Keywords

Summary



Keywords

1. State aid – Meaning – Assessment based on the private investor test

(Art. 87(1) EC)

2. State aid – Meaning – Assessment based on the private investor test – Public authority managing airport facilities in public ownership

(Art. 87(1) EC)

Summary

1. When applying the private investor test, it is necessary to envisage the commercial transaction as a whole in order to determine whether the public entity and the entity which is controlled by it, taken together, have acted as rational operators in a market economy. The Commission must, when assessing the measures at issue, examine all the relevant features of the measures and their context, including those relating to the situation of the authority or authorities responsible for granting those measures.

(see para. 59)

2. For the purposes of determining whether a measure of State aid constitutes an advantage within the meaning of Article 87(1) EC, a distinction must be drawn between the obligations which the State must assume as an undertaking exercising an economic activity and its obligations as a public authority. While it is clearly necessary, when the State acts as an undertaking operating as a private investor, to analyse its conduct by reference to the principle of the private investor in a market economy, application of that principle must be excluded in the event that the State acts as a public authority. In the latter event, the conduct of the State can never be compared to that of an operator or private investor in a market economy.

Any activity consisting in offering goods and services on a given market is an economic activity. The fixing of the amount of landing charges and the accompanying indemnity is an activity directly connected with the management of airport infrastructure, which is an economic activity. Airport charges fixed by a public authority must be regarded as remuneration for the provision of services within the airport, notwithstanding the fact that a clear and direct link between the level of charges and the service rendered to users is weak.

Accordingly, the provision of airport facilities by a public authority to airlines, and the management of those facilities, in return for payment of a fee the amount of which is freely fixed by that authority, can be described as economic activities; although such activities are carried out in the public sector, they cannot, for that reason alone, be categorised as the exercise of public authority powers. Those activities are not, by reason of their nature, their purpose or the rules to which they are subject, connected with the exercise of powers which are typically those of a public authority.

The fact that the owner of airport facilities in public ownership is a public authority does not therefore in itself mean that it cannot, in the present case, be regarded as an entity exercising an economic activity.

Similarly, the mere fact that the public authority has regulatory powers in relation to fixing airport charges does not mean that a scheme reducing those charges ought not to be examined by reference to the principle of the private investor in a market economy, since such a scheme could have been put in place by a private operator.

(see paras 84-85, 87-89, 91-92, 101)