JUDGMENT OF THE GENERAL COURT (Ninth Chamber)

14 June 2023 (*) (1)

(State aid – Agreements concluded with the airline Ryanair and its subsidiary Airport Marketing Services – Marketing services – Decision declaring the aid incompatible with the internal market and ordering its recovery – Advantage – ‘Real need’ test – Articles 41 and 47 of the Charter of Fundamental Rights – Right of access to the file – Right to be heard)

In Case T‑79/21,

Ryanair DAC, established in Swords (Ireland),

Airport Marketing Services Ltd, established in Dublin (Ireland),

represented by E. Vahida, F.-C. Laprévote, V. Blanc, S. Rating, I.-G. Metaxas-Maranghidis and D. Pérez de Lamo, lawyers,

applicants,

v

European Commission, represented by L. Flynn, J. Carpi Badía and C. Georgieva, acting as Agents,

defendant,

supported by

Council of the European Union, represented by A. Maceroni and A.-L. Meyer, acting as Agents,

intervener,

THE GENERAL COURT (Ninth Chamber),

composed, at the time of the deliberations, of M.J. Costeira (Rapporteur), M. Kancheva and P. Zilgalvis, Judges,

Registrar: S. Spyropoulos, Administrator,

having regard to the written part of the procedure,

further to the hearing on 20 October 2022,

gives the following

Judgment

1        By their action based on Article 263 TFEU, the applicants, Ryanair DAC and Airport Marketing Services Ltd, seek annulment of Commission Decision (EU) 2020/1671 of 2 August 2019 on State aid SA.47867 2018/C (ex 2017/FC) granted by France to Ryanair and Airport Marketing Services (OJ 2020 L 388, p. 1; ‘the contested decision’).

I.      Background to the dispute

A.      The agreements at issue

2        The first applicant, Ryanair DAC, formerly Ryanair Ltd (‘Ryanair’), is an airline established in Ireland which operates more than 2 000 daily flights connecting 209 destinations in 33 countries across Europe and North Africa. The second applicant, Airport Marketing Services Ltd (‘AMS’), is a subsidiary of Ryanair which provides marketing strategy solutions. Its activity consists primarily of selling advertising space on Ryanair’s website.

3        Montpellier Méditerranée airport (‘Montpellier airport’) lies approximately 7 km from the centre of Montpellier, which is the capital of the Department of Hérault, in Occitania, France. The airport is open to domestic and international commercial traffic.

4        Between 1964 and 2009, Montpellier airport was managed by the Chamber of Commerce and Industry of Montpellier, which was later absorbed into the Chamber of Commerce and Industry of Hérault (‘the CCIM’). On 23 June 2009, the management of the airport was transferred to the public limited company Aéroport Montpellier Méditerranée (‘AMM’), which is 60% owned by the French State, 25% owned by the CCIM, 7% owned by the Departmental Council of Hérault, 6.5% owned by the Region of Occitania, 1% owned by the Communauté d’agglomération du Pays de l’Or, and 0.5% owned by Montpellier Méditerranée Métropole.

5        Ryanair began operating at Montpellier airport in March 2002 and ceased operating there in April 2019.

6        The Association de promotion des flux touristiques et économiques (Association for the Promotion of Tourist and Economic Flows) (‘the APFTE’) is an association set up in June 2010 on the initiative of the CCIM in collaboration with several local authorities, namely the Regional Council of Languedoc-Roussillon (now the Region of Occitania), the Department of Hérault, the Communauté d’agglomération de Montpellier (now Montpellier Méditerranée Métropole), the Communauté de communes du Pays de l’Or (now the Communauté d’agglomération du Pays de l’Or) and the City of Montpellier (‘the public members of the APFTE’), and with the participation of several local businesses.

7        According to its constitution, the APFTE’s object is to ‘promote and develop tourism in the area, including business tourism, by entering into promotional agreements, purchasing internet advertising and marketing services or utilising any other advertising medium such as participation in fairs and exhibitions, in order to attract international customers’.

8        Between 2010 and 2018, the APFTE concluded three sets of marketing services agreements with the applicants (‘the agreements at issue’).

9        The first agreement (‘the 2010 agreement’) was signed on 16 September 2010. It was concluded for an initial term from 1 July 2010 to 31 December 2011. Under that agreement, AMS undertook to provide the APFTE with a range of marketing services on Ryanair’s website. In addition, Ryanair undertook to operate the following air routes: an air route between Frankfurt-Hahn airport (Germany) and Montpellier airport with a frequency of four flights per week during the summer and at least two flights per week during the winter; an air route between Brussels-Charleroi airport (Belgium) and Montpellier airport with a frequency of at least three flights per week throughout the year; and an air route between Leeds-Bradford airport (United Kingdom) and Montpellier airport with a frequency of at least two flights per week during the summer. Furthermore, the agreement provided that the amounts of marketing services offered by AMS were linked to Ryanair’s commitment to serve the area of Montpellier with routes from Frankfurt-Hahn airport, Brussels-Charleroi airport and Leeds-Bradford airport and stipulated that if that commitment was not honoured, the price would be revised by means of an amendment.

10      The 2010 agreement was altered by an amendment of 20 April 2011, which added a new air route between Montpellier airport and Birmingham airport (United Kingdom). Under that amendment, Ryanair undertook to operate that air route with a frequency of two flights per week during the summer. The agreement was then renewed twice, initially for the period starting on 1 January 2012 and ending on 31 December 2012, on the basis of the air routes operated by Ryanair from Brussels-Charleroi airport, Frankfurt-Hahn airport and Leeds-Bradford airport, and subsequently for the period starting on 1 January 2013 and ending on 31 December 2013, on the basis of the air routes operated by Ryanair from Brussels-Charleroi airport, Frankfurt-Hahn airport, Leeds-Bradford airport and Birmingham airport.

11      The second set of agreements (‘the 2013 agreements’) were signed on 22 November 2013. Those agreements were concluded following a call for tenders organised by the APFTE on 2 October 2013, the specifications of which required each tenderer to offer ‘to promote tourist and economic flows to Montpellier through all available media on the market’ and to provide a link on its website to the APFTE’s website. The call for tenders also divided the contract into five lots, entitled, inter alia, ‘Brussels-Charleroi’, ‘Frankfurt-Hahn’, ‘Leeds’ and ‘Birmingham’. Although Ryanair was awarded the four lots ‘Brussels-Charleroi’, ‘Frankfurt-Hahn’, ‘Leeds’ and ‘Birmingham’, it concluded agreements only in respect of the first three lots.

12      The third set of agreements (‘the 2017 agreements’) were signed on 19 May 2017. Those agreements were also secured following a call for tenders organised by the APFTE on 13 March 2017. The specifications of that call for tenders required candidates to offer to promote tourist and economic flows to Montpellier and its region through all available media on the market and covered seven different lots, entitled, inter alia, ‘Wallonia’, ‘Rhineland-Palatinate’ and ‘Yorkshire’. Ryanair submitted bids for each of those three lots and was awarded all of them.

B.      The administrative procedure

13      On 23 March 2017, the European Commission received a complaint from the airline Air France alleging that the APFTE had granted unlawful State aid to Ryanair between 2010 and 2015 in the form of marketing services agreements to support its air transport operations to and from Montpellier airport.

14      On 24 May 2017, the Commission sent the French authorities a non-confidential version of the complaint and invited them to submit comments and answer certain questions. The French authorities submitted replies to the requests for information.

15      By letter of 4 July 2018, the Commission notified the French authorities of its decision to initiate the procedure provided for in Article 108(2) TFEU in respect of the agreements at issue (‘the opening decision’). By publishing that decision in the Official Journal of the European Union on 9 November 2018 (OJ 2018 C 406, p. 17), the Commission invited the parties concerned to submit comments.

16      The Commission received comments from Ryanair, the Region of Occitania, the CCIM, Montpellier Méditerranée Métropole, the Communauté d’agglomération du Pays de l’Or, the APFTE and another entity.

17      By letter of 15 January 2019, Ryanair requested, in accordance with Article 41(1) and (2) of the Charter of Fundamental Rights of the European Union (‘the Charter’), that, before adopting a final decision, the Commission should grant it access to the file and afford it an opportunity to present its views on the findings of the investigation. By letter of 12 February 2019, the Commission refused that request.

C.      The contested decision

18      At the end of the formal investigation procedure, the Commission adopted, on 2 August 2019, Decision C(2019) 5729 final on State aid SA.47867 2018/C (ex 2017/FC) granted by France to Ryanair and AMS (‘the initial decision’). On 13 October 2020, the Commission corrected the initial decision by Decision C(2020) 6938 final (‘the corrigendum’). On 19 November 2020, the contested decision, which corresponds to the initial decision as corrected, was published in the Official Journal of the European Union.

19      In the contested decision, in the first place, the Commission found, first, that the applicants, as an airline and one of its subsidiaries, carried out activities that were economic in nature.

20      Secondly, it inferred, on the basis of a range of indicators, that the APFTE’s decisions were imputable to the French State and found that the payments made by the APFTE to the applicants had been granted through State resources.

21      Thirdly, the Commission noted, in assessing the economic advantage, that the links between the airport services agreements concluded by AMM, the purpose of which was to lay down the financial and operational conditions of the commercial flights operated by Ryanair to and from Montpellier airport, and the agreements at issue, concluded by the APFTE, were not sufficient to justify a joint assessment and decided to carry out an individual assessment of the agreements at issue. It took the view that, in concluding those agreements, the APFTE was pursuing a regional policy objective, was acting only as a public authority and could not have expected any financial gain as a market economy operator. It also considered that the purchase of marketing services did not meet a real need, but rather was intended to subsidise Ryanair flights to and from Montpellier airport, with the result that the ‘market economy operator’ test (‘“MEO” test’) was not applicable. It added that, even if that test were applicable, it would not be satisfied, since the prices paid under the agreements at issue were not in line with the market price. For those reasons, it concluded that the agreements at issue conferred an economic advantage on Ryanair.

22      Fourthly, the Commission noted, in essence, that the agreements at issue were individual measures, concluded between the APFTE and the applicants, containing specific contractual obligations and not applying public prices, with the result that they conferred a selective economic advantage.

23      Fifthly, it found that the agreements at issue affected trade between Member States and distorted competition.

24      The Commission concluded that the agreements at issue constituted State aid within the meaning of Article 107(1) TFEU.

25      In the second place, the Commission noted, in essence, that the French Republic had not provided any analysis and that it did not have any information to show that the agreements at issue were compatible with the internal market. It therefore found that the aid granted to the applicants was incompatible with the internal market.

26      In the third place, the Commission found that the agreements at issue had not been notified to the Commission. It therefore found that the aid granted to the applicants was unlawful.

27      The operative part of the contested decision reads as follows:

‘Article 1

The measures implemented by [the French Republic] on the basis of the marketing agreements concluded between the APFTE and Ryanair or its subsidiary [AMS] between 2010 and 2018 – namely the [2010 agreement], the [2013 agreements] and the [2017 agreements] (and their amendments and renewal agreements) – constitute State aid to Ryanair and its subsidiary [AMS] which is unlawful and incompatible with the internal market within the meaning of Article 107(1) TFEU.

Article 2

1.      [The French Republic] shall recover the aid referred to in Article 1 from the beneficiaries.

2.      Ryanair and [AMS] are to be regarded as a single economic entity and are therefore jointly and severally liable for repaying the aid paid by the APFTE to either of them …’

II.    Forms of order sought

28      The applicants claim that the Court should:

–        annul the contested decision;

–        order the Commission to pay the costs.

29      The Commission, supported by the Council, contends that the Court should:

–        dismiss the action;

–        order the applicants to pay the costs.

III. Law

A.      Substance

30      In support of the action, the applicants rely on six pleas in law. The first plea in law alleges infringement of the principle of good administration and of the right to an effective remedy and to a fair trial enshrined in Articles 41 and 47 of the Charter. The second plea in law alleges that the Commission erred in law, made a manifest error of assessment and failed to state reasons inasmuch as it found that the ‘MEO’ test was not applicable. The third plea in law alleges infringement of Article 107(1) TFEU, inasmuch as the Commission misapplied the ‘real need’ test. The fourth plea in law alleges that the Commission manifestly erred in its assessment, erred in law and infringed Article 107(1) TFEU inasmuch as it incorrectly assessed the region’s and the airport’s need for marketing services. The fifth plea in law alleges infringement of Article 107(1) TFEU, inasmuch as the Commission failed to identify AMM as a beneficiary of the aid. The sixth plea in law alleges infringement of Article 107(1) TFEU, inasmuch as the Commission failed to establish the selectivity of the agreements at issue.

1.      The first plea in law, alleging infringement of the principle of good administration and of the right to an effective remedy and to a fair trial enshrined in Articles 41 and 47 of the Charter

31      The applicants submit that the Commission infringed the principle of good administration enshrined in Article 41(1) and (2) of the Charter and the right to an effective remedy and to a fair trial provided for in Article 47 of the Charter by failing to grant them access to the investigation file and by depriving them of the opportunity to make their views known on that file before adopting the contested decision. According to the applicants, those procedural errors also infringed their rights of defence and must result in the annulment of the contested decision.

32      In particular, the applicants emphasise that, since the entry into force of the FEU Treaty on 1 December 2009, Article 41 of the Charter constitutes primary EU law overriding any contrary provision of secondary EU law, such as 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) and Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 TFEU (OJ 2015 L 248, p. 9).

33      The applicants claim that they are entitled to rely on the right to good administration provided for in Article 41 of the Charter, because the State aid investigation conducted by the Commission in respect of their trade agreements with the APFTE constitutes an ‘affair’ for the purposes of paragraph 1 of that article. They argue that they enjoy the procedural rights provided for in paragraphs 1 and 2 thereof, which go beyond the rights conferred by Regulation No 659/1999. Paragraph 2(b) of that article grants every person a right to have access to ‘his or her’ file – in the present case, the file concerning the investigation into the agreements at issue. Moreover, the right to be heard, provided for in paragraph 2(a) of that article, requires that the applicants should be afforded the opportunity effectively to make known their views, which implies access to the Commission’s file and prior notification of the evidence and considerations on which the Commission intended to base its final decision.

34      The applicants add that observance of the right of access to the file and of the right to be heard provided for in Article 41 of the Charter furthers the aim of Article 108(2) TFEU, which is the gathering by the Commission of the most pertinent and comprehensive information. The observance of the procedural rights of the parties concerned is especially important in State aid proceedings, in which the Member State responsible for the aid and the beneficiary often have conflicting interests. The applicants claim that, in view of the procedural failures, first, the procedure before the Commission also fails to meet the requirements laid down in Article 47 of the Charter and, second, they have been deprived of the right to a fair trial enshrined in that article.

35      The Commission and the Council dispute those arguments.

36      In the first place, it should be noted, first, that Article 41 of the Charter provides for the right to good administration. Under paragraph 1 of that article, every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions of the Union. In addition, in accordance with paragraph 2 of that article, that right includes in particular the right of every person to be heard, before any individual measure which would affect him or her adversely is taken, and the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy.

37      Furthermore, according to settled case-law, observance of the rights of the defence is a fundamental principle of EU law which requires that the person against whom an administrative procedure has been initiated must be afforded the opportunity, during that procedure, effectively to make known his or her views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim that there has been an infringement of EU law (see judgment of 10 July 1986, Belgium v Commission, 40/85, EU:C:1986:305, paragraph 28 and the case-law cited).

38      Secondly, it should be recalled that, according to settled case-law, the procedure for reviewing State aid provided for in Article 108 TFEU is a procedure initiated only in respect of the Member State responsible for granting the aid. Only the Member State concerned, as the addressee of the future Commission decision, may therefore rely on actual rights of defence. By contrast, the undertakings who are beneficiaries of the aid and their competitors are considered only to be parties concerned in the procedure for the purposes of Article 108(2) TFEU. No provision reserves any special role to the beneficiaries of the aid, among all the parties concerned. Those beneficiaries cannot rely on rights as extensive as the rights of the defence as such and cannot seek to engage in an adversarial debate with the Commission (see, to that effect, judgments of 24 September 2002, Falck and Acciaierie di Bolzano v Commission, C‑74/00 P and C‑75/00 P, EU:C:2002:524, paragraphs 81 to 83, and of 12 May 2011, Région Nord-Pas-de-Calais and Communauté d’agglomération du Douaisis v Commission, T‑267/08 and T‑279/08, EU:T:2011:209, paragraphs 71 and 78).

39      Accordingly, the parties concerned, unlike the Member State responsible for granting the aid, do not have a right under the procedure for reviewing State aid to consult the documents on the Commission’s administrative file (judgment of 29 June 2010, Commission v Technische Glaswerke Ilmenau, C‑139/07 P, EU:C:2010:376, paragraph 58).

40      The parties concerned have, in essence, the role of sources of information for the Commission in the procedure for reviewing State aid. It follows that, far from enjoying the same rights of defence as those which individuals in respect of whom a procedure has been initiated are recognised as having, the parties concerned have only the right to be involved in the procedure to the extent appropriate in the light of the circumstances of the case (see judgment of 12 May 2011, Région Nord-Pas-de-Calais and Communauté d’agglomération du Douaisis v Commission, T‑267/08 and T‑279/08, EU:T:2011:209, paragraph 74 and the case-law cited).

41      In the present case, although the applicants are parties concerned for the purposes of Article 108(2) TFEU, so that they have a right to see the Commission’s investigation into the agreements at issue conducted impartially and fairly for the purposes of paragraph 1 of Article 41 of the Charter, paragraph 2 of that article does not grant them a right of access to the Commission’s administrative file; nor does it grant them the right to be heard regarding matters on which the Commission intends to base its final decision (see, to that effect, judgment of 13 December 2018, Ryanair and Airport Marketing Services v Commission, T‑165/15, EU:T:2018:953, paragraphs 60 and 61).

42      In that respect, the Charter is not intended to alter the nature of the review of State aid established by the FEU Treaty or to confer on third parties a right of scrutiny not provided for by Article 108 TFEU (judgment of 13 December 2018, Transavia Airlines v Commission, T‑591/15, EU:T:2018:946, paragraph 50 (not published)).

43      If the parties concerned in a procedure for reviewing State aid were able to obtain access to the documents on the Commission’s administrative file, the system for the review of State aid would be called into question. Whatever the legal basis on which it is granted, access to the file enables the parties concerned to obtain all the comments and documents submitted to the Commission, and, where appropriate, adopt a position thereon in their own comments, which is likely to alter the nature of the procedure for reviewing State aid (see, to that effect, judgment of 29 June 2010, Commission v Technische Glaswerke Ilmenau, C‑139/07 P, EU:C:2010:376, paragraphs 58 and 59).

44      Similarly, finding that there was an obligation for the Commission to send the applicants prior notification of the evidence on which it intended to base its final decision would be tantamount to establishing an adversarial debate such as that initiated for the Member State responsible for granting the aid, although the applicants, as beneficiaries, have essentially played only the role of a source of information in the procedure (see, to that effect, judgment of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom, C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraphs 180 and 181).

45      It follows that, by adopting the contested decision without granting the applicants access to the investigation file or affording them the opportunity to make their views known regarding that file before it adopted the contested decision, the Commission did not disregard the principle of good administration laid down in Article 41(1) and (2) of the Charter.

46      None of the other arguments put forward by the applicants in that regard is capable of undermining that finding.

47      First, to the extent that the applicants call into question the validity of Regulation No 659/1999 as being contrary to the Charter, it should be borne in mind that that argument is also based on the erroneous premiss that the Charter grants beneficiaries of State aid the right of access to the Commission’s State aid file and the right to make their views known prior to the adoption of a final decision on that aid.

48      Secondly, the applicants claim that observance of the right of access to the file and of the right to be heard provided for in Article 41 of the Charter furthers the aim of Article 108(2) TFEU, which is the gathering by the Commission of the most pertinent and comprehensive information. The observance of the procedural rights of the parties concerned is especially important in State aid proceedings, in which the Member State responsible for the aid and the beneficiary of that aid often have conflicting interests, as is demonstrated in the present case by the existence of a conflict of interest for the French Republic, which is a major shareholder of Air France.

49      In that regard, it should be borne in mind that, according to the case-law, the parties concerned cannot rely on actual rights of defence comparable to those of the Member State even if that State, which granted the State aid, and the parties concerned, as the beneficiaries thereof, may have diverging interests in the context of such a procedure (see, to that effect, judgments of 15 December 2009, EDF v Commission, T‑156/04, EU:T:2009:505, paragraph 104, and of 16 March 2016, Frucona Košice v Commission, T‑103/14, EU:T:2016:152, paragraph 54).

50      The fact that the Member State concerned does not defend the interests of the beneficiary of the aid is not capable of altering the role of the beneficiary during the administrative procedure or the nature of its participation in that procedure, so as to confer on it, in respect of the rights of the defence, guarantees comparable to those of that Member State (judgment of 16 March 2016, Frucona Košice v Commission, T‑103/14, EU:T:2016:152, paragraph 77).

51      Thirdly, the applicants also cannot validly rely on the judgment of 12 July 1973, Commission v Germany (70/72, EU:C:1973:87, paragraph 19), concerning the aim of the communication required by Article 108(2) TFEU, in order to claim that that provision does not preclude the parties concerned being granted rights additional to the right to submit their comments during the administrative procedure. On the contrary, that case-law essentially confers on the parties concerned the role of sources of information. Likewise, according to the case-law, the Commission is not obliged, under the system of Articles 107 and 108 TFEU, to involve third parties in the administrative procedure in an extensive manner (see, to that effect, judgment of 22 October 1996, Skibsværftsforeningen and Others v Commission, T‑266/94, EU:T:1996:153, paragraph 258). Therefore, it is not apparent from that case-law that the extensive involvement of third parties, as claimed by the applicants, is compatible with the general scheme of the procedure for reviewing State aid established by Article 108 TFEU.

52      In the second place, in so far as, in the context of the present plea, the applicants also allege infringement of the rights of the defence, it is necessary to examine the right of the parties concerned, for the purposes of Article 108(2) TFEU, to be involved in the administrative procedure in the light of the circumstances of the case.

53      In that regard, it is settled case-law that, in the context of an examination under Article 108(2) TFEU, the Commission is obliged to give notice to the parties concerned to submit their comments (see judgment of 8 May 2008, Ferriere Nord v Commission, C‑49/05 P, not published, EU:C:2008:259, paragraph 68 and the case-law cited). With regard to that obligation, the Court of Justice has ruled that the publication of a notice in the Official Journal of the European Union is an appropriate means of informing all the parties concerned that a procedure has been initiated (judgment of 14 November 1984, Intermills v Commission, 323/82, EU:C:1984:345, paragraph 17), while also pointing out that the sole aim of that communication is to obtain from the parties concerned all the information required for the guidance of the Commission with regard to its future action (see judgment of 16 March 2016, Frucona Košice v Commission, T‑103/14, EU:T:2016:152, paragraph 56 and the case-law cited).

54      In addition, according to the case-law, where the Commission decides to initiate the formal investigation procedure, it is permissible for that decision merely to summarise the relevant issues of fact and law, include a preliminary assessment as to the aid character of the State measure in question and set out its doubts as to the measure’s compatibility with the internal market (judgment of 23 October 2002, Diputación Foral de Guipúzcoa and Others v Commission, T‑269/99, T‑271/99 and T‑272/99, EU:T:2002:258, paragraph 104).

55      Accordingly, the decision to initiate the formal investigation procedure must give the parties concerned the opportunity effectively to participate in that procedure, during which they will have the opportunity to put forward their arguments. For that purpose, it is sufficient for the parties concerned to be aware of the reasoning which has led the Commission provisionally to conclude that the measure in issue might constitute new aid incompatible with the internal market (judgment of 30 April 2002, Government of Gibraltar v Commission, T‑195/01 and T‑207/01, EU:T:2002:111, paragraph 138).

56      In the present case, it is common ground that, following publication of the decision to initiate the formal investigation procedure inviting all the parties concerned to submit comments, the Commission received comments from the applicants. Thus, by letter of 15 January 2019, Ryanair submitted its comments in that regard and provided a number of documents.

57      In the decision to initiate the formal investigation procedure, the Commission explained sufficiently clearly the reasons on which it had based its provisional conclusion that (i) the agreements at issue granted the applicants aid within the meaning of Article 107(1) TFEU and (ii) that aid was incompatible with the internal market. It gave a description of the agreements at issue and carried out a provisional assessment of the potential aid under those agreements in the light of the criteria laid down in Article 107(1) TFEU comprising the definition of State aid, before, lastly, examining their compatibility with the internal market.

58      As regards their mere right to be involved in the administrative procedure, the applicants have adduced no evidence to show that they did not have sufficient knowledge of the reasoning provisionally followed and, therefore, that they were not able effectively to submit their comments in that regard.

59      It follows that, during the formal investigation procedure which resulted in the adoption of the contested decision, the Commission did not fail to observe the applicants’ rights of defence.

60      In the third place, under the first paragraph of Article 47 of the Charter, everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article. It follows from the case-law of the Court of Justice that the effectiveness of the judicial review guaranteed by that provision requires, inter alia, that the person concerned be able to defend his or her rights in the best possible conditions and to decide, in full knowledge of the facts, whether it would be useful to bring an action against a given entity before the competent court (see judgment of 29 April 2021, Banco de Portugal and Others, C‑504/19, EU:C:2021:335, paragraph 57 and the case-law cited).

61      According to settled case-law, the effectiveness of the judicial review guaranteed by Article 47 of the Charter requires that the person concerned be able to ascertain the reasons upon which the decision taken in relation to him or her is based, either by reading the decision itself or by requesting and obtaining notification of those reasons, so as to make it possible for him or her to defend his or her rights in the best possible conditions and to decide, in full knowledge of the facts, whether it would be useful to bring proceedings before the competent court (see, to that effect, judgment of 4 June 2013, ZZ, C‑300/11, EU:C:2013:363, paragraph 53 and the case-law cited).

62      In the present case, the applicants had access to the contested decision and were able to challenge it before the Court by means of an action brought on the basis of Article 263 TFEU, which demonstrates that their right to an effective remedy has been observed.

63      Furthermore, in so far as the applicants merely rely on the same procedural defects as those set out under the complaint based on Article 41 of the Charter, which they claim deprived them of a fair trial, the Commission cannot be criticised for having infringed any of the applicants’ procedural rights, as is apparent from paragraph 59 above.

64      Therefore, the applicants’ arguments alleging infringement of Article 47 of the Charter must also be rejected.

65      In the light of the foregoing considerations, the first plea in law must be rejected as unfounded.

2.      The second plea in law, alleging that the Commission erred in law, made a manifest error of assessment and failed to state reasons inasmuch as it found that the ‘MEO’ test was not applicable

66      This plea is divided into four parts. The first part alleges, in essence, a failure to fulfil the obligation to state reasons, as well as infringement of the principle of legal certainty and the principle of good administration, arising from an alleged change in the Commission’s position as regards the applicability of the ‘MEO’ test. The second part alleges, in essence, that the Commission erred in law by failing to apply the conditions laid down in the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415) (‘the Altmark conditions’). The third part alleges, in essence, a manifest error of assessment, an error of law and a failure to state reasons, inasmuch as the Commission found that AMM and the APFTE did not constitute a single entity for the purpose of applying the ‘MEO’ test. The fourth part alleges that the contested decision was contradictory as regards the application of the ‘MEO’ test.

67      As a preliminary point, it should be recalled that, under Article 107(1) TFEU, save as otherwise provided in the Treaties, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods is, in so far as it affects trade between Member States, incompatible with the internal market.

68      According to the settled case-law of the Court of Justice, classification as ‘State aid’ within the meaning of Article 107(1) TFEU requires that all the conditions set out in that provision be satisfied. Thus, first, there must be an intervention by the State or through State resources; second, that intervention must be liable to affect trade between Member States; third, it must confer a selective advantage on the beneficiary thereof; fourth, it must distort or threaten to distort competition (judgments of 21 December 2016, Commission v Hansestadt Lübeck, C‑524/14 P, EU:C:2016:971, paragraph 40, and of 21 December 2016, Commission v World Duty Free Group and Others, C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraph 53).

69      Regarding the condition that the measure in question must be viewed as having conferred an advantage on its beneficiary, it should be recalled that measures which, whatever their form, are likely directly or indirectly to favour certain undertakings or are to be regarded as an economic advantage which the undertaking who is the beneficiary thereof would not have obtained under normal market conditions are regarded as State aid (see judgment of 4 March 2021, Commission v Fútbol Club Barcelona, C‑362/19 P, EU:C:2021:169, paragraph 58 and the case-law cited).

70      In order to assess whether the same measure would have been adopted under normal market conditions by a private operator, it is necessary to determine whether, in similar circumstances, a market economy operator of a size comparable to that of the bodies managing the public sector might have been prompted to conclude the agreement concerned (see, to that effect and by analogy, judgment of 3 July 2014, Spain and Others v Commission, T‑319/12 and T‑321/12, not published, EU:T:2014:604, paragraphs 40 and 42).

71      The assessment of the conditions under which such an advantage was conferred is therefore carried out, as a rule, by applying the market economy operator principle (see, to that effect and by analogy, judgments of 5 June 2012, Commission v EDF, C‑124/10 P, EU:C:2012:318, paragraph 78, and of 20 September 2017, Commission v Frucona Košice, C‑300/16 P, EU:C:2017:706, paragraphs 21 and 22).

72      It is in the light of those considerations that the merits of the second plea in law must be assessed.

(a)    The first part, alleging, in essence, a failure to fulfil the obligation to state reasons, as well as infringement of the principle of legal certainty and the principle of good administration, arising from an alleged change in the Commission’s position as regards the applicability of the ‘MEO’ test

73      The applicants complain that, during the procedure, the Commission changed its position as regards the applicability of the ‘MEO’ test. First, in the decision to initiate the formal investigation procedure, the Commission noted that the ‘MEO’ test was not applicable to the agreements at issue. Next, it found, in the initial decision, that that test was applicable, but that it had not been satisfied. Lastly, in the contested decision, the Commission again changed its position and concluded that the ‘MEO’ test was not applicable. According to the applicants, the same statement of reasons cannot support two different conclusions. As such, the Commission failed to fulfil its obligation to state reasons and infringed the principle of legal certainty and the right to good administration.

74      In the reply, the applicants claim that the existence of an economic activity is a sufficient condition for the application of the ‘MEO’ test. The Court of Justice reaffirmed that principle in the judgment of 20 September 2017, Commission v Frucona Košice (C‑300/16 P, EU:C:2017:706). In addition, it is apparent from the judgment of 17 December 2008, Ryanair v Commission (T‑196/04, EU:T:2008:585), that the fixing of the amount of landing charges and the accompanying indemnity is an activity directly connected with the management of airport infrastructure, and the setting of airport charges is closely connected with the use and operation of the airport, which is an economic activity. Consequently, even if the agreements at issue were a means for the APFTE to subsidise the costs incurred by the applicants in carrying on operations at Montpellier airport, this would be an economic activity justifying the application of the ‘MEO’ test. Therefore, the Commission did not apply the correct method for assessing the existence of an advantage.

75      At the hearing, the applicants withdrew the complaint alleging infringement of essential procedural requirements inasmuch as the corrigendum had not been adopted using the same procedure as the contested decision; this was duly noted in the minutes of the hearing.

76      The Commission disputes the applicants’ arguments.

77      In the present case, it should be pointed out that, in the decision to initiate the formal investigation procedure, the Commission stated that the ‘MEO’ test was not applicable to the agreements at issue and that, in any event, it would not have been satisfied. Next, it should be noted that, in the initial decision, the Commission specified that, although that test would have been applicable in principle, it had not been satisfied. Lastly, it should be observed that, in the contested decision, the Commission found that the ‘MEO’ test was not applicable and that, in any event, it would not have been satisfied.

78      Accordingly, it must be held, as the applicants argue, that the Commission’s position on the applicability of the ‘MEO’ test changed during the procedure.

79      However, the fact remains, as the Commission contends, that the decision which is the subject of the action is that which was published in the Official Journal of the European Union. The applicants were therefore in a position to challenge the final version of the contested decision.

80      Contrary to the view taken by the applicants, the fact that the Commission changed its position during the procedure does not constitute a failure to fulfil the obligation to state the reasons for the contested decision.

81      In that respect, it should be borne in mind that, according to settled case-law, the statement of reasons required by Article 296 TFEU must be appropriate to the measure in question and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the court having jurisdiction to exercise its power of review (see, to that effect, judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 147 and the case-law cited).

82      Fulfilment of the obligation to state reasons must be assessed by reference to the circumstances of the case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom that measure is of concern for the purposes of the fourth paragraph of Article 263 TFEU, may have in obtaining explanations. It is not necessary for the statement of reasons 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 and of Article 41(2)(c) of the Charter must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgments of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 150, and of 13 December 2016, Printeos and Others v Commission, T‑95/15, EU:T:2016:722, paragraph 45).

83      It follows that fulfilment of the obligation to state reasons must be assessed by reference to the content of the contested measure.

84      In the present case, the Commission set out, in recitals 169 to 324 of the contested decision, the reasons why it considered that the ‘MEO’ test was not applicable or, in any event, was not satisfied. The contested decision does not therefore disregard the obligation to state reasons in that regard.

85      Nor can the applicants complain that the Commission infringed the principle of legal certainty, which seeks to ensure that situations and legal relationships arising under EU law remain foreseeable (judgment of 3 July 2019, PT v EIB, T‑573/16, EU:T:2019:481, paragraph 233), and requires that all measures of the administration which have legal effects be clear and precise, so that the parties concerned may be able to ascertain unequivocally what their rights and obligations are and to take steps accordingly (see, to that effect, judgment of 27 January 2016, DF v Commission, T‑782/14 P, EU:T:2016:29, paragraph 45 and the case-law cited).

86      In that regard, it should be noted that the applicants do not dispute the clarity and precision of the contested decision, which is the measure producing legal effects, but merely claim that the Commission infringed the principle of legal certainty by changing its position during the procedure.

87      In so far as, in accordance with the case-law cited in paragraph 85 above, the applicants were in a position to ascertain unequivocally what their rights and obligations were and to take steps accordingly following the publication of the contested decision, the Commission cannot be accused of infringing the principle of legal certainty.

88      The applicants’ argument alleging infringement of the principle of good administration, laid down in Article 41(2) of the Charter, must be rejected for the same reasons as those set out in paragraphs 36 to 51 above.

89      As to the remainder, the applicants claim, in essence, that the Commission incorrectly considered that the ‘MEO’ test was not applicable, as the existence of an economic activity is a sufficient condition to trigger its applicability. It should be noted that that argument is not based on a failure to fulfil the obligation to state reasons or infringement of the principle of legal certainty or the principle of good administration, but overlaps with certain complaints in the fourth part of the present plea. It will therefore be analysed in connection with those complaints.

90      Therefore, the first part of the second plea in law must be rejected as unfounded.

(b)    The second part, alleging, in essence, that the Commission erred in law by failing to apply the Altmark conditions

91      The applicants claim that the finding that the APFTE was aiming to achieve public policy objectives should, regardless of the validity of that finding, have triggered the application of the Altmark conditions in order to determine the existence of State aid. They rely on the judgment of 1 March 2017, SNCM v Commission (T‑454/13, EU:T:2017:134), and on an earlier Commission decision, in order to conclude that either the ‘MEO’ test or, alternatively, the Altmark conditions had to be applied and that, by failing to apply the Altmark conditions, the Commission erred in law.

92      The Commission disputes the applicants’ arguments.

93      In that regard, it should be borne in mind that, in accordance with the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415), a State measure regarded as compensation for services provided by the recipient undertakings in order to discharge public service obligations, so that those undertakings do not enjoy a real financial advantage and the measure thus does not have the effect of placing them in a more favourable competitive position than their competitors, does not fall under Article 107(1) TFEU (judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg, C‑280/00, EU:C:2003:415, paragraph 87).

94      However, for such compensation to escape classification as State aid in a particular case, four cumulative conditions must be satisfied, the first of which is that the recipient undertaking must actually have public service obligations to discharge and that the obligations must be clearly defined (judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg, C‑280/00, EU:C:2003:415, paragraphs 88 and 89).

95      In the absence of evidence in the file which would suggest the existence of public service obligations, the Commission is not required to determine whether the Altmark conditions are applicable.

96      In the present case, the Commission stated, in essence, in recital 181 of the contested decision, that it was not apparent from the file that Ryanair was subject to public service obligations. This is not disputed by the applicants.

97      In that context, since one of the cumulative conditions laid down in the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415), is not satisfied, the Commission cannot be criticised for not having applied that judgment in the present case.

98      The applicants’ argument based on the judgment of 1 March 2017, SNCM v Commission (T‑454/13, EU:T:2017:134), can only confirm that conclusion. As the applicants themselves observe, the case which gave rise to that judgment concerned an agreement whereby a public authority entrusted economic operators with the management of a public service in return for financial compensation, and the public authority presented itself as the organising and delegating authority of the public service, so that there were clear and precise indications of the existence of public service obligations, entailing the application of the Altmark conditions (judgment of 1 March 2017, SNCM v Commission, T‑454/13, EU:T:2017:134, paragraphs 233 and 267). The reference, in recital 180 of the contested decision, to that judgment is made solely in support of the Commission’s assessment that the ‘MEO’ test is not applicable inasmuch as the APFTE was acting as a public authority.

99      The same is true of the earlier Commission decision referred to by the applicants concerning the aviation sector, in which the Commission adopted the same approach.

100    Furthermore, contrary to the view taken by the applicants, it is not possible to apply the Altmark conditions as an alternative to the ‘MEO’ test, and vice versa.

101    Indeed, whereas, as is apparent from paragraph 93 above, the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415), applies where a State measure may be regarded as compensation for services provided by the recipient undertakings in order to discharge public service obligations, the ‘MEO’ test applies where the State acts as a private operator acting under normal market conditions (see, to that effect, judgment of 1 October 2015, Electrabel and Dunamenti Erőmű v Commission, C‑357/14 P, EU:C:2015:642, paragraph 144 and the case-law cited).

102    Accordingly, the Altmark conditions and the ‘MEO’ test are two analytical instruments which are applied in different situations.

103    The second part of the present plea in law must therefore be rejected as unfounded.

(c)    The third part, alleging, in essence, a manifest error of assessment, an error of law and a failure to state reasons, inasmuch as the Commission found that AMM and the APFTE did not constitute a single entity for the purpose of applying the ‘MEO’ test

104    First, the applicants complain that the Commission failed to examine whether AMM and the APFTE could constitute a single entity for the purpose of applying the ‘MEO’ test. They claim that the public members of the APFTE have a 40% shareholding in AMM. Thus, the Commission should have analysed whether AMM was generating revenue for the APFTE. Moreover, the applicants assert that the Commission should have examined whether the APFTE was pursuing commercial goals other than the payment of a dividend or other bonus from AMM, namely the goal of supporting flights in order to keep AMM viable and protect the value of its shareholding or in order to prepare for its takeover. By failing to examine whether AMM and the APFTE could constitute a single entity for the purpose of applying the ‘MEO’ test, the Commission vitiated the contested decision by a failure to state reasons.

105    Secondly, the applicants claim that, when the Commission obliquely reviewed the links between AMM and the APFTE, it based the contested decision on the lack of an ownership link between those entities and on the various proportions of contributions. However, in their view, an ownership link is not necessary for the purpose of applying the ‘MEO’ test as other economic links are sufficient to justify the joint assessment of two entities. They also argue that proportionality of contributions is not a requirement in that regard. In addition, the fact that the APFTE was pursuing public policy objectives is irrelevant for the purpose of defining the possible grantor of the aid. The Commission erred in law by taking into account (i) the lack of an ownership link between AMM and the APFTE and (ii) the various proportions of contributions of their members.

106    Thirdly, the applicants note that AMM exercised a dominant influence on the APFTE until at least 2011. In addition, two or more entities may act as a single entity for the purpose of applying the ‘MEO’ test where their economic interests are aligned. Lastly, it is necessary to broaden the scope of the entities considered as grantors of the aid, by including AMM, the APFTE, and the State. By failing to consider that AMM and the APFTE constituted a single entity for the purpose of applying the ‘MEO’ test, the Commission made a manifest error of assessment, which led to the exclusion of the examination of the airport services agreements.

107    The Commission disputes the applicants’ arguments.

108    In the present case, it should be noted, in the first place, that the Commission set out, in recitals 157 to 168 of the contested decision, a number of assessments. First, it noted that the airport services agreements and the agreements at issue had been concluded by two separate legal persons, namely AMM and the APFTE, which pursued different goals and could not be classified as a single economic entity.

109    Secondly, it added that although the public members of the APFTE are also shareholders of AMM, their participation in funding the agreements at issue was out of proportion to their shareholding in AMM. In particular, it noted that (i) although the State held 60% of the share capital of AMM, it was not a member of the APFTE; (ii) the CCIM, which held 25% of the share capital of AMM, had contributed only between 10 and 20% of the budget of the APFTE; and (iii) the remainder – between 80 and 90% – of the APFTE’s budget came from authorities which held 15% of the share capital of AMM.

110    Thirdly, the Commission specified that the funding provided for the agreements at issue by the public members of the APFTE was not related to their participation in AMM’s capital. If the agreements at issue had resulted in an increase in the revenue associated with the airport services agreements, the public members of the APFTE would have benefited from only 40% of the revenue, whereas they would have contributed between 95 and 100% of the marketing expenditure. Furthermore, it stated that the APFTE sought to promote the regional economy. Moreover, the agreements at issue did not have the aim of increasing the income of the public members of the APFTE which was derived from AMM, in particular through the payment of a dividend or other bonus by AMM. The Commission thus considered that the links between the airport services agreements and the agreements at issue were not sufficient to justify a joint assessment.

111    It is apparent from those assessments that the Commission analysed whether AMM and the APFTE could constitute a single economic entity for the purpose of applying the ‘MEO’ test when examining whether the airport services agreements and the agreements at issue should be the subject of a joint assessment.

112    In that regard, it should be borne in mind that, according to the case-law, reasoning may be implicit, on condition that it enables the persons concerned to know the reasons for the decision and provides the competent court with sufficient material for it to exercise its power of review (see, to that effect and by analogy, judgment of 26 January 2017, Hansa Metallwerke and Others v Commission, C‑611/13 P, EU:C:2017:47, paragraph 36 and the case-law cited).

113    In the present case, it is apparent from the arguments set out in paragraphs 104 to 106 above that the applicants were able to understand the explanations provided by the Commission in the contested decision inasmuch as AMM and the APFTE could not be regarded as constituting a single entity. Moreover, as is apparent from paragraphs 115 to 131 below, the reasoning in the contested decision provides the Court with sufficient material for it to exercise its power of review.

114    It follows that, whatever the merits of the reasons given, the Commission fulfilled the obligation to state reasons.

115    In the second place, it is necessary to examine, in the light of the applicants’ arguments, whether the Commission erred in law or made a manifest error of assessment in not finding that AMM and the APFTE constituted a single entity for the purpose of applying the ‘MEO’ test.

116    In that regard, it should be noted that it is common ground between the parties that the public members of the APFTE have a 40% shareholding in AMM.

117    However, contrary to the view taken by the applicants, that fact alone is not sufficient to conclude that AMM and the APFTE must be regarded as a single entity for the purpose of applying the ‘MEO’ test.

118    If an ownership link is not a necessary condition and if other economic links are sufficient for the conduct of two entities in their relations with the applicants to be the subject of a joint assessment for the purpose of applying the ‘MEO’ test, those economic links must be sufficiently close (see, to that effect, judgment of 13 December 2018, Ryanair and Airport Marketing Services v Commission, T‑53/16, EU:T:2018:943, paragraphs 372 to 375).

119    That is the case where one of those entities exercises a decisive influence over the decisions taken by the other with regard to the beneficiaries of the aid (see, to that effect, judgment of 13 December 2018, Ryanair and Airport Marketing Services v Commission, T‑53/16, EU:T:2018:943, paragraph 374), or if one of them is economically dependent on the other, on account, in particular, of its financial structure or the transfer of resources from which it benefits (see, to that effect, judgment of 17 December 2008, Ryanair v Commission, T‑196/04, EU:T:2008:585, paragraphs 53 to 57).

120    In the present case, it is not apparent from the documents before the Court that the economic links between AMM and the APFTE are sufficiently close for them to be regarded as a single entity for the purpose of applying the ‘MEO’ test.

121    First of all, the applicants do not dispute that, as is apparent from paragraph 3 above, AMM has been responsible for the management of Montpellier airport since 2009. In accordance with recitals 28, 30 and 162 of the contested decision, the APFTE was set up in connection with the change in the management of that airport and was tasked with enabling the conclusion of marketing or promotional agreements with airlines, which the CCIM had previously concluded as manager of Montpellier airport. In those circumstances, it must be held, as the Commission did in recital 161 of the contested decision, that AMM and the APFTE are two separate legal persons pursuing different goals.

122    Next, the applicants do not dispute that, as is apparent, in essence, from recital 163 of the contested decision, the French State holds 60% of the share capital of AMM and the public members of the APFTE have only a 40% shareholding in that capital. Thus, the shareholding structure does not lead to the conclusion that AMM exercises a decisive influence over the decisions taken by the APFTE.

123    Lastly, the applicants do not dispute that, as is apparent from recital 164 of the contested decision, the participation of the public members of the APFTE in the financing of the agreements at issue was disproportionate to their shareholding in AMM. At the material time, the French State held 60% of the share capital of AMM, but was not a member of the APFTE; the CCIM, which held 25% of the share capital of AMM, contributed only between 10 and 20% of the APFTE’s budget; and the other public members of the APFTE, which held only 15% of the share capital of AMM, contributed the remainder of the APFTE’s budget – between 80 and 90%. In those circumstances, it must be held that there is no link between the participation of the public members of the APFTE in AMM and the revenue expected from the agreements at issue.

124    Unlike other State aid investigations referred to by the applicants, in which the Commission carried out a joint assessment of the airport services agreements and the marketing services agreements, in the present case, the APFTE is not the operator of Montpellier airport.

125    Therefore, the Commission cannot be criticised for not having found that AMM and the APFTE should be regarded as a single entity for the purpose of applying the ‘MEO’ test.

126    The applicants have failed to call that analysis into question.

127    First, in so far as the applicants claim that, since the public members of the APFTE had a 40% shareholding in AMM, the Commission should have analysed the APFTE’s potential financial gains on the basis of a 40% share, it should be noted that such an analysis could have been relevant if the economic links between AMM and the APFTE had been considered sufficiently close for them to be regarded as a single entity for the purpose of applying the ‘MEO’ test. However, as is apparent from paragraph 125 above, that is not the case here.

128    The same is true of the applicants’ argument that the Commission erred in failing to consider whether the APFTE was pursuing commercial goals other than the payment of a dividend or other bonus from AMM.

129    Secondly, the applicants’ line of argument according to which the assessment, in recital 179 of the contested decision, that ‘it would not have made sense for minority shareholders controlling 40% of the airport to fund [95 to 100]% of the marketing agreements’ is at odds with economic rationality cannot lead to a finding that the contested decision contains a manifest error of assessment. The applicants’ arguments are not capable of demonstrating that the economic links between AMM and the APFTE were sufficiently close to warrant those entities being the subject of a joint assessment for the purpose of applying the ‘MEO’ test. That is true of the arguments alleging that (i) it would be economically rational for a minority shareholder to spend money on marketing services if its share of the net increase were higher; (ii) shareholder decisions on investment do not depend on whether or not they control the company benefiting from those investments; (iii) the reference to the economic literature on ‘activist’ investors suggests that passive investors may influence corporate governance; and (iv) the purchase of marketing services could pursue the same economic objective and it is not uncommon for investors to act as a consortium in the pursuit of objectives.

130    Thirdly, the applicants complain, in essence, that the Commission based its reasoning on the absence of an ownership link and on the fact that the proportions of contributions were different. It is true that, as is apparent from paragraphs 108 and 109 above, the Commission considered, in essence, that AMM and the APFTE constituted two separate legal persons which could not be classified as a single economic entity, and that, although the public members of the APFTE were also shareholders of AMM, their participation in funding the agreements at issue was out of proportion to their shareholding in AMM. However, it also took into account other factors, such as the different goals of AMM and the APFTE, the circumstances surrounding the APFTE’s creation, the APFTE’s intention of promoting the regional economy, and the lack of indicia that the purpose of the contribution of the public members of the APFTE to the agreements at issue was to increase the revenues they obtained from AMM. Thus, contrary to the applicants’ assertions, the Commission based its reasoning on a range of indicators which goes beyond the absence of an ownership link and the various proportions of contributions.

131    Fourthly, the applicants claim, in essence, that there were close economic links between AMM and the APFTE, in so far as, first of all, AMM had exercised a dominant influence on the APFTE until at least 2011. Next, the APFTE was created as a means for the CCIM to continue its involvement in financing the marketing of Montpellier airport despite the loss of its direct management role. Lastly, the French State also played a role as owner of the airport’s infrastructure.

132    In that regard, first of all, it is sufficient to note that, as is apparent from recitals 127 to 133 of the contested decision, even before March 2011, the APFTE’s strategic choices were ultimately predetermined by the CCIM and the other public members of the APFTE. This is not disputed by the applicants. In particular, it is apparent from recital 132 of that decision that the structure of the APFTE with its majority of private members ‘was deliberately chosen by the public bodies concerned in order to conceal the real influence of the CCIM and the local authorities over the payment of funds to the airlines’. As regards the period after March 2011, it is apparent from recital 43 of the contested decision, which is not disputed by the applicants, that the choice of geographical areas to be targeted by tourist marketing services was actually made by the local authorities and the CCIM, thus excluding AMM.

133    Next, assuming that the APFTE was created as a means for the CCIM to continue its involvement in financing the marketing of Montpellier airport despite losing its direct management role to AMM, the CCIM is only one member of the APFTE, so that that fact cannot in itself lead to a finding that AMM has a dominant influence over the APFTE.

134    Lastly, in so far as the applicants argue that it is necessary to broaden the scope of the entities considered as grantors of the aid, by including AMM, the APFTE and the State, the last of these having played a role as owner of the infrastructure of Montpellier airport, it must be held that, although such an argument is relevant in the analysis of the imputability to the State of the agreements at issue, it is not capable of establishing that the Commission incorrectly found that AMM and the APFTE should not be regarded as a single entity for the purpose of applying the ‘MEO’ test.

135    The third part of the present plea in law must therefore be rejected as unfounded.

(d)    The fourth part, alleging that the contested decision was contradictory as regards the application of the ‘MEO’ test

136    The applicants criticise the Commission, first, for having considered that the ‘MEO’ test was not applicable and, secondly, for having applied it by seeking to determine whether the APFTE had a ‘real need’ to purchase marketing services from the applicants and whether the price paid was in line with the market price. They submit that it is apparent from the case-law and the Commission Notice on the notion of State aid as referred to in Article 107(1) [TFEU] (OJ 2016 C 262, p. 1) that the ‘real need’ test is a variation of the ‘MEO’ test which must be applied only in exceptional circumstances, and that the comparison of the price of a transaction with a market price is a typical element of the ‘MEO’ test. Therefore, according to the applicants, there is a discrepancy in the contested decision’s statement of reasons.

137    The Commission disputes those arguments. It maintains that the ‘real need’ test is not a variation of the ‘MEO’ test and that, in its Notice on the notion of State aid, it is stated, in the section relating to the second of those tests, that ‘there can be exceptional circumstances in which the purchase of goods or services by a public authority, even if carried out at market prices, may not be considered in line with market conditions’, an approach which has been confirmed by the Court.

138    In addition, the Commission contends that the contested decision is neither inconsistent nor unclear. In recital 180 of that decision, it is specified that the purchase of the marketing services was not able to meet a ‘real need’, but was intended to subsidise Ryanair flights from and to Montpellier airport. Subsequently, it is mentioned that, even if the ‘MEO’ test were applicable, it would not be satisfied in so far as the price of the marketing services was not in line with the market price. According to the Commission, the second limb of the analysis does not contradict the first, but simply complements it by examining, alternatively, the arguments raised by the applicants and those raised by other concerned parties during the formal investigation procedure.

139    In that regard, first, it should be recalled that, as is apparent from paragraph 69 above, measures which, whatever their form, are likely directly or indirectly to favour certain undertakings or which are to be regarded as an economic advantage which the undertaking who is the beneficiary thereof would not have obtained under normal market conditions are regarded as State aid.

140    Furthermore, as is apparent from paragraph 71 above, the assessment of the conditions under which such an advantage was conferred is carried out, as a rule, by applying the ‘MEO’ test.

141    The starting point for determining whether that test is to be applied must be the economic nature of the Member State’s action, not how that Member State, subjectively speaking, thought it was acting or which alternative courses of action it considered before adopting the measure in question (judgment of 20 September 2017, Commission v Frucona Košice, C‑300/16 P, EU:C:2017:706, paragraph 27).

142    Article 107(1) TFEU does not distinguish between the causes or the objectives of State measures (judgments of 2 July 1974, Italy v Commission, 173/73, EU:C:1974:71, paragraph 27, and of 13 February 2003, Spain v Commission, C‑409/00, EU:C:2003:92, paragraph 46). The nature of the objectives pursued by State measures and their grounds of justification have no bearing whatsoever on whether such measures are to be classified as State aid (judgments of 8 December 2011, France Télécom v Commission, C‑81/10 P, EU:C:2011:811, paragraph 17, and of 25 January 2022, Commission v European Food and Others, C‑638/19 P, EU:C:2022:50, paragraph 122).

143    Where the ‘MEO’ test is applicable, it is necessary to examine whether the same measure would have been adopted under normal market conditions by a private operator in a situation as close as possible to that of the State. The test to be employed in practice in a given case must be determined on the basis of, inter alia, the nature of the transaction envisaged by the Member State concerned (see, to that effect, judgment of 6 March 2018, Commission v FIH Holding and FIH Erhvervsbank, C‑579/16 P, EU:C:2018:159, paragraphs 52 and 55).

144    In that context, it is for the Commission to carry out an overall assessment, taking into account all relevant evidence in the case enabling it to determine whether the undertaking who is the beneficiary would manifestly not have been able to obtain similar conditions from a private operator (see, to that effect, judgment of 11 December 2018, BTB Holding Investments and Duferco Participations Holding v Commission, T‑100/17, not published, EU:T:2018:900, paragraph 264 and the case-law cited).

145    For the purposes of that assessment, only the benefits and obligations linked to the situation of the Member State as a private operator, to the exclusion of those linked to its status as a public authority, are to be taken into account (see judgment of 6 March 2018, Commission v FIH Holding and FIH Erhvervsbank, C‑579/16 P, EU:C:2018:159, paragraph 55 and the case-law cited).

146    Secondly, it should be pointed out that a State measure in favour of an undertaking cannot be excluded in principle from the concept of ‘State aid’, within the meaning of Article 107 TFEU, merely because the parties undertake reciprocal commitments (see, to that effect, judgment of 28 January 1999, BAI v Commission, T‑14/96, EU:T:1999:12, paragraph 71).

147    The mere fact that a State purchases goods and services which were allegedly offered on market conditions is not sufficient for that transaction to constitute a normal commercial transaction concluded under conditions which a private operator would have accepted. In certain circumstances, it is necessary to establish objectively that the State had a real need to purchase those goods and services (see, to that effect, judgment of 28 January 1999, BAI v Commission, T‑14/96, EU:T:1999:12, paragraphs 74 to 79).

148    The Commission clarified its interpretation of ‘real need’ in its Notice on the notion of State aid. It is stated, inter alia, in paragraph 82 of that notice, included in Section 4.2, entitled ‘The market economy operator (MEO) test’, that, in order to assess whether certain transactions are in line with market conditions, all the relevant circumstances of the case should be considered. For instance, there can be exceptional circumstances in which the purchase of goods or services by a public authority, even if carried out at market prices, may not be considered in line with market conditions.

149    Although that notice is not capable of binding the Court, it may nevertheless serve as a useful source of guidance (see, to that effect and by analogy, judgment of 26 July 2017, Czech Republic v Commission, C‑696/15 P, EU:C:2017:595, paragraph 53).

150    In the present case, in Section 7.1.3.3 of the contested decision, entitled ‘Applicability of the market economy operator principle’, first, the Commission noted, in essence, that, in concluding the agreements at issue, the APFTE was pursuing a regional policy objective, was acting only as a public authority and could not have expected any financial gain as a market economy operator aside from the development of tourism in the region. It added that the purchase of marketing services by the APFTE did not meet a real need, but was in fact intended to subsidise Ryanair flights from and to Montpellier airport. Accordingly, it considered that the ‘MEO’ test was not applicable. Secondly, the Commission explained that, even if that test were applicable, the prices paid for the purchase of the marketing services were not in line with the market price, with the result that that test would not be satisfied.

151    It must therefore be held that the Commission considered that the MEO test was inapplicable in the present case for two reasons relating, in essence, to the fact that the APFTE was acting as a public authority and to the fact that the purchase of marketing services from the applicants by the APFTE did not meet a real need.

152    As is claimed, in essence, by the applicants, none of the grounds relied on by the Commission was such as to rule out the applicability of the market economy operator principle.

153    First, as regards the first ground, namely that relating to the fact that the APFTE was acting as a public authority, it should be observed that, as is apparent, in essence, from paragraphs 142 and 145 above, although the application of the ‘MEO’ test must be examined without reference to public policy objectives, the pursuit of such objectives does not preclude the applicability of that test.

154    Secondly, as regards the second ground, namely that relating to the purchase of marketing services from the applicants by the APFTE which did not meet a real need, it should be noted that, as is apparent, in essence, from paragraphs 146 to 149 above, examining the real need of the State to purchase goods and services by definition involves assessing whether a private operator in a situation as close as possible to that of the State would have adopted the same conduct under normal market conditions. Such an assessment falls, as is apparent from paragraph 143 above, within the scope of the ‘MEO’ test. Consequently, that ground, relied on by the Commission, also does not permit a finding that the ‘MEO’ test cannot be applied.

155    Therefore, it must be held that the Commission, in concluding that the ‘MEO’ test was not applicable in the present case, erred in law.

156    However, in the first part of Section 7.1.3.4 of the contested decision, entitled ‘Determination of the advantage conferred on Ryanair/AMS by the APFTE’, the Commission specifically examined whether the purchase of marketing services from the applicants met a real need of the APFTE.

157    Contrary to the applicants’ assertions, that analysis by the Commission is not such as to vitiate the contested decision with a contradiction liable to affect its validity. In that regard, it should be borne in mind that a contradiction in the statement of the reasons on which a decision is based constitutes a breach of the obligation to state reasons such as to affect the validity of the measure in question if it is established that, as a result of that contradiction, the addressee of the measure is not in a position to ascertain, wholly or in part, the real reasons for the decision and, as a result, the operative part of the decision is, wholly or in part, devoid of any legal justification (judgments of 24 January 1995, Tremblay and Others v Commission, T‑5/93, EU:T:1995:12, paragraph 42, and of 30 March 2000, Kish Glass v Commission, T‑65/96, EU:T:2000:93, paragraph 85).

158    In the present case, it is clear from recitals 182 to 305 of the contested decision that the Commission established the existence of an economic advantage on the ground that there was no real need for the APFTE to conclude the agreements at issue. The applicants were in a position to ascertain the real reasons for the contested decision and to challenge the merits of the Commission’s assessment in that regard, which, moreover, they did in paragraphs 141 to 239 of the application and in paragraphs 58 to 84 of the reply. Accordingly, the contested decision will have to be annulled only if it transpires that those grounds are incapable of providing a basis for its operative part, which will be examined in the context of the fourth plea.

159    In so far as the applicants rely on a contradiction in the contested decision as regards the question whether the price paid under the agreements at issue was in line with the market price, it suffices to state that the Commission noted, in recitals 184, 306 and 307 of the contested decision, that the fact that there was no real need for the APFTE to conclude the agreements at issue was sufficient to establish the existence of an economic advantage and that it examined whether the price paid by the APFTE was in line with the market price in the alternative, since Ryanair had raised that argument in the comments it had made during the formal investigation procedure.

160    Therefore, subject to the analysis which will be carried out in connection with the first three parts of the fourth plea, the fourth part of the second plea must be rejected as unfounded, as must the second plea in law in its entirety.

3.      The third plea in law, alleging infringement of Article 107(1) TFEU inasmuch as the Commission misapplied the ‘real need’ test

161    This plea is divided into three parts, alleging (i) that the legal basis for the ‘real need’ test is ‘weak’, (ii) that the ‘real need’ test is irrelevant for the assessment of the present case, and (iii) that the Commission, in essence, incorrectly refused to apply the incremental profitability method.

(a)    The first part, alleging that the legal basis for the ‘real need’ test is ‘weak’

162    The applicants argue that the Commission Notice on the notion of State aid provides that the purchase of goods and services by a public authority meets a real need only in exceptional circumstances. They add that there is only one precedent in which the Courts of the European Union have held that, in such a situation, a transaction could give rise to State aid, namely the judgments of 28 January 1999, BAI v Commission (T‑14/96, EU:T:1999:12), and of 5 August 2003, P&O European Ferries (Vizcaya) and Diputación Foral de Vizcaya v Commission (T‑116/01 and T‑118/01, EU:T:2003:217). According to the applicants, the Court of Justice held, in the judgment of 1 June 2006, P&O European Ferries (Vizcaya) and Diputación Foral de Vizcaya v Commission (C‑442/03 P and C‑471/03 P, EU:C:2006:356), that, in the judgment of 5 August 2003, P&O European Ferries (Vizcaya) and Diputación Foral de Vizcaya v Commission (T‑116/01 and T‑118/01, EU:T:2003:217), the General Court had failed to have regard to the force of res judicata attaching to the judgment of 28 January 1999, BAI v Commission (T‑14/96, EU:T:1999:12). They also claim that the purchases at issue in the cases giving rise to those judgments were intended to achieve public policy objectives of the State acting as a public authority, with the result that the ‘real need’ test was not applied in the context of the ‘MEO’ test. Moreover, they argue that even in cases where the State acts as a public authority, the ‘real need’ test has become obsolete and appears to have been replaced by the Altmark conditions. They explain that the judgment of 1 March 2017, SNCM v Commission (T‑454/13, EU:T:2017:134), mentioned in the contested decision, concerned a service of general economic interest and that the ‘real need’ test had never been applied in a case unrelated to such a service.

163    The Commission disputes those arguments.

164    In that regard, it should be borne in mind that, when the Commission reviews whether a specific transaction contains State aid elements, it is required to take into account the context in which that transaction takes place (see, to that effect, judgment of 27 February 2013, Nitrogénművek Vegyipari v Commission, T‑387/11, not published, EU:T:2013:98, paragraph 126). The examination of a transaction outside its context could lead to purely formal results which do not correspond to economic reality (judgment of 8 January 2015, Club Hotel Loutraki and Others v Commission, T‑58/13, not published, EU:T:2015:1, paragraph 91).

165    In the present case, as is apparent from paragraph 197 below, the Commission found that the purchase of marketing services did not meet a real need of the APFTE, but was in fact intended to subsidise Ryanair flights from and to Montpellier airport, on the basis of a range of indicators.

166    It follows that the Commission took into account, in accordance with the case-law cited in paragraph 164 above, the context in which the agreements at issue were concluded in order to find that they conferred an economic advantage on the applicants.

167    As regards the applicants’ criticism concerning the legal basis of the ‘real need’ test, it should be borne in mind that the lawfulness of a Commission decision finding that there was State aid within the meaning of Article 107(1) TFEU must be assessed primarily in the light of the objective rules of the FEU Treaty (see, to that effect, judgment of 16 July 2014, Germany v Commission, T‑295/12, not published, EU:T:2014:675, paragraph 181 and the case-law cited).

168    Furthermore, as is apparent from paragraphs 146 to 148 above, the ‘real need’ test is apparent from the case-law and is also mentioned in the Commission Notice on the notion of State aid.

169    Therefore, the Commission cannot be criticised for having taken into account the ‘real need’ test for the purpose of examining whether there was an economic advantage.

170    The applicants’ other arguments cannot call that conclusion into question.

171    First, the applicants’ argument that there is only one precedent in which the Courts of the European Union have held that, in such a situation, a transaction could give rise to State aid, namely the judgments of 28 January 1999, BAI v Commission (T‑14/96, EU:T:1999:12), and of 5 August 2003, P&O European Ferries (Vizcaya) and Diputación Foral de Vizcaya v Commission (T‑116/01 and T‑118/01, EU:T:2003:217), cannot prove that the contested decision contained an error of law. The legal basis of a given decision cannot be called into question by means of a claim that the test chosen to evaluate the measures at issue is rarely applied.

172    Secondly, the applicants’ argument that the Court of Justice held, in the judgment of 1 June 2006, P&O European Ferries (Vizcaya) and Diputación Foral de Vizcaya v Commission (C‑442/03 P and C‑471/03 P, EU:C:2006:356), that, in the judgment of 5 August 2003, P&O European Ferries (Vizcaya) and Diputación Foral de Vizcaya v Commission (T‑116/01 and T‑118/01, EU:T:2003:217), the General Court had failed to have regard to the force of res judicata attaching to the judgment of 28 January 1999, BAI v Commission (T‑14/96, EU:T:1999:12), cannot succeed either. In that regard, it is sufficient to note that, in recital 183 of the contested decision, the Commission referred to recital 82 of the Notice on the notion of State aid, which refers to the judgment of 28 January 1999, BAI v Commission (T‑14/96, EU:T:1999:12).

173    Thirdly, in so far as the applicants submit that, in the case which gave rise to the judgments of 28 January 1999, BAI v Commission (T‑14/96, EU:T:1999:12), and of 5 August 2003, P&O European Ferries (Vizcaya) and Diputación Foral de Vizcaya v Commission (T‑116/01 and T‑118/01, EU:T:2003:217), the purchases at issue were intended to achieve public policy objectives of the State acting as a public authority, with the result that the ‘real need’ test was not applied in the context of the ‘MEO’ test, it must be held that, contrary to the view taken by the applicants, it is not apparent from those judgments that the purchases in question were intended to achieve public policy objectives of the State acting as a public authority. In that regard, it is sufficient to note that, in paragraph 81 of the judgment of 28 January 1999, BAI v Commission (T‑14/96, EU:T:1999:12), the Court specifically recalled that the cultural and social objectives which may be pursued by the authorities concerned play no role in the classification of State aid.

174    Fourthly, contrary to the applicants’ assertions, the ‘real need’ test has not been replaced by the Altmark conditions. As is apparent from paragraph 103 above, the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415), applies where there is a public service obligation.

175    Fifthly, as regards the applicants’ argument that the judgment of 1 March 2017, SNCM v Commission (T‑454/13, EU:T:2017:134), cited in the contested decision, concerned a service of general economic interest and the ‘real need’ test had never been applied in a case unrelated to such a service, it is sufficient to note that the judgment of 28 January 1999, BAI v Commission (T‑14/96, EU:T:1999:12), to which recital 183 of the contested decision indirectly refers, did not concern such a service.

176    The first part of the present plea in law must therefore be rejected as unfounded.

(b)    The second part, alleging, in essence, that the ‘real need’ test is irrelevant for the assessment of the present case

177    The applicants claim that the ‘real need’ test must be applied in exceptional circumstances. They claim that (i) a bid which is in line with a market price precludes, as a matter of principle, the existence of aid; (ii) the principle of subsidiarity laid down in Article 5 TEU precludes the EU authorities from determining the real needs of a national authority; and (iii) it would be unreasonable to challenge purchase transactions by public authorities on the basis of the ‘real need’ test. They add that, in so far as that test is particularly strict, it has rarely been applied in the Commission’s decision-making practice. Furthermore, the circumstances of the present case are different to those which gave rise to the judgments of 28 January 1999, BAI v Commission (T‑14/96, EU:T:1999:12), and of 5 August 2003, P&O European Ferries (Vizcaya) and Diputación Foral de Vizcaya v Commission (T‑116/01 and T‑118/01, EU:T:2003:217).

178    The Commission disputes the applicants’ arguments.

179    In the first place, it should be noted that the applicants have made general observations regarding the ‘real need’ test, claiming that it should be applied in exceptional circumstances. In that regard, it should be borne in mind that the review undertaken by the Court of the complex economic assessments made by the Commission is necessarily limited and confined to verifying whether the rules on procedure and on the statement of reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of assessment or misuse of powers (see judgment of 12 October 2016, Land Hessen v Pollmeier Massivholz, C‑242/15 P, not published, EU:C:2016:765, paragraph 28 and the case-law cited).

180    In addition, it is not for the Court to substitute its assessment for that of the Commission, or to rule on pleas, complaints or arguments which, even if they were well founded, would not lead to the annulment of the contested decision (see, to that effect and by analogy, judgment of 28 February 2002, Compagnie générale maritime and Others v Commission, T‑86/95, EU:T:2002:50, paragraph 339).

181    In the present case, in so far as the applicants merely claim that the ‘real need’ test must be applied in exceptional circumstances, without explaining to what extent the circumstances of the present case could not be regarded as exceptional circumstances justifying the application of that test, their argument cannot succeed.

182    In the second place, in so far as the applicants maintain that the ‘real need’ test has rarely been applied in the Commission’s decision-making practice, it should be borne in mind that, according to settled case-law, the beneficiary of unlawful aid cannot validly rely on the Commission’s previous decision-making practice, since that practice cannot affect the validity of a subsequent decision, which can be assessed only in the light of the objective rules of the Treaty (see, to that effect, judgments of 20 May 2010, Todaro Nunziatina & C., C‑138/09, EU:C:2010:291, paragraph 21, and of 15 June 2005, Regione autonoma della Sardegna v Commission, T‑171/02, EU:T:2005:219, paragraph 177).

183    In the third place, the applicants claim that the circumstances of the present case are different from those which gave rise to the judgments of 28 January 1999, BAI v Commission (T‑14/96, EU:T:1999:12), and of 5 August 2003, P&O European Ferries (Vizcaya) and Diputación Foral de Vizcaya v Commission (T‑116/01 and T‑118/01, EU:T:2003:217), in so far as, unlike in the present case, in the case which gave rise to those judgments, (i) there had been no tendering procedure; (ii) the purpose of the purchase made by the authority granting the aid had been to increase the amount of the payments and the number of travel vouchers purchased; (iii) only some of the travel vouchers had been used; and (iv) the purchase of travel vouchers was not a common practice.

184    In that regard, it is sufficient to note that, as is apparent from recital 183 of the contested decision, the Commission referred to the judgment of 28 January 1999, BAI v Commission (T‑14/96, EU:T:1999:12), in so far as, in that judgment, the ‘real need’ test was applied in order to determine whether there was an economic advantage. Accordingly, it is of no relevance to the lawfulness of the contested decision that the facts of that judgment differ from those at issue in the present case.

185    The second part of the present plea in law must therefore be rejected as unfounded.

(c)    The third part, alleging that the Commission, in essence, incorrectly refused to apply the incremental profitability method

186    The applicants complain that the Commission rejected the application of the incremental profitability method on the ground that the APFTE could not be considered a manager of AMM, since its members had only a 40% shareholding in AMM. According to the applicants, such an approach is discriminatory and undermines legal certainty. They also argue that, unlike the incremental profitability method, the ‘real need’ test is incorrect and disproportionate, because it fails to take account of the costs incurred by AMS to provide the advertising activities.

187    The Commission disputes those arguments.

188    In the present case, it should be noted that, as is apparent from paragraphs 108 to 110 above, contrary to the applicants’ assertions, the public members of the APFTE’s 40% shareholding in AMM, taken into consideration in the context of the analysis of the APFTE’s potential financial gain, was only one factor among others taken into account by the Commission. In that context, the Court cannot accept the applicants’ argument that the approach adopted by the Commission, which is allegedly based on the fact that the application of the incremental profitability method was rejected on the ground that the public members of the APFTE held only a 40% shareholding in AMM, is discriminatory and undermines legal certainty.

189    In addition, in so far as the applicants claim that, unlike the incremental profitability method, the ‘real need’ test is incorrect and disproportionate in so far as it fails to take account of the costs incurred by AMS to provide the advertising activities, it should be noted, as the Commission did, that, as is apparent from recital 180 of the contested decision, in the present case, the Commission found that the purpose of the APFTE’s purchase of marketing services was in fact to subsidise Ryanair flights from and to Montpellier airport. Accordingly, it must be held that the payments made under the agreements at issue, which were used to disguise subsidies intended to maintain Ryanair’s presence at Montpellier airport, are the basis for the decision to require full recovery of the aid.

190    Accordingly, the third part of the third plea must be rejected as unfounded, as must the third plea in law in its entirety.

4.      The fourth plea in law, alleging that the Commission manifestly erred in its assessment, erred in law and infringed Article 107(1) TFEU, inasmuch as it incorrectly assessed the region’s and the airport’s need for marketing services

191    This plea is divided into four parts. In the first part, the applicants submit that the Commission incorrectly considered that the APFTE had purchased marketing services from the applicants in order to maintain Ryanair’s presence at Montpellier airport. In the second part, the applicants dispute the Commission’s findings that the marketing services which they offered were not capable of promoting the region. In the third part, the applicants claim that the Commission erred in finding that Ryanair benefited from the marketing services at issue. In the fourth part, the applicants submit that the Commission incorrectly concluded that the price paid by the APFTE was not in line with the market price.

192    As a preliminary point, it should be borne in mind that it is apparent from settled case-law that ‘State aid’, as defined in the FEU Treaty, is a legal concept which must be interpreted on the basis of objective factors. For that reason, the Courts of the European Union must in principle, having regard both to the specific features of the case before them 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 of 22 December 2008, British Aggregates v Commission, C‑487/06 P, EU:C:2008:757, paragraph 111 and the case-law cited).

193    However, when conducting such a review, the EU judicature must not substitute its own economic assessment for that of the Commission. The review undertaken by the Courts of the European Union of the complex economic assessments made by the Commission is necessarily limited and confined to verifying whether the rules on procedure and on the statement of reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of assessment or misuse of powers (see judgment of 12 October 2016, Land Hessen v Pollmeier Massivholz, C‑242/15 P, not published, EU:C:2016:765, paragraph 28 and the case-law cited).

194    In that regard, according to the case-law, in order to establish that the Commission committed a manifest error in assessing the facts such as to justify the annulment of the contested decision, the evidence adduced by the applicant must be sufficient to make the factual assessment used in the decision at issue implausible (see judgment of 10 March 2009, Aker Warnow Werft and Kvaerner v Commission, T‑68/05, EU:T:2009:61, paragraph 42 and the case-law cited).

195    Moreover, it must be noted that, where an EU institution has a wide discretion, the review of observance of certain procedural guarantees is of fundamental importance. Thus, the Court of Justice has had occasion to specify that those guarantees include the obligation for the competent institution to examine carefully and impartially all the relevant elements of the individual case and to give an adequate statement of the reasons for its decision (judgment of 3 July 2013, MB System v Commission, T‑209/11, not published, EU:T:2013:338, paragraph 40).

196    It is in the light of all those principles that the present plea should be considered.

197    In the present case, the Commission observed, in recitals 186 to 305 of the contested decision, that the purchase of marketing services from the applicants did not meet a real need of the APFTE, on the basis of the following factors:

–        the purchase of those services served only as justification for the payments to keep Ryanair at Montpellier airport, having regard to:

–        the lack of any real intention on the part of the APFTE to advertise the region;

–        the targeting of Ryanair flight operations, rather than marketing services;

–        the targeting of the applicants, rather than any online marketing service provider in general;

–        the lack of evidence of the APFTE’s interest in the practical success of the marketing campaigns funded by its budget;

–        the fact that the end of the marketing payments coincided with the cessation of flight operations by Ryanair;

–        the existence of other investigations showing that marketing agreements had been used by Ryanair to conceal the payment of State aid;

–        the marketing services provided by the applicants could not promote the City of Montpellier and its surrounding area effectively, and therefore:

–        the choice of Ryanair was not sufficiently justified in economic terms;

–        Ryanair’s marketing services did not have the alleged effect;

–        if the agreements at issue did have an effect, they benefited Ryanair more than anyone else.

198    It is in the light of those considerations that the Court must examine the first three parts of the present plea.

199    In the fourth part, the applicants seek to criticise the Commission’s assessments in the alternative concerning the question whether the price paid by the APFTE for the marketing services was in line with the market price.

(a)    The first part, alleging that the Commission incorrectly considered that the APFTE had purchased marketing services in order to maintain Ryanair’s presence at Montpellier airport

200    The present part is divided into five complaints, alleging: (i) that the Commission erred in finding that the APFTE did not intend to promote the region; (ii) that the Commission erred in finding that the APFTE focused on Ryanair’s routes rather than on marketing services; (iii) that the Commission erred in finding that the APFTE was targeting the applicants instead of traditional marketing services providers; (iv) that the Commission erred in finding that the APFTE was not interested in the success of the marketing campaigns; and (v) that the Commission erred in finding that the marketing payments coincided with the duration of Ryanair’s flight operations.

(1)    The first complaint, alleging that the Commission erred in finding that the APFTE did not intend to promote the region

201    The applicants maintain that the Commission’s assessment that the APFTE did not intend to promote the region is based on circumstances surrounding the creation of the APFTE, the initial state of its website and the legal entity that succeeded it, but fails to take into account the factors relating to its functioning during operation. They add that, after March 2011, several of the public members of the APFTE made their participation in the APFTE’s budget conditional on there being a proper strategy for the tourist and economic development of their area. Furthermore, the improvement of the APFTE’s website is evidence of an intention to carry out marketing efficiently. In any event, they claim that the Commission’s argument that the APFTE was pursuing the objective of maintaining Ryanair’s presence at Montpellier airport and of subsidising the marketing of its routes to and from that airport does not mean that the APFTE did not also have a real need to purchase marketing services from the applicants in order to promote the region.

202    The Commission disputes those arguments.

203    In the present case, it should be recognised that the Commission noted, in recitals 192 to 201 of the contested decision, that the analysis of the resolutions, minutes and records of the APFTE and its public members showed that the real purpose of the APFTE was to continue supporting the airlines, particularly Ryanair, after the change of management. It stated that, according to the summary of the decisions of the APFTE’s finance committee, the APFTE’s website initially had no real marketing function, but formed part of the APFTE’s strategy to justify the payments made to the airlines. It added that the documents on the workings of the APFTE submitted by the French authorities for the years 2017 and 2018 showed that, when the APFTE stopped operating in 2018, the CCIM and the local authorities had designed, and indeed implemented, a new legal structure, which involved the purchase of marketing services being taken over by ‘a purchasing group, consisting of the local authorities and the [CCIM], which [picked up] the baton by no longer purchasing marketing services but rather flight routes’.

204    The applicants’ arguments cannot render the Commission’s assessment implausible.

205    First, contrary to the applicants’ assertions, the Commission took account, in particular in recital 198 of the contested decision, of the functioning of the APFTE during operation when it considered that the documents on the workings of the APFTE submitted by the French authorities for the years 2017 and 2018 showed that the CCIM and the local authorities had designed, and indeed implemented, a new legal structure. In addition, it also took into account, in recital 202 of that decision, which refers to footnote 121 thereto, the minutes of the APFTE’s general meeting of 19 October 2011 and a record of the APFTE’s executive committee meeting of 4 July 2013, in order to find, in essence, that the APFTE had decided to conclude the agreements at issue in order to maintain Ryanair’s presence at Montpellier airport.

206    Secondly, in so far as the applicants claim that, after March 2011, several of the public members of the APFTE made their participation in the APFTE’s budget conditional on there being a proper strategy for the tourist and economic development of their area, it should be noted that, as is apparent from recitals 230 to 237 of the contested decision, the APFTE, and therefore its public members, did not assess the potential impact of its budget. This is not disputed by the applicants. Thus, if the public members of the APFTE had in fact made their participation in the APFTE’s budget conditional on there being a proper strategy, they would have assessed the impact of that budget on the tourist and economic development of their area.

207    Thirdly, the applicants argue that the improvement of the APFTE’s website is evidence of an intention to carry out marketing efficiently. In that regard, it should be noted that, although, as the applicants maintain, it is apparent from recital 197 of the contested decision that the President of the APFTE suggested that the APFTE’s website be improved, the applicants fail to mention that, in accordance with that recital, he also specified that that website was ‘needed in order to justify the communication expenditure incurred in order to bring significant numbers of European customers to the greater Montpellier area’.

208    Fourthly, regarding the applicants’ argument that the fact that the APFTE was pursuing the objective of maintaining Ryanair’s presence at Montpellier airport and of subsidising the marketing of its routes to and from that airport does not mean that the APFTE did not also have a real need to purchase marketing services from the applicants in order to promote the region, that argument is not capable of demonstrating that the Commission committed a manifest error of assessment in finding that, in the present case, the APFTE’s real need had not been objectively established.

209    Accordingly, the first complaint must be rejected as unfounded.

(2)    The second complaint, alleging that the Commission erred in finding that the APFTE focused on Ryanair’s routes rather than on marketing services

210    The applicants claim that the allegation that the agreements at issue targeted Ryanair, or regions where Ryanair was present, does not demonstrate that the APFTE did not have a real need. They add that, although the Commission argues that the agreements at issue did not target broader regions, first, it fails to demonstrate that broader marketing would have been more efficient and, secondly, that fact does not mean that there was not a real need to promote Montpellier and its surroundings in the regions that were targeted by the agreements at issue. In addition, the applicants assert that the reference to routes or regions connected by routes is justified by the fact that it is necessary that a route operates for the region or the airport to be able to influence the proportion of inbound passengers through marketing. The Commission failed to take that fact into account in the contested decision. In addition, the applicants maintain that the marketing services are described in each of the agreements at issue. Moreover, the marketing content published on Ryanair’s website shows that the subject matter is not Ryanair’s offer of routes, or the frequencies and low prices of those routes, but the Montpellier region and its tourism and business opportunities. According to the applicants, the Commission simply asserted that the APFTE had focused on Ryanair’s routes instead of providing marketing for the region, but did not provide any analysis of the content of the marketing services to support its assertion, with the result that the Commission’s assessment of the facts is manifestly incorrect.

211    The Commission disputes the applicants’ arguments.

212    In recitals 202 to 212 of the contested decision, the Commission explained that the APFTE had decided to conclude the agreements at issue in order to maintain Ryanair’s presence at Montpellier airport. According to the Commission, an analysis of the agreements at issue and of the 2013 and 2017 calls for tenders supports the conclusion that they specifically targeted the air routes operated by Ryanair. The 2010 agreement and the 2013 agreements, as well as the successive amendments thereto and renewals thereof, are based on specific commitments by Ryanair to operate air routes to Montpellier airport and impose clear obligations in that regard. Although the 2017 agreements do not mention the airports served by Ryanair from Montpellier airport and do not contain any explicit obligation with regard to air transport to that airport, they clearly identify as a target the inhabitants of the regions where the airports served by Ryanair from Montpellier airport are located. In the general context of the contractual relations between the APFTE and Ryanair from 2010 onwards, it is clear that the 2017 agreements had the objective and intended effect of supporting the existing air transport activities of Ryanair at Montpellier airport. The Commission considered that the inclusion in the agreements at issue of obligations to operate flights was important evidence of the real object of those agreements, namely the remuneration of Ryanair for continuing to operate at Montpellier airport.

213    In the present case, it should be noted, first of all, that the 2010 agreement expressly refers to Ryanair’s commitments to operate the air routes to Montpellier airport. Next, it should be noted that the specifications of the 2013 call for tenders contain very specific air transport requirements, in respect of five lots in particular, such as annual routes, the number of flights per week and per year, the minimum annual volume of incoming units, the minimum annual offer of seats and the start date. However, as regards the marketing obligations, they merely state that each tenderer must offer ‘to promote tourist and economic flows to Montpellier through all available media on the market’ and must ‘provide a link to the APFTE’s website’. The same is true of the 2013 agreements, which remunerate the provision of marketing services per lot. Lastly, although the 2017 agreements do not specifically mention the airports served from Montpellier airport and do not contain any explicit obligation with regard to air transport to that airport, they identify as a target of the marketing activities, in particular, the inhabitants of the regions where the airports served by Ryanair from Montpellier airport are located, namely Wallonia (Brussels-Charleroi airport), Rhineland-Palatinate (Frankfurt-Hahn airport), and Yorkshire (Leeds-Bradford airport).

214    In that context, it should be noted that the Commission did not make a manifest error of assessment in finding that the agreements at issue targeted Ryanair flight operations.

215    The applicants’ other arguments cannot call that conclusion into question.

216    First, regarding the applicants’ argument that the fact that the marketing agreements targeted Ryanair, or regions where Ryanair was present, does not demonstrate that there was not a real need, it is sufficient to note that, as is apparent from recital 188 of the contested decision, the Commission’s finding that the APFTE had no real need to purchase marketing services from the applicants is based on a range of indicators. The fact that the marketing agreements targeted Ryanair flight operations rather than marketing services is only one factor among others taken into account by the Commission. Accordingly, the question whether the Commission has sufficiently proved that there was no real need for the APFTE to purchase the marketing services from the applicants cannot be assessed solely by taking into consideration each of those indicators in isolation, but must be decided by considering all of them together.

217    Secondly, the applicants’ argument that the Commission fails to demonstrate that broader marketing would have been more efficient is not capable of revealing that the Commission committed a manifest error of assessment in finding that the agreements at issue targeted Ryanair routes. In recital 209 of the contested decision, the Commission indicated that it had not identified any particular reason for the APFTE to choose Rhineland-Palatinate, Wallonia and Yorkshire as the target of marketing services, other than the fact that they were the only three regions served by Ryanair from Montpellier airport. That assessment cannot be vitiated by a manifest error of assessment on account of a failure to demonstrate the potential effectiveness of geographically broader marketing.

218    Thirdly, in so far as the applicants assert that the reference to routes or regions connected by routes is justified by the fact that it is necessary that a route operates for the region or the airport to be able to influence the proportion of inbound passengers through marketing, it is sufficient to note that, as is apparent from recital 209 of the contested decision, as regards, in particular, the 2017 call for tenders, regions other than Rhineland-Palatinate, Wallonia and Yorkshire were connected by direct flights operated by other airlines, but those regions were nevertheless not targeted by that call for tenders. This is not disputed by the applicants.

219    Fourthly, contrary to the applicants’ assertions, the Commission analysed the level of detail of the marketing services to be provided, in particular in the context of examining the 2013 and 2017 calls for tenders. In particular, in recital 207 of the contested decision, the Commission stated that the specifications of the 2013 call for tenders were ‘very general, not to say vague’ on the nature of the marketing services to be provided.

220    Fifthly, the applicants claim that the content published on Ryanair’s website shows that the subject matter is not Ryanair’s offer of routes, or the frequencies and low prices of those routes, but the Montpellier region and its tourism and business opportunities. That argument is not such as to call into question the Commission’s assessment that the APFTE had decided to conclude the agreements at issue with the applicants.

221    Sixthly, according to the applicants, the Commission simply asserted that the APFTE had focused on Ryanair’s routes instead of providing marketing for the region, but did not provide any analysis of the content of the marketing services to support its assertion, with the result that the Commission’s assessment of the facts is manifestly incorrect. In that regard, it is sufficient to note that the assessments set out in recitals 202 to 212 of the contested decision are intended to demonstrate that the agreements at issue and the 2013 and 2017 calls for tenders targeted Ryanair’s air routes rather than marketing services, with the result that the evidence derived from the content of the marketing services is not capable of invalidating the Commission’s analysis in that regard.

222    Accordingly, the second complaint must be rejected as unfounded.

(3)    The third complaint, alleging, in essence, that the Commission erred in finding that the APFTE was targeting the applicants instead of traditional marketing services providers

223    The applicants claim that the choice to make use of the marketing services of an airline is justified by the fact that customers living in regions served by an airline and using its website are precisely the persons most likely to decide to travel to the targeted region in the first place. They add that they have provided ample quantitative data to prove that Ryanair’s website was the most popular travel and airline website in the world, as well as a qualitative analysis demonstrating that advertising by an airport on Ryanair’s website targets uniquely potential passengers to or from that airport. Furthermore, it is logical to increase the region’s exposure by promoting that region on Ryanair’s website, even if not all the persons who view that website fly with Ryanair. Accordingly, Ryanair’s website is uniquely tailored to the marketing needs of regional airports.

224    The Commission disputes the applicants’ arguments.

225    In recitals 213 to 229 of the contested decision, the Commission explained, in essence, that an analysis of the agreements at issue and the 2013 and 2017 calls for tenders showed that the decisive criteria defined by the APFTE and selected in the calls for tenders favoured AMS over conventional marketing service providers, in particular by introducing the criterion of serving flight routes and needing to offer a website specific to the marketing service provider with enough traffic to offer online advertising on that site.

226    In the present case, it should be noted that, as is apparent from recitals 63 to 73 of the contested decision, the specifications for the 2013 call for tenders provided for five different lots, including the lots entitled ‘Brussels-Charleroi’, ‘Frankfurt-Hahn’, ‘Leeds’ and ‘Birmingham’, and indicated minimum frequencies therein. This is not disputed by the applicants. Those lots corresponded precisely to the air transport services operated by Ryanair between Montpellier airport, on the one hand, and Brussels-Charleroi airport, Frankfurt-Hahn airport, Leeds-Bradford airport and Birmingham airport, on the other, at the time when the call for tenders was launched. In addition, it is clear from that call for tenders that the only marketing service that imperatively had to be provided was the provision, by the marketing service provider, of a link to the APFTE’s website on its own website. The applicants do not dispute that that model precisely corresponds to the commercial model used by AMS, which offers advertising space on Ryanair’s website. Furthermore, as regards the 2017 agreements, it should also be noted that Ryanair was the only airline to serve the three regions covered by the first three lots of the 2017 call for tenders.

227    Therefore, it must be held that the Commission was entitled to conclude, without committing a manifest error of assessment, that the APFTE was targeting the applicants instead of traditional marketing service providers.

228    Contrary to the applicants’ assertions, the Commission did not state, in recital 229 of the contested decision, that Ryanair had not provided qualitative or quantitative data to justify the superiority of its marketing, but found that there was ‘[a lack of] quantitative or qualitative evidence justifying the choice of Ryanair routes as the most appropriate marketing tool by comparison not only with other forms of advertising but also with other flight routes to Montpellier airport’.

229    As regards, first, the quantitative data, and in particular the number of potential tourists targeted by the marketing campaign conducted by the applicants, it should be noted that the Commission demonstrated, in the contested decision, that those visitor numbers contributed only very little to the development of the Montpellier region. As is apparent from recitals 18 and 19 of the contested decision, which refer to Table 2 of that decision, since 2010, the total number of Ryanair passengers to and from Montpellier airport accounted for only a relatively small proportion of the passenger traffic at that airport and the number of Ryanair passengers had decreased continuously from 2012 onwards.

230    As regards, secondly, the applicants’ argument relating to the qualitative analysis demonstrating that advertising by an airport on Ryanair’s website targets uniquely potential passengers to or from that airport, it must be held that it does not demonstrate the qualitative value of the services offered under the agreements at issue.

231    Furthermore, in so far as the applicants maintain that services to the destination are justified by the fact that customers living in regions served by an airline and using its website are precisely the persons most likely to decide to travel to the targeted region in the first place, it should be noted that, even if it were established, that finding does not show that the agreements at issue represented the best choice for allocating a substantial part of the APFTE’s budget, as is apparent from recital 246 of the contested decision. This is not disputed by the applicants.

232    Accordingly, the third complaint must be rejected as unfounded.

(4)    The fourth complaint, alleging that the Commission erred in finding that the APFTE was not interested in the success of the marketing campaigns

233    The applicants maintain that the Commission’s assessment that the APFTE did not wish to measure the impact of the marketing campaigns is at odds with other findings set out in that decision, which establish that there was considerable pressure from the members of the APFTE to control marketing campaigns. Furthermore, it is apparent from the case-law that the existence of State aid should be assessed ex ante. The Commission’s failure to find evidence of reporting would thus at worst constitute ex post evidence of non-compliance with the internal conditions and procedures of the APFTE, but it would in no way affect the finding of the existence of State aid.

234    The Commission disputes the applicants’ arguments.

235    In the present case, the Commission stated, in recitals 230 to 237 of the contested decision, that it had found no evidence to show that the APFTE had assessed, either ex ante or ex post, the potential impact of its budget by evaluating different service providers, by evaluating the impact of various marketing services, by assessing the impact of marketing campaigns targeting different regions of northern Europe, or by analysing the costs and benefits of the marketing agreements concluded with the applicants.

236    The applicants’ arguments cannot render the Commission’s assessment implausible.

237    The payment of subsidies by the public members of the APFTE, which was subject to compliance with the obligation on the APFTE to implement the agreed marketing programmes and to submit reports in that regard, does not support the finding of a contradiction with the Commission’s assessment that the APFTE had no interest in the actual impact of the marketing campaigns carried out on its behalf by the applicants. The monitoring of the applicants’ implementation of the marketing obligations must not be confused with the verification of the actual impact of the marketing campaigns.

238    Nor, moreover, can the applicants claim, in essence, that the Commission erred in seeking evidence of the potential impact of the APFTE’s budget, since the existence of State aid must be assessed ex ante. In that regard, it is sufficient to note that the Commission stated, in recital 230 of the contested decision, that it had found no evidence to show that the APFTE had assessed, either ex ante or ex post, the potential impact of its budget.

239    Accordingly, the fourth complaint must be rejected as unfounded.

(5)    The fifth complaint, alleging that the Commission erred in finding that the marketing payments coincided with the duration of Ryanair’s flight operations

240    The applicants maintain that, contrary to the findings in the contested decision that the marketing payments coincided with the duration of Ryanair’s flight operations, the APFTE ceased payments to the applicants on account of the formal investigation procedure.

241    The Commission disputes that line of argument.

242    In the present case, it should be noted that the applicants do not dispute the findings in recitals 238 and 239 of the contested decision that the last payment to the applicants was made in February 2019 and Ryanair has not operated at Montpellier airport since the summer of 2019. In that context, the Commission cannot be criticised for having found that the end of the marketing payments coincided with the cessation of Ryanair’s operations at Montpellier airport.

243    Although the applicants claim that the APFTE ceased payments on account of the initiation of the formal investigation procedure, it is sufficient to note that, as is apparent from recital 84 of the contested decision, the Commission initiated the formal investigation procedure on 4 July 2018, whereas the last payment made by the APFTE to the applicants dates from February 2019. This is not disputed by the applicants.

244    Accordingly, that complaint must be rejected as unfounded, as must the first part in its entirety.

(b)    The second part, alleging that the Commission incorrectly considered that the services provided by the applicants were not capable of promoting the region effectively

245    The present part of the plea is divided into two complaints, alleging, first, that the Commission incorrectly found that the choice of the applicants as marketing services providers was not sufficiently justified in economic terms and, secondly, that the Commission erred in finding that the marketing campaigns did not have the effect alleged by Ryanair.

(1)    The first complaint, alleging that the Commission incorrectly found that the choice of the applicants as marketing services providers was not sufficiently justified in economic terms

246    The applicants claim that the focus on Ryanair’s website can be explained by the popularity of that website. In addition, part of the APFTE’s budget was assigned to the purchase of marketing services from other airlines, but the Commission did not investigate the possible grant of State aid to those airlines. They add that the Commission’s assessment that there are tourists other than Ryanair passengers generating more revenue for the region does not weaken the economic justification for focusing on Ryanair’s passengers, which would make it possible to rebalance the origin of visitors to the region and to strengthen less developed flows for the sake of diversifying sources of income. The applicants submit that advertising on the home page, which is the most costly, targets passengers who have not yet decided on their destination and that the split between the home page, for undecided passengers, and the destination page, for decided passengers, reflects the fact that a large proportion of passengers are undecided. They add that the choice to advertise only on certain language versions of Ryanair’s website is due to the APFTE’s limited budget. They explain that while Ryanair’s website did not advertise the services of Ryanair’s competitors in the field of aviation or rail transport, Ryanair cannot sell services that harm its own commercial interests.

247    The Commission disputes those arguments.

248    In the present case, it should be noted that the Commission identified, in recitals 248 to 271 of the contested decision, evidence supporting the assessment that the choice of the applicants as marketing services providers was not sufficiently justified in economic terms.

249    First, the Commission found that the marketing campaigns were limited to Ryanair’s website and customers. Secondly, it explained that Ryanair’s customers were not the most attractive market segment in terms of economic revenue for the region. The maximum potential number of tourists travelling with Ryanair was very low, Ryanair’s passengers did not have the greatest leverage effect in terms of spending in the region and, in terms of tourism and business travel, most of the customers of Montpellier and its surroundings are domestic and not international. Thirdly, the Commission stated that Ryanair’s marketing services had very little impact for the APFTE. The online marketing services provided by the applicants consisted essentially in inserting messages and links on the Montpellier destination page of Ryanair’s website, and inserting a link to the website designated by the APFTE on the English, German, Dutch and Belgian (French and Dutch) homepages of that same website. However, in the Commission’s view, the information provided about Montpellier was unlikely to attract new customers. Thus, Ryanair’s marketing value is targeted at Ryanair customers who have already chosen their destination airport or whose visit to Ryanair’s website indicates that they are likely to choose a specific destination airport. Fourthly, the Commission noted that the marketing services chosen by the APFTE from among Ryanair’s potential services had even less impact. Only the English, German, Dutch and Belgian (French and Dutch) homepages of Ryanair’s website were covered by the agreements at issue. Fifthly, the Commission found that the contribution made by AMS’s marketing services mainly attracted potential Ryanair customers without reaching other potential tourists, in terms of their origin, their choice of means of transport or their consumption behaviour.

250    In the light of the evidence identified, it must be held that the Commission has demonstrated to the requisite legal standard that the choice of the marketing services provided by the applicants was not sufficiently justified in economic terms.

251    None of the arguments put forward by the applicants is of such a kind as to disprove that conclusion.

252    First, the applicants allege that the focus on Ryanair’s website can be explained by the popularity of that website. However, the mere fact that the website is popular is not capable of calling into question the Commission’s assessment in recitals 268 to 271 of the contested decision that the marketing campaigns at issue are not such as to attract tourists who are not targeted by Ryanair’s flight operations.

253    Secondly, the applicants claim that the Commission’s assessment that there are tourists other than Ryanair passengers generating more revenue for the region does not weaken the economic justification for focusing on Ryanair’s passengers, which would make it possible to rebalance the origin of visitors to the region and to strengthen less developed flows for the sake of diversifying sources of income. However, that argument does not demonstrate that the Commission manifestly erred in its assessment. Even if it were established, it is sufficient to note that, as is apparent from recital 252 of the contested decision, the maximum potential number of tourists travelling with Ryanair is low. It never exceeded a percentage of, at most, 20% of passengers at Montpellier airport and steadily declined after 2012. This is not disputed by the applicants.

254    Thirdly, the applicants submit that advertising on the home page of Ryanair’s website, which is the most costly, targets passengers who have not yet decided on their destination and that the split between the home page, for undecided passengers, and the destination page, for decided passengers, reflects the fact that a large proportion of passengers are undecided. In that regard, it should be noted that, as the applicants acknowledge in paragraph 175 of the application, those undecided customers are primarily motivated by the ticket price, a factor which is determined by Ryanair. Moreover, as is apparent from recital 257 of the contested decision, the online marketing services provided by the applicants consisted essentially in inserting messages and links on the Montpellier destination page of Ryanair’s website, and inserting a link to the website designated by the APFTE on the English, German, Dutch and Belgian (French and Dutch) homepages of that same website. This is not disputed by the applicants. Accordingly, the Commission was fully entitled to conclude that, irrespective of the proportion of passengers who were undecided, the services at issue were targeted essentially at passengers who had already decided to use or were likely to consider using Ryanair’s transport services.

255    Fourthly, the applicants add that the choice to advertise only on certain language versions of Ryanair’s website is due to the APFTE’s limited budget. However, that argument cannot render implausible the Commission’s assessment in recital 261 of the contested decision that the marketing services were designed essentially to promote Ryanair’s services between Montpellier and the destinations that Ryanair undertook to serve.

256    Fifthly, the applicants explain that while Ryanair’s website did not advertise the services of Ryanair’s competitors in the field of aviation or rail transport, Ryanair cannot sell services that harm its own commercial interests. That argument supports the Commission’s conclusion that the APFTE’s choice of Ryanair was not sufficiently justified in economic terms. Since it was not economically attractive for Ryanair to focus its marketing campaigns on tourists not targeted by its flight operations, it was not rational for the APFTE to choose AMS as a marketing services provider.

257    Consequently, the first complaint must be rejected as unfounded.

(2)    The second complaint, alleging that the Commission erred in finding that the marketing campaigns did not have the effect alleged by Ryanair

258    The applicants dispute the Commission’s analysis that the marketing campaigns did not have the effect alleged by Ryanair of promoting the region. They argue that effectiveness should not be taken into account as a factor for the ‘real need’ test. They add that the Commission’s assessment that inbound traffic to Montpellier airport is explained by the favourable climate in that region is not sufficient to conclude that the applicants’ marketing campaigns had no effect. Furthermore, the Commission failed to take account of the objective of stimulating inbound traffic and improving the recognition of the Montpellier brand. Moreover, the Commission does not provide any analysis as regards the supposed technical inadequacy of the applicants’ services.

259    The Commission disputes the applicants’ arguments.

260    As a preliminary point, it should be noted that, in recital 277 of the contested decision, the Commission considered that the evidence which had led it to conclude (i) that the purpose of the agreements at issue was not to promote Montpellier as a destination but to keep Ryanair at Montpellier airport and (ii) that the APFTE’s choice of the applicants was not sufficiently justified in economic terms was sufficient to find that neither the APFTE and nor the public members of the APFTE had any real need as regards the applicants’ marketing services. However, the Commission explained that it was referring to the evidence uncovered by the formal investigation procedure as regards the specific effects of the agreements at issue in so far as Ryanair had commented on that issue.

261    In that context, the applicants cannot criticise the Commission for having reversed the burden of proof by establishing a presumption that their marketing services were ineffective or for having introduced a new efficiency test.

262    Next, it should be noted that the Commission specified, in recitals 279 to 290 of the contested decision, that the formal investigation procedure had found evidence that the actual advertising effect of the marketing campaigns was small. It added that (i) there was no quantitative evidence as regards the tangible contribution made by the marketing campaigns and (ii) the formal investigation procedure had revealed prima facie evidence that the marketing agreements concluded by the APFTE had no impact on the proportion of visiting tourists or on the development of the Montpellier brand.

263    The applicants have not put forward any evidence to show that the Commission’s conclusion is vitiated by a manifest error of assessment.

264    In so far as the applicants maintain that the Commission’s assertion, in recital 289 of the contested decision, that there is a natural inbound flow of traffic towards the Montpellier region due, in particular, to its climate, is not sufficient, it should be noted that the Commission’s reasoning in that recital is based on the fact that the tourist assets of the Montpellier region, which explain why the flow of passengers is by nature more towards Montpellier than from Montpellier to the other regions, existed before the agreements at issue. The reference to various other tourist destinations is not capable of calling that reasoning into question.

265    As regards the arguments relating to the advantages which the marketing services brought for Montpellier airport and the Montpellier region in terms, first, of improving the recognition of the Montpellier brand and, secondly, of stimulating inbound traffic, it should be noted that the Commission took them into account in recital 290 of the contested decision when it considered that the arguments put forward by Ryanair in that context related solely to the effects of Ryanair’s presence at a given airport, but were not, however, relevant as regards the tangible contribution made by the marketing campaigns to the region.

266    As regards the applicants’ argument that the Commission does not provide any analysis as regards the alleged technical inadequacy of their services, it is sufficient to note that, in recitals 282 and 286 of the contested decision, the Commission noted that neither Ryanair nor the French authorities had adduced any evidence capable of demonstrating quantitatively the alleged effect of the agreements at issue, such as statistics or performance indicators. The popularity of Ryanair’s website does not in itself enable the effect of the agreements at issue to be measured.

267    Therefore, the present complaint must be rejected, as must the second part in its entirety.

(c)    The third part, alleging that the Commission erred in finding that Ryanair benefited from the marketing services at issue

268    The applicants dispute the Commission’s conclusion that, if the marketing agreements did have an effect, it primarily benefited Ryanair. They maintain that the Commission distorted the facts by stating that, even in the absence of a marketing agreement, Ryanair would have an interest in carrying a high proportion of tourists wishing to visit the region and that stimulating inbound traffic is a goal which is specific to the region. They add that the content of the marketing campaigns focused on the region’s tourist attractions and business opportunities, so that Ryanair was not in a position to promote its transport services. Furthermore, the marketing services provided under the agreements at issue are different to marketing for flights. Moreover, there is a contradiction between the claim that the marketing services provide a benefit for Ryanair by increasing load factors, and the claim that the APFTE and Montpellier airport derive no benefit at all from those services.

269    The Commission disputes the applicants’ arguments.

270    In the present case, the Commission noted, in recitals 291 to 304 of the contested decision, that, even if the agreements at issue did have the effect of encouraging tourists to purchase flight tickets to Montpellier, that effect primarily benefited Ryanair. According to the Commission, a marketing campaign might increase the load factor of aircrafts and, moreover, might help to alter the balance between passengers visiting Montpellier, who are prepared to pay a high-season price, and passengers living in the Montpellier region.

271    None of the arguments put forward by the applicants is capable of undermining that approach taken by the Commission.

272    As regards the applicants’ argument that the Commission distorted the facts by stating that, even in the absence of a marketing agreement, Ryanair would have an interest in carrying a high proportion of tourists wishing to visit Montpellier and its surroundings and that stimulating inbound traffic is a goal which is specific to the region, it must be held that, in the absence of any figures as to the impact of marketing campaigns on the allocation of seats between inbound and outbound passengers, it cannot be held that the Commission distorted the facts. In addition, it should be noted that the applicants merely put forward an assessment which is contrary to that set out in the contested decision without adducing the slightest evidence. Such an allegation is not capable of demonstrating that the Commission in any way manifestly erred in its assessment.

273    As regards the argument whereby the applicants criticise the Commission for having considered that the 2013 and 2017 calls for tenders had enabled the applicants to choose the marketing services offered in such a way that they primarily promoted their own air transport services to Montpellier on Ryanair’s website, whereas it was the APFTE which chose the content and time of the publication, it must be observed that that fact is not such as to call into question the conclusion that Ryanair was the main beneficiary of the agreements at issue.

274    As regards the applicants’ argument based on the difference between the marketing campaigns carried out under the agreements at issue and the marketing campaigns carried out by Ryanair in respect of its flights, it must be held that that argument is not capable of demonstrating that the marketing campaigns resulting from the agreements at issue were not primarily of interest to Ryanair.

275    As regards the argument put forward by the applicants in their reply that there is a contradiction between the claim, in recital 304 of the contested decision, that the marketing services provide a benefit for Ryanair by increasing load factors and the claim that the APFTE and Montpellier airport derive no benefit at all from those services, it is sufficient to point out that the Commission merely stated that the applicants were not in a position to promote the City of Montpellier and its surroundings effectively and that the tangible contribution made by the marketing campaigns for the purposes of that promotion had not been demonstrated. Accordingly, there is no contradiction in the Commission’s arguments.

276    Consequently, the third part must be rejected as unfounded.

(d)    The fourth part, alleging that the Commission incorrectly concluded that the price paid by the APFTE was not in line with the market price

277    First, the applicants submit that the contested decision does not sufficiently explain why the 2013 and 2017 calls for tenders did not guarantee a market price.

278    Secondly, the applicants claim that the Commission’s assessments in that regard are incorrect. As regards the 2013 call for tenders, they claim that the Commission incorrectly considered that the procedure relating thereto was not unconditional. In particular, advertising on airlines’ websites is more effective and the division of the call for tenders into five lots was linked to the scope of the call for tenders. In addition, the Commission has not shown that the inclusion of obligations relating to the operation of air transport services is likely to increase the price of the marketing services and that the outcome would have been different if the APFTE had not restricted the call for tenders to airlines. Furthermore, the call for tenders was sufficiently well-publicised and transparent. As regards the 2017 call for tenders, the applicants claim that its terms were not specifically designed to favour Ryanair. The selection criteria were sufficiently broad, the tendering specifications did not refer to air transport activities or to a specific airport and a competing bid had been proposed. Moreover, the Commission has not shown that that call for tenders was discriminatory.

279    Thirdly, the applicants criticise the Commission for having considered that the APFTE had no interest in minimising costs.

280    Fourthly, the applicants claim that they provided several expert reports during the investigation establishing that the prices charged for the marketing services sold through the marketing agreements were in line with the market price. However, the Commission did not put forward any valid argument to explain to what extent those reports were not relevant.

281    The Commission disputes those arguments.

282    As a preliminary point, it should be noted that, as is apparent from recitals 184, 306 and 307 of the contested decision, the Commission considered that the finding that there was no real need for the APFTE to conclude the agreements at issue was sufficient to determine that there was an economic advantage. However, given that Ryanair had raised arguments relating to the price paid in its comments on the opening decision, it also analysed whether the prices paid by the APFTE were in line with market prices.

283    Accordingly, the applicants’ arguments relating to the Commission’s conclusions concerning the establishment of marketing service prices must be rejected as ineffective in as much as they are directed against grounds of the contested decision which must be regarded as having been included for the sake of completeness.

284    In any event, in the first place, it should be borne in mind that the market price is the highest price which a private investor acting under normal competitive conditions is ready to pay for a service (see, to that effect, judgment of 24 October 2013, Land Burgenland and Others v Commission, C‑214/12 P, C‑215/12 P and C‑223/12 P, EU:C:2013:682, paragraph 92 and the case-law cited).

285    For the purpose of checking the market price, account may be taken of, in particular, the manner in which the service was acquired, for example, by means of public tendering which was designed to ensure that the sale took place under market conditions. It follows that where a public authority uses an open, transparent and unconditional tendering procedure, it can be presumed that the market price corresponds to the highest bid, provided that it is established, first, that that bid is binding and credible and, secondly, that the consideration of economic factors other than the price is not justified (see, to that effect, judgments of 24 October 2013, Land Burgenland and Others v Commission, C‑214/12 P, C‑215/12 P and C‑223/12 P, EU:C:2013:682, paragraphs 93 and 94, and of 16 July 2015, BVVG, C‑39/14, EU:C:2015:470, paragraph 32).

286    According to the case-law, the question whether a tendering procedure has been open and transparent is determined on the basis of a range of indicators specific to the circumstances of each case (see judgment of 7 March 2018, SNCF Mobilités v Commission, C‑127/16 P, EU:C:2018:165, paragraph 68 and the case-law cited).

287    It is in the light of the case-law cited in paragraphs 284 to 286 above that it is appropriate to examine the applicants’ complaints regarding the calls for tenders, while bearing in mind that, in that context, the Court cannot rule directly on the very lawfulness of the tendering procedure.

288    In the present case, the Commission considered, in recitals 312 to 316 of the contested decision, that the issuing of the 2013 and 2017 calls for tenders did not guarantee a market price. It found, in essence, that that issuing could not exclude an advantage and that the calls for tenders were designed in such a way that the applicants could prevail over other candidates.

289    In the light of the material in the file, there is no need to call into question that finding. It should be noted that, as regards the 2010 agreement, it is apparent from recitals 53 and 310 of the contested decision that it was signed without a prior tendering procedure. In those circumstances, in accordance with the case-law cited in paragraph 285 above, it cannot be presumed that it was signed at the market price.

290    As regards the 2013 call for tenders, it should be noted that, as is apparent from recitals 63 to 73 of the contested decision, the only requirement that the marketing service provider needed to fulfil in relation to the marketing itself was to include a link on its website to the APFTE’s website. However, that call for tenders divided the contract into five lots, four of which corresponded to the routes operated by Ryanair when the call for tenders was launched. Furthermore, it is common ground between the parties that Ryanair was the only tenderer to submit a bid for those four lots. Furthermore, it is apparent from recital 244 of the contested decision that no agreement was concluded for the fifth lot, which concerned a route that Ryanair had operated since 2011 but had stopped operating between the publication of the specifications of that call for tenders and the conclusion of the agreements at issue.

291    In that context, even if, as the applicants maintain, the 2013 call for tenders was sufficiently well-publicised and transparent, the Commission cannot be criticised for having considered that the issuing of that call for tenders did not guarantee a market price.

292    In so far as the applicants claim that advertising on airlines’ websites is more effective and that the division of the 2013 call for tenders into five lots was linked to the scope of that call for tenders, it is sufficient to note that those circumstances do not call into question the finding in recital 70 of the contested decision – a finding which is not disputed by the applicants – that Ryanair was the only company to submit a bid following the 2013 call for tenders. In the absence of other bids, it is impossible to determine whether the bid submitted by the applicants was in line with the market price.

293    In addition, although the applicants claim that the Commission has not shown that the inclusion of obligations relating to the operation of air transport services is likely to increase the price of the marketing services and that the outcome would have been different if the APFTE had not restricted the call for tenders to airlines, it should be noted that the Commission clarified that an entity wishing only to purchase marketing services to promote a given area would have no interest in including obligations relating to the operation of air transport services in the agreements concluded with the provider of those marketing services; nor would it have any interest in including such obligations in the calls for tenders organised for the purchase of marketing services, in order to demonstrate that such obligations in agreements and calls for tenders limit the number of undertakings able to provide the marketing services requested. Consequently, the applicants cannot criticise the Commission for failing to show that the inclusion of such obligations in marketing services agreements was likely to increase the price of the marketing services or that the outcome would have been different if the APFTE had not restricted the call for tenders to airlines.

294    As regards the 2017 call for tenders, it should be noted that, as is apparent from recitals 74 to 81 of the contested decision, that call for tenders referred to seven lots corresponding, in particular, to the regions in which the three airports served by Ryanair from Montpellier airport were located when the call for tenders was launched and that those three lots were awarded to Ryanair, despite the existence of a competing bid. In addition, in accordance with the tendering specifications, the agreements concerned were agreements under which the marketing services would be provided and paid for only on the issue of purchase orders by the APFTE, for which payment corresponded to the two seasons of the civil aviation calendar. Furthermore, the agreements concluded with Ryanair were the only agreements that the APFTE implemented as a result of that call for tenders.

295    The applicants submit that the conditions of the 2017 call for tenders were not specifically designed to favour Ryanair, since the selection criteria were sufficiently broad, the tendering specifications did not refer to air transport activities or to a specific airport and a competing bid had been proposed. In that regard, it is sufficient to point out that, as is apparent from paragraph 294 above, that call for tenders referred to seven lots corresponding, in particular, to the regions in which the three airports served by Ryanair were located and that those three lots were awarded to Ryanair, despite the existence of a competing bid. Furthermore, the 2017 agreements were the only agreements that the APFTE implemented as a result of that call for tenders.

296    Furthermore, as regards the applicants’ argument that the Commission has not shown that the call for tenders was discriminatory, it is sufficient to observe that the Commission demonstrated, on the basis of a range of indicators set out in recitals 74 to 81, 208 to 212 and 314 of the contested decision, that the tendering criteria were defined in such a way as to favour Ryanair’s bids, in particular in so far as the APFTE had not identified any particular reason for choosing the three regions concerned (Rhineland-Palatinate, Wallonia and Yorkshire) as targets for marketing services, other than the fact that they were the only three regions already served by direct flights operated by Ryanair from Montpellier airport.

297    The applicants’ complaints relating to the calls for tenders must therefore be rejected.

298    In the second place, it is necessary to analyse the applicants’ arguments relating to the Commission’s assessment of the benchmarking provided by Ryanair.

299    In the present case, first, the Commission stated, in recitals 317 to 324 of the contested decision, that the study carried out by an economic analysis firm, which concluded that AMS’s marketing agreements provided for prices which were in line with market prices by comparing them with the prices charged by other online marketing services providers, was not relevant for the purpose of determining whether the payments made by the APFTE to the applicants were in line with the market price. That study compares only the gross prices indicated on the rate cards of several marketing services providers, without taking account of discounts applied in order to determine the actual prices. The discounts applied to marketing agreements can vary from one agreement to another. Furthermore, the study suggests that there is no direct correlation between the number of visitors to a website and the price of an advertisement in terms of the cost per thousand displays on that website. However, the price that a customer is prepared to pay for a marketing service depends on the expected return on investment. Moreover, that study does not take into account the purchasing posture of the visitor to the site. It compares websites with very different numbers and traffic that target very different customers, whose readiness to purchase and intention to purchase vary to a greater or lesser extent.

300    Secondly, the Commission found that the various bilateral marketing agreements provided by Ryanair at its request had very different durations, scopes and amounts, so that there was no price transparency in that market.

301    Thirdly, the Commission noted that an analysis of the bids submitted for lots 4 and 5 of the 2017 call for tenders showed that advertising for the region on websites which were comparable in terms of services could have been obtained at a lower price.

302    None of the evidence put forward by the applicants is capable of establishing a manifest error of assessment on the part of the Commission.

303    First, as regards the comparability of the agreements at issue with other agreements, it should be noted that the applicants merely state that they had submitted such agreements. That fact is not such as to demonstrate that the Commission made a manifest error of assessment when it found, in recital 322 of the contested decision, that there was no price transparency since the agreements submitted by the applicants had very different durations, scopes and amounts.

304    Secondly, as regards the relevance of the other expert reports, in so far as the applicants complain that the Commission failed to explain to what extent the evidence which the applicants had submitted in order to prove that the agreements at issue were in line with the market price was unconvincing, it should be borne in mind that the Commission cannot be required to mention or to express a position in the contested decision on each of the documents sent to it by the applicants, the relevance of which they have failed to prove as regards the examination which the Commission was required to carry out (see, to that effect, judgment of 16 January 2018, EDF v Commission, T‑747/15, EU:T:2018:6, paragraph 148).

305    Moreover, as regards the relevance of the study referred to in paragraph 299 above, as is apparent from that study (Annex A.4.1.4 to the application), the prices actually paid for advertising services might differ owing to, for example, discretionary discounts and special offers and this is an important limitation. The applicants’ argument that it is impossible to obtain prices after deduction is not such as to establish a manifest error of assessment on the part of the Commission in that regard.

306    In addition, in so far as the applicants merely maintain that the Commission’s assessment that there is no correlation between the number of visitors to a website offering marketing services and the price of the marketing services does not take account of the fact that pricing takes into consideration the number of visitors to a website, it is sufficient to note that that finding alone is not sufficient to render implausible the assessment of the facts made in the contested decision.

307    Furthermore, as regards the applicants’ argument that the consideration of the ‘purchasing posture’ of the visitor to the website fails to take account of the value of Ryanair’s website, it is sufficient to observe that the assessment in recital 321 of the contested decision concerns the comparability of the study of Ryanair’s website with that of other sites. In that context, it is irrelevant, in that regard, that Ryanair has a favourable ‘purchasing posture’.

308    Thirdly, the applicants’ arguments relating to the Commission’s assessment of the lack of cost-minimisation measures by the APFTE are not such as to prove a manifest error of assessment in the contested decision. Although the applicants criticise the Commission for having found that the 2010 agreement had not been concluded following a call for tenders, so that the APFTE did not seek to minimise prices, and for not having noted that the 2013 and 2017 calls for tenders were such as to minimise prices, it must be observed that the Commission considered that even the issuing of calls for tenders did not guarantee market prices. Moreover, the fact that the APFTE was seeking to ensure that Ryanair would bring a constant flow of passengers by air is irrelevant since the Commission’s analysis consists in examining whether the price of the marketing services is in line with the market price.

309    Accordingly, the fourth part of the fourth plea must be rejected, as must the fourth plea in law in its entirety.

310    In the light of all the foregoing considerations, it must be held that the error found in paragraph 155 above is not such as to lead to the annulment of the contested decision.

5.      The fifth plea in law, alleging infringement of Article 107(1) TFEU, inasmuch as the Commission failed to identify AMM as a beneficiary of the aid

311    The applicants complain, in essence, that the Commission did not include AMM among the beneficiaries of the aid. According to the applicants, that company is an indirect beneficiary and not merely a secondary beneficiary since it benefited from the marketing services because of the increase in traffic. In addition, it exercised influence in decision-making regarding the APFTE’s purchases of marketing services. Furthermore, in a recent decision to initiate the formal investigation procedure, the Commission analysed whether the operator of the airport concerned could be regarded as an indirect beneficiary. The applicants put forward that argument in their comments, but the Commission failed to take it into account. By failing to carry out such an examination in the present case, the Commission failed to fulfil its obligation to state reasons and erred in law.

312    The Commission disputes the applicants’ arguments.

313    In that regard, it must be pointed out that Article 107 TFEU prohibits aid granted by a Member State or through State resources in any form whatsoever, without drawing a distinction as to whether the aid-related advantages are directly or indirectly conferred (judgment of 4 March 2009, Italy v Commission, T‑424/05, not published, EU:T:2009:49, paragraph 108).

314    In the present case, it should be noted that, in recitals 325 and 341 of the contested decision, the Commission stated, in essence, that the agreements at issue conferred a selective economic advantage on the applicants. It found, in recital 345 of that decision, that those agreements constituted State aid, within the meaning of Article 107(1) TFEU, to the applicants’ benefit. Accordingly, it concluded that the applicants had to be regarded as beneficiaries of the aid.

315    The applicants claim, in essence, that AMM also benefited from the agreements at issue because of the increase in traffic, with the result that the Commission incorrectly failed to identify it as an indirect beneficiary of the aid. In that regard, it should be noted that the fact, even if it were established, that AMM also benefited from the agreements at issue has no bearing, as such, on the finding that the applicants benefited from those agreements, with the result that that argument of the applicants must be regarded as ineffective (see, to that effect, judgment of 12 March 2020, Elche Club de Fútbol v Commission, T‑901/16, EU:T:2020:97, paragraph 42).

316    In any event, it must be held that, as is apparent from recital 285 of the contested decision, nothing in the file permitted a finding by the Commission that the agreements at issue had actually had the effect of increasing the number of international tourists on the routes which Ryanair operated to Montpellier airport. This is not disputed by the applicants. On the contrary, it is apparent from recital 237 of that decision that Ryanair’s passenger numbers at that airport had been decreasing since 2012. In the absence of evidence to support the applicants’ assertion that AMM benefited from the agreements at issue because of the increase in traffic, the Commission cannot be accused of any error of law or manifest error of assessment.

317    The applicants’ argument that AMM exercised influence in decision-making regarding the APFTE’s purchases of marketing services should also be rejected. In that regard, it should be borne in mind that, as is apparent from paragraph 132 above, before March 2011, the APFTE’s strategic choices, namely the choice of specific marketing agreements, were ultimately predetermined by the CCIM and the other public members of the APFTE and, after that date, the choice of geographical areas to be targeted by marketing services was actually made by the local authorities and the CCIM, thus excluding AMM.

318    The applicants’ argument that, in a subsequent decision, the Commission analysed whether the operator of an airport was an indirect beneficiary, cannot succeed either. The Commission’s later decision-making practice has no bearing on the assessment of the lawfulness of the contested decision (see, to that effect, judgments of 20 May 2010, Todaro Nunziatina & C., C‑138/09, EU:C:2010:291, paragraph 21, and of 15 June 2005, Regione autonoma della Sardegna v Commission, T‑171/02, EU:T:2005:219, paragraph 177).

319    In so far as the applicants claim that the Commission should have examined whether indirect aid had been granted to Montpellier airport as they had raised that issue in their comments submitted during the formal investigation procedure, it is sufficient to note that, according to settled case-law, the Commission is not obliged to adopt a position on all the arguments relied on by the parties concerned, but it is sufficient if it sets out the facts and the legal considerations having decisive importance in the context of the decision (see judgment of 6 March 2003, Westdeutsche Landesbank Girozentrale and Land Nordrhein-Westfalen v Commission, T‑228/99 and T‑233/99, EU:T:2003:57, paragraphs 278 to 280 and the case-law cited).

320    It follows from the foregoing that this plea must be rejected as ineffective, without it being necessary to rule on its admissibility, which is disputed by the Commission.

6.      The sixth plea in law, alleging infringement of Article 107(1) TFEU, inasmuch as the Commission failed to establish the selectivity of the agreements at issue

321    The applicants complain that the Commission established the selectivity of the agreements at issue on the basis of the consideration that they were individual measures which had not been granted on the basis of an aid scheme. They submit that, in the judgment of 13 December 2018, Ryanair and Airport Marketing Services v Commission (T‑77/16, not published, EU:T:2018:947), the General Court held that, in such a situation, it was for the Commission to establish that the terms granted to the applicants were more favourable than those applicable to other airlines using the airport and that those terms were, accordingly, selective. They claim that, contrary to what is stated by the Commission, that consideration does not concern only the situation in which airport charges are collected pursuant to a schedule of charges, but also applies where individual agreements are concluded between airlines and airports. In paragraph 56 of the judgment of 9 September 2014, Hansestadt Lübeck v Commission (T‑461/12, EU:T:2014:758), the General Court held that the requirement as to selectivity was not assessed on the basis of a distinction between general measures and individual measures, but by means of a substantive analysis of whether all the customers of a public body could benefit from privileged tariffs or similar measures. That approach was confirmed by the Court of Justice (judgment of 21 December 2016, Commission v Hansestadt Lübeck, C‑524/14 P, EU:C:2016:971). Furthermore, in the judgment of 20 December 2017, Comunidad Autónoma de Galicia and Retegal v Commission (C‑70/16 P, EU:C:2017:1002), the Court of Justice held, in essence, that the requirement as to selectivity was not automatically met if a measure applied exclusively to a specific economic sector or to undertakings in a given geographical area.

322    The applicants add that the Commission incorrectly found, without any supporting evidence, that the agreements at issue were one-off measures. The Commission also stated that the APFTE had used 30 to 40% of its budget to purchase marketing services from other providers, which could be airlines with sufficiently popular websites that could be used to promote the region. That fact proves that there is a ‘template’ for contractual relationships between the APFTE and the airlines present at Montpellier airport. Moreover, the Commission did not analyse the extent to which those airlines were in a legal and factual situation comparable to that of the applicants. In the judgment of 20 December 2017, Comunidad Autónoma de Galicia and Retegal v Commission (C‑70/16 P, EU:C:2017:1002), the Court of Justice held that such a failure to state reasons constituted an infringement of essential procedural requirements and impeded judicial review by the EU judicature.

323    The Commission disputes those arguments.

324    In that regard, it should be noted that the selective application of a State measure constitutes one of the characteristics of ‘State aid’ within the meaning of Article 107(1) TFEU (see judgment of 9 September 2014, Hansestadt Lübeck v Commission, T‑461/12, EU:T:2014:758, paragraph 44 and the case-law cited). That article prohibits aid ‘favouring certain undertakings or the production of certain goods’, that is to say, selective aid (judgment of 14 January 2015, Eventech, C‑518/13, EU:C:2015:9, paragraph 54).

325    It should next be recalled that the requirement as to selectivity under Article 107(1) TFEU must be clearly distinguished from the concomitant detection of an economic advantage in that, where the Commission has identified an advantage, understood in a broad sense, as arising directly or indirectly from a particular measure, it is also required to establish that that advantage specifically benefits one or more undertakings. It falls to the Commission to show, in particular, that the measure at issue creates differences between undertakings which, with regard to the objective of the measure, are in a comparable situation. It is necessary therefore that the advantage be granted selectively and that it be liable to place certain undertakings in a more favourable situation than that of others (judgments of 4 June 2015, Commission v MOL, C‑15/14 P, EU:C:2015:362, paragraph 59, and of 30 June 2016, Belgium v Commission, C‑270/15 P, EU:C:2016:489, paragraph 48).

326    It must, however, be observed that the requirement as to selectivity differs depending on whether the measure at issue is envisaged as a general aid scheme or as an individual aid measure. In the latter case, the identification of the economic advantage is, in principle, sufficient to support the presumption that it is selective. By contrast, when examining a general aid scheme, it is necessary to identify whether the measure at issue, notwithstanding the finding that it confers an advantage of general application, does so to the exclusive benefit of certain undertakings or certain sectors of activity (see, to that effect, judgments of 4 June 2015, Commission v MOL, C‑15/14 P, EU:C:2015:362, paragraph 60, and of 30 June 2016, Belgium v Commission, C‑270/15 P, EU:C:2016:489, paragraph 49).

327    In recitals 326 to 341 of the contested decision, the Commission noted that, since the agreements at issue had not been signed on the basis of an aid scheme within the meaning of Article 1(d) of Regulation 2015/1589, they had to be regarded as individual measures. As regards the 2010 agreement, it found that it had been concluded directly with AMS without a prior call for tenders and without having been based on an act meeting the requirements of Article 1(d) of Regulation 2015/1589. As regards the 2013 agreements and the 2017 agreements, the Commission considered, in essence, that the issuing of the calls for tenders organised by the APFTE, which was designed in such a way as to favour the services offered by the applicants, had not been sufficient to open the procurement to other service providers effectively. Thus, it concluded that the agreements at issue were one-off measures, concluded individually between the parties, containing specific contractual obligations and not applying public or otherwise predetermined prices applied by the APFTE, with the result that the economic advantage conferred on the applicants had to be regarded as selective.

328    That analysis must be upheld. First, it should be borne in mind that, as is apparent from paragraph 326 above, when assessing the selective nature of an individual measure, the identification of the economic advantage is, in principle, sufficient to support the presumption that it is selective. In the present case, the agreements at issue contain terms individually agreed between the APFTE and the applicants. As is apparent from recitals 53 to 57 of the contested decision, the 2010 agreement states that AMS undertakes to provide the APFTE with a range of marketing services on Ryanair’s website, and that Ryanair undertakes to operate air routes between Montpellier airport, on the one hand, and Frankfurt-Hahn airport, Brussels-Charleroi airport and Leeds-Bradford airport, on the other. It also states that the amounts of marketing services offered by AMS are linked to Ryanair’s commitment to operate those air routes and that, in the event of a failure to honour those commitments, payment of the price will be refused or will be the subject of an amendment. As regards the 2013 agreements, it is apparent from recitals 63 to 73 of the contested decision that they provide for the lots awarded to Ryanair and their price. The same is true of the 2017 agreements which, in accordance with recitals 74 to 81 of that decision, indicate the lots designating the European regions served by Ryanair and the amount of the services on the basis of a purchase order.

329    Secondly, it should be noted that it is apparent from the file that the APFTE sought to conclude the agreements at issue with the applicants.

330    As regards the 2010 agreement, by which Ryanair undertook, inter alia, to operate air routes between Montpellier airport, on the one hand, and Frankfurt-Hahn airport, Brussels-Charleroi airport and Leeds-Bradford airport, on the other, it is apparent from recital 16 of the contested decision that those routes were already established when the APFTE was created, namely on 24 June 2010. This is not disputed by the applicants. In the absence of a call for tenders with a view to the signing of that agreement, it is not inconceivable that the APFTE did not seek another provider for those destinations and that budget, as the Commission found in recital 331 of the contested decision.

331    As regards the 2013 agreements, it should be observed that it is apparent from recital 334 of the contested decision, as well as footnote 168 thereto, that, as the 2010 agreement was due to expire, the APFTE was obliged to organise a call for tenders and that only the flows covered by that agreement would be put out to tender, destination by destination. In addition, the applicants do not dispute that, as is apparent from recitals 68, 70 and 336 of that decision, the lots ‘Brussels-Charleroi’, ‘Frankfurt-Hahn’, ‘Leeds’ and ‘Birmingham’ and the minimum frequencies indicated in the call for tenders of 2 October 2013 in relation to those lots corresponded exactly to the air transport services operated by Ryanair when the call for tenders was launched and that Ryanair had been the only airline to submit a bid for those four lots. It follows that the applicants were favoured as a result of the conditions referred to in that call for tenders.

332    As regards the 2017 agreements, it should be noted that, as is apparent from recitals 75 and 78 of the contested decision, the specifications of the call for tenders of 13 March 2017 designated, among the seven lots covering the European regions whose inhabitants were to be targeted by the marketing services, three lots corresponding to the regions in which the three airports served by Ryanair from Montpellier airport were located when the call for tenders was launched, namely ‘Wallonia’, ‘Rhineland-Palatinate’ and ‘Yorkshire’, and those three lots were awarded to Ryanair despite the existence of a competing bid. In addition, it is apparent from recital 81 of that decision that the agreements concluded with Ryanair were the only agreements that the APFTE implemented as a result of that call for tenders. It follows that the specifications of that call for tenders guided the choice of service provider towards the applicants.

333    In those circumstances, it must be held that the agreements at issue are selective in nature.

334    The applicants’ other arguments are not such as to call into question that assessment.

335    First, the applicants complain that the Commission established the selectivity of the agreements at issue on the grounds that they were individual measures which had not been granted on the basis of an aid scheme. In that regard, it is sufficient to recall that, in the case of individual measures, such as those at issue in the present case, the selectivity of the economic advantage is presumed (see, to that effect, judgment of 4 June 2015, Commission v MOL, C‑15/14 P, EU:C:2015:362, paragraph 60). In any event, it should be observed that, as is apparent from recitals 331 and 334 to 339 of the contested decision, the Commission also took into account the minutes of the APFTE’s inaugural general meeting on 24 June 2010, reflecting a desire to continue the previous agreements with the applicants without seeking other suppliers, and the terms of the 2013 and 2017 calls for tenders, which were designed in such a way as to favour the applicants.

336    Secondly, it is necessary to reject the applicants’ argument based on the judgment of 13 December 2018, Ryanair and Airport Marketing Services v Commission (T‑77/16, not published, EU:T:2018:947). In that regard, it should be noted that the case that gave rise to that judgment concerned the application of discounts on schedules of airport charges on the basis of individual agreements and that the discounts on the charges were offered to all airlines wishing to operate out of the airport concerned. Accordingly, it was on the basis of the judgments of 21 December 2016, Commission v Hansestadt Lübeck (C‑524/14 P, EU:C:2016:971), and of 9 September 2014, Hansestadt Lübeck v Commission (T‑461/12, EU:T:2014:758), that the Court held that it was for the Commission to establish that the terms granted to the applicants were more favourable than those applicable to other airlines using the airport and that those terms were, as a result, selective. In the present case, the applicants do not dispute that, as is apparent from recital 340 of the contested decision, the agreements at issue do not set out public prices, which are also applicable to their competitors.

337    Thirdly, the applicants are incorrect to rely on the judgment of 9 September 2014, Hansestadt Lübeck v Commission (T‑461/12, EU:T:2014:758), in which the General Court held that the requirement as to selectivity was not assessed on the basis of a distinction between general measures and individual measures, but by means of a substantive analysis of whether all the customers of a public body could benefit from privileged tariffs or similar measures. In that regard, it is sufficient to note that the case which gave rise to that judgment concerned a generally applicable measure (see judgment of 9 September 2014, Hansestadt Lübeck v Commission, T‑461/12, EU:T:2014:758, paragraphs 4 to 8), and that, in paragraph 54 of the judgment of 21 December 2016, Commission v Hansestadt Lübeck (C‑524/14 P, EU:C:2016:971), the Court of Justice stated, in essence, that the examination of the selectivity at issue had to be carried out ‘within the context of a particular legal regime’.

338    Fourthly, the same is true of the applicants’ argument based on the judgment of 20 December 2017, Comunidad Autónoma de Galicia and Retegal v Commission (C‑70/16 P, EU:C:2017:1002), in which the Court of Justice held, in essence, that the requirement as to selectivity was not automatically met if a measure applied exclusively to a specific economic sector or to undertakings in a given geographical area. In that regard, it is sufficient to point out that the Court of Justice also explained that a measure is selective only if, within the context of a particular legal regime, it has the effect of conferring an advantage on certain undertakings over others, in a different sector or the same sector, which are, in the light of the objective pursued by that regime, in a comparable factual and legal situation (judgment of 20 December 2017, Comunidad Autónoma de Galicia and Retegal v Commission, C‑70/16 P, EU:C:2017:1002, paragraph 61).

339    Fifthly, the applicants claim that the Commission incorrectly considered, without any supporting evidence, that the agreements at issue were one-off measures, since the APFTE had used 30 to 40% of its budget to purchase marketing services from other providers. It should be noted that, although the Commission stated, in recital 340 of the contested decision, that the agreements at issue and their amendments and renewals were ‘one-off measures’, it is apparent from recitals 326 to 341 of that decision that the Commission based its analysis of selectivity on (i) the fact that those agreements were concluded individually and did not apply public or otherwise predetermined prices applied by the APFTE and (ii) the fact that the terms of the 2013 and 2017 calls for tenders were designed in such a way as to favour the applicants.

340    Sixthly, contrary to the applicants’ assertions, the Commission was not required to examine, in the present case, whether there was a template for contractual relations between the APFTE and all the airlines operating at Montpellier airport requiring it to analyse whether the other airlines were in a legal and factual situation comparable to that of the applicants. As has been recalled in paragraphs 329 to 333 above, it is apparent from the file that the APFTE sought to conclude the agreements at issue with the applicants. Moreover, as the Commission contends without being challenged by the applicants, the latter received the largest part of the APFTE’s budget without ever having carried more than 15% of the passengers at Montpellier airport, whereas more than 10 airlines were present at that airport (recitals 233, 246 and 250 and Table 2 of the contested decision, as well as footnote 4 thereto). Those circumstances were sufficient for the Commission to establish selectivity, without having to examine whether the other airlines were in a legal and factual situation comparable to that of the applicants.

341    It follows from all of the foregoing that the sixth plea in law must be rejected.

B.      The application for a measure of organisation of procedure

342    By letter of 19 February 2021, the applicants requested the Court to adopt a measure of organisation of procedure asking the Commission to produce certain material from the file relating to the administrative procedure which led to the contested decision. According to the applicants, access to those documents is necessary to enable them fully to exercise their rights of defence and to enable the Court to review the contested decision.

343    The Commission contends that the request for production of documents should be refused.

344    In that regard, it should be recalled that it is for the Court to appraise the usefulness of measures of organisation of procedure and measures of inquiry (judgment of 19 June 2018, Le Pen v Parliament, T‑86/17, not published, EU:T:2018:357, paragraph 206).

345    In the present case, it must be stated, first, that the document showing that the corrigendum was adopted by the College of Commissioners was provided by the Commission in Annex B1 to its defence.

346    Secondly, as regards the minutes of the meetings of the APFTE and the documents intended to show that the purchase of the marketing services was not in line with the market price, it must be observed that the applicants do not state precisely the reasons for that request, as required by Article 88(2) of the Rules of Procedure of the General Court.

347    In any event, it should be noted that the material in the file and the explanations given at the hearing are sufficient to enable the applicants to exercise their rights of defence and to enable the Court to give a ruling, since the Court has been able to rule on the basis of the forms of order sought, the pleas in law and the arguments put forward during the proceedings and in the light of the documents lodged by the parties.

348    Thirdly, as regards the documents submitted to the Commission by third parties, it should be recalled that the parties concerned, except for the Member State responsible for granting the aid, do not have a right under the procedure for reviewing State aid to consult the documents on the Commission’s administrative file (judgment of 29 June 2010, Commission v Technische Glaswerke Ilmenau, C‑139/07 P, EU:C:2010:376, paragraph 58).

349    It follows that the applicants’ application for measures of organisation of procedure must be refused.

350    It must be concluded that the action must be dismissed in its entirety.

IV.    Costs

351    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicants have been unsuccessful, they must be ordered to bear their own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission.

352    The Council is to bear its own costs, in accordance with Article 138(1) of the Rules of Procedure.

On those grounds,

THE GENERAL COURT (Ninth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Ryanair DAC and Airport Marketing Services Ltd to bear their own costs and to pay those incurred by the European Commission;

3.      Orders the Council of the European Union to bear its own costs.

Costeira Kancheva Zilgalvis

Delivered in open court in Luxembourg on 14 June 2023.

V. Di Bucci D. Spielmann

Registrar President

*      Language of the case: English.

1      This judgment is published in extract form.