Appeal brought on 17 April 2023 by the European Commission against the judgment of the General Court (Eighth Chamber, Extended Composition) delivered on 8 February 2023 in Case T-522/20, Carpatair v Commission

(Case C-244/23 P)

Language of the case: English

Parties

Appellant: European Commission (represented by: I. Georgiopoulos, F. Tomat, Agents)

Other parties to the proceedings: Carpatair SA, Wizz Air Hungary Légiközlekedési Zrt. (Wizz Air Hungary Zrt.), Societatea Naţională "Aeroportul Internaţional Timişoara - Traian Vuia" SA (AITTV)

Form of order sought

The Appellant claims that the Court should:

set aside the judgment of the General Court (Eighth Chamber, Extended Composition) of 8 February 2023 in case T-522/20, Carpatair v Commission, in so far as it upheld the second plea in law in that case and found that the Commission erred in law by concluding that the agreements concluded in 2008 and 2010 between Societatea Națională “Aeroportul Internaţional Timişoara – Traian Vuia” SA (AITTV) and Wizz Air Hungary Légiközlekedési Zrt. (Wizz Air Hungary Zrt.) did not confer an advantage on Wizz Air;

reject the second plea in law in Case T-522/20, and

order Carpatair SA to pay the costs of both proceedings.

Pleas in law and main arguments

By the judgment under appeal, the General Court annulled Article 2 of Commission Decision (EU) 2021/1428¹ of 24 February 2020 on the State Aid SA.31662 – C/2011 (ex NN/2011) implemented by Romania for Timișoara International Airport – Wizz Air in so far as it concluded that the airport charges in the Aeronautical Information Publication of 2010 and the agreements concluded between Societatea Naţională ‘Aeroportul Internaţional Timişoara – Traian Vuia’ SA (AITTV) and Wizz Air Hungary Légiközlekedési Zrt. (Wizz Air Hungary Zrt.) in 2008 (including the 2010 amendment agreements) do not constitute State aid.

The Commission puts forward a single ground in support of its appeal against the judgment.

Ground of appeal: In paragraphs 179 to 201 of the judgment under appeal, the General Court erred in law in the interpretation of Article 107(1) TFEU, failed to state reasons due to an inadequate and contradictory reasoning, misrepresented and misinterpreted the Decision. This ground of appeal is divided into five parts:

− First part: In paragraphs 186 to 192 of the judgment under appeal, the General Court erred in law in the interpretation of Article 107(1) TFEU, in particular regarding the application of the market economy operator principle. The General Court erred in law by considering that the absence of a prior evaluation is per se a decisive element for the application of that principle.

− Second part: In paragraphs 186 to 192 of the judgment under appeal, the General Court erred in law in the interpretation of Article 107(1) TFEU, in particular regarding the application of the market economy operator principle, by rejecting the relevance of ex ante profitability analyses reconstructed ex post based on data available and developments foreseeable at the time when the decision to adopt a measure was taken.

− Third part: In paragraphs 179 to 185 of the judgment under appeal, the General Court erred in law in the interpretation of Article 107(1) TFEU, in particular regarding the application of the market economy operator principle and the type of evidence required for the application of that principle. Moreover, in paragraphs 182 and 184 of the judgment under appeal, the General Court failed to state reasons due to inadequate and contradictory reasoning.

− Fourth part: In paragraphs 186 to 192 of the judgment under appeal, the General Court erred in law in the interpretation of Article 107(1) TFEU, in particular regarding the application of the market economy operator principle and the relevance of factors arising after a measure has been taken. The General Court failed to distinguish between factors arising after a measure has been adopted and economic studies and analyses that have been carried out after the adoption of that measure but are based on information available and developments foreseeable at the time when the decision to proceed with the measure was taken. Moreover, in paragraphs 196 and 197 of the judgment under appeal, the General Court misrepresented and misinterpreted Commission Decision (EU) 2021/1428 of 24 February 2020 on the State Aid SA.31662.

− Fifth part: In paragraphs 193 and 195 of the judgment under appeal, the General Court erred in law in the interpretation of Article 107(1) TFEU, failed to state reasons due to inadequate and contradictory reasoning, misrepresented and misinterpreted Commission Decision (EU) 2021/1428 of 24 February 2020 on the State Aid SA.31662.

Finally, the General Court impermissibly extended the conclusions drawn in relation to the 2008 agreements to the 2010 amendment agreements. The findings in paragraphs 170 to 198 of the judgment under appeal concern exclusively the 2008 agreements. However, paragraph 199 and point 1 of the operative part of that judgment refer also to the 2010 amendment agreements; those references are not supported by the findings contained in the contested judgment. Therefore, the contested judgment is vitiated by a failure to state reasons.

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¹ OJ 2021, L 308, p. 1.