In its judgment of 24 March 201142, the General Court on the one hand, dismissed the application of Freistaat Sachsen (‘FS’) and Land Sachsen-Anhalt (‘LSA’) as inadmissible, and on the other hand, accepted the application of Middeldeutsche Flughafen AG (‘MF’) and Flughafen Leipzig Halle (‘FLH’) against the same Commission decision, and partially annulled that decision due to contradictory and thus insufficient motivation of the decision.
The case concerned three things: a capital injection of EUR 350 million by FS and LSA into MF for the construction of a new runway at the Flughafen Leipzig Halle, which is owned by MF; a framework agreement between MF, FLH, and DHL; and a ‘patronage agreement’ containing terms on which DHL can make use of the new runway and the adjoining hub and in which MF and DHL grant some guarantees to DHL. With the decision of 23 July 2008, the Commission held that the capital injection of EUR 350 million was state aid which was compatible with the common market and was thus authorised. However, the framework agreement and the ‘patronage agreement’ were incompatible aid and thus could not be granted. Against this decision, FS and LSA as well as MF and FLH launched an application for annulment in so far as the decision held that the capital injection constituted state aid and that the state aid amounted to EUR 350 million.
The General Court started by dismissing the application launched by FS and LSA as inadmissible due to lack of interest. The General Court held that it was not sufficient to simply state that the Commission decision held that the state aid was compatible with the common market and thus in principle did not have an adverse effect on FS and LSA (authorities granting the aid). But rather, it had to examine whether the Commission decision produced binding legal effects that affect the applicant’s position. The General Court then concluded that no such legal effects follow from the point of the Commission decision that was attacked. Therefore, the application of FS and LSA was dismissed.
As to the application of FLH and MF, the General Court examined the eight pleas in law invoked by FLH and MF and partially annulled the Commission decision. Some interesting points of the judgment dealt with the question whether aid in the form of a capital injection to finance the construction of a new runway can be considered as state aid. The General Court first pointed out that the exploitation an airport constituted an economic activity and that the exploitation of the runway is part of this economic activity. Furthermore, the financed activity (i.e., construction of new runway) cannot be considered separately from the future use of this runway. Therefore, the financing of the construction of a runway which will be later on commercially exploited can be considered as state aid. The fact that the Commission in the past by its communication of 1994 stated that it will not look into the construction of new infrastructure, does not put this assessment in question as there has been an evolution in the aeronautic sector. This evolution has led to the judgment in the case of Aeroport de Paris in which the Court confirmed that the exploitation of an airport constitutes an economic activity and is thus subject to state aid control. As the FLH exercises an economic activity, it can be considered as an undertaking and thus an entity capable of receiving state aid, contrary to what FLH and MF argued. Also, the fact that on the one hand, the Commission considers FLH as beneficiary of state aid concerning the capital injection but on the other hand, considers FLH as granting aid (in relation to the framework- and patronage agreement), is not contradictory. It concerns two different activities and thus justifies the different qualification. Other arguments such as allegations of a retroactive application of the Commission communication of 2005 and violation of the principles of equal treatment and respect of legitimate expectations were rejected by the Court based on an incorrect reading of the Commission Decision.
Finally, the Court annulled the Commission decision in so far as the Commission held in its decision that the state aid amounted to EUR 350 million. In fact the Court held that this clearly contradicted some considerations of the Commission decision in which the Commission held that some of the investments surrounding the construction of the new runway (such as measure in relation to public security, fire protection, …) do not constitute state aid. As these investments were also paid with the capital injection of EUR 350 million, it was clear that the total amount of EUR 350 million could not fully constitute as state aid. The Court went on to conclude that although the Commission is not obliged to specify the exact amount of the aid, but when it does so it has to be the correct amount as this can have an impact on the interest that the beneficiary of the aid has to pay for the period in which the aid was granted before the aid was cleared. Therefore, the Court annulled the Commission Decision in so far as it concluded that the state aid amounted to EUR 350 million.