JUDGMENT OF THE GENERAL COURT (Ninth Chamber)
5 February 2015 (*) (1)
(State aid — Irish tax on air passengers — Lower rate for destinations no more than 300 km from Dublin — Decision declaring the aid incompatible with the internal market and ordering its recovery — Advantage — Selective nature — Identification of the beneficiaries of the aid — Article 14 of Regulation (EC) No 659/1999 — Obligation to state reasons)
In Case T‑473/12,
Aer Lingus Ltd, established in Dublin (Ireland), represented by K. Bacon, D. Scannell, D. Bailey, Barristers, and A. Burnside, Solicitor,
applicant,
v
European Commission, represented by L. Flynn, D. Grespan and T. Maxian Rusche, acting as Agents,
defendant,
supported by
Ireland, represented by E. Creedon, A. Joyce and J. Quaney, acting as Agents, assisted by E. Regan SC, and B. Doherty, Barrister,
intervener,
APPLICATION for annulment of Commission Decision 2013/199/EU of 25 July 2012 on State aid Case SA.29064 (11/C, ex 11/NN) — Differentiated air travel tax rates implemented by Ireland (OJ 2013 L 119, p. 30),
THE GENERAL COURT (Ninth Chamber),
composed of G. Berardis (Rapporteur), President, O. Czúcz and A. Popescu, Judges,
Registrar: J. Plingers, Administrator,
having regard to the written procedure and further to the hearing on 4 June 2014,
gives the following
Judgment
Background to the dispute
1 The applicant, Aer Lingus Ltd, is an airline established in Ireland, with bases in Ireland (Dublin, Cork and Shannon airports) and in the United Kingdom (London Gatwick, London Heathrow and Belfast airports). It operates domestic flights within Ireland and international flights from Ireland and the United Kingdom to 70 destinations in Ireland, the United Kingdom, Continental Europe and the United States.
2 Section 55 of the Finance Act (No 2) 2008 (‘the Finance Act’) introduced an excise duty, known as the air travel tax (‘ATT’), payable as from 30 March 2009, the date on which the Finance Act came into force.
3 The Finance Act provides that the ATT is to be charged directly to airline operators in respect of every departure of a passenger on an aircraft from an airport situated in Ireland (with the exception of airports carrying fewer than 10 000 passengers a year, and subsequently, as from 3 June 2009, 50 000 passengers a year) and becomes due when a passenger departs from an airport on an aircraft capable of carrying more than 20 passengers and not used for State or military purposes. While the tax is intended ultimately to be passed on to passengers through the ticket price, it is the airline operators that are accountable for it and liable to pay it.
4 When it was introduced, the ATT was levied on the basis of the distance between the airport of departure and the airport of arrival, at the rate of EUR 2 in the case of a flight from an airport to a destination no more than 300 km from Dublin airport and EUR 10 in all other cases.
5 On 21 July 2009, the European Commission registered two separate complaints, lodged by a competitor of the applicant, one pursuant to Article 20(2) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] (OJ 1999 L 83, p. 1), the other pursuant to Article 56 TFEU and Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community (Recast) (OJ 2008 L 293, p. 3), concerning several aspects of the ATT implemented by Ireland.
6 In response to the second complaint, the Commission first initiated an investigation regarding possible infringement of Article 56 TFEU on freedom to provide services, and of Regulation No 1008/2008. A letter of formal notice was issued by the Commission to the Irish authorities on that basis on 18 March 2010 (‘the letter of formal notice’). Following that letter of formal notice, the tax rates were changed, so that, from 1 March 2011, a single tax rate of EUR 3 was applied to all departures regardless of the distance travelled. The Commission’s investigation relating to Article 56 TFEU and to Regulation No 1008/2008 was therefore concluded.
7 The first complaint, concerning the application of the State aid rules, objected to, inter alia, the fact that the lower rate (EUR 2 instead of EUR 10) mainly benefited domestic airlines such as Aer Arann, which operated the majority of their flights to destinations no more than 300 km from Dublin airport. That complaint also stated that the flat-rate amount of the tax was discriminatory since it represented a significantly higher proportion of the ticket price for low-fare airlines than for traditional airlines. Lastly, it was alleged that the non-application of the ATT to transit and transfer passengers constituted unlawful State aid to the advantage of the airlines Aer Lingus and Aer Arann, because those companies had a relatively high proportion of passengers and flights in those categories.
8 By letter of 13 July 2011, the Commission notified Ireland of its decision to open the formal investigation procedure laid down in Article 108(2) TFEU in respect of the lower national rate of ATT for the period between 30 March 2009 and 1 March 2011. The Commission asked the Irish authorities to forward a copy of the decision to the beneficiaries.
9 By a decision of 13 July 2011, a summary of which was published in the Official Journal of the European Union (OJ 2011 C 306, p.10), adopted at the end of the preliminary examination, the Commission found, inter alia, that non-application of the ATT to transfer and transit passengers and the use of a flat‑rate tax did not constitute State aid within the meaning of Article 107(1) TFEU. However, it considered that the application of a lower national rate between 30 March 2009 and 1 March 2011 appeared to constitute State aid, raising questions as to compatibility with the internal market, inasmuch as it unlawfully benefited domestic flights as opposed to cross-border flights. It therefore opened the formal investigation procedure in respect of this latter measure, inviting the parties concerned to submit their observations on the measure at issue.
10 The Irish authorities submitted their observations on 15 September 2011. The applicant did not submit observations at that stage of the procedure.
11 On 25 July 2012, the Commission adopted Decision 2013/199/EU concerning State aid case SA.29064 (11/C, ex 11/NN) — Differentiated air travel tax rates implemented by Ireland (OJ 2013 L 119, p. 30) (‘the contested decision’). That decision was also notified to the applicant by letter of 23 August 2012 from the Irish Department of Finance, received by the applicant on 6 September 2012.
12 The Commission concluded, in Article 1 of that decision, that the State aid which, in accordance with the Finance Act, took in the present case the form of a lower air travel tax rate applicable to all flights operated by an aircraft capable of carrying more than 20 passengers and not used for State or military purposes, departing from an airport with more than 10 000 passengers per year to a destination no more than 300 km from Dublin airport, unlawfully put into effect by Ireland between 30 March 2009 and 1 March 2011 (‘the period concerned’), in breach of Article 108(3) TFEU, was incompatible with the internal market.
13 Article 4 of that decision provides that Ireland is to recover the incompatible aid granted under the scheme referred to in Article 1 from the beneficiaries. Those beneficiaries are identified in recital 70 of the contested decision as being Ryanair, the applicant, Aer Arann and other air carriers to be identified by Ireland. Recital 70 also states that the amount of the State aid amounts to the difference between the lower rate of the air travel tax and the standard rate of EUR 10 — that is to say, EUR 8 — levied on each passenger.
Procedure and forms of order sought by the parties
14 By application lodged at the Court Registry on 1 November 2012, the applicant brought the present action.
15 By document lodged at the Court Registry on 6 March 2013, Ireland sought leave to intervene in support of the Commission. By order of 17 April 2013, the President of the Sixth Chamber of the General Court granted Ireland leave to intervene.
16 Ireland submitted its statement in intervention on 4 June 2013. By letter of 17 June 2013, the Commission notified the Registry that it had no observations to make. The applicant filed its observations on that statement on 24 July 2013.
17 The composition of the chambers of the Court having been altered, the Judge-Rapporteur was assigned to the Ninth Chamber, to which this case was, consequently, assigned.
18 The applicant claims that the Court should:
– annul or, in the alternative, annul in part the contested decision;
– order the Commission to pay the costs.
19 The Commission, supported by Ireland, contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
20 The applicant puts forward five pleas in law in support of its application, alleging, first, that the Commission erred in law in classifying, in the contested decision, the lower rate of EUR 2 as unlawful State aid, secondly, that it breached the principles of legal certainty, effectiveness and good administration by ordering recovery of the aid, thirdly, that it committed an error of law and a manifest error of assessment by failing to take into account the passing on of the ATT to passengers in its classification of the measure as aid and its quantification of the advantage, fourthly, that it infringed Article 14 of Regulation No 659/1999 and the principles of proportionality and equal treatment by ordering recovery in the contested decision, and fifthly, that it failed to fulfil its obligation to state reasons.
21 The Court considers it appropriate to begin by examining the fifth plea in law, then the first plea in law, then the third and fourth pleas in law together, and lastly, if necessary, the second plea in law.
The fifth plea in law, alleging a failure to state reasons for the contested decision
22 By the fifth plea in law, the applicant submits that the Commission gave insufficient reasons in the contested decision to explain, first, why it was necessary to recover the aid when there was a vested right under EU law to reimbursement of the tax differential and, secondly, why it was appropriate to quantify the aid to be recovered at EUR 8 per passenger, when the ATT was passed on to the passengers.
23 The Commission, supported by Ireland, contests those arguments and submits that it was not required to address those questions in the contested decision, since they had not been raised by any third party or by the Irish authorities during the procedure for adoption of the contested decision. In any event, the Commission states that it clearly explained, in recital 57 of the contested decision, the reasons why any passing on of aid to passengers was not taken into account as regards the quantification of the advantage.
24 It is settled case-law that the scope of the duty to state reasons depends upon the nature of the measure at issue and the context in which it was adopted. The statement of reasons must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure so as to enable the EU judicature to review the legality of the measure and allow the persons concerned to ascertain the reasons for the measure, so that they can defend their rights and ascertain whether or not the decision is well founded. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and all the legal rules governing the matter in question (judgments of 2 April 1998 in Commission v Sytraval and Brink’s France, C‑367/95 P, ECR, EU:C:1998:154, paragraph 63, and 30 November 2011 in Sniace v Commission, T‑238/09, EU:T:2011:705, paragraph 37).
25 In particular, the Commission is not obliged to adopt a position on all the arguments relied on before it by the parties concerned. It is sufficient if it sets out the facts and the legal considerations having decisive importance in the context of the decision (judgments of 1 July 2008 in Chronopost and La Poste v UFEX and Others, C‑341/06 P and C‑342/06 P, ECR, EU:C:2008:375, paragraph 96, and 3 March 2010 in Freistaat Sachsen and Others v Commission, T‑102/07 and T‑120/07, ECR, EU:T:2010:62, paragraph 180).
26 Lastly, it is apparent from the case-law that, although a decision of the Commission which fits into a well-established line of decisions may be reasoned in a summary manner, for example by a reference to those decisions, if it goes appreciably further than the previous decisions, the Commission must be explicit in its reasoning (judgments of 26 November 1975 in Groupement des fabricants de papiers peints de Belgique and Others v Commission, 73/74, ECR, EU:C:1975:160, paragraph 31; 11 December 2008 in Commission v Département du Loiret, C‑295/07 P, ECR, EU:C:2008:707, paragraph 44; and 29 September 2011 in Elf Aquitaine v Commission, C‑521/09 P, ECR, EU:C:2011:620, paragraph 155).
27 The plea alleging failure to state sufficient reasons for the contested decision must be examined in the light of those principles.
28 In the first place, it is necessary to examine the applicant’s argument that the Commission did not give reasons, or in any event sufficient reasons, for the contested decision as regards the order for recovery of the aid, without taking into account the alleged right to reimbursement, under EU law, of the airlines which paid the ATT at the higher rate of EUR 10 during the period concerned.
29 It must be noted, in that regard, that, since the concept of State aid must be applied to an objective situation appraised on the date on which the Commission takes its decision, it is the appraisals carried out on that date which must be taken into account in conducting that review (judgment of 27 September 2012 in France v Commission, T‑139/09, ECR, EU:T:2012:496, paragraph 52).
30 In the present case, even though the Commission was aware of the letter of formal notice sent to Ireland on 18 March 2010, the content of which is set out, in essence, in recital 66 of the contested decision, it was in no way required to take it into account at the stage of quantifying the aid and of its recovery, since, in accordance with the case-law referred to in paragraph 25 above, the Commission considered that it was not a fact having decisive importance in the context of the decision.
31 In that respect, the Commission explained, in recital 45 of the contested decision, why it considered that the rate of EUR 10 should be regarded as the reference rate for the purpose of establishing the selective nature of the measure. It also explained why it considered that, under Article 14 of Regulation No 659/1999, it was required to order the recovery of the aid as established and quantified in the contested decision. Those considerations are sufficient to enable the EU judicature to review the legality of the measure and to allow the persons concerned to ascertain the reasons for the measure so that they can defend their rights and ascertain whether or not the decision is well founded, in accordance with the case-law referred to in paragraph 24 above.
32 It must also be noted that, by that argument, the applicant actually contests the validity of the Commission’s assessments regarding the existence of State aid and the need to order its recovery, assessments which are called into question in the first and second pleas in law.
33 It is settled case-law that the obligation to state reasons is an essential procedural requirement and distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure (judgments of 22 March 2001 in France v Commission, C‑17/99, ECR, EU:C:2001:178, paragraph 35, and 18 January 2005 in Confédération Nationale du Crédit Mutuel v Commission, T‑93/02, ECR, EU:T:2005:11, paragraph 67).
34 It is therefore necessary to reject the applicant’s argument alleging a failure to state reasons for the contested decision in that the Commission did not take into account the airlines’ alleged right to reimbursement of taxes paid on the basis of the ATT.
35 In the second place, as regards the alleged failure to state reasons for the contested decision in relation to the quantification of the amount of aid to be recovered at EUR 8 per passenger, it must be held, contrary to what is claimed by the applicant, that the Commission dealt with that issue in recital 54 et seq. of the contested decision. As regards, in particular, the possibility for the airlines to pass the tax on to their passengers, the Commission found in recital 57 of the contested decision that ‘there was no mechanism which ensured that the tax was actually passed on’ and that ‘it was left to the airline operator to decide on whether and how the tax would be passed on to the passengers’.
36 It must therefore be held that the Commission gave sufficient reasons for the contested decision in that regard, irrespective of whether or not those reasons are well founded, a question which will be examined in the context of the third and fourth pleas in law.
37 Accordingly, the applicant’s argument alleging a failure to state reasons for the contested decision in relation to the possibility of passing the ATT on to passengers must be rejected, as must the fifth plea in law in its entirety.
The first plea in law, alleging that the Commission erred in law in applying Article 107(1) TFEU in that it classified the lower rate of the ATT as unlawful State aid
38 By its first plea in law, the applicant considers that the Commission erred in law in concluding, in the contested decision, that the lower rate of EUR 2 constituted unlawful State aid. Specifically, the Commission erred in characterising the higher rate of EUR 10 as the ‘normal’ rate of tax, for the purposes of determining whether the lower rate constituted a selective advantage. Given that the higher rate was invalid pursuant to directly effective provisions of EU law, such as Article 56 TFEU and Article 108(3) TFEU, it could not properly be regarded as the ‘normal’ reference rate for this purpose. For the same reasons the Commission erred in finding that the airlines subject to the lower rate benefited from an advantage corresponding to EUR 8 per passenger.
39 In the first place, the applicant submits that there is a right to reimbursement of taxes levied at the higher rate of EUR 10, pursuant to Article 56 TFEU and Regulation No 1008/2008, since the Commission found an infringement of those provisions in its letter of formal notice of 18 March 2010.
40 Therefore, according to the applicant, if any advantage at all was gained by the airlines subject to the lower rate tax, the amount of that advantage would not be the difference between the EUR 2 rate and the EUR 10 rate, but rather, at the most, the convenience for those airlines of being able to benefit immediately from the lower rate, without having to bring a claim for reimbursement before the Irish courts, since the airlines which paid the ATT at the higher rate of EUR 10 have a vested right, under EU law, to the reimbursement of that tax
41 In the second place, the applicant submits that such a right to reimbursement of taxes paid at the higher rate of EUR 10 also arises under Article 108(3) TFEU. It cites, in that regard, the judgment of 7 September 2006 in Laboratoires Boiron (C‑526/04, ECR, EU:C:2006:528).
42 The Commission, supported by Ireland, disputes those arguments.
43 As a preliminary point, it must be noted that the concept of State aid is an objective one and that the question of whether there is an advantage within the meaning of Article 107(1) TFEU must be examined in the light of the anti-competitive effects caused by the aid measure in question, and not in the light of other factors such as the lawfulness of the measure by which the aid is granted (see, to that effect, judgments of 22 December 2008 in British Aggregates v Commission, C‑487/06 P, ECR, EU:C:2008:757, paragraph 85 and the case-law cited, and 7 October 2010 in DHL Aviation and DHL Hub Leipzig v Commission, T‑452/08, EU:T:2010:427, paragraph 40).
44 For that reason, the EU judicature must in principle, having regard both to the specific features of the case before it and to the technical or complex nature of the Commission’s assessments, carry out a comprehensive review as to whether a measure falls within the scope of Article 107(1) TFEU (see judgment in British Aggregates v Commission, paragraph 43 above, EU:C:2008:757, paragraph 111 and the case-law cited).
45 It is settled case-law that the concept of aid is more general than that of a subsidy. It embraces not only positive benefits, but also measures which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which, without therefore being subsidies in the strict meaning of the word, are similar in character and have the same effect (see judgment of 8 November 2001 Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke, C‑143/99, ECR, EU:C:2001:598, paragraph 38 and the case-law cited).
46 For the purposes of applying Article 107(1) TFEU, the only question to be determined is whether, under a particular statutory scheme, a State measure is such as to favour ‘certain undertakings or the production of certain goods’ within the meaning of that article as compared with other undertakings which are in a legal and factual situation that is comparable in the light of the objective pursued by the measure at issue (see, to that effect, judgment in Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke, paragraph 45 above, EU:C:2001:598, paragraph 41 and the case-law cited).
47 In accordance with the case-law of the Court of Justice, a measure which, although conferring an advantage on its recipient, is justified by the nature or general scheme of the system of which it is part does not fulfil that condition of selectivity (see, to that effect, Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke, paragraph 45 above, EU:C:2001:598, paragraph 42 and the case-law cited).
48 In the present case, the Commission considered, in recital 52 of the contested decision, that the application of the ATT was liable to affect the revenues of airlines which had to pay that tax, by increasing the prices of tickets that they were capable of offering to their customers, or reducing the margin on each ticket sold, if the airlines decided not to pass the tax on to the customers.
49 Accordingly, the Commission found, in recital 53 of the contested decision, that the application of a reduced rate for a certain type of flights therefore had a smaller effect than the normal rate on the airlines offering that type of flights. Those airlines were relieved of a cost they would normally have had to bear, and therefore had a smaller cost to pass on to their customers or bear themselves.
50 The Commission therefore concluded in recital 54 of the contested decision that the lower rate provided an advantage to airlines serving the routes to which that rate applied. The lower cost that they had to pass on to their customers or bear themselves represented a financial saving for those airlines and therefore improved their economic situation vis-à-vis other airlines competing in the air transport market. According to the Commission, that advantage corresponds to the difference between the lower rate of EUR 2 and the normal tax rate of EUR 10 during the period concerned.
51 It is not disputed that, in the present case, two different tax rates were applied to airlines’ flights in Ireland during the period concerned, with the result that those which had to pay the lower tax rate of EUR 2 per passenger enjoyed an advantage by comparison with other airlines which had to pay an amount of EUR 10 per passenger during the same period.
52 However, the applicant contests the selective nature of that advantage, since, in its view, the higher rate of EUR 10, which the Commission characterised as the normal reference rate in the contested decision, is unlawful under EU law.
53 According to the applicant, there is a right to reimbursement of taxes paid at the higher rate of EUR 10 before the national courts, either under Article 56 TFEU, or under Article 108(3) TFEU. The reference rate of EUR 10 used by the Commission in order to determine the selective nature of the measure is therefore incorrect.
54 As a preliminary point, it must be noted that the Commission considered that, in order to establish the selective nature of the measure, it was necessary, first of all, to determine the reference system. In recital 43 of the contested decision, the Commission defined the reference system as the taxation of air passengers departing on an aircraft from an airport in Ireland. The objective of that system is defined in the same recital as being to raise revenue for the State budget.
55 Next, in recitals 44 and 45 of the contested decision, the Commission examined whether the tax measure in question constituted a derogation from the reference system thus defined. It considered that, apart from certain destinations in the western United Kingdom, the lower rate only applied to domestic destinations and, according to the Irish authorities, only to some 10 to 15% of all flights which were subject to the ATT. That rate therefore could not, according to the Commission, be regarded as the normal tax rate. Accordingly, the Commission considered that the higher rate of EUR 10 was the normal rate of the reference system, while the reduced rate of EUR 2, which was applicable to a well delimited category of flights, was an exception from that reference system.
56 The Court will examine, in the light of those considerations, the applicant’s arguments, which seek to call into question the Commission’s identification of the higher rate of EUR 10 as the reference rate for the purposes of establishing the existence of a selective advantage in favour of the airlines which benefited from the lower rate of EUR 2 during the period concerned.
The existence of a right under Article 56 TFEU to reimbursement of the taxes paid at the rate of EUR 10 per passenger
57 By that first complaint, the applicant submits that a right to reimbursement of the taxes paid at the higher rate of EUR 10 arises from the provisions of the Treaty concerning the freedom to provide services, and particularly Article 56 TFEU, which was allegedly infringed in the present case. That infringement was established by the Commission itself in the letter of formal notice. That rate therefore could not be used as the reference rate in order to establish the existence of a selective advantage.
58 It must be pointed out in that respect — without it being necessary to rule on whether or not the Commission’s finding in that letter is definitive — that the applicant’s complaint is based on an erroneous premiss that the higher rate of EUR 10 is unlawful under Article 56 TFEU. In fact, as Ireland and the Commission rightly note, the latter merely found, in the letter of formal notice and subsequently in recital 66 of the contested decision, that the ‘differentiated rates’ of the ATT constituted a restriction on the freedom to provide services, since that differentiation imposed more onerous conditions on the operation of intra-Union flights than those imposed on domestic services, and not that the higher rate in itself constituted such a restriction.
59 In that regard, the case that gave rise to the judgment of 6 February 2003 in Stylianakis (C‑92/01, ECR, EU:C:2003:72), on which the applicant relies, which concerned a similar situation where international flights were taxed more heavily than domestic flights, does not support the conclusion that the higher rate of EUR 10 is unlawful. In that judgment, the Court held that ‘differences’ in the taxes to be paid by passengers would automatically be reflected in the transport cost and would thus favour access to domestic flights over access to intra-Community flights (Stylianakis, EU:C:2003:72, paragraph 28), without indicating, however, that the higher rate was therefore unlawful and that it would have to be reimbursed before the national courts.
60 Furthermore, there are several means of remedying tax discrimination such as that found in the present case or in the case that gave rise to the judgment in Stylianakis, paragraph 59 above (EU:C:2003:72). The Member State concerned may decide to bring an end to that discrimination either by increasing the lower rate to the level of the higher rate, or, conversely, by reducing the higher rate to the level of the lower rate, or even by establishing a new single tax rate, as Ireland did in the present case by establishing a rate of EUR 3 per passenger as from 1 March 2011. It is therefore incorrect to claim, as the applicant does, that the higher rate is unlawful in itself, since it was the application of that rate in conjunction with a lower rate which gave rise to the restriction on the freedom to provide services.
61 Moreover, it must be noted that, as Ireland points out, such a right to reimbursement, even if it were proved, would not be automatic and would depend on a number of factors such as the applicable limitation periods for bringing such an action in national law, and the observance of general principles such as the absence of unjust enrichment.
62 In accordance with the case-law of the Court of Justice, although a tax levied in breach of EU law must normally be reimbursed where a request to that effect is made before the national courts, that is not the case where it is established by the national authorities that the charge has been borne in its entirety by someone other than the taxable person and that reimbursement of the charge would constitute unjust enrichment of the latter (see judgment of 2 October 2003 in Weber’s Wine World and Others, C‑147/01, ECR, EU:C:2003:533, paragraph 94 and the case-law cited). That possibility cannot be ruled out automatically in the present case, since the ATT was intended to be passed on to the passengers, operators such as the applicant assert that they have passed on the tax to their passengers, and that possibility was expressly acknowledged by the Commission in the contested decision (see paragraph 94 below).
63 In those circumstances, the Commission was not required to take into account the potential reimbursement claims before the national courts in order to be able to characterise the measure as State aid and, in particular, in order to consider that the higher tax rate of EUR 10 was the normal tax rate of the reference system. Since that rate was actually applied in the present case during the period concerned, the Commission was not required to base its analysis on such hypothetical reimbursement claims, which, moreover, were in no way certain to succeed, either under EU law or national law.
64 The applicant’s first complaint must therefore be rejected.
The existence of a right to reimbursement of taxes paid at the rate of EUR 10 per passenger under Article 108(3) TFEU
65 The applicant puts forward a second complaint, in order to demonstrate that there is a right to reimbursement of taxes paid at the higher rate of EUR 10 before the national courts under Article 108(3) TFEU.
66 It refers, in that respect, to the judgment in Laboratoires Boiron, paragraph 41 above (EU:C:2006:528), from which it follows, according to the applicant, that where the tax and the exemption are both integral parts of the aid measure, the reimbursement of the taxes unduly levied would not be contrary to the objective of restoring the competitive position of the undertakings concerned, as the Commission submits, but rather would constitute a particularly appropriate way of reducing the number of economic operators harmed by the measure deemed to constitute aid.
67 In view of that case-law, it must be noted that a right to reimbursement of a tax exists, under Article 108(3) TFEU, only in two situations, namely, first, where that tax is an integral part of the aid measure, for the purpose of the case-law resulting from the judgment of 21 October 2003 in van Calster and Others (C‑261/01 and C‑262/01, EU:C:2003:571), that is to say, where the tax is hypothecated to the aid, or secondly, where the tax and the aid are more closely linked than in the case of a parafiscal charge, as in the case that gave rise to the judgment in Laboratoires Boiron, paragraph 41 above (EU:C:2006:528), that is to say, where the measure alleged to constitute aid is the tax itself and not some exemption which is separable from that tax (paragraphs 39 and 45 of that judgment).
68 In the present case, neither of those situations arises.
69 First, there is no hypothecation, for the purpose of the Van Calster case-law, paragraph 67 above (EU:C:2003:571), as Ireland notes, since the revenue from the tax is not directly allocated for the financing of the aid (see, to that effect, judgments of 27 October 2005 in Distribution Casino France and Others, C‑266/04 to C‑270/04, C‑276/04 and C‑321/04 to C‑325/04, ECR, EU:C:2005:657, paragraph 55, and 16 October 2013 in TF1 v Commission, T‑275/11, EU:T:2013:535, paragraph 43 and the case-law cited). The airlines which paid the ATT at the rate of EUR 10 per passenger did not thereby finance the aid obtained by the airlines which had to pay the tax at the rate of EUR 2 per passenger during the same period.
70 Secondly, unlike the aid at issue in the case which gave rise to the judgment in Laboratoires Boiron, paragraph 41 above (EU:C:2006:528), the aid in the present case consists in the application of different tax rates, and not a tax at a single rate levied in order to confer aid on the competitors of the undertakings subject to the tax. Therefore the tax and the aid are not the same, for the purpose of the case-law cited above. On the contrary, in a situation such as that in the present case, the Court of Justice has held that those liable to pay a charge cannot rely on the argument that the exemption enjoyed by other businesses constitutes State aid in order to avoid payment of that charge (see judgment in Laboratoires Boiron, paragraph 41 above, EU:C:2006:528, paragraph 30 and the case-law cited).
71 It must be noted, in addition, that the applicant’s complaint is inherently contradictory insofar as it seeks to invoke an alleged right to reimbursement under Article 108(3) TFEU in order to contest the existence of aid in the present case, whereas such a right to reimbursement before the national courts presupposes that there is indeed aid, within the meaning of Article 107(1) TFEU, which is precisely what the applicant contests.
72 Furthermore, if the applicant’s complaint were accepted, any aid that had not been notified under Article 108(3) TFEU might no longer be subject to a negative Commission decision ordering the recovery of that aid since, pursuant to that provision, such aid would be unlawful under EU law and could be recovered before the national courts. That would clearly run counter to the objective of Article 107 TFEU, which is to ensure that the recipient forfeits the advantage on the market which it has enjoyed over its competitors, and that the situation prior to payment of the aid is restored (see, to that effect, judgments of 3 March 2005 in Heiser, C‑172/03, ECR, EU:C:2005:130, paragraphs 37 and 38, and DHL Aviation and DHL Hub Leipzig v Commission, paragraph 43 above, EU:T:2010:427, paragraph 41).
73 Although the wording of recital 66 of the contested decision may give rise to confusion in so far as the Commission found that the tax and the aid constituted two elements of one and the same fiscal measure, it must be pointed out that that finding was made in the context of the examination of the compatibility of the aid, in application of the principle that the Commission cannot declare aid compatible with the internal market if it infringes other provisions of the Treaty (see, to that effect, judgment of 22 March 1977 in Iannelli & Volpi, 74/76, ECR, EU:C:1977:51, p. 557, paragraph 14) and not in the part of the contested decision dedicated to the examination of the existence of aid, still less in order to demonstrate that there is a right to reimbursement of the tax levied at the higher rate of EUR 10 before the national courts.
74 It must therefore be held that, contrary to what is claimed by the applicant, in the present case, there is no vested right to reimbursement of taxes paid at the higher rate of EUR 10, pursuant to Article 108(3) TFEU, for operators which paid the tax during the period concerned.
75 Accordingly, the applicant’s second complaint must also be rejected.
76 It must therefore be held, in view of all of those considerations, and in view of the factors mentioned by the Commission in recitals 44 and 45 of the contested decision as noted in paragraph 55 above, that the Commission did not err in law by characterising the higher rate of EUR 10 as the reference rate, for the purposes of determining the existence of a selective advantage in the contested decision and by concluding that the application of the different rates in the present case constituted State aid, within the meaning of Article 107(1) TFEU, in favour of airlines whose flights were subject to the lower rate of EUR 2 during the period concerned.
77 The applicant’s first plea in law must therefore be rejected.
The third and fourth pleas in law, alleging an error of law and a manifest error of assessment in the classification and quantification of the aid, resulting from the failure to take into account the passing on of the ATT to passengers, and infringement of Article 14 of Regulation No 659/1999 and the principles of proportionality and equal treatment by the order for recovery of the aid
78 By its third plea, the applicant claims that the Commission erred in law and committed a manifest error of assessment by identifying the air carriers subject to the lower rate tax as the beneficiaries of the alleged aid in the amount of EUR 8 per passenger, and ordering recovery of the aid on that basis, when the Commission acknowledged that the burden of the tax could have been passed on to the passengers, who were therefore the primary beneficiaries of the lower rate.
79 According to the applicant, the Commission ought to have taken that point into consideration in defining and quantifying the aid, and have assessed the advantage actually retained by the airlines which paid the ATT at the lower rate of EUR 2 and, to a large extent, passed it on to their passengers. Insofar as any part of the EUR 8 saving represented by the lower tax was passed on to passengers and not retained by the airlines, the Commission’s decision requiring recovery of EUR 8 per passenger has the effect of requiring the airlines subject to the lower rate tax to repay more than they have actually received, and is therefore unlawful.
80 By its fourth plea, the applicant also maintains that, it being impossible to recoup the EUR 8 per passenger retrospectively from the passengers who benefited from the lower rate tax, the recovery order operates as an additional tax on the relevant airlines, and consequently amounts to unlawfully penalising those airlines rather than restoring the situation as it was before the grant of the alleged aid. That is disproportionate and constitutes infringement of the principle of equal treatment, and therefore an infringement of Article 14 of Regulation No 659/1999.
81 As regards the third plea in law, the Commission contests the applicant’s arguments. It submits, in the first place, that there was, under the relevant legislation, no obligation to pass the tax on to passengers. On the contrary, it was left open to each airline to decide whether the cost of the tax should be fully or partly passed on to the passengers. In the second place, the Commission maintains that even if the tax savings had been passed on in full, that would also have resulted in an advantage for the airlines concerned, in that they could have offered more attractive prices to their customers than if they had been taxed at the normal rate of EUR 10. It is therefore irrelevant whether the beneficiary has chosen to pass on the advantage to its customers and thus obtain higher sales volumes, or has chosen to absorb the advantage directly by charging a higher price. The logical consequence was therefore to recover the amount of the aid in full, that is to say, EUR 8 per passenger, for the flights subject to the lower rate of EUR 2.
82 As regards the fourth plea in law, the Commission contends that, because recovery of aid is intended to restore the previous situation, it cannot, in principle, be regarded as a disproportionate measure. Moreover, since repayment of the aid is designed only to restore the previous situation, it cannot in principle be regarded as a penalty. There is, therefore, no breach of the principle of equal treatment, inasmuch as all the beneficiaries of the aid are required to repay the illegal, incompatible aid.
83 As a preliminary point, it must be recalled that the objective of the obligation on a State to abolish aid found by the Commission to be incompatible with the internal market is to restore the previous situation. That objective is accomplished when the recipients have repaid the sum paid by way of unlawful aid, thereby forfeiting the advantage which they had enjoyed over their competitors on the market, and when the situation prior to payment of the aid is restored (see judgments of 17 June 1999 in Belgium v Commission, C‑75/97, ECR, EU:C:1999:311, paragraphs 64 and 65 and the case-law cited, and 13 February 2012 in Budapesti Erőmű v Commission, T‑80/06 and T‑182/09, EU:T:2012:65, paragraph 107).
84 It must also be recalled that no provision of EU law requires the Commission, when ordering the recovery of aid declared incompatible with the internal market, to fix the exact amount of the aid to be recovered. It is sufficient for the Commission’s decision to include information enabling the recipient itself to work out that amount without overmuch difficulty (judgments of 12 October 2000 in Spain v Commission, C‑480/98, ECR, EU:C:2000:559, paragraph 25, and 12 May 2005 in Commission v Greece, C‑415/03, ECR, EU:C:2005:287, paragraph 39). Moreover, the operative part of an act is indissociably linked to the statement of reasons for it, so that, when it has to be interpreted, account must be taken of the reasons which led to its adoption (judgments of 15 May 1997 in TWD v Commission, C‑355/95 P, ECR, EU:C:1997:241, paragraph 21, and 29 April 2004 in Italy v Commission, C‑298/00 P, ECR, EU:C:2004:240, paragraph 97).
85 However, if the Commission decides to order the recovery of a specific amount, it must — pursuant to its obligation to conduct a diligent and impartial examination of the case under Article 108 TFEU — assess, as accurately as the circumstances of the case will allow, the actual value of the benefit received from the aid by the beneficiary (see judgment of 29 March 2007 in Scott v Commission, T‑366/00, ECR, EU:T:2007:99, paragraph 95 and the case-law cited).
86 In restoring the situation existing prior to the payment of the aid, the Commission is, on the one hand, obliged to ensure that the real advantage resulting from the aid is eliminated and thus to order recovery of the aid in full. The Commission may not, out of sympathy with the beneficiary, order recovery of an amount which is less than the value of the aid received by the latter. On the other hand, the Commission is not entitled to mark its disapproval of the serious character of the illegality by ordering recovery of an amount in excess of the value of the aid received by the beneficiary (judgment in Scott v Commission, paragraph 85 above, EU:T:2007:99, paragraph 95).
87 The applicant does not dispute that, even had the ATT been entirely passed on to the passengers, the application of a tax at a reduced rate could confer an advantage on the undertaking required to pay that tax. Nevertheless, it contests the extent of that advantage, which was evaluated at EUR 8 per passenger in the contested decision.
88 In that regard, first of all, it must be noted that Section 55 of the Finance Act refers to the ATT as an excise duty to be charged, levied and paid in respect of every departure of a passenger on an aircraft from an airport located in Ireland, which Ireland also confirmed at the hearing.
89 An excise duty is, by definition, an indirect tax levied on the consumption of a particular good or service, by contrast with direct taxes such as taxes on income or on profits, which are paid directly by the undertakings.
90 In the present case, it is undisputed that the airlines were required, under the Finance Act, to apply the ATT at the rate of EUR 2 in respect of all flights subject to that rate. It is also common ground between the parties that pursuant to Article 23 of Regulation No 1008/2008, airlines were required to indicate the amount of ATT separately in the price of each ticket sold to their passengers. Thus, the ATT was formally intended to be passed on through the price of the flight ticket bought by the passenger, as indicated in recital 8 of the contested decision.
91 As the applicant notes, it is therefore necessary to make a distinction between the formal or legal passing on, concerning the manner in which the tax is lawfully levied and applied, and the economic passing on, which consists in determining to what extent the airline bore the economic cost of the ATT by possibly adjusting the ticket price exclusive of the ATT according to the rate of the ATT actually applicable, or, in the case of application of the ATT at the reduced rate of EUR 2, to what extent they actually retained the economic advantage arising from the application of that lower rate.
92 The Commission explained, in recital 53 of the contested decision, that the airlines which paid the tax at the reduced rate of EUR 2 had a smaller cost to pass on to their customers or to bear themselves. It then stated that that smaller cost represented financial resources that the airlines were able to economise and therefore improve their financial situation vis-à-vis other airlines.
93 In recital 57 of the contested decision, the Commission responded to the arguments of the Irish authorities, according to which no advantage existed for the airlines, since the tax was essentially a tax on consumption intended to be passed on to the passengers. The Commission considered, relying on the judgment in Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke, paragraph 45 above (EU:C:2001:598), that, even in situations where there is a legal requirement to pass the tax in question on to the customers, a reduction from the normal rate of tax can confer a selective advantage on the airlines which must pay that tax at the reduced rate.
94 The Commission acknowledged, in the same recital of the contested decision, that, in the present case, the cost of the tax could be passed on to the customers, even though there was no mechanism which ensured that the tax was actually passed on, and that it was a choice left to each airline.
95 In a similar situation, the Court of Justice has itself held that since airport taxes directly and automatically influence the price of the journey, differences in the taxes to be paid by passengers will automatically be reflected in the transport cost (Stylianakis, paragraph 59 above, EU:C:2003:72, paragraph 28).
96 The Commission nevertheless submits that, even if the ATT was passed on, the airlines also enjoyed an advantage, since they could offer more attractive prices to their customers, which would have resulted in a higher turnover.
97 It must therefore be held that, in a situation such as that in the present case, where the ATT was intended to be passed on to the passengers and where the economic advantage arising from the application of the reduced tax could also have been passed on to the passengers, the Commission cannot presume that the advantage actually obtained and retained by the airlines amounted, in all cases, to EUR 8 per passenger.
98 In such a case, the advantage actually obtained by the airlines does not necessarily consist in the difference between the two rates, but rather in the possibility of offering more attractive prices to their customers and thereby increasing their turnover, as the Commission itself acknowledged in recital 57 of the contested decision.
99 Accordingly, for airlines such as the applicant which paid the ATT at the lower rate of EUR 2, the Commission should have determined the extent to which they had actually passed on to their passengers the economic benefit resulting from the application of the ATT at the lower rate, in order to be able to quantify precisely the advantage which the airlines actually enjoyed, unless it decided to confer that task to the national authorities and provided the necessary information in that respect.
100 Thus, it is only if the applicant had systematically increased the price of its tickets excluding tax by EUR 8 per ticket for flights subject to the ATT at the rate of EUR 2 that it would have been possible to consider that the economic advantage resulting from the application of the differentiated rates amounted to EUR 8 per passenger for the applicant, since that advantage could not have been passed on, even partially, to the passengers.
101 It must be found however that the Commission did not, at any point in the contested decision or in the present proceedings, explain why that situation would be the normal one, rather than a situation in which the airlines passed on the advantage to their passengers in accordance with the stated objective of the ATT, and despite having acknowledged that such passing on of the advantage was possible (see paragraph 94 above).
102 In addition, the Commission did not take sufficient account of the particular situation of the market in the present case and of its competitive constraints, in so far as all the airlines operating flights of less than 300 km (calculated from Dublin airport) departing from an airport located in Ireland were subject to the ATT at the rate of EUR 2 per passenger. Thus, the Commission has not established how, in those circumstances, the airlines whose flights were subject to the ATT at the reduced rate of EUR 2 per passenger enjoyed an advantage corresponding to the difference between the two rates of ATT, namely EUR 8 per passenger.
103 In so doing, the Commission committed an error of assessment and an error of law.
104 As the applicant rightly points out, the recovery of aid must be limited to the financial advantages actually arising from the placing of the aid at the disposal of the beneficiary, and be proportionate to them (see, to that effect, judgment of 22 January 2013 in Salzgitter v Commission, T‑308/00 RENV, ECR, EU:T:2013:30, paragraph 138).
105 Accordingly, although the advantage resulting from the application of a lower rate could consist in the improvement of the competitive position of airlines, because they could offer more competitive prices, the Commission should have merely ordered the recovery of the amounts actually corresponding to that advantage or, if it proved impossible to determine those amounts accurately in the decision, to confer that task to the national authorities and provide the necessary information in that respect, in accordance with the case-law cited in paragraph 84 above.
106 According to the Commission, if the applicant’s line of argument were accepted, it would lead to a situation in which the Commission or the national authorities would be required to evaluate, in each individual case, the effects of the aid on the beneficiaries on the basis of their individual choices, which would run counter to the case-law referred to in paragraph 43 above, and the judgment of 15 December 2005 in Unicredito Italiano (C‑148/04, ECR, EU:C:2005:774).
107 In the case that gave rise to that judgment, the Court of Justice recalled that the withdrawal of unlawful aid through its recovery is the logical consequence of the finding that it is unlawful. That recovery for the purpose of re-establishing the previously existing situation cannot, in principle, be regarded as disproportionate to the objectives of the Treaty provisions on State aid. By repaying the aid, the recipient forfeits the advantage which it had enjoyed over its competitors on the market, and the situation prior to payment of the aid is restored (see the judgment in Unicredito Italiano, paragraph 106 above, EU:C:2005:774, paragraph 113 and the case-law cited).
108 The Court of Justice held, therefore, that it would not be right to determine the amounts to be repaid in the light of various operations which could have been implemented by the undertakings if they had not opted for the type of operation which was coupled with the aid. That choice was made in the knowledge of the risk of recovery of aid granted contrary to the procedure laid down in Article 108(3) TFEU. Those undertakings could have avoided that risk by opting immediately for operations structured in other ways. In addition, re-establishing the status quo ante means returning, as far as possible, to the situation which would have prevailed if the operations at issue had been carried out without the tax reduction (see, to that effect, judgment in Unicredito Italiano, paragraph 106 above, EU:C:2005:774, paragraphs 114 to 117).
109 According to the Court of Justice, that does not imply reconstructing past events differently on the basis of hypothetical elements such as the choices, often numerous, which could have been made by the operators concerned, since the choices actually made with the aid might prove to be irreversible. Re-establishing the status quo ante merely enables account to be taken, at the stage of recovery of the aid by the national authorities, of tax treatment which may be more favourable than the ordinary treatment which, in the absence of unlawful aid and in accordance with domestic rules which are compatible with EU law, would have been granted on the basis of the operation actually carried out (judgment in Unicredito Italiano, paragraph 106 above, EU:C:2005:774, paragraphs 118 to 119).
110 It must be pointed out however, that, in contrast to the case that gave rise to the judgment in Unicredito Italiano, paragraph 106 above (EU:C:2005:774), invoked by the Commission, the beneficiary undertakings in the present case could not have opted for an operation other than that which was coupled with the aid. They were required, under the national legislation applicable during the period concerned, to apply the ATT at the rate of EUR 2 per passenger for all flights of less than 300 km, calculated from Dublin airport, departing from an airport located in Ireland. For the same reasons, it was legally impossible to levy the ATT at the rate of EUR 10 from passengers on those flights.
111 It was indeed possible for them to increase the ticket price excluding tax in order to absorb the advantage resulting from the application of the ATT at the rate of EUR 2. However, the Commission could not determine the advantage actually obtained by the airlines without taking into account the circumstances of the particular case. Having regard to the operation of the ATT and the competitive constraints faced by airlines as regards the flights to which the ATT at the rate of EUR 2 was applicable (see paragraph 102 above), the Commission could not presume that the economic advantage resulting from the application of the reduced rate of ATT had not been passed on to the passengers at all.
112 Accordingly, the requirement — arising from the case-law referred to in paragraph 85 above — to assess, as accurately as the circumstances of the case will allow, the advantage actually enjoyed by the airlines in the present case because of the application of the reduced rate of ATT is not the same as reconstructing past events on the basis of hypothetical elements such as the choices, often numerous, which could have been made by the operators concerned, as the Commission maintains; on the contrary, that requirement is intended to ensure that the beneficiary forfeits the advantage which it had over its competitors in the market, nothing more and nothing less, and to restore the situation prior to payment of the aid.
113 In addition, the aid in the case that gave rise to the judgment in Unicredito Italiano, paragraph 106 above (EU:C:2005:774), consisted in a tax advantage in the form of a reduction to 12.5% of the rate of income tax for banks which merged or engaged in similar restructuring, for five consecutive tax years, subject to certain conditions. It is not disputed that income tax constitutes a charge which is actually and exclusively borne by the undertakings subject to it, unlike the ATT in the present case which, as an excise duty, was levied and collected by the airlines alone but which, ultimately, was actually paid and — at least partially if not totally — borne by the passengers.
114 Lastly, the Commission has not established to the requisite legal standard, in its decision, that the recovery of EUR 8 per passenger was necessary in order to ensure the re-establishment of the status quo ante, that is to say the restoration, as far as possible, of the situation which would have prevailed if the operations in question had been carried out without the tax reduction or, in other words, if the flights subject to the rate of EUR 2 per passenger had been subject to the rate of EUR 10 per passenger.
115 The recovery of an amount of EUR 8 per passenger from the airlines could not ensure the re-establishment of the situation which would have prevailed if the operations in question had been carried out without the grant of the aid concerned, since it is not possible, for the airlines, to recover retroactively from their customers the EUR 8 per passenger which should have been collected. The recovery of an amount of EUR 8 per passenger from the airlines is therefore not necessary in order to eliminate the distortion of competition caused by the competitive advantage which such aid affords (see, to that effect, judgment of 8 December 2011 in Residex Capital IV, C‑275/10, ECR, EU:C:2011:814, paragraph 34 and the case-law cited). On the contrary, the recovery of such an amount would be liable to create additional distortions of competition, as the applicant rightly notes, since it could lead to the recovery of more from the airlines than the advantage they actually enjoyed.
116 The Commission should, therefore, have taken into account the particular features of the ATT as an excise duty intended to be passed on to passengers by the airlines as regards all flights subject to the rate of EUR 2 during the period concerned. Inasmuch as the economic advantage resulting from the application of that reduced rate could have been, even only partially, passed on to the passengers, the Commission was not entitled to consider that the advantage enjoyed by the airlines amounted automatically, in all cases, to EUR 8 per passenger.
117 In that regard, the Commission invokes its established practice in its decision in relation to tax aids involving excise duties, according to which exemptions from such charges grant an advantage to undertakings required to pay the tax, even if that advantage could have been passed on to consumers.
118 It must be recalled, however, that the question whether a measure constitutes State aid must be assessed solely in the context of the relevant provisions of the Treaty and the measures taken to implement it, and not in the light of any earlier practice of the Commission in its decisions (judgments of 30 September 2003 in Freistaat Sachsen and Others v Commission, C‑57/00 P and C‑61/00 P, ECR, EU:C:2003:510, paragraphs 52 and 53, and 15 June 2005 in Regione autonoma della Sardegna v Commission, T‑171/02, ECR, EU:T:2005:219, paragraph 177).
119 In any event, the decisions invoked by the Commission, which are also referred to in a footnote to recital 57 of the contested decision, do not concern taxes borne by airlines, as indicated by the Commission, but rather energy taxes, providing for a reduced tax or exemptions for certain categories of undertakings. In all those cases, the taxes were not intended to be passed on by the beneficiary undertakings to their customers. The excise duties were imposed on inputs (energy) that they consumed themselves, and not on products or services intended to be sold to their customers, as in the present case. Lastly, it must be noted that the Commission did not order the recovery of the aid from the beneficiaries in any of those cases, but rather, on the contrary, it declared the aid in question compatible with the internal market on the basis of Article 107(3)(c) TFEU.
120 It must be noted, furthermore, that although the judgment in Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke, paragraph 45 above (EU:C:2001:598), mentioned by the Commission in recital 57 of the contested decision, indeed supports the argument that the application of a reduced tax may grant a selective advantage to the undertakings subject to that tax, even if they are legally obliged to pass that tax on to their customers, it does not establish that, where there are multiple beneficiaries, all of the aid must be imputed to the undertakings which pass that tax on to their customers.
121 Moreover, in the case that gave rise to that judgment, the Court of Justice did not find that the aid should be recovered from the energy providers, which were directly responsible for paying the tax and passing it on to their customers, like the airlines in the present case, but rather from the undertakings which were the customers of those providers, whose principal activity was the manufacture of goods and which were entitled to the rebate of energy taxes.
122 The fact that in the present case the customers of the airlines subject to the ATT are not undertakings, within the meaning of EU law, with the result that no aid can be recovered from them, cannot call into question the Commission’s obligation to identify precisely who were the beneficiaries of an aid, that is to say the undertakings which actually benefited from it (judgment of 3 July 2003 in Belgium v Commission, C‑457/00, ECR, EU:C:2003:387, paragraph 55) and to limit the recovery of the aid to the financial advantages actually arising from the placing of the aid at the disposal of those undertakings (see, to that effect, Salzgitter v Commission, paragraph 104 above, EU:T:2013:30, paragraph 138).
123 It must be held, therefore, that the Commission committed an error of assessment and an error of law by setting the amount of the aid to be recovered from the airlines at EUR 8 per passenger, and infringed Article 14 of Regulation No 659/1999 by ordering the recovery of that amount from those airlines.
124 Accordingly, without it being necessary to rule on any infringement of the principles of proportionality and of equal treatment invoked by the applicant, the applicant’s third and fourth pleas in law must be upheld and the contested decision must be annulled inasmuch as the aid to be recovered from the airlines is evaluated at EUR 8 per passenger, and the order for recovery of the aid is therefore also vitiated by illegality.
125 In that respect, it must be noted that Article 4 of the contested decision provides for the recovery of the aid from the beneficiaries, which are identified in recital 70 of that decision, for an amount of EUR 8 per passenger, an amount which is also fixed in that recital.
126 According to settled case-law, the statement of reasons for a decision on State aid must be taken into account when interpreting the operative part of that decision (see judgment of 20 March 2014 in Rousse Industry v Commission, C‑271/13 P, EU:C:2014:175, paragraph 69 and the case-law cited).
127 It is therefore necessary to annul Article 4 of the contested decision, read in the light of recital 70 of that decision, in so far as it orders the recovery of the aid, evaluated at EUR 8 per passenger, from the airlines which operated flights subject to the ATT at the lower rate of EUR 2 during the period concerned, and the action must be dismissed as to the remainder.
128 Having regard to the foregoing considerations, it is not necessary to rule on the applicant’s second plea in law, in so far as it also seeks to demonstrate that the order for recovery of the aid is unlawful, its unlawfulness having been established in the context of the third and fourth pleas in law.
Costs
129 Under Article 87(3) of the Rules of Procedure of the General Court, where each party succeeds on some and fails on other heads, or where the circumstances are exceptional, the Court may order that the costs be shared or that each party bear its own costs.
130 Since the contested decision must be annulled in part, the Commission must be ordered to pay its own costs, as well as half of the costs incurred by the applicant. The applicant must be ordered to pay half of its own costs.
131 Under Article 87(4) of the Rules of Procedure, Member States and institutions which have intervened in the proceedings are to bear their own costs. Accordingly, Ireland must be ordered to pay its own costs.
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby:
1. Annuls Article 4 of Commission Decision 2013/199/EU of 25 July 2012 on State aid Case SA.29064 (11/C, ex 11/NN) — Differentiated air travel tax rates implemented by Ireland, in so far as it orders the recovery of the aid from the beneficiaries for an amount which is set at EUR 8 per passenger in recital 70 of that decision;
2. Dismisses the action as to the remainder;
3. Orders the European Commission to pay its own costs, as well as half of the costs incurred by Aer Lingus Ltd;
4. Orders Aer Lingus to pay half of its own costs;
5. Orders Ireland to pay its own costs.
Delivered in open court in Luxembourg on 5 February 2015.
[Signatures]
Table of contents
Background to the dispute
Procedure and forms of order sought by the parties
Law
The fifth plea in law, alleging a failure to state reasons for the contested decision
The first plea in law, alleging that the Commission erred in law in applying Article 107(1) TFEU in that it classified the lower rate of the ATT as unlawful State aid
The existence of a right under Article 56 TFEU to reimbursement of the taxes paid at the rate of EUR 10 per passenger
The existence of a right to reimbursement of taxes paid at the rate of EUR 10 per passenger under Article 108(3) TFEU
The third and fourth pleas in law, alleging an error of law and a manifest error of assessment in the classification and quantification of the aid, resulting from the failure to take into account the passing on of the ATT to passengers, and infringement of Article 14 of Regulation No 659/1999 and the principles of proportionality and equal treatment by the order for recovery of the aid
Costs