General Court Partly Annuls Commission Decision on State Aid to Wizz Air at Timișoara Airport
The General Court has rendered its judgment in Carpatair v Commission (T-522/20 RENV),concerning two measures adopted by the airport operator AITTV consisting of a discount on airport charges for aircraft in the 2010 Airport Information Publication (AIP) and agreements concluded in 2008 between AITTV and Wizz Air, setting out airport charges, discounts, and marketing arrangements. The Commission had examined both measures and concluded that neither constituted State aid. Following an initial judgment by the General Court and an appeal to the Court of Justice, the General Court has now delivered its final ruling.
The Court dismissed the action as inadmissible insofar as it concerned the 2008 and 2010 agreements, finding that Carpatair had not established that its competitive position had been substantially affected by those measures. The Court however held that Carpatair was directly concerned by the part of the decision relating to the 2010 AIP, which constitutes a regulatory act not entailing implementing measures.
The Court upheld Carpatair’s first plea and annulled the Commission’s decision insofar as it found the 2010 AIP to be non-selective. The Commission had examined all three types of discounts in the AIP collectively, concluding that since the discounts were available to all airlines meeting the relevant criteria, they were non-discriminatory. The Court found this approach to be legally flawed for three reasons. First, the general nature of a measure does not preclude a finding of de facto selectivity. Second, the Commission failed to examine the discount in point 7.3 of the 2010 AIP individually. Third, the markedly higher and less progressive nature of the discount in point 7.3 reinforced the conclusion that this specific discount was structurally designed to benefit a particular type of operator to the exclusion of others.