Case T‑894/16
Société Air France
v
European Commission
Judgment of the General Court (Sixth Chamber, Extended Composition), 11 July 2019
(Action for annulment — State aid — Measures implemented by France in favour of Marseille Provence Airport and airlines using the airport — Decision declaring the aid compatible with the internal market — Investment subsidies — Differentiation between airport charges applicable to national and international flights — Reduced airport charges to encourage flights from the new Marseille Provence terminal 2 — Lack of individual concern — No substantial effect on the competitive position — Inadmissibility)
1. Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Individual concern — Criteria — Commission decision finding an aid compatible with the internal market — Action by an undertaking not demonstrating a competitive relationship with the aid beneficiary — Inadmissibility
(Arts 108(2) and (3) TFEU and 263, fourth para., TFEU)
(see paragraphs 24-44)
2. Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Individual concern — Criteria — Commission decision finding an aid compatible with the internal market — Action by an undertaking not demonstrating that its market position was substantially affected — Inadmissibility — Infringement of the right to effective judicial protection — None
(Arts 108(2) and (3), and 263, fourth para., TFEU; Charter of Fundamental Rights of the European Union, Art. 47)
(see paragraphs 53-69, 80)
3. Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Commission decision declaring compatibility of aid with the internal market — Action by an undertaking which has participated in the administrative procedure — Characteristic insufficient for a finding of capacity to bring an action
(Arts 108(2) TFEU and 263, fourth para., TFEU)
(see paragraphs 71, 72)
Résumé
In the judgment in Air France v Commission (T‑894/16), delivered on 11 July 2019, the Court dismissed as inadmissible the airline Air France’s action seeking annulment of a State aid decision adopted by the Commission concerning measures implemented by the French authorities in favour of Marseille Provence Airport and airlines using that airport. (1)
Marseille Provence Airport is one of the largest airports in France. In 2004, with a view to revitalising its traffic and redirecting its development towards European destinations, the operator of that airport decided to set up, next to the main terminal, a new terminal for ‘low-cost’ flights. In order to finance the construction of that new airport, the operator, inter alia, received an investment subsidy from the French State. Specific rules providing for reduced passenger charges were, furthermore implemented for the new terminal. Finally, an agreement to purchase advertising space was concluded for a renewable five-year period to publicise Marseille as a destination in order to attract high passenger numbers.
After examining its various measures in the light of State aid rules, the Commission considered that Marseille Provence Airport had benefited from investment aid that was compatible with the internal market by virtue of Article 107(3)(c) TFEU. As regards the reduced charges applicable to the new terminal for ‘low-cost’ flights and the agreement to purchase advertising space, the Commission, however, concluded that there was no State aid within the meaning of Article 107(1) TFEU. That Commission decision was the subject of an action for annulment brought by Air France, which complained, inter alia, that ‘low-cost’ airlines such as Ryanair, gained a competitive advantage by using the new terminal dedicated to that type of flight.
However, the Court rejected Air France’s action as inadmissible, on the ground that it did not have standing to bring proceedings under the fourth paragraph of Article 263 TFEU.
In that regard, the Court pointed out, first, that, under that provision, an applicant, such as Air France, had to satisfy the dual requirement of being directly and individually concerned by the contested decision. In accordance with the settled case-law, Air France’s individual concern could, furthermore, be confirmed only if it were in competition with the beneficiary of the aid measures which form the subject matter of the decision contested before the Court and if its market position had been substantially affected by those measures.
In the light of its principles, the Court then noted that the investment subsidy allocated for the financing of the construction of the new terminal at Marseille Provence Airport had been granted solely to the operator of that airport, which was the sole beneficiary. Since there was no competitive relationship between that operator and Air France, the latter was, consequently, not individually concerned by the Commission decision declaring that subsidy compatible with the internal market.
As regards the reduced charges applicable to the new terminal for ‘low-cost’ flights and the agreement to purchase advertising space, the Court, finally, stated that the relevant market on which the effect of those measures was to be examined comprised all the routes operated from and to that airport, irrespective of the terminal used. Thus, it was for Air France to show, as the applicant, that its competitive position on that market was substantially affected by the reduced charges and by the agreement to purchase advertising space. Even if those measures had directly affected the competitive position of Air France on the relevant market, given its competition with Ryanair, it had not adduced evidence to permit the view that such an effect was substantial. Its action therefore had to be dismissed as inadmissible in its entirety.