Judgments nº T-111/15 of Tribunal General de la Unión Europea, December 13, 2018

• Resolution Date: December 13, 2018
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-111/15

(State aid - Agreements between the Syndicat mixte des aéroports de Charente and Ryanair and its subsidiary Airport Marketing Services - Airport services - Marketing services - Decision declaring the aid incompatible with the internal market and ordering its recovery - Notion of State aid - Imputability to the State - Chamber of Commerce and Industry - Advantage - Private investor test - Recovery - Article 41 of the Charter of Fundamental Rights - Right of access to the file - Right to be heard)

In Case T-111/15,

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 and S. Noë, acting as Agents,

defendant,

APPLICATION under Article 263 TFEU seeking the partial annulment of Commission Decision (EU) 2015/1226 of 23 July 2014 on State aid SA.33963 (2012/C) (ex 2012/NN) implemented by France in favour of Angoulême Chamber of Commerce and Industry, SNC-Lavalin, Ryanair and Airport Marketing Services (OJ 2015 L 201, p. 48),

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 25 October 2017,

gives the following

Judgment

1. Background to the dispute

   1. Measures at issue

      1 The applicants, namely Ryanair DAC, formerly Ryanair Ltd, and Airport Marketing Services Ltd (‘AMS’), are, the former, an airline established in Ireland which operates more than 1 600 flights daily connecting 189 destinations in 30 countries across Europe and North Africa, and, the latter, a subsidiary of Ryanair which provides marketing strategy solutions, principally online, its activity consisting primarily of selling advertising space on Ryanair’s website.

      2 Angoulême Brie Champniers airport (‘Angoulême airport’) is situated in the Department of Charente in France and was operated jointly in the period concerned by the Chamber of Commerce and Industry (CCI) of Angoulême acting as manager (‘CCI-airport’) and the Syndicat mixte des aéroports de Charente (‘SMAC’), whose members include the Department of Charente, the Urban Community of Greater Angoulême, the Communal Community of Braconne and Charente, Angoulême CCI, the Communal Community of Cognac and the Cognac CCI. By order of the Prefect of 22 December 2006, ownership of Angoulême airport was transferred from the French Republic to SMAC.

      3 Following the publication of a European call for projects, SMAC entered into an initial agreement with Ryanair and a second with AMS on 8 February 2008 (together ‘the 2008 agreements’). The initial term of those agreements was five years.

      4 Under the first of those agreements, entitled ‘Airport Services Agreement’, Ryanair undertook to operate an initial flight programme of the route between Angoulême airport and London Stansted airport, three times per week during the summer months. [confidential] (1) SMAC granted Ryanair certain reductions on aeronautical charges compared with the general schedule of charges in force at the latter airport (passenger charge, landing charge and ground-handling charge).

      5 Under the second of the agreements, entitled ‘Marketing Services Agreement’, AMS undertook to provide services for the first three years consisting in advertising on Ryanair’s website, in return for payment by SMAC of EUR 400 000 in 2008, EUR 300 000 in 2009 EUR 225 000 in 2010.

      6 Ryanair operated the route between Angoulême airport and London Stansted airport during the summer seasons of 2008 and 2009. Taking the view that the route had ceased to be economically viable, Ryanair terminated the 2008 agreements and stopped operating that route in February 2010.

   2. Administrative procedure

      7 On 26 January 2010, the European Commission registered a complaint lodged by Air France concerning advantages which Ryanair had allegedly received at a number of French airports, including Angoulême airport.

      8 By letter of 21 March 2012, the Commission notified the French Republic of its decision to open the procedure laid down in Article 108(2) TFEU with respect to the measures from which Ryanair was alleged to have benefited in respect of Angoulême airport (‘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. 29), the Commission called on the interested parties to submit their comments on those measures.

      9 The French authorities submitted their comments to the Commission and answered the questions set out by the Commission in the opening decision and subsequently.

      10 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 the 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 intended to base 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 those requests.

      11 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 their comments to the French authorities, which did not comment on them.

      12 By letters of 24 February, 13 and 19 March 2014, in accordance with the Guidelines on State aid to airports and airlines, published in the Official Journal on 4 April 2014 (OJ 2014 C 99, p. 3; ‘the 2014 Guidelines’), the Commission invited the French authorities and the interested parties to submit their comments on the application of those guidelines in particular to the measures concerning Angoulême airport and Ryanair. On 19 March 2014, the French authorities submitted comments.

      13 In addition, by a notice published in the Official Journal on 15 April 2014 (OJ 2014 C 113, p. 30), the Commission invited the Member States and interested parties to submit their comments, including with regard to the measures concerning Angoulême airport in the light of the entry into force of the 2014 Guidelines.

      14 In response to the Commission’s letters of 24 February and 13 March 2014, Ryanair submitted, by letter of 2 May 2014, comments on the application of the 2014 Guidelines to the State aid cases in which it was involved.In its letter, Ryanair also gave its views on those guidelines.

   3. Contested decision

      15 At the end of the formal investigation procedure, the Commission adopted Decision (EU) 2015/1226 of 23 July 2014 on State aid SA.33963 (2012/C) (ex 2012/NN) implemented by France in favour of Angoulême Chamber of Commerce and Industry, SNC-Lavalin, Ryanair and Airport Marketing Services (OJ 2015 L 201, p. 48; ‘the contested decision’).

      16 In the contested decision, the Commission gave a detailed description of the measures at issue. Those measures consisted of financial support to Angoulême airport concerning investments in airport infrastructure and the costs associated with sovereign tasks and the operation of the airport (recitals 18 to 29) and the 2008 agreements entered into by SMAC with Ryanair and AMS (recitals 32 to 42).

      17 The Commission considered that the measures in favour of the operators of Angoulême airport constituted aid within the meaning of Article 107(1) TFEU, and were nevertheless compatible with the internal market on the basis of Article 106(2) TFEU and Commission Decision 2012/21/EU of 20 December 2011 on the application of Article 106(2) [TFEU] to State aid in the form of public service compensation granted to certain undertakings entrusted with the operation of services of general economic interest (OJ 2012 L 7, p. 3) (recitals 170 to 293 of the contested decision).

      18 As regards the 2008 agreements which SMAC entered into with Ryanair and AMS, the Commission concluded that they granted them State aid within the meaning of Article 107(1) TFEU.

      19 In that regard, the Commission found that the decision to enter into the 2008 agreements could be imputed to the French Republic (see recitals 297 and 298 of the contested decision). In order to determine whether any advantage had been conferred, the Commission considered whether a hypothetical market economy operator motivated by the prospect of profits and managing Angoulême airport in place of SMAC and CCI-airport, would have entered into those agreements.

      20 In that regard, the Commission began by taking the view that it was necessary, first, to analyse the 2008 agreements jointly as a single transaction (recitals 304 to 313 of the contested decision). Second, account should be taken only of the possible positive effect of the services performed under the second agreement concerning the number of passengers using the routes covered by those agreements during the period of operation of those routes, to the exclusion of any other excessively uncertain benefits (recitals 314 to 338 of the contested decision). Third, it was necessary to depart, for the purposes of applying the operator in a market economy test, from the method consisting of making a comparison with the ‘price on the market’ (‘the comparative analysis’) and to confine itself to an ex ante incremental profitability analysis (‘the incremental profitability analysis’) (recitals 339 to 349 of that decision).

      21 Next, the Commission carried out its own incremental profitability analysis concerning the 2008 agreements. On concluding that analysis, it found that the anticipated annual incremental...