Judgment of the General Court Eighth Chamber, Extended Composition, 8 February 2023, Carpatair v Commission, T‑522/20

• Date: 08 February 2023
• Year: 2023

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Judgment of the General Court (Eighth Chamber, Extended Composition), 8 February 2023,

Carpatair v Commission, T‑522/20

Link to the full text of the judgment

State aid – Aviation sector – Measures implemented by Romania in favour of Timișoara Airport – Measures

implemented by Timișoara Airport in favour of Wizz Air and airlines using that airport – Decision finding, in

part, that there was no State aid in favour of Timișoara Airport and airlines using that airport – Airport

charges – Action for annulment – Regulatory act – Individual concern – Substantial effect on competitive

position – Direct concern – Interest in bringing proceedings – Admissibility – Article 107(1) TFEU – Selective

nature – Advantage – Private operator test

Timișoara International Airport, located in the west of Romania, is operated by Societății Naționale

‘Aeroportul Internațional Timișoara – Traian Vuia’ SA (‘AITTV’), a joint stock company in which the

Romanian State holds 80% of the shares.

In preparation for the increase in traffic that was expected to result from Romania’s accession to the

European Union in 2007, and in order to meet the security requirements for acceding to the

Schengen area, AITTV received financing from the Romanian State for the construction of a terminal

for non-Schengen flights and for security equipment.

Furthermore, in 2008, as part of a strategy intended to attract low-cost airlines and to increase the

overall profitability of the airport, AITTV signed agreements with Wizz Air Hungary Légiközlekedési Zrt.

(‘Wizz Air’), a Hungarian low-cost airline, determining the principles of their cooperation as well as the

terms and conditions for the use of the airport infrastructure and services by Wizz Air (‘the 2008

agreements’). Two of those agreements were amended in 2010 by way of a new discount scheme

agreed between Wizz Air and AITTV (‘the 2010 amendment agreements’). Under the Aeronautical

Information Publications (‘AIPs’) of 2007, 2008 and 2010, Wizz Air also received discounts and rebates

on airport charges.

In 2010, the Romanian regional airline Carpatair SA submitted a complaint to the European

Commission challenging aid granted by the Romanian authorities to Timișoara International Airport in

favour of Wizz Air.

By decision of 24 February 2020 (‘the contested decision’), the Commission considered, first, that the

public financing provided in the period 2007-2009 to AITTV for the non-Schengen terminal

development, the improvement of the taxiway and the extension of the apron and the lighting

equipment, constitutes State aid which is compatible with the internal market within the meaning of

Article 107(3)(c) TFEU.

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Secondly, the Commission found that the public financing of the access road

and the development of the parking area in 2007 and for the security equipment in 2008, the airport

charges in the 2007 AIP, 2008 AIP and 2010 AIP, and the 2008 agreements with Wizz Air, including the

2010 amendment agreements, do not constitute State aid within the meaning of Article 107(1) TFEU.

Carpatair SA brought an action for the annulment of that decision in so far as the Commission found

that neither the discounts and rebates on the airport charges in the 2010 AIP nor the 2008

agreements, as amended in 2010 (‘the measures at issue’), constitute State aid. In upholding that

action, the General Court finds that the Commission committed several errors of law in its

examination of whether those measures were selective and of whether they conferred an advantage.

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According to that provision, aid to facilitate the development of certain economic activities or of certain economic areas may be considered

to be compatible with the internal market, where such aid does not adversely affect trading conditions to an extent contrary to the common

interest.