25.4.2016

EN

Official Journal of the European Union

C 145/30

(Case T-53/16)

(2016/C 145/37)

Language of the case: English

Parties

Applicants: Ryanair Ltd (Dublin, Ireland) and Airport Marketing Services Ltd (Dublin) (represented by: G. Berrisch, E. Vahida, 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, 5 and 6 of the Commission Decision of 23 July 2014 in State aid case SA.33961 (2012/C) (ex 2012/NN) which found that Ryanair and Airport Marketing Services received unlawful State aid, incompatible with the internal market, through a number of agreements relating to the Nîmes-Garons airport; and

—order the Commission to pay the costs.

Pleas in law and main arguments

In support of the action, the applicants rely on five pleas in law.

1.First plea in law, alleging that the decision violates Article 41 of the Charter of fundamental rights of the European Union, 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 the applicants in a position where they could effectively make known their views.

2.Second plea in law, alleging a breach of Article 107(1) TFUE because the Commission wrongly imputed the measures at issue to the State.

3.Third plea in law, alleging a breach of Article 107(1) TFUE because the Commission erroneously considered that the resources of Veolia Transport Aéroport de Nîmes (VTAN), one of the airport’s managers, were State resources.

4.Fourth plea in law, alleging a breach of Article 107(1) TFUE because the Commission failed to properly apply the market economy operator test. The Commission erroneously refused to rely on a comparator analysis, which would have led to the finding of absence of aid to the applicants. In the alternative, the Commission failed to attribute appropriate value to marketing services, wrongly dismissed the rationale behind the airport’s decision to purchase such services, erroneously dismissed the possibility that part of the marketing services may have been purchased for general interest purposes, erroneously considered the airport manager, le Syndicat Mixte pour l’aménagement et le dévelopment de l’aéroport de Nîmes — Alès — Camargue — Cévennes (SMAN), and its privately held contractor VTAN as a single entity, based its conclusions on incomplete and inappropriate data for its calculation of the airport’s profitability, disregarded the network externalities that the airport could expect to gain from its relationship with Ryanair, and neglected to compare the data submitted by the airport to those typically related to a well-run airport. In any event, even if there was an advantage to the applicants, the Commission failed to establish that the advantage was selective.

5.Fifth plea in law, alleging, on a subsidiary basis, a breach of Articles 107(1) and 108(2) TFUE, because the Commission committed a manifest error of assessment and an error of law by finding that the aid to Ryanair and Airport Marketing Services was equal to the cumulated marginal losses of the airport (as calculated by the Commission) instead of the actual benefit to Ryanair and Airport Marketing Services. 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.