Case T-196/04 (Eighth Chamber, extended composition)Judgment as of Dec 17, 2008State aid regarding an agreements entered into by the Walloon Region and the Brussels South Charleroi airport with the claimantApplication of the private investor in a market economy test according to Art 87 ECTThe applicant, Ryanair Ltd, is Europe’s original and largest low fares airline. It has pioneered in Europe the ‘low cost’ business model, which involves minimising costs and maximising efficiency in all areas of its business so as to offer the lowest fares in every market and thereby attract high passenger volumes.At the beginning of November 2001 Ryanair entered into two separate agreements (‘the agreements at issue’), one with the Walloon Region, the owner of Charleroi Airport, the other with Brussels South Charleroi Airport (BSCA): [para 5 et seq]Granting Ryanair a reduction of some 50% as compared with the regulatory level of landing charges and undertook to compensate Ryanair for any loss of profit arising directly or indirectly from any change by decree or regulation of airport charges or opening hours;Undertaking to base between two and four aircraft at Charleroi Airport and to operate, over a fifteen-year period, at least three rotations a day per aircraf and also undertaking, in the event of its ‘substantial withdrawal’ from the airport, to reimburse all or part of the payments made by BSCAThose measures were not notified to the Commission. [para 10]On 12 February 2004, having analysed the comments of the interested parties and of the Kingdom of Belgium, the Commission adopted Decision 2004/393/EC concerning advantages granted by the Walloon Region and Brussels South Charleroi Airport to the airline Ryanair in connection with its establishment at Charleroi (OJ 2004 L 137, p. 1) [para 12]The Commission concluded that ‘the advantages granted to Ryanair by the Walloon Region and by BSCA are State aid according to Art 87 para 1 ECT. The Commission essentially concludes that the aid granted by the Walloon Region is incompatible with the common market and furthermore that the Commission considers that aid for the opening of new routes, where the amount does not exceed 50% of the start-up costs and the duration is less than five years, is compatible with the common market. [para 17 et seqq]The Court of First Instance of the European Communities annuled the Commission Decision in dispute 2004/393/EC of Feb 12, 2004 on the grounds, thatWhile it is clearly necessary, when the State acts as an undertaking operating as a private investor, to analyse its conduct by reference to the private investor principle, application of that principle must be excluded in the event that the State acts as a public authority. [para 85]It must be held that the actions of the Walloon Region were economic activities. The fixing of the amount of landing charges and the accompanying indemnity is an activity directly connected with the management of airport infrastructure, which is an economic activity. [para 88]In light of all of the foregoing, it must be concluded that the Commission’s refusal to examine together the advantages granted by the Walloon Region and by BSCA and to apply the private investor principle to the measures adopted by the Walloon Region in spite of the economic links binding those two entities is vitiated by an error in law. [para 102]Consequently, in light of the Commission’s error of law, the claims of the applicant must be upheld and the contested decision must be annulled; there is no need to examine the arguments in support of the first plea in law. [para 105]The Judgment ist available in full text >>here and several languages: just change the 2 letters after “lang=” within the link
