Case T-123/09

Ryanair Ltd

v

European Commission

‛State aid — Loan granted to an airline company and capable of being counted as own capital — Decision declaring the aid incompatible with the common market — Sale of assets of an airline company — Decision finding no aid at the conclusion of the preliminary examination phase — Actions for annulment — Locus standi — Interested party — Admissibility — Serious difficulties — Jurisdiction — Duty to state reasons’

Summary of the Judgment

Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Action brought by the parties concerned within the meaning of Article 88(2) EC — Right to invoke all the pleas of illegality listed in Article 230, second indent, EC — Pleas seeking to obtain a judgment ruling on the existence or the compatibility of a State aid measure with the common market — Inadmissibility

Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Commission decision finding State aid compatible with the common market without opening the formal investigation procedure — Action brought by the parties concerned within the meaning of Article 88(2) EC — Identification of the subject-matter of the action — Action designed to safeguard the procedural rights of the persons concerned — Pleas capable of being invoked

In the field of State aid control, the lawfulness of a decision not to raise objections, adopted under Article 4(3) of Regulation No 659/1999 laying down detailed rules for the application of Article [88] EC, depends on whether there are doubts as to the compatibility of the aid with the common market. Since such doubts must trigger the initiation of a formal investigation procedure in which the interested parties referred to in Article 1(h) of Regulation No 659/1999 can participate, it must be held that any interested party within the meaning of the latter provision is directly and individually concerned by such a decision. If the beneficiaries of the procedural guarantees provided for in Article 88(2) EC and Article 6(1) of Regulation No 659/1999 are to be able to ensure that those guarantees are respected, it must be possible for them to challenge before the European Union judicature the decision not to raise objections. Accordingly, the specific status of ‘interested party’ within the meaning of Article 1(h) of Regulation No 659/1999, in conjunction with the specific subject-matter of the action, is sufficient to distinguish individually, for the purposes of the fourth paragraph of Article 230 EC, the applicant contesting a decision not to raise objections. Under that provision, ‘interested party’ means inter alia any person, undertaking or association of undertakings whose interests might be affected by the granting of aid, that is to say, in particular competing undertakings of the beneficiary of that aid. In other words, it means an indeterminate group of addressees. (see paras 63-65)

In the field of State aid control, where an applicant seeks the annulment of a decision not to raise objections, it essentially contests the fact that the Commission adopted the decision in relation to the aid at issue without initiating the formal investigation procedure, thereby infringing the applicant’s procedural rights. In order to have its action for annulment upheld, the applicant may invoke any plea to show that the assessment of the information and evidence which the Commission had at its disposal during the preliminary examination phase of the measure notified should have raised doubts as to the compatibility of that measure with the common market. The use of such arguments does nothing, however, to bring about a change in the subject-matter of the action or in the conditions for its admissibility. On the contrary, the existence of doubts concerning that compatibility is precisely the evidence which must be adduced in order to show that the Commission was required to initiate the formal investigation procedure under Article 88(2) EC and Article 6(1) of Regulation No 659/1999. (see para. 66)

When an applicant seeks to safeguard its procedural rights pursuant to Article 88(2) EC, it may rely on any of the grounds set out in the second paragraph of Article 230 EC, provided that they are directed at the annulment of the contested decision and, in any event, the initiation by the Commission of the procedure referred to in Article 88(2) EC. On the other hand, it is not for the General Court to rule at that stage of the Commission’s procedure for examination of aid on whether aid exists or whether it is compatible with the common market. (see para. 74)

State aid, as defined in the Treaty, is a legal concept which must be interpreted on the basis of objective factors. For that reason, the EU Courts must in principle, having regard both to the specific features of the case before them and to the technical or complex nature of the Commission’s assessments, carry out a comprehensive review as to whether a measure falls within the scope of Article 87(1) EC. This is all the more true in view of the fact that, according to settled case-law, if the Commission is unable to conclude, following an initial examination in the context of the procedure under Article 88(3) EC, that the State measure in question either is not ‘aid’ within the meaning of Article 87(1) EC or, if classified as aid, is compatible with the Treaty, or where that procedure does not enable it to overcome all the difficulties involved in determining whether the aid is compatible with the common market, the Commission is under a duty to initiate the procedure under Article 88(2) EC, ‘without having any discretion in that regard’. That obligation is moreover expressly confirmed by the combined provisions of Articles 4(4) and 13(1) of Regulation No 659/1999. (see paras 75-76)

Concerning the question whether the Commission is required to open the formal procedure for investigating State aid, the concept of serious difficulties is an objective one. The existence of such difficulties must be sought both in the circumstances in which the contested measure was adopted and in its content, in an objective manner, comparing the grounds of the decision with the information available to the Commission when it took a decision on the compatibility of the disputed aid with the common market. The applicant bears the burden of proving the existence of serious difficulties and may discharge that burden of proof by reference to a body of consistent evidence, concerning, first, the circumstances and the length of the preliminary examination procedure and, secondly, the content of the contested decision. Although it has no discretion in relation to the decision to initiate the formal investigation procedure, where it finds that such difficulties exist, the Commission nevertheless enjoys a certain margin of discretion in identifying and evaluating the circumstances of the case in order to determine whether or not they present serious difficulties. In accordance with the objective of Article 88(3) EC and its duty of good administration, the Commission may, amongst other things, engage in talks with the notifying State or with third parties in an endeavour to overcome, during the preliminary procedure, any difficulties encountered. That power presupposes that the Commission may bring its position in line with the results of the dialogue it engaged in, without that alignment having to be interpreted, a priori, as establishing the existence of serious difficulties. If the examination carried out by the Commission during the preliminary examination procedure is insufficient or incomplete, that constitutes evidence of the existence of serious difficulties. (see paras 77-79)

In the field of State aid control, the Commission has the power to adopt, on the basis of Article 4(2) of Regulation No 659/1999, a decision whereby, while finding the absence of State aid, it takes note of undertakings entered into by the Member State. (see para. 96)

The lawfulness of a decision concerning State aid falls to be assessed by the European Union judicature in the light of the information available to the Commission at the time when the decision was adopted. The Commission is not obliged to examine of its own motion and by way of guesswork what matters might have been brought before it during the administrative procedure. (see paras 103-104)

In the field of State aid control, the obligation to recover aid paid to a company in difficulty may be extended to a new company to which the company in question has transferred part of its assets, where that transfer permits the conclusion that there is an economic continuity between the two companies. For a finding of the existence of an economic continuity, the following factors may be taken into consideration: the subject-matter of the transfer (assets and liabilities, maintenance of the workforce, grouped assets), the price of the transfer, the identity of the shareholders or the owners of the undertaking which takes over and of the initial undertaking, the time at which the transfer takes place (after the beginning of the investigation, the opening of the procedure or the final decision) or the economic logic of the operation. The Commission is, however, under no obligation to take all of those factors into account. (see paras 155-156)

As regards a Commission decision finding that State aid objected to by a complainant does not exist, the Commission must, by way of reasoning, at least provide the complainant with an adequate explanation of the reasons why the factual and legal material relied on in the complaint has failed to demonstrate the existence of State aid. The Commission is not required, however, to define its position on matters which are manifestly irrelevant or insignificant or plainly of secondary importance. Such a decision, adopted at the end of the preliminary stage of the procedure for reviewing aid under Article 88(3) EC, which is intended merely to allow the Commission to form a prima facie opinion on the partial or complete compatibility of the aid in question without opening the formal investigation procedure under paragraph (2) of the said article, and which is taken within a short period of time, must simply set out the reasons why the Commission takes the view that it is not faced with serious difficulties in assessing the compatibility of the aid at issue with the common market. Therefore, the duty to state reasons does not require the Commission to set out in its decision factors other than the facts and the legal considerations having decisive importance in the context of the decision. Such a statement of reasons is sufficient to inform the applicant of the justifications for the contested decision and enable the General Court to review its legality on the basis of Article 253 EC. (see paras 180-182, 185)