Case T‑591/15

(publication by extracts)

Transavia Airlines CV

v

European Commission

(State aid — Airport services and marketing agreement — Agreement concluded between the Chamber of Commerce and Industry of Pau-Béarn and Transavia — Decision declaring the aid to be incompatible with the internal market and ordering its recovery — Notion of State aid — Whether imputable to the State — Chamber of Commerce and Industry — Advantage — Private investor test — Recovery — Article 41 of the Charter of Fundamental Rights — Right of access to the file — Right to be heard)

Summary — Judgment of the General Court (Sixth Chamber, Extended Composition), 13 December 2018

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

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 services and marketing agreement resulting in an advantage in favour of an airline — Presumption of selectivity — Need to compare the beneficiary with other operators in a comparable factual and legal situation — None

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 — Airport services and marketing agreement — Analysis of the profitability of those contracts

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 — Account taken of information available at the time the decision was taken relating to the measure at issue — Commission’s investigation obligations — Scope

Acts of the institutions — Statement of reasons — Obligation — Scope — Commission decision on State aid — Examination of the private investor test — Requirement for specific reasoning in respect of each technical choice or element for which figures given — None

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

State aid — Concept — Aid granted by regional or local bodies — Included — Chamber of Commerce and Industry — Classification of that entity as both a public authority and aid beneficiary — No error of law

State aid — Administrative procedure — Obligations of the Commission — Possibility for aid beneficiary to rely on rights as extensive as defence rights as such — None — Right of the aid beneficiary to be sufficiently associated with the proceedings — Scope

The European Commission does not infringe either the principle of good administration laid down by Article 41(1) and (2) of the Charter of Fundamental Rights of the European Union or the rights of defence of undertakings which are aid beneficiaries when it adopts a decision declaring that aid incompatible with the internal market and ordering its recovery without having granted those beneficiaries access to the administrative file and without having given them prior notice of the facts and considerations on which it intended to base that decision. In the procedure for reviewing State aid, the aid beneficiaries cannot rely on actual rights of defence. In that regard, the Charter is not intended to alter the nature of the review of State aid established by the TFEU or to confer on third parties a right of scrutiny which Article 108 TFEU does not provide. If the persons concerned in the context of a procedure for reviewing State aid were able to obtain access to the documents in the Commission’s administrative file, the system for the review of State aid under Article 108 TFEU would be called into question. Similarly, the obligation for the Commission to give the aid beneficiaries prior notification of the evidence on which it intends to base its final decision would amount to establishing an adversarial debate, such as that initiated for the Member State responsible for granting the aid, although those beneficiaries, essentially, play only the role of a source of information in the procedure. The persons concerned, within the meaning of Article 108(2) TFEU, have the right to be involved in the administrative procedure to the extent appropriate in the light of the circumstances of the case. Thus, the decision to initiate the formal investigation procedure must give the parties concerned the opportunity effectively to participate in that procedure, during which they will have the opportunity to put forward their arguments. For that purpose, it is sufficient for the parties concerned to be aware of the reasoning which has led the Commission to conclude provisionally that the measure in issue might constitute new aid incompatible with the internal market. (see paras 49-57, 64, 66)

See the text of the decision. (see paras 79-84, 98-104)

See the text of the decision. (see paras 108-111)

The conditions that a measure must meet in order to be regarded as ‘aid’, within the meaning of Article 107 TFEU are not fulfilled if the recipient undertaking, in circumstances corresponding to normal market conditions, could have obtained the same advantage as that made available to it through State resources. That assessment is made, in principle, by the application of the market economy operator test. Thus, in order to determine whether a measure constitutes State aid, it is necessary to determine whether, in similar circumstances, a market economy operator of a size comparable to that of the bodies managing the public sector might have been prompted to make the arrangement at issue. However, determining whether a market economy operator would have made such an arrangement cannot necessarily imply for the European Commission the obligation to use the comparative analysis method. That method is merely one analytical tool amongst others to determine if the recipient undertaking has received an economic advantage which it would not have obtained under normal market conditions. The selection of the appropriate tool is a matter for the Commission within the framework of its obligation to conduct a complete analysis of all factors that are relevant to the transaction at issue and its context, including the situation of the recipient undertaking and of the relevant market. It follows that, in a decision classifying State aid granted under airport services and marketing agreements as aid that is incompatible with the internal market, the Commission may, without committing an error, analyse in detail, what is the most appropriate assessment method to choose for the purposes of the application of the market economy operator test and opt, for those purposes, for the incremental profitability analysis method rather than the comparative analysis method. (see paras 119-123)

See the text of the decision. (see paras 143, 233)

See the text of the decision. (see paras 175-196)

See the text of the decision. (see paras 200-208)

See the text of the decision. (see paras 216-229, 235-253)

The requirement as to selectivity under Article 107(1) TFEU must be clearly distinguished from the concomitant detection of an economic advantage, in that, where the Commission has identified an advantage, understood in a broad sense, as arising directly or indirectly from a particular measure, it is also required to establish that that advantage specifically benefits one or more undertakings. It falls to the Commission to show that the measure, in particular, creates differences between undertakings which, with regard to the objective of the measure, are in a comparable situation. It is necessary therefore that the advantage be granted selectively and that it be liable to place certain undertakings in a more favourable situation than that of others. However, the selectivity requirement differs depending on whether the measure in question is envisaged as a general scheme of aid or as individual aid. In the latter case, the identification of the economic advantage is, in principle, sufficient to support the presumption that it is selective. By contrast, when examining a general scheme of aid, it is necessary to identify whether the measure in question, notwithstanding the finding that it confers an advantage of general application, does so to the exclusive benefit of certain undertakings or certain sectors of activity. It follows that an airport services and marketing agreement concluded between a public authority operating an airport and an airline is selective since it contains conditions specifically agreed between those parties and results in an advantage in favour of the airline. In that regard, it is not necessary to ascertain whether the contract at issue grants advantages to that airline company in relation to other operators in a comparable factual and legal situation. The test requiring a comparison of the beneficiary with other operators in a comparable factual and legal situation in the light of the aim pursued by the measure in question is based on, and justified by, the assessment of whether measures of potentially general application are selective. That test is therefore irrelevant where it would amount to assessing the selective nature of an ad hoc measure which concerns just one undertaking and is intended to modify certain competitive constraints which are specific to the undertaking. (see paras 272-280)

See the text of the decision. (see paras 284-292)