Opinion of Advocate General Ćapeta delivered on 7 April 2022

1 Original language: English.

2 From the poem La primavera by Grazia Deledda.

3 In 1926, Deledda (1871 to 1936) became the first Italian woman to win the Nobel Prize in Literature.

4 Commission Decision (EU) 2017/1861 of 29 July 2016 on State aid SA33983 (2013/C) (ex 2012/NN) (ex 2011/N) – Italy – Compensation to Sardinian airports for public service obligations (SGEI) (OJ 2017 L 268, p. 1).

5 Judgments of 13 May 2020, Volotea v Commission ( T‑607/17, EU:T:2020:180), and of 13 May 2020, easyJet Airline v Commission ( T‑8/18, EU:T:2020:182) (the judgments under appeal).

6 Ibid., paragraphs 1 to 41 and 1 to 45 respectively.

7 Bolletino ufficiale della Regione autonoma della Sardegna no12, 16 April 2010.

8 See, for instance, judgment of 1 July 2008, Chronopost v UFEX and Others ( C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraph 141 and the case-law cited).

9 See judgment of 17 September 1980, Philip Morris Holland v Commission ( 730/79, EU:C:1980:209, paragraph 11) (finding that competition is considered to have been distorted if a measure mitigates the burden imposed on a beneficiary undertaking and thereby strengthens its position compared with competing undertakings). On the minor role played in practice by the criteria relating to the distortion of competition and the affectation to the internal market, including the differential approach taken as regards Article 101 TFEU, see Soltész, U., Part II: Article 107 TFEU, in Säcker, F.J, Montag, F. (eds), European State Aid Law: A Commentary, Bloomsbury Publishing, London, 2016, points 454, 489 and 490.

10 See, to that effect, Merola, M. and Caliento, F., Is the notion of aid broadening or shrinking over time, and if so, why? A subjective view on the rationale of the case law, in Parcu, L., Monti, G. and Botta, M., EU State Aid Law. Emerging Trends at the National and EU Level, Edward Elgar Publishing, Cheltenham, 2020, pp. 46 to 48 (explaining that State aid control has become a governance tool to police Member State’s economic policies).

11 As Advocate General Jacobs explained in his Opinion in PreussenElektra ( C‑379/98, EU:C:2000:585, points 114 to 133).

12 Judgment of 16 May 2002, France v Commission ( C‑482/99, EU:C:2002:294, the judgment in France v Commission, paragraphs 51 to 57).

13 In this regard, I observe that the first and second branches of the second part of the first ground of appeal in Case C‑331/20 P are directed against paragraphs 69 to 98 of the judgment in Case T‑607/17, whereas the third ground of appeal in Case C‑343/20 P is directed specifically against paragraphs 126, 127, 160 and 161 of the judgment in Case T‑8/18.

14 On various occasions within the first and second branches of the second part of the first ground of appeal in Case C‑331/20 P and the third ground of appeal in Case C‑343/20 P, the appellants equally criticise, in generic terms, various factual determinations of the General Court. Given the jurisdiction of the Court of Justice on appeal, those arguments are inadmissible.

15 Judgment of 14 February 2019 ( T‑131/16 and T‑263/16, EU:T:2019:91, the judgment in Belgium and Magnetrol International v Commission).

16 Judgment of 28 March 2019 ( C‑405/16 P, EU:C:2019:268).

17 Paragraphs 52 to 56 of the judgment in France v Commission. As recalled, more recently, in judgment of 2 March 2021, Commission v Italy and Others ( C‑425/19 P, EU:C:2021:154, the judgment in Commission v Italy and Others, paragraphs 61 to 62), those include, specifically, any indication, in the particular case, either, on the one hand, of the involvement by the public authorities in the adoption of a measure or the unlikelihood of their not being involved, having regard also to the compass of the measure, its content or the conditions which it contains, or, on the other hand, the absence of those authorities’ involvement in the adoption of that measure …. That conclusion can be supported by evidence of the fact that the public undertaking in question could not have taken the decision at issue without taking account of the requirements of the public authorities or the directives emanating from the public authorities, the integration of the public undertaking into the structures of the public administration, the nature of its activities and the exercise of those activities on the market in normal conditions of competition with private operators, the legal status of the undertaking as well as the intensity of the supervision exercised by the public authorities.

18 Or, as Maxian Rusche, T., Micheau, C., Piffaut, H., and Van de Casteele, K., have termed it, the presence of a smoking gun. See Faull, J., and Nikpay, A., (eds), The EU Law of Competition, 3rd ed., Oxford University Press, Oxford, 2014, point 17.33.

19 See also, judgments of 17 September 2014, Commerz Nederland ( C‑242/13, EU:C:2014:2224, paragraphs 31 to 33); of 18 May 2017, Fondul Proprietatea ( C‑150/16, EU:C:2017:388, paragraphs 18 to 20); and of 23 November 2017, SACE and Sace BT v Commission ( C‑472/15 P, not published, EU:C:2017:885, paragraphs 34 to 36).

20 See, to that effect, paragraphs 67, 69 and 72 of the judgment in Commission v Italy and Others.

21 Emphasis added.

22 Judgments of 13 May 2020, Volotea v Commission ( T‑607/17, EU:T:2020:180, paragraphs 72, 75, 91 and 104), and of 13 May 2020, easyJet Airline v Commission ( T‑8/18, EU:T:2020:182, paragraphs 96, 99,and 125).

23 Paragraph 120 of the judgment in Belgium and Magnetrol International v Commission.

24 I note that the judgment was overturned on appeal, given that the Court deemed precisely such practices to be a relevant indicator for the purposes of finding the lack of any further implementing measure within the meaning of Article 1(d) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ 2015 L 248, p. 9). See paragraph 112 of the judgment in Belgium and Magnetrol International v Commission.

25 Judgments of 13 May 2020, Volotea v Commission ( T‑607/17, EU:T:2020:180, paragraphs 88 to 92), and of 13 May 2020, easyJet Airline v Commission ( T‑8/18, EU:T:2020:182, paragraphs 121 to 125).

26 Ibid., paragraphs 71 and 72 and 95 and 96 respectively.

27 Ibid., paragraphs 94 and 98 and 129 to 132 respectively.

28 Judgment of 28 March 2019, Germany v Commission ( C‑405/16 P, EU:C:2019:268, paragraph 73). See also, to that effect, Opinion of Advocate General Campos Sánchez-Bordona in Georgsmarienhütte and Others ( C‑135/16, EU:C:2018:120, point 112).

29 See, for instance, judgments of 17 July 2008, Essent Netwerk Noord and Others ( C‑206/06, EU:C:2008:413, paragraph 70); of 19 December 2013, Association Vent De Colère! and Others ( C‑262/12, EU:C:2013:851, paragraph 21); and of 13 September 2017, ENEA ( C‑329/15, EU:C:2017:671, paragraph 25).

30 See, in particular, judgment of 2 February 1988, Kwekerij van der Kooy and Others v Commission ( 67/85, 68/85 and 70/85, EU:C:1988:38, paragraph 35), as more recently recalled in the judgment of 9 November 2017, Commission v TV2/Danmark ( C‑656/15 P, EU:C:2017:836, paragraph 45).

31 See, in particular, judgments of 13 March 2001, PreussenElektra ( C‑379/98, EU:C:2001:160, paragraph 58), and of 30 May 2013, Doux Élevage and Coopérative agricole UKL-ARREE ( C‑677/11, EU:C:2013:348, paragraph 26).

32 That finding relates to the admissible parts of the first and second branches of the second part of the first ground of appeal in Case C‑331/20 P and of the third ground of appeal in Case C‑343/20 P.

33 An aspect correctly highlighted by the General Court in its judgment of 13 May 2020, Volotea v Commission ( T‑607/17, EU:T:2020:180, paragraph 58).

34 Although arising from different circumstances, and raised by the appellants, indicative in that respect is the judgment of 25 July 2018, Commission v Spain and Others ( C‑128/16 P, EU:C:2018:591). There, the Court found that the mere fact that an advantage, granted to an economic interest organisation, is passed on in its entirety to the members of that organisation does not automatically mean that the former is not a beneficiary for the purposes of the aid scheme in question (ibid., paragraphs 45 and 46).

35 See Commission Notice on the notion of State aid as referred to in Article 107(1) of the Treaty on the Functioning of the European Union (OJ 2016 C 262, p. 1), point 115.

36 See, most notably, judgment of 13 March 2001, PreussenElektra ( C‑379/98, EU:C:2001:160, paragraph 62) (finding that a diminution in tax receipts for the State is an inherent feature of the legislative provision in question). See also judgments of 17 March 1993, Sloman Neptun ( C‑72/91 and C‑73/91, EU:C:1993:97, paragraph 21); of 1 December 1998, Ecotrade ( C‑200/97, EU:C:1998:579, paragraph 36); of 17 June 1999, Piaggio ( C‑295/97, EU:C:1999:313, paragraph 42); and of 15 July 2004, Pearle and Others ( C‑345/02, EU:C:2004:448, paragraph 36).

37 Commission Notice on the notion of State aid as referred to in Article 107(1) of the Treaty on the Functioning of the European Union (OJ 2016 C 262, p. 1), point 116.

38 Ibid.

39 Such true ancillary effects are present solely by reason of a functional or automatic link with the measure in question, such that they follow naturally from that scheme or because those ancillary effects are necessary for the proper functioning of the activity supported thereunder.

40 See, to that effect, Nicolaides, P., State Aid Uncovered, Critical Analysis of Development in State Aid 2020, Lexxion, Berlin, 2021, pp. 86 and 87.

41 See judgments of 13 May 2020, Volotea v Commission ( T‑607/17, EU:T:2020:180, paragraph 125), and of 13 May 2020, easyJet Airline v Commission ( T‑8/18, EU:T:2020:182, paragraph 191).

42 See judgment of 13 May 2020, easyJet Airline v Commission ( T‑8/18, EU:T:2020:182, paragraph 225).

43 These arguments are presented in the first and third branches of the first part of the first ground of appeal in Case C‑331/20 P and in the first two grounds of appeal in Case C‑343/20 P and are directed respectively against paragraphs 122 to 145 of the judgment in Case T‑607/17 and paragraphs 175 to 177 and 189 to 191 of the judgment in Case T‑8/18.

44 See judgment of 5 June 2012, Commission v EDF ( C‑124/10 P, EU:C:2012:318, paragraph 103) (the private investor test is not an exception which applies only if a Member State so requests …. It follows … that, where it is applicable, that test is among the factors which the Commission is required to take into account for the purposes of establishing the existence of such aid.). See also judgment of 20 September 2017, Commission v Frucona Košice ( C‑300/16 P, EU:C:2017:706, paragraphs 23 to 25 and 29).

45 Commission Directive 80/723/EEC of 25 June 1980 on the transparency of financial relations between Member States and public undertakings (OJ 1980 L 195, p. 35), now codified in Commission Directive 2006/111/EC of 16 November 2006 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).

46 Piernas López, J.J., The Concept of State Aid Under EU Law: From Internal market to competition and beyond, Oxford University Press, Oxford, 2015, p. 78.

47 See Application of Articles 92 and 93 to public authorities’ holdings in company capital (Bulletin of the European Communities, 9-1984), pp. 28 and 93 to 95.

48 See, to that effect, Belgium’s argumentation in judgment of 10 July 1986, Belgium v Commission ( 40/85, EU:C:1986:305, paragraph 9), claiming that if the Region of Wallonia were prohibited from taking part in the increase in capital of an undertaking that would result in the discrimination of the State in relation to private shareholders in the same company.

49 As appears from the early judgments of the Court on the similar rule contained in Article 4(c) of the Treaty establishing the European Coal and Steel Community (ECSC), the existence of an advantage cannot be excluded unless the return is at all times equivalent to the amount of expenditure. See, for instance, judgment of 23 February 1961, De Gezamenlijke Steenkolenmijnen in Limburg v High Authority ( 30/59, EU:C:1961:2, p. 31).

50 See, for instance, Second Report on Competition Policy, annexed to the Sixth General Report on the Activities of the Communities (Office for Official Publications of the European Communities, 1973), point 124, which uses the concept of State capitalism.

51 See for example, Commission Notice on the notion of State aid as referred to in Article 107(1) of the Treaty on the Functioning of the European Union (OJ 2016 C 262, p. 1), point 73: The Union legal order is neutral with regard to the system of property ownership … and does not in any way prejudice the right of Member States to act as economic operators. See also, Hancher, L., Ottervanger, T., and Slot, P.J., EU State Aids , Sweet and Maxwell, London, 2021, p. 96 and the Opinion of Advocate General Szpunar in Commission v FIH Holding and FIH Erhvervsbank ( C‑579/16 P, EU:C:2017:911, point 34).

52 See judgments of 24 January 2013, Frucona Košice v Commission ( C‑73/11 P, EU:C:2013:32, paragraph 71), and of 6 March 2018, Commission v FIH Holding and FIH Erhvervsbank ( C‑579/16 P, EU:C:2018:159, paragraph 46 and the case-law cited).

53 Judgment of 5 June 2012 ( C‑124/10 P, EU:C:2012:318).

54 Ibid., paragraph 81 (emphasis added). However, that case has to be viewed within its own context, in which the French State was indeed the owner of Électricité de France (EDF). Therefore, Court’s statement that, in the case of public undertakings, the assessment of the presence of an advantage is made by applying the private investor test (ibid., paragraph 78) cannot be understood as meaning that that test is applicable only in such situations.

55 Judgment of 17 December 2008 ( T‑196/04, EU:T:2008:585, paragraph 85) (emphasis added). In that case, however, in a similar way as in judgment of 5 June 2012, Commission v EDF ( C‑124/10 P, EU:C:2012:318), the State was the owner of the beneficiary airport. Along the same lines, see also judgment of 11 September 2012, Corsica Ferries France v Commission ( T‑565/08, EU:T:2012:415, paragraph 79), upheld on appeal in 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).

56 Commission Notice on the notion of State aid as referred to in Article 107(1) of the Treaty on the Functioning of the European Union (OJ 2016 C 262, p. 1), point 77.

57 Along the same lines, see Kohler, M., New Trends Concerning the Application of the Private Investor Test, European State Aid Law Quarterly, 2011, Vol. 10(1), pp. 21 to 33.

58 See judgments of 2 July 1974, Italy v Commission ( 173/73, EU:C:1974:71, paragraph 13); of 29 February 1996, Belgium v Commission ( C‑56/93, EU:C:1996:64, paragraph 79); and of 5 June 2012, Commission v EDF ( C‑124/10 P, EU:C:2012:318, paragraph 77).

59 See, for instance, judgments 22 November 2007, Spain v Lenzing ( C‑525/04 P, EU:C:2007:698, paragraph 2, quoting paragraph 27 of the judgment under appeal in that case) (deferral of social security payments); of 14 September 2004, Spain v Commission ( C‑276/02, EU:C:2004:521, paragraph 13) (non-payment of taxes and social security contributions); of 21 March 2013, Commission v Buczek Automotive ( C‑405/11 P, not published, EU:C:2013:186, paragraph 2, quoting paragraph 14 of the judgment under appeal in that case) (waiver of public debt); of 20 September 2017, Commission v Frucona Košice ( C‑300/16 P, EU:C:2017:706, paragraph 2, quoting paragraph 25 of the judgment under appeal in that case) (remission of tax debt); and of 11 July 2002, HAMSA v Commission ( T‑152/99, EU:T:2002:188, paragraph 10) (public debt remission).

60 Judgment of 5 June 2012, Commission v EDF ( C‑124/10 P, EU:C:2012:318, paragraphs 17 and 21).

61 Judgment of 17 December 2008, Ryanair v Commission ( T‑196/04, EU:T:2008:585, paragraph 15).

62 See judgment of 14 September 1994, Spain v Commission ( C‑278/92 to C‑280/92, EU:C:1994:325, paragraph 22), and of 28 January 2003, Germany v Commission ( C‑334/99, EU:C:2003:55, paragraph 134). See also Kohler, M., New Trends Concerning the Application of the Private Investor Test, European State Aid Law Quarterly, 2011, Vol. 10(1), pp. 21-33, at p. 26.

63 The point being that only those costs and benefits that can be expected to be relevant to a market operator can be taken into consideration when assessing whether such a hypothetical operator would act in the same way as the State.

64 Whether the undertaking at issue would indeed be able to negotiate a loan deferral under the same or similar conditions as the one granted by State is then a question that goes to the application of the MEO test. It is not one that relates to the applicability of that test.

65 As to the methods to establish compliance with the MEO test, see Robins, N. and Puglisi, L., The market economy operator principle: an economic role model for assessing economic advantage, in Hancher, L. and Piernas Lopez, J.J, (eds) Research handbook on European State Aid Law, Edward Elgar Publishing, Cheltenham, 2021, pp. 15 to 39, at p. 21 et seq.

66 Judgments of 13 May 2020, Volotea v Commission ( T‑607/17, EU:T:2020:180, paragraphs 118, 119 and 127), and of 13 May 2020, easyJet Airline v Commission ( T‑8/18, EU:T:2020:182, paragraphs 176, 177 and 193).

67 Ibid., paragraphs 125 and 191 respectively.

68 See, for instance, judgment of 10 December 2020, Comune di Milano v Commission ( C‑160/19 P, EU:C:2020:1012, paragraph 100 and the case-law cited).

69 See, for instance, judgment of 11 November 2021, Autostrada Wielkopolska v Commission and Poland ( C‑933/19 P, EU:C:2021:905, paragraph 117).

70 Which means that a more thorough statement of reasons is required of the Commission than in the case of acts of general application, such as regulations. See, for instance, judgments of 15 April 2008, Nuova Agricast ( C‑390/06, EU:C:2008:224, paragraph 79 and the case-law cited), and of 10 September 2015, Fliesen-Zentrum Deutschland ( C‑687/13, EU:C:2015:573, paragraphs 76 to 78 and the case-law cited).

71 Judgment of 6 October 2021, World Duty Free Group and Spain v Commission ( C‑51/19 P and C‑64/19 P, EU:C:2021:793, paragraph 71 and the case-law cited).

72 The relevant part of that recital reads as follows: In addition, despite the provisions of Law 10/2010, no tender procedure was put in place with a view to selecting airlines and funding the activity plans. Airport operators published notices on their respective websites and they chose the best offer, meaning that the financial support provided to airlines did not follow an open and transparent tender procedure.… As a consequence, even if proper tender procedures had been followed to select airlines, this could not have ruled out the existence of an advantage.

73 Judgments of 13 May 2020, Volotea v Commission ( T‑607/17, EU:T:2020:180, paragraph 131 to 145) and of 13 May 2020, easyJet Airline v Commission ( T‑8/18, EU:T:2020:182, paragraph 198 to 211).

74 Although a tender procedure is not always necessary to exclude the presence of aid. See judgment of 24 October 2013, Land Burgenland and Others v Commission ( C‑214/12 P, C‑215/12 P and C‑223/12 P, EU:C:2013:682, paragraph 93 and the case-law cited). Similarly, Commission Notice on the notion of State aid as referred to in Article 107(1) of the Treaty on the Functioning of the European Union (OJ 2016 C 262, p. 1), point 97 et seq.

75 See, to that effect, judgments of 13 May 2020, Volotea v Commission ( T‑607/17, EU:T:2020:180, paragraph 136) and of 13 May 2020, easyJet Airline v Commission ( T‑8/18, EU:T:2020:182, paragraph 203). To the same effect, judgment of 5 August 2003, P & O European Ferries (Vizcaya) and Diputación Foral de Vizcaya v Commission ( T‑116/01 and T‑118/01, EU:T:2003:217, paragraph 121).

76 Which is what, to my mind, the General Court in its judgment of 28 January 1999, BAI v Commission ( T‑14/96, EU:T:1999:12, paragraphs 73, 76 and 79) was trying to establish.

77 Judgments of 13 May 2020, Volotea v Commission ( T‑607/17, EU:T:2020:180, paragraph 139) and of 13 May 2020, easyJet Airline v Commission ( T‑8/18, EU:T:2020:182, paragraph 206).