Wizz Air Hungary v Commission (TAROM II; Covid-19) (State aid - Romanian air transport market - Judgment) [2024] EUECJ T-827/22 (06 November 2024)

BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

( State aid - Romanian air transport market - Aid granted by Romania to TAROM in the context of the COVID-19 pandemic - Capital injection - Decision not to raise any objections - Action for annulment - Locus standi - Substantial adverse effect on the applicant’s position on the market in question - Admissibility - Aid to make good the damage caused by an exceptional occurrence - Assessment of the damage - Causal link - Beneficiary’s pre-existing financial difficulties - Principle of non-discrimination - Freedom to provide services - Freedom of establishment - Obligation to state reasons )

Wizz Air Hungary Légiközlekedési Zrt. (Wizz Air Hungary Zrt.), established in Budapest (Hungary), represented by E. Vahida, S. Rating and I.‑G. Metaxas-Maranghidis, lawyers,

Composed of K. Kowalik-Bańczyk, President, G. Hesse (Rapporteur) and B. Ricziová, Judges,

having regard to the measure of organisation of procedure of 9 November 2023 and the replies lodged at the Court Registry by the Commission on 15 November 2023 and by the applicant on 24 November 2023,

1 By its action under Article 263 TFEU, the applicant, Wizz Air Hungary Légiközlekedési Zrt. (Wizz Air Hungary Zrt.), seeks annulment of Commission Decision C(2020) 2934 final of 29 April 2022 on State aid SA.63360 (2021/N) – Romania COVID-19 – Aid to TAROM – Damage compensation II (‘the contested decision’).

2 Compania Nationala de Transporturi Aeriene Romane ‘TAROM SA’ (‘TAROM’) is a Romanian airline operating from a single airport hub, located at OTP Bucharest Henri Coandă International Airport (Romania), in which the Romanian State has a holding of 97.22%.

3 On 24 February 2020, by Decision C(2020) 1160 final on State aid SA.56244 (2020/N) – Romania – Rescue aid to TAROM (‘the decision on rescue aid to TAROM’), the European Commission authorised rescue aid to TAROM consisting of a loan repayable after six months.

4 On 2 October 2020, by Decision C(2020) 6910 final on State aid SA.56810 (2020/N) – Romania – COVID-19: Aid to TAROM, the Commission authorised aid to TAROM, based on Article 107(2)(b) TFEU, intended to compensate it for the damage directly suffered, during the period from 16 March to 30 June 2020, on account of the travel restrictions and other lockdown measures aimed at containing the COVID-19 pandemic.

5 On 5 July 2021, after being notified by the Romanian authorities of a restructuring plan, the Commission decided to initiate a formal procedure concerning State aid SA.59344 (2021/C) (ex 2021/N) – Romania – Restructuring aid to TAROM.

6 On 3 February 2022, Romania notified to the Commission, pursuant to Article 108(3) TFEU, an individual aid measure in favour of TAROM, of EUR 1 908 872, granted in the form of a capital injection and financed from the general budget of Romania (‘the measure at issue’).

7 The measure at issue is based on Article 107(2)(b) TFEU and is intended to compensate TAROM for the damage directly caused on 14 specifically defined international routes (‘the eligible routes’) during specific periods (‘the compensation periods’) during the relevant period, namely the period between 1 July and 31 December 2020, owing to the travel restrictions linked to the COVID-19 pandemic.

8 On 29 April 2022, the Commission, without initiating the formal investigation procedure provided for in Article 108(2) TFEU, adopted the contested decision, by which it found that the measure at issue constituted State aid within the meaning of Article 107(1) TFEU and that it was compatible with the internal market pursuant to Article 107(2)(b) TFEU.

11 In support of the action, the applicant raises four pleas in law, alleging, first, that the Commission misapplied Article 107(2)(b) TFEU and made ‘manifest’ errors of assessment in its review of the proportionality of the measure at issue; second, breach of the principles of non-discrimination, the freedom to provide services and the freedom of establishment; third, that the Commission ought to have initiated the formal investigation procedure; and, fourth, breach of the obligation to state reasons.

12 On 9 November 2023, the Court, by way of a measure of organisation of procedure, invited the parties to submit written observations on the inferences to be drawn for the present case from the judgments of 28 September 2023, Ryanair v Commission (C‑320/21 P, EU:C:2023:712), and of 28 September 2023, Ryanair v Commission (C‑321/21 P, EU:C:2023:713). In response to that measure of organisation of procedure, the applicant stated that it was withdrawing one of the arguments put forward in the first plea, alleging failure to assess the damage caused by the COVID-19 pandemic to airlines other than TAROM (see paragraph 104 below). It otherwise maintained its pleas in law and arguments.

13 In the first place, the applicant submits that it is an interested party for the purposes of Article 108(2) TFEU and Article 1(h) 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) and that, accordingly, it has standing to bring proceedings in order to safeguard its procedural rights. In the second place, it submits that its competitive position on the market was substantially affected by the measure at issue, that it is directly concerned by that measure and that it is therefore also entitled to challenge the contested decision on the merits.

15 It should be borne in mind that, where the Commission adopts a decision not to raise objections on the basis of Article 4(3) of Regulation 2015/1589, as in the present case, it not only declares that the measures concerned are compatible with the internal market, but also, by implication, it refuses to initiate the formal investigation procedure provided for in Article 108(2) TFEU and Article 6(1) of that regulation (see judgment of 27 October 2011, Austria v Scheucher-Fleisch and Others, C‑47/10 P, EU:C:2011:698, paragraph 42 and the case-law cited). If, following the preliminary examination, it finds that the measure notified raises doubts as to its compatibility with the internal market, the Commission is required to adopt, on the basis of Article 4(4) of Regulation 2015/1589, a decision initiating the formal investigation procedure under Article 108(2) TFEU and Article 6(1) of that regulation. Under the latter provision, such a decision is to call upon the Member State concerned and upon other interested parties to submit comments within a prescribed period which must not as a rule exceed one month (judgment of 24 May 2011, Commission v Kronoply and Kronotex, C‑83/09 P, EU:C:2011:341, paragraph 46).

16 In the present case, the Commission decided, following a preliminary investigation, not to raise objections to the measure at issue on the ground that it was compatible with the internal market, under Article 107(2)(b) TFEU. Since the formal investigation procedure was not initiated, the interested parties, which could have submitted comments during that stage, were denied that possibility. In order to remedy this, they are entitled to challenge before the EU Courts the Commission’s decision not to initiate the formal investigation procedure. Thus, an action brought by a party concerned for the purposes of Article 108(2) TFEU for annulment of the decision not to raise objections would be admissible in so far as that party was seeking to safeguard the procedural rights available to it under that latter provision (see judgment of 18 November 2010, NDSHT v Commission, C‑322/09 P, EU:C:2010:701, paragraph 56 and the case-law cited).

17 In the light of Article 1(h) of Regulation 2015/1589, an undertaking competing with the undertaking that is the beneficiary of an aid measure is an ‘interested party’ for the purposes of Article 108(2) TFEU (judgment of 3 September 2020, Vereniging tot Behoud van Natuurmonumenten in Nederland and Others v Commission, C‑817/18 P, EU:C:2020:637, paragraph 50; see also, to that effect, judgment of 18 November 2010, NDSHT v Commission, C‑322/09 P, EU:C:2010:701, paragraph 59).

18 In the present case, it is not disputed that the applicant is a competitor of TAROM and that, accordingly, it is an interested party within the meaning of Article 1(h) of Regulation 2015/1589, having standing to bring proceedings to safeguard the procedural rights it derives from Article 108(2) TFEU.

19 As to the applicant’s standing to challenge the contested decision on the merits, it should be borne in mind that the admissibility of an action brought by a natural or legal person against an act which is not addressed to them, in accordance with the fourth paragraph of Article 263 TFEU, is subject to the condition that they be accorded standing to bring proceedings, which arises in two situations. First, such proceedings may be instituted if the act is of direct and individual concern to them. Second, such persons may bring proceedings against a regulatory act not entailing implementing measures if that act is of direct concern to them (judgments of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraphs 59 and 91, and of 13 March 2018, Industrias Químicas del Vallés v Commission, C‑244/16 P, EU:C:2018:177, paragraph 39).

20 Given that the contested decision, which was addressed to Romania, does not constitute a regulatory act under the fourth paragraph of Article 263 TFEU, since it is not an act of general application (see, to that effect, judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 56), the Court must determine whether that decision is of direct and individual concern to the applicant, within the meaning of that provision.

21 In that regard, it is settled case-law that persons other than those to whom a decision is addressed may claim to be individually concerned only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and, by virtue of those factors, distinguishes them individually just as in the case of the person addressed (judgments of 15 July 1963, Plaumann v Commission, 25/62, EU:C:1963:17, p. 223; of 28 January 1986, Cofaz and Others v Commission, 169/84, EU:C:1986:42, paragraph 22; and of 22 November 2007, Sniace v Commission, C‑260/05 P, EU:C:2007:700, paragraph 53).

22 Accordingly, where an applicant calls into question the merits of a decision appraising aid taken on the basis of Article 108(3) TFEU or after the formal investigation procedure, the mere fact that it may be regarded as ‘concerned’ within the meaning of Article 108(2) TFEU cannot suffice to render the action admissible. It must then demonstrate that it has a particular status, for the purposes of the case-law cited in in paragraph 19 above. That applies in particular where the applicant’s position on the market concerned is substantially affected by the aid to which the decision at issue relates (see judgment of 15 July 2021, Deutsche Lufthansa v Commission, C‑453/19 P, EU:C:2021:608, paragraph 37 and the case-law cited).

23 In that regard, the Court of Justice has held that demonstration by the applicant of a substantial effect on its market position does not entail a definitive ruling on the competitive relationship between the applicant and the undertakings in receipt of aid, but requires only that the applicant adduce pertinent reasons to show that the Commission’s decision may harm its legitimate interests by substantially affecting its position on the market in question (see judgment of 15 July 2021, Deutsche Lufthansa v Commission, C‑453/19 P, EU:C:2021:608, paragraph 57 and the case-law cited).

24 It is thus apparent from the case-law of the Court of Justice that the substantial adverse effect on the applicant’s competitive position on the market in question results not from a detailed analysis of the various competitive relationships on that market, allowing the extent of the adverse effect on its competitive position to be established specifically, but, in principle, from a prima facie finding that the grant of the measure covered by the Commission’s decision leads to a substantial adverse effect on that position (see judgment of 15 July 2021, Deutsche Lufthansa v Commission, C‑453/19 P, EU:C:2021:608, paragraph 58 and the case-law cited).

25 It follows that that condition may be satisfied if the applicant adduces evidence to show that the measure concerned is liable to have a substantial adverse effect on its position on the market in question (see judgment of 15 July 2021, Deutsche Lufthansa v Commission, C‑453/19 P, EU:C:2021:608, paragraph 59 and the case-law cited).

26 As regards the factors accepted by the case-law for the purpose of establishing a substantial adverse effect of that kind, it should be borne in mind that the mere fact that an act may exercise an influence on the competitive relationships existing on the relevant market and that the undertaking concerned is in a competitive relationship with the beneficiary of that act cannot suffice for that undertaking to be regarded as being individually concerned by that act. Therefore, an undertaking cannot rely solely on its status as a competitor of the undertaking in receipt of aid (see judgment of 15 July 2021, Deutsche Lufthansa v Commission, C‑453/19 P, EU:C:2021:608, paragraph 60 and the case-law cited).

27 Demonstrating a substantial adverse effect on a competitor’s position on the market cannot simply be a matter of the existence of certain factors indicating a decline in the applicant’s commercial or financial performance, such as a significant decline in turnover, appreciable financial losses or a significant reduction in market share following the grant of the aid in question. The grant of State aid can also have an adverse effect on the competitive situation of an operator in other ways, in particular by causing the loss of an opportunity to make a profit or a less favourable development than would have been the case without such aid (judgment of 15 July 2021, Deutsche Lufthansa v Commission, C‑453/19 P, EU:C:2021:608, paragraph 61).

28 Furthermore, the case-law does not require that the applicant provide information as to the size or geographical scope of the markets at issue, or as to its market shares and those of the beneficiary of the measure at issue or any competitors on those markets (see, to that effect, judgment of 15 July 2021, Deutsche Lufthansa v Commission, C‑453/19 P, EU:C:2021:608, paragraph 65).

29 It is by reference to those principles that it is necessary to examine whether the applicant has adduced evidence to demonstrate that the measure at issue was liable to have a substantial adverse effect on its position on the market concerned.

30 In the present case, the applicant maintains, in essence, that it was the leading airline on the Romanian market, having regard to its market share in 2019. It is the closest, most direct and largest competitor of TAROM on that market.

31 In that regard, first, the applicant claims that its share of seat capacity on the Romanian market was 40.8% in 2019, while TAROM’s share was 15.3% in that year.

32 Second, the applicant submits that it was in direct competition with TAROM on a number of ‘point of origin/point of destination’ (‘O&D’) city pair routes, namely a total of eight city pairs in 2020 and eleven in 2022, operated on average by only one other airline and which were particularly important from an economic viewpoint. Furthermore, it claims that the routes on which it was in direct competition with TAROM were more economically important than those which TAROM shared with other airlines.

34 Third, the applicant maintains that, before the outbreak of the COVID-19 pandemic and the granting of the measure at issue, it had embarked on a considerable expansion on the Romanian market, which is not disputed by the Commission. In that regard, the applicant submits that it operated 159 routes to or from Romania in 2019 and that it currently operates 224. In addition, its growth has been constant over the last 10 years and significantly higher than TAROM’s. Between 2010 and 2019, the volume of TAROM’s traffic in Romania increased by an average of 4.5 million additional arriving and departing seats, whereas the increase in the number of seats for the applicant was, on average, 5.6 million arriving and departing seats, or 1.24 times more than the volume of TAROM. In addition, the applicant submits that it has a fleet of 175 Airbus aircraft of the A320 family and had expected to take delivery of a significant number of aircraft until late 2029 in order to increase its fleet, which would allow it to open new routes and new bases, particularly in Romania.

35 As a result of the grant of the measure at issue, the applicant is in a disadvantageous situation by comparison with TAROM, since, unlike that airline, it did not benefit from aid that would have contributed to enabling it to attenuate the impact of the COVID-19 pandemic and to resume its activities in Romania. In the applicant’s submission, the measure at issue enabled TAROM to remain on the market as a subsidised competitor by avoiding the negative consequences of the COVID-19 pandemic.

36 The factors set out in paragraphs 30 to 35 above, taken together, support the conclusion that the applicant has demonstrated that it was TAROM’s main competitor on a number of O&D routes on the Romanian market, that it was in direct competition with TAROM on a number of O&D routes and that it had embarked on a considerable expansion on the Romanian market. Were it not for the measure at issue, TAROM’s unfavourable financial position would have worsened and its position on the market would have further deteriorated. That would have put the applicant in a position likely to enable it, in the absence of that measure, to gain market share to the detriment of TAROM.

37 Those factors, taken together, show that the grant of the measure at issue was liable, prima facie, to have a substantial adverse effect on the applicant’s competitive position on the market, by giving rise, inter alia, to a loss of opportunity to make a profit or a less favourable development than would have been the case without such a measure.

38 Accordingly, it must be concluded that the applicant has demonstrated to the requisite legal standard that the measure at issue was capable of substantially affecting its competitive position on the market and that it was therefore individually concerned by the contested decision.

39 As to whether the applicant is directly concerned by the contested decision, it must be borne in mind that, according to settled case-law, a competitor of a beneficiary of aid is directly concerned by a Commission decision authorising a Member State to pay the aid when there is no doubt as to that State’s intention to do so (see, to that effect, judgments of 5 May 1998, Dreyfus v Commission, C‑386/96 P, EU:C:1998:193, paragraphs 43 and 44, and of 15 September 2016, Ferracci v Commission, T‑219/13, EU:T:2016:485, paragraph 44 and the case-law cited), as is the case here.

40 The applicant is therefore entitled to challenge the contested decision on the merits.

1. The first plea: the Commission misapplied Article 107(2)(b) TFEU and made ‘manifest’ errors of assessment when examining the proportionality of the measure at issue

41 As a preliminary point, it should be borne in mind that, under Article 107(2)(b) TFEU, aid to make good the damage caused by natural disasters or exceptional occurrences is to be compatible with the internal market. In that regard, it is clear from the case-law that only economic damage caused directly by natural disasters or exceptional occurrences may be compensated for under that provision (judgment of 23 February 2006, Atzeni and Others, C‑346/03 and C‑529/03, EU:C:2006:130, paragraph 79).

42 In the present case, the applicant does not dispute either the Commission’s assessment in the contested decision that the COVID-19 pandemic had to be regarded as an ‘exceptional occurrence’ within the meaning of Article 107(2)(b) TFEU, or the finding that the travel restrictions that affected the eligible routes during the relevant period could be a direct cause of damage to TAROM.

43 On the other hand, the applicant claims, in essence, that the contested decision infringes Article 107(2) TFEU on the ground, first, that the assessment of the damage suffered by TAROM is incorrect in a number of respects and, second, that the measure at issue gives rise to overcompensation.

(a) The first part of the first plea: the Commission made ‘manifest’ errors of assessment as regards the damage eligible for compensation

45 The first part of the first plea, alleging that the Commission made ‘manifest’ errors of assessment as regards the damage eligible for compensation, is divided into two complaints, alleging, first, that the Commission erred in relying on a counterfactual scenario according to which TAROM, in the absence of the travel restrictions linked to the COVID-19 pandemic, would have been able to record the same financial results as in 2019 and, second, that Romania’s commitment to carry out an ex post analysis casts doubt on the correctness of the damage assessment.

(1) The first complaint, alleging that the Commission erred in relying on a counterfactual scenario according to which TAROM, in the absence of the travel restrictions linked to the COVID-19 pandemic, would have been able to record the same financial results as in 2019

46 As a preliminary point, it should be observed that, in the contested decision, in order to calculate the amount of damage suffered by TAROM on the eligible routes during the relevant period as a result of the travel restrictions linked to the COVID-19 pandemic, the Commission compared, on each of the routes in question, on the one hand, TAROM’s actual results during the relevant period and, on the other, TAROM’s results in a counterfactual scenario, without travel restrictions linked to the COVID-19 pandemic. The total amount of the damage suffered by TAROM corresponds to the difference between those two results, calculated on the basis of TAROM’s revenues and its fixed and variable costs on each of the routes concerned.

47 The applicant refers in the application to eight errors affecting the counterfactual scenario in question, which are examined in turn below.

48 In the first place, the applicant submits that, in establishing the counterfactual scenario, the Commission erred in using TAROM’s financial results for 2019 instead of the forward-looking data available to it. In the applicant’s submission, the counterfactual scenario on which the Commission relied in its decision proceeded from the principle that, in the absence of the travel restrictions linked to the COVID-19 pandemic, TAROM’s profitability on each of the eligible routes during the relevant period would have been the same as its profitability on each of the routes concerned over the period from July to December 2019. However, TAROM’s recurring losses and the financial losses which it had experienced for decades show that that scenario was not realistic. The applicant emphasises, in particular, that TAROM has made a loss every year since 2008 and that its losses increased significantly during the period from 2017 to 2019.

49 The applicant refers to a number of items of evidence in that regard. First, it maintains that, according to TAROM’s financial statements, both its depreciation and amortisation costs and its interest expenses had increased between 2019 and 2020. Next, it submits that, having regard to TAROM’s pre-existing financial difficulties, the Commission should have drawn a distinction between TAROM’s losses attributable to the COVID-19 pandemic and those attributable to its business model. Last, the applicant claims that, in view of the various restructuring plans concerning TAROM that Romania had announced during the preceding decade, the Commission had at its disposal short- and mid-term forecasts of the company’s revenues and costs. Those forecasts, in the applicant’s submission, were more appropriate than TAROM’s financial results in 2019. A diagram produced by the applicant shows that, in taking TAROM’s 2019 financial results into account rather than its financial forecasts made before the start of the COVID-19 pandemic, the Commission overestimated the damage suffered by that company.

50 In that regard, as the Commission rightly states in its defence, TAROM’s actual results during the period from 1 July to 31 December 2019 on the eligible routes, which the Commission took into account in preparing the counterfactual scenario, were the most recent historical data recorded before the onset of the COVID-19 pandemic. As a general rule, it is appropriate to take into account the most recent historical data, unless the applicant demonstrates, on the basis of objective and consistent evidence, that such data are unreliable (judgment of 18 October 2023, Ryanair v Commission (Alitalia II; COVID-19), T‑333/21, not published, EU:T:2023:646, paragraph 54).

51 In the present case, the results recorded by TAROM in the period from 1 July to 31 December 2019 reflected a period of normal activity for that company, in so far as there had not been any extraordinary circumstances, such as a pandemic or a change in the airline’s business model (judgment of 18 October 2023, Wizz Air Hungary v Commission (TAROM; COVID-19), T‑332/21, not published, EU:T:2023:645, paragraph 48).

52 Conversely, the references which the applicant makes to TAROM’s overall financial statements do not demonstrate that the data taken into account by the Commission were not reliable. In fact, the data used by the Commission in the contested decision related specifically to the results recorded by TAROM on the routes concerned during the period from 1 July to 31 December 2019, which is justified by the fact that the measure at issue was intended to compensate TAROM specifically for the damage suffered on those routes and during the relevant period as a result of the travel restrictions linked to the COVID-19 pandemic. As the Commission asserts, the profitability of a single route operated by an airline may differ significantly from that company’s overall level of profitability.

53 In addition and in any event, as regards the years 2017 to 2019, the data taken from the decision on rescue aid to TAROM to which the applicant refers show, as the Commission states in its pleadings, that in spite of TAROM’s continued negative results, its annual results remained relatively consistent between 2017 and 2019.

54 As regards, more particularly, the costs for depreciation and amortisation and interest expenses, which increased between 2019 and 2020, even if the data produced in that respect by the applicant were correct, they would be unable to establish a clear trend in the development of TAROM’s financial results of such a kind as to cast doubt on the reliability of the most recent historical data for the preparation of the counterfactual scenario.

55 Furthermore, as regards the applicant’s assertion that the Commission did not sufficiently examine TAROM’s losses attributable to the COVID-19 pandemic in order to distinguish them from the losses attributable to its business model, it is apparent from the contested decision that the methodology used by the Romanian authorities to calculate the damage suffered by TAROM, described in paragraph 46 above, takes into consideration only TAROM’s revenues and costs that were directly linked to its passenger air transport activities. Those revenues and costs had thus been directly affected by the travel restrictions linked to the COVID-19 pandemic on the routes concerned.

56 In its written pleadings, the applicant merely takes issue with the Commission in a general way for not having carried out a more thorough investigation in that respect, but does not identify any specific cost item that, in its view, should have been excluded from the calculation of the damage suffered by TAROM, or treated differently on the ground that that cost was caused by TAROM’s pre-existing difficulties. That assertion by the applicant is therefore not of such a kind as to call into question the use of the most recent historical data in preparing the counterfactual scenario (see, to that effect, judgment of 18 October 2023, Wizz Air Hungary v Commission (TAROM; COVID-19), T‑332/21, not published, EU:T:2023:645, paragraphs 84 to 86).

57 Last, as regards the assertion that the use of financial forecasts drawn up in the context of the restructuring plans relating to TAROM was more appropriate when preparing the counterfactual scenario, it is sufficient to state that, in the absence of evidence to show that the use of the most recent historical data relating to the period from 1 July to 31 December 2019 was not reliable for calculating the damage suffered by TAROM on the routes concerned during the relevant period, those historical data must be regarded as a more appropriate reference point for examining the counterfactual scenario than provisional estimates of TAROM’s future results on those routes (see, to that effect, judgment of 18 October 2023, Wizz Air Hungary v Commission (TAROM; COVID-19), T‑332/21, not published, EU:T:2023:645, paragraph 61).

58 It follows from the foregoing that the applicant has not established that the Commission was wrong to take TAROM’s actual results on the routes concerned during the period from 1 July to 31 December 2019 into consideration when examining the counterfactual scenario or that such a methodology entailed an overestimation of the damage suffered by TAROM on the routes concerned. The contested decision is therefore not vitiated by an error of assessment in that respect.

59 In the second place, the applicant claims that when establishing the counterfactual scenario the choice of the method of allocating the fixed costs could significantly influence the assessment of the damage suffered by TAROM. In the applicant’s submission, the Commission agreed in TAROM’s case that the allocation of the fixed costs should be based on its turnover on each route in comparison with total turnover. However, the applicant maintains that in order to ensure that TAROM would not be overcompensated the Commission ought to have investigated whether the allocation of fixed costs on the basis of alternative methods – taking account, for example, of passenger numbers, aircraft movements or available seat-kilometres – would have resulted in a different estimate.

60 As the Commission maintains in its pleadings, it explained in paragraph 113 of the contested decision that the damage suffered by TAROM as a result of the discontinuation or drastic reduction of the air transport services provided should include a portion of the fixed costs incurred by that company for the corresponding compensation periods during the relevant period, to which the services on the routes in question would have contributed in the absence of the exceptional occurrence which caused the travel restrictions. According to that paragraph, fixed costs may vary in the event of large variations in output, namely in the number of passengers, as is the case for TAROM, even though any variation of that type is likely to be less than proportional with respect to output. The Commission thus considered that the linear adjustment of fixed costs submitted by TAROM was consistent with the evidence of the relation between fixed costs and passenger numbers specific to TAROM, on the basis of the observation of actual fixed costs and passengers in 2019 and in 2020. That adjustment took account of the less than proportional variation in fixed costs in response to a large reduction in passenger volumes and the associated economies of scale that characterise TAROM’s business model, and also of the allocation of fixed costs on the basis of the 2019 route-by-route data.

61 In that regard, it is not disputed that every route, irrespective of whether it was operated during the relevant period, incurs fixed costs, such as aircraft maintenance costs and payroll, which is why those costs are included in the calculation of the damage (see, to that effect, judgment of 18 October 2023, Wizz Air Hungary v Commission (TAROM; COVID-19), T‑332/21, not published, EU:T:2023:645, paragraphs 97 and 98).

62 In the present case, the applicant in essence merely takes issue with the Commission for not having compared the result of the fixed-costs allocation method chosen by Romania, which the Commission applied in the contested decision, with the result of alternative methods. Contrary to the applicant’s contention, however, the Commission was entitled to assess the fixed-costs allocation method proposed by Romania in the light of the empirical data available to it, as it did, without being required to compare the result of that method with that of any other methods. In fact, the applicant presents no evidence to support the view that the method applied by the Commission was not reliable. The applicant’s criticism of the Commission is thus too general and insufficiently substantiated to succeed.

63 It follows that the applicant’s argument relating to the choice of the fixed-costs allocation method in the preparation of the counterfactual scenario must be rejected, such that the contested decision is not vitiated by an error of assessment in that respect.

64 In the third place, the applicant claims that three main sources of costs were likely to cause TAROM’s financial situation to deteriorate in the relevant period in comparison with 2019, namely TAROM’s fleet, fuel prices and competition from low-cost airlines. However, that deterioration of TAROM’s financial situation is not reflected in the counterfactual scenario. The applicant maintains that, having regard in particular to the information available to it in the context of the rescue aid to TAROM, the Commission was not entitled to consider that the latter’s financial results would remain stable between 2019 and 2020 and ought at least to have substantiated that point.

65 In that regard, it should be observed that in its examination of the counterfactual scenario without travel restrictions, the Commission took as its starting point TAROM’s actual results during the period from 1 July to 31 December 2019 on the eligible routes, which were then adjusted. The Commission examined the costs borne by TAROM on each of the eligible routes and took as a starting point the actual maintenance costs of its fleet and its actual fuel costs during the period from 1 July to 31 December 2019.

66 First, the applicant argues that the Commission, in the decision on rescue aid to TAROM (see paragraph 3 above), recognises that TAROM has an ageing and non-homogeneous fleet that has contributed to the deterioration of its financial situation. TAROM had, in particular, 25 aircraft of six different types. The average age of its fleet was 15 years, which was three times the average age of the applicant’s fleet. In the absence of the COVID-19 pandemic in 2020, TAROM would therefore have been faced with high maintenance costs during the relevant period. The applicant also relies on documents showing that the maintenance costs of older aircraft are generally higher.

67 In that regard, it is not disputed that the maintenance costs of TAROM’s fleet could have varied between 2019 and 2020. By contrast, it is not apparent from the information produced on that matter that maintenance costs for aircraft aged around 15 years increase significantly during each additional year of their useful life. Consequently, even though the maintenance costs of TAROM’s fleet would have varied between 2019 and 2020, it has not been shown that those costs would have changed significantly.

68 In addition, the applicant adds in the reply that according to International Air Transport Association (IATA) data from December 2019, aircraft operating expenses increased by 3.8% in 2019 and were expected to increase by 3.5% in 2020. However, it should be observed that the concept of aircraft ‘operating costs’ is broader than that of ‘maintenance costs’ and that the applicant has failed to specify the correlation between those data and its argument relating to maintenance costs (judgment of 18 October 2023, Wizz Air Hungary v Commission (TAROM; COVID-19), T‑332/21, not published, EU:T:2023:645, paragraph 69).

69 Furthermore, the fact, raised by the applicant in the reply, that, in Commission Decision C(2020) 5830 final of 20 August 2020 on State aid SA.57026 (2020/N) – Romania – COVID-19: Aid to Blue Air, the Commission took into account, in the calculation of the damage suffered by the airline Blue Air, the circumstance that the reorganisation of Blue Air’s fleet resulted, inter alia, in a significant increase in maintenance costs in 2020 compared to 2019 is irrelevant in this case. As the Commission rightly argues, TAROM did not carry out a fleet reorganisation in 2019 similar to the one carried out by Blue Air in the same year (judgment of 18 October 2023, Wizz Air Hungary v Commission (TAROM; COVID-19), T‑332/21, not published, EU:T:2023:645, paragraph 70).

70 Second, in the applicant’s submission, fuel costs vary significantly from year to year and the Commission therefore could not assume that they would remain stable between 2019 and 2020.

71 In that regard, the applicant refers to data showing the change in the prices of jet fuel and crude oil during the period from June 2014 to June 2021, from which it is apparent, first, that fuel prices fluctuated very significantly during that period, with sharp rises and falls at short intervals, and, second, that those prices were significantly higher in 2019 than in 2020.

72 The applicant also refers to its annual report, in which the increase in fuel prices was estimated to be 7% in 2020 in comparison with 2019 and to the forecasts of the United States Energy Information Administration (EIA) of January 2020, according to which fuel prices were to increase by 4.2% in comparison with 2019.

73 For its part, the Commission, in the defence, cited an extract from an IATA press release of December 2019 according to which, on that date, IATA had forecast that jet fuel prices would fall in 2020 in comparison with 2019.

74 It is apparent from the evidence referred to in paragraphs 71 to 73 above that the forecasts made before the outbreak of the COVID-19 pandemic concerning changes in jet fuel prices in 2020 were not all consistent, with certain forecasts expecting an increase in those prices, whereas others forecast a decrease. In reality, those differences rather tend to demonstrate that there was no certainty as to how the price of jet fuel would change during the relevant period. Furthermore, in view of the highly volatile nature of those prices, as shown by the data submitted by the applicant itself, the Commission cannot be criticised for having failed to anticipate how they would change (see, to that effect, judgment of 18 October 2023, Wizz Air Hungary v Commission (TAROM; COVID-19), T‑332/21, not published, EU:T:2023:645, paragraph 75).

75 The applicant has therefore not put forward elements such as to demonstrate that, in the absence of travel restrictions linked to the COVID-19 pandemic, the maintenance costs of TAROM’s fleet and its fuel costs would have been higher during the period at issue in 2020 than during the same period in 2019. It follows that the applicant has not shown that the Commission erred in relying on the maintenance costs of TAROM’s fleet and on its fuel costs during the period from 1 July to 31 December 2019 in its calculation of the damage suffered by that company.

76 Third, as regards the applicant’s argument that the Commission should have taken into account, in its examination of the counterfactual scenario, the intensification of competition between low-cost airlines, it should be pointed out, as the Commission observes, that the applicant has not quantified the losses caused to TAROM by that alleged increase in competition between low-cost airlines. That argument is therefore insufficiently substantiated and too speculative to succeed (see, to that effect, judgment of 18 October 2023, Wizz Air Hungary v Commission (TAROM; COVID-19), T‑332/21, not published, EU:T:2023:645, paragraphs 77 and 78).

77 It follows that the applicant’s argument relating to the three principal sources of costs likely to cause TAROM’s financial situation to deteriorate during the relevant period in comparison with 2019 must be rejected, such that the contested decision is not vitiated by an error of assessment in that respect.

78 In the fourth place, the applicant claims that TAROM’s most recent difficulties, that led to the rescue aid, were not taken into consideration in the counterfactual scenario applied by the Commission. In particular, the applicant maintains that the rescue aid authorised by the Commission in early 2020 could not cover TAROM’s liquidity needs beyond August 2020. Thus, in the applicant’s submission, TAROM’s financial situation would have deteriorated after that date, such that the Commission could not automatically regard its 2019 financial results as the most appropriate benchmark for assessing the damage suffered by that company. In addition, since that rescue aid did not allow TAROM’s difficulties to be resolved, the applicant maintains that, in the absence of the COVID-19 pandemic, TAROM would have either had to reduce the scale of its operations or change its business model. Either of those cases would have resulted in a more pessimistic counterfactual scenario, which would have considerably reduced the estimate of the damage suffered by TAROM.

79 By that argument the applicant is in reality again disputing the use of TAROM’s financial results in 2019 when preparing he counterfactual scenario. However, the applicant’s assertion that after August 2020, in the absence of the COVID-19 pandemic, TAROM would have been required either to reduce the scale of its operations or change its business model is based solely on the fact that the rescue aid did not cover the period after that date. That argument is therefore speculative.

80 Furthermore, there is nothing in either the decision on rescue aid to TAROM or the contested decision to suggest that, at the time when those decisions were taken, TAROM was going to reduce the scale of its operations or change its business model after August 2020. Indeed the Commission confirms in its written pleadings that neither the liquidity plan nor the other information available to it indicated that TAROM had any intention of completely changing its business model or of significantly restructuring its operations in 2020. Furthermore, as the Commission states and as is apparent from the contested decision, TAROM intended to operate the eligible routes throughout the relevant period and those routes were cancelled solely because of the travel restrictions linked to the COVID-19 pandemic.

81 It follows that the applicant’s argument concerning the alleged failure to take TAROM’s difficulties that gave rise to the rescue aid into account in the counterfactual scenario must be rejected, with the result that the contested decision is not vitiated by an error of assessment in that respect.

82 In the fifth place, the applicant claims, in essence, that the Commission failed to ascertain whether TAROM had taken reasonable steps to reduce the damage suffered. The measures taken by TAROM referred to in the contested decision are not as deep and structural as those which other airlines were compelled to take during the crisis caused by the COVID-19 pandemic. There is no proof that the costs borne by TAROM during that period corresponded to a maximum mitigation of costs by that company. In the applicant’s submission, the ‘avoided costs’ defined in the contested decision do not reflect all the costs that could have been avoided by TAROM.

83 As the applicant acknowledges, paragraph 56 of the contested decision states that, in order to reduce costs and therefore minimise losses, TAROM decided to cancel flights on the routes on which it estimated that demand was insufficient to cover its losses and on which it considered that cancelling them would result in a smaller loss than operating them. It thus reduced its losses by around EUR 6.73 million. In addition, TAROM decided to eliminate on-board catering services and focused on cargo flights in order to generate revenues (worth around EUR 15.16 million during the relevant period). It also applied technical leave, reduced its working schedule to reduce staff costs during the relevant period (deemed to have generated savings of around EUR 7.8 million) and closed ticketing agencies.

84 It is thus apparent from paragraph 56 of the contested decision that TAROM did in fact take measures to reduce costs and minimise losses. The fact, if it were established, that, as the applicant states, other airlines were required or chose to take other measures, that were sometimes deeper and more structural, to reduce their costs and minimise their losses does not show that the Commission overestimated the damage suffered by TAROM.

85 In that regard, it should be borne in mind that only aid that is in excess of the damage incurred by its beneficiaries does not fall within the scope of Article 107(2)(b) TFEU (see, to that effect, judgment of 18 October 2023, Wizz Air Hungary v Commission (TAROM; COVID-19), T‑332/21, not published, EU:T:2023:645, paragraph 80). Although the measure at issue must not bring about an improvement in TAROM’s financial situation going beyond what is necessary to attain the aim provided for in Article 107(2)(b) TFEU, that provision does not require a ‘maximum mitigation of costs’ by the beneficiary.

86 It should be observed that the measure at issue aims to compensate TAROM only for the damage which it suffered on the routes in question during the relevant period as a result of the travel restrictions linked to the COVID-19 pandemic. For that purpose, in the contested decision, the Commission explained that the route-by-route analysis had ensured that the measure at issue covered only the specific routes affected by the travel restrictions and excluded routes where no restrictions applied and routes cancelled for commercial reasons. Furthermore, the measure at issue draws a distinction between passenger loss due to the travel restrictions linked to COVID-19 and the number of passengers that would have been lost irrespective of those restrictions. In order to evaluate the damage, moreover, both the negative and the positive impact of the travel restrictions on TAROM’s fixed and variable costs were taken into account. The Commission also took note of the measures taken by TAROM to reduce its costs and mitigate its losses.

87 In order to ensure the proportionality of the measure at issue, the Commission examined, in particular, the factors referred to in paragraph 86 above and checked the data and calculations presented by the Romanian authorities. It concluded that the method submitted by Romania made it possible to calculate as precisely as possible the damage suffered by TAROM that was directly caused by the travel restrictions on the eligible routes during the compensation periods.

88 The Commission was satisfied, moreover, by the fact that Romania would put in place a number of safeguards to avoid any overcompensation. The benefit of the aid would thus be excluded in the event that TAROM was responsible for the damage suffered or had not carried out its activities with due diligence or in compliance with the applicable legislation or failed to take appropriate measures to mitigate the damage.

89 In those circumstances, since the Commission duly took the cost-reduction measures taken by TAROM into account when examining the proportionality of the measure at issue and ensured that the damage had been calculated as precisely as possible, it cannot be asserted that it failed to ascertain whether TAROM had taken all reasonable steps to mitigate the damage that it suffered.

90 Nor may the applicant validly rely on the judgment of 19 May 1992, Mulder and Others v Council and Commission (C‑104/89 and C‑37/90, EU:C:1992:217), in merely, in essence, expressing doubt that TAROM had spontaneously committed to mitigating the damage that it suffered. The applicant’s arguments are general and it adduces no specific evidence showing that TAROM showed a lack of diligence.

91 It follows from the foregoing that the applicant’s argument that the Commission failed to ascertain whether TAROM had taken reasonable steps to mitigate the damage that it suffered must be rejected, such that the contested decision is not vitiated by an error of assessment in that respect.

92 In the sixth place, the applicant claims that the Commission should have ascertained whether TAROM’s costs during the relevant period took account of ‘one-off or extraordinary costs’. Thus, the contested decision does not make clear whether TAROM’s costs taken into account in the damage assessment were directly attributable to the COVID-19 pandemic. The applicant refers to the example of Commission Decision C(2020) 4684 final of 6 July 2020 on State aid SA.57539 (2020/N) – Austria – COVID-19 – Aid to Austrian Airlines, in which the Commission found that there was no direct link between the COVID-19 pandemic and a one-off item relating to that airline. In that case, the Commission excluded that one-off factor from the damage calculation, whereas it failed to do the same in the present case.

93 As is apparent from paragraph 55 of the contested decision, and as the Commission states, the damage calculation took into account, for each route concerned, the loss of revenue, variable costs and fixed costs that varied because of the travel restrictions, and also a ‘retention rate’.

94 The Commission therefore duly checked that the damage suffered by TAROM was directly connected to the travel restrictions linked to the COVID-19 pandemic. Nor does the applicant submit any factor to substantiate its argument. There is nothing to indicate that TAROM bore one-off or extraordinary costs during the relevant period and that the Commission failed to examine whether those costs were directly linked to the restrictions in question. The mere fact that the contested decision does not explicitly state that TAROM did not bear one-off or extraordinary costs during the relevant period is not such as to substantiate the applicant’s argument.

95 It follows that the applicant’s argument relating to one-off or exceptional costs that the Commission allegedly failed to examine must be rejected, such that the contested decision is not vitiated by an error of assessment in that respect.

96 In the seventh place, the applicant observes that, in establishing the counterfactual scenario, the Commission accepted a downward adjustment of TAROM’s actual results for the period from 1 July to 31 December 2019 on the routes in question, in order to exclude passengers who would not have travelled on the eligible routes in 2020 even in the absence of travel restrictions. In order to make that adjustment, the Commission calculated what it called the ‘retention rate’, namely the number of passengers that TAROM would have retained in the counterfactual scenario, based on the number of passengers who had taken a domestic flight, not subject to travel restrictions, in 2020, expressed as a percentage of the number of passengers on domestic flights in 2019. However, in accepting that methodology, which favoured domestic routes, on which passengers were less reluctant to travel during the COVID-19 pandemic, the Commission is alleged to have overestimated the damage. Thus the Commission, instead of relying on the number of passengers who had travelled on the domestic routes operated by TAROM during the relevant period, ought to have taken as a reference point the number of passengers who had travelled on international routes free of travel restrictions during that period, for example the routes operated by TAROM from or to Bucharest (Romania), to or from Amsterdam (Netherlands), Barcelona (Spain), Madrid (Spain), Brussels (Belgium), Nice (France), Paris-Charles-de-Gaulle (France) and Rome-Fiumicino (Italy). Since those routes were international routes, like the eligible routes, they were, in the applicant’s view, more appropriate.

97 In the present case, in order to make the adjustment in question, the Romanian authorities calculated that 28% of the passengers who had travelled between 1 July and 31 December 2019 on all domestic routes operated by TAROM had also travelled on those routes during the relevant period in 2020. It is not disputed that the domestic routes as a whole were not affected by travel restrictions during the relevant period. The Commission, when establishing the counterfactual scenario, thus considered that TAROM would have carried on the eligible routes only 28% of the passengers it had carried on those routes during the same period in 2019.

98 It is apparent from paragraph 61 of the contested decision that the calculation of the number of passengers that TAROM would have retained was based on a bundle of routes free from any travel restrictions during the whole of the relevant period, namely all domestic routes, apart from those cancelled for commercial reasons. According to that same paragraph, domestic routes constituted a good benchmark for observing passenger behaviour on routes with no travel restrictions. In that regard, the Commission explained in the contested decision that, by comparison, international routes had been affected by travel restrictions during the relevant period and that, consequently, those routes did not constitute a good benchmark for calculating the ‘retention rate’, that is to say, the number of passengers that TAROM would have retained.

99 In that regard, first, the applicant has failed to demonstrate that the international routes which it considers more appropriate constitute reliable and sufficiently representative data. Although the applicant refers to routes operated by TAROM between Romania and the Netherlands, Spain, Belgium, France and Italy, it must be held, as the Commission stated in paragraphs 10 to 12, 14, 15, 17, 19 and 20 of the contested decision, that those routes were covered by travel restrictions during a large part of the relevant period.

100 Even though certain international routes operated by TAROM were only partially covered by travel restrictions during the relevant period, they necessarily constitute a less stable and reliable sample for the purpose of determining the ‘retention rate’ than the domestic routes, which were operational during the whole of the relevant period.

101 Second, although the applicant refers to articles and reports to substantiate its argument that passengers were less reluctant to travel on domestic routes, those documents in no way demonstrate that the ‘retention rate’ used by the Commission in the contested decision was too high and that it led to TAROM being overcompensated. Those documents analyse passenger behaviour either during the COVID-19 pandemic, when restrictions were in force, or after the pandemic. Accordingly, none of those cases is relevant for the purpose of establishing a counterfactual scenario without travel restrictions linked to the COVID-19 pandemic during the relevant period.

102 Likewise, although the applicant refers to an annex containing examples of routes operated by it and other airlines between Bucharest and the Netherlands, Spain, Belgium, France, Italy, the United Kingdom, Türkiye, Egypt, Serbia, Lebanon and Moldova, it does not explain how those examples call into question the appropriateness of the ‘retention rate’ applied in the contested decision. In particular, that annex provides no information about the number of passengers retained by the airlines on those routes during the compensation periods.

103 It follows that, in order to make the adjustment at issue, the Commission was entitled to rely on domestic routes as a reliable and sufficiently representative reference point for routes free from travel restrictions during the whole of the relevant period (see, to that effect, judgment of 18 October 2023, Ryanair v Commission (Alitalia II; COVID-19), T‑333/21, not published, EU:T:2023:646, paragraph 80), such that the contested decision is not vitiated by an error of assessment in that respect.

104 In the eighth place, the applicant maintained that the Commission had erred in so far as it had failed to assess the damage caused by the COVID-19 pandemic to airlines other than TAROM. However, in answer to a written question from the Court, the applicant stated that it was withdrawing that argument (see paragraph 12 above).

105 Consequently, the first complaint in the first part of the first plea must be rejected.

(2) The second complaint, alleging that Romania’s commitment to carry out an ex post analysis casts doubt on the accuracy of the damage assessment

106 The applicant claims that Romania’s commitment, referred to in paragraph 75 of the contested decision, to provide the Commission with the results of the ex post analysis based on audited reports of the damage suffered by TAROM during the compensation periods casts doubt on the accuracy of the damage calculation. It maintains that, unlike in other cases, the damage in the present case materialised well before the contested decision was adopted. The Commission should therefore have been able to assess the damage precisely before it adopted its decision. Furthermore, as in the case that gave rise to the judgment of 9 June 2021, Ryanair v Commission (Condor; COVID-19) (T‑665/20, EU:T:2021:344), that ex post analysis would not address whether the revenues and costs in the counterfactual scenario used by the Commission to determine TAROM’s financial results in the absence of the pandemic, and therefore the damage suffered by that company, were adequate.

108 As the applicant maintains, it is apparent from paragraph 75 of the contested decision that the Romanian authorities committed to provide the Commission, by 30 June 2022, with the results of the ex post analysis based on audited reports of the damage suffered by TAROM during the compensation periods. According to that same paragraph of the contested decision, if that ex post analysis shows that TAROM was overcompensated, the Romanian authorities undertake to ensure that TAROM will repay any such overcompensation including interest.

109 Contrary to the applicant’s contention, Romania’s commitment does not cast doubt on the accuracy of the assessment of the damage suffered by TAROM, but reveals only that the amounts in question were calculated on the basis of information that may be subject to adjustments or reviews. The ex post analysis thus makes it possible to check that no overcompensation was paid to TAROM. The fact that the damage suffered by that company occurred before the contested decision was adopted does not render such an ex post analysis meaningless.

110 Nor may the applicant usefully rely on the case that gave rise to the judgment of 9 June 2021, Ryanair v Commission (Condor; COVID-19) (T‑665/20, EU:T:2021:344, paragraph 62), since the paragraph to which it refers concerned the costs associated with the extension of insolvency proceedings that had to be added to the damage to be compensated. The case referred to and the case at hand are thus characterised by different circumstances.

111 Furthermore, as regards the applicant’s criticism that the ex post assessment will not address the appropriateness of the choice of the counterfactual scenario, it is sufficient to state that the objective of that assessment, referred to in paragraph 75 of the contested decision, is to verify the amount of damage suffered by TAROM during the compensation periods on the basis of its audited accounts, and not to call into question the appropriateness of the choice of the counterfactual scenario (judgment of 18 October 2023, Wizz Air Hungary v Commission (TAROM; COVID-19), T‑332/21, not published, EU:T:2023:645, paragraph 93).

112 Consequently, the second complaint in the first part of the first plea and, accordingly, the first part of the first plea in its entirety, must be rejected.

(b) The second part of the first plea: the measure at issue gives rise to overcompensation

113 The second part of the first plea, alleging that the measure at issue would give rise to overcompensation, is divided into two complaints, alleging, first, that the Commission failed adequately to take into account the aid previously granted to TAROM under Article 107(3)(c) TFEU in the calculation of the damage suffered by that company and, second, that the Commission disregarded the competitive advantage obtained by TAROM.

(1) The first complaint, alleging that the Commission failed adequately to take into account in the calculation of the damage suffered by that company the aid previously granted to TAROM under Article 107(3)(c) TFEU

114 The applicant claims that the rescue aid previously granted to TAROM and the measure at issue overlap for July and August 2020. That overlap, according to the applicant, means that the costs covered by the rescue aid are also included in the calculation of the damage suffered by TAROM, since those costs would reduce its profitability during the relevant period. Thus, the double coverage of the same costs gives rise to overcompensation. The applicant further submits that the fact that the Romanian authorities gave an assurance that any cumulation of compensation for the damage suffered by TAROM with other aid would be excluded cannot be a substitute for an adequate statement of reasons concerning the proportionality of the measure at issue.

116 It should first be observed that there is nothing to preclude a beneficiary of aid under Article 107(2)(b) TFEU from being an undertaking concurrently benefiting from rescue aid under Article 107(3)(c) TFEU, provided that the conditions of Article 107(2)(b) TFEU are met (see, to that effect, judgment of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraphs 50 and 52).

117 The Commission addressed the question of the rescue aid previously granted to TAROM in paragraphs 120 and 121 of the contested decision and concluded that there was no risk of cumulation with that aid.

118 In that regard, it must be borne in mind that the measure at issue consists of a capital injection and is intended to compensate TAROM for the damage which it directly suffered on the eligible routes in the corresponding compensation periods during the relevant period as a result of the travel restrictions attributable to the COVID-19 pandemic.

119 The rescue aid, on the other hand, consists of a loan granted in February 2020, repayable after six months, and is intended to provide liquidity support for items already determined in advance (for example, the costs payable to staff and suppliers) in the liquidity plan submitted to the Commission before the COVID-19 pandemic, the costs of which were evaluated at the time of the decision on rescue aid to TAROM. In particular, the Romanian authorities were to ensure, first, that all payments foreseen by TAROM for a given month, made in application of the rescue aid, corresponded to the expenditure foreseen in the liquidity plan, on the basis of which the Commission had approved that aid and, second, to check that TAROM’s existing and expected liquidity during the month in question did not permit it to make those payments from its own resources.

120 Those payments made in application of the rescue aid are not compensation. The amount of those payments constitutes a debt for TAROM and is refinanced in the restructuring plan.

121 In contrast, the compensation for the damage suffered by TAROM that is authorised in the contested decision covers the unforeseen losses of revenue incurred during the relevant period as a result of the travel restrictions attributable to the COVID-19 pandemic, which are not taken into account in the decision on rescue aid to TAROM or in the liquidity plan. The amount of aid granted under the measure at issue is revenue and not debt.

122 As the Commission stated in paragraph 120 of the contested decision, the payment of compensation to TAROM under the measure at issue represented a cash inflow that would reduce the costs of the restructuring of TAROM, so that that compensation would not be included in the restructuring plan and the damage caused by the travel restrictions linked to the COVID-19 pandemic would not be covered twice by aid.

123 It follows that the Commission was correct to state, in paragraph 121 of the contested decision, that the objectives pursued and the legal bases of compatibility of the rescue aid measure and the measure at issue were distinct, as also were the costs covered by each aid measure. Likewise, the Commission was correct to conclude that the rescue aid granted to TAROM under Article 107(3)(c) TFEU would not compensate for part of the damage which it suffered as a consequence of the travel restrictions linked to COVID-19.

124 The diagram produced by the applicant, on the basis of figures presented for purely illustrative purposes, does not call that conclusion into question.

125 Moreover, as is apparent from paragraphs 74, 75 and 119 to 123 of the contested decision, any cumulation of the measure at issue with other aid is precluded.

126 Contrary to the applicant’s contention, it is clear on reading paragraphs 105 to 124 of the contested decision that the Commission did provide reasons for its assessment of the proportionality of the measure at issue.

127 It follows from the foregoing that the first complaint in the second part of the first plea must be rejected.

(2) The second complaint, alleging that the Commission disregarded the competitive advantage obtained by TAROM

128 The applicant maintains, in essence, that the Commission made an error of assessment and an error of law, since, in its assessment of the proportionality of the measure at issue, it underestimated the value of the advantage granted to TAROM by taking into account only the nominal amount of the cash flow granted to TAROM through the measure at issue, but not the competitive advantage obtained by that company as a result of that measure, which strengthened its position on the market.

130 In that regard, it should be observed that, for the purposes of assessing the compatibility of aid with the internal market, the advantage procured by that aid for its recipient does not include any economic benefit the recipient may have enjoyed as a result of exploiting that advantage (see judgment of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 84 and the case-law cited).

131 Thus, in the case of the measure at issue, that is to say, aid in the form of a capital injection, the amount of aid granted to TAROM, which the Commission must take into account in order to determine whether there has been any overcompensation of the damage suffered by that company as a result of the exceptional occurrence at issue, corresponds, in principle, to the injection of EUR 1 908 872 of capital. By contrast, for the purposes of that determination, the Commission must not have regard to any advantage that TAROM might have indirectly derived from the measure at issue, such as the competitive advantage alleged by the applicant (see, to that effect, judgment of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 85).

132 In those circumstances, the applicant cannot validly criticise the Commission for not having taken account of any competitive advantage obtained by TAROM by virtue of the measure at issue.

133 It follows from the foregoing that the second part of the first plea and, accordingly, the first plea in its entirety, must be rejected.

2. The second plea: breach of the principles of non-discrimination, the freedom to provide services and the freedom of establishment

134 The applicant maintains, in essence, that the Commission breached the principle of non-discrimination and the principles of the freedom to provide services and the freedom of establishment on the ground that the measure at issue benefits only TAROM.

136 It should be borne in mind that State aid which contravenes provisions of the Treaty or general principles of EU law cannot be declared compatible with the internal market (judgment of 22 September 2020, Austria v Commission, C‑594/18 P, EU:C:2020:742, paragraph 44; see also, to that effect, judgment of 15 April 2008, Nuova Agricast, C‑390/06, EU:C:2008:224, paragraphs 50 and 51).

137 The principle of non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (judgment of 15 April 2008, Nuova Agricast, C‑390/06, EU:C:2008:224, paragraph 66; see also, to that effect, judgment of 5 June 2018, Montero Mateos, C‑677/16, EU:C:2018:393, paragraph 49).

138 The elements which characterise different situations, and hence their comparability, must in particular be determined and assessed in the light of the subject matter and purpose of the EU act which makes the distinction in question. The principles and objectives of the field to which the act relates must also be taken into account (judgment of 16 December 2008, Arcelor Atlantique et Lorraine and Others, C‑127/07, EU:C:2008:728, paragraph 26).

139 Moreover, it should be borne in mind that the principle of proportionality, which is one of the general principles of EU law, requires that acts adopted by EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued by the legislation in question (judgment of 17 May 1984, Denkavit Nederland, 15/83, EU:C:1984:183, paragraph 25); where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (judgment of 30 April 2019, Italy v Council (Fishing quota for Mediterranean swordfish), C‑611/17, EU:C:2019:332, paragraph 55).

140 The applicant maintains, in essence, that the contested decision allows discriminatory treatment that is neither appropriate nor necessary to attain the objective of the measure at issue, namely to make good the damage caused by the travel restrictions linked to the COVID-19 pandemic. The applicant states that it has 40.8% of the Romanian market for the carriage of passengers by air and that it therefore suffered around 40.8% of the damage caused by the travel restrictions linked to the COVID-19 pandemic in that Member State. If the measure at issue had been granted to all the airlines present in Romania, its objective would be attained without discrimination. In that regard, the contested decision does not explain why the measure at issue was granted only to TAROM, when the other airlines present in Romania also suffered damage as a result of the travel restrictions linked to the COVID-19 pandemic. In the applicant’s submission, the measure at issue is a measure of ‘naked economic nationalism’.

141 In that regard, first of all, it should be borne in mind that the classification of a national measure as ‘State aid’, within the meaning of Article 107(1) TFEU, requires, inter alia, that that measure confers a selective advantage on the recipient while distorting or threatening to distort competition (judgments of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 101, and of 23 November 2023, Ryanair v Commission, C‑210/21 P, EU:C:2023:908, paragraph 32). In particular, the requirement of selectivity arising from Article 107(1) TFEU presupposes that the Commission will establish that the economic advantage, understood in the broad sense, arising directly or indirectly from a particular measure specifically benefits one or more undertakings. It falls to the Commission to show, in particular, that the measure in question creates differences between undertakings which, with regard to the objective of the measure, are in a comparable situation. It is necessary therefore that the advantage be granted selectively and that it be liable to place certain undertakings in a more favourable situation than that of others (judgments of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 103, and of 23 November 2023, Ryanair v Commission, C‑210/21 P, EU:C:2023:908, paragraph 34).

142 Nonetheless, State aid granted for the purposes of and in accordance with the conditions laid down by Article 107(2) TFEU are compatible with the internal market. It follows that, unless that provision is to be deprived of all practical effect, State aid which is granted for the purposes of an objective recognised therein and within the limits of what is necessary and proportionate to the achievement of that objective, cannot be held to be incompatible with the internal market for effects which are inherent in any State aid, that is to say, inter alia, for reasons relating to whether the aid is selective or distorts competition (judgments of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraphs 106 and 107, and of 23 November 2023, Ryanair v Commission, C‑210/21 P, EU:C:2023:908, paragraphs 35 and 36).

143 Therefore, aid cannot be considered incompatible with the internal market for reasons that are solely linked to whether it is selective or distorts or threatens to distort competition (judgments of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 108, and of 23 November 2023, Ryanair v Commission, C‑210/21 P, EU:C:2023:908, paragraph 37).

144 Admittedly, the procedure provided for in Article 108 TFEU must never produce a result that is contrary to the specific provisions of the FEU Treaty. Accordingly, State aid which, as such or by reason of some modalities thereof, contravenes provisions or general principles of EU law cannot be declared compatible with the internal market (judgments of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 109, and of 23 November 2023, Ryanair v Commission, C‑210/21 P, EU:C:2023:908, paragraph 38).

145 However, as regards Article 18 TFEU specifically, it is settled case-law that that article is intended to apply independently only to situations governed by EU law in respect of which the FEU Treaty lays down no specific prohibition of discrimination (judgments of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 110, and of 23 November 2023, Ryanair v Commission, C‑210/21 P, EU:C:2023:908, paragraph 39).

146 Since Article 107(2) TFEU provides for derogations from the principle, referred to in paragraph 1 of that article, that State aid is incompatible with the internal market, and thus allows, in particular, differences in treatment between undertakings, subject to the requirements laid down by those derogations being fulfilled, those derogations must be regarded as ‘special provisions’ provided for in the Treaties, within the meaning of the first paragraph of Article 18 TFEU (judgments of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 111, and of 23 November 2023, Ryanair v Commission, C‑210/21 P, EU:C:2023:908, paragraph 40).

147 It follows that, in the present case, it is necessary to examine only whether the difference in treatment brought about by the measure at issue is permitted under Article 107(2) TFEU.

148 In that respect, as regards, in the first place, the objective of the measure at issue, the applicant does not deny that compensation for the damage suffered by an airline on the routes in question during the relevant period, as a result of the travel restrictions linked to the COVID-19 pandemic, makes it possible to make good, if only in part, the damage caused by that pandemic. Nor does the applicant dispute that the COVID-19 pandemic is an exceptional occurrence within the meaning of Article 107(2)(b) TFEU.

149 As regards, in the second place, the modalities for granting the measure at issue, it should be observed that that measure was intended to compensate for the damage suffered by TAROM as a result of the travel restrictions linked to the COVID-19 pandemic only on specifically designated routes between, in particular, Romania and other States and only during a specific period.

150 As is clear from the contested decision, those modalities are explained by the fact that general lockdown measures and border closures adopted by the Member States were partially lifted at national and EU level in June 2020, but that numerous travel restrictions remained in force during the relevant period. According to the contested decision, Romania was in a state of alert throughout the relevant period and measures to prevent and combat the virus, including travel restrictions, were then applied.

151 It follows from the contested decision that TAROM was severely affected by the travel restrictions linked to the COVID-19 pandemic that were imposed on the eligible routes during the relevant period.

152 Second, as is apparent from the contested decision, TAROM is a company which has provided connectivity for Romania’s since 1954. It is active in the carriage by air of passengers, but also in the carriage by air of freight and mail. A single-hub carrier, TAROM operates out of OTP Bucharest Henri-Coandă International Airport and had around 1 800 employees at the beginning of 2020. Before the onset of the COVID-19 pandemic, regional connectivity within Romania and the country’s international connectivity were to a large extent provided owing to the important role played by that company. Indeed, it is apparent from the contested decision, in particular from paragraphs 11 to 16, 22, 23 and 60 to 63, that TAROM operated a large number of air routes.

153 As to whether the measure at issue goes beyond what is necessary to attain the intended objective, it should be stated that the amount of the measure at issue does not exceed the amount of the damage suffered by TAROM on the eligible routes during the relevant period as a result of the travel restrictions linked to the COVID-19 pandemic, as is apparent in particular from paragraphs 73 and 124 of the contested decision. The measure at issue therefore does not go beyond what is necessary to attain the legitimate objective which it pursues.

154 Consequently, it must be found that the difference in treatment in favour of TAROM is appropriate for making good the damage resulting from the travel restrictions linked to the COVID-19 pandemic and does not go beyond what is necessary to attain that objective.

155 Moreover, the applicant has not established that sharing the amount of the aid in question among all the airlines present in Romania would not have deprived that measure of its practical effect.

156 It follows that the measure at issue does not breach the principle of non-discrimination.

(b) Breach of the freedom of establishment and of the freedom to provide services

157 The applicant maintains, in essence, that the measure at issue constitutes an obstacle to the freedom of establishment and the freedom to provide services owing to its discriminatory nature.

158 In that regard, as pointed out in paragraph 144 above, the procedure under Article 108 TFEU must never produce a result which is contrary to the specific provisions of the Treaty. Accordingly, State aid which, as such or by reason of some modalities thereof, contravenes provisions or general principles of EU law cannot be declared compatible with the internal market (judgment of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 131).

159 However, it should be observed, first, that the restrictive effects which an aid measure has on the freedom to provide services or the freedom of establishment still do not constitute a restriction prohibited by the Treaty, since it may be inherent in the very nature of State aid, for example its selective nature (judgment of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 132).

160 Second, where the modalities of an aid measure are so indissolubly linked to the object of the aid that it is impossible to evaluate them separately, their effect on the compatibility or incompatibility of the aid viewed as a whole with the internal market must therefore of necessity be determined by means of the procedure prescribed in Article 108 TFEU (judgment of 22 March 1977, Iannelli & Volpi, 74/76, EU:C:1977:51, paragraph 14; see, also, judgment of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 133 and the case-law cited).

161 In this instance, as is apparent from paragraph 5 of the contested decision, the choice of TAROM as beneficiary of the measure at issue is part of the object of that measure and, even if that choice were to be regarded as a modality of that measure, such a modality would be indissolubly linked to that object, which is to compensate that airline for the damage resulting from travel restrictions linked with the COVID-19 pandemic. It follows that the effect resulting from the choice of TAROM as beneficiary of the measure at issue on the internal market cannot be examined separately from the compatibility of that aid measure viewed as a whole with the internal market by means of the procedure prescribed in Article 108 TFEU.

162 Although the applicant maintains that the measure at issue constitutes an obstacle to the freedom of establishment and the freedom to provide services because of its discriminatory nature, it does not demonstrate, in the present case, that that measure produced restrictive effects which went beyond those inherent in State aid granted in accordance with the requirements laid down in Article 107(2)(b) TFEU.

163 Nor, furthermore, does the applicant show how that exclusive nature is such as to deter it from providing services to and from Romania or from exercising its freedom of establishment in that Member State.

164 Consequently, the measure at issue cannot constitute an obstacle to the freedom of establishment or to the freedom to provide services. It follows that the applicant cannot validly take issue with the Commission for not having examined the compatibility of that measure with the freedom of establishment and the freedom to provide services.

3. The third plea: the Commission should have initiated the formal investigation procedure

166 The applicant maintains, in essence, that the examination carried out by the Commission was incomplete and insufficient, as shown, in particular, by the arguments which it puts forward in support of the first and second pleas. In its submission, that attests to the existence of serious difficulties that should have led the Commission to initiate the formal investigation procedure and to allow the applicant to submit its comments.

168 When an applicant seeks the annulment of a decision of the Commission not to raise objections in relation to State aid, it essentially contests the fact that that decision was adopted without the Commission having initiated the formal investigation procedure, thereby infringing the applicant’s procedural rights. In order to have its action for annulment upheld, the applicant may invoke any plea to show that the assessment of the information and evidence which the Commission had at its disposal during the preliminary examination phase of the measure notified should have raised doubts as to the compatibility of that measure with the internal market. The use of such arguments cannot, however, have the consequence of changing the subject matter of the application or altering the conditions of its admissibility. On the contrary, the existence of doubts concerning that compatibility is precisely the evidence which must be adduced in order to show that the Commission was required to initiate the formal investigation procedure under Article 108(2) TFEU and Article 6(1) of Regulation 2015/1589 (see judgment of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 143 and the case-law cited).

169 It is for the person making such a claim to show that there were doubts concerning the compatibility of the measure at issue with the internal market, meaning that the Commission was required to initiate the formal investigation procedure under Article 108(2) TFEU. Such proof must be sought both in the circumstances in which the decision was taken and in its content, on the basis of a body of corroborating evidence (see judgment of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 144 and the case-law cited).

170 In particular, the insufficient or incomplete nature of the examination carried out by the Commission during the preliminary examination procedure is an indication that the Commission encountered serious difficulties in assessing the compatibility of the notified measure with the internal market, which should have led it to initiate the formal investigation procedure (see judgment of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 145 and the case-law cited).

171 In the present case, it is true that, as the applicant claims, if it succeeded in demonstrating that the Commission had encountered serious difficulties in assessing the compatibility of the measure at issue, the contested decision should be annulled on that ground alone, even though the applicant had not established, moreover, that the Commission’s assessments as to substance were wrong in law or in fact (see judgment of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 146 and the case-law cited).

172 The applicant also correctly claims that, in order to demonstrate that the Commission encountered such difficulties, it may rely on the assessments on which the Commission relied and therefore put forward arguments relating to the merits of the contested decision, even if the examination of those arguments would not lead to the conclusion that the Commission’s assessments as to substance were wrong in fact or in law (see judgment of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 147 and the case-law cited).

173 However, it must be stated that the present plea relies, in essence, on the incomplete and insufficient nature of the examination carried out by the Commission during the preliminary examination procedure and on the different assessment of the compatibility of the measure at issue at which the Commission would have arrived following a formal investigation procedure. It is apparent from the applicant’s written submissions to the Court that, in support of this plea, the applicant has essentially either repeated in a condensed manner arguments put forward in the context of the first two pleas in the action, relating to the merits of the contested decision, or referred directly to those arguments.

174 In those circumstances, since the Court has examined the substance of the first and second pleas, including the arguments alleging that the examination carried out by the Commission was incomplete and insufficient, it is not required to assess separately the merits of the present plea, since, by this plea, the applicant has not put forward specific evidence capable of demonstrating that the Commission encountered serious difficulties in assessing the compatibility of the measure at issue with the internal market (see, to that effect, judgment of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 149).

176 The applicant maintains that the Commission infringed the second paragraph of Article 296 TFEU, in so far as, first, it did not consider whether it was appropriate to use TAROM’s 2019 data as the counterfactual scenario, in spite of the evidence showing that that company’s financial position would have deteriorated in 2020 in comparison with 2019 in the absence of the COVID-19 pandemic; second, it failed to ascertain whether TAROM had mitigated the damage suffered during the relevant period and, more generally, to make clear whether that company was under an obligation to mitigate the damage; third, it failed to analyse, even summarily, the value of the commercial advantage conferred on TAROM; fourth, it failed to explain intelligibly how the rescue aid previously granted to that company had been taken into account in order to exclude any overcompensation; fifth, it did not explain how the aid for TAROM could be prevented from extending to ‘subsidiaries of TAROM’; and, sixth, it did not examine whether the measure at issue was non-discriminatory and whether it was compatible with Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community (OJ 2008 L 293, p. 3) and the principles of the freedom to provide services and the freedom of establishment.

178 In that regard, it should be borne in mind that the statement of reasons required by Article 296 TFEU is an essential procedural requirement and that it must be appropriate to the measure at issue and disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the court having jurisdiction to exercise its power of review. Accordingly, the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of concern within the meaning of the fourth paragraph of Article 263 TFEU, may have in obtaining explanations. It is not necessary for the reasoning to specify all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements laid down in Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgments of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 156, and of 18 October 2023, Wizz Air Hungary v Commission (TAROM; COVID-19), T‑332/21, not published, EU:T:2023:645, paragraph 179).

179 In the present case, as regards the nature of the measure at issue, it should be observed that the contested decision was adopted following the preliminary stage of the procedure for reviewing aid established by Article 108(3) TFEU, the sole purpose of which is to allow the Commission to form a prima facie opinion on the partial or total compatibility of the aid concerned, without initiating the formal investigation procedure provided for in paragraph 2 of that article, which, for its part, is intended to enable the Commission to be fully informed of all the facts pertaining to that aid.

180 Such a decision, which is taken within a short period of time, must simply set out the reasons why the Commission takes the view that it is not faced with serious difficulties in assessing the compatibility of the aid at issue with the internal market (judgment of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 157; see, also, judgment of 18 October 2023, Wizz Air Hungary v Commission (TAROM; COVID-19), T‑332/21, not published, EU:T:2023:645, paragraph 181 and the case-law cited).

181 In that regard, first, as regards the arguments relating to the counterfactual scenario and damage mitigation, the applicant confuses the merits of the matters of fact and of law on which the contested decision is based with the absence or inadequacy of the reasons stated for that measure, so that such arguments must be regarded as ineffective (see, to that effect, judgment of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraphs 65 to 67). The merits of those arguments were assessed, moreover, when examining the first complaint in the first part of the first plea.

182 Second, as regards the reasoning set out in the contested decision in relation to the value of the competitive advantage conferred on TAROM, it is sufficient to state, as is apparent from paragraphs 130 and 131 above, that the Commission did not have to take such an advantage into consideration for assessing the compatibility of the measure at issue with the internal market, such that it likewise did not have to refer to it in the contested decision (see, to that effect, judgment of 18 October 2023, Wizz Air Hungary v Commission (TAROM; COVID-19), T‑332/21, not published, EU:T:2023:645, paragraph 182).

183 Third, as regards the reasons set out in the contested decision concerning the rescue aid previously granted to TAROM, it is clear upon reading paragraphs 120 and 121 of that decision that the Commission clearly stated the reasons why it considered that that rescue aid and the measure at issue did not cover the same costs. Furthermore, those paragraphs of the contested decision enabled the applicant to contest the merits of that finding and, in addition, allowed the Court to exercise its power of review of the legality of the contested decision (see paragraphs 114 to 126 above).

184 Fourth, as regards the argument relating to the reasoning in the contested decision concerning ‘subsidiaries of TAROM’, since the subsidiaries in question are not identified in the contested decision, it must be concluded that such an argument is ineffective. In fact, the contested decision does not refer to any TAROM subsidiary and the applicant provides no argument to explain why the Commission should have examined a possible transfer to a subsidiary of the aid granted to TAROM under the measure at issue.

185 Fifth, as regards the principles of non-discrimination, the freedom to provide services and the freedom of establishment, it should indeed be observed that, according to the case-law, where the beneficiaries of the measure, on the one hand, and other excluded operators, on the other, are in a comparable situation, the EU institution which is the author of the act is under a duty to explain in what way the difference in treatment thus introduced is objectively justified and to give specific reasons in that regard (judgment of 15 April 2008, Nuova Agricast, C‑390/06, EU:C:2008:224, paragraph 82). However, unlike the measure concerned in the judgment of 15 April 2008, Nuova Agricast (C‑390/06, EU:C:2008:224), which constituted an aid scheme, the measure at issue in the present case is an individual aid measure and, consequently, the Commission was not obliged to provide, in the contested decision, specific reasons as regards the compatibility of that measure with those principles (see, to that effect, judgment of 18 October 2023, Wizz Air Hungary v Commission (TAROM; COVID-19), T‑332/21, not published, EU:T:2023:645, paragraph 185).

186 It follows from the foregoing that the contested decision contains a sufficient statement of reasons and that, consequently, the fourth plea must be rejected.

188 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the latter.

2. Orders Wizz Air Hungary Légiközlekedési Zrt. (Wizz Air Hungary Zrt.) to pay the costs.

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Wizz Air Hungary v Commission (TAROM II; Covid-19) (State aid - Romanian air transport market - Judgment) [2024] EUECJ T-827/22 (06 November 2024) URL: http://www.bailii.org/eu/cases/EUECJ/2024/T82722.html Cite as: ECLI:EU:T:2024:784, EU:T:2024:784, [2024] EUECJ T-827/22

Court of Justice of the European Communities (including Court of First Instance Decisions)