State aid — Germany — State aid C 24/07 (ex NN 71/06) — State aid to Flughafen Lübeck GmbH and Ryanair — Invitation to submit comments pursuant to Article 88(2) of the EC Treaty (Text with EEA relevance)
Date: 2007-11-29
Institutions: European Commission
Subjects: Germany, State aid, air transport, control of State aid, exchange of information

29.11.2007

EN

Official Journal of the European Union

C 287/27

V

(Announcements)

PROCEDURES RELATING TO THE IMPLEMENTATION OF THE COMPETITION
POLICY

COMMISSION

STATE AID — GERMANY

State aid C 24/07 (ex NN 71/06) — State aid to Flughafen Lübeck GmbH and Ryanair

Invitation to submit comments pursuant to Article 88(2) of the EC Treaty

(Text with EEA relevance)

(2007/C 287/07)

By means of the letter dated 10 July 2007 reproduced in the authentic language on the pages following this
its decision to initiate the procedure laid down in
summary,
Article 88(2) of the EC Treaty concerning the abovementioned measure.

the Commission notified Germany of

Interested parties may submit their comments within one month of the date of publication of this summary
and the following letter, to:

European Commission
Directorate-General for Energy and Transport
Directorate A, General Affairs
DM 28, 6/109
B-1049 Brussels
Fax (32-2) 296 41 04

These comments will be communicated to Germany. Confidential treatment of the identity of the interested
party submitting the comments may be requested in writing, stating the reasons for the request.

SUMMARY

— Description of the measure/aid in respect of which the

Commission is initiating the procedure:

This case concerns certain business relationships which may
give rise to issues of State aid concern in connection with
Lübeck Blankensee Airport differing in nature according to
the parties involved.

— Potential State aid to Flughafen Lübeck GmbH (the
airport operator) for the operation of the airport: The
Hanseatic City of Lübeck seems to have financed the
operation of the airport by different means, namely a
Loss Transfer Agreement, a favourable Lease agreement,
and Guarantees.

— Potential State aid to Flughafen Lübeck GmbH by the
means of
Land of
Schleswig-Holstein has given to Flughafen Lübeck GmbH

financing: The

infrastructure

via the Hanseatic City of Lübeck funding for certain
building investments at Lübeck Airport (particularly the
setting up of a Category II Instrument Landing System
(ILS Cat II)).

— Potential State aid to Infratil in the context of the privati-
sation of Flughafen Lübeck GmbH: Flughafen Lübeck
GmbH was
the shares of
Flughafen Lübeck GmbH were sold by the Hanseatic City
of Lübeck to Infratil, a New Zealand-based infrastructure
operator.

‘privatised’, as 90 % of

— Potential State aid to Ryanair:

In the relationship
between Flughafen Lübeck GmbH and the low-cost
the latter might have benefited from
airline Ryanair,
State aid in the form of inadequate landing charges and
passenger charges or combined charge, and a marketing
arrangement.

C 287/28

EN

Official Journal of the European Union

29.11.2007

— Assessment of the measure/aid:

The Commission has come to the conclusion that the priva-
tisation of Flughafen Lüebeck GmbH might have been
carried out in accordance with the applicable Commission
guidelines, and hence might not entail any State aid.
However, at this stage,
it cannot with certainty determine
whether the price paid by Infratil was the market price.

The Commission has come to the conclusion that the three
other measures are likely to entail State aid.

Compatibility of the aid in the light of this legal basis,
including statement of the Commission's doubts, with
precise references to specific provisions in the relevant
guidelines/frameworks

The operating aid for Flughafen Lübeck GmbH has been
assessed under Article 86(2) EC treaty and Article 87(3)(c).
At this stage, the Commission has serious doubts whether it
can be declared compatible with the common market, as
none of the exceptions to the general prohibition of State
aid seems to apply.

The investment aid for Flughafen Lübeck GmbH might be
declared compatible based on Article 87(3)(c) and the 2005
Commission Guidelines for State aid for Regional Airports,
if all conditions set out in these guidelines are fulfilled. The
conditions are the following:

— construction and operation of the infrastructure meets a
(regional

clearly defined objective of general
development, accessibility, etc.),

interest

— the infrastructure is necessary and proportional to the

objective which has been set,

— the

infrastructure
prospects for use,
existing infrastructure,

has

satisfactory medium-term
in particular as regards the use of

— all potential users of the infrastructure have access to it

in an equal and non-discriminatory manner,

— the development of trade is not affected to an extent

contrary to the Community interest.

At this stage, the Commission has the doubts whether any
of these conditions is fulfilled.

The State aid in the context of the privatisation is unlikely
to be compatible with the common market, should it turn
out that the price paid by Infratil was less than the market
price, as none of the grounds of compatibility seems to
apply.

The operating aid for Ryanair could be declared compatible
with the common market if the conditions set out for the
authorisation of start-up aid in the 2005 Commission
Guidelines for State aid for Regional Airports are fulfilled.
The Commission has doubts whether the following of these
conditions are fulfilled:

— opening of new routes: the German authorities have not

demonstrated that the aid is limited to new routes,

— economic viability and degressivity: the German authori-
ties have not demonstrated that the aid is limited to new
routes, nor that it is degressive,

— aid linked to the Start-up costs: the German authorities
have not demonstrated that the aid is limited to the
start-up costs,

— publicity and non discrimination: the German authorities
have not demonstrated that the aid has been publicised,
and that it was available on a non-discriminatory basis.

In accordance with Article 14 of Council Regulation (EC)
No 659/1999 (1), all unlawful aid can be subject to recovery
from the recipient.

(1) OJ L 83, 27.3.1999, p. 1.