Ryanair DAC v European Commission.

• Jurisdiction: European Union
• ECLI: ECLI:EU:T:2021:91
• Date: 17 February 2021
• Celex Number: 62020TJ0238
• Court: General Court (European Union)
• Docket Number: T-238/20

JUDGMENT OF THE GENERAL COURT (Tenth Chamber, Extended Composition)

17 February 2021 ( *1 )

(State aid – Air transport market in Sweden, from Sweden and to Sweden – Loan guarantees to support airlines amid the Covid-19 pandemic – Decision not to raise any objections – Temporary Framework for State aid measures – Measure intended to remedy a serious disturbance in the economy of a Member State – Free provision of services – Equal treatment – Proportionality – Criterion of holding a licence issued by the Swedish authorities – Failure to weigh the beneficial effects of the aid against its adverse effects on trading conditions and the maintenance of undistorted competition – Article 107(3)(b) TFEU – Ratio legis – Duty to state reasons)

In Case T‑238/20,

Ryanair DAC, established in Swords (Ireland), represented by E. Vahida, F.‑C. Laprévote, S. Rating and I.‑G. Metaxas-Maranghidis, lawyers,

applicant,

v

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

defendant,

supported by

French Republic, represented by E. de Moustier, C. Mosser, A. Daniel and P. Dodeller, acting as Agents,

and by

Kingdom of Sweden, represented by C. Meyer-Seitz, H. Eklinder, A. Runeskjöld, M. Salborn Hodgson, H. Shev, R. Shahsavan Eriksson and J. Lundberg, acting as Agents,

interveners,

APPLICATION under Article 263 TFEU for annulment of Commission Decision C(2020) 2366 final of 11 April 2020 on State Aid SA.56812 (2020/N) – Sweden – COVID-19: Loan guarantee scheme to airlines,

THE GENERAL COURT (Tenth Chamber, Extended Composition),

composed of M. van der Woude, President, A. Kornezov, E. Buttigieg (Rapporteur), K. Kowalik-Bańczyk and G. Hesse, Judges,

Registrar: S. Spyropoulos, Administrator,

having regard to the written part of the procedure and further to the hearing on 22 September 2020,

gives the following

Judgment

Background to the dispute

1 On 3 April 2020, the Kingdom of Sweden notified the European Commission of an aid measure in the form of a loan guarantee scheme for certain airlines (‘the aid scheme at issue’) in accordance with Article 108(3) TFEU. The aid scheme at issue aims to ensure that airlines which hold a licence issued by that Member State (‘the Swedish licence’) and which are important to secure connectivity in Sweden have sufficient liquidity to ensure that the disruptions caused by the Covid-19 pandemic do not undermine their viability and to preserve the continuity of economic activity during and after the current crisis. The aid scheme at issue will benefit all airlines which, on 1 January 2020, held a Swedish licence to conduct commercial activities in aviation under Article 3 of Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community (OJ 2008 L 293, p. 3), except for airlines which have non-scheduled passenger air services as their main activity. The maximum amount of the loan guarantees under that scheme will be 5 billion kronor (SEK), and the guarantee will concern investment and working capital loans, it will be granted until 31 December 2020 at the latest and the duration will be limited to a maximum of six years.

2 On 11 April 2020, the Commission adopted Decision C(2020) 2366 final on State Aid SA.56812 (2020/N) – Sweden – COVID-19: Loan guarantee scheme to airlines (‘the contested decision’), by which, after concluding that the measure at issue constituted State aid within the meaning of Article 107(1) TFEU, it assessed its compatibility with the internal market in the light of its communication 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 I, p. 1), and amended on 3 April 2020 (OJ 2020 C 112 I, p. 1) (‘the Temporary Framework’).

3 In that regard, first, the Commission notes that, pursuant to Regulation No 1008/2008, eligible airlines have their ‘principal place of business’ (see paragraph 26 below) in Sweden, and their financial situation was regularly monitored by the national licensing authority. Furthermore, the operation of scheduled passenger services by the beneficiaries of the measure at issue is likely to play a major role in the connectivity of the country. Therefore, the eligibility criteria for the measure are relevant in order to identify airlines that have a link with Sweden and play a role in securing the connectivity of Sweden, in line with the objective of the aid scheme at issue. Secondly, it considered that that scheme was necessary, appropriate and proportionate to remedy a serious disturbance in the Swedish economy and met all the relevant conditions set out in section 3.2 of the Temporary Framework entitled ‘Aid in the form of guarantees on loans’. Thus, the Commission concluded that the aid scheme at issue was compatible with the internal market pursuant to Article 107(3)(b) TFEU and therefore did not raise objections to it.

Procedure and forms of order sought by the parties

4 By document lodged at the Court Registry on 1 May 2020, the applicant brought the present action.

5 By document lodged at the Court Registry on the same date, the applicant applied for the present action to be decided under an expedited procedure in accordance with Articles 151 and 152 of the Rules of Procedure of the General Court. By decision of 27 May 2020, the General Court (Tenth Chamber) granted the request for an expedited procedure.

6 The Commission lodged the defence at the Court Registry on 15 June 2020.

7 Pursuant to Article 106(2) of the Rules of Procedure, the applicant submitted a reasoned request for a hearing on 22 June 2020.

8 On a proposal from the Tenth Chamber, the Court decided, pursuant to Article 28 of the Rules of Procedure, to refer the case to a Chamber sitting in extended composition.

9 By way of a measure of organisation of procedure, within the meaning of Article 89 of the Rules of Procedure, on 20 July 2020, the Court invited the applicant to reply in writing to two questions. The applicant complied with that request within the period prescribed.

10 By document lodged at the Court Registry on 20 July 2020, the French Republic sought leave to intervene in these proceedings in support of the form of order sought by the Commission. By document lodged at the Court Registry on 28 July 2020, the applicant requested, in accordance with Article 144(7) of the Rules of Procedure, that certain information concerning the number of bookings and the expected number of passengers contained in the application, in the abbreviated version of the application and in the annexes to those documents should not be disclosed to the French Republic. Accordingly, it attached a non-confidential version of the application, the abbreviated version of the application and their annexes.

11 In reply to the measure of organisation of procedure referred to in paragraph 9 above, the applicant confirmed on 5 August 2020 that it was withdrawing paragraphs 66 to 76 of the application, in the third part of the second limb of the first plea in law, and paragraphs 110 to 114 of the application, in the second limb of the third plea in law.

12 By order of the same date, the President of the Tenth Chamber (Extended Composition) of the Court granted the French Republic leave to intervene and provisionally limited disclosure of the application, the abbreviated version of the application and their annexes to the non-confidential versions produced by the applicant, pending the submission of any observations by the French Republic on the request for confidential treatment.

13 By a measure of organisation of procedure of 6 August 2020, the French Republic was permitted, pursuant to Article 154(3) of the Rules of Procedure, to lodge a statement in intervention.

14 By document lodged at the Court Registry on 11 August 2020, the Kingdom of Sweden sought leave to intervene in the present proceedings in support of the form of order sought by the Commission. By document lodged at the Court Registry on 17 August 2020, the applicant requested, in accordance with Article 144(7) of the Rules of Procedure, that the information referred to in paragraph 10 above should not be disclosed to the Kingdom of Sweden.

15 By order of 21 August 2020, the President of the Tenth Chamber (Extended Composition) of the Court granted the Kingdom of Sweden leave to intervene and provisionally limited disclosure of the application, the abbreviated version of the application and their annexes to the non-confidential versions produced by the applicant, pending the submission of any observations by the Kingdom of Sweden on the request for confidential treatment. By a measure of organisation of procedure of the same date, the Kingdom of Sweden was permitted, pursuant to Article 154(3) of the Rules of Procedure, to lodge a statement in intervention.

16 On the same day, the French Republic submitted to the Court Registry its statement in intervention, without raising any objection in relation to the applicant’s request for confidential treatment.

17 On 7 September 2020, the Kingdom of Sweden submitted to the Court Registry its statement in intervention, without raising any objection in relation to the applicant’s request for confidential treatment.

18 The applicant claims that the Court should: – annul the contested decision; – order the Commission to pay the costs.

19 The Commission contends that the Court should: – ...