Judgment of the Court (Second Chamber) of 21 November 2013 (request for a preliminary ruling from the Oberlandesgericht Koblenz — Germany) — Deutsche Lufthansa AG v Flughafen Frankfurt-Hahn GmbH

(Case C-284/12) (1)

(State aid - Articles 107 TFEU and 108 TFEU - Benefits granted by a public airport operator to a low-cost airline - Decision to initiate a formal investigation procedure in respect of that measure - Obligation of Member States’ courts to abide by the Commission’s assessment in that decision concerning the existence of aid)

2014/C 39/08

Language of the case: German

Referring court

Oberlandesgericht Koblenz

Parties to the main proceedings

Applicant: Deutsche Lufthansa AG

Defendant: Flughafen Frankfurt-Hahn GmbH

Intervener in support of the defendant: Ryanair Ltd

Re:

Request for a preliminary ruling — Oberlandesgericht Koblenz — Interpretation of Articles 107(1) TFEU and 108(3) TFEU and Article 2(b)(i) of Commission Directive 2006/111/EC of 16 November 2006 on the transparency of financial relations between Member States and public undertakings as well as on financial transparency within certain undertakings (OJ 2006 L 318, p. 17) — State aid — Benefits granted by a public airport operator to a low-cost airline — Commission decision to carry out a formal investigation in respect of that aid — Possible obligation of Member States’ courts to abide by the Commission’s assessment concerning the selective nature of that aid

Operative part of the judgment

Where, in accordance with Article 108(3) TFEU, the European Commission has initiated the formal examination procedure under Article 108(2) TFEU with regard to a measure which has not been notified and is being implemented, a national court hearing an application for the cessation of the implementation of that measure and the recovery of payments already made is required to adopt all the necessary measures with a view to drawing the appropriate conclusions from an infringement of the obligation to suspend the implementation of that measure.

To that end, the national court may decide to suspend the implementation of the measure in question and order the recovery of payments already made. It may also decide to order provisional measures in order to safeguard both the interests of the parties concerned and the effectiveness of the European Commission’s decision to initiate the formal examination procedure.

Where the national court entertains doubts as to whether the measure at issue constitutes State aid within the meaning of Article 107(1) TFEU or as to the validity or interpretation of the decision to initiate the formal examination procedure, it may seek clarification from the European Commission and, in accordance with the second and third paragraphs of Article 267 TFEU, it may or must refer a question to the Court of Justice of the European Union for a preliminary ruling.

(1)  OJ C 273, 8.9.2012.