Appeal brought on 9 December 2021 by Ryanair DAC, Airport Marketing Services Ltd, FR Financing (Malta) Ltd against the judgment of the General Court (Fifth Chamber) delivered on 29 September 2021 in Case T-448/18, Ryanair and Others v Commission

(Case C-758/21 P)

(2022/C 51/32)

Language of the case: English

Parties

Appellants: Ryanair DAC, Airport Marketing Services Ltd, FR Financing (Malta) Ltd (represented by: E. Vahida, avocat, B. Byrne, advocaat, and S. Rating, abogado)

Other party to the proceedings: European Commission

Form of order sought

The appellants claim that the Court should:

— set aside the judgment under appeal;

— annul Articles 5 and 6 and Articles 9, 10 and 11, insofar as they concern the appellants, of Commission Decision (EU) 2018/628 (the contested decision) (1), 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-448/18 before the General Court.

Pleas in law and main arguments

The appellants advance four grounds of appeal.

First, the General Court erred in law by rejecting as inadmissible, and therefore refusing to take into account for its judicial review, key pieces of evidence that were submitted by the appellants prior to the closure of the oral part of the procedure before the General Court. The General Court: erred in disregarding, or failing to duly consider, the legal principles underpinning the rules in Articles 85, (1) to (3), of the General Court’s Rules of Procedure; and erred in disregarding the case law applying those provisions.

Second, the General Court misinterpreted Article 17 of Council Regulation (EU) 2015/1589 (2) and misapplied Article 296 TFEU by finding respectively that: (i) the Commission had not violated the applicable limitation period for aid recovery; and (ii) the Contested Decision contained sufficient reasoning in that regard.

Third, the General Court distorted the clear sense of the evidence produced before it when assessing if the Commission lawfully applied the so-called ‘market economy operator’ test when determining if the appellants received an advantage within the meaning of Article 107(1) TFEU. The General Court distorted evidence related to: (i) a security fee stipulated in an airport services agreement between the airport and Ryanair; (ii) the estimation of incremental operating costs that the airport could have expected; and (iii) the load factor relied on by the Commission when carrying out its ex ante profitability assessment.

Fourth, the General Court erred in law by concluding that errors concerning the amount of the aid to be recovered calculated based on ex ante data should not be corrected based on ex post data in the file when the contested decision was adopted.

(1) Commission Decision (EU) 2018/628 of 11 November 2016 on State aid SA.24221(2011/C) (ex 2011/NN) implemented by Austria for the Klagenfurt airport, Ryanair and other airlines using the airport (notified under document C(2016) 7131) (OJ 2018 L 107, p. 1).

(2) Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ 2015 L 248, p. 9).