Judgment of the Court (Tenth Chamber) of 29 June 2023

Data

Court: Court of Justice

Case date: 29 juni 2023

Verdict

Judgment of the Court (Tenth Chamber) of 29 June 2023 –
TUIfly GmbH v Commission

(Case C‑763/21 P)⁽¹⁾

"(Appeal - State aid - Measures put into effect by the Republic of Austria for Klagenfurt airport, Ryanair and other airlines using that airport - Decision declaring the aid measures partially incompatible with the internal market - Article 107(1) TFEU - Private investor in a market economy - Ex ante incremental profitability analysis - Long-term profitability of the airport - Applicability - Article 107(3)(c) TFEU - Aid to facilitate the development of certain economic activities or of certain economic areas - Relevant assessment criterion for determining compatibility with the internal market - Profitability of the new air routes)"

1. Aid granted by a Member StateConceptAssessment according to the criterion of the private investorReasonableness of the operation for a private investor following a relatively long-term strategyAirport and marketing services agreements providing an advantage to an airlineAnalysis of the profitability of the agreementsAssessment carried out by limiting the time frame to the duration of the agreementsWhether permissible

(Art. 107(1) TFEU)

(see paragraphs 23-28, 36-39)

2. AppealGroundsIncorrect assessment of the facts and evidenceInadmissibilityReview by the Court of the assessment of the facts and evidencePossible only where the facts or evidence have been distortedReview by the Court of the legal classification given to the facts of the disputeWhether permissible

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

(see paragraphs 40, 41, 51, 52, 56, 61, 145, 146)

3. Action for annulmentGroundsLack of or inadequate statement of reasonsSeparate ground from the one concerning substantive legality

(Arts 263 and 296 TFEU)

(see paragraph 55)

4. Aid granted by a Member StateConceptAssessment according to the criterion of the private investorAssessment having regard to all factors relevant to the transaction at issue and its contextAccount taken of available information and foreseeable developments at the time the decision on the measure in question was takenComplex economic assessmentJudicial reviewLimits

(Art. 107(1) TFEU)

(see paragraphs 76-79)

5. Aid granted by a Member StateProhibitionExceptionsAid capable of benefiting from the derogation under Article 107(3)(c) TFEUConditionsIncentive effect and need for aidAirport and marketing services agreements providing an advantage to an airlineAgreements which bring about an improvement in the financial situation of the beneficiary undertaking without it being necessary to achieve the objectives specified in Article 107(3)(c) TFEUNot included

(Art. 107(3)(c) TFEU)

(see paragraphs 103-111, 119, 122-130)

6. Aid granted by a Member StateProhibitionExceptionsAid capable of being regarded as compatible with the internal marketAssessment in relation to Article 107(3)(c) TFEUTaking into account previous practiceNot included

(Art. 107(3)(c) TFEU)

(see paragraphs 120, 121)

Operative part

1. The appeal is dismissed;

2. TUIfly GmbH is ordered to pay the costs.