Case C‑453/19 P

Deutsche Lufthansa AG

v

European Commission

Judgment of the Court (Fourth Chamber), 15 July 2021

(Appeal – State aid – Aid for airports and airlines – Decision classifying the measures in favour of Frankfurt Hahn airport as State aid compatible with the internal market and finding no State aid in favour of airlines using that airport – Inadmissibility of an action for annulment – Fourth paragraph of Article 263 TFEU – Natural or legal person not directly and individually concerned by the decision at issue – Effective judicial protection)

1. Actions for annulment – Natural or legal persons – Concept of regulatory act within the meaning of the fourth paragraph of Article 263 TFEU – Any act of general application other than legislative acts – Decision of the Commission concerning individual aid – Not included

   (Art. 263, fourth para., TFEU)

   (see paragraph 32)

2. Actions for annulment – Natural or legal persons – Acts of direct and individual concern to them – Individual concern – Criteria – Decision of the Commission classifying certain measures as aid compatible with the internal market and finding that other measures do not constitute aid – Action brought by an undertaking which is a competitor of the undertaking in receipt of aid and has participated in the administrative procedure – Competitor undertaking not establishing a substantial effect on its position on the market in question – Inadmissibility

   (Art. 263, fourth para., TFEU)

   (see paragraphs 33, 37, 40)

3. Appeal – Grounds – Review by the Court of the assessment of the facts and evidence – Possible only where the clear sense of the evidence has been distorted

   (Art. 256(1), second subpara., TFEU; Statute of the Court of Justice, Art. 58, first para.)

   (see paragraph 46)

4. Actions for annulment – Natural or legal persons – Acts of direct and individual concern to them – Individual concern – Criteria – Burden of proof on the applicant – Scope

   (Art. 263, fourth para., TFEU)

   (see paragraphs 51‑65)

5. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Direct concern – Criteria – Decision of the Commission finding no State aid – Action brought by an undertaking which is a competitor of the undertaking in receipt of aid – Competitor undertaking not establishing that its right not to be subjected to distorted competition is directly affected – Inadmissibility

   (Art. 263, fourth para., TFEU)

   (see paragraphs 82, 83)

Résumé

Frankfurt Hahn airport is located in Germany, in Land Rheinland-Pfalz (‘the Land’), 115 km from Frankfurt Main airport. In 2001, in 2002 and between 2004 and 2009, Flughafen Frankfurt/Main GmbH (‘Fraport’) – the company operating Frankfurt Main airport – the Land and Land Hesse (Germany) participated in increases in the capital of Frankfurt Hahn airport.

From 1997 to 2004, the Land also paid direct grants to Frankfurt Hahn airport, inter alia in order to finance security checks. In 2001 and 2006, the Land approved the schedules of airport charges for Frankfurt Hahn airport. In 1999, 2002 and 2005, Frankfurt Hahn airport concluded individual agreements with the low-cost airline Ryanair concerning the airport charges payable by Ryanair.

By decision of 1 October 2014 ( 1 ) (‘the decision at issue’), the European Commission found that the capital increases in 2001 and 2004 in favour of Frankfurt Hahn airport and the direct grants by the Land constituted State aid compatible with the internal market. As regards the agreements concluded with Ryanair and the schedules of airport charges for Frankfurt Hahn airport, the Commission found that those measures did not constitute State aid.

Deutsche Lufthansa AG (‘the appellant’), an airline established in Germany whose main airport base is that of Frankfurt-am-Main, brought an action for annulment of that decision before the General Court, which dismissed it as inadmissible under the fourth paragraph of Article 263 TFEU. ( 2 ) Pursuant to that provision, any natural or legal person may, under the conditions laid down in the first and second paragraphs of Article 263 TFEU, institute proceedings against an act addressed to that person (‘the first situation’) or which is of direct and individual concern to them (‘the second situation’), and against a regulatory act which is of direct concern to them and does not entail implementing measures (‘the third situation’). After stating that the decision at issue was not addressed to the appellant, the General Court held that the appellant had failed to demonstrate that that decision, which could not be classified as a regulatory act, was capable of being of direct and individual concern to it.

The appellant brought an appeal against that judgment of the General Court before the Court of Justice, and that appeal has also been dismissed. In its judgment, the Court of Justice considers the conditions governing the admissibility of an action for annulment brought by a natural or legal person against a decision concerning State aid which has been adopted by the Commission and is not addressed to that person.

Findings of the Court

In support of its appeal, the appellant contended, in particular, that, in holding that it was not individually concerned by the decision at issue, the General Court had infringed the fourth paragraph of Article 263 TFEU.

In the appellant’s submission, the General Court erred in law by inferring that it was not individually concerned from an alleged failure of the aid covered by the decision at issue to have a substantial effect on its market position, whereas individual concern results directly from its status as a person intended to benefit from procedural guarantees in the formal investigation procedure in respect of that aid.

In that regard, the Court of Justice points out that individual concern within the meaning of the fourth paragraph of Article 263 TFEU is examined in the light of the criterion, relied upon by the appellant, relating to the protection of procedural rights only where the Commission declares aid compatible with the internal market without initiating the formal investigation procedure under Article 108(2) TFEU. In such a case, the persons intended to benefit from the procedural guarantees envisaged by that article may secure compliance therewith only if they are able to challenge that decision before the EU judicature.

Since the decision at issue was adopted after a formal investigation procedure under Article 108(2) TFEU, the mere fact that the appellant played an active role in that procedure is not sufficient for it to be held individually concerned by the decision bringing that procedure to an end. Thus, the appellant should have demonstrated that the decision at issue affected it by reason of certain attributes which were peculiar to it or by reason of circumstances in which it was differentiated from all other persons and, by virtue of those factors, distinguished it individually just as in the case of the person addressed. In addition to the undertaking in receipt of aid, competing undertakings have been recognised as being individually concerned by a Commission decision terminating the formal investigation procedure where they have played an active role in that procedure, provided that their position on the market is substantially affected by the aid which is the subject of the decision at issue.

As regards a substantial effect on its market position, the Court rejects, furthermore, the appellant’s argument that the burden of proof borne by it in that regard should have been relaxed since the Commission had concluded that there was no State aid. In accordance with settled case-law, the requirement of a substantial effect on the market is applicable in the same way both where the Commission concludes that the measures examined do not constitute aid and where they are so classified.

The Court finds, on the other hand, that the General Court erred in law in refusing to consider certain arguments put forward by the appellant for the purpose of demonstrating that there was a substantial adverse effect on its market position, on the ground that it had not provided more information as to the size or geographical scope of the market on which it considered that it had been substantially affected. It is apparent from the case-law of the Court of Justice that the substantial effect on an undertaking’s competitive position results not from a detailed analysis of the various competitive relationships on the market at issue, allowing the extent of the 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 effect on that position. In holding that information relating to the size and structure of the markets on which the appellant’s competitive position was said to be affected and to the competitors present on those markets was necessary in order to define the market or markets in the light of which the condition regarding a substantial effect on the competitive position had to be assessed, the General Court went beyond the requirements resulting from that case-law. However, in the light of the other grounds supporting the General Court’s conclusion that the appellant’s market position was not substantially affected, the Court of Justice rules that that error of law committed by the General Court is not such as to vitiate its conclusions as to the admissibility of the appellant’s action.

Finally, the Court of Justice confirms that the General Court was right in holding that the condition of admissibility that the applicant must be directly concerned by the act at issue is identical in the second and the third situations referred to in the fourth paragraph of Article 263 TFEU. The Court of Justice recalls, furthermore, that that condition always requires two cumulative criteria to be met, namely, first, the act must directly affect the legal situation of the person at issue and, second, it must leave no discretion to its addressees who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from the EU rules alone without the application of other intermediate rules.

( 1 ) Commission Decision (EU) 2016/789 of 1 October 2014 on the State aid SA.21121 (C29/08) (ex NN 54/07) implemented by Germany concerning the financing of Frankfurt Hahn airport and the financial relations between the airport and Ryanair (OJ 2016 L 134, p. 46).

( 2 ) Judgment of 12 April 2019, Deutsche Lufthansa v Commission (T‑492/15, EU:T:2019:252).