Case T‑165/15

(publication by extracts)

Ryanair DAC, formerly Ryanair Ltd and Airport Marketing Services Ltd

v

European Commission

(State aid — Agreements between the Chamber of Commerce and Industry of Pau-Béarn and Ryanair and its subsidiary Airport Marketing Services — Airport services — Marketing services — Decision declaring the aid incompatible with the internal market and ordering its recovery — Notion of State aid — Imputability 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)

Summary — Judgment of the General Court (Sixth Chamber, Extended Composition), 13 December 2018

State aid — Concept — Selective nature of the measure — Distinction between the requirement of selectivity and the concomitant detection of an economic advantage and between a general scheme of aid and individual aid — Individual aid — Airport and marketing services agreements providing an advantage to an airline — Presumption of selectivity — Necessity of comparing the beneficiary with other operators in a comparable factual and legal situation — None

State aid — Concept — Assessment according to the criterion of the private investor — Assessment of all factors relevant to the transaction at issue and its context — Taking into account available information at the time when the decision on the measure in question is adopted — The Commission’s investigation obligations — Scope

Acts of the institutions — Statement of reasons — Obligation — Scope — Commission decision on State aid — Examination of the private investor test — Requirement for specific reasoning in respect of each technical choice or element for which figures given — None

State aid — Concept — Assessment according to the criterion of the private investor — Assessment of all factors relevant to the transaction at issue and its context — Complex package formed by airport and marketing services — Taking into account foreseeable negative return — Lawfulness — Analysis of the profitability of that complex package

State aid — Concept — Assessment according to the criterion of the private investor — Assessment of all factors relevant to the transaction at issue and its context — Absence of hierarchy between the comparative analysis and other methods of assessment

State aid — Concept — Aid granted by regional or local bodies — Included — Chamber of Commerce and Industry — Classification of that entity both as a public authority and as an aid beneficiary — Absence of error of law

State aid — Administrative procedure — Obligations of the Commission — Whether possible for aid beneficiary to rely on rights as extensive as defence rights as such — No such possibility — Right of the aid beneficiary to be involved in the procedure to the extent appropriate — Scope

By adopting a decision declaring aid incompatible with the internal market and ordering its recovery without having granted undertakings in receipt of aid access to the file or given notice beforehand of the facts and considerations on which it intended to base that decision, the Commission did not disregard the principle of good administration in Article 41(1) and (2) of the Charter of Fundamental Rights of the European Union or the rights of those recipient undertakings. In the procedure for reviewing State aid, the beneficiaries of the aid cannot rely on actual rights of defence. In this respect, the Charter was not intended to alter the nature of the review of State aid established by the Treaty FEU or to confer on third parties a right of scrutiny which Article 108 TFEU did not provide. In that regard, if the persons concerned in the context of a procedure for reviewing State aid were able to obtain access to the documents in the Commission’s administrative file, the system for the review of State aid would be called into question. Similarly, the obligation for the Commission to send the applicants prior notification of the evidence on which it intends to base its final decision would amount to establishing an adversarial debate such as that initiated for the Member State responsible for granting the aid, although the applicants, as beneficiaries, essentially play only the role of a source of information in the procedure. However, the parties concerned, within the meaning of Article 108(2) TFEU, have a right to be involved in the administrative procedure to the extent appropriate in the light of the circumstances of the case. Thus, a decision to initiate the formal investigation procedure must give the parties concerned the opportunity effectively to participate in that procedure, during which they will have the opportunity to put forward their arguments. For that purpose, it is sufficient for the parties concerned to be aware of the reasoning which has led the Commission to conclude provisionally that the measure in issue might constitute new aid incompatible with the internal market. (see paras 63-66, 68, 79, 82)

See the text of the decision. (see paras 95-101, 116-122)

See the text of the decision. (see paras 128-131)

The conditions which a measure must meet in order to be treated as ‘aid’ for the purposes of Article 107 TFEU are not met if the recipient undertaking could, in circumstances which correspond to normal market conditions, have obtained the same advantage as that which has been made available to it through State resources. That assessment is made, in principle, by the application of the market economy operator test. Thus, in order to ascertain whether a State measure constitutes aid, it is necessary to determine whether, in similar circumstances, a market economy operator of a size comparable to that of the bodies managing the public sector might have been prompted to conclude the agreements at issue. However, determining whether a market economy operator would have made an arrangement such as that in question cannot necessarily imply for the Commission the obligation to use the comparative analysis method. That method is merely one analytical tool amongst others to determine if the recipient undertaking has received an economic advantage which it would not have obtained in normal market conditions. The selection of the appropriate tool is a matter for the Commission within the framework of its obligation to conduct a complete analysis of all factors that are relevant to the transaction at issue and its context, including the situation of the recipient undertaking and of the relevant market. In follows that, by adopting a decision declaring the State aid granted for airport and marketing services agreements as aide incompatible with the internal market, the Commission could, without committing an error, analyse in detail what was the most appropriate assessment method to choose for the purposes of the application of the market economy operator test and, for those purposes, opt for the incremental profitability analysis method and depart from the comparative analysis. (see paras 139-143)

See the text of the decision. (see paras 159, 283, 305)

See the text of the decision. (see paras 164-177, 255-299, 306-326, 341-393)

See the text of the decision. (see paras 185-193)

See the text of the decision. (see paras 205-218, 221-225)