Case T‑461/12

(publication by extracts)

Hansestadt Lübeck

v

European Commission

(State aid — Airport charges — Lübeck Airport — Decision to initiate the procedure laid down in Article 108(2) TFEU — Article 107(1) TFEU — Manifest error of assessment — Article 10 of Regulation (EC) No 659/1999)

Summary — Judgment of the General Court (Third Chamber), 9 September 2014

State aid — Concept — Selective nature of the measure — Rules relating to the charges of a certain airport — Rules applying only to airlines using that airport — Insufficient criterion for concluding that those rules selective

(Art. 107 TFEU)

The selective application of a State measure constitutes one of the characteristics of State aid within the meaning of Article 107(1) TFEU. That article prohibits aid ‘favouring certain undertakings or the production of certain goods’, that is to say selective aid. Thus, advantages resulting from a general measure applicable without distinction to all economic operators do not constitute State aid within the meaning of that article.

In order to determine whether a measure is selective, it is appropriate to examine whether, within the context of a particular legal system, that measure constitutes an advantage for certain undertakings in comparison with others which are in a comparable legal and factual situation.

However, the concept of State aid does not refer to State measures which differentiate between undertakings and which are, therefore, prima facie selective, where that differentiation arises from the nature or the overall structure of the system of which they form part.

In that regard, in order to assess the potentially selective nature of a fee scale drawn up by a public entity for the use of a product or service in a given sector in relation to certain undertakings, it is necessary, in particular, to refer to all of the undertakings using or able to use that specific product or service and to examine whether only some of them obtain or are able to obtain a potential advantage. The situation of undertakings which do not want to or cannot use the product or service in question is therefore not directly relevant when assessing the existence of an advantage. In other words, the selective nature of a measure consisting of a fee scale drawn up by a public entity for the use of a product or service made available by that entity may be assessed only in relation to current or potential customers of that entity and of the specific product or service in question, and not, in particular, in relation to customers of other undertakings from that sector providing similar products and services. Furthermore, even if it were to be considered that every non-discriminatory fee scale implemented by a public entity in consideration of a given product or service has a selective character, that would, essentially, have the effect of excessively extending the notion of aid ‘favouring certain undertakings or the production of certain goods’ referred to in Article 107(1) TFEU. In addition, in order for a potential advantage, conferred by a public entity in the context of the provision of specific products or services, to favour certain undertakings, it is necessary that the undertakings using or wishing to use that product or that service do not or cannot obtain that advantage from that entity in that particular context.

Therefore, in the context of an annulment action against a Commission decision to open the formal investigation procedure under Article 108(2) TFEU in respect of various measures concerning a certain airport, including, in particular, the rules concerning that airport’s charges, the mere fact that those rules apply only to airlines using that airport is not a relevant criterion for finding that those rules are selective.

(see paras 44-46, 53, 54)