Ryanair v Commission (Appeal - State aid - Finnish air-transport market - Judgment) [2024] EUECJ C-353/21P (30 May 2024)

BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

(Appeal - State aid - Article 107(3)(b) TFEU - Finnish air-transport market - Aid granted by the Republic of Finland to an airline amid the COVID-19 pandemic - Temporary Framework for State aid measures - State guarantee for a loan - Decision by the European Commission not to raise objections - Aid intended to remedy a serious disturbance in the economy - Principles of proportionality and of non-discrimination - Freedom of establishment and freedom to provide services)

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 4 June 2021,

Ryanair DAC, established in Swords (Ireland), represented initially by V. Blanc, F.-C. Laprévote, E. Vahida, avocats, D. Pérez de Lamo, S. Rating, abogados, and I.-G. Metaxas-Maranghidis, dikigoros, and subsequently by F.-C. Laprévote, E. Vahida, avocats, D. Pérez de Lamo, S. Rating, abogados, and I.-G. Metaxas-Maranghidis, dikigoros,

European Commission, represented by L. Flynn, S. Noë and F. Tomat, acting as Agents,

French Republic, represented initially by A.-L. Desjonquères, P. Dodeller, A. Ferrand, T. Stéhelin and N. Vincent, and subsequently by A.-L. Desjonquères, T. Stéhelin and N. Vincent, and finally by A.-L. Desjonquères and T. Stéhelin, acting as Agents,

Republic of Finland, represented by A. Laine and H. Leppo, acting as Agents,

composed of C. Lycourgos, President of the Chamber, O. Spineanu-Matei, J.-C. Bonichot, S. Rodin (Rapporteur) and L.S. Rossi, Judges,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

1 By its appeal, Ryanair DAC seeks to have set aside the judgment of the General Court of the European Union of 14 April 2021, Ryanair v Commission (Finnair I; COVID-19) (T‑388/20, ‘the judgment under appeal’, EU:T:2021:196), by which the General Court dismissed its action for annulment of Commission Decision C(2020) 3387 final of 18 May 2020 on State aid SA.56809 (2020/N) - Finland - COVID-19: State loan guarantee for Finnair (OJ 2020 C 269, p. 2, ‘the decision at issue’).

2 The background to the dispute, as set out in the judgment under appeal, may be summarised as follows.

3 On 13 May 2020, the Republic of Finland notified the European Commission, in accordance with Article 108(3) TFEU, of an aid measure in the form of a State guarantee on a loan for Finnair Plc (‘the measure at issue’).

4 The measure at issue is designed to help Finnair obtain a loan of EUR 600 million from a pension fund to cover its working capital needs. The State guarantee covered 90% of the loan and was limited to a maximum duration of three years. The remaining 10% of the loan was covered by a commercial bank under market conditions. That guarantee was intended to be triggered only in the event of Finnair’s default with regard to the pension fund.

5 On 18 May 2020, the Commission adopted the decision at issue, by which, after concluding that the measure at issue constituted State aid within the meaning of Article 107(1) TFEU, it assessed its compatibility with the internal market in the light of its communication of 19 March 2020 entitled ‘Temporary Framework for State aid measures to support the economy in the current COVID-19 outbreak’ (OJ 2020 C 91 I, p. 1), as amended by its communication of 3 April 2020 (OJ 2020 C 112 I, p. 1) (‘the Temporary Framework’).

6 In that respect, the Commission considered, first, that the scenario presented by the Finnish authorities concerning the liquidity shortage which Finnair was going to face was realistic. Next, it noted that Finnair had attempted to obtain financing on the credit markets, but had not been able to cover all its liquidity needs. In particular, on 29 April 2020, Finnair announced that its board of directors had decided to prepare for a rights offering in the form of a share issue, due to losses caused by the COVID-19 outbreak which had decreased the company’s equity. In particular, the Commission noted in recitals 40 to 44 of the decision at issue that, at the time that decision was adopted, the amount of the share issue was approximately EUR 500 million and that it was uncertain whether that transaction would be successful. It concluded in recitals 45 to 52 of that decision that, in view of Finnair’s importance for the Finnish economy, the measure at issue was necessary, appropriate and proportionate to remedy a serious disturbance in the economy of that Member State. Finally, in recital 53 of the decision at issue, it ascertained whether the measure at issue fulfilled all the relevant conditions of the Temporary Framework and found that that was the case.

7 The Commission thus concluded that the measure at issue was compatible with the internal market pursuant to Article 107(3)(b) TFEU and therefore did not raise any objections to it.

8 By application lodged at the Registry of the General Court on 26 June 2020, Ryanair brought an action for annulment of the decision at issue.

9 In support of its action, Ryanair put forward four pleas in law, alleging, first, infringement of Article 107(3)(b) TFEU; second, infringement of the principles of non-discrimination on grounds of nationality, freedom to provide services and freedom of establishment; third, infringement of its procedural rights as a result of the refusal to initiate the formal investigation procedure despite the existence of serious doubts as to the compatibility of the measure at issue with the internal market and, fourth, infringement of the second paragraph of Article 296 TFEU.

10 By the judgment under appeal, the General Court rejected as unfounded the first, second and fourth pleas in law raised by Ryanair. As regards the third plea, it held, in particular in view of the grounds which had led to the rejection of the first two pleas in the action, that it was not necessary to examine its merits. Consequently, the General Court dismissed the action in its entirety, without ruling on its admissibility.

- order the Commission and the interveners at first instance to pay the costs or, in the alternative,

13 The French Republic and the Republic of Finland contend that the Court should dismiss the appeal.

14 Ryanair relies on five grounds in support of its appeal. The first ground of appeal alleges an error of law and a manifest distortion of the facts in that the General Court rejected the plea in law alleging an infringement of Article 107(3)(b) TFEU. The second ground alleges an error of law in that the General Court wrongly rejected the plea alleging an infringement of the principle of non-discrimination. The third ground alleges an error of law and a manifest distortion of the facts in the examination of Ryanair’s argument relating to the infringement of the freedom of establishment and the freedom to provide services. The fourth ground of appeal alleges an error of law and a manifest distortion of the facts committed by the General Court in deciding not to examine the substance of the third plea alleging infringement of Ryanair’s procedural rights. The fifth ground of appeal alleges an error of law and a manifest distortion of the facts in that the General Court dismissed the fourth plea relating to an infringement of the Commission’s obligation to state reasons under the second paragraph of Article 296 TFEU.

15 By its first ground of appeal, which concerns paragraphs 31 to 64 of the judgment under appeal and consists of two limbs, Ryanair submits, in essence, that the General Court erred in law and manifestly distorted the facts in that it wrongly rejected the first limb of the first plea in law, alleging infringement of Article 107(3)(b) TFEU, by holding, first, that the measure at issue was appropriate to remedy a serious disturbance in the Finnish economy and, second, that the Commission was not required to weigh the beneficial effects of that measure against its adverse effects.

16 By the first limb of its first ground of appeal, Ryanair submits, first, that although the General Court correctly recognised, in paragraphs 32 and 33 of the judgment under appeal, that Article 107(3)(b) TFEU must, as a derogating provision, be interpreted strictly, it wrongly held in paragraph 41 of that judgment that that provision did not require the measure at issue to be capable in itself of remedying the serious disturbance in the economy of the Member State concerned. Such an interpretation would lead to any company being entitled to an individual aid measure under Article 107(3)(b) TFEU, provided that a serious disturbance in the economy is identified.

17 According to Ryanair, the General Court thus departed from the strict interpretation required by that provision in order to hold, in essence, in paragraphs 40 to 42 and 56 of the judgment under appeal, that it was sufficient that aid contributes to remedying the serious disturbance in the economy concerned in order to fall within the scope of that provision.

18 Second, by appropriating, in paragraphs 31 to 64 of the judgment under appeal, the Commission’s findings as regards Finnair’s importance for the Finnish economy, the General Court committed an error of law, manifestly distorted the facts and failed to exercise its power of review over the decision at issue.

19 On a number of points, the General Court merely considered the Commission’s analysis to be satisfactory and reproduced it in its judgment without examining its merits. It did not verify whether the evidence available to the Commission included all the relevant information and was capable of substantiating its conclusion as to Finnair’s importance for the Finnish economy. In addition, the judgment under appeal is vitiated by an error of law in that it systematically imposes the burden of proof on the applicant, whereas it was for the Commission to demonstrate the compatibility of the measure at issue with the internal market.

20 By the second limb of its first ground of appeal, Ryanair submits that the General Court erred in law by holding, in paragraphs 66 and 67 of the judgment under appeal, that the Commission is not required under Article 107(3)(b) TFEU, when examining the compatibility of aid, to weigh the beneficial effects of that aid against its adverse effects on trading conditions and the maintenance of undistorted competition.

21 In that regard, Ryanair submits that the General Court adopted an excessively broad interpretation of the judgment of 22 September 2020, Austria v Commission (C‑594/18 P, EU:C:2020:742, paragraphs 20 and 39) in order to hold that the condition that the aid must not unduly affect trading conditions applies to the aid referred to in Article 107(3)(c) TFEU, but not to the aid referred to in Article 107(3)(b). First, Article 107(3)(c) TFEU, which that judgment applied, refers only to the effect of the aid on trading conditions, and not to the protection of undistorted competition which, as the General Court accepted, must also be taken into account in the weighing up of the beneficial and adverse effects of the aid. Second, in the case giving rise to that judgment, the Court of Justice did not examine Article 107(3)(b) TFEU in depth. Third, the obligation to weigh the beneficial effects of the aid against its adverse effects on trading conditions and the maintenance of undistorted competition is also apparent from principles that apply generally to all aid under Article 107(3) TFEU.

22 It is precisely for that reason that both the Court of Justice, in the judgment of 19 July 2016, Kotnik and Others (C‑526/14, EU:C:2016:570, paragraphs 54, 57 and 58), and the General Court, in the judgment of 6 July 1995, AITEC and Others v Commission (T‑447/93 to T‑449/93, EU:T:1995:130, paragraphs 138 to 143), held that the Commission could make aid granted under Article 107(3)(b) TFEU subject to certain conditions. It would not be possible for the Commission to impose such conditions if there were no need to weigh up the positive and negative effects of the aid.

23 Furthermore, contrary to what the General Court held in paragraph 66 of the judgment under appeal, the existence of a serious disturbance in the economy of a Member State should not give rise to a presumption that the beneficial effects of aid outweigh its adverse effects; on the contrary, it warrants particular vigilance in the weighing up of those effects for the purposes of assessing the compatibility of that aid with the internal market. Furthermore, first, contrary to what the General Court held in paragraph 68 of that judgment, paragraph 10 of the Temporary Framework contains a specific obligation for the Commission as regards such a balancing exercise. Second, in paragraph 74 of that judgment, the General Court distorted the facts by stating that the Commission envisaged the effects of the aid on competition and trade within the European Union as part of the assessment of the compatibility of that aid with the internal market.

24 The Commission, the Kingdom of Spain, the French Republic and the Republic of Finland submit that the first ground of appeal must be rejected as unfounded.

25 As a preliminary point, it should be recalled that, by the decision at issue, the measure at issue was declared compatible with the internal market under Article 107(3)(b) TFEU, which provides that aid ‘to remedy a serious disturbance in the economy of a Member State’ may be considered compatible with the internal market.

26 By the first limb of its first ground of appeal, Ryanair submits, in the first place, that the General Court erred in law in finding, in paragraph 41 of the judgment under appeal, that that provision did not require that the measure at issue be capable, in itself, of remedying the serious disturbance in the economy of the Member State concerned.

27 In that regard, although the derogation from the principle that State aid is incompatible with the internal market, provided for in Article 107(3)(b) TFEU, must be interpreted strictly, the terms used to define that derogation must not, however, be construed in such a way as to restrict its scope unduly or to deprive it of its effects. A derogation must be interpreted in a manner consistent with the objectives which it pursues (judgment of 23 November 2023, Ryanair v Commission, C‑209/21 P, EU:C:2023:905, paragraph 88 and the case-law cited).

28 It is in no way apparent from the wording of Article 107(3)(b) TFEU, read in the light of the objective of that provision, which is to allow Member States to remedy a serious disturbance in their economy, that aid may only be declared compatible with the internal market on the basis of that provision if it ensures, in itself, that the serious disturbance in the economy of a Member State is remedied. Aid may, as appropriate, be intended to remedy such a serious disturbance in the economy and contribute to achieving the objective expressly referred to in that provision without, however, being sufficient in itself to attain that objective.

29 In that regard, the Court of Justice has already held that, in order to be able to be declared compatible with the internal market pursuant to a derogation under Article 107(2) TFEU, an aid measure, inter alia, must only contribute to the attainment of an objective set out therein (see, to that effect, judgment of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 27).

30 Moreover, the interpretation of Article 107(3)(b) TFEU suggested by Ryanair would deprive that provision of much of its effectiveness. If, in order to be able to seek to apply that provision, the Member States were required to grant aid to all undertakings of particular importance to their economy, in such a way that that aid alone guarantees that the serious disturbance in the economy is remedied, without being able to reserve that aid to a limited number of those undertakings, or even just one, those Member States would often be deterred from granting aid under Article 107(3)(b) TFEU, because of the costs it would involve (see, by analogy, judgment of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 25).

31 It follows that the objective pursued by Article 107(3)(b) TFEU does not mean that a Member State cannot, without that being dictated by a desire to favour one undertaking over its competitors, choose, for objective reasons, to grant only a single undertaking the benefit of a measure adopted under that provision (see, by analogy, judgment of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 24).

32 It follows from the foregoing that the General Court did not err in law in finding, in particular in paragraph 41 of the judgment under appeal, that Article 107(3)(b) TFEU does not require that the aid at issue be capable, in itself, of remedying the serious disturbance in the economy of the Member State concerned and that State aid may be authorised under that provision, in the form of aid schemes or individual aid, provided that all the conditions for its application are met, if they contribute to remedying that serious disturbance in the economy.

33 In the second place, by that second limb, to the extent that Ryanair alleges that the General Court distorted the facts submitted to it when it examined the assessment that gave rise to the decision at issue, according to which the measure at issue was, in view of Finnair’s importance for the Finnish economy, appropriate to remedy a serious disturbance in that economy, it should be pointed out that, in accordance with settled case-law, it follows from the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that the General Court has exclusive jurisdiction, first, to establish the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and, second, to assess those facts (judgment of 25 June 2020, SatCen v KF, C‑14/19 P, EU:C:2020:492, paragraph 103 and the case-law cited).

34 It follows that the appraisal of the facts by the General Court does not constitute, save where the clear sense of the evidence produced before it is distorted, a question of law which is subject, as such, to review by the Court of Justice (judgment of 25 June 2020, SatCen v KF, C‑14/19 P, EU:C:2020:492, paragraph 104 and the case-law cited).

35 Where an appellant alleges distortion of the evidence by the General Court, that person must, under Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of the Rules of Procedure of the Court of Justice, indicate precisely the evidence alleged to have been distorted by the General Court and show the errors of appraisal which, in that person’s view, led to such distortion. In addition, according to the settled case-law of the Court of Justice, that distortion must be obvious from the documents in the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (judgment of 25 June 2020, SatCen v KF, C‑14/19 P, EU:C:2020:492, paragraph 105 and the case-law cited).

36 In the present case, in the second complaint in the first limb of its first ground of appeal, Ryanair complains, in essence, that the General Court endorsed the Commission’s analysis and failed to verify whether the evidence available to the Commission supported the conclusion which it reached. It must be stated that Ryanair merely makes assertions that do not demonstrate that the General Court committed any distortion in its assessment in order to reach, on the basis of a detailed examination of the decision at issue in that regard, in paragraphs 31 to 64 of the judgment under appeal, the conclusion that, owing in particular to Finnair’s importance for the Finnish economy, the measure at issue was appropriate to remedy the serious disturbance in that economy caused by the COVID-19 pandemic.

37 In so far as Ryanair maintains, moreover, that the General Court thereby reversed the burden of proof which, in its view, should have rested with the Commission, it should be borne in mind that it is in principle for the person who alleges facts in support of a claim or argument to provide proof of their reality (see, to that effect, judgment of 26 June 2001, Brunnhofer, C‑381/99, EU:C:2001:358, paragraph 52, and order of the President of the Court of Justice of 25 January 2008, Provincia di Ascoli Piceno and Comune di Monte Urano v Apache Footwear and Others, C‑464/07 P(I), EU:C:2008:49, paragraph 9).

39 By the second limb of the first ground of appeal, Ryanair maintains in essence that the General Court, in paragraphs 66 and 67 of the judgment under appeal, erred in law in finding that the Commission was not obliged by Article 107(3)(b) TFEU to weigh the beneficial effects of the measure at issue against its adverse effects on trading conditions and the maintenance of undistorted competition.

40 In that regard, it should be noted that, in paragraph 20 of the judgment of 22 September 2020, Austria v Commission (C‑594/18 P, EU:C:2020:742), the Court of Justice highlighted the differences between the wording of Article 107(3)(b) TFEU and Article 107(3)(c) TFEU, and noted, in particular, that only the first of those provisions laid down the condition that the aid at issue must pursue an objective of common interest. The Court concluded from this that Article 107(3)(c) TFEU did not make the compatibility of aid subject to such a condition.

41 For a similar reason based on a comparison of the wording of the provisions concerned, as the General Court held, in essence, in paragraph 65 of the judgment under appeal, in the absence of any reference in Article 107(3)(b) TFEU to demonstrating that there was no effect on trading conditions to an extent contrary to the common interest and, therefore, to the need to weigh up the beneficial effects and the adverse effects of the aid, that provision cannot be interpreted, unlike Article 107(3)(c) TFEU, as requiring the Commission to carry out such a balancing exercise for the purposes of assessing the compatibility of the measure at issue with the internal market (see, to that effect, judgment of 23 November 2023, Ryanair v Commission, C‑209/21 P, EU:C:2023:905, paragraph 85).

42 That difference in the assessment of the compatibility with the internal market of the aid referred to in Article 107(3)(b) TFEU and the aid referred to in Article 107(3)(c) TFEU can be explained by the particular nature of the aid referred to in Article 107(3)(b) TFEU, which pursues objectives of an exceptional nature and of particular weight consisting either in promoting the execution of an important project of common European interest or in remedying a serious disturbance in the economy of a Member State. Aid measures which contribute to one of those objectives, provided that they are necessary and proportionate, may therefore be considered to ensure a fair balance between their beneficial effects and their adverse effects on the internal market and are therefore in the common interest of the European Union (judgment of 23 November 2023, Ryanair v Commission, C‑209/21 P, EU:C:2023:905, paragraph 86).

43 Therefore, since Article 107(3)(b) TFEU reflects the balancing of the effects of State aid referred to in that provision carried out by the authors of the Treaty, the Commission is not required to carry out a new balancing of those effects when it examines the compatibility of aid which is envisaged to be granted on the basis of that provision (judgment of 23 November 2023, Ryanair v Commission, C‑209/21 P, EU:C:2023:905, paragraph 87).

44 In the light of the foregoing, the General Court did not err in law in finding that the Commission was not obliged by Article 107(3)(b) TFEU to weigh the beneficial effects of the measure at issue against its adverse effects on trading conditions and the maintenance of undistorted competition.

45 It follows from the foregoing that the second limb of the first ground of appeal must be rejected as unfounded and, consequently, that ground of appeal must be dismissed in its entirety.

46 By its second ground of appeal, which comprises four limbs, Ryanair submits, in essence, that the General Court erred in law in finding, in paragraphs 81 to 91 of the judgment under appeal, that the measure at issue did not infringe the principle of non-discrimination on grounds of nationality.

47 By the first limb of its second ground of appeal, Ryanair submits that the General Court erred in law in stating in paragraph 81 of the judgment under appeal that the discrimination was inherent in the individual character of the aid. The appellant maintains that individual aid may be non-discriminatory if its beneficiary is in a different situation from other businesses with respect to the objective pursued. In the present case, the Commission has not demonstrated that aid paid to airlines other than Finnair could not have contributed to remedying the serious disturbance in the Finnish economy. Ryanair also submits that if the principle of non-discrimination concerned only State aid schemes, as the General Court considers, Member States could evade its application by dividing their discriminatory State aid schemes into as many individual aid measures as those schemes involve beneficiaries.

48 By the second limb of that ground of appeal, Ryanair argues that the General Court failed to apply properly the principle of prohibition of any discrimination on grounds of nationality, which is an essential principle of the EU legal order. Although the General Court acknowledged, in paragraph 82 of the judgment under appeal, that the difference in treatment established by the measure at issue, in so far as it benefited only Finnair, could amount to discrimination, it wrongly held that such discrimination had to be assessed only in the light of Article 107(3)(b) TFEU, on the ground that that provision was a special provision, within the meaning of Article 18 TFEU.

49 Furthermore, the appellant submits that the General Court should have examined whether such discrimination was justified on grounds of public policy, public security or public health within the meaning of Article 52 TFEU or, in any event, whether it was based on objective considerations, irrespective of the nationality of the persons concerned.

50 By the third limb of its second ground of appeal, the appellant submits that, in paragraphs 83, 84 and 87 of the judgment under appeal, the General Court erred in law and manifestly contradicted the grounds of that judgment as regards determining the objective of the measure at issue. In particular, it wrongly considered that that objective consisted in ensuring that Finnair had sufficient liquidity to maintain its services during the COVID-19 pandemic and that it made it possible to remedy a serious disturbance in the economy of a Member State, within the meaning of Article 107(3)(b) TFEU. Furthermore, the assertion in paragraph 87 of the judgment under appeal that the measure at issue was not intended to preserve Finland’s ‘connectivity’ is contradicted by paragraphs 45 and 46 of the judgment under appeal, in which the General Court inferred from that company’s contribution to that ‘connectivity’ that it was important for the Finnish economy.

51 By the fourth limb, Ryanair submits that the General Court erred in law and manifestly distorted the facts in so far as it held, in paragraphs 85 to 91 of the judgment under appeal, that the measure at issue was necessary, appropriate and proportionate with regard to its declared objective.

52 First, as regards the necessity of the measure at issue, the General Court merely referred, in paragraph 87 of the judgment under appeal, to paragraphs 37 and 39 of that judgment, which describe the economic difficulties faced by Finnair and the alleged impact of its insolvency on the Finnish economy, but contain no argument as to the need for that measure to remedy the serious disturbance in that economy.

53 Second, in order to find that the measure at issue was appropriate and proportionate, the General Court merely referred, in paragraph 85 of the judgment under appeal, to the response to the first plea in law, which cannot constitute an adequate demonstration or statement of reasons.

54 In particular, the General Court made a first error of law in holding, in particular in paragraph 88 of the judgment under appeal, that the Commission was under no obligation to examine whether the Member State concerned had to extend the circle of beneficiaries of the aid. That assertion is in direct contradiction with the principle of proportionality, under which recourse must be had to the least onerous measure where there is a choice between several appropriate measures. In addition, Ryanair criticises paragraph 91 of the judgment under appeal in that neither the Commission nor the General Court demonstrated that Finnair’s survival could not be guaranteed with an amount of aid lower than what was granted to it.

55 The General Court committed a second error of law by failing to draw any conclusions from the fact that the Commission did not evaluate the competitive impact of the measure at issue for the purposes of assessing whether it was proportionate. Such an evaluation is, however, essential in order to determine whether that measure does not go ‘beyond what is necessary’ to attain its stated objective.

56 The Commission, the Kingdom of Spain, the French Republic and the Republic of Finland submit that the second ground of appeal must be rejected as unfounded.

57 It should be recalled, as a preliminary point, that, according to settled case-law, classification of a national measure as ‘State aid’ within the meaning of Article 107(1) TFEU requires all the following conditions to be fulfilled. First, there must be an intervention by the State or through State resources. Second, that intervention must be liable to affect trade between Member States. Third, it must confer a selective advantage on the recipient. Fourth, it must distort or threaten to distort competition (judgment of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 101 and the case-law cited).

58 It is therefore with regard to measures having such characteristics and such effects, in so far as they are liable to distort competition and affect trade between the Member States, that Article 107(1) TFEU lays down the principle that State aid is incompatible with the internal market.

59 In particular, the requirement of selectivity arising from Article 107(1) TFEU presupposes that, where the Commission intends to classify a given measure as State aid, it will establish that the economic advantage, understood in the broad sense, arising directly or indirectly from that measure specifically benefits one or more undertakings. It falls to the Commission to show, in particular, that the measure in question creates differences between undertakings which, with regard to the objective of the measure, are in a comparable situation. It is necessary therefore that the advantage be granted selectively and that it be liable to place certain undertakings in a more favourable situation than that of others (judgment of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 103 and the case-law cited).

60 Where, as in the present case, the measure concerned is envisaged as individual aid, the identification of the economic advantage is, in principle, sufficient to support the presumption that it is selective (judgments of 30 June 2016, Belgium v Commission, C‑270/15 P, EU:C:2016:489, paragraph 49, and of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 104).

61 As regards the first limb of the second ground of appeal, by which Ryanair challenges paragraph 81 of the judgment under appeal, it follows that the General Court did not err in law by stating in essence in that paragraph that, by its nature, individual aid introduces a difference in treatment, if not discrimination, between the undertaking receiving that aid and all other undertakings which, in the light of the objective pursued, are in a comparable situation. Furthermore, contrary to what Ryanair appears to claim, that assertion cannot be understood as meaning that the General Court considers that individual aid which, in its view, is contrary to the principle of non-discrimination is nevertheless compatible with the internal market, since it expressly stated at the end of that paragraph that EU law allows Member States to grant such aid, ‘provided that all the conditions laid down in Article 107 TFEU are met’ (see, by analogy, judgment of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 105).

62 Consequently, the first limb of the second ground of appeal must be rejected as unfounded.

63 More particularly, as regards the conditions laid down in Article 107 TFEU, it provides, in paragraphs (2) and (3), for certain derogations from the principle that State aid is incompatible with the internal market, referred to in paragraph 58 above, such as the one set out in Article 107(3)(b) TFEU concerning aid ‘to remedy a serious disturbance in the economy of a Member State’. Accordingly, State aid granted for the purposes of, and in accordance with, the conditions laid down by those derogating provisions, notwithstanding the fact that it has the characteristics and produces the effects referred to in paragraph 57 above, is compatible with, or is capable of being declared compatible with, the internal market.

64 It follows that, unless those derogating provisions are to be deprived of all practical effect, State aid which is granted in accordance with those requirements, that is to say, for the purposes of an objective recognised therein and within the limits of what is necessary and proportionate to the achievement of that objective, cannot be held to be incompatible with the internal market having regard solely to the characteristics or effects, referred to in paragraph 57 above, which are inherent in any State aid, that is to say, inter alia, for reasons relating to whether the aid is selective or distorts competition (judgments of 22 March 1977, Iannelli & Volpi, 74/76, EU:C:1977:51, paragraphs 14 and 15, and of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 107).

65 That said, as regards the second limb of the second ground of appeal, by which Ryanair claims that the General Court erred in law in not applying, in paragraph 82 of the judgment under appeal, the principle of non-discrimination on grounds of nationality laid down in Article 18 TFEU, but examined the measure at issue in the light of Article 107(3)(b) TFEU, it should be recalled that it is clear from the case-law of the Court of Justice that the procedure provided for in Article 108 TFEU must never produce a result that is contrary to the specific provisions of the FEU Treaty. Accordingly, State aid which, as such or by reason of some modalities thereof, contravenes provisions or general principles of EU law cannot be declared compatible with the internal market (judgments of 31 January 2023, Commission v Braesch and Others, C‑284/21 P, EU:C:2023:58, paragraph 96, and of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 109).

66 However, as regards Article 18 TFEU specifically, it is settled case-law that that article is intended to apply independently only to situations governed by EU law in respect of which the FEU Treaty lays down no specific prohibition of discrimination (judgments of 18 July 2017, Erzberger, C‑566/15, EU:C:2017:562, paragraph 25, and of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 110).

67 Since, as has been recalled in paragraph 63 above, Article 107(2) and (3) TFEU provides for derogations from the principle, referred to in paragraph 1 of that article, that State aid is incompatible with the internal market, and thus allows, in particular, differences in treatment between undertakings, subject to fulfilment of the requirements laid down by those derogations, those derogations must be regarded as ‘special provisions’ provided for in the Treaties, within the meaning of the first paragraph of Article 18 TFEU (judgment of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 111).

68 It follows that the General Court did not err in law in finding, in paragraph 82 of the judgment under appeal, that Article 107(3)(b) TFEU constituted such a specific provision and that it was necessary only to examine whether the difference in treatment brought about by the measure at issue was permitted under that provision.

69 It follows that the difference in treatment entailed by the measure at issue likewise does not have to be justified on the grounds set out in Article 52 TFEU, contrary to what Ryanair maintains.

70 In the light of the foregoing, the second limb of the second ground of appeal must be rejected as unfounded.

71 By the third limb of that ground of appeal, Ryanair submits, in essence, that the General Court, in paragraphs 83, 84 and 87 of the judgment under appeal, incorrectly identified the objective of the measure at issue, as set out in the decision at issue, and that it wrongly considered that that objective consisted in ensuring that Finnair had enough liquidity to maintain its services during the COVID-19 pandemic.

72 In that regard, the General Court, in essence, in paragraphs 83 and 84 of the judgment under appeal, referring to paragraphs 36 and 38 of that judgment, stated that the objective of the measure at issue was, in accordance with Article 107(3)(b) TFEU, to remedy the serious disturbance in the Finnish economy caused by the COVID-19 pandemic by ensuring that Finnair had sufficient liquidity to maintain its viability and its air services and by preventing its possible insolvency from further disrupting that economy.

73 It is apparent from the decision at issue, in particular from recitals 3, 4 and 39, cited in paragraphs 37 and 38 of the judgment under appeal, that that description of the objective pursued by that measure is consistent with the one set out by the Commission in that decision. Furthermore, contrary to what Ryanair claims, the General Court’s statement in paragraph 87 of the judgment under appeal that that objective was not to preserve Finland’s ‘connectivity’ is not in itself contradicted by the fact that the General Court took into account, in paragraphs 45 and 46 of the judgment under appeal, Finnair’s contribution to that connectivity as one of the factors demonstrating the importance of that airline for the Finnish economy.

74 Consequently, the third limb of the second ground of appeal must be rejected as unfounded.

75 In so far as, by the fourth limb of that ground of appeal, Ryanair complains that the General Court, first, as a whole, failed to rule adequately, in paragraphs 85 and 87 of the judgment under appeal, on the appropriateness and necessity of the measure at issue in order to attain the objective of remedying the serious disturbance in the Finnish economy, suffice it to state that, by referring in those paragraphs to the detailed examination which it had carried out of the first plea in law and, in particular, to the matters which had been set out, inter alia, in paragraphs 37 and 39 of the judgment under appeal, the General Court disclosed to the requisite legal standard the reasons why it considered that the measure at issue was appropriate and necessary in order to attain its objective.

76 As regards, next, more specifically, the complaint alleging an error of law in that the General Court, in paragraph 88 of the judgment under appeal, wrongly held that the Commission was under no obligation to examine whether the Republic of Finland should have extended the circle of beneficiaries of the measure at issue beyond Finnair, it follows from the examination of the first limb of the first ground of appeal, in particular from paragraph 30 above, that, even if the grant of the measure at issue to other undertakings could have contributed to the attainment of the objective laid down in Article 107(3)(b) TFEU, that Member State was entitled to limit the benefit of that aid to a single undertaking.

77 More particularly, it follows from the case-law of the Court of Justice that aid granted under a derogation provided for in Article 107(2) and (3) cannot be held to be disproportionate, and thus incompatible with the internal market, merely because it benefits a single undertaking (see, to that effect, judgments of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraphs 31, 34, 78 and 136, and of 28 September 2023, Ryanair v Commission, C‑321/21 P, EU:C:2023:713, paragraph 66).

78 It follows that, by holding in paragraph 88 of the judgment under appeal that the Commission was not required to examine, in order to assess the proportionality of the measure at issue, whether the circle of beneficiaries of that measure should have been extended beyond Finnair, the General Court did not err in law. In addition, in paragraph 91 of the judgment under appeal, the General Court, referring to the detailed considerations which it set out in the examination of the first limb of the first plea in the action at first instance, in particular in paragraphs 57 to 59 of that judgment, correctly applied the proportionality test in that it examined whether the grant of the State guarantee only to Finnair did not exceed the limits of what was appropriate and necessary in order to attain the legitimate objectives pursued by the Republic of Finland. Thus, the General Court cannot be criticised for a failure to assess properly whether Finnair’s survival could not be guaranteed with an amount of aid lower than that which was granted to it.

79 In so far as, in the context of that fourth limb, Ryanair lastly complains that the General Court did not draw any conclusion from the fact that the Commission had not evaluated the impact of the measure at issue on competition in the light of the proportionality test, it must be held that that complaint closely resembles the line of argument put forward in the second limb of the first ground of appeal, alleging that the Commission should have weighed the beneficial effects of that measure against its adverse effects on trading conditions and on the maintenance of undistorted competition, and must therefore be rejected for the reasons set out in paragraphs 40 to 43 above.

80 In the light of the foregoing, the fourth limb of the second ground of appeal must be rejected and, consequently, that ground of appeal must be dismissed in its entirety.

81 By its third ground of appeal, Ryanair submits that, in paragraphs 101 to 103 of the judgment under appeal, the General Court erred in law and manifestly distorted the facts by rejecting the second limb of the second plea in its action at first instance, by which it alleged infringement of the principles of the freedom to provide services and freedom of establishment.

82 By the first limb of the third ground of appeal, Ryanair argues that, by stating in paragraph 101 of the judgment under appeal that it had not demonstrated how the exclusive nature of the measure at issue, which benefited only Finnair, was ‘such as to deter it from providing services from Finland and to Finland, or from exercising its freedom of establishment in that Member State’, the General Court applied the wrong test for determining whether that measure impeded or rendered less attractive the exercise of the freedom to provide services or the freedom of establishment. In accordance with the case-law, the General Court should have examined whether the measure at issue was such as to discourage ‘any of the operators who are impacted by [that] measure’, and therefore, in the present case, one of the airlines, other than Finnair, operating in Finland, from establishing itself or providing services in that Member State.

83 By the second limb of that ground of appeal, Ryanair submits that, in its action at first instance, it demonstrated to the requisite legal standard, in accordance with the relevant criterion, that the measure at issue placed at a disadvantage, in practice, only air carriers whose registered office was in a Member State other than the Republic of Finland. It provided ample evidence of the restrictive effect of that measure on the freedom to provide services. By failing to examine them, the General Court erred in law and distorted the evidence.

84 By the third limb of that ground of appeal, Ryanair submits that, contrary to what the General Court held in paragraph 101 of the judgment under appeal, it demonstrated that the restriction on the freedom to provide services and the freedom of establishment was not justified. In that regard, the General Court erred in law in holding that an aid measure restricting the freedom to provide services was justified when it complied with Article 107 TFEU. In Ryanair’s submission, the General Court and, before it, the Commission should have examined whether the restriction on the freedom to provide services arising from the measure at issue was justified by an overriding reason in the public interest, which was non-discriminatory, necessary and proportionate in relation to the public interest objective pursued. Ryanair identified elements of fact and law showing that that measure had restrictive effects on the freedom to provide services that were unnecessary, inappropriate and disproportionate in light of the stated objective of that measure, namely remedying a serious disturbance caused in the Finnish economy. Moreover, it proposed, in that context, an alternative eligibility criterion for the aid, based on market shares, which would have been less harmful to the freedom to provide services and freedom of establishment. The General Court, by ‘denying this reality’, erred in law and manifestly distorted the facts.

85 The Commission, the Kingdom of Spain, the French Republic and the Republic of Finland submit that the third ground of appeal must be rejected as unfounded.

86 In so far as, by the first limb of the third ground of appeal, Ryanair claims that the General Court, in the first sentence of paragraph 101 of the judgment under appeal, used an incorrect test for assessing whether the measure at issue hindered or rendered less attractive the exercise of the freedom to provide services and the freedom of establishment, it must be held that that limb is based on a misreading of that paragraph. Without it being necessary to examine whether, as Ryanair claims, the General Court erred in law as regards the extent of the burden of proof which it claims to have borne, it is apparent, as the French Government rightly pointed out in its response, from the second sentence of that paragraph, which refers to paragraphs 42 to 63 and 82 to 92 of the judgment under appeal in which the General Court analysed the proportionality of the measure at issue, that the General Court examined the existence of restrictive effects in general and therefore the effects that would occur not exclusively with regard to Ryanair, but with regard to all airlines operating or wishing to operate in Finland.

88 By the second and third limbs of the third ground of appeal, which it is appropriate to examine together, Ryanair criticises the General Court, in essence, for vitiating the judgment under appeal by errors of law in paragraph 101 of the judgment under appeal, in that it examined the fact that the measure at issue benefited only Finnair, solely in the light of the criteria of Article 107 TFEU, instead of verifying whether that measure was justified in the light of the grounds referred to in the provisions of that treaty relating to the freedom to provide services or the freedom of establishment. Ryanair, however, submitted to the General Court matters of fact and of law demonstrating an infringement of those provisions.

89 In that regard, as has been pointed out in paragraph 65 above, the procedure under Article 108 TFEU must never produce a result that is contrary to the specific provisions of the Treaty. Accordingly, State aid which, as such or by reason of some modalities thereof, contravenes provisions or general principles of EU law cannot be declared compatible with the internal market.

90 However, first, the restrictive effects which an aid measure has on the freedom to provide services or the freedom of establishment still do not constitute a restriction prohibited by the Treaty, since it may be inherent in the very nature of State aid, such as its selective nature (judgment of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 132).

91 Second, it is apparent from the case-law of the Court of Justice that, where the modalities of an aid measure are so indissolubly linked to the object of the aid that it is impossible to evaluate them separately, their effect on the compatibility or incompatibility of the aid viewed as a whole with the internal market must therefore of necessity be determined by means of the procedure prescribed in Article 108 TFEU (see, to that effect, judgments of 22 March 1977, Iannelli & Volpi, 74/76, EU:C:1977:51, paragraph 14; of 31 January 2023, Commission v Braesch and Others, C‑284/21 P, EU:C:2023:58, paragraph 97, and of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 133).

92 In the present case, as is apparent from paragraphs 72 and 73 above, Finnair’s choice as a beneficiary of the measure at issue is part of the objective of that measure and, in any event, even if that choice were to be regarded as a condition of that measure, Ryanair does not dispute that such a condition is inextricably linked to that objective, which consisted in remedying the serious disturbance in the Finnish economy caused by the COVID-19 pandemic, by guaranteeing Finnair sufficient liquidity to maintain its viability and preventing its possible insolvency from aggravating that disturbance, given the importance of that company for the Finnish economy. It follows that the effect on the internal market of the choice of Finnair as a beneficiary of the measure at issue cannot be examined separately from the effect of the compatibility of that aid measure as a whole with the internal market by means of the procedure prescribed in Article 108 TFEU.

93 It follows from the reasons set out above and from the case-law referred to in paragraph 64 above that the General Court did not err in law by holding, in paragraph 101 of the judgment under appeal, in essence that, in order to establish that the measure at issue constituted, because it benefited only Finnair, an obstacle to the freedom to provide services and the freedom of establishment, the appellant should have demonstrated, in the present case, that that measure produced restrictive effects which went beyond those inherent in State aid granted in accordance with the requirements laid down in Article 107(3)(b) TFEU (see, by analogy, judgments of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 135, and of 23 November 2023, Ryanair v Commission, C‑209/21 P, EU:C:2023:905, paragraph 75).

94 The arguments advanced by Ryanair in support of the second and third limbs of the third ground of appeal, taken together, seek to criticise the choice of Finnair as the sole beneficiary of the measure at issue and the consequences of that choice, even though that choice is inherent in the selective nature of that measure.

95 In addition, as regards the evidence which it submitted before the General Court, it must be held that Ryanair has not put forward any argument capable of demonstrating that the General Court distorted that evidence.

96 It follows from the foregoing that the third ground of appeal must be dismissed.

97 By its fourth ground of appeal, Ryanair submits that, by finding, in paragraphs 107 and 108 of the judgment under appeal, that the third plea in its action at first instance, relating to the Commission’s refusal to initiate the formal investigation procedure provided for in Article 108(2) TFEU, was deprived of its stated purpose as a result of the rejection of the first two pleas in that action and lacked any content independent of those two pleas, the General Court erred in law and manifestly distorted the facts.

98 Ryanair claims that, contrary to what the General Court held, the third plea had independent content in relation to the first two pleas in the action at first instance. Judicial review of the existence of serious difficulties which should have led to the initiation of a formal investigation procedure differs from review of the error of law or manifest error of assessment made by the Commission in the substantive examination of the aid measure. The existence of serious difficulties could thus be established even though, contrary to what Ryanair maintained by its first two pleas in the action at first instance, the Commission’s examination of the measure at issue is not vitiated by either a manifest error of assessment or an error of law.

99 Similarly, the third plea in the action at first instance was not deprived of its stated purpose, since demonstrating the existence of a manifest error of assessment on the part of the Commission is completely different from demonstrating the existence of serious difficulties that should have led to the initiation of a formal investigation procedure. In addition, Ryanair raised independent arguments to that effect, demonstrating, in particular, that the Commission did not have market data relating to the structure of the aviation sector or information on the appellant’s participation in that market, which was of crucial importance for examining the compatibility of the measure at issue with the internal market in the light of the alleged objective of remedying a serious disturbance in the Finnish economy. Before the General Court, Ryanair identified specific lacunae in the information provided to the Commission and highlighted serious difficulties rendering its third plea independent of the first two pleas in the action.

100 The Commission, the Kingdom of Spain, the French Republic and the Republic of Finland submit that the fourth ground of appeal must be rejected as unfounded.

101 When an applicant seeks the annulment of a decision of the Commission not to raise objections in relation to State aid, it essentially contests the fact that that decision was adopted without the Commission initiating the formal investigation procedure provided for in Article 108(2) TFEU, thereby infringing the applicant’s procedural rights. In order to have its action for annulment upheld, the applicant may invoke any plea to show that the assessment of the information and evidence which the Commission had at its disposal during the preliminary examination phase of the measure notified should have raised doubts as to the compatibility of that measure with the internal market. The use of such arguments cannot, however, have the consequence of changing the subject matter of the application or altering the conditions of its admissibility. On the contrary, the existence of doubts concerning that compatibility is precisely the evidence which must be adduced in order to show that the Commission was required to initiate the formal investigation procedure under Article 108(2) TFEU and Article 6(1) 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) (see, to that effect, judgments of 24 May 2011, Commission v Kronoply and Kronotex, C‑83/09 P, EU:C:2011:341, paragraph 59, and of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 143).

102 Thus, it is for the party applying for annulment of a decision not to raise any objections to show that there were doubts concerning the compatibility of the aid with the internal market, meaning that the Commission was required to initiate the formal investigation procedure. Such proof must be sought both in the circumstances in which the decision was taken and in its content, on the basis of a body of corroborating evidence (see, to that effect, judgments of 2 September 2021, Commission v Tempus Energy and Tempus Energy Technology, C‑57/19 P, EU:C:2021:663, paragraph 40, and of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 144).

103 In particular, the insufficient or incomplete nature of the examination carried out by the Commission during the preliminary examination procedure is an indication that the Commission was faced with serious difficulties in assessing the compatibility of the notified measure with the internal market, which should have led it to initiate the formal investigation procedure (judgments of 2 September 2021, Commission v Tempus Energy and Tempus Energy Technology, C‑57/19 P, EU:C:2021:663, paragraph 41, and of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 145).

104 In that respect, as regards, first of all, the complaint alleging that the General Court held, in paragraph 108 of the judgment under appeal, that the third plea in the action at first instance lacked any independent content, it should be noted that it is true, as Ryanair has stated in its appeal, that if the existence of serious difficulties, within the meaning of the case-law of the Court of Justice referred to in paragraph 103 above, had been established, the decision at issue could have been annulled on that ground alone, even though it had not been established, moreover, that the Commission’s assessments as to substance were wrong in law or in fact (see, by analogy, judgments of 2 April 2009, Bouygues and Bouygues Télécom v Commission, C‑431/07 P, EU:C:2009:223, paragraph 66, and of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 146).

105 Furthermore, the existence of such difficulties may be sought, inter alia, in those assessments and may, in principle, be established by pleas or arguments put forward by an applicant in order to challenge the merits of the decision not to raise objections, even if the examination of those pleas or arguments does not lead to the conclusion that the Commission’s assessments as to substance are wrong in fact or in law (see, to that effect, judgments of 2 April 2009, Bouygues and Bouygues Télécom v Commission, C‑431/07 P, EU:C:2009:223, paragraphs 63 and 66, and of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 147).

106 In the present case, it must be stated that the third plea in Ryanair’s action at first instance alleged, in essence, that the examination carried out by the Commission during the preliminary examination procedure and the different assessment of the compatibility of the measure at issue which the Commission would have made if it had decided to initiate a formal investigation procedure were incomplete and insufficient. It is also apparent from that action that, in support of that plea, Ryanair essentially either repeated in a condensed manner the arguments put forward in the first and second pleas of that action, relating to the merits of the decision at issue, or referred directly to those arguments.

107 In those circumstances, the General Court was fully entitled to find, in paragraph 108 of the judgment under appeal, that the third plea in the action at first instance lacked ‘any independent content’ in relation to the first two pleas in that action, in that, having examined the substance of those three pleas, including the arguments alleging that the examination carried out by the Commission was incomplete and insufficient, it was not required to assess separately the merits of the third plea in that action, all the more so since, as the General Court also correctly stated in paragraph 108 of the judgment under appeal, Ryanair had not, by that plea, put forward specific evidence capable of demonstrating the existence of possible serious difficulties encountered by the Commission in assessing the compatibility of the measure at issue with the internal market.

108 It follows that the General Court did not err in law in finding, in paragraph 109 of the judgment under appeal, that there was no need to rule on the merits of the third plea in the action at first instance. It is not necessary, in that regard, to examine, moreover, whether the General Court was right to hold, in paragraph 107 of the judgment under appeal, that that plea was subsidiary in nature and that it was deprived of its stated purpose.

109 Finally, it must be held that Ryanair has not put forward any argument capable of demonstrating that the General Court distorted the evidence, within the meaning of the case-law referred to in paragraph 35 above, in its examination of the third plea in the action at first instance.

110 It follows from the foregoing that the fourth ground of appeal must be rejected as unfounded.

111 By its fifth ground of appeal, Ryanair alleges that the General Court erred in law and manifestly distorted the facts in that it wrongly held, in paragraphs 110 to 126 of the judgment under appeal, that the Commission had not infringed its obligation to state reasons under the second paragraph of Article 296 TFEU.

112 According to the appellant, the General Court accepted that the context in which the decision at issue was adopted, marked by the occurrence of the COVID-19 pandemic and the difficulties to which that pandemic may have given rise in the drafting of the Commission’s decisions, could justify a lack of crucial evidence in the statement of reasons for that decision, even though that evidence was necessary for the appellant to understand the reasoning underlying the Commission’s conclusions. The General Court’s interpretation of the second paragraph of Article 296 TFEU is contrary to the case-law of the Court of Justice and deprives the obligation to state reasons of any practical effect.

113 The Commission, the Kingdom of Spain, the French Republic and the Republic of Finland submit that the fifth ground of appeal must be rejected as unfounded.

114 It should be pointed out that, according to settled case-law, the statement of reasons required by the second paragraph of Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measures in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the Court having jurisdiction to exercise its power of review. 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 direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to specify all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of the second paragraph of 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 (judgment of 2 September 2021, Commission v Tempus Energy and Tempus Energy Technology, C‑57/19 P, EU:C:2021:663, paragraph 198 and the case-law cited).

115 Specifically, as regards a decision under Article 108(3) TFEU not to raise objections in respect of an aid measure, as in the present case, the Court of Justice has held previously that 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, and that even a succinct statement of reasons for that decision must be regarded as sufficient for the purpose of satisfying the requirement to state adequate reasons laid down in the second paragraph of Article 296 TFEU, provided that it discloses in a clear and unequivocal fashion the reasons why the Commission considered that it was not faced with serious difficulties, the question whether the reasoning is well founded being a separate matter (see, to that effect, judgment of 2 September 2021, Commission v Tempus Energy and Tempus Energy Technology, C‑57/19 P, EU:C:2021:663, paragraph 199 and the case-law cited).

116 It is in the light of those considerations that it is necessary to examine whether the General Court erred in law in holding that the decision at issue was sufficiently reasoned.

117 In that regard, first, in so far as Ryanair complains that the General Court, in essence, relaxed the requirements relating to the obligation to state reasons in view of the context of the COVID-19 pandemic in which the decision at issue had been adopted, it must be stated that there is nothing to indicate, in the grounds set out in paragraphs 110 to 126 of the judgment under appeal, that the General Court intended to justify, by that circumstance, a failure to state reasons for that decision.

118 Second, in so far as Ryanair relies on specific factors on which the Commission, in breach of its obligation to state reasons, did not take a decision or which it did not assess in the decision at issue, such as weighing the beneficial effects of the measure at issue against its adverse effects, whether that measure complied with the principles of equal treatment, the freedom to provide services and the freedom of establishment, the precise reasons why airlines operating in Finland other than Finnair were excluded from the benefit of that measure and the reasons why those airlines were not able to replace Finnair, it is apparent from paragraphs 114 to 116 of the judgment under appeal that the General Court considered that those factors were either not relevant for the purposes of that decision, or that reference was made to them to the requisite legal standard in that decision for the Commission’s reasoning to be understood in that regard.

119 It does not appear that, by those assessments, the General Court failed to have regard to the requirement to state reasons for a Commission decision adopted under Article 108(3) TFEU not to raise objections, as follows from the case-law referred to in paragraphs 114 and 115 above, since that statement of reasons, in the present case, enables Ryanair to ascertain the reasons for that decision and enables the EU judicature to exercise its power of review with regard to that decision, as is, moreover, apparent from the judgment under appeal.

120 Furthermore, in so far as the line of argument put forward in the fifth ground of appeal seeks in reality to demonstrate that the decision at issue was adopted on the basis of an insufficient or legally incorrect assessment by the Commission, that line of argument, relating to the merits of that decision rather than to the requirement to state reasons as an essential procedural requirement, must be rejected in the light of the case-law referred to in paragraph 115 above.

121 It follows from the foregoing that the General Court did not err in law in holding, in paragraphs 110 to 126 of the judgment under appeal, that the decision at issue was sufficiently reasoned.

122 Lastly, it must be pointed out that Ryanair has not put forward any argument capable of demonstrating that the General Court distorted the facts, within the meaning of the case-law referred to in paragraph 35 above, when examining the fourth plea in the action at first instance.

123 It follows from the foregoing that the fifth ground of appeal must be rejected as unfounded.

124 Since none of the grounds of appeal raised by the appellant has been upheld, the appeal must be dismissed in its entirety.

125 In accordance with Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs.

126 Under Article 138(1) of those rules, which apply to the procedure on appeal by virtue of Article 184(1) of those rules, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the appellant has been unsuccessful and the Commission has applied for costs to be awarded against it, the appellant must be ordered to pay the costs of the present appeal.

127 In accordance with Article 184(4) of the Rules of Procedure of the Court of Justice, an intervener at first instance who participates in the written or oral part of the proceedings before the Court of Justice may be ordered to pay costs. The Court may decide that it is to bear its own costs. Accordingly, the Kingdom of Spain, the French Republic and the Republic of Finland, interveners in the action at first instance, having participated in the proceedings before the Court of Justice, are to bear their own costs.

2. Orders Ryanair DAC to bear its own costs and to pay those incurred by the European Commission;

3. Orders the Kingdom of Spain, the French Republic and the Republic of Finland to bear their own costs.

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Ryanair v Commission (Appeal - State aid - Finnish air-transport market - Judgment) [2024] EUECJ C-353/21P (30 May 2024) URL: http://www.bailii.org/eu/cases/EUECJ/2024/C35321P.html Cite as: ECLI:EU:C:2024:437, EU:C:2024:437, [2024] EUECJ C-353/21P

Court of Justice of the European Communities (including Court of First Instance Decisions)