Judgment_paragraph 81 · Gmina Miasto Gdynia and Port Lotniczy Gdynia Kosakowo sp. z o.o. v European Commission (T-263/15)

81In particular, it is necessary to reject the Commission’s argument that PLGK did not demonstrate the extent to which the failure to call upon it to comment on the application of the 2014 Guidelines could have had an effect on its legal situation, or the extent to which the opportunity to comment in that regard could have resulted in a different content of the contested decision. The right of interested parties to be given an opportunity to submit their comments is in the nature of a substantive formality, for the purposes of Article 263 TFEU, infringement of which, as established in the present case, results in the annulment of the vitiated measure, without it being necessary to determine the existence of an effect on the party that alleges such an infringement, or ascertain that the outcome of the administrative procedure might have been different (see, to that effect, judgments of 6 April 2000, Commission v ICI, C‑286/95 P, EU:C:2000:188, paragraph 52, and of 8 September 2016, Goldfish and Others v Commission, T‑54/14, EU:T:2016:455, paragraph 47; Opinion of Advocate General Mengozzi in Bensada Benallal, C‑161/15, EU:C:2016:3, point 92). Moreover, and in any event, given the changes carried out in relation to the legal basis of the FEU Treaty (Article 107(3)(a) TFEU, then Article 107(3)(c) TFEU) and the applicable guidelines, which substantially modify the legal regime of the analysis of whether the operating aid is compatible, the effect of the comments which the interested parties might have submitted cannot be prejudged, even if the Commission, in the contested decision, reached an identical conclusion to that of the decision previously in force.

Gmina Miasto Gdynia and Port Lotniczy Gdynia Kosakowo sp. z o.o. v European Commission (T-263/15)

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