Official Journal of the European Union

C 273/4

(Case C-284/12)

2012/C 273/05

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: Deutsche Lufthansa AG

Defendant: Flughafen Frankfurt Hahn GmbH

Questions referred

1.Does an uncontested decision of the Commission to initiate a formal investigation procedure under the second sentence of Article 108(3) TFEU have the result that, in appeal proceedings concerning the recovery of payments made and an order to refrain from making future payments, a national court is bound by the Commission’s legal opinion in that decision as to whether a measure constitutes State aid?

2.If Question 1 is answered in the negative: Are measures adopted by a public undertaking within the meaning of Article 2(b)(i) of Commission Directive 2006/111/EC, which operates an airport, to be regarded, for the purposes of State aid law, as selective measures within the meaning of Article 107(1) TFEU, simply because they benefit only airlines which use the airport?

3(a)If Question 2 is answered in the negative: Is the criterion of selectivity not satisfied if the public undertaking which operates the airport offers the same conditions, and in a transparent manner, to all airlines which opt to use the airport?

3(b)Is this still the case if the airport operator adopts a specific business model (cooperation with ‘low-cost carriers’, in this instance), which tailors its conditions of use to such customers, with the result that those conditions are not equally attractive to all airlines?

3(c)Is there a selective measure, at any rate, if the vast majority of the airport’s passengers has been attributable to a single airline for a number of years?

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).