Contents
Judgment of the General Court (Tenth Chamber, Extended Composition)29 March 2023note(State aid — Romanian air transport market — Aid granted by Romania to Blue Air in the context of the COVID-19 pandemic — Blue Air rescue aid — Loan guaranteed by the Romanian State — Decision not to raise any objections — Action for annulment — Aid intended to make good the damage caused by an exceptional occurrence — Article 107(2)(b) TFEU — Assessment of the damage — Causal link — Beneficiary’s pre-existing difficulties — Taking avoidable costs into account — Guidelines on State aid for rescuing and restructuring non-financial undertakings in difficulty — Article 107(3)(c) TFEU — Contribution of the aid to an objective of common interest — One time, last time condition for rescue aid — Principle of non-discrimination — Freedom to provide services — Freedom of establishment — Obligation to state reasons)In Case T‑142/21,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,vEuropean Commission, represented by L. Flynn, V. Bottka and I. Barcew, acting as Agents,THE GENERAL COURT (Tenth Chamber, Extended Composition),composed, at the time of the deliberations, of A. Kornezov, President, E. Buttigieg, K. Kowalik-Bańczyk, G. Hesse (Rapporteur) and D. Petrlík, Judges,Registrar: P. Cullen, Administrator,having regard to the written part of the procedure,further to the hearing on 12 July 2022,gives the following
JudgmentOnly the paragraphs of the present judgment which the Court considers it appropriate to publish are reproduced here.
1By its action under Article 263 TFEU, the applicant, Wizz Air Hungary Légiközlekedési Zrt. (Wizz Air Hungary Zrt.), seeks the annulment of Commission Decision C(2020) 5830 final of 20 August 2020 on State Aid SA.57026 (2020/N) – Romania – COVID-19: Aid to Blue Air (‘the contested decision’).
Background to the dispute
2After a pre-notification stage, which started on 10 April 2020, on 18 August 2020 Romania notified the European Commission, in accordance with Article 108(3) TFEU of State aid in the form of a 100% State guarantee on a loan of 300775000 lei (RON) (approximately EUR 62130000) with subsidised interest rates (‘the measure at issue’) in favour of the airline Blue Air Aviation S.A. (‘Blue Air’).
3Blue Air is a private Romanian airline with bases in Romania, Italy and Cyprus, the shares in which are held by the Romanian company Airline Invest SA (99.99%) and a US citizen (0.01%). Its main activity is the provision of passenger air transport and aircraft maintenance services. In 2019, Blue Air transported around 4 million passengers and recorded a turnover of approximately EUR 414 million. As of September 2019, the airline operated a fleet of 23 aircraft. Blue Air operated on both domestic and international routes.
4The measure at issue concerns two separate State aid measures granted on two different legal bases, each covering a defined aid amount, namely:– a damage compensation measure under Article 107(2)(b) TFEU in an amount of EUR 28290000 for a period of six years, to make good the damage suffered directly by Blue Air due to the cancellation or rescheduling of its flights following the imposition of travel restrictions, and in particular the containment measures linked to the COVID-19 pandemic in the period from 16 March 2020 to 30 June 2020 (‘the damage compensation measure’);– rescue aid under Article 107(3)(c) TFEU, read in conjunction with the Guidelines on State aid for rescuing and restructuring non-financial undertakings in difficulty (‘the Guidelines’), in the amount of EUR 33840000 for a limited period of six months to partially cover Blue Air’s urgent liquidity needs caused by the heavy operating losses which it reported following the COVID-19 pandemic and enable it to continue operations while working out a viable restructuring plan (‘the rescue aid’).…
Forms of order sought
6The applicant claims that the Court should:– annul the contested decision; and– order the Commission to pay the costs.
7The Commission contends that the Court should:– dismiss the action as unfounded;– order the applicant to pay the costs.
Law…
First plea in law, alleging misapplication of Article 107(2)(b) TFEU and a manifest error of assessment relating to the proportionality of the damage compensation measure…
The first part of the first plea relating to the assessment of the damage caused to Blue Air…
19In the first place, it should be noted, as is apparent from paragraphs 29, 30 and 93 to 96 of the contested decision, that the Commission compared, for the purposes of assessing the damage, on the one hand, Blue Air’s financial situation in which the damage caused by the travel restrictions imposed in the context of the COVID-19 pandemic had already materialised and, on the other hand, a counterfactual scenario that would have occurred in the absence of those restrictions, which took into account the revenues and costs provided for in the 2020 budget for the period from 16 March to 30 June 2020.
20However, Blue Air’s pre-existing difficulties prior to the COVID-19 pandemic were reflected in both scenarios. First, the financial situation of Blue Air in which the damage caused by the travel restrictions had already materialised corresponded to the actual results of Blue Air during the relevant period, which necessarily reflected the impact of Blue Air’s pre-existing difficulties. Secondly, it should be noted, as the Commission did, and as is apparent from the methodology described, inter alia, in paragraphs 29, 30 and 93 to 96 of the contested decision, that the 2020 budget for the period from 16 March to 30 June 2020, on which the counterfactual scenario was based, also reflected the impact of Blue Air’s pre-existing difficulties prior to the COVID-19 pandemic. Therefore, as the Commission essentially points out, since the impact of the pre-existing difficulties was reflected in both scenarios, it follows, implicitly but necessarily, that this impact was neutralised in the calculation of the damage caused by the travel restrictions imposed during the period from 16 March to 30 June 2020 in the context of the COVID-19 pandemic.
21Paragraph 29 of the contested decision states that the eligible costs for the period from 16 March to 30 June 2020 correspond to the damage directly caused to Blue Air by the restrictions due to the COVID-19 pandemic during that period. The damage is thus defined as the loss of revenue resulting from those restrictions, from which shall be deducted the avoided costs recorded in relation to the income and costs estimated in the 2020 budget for the duration of the said period. Moreover, the estimated net profit in the 2020 budget for the same period is excluded from the amount of damages.
22While the applicant does not dispute the methodology used to determine the amount of the damage compensation measure (see paragraph 19 above), it develops an argument relating to the appropriateness of the 2020 budget, as established before the imposition of travel restrictions.
23Thus, as regards the applicant’s argument that the Commission should have verified whether the 2020 budget was realistic or potentially too optimistic, it should be noted that the Commission based its counterfactual scenario on the revenue and costs foreseen in the 2020 budget for the period from 16 March to 30 June 2020 as the reference values for the calculation of damages, since those values, according to Romania, provided a better approximation of the damages than the actual revenue and costs recorded in the corresponding months of 2019. In that regard, it is apparent from paragraphs 30 and 95 of the contested decision that that choice is explained by the desire to take two factors into account. First, the transformation of Blue Air’s business model into an entirely low-cost air carrier prevented it from generating revenue from charter flights or from the leasing of aircraft with crew, maintenance and insurance included in 2020, contrary to what had occurred in 2019. Secondly, the delayed delivery of six new Boeing 737‑MAX aircraft forced Blue Air to continue operating six older aircraft, reducing the estimated average available seat capacity by 10% and the utilisation of the existing fleet by almost 10%, also increasing maintenance costs by EUR 25 million compared to 2019. It follows that, by relying on the 2020 budget, the Commission estimated the damage at EUR 28.57 million based on the earnings before interest and taxes (EBIT) for the period from 16 March to 30 June 2020. In so doing, the Commission adopted a conservative approach, which resulted in a lower quantification of damages than would have been obtained by using the actual financial results of the corresponding months of 2019 as a benchmark since these would have led to a higher estimate of damages, valued at EUR 33.51 million on the basis of EBIT.
24In addition, as stated in paragraph 32 of the contested decision, Blue Air suffered a loss of operating revenue as a result of a reduction in the number of flights operated and a reduced load factor for the few remaining flights in the months of March to June 2020. It should be pointed out that, as is apparent from that same paragraph and as the Commission stated at the hearing, the amount of the cost reductions was deducted from the loss of profit. Those reductions included lower direct operating costs, indirect cost savings and cost differences related to depreciation, wet-leasing and penalties. This resulted in net losses eligible for compensation of EUR 28.29 million. In that regard, it should be noted that the amount of EUR 28.57 million, referred to in paragraphs 30 and 95 of the contested decision, constitutes an intermediate step in the calculation of the amount of damages.
25Furthermore, it should be noted, as is apparent from paragraphs 31 and 96 of the contested decision, that the Romanian authorities excluded the earnings foreseen in the 2020 budget for the period from 16 March to 30 June 2020 from the damage compensation, which means that the compensation proposed was below the quantified damage.
26Moreover, as the Commission rightly points out in its defence, the number of passengers actually transported by Blue Air in January and February 2020, that is to say, before the imposition of the travel restrictions, was very close to the estimates in the 2020 budget. This demonstrates that the budgeted revenue for the period from 16 March to 30 June 2020 would also have been realistic in the absence of those restrictions.
27Thus, it must be held that the applicant’s claim as to the amount of the potential reduction in Blue Air’s revenue in 2020 compared to 2019 is purely speculative. As regards the argument that the reduction in total capacity and aircraft utilisation could entail a reduction in the amount of Blue Air’s revenue in relation to 2019, it should be noted that, as is apparent from paragraphs 30 and 95 of the contested decision, the impact of reduced available seat capacity, lower aircraft utilisation and increased maintenance costs has already been taken into account by the Commission when examining the 2020 budget.
28Therefore, it must be held that the applicant’s claim is not substantiated and fails to demonstrate that the counterfactual scenario based on the 2020 budget and drawn up by the Commission was not plausible.
29In addition, it should be noted that, in the present case, even though Blue Air was faced with pre-existing difficulties, the applicant has not identified any specific cost item which, in its view, should have been excluded or treated differently by the Commission on the ground that those costs were caused by those pre-existing difficulties, and not by the travel restrictions imposed during the period from 16 March to 30 June 2020 in the context of the COVID-19 pandemic.
30Accordingly, it must be held that, as the impact of Blue Air’s pre-existing difficulties on the COVID-19 pandemic was reflected in the two scenarios mentioned above, it follows, implicitly but necessarily, that that impact was neutralised in the calculation of the damage caused by the travel restrictions imposed during the period from 16 March to 30 June 2020 in the context of that pandemic.
31The applicant’s argument must therefore be rejected.
32In the second place, as regards the applicant’s argument that the Commission failed to ensure that Blue Air had taken the necessary steps to reduce its costs during the period from 16 March to 30 June 2020, so that not only avoided costs but also ‘avoidable’ costs, that is to say, costs which it could have avoided but which it nevertheless incurred, are excluded from the compensation for damage, it should be noted that, in paragraphs 92 and 93 of the contested decision, the Commission explained that the damage to be compensated corresponded to the loss of added value, defined as the difference between, on the one hand, Blue Air’s loss of profit, that is to say, the difference between the turnover it could have expected to achieve during the period from 16 March to 30 June 2020 on the basis of the 2020 budget, in the absence of the travel restrictions and other containment measures related to the COVID-19 pandemic, and the turnover actually achieved during that period, adjusted by Blue Air’s profit margin, and, on the other hand, the avoided costs.
33In that regard, the Commission defined the avoided costs as being those which Blue Air would have incurred during the period from 16 March to 30 June 2020 if its activities had not been affected by the travel restrictions and containment measures linked to the COVID-19 outbreak, and which it did not have to bear as a result of the cancellation of its operations. The Commission stated, in paragraph 94 of the contested decision, that the avoided costs concerned, for example, fuel costs and personnel costs. It also explained that the avoided costs had to be quantified by comparing the costs foreseen in the 2020 budget with the costs actually incurred by Blue Air during the period from 16 March to 30 June 2020.
34In those circumstances, and contrary to what the applicant claims, it cannot be held that the assessment of the avoided costs, as set out in the contested decision, is opaque.
35Furthermore, it should be noted in the present case that the applicant still fails to specify in concrete terms what other costs, apart from the avoided costs already taken into account, Blue Air could have avoided and should therefore have been excluded from the assessment of the damage caused to it. In those circumstances, the Court cannot but find that the applicant’s complaint concerning an alleged failure by the Commission to take account of ‘avoidable’ costs is too abstract and is not substantiated by any specific data.
36Therefore, that argument must be rejected.
37In the third place, as regards the argument that the Commission failed to take account of the damage suffered by other airlines, it should first of all be recalled that, under Article 107(2)(b) TFEU, aid to make good the damage caused by natural disasters or exceptional occurrences is compatible with the internal market.
38In the present case, the applicant does not dispute the Commission’s assessment in the contested decision that the COVID-19 pandemic should be regarded as an ‘exceptional occurrence’ within the meaning of Article 107(2)(b) TFEU. Furthermore, it is apparent from paragraphs 7, 86 and 87 of the contested decision that the COVID-19 pandemic led to the suspension of most air transport passenger services, having regard, in particular, to the travel restrictions and other containment measures imposed and the closure of the borders of several EU Member States, including Romania.
39Accordingly, the applicant is correct in observing that Blue Air is not the only company, nor the only airline, to be affected by the exceptional occurrence at issue.
40However, the fact remains, as the Commission correctly submits in its defence, that there is no requirement for Member States to grant aid to make good the damage caused by an exceptional occurrence within the meaning of Article 107(2)(b) TFEU.
41More specifically, first, while Article 108(3) TFEU requires Member States to notify their plans as regards State aid to the Commission before they are put into effect, it does not, however, require them to grant any aid (order of 30 May 2018, Yanchev, C‑481/17, not published, EU:C:2018:352, paragraph 22).
42Secondly, an aid measure may be directed at making good the damage caused by an exceptional occurrence, in accordance with Article 107(2)(b) TFEU, irrespective of the fact that it does not make good the entirety of that damage.
43Consequently, it does not follow from Article 108(3) TFEU or from Article 107(2)(b) TFEU that Member States are obliged to make good the entirety of the damage caused by an exceptional occurrence, such that they similarly cannot be required to grant aid to all of the victims of that damage either (judgments of 14 April 2021, Ryanair v Commission (SAS, Denmark; Covid-19), T‑378/20, under appeal, EU:T:2021:194, paragraph 24, and of 14 July 2021, Ryanair and Laudamotion v Commission (Austrian Airlines; COVID-19), T‑677/20, under appeal, EU:T:2021:465, paragraph 57).
44In those circumstances, the applicant is not justified in claiming that the Commission was required to assess, in the contested decision, the damage caused to airlines other than Blue Air.…
Second plea in law, alleging infringement of Article 107(3)(c) TFEU…
Blue Air’s eligibility for the rescue aid…
55It should be recalled in that respect that point 22 of the Guidelines sets out three cumulative conditions in order for aid granted to a company belonging to a group to be regarded as compatible with the internal market. Accordingly, it is the task of the Commission to examine (i) whether the beneficiary of the aid belongs to a group and, as the case may be, the composition of that group, (ii) whether the difficulties faced by the beneficiary are intrinsic and are not the result of an arbitrary allocation of costs within the group and (iii) whether those difficulties are too serious to be dealt with by that group itself.
56The objective of that prohibition is therefore to prevent a group of undertakings from having the State bear the cost of a rescue operation for one of the undertakings belonging to the group, when that undertaking is in difficulty and the group itself has created those difficulties or has the means to deal with them on its own (see, to that effect, judgment of 13 May 2015, Niki Luftfahrt v Commission, T‑511/09, EU:T:2015:284, paragraph 159).
57It is apparent from paragraphs 27 and 105 of the contested decision that 99.99% of Blue Air’s shares are held by the Romanian company Airline Invest, established in December 2019, and that the remaining 0.01% belong to a US citizen. It is also stated that 99.99% of the shares in Airline Invest, which does not carry out any activities other than holding the shares in Blue Air, are themselves held by an individual who does not carry on any direct or indirect activity.
58The applicant’s line of argument consists of maintaining that the natural person holding 99.99% of the shares in Airline Invest could be the front man of another natural or legal person. It must be stated that that line of argument is not substantiated and remains hypothetical, since it is based on mere suppositions drawn solely from press articles the content of which is not such as to demonstrate that Airline Invest’s shareholder is a front man. Consequently, that argument is purely speculative and is supported only by the evidence to which the applicant refers. Moreover, when questioned on that point at the hearing, the applicant was unable to provide more specific information in that regard.
59Therefore, in the absence of evidence to that effect, the argument that the Commission conducted an insufficient examination of the first condition laid down in point 22 of the Guidelines, namely whether the beneficiary of the aid belonged to a group, must be rejected.…
Contribution of the rescue aid to an objective of common interest…
65In the present case, it is necessary to examine the applicant’s arguments in order to ascertain whether the Commission made a manifest error of assessment in considering, first, that the service in question was ‘important’ and, second, that it was hard to replicate it, within the meaning of point 44(b) of the Guidelines.
66In the first place, as regards the important nature of the service provided by Blue Air, it is apparent in particular from paragraphs 51, 52, 58, 108 and 109 of the contested decision that that airline ensured the connectivity of Romania in so far as it served domestic and international air routes, some of which linked remote areas of that Member State which were difficult to access by land due to the poor state of the Romanian road and rail infrastructure.
67In addition, it should be noted that, as stated in paragraph 111 of the contested decision, some small national airports may not even be served or may be served to a significantly reduced extent after Blue Air’s exit from the market given, first, that the other low-cost airlines have never shown any interest in serving domestic routes from or to some of these airports and, secondly, Romania’s national airline, TAROM, does not offer low-cost air services, which is not contested by the parties.
68Furthermore, as regards international air routes, it is apparent from paragraph 52 of the contested decision that Blue Air was the only low-cost airline operating routes from Romania to the airports of Florence (Italy), Stuttgart (Germany), Cologne/Bonn (Germany), Amsterdam (Netherlands), Milan-Linate (Italy), Paris-Orly (France) and Helsinki (Finland).
69To that extent, the Commission was right to consider that Blue Air performed an important service by offering, on the one hand, routes to and from several remote Romanian regions, whose connectivity by air was of particular economic importance in view of the state of the national land infrastructure, and, on the other hand, routes to and from several major European cities, thereby contributing to the international connectivity of those regions.
70Moreover, as the Commission noted, the passenger air transport services provided by Blue Air targeted, in particular, two specific categories of passengers, namely small local entrepreneurs and the Romanian community established outside the country, particularly active in Italy, France, Spain, Germany and the United Kingdom, thanks to a unique network of national and international routes, specifically calibrated to their needs, which it had developed for that purpose over the last 15 years. The contested decision states in that regard that, in the context of the absence of valid alternatives due to the poor state of the Romanian road and rail infrastructure, which is not disputed by the applicant, both categories of highly mobile passengers, who travel within Romania for professional purposes (for the first category) or live and work abroad and make frequent return flights between their country of origin and their respective place of residence (for the second category), depend on low-cost air routes.
71Thus, the Commission’s analysis in the present case is based, in essence, on the finding that the cessation of Blue Air’s activity would be detrimental to both the regional and international connectivity of Romania and, in particular, of certain remote regions of the country, as well as to the mobility of the two categories of passengers referred to in paragraph 70 above, and that, in the event of the beneficiary’s exit from the market, there would be a concrete risk of disruption to certain passenger air transport services considered important by that Member State.
72Furthermore, it is apparent from paragraphs 59, 62, 111 and 112 of the contested decision that, by ensuring the mobility of small local entrepreneurs between the various regions of the country, Blue Air contributes to the economic life of those regions.
73Furthermore, as is apparent from paragraphs 53 and 110 of the contested decision, Blue Air’s exit from the market would have had a direct impact on more than 400000 passengers, more than 250000 of whom had their flights cancelled due to travel restrictions imposed by the European States to limit the spread of the COVID-19 pandemic and were either awaiting reimbursement of their tickets or had accepted a credit note to be used on another flight. As regards the remaining 150000 passengers, they had booked a flight with Blue Air in the following 12 months.
74In the light of the evidence referred to in paragraphs 65 to 73 above, the applicant did not submit to the Court any evidence from which it could be concluded that the Commission had made a manifest error of assessment when it considered that Blue Air provided an important service within the meaning of point 44(b) of the Guidelines.
75Furthermore, none of the arguments put forward by the applicant before the Court is capable of calling that conclusion into question.
76First, as regards the applicant’s argument that Blue Air is not a low-cost airline and that the average price of the tickets offered by Blue Air is even higher than that of the tickets sold by the applicant, it must be noted that the applicant claims, in support of its argument, that the average price of its tickets was EUR 68.27 in 2019 and EUR 55.59 in 2020, whereas, for those same two years, the average price of the tickets offered by Blue Air was EUR 89.09 and EUR 63.37 respectively.
77When questioned on that point at the hearing, the applicant added that, in addition to the pricing aspect in itself, the other characteristic of low-cost airlines is the particularly high load factor of their aircraft. In the present case, according to the applicant, the load factor of its aircraft is, overall, higher than that of the aircraft operated by Blue Air.
78The two circumstances referred to by the applicant, even if proved, are not, in themselves, capable of demonstrating that the service provided by Blue Air was not important within the meaning of point 44(b) of the Guidelines. They cannot call into question the finding, set out in paragraphs 65 to 73 above, that the service provided by Blue Air ensured the connectivity of several Romanian regions and facilitated the travel of two well-defined categories of passengers, small entrepreneurs and Romanian citizens established in other Member States, thus ensuring the connectivity of Romania as a whole and therefore constituting an important service for those passengers. In addition, it should be noted that the numerical comparison of the average ticket prices does not, in any event, demonstrate that Blue Air is not a low-cost airline in the same way as the applicant and, moreover, shows that Blue Air has been able to reduce the average price of its tickets by more than EUR 25 in one year, which in 2020 was only EUR 7.78 higher than that of the applicant’s tickets.…
81Thirdly, as regards the applicant’s argument that the national routes operated by Blue Air could have been the subject of public service obligations rather than the rescue of Blue Air, it must be noted that the applicant has not demonstrated that the introduction of such public service obligations could have been carried out within a sufficiently short period of time, while ensuring the continued connectivity of those regions.
82In the second place, as regards the question whether the services provided by Blue Air were complicated to replicate within the meaning of point 44(b) of the Guidelines, it is apparent from paragraphs 54, 55, 63, 109, 110 and 112 of the contested decision that, in the circumstances of the present case, it would not have been possible for other airlines, in particular low-cost airlines, in the short term to ensure all those services, since several of them had already recently closed some of their air routes, also operated by Blue Air, thus leaving Blue Air alone to operate them.
83Moreover, first, it should be noted that, according to the Commission, the other low-cost airlines have little or no presence on the majority of Blue Air’s routes in so far as their business model is based on the use of so-called ‘secondary’ airports, namely airports located at a certain distance from city airports regarded as ‘primary’. Indeed, ‘secondary’ airports require the payment of lower airport charges and slots are more readily available than at major national airports.
84In that regard, the applicant acknowledges that it does not serve certain ‘primary’ airports served by Blue Air.
85Consequently, it must be held that the Commission was right to find, in paragraph 109 of the contested decision, that Blue Air occupied a niche which was not operated by other low-cost airlines on the Romanian market. Thus, the applicant has not demonstrated that it would have been capable of taking over the air routes operated by Blue Air since its business model differed considerably from that of Blue Air.
86In the same vein, the applicant has also not contested the fact that Blue Air’s competing low-cost airlines were not interested in taking over the air routes to or from certain Romanian regional airports, such as Oradea (Romania) and Baia Mare (Romania), in so far as those competing airlines already operated air routes from other regional airports, which risked leaving the former airports unserved or poorly served in the event of Blue Air’s exit from the market.
87Furthermore, footnote 19 of the contested decision states that the low-cost airlines competing with Blue Air had already withdrawn from Oradea and the Bucharest-Cluj (Romania) route in 2018, which confirms the Commission’s assessment that those airlines had no interest in offering that cover.
88In addition, it should be noted that, at the hearing, the applicant argued that various routes were no longer served by Blue Air, such as those to and from Oradea. However, in so doing, the applicant refers to information which is current and therefore subsequent to the date of the contested decision. In that regard, it should be recalled that the legality of the contested decision must be assessed on the basis of the information available to the Commission at the time when it was adopted, and not on the basis of subsequent events. That argument must therefore be rejected.
89Secondly, the applicant claims that it operated more than 80% of the international air routes also operated by Blue Air. In that regard, however, it should be pointed out, as the Commission did, that it is not apparent from the annexes to the application that the applicant is present on 80% of the air routes operated by Blue Air, since those annexes refer only to international ‘destinations’ from Romania, and not to specific routes. In addition, the applicant refers to data subsequent to the contested decision in that it refers to data covering the whole of 2020. Thus, in view of their content and the period to which they relate, those data do not sufficiently support the applicant’s argument. In any event, those data confirm that a significant proportion of the routes served by Blue Air were not served by the applicant.
90Thirdly, as regards the argument that the lost capacity of an airline could be quickly replaced by other airlines wishing to redeploy their excess capacity, it must be pointed out that there is no evidence to show that the applicant’s excess capacity, which originated in the measures adopted by the Member States in the context of the COVID-19 pandemic, would enable it to operate the air routes previously operated by Blue Air. Therefore, it has not been shown that, once it had resumed its own activity, the applicant would still have sufficient transport capacity to resume those routes. Overcapacity in the sector is not in itself sufficient to give rise to the presumption that competitors will use spare capacity on any terms and incur additional costs while providing an uninterrupted service at affordable prices.
91Consequently, it must be held that the applicant has not demonstrated that airlines competing with Blue Air would have been prepared to take over all of the routes operated by Blue Air in the event of its exit from the market.
92Fourthly, even assuming that the replacement of Blue Air had 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 Blue Air, that replacement 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.
93Although the applicant submits that it was prepared to operate Blue Air’s routes in less than six months in the event of its exit from the market, it is apparent from the annexes to the application relating to the applicant’s expansion in 2020 that most of the air routes which it launched either were not served by Blue Air at all in 2019 and 2020, or continued to be served by Blue Air in 2020. It must therefore be held that the applicant has not demonstrated that Blue Air had already been replaced on certain routes or could easily be replaced within six months of its cessation of operations.
94Having regard, in particular, to the importance of the role played by Blue Air in ensuring affordable air routes for two categories of passengers who make an essential contribution to Romania’s regional economy, namely small local entrepreneurs and the Romanian community established abroad, and to the consequences which its failure would have on that economy and on more than 400000 passengers (see paragraph 73 above), it must be concluded that the exit of Blue Air from the market would have entailed a risk of interruption of an important service which would have been difficult to replicate in the particular circumstances of the case.
95The Commission was therefore right to find that the rescue aid met the requirements laid down in points 43 and 44 of the Guidelines.…
Assessment of the appropriateness of the rescue aid…
99First, as regards the applicant’s argument that the interest rate applied to the loan in question is not sufficiently high in relation to the risks associated with that loan, it should be noted that point 56 of the Guidelines provides as follows:‘The level of remuneration that a beneficiary is required to pay for rescue aid should reflect the underlying creditworthiness of the beneficiary, discounting the temporary effects of both liquidity difficulties and State support, and should provide incentives for the beneficiary to repay the aid as soon as possible. The Commission will therefore require remuneration to be set at a rate not less than the reference rate set out in the Reference Rate Communication … for weak undertakings offering normal levels of collateralisation (currently 1-year IBOR plus 400 basis points) … and to be increased by at least 50 basis points for rescue aid the authorisation of which is extended in accordance with point 55(d)[(ii)].’
100In the present case, it is not disputed by the parties that the interest rate attached to the loan in question is equivalent to or close to the reference rate referred to in point 56 of the Guidelines and therefore does not infringe the threshold imposed.
101More specifically, it is apparent from paragraph 19 of the contested decision that, if the loan were to be granted in two tranches, the interest rate of the part of the loan relating to rescue aid and the corresponding State guarantee would be at least equal to the level of the one-year Romanian Interbank Offer Rate (ROBOR) or the one-year Euro Interbank Offered Rate (Euribor) (depending on the currency in which the loan is denominated) plus a risk margin of at least 400 basis points. If the loan were to be granted in a single tranche, the interest rate of the entire loan and the guarantee would be at least equal to the level of the one-year ROBOR or Euribor (depending on the currency in which the loan is denominated) plus a risk margin of not less than 400 basis points.
102Contrary to what the applicant submits, it is clear from point 56 of the Guidelines that there is no need to increase that rate before any extension of the authorisation.
103Therefore, given that the Commission was not in a position to foresee with certainty whether or not Romania was going to submit a restructuring plan before the deadline, the applicant cannot complain that it did not increase the interest rate applied from the time the contested decision was adopted. No such deadline is provided for in point 56 of the Guidelines.
104Furthermore, it should be noted, as the Commission did, that the applicant’s argument that the interest rate should be higher in the absence of securities provided by the beneficiary is the result of a misreading of point 56 of the Guidelines. This point provides for the application of the rate to weak undertakings offering normal levels of collateralisation (see paragraph 99 above). Thus, that point requires the application of a minimum interest rate that applies to all rescue aid, irrespective of the guarantees provided by the beneficiaries in each case. As the Commission points out, this is due to the urgency inherent in rescue aid, which requires the establishment of a clear rule applicable in all cases, so that the Commission does not need to carry out an examination of the appropriateness of the remuneration of rescue aid on a case-by-case basis.…
107Thirdly, the applicant argues that the Commission made an error of assessment in that it should have required Romania to submit a restructuring plan within a period of less than six months. In its view, it was clear from the outset that the loan would not be repaid within the six-month period provided for and that Romania would eventually have that period extended by submitting a restructuring plan. In the context of the COVID-19 pandemic, all airlines suffer serious losses and an aid measure granted de facto for a period of more than six months to one of them creates a significant distortion.
108However, those arguments of the applicant do not render the Commission’s assessments implausible.
109It is clear from the wording of point 55(d) of the Guidelines that it is for the Member State to provide the Commission, no later than six months after the rescue aid has been authorised, with proof of repayment of the loan, a restructuring plan (provided that the beneficiary can be classified as a firm in difficulty) or a liquidation plan. It is true that the Member State concerned is always entitled to submit one of those documents before the end of the six-month period, but it is not apparent from the wording of that point that the Commission is authorised to set a shorter period on its own initiative.
110Similarly, point 55(d)(ii) of the Guidelines clearly provides, in the event that the Member State has submitted a restructuring plan, that the authorisation of the rescue aid will automatically be extended until the Commission takes a final decision on that plan. Moreover, no such authorisation was granted in the contested decision.
111Lastly, it must be pointed out that, according to the Guidelines and in particular point 60 thereof, the purpose of rescue aid is to keep the beneficiary in business for six months, an objective which is difficult to reconcile with a reduction in the duration of the aid.…
Assessment of the proportionality of the rescue aid…
115First, the applicant notes that, as is apparent from paragraph 123 of the contested decision, the rescue aid covered, in part, Blue Air’s liquidity needs caused by travel restrictions in the context of the COVID-19 pandemic. Thus, according to the applicant, by authorising that aid, the Commission acted contrary to the objectives and logic of its communication of 19 March 2020 entitled ‘Temporary Framework for State aid measures to support the economy in the current COVID-19 outbreak’ (OJ 2020 C 91 I, p. 1) and amended on 3 April 2020 (OJ 2020 C 112 I, p. 1), which excluded the granting of aid to undertakings that were already in difficulty as of 31 December 2019, and allowed the granting of aid to the undertaking that is the least suited to reach the objective of aid related to the COVID-19 pandemic.
116In that regard, first, it should be noted that neither of the two aid measures at issue was authorised under the communication referred to in paragraph 115 above.
117Secondly, it should be noted that the damage compensation measure was intended to compensate Blue Air for the damage suffered during the period between 16 March and 30 June 2020, whereas the rescue aid allowed Blue Air to cover its liquidity needs for a different period, namely from September 2020 to February 2021. Moreover, as is apparent from the contested decision, the aid granted to Blue Air under the damage compensation measure was taken into account in the liquidity plan for the period from September 2020 to February 2021 and thus reduced the amount of rescue aid required.
118Accordingly, the applicant’s claim is not such as to call into question the Commission’s assessment of the proportionality of the rescue aid.
119Secondly, the applicant argues that the Commission made a manifest error of assessment in finding that the rescue aid did not exceed the minimum necessary to achieve the objective of common interest.
120In that regard, point 60 of the Guidelines provides as follows:‘Rescue aid must be restricted to the amount needed to keep the beneficiary in business for six months. In determining that amount, regard will be had to the outcome of the formula set out in Annex I. Any aid exceeding the result of that calculation will only be authorised if it is duly justified by the provision of a liquidity plan setting out the beneficiary’s liquidity needs for the coming six months.’
121As regards the planned amount of rescue aid, it is apparent from paragraphs 45, 47, 112 and 118 of the contested decision that that amount is based on the liquidity plan drawn up by Romania. The Commission assessed that plan, which was based on revenue and cost projections, which formed part of the unprecedented and uncertain context of the period in which they had been drawn up in relation to all projections of the airlines’ activities. In its assessment, it considered that the liquidity plan did not include unusual or illegitimate expenditure such as the financing of structural measures or the expansion of activities beyond previous commitments.
122The applicant does not put forward any argument capable of casting doubt on the plausibility of the liquidity plan. On the contrary, it merely compares Blue Air’s liquidity needs for the period taken into account for the rescue aid, namely between September 2020 and February 2021, with the unavoidable costs for an earlier period, between March and June 2020.
123However, that comparison is irrelevant for the assessment of the amount of rescue aid. As the Commission rightly points out in its defence, there is no reason to suppose that the liquidity needs and unavoidable costs mentioned above, which moreover relate to different periods, correspond. It follows that the Commission was right to rely on the assumption, considered to be the most likely at the time of the adoption of the contested decision, of a resumption of air traffic during the rescue aid period, which therefore led to an increase in avoided costs (fuel, maintenance of aircraft, landing charges, etc.) during the containment period.
124Thirdly, the applicant submits that the Commission was wrong to take the view, in paragraph 122 of the contested decision, that the liquidity plan did not include expenditure to finance structural measures. However, according to the applicant, the Commission failed to take account of the fact that Blue Air’s previous commitments included the large-scale replacement of its fleet, with the purchase of six Boeing 737‑MAX aircraft. Thus, rescue aid would in fact make it possible to finance structural measures and activities that go beyond what is strictly necessary to keep Blue Air afloat.
125In that regard, it should be noted that, according to the Guidelines, rescue aid must be limited to the amount necessary to keep the beneficiary in business for six months and cannot be used to finance structural measures, such as the acquisition of important branches or assets. However, as the Commission has argued, it cannot be ruled out that the need for liquidity during those six months also includes the payment of instalments due during that period under earlier commitments concerning the replacement of aircraft. The non-repayment of such instalments could lead to the insolvency of the undertaking in difficulty, which would clearly run counter to the objective pursued.
126Fourthly, as regards the applicant’s complaint that the Commission did not impose burden-sharing in order to have part of the losses absorbed by the beneficiary’s shareholders, it should be pointed out, in that regard, that measures to share the burden among existing investors are required only during the restructuring period and not during the rescue period, as is clear from the wording of point 61 of the Guidelines.
127The Commission was therefore right not to impose burden-sharing.…
Adequacy of the Guidelines for the purpose of assessing the aid…
132With regard to the Guidelines, it should be noted that the applicant has not disputed that the rescue aid can be regarded as such within the meaning of those Guidelines. It merely complains that the Commission failed to examine whether those Guidelines were appropriate for assessing the rescue aid in the light of the exceptional circumstances of the COVID-19 crisis.
133In support of its argument, the applicant cites the judgment of 8 March 2016, Greece v Commission (C‑431/14 P, EU:C:2016:145, paragraph 70) of which states that, ‘in the specific area of State aid, the Commission is bound by the guidelines that it issues, to the extent that they do not depart from the rules in the TFEU, including, in particular, Article 107(3)(b) TFEU … and to the extent that their application is not in breach of general principles of law, such as equal treatment, in particular where exceptional circumstances, different from those envisaged in those guidelines, distinguish a given sector of the economy of a Member State’.
134Paragraph 72 of the judgment of 8 March 2016, Greece v Commission (C‑431/14 P, EU:C:2016:145), states that ‘the adoption of such guidelines does not relieve the Commission of its obligation to examine the specific exceptional circumstances relied on by a Member State, in a particular case, for the purpose of requesting the direct application of Article 107(3)(b) TFEU, and to provide reasons for its refusal to grant such a request, should the case arise’.
135In the present case, it should be noted that the COVID-19 pandemic and the measures taken to contain it gave rise to exceptional circumstances for many undertakings in Europe, in particular for airlines.
136It should be noted that, in the context of the fifth part of the second plea, the applicant has neither identified the specific rules of the Guidelines which, in its view, were rendered inappropriate because of the exceptional circumstances linked to the COVID-19 pandemic, nor explained the reasons why that is the case. Nor has it clarified whether, in its view, the Commission should disapply the Guidelines and instead apply Article 107(3)(c) TFEU directly. Such an argument is therefore too general and unsupported and thus does not enable the Court to understand its substance.…
Operative part
On those grounds,THE GENERAL COURT (Tenth Chamber, Extended Composition)hereby:
1.Dismisses the action;
2.Orders Wizz Air Hungary Légiközlekedési Zrt. (Wizz Air Hungary Zrt.) to pay the costs.
Delivered in open court in Luxembourg on 29 March 2023.
Source: EUR-Lex, © European Union, 1998-2026. Reuse authorised under Decision 2011/833/EU.