JUDGMENT OF THE COURT (Second Chamber)

13 June 2013 ( )

(Appeal – State aid – Loan granted by the Italian Republic to the airline company Alitalia – Decision declaring the aid unlawful and incompatible – Sale of assets of Alitalia – Decision finding no aid at the conclusion of the preliminary examination phase – Action for annulment – Locus standi – Interested party – Admissibility – Serious difficulties – Competence – Duty to state reasons)

In Case C‑287/12 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 7 June 2012,

Ryanair Ltd, established in Dublin (Ireland), represented by E. Vahida, avocat, and I.-G. Metaxas-Maragkidis, dikigoros,

appellant,

the other parties to the proceedings being:

European Commission, represented by L. Flynn and D. Grespan, acting as Agents, with an address for service in Luxembourg,

defendant at first instance,

Italian Republic, represented by G. Palmieri, acting as Agent, assisted by P. Gentili, avvocato dello Stato, with an address for service in Luxembourg,

Alitalia - Compagnia Aerea Italiana SpA, established in Fiumicino (Italy), represented by G. Bellitti, avvocato,

interveners at first instance,

THE COURT (Second Chamber),

composed of R. Silva de Lapuerta, President of the Chamber, G. Arestis, J.‑C. Bonichot, A. Arabadjiev (Rapporteur) and J. L. da Cruz Vilaça, Judges,

Advocate General: J. Kokott,

Registrar: A. Calot Escobar,

having regard to the written procedure,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 By its appeal, Ryanair Ltd (‘Ryanair’) seeks to have set aside the judgment of the General Court of the European Union of 28 March 2012 in Case T‑123/09 Ryanair v Commission [2012] ECR I‑0000 (‘the judgment under appeal’), whereby that court dismissed its action seeking the partial annulment of Commission Decision 2009/155/EC of 12 November 2008 on the loan of EUR 300 million granted by Italy to Alitalia No C 26/08 (ex NN 31/08) (OJ 2009 L 52, p. 3) (‘the first contested decision’) and the annulment of Decision C(2008) 6745 final, of 12 November 2008, concerning State aid N 510/2008 – Italy – Sale of assets of the airline Alitalia (‘the second contested decision’).

Legal context

2 It is apparent from the second recital in the preamble to Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88] of the EC Treaty (OJ 1999 L 83, p. 1) that that regulation seeks to codify and reinforce the consistent practice developed and established by the European Commission for the application of Article 88 EC, in accordance with the case-law of the Court.

3 Article 1 of that regulation provides:

‘For the purpose of this Regulation:

…

(h) “interested party” shall mean any Member State and any person, undertaking or association of undertakings whose interests might be affected by the granting of aid, in particular the beneficiary of the aid, competing undertakings and trade associations.’

4 Article 4(2) to (4) of that regulation, that article headed ‘Preliminary examination of the notification and decisions of the Commission’, provides:

‘(2) Where the Commission, after a preliminary examination, finds that the notified measure does not constitute aid, it shall record that finding by way of a decision.

(3) Where the Commission, after a preliminary examination, finds that no doubts are raised as to the compatibility with the common market of a notified measure, in so far as it falls within the scope of Article [87](1) [EC], it shall decide that the measure is compatible with the common market (hereinafter referred to as a “decision not to raise objections”). The decision shall specify which exception under the Treaty has been applied.

(4) Where the Commission, after a preliminary examination, finds that doubts are raised as to the compatibility with the common market of a notified measure, it shall decide to initiate proceedings pursuant to Article [88](2) [EC] (hereinafter referred to as a “decision to initiate the formal investigation procedure”).’

5 Article 7(4) of Regulation No 659/1999 provides:

‘The Commission may attach to a positive decision conditions subject to which an aid may be considered compatible with the common market and may lay down obligations to enable compliance with the decision to be monitored (hereinafter referred to as a “conditional decision”).’

6 Article 10 of that regulation is headed ‘Examination, request for information and information injunction’. Article 10(1) thereof provides: ‘Where the Commission has in its possession information from whatever source regarding alleged unlawful aid, it shall examine that information without delay.’

Background to the dispute and the contested decisions

7 The facts which gave rise to the dispute in this case, as set out in paragraphs 1 to 37 of the judgment under appeal, can be summarised as follows.

8 On 29 December 2006 the Italian Ministry of Economic Affairs and Finance published a call for declarations of interest in the sale of its stake in Alitalia SpA (‘Alitalia’). That procedure was closed without reaching a conclusion on 18 July 2007, since the bids submitted were withdrawn. In September 2007 Alitalia asked a bank to identify potential partners for itself. The bid submitted by Air France‑KLM was withdrawn on 21 April 2008, in the absence of agreement with the trade unions.

9 On 23 April 2008 the Italian authorities informed the Commission of the approval, through Decree-Law No 80, Urgent measures to ensure the public service of air transport (decreto-legge No 80 – Misure urgenti per assicurare il pubblico servizio di trasporto aereo), of 23 April 2008 (GURI No 97 of 24 April 2008, p. 5), of the granting of a loan of EUR 300 million to Alitalia. Having received no notification prior to the granting of such a loan, the Commission requested the Italian authorities, by letter of 24 April 2008, inter alia, to confirm the existence of that loan, provide any relevant information allowing such a measure to be assessed in relation to Articles 87 EC and 88 EC and to suspend the granting of the loan. On 29 April 2008 Ryanair lodged a complaint with the Commission concerning the existence of State aid for Alitalia in the form of that loan.

10 By letter of 30 May 2008 the Italian authorities informed the Commission of the adoption, on 27 May 2008, of Decree-Law No 93, Urgent provisions to safeguard the purchasing power of households (Decreto-legge No 93 ‑ Disposizioni urgenti per salvaguardare il potere di acquisto delle famiglie) (GURI No 124 of 28 May 2008, p. 3), which gave Alitalia the option of counting the value of the loan at issue as part of its own capital. On the same date, Ryanair sent a new complaint to the Commission concerning the conversion of that loan into own capital.

11 On 3 June 2008 the Italian authorities took further steps with a view to finding one or more buyers for Alitalia.

12 By letter of 12 June 2008 the Commission notified the Italian authorities of its decision of 11 June 2008 to initiate a formal investigation procedure in connection with the measures relating to the loan at issue and to Alitalia’s option of counting the value of that loan as part of its own capital.

13 By the adoption of Decree-Law No 134, Urgent measures for the restructuring of large undertakings in crisis (Decreto-legge No 134 ‑ Disposizioni urgenti in materia di ristrutturazione di grandi imprese in crisi) of 28 August 2008 (GURI No 201 of 28 August 2008, p. 3) (‘Decree-Law No 134’), certain amendments were made to the extraordinary administration procedure for particularly large undertakings active in the essential public services sector. Provision was in particular made to allow the option of rehabilitation of undertakings in the essential public services sector by means of a disposal of their assets by private treaty procedure to purchasers able to guarantee continuity of service in the medium term, rapid intervention and compliance with the requirements of Italian legislation and treaties ratified by the Italian Republic. However, that option was coupled with the requirement that an independent expert appointed by the Italian Minister of Economic Development verify that the assets were sold at a price corresponding to the market price.

14 After Alitalia was placed in extraordinary administration, Compagnia Aerea Italiana SpA (‘CAI’), a consortium of investors, submitted, on 1 September 2008, a preliminary, non-binding bid for the acquisition of certain assets of companies in the group of which Alitalia formed part (‘the Alitalia group’), subject to the agreement of the trade unions to the recruitment of former staff members of that group under new working conditions.

15 In accordance with Decree-Law No 134, a bank was appointed as independent expert, responsible for verifying that the assets were sold at a price corresponding to the market price. A monitoring committee was set up, with the task, in particular, of agreeing to the sales of assets proposed by the extraordinary administrator.

16 On 14 September 2008, following the failure of negotiations with the trade unions, CAI withdrew its preliminary bid. The following day, the extraordinary administration procedure was extended to the whole of the Alitalia group. On 22 September 2008, the extraordinary administrator issued a call for declarations of interest in the purchase of all the assets of the Alitalia group (‘the call for declarations of interest’). On 25 September 2008, CAI renewed its bid on the same conditions.

17 On 2 October 2008 Ryanair lodged a third complaint with the Commission concerning the adoption of Decree-Law No 134 and other measures relating to the sale of assets of the Alitalia group.

18 By letter of 14 October 2008, the Italian authorities notified the Commission of the procedure for the sale of Alitalia’s assets, asking it to confirm, for reasons of legal certainty, first, that the extraordinary administration procedure did not involve the grant of State aid to the purchasers of the assets transferred and, secondly, that the potential purchase by third parties of certain assets of the Alitalia group, on the basis of a bid already formulated, did not involve any elements of economic continuity with the undertaking placed under extraordinary administration which might entail the transfer of Alitalia’s liabilities to the purchaser and, in particular, the requirement to recover unlawful and incompatible State aid granted to Alitalia.

19 By letter of 30 October 2008 Ryanair lodged an additional complaint with the Commission, denouncing (i) the increase of the municipal boarding fee per passenger at Italian airports to EUR 3, with the aim, in its submission, on the part of the Italian authorities, of financing severance payments to former Alitalia employees, and (ii) an alleged conflict of interest revealed by the press between certain CAI shareholders and certain shareholders of the independent expert, who were said to be identical.

20 On 31 October 2008 CAI submitted to the extraordinary administrator a binding offer for the purchase of certain assets relating to Alitalia’s air passenger transport business. That offer was sent to the Commission by the Italian authorities on 3 November 2008.

21 By the first contested decision, the Commission declared that the loan granted to Alitalia by the Italian Republic constituted State aid which was unlawful and incompatible with the common market and ordered its recovery from the beneficiary.

22 By the second contested decision, adopted at the conclusion of a preliminary examination phase, pursuant to Article 88(3) EC, the Commission declared that the notified measure, as amended by the commitments given by the Italian authorities and defined in that decision, did not involve the granting of State aid to the buyers, subject to full compliance with those commitments by the Italian Republic, whereby it could be guaranteed that the Alitalia group assets would be sold at the market price. Those commitments consist in the relevant minister not intervening in the action of the extraordinary administrator, the assessment of offers based on price, assessment of offers so as to ensure that the price not be lower than the market price, and the appointment of a monitoring trustee.

The procedure before the General Court and the judgment under appeal

23 By application lodged at the Registry of the General Court on 28 March 2009, Ryanair brought an action for the partial annulment of the first contested decision and the annulment of the second contested decision.

24 By way of measures of organisation of procedure, as provided for in Article 64 of its Rules of Procedure, the General Court put, in writing, questions to the parties, to which the latter replied within the prescribed period.

25 By orders of 16 September and 19 October 2009, the Italian Republic and Alitalia‑Compagnia Aerea Italiana SpA (‘Alitalia-CAI’) were granted leave to intervene. The parties submitted oral argument at the hearing of 30 June 2011.

26 Ryanair, first, put forward seven pleas in law in support of its action seeking the annulment of the second contested decision.

27 The first plea alleged failure to open the formal investigation procedure under Article 88(2) EC, despite serious difficulties allegedly encountered by the Commission. By its second plea, Ryanair alleged the Commission’s lack of competence to adopt the second contested decision. The third plea was a claim of manifest error of assessment in that the Commission allegedly failed to examine all the relevant characteristics of the contested measures in their context, and an infringement of the duty to state reasons by the Commission. The fourth plea alleged an error of law, the Commission having allegedly ignored options other than the sale of Alitalia group assets, and an infringement of the duty to state reasons by the Commission, having regard to the lack of justification for that omission. The fifth plea alleged failure to apply to the sale of Alitalia group assets the criterion of a private investor operating in normal market economy conditions (‘market economy investor principle’). By its sixth plea, Ryanair alleged an error in identifying the party obliged to reimburse the aid. Finally, the seventh plea alleged infringement of the duty to state reasons as regards, in particular, the shortcomings in the Commission’s examination referred to in the applicant’s third and fourth pleas.

28 Secondly, Ryanair put forward a plea seeking the partial annulment of the first contested decision, alleging infringement of the principle of sound administration and of Article 14(3) of Regulation No 659/1999.

29 By the judgment under appeal, the General Court, while holding the application for annulment of the second contested decision to be admissible, dismissed it on its merits. It then dismissed the application for annulment of the first contested decision as being inadmissible.

The application for annulment of the second contested decision

30 Concerning the admissibility of the application for annulment of the second contested decision, the General Court, referring to the judgment in Case C‑83/09 P Commission v Kronoply and Kronotex [2011] ECR I‑4441, held, in paragraphs 63 to 73 of the judgment under appeal, that any interested party, within the meaning of Article 1(h) of Regulation No 659/1999, must be considered to be directly and individually concerned by a decision not to raise objections, adopted under Article 4(3) of that regulation. The General Court noted in that regard that Ryanair and Alitalia are competitors on the Italian and international passenger air transport markets and, therefore, that the action was admissible, there being no need to examine Ryanair’s arguments that its competitive position was substantially harmed by the measure notified. Concerning the subject‑matter of the review, the General Court noted, in paragraphs 80 and 81 of the judgment under appeal, that it was appropriate to examine all Ryanair’s pleas in support of the annulment of the second contested decision, in order to ascertain, in particular, whether they allowed the identification of any serious difficulty which should have led the Commission to open the formal investigation procedure under Article 88(2) EC.

31 As regards the substance, the General Court first of all rejected the second plea put forward by Ryanair alleging the Commission’s lack of competence to adopt a conditional decision after a preliminary examination. The General Court held, in paragraphs 94 to 97 of the judgment under appeal, that Article 7(4) of Regulation No 659/1999 did not apply in the present case, since the Commission concluded that the measure notified did not constitute State aid and that, therefore, the second contested decision could not be classified as a conditional decision, within the meaning of that provision, or as a decision which requires modifications to the project notified, but as a decision taking account of commitments voluntarily entered into by the Member State concerned during the phase of notification of the contested measure in order to clarify certain points. The General Court concluded that those commitments form an integral part of the measure notified.

32 The General Court next examined the pleas alleging infringement of the obligation to open the formal investigation procedure in order to determine whether, in the present case, the examination carried out by the Commission was of such a kind as to eliminate the possibility of serious difficulties.

33 Thus, the General Court, first, rejected the arguments put forward in support of the third plea, concerning the Commission’s failure to examine all the relevant characteristics of the measures in their context. The General Court held that the Commission could not be accused of carrying out an insufficient or incomplete examination during the preliminary examination phase as to the rules derogating from the ordinary law on bankruptcy or as regards the reductions in burdens and other advantages allegedly granted by Italian legislation to CAI, since those measures were not relevant.

34 Second, the General Court rejected the arguments set out in support of the fourth plea, alleging failure to examine alternatives to the sale of Alitalia group assets. The General Court held, first, that the Commission applied the market economy investor principle by concluding that those assets were sold at the market price and, secondly, that the Commission established that the objective of that sale was the maximisation of the value of those assets, in the interest of Alitalia’s creditors and, therefore, that the conduct of the public authorities was guided by prospects of profitability in the long term. The General Court also held that, since the Commission was satisfied that those assets would be sold at the market price, it was under no obligation to examine alternatives to the procedure chosen.

35 Third, the General Court rejected the fifth plea, alleging failure to apply to the sale of Alitalia group assets the private investor test.

36 The General Court held that the sale of Alitalia group assets did not raise any question concerning the concept of public service obligation and that the continuity of service criterion was secondary in relation to that of price. It held that some of the 60 bids in response to the call for declarations of interest, and particularly that of CAI, were submitted even before publication of that call, demonstrating therefore that the presence therein of the continuity of service condition was not decisive for those bids. The General Court stated that the Commission had taken into account the continuity of service criterion as part of a concern to maximise the value of the assets sold, in order to obtain a higher sale price in the interest of Alitalia creditors and not in the interests of continuing the activity of a public service.

37 The General Court further held that the Commission had verified that the call for declarations of interest did not contain any clause that was discriminatory on grounds of nationality and that the Commission had verified that the offer had been the subject of an independent assessment, in order to ensure that the price proposed was not below the market price. The General Court furthermore found that CAI took over only part of Alitalia’s staff, who were engaged on the basis of entirely new working conditions and contracts.

38 Fourth, the General Court rejected the arguments set out in support of the sixth plea, alleging an error in identifying the party obliged to repay the aid. The General Court held that the Commission concluded that the sale of assets procedure did not involve economic continuity between Alitalia and CAI, where the shareholders of those companies were not the same, since CAI would take over only certain assets relating to Alitalia’s passenger transport business, since it pursued its own business strategy and since no automatic transfer of employment contracts took place between those two companies.

39 Fifth, the General Court rejected the arguments set out in support of the first plea, alleging failure to open a formal investigation procedure. The General Court found that the duration of the preliminary examination phase was reasonable and that the commitments incorporated in the second contested decision are evidence that the Commission took the precautions necessary both to monitor compliance with those commitments and to react to any non-compliance therewith since, otherwise, it reserved the right to initiate the formal investigation procedure.

40 Finally, the General Court, in paragraphs 176 to 182 of the judgment under appeal, examined and rejected the pleas alleging infringement of the duty to state reasons in the second contested decision as regards the presence of certain shareholders of the expert in the share capital of CAI.

41 The General Court concluded that the application for annulment of the second contested decision should be dismissed in its entirety.

The application for annulment of the first contested decision

42 The General Court held, in paragraph 197 of the judgment under appeal, that Ryanair had not demonstrated that the fact of ordering immediate recovery of the aid from Alitalia and not from CAI had the effect of substantially affecting its competitive position, or that the time granted by the Commission to the Italian Republic, which had allegedly allowed the obligation to recover the aid from the beneficiary to be circumvented, affected its interests. The General Court considered that Ryanair had also failed to demonstrate that the fact that suspension of the aid was not ordered affected it. The General Court concluded that Ryanair had not demonstrated that it was individually concerned by the first contested decision.

43 The action was therefore dismissed in its entirety.

Forms of order sought

44 By its appeal, Ryanair claims that the Court should:

– set aside the judgment under appeal;

– give final judgment in accordance with Article 61 of the Statute of the Court of Justice of the European Union or, if it is considered that the state of the proceedings does not permit the Court to give final judgment, to refer the case back to the General Court for judgment, and

– order the Commission to pay the costs.

45 The Commission contends that the Court should dismiss the appeal and order Ryanair to pay the costs.

46 Alitalia-CAI claims that the appeal should be dismissed as being entirely or partially inadmissible and, in any event, as being unfounded and that Ryanair should be ordered to pay the costs.

47 The Italian Republic claims that the appeal should be dismissed as being inadmissible and, in the alternative, as being unfounded, and that Ryanair should be ordered to pay the costs.

The appeal

48 In support of its appeal, Ryanair puts forward, first, six grounds of appeal concerning its application for annulment of the second contested decision. The first ground of appeal alleges that the General Court erred in law in the examination of the admissibility of the action. By its second ground of appeal, Ryanair claims that the General Court erred in its statement of reasons and erred in law by failing to declare that the Commission lacked competence to adopt a conditional decision. The third ground of appeal alleges that the General Court erred in law in that it failed to examine all the relevant characteristics of the notified measure. The fourth ground of appeal alleges that the General Court erred in its statement of reasons and erred in law by failing to examine alternatives to the notified measure. The fifth ground of appeal relates to an error of law in applying the market economy investor principle. The sixth ground of appeal alleges a distortion of the evidence and an error committed by the General Court by not holding CAI to be the economic successor of Alitalia.

49 Secondly, as regards the application for annulment of the first contested decision, Ryanair puts forward a seventh ground of appeal, alleging a failure to state adequate reasons.

The first ground of appeal: an error of law in the examination of the admissibility of the application for annulment of the second contested decision

Arguments of the parties

50 By its first ground of appeal, Ryanair complains that the General Court erred in its assessment of the admissibility of its action in so far as directed against the second contested decision by failing to examine whether its competitive position was significantly affected by that decision. It claims, in effect, that the General Court therefore redefined the subject-matter of its action and reduced the scope of review of the lawfulness of that decision.

51 The Commission maintains that the first ground of appeal is ineffective. The General Court in no way restricted the scope of the action and its approach, consistent with Commission v Kronoply and Kronotex, was more favourable to Ryanair than if it had examined whether the second contested decision should be annulled on its merits. All Ryanair’s arguments concerning the merits of that decision could be examined without its having to demonstrate that it had legal standing to invoke them, because its application contained a ‘hook’ to the protection of its procedural rights as an interested party.

52 Alitalia-CAI claims that this ground of appeal should be declared to be inadmissible. The General Court, by rejecting the objections of inadmissibility raised by the Commission and Alitalia-CAI, ruled in favour of Ryanair and, therefore, the latter has no interest in bringing proceedings in that regard. Moreover, the standard of proof required in order to challenge a decision not to raise objections is lower than the standard which could have been required in the case of an appraisal of the merits under Article 87 EC.

53 The Italian Republic, relying on Commission v Kronoply and Kronotex, claims that the first ground of appeal is unfounded since the subject-matter of the action remains the protection of Ryanair’s procedural rights. In any event, since the arguments put forward by Ryanair in paragraphs 46 to 109 of its application at first instance were examined in detail in paragraphs 99 to 187 of the judgment under appeal, the refusal to examine whether the notified measure had significantly affected its market position had no real impact on the scope of the General Court’s findings. According to that Member State, Ryanair misinterprets paragraphs 129 and 130 of the judgment under appeal. Furthermore, paragraphs 131 to 137 of that judgment are additional evidence that the General Court carried out a genuine examination of the substance of the second contested decision. The Italian Republic adds that Ryanair has never demonstrated that its competitive position suffered immediate and direct consequences as a result of that decision.

Findings of the Court

54 Contrary to what is claimed by Ryanair, the General Court did not misconstrue its arguments aimed at challenging the substance of the second contested decision or artificially redefine the subject-matter of the action as an action aimed exclusively at the protection of its procedural rights.

55 In paragraph 64 of the judgment under appeal, the General Court, referring to paragraph 48 of Commission v Kronoply and Kronotex, pointed out that the specific status of interested party within the meaning of Article 1(h) of Regulation No 659/1999, in conjunction with the specific subject-matter of the action, is sufficient to distinguish individually, for the purposes of the fourth paragraph of Article 230 EC, the applicant contesting a decision not to raise objections. Therefore, the General Court restricted itself, for the purpose of examining the admissibility of the action, to examining, in paragraphs 70 to 73 of the judgment under appeal, whether Ryanair had proved to the requisite legal standard that it was an interested party.

56 Admittedly, apart from the plea seeking to safeguard its procedural rights under Article 88(2) EC, Ryanair also put forward pleas explicitly connected with the merits of the second contested decision.

57 However, it is apparent from paragraph 81 of the judgment under appeal that the General Court examined all Ryanair’s pleas for annulment of the second contested decision, in order to ascertain, in particular, whether they allowed the identification of any serious difficulty which should have led the Commission to open the formal investigation procedure under Article 88(2) EC. For that purpose, the General Court examined the substantive arguments made by Ryanair, in order to determine whether those arguments were such as to support the plea in law expressly made by Ryanair regarding the existence of serious difficulties justifying initiation of the procedure referred to in that provision.

58 The General Court moreover found, in paragraph 83 of the judgment under appeal, that, in support of its first plea, the applicant relied on ten errors which it claimed vitiated the Commission’s examination and that, in so far as those alleged errors or gaps related to the other pleas raised in the action at first instance, it was appropriate to examine them in the context of the assessment relating to those other pleas.

59 In that regard, it cannot validly be claimed that, by doing so, the General Court altered the subject-matter of the application for annulment of the second contested decision.

60 Where an applicant seeks the annulment of a decision not to raise objections, it essentially contests the fact that the Commission adopted the decision in relation to the aid at issue without initiating the formal investigation procedure, thereby infringing the applicant’s procedural rights. In order that its action for annulment may succeed, the applicant may invoke any plea capable of showing that the assessment of the information and evidence which the Commission had at its disposal, during the phase of preliminary examination of the notified measure, should have raised doubts as to the compatibility of that measure with the common market. The use of such arguments cannot, however, have the consequence of changing the subject-matter of the application or altering the conditions of its admissibility. On the contrary, the existence of doubts concerning that compatibility is precisely the evidence which must be adduced in order to show that the Commission was required to initiate the formal investigation procedure under Article 88(2) EC and Article 6(1) of Regulation No 659/1999 (Commission v Kronoply and Kronotex, paragraph 59).

61 In any event, it is clear that the arguments put forward by Ryanair in paragraphs 46 to 109 of its application at first instance were subject to a detailed examination in paragraphs 99 to 187 of the judgment under appeal.

62 Consequently, the first ground of appeal must be rejected as being unfounded.

The second ground of appeal: failure to declare that the Commission lacked competence to adopt a conditional decision on the basis of Article 4(2) of Regulation No 659/1999

Arguments of the parties

63 Ryanair claims that the General Court failed to examine its argument that obligations and monitoring mechanisms could not be added to a measure at the close of a preliminary examination. By holding that Article 7(4) of Regulation No 659/1999 was not applicable, the General Court moreover provided an inadequate statement of reasons. It erred in the legal characterisation of the evidence and infringed the applicable law since the commitments in question are conditions which add complexity to the monitoring of the notified measure and warrant an in-depth examination of the latter, as is provided for by that provision. To thereby legitimise a novel Commission practice is an infringement of Article 58 of the Statute of the Court. According to Ryanair, those commitments create a major shift of the selection criteria towards price. The call for declarations of interest emphasised other criteria, namely the capacity to guarantee continuity of the transportation service in the medium term, the speed of the transaction and compliance with the requirements of Italian law. In the alternative, Ryanair describes those commitments as modifications made by the Member State of the same type as those referred to in Article 7(2) and (3) of Regulation No 659/1999.

64 The Commission contends that a notifying Member State is entitled to offer it commitments explaining how the notified measure should be understood or applied. Ryanair’s position is extremely rigid, formalist and contrary to the principle of sound administration. It would mean moreover that the Commission would be obliged, in numerous cases, to initiate formal investigation procedures without any serious basis.

65 According to Alitalia-CAI, the second ground of appeal is unfounded. The dialogue between the national authorities and the Commission after the measure at issue was notified was usual and consistent with the rule of law, being an expression of the principle of sincere cooperation. That process ensures that the Commission receives all the assurances necessary in order to rule out the possibility that the notified measures, as eventually clarified and integrated, might raise doubts as to their nature and compatibility. That ground of appeal is moreover inadmissible since Ryanair is asking the Court to re-examine whether the facts presented by the national authorities during the preliminary investigation can be regarded as substantive changes to the notified measure and therefore as ‘conditions’ within the meaning of Article 7(4) of Regulation No 659/1999.

66 In addition to the foregoing, the Italian Republic states that the call for tenders stated that the sale price could not be lower than the market price established by an independent expert. Reference was then made, on a secondary basis, to the three criteria invoked by Ryanair. Furthermore, it contends that the argument that the commitments at issue were significant modifications is new.

Findings of the Court

67 First of all, it is clear that since the Commission found, by the second contested decision, that there was no aid, the General Court was correct to hold, in paragraph 95 of the judgment under appeal, that the second contested decision cannot be classified as a conditional decision, within the meaning of Article 7(4) of Regulation No 659/1999, but, on the contrary, can be classified as a ‘decision taking account of undertakings as to the behaviour voluntarily entered into by the State during the phase of notification of the contested measure in order to clarify certain points’ and that, therefore, those commitments form an integral part of the notified measure.

68 Furthermore, to determine whether an act of the Commission in matters of State aid constitutes a decision within the meaning of Article 4 of Regulation No 659/1999, it is necessary to ascertain whether, taking account of the substance of that act and the Commission’s intention, that institution has, at the end of the preliminary examination stage, definitively established its position, by way of the act under consideration, on the measure under review (see Case C‑521/06 P Athinaïki Techniki v Commission [2008] ECR I‑5829, paragraph 46).

69 In the present case, it should be noted that the second contested decision contains such an adoption of a definitive position. It was stated there, following an examination of the circumstances of this case, as the General Court noted in paragraph 94 of the judgment under appeal, that the Commission concluded that the notified measure, bearing in mind the commitments given by the Italian Republic, did not constitute State aid and did not therefore fall within the scope of Article 87(1) EC. The Commission thus clearly adopted a position in so far as, in its opinion, the notified measure, as clarified in its additional observations, did not constitute State aid. Consequently, it is necessary to classify the second contested decision as a decision adopted under Article 4(2) of Regulation No 659/1999, according to which ‘[w]here the Commission, after a preliminary examination, finds that the notified measure does not constitute aid, it shall record that finding by way of a decision’.

70 The General Court was therefore correct to state, in paragraphs 94 and 95 of the judgment under appeal, that Article 7(4) of Regulation No 659/1999 was not applicable in the present case and that it follows that the second contested decision cannot be classified as either a conditional decision, within the meaning of that provision, imposing conditions or obligations on the Member State, or as a decision which requires modifications to the project notified, as Ryanair claimed.

71 It should be noted, furthermore, that decisions adopted without initiating the formal investigation procedure are acts which are brought into being on conclusion of a brief review, which is conducted within a narrow time frame and, more often than not, in the context of a dialogue exclusive to the Commission and the Member State concerned. In accordance with the objective of Article 88(3) EC and its duty of sound administration, the Commission may, amongst other things, engage in dialogue with the notifying State or with third parties in an endeavour to overcome, during the preliminary procedure, any difficulties encountered. However, as the General Court noted in paragraph 78 of the judgment under appeal, that power presupposes that the Commission may adjust its position according to the results of the dialogue engaged in, without that adjustment having to be interpreted, a priori, as establishing the existence of serious difficulties.

72 Consequently, the General Court was fully entitled to hold, in paragraph 96 of the judgment under appeal, that the Commission had the power lawfully to adopt, on the basis of Article 4(2) of Regulation No 659/1999, a decision, such as the second contested decision, whereby, while finding the absence of State aid, it takes note of commitments entered into by the Member State.

73 Consequently, the second ground of appeal must be rejected as being unfounded.

The third ground of appeal: the General Court failed to examine all the relevant characteristics of the notified measure

Arguments of the parties

74 By its third ground of appeal, Ryanair claims, essentially, first, that the statement of reasons in paragraph 114 of the judgment under appeal is ‘logically flawed’ in so far as the General Court failed to take into account the fact that the Italian Republic gave certain assurances to the trade unions by means of social measures introduced by Decree-Law No 134. That action encouraged CAI to renew its bid. Secondly, certain features of that Decree-Law were not examined by the Commission in the second contested decision or by the General Court in the judgment under appeal, which constitutes a failure to state reasons. Thirdly, the General Court erred in law by not holding that the Commission had infringed Article 10 of Regulation No 659/1999, according to which ‘[w]here the Commission has in its possession information from whatever source regarding alleged unlawful aid, it shall examine that information without delay’, by failing to examine the information relating to unlawful State aid.

75 The Commission contends that the first argument is based on an incorrect interpretation of paragraph 114 of the judgment under appeal and that Ryanair has not established distortion of the evidence. The Commission points out that, in paragraphs 105 to 116 of the judgment under appeal, the General Court answered the assertion that the elements of Decree-Law No 134 relied on by Ryanair concerned the extraordinary administration procedure, that decree-law and the legal provisions relating to unemployment and social security. The Commission considers that the General Court was moreover under no obligation to examine the aid allegedly unlawfully granted to Alitalia in the context of the second contested decision. In view of the fact that it was held that the sale of Alitalia group assets did not involve any aid and that there was no continuity between Alitalia and CAI, the latter could not have benefited from aid which that decree‑law might have granted to Alitalia.

76 Alitalia-CAI maintains, first, that Ryanair’s reasoning regarding its first argument is based on assumptions. Furthermore, the fact that CAI submitted for a second time the same bid proves that the negotiations with the trade unions had no effect on the conditions of sale. Secondly, Alitalia-CAI claims that the matters invoked by Ryanair had not been raised by it during the preliminary investigation phase and that, in any event, the alleged advantages concerned Alitalia and not CAI. Thirdly, Alitalia-CAI disputes any infringement of Article 10 of Regulation No 659/1999 since the Commission correctly focused on the notified measure. In any event, the third ground of appeal refers to alleged possible aid which would not affect the scope of the second contested decision.

77 The Italian Republic points out, first, that CAI was under no obligation to employ Alitalia employees and that those it did employ signed new contracts. Furthermore, Decree-Law No 134 was already in force when the bid was submitted for the first time and that did not prevent either the failure of negotiations with the trade unions or the later submission of an identical bid. Ryanair’s second argument is manifestly inadmissible since Ryanair had at no time previously called into question Article 3 of Decree-Law No 134. It is, in any event, unfounded because the measures envisaged in Article 3 do not relate to CAI. The third argument is inadmissible because it does not include any specific complaint relating to the General Court’s findings.

Findings of the Court

78 By the first part of its third ground of appeal, Ryanair in reality seeks to call into question the findings of fact and the assessment of the evidence. However, under Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice, an appeal lies on points of law only. The General Court therefore has sole jurisdiction to establish and assess the relevant facts and to assess the evidence, save where such facts and evidence have been distorted (Case C‑403/10 P Mediaset v Commission [2011] ECR I‑0000, paragraph 73 and case‑law cited).

79 Concerning the second part of the third ground of appeal, it is clear that the arguments invoked by Ryanair in reality are aimed at persuading the Court to replace the General Court’s findings of fact with its own. In accordance with the preceding paragraph, such arguments must be held to be inadmissible. In such circumstances, Ryanair’s argument concerning failure to state reasons cannot be accepted.

80 The third part of the third ground of appeal can also not be upheld. On the basis of the findings made in paragraphs 112 and 113 of the judgment under appeal, which are not disputed by Ryanair in the context of this appeal, the General Court held, in paragraph 115 of that judgment, that, as regards the circumstances surrounding the adoption of amendments to the extraordinary administration procedure, the Commission cannot be accused of having carried out an incomplete or insufficient examination during the preliminary examination phase as regards the reductions in burdens and other advantages allegedly granted by Italian legislation to CAI, since those measures were not relevant to the question whether an advantage might have been granted to the purchaser of the Alitalia group assets. In such circumstances, the General Court cannot be accused of having infringed Article 10 of Regulation No 659/1999.

81 The third ground of appeal must, therefore, be rejected as being partially inadmissible and partially unfounded.

The fourth ground of appeal: failure to examine options other than the notified measure

Arguments of the parties

82 By its fourth ground of appeal, Ryanair considers, first, that the statement of reasons in paragraph 120 of the judgment under appeal is incorrect, in so far as it treats as equivalent the maximisation of the value of the assets in the interest of Alitalia’s creditors and the ‘aim of ensuring the long term profitability of an undertaking held by the public authorities’. Secondly, the General Court infringed European Union law by failing to take into account alternatives to the notified measure and, in paragraph 123 of the judgment under appeal, wrongly held that what was at issue was a mere question of evidence. Thirdly, evidence of the existence of alternative solutions was available to the Commission when the second contested decision was adopted, principally by reason of Decree-Law No 134 and Ryanair’s complaints. Fourthly, the General Court infringed Article 10 of Regulation No 659/1999 by failing to find fault with the failure to state, in the second contested decision, reasons why alternatives to the notified measure were not examined.

83 According to the Commission, the first argument is based on an incorrect interpretation of paragraph 120 of the judgment under appeal, which actually refers to ‘the conduct of the public authorities … guided by prospects of profitability in the long term’. In any event, that argument is ineffective as a result of the two other grounds set out in that paragraph. The Commission disputes the second argument and considers that, in the absence of any advantage for CAI, since the latter purchased the Alitalia group assets at their market value, the Commission was bound to find that the purchase price did not include State aid. The third argument is manifestly inadmissible because Ryanair does not rely on any error of law and merely restates what it considers as failings on the part of the Commission. The fourth argument is ineffective because, in the absence of an obligation to examine alternatives to the notified measure, it is of no importance whether or not there is evidence of such alternatives.

84 Alitalia-CAI claims that the first argument is inadmissible because it consists of a restatement of facts, namely the alleged alternatives to the notified measure. That argument is furthermore unfounded because the only relevant point of law in this case is the consistency of the General Court’s examination of the Commission’s assessment of the notified measure in the light of the market economy investor principle. Moreover, the alternatives referred to by Ryanair are non-existent or unrealistic.

85 The Italian Republic does not see any inconsistency between the sale of assets of an undertaking at the best price, on the one hand, and long-term prospects, on the other, and points out in that regard that the Italian authorities had intended to sell the Alitalia assets not at a ‘bankruptcy price’, but at market price. In that context, the Commission had no reason to examine alternatives, particularly when Ryanair did not submit any to it. The alternatives put forward to date are moreover only theoretical possibilities and are economically irrational.

Findings of the Court

86 Concerning Ryanair’s argument that the statement of reasons in paragraph 120 of the judgment under appeal is incorrect, suffice it to note that it is directed against a ground of the judgment under appeal which is included merely for the sake of completeness. Complaints directed against grounds of a judgment of the General Court which are included merely for the sake of completeness must be rejected outright since such grounds cannot provide any basis for setting that judgment aside (see, inter alia, the judgment of 21 March 2013 in Case C‑405/11 P Commission v Buczek Automotive [2013], paragraph 65 and case-law cited).

87 In those circumstances, it must be held that, where the Commission finds an absence of any advantage for the undertaking concerned, which leads it to find that there is no State aid, it cannot be considered to be bound to examine alternative solutions to the choice made by the notifying Member State.

88 It follows from the foregoing that the General Court did not err in law when it held that the Commission was under no obligation to examine alternatives to the procedure chosen by the Italian authorities.

89 Accordingly, the fourth ground of appeal must be rejected as being unfounded.

The fifth ground of appeal: error of law in applying the market economy investor principle

Arguments of the parties

90 Ryanair considers that the General Court did not observe the market economy investor principle. It claims in that regard that the statement of reasons is inadequate and complains of an incorrect statement of reasons in paragraph 133 of the judgment under appeal. According to Ryanair, what mattered was whether the continuity of service referred to in the call for declarations of interest was perceived by potential purchasers, and not by the Italian authorities, as a public service obligation. The General Court distorted the evidence by relying on ex post assurances from the Italian Republic and by failing to hold that continuity of service was an important obligation and a selection criterion. Furthermore, that public service obligation involves costs and is therefore liable to reduce the price of offers. Ryanair claims that paragraph 136 of the judgment under appeal is an instance of the distortion of evidence because only one of the 60 bids submitted related to Alitalia’s main activity as a whole and the continuity of service obligation. The statement of reasons in paragraph 137 of that judgment is incorrect because the Commission was obliged to investigate the absence of aid and the General Court should have found fault with the absence of such an examination.

91 The Commission doubts whether the first argument, stated in general terms, is admissible, and contends that Ryanair does not dispute the existence and role of mechanisms ensuring that the offer not be at a price lower than the market price. Furthermore, Ryanair has not established that the General Court distorted the evidence in the file by holding, in paragraph 134 of the judgment under appeal, that price was the dominant criterion. That argument is incorrect because the Commission could only have a duty to examine compensation for the performance of public service obligations.

92 Alitalia-CAI points out that there is no evidence that the continuity of service condition influenced the price. The judgment under appeal correctly states that CAI’s offer had to be made at the market price and that, consequently, the interests of creditors were safeguarded. It maintains that its bid was not influenced by the alleged public service or public authority condition.

93 The Italian Republic contends that, since it is clearly apparent from the call for declarations of interest that the price of the offer had to be the market price and that other criteria were secondary, the perception of the bidders could not have differed from that of the Italian authorities. Furthermore, the argument that the need to ensure continuity of service had the result of reducing the price of offers is merely conjecture.

Findings of the Court

94 Were Ryanair’s ground of appeal to be admissible, in so far as it contests the findings of fact made by the General Court, it is in any event unfounded.

95 Ryanair does not dispute the existence and role of national mechanisms ensuring that the bid be assessed in a way which guarantees that the price not be lower than the market price and does not establish that the continuity of service requirement is a public service obligation, but confines itself to claiming that the General Court should have held that continuity of service was a major obligation and a selection criterion.

96 In that regard, it should be noted that the General Court held, in paragraph 134 of the judgment under appeal, first, that the determinant criterion applied by the independent expert was that of price, in light of the fact that both Decree-Law No 134 and the call for declarations of interest provided that the sale price of the assets could not be lower than the market price, as determined by the independent expert, and, secondly, that the continuity of service criterion was a secondary criterion in relation to that of price, in the context of the assessment of offers by the extraordinary administrator. The General Court held, in paragraph 137 of that judgment, that a continuity of service obligation did not necessarily imply the imposition of a public service obligation on the operator whose bid was accepted. Those findings have not been called into question by Ryanair.

97 In any event, Ryanair did not adduce evidence before the General Court that the need to ensure continuity of service of air transport in the medium term resulted in a reduction of the price of Alitalia group assets below the market price. The General Court was, therefore, correct, in paragraph 134 of the judgment under appeal, to reject that argument.

98 Ryanair’s argument that, in paragraph 136 of the judgment under appeal, the General Court distorted the evidence, must be rejected. Assuming, as Ryanair claims, that only one of the 60 bids submitted related to Alitalia’s main activity as a whole and the continuity of service obligation, that fact does not in itself establish that that obligation was a public service obligation.

99 In those circumstances, the argument that, if a public service obligation had been imposed, the Commission would have had the duty to investigate the absence of aid and the General Court should have found fault with the absence of such an examination, must be held to be ineffective.

100 It follows from the foregoing that the fifth ground of appeal must be rejected.

The sixth ground of appeal: failure to identify the undertaking obliged to repay the aid

Arguments of the parties

101 Ryanair alleges that the General Court distorted the evidence by accepting that CAI was not the economic successor of Alitalia. The latter was not broken up and only one very insignificant part of the cargo business was terminated. CAI’s intention was to pursue the entirety of Alitalia’s passenger transport business.

102 The Commission considers that the General Court correctly held that there was no economic continuity and that Ryanair had not demonstrated distortion of the evidence concerning the sale of Alitalia group assets and the continuity of its business, but merely repeated the evidence already adduced at first instance.

103 According to Alitalia-CAI, the sixth ground of appeal is inadmissible because it concerns matters of fact. The General Court’s assessment is, in any event, consistent with the case-law and the Commission’s practice relating to economic continuity between undertakings.

104 The Italian Republic considers that it is redundant to discuss whether or not there is economic continuity between Alitalia and CAI because that continuity is specifically excluded from the procedure for sale, which, in any event, did not allow CAI to pay a price below the market price.

Findings of the Court

105 First, it should be noted that, in paragraph 141 of the grounds for the second contested decision, the Commission found that the bid submitted by CAI concerned only the passenger air transport business. As the General Court pointed out in paragraph 160 of the judgment under appeal, the Commission found that CAI would take over only certain assets relating thereto. Moreover, it is apparent from paragraph 66 of the grounds for the second contested decision that CAI’s bid covered all the timetable slots corresponding to the assets purchased in the procedure. It does not therefore follow that CAI’s bid covered 100% use of Alitalia’s timetable slots for passenger transport. Secondly, it is apparent from paragraph 141 of the grounds for that decision that that bid concerned approximately one half of the 180 Alitalia aircraft and that the new company will operate only part of the corresponding timetable slots.

106 It follows from the foregoing that the General Court did not distort the evidence which was submitted to it.

107 The sixth ground of appeal must, therefore, be rejected.

The seventh ground of appeal: inadequate statement of reasons concerning the assessment of the admissibility of the application for partial annulment of the first contested decision

Arguments of the parties

108 Ryanair claims that the General Court, in paragraph 197 of the judgment under appeal, did not state sufficient reasons why its action was inadmissible, thus infringing its obligation to state reasons and distorting the evidence which showed that the first contested decision had significantly affected Ryanair’s competitive position.

109 The Commission and Alitalia-CAI contend that the ground of appeal is in part unfounded and in part inadmissible. The Italian Republic considers, in particular, that, if it is confirmed that there was no economic continuity between Alitalia and CAI, the examination of the seventh ground of appeal becomes redundant.

Findings of the Court

110 It should be recalled that the duty incumbent upon the General Court under Article 36 and the first paragraph of Article 53 of the Statute of the Court to state reasons for its judgments does not require the General Court to provide an account that follows exhaustively and one by one all the arguments articulated by the parties to the case. The reasoning may therefore be implicit, on condition that it enables the interested parties to know the grounds upon which the General Court relied and provides the Court with sufficient material for it to exercise its powers of review on appeal (Case C‑320/09 P A2A v Commission [2011] ECR I‑0000, paragraph 97 and case-law cited).

111 In the present case, suffice it to point out that the reasoning set out by the General Court in paragraphs 193 to 199 of the judgment under appeal allows both Ryanair to know why the General Court dismissed its application for partial annulment of the first contested decision and the Court to have sufficient material to exercise its power of review.

112 In that regard, the General Court held, in paragraph 194 of the judgment under appeal, that, in accordance with settled case-law, a decision is of individual concern to the undertaking which was at the origin of the complaint which led to the opening of the investigation procedure and whose position on the market was significantly affected by the aid which is the subject of that decision. The General Court, in paragraph 196 of the judgment under appeal, acknowledged the active role played by Ryanair in the procedure which preceded the adoption of the first contested decision. On the other hand, it stated, in paragraph 197 of that judgment, that Ryanair had not demonstrated that its competitive position was adversely affected by the first contested decision.

113 Moreover, it must be held that, contrary to what is claimed by Ryanair, the General Court cannot be criticised by Ryanair for failing to explain why the effects on Ryanair of the disputed elements of the first contested decision were not materially different from those faced by other airline companies. On the contrary, as the Italian Republic has argued, it was for Ryanair to show that the loan had allowed Alitalia and CAI to acquire market shares held by Ryanair or to retain market shares which Ryanair would otherwise have held.

114 The seventh ground of appeal must therefore be rejected as being unfounded.

115 It follows from all of the foregoing that the appeal must be dismissed in its entirety as being unfounded.

Costs

116 Under Article 138(1) of the Rules of Procedure of the Court of Justice, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission and Alitalia-CAI have applied for costs and Ryanair has been unsuccessful, the latter must be ordered to bear, in addition to its own costs, all the costs incurred by the Commission and Alitalia‑CAI in the context of the present appeal.

117 Pursuant to Article 140(1) of the Rules of Procedure, which also applies to appeals by virtue of Article 184(1) thereof, Member States which have intervened in the proceedings are to bear their own costs. Therefore, the Italian Republic shall bear its own costs.

On those grounds, the Court (Second Chamber) hereby

1. Dismisses the appeal;

2. Orders Ryanair Ltd to bear, in addition to its own costs, the costs incurred by the European Commission and Alitalia - Compagnia Aerea Italiana SpA;

3. Orders the Italian Republic to bear its own costs.

[Signatures]