Commission Decision (EU) 2023/1683 of 26 July 2022 on the measure SA.26494 2012/C... (32023D1683)
INHALT
Commission Decision (EU) 2023/1683 of 26 July 2022 on the measure SA.26494 2012/C (ex 2012/NN) implemented by France in favour of the operator of La Rochelle airport and certain airlines operating at that airport (notified under document C(2022) 5145) (Only the French text is authentic) (Text with EEA relevance)
- COMMISSION DECISION (EU) 2023/1683
- of 26 July 2022
- on the measure SA.26494 2012/C (ex 2012/NN) implemented by France in favour of the operator of La Rochelle airport and certain airlines operating at that airport
- (notified under document C(2022) 5145)
- (Only the French text is authentic)
- (Text with EEA relevance)
- 1.
- PROCEDURE
- 2.
- LA ROCHELLE-ÎLE DE RÉ AIRPORT
- 3.
- DESCRIPTION OF THE MEASURES
- 3.1.
- Measures in favour of the airport
- 3.1.1.
- Financing of operations
- 3.1.1.1.
- Subsidies for public-remit tasks
- 3.1.1.2.
- Alleged underinvoicing of services supplied by the CCI’s general arm to La Rochelle airport
- 3.1.1.3.
- Alleged overinvoicing of the services supplied by the CCI to Rochefort/Saint-Agnant airport
- 3.1.1.4.
- Repayable advances granted by the CCI’s general arm
- 3.1.1.5.
- Financial contributions from local authorities to promotional measures implemented by La Rochelle airport
- 3.1.2.
- Investment grants
- 3.2
- Measures in favour of the airlines
- 3.2.1.
- Remarks concerning airport charges
- 3.2.2.
- Agreements with the airlines
- 3.2.2.1.
- Agreements signed with Ryanair/AMS
- (a) Airport services agreements concluded by the CCI and Ryanair
- —
- Agreement 1: agreement of 10 December 2003
- —
- Agreement 2: agreement of 1 May 2006
- —
- Agreement 3: agreement of 1 May 2006
- —
- Agreement 4: agreement of 1 February 2007
- —
- Agreement 5: agreement of 13 January 2010
- —
- Agreement 6: amendment No 1 of 1 February 2010 to Agreement 5 of 13 January 2010
- —
- Agreement 7: amendment No 2 of 28 January 2011 to Agreement 5 of 13 January 2010
- (b) Marketing services agreements between the CCI and Ryanair/AMS
- —
- Agreement A: agreement of 1 December 2003 with Ryanair
- —
- Agreement B: agreement of 3 June 2004 with Ryanair
- —
- Agreement C: agreement of 1 April 2006 concluded with AMS concerning the UK
- —
- Agreements D and E: agreement of 1 April 2006 and the amendment thereto of 1 June 2007 concluded with AMS concerning Ireland
- —
- Agreement F: agreement of 21 September 2007 concluded with AMS concerning the UK
- —
- Agreement G: agreement of 17 September 2009 concluded with AMS concerning the UK
- —
- Agreement H and J: agreement of 17 September 2009 and the amendment thereto concluded with AMS concerning Belgium
- —
- Agreement I: agreement of 17 September 2009 with AMS concerning Ireland
- —
- Agreement K: agreement of 25 February 2010 with AMS
- —
- Agreement L: amendment No 1 to Agreement K of 25 February 2010 concerning Ireland
- —
- Agreement M: amendment No 2 to Agreement K of 25 February 2010 concerning Portugal
- —
- Agreement N: amendment No 3 to Agreement K of 25 February 2010 concerning Norway
- 3.2.2.2.
- Agreements with Flybe, Aer Arann and Jet2
- (a) Charges decision of 27 March 2008
- (b) Agreement with Jet2
- (c) Agreements with Flybe and Aer Arann
- 3.2.2.3.
- Agreements with Buzz
- 3.2.2.4.
- Relationship with easyJet
- 4.
- GROUNDS FOR INITIATING THE FORMAL INVESTIGATION PROCEDURE
- 4.1.
- Measures in favour of the airport
- 4.1.1.
- Existence of aid within the meaning of Article 107(1) TFEU
- 4.1.1.1.
- Financing of infrastructure and of public-remit tasks
- 4.1.1.2.
- Financing of operations
- 4.1.2.
- Compatibility of the aid within the meaning of Article 107(3)(c) TFEU
- 4.2.
- Measures in favour of the airlines
- 4.2.1.
- Existence of aid within the meaning of Article 107(1) TFEU
- 4.2.1.1.
- Existence of a selective advantage in the agreements concluded with Ryanair/AMS
- 4.2.1.2.
- Existence of a selective advantage in the agreements concluded with Jet2, Flybe and Aer Arann
- 4.2.1.3.
- Existence of a selective advantage resulting from the amounts paid to Jet2, easyJet and Buzz in exchange for marketing services
- 4.2.2.
- Compatibility of the aid within the meaning of Article 107(3)(c) TFEU
- 5.
- COMMENTS BY INTERESTED PARTIES
- 5.1.
- Comments by the CCI
- —
- Comments on measures in favour of the airport
- —
- Comments on measures in favour of the airlines
- 5.2.
- Comments by Ryanair and AMS
- 5.3.
- Observations submitted by other interested parties
- 6.
- OBSERVATIONS AND COMMENTS BY FRANCE
- 6.1.
- Measures in favour of the airport
- —
- General interest of the airport
- —
- Investment grants
- —
- Financing of operations
- 6.2
- Measures in favour of the airlines
- —
- Discounts on charges for Jet2, Flybe and Aer Arann
- —
- Marketing support measures
- 7.
- ASSESSMENT OF THE MEASURES
- 7.1.
- Measures in favour of the airport
- 7.1.1.
- Existence of aid within the meaning of Article 107(1) TFEU
- 7.1.1.1.
- Concepts of undertaking and economic activity
- (a) General framework
- (b) Special case of subsidies for tasks falling under the public-authority remit
- —
- The non-economic nature of the activities financed
- —
- Strictly limited compensation and non-discriminatory financing
- 7.1.1.2.
- State resources and imputability to the State
- (a) La Rochelle CCI’s general arm
- (b) Local authorities
- (c) The State
- 7.1.1.3.
- Selective advantage
- (a) Concept of service of general economic interest and application of the
- Altmark
- judgment
- —
- Clearly defined public service obligations discharged by the undertaking (first condition)
- —
- Compensation parameters established in advance in an objective and transparent manner (second condition)
- —
- Fair compensation for costs arising from public service obligations (third condition)
- —
- Arrangements for selecting the service provider (fourth condition)
- (b) Assessment of the existence of a selective economic advantage
- (1) Investment grants
- (2) Repayable advances
- (3) Alleged overinvoicing of the services supplied by the CCI to Rochefort Saint-Agnant airport
- (4) Alleged underinvoicing of services supplied by the CCI’s general arm to the airport
- —
- 2001-2005 period
- —
- 2006-2012 period
- (5) Financial contributions from the various local authorities towards the promotional measures implemented by La Rochelle airport
- 7.1.1.4.
- Distortion of competition and effect on competition and trade between Member States
- 7.1.1.5.
- Conclusion on the existence of aid
- 7.1.2.
- Unlawful nature of the State aid
- 7.1.3.
- Compatibility of the aid with the internal market
- 7.1.3.1.
- Compatibility of the investment aid
- (a) Eligibility of investment costs
- (b) The aid facilitates the development of an economic activity
- (c) The infrastructure is necessary and proportionate to the objective
- (d) The infrastructure has satisfactory medium-term prospects for use
- (e) Access to infrastructure in an equal and non-discriminatory manner
- (f) Absence of effect on trade contrary to the common interest
- (g) Necessity and proportionality of the aid
- (h) Conclusion on the compatibility of the investment aid
- 7.1.3.2.
- Compatibility of the operating aid
- –
- The aid facilitates the development of an economic activity
- (b) Need for State intervention and appropriateness of the aid as a policy instrument
- (c) Incentive effect and proportionality of the aid
- (d) Assessment of distortions of competition and effects on trade
- (e) Conclusion on the compatibility of the operating aid
- 7.2.
- Measures in favour of the airlines
- 7.2.1.
- Existence of aid within the meaning of Article 107(1) TFEU
- 7.2.1.1.
- Concept of an undertaking
- 7.2.1.2.
- State resources and imputability to the State
- 7.2.1.3.
- Selective advantage in favour of Buzz and easyJet
- 7.2.1.4.
- Selective advantage in favour of Flybe and Aer Arann conferred by the agreements concluded with the CCI during the period under investigation
- 7.2.1.5.
- Existence of an advantage in favour of Ryanair/AMS and Jet2 in the agreements concluded with the CCI during the period under investigation
- (a) Methodological considerations concerning the method used to apply the prudent operator test
- (1) Joint analysis of the airport services agreements and marketing services agreements
- —
- Set of agreements 1-A
- —
- Agreement B
- —
- Set of agreements 2-3-C-D
- —
- Agreement E
- —
- Agreement F
- —
- Set of agreements G-H-I-J
- —
- Set of agreements 6-K
- —
- Agreement L
- —
- Set of agreements 7-M and agreement N
- —
- Conclusion on the method of assessing jointly the agreements concluded by CCI-Airport with Ryanair/AMS
- —
- Agreement concluded with Jet2
- (2) Choice of analysis method between comparative analysis and incremental profitability analysis
- (3) The potential benefits an MEO might have taken into account when signing the marketing services agreements with airlines
- (4) What time frame would an MEO have chosen to assess the merits of signing an airport services agreement and/or a marketing services agreement?
- (5) Conclusions on the method by which the market economy operator test will be applied
- (b) Methodological considerations concerning the reconstruction of business plans
- (1) Model used for the reconstruction of business plans
- (1) Incremental traffic and number of projected rotations (agreements with Ryanair and AMS)
- (1) Incremental revenues (agreements signed with Ryanair and AMS)
- —
- Aeronautical revenues
- —
- Non-aeronautical revenues
- (1) Incremental costs (agreements signed with Ryanair and AMS)
- Graph 1
- Aeronautical operating costs according to number of passengers
- (1) Sensitivity analysis
- (a) Individual analysis of the sets of agreements concluded with Ryanair/AMS
- (1) Set of agreements 1-A
- —
- Reconstruction by France of the business plan for agreement A
- —
- Reconstruction by the Commission of the business plans for the set of agreements 1-A
- (2) Agreement B
- —
- Reconstruction by France of the business plan for agreement B
- —
- Reconstruction by the Commission of the business plan for agreement B
- (1) Set of agreements 2-3-C-D
- —
- Reconstruction by France of the business plans for agreements C and D
- —
- Reconstruction by the Commission of the business plans for the set of agreements 2-3-C-D
- (1) Agreement E
- —
- Reconstruction by France of the business plan for agreement E
- —
- Reconstruction by the Commission of the business plan for agreement E
- (1) Agreement F
- —
- Reconstruction by France of the business plan for agreement F
- —
- Reconstruction by the Commission of the business plan for agreement F
- (1) Set of agreements G-H-I-J
- —
- Reconstruction by France of the business plan for the set of agreements G-H-I-J
- —
- Reconstruction by the Commission of the business plans for the set of agreements G-H-I-J
- (1) Group of agreements 6-K
- —
- Reconstruction by France of the business plan for agreement K
- —
- Reconstruction by the Commission of the business plan for the set of agreements 6-K
- (1) Agreement L
- —
- Reconstruction by France of the business plan for agreement L
- —
- Reconstruction by the Commission of the business plan for agreement L
- (1) Set of agreements 7-M
- —
- Reconstruction by France of the business plan for agreement M
- —
- Reconstruction by the Commission of the business plan for the set of agreements 7-M
- (1) Agreement N
- —
- Reconstruction by France of the business plan for agreement N
- —
- Reconstruction by the Commission of the business plan for agreement N
- (1) Agreements 4 and 5
- (a) Analysis of the agreement of 4 July 2008 with Jet2
- —
- Methodological approach
- —
- Reconstruction by France of the business plan for the agreement of 4 July 2008
- —
- Reconstruction by the Commission of the business plan for the agreement of 4 July 2008
- (a) Conclusion on the existence of an advantage
- 7.2.1.6.
- Selective nature of the advantage conferred on Ryanair/AMS and Jet2
- 7.2.1.7.
- Distortion of competition and effect on competition and trade between Member States
- 7.2.1.8.
- Conclusion on the existence of aid
- 7.2.2.
- Unlawful nature of the State aid
- 7.2.3.
- Compatibility of the aid with the internal market
- 7.2.3.1.
- Measures pre-dating the entry into force of the 2005 Guidelines
- —
- Contribution to the economic development of a small regional airport through a net increase in traffic on new routes
- —
- The aid is not granted for a route already operated by the same or another airline or a similar route
- —
- The measures are limited in time and involve routes that are likely to become profitable
- —
- The amount of aid is linked to a net increase in traffic
- —
- The aid must have been granted transparently and without discrimination and must not be combined with other types of aid
- 7.2.3.2.
- Measures post-dating the entry into force of the 2005 Guidelines
- —
- Long-term viability and degressiveness (criterion d), absence of a business plan (criterion i), and duration and intensity (criterion f)
- —
- Link with new routes or additional frequencies on existing routes (criterion c)
- —
- Compensation for additional start-up costs (criterion e)
- (198)
- —
- Link with the development of the route (criterion g)
- (199)
- —
- Non-discriminatory allocation (criterion h)
- (201)
- 8.
- CONCLUSIONS
- 9.
- RECOVERY
- Article 1
- Article 2
- Article 3
- Article 4
- Article 5
- Article 6
- Article 7
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