1 By its appeal, Ryanair DAC seeks to have set aside the judgment of the General Court of the European Union of 19 May 2021, Ryanair v Commission (Spain; Covid-19) (T‑628/20, ‘the judgment under appeal’, EU:T:2021:285), by which the General Court dismissed its action for annulment of Commission Decision C(2020) 5414 final of 31 July 2020 on State Aid SA.57659 (2020/N) - Spain - COVID-19 - Recapitalisation fund (OJ 2020 C 269, p. 8; ‘the decision at issue’). The background to the dispute and the decision at issue
2 The background to the dispute, as set out in the judgment under appeal, may be summarised as follows.
3 On 20 July 2020, in accordance with Article 108(3) TFEU, the Kingdom of Spain notified the European Commission of an aid measure in the form of a scheme (‘the aid scheme at issue’) aimed at establishing the solvency support fund for strategic undertakings (‘the Fund’), to support the solvency of viable undertakings, considered to be systemic or strategic for the Spanish economy, which were experiencing temporary difficulties due to the COVID-19 pandemic.
4 The Fund was intended to provide financing in the form of the purchase of financial instruments and securities issued by non-financial undertakings established in Spain, without limitation as to size or economic sector. The Fund was managed by a Management Board which had to take decisions on aid applications and set out the conditions for the grant of public financial support to the beneficiaries. The Sociedad Española de Participaciones Industriales (Spanish industrial holdings company; ‘SEPI’), a public holding company which manages the shareholdings of the Spanish State, was responsible, inter alia, for the prior assessment of aid applications, the use of funds and the registration of securities acquired by the State. That management board submitted to the Spanish Council of Ministers for approval decisions on Agreements for granting public financial support. The Management Board was an interministerial committee chaired by the President of SEPI and is also composed of representatives of the Ministries of the Economy, Finance, Industry and Energy.
5 The budget for the aid scheme at issue was fixed at EUR 10 billion, financed by the State budget. The Fund’s support interventions were, in principle, to exceed EUR 25 million per beneficiary. However, aid in excess of EUR 250 million per beneficiary had to be notified individually to the Commission. Temporary support operations financed by the Fund were granted until 30 June 2021.
6 In order to benefit from the aid scheme at issue, undertakings had to fulfil a number of cumulative eligibility criteria, which included, in essence: - being non-financial undertakings which are established in and have their principal places of business in Spain; - having systemic or strategic importance because they belong to a particular sector of activity, as a result of their links with public health and safety or their influence over the whole economy, their innovation, the essential nature of the services which they provide or their role in achieving the medium-term objectives of ecological transition, digitalisation, increased productivity and human capital; - being at risk of ceasing operations or having serious difficulties remaining in business in the absence of temporary public support; - demonstrating that a forced cessation of their activities would have a high negative impact on economic activity or employment at national or regional level; - establishing medium- to long-term viability as demonstrated in the application by a viability plan to overcome the crisis situation and describing the planned use of the public support; - presenting a planned schedule of reimbursement of the State support through the Fund, and - not being an undertaking in difficulty on 31 December 2019.
7 In addition, undertakings wishing to benefit from the aid scheme at issue had to demonstrate, on the basis of adequate evidence, that sources of private funding from banks and financial markets, were either not available or were accessible at costs that would prevent them from becoming viable.
8 On 31 July 2020, the Commission adopted the decision at issue, by which it concluded that the aid scheme at issue constitutes State aid within the meaning of Article 107(1) TFEU, and having assessed its compatibility with the internal market in the light of its Communication C(2020) 1863 of 19 March 2020 entitled ‘Temporary Framework for State aid measures to support the economy in the current COVID‑19 outbreak’ (OJ 2020 C 91, p. 1), as amended by its Communications C(2020) 2215 of 3 April 2020 (OJ 2020 C 112 I, p. 1), 2020/C 164/03 of 13 May 2020 (OJ 2020 C 164, p. 3), and 2020/C 218/03 of 29 June 2020 (OJ 2020 C 218, p. 3) (‘the “Temporary Framework” communication’), it decided that that aid scheme was compatible with the internal market under Article 107(3)(b) TFEU and did not, therefore, raise any objections to it. The procedure before the General Court and the judgment under appeal
9 By application lodged at the Registry of the General Court on 16 October 2020, Ryanair brought an action for annulment of the decision at issue.
10 In support of its action, Ryanair put forward five pleas in law, alleging (i) breach of the principles of non-discrimination on grounds of nationality, freedom to provide services and freedom of establishment; (ii) infringement of the obligation to weigh the beneficial effects of the aid against its adverse effects on trading conditions and on the maintenance of undistorted competition; (iii) the incorrect classification of the aid scheme at issue as an ‘aid scheme’; (iv) infringement of Ryanair’s procedural rights on the ground that the Commission had refused to initiate the formal investigation procedure despite the existence of serious doubts as to the compatibility of the notified measure with the internal market; and, (v) infringement of the obligation to state reasons.
11 By the judgment under appeal, the General Court rejected as unfounded the first to third and fifth pleas in law. As regards the fourth plea, it considered, inter alia, that that plea reproduced the arguments relied on in the first to third pleas, with the result that, in the light of the reasons which led it to reject those pleas, it was not necessary to examine the merits of that fourth plea. Consequently, the General Court dismissed the action in its entirety, without ruling on the admissibility of that action. Forms of order sought by the parties to the appeal
12 By its appeal, Ryanair claims that the Court should: - set aside the judgment under appeal; - annul the decision at issue; - order the Commission and the interveners at first instance to pay the costs or, in the alternative; - set aside the judgment under appeal, and - refer the case back to the General Court and reserve the costs.
13 The Commission contends that the Court should: - dismiss the appeal and - order the appellant to pay the costs.
14 The Kingdom of Spain contends that the Court should: - declare the appeal inadmissible; - in the alternative, dismiss the appeal as unfounded, and - in any event, order the appellant to pay the costs. The appeal
15 Ryanair puts forward six grounds in support of its appeal. The first ground of appeal alleges errors of law, distortion of the facts and a failure to state reasons by the General Court in its examination of the first plea in the action at first instance in so far as it alleged breach of the principle of non-discrimination. The second ground of appeal alleges an error of law and a manifest distortion of the facts by the General Court in its examination of the first plea in that action in so far as it alleged infringement of the freedom to provide services and the freedom of establishment. The third ground of appeal alleges an error of law and a manifest distortion of the facts by the General Court in not applying the balancing test of the beneficial and adverse effects of the aid scheme at issue. The fourth ground of appeal alleges an error of law and a manifest error of assessment in that the General Court classified that scheme as an ‘aid scheme’. The fifth ground of appeal alleges an error of law and a manifest distortion of the facts by the General Court in deciding not to examine the merits of the fourth plea in that action. The sixth ground of appeal alleges an error of law and a manifest distortion of the facts by the General Court in holding that the Commission had not infringed its obligation to state reasons under the second paragraph of Article 296 TFEU. The first ground of appeal Arguments of the parties
16 By its first ground of appeal, which comprises two parts and relates to paragraphs 24 to 52 of the judgment under appeal, Ryanair submits that the General Court erred in law and manifestly distorted the facts in finding that the aid scheme at issue did not breach the principle of non-discrimination on grounds of nationality.
17 By the first part of its first ground of appeal, Ryanair argues that the General Court failed properly to apply the principle of prohibition of discrimination on grounds of nationality, which is an essential principle of the EU legal order. Although the General Court acknowledged, in paragraph 26 of the judgment under appeal, that the difference in treatment established by the aid scheme at issue could be equated with discrimination in the light of one of the eligibility criteria, namely that relating to the establishment of the beneficiaries in Spain and the location of their principal places of business in the territory of that Member State, it wrongly held that such discrimination had to be assessed only in the light of Article 107(3)(b) TFEU, on the ground that that provision was a special provision within the meaning of Article 18 TFEU.
18 Furthermore, the appellant submits that the General Court should have examined whether such discrimination was justified on grounds of public policy, public security or public health, within the meaning of Article 52 TFEU, or, in any event, whether it was based on objective considerations, irrespective of the nationality of the persons concerned.
19 By the second part of its first ground of appeal, Ryanair submits that the General Court erred in law and manifestly distorted the facts, in addition to failing to state reasons, in holding that the eligibility criterion referred to in paragraph 17 of the present judgment was appropriate, necessary and proportionate.
20 In that regard, it criticises the General Court, in the first place, for having, in particular in paragraph 27 of the judgment under appeal, erred in law and manifestly distorted the facts in finding that that eligibility criterion was appropriate and necessary.
21 First, the overall justification provided by the General Court on that point is legally flawed, since it did not appear in the decision at issue.
22 Second, the justification put forward by the General Court regarding the nature of the aid scheme at issue is based on an error of law and a misreading of the ‘Temporary Framework’ communication. In particular, the fact that the aid concerned takes the form of a recapitalisation as defined in Section 3.11 of that communication cannot be a valid justification for the requirement that the beneficiaries be established in Spain.
23 Third, the General Court manifestly distorted the facts and erred in law by equating a stable presence on Spanish territory and a durable link with the Spanish economy with having a principal place of business in Spain. To that end, the General Court held, in particular, in paragraph 36 of the judgment under appeal, that requiring the recipient undertakings to have their principal place of business in Spain ensures ‘a certain stability of their presence and their durable links to the Spanish economy’. However, that causal link is entirely speculative, has not been demonstrated and is manifestly incorrect.
24 Fourth, the General Court erred in law and failed to state reasons when, in paragraph 37 of the judgment under appeal, it regarded airlines which do not satisfy the requirement that the beneficiaries be established in Spain as being ‘mere service providers’, whose activities in Spain may ‘cease at very short notice, if not immediately’.
25 Fifth, in paragraph 35 of the judgment under appeal, the General Court did not provide any reasoning and erred in law in justifying that requirement by the need ‘to monitor, on a continuous and effective basis, the manner in which aid is used, compliance with the governance clauses and all other measures imposed to limit distortions of competition’ and ‘to intervene, if necessary, in order to ensure compliance with the conditions and commitments surrounding the grant of the public financial support in question’. According to Ryanair, that explanation was not included in the decision at issue. Furthermore, there is no connection between the place of establishment of an EU-based air carrier and a Member State’s ability to monitor the manner in which that aid is used by that carrier.
26 Sixth, the General Court erred in law in holding, in paragraph 37 of the judgment under appeal, that ‘any public financial support intended to support [the] activities [of undertakings which are established in Spain but which have their principal places of business outside the territory of that State] is less likely to contribute to remedying the serious disturbance in the economy of that Member State’. By that conclusion, the General Court equated an airline’s link with the territory of a Member State with its link with the whole of the economy of the Member State concerned and, even more incorrectly, its ability to remedy a serious disturbance in that economy.
27 Seventh, the General Court contradicted itself and erred in law in stating, in paragraphs 38 to 40 of the judgment under appeal, that the requirement that the beneficiaries be established in Spain was justified by the other eligibility criteria for the aid scheme at issue. On the contrary, the existence of a specific eligibility criterion linked to the systemic and strategic importance of the beneficiaries or a condition concerning the submission of a viability plan or a projected repayment schedule for the aid makes that requirement entirely superfluous and even counter-productive.
28 In the second place, Ryanair submits that the General Court’s assessment, in paragraphs 44 to 52 of the judgment under appeal, that the aid scheme at issue was proportionate to the objective pursued by it is vitiated by errors of law and a distortion of the facts.
29 In that regard, first, the General Court failed to assess the competitive effect of that aid scheme when examining its proportionality. Such an assessment is essential in order to determine whether that aid scheme goes ‘beyond what is necessary’ to attain the objective which it pursues.
30 Second, according to Ryanair, the General Court’s statement, in paragraph 46 of the judgment under appeal, that the need for a stable and durable link between the beneficiaries of the aid and the Spanish economy, which underlies the aid scheme at issue, ‘would be lacking or at least weakened’ if the Kingdom of Spain had adopted an eligibility criterion other than that referred to in paragraph 17 of the present judgment is incorrect in law, is based on a manifest distortion of the facts and contradicts its own description of the other eligibility criteria for the aid scheme at issue, in particular the criterion linked to the systemic and strategic importance of the beneficiaries.
31 Third, in paragraphs 47 and 48 of the judgment under appeal, the General Court wrongly rejected as irrelevant the fact that the appellant is the largest airline in Spain, holding approximately 20% of the market in that Member State. Ryanair’s exit from that market would undoubtedly have a greater impact on the ‘overall state’ of the Spanish economy than that of other airlines benefiting from the aid scheme at issue, which contribute less to the Spanish economy.
32 Fourth, according to Ryanair, in paragraph 49 of the judgment under appeal, the General Court wrongly refused to examine another aid scenario on the ground that the Commission could not be entrusted with ‘[examining] every alternative measure possible’. In that regard, the General Court wrongly relied on its judgment of 6 May 2019, Scor v Commission (T‑135/17, EU:T:2019:287), from which it is apparent only that the Commission was not required to examine all alternative measures in the statement of reasons for its decision.
33 According to the Commission and the Kingdom of Spain, the first ground of appeal must be rejected as inadmissible and, in any event, as unfounded. Findings of the Court
34 It should be recalled, as a preliminary point, that, according to the Court’s settled case-law, classification of a national measure as ‘State aid’, within the meaning of Article 107(1) TFEU, requires all the following conditions to be fulfilled. First, there must be an intervention by the State or through State resources. Second, that intervention must be liable to affect trade between Member States. Third, it must confer a selective advantage on the recipient. Fourth, it must distort or threaten to distort competition (judgment of 28 June 2018, Germany v Commission , C‑208/16 P, EU:C:2018:506, paragraph 79 and the case-law cited).
35 It is therefore with regard to measures having such characteristics and such effects, in so far as they are liable to distort competition and affect trade between the Member States, that Article 107(1) TFEU lays down the principle that State aid is incompatible with the internal market.
36 In particular, the requirement of selectivity arising from Article 107(1) TFEU presupposes that the Commission will establish that the economic advantage, understood in the broad sense, arising directly or indirectly from a particular measure specifically benefits one or more undertakings. It falls to the Commission to show, in particular, that the measure in question creates differences between undertakings which, with regard to the objective of the measure, are in a comparable situation. It is necessary therefore that the advantage be granted selectively and that it be liable to place certain undertakings in a more favourable situation than that of others (judgment of 28 September 2023, Ryanair v Commission , C‑320/21 P, EU:C:2023:712, paragraph 103 and the case-law cited).
37 However, Article 107(2) and (3) TFEU provides for certain derogations from the principle that State aid is incompatible with the internal market, referred to in paragraph 35 of the present judgment, such as that set out in Article 107(3)(b) TFEU, concerning aid ‘to remedy a serious disturbance in the economy of a Member State’. Accordingly, State aid granted for the purposes of, and in accordance with, the conditions laid down by those derogating provisions, notwithstanding the fact that it has the characteristics and produces the effects referred to in paragraph 34 of the present judgment, is compatible with, or is capable of being declared compatible with, the internal market.
38 It follows that, unless those derogating provisions are to be deprived of all practical effect, State aid which is granted in accordance with those conditions, that is to say, for the purposes of an objective recognised therein and within the limits of what is necessary and proportionate to the achievement of that objective, cannot be held to be incompatible with the internal market having regard solely to the characteristics or solely to the effects, referred to in paragraph 34 of the present judgment, which are inherent in any State aid, that is to say, inter alia, for reasons relating to whether the aid is selective or distorts competition (judgment of 28 September 2023, Ryanair v Commission , C‑320/21 P, EU:C:2023:712, paragraph 107 and the case-law cited).
39 That said, as regards the first part of its first ground of appeal, by which Ryanair claims that the General Court erred in law in not applying, in paragraph 27 of the judgment under appeal, the principle of non-discrimination on grounds of nationality laid down in Article 18 TFEU, but examined the aid scheme at issue in the light of Article 107(3)(b) TFEU, it should be recalled that it is clear from the case-law of the Court of Justice that the procedure provided for in Article 108 TFEU must never produce a result that is contrary to the specific provisions of the FEU Treaty. Accordingly, State aid which, as such or by reason of some modalities thereof, contravenes provisions or general principles of EU law cannot be declared compatible with the internal market (judgment of 28 September 2023, Ryanair v Commission , C‑320/21 P, EU:C:2023:712, paragraph 109 and the case-law cited).
40 However, as regards Article 18 TFEU specifically, it is settled case-law that that article is intended to apply independently only to situations governed by EU law in respect of which the TFEU lays down no specific prohibition of discrimination (judgment of 28 September 2023, Ryanair v Commission , C‑320/21 P, EU:C:2023:712, paragraph 110 and the case-law cited).
41 Since, as has been recalled in paragraph 37 of the present judgment, Article 107(2) and (3) TFEU provides for derogations from the principle, referred to in paragraph 1 of that article, that State aid is incompatible with the internal market, and thus allows, in particular, differences in treatment between undertakings, subject to fulfilment of the requirements laid down by those derogations, those derogations must be regarded as ‘special provisions’ provided for in the Treaties, within the meaning of the first paragraph of Article 18 TFEU (judgment of 28 September 2023, Ryanair v Commission , C‑320/21 P, EU:C:2023:712, paragraph 111).
42 It follows that the General Court did not err in law in finding, in paragraph 27 of the judgment under appeal, that Article 107(3)(b) TFEU constituted such a special provision and that it was necessary only to examine whether the difference in treatment brought about by the aid scheme at issue was permitted under that provision.
43 Accordingly, the differences in treatment entailed by the aid scheme at issue likewise do not have to be justified on the grounds set out in Article 52 TFEU, contrary to what Ryanair maintains.
44 In the light of the foregoing, the first part of the first ground of appeal must be rejected as unfounded.
45 By the second part of that ground of appeal, Ryanair alleges, in essence, an error of law and a manifest distortion of the facts in so far as the General Court held, in paragraphs 35 to 52 of the judgment under appeal, that the aid scheme at issue was proportionate.
46 By the first complaint of that second part, Ryanair complains, more specifically, that the General Court erred in law and distorted the facts on the ground that it wrongly held, in particular in paragraphs 27 and 36 to 40 of the judgment under appeal, that the criterion of eligibility for that aid scheme relating to the establishment of beneficiaries in Spain and the location of their principal places of business in the territory of that Member State was appropriate and necessary.
47 In that regard, in so far as Ryanair claims, by its first argument, that, by the ‘overall justification’ concerning that eligibility criterion, the General Court, in particular in paragraph 27 of the judgment under appeal, put forward a justification which did not appear in the decision at issue, with the result that it substituted its own grounds for those relied on by the Commission in support of that decision, it is true that, according to the case-law of the Court of Justice, that, in reviewing the legality of acts under Article 263 TFEU, the Court of Justice and the General Court cannot, under any circumstances, substitute their own reasoning for that of the author of the contested act (judgment of 28 September 2023, Ryanair v Commission , C‑320/21 P, EU:C:2023:712, paragraph 117 and the case-law cited).
48 However, it must be noted that, in recital 10 of the decision at issue, the Commission referred to the establishment criterion as an eligibility criterion and that, in paragraphs 26 and 27 of the judgment under appeal, the General Court merely referred to that criterion in its response to the appellant’s line of argument alleging that the aid scheme at issue was discriminatory and disproportionate, in order to identify the difference in treatment that that aid scheme would bring about, without, however, substituting the grounds of that decision. Moreover, Ryanair has failed to specify the reasoning by which the General Court thus replaced the reasoning of the decision at issue.
49 The first argument of the first complaint of the second part of the first ground of appeal must therefore be rejected.
50 In so far as, by the second argument of that first complaint, Ryanair submits, in essence, that the fact that the aid scheme at issue takes the form of a recapitalisation, as defined in Section 3.11 of the ‘Temporary Framework’ communication, cannot validly justify the requirement that the beneficiaries of that aid scheme be established in Spain, it must be held that it is not apparent from the judgment under appeal that the General Court justified that requirement solely on the basis of the form of the aid scheme at issue and, in addition, Section 3.11 does not preclude such a requirement as an eligibility criterion, even if that requirement is not expressly laid down therein.
51 Consequently, that second argument must be rejected.
52 By the third to sixth arguments of the first complaint of the second part of the first ground of appeal, Ryanair disputes certain considerations set out in paragraphs 35 to 37 of the judgment under appeal and referred to in paragraphs 23 to 26 of the present judgment, which the General Court set out in order to hold, in particular in paragraph 43 of the judgment under appeal, in essence, that, by limiting the benefit of the aid scheme at issue solely to undertakings established in Spain and which have their principal places of business in the territory of that Member State, because of the stable and reciprocal links between them and its economy, that aid scheme was appropriate and necessary in order to attain the objective of remedying the serious disturbance in the economy of that Member State.
53 In that regard, in so far as the appellant complains that the General Court distorted the facts submitted to it, it should be pointed out that, in accordance with the settled case-law of the Court of Justice, it follows from the second subparagraph of Article 256(1) TFEU and from the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that the General Court has exclusive jurisdiction, first, to establish the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and, second, to assess those facts (judgment of 25 June 2020, SatCen v KF , C‑14/19 P, EU:C:2020:492, paragraph 103 and the case-law cited).
54 It follows that the appraisal of the facts by the General Court does not 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 25 June 2020, SatCen v KF , C‑14/19 P, EU:C:2020:492, paragraph 104 and the case-law cited).
55 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, according to the settled case-law of the Court of Justice, that distortion must be obvious from the documents in the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (judgment of 25 June 2020, SatCen v KF , C‑14/19 P, EU:C:2020:492, paragraph 105 and the case-law cited).
56 In the present case, it must be held that, in support of the third to sixth arguments of the first complaint of the second part of the first ground of appeal, Ryanair does not specify the evidence that the General Court distorted by carrying out the assessments referred to in those arguments.
57 Moreover, in so far as the appellant alleges errors of law vitiating those assessments, it must be held that it disputes the merits of those assessments without, however, demonstrating to the requisite standard that the General Court erred in law.
58 In any event, the Court has already had occasion to recognise that an eligibility criterion linked to the establishment of the undertakings in receipt of aid, intended to ensure a permanent link between the economy of the Member State concerned and those undertakings, could be appropriate to achieve the objective of remedying the serious disturbance in the economy of that Member State (see, to that effect, judgment of 23 November 2023, Ryanair v Commission , C‑209/21 P, EU:C:2023:905, paragraphs 50 and 51).
59 In those circumstances, the third to sixth arguments of the first complaint of the second part of the first ground of appeal must be rejected as unfounded.
60 In so far as the seventh argument of that complaint is directed against paragraphs 38 to 40 of the judgment under appeal, it is sufficient to note that, instead of justifying the criterion relating to establishment by the other eligibility criteria for the aid scheme at issue, the General Court, in those paragraphs, did not contradict its finding as regards the necessity of that criterion, ruling only on those other criteria in order to conclude, in essence, in paragraph 42 of the judgment under appeal, that, by the eligibility criteria for that aid scheme, taken as a whole, the Kingdom of Spain had sought to satisfy itself that there was a stable and durable link between the beneficiaries of that aid scheme and its economy.
61 It follows from the foregoing that that seventh argument and, consequently, the first complaint of the second part of the first ground of appeal must also be rejected in its entirety.
62 By the second complaint of the second part of that ground of appeal, Ryanair alleges, in essence, that the General Court erred in law and manifestly distorted the facts in so far as it held, in paragraphs 44 to 52 of the judgment under appeal, that the aid scheme at issue was proportionate to the objective pursued by it.
63 In that regard, in so far as the appellant disputes, by the second and third arguments of that second complaint, some of the General Court’s assertions in, inter alia, paragraphs 46 to 48 of the judgment under appeal and set out in paragraphs 30 and 31 of the present judgment, it must be held, first, that the appellant thus seeks, in reality, to call into question the definitive assessment of the facts and evidence made by the General Court in holding, in essence, in paragraph 52 of the judgment under appeal, that the Commission had not made an error of assessment as regards the proportionality of the aid scheme at issue, in particular as regards the eligibility criteria for that scheme.
64 Second, although, in the context of the second argument of that second complaint, the appellant claimed that the General Court distorted the facts by stating, in paragraph 46 of the judgment under appeal, that the need for a stable and durable link between the beneficiaries of the aid scheme at issue and the Spanish economy, which underlies that aid scheme, ‘would be lacking or at least weakened’ if the Kingdom of Spain had adopted an eligibility criterion other than that referred to in paragraph 17 of the present judgment, it must be held that the appellant has not put forward any arguments capable of demonstrating that distortion, in accordance with the case-law referred to in paragraph 55 of the present judgment.
65 Consequently, the second and third arguments of the second complaint of the second part of the first ground of appeal must be rejected.
66 As regards the fourth argument of that second complaint, directed against paragraph 49 of the judgment under appeal, it should be noted that it was only for the sake of completeness that the General Court held, in paragraph 49, that the Commission was not required to rule on all the alternative measures to the aid scheme at issue. The General Court held, in paragraph 50 of that judgment, in essence, that, in any event, the eligibility criterion advocated by the appellant, based on the market shares of the undertakings concerned, does not take sufficient account of the objective pursued by that aid scheme, which was intended to remedy the serious disturbance in the Spanish economy, taken as a whole, in its diversity and with a view to sustainable economic development, the Spanish legislature having relied on qualitative rather than quantitative eligibility criteria.
67 Since that fourth argument must therefore be rejected as ineffective, the second complaint of the second part of the first ground of appeal must be rejected.
68 In the light of the foregoing, the second part of the first ground of appeal must be rejected and, consequently, that ground of appeal must be rejected in its entirety, subject to the examination of the first argument of the second complaint of that second part, referred to in paragraph 29 of the present judgment, which it is appropriate to examine together with the arguments put forward in the context of the third ground of appeal in paragraphs 92 to 97 of the present judgment. The second ground of appeal Arguments of the parties
69 By its second ground of appeal, Ryanair submits that, in paragraphs 56 to 63 of the judgment under appeal, the General Court erred in law and manifestly distorted the facts by rejecting the last two parts of the first plea in law in its action at first instance, by which it alleged breach of the principles of the freedom to provide services and the freedom of establishment.
70 By the first part of its second ground of appeal, Ryanair argues that, by stating in paragraph 61 of the judgment under appeal that it had not demonstrated how its exclusion from the aid scheme at issue was ‘such as to deter it from establishing itself in Spain or from providing services to and from Spain’, the General Court chose an incorrect test for determining whether that aid scheme impeded or rendered less attractive the exercise of the freedom to provide services or the freedom of establishment. According to Ryanair, in accordance with the case-law, the General Court should rather have examined whether that aid scheme was such as to deter ‘any of the operators [interested in it]’, namely, in the present case, airlines established in Member States other than the Kingdom of Spain, from establishing themselves or providing services in that Member State.
71 By the second part of that ground of appeal, Ryanair submits that, in paragraph 61 of the judgment under appeal, the General Court held, in a contradictory and incorrect manner, that Ryanair had not established how its exclusion from the aid scheme at issue was such as to deter it from establishing itself in Spain and providing services to and from Spain. The fact that airlines are excluded from an advantage reserved for airlines that have their principal place of business in Spain is sufficient to demonstrate that the exercise of the freedom to provide services and the freedom of establishment is discouraged, without any further demonstration being required. Furthermore, even accepting the stricter standard sought by the General Court, Ryanair showed that the restrictive effects of that aid scheme on its right to free provision of services and freedom of establishment went beyond those triggering the prohibition laid down in Article 107(1) TFEU.
72 The General Court also distorted the evidence by failing to examine the important evidence provided by the appellant in relation to those restrictive effects.
73 By the third part of the second ground of appeal, Ryanair submits that, contrary to what the General Court held in paragraph 61 of the judgment under appeal, Ryanair demonstrated that the alleged restriction on the freedom to provide services and the freedom of establishment was not justified. The General Court erred in law in holding that that restriction was justified where it complied with Article 107 TFEU. In reality, the General Court, and before it the Commission, should have examined whether that restriction was justified by an overriding reason in the public interest, that is to say, that it was non-discriminatory, necessary and proportionate to the public interest objective pursued. The appellant submits that it has identified elements of fact and of law demonstrating that the aid scheme at issue had restrictive effects on the freedom to provide services and the freedom of establishment which were neither necessary, appropriate nor proportionate in the light of the objective pursued by that aid scheme, namely to remedy a serious disturbance in the Spanish economy. Moreover, in that context, it identified an alternative eligibility criterion for that aid scheme, based on market shares, which would have been less detrimental to the freedom to provide services and the freedom of establishment. By ‘denying this reality’, the General Court erred in law and manifestly distorted the facts.
74 The Commission and the Kingdom of Spain contend that the second ground of appeal must be rejected as inadmissible and, in any event, as unfounded. Findings of the Court
75 In so far as, by the first part of its second ground of appeal, Ryanair claims that, in the first sentence of paragraph 61 of the judgment under appeal, the General Court applied an incorrect test for assessing whether the aid scheme at issue impeded or rendered less attractive the exercise of the freedom to provide services and the freedom of establishment, by referring to the appellant’s situation, it must be held that that first part of the second ground of appeal is based on an inaccurate reading of that paragraph. Without it being necessary to examine whether, as Ryanair submits, the General Court erred in law as regards the extent of the burden of proof which it claims to have borne, it is apparent from the second sentence of that paragraph, which refers to the examination of the first two parts of the first plea in the action at first instance, carried out in paragraphs 24 to 53 of the judgment under appeal, in which the General Court analysed the proportionality of the aid scheme at issue in the light of the situation of all the airlines present in Spain, that the General Court referred to the existence of restrictive effects in general, and thus to effects that would arise not exclusively with regard to Ryanair but to all airlines operating or wishing to operate in Spain.
76 Accordingly, the first part of the second ground of appeal must be rejected as unfounded.
77 By the second and third parts of its second ground of appeal, which it is appropriate to examine together, Ryanair submits, in essence, that paragraph 61 of the judgment under appeal is vitiated by errors of law, in that the General Court examined in that paragraph the fact that the aid scheme at issue benefited only airlines that have their principal place of business in Spain solely in the light of Article 107 TFEU, instead of ascertaining whether that aid scheme was justified in the light of the grounds referred to in the provisions of the FEU Treaty on the freedom to provide services or the freedom of establishment. Ryanair, however, submitted to the General Court matters of fact and of law demonstrating an infringement of those provisions.
78 In that regard, as was pointed out in paragraph 39 of the present judgment, the procedure under Article 108 TFEU must never produce a result which is contrary to the specific provisions of the FEU Treaty. Accordingly, State aid which, as such or by reason of some modalities thereof, contravenes provisions or general principles of EU law cannot be declared compatible with the internal market.
79 However, first, the restrictive effects which an aid measure has on the freedom to provide services or the freedom of establishment still do not constitute a restriction prohibited by the Treaty, since it may be inherent in the very nature of State aid, such as its selective nature (judgment of 28 September 2023, Ryanair v Commission , C‑320/21 P, EU:C:2023:712, paragraph 132).
80 Furthermore, it is clear from the case-law of the Court of Justice that, where the modalities of an aid measure are so indissolubly linked to the object of the aid that it is impossible to evaluate them separately, their effect on the compatibility or incompatibility of the aid viewed as a whole with the internal market must therefore of necessity be determined by means of the procedure prescribed in Article 108 TFEU (judgments of 22 March 1977, Iannelli & Volpi , 74/76, EU:C:1977:51, paragraph 14, and of 28 September 2023, Ryanair v Commission , C‑320/21 P, EU:C:2023:712, paragraph 133).
81 In the present case, the requirement relating to the principal place of business in Spain was not in itself the objective of the aid scheme at issue, but an eligibility criterion for that aid scheme. However, that criterion was, as such, indissolubly linked to the object of that aid scheme, which consisted of remedying the serious disturbance in the Spanish economy caused by the COVID-19 pandemic. It follows that the effect of that criterion on the internal market cannot be examined separately from the effect of the compatibility of that aid scheme as a whole with the internal market by means of the procedure prescribed in Article 108 TFEU.
82 It follows from the reasons set out above and from the case-law referred to in paragraph 38 of the present judgment that the General Court did not err in law by holding, in paragraph 61 of the judgment under appeal, in essence that, in order to establish that the aid scheme at issue constituted, because the aid in question benefited only airlines that have their principal place of business in Spain and not, inter alia, Ryanair, an obstacle to the freedom to provide services, the appellant should have demonstrated, in the present case, that that aid scheme produced restrictive effects which went beyond those inherent in State aid granted in accordance with the requirements laid down in Article 107(3)(b) TFEU (see, by analogy, judgments of 28 September 2023, Ryanair v Commission , C‑320/21 P, EU:C:2023:712, paragraph 135, and of 23 November 2023, Ryanair v Commission , C‑209/21 P, EU:C:2023:905, paragraph 75).
83 The line of argument put forward by Ryanair in support of the second and third parts of the second ground of appeal seeks, as a whole, to criticise, first, the aid scheme at issue in so far as only airlines that have their principal place of business in Spain were eligible for that aid scheme and, second, the restrictive effects of that eligibility criterion on the freedom to provide services and the freedom of establishment, even though such effects are inherent in the selective nature of that aid scheme.
84 In addition, as regards the evidence which it submitted before the General Court, it must be held that Ryanair has not put forward any argument capable of demonstrating that the General Court distorted that evidence.
85 Accordingly, the second and third parts of the second ground of appeal must be rejected as unfounded.
86 It follows from the foregoing that the second ground of appeal must be rejected. The third ground of appeal Arguments of the parties
87 By its third ground of appeal, Ryanair complains that the General Court erred in law and distorted the facts by holding, in paragraphs 68 and 69 of the judgment under appeal, that the Commission is not required under Article 107(3)(b) TFEU to weigh the beneficial effects of aid against its adverse effects on trading conditions and the maintenance of undistorted competition when examining the compatibility of that aid.
88 In that regard, Ryanair submits that the General Court adopted an excessively broad interpretation of paragraphs 20 and 39 of the judgment of 22 September 2020, Austria v Commission (C‑594/18 P, EU:C:2020:742) in order to hold that the condition that the aid must not unduly affect trading conditions applies to the aid referred to in Article 107(3)(c) TFEU but not to that referred to in paragraph 3(b) of that article. First, Article 107(3)(c) TFEU, which the Court of Justice applied in that judgment, refers only to the effect of aid on trading conditions, and not to the protection of undistorted competition which, as the General Court admitted, must also be taken into account in the weighing up of the beneficial and adverse effects of aid. Second, in that case, the Court of Justice did not examine Article 107(3)(b) TFEU in depth. Third, the obligation to weigh the beneficial effects of aid against its adverse effects on trading conditions and the maintenance of undistorted competition is also apparent from principles which apply generally to all aid under Article 107(3) TFEU.
89 It is precisely for that reason that both the General Court, in paragraphs 138 to 143 of the judgment of 6 July 1995, AITEC and Others v Commission (T‑447/93 to T‑449/93, EU:T:1995:130), and the Court of Justice, in paragraphs 54, 57 and 58 of the judgment of 19 July 2016, Kotnik and Others (C‑526/14, EU:C:2016:570), considered that the Commission was entitled to make the grant of aid under Article 107(3)(b) TFEU subject to compliance with certain conditions. That would not be possible without such a balancing exercise.
90 Moreover, contrary to what the General Court held in paragraph 67 of the judgment under appeal, the existence of a serious disturbance in the economy of a Member State should not give rise to a presumption that the beneficial effects of aid outweigh its adverse effects, but should, on the contrary, give rise to particular vigilance in the weighing up of those effects, for the purposes of assessing the compatibility of that aid.
91 The Commission and the Kingdom of Spain contend that the third ground of appeal must be rejected as unfounded. Findings of the Court
92 It should be noted that, in paragraph 20 of the judgment of 22 September 2020, Austria v Commission (C‑594/18 P, EU:C:2020:742), the Court highlighted the differences between the wording of Article 107(3)(b) TFEU and Article 107(3)(c) TFEU, and noted, in particular, that only the first of those provisions laid down the condition that the aid at issue must pursue an objective of common interest. The Court concluded from this that Article 107(3)(c) TFEU did not make the compatibility with the internal market of aid granted under that provision subject to such a condition.
93 For a similar reason based on a comparison of the wording of the provisions concerned, as the General Court held, in essence, in paragraph 66 of the judgment under appeal, in the absence of any reference in Article 107(3)(b) TFEU to demonstrating that there was no effect on trading conditions to an extent contrary to the common interest and, therefore, to the need to weigh up the beneficial effects and the adverse effects of the aid concerned, that provision cannot be interpreted as requiring the Commission to carry out such a balancing for the purposes of assessing the compatibility with the internal market of the aid referred to in that provision, unlike Article 107(3)(c) TFEU (judgment of 23 November 2023, Ryanair v Commission , C‑209/21 P, EU:C:2023:905, paragraph 85).
94 That difference in the assessment of the compatibility of the aid referred to in Article 107(3)(b) TFEU and that referred to in Article 107(3)(c) TFEU can be explained by the particular nature of the aid referred to in Article 107(3)(b) TFEU, which pursues objectives of an exceptional nature and of particular weight consisting either in promoting the execution of an important project of common European interest or in remedying a serious disturbance in the economy of a Member State. Aid measures which contribute to the attainment of one of those objectives, provided that they are necessary and proportionate, may therefore be considered to ensure a fair balance between their beneficial effects and their adverse effects on the internal market and are therefore in the common interest of the European Union (judgment of 23 November 2023, Ryanair v Commission , C‑209/21 P, EU:C:2023:905, paragraph 86).
95 Therefore, since Article 107(3)(b) TFEU reflects the balancing of the effects of State aid referred to in that provision carried out by the authors of the FEU Treaty, the Commission is not required to carry out a new balancing of those effects when it examines the compatibility of aid which is envisaged to be granted on the basis of that provision (judgment of 23 November 2023, Ryanair v Commission , C‑209/21 P, EU:C:2023:905, paragraph 87).
96 Furthermore, although the derogation from the principle of incompatibility of State aid provided for in Article 107(3)(b) TFEU must be interpreted strictly, the terms used to define that derogation must not, however, be construed in such a way as to restrict its scope unduly or to deprive it of its effects. A derogation must be interpreted in a manner consistent with the objectives which it pursues (judgment of 23 November 2023, Ryanair v Commission , C‑209/21 P, EU:C:2023:905, paragraph 88 and the case-law cited).
97 In the light of the foregoing, the General Court did not err in law in finding that the Commission was not obliged by Article 107(3)(b) TFEU to weigh the beneficial effects of the aid scheme at issue against its adverse effects on trading conditions and the maintenance of undistorted competition.
98 As to the remainder, it must be held that the complaint alleging distortion of the facts made in the context of the present ground of appeal is in no way substantiated.
99 It follows that the third ground of appeal must be rejected as unfounded. The fourth ground of appeal Arguments of the parties
100 By its fourth ground of appeal, Ryanair complains that the General Court erred in law and made a manifest error of assessment in classifying, in paragraphs 81 to 111 of the judgment under appeal, the aid scheme at issue as an ‘aid scheme’.
101 By the first part of the fourth ground of appeal, Ryanair submits that the General Court erred in law and misapplied its own case-law in that, in order to assess whether the aid scheme at issue constituted an ‘aid scheme’ within the meaning of Article 1(d) 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), the General Court, in paragraphs 81 to 94 of the judgment under appeal, applied a two-pronged test without taking into account the fact that the discretion of the national authorities is a constituent element of that test.
102 By the second part of that ground of appeal, Ryanair criticises the General Court for having wrongly held, in paragraphs 96 and 97 of the judgment under appeal, that the Spanish authorities granting the aid were ‘independent’. That assessment is based on a series of incorrect assumptions. Accordingly, the General Court wrongly assumed, first, that SEPI and the experts assisting it were fundamentally independent and, second, that the Management Board and the Council of Ministers were required to follow the assessment of SEPI.
103 By the third part of that ground of appeal, Ryanair submits that, contrary to what the General Court held in paragraphs 103 and 104 of the judgment under appeal, since the Real Decreto-ley 25/2020, de medidas urgentes para apoyar la reactivación económica y el empleo (Royal Decree-Law 25/2020 on urgent measures to support economic recovery and employment) of 3 July 2020 (BOE No 185 of 6 July 2020, p. 47684) and the Acuerdo del Consejo de Ministros sobre el funcionamiento del Fondo de Apoyo a la Solvencia de las Empresas Estratégicas (Agreement of the Council of Ministers on the functioning of the Solvency Support Fund for strategic enterprises; ‘the ACM’) governed only certain characteristics of the Fund, the authorities responsible for implementing the aid scheme at issue had a margin of discretion as regards the grant of the aid concerned. First, contrary to what the General Court stated in paragraph 106 of that judgment, the list of the 13 eligibility criteria in Article 2 of Annex II to the ACM is not exhaustive. Second, contrary to what the General Court held in paragraph 107 of that judgment, the criterion of the ‘strategic or systemic importance of the undertaking in question’ is extremely open-ended and therefore intrinsically discretionary, as evidenced by the nature of the factors which the Fund is called upon to examine pursuant to that article.
104 By the fourth part of that ground of appeal, Ryanair criticises the General Court for having, in paragraph 109 of the judgment under appeal, infringed its rights of the defence by rejecting as inadmissible its complaint that the Spanish authorities enjoyed a broad discretion in determining the amount and form of the aid concerned, on the ground that it had not been relied on in the application at first instance. That complaint amplifies the third plea of that application, in so far as it contained the more general statement that ‘the Management Board and likewise the Council of Ministers are purely political bodies’.
105 The Commission and the Kingdom of Spain contend that the fourth ground of appeal must be rejected. Findings of the Court
106 In so far as, by the first part of its fourth ground of appeal, Ryanair submits that, in paragraphs 81 to 94 of the judgment under appeal, the General Court applied incorrect criteria in order to determine whether the aid at issue constituted an ‘aid scheme’ within the meaning of Article 1(d) of Regulation 2015/1589, in particular in so far as it did not examine the discretion of the national authorities, it should be recalled that it is apparent from that provision that the classification of a State measure as an aid scheme presupposes that three cumulative conditions are satisfied. First, aid may be granted individually to undertakings on the basis of an act. Second, no further implementing measure is required for that aid to be granted. Third, undertakings to which individual aid may be granted must be defined ‘in a general and abstract manner’ (judgment of 16 September 2021, Commission v Belgium and Magnetrol International , C‑337/19 P, EU:C:2021:741, paragraph 60).
107 In that regard, in paragraph 81 of the judgment under appeal, the General Court stated that it intended to ascertain whether, in the first place, the provisions of Spanish law identified by the Commission in the decision at issue as constituting the legal basis of the aid scheme at issue enabled, in themselves, that is to say, without the need for further implementing measures, the individual grant of aid to undertakings which had applied for it and, in the second place, whether those provisions defined in a general and abstract manner the beneficiaries of the aid. Despite the fact that the General Court thus envisaged a verification of two factors, it must be stated, first, that the first of those factors includes the first two of the three conditions referred to in the preceding paragraph of the present judgment, the second of those factors corresponding to the third of those conditions.
108 Second, it is apparent from the examination carried out by the General Court in paragraphs 81 to 92 of the judgment under appeal that the General Court took account of all those conditions.
109 Accordingly, after finding, in the first place, in paragraphs 82 to 85 of the judgment under appeal, that the provisions of Spanish law identified by the Commission in the decision at issue as being the legal basis of the aid scheme at issue, namely those of the Royal Decree-Law 25/2020 and the ACM, allowed individual aid to be granted, in so far as those provisions governed, inter alia, the form of the aid, its amount, the period of its applicability, the eligibility criteria for beneficiaries and the bodies responsible for its application and the procedure to be followed, in paragraphs 86 to 90 of that judgment, the General Court examined, in the second place, whether those provisions were capable, in themselves, of forming the basis for the individual grant of aid to undertakings which had applied for it, that is to say, without the need for further implementing measures, and concluded, in paragraph 90 of that judgment, that that was the case. In the third place, the General Court held, in paragraphs 91 and 92 of that judgment, that the same provisions defined the beneficiaries of the aid in a general and abstract manner.
110 In addition, as regards, more specifically, the complaint alleging that the General Court did not take account of the discretion of the national authorities, it is sufficient to note that, in paragraphs 99 to 110 of the judgment under appeal, the General Court examined in detail Ryanair’s line of argument based on the discretion of the competent Spanish authorities, while distinguishing the circumstances of the present case from those at issue in the case giving rise to the judgment of 14 February 2019, Belgium and Magnetrol International v Commission (T‑131/16 and T‑263/16, EU:T:2019:91).
111 The first part of the fourth ground of appeal must therefore be rejected as unfounded.
112 By the second and third parts of that ground of appeal, Ryanair disputes certain findings of the General Court by which it rejected, first, in paragraphs 96 and 97 of the judgment under appeal, Ryanair’s arguments alleging that the Spanish authorities responsible for implementing the aid scheme at issue granted the aid concerned according to considerations of political opportunity and, second, in particular in paragraphs 106 and 107 of that judgment, the argument alleging that those authorities enjoyed a broad discretion as regards the grant of that aid.
113 In so doing, Ryanair seeks, in reality, to call into question the definitive assessment of the facts which the General Court made in those paragraphs of the judgment under appeal without demonstrating that the General Court carried out a manifestly incorrect assessment which would constitute a distortion of the facts or the evidence, within the meaning of the case-law referred to in paragraph 55 of the present judgment.
114 In the light of the foregoing, the second and third parts of the fourth ground of appeal must be rejected as inadmissible.
115 In so far as, by the fourth part of that ground of appeal, Ryanair challenges paragraph 109 of the judgment under appeal, on the ground that the General Court rejected as inadmissible its argument, put forward at the hearing, that the Spanish authorities enjoyed a broad discretion in determining the amount and form of the aid, it must be noted that the General Court rightly classified that argument as inadmissible. First, in the context of the third plea of its application at first instance, the appellant referred only to the identification of the beneficiaries, as is apparent from the title of that plea and from paragraphs 101 to 105 of that application. The appellant cannot therefore validly claim that there is nothing in that application to indicate that the discretion referred to therein is limited to the eligibility conditions of the beneficiaries.
116 Second, the appellant merely asserts that the submission that the Spanish authorities enjoy a broad discretion in determining the amount and form of the aid was ‘implicit’ in the more general assertion that the Management Board of the Fund and likewise the Council of Ministers are purely political bodies. Such an assertion does not appear to be sufficient to demonstrate that the appellant’s argument, referred to in the preceding paragraph, constituted an amplification of the third plea of its application before the General Court.
117 The fourth part of the fourth ground of appeal must therefore be rejected as unfounded.
118 It follows from the foregoing that the fourth ground of appeal must be rejected as in part inadmissible and in part unfounded. The fifth ground of appeal Arguments of the parties
119 By its fifth ground of appeal, Ryanair submits that, by finding, in paragraphs 112 and 113 of the judgment under appeal, that the fourth plea in its action at first instance, relating to an infringement of its procedural rights on the ground that the Commission refused to initiate the formal investigation procedure provided for in Article 108(2) TFEU, was deprived of its stated purpose as a result of the rejection of the first to third pleas in that action and lacked any content independent of those two pleas, the General Court erred in law and manifestly distorted the facts.
120 Ryanair claims that, contrary to what the General Court held, the fourth plea in law had independent content in relation to the first to third pleas in the action at first instance. Judicial review of the existence of serious difficulties which should have led to the initiation of the formal investigation procedure provided for in Article 108(2) TFEU differs from review of an error of law or a manifest error of assessment made by the Commission in the substantive examination of the aid scheme at issue. The existence of such serious difficulties could thus be established even though, contrary to the appellant maintained by its first to third pleas in law, the Commission’s examination of that aid scheme is not vitiated by either a manifest error of assessment or an error of law.
121 Similarly, the fourth plea in the action at first instance was not deprived of its stated purpose, since demonstrating the existence of such errors is completely different from demonstrating the existence of such serious difficulties. In addition, Ryanair put forward independent arguments to that effect, demonstrating, inter alia, that the Commission had not verified compliance with the principles of non-discrimination, freedom to provide services and freedom of establishment, or the contribution of undertakings not established in Spain to the provision of essential services in Spain, and that it had not applied the ‘balancing test’. Before the General Court, Ryanair thus identified specific shortcomings in the information provided to the Commission and highlighted serious difficulties rendering its fourth plea independent of the first to third pleas in that action.
122 The Commission and the Kingdom of Spain contend that the fifth ground of appeal must be rejected. Findings of the Court
123 When an applicant seeks the annulment of a decision of the Commission not to raise objections in relation to State aid, it essentially contests the fact that that decision was adopted without the Commission initiating the formal investigation procedure provided for in Article 108(2) TFEU, thereby infringing the applicant’s procedural rights. In order to have its action for annulment upheld, the applicant may invoke any plea to show that the assessment of the information and evidence which the Commission had at its disposal during the preliminary examination phase of the measure notified should have raised doubts as to the compatibility of that measure with the internal market. The use of such arguments cannot, however, have the consequence of changing the subject matter of the application or altering the conditions of its admissibility. On the contrary, the existence of doubts concerning that compatibility is precisely the evidence which must be adduced in order to show that the Commission was required to initiate the formal investigation procedure under Article 108(2) TFEU and Article 6(1) of Regulation 2015/1589 (judgment of 28 September 2023, Ryanair v Commission , C‑320/21 P, EU:C:2023:712, paragraph 143 and the case-law cited).
124 Thus, it is for the party making such a claim to show that there were doubts concerning the compatibility of the aid with the internal market, meaning that the Commission was required to initiate the formal investigation procedure. Such proof must be sought both in the circumstances in which the decision was taken and in its content, on the basis of a body of corroborating evidence (judgment of 28 September 2023, Ryanair v Commission , C‑320/21 P, EU:C:2023:712, paragraph 144 and the case-law cited).
125 In particular, the insufficient or incomplete nature of the examination carried out by the Commission during the preliminary examination procedure is an indication that the Commission was faced with serious difficulties in assessing the compatibility of the notified measure with the internal market, which should have led it to initiate the formal investigation procedure (judgment of 28 September 2023, Ryanair v Commission , C‑320/21 P, EU:C:2023:712, paragraph 145 and the case-law cited).
126 In that respect, as regards, first of all, the complaint alleging that the General Court held, in paragraph 113 of the judgment under appeal, that the fourth plea in law in the action at first instance lacked any independent content, it should be noted that, as Ryanair stated in its appeal, it is true that if the existence of serious difficulties, within the meaning of the case-law of the Court of Justice referred to in the preceding paragraph of the present judgment, had been established, the decision at issue could have been annulled on that ground alone, even though it had not been established, moreover, that the Commission’s assessments as to substance were wrong in law or in fact (see, to that effect, judgment of 28 September 2023, Ryanair v Commission , C‑320/21 P, EU:C:2023:712, paragraph 146 and the case-law cited).
127 Furthermore, the existence of such difficulties may be sought, inter alia, in those assessments and may, in principle, be established by pleas or arguments put forward by an applicant in order to challenge the merits of a decision not to raise objections, even if the examination of those pleas or arguments does not lead to the conclusion that those assessments are wrong in fact or in law (judgment of 28 September 2023, Ryanair v Commission , C‑320/21 P, EU:C:2023:712, paragraph 147 and the case-law cited).
128 In the present case, it must be stated that the fourth plea in law in Ryanair’s action at first instance alleged, in essence, that the examination carried out by the Commission during the preliminary examination procedure of the aid scheme at issue and the different assessment of the compatibility of that aid scheme with the internal market which the Commission would have made if it had decided to initiate a formal investigation procedure under Article 108(2) TFEU were incomplete and insufficient. It is also apparent from that action that, in support of that fourth plea, Ryanair essentially either repeated in a condensed manner the arguments put forward in the first to third pleas in law in that action, relating to the merits of the decision at issue, or referred directly to those arguments.
129 In those circumstances, the General Court was fully entitled to find, in paragraph 113 of the judgment under appeal, that the fourth plea in the action at first instance lacked ‘any independent content’ in relation to the first to third pleas in that action, in that, after examining the substance of those first three pleas, including the arguments alleging that the examination carried out by the Commission was incomplete and insufficient, it was not required to assess separately the merits of the fourth plea, all the more so since, as the General Court also rightly pointed out in paragraph 113 of the judgment under appeal, by that plea, Ryanair had not put forward specific evidence capable of demonstrating the existence of possible serious difficulties encountered by the Commission in assessing the compatibility of the aid scheme at issue with the internal market.
130 It follows that the General Court did not err in law in finding, in paragraph 113 of the judgment under appeal, that there was no need to rule on the merits of the fourth plea in the action at first instance. In that regard, it is not necessary, to examine, moreover, whether the General Court was right to hold, in paragraph 112 of that judgment, that that plea was subsidiary in nature and that it was deprived of its stated purpose.
131 Lastly, it must be held that Ryanair has not put forward any argument capable of demonstrating that the General Court distorted the facts, within the meaning of the case-law referred to in paragraph 55 of the present judgment, in its examination of that plea.
132 It follows from the foregoing that the fifth ground of appeal must be rejected as unfounded. The sixth ground of appeal Arguments of the parties
133 By its sixth ground of appeal, Ryanair alleges that the General Court erred in law and manifestly distorted the facts in that it held, in paragraphs 115 to 125 of the judgment under appeal, that the Commission had not infringed its obligation to state reasons under the second paragraph of Article 296 TFEU.
134 According to the appellant, the General Court accepted that the context in which the decision at issue was adopted, marked by the occurrence of the COVID-19 pandemic and the difficulties to which that pandemic may have given rise in the drafting of the Commission’s decisions, could justify a lack of crucial evidence in the statement of reasons for that decision, even though that evidence was necessary for the appellant to understand the reasoning underlying the Commission’s conclusions set out in that decision. The General Court’s interpretation of the second paragraph of Article 296 TFEU in the judgment under appeal is contrary to the case-law of the Court of Justice and deprives the obligation to state reasons laid down in that provision of any practical effect.
135 The Commission and the Kingdom of Spain contend that the sixth ground of appeal must be rejected as inadmissible or, in any event, as unfounded. Findings of the Court
136 It should be pointed out that, according to settled case-law, the statement of reasons required by the second paragraph of Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measures 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 specify all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of the second paragraph of Article 296 TFEU 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 (judgment 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).
137 Specifically, as regards a decision under Article 108(3) TFEU not to raise objections in respect of an aid measure, as in the present case, the Court has held previously that such a decision, which is taken within a short period of time, must simply set out the reasons why the Commission takes the view that it is not faced with serious difficulties in assessing the compatibility of the aid at issue with the internal market, and that even a succinct statement of reasons for that decision must be regarded as sufficient for the purpose of satisfying the requirement to state adequate reasons laid down in the second paragraph of Article 296 TFEU, provided that it discloses in a clear and unequivocal fashion the reasons why the Commission considered that it was not faced with serious difficulties, the question whether the reasoning is well founded being a separate matter (see, to that effect, judgment of 2 September 2021, Commission v Tempus Energy and Tempus Energy Technology , C‑57/19 P, EU:C:2021:663, paragraph 199 and the case-law cited).
138 It is in the light of those requirements that it is necessary to examine whether the General Court erred in law in holding that the decision at issue was sufficiently reasoned.
139 In that regard, first, in so far as Ryanair complains that the General Court, in essence, relaxed the requirements relating to the obligation to state reasons in view of the context of the COVID-19 pandemic in which the decision at issue had been adopted, it must be stated that, by referring, in paragraph 120 of the judgment under appeal, to the context in which that decision had been adopted, namely that of a pandemic and the extreme urgency in which the Commission had adopted the ‘Temporary Framework’ communication, examining the measures notified to it by the Member States, in particular pursuant to that communication, and had adopted the decisions relating to those measures, including the decision at issue, the General Court rightly, as required by the case-law referred to in paragraphs 136 and 137 of the present judgment, took into consideration relevant factors in order to determine whether, by adopting that decision, the Commission had complied with its obligation to state reasons.
140 Second, in so far as Ryanair relies on specific factors on which the Commission, in breach of that obligation, did not take a decision or which it did not assess in the decision at issue, such as whether the aid scheme at issue complied with the principle of equal treatment, the freedom to provide services and the freedom of establishment and the precise reasons why ‘strategic’ undertakings established in Spain should be favoured over other undertakings equally affected by the COVID‑19 pandemic, it is apparent from paragraphs 122 and 123 of the judgment under appeal that the General Court considered that those factors were either not relevant for the purposes of that decision or that reference was made to them to the requisite legal standard in that decision in order for the Commission’s reasoning to be understood in that regard.
141 It does not appear that, by those considerations, the General Court failed to have regard to the requirement to state reasons for a Commission decision adopted under Article 108(3) TFEU not to raise objections, as follows from the case-law referred to in paragraphs 136 and 137 of the present judgment, since that statement of reasons, in the present case, enables Ryanair to ascertain the reasons for the decision at issue and enables the EU judicature to exercise its power of review with regard to that decision, as is, moreover, apparent from the judgment under appeal.
142 Furthermore, in so far as the line of argument put forward in the sixth ground of appeal seeks in reality to demonstrate that the decision at issue was adopted on the basis of an insufficient or legally incorrect assessment by the Commission, that line of argument relates to the merits of that decision rather than to the requirement to state reasons as an essential procedural requirement, with the result that it must be rejected in the light of the case-law referred to in paragraph 137 of the present judgment.
143 It follows from the foregoing that the General Court did not err in law in holding, in paragraphs 115 to 125 of the judgment under appeal, that the decision at issue was sufficiently reasoned.
144 Finally, it must be pointed out that Ryanair has not put forward any argument capable of demonstrating that the General Court distorted the facts, within the meaning of the case-law referred to in paragraph 55 of the present judgment, when examining the fifth plea in the action at first instance.
145 It follows from the foregoing that the sixth ground of appeal must be rejected as unfounded.
146 Since none of the grounds of appeal put forward by the appellant has been upheld, the appeal must be dismissed in its entirety. Costs
147 In accordance with Article 184(2) of the Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to the costs.
148 Article 138(1) of those rules, applicable to appeal proceedings pursuant to Article 184(1) thereof, provides that the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the appellant has been unsuccessful and the Commission has applied for costs to be awarded against it, the appellant must be ordered to bear its own costs and to pay those incurred by the Commission.
149 In accordance with Article 184(4) of the Rules of Procedure, where the appeal has not been brought by an intervener at first instance, the latter may not be ordered to pay costs in the appeal proceedings unless it participated in the written or oral part of the proceedings before the Court of Justice. Where an intervener at first instance takes part in the proceedings, the Court may decide that it is to bear its own costs. Since the Kingdom of Spain, intervener at first instance, participated in the proceedings before the Court, it must be ordered to bear its own costs. On those grounds, the Court (Fourth Chamber) hereby: 1. Dismisses the appeal; 2. Orders Ryanair DAC to bear its own costs and to pay those incurred by the European Commission; 3. Orders the Kingdom of Spain to bear its own costs. Lycourgos Spineanu-Matei Bonichot Rodin Rossi Delivered in open court in Luxembourg on 6 June 2024. A. Calot Escobar C. Lycourgos Registrar President of the Chamber * Language of the case: English.