Case T-77/16: Action brought on 19 February 2016 — Ryanair and Airport Marketing Services v Commission
Date: 2016-02-19
Institutions: General Court
Subjects: State aid, access to EU information, airport, control of State aid, financial aid, low cost airline, profitability, reimbursement of aid, rights of the defence








C_2016165EN.01001501.xml










10.5.2016   


EN


Official Journal of the European Union


C 165/15





Action brought on 19 February 2016 — Ryanair and Airport Marketing Services v Commission
(Case T-77/16)
(2016/C 165/16)
Language of the case: English

Parties


Applicants: Ryanair Ltd (Dublin, Ireland) and Airport Marketing Services Ltd (Dublin) (represented by: G. Berrisch, E. Vahida and I. Metaxas-Maragkidis, lawyers, and B. Byrne, Solicitor)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:






—


annul, insofar as it affects the applicants, Articles 1(2), 3, 4 and 5 of the European Commission Decision of 1 October 2014 in State aid case SA.27339 finding that Ryanair and Airport Marketing Services had received unlawful State aid from Flugplatz GmbH Aeroville Zweibrücken (‘FGAZ’)/Flughafen Zweibrücken GmbH (‘FZG’) and the Land Rhineland-Palatine, incompatible with the internal market; and










—


order the Commission to pay the costs.





Pleas in law and main arguments

In support of the action, the applicants rely on four pleas in law.






1.


First plea in law, alleging that the decision violates Article 41 of the EU Charter of Fundamental Rights, the principle of good administration, and the applicants’ rights of defence, as the Commission failed to allow the applicants access to the file of the investigation and put them in a position where they could effectively make known their views.










2.


Second plea in law, alleging a breach of Article 107(1) TFEU, in that the Commission misapplied the market economy operator (‘MEO’) test by carrying out a joint analysis of the airport services agreement with Ryanair and the marketing services agreement with AMS. Further, the Commission erroneously refused to rely on a comparator analysis. In the alternative, the Commission failed to attribute an appropriate value to marketing services, wrongly dismissed the rationale behind the Land’s decision to purchase such services, erroneously dismissed the possibility that part of the marketing services may have been purchased for general interest purposes, based its conclusions on incomplete and inappropriate data for its calculation of profitability, applied an excessively short time horizon, wrongly based its assessment on the agreed route only, and disregarded the network externalities that the airport could expect to gain from its relationship with Ryanair.










3.


Third plea in law, alleging a breach of Article 107(1) TFEU because the Commission failed to establish selectivity.










4.


Fourth plea in law, alleging on a subsidiary basis, a breach of Articles 107(1) and 108(2) TFEU, in that the Commission committed a manifest error of assessment and an error of law by finding that the aid to Ryanair and AMS was equal to the cumulated marginal losses of the airport instead of the actual benefit to Ryanair and AMS. The Commission should have examined the extent to which the alleged benefit had actually been passed on to Ryanair’s passengers. Further, the Commission failed to quantify any competitive advantage that Ryanair enjoyed through the airport’s (supposedly) below-cost payment flows. Finally, the Commission failed to explain properly why the recovery of the amount of aid specified in the decision was necessary to ensure the re-establishment of the situation prior to the grant of the aid.