The General Court of the EU set aside the Commission decision to open a state aid in-depth investigation regarding the Lübeck-Blankensee Airport

By the judgment of 9 September 2014 made in the Case T-461/12 HansestadtLübeck v Commission the General Court of the EU (the Court) has set aside the Article 108(2) TFEU decision of the Commission to open a state aid in-depth investigations targeting the financial relations between public authorities and the Lübeck-Blankensee Airport (CaseSA.27585 and Case SA.31149 http://europa.eu/rapid/press-release_IP-12-156_en.htm). More precisely, the European Commission focused on the fees the manager of Lübeck-Blankensee Airport charged to airlines for using the airport facilities. The airport manager set such fees with the 2006 Fees Regulation, which was duly submitted to the local authorities of the Land of Schleswig Holstein for prior approval as required by the German legislation. In particular, the Commission believed that the airport fees set in the 2006 Regulation amounted to state aid, since they conferred an undue competitive advantage on the carriers operating at the Lübeck-Blankensee Airport over competitors flying from other airports.
The airport manager and the local authorities challenged the Commission decision before the Court. It pleaded that the contested airport fees were not state aid as they did not favour certain undertakings as required by Article 107 TFEU.
The Court pointed out that, pursuant to the German airport legislation, each airport manager has to adopt a regulation setting out the fees that carriers have to pay for using the facilities of that airport. Thus, the 2006 Regulation applies only to airliners operating at the Lübeck-Blankensee Airport and such airliners are only charged the fees set out in it, whereas carries using other German airports pay the fees set by the managers of those airports. Thereby, the position of the carriers operating at the Lübeck-Blankensee Airport is not comparable with that of competitors using other airports.
That said, the gist of the case is whether the contested airport fees are selective in nature. In order to establish whether the fees a public authority charge for the supply of goods or a service are selective it is necessary to consider all the users of the goods or services to ascertain whether any of them may obtain an advantage from the fees charged on them. The firms that cannot or do not intend to use the goods or services do need to be taken into account. Had these firms been also considered, the scope of application of state aid rules would be excessively wide, with any non discriminatory fees being likely to be qualified as state aid as they favour certain firms or sectors. In other words the requirement of selectivity must be considered only in relation to the firms that use or may be use the goods and/or services supplied by a public authority so that to make sure that the firms do not receive any advantage by the public sector.
Therefore, the fact that 2006 Regulation only applied to the carriers flying at the Lübeck-Blankensee Airport was not itself sufficient to establish that the airport fees meet the selectivity requirement in Article 107 TFEU. In addition, it was clear that all carriers operating at this airport were charged the fees set out in the 2006 Regulation for using the airport facilities. Then, the Court concluded that the Commission mistakenly took the view that the airport fees set in the 2006 Regulation were selective and might constitute state aid. It then agreed with the pleadings of the airport manager and the local authorities and set the Commission decision aside.



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