Case T‑53/16

(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 Nîmes-Uzès-Le Vigan 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 — Assessment according to the private-investor test — Assessment of all factors relevant to the transaction at issue and its context — Taking into account the information available at the time the decision was taken relating to the measure at issue — 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 private-investor test — Assessment of all factors relevant to the transaction at issue and its context — A complex whole formed by airport services and marketing agreements — Taking into account the foreseeable negative performance — Whether permissible — Analysis of the profitability of the complex whole

State aid — Concept — Assessment according to the private-investor test — Assessment of all factors relevant to the transaction at issue and its context — No hierarchy between the comparative analysis method and other methods of assessment

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

State aid — Concept — Aid granted by regional or local bodies — Included — Chamber of Commerce and Industry — Classification of that entity as both a public authority and beneficiary of aid — No error of law

State aid — Administrative procedure — Obligations of the Commission — Possibility for the beneficiary of aid to rely on rights as extensive as defence rights as such — None — Right of the beneficiary of aid to be sufficiently associated with the proceedings — Scope

The European Commission does not disregard the principle of sound administration in Article 41(1) and (2) of the Charter of Fundamental Rights of the European Union or the rights of defence of the undertakings benefiting from aid, when it adopts a decision declaring that aid incompatible with the internal market and ordering its recovery without having granted those beneficiaries access to the file and without having given them notice beforehand of the facts and considerations on which it intended to base that decision. In the procedure for reviewing State aid, the beneficiaries of the aid cannot rely on actual rights of defence. In that regard, the Charter is not intended to alter the nature of the review of State aid established by the FEU Treaty or to confer on third parties a right of scrutiny which Article 108 TFEU does not provide. 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 provided for in Article 108 TFEU would be called into question. Similarly, the obligation for the Commission to send the beneficiaries of the aid 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 those beneficiaries essentially play only the role of a source of information in the procedure. The parties concerned, within the meaning of Article 108(2) TFEU have, nonetheless, the right to be involved in the administrative procedure to the extent appropriate in the light of the circumstances of the case. Consequently, a decision to initiate the formal investigation procedure must give the parties concerned the opportunity effectively to participate in the formal investigation 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 52-55, 57, 68, 71)

See the text of the decision. (see paras 83-101, 103-109)

See the text of the decision. (see paras 125-140)

See the text of the decision. (see paras 143-151)

See the text of the decision. (see paras 156-159)

The requirement as to selectivity under Article 107(1) TFEU must be clearly distinguished from the concomitant detection of an economic advantage in that, where the European Commission has identified an advantage, understood in a broad sense, as arising directly or indirectly from a particular measure, it is also required to establish that that advantage specifically benefits one or more undertakings. It falls to the Commission to show, in particular, that the measure at issue creates differences between undertakings which, with regard to the measure’s objective, are in a comparable situation. It is necessary, therefore, that the advantage be granted selectively and that it be liable to place certain undertakings in a more favourable situation than that of others. The selectivity requirement differs, however, depending on whether the measure in question is envisaged as a general scheme of aid or as individual aid. In the latter case, the identification of the economic advantage is, in principle, sufficient to support the presumption that it is selective. By contrast, when examining a general scheme of aid, it is necessary to identify whether the measure in question, notwithstanding the finding that it confers an advantage of general application, does so to the exclusive benefit of certain undertakings or certain sectors of activity. It follows that airport services and marketing agreements concluded between (i) a public authority operating an airport and (ii) an airline and its subsidiary are selective in character provided that they contain conditions specifically agreed between those parties and result in an advantage for the airline and its subsidiary. In that regard, it is not necessary to establish whether the agreements in question provide advantages to the airline in question and to its subsidiary in relation to other operators which are in a comparable legal and factual situation. The test requiring a comparison of the beneficiary with other operators in a comparable factual and legal situation in the light of the aim pursued by the measure in question is based on, and justified by, the assessment of whether measures of potentially general application are selective. That test is irrelevant where it would amount to assessing the selective nature of an ad hoc measure which concerns just one undertaking and is intended to modify certain competitive constraints which are specific to the undertaking. (see paras 162-169)

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. Consequently, 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 enter into the arrangements at issue. However, determining whether a market economy operator would have made such an arrangement cannot necessarily imply for the European 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. It follows that, in a decision characterising State aid granted under airport services and marketing agreements as incompatible with the internal market, the Commission may, without committing an error, analyse in detail what the most appropriate assessment method to use is for the purposes of applying the market economy operator test and opt, for those purposes, for the incremental profitability analysis method instead of the comparative analysis method. (see paras 180-184)

See the text of the decision. (see paras 203, 333)

See the text of the decision. (see paras 207-220, 293-327, 335-363, 377-420)

See the text of the decision. (see paras 228-235)