Appeal brought on 13 June 2019 by Deutsche Lufthansa AG against the judgment of the General Court (Fourth Chamber, Extended Composition) delivered on 12 April 2019 in Case T-492/15 Deutsche Lufthansa AG v European Commission

(Case C-453/19 P)

(2019/C 263/39)

Language of the case: German

Parties

Appellant: Deutsche Lufthansa AG (represented by: A. Martin-Ehlers, Rechtsanwalt)

Other parties to the proceedings: European Commission, Land Rheinland-Pfalz, Ryanair DAC

Form of order sought

The appellant claims that the Court should:

— declare that the action was admissible and well founded in so far as the appellant challenged Measure 12 (payment into the capital reserve of FFHG (1)) on the basis that that measure granted operating aid to FFHG;

— further, set aside the judgment of the General Court of 12 April 2019 in Case T-492/15;

— grant the form of order sought at first instance and annul Commission Decision SA.21121 of 1 October 2014 (2) (with the exception of Measure 12 in so far as it is used to pay operating aid for FFHG) that forms the subject of that action;

— in the alternative, refer the case back to the General Court of the European Union for judgment;

— order the Commission to pay the costs of the proceedings.

Grounds of appeal and main arguments

In its appeal the appellant relies, in essence, on the following grounds of appeal:

Individual aid awards for which an investigation procedure was launched

— In accordance with the judgment in COFAZ alone, (3) the appellant is individually concerned and therefore has capacity to sue. The basis of this lies in the fact that the Commission failed to take into consideration essential factual information and additional advantages, despite these measures being brought to its attention by the appellant. The Commission thus infringed the appellant’s procedural rights.

— In the alternative, if the case-law in Mory (4) is to be applied, then the first alternative would have to be applied. Due to the infringement of the appellant’s procedural rights, the Commission cannot be considered to have carried out a proper investigation procedure. In this case the appellant was also individually concerned and therefore has capacity to sue.

— In the further alternative, the action is also to be held admissible if the second alternative in the case-law in Mory is found to be applicable, according to which the appellant must prove that its position on the market has been substantially affected by the aid. In this case the appellant’s burden of proof is reversed or at least lowered since the Commission has arbitrarily ignored facts known to it that were relevant for its decision. It is to be stated purely in the alternative that the appellant did in fact demonstrate that it had been substantially affected. The General Court’s alternative legal assessment departs from the case-law of the Court of Justice and is based upon a misunderstanding of the relevant market that constitutes an error in law. In this respect the General Court distorts and summarises the facts put forward by the appellant and the Commission, changes the content of the decision at issue and infringes the rules on the burden of proof.

Aid schemes

— The appellant argues that the case should also have been found to be admissible with regard to aid schemes on the basis of the judgment delivered in the Montessori case. (5)

Individual aid award without investigation procedure

— Where an individual aid award was made without an investigation procedure, the action should, in any case, have been found to be admissible in accordance with the first alternative in the case-law in Mory since the Commission failed to launch an in-depth investigation procedure.

(1) Flughafen Frankfurt-Hahn GmbH.

(2) Decision (EU) 2016/789 on the State aid SA.21121 (C29/08) (ex NN 54/07) implemented by Germany concerning the financing of Frankfurt Hahn airport and the financial relations between the airport and Ryanair (OJ 2016 L 134, p. 46).

(3) Judgment of the Court of Justice of 12 July 1990, Société CdF Chimie azote et fertilisants SA and Société chimique de la Grande Paroisse (SCGP) SA v Commission (C-169/84, EU:C:1990:301).

(4) Judgment of the Court of Justice of 17 September 2015, Mory and Others v Commission (C-33/14 P, EU:C:2015:609).

(5) Judgment of the Court of Justice of 6 November 2018, Scuola Elementare Maria Montessori and Others (C-622/16 P to C-624/16 P, EU:C:2018:873).