JUDGMENT OF THE GENERAL COURT (Sixth Chamber, Extended Composition)

13 December 2018 ( *1 )

(State aid – Airport and marketing services 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 – Concept 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)

In Case T‑591/15,

Transavia Airlines CV, established at Schiphol (Netherlands), represented by R. Elkerbout and M. Baneke, lawyers,

applicant,

v

European Commission, represented by L. Flynn and S. Noë, acting as Agents,

defendant,

concerning the application under Article 263 TFEU seeking the partial annulment of the Commission Decision (EU) 2015/1227 of 23 July 2014 on State aid SA.22614 (C‑53/07) implemented by France in favour of the Chamber of Commerce and Industry of Pau-Béarn, Ryanair, Airport Marketing Services and Transavia (OJ 2015 L 201, p. 109),

THE GENERAL COURT (Sixth Chamber, Extended Composition),

composed of G. Berardis, President, S. Papasavvas, D. Spielmann (Rapporteur), Z. Csehi and O. Spineanu-Matei, Judges,

Registrar: P. Cullen, Administrator,

having regard to the written part of the procedure and further to the hearing on 26 October 2017,

gives the following

Judgment ( 1 )

Background to the dispute

Measures at issue

1 The applicant, Transavia Airlines CV, is a ‘low-cost’ airline established in the Netherlands, which operates charter flights and regular routes from three airports in that country to over 100 destinations in Europe and North Africa.

2 Pau-Pyrénées airport (‘Pau airport’) is in the Department of Pyrénées-Atlantiques, in France. It is operated by the chambre de commerce et d’industrie (CCI) Pau Béarn (Pau Béarn Chamber of Commerce and Industry, ‘the CCIPB’). On 1 January 2007, ownership of Pau airport was transferred by the French Republic to a group of local authorities, the syndicat mixte de l’aéroport Pau-Pyrénées, whose members include the Nouvelle-Aquitaine Regional Council, the Departmental Council of Pyrénées-Atlantiques, the Urban Community of Pau Béarn Pyrénées and over a dozen municipal groups. On becoming the owner of Pau airport, the syndicat mixte replaced the State as concessionary authority and took over the concession agreement signed with the CCIPB, which therefore remained the operator of the airport after the transfer of ownership to the syndicat mixte.

3 On 23 January 2006, the CCIPB concluded an agreement with the applicant (‘the 2006 agreement’), under which the applicant undertook to operate a route with at least 156 flights a year between Pau airport and Schiphol airport, serving the city of Amsterdam (Netherlands), spread over at least three days a week. The applicant had to pay remuneration to use the infrastructure of Pau airport. That agreement had a term of three years from 26 April 2006, the start date of the route in question, and could be renewed for an additional period of two years.

4 The 2006 agreement also contained an undertaking by the applicant to provide marketing services consisting, inter alia, of advertisements on its website, in return for the CCIPB paying EUR 250000 for the first two years on the basis of 156 outbound flights a year. If the number of flights was less than that minimum, the payment would have to be proportionally adjusted. For the third year, the payment was set as EUR 12.50 per outbound passenger, with an annual limit of EUR 250000. The agreement also provided that, if the 2006 agreement was renewed, the applicant would receive set amounts per outbound passenger for the fourth and fifth years.

5 The 2006 agreement resulted in the CCIPB making payments totalling EUR 700000 to EUR 900000 to the applicant for the marketing services provided by the latter between 26 April 2006 and 29 October 2009. The 2006 agreement was tacitly renewed on 26 April 2009. However, the disappointing results on the route led the applicant to terminate the 2006 agreement. …

Procedure and forms of order sought

23 By application lodged at the Registry of the General Court on 13 October 2015, the applicant brought the present action.

24 By separate document lodged at the Registry of the General Court on 11 April 2016, the applicant applied for the adoption of measures of organisation of procedure, by which it requested that the Commission produce certain documents.

25 The Commission submitted its observations within the prescribed period.

26 Acting on a report of the Judge-Rapporteur, the General Court decided to open the oral procedure and, by way of the measures of organisation of procedure under Article 88 of its Rules of Procedure, invited the Commission and the applicant to respond to a number of questions and asked the Commission to produce a number of documents.

27 By decision of 21 June 2017, the Court decided to refer the case to the Sixth Chamber, Extended Composition.

28 The parties presented oral argument at the hearing on 26 October 2017.

29 The applicant claims that the Court should: – annul Article l(3) and, in so far as they concern the applicant, Articles 3 to 5 of the contested decision; – order the Commission to pay the costs.

30 The Commission claims that the Court should: – dismiss the action; – order the applicant to pay the costs.

Law

31 The applicant puts forward six pleas in law in support of the action, alleging: first, infringement of the principle of good administration enshrined in Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’), and of the rights of the defence; secondly, breach of Article 107(1) TFEU inasmuch as the Commission wrongly attributed the aid identified to the French Republic; thirdly, breach of Article 107(1) TFEU and an insufficient statement of reasons inasmuch as the Commission applied the market economy operator test incorrectly when it found that the 2006 agreement conferred an economic advantage; fourthly, breach of Article 107(1) TFEU inasmuch as the Commission unduly found that the alleged advantage was selective; fifthly, breach of Article 107(1) TFEU and a manifest error of assessment inasmuch as the Commission failed to assess whether the alleged advantage had actual adverse effects on competition; and, sixthly, breach of Articles 107(1) and 108(2) TFEU and a manifest error of assessment by the Commission in determining the amount of the aid to be repaid.

The first plea in law, alleging breach of the principle of good administration enshrined in Article 41 of the Charter and of the applicant’s rights of the defence

32 The applicant maintains that the Commission breached the principle of good administration enshrined in Article 41(1) and (2)(a) and (b) of the Charter by failing to give it an opportunity to make its views known before the contested decision was adopted and by denying it access to the administrative file. As a result, the Commission infringed the applicant’s rights of the defence. According to the applicant, those procedural errors are grounds for partially annulling the contested decision. …

46 It should be noted in that respect that the applicant is a party concerned within the meaning of Article 108(2) TFEU, and is therefore entitled to see the Commission’s investigation into the 2006 agreement conducted impartially and fairly within the meaning of Article 41(1) of the Charter, all the more so since a finding that the 2006 agreement is State aid is likely to have financial consequences for the applicant in terms of recovery of the amounts received.

47 However, the applicant’s line of argument is untenable when it contends that under Article 41(2) of the Charter it is entitled to have the Commission give it notice personally to submit its observations or to express its views by other means before the contested decision is made and to have access to the Commission’s administrative file on State aid.

48 Indeed, although the right to good administration under Article 41(1) of the Charter reflects the obligation to examine all aspects of the case carefully and impartially, Article 41(2) of the Charter, for its part, lists a series of rights that the European Union administration must uphold, including the rights of the defence, such as the right to be heard and the right to have access to the file. …

51 In that respect it should be noted, first, that since the applicant is a party concerned within the meaning of Article 108(2) TFEU, it cannot claim that the Commission infringed Article 41(2)(a) of the Charter because it did not ask the applicant personally for its observations on the aid investigation procedure. Granting a right to be contacted individually by the Commission, as the applicant claims, would in fact amount to changing the role that parties concerned play in State aid procedures, in essence as sources of information. The applicant’s argument that Article 41(1) and (2) of the Charter would become meaningless if an undertaking had to check every day in the Official Journal whether any investigations had been opened or decisions made in relation to it must therefore be rejected.

52 Furthermore, the fact that the Commission’s investigation related specifically to the 2006 agreement, to which the applicant was a party, and that the Commission would therefore have had no difficulty in identifying the applicant among all the potential parties concerned, did not mean that the Commission was obliged to give the applicant notice individually.

53 It should be noted that the ‘parties concerned’ to which Article 108(2) TFEU refers include not only the undertaking or undertakings benefiting from the aid, but those persons, undertakings or associations whose interests might be affected by the grant of the aid, in particular competing undertakings and trade associations. According to the case-law, there is, in other words, an indeterminate group of persons to whom notice must be given, and the publication of a notice in the Official Journal is an appropriate means of informing all the parties concerned (judgment of 14 November 1984, Intermills v Commission, 323/82, EU:C:1984:345, paragraph 17).

54 The Commission was therefore entitled merely to publish notice in the Official Journal that the procedure relating to the 2006 agreement had been instigated without thereby infringing the principle of good administration under Article 41 of the Charter. In that respect, the Commission took pains, in the extension decision, to invite the French authorities immediately to send a copy of that decision to the potential aid beneficiaries. …

The third plea in law, alleging breach of Article 107(1) TFEU and an insufficient statement of reasons inasmuch as the market economy operator test was applied incorrectly.

…

The first part, alleging that the Commission gave insufficient reasons for choosing to apply the incremental profitability analysis rather than a comparative analysis

…

157 Fifthly, the applicant argues that the Commission based its choice of an incremental profitability analysis on the 2014 guidelines. Those guidelines had in fact not yet entered into force when the 2006 agreement was signed and therefore did not apply for the purposes of assessing the 2006 agreement in the light of the market economy operator test. To apply them would conflict with the principle of legal certainty. The Community guidelines on financing of airports and start-up aid to airlines departing from regional airports, published in the Official Journal of the European Union on 9 December 2005 (OJ 2005 C 312, p. 1, ‘the 2005 guidelines’), which applied at the time in question, contained no guidance on applying that test. Accordingly, no assessment method could be determined from the guidelines applicable to the dispute.

158 In that respect, it should be noted that, under paragraph 171 of the 2014 guidelines, those guidelines have applied from 4 April 2014 and from that date have replaced the 1994 aviation guidelines, entitled ‘Application of Articles 92 and 93 of the EC Treaty and Article 61 of the EEA Agreement to State aids in the aviation sector’, published in the Official Journal of the European Communities on 10 December 1994 (OJ 1994 C 350, p. 5), as well as the 2005 guidelines.

159 Nevertheless, by a notice published in the Official Journal of 15 April 2014 (see paragraph 11 above), in view of the entry into force of the 2014 guidelines, the Commission invited the parties concerned to submit their observations on the measures in respect of which it had initiated formal investigation procedures, including those relating to Pau airport. In paragraphs 54 to 66 of the 2014 guidelines, the Commission explains why it believes incremental profitability analysis to be the most relevant criterion for the assessment of arrangements concluded between the airports and the airlines.

160 Accordingly, even though the 2006 agreement between the applicant and the CCIPB was concluded before the 2014 guidelines came into force, the Commission did explain why in its view an incremental profitability analysis was in principle preferable to a comparative analysis and did, moreover, enable the parties concerned, including the applicant, to express their views in that respect.

161 In addition, choosing the appropriate method for applying the market economy operator test, whether a comparative analysis or an incremental profitability analysis, bears on the objective concept of aid within the meaning of Article 107(1) TFEU. It is therefore for the Commission, under its obligation to analyse fully all the relevant elements of the arrangement concerned and of its context, in order to verify whether the beneficiary undertaking has received an advantage which it would not have obtained under normal market conditions (see paragraph 122 above), to choose the most appropriate method for applying that test, in the light of the circumstances of the case, and in that respect the 2014 guidelines form part of the context in which the contested decision was made.

162 The Commission therefore cannot be criticised for having reference to the 2014 guidelines when choosing the appropriate method by which to apply the market economy operator test, even though the 2006 agreement was concluded before the 2014 guidelines came into force.

163 The applicant’s argument concerning the 2014 guidelines must therefore be rejected.

164 It follows from the foregoing that the first part of the third plea in law must be rejected.

The second part, alleging that the Commission failed to fulfil its obligation to act diligently and impartially, alleging manifest errors of assessment and alleging that the contested decision gave insufficient reasons in respect of the incremental profitability analysis

165 According to the applicant, when performing the incremental profitability analysis, the Commission failed to fulfil its obligation to act diligently and impartially and committed manifest errors of assessment. Furthermore, the Commission did not give sufficient reasons for its findings.

166 Specifically, the applicant puts forward four complaints, alleging: first, that the Commission acted negligently by not entering into contact with the chartered accountant who audited the business plan; secondly, that the Commission envisaged too short a timescale; thirdly, that the Commission incorrectly disregarded the CCIPB’s rationale in concluding the 2006 agreement; and, fourthly, that the Commission failed to make it clear what revenues and benefits it had taken into account.

167 Since the fourth allegation concerns an insufficient statement of reasons, it should be examined before the other three allegations, after which the Court will examine the first, third and second allegations. …

– The Commission used too short a timescale

210 The applicant contends that the Commission envisaged too short a timescale when applying the market economy operator test. By asserting that a market economy operator, acting in place of the CCIPB, would not have counted on the 2006 agreement being renewed beyond the initial three-year term, the Commission failed to have regard for various special circumstances of the economic reality in which the applicant and airports operate when they undertake to collaborate.

211 The applicant argues in that respect, in the first place, that the Commission failed to take into account the average lifetime of its routes. A look at the routes operated since 2005 shows that its collaboration with destination airports generally lasted longer than three years and that a six-year period was not exceptional. From the time the 2006 agreement was signed the CCIPB could therefore reasonably assume that its collaboration with the applicant would continue beyond the first term and even beyond the timescale used in the business plan.

212 In the second place, the applicant contends that the Commission disregarded the fact that, by definition, it envisages longer-term collaborations. A market economy operator takes calculated risks to expand its business. For the applicant, launching a new route represented an investment that could only become profitable in the long term. Start-up losses on a new route are common in the aviation sector.

213 The initial agreement that the applicant would conclude with an airport would provide for the launch of a new route that would supposedly achieve advantages for both parties in the long term. A contractual term initially limited to three years does not in its view contradict the parties’ intention to collaborate in the long term. Operators do not conclude agreements in isolation from their actual context which includes the commercial model and the experience of the parties to the agreement. The 2006 agreement expressly provided that it could be extended. The applicant’s long-term outlook is also apparent from the intentions expressed during the contractual negotiations between the parties. Furthermore, the applicant’s initial extension of the 2006 agreement even though the route made a loss shows that it was making every effort to continue collaborating with the CCIPB beyond the first term of the agreement.

214 In the third place, the applicant submits that the Commission failed to take account of the 2008 global financial crisis two years after the 2006 agreement was concluded and a year before it could potentially be extended. That unforeseen circumstance, the applicant argues, is relevant to determining the timescale when the 2006 agreement was concluded, since it cast doubt on the profitability and lifetime of the route in question. At the time the 2006 agreement was concluded, the CCIPB had no duty to assume that the profitability and lifetime of the route would be adversely affected by the 2008 financial crisis.

215 The Commission claims that the applicant’s line of argument should be rejected.

216 In that respect, it is apparent from the case-law (see paragraph 120 above) that it is necessary to examine whether the Commission could correctly take the view that a market economy operator, acting in place of the CCIPB, would have assessed the value in concluding the 2006 agreement using the term of that agreement as a timeframe.

217 The conduct of a market economy operator is guided by prospects of profitability in the longer term (judgment of 21 March 1991, Italy v Commission, C‑305/89, EU:C:1991:142, paragraph 20). Where such an operator wishes to maximise its profit it is prepared to run calculated risks when determining the appropriate return to be expected on its investment.

218 In the present case, the Commission found in the contested decision that, when assessing the value in concluding the 2006 agreement, a market economy operator would have chosen the term of that agreement as the timeframe for its assessment. The Commission also found that a market economy operator would not have relied on the 2006 agreement being renewed on its expiry, whether under the same terms or under different terms, particularly as low-cost airlines such as the applicant were known to be very dynamic, whether in terms of launching and withdrawing routes or increasing and reducing frequencies. It inferred from the foregoing that any possible renewal of agreements was a distant future prospect that was too uncertain for a market economy operator to base reasonable economic decisions on that prospect (recitals 393 and 394 of the contested decision).

219 Similarly, the Commission found, in recital 439 of the contested decision, that the incremental profitability analysis had to be based on the period of application of the 2006 agreement as originally planned, and not on a longer period, because, when signing an agreement, a reasonable and prudent market economy operator could not bank on its renewal, whether under identical terms or under different terms.

220 Furthermore, it is clear that the 2006 agreement was only concluded for an initial term of three years, without an automatic renewal clause. Nor has the applicant specified what intentions the parties expressed during the pre-contractual negotiations as regards any longer term collaboration.

221 In that context, the Commission could, without committing an error, find that a market economy operator would have assessed the profitability of the 2006 agreement on the basis of the costs and revenues expected over its period of application, that is to say, three years.

222 Furthermore, the Commission was entitled to find, without thereby committing a manifest error of assessment, that it was very difficult for an airport operator to assess the likelihood of an airline wanting to continue to operate a route beyond the term to which it had committed itself in the airport services agreement, knowing as it did that airlines, and low-cost airlines in particular, have proven to be very dynamic in terms of launching and withdrawing routes (see recitals 355 and 394 of the contested decision). Accordingly, the Commission was entitled to find, without thereby committing an error, that a prudent market economy operator, acting in place of the CCIPB, would not have relied on an airline being willing to extend the operation of the route in question on the expiry of the 2006 agreement.

223 Admittedly, the CCIPB adopted a seven-year business plan, which therefore covered a period well beyond the term of the 2006 agreement. However, it is significant that the business plan prepared by the CCIPB is not in any respect binding on the applicant, which again becomes free to cease operating the route when the initial term of the 2006 agreement expires.

224 Accordingly, the Commission cannot be criticised for finding that a prudent market economy operator, acting in place of the CCIPB, taking calculated risks, could not, at the time the 2006 agreement was concluded, bank on the agreement being renewed.

225 Furthermore, the evidence that the applicant has produced to demonstrate that the average lifetime of the routes it operated went well beyond three years cannot be conclusive. The conduct of a market economy operator must be assessed by placing that operator in a situation as close as possible to that of the operator of Pau airport. As the Commission has noted, the initial term of the 2006 agreement concluded between the CCIPB and the applicant was only three years.

226 Lastly, as regards the applicant’s argument that the Commission incorrectly disregarded the unforeseen event consisting of the 2008 financial crisis, it should be noted that, for the purposes of applying the private investor test in particular, the only relevant evidence is the information which was available, and the developments which were foreseeable, at the time when the decision to make the investment was taken (judgments of 5 June 2012, Commission v EDF, C‑124/10 P, EU:C:2012:318, paragraph 105, and of 27 April 2017, Germanwings v Commission, T‑375/15, EU:T:2017:289, paragraph 66).

227 In the present case, when the Commission found in the contested decision that a prudent market economy operator would not have taken an extension of the 2006 agreement into consideration at the time it concluded that agreement, it did so as part of an ex ante profitability analysis of an investment made in 2006, not on the basis of unforeseeable subsequent factors.

228 Similarly, the fact that on 26 April 2009 the applicant did in fact renew the 2006 agreement is not a relevant factor.

229 In the light of the foregoing, it must be found that the Commission did not commit a manifest error of assessment when it found that, for the purposes of the incremental profitability analysis, a prudent market economy operator, acting in place of the CCIPB, would not, at the time of concluding the 2006 agreement, have used a timeframe going beyond the initial period of application of that agreement. …

Fifth plea in law, alleging breach of Article 107(1) TFEU and a manifest error of assessment inasmuch as the Commission failed to assess whether the 2006 agreement had actual adverse effects on competition

…

295 It follows that the fifth plea in law must be rejected.

Sixth plea in law, alleging breach of Articles 107(1) and 108(2) TFEU and a manifest error of assessment by the Commission in determining the amount of the State aid

296 The applicant contends that the Commission incorrectly equated the alleged advantage with the negative incremental flows of Pau airport.

297 It asserts in that regard that if, as it has done in the present case, the Commission decides to order recovery of a specific amount, it must determine as accurately as possible the actual value of the benefit received from the aid by the beneficiary. Relying on the judgment of 5 February 2015, Ryanair v Commission (T‑500/12, not published, EU:T:2015:73), it contends: first, that the Commission should have examined the extent to which the applicant passed the alleged advantage on to its passengers; secondly, that the Commission wrongly failed to assess the actual competitive advantage to the applicant resulting from the alleged losses of Pau airport; and, thirdly, that the Commission has not sufficiently explained why recovery of the amount in question was necessary in order to restore the previously existing situation since, on the one hand, all the positive external effects that the 2006 agreement brought to Pau airport should be allocated against that amount and, on the other hand, the applicant should not have to repay losses resulting from inefficient measures by Pau airport.

298 According to the applicant, the fact that determining the amount to be recovered might involve a complex process cannot justify the Commission failing to have regard for the principles set out in the judgment of 5 February 2015, Ryanair v Commission (T‑500/12, not published, EU:T:2015:73). In its view, it is not apparent from that judgment that the tax measures concerned necessarily have to be involuntary and indirect in order for those principles to apply.

299 The Commission rejects all the applicant’s arguments as unfounded.

300 It should be noted that the obligation on the Member State concerned to abolish and recover aid regarded by the Commission as incompatible with the internal market has as its purpose, according to the settled case-law, to restore the situation as it was before the aid was granted. That objective is attained once the aid in question, together, where appropriate, with default interest, has been repaid by the recipient or, in other words, by the undertakings which actually enjoyed the benefit of it. By repaying the aid, the recipient forfeits the advantage which it had enjoyed over its competitors on the market, and the situation prior to payment of the aid is restored (see judgment of 21 December 2016, Commission v Aer Lingus and Ryanair Designated Activity, C‑164/15 P and C‑165/15 P, EU:C:2016:990, paragraphs 89 and 90 and the case-law cited).

301 It must also be recalled that no provision of EU law requires the Commission, when ordering the recovery of aid declared incompatible with the internal market, to fix the exact amount of the aid to be recovered. It is sufficient for the Commission’s decision to include information enabling the recipient itself to work out that amount without overmuch difficulty (see judgment of 20 March 2014, Rousse Industry v Commission, C‑271/13 P, not published, EU:C:2014:175, paragraph 77 and the case-law cited).

302 However, if the Commission decides to order the recovery of a specific amount, it must – pursuant to its obligation to conduct a diligent and impartial examination of a case under Article 108 TFEU – assess, as accurately as the circumstances of the case will allow, the actual value of the benefit received from the aid by the undertaking (judgment of 30 April 2014, Dunamenti Erőmű v Commission, T‑179/09, not published, EU:T:2014:236, paragraph 177).

303 In restoring the situation existing prior to the payment of the aid, the Commission is, on the one hand, obliged to ensure that the real advantage resulting from the aid is eliminated and thus to order recovery of the aid in full. The Commission may not, out of sympathy with the beneficiary, order recovery of an amount which is less than the value of the aid received by the latter. On the other hand, the Commission is not entitled to mark its disapproval of the serious character of the illegality by ordering recovery of an amount in excess of the value of the aid received by the beneficiary (judgment of 30 April 2014, Dunamenti Erőmű v Commission, T‑179/09, not published, EU:T:2014:236, paragraph 198).

304 That case-law also applies where in its decision the Commission sets an indicative amount for the aid to be recovered.

305 In the present case, in order to determine the amount of aid to be recovered, the Commission calculated, for the 2006 agreement, the annual aid amount recoverable for each year during which that agreement applied, based on the negative part of the projected incremental flow (revenues less costs) at the time when the 2006 agreement was concluded, as determined by the incremental profitability analysis. The Commission stated that this amount corresponded to the sums that should be deducted each year from the amount for the marketing services or that should be added to the airport charges and groundhandling charges invoiced to the applicant so that the net present value of the 2006 agreement was positive, in other words so that this complies with the market economy operator principle (recital 589 of the contested decision).

306 It follows that the Commission did fulfil its obligation to calculate the value of the aid that the applicant received under the 2006 agreement. Indeed, contrary to the applicant’s contention, it is apparent from paragraph 305 above that, in order to do so, the Commission carried out an incremental profitability analysis and compared, on the one hand, the amounts that a market economy operator would have been prepared to pay for the marketing services or would have charged the applicant for supplying its airport services and, on the other, the amounts that the CCIPB actually paid or received.

307 In order to determine the amount of aid to be recovered, in contrast, the Commission was not under a duty to examine whether and to what extent the applicant actually utilised the economic advantage arising from the negative annual incremental flows it had obtained as a result of the 2006 agreement (see, to that effect, judgment of 21 December 2016, Commission v Aer Lingus and Ryanair Designated Activity, C‑164/15 P and C‑165/15 P, EU:C:2016:990, paragraph 100).

308 Recovery of unlawful aid in fact entails the restitution of the advantage procured by the aid for the recipient, not the restitution of any economic benefit the recipient may have enjoyed as a result of exploiting the advantage. That benefit may not be the same as the advantage constituting the aid and there may indeed be no such benefit, but that cannot justify any failure to recover that aid or the recovery of a different sum from that constituting the advantage procured by the unlawful aid in question (judgment of 21 December 2016, Commission v Aer Lingus and Ryanair Designated Activity, C‑164/15 P and C‑165/15 P, EU:C:2016:990, paragraph 92).

309 Accordingly, any decision by the applicant to pass on the advantage obtained as the result of the 2006 agreement fully or partially to its customers is irrelevant for the purposes of determining the amount of aid to be recovered (see, to that effect, judgment of 21 December 2016, Commission v Aer Lingus and Ryanair Designated Activity, C‑164/15 P and C‑165/15 P, EU:C:2016:990, paragraph 99).

310 Similarly, the advantage, as identified by the Commission in the contested decision, was not the fact that the applicant had been able to improve its competitive position on the market. It was, purely and simply, the fact that it had received the nominal amount of the negative annual incremental flows resulting from the 2006 agreement. The question whether it exploited that advantage in a particular way on the market in question relates to the assessment of any benefit it was able to accrue from the exploitation of the advantage granted; that assessment is irrelevant to the recovery of the aid (see, to that effect, judgment of 21 December 2016, Commission v Aer Lingus and Ryanair Designated Activity, C‑164/15 P and C‑165/15 P, EU:C:2016:990, paragraph 102).

311 Lastly, given that the Commission ordered recovery of the advantage, equal in amount to the projected incremental flow, arising from the 2006 agreement entered into with the CCIPB, acting as a market economy operator, it can be found that the contested decision merely restored the legal situation prior to payment of the aid (see, to that effect, judgment of 17 June 1999, Belgium v Commission, C‑75/97, EU:C:1999:311, paragraphs 64 to 66). Recovery of that amount removes the advantage that the applicant enjoyed over its competitors on the market, consisting of financial terms that it would not have been given under normal market conditions.

312 Neither the value of the purported positive externalities for Pau airport nor any inefficiency on the part of that airport are relevant to achieving the purpose of restoring the prior situation, which is fulfilled as soon as the applicant forfeits the advantage it enjoyed. For the sake of completeness, the market economy operator test, which is used in order to ascertain whether a measure confers an advantage, is not intended to require a minimum level of efficiency in carrying on an activity. Indeed, according to the case-law, use of that test is intended to ascertain whether, in similar circumstances, a comparable private investor could have been persuaded to grant the measure in question (see paragraph 119 above). In that respect, it is necessary to take into account the structure of the costs and revenues of the public entity whose conduct is being compared to that of a market economy operator.

313 It is apparent from the foregoing that the sixth plea in law cannot be upheld and the action must therefore be dismissed in its entirety.

Costs

314 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 applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Commission in accordance with the form of order sought by the latter.

On those grounds, THE GENERAL COURT (Sixth Chamber, Extended Composition) hereby:

1. Dismisses the action;

2. Orders Transavia Airlines CV to bear its own costs and to pay those incurred by the European Commission.

Berardis Papasavvas Spielmann Csehi Spineanu-Matei Delivered in open court in Luxembourg on 13 December 2018. [Signatures]

…

( *1 ) Language of the case: Dutch.

( 1 ) Only the paragraphs of this judgment that the Court considers it appropriate to publish are reproduced here.