1 By their appeal, Ryanair DAC and Airport Marketing Services Ltd (‘AMS’) ask the Court of Justice to set aside the judgment of the General Court of the European Union of 29 September 2021, Ryanair and Others v Commission (T‑448/18, EU:T:2021:626; ‘the judgment under appeal’), by which the General Court dismissed their action for annulment of Articles 5 and 6 of Decision (EU) 2018/628 of the European Commission of 11 November 2016 on State aid SA.24221 (2011/C) (ex 2011/NN) implemented by Austria for the Klagenfurt airport, Ryanair and other airlines using the airport (OJ 2018 L 107, p. 1; ‘the decision at issue’), and of Articles 9 to 11 of that decision in so far as those articles concern the appellants.
2 Recital 26 of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU] (OJ 2015 L 248, p. 9) states: ‘For reasons of legal certainty it is appropriate to provide for a period of limitation of 10 years with regard to unlawful aid, after the expiry of which no recovery can be ordered.’
3 Article 2 of that regulation, entitled ‘Notification of new aid’, provides in paragraph 2 thereof: ‘In a notification, the Member State concerned shall provide all necessary information in order to enable the [European] Commission to take a decision …’
4 Article 5 of that regulation, entitled ‘Request for information made to the notifying Member State’, provides in paragraphs 1 and 2: ‘1. Where the Commission considers that information provided by the Member State concerned with regard to a measure notified pursuant to Article 2 is incomplete, it shall request all necessary additional information. … 2. Where the Member State concerned does not provide the information requested within the period prescribed by the Commission or provides incomplete information, the Commission shall send a reminder, allowing an appropriate additional period within which the information shall be provided.’
5 Article 12 of that regulation, which is included in Chapter III thereof, relating to the procedure regarding unlawful aid, is entitled ‘Examination, request for information and information injunction’. It states: ‘1. … the Commission may on its own initiative examine information regarding alleged unlawful aid from whatever source. … 2. If necessary, the Commission shall request information from the Member State concerned. Article 2(2) and Article 5(1) and (2) shall apply mutatis mutandis. … 3. Where, despite a reminder pursuant to Article 5(2), the Member State concerned does not provide the information requested within the period prescribed by the Commission, or where it provides incomplete information, the Commission shall by decision require the information to be provided … The decision shall specify what information is required and prescribe an appropriate period within which it is to be supplied.’
6 Article 17 of Regulation 2015/1589, entitled ‘Limitation period for the recovery of aid’, provides in paragraphs 1 and 2: ‘1. The powers of the Commission to recover aid shall be subject to a limitation period of 10 years. 2. The limitation period shall begin on the day on which the unlawful aid is awarded to the beneficiary either as individual aid or as aid under an aid scheme. Any action taken by the Commission or by a Member State, acting at the request of the Commission, with regard to the unlawful aid shall interrupt the limitation period. Each interruption shall start time running afresh. …’
7 The Rules of Procedure of the General Court of 4 March 2015 (OJ 2015 L 105, p. 1) provides in Article 76, entitled ‘Content of the application’: ‘An application of the kind referred to in Article 21 of the Statute [of the Court of Justice of the European Union] shall contain: … (f) where appropriate, any evidence produced or offered.’
8 Article 85 of those rules, entitled ‘Evidence produced or offered’, states: ‘1. Evidence produced or offered shall be submitted in the first exchange of pleadings. 2. In reply or rejoinder a main party may produce or offer further evidence in support of his arguments, provided that the delay in the submission of such evidence is justified. 3. The main parties may, exceptionally, produce or offer further evidence before the oral part of the procedure is closed or before the decision of the General Court to rule without an oral part of the procedure, provided that the delay in the submission of such evidence is justified. 4. Without prejudice to the decision to be taken by the General Court on the admissibility of the evidence produced or offered pursuant to paragraphs 2 and 3, the President shall give the other parties an opportunity to comment on such evidence.’
9 The background to the dispute and the decision at issue, as set out in paragraphs 1 to 39 of the judgment under appeal, may be summarised as follows.
10 Ryanair is an airline. AMS is a subsidiary of the latter, with the bulk of its activity consisting in the sale of advertising space on Ryanair’s website. Klagenfurt Airport (Austria) is located on the outskirts of the city of the same name, which is the capital of the province of Carinthia. The owner and operator of that airport is Kärntner Flughafen Betriebsgesellschaft mbH (‘KFBG’). The direct and indirect holders of the shares in that latter company fluctuated during the procedure leading to the adoption of the decision at issue, but they were always public authorities or entities. KFBG has a wholly owned subsidiary, Destinations Management GmbH (‘DMG’), which provides various services to the airport, in particular acting as a consultant to attract airlines to it.
11 On 22 January 2002, four agreements relevant to the present case were concluded. First, KFBG and Ryanair concluded an airport services agreement (‘the 2002 ASA’), which entered into force on 27 June 2002 for a period of five years and which provided for the possibility of an automatic renewal for a further five years under certain conditions. Under that agreement, Ryanair undertook to offer an airline service on at least a daily basis between Klagenfurt Airport and London Stansted Airport (United Kingdom) and to pay KFBG a fixed fee per rotation. Ryanair was also required to levy a fixed amount per departing passenger on each airline ticket, in respect of airport charges, as well as a security charge, and to transfer those charges to the airport. That agreement also stipulated the services that the airport was to provide to Ryanair and also other payments to KFBG and the obligations KFBG was required to fulfil.
12 Secondly, DMG and Leading Verge.com Ltd (‘LV’), now FR Financing (Malta) Ltd, a subsidiary of Ryanair which has since been wound up, concluded a marketing services agreement (‘the 2002 MSA between DMG and LV’), which entered into force on the day it was concluded and which was to end on 26 June 2007, with the possibility of an automatic renewal for a further five years under certain conditions. By that agreement, DMG commissioned LV to generate a promotional plan, provide links to DMG’s homepage and undertake certain promotional activities in return for a fixed annual payment.
13 Thirdly, DMG and AMS concluded a marketing services agreement (‘the 2002 MSA between DMG and AMS’), which entered into force on the day it was concluded for a period of five years. By that agreement, DMG commissioned AMS, in return for annual fees, to establish and operate two links on the website www.ryanair.com to websites chosen by DMG, highlighting the attractions of the province of Carinthia. If the parties so decided, AMS could provide additional services at a price to be agreed.
14 Fourthly, DMG and LV concluded a side letter to the 2002 MSA between DMG and LV (‘the 2002 side letter between DMG and LV’), which entered into force on the day of its conclusion, by which the parties agreed that, in relation to that MSA, a further payment was payable by DMG to LV for additional and intensified marketing measures during the term of the agreement between DMG and LV.
15 The 2002 ASA, the 2002 MSA between DMG and LV, as amended by the 2002 side letter between DMG and LV, and the 2002 MSA between DMG and AMS (together, ‘the 2002 agreements’) came to an end on 29 October 2005 when Ryanair discontinued its passenger air transport services between Klagenfurt Airport and London Stansted Airport.
16 On 23 August 2006, KFBG and Ryanair entered into an airport services agreement (‘the 2006 ASA’), concerning an air transport service to be operated three times a week to London Stansted Airport, from 19 December 2006 to 21 April 2007. Ryanair was obliged to pay the official airport charges of Klagenfurt Airport, but benefited from an incentive of EUR 7.62 per departing passenger, in accordance with an incentive scheme introduced by KFBG in September 2005.
17 On 21 December 2006, DMG and AMS concluded a marketing services agreement, which entered into force on 28 February 2007 and which was connected with Ryanair’s commitment to operate the flights provided for in the agreement referred to in the preceding paragraph. By that MSA, AMS undertook to provide a package of marketing services each year, intended, inter alia, to promote Klagenfurt/Carinthia as a destination.
18 The 2006 ASA and the marketing services agreement concluded on 21 December 2006 by DMG and AMS (together ‘the 2006 agreements’) were applicable until 21 April 2007.
19 On 11 October 2007, the Commission forwarded a complaint to the Republic of Austria, lodged with it by a competitor of Ryanair on the European air passenger transport market, which claimed that Ryanair had been granted unlawful State aid by, inter alia, the province of Carinthia, the city of Klagenfurt and Klagenfurt Airport, via KFBG, and it requested further information from that Member State. By letters of 15 November 2010 and 24 March 2011, the Commission requested additional information from the Austrian authorities. They replied by letters of 28 January and 30 May 2011. On 8 April 2011, the Commission also requested additional information from Ryanair, which provided it on 4 July 2011. The Commission forwarded that information to the Austrian authorities on 15 July 2011, which submitted comments by letter of 20 September 2011.
20 By letter of 22 February 2012, the Commission informed the Austrian authorities of its decision to initiate the procedure laid down in Article 108(2) TFEU in order to examine, inter alia, the 2002 and the 2006 agreements with Ryanair (OJ 2012 C 233, p. 28).
21 By letters of 29 May and 20 July 2012, Ryanair’s legal counsel requested access to the Commission’s file, which the Commission refused by letters of 19 June and 4 October 2012.
22 By letter of 28 May 2014, the Commission requested further information from the Republic of Austria regarding a marketing agreement concluded between Klagenfurt Airport and Ryanair on 22 January 2002, a request to which those authorities replied on 11 June 2014.
23 On 23 July 2014, the Commission decided to extend the investigation procedure (OJ 2014 C 348, p. 36).
24 In the decision at issue, the Commission considered, inter alia, that by the 2002 and 2006 agreements (together, ‘the agreements at issue’), the Republic of Austria had granted State aid to Ryanair, LV and AMS that was unlawful and incompatible with the internal market. It determined the recoverable aid amounts by taking into account the negative part, for each of the years that the agreements at issue applied, of the projected annual incremental cash flow at the time the agreements at issue were concluded. It considered that the aid contained in the 2002 and 2006 agreements amounted to an indicative sum of EUR 1827267 and EUR 141326 respectively, which it set out in Articles 5 and 6 of the decision at issue. Articles 9 to 11 of that decision oblige the Republic of Austria to recover that aid.
25 By application lodged at the Registry of the General Court on 18 July 2018, Ryanair, AMS and FR Financing (Malta) Ltd (together, ‘Ryanair and others’) brought an action for the annulment of Articles 5 and 6 of the decision at issue, and of Articles 9 to 11 thereof in so far as those articles concerned them. The companies relied on six pleas in law in support of that action. In addition, on 24 August 2018, they lodged an application for a measure of organisation of procedure, requesting that the Commission provide certain documents; on 25 September 2020, they submitted two documents as additional evidence (‘the additional evidence’).
26 By the judgment under appeal, the General Court, first of all, held that that additional evidence was inadmissible on the ground that Ryanair and others had not, for the purposes of Article 85(3) of the Rules of Procedure of the General Court, justified its late submission. It then rejected all the pleas put forward as unfounded and, consequently, dismissed the action in its entirety. It also ruled that there was no need to grant the application for a measure of organisation of procedure that had been submitted to it, since, having regard to the documents annexed by the parties to their written pleadings and also their answers to its written and oral questions, it considered that it already had sufficient information to rule on the action. Lastly, it ordered Ryanair and others to pay the costs.
27 The appellants claim that the Court of Justice should: - set aside the judgment under appeal; - set aside Articles 5 and 6 of the decision at issue and Articles 9 to 11 thereof in so far as those articles concern them, or, in the alternative, refer the case back to the General Court for reconsideration; and - in any event, order the Commission to pay the costs at first instance and on appeal.
28 The Commission contends that the Court should dismiss the appeal and order the appellants to pay the costs.
29 The appellants put forward four grounds of appeal in support of their appeal. The first alleges that the General Court erred in rejecting the additional evidence as inadmissible. The second claims misinterpretation of Article 17 of Regulation 2015/1589 and misapplication of Article 296 TFEU. The third alleges distortions of the evidence by the General Court when it assessed whether the Commission had lawfully applied the test of the private operator in a market economy. The fourth claims, in essence, that the General Court erred in law in its assessment of the determination of the amount of aid to be recovered, as carried out in the decision at issue.
30 By their first ground of appeal, the appellants argue that the General Court, in paragraphs 58 to 63 of the judgment under appeal, made two errors of law in rejecting as inadmissible the additional evidence which they had submitted on 25 September 2020, namely after the close of the written part of the procedure on 26 February 2019, but before the close of the oral part of that procedure on 14 January 2021, on the ground that they had not justified the late submission of that evidence for the purposes of Article 85(3) of the Rules of Procedure of the General Court.
31 They assert that the evidence in question, demonstrating that the decision at issue was vitiated by a manifest error of assessment that justified its annulment in part, consisted, as to the first item of those items of evidence, of a table of estimates of non-aeronautical revenues per departing passenger for the agreements at issue, which had been provided by Klagenfurt Airport to the Commission during the formal investigation procedure (‘the table of non-aeronautical revenues’). The second item was an unredacted version of a paragraph in a report drawn up by Ryanair’s economic adviser, dated 3 November 2014, showing data relating to the calculation of the incremental costs, which had been redacted in the version of that report annexed to the application initiating the proceedings (‘the cost data’).
32 They state that they argued before the General Court that, as regards the table of non-aeronautical revenues, they were unable, as a factual matter, to submit that table at an earlier stage of the proceedings since it was not in their possession at that time, their requests for access to the Commission’s file had been rejected, the General Court failed to respond to their application for a measure of organisation of procedure, and cooperation on the part of Klagenfurt Airport with a view to providing them with it had been impeded by several factors, including the crisis linked to the COVID-19 pandemic. As regards the cost data, it was neither necessary nor appropriate to submit those data at an earlier stage of the proceedings before the General Court since the importance of the data concerned, initially redacted, only became apparent upon review of the table of non-aeronautical revenues. The timing of the submission of those data was therefore linked to the timing of the submission of the table.
33 In that context, they argue that the General Court, in the first place, failed to have due regard to the legal principles underlying Article 85(1) to (3) of its Rules of Procedure, as identified in the case-law of the Court of Justice, namely the principle of adversarial proceedings, the principle of equality of arms, the right to a fair trial, and the sound administration of justice. In fact, the judgment under appeal contains no explanation as to how or why admitting the evidence at issue would have been inconsistent with those principles or impeded the General Court’s ability to deal with the case within a reasonable period of time. On the contrary, they contend that it is apparent from the judgment under appeal that those principles were observed since the Commission had the opportunity, both at the hearing and in subsequent written submissions, to comment on that evidence and its potential implications for the lawfulness of the decision at issue.
34 In the second place, the General Court, first, disregarded the case-law to the effect that the belated submission of evidence by a party may be justified by the fact that that party did not previously have the evidence in question at its disposal, the appellants referring in that regard to the judgment of 16 September 2020, BP v FRA (C‑669/19 P, EU:C:2020:713, paragraph 41). Second, the General Court disregarded the case-law to the effect that, when assessing whether a delay in the production of evidence is justified, it is necessary to ascertain whether the evidence in question is already contained in the case file which formed the basis of the decision at issue, in which case there is no reason to exclude it. The appellants refer in that regard to the judgments of the General Court of 14 March 2018, Crocs v EUIPO - Gifi Diffusion (Footwear), (T‑651/16, EU:T:2018:137, paragraph 17), and of 7 June 2018, Schmid v EUIPO - Landeskammer für Land- und Forstwirtschaft in Steiermark (Steirisches Kürbiskernöl) (T‑72/17, EU:T:2018:335, paragraph 23). In the present case, the appellants were not in possession of the table of non-aeronautical revenues at an earlier stage of the proceedings and the additional evidence at issue was already contained in the Commission’s file.
35 The additional requirements which the General Court seeks to impose, such as the production of correspondence between Ryanair and others and Klagenfurt Airport, have no legal basis, since the ability of the General Court to admit evidence under Article 85(3) of its Rules of Procedure is not dependent on the submission of ‘justification evidence’. It is apparent from the case-law that a statement of reasons may be sufficient to justify the late submission of evidence.
36 The Commission contends that this ground of appeal is unfounded.
37 As a preliminary point, it should be observed that the General Court’s examination of the admissibility of evidence or offers of evidence submitted to it constitutes a point of law that is subject, as such, to review by the Court of Justice in an appeal (see, to that effect, judgment of 16 September 2020, BP v FRA, C‑669/19 P, EU:C:2020:713, paragraph 42 and the case-law cited).
38 As regards the first part of the first ground of appeal, the arguments of which are set out in paragraph 33 above, it is important to point out that, in accordance with Article 76(f) of the Rules of Procedure of the General Court, an application must contain, where appropriate, any evidence produced or offered, and that Article 85(1) of the Rules of Procedure states that evidence produced or offered is to be submitted in the first exchange of pleadings.
39 In addition, Article 85(2) provides that in reply or rejoinder a main party may produce or offer further evidence in support of his or her arguments, provided that the delay in the submission of such evidence is justified. Article 85(3) adds that the main parties may, exceptionally, produce or offer further evidence before the oral part of the procedure is closed or before the decision of the General Court to rule without an oral part of the procedure, provided that the delay in the submission of such evidence is justified.
40 Article 85(4) provides that, without prejudice to the decision to be taken by the General Court on the admissibility of the evidence produced or offered pursuant to paragraphs 2 and 3, the other parties are to be given an opportunity to comment on such evidence.
41 As regards the provisions of the former Rules of Procedure of the Court of First Instance of the European Communities of 2 May 1991 (OJ 1991 L 136, p. 1), which are analogous to the basic rules which now appear in Article 76(f) and Article 85(1) of the Rules of Procedure of the General Court currently in force, the Court of Justice has observed that those provisions, which determine the stage of the proceedings at which the evidence offered must be produced, take into account the principles of adversarial proceedings and equality of arms and the right to a fair trial, in the interests of the sound administration of justice. In that they require the parties to make known the evidence and offers of evidence as soon as they lodge an application or the defence, their purpose is to ensure that the other parties are informed of the evidence lodged in support of the arguments put forward and to enable them to prepare an effective defence or reply, in accordance with those principles and the right to a fair trial. The Court of Justice has also held that the lodging of evidence and offers of evidence in the initial stage of the proceedings is also justified by the need to ensure the sound administration of justice, inasmuch as it enables the case file to be prepared swiftly and the case to be dealt with expeditiously (see, to that effect, judgment of 14 April 2005, Gaki-Kakouri v Court of Justice, C‑243/04 P, EU:C:2005:238, paragraph 30).
42 In addition, as regards the provision of those former rules of procedure which is now found, in essence, in Article 85(2) of the Rules of Procedure of the General Court, the Court of Justice has stated that that provision is also an expression of the requirement for a fair trial and, more specifically, the requirement that the rights of the defence are protected, inasmuch as it authorises the submission of offers of evidence in situations other than those now referred to in Article 76(f) and Article 85(1) of the Rules of Procedure of the General Court (see, to that effect, judgment of 14 April 2005, Gaki-Kakouri v Court of Justice, C‑243/04 P, EU:C:2005:238, paragraph 32).
43 Furthermore, with regard to the provisions of paragraphs 1, 2 and 4 of Article 85 of the Rules of Procedure of the General Court, the Court of Justice has also held that although, in accordance with the time-bar rule laid down in Article 85(1) of those rules of procedure, the parties must state the reasons for the delay in submitting or offering new evidence, the Courts of the European Union have jurisdiction to review the merits of the reasons for the delay in submitting or offering that evidence and, depending on the case, the content of that evidence and also, if its belated production is not justified to the requisite legal standard or substantiated, jurisdiction to reject it. The belated submission or offer of evidence by a party may be justified, in particular, by the fact that that party did not previously have the evidence in question at its disposal, or if the belated production of evidence by the opposing party justifies the file being supplemented, in such a way as to ensure observance of the inter partes principle (judgment of 16 September 2020, BP v FRA, C‑669/19 P, EU:C:2020:713, paragraph 41 and the case-law cited).
44 Those principles arising from the case-law referred to in paragraphs 41 to 43 above apply all the more to evidence produced and offered under Article 85(3) of the Rules of Procedure of the General Court. That provision, unlike Article 85(2), does not constitute a mere derogation to the general rule set out in paragraph 1 of that article, but is an exception to the basic rule and the derogation laid down, respectively, in Article 85(1) and (2), since the possibility provided for in that paragraph 3, according to the very wording of that provision, is available only exceptionally (see, to that effect, judgments of 14 April 2005, Gaki-Kakouri v Court of Justice, C‑243/04 P,EU:C:2005:238, paragraph 33, and of 16 September 2020, BP v FRA, C‑669/19 P, EU:C:2020:713, paragraph 47), with its application thus presupposing that the existence of exceptional circumstances be established (see, to that effect, judgment of 11 September 2019, HX v Council, C‑540/18 P, EU:C:2019:707, paragraph 67).
45 It follows from the whole of that case-law that it is actually the application of the rules on the taking of evidence set out in Article 85 of the Rules of Procedure of the General Court that ensures observance of the principles of adversarial proceedings or equality of arms, the right to a fair trial or the sound administration of justice. Consequently, the General Court cannot, by having applied the rule laid down in Article 85(3) of its Rules of Procedure, have infringed those principles and rights, that being the case even if it considered that the additional evidence was inadmissible on the ground that the delay in the production thereof had not been justified to the requisite legal standard (see, by analogy, judgment of 14 April 2005, Gaki-Kakouri v Court of Justice, C‑243/04 P, EU:C:2005:238, paragraph 34).
46 It also follows thereby that the General Court was not required to provide specific reasoning for its rejection of the additional evidence in the light of each of those principles and rights or with respect to its ability to decide the case within a reasonable time, since that reasoning is inherent in the application of that provision of the Rules of Procedure of the General Court. Nor, on the same grounds, may it be considered that the General Court is, as a matter of principle, obliged to accept evidence submitted belatedly unless it establishes that that evidence must be rejected in order to ensure observance of those same principles and rights.
47 The appellants cannot, in that regard, derive any useful argument from the fact that the Commission had the opportunity to comment, before the General Court, on the additional evidence and its possible implications for the lawfulness of the decision at issue. In fact, that circumstance merely reflects the proper application by the General Court of Article 85(4) of its Rules of Procedure, which, moreover, explicitly provides that the fact that the other parties are given an opportunity to comment on the evidence produced or offered pursuant, inter alia, to paragraph 3 of that article, is without prejudice to the decision to be taken by the General Court on the admissibility of that evidence.
48 The first part of this ground of appeal must consequently be rejected as unfounded.
49 As regards the second part of this ground of appeal, of which the arguments are detailed in paragraph 34 above, in the first place, it is true, as the appellants submit, in accordance with the case-law referred to in paragraphs 43 and 44 above, that the belated submission or offer of evidence by a party under Article 85(3) of the Rules of Procedure of the General Court may be justified, in particular, by the fact that that party did not previously have the evidence in question at its disposal. However, the fact remains that, first, in accordance with that same case-law, the General Court has jurisdiction to reject the evidence concerned if it considers that that belated submission is not justified to the requisite legal standard or is not substantiated and that, second, the application of the aforementioned paragraph 3 requires that exceptional circumstances be shown to exist.
50 In the present case, the General Court, in paragraphs 59 to 62 of the judgment under appeal, examined the circumstances which Ryanair and others had pleaded before it in order to show that the additional evidence was admissible. In paragraph 63 of that judgment, the General Court, as it had already indicated in paragraph 58 thereof, inferred from this that it had to be held that Ryanair and others had not adduced evidence capable of justifying, for the purposes of Article 85(3) of the Rules of Procedure of the General Court, the late submission of that evidence on 25 September 2020, that is four days before the hearing, and that that evidence was therefore inadmissible.
51 In that respect, as regards the table of non-aeronautical revenues, it found, in paragraph 59 of that judgment, that neither the request addressed to the Commission during the administrative procedure nor the application for a measure of organisation of procedure submitted to the General Court in August 2018 guaranteed that Ryanair and others would have access to the desired information. It also found that Ryanair and others had not set out the reasons why they had been prevented from taking the necessary steps, at the same time, with the authorities at Klagenfurt Airport in order to gain access to the data in the administrative file, which also included that table.
52 In paragraph 60 of the judgment, it added that the explanations provided by Ryanair and others, referring to the consequences of the COVID-19 epidemic on the proper functioning of that airport, were vague and unverifiable and were therefore not sufficient, in and of themselves, to establish a difficulty to obtain information from that airport of such kind that would have justified the late submission, a few days before the hearing, of a document, which, as confirmed by Ryanair and others, had been made available to the Commission by the Austrian authorities several years earlier, during the administrative procedure.
53 It also stated, in paragraph 61 of that judgment, that, assuming that reference by the Commission to the table of non-aeronautical revenues in the rejoinder may have justified the late production of that table, it was the case that that rejoinder had been lodged on 25 February 2019, that is, well before the crisis linked to COVID-19. The General Court observed in that regard that Ryanair and others had not adduced ‘any evidence, for example, from correspondence with the responsible services of [Klagenfurt Airport] to justify the production of [that table] on 25 September 2020, that is, 18 months after the Commission lodged the rejoinder’.
54 Contrary to what is claimed by the appellants, the General Court was fully entitled to find that Ryanair and others, in relying on those factors alone, had not established to the requisite legal standard that there existed circumstances that justified the admissibility of the table of non-aeronautical revenues under Article 85(3) of the Rules of Procedure of the General Court, as based, in the present case, on the fact that it was not possible for them to have that table at their disposal at an earlier stage of the proceedings, given the exceptional nature of that paragraph 3 in the rules on the taking of evidence before the General Court.
55 First of all, having regard to the provisions of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] (OJ 1999 L 83, p. 1), which was in force when the requests for access to the Commission’s file were submitted, and to the already settled case-law of the Court of Justice at that time, in relation to interested parties having no right of access to the Commission’s administrative file in the context of the review procedure opened in accordance with Article 108(2) TFEU - whether that be on the basis of that regulation or, in principle, in the context of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145. P. 43), except where there is a rebuttal of the general presumption of detriment to the protection of the objectives of investigation activities (see, to that effect, judgment of 29 June 2010, Commission v Technische Glaswerke Ilmenau, C‑139/07 P, EU:C:2010:376, paragraphs 54 to 62 and 67 to 70) - the General Court was justified in finding that the requests in question were insufficient evidence to establish that Ryanair and others were unable to have that table at their disposal at an earlier stage of the proceedings. Accordingly, it was fully entitled to consider that the negative outcome of those requests was insufficient to establish the fact that it was not possible for them to have that table at their disposal at an earlier stage of the proceedings and that, in view of the lack of explanation as to why Klagenfurt Airport had not been contacted directly at an earlier stage, that negative outcome did not serve to justify, to the requisite legal standard, for the purposes of Article 85(3) of the Rules of Procedure of the General Court, the admissibility of that table.
56 Next, given the period of more than one year which had passed between the date the rejoinder was lodged and the triggering of the consequences of the COVID-19 outbreak in the European Union, the finding by the General Court in paragraph 61 of the judgment under appeal, relating to the arguments made by Ryanair and others concerning those consequences, is also well founded. In that respect, with regard to the appellants’ arguments set out in paragraph 35 above, it is appropriate to add that the General Court did not, in that paragraph 61, impose any additional requirement, beyond those arising from Article 85(3) of its Rules of Procedure. As is apparent from paragraphs 43 and 44 above, the Courts of the European Union have jurisdiction to review the merits of the reasons for the delay in submitting evidence. Consequently, in that context, they may consider that the justification put forward by a party does not appear credible, where that party has not substantiated its claims with any documentary evidence even though it would have been able to do so.
57 Lastly, as regards the application for a measure of organisation of procedure submitted to the General Court, it was also clear that, in the absence of any obligation on the part of the General Court to grant such an application, the outcome thereof was too uncertain for Ryanair and others to be able effectively to rely on that step for the purpose of obtaining that table, with the result that referring to that application and the fact it was pending was likewise insufficient to establish the existence of circumstances that justified to the requisite legal standard the delay in producing that table and, consequently, that it was admissible under Article 85(3) of the Rules of Procedure of the General Court.
58 As regards the cost data, the General Court pointed out, in paragraph 62 of the judgment under appeal, that the paragraph containing those data was included in a study by Ryanair’s economic adviser, which had been drawn up for Ryanair and others in November 2014, and that they had not succeeded in establishing why they had not been able to include that document in their application or reply. In that regard, the General Court considered that their argument based on the ‘inextricable link’ between the production of those data and the table of non-aeronautical revenues could not be accepted, since the question of the Commission’s calculation of the incremental operating costs which Klagenfurt Airport could have expected had already been raised by Ryanair and others in their application initiating proceedings and in their reply and those data were already in their possession at that time.
59 In the light of those circumstances, which the appellants do not dispute, and the exceptional nature of Article 85(3) of the Rules of Procedure of the General Court, the General Court was also fully entitled to find that Ryanair and others had not justified the late submission of those data to the requisite legal standard and, consequently, to reject that additional evidence as inadmissible.
60 Furthermore, the appellants cannot, in the present case, derive any useful argument from the General Court’s ruling on the additional evidence submitted by the main parties after the close of the written part of the procedure in the case that gave rise to the judgment of 15 June 2022,Qualcomm v Commission (Qualcomm - Exclusivity payments) (T‑235/18, EU:T:2022:358), which they referred to at the hearing before the Court of Justice. As the Advocate General also observed, in essence, in points 39 and 40 of her Opinion, the justifications put forward in that case bear no relation to those pleaded in this instance.
61 Moreover, the existence of exceptional circumstances justifying the admissibility of evidence produced under Article 85(3) of the Rules of Procedure of the General Court must, by definition, necessarily be subject to an assessment on a case-by-case basis, in the light of the particular circumstances specific to each case.
62 Accordingly, the fact that the General Court was able, in the case which gave rise to that judgment, to consider, in the circumstances of that case, that the production of additional evidence after the end of the written part of the procedure was justified by exceptional circumstances and that that evidence should therefore be admitted under Article 85(3) of the Rules of Procedure, cannot establish that the judgment under appeal, which concerns different factual circumstances and different proposed grounds of justification, is vitiated by error in that regard.
63 Nor may the appellants derive any useful argument in the present case from the case-law relating to EU trade mark litigation, arising from the judgments of the General Court cited in paragraph 34 above, since those judgments do not have the scope attributed to them by the appellants.
64 In the first of those cases referred to, it was not evidence in the strict sense that was at issue, but elements that drew on the case-law of the Courts of the European Union and on national or international case-law, in respect of which the General Court had already held that neither the parties nor the General Court itself could be precluded from drawing on them for the purpose of interpreting EU law. In addition, the reference to the fact that those elements had already been submitted to the Board of Appeal of the European Union Intellectual Property Office (EUIPO) and examined by it was made only for the sake of completeness. As regards the second of those judgments, it is apparent from paragraph 23 thereof that it was also for the sake of completeness that the General Court observed that the evidence in question did not appear in the file relating to the proceedings before the Board of Appeal, the General Court having rejected that evidence on the ground that the parties concerned had not put forward any justification for its late submission.
65 In that regard, it should also be pointed out that those grounds, as given by the General Court for the sake of completeness, may be explained by the specific features of EU trade mark proceedings. In accordance with Article 178(5) of the Rules of Procedure of the General Court, once the application lodged with the General Court has been served, EUIPO is to forward to that Court the file relating to the proceedings before the Board of Appeal. Accordingly, as soon as that application is served, the General Court has access to the file and all the evidence it contains. However, that is not the case with the Commission’s administrative file in the framework of a procedure for reviewing State aid.
66 It follows from those considerations that the second part of this ground of appeal must be rejected as unfounded, as must, consequently, the first ground of appeal in its entirety.
67 By their second ground of appeal, the appellants argue that the General Court, by finding, first, that the Commission had not infringed the limitation period applicable to the recovery of the aid as regards the 2002 side letter between DMG and LV and the 2002 MSA between DMG and AMS, and, second, that the decision at issue contained sufficient reasoning in that regard, has erred in law, respectively, in interpreting Article 17 of Regulation 2015/1589 and applying Article 296 TFEU.
68 In the first place, the appellants criticise paragraphs 70 to 79 of the judgment under appeal, in so far as they render Article 17 meaningless. It is apparent from those paragraphs that the General Court considers that a broadly worded request for information from the Commission, using ‘catch all’ terms, without any specific indication of a measure that might constitute State aid, or without the Commission having any knowledge of such a measure in respect of which an interruption of the limitation period might apply, is legally sufficient to interrupt that period.
69 However, first, the wording itself of Article 17(2) of Regulation 2015/1589, which refers to ‘the unlawful aid’, means that requests for information must relate to the specific measure that the Commission is investigating.
70 Second, in prior cases where the Courts of the European Union have confirmed that a request for information issued by the Commission caused an interruption to the limitation period, those requests had identified the specific measure that the Commission was investigating. The appellants refer, in that regard, to the order of 7 December 2017, Ireland v Commission (C‑369/16 P, EU:C:2017:955, paragraph 42), and to the judgments of 26 April 2018, ANGED (C‑233/16, EU:C:2018:280, paragraph 84); of 10 April 2003, Département du Loiret v Commission (T‑369/00, EU:T:2003:114, paragraph 85); and of 22 April 2016, Ireland and Aughinish Alumina v Commission (T‑50/06 RENV II and T‑69/06 RENV II, EU:T:2016:227, paragraphs 3, 7 and 183).
71 Third, the 10-year limitation period prescribed by Article 17 of Regulation 2015/1589 is intended to ensure legal certainty and thus seeks, inter alia, to protect some of the interested parties, including the Member State concerned and the beneficiary of the aid. However, the judgment under appeal is incompatible with that objective. If it were possible to interrupt that period by a request for information which does not specify the measure under examination, for example because the Commission is still unaware of its existence, the principle of legal certainty would be infringed in respect of the Member State concerned as regards measures it has granted and which are still susceptible to recovery and as regards those it has granted which are no longer susceptible to recovery under Article 17.
72 Fourth, the General Court’s findings in paragraphs 77 to 79 of the judgment under appeal, to the effect that an interruption of the limitation period occurred, even if the Commission’s requests for information did not specifically concern the 2002 side letter between DMG and LV and the 2002 MSA between DMG and AMS, since those agreements were ‘inseparably linked’ to other agreements identified in the Commission’s previous requests for information, are also vitiated by an error of law. The fact that the Commission claimed, at the conclusion of its investigation, that certain measures were linked cannot retrospectively confer the capability of interrupting the limitation period on a request for information which, when it was issued, did not legally have that capability.
73 In the second place, the appellants claim that the General Court held, erroneously, in paragraphs 80, 81 and 83 to 85 of the judgment under appeal that the Commission had provided reasoning to the requisite legal standard in the decision at issue as regards the limitation period or its interruption. They argue that it is common ground that they had informed the Commission during the investigation that a significant amount of the alleged aid was, in their opinion, not recoverable owing to the expiry of the limitation period. Recitals 2 to 4 of the decision at issue, on which the General Court relied in order to find that the Commission had complied with its obligation to state reasons, make no reference to those arguments, nor even to the limitation period or to that period being interrupted as a result of the requests for information. The fact that the Commission is not required to address each of the arguments raised before it did not permit the General Court to consider that the decision at issue contained sufficient reasoning.
74 In order to enable the appellants to exercise effectively their right to judicial review at first instance and the General Court to exercise its powers of review correctly, it ought to have been possible for them to understand, solely on the basis of the content of the decision at issue, why the Commission had rejected the arguments raised by the appellants during the investigation as regards the limitation period. Such an understanding was impossible based solely on recitals 2 to 4 of that decision, which do not refer to the only relevant reason in that regard, namely the fact that the requests for information cited in those recitals had interrupted the limitation period.
75 The Commission contends that this second ground of appeal is unfounded.
76 As regards the first part of the second ground of appeal, relating to an alleged infringement of Article 17 of Regulation 2015/1589, said to have been committed in paragraphs 70 to 79 of the judgment under appeal, it should be observed that the General Court, after referring, in paragraphs 70 and 71 of the judgment, to the content of that article and the related case-law of the General Court, stated, in paragraph 72 of the judgment, that it was common ground in the present case that the limitation period of 10 years prescribed in paragraph 1 of that article had begun to run on 9 August 2002.
77 It then pointed out, in paragraph 73 of that judgment, that the complaint forwarded by the Commission’s letter of 11 October 2007 to the Austrian authorities referred to ‘favourable arrangements provided by [Klagenfurt Airport]’ to Ryanair from 27 June 2002; that, in its request for additional information sent to those authorities on 15 November 2010, the Commission had asked about the cooperation agreement between DMG and Ryanair on which the payments for marketing services were based and requested a copy of that agreement, and also information on the refunds of airport charges from 2000 onwards; and that the request for information sent to the Austrian authorities on 24 March 2011 contained a number of questions about the 2002 agreements, including a request to provide the originals of the agreements with Ryanair, including the marketing agreement.
78 The General Court also observed, in paragraph 74 of that judgment, that, in its request for additional information sent to Ryanair on 8 April 2011, the Commission had requested that Ryanair provide information on contracts concluded over the previous 10 years and had, in particular, asked Ryanair to provide it with a list of all the contracts that had not been renewed or whose performance had been interrupted during that period and to explain the reasons for the interruption and the lack of renewal. The General Court also stated in that paragraph that, in its reply to the Commission of 4 July 2011, Ryanair had asserted that all the contracts with that airport had been renewed or amended following commercial negotiations, with the exception of the 2002 MSA between DMG and LV, which had been discontinued before its expiry. The General Court considered that it was apparent from all those factors that all the abovementioned requests for information also covered the 2002 MSA between DMG and AMS and the 2002 side letter between DMG and LV.
79 In paragraph 75 of the judgment under appeal, it therefore held that, in the light of the case-law which it had referred to in paragraph 70 thereof, those requests for information constituted actions, within the meaning of Article 17(2) of Regulation 2015/1589, capable of interrupting the limitation period of 10 years. It found, in paragraph 76 of that judgment, that, since all those requests had been sent by the Commission to the Austrian authorities and to Ryanair during the 10-year period commencing on 9 August 2002, it could not be considered that the Commission’s powers to recover aid were time-barred under Article 17(1) of Regulation 2015/1589.
80 Lastly, in paragraphs 77 to 79 of the judgment under appeal, the General Court, in essence added that, ‘moreover’, in view of the various factual circumstances referred to in the decision at issue, which established the existence of an ‘inseparable’ link between the 2002 agreements, the Commission had been right to examine them as a single transaction. It thereby inferred that in that context, even if the Commission’s requests for information had not specifically concerned the 2002 MSA between DMG and AMS and the 2002 side letter between DMG and LV, the limitation period laid down in Article 17(1) of Regulation 2015/1589 had indeed been interrupted.
81 It follows from those factors, first, and contrary to what the appellants claim, that the General Court by no means considered that any request for information sent by the Commission to a Member State, however vaguely or broadly worded, and without actually containing any specific indication as to a measure liable to constitute State aid, or even without the Commission having any knowledge of the existence of possible aid, is sufficient to interrupt the limitation period laid down in Article 17(1) of Regulation 2015/1589.
82 On the contrary, it is apparent from those paragraphs, and more particularly from paragraphs 73 and 74 of the judgment under appeal, that the General Court considered that only an action taken ‘with regard to the unlawful aid’ was able to constitute an action capable of interrupting the limitation period, within the meaning of paragraph 2 of that article, and that that aid had been identified in the present case as of the Commission’s forwarding of the complaint of 11 October 2007 to the Republic of Austria, referred to in paragraph 19 of the present judgment, claiming that Ryanair had received unlawful State aid, inter alia from Klagenfurt Airport, through KFBG, from 27 June 2002, which was then specified as the administrative procedure progressed, that still being before the expiry of the 10-year period provided for in Article 17(1).
83 Second, it cannot be held, as the appellants also claim in essence, that it is necessary, in order for an investigatory measure taken by the Commission to be capable of being classified as an action that interrupts the limitation period, within the meaning of Article 17(2), for that measure to identify in a wholly specific manner each of the agreements within the contractual framework that constitutes the aid measure that is the subject of that investigation.
84 It is true that, under Article 17(1) of Regulation 2015/1589, the powers of the Commission to recover aid are to be subject to a limitation period of 10 years and that the second sentence of paragraph 2 of that article states that it is in particular ‘any action taken by the Commission … with regard to the unlawful aid’ which interrupts that period.
85 In addition, it is apparent from recital 26 of that regulation that the limitation period established by Article 17(1) was provided for reasons of legal certainty and is therefore intended, in particular, to protect some of the interested parties, including the Member State concerned and the beneficiary of the aid (see, to that effect, judgment of 6 October 2005, Scott v Commission, C‑276/03 P, EU:C:2005:590, paragraph 30).
86 However, it is important to bear in mind that the aim of Article 107 TFEU is to prevent trade between Member States from being affected by benefits granted by the public authorities which, in various forms, distort or threaten to distort competition by favouring certain undertakings or the production of certain goods (judgment of 15 June 2006, Air Liquide Industries Belgium, C‑393/04 and C‑41/05, EU:C:2006:403, paragraph 27 and the case-law cited). The review of State aid carried out by the Commission therefore contributes to the maintenance of undistorted conditions of competition within the internal market.
87 Furthermore, it follows from reading Article 12(2) in conjunction with Article 2(2) of Regulation 2015/1589 that if, in the context of a procedure regarding unlawful aid, the Commission requests information from the Member State concerned, the Member State is to provide all necessary information to enable the Commission to take a decision pursuant to Articles 4 and 9 of that regulation. Similarly, it follows from reading Article 12(2) in conjunction with Article 5(1) and (2) of that regulation that where the Commission considers that information provided by the Member State concerned with regard to a measure is incomplete, it is to request all necessary additional information and, where the Member State does not reply to such a request within the prescribed period, or provides incomplete information, the Commission is to send a reminder, allowing an appropriate additional period within which the information is to be provided. Article 12(3) provides, moreover, that where, despite such a reminder, the Member State concerned does not provide the information requested within the period prescribed by the Commission, or where it provides incomplete information, that institution is by decision to require the information to be provided, specifying inter alia what information is required.
88 To accept an interpretation of the concept of ‘any action taken … with regard to the unlawful aid’, such as that put forward by the appellants in the present case, would constitute a disproportionate interference with the Commission’s powers of investigation and, accordingly, with its ability to ensure, in accordance with the task conferred on it by the FEU Treaty, by means of the review of State aid, the maintenance of undistorted conditions of competition in the internal market. That is all the more so where, as here, what is at issue is unlawful State aid, in respect of which the Commission, by definition, has less information than that which relates to aid measures notified to it in accordance with Article 108(3) TFEU.
89 Third, no argument to the contrary may be derived from the judgments and order relied on by the appellants, referred to in paragraph 70 above. The paragraphs of those judgments and the order to which they refer are limited to findings of a factual nature, specific to each of those cases, and do not contain any finding capable of corroborating the interpretation of Article 17(2) of Regulation 2015/1589 advocated by the appellants in the present case.
90 Fourth, inasmuch as the appellants criticise paragraphs 77 to 79 of the judgment under appeal, which are detailed in paragraph 80 above, it is sufficient to observe that, as indicated by the use of the word ‘moreover’, the grounds in those paragraphs are for the sake of completeness, such that that part of the appellants’ line of argument must be rejected as ineffective (see, to that effect, judgments of 24 October 2002, Aéroports de Paris v Commission, C‑82/01 P, EU:C:2002:617, paragraph 41, and of 12 May 2022, Klein v Commission, C‑430/20 P, EU:C:2022:377, paragraph 32 and the case-law cited).
91 The first part of the second ground of appeal must therefore be rejected as in part unfounded and in part ineffective.
92 As regards the second part of this ground of appeal, relating to alleged infringement by the General Court of Article 296 TFEU in paragraphs 80, 81 and 83 to 85 of the judgment under appeal, it should be observed that the General Court, after recalling the relevant case-law in paragraphs 80 and 81 of that judgment, found in paragraph 82 thereof that it was apparent from recitals 2 to 4 of the decision at issue that the Commission had referred to the dates on which it had requested additional information from the Austrian authorities and Ryanair about the agreements that were the subject of the complaint of 5 October 2007, on the basis of which a competitor of Ryanair had complained to the Commission that that airline had received unlawful State aid in respect of Klagenfurt Airport.
93 In paragraph 83 of that judgment, it held that the Commission had thus set out in a sufficiently clear fashion the dates on which the 10-year period laid down by Article 17(1) of Regulation 2015/1589 had been interrupted. It added that, given that the Austrian authorities and Ryanair were aware, in their capacity as recipients, of the content of the requests for additional information which had been sent to them by the Commission, the latter was required to indicate only the facts of fundamental importance in the context of the decision at issue, namely the dates on which it had carried out the actions capable of interrupting the limitation period.
94 It inferred from this, in paragraphs 84 and 85 of the judgment under appeal, that, in those circumstances, the Commission was not required to provide a specific statement of reasons on that point in the decision at issue and that it had therefore given sufficient reasons for that decision in that respect.
95 In so ruling, the General Court did not infringe Article 296 TFEU. In accordance with the settled case-law of the Court of Justice, which was indeed referred to by the General Court in paragraph 80 of the judgment under appeal, the statement of reasons required by Article 296 TFEU must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the court having jurisdiction to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of that article must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgments of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 63, and of 2 September 2021, Commission v Tempus Energy and Tempus Energy Technology, C‑57/19 P, EU:C:2021:663, paragraph 198 and the case-law cited).
96 It should also be borne in mind that the procedure for reviewing State aid is, in view of its general scheme, a procedure initiated in respect of the Member State responsible, in the light of its obligations under EU law, for granting the aid. Accordingly, in that procedure, interested parties other than the Member State concerned cannot themselves seek to engage in an adversarial debate with the Commission in the same way as is offered to that Member State. No special role is reserved to the recipient of aid, among all the interested parties, by any provision of that procedure. In that regard, it must be made clear that the procedure for reviewing State aid is not a procedure initiated against the recipient or recipients of aid entailing rights on which it or they could rely which are as extensive as the rights of the defence as such (see, to that effect, judgment of 11 March 2020, Commission v Gmina Miasto Gdynia and Port Lotniczy Gdynia Kosakowo, C‑56/18 P, EU:C:2020:192, paragraphs 73 to 75 and the case-law cited).
97 The General Court was therefore fully entitled to hold that the decision at issue contained sufficient reasoning as regards the application of the limitation period laid down in Article 17(1) of Regulation 2015/1589. In particular, it was not necessary for the Commission, in order to fulfil its obligation to state reasons for the decision at issue in that regard, to address the appellants’ arguments since, in accordance with the case-law referred to in the preceding paragraph, the recipient of the aid cannot seek to engage in an adversarial debate with the Commission in the same way as is offered to the Member State concerned and since it was apparent, at least implicitly, from that decision that the Commission considered that the arguments advanced before it by the appellants could not be accepted.
98 The second part of the second ground of appeal must therefore be rejected as unfounded.
99 Consequently, the second ground of appeal must be rejected as in part unfounded and in part ineffective.
100 By their third ground of appeal, the appellants claim that the General Court distorted the evidence produced before it when assessing whether the Commission had lawfully applied the test of the private operator in a market economy in order to determine whether Ryanair and others had received an advantage, for the purposes of Article 107(1) TFEU. They allege that the Commission, in its ex ante calculation of the profitability of the agreements at issue, had relied on incomplete, unreliable and inappropriate data, which vitiated its finding as to the existence of an advantage. Three distortions are alleged.
101 First, in paragraphs 331 and 332 of the judgment under appeal, concerning the ex ante analysis of the profitability of the 2006 agreements, the General Court distorted Clause 7.1 of the 2006 ASA, attached as Annex A.2.5 to the application initiating proceedings. That clause lists the security fee as a charge that Ryanair was contractually required to pay to the airport. In addition, the General Court distorted Section 2.2.3 of the report of 31 August 2012 prepared by the appellants’ economic adviser, attached as Annex A.3.5.1 to that application, and Table 2.21 in that adviser’s report of 13 April 2012, attached as Annex A.3.4.1 to the application, which confirm that Ryanair did in fact pay that security fee to the airport.
102 However, the appellants argue that the General Court validated the Commission’s error of treating that fee as an incremental cost for Klagenfurt Airport, which led to the Commission underestimating the expected profitability of the 2006 agreements from that airport’s perspective. There is no evidence in the file that that fee was reimbursed to Ryanair, contrary to what is suggested in paragraph 331 of the judgment under appeal, or any evidence indicating which party bore the cost of that reimbursement. Only paragraphs 101 to 103 of the Commission’s rejoinder at first instance might support the General Court’s assessment, but the Commission merely argued in those paragraphs, without any evidence, that the Austrian authorities had confirmed twice that the security fee had been reimbursed to Ryanair.
103 Second, in paragraphs 301 and 302 of the judgment under appeal, the General Court distorted recital 379(e) of the decision at issue, which confirms that a security margin was included in the estimate of the incremental operating costs that the airport could expect for the 2002 agreements; it also distorted paragraphs 2.24 to 2.27 of the economic adviser’s report of 18 July 2018, submitted as Annex A.7.6 to the application initiating proceedings, which showed that no details were provided concerning the calculation of that security margin.
104 That evidence demonstrates that the estimate of the airport’s incremental operating costs, on which the Commission based its ex ante profitability analysis, included a parameter, namely that security margin, the calculation of which was never explained or disclosed, which led to an inexplicably high estimate of incremental operating costs, in particular in relation to comparable airports also subject to State aid investigations. In the contested paragraphs of the judgment under appeal, the General Court validated the Commission’s reliance on that estimate, without referring to the report of 18 July 2018. It should thus be concluded that the General Court disregarded or failed duly to consider the evidence submitted to it in that regard.
105 Third, in paragraph 306 of the judgment under appeal, the General Court distorted, (i), Article 2(a) of the 2002 ASA, submitted as Annex A.2.1 to the application initiating proceedings, from which it is apparent that the target load factor was 76%; (ii), recital 382 and Table 10 of the decision at issue, which show that the Commission used a load factor of 70% for its analysis of the 2002 ASA, and recital 415(a) and Table 11 of that decision, which show that the Commission used a load factor of 85% for its analysis of the 2006 agreements; (iii), recital 17 of that decision, from which it is apparent that civil aircraft began to operate flights at the airport ‘soon after’ it was founded in 1915; and lastly, (iv), paragraph 2.14 of the economic adviser’s report of 18 July 2018, attached as Annex A.7.6 to the application initiating proceedings, from which it is apparent that the load factor of 76% was close to, although slightly below, the load factor of approximately 80% achieved by Ryanair across its route network at the time the 2002 ASA was signed.
106 That evidence shows that the load factor of 70% relied on by the Commission to carry out its ex ante profitability analysis of the 2002 ASA was excessively low. That evidence shows, first, that that load factor was 6 percentage points lower than the target load factor agreed between the parties and 15 percentage points lower than the load factor applied by the Commission in its analysis of the 2006 agreements and, second, that the airport had several decades of experience in civil aviation by the time the 2002 ASA was signed, calling into question the notion that its lack of experience with a particular airline, in this case Ryanair, would have had a material impact on its load factor assumptions.
107 However, the General Court validated the Commission’s reliance on that load factor of 70%, although there is no evidence in the file to support the General Court’s findings that the absence of prior dealings between Klagenfurt Airport and Ryanair justified the use of a conservative load factor, or any evidence to support its assessment that low-cost airlines were not sufficiently established in 2002 in order to justify a higher load factor. Moreover, the only part of the file capable of supporting those assessments made by the General Court is paragraph 115 of the Commission’s defence and paragraph 85 of its rejoinder. However, the Commission put forward no evidence when claiming in those paragraphs that the decision to adopt the 70% rate was justified by Klagenfurt Airport’s lack of experience with the appellants and the status of low-cost airlines as newcomers.
108 The Commission contends that none of the alleged distortions has been established and that, in any event, none of them is obvious from the documents in the file.
109 According to settled case-law of the Court of Justice, where the General Court has established or assessed the facts, the Court of Justice has jurisdiction, under Article 256 TFEU, solely to review their legal characterisation and the legal conclusions which were drawn from them. The appraisal of the facts by the General Court does not therefore constitute, save where the clear sense of the evidence produced before it is distorted, a question of law which is subject, as such, to review by the Court of Justice (judgment of 28 January 2021, Qualcomm and Qualcomm Europe v Commission, C‑466/19 P, EU:C:2021:76, paragraph 42 and the case-law cited).
110 Where an appellant alleges distortion of the evidence by the General Court, that person must, under Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of the Rules of Procedure of the Court of Justice, indicate precisely the evidence alleged to have been distorted by the General Court and show the errors of appraisal which, in that person’s view, led to such distortion. In addition, that distortion must be obvious from the documents in the Court’s file, without there being any need to carry out a new appraisal of the facts and the evidence (judgment of 28 January 2021, Qualcomm and Qualcomm Europe v Commission, C‑466/19 P, EU:C:2021:76, paragraph 43 and the case-law cited).
111 Furthermore, although distortion of the evidence may consist of an interpretation of a document contrary to the content of that document, it must be obvious from the file before the Court of Justice, and it presupposes that the General Court has manifestly exceeded the limits of a reasonable assessment of that evidence. In that regard, it is not sufficient to show that a document could be interpreted differently from the interpretation adopted by the General Court (judgment of 28 January 2021, Qualcomm and Qualcomm Europe v Commission, C‑466/19 P, EU:C:2021:76, paragraph 44 and the case-law cited).
112 It is in the light of those principles that the three parts of the third ground of appeal must be examined.
113 As regards, in the first place, the first part of this ground of appeal, directed against paragraphs 331 and 332 of the judgment under appeal, the General Court found, in the first of those paragraphs, that the Commission had stated, in its written pleadings and at the hearing that, first, according to information which it had twice obtained from the Austrian authorities, the fee in question and all the rotation fees had been refunded to Ryanair and, second, that those authorities had also informed the Commission that the full reimbursement of airport fees had been put into effect at the same time as the introduction of the 2005 incentive scheme and was common practice at the time in order to attract new airlines to Klagenfurt Airport.
114 In the second of those paragraphs, the General Court stated that it was apparent from those elements that the Commission had sought, in a diligent manner and in the interests of the sound administration of the fundamental rules of the FEU Treaty relating to State aid, relevant information from the Member State concerned, enabling it to determine whether, as regards the 2006 agreements, the security fee had been repaid to Ryanair; it thereby concluded that the Commission was entitled, without making a manifest error of assessment, to regard that fee as an incremental cost for the airport for the purposes of analysing the profitability of the 2006 agreements.
115 It is apparent, moreover, from paragraph 328 of that judgment that, in that regard, before the General Court, Ryanair and others, referring to the terms of the 2006 ASA, criticised the Commission for having erred in taking the view that, as regards the 2006 agreements, the security fee represented a cost for Klagenfurt Airport, and that they had stated that Ryanair’s invoice data showed that it paid the security fee to that airport.
116 However, it follows from what is set out in paragraphs 113 and 114 above that, first, the General Court made no reference in paragraphs 331 and 332 of the judgment under appeal to the reports mentioned in paragraph 101 of the present judgment. Consequently, the General Court cannot be criticised for having distorted those reports in that part of the judgment under appeal.
117 Second, in paragraphs 331 and 332 of the judgment under appeal, the General Court did not assert that the security fee had not been invoiced to Ryanair by Klagenfurt Airport or call into question the fact that that fee had been paid by Ryanair to that airport, but merely stated that the Commission had twice requested information in that regard from the Republic of Austria and that the latter had, on two occasions, stated that that fee and all the rotation fees had been reimbursed to Ryanair. It follows that the General Court likewise did not distort Clause 7.1 of the 2006 ASA.
118 In addition, inasmuch as the appellants dispute, by the first part of their third ground of appeal, the probative value attributed by the General Court to the various items of evidence which were submitted to it for assessment, their arguments, in accordance with the case-law referred to in paragraph 109 above, are inadmissible since they seek a new assessment of the facts and evidence by the Court of Justice.
119 The first part of this ground of appeal must therefore be rejected as in part unfounded and in part inadmissible.
120 As regards, in the second place, the second part of this ground, directed against paragraphs 301 and 302 of the judgment under appeal, the General Court, in the first of those paragraphs, addressed the argument put forward by Ryanair and others that the Commission had made an error of assessment in confirming the Austrian authorities’ choice to add a security margin to the values which were the basis for the calculation of the incremental operating costs due to the volume of incremental traffic expected during the term of the 2002 agreements. It noted that it was apparent from recital 379(e) of the decision at issue that the values used as the basis for calculating those costs had been determined on the basis of the cost accounting system used by Klagenfurt Airport in 2002, and that that system comprised the landing tariff, the passenger tariff and the ramp handling fee, the traffic handling fee, the infrastructure tariff and the hangar service fee. It stated, in the same paragraph, that it had been noted by the Commission and confirmed by Ryanair and others at the hearing that the cost accounting system used by that airport in 2002 allowed for a less detailed allocation of costs than that put in place in 2005 and which was described in recital 415 of the decision at issue.
121 In paragraph 302 of that judgment, it added that, in that regard, the Commission had referred, in that recital 379(e) of the decision at issue, to the Austrian authorities’ explanation that they had used the most optimistic estimates for the values corresponding to the incremental operating costs per additional rotation and per tonne of maximum take-off weight, and per additional departing passenger. It inferred from this, in that paragraph, that the Commission could not therefore be criticised for a manifest error of assessment in approving that method for calculating the incremental operating costs as regards the 2002 agreements since, in the absence of detailed data and as a result of the Austrian authorities’ optimistic base estimates, its intention of arriving at a prudent estimate was reasonable.
122 First, it follows from those two paragraphs of the judgment under appeal that the General Court did not deny that, as was apparent from the decision at issue, a security margin had been included by the Austrian authorities in the assessment of the incremental operating costs at issue. It is also apparent from the file that those paragraphs reproduce precisely the content of recital 379(e) of the decision at issue. Consequently, the distortion alleged in that regard is unfounded.
123 Second, as regards the claim that the General Court distorted the report by the appellants’ economic adviser referred to in paragraph 103 above, it is sufficient to note that the General Court made no reference to that report in paragraphs 301 and 302 of the judgment under appeal and it therefore cannot be criticised for having distorted that report in that part of the judgment under appeal.
124 In reality, by referring to that report the appellants seek to have the Court of Justice carry out a fresh assessment of the facts and evidence, which falls outside the jurisdiction of the Court of Justice on appeal, in accordance with the case-law referred to in paragraph 109 above.
125 The second part of the third ground of appeal must therefore be rejected as in part unfounded and in part inadmissible.
126 As regards, in the third place, the third part of this ground of appeal, directed against paragraph 306 of the judgment under appeal, the General Court observed in that paragraph that, as the Commission had rightly stated, it was not unreasonable for Klagenfurt Airport to adopt a conservative approach to the load factor when assessing the 2002 agreements, given that it had not yet gained any experience with Ryanair and others and that, in addition, low-cost airlines were at the time, in general, less well established than now. It added that it had to be observed that the load factor of 70% estimated by that airport was not far from the target of 76% under the 2002 ASA and that, consequently, the Commission had not committed a manifest error of assessment in using that rate of 70%. It added that that was all the more true given that the figure of 50000 arriving passengers expected per year, mentioned in the preamble to the 2002 ASA and implying a load factor of 76%, was a target that was to be achieved and not a binding obligation.
127 It follows from those grounds of the judgment under appeal that, first, the General Court did not distort the 2002 ASA, as the appellants claim, since it explicitly stated that that agreement targeted a load factor of 76%. Nor did the General Court distort recital 382 and Table 10 of the decision at issue, since it observed that the Commission had used a load factor of 70% for its analysis of that agreement.
128 Second, the General Court likewise did not distort, for the purposes of the case-law referred to in paragraphs 110 and 111 above, recital 415(a) of the decision at issue or Table 11 thereof, in so far as paragraph 306 of the judgment under appeal does not actually refer to the load factor of 85%; moreover, that rate is referred to in paragraph 397 of the judgment under appeal.
129 Third, recital 17 of the decision at issue does indeed state that ‘[Klagenfurt Airport] was founded in 1915 as a military air base’ and that ‘soon after that it was used for both military and civil purposes and [that] this dual utilisation continues until today’. However, as is apparent from paragraph 126 above, the General Court merely observed, in paragraph 306 of the judgment under appeal, that that airport had not yet, in 2002, gained any experience with Ryanair and others, and that low-cost airlines were, at the time, less well established than now. The alleged distortion of recital 17 is therefore likewise not established.
130 Fourth, as regards the alleged distortion of paragraph 2.14 of the report of the appellants’ economic adviser referred to in paragraph 105 above, it is sufficient to state that the judgment under appeal makes no mention of that paragraph and that it contains no assertion that would establish distortion thereof.
131 Furthermore, in so far as, by their arguments set out in paragraphs 106 and 107 above, the appellants submit, in essence, that the evidence on which they rely shows that the load factor used by the Commission for its ex ante profitability analysis of the 2002 ASA was excessively low, they are seeking, in reality, to have the Court carry out, in that regard, a fresh assessment of the facts and the evidence, with the result that that part of the third part of the third ground of appeal is inadmissible, as per the case-law referred to in paragraph 109 above.
132 Consequently, the third part of this ground of appeal must be rejected as in part unfounded and in part inadmissible. The third ground of appeal must therefore be rejected.
133 By their fourth ground of appeal, which concerns paragraphs 418 to 421 and 427 to 429 of the judgment under appeal, the appellants complain that the General Court erred in law by concluding that the amount of aid to be recovered, which was calculated on the basis of ex ante data, should not be corrected on the basis of ex post data included in the file when the decision at issue was adopted.
134 They argue that the General Court found that, as a matter of principle, both the existence and the amount of the aid fall to be assessed in the light of the situation prevailing at the time the aid was granted. In that regard, the General Court rejected the arguments put forward by Ryanair and others that ex post data relating to revenues and costs should be taken into account, on the ground that that would have the effect of varying the amount of aid to be recovered according to fortuitous developments, such as the economic climate or the benefit possibly gained by the recipient of the aid through exploiting the advantage originally granted. In adjudicating in that manner, it did not address their arguments.
135 Ryanair and others did not refer to fortuitous elements, but to elements which were under the control of the grantor of the aid, namely its own calculation of its costs and revenues and merely maintained that it was necessary to correct the errors made by the grantor in its assessment of the cost and revenue variables which were under its own control. The Commission had indeed accepted that, as regards the fees for the marketing services actually paid to Ryanair or to LV and AMS, the amount of aid to be recovered could be corrected on the basis of evidence produced ex post by the Republic of Austria. However, it had refused to allow adjustments based on other ex post data relating to revenues and costs, from which it was apparent, however, that the costs had been overestimated.
136 The case-law on which the General Court relied, namely the judgments of 19 October 2005, Freistaat Thüringen v Commission (T‑318/00, EU:T:2005:363), and of 26 March 2020, Larko v Commission (C‑244/18 P, EU:C:2020:238), concerns the principle that the existence and the amount of aid fall to be assessed in the light of the situation prevailing at the time it was granted. However, those judgments do not prevent the Commission from correcting errors in the assessment of the situation prevailing at the time the aid was granted. Nor do they allow the Commission to tolerate an assessment of the quantum of aid based on erroneous data. In addition, those judgments concern guarantees, namely a type of aid measure where the distinction between the grant of aid, consisting of an intention to confer an advantage, and the payment of that aid, which generally concerns the subsequent phase of the transfer of resources, is less clear than for other types of aid measure.
137 Moreover, by misinterpreting those two judgments, the General Court and the Commission negate the possibility of erroneous forecasts by grantors of aid. It is, however, possible that a State entity that intended to grant aid of a certain amount may make a mistake in the assessment of the anticipated costs and revenues and that the amount of aid that it intended to grant was therefore not paid or was not paid in full.
138 According to the appellants, the Commission is required to ascertain, based on elements in the file when it takes its decision, whether the assessments made by the grantor of the aid of its own costs and revenues were incorrect. An aid recovery order based on overestimated costs or underestimated revenues would profit the grantor because it would be repaid amounts that are too high and thus derive a financial benefit from its own errors. Such repayment is also contrary to the purpose of the recovery of unlawful aid, namely to restore the situation which prevailed prior to the payment of the aid.
139 The Commission contends that this ground of appeal is unfounded.
140 Measures that, whatever their form, are likely directly or indirectly to favour certain undertakings, or fall to be regarded as an economic advantage that the recipient undertaking would not have obtained under normal market conditions are regarded as State aid (judgment of 6 March 2018, Commission v FIH Holding and FIH Erhvervsbank, C‑579/16 P, EU:C:2018:159, paragraph 44 and the case-law cited).
141 Thus, having regard to the objective of Article 107(1) TFEU of ensuring undistorted competition, the definition of ‘aid’, within the meaning of that provision, cannot cover a measure granted to an undertaking through State resources where it could have obtained the same advantage in circumstances which correspond to normal market conditions. The assessment of the conditions under which such an advantage was granted is therefore made, in principle, by applying the private operator principle (judgment of 6 March 2018, Commission v FIH Holding and FIH Erhvervsbank, C‑579/16 P, EU:C:2018:159, paragraph 45 and the case-law cited).
142 In order to assess whether the same measure would have been adopted in normal market conditions by a private operator, reference should be made to such an operator in a situation as close as possible to that of the State (judgment of 26 March 2020, Larko v Commission, C‑244/18 P, EU:C:2020:238, paragraph 28 and the case-law cited).
143 It is for the Commission, in that context, to carry out an overall assessment, taking into account all relevant evidence in the case enabling it to determine whether the recipient company would manifestly not have obtained comparable facilities from such a private operator (judgment of 26 March 2020, Larko v Commission, C‑244/18 P, EU:C:2020:238, paragraph 29 and the case-law cited).
144 In that regard, all information liable to have a significant influence on the decision-making process of a normally prudent and diligent private operator, in a situation as close as possible to that of the State, must be regarded as being relevant. Consequently, for the purpose of applying the private operator principle, the only relevant evidence is the information which was available, and the developments which were foreseeable, at the time when the decision to proceed with the grant of the measure at issue was taken (judgment of 26 March 2020, Larko v Commission, C‑244/18 P, EU:C:2020:238, paragraphs 30 and 31 and the case-law cited). That is especially so where the Commission is seeking to determine whether there has been State aid in relation to a measure which was not notified to it and which, at the time when the Commission carries out its examination, has already been implemented by the Member State concerned (see, to that effect, judgment of 5 June 2012, Commission v EDF, C‑124/10 P, EU:C:2012:318, paragraph 105).
145 Accordingly, factors arising after the measure at issue has been adopted cannot be taken into account for the purpose of applying the private operator principle (judgment of 26 March 2020, Larko v Commission, C‑244/18 P, EU:C:2020:238, paragraph 32 and the case-law cited).
146 As the Court of Justice has already held, it is apparent from the case-law referred to in paragraphs 142 to 145 above that a line of argument disputing the merits of the General Court’s appraisal relating to the assessment of the aid to be recovered, where it is based on the taking into account of events subsequent to the grant of the aid measure at issue, is ineffective (judgment of 26 March 2020, Larko v Commission, C‑244/18 P, EU:C:2020:238, paragraph 113).
147 By their fourth ground of appeal, the appellants submit, in essence, that the General Court erred in law in its assessment of the amount of aid to be recovered, as determined in the decision at issue. They claim, in that regard, that the General Court should have considered that the Commission, in order to determine that amount, was required to take into account ‘ex post data in the file when the decision at issue was adopted’, instead of relying on ‘ex ante evidence’, namely, as the General Court stated in paragraph 420 of the judgment under appeal, on developments foreseeable, for a private investor in a market economy, at the time the agreements at issue were concluded.
148 The General Court thus pointed out in that paragraph that in the decision at issue the Commission had determined the amount of aid to be recovered concerning the agreements at issue by taking into account ‘the negative part of the projected incremental flow (revenues less costs) at the time when the transaction was concluded’. The appellants claim, however, in essence, that the costs and revenues expected for Klagenfurt Airport at the time of conclusion ultimately proved to be different from those which were foreseeable at the time of that conclusion.
149 In addition, it is common ground, in the present case, that the aid measures at issue were granted by the conclusion of the respective agreements at issue.
150 It must therefore be held that, by this fourth ground of appeal, the appellants dispute the merits of the General Court’s appraisal of the assessment of the amount of aid to be recovered, basing their argument on events subsequent to the grant of the aid measures at issue. Consequently, this fourth ground of appeal must, in any event, be rejected as ineffective, in accordance with the case-law referred to in paragraph 146 above.
151 In that regard, the argument made by the appellants, in essence, that that case-law is not applicable to the present case, since it concerns only State aid in the form of a guarantee, cannot be accepted. As is apparent from that case-law, it is not the nature of the aid under consideration but the actual application of the principle of the private operator in a market economy - whose applicability is indeed not disputed in the present case - which requires that, for the purpose of identifying a possible advantage in terms of Article 107(1) TFEU, the only relevant evidence is the information which was available and the developments which were foreseeable at the time the decision to proceed with the grant of the measure at issue was taken.
152 Similarly, the appellants cannot derive any useful argument in support of the present ground of appeal from the fact that, for the 2002 MSA between DMG and AMS, the Commission stated, in recital 570 of the decision at issue, that the amount of aid to be recovered could be adjusted at a later stage, using evidence provided by the Republic of Austria. As the General Court stated in paragraph 425 of the judgment under appeal, it was apparent from the decision at issue that that Member State had claimed during the administrative procedure that that agreement had never entered into force, without having been able to provide, during the administrative procedure, a written document attesting to the accuracy of that statement.
153 Accordingly, the statement made by the Commission in recital 570 of the decision at issue was solely intended, as the General Court found in the aforementioned paragraph 425, to enable that Member State to adduce evidence to that effect and, if necessary, to exclude the aid that was due to be paid under that agreement from the amount of aid to be recovered, provided that it was established that - since the agreement had not entered into force - the aid contained therein had not been paid to the beneficiary, such that no economic advantage had been granted by means of that agreement and that, consequently, it was not necessary to recover any aid on the basis of it.
154 By contrast, by their arguments submitted to the General Court and, in essence, reiterated in the present ground of appeal, the appellants in reality do not claim that aid contained in one of the agreements at issue was not granted to them, but that the advantage contained in those agreements should have been reassessed at the time of recovery on the basis of the actual economic results of the agreements concerned for the parties to those agreements. That line of argument is, however, contrary to the case-law referred to in paragraphs 140 to 145 above, and, moreover, to the established case-law of the Court of Justice, to the effect that the recovery of unlawful aid entails the restitution of the advantage procured by the aid for the recipient in order to eliminate the distortion of competition caused by that advantage (see, to that effect, judgments of 21 December 2016, Commission v Aer Lingus and Ryanair Designated Activity, C‑164/15 P and C‑165/15 P, EU:C:2016:990, paragraphs 91 and 92 and the case-law cited, and of 5 March 2019, Eesti Pagar, C‑349/17, EU:C:2019:172, paragraph 131 and the case-law cited).
155 The fourth ground of appeal must therefore be rejected as ineffective.
156 Inasmuch as none of the grounds raised by the appellants in support of their appeal has been upheld, the appeal must be dismissed in its entirety.
157 In accordance with the Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to costs. Under Article 138(1) of those rules, applicable 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.
158 Since the Commission has applied for costs and the appellants have been unsuccessful, the latter must be ordered to pay the costs.