Action brought on 30 November 2007 - Ryanair v Commission

(Case T-442/07)

Language of the case: English

Parties

Applicant: Ryanair Ltd (Dublin, Ireland) (represented by: E. Vahida, lawyer)

Defendant: Commission of the European Communities

Form of order sought

To declare that the Commission has failed to define its position pursuant to its obligations under the EC Treaty, including, in particular, Article 232 EC, in response to the applicant's complaints of 3 November and 13 December 2005, 16 June and 10 November 2006, and its letter of formal notice of 2 August 2007;

to order the Commission to pay the entire costs, including the costs incurred by the applicant in the proceedings even if, following the bringing of the action, the Commission takes action which in the opinion of the Court removes the need to give a decision or if the Court dismisses the application as inadmissible; and

to take such further action as the Court may deem appropriate.

Pleas in law and main arguments

By means of its application, the applicant initiated an action under Article 232 EC, claiming that the Commission has failed to define its position in connection with the complaints filed on 3 November 2005, 13 December 2005, 16 June 2006 and 10 November 2006, followed by a letter of formal notice of 2 August 2007.

It is submitted as the main plea, that the Commission has failed to conduct and conclude a diligent and impartial examination of the complaints lodged by the applicant, alleging the grant of unlawful aid in the form of advantages conferred by the Italian State to airlines Alitalia, Air One and Meridiana. Alternatively, as a subsidiary plea, the applicant submits that the Commission failed to define its position on the applicant's complaints alleging anticompetitive discrimination and, hence, an infringement of Article 82 EC.

The applicant claims that the measures that are subject to its complaint, namely, (i) payment to Alitalia of "9/11 compensation" aid, (ii) favourable conditions surrounding the transfer of Alitalia Servizi to Fintecna, (iii) the failure of the Italian State to claim payment of debts owed by Alitalia to Italian airports, (iv) public financing of Alitalia's redundancy payments, (v) rebates on fuel costs, (vi) reductions in airport charges at Italian hubs, (vii) the transfer of over 100 Alitalia employees to Meridiana and Air One and (viii) discriminatory restrictions on the operation of the applicant at regional airports including Ciampino airport, are attributable to the Italian State, constitute lost revenue to it and specifically benefit to Alitalia as well as Air one and Meridiana for some of the measures concerned. According to the applicant, these measures constitute State aid, fulfilling all conditions set out in Article 87(1) EC.

Alternatively, as a subsidiary plea, the applicant submits that the failure of Italian airports to obtain payment of debts owed by Alitalia, the reductions in airport charges at Italian hubs, the rebates on fuel costs and the discriminatory restrictions on the operation of the applicant at regional airports constitute an infringement of competition law. Accordingly, the applicant contends that, in the event that the Court found that some of the advantages conferred to Alitalia, Air One and Meridiana were not attributable to the State, because Italian airports and fuel providers that have granted the above advantages would have been acting in an autonomous manner, such advantages would amount to anticompetitive discrimination which cannot be justified by objective reasons and hence, infringe Article 82 EC.

Moreover, the applicant contends that it has a legitimate interest to bring such a complaint both as a customer of airport services and aviation fuel and as a competitor of Alitalia, Air One and Meridiana.

The applicant further submits that the Commission was under an obligation to act, in accordance with the provisions of Council Regulations (EC) 659/1999¹ and (EC) No 1/2003² and Commission Regulation (EC) No 773/2004³. The Commission did not however take any action upon receipt of the complaints, nor did it take position upon receipt of its letter of formal notice.

As a result, the applicant claims that a prima facie infringement of competition law existed and that the unreasonable long period of 9 to 21 months which elapsed, depending on the subject-matter of the complaint, between the Commission's receipt of the letter of formal notice and the Commission's inaction constitutes failure to act within the meaning of Article 232 EC.

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¹ - Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ L 83, p. 1)

² - Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (Text with EEA relevance) (OJ L 1, p. 1)

³ - Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (Text with EEA relevance) (OJ L 123, p. 18)