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Commission Decision (Eu) 2016/ 2069

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Commission Decision (Eu) 2016/ 2069 30.11.2016 EN Official Journal of the European Union L 325/63 COMMISSION DECISION (EU) 2016/2069 of 1 October 2014 concerning measures SA.14093 (C76/2002) implemented by Belgium in favour of Brussels South Charleroi Airport and Ryanair (notified under document C(2014) 6849) (Only the French text is authentic) (Text with EEA relevance) THE EUROPEAN COMMISSION, Having regard to the Treaty on the Functioning of the European Union, and in particular the first subparagraph of Article 108(2) thereof (1), Having regard to the Agreement on the European Economic Area, and in particular Article 62(1)(a) thereof, Having called on interested parties to submit their comments pursuant to the above Articles (2), and having regard to these comments, Whereas: 1. PROCEDURE (1) Following information published in the Belgian press in July 2001 and the receipt of a complaint in January 2002, the Commission was informed that Belgium had granted aid measures to the airline Ryanair Ltd (hereinafter ‘Ryanair’) for the operation of air services at Charleroi Airport. In letters dated 21 November 2001, 13 June 2002 and 4 July 2002, and in a meeting held on 9 October 2002, Belgium provided information on this subject to the Commission. (2) In a letter dated 11 December 2002 (3) (hereinafter ‘opening decision’), the Commission informed Belgium of its decision to initiate the procedure provided for in Article 108(2) TFEU (hereinafter ‘formal investigation procedure’) in respect of these measures. Belgium submitted its comments on 14 February 2003. (3) The opening decision was published in the Official Journal of the European Union (4). The Commission invited interested parties to submit their comments on the measures in question within one month of the publication date. (4) The Commission received comments from interested parties. It forwarded the comments to Belgium by letters dated 19 March and 22 April 2003. Belgium was given the opportunity to respond to them. The Commission received Belgium's observations by letters dated 16 and 27 May 2003. (5) At the request of the Commission, three meetings were held with the Belgian authorities on 24 June 2003, 23 July 2003 and 25 July 2003. These meetings were followed by the dispatch of additional information on 27 August 2003, as requested by the Commission. (6) On 19 December 2003 Belgium sent a letter containing additional information to the Commission. In this letter, the Belgian authorities requested another meeting with the Commission; this meeting was held on 16 January 2004. (1) With effect from 1 December 2009, Articles 87 and 88 of the Treaty establishing the European Community (‘TEC’) have become Articles 107 and 108, respectively, of the Treaty on the Functioning of the European Union (‘TFEU’). The two sets of provisions are, in substance, identical. For the purposes of this Decision, references to Articles 107 and 108 of the TFEU should be understood as references to Articles 87 and 88, respectively, of the EC Treaty. The TFEU also introduced certain changes in terminology, such as replacing ‘Community’ with ‘Union’, ‘common market’ with ‘internal market’, and ‘Court of First Instance’ with ‘General Court’. The terminology of the TFEU is used throughout this Decision. (2) OJ C 248, 17.8.2012, p. 1. (3) SG(2002) D/233141. (4) OJ C 18, 25.1.2003, p. 3. L 325/64 EN Official Journal of the European Union 30.11.2016 (7) On 12 February 2004 the Commission adopted a partly negative final decision (5) (hereinafter ‘2004 decision’). (8) This decision was annulled by judgment of the General Court of 17 December 2008 (6) (hereinafter ‘2008 judgment’), obliging the Commission to take a new final decision on the measures in question. The General Court found that the Commission's failure to examine together the measures granted to Ryanair by the Walloon Region (hereinafter ‘Region’) and by the Charleroi airport manager, the public sector company Brussels South Charleroi Airport (hereinafter ‘BSCA’), and to check whether, taken together, these two entities had acted as rational operators in a market economy, was vitiated by an error in law. The 2008 judgment had the effect of reopening the formal investigation procedure, which had been closed by the 2004 decision. (9) In a letter dated 23 July 2010, the Commission gave Belgium, and the parties having submitted comments in the formal investigation procedure initiated on 11 December 2002, the opportunity to submit further comments in the formal investigation procedure reopened following the 2008 judgment. At the request of the Commission made on 20 April 2011, the Belgian authorities sent further information in letters dated 14 July and 21 September 2011. (10) In a letter dated 21 March 2012, the Commission informed Belgium of its decision to extend the formal investi­ gation procedure to other measures (hereinafter ‘2012 extension decision’). (11) The 2012 extension decision was published in the Official Journal of the European Union (7). The Commission invited interested parties to submit their comments on the measures in question. (12) Belgium submitted its comments on 22 May 2012. The comments of 22 May 2012 did not contain the summary table in Annex I to the 2012 extension decision. This was submitted on 5 June 2012. (13) On 9 August 2012 the Commission requested further information on, inter alia, the costs incurred by the Société Wallonne des Aéroports (hereinafter ‘SOWAER’) due to its investments in Charleroi airport and its work for BSCA. On 3 September 2012 the Belgian authorities submitted SOWAER's annual accounts for the years 2001 to 2004. They provided further information on 9 October and 18 October 2012. (14) On 26 October 2012, following a meeting, the Commission requested further information. Belgium provided this information on 9 November 2012. (15) The Commission received comments from the following interested parties: — comments were received from Interested Party C on 14 September 2012, — comments were received from the Board of Airline Representatives on 17 September 2012, as also comments from Air France, the Association of European Airlines and the Brussels Airport Company, — comments were received from Brussels Airlines on 18 September 2012, — comments were received from BSCA on 4 October 2012, — Ryanair submitted its comments on 3 October 2012, making reference to the comments provided on 30 September 2011, 13 April 2012 and 4 July 2012. Ryanair submitted further comments on 10 April 2013, 20 December 2013, and 17 and 31 January 2014. (16) The Commission forwarded these comments to Belgium on 2 July and 29 October 2012, 3 May 2013, 22 January and 24 February 2014. Belgium was given the opportunity to respond to them. The Commission received Belgium's observations by letters dated 17 July 2012, 14 December 2012 and 5 June 2013. (5) Commission Decision 2004/393/EC of 12 February 2004 concerning advantages granted by the Walloon Region and Brussels South Charleroi Airport to the airline Ryanair in connection with its establishment at Charleroi (OJ L 137, 30.4.2004, p. 1). (6) Judgment of 17 December 2008 in Case T-196/04 Ryanair Ltd v Commission of the European Communities [2008] ECR II-3646, ECLI:EU:T:2008:585. (7) See footnote 2. 30.11.2016 EN Official Journal of the European Union L 325/65 (17) On 14 January 2014 the Commission requested further information from Belgium, particularly with regard to applying the market economy operator test to the measures granted to BSCA. Belgium responded in letters sent on 7 and 24 February 2014. However, as these responses were incomplete, the Commission sent a reminder to Belgium on 10 March 2014, indicating the missing responses and asking Belgium to answer accordingly. Further information was submitted by Belgium on 24 March 2014. (18) On 7 February 2014 the Commission requested further information from Belgium, particularly with regard to the measures granted to Ryanair. On 18 and 24 March 2014 Belgium provided some answers to the questions asked. (19) Also on 7 February 2014, a meeting was held at Charleroi airport between representatives of the Walloon Region, SOWAER and BSCA, on the one hand, and the Commission services on the other. (20) On 25 February and 11 March 2014, the Commission asked Belgium for further information, including clarifi­ cations on the information provided by Belgium on 7 and 24 February 2014 concerning the measures granted by the Region and SOWAER to BSCA. Belgium responded in letters sent on 25 March and 4 April 2014 (annexes sent on 9 April 2014). (21) On 17 and 19 March 2014, following the adoption of the Guidelines on State aid to airports and airlines (hereinafter ‘aviation guidelines’ (8)), the Commission called on Belgium and the interested parties to submit their comments on the application of the aviation guidelines to this case. In addition, on 15 April 2014 a notice was published inviting Member States and interested parties to submit their comments, including in this case, on the entry into force of the EU Guidelines on State aid to airports and airlines. The Commission received comments from the Brussels Airport Company, Brussels Airlines, the Board of Airline Representatives, Air France, and the Association for Transport and Environment. It forwarded these comments to Belgium on 26 May 2014. The latter submitted its comments on 26 June 2014. (22) A further meeting was held on 11 April 2014 between the Commission services on the one hand and Belgium, BSCA and SOWAER on the other hand. Following this meeting, Belgium submitted documents together with a note dated 5 May 2014 on the public service tasks entrusted to BSCA. (23) On 5 May 2014 the Commission sent a further request for information to Belgium, to which the latter responded on 13 May 2014.
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