Appeal brought on 1 March 2019 by Ryanair DAC, formerly Ryanair Ltd, Airport Marketing Services Ltd against the judgment of the General Court (Sixth Chamber, Extended Composition) delivered on 13 December 2018 in Case T-111/15: Ryanair and Airport Marketing Services v Commission

(Case C-202/19 P)

(2019/C 164/35)

Language of the case: English

Parties

Appellants: Ryanair DAC, formerly Ryanair Ltd, Airport Marketing Services Ltd (represented by: E. Vahida, avocat, I.-G. Metaxas-Maranghidis, Δικηγόρος, G. Berrisch, Rechtsanwalt, B. Byrne, Solicitor)

Other party to the proceedings: European Commission

Form of order sought

The appellants claim that the Court should:

— set aside the judgment of the General Court of 13 December 2018 in Case T-111/15; and

— annul Articles 1(2), 2(4), 3, 4 and 5 of Commission Decision (EU) 2015/1226 (1) of 23 July 2014 on State aid SA.33963 (2012/C) (ex 2012/NN), or in the alternative, refer the case back to the General Court for reconsideration; and in any event

— order the Commission to pay the appellants’ costs of this appeal and of the procedure in Case T-111/15 before the General Court.

Pleas in law and main arguments

The appellants submit that the judgment under appeal should be set aside on the following g rounds.

First, the General Court misapplied Article 41 of the EU Charter of Fundamental Rights and the rights of defence of the appellants in the proceedings before the Commission. The General Court: erred in drawing a distinction between the specific rights in Article 41(2) of the Charter and the general right to good administration provided in Article 41(1) of the Charter; erred in finding that the rights in Article 41(2) of the Charter do not apply in State aid investigations; erred in finding that there is a conflict between Article 41(1) and (2) of the Charter and Articles 107 and 108 TFEU; and erred in finding that the appellants could merely be considered as a source of information in the investigation.

Second, the General Court violated Article 107(1) TFEU by misinterpreting the notion of advantage. The General Court: erred in concluding that there is no hierarchy of methodologies for applying the market economy operator (‘MEO’) test between the comparative analysis and other methods; erred in finding that the Commission was entitled to depart from the comparative analysis and reject the comparative evidence submitted by the appellants; and erred in concluding that, when applying the incremental profitability test, it is not necessary for the Commission to satisfy itself that the expected incremental costs and expected incremental non-aeronautical revenues reflect how an MEO would have operated the airport.

Third, the General Court erred in its assessment of imputability to the State by: affirming that there was no need to specify whether the joint operator of the airport ‘SMAC’ was a public undertaking; not applying the Stardust Marine indicators to distinguish between autonomy and imputation; and failing to provide a sufficient statement of reasons for doing so.

(1) Commission Decision (EU) 2015/1226 of 23 July 2014 on State aid SA.33963 (2012/C) (ex 2012/NN) implemented by France in favour of Angoulême Chamber of Commerce and Industry, SNC-Lavalin, Ryanair and Airport Marketing Services (notified under document C(2014) 5080) (JO 2015, L 201, p. 48).