation to use the full range of airport infrastructure necessary to operate an air service at a coordinated airport on a specific date and time for the purpose of landing or take-off as allocated by a coordinator in accordance with that regulation.
47      Under Article 4(1) of Regulation No 95/93, the coordinator is a qualified natural or legal person, appointed by the Member State responsible for the coordinated airport. Under Article 4(5) of that regulation, the coordinator is the only person responsible for the allocation of slots.
48      According to Article 7(1) of Regulation No 95/93, air carriers operating or intending to operate services at a coordinated airport are to provide the coordinator with all relevant information requested by him or her.
49      Article 8 of Regulation No 95/93, entitled ‘Process of slot allocation’, provides, in paragraph 1, that the series of slots are allocated from the slot pool to applicant carriers as permissions to use the airport infrastructure for the purpose of landing or take-off for the scheduling period for which they are requested.
50      According to Article 8(6) of Regulation No 95/93, where a request for a slot cannot be accommodated, the coordinator is to communicate the reasons for that request to the requesting air carrier.
51      Under Article 10(6) of Regulation No 95/93, without prejudice, in particular, to Article 8(1) of Council Regulation (EEC) No 2408/92 of 23 July 1992 on access for Community air carriers to intra-Community air routes (OJ 1992 L 240, p. 8) (now Article 19(2) of Regulation No 1008/2008), which provides for the possibility for a Member State to enact air-traffic distribution rules, slots placed in the pool are to be distributed among applicant air carriers and 50% of those slots must first be allocated to new entrants as defined in Regulation No 95/93 (‘the new entrant priority’).
52      It follows that, at a coordinated airport such as Lelystad Airport, the coordinator allocates slots to air carriers, in the form of permission to use the airport infrastructure for a given scheduling period, after assessing their requests and taking into account, in particular, the priority status of new entrants.
–       The traffic distribution rules
53      It must be borne in mind that the Kingdom of the Netherlands notified the Commission of the traffic distribution rules on the basis of Article 19 of Regulation No 1008/2008. Article 19(2) of that regulation states that a Member State may govern the distribution of air traffic between airports meeting certain conditions, such as the Schiphol and Lelystad Airports. Under Article 19(3) of that regulation, the Commission is to decide whether the traffic distribution rules notified to it may be applied. They are not applied before publication of the Commission’s approval.
54      As is apparent from paragraph 10 above, the traffic distribution rules approved by the Commission establish a priority rule. The priority of traffic distribution rules provides that air carriers which transfer historical slots at
Schiphol Airport to another carrier or coordinator or which undertake to use those slots to operate transfer flights are given priority to obtain slots at Lelystad Airport.
55      An air carrier wishing to benefit from the priority of the traffic distribution rules must inform, inter alia, the coordinator (see paragraph 12 above) during the slot allocation procedure governed by Regulation No 95/93, as indicated by the parties in their replies to the questions put by the Court.
–       The relationship between those rules
56      It should be noted that the priority of traffic distribution rules is without prejudice to Regulation No 95/93. As regards new entrant priority, it is apparent from paragraph 51 above that that priority, for its part, is without prejudice to the traffic distribution rules which the Member State may enact.
57      As the Commission observed in paragraphs 96 to 99 of the contested decision and as is apparent from the explanatory note to the draft ministerial decree, it must be inferred, first, that the priority of traffic distribution rules will set in only
after the rules on the allocation of slots laid down in Regulation No 95/93 have been applied. That priority will therefore apply only to competing requests following the application of the criteria laid down in that regulation. Second, the new entrant priority may be adapted in the context of the distribution of traffic envisaged by the Netherlands Government in order to take account of the priority of traffic distribution rules, which therefore constitutes an additional priority to that of new entrants.
The existence of implementing measures
58      It follows from the explanations set out in paragraphs 44 to 57 above that, since Lelystad Airport will be designated as a coordinated airport, the coordinator will necessarily have to decide on slot requests from air carriers. To that end, the coordinator will have to assess the competing claims of those carriers for a given scheduling period, taking into account the new entrant priority and the priority of the traffic distribution rules on which they are relying.
59      The priority of traffic distribution rules approved by the contested decision is therefore a criterion to be taken into account by the coordinator in his or her assessment. Therefore, the coordinator’s decisions constitute the implementing measures of the contested decision. As the Commission has rightly stated, the priority of traffic distribution rules will take the form, together with the rules for the allocation of slots laid down in Regulation No 95/93, of the coordinator’s decision to accept or reject slot requests made by air carriers, including those of the applicants.
60      In so far as the applicants submit that the coordinator can in no way change the purely legal redistribution of the operators’ rights established by the contested decision, it should be noted that that line of argument relates to the possible direct concern to the applicants. The condition relating to the absence of implementing measures is distinct from that of direct concern. The question whether or not the applicable legislation leaves a discretion to the coordinator is therefore irrelevant for the purpose of determining whether the contested decision entails implementing measures (see, to that effect, order of 14 July 2015, Forgital Italy v Council, C‑84/14 P, not published, EU:C:2015:517, paragraphs 43 and 44, and judgment of 12 September 2013, Valeo Vision v Commission, T‑457/11, not published, EU:T:2013:414, paragraph 74).
61      It should also be noted that decisions of the coordinator rejecting slot requests from air carriers must be communicated to them (see paragraph 50 above). As the Commission observes, without being challenged in that regard by the applicants, such decisions may be the subject of an action before the competent Netherlands courts.
62      Thus, in the event that the coordinator rejects the applicants’ slot requests, in particular on the ground that the applicants do not benefit from the priority of the traffic distribution rules unlike other air carriers, the applicants could still challenge the rejection decision communicated to them by the coordinator by invoking the invalidity of the contested decision approving the priority of the traffic distribution rules in order to prompt the Netherlands courts to make a reference to the Court for a preliminary ruling on the validity of the latter.
63      It must therefore be held that the contested decision, approving the traffic distribution rules, entails implementing measures with regard to the applicants.
64      The other arguments put forward by the applicants cannot call that conclusion into question.
65      The applicants claim, in essence, that the reasoning set out in paragraphs 65 and 66 of the judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci
(C‑622/16 P to C‑624/16 P, EU:C:2018:873), is applicable by analogy to their situation, in so far as it would be artificial to require them to request slots from the coordinator even though they clearly did not fulfil the conditions for benefiting from the priority of traffic distribution rules, in order then to challenge the probable rejection of their request before the national courts.
66      In this regard, it should be recalled that, in paragraphs 64 to 66 of the judgment of 6 November 2018,
Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci
(C‑622/16 P to C‑624/16 P, EU:C:2018:873), the Court of Justice held, in essence, that, since the competitors of beneficiaries of a national measure which had been found not to constitute State aid within the meaning of Article 107(1) TFEU did not fulfil the conditions laid down by the national measure at issue in order to be eligible for the benefit thereof, it would have been artificial to require them to ask the national authorities to grant them that benefit and to challenge the act refusing to grant their request before a national court in order to cause that
national court to make a reference to the Court on the validity of the Commission’s decision concerning that measure.
67      The situation of those competitors is different from that of the beneficiaries of a State aid scheme, in respect of which a decision declaring such a scheme incompatible with the internal market or declaring that scheme compatible with that market subject to compliance with commitments entered into by the Member State concerned entails implementing measures. The latter may, subject to compliance with the conditions of eligibility laid down in national law, request the national authorities to grant them the aid as it would have been granted in the case of an unconditional decision declaring that scheme compatible with the internal market, and then challenge any refusal by those authorities before the national courts. By contrast, competitors of beneficiaries of a national measure which has been found to be compatible with Article 107(1) TFEU, who are not eligible for that aid, cannot do the same without that step being regarded as artificial.
68      As regards Ryanair, it should be noted at the outset that it could benefit from the priority of traffic distribution rules through the conversion or transfer of the historic slot meeting the conditions laid down in the implementing order (see paragraph 11 above) which it has at Schiphol Airport. In those circumstances, Ryanair cannot be regarded, unlike the appellants in the judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci
(C‑622/16 P to C‑624/16 P, EU:C:2018:873), as not being eligible for the national measure approved by the Commission and cannot therefore rely on that judgment.
69      As regards Laudamotion, it is true that it does not fulfil the conditions for benefiting from the priority of traffic distribution rules since it does not have historic slots at Schiphol Airport to convert or transfer to another carrier or the coordinator. Laudamotion does not therefore appear eligible for the national measure approved by the Commission in the contested decision.
70      However, contrary to what the applicants claim, that fact alone does not justify the application of the judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci
(C‑622/16 P to C‑624/16 P, EU:C:2018:873), by analogy to the present case.
71      First, it must be recalled that the position of the person pleading the right to bring proceedings must be taken into account in determining whether the contested EU act entails implementing measures or not (see, to that effect, judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 61, and of 28 October 2020, Associazione GranoSalus v Commission, C‑313/19 P, not published, EU:C:2020:869, paragraphs 38 and 39).
72      In the light of the implementing measures which the contested decision entails, namely the coordinator’s decisions after assessing the slot requests of the various carriers, Laudamotion’s position cannot be distinguished from that of beneficiaries of the priority of traffic distribution rules.
73      As is apparent in particular from paragraphs 58 and 59 above, the request for priority status in the light of the traffic distribution rules does not constitute a separate request from the slot request, but that priority is one of the criteria to be taken into account by the coordinator in its assessment in the context of the slot allocation process. Thus, in order to claim slots at Lelystad Airport, Laudamotion will be required, like any other carrier, to submit a slot request by informing the coordinator of all relevant information and the coordinator will have to decide on that request.
74      Second, the applicants have not shown that a slot request at Lelystad Airport submitted by Laudamotion, although not given the priority of traffic distribution rules, would be automatically defeated and would therefore be only artificial in nature.
75      In this respect, it should be recalled that it would be artificial or excessive to require an operator to request an implementing measure merely in order to be able to challenge that measure before the national courts (see, to that effect, judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 66). As Advocate General Wathelet stated in point 75 of his Opinion in Scuola Elementare Maria Montessori v Commission and Commission v Scuola Elementare Maria Montessori and Commission v Ferracci (C‑622/16 P to C‑624/16 P, EU:C:2018:229), it is necessary to avoid the applicants being ‘obliged to adopt behaviour which must, with absolute certainty, fail in order to have access to a court’.
76      It is true that, as a result of the application of the traffic distribution rules approved by the contested decision, the priority linked to Laudamotion’s new entrant status may be overridden by the priority of the traffic distribution rules benefiting another air carrier. As is apparent, in essence, from paragraph 57 above and from the explanatory note to the draft ministerial decree, in the event of equality between air carriers benefiting from new entrant priority, additional priority will be given to carriers benefiting from the priority of traffic distribution rules.
77      However, as the Commission rightly points out, the allocation of slots by the coordinator depends on the latter’s assessment of the competing requests of carriers (see paragraphs 58 to 62 above). That assessment is based on several factors, such as the number of slots available in the pool, the number of slot requests from air carriers for the scheduling of a given international air transport association (IATA) season as well as the new entrant priority and the priority of traffic distribution rules on which those carriers rely.
78      In that regard, it should be noted that Lelystad Airport will be opened to commercial aviation for the first time. That fact may influence the number of slots available in the pool and the new entrant status of the applicant air carriers, as can be inferred, in essence, from the applicants’ reply to the first question put by the Court in the context of the measure of organisation of procedure.
79      It should also be noted that the traffic distribution rules in no way require the air carriers concerned to transfer their point-to-point flights from Schiphol Airport to Lelystad Airport (see paragraphs 26 and 43 of the contested decision), such transfer being ‘voluntary in nature’ (see paragraph 85 of the contested decision). As is apparent from the notification from the Netherlands Government, the traffic distribution rules are merely an incentive and are based on the will of market participants.
80      Therefore, the applicants’ argument that, even if they requested slots from the coordinator, they would have virtually no chance of obtaining slots is not convincing. In that regard, the applicants claim that the priority status of air carriers benefiting from the priority of traffic distribution rules would result in them being awarded all the slots available or, in any event, the most attractive slots, whereas it is not economically viable or advantageous for the applicants not to obtain sufficient slots at Lelystad Airport. Furthermore, carriers apply for series of slots and not for specific slots, which benefits air carriers with a super-priority to be claimed over a whole series of slots.
81      The applicants cannot rely on the unsubstantiated premiss that air carriers eligible for the priority of traffic distribution rules will necessarily transfer their flights to Lelystad Airport in order to benefit from that priority, thereby creating a disproportionate demand for ‘super-priority’ carriers in the face of a limited supply of slots. The examples provided by the applicant to show that airlines could claim the priority of traffic distribution rules, possibly coupled with new entrant priority, are based solely on hypothetical behaviour of those market participants. Moreover, the likelihood or opportunity for the applicants to obtain several slots during the allocation process is not relevant for the purposes of assessing the existence of implementing measures.
82      Consequently, it cannot be concluded that Laudamotion’s slot request will automatically result in a refusal and that it would be artificial, within the meaning of the judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci
(C‑622/16 P to C‑624/16 P, EU:C:2018:873), to require it to submit a slot request to the coordinator.
83      It follows from all of the foregoing that the application by analogy of the judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci
(C‑622/16 P to C‑624/16 P, EU:C:2018:873), cannot be accepted and that the contested decision entails implementing measures with regard to the applicants (see paragraph 63 above). Therefore, the condition relating to the classification of the contested measure as a ‘regulatory act not entailing implementing measures’ within the meaning of the third limb of the fourth paragraph of Article 263 TFEU is not satisfied.
84      Without it being necessary to rule on the condition that the applicants must be directly concerned, it must be held that their action is not admissible under the second situation envisaged in paragraph 29 above.
Individual concern to the applicants
85      The Commission contends that the action is also inadmissible in respect of the first situation referred to in paragraph 29 above, that is to say,
where the contested measure is of direct and individual concern to an applicant.
86      As they confirmed in their reply to the Court’s questions, the applicants concede that they are not individually concerned by the contested decision.
87      According to the case-law, persons other than those to whom a decision is addressed may claim to be individually concerned by that measure, within the meaning of the fourth paragraph of Article 263 TFEU, 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 these factors distinguishes them individually just as in the case of the person addressed
(judgments of 15 July 1963, Plaumann v Commission, 25/62, EU:C:1963:17, p. 107; of 19 December 2013, Telefónica v Commission, C‑274/12 P, EU:C:2013:852, paragraph 46; and of 13 March 2018, European Union Copper Task Force v Commission, C‑384/16 P, EU:C:2018:176, paragraph 93).
88      The possibility of determining more or less precisely the number, or even the identity, of the persons to whom a measure applies by no means implies that it must be regarded as being of individual concern to them as long as that measure is applied by virtue of an objective legal or factual situation defined by it (see, to that effect, judgment of 19 December 2013, Telefónica v Commission, C‑274/12 P, EU:C:2013:852, paragraph 47, and of 16 May 2019, Pebagua v Commission, C‑204/18 P, not published, EU:C:2019:425, paragraph 36).
89      In the present case, the contested decision approves the air-traffic distribution rules, including the priority which they lay down, in so far as they comply with Article 19 of Regulation No 1008/2008. It must be observed that those rules are formulated in general terms and are likely to apply to the applicants in their objective capacity as air carriers in the same way as to all other air carriers.
90      It follows that the applicants are not individually concerned by the contested decision. Therefore, without it being necessary to rule on the condition that the applicants must be directly concerned, it must be held that their action is inadmissible on the basis of the second limb of the fourth paragraph of Article 263 TFEU.
Conclusion
91      It follows from all of the foregoing that the applicants do not have standing to bring proceedings. Consequently, without there being any need to rule on the alleged loss of interest in bringing proceedings relied on by the Commission in its response to the measure of organisation of procedure, the action must be dismissed as inadmissible.
92      In accordance with Article 142(2) of the Rules of Procedure, an intervention is ancillary to the main proceedings and becomes devoid of purpose when the application is declared inadmissible. In those circumstances, there is no need to rule on the application for leave to intervene submitted by the Kingdom of the Netherlands.
Costs
93      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
94      Furthermore, pursuant to Article 144(10) of the Rules of Procedure, the Kingdom of the Netherlands must bear its own costs relating to the application to intervene.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby orders:
1.      The action is dismissed.
2.      There is no need to rule on the application for leave to intervene submitted by the Kingdom of the Netherlands.
3.      Ryanair DAC and Laudamotion GmbH shall bear their own costs and pay the costs incurred by the European Commission.
4.      The Kingdom of the Netherlands shall bear its own costs relating to the application for leave to intervene.
Luxembourg, 12 July 2021.
Registrar
President
E. Coulon
A. M. Collins
*      Language of the case: English.