Judgment of the General Court Tenth Chamber, Extended Composition, 10 May 2023, Ryanair and Condor Flugdienst v Commission Lufthansa; COVID-19, T-34/21 and T-87/21

• Date: 10 May 2023
• Year: 2023

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for that person to contact the legal or commercial department of its undertaking to inform them of

the receipt of those documents.

In any event, even if enercity had sent back the completed questionnaire, that mere correspondence

was not sufficient for its participation in the administrative procedure to be classified as active and to

distinguish enercity individually for the purposes of the fourth paragraph of Article 263 TFEU.

Lastly, even if enercity's request to the hearing officer to be recognised as an interested third party is

evidence of its will to participate in the procedure relating to the concentration at issue, the Court also

does not accept that such a request may establish the 'active' nature of its participation, since such a

classification requires the existence of acts of the undertaking concerned which may have influenced

the procedure at issue to be established.

In those circumstances, from which it is apparent that enercity did not actively participate in the first

concentration operation and, moreover, having regard to the absence of specific circumstances

relating to effects on its market position, the General Court considers that it is not individually

concerned by the decision at issue. Accordingly, the Court concludes that energycity has not

demonstrated that it has standing to bring proceedings and, consequently, dismisses its action as

inadmissible.

2. STATE AID

Judgment of the General Court (Tenth Chamber, Extended Composition), 10 May 2023,

Ryanair and Condor Flugdienst v Commission (Lufthansa; COVID-19), T-34/21 and T-87/21

Link to the full text of the judgment

State aid – German air transport market – Aid granted by Germany to an airline in the context of the

COVID-19 pandemic – Recapitalisation of Deutsche Lufthansa – Decision not to raise any objections –

Temporary Framework for State aid measures – Actions for annulment – Locus standi – Substantial effect

on competitive position – Admissibility – Significant market power – Additional measures to preserve

effective competition on the market – Obligation to state reasons

On 12 June 2020, the Federal Republic of Germany notified the European Commission of individual

aid in the form of a recapitalisation of EUR 6 billion (‘the measure at issue’) granted to Deutsche

Lufthansa AG (‘DLH’). The recapitalisation, part of a wider series of support measures for the

Lufthansa Group,

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was intended to restore the balance sheet position and liquidity of the

undertakings in that group in the exceptional situation caused by the COVID-19 pandemic.

The measure at issue consisted of three different elements, namely an equity participation of

approximately EUR 300 million, a silent participation that is not convertible into shares of

approximately EUR 4.7 billion (‘Silent Participation I’) and a silent participation of EUR 1 billion with the

features of a convertible debt instrument (‘Silent Participation II’).

Without initiating the formal investigation procedure provided for in Article 108(2) TFEU, the

Commission classified the measure at issue as State aid that was compatible with the internal

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DLH is the parent company of the Lufthansa Group, which, inter alia, comprises Lufthansa Passenger Airlines, Brussels Airlines SA/NV,

Austrian Airlines AG, Swiss International Air Lines Ltd and Edelweiss Air AG.