natgillin/translations-raw huggingface dataset:
Kommissionen bemærker oven i købet, at denne konklusion også ville gælde aftalerne fra 2007, 2008, 2009 og 2010, selv om man helt udelukkede de ydelsesspecifikke driftsomkostninger og kun som meromkostning valgte omkostninger til marketingydelserne.
However, this method may not be as relevant in the case of airport services.
Derfor står det klart, at aftalerne og tillægsaftalen af 16. juni 2009 til 2005-aftalen om London-ruten indgået af CCIPB med Ryanair og AMS, som er genstand for nærværende undersøgelse, hver især giver Ryanair og/eller AMS en økonomisk fordel.
The revenue and cost structure tends to differ significantly from airport to airport.
Da denne fordel hidrører fra specifikke aftaler med Ryanair eller AMS, er den selektiv.
These costs and revenues depend on the airport’s state of development, number of airlines operating from/to the airport, available capacity in terms of passenger traffic, state of the infrastructure, the regulatory burden, which may vary from Member State to Member State, and historical debts and obligations of the airport.
Tillægsaftalen af 16. juni 2009 til aftalen fra 2007 om ruten Pau-Charleroi, hvorved reklameindsatsen blev øget fra […] til […] EUR om året fra 1. januar 2009 uden ændring af ydelserne, giver ligeledes Ryanair og AMS en selektiv fordel, idet CCIPB ikke får noget til gengæld for den ekstra betaling på […] EUR om året og navnlig ikke kunne forvente mere trafik.
Moreover, the liberalisation of the air transport market complicates any purely comparative analysis.
Tabel 6
As the present case amply demonstrates, commercial arrangements between airports and airlines are not necessarily based on a list of public prices for individual services.
Passagerer ((s) = sæsonbegrænset).
These commercial relationships vary widely.
Aftale
They include the sharing of risks in terms of traffic and of correlative commercial and financial responsibilities, the generalised use of incentive mechanisms (for example, in the form of discounts connected with the number of links or passengers carried), and variations in the distribution of risk over the term of contracts.
Flyvninger/uge
As a result, it is difficult to compare transactions based on a price per rotation or per passenger.
Flyvninger/år
In its study of 9 April 2013, Ryanair essentially argues that the MEO test can be applied based on a comparison with the commercial arrangements of other European airports.
Dato for underskrivelsen af aftalen
It should firstly be noted that, during the procedure, neither France nor any interested third party has suggested to the Commission a sample of comparison airports that may be used in this case and that are sufficiently comparable to Pau airport in terms of traffic volume, type of traffic, type and level of airport services provided, proximity of the airport to a large city, number of inhabitants in the catchment area, prosperity of the surrounding area, and different geographical areas from which passengers could be attracted.
Dato for idriftsættelse af aftalen
Even if such a sample of airports had been available, a comparative method would have been totally unworkable in this case.
Oprindeligt fastsat dato for afslutning af aftalen
As proven above, the transactions to be analysed are complex packages consisting of an airport services agreement and a marketing services agreement (sometimes combined within the same legal medium).
Tillægsaftale fra 2009 til aftalen fra 2005 om London
These transactions involve several ‘prices’, namely the various airport charges, price of the groundhandling services and price of the marketing services, some of which depend on the number of passengers and others on the number of aircraft movements, with others involving fixed amounts.
Tabel 7
Each of these transactions therefore leads to a complex set of financial flows between the airport operator and the airline and its subsidiaries, consisting of the revenue from the airport charges, revenue linked to the groundhandling services and revenue linked to the marketing services.
Aftale fra 2003 om forbindelsen Pau-London
Accordingly, a comparison between just the airport charges invoiced by the CCIPB to the airlines concerned and the airport charges invoiced at the comparison airports would not provide any useful indication as to whether the MEO test was satisfied.
Antal afrejsende og ankommende pasagerer i alt
At the very least, in order to validly compare the transactions covered by this assessment, it would be necessary to identify, for the airports in the comparison sample, a set of comparable transactions, which must particularly include equivalent marketing services and equivalent groundhandling services.
Antal mellemlandinger om året
Identifying such a sample of comparable transactions would prove impossible, given that the transactions covered by this assessment are so complex and specific, and all the more so as the prices of groundhandling services and marketing services are rarely made public and would be difficult to obtain in order to form a basis for comparison.
Landingsafgift
Lastly, assuming that it could be established, based on a valid comparative analysis, that the ‘prices’ applied in the various transactions covered by this assessment were equivalent to or higher than the ‘market prices’ established using the sample of comparison transactions, the Commission could not, however, conclude that those transactions corresponded to the market price if it proved that, on their conclusion, the airport operator may have expected them to lead to incremental costs higher than the incremental revenues.
Passagerafgift
An MEO would not in fact be interested in offering goods or services at the ‘market price’ if this led to an incremental loss.
Groundhandlingindtægter
The Commission considers it appropriate to reiterate in the context of this analysis that, following the adoption of the new Guidelines, both France and the interested parties were invited to submit comments on the application of those guidelines to the present case (see recitals 22 and 23).
Indtægter fra luftfart i alt
In the event, neither France nor the interested parties disputed in substance the Commission’s approach according to which, where an appropriate benchmark cannot be identified to establish a true market price for the services provided by airports to airlines, the most relevant criterion for assessing the arrangements concluded between these two parties is an ex ante incremental profitability analysis.
Indtægter fra andet end luftfart
In the light of all the above, the Commission considers that the approach generally recommended in the new Guidelines for applying the MEO test to relationships between airports and airlines, namely the ex ante incremental profitability analysis, must be applied to the present case.
Indtægter i alt
This approach is justified by the fact that an airport operator may have an objective interest in concluding a transaction with an airline where it may reasonably expect this transaction to improve its profits (or reduce its losses) compared to a counterfactual situation in which this transaction is not concluded, regardless of any comparison with the conditions offered to airlines by other airport operators, or even with the conditions offered by the same airport operator to other airlines.
Driftsomkostninger (personale, diverse indkøb osv.)
On this last point, as the Commission noted in the new Guidelines, ‘price differentiation is a standard business practice, as long as it complies with all relevant competition and sectoral legislation.
Marketingomkostninger
Nevertheless, such differentiated pricing policies should be commercially justified to satisfy the MEO test’ (footnotes omitted).
Samlede omkostninger
In this regard, it should be noted that the comments of certain third parties that basically criticise the CCIPB for not having applied its general pricing system uniformly to all airlines are not relevant with regard to the application of the MEO test.
Ydelsesspecifikke pengestrømme (indtægter minus omkostninger)
For example, Air France’s comment, summarised in recital 169, that the CCIPB should have invoiced Ryanair for the ‘lighting charge’ under certain circumstances is without merit.
[- 100 000 til - 299 999]
An airport operator does not necessarily confer an economic advantage on an airline by negotiating conditions with that airline that fall outside its general pricing system, or even by negotiating a different pricing system from this general system.
[- 1 til - 99 999]
Joint assessment of the conduct of the airport operator and the CCIPB as a whole
Tabel 8
In the opening decision, the Commission considered, as a preliminary observation, that the conduct of the CCIPB as a whole should be assessed together with that of the airport operator and, where applicable, with that of the State or other public authorities supervising the airport operator or involved in its financing.
Aftale fra 2005 om forbindelsen Pau-London
France indicated its agreement to the joint assessment of the conduct of the service operating the airport, the CCIPB as a whole and other public authorities.
Tabel 9
In applying the MEO test, the conduct of the CCIPB as a whole, and not just that of its service operating the airport, should be taken into account.
Tillægsaftale af 16. juni 2009 til marketingaftalen af 30. juni 2005
The service operating the airport within the CCIPB does not in fact have its own legal personality distinct from that of the CCIPB.
Tabel 10
Furthermore, although the airport services agreements were signed with the airport, which received the airport charges paid by Ryanair and other airlines, the costs of the marketing services agreements were mainly charged to the CCIPB’s general budget and were not necessarily reflected in the airport’s accounts.
Aftale fra 2007 om forbindelsen Pau-Charleroi
France also indicates in this respect that the CCIPB directly covered these costs.
Tabel 11
The Commission therefore takes the view that the conduct of the airport operator and the CCIPB as a whole must be assessed together, in terms of their relations with the airlines and their subsidiaries, in order to apply the private operator in a market economy test.
Aftalen fra 2008 og 2009 om forbindelsen Pau-Bristol og aftalen fra 2010 om forbindelserne Pau-London, Pau-Charleroi og Pau-Beauvais
Conclusion on the terms for applying the market economy operator test
Aftalen om Bristol 2008
It is clear from all the above that, in order to apply the MEO test to the agreements in question, the Commission must analyse each marketing services agreement together with the corresponding airport services agreement, and must assess whether a hypothetical MEO, motivated by the prospect of profits and operating Pau airport in place of the CCIPB, would have entered into these transactions.
Aftalen om Bristol 2009
To this end, the Commission must determine the incremental profitability of the agreements as it would have been assessed by the MEO at the time of their conclusion, by estimating, for the entire period of application of the agreements:
Aftalen om London, Charleroi, Beauvais 2010
the future incremental traffic expected from the implementation of these agreements, possibly taking into account the effects of the marketing services on the load factors of the routes covered by the agreements;
[- 600 000 til - 999 999]
the future incremental revenues expected from the implementation of these agreements, including revenue from airport charges and groundhandling services, generated by the routes covered by these agreements, as well as non-aeronautical revenue from the additional traffic generated by the implementation of these agreements;
Anvendelse af det markedsøkonomiske investorprincip på aftalen med Transavia
the future incremental costs expected from the implementation of these agreements, including operating costs and any incremental investment costs generated by the routes covered by these agreements, as well as marketing service costs.
Kommissionen minder om, at CCIPB har udarbejdet en forretningsplan forud for indgåelsen af sin aftale med Transavia om ruten Pau-Amsterdam (Transavia-forretningsplanen).
These calculations will provide the future annual flows corresponding to the difference between incremental revenues and costs, which are to be discounted, if necessary, by a rate reflecting the cost of capital for the airport operator.
Kommissionen vurderer, at denne forretningsplan danner et passende udgangspunkt for anvendelsen af det markedsøkonomiske investorprincip på aftalen med Transavia, og har ikke grund til at betvivle de valgte antagelser undtagen på et enkelt punkt, nemlig tidshorisonten for vurderingen.
A positive net present value indicates in principle that the agreements in question do not confer an economic advantage, whereas a negative net present value reveals the presence of such an advantage.
Dette punkt behandles i det følgende.
It should be noted that, in this assessment, the arguments of the CCIPB and Ryanair that the price of the marketing services purchased by the CCIPB is equivalent to or less than what may be regarded as a ‘market price’ for such services are without merit.
Kommissionen bemærker, at denne forretningsplan munder ud i et »årligt økonomisk resultat« (svarer til de ydelsesspecifikke pengestrømme (indtægter minus omkostninger) i analysen af aftalerne med Ryanair/AMS), som er negativt i perioden 2006-2008 og derefter positivt i perioden 2009-2012 (se tabel 12 nedenfor).
A hypothetical MEO motivated by the prospect of profits would not be prepared to purchase such services, even at a price at or below ‘market price’, if it were predicted that, despite the positive effect of such services on passenger traffic on the routes concerned, the incremental costs generated by the agreements would exceed the incremental revenues at present value.
Kommissionen har opfordret Frankrig til at foretage en grundig analyse på grundlag af objektive data, som CCIPB kendte på tidspunktet for indgåelsen af aftalen med Transavia, for at kontrollere, om den kunne være indgået med en markedsøkonomisk investor, der lod sig lede af udsigten til rentabilitet.
In such a scenario, the ‘market price’ would be higher than the hypothetical MEO was prepared to pay, and the services in question would therefore logically be rejected.
Med henblik på denne analyse har Frankrig taget »årligt økonomisk resultat« fra Transavia-forretningsplanen, fratrukket selskabsskat for de år, hvor beløbet var positivt, og derefter anvendt en aktualiseringssats på 6,5 % til beregning af nettonutidsværdien.
For the same reasons, the fact that the prices set for the airport services in the airport services agreement may be equivalent to or higher than the prices invoiced by even slightly comparable airport operators for comparable services would be irrelevant in this analysis if these prices were not expected to generate sufficient incremental revenues to cover the incremental costs at present value.
Resultatet af denne analyse er derfor en nettonutidsværdi på [- 100 000 til - 200 000] EUR beregnet på den planlagte dato for åbningen af ruten Pau-Amsterdam, nemlig den 26. april 2006.
Application of the market economy operator test
Kommissionen bemærker imidlertid, at såvel Transavia-forretningsplanen som Frankrigs beregning bygger på en vurdering af rentabiliteten i perioden 2006-2012, mens selve aftalen ifølge ordlyden i den kun skulle gælde indtil 2009 uden bestemmelse om automatisk forlængelse.
For the purpose of assessing the agreements in question and given the above findings, it should be noted that both the existence and the amount of aid in these agreements fall to be assessed in the light of the situation prevailing at the time they were signed and, more specifically, in the light of the information available and developments foreseeable at that time.
Men af de grunde, der er gjort rede for i betragtning 393-397, bør analysen af den forventede rentabilitet foretages for aftaleperioden som bestemt fra begyndelsen og ikke en længere periode.
In its letter of 30 May 2011, France indicated that, at the time when the 2005 agreements were signed with Ryanair and AMS, no market study or business plan assessing and economically supporting the undertakings made by the airport to Ryanair existed.
Dette skyldes bl.a., at en fornuftig og forsigtig markedsøkonomisk investor ikke ved indgåelsen af en aftale kan regne med, at den forlænges, uanset om det er på samme eller andre vilkår.
According to the information provided by France, it also seems that no market study, business plan or profitability calculation was prepared by the CCIPB before signing the other agreements covered by the formal investigation procedure, except for the 2006 agreement with Transavia, for which a business plan was prepared in December 2005 (‘the Transavia business plan’).
Kommissionen bemærker, at en nettonutidsværdi beregnet for perioden 2006-2009 på grundlag af de årlige pengestrømme, der er præsenteret i forretningsplanen, alene for disse år og ved brug af den aktualiseringssats, som Frankrig foreslog, ville være [- 300 000 til - 400 000] EUR.
Except for the Transavia business plan, the only financial calculation provided by France is an impact study carried out for the 2003-2004 period, which estimated the financial impact of Ryanair passengers on the region at EUR 8 000 000-10 000 000.
Kommissionen bemærker dog, at aftalen afføder årlige ydelsesspecifikke pengestrømme, som alle er negative i den periode, som er omfattet af rentabilitetsanalysen (undtagen 2009, hvor det ydelsesspecifikke nettobeløb er stort set nul), hvilket nødvendigvis medfører en negativ nettonutidsværdi uanset den valgte aktualiseringssats.
A survey conducted among the airport’s passengers in January 2011, also provided by France, confirms these results and estimates the average spend per passenger on a Ryanair flight to Pau at EUR 339.
Aftalen fra 2006 med Transavia indebærer derfor en økonomisk fordel for Transavia.
However, these studies are not relevant for the purpose of applying the MEO test.
Da den kun gives til en enkelt virksomhed, er den selektiv.
This is because they concern the impact of Ryanair’s activity on the regional economic fabric in general, and not just on the airport’s profitability.
Tabel 12
However, it is settled case-law that regional development considerations cannot be taken into account when applying the MEO test.
Forretningsplan vedtaget for forbindelsen Amsterdam-Pau med Transavia
According to Ryanair, the lack of a business plan when agreements such as those covered by the formal investigation procedure are signed cannot be used as evidence that the MEO test is not satisfied.
Trafik (passagerer)
The Commission considers that the lack of a business plan is a serious indication that the agreements signed with Ryanair and AMS do not satisfy the MEO test, particularly as neither France nor the CCIPB has been able to provide, in respect of these agreements, any profitability calculation, even incomplete, that was carried out before the agreements were signed.
Indtægter
In general terms, France has not provided any information indicating that the airport operator analysed the risk taken with regard to the possible benefits of the agreements at the time when these were signed with Ryanair and AMS.
I alt (A)
On the contrary, according to France, the CCIPB was guided by a regional development objective.
Omkostninger
This further suggests that the agreements with Ryanair and AMS do not satisfy the MEO test.
heraf marketingydelser
As explained further on, these indications are confirmed by the Commission’s assessment of the profitability analysis that a hypothetical MEO would have carried out.
I alt (B)
During the procedure, the Commission invited France to reconstruct the profitability analysis that an MEO would have carried out before signing the agreements with Ryanair and AMS, based on the objective information known to the CCIPB when these agreements were signed and on the foreseeable developments.
Årligt økonomisk resultat
In response to this invitation, France provided a reconstruction of the projected incremental costs and revenues associated with each agreement signed with Ryanair and AMS.
Kumuleret resultat
This analysis is mainly based on ex post data, i.e. data observed after the agreements were signed.
Selskabsskat
As a result, the method used by France involved calculating the average unit costs and revenues per passenger based on the operating costs, revenues and airport traffic observed during the period from 2003 to 2011.
Ydelsesspecifikke pengestrømme efter selskabsskat
In its analysis of each agreement, France multiplied these data by the projected incremental traffic for each agreement, i.e. the traffic that, on the signature of the agreement, this could be expected to generate.
Nettonutidsværdi 2006-2009
As this analysis is mainly based on cost and revenue data observed after the various agreements were signed, and not necessarily on information foreseeable at the time when the agreements were signed, this method cannot reflect the profitability analysis that an MEO would have carried out before deciding whether to enter into these agreements.
[-300 til — 400]
Moreover, as regards the incremental operating costs, the method used by France is in fact based on the full unit costs, i.e. all the airport’s operating costs per passenger, instead of the incremental costs, i.e. the costs per passenger specifically generated by each agreement.
Siden tredje fase af liberaliseringen af lufttransporten blev iværksat den 1. januar 1993, er der intet til hinder for, at luftbefordrerne i EU driver flyforbindelser inden for EU og udnytter den ubegrænsede cabotagetilladelse.
It also clearly reduces the profitability of certain agreements, thus penalising the airlines concerned that have signed the agreements in question.
De har således fordrejet eller truet med at fordreje konkurrencen og påvirket samhandelen i EU.
The assumptions used and results of the analysis are presented in recitals 393 to 440.
De forskellige aftaler og tillægsaftaler hertil indgået af CCIPB med Ryanair og AMS og Transavia, som er genstand for den formelle undersøgelsesprocedure, opfylder alle kriterierne i artikel 107, stk. 1, i TEUF og udgør derfor alle statsstøtte.
As regards the agreement with Transavia, the Commission has directly used the Transavia business plan in order to make its assessment.
I det omfang disse foranstaltninger er blevet iværksat uden forudgående tilladelse fra Kommissionen, udgør de ulovlig støtte.
When assessing the value in entering into an airport services agreement and/or a marketing services agreement, an MEO would have chosen the term of the agreements in question as the time frame of its assessment.
FORENELIGHED MED DET INDRE MARKED
In other words, it would have assessed the incremental costs and revenues for the period of application of the agreements.
Den omhandlede støtte udgør driftsstøtte.
There does not seem to be any justification for choosing a longer period.
Men en sådan støtte kan kun erklæres for forenelig under usædvanlige omstændigheder, og hvis den er behørigt begrundet.
On the dates when the agreements were signed, a prudent MEO would not have relied on these agreements being renewed on their expiry, whether under the same terms or under different terms, particularly as low-fare airlines such as Ryanair and Transavia were and are known to be very dynamic in terms of launching and withdrawing routes, or even increasing and reducing frequencies.
Desuden følger det af Domstolens retspraksis, at det påhvilede Frankrig at anføre, på hvilket retsgrundlag den omhandlede støtte kunne anses for forenelig med det indre marked, og at påvise, at betingelserne for forenelighed var opfyldt.
The possible renewal of these agreements would therefore have been a distant future prospect that was too uncertain for an MEO to base reasonable economic decisions on this prospect.