Freistaat Sachsen and Land Sachsen-Anhalt (T-443/08) and Mitteldeutsche Flughafen AG and Flughafen Leipzig-Halle GmbH (T-455/08) v European Commission.

• Jurisdiction: European Union
• Celex Number: 62008TJ0443
• ECLI: ECLI:EU:T:2011:117
• Docket Number: T-455/08,T-443/08
• Date: 24 March 2011
• Court: General Court (European Union)
• Procedure Type: Recurso de anulación - infundado

JUDGMENT OF THE GENERAL COURT (Eighth Chamber)

24 March 2011(*)

(State aid – Aid for Leipzig-Halle Airport – Funding of investments relating to the construction of the new southern runway – Decision declaring aid compatible with the common market – Actions for annulment – No interest in bringing proceedings – Inadmissibility – Concept of ‘undertaking’ – Concept of ‘economic activity’ – Airport infrastructure)

In Joined Cases T‑443/08 and T‑455/08,

Freistaat Sachsen (Germany),

Land Sachsen-Anhalt (Germany),

represented by U. Soltész and P. Melcher, lawyers,

applicants in Case T‑443/08,

Mitteldeutsche Flughafen AG, established in Leipzig-Halle (Germany),

Flughafen Leipzig-Halle GmbH, established in Leipzig-Halle,

represented by M. Núñez-Müller, lawyer,

applicants in Case T‑455/08,

supported by

Federal Republic of Germany, represented by M. Lumma and B. Klein, acting as Agents,

Arbeitsgemeinschaft Deutscher Verkehrsflughäfen eV (ADV), represented by L. Giesberts, lawyer,

interveners,

v

European Commission, represented by K. Gross, B. Martenczuk and E. Righini, acting as Agents,

defendant,

APPLICATION for partial annulment of Commission Decision 2008/948/EC of 23 July 2008 on measures by Germany to assist DHL and Leipzig-Halle Airport (OJ 2008 L 346, p. 1),

THE GENERAL COURT (Eighth Chamber),

composed of M.E. Martins Ribeiro, President, S. Papasavvas (Rapporteur) and A. Dittrich, Judges,

Registrar: C. Heeren, Administrator,

having regard to the written procedure and further to the hearing on 2 July 2010,

gives the following

Judgment

Background

1 The DHL group (‘DHL’) is one of the principal groups in the express parcels sector. It is 100% owned by Deutsche Post AG.

2 After negotiating with several airports, DHL decided, in 2005, to move its European air freight hub from Brussels (Belgium) to Leipzig-Halle (Germany) from 2008.

3 Flughafen Leipzig-Halle GmbH (‘FLH’) is a subsidiary of Mitteldeutsche Flughafen AG (‘MF’). MF holds a participation of 94% in FLH. The other shareholders of FLH are Land Sachsen (5.5%), and Landkreis Nordsachsen (0.25%) and the town of Schkeuditz (0.25%). The other shareholders of MF are Land Sachsen (76.64%), Land Sachsen-Anhalt (18.54%), and the cities of Dresden (2.52%), Halle (0.2%) and Leipzig (2.1%). MF has no private sector shareholders.

4 On 4 November 2004, MF decided to build a new southern runway (the ‘southern runway’). It was to be financed by a capital contribution of EUR 350 million to MF or FLH by their public shareholders (the ‘capital contribution’).

5 On 21 September 2005, FLH, MF and DHL Hub Leipzig GmbH signed a framework agreement (the ‘Framework Agreement’). Under the Framework Agreement, FLH is obliged to construct the southern runway, and to honour further assurances for the duration of the agreement. Among those assurances is, inter alia, a guarantee of continuous air access, 24 hours a day and 7 days a week, on the southern runway and a guarantee that at least 90% of DHL’s air traffic could be carried out at any time using that runway. The framework agreement sets out what conditions FLH and MF guarantee to fulfil prior to the construction and operation of the new hub and subsequently for the operation of it. The framework agreement also includes other agreements on the terms of operation, airport fees, and the lease of land. With regard to guarantees subsequent to the operation of the new hub, the framework agreement provides that if FLH, after the entry into service of the hub, cannot fulfil the operating conditions which it contains, FLH and MF are required to compensate DHL Hub Leipzig for all damage and losses which it suffers. If DHL Hub Leipzig is substantially limited in its operations, it will also have the right to terminate the contract and claim compensation for all direct and indirect costs of moving to an alternative airport. If DHL Hub Leipzig had to relocate to another airport as a result of night flights being banned by the regulatory authorities, FLH could be liable to compensate DHL.

6 On 21 December 2005, Land Sachsen issued a comfort letter in favour of FLH and DHL Hub Leipzig (the ‘comfort letter’). The letter is intended to guarantee FLH’s performance of its financial undertakings during the period of the framework agreement and commits Land Sachsen to pay compensation to DHL Hub Leipzig if Leipzig-Halle Airport could no longer be used as intended.

7 On 5 April 2006, the Federal Republic of Germany notified the Commission, pursuant to Article 2(1) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88] of the EC Treaty (OJ 1999 L 83, p. 1), of the framework agreement and the comfort letter.

8 On 27 April 2006, the Commission requested further information to which the German authorities replied on 24 July 2006.

9 Meetings between the Commission services, FLH, MF, DHL, and the German authorities took place on 26 July and on 21 August 2006.

10 By letter dated 23 November 2006, the Commission informed the Federal Republic of Germany of its decision to initiate the procedure under Article 88(2) EC. That procedure dealt with the framework agreement, the comfort letter and the equity contribution. That decision and the invitation to interested parties to submit their comments on the proposed aid were published in the Official Journal of the European Union of 2 March 2007 (OJ 2007 C 48, p. 7).

11 The Federal Republic of Germany transmitted its comments on 23 February 2007. The Commission received comments on the subject from interested parties. It transmitted the comments to the German authorities by letter dated 16 May 2007, giving them the opportunity to respond to the comments within one month. The Commission received the German authorities’ observations by letter dated 13 June 2007.

12 At the request of the Federal Republic of Germany, meetings took place on 18 June 2007 and on 25 September 2007. Those meetings were followed by the dispatch by the German authorities of additional information, as requested by the Commission, on 19 October 2007 and on 7 and 18 December 2007, as well as on 17 March and 9 April 2008.

Decision

13 On 23 July 2008, the Commission adopted Decision 2008/948/EC on measures by Germany to assist DHL and Leipzig-Halle Airport (OJ 2008 L 346, p. 1, ‘the Decision’).

14 With regard to the capital contribution, the Commission considered, in the Decision, that the State aid, amounting to EUR 350 million, which Germany planned to grant to FLH for the construction of a new runway and related airport infrastructure was compatible with the common market under Article 87(3)(c) EC.

15 With regard to the Framework Agreement and the comfort letter, the Commission considered, that, on the one hand, the unlimited warranties granted by the Framework Agreement and, on the other, the comfort letter constituted State aid within the meaning of Article 87(1) EC because Land Sachsen, MF, and FHL hedged business risks for DHL at terms which a private investor operating in normal conditions of a market economy (‘a private investor’) would not have accepted. As DHL has already benefited from the maximum amount of investment aid permissible under Article 87(3)(a) EC, the Commission considered that the unlimited warranties granted by the Framework Agreement and the comfort letter have to be considered as incompatible with the common market.

16 The operative part of the Decision reads as follows:

‘Article 1

The State aid which [the Federal Republic of] Germany is planning to implement amounting to EUR 350 million in relation to the construction of a new runway and related airport infrastructure at Leipzig-Halle Airport is compatible with the common market under Article 87(3)(c) [EC].

Article 2

The State aid which [the Federal Republic of] Germany is planning to implement by granting the comfort letter in favour of DHL is incompatible with the common market. The aid may accordingly not be implemented.

Article 3

The State aid which [the Federal Republic of] Germany granted to DHL in the form of unlimited warranties (according to sections 8 and 9 of the Framework Agreement) is incompatible with the common market. These unlimited warranties granted by the Framework Agreement must accordingly be abolished.

Article 4

1. [The Federal Republic of] Germany shall recover the part of the aid referred to in Article 3 which has already been put at the disposal of DHL (i.e. the warranty fee for the period from 1 October 2007 until the abolition of the unlimited warranties).

…’

Facts subsequent to the Decision

17 On 18 and 27 November 2008, the shareholders of MF and FLH entered into agreements amounting to EUR 350 million for the financing of the southern runway.

18 By letter of 23 December 2008, the German authorities notified those agreements to the Commission.

19 That notification was registered under reference number 665/2008.

20 On 30 September 2009, following an exchange of correspondence and a meeting with the German authorities, the Commission adopted Decision C (2009) 7185, concerning State aid No 665/2008 (Germany – Leipzig-Halle Airport) in which it stated that the measure which had been notified did not constitute new aid within the meaning of Article 1(c) of Regulation No 659/1999. In substance, it considered, on the one hand, that since the German authorities had confirmed that the notification related to the same financing measures which had been approved by the Decision, that notification concerned aid which had already been authorised within the meaning of Article 1(b)(ii) of that regulation and, on the other hand, that the notification did not concern the alteration of existing aid within the meaning of Article 4(1) of the regulation.

Procedure

21 By applications lodged at the Court Registry on 6 October 2008, the applicants, Freistaat Sachsen, Land Sachsen-Anhalt, MF and...