Judgments nº T-268/06 of Court of First Instance of the European Communities, June 25, 2008

• Resolution Date: June 25, 2008
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-268/06

In Case T-268/06,

Olympiaki Aeroporia Ypiresies AE, established in Athens (Greece), represented by P.†Anestis, lawyer, T.†Soames and G.†Goeteyn, Solicitors, S.†Mavrogenis and M.†Pinto de Lemos Fermiano Rato, lawyers,

applicant,

v

Commission of the European Communities, represented by E.†Righini and I. Chatzigiannis, acting as Agents,

defendant,

APPLICATION for annulment of Commission Decision C†(2006)†1580 final of 26 April 2006 concerning a State aid scheme C†39/2003 (ex†NN†119/2002) which the Hellenic Republic implemented in favour of airlines following losses suffered between 11 and 14 September 2001,

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Eighth Chamber),

composed of E.†Martins Ribeiro, President, S.†Papasavvas (Rapporteur) and A.†Dittrich, Judges,

Registrar: C.†Kantza, Administrator,

having regard to the written procedure and further to the hearing on 7†December 2007,

gives the following

Judgment

†Facts

1 ††††††††By its Communication COM†(2001)†574 final of 10 October 2001 (hereinafter -the Communication of 10 October 2001-), the Commission informed the European Parliament and the Council of its assessment of the repercussions on the air transport industry of the terrorist attacks of 11 September 2001 in the United States.

2 ††††††††As regards the application of the State aid rules, the Commission considered, in the Communication of 10 October 2001, that Article 87(2)(b) EC enabled certain problems facing the airlines because of the events of 11 September 2001 to be dealt with. Having regard to the exceptional nature of the occurrences in question, the provisions of that article could, according to that communication, authorise, under certain conditions, compensation for, first, the costs caused by the closure of American airspace for four days (from 11 to 14 September 2001) and, second, the extra cost of insurance (paragraphs 28 to 41 of the Communication of 10†October 2001).

3 ††††††††As regards the conditions to which any compensation should be subject, the Communication of 10 October 2001 states that it should be paid in a non-discriminatory manner, concern only costs incurred between 11 and 14†September 2001 and that its amount be calculated accurately and objectively following the specific method suggested by the Commission.

4 ††††††††By letter of 14 November 2001 to all the Member States, the Commission provided additional information relating to the calculation of the amount of the compensation to be paid to each airline.

5 ††††††††Following exchanges of correspondence between December 2001 and July 2002, the Greek authorities informed the Commission, by letter of 24 September 2002, of the detailed calculations of the compensation of the applicant, Olympiaki Aeroporia Ypiresies AE, on account of the losses caused to it by the events in question. In that letter, the compensation was detailed thus:

-††††††††EUR†4†079†237 for lost revenue in respect of carriage of passengers throughout the applicant-s network, of which about EUR†1†212†032 concerned its network outside the North Atlantic;

-††††††††EUR†278†797 in respect of lost revenue from the carriage of goods;

-††††††††EUR†17†608 in respect of the costs of destruction of sensitive goods;

-††††††††EUR†41†086 in respect of the costs of additional security checks for goods;

-††††††††EUR†37†469 in respect of the costs of recalling flight OA†411 to New York (United States) and the costs of cancelling the return flight (OA†412) to Athens (Greece) on 11 September 2001;

-††††††††EUR†13†550 in respect of the costs connected with the landing and grounding at Halifax (Canada), from 11 to 15 September 2001, of a flight the original destination of which was Toronto (Canada);

-††††††††EUR†478†357 in respect of the expenses of implementing -ferry flights- (extra flights on 18, 20 and 26 September 2001 to repatriate passengers to the United States and Canada);

-††††††††EUR†146†735 in respect of the costs connected with the additional hours worked by staff, the accommodation of passengers and additional security staff;

-††††††††EUR†14†673 in respect of the costs connected with additional emergency security measures.

6 ††††††††From the total amount of those sums were then deducted EUR†278†797 in respect of the fuel which would have been used if the schedule of flights had not been disrupted. The final sum of EUR†4†827†586.21 had already been paid to the applicant in July 2002 under Article 45(17) of Law No†2992/2002 (FEK A-†54/20.3.2002) and the Joint Ministerial Decree of 27 May 2002 (FEK B-†682/31.5.2002).

7 ††††††††By letter of 27 May 2003, the Commission informed the Hellenic Republic of its decision to initiate, as regards the measures in question, the procedure under Article 88(2) EC and requested the Greek authorities to provide it with certain documents and additional information (hereinafter -the decision to open the formal investigation procedure-). Also, it requested the interested parties to submit their comments within one month from the date of publication in the Official Journal of the EuropeanUnion (OJ†2003 C†199, p.†3) of the decision to open the formal investigation procedure.

8 ††††††††The Greek authorities submitted their comments to the Commission by letter of 20†November 2003. According to that letter, the actual loss caused by the cancellation of seven return flights scheduled for the period 11 to 14 September 2001 to New York, to Tel-Aviv (Israel), to Toronto via Montreal (Canada) and to Boston (United States) amounted to EUR†1†921†203.20. That figure did not include losses incurred following the cancellation of tickets on other flights with which the cancelled flights would have connected. As regards the costs connected with the flight which landed on 11 September at Halifax instead of Toronto, the Greek authorities submitted an assessment, according to which they amounted to EUR†38†056. As regards the costs of recalling the 11 September 2001 flight to New York, the Greek authorities reassessed them at EUR†3†421. As regards the cancellation of three return flights to New York and to Toronto via Montreal on 15 and 16 September 2001, the Greek authorities pointed out that the losses caused were directly connected with the closure of the airspace from 11 to 14†September and that they amounted to EUR†977†257. As for the -ferry flights-, the Greek authorities stated that they were a flight to New York on 18 September 2001 and two flights to Toronto via Montreal on 20 and 26 September 2001. The loss caused by the exceptional nature of those flights, which involved carrying no passengers on the return flights to Athens, were EUR†487†312.17. According to the Greek authorities, that loss should be regarded as being directly connected with the events of 11 September 2001.

9 ††††††††In those circumstances, the Greek Ministry of Transport and Communications requested the Commission to approve an amount of EUR†3†770†717.70 as well as the amounts mentioned in the second to ninth indents of paragraph 5 above in respect of compensation for losses directly connected with the terrorist attacks of 11 September 2001. As regards those losses, the Greek authorities stated that they would soon produce supporting documentary evidence.

10 ††††††By letter of 15 March 2004, the Commission reminded the Greek authorities that they had not yet submitted the additional information mentioned in their letter of 20 November 2003 and gave them a period of two weeks for that purpose.

11 ††††††The Greek authorities did not reply to that request.

†Contested decision

12 ††††††By its Decision C†(2006)†1580 final of 26 April 2006 concerning State aid scheme C†39/2003 (ex†NN†119/2002) which the Hellenic Republic implemented in favour of air carriers following the losses suffered between 11 and 14 September 2001 (hereafter -the contested decision-), the Commission closed the formal investigation procedure and decided, in particular, that the State aid implemented by the Hellenic Republic in favour of the applicant was compatible with the common market as regards the compensation paid for the period from 11 to 14†September 2001 up to a maximum sum of EUR†1†962†680. That sum corresponds to EUR†1†921†203 in respect of the cancellation of the seven return flights to New York, to Tel-Aviv, to Toronto via Montreal and to Boston, plus EUR†38†056 in respect of the landing and stay at Halifax of the flight the original destination of which was Toronto plus EUR†3†421 in respect of the recall of the 11†September 2001 flight to New York (recitals 49 and 50 in the contested decision).

13 ††††††As regards, on the other hand, the costs connected with the cancellation of three return flights, one of which was to New York on 15 September 2001 and two to Toronto via Montreal on 15 and 16 September 2001, amounting to EUR†977†257, and the costs concerning the -ferry flights- amounting to EUR†487†312, the Commission stated that they were connected only with indirect repercussions of the terrorist attacks of 11 September 2001 which were felt in several sectors of the world economy (recital 58 in the contested decision).

14 ††††††So far as concerns, more particularly, the 15 September 2001 flight to New York, recitals 53 to 55 in the contested decision are worded thus:

-53††††††The Commission finds - that the situation, after 14 September, was no longer characterised by disruption to air traffic but by more limited exploitation of the air routes by the companies concerned.

54††††††That is the case for the measures submitted by the [Hellenic Republic] in favour [of the applicant] which concern, in the first place three return transatlantic flights which were not operated on 15 and 16 September, one to the United States and two to Canada, representing for [the applicant] a loss of 333†000†000 Greek drachmas (GRD), that is about EUR†977†257.

55††††††Concerning, first of all, the unavailability of slots at New York, the [Hellenic Republic] confirms that JFK airport was...