Judgments nº T-894/16 of Tribunal General de la Unión Europea, July 11, 2019

• Resolution Date: July 11, 2019
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-894/16

(Action for annulment - State aid - Measures implemented by France in favour of Marseille Provence Airport and airlines using the airport - Decision declaring the aid compatible with the internal market - Investment subsidies - Differentiation between airport charges applicable to national and international flights - Reduced airport charges to encourage flights from the new Marseille Provence terminal 2 - Lack of individual concern - No substantial effect on the competitive position - Inadmissibility)

In Case T-894/16,

Société Air France, established in Tremblay-en-France (France), represented by R. Sermier, lawyer,

applicant,

v

European Commission, represented by S. Noë, C. Giolito and C. Georgieva-Kecsmar, acting as Agents,

defendant,

supported by

Aéroport Marseille Provence SA, established in Marignane (France), represented by A. Lepièce, lawyer,

and by

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

and

Airport Marketing Services Ltd, established in Dublin,

represented by E. Vahida and I.-G. Metaxas-Maranghidis, lawyers,

interveners,

ACTION under Article 263 TFEU for the annulment of Commission Decision (EU) 2016/1698 of 20 February 2014 concerning measures SA.22932 (11/C) (ex NN 37/07) implemented by France in favour of Marseille Provence Airport and airlines using the airport (OJ 2016 L 260, p. 1),

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: E. Artemiou, Administrator,

having regard to the written part of the procedure and further to the hearing on 10 January 2019,

gives the following

Judgment

Background to the dispute

1 Marseille Provence Airport is situated in the department of Bouches-du-Rhône in France. It is one of the largest airports in the country. In 2012, it handled over 8 million passengers. In 2004, with a view to revitalising its traffic and redirecting its development towards European destinations, it decided to set up, next to the main terminal (‘Terminal mp1’), a new terminal for ‘low-cost’ flights (‘Terminal mp2’). Work began in December 2005 and Terminal mp2 started operating in September 2006.

2 On 27 March 2007, the Commission received a complaint, dated 15 March 2007 and lodged by the applicant, Air France, about unlawful aid granted by the Conseil général des Bouches-du-Rhône (Departmental Council of Bouches-du-Rhône, France) to Marseille Provence Airport, and also about unlawful aid granted by the airport to Ryanair DAC, formerly Ryanair Ltd, and other airlines. Those advantages allegedly involved, in particular, reduced airport charges to encourage flights from Terminal mp2.

3 On 27 November 2009, Air France lodged a complaint with the Commission about unlawful aid granted by several French regional and local airports, including Marseille Provence Airport.

4 On 7 May 2008, the Conseil d’État (Council of State, France) annulled the approved passenger charges applicable to Terminal mp2 as from 1 June 2006, as well as those applicable from 1 January 2007, owing to the accounting information used to calculate the charge not providing sufficient justification.

5 Following the annulment of the approved passenger charges applicable to Terminal mp2 as from 1 June 2006, as well as those applicable from 1 January 2007, the direction générale de l’aviation civile, rattachée au ministère de l’Écologie, du Développement durable et de l’Énergie (Directorate-General for Civil Aviation, part of the Ministry of Ecology, Sustainable Development and Energy) commissioned an audit firm to carry out a study, delivered in November 2008, on the methods for allocating costs and revenues and on the charges at Terminal mp1 and Terminal mp2. Based on that audit, the Marseille Provence Chamber of Commerce and Industry (‘the CCIMP’) decided on new passenger charges that were applicable retroactively.

6 By decision of 13 July 2011, addressed to the French Republic, the Commission initiated the procedure laid down in Article 108(2) TFEU and invited interested parties to submit their comments on the measures in question (‘the opening decision’).

7 The Commission received comments from the French Republic, the CCIMP, the applicant, Ryanair and Airport Marketing Services Ltd (‘AMS’), a wholly owned subsidiary of Ryanair.

8 On 20 February 2014, the Commission adopted Decision (EU) 2016/1698 concerning measures SA.22932 (11/C) (ex NN 37/07) implemented by France in favour of Marseille Provence Airport and airlines using the airport (OJ 2016 L 260, p. 1) (‘the contested decision).

9 In the contested decision, the Commission considered inter alia that Marseille Provence Airport had benefited from investment aid that was compatible with the internal market. It noted that Terminal mp2 and the aircraft parking area adjacent to it were not reserved for a particular airline. It considered that that terminal was therefore open to any company wishing to use it on condition that that company offer a limited level of service. It found that that terminal had launched a call for expressions of interest in using that airport and that, since it was not being operated to full capacity, that terminal was available to any interested airline. Moreover, it noted that the airlines also paid charges covering at least the incremental costs generated by each agreement.

10 In addition, the Commission examined the passenger charges applicable to Terminal mp2. In particular, it found that, in order to determine the profitability of the simplified-service terminal and the corresponding charges, a prudent operator would take into account all the aeronautical and non-aeronautical revenues, as well as the elasticity of traffic demand in relation to the aeronautical charges in question. It considered that ‘the difference between the passenger charge level and the cost of the passenger function, which [was] covered by the non-aeronautical revenue, [did] not therefore constitute an advantage granted to airlines, but [was] the result of the operator's underlying optimisation, which, on the contrary, is aimed at ensuring the profitability of the investment project’ (recital 369 of the contested decision). It concluded that the decision setting the charges for that terminal satisfied the market economy operator test.

11 Finally, the Commission examined the agreement to purchase advertising space concluded on 19 May 2006 by CCIMP and AMS (‘the AMS agreement’). That agreement was concluded for a term of 5 years, renewable once for the same period, without prior publicity or competitive tendering. The objective of that agreement was to publicise Marseille as a destination in order to attract high passenger numbers.

12 Based on the profitability study produced by the French Republic on the financial margins generated by Ryanair flights over the 2007-2021 period, which the CCIMP apparently used to make the decision on the AMS agreement, the Commission found that the average costs of that agreement per passenger of that airline made it possible to establish the profitability of the construction plan for Terminal mp2 as a whole. It concluded that, at any time, the charges applied to the airlines, taking into account the various reductions and the costs of that agreement, covered at least the additional costs associated with the use of Marseille Provence Airport by that airline.

Procedure and forms of order sought

13 By application lodged at the Court Registry on 19 December 2016, the applicant brought the present action.

14 By document lodged at the Court Registry on 23 March 2017, Aéroport Marseille Provence SA applied for leave to intervene in the present proceedings in support of the form of order sought by the Commission.

15 By documents lodged at the Court Registry on 26 March 2017, Ryanair and AMS applied for leave to intervene in the present proceedings in support of the form of order sought by the Commission.

16 By order of 29 May 2017, the President of the Sixth Chamber of the General Court granted those applications for leave to intervene. The interveners lodged their statements in intervention and the main parties lodged their observations thereon within the periods prescribed.

17 On a proposal from the Sixth Chamber, the Court decided, pursuant to Article 28 of the Rules of Procedure of the General Court, to assign the case to a Chamber sitting in extended composition.

18 Acting on a proposal from the Judge-Rapporteur, the General Court (Sixth Chamber, Extended Composition) decided to open the oral part of the procedure and, by way of measures of organisation of procedure pursuant to Article 89 of the Rules of Procedure, invited the parties to answer certain questions. The parties complied with those requests within the prescribed periods.

19 The parties presented oral argument at the hearing on 10 January 2019.

20 The applicant claims that the Court should:

- annul the contested decision;

- order the Commission to pay the costs.

21 The Commission, supported by the interveners, contends that the Court should:

- dismiss the action as inadmissible and, in any event, as unfounded;

- order the applicant to pay the costs.

Law

22 The Commission, supported by the interveners, maintains that the action is inadmissible on the ground, in essence, that the applicant does not have standing to bring proceedings. In particular, it submits that the applicant is not directly and individually concerned by the measures at issue and that it has not explained why the contested decision affects it by reason of certain attributes which are specific to it or by reason of circumstances in which it was differentiated from all other persons.

23 The applicant maintains that, contrary to what the Commission claims, its situation should distinguish it individually just as in the case of the addressee of the contested measure. With reference to the case-law, it considers that the admissibility...