Ryanair v Commission (TAP II ; aide au sauvetage ; COVID-19) (State aid - Portuguese air transport market - Judgment) [2025] EUECJ T-743/21 (05 February 2025)
( State aid - Portuguese air transport market - Rescue aid granted by Portugal to TAP SGPS - State loan - Decision not to raise any objections - Action for annulment - Locus standi - Admissibility - Eligibility - Point 22 of the Guidelines on State aid for rescuing and restructuring undertakings in difficulty - Company belonging to a group - Intrinsic difficulties not resulting from an arbitrary allocation of costs within the group - Difficulties which are too serious to be dealt with by the group itself - Appropriateness of the aid - Proportionality - Weighing up of the positive and negative effects - Freedom of establishment - Freedom to provide services - Equal treatment - Obligation to state reasons )
In Case T‑743/21,
Ryanair DAC, established in Swords (Ireland), represented by E. Vahida, F.‑C. Laprévote, D. Pérez de Lamo, S. Rating and I.‑G. Metaxas‑Maranghidis, lawyers,
applicant,
v
European Commission, represented by I. Barcew and V. Bottka, acting as Agents,
defendant,
supported by
Portuguese Republic, represented by P. Barros da Costa, M. Ramos, S. Jaulino, A. Pimenta and A. Rodrigues, acting as Agents, and by N. Mimoso Ruiz and G. Oliveira e Costa, lawyers,
intervener,
THE GENERAL COURT (Seventh Chamber),
composed of K. Kowalik-Bańczyk, President, E. Buttigieg and G. Hesse (Rapporteur), Judges,
Registrar: A. Juhász-Tóth, Administrator,
having regard to the written part of the procedure,
further to the hearing on 18 April 2024,
gives the following
Judgment
1 By its action under Article 263 TFEU, the applicant, Ryanair DAC, seeks the annulment of Commission Decision C(2021) 5302 final of 16 July 2021 on State aid SA.57369 (2020/N) – Portugal – Rescue aid to TAP SGPS (‘the contested decision’).
Background to the dispute
2 On 9 June 2020, the Portuguese Republic notified the European Commission of an aid measure in the form either of a State loan or of a combination of such a loan and a State guarantee, of a maximum amount of EUR 1.2 billion (‘the measure at issue’), for Transportes Aéreos Portugueses SGPS, SA (‘the beneficiary’), in accordance with Article 108(3) TFEU.
3 The measure at issue was intended to keep the beneficiary, the parent company and 100% shareholder of Transportes Aéreos Portugueses SA (‘TAP Air Portugal’), in operation for six months, between July and December 2020. The measure at issue concerned a loan agreement concluded between, inter alia, the Portuguese Republic as lender, TAP Air Portugal as borrower and the beneficiary as guarantor.
4 On 10 June 2020, the Commission adopted Decision C(2020) 3989 final on State aid SA.57369 (2020/N) – COVID-19 – Portugal – Aid granted to TAP (‘the initial decision’), by which it, after finding that the measure at issue constituted State aid within the meaning of Article 107(1) TFEU, declared that measure compatible with the internal market on the basis of Article 107(3)(c) TFEU, read in conjunction with the Guidelines on State aid for rescuing and restructuring non-financial undertakings in difficulty (OJ 2014 C 249, p. 1; ‘the Guidelines’).
5 By judgment of 19 May 2021, Ryanair v Commission (TAP; Covid-19) (T‑465/20, EU:T:2021:284), the General Court annulled the initial decision on the ground that it was vitiated by a failure to state reasons as regards the application of point 22 of the Guidelines. The General Court held, in essence, that the Commission had not, at the outset, specified whether the beneficiary belonged to a group within the meaning of point 22. In addition, it ordered that the effects of the annulment of that decision be suspended pending the adoption of a new decision by the Commission under Article 108 TFEU.
6 On 16 July 2021, the Commission adopted the contested decision, by which it found that the measure at issue constituted State aid within the meaning of Article 107(1) TFEU but that it was compatible with the internal market on the basis of Article 107(3)(c) TFEU read in conjunction with the Guidelines. It found, inter alia, that the beneficiary was eligible for rescue aid under point 22 of the Guidelines.
9 The Portuguese Republic contends that the action is inadmissible in so far as it seeks to challenge the merits of the contested decision, and that it should be dismissed on substantive grounds as to the remainder. In the alternative, it submits that the entire action should be dismissed on its merits.
Law
Admissibility
10 In the first place, the applicant submits that it is an interested party for the purposes of Article 108(2) TFEU and Article 1(h) 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 that, accordingly, it has standing to bring proceedings in order to safeguard its procedural rights. In the second place, it maintains that its competitive position on the market has been substantially affected by the measure at issue and that, consequently, it also has standing to challenge the contested decision on the merits.
11 The Commission and the Portuguese Republic maintain that the applicant does not have standing to challenge the contested decision on the merits.
12 It should be borne in mind that, where the Commission adopts a decision not to raise objections on the basis of Article 4(3) of Regulation 2015/1589, as in the present case, it not only declares that the measures at issue are compatible with the internal market, but also, by implication, that it refuses to initiate the formal investigation procedure laid down in Article 108(2) TFEU and in Article 6(1) of that regulation (see, by analogy, judgment of 27 October 2011, Austria v Scheucher-Fleisch and Others, C‑47/10 P, EU:C:2011:698, paragraph 42 and the case-law cited). If, following the preliminary examination, it finds that the measure notified raises doubts as to its compatibility with the internal market, the Commission is required to adopt, on the basis of Article 4(4) of Regulation 2015/1589, a decision initiating the formal investigation procedure under Article 108(2) TFEU and Article 6(1) of that regulation. Under the latter provision, such a decision is to call upon the Member State concerned and upon other interested parties to submit comments within a prescribed period which must not as a rule exceed one month (see, by analogy, judgment of 24 May 2011, Commission v Kronoply and Kronotex, C‑83/09 P, EU:C:2011:341, paragraph 46).
13 In the present case, following a preliminary examination, the Commission decided not to raise any objections to the measure at issue on the ground that it was compatible with the internal market, pursuant to Article 107(3)(c) TFEU. In so far as the formal investigation procedure was not initiated, the parties concerned, which could have submitted comments during that stage, were denied that opportunity. In order to remedy that, those parties are entitled to challenge the Commission’s decision not to initiate the formal investigation procedure before the EU Courts. Therefore, an action brought by a party concerned within the meaning of Article 108(2) TFEU for annulment of the decision not to raise any objections would be admissible in so far as that party would be seeking to safeguard the procedural rights available to it under that latter provision (see, to that effect, judgment of 18 November 2010, NDSHT v Commission, C‑322/09 P, EU:C:2010:701, paragraph 56 and the case-law cited).
14 Having regard to Article 1(h) of Regulation 2015/1589, an undertaking competing with the beneficiary of an aid measure is an ‘interested party’ for the purposes of Article 108(2) TFEU (see, by analogy, judgment of 3 September 2020, Vereniging tot Behoud van Natuurmonumenten in Nederland and Others v Commission, C‑817/18 P, EU:C:2020:637, paragraph 50; see also, to that effect and by analogy, judgment of 18 November 2010, NDSHT v Commission, C‑322/09 P, EU:C:2010:701, paragraph 59).
15 In the present case, it is not disputed that the applicant was a competitor of TAP Air Portugal and therefore is an interested party within the meaning of Article 1(h) of Regulation 2015/1589, with standing to bring proceedings in order to safeguard its procedural rights under Article 108(2) TFEU.
16 As to the applicant’s standing to challenge the contested decision on the merits, it should be borne in mind that the admissibility of an action brought by a natural or legal person against an act which is not addressed to them, in accordance with the fourth paragraph of Article 263 TFEU, is subject to the condition that they be accorded standing to bring proceedings, which arises in two situations. First, such proceedings may be instituted if the act is of direct and individual concern to those persons. Second, such persons may bring proceedings against a regulatory act not entailing implementing measures if that act is of direct concern to them (judgments of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraphs 59 and 91, and of 13 March 2018, Industrias Químicas del Vallés v Commission, C‑244/16 P, EU:C:2018:177, paragraph 39).
17 Since the contested decision, which was addressed to the Portuguese Republic, does not constitute a regulatory act within the meaning of the fourth paragraph of Article 263 TFEU, since it is not an act of general application (see, to that effect, judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 56), it is for the Court to ascertain whether that decision is of direct and individual concern to the applicant, within the meaning of that provision.
18 In that regard, it is settled case-law that persons other than those to whom a decision is addressed may claim to be individually concerned only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and, by virtue of those factors, distinguishes them individually just as in the case of the person addressed (judgments of 15 July 1963, Plaumann v Commission, 25/62, EU:C:1963:17, p. 107; of 28 January 1986, Cofaz and Others v Commission, 169/84, EU:C:1986:42, paragraph 22; and of 22 November 2007, Sniace v Commission, C‑260/05 P, EU:C:2007:700, paragraph 53).
19 Thus, where an applicant calls into question the merits of a decision appraising the aid taken on the basis of Article 108(3) TFEU or after the formal investigation procedure, the mere fact that it may be regarded as ‘concerned’ within the meaning of Article 108(2) TFEU cannot suffice to render the action admissible. It must then demonstrate that it has a particular status, for the purposes of the case-law cited in in paragraph 18 above. That applies in particular where the applicant’s position on the market concerned is substantially affected by the aid to which the decision at issue relates (see judgment of 15 July 2021, Deutsche Lufthansa v Commission, C‑453/19 P, EU:C:2021:608, paragraph 37 and the case-law cited).
20 In that regard, the Court of Justice has held that the demonstration by the applicant of a substantial effect on its market position did not entail a definitive ruling on the competitive relationship between the applicant and the undertakings in receipt of aid, but required only that the applicant adduce pertinent reasons to show that the Commission’s decision could harm its legitimate interests by substantially affecting its position on the market in question (see judgment of 15 July 2021, Deutsche Lufthansa v Commission, C‑453/19 P, EU:C:2021:608, paragraph 57 and the case-law cited).
21 It is thus apparent from the case-law of the Court of Justice that the substantial adverse effect on the applicant’s competitive position on the market in question results not from a detailed analysis of the various competitive relationships on that market, allowing the extent of the adverse effect on its competitive position to be established specifically, but, in principle, from a prima facie finding that the grant of the measure covered by the Commission’s decision leads to a substantial adverse effect on that position (see judgment of 15 July 2021, Deutsche Lufthansa v Commission, C‑453/19 P, EU:C:2021:608, paragraph 58 and the case-law cited).
22 It follows that that condition may be satisfied where the applicant adduces evidence to show that the measure at issue is liable to have a substantial adverse effect on its position on the market concerned (see judgment of 15 July 2021, Deutsche Lufthansa v Commission, C‑453/19 P, EU:C:2021:608, paragraph 59 and the case-law cited).
23 As regards the factors accepted by the case-law for the purpose of establishing a substantial adverse effect of that kind, it should be borne in mind that the mere fact that an act may exercise an influence on the competitive relationships existing on the relevant market and that the undertaking concerned is in a competitive relationship with the beneficiary of that act cannot suffice for that undertaking to be regarded as being individually concerned by that act. Therefore, an undertaking cannot rely solely on its status as a competitor of the undertaking in receipt of aid (see judgment of 15 July 2021, Deutsche Lufthansa v Commission, C‑453/19 P, EU:C:2021:608, paragraph 60 and the case-law cited).
24 Demonstrating a substantial adverse effect on a competitor’s position on the market cannot simply be a matter of the existence of certain factors indicating a decline in the applicant’s commercial or financial performance, such as a significant decline in turnover, appreciable financial losses or a significant reduction in market share following the grant of the aid in question. The grant of State aid can also have an adverse effect on the competitive situation of an operator in other ways, in particular by causing the loss of an opportunity to make a profit or a less favourable development than would have been the case without such aid (judgment of 15 July 2021, Deutsche Lufthansa v Commission, C‑453/19 P, EU:C:2021:608, paragraph 61).
25 In addition, the case-law does not require the applicant to provide information as to the geographical scope of those markets, or as to its market shares or those of the beneficiary of the measure in question or of any competitors on those markets (judgment of 15 July 2021, Deutsche Lufthansa v Commission, C‑453/19 P, EU:C:2021:608, paragraph 65).
26 It is in the light of those principles that it is necessary to examine whether the applicant has adduced evidence to show that the measure at issue was liable to have a significant adverse effect on its position on the market concerned.
27 In that regard, the applicant submits that it is the closest and most direct competitor of TAP Air Portugal on the Portuguese passenger air transport market. Accordingly, it was in direct competition with TAP Air Portugal on 32 routes between city pairs identified as ‘point[s] of origin/point[s] of destination’ (‘the O&D routes’). With regard to seat capacity, the applicant has a market share of 20% in Portugal, compared with a market share of 33% by TAP Air Portugal and market shares of 12% and 3% respectively for the third and fourth largest airlines on the Portuguese market.
28 The Commission, supported by the Portuguese Republic, disputes the admissibility of the action in so far as it is directed against the merits of the contested decision. According to the Commission, the applicant has failed to demonstrate to what extent its competitive position is affected in the same way as if it were an addressee of the decision and in such a way as to distinguish it from other economic operators. The evidence adduced by the applicant in Annex A.3.1 to the application is limited to the number of seats departing from Portugal without any indication of the routes concerned. Furthermore, it is not sufficient for the applicant to refer to the 32 O&D routes on which the applicant and TAP Air Portugal were in direct competition, without indicating the total number of routes operated by it or the destinations served outside the European Union. Nor has the applicant established that it and TAP Air Portugal were the only airlines operating on those routes, to the exclusion of other competitors. Moreover, on certain routes, where the city in question had several airports, the airports served by TAP Air Portugal and the applicant were not the same, with the result that the existence of direct competition has not been established. Moreover, competition between the applicant and TAP Air Portugal appears to be weaker as regards domestic flights in Portugal and routes to the Azores islands (Portugal). The applicant also failed to specify how its own activities on the O&D routes served by both the applicant and the beneficiary were actually or could reasonably be affected by the grant of the measure at issue.
29 It should be borne in mind that it is not necessary, at the stage of examining the admissibility of the action, to give a definitive ruling on the substitutability of the services in question or on the specific competitive relationship between the applicant and the beneficiary. It is sufficient, in principle, for the applicant to show that, prima facie, the grant of the measure at issue leads to a substantial adverse effect on its competitive position (see the case-law cited in paragraphs 20 and 21 above).
30 In the present case, it should be noted, as is apparent from Annex A.3.8 to the application, that the applicant and TAP Air Portugal competed on 32 O&D routes and that those routes were mainly intra-European routes. It is apparent, in particular, from paragraph 10 of the contested decision that the applicant was the second largest airline in Portugal, after TAP Air Portugal. In addition, the applicant claims, without being contradicted, that it carried 10.9 million passengers in 2019 on its Portuguese routes and that its planned programme for summer 2020 included 126 routes departing from 5 Portuguese airports.
31 In addition, it is apparent from paragraphs 91 and 143 of the contested decision, inter alia, that, in the absence of the measure at issue, the beneficiary would have encountered serious financial difficulties and an acute liquidity shortage, or even risked having to cease its activities. If the measure at issue had not been granted, the applicant would therefore probably have been in a position to expand its market share.
32 The factors set out in paragraphs 30 and 31 above support the conclusion that the applicant has demonstrated to the requisite legal standard that the grant of the measure at issue was, prima facie, liable to have a substantial adverse effect on its competitive position on the market, by causing, inter alia, a loss of an opportunity to make a profit or a less favourable development than would have been the case without such a measure (see the case-law cited in paragraph 24 above).
33 The Commission’s argument that the applicant has not demonstrated that its competitive position vis-à-vis TAP Air Portugal was distinct from that of TAP Air Portugal’s other competitors cannot succeed. The condition that there be a substantial effect on the applicant’s competitive position is a factor that is particular to that applicant, which must be assessed solely in relation to its market position prior to the grant of the measure at issue or in its absence. It is therefore not a matter of comparing the situation of all the competitors operating on the market in question. Moreover, as observed in paragraph 25 above, the Court has explained that it is not necessary for the applicant to provide information concerning its market shares, those of the beneficiary or of other competitors on that market. It thus follows that, in order to show that there has been a substantial effect on its competitive position, the applicant cannot be required to establish, with supporting evidence, what the competitive situation of its competitors is and to differentiate itself from that situation (judgment of 10 May 2023, Ryanair and Condor Flugdienst v Commission (Lufthansa; COVID-19), T‑34/21 and T‑87/21, under appeal, EU:T:2023:248, paragraph 47).
34 In addition, it is important to observe that the case-law cited in paragraph 18 above foresees two different criteria for showing that persons other than those to whom a decision is addressed are individually concerned by that decision, namely that the contested decision affects them ‘by reason of certain attributes which are peculiar to them’ or ‘by reason of circumstances in which they are differentiated from all other persons’. That case-law does not therefore require an applicant to show that, in every case, its factual circumstances are different from those of any other person. It is sufficient that the contested decision affects the applicant by reason of certain attributes which are peculiar to it.
35 That is the case here. The factors referred to in paragraphs 30 and 31 above indicate, in a sufficiently plausible manner, that the applicant’s position on the market concerned was characterised by certain attributes peculiar to it, such as its significant presence on that market and the fact that it was by far the closest competitor of TAP Air Portugal.
36 Since the measure at issue is likely to have a substantial effect on its competitive position on the market, the applicant is individually concerned by it.
37 As to the question whether the applicant is directly concerned by the contested decision, it is important to recall that, according to settled case-law, a competitor of a beneficiary of aid is directly concerned by a Commission decision authorising a Member State to pay the aid when there is no doubt as to that State’s intention to do so (see, to that effect, judgment of 27 April 1995, ASPEC and Others v Commission, T‑435/93, EU:T:1995:79, paragraphs 60 and 61), as is the case here.
38 Accordingly, the applicant is entitled to challenge the merits of the contested decision.
Substance
39 In support of the action, the applicant relies on five pleas in law alleging, first, infringement of the eligibility conditions laid down in the Guidelines; second, infringement of Article 107(3)(c) TFEU; third, breach of the principles of non-discrimination, freedom to provide services and freedom of establishment; fourth, infringement of Article 108(2) TFEU; and, fifth, breach of the duty to state reasons.
The first plea in law, alleging that the Commission disregarded the conditions for eligibility of rescue aid
40 By its first plea, the applicant submits that the Commission failed to establish to the requisite legal standard, in the contested decision, that the measure at issue fell within the material scope of the Guidelines. It disputes the fact that the beneficiary was eligible for rescue aid.
41 It should be recalled, at the outset, that, according to point 22 of the Guidelines, ‘a company belonging to or being taken over by a larger business group is not normally eligible for aid under these guidelines, except where it can be demonstrated that the company’s difficulties are intrinsic and are not the result of an arbitrary allocation of costs within the group, and that the difficulties are too serious to be dealt with by the group itself.’
42 Point 22 of the Guidelines sets out the conditions for considering that an undertaking in difficulty belonging to or being taken over by a larger business group is eligible for rescue aid under those guidelines. Accordingly, if the beneficiary of the aid belongs to a group or is taken over by a larger business group, it is the task of the Commission to examine, in the first place, whether the difficulties faced by the beneficiary are intrinsic and are not the result of an arbitrary allocation of costs within the group and, in the second place, whether those difficulties are too serious to be dealt with by that group itself.
43 In the present case, as explained in paragraphs 11, 99 and 100 of the contested decision, it should be noted that, at the time when the measure at issue was notified, half of the beneficiary’s shares were held by Participações Públicas SGPS SA (‘Parpública’), which managed the Portuguese State’s shareholdings. Atlantic Gateway SGPS Lda (‘AGW’) held 45% of the beneficiary’s shares while 5% of the shares were owned by other shareholders. AGW itself had several shareholders. Accordingly, Mr Humberto Pedrosa held 50% of the shares in AGW through HPGB SGPS, SA and Mr David Neeleman also owned 50% of the shares through DGN Corporation and Global Azulair Projects SGPA, SA.
– The first complaint, alleging an error of law and a manifest error of assessment as regards the composition of the group to which the beneficiary belonged
44 First of all, the applicant claims that the Commission failed to take into account, when defining the composition of the group within the meaning of point 22 of the Guidelines, the direct and indirect shareholders of AGW, namely Mr Pedrosa, Mr Neeleman and their companies HPGB, DGN and Global Azulair Projects. First, it submits that that point requires a rigorous examination of the composition of the group and that the Commission has no room for manoeuvre, given that it is required to examine whether the group can resolve the beneficiary’s difficulties. Second, the applicant submits that a single economic entity may include natural persons if they directly or indirectly exercise joint control over other natural or legal persons forming part of that entity.
45 In the present case, the Autoridade de Concorrência (Competition Authority, Portugal) has already found on several occasions that the two individual shareholders, through their companies, HPGB and DGN, exercised joint control over the beneficiary. Third, the Commission acknowledged, in paragraph 100 of the contested decision, that the two individual shareholders of AGW were partner enterprises of the beneficiary, pursuant to Article 3(2) of the Annex to Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (OJ 2003 L 124, p. 36). Fourth, the Commission verified, in paragraph 127 of the contested decision, the capacity of Mr Neeleman and Mr Pedrosa to cover the beneficiary’s financial needs. It therefore implicitly considered that they belonged to the group.
46 The Commission, supported by the Portuguese Republic, disputes those arguments.
47 The Commission found, in paragraphs 93 to 113 of the contested decision, that the beneficiary belonged to a group within the meaning of point 22 of the Guidelines, read in conjunction with point 21 and footnote 28 thereof. According to the Commission, the beneficiary formed a group with Parpública and AGW, two of its direct shareholders who held 50% and 45% of its capital, respectively. However, the Commission considered that it was not necessary to examine whether AGW’s ultimate shareholders, namely Mr Neeleman and Mr Pedrosa, also belonged to the group.
48 It must be pointed out that the term ‘group’ within the meaning of point 22 of the Guidelines is not defined.
49 As regards the context of which point 22 of the Guidelines forms part, it should be noted that the words ‘larger business group’ in point 21(b) of those guidelines contain a reference to footnote 28, which states as follows:
‘To determine whether a company is independent or forms part of a group, the criteria laid down in [the] Annex … to Recommendation [2003/361] will be taken into account.’
50 Article 3(2) of the Annex to Recommendation 2003/361 provides, inter alia, that ‘partner enterprises’ are enterprises which are not classified as linked enterprises within the meaning of paragraph 3 of that annex and between which there is the following relationship: an enterprise (upstream enterprise) holds, either solely or jointly with one or more linked enterprises within the meaning of paragraph 3 of that annex, 25% or more of the capital or voting rights of another enterprise (downstream enterprise).
‘“Linked enterprises” are enterprises which have any of the following relationships with each other:
(a) an enterprise has a majority of the shareholders’ or members’ voting rights in another enterprise;
(b) an enterprise has the right to appoint or remove a majority of the members of the administrative, management or supervisory body of another enterprise;
(c) an enterprise has the right to exercise a dominant influence over another enterprise pursuant to a contract entered into with that enterprise or to a provision in its memorandum or articles of association;
(d) an enterprise, which is a shareholder in or member of another enterprise, controls alone, pursuant to an agreement with other shareholders in or members of that enterprise, a majority of shareholders’ or members’ voting rights in that enterprise.
…’
52 It should be noted that the Commission examined, first, in paragraphs 98 to 104 of the contested decision, whether the beneficiary, Parpública and AGW were linked enterprises within the meaning of Article 3(3) of the Annex to Recommendation 2003/361 and, second, in paragraphs 105 to 110 of that decision, whether those three companies together constituted a group within the meaning of point 22 of the Guidelines.
53 In the first place, it must be concluded that, contrary to what the applicant claims, the Commission did not err in law or make an error of assessment in finding, in paragraph 104 of the contested decision, that the conditions set out in Article 3(3) of the Annex to Recommendation 2003/361 were satisfied in the present case as regards Parpública, AGW and the beneficiary and that those companies could be regarded as linked within the meaning of that provision. The Commission took into account the joint control exercised by AGW and Parpública over the beneficiary. As is apparent from paragraph 101 of the contested decision, the shareholders’ agreement concluded between Parpública and AGW provided for an equal distribution of the rights to appoint the members of the beneficiary’s board of directors between those two companies. It is also apparent from paragraph 101 of the contested decision that operational decisions could be taken by a majority of eight of the 12 votes cast by the members of the board of directors. Lastly, paragraph 102 of the contested decision provides, for the adoption of resolutions concerning strategic matters, that a qualified majority is required in the event of a tie.
54 In the second place, the Commission relied on the existence of joint control, as set out in paragraph 53 above, in order to conclude that the beneficiary, Parpública and AGW formed a single economic entity. According to the case-law, two companies form a single economic entity, in particular, where one exercises decisive influence over the other (see, to that effect, judgment of 24 October 1996, Viho v Commission, C‑73/95 P, EU:C:1996:405, paragraph 51). Decisive influence may also be exercised by two companies together if they exercise joint control over another company (see, to that effect, judgment of 2 February 2012, Dow Chemical v Commission, T‑77/08, not published, EU:T:2012:47, paragraph 83).
55 It follows from those considerations, contrary to what the applicant claims, that the Commission did not err in law or make an error of assessment in concluding, in paragraph 113 of the contested decision, that the beneficiary belonged to a group within the meaning of point 22 of the Guidelines. In those circumstances, the Commission was right to state, in paragraph 100 of the contested decision, that it was not necessary for it to determine whether the ultimate shareholders of AGW, namely Mr Neeleman and Mr Pedrosa, also belonged to that group. The Commission was entitled to conclude that the beneficiary belonged to a group within the meaning of that point of the Guidelines on the basis of its relationship with Parpública and AGW.
56 Furthermore, the question whether the Commission took account, to the requisite legal standard, of AGW’s shareholders in its examination of the two conditions laid down in point 22 of the Guidelines, which are described in paragraph 42 above, is dealt with in the context of the following two complaints of the present plea.
57 Accordingly, the present complaint must be rejected.
– The second complaint, alleging that the Commission wrongly concluded that the beneficiary’s difficulties were intrinsic and were not the result of an arbitrary allocation of costs within the group
58 First, the applicant submits that the Commission confined itself to analysing the financial situation of the beneficiary’s subsidiary, TAP Air Portugal, without examining the situation of the companies linked to it.
59 Second, the Commission adopted the data provided by the Portuguese Government without carrying out its own examination and failed to show that the difficulties were intrinsic to the beneficiary. The applicant refers to two other decisions adopted prior to the initial decision concerning aid measures in the air transport sector and observes that the Commission had indeed carried out an analysis of the group’s accounts.
60 Third, the Commission merely stated that it had found no evidence of an arbitrary allocation of costs between the members of the group to the detriment of the beneficiary, without examining whether that was the case. More specifically, it did not seek to ascertain whether the beneficiary entertained economic relationships with Mr Pedrosa and Mr Neeleman, even though there was evidence in the press which suggested that Mr Neeleman had provided services to the beneficiary. In addition, the beneficiary’s annual report indicates the existence of transactions with AGW and other companies active in the transport sector, founded or owned by Mr Pedrosa and Mr Neeleman in 2020. Those indicia should have led the Commission to carry out a more complete examination.
61 The Commission, supported by the Portuguese Republic, disputes those arguments.
62 It should be noted that the Commission rightly submits that the part of the sentence ‘except where it can be demonstrated that the company’s difficulties are intrinsic and are not the result of an arbitrary allocation of costs within the group’ in point 22 of the Guidelines merely sets out one and the same condition which is to be interpreted as meaning that the difficulties of an undertaking belonging to a group must be regarded as being intrinsic if they are not the result of an arbitrary allocation of costs within that group (judgment of 18 May 2022, Ryanair v Commission (Condor; rescue aid), T‑577/20, EU:T:2022:301, paragraph 48).
63 It should also be noted that the purpose of point 22 of the Guidelines is to prevent a group of undertakings from offloading its costs, debts or liabilities onto an entity within the group, thus making it eligible for rescue aid, whereas it would not be otherwise. In other words, point 22 seeks to prevent the circumvention of State aid rules by means of mechanisms that are created artificially within a group. By contrast, the objective of that point is not to exclude an undertaking belonging to a group from the scope of rescue aid solely on the ground that its difficulties originate in the difficulties faced by the rest of the group or by another company in the group, in so far as those difficulties have not been created artificially or allocated arbitrarily within that group (judgment of 18 May 2022, Ryanair v Commission (Condor; rescue aid), T‑577/20, EU:T:2022:301, paragraph 46).
64 Moreover, as regards the allocation of the burden of proof in the context of a preliminary examination procedure in respect of a State aid measure, it is settled case-law that the Commission is required to conduct that procedure diligently and impartially so as to have at its disposal the most complete and reliable information possible for that purpose (see judgment of 2 September 2021, Commission v Tempus Energy and Tempus Energy Technology, C‑57/19 P, EU:C:2021:663, paragraph 44 and the case-law cited).
65 However, although the Court of Justice has held that, when the existence and legality of State aid is being examined, it may be necessary for the Commission, where appropriate, to go beyond a mere examination of the facts and points of law brought to its notice, it cannot be inferred from that case-law that it is for the Commission, on its own initiative and in the absence of any evidence to that effect, to seek all information which might be connected with the case before it, even where such information is in the public domain (see judgment of 2 September 2021, Commission v Tempus Energy and Tempus Energy Technology, C‑57/19 P, EU:C:2021:663, paragraph 45 and the case-law cited).
66 The present complaint must be examined in the light of those principles.
67 In the present case, in paragraphs 114 to 121 of the contested decision, the Commission found that the beneficiary’s difficulties were intrinsic and were not the result of an arbitrary allocation of costs within its group.
68 In that regard, the Commission stated that TAP Air Portugal was responsible for virtually all the beneficiary’s revenues and that that company therefore had a major influence on its performance. Between 2006 and 2015, the beneficiary accumulated negative equity. Despite operational growth since its partial privatisation in 2015, TAP Air Portugal consistently showed a decline in profitability. The beneficiary’s result for the year 2018 was negative, due to an increase in oil prices, restructuring costs and the need for extraordinary expenses for aircraft chartering. That result led to a depreciation of the bonds issued in 2019 in relation to the value initially envisaged. The COVID-19 pandemic interrupted the ongoing transformation process of TAP Air Portugal and aggravated the already unfavourable results. In addition, the Commission also found that, according to the Portuguese authorities, neither Parpública nor AGW had shared functions vis-à-vis the beneficiary and their accounts were not consolidated, so that it would have been impossible to allocate costs.
69 In the light of the factors referred to in paragraph 68 above, which are not disputed by the applicant, the Commission had relevant and consistent evidence from which it may be presumed that the difficulties were intrinsic to the beneficiary and were not the result of an arbitrary allocation of costs within its group.
70 According to the information in the contested decision, the beneficiary’s difficulties arose from its performance and management before the start of the COVID-19 pandemic. Those difficulties were aggravated by that pandemic. The Commission inferred from the information made available to it by the Portuguese Republic that the beneficiary had accumulated negative equity between 2006 and 2015. In addition, it should be noted that TAP Air Portugal’s profitability was reduced and the Commission identifies specific causes for that phenomenon, pointing to the existence of higher-than-expected costs. Lastly, it should be noted that the effect of the COVID-19 pandemic on the profitability of an airline was particularly damaging, especially if the airline was already in difficulty beforehand.
71 In addition, there was no evidence to suggest that the financial difficulties faced by the beneficiary resulted from an arbitrary allocation of costs within the group, let alone from an allocation from Mr Neeleman and Mr Pedrosa through AGW, the direct shareholder of the beneficiary. As noted in paragraph 68 above, the Commission found in the contested decision that AGW and the beneficiary did not have shared functions and that their accounts were not consolidated, with the result that it would have been impossible for AGW and, by extension, for Mr Neeleman and Mr Pedrosa to allocate costs to the detriment of the beneficiary.
72 The other arguments put forward by the applicant do not call the foregoing considerations into question. It is true that, in its examination, the Commission gave significant weight to the results of TAP Air Portugal, and not to those of the other companies under the beneficiary’s control, but it has not been disputed that TAP Air Portugal generated almost all of the beneficiary’s revenues. In addition, it must be stated that the Commission did not confine its examination to TAP Air Portugal alone, but also took account of the situation of the beneficiary, as is apparent from paragraph 68 above.
73 Moreover, although the Commission has used a different method of examination in other previous decisions, that does not mean that it is required to do so in the same way in the present case. The legality of the contested decision must be assessed solely in the context of Article 107(3)(c) TFEU, and not in the light of an alleged previous decision-making practice of the Commission (see, to that effect, judgment of 26 October 2022, Siremar v Commission, T‑668/21, not published, EU:T:2022:677, paragraph 121 and the case-law cited).
74 Moreover, the applicant’s claims concerning the transactions that took place between AGW and the beneficiary and between Mr Pedrosa, through his companies, and the beneficiary are speculative. Those transactions, even if they were established, are not in themselves capable of demonstrating an arbitrary allocation of costs within the group to which the beneficiary belonged. In those circumstances, the Commission had no evidence requiring it, in accordance with the case-law cited in paragraphs 64 and 65 above, to go beyond a mere examination of the matters of fact and of law brought to its attention.
75 The present complaint must therefore be rejected.
– The third complaint, alleging a manifest error of assessment and errors of law relating to the finding that the beneficiary’s difficulties were too serious to be dealt with by the group itself
76 In the first place, the applicant argues that the Commission failed to take into account the capacity of AGW’S two individual shareholders – Mr Neeleman and Mr Pedrosa, who indirectly controlled the beneficiary through AGW and other intermediary companies – to contribute to the rescue of the beneficiary. The fact that, after the measure at issue was granted, AGW and the Portuguese Republic did not agree on the terms of the State loan and that AGW benefited from it to sell part of its shares to the Portuguese State shows that the shareholders were able to assist the beneficiary, but that that was not in their interest. By taking into account the lack of willingness on the part of those shareholders to contribute to the rescue of the beneficiary, the Commission infringed point 22 of the Guidelines.
77 In the second place, the applicant submits that the Commission’s finding that Mr Neeleman and Mr Pedrosa had themselves been seriously affected by the consequences of the COVID-19 pandemic because they owned companies in the transport sector has not been substantiated. First, the applicant claims that a reference to the problems caused by that pandemic is too vague to rule out the possibility that those shareholders had the opportunity to contribute, at least partially, to the rescue of the beneficiary. Second, the Commission implicitly excluded the possibility of a partial contribution by the other members of the group and merely found that the entire cash shortfall, estimated at EUR 1.2 billion, could not be made up by those shareholders. Third, the Commission did not carry out its own examination, but relied on the information submitted by the Portuguese Republic. It did not assess the financial resources of those shareholders, the funds they held, their net profits or the borrowing capacity of the group as a whole. To that end, the applicant refers to several press articles which show, in particular, that Mr Neeleman and Mr Pedrosa were prominent businessmen in the transport sector, capable of making large investments.
78 The Commission, supported by the Portuguese Republic, disputes the applicant’s arguments.
79 In that regard, in accordance with what has been stated in paragraph 42 above, it should be borne in mind that, according to point 22 of the Guidelines, a rescue aid measure may be granted to an undertaking belonging to a group of companies if its difficulties are too serious to be dealt with by the group itself.
80 In the present case, in paragraphs 122 to 127 of the contested decision, the Commission concluded that the beneficiary’s difficulties were too serious to be dealt with by the group. In that regard, the Commission found that Parpública was not in a position to assist the beneficiary as it had limited budgetary resources. Moreover, since the latter is a State undertaking, each contribution was automatically classified as State aid. The Commission considered that AGW was also unable to resolve the beneficiary’s difficulties, since it was a vehicle company with no economic activity of its own. It also follows from the information provided by the Portuguese Republic that the indirect individual shareholders of AGW, Mr Neeleman and Mr Pedrosa, were not in a position, even in part, to resolve the difficulties faced by the beneficiary. The amount of the measure at issue was substantial and the companies of the two shareholders were also active in the transport sector and also suffered significant reductions in revenue during the COVID-19 pandemic.
81 The applicant disputes the Commission’s finding, in paragraphs 126 and 127 of the contested decision, that Mr Neeleman and Mr Pedrosa, the indirect shareholders of the beneficiary, did not have the capacity to resolve the beneficiary’s difficulties.
82 However, it must be stated that the applicant has not adduced any evidence capable of calling that finding into question.
83 First, the Commission’s finding that Mr Neeleman and Mr Pedrosa owned companies in the transport sector, with the result that they themselves had been seriously affected by the aftermath of the COVID-19 pandemic and were unable to contribute to rescuing the beneficiary, in part or in full, is not seriously disputed by the applicant. It is a well-known fact that land and air transport companies faced an almost total cessation of their activities during the first period of the COVID-19 pandemic. It should also be noted that, at the time when the measure at issue was notified, the fate of transport companies was still uncertain.
84 Second, the Commission also took account of the scale of the rescue operation in question, which was so large that it would have been difficult for the shareholders to resolve the beneficiary’s problems. In that regard, the Commission rightly considered that partial support could not have prevented that beneficiary from exiting the market. In fact, given the beneficiary’s existing difficulties, which were aggravated by the very exceptional and sudden situation of the COVID-19 pandemic, only the financing of its entire liquidity needs could save it within a fairly short period of time. As the Commission argued at the hearing, even if the direct or indirect shareholders of AGW could have helped to resolve some of the beneficiary’s problems, rescue aid would still have been necessary in order to achieve the objective to keep that beneficiary in business for six months and to prevent its exit from the market for lack of liquidity.
85 Third, the Commission was entitled to rely on the information provided by the Portuguese Republic in connection with the notification of the measure at issue. As is apparent from the case-law cited in paragraph 65 above, the Commission is not required to seek, on its own initiative and in the absence of any evidence to that effect, all information which might be connected with the case before it, even where such information, such as the evidence relied on by the applicant, namely the beneficiary’s annual report and several websites and press articles, is in the public domain. The evidence referred to by the applicant is of a very general nature and gives at most an overall impression of the assets of Mr Neeleman and Mr Pedrosa and of their commercial activities in the land and air transport sector. That evidence therefore does not demonstrate with certainty the financial situation of those individuals at the time of authorisation of the measure at issue or their capacity to resolve the beneficiary’s financial difficulties.
86 The present complaint must therefore be rejected.
– The fourth complaint, alleging infringement of point 8 of the Guidelines
87 The applicant submits that the Commission infringed point 8 of the Guidelines. It claims, in essence, that the beneficiary, or the group to which it belongs, could have attempted to borrow money on the market. The applicant maintains that, according to the contested decision, the beneficiary was still able, in December 2019, despite its negative result, to attract investments amounting to EUR 375 million.
88 The Commission, supported by the Portuguese Republic, disputes those arguments.
89 According to point 8 of the Guidelines, set out in the introductory part of those guidelines, ‘undertakings should only be eligible for State aid when they have exhausted all market options’.
90 In the present case, in paragraphs 57 to 60 of the contested decision, the Commission referred to the financial consequences for the beneficiary of the extensive restrictions imposed by the COVID-19 pandemic. Paragraph 79 states that, despite the fact that the beneficiary was still able to raise funds in 2019, the rating agencies had steeply reduced its rating in the context of the COVID-19 pandemic.
91 It should be noted that the applicant has not disputed that the situation of the beneficiary had radically changed after the COVID-19 outbreak. Accordingly, it is apparent from paragraph 27 of the contested decision that, on 20 March 2020, the rating agency Standard & Poors had lowered the credit rating for eight airlines, including the beneficiary, without excluding further reductions in the near future. The same was true for other rating agencies. In addition, Standard & Poors had indicated recovery prospects of 45% in respect of the bonds issued in December 2019, amounting to EUR 375 million.
92 It should be noted that the exceptional circumstances linked to the COVID-19 pandemic had the inevitable effect of causing a deterioration in the investment climate in the aviation sector. The Commission’s position that it was virtually impossible to raise funds on the market is plausible. It is also necessary to take into account the nature of the aid, namely rescue aid which had to be granted as a matter of urgency and for a relatively short period, that is to say, a maximum of six months.
93 Furthermore, the applicant has not adduced any evidence to show that financing on the markets would have been possible for the beneficiary at the time of notification of the measure at issue despite the circumstances described in paragraphs 90 to 92 above.
94 In the light of the foregoing, the present complaint must be rejected and, consequently, the first plea must be rejected in its entirety.
The second plea in law, alleging infringement of Article 107(3)(c) TFEU
95 The applicant submits that, by misapplying Article 107(3)(c) TFEU, read in the light of the Guidelines, the Commission erred in its assessment, first, of the existence of an objective of common interest; second, of the appropriateness of the measure at issue; third, of the proportionality of that measure and; fourth, of the negative effects of that rescue aid.
– The first complaint, alleging that the Commission wrongly concluded that the measure at issue contributed to an objective of common interest
96 According to the applicant, the finding in the contested decision that the measure at issue contributed to an objective of common interest within the meaning of points 43 and 44 of the Guidelines is not sufficiently substantiated.
97 First, it is apparent from paragraph 132 of the contested decision that the Commission took into account the fact that the beneficiary was of a particular size and that its operations extended to most commercial airports in Portugal to conclude that its rescue constituted an objective of common interest. The Commission therefore erred in law. Moreover, previous decisions in the same sector, in particular the decision of 4 September 2017 on State aid SA.48937 (2017/N) – Germany – Rescue aid in favour of Air Berlin PCL & Co. Luftverkehrs KG, the decision of 14 October 2019 on State aid SA.55394 (2019/N) – Germany – Rescue aid to Condor and the decision of 24 February 2020, SA.56244 (2020/N) – Romania – Rescue aid to TAROM, included a more in-depth analysis. In those decisions, the Commission did not confine itself to examining the size of the beneficiary and the number of airports concerned.
98 Second, the applicant disputes the Commission’s finding that the failure of the beneficiary was likely to interrupt an important service which it was both hard to replicate and difficult to provide by a competitor instead of the beneficiary, in accordance with point 44(b) of the Guidelines. There is no evidence that TAP Air Portugal had a large number of bookings or passengers stranded abroad due to the containment measures and that they had to be repatriated during the period from July to December 2020. On the contrary, on account of the restrictive measures imposed by the authorities, there was an oversupply of flights on TAP Air Portugal’s routes over the relevant period. According to the applicant, the Commission did not properly explain how the criterion of difficulty in replicating an important service was satisfied in that context, marked by overcapacity likely to be prolonged for some time in the context of the COVID-19 crisis. In addition, several competitors already operated the same routes as TAP Air Portugal; competitors who could have provided the services of that company.
99 Third, the applicant submits that the Commission made an error of assessment in relation to point 44(c) of the Guidelines. The Commission failed to establish that TAP Air Portugal played an important systemic role in respect of the Portuguese territory as a whole and that its exit from the market would have serious negative consequences in Portugal. Thus, that airline’s impact on the economy and, more specifically, on tourism in Portugal was not demonstrated in the contested decision.
100 The Commission, supported by the Portuguese Republic, disputes those arguments.
101 It should be recalled at the outset that, according to the case-law, the Commission can declare aid compatible with Article 107(3) TFEU only if it contributes to the attainment of one of the objectives mentioned therein, something which, under normal market conditions, the recipient firms would not achieve by their own actions. In other words, an aid measure cannot be declared compatible with the internal market if it improves the financial situation of the recipient undertaking without being necessary for the attainment of the objectives specified in Article 107(3) TFEU (see, to that effect, judgment of 14 January 2009, Kronoply v Commission, T‑162/06, EU:T:2009:2, paragraph 65 and the case-law cited).
102 As regards, more specifically, the application of Article 107(3)(c) TFEU in the case of rescue aid, it follows from point 43 of the Guidelines that the mere fact of preventing an undertaking from exiting the market is not sufficient to justify the use of such aid. It must be demonstrated, in particular, that the aid pursues an objective of common interest in that its purpose is to avoid social hardship or address market failure.
103 In order to give concrete expression to the wording of point 43 of the Guidelines, point 44 thereof provides that the Member State must demonstrate that the failure of the beneficiary would be likely to involve serious social hardship or severe market failure. Point 44(a) to (g) of the Guidelines sets out seven examples of situations in which it is established that the aid pursues a common interest.
104 Those examples include, in point 44(b) of the Guidelines, the situation in which ‘there is a risk of disruption to an important service which is hard to replicate and where it would be difficult for any competitor simply to step in (for example, a national infrastructure provider)’. In that regard, it should be noted that the Guidelines do not provide any definition of the concept of ‘important service’ within the meaning of point 44(b) of those guidelines (judgment of 18 May 2022, Ryanair v Commission (Condor; rescue aid), T‑577/20, EU:T:2022:301, paragraph 74).
105 The mere fact that point 44(b) of the Guidelines refers ‘for example’ to ‘a national infrastructure provider’ does not in any way mean that the scope of that point is limited to services that are of importance at the national level or of importance to the entire economy of a Member State. In addition, it should be noted that point 44(b) of the Guidelines does not require that it is impossible to replicate an important service; it is sufficient that it is ‘hard’ to do so (see, to that effect, judgment of 18 May 2022, Ryanair v Commission (Condor; rescue aid), T‑577/20, EU:T:2022:301, paragraphs 76 to 84).
106 In addition, according to point 44(c) of the Guidelines, the failure of the beneficiary would be likely to involve serious social hardship or severe market failure if ‘the exit of an undertaking with an important systemic role in a particular region or sector [had] potential negative consequences (for example as a supplier of an important input)’.
107 In the present case, in paragraphs 129 to 134 of the contested decision, the Commission found that the measure at issue pursued the objectives set out in point 44(b) and (c) of the Guidelines.
108 The Commission noted in the contested decision that TAP Air Portugal provided connectivity within Portugal, in particular as regards the connection of mainland Portugal with its outermost regions, with Portuguese communities outside Portugal and with Portuguese-speaking countries. The flights concerned connected, first, the airports of Lisbon (Portugal) and Porto (Portugal), four islands in the Azores and Madeira (Portugal) and, second, 49 destinations in Europe outside Portugal, 10 destinations in Brazil, 17 destinations in Africa and 8 destinations in North America. In total, in 2019, TAP Air Portugal served 95 destinations in 38 countries and carried more than 17 million passengers. TAP Air Portugal provides not only passenger transport but also cargo transport on its network of routes. In addition, TAP Air Portugal supports the tourism sector, which accounted for 14.6% of Portugal’s gross national product (GNP) in 2018, and it alone generated 1.2% of Portugal’s gross domestic product (GDP) in 2019. The Commission found that, if the beneficiary had exited the market, it would have been even more difficult for a large number of undertakings in the tourism sector to overcome the consequences of the COVID-19 pandemic. The Commission also explained that, in view of the problems associated with the COVID-19 pandemic, the services of TAP Air Portugal could not have been provided in the short term by another operator and the connectivity of Portugal would no longer have been guaranteed. TAP Air Portugal is important for the Portuguese economy and, moreover, a significant employer with 10 000 direct employees and at least 110 000 indirect employees.
109 It follows from the foregoing that the Commission relied on a body of relevant and consistent evidence in order to conclude, correctly, that the services provided by TAP Air Portugal to ensure the connectivity of Portugal constituted an ‘important service’ within the meaning of point 44(b) of the Guidelines, and that the beneficiary played an ‘important systemic role’ in Portugal within the meaning of point 44(c) of those guidelines in view of its importance for the economy of that Member State.
110 The arguments put forward by the applicant are not such as to call that finding into question.
111 First, the applicant’s claim that the routes could have been operated by other airlines in a similar way has not been substantiated. That argument is unconvincing, given that the other airlines serving Portugal were even less able to provide those services, without risk of a significant disruption to routes, because they were also experiencing difficulties caused by the health crisis. For the same reason, the applicant’s argument that TAP Air Portugal’s services were not hard to provide by other companies in a context of reduced air traffic in general and overcapacity is not such as to call into question the plausibility of the considerations set out in the contested decision in that regard.
112 Second, contrary to what the applicant claims, it is apparent from the foregoing that the Commission did not only take into account, in particular in paragraph 132 of the contested decision, the size of the beneficiary and the airports served, but also other factors, including the geographical location of Portugal and the outermost territories, connectivity, the importance of TAP Air Portugal’s services for the economy, the fact that it also carried cargo and the fact that that company was not substitutable in the short term.
113 Third, in so far as the applicant refers to a previous decision-making practice of the Commission in order to claim that the latter should have carried out a more thorough analysis in the contested decision, it must be pointed out that that practice, even if it were different, cannot affect the legality of the contested decision.
114 In accordance with settled case-law, when assessing the measures at issue, the Commission must examine all the relevant features of the measures and their context. Thus, the legal basis of a given decision cannot be called into question on account of a change from the Commission’s earlier decision-making practice. Furthermore, the Court has already stated that the legality of a Commission decision that aid does not meet the conditions for the application of that derogation must be assessed solely in the context of Article 107(3)(c) TFEU, and not in the light of an alleged earlier practice (see judgment of 27 February 2013, Nitrogénművek Vegyipari v Commission, T‑387/11, not published, EU:T:2013:98, paragraph 126 and the case-law cited).
115 In the light of the foregoing, the first complaint of the second plea in law must be rejected.
– The second complaint, alleging an error of assessment as regards the appropriateness of the measure at issue
116 The applicant claims that the Commission wrongly found that the measure at issue was appropriate.
117 In the first place, the applicant claims that Commission did not apply the correct interest rate. According to point 56 of the Guidelines, the interest rate should not be less than the reference rate set out in the Reference Rate Communication for weak undertakings offering normal levels of collateralisation (currently the one-year Interbank Offered Rate (IBOR) plus 400 basis points). The Commission used that rate. However, according to the applicant, the beneficiary did not offer normal levels of collateralisation, unlike the beneficiaries concerned by the decisions relating to Air Berlin, TAROM and Condor (see paragraph 97 above). Moreover, it was clear from the outset that the loan in question would not be repaid within the six-month period stipulated and therefore carried additional risks.
118 In the second place, the applicant submits that the duration of the measure at issue was too long and that the Commission should have asked the beneficiary to provide a restructuring plan in accordance with point 55(d)(ii) of the Guidelines within a shorter period than the six months chosen. The Commission should have understood that the loan would not be repaid within a six-month period, from the date of the first aid payment. In addition, it failed to take into account the fact that all competitors were also faced with the consequences of the pandemic, such that the measure at issue significantly distorted competition. In any event, the Commission did not state in the contested decision that the authorisation of the measure at issue was not going to be extended beyond six months. The applicant emphasises, providing supporting examples, that the Commission’s approach to time frames was stricter in certain previous decisions, in particular those adopted in the midst of the banking crisis in 2008.
119 The Commission, supported by the Portuguese Republic, disputes those arguments.
120 According to point 54 of the Guidelines, Member States should ensure that aid is awarded in the form that allows the objective to be achieved in the least distortive way. In the case of undertakings in difficulty, that can be achieved by ensuring that aid is in the appropriate form to address the beneficiary’s difficulties.
121 Point 55 of the Guidelines lists the conditions which rescue aid must satisfy in order to be authorised by the Commission. First of all, it is important that the rescue aid measure is limited in time. In that regard, point 55(d)(ii) of the Guidelines provides, inter alia, that Member States must undertake to communicate to the Commission, within a maximum period of six months, either proof that the loan has been repaid in full or, provided that the beneficiary can be described as an undertaking in difficulty, a restructuring plan as set out in section 3.1.2 of the Guidelines. Upon submission of such a plan, the authorisation of the rescue aid will be automatically extended until the Commission takes a final decision on the restructuring plan, unless it decides that such an extension is not justified or should be limited in time or scope.
122 Point 56 of the Guidelines provides as follows:
‘The level of remuneration that a beneficiary is required to pay for rescue aid should reflect the underlying creditworthiness of the beneficiary, discounting the temporary effects of both liquidity difficulties and State support, and should provide incentives for the beneficiary to repay the aid as soon as possible. The Commission will therefore require remuneration to be set at a rate not less than the reference rate set out in the Reference Rate Communication for weak undertakings offering normal levels of collateralisation (currently 1-year IBOR plus 400 basis points) and to be increased by at least 50 basis points for rescue aid the authorisation of which is extended in accordance with point 55[(d)(ii)].’
123 In the present case, it is apparent from the contested decision that the measure at issue was temporary and that the Portuguese Government had promised to submit a restructuring plan within six months of the grant of the aid. The loan interest rate was at least equal to the reference rate referred to in point 56 of the Guidelines. The Portuguese Government undertook to use the amount of the loan solely in order to resolve the liquidity problem. The Commission concluded that the measure at issue was appropriate within the meaning of points 54 to 57 of the Guidelines.
124 In that connection, in the first place, as regards the interest rate applied to repayment of the measure at issue, it is not disputed between the parties that the interest rate attached to the loan in question is equivalent to or higher than the reference rate referred to in point 56 of the Guidelines and is not below the threshold imposed. Contrary to what the applicant submits, it is clear from that point of the Guidelines that there is no need to increase that rate before any extension of the aid. Given that the Commission was not in a position to foresee whether the Portuguese Republic was going to submit a restructuring plan before the expiry of the deadline, the applicant cannot criticise it for not having increased the rate at the time when the contested decision was adopted, on the ground that the chances of repayment after the six-month period were minimal.
125 It is true that point 56 of the Guidelines requires that ‘remuneration … be set at a rate not less than the reference rate set out in the Reference Rate Communication for weak undertakings offering normal levels of collateralisation’. However, as the Commission has pointed out, the threshold referred to in point 56 of the Guidelines applies irrespective of the collateral provided to the State concerned by the undertaking in difficulty. It should be noted that, in the present case, the rate applied complies with the threshold laid down in point 56 of the Guidelines.
126 In the second place, as regards the period within which a restructuring plan had to be submitted, it follows from the wording of point 55(d) of the Guidelines, which was summarised in paragraph 121 above, that, although a Member State may set a shorter period for rescue aid, the Commission cannot lawfully oblige it to do so. Moreover, the six-month period is intended, as stated in point 60 of the Guidelines, to enable the beneficiary to restore its liquidity and draw up, where appropriate, a restructuring or liquidation plan (see, to that effect, judgment of 29 March 2023, Wizz Air Hungary v Commission (Blue Air; COVID-19 and rescue aid), T‑142/21, EU:T:2023:164, paragraph 106 (not published)).
127 As regards the applicant’s claim that the Commission should have known, or at least suspected, at the time of approving the aid measure at issue that the loan would not be repaid within the six-month period, it should be noted that that claim is based on articles published in the media after the measure at issue had been authorised by the initial decision (Annexes A.3.12 and A.3.13 to the application), the analysis of the appropriateness of the measure at issue having been repeated in the contested decision.
128 The articles referred to in paragraph 127 above contain general points of view of the beneficiary’s management which cannot call into question the fact that the maximum duration of rescue aid is six months for the reasons set out in paragraph 126 above.
129 In those circumstances, there was nothing to oblige the Commission to derogate from the time limit laid down in point 55(d) of the Guidelines or to impose additional requirements on the Portuguese Republic which did not appear in that point. Accordingly, the Commission cannot be criticised for not having required the submission of a restructuring plan before the expiry of the six-month period, or for not having decided at the time of authorising the measure at issue, by adopting the initial decision, not to grant an extension of the authorisation of the measure at issue beyond six months.
130 The second complaint of the second plea in law must therefore be rejected.
– The third complaint, alleging several errors of assessment as regards the proportionality of the measure at issue
131 The applicant refutes the Commission’s assertion that the measure at issue did not go beyond the minimum needed to attain the objective of common interest.
132 First, it submits that undertakings such as the beneficiary, which were already in difficulty on 31 December 2019, were excluded from the scope of the Communication from the Commission 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) and amended on 3 April 2020 (OJ 2020 C 112 I, p. 1; ‘the Temporary Framework’). Accordingly, the support for the Portuguese Republic’s economy amid the COVID-19 pandemic was not part of the common objective of general interest, having regard also to the wording of point 23 of the Guidelines. Only a small proportion of the beneficiary’s liquidity needs was due to TAP Air Portugal’s difficulties prior to COVID-19.
133 Second, the applicant argues that the amount of the measure at issue appears to exceed the beneficiary’s liquidity needs. That is apparent, first of all, from the statements in the media made by the Portuguese Minister for Infrastructure and Housing, from which it is apparent, inter alia, that the aid would enable TAP Air Portugal to operate even beyond the end of the year.
134 Third, the applicant maintains that the Commission did not correctly assess the nature of the beneficiary’s earlier commitments. Those commitments included investment related to the large-scale replacement of part of TAP Air Portugal’s fleet. The fact that that commitment was maintained, despite the liquidity problems, enabled the beneficiary to use the aid granted to finance structural measures. That investment was not strictly necessary for the survival of the beneficiary in the period from July to December 2020.
135 Fourth, the applicant claims that the measure at issue should be classified as a structural measure, and not as rescue aid, given that it would have been unlikely, if not impossible, for the beneficiary to repay the loan within the six-month period and it had not provided any collateral in that regard. It follows from point 65 of the Guidelines that, in order to be proportionate, an aid measure intended to cover losses must be granted only on terms which involve adequate burden sharing by existing investors. However, the contested decision makes no mention of the existence of such burden sharing.
136 The Commission, supported by the Portuguese Republic, disputes those arguments.
137 As regards the proportionality of rescue aid, point 60 of the Guidelines provides as follows:
‘Rescue aid must be restricted to the amount needed to keep the beneficiary in business for six months. In determining that amount, regard will be had to the outcome of the formula set out in Annex I. Any aid exceeding the result of that calculation will only be authorised if it is duly justified by the provision of a liquidity plan setting out the beneficiary’s liquidity needs for the coming six months.’
138 First, it should be noted that point 14 of the Temporary Framework provides that Member States ‘can notify to the Commission aid schemes to meet acute liquidity needs and support undertakings facing financial difficulties, also due to or aggravated by the COVID-19 outbreak’ on the basis of Article 107(3)(c) TFEU and as stated in the Guidelines.
139 It follows that the Temporary Framework also does not preclude the grant of aid on the basis of Article 107(3)(c) TFEU where those difficulties were caused or aggravated by the COVID-19 pandemic.
140 In addition, it follows from the Guidelines that the purpose of rescue aid measures is to avoid social hardship or address market failure, irrespective of the origin of the difficulties of the undertaking concerned.
141 Furthermore, it has already been held that it could not be ruled out that a number of aid measures might be adopted by a Member State on the basis of various derogations provided for in Article 107(2) or (3) TFEU in respect of the same event, such as the COVID-19 pandemic (see, to that effect, judgment of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraphs 50 and 51 and the case-law cited).
142 Second, it is true that the Commission neither referred nor commented in the contested decision on the statements in the media made by the Portuguese Minister for Infrastructure and Housing relied on by the applicant. However, given that the examination carried out by the Commission of the compatibility of the measure at issue with the internal market is based on a specific, quantified and verifiable assessment of the conformity of that measure with the requirements laid down in the Guidelines, statements made in the media cannot be of decisive importance in the analysis of the proportionality of the measure at issue (see, by analogy, judgment of 10 May 2023, Ryanair and Condor Flugdienst v Commission (Lufthansa; COVID-19), T‑34/21 and T‑87/21, under appeal, EU:T:2023:248, paragraph 206).
143 In any event, those statements do not call into question the liquidity needs, but reflect the fact that the liquidity plan is based on a prospective analysis drawn up in the context of an unprecedented and uncertain situation. In his statement reported on 15 July 2020, the Portuguese Minister for Infrastructure and Housing stated that, ‘given the information available today, the volume of the public aid package [was] sufficient’. He stated that he was not sure whether ‘more or less’ aid would be needed than was provided for by the aid measure at issue. In his statement reported on 9 July 2020, the Minister explained that ‘[his department had arrived] with TAP and the … Commission at a value based on the forecasts and results of TAP itself, which [gave] … the guarantee that [they had] a gap here from the point of view of liquidity to operate, to work, even beyond the end of the year and that [that was] what [they were] working on’. It cannot be inferred from those statements that the liquidity needs set out in the liquidity plan were overestimated.
144 As regards the planned amount of the loan in question, it is apparent from the contested decision that that amount was based on the liquidity plan drawn up by the Portuguese Republic. The Commission assessed that plan, which was based on revenue and cost projections that were part of the uncertainty that prevailed at the time regarding all projections about an airline’s activities. It found that the liquidity plan did not include uncommon or illegitimate expenses such as the financing of structural measures or the expansion of activities beyond earlier commitments. The applicant does not put forward any argument capable of casting doubt on the plausibility of that liquidity plan other than the statements in the media referred to in paragraph 142 above.
145 Third, it should be noted that, according to point 60 of the Guidelines, rescue aid must be limited to the amount necessary to keep the beneficiary in business for six months. However, as the Commission has argued, it cannot be ruled out that the need for liquidity during those six months also includes the payment of instalments due during that period under earlier commitments concerning the replacement of aircraft. The non-repayment of such instalments could lead to the insolvency of the undertaking in difficulty, which would clearly run counter to the objective pursued (judgment of 29 March 2023, Wizz Air Hungary v Commission (Blue Air; COVID-19 and rescue aid), T‑142/21, EU:T:2023:164, paragraph 125). The applicant’s argument is therefore unfounded.
146 Fourth, point 65 of the Guidelines provides for measures to share the burden among existing investors during the restructuring phase. Therefore, those measures are not applicable to rescue aid, such as the measure at issue.
147 Therefore, the third complaint of the second plea in law must be rejected.
– The fourth complaint, alleging an error of assessment and an error of law as regards the negative effects of the measure at issue
148 The applicant argues that the contested decision does not include a full assessment of the negative effects of the measure at issue on competition, in breach of Article 107(3)(c) TFEU and the Guidelines. It claims that the Commission simply set out that the ‘one time, last time’ principle and the conditions laid down in the Guidelines on previous unlawful aid were complied with. In particular, the Commission did not include among the negative effects the discriminatory nature of the measure at issue. The aid measure benefited only TAP Air Portugal, whereas the health crisis affected all airlines, which is why the aid had a negative effect on competition and trade within the European Union.
149 The Commission, supported by the Portuguese Republic, disputes those arguments.
150 It follows from Article 107(3)(c) TFEU that ‘aid to facilitate the development of certain economic activities or of certain economic areas, where such aid does not adversely affect trading conditions to an extent contrary to the common interest’ may be considered to be compatible with the internal market. The wording of that provision requires the favourable and unfavourable effects of an aid measure to be weighed against each other.
151 It should be recalled, at the outset, that the Commission enjoys a wide discretion in the application of Article 107(3) TFEU (judgment of 8 March 2016, Greece v Commission, C‑431/14 P, EU:C:2016:145, paragraph 68 and the case-law cited). In the specific case of rescue aid, it limited itself in the exercise of that discretion in that regard by adopting the Guidelines, from which it cannot, in principle, depart (see, to that effect, judgment of 8 March 2016, Greece v Commission, C‑431/14 P, EU:C:2016:145, paragraph 69 and the case-law cited).
152 As regards the Guidelines, it should also be noted that, in the present case, the applicant has not called into question their legality under Article 107(3)(c) TFEU. Nor has the applicant disputed that the measure at issue can be regarded as rescue aid within the meaning of the Guidelines. In those circumstances, it must be held that the examination of the compatibility of the aid measure at issue with the common market could be carried out in the light of those guidelines (see, to that effect, judgment of 17 July 2014, Westfälisch-Lippischer Sparkassen- und Giroverband v Commission, T‑457/09, EU:T:2014:683, paragraphs 209 to 211).
153 Point 38 of the Guidelines sets out the criteria to be applied when examining the compatibility of the aid measure at issue with the common market. Those criteria include, in point 38(f) of those guidelines, ‘avoidance of undue negative effects on competition and trade between Member States[, in the sense that] the negative effects of aid must be sufficiently limited, so that the overall balance of the measure is positive’. As the Commission stated in paragraphs 147 and 148 of the contested decision, it considers that to be the case, for rescue aid, if, first, the beneficiary concerned has no recurring difficulties that could not be resolved by the grant of an earlier rescue or restructuring aid measure (point 71 of the Guidelines) and, second, that beneficiary does not receive unlawful aid which it has ordered to be recovered (point 94 of the Guidelines).
154 The criterion set out in point 38(f) of the Guidelines is developed in more detail in section 3.6 of those guidelines, entitled ‘Negative effects’. That section contains three subsections which concern rescue aid, subsection 3.6.1 of which, entitled ‘“One time, last time” principle’, and subsection 3.6.3, entitled ‘Recipients of previous unlawful aid’. It was for the Commission to verify that the conditions set out in those two subsections, in particular in points 71 and 94, were met. The Commission considered that to be the case, which the applicant has not disputed. In those circumstances, the applicant cannot complain that the Commission carried out an incomplete examination of the negative effects of the aid measure at issue.
155 The applicant’s argument that the aid measure at issue is discriminatory and that the Commission did not take into account the negative effects of that alleged discrimination on the common market will be analysed in the context of the third plea.
156 Accordingly, the fourth complaint of the second plea in law and, therefore, that plea in its entirety must be rejected.
The third plea in law, alleging breach of the principles of non-discrimination, freedom to provide services and freedom of establishment
157 The applicant submits, in essence, that the Commission breached the principle of non-discrimination and the principles of the freedom to provide services and the freedom of establishment on the ground that the measure at issue benefits only the beneficiary.
158 The Commission, supported by the Portuguese Republic, disputes the applicant’s arguments.
159 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).
– Breach of the principle of non-discrimination
160 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).
161 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).
162 Moreover, it should be recalled 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, 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).
163 The applicant submits, in essence, that the contested decision authorises discriminatory treatment which is neither appropriate nor necessary to achieve the objective of the measure at issue. It argues that at no time did the Commission examine the need to grant the aid only to the beneficiary. The other airlines have a significant market share of 76.3% of all domestic and international air traffic in Portugal in terms of passengers. The applicant itself has a market share of 20% in Portugal. According to the applicant, the aid goes beyond what is necessary in order to achieve its objective since the beneficiary receives 100% of the aid even though it ensures only 26.4% of Portugal’s connectivity. It highlights the fact that, in that regard, the allocation of aid to all airlines operating in Portugal according to their market share would have enabled the same objective to be achieved.
164 In that regard, first of all, it should be borne in mind that the classification of a national measure as ‘State aid’, within the meaning of Article 107(1) TFEU, requires, inter alia, that that measure confers a selective advantage on the recipient while distorting or threatening to distort competition (judgments of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 101, and of 23 November 2023, Ryanair v Commission, C‑210/21 P, EU:C:2023:908, paragraph 32). In particular, the requirement of selectivity arising from Article 107(1) TFEU presupposes that the Commission will establish that the economic advantage, understood in the broad sense, arising directly or indirectly from a particular 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 (judgments of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 103, and of 23 November 2023, Ryanair v Commission, C‑210/21 P, EU:C:2023:908, paragraph 34).
165 Nonetheless, State aid granted for the purposes of and in accordance with the conditions laid down by Article 107(3)(c) TFEU is compatible with the internal market. It follows that, unless that provision is to be deprived of all practical effect, State aid which is granted 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 for effects 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 (see, to that effect, judgment of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraphs 106 and 107; and see also, by analogy, judgment of 23 November 2023, Ryanair v Commission, C‑210/21 P, EU:C:2023:908, paragraphs 35 and 36).
166 Therefore, aid cannot be considered incompatible with the internal market for reasons that are solely linked to whether it is selective or distorts or threatens to distort competition (judgments of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 108, and of 23 November 2023, Ryanair v Commission, C‑210/21 P, EU:C:2023:908, paragraph 37).
167 Admittedly, 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 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 109, and of 23 November 2023, Ryanair v Commission, C‑210/21 P, EU:C:2023:908, paragraph 38).
168 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 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 110, and of 23 November 2023, Ryanair v Commission, C‑210/21 P, EU:C:2023:908, paragraph 39).
169 Since Article 107(3)(c) 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 (see, to that effect, judgments of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 111, and of 23 November 2023, Ryanair v Commission, C‑210/21 P, EU:C:2023:908, paragraph 40).
170 It follows that, in the present case, it is necessary to examine only whether the difference in treatment brought about by the measure at issue is permitted under Article 107(3)(c) TFEU.
171 In that connection, as regards, in the first place, the objective of the measure at issue, the applicant does not dispute that the beneficiary was an undertaking in difficulty and that that measure was intended to cover the beneficiary’s urgent liquidity needs, resulting, in particular, from the heavy operating losses it had incurred as a result of the COVID-19 pandemic and thus to enable it to continue its activities while drawing up a viable restructuring plan. There was therefore an urgent need on the part of the beneficiary and its situation was objectively different from that of other airlines on the Portuguese market, such as the applicant.
172 As regards, in the second place, the conditions for granting the measure at issue, it has not been established, as is apparent from the analysis of the second plea, that the Commission infringed Article 107(3)(c) TFEU or the Guidelines. More specifically, the Commission rightly considered that the measure at issue pursued an objective of common interest, in accordance with the analysis set out in paragraphs 101 to 115 above. In addition, it did not make an error of assessment as regards the appropriateness and proportionality of the measure at issue and the negative effects of that measure on the internal market.
173 Moreover, the applicant has not established that dividing the amount of the aid at issue among all the airlines present in Portugal would have been more effective in achieving the objective pursued by the measure at issue. Moreover, only undertakings in difficulty, like the beneficiary, could benefit from rescue aid.
174 It follows that the measure at issue does not breach the principle of non-discrimination.
– Breach of the freedom to provide services and freedom of establishment
175 The applicant submits that the Commission should have determined, when assessing the compatibility of the measure at issue, whether the form of the aid granted in the present case complied with the principle of the freedom to provide services and the freedom of establishment. By failing to do so, the Commission erred in law. The applicant claims that reserving the aid solely to the beneficiary restricts the right granted to EU carriers by the EU operating licence system established by 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), in other words, the right of those carriers freely to provide air transport services within the internal market. The contested decision entails an unjustified restriction of the principles of the freedom to provide services and freedom of establishment.
176 The Commission, supported by the Portuguese Republic, disputes those arguments.
177 In that regard, as pointed out in paragraph 167 above, the procedure under Article 108 TFEU must never produce a result which 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 (judgment of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 131).
178 However, the Court has already held that 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).
179 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 judgment of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 133 and the case-law cited).
180 In the present case, the choice of Transportes Aéreos Portugueses as the beneficiary of the measure at issue is part of the objective of that measure, namely to keep the beneficiary in operation for six months and, in any event, even if that choice were to be regarded as a condition of that measure, the applicant does not dispute that such a condition is inextricably linked to that objective. It follows that the effect of the choice of Transportes Aéreos Portugueses as the beneficiary of the measure at issue on the internal market 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 (see, to that effect, judgment of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 134).
181 In any event, while it is true that the measure at issue relates to individual aid, namely rescue aid, which benefits only Transportes Aéreos Portugueses, the applicant has not shown how that exclusive character is such as to deter it from providing services from Portugal and to Portugal, or from exercising its freedom of establishment in that Member State. In particular, it fails to identify the matters of fact or of law which cause the measure at issue to produce restrictive effects that go beyond those which trigger the prohibition in Article 107(1) TFEU, but which are nevertheless necessary and proportionate to cover the beneficiary’s urgent liquidity needs in order to avoid its exit from the market, in accordance with Article 107(3)(c) TFEU, read in the light of the Guidelines.
182 Consequently, the measure at issue cannot constitute a barrier to the freedom of establishment or to the freedom to provide 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 freedom to provide services.
183 This part of the plea must therefore be rejected, as must, therefore, the third plea in its entirety.
The fourth plea in law, alleging infringement of Article 108(2) TFEU
184 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 in law. That is proof of serious difficulties which should have led the Commission to open the formal investigation procedure and to allow the applicant to submit its comments.
185 The Commission, supported by the Portuguese Republic, disputes the applicant’s arguments.
186 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, 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 Regulation 2015/1589 (see judgment of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 143 and the case-law cited).
187 It is for the person making such a claim to show that there were doubts concerning that compatibility, meaning that the Commission was required to initiate the formal investigation procedure under Article 108(2) TFEU. 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 judgment of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 144 and the case-law cited).
188 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 (see judgment of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 145 and the case-law cited).
189 In the present case, it is true that, as the applicant claims, in essence, if it succeeded in demonstrating that the Commission had encountered serious difficulties in assessing the compatibility of the measure at issue, the contested decision should be annulled on that ground alone, even though the applicant had not established, moreover, that the Commission’s assessments as to substance were wrong in law or in fact (see, to that effect, judgment of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 146 and the case-law cited).
190 In order to demonstrate that the Commission encountered such difficulties, the applicant may indeed rely on the assessments on which the Commission relied and, therefore, put forward arguments relating to the merits of the contested decision, even if the examination of those arguments would not lead to the conclusion that the Commission’s assessments as to substance were wrong in fact or in law (see, to that effect, judgment of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 147 and the case-law cited).
191 However, it must be stated that the present plea relies, in essence, on the incomplete and insufficient nature of the examination carried out by the Commission during the preliminary examination procedure and on the different assessment of the compatibility of the measure at issue at which the Commission would have arrived following a formal investigation procedure. It is apparent from the applicant’s written submissions to the Court that, in support of the present plea, the applicant has essentially either repeated in a condensed manner arguments put forward in the context of the first three pleas in the action, relating to the merits of the contested decision, or referred to those arguments.
192 In those circumstances, since the Court has examined the substance of the first, second and third pleas, including the arguments alleging that the examination carried out by the Commission was incomplete and insufficient, it is not required to assess separately the merits of the present plea, since, by that plea, the applicant has not put forward specific evidence capable of demonstrating that the Commission encountered serious difficulties in assessing the compatibility of the measure at issue with the internal market (see, to that effect, judgment of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 149).
193 It follows from the foregoing that the fourth plea in law must be rejected.
The fifth plea in law, alleging breach of the duty to state reasons
194 The applicant claims, in essence, that the Commission’s reasoning in the contested decision is either non-existent or contradictory.
195 First, the applicant submits that the Commission’s finding that the beneficiary’s difficulties were intrinsic is not based on a full examination and did not take into account all the information relating to the relationship between the beneficiary’s individual indirect shareholders and the beneficiary, and it did not verify whether the members of the group had allocated costs arbitrarily. The same is true of the examination of the capacity of those shareholders to help resolve, at least in part, the beneficiary’s difficulties.
196 Second, according to the applicant, the Commission merely cited the relevant points of the Guidelines without further reasoning, for example as regards the question whether the measure at issue pursued an objective of common interest.
197 Third, the applicant claims that the Commission also failed to assess whether the aid was non-discriminatory and complied with the principles of the freedom to provide services and freedom of establishment.
198 The Commission, supported by the Portuguese Republic, disputes those arguments.
199 It should be borne in mind that, according to settled case-law, the statement of reasons required by 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 measure, in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent court 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 go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements 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 (see judgment of 8 September 2011, Commission v Netherlands, C‑279/08 P, EU:C:2011:551, paragraph 125 and the case-law cited).
200 First of all, it should be noted that, as is apparent from paragraphs 47 to 57, 62 to 75, 79 to 86 and 89 to 94 above in the context of the examination of the first plea, the Commission stated to the requisite legal standard the reasons for the finding that the beneficiary was eligible for rescue aid pursuant to the Guidelines.
201 Next, it follows, in essence, from the examination of the second plea in law that the Commission, in the contested decision, sufficiently set out the reasons why it had considered that the measure at issue pursued an objective of common interest (see paragraphs 101 to 115 above), was appropriate (see paragraphs 120 to 130 above), was proportionate (see paragraphs 137 to 147 above) and that it examined the negative effects of the measure at issue in accordance with the Guidelines (see paragraphs 150 to 156 above). It follows that the Court has been able to exercise its power of review within the meaning of the case-law cited in paragraph 199 above. There can therefore be no question of a failure to state reasons in that regard.
202 Finally, it must be held that the contested decision contains the matters, referred to in particular in paragraphs 108, 111 and 112 above, which make it possible to understand the reasons why the Commission considered that the Portuguese Republic could grant the aid at issue only to the beneficiary. Those matters show the role of the beneficiary in the connectivity of Portugal and Portuguese-speaking countries and its importance for the Portuguese tourism sector. Furthermore, as is apparent from paragraphs 177 to 183 above, the Commission was not required to examine the compatibility of that aid with the freedom of establishment and the freedom to provide services.
203 The fifth plea in law must therefore be rejected and the action must be dismissed in its entirety.
Costs
204 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 incurred by the Commission, in accordance with the form of order sought by the latter.
205 In addition, in accordance with Article 138(1) of the Rules of Procedure, the Portuguese Republic must bear its own costs.
On those grounds,
THE GENERAL COURT (Seventh 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 Portuguese Republic to bear its own costs.
Kowalik-Bańczyk
Buttigieg
Hesse
Delivered in open court in Luxembourg on 5 February 2025.
