27.8.2018

EN

Official Journal of the European Union

C 301/45

(Case T-447/18)

(2018/C 301/61)

Language of the case: German

Parties

Applicant: TUIfly GmbH (Langenhagen, Germany) (represented by: L. Giesberts and M. Gayger, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—annul Articles 7 and 8 and Articles 9, 10 and 11, in so far as the latter relate to Articles 7 and 8, of Commission Decision (EU) 2018/628 of 11 November 2016 on State aid SA.24221(2011/C) (ex 2011/NN) implemented by Austria for the Klagenfurt airport, Ryanair and other airlines using the airport (OJ 2018 L 107, p. 1);

—order the Commission to pay the costs.

Pleas in law and main arguments

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

1.First plea in law, alleging that the decision breaches Article 41 of the Charter of Fundamental Rights of the European Union, the principle of sound administration and the applicant’s rights of defence, because the Commission failed to grant the applicant access to the file of the investigation and to place the applicant in a position in which it could effectively defend itself.

2.Second plea in law, alleging that the decision breaches Article 107(1) TFEU, inasmuch as the Commission failed to demonstrate that the applicant was selectively favoured.

3.Third plea in law, alleging that the decision breaches Article 107(1) TFEU, inasmuch as the Commission exceeded, from a procedural point of view, its margin of discretion in applying the market economy investor principle. In this regard, the applicant submits that the Commission, contrary to procedural requirements, erred in applying the strict standard of the 2014 aviation guidelines in its examination, although the relevant facts relate to the earlier years 2003 to 2009.

4.Fourth plea in law, alleging that the decision breaches Article 107(1) TFEU, inasmuch as the Commission exceeded its margin of discretion in applying the market economy investor principle by insufficiently establishing the facts. In this regard, the applicant submits that the Commission improperly concluded from the absence of a comprehensive business plan with regard to agreements entered into with the applicant that there was allegedly no strategy for ensuring the profitability of Klagenfurt airport (‘KLU’) and that it carried out manifestly contradictory factual assessments in the decision with regard to KLU’s long-term profitability strategy.

5.Fifth plea in law, alleging that the decision breaches Article 107(1) TFEU, inasmuch as the Commission exceeded its margin of discretion in applying the market economy investor principle by insufficiently establishing the facts in the context of its ex ante profitability analysis which was drawn up subsequently. In this regard, the applicant claims that the Commission erred in not taking into account, as airport revenue, the aid-rules-compliant provision of aid to KLU for the purposes of financing its marketing measures. Furthermore, the Commission did not sufficiently assess the market value of the services provided by the applicant and did not take them into account in the decision, even though the services in question were provided by the applicant at prices reflecting normal market conditions.

6.Sixth plea in law, alleging that the decision breaches Article 107(3) TFEU, inasmuch as the Commission, contrary to procedural requirements, applied a disproportionately strict standard, when assessing justification which does not correspond to its legal practice at the time when the marketing agreements were entered into.

7.Seventh plea in law, alleging that the decision breaches Article 107(3) TFEU, inasmuch as the Commission did not fully investigate the facts justifying the alleged aid. In this regard, the applicant submits that the Commission disregarded the aid-rules-compliant provision of aid to KLU for the purpose of justifying the aid provided to the applicant. Furthermore, the Commission failed to take into consideration, in its examination of Article 107(3)(c) TFEU, the significance of the marketing agreements in relation to regional and transport policy as well as the considerable positive effects for the regional economy connected with it.