Action brought on 18 April 2016 — Ryanair and Airport Marketing Services v Commission

(Case T-165/16)

(2016/C 222/30)

Language of the case: English

Parties

Applicants: Ryanair Ltd (Dublin, Ireland), Airport Marketing Services Ltd (Dublin) (represented by: G. Berrisch, E. Vahida and I. Metaxas-Maragkidis, lawyers, and B. Byrne, Solicitor)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

—	annul Articles 1(4), and 2 to 4 of European Commission Decision (EU) 2016/287 of 15 October 2014 on State aid SA.26500 - 2012/C (ex 2011/NN, ex CP 227/2008) implemented by Germany for Flugplatz Altenburg-Nobitz GmbH and Ryanair Ltd (OJ 2016 L 59, p. 22); and

—	order the Commission to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on four pleas in law.

First plea in law, alleging that the decision violates Article 41 of the EU Charter of Fundamental Rights, the principle of good administration, and the applicants’ rights of defence, as the Commission failed to allow the applicants to access the file of the investigation and to put them in a position where they could effectively make known their views.

2.	Second plea in law, alleging a breach of Article 107(1) TFEU, because the Commission has failed to establish selectivity.

Third plea in law, alleging a breach of Article 107(1) TFEU because the Commission erroneously concluded that the arrangements between the airport and the applicants conferred an advantage on the applicants. The Commission erroneously refused to accept the comparator analysis proposed by the applicants and committed manifest errors of assessment and a failure to state reasons in its profitability analysis, by failing to attribute an appropriate value to the marketing services provided under the marketing services agreements; wrongly dismissing the rationale behind the airport’s decision to purchase marketing services; erroneously dismissing the possibility that part of the marketing services may have been purchased for general interest purposes; basing its conclusions on incomplete, unreliable and inappropriate data for its calculation of profitability; and wrongly disregarding the wider benefits of the airport’s Airport Services Agreement with Ryanair.

Fourth plea in law, alleging, on a subsidiary basis, a breach of Articles 107(1) and 108(2) TFEU, in that the Commission committed a manifest error of assessment and an error of law by finding that the aid to Ryanair and AMS was equal to the cumulated marginal losses of the airport (as calculated by the Commission) instead of the actual benefit to Ryanair and AMS. The Commission should have examined the extent to which the alleged benefit had actually been passed on to Ryanair’s passengers. Further, it failed to quantify any competitive advantage that Ryanair enjoyed through the alleged aid, and it failed to explain properly why the recovery of the amount of aid specified in the decision was necessary to ensure the re-establishment of the situation prior to the grant of the aid.