GC, 5th chamber, September 29, 2021, No T-448/18

THE GENERAL COURT (Fifth Chamber),

I. Background to the dispute

A. Measures at issue

1 The first applicant, Ryanair DAC, formerly Ryanair Ltd (‘Ryanair’), is an airline established in Ireland, operating more than 1 800 daily flights connecting 200 destinations in several countries in Europe and North Africa. The second applicant, Airport Marketing Services Ltd (‘AMS’), is a subsidiary of Ryanair providing marketing strategy solutions, with the bulk of its activity consisting in the sale of advertising space on the Ryanair website. The third applicant, FR Financing (Malta) Ltd, formerly Leading Verge.com Limited (‘LV’), is a subsidiary of Ryanair which develops internet-based tourism concepts and focuses in particular on air-based tourism.

2 Klagenfurt Airport (‘KLU’) is located on the outskirts of the city of Klagenfurt (Austria), which is the capital of the Austrian province of Carinthia, a mountainous region in the south of Austria. KLU was founded in 1915 as a military base and soon after was used for both military and civil purposes. That dual utilisation continues today. The airport’s runway is 2 270 metres long and has not been modified since 2000. The terminal has a maximum capacity of 600 000 passengers.

3 KLU has been owned and operated by Kärntner Flughafen Betriebsgesellschaft mbH (‘KFBG’) since 1939. Until 2003 the shares in KFBG belonged to the Republic of Austria (60%), the province of Carinthia (20%) and the city of Klagenfurt (20%). In April 2003 the province of Carinthia took over the shares of the Republic of Austria, committing itself to keeping the airport open for military purposes. From 2003 onwards the shares were therefore held by the province of Carinthia (80%) and the city of Klagenfurt (20%). In November 2008, the province of Carinthia’s 80% share in the airport was transferred to Kärntner Landes- und Hypothekenbank-Holding (‘KLH’).

4 KFBG has a wholly owned subsidiary, Destinations Management GmbH (‘DMG’), which provides various services to the airport. In particular, DMG acted as a consultant to attract airlines to the airport and concluded several agreements under which the airlines received considerable sums of money in exchange for marketing services.

5 KLH was a legal person governed by public law, which was established in 1990 by the Kärntner Landesholding-Gesetz (Law on the holding company of the province of Carinthia) of 13 December 1990 (LGBI No 37/1991). KLH was a sui generis legal person and a holder of special rights. It was not a corporation governed by commercial law, but was nevertheless registered in the Commercial Register under a company number. Likewise, KLH did not publish balance sheets or annual accounts, but rather, in accordance with Paragraph 28 of that law, made them available to the government of the province of Carinthia. KLH acted as the holding company for the shares of the province of Carinthia in the former Kärntner Landes-Hypothekenbank and other companies, such as Land Kärnten Beteiligungen GmbH and Kärntner Vermögensverwaltungs GmbH.

6 According to its articles of association, KLH was able to acquire, hold, administer and divest assets, in particular shares in companies, and to found companies. KLH was to carry out a strategic holding policy for all the companies transferred to the group of companies which it held. Synergy effects and clear competences were thus to be established and centralised control therefore made possible. KLH had to carry out its business in the interest of the province of Carinthia. The operational activities remained in the hands of the companies themselves. The province of Carinthia established a special-purpose fund called ‘Zukunft Kärnten’ for the direct and indirect financing and support of projects by KLH. The core of the fund amounted to EUR 500 million.

7 The board of KLH was appointed by the supervisory board of KLH. That latter body was in turn appointed by the government of the province of Carinthia. The articles of association stated that the members of the supervisory board were appointed in proportion to the political parties represented in the assembly of the province of Carinthia. Moreover, the supervisory board had to agree with any investment decision of the board above the amount of EUR 50 000. According to Article 5 of its articles of association, KLH was under the constant supervision of the province of Carinthia. The government of that province had to ensure that all KLH’s decisions were in the interest of the province of Carinthia.

8 The province of Carinthia decided on 28 April 2016 to dissolve KLH without liquidation. The assets held by KLH were moved into a new special-purpose vehicle called ‘Kärntner Beteiligungsverwaltung’ (K-BVG).

9 In 2002 and 2006 the applicants concluded several agreements with KLU’s operators.

1. The 2002 agreements

10 On 22 January 2002, KFBG and Ryanair concluded an airport services agreement (‘the 2002 ASA’). That agreement entered into force on 27 June 2002 for a period of five years and provided for an automatic renewal for a further five years if Ryanair fully complied with its commitments under that agreement. Under that agreement, Ryanair undertook to offer a service on at least a daily basis between KLU and London Stansted airport from 27 June 2002 to 26 June 2007 for a fixed fee per rotation. In addition, Ryanair was to levy a fixed amount per departing passenger as a passenger services charge for the airport plus a fixed amount per departing passenger as a security charge, and pay those charges to KLU. The 2002 ASA detailed the various services which KLU was to provide to Ryanair and provided for certain other payments to KLU, such as a fixed-percentage commission on all tickets sold at KLU.

11 On 22 January 2002, DMG and LV concluded a marketing agreement (‘the 2002 MSA between DMG and LV’). That agreement entered into force on the same day and was to end on 26 June 2007, with automatic renewal for a further five years provided that LV fully complied with its commitments under the agreement. According to that agreement, DMG commissioned LV to generate a promotional plan, arrange for the provision of links to DMG’s homepage and undertake other promotional activities in return for a fixed annual payment.

12 On the same day, DMG and AMS concluded another marketing agreement (‘the 2002 MSA between DMG and AMS’). That agreement, which entered into force on the same day for a five-year term, provided for a possible extension for an additional five years. Under that agreement, DMG appointed AMS to establish and operate, by 1 May 2002 at the latest and in return for annual fees, two links on the website www.ryanair.com to websites chosen by DMG to highlight the attractions of the province of Carinthia. AMS provided additional services if the parties so decided in accordance with Articles 5.1 and 5.2 of the agreement.

13 On 22 January 2002, a side letter to the 2002 MSA between DMG and LV (‘the 2002 side letter’) was concluded and entered into force on the same day. It was agreed between the parties that, in relation to the 2002 MSA between DMG and LV, a further payment for additional and intensified marketing measures within the duration of the agreement between DMG and LV was payable by DMG to LV.

14 The ASA of 2002, the 2002 MSA between DMG and LV, as amended, and the 2002 MSA between DMG and AMS (together ‘the 2002 agreements’) ended on 29 October 2005 when Ryanair discontinued its passenger air transport services between KLU and London Stansted airport.

2. The 2006 agreements

15 On 23 August 2006, KFBG and Ryanair entered into an agreement (‘the 2006 ASA’). That agreement concerned a service three times a week to London Stansted airport, to be operated from 19 December 2006 to 21 April 2007. It was based on KLU’s published tariffs and on an incentive scheme introduced in September 2005. More specifically, Ryanair was obliged to introduce and operate an airline service three times a week on the London Stansted–KLU–London Stansted route, which was to generate at least 8 000 departing passengers for the term of the contract. It was obliged to pay the official KLU airport charges. Owing to the incentive scheme, Ryanair benefited from an incentive of EUR 7.62 per departing passenger on the new scheduled service.

16 On 21 December 2006, DMG and AMS concluded a marketing agreement (‘the 2006 MSA’), which entered into force on 28 February 2007. It was signed by DMG on 28 February 2007. The 2006 MSA was linked to Ryanair’s commitment to operate the route between KLU and London Stansted for the period from 19 December 2006 to 21 April 2007. In particular, under that agreement, AMS was obliged to provide a package of marketing services each year according to the AMS rates in force. Those marketing services included a link from the website www.ryanair.com to a website designated by DMG, content designated by DMG on the Klagenfurt/Carinthia destination page and email offers advertising the region of Klagenfurt/Carinthia sent to subscribers of the website. In accordance with Article 5 of the 2006 MSA, both parties were able to decide on additional marketing services on the basis of a new price agreed between DMG and AMS. The websites designated by DMG could not offer flights, car rental, accommodation or any services that could be offered in the future on the www.ryanair.com website, but they could however present tourist attractions and business opportunities in Klagenfurt and Carinthia.

17 The 2006 ASA and the 2006 MSA (together ‘the 2006 agreements’) were applicable until 21 April 2007. Under a set of agreements concluded on 28 February 2007 (‘the 2007 agreements’), they were extended by a further five years, from 22 April 2007.

B. Administrative procedure

18 On 11 October 2007, following a complaint lodged by a competitor of Ryanair on the European air passenger transport market alleging that Ryanair had been granted unlawful State aid by, inter alia, the province of Carinthia, the city of Klagenfurt, Kärnten Werbung Marketing & Innovationsmanagement GmbH and KLU, via KFBG, the European Commission forwarded the complaint to the Republic of Austria and requested further information.

19 The Commission requested additional information from the Austrian authorities by letters dated 15 November 2010 and 24 March 2011. The Austrian authorities responded by letters dated 28 January and 30 May 2011.

20 On 8 April 2011, the Commission requested additional information from Ryanair. It submitted the information requested by letter dated 4 July 2011. On 15 July 2011, the Commission forwarded Ryanair’s submission to the Austrian authorities, which provided their comments by letter of 20 September 2011.

21 By letter dated 22 February 2012, the Commission informed the Austrian authorities of its decision to open the investigation procedure laid down in Article 108(2) TFEU in respect of the financing of KFBG, the incentive scheme introduced in 2005 and its retroactive application as regards Austrian Airlines, the 2002 and 2006 agreements with Ryanair and the financial contributions to the airlines TUIfly and Air Berlin (‘the opening decision’). In that decision, published in the Official Journal of the European Union on 3 August 2012 (OJ 2012 C 233, p. 28), the Commission asked the interested parties to submit their comments on those measures.

22 The Austrian authorities submitted comments on the opening decision.

23 By letters of 29 May and 20 July 2012, Ryanair’s legal counsel asked, pursuant to Article 41(1) and (2) of the Charter of Fundamental Rights of the European Union (‘the Charter’), that before adopting a final decision the Commission inform it of the facts and considerations upon which it intended to base its decision, grant it access to the file, in particular to the evidence on which it intended to base its decision, and give it the possibility to present its views within a reasonable period of time following the notification of those facts and considerations. By letters of 19 June and 4 October 2012, the Commission rejected those requests.

24 By letter of 24 February 2014, in accordance with the Guidelines on State aid to airports and airlines, published in the Official Journal on 4 April 2014 (OJ 2014 C 99, p. 3) (‘the 2014 Guidelines’), the Commission asked the Austrian authorities and the interested parties to submit their comments on the application of those guidelines to this investigation. The Austrian authorities submitted comments on 20 March 2014.

25 By letter of 28 May 2014, the Commission requested further information from the Republic of Austria regarding a marketing agreement concluded between KLU and Ryanair on 22 January 2002. The Austrian authorities replied to that request on 11 June 2014.

26 On 23 July 2014, the Commission decided to extend the investigation procedure. By the publication of the decision in the Official Journal (OJ 2014 C 348, p. 36), it invited interested parties to submit their comments on the measures at issue. By letters of 20 August and 17 December 2014, the Austrian authorities submitted their observations on the measure which was the subject of the extension decision. On 3 November 2014, Ryanair submitted its own comments in that regard.

27 By letters of 15 December 2014, 13 January, 5 February, 19 March and 25 September 2015, the Commission requested additional information from the Austrian authorities. The Austrian authorities responded by letters of 28 January, 12 February, 31 March, 14 April and 11 November 2015.

C. Contested decision

28 On 11 November 2016, at the end of the formal investigation procedure, the Commission adopted Decision (EU) 2018/628 on State aid SA.24221 (2011/C) (ex 2011/NN) implemented by Austria for the Klagenfurt airport, Ryanair and other airlines using the airport (OJ 2018 L 107, p. 1) (‘the contested decision’).

29 In the contested decision, the Commission provided a detailed description of the measures at issue which consist, on the one hand, in KFBG’s 2005 incentive scheme and the agreements with the airlines Hapag Lloyd Express, TUIfly, Air Berlin and Austrian Airlines and, on the other hand, in the 2002 and 2006 agreements (‘the agreements at issue’) concluded with the applicants.

30 The Commission found that the agreements at issue granted the applicants State aid within the meaning of Article 107(1) TFEU.

31 In that regard, the Commission held that the agreements at issue were imputable to the Republic of Austria.

32 In addition, in order to determine the existence of an advantage, the Commission examined whether a hypothetical market economy operator, motivated by the prospect of profits and operating KLU in the place of KFBG, would have entered into those agreements. In that regard, the Commission considered it appropriate to analyse together, first, the marketing agreements concluded in 2002 along with the 2002 ASA and, second, the 2006 MSA and the 2006 ASA.

33 First of all, with regard to the 2002 agreements, the Commission took the view that account had to be taken solely of the potential positive effect of the marketing services on the number of passengers using the routes covered by those agreements for the term of operation of those routes, excluding other possible advantages deemed too uncertain to be quantified or taken into account. Furthermore, the Commission considered that, for the purposes of applying the market economy operator test, an ex ante analysis of incremental profitability had to be applied, taking into account, specifically, the expected future incremental traffic, incremental revenue and incremental costs, for the entire term of the agreements.

34 Secondly, the Commission conducted an analysis of incremental profitability as regards the 2002 agreements and, at the end of its analysis, it found that the expected discounted result for those agreements was negative and that, therefore, KFBG and DMG had not acted like a market economy operator.

35 Thirdly, the Commission took the view that the 2002 agreements did not meet, for the purposes of Article 107(3)(c) TFEU, the condition that the aid had to be limited in time and involve a route likely to become profitable. After stating that the Republic of Austria had not submitted any information as to how the aid involved in the agreements at issue could influence the development of traffic, it concluded that the 2002 agreements constituted unlawful aid incompatible with the internal market.

36 With regard to the 2006 agreements, the Commission considered, in the first place, that it would take the term of the agreements as a basis when applying the incremental profitability analysis. In the second place, it found that, as the expected discounted result was negative for the 2006 agreements, KFBG and DMG had not acted like a private market economy investor in concluding those agreements. In particular, the Commission took the view that KLU could not have expected to cover the incremental costs brought about by those agreements and that, therefore, an economic advantage had been granted to Ryanair and AMS.

37 In the third place, the Commission observed that the State aid granted to the applicants on the basis of the 2006 agreements constituted start-up aid for the launch of new routes. The Commission also took the view that that aid did not meet the conditions laid down in the Community guidelines on financing of airports and start-up aid to airlines departing from regional airports (OJ 2005 C 312, p. 1), which were, in its view, applicable in the present case, and was therefore incompatible with the internal market.

38 Lastly, the Commission determined the recoverable aid amounts on the basis of the negative part, for each year that the agreements at issue applied, of the projected annual incremental flow at the time the agreements at issue were concluded. It found that the applicants were jointly and severally responsible for repaying all the aid received through the agreements at issue, with an indicative principal amount respectively of EUR 1 827 267 and EUR 141 326.

39 The relevant section of the operative part of the contested decision reads as follows:

‘Article 5

The State aid amounting to EUR 1 827 267 unlawfully put into effect by [the Republic of Austria] in breach of Article 108(3) TFEU, in favour of Ryanair, LV and AMS is incompatible with the internal market.

Article 6

The State aid amounting to EUR 141 326, unlawfully put into effect by [the Republic of Austria] in breach of Article 108(3) TFEU, in favour of Ryanair and AMS is incompatible with the internal market.

…

Article 9

1. [The Republic of Austria] shall recover the aid referred to in Articles 5 to 8 from the beneficiaries.

2. The sums to be recovered shall bear interest from the date on which they were put at the disposal of the beneficiary until their actual recovery.

3. The interest shall be calculated on a compound basis in accordance with Chapter V of Regulation (EC) No 794/2004 as last amended by Commission Regulation (EC) No 271/2008.

4. [The Republic of Austria] shall cancel all outstanding payments of the aid referred to in Articles 1 to 4 with effect from the date of adoption of this decision.

Article 10

1. Recovery of the aid referred to in Articles 5 to 8 shall be immediate and effective.

2. [The Republic of Austria] shall ensure that this decision is implemented within 4 months following the date of notification of this Decision.

Article 11

1. Within 2 months following notification of this Decision, [the Republic of Austria] shall submit the following information to the Commission:

(a) the total amount (principal and recovery interests) to be recovered from the beneficiaries;

(b) a detailed description of the measures already taken and planned to comply with this Decision;

(c) documents demonstrating that the beneficiaries have been ordered to repay the aid.

2. [The Republic of Austria] shall keep the Commission informed of the progress of the national measures taken to implement this Decision until recovery of the aid referred to in Articles 5 to 8 has been completed. It shall immediately submit, on simple request by the Commission, information on the measures already taken and planned to comply with this Decision. It shall also provide detailed information concerning the amounts of aid and recovery interest already recovered from the beneficiaries.’

II. Procedure and forms of order sought

40 By application lodged at the Court Registry on 18 July 2018, the applicants brought the present action.

41 By separate document lodged at the Court Registry on 24 August 2018, the applicants made an application for measures of inquiry, by which they requested that the Commission produce certain documents.

42 The Commission lodged the defence on 15 October 2018.

43 The applicants and the Commission lodged a reply and a rejoinder respectively on 7 January and 25 February 2019.

44 Upon hearing the Judge-Rapporteur, the Court, in the context of the measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, requested the parties to reply to some questions. The parties replied within the prescribed periods.

45 Since a member of the Chamber was prevented from sitting in the present case, the President of the Fifth Chamber designated another Judge to complete the formation of the Court, pursuant to Article 17(2) of the Rules of Procedure.

46 The applicants lodged two documents on 25 September 2020. Those documents were placed on the file, without prejudice to the Court’s decision as to their admissibility. The Commission was given a time limit for submitting its observations on those documents. The applicants were also asked to submit their observations on those of the Commission. The parties complied with those requests within the prescribed periods.

47 The parties presented oral argument and replied to the Court’s oral questions at the hearing on 29 September 2020.

48 The oral part of the procedure was closed on 14 January 2021.

49 The applicants claim that the Court should:

– annul Articles 5 and 6 of the contested decision, and Articles 9, 10 and 11 of that decision in so far as they concern them;

– order the Commission to pay the costs.

50 The Commission contends that the Court should:

– dismiss the action;

– order the applicants to pay the costs.

III. Law

A. Admissibility of additional evidence

51 As is apparent from paragraph 46 above, the applicants submitted additional evidence on 25 September 2020, following the closure of the written part of the procedure. That evidence consists of a table provided by KLU to Ryanair’s economic consultant (‘Annex E.1’) and an unredacted version of a paragraph in the report prepared by Ryanair’s economic consultant dated 3 November 2014 (‘Annex E.2’).

52 At the hearing and, subsequently, by observations lodged on 14 October 2020, the Commission argued that that evidence should be rejected as inadmissible. It claimed that it was late for the purposes of Article 85(3) of the Rules of Procedure and that the applicants had not justified the significant delay in submitting the new evidence.

53 In their observations lodged on 12 November 2020 and at the hearing, the applicants claimed that the additional evidence was admissible. In particular, they stated that Annex E.1 consisted of a table containing estimates of the non-aeronautical revenue per departing passenger for the agreements at issue. They add that the Commission referred to that table in the rejoinder. As regards Annex E.2, included in the report of Ryanair’s economic consultant of 3 November 2014, the applicants state that it had been submitted to the Commission during the formal investigation procedure which led to the adoption of the contested decision.

54 The applicants maintain first of all that the Commission was already in possession of the additional evidence. In particular, they observe that Annex E.1 had been submitted by KLU to the Commission during the administrative procedure which resulted in the contested decision. They add that Annex E.2, included in the study of 3 November 2014 by Ryanair’s economic consultant, had also been submitted to the Commission, in an unredacted version, during the formal investigation procedure. A redacted version of that study was submitted to the Court as an annex to the application.

55 Moreover, as regards Annex E.1, the applicants maintain that they obtained the table concerned from KLU one week before the hearing. They add that it proved impossible to obtain that document at an earlier stage of the proceedings because they were dependent on KLU’s goodwill and cooperation. They refer to the Commission’s refusal to grant them access to the case file and to the asymmetry of information which existed between the applicants, on the one hand, and KLU and the Commission, on the other. In addition, the applicants refer to the request for measures of organisation of procedure which they lodged with the Court in August 2018, in order to have access to the material in the Commission’s file on the reconstruction of incremental costs and revenues, while observing that the rejection of that request became clear to them when a date for the hearing was notified to them on 12 February 2020. The applicants refer, in that regard, to the measures applied by the Austrian authorities from February 2020 restricting freedom of movement on account of the COVID-19 pandemic and the reduction in KLU’s operations in the spring and summer of 2020, which explains to a large extent why obtaining archived documents from the airport was difficult and time-consuming.

56 As regards Annex E.2, the applicants maintain that it was only after obtaining Annex E.1 that it became clear to them that the Commission had significantly overestimated the costs in its profitability analysis of the agreements at issue. They are of the view that they could not therefore have considered, at an earlier stage of the proceedings, that an unredacted version of Annex E.2 could help to illustrate the unlawfulness of the contested decision.

57 It should be noted that under Article 85(3) of the Rules of Procedure, the main parties may, exceptionally, produce or offer further evidence before the oral part of the procedure is closed or before the decision of the General Court to rule without an oral part of the procedure, provided that the delay in the submission of such evidence is justified.

58 In the present case, it must be held that the applicants have not adduced any evidence capable of justifying the late submission, on 25 September 2020, that is four days before the hearing, of the additional evidence at issue.

59 As regards, in particular, Annex E.1, it is clear that neither the request addressed to the Commission during the administrative procedure nor the request for a measure of organisation of procedure submitted to the Court in August 2018 guaranteed the applicants access to the desired information. The applicants do not set out, in that regard, the reasons why they were prevented from taking the necessary steps at the same time with the authorities at KLU in order to gain access to the data in the administrative file relating to the Commission’s reconstruction of the incremental costs and revenue linked to the agreements at issue, which also include Annex E.1.

60 In that regard, the applicants point to the consequences of the COVID-19 epidemic on the proper functioning of KLU and, in particular, the closure of the airport for part of the summer of 2020, the staff’s heavy workload and the conditions of remote working. However, those explanations are vague and unverifiable, to the extent that they are not sufficient in and of themselves to establish a difficulty to obtain information from KLU of such kind that would justify the late submission, a few days before the hearing, of a document, which, as confirmed by the applicants, had been made available to the Commission by the Austrian authorities several years earlier, during the administrative procedure.

61 That is all the more true since, as the applicants submit, they became aware of the existence of Annex E.1 only when the Commission referred to it in the rejoinder. Assuming that the Commission’s reference in the rejoinder to a table on non-aeronautical revenue, submitted by the Austrian authorities to the Commission, may justify the production of Annex E.1 by the applicants, it must be noted that the Commission lodged the rejoinder on 25 February 2019, that is, well before the crisis linked to COVID-19. In that regard, the applicants do not adduce any evidence, for example, from correspondence with the responsible services of KLU, to justify the production of Annex E.1 on 25 September 2020, that is, 18 months after the Commission lodged the rejoinder.

62 In addition, as regards Annex E.2, consisting of an unredacted version of a paragraph relating to the incremental operating costs per departing passenger, included in a study by Ryanair’s economic consultant, it should be noted that that study was completed for the applicants in November 2014 and they have not succeeded in establishing why they were unable to include that document in the application or reply. The applicants’ argument that the production of Annex E.2 was inextricably linked to the production of Annex E.1 cannot be accepted in the present case, since the question of the Commission’s calculation of the incremental operating costs which KLU could have expected had already been raised by the applicants in the application and the reply and the applicants were already in possession of Annex E.2 at that time. The applicants could therefore have included that annex in their pleadings.

63 In those circumstances, it must be held that the applicants have not, for the purposes of Article 85(3) of the Rules of Procedure, justified the late submission of the additional evidence submitted on 25 September 2020. Consequently, that evidence is inadmissible and will not be taken into account by the Court in the examination of the present action.

B. Substance

64 In support of their action, the applicants put forward six pleas in law, alleging, first, infringement of the applicable limitation period and failure to state reasons in that regard; second, infringement of the principle of good administration enshrined in Article 41 of the Charter and of the rights of the defence; third, infringement of Article 107(1) TFEU on the ground that the Commission erroneously imputed the measures at issue to the Republic of Austria; fourth, infringement of Article 107(1) TFEU on the ground that the Commission failed to establish that the condition of selectivity was satisfied; fifth, infringement of Article 107(1) TFEU on the ground that the Commission erroneously concluded that the agreements at issue conferred an advantage on them; and, sixth, as a subsidiary plea, infringement of Articles 107(1) and 108(2) TFEU on the ground that the Commission committed a manifest error in its determination of the quantum of recoverable aid and in the instructions to the Republic of Austria regarding the adjustment of the quantum of recoverable aid.

1. The first plea, alleging infringement of the applicable limitation period and failure to state reasons

65 The applicants claim that Ryanair, in its comments on the Commission’s decision to extend the investigation procedure, argued that the 10-year limitation period provided for in Article 15 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1) and in 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) applied to the 2002 side letter and to the 2002 MSA between DMG and LV. They argue that the limitation period laid down in those provisions began to run on 9 August 2002, when LV was paid the sum of EUR 1 000 000 on the basis of the 2002 side letter. The applicants maintain that between 2002 and 2005, AMS did not receive any sum under the 2002 MSA between DMG and AMS or under any other agreement concerning KLU.

66 The applicants claim that the 10-year period expired on 8 August 2012 at the latest and that the Commission did not take any action during that period capable of interrupting it. They state in that regard that, as confirmed by the Commission in the decision to extend the investigation procedure, at the time of the opening of the investigation procedure laid down in Article 108(2) TFEU, namely on 22 February 2012, the Commission was still unaware of the 2002 MSA between DMG and AMS and the 2002 side letter. The applicants add that the Commission did not ask the Austrian authorities or Ryanair for specific information about those marketing agreements until 2015, that is to say after the date of expiry of the 10-year limitation period.

67 The applicants also argue that the Commission failed to state reasons for its refusal to apply the 10-year limitation period, despite their comments in that regard, lodged in the course of the administrative procedure.

68 The Commission disputes the arguments put forward by the applicants.

69 It should be noted first of all that the applicants argue that the Commission failed to observe the limitation period of 10 years, relying on both Article 17(1) of Regulation 2015/1589 and Article 15 of Regulation No 659/1999. In accordance with settled case-law, the legality of an EU measure falls to be assessed on the basis of the elements of fact and of law existing on the date on which the measure was adopted (see judgment of 10 April 2003, Scott v Commission, T‑366/00, EU:T:2003:113, paragraph 50 and the case-law cited). Accordingly, the question whether the Commission’s powers to recover aid are subject to a limitation period must be assessed on the basis of the procedural rules applicable at the time when the contested decision was adopted. In the present case, the contested decision was adopted on 11 November 2016 and Regulation 2015/1589, Article 35 of which provides that Regulation No 659/1999 has been repealed, entered into force on 13 July 2015. It follows that in the present case the Commission’s power to order recovery of the aid at issue is governed by Article 17 of Regulation 2015/1589, the content of which is, moreover, identical to that of Article 15 of Regulation No 659/1999, and the latter regulation, relied on by the applicants, is not applicable in the present case.

70 In addition, as regards the merits of the present plea, it should be noted that under Article 17(1) of Regulation 2015/1589 the powers of the Commission to recover aid are to be subject to a limitation period of 10 years. Article 17(2) of that regulation provides that the limitation period begins to run on the day on which the unlawful aid is awarded to the beneficiary, either as individual aid or as aid under an aid scheme, and that any action taken by the Commission or by a Member State, acting at the request of the Commission, with regard to the unlawful aid interrupts the limitation period. Furthermore, it is apparent from the case-law that a simple request for information from the Commission, addressed to the authorities of the Member State concerned and concerning the measures at issue, is sufficient to interrupt the limitation period of 10 years (see, to that effect, judgment of 10 April 2003, Département du Loiret v Commission, T‑369/00, EU:T:2003:114, paragraphs 78 to 82).

71 Lastly, Article 17 of Regulation 2015/1589 introduces a single limitation period for recovery of aid which applies in the same way to the Member State concerned, to the beneficiary of the aid and to third parties (see, by analogy, judgment of 10 April 2003, Département du Loiret v Commission, T‑369/00, EU:T:2003:114, paragraph 83). Consequently, the mere fact that an aid beneficiary and a third party are not aware of the existence of the Commission’s requests for information from the authorities of the Member State concerned does not have the effect of depriving them of legal effect vis-à-vis those first parties (see, to that effect, judgment of 10 April 2003, Département du Loiret v Commission, T‑369/00, EU:T:2003:114, paragraph 85).

72 In the present case, it is common ground between the parties that the limitation period of 10 years laid down by Article 17(1) of Regulation 2015/1589 began to run on 9 August 2002, the date when LV received a one-off payment of EUR 1 000 000 from DMG.

73 As regards the question of the interruption of the limitation period, as stated by the Commission in the defence, which is not contested by the applicants, the complaint communicated by the Commission’s letter of 11 October 2007 to the Austrian authorities referred to ‘favourable arrangements provided by [KLU]’ to Ryanair as of 27 June 2002. In addition, in the request for additional information, sent to the Austrian authorities on 15 November 2010, the Commission asked about the cooperation agreement between DMG and Ryanair on which the payments for the marketing services were based and a copy of that agreement was requested, as was information on refunds of airport charges from 2000 onwards. Furthermore, the request for information from the Austrian authorities of 24 March 2011 contained a number of questions about the 2002 agreements, including a request to provide the originals of the agreements with Ryanair, to include the marketing agreement.

74 Lastly, in its request for additional information sent on 8 April 2011 the Commission asked Ryanair to provide information on contracts concluded over the previous 10 years. In particular, it asked Ryanair to provide it with a list of all the contracts which had not been renewed or whose performance had been interrupted during the previous 10 years and to explain the reasons for the interruption and lack of renewal. In its reply to the Commission of 4 July 2011, Ryanair stated that all the contracts with KLU had been renewed or amended following commercial negotiations, with the exception of the 2002 MSA between DMG and LV which had been discontinued before its expiry. It follows from the foregoing that all the requests for information referred to above also covered the 2002 MSA between DMG and AMS and the 2002 side letter.

75 In the light of the case-law cited in paragraph 70 above, the abovementioned information letters constituted actions within the meaning of Article 17(2) of Regulation 2015/1589 capable of interrupting the limitation period of 10 years.

76 In view of the fact that all the requests for information referred to in paragraphs 73 and 74 above were sent by the Commission to the Austrian authorities and Ryanair during the 10-year period commencing on 9 August 2002, the date on which the aid at issue was awarded, within the meaning of Article 17(2) of Regulation 2015/1589, the applicants cannot validly claim that the Commission’s powers were affected by the 10-year limitation period laid down in Article 17(1) of Regulation 2015/1589.

77 Moreover, it should be noted that the Commission found in the contested decision that the marketing agreements concluded in 2002 by DMG and LV and by DMG and AMS were inseparably linked to the 2002 ASA. In order to reach that conclusion, that the 2002 agreements had to be assessed jointly as a single measure, the Commission relied on several factors. It found, inter alia, that LV was a 100% subsidiary of Ryanair, that AMS was also a 100% subsidiary of Ryanair and that DMG was a 100% subsidiary of KFBG. In addition, the Commission stated that the four agreements of 2002 had been concluded at the same time and that the 2002 ASA referred directly to payments for marketing services of a certain amount per year. It also considered that continued implementation of the 2002 MSA between DMG and LV was subject to a minimum level of airport services.

78 It is apparent from the foregoing that the Commission did not merely rely on the fact that the 2002 agreements had been signed on the same day by parties belonging to the same group of companies, but it considered those factors linked to other evidence such as the subject matter and terms and conditions of the 2002 ASA and the 2002 MSA between DMG and LV (see, to that effect, judgment of 13 December 2018, Ryanair and Airport Marketing Services v Commission, T‑111/15, not published, EU:T:2018:954, paragraph 182). In particular, the Commission observed that the 2002 ASA referred directly to the payments for marketing services of a fixed amount per year which DMG was to make to LV in respect of the daily rotation starting on 27 June 2002. For its part, the 2002 MSA between DMG and LV provided that, if the level of airport services was to fall below the stated minimum level in any quarter, DMG was entitled to inform LV in writing of its intention to suspend payment of the amounts.

79 That evidence establishes that the 2002 ASA and the marketing agreements signed in 2002 were inseparably linked and that the Commission was right to examine them as a single transaction. In that context, and contrary to what is claimed by the applicants, the limitation period was indeed interrupted, even if the Commission’s requests for information did not specifically concern the 2002 MSA between DMG and AMS and the 2002 side letter.

80 As for the applicants’ complaint alleging a lack of reasoning in the contested decision in this respect, it should be borne in mind that, according to settled case-law, the statement of reasons required by Article 296 TFEU must be appropriate to the act at issue and must 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 court having jurisdiction to exercise its power of review. 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 it is of direct and individual concern, 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 of 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 (see judgment of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 63 and the case-law cited).

81 Finally, the necessary correlation between the grounds relied on by the complainant and the statement of reasons for the Commission’s decision cannot mean that the Commission is obliged to reject each of the arguments put forward in support of those grounds. It is sufficient if it sets out the facts and the legal considerations of fundamental importance in the context of the decision (judgment of 1 July 2008, Chronopost and La Poste v UFEX and Others, C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraph 96).

82 In the present case, it is apparent from recitals 2 to 4 of the contested decision that the Commission referred to the dates on which it requested additional information from the Austrian authorities and Ryanair on the agreements which were the subject of the complaint of 5 October 2007, on the basis of which a competitor of Ryanair had complained to the Commission that Ryanair had received unlawful State aid in respect of KLU.

83 The Commission therefore set out in a sufficiently clear fashion the dates on which the 10-year period laid down by Article 17(1) of Regulation 2015/1589 had been interrupted. Given that the Austrian authorities and Ryanair were aware, in their capacity as recipients, of the content of the letters requesting additional information which had been sent to them by the Commission, the latter, for the purposes of Article 296 TFEU, was supposed to state only the facts of fundamental importance in the context of the contested decision, namely the dates on which it had carried out the actions capable of interrupting the limitation period.

84 In those circumstances, and contrary to what is claimed by the applicants, the Commission was not required to provide a specific statement of reasons on that point in the contested decision.

85 In the light of the foregoing, the Commission did not err in relation to the application of the limitation period laid down in Article 17(1) of Regulation 2015/1589 and gave sufficient reasons for its decision in that regard.

86 The first plea in law must therefore be dismissed as unfounded.

2. The second plea in law, alleging infringement of the principle of good administration enshrined in Article 41 of the Charter and of the rights of the defence

87 The applicants submit that the Commission infringed the principle of good administration enshrined in Article 41(1) and (2) of the Charter by not giving them access to its administrative file, by not informing them of the facts and considerations on which the Commission intended to base its decision and, thereby, by not giving them the possibility to make known their views effectively. Those procedural irregularities allegedly infringed their rights of the defence and justify the annulment of the contested decision.

88 In particular, the applicants argue that since the entry into force of the FEU Treaty on 1 December 2009, Article 41 of the Charter has constituted primary EU law and overrides any contrary provision of EU secondary law, such as Regulation No 659/1999.

89 In that regard, they claim, in the first place, that they can rely on the right to good administration, provided for in Article 41 of the Charter, since the Commission’s State aid investigation is an ‘affair’ of the applicants for the purposes of Article 41(1) thereof. In particular, the Commission examined the commercial arrangements between the applicants, on the one hand, and KFBG and DMG, on the other. Moreover, if there was a finding of aid, the investigation would have severe financial consequences for the applicants in that those agreements would have to be terminated and the Republic of Austria would be required to recover the amounts concerned. The applicants also claim to have suffered reputational damage owing to the many articles about the contested decision that appeared in the press.

90 In the second place, the applicants argue that Article 41(1) and (2) of the Charter affords them rights that go beyond the rights provided for in Regulation No 659/1999. First, Article 41(2)(b) of the Charter provides a right of access of a private party to ‘his or her’ file, which must be determined by reference to the ‘affair’ for the purposes of Article 41(1) of the Charter, namely the Commission’s investigation into the agreements at issue. Secondly, the right to be heard, laid down in Article 41(2)(a) of the Charter requires that the applicants should be placed in a position to effectively make known their views, which implies access to the Commission’s file and prior communication of the facts and considerations on which the Commission intended to base its final decision.

91 In the third place, the applicants take the view that the right of access to the file and the right to be heard, provided for in Article 41 of the Charter, are not incompatible with Articles 107 and 108 TFEU, since those articles do not preclude the exercise of additional rights where they stem from other provisions of EU law, such as the Charter, which is of equal rank. The Charter would be devoid of any meaning if a right provided for in it could be set aside merely because it was not replicated expressly in a provision of the FEU Treaty.

92 In the fourth place, the applicants submit that respect for the right of access to the file and that of the right to be heard under Article 41 of the Charter contribute to the aim of Article 108(2) TFEU, which consists in gathering the most pertinent and comprehensive information for the Commission. Observance of the procedural rights of private parties is particularly important in State aid proceedings, in which the Member State responsible for the aid and the beneficiary often have conflicting interests.

93 In the fifth place, the applicants argue that the State aid procedure might have led to a different outcome if the Commission had respected their rights under Articles 41(1) and (2) of the Charter, which is sufficient to annul the contested decision.

94 In the sixth place, the applicants observe that, in order to reject their interpretation that Article 41 of the Charter is allegedly inconsistent with Article 108(2) TFEU, the Commission relies on the judgments of the Court of Justice of 29 June 2010, Commission v Technische Glaswerke Ilmenau (C‑139/07 P, EU:C:2010:376); of 25 June 1998, British Airways and Others v Commission (T‑371/94 and T‑394/94, EU:T:1998:140); of 6 July 2017, SNCM v Commission (T‑1/15, not published, EU:T:2017:470); and of 30 April 2014, Tisza Erőmű v Commission (T‑468/08, not published, EU:T:2014:235), which concerned State aid proceedings concluded before the entry into force of the Charter. As for the judgments of the General Court relied on by the Commission concerning State aid proceedings conducted after the entry into force of the Charter, those judgments are not relevant: in one, the applicant was a complainant, not an aid beneficiary (judgment of 9 December 2014, Netherlands Maritime Technology Association v Commission, T‑140/13, not published, EU:T:2014:1029), while the other concerns Article 48(2) of the Charter, which covers people who have been ‘charged’ and not aid beneficiaries (judgment of 26 February 2015, Orange v Commission, T‑385/12, not published, EU:T:2015:117).

95 The Commission disputes the arguments put forward by the applicants.

96 In that regard, in the first place, it should be noted that Article 41 of the Charter provides for the right of good administration. As set out in paragraph 1 of that article, every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions of the Union. In addition, under Article 41(2) of the Charter, that right includes, inter alia, first, the right of every person to be heard, before any individual measure which would affect him or her adversely is taken, and, secondly, the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy.

97 The explanations relating to the Charter, published in the Official Journal of the European Union of 14 December 2007 (OJ 2007 C 303, p. 17), state that Article 41 of the Charter is based on the existence of the Union as subject to the rule of law whose characteristics were developed in the case-law which has enshrined good administration as a general principle of law. Moreover, under Article 52(7) of the Charter, those explanations are to be given due regard by the courts of the Union and of the Member States.

98 In addition, according to the case-law, it is for the competent institution to examine carefully and impartially all the relevant aspects of the individual case (judgment of 21 November 1991, Technische Universität München, C‑269/90, EU:C:1991:438, paragraph 14).

99 Furthermore, according to settled case-law, observance of the rights of the defence is, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of EU law. That principle requires that a person against whom the Commission has initiated administrative proceedings must have been afforded the opportunity during those proceedings to make known its views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim that there has been an infringement of EU law (see judgment of 30 April 2014, Tisza Erőmű v Commission, T‑468/08, not published, EU:T:2014:235, paragraph 204 and the case-law cited).

100 In the second place, it should be recalled that, according to settled case-law, the procedure for reviewing State aid provided for in Article 108 TFEU is a procedure opened only against the Member State responsible for granting the aid. Only the Member State concerned, as the addressee of the future Commission decision, may therefore rely on actual rights of the defence. By contrast, the recipient undertakings of aid and their competitors are considered only to be parties concerned in the procedure for the purpose of Article 108(2) TFEU. No provision reserves any special role to the recipients of aid, among all the parties concerned. They cannot rely on rights as extensive as the rights of the defence as such and cannot seek to engage in an adversarial debate with the Commission (see judgment of 13 December 2018, Ryanair and Airport Marketing Services v Commission, T‑111/15, not published, EU:T:2018:954, paragraph 46 and the case-law cited).

101 Thus, the parties concerned, unlike the Member State responsible for granting the aid, do not have a right under the procedure for reviewing State aid to consult the documents of the Commission’s administrative file (judgment of 29 June 2010, Commission v Technische Glaswerke Ilmenau, C‑139/07 P, EU:C:2010:376, paragraph 58).

102 The parties concerned have essentially the role of information sources for the Commission in the procedure for reviewing State aid. It follows that, far from enjoying the same rights of the defence as those which individuals against whom a procedure has been instituted are recognised as having, parties concerned have only the right to be involved in the procedure to the extent appropriate in the light of the circumstances of the case (judgments of 12 May 2011, Région Nord-Pas-de-Calais and Communauté d’agglomération du Douaisis v Commission, T‑267/08 and T‑279/08, EU:T:2011:209, paragraph 74, and of 13 December 2018, Ryanair and Airport Marketing Services v Commission, T‑111/15, not published, EU:T:2018:954, paragraph 48).

103 The applicants’ second plea in law must be examined in the light of those principles.

104 In that respect, it should be noted that the applicants, as parties concerned within the meaning of Article 108(2) TFEU, have a right to see the Commission’s investigation into the agreements at issue conducted impartially and fairly within the meaning of Article 41(1) of the Charter, especially since classifying those agreements with KFBG and DMG as State aid is liable to result in financial consequences for them in terms of the recovery of the amounts received.

105 However, the reasoning of the applicants cannot be followed where they argue that Article 41(2) of the Charter grants them the right of access to the Commission’s administrative file in State aid matters and the right to be heard on matters on which the Commission intends to base its final decision.

106 While the right to good administration under Article 41(1) of the Charter reflects the obligation to examine carefully and impartially all the elements of the case, Article 41(2) of the Charter lists a set of rights to be observed by the European Union’s administration, including the rights of the defence, which include the right to be heard and the right to have access to the file.

107 However, in the procedure for reviewing State aid, the applicants, as beneficiaries of the aid, cannot rely on actual rights of the defence.

108 It has already been held that the Charter was not intended to alter the nature of the review of State aid established by the FEU Treaty or to confer on third parties a right of scrutiny which Article 108 TFEU did not provide (judgment of 13 December 2018, Ryanair and Airport Marketing Services v Commission, T‑111/15, not published, EU:T:2018:954, paragraph 54; see also, to that effect, judgment of 9 December 2014, Netherlands Maritime Technology Association v Commission, T‑140/13, not published, EU:T:2014:1029, paragraph 60). The applicants’ argument that the Charter would be rendered meaningless if a right which it lays down could be excluded simply because it was not expressly reproduced in a provision of the FEU Treaty must therefore be rejected.

109 In that regard, the Court of Justice has held that if the persons concerned in a procedure for reviewing State aid were able to obtain access to the documents in the Commission’s administrative file, the system for the review of State aid would be called into question. Whatever the legal basis on which it is granted, access to the file enables the parties concerned to obtain all the observations and documents submitted to the Commission and, as the case may be, to adopt a position on those matters in their own observations, which is likely to modify the nature of that procedure (see, to that effect, judgment of 29 June 2010, Commission v Technische Glaswerke Ilmenau, C‑139/07 P, EU:C:2010:376, paragraphs 58 and 59).

110 Similarly, the obligation for the Commission to send the applicants prior notification of the evidence on which it intends to base its final decision would amount to establishing an adversarial debate such as that initiated for the Member State responsible for granting the aid (judgment of 13 December 2018, Ryanair and Airport Marketing Services v Commission, T‑111/15, not published, EU:T:2018:954, paragraph 56; see also, to that effect, judgment of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom, C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraphs 180 and 181).

111 Therefore, the applicants’ argument that the exercise of additional procedural rights allowing them access to the file and the right to be heard, as claimed on the basis of Article 41 of the Charter, is not excluded by Articles 107 and 108 TFEU must be rejected.

112 It follows that, by adopting the contested decision without having granted the applicants access to the file and without having given notice to them beforehand of the facts and considerations on which it intended to base that decision, the Commission did not disregard the principle of good administration in Article 41(1) and (2) of the Charter or the applicants’ rights of the defence, without prejudice, however, to their procedural rights as parties concerned guaranteed by Article 108(2) TFEU.

113 None of the other arguments put forward by the applicants is capable of undermining those conclusions.

114 In the first place, the applicants cannot rely on the judgment of 12 July 1973, Commission v Germany (70/72, EU:C:1973:87, paragraph 19), concerning the aim of the communication required by Article 108(2) TFEU, in order to claim that that provision does not preclude the granting to the parties concerned of rights additional to the right to submit their observations during the administrative procedure. On the contrary, that judgment essentially confers on the parties concerned the role of information sources. Likewise, according to the case-law, the Commission is not obliged, under the system of Articles 107 and 108 TFEU, to involve third parties in the administrative procedure in an extensive manner (judgment of 13 December 2018, Ryanair and Airport Marketing Services v Commission, T‑111/15, not published, EU:T:2018:954, paragraph 60). It cannot be deduced from that case-law, therefore, that the extensive involvement of third parties, as claimed by the applicants, is compatible with the general scheme of the procedure for monitoring State aid established by Article 108 TFEU.

115 In the second place, the applicants submit that observance of the right of access to the file and of the right to be heard, under Article 41 of the Charter, furthers the aim of Article 108(2) TFEU, which is the gathering of the most pertinent and comprehensive information for the Commission. Respect for the procedural rights of private parties is particularly important in State aid proceedings, in which the Member State responsible for the aid and the beneficiary often have conflicting interests.

116 In that regard, it should be borne in mind that, according to the case-law, the parties concerned cannot rely on actual rights of the defence comparable to those of the Member State even if that State, which granted the State aid, and the parties concerned, as the recipients of that aid, may have diverging interests in the context of such a procedure (judgment of 13 December 2018, Ryanair and Airport Marketing Services v Commission, T‑111/15, not published, EU:T:2018:954, paragraph 62).

117 The fact that the Member State concerned does not defend the interests of the recipient of the aid is not capable of altering the role of the recipient during the administrative procedure or the nature of its participation in that procedure, so as to confer on it, in respect of the rights of the defence, guarantees comparable to those of that Member State (judgment of 16 March 2016, Frucona Košice v Commission, T‑103/14, EU:T:2016:152, paragraph 77).

118 In the third place, to the extent that the applicants call into question the validity of Regulation No 659/1999 as being contrary to the Charter, it is necessary, in any event, to reject that argument, since it is also based on the erroneous premiss that the Charter grants to recipients of State aid the right of access to the Commission’s State aid file and the right to be informed in advance of the facts and considerations on which the Commission intends to base its final decision.

119 For the same reasons, and contrary to what is claimed by the applicants, the fact that they could take note only of relevant information contained in the opening decision, as laid down in Article 6 of Regulation No 659/1999, cannot constitute an infringement of their rights.

120 In the fourth place, as regards the applicants’ argument that the judgment of 9 December 2014, Netherlands Maritime Technology Association v Commission (T‑140/13, not published, EU:T:2014:1029), is irrelevant in the present case owing to the fact that the applicant was a complainant in the case giving rise to that judgment, it is sufficient to recall that, according to settled case-law, no special role is reserved to the recipients within the framework of State aid control (see paragraph 100 above). The same finding applies to the judgment of 26 February 2015, Orange v Commission (T‑385/12, not published, EU:T:2015:117), the relevance of which is also disputed by the applicants on the ground that the applicant in that case relied only on Article 48(2) of the Charter and the General Court examined only that provision.

121 Likewise, the applicants’ argument that the judgments of 29 June 2010, Commission v Technische Glaswerke Ilmenau (C‑139/07 P, EU:C:2010:376); of 25 June 1998, British Airways and Others v Commission (T‑371/94 and T‑394/94, EU:T:1998:140); of 6 July 2017, SNCM v Commission (T‑1/15, not published, EU:T:2017:470); and of 30 April 2014, Tisza Erőmű v Commission (T‑468/08, not published, EU:T:2014:235), are also irrelevant in the present case, in as much as those judgments concerned State aid procedures which had been closed before the Charter became part of EU primary law, cannot succeed, given that those judgments highlight the fact that it is not appropriate to extend the procedural rights conferred on the parties concerned in proceedings for the review of State aid.

122 In the fifth place, in so far as it follows from the foregoing that the Commission did not infringe either Article 41 of the Charter or the applicants’ rights of the defence, it is unnecessary to address the argument put forward by the applicants that the outcome of the procedure might have been different if the Commission had granted them access to the file and had informed them of the considerations and evidence on which it intended to base its final decision.

123 It follows that the applicants’ arguments set out in paragraphs 87 to 94 above must be rejected.

124 However, since an infringement of the rights of the defence has been raised in the present plea, it is necessary to examine the right which the parties concerned, within the meaning of Article 108(2) TFEU, have to be involved in the administrative procedure to the extent appropriate in the light of the circumstances of the case (see the case-law cited in paragraph 102 above).

125 In that regard, it must be borne in mind that it is settled case-law that, in the context of an examination under Article 108(2) TFEU, the Commission is obliged to give the parties concerned notice to submit their comments (see judgment of 8 May 2008, Ferriere Nord v Commission, C‑49/05 P, not published, EU:C:2008:259, paragraph 68 and the case-law cited). With regard to that obligation, the Court of Justice has ruled that the publication of a notice in the Official Journal is an appropriate means of informing all the parties concerned that a formal investigation procedure has been initiated (judgment of 14 November 1984, Intermills v Commission, 323/82, EU:C:1984:345, paragraph 17), while also pointing out that the sole aim of this communication is to obtain from persons concerned all information required for the guidance of the Commission with regard to its future action (see judgment of 16 March 2016, Frucona Košice v Commission, T‑103/14, EU:T:2016:152, paragraph 56 and the case-law cited).

126 In addition, according to the case-law, where the Commission decides to initiate the formal investigation procedure, it is permissible for that decision merely to summarise the relevant issues of fact and law, include a preliminary assessment as to the aid character of the State measure in question and set out its doubts as to the measure’s compatibility with the internal market (see, to that effect, judgment of 23 October 2002, Diputación Foral de Guipúzcoa and Others v Commission, T‑269/99, T‑271/99 and T‑272/99, EU:T:2002:258, paragraph 104).

127 Thus, a decision to initiate the formal investigation procedure must give the parties concerned the opportunity effectively to participate in that procedure, during which they will have the opportunity to put forward their arguments. For that purpose, it is sufficient for them to be aware of the reasoning which has led the Commission to conclude provisionally that the measure at issue might constitute new aid incompatible with the internal market (judgment of 30 April 2002, Government of Gibraltar v Commission, T‑195/01 and T‑207/01, EU:T:2002:111, paragraph 138).

128 In the present case, it is common ground that, following publication of the letter informing the Republic of Austria of the opening decision, together with a summary of that decision calling on all the parties concerned to submit their comments, the Commission received comments from the applicants. Ryanair and AMS submitted observations on the opening decision on 31 August 2012. The applicants also lodged a number of additional documents during the formal investigation procedure.

129 In the opening decision, the Commission explained in a sufficiently clear fashion the reasons on which it had based its provisional conclusion that the agreements at issue conferred aid within the meaning of Article 107(1) TFEU on the applicants and that that aid was incompatible with the internal market.

130 After providing general information on KLU, the Commission gave a description of the 2002 ASA, the 2002 MSA between DMG and LV and the 2006 agreements. It assessed those agreements in the light of Article 107 TFEU and concluded provisionally that they involved State aid which could not be regarded as compatible with the internal market.

131 Moreover, it is common ground that, further to the Commission’s letters of 24 February and 13 March 2014 and the publication of the notice of 15 April 2014 in the Official Journal, Ryanair inter alia submitted, by letter of 2 May 2014, comments on the approaches set out in the 2014 Guidelines as an assessment method for the purposes of the application of the test of the private investor in a market economy, namely the comparative analysis and the incremental profitability analysis.

132 In addition, the Commission decided on 23 July 2014 to extend the investigation procedure. That extension decision, together with a summary of the case, was published in the Official Journal and the Commission asked interested parties to submit their comments on the measures at issue. Ryanair submitted its own comments in that regard on 3 November 2014.

133 As regards their sole right to be involved in the administrative procedure in an appropriate manner, the applicants have adduced no evidence to show that they did not have sufficient knowledge of the reasoning provisionally followed and, therefore, were not able properly to submit their observations in that regard.

134 It follows that the Commission did not infringe the applicants’ procedural rights during the formal investigation procedure which resulted in the adoption of the contested decision.

135 In the light of all the foregoing considerations, the second plea in law must be rejected in its entirety.

3. The third plea in law, alleging infringement of Article 107(1) TFEU on the ground that the Commission erroneously imputed the measures at issue to the Republic of Austria

136 The applicants argue that the Commission erroneously concluded that the measures were imputable to the Republic of Austria.

137 They submit that the Commission’s finding that the decisions of KFBG and of DMG are imputable to the State relies on flawed arguments, namely that the province of Carinthia was involved in the conclusion of the marketing agreements concluded between KFBG and DMG, and the airlines using KLU, that it was kept informed of developments regarding all those agreements, and that the government of the province of Carinthia discussed the conclusion of the 2002 agreements.

138 The applicants state in that regard that the Commission should have provided evidence establishing, on the basis of the indicators listed in the judgment of 16 May 2002, France v Commission (C‑482/99, EU:C:2002:294), that the initiative and impulse for the decision to conclude the agreements at issue came from the State. The applicants submit that that was not the case here, since the few elements in the contested decision on which the Commission relies to establish imputation to the State do not establish that the State took the initiative of concluding the agreements under investigation or controlled the actions of KFBG and DMG. In that respect, the applicants add that, in recent Commission decisions on State aid measures, it has taken the view that the combination of general indicators, such as the nomination of board members by the State or the control of 100% of the votes on the board of directors of the body granting the aid, was not a sufficient condition for imputation.

139 The Commission disputes the applicants’ line of argument.

140 It should be noted that, under Article 107(1) TFEU, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods is, in so far as it affects trade between Member States, incompatible with the internal market.

141 In that regard, for advantages to be capable of being categorised as aid within the meaning of Article 107(1) TFEU, they must, first, be granted directly or indirectly through State resources and, second, be imputable to the State (see judgment of 15 July 2004, Pearle and Others, C‑345/02, EU:C:2004:448, paragraph 35 and the case-law cited).

142 Furthermore, intervention by the State or by means of State resources need not necessarily be a measure effected by the central State authority of the State in question. It may equally be effected by an authority below the national level. According to settled case-law, a measure adopted by a regional authority and not the central power is likely to constitute aid if the conditions laid down by Article 107(1) TFEU are satisfied (judgments of 14 October 1987, Germany v Commission, 248/84, EU:C:1987:437, paragraph 17, and of 6 September 2006, Portugal v Commission, C‑88/03, EU:C:2006:511, paragraph 55). In other words, measures adopted by infra-State entities (decentralised, federated, regional or other) of the Member States, whatever their status and description, fall, in the same way as measures taken by the federal or central authority, within the ambit of Article 107(1) TFEU, if the conditions of that provision are satisfied (see judgment of 12 May 2011, Région Nord-Pas-de-Calais and Communauté d’agglomération du Douaisis v Commission, T‑267/08 and T‑279/08, EU:T:2011:209, paragraph 108 and the case-law cited).

143 In the present case, after finding in recitals 313 and 393 of the contested decision, with regard respectively to the 2002 and 2006 agreements, that KFBG and its subsidiary DMG were owned 100% by the State and that they had to be regarded as a public undertaking within the meaning of Article 2(b) of Commission Directive 2006/111/EC of 16 November 2016 on the transparency of financial relations between Member States and public undertakings as well as on financial transparency within certain undertakings (OJ 2006 L 318, p. 17), whose funds are State resources, the Commission came to the conclusion, based on a number of factors, that the agreements at issue were imputable to the State.

144 In particular, it noted that the Republic of Austria had stated that the province of Carinthia was involved in the conclusion of all the marketing agreements between KFBG and DMG, and the airlines and that, in general, it had been kept informed of developments relating to all those agreements through the management and supervisory boards of KFBG and DMG. The Commission also noted that the Republic of Austria had confirmed that the agreements between KFBG and DMG, and Ryanair and its subsidiaries were imputable to the province of Carinthia in terms of the judgment of 16 May 2002, France v Commission (C‑482/99, EU:C:2002:294).

145 It is true that the applicants submit, referring to the judgment of 27 April 2017, Germanwings v Commission (T‑375/15, not published, EU:T:2017:289), that the Member State in question could be under the influence, for example, of the Commission and, consequently, the Commission was obliged to rely on tangible evidence.

146 In that regard, it should be noted that that argument is speculative since it is not apparent from the documents before the Court that the Republic of Austria was ‘under the influence’ of the Commission. In any event, the Commission did not merely state that the involvement of the province of Carinthia was limited to the ‘simple provision of information’, but it also relied on other factors in concluding that the agreements at issue were imputable to the State.

147 More specifically, the Commission observed, first, that the participation and involvement of the authorities in the 2002 agreements were confirmed by the minutes of the meetings of the government of the province of Carinthia in which the conclusion of the air transport services agreements and the marketing agreements was discussed.

148 Second, the Commission also referred to the chain of influence as an additional indicator that the conclusion of the agreements at issue were imputable to the State. After observing, referring to recitals 228 to 232 of the contested decision, that the decisions of KLH and the city of Klagenfurt were imputable to the State, it took note of the commonly accepted fact, namely that both those KFBG shareholders appointed the supervisory board of KFBG and of DMG, which in turn appointed the management, with the result that the supervisory board and the management of KFBG also reflected the proportions of the parties represented in the assembly of the province of Carinthia. On the basis of that finding, in view of the fact that KLH and the city of Klagenfurt were the only shareholders of KFBG and DMG and made up the supervisory boards of those companies, which in turn appointed the management, the Commission was entitled to conclude without any error in its assessment that they exercised a dominant influence over KFBG and DMG and could control their resources.

149 Third, after observing, with reference to Section 7.1 of the contested decision, that the costs of the agreements at issue were borne by the province of Carinthia and the city of Klagenfurt, the Commission correctly found, in recital 316 of the decision, to which recital 394 thereof relating to the 2006 agreements also refers, that that was financing by the State which had been agreed before the conclusion of those agreements with the airline and which required that the province of Carinthia at least implicitly agreed with them. As the Commission has rightly pointed out, a public authority which agrees beforehand to pay part of the costs of agreements which a public undertaking is preparing to conclude must be regarded as having been involved, in one way or another, in the adoption of those measures, in terms of the judgment of 16 May 2002, France v Commission (C‑482/99, EU:C:2002:294, paragraphs 54 and 55).

150 It is necessary to reject the applicants’ argument that the Commission had performed an ex post reasoning by stating in the defence that the province of Carinthia and the city of Klagenfurt had agreed to finance the agreements at issue and that KFBG had represented the interests of the province of Carinthia. In fact, recital 316 of the contested decision expressly states that financing of the agreements at issue by the province of Carinthia and the city of Klagenfurt was an indicator that the measures at issue could be imputed to the State.

151 Consequently, the third plea must be rejected.

4. The fourth plea, alleging infringement of Article 107(1) TFEU on the ground that the Commission failed to establish that the condition of selectivity was satisfied

152 The applicants, relying in particular on the judgment of 9 September 2014, Hansestadt Lübeck v Commission (T‑461/12, EU:T:2014:758), argue that the Commission failed to establish that they had received a selective advantage. They maintain that that judgment also applies to individual agreements. They add that the contested decision is vitiated by the same fault as the decision at issue in the case which gave rise to the judgment of 13 December 2018, Ryanair and Airport Marketing Services v Commission (T‑77/16, not published, EU:T:2018:947).

153 The applicants submit that the Commission addressed the question of selectivity in a cursory manner and that it failed to examine whether other airlines with which KLU had concluded agreements were in a comparable factual and legal situation to Ryanair.

154 The Commission disputes the applicants’ line of argument.

155 It should be observed that Article 107(1) TFEU prohibits State aid ‘favouring certain undertakings or the production of certain goods’, that is to say, selective aid (judgment of 14 January 2015, Eventech, C‑518/13, EU:C:2015:9, paragraph 54).

156 It must also be borne in mind that the requirement as to selectivity under Article 107(1) TFEU must be clearly distinguished from the concomitant detection of an economic advantage in that, where the Commission has identified an advantage, understood in a broad sense, as arising directly or indirectly from a particular measure, it is also required to establish that that advantage specifically benefits one or more undertakings. It falls to the Commission to show, in particular, that the measure at issue creates differences between undertakings which, with regard to the objective of the measure, are in a comparable situation. It is necessary therefore that the advantage be granted selectively and that it be liable to place certain undertakings in a more favourable situation than that of others (judgments of 4 June 2015, Commission v MOL, C‑15/14 P, EU:C:2015:362, paragraph 59, and of 30 June 2016, Belgium v Commission, C‑270/15 P, EU:C:2016:489, paragraph 48).

157 It must, however, be observed that the selectivity requirement differs depending on whether the measure at issue is envisaged as a general scheme of aid or as individual aid. In the latter case, the identification of the economic advantage is, in principle, sufficient to support a presumption of selectivity. By contrast, when examining a general scheme of aid, it is necessary to identify whether the measure at issue, notwithstanding the finding that it confers an advantage of general application, does so to the exclusive benefit of certain undertakings or certain sectors of activity (judgment of 13 December 2018, Ryanair and Airport Marketing Services v Commission, T‑165/15, EU:T:2018:953, paragraph 400).

158 In the present case, it is apparent from the contested decision that the Commission considered that the agreements at issue involved individual aid.

159 In addition, the Commission found in recitals 384 to 386 of the contested decision that, as regards the 2002 agreements, the economic advantage had been granted on a selective basis, since only one airline, namely Ryanair, had benefited from it. The Commission also observed that the various agreements with Ryanair diverged from the schedule of charges and also from agreements with other airlines, and that they therefore contained individually negotiated conditions.

160 Furthermore, as regards the 2006 agreements, the Commission found in recital 419 of the contested decision that the economic advantage had also been granted on a selective basis, since only one airline, namely Ryanair, had benefited from it. As with the 2002 agreements, the Commission stated that the 2006 agreements with Ryanair diverged from both the schedule of charges and from agreements concluded with other airlines.

161 That analysis must be upheld. As is apparent from the agreements on airport services and the corresponding marketing agreements, those agreements included terms which were individually agreed between the parties. They specified, first, the routes to be operated by Ryanair and the airport services which KFBG was required to provide to Ryanair and, second, the marketing services which LV and AMS undertook to provide to KLU. They established in detailed fashion the airport charges and payment for the marketing services. In particular, it is apparent from the contested decision that payment for the marketing services, as negotiated between DMG, LV and AMS, accounted for a sizeable share of the incremental costs and was therefore a substantial factor contributing to the foreseeable negative incremental flow (see recitals 379 and 415 and tables 10 and 11 of the contested decision).

162 In those circumstances, since the agreements at issue contain conditions specifically agreed between KFBG and DMG, and the applicants and result in an advantage for the latter, they therefore have a selective character.

163 Furthermore, contrary to what is alleged by the applicants, it is not necessary to establish whether the agreements at issue provide advantages to the applicants in relation to other operators which are in a comparable factual and legal situation (see, to that effect, judgment of 26 February 2015, Orange v Commission, T‑385/12, not published, EU:T:2015:117, paragraph 52).

164 The test requiring a comparison of the beneficiary with other operators in a comparable factual and legal situation in the light of the aim pursued by the measure in question is based on, and justified by, the assessment of whether measures of potentially general application are selective. That test is therefore irrelevant where, as in the present case, it would amount to assessing the selective nature of an ad hoc measure which concerns just one undertaking and is intended to modify certain competitive constraints which are specific to the undertaking (judgments of 26 October 2016, Orange v Commission, C‑211/15 P, EU:C:2016:798, paragraphs 53 and 54, and of 13 December 2018, Ryanair and Airport Marketing Services v Commission, T‑165/15, EU:T:2018:953, paragraph 406).

165 It must be noted, as regards the judgment of 9 September 2014, Hansestadt Lübeck v Commission (T‑461/12, EU:T:2014:758), that it is not relevant in the present case, given that it concerned a measure applying to a set of economic operators the selectivity of which had to be examined within the context of the specific legal regime in order to assess whether, in such a context, that measure constituted an advantage for certain undertakings over others which are, in the light of the objective pursued by that regime, in a comparable factual and legal situation (see, to that effect, judgment of 21 December 2016, Commission v Hansestadt Lübeck, C‑524/14 P, EU:C:2016:971, paragraphs 53 and 54), which is not so in the present case, particularly in the light of the payment for the marketing agreements specifically agreed upon between KLU and the applicants.

166 In addition, taking account of the consideration set out in paragraph 165 above, there is no need to examine the applicants’ arguments relating to the lack of relevance of the case-law cited by the Commission, by which it seeks to limit the scope of the finding of the judgment of 21 December 2016, Commission v Hansestadt Lübeck (C‑524/14 P, EU:C:2016:971), to general measures.

167 Lastly, it is also necessary to reject the applicants’ argument that the contested decision is vitiated by the same flaw as that identified by the Court in the judgment of 13 December 2018, Ryanair and Airport Marketing Services v Commission (T‑77/16, not published, EU:T:2018:947). In the case which gave rise to the judgment cited by the applicants, the Court held that the advantage identified by the Commission in the contested decision was the loss that the airport would have recorded under its agreements with Ryanair, which was different from the advantage which was considered in that decision to be selective, namely the granting of discounts on airport charges to Ryanair. In other words, and in contrast to the present case, the Court was called upon in the above case to examine whether the advantage identified by the Commission differed from the advantage for which it had examined selectivity.

168 Consequently, the fourth plea must be rejected.

5. The fifth plea in law, alleging infringement of Article 107(1) TFEU on the ground that the Commission erroneously concluded that the agreements at issue conferred an advantage on the applicants

169 This plea in law is divided into three parts. In the first place, the applicants claim that the Commission erroneously, and without providing a sufficient statement of reasons, dismissed the possibility that part of the marketing services may have been purchased for general interest purposes. In the second place, the applicants allege that the Commission wrongly refused to conduct a comparative analysis even though performing such an analysis would have led it to conclude that there was no aid. In addition, the contested decision is vitiated by failures to state reasons on that point. In the third place, and in the alternative, the applicants argue that the Commission committed manifest errors of assessment in its analysis of incremental profitability and that it failed to provide a sufficient statement of reasons.

170 The Commission rejects those arguments.

171 Before examining the three parts of this plea, it should be borne in mind as a preliminary point that, according to settled case-law, State aid, as defined in the FEU Treaty, is a legal concept which must be interpreted on the basis of objective factors. For that reason, the EU Courts must in principle, having regard both to the specific features of the case before them and to the technical or complex nature of the Commission’s assessments, carry out a comprehensive review as to whether a measure falls within the scope of Article 107(1) TFEU (see judgment of 30 November 2016, Commission v France and Orange, C‑486/15 P, EU:C:2016:912, paragraph 87 and the case-law cited).

172 The Court of Justice has nevertheless held that judicial review was limited with regard to whether a measure came within the scope of Article 107(1) TFEU, in a case where the appraisals by the Commission were technical or complex in nature (judgment of 30 November 2016, Commission v France and Orange, C‑486/15 P, EU:C:2016:912, paragraph 88).

173 In that regard, where, in order to determine whether a measure comes within the scope of Article 107(1) TFEU, the Commission must apply the criterion of the prudent private investor in a market economy, as a rule, the application of that test requires the Commission to make a complex economic assessment (judgment of 30 November 2016, Commission v France and Orange, C‑486/15 P, EU:C:2016:912, paragraph 89).

174 However, although the General Court must not substitute its own economic assessment for that of the Commission, it is apparent from now well-settled case-law from the Court of Justice that not only must the EU judicature establish, among other things, whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the relevant information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it (see, to that effect, judgment of 30 November 2016, Commission v France and Orange, C‑486/15 P, EU:C:2016:912, paragraph 91 and the case-law cited).

(a) First part

175 The applicants observe that, as is apparent from the preamble to the 2006 MSA, DMG was pursuing general interest objectives when it purchased marketing services. They submit that in that case the test of the private investor in a market economy did not apply and that the Commission was required to examine whether the price paid was the market price, which it did not do. The Commission did not address the notion that some of the marketing services might have been purchased by DMG for general interest purposes and, for that reason, the contested decision lacks sufficient reasoning. In particular, the applicants argue that the Commission should have applied the private investor in a market economy test to the part of the services purchased in order to pursue the airport’s economic activity and verified the market price for the part of services purchased for general interest purposes. In the applicants’ view, the fact that the acquisition of marketing services was linked to Ryanair’s undertaking to operate air services does not necessarily preclude the pursuit of a general interest objective.

176 The Commission argues that in the application the applicants alleged only that the contested decision failed to state reasons and that therefore they cannot raise an error of assessment for the first time in the reply as regards the Commission taking into account general interest objectives when purchasing the marketing services. As to the substance, the Commission disputes the arguments put forward by the applicants.

177 In that regard, it should be noted at the outset that, in the application, the applicants state in the heading of the first part of the fifth plea that the Commission ‘erroneously dismissed the possibility that part of the marketing services were purchased for general interest purposes’. The applicants thus allege an error of assessment on the part of the Commission and it cannot claim that they have merely alleged that the contested decision failed to state reasons in that regard.

178 As to the substance, it should be borne in mind that the applicability of the private investor in a market economy test ultimately depends on the Member State concerned having conferred, in its capacity as an economic operator, and not in its capacity as public authority, an economic advantage on an undertaking (see, to that effect, judgments of 5 June 2012, Commission v EDF, C‑124/10 P, EU:C:2012:318, paragraph 81, and of 16 March 2016, Frucona Košice v Commission, T‑103/14, EU:T:2016:152, paragraph 95).

179 In the present case, the Commission concluded, in recitals 383 and 417 of the contested decision, that KFBG and DMG were not acting as a private investor in a market economy when the agreements at issue were signed since the expected discounted result, taking account of those agreements, was negative. It must also be stated that it did not envisage the possibility that the purchase of the marketing services, at least in part, could have corresponded to general interest purposes pursued by the regional and local authorities.

180 However, it must be borne in mind that the Commission was entitled to assume, without committing a manifest error of assessment, that the 2002 ASA was linked to the 2002 MSA since there was, in particular, a clear link between the payments in respect of the marketing services and the daily flights by Ryanair (see paragraphs 77 to 79 above).

181 As regards the 2006 agreements, the Commission relied on a number of factors in order to conclude that they had to be regarded as a single measure. Apart from the fact that those agreements had essentially been concluded by the same contracting parties and that the two agreements expired on the same date, namely 21 April 2007, the Commission noted that the 2006 MSA was based on Ryanair’s obligation to operate a route between London Stansted and KLU. The Commission was therefore entitled to conclude, without making a manifest error of assessment, that the reference in the 2006 MSA to the 2006 ASA again showed that the two were indivisible.

182 In that regard, the evidence of the application of a market price in the marketing agreements produced by the applicants during the administrative procedure does not call into question the link between the marketing services and the operation of Ryanair’s routes.

183 Consequently, since the payment for marketing services under the 2002 and 2006 marketing agreements did not constitute compensation for the provision of services to local or regional authorities, but was closely linked to the operation of Ryanair’s air services at KLU, it was attributable to KFBG and DMG in their capacity as an economic operator running an airport. As the Commission rightly points out, the fact that the 2002 and 2006 MSAs may have given rise to advantages for actors other than KLU airport itself, such as the tourism industry in the province of Carinthia, does not mean that such advantages could be taken into account for the purposes of applying the test of the private investor in a market economy. Accordingly, the applicants’ argument concerning the acquisition of marketing services for general interest purposes must be rejected.

184 Lastly, it follows from the foregoing that the contested decision discloses in a sufficiently clear fashion the reasons why the Commission applied the test of the private investor in a market economy to the measures at issue.

185 Consequently, the applicants’ complaint founded on the refusal to take into consideration the possibility that part of the marketing services might have been purchased for general interest purposes and a failure to state reasons in that regard must be rejected.

(b) Second part

186 The applicants argue, in essence, that the Commission was wrong to rely on a comparative analysis and that the performance of such an analysis would have led it to conclude that there was no aid, both in relation to the airport services agreements and the marketing agreements.

187 The Commission disputes the arguments put forward by the applicants.

(1) Rejection of the comparative analysis as a method of applying the test of the private investor in a market economy

188 The applicants claim that the Commission failed to have regard to the fact that the comparative analysis was the main method of applying the test of the private investor in a market economy and was consistent with the principle of legal certainty. The Commission may therefore rely on an ex ante profitability analysis only in cases where comparison with a private investor is not possible.

189 In the applicants’ view, the conclusion of an agreement which is not profitable for the public airport because of its own inefficiency does not grant an advantage to the airline which it would not have obtained under normal market conditions. Furthermore, the applicants claim that the comparative analysis enhances legal certainty because it relies on real market prices.

190 It is apparent from settled case-law that the conditions which a measure must meet in order to be treated as ‘aid’ for the purposes of Article 107 TFEU are not met if the recipient undertaking could, in circumstances which correspond to normal market conditions, obtain the same advantage as that which has been made available to it through State resources (judgments of 5 June 2012, Commission v EDF, C‑124/10 P, EU:C:2012:318, paragraph 78, and of 24 January 2013, Frucona Košice v Commission, C‑73/11 P, EU:C:2013:32, paragraph 70). That assessment is made by applying, in principle, the private investor in a market economy test (judgment of 5 June 2012, Commission v EDF, C‑124/10 P, EU:C:2012:318, paragraph 78).

191 In order to ascertain whether a State measure constitutes aid, it is necessary to determine whether, in similar circumstances, a market economy operator of a size comparable to that of the bodies managing the public sector might have been prompted to conclude the agreements concerned (judgment of 13 December 2018, Ryanair and Airport Marketing Services v Commission, T‑111/15, not published, EU:T:2018:954, paragraph 154; see also, to that effect, judgment of 21 March 1990, Belgium v Commission, C‑142/87, EU:C:1990:125, paragraph 29).

192 However, determining whether a market economy operator would have made an arrangement such as that in question cannot necessarily imply for the Commission the obligation to use the comparative analysis. That method is merely one analytical tool amongst others to determine if the recipient undertaking has received an economic advantage which it would not have obtained in normal market conditions (see judgment of 13 December 2018, Ryanair and Airport Marketing Services v Commission, T‑111/15, not published, EU:T:2018:954, paragraph 155 and the case-law cited).

193 The selection of the appropriate tool is a matter for the Commission within the framework of its obligation to conduct a complete analysis of all factors that are relevant to the transaction at issue and its context, including the situation of the recipient undertaking and of the relevant market, to determine whether the recipient undertaking has received an economic advantage which it would not have obtained under normal market conditions (see judgment of 13 December 2018, Ryanair and Airport Marketing Services v Commission, T‑111/15, not published, EU:T:2018:954, paragraph 156 and the case-law cited).

194 In the present case, without there being any need to assess at this stage the merits of the specific grounds relied on by the Commission to depart from the comparative analysis, it must be held that it could therefore, without committing any error, examine, in recitals 261 to 278 of the contested decision, to which recitals 321 and 397 of that decision refer, relating respectively to the 2002 and 2006 agreements, what was the most appropriate method of assessment in the present case for the purposes of applying the test of a private investor in a market economy. Accordingly, questioning whether it is currently possible to define an appropriate benchmark to establish a true market price for airport services and taking into account considerations relating to the divergence of costs and revenues between airports, the low level of comparability of transactions between airports and airlines and the inadequacy of the July 2011 study prepared by Ryanair’s economic consultant, the Commission opted for the incremental profitability analysis and departed from the comparative analysis.

195 The Commission’s approach in that regard is not invalidated by the case-law relied on by the applicants, namely the judgments of 3 July 2003, Chronopost and Others v Ufex and Others (C‑83/01 P, C‑93/01 P and C‑94/01 P, EU:C:2003:388, paragraphs 38 and 39), and of 4 September 2014, SNCM and France v Corsica Ferries France (C‑533/12 P and C‑536/12 P, EU:C:2014:2142, paragraph 34), according to which, in the absence of any possibility of comparing the situation of a public undertaking with that of a private undertaking not operating in a reserved sector, normal market conditions, which are necessarily hypothetical, must be assessed by reference to the objective and verifiable elements which are available, such as the costs incurred by the public undertaking.

196 That case-law must be read in the context of the circumstances of the cases which gave rise to the judgments of 3 July 2003, Chronopost and Others v Ufex and Others (C‑83/01 P, C‑93/01 P and C‑94/01 P, EU:C:2003:388), and of 4 September 2014, SNCM and France v Corsica Ferries France (C‑533/12 P and C‑536/12 P, EU:C:2014:2142), that is to say it is impossible to apply a comparative analysis and therefore there is no choice between such an analysis and other methods. Consequently, in those judgments, contrary to what the applicants essentially argue, the Court of Justice did not rule on the existence of a hierarchy between the comparative analysis and other methods, but merely stated that it was not possible to have recourse to a comparative analysis in those cases.

197 It follows that the applicants’ argument concerning the existence of a general principle of EU law allegedly referred to in the judgment of 3 July 2003, Chronopost and Others v Ufex and Others (C‑83/01 P, C‑93/01 P and C‑94/01 P, EU:C:2003:388), and confirmed in the judgment of 4 September 2014, SNCM and France v Corsica Ferries France (C‑533/12 P and C‑536/12 P, EU:C:2014:2142), which is said to establish a hierarchy between the comparative analysis and other methods, cannot succeed.

198 Similarly, the applicants cannot properly rely on the fact that the judgments of 6 March 2003, Westdeutsche Landesbank Girozentrale and Land Nordrhein-Westfalen v Commission (T‑228/99 and T‑233/99, EU:T:2003:57), and of 3 July 2014, Spain and Others v Commission (T‑319/12 and T‑321/12, not published, EU:T:2014:604), concerned the analytical tool of an average return in the sector, given that, in those judgments, the General Court held that the use of an average return in the sector is only one analytical tool amongst others in the context of the application of Article 107(2) TFEU.

199 Moreover, contrary to what was claimed by the applicants in the application and reiterated at the hearing, the principle of legal certainty was not infringed in the present case by reason of the application of the ex ante profitability method instead of the comparative method. As observed by the Commission at the hearing, without being contradicted by the applicants, the ex ante profitability method is a well-established and recognised approach for applying the test of the private investor in a market economy. The applicants could therefore, if necessary with the help of an economic consultant and on the basis of the Commission’s findings in the contested decision, the agreements at issue and the data they obtained from KLU, assess whether a private investor in a market economy would have made an arrangement such as that at issue in order to ascertain whether the undertakings in receipt of the aid had received an economic advantage which they would not have obtained under normal market conditions.

200 The applicants’ argument that the fact that the conclusion of agreements with an airline is reasonable for the public authority does not exempt the Commission from ascertaining whether the measure at issue conferred an economic advantage on the recipient undertaking which it would not have obtained under normal market conditions, must be rejected. The incremental profitability analysis aims precisely at establishing whether, by the conclusion of such an agreement, the public authority acting as a market economy operator finding itself, to the extent possible, in the same situation, conferred an economic advantage on the other party to the agreement which the latter could not have obtained under normal market conditions (judgment of 13 December 2018, Ryanair and Airport Marketing Services v Commission, T‑111/15, not published, EU:T:2018:954, paragraph 161).

201 Lastly, the applicants’ argument that there is a contradiction between the fact that the Commission, in its profitability assessment, applied a discount rate of 8% used by Vienna airport (Austria) and its general finding that the structure of costs and revenues differs greatly between airports cannot succeed. The fact that the Commission did not opt in the present case for the comparative analysis does not in itself mean that it could not take into account, on an ad hoc basis, the cost of capital of an airport regarded as similar in that regard to KLU when applying the profitability assessment.

202 That is all the more true given that, as the Commission observes, point 2(19) of the 2014 Guidelines defines the concept of ‘net present value’ as follows:

‘… the difference between the positive and negative cash flows over the lifetime of the investment, discounted to their current value using the cost of capital, that is to say, the normal required rate of return applied by the company in other investment projects of a similar kind or, where not available, the cost of capital of the company as a whole, or expected returns commonly observed in the airport sector’.

203 Consequently, and since, according to the 2014 Guidelines, the cost of capital may be understood as ‘expected returns commonly observed in the airport sector’, it cannot be considered to be contrary to market practice to apply, in the context of the profitability assessment, the estimated discount rate at sectoral level using data available on the cost of capital of another airport.

204 It follows that the applicants’ argument that the Commission was required to carry out a comparative analysis in the case of the airport or marketing services must be rejected.

(2) The complaints concerning the grounds relied on in the contested decision to depart from the comparative analysis in the present case

205 The applicants dispute the specific reasons on which the Commission relied in recitals 262 to 278, 363 to 367 and 397 of the contested decision to depart in the present case from the comparative analysis as an assessment method for the purposes of applying the test of the private investor in a market economy.

206 In particular, they in essence put forward six complaints that the grounds in question contain errors of assessment and failures to state reasons.

(i) The complaint alleging that the Commission erred in finding that diversity among airports justified its departing, in the present case, from the comparative analysis

207 The applicants submit that the Commission erred in considering that the varied situations of European airports invalidated the studies of 4 July 2011 and 31 August 2012 submitted by Ryanair’s economic advisor.

208 In the first place, as regards the ground relating to the difference in costs, revenue and other conditions between airports (recital 264 of the contested decision), the applicants argue that the Commission has not provided any data or examples to explain the degree and importance of those differences.

209 In that regard, it is sufficient to note that the Commission found, in recital 264 of the contested decision, that the cost and revenue structure tended to differ significantly from one airport to another and, in support of that finding, it listed a series of indicators of the variation in costs and revenue. Furthermore, the applicants have not put forward any specific argument permitting the inference that the presentation of those indicators is vitiated by a manifest error of assessment.

210 In the second place, as regards the ground relating to the low level of comparability of transactions between airports and airlines (recital 265 of the contested decision), the applicants argue that the Commission incorrectly asserted that airport charges were generally not comparable between airports.

211 In that regard, it should be noted that the applicants have misread the contested decision when they assert that the Commission considered that airport charges between airports were not comparable. In recital 265 of that decision, the Commission explained that, as shown in the present case, commercial relationships between airports and airlines were not always based on a published scheduled of charges, but varied widely and were therefore difficult to compare on the basis of a price per rotation or per passenger.

212 In addition, the file shows that the agreements at issue went well beyond a mere application of the general schedule of charges in force at KLU in terms of airport charges and included the conclusion of agreements on airport services and marketing.

213 In the third place, the applicants claim that it is not ‘credible’ for the Commission to maintain that the comparative analysis ‘has no role to play’ in the case of airport services, even though it has collected data relating to the comparison of airports in investigations it has carried out in many cases involving alleged State aid in favour of Ryanair.

214 In that regard, suffice to note that the Commission ultimately considered that that data was not relevant for the purposes of applying the test of the private investor in a market economy. That finding by the Commission was based on a number of factors. Accordingly, after stating in recital 269 of the contested decision that during the administrative procedure neither the Republic of Austria nor any interested third party had suggested to the Commission a sample of comparison airports that were sufficiently comparable to KLU, according to a number of parameters, the Commission found that the study of 4 July 2011 submitted by Ryanair had not taken into account all the relevant criteria, according to the 2014 Guidelines, in order to establish that the comparison airports which it suggested were sufficiently comparable to KLU.

215 Moreover, the Commission explained properly why, even if a sample of airports had been available, the comparative method would not have been applied in the present case. In particular, it noted that the marketing agreements between the airport operator and the airline and its subsidiaries included transactions in airport services and marketing services, leading to a complex set of financial flows. The Commission concluded that it would be impossible to find a sample of comparable transactions because of the complexity and specific nature of the transactions which are the subject of the procedure at issue. That finding is not vitiated by a manifest error of assessment. As is apparent from the file, the various agreements of 2002 and 2006 on airport services and marketing services were complex sets of agreements including multiple sets of data specific to KLU’s structure and method of operation and relating to the various airport charges, to revenue linked to ground handling services and to revenue connected with marketing services.

216 In the fourth place, as regards the applicants’ argument that the fact that the Commission departed in the present case from the comparative analysis in order to determine whether a private investor in a market economy would have made a particular arrangement in the air transport sector in Europe is contrary to the approach previously taken by that institution in respect of other sectors, it must be noted that the concept of State aid is a legal concept and must be interpreted solely on the basis of Article 107(1) TFEU, and not on the basis of any previous administrative practice of the Commission, assuming that it is established (see, to that effect, judgments of 30 September 2003, Freistaat Sachsen and Others v Commission, C‑57/00 P and C‑61/00 P, EU:C:2003:510, paragraphs 52 and 53, and of 3 July 2014, Spain and Others v Commission, T‑319/12 and T‑321/12, not published, EU:T:2014:604, paragraph 46).

217 Accordingly, taking account of all of the foregoing, it must be held that the complaint alleging that the Commission was wrong to find that diversity among airports justified its departure in the present case from the comparative analysis must be rejected.

(ii) The complaint concerning the liberalisation of the air transport market

218 The applicants argue that the Commission could not rely on the liberalisation of the air transport sector in Europe to justify departing from the comparative analysis in the present case. They add that the Commission has adduced no evidence to substantiate that argument.

219 It should be noted that the Commission referred in recital 265 of the contested decision to liberalisation to explain the variation of commercial practices among airports, making any purely comparative analysis more complicated. Contrary to what is claimed by the applicants, that decision does not thereby aim to exclude the comparative analysis in order to determine whether a private investor in a market economy would have made a particular arrangement in liberalised sectors, or even in all sectors.

220 As for the applicants’ argument that the Commission erred in considering that the published schedule of charges was not representative of commercial agreements made between airports and airlines, this must be rejected since it is based on an incorrect premiss. In particular, the applicants argue that since charges negotiated individually between airports and airlines will be lower, comparing them with published charges will constitute a conservative and relevant approach. Even if that claim were correct, the Commission did not consider that the published schedule of charges was not relevant in itself when applying the test of a private investor in a market economy, but it noted the complexity and variations in commercial relations in reducing the comparison of transactions to the price per rotation or the price per passenger.

221 Consequently, it has to be held that this complaint must to be rejected.

(iii) The complaint concerning the influence of prices charged by publicly subsidised airports on prices charged by comparator airports

222 The applicants submit that, in order to justify departing from the comparative analysis, the Commission wrongly accepts, in recital 266 of the contested decision and by referring to points 57 to 59 of the 2014 Guidelines, that prices charged by publicly subsidised airports influence those charged by comparator airports. According to the applicants, private airports are not prepared to enter into perpetually loss-making agreements in order to compete with subsidised public airports. In addition, airports experience only limited competitive tension with one another to secure a contract with Ryanair, given that there are a substantial number of airports that Ryanair does not serve for operational reasons.

223 In that regard, it should be noted that, as the Commission rightly states, it did not state in the 2014 Guidelines that private airports were prepared to enter into perpetually loss-making agreements in order to compete with subsidised public airports.

224 Furthermore, the Commission did indeed state in point 58 of the 2014 Guidelines that the prices charged by airports which are privately owned or managed could be strongly influenced by the prices charged by the majority of publicly subsidised airports, since the latter prices are taken into account by airlines during their negotiations with the privately owned or managed airports. It identified that risk as one of the reasons why it had strong doubts whether it was currently possible to identify an appropriate benchmark to establish a true market price for services provided by airports.

225 The existence of limited competition between airports to secure a contract with Ryanair, even if established, is insufficient to call into question the Commission’s conclusions, in points 56 to 59 of the 2014 Guidelines, concerning the EU airport industry.

226 Consequently, it must be held that this complaint has to be rejected.

(iv) The complaint alleging that the Commission erred in rejecting the application of the comparative analysis by referring to the airport services agreements together with the marketing agreements

227 The applicants argue that the Commission erred in rejecting the comparative analysis because it lacks a joint comparison of the payments made by Ryanair under the airport services agreements, disregarding the payments made to the applicants under the marketing agreements. They observe that the prices foreseen in the marketing agreements reflect the independent market value of the services provided under those agreements. The fact that the airport services agreements and the marketing agreements were signed by the applicants belonging to the same group does not entitle the Commission to treat the payments under the marketing agreements as a rebate on the airport charges envisaged in the airport services agreements. The applicants also submit that the report of their economic consultant of 10 April 2015 showed that the charges paid by Ryanair at KLU, net of the payments to AMS and LV for marketing services, were higher than the average net charges paid at the comparator airports on both a per-passenger and per-rotation basis.

228 It must be borne in mind that, when the Commission reviews whether a specific transaction contains State aid elements, it is required to take into account the context in which that transaction takes place (judgment of 13 December 2018, Ryanair and Airport Marketing Services v Commission, T‑111/15, not published, EU:T:2018:954, paragraph 179). The examination of a transaction outside its context could lead to purely formal results which do not correspond to economic reality (judgment of 8 January 2015, Club Hotel Loutraki and Others v Commission, T‑58/13, not published, EU:T:2015:1, paragraph 91).

229 When applying the private investor test, it is necessary to envisage the commercial transaction as a whole in order to determine whether the public entity has acted as a rational investor in a market economy. When assessing the measures at issue, the Commission must examine all the relevant features of the measures and their context (judgments of 17 December 2008, Ryanair v Commission, T‑196/04, EU:T:2008:585, paragraph 59, and of 13 December 2018, Ryanair and Airport Marketing Services v Commission, T‑111/15, not published, EU:T:2018:954, paragraph 180).

230 In the present case, taking account of the considerations set out in paragraphs 77 to 79 and 180 to 181 above, it must be observed that, contrary to what is claimed by the applicants, the Commission did not rely solely on the fact that the agreements at issue had essentially been concluded by the same contracting parties in order to reach the conclusion that the agreements on airport services were indissociable from the marketing agreements. As regards the 2002 agreements, the Commission found, without being contradicted by the applicants, that the 2002 ASA referred directly to the payments for marketing services of a fixed amount per year which DMG was to make to LV for the daily rotation starting on 27 June 2002. Furthermore, the 2002 MSA between DMG and LV provided that, if the level of airport services was to fall below the stated minimum level in any quarter, DMG was entitled to inform LV in writing of its intention to suspend payment of the amounts.

231 As regards the 2006 agreements, apart from the fact that the ASA and the MSA expired on the same date, namely 21 April 2007, the Commission stated, without being contradicted by the applicants in that regard, that the 2006 MSA was based on Ryanair’s obligation to operate a route between London Stansted and KLU.

232 The applicants have not adduced evidence that invalidates the Commission’s analysis that the 2002 and 2006 marketing agreements were indissociable respectively from the 2002 and 2006 airport services agreements and the air transport services covered by them.

233 It follows that the Commission was entitled to consider, without committing any error, that both the 2002 and 2006 agreements should be analysed together, as single transactions.

234 The applicants’ argument that the price paid under the marketing agreements corresponded to the actual value of the services to be performed under those agreements must be rejected. That argument is based on the unsubstantiated assumption that the marketing services and airport services are distinct and independent and that, therefore, the price to be paid for the marketing services cannot be considered to be a cost attributable to the opening of the route between KLU and London Stansted, which ought to be deducted from the additional revenue, including airport charges, linked to the passenger traffic on that route.

235 In addition, it is also necessary to reject the applicants’ argument that the Commission should have taken into account the report by Ryanair’s economic consultant showing that the charges paid by Ryanair to KLU, net of the payments to AMS and LV for marketing services, were higher than the average net charges paid at the comparator airports. As has already been pointed out (paragraphs 194 to 204 above), the Commission, without committing a manifest error of assessment, applied the ex ante incremental profitability analysis in the present case and not the comparative analysis. As the Commission rightly stated in recital 276 of the contested decision, it was necessary to examine whether an airport operator might have an objective interest in concluding a transaction with an airline, where it may reasonably expect that transaction to improve its profits (or reduce its losses) compared to a counterfactual situation in which that transaction is not concluded. Consequently, a comparison of the conditions offered by other airport operators to airlines, even after deducting the payments made in respect of marketing services from the air transport charges paid, would not be relevant in applying the test of the private investor in a market economy.

236 The applicants’ argument, raised at the hearing, that the Commission should have taken into account a letter from DMG’s tax consultant, mentioned in recital 337 of the contested decision, which stated that, after an extensive examination of the accounts for the years 2002 to 2005, no trace had been found of an annual payment on the basis of the 2002 MSA between DMG and AMS, must be rejected. Since the 2002 side letter did not mention the fact that it would replace the 2002 MSA between DMG and AMS, a private investor in a market economy would not reasonably have assumed, at the time the marketing agreements were signed, that one of them would not be applied subsequently.

237 Consequently, the Commission did not commit a manifest error of assessment when it rejected the application of the comparative analysis by referring to the airport services agreements taken together with the marketing agreements.

(v) The complaint alleging that the comparative analysis was rejected on the ground that the agreements under investigation would generate higher incremental costs than incremental revenue

238 The applicants complain that the Commission erred in rejecting the comparative analysis on the ground that the agreements under investigation were expected to generate higher incremental costs than incremental revenue. According to the applicants, the approach followed by the Commission wrongly incorporated a profitability analysis into the comparative analysis, thus entailing a cumulative application of those two analyses, which is contrary to the case-law.

239 In addition, the applicants claim that the Commission’s approach does not take into account the fact that the incremental loss that an operator may suffer does not constitute an advantage conferred on those who purchase the goods or services concerned.

240 In addition, the applicants complain that the Commission failed to take into account the fact that the market price in a comparative analysis is established by reference to the prices charged by private investors in a market economy, which charge prices that are higher than their incremental costs. If a public operator cannot be profitable charging such prices, it means that its costs are higher than those of a private investor in a market economy.

241 In that regard, indeed, the Commission held in the contested decision that, assuming that it could be established on the basis of a valid comparative analysis that the prices at issue in the various transactions which are the subject of the present assessment were equivalent to or higher than the market prices established by means of a sample of comparison transactions, it could not, however, conclude that those transactions corresponded to the market price if it proved that, on their conclusion, the airport operator may have expected them to lead to incremental costs higher than the incremental revenue. According to the Commission, a market economy operator would have no interest in offering goods or services at the market price if that led to an incremental loss (recital 273 of the contested decision).

242 It should be noted that the comparative analysis is only one analytical tool amongst others for the purposes of applying the private investor test in accordance with Article 107(1) TFEU and that the use of that method of analysis does not relieve the Commission of its obligation to make a complete analysis of all factors that are relevant to the transaction at issue and its context. The Commission was therefore entitled to take into account the fact that a negative return was foreseeable in a given transaction (see, to that effect, judgment of 3 July 2014, Spain and Others v Commission, T‑319/12 and T‑321/12, not published, EU:T:2014:604, paragraphs 44 and 45).

243 Therefore, contrary to what is claimed by the applicants, the Commission did not err, in the case at hand, by referring to the negative return from the agreements at issue when it examined the adequacy of the comparative analysis.

244 None of the other arguments put forward by the applicants is of such a kind as to disprove that conclusion.

245 As regards the applicants’ argument that the Commission did not take account of the fact that, in a comparative analysis, the market price was established by reference to the prices charged by private investors in a market economy, it should be noted that that argument is tantamount to preventing the Commission from taking into account the profitability of the transactions concerned as a relevant factor in the application of the private investor in a market economy test and in the assessment of the appropriateness of the comparative analysis. It should be borne in mind that, when applying the private investor in a market economy test, it is for the Commission to conduct a complete analysis of all factors that are relevant to the transaction at issue and its context, including the situation of the recipient undertaking and of the relevant market, to determine whether the recipient undertaking received an economic advantage which it would not have obtained under normal market conditions (see paragraph 193 above).

246 Second, as regards the applicants’ argument that the Commission’s approach disregards the fact that the incremental loss which a private investor in a market economy would suffer did not constitute the advantage conferred on those who purchased the services or goods concerned, suffice it to note that an incremental profitability analysis aims precisely at establishing whether the beneficiary of a measure obtained an advantage that a private investor in a market economy which is, to the extent possible, in the same situation would not have been led to grant (see paragraph 200 above).

247 Accordingly, the applicants’ line of argument criticising the Commission for rejecting the comparative analysis because the agreements under investigation would generate higher incremental costs than incremental revenue must be rejected.

(vi) The complaints alleging that the Commission erred in stating that Ryanair had not demonstrated that the airports selected in the comparative analysis were comparable to KLU, and failure to state reasons and failure by the Commission to comply with its obligation to carry out an investigation in that regard

248 The applicants argue that the Commission wrongly claimed that the reports dated 4 July 2011 and 31 August 2012, which were produced by Ryanair’s economic consultant and submitted to the Commission as part of the administrative procedure, failed to demonstrate that the airports selected in the comparative analysis were sufficiently comparable to KLU. They assert that the airports in the sample included in that study had been selected correctly and that the Commission missed three of the five comparator airports identified by Ryanair. In particular, the Commission carried out only a superficial examination of Bournemouth (United Kingdom) and Glasgow Prestwick (United Kingdom) airports, without producing any reasons to justify the rejection of Ireland West (Ireland), Grenoble (France) and Maastricht-Aachen (Netherlands) airports as comparator airports.

249 In the applicants’ view, the Commission did not carry out any methodological or economic analysis of Ryanair’s selection of comparator airports and did not request additional information capable of substantiating its conclusion that the comparator airports chosen by Ryanair were not relevant. The applicants add that the Commission does not even refer to the comparator airports of Grenoble, Ireland West and Maastricht-Aachen in the contested decision.

250 In the first place, as regards the complaint alleging infringement of the obligation to state reasons, it must be borne in mind that the Commission stated in the contested decision that the comparative method when applying the market economy investor test could prove helpful if the price could reasonably be identified or deduced from other market indicators. However, as regards airport services, the Commission considered that that method was not as relevant as the structure of costs and revenues tended to differ greatly from one airport to another. That difference is due to the fact that costs and revenue depend on how developed an airport is, the number of airlines which use the airport, its capacity in terms of passenger traffic, the state of the infrastructure and related investments, the regulatory framework, which can vary from one Member State to another, and any debts or obligations entered into by the airport in the past.

251 The Commission also noted that Ryanair’s study of 4 July 2011 had not determined whether the comparator airports chosen for the sample satisfied all the criteria set out in the 2014 Guidelines since it had assessed only traffic volumes, the type of airport traffic and the prosperity of the surrounding area. In addition, and as has already been pointed out in paragraph 215 above, the Commission considered that, even if a sample of airports had been available, the comparative method would not have been used in the present case because of the complexity resulting in each instance from the financial flows between the airport operator and the airline and its subsidiaries, consisting of the revenue from airport charges, revenue linked to ground handling services and revenue linked to marketing services.

252 It must be pointed out that the fact that the contested decision fails either to state in detail the reasons why, as regards Bournemouth and Glasgow Prestwick airports, they cannot be accepted as comparators, or, as regards Ireland West, Grenoble and Maastricht-Aachen airports, to provide any indication in that regard, does not permit the conclusion by itself, and taking account of the case-law cited in paragraph 80 above, that there has been a failure to state reasons in terms of Article 296 TFEU.

253 In particular, it is apparent from recitals 264, 270 and 271 of the contested decision that the Commission referred in general terms to the difficulty of identifying a sample of comparator airports in the present case.

254 Furthermore, the Commission stated in particular in recitals 365 and 399 of the contested decision that the study by Ryanair’s economic consultant of 4 July 2011 had not sought dependable points of reference for the market price of airport services. In addition, the Commission considered that Bournemouth airport belonged to a company which was majority State-owned, while the study of 4 July 2011 did not claim that the airport was operated on a market economy basis. As regards Glasgow Prestwick airport, the Commission noted that the study in question stated that it had consistently been privately owned, without however mentioning that that airport was loss-making before being sold in 2013, which therefore raised the question whether the low airport charges which were indicated as points of reference were acceptable for a private investor in a market economy. Consequently, the Commission offered a summary but specific statement of the reasons why those two airports were not valid comparators.

255 It is true that the Commission does not give precise reasons in the contested decision why it did not accept Ireland West, Grenoble and Maastricht-Aachen airports as valid comparators.

256 However, it cannot be disputed that the determination of comparator airports is based on complex technical assessments. Since the contested decision clearly disclosed the Commission’s reasoning, enabling the substance of that decision to be challenged subsequently before the competent court, it would be excessive to require a specific statement of reasons for each of the technical choices or each of the figures on which that reasoning was based (judgment of 13 December 2018, Ryanair and Airport Marketing Services v Commission, T‑111/15, not published, EU:T:2018:954, paragraph 200; see also, to that effect, judgments of 1 July 2008, Chronopost and La Poste v Ufex and Others, C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraph 108, and of 27 April 2017, Germanwings v Commission, T‑375/15, not published, EU:T:2017:289, paragraph 45).

257 In the present case, it may be considered that an explanation for each of the airports in the sample selected by the applicants of the reasons why they could not be accepted was not necessary for the applicants to be able to understand the reasoning followed by the Commission or to be capable of developing their pleas in law.

258 Accordingly, the applicants were in a position to challenge the Commission’s rejection of the sample of airports selected in their economic consultant’s comparative studies before the Court.

259 The line of argument alleging failure to state reasons must therefore be rejected.

260 In the second place, the applicants fail to demonstrate that the Commission made a manifest error of assessment concerning the method of selecting the comparator airports. In that regard, they submit that the Commission was wrong to reject the choice of comparator airports by Ryanair’s economic consultant. They state that Ryanair submitted the two studies containing a comparison of the charges paid by Ryanair to KLU with those which it paid to five other airports which had several characteristics broadly similar to those of that airport.

261 The arguments put forward by the applicants are not capable of demonstrating that the Commission made a manifest error of assessment in finding that the reference airports cited by the applicants were not suitable comparator airports.

262 First, as regards the argument that the study of 31 August 2012 by Ryanair’s economic consultant showed several reasons why Bournemouth airport should behave in the same way as a private airport, the fact remains that that airport belongs to a public entity. It could not therefore constitute a dependable point of reference for the market price of airport services.

263 Secondly, as regards the applicants’ argument that Glasgow Prestwick airport was profitable for most of the period under investigation, it must be held that while that factor weighs in favour of conduct as a private investor in a market economy, it does not call into question the clarification made by the Commission, both in the contested decision and in its pleadings, that that airport became loss-making and had to be sold in 2013 and, therefore, was not a suitable benchmark for the purposes of establishing a true market price for airport services (see recitals 365 and 399 of the contested decision).

264 As regards Ireland West, Grenoble and Maastricht-Aachen airports, it should be noted that, in its pleadings, the Commission stated, without being contradicted by the applicants, that activity at Grenoble airport was heavily concentrated on the winter season and that Maastricht-Aachen airport had significant cargo operations, had received large amounts of aid since 2004 and had passed into public ownership in 2013. As regards Ireland West airport, the Commission stated that, although privately owned, it had received considerable taxpayer support, amounting to EUR 13 000 000 between 1997 and 2012.

265 In addition, in recital 266 of the contested decision, the Commission considered, without making a manifest error of assessment and referring to points 57 to 59 of the 2014 Guidelines, that a comparative assessment was not a suitable method for establishing market prices if the available benchmarks had not been defined on the basis of market considerations or the existing prices were clearly distorted by public intervention.

266 In addition, in recital 269 of the contested decision, the Commission stated that during the procedure neither the Republic of Austria nor any interested third party had suggested to it a sample of comparison airports which could be used in the present case and which are sufficiently comparable to KLU, in accordance with point 60 of the 2014 Guidelines, in terms of traffic volume, type of traffic, type and level of airport services provided, proximity of the airport to a large city, number of inhabitants in the catchment area, prosperity of the surrounding area, and different geographical areas from which passengers could be attracted.

267 It is true that the applicants submit in the reply that all those indicators were used in the report of 4 July 2011 by Ryanair’s economic consultant. However, as the Commission rightly observes, that study refers only to the indicators of traffic volume, proximity to a large city and the prosperity of the surrounding area, without providing more specific information on the criteria relating to the type of traffic, the type and level of airport services provided, and different geographical areas from which passengers could be attracted.

268 In any event, it must be held that the applicants have not put forward any evidence, either in the application or in the reply, calling into question the Commission’s finding that the airports selected in the reports prepared by Ryanair’s economic consultant were not sufficiently comparable in the light of the parameters set out in recital 269 of the contested decision.

269 It must therefore be concluded, in the light of all the evidence viewed as a whole, that the Commission did not commit a manifest error of assessment in rejecting the sample of comparator airports contained in the studies of 4 July 2011 and 31 August 2012.

270 As regards the applicants’ argument alleging a lack of effort on the part of the Commission to make enquiries with privately owned or privately operated airports in order to find points of comparison, it must be noted that that complaint relates to the scope of the Commission’s investigation obligations when it is called upon to apply the test of the private investor in a market economy to agreements such as the agreements at issue.

271 In accordance with the case-law, in the context of applying the private investor test, the Commission must examine, when assessing a measure, all the relevant features of the measure and its context (judgment of 13 December 2018, Ryanair and Airport Marketing Services v Commission, T‑111/15, not published, EU:T:2018:954, paragraph 219).

272 In that regard, all information liable to have a significant influence on the decision-making process of a normally prudent and diligent market economy operator, which is in a situation as close as possible to that of the Member State concerned, must be regarded as being relevant (see, by analogy, judgment of 20 September 2017, Commission v Frucona Košice, C‑300/16 P, EU:C:2017:706, paragraph 60).

273 It should also be borne in mind that the lawfulness of a decision concerning State aid falls to be assessed by the European Union judicature in the light of the information available to the Commission at the time when the decision was adopted (judgment of 20 September 2017, Commission v Frucona Košice, C‑300/16 P, EU:C:2017:706, paragraph 70).

274 The information ‘available’ to the Commission includes that which seemed relevant to the assessment to be carried out in accordance with the case-law referred to in paragraph 271 above and which could have been obtained, upon request by the Commission, during the administrative procedure (see, to that effect, judgment of 20 September 2017, Commission v Frucona Košice, C‑300/16 P, EU:C:2017:706, paragraph 71).

275 In the present case, it must be noted in the first place that, in the contested decision, the Commission recalled its doubts, as expressed in the 2014 Guidelines, as to the fact that it is currently possible to identify an appropriate benchmark for establishing a true market price for services provided by airports. The Commission refers in particular in points 56 to 58 of those guidelines to the fact that the vast majority of Union airports benefit from public funding, that public airports’ charges tend not to be determined with regard to market considerations, but having regard to social or regional considerations, and that even the prices charged by private airports can be strongly influenced by the prices charged by the majority of publicly subsidised airports. Thus, even if it is conceivable that a sufficient number of suitable comparator airports can be identified, it found that, in accordance with point 61 of those guidelines, the incremental profitability analysis was the most relevant criterion for the assessment of agreements concluded between airports and airlines.

276 In the second place, it should be borne in mind that the Commission stated, in recital 264 of the contested decision, that the fact that the structure of costs and revenue tends to differ greatly from one airport to another was a consideration which justified departing from the comparative analysis.

277 In those circumstances, the Commission was entitled, without committing any error, to choose, in the present case, to carry out the incremental profitability analysis rather than the comparative analysis, without having approached privately owned or privately operated airports with the aim of identifying possible airports which were sufficiently comparable to KLU.

278 In the light of the foregoing, the applicants’ complaint alleging that the Commission erred in finding that the evidence they had provided failed to demonstrate that the airports selected in the studies of 4 July 2011 and 31 August 2012 were sufficiently comparable to KLU and alleging a failure to state reasons in that regard must be rejected.

(3) The complaint that the comparative analysis shows that no advantage was granted through the agreements at issue

279 The applicants argue, with reference to the economic reports and to other evidence in the file, that the comparative analysis shows that the marketing agreements did not confer any economic advantage. The prices charged by AMS were in line, first, with the market price received by AMS from private customers and, secondly, with the market price paid by private customers for comparable services provided by other service providers. In addition, as regards the airport services agreements, the charges paid by Ryanair to KLU were compatible with a level of charges which it would have been offered by a private investor in a market economy.

280 In the reply, the applicants refer to the study prepared by their economic consultant on 10 April 2015, according to which, even if the payments provided for in the marketing agreements with AMS were included in the comparative analysis, the overall conclusion reached in the report of 31 August 2012 would not change, namely that the charges paid by Ryanair to KLU exceeded the average level of the net charges paid to Bournemouth, Glasgow Prestwick, Ireland West, Grenoble and Maastricht-Aachen airports.

281 As regards the marketing agreements, it must be noted that the economic studies cited by the applicants do not take into account, in particular, the fact that AMS’s marketing services were purchased by KLU in order to promote the operation of the route provided by Ryanair.

282 In particular, two economic reports, referred to by the applicants, compare the prices of advertising space and marketing on Ryanair’s website with the prices charged by the websites of other airlines or other travel websites for advertisements on the internet. Similarly, another economic report compares the prices set by AMS in its rate cards with rate card prices for advertising services on a wide selection of other European travel websites. Those reports do not claim, in particular, that advertisers on other travel websites are comparable to airports which purchase marketing services linked to an airline’s air transport services.

283 Moreover, the economic reports in question, which are based on the assumption of distinct and independent marketing and airport services, do not in any way call into question the Commission’s analysis that the marketing agreements are indissociable from the airport services agreements and the air transport services which they cover. The applicants cannot therefore rely on those economic reports in order to refute that analysis.

284 With regard to the examples of marketing services agreements by which certain private airports purchased AMS’s services, it is sufficient to state that the applicants have failed to show that those private airports were in a situation comparable to that of KLU when they concluded the agreements at issue.

285 So far as concerns the airport services agreements, the study of 31 August 2012 merely compares the airport charges imposed by KLU with the airport charges imposed by the airports used for comparison, without taking account of the marketing agreements, even though the two contracts must be regarded as constituting a single transaction. It is true that the applicants claim that, in its study of 10 April 2015, Ryanair’s economic consultant carried out an analysis of the effects of a comparative analysis in which the airport services agreements and the agreements concluded by AMS with regard to KLU were dealt with jointly. According to that study, the charges paid by Ryanair to KLU, after deduction of payments for marketing services, were considerably higher – in the range of 28% to 43% – than the average level of charges paid by Ryanair to Bournemouth, Glasgow Prestwick, Ireland West, Grenoble and Maastricht-Aachen airports.

286 However, that line of argument by the applicants is ineffective since it starts from the incorrect premiss that those airports constituted a selection of valid comparator airports. As is apparent from paragraphs 260 to 268 above, no valid sample of comparator airports was available on the date of the contested decision.

287 Accordingly, the applicants’ complaint alleging that the comparative analysis shows that no advantage was conferred through the agreements at issue must be rejected.

(c) Third part

288 The applicants argue that the profitability analysis relied on by the Commission in order to apply the test of the private investor in a market economy and to reach a finding of State aid, within the meaning of Article 107(1) TFEU, is vitiated by a number of manifest errors of assessment and failures to state reasons.

(1) Reliance on insufficient, unverified and unreliable data

289 The applicants argue that the profitability analysis set out in recitals 373 to 421 of the contested decision is vitiated by errors, without which the Commission would not have found State aid to exist. They add that the Commission’s calculation errors in the contested decision are set out in detail in a study of 18 July 2018 drawn up by Ryanair’s economic consultant.

290 First, the applicants submit that the Commission wrongly included the 2002 MSA between DMG and AMS in its analysis of the 2002 agreements, despite the fact that that MSA was replaced by the 2002 side letter. According to the applicants, since the 2002 MSA between DMG and AMS and the 2002 side letter were signed on the same day, it was reasonable to assume that the airport expected only one of the two agreements to become effective.

291 In that regard, it should be noted that, as is apparent from the case-law, for the purposes of applying the private investor test, the only relevant evidence is the information which was available, and the developments which were foreseeable, at the time when the decision to make the investment was taken (judgments of 5 June 2012, Commission v EDF, C‑124/10 P, EU:C:2012:318, paragraph 105, and of 27 April 2017, Germanwings v Commission, T‑375/15, EU:T:2017:289, paragraph 66).

292 In the present case, the Commission stated in recital 381 of the contested decision that the Austrian authorities had not adduced evidence that the 2002 MSA between DMG and AMS had been replaced by the 2002 side letter, but merely referred to the absence of corresponding payment documents in KFBG’s accounting sheets in order to show that KFBG had not made any payments under the second marketing agreement. Consequently, the Commission, without making a manifest error of assessment, included the 2002 MSA between DMG and AMS in its analysis, since, in the light of the case-law cited in paragraph 291 above, when that agreement was signed in February 2002, a prudent private investor in a market economy would not have had any reason to expect or foresee that it would not be implemented subsequently and that no payment would be made. As is correctly stated in recital 381 of the contested decision, when examining the 2002 agreements a private investor in a market economy ought to have relied on the situation at the time of signing and, in particular, the information available and the developments which were foreseeable at the time.

293 The applicants’ argument relating to the fact that the 2002 MSA between DMG and AMS was signed on the same day as the 2002 side letter is not sufficient to invalidate that conclusion. A private investor in a market economy could not have assumed in February 2002 that the 2002 side letter would replace the 2002 MSA between DMG and AMS on the sole basis that the two agreements were signed on 22 January 2002. Accordingly, the Commission did not make a manifest error of assessment in including the 2002 MSA between DMG and AMS in its profitability analysis.

294 In any event, it must be stated that when determining the amounts of aid to be recovered, the Commission stated in recitals 564 and 570 of the contested decision that, in order to determine the effective advantage received by Ryanair, the amount of aid to be recovered could be adjusted according to the actual payments made in respect of the marketing services, as determined ex post using evidence provided by the Austrian authorities. As was observed by the Commission in its written pleadings and at the hearing, the Austrian authorities were in a position to establish a posteriori that no payment had been made under the 2002 MSA between DMG and AMS and, therefore, the amount to be recovered had been adjusted after that factor was taken into account.

295 Second, the applicants call into question the reliability of the figures for foreseeable incremental operating costs in the contested decision, arguing that the Commission significantly overstated them. In particular, they claim that, according to the estimates of their economic consultant, the Commission assumed that incremental operating costs amounted to EUR 11.68 per departing passenger. The applicants argue that that amount is double or triple the sum calculated by KLU itself based on information from its cost accounting system used in 2005 and far higher than assumptions made in decisions relating to other airports.

296 It should be noted, first of all, that the figure of EUR 11.68, corresponding to the operating cost per departing passenger, is not given by the Commission in the contested decision, but, as is confirmed by the applicants, comes from the 18 July 2018 study by Ryanair’s economic consultant. Assuming that that amount is an accurate reflection of the Commission’s estimates, it should be noted that recital 379(e) of the contested decision states that the Austrian authorities explained that the amounts applied per additional rotation and per tonne of maximum take-off weight, and per additional departing passenger, were the best estimates for the two values which could be established for an ex ante estimation of a private investor in a market economy at the time the agreements were signed. In addition, the contested decision states in the same recital that those values were derived from the cost accounting system in place in 2002 (BAB 2002), which comprised the landing tariff, the passenger tariff and the ramp handling fee, the traffic handling fee, the infrastructure tariff and the hangar service fee.

297 As is apparent from the file, KFBG and DMG did not carry out any ex ante market studies, business plans or profitability calculations before the conclusion of individual airport services agreements with various airlines, or before the conclusion of individual marketing agreements. Moreover, as was asserted by the Commission in its written pleadings and at the hearing, without it being challenged by the applicants, the cost accounting system put in place in 2002 did not allow for the extraction of sufficiently detailed data to reconstruct the relevant information properly. The only source of information available to the Commission was estimates produced by KLU on the basis of an information sheet concerning cost apportionment appearing in the 2002 annual accounts.

298 It should be noted, in that regard, that the contested decision states in recital 415(e) that the cost accounting system existing since 2005 (BAB 2005) showed the various primary costs, secondary costs and overhead costs in detail, which added up to the total costs, and that the Austrian authorities had explained in detail the procedure by which KFBG calculated the incremental costs on the basis of certain primary cost positions. Although the cost accounting system which had existed since 2005 would have allowed the Commission to carry out a more detailed calculation of incremental operating costs, and contrary to what is claimed by the applicants, the Commission, without making a manifest error of assessment, relied on the data from the accounting system put in place in 2002. Indeed, in view of the case-law cited in paragraph 291 above, a private investor in a market economy would have regarded as relevant only the information available at the time the airport operator took its decision and not information which became available subsequently.

299 The applicants’ argument that the incremental cost used by the Commission in the present case was twice as high as the Commission’s assumptions for comparable airports which have been the subject of State aid investigations is not by itself sufficient to invalidate the conclusion drawn in paragraph 298 above, since, as is apparent from paragraphs 208 to 217 above, a private investor in a market economy would not have relied in the present case on comparative information drawn from other airports’ accounts. In addition, the applicants have not succeeded in establishing that the airports cited in the study by Ryanair’s economic consultant were comparable to KLU in terms of their respective cost accounting systems.

300 As regards the argument based on the fact that, in Commission Decision (EU) 2015/1227 of 23 July 2014 on State aid SA.22614 (C 53/07) implemented by France in favour of the Chamber of Commerce and Industry of Pau-Béarn, Ryanair, Airport Marketing Services and Transavia (OJ 2015 L 201, p. 109), the Commission used the incremental costs stated in a business plan which came after the conclusion of the agreements in question, it should be noted that the Commission found, in recital 426 of that decision, that the traffic structure and activities of the airport concerned had not altered significantly over a three-year period and that it did not have any better alternative. In the present case, a calculation system on which the Austrian authorities could rely had existed since 2002 and, moreover, the applicants have not established that there had been no significant alteration in KLU’s traffic and activities when the cost accounting system was put into operation in 2005.

301 Lastly, the applicants argue that the Commission made an error of assessment in confirming the Austrian authorities’ choice to add a security margin to the values which were the basis for the calculation of the incremental operating costs due to the volume of incremental traffic expected during the term of the 2002 agreements. In that regard, it should be noted that, as is apparent from recital 379(e) of the contested decision, the values used as the basis for calculating the incremental operating costs due to the expected incremental volume were determined on the basis of the cost accounting system used by KLU in 2002. That system comprised the landing tariff, the passenger tariff and the ramp handling fee, the traffic handling fee, the infrastructure tariff and the hangar service fee. As was noted by the Commission and confirmed by the applicants at the hearing, the cost accounting system used by KLU in 2002 allowed for a less detailed allocation of costs than that put in place in 2005, described in detail in recital 415 of the contested decision.

302 In that regard, it should be added that the Commission referred, in recital 379(e) of the contested decision, to the Austrian authorities’ explanation that they had used the most optimistic estimates for the values corresponding to the incremental operating costs per additional rotation and per tonne of maximum take-off weight, and per additional departing passenger. Accordingly, the Commission cannot be criticised for a manifest error of assessment in approving that method for calculating the incremental operating costs, as regards the 2002 agreements, since, in the absence of detailed data and as a result of the Austrian authorities’ optimistic base estimates, its intention of arriving at a prudent estimate was reasonable.

303 On the other hand, the Austrian authorities did not follow the same approach with regard to the 2006 agreements. As is apparent from recital 415(e) of the contested decision, they calculated the incremental operating costs on the basis of values established by means of the 2005 cost accounting system, allowing for a more detailed calculation of those costs than the 2002 accounting system.

304 The applicants’ argument, raised at the hearing, that there is a contradiction between recital 379(e) and recital 434(e) of the contested decision, owing to the fact that the Commission did not apply a security margin to the incremental operating costs of the agreement between KFBG and DMG, and another airline cannot succeed. In response to a question put to it by the General Court at the hearing, the Commission confirmed that the incremental costs which it had taken into account respectively for the 2002 agreements and the agreement between KFBG and DMG, and another airline using KLU were the same, adding that, if it had not added a security margin in respect of the 2002 agreements, the result would have been overoptimistic in favour of the applicants.

305 Third, the applicants argue that the load factor of 70% applied by the Commission in recital 382 of the contested decision, and reproduced in table 10 of that decision, is below the 76% target taken from the 2002 ASA and the 85% rate used as an assumption in other State aid cases involving agreements which the applicants have concluded with airports. Accordingly, the downstream assumptions based on load factors are also incorrect.

306 In that regard, it should be noted that, as the Commission rightly states, it was not unreasonable for KLU to adopt a conservative approach to the load factor when assessing the 2002 agreements, given that it had not yet gained any experience with the applicants and, in addition, low-cost airlines were at the time, in general, less well established than now. In that respect, it should be noted that the rate of 70% estimated by KLU was not far from the target rate of 76% under the 2002 ASA. Consequently, the Commission did not commit a manifest error of assessment in using a load factor of 70%. That is all the more true given that the figure of 50 000 arriving passengers expected per year, mentioned in the preamble to the 2002 ASA and implying a load factor of 76%, was a target that was to be achieved and not a binding obligation to that effect.

307 Moreover, in the light of the finding in paragraph 306 above, it is also necessary to reject the applicants’ complaint that the downstream assumptions based on a load factor of 70% are incorrect.

308 Fourth, the applicants argue that the Commission’s assumption concerning non-aeronautical revenue is based on average revenue per passenger, both arriving and departing, but that that is applied only to the expected number of Ryanair’s departing passengers. They observe, in particular, that, according to the estimates of Ryanair’s economic consultant, based on data provided by KLU and contained in its study of 18 July 2008, the non-aeronautical revenue linked to the agreements at issue are underestimated by a factor of approximately two.

309 It should be noted that, as is apparent from recitals 379(c), 381(a) and 415(d) of the contested decision, the Commission explicitly based its calculation of non-aeronautical revenue on average revenue per departing passenger. The Commission also explained in its written pleadings that it had relied on a table submitted by the Austrian authorities which set out, for each year of the 1992-2011 period, the non-aeronautical revenue, the costs pertaining to the activities which generated that revenue, the number of departing passengers and the resulting estimates of non-aeronautical revenue per departing passenger. In addition, it stated that the expected incremental non-aeronautical revenue for the agreements at issue had been calculated on that basis and after adjusting the Austrian authorities’ estimate for the 2002 agreements, as is apparent from recital 381(a) of the contested decision.

310 It is true that, according to the calculations arising from the study produced by Ryanair’s economic consultant on 18 July 2008, the figures used by the Commission establish that it underestimated the incremental non-aeronautical revenue by a factor of approximately two. However, the applicants do not produce any information that would make it possible to determine what data was provided by KLU to Ryanair’s economic consultant. Consequently, it is not possible to conclude that that data was more reliable than the figures provided to the Commission by the Austrian authorities and that, despite the explicit references in the contested decision to departing passengers, the Commission in fact based its estimates on revenue for departing and arriving passengers.

311 Fifth, the applicants submit that the 2006 MSA, signed on 28 February 2007, should have been assessed together with the 2007 agreements. Moreover, in the applicants’ view, the Commission incorrectly assessed the profitability of the 2006 agreements on the basis of the four-month period they cover, even though the 2014 Guidelines require a long-term assessment. The applicants maintain that marketing campaigns have an effect for a period which is longer than the duration of the marketing campaign itself. They argue that an interpretation of paragraph 63 of the 2014 Guidelines such that the assessment of a marketing campaign is limited to the duration of the related agreement would produce absurd and incoherent results. Lastly, the applicants dispute the Commission’s decision not to take the 2007 agreements into account. In that regard, they argue that if the 2006 agreements had been examined together with the 2007 agreements, the annual marketing costs would have been lower.

312 It should be noted first of all that, as is apparent from the first page of the 2006 MSA, that agreement was signed on 21 December 2006. In addition, it can be seen from Article 1 of the agreement that it was based on Ryanair’s obligation to operate a route three times a week between London Stansted and Klagenfurt from 19 December 2006 to 21 April 2007, that is to say, the exact term of the 2006 ASA. Finally, Article 2 of the 2006 MSA stipulates that ‘the agreement is entered into for an initial term starting on the date of its signature for 3-a-week services operated from 19 December 2006 until 21 April 2007 as per Article 4.1 and ends with the last service’. Consequently, the Commission did not commit a manifest error of assessment when it examined the 2006 MSA in conjunction with the 2006 ASA, to which the 2006 MSA was connected.

313 As regards the time-frame of the assessment of the 2006 agreements, it is apparent from the case-law cited in paragraph 191 above that it is necessary to examine whether the Commission was entitled to find, without making a manifest error of assessment, in the incremental profitability analysis, that a private investor in a market economy, acting in the place of KFBG and DMG, would have assessed the value of entering into the 2006 agreements on the basis of a time-frame of approximately four months, in accordance with the term of those agreements.

314 In that regard, it should be borne in mind that the conduct of a prudent private investor in a market economy is guided by prospects of profitability in the longer term (see, to that effect, judgment of 21 March 1991, Italy v Commission, C‑305/89, EU:C:1991:142, paragraph 20). Such an operator wishing to maximise profits is prepared to take calculated risks in determining the appropriate return to be expected for its investment.

315 In the present case, the Commission considered in the contested decision that, when assessing the value of entering into an airport services contract or a marketing services contract, a private investor in a market economy would have chosen the term of the 2006 agreements as the time frame for its assessment (recital 410 of the contested decision, which refers to the Commission’s explanation in recitals 368 and 369 of that decision, relating to the 2002 agreements). The Commission also stated that a prudent private investor in a market economy would not have taken into account the possibility of extending the 2006 agreements. At the time of signature, that investor would not have had sufficient reason to assume that an extension after a period of some years was actually a reliable prospect when it concerned a low-cost airline and, therefore, its assessment would refer to the period up to 21 April 2007. In addition, the Commission stated in recital 369 of the contested decision that such an investor would be aware that low-cost airlines such as Ryanair were known for being very responsive to market developments, both when starting up or shutting down routes and when increasing or decreasing the number of flights.

316 Moreover, it is not disputed that the 2006 agreements were entered into for a period of approximately four months with regard to the route between Klagenfurt and London Stansted.

317 It is also common ground, as stated in recital 374 of the contested decision, to which recital 410 thereof refers, the Commission not being contradicted by the applicants, that before entering into the 2006 agreements, KFBG and DMG had not prepared ex ante market studies, business plans or profitability calculations.

318 In that context, the Commission was entitled to find, without making a manifest error of assessment, that a private investor in a market economy would have assessed the profitability of the 2006 agreements in the light of the expected costs and revenue for the planned period of their performance, that is to say for four months.

319 Likewise, it must be held that the Commission was entitled to find, without committing a manifest error of assessment, that at the time the agreements were concluded, a prudent private investor in a market economy would not have counted on a renewal of those agreements following their performance, on the same or different terms, in the knowledge that low-cost airlines have proven to be very dynamic in terms of launching and withdrawing routes (recital 369 of the contested decision). In those circumstances, the Commission was entitled to take the view, without making a manifest error of assessment, that the assessment of a normally prudent and diligent private investor in a market economy acting in the place of KFBG and DMG would refer to the period up to 21 April 2007.

320 The fact that Article 5 of the 2006 MSA provided for the possibility of extending the cooperation between DMG and AMS does not, in itself, permit the inference that a private investor in a market economy would have counted on the renewal of the 2006 agreements beyond the term planned at the time they were entered into.

321 Indeed, a normally prudent and diligent private investor in a market economy which operates an airport may be willing to take a commercial risk by concluding an agreement which is loss-making throughout its planned duration, in the real expectation of renewing the agreement and continuing to operate the route and, thus, of making future profits to offset those losses. That behaviour of seeking long-term profitability may correspond to economic rationality.

322 However, it is clear from the foregoing that the Commission was entitled to find, without making a manifest error of assessment, that such a private investor would not in the present case have expected a renewal of the 2006 agreements on their expiry. In addition, the Commission found, in recital 362 of the contested decision, that such an investor, acting in the place of the manager of KLU, would have decided that the only tangible advantage that a prudent private investor in a market economy would expect from a marketing agreement, and which it would take into account in a quantifiable manner when assessing the value of entering into such an agreement coupled with an airport services agreement, would be a possible positive effect of the marketing services on the number of passengers using the routes covered by the agreements in question for the term of operation of those routes, as set out in the agreements, and that other possible benefits would be too uncertain to be quantified and taken into account.

323 The applicants’ argument that an interpretation of paragraph 63 of the 2014 Guidelines such that the assessment of a marketing campaign is limited to the term of the related agreement would lead to absurd and incoherent results must be rejected.

324 First of all, it should be observed that the classification of a measure as State aid cannot depend on a subjective assessment by the Commission, in the light of the 2014 Guidelines, but on its compliance with Article 107 TFEU and the conditions which that measure must meet in order to be treated as ‘aid’ within the meaning of that provision (see, to that effect, judgments of 24 January 2013, Frucona Košice v Commission, C‑73/11 P, EU:C:2013:32, paragraph 70, and of 27 April 2017, Germanwings v Commission, T‑375/15, not published, EU:T:2017:289, paragraph 58).

325 In any event, while point 63 of the 2014 Guidelines refers to the reasonable profit margin that a market economy investor must achieve ‘on the basis of sound medium-term prospects’, it also expressly provides that arrangements between airlines and an airport must incrementally contribute, from an ex ante standpoint, to the profitability of that airport, and that airport should demonstrate that, when setting up an arrangement with an airline, it is capable of covering all the costs stemming from the arrangement over the duration of the arrangement. Accordingly, the applicants cannot validly argue that the profitability assessment of the agreements at issue with regard to their duration would lead to absurd and incoherent results in relation to the content of point 63 of the 2014 Guidelines.

326 In the light of the foregoing, it must be concluded that the Commission did not commit any manifest error of assessment, for the purposes of the incremental profitability analysis, when it found that a private investor in a market economy would not, when entering into the 2006 agreements, have chosen a time frame exceeding the period of four months provided for in those agreements.

327 Lastly, it is necessary to reject the applicants’ argument that the Commission made a ‘fatal error’ in failing to assess the 2007 agreements along with the 2006 agreements. In that regard, it should be noted that the 2006 MSA clearly differs from the 2007 agreements, since, unlike the latter, it covered the period from 19 December 2006 to 21 April 2007 and was linked to the 2006 ASA. As the Commission has observed, without it being challenged by the applicants in that regard, the 2007 agreements were signed on 28 February 2007 and covered the period beginning on 22 April 2007, lasting for five years. Therefore, the Commission, without making a manifest error of assessment, drew a distinction between the 2006 MSA and the 2007 agreements, which, in any event, are not the subject of the contested decision.

328 Sixth, the applicants criticise the Commission, in referring to the terms of the 2006 ASA, for having erred in taking the view that, as regards the 2006 agreements, the security fee represented a cost for KLU. They stated that Ryanair’s invoice data showed that it paid the security fee to KLU. In addition, the applicants also argue that when examining the 2006 agreements the Commission failed to take into account the slot coordination fee.

329 It should be borne in mind that, according to the case-law, the Commission is required, in the interests of sound administration of the fundamental rules of the FEU Treaty relating to State aid, to conduct a diligent and impartial examination of the contested measures, so that it has at its disposal, when adopting the final decision, the most complete and reliable information possible for that purpose (judgment of 26 March 2020, Larko v Commission, C‑244/18 P, EU:C:2020:238, paragraph 67).

330 As a result, where it appears that the private investor test might be applicable, it is for the Commission to ask the Member State concerned to provide it with all the relevant information enabling it to determine whether the conditions for applying that test are satisfied (see, by analogy, judgment of 26 March 2020, Larko v Commission, C‑244/18 P, EU:C:2020:238, paragraph 68).

331 In the present case, as regards the security fee, it must be noted that the Commission explained in its written pleadings and at the hearing that according to information which it had twice obtained from the Austrian authorities, the security fee and all the rotation fees had been refunded to Ryanair. The Austrian authorities had also informed the Commission that the full reimbursement of airport fees had been put into effect at the same time as the introduction of the 2005 incentive scheme and was common practice at the time in order to attract new airlines to KLU.

332 It follows from the foregoing that the Commission sought in a diligent manner and in the interests of the sound administration of the fundamental rules of the FEU Treaty relating to State aid, relevant information from the Member State concerned, enabling it to determine whether, as regards the 2006 agreements, the security fee was in fact repaid to Ryanair. Accordingly, the Commission was entitled, without making a manifest error of assessment, to regard the security fee as an incremental cost for the airport for the purposes of analysing the profitability of the 2006 agreements.

333 As for the slot coordination fee, as has been stated by the Commission, this did not represent a large amount and was not included in the profitability calculations since it was passed on by the airport to the responsible public authority, namely Schedule Coordination Austria. At the hearing, the applicants confirmed that the cost of that fee was very low and that it would not have an impact on the conclusions of a private investor in a market economy.

334 In view of the foregoing, it must be held that the Commission did not make a manifest error of assessment in its evaluation of the security and slot coordination fees as far concerns the 2006 agreements.

335 Seventh, the applicants argue that while the Commission declared in the contested decision that the payments made by the local authorities to KFBG were compatible with the internal market, it refused to consider aid for the conclusion of the agreements as revenue for the airport. They add that an airport may use compatible aid to benefit its employees and managers, without there being the slightest benefit for the airlines. The applicants claim that the Commission’s approach also contradicts point 65 of the 2014 Guidelines.

336 That argument cannot succeed.

337 According to the case-law, measures which, whatever their form, are likely directly or indirectly to favour certain undertakings or are to be regarded as an economic advantage which the recipient undertaking would not have obtained under normal market conditions are regarded as aid (see judgment of 8 May 2013, Libert and Others, C‑197/11 and C‑203/11, EU:C:2013:288, paragraph 83 and the case-law cited).

338 As noted in paragraph 190 above, the conditions which a measure must meet in order to be treated as ‘aid’ for the purposes of Article 107 TFEU are not met if the recipient undertaking could, in circumstances which correspond to normal market conditions, have obtained the same advantage as that which has been made available to it through State resources. Furthermore, the concept of normal market conditions within the meaning of that settled case-law is to be interpreted as referring to the conditions governing the economy of a Member State when the latter is not intervening in favour of the recipient undertaking (see order of 5 February 2015, Greece v Commission, C‑296/14 P, not published, EU:C:2015:72, paragraph 34 and the case-law cited).

339 In the present case, contrary to what is argued by the applicants, the subsidy granted by the province of Carinthia to KFBG was clearly separate from the marketing agreements which they entered into with KFBG and DMG. It should be observed that a public entity can be the recipient of State aid once the undertaking is active in the marketplace. However, nothing prevents a public body, which has been invested with general interest missions and, in that context, has been exercising an economic activity under the supervision of the State, which forms part of the public administration, like KFBG, as is apparent from recitals 18 and 24 to 26 of the contested decision, from also granting aid to undertakings, such as the applicants, by way of a separate measure (see, to that effect, judgment of 24 March 2011, Freistaat Sachsen and Others v Commission, T‑443/08 and T‑455/08, EU:T:2011:117, paragraphs 143 and 145).

340 Although the two sets of aid measures at issue, namely the one granted by the province of Carinthia to KFBG and those granted by KFBG and DMG to the applicants, have some connection at the conceptual and contextual level, since they are part of measures relating to the operation of KLU and its commercial relationship with various airlines using that airport, they are clearly different from an economic point of view for the purposes of the ex ante profitability assessment of the marketing agreements at issue.

341 In that regard, it is true that, as the Commission pointed out in the contested decision, ‘the financial contributions were partly granted to cover losses that were caused by the costs incurred by KFBG through marketing contracts concluded between KFBG and DMG with different airlines’ and that they were motivated ‘by the will to economically invigorate the region and underlined the importance of the airport for the regional economy’.

342 The fact that the financial contributions granted by the province of Carinthia to KFBG were intended to cover the annual operating losses of KFBG and DMG resulting from costs associated with marketing contracts concluded by them with various airlines, enabling KLU ultimately to remain in operation, does not mean that, at the same time, those contributions were also to be taken into account as incremental revenue when applying the ex ante profitability analysis of the agreements at issue.

343 The application of the test of the private investor in a market economy is intended to enable the Commission to answer the question whether the applicants could, in the present case, obtain the same advantage as that made available to them by means of the agreements at issue in circumstances which correspond to normal market conditions. It is therefore reasonable that, when applying the ex ante profitability analysis, the Commission may take into account only the incremental revenue and costs resulting from each agreement at issue and the activity of the airline concerned being present at KLU.

344 As the Commission rightly pointed out in recital 381 of the contested decision, referring to point 63 of the 2014 Guidelines:

‘The airport should demonstrate that … it is capable of covering all costs stemming from the arrangement … If additional support is needed, the MEO test is not fulfilled. This implies that any public support cannot be considered incremental revenue, failing which the provision would be void of meaning.’

345 That finding by the Commission is not vitiated by a manifest error of assessment. To hold that aid granted to the manager of an airport in order partly to finance marketing agreements which that airport enters into with an airline constitutes incremental revenue resulting from that agreement would run counter to the objective pursued by the use of the test of the private investor in a market economy. If that were not the case, a public authority could, in order for a positive ex ante profitability analysis to be found for an agreement between the manager of an airport and an airline, grant subsidies to the airport for the operating losses that the agreement would generate for it. In other words, if the operating aid granted to KFBG in the present case were taken into account as incremental revenue, that would result in an artificial reduction in the incremental costs of each agreement at issue.

346 As regards the applicants’ arguments based on their interpretation of point 65 of the 2014 Guidelines, it should be noted that that point merely lists certain conditions which, when complied with, mean that the advantage resulting from operating aid compatible with the internal market would be considered as not being passed on to a specific airline. Accordingly, that point is not relevant in the present case since that consideration by the Commission relates to the compatibility of State aid granted to airlines and not to the existence or otherwise of aid.

347 Lastly, the applicants’ argument that an airport could use compatible aid to favour an airport’s employees and managers rather than an airline using the airport, apart from being speculative, is not such as to invalidate the conclusion drawn in paragraph 345 above, namely that, if the operating aid granted to KFBG in the present case was taken into account as incremental revenue, that would result in an artificial reduction in the incremental costs of each agreement at issue.

348 In those circumstances, no contradiction or manifest error can be seen in the Commission’s assessment of the aid paid by the province of Carinthia to KFBG and in its failure to take that aid into account as incremental revenue when applying the test of the prudent private investor in a market economy to the agreements at issue.

349 The applicants’ complaint alleging that the Commission used insufficient, unverified and unreliable data must therefore be rejected.

(2) Failure to attribute an appropriate value to the marketing services provided under the MSAs

350 The applicants point to a contradiction between the Commission’s finding, made in recital 362 of the contested decision, that marketing enhances passenger numbers, and the attribution of a zero value to marketing in its profitability analysis. They further argue that the appropriate value of a service is equivalent to its market price. In the present case, the prices charged by AMS were market prices and, therefore, the value obtained by KLU was equal to the price paid. They add in that regard that the payment to AMS for its marketing services had an independent purpose and was not linked to Ryanair’s undertaking to operate the route between London Stansted and Klagenfurt. Lastly, the applicants criticise the Commission for having ignored the effectiveness of advertising on Ryanair’s website. In the contested decision, the Commission did not engage with the evidence provided by Ryanair showing the great popularity of Ryanair’s website, but had implicitly considered that the services provided under the marketing agreements had zero value, which constitutes a failure to state reasons.

351 The Commission rejects the applicants’ arguments.

352 In that regard, it should be noted that in the contested decision the Commission analysed the advantages that a private investor in a market economy, acting in the place of KFBG and DMG, could have expected from the marketing agreements. In particular, it found that the marketing services were capable of boosting passenger traffic on the routes covered by the agreements at issue. It added that an increase in passenger traffic could lead to an increase in revenue generated by certain airport charges for the airport operator and an increase in non-aeronautical revenue, in particular from car parks, restaurants and other businesses. It concluded from this that, when assessing the value in entering into those agreements, a private investor in a market economy would have been able to take that positive effect into account (recitals 340 to 344 of the contested decision). However, the Commission rejected as being too uncertain all the benefits from the marketing agreements which went beyond the routes covered by those agreements and their term (recitals 345 to 362 of that decision). In addition, the Commission included the amounts paid by DMG to AMS and LV for the purchase of marketing services among the incremental costs to be deducted from the incremental revenue linked to the London Stansted to Klagenfurt route (recitals 379 and 415 of the contested decision).

353 Given the above, it must be held that the line of argument alleging insufficient reasoning in the contested decision must be rejected. The way in which the Commission took into account in the incremental profitability analysis the value of the marketing services provided by AMS and LV is clearly apparent from the contested decision.

354 Furthermore, in the first place, as for the applicants’ argument criticising the Commission’s analysis concerning the effectiveness of advertising on Ryanair’s website, which it is appropriate to examine before the other arguments, first, it must be emphasised that, in assessing the sustainability of the positive effects of the marketing agreements which a private investor in a market economy would have envisaged, the Commission did not call into question the popularity of Ryanair’s website, as was apparent from the evidence provided, in terms of the number of direct visits or visits by search engine, but examined its impact on the purchasing behaviour of the persons who had just visited it. Accordingly, in recital 348 of the contested decision, the Commission considered, in particular, that it was highly unlikely that the memory which visitors to Ryanair’s website would retain of the advertising for Klagenfurt and its region as a travel destination would last or have an influence on their ticket purchases for more than a few weeks.

355 Consequently, the applicants’ argument that the Commission did not examine the evidence demonstrating the popularity of Ryanair’s website must be rejected. In fact, the popularity of that website does not make it possible to draw any conclusions regarding the expected long-term effects on consumer behaviour and traffic to KLU of a visit to a page on that website devoted to Klagenfurt, given the limited period of such an advertisement.

356 Second, to assess the effects on consumer behaviour, the Commission found, in recital 348 of the contested decision, that an advertising campaign was likely to have a sustainable effect when the promotional activities involved one or more advertising media to which consumers were regularly exposed over a given period. As examples, it mentioned an advertising campaign on general TV and radio stations, popular internet sites or various advertising posters displayed outside or inside public places. The Commission therefore found that such a campaign was capable of producing a sustainable effect on consumers if they were regularly exposed to those media. However, it considered that a promotional activity limited to just Ryanair’s website was unlikely to have ‘an effect that lasts much past the end of that promotion’. According to the Commission, it was highly unlikely that visitors to Ryanair’s website have a recollection of the advertising in relation to Klagenfurt and its region which is sustainable and capable of influencing their purchases of airline tickets for more than a few weeks.

357 It follows that, in order to assess the effects of the marketing services, the Commission relied primarily on the distinction between (i) the effects of campaigns to which consumers were exposed frequently, or even passively and repeatedly, and (ii) those of the promotional activity on Ryanair’s website, limited to a certain period and therefore devoid of sustainable effects beyond the duration of the promotion.

358 It is true that the applicants submit, on the basis of an economic report on the consolidation of trade marks through marketing, that the Commission’s position disregards the extremely long duration of visits to Ryanair’s website and ignores the opinion of marketing experts, who have established that targeted marketing operations aimed at captive audiences were more effective and profitable than non-targeted and passive marketing operations aimed at the general public.

359 In that regard, it should be borne in mind that in recital 348 of the contested decision the Commission explained and found that a promotional activity limited to just Ryanair’s website was unlikely to have an effect that lasts much past the end of the promotional activity.

360 Although the passages of the economic report in question explain generally the benefits of advertising targeted at a captive audience, in particular through AMS, in comparison with advertising in a magazine or on a television channel, they do not enable adequate conclusions to be drawn as to the actual long-term effects that such advertising may have on the purchasing behaviour of visitors to Ryanair’s website and on passenger traffic on the routes covered by the agreements at issue.

361 Consequently, the applicants fail to demonstrate that the Commission committed a manifest error of assessment by stating in recital 348 of the contested decision that it was highly unlikely that access to the promotion for the destination of Klagenfurt on Ryanair’s website may have encouraged visitors to that website to purchase Ryanair tickets to Klagenfurt for more than a few weeks after that access or that the promotion on that website may have had an effect lasting much past the end of the promotion campaign.

362 For the same reasons, it is necessary to reject the applicants’ argument that advertising on Ryanair’s website had increased KLU’s general visibility with regard to companies specialising in airport retail.

363 Consequently, it is necessary to reject the applicants’ argument that the Commission wrongly assessed the marketing effect of Ryanair’s website. In addition, it is apparent from paragraphs 356, 359 and 361 above that the Commission gave sufficient reasons for the contested decision in that regard.

364 As regards, in the second place, the applicants’ complaint that there is a contradiction between the Commission’s finding that the marketing agreements have a positive impact on the number of passengers and the failure to take that positive effect into account in the profitability analysis, must be rejected, since it is based on a false premiss. In particular, the contested decision does not show that the Commission attributed a zero value to the marketing services in its profitability analysis. On the contrary, in recital 362 of the contested decision, the Commission stated that the only tangible benefit that a prudent private investor in a market economy would expect from a marketing agreement would be a possible positive effect of those services on the number of passengers using the routes covered by the agreements in question. Next, in recital 366 of the contested decision, which forms part of Section 7.4.3.2, entitled ‘Conclusion on the terms for applying the market economy operator test’, the Commission stated that it would determine the incremental profitability of the agreements as it would have been assessed by a private investor in a market economy at the time of their conclusion, by estimating, inter alia, the future incremental traffic expected from the implementation of the agreements in question, ‘possibly taking into account the effects of the marketing services on the load factors of the routes covered by the agreements’.

365 Consequently, the contested decision does not show that the Commission refused to take into account the impact of the marketing services on the number of passengers travelling on the routes covered by the agreements at issue. The fact that the Commission did not precisely state, in Tables 10 to 11 of the contested decision, the load factor which would correspond to the impact of the marketing services on the number of passengers cannot invalidate that finding, given that, without committing a manifest error of assessment, the Commission examined the 2002 and 2006 ASAs and MSAs jointly and, consequently, it was not necessary to analyse separately the impact of the marketing agreements on load factors. Moreover, as is apparent from paragraph 306 above, the load factor of 70% used by the Commission in respect of the 2002 agreements was a reasonable assumption for assessing incremental revenue when applying the private investor in a market economy test.

366 In the third place, it is necessary to reject the applicants’ argument that the value of the marketing services, since it is equal to the market price, compensated for the price of purchasing those services as a cost in the incremental profitability analysis.

367 In particular, the applicants do not validly contest the approach adopted in the contested decision, according to which the airport services agreements and the marketing agreements were closely linked in that the marketing services were essentially designed to promote the air routes (see paragraphs 230 to 233 above). Under that approach, and contrary to what is claimed by the applicants, the Commission was entitled, without committing a manifest error of assessment, to consider the purchase price of the marketing services as an incremental cost to be deducted from the incremental revenue deriving from the air routes at issue.

368 In addition, given that the Commission, without making a manifest error of assessment, considered that the marketing agreements were closely linked to the airport services agreements, it is also necessary to reject the applicants’ argument that payment for the services provided by AMS was not linked to Ryanair’s undertaking to operate a route to an airport, but had an independent purpose. For the same reason, the applicants’ argument that the manager of KLU could resell the marketing services must be rejected as ineffective.

369 Furthermore, the applicants also do not validly rebut the Commission’s analysis that a private investor in a market economy would have considered any other benefit than that resulting from the positive effect on the number of passengers using the routes operated by Ryanair as being too uncertain to be taken into account in a quantifiable manner (recitals 340 to 362 of the contested decision).

370 First, the Commission found that even if the marketing services led to an increase in passenger traffic on the routes covered by the agreements for the period they were provided, it was likely that that effect was negligible after that period and that the effect on other routes was insignificant (recital 349 of the contested decision). The applicants have not succeeded in calling that finding into question (see paragraph 361 above).

371 Secondly, the applicants have not provided any evidence to rebut the Commission’s analysis that the methods proposed by Ryanair in the studies of 17 and 31 January 2014, during the administrative procedure, for assessing the benefits of the marketing agreements going beyond the routes at issue and the term of operation of those routes, led to very uncertain and unreliable results (recitals 346 to 358 of the contested decision).

372 In those circumstances, the applicants have not established that the Commission committed a manifest error of assessment in basing the incremental profitability analysis on the assumption that a private investor in a market economy would take account of the marketing services agreements only for the positive effect on the number of passengers using the route provided by Ryanair and, therefore, on the additional incremental revenue linked to passenger traffic on that route, while considering the purchase price of the marketing services to be paid to AMS as an incremental cost for KLU to be deducted from the incremental revenue, and not as being offset by the value of the marketing services.

373 In conclusion, the applicants’ complaint alleging a failure to attribute an appropriate value to the marketing services provided under the marketing agreements must be rejected.

(3) Dismissal of the rationale behind KLU’s decision to purchase the marketing services

374 The applicants argue that the Commission was wrong not to take account of the grounds underlying KLU’s decision to purchase the marketing services. They maintain that KLU took the rational commercial decision to purchase marketing services because of the many qualitative and strategic benefits, namely the enhancement of its image and increased market value, the diversification of airlines, and the increase in the proportion of inbound passengers.

375 In particular, in the first place, as regards enhancing KLU’s image, the applicants claim, relying in particular on an economic report which focuses on the sustainable effects of AMS’s advertising, that for KLU the marketing agreements were intended to raise its renown and its attractiveness. Enhancement of its image, increasing its asset value and achieving its strategic objectives through advertising on Ryanair’s website constituted benefits which were anticipated by KLU which the Commission should have taken into account.

376 The applicants refer in that regard to the Commission’s decision-making practice in relation to airport aid measures which took into account, in the incremental profitability analysis, the qualitative and strategic goals of airports, going beyond a mere cost–benefit analysis. Furthermore, they refer to point 66 of the 2014 Guidelines, which provides that, when assessing arrangements between airports and airlines, the Commission is also to take into account the extent to which the arrangements can be considered part of the implementation of an overall strategy of the airports expected to lead to profitability at least in the long term.

377 The applicants submit that the Commission’s general thesis, that a private investor in a market economy would refuse to purchase marketing services if the incremental costs incurred under the transaction involving the marketing services agreements and the parallel airport services agreements exceeded the incremental revenue in discounted value terms, is incorrect and is not confirmed by the 2014 Guidelines or the case-law. According to the applicants, first, the qualitative benefits arising from the marketing agreements must be taken into account as expected added value resulting from those agreements. Second, unprofitable or even loss-making conduct could be compatible with the test of a private investor in a market economy if that conduct was the least onerous alternative.

378 In the second place, the applicants claim that KFBG and DMG could expect that the marketing agreements would contribute to a diversification of the airlines serving KLU. In that connection, they make the point that when Ryanair started operating at KLU it had unused capacity of 60% in the region. The applicants explain, relying on an economic report, that visibility on Ryanair’s website is a means of advertising the airport’s credibility as a destination. Demonstrated success by an airport which has engaged in advertising to promote itself could encourage other airlines to include it in their schedule. A demonstrated ability to improve its image through advertising would incentivise airlines to begin services to it.

379 In the third place, the applicants argue that the Commission failed to address the argument that the marketing agreements were intended to increase the proportion of inbound passengers in the total number of passengers that Ryanair had committed to deliver to KLU, even though that aspect was mentioned in the very terms of the 2006 MSA. Consequently, given that inbound passengers were likely to generate higher non-aeronautical revenues than outbound passengers, the Commission’s profitability analysis was not properly reasoned and probably underestimated the level of non-aeronautical revenue that KLU could reasonably expect from the marketing agreements.

380 The Commission disputes those arguments. It observes, in particular, that point 66 of the 2014 Guidelines does not mean that agreements leading to a reduction in incremental profitability may nevertheless be regarded as complying with the test of a private investor in a market economy where they form part of an overall strategy of the airport expected to lead to profitability in the long term. According to the Commission, such a reading of point 66 of the 2014 Guidelines would be contrary to points 62 to 64 of those guidelines and would ignore the specific characteristics of the airport industry.

381 It must be borne in mind that, according to the case-law, the classification of a measure as State aid cannot depend on a subjective assessment by the Commission and must be determined regardless of any previous administrative practice of that institution, assuming it to have been established (see judgment of 3 July 2014, Spain and Others v Commission, T‑319/12 and T‑321/12, not published, EU:T:2014:604, paragraph 46 and the case-law cited).

382 It follows that it is not necessary to examine whether the Commission’s previous practice in taking decisions relied on by the applicants has been established.

383 Next, it is necessary to examine the applicants’ line of argument that the Commission did not take into account the grounds underlying the decision by the manager of KLU to purchase marketing services in the light of the market economy private investor test, as follows from Article 107(1) TFEU, and not in the light of the 2014 Guidelines.

384 It should be recalled that, when applying the private investor test, the Commission must, when assessing a measure, examine all the relevant features of the measure and its context (see, to that effect, judgment of 17 December 2008, Ryanair v Commission, T‑196/04, EU:T:2008:585, paragraph 59).

385 In the present case, the Commission states that a private investor in a market economy guided by the prospect of profitability would not be prepared to purchase marketing services if it envisaged that, despite the positive effect of those services on passenger traffic on the air routes concerned, the incremental costs generated by the agreements would exceed the incremental revenue in discounted value terms.

386 Without there being any need to rule, in general terms, on the Commission’s argument that an agreement concluded between an airport and an airline resulting in an incremental loss in net present value cannot be deemed to be in line with the test of the private investor in a market economy on the ground that it forms part of an overall strategy of the airport expected to lead to profitability in the long term, it should be noted, in any event, for the reasons set out below, that the applicants do not show in the case at hand that the Commission made a manifest error of assessment by not considering that the advantages invoked by the applicants were qualitative and strategic.

387 In the first place, as regards the argument relating to the necessity of advertising for a regional airport and the fact that raising the profile of an airport and enhancing its image increases its market value for its owners, it should be noted first of all that in the contested decision the Commission did not dispute that regional airports have an interest in purchasing marketing services or even require them.

388 By contrast, the Commission explained that AMS’s marketing services were not likely to enhance KLU’s image in the long term. However, the applicants have not adduced any evidence to refute that explanation (see paragraphs 356 and 357 above).

389 It should be noted, inter alia, that the passage in the economic report on which the applicants rely does not specify what kind of advertising could result in lasting effects, nor does it specifically indicate whether the marketing services purchased by KFBG and DMG were likely to influence the conduct of customers and enhance KLU’s image in the long term, beyond the period covered by the marketing agreements or on routes other than the one operated by Ryanair to or from that airport.

390 Lastly, as regards the applicants’ argument that unprofitable or even loss-making conduct could be the least onerous solution and therefore compatible with the test of the private investor in a market economy, it must be pointed out that the contested decision found, without making a manifest error of assessment in that regard, that such an investor, placed in the situation of the manager of KLU, would have expected the combination of the airport services agreements and the marketing agreements to be unprofitable. Consequently, as the Commission rightly states, not signing those agreements was a better alternative for such an investor, given that entering into them led to negative incremental profitability and therefore worsened KLU’s financial situation as compared with a situation in which those agreements were not entered into.

391 Therefore, a private investor in a market economy guided by prospects of profitability, acting in the place of the manager of KLU, would, in the present case, have preferred not to enter into those agreements.

392 Accordingly, it is necessary to reject the applicants’ argument that the Commission made a manifest error of assessment as regards taking into account the enhancement of KLU’s image and, consequently, KLU’s asset value thanks to the marketing agreements.

393 In the second place, as regards the contribution of the marketing agreements to the diversification of airlines operating at KLU, it must be stated, first of all, that the applicants’ arguments do not succeed in demonstrating that the marketing services provided by AMS and LV were reasonably intended to attract airlines other than Ryanair to KLU. It is apparent inter alia from the contested decision that by concluding the 2002 and 2006 marketing agreements and the payment of specified amounts on that basis, the main concern of the regional authorities and KLU was rather to increase the number of passengers flying on the routes concerned and, a fortiori, to maintain Ryanair’s air activities at KLU.

394 Furthermore, although attracting other airlines in order to fill the unused capacity of an airport may constitute a cost-efficient strategy, it is plausible that a private investor in a market economy in the same situation as KLU would require at the very least that the arrival of a new airline does not generate expected incremental costs in excess of incremental revenue. Even if a private investor in a market economy might be led in certain circumstances to sign an agreement involving incremental loss, the applicants have not shown that such an investor, acting in the place of KLU, would have been prepared to adopt such conduct.

395 Accordingly, the applicants’ complaint that the Commission failed to take into account the advantage relating to diversification of airlines at KLU must be rejected.

396 In the third place, as regards the argument relating to the proportion of inbound passengers, it should be recalled that the Commission concluded in paragraph 362 of the contested decision that the only benefit that a prudent private investor in a market economy would expect from a marketing agreement and which it would quantify when deciding on whether or not to enter into such an agreement, coupled with an airport services agreement, was that the marketing services would have a positive effect on the number of passengers using the routes covered by the agreements in question, for the term of operation of those routes, as set out in the agreements.

397 In that regard, and while assuming that the absolute number of passengers and the proportion of ‘inbound passengers’ are not necessarily in an invariable relationship, the Commission, when examining the incremental profitability of the agreements at issue, in fact took into account the total number of passengers using the routes covered by the agreements in question. In particular, the contested decision implicitly included, by means of a load factor of 70% and 85% per flight as regards respectively the 2002 and 2006 agreements, the effect of the marketing agreements on the number of inbound passengers and the associated non-aeronautical revenues (see recitals 379 and 415 of the contested decision).

398 In those circumstances, it cannot validly be maintained that the Commission made a manifest error of assessment in carrying out an analysis on the basis of the total number of passengers without making an adjustment that took into account the ratio of ‘inbound passengers’ and ‘outbound passengers’. In addition, the fact that the Commission did not specifically refer to the increase in the proportion of inbound passengers is not sufficient to conclude that the contested decision was vitiated by a failure to state reasons in that regard, since it made it clear the way in which the Commission applied the load factors to the incremental traffic.

399 Consequently, it is necessary to reject the applicants’ argument concerning the benefits linked to the increase in inbound traffic.

400 In the light of the foregoing, the Court must reject the applicants’ arguments about the dismissal of the rationale underlying KLU’s decision to conclude the marketing agreements.

(4) The fact that wider benefits stemming from the relationship with Ryanair were wrongly ruled out

401 The applicants submit that the Commission wrongly failed to take into account in its profitability analysis the positive network externalities that an airport in a market economy could expect from Ryanair’s operations at the airport. The higher number of airport users due to Ryanair’s presence would increase the attractiveness of that airport, leading to additional routes, airlines and commercial outlets.

402 The Commission disputes the applicants’ arguments.

403 In that regard, it should be noted that, as the Commission states, the concept of network externalities, as invoked by the applicants, is linked to the prospect of a larger number of passengers.

404 It follows from the foregoing that the Commission was entitled to take the view, without committing any manifest error of assessment, that a prudent private investor in a market economy acting in the place of KFBG would not rely on the commercial relationship with Ryanair extending beyond the operation of the air routes covered by the agreements at issue. Consequently, it must be accepted that an investor acting as a normally prudent and diligent manager of an airport would not have made its calculations of revenue and costs on the basis of a larger number of passengers arising from an increased frequency of existing air routes or the setting up of additional routes by Ryanair.

405 Similarly, a rational private investor in a market economy would not count on the arrival of other airlines or commercial outlets within the airport concerned beyond the duration of the agreements and side letters concluded with Ryanair.

406 In those circumstances, the Commission did not commit a manifest error of assessment by not taking into account network effects that were too uncertain.

407 In the light of the foregoing, the fifth plea must be rejected.

6. Sixth plea in law, alleging breach of Articles 107(1) and 108(2) TFEU and an error of assessment by the Commission in determining the amount of State aid

408 In the first place, the applicants claim that in the contested decision the Commission made a clear departure from its previous practice by ordering the recovery of precise amounts in Articles 5 and 6 of that decision, namely EUR 1 827 267 and EUR 141 326. The applicants allege that the Commission committed an error of assessment by taking the view that the indicative amount of aid could be adjusted in accordance with evidence that the Austrian authorities might subsequently provide but only as regards the marketing fees actually paid to Ryanair, LV or AMS during the relevant period. They take the view that the Commission thereby excluded other relevant ex post factors, such as the amount of airport charges actually paid by Ryanair to KLU.

409 Moreover, the applicants submit that the Commission committed an error of assessment in finding that the Austrian authorities had not provided any proof that the 2002 MSA between DMG and AMS was not implemented. In particular, they are of the opinion that it is logically impossible to prove the absence of an event, for instance the absence of a payment.

410 In addition, the applicants argue that the Commission committed an error of assessment by relying entirely on the ex ante assessment of the profitability of the 2006 agreements without applying any adjustments to those results. In the applicants’ view, the amount of recoverable aid should have reflected the differences between, on the one hand, the ex ante revenue and costs and, on the other, the actual data gathered ex post. In particular, the applicants claim that, for the purposes of calculating the quantum of the aid, the Commission should have taken into account the ex post incremental operating costs, which are moreover stated in the contested decision. According to the applicants, the requirement of ex ante evidence applies only in order to determine whether there is an advantage in the light of the test of the private investor in a market economy, and not to quantify that advantage for the purposes of recovering the aid.

411 In the second place, the applicants argue that the Commission committed a manifest error in the instructions to the Austrian authorities regarding the adjustment of the quantum of recoverable aid. In that regard, they claim that, in recital 564 of the contested decision, the Commission states that the aid amounts recoverable on the basis of its calculations may be adjusted using evidence provided ex post by the Austrian authorities. In the applicants’ view, the use of the word ‘may’ was wrong because the Commission thereby conveyed the message that adjusting the indicative amount was merely an option left to the discretion of the Member State.

412 In the third place, the applicants point to a contradiction between the grounds of the contested decision and its operative part, since in the former the Commission states that the Austrian authorities may adjust the amount of aid, whereas in the operative part no mention is made of such a possibility of adjustment.

413 The Commission disputes the applicants’ arguments.

414 It should be noted that the obligation on the Member State concerned to abolish, through recovery, aid considered by the Commission to be incompatible with the single market has as its purpose, according to settled case-law, the restoration of the situation as it was before the aid was granted. That objective is attained once the aid in question, together with default interest, where appropriate, has been repaid by the recipient, or, in other words, by the undertakings which actually enjoyed the benefit of the aid. By repaying the aid, the recipient forfeits the advantage which it had enjoyed over its competitors on the market, and the situation prior to payment of the aid is restored (see judgment of 21 December 2016, Commission v Aer Lingus and Ryanair Designated Activity, C‑164/15 P and C‑165/15 P, EU:C:2016:990, paragraphs 89 and 90 and the case-law cited).

415 It must also be recalled that no provision of EU law requires the Commission, when ordering the recovery of aid declared incompatible with the internal market, to fix the exact amount of the aid to be recovered. It is sufficient for the Commission’s decision to include information enabling the recipient itself to work out that amount without overmuch difficulty (see judgment of 20 March 2014, Rousse Industry v Commission, C‑271/13 P, not published, EU:C:2014:175, paragraph 77 and the case-law cited).

416 However, if the Commission, pursuant to its obligation to conduct a diligent and impartial examination of a case under Article 108 TFEU, does decide to order the recovery of a specific amount, it must assess, as accurately as the circumstances of the case will allow, the actual value of the benefit received from the aid by the beneficiary (see judgment of 29 March 2007, Scott v Commission, T‑366/00, EU:T:2007:99, paragraph 95 and the case-law cited).

417 In restoring the situation existing prior to the payment of the aid, the Commission is, on the one hand, obliged to ensure that the real advantage resulting from the aid is eliminated and thus to order recovery of the aid in full. The Commission may not, out of sympathy with the beneficiary, order recovery of an amount which is less than the value of the aid received by the latter. On the other hand, the Commission is not entitled to mark its disapproval of the serious character of the illegality by ordering recovery of an amount in excess of the value of the benefit received by the recipient of the aid (judgment of 29 March 2007, Scott v Commission, T‑366/00, EU:T:2007:99, paragraph 95).

418 In the present case, in the first place, the applicants challenge, in essence, the fixing of the amounts to be recovered, criticising the Commission for having applied the ex ante calculation without any possibility of updating all the results ex post.

419 It should be noted that both the existence and the amount of aid fall to be assessed in the light of the situation prevailing at the time it was granted (judgment of 19 October 2005, Freistaat Thüringen v Commission, T‑318/00, EU:T:2005:363, paragraph 125; see also, to that effect, judgment of 26 March 2020, Larko v Commission, C‑244/18 P, EU:C:2020:238, paragraph 113).

420 Consequently, and contrary to what is claimed by the applicants, the Commission did not make an error of assessment in determining the amount of aid to be recovered concerning the agreements at issue by taking into account ‘the negative part of the projected incremental flow (revenues less costs) at the time when the transaction was concluded’. In other words, the Commission rightly determined the amount of the aid to be recovered solely on the basis of ex ante evidence, that is to say, on developments foreseeable for a private investor in a market economy at the time the agreements were concluded.

421 As the Commission has rightly pointed out, if the applicants’ line of argument concerning the possibility of quantifying aid after it was granted were to be accepted, the amount of aid to be recovered could vary according to totally fortuitous developments, such as the economic climate or the economic benefit possibly gained by the recipient of the aid through exploiting the advantage originally granted.

422 In addition, the applicants are wrong in arguing that the Commission made an error of assessment by including the payments set out in the 2002 MSA between DMG and AMS in the calculation of the amount of aid to be recovered. As the Commission expressly stated in the contested decision, although the Austrian authorities submitted that that agreement was replaced by the 2002 side letter and did not enter into force, they did not provide any proof of their argument, but merely referred to the absence of corresponding payment documents in KFBG’s accounting sheets to demonstrate that it had not made payments under the 2002 MSA between DMG and AMS. That finding by the Commission is neither vitiated by an error of assessment nor constitutes a reversal of the burden of proof, as the applicants claim, since there was no substantiation for the Austrian authorities’ argument.

423 The applicants’ argument that it is not possible to provide evidence of the absence of marketing payments must be rejected. In fact, as stated by the Commission, and not contested by the applicants, the Austrian authorities established during the recovery process, by checking KLU’s accounts, which had no trace of a transfer under the 2002 MSA between DMG and AMS, that no payment had been made in that respect.

424 Nor furthermore did the Commission make an error of assessment in stating, in recital 570 of the contested decision, that the amount of aid to be recovered ‘may be adjusted at a later stage, using evidence provided by Austria’. As already noted in paragraph 415 above, no provision of EU law requires the Commission, when ordering the recovery of aid declared incompatible with the internal market, to fix the exact amount of the aid to be recovered. It is sufficient for the Commission’s decision to include information enabling the recipient itself to work out that amount without overmuch difficulty.

425 In the present case, the Austrian authorities claimed during the administrative procedure, without providing any written evidence in that regard, that the 2002 MSA between DMG and AMS had been replaced by the 2002 side letter and that, consequently, the former agreement had never entered into force. It should be noted that that claim concerned a particular situation in which the aid payable under the 2002 agreement between DMG and AMS was said not to have been paid to the beneficiary. Since that claim related to the implementation of the agreement in question, the Commission could, without making an error of assessment, provide guidance to the Austrian authorities as to the possibility of subsequently adjusting the sum to be recovered if they were able to provide proof that committed amounts had not been paid.

426 The fact that the Commission sets an indicative sum in the present case is clear from recital 572 of the contested decision, in which it states that LV and AMS are jointly and severally responsible for all the aid received through the agreements at issue, specifying that this is an ‘indicative principal amount’. Consequently, contrary to what is claimed by the applicants, the Commission followed its previous practice, assuming that it is bound by that practice, since the contested decision provides guidance to the Austrian authorities as to how the established amount could be adjusted subsequently.

427 As to the applicants’ argument that the Commission should also have taken into account ex post evidence relating to KLU’s operating costs when calculating the sums to be recovered, it cannot succeed. The evidence cited by the applicants does not relate to the payment as such of sums due under the agreements concerned, but to assessments made in the contested decision on the application of the test of the prudent private investor in a market economy. However, according to the principles set out in paragraph 419 above, that principle can be applied only on the basis of ex ante evidence, that is to say, evidence which was available at the time the agreements were entered into. Consequently, in order to determine the amount of aid to be recovered, the Commission was not required to update the incremental operating costs ex post.

428 In general, it should be noted that, in order to determine the various amounts to be used to calculate the indicative amounts to be recovered, the Commission took into account the negative parts of the incremental flows (incremental revenue less incremental costs), established by applying the test of the private investor in a market economy, with reductions for the periods of time in which the payments were not yet due after the signature of the agreements or were no longer due when the agreements did not run to term.

429 It follows that the Commission fulfilled its obligation to calculate the value of the aid that the applicants received under the agreements at issue. Contrary to what the applicants claim, it is apparent from paragraph 428 above that, in order to do so, it carried out an in-depth ex ante profitability analysis in order to calculate the advantage procured by the unlawful aid to its recipient.

430 In the second place, as regards the instructions given to the Austrian authorities on the adjustment of the amount of the aid, the applicants are wrong to claim that the use of the term ‘may’ in recital 564 of the contested decision suggests that recovery of the aid concerned is discretionary. More specifically, a joint reading of recitals 564 and 570 of the contested decision does not confirm the meaning given by the applicants to the way the Commission’s statement is formulated. Given that the Commission considered that the lack of implementation of the marketing agreement claimed by the Austrian authorities and Ryanair was not corroborated by any evidence, the word ‘may’ could not concern the discretionary nature of the recovery of the aid, but the possibility of adjusting the sum relating to it on condition that the Austrian authorities submit proof, during the recovery process, that no payments relating to it were made.

431 In the third place, there is no contradiction in the contested decision’s recitals and the reference to the specific amounts to be recovered in Articles 5 and 6 of the decision. In particular, in view of the fact that the operative part of an act must be interpreted in the light of its relevant recitals, a reader may reasonably understand that the amounts mentioned in Articles 5 and 6 of the contested decision may be adjusted during the recovery process if the Austrian authorities prove that the agreement in question has not been implemented. In that regard, it should be noted that, in recitals 571 and 572 of the contested decision, the Commission refers to the indicative nature of the amounts which are subsequently reproduced in Articles 5 and 6 of the decision. Consequently, contrary to what is claimed by the applicants, the Austrian authorities were not placed in an ambiguous situation where they would be unable to determine whether or not they were entitled to adjust the amount of recoverable aid.

432 It follows from the considerations set out above that the sixth plea cannot be upheld.

433 Consequently, the action must be dismissed in its entirety. Furthermore, as regards the applicants’ request for measures of organisation of procedure, having regard to the documents annexed by the parties to their written pleadings and their answers to the written and oral questions of the Court, the Court considers that it has been sufficiently informed to rule on the action and decides that there is no need to grant that request.

IV. Costs

434 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. As the applicants have been unsuccessful, they must be ordered to pay their own costs together with those of the Commission, in accordance with the form of order sought by the Commission.

On those grounds,

THE GENERAL COURT (Fifth Chamber)

hereby:

1. Dismisses the action;

2. Orders Ryanair DAC, Airport Marketing Services Ltd and FR Financing (Malta) Ltd to bear their own costs and to pay those incurred by the European Commission.

Delivered in open court in Luxembourg on 29 September 2021.

Table of contents

I. Background to the dispute

A. Measures at issue

1. The 2002 agreements

2. The 2006 agreements

B. Administrative procedure

C. Contested decision

II. Procedure and forms of order sought

III. Law

A. Admissibility of additional evidence

B. Substance

1. The first plea, alleging infringement of the applicable limitation period and failure to state reasons

2. The second plea in law, alleging infringement of the principle of good administration enshrined in Article 41 of the Charter and of the rights of the defence

3. The third plea in law, alleging infringement of Article 107(1) TFEU on the ground that the Commission erroneously imputed the measures at issue to the Republic of Austria

4. The fourth plea, alleging infringement of Article 107(1) TFEU on the ground that the Commission failed to establish that the condition of selectivity was satisfied

5. The fifth plea in law, alleging infringement of Article 107(1) TFEU on the ground that the Commission erroneously concluded that the agreements at issue conferred an advantage on the applicants

(a) First part

(b) Second part

(1) Rejection of the comparative analysis as a method of applying the test of the private investor in a market economy

(2) The complaints concerning the grounds relied on in the contested decision to depart from the comparative analysis in the present case

(i) The complaint alleging that the Commission erred in finding that diversity among airports justified its departing, in the present case, from the comparative analysis

(ii) The complaint concerning the liberalisation of the air transport market

(iii) The complaint concerning the influence of prices charged by publicly subsidised airports on prices charged by comparator airports

(iv) The complaint alleging that the Commission erred in rejecting the application of the comparative analysis by referring to the airport services agreements together with the marketing agreements

(v) The complaint alleging that the comparative analysis was rejected on the ground that the agreements under investigation would generate higher incremental costs than incremental revenue

(vi) The complaints alleging that the Commission erred in stating that Ryanair had not demonstrated that the airports selected in the comparative analysis were comparable to KLU, and failure to state reasons and failure by the Commission to comply with its obligation to carry out an investigation in that regard

(3) The complaint that the comparative analysis shows that no advantage was granted through the agreements at issue

(c) Third part

(1) Reliance on insufficient, unverified and unreliable data

(2) Failure to attribute an appropriate value to the marketing services provided under the MSAs

(3) Dismissal of the rationale behind KLU’s decision to purchase the marketing services

(4) The fact that wider benefits stemming from the relationship with Ryanair were wrongly ruled out

6. Sixth plea in law, alleging breach of Articles 107(1) and 108(2) TFEU and an error of assessment by the Commission in determining the amount of State aid

IV. Costs