Judgments nº T-165/16 of Tribunal General de la Unión Europea, December 13, 2018

Resolution DateDecember 13, 2018
Issuing OrganizationTribunal General de la Unión Europea
Decision NumberT-165/16

(State aid - Agreements concluded with the airline Ryanair and its subsidiary Airport Marketing Services - Airport services - Marketing services - Decision declaring the aid to be incompatible with the internal market and ordering its recovery - Notion of State aid - Advantage - Private investor test - Recovery - Article 41 of the Charter of Fundamental Rights of the European Union - Access to the file - Right to be heard)

In Case T-165/16,

Ryanair DAC, formerly Ryanair Ltd, established in Dublin (Ireland),

Airport Marketing Services Ltd, established in Dublin,

represented by G. Berrisch, E. Vahida, I.-G. Metaxas-Maranghidis, lawyers, and B. Byrne, Solicitor,

applicants,

v

European Commission, represented by L. Flynn, L. Armati, and S. Noë, acting as Agents,

defendant,

supported by

Council of the European Union, represented by S. Boelaert and S. Petrova, acting as Agents,

intervener,

ACTION under Article 263 TFEU for the partial annulment of Commission Decision (EU) 2016/287 of 15 October 2014 on State aid SA.26500 - 2012/C (ex 2011/NN, ex CP 227/2008) implemented by Germany for Flugplatz Altenburg-Nobitz GmbH and Ryanair Ltd (OJ 2016 L 59, p. 22),

THE GENERAL COURT (Sixth Chamber, Extended Composition),

composed of G. Berardis, President, S. Papasavvas, D. Spielmann (Rapporteur), Z. Csehi and O. Spineanu-Matei, Judges,

Registrar: P. Cullen, Administrator,

having regard to the written part of the procedure and further to the hearing on 4 July 2018,

gives the following

Judgment

Background to the dispute

Measures at issue

1 The first applicant, Ryanair DAC, formerly Ryanair Ltd (‘Ryanair’), is an airline established in Ireland which operates more than 1 800 flights daily connecting 200 destinations in 31 countries across Europe and North Africa. The second applicant, Airport Marketing Services Ltd (‘AMS’), is a subsidiary of Ryanair which provides marketing strategy solutions. Its activity consists primarily of selling advertising space on Ryanair’s website.

2 Altenburg-Nobitz airport is located in the south of Land Thüringen, Germany. That airport is owned and operated by the company Flugplatz Altenburg-Nobitz GmbH (‘AOC’), whose shareholders are public authorities or fully publicly owned.

3 Ryanair operated daily flights from that airport to London Stansted (United Kingdom) between 2003 and 2011. It also began operating a route to Barcelona-Girona airport (Spain) in 2007. Similarly, it launched a route to Edinburgh airport (United Kingdom) in 2009 and one to Alicante airport (Spain) in 2010.

4 On 3 March 2003, AOC and Ryanair signed an airport services agreement for a duration of 10 years under which Ryanair undertook to operate daily scheduled flights to London Stansted airport. Ryanair was required to pay a fee for the provision of airport services, in accordance with Altenburg-Nobitz airport’s schedule of airport charges in force at the time of their performance, as well as a sum comprising passenger security charges and State taxes. The applicants maintained that the airport services agreement served as a basis for an expansion of the parties’ cooperation to four routes (to London, Girona, Edinburgh and Alicante).

5 Furthermore, AOC concluded three marketing services agreements, the first with Ryanair and the other two with AMS.

6 Under the first marketing services agreement, signed on 7 April 2003 for a duration of 10 years, Ryanair was required to carry out marketing activities to promote the area of Altenburg-Nobitz. AOC was required in return to pay two charges. First, it paid a ‘success fee’ per departing passenger, resulting in a net charge to be paid by Ryanair per passenger in respect of landing, local air traffic control, lighting, parking (not including overnight parking), ramp and passenger handling, infrastructure and airport taxes per passenger. AOC calculated the net charge per passenger according to the passenger load sheets and presented the calculation to Ryanair at the end of each week. Ryanair calculated the success fee and presented the calculation to AOC within 30 days of the end of each month. The calculation was based upon the services of the preceding calendar month. Ryanair could deduct its success fee from AOC’s monthly bills for landing fees. Second, AOC paid a ‘success fee’, based on a certain percentage of any increase in fees at the airport, consisting in: 100% of any increase in the security tax levied by the government up to a maximum of 10% over the existing published rate in a five-year period, and 100% of any increase in published fees or additional fees, charges or taxes introduced in the published charges of the airport up to a maximum of 10% of the existing total published fee paid by Ryanair, in a five-year period.

7 Under the second marketing services agreement, signed on 28 August 2008 for an initial duration of two years, AMS was required to provide marketing services consisting of advertisements on Ryanair’s website, against payment by AOC of [confidential] (2) in 2008 and [confidential] in 2009. The agreement was linked to Ryanair’s commitment to operate a route between Altenburg-Nobitz airport and London Stansted airport in the summer (daily) and in the winter (four times a week) and a route to Girona (three times a week only in the summer).

8 Under the third marketing services agreement, signed on 25 January 2010 for an initial duration of one year, AMS again undertook to provide marketing services consisting in advertisements on Ryanair’s website, against payment by AOC of [confidential]. The agreement was related to Ryanair’s commitment to offer - as from summer 2010 and for the IATA summer season only starting on 28 March 2010 and ending on 30 October 2010 - routes between Altenburg-Nobitz airport and London Stansted airport (seven times a week), Girona airport (three times a week) and Alicante airport (twice a week).

9 The Barcelona-Girona, Edinburgh and Alicante airport routes were all subsequently withdrawn, as was the London Stansted airport route, on 31 March 2011, with the result that, as of that date, Ryanair completely ceased to operate out of Altenburg-Nobitz airport.

Administrative procedure

10 On 27 August 2008, the European Commission received a complaint from the Bundesverband der deutschen Fluggesellschaften e.V. (Federal Association of German Airlines) alleging that AOC and Ryanair had received unlawful State aid. The Commission forwarded the complaint to the German authorities and asked them for information. The German authorities provided the information sought.

11 On 8 April 2011, the Commission requested additional information from Ryanair. Ryanair provided the information requested on 20 June 2011.

12 By letter of 25 January 2012, the Commission notified the German authorities of its decision to open the procedure laid down in Article 108(2) TFEU in respect of the aid granted to AOC, the application of reduced airport charges to airlines and the conclusion of the marketing services agreements with Ryanair (‘the opening decision’). In the publication of that decision in the Official Journal of the European Union on 25 May 2012 (OJ 2012 C 149, p. 5), the Commission called on the interested parties to submit their comments on those measures.

13 The German authorities provided their comments on the opening decision as well as replies to the requests for information subsequently sent by the Commission.

14 By letters of 29 May and 20 July 2012, Ryanair’s legal counsel requested, in accordance with Article 41(1) and (2) of the Charter of Fundamental Rights of the European Union (‘the Charter’), that the Commission inform Ryanair, before adopting a final decision, of those facts and considerations on which it intended to base its decision, grant it access to the file, particularly to the evidence on which the Commission based its decision, and afford it an opportunity to present its views, within a reasonable period of time after notification of the abovementioned facts and considerations. By letters of 19 June and 4 October 2012, the Commission refused that request.

15 By letters of 25 June 2012, the applicants submitted their comments on the opening decision.By several subsequent letters, Ryanair sent further comments. The Commission forwarded those comments to the German authorities.

16 By letters to the German authorities and third parties on 24 and 25 February 2014, the Commission informed them of the adoption on 20 February 2014 of the new Guidelines on State aid to airports and airlines (OJ 2014 C 99, p. 3; ‘the 2014 Guidelines’) and of the fact that those 2014 Guidelines would become applicable to the relevant case from the date of their publication in the Official Journal of the European Union. In addition, on 15 April 2014, a notice was published in the Official Journal of the European Union (OJ 2014 C 113, p. 30) inviting the Member States and interested parties to submit comments in this regard. By letter of 2 May 2014, Ryanair submitted its comments on the 2014 Guidelines.

Contested decision

17 At the end of the formal investigation procedure, on 15 October 2014, the Commission adopted Decision (EU) 2016/287 on State aid SA.26500 - 2012/C (ex 2011/NN, ex CP 227/2008) implemented by Germany for Flugplatz Altenburg-Nobitz GmbH and Ryanair Ltd (OJ 2016 L 59, p. 22; ‘the contested decision’). In that decision, the Commission set out a detailed description of the measures at issue, comprising, on the one hand, the award of subsidies to AOC for the financing of infrastructure investments and for the financing of operating losses (recitals 36 to 44 of the contested decision) and, on the other, airport charges and payments to Ryanair under the airport services agreement and marketing services agreements (recitals 45 to 64 of the contested decision).

18 The Commission took the view that the public subsidies at issue to finance infrastructure investments and operating losses at Altenburg-Nobitz airport, referred to...

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