JUDGMENT OF THE GENERAL COURT (Tenth Chamber)
18 October 2023 (*)
(State aid – Italian air transport market – Aid granted by Italy to an airline in the context of the COVID-19 pandemic – Direct grant – Decision not to raise any objections – Aid intended to make good the damage caused by an exceptional occurrence – Article 107(2)(b) TFEU – Consideration of earlier aid measures in favour of the same beneficiary which are the subject of pending formal investigations – Assessment of damages – Causal link – Principle of non-discrimination – Free provision of services – Freedom of establishment – Obligation to state reasons)
In Case T‑333/21,
Ryanair DAC, established in Swords (Ireland), represented by F.‑C. Laprévote, E. Vahida, V. Blanc, S. Rating, I.‑G. Metaxas-Maranghidis and D. Pérez de Lamo, lawyers,
applicant,
v
European Commission, represented by L. Flynn, J. Carpi Badía and F. Tomat, acting as Agents,
defendant,
supported by
Italian Republic, represented by G. Palmieri, P. Gentili and G. Santini acting as Agents,
intervener,
THE GENERAL COURT (Tenth Chamber),
composed, at the time of the deliberations, of A. Kornezov (Rapporteur), President, K. Kowalik-Bańczyk and D. Petrlík, Judges,
Registrar: S. Spyropoulos,
having regard to the written part of the procedure,
further to the hearing on 11 November 2022,
gives the following
Judgment
1 By its action under Article 263 TFEU, the applicant, Ryanair DAC, seeks annulment of Commission Decision C(2020) 9659 final of 29 December 2020 on State aid SA.59188 (2020/NN) – Italy – COVID-19 aid to Alitalia (‘the contested decision’).
I. Background to the dispute
2 Alitalia – Società Aerea Italiana SpA, in extraordinary administration (‘Alitalia’), was an Italian airline serving national and international destinations to and from various airports in Italy, among others.
3 In May 2017, Alitalia and its wholly owned subsidiary, Alitalia Cityliner SpA., were first placed under extraordinary administration pursuant to Italian insolvency legislation and were subsequently declared insolvent by a national court.
4 On 17 March 2020, the Italian authorities adopted decreto-legge no 18 – Misure di potenziamento del Servizio sanitario nazionale e di sostegno economico per famiglie, lavoratori e imprese connesse all’emergenza epidemiologica da COVID-19 (Decree-Law No 18 on measures to strengthen the national health service and to provide economic support for families, workers and undertakings to deal with the COVID-19 epidemiological emergency) (GURI No 70 of 17 March 2020, p. 1, ‘Decree-Law No 18/2020’). That decree-law provided for the establishment of a fund (‘the Fund’) in the sum of EUR 350 million to make good the damage suffered by airlines due essentially to the imposition of travel restrictions linked to the COVID-19 pandemic. The airlines eligible for compensation under the Fund were those which, first, held an air passenger transport licence issued by the Italian Civil Aviation Authority (ENAC) and, second, had been entrusted, on the date of adoption of that decree-law, with public service obligations in accordance with Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community (OJ 2008 L 293, p. 3).
5 On 25 December 2020, the Italian Republic notified the European Commission under Article 107(2)(b) TFEU of an individual aid measure in favour of Alitalia in the form of a grant from the Fund in the sum of EUR 73.02 million (‘the measure at issue’). That measure was intended to compensate Alitalia for the damage suffered on 19 specifically designated routes, connecting, inter alia, airports in Italy with airports outside the European Union (‘the routes concerned’), during the period from 16 June to 31 October 2020 (‘the period in question’), as a result of the travel restrictions linked to the COVID-19 pandemic.
6 On 29 December 2020, the Commission, without initiating the formal investigation procedure provided for in Article 108(2) TFEU, adopted the contested decision, by which it found that the measure at issue constituted unlawful State aid, but that it was compatible with the internal market by virtue of Article 107(2)(b) TFEU.
II. Forms of order sought
7 The applicant claims that the Court should:
– annul the contested decision;
– order the Commission to pay the costs.
8 The Commission contends that the Court should:
– dismiss the action as unfounded;
– order the applicant to pay the costs.
9 The Italian Republic did not lodge a statement in intervention within the prescribed period, but contended at the hearing that the action should be dismissed.
III. Law
10 It should be recalled that the Courts of the European Union are entitled to assess, according to the circumstances of each case, whether the proper administration of justice justifies the dismissal of the action on its merits without first ruling on its admissibility (see, to that effect, judgments of 26 February 2002, Council v Boehringer, C‑23/00 P, EU:C:2002:118, paragraphs 51 and 52, and of 14 September 2016, Trajektna luka Split v Commission, T‑57/15, not published, EU:T:2016:470, paragraph 84). In the present case, since the action is in any event and for the reasons set out below unfounded and the examination of the admissibility of the action involves a complex analysis, it is appropriate, in the interests of procedural economy, to examine at the outset the merits of the action, without first ruling on its admissibility.
11 In support of the action, the applicant raises five pleas in law alleging, first, that the Commission misused its powers and infringed Article 107(2)(b) TFEU by giving priority to examining the measure at issue and by ‘freezing’ its examination of two loans granted by the Italian Republic to Alitalia in 2017, in the sum of EUR 600 million and EUR 300 million respectively (‘the 2017 measure’) and a loan granted by the Italian Republic to Alitalia in 2019 in the sum of EUR 400 million (‘the 2019 measure’), second, that the Commission infringed Article 107(2)(b) TFEU and committed a manifest error of assessment in its examination of the proportionality of the aid, third, infringement of the principles of non-discrimination, free provision of services and freedom of establishment, fourth, that the Commission should have initiated the formal investigation procedure and, fifth, breach of the obligation to state reasons.
12 The first plea and the first complaint in the first part of the second plea, in essence, relate to the impact of the 2017 and 2019 measures on the examination of the measure at issue. In so far as that plea and that complaint overlap in part, the Court considers it appropriate to examine them together.
A. The first plea and the first complaint in the first part of the second plea relating to the impact of the 2017 and 2019 measures on the examination of the measure at issue
13 The applicant states that, on 23 April 2018, the Commission adopted Decision C(2018) 2357 final in Case SA.48171 (2018/C) (ex 2018/NN, ex 2017/FC) – Italy – Alleged State aid in favour of Alitalia, by which it initiated a formal investigation procedure in accordance with Article 108(2) TFEU in order to examine the compatibility of the 2017 measure with the internal market in the light of Article 107(3)(c) TFEU and the Guidelines on State aid for rescuing and restructuring non-financial undertakings in difficulty (OJ 2014 C 249, p. 1) (‘the R&R Guidelines’). On 28 February 2020, the Commission adopted Decision C(2020) 1151 final in Case SA.55678 (2019/NN) – Italy – New loan to Alitalia, by which it initiated a new formal investigation procedure in accordance with Article 108(2) TFEU in order to examine the compatibility of the 2019 measure with the internal market in the light of Article 107(3)(c) TFEU and the R&R Guidelines.
14 In that regard, the applicant submits, in essence, that, by stating in the contested decision that the measure at issue was compatible with the internal market without having first closed or taken into consideration the formal investigation procedures concerning the 2017 and 2019 measures, which were under way when the contested decision was adopted, the Commission misused its powers and infringed Article 107(2)(b) TFEU. Furthermore, according to the applicant, the Commission should have taken those measures into consideration in its calculation of the damage suffered by Alitalia as a result of the travel restrictions linked to the COVID-19 pandemic and in its assessment of the necessity and proportionality of the measure at issue.
15 The Commission and the Italian Republic dispute the applicant’s arguments.
16 In the first place, according to the case-law, an act is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence, to have been taken with the exclusive or main purpose of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case (see, judgment of 4 December 2013, Commission v Council, C‑121/10, EU:C:2013:784, paragraph 81 and the case-law cited).
17 In the present case, it should be noted that, when the contested decision was adopted, the formal investigation procedures for the 2017 and 2019 measures were still ongoing. The Commission had therefore not adopted its definitive position with regard to those two measures.
18 In addition, it must be pointed out that, unlike the 2017 and 2019 measures, the measure at issue needs to be viewed in the context of the COVID-19 pandemic, an exceptional occurrence which required the Commission to act as soon as possible in view of the urgency and seriousness of the economic situation caused by that pandemic.
19 In those circumstances, the Commission cannot be criticised for having adopted the contested decision, which was specifically intended to make good the damage suffered by Alitalia as a result of the travel restrictions linked to the COVID-19 pandemic, as quickly as possible and before the formal procedures for examining the 2017 and 2019 measures, which were unrelated to the COVID-19 pandemic, were closed.
20 It follows that the applicant has not demonstrated that, by adopting the contested decision before closing the formal investigation procedures in respect of the 2017 and 2019 measures, the Commission had adopted that decision exclusively or decisively for purposes other than those of compensating Alitalia for the damage suffered as a result of the travel restrictions linked to the COVID-19 pandemic or with the aim of evading a procedure laid down by the Treaty, within the meaning of the case-law cited in paragraph 16 above.
21 Accordingly, the applicant has not demonstrated that the Commission misused its powers.
22 That conclusion is not called into question by the applicant’s claim that the examination of the 2017 and 2019 measures was delayed or entailed an infringement of certain procedural rules. Such defects, even if established, may be capable of affecting the legality of the decisions relating to the 2017 and 2019 measures, but would have no effect on the legality of the contested decision.
23 In the second place, as regards the applicant’s argument that the Commission infringed Article 107(2)(b) TFEU in that it failed to take account of the 2017 and 2019 measures in its calculation of the damage suffered by Alitalia and in its assessment of the necessity and proportionality of the measure at issue, it should be noted that, in the contested decision, the Commission stated that the existence of formal investigation procedures in respect of the 2017 and 2019 measures did not prevent the Italian authorities from granting aid to Alitalia under Article 107(2)(b) TFEU.
24 In accordance with Article 4(4) of 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), and Article 6(1) of that regulation, the Commission is to adopt a decision to initiate the formal investigation procedure only where, after a preliminary examination of the measure at issue, it considers that the measure raises doubts as to its compatibility with the internal market.
25 Although the assessments made in the context of a decision to initiate the formal investigation procedure are indeed preliminary in nature, that does not mean that such a decision has no legal effects. Indeed, the Court has already had occasion to hold that national courts must take such a Commission decision into account when deciding whether the measure in question should be classified as State aid and whether, as a result, its implementation should be suspended (see, to that effect, judgment of 21 November 2013, Deutsche Lufthansa, C‑284/12, EU:C:2013:755, paragraphs 37 to 43, and order of 4 April 2014, Flughafen Lübeck, C‑27/13, not published, EU:C:2014:240, paragraphs 20 to 26).
26 The lessons drawn from that case-law, although they concern the obligations of national courts resulting from the finding of the existence of State aid, are also relevant in the present case, in so far as it is apparent from that case-law that a decision to initiate the formal investigation procedure is not without legal effects and cannot therefore be ignored solely on the ground that the assessments which it contains are of a preliminary nature.
27 Accordingly, the mere fact that the decisions to initiate the formal investigation procedures in respect of the 2017 and 2019 measures are of a preliminary nature does not in itself relieve the Commission of the obligation to take into consideration the doubts which it raised itself as to the compatibility of those measures with the internal market, provided, however, that those measures are relevant factors for the examination of the compatibility of the measure at issue with the internal market.
28 According to settled case-law, when the Commission examines the compatibility of State aid with the internal market, it must take account of all the relevant factors in the case in question (see, to that effect, judgments of 18 January 2012, Djebel – SGPS v Commission, T‑422/07, not published, EU:T:2012:11, paragraph 171 and the case-law cited, and of 27 February 2013, Nitrogénművek Vegyipari v Commission, T‑387/11, not published, EU:T:2013:98, paragraph 126).
29 It is therefore necessary to examine whether the 2017 and 2019 measures are relevant factors for the assessment of the compatibility of the measure at issue with the internal market in the light of Article 107(2)(b) TFEU.
30 In that regard, it should be noted that, in the contested decision, in order to calculate the amount of damage suffered by Alitalia on the routes concerned during the period in question as a result of the travel restrictions linked to the COVID-19 pandemic, the Commission compared, on each of the routes concerned, first, Alitalia’s actual results during the period in question and, second, Alitalia’s results in a counterfactual scenario, without travel restrictions linked to the COVID-19 pandemic. The total amount of damage suffered by Alitalia corresponded to the difference between those two results, calculated on the basis of Alitalia’s revenues and fixed and variable costs on each of the routes concerned.
31 By contrast, the 2017 and 2019 measures were aimed at rescuing and restructuring Alitalia and were in no way linked to the COVID-19 pandemic. Thus, the 2017 and 2019 measures had completely different subject matters and objectives from those of the measure at issue.
32 It follows that the 2017 and 2019 measures are not relevant factors for assessing the compatibility of the measure at issue with the internal market and that, consequently, the Commission was not obliged to take them into consideration in the contested decision.
33 That finding is not called into question by the applicant’s arguments.
34 First, the applicant claims, relying on statements made in December 2019 by the Italian Minister for Industry at the time, reported in a press article, that, in the absence of the 2017 and 2019 measures, Alitalia would have exited the market before the period in question and that, consequently, it would not have been active, let alone have any revenue, during that period, so that the measure at issue is ‘excessive’. It adds, in essence, that the Commission should not have relied on Alitalia’s results during the period from 16 June to 31 October 2019 in the counterfactual scenario, given that they were ‘contaminated’ by the 2017 measure, in that they reflected Alitalia’s commercial activities which would not have taken place or would have been reduced in the absence of that measure.
35 However, those arguments are still too general and are unsubstantiated, with the result that they cannot succeed. The arguments are based on the premiss that the 2017 and 2019 measures were incompatible with the internal market. However, that premiss was not established when the contested decision was adopted. Moreover, as noted in paragraph 31 above, the measure at issue had a completely different subject matter and objective from those of the 2017 and 2019 measures, with the result that the doubts raised by the Commission as to the compatibility of those measures with the internal market concerned aspects unrelated to the measure at issue.
36 In addition, the applicant has not demonstrated, with supporting evidence, that the 2017 and 2019 measures had a concrete impact on the calculation of the damage which the measure at issue seeks to compensate. The applicant has failed to demonstrate specifically what cost or revenue generated on any one of the routes concerned would have been affected by those measures.
37 Second, as regards the applicant’s arguments based on the judgment of 15 May 1997, TWD v Commission (C‑355/95 P, EU:C:1997:241), it should be noted that, in that judgment, the Court held, in essence, that the Commission could legitimately decide that new State aid could not be declared compatible with the internal market as long as earlier unlawful and incompatible aid granted to the same beneficiary had not been repaid, since the cumulative effect of that aid was to distort competition in the internal market to a significant extent. The Court stated that, in those circumstances, the non-repayment of the earlier unlawful aid incompatible with the internal market constituted a substantive factor, lawfully taken into consideration by the Commission in its examination of the compatibility of the new aid (see, to that effect, judgment of 15 May 1997, TWD v Commission, C‑355/95 P, EU:C:1997:241, paragraph 25).
38 The present case differs from the one that gave rise to the judgment of 15 May 1997, TWD v Commission (C‑355/95 P, EU:C:1997:241), in that, in the present case, at the time of the adoption of the contested decision, the Commission had not declared the measures previously granted to be incompatible with the internal market and had not ordered their recovery in an earlier decision.
39 Third, the applicant’s argument taken from the judgment of 14 April 2021, Ryanair v Commission (SAS, Denmark; COVID-19) (T‑378/20 EU:T:2021:194, paragraph 68), cannot succeed either. Paragraph 68 of that judgment concerns the question whether a difference in treatment between air carriers may be permitted under Article 107(2)(b) TFEU, with the result that the lessons to be drawn from that judgment are irrelevant to the examination of the merits of the present plea.
40 It follows from the foregoing that the first plea and the first complaint in the first part of the second plea must be rejected as unfounded.
B. The second plea alleging that the Commission infringed Article 107(2)(b) TFEU and made a manifest error of assessment in its examination of the proportionality of the aid
41 The applicant’s second plea is divided into two parts concerning, first, the assessment of the damage and, second, the competitive advantage obtained by Alitalia.
1. The first part relating to the assessment of the damage
42 In the first part of its second plea, the applicant raises seven complaints, the first of which has been examined together with the first plea in paragraphs 13 to 40 above.
(a) The second complaint alleging that the Commission did not distinguish between the damage caused by the travel restrictions linked to the COVID-19 pandemic and the losses caused by Alitalia’s pre-existing difficulties
43 The applicant submits, in essence, that the Commission breached its obligation to state reasons and committed a manifest error of assessment because, in its assessment of the damage, it did not distinguish between, on the one hand, the damage caused by the travel restrictions linked to the COVID-19 pandemic and, on the other, the losses caused by Alitalia’s pre-existing difficulties.
44 The Commission and the Italian Republic dispute the applicant’s arguments.
45 As a preliminary point, it should be recalled that, according to the case-law, only economic disadvantages caused directly by natural disasters or exceptional occurrences may be compensated under Article 107(2)(b) TFEU (judgment of 23 February 2006, Atzeni and Others, C‑346/03 and C‑529/03, EU:C:2006:130, paragraph 79).
46 In particular, according to the case-law, the occurrence giving rise to the damage, as defined in the contested decision, must be the determining cause of the damage which the aid at issue is intended to remedy and must be directly responsible for causing it. A direct link exists only where the damage is the direct consequence of the occurrence in question without being dependent on the interposition of other causes. Accordingly, it is incumbent on the Commission to examine with particular care whether the occurrence was really the decisive cause of the damage suffered by the beneficiary of the aid concerned or, on the contrary, some of the damage suffered was due to the beneficiary’s pre-existing difficulties (see, to that effect, judgment of 9 June 2021, Ryanair v Commission (Condor; Covid-19), T‑665/20, EU:T:2021:344, paragraphs 45 and 58).
47 That said, there is nothing to prevent the beneficiary of aid under Article 107(2)(b) TFEU from being a firm in difficulty.
48 In the present case, it is common ground, first, that Alitalia was a firm in difficulty when the measure at issue was granted and, second, that, in the contested decision, the Commission did not expressly refer to the distinction between the damage caused by the travel restrictions linked to the COVID-19 pandemic and the losses caused by Alitalia’s pre-existing difficulties.
49 However, it is apparent from the contested decision that the methodology used by the Commission to calculate the damage suffered by Alitalia, described in paragraph 30 above, took into consideration only Alitalia’s revenues and costs directly linked to its passenger air transport activities on the routes concerned. Those revenues and costs were thus directly affected by the travel restrictions linked to the COVID-19 pandemic on the routes concerned.
50 The applicant has not identified any specific cost item which, in its submission, should have been excluded from the Commission’s calculation of the damage, or treated differently by the Commission, because that cost was caused by Alitalia’s pre-existing difficulties.
51 It follows from the foregoing that the applicant has not shown that the methodology used by the Commission to calculate the damage suffered by Alitalia also compensated for the losses caused by its pre-existing difficulties.
52 That conclusion is not called into question by the applicant’s argument in which it criticises the Commission for taking Alitalia’s actual results during the period between 16 June and 31 October 2019 on the routes concerned as the starting point in its examination of the counterfactual scenario. In that regard, it claims, in essence, that Alitalia was in a poor financial situation during the period from 2008 to 2019 and that, therefore, in the absence of travel restrictions, its financial results would have continued to deteriorate during 2020. Assuming that, in the absence of such restrictions, Alitalia’s results, during the period in question in 2020, would have been the same as those recorded during the period from 16 June to 31 October 2019, the Commission overestimated the damage.
53 The applicant refers to several pieces of evidence in that regard, in particular to a table showing Alitalia’s operating results during the period from 2009 to 2020, three press articles concerning Alitalia’s losses, the fact that it had been insolvent since 2017 and the fact that, at the time of the adoption of the contested decision, it was a firm in difficulty within the meaning of the R&R Guidelines.
54 First of all, as the Commission correctly states in its defence, Alitalia’s actual results during the period from 16 June to 31 October 2019 on the routes concerned, which it took into account in its examination of the counterfactual scenario, constituted the most recent historical data recorded before the outbreak of the COVID-19 pandemic. As a general rule, it is appropriate to take into account the most recent historical data, unless the applicant demonstrates, on the basis of objective and consistent evidence, that such data is unreliable.
55 In that regard, the applicant’s references to Alitalia’s overall financial results in the years 2008 to 2019 do not show that the historical data in question were unreliable. The historical data used by the Commission in the contested decision specifically concerned Alitalia’s results on the routes concerned during the period from 16 June to 31 October 2019, which is justified by the fact that the measure at issue was intended to compensate Alitalia specifically for the damage suffered on the routes concerned and during the period in question as a result of the travel restrictions linked to the COVID-19 pandemic. As the Commission states, in the present case, despite the overall losses shown by Alitalia in 2019, it showed positive results on the routes concerned during the period from 16 June to 31 October 2019.
56 Moreover, and in any event, the data submitted by the applicant do not make it possible to identify a clear trend in the evolution of Alitalia’s financial situation over the years, given that its financial results often fluctuated either downwards or upwards, depending on the year.
57 Furthermore, while it is true that Alitalia had been insolvent since 2017 and that, at the time of the adoption of the contested decision, it was a firm in difficulty within the meaning of the R&R Guidelines, the fact remains that the applicant has not identified any specific cost item caused by that insolvency or linked to it in any other way that would have been compensated by the measure at issue.
58 It follows from the foregoing that the applicant has not shown that the Commission was incorrect to take into consideration Alitalia’s actual results on the routes concerned during the period between 16 June and 31 October 2019 in its examination of the counterfactual scenario or that such a methodology had led to an overestimation of the damage suffered by Alitalia on the routes concerned.
59 Lastly, it is necessary to reject the applicant’s argument that, instead of relying on Alitalia’s actual results during the period from 16 June to 31 October 2019 on the routes concerned, the Commission should have taken into consideration the business, restructuring or liquidity plans drawn up by Alitalia before the start of the COVID-19 pandemic for the period in question. In the absence of evidence showing that the use of the most recent historical data relating to the period from 16 June to 31 October 2019 was unreliable for calculating the damage suffered by Alitalia on the routes concerned during the period in question, it must be held that those data constituted a more appropriate basis for examining the counterfactual scenario than provisional estimates of Alitalia’s future results on those routes.
60 Accordingly, the applicant has not adduced any evidence or proof to suggest, let alone demonstrate, that, in the present case, the measure at issue compensated, even if only in part, Alitalia’s losses caused by its pre-existing difficulties.
61 Moreover, since the Commission clearly explained the methodology it used to calculate the damage suffered by Alitalia in Section 2.6 (recitals 79 to 83) of the contested decision, it did not infringe its obligation to state reasons either.
62 It follows from the foregoing that the second complaint in the first part of the second plea must be rejected as unfounded.
(b) The third complaint alleging that the Commission erred in its assessment of the scope and repercussions of certain travel restrictions
63 The third complaint in the first part of the second plea consists, in essence, of two sub-complaints alleging first, that the Commission erred in its assessment of the travel restrictions applicable in the territory of certain States and, second, that the Commission erroneously took domestic routes into account in the examination of the counterfactual scenario.
(1) Travel restrictions applicable in the territory of certain States
64 The applicant submits, in essence, that the Commission erred in its assessment of the existence and scope of the travel restrictions applicable during the period in question in Italy, Montenegro and Brazil, with the result that it did not correctly identify the cause of the alleged damage.
65 As regards the travel restrictions imposed by the Italian authorities, the applicant claims that those applicable to journeys to and from Algeria, Brazil and Montenegro changed during the period concerned, with intervals at which restrictions were lifted and then reintroduced in whole or in part. As regards the travel restrictions imposed by the Montenegrin and Brazilian authorities, the applicant submits that the former did not impose any travel ban on flights from the European Union with effect from 9 July 2020, whereas the latter did not impose any travel restrictions on flights from the European Union with effect from 29 July 2020.
66 The Commission and the Italian Republic dispute the applicant’s arguments.
67 Contrary to what the applicant claims, the circumstances referred to by the applicant in paragraph 65 above have no impact on the Commission’s calculation of the damage.
68 First, as the Commission correctly observes in its statement in defence, there could be damage on one of the routes concerned even if only one of the States connected by that route had adopted travel restrictions. This is because most passengers make return flights, so that if one of the journeys is impeded by such restrictions, the other is less likely to take place.
69 Second, the fact that some of the routes concerned were affected by travel restrictions only during part of the period in question is similarly not capable of invalidating the Commission’s calculation of the damage suffered by Alitalia. As is apparent from paragraph 30 above, in its calculation of the damage, the Commission took into account the operating revenues actually generated by Alitalia on each of the routes concerned during the period in question. It follows that if, during part of that period, there were no such restrictions on one of the routes concerned and if Alitalia had therefore operated flights on that route, the revenues and costs thus generated on that route would have been taken into account in the calculation of the damage.
70 Third, it should be noted that it is in fact apparent from Sections 2.1.2.9 (recital 59), 2.1.2.10 (recital 60) and 2.1.2.18 (recital 68) of the contested decision that, during the period in question, there were no Alitalia flights on the routes concerned connecting Italy with Montenegro and Brazil. The applicant has not adduced any evidence capable of showing that the absence of flights on those routes during that period is explained by reasons other than the travel restrictions described in the contested decision.
71 Furthermore, in its reply, the applicant adds that the Italian authorities lifted the restrictions on flights to Montenegro and Brazil on 8 August 2020 and that, as a result, the remainder of the period in question until 31 October 2020 was free from restrictions both on the Italian and on the Montenegrin/Brazilian sides. That assertion is not substantiated in any way in view of the fact that the applicant merely refers in that regard to recitals 43 and 45 of the contested decision, which concern the travel restrictions adopted by the authorities in Israel and in Greece.
72 It follows from the foregoing that the first sub-complaint of the third complaint in the first part of the second plea must be rejected as unfounded.
(2) Consideration of domestic routes in the examination of the counterfactual scenario
73 The applicant submits that, in its examination of the counterfactual scenario, the Commission made a downward adjustment to Alitalia’s actual results during the period from 16 June to 31 October 2019 on the routes concerned, in order to exclude those passengers who, in 2020, would not have travelled on the routes concerned even in the absence of travel restrictions (‘the adjustment at issue’). The applicant submits that, when the Commission made that adjustment, instead of relying on the number of passengers who travelled on the domestic routes operated by Alitalia during the period in question, it should have taken as a reference point the number of passengers who travelled on international routes free of travel restrictions during that period, for example on the routes operated by Alitalia between Italy and Germany. In the applicant’s submission, it was more appropriate to take into consideration the latter routes, since they were international, like the routes concerned.
74 The Commission and the Italian Republic dispute the applicant’s arguments.
75 In the present case, in order to make the adjustment at issue, the Commission calculated that 42% of the passengers who had travelled between 16 June and 31 October 2019 on all domestic routes operated by Alitalia had also travelled on those routes during the period in question in 2020. It is not disputed that all domestic routes were unaffected by travel restrictions during the period in question. The Commission thus considered that, in its hypothetical counterfactual scenario without travel restrictions, during the period in question in 2020 Alitalia would have transported on the routes concerned only 42% of the passengers it had transported on those routes during the same period in 2019.
76 First, it is necessary to reject the applicant’s argument that the Commission gave insufficient reasons for its decision to rely on domestic routes in order to make the adjustment at issue. In that regard, it should be noted that, in recital 81 of the contested decision, the Commission explained in detail the methodology used to calculate the volume of passengers who, in 2020, would not have travelled on the routes concerned even in the absence of travel restrictions. In particular, in footnote 61 of that decision, it explained that it was justified to take domestic routes into account on the ground that they were free from travel restrictions during the whole of the period in question, whereas the Italian Republic had adopted restrictions affecting a large proportion of the international routes as of approximately mid-August 2020.
77 Second, if, in principle, as the applicant submits, it might appear more appropriate to base the adjustment at issue on data relating to international routes, given that all the routes concerned fall within that category, those data would still have to be reliable and sufficiently representative.
78 In the present case, the applicant has failed to demonstrate that there were reliable and sufficiently representative data relating to international routes connecting Italy, which were free from travel restrictions during the whole of the period in question. Although the applicant refers to routes operated by Alitalia between Italy and Germany, and even if those routes were free from travel restrictions during the whole of the period in question, the fact remains that they were only seven in number. They cannot therefore constitute a sufficiently representative sample, unlike the list of approximately 60 domestic routes operated by Alitalia on which the adjustment at issue was based, as the Commission rightly states.
79 Furthermore, in its reply, the applicant also notes that there were other international routes free from travel restrictions which could have served as a reference point for the adjustment at issue. In that regard, it refers to an annex to the reply which, in its submission, contains such examples. However, that annex shows only that Ryanair operated flights from Bergamo (Italy) to Barcelona (Spain) from 15 to 21 September and from Bergamo to Sofia (Bulgaria) from 16 to 21 September, the year not being indicated. Thus, those data relate only to a very limited period and concern only two air routes.
80 Accordingly, in order to make the adjustment at issue, the Commission was entitled to rely on domestic routes as a reliable and sufficiently representative reference point for routes free from travel restrictions during the whole of the period in question.
81 It follows from the foregoing that the second sub-complaint of the third complaint in the first part of the second plea and, therefore, the third complaint in the first part of the second plea in its entirety must be rejected as unfounded.
(c) The fourth complaint alleging that the Commission erred in its assessment of the avoided costs
82 The applicant claims that the assessment of avoided costs carried out in the contested decision is ‘opaque’. In addition, it criticises the Commission for failing to determine whether, during the period in question, Alitalia had adopted measures to eliminate all its ‘avoidable’ costs, thereby minimising the damage, or whether, on the contrary, it had incurred costs which it could have avoided, which would have had the effect of overestimating the damage.
83 The Commission and the Italian Republic dispute the applicant’s arguments.
84 In the first place, the applicant’s argument that the assessment of the avoided costs in the contested decision was ‘opaque’ must be rejected. In recital 80(b) of the contested decision, the Commission explained, in a sufficiently clear and precise manner, that, in its assessment of the damage, it had taken into consideration Alitalia’s additional and avoided costs, that is to say, the positive and negative impact of the travel restrictions on Alitalia’s variable and fixed costs. In that regard, the Commission stated that it had taken into account all Alitalia’s variable costs, in particular fuel costs, fees and charges, maintenance costs, commissions of the International Air Transport Association (IATA) and catering costs, in addition to Alitalia’s fixed costs which varied as a result of those restrictions, in particular lower personnel and marketing costs.
85 In the second place, as regards the applicant’s argument that the Commission should have ensured that the measure at issue did not compensate costs incurred by Alitalia which were ‘avoidable’, but which it had not avoided, suffice it to state that that argument is too general and is unsubstantiated.
86 The applicant has failed to specify which particular cost items Alitalia incurred on the routes concerned, when it could have avoided them, and which, therefore, ought to have been excluded from the calculation of the damage suffered by the applicant.
87 It follows from the foregoing that the fourth complaint in the first part of the second plea must be rejected as unfounded.
(d) The fifth complaint alleging that the Commission failed to take into account key factors as sources of rising costs
88 The applicant submits that, in its examination of the counterfactual scenario, the Commission failed to take account of the fact that certain cost items incurred by Alitalia during the period in question in 2020, in particular the maintenance costs of its fleet and fuel costs, were higher than those incurred by Alitalia during the same period in 2019, which had the effect of overestimating the damage.
89 The Commission and the Italian Republic dispute the applicant’s arguments.
90 As a preliminary point, it should be noted that, in its examination of the counterfactual scenario without travel restrictions, the Commission took, as a starting point, Alitalia’s actual results during the period from 16 June to 31 October 2019 on the routes concerned, which were then adjusted. As the Commission confirmed at the hearing, when, in that context, it examined the costs incurred by Alitalia on each of the routes concerned, it took as a starting point the actual maintenance costs of Alitalia’s fleet and its actual fuel costs during the period from 16 June to 31 October 2019.
91 The applicant submitted certain evidence to show that, in the absence of travel restrictions linked to the COVID-19 pandemic, the maintenance costs of Alitalia’s fleet and its fuel costs would have been higher during the period in question in 2020 than during the same period in 2019 and that, therefore, in its examination of the counterfactual scenario, the Commission should have anticipated an increase in those costs during the period in question in 2020.
92 In the first place, the applicant claims that the maintenance costs of Alitalia’s fleet, which was ageing and non-homogeneous, were higher in 2020 than in 2019, in view of the fact that, according to a study by the RAND Corporation entitled The Maintenance Costs of Aging Aircraft, the maintenance costs of commercial aircraft increase by 3.5% to 17.6% each year of an aircraft’s useful life.
93 In that regard, first, it should be noted, as the Commission did, that the RAND Corporation study referred to in paragraph 92 above dates from 2006 and is based on a limited number of airlines active on the North American market. Consequently, in view of the age of the study and the small sample of undertakings on which it is based, its probative value for the purposes of determining whether the maintenance costs of Alitalia’s fleet would have increased between 2019 and 2020 in the absence of travel restrictions can only be limited.
94 Second, it should be noted that, according to that study, in the case of aircraft over 12 years of age, maintenance costs increase only slightly, that is to say by 0.7% during each additional year of their useful life. Consequently, in view of the fact that, according to the information provided by the applicant, the average age of Alitalia’s fleet was 13 years, it cannot be concluded, on the basis of that study, that the maintenance costs of that fleet changed significantly between 2019 and 2020.
95 In its reply, the applicant adds that, according to IATA data from December 2019, aircraft operating expenses increased by 3.8% in 2019 and were supposed to increase by 3.5% in 2020. However, it should be noted that the concept of ‘operating expenses’ of aircraft is broader than that of ‘maintenance costs’ and that the applicant has failed to specify the correlation between those data and its argument relating to maintenance costs.
96 Furthermore, the fact raised by the applicant in the reply that, in Commission Decision C(2020) 5830 final of 20 August 2020 on State aid SA.57026 (2020/N) – Romania – COVID-19: Aid to Blue Air, the Commission had taken into account, in order to calculate the damage suffered by Blue Air, the fact that the reorganisation of Blue Air’s fleet would have led, inter alia, to a significant increase in maintenance costs in 2020 compared with 2019, is irrelevant in the present case. As the Commission correctly submits, Alitalia did not reorganise its fleet in 2019 in the same way as Blue Air did in 2019.
97 In the second place, according to the applicant, fuel costs vary significantly from year to year and, therefore, the Commission could not assume that those costs would remain stable between 2019 and 2020.
98 In that regard, the applicant refers to data showing the development of the prices of jet fuel and crude oil during the period from June 2014 to June 2021, from which it is apparent, first, that fuel prices fluctuated very significantly during that period, by undergoing steep decreases and increases at short intervals and, second, that those prices were significantly higher in 2019 than in 2020.
99 The applicant also relies on forecasts by the Energy Information Administration (United States) of January 2020, according to which fuel prices were to increase by 4.2% in 2020 compared with 2019.
100 In its statement in defence, the Commission cited an extract from an IATA press release from December 2019 according to which, on that date, IATA had forecast a decrease in jet fuel prices in 2020 as compared with 2019.
101 It is apparent from the evidence referred to in paragraphs 98 to 100 above that the forecasts made before the outbreak of the COVID-19 pandemic concerning the development of jet fuel prices during 2020 were not all consistent, with some forecasts expecting an increase in those prices, while others forecast a decrease in those prices. In actual fact, those differences tend rather to show that there was no certainty as to the development of jet fuel prices during the period in question. Furthermore, in view of the highly volatile nature of those prices, as shown by the data submitted by the applicant itself, the Commission cannot be criticised for not having anticipated their development.
102 Accordingly, the applicant has not submitted consistent and coherent evidence capable of demonstrating that, in the absence of travel restrictions linked to the COVID-19 pandemic, the maintenance costs of Alitalia’s fleet and its fuel costs would have been higher during the period in question in 2020 than during the same period in 2019. It follows that the applicant has not shown that the Commission erred in relying on the maintenance costs of Alitalia’s fleet and on its fuel costs during the period from 16 June to 31 October 2019 in its calculation of the damage.
103 It follows from the foregoing that the fifth complaint in the first part of the second plea must be rejected as unfounded.
(e) The sixth complaint alleging that the Commission did not assess the damage caused by the COVID-19 pandemic to airlines other than Alitalia
104 The applicant claims that, in the contested decision, the Commission committed an error of law and a manifest error of assessment because it should have examined not only the damage suffered by Alitalia due to the COVID-19 pandemic, but also the damage suffered by its competitors. In the applicant’s submission, an exceptional occurrence within the meaning of Article 107(2)(b) TFEU by definition affects several, if not all undertakings in the sector concerned, so that many other airlines suffered damage in Italy as a result of the travel restrictions imposed amid the COVID-19 pandemic. That provision is therefore intended to make good the damage also borne by Alitalia’s competitors, and not only by Alitalia.
105 The Commission and the Italian Republic dispute the applicant’s arguments.
106 It is admittedly true, as the applicant correctly states, that all the airlines present in Italy were affected by the travel restrictions linked to the COVID-19 pandemic and that, consequently, those airlines, like Alitalia, all suffered damage resulting from those restrictions.
107 However, as the Commission correctly states in its statement in defence, the fact remains that there is no requirement for Member States to grant aid to make good the damage caused by an ‘exceptional occurrence’ within the meaning of Article 107(2)(b) TFEU.
108 More specifically, first, while Article 108(3) TFEU requires Member States to notify their plans as regards State aid to the Commission before they are put into effect, it does not, however, require them to grant any aid (order of 30 May 2018, Yanchev, C‑481/17, not published, EU:C:2018:352, paragraph 22).
109 Second, an aid measure may be directed at making good the damage caused by an exceptional occurrence, in accordance with Article 107(2)(b) TFEU, irrespective of the fact that it does not make good the entirety of that damage (judgment of 9 November 2022, Ryanair v Commission (Croatia Airlines; COVID-19), T‑111/21, not published, EU:T:2022:699, paragraph 114).
110 Consequently, it does not follow either from Article 108(3) or from Article 107(2)(b) TFEU that Member States are obliged to make good the entirety of the damage caused by an exceptional occurrence, such that they likewise cannot be required to grant aid to all of the victims of that damage (judgment of 14 July 2021, Ryanair and Laudamotion v Commission (Austrian Airlines; COVID-19), T‑677/20, under appeal, EU:T:2021:465, paragraph 57).
111 Accordingly, contrary to what the applicant maintains, the Commission was not required to assess, in the contested decision, the damage caused to airlines other than Alitalia (see, to that effect, judgment of 14 July 2021, Ryanair and Laudamotion v Commission (Austrian Airlines; Covid-19), T‑677/20, under appeal, EU:T:2021:465, paragraph 95).
112 It follows from the foregoing that the sixth complaint in the first part of the second plea must be rejected as unfounded.
(f) The seventh complaint alleging that the Commission erred in its assessment of the Italian Republic’s commitment to define in a ministerial decree the method for calculating the damage suffered by Alitalia
113 The applicant submits, in essence, that the Italian Republic’s commitment, referred to in recital 85 of the contested decision, to define, in a ministerial decree, the method for calculating the damage suffered by Alitalia on the routes concerned during the period in question shows that the method for calculating the damage set out in that decision is incomplete or incorrect. It follows, according to the applicant, that the Commission infringed its obligation to state reasons or made a manifest error of assessment.
114 The Commission and the Italian Republic dispute the applicant’s arguments.
115 In the first place, it should be noted that the commitment referred to in paragraph 113 above expressly provides that the method for calculating the damage suffered by Alitalia, which was to be defined in the ministerial decree referred to in that commitment, was to enable the calculation of Alitalia’s net losses ‘as explained in section 2.6’ of the contested decision, it being noted that that section of that decision contains the methodology for calculating the damage described in paragraph 30 above.
116 It follows that the method for calculating damage provided for in that ministerial decree must match the method described in the contested decision.
117 The commitment referred to in paragraph 113 above is not intended either to determine a new method of calculating damage, which differs from the one set out in the contested decision, or to amend that method, but only to comply with the requirements of Article 79(2) of Decree-Law No 18/2020, which required the adoption of a ministerial decree laying down the detailed rules for the application of the aid covered by the measure at issue.
118 Accordingly, the applicant’s argument that the commitment in question shows that the method for calculating damage set out in the contested decision is incomplete or incorrect must be rejected.
119 In the second place, the applicant claims that that commitment is not subject to any time limit and that it is not certain that the Italian Republic will apply the international accounting standards normally used to calculate earnings before interest, taxes, depreciation and amortisation (EBITDA) in the context of that commitment. However, the applicant does not explain what relevance or impact that argument has as regards the legality of the contested decision.
120 It follows from the foregoing that the seventh complaint in the first part of the second plea and, therefore, the first part of the second plea in its entirety must be rejected as unfounded.
2. The second part concerning the competitive advantage obtained by Alitalia
121 The applicant claims, in essence, that the Commission committed a manifest error of assessment and an error of law, because, in its assessment of the proportionality of the measure at issue, it underestimated the value of the advantage given to Alitalia by taking into account only the nominal amount of the cash flow granted to Alitalia through the measure at issue, and not the competitive advantage it obtained as a result of that measure, which resulted in a strengthening of Alitalia’s position on the market.
122 The Commission and the Italian Republic dispute the applicant’s arguments.
123 In that regard, it should be noted that, for the purposes of assessing the compatibility of aid with the internal market, the advantage procured by that aid for the recipient does not include any economic benefit the recipient may have enjoyed as a result of exploiting the advantage. That benefit may not be the same as the advantage constituting the aid, and there may indeed be no such benefit, but that cannot justify a different assessment of the compatibility of the aid with the internal market (see, to that effect, judgment of 21 December 2016, Commission v Aer Lingus and Ryanair Designated Activity, C‑164/15 P and C‑165/15 P, EU:C:2016:990, paragraph 92).
124 Consequently, it must be held that the Commission was correct to take into account the advantage conferred on Alitalia resulting from the measure at issue. However, the Commission cannot be criticised for not having determined the existence of any possible economic benefit resulting from that advantage (see, to that effect, judgment of 14 July 2021, Ryanair and Laudamotion v Commission (Austrian Airlines; Covid-19), T‑677/20, under appeal, EU:T:2021:465, paragraph 120).
125 In those circumstances, the applicant is not justified in criticising the Commission for failing to take account of any possible competitive advantage obtained by Alitalia as a result of the measure at issue (see, to that effect, judgment of 14 July 2021, Ryanair and Laudamotion v Commission (Austrian Airlines; Covid-19), T‑677/20, under appeal, EU:T:2021:465, paragraph 121).
126 It follows from the foregoing that the second part of the second plea and, therefore, the second plea in its entirety must be rejected as unfounded.
C. The third plea alleging infringement of the principles of non-discrimination, the free provision of services and the freedom of establishment
127 The applicant submits, in essence, that the Commission infringed the principle of non-discrimination and the principles of free provision of services and freedom of establishment, on the ground that the measure at issue benefits only Alitalia.
128 The Commission and the Italian Republic dispute the applicant’s arguments.
129 It should be recalled that State aid which contravenes the provisions of the Treaty or the general principles of EU law cannot be declared compatible with the internal market (judgment of 22 September 2020, Austria v Commission, C‑594/18 P, EU:C:2020:742, paragraph 44; see also, to that effect, judgment of 15 April 2008, Nuova Agricast, C‑390/06, EU:C:2008:224, paragraphs 50 and 51).
1. Infringement of the principle of non-discrimination
130 The principle of non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (judgment of 15 April 2008, Nuova Agricast, C‑390/06, EU:C:2008:224, paragraph 66; see also, to that effect, judgment of 5 June 2018, Montero Mateos, C‑677/16, EU:C:2018:393, paragraph 49).
131 The elements which characterise different situations, and hence their comparability, must in particular be determined and assessed in the light of the subject matter and purpose of the EU act which makes the distinction in question. The principles and objectives of the field to which the act relates must also be taken into account (judgment of 16 December 2008, Arcelor Atlantique et Lorraine and Others, C‑127/07, EU:C:2008:728, paragraph 26).
132 Furthermore, it should be borne in mind that the principle of proportionality, which is one of the general principles of EU law, requires that acts adopted by EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued by the legislation in question (judgment of 17 May 1984, Denkavit Nederland, 15/83, EU:C:1984:183, paragraph 25); where there is a choice between several appropriate measures, recourse must be had to the least onerous measure and the disadvantages caused must not be disproportionate to the aims pursued (judgment of 30 April 2019, Italy v Council (Fishing quota for Mediterranean swordfish), C‑611/17, EU:C:2019:332, paragraph 55).
133 The applicant argues, in essence, that the contested decision allows discriminatory treatment which is neither appropriate nor necessary for achieving the objective of the measure at issue, that is to say, making good the damage caused by the travel restrictions linked to the COVID-19 pandemic. The applicant states that it holds at least 28% of the Italian market for passenger air transport services and that it therefore suffered approximately 28% of the damage caused by the travel restrictions linked to the COVID-19 pandemic in that Member State. The aim of the measure at issue would be achieved without discrimination, if it were granted to all the airlines present in Italy. In that regard, the contested decision does not explain why the measure at issue was granted only to Alitalia, even though other airlines present in Italy also suffered damage as a result of the travel restrictions linked to the COVID-19 pandemic. According to the applicant, the measure at issue is a measure of ‘naked economic nationalism’.
134 In that regard, in the first place, it should be pointed out that the measure at issue is intended to compensate Alitalia only for the damage it suffered on the routes concerned during the period in question as a result of the travel restrictions linked to the COVID-19 pandemic.
135 As noted in paragraphs 106 to 110 above, while it is true that all the airlines present in Italy were affected by travel restrictions linked to the COVID-19 pandemic and that, consequently, those airlines, like Alitalia, all suffered damage resulting from those restrictions, the fact remains that it does not follow from either Article 108(3) TFEU or Article 107(2)(b) TFEU that the Member States are required to make good all the damage caused by an exceptional occurrence, with the result that they cannot be required to grant aid to all the victims of that damage either.
136 In the second place, it should be noted that individual aid, such as that at issue, by definition benefits only one company, to the exclusion of all the other companies, including those in a situation comparable to that of the recipient of that aid. Consequently, such individual aid, by its nature, brings about a difference in treatment, or even discrimination, which is nevertheless inherent in the individual character of that measure. To argue, as the applicant does, that the grant of the aid at issue is contrary to the principle of non-discrimination in essence amounts to calling into question systematically the compatibility with the internal market of any individual aid solely on account of its inherently exclusive and thus discriminatory character, even though EU law allows Member States to grant individual aid provided that all the conditions laid down in Article 107 TFEU are satisfied.
137 In the third place and in any event, even if, as the applicant claims, the difference in treatment established by the measure at issue, in so far as it benefits only Alitalia, may amount to discrimination, it is necessary to ascertain whether it is justified by a legitimate objective and whether it is necessary, appropriate and proportionate in order to attain that objective. Similarly, it should be noted that, under the first paragraph of Article 18 TFEU, any discrimination on grounds of nationality within the scope of application of the Treaties ‘without prejudice to any special provisions contained therein’ is prohibited. Therefore, it is important to ascertain whether that difference in treatment is permitted under Article 107(2)(b) TFEU, which is the legal basis for the contested decision. That examination requires, first, that the objective of the measure at issue satisfies the requirements laid down in that provision and, second, that the conditions for granting the measure at issue, that is to say, in the present case, that it benefits only Alitalia, are such as to enable that objective to be achieved and do not go beyond what is necessary to achieve it.
138 First, as regards the objective of the measure at issue, the applicant does not dispute that compensation for damage suffered by an airline on the routes concerned during the period in question as a result of the travel restrictions linked to the COVID-19 pandemic makes it possible to make good, even if only in part, the damage caused by that pandemic. Nor does the applicant dispute that the COVID-19 pandemic constitutes an exceptional occurrence within the meaning of Article 107(2)(b) TFEU.
139 Second, as regards the conditions for granting the measure at issue, it must be observed that that measure was intended to compensate for the damage suffered by Alitalia as a result of the travel restrictions linked to the COVID-19 pandemic, only on specifically designated routes connecting, inter alia, Italy with States outside the European Union and only during a specific period, that is to say, the period from 16 June to 31 October 2020.
140 As is apparent from the contested decision, that is explained by the fact that general lockdown and border closure measures adopted by the Member States were partially lifted at national level and at EU level in June 2020, but that numerous travel restrictions remained in force during the period in question, in particular as regards travel to and from certain States outside the European Union. According to the contested decision, the travel restrictions in force during the period in question had the effect of rendering the provision of air transport services on the routes concerned de facto unviable and were as such equivalent to a full ban.
141 It is apparent from the contested decision that Alitalia was severely affected by the travel restrictions linked to the COVID-19 pandemic imposed on the routes concerned during the period in question.
142 In addition, as the Commission argues, in essence, in its statement in defence, several factors show that Alitalia played an important role in Italy’s air transport services and for the Italian economy, and had a particularly close, stable and lasting link with that Member State.
143 First of all, it is apparent from the contested decision, and not disputed by the applicant, that, before the COVID-19 pandemic, Alitalia served more than 100 destinations worldwide, carrying over 21 million passengers per year, in particular from its main hub at Rome Fiumicino airport and other airports in Italy. Nor is it disputed that, at the time of the adoption of the contested decision, Alitalia was one of the largest employers in Italy, with more than 11 000 employees. Finally, it is apparent from the contested decision that, on the date of adoption of Decree-Law No 18/2020, which is the legal basis for the measure at issue, that is to say, 17 March 2020, Alitalia was entrusted with public service obligations in Italy.
144 As regards the question whether the measure at issue goes beyond what is necessary to achieve the objective pursued, it should be noted that the value of that measure does not exceed the value of the damage suffered by Alitalia on the routes concerned during the period in question as a result of the travel restrictions linked to the COVID-19 pandemic, as is apparent in particular from paragraphs 82 and 122 of the contested decision. Therefore, the measure at issue does not go beyond what is necessary to achieve the legitimate objective it pursues.
145 Consequently, it must be held that the difference in treatment in favour of Alitalia is appropriate for the purpose of making good the damage resulting from those restrictions and does not go beyond what is necessary to achieve that objective.
146 Moreover, the applicant has not established that the fact of dividing the amount of the aid at issue among all the airlines operating in Italy would not deprive that measure of its effectiveness.
147 In any event and in so far as the difference in treatment brought about by the measure at issue may amount to discrimination, it follows that granting the benefit of that measure only to Alitalia was justified and that that measure does not infringe the principle of non-discrimination.
2. Infringement of the freedom of establishment and of the free provision of services
148 First, it should be noted that the provisions of the FEU Treaty concerning freedom of establishment are aimed at ensuring that foreign nationals and companies are treated in the host Member State in the same way as nationals of that State (see judgment of 6 October 2015, Finanzamt Linz, C‑66/14, EU:C:2015:661, paragraph 26 and the case-law cited).
149 Second, the free provision of services precludes the application of any national legislation which has the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State, irrespective of whether there is discrimination on the grounds of nationality or residence (see, to that effect, judgment of 6 February 2003, Stylianakis, C‑92/01, EU:C:2003:72, paragraph 25). However, it should be pointed out that, pursuant to Article 58(1) TFEU, the free provision of services in the field of transport is governed by the provisions of the title relating to transport, namely Title VI of the FEU Treaty. The free provision of services in the field of transport is therefore governed, in primary law, by a special legal regime (judgment of 18 March 2014, International Jet Management, C‑628/11, EU:C:2014:171, paragraph 36). Consequently, Article 56 TFEU, which enshrines the free provision of services, does not apply as such to the air transport sector (judgment of 25 January 2011, Neukirchinger, C‑382/08, EU:C:2011:27, paragraph 22).
150 Measures liberalising air transport services may therefore be adopted only under Article 100(2) TFEU (judgment of 18 March 2014, International Jet Management, C‑628/11, EU:C:2014:171, paragraph 38). As the applicant rightly notes, the EU legislature adopted Regulation No 1008/2008 on the basis of that provision, and its very purpose is to define the conditions for applying in the air transport sector the principle of free provision of services (see, by analogy, judgment of 6 February 2003, Stylianakis, C‑92/01, EU:C:2003:72, paragraphs 23 and 24).
151 In the present case, it should be noted that the applicant submits, in essence, that the aid measure at issue constitutes a restriction on the freedom of establishment and the free provision of services on account of its discriminatory nature.
152 While it is true that the measure at issue relates to individual aid which benefits only Alitalia, the applicant has not established how that exclusivity is such as to deter it from establishing itself in Italy or from providing services from and to that State. In particular, the applicant fails to identify the elements of fact or law that cause that measure to produce restrictive effects that go beyond those which trigger the prohibition in Article 107(1) TFEU, but which, as was found in paragraphs 138 to 144 above, are nevertheless necessary and proportionate to make good the damage caused to Alitalia by the exceptional occurrence of the COVID-19 pandemic, in accordance with the requirements laid down in Article 107(2)(b) TFEU.
153 Consequently, the measure at issue cannot constitute a barrier to the freedom of establishment or to the free provision of services. It follows that the applicant is not justified in alleging that the Commission failed to examine the compatibility of that measure with the freedom of establishment and the free provision of services.
154 It follows from the foregoing that the third plea must be rejected as unfounded.
D. The fourth plea alleging that the Commission should have initiated the formal investigation procedure
155 The applicant claims, in essence, that the examination carried out by the Commission was incomplete and insufficient, as demonstrated, in particular, by its arguments put forward in support of the first, second and third pleas. That is proof of serious difficulties which should have led the Commission to initiate the formal investigation procedure and to allow the applicant to submit its comments.
156 The Commission and the Italian Republic dispute the applicant’s arguments.
157 It should be noted that the applicants’ fourth plea is in fact subsidiary in nature, in case the Court did not examine the overall merits of the assessment of the measure at issue as such. According to settled case-law, the aim of such a plea is to enable interested parties to be held to have standing, in that capacity, to bring an action under Article 263 TFEU, which otherwise would be unavailable to them (see, to that effect, judgments of 24 May 2011, Commission v Kronoply and Kronotex, C‑83/09 P, EU:C:2011:341, paragraph 48, and of 27 October 2011, Austria v Scheucher-Fleisch and Others, C‑47/10 P, EU:C:2011:698, paragraph 44). The Court has examined and rejected the first three pleas in this action relating to the overall merits of the assessment of that measure, so that such a plea is deprived of its stated purpose.
158 Furthermore, it must be pointed out that this plea lacks any independent content. The applicant may, in order to preserve the procedural rights which it enjoys under the formal investigation procedure, rely only on pleas which show that the assessment of the information and evidence that the Commission had or could have had at its disposal during the preliminary examination phase of the measure notified ought to have raised doubts as to the compatibility of that measure with the internal market (see, to that effect, judgments of 22 December 2008, Régie Networks, C‑333/07, EU:C:2008:764, paragraph 81; of 9 July 2009, 3F v Commission, C‑319/07 P, EU:C:2009:435, paragraph 35; and of 24 May 2011, Commission v Kronoply and Kronotex, C‑83/09 P, EU:C:2011:341, paragraph 59), such as the insufficient or incomplete nature of the examination carried out by the Commission during the preliminary examination phase or the existence of complaints submitted by third parties. It should be noted that the fourth plea repeats in condensed form the arguments raised under the first to third pleas, without identifying specific evidence relating to the existence of potential serious difficulties.
159 It follows from the foregoing that the fourth plea must be rejected as unfounded.
E. The fifth plea alleging breach of the obligation to state reasons
160 The applicant submits that the Commission infringed the second paragraph of Article 296 TFEU in so far as, first, it failed to examine the value of the competitive advantage given to Alitalia, second, it failed to state reasons for its calculation of the damage suffered by Alitalia in so far as it did not take into consideration either the 2017 and 2019 measures or Alitalia’s losses caused by its pre-existing difficulties and, third, it did not examine whether the measure at issue was not discriminatory or whether it was compatible with Regulation No 1008/2008 and the principles of the free provision of services and freedom of establishment.
161 The Commission and the Italian Republic dispute the applicant’s arguments.
162 In that regard, it should be borne in mind that the statement of reasons required by Article 296 TFEU is an essential procedural requirement (judgment of 18 June 2015, Ipatau v Council, C‑535/14 P, EU:C:2015:407, paragraph 37) and that it must be appropriate to the measure at issue and disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review. Accordingly, the requirements to be satisfied by the statement of reasons depend on the circumstances of each 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 it 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 reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements laid down in Article 296 TFEU 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 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 63; of 22 June 2004, Portugal v Commission, C‑42/01, EU:C:2004:379, paragraph 66; and of 15 April 2008, Nuova Agricast, C‑390/06, EU:C:2008:224, paragraph 79).
163 In the present case, as regards the measure at issue, it should be pointed out that the contested decision was adopted at the end of the preliminary stage of the procedure for reviewing aid under Article 108(3) TFEU, which is intended merely to allow the Commission to form a prima facie opinion on the partial or complete compatibility of the aid concerned without opening the formal investigation procedure under Article 108(2) TFEU, which is designed to enable the Commission to be fully informed of all the facts pertaining to that aid.
164 Such a decision, which is taken within a short period of time, must simply set out the reasons why the Commission takes the view that it is not faced with serious difficulties in assessing the compatibility of the aid at issue with the internal market (judgment of 22 December 2008, Régie Networks, C‑333/07, EU:C:2008:764, paragraph 65).
165 In that respect, first, as regards the statement of reasons for the contested decision concerning the value of the competitive advantage given to Alitalia, suffice it to state that, as is apparent from paragraphs 123 to 125 above, the Commission was not required to take such an advantage into consideration for the purposes of assessing the compatibility of the measure at issue with the internal market, with the result that it was not required to mention it in the contested decision either.
166 Second, as regards the statement of reasons for the contested decision in relation to the 2017 and 2019 measures, suffice it to state that, as is apparent from paragraph 32 above, the Commission was not obliged to take those measures into consideration in its examination of the compatibility of the measure at issue with the internal market in the light of Article 107(2)(b) TFEU. Accordingly, the Commission was likewise under no obligation to provide a statement of reasons in that regard in the contested decision.
167 Similarly, the Commission did not infringe its obligation to state reasons in relation to the calculation of the damage suffered by Alitalia on the routes concerned during the period in question, as has been pointed out in paragraph 61 above.
168 Third, as regards the principle of non-discrimination and the principles of the free provision of services and freedom of establishment, it should, admittedly, be borne in mind that, according to the case-law, where the beneficiaries of the measure, on the one hand, and the excluded operators, on the other hand, are in a comparable situation, the EU institution which is the author of the act is under a duty to explain in what way the difference in treatment thus introduced is objectively justified and to give specific reasons in that regard (judgment of 15 April 2008, Nuova Agricast, C‑390/06, EU:C:2008:224, paragraph 82). However, unlike the measure concerned in the judgment of 15 April 2008, Nuova Agricast (C‑390/06, EU:C:2008:224), which was an aid scheme, the measure at issue in the present case is an individual aid measure and, consequently, the Commission was not required to provide, in the contested decision, specific reasons as regards the compatibility of that measure with those principles.
169 In any event, as regards the principle of non-discrimination, the contested decision contains information which makes it possible to understand the important role played by Alitalia in Italy’s air services and for the Italian economy and, consequently, the reasons why the Italian Republic chose that company as the sole beneficiary of the measure at issue, as is apparent from paragraphs 142 and 143 above.
170 It follows from the foregoing that the statement of reasons for the contested decision is sufficient and that, consequently, the fifth plea must be rejected as unfounded.
171 Accordingly, the action must be dismissed in its entirety, without it being necessary to rule on its admissibility.
IV. Costs
172 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those of the Commission, in accordance with the form of order sought by the latter.
173 The Italian Republic is to bear its own costs, in accordance with Article 138(1) of the Rules of Procedure.
On those grounds,
THE GENERAL COURT (Tenth Chamber)
hereby:
1. Dismisses the action;
2. Orders Ryanair DAC to bear its own costs and to pay those incurred by the European Commission;
3. Orders the Italian Republic to bear its own costs.
Kornezov | Kowalik-Bańczyk | Petrlík |
Delivered in open court in Luxembourg on 18 October 2023.
V. Di Bucci | | M. van der Woude |