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

JUDGMENT OF THE GENERAL COURT (Tenth Chamber)

18 October 2023 (*)

(State aid - Belgian air transport market - Aid granted by Belgium to Brussels Airlines in the context of the COVID-19 pandemic - Recapitalisation - Loan - Decision not to raise objections - Temporary framework for State aid measures - Measure intended to remedy a serious disturbance in the economy of a Member State - Failure to weigh the beneficial effects of the aid against its adverse effects on trading conditions and the maintenance of undistorted competition - Equal treatment - Freedom of establishment - Freedom to provide services - Obligation to state reasons)

In Case T‑14/21,

Ryanair DAC, established in Swords (Ireland), represented by E. Vahida, F.-C. Laprévote, V. Blanc, S. Rating, I.-G. Metaxas-Maranghidis and D. Pérez de Lamo, lawyers,

applicant,

v

European Commission, represented by L. Flynn, A. Bouchagiar and F. Tomat, acting as Agents,

defendant,

supported by

Kingdom of Belgium, represented by L. Van den Broeck and C. Pochet, acting as Agents, and by A. Vallery, F. Louis and É. Bruc, lawyers,

by

Federal Republic of Germany, represented by P.-L. Krüger and J. Möller, acting as Agents,

and by

Brussels Airlines SA/NV, established in Brussels (Belgium), represented by V. Mussche and D. Wouters, lawyers,

interveners,

THE GENERAL COURT (Tenth Chamber),

composed, at the time of the deliberations, of A. Kornezov, E. Buttigieg and G. Hesse (Rapporteur), Judges,

Registrar: S. Spyropoulos, Administrator,

having regard to the written part of the procedure,

–        further to the hearing on 21 October 2022,

gives the following

Judgment

1        By its action on the basis of Article 263 TFEU, the applicant, Ryanair DAC, seeks annulment of Commission Decision C(2020) 5840 final of 21 August 2020 on State aid SA.57544 (2020/N) - Belgium COVID-19: Aid to Brussels Airlines (‘the contested decision’).

I.      Background to the dispute

2        On 20 August 2020, the Kingdom of Belgium notified the European Commission of an aid measure in accordance with Article 108(3) TFEU (‘the measure at issue’). The measure at issue was individual aid granted by the Kingdom of Belgium, through the Société fédéral de participations et d’investissement (SFPI-FPIM), in the form of a subsidised interest loan of EUR 287.1 million to SN Airholding SA/NV (‘the subsidised loan’) and a recapitalisation of EUR 2.9 million to Brussels Airlines SA/NV (‘the recapitalisation measure’).

3        The beneficiary of the measure at issue is the single economic unit composed of SN Airholding and its sole subsidiary Brussels Airlines (together, ‘the beneficiary’ or ‘the SN Group’). The SN Group is controlled by Deutsche Lufthansa AG (‘DLH’). SN Airholding is a holding company which does not operate on the market.

4        The measure at issue is based on Article 107(3)(b) TFEU and the Communication from the Commission of 19 March 2020 entitled ‘Temporary Framework for State aid measures to support the economy in the current COVID-19 outbreak’ (OJ 2020 C 91 I, p. 1), amended on 3 April 2020 (OJ 2020 C 112 I, p. 1), 8 May 2020 (OJ 2020 C 164, p. 3) and 29 June 2020 (OJ 2020 C 218, p. 3) (‘the Temporary Framework’).

5        A stabilisation agreement was concluded between the beneficiary and the SFPI-FPIM with a view to laying down the detailed rules governing the financial assistance from the Belgian State.

II.    Forms of order sought

6        The applicant claims that the Court should:

–        annul the contested decision;

–        order the Commission to pay the costs.

7        The Commission, supported by the Kingdom of Belgium, the Federal Republic of Germany and Brussels Airlines, contends that the Court should:

–        dismiss the action as unfounded;

–        order the applicant to pay the costs.

III. Law

8        In support of the action, the applicant puts forward five pleas in law, alleging (i) misuse of powers and misapplication of the Temporary Framework, (ii) infringement of Article 107(3)(b) TFEU, (iii) infringement of the principles of non-discrimination, freedom to provide services and freedom of establishment, (iv) infringement of the applicant’s procedural rights and (v) failure to state reasons.

A.      Admissibility

9        First, the applicant submits that it is an interested party within the meaning 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 TFEU (OJ 2015 L 248, p. 9), and that, therefore, it has standing to bring proceedings in this case to protect its procedural rights. Secondly, the applicant submits that its competitive position on the market has been substantially affected by the measure at issue and that it is entitled to challenge the merits of the contested decision.

10      The Commission does not dispute the admissibility of the action. The Kingdom of Belgium, the Federal Republic of Germany and Brussels Airlines have not taken a position on this point.

11      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 Council Regulation 2015/1589, as in the present case, it not only declares that the measures at issue are compatible with the internal market, but also, by implication, that it refuses to initiate the formal investigation procedure laid down in Article 108(2) TFEU and in Article 6(1) of that regulation (see, by analogy, 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 (see, by analogy, judgment of 24 May 2011, Commission v Kronoply and Kronotex, C‑83/09 P, EU:C:2011:341, paragraph 46).

12      In the present case, the Commission decided as a result of a preliminary examination not to raise objections to the measure at issue on the ground that it was compatible with the internal market, pursuant to Article 107(3)(b) TFEU. Since the formal investigation procedure was not initiated, the interested parties who could have submitted comments during that stage were deprived of that possibility. In order to remedy this, they are entitled to challenge the Commission’s decision not to initiate the formal investigation procedure before the EU Courts. Accordingly, 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 would be seeking to safeguard the procedural rights available to it under that latter provision (see, to that effect, judgment of 18 November 2010, NDSHT v Commission, C‑322/09 P, EU:C:2010:701, paragraph 56 and the case-law cited).

13      In the light of Article 1(h) of Regulation 2015/1589, an undertaking competing with the beneficiary of an aid measure is an ‘interested party’ within the meaning 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).

14      In the present case, it is not disputed that the applicant was a competitor of Brussels Airlines and therefore is an interested party within the meaning of Article 1(h) of Regulation 2015/1589, with standing to bring proceedings in order to safeguard its procedural rights under Article 108(2) TFEU.

15      As regards the applicant’s standing to challenge the merits of the contested decision, it must be recalled 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 individual concern to them. Secondly, 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).

16      Given that the decision at issue, which was addressed to the Kingdom of Belgium, does not constitute a regulatory act under the fourth paragraph of Article 263 TFEU as 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 General Court has the task of determining whether the appellant was directly and individually concerned by that decision, within the meaning of that provision.

17      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. 107; of 28 January 1986, Cofaz and Others v Commission, 169/84, EU:C:1986:42, paragraph 22; of 22 November 2007, Sniace v Commission, C‑260/05 P, EU:C:2007:700, paragraph 53).

18      Accordingly, where an applicant calls into question the merits of a decision appraising the 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 within the meaning of the case-law referred to in paragraph 17 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).

19      In that regard, the Court of Justice has held that the demonstration by the applicant of a substantial effect on its market position did not entail a definitive ruling on the competitive relationship between the applicant and the undertakings in receipt of aid, but required only that the applicant adduce pertinent reasons to show that the Commission’s decision could 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).

20      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).

21      It follows that that condition may be satisfied if the applicant adduces evidence to show that the measure at issue is liable to have a substantial adverse effect on its position on the market concerned (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).

22      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).

23      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).

24      In addition, the case-law does not require the applicant to provide information as to the geographical scope of those markets, or as to its market shares or those of the beneficiary of the measure in question or of any competitors on those markets (judgment of 15 July 2021, Deutsche Lufthansa v Commission, C‑453/19 P, EU:C:2021:608, paragraph 65).

25      It is in the light of those principles that it is necessary to examine whether the applicant has adduced evidence to show that the measure at issue was liable to have a significant adverse effect on its position on the market concerned.

26      In that regard, the applicant submits that it is the closest and most direct competitor of the SN Group. Thus, it was in direct competition with Brussels Airlines on 46 routes between ‘point of origin/point of destination’ city pair routes (‘O&D routes’), routes which were, moreover, shared with very few other competitors. Those routes are of considerable economic importance, since they connect Belgium to the largest cities in Europe. The applicant carried 2 476 739 passengers on those routes in 2019. Furthermore, the applicant has a significant position in the Belgian air transport market, which is demonstrated, moreover, by the growth in the volume of traffic which it claims to have achieved in that market between 2010 and 2019 and by the expansion which it planned to make in that market in the future, as evidenced by the order for 210 Boeing 737 Max aircraft. In that regard, the applicant relies on the tables annexed to the application as Annex A.3.2, according to which, in 2019, it had a 27% share of the Belgian market, the SN Group had a 31% share of that market and another airline, as a third operator, had a share of 7%.

27      In the second part of its first plea, the applicant claims that the Commission was wrong to take the view, applying an ‘airport-by-airport’ approach, that flights to or from Brussels Airport (Belgium), operated by Brussels Airlines, could not be replaced by flights to or from Charleroi Airport (Belgium), which included almost all of the flights operated by the applicant. The Commission was thus wrong to conclude, in paragraph 83 of the contested decision, that 46% of the O&D routes to or from Brussels Airport were operated by Brussels Airlines alone. In reality, according to the applicant, if Brussels Airport were considered substitutable with Charleroi Airport, Brussels Airlines would then have operated alone on only 19% of the routes in question.

28      However, it should be borne in mind that it is not necessary, at the stage of examining the admissibility of the action, to give a definitive ruling on the definition of the market for the services in question and thus on the substitutability of those services or on the competitive relationship between the applicant and the beneficiary. It is sufficient, in principle, for the applicant to show that, prima facie, the grant of the measure at issue leads to a substantial adverse effect on its competitive position (see case-law referred to in paragraphs 19 and 20 above).

29      Therefore, at the stage of examining the admissibility of the action, where the definition of the relevant market is contested on the merits by the applicant, as in the present case, it is sufficient to examine whether the definition of the relevant market put forward by the applicant is plausible, without prejudice to the examination of the substance of that question.

30      In the present case, it must be held that the substitutability of Brussels and Charleroi airports, argued for by the applicant, is prima facie plausible. The applicant and Brussels Airlines were therefore potentially competing on a significant number of O&D routes, as demonstrated by the data produced by the applicant, summarised in paragraph 26 above and the accuracy of which is not disputed by the parties. Nor do the parties dispute that the applicant was the second largest airline, after Brussels Airlines, in the Belgian market, that it experienced significant growth in traffic in that market from 2010 to 2019 and that it envisaged increasing expansion in that market in the future.

31      In addition, it is apparent from paragraph 14 of the contested decision that, in the absence of the measure at issue, the SN Group would have encountered serious financial difficulties and an acute shortage of liquidity, or even risked becoming insolvent.

32      The factors set out in paragraphs 26 to 31 above support the conclusion that the applicant has demonstrated to the requisite legal standard that the granting of the measure at issue was, prima facie, liable to have a substantial adverse effect on its competitive position on the market, by causing, inter alia, a loss of an opportunity to make a profit or a less favourable development than would have been the case without such a measure (see the case-law referred to in paragraph 23 above).

33      Since the measure in question is liable to have a substantial effect on its competitive position on the market, the applicant is individually concerned by the measure in question.

34      As to the question whether the applicant is directly concerned by the contested decision, it is important to observe 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, judgment of 27 April 1995, ASPEC and Others v Commission, T‑435/93, EU:T:1995:79, paragraphs 60 and 61), as is the case in this instance.

35      Accordingly, the applicant is entitled to challenge the merits of the contested decision.

B.      Substance

1.      The first plea, alleging misuse of powers and misapplication of the Temporary Framework

36      By its first plea, which is divided into two parts, the applicant submits, in essence, that the Commission misused its powers and that it misapplied several provisions of the Temporary Framework as regards, first, the subsidised loan and, secondly, the recapitalisation measure.

(a)    The first part of the first plea, alleging misuse of powers and misapplication of the Temporary Framework regarding the subsidised loan

37      According to the applicant, the subsidised loan was in fact a recapitalisation measure, governed by the conditions and guarantees provided for in Section 3.11 of the Temporary Framework. It points out, in particular, that at the time of the adoption of Commission Decision C(2020) 4372 final of 25 June 2020 on State aid SA (57153) - Germany - COVID-19 - Aid to Lufthansa (‘the DLH decision’), the Kingdom of Belgium was to grant the SN Group liquidity support of EUR 250 million and a loan of EUR 40 million. Subsequently, almost all of the amount of the recapitalisation measure was transformed into a loan in order to bypass the conditions laid down in Section 3.11.6 of the Temporary Framework applicable to recapitalisation measures. In addition, there are other indications that provision was made for conversion of the subsidised loan into capital as soon as the measure at issue was granted.

38      Thus, the Commission allegedly misused its powers and misapplied the Temporary Framework.

39      The Commission, supported by the Kingdom of Belgium and Brussels Airlines, disputes the applicant’s arguments.

(1)    Misapplication of the Temporary Framework regarding the subsidised loan

40      Section 3.3 of the Temporary Framework, entitled ‘Aid in the form of subsidised interest rates for loans’, lays down the conditions governing that type of aid measure.

41      Section 3.11.3 of the Temporary Framework, entitled ‘Types of recapitalisation measures’, contains point 52, which lists the recapitalisation measures that Member States may take in the context of the COVID-19 pandemic, namely equity instruments, in particular the issuance of new common or preferred shares, and instruments with an equity component (referred to as ‘hybrid capital instruments’), in particular profit participation rights, silent participations and convertible secured or unsecured bonds.

42      The Commission stated in particular in paragraph 23 of the contested decision that the subsidised loan fell within the scope of Section 3.3 of the Temporary Framework. In paragraph 41 of the contested decision, the Commission found that the maximum amount of the subsidised loan was EUR 287.1 million and that it had to be repaid, plus interest, by 31 July 2026 at the latest. The Commission stated in paragraph 45 of the contested decision that the amount of the subsidised loan took priority over ordinary equity and all other loans.

43      It should be noted that the applicant does not contest those facts and does not allege that the conditions set out in Section 3.3 of the Temporary Framework were infringed in the present case. However, it maintains that that loan was, in reality, a recapitalisation measure, which therefore had to be examined in the light not of Section 3.3 of that framework but of Section 3.11 thereof.

44      It should be noted, however, as the Commission, the Kingdom of Belgium and Brussels Airlines have rightly submitted, that the subsidised loan had neither the characteristics nor the form of a recapitalisation measure within the meaning of point 52 of the Temporary Framework, the content of which is set out in paragraph 41 above, given that the subsidised loan was a claim which had to be repaid in full at the maturity date in 2026 and that that loan was not convertible into equity at the time when the contested decision was adopted.

45      Consequently, the Commission was right to examine the subsidised loan in the light of the requirements set out in Section 3.3 of the Temporary Framework and not in the light of the requirements set out in Section 3.11 of that framework.

46      The other arguments put forward by the applicant do not call that conclusion into question.

47      First, as regards the argument that, at the time of the adoption of the DLH decision, the State aid envisaged by the Kingdom of Belgium in favour of the SN Group had a different composition from that notified to the Commission in the context of the procedure that gave rise to the contested decision, it should be recalled that the DLH decision did indeed state, in paragraph 6(iv), that it was envisaged, as part of the aid package to airlines controlled by DLH, to grant ‘EUR 250 million liquidity support to Brussels Airlines … in the form of “profit sharing certificates” that are considered as equity under Belgian accounting standards (but not under international accounting standards), and a EUR 40 million short term loan provided by Belgium to Brussels Airlines … under section 3.3 of the Temporary Framework’.

48      However, as the Commission, the Kingdom of Belgium and Brussels Airlines have correctly pointed out, it is for the Court to examine the legality of the contested decision, which is based on the measure at issue as notified. The Commission was therefore right to disregard a proposed State aid measure which was never notified or implemented as such. It should be noted that the State which notifies an aid measure is free to decide on the form of the aid and the Commission starts its examination under Article 108 TFEU on the basis of the notified measure.

49      Secondly, the applicant rightly points out that, according to paragraph 51 of the contested decision, the parties to the stabilisation agreement, concluded when the measure at issue was granted, undertook to begin discussions in good faith as to a possible conversion of the subsidised loan into capital. However, it must be stated that the terms and the possible implementation of such a conversion had not been agreed at the time when the contested decision was adopted. It was therefore a hypothetical and uncertain prospect. As the Commission found in that paragraph, at the time when it was adopted, the subsidised loan was not convertible into equity.

50      Moreover, it is clear from paragraph 51 of the contested decision that the conversion option was not part of the notified measure and that, if that conversion were to be carried out, it would be for the Kingdom of Belgium to notify it to the Commission as a new aid measure.

51      Thirdly, the fact that DLH pledged its shares in SN Airholding as collateral for the subsidised loan, instead of other forms of collateral such as a pledge of aircraft, does not mean that the subsidised loan was in fact a recapitalisation instrument within the meaning of the Temporary Framework. No provision of that framework governs the choice of the type of collateral which may be attached to a loan at subsidised interest rates. Moreover, Brussels Airlines states, without being challenged by the applicant, that it is not the owner of the aircraft that it uses and that those aircraft cannot therefore be burdened as collateral for the subsidised loan. In any event, the form of collateral is not decisive for the classification of the subsidised loan as a loan at subsidised interest rates within the meaning of the Temporary Framework.

52      The applicant’s argument that that form of collateral is not appropriate since its enforcement occurs only at the end of a period of six months after the expiry of the deadline for repayment is also unconvincing. According to the Commission, during that six-month period, DLH still has the possibility of repaying the loan in place of the SN Group in order to avoid enforcement of the pledge, which reduces the chances of such enforcement and of the Belgian State’s subsequent entry into the capital of SN Airholding.

53      Moreover, the applicant does not substantiate the claim that the subsidised loan will never be repaid and, therefore, that the conversion of the loan into capital at the end of its maturity period is already certain.

54      Fourthly, the applicant complains that the Commission failed to assess together all the characteristics of the measure at issue consisting of the subsidised loan and the recapitalisation measure.

55      It should be noted in that regard that the Temporary Framework contains separate criteria as regards, first, the assessment of loans at subsidised interest rates, such as the subsidised loan, set out in Section 3.3 of that framework and, secondly, the assessment of the recapitalisation measures set out in Section 3.11 of that framework. Consequently, the Commission could, without committing an error of law, apply the relevant provisions of the Temporary Framework to each of the components of the measure at issue.

56      That said, in the contested decision, the Commission also correctly took into account the combined impact of the two components of the measure at issue, in particular with a view to the application of point 49 of the Temporary Framework.

57      Indeed, in order to determine whether a beneficiary meets the eligibility conditions for a recapitalisation measure, set out in point 49 of the Temporary Framework, it is necessary to take into account its overall financial situation. Thus, it is apparent from the wording of point 49(a) of that framework, inter alia, that, ‘without the State intervention the beneficiary would go out of business or would face serious difficulties to maintain its operations’. On the one hand, in order to determine whether a beneficiary would go out of business or would face serious difficulties to maintain its operations, it is necessary to take into account its overall and real financial situation, including the need to have recourse to another form of aid, such as a subsidised loan. On the other hand, the reference to ‘State intervention’ is intended to cover all forms of State intervention.

58      Similarly, the criterion of ‘not [being] able to find financing on the markets [on] affordable terms’ under point 49(c) of the Temporary Framework involves an analysis of the overall situation of a beneficiary and therefore, where appropriate, of the combined impact of other components of the aid measure concerned.

59      By contrast, as regards the points of the Temporary Framework which concern specific and concrete aspects of a recapitalisation measure, such as its amount or its remuneration, compliance with those aspects can be assessed only in relation to the recapitalisation measure taken as such. The applicant cannot therefore validly complain that the Commission verified compliance with those other rules by taking into account only the recapitalisation measure. That is the case, in particular, with point 72 of the Temporary Framework, the scope of which is expressly limited to recapitalisation measures of more than EUR 250 million.

60      The applicant’s argument cannot therefore succeed.

61      Fifthly, according to the applicant, the subsidised loan did not meet the objective pursued by the measure at issue, in accordance with paragraph 16 of the contested decision, of restoring the viability of the SN Group and was motivated only by practical reasons, such as time constraints.

62      It should be noted, in that regard, that, according to point 26 of the Temporary Framework, which appears in Section 3.3, entitled ‘Aid in the form of subsidised interest rates for loans’, that type of aid is intended to ‘ensure access to liquidity to undertakings facing a sudden shortage’. As the Commission pointed out in paragraph 14 of the contested decision, the applicant was precisely in such a situation at the time when the measure at issue was notified. It cannot therefore be inferred that the subsidised interest rate loan instrument was not appropriate to remedy the applicant’s financial difficulties.

63      The same is true of the fact, relied on by the applicant, that the subsidised loan instrument was used for practical reasons, such as the timing considerations. The Kingdom of Belgium explained, in that regard, that another composition of the measure at issue, namely a larger recapitalisation, would have been conceivable, but that its implementation would have required a substantial change in Brussels Airlines’ ownership structure and an estimate of the value of that company according to accounting standards, which would have taken longer to implement. In the light of the urgency caused by the COVID-19 pandemic, the Kingdom of Belgium opted to grant a subsidised loan. Thus, even if the choice to grant most of the measure at issue in the form of a subsidised loan could be explained, in part, by reasons relating to time constraints, that does not call into question its classification as a loan.

64      In any event, the applicant’s line of argument is not sufficient to conclude that the subsidised loan can be regarded as a recapitalisation measure within the meaning of point 52 of the Temporary Framework, since it does not correspond to either of the two types of recapitalisation measures defined therein.

65      Sixthly, the fact that the SN Group is obliged to repay the full amount of the loan as well as interest at the end of the maturity period is not sufficiently conclusive evidence to demonstrate the intention to convert the subsidised loan into capital. In fact, the contracting parties to the loan remain free to determine the manner and time of repayment since the Temporary Framework does not include criteria in this respect. In addition, paragraph 46 of the contested decision provides for the possibility of early repayment of the loan, subject to an additional payment. The repayment period is therefore not relevant for the classification of that component of the measure at issue as a loan within the meaning of the Temporary Framework.

66      Lastly, the complaint alleging infringement of point 72 of the Temporary Framework cannot succeed either. That paragraph falls within Section 3.11.6 on recapitalisation measures. It should be noted that the subsidised loan comes under Section 3.3 of the framework and not Section 3.11. In that regard, it is appropriate to refer to paragraph 59 above, which states that, for the purposes of applying point 72 of the Temporary Framework, only the recapitalisation measure should be examined.

67      Accordingly, the applicant has not established that the Commission infringed Sections 3.3 and 3.11 of the Temporary Framework by not classifying the subsidised loan as a recapitalisation measure within the meaning of that framework.

(2)    The complaint alleging misuse of powers by the Commission

68      As regards the complaint that the Commission misused its powers, in so far as it did not find, in the contested decision, that the subsidised loan was, in reality, a recapitalisation measure subject, inter alia, to the conditions laid down in Section 3.11.6 of the Temporary Framework, it must be borne in mind that, according to settled case-law, a measure is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence, to have been taken with the exclusive or main purpose of achieving an end other than that stated (see judgment of 15 May 2008, Spain v Council, C‑442/04, EU:C:2008:276, paragraph 49 and the case-law cited).

69      It must be held, in the present case, and in the light of the analysis carried out in paragraphs 40 to 67 above, that the applicant has not demonstrated, on the basis of objective, relevant and consistent evidence, that, in adopting the contested decision, the Commission sought to achieve aims other than that of not raising objections to an aid measure which had the objective of restoring the viability of Brussels Airlines and remedying a serious disturbance in the Belgian economy. The applicant’s argument relating to misuse of powers cannot therefore be accepted.

70      The first part of the first plea must therefore be rejected.

(b)    The second part of the first plea, alleging misuse of powers and misapplication of the Temporary Framework regarding the recapitalisation measure

71      The applicant claims that the Commission misused its powers and erred in the application of the Temporary Framework with regard to the recapitalisation measure. The second part is divided into six complaints. First, the Commission failed to demonstrate that the SN Group was eligible for the measure at issue within the meaning of point 49(a) to (c) of the Temporary Framework. Secondly, the Commission failed to assess whether there were other more appropriate and less distortive measures within the meaning of point 53 of the Temporary Framework. Thirdly, the Commission failed to demonstrate to the requisite legal standard that the amount of the recapitalisation measure was proportionate and thus infringed point 54 of the Temporary Framework. Fourthly, the recapitalisation measure is not accompanied by safeguards against aggressive commercial expansion within the meaning of point 71 of the Temporary Framework. Fifthly, the Commission did not carry out an assessment of the market power of the SN Group in breach of point 72 of that framework. Sixthly, the Commission misused its powers.

72      The Commission, the Kingdom of Belgium, the Federal Republic of Germany and Brussels Airlines dispute those arguments.

(1)    The complaint alleging infringement of point 49 of the Temporary Framework

73      As regards the first complaint, the applicant puts forward three arguments concerning the eligibility of the SN Group for the recapitalisation measure, alleging infringement of the conditions laid down in point 49 (a) to (c) of the Temporary Framework.

74      Point 49 of the Temporary Framework set out in Section 3.11.2, entitled ‘Eligibility and entry conditions’, lists the conditions that a recapitalisation measure granted in the context of the COVID-19 pandemic must meet in order for the potential beneficiary to be considered eligible to benefit from it.

75      In the first place, the applicant submits, in essence, that the Commission has not demonstrated that, in the absence of the recapitalisation measure, the SN Group would necessarily have gone out of business or would have faced serious difficulties to maintain its operations within the meaning of point 49(a) of the Temporary Framework. It emphasises that the amount of the recapitalisation measure is minimal compared with the total amount of the measure at issue and the aid measures granted to the Lufthansa group as a whole. Paragraphs 18 and 101 of the contested decision merely set out the overall financing needs of the SN Group at the time when the measure at issue was granted and do not justify the need for the recapitalisation measure considered individually.

76      The Commission, supported by the Kingdom of Belgium and Brussels Airlines, disputes those arguments.

77      Point 49(a) of the Temporary Framework provides that a recapitalisation measure in the context of the COVID-19 pandemic must fulfil various conditions and, in particular, that without the State intervention, the beneficiary would go out of business or face serious difficulties to maintain its operations. According to the same point of the Temporary Framework, such difficulties may be shown by the deterioration of, in particular, the beneficiary’s debt to equity ratio or similar indicators.

78      In paragraphs 17 and 99 of the contested decision, the Commission stated that the deterioration in the capital of the SN Group seriously affected its liquidity and threatened its short-term solvency. That finding was based on internal documents, provided by the Belgian Government, which showed a significant deterioration in the debt-to-equity ratio of the SN Group during the six months preceding the adoption of the contested decision, compared with its situation at the end of 2019. Following the adoption of passenger travel restrictions, in the context of the COVID-19 pandemic, Brussels Airlines was forced to cancel, on average, 80 to 90% of its flights between March and June 2020. The occupation percentage of the few flights that had not been cancelled fell from 80-90% to 50-60%.

79      In addition, the Commission stated, in paragraphs 13 and 14 of the contested decision, that the period from mid-June 2020 onwards was marked by a lifting of certain travel restrictions and that the applicant had begun to resume its activities. However, given the uncertain situation and due to a sharp drop in demand, flights operated in June 2020 represented less than 10% of the flights operated prior to the COVID-19 crisis in the same month and the flights operated in July 2020 corresponded to between 10% and 20% of the flights normally operated during that period. The resumption of long-haul flights was scheduled for August 2020, but this did not take place. In addition, during that period, the majority of passengers booked their flights at the last minute and used their travel vouchers to pay for their tickets. The applicant’s revenues were therefore limited at the time of the adoption of the contested decision and its financial situation continued to deteriorate.

80      The Commission concluded that the measure at issue made it possible to prevent the SN Group from becoming insolvent and that, therefore, in the absence of an increase in capital, it would have gone out of business.

81      The applicant does not dispute the facts set out in paragraphs 78 and 79 above.

82      In those circumstances, it must be held that the Commission did not infringe point 49(a) of the Temporary Framework.

83      The applicant’s arguments do not call that finding into question.

84      First, the applicant’s argument that the amount of the EUR 2.9 million recapitalisation measure was too low to prevent bankruptcy cannot be accepted. As is apparent from paragraphs 56 to 58 above, it was for the Commission to assess the combined impact of the two components of the measure at issue, namely the subsidised loan and the recapitalisation measure. Therefore, it is not necessary that the recapitalisation measure alone should remedy the financial difficulties of the SN Group. The purpose of the two components of the measure at issue was to provide the SN Group with sufficient liquidity to be able to continue its air transport services during the period when the COVID-19 pandemic was seriously disrupting the entire Belgian economy and prevent a possible bankruptcy of the SN Group from further disrupting that economy. The relatively small amount of the recapitalisation measure does not therefore call that conclusion into question.

85      Secondly, as regards the argument that the Commission has not demonstrated that another measure aimed at targeting the beneficiary’s liquidity shortages could not be envisaged, in particular the possibility of obtaining financing on the market, that argument overlaps with the issue raised in the context of the argument alleging infringement of paragraph 49(c) of the Temporary Framework, which will be examined below.

86      In the second place, the applicant complains, in essence, that the Commission infringed point 49(b) of the Temporary Framework, in that it did not demonstrate the systemic importance of the SN Group for the Belgian economy.

87      The Commission, supported by the Kingdom of Belgium, the Federal Republic of Germany and Brussels Airlines, disputes those arguments.

88      Point 49(b) of the Temporary Framework provides that the recapitalisation measure must be in the common interest. The existence of such a common interest may be demonstrated if the measure at issue is intended to avoid social hardship and market failure due to significant loss of employment, the exit of an innovative company, the exit of a systemically important company, the risk of disruption to an important service, or similar situations duly substantiated by the Member State concerned.

89      In paragraph 100 of the contested decision, the Commission states that the SN Group was of systemic importance for the Belgian economy in several respects, inter alia, for employment, connectivity and international trade and that, therefore, it was in the common interest to intervene. In particular, first, it is apparent from paragraph 83 of the contested decision that the SN Group is a major employer with 4 200 employees, a number that reaches 10 000 considering those employed indirectly and working for the suppliers and sub-suppliers of the SN Group or for service providers related to the activity of the SN Group. Secondly, with regard to the flights operated by Brussels Airlines and its importance for Belgium’s connectivity and economy, it handled 40% of the traffic departing from and arriving at Brussels Airport and 46% of the routes operated by Brussels Airlines were not operated by any other air carrier. In addition, Brussels Airlines carried 10 million passengers to or from Belgium in 2019. Finally, if Brussels Airlines had disappeared, Brussels Airport would have lost its status as an international hub.

90      Furthermore, the Commission stated, in paragraph 36 of the contested decision, that Brussels was the capital of Belgium and the second largest diplomatic centre in the world after Washington DC (United States). In order to maintain that status, the Belgian capital should be served by a company capable of meeting customer demands in terms of quality of service and the number and frequency of connections with as many capitals as possible. In that regard, it is apparent from paragraph 34 of the contested decision that, before the COVID-19 pandemic, Brussels Airlines served 112 destinations.

91      It should be noted that the applicant does not dispute those data, but considers, in essence, that they are not sufficient to demonstrate the systemic importance of the SN Group for the Belgian economy. According to the applicant, the concept of ‘a systemically important company’ within the meaning of point 49(b) of the Temporary Framework must be interpreted as referring to undertakings whose failure would lead to the collapse of the entire sector in which they operate.

92      However, the interpretation of the concept of ‘systemic importance’ advocated by the applicant cannot succeed. There is nothing in the wording of point 49(b) of the Temporary Framework to suggest that only undertakings whose exit from the market would lead to the collapse of an entire sector are eligible for aid. Furthermore, a reading of point 49(b) as a whole, and in particular of the examples of cases in which it is in the common interest to intervene, such as the risk of social hardship or significant loss of employment or disruption to an important service, shows that the interpretation put forward by the applicant is too restrictive.

93      In support of that interpretation, the applicant refers to the Commission’s decision-making practice in the financial sector and to the State aid rules applicable in that sector.

94      In that regard, it must be borne in mind that the legality of the contested decision must be assessed solely in the context of Article 107(3)(b) TFEU and the Temporary Framework and not in the context of an alleged earlier decision-making practice (see, to that effect, judgment of 27 February 2013, Nitrogénművek Vegyipari v Commission, T‑387/11, not published, EU:T:2013:98, paragraph 126 and the case-law cited), nor in the context of the Communication of 30 July 2013 from the Commission on the application, from 1 August 2013, of State aid rules to support measures in favour of banks in the context of the financial crisis (OJ 2013 C 216, p. 1) or Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ 2013 L 176, p. 338), cited by the applicant, which are not applicable in the present case.

95      The applicant’s other arguments must also be rejected.

96      First, contrary to what it maintains, it should be noted that the Commission was under no obligation to examine whether Brussels Airlines could easily be replaced by other airlines. Such a requirement is not laid down in point 49(b) of the Temporary Framework, which is alleged to have been infringed.

97      In any event, the applicant’s argument that the Commission was wrong to consider that 46% of the routes to or from Brussels Airport were operated solely by Brussels Airlines and, therefore, disregarded the substitutability of Brussels Airlines’ routes for those operated by other airlines, such as the applicant, to and from Charleroi Airport, cannot succeed. According to the applicant, if the Commission had also taken into account the O&D routes to and from the latter airport, Brussels Airlines operated only 19% of those routes on its own.

98      However, even if some of the routes operated by the applicant and by Brussels Airlines were substitutable, the fact remains that a considerable proportion of the routes were operated by Brussels Airlines alone.

99      Secondly, the analogy with the Guidelines on State aid for rescuing and restructuring non-financial undertakings in difficulty (OJ 2014 C 249, p. 1), by which the applicant seeks to impose on the Commission an obligation to verify whether the beneficiary had adopted internal measures to reduce its assets, must also be rejected. In the context of State aid for rescuing and restructuring, the objective of State support is to remedy the pre-existing internal difficulties of the beneficiary concerned, which is an ‘undertaking in difficulty’. Thus, rescue aid is intended to keep the beneficiary afloat for the short period needed to work out a restructuring or liquidation plan, which normally entails reductions in or abandonment of the affected activities (paragraphs 26 to 30 of those guidelines). By contrast, the beneficiary of recapitalisation aid in the context of COVID-19 did not play any role in the events that undermined its viability and therefore does not necessarily need restructuring to overcome its temporary difficulties caused by the COVID-19 pandemic.

100    It follows that the Commission did not infringe point 49(b) of the Temporary Framework.

101    In the third place, the applicant claims, in essence, that the Commission infringed point 49(c) of the Temporary Framework in finding that the SN Group was unable to finance itself on the markets on affordable terms and that, in that regard, it failed to take account of other financing possibilities.

102    The Commission, supported by the Kingdom of Belgium and Brussels Airlines, disputes those arguments.

103    According to point 49(c) of the Temporary Framework, in order to be eligible for a recapitalisation measure, the beneficiary must inter alia be unable to find financing on the markets on affordable terms.

104    In paragraphs 18 and 101 of the contested decision, the Commission concluded that that condition was satisfied on the ground, inter alia, that the SN Group was unable to finance itself on the markets within a reasonable time frame in view of the uncertainty on the financial markets caused by the consequences of the COVID-19 pandemic for the aviation sector. It is also apparent from paragraph 18 of the contested decision, the content of which was partially redacted from the public version of that decision, that the Commission also took into account, for that purpose, the fact that certain assets of the SN Group were no longer available.

105    As is apparent from paragraphs 56 to 58 above, it was necessary, for the purposes of applying point 49 of the Temporary Framework, to assess the combined impact of the various components of the measure at issue. In the contested decision, the Commission did not assess the amount of the EUR 2.9 million recapitalisation measure alone in order to answer the question whether the SN Group was unable to finance itself on the markets on affordable terms, given that the SN Group had at the same time obtained the subsidised loan and was therefore indebted.

106    In addition, unlike the circumstances that gave rise to Commission Decision C(2020) 4372 final of 25 June 2020 on the State aid scheme SA.57153 (2020/N) implemented by Germany, which is the subject of joined cases registered under numbers T‑34/21 and T‑87/21 (Ryanair and Condor Flugdienst v Commission (Lufthansa; COVID-19)), in the present case, first, the beneficiary’s parent company had given guarantees to obtain the subsidised loan at issue and, secondly, it is not disputed that the SN Group did not have its own aircraft that could provide additional collateral in the event of non-repayment of the recapitalisation measure. The assertion that the applicant’s slots could be pledged in order to be able to raise funds on the market is not sufficiently substantiated. The same is true of the applicant’s remark that the amount of EUR 2.9 million could have been raised by means of online crowdfunding.

107    Financing on the markets was all the more difficult to achieve because the exceptional circumstances linked to the COVID-19 pandemic had had the inevitable consequence of causing the investment climate in the aviation sector to deteriorate.

108    As noted in paragraph 78 above, Brussels Airlines was forced to cancel, on average, 80 to 90% of its flights between March and June 2020. The occupation percentage of the few flights that had not been cancelled fell from 80-90% to 50-60%.

109    Finally, the allegation that other airlines financed themselves on the market, assuming it were established, does not call into question the Commission’s reasoning, since the applicant has not established that those other airlines were in a financial situation comparable to that of the beneficiary of the measure at issue.

110    Accordingly, the applicant has not demonstrated that the Commission failed to comply with the conditions laid down in point 49(a) to (c) of the Temporary Framework.

111    Consequently, this complaint must be rejected as unfounded.

(2)    The complaint alleging infringement of point 53 of the Temporary Framework

112    The applicant claims, in essence, that the Commission infringed point 53 of the Temporary Framework, in that it failed to assess whether the recapitalisation measure was the most appropriate and the least distortive to competition. Thus, the Commission did not compare the available recapitalisation instruments and did not analyse the distortions of competition caused by the measure at issue or by ‘other possible aid instruments’.

113    The Commission, supported by the Federal Republic of Germany, the Kingdom of Belgium and Brussels Airlines, disputes the applicant’s arguments.

114    Point 53 of the Temporary Framework states:

‘The State intervention can take the form of any variation [of those] instruments, or a combination of equity and hybrid capital instruments. … The Member State must ensure that the selected recapitalisation instruments and the conditions attached thereto are appropriate to address the beneficiary’s recapitalisation needs, while at the same time being the least distortive to competition.’

115    In paragraphs 18 and 106 of the contested decision, the Commission described the recapitalisation measure at issue, explaining that it was a hybrid instrument taking the form of profit participation certificates. It noted that that instrument allowed the Kingdom of Belgium to intervene in the share capital of Brussels Airlines in order to control the planned restructuring of Brussels Airlines, without there being any need to modify its shareholding structure. The recapitalisation measure was therefore a necessary precondition for the grant of the subsidised loan and was intended to ensure the viability of the SN Group.

116    In addition, according to paragraph 106 of the contested decision, the Kingdom of Belgium, by means of the issue of profit participation certificates, was going to enjoy a certain margin of control over the restructuring of Brussels Airlines. In addition, according to paragraph 56 of the contested decision, the SN Group and DLH were first to repay the subsidised loan in full before the profit participation certificates could be repaid. As the Commission pointed out in paragraph 75 of its defence, without being contradicted, that repayment sequencing encouraged the beneficiary to repay the subsidised loan in full as soon as possible.

117    In the present case, in line with the Commission’s arguments, it must be pointed out that a recapitalisation measure and the conditions attached thereto may be regarded as appropriate to meet the beneficiary’s recapitalisation needs, while distorting competition as little as possible, within the meaning of point 53 of the Temporary Framework, provided that they meet the various requirements laid down for that purpose in that framework relating to the amount of the recapitalisation measure, remuneration and exit of the State, governance and prevention of undue distortions of competition and the exit strategy of the State from the participation resulting from the recapitalisation measure. The reference, in point 53 of the Temporary Framework, to the ‘conditions attached [to the measure at issue]’ refers to requirements, such as those mentioned in the preceding sentence, the purpose of which is precisely to ensure that the recapitalisation measure and the conditions attached to it do not exceed what is appropriate to meet the recapitalisation needs of the beneficiary, while at the same time distorting competition as little as possible. Therefore, if the above requirements are met, the selected recapitalisation instrument must be considered to comply with point 53 of the Temporary Framework.

118    Accordingly, the present complaint is not independent of the arguments raised by the applicant in the context of the other complaints in its first plea. Thus, in the context of the third complaint in the second part of that plea, it submits that the Commission infringed point 54 of the Temporary Framework, pursuant to which the recapitalisation measure ‘must not exceed the minimum needed to ensure the viability of the beneficiary’. In the context of the fourth complaint in the second part of the first plea, the applicant claims that the Commission infringed point 71 of the Temporary Framework by failing to provide safeguards against aggressive commercial expansion by the beneficiary. In the fifth complaint in that part, the applicant submits that the Commission also failed to ensure compliance with point 72 of the Temporary Framework in that additional measures to preserve effective competition on the markets concerned were not provided for. The merits of the present complaint are therefore dependent on the analysis of those other complaints.

119    In any event, first, as regards the argument that the control of the SN Group sought by the Kingdom of Belgium, in order to intervene and guide the restructuring, could have been achieved by means of other measures, such as changing the ownership structure of Brussels Airlines, it should be noted, as the Commission did in paragraph 73 of the defence, that such intervention would have required the issue of new shares and thus a complex assessment of the company’s value. The Commission was therefore right to consider that such an intervention would have required more time, whereas the impact of the COVID-19 pandemic on the beneficiary required the Belgian State to intervene with some urgency.

120    Secondly, as regards the argument that the profit sharing certificates do not confer any voting rights and that contractual agreements also enabled the Kingdom of Belgium to obtain the same governance rights, it must be pointed out that the applicant fails to recognise the role played by profit sharing certificates in the present case.

121    Thus, as the Commission stated in paragraph 123 of the contested decision, without being contradicted, the interest rate for profit sharing certificates increased over the years, which made that means of financing increasingly costly and encouraged Brussels Airlines, SN Airholding or DLH to repay the profit sharing certificates as soon as possible. However, such repayment was conditional upon prior repayment of the subsidised loan in its entirety. Furthermore, as the Commission considered in paragraphs 63 and 64(d) of the contested decision, the fact that the profit sharing certificates remained in place until the repayment of the subsidised loan meant that Brussels Airlines, SN Airholding and DLH were required to comply with the behavioural commitments attached to the recapitalisation measure. That importance of those certificates is not called into question by the fact that it could have been contractually agreed that DLH would appoint two members of the board of SN Airholding proposed by SFPI-FPIM, as mentioned in footnote 20 to the contested decision. The same applies to the fact, even if it were established, that the powers of those members were symbolic and would not have a decisive impact on SN Airholding’s decisions.

122    Moreover, according to the case-law, the Commission is not required to take a decision on every possible alternative aid measure. It is not required to prove, positively, that no other conceivable aid measure, which by definition would be hypothetical, would be more appropriate and less distortive to competition (see, to that effect and by analogy, judgment of 6 May 2019, Scor v Commission, T‑135/17, not published, EU:T:2019:287, paragraph 94 and the case-law cited).

123    The present complaint must therefore be rejected as unfounded.

(3)    The complaint alleging infringement of point 54 of the Temporary Framework

124    The applicant claims, in essence, that the Commission infringed point 54 of the Temporary Framework, in that it failed to assess whether the recapitalisation measure ensured the viability of the SN Group.

125    The Commission, supported by the Federal Republic of Germany, the Kingdom of Belgium and Brussels Airlines, disputes those arguments.

126    According to point 54 of the Temporary Framework, in order to ensure proportionality of the aid, the amount of the COVID-19 recapitalisation must not exceed the minimum needed to ensure the viability of the beneficiary, and should not go beyond restoring the capital structure of the beneficiary to the one predating the COVID-19 outbreak, namely the situation on 31 December 2019.

127    It should be noted that the applicant’s line of argument is based on a misreading of point 54 of the Temporary Framework. That provision does not lay down a minimum threshold for the amount of the recapitalisation measure that is needed to ensure the viability of the beneficiary, but only a maximum limit. The fact that, in addition to the recapitalisation measure, the SN Group still needed other aid instruments in order to ensure its viability is therefore irrelevant.

128    The present complaint must therefore be rejected as unfounded.

(4)    The complaint alleging infringement of point 71 of the Temporary Framework

129    The applicant claims, in essence, that the contested decision does not provide for safeguards against aggressive commercial expansion by the beneficiary in breach of point 71 of the Temporary Framework.

130    The Commission, supported by the Kingdom of Belgium and Brussels Airlines, disputes that line of argument, essentially reiterating the grounds of the contested decision.

131    Pursuant to point 71 of the Temporary Framework, in order to prevent undue distortions of competition, beneficiaries must not engage in aggressive commercial expansion financed by State aid or made possible by taking excessive risks. As a general principle, the smaller the equity stake of the Member State and the higher the remuneration, the less there is a need for safeguards.

132    In paragraph 126 of the contested decision, the Commission considered that the conditions laid down in point 71 of the Temporary Framework were met, stating, inter alia, that the business plan of Brussels Airlines envisaged a prudent and progressive return to its standard volume of activity. The Commission also examined the timing of that return, according to that business plan, concluding that Brussels Airlines would only resume its standard volume of activity prudently and progressively.

133    It should be noted that, in so far as that plan is based on the prospects for the development of the beneficiary’s planned or expected activities, the Commission was entitled to base its analysis of the risk of aggressive commercial expansion financed by the aid on the assessment of that plan. The fact that that analysis demonstrated that the beneficiary envisaged only a prudent and progressive return to its volume of activities before the outbreak of the COVID-19 pandemic tends to demonstrate that it had not planned to engage in aggressive commercial expansion financed by the aid, as the Commission rightly found.

134    Furthermore, it should be noted that, contrary to what the applicant claims, the pace of recovery of the SN Group was specified in paragraph 41 of the contested decision, in that the final maturity date of the subsidised loan was 31 July 2026. It is also true that the Kingdom of Belgium imposed behavioural commitments on the SN Group, aligned with the Temporary Framework, such as to prevent aggressive commercial expansion. In that regard, recital 63 of the contested decision states, for example, that the amount of the recapitalisation measure could not be used for commercial advertising campaigns.

135    It should be recalled that point 74 of the Temporary Framework states that as long as at least 75% of the recapitalisation measures have not been repaid, beneficiaries shall be prevented from acquiring a more than 10% stake in competitors or other operators in the same line of business, including upstream and downstream operations. It is not disputed that that obligation is imposed on the beneficiary and that its objective is also to prevent it from engaging in aggressive commercial expansion financed by the aid.

136    Accordingly, it must be concluded that the applicant has not demonstrated that the Commission infringed point 71 of the Temporary Framework. Its complaint must therefore be rejected as unfounded.

(5)    The complaint alleging infringement of point 72 of the Temporary Framework

137    The applicant claims, in essence, that the Commission infringed point 72 of the Temporary Framework.

138    The Commission, supported by the Kingdom of Belgium and Brussels Airlines, disputes that argument.

139    Pursuant to point 72 of the Temporary Framework, if the beneficiary of a COVID-19 recapitalisation measure above EUR 250 million is an undertaking with significant market power on at least one of the relevant markets in which it operates, Member States must propose additional measures to preserve effective competition in those markets. In proposing such measures, Member States may in particular offer structural or behavioural commitments provided for in the Commission Notice on remedies acceptable under Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1) and under Commission Regulation (EC) No 802/2004 of 7 April 2004 implementing Regulation No 139/2004 (OJ 2004 L 133, p. 1).

140    As is apparent from paragraph 59 above, for the purposes of the application of point 72 of the Temporary Framework, only the recapitalisation measure has to be assessed individually. It should be noted that the recapitalisation measure concerned an amount of less than EUR 250 million, so that point 72 of the Temporary Framework is not applicable in the present case. The present complaint must therefore be rejected.

(6)    The complaint alleging misuse of powers by the Commission

141    In accordance with the case-law cited in paragraph 68 above and having regard to paragraphs 73 to 140 above, it must be held that the applicant has not demonstrated, on the basis of objective, relevant and consistent evidence, that, by adopting the contested decision, the Commission misused its powers in its assessment of the recapitalisation measure. The present complaint must therefore be rejected.

142    Accordingly, the second part of the first plea must be rejected and, consequently, the first plea must be rejected in its entirety.

2.      Second plea in law, alleging infringement of Article 107(3)(b) TFEU

143    The applicant claims, in essence, that the Commission infringed Article 107(3)(b) TFEU. The second plea is divided into two parts.

144    First, the applicant claims that an individual measure in favour of the SN Group is not appropriate to remedy a serious disturbance in the Belgian economy. It submits that, with the exception of the banking sector, there are very few cases of decisions authorising measures under Article 107(3)(b) TFEU relating to individual undertakings.

145    Secondly, the applicant claims that the Commission is required to balance the beneficial effects of the aid in terms of achievement of the objectives set out in Article 107(3)(b) TFEU against its adverse effects on trading conditions and the maintenance of undistorted competition. The Commission failed to perform the balancing test and accordingly erred in law and committed a manifest error of assessment of the facts, which justifies annulment of the contested decision. According to the applicant, the Temporary Framework does not exonerate the Commission from performing a balancing test for the measure at issue or for each individual aid measure notified. On the contrary, Section 1.2 of the Temporary Framework requires the Commission to perform such a test.

146    The Commission, supported by the Kingdom of Belgium and Brussels Airlines, disputes the applicant’s arguments.

(a)    The first part, alleging that the measure at issue is inappropriate to remedy a serious disturbance in the Belgian economy

147    In the first place, it must be noted that, under Article 107(3)(b) TFEU, aid to remedy a serious disturbance in the economy of a Member State may be considered to be compatible with the internal market.

148    Article 107(3)(b) TFEU is a derogation from the general principle laid down in Article 107(1) TFEU that State aid is incompatible with the internal market. It is therefore to be interpreted strictly (see judgment of 9 April 2014, Greece v Commission, T‑150/12, not published, EU:T:2014:191, paragraph 146 and the case-law cited). Article 107(1) TFEU states that any aid granted by a Member State or through State resources is incompatible with the internal market ‘in any form whatsoever’. Article 107(3)(b) TFEU therefore applies to individual aid (see judgment of 22 June 2022, Ryanair v Commission (Finnair II; Covid-19), T‑657/20, under appeal, EU:T:2022:390, paragraph 28 and the case-law cited).

149    According to the case-law, the Commission may declare aid to be compatible under Article 107(3) TFEU only if it can establish that that aid contributes to the attainment of one of the intended objectives, something which, under normal market conditions, the recipient undertaking would not achieve by using its own resources. In other words, the measure at issue cannot be declared compatible with the internal market if it brings about an improvement in the financial situation of the recipient undertaking without being necessary to achieve the objective laid down in Article 107(3)(b) TFEU, namely to remedy the serious disturbance in the Belgian economy (see, to that effect, judgment of 14 January 2009, Kronoply v Commission, T‑162/06, EU:T:2009:2, paragraph 65 and the case-law cited).

150    It must be borne in mind that, contrary to the applicant’s submission, Article 107(3)(b) TFEU does not require that the aid in question should be capable, in itself, of remedying the serious disturbance in the economy of the Member State concerned. Once the Commission has established the reality of a serious disturbance in the economy of a Member State, that State may be authorised, if the other conditions laid down in that article are also satisfied, to grant State aid, in the form of aid schemes or individual aid, which help to remedy that serious disturbance. It could therefore involve a number of aid measures, each contributing to that end. Therefore, for an aid measure to be validly based on Article 107(3)(b) TFEU, it cannot be required, in itself, to remedy a serious disturbance in the economy of a Member State (see judgment of 22 June 2022, Ryanair v Commission (Finnair II; Covid‑19), T‑657/20, under appeal, EU:T:2022:390, paragraph 30 and the case-law cited).

151    In those circumstances, the applicant cannot criticise the Commission for having declared that the measure at issue satisfied the conditions laid down in Article 107(3)(b) TFEU, solely on the ground that that measure could not, in itself, remedy the serious disturbance in the economy of Belgium caused by the COVID-19 outbreak (see, to that effect, judgment of 22 June 2022, Ryanair v Commission (Finnair II; Covid-19), T‑657/20, under appeal, EU:T:2022:390, paragraph 31).

152    Inasmuch as the applicant submits that the measure at issue does not remedy the serious disturbance in the Belgian economy, but, on the contrary, aggravates it, the Court must determine whether the Commission was right in stating that that measure contributed to attaining one of the objectives referred to in Article 107(3)(b) TFEU, in accordance with the case-law set out in paragraph 149 above (see judgment of 22 June 2022, Ryanair v Commission (Finnair II; Covid-19), T‑657/20, under appeal, EU:T:2022:390, paragraph 32 and the case-law cited).

153    In the present case, as is apparent from paragraph 42 of the application, the applicant does not dispute that the COVID-19 pandemic led to a serious disturbance in the Belgian economy or that the air transport sector as a whole was particularly affected by the crisis caused by that pandemic.

154    That being so, the applicant claims that the SN Group’s market share was only 28%, whereas its own market share was 24% in 2019. Its exclusion and that of other airlines active on the Belgian market from the scope of the measure at issue weakens its effectiveness.

155    As has been pointed out in paragraph 89 above, the Commission has established to the requisite legal standard the importance of the SN Group for the Belgian economy, as an employer of 4 200 employees directly and having regard to a total of 10 000 jobs, considering the indirect jobs with suppliers and service providers linked to the activity of Brussels Airlines. In addition, 40% of Brussels Airport’s traffic was operated by Brussels Airlines and 46% of the routes to and from Brussels Airport were not operated by any other air carrier. Even if the routes operated from Brussels and Charleroi airports were substitutable, the fact remains that a considerable part of those routes was operated by Brussels Airlines alone. It is also common ground that Brussels Airlines carried 10 million passengers to or from Belgium in 2019 and that it is of great importance to Brussels Airport, since Brussels is the capital of Belgium and a major diplomatic centre.

156    In that context, the Commission was entitled to consider that the bankruptcy or failure of the SN Group was likely to seriously disrupt the Belgian economy due to its major role in national and international connectivity and its economic and social weight for many suppliers and workers in Belgium and conclude that the measure at issue contributed to remedying a serious disturbance in the economy of that country.

157    In the second place, the alleged previous decision-making practice of the Commission relied on by the applicant cannot invalidate that conclusion. In that regard, the applicant relies on previous Commission authorisation decisions under Article 107(3)(b) TFEU concerning individual aid in the banking and railway sectors. According to the applicant, unlike a bank and a railway network manager, the SN Group did not play a systemic role for the economy of the Member State concerned.

158    However, as is apparent from paragraph 94 above, it should be noted that the legality of the contested decision must be assessed solely in the context of Article 107(3)(b) TFEU, and not in the light of an alleged previous decision-making practice of the Commission. In any event, the mere fact that the beneficiary of the aid at issue is neither a bank nor a railway network manager does not permit the inference that it is not important for the Belgian economy or that the measure at issue is not such as to address a serious disturbance in it (judgment of 22 June 2022, Ryanair v Commission (Finnair II; COVID-19), T‑657/20, under appeal, EU:T:2022:390, paragraph 44).

159    The first part of the second plea must therefore be rejected.

(b)    The second part, alleging that the Commission failed to weigh the beneficial effects of the aid against its adverse effects on trading conditions and the maintenance of undistorted competition

160    Under Article 107(3)(b) TFEU, ‘the following may be considered to be compatible with the internal market: … aid … to remedy a serious disturbance in the economy of a Member State’. It follows from the wording of that provision that its authors considered that it was in the interests of the European Union as a whole that one or other of its Member States be able to overcome a major or even an existential crisis which could only have serious consequences for the economy of all or some of the other Member States and therefore for the European Union as a whole. That textual interpretation of the wording of Article 107(3)(b) TFEU is confirmed by comparing it to Article 107(3)(c) TFEU concerning ‘aid to facilitate the development of certain economic activities or of certain economic areas, where such aid does not adversely affect trading conditions to an extent contrary to the common interest’, in so far as the wording of the latter provision contains a condition relating to proof that there is no effect on trading conditions to an extent that is contrary to the common interest, which is not found in Article 107(3)(b) TFEU (see, to that effect, judgment of 22 September 2020, Austria v Commission, C‑594/18 P, EU:C:2020:742, paragraphs 20 and 39).

161    Thus, in so far as the conditions laid down in Article 107(3)(b) TFEU are fulfilled, that is to say, in the present case, that the Member State concerned is indeed faced with a serious disturbance in its economy and that the aid measures adopted to remedy that disturbance are, first, necessary for that purpose and, secondly, appropriate and proportionate, those measures are presumed to be adopted in the interests of the European Union, so that that provision does not require the Commission to weigh the beneficial effects of the aid against its adverse effects on trading conditions and the maintenance of undistorted competition, in contrast to what is laid down in Article 107(3)(c) TFEU. In other words, such a balancing exercise would have no raison d’être in the context of Article 107(3)(b) TFEU, as its result is presumed to be positive. The fact that a Member State manages to remedy a serious disturbance in its economy can only benefit the European Union in general and the internal market in particular (judgment of 19 May 2021, Ryanair v Commission (Spain; Covid-19), T‑628/20, under appeal, EU:T:2021:285, paragraph 67).

162    It must therefore be held that Article 107(3)(b) TFEU does not require the Commission to weigh the beneficial effects of the aid against its adverse effects on trading conditions and the maintenance of undistorted competition, contrary to what is laid down in Article 107(3)(c) TFEU, but only to ascertain whether the aid measure at issue is necessary, appropriate and proportionate in order to remedy the serious disturbance in the economy of the Member State concerned. Accordingly, the applicant’s argument that the obligation to conduct the balancing test results from the exceptional nature of compatible aid, including aid declared compatible under Article 107(3)(b) TFEU, must be rejected. For the same reasons, the applicant is not justified in relying on the judgment of 19 September 2018, HH Ferries and Others v Commission (T‑68/15, EU:T:2018:563, paragraphs 210 to 214), in so far as, in that decision, the General Court did not take into account the consequences of the difference in the wording between Article 107(3)(b) and Article 107(3)(c) TFEU, highlighted by the Court of Justice in the judgment of 22 September 2020, Austria v Commission (C‑594/18 P, EU:C:2020:742, paragraphs 20 and 39) (judgment of 19 May 2021, Ryanair v Commission (Spain; Covid-19), T‑628/20, under appeal, EU:T:2021:285, paragraph 68).

163    Nor may the applicant rely on the obligatory nature of a balancing test on the basis of the Temporary Framework, by arguing that that framework binds the Commission and provides a second basis distinct from the Commission’s obligation in that respect, because such an obligation does not appear in the Temporary Framework. In particular, Section 1.2 of that framework, to which the applicant refers, relating to the ‘the need for close European coordination of national aid measures’, consists of a single paragraph, point 10, which contains no requirements in that regard. Consequently, the applicant cannot rely on that argument (see, to that effect, judgment of 19 May 2021, Ryanair v Commission (Spain; COVID-19), T‑628/20, under appeal, EU:T:2021:285, paragraph 69).

164    For the same reasons, the Commission’s arguments, presented in the alternative, that the Temporary Framework itself contains such a balancing exercise, must be rejected.

165    In those circumstances, there is no need to rule on the plea of illegality raised by the applicant against the Temporary Framework.

166    It follows from the foregoing that the second part of the second plea in law raised by the applicant must be rejected and that the second plea must therefore be rejected.

3.      The third plea in law, alleging infringement of the principles of non-discrimination, freedom to provide services and freedom of establishment

(a)    The first part, alleging breach of the principle of non-discrimination

167    The applicant claims that the measure at issue infringes the principle of non-discrimination. In particular, the applicant argues that the contested decision treated differently the comparable situation of airlines operating routes to and from Belgium by favouring the SN Group without any objective justification. The Commission did not establish either the necessity of granting aid solely to the SN Group or the proportionality of the difference in treatment between the SN Group and the other airlines. It adds that if the aid were allocated to all the airlines that operate in Belgium, on the basis of their market share, the objective of the measure would have been reached with no discrimination.

168    The Commission, supported by the Kingdom of Belgium and Brussels Airlines, disputes those arguments.

169    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).

170    The elements which characterise different situations, and therefore 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).

171    It should also be recalled 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).

172    In the present case, it is not disputed that the other airlines contributed to a certain extent to Belgium’s connectivity and were affected by the pandemic and the resulting travel restrictions. However, as the Commission submits, Member States are under no obligation to grant aid to remedy the serious disturbance in an economy within the meaning of Article 107(3)(b) TFEU. The Republic of Belgium cannot therefore be required to grant aid to all the undertakings that contribute, in some way or other, to the connectivity of its territory.

173    In addition, it should be noted that individual aid, such as that at issue, by definition benefits only one undertaking, to the exclusion of all other undertakings, including those in a situation comparable to that of the recipient of that aid. Consequently, such individual aid, by its nature, brings about a difference in treatment, or even discrimination, which is nevertheless inherent in the individual character of that measure. To argue, as the applicant does, that the individual aid at issue is contrary to the principle of non-discrimination amounts essentially to calling into question systematically the compatibility with the internal market of any individual aid solely on account of its inherently exclusive and thus discriminatory nature, even though EU law allows Member States to grant individual aid provided that all the conditions laid down in Article 107 TFEU are satisfied (see judgment of 22 June 2022, Ryanair v Commission (Finnair II; Covid-19), T‑657/20, under appeal, EU:T:2022:390, paragraph 138 and the case-law cited).

174    In any event, even if, as the applicant claims, the difference in treatment established by the measure at issue, in so far as it benefits only the SN Group, may amount to discrimination, it is necessary to ascertain whether it is justified by a legitimate objective and whether it is necessary, appropriate and proportionate in order to attain that objective. Similarly, in so far as the applicant refers to the first paragraph of Article 18 TFEU, it must be pointed out that, under that provision, any discrimination on grounds of nationality within the scope of application of the Treaties ‘without prejudice to any special provisions contained therein’ is prohibited. Therefore, it is important to ascertain whether that difference in treatment is permitted under Article 107(3)(b) TFEU, which is the legal basis for the contested decision. That examination requires, first, that the objective of the measure at issue satisfy the requirements laid down in that provision and, secondly, that the conditions for granting the measure at issue, namely, in the present case, that it benefits only the SN Group, are such as to enable that objective to be achieved and do not go beyond what is necessary to achieve it.

175    As regards the objective of the measure at issue, it should be noted that the COVID-19 pandemic led to a serious disturbance in the Belgian economy and that it had major adverse effects on the Belgian air transport market. In that context, for the reasons set out in paragraphs 89 and 90 above, the objective of the measure, namely to maintain the viability and air transport services of the SN Group, was capable of remedying the serious disturbance in the Belgian economy.

176    The applicant nevertheless considers that those factors do not justify the difference in treatment resulting from the measure at issue. It takes the view that that difference in treatment is not proportionate in so far as that measure grants the SN Group all of the aid whereas the latter’s share of Belgium’s connectivity is less than 100%.

177    In that regard, in view of its major role in international connectivity and its economic and social weight in Belgium, especially in the light of the importance of Brussels Airport and the status of that city as one of the global centres of diplomacy, it must be held that ensuring the continuity of the SN Group’s economic activities was more likely to contribute to remedying the serious disturbance in the Belgian economy than maintaining the activities of the other airlines, which operated mainly from other airports and provided fewer flights to the other continents.

178    Lastly, as regards the question whether the measure at issue goes beyond what is necessary to achieve the objective pursued, the Commission noted, in paragraph 47 of the contested decision, that the amount of the subsidised loan did not exceed Brussels Airlines’ wage costs for 2019. In addition, it is apparent from paragraph 48 of the contested decision that the amount of the loan will be fully used to cover liquidity needs for a certain number of months after the adoption of the measure at issue. There is therefore no evidence to show that the amount of the loan is disproportionate, which, moreover, the applicant does not expressly contradict. As regards the recapitalisation measure, it is apparent from paragraph 2 above that its amount is EUR 2.9 million, a relatively small amount in relation to the amount of the loan, with the result that it has also not been established that it was disproportionate.

179    The applicant does not dispute those facts and merely claims that the measure at issue is disproportionate, in that it concerns only the SN Group and not other airlines.

180    In that regard, it is sufficient, first, to point out that the Commission is under no obligation to examine whether the Kingdom of Belgium, in addition to maintaining the viability of the SN Group, should have widened the circle of beneficiaries of the aid since the contested decision establishes to the requisite legal standard the need to preserve the SN Group’s contribution to the Belgian economy.

181    In any event, and in so far as the difference in treatment brought about by the measure at issue may amount to discrimination, it follows that the grant of the benefit of the measure at issue to the SN Group alone was justified. The measure at issue therefore does not infringe the principle of non-discrimination and the applicant’s arguments in that regard must be rejected.

182    Accordingly, the present part of the plea must be rejected as unfounded.

(b)    The second part, alleging infringement of the principles of freedom to provide services and freedom of establishment

183    In essence, the applicant argues that the measure at issue, in that it goes beyond what is necessary to achieve the stated aim of the aid, unjustifiably restricts the freedom to provide services and the freedom of establishment, which gives rise to doubts as to its compatibility with the internal market. In that regard, the applicant submits that granting the measure at issue solely to the SN Group leads to fragmentation of the internal market and, in the case of airlines, curtails their right freely to provide air transport services within the internal market as granted to them by the European operating licensing scheme provided for in 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).

184    The Commission, supported by the Kingdom of Belgium and Brussels Airlines, disputes those arguments.

185    First, it should be noted that the provisions of the FEU Treaty concerning freedom of establishment are aimed at ensuring that foreign nationals and companies are treated in the host Member State in the same way as nationals of that State (see judgment of 6 October 2015, Finanzamt Linz, C‑66/14, EU:C:2015:661, paragraph 26 and the case-law cited).

186    Secondly, the free provision of services precludes the application of any national legislation which has the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State, irrespective of whether there is discrimination on the grounds of nationality or residence (judgment of 6 February 2003, Stylianakis, C‑92/01, EU:C:2003:72, paragraph 25). However, it should be pointed out that, pursuant to Article 58(1) TFEU, freedom to provide services in the field of transport is governed by the provisions of the title relating to transport, namely Title VI of the FEU Treaty. The freedom to provide services in the field of transport is therefore governed, in primary law, by a special legal regime (judgment of 18 March 2014, International Jet Management, C‑628/11, EU:C:2014:171, paragraph 36). Consequently, Article 56 TFEU, which enshrines the free provision of services, does not apply as such to the air transport sector (judgment of 25 January 2011, Neukirchinger, C‑382/08, EU:C:2011:27, paragraph 22).

187    Therefore, measures liberalising air transport services may only be adopted under Article 100(2) TFEU (judgment of 18 March 2014, International Jet Management, C‑628/11, EU:C:2014:171, paragraph 38). However, the EU legislature adopted Regulation No 1008/2008 on the basis of that provision, and its very purpose is to define the conditions for applying in the air transport sector the principle of free provision of services (see, by analogy, judgment of 6 February 2003, Stylianakis, C‑92/01, EU:C:2003:72, paragraphs 23 and 24).

188    In the present case, it should be noted that, while it is true that the measure at issue concerns individual aid which benefits only the SN Group, the applicant does not establish how that exclusivity is such as to deter airlines from establishing themselves in Belgium or providing services to and from that country. In particular, the applicant fails to identify the elements of fact or of law which would cause that measure to produce restrictive effects that go beyond those which trigger the prohibition laid down in Article 107(1) TFEU, but which, as was held in paragraphs 174 to 181 above, are nevertheless necessary and proportionate to remedy the serious disturbance in the Belgian economy caused by the COVID-19 pandemic, in accordance with the requirements laid down in Article 107(3)(b) TFEU.

189    Consequently, the measure at issue cannot constitute a barrier to the freedom of establishment or to the freedom to provide services. It follows that the applicant is not justified in complaining that the Commission failed to examine the compatibility of that measure with the freedom of establishment and the free provision of services.

190    This part of the plea must therefore be rejected, as must, therefore, the third plea in its entirety.

4.      The fourth plea in law, alleging infringement of Article 108(2) TFEU

191    The applicant submits that the Commission should have had doubts, within the meaning of Article 4(3) and (4) of Regulation 2015/1589, when assessing the compatibility of the measure at issue with the internal market. Those doubts should have led to the initiation of a formal investigation procedure in which the interested parties referred to in Article 1(h) of that regulation could participate.

192    The Commission, the Kingdom of Belgium and Brussels Airlines dispute that argument.

193    It must be held that this plea lacks any independent content. Under such a plea, the applicant may, in order to preserve the procedural rights which it enjoys under the formal investigation procedure, rely only on pleas which show that the assessment of the information and evidence which the Commission had or could have had at its disposal during the preliminary examination phase of the measure notified (see, to that effect, judgment of 22 December 2008, Régie Networks, C‑333/07, EU:C:2008:764, paragraph 81) ought to have raised doubts as to the compatibility of that measure with the internal market (see, to that effect, judgments of 9 July 2009, 3F v Commission, C‑319/07 P, EU:C:2009:435, paragraph 35, and of 24 May 2011, Commission v Kronoply and Kronotex, C‑83/09 P, EU:C:2011:341, paragraph 59), such as the insufficient or incomplete nature of the examination carried out by the Commission during the preliminary examination procedure or the existence of complaints submitted by third parties. It should be noted that the fourth plea repeats in condensed form the arguments raised under the first to third pleas, without identifying specific evidence relating to potential serious difficulties.

194    For those reasons, the fourth plea must be rejected.

5.      The fifth plea in law, alleging breach of the duty to state reasons

195    The applicant claims, in essence, that the Commission’s reasoning in the contested decision is absent, incomplete or contradictory. The Commission allegedly failed to assess a number of factors that were crucial for establishing the compatibility of the aid with Article 107(3)(b) TFEU and the Temporary Framework.

196    The Commission, supported by the Kingdom of Belgium and Brussels Airlines, disputes those arguments.

197    It should be borne in mind that, according to settled case-law, the statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and must 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 it and to enable the competent court to exercise its power of review. 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 direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of 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 (see judgment of 8 September 2011, Commission v Netherlands, C‑279/08 P, EU:C:2011:551, paragraph 125 and the case-law cited).

198    First, the considerations set out in paragraphs 40 to 67 above show that there was no reason for the Commission to consider that the subsidised loan was, in reality, a disguised recapitalisation measure. It was therefore not obliged to provide further reasons for the contested decision in that regard.

199    Secondly, the Commission stated to the requisite legal standard, as is apparent from paragraphs 77 to 110 above, that the SN Group was eligible for the recapitalisation measure in the light of point 49(a) to (c) of the Temporary Framework. In that context, it was not obliged to examine a possible reduction in the SN Group’s workforce. Similarly, it sufficiently justified that it was impossible for the SN Group to obtain financing on the financial markets on affordable terms.

200    Thirdly, as is apparent from paragraphs 115 to 128 above, the Commission explained that the recapitalisation measure was proportionate in the sense that it complied with points 53 and 54 of the Temporary Framework, which reflect the assessment of the proportionality of the recapitalisation measure. Furthermore, the Commission was not required to apply point 72 of the Temporary Framework as the amount of the recapitalisation measure did not exceed EUR 250 million. It was therefore not required to provide further reasons for that aspect in the contested decision.

201    Fourthly, as has been held in paragraphs 150 to 159 above, given that Article 107(3)(b) TFEU does not require individual aid on its own to remedy a serious disturbance in the Belgian economy, the Commission was not required to explain whether the measure at issue, in so far as it benefited only the SN Group, could, on its own, remedy the serious disturbance in the economy of that Member State.

202    Fifthly, as has been noted in paragraphs 160 to 165 above, the Commission was not required to weigh up the positive and negative effects of the measure at issue. Therefore, the failure to state reasons in that regard does not constitute a failure to state reasons, since it is not required either by the Treaty or by the Temporary Framework.

203    Sixthly, concerning the statement of reasons in the light of the principles of non-discrimination, freedom to provide services and freedom of establishment, it must be stated, on the one hand, that the contested decision contains the information referred to in paragraphs 89, 90 and 177 above, which makes it possible to understand the particular importance of Brussels Airlines for the economy of Belgium and the reasons why the Kingdom of Belgium chose that company as the sole beneficiary of the measure at issue. On the other hand, as is apparent from paragraphs 188 and 189 above, the Commission was not required to examine the compatibility of that measure with the freedom of establishment and the freedom to provide services.

204    Consequently, the fifth plea in law must be rejected and, therefore, the action must be dismissed in its entirety.

 Costs

205    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. Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Commission and by Brussels Airlines, in accordance with the form of order sought by the latter.

206    In addition, in accordance with Article 138(1) of the Rules of Procedure, the Member States which have intervened in the proceedings are to bear their own costs. The Kingdom of Belgium and the Federal Republic of Germany must therefore bear their own costs.

On those grounds,

THE GENERAL COURT (Tenth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Ryanair DAC to bear its own costs and to pay those incurred by the European Commission and by Brussels Airlines SA/NV;

3.      Orders the Kingdom of Belgium and the Federal Republic of Germany to bear their own costs.

Delivered in open court in Luxembourg on 18 October 2023.

*      Language of the case: English.

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