Judgment_paragraph 2 · Deutsche Lufthansa AG v European Commission (C-594/19 P)

2The background to the dispute was set out as follows in the order under appeal:1 The appellant, [Deutsche Lufthansa], is an airline established in Germany, whose main activity is transporting passengers. Its main airport base is that of [Frankfurt am Main] (Germany).2 Ryanair Ltd is a low-cost Irish airline which uses the facilities of Frankfurt Hahn airport (Germany).3 Frankfurt Hahn airport is located in Land Rheinland-Pfalz (Federal State of Rhineland-Palatinate, Germany), approximately 120 kilometres from the city of Frankfurt am Main and 115 km from Frankfurt Main airport. Until 1992, there was a military airbase at the site on which Frankfurt Hahn airport is located. That base was later converted into a civil airport.4 From 1 January 1998, the operation of Frankfurt Hahn airport was entrusted to Flughafen Frankfurt Hahn GmbH (“FFHG”), whose capital was held by Flughafen Frankfurt/Main GmbH, the operator of Frankfurt Main airport, as the majority shareholder, and by the Federal State of Rhineland-Palatinate … On 31 December 2008, Flughafen Frankfurt/Main sold all of its shares in FFHG to the Federal State of Rhineland-Palatinate which, until 2017, held a majority shareholding of 82.5%, the remaining 17.5% being held by Land Hessen (Federal State of Hesse, Germany), which entered the capital of FFHG in 2002.5 Since 19 February 2009, FFHG has been included in the cash-pool of the Federal State of Rhineland-Palatinate. That pool is a system the purpose of which is to optimise the use of the surplus cash flow of the various holding companies, foundations and public undertakings of that federal state. By virtue of that shareholding, FFHG benefited from a credit line of EUR 45 million. This is the first measure examined in the decision [at issue].6 FFHG also obtained, in 2009, five loans from the Investitions- und Strukturbank of the Federal State of Rhineland-Palatinate (“the ISB”). This is the second measure examined in the decision [at issue].7 Finally, the loans agreed to by the ISB were guaranteed 100% by the Federal State of Rhineland-Palatinate. This is the third measure examined in the decision [at issue].8 By letter of 17 June 2008, the Commission of the European Communities informed the Federal Republic of Germany of its decision to initiate an initial formal investigation procedure under Article 108(2) TFEU concerning the financing of FFHG and its financial relations with, in particular, Ryanair. That case was registered under case number SA.21121 and concerned 12 measures, 7 for FFHG and 5 which concerned Ryanair and other airlines for some of those measures (“the Hahn I procedure”). That procedure culminated in Commission Decision (EU) 2016/789 of 1 October 2014 on the State aid SA.21121 (C 29/08) (ex NN 54/07) implemented by Germany concerning the financing of Frankfurt Hahn airport and the financial relations between the airport and Ryanair (OJ 2016 L 134, p. 46; “the Hahn I decision”). That decision is the subject of the action in Deutsche Lufthansa v Commission, registered at the Registry of the General Court as Case T‑492/15.9 In the meantime, by letter of 13 July 2011, the Commission notified the Federal Republic of Germany of a second decision to initiate a formal investigation procedure concerning alleged State aid in favour of Frankfurt Hahn airport consisting of the three measures referred to in paragraphs 5 to 7 above (“the measures [at issue]”). That decision was published in the Official Journal of the European Union on 21 July 2012 (OJ 2012 C 216, p. 1; “the Hahn II decision”).[The decision at issue]10 In the decision [at issue], the Commission found, first of all, that the following constituted State aid within the meaning of Article 107(1) TFEU, compatible with the internal market on the basis of Article 107(3)(c) TFEU: first, the credit line made available to FFHG from the cash-pool of the Federal State of Rhineland-Palatinate; secondly, loans Nos 2 and 5 from the ISB; and, thirdly, the guarantee issued by the Federal State of Rhineland-Palatinate to cover 100% of the outstanding balance of the ISB loans. The Commission then considered that loans Nos 1, 3 and 4 of the ISB did not constitute State aid.11 In addition to the Hahn I decision referred to in paragraph 8 above and the decision [at issue], the Commission adopted, on 31 July 2017, Decision C(2017) 5289 on State aid SA.47969, implemented by Germany concerning operating aid in favour of Frankfurt Hahn airport (OJ 2018 C 121, p. 9; “the Hahn III decision”). That decision is the subject of the action registered at the General Court Registry as Case T‑218/18. Lastly, the Commission initiated a procedure based on the complaint of the appellant lodged in 2015 and registered under case SA.43260 and extended repeatedly to seek 14 other measures in favour of Frankfurt Hahn airport and Ryanair (“the Hahn IV procedure”).’