Judgment of the General Court (Fifth Chamber) of 29 September 2021 –

Ryanair and Others v Commission

(Case T‑448/18)

(State aid – Agreements concluded by Kärntner Flughafen Betriebsgesellschaft with Ryanair and its subsidiaries Airport Marketing Services and Leading Verge.com – Airport services – Marketing services – Decision declaring the aid incompatible with the internal market and ordering its recovery – Concept of State aid – Whether imputable to the State – Advantage – Private investor test – Recovery – Article 41 of the Charter of Fundamental Rights – Right of access to the file – Right to be heard)

1. Judicial proceedings – Time limit for producing evidence – Article 85(3) of the Rules of Procedure of the General Court – Submission of evidence before the oral part of the procedure is closed – Whether permissible – Conditions – Delay – Justification – None (Rules of Procedure of the General Court, Art. 85(3)) (see paras 57, 63)

2. Action for annulment – Review of legality – Criteria – Account taken only of elements of fact and law existing at the date on which the contested measure was adopted (Art. 263 TFEU) (see para. 69)

3. State aid – Recovery of unlawful aid – Ten-year limitation period laid down in Article 17 of Regulation 2015/1589 – Point from which the limitation period starts to run – Date on which aid granted to the beneficiary (Art. 108(2) TFEU; Regulation 2015/1589, Art. 17) (see para. 70)

4. State aid – Recovery of unlawful aid – Ten-year limitation period laid down in Article 17 of Regulation 2015/1589 – Application both to the Member State concerned and to the beneficiary and third parties – Interruption of the limitation period by several requests for information sent by the Commission to the Member State concerned and the beneficiary (Art. 108(2) TFEU; Regulation 2015/1589, Art. 17) (see paras 71-76)

5. Acts of the institutions – Statement of reasons – Obligation – Scope – Commission decision on State aid – Reference to the dates of adoption by the Commission of measures which may interrupt the limitation period provided for in Article 17 of Regulation 2015/1589 – Sufficient statement of reasons (Arts 107(1) and 296 TFEU) (see paras 80-85, 256)

6. State aid – Administrative procedure – Obligations of the Commission – Possible for aid beneficiary to rely on rights as extensive as defence rights as such – Absence – Right of the aid beneficiary to be involved in the procedure to the extent appropriate – Scope (Art. 108(2) TFEU; Charter of Fundamental Rights of the European Union, Art. 41) (see paras 96-112, 116, 117, 124-127)

7. State aid – Concept – Aid granted to a public undertaking – Undertaking controlled by the State – Imputability to the State of the aid measure – Set of indicators to be taken into consideration – Airport and marketing services agreements providing an advantage to an airline concluded by two undertakings wholly controlled by the State – Included (Art. 107(1) TFEU) (see paras 140-151)

8. State aid – Concept – Selective nature of the measure – Distinction between the requirement for selectivity and the concomitant detection of an economic advantage, and between an aid scheme and individual aid – Individual aid – Airport and marketing services agreements providing an advantage to an airline – Presumption of selectivity – Need to compare the beneficiary with other operators in a comparable factual and legal situation having regard to the objective pursued by the measure – None (Art. 107(1) TFEU) (see paras 155-164)

9. State aid – Concept – Assessment according to the criterion of the private investor – Complex evaluation of economic matters – Discretion of the Commission – Judicial review – Limits (Art. 107(1) TFEU) (see paras 171-174)

10. State aid – Concept – Assessment according to the criterion of the private investor – State shareholder of an undertaking – State acting as a public authority – Distinction as regards application of the investor test – Airport and marketing services agreements with an airline providing for remuneration closely linked to the operation of the air services – Economic advantage granted by the State as an economic operator and not as a public authority (Art. 107(1) TFEU) (see paras 178-185)

11. State aid – Concept – Assessment according to the criterion of the private investor – Assessment of all factors relevant to the transaction at issue and its context – No hierarchy between the comparative analysis method and other methods of assessment (Art. 107(1) TFEU) (see paras 190-194)

12. State aid – Concept – Assessment having regard to Article 107(1) TFEU – Taking into account previous practice – Not included (Art. 107(1) TFEU) (see paras 216, 324, 381)

13. State aid – Concept – Assessment according to the criterion of the private investor – Assessment in the light of all the relevant factors and the context of the contested measure – Taking into account the information available at the time the decision was taken relating to the measure at issue – The Commission’s investigation obligations – Scope (Art. 108(2) TFEU) (see paras 271-274, 291)

14. State aid – Concept – Assessment according to the criterion of the private investor – Reasonableness of the operation for a private investor following a relatively long-term strategy – Airport and marketing services agreements providing an advantage to an airline – Analysis of the profitability of the agreements – Assessment carried out by limiting the time frame to the duration of the agreements – Whether permissible (Art. 107(1) TFEU) (see paras 313-322)

15. State aid – Concept – Assessment according to the criterion of the private investor – Assessment of all factors relevant to the transaction at issue and its context – Obligation on the Member State to provide all of the relevant elements for the examination of the criterion of the private investor – Obligation on the Commission to base its decision on complete and reliable evidence (Arts 107 and 108(2) TFEU) (see paras 329, 330)

16. State aid – Concept – Grant of an advantage to the beneficiaries – Airport and marketing services agreements – Analysis of the profitability of the agreements – Taking into account the aid granted to the airport manager in order to partially finance those agreements as marginal revenue – Absence (Art. 107(1) TFEU) (see paras 337-345)

17. State aid – Recovery of unlawful aid – Restoration of the prior situation – Calculation of the amount to be recovered – Obligation on the Commission to fix an amount actually corresponding to the real advantage of the aid – Scope – Advantage resulting from the conclusion of airport and marketing services agreements – Method of calculation – Amount determined solely on the basis of ex ante evidence and subject to adjustment in the light of evidence subsequently produced by the Member State – Whether permissible (Art. 108 TFEU) (see paras 414-420, 424-429)

Re:

Application under Article 263 TFEU seeking the partial annulment of Commission Decision (EU) 2018/628 of 11 November 2016 on State aid SA.24221(2011/C) (ex 2011/NN) implemented by Austria for the Klagenfurt airport, Ryanair and other airlines using the airport (OJ 2018 L 107, p. 1), in so far as it concerns the applicants.

Operative part

The Court:

1. Dismisses the action;