Wizz Air Hungary v Commission (TAROM; aide au sauvetage) (State aid - Air transport - Support measure taken by Romania - Judgment) [2022] EUECJ T-718/20 (04 May 2022)

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(State aid – Air transport – Support measure taken by Romania – Rescue aid to TAROM – Decision not to raise any objections – Action for annulment – Status as a party concerned – Safeguarding of procedural rights – Admissibility – Guidelines on State aid for rescuing and restructuring non-financial undertakings in difficulty – Measure aiming to prevent social hardship or to address market failure – ‘One time, last time’ principle – Effect of earlier aid granted before Romania’s accession to the European Union – Serious difficulties – Obligation to state reasons)

Wizz Air Hungary Légiközlekedési Zrt. (Wizz Air Hungary Zrt.), established in Budapest (Hungary), represented by E. Vahida, S. Rating and I.-G. Metaxas-Maranghidis, lawyers,

European Commission, represented by L. Flynn, V. Bottka and I. Barcew, acting as Agents,

composed of S. Papasavvas, President, A. Kornezov, E. Buttigieg, G. Hesse and D. Petrlík (Rapporteur), Judges,

1 By its action under Article 263 TFEU, the applicant, Wizz Air Hungary Légiközlekedési Zrt. (Wizz Air Hungary Zrt.), seeks the annulment of Decision C(2020) 1160 final of the Commission of 24 February 2020 concerning State Aid SA.56244 (2020/N) – Romania – Rescue aid to TAROM (OJ 2020 C 310, p. 3), by which the European Commission, first, did not raise any objections to an aid measure granted by Romania to the Compania Nationala de Transporturi Aeriene Romane ‘TAROM SA’ (‘TAROM’) consisting of a loan in the amount of 175 952 000 Romanian lei (RON) (approximately EUR 36 660 000), repayable at the end of a period of six months, and, second, declared that aid to be compatible with the internal market (‘the contested decision’).

2 TAROM is a Romanian airline operating from a single airport hub, located at the OTP Bucharest Henri-Coandă International Airport (Romania). It is mainly active in the air transport of passengers, cargo and mail. At the beginning of 2020, TAROM employed 1 795 people and had a fleet of 25 aircraft. TAROM operated both domestic and international routes.

3 On 19 February 2020, Romania notified to the Commission a project to grant rescue aid to TAROM, consisting of a loan to finance TAROM’s liquidity needs in the amount of RON 175 952 000 (approximately EUR 36 660 000), repayable at the end of a period of six months with an option to repay part of the loan early (‘the aid measure’).

4 The Commission found that TAROM’s financial situation had significantly deteriorated over the previous five years and highlighted the fact that the accumulated losses over the 2004-2019 period amounted to RON 3 362 130 000 (approximately EUR 715 350 000), thus exceeding half of TAROM’s capital.

5 As regards the situation of the transport infrastructure in Romania, the Commission noted that the general condition and reliability of road and rail infrastructure in Romania were poor, and that air transport, in particular the domestic routes operated by TAROM, remained essential for regional development in that country.

6 The Commission indicated that, according to Romania, TAROM’s exit from the market would not make it possible to operate flights for which bookings had already been made and TAROM’s competitors would not be able to take over the routes concerned in the short term, and that such an exit would affect a large number of undertakings, in particular domestic airports.

7 In its examination of the aid measure, in the first place, the Commission found that that measure constituted State aid within the meaning of Article 107(1) TFEU.

8 In the second place, the Commission examined whether the aid measure was compatible with the internal market on the basis of Article 107(3)(c) TFEU.

9 First, in recitals 52 to 57 of the contested decision, the Commission found that TAROM was an undertaking in difficulty within the meaning of the Guidelines on State aid for rescuing and restructuring non-financial undertakings in difficulty (OJ 2014 C 249, p. 1; ‘the Guidelines’).

10 Secondly, in recitals 58 to 65 of the contested decision, the Commission noted that the information provided by Romania demonstrated that the aid measure fulfilled the condition laid down in points 43 to 52 of the Guidelines, according to which State aid must contribute to an objective of common interest.

11 Thirdly, in recitals 66 to 77 of the contested decision, the Commission found that the aid measure was appropriate to achieve the objective pursued, namely to avoid TAROM’s liquidation.

12 Fourthly, in recitals 78 to 85 of that decision, the Commission found that the aid measure was proportionate to TAROM’s liquidity needs over a period of six months.

13 Fifthly, in recitals 86 to 89 of the contested decision, the Commission concluded that the ‘one time, last time’ condition, compliance with which is required by points 70 to 74 of the Guidelines, was fulfilled.

14 Consequently, the Commission decided not to raise any objections to the aid measure on the ground that it was compatible with the internal market, in accordance with Article 107(3)(c) TFEU.

17 The applicant argues that it has standing to bring proceedings and an interest in bringing proceedings as a party concerned within the meaning of Article 108(2) TFEU and as an interested party within the meaning of Article 1(h) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU] (OJ 2015 L 248, p. 9).

19 In that regard, it should be borne in mind that, where, as in the present case, the Commission adopts a decision not to raise any objections on the basis of Article 4(3) of Regulation 2015/1589, it not only declares that the measures in question are compatible with the internal market, but also, by implication, refuses to initiate the formal investigation procedure laid down in Article 108(2) TFEU and in Article 6(1) of that regulation (see, by analogy, judgment of 27 October 2011, Austria v Scheucher-Fleisch and Others, C‑47/10 P, EU:C:2011:698, paragraph 42 and the case-law cited). If, following the preliminary examination, it finds that the measure notified raises doubts as to its compatibility with the internal market, the Commission is required to adopt, on the basis of Article 4(4) of Regulation 2015/1589, a decision initiating the formal investigation procedure laid down in Article 108(2) TFEU and in Article 6(1) of that regulation. Under the latter provision, such a decision must call upon the Member State concerned and upon other interested parties to submit comments within a prescribed period which must not, as a rule, exceed one month (see, by analogy, judgment of 24 May 2011, Commission v Kronoply and Kronotex, C‑83/09 P, EU:C:2011:341, paragraph 46).

20 When the formal investigation procedure is not initiated, the parties concerned, which could have submitted comments during that second stage, are deprived of that possibility. In order to remedy this, those parties are entitled to challenge the Commission’s decision not to initiate the formal investigation procedure before the EU Courts. Accordingly, an action for annulment of a decision based on Article 108(3) TFEU brought by a party concerned within the meaning of Article 108(2) TFEU is admissible where that party seeks thereby to safeguard the procedural rights available to it under the latter provision (judgments of 18 November 2010, NDSHT v Commission, C‑322/09 P, EU:C:2010:701, paragraph 56, and of 9 June 2021, Ryanair v Commission (Condor; Covid‑19), T‑665/20, EU:T:2021:344, paragraph 26).

21 Such interested parties include, in the light of Article 1(h) of Regulation 2015/1589, undertakings in competition with the beneficiary of an aid measure (see, to that effect, judgments of 3 September 2020, Vereniging tot Behoud van Natuurmonumenten in Nederland and Others v Commission, C‑817/18 P, EU:C:2020:637, paragraph 50, and of 9 June 2021, Ryanair v Commission (Condor; Covid‑19), T‑665/20, EU:T:2021:344, paragraph 28).

22 In the present case, it must be noted that there is a competitive relationship between the applicant and TAROM, the beneficiary of the aid measure. The applicant has argued, without being contradicted, that it was the largest airline in Romania in terms of share of seat capacity in 2019. Thus, the applicant states that it holds 40.8% of that share, carrying approximately 9.3 million passengers per year from and to Romania and on domestic routes within that country, whereas TAROM holds only 15.3% of that share. The applicant also stated that its summer 2020 flight schedule, planned before the start of the COVID-19 pandemic, comprised 163 routes departing from 11 Romanian airports.

23 It follows that the applicant is a party concerned with an interest in safeguarding the procedural rights available to it under Article 108(2) TFEU.

24 The action must therefore be declared admissible in so far as the applicant argues, in the context of that action, that its procedural rights have been infringed.

25 It should be noted that, in support of its action, the applicant relies on four pleas in law, alleging, first, a manifest error of assessment of the contribution of the aid measure to a well-defined objective of common interest, second, an error of law and a manifest error of assessment relating to compliance with the ‘one time, last time’ condition, third, the existence of serious difficulties which should have led the Commission to initiate the formal investigation procedure, and, fourth, infringement of the obligation to state reasons within the meaning of Article 296 TFEU.

26 It must be stated at the outset that, by its third plea in law, the applicant expressly seeks to ensure respect for its procedural rights. In that regard, it must also be noted that the applicant may, in order to safeguard its procedural rights, rely on pleas which show that the assessment of the information and evidence which the Commission had or could have had at its disposal during the preliminary examination phase of the notified measure ought to have given rise to doubts as to the compatibility of that measure with the internal market (see, to that effect, judgments of 22 December 2008, Régie Networks, C‑333/07, EU:C:2008:764, paragraph 81; of 9 July 2009, 3F v Commission, C‑319/07 P, EU:C:2009:435, paragraph 35; and of 9 June 2021, Ryanair v Commission (Condor; Covid‑19), T‑665/20, EU:T:2021:344, paragraph 31).

28 As regards the first and second pleas in law, it must be pointed out that the applicant can, in order to demonstrate that its procedural rights have been infringed by reason of the doubts that the aid measure ought to have raised as to its compatibility with the internal market, put forward arguments aimed at demonstrating that the Commission’s finding as to the compatibility of that measure with the internal market was incorrect, which, a fortiori, is such as to establish that the Commission ought to have harboured doubts in its assessment of the compatibility of that measure with the internal market. The Court is therefore entitled to examine the substantive arguments put forward by the applicant in the context of the first and second pleas in law in order to ascertain whether they are such as to support the plea expressly made by the applicant regarding the existence of doubts justifying the initiation of the procedure under Article 108(2) TFEU (see, to that effect, judgments of 13 June 2013, Ryanair v Commission, C‑287/12 P, not published, EU:C:2013:395, paragraphs 57 to 60; of 6 May 2019, Scor v Commission, T‑135/17, not published, EU:T:2019:287, paragraph 77; and of 9 June 2021, Ryanair v Commission (Condor; Covid‑19), T‑665/20, EU:T:2021:344, paragraph 32).

29 As regards the fourth plea in law, alleging infringement of the obligation to state reasons, it should be noted that a breach of the duty to state reasons goes to an issue of infringement of essential procedural requirements and involves a matter of public policy, which must be raised by the EU Courts of their own motion and does not relate to the substantive legality of the contested decision (judgment of 19 May 2021, Ryanair v Commission (TAP; Covid‑19), T‑465/20, EU:T:2021:284, paragraph 29; see also, to that effect, judgment of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 67).

30 In the light of the analysis set out in paragraphs 25 to 29 above, it is appropriate to begin by examining the third plea in law.

Third plea in law, alleging the existence of serious difficulties which should have led the Commission to initiate the formal investigation procedure

31 The applicant submits that the Commission carried out an insufficient and incomplete examination, first, of compliance with the condition relating to the contribution of TAROM’s rescue to an objective of common interest and, second, of compliance with the ‘one time, last time’ condition of aid for rescuing and restructuring undertakings in difficulty. In that regard, the applicant refers to the content of the first two pleas in law of the action and infers therefrom that those inadequacies are indicative of the existence of serious difficulties which should have led the Commission to initiate the formal investigation procedure.

32 The applicant also argues that the outcome of the procedure for investigating the aid measure might have been different if the Commission had respected the applicant’s procedural rights, by offering the applicant the opportunity to submit its comments on that measure and to provide the Commission with factual or other information.

33 As a preliminary point, it should be noted that, in view of the applicant’s arguments, it is for the Court to ascertain, in the context of the examination of the present action, whether two of the conditions laid down in the Guidelines in order for rescue aid to an undertaking in difficulty to be regarded as compatible with the internal market, namely the condition relating to the contribution of the aid measure to an objective of common interest and the ‘one time, last time’ condition of aid for rescuing and restructuring undertakings in difficulty, were complied with by the Commission.

34 As regards the first of those conditions, the Court considers it necessary, having regard to the judgment of 22 September 2020, Austria v Commission (C‑594/18 P, EU:C:2020:742), to note that it is apparent from point 43 of the Guidelines that, in order to be declared compatible with the internal market on the basis of the Guidelines, a State aid measure must pursue an objective of common interest. According to that same point, that requirement takes the form of the condition that such a measure must aim to ‘prevent social hardship or address market failure’. This is confirmed by point 44 of those guidelines, according to which Member States must demonstrate that the failure of the beneficiary would be likely to involve serious social hardship or severe market failure. The content of that requirement is thus linked to the condition laid down in Article 107(3)(c) TFEU, according to which the aid measure must be intended to facilitate the development of certain economic activities or of certain economic areas, as the parties, moreover, submitted at the hearing.

35 It follows that the very substance of the requirement laid down in points 43 and 44 of the Guidelines is not contrary to Article 107(3)(c) TFEU, which, in addition, is not claimed by any of the parties, and that, by imposing that requirement, the Guidelines did not unduly reduce the scope of that provision as regards the examination as to whether a State aid measure was compatible within the meaning of the judgment of 22 September 2020, Austria v Commission (C‑594/18 P, EU:C:2020:742, paragraph 24). Furthermore, it is apparent from paragraphs 66 and 67 of that judgment that the fact that the proposed aid enables a market failure to be addressed may constitute a relevant factor in assessing the compatibility of that aid under Article 107(3)(c) TFEU.

– The rules on the burden of proof applicable when examining the requirements laid down in points 43 and 44 of the Guidelines

36 The applicant submits that the Commission failed to comply with the requirements imposed by points 8 and 43 of the Guidelines. It considers, in particular, in essence, that Romania was required to demonstrate the reality of the negative consequences which the aid measure seeks to address. Thus, by way of example, it argues that that State was required to show that other airlines would not succeed in taking over certain routes currently operated by TAROM. The applicant argues that the Commission wrongly accepted that Romania should demonstrate only that it was likely that the aid measure met the requirements laid down in points 43 and 44 of the Guidelines.

38 In that regard, first of all, it is apparent from the wording of point 43 of the Guidelines that the Member State concerned must demonstrate that the aid ‘aims’ to prevent social hardship or address market failure.

39 That point must be read in conjunction with point 44(b) of the Guidelines, which clarifies that the Member States must demonstrate that the failure of the beneficiary ‘would be likely’ to involve serious social hardship or severe market failure, in particular by showing that there is a ‘risk’ of disruption to an important service which is hard to replicate and where it would be difficult for any competitor simply to step in.

40 It follows that the Member State concerned is not required to demonstrate that, in the absence of the aid measure, certain negative consequences would necessarily arise as a result of the aid beneficiary’s failure, but only that such consequences might arise.

41 Next, the evidence provided in this regard by the Member State can, by its very nature, relate only to future events, the realisation of which is not certain at the time when the aid is notified to the Commission. Thus, that evidence must enable the Commission to carry out a prospective analysis of the negative consequences of not adopting an aid measure.

42 Lastly, it follows from the case-law that the lawfulness of a decision not to raise objections, such as the contested decision, based on Article 4(3) of Regulation 2015/1589, depends on the question whether the assessment of the information and evidence which the Commission had at its disposal during the preliminary examination phase of the measure notified should objectively have raised doubts as to the compatibility of that measure with the internal market, given that such doubts must lead to the initiation of a formal investigation procedure in which the interested parties referred to in Article 1(h) of that regulation may participate (judgments of 3 September 2020, Vereniging tot Behoud van Natuurmonumenten in Nederland and Others v Commission, C‑817/18 P, EU:C:2020:637, paragraph 80, and of 2 September 2021, Commission v Tempus Energy and Tempus Energy Technology, C‑57/19 P, EU:C:2021:663, paragraph 38).

43 Evidence of the existence of doubts as to the compatibility of the aid at issue with the internal market, which requires investigation of both the circumstances in which the decision not to raise objections was adopted and its content, must be adduced by the applicant seeking the annulment of that decision on the basis of a body of consistent evidence (judgments of 3 September 2020, Vereniging tot Behoud van Natuurmonumenten in Nederland and Others v Commission, C‑817/18 P, EU:C:2020:637, paragraph 82, and of 2 September 2021, Commission v Tempus Energy and Tempus Energy Technology, C‑57/19 P, EU:C:2021:663, paragraph 40).

44 In those circumstances, in order to assess the lawfulness of the contested decision, there is no need to examine whether the Commission demonstrated that, in the absence of the aid measure, social hardship or market failure would necessarily have arisen and that that measure would make it possible to prevent them or address them with certainty. By contrast, it is necessary to ascertain whether the applicant has demonstrated the existence of serious difficulties, in the light of the information and evidence which the Commission had or could have had at its disposal, which should have led the Commission to harbour doubts as to the existence of a risk that, in the absence of the aid measure, such social hardship or market failure would have arisen, or as to whether the aid measure was intended to prevent or address them.

– Evidence of the existence of serious difficulties concerning the requirements laid down in points 43 and 44 of the Guidelines

46 By the first part of its third plea in law, in which it also refers to its first plea in law, the applicant submits that the Commission erred in its examination of the requirements laid down in points 43 and 44 of the Guidelines. First, the applicant notes that the Commission ought to have harboured doubts as to the significance of TAROM on the national market. Secondly, it considers that the Commission failed to assess the possibility of substituting TAROM on those domestic routes. Thirdly, it notes that the Commission failed to assess TAROM’s low share of the international routes when examining the compatibility of the aid measure.

48 In that regard, it should be noted that, in recitals 58 to 65 of the contested decision, the Commission examined whether the aid measure met the requirements laid down in points 43 and 44 of the Guidelines, taking the view that, in accordance with those guidelines, it had to be demonstrated that the measure aimed to prevent social hardship or address a market failure.

49 In recitals 59 and 60 of the contested decision, the Commission found that it had been shown that TAROM played a decisive role in ensuring regional connectivity within Romania, since it operated several domestic air routes on its own. Furthermore, the Commission stated that cessation of operations by TAROM would affect 460 000 passengers who had already booked flights, including 63 000 passengers booked on routes operated exclusively by TAROM. As regards the latter routes, the Commission found, in recitals 61 and 62 of that decision, that it appeared unlikely that competitor airlines would step in to fully cover those routes, which would affect the connectivity of the regions in Romania in view of the poor condition of the road and rail infrastructure that does not offer any real meaningful alternatives for the passengers on those routes. In recital 63 of the contested decision, the Commission stated that cessation of operations by TAROM could be detrimental to the economic situation in the regions of Romania, particularly for regional airports, to the extent that it could result in a reduction in economic activity, which could lead to a decreased demand for travel services. In recital 64 of that decision, the Commission found, on the basis of the information provided, that there was a concrete risk of disruption of passenger air transport services in Romania and, in recital 65 of that decision, it concluded, in essence, that, by averting an imminent and potentially disruptive liquidation process, the aid measure would prevent serious social hardship and severe market failure.

50 In that regard, first, it should be noted that the Commission’s analysis cannot be called into question by the applicant’s argument that the Commission failed to assess the size of the market and the significance of TAROM in domestic and international routes.

51 It should be noted that point 43 and point 44(b) of the Guidelines do not require the Commission to take account of the size of the relevant market when examining whether the service in question is ‘important’. Thus, even if the market in question is relatively limited, that does not prevent a service provided on that market from being important within the meaning of the Guidelines.

52 In the present case, the Commission’s analysis is based, in essence, on the finding that cessation of operations by TAROM would be detrimental to the connectivity of the regions in Romania exclusively served by TAROM and to the economic situation of those regions, and that there would be, in that case, a concrete risk of disruption of some passenger air transport services in Romania.

53 In that regard, it must be pointed out that, in the absence of valid alternatives due to the poor condition of Romanian road and rail infrastructure, a fact which is not disputed by the applicant, regional connectivity by means of domestic air routes and international connectivity in Romania could rightly be considered by the Commission to be an important service, the disruption of which could involve serious social hardship or constitute a market failure within the meaning of point 44(b) of the Guidelines.

54 Furthermore, in so far as the applicant submits that, in view of TAROM’s weak presence on the national air transport market, the amount of the aid per passenger appears disproportionate, the applicant calls into question, in essence, the proportionality of the aid measure.

55 In that regard, the applicant has not shown that the implementation of the public service obligations with which TAROM would have been entrusted, as the applicant suggests, could have been carried out within a sufficiently short period to avoid TAROM’s exit from the market, which, it is not disputed, appeared imminent. Similarly, the applicant has not shown that such public service obligations would have been such as to prevent cessation of operations by TAROM and the consequences which would have followed therefrom for the connectivity and economic activity of the Romanian regions concerned.

56 Secondly, as regards the applicant’s arguments relating to TAROM’s substitution on domestic routes, it should be recalled that the lawfulness of a decision not to raise objections at the end of a preliminary examination procedure falls to be assessed by the EU Courts, in the light not only of the information available to the Commission at the time when the decision was adopted, but also of the information which could have been available to the Commission (judgments of 29 April 2021, Achemos Grupė and Achema v Commission, C‑847/19 P, not published, EU:C:2021:343, paragraph 41, and of 2 September 2021, Commission v Tempus Energy and Tempus Energy Technology, C‑57/19 P, EU:C:2021:663, paragraph 42).

57 In that regard, although, when the existence and legality of State aid are being examined, it may be necessary for the Commission, where appropriate, to go beyond a mere examination of the facts and points of law brought to its notice, it cannot be inferred from this that it is for the Commission, on its own initiative and in the absence of any evidence to that effect, to seek all information which might be connected with the case before it, even where such information is in the public domain (see judgment of 2 September 2021, Commission v Tempus Energy and Tempus Energy Technology, C‑57/19 P, EU:C:2021:663, paragraph 45 and the case-law cited).

58 In that context, first of all, it must be observed that, contrary to what the applicant asserts, the possibility of TAROM’s substitution by its competitors on the domestic routes operated exclusively by TAROM was assessed by the Commission in recital 61 of the contested decision. It is apparent from the content of that recital, which refers in that regard to recital 17 of that decision, that the Commission took the view that it was unlikely that the competitor airlines present on the Romanian market, which are mainly low-cost airlines, would enter that market in order to fully cover all of those routes, since the commercial interest of those airlines in doing so was presumably low. To that end, the Commission noted that demand on those routes was low in terms of passengers per flight and that it was not profitable to operate such routes with aircraft with a larger seat capacity than those used by TAROM, such as those normally operated by low-cost airlines. The Commission observed that the business model of low-cost airlines is based on quantity and a homogeneous fleet in order to minimise costs.

59 Next, although it submits that airlines in competition with TAROM operated three of the seven domestic routes presented in that decision as operated exclusively by TAROM, the applicant does not dispute that, in any event, the other four domestic routes were indeed operated exclusively by TAROM.

60 Furthermore, the applicant has not submitted sufficient evidence to show that, at the date when the contested decision was adopted, those competitor airlines were operating those three domestic routes.

61 Thus, first, the extract from an airline’s website, submitted by the applicant, makes it possible only to conclude that that airline operated the three domestic routes in question on 3 November 2020, that is to say, after the date on which the contested decision was adopted. It cannot therefore be disputed that the Commission could not take account, in that decision, of the information contained in that document.

62 Second, as regards another document submitted to the Court by the applicant, according to which some of the domestic and international routes considered to be operated exclusively by TAROM in the contested decision were also operated by competitors of TAROM, the applicant clarified at the hearing that this was a table which the applicant had itself drawn up, which contains information concerning air routes for a given period provided by a company specialising in the collection and processing of data on the various existing air routes.

63 However, assuming that the information in that table is reliable, the fact nonetheless remains that, as the applicant in fact accepts, that information confirms that, at the time when the contested decision was adopted, TAROM was operating several of the air routes in question on its own. Furthermore, as regards the other air routes in question, that information does not specify that other airlines were also operating those routes at certain periods, be it annually or seasonally, or at a certain frequency, in particular daily or weekly, which would have placed them in competition with TAROM. Neither that table nor the applicant’s written pleadings make it possible to identify such information.

64 Therefore, assuming it to be established, the fact that other airlines were operating certain domestic and international routes at any time in 2019 is not such as to demonstrate that those airlines would have been able easily to provide the service performed by TAROM, in the event that it were to fail, on all of the routes which TAROM operated exclusively.

65 Furthermore, in so far as the applicant states, in the application, that the information in that table comes from sources in the public domain, such as the airlines’ websites, it should be recalled that, as is apparent from the case-law cited in paragraph 57 above, the Commission is not required to seek, on its own initiative and in the absence of any evidence to that effect, all information which might be connected with the case before it, even where such information is in the public domain.

66 In addition, as it also acknowledged at the hearing with regard to its own case, the applicant has not adduced any evidence to demonstrate that airlines in competition with TAROM would have been prepared to take over all the routes operated exclusively by TAROM in the event of the latter’s exit from the market.

67 Lastly, even assuming that the substitution of TAROM would have been possible on some of the domestic or international routes in question, the applicant has also failed to demonstrate that, in view of the likely and imminent cessation of operations by TAROM, that substitution could have taken place in the short term, in order to avoid as far as possible any disruption to the service, and under conditions similar to those in which those routes were operated.

68 This is, a fortiori, the case since it is common ground that TAROM has a hub-and-spoke network and that it is therefore in a position to offer a connection with Bucharest airport to passengers coming from regional airports, whereas TAROM’s competitors on domestic routes other than those operated by TAROM on its own have networks with point-to-point flights. The applicant has not disputed that, as the Commission contends, the connection to national or international destinations from Bucharest airport is such as to ensure regional connectivity in a particularly satisfactory manner.

69 In addition, as regards the alleged overcapacity in Romania at the date of the contested decision, the applicant does not dispute either that, as the Commission indicates, more than half of the aircraft grounded at that date belonged to TAROM, or that, as a general rule, the airlines in competition with TAROM, which are all low-cost airlines, use aircraft with a greater passenger capacity than the aircraft used by TAROM to cover routes which it operates on its own. The applicant does not explain to what extent it would be profitable to operate the domestic routes in question, which involve only a limited number of passengers, with such aircraft.

70 In any event, in the light of the case-law cited in paragraph 57 above, it was not for the Commission to seek, beyond the information submitted to it by the Member State, on its own initiative and in the absence of any evidence to that effect, information which might have indicated that airlines in competition with TAROM, despite their characteristics mentioned in paragraph 69 above, were willing to operate the domestic routes concerned.

71 In particular, it is not apparent from the evidence available to the Court that the number of grounded aircraft at the date of the contested decision, serving as evidence of overcapacity in Romania at that time, was information which the Commission was required to seek on its own initiative.

72 As regards, lastly, the argument that the liquidation of an airline does not affect the connectivity of a Member State, this is speculative and is not such as to show that the consequences of cessation of operations by TAROM for passengers on domestic and international routes operated exclusively by it could have been avoided, given that the applicant has not demonstrated that the airlines in competition with TAROM could have taken over those routes if TAROM were to fail.

73 Thirdly, as regards the argument by which the applicant criticises the Commission on the ground that it failed to assess TAROM’s low market share on international routes, it must be observed that that low market share, assuming it to be established, is not such as to affect the finding that TAROM’s situation and the risk that it would cease its operations in the short term were likely to harm Romania’s connectivity as a whole, especially the connectivity of certain regions in Romania, and to be detrimental to the passengers using its air transport services and, more broadly, to the economic situation of those regions or of certain infrastructures such as regional airports, as is apparent from recital 63 of the contested decision.

74 In view of TAROM’s importance for the connectivity of the regions in Romania and the consequences for those regions if TAROM were to fail, the Commission was entitled to conclude, without harbouring any doubts, on that basis alone, that the aid measure met the requirements laid down in points 43 and 44 of the Guidelines.

75 It follows from the foregoing that the applicant has not submitted any evidence relating to the examination of the requirements laid down in points 43 and 44 of the Guidelines which would be capable of demonstrating the existence of serious difficulties which should have led the Commission to harbour doubts as to the compatibility of the aid measure with the internal market, in particular as to the risk that, in the absence of the aid measure, social hardship or market failure would occur, or as to the fact that the aid measure is intended to prevent or address their occurrence.

76 Consequently, the first plea in law and the first part of the third plea in law must be rejected.

– Evidence of the existence of serious difficulties concerning compliance with the ‘one time, last time’ condition by the aid measure

77 By the second part of its third plea in law, in which it refers to its second plea in law, the applicant submits that, by authorising the aid measure, the Commission infringed the ‘one time, last time’ condition laid down in point 70 of the Guidelines. The applicant submits that the Commission did not take into account the fact, first, that TAROM had benefited from a series of capital increases up to 2019, which implemented restructuring aid that TAROM had obtained before Romania’s accession to the European Union (‘the restructuring aid for TAROM’) and, second, that the related restructuring plan had been implemented up to 2019, since that aid had itself been implemented up to that year. Furthermore, the applicant states that the fact that such aid may be regarded as existing aid is irrelevant to the application of the ‘one time, last time’ condition.

79 In that regard, it should be recalled that, according to point 70 of the Guidelines, in order to reduce moral hazard, excessive risk-taking incentives and potential competitive distortions, aid should be granted to undertakings in difficulty in respect of only one restructuring operation.

80 Point 71 of those guidelines provides, in that context, that, when planned rescue or restructuring aid is notified to the Commission, the Member State must specify whether the undertaking concerned has already received rescue aid, restructuring aid or temporary restructuring support in the past, including any such aid granted before the entry into force of the Guidelines and any non-notified aid. If that is the case, and where less than 10 years have elapsed since the aid was granted or the restructuring period came to an end or implementation of the restructuring plan was halted (whichever occurred the latest), the Commission will not allow further aid pursuant to those guidelines.

81 In recitals 87 to 89 of the contested decision, the Commission concluded that the ‘one time, last time’ condition, laid down in points 70 to 75 of the Guidelines, had been complied with. To that end, the Commission examined the effect of TAROM’s capital increases which took place up to 2019. The Commission found that those increases implemented the restructuring aid for TAROM before Romania’s accession to the European Union. In that regard, the Commission noted that that aid, which consisted of a loan and a guarantee from Romania in respect of loans taken out by TAROM, had been implemented up to 2019, with Romania replacing TAROM for repayment of those loans, and that TAROM’s debts resulting from payments made in that context had been converted into capital increases subscribed by that State.

82 In the present case, the applicant submits, in essence, that the conditions for implementation of the restructuring aid for TAROM do not make it possible for the ‘one time, last time’ condition to be regarded as having been satisfied. According to the applicant, the contested decision does not comply with the period of less than 10 years, irrespective of the situation under consideration referred to in point 71 of the Guidelines.

83 In the first place, as regards the first situation provided for in point 71 of the Guidelines, namely the expiry of a period of less than 10 years from the date on which the restructuring aid was granted, it follows from the case-law that, from the moment at which the right to receive support through State resources is conferred on the beneficiary under the applicable national legislation, the aid must be deemed to be granted, with the result that the actual transfer of the resources in question is not decisive (see, to that effect, judgments of 21 March 2013, Magdeburger Mühlenwerke, C‑129/12, EU:C:2013:200, paragraph 40; of 19 December 2019, Arriva Italia and Others, C‑385/18, EU:C:2019:1121, paragraph 36; and of 20 May 2021, Azienda Sanitaria Provinciale di Catania, C‑128/19, EU:C:2021:401, paragraph 45).

84 As is apparent from the contested decision and from the Commission’s reply to the measure of organisation of procedure, the restructuring aid for TAROM consists of a loan and several guarantees for other loans, granted by Romania to TAROM by means of five decisions and orders of the Romanian Government, adopted between 1997 and 2003. The restructuring aid for TAROM was subsequently authorised by the Consiliul Concurenţei (Competition Authority, Romania) in 2004.

85 It follows that the various components of the restructuring aid for TAROM were granted between 1997 and 2003, and it is clear from the explanations provided by the Commission at the hearing that all of those loan guarantees were called immediately after they had been granted.

86 Furthermore, the nature of a State aid measure consisting of a guarantee for loans granted to the beneficiary of the aid necessarily implies that, once the guarantee is called, the payments made in that context may extend over the entire loan period. However, that does not affect the date on which the aid was granted, with the result that all the arguments concerning the payments relating to the guarantees made after that date are ineffective.

87 Moreover, the Commission explained, in essence, in recital 88 of the contested decision, that the payments made by Romania pursuant to the guarantees which are the subject of the restructuring aid for TAROM, and the resulting conversions of TAROM’s debts into capital increases in favour of that State up to 2019, constituted a mere implementation of that aid.

88 In that regard, the applicant does not dispute the Commission’s assertion that the conditions for calling the loan guarantees and the conversion of the debts arising from payments made by Romania, pursuant to those guarantees, into TAROM’s capital increases in favour of that State were provided for in the various decisions and orders referred to in paragraph 84 above and thus even before Romania’s accession to the European Union.

89 The applicant merely submits that the Commission should have satisfied itself that the call on the guarantees granted by Romania had been made under the conditions initially agreed at the granting stage. However, in disregard of the rules on the burden of proof recalled in paragraph 43 above, the applicant has not adduced any evidence or indication that those conditions were altered during the period of implementation of the various guarantees in question.

90 In that regard, the applicant submitted at the hearing that the Commission should have satisfied itself with the conditions under which the implementation of the restructuring aid for TAROM had been carried out by examining the annual reports which the Member States must draw up pursuant to Article 21 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of [Article 108 TFEU] (OJ 1999 L 83, p. 1) and to Article 26 of Regulation 2015/1589, in order to dispel any doubt as to whether the aid measure complies with the ‘one time, last time’ condition.

91 However, in disregard of the rules on the burden of proof recalled in paragraph 43 above, the applicant has not adduced any evidence that, first, Romania did not comply with its obligation to draw up the annual report provided for in Article 21 of Regulation No 659/1999 and in Article 26 of Regulation 2015/1589 during the period of implementation of the restructuring aid for TAROM, and, second, it would appear from those annual reports that that aid was implemented under conditions which differed from those approved by the Competition Authority.

92 Consequently, it cannot be maintained that the Commission ought to have had doubts as to whether there had been compliance with the period of less than 10 years, provided for in point 71 of the Guidelines, calculated from the date on which the restructuring aid for TAROM was granted.

93 In the second place, as regards the second and third situations provided for in point 71 of the Guidelines, namely the expiry of a period of less than 10 years after the restructuring period ends and after the implementation of the restructuring plan is halted, the applicant submits that the payments made following the call on the guarantees granted in the context of the restructuring aid for TAROM and the conversion of debts resulting therefrom into TAROM’s capital increases, up to 2019, demonstrate that, first, the restructuring period lasted until that year and, second, the implementation of the restructuring plan was halted in the same year.

94 More specifically, the applicant considers, in essence, that the implementation of the restructuring aid for TAROM was part of the restructuring plan, the termination of which coincides with the end of the restructuring period.

95 First, as regards the concept of a ‘restructuring period’, it should be noted that point 7 of the Guidelines states that a failing undertaking may be able to carry out a restructuring that leads to its exit from certain structurally loss-making activities and allows the remaining activities to be reorganised on a basis that gives a reasonable prospect of long-term viability.

96 According to point 45 of the Guidelines, restructuring may involve one or more of the following elements: the reorganisation and rationalisation of the beneficiary’s activities on to a more efficient basis, typically involving withdrawal from loss-making activities, restructuring of those existing activities that can be made competitive again and, possibly, diversification towards new and viable activities. It typically also involves financial restructuring in the form of capital injections by new or existing shareholders and debt reduction by existing creditors.

97 In that context, point 47 of the Guidelines makes clear that ‘the restructuring period should be as short as possible’; those guidelines, including point 71 thereof, are thus based on the idea that the restructuring period would be short.

98 It follows from the foregoing that the concept of a ‘restructuring period’ refers to the period during which the measures listed in paragraph 96 above are taken. That period is therefore separate, in principle, from that during which a State aid measure is implemented.

99 However, in disregard of the rules on the burden of proof recalled in paragraph 43 above, the applicant has not provided any evidence or indication that the restructuring period, as defined in paragraph 98 above, ended after 2005, contrary to what is apparent from recital 24 of the contested decision, and, in any event, less than 10 years before the aid measure was granted.

100 Secondly, as regards the concept of a ‘restructuring plan’, it should be recalled that, in order to be declared compatible with the internal market in application of Article 107(3)(c) TFEU, a restructuring aid plan for an undertaking in difficulty must be linked to a restructuring programme designed to reduce or redirect its activities (judgments of 14 September 1994, Spain v Commission, C‑278/92 to C‑280/92, EU:C:1994:325, paragraph 67, and of 6 April 2006, Schmitz-Gotha Fahrzeugwerke v Commission, T‑17/03, EU:T:2006:109, paragraph 43; see also, to that effect, judgment of 12 September 2007, Olympiaki Aeroporia Ypiresies v Commission, T‑68/03, EU:T:2007:253, paragraph 88).

101 Thus, the fact that restructuring aid is linked to a restructuring plan does not mean that, as such, that aid forms part of the restructuring plan, since the existence of the restructuring plan constitutes, on the contrary, an essential condition for such aid to be considered compatible with the internal market (see, to that effect, judgment of 17 July 2014, Westfälisch-Lippischer Sparkassen- und Giroverband v Commission, T‑457/09, EU:T:2014:683, paragraph 283).

102 Such an interpretation is supported by the concept of a ‘restructuring plan’, as set out in the Guidelines, points 45 to 52 of which define its objectives and content, including its relationship with restructuring aid.

103 Thus, points 45 and 46 of the Guidelines require that, in the case of such aid, the Member State concerned must submit a restructuring plan to the Commission, and the granting of the aid must thus be conditional on the implementation of that plan. Point 45 of those guidelines sets out the elements that may be included in a restructuring plan, it being understood that none of those elements relates to restructuring aid. As regards point 47 of the Guidelines, it is apparent therefrom that the objective of such a plan is to restore the long-term viability of the beneficiary within a reasonable timescale and on the basis of realistic assumptions.

104 It follows that the Guidelines draw a distinction between the concept of ‘implementation of an aid measure’ and that of ‘implementation of a restructuring plan’.

105 When the applicant submits that the fact that the restructuring aid for TAROM was implemented up to 2019 means that the restructuring plan also lasted up to 2019, it disregards both the scope of the case-law cited in paragraphs 100 and 101 above and the distinction between the concept of implementation of a State aid measure and that of implementation of a restructuring plan.

106 Consequently, the applicant’s argument seeking to show that the Commission ought to have had doubts as to the date on which the restructuring period ended or as to the date on which the restructuring plan was halted must be rejected.

107 In the third place, the applicant criticises the findings set out by the Commission in recital 88 of the contested decision, according to which the restructuring aid for TAROM constituted existing aid in the light of the fact that it had been approved by the Competition Authority prior to the date of Romania’s accession to the European Union. In particular, it submits, the Commission did not verify whether the restructuring aid constituted existing aid within the meaning of paragraph 4 of Title 2 of Annex V to the Act concerning the conditions of accession of the Republic of Bulgaria and Romania and the adjustments to the Treaties on which the European Union is founded (OJ 2005 L 157, p. 203), which requires that such aid be notified to the Commission within four months of the date of accession and limits the effect of classification as existing aid until the end of the third year from the date of accession.

108 However, without there being any need to examine whether the classification of the restructuring aid for TAROM as existing aid is relevant to the implementation of the ‘one time, last time’ condition, it must be stated that the Commission did not rely on such a classification in order to examine whether that condition was complied with in the present case by the aid measure. The applicant’s argument is therefore not such as to affect the lawfulness of the contested decision.

109 It follows from the foregoing that the applicant has not submitted any evidence concerning compliance with the ‘one time, last time’ condition that would be capable of demonstrating the existence of serious difficulties which ought to have led the Commission to harbour doubts as to whether the aid measure was compatible with the internal market.

110 Accordingly, the second complaint of the third plea in law must be rejected.

– Evidence of the existence of serious difficulties relating to the infringement of the applicant’s procedural rights

111 By the third part of its third plea in law, the applicant submits that the outcome of the procedure for investigating the aid measure could have been different if the Commission had respected the applicant’s procedural rights, by offering it the opportunity to submit its comments on that measure and to provide the Commission with factual or other information.

112 It must be stated that, as noted by the Commission, such an argument is ineffective in challenging a decision by which the Commission declares State aid to be compatible with the internal market without initiating the formal investigation procedure.

113 The lawfulness of a decision not to initiate the formal investigation procedure depends on whether the Commission encountered serious difficulties in the examination of the State aid measure notified to it.

114 The possibility for the applicant to submit comments on the aid measure and to provide the Commission with factual or other information is not capable of demonstrating the existence of serious difficulties which ought to have led the Commission to harbour doubts as to whether the aid measure was compatible with the internal market.

115 Accordingly, the third part of the third plea in law must be rejected, as must therefore the third plea in law in its entirety.

Fourth plea in law, alleging infringement of the obligation to state reasons within the meaning of Article 296 TFEU

116 The applicant takes the view that the Commission failed to fulfil its obligation to state reasons in that it did not indicate the reason why TAROM’s activity should have been regarded as being of particular importance for Romania or the market shares held by TAROM in the national and international segments of the Romanian market. Moreover, the applicant submits, the contested decision contains incomplete explanations as to the possibility of replicability of the services provided by TAROM, and it is contradictory and incomplete as regards the application of the ‘one time, last time’ condition.

117 The Commission contends that the applicant’s arguments should be rejected.

118 In that regard, it should be borne in mind that the statement of reasons required by Article 296 TFEU is an essential procedural requirement (judgment of 18 June 2015, Ipatau v Council, C‑535/14 P, EU:C:2015:407, paragraph 37) and must be appropriate to the act at issue and disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review. Thus, the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom that measure is of concern within the meaning of the fourth paragraph of Article 263 TFEU, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements provided for in Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgments of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 63, and of 15 April 2008, Nuova Agricast, C‑390/06, EU:C:2008:224, paragraph 79).

119 Furthermore, a decision adopted at the end of the preliminary examination phase and declaring a State aid measure compatible with the internal market, which is taken within a short period, must simply set out the reasons for which the Commission takes the view that it is not faced with serious difficulties in assessing the compatibility of the aid at issue with the internal market (judgments of 22 December 2008, Régie Networks, C‑333/07, EU:C:2008:764, paragraph 65, and of 27 October 2011, Austria v Scheucher-Fleisch and Others, C‑47/10 P, EU:C:2011:698, paragraph 111).

120 In the present case, as regards, first of all, the criticism concerning the statement of reasons relating to the particular importance of the services provided by TAROM for Romania, the Commission set out, in recitals 60 to 64 of the contested decision, the reasons why it considered that the aid measure met the requirements laid down in points 43 and 44 of the Guidelines, on the ground that TAROM’s activity, namely the passenger air transport services which it provided, was of particular importance for Romania for the reasons replicated in paragraph 49 above.

121 As regards, next, the absence of any indication in the contested decision of the market shares held by TAROM in the national and international segments of the Romanian market, it is apparent from paragraphs 50 to 53 and 73 above that such an indication was not necessary to enable the Commission to carry out an analysis of the detrimental consequences of the possible cessation of operations by TAROM for the entire air transport sector in Romania and, more generally, for the Romanian economy, and for it to be able to conclude that the aid measure met the requirements laid down in points 43 and 44 of the Guidelines.

122 As regards, furthermore, the complaint concerning the statement of reasons relating to the possibility of replicating TAROM’s services, it must be noted that, in recital 61 of the contested decision, the Commission took the view, relying on recitals 17 to 19 of that decision, that it appeared unlikely that airlines in competition with TAROM would step in to fully cover the domestic routes operated exclusively by TAROM, as their willingness to enter that market was presumably low. In that regard, recital 17 of that decision states that those domestic routes would not be attractive to those competitors, which are low-cost airlines, since demand for those routes is low in terms of passengers per flight and it would not be profitable to operate them with larger aircraft than those used by TAROM, such as those operated by such airlines. In recital 18 of that decision, it is stated that there would be no valid alternatives for the routes operated by TAROM in terms of proximity airports, minimum journey time and number of stops needed to reach the destination, since the flights offered by TAROM’s competitors for international routes were possible only with one or two stops. Lastly, in recital 19 of the contested decision, it is noted that TAROM’s competitors would not be able to offer, within a few months, additional capacity to take over the routes which would be abandoned and that, if they did so, the services offered would not be at the same level as those offered by TAROM in terms of flight frequency and quality of service.

123 As regards, lastly, the arguments relating to the statement of reasons concerning the implementation of the restructuring aid for TAROM up to 2019, it is sufficient to point out that, as is apparent from paragraphs 100 to 106 above, such implementation has no effect on the ‘one time, last time’ principle, compliance with which is required in points 70 to 75 of the Guidelines and, hence, on the compatibility of the aid measure in that regard. Accordingly, the Commission was not required to note, in the contested decision, that the restructuring aid for TAROM had been implemented up to 2019.

126 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission.

2. Orders Wizz Air Hungary Légiközlekedési Zrt. (Wizz Air Hungary Zrt.) to bear its own costs and to pay those incurred by the European Commission.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Wizz Air Hungary v Commission (TAROM; aide au sauvetage) (State aid - Air transport - Support measure taken by Romania - Judgment) [2022] EUECJ T-718/20 (04 May 2022) URL: http://www.bailii.org/eu/cases/EUECJ/2022/T71820.html Cite as: ECLI:EU:T:2022:276, EU:T:2022:276, [2022] EUECJ T-718/20

Court of Justice of the European Communities (including Court of First Instance Decisions)