Opinion of Advocate General Pikamäe delivered on 9 March 2023.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:195
• Date: 09 March 2023
• Celex Number: 62021CC0466
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

PIKAMÄE

delivered on 9 March 2023 (1)

Case C‑466/21 P

Land Rheinland-Pfalz

v

Deutsche Lufthansa AG,

European Commission

(Appeal – State aid – Aviation sector – Operational aid granted by Germany to Frankfurt-Hahn airport – Decision not to raise objections – Action for annulment – Status as an ‘interested party’ – Safeguard of procedural rights – Concept of ‘overall scenario’)

1. By its appeal, Land Rheinland-Pfalz (Land of Rhineland-Palatinate, Germany; ‘the Land’) seeks the setting aside of the judgment of the General Court of the European Union of 19 May 2021, Deutsche Lufthansa v Commission (Case T‑218/18, not published, EU:T:2021:282; ‘the judgment under appeal’), by which the General Court annulled Commission Decision C(2017) 5289 final of 31 July 2017 on State aid SA.47969 (2017/N) implemented by Germany concerning operating aid granted to Frankfurt-Hahn airport (‘the decision at issue’).

2. In the context of the present case, that judgment forms the subject matter of two cross-appeals, by which the European Commission and Deutsche Lufthansa AG (‘DLH’) seek, respectively, to have that judgment set aside and to have it set aside in so far as it rejected the second complaint in the first part of the single plea put forward by DLH at first instance.

3. The Court of Justice is once again asked to rule on the issue of locus standi to bring proceedings against a decision by which the Commission decides to close the State aid administrative procedure on the ground that the aid does not give rise to any doubts as to its compatibility with the internal market. In that context, the Court is called upon to rule on the scope to be given to the concept of ‘interested party’ and on the circumstances in which such a party may be regarded as having relied, by its appeal, on an infringement of its procedural rights. In addition, the Court of Justice must resolve, inter alia, the issue of the substantive legality of the General Court’s use of the concept of ‘overall scenario’ in order to identify whether the aid under examination was transferred to another undertaking by the direct beneficiary of the aid. At the request of the Court of Justice, this Opinion will address only those legal issues.

I. Background to the dispute

4. On 7 April 2017, the Federal Republic of Germany notified the Commission of its intention to grant operating aid to Frankfurt-Hahn airport, on the basis that the airport was loss-making (‘the aid at issue’). That airport is operated by Flughafen Frankfurt-Hahn GmbH (‘FFHG’).

5. By the decision at issue, the Commission decided, in essence, that there was no need to initiate the formal investigation procedure under Article 108(2) TFEU since, although the measure constituted State aid within the meaning of Article 107(1) TFEU, it was compatible with the internal market under Article 107(3)(c) TFEU. In particular, in the decision at issue the Commission stated inter alia that there were no other airports in the catchment area of Frankfurt-Hahn airport.

6. Prior to the decision at issue, the Commission adopted two other decisions relating to measures taken by the Federal Republic of Germany for the benefit of Frankfurt-Hahn airport and Ryanair. The first of those decisions is Decision (EU) 2016/788 of 1 October 2014 on the State aid SA.32833 (11/C) (ex 11/NN) implemented by Germany concerning the financing arrangements for Frankfurt-Hahn airport put into place in 2009 to 2011 (OJ 2016 L 134, p. 1), which formed the subject matter of the order of 17 May 2019, Deutsche Lufthansa v Commission (T‑764/15, not published, EU:T:2019:349). The second is Decision (EU) 2016/789 of 1 October 2014 on the State aid SA.21121 (C29/08) (ex NN 54/07) implemented by Germany concerning the financing of Frankfurt-Hahn airport and the financial relations between the airport and Ryanair (OJ 2016 L 134, p. 46), which formed the subject matter of the judgment of 12 April 2019, Deutsche Lufthansa v Commission (T‑492/15, EU:T:2019:252). The appeals brought against that order and that judgment, respectively, were dismissed by the judgments of 15 July 2021, Deutsche Lufthansa v Commission (C‑453/19 P, EU:C:2021:608), and of 20 January 2022, Deutsche Lufthansa v Commission (C‑594/19 P, EU:C:2022:40).

7. Moreover, on 26 October 2018, the Commission initiated the formal investigation procedure, on the basis of a complaint received from the complainant, registered as Case SA.43260, concerning other measures in favour of Frankfurt-Hahn airport and Ryanair (‘the Hahn IV procedure’).

II. The procedure before the General Court and the judgment under appeal

8. By application lodged at the Registry of the General Court on 29 March 2018, DLH brought an action for annulment of the decision at issue.

9. DLH relied, in essence, on a single plea in law before the General Court.

10. By the judgment under appeal, the General Court held that the Commission had failed to take proper account of all the criteria concerning the catchment area of Frankfurt-Hahn airport which it was required to assess under the Guidelines on State aid to airports and airlines (OJ 2014 C 99, p. 3) and that, accordingly, the Commission’s insufficient and incomplete analysis had not enabled it to overcome all doubts as to the compatibility of the aid at issue with the internal market. The General Court thus partially upheld DLH’s single plea in law and annulled the decision at issue.

III. The procedure before the Court of Justice and the forms of order sought

A. Forms of order sought in the main appeal

11. By its appeal, the Land asks the Court to set aside the judgment under appeal, definitively dismiss the action against the decision at issue and order DLH to pay the costs relating to the proceedings at first instance and on appeal.

12. DLH asks the Court to dismiss the appeal as inadmissible or, in any event, unfounded and order the Land to pay the costs.

13. The Commission asks the Court to set aside the judgment under appeal, declare the action at first instance inadmissible or, in the alternative, unfounded and order DLH to pay the costs relating to the proceedings at first instance and on appeal.

B. Forms of order sought in the cross-appeal brought by DLH

14. By its cross-appeal, DLH asks the Court to set aside the judgment under appeal in so far as it rejects the second complaint in the first part of its single plea and order the Land to pay the costs.

15. The Land asks the Court to dismiss DLH’s cross-appeal, set aside the judgment under appeal, definitively dismiss the action against the decision at issue and order DLH to pay the costs relating to the proceedings at first instance and on appeal.

16. The Commission requests that DLH’s cross-appeal be dismissed as inadmissible or, in the alternative, unfounded, and that DLH be ordered to pay the costs relating to the proceedings at first instance and on appeal.

C. Forms of order sought in the cross-appeal brought by the Commission

17. By its cross-appeal, the Commission asks the Court to set aside the judgment under appeal, declare the action at first instance inadmissible or, in the alternative, unfounded and order DLH to pay the costs relating to the proceedings at first instance and on appeal.

18. DLH asks the Court to dismiss the Commission’s cross-appeal as inadmissible or, in any event, unfounded and order the Commission to pay the costs.

19. The Land asks the Court to allow the Commission’s cross-appeal, set aside the judgment under appeal, definitively dismiss the action against the decision at issue and order DLH to pay the costs relating to the proceedings at first instance and on appeal.

20. DLH, the Land and the Commission presented oral argument at the hearing held on 30 November 2022.

IV. Analysis

21. At the request of the Court, this Opinion concerns only the first grounds of the Land’s main appeal and of the Commission’s cross-appeal, which allege an error of law and a failure to state reasons in the judgment under appeal as regards the determination of whether DLH has locus standi in the present case, and the second ground of DLH’s cross-appeal, which alleges that the General Court incorrectly used the concept of ‘overall scenario’ in identifying whether the aid under examination was transferred to Ryanair by FFHG, and thus in assessing whether there was any doubt as to the compatibility of the aid at issue with the internal market.

A. The ground of appeal alleging that DLH does not have locus standi (first ground of the main appeal and first ground of the Commission’s cross-appeal)

1. Summary of the judgment under appeal and of the arguments of the parties

22. The reasoning of the General Court which culminated in the recognition that DLH has locus standi, and therefore in the rejection of the plea that the action brought by DLH was inadmissible, is criticised by both the Land and the Commission in relation to the interpretation of the concept of ‘interested party’ and solely by the Land as regards DLH’s reliance on its procedural rights.

23. In paragraphs 39 to 56 of the judgment under appeal, the General Court held, in essence, that DLH was an ‘interested party’ within the meaning of Article 1(h) of Regulation (EU) 2015/1589 (2) for two reasons. First, in paragraph 50 of the judgment under appeal, the General Court stated that the aid at issue, which was granted to Frankfurt-Hahn airport, could affect the competitive position of Frankfurt Main airport, which is DLH’s main hub, and thereby affect the interests of that airline. Secondly, in paragraphs 51 to 54 of that judgment, the General Court pointed out that, by allowing Frankfurt-Hahn airport to continue its activities, the aid at issue enabled Ryanair to maintain the competitive pressure it exerts on DLH from that airport.

24. In paragraphs 61 to 64 of the judgment under appeal, the General Court held, in essence, that it was apparent from an...