Ryanair and its marketing subsidiary, Airport Marketing Services ("AMS"), lodged an annulment request before the EU General Court on 5 February 2016 against the Decision of the Commission of 23 July 2014 in the Nîmes airport case that compels them to repay unlawful state aid of an amount of EUR 9.7 million.
On 23 July 2014, the Commission had adopted its Decision regarding the financing of Nîmes Airport and the contracts concluded by the airport with Ryanair and AMS. After an investigation which was initiated by a complaint lodged by Air France and which lasted five years, the Commission concluded that the financing of the airport that consisted in a functioning aid was compatible with the internal market and could therefore be authorized. However, it decided that Ryanair and AMS had benefited from an unlawful and incompatible State aid, which had to be repaid. The amount to be repaid by the Irish companies was EUR 9.7 million.
Following the publication of the decision on the Commission’s website, Ryanair and AMS lodged their annulment request on 5 February 2016. The official publication of this decision took place on Wednesday 27 April 2016.
The applicants invoked five pleas in law:
- the Decision violates Article 41 of the Charter of Fundamental Rights of the EU, the principle of good administration and the applicants’ right of defence, as the Commission failed to allow the applicants to access the investigation file and failed to allow them to effectively defend their case;
- the Decision infringes Article 107 (1) TFEU, as the Commission wrongly qualified the measure as State aid;
- the Commission did not correctly interpret Article 107 (1) TFEU when it considered that the resources of Veolia Transport Aéroport de Nîmes, the private airport manager since 2006, constituted State resources;
- the Commission did not properly apply the market economy operated test to the contracts concluded by the airport and Ryanair/AMS, as it refused to take into consideration the comparator analysis; and
- the Commission made a manifest error of assessment and an error of law in finding that the aid to Ryanair and AMS was equal to the cumulated marginal losses of the airport, as calculated by the Commission, instead of the actual benefit to Ryanair and AMS in violation of Articles 107 (1) and 108 (2) TFEU.
Similar challenges have been launched by Ryanair and its marketing subsidiary before the General Court of the EU in the Pau and Angoulême Airports cases.
The Commission is still investigating the funding of La Rochelle, Carcassonne and Paris Beauvais Airports and their commercial contracts concluded with Ryanair and AMS.