Appeal brought on 1 March 2019 by Ryanair DAC, formerly Ryanair Ltd,Airport Marketing Services Ltd against the judgment of the General Court (Sixth Chamber, Extended Composition) delivered on 13 December 2018 in Case T-53/16: Ryanair and Airport Marketing Services v Commission

(Case C-204/19 P)

(2019/C 164/37)

Language of the case: English

Parties

Appellants: Ryanair DAC, formerly Ryanair Ltd, Airport Marketing Services Ltd (represented by: E. Vahida, avocat, I.-G. Metaxas-Maranghidis, Δικηγόρος, G. Berrisch, Rechtsanwalt, B. Byrne, Solicitor)

Other parties to the proceedings: European Commission, Council of the European Union

Form of order sought

The appellants claim that the Court should:

— set aside the judgment of the General Court of 13 December 2018 in Case T-53/16; and

— annul Articles 1, 4, 5 and 6 of Commission Decision (EU) 2016/633 (1) of 23 July 2014 on State aid SA.33961 (2012/C) (ex 2012/NN), 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-53/16 before the General Court.

Pleas in law and main arguments

The appellants submit that the judgment under appeal should be set aside on the following grounds.

First, the General Court misapplied Article 41 of the EU Charter of Fundamental Rights and the rights of defence of the appellants in the proceedings before the Commission. The General Court: erred in drawing a distinction between the specific rights in Article 41(2) of the Charter and the general right to good administration provided in Article 41(1) of the Charter; erred in finding that the rights in Article 41(2) of the Charter do not apply in State aid investigations; erred in finding that there is a conflict between Article 41(1) and (2) of the Charter and Articles 107 and 108 TFEU; and erred in finding that the appellants could merely be considered as a source of information in the investigation.

Second, the General Court violated Article 107(1) TFEU by misinterpreting the notion of

advantage. The General Court: erred in concluding that there is no hierarchy of methodologies for applying the market economy operator (‘MEO’) test between the comparative analysis and other methods; erred in finding that the Commission was entitled to depart from the comparative analysis and reject the comparative evidence submitted by the Appellants; erred in concluding that, when applying the incremental profitability test, it is not necessary for the Commission to satisfy itself that the expected incremental costs and expected incremental nonaeronautical revenues reflect how an MEO would have operated the airport; and erred by finding that decreased profitability, rather than lack of profitability, is sufficient for a finding of aid.

Third, the General Court erred in its assessment of imputability to the State by: considering that the operator of the airport — ‘SMAN’ — was an ‘organ of the State’; not applying the Stardust Marine indicators; and failing to provide a sufficient statement of reasons for doing so. The General Court also erred by wrongly affirming that the decisions of the private company VTAN were imputable to the State.

(1) Commission Decision (EU) 2016/633 of 23 July 2014 on State aid SA.33961 (2012/C) (ex 2012/NN) implemented by France in favour of Nîmes-Uzès-Le Vigan Chamber of Commerce and Industry, Veolia Transport Aéroport de Nîmes, Ryanair Limited and Airport Marketing Services Limited (notified under document C(2014) 5078) (JO 2016, L 113, p. 32).