EN Official Journal of the European Union C 152/9

Appeal brought on 29 January 2018 by the European Commission against the judgment of the General Court of 17 November 2017 in Case T-263/15, Gmina Miasto Gdynia and Port Lotniczy Gdynia-Kosakowo v Commission

(Case C-56/18 P)

(2018/C 152/11)

Language of the case: Polish

Parties

Appellant: European Commission (represented by: K. Herrmann, D. Recchia and S. Noë, acting as Agents)

Other parties to the proceedings: Gmina Miasto Gdynia, Port Lotniczy Gdynia-Kosakowo sp. z o.o., Republic of Poland

Form of order sought

The appellant claims that the Court should:

— set aside the judgment of the General Court of 17 November 2017 in Case T-263/15, Gmina Miasto Gdynia and Port Lotniczy Gdynia-Kosakowo v Commission;

— reject the third complaint in the sixth plea in law as unfounded;

— refer the case back to the General Court in order that it may re-examine the remaining five pleas in law; in the alternative:

— set aside the judgment of the General Court of 17 November 2017 in Case T-263/15 Gmina Miasto Gdynia and Port Lotniczy Gdynia-Kosakowo v Commission in so far as point 1 of its operative part also includes a decision on the investment aid;

— refer the case back to the General Court in order that it may re-examine the remaining five pleas in law;

— reserve the costs of the proceedings at first instance and on appeal.

Grounds of appeal and main arguments

The Commission considers that the judgment of the General Court in Case T-263/15 (‘the judgment under appeal’) should be set aside, because it is vitiated by errors of law, which the Commission has divided into three grounds of appeal:

1. Incorrect legal classification of ‘the right of the parties concerned to submit their comments’ and the legal consequences of infringing that right in the light of the judgment of the Court in Ferriere Nord v Commission, C-49/05 P.

The contested Decision 2015/1586/EU (1) based its finding that the operating aid for Port Lotniczy Gdynia-Kosakowo (‘PLGK’) was incompatible with the internal market on two independent grounds. The main ground for that incompatibility was the incompatibility of the investment aid with the internal market (see recital 244 of the contested decision). The failure to fulfil the first criterion set out in the 2014 Guidelines as regards the operating aid contributing to a well-defined objective of common interest was only the second, complementary ground for declaring that aid to be incompatible with the internal market.

However, the reasoning of the General Court in paragraphs 71 to 89 of the judgment under appeal was based on the assumption that the incompatibility of the operating aid for PLGK with the internal market is based exclusively on the application of the 2014 Guidelines, and the General Court therefore conducted its analysis in the light of the judgment in Ferriere Nord v Commission, C-49/05 P. That assumption was based on an incorrect interpretation of the contested decision, in particular recitals 244 and 245 thereof (see the second ground of appeal, below). If the General Court had correctly interpreted the contested decision in that regard, it would have had to find that an examination of the third complaint in the sixth plea in law was ineffective from the outset, and hence could not lead to a finding that the contested decision was unlawful.

In paragraphs 69 to 89 of the judgment under appeal, the General Court made two errors of law, because it applied ‘the right to submit comments’ conferred on the parties concerned by Article 108(2) TFEU in a manner contrary to the judgment of the Court in Ferriere Nord v Commission, C-49/05 P, paragraphs 78 to 84. The first ground of appeal is divided into two parts:

(i) the General Court erred in its legal classification of ‘the right of the parties concerned to submit their comments’ in the situation giving rise to the judgment under appeal as ‘an essential procedural requirement’, failure to comply with which automatically leads to a finding that the Commission’s decision was unlawful, without establishing the effect of that failure to comply on the situation of one of the parties and the operative part of the decision (paragraphs 70, 81 and 83 of the judgment under appeal).

(ii) however, even assuming — as the General Court did — that the incompatibility of the operating aid for PLGK with the internal market was based on application of the 2014 Guidelines — quod non — the General Court incorrectly interpreted and applied the judgment of the Court in Ferriere Nord v Commission, C-49/05 P, in that regard. This is because, in fact, the provisions of the 2014 Guidelines applied in assessing the operating aid were, in essence, the same as the provisions applied in the withdrawn decision on the basis of the 2005 Guidelines, and thus the comments of the parties concerned regarding the 2014 Guidelines could not have had any effect on the operative part of the decision in that regard.

2. Incorrect interpretation of the contested decision and of the Commission’s withdrawn decision.

The General Court’s finding, in paragraph 89 of the judgment under appeal, that the contested decision is unlawful is based on an incorrect interpretation, in paragraphs 84 to 87 of that judgment, of the ground of the incompatibility of the operating aid with the internal market set out in recital 244 of the contested decision as being based on the 2014 Guidelines and the withdrawn Decision 2014/883/EU. (2) The incorrect interpretation of recital 244 of the contested decision was the result of an incorrect interpretation of recital 245 of that decision.

In recital 244 of the contested decision, the Commission made reference to recital 227 of withdrawn Decision 2014/883/EU, repeating the conclusion reached in that decision that ‘granting operating aid in order to ensure the operation of an investment project that benefits of incompatible investment aid is inherently incompatible with the internal market’. In the next sentence of recital 244 the Commission justified that conclusion as follows: ‘Without the incompatible investment aid Gdynia airport would not exist, as it is entirely financed by that aid, and operating aid cannot be granted for non-existent airport infrastructure.’

In recital 245, however, the Commission stated that ‘that conclusion under the 2005 Aviation Guidelines is equally valid under the 2014 Aviation Guidelines and sufficient to find that the operating aid granted to the airport operator is incompatible with the internal market.’

The expression ‘valid under the 2014 Aviation Guidelines’ used in recital 245 of the contested decision does not mean that it results from those Guidelines. The idea is that it cannot be affected by application of the provisions of the 2014 Guidelines. It is apparent from recital 245 of the contested decision as cited above that the incompatibility of the operating aid with the internal market resulting from the incompatibility of the investment aid is independent (being based on other arguments) of the 2014 Guidelines. The slight ‘imprecision’ regarding the withdrawn decision which was pointed out by the General Court in paragraph 85 of the judgment under appeal is not capable of calling the legal propriety of the abovementioned conclusion of the contested decision into question.

3. Ground of appeal: point 1 of the operative part of the judgment under appeal is disproportionate.

In the alternative, should the Court reject the preceding grounds of appeal, the Commission emphasises that point 1 of the operative part of the judgment under appeal, annulling Articles 2 to 5 of the contested decision in their entirety, is disproportionate. By including a decision on the investment aid, it goes beyond the scope of the finding, made in paragraphs 71 to 89 of that judgment, that the contested decision is unlawful in relation to the operating aid. The General Court incorrectly found that the contested decision is not severable, on the basis of the wording of Article 2 thereof. However, according to settled case-law, the criterion governing severability of an act is whether the result of annulling part of that act would be a change in its substance. Annulling the contested decision in relation to the operating aid would not change the substance of the contested decision, because that decision would still apply to the investment aid for PLGK.

(1) Commission Decision (EU) 2015/1586 of 26 February 2015 on measure SA.35388 (13/C) (ex 13/NN and ex 12/N) — Poland — Setting up the Gdynia-Kosakowo airport (notified under document C(2015) 1281) (OJ 2015 L 250, p. 165).

(2) Commission Decision of 11 February 2014 on the measure SA.35388 (13/C) (ex 13/NN and ex 12/N) — Poland — Setting up the Gdynia-Kosakowo Airport (notified under document C(2014) 759) (OJ 2014 L 357, p. 51).