Judgment of the General Court (Tenth Chamber) of 9 November 2022 –

Ryanair v Commission (Croatia Airlines; COVID-19)

(Case T‑111/21) ( )

(State aid – Croatian air transport market – Aid granted by Croatia to an airline in the context of the COVID-19 pandemic – Direct grant – Decision not to raise any objections – Action for annulment – Individual concern – Admissibility – Serious difficulties – Aid intended to make good the damage caused by an exceptional occurrence – Equal treatment – Freedom of establishment – Free provision of services – Assessment of the damage – Obligation to state reasons)

1. Action for annulment – Natural or legal persons – Concept of ‘regulatory act’ within the meaning of the fourth paragraph of Article 263 TFEU – Any measure of general application with the exception of legislative acts – Decision of the Commission concerning individual aid – Not included

(Art. 263, fourth para., TFEU)

(see paragraph 15)

2. Action for annulment – Natural or legal persons – Measures of direct and individual concern to them – Commission decision finding State aid compatible with the internal market without opening the formal investigation procedure – Action by parties concerned within the meaning of Article 108(2) TFEU – Action designed to safeguard the procedural rights of the parties concerned – Admissibility

(Arts 108(2) and 263, fourth para., TFEU; Council Regulation 2015/1589, Art. 1(h))

(see paragraphs 17, 19-21, 33, 34)

3. Action for annulment – Natural or legal persons – Measures of direct and individual concern to them – Individual concern – Criteria – Commission decision finding an aid compatible with the internal market – Action by an undertaking not demonstrating that its market position was substantially affected – Inadmissibility

(Art. 263, fourth para., TFEU)

(see paragraphs 18, 22-32)

4. Action for annulment – Natural or legal persons – Measures of direct and individual concern to them – Commission decision finding State aid compatible with the internal market without opening the formal investigation procedure – Action by parties concerned within the meaning of Article 108(2) TFEU – Identification of the subject matter of the action – Action designed to safeguard the procedural rights of the parties concerned – Pleas capable of being invoked

(Arts 108(2) and 263, fourth para., TFEU; Council Regulation 2015/1589, Art. 1(h))

(see paragraphs 36-39)

5. State aid – Planned aid – Examination by the Commission – Preliminary review and main review – Compatibility of aid with the internal market – Difficulties of assessment – Commission’s duty to initiate the main review procedure – Serious difficulties – Concept – Objective nature – Burden of proof – Circumstances enabling the existence of such difficulties to be established – Obligation for the Commission to seek, on its own initiative and in the absence of any evidence to that effect, potentially relevant information which was not brought to its attention – No such obligation

(Art. 108(2) and (3) TFEU; Council Regulation 2015/1589, Art. 4(3) and (4))

(see paragraphs 44-48)

6. State aid – Prohibition – Exceptions – Aid compatible with the internal market – Aid to make good the damage caused by natural disasters or exceptional occurrences – Restrictive interpretation – Requirement of correspondence between the amount of aid and the amount of damage

(Art. 107(2)(b) TFEU)

(see paragraphs 57, 58, 66)

7. State aid – Planned aid – Examination by the Commission – Preliminary review and main review – Compatibility of aid with the internal market – Difficulties of assessment – Commission’s duty to initiate the main review procedure – Serious difficulties – Concept – Objective nature – Burden of proof – Circumstances enabling the existence of such difficulties to be established – No such circumstances

(Arts 107(1) TFEU and 108(2) and (3) TFEU; Council Regulation 2015/1589, Art. 4(3) and (4))

(see paragraphs 73, 92, 102)

8. State aid – Prohibition – Exceptions – Aid compatible with the internal market – Aid to make good the damage caused by natural disasters or exceptional occurrences – Direct grant to an airline to compensate it for the COVID-19 pandemic – Assessment in the light of Article 107(2)(b) TFEU – Criteria

(Art. 107(2)(b) TFEU)

(see paragraphs 95-97, 100)

9. State aid – Prohibition – Exceptions – Aid compatible with the internal market – Aid to make good the damage caused by natural disasters or exceptional occurrences – Direct grant to an airline to compensate it for the COVID-19 pandemic – Assessment in the light of Article 107(2)(b) TFEU – Assessment of compatibility with the principle of non-discrimination – Criteria – Objective of the aid – Need for the aid – Proportionality of the aid

(Art. 107(2)(b) TFEU)

(see paragraphs 107-127)

10. Freedom to provide services – Provisions of the TFEU – Scope of application – Services in the transport sector within the meaning of Article 58(1) TFEU – Air transport services – Specific legal regime

(Arts 56, 58(1) and 100(2) TFEU)

(see paragraphs 130, 131)

11. State aid – Prohibition – Exceptions – Aid compatible with the internal market – Aid to make good the damage caused by natural disasters or exceptional occurrences – Direct grant to an airline to compensate it for the COVID-19 pandemic – Aid compatible with the internal market pursuant to Article 107(2)(b) TFEU – Infringement of the freedom to provide services and the freedom of establishment – No such infringement

(Arts 58(1), 100(2) and 107(2)(b) TFEU)

(see paragraphs 133, 134)

12. State aid – Commission decision not to raise objections to an aid scheme – Obligation to state reasons – Scope – Account taken of the context and all the legal rules governing the matter

(Arts 107(2)(b) and 296 TFEU)

(see paragraphs 144-150)

Operative part

The Court:

1. Dismisses the action;

2. Orders Ryanair DAC to bear its own costs and to pay those incurred by the European Commission;