Judgment of the General Court Third Chamber of 30 November 2022, Austria v Commission, T-101/18

• Date: 30 November 2022
• Year: 2022

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the measures at issue, the Court of Justice examines whether that additional reasoning on the part of

the General Court is capable of founding the operative part of the judgments under appeal, despite

the errors of law identified previously.

After stating that the private acquirer test, like the private vendor test of which it is the counterpart,

constitutes one of the various tests which give specific expression to the market economy operator

principle, the Court of Justice observes, in particular, that, pursuant to that test, the General Court

considered that Volotea and easyJet had benefited from an advantage under the contracts concluded

with the airport operators for the provision of air transport, marketing and advertising services on the

ground that those contracts had not been preceded by a tender procedure or an equivalent

procedure.

Although it follows from the settled case-law of the Court that, where a Member State decides to sell

or acquire goods or services directly from one or more private undertakings, the holding of a tender

procedure allows for the presumption, in certain conditions, that the contracts or other acts which are

concluded to that end following that procedure reflect normal market conditions, it also follows from

that case-law that the holding of such a procedure does not constitute the sole method of ruling out

the existence of an advantage for the purpose of Article 107(1) TFEU, and that this is particularly the

case where the State does not carry out the sale or acquisition of goods or services to or from private

undertakings directly, but does so through the intermediary of other private undertakings that are

not obliged to make use of a tender procedure. Furthermore, whichever method is used, the question

of whether such an advantage must be ruled out or, conversely, found to exist requires an

assessment of whether or not the contracts or other acts providing for that sale or acquisition reflect

normal market conditions.

In the light of those considerations, the Court of Justice finds that the General Court erred in law in

finding the existence of an advantage in favour of Volotea and easyJet on the ground that the

contracts concluded with the airport operators had not been preceded by the holding of a tender

procedure or an equivalent procedure. It also observes that the General Court did not carry out an

appropriate examination of whether those contracts reflect normal market conditions.

On those grounds, the Court upholds the complaints by Volotea and easyJet alleging an infringement

of Article 107(1) TFEU and sets aside the judgments under appeal.

Since the state of the proceedings permits judgment to be given, the Court proceeds to dispose of the

case and, in the third and final place, examines the complaints put forward by Volotea and easyJet in

support of their respective actions for annulment of the decision at issue.

In that regard, the Court states that the Commission made a first error of law by rejecting – on

grounds that were based on the public policy objectives pursued by the Region, the private character

of the airport operators, and the form that those measures took – the applicability of the market

economy operator principle in order to examine the existence of an advantage, for the purpose of

Article 107(1) TFEU. Next, it observes that the Commission made a second error of law by accepting

the existence of such an advantage without assessing, in an overall and concrete manner, whether

the Region and the airport operators had sought to acquire the services at issue under normal market

conditions.

In the light of those considerations, the Court also annuls the decision at issue, owing to an

infringement of Article 107(1) TFEU, to the extent that it concerns Volotea and easyJet.

Judgment of the General Court (Third Chamber) of 30 November 2022, Austria v

Commission, T-101/18

Link to the judgment as published in extract form

State aid – Nuclear industry – Aid planned by Hungary for the development of two new nuclear reactors at

the Paks site – Decision declaring the aid compatible with the internal market subject to compliance with

certain commitments – Article 107(3)(c) TFEU – Compliance of the aid with EU law other than State aid

law – Inextricable link – Promotion of nuclear energy – First paragraph of Article 192 of the Euratom