Deutsche Lufthansa AG v European Commission.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2021:608
• Date: 15 July 2021
• Docket Number: C-453/19
• Celex Number: 62019CJ0453
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Fourth Chamber)

15 July 2021 (*)

(Appeal – State aid – Aid for airports and airlines – Decision classifying the measures in favour of Frankfurt Hahn airport as State aid compatible with the internal market and finding no State aid in favour of airlines using that airport – Inadmissibility of an action for annulment – Fourth paragraph of Article 263 TFEU – Natural or legal person not directly and individually concerned by the decision at issue – Effective judicial protection)

In Case C‑453/19 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 13 June 2019,

Deutsche Lufthansa AG, established in Cologne (Germany), represented by A. Martin-Ehlers, Rechtsanwalt,

appellant,

the other parties to the proceedings being:

European Commission, represented by T. Maxian Rusche and S. Noë, acting as Agents,

defendant at first instance,

Land Rheinland-Pfalz, represented by Professor C. Koenig,

Ryanair DAC, established in Swords (Ireland), represented by G. Berrisch, Rechtsanwalt, D. Vasbeck, avocat, and B. Byrne, Solicitor,

interveners at first instance,

THE COURT (Fourth Chamber),

composed of M. Vilaras, President of the Chamber, N. Piçarra, D. Šváby, S. Rodin (Rapporteur) and K. Jürimäe, Judges,

Advocate General: M. Szpunar,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after hearing the Opinion of the Advocate General at the sitting on 27 October 2020,

gives the following

Judgment

1 By its appeal, Deutsche Lufthansa AG asks the Court of Justice to set aside the judgment of the General Court of the European Union of 12 April 2019, Deutsche Lufthansa v Commission (T‑492/15, ‘the judgment under appeal’, EU:T:2019:252), by which the General Court dismissed as inadmissible its action for annulment of Commission 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, ‘the decision at issue’).

Background to the dispute and the decision at issue

2 The background to the dispute was set out by the General Court in the judgment under appeal as follows:

‘1 The [appellant], [Deutsche Lufthansa], is an airline established in Germany, whose main activity is transporting passengers. Its main airport base is that of Frankfurt-am-Main (Germany).

2 Frankfurt Hahn airport is located in Germany, in Land Rheinland-Pfalz (“the Land”), approximately 120 km west of the city of Frankfurt-am-Main and 115 km from Frankfurt Main airport. Until 1992, there was a military airbase at the site on which Frankfurt Hahn airport is located. That base was later converted into a civil airport. Holding Unternehmen Hahn GmbH & Co. KG (“Holding Hahn”), a public private partnership in which the Land participated, acquired ownership of the infrastructure from the Federal Republic of Germany on 1 April 1995.

3 On 1 January 1998, Flughafen Frankfurt/Main GmbH (“Fraport”), which was operating and managing the international Frankfurt Main airport, purchased 64.90% of the shares in Flughafen Hahn GmbH & Co. KG Lautzenhausen (“Flughafen Hahn”), the company operating Frankfurt Hahn airport.

4 In 1999, Frankfurt Hahn airport attracted its first low-cost carrier, Ryanair Ltd (now Ryanair DAC, “Ryanair”). The first agreement between Flughafen Hahn and Ryanair entered into force on 1 April 1999 (“the 1999 Ryanair agreement”). The 1999 Ryanair agreement had a duration of 5 years and related to the airport charges payable by Ryanair.

5 In August 1999, Fraport acquired 73.37% of the shares of Holding Hahn and 74.90% of the shares of its general partner Holding Unternehmen Hahn Verwaltungs GmbH.

6 On 31 August 1999, the Land and Fraport concluded an agreement in accordance with which Fraport undertook to enter into a profit and loss transfer agreement. That agreement was approved on the same date, confirmed by a notarial deed on 24 November 2000 and entered into force on 1 January 2001. Under that agreement, Fraport was entitled to all the profits generated by the operator of Frankfurt Hahn airport and, in return, was required to cover all the latter’s losses …

7 Subsequently, Holding Hahn and Flughafen Hahn merged to form Flughafen Hahn GmbH, now Flughafen Frankfurt-Hahn GmbH (“FFHG” …), 26.93% of the capital of which was held by the Land and 73.07% by Fraport.

8 Until 11 June 2001, 100% of the shares in Fraport were held by public shareholders. On that date, Fraport was floated on the stock exchange and 29.71% of its shares were sold to private shareholders, with 70.29% of the shares remaining with the public shareholders.

9 On 16 October 2001, the Land approved the schedule of airport charges for Frankfurt Hahn airport, which entered into force retroactively on 1 October 2001 …

10 On 14 December 2001 and 9 January 2002, respectively, Fraport and the shareholders of FFHG decided to increase the capital of FFHG to finance the most urgent part of an airport infrastructure improvement programme … [That] capital increase, in the amount of EUR 27 million, was subscribed by Fraport and the Land, which, on 9 January 2002, contributed EUR 19.7 million and EUR 7.3 million, respectively.

11 On 14 February 2002, a second agreement was concluded between FFHG and Ryanair … It replaced the 1999 Ryanair agreement.

12 On 27 November 2002, Land Hesse (Germany), Fraport and FFHG concluded an agreement on the development of Frankfurt Hahn airport. That agreement provided for a second capital increase of FFHG, at the time of which Land Hesse would become the third shareholder of FFHG.

13 On 22 March 2004, a shareholders’ agreement concerning the shareholdings of Fraport, the Land and Land Hesse in the capital of FFHG (“the shareholders’ agreement”) was prepared. Fraport, the Land and Land Hesse signed that agreement on 30 March 2005.

14 For the purpose of executing the shareholders’ agreement, a EUR 19.5 million capital increase of FFHG was agreed in order to continue the investment programme referred to in paragraph 10 above. Between 2004 and 2009, Fraport, the Land and Land Hesse injected, respectively, EUR 10.21 million, EUR 540 000 and EUR 8.75 million into FFHG in several instalments. In addition, the Land and Land Hesse undertook to inject an additional EUR 11.25 million [each] as a capital reserve, in accordance with a payment schedule extending to 2009.

15 Following the capital increase described in paragraph 14 above …, amounting to a total of EUR 42 million, Fraport held 65% of the shares of FFHG, as against 17.5% each for Land Hesse and the Land.

16 The shareholders’ agreement also provided that any further debt contracted by FFHG should be covered by Fraport, the Land and Land Hesse in proportion to their shareholdings in FFHG and that the 2001 profit and loss transfer agreement[, referred to in paragraph 6 above,] should be extended until 2014. In order to comply with those obligations, Fraport and FFHG entered into a new profit and loss transfer agreement on 5 April 2004 (“the 2004 profit and loss transfer agreement”). The 2004 profit and loss transfer agreement entered into force on 2 June 2004, following its approval at the general meeting of Fraport’s shareholders by the three-quarters majority required by the shareholders’ agreement. Under the terms of the 2004 profit and loss transfer agreement, Fraport undertook to cover all the losses incurred by FFHG between 2004 and 2009.

17 From 1997 to 2004, the Land paid direct grants to the operator of Frankfurt Hahn [airport] … The direct grants … paid until 2000 were intended to finance investments in airport infrastructure, whereas those paid from 2001 were intended to finance personnel costs for security checks. The Land collects an airport security tax from all departing passengers at Frankfurt Hahn airport, through the airlines using that airport, and transfers the entire revenue from that tax, as well as funds from its general budget, to the operator of Frankfurt Hahn airport as compensation for carrying out security checks …

18 On 4 November 2005, an amendment to the [agreement concluded between FFHG and Ryanair on 14 February 2002, referred to in paragraph 11 above,] was made.

19 Between 2003 and 2006, the Commission of the European Communities received several complaints concerning alleged State aid granted by Fraport, the Land and Land Hesse to Ryanair and FFHG. On 22 September 2003 and 1 June 2006, one of the complainants sent additional information to the Commission.

20 On 26 April 2006, a new schedule of airport charges for Frankfurt Hahn was approved by the Land … It entered into force on 1 June 2006.

21 By letters of 25 September 2006 and 9 February 2007, the Commission requested information from the Federal Republic of Germany, which complied with that request by letters of 20 December 2006 and 29 June 2007.

22 By letter of 17 June 2008, the Commission notified the Federal Republic of Germany of its decision to initiate the formal investigation procedure provided for in Article 88(2) [EC] …, in connection with State aid concerning the financing of [FFHG] and its relations with Ryanair … The decision inviting interested parties to submit their comments was published in the Official Journal of the European Union on 17 January 2009 (OJ 2009 C 12, p. 6).

23 On 31 December 2008, Fraport sold its entire shareholding in FFHG to the Land. As a result of that sale, first, the Land held a majority shareholding of 82.5% in FFHG, the remaining 17.5% still being held by Land Hesse, and, secondly, the 2004 profit and loss transfer agreement was terminated.

24 In the context of the formal investigation procedure, the Commission received comments from, inter alia, the [appellant] and Ryanair; those comments were communicated to the Federal Republic of Germany.

25 On 1 July 2009, the Federal Republic of Germany sent its...