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

JUDGMENT OF THE GENERAL COURT (Tenth Chamber, Extended Composition)

29 March 2023 (*) (1)

(State aid – Romanian air transport market – Aid granted by Romania to Blue Air in the context of the COVID-19 pandemic – Blue Air rescue aid – Loan guaranteed by the Romanian State – Decision not to raise any objections – Action for annulment – Aid intended to make good the damage caused by an exceptional occurrence – Article 107(2)(b) TFEU – Assessment of the damage – Causal link – Beneficiary’s pre-existing difficulties – Taking avoidable costs into account – Guidelines on State aid for rescuing and restructuring non-financial undertakings in difficulty – Article 107(3)(c) TFEU – Contribution of the aid to an objective of common interest – ‘One time, last time’ condition for rescue aid – Principle of non-discrimination – Freedom to provide services – Freedom of establishment – Obligation to state reasons)

In Case T‑142/21,

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

applicant,

v

European Commission, represented by L. Flynn, V. Bottka and I. Barcew, acting as Agents,

defendant,

THE GENERAL COURT (Tenth Chamber, Extended Composition),

composed, at the time of the deliberations, of A. Kornezov, President, E. Buttigieg, K. Kowalik-Bańczyk, G. Hesse (Rapporteur) and D. Petrlík, Judges,

Registrar: P. Cullen, Administrator,

having regard to the written part of the procedure,

further to the hearing on 12 July 2022,

gives the following

Judgment

1        By its action under Article 263 TFEU, the applicant, Wizz Air Hungary Légiközlekedési Zrt. (Wizz Air Hungary Zrt.), seeks the annulment of Commission Decision C(2020) 5830 final of 20 August 2020 on State Aid SA.57026 (2020/N) – Romania – COVID-19: Aid to Blue Air (‘the contested decision’).

 Background to the dispute

2        After a pre-notification stage, which started on 10 April 2020, on 18 August 2020 Romania notified the European Commission, in accordance with Article 108(3) TFEU of State aid in the form of a 100% State guarantee on a loan of 300 775 000 lei (RON) (approximately EUR 62 130 000) with subsidised interest rates (‘the measure at issue’) in favour of the airline Blue Air Aviation S.A. (‘Blue Air’).

3        Blue Air is a private Romanian airline with bases in Romania, Italy and Cyprus, the shares in which are held by the Romanian company Airline Invest SA (99.99%) and a US citizen (0.01%). Its main activity is the provision of passenger air transport and aircraft maintenance services. In 2019, Blue Air transported around 4 million passengers and recorded a turnover of approximately EUR 414 million. As of September 2019, the airline operated a fleet of 23 aircraft. Blue Air operated on both domestic and international routes.

4        The measure at issue concerns two separate State aid measures granted on two different legal bases, each covering a defined aid amount, namely:

–        a damage compensation measure under Article 107(2)(b) TFEU in an amount of EUR 28 290 000 for a period of six years, to make good the damage suffered directly by Blue Air due to the cancellation or rescheduling of its flights following the imposition of travel restrictions, and in particular the containment measures linked to the COVID-19 pandemic in the period from 16 March 2020 to 30 June 2020 (‘the damage compensation measure’);

–        rescue aid under Article 107(3)(c) TFEU, read in conjunction with the Guidelines on State aid for rescuing and restructuring non-financial undertakings in difficulty (‘the Guidelines’), in the amount of EUR 33 840 000 for a limited period of six months to partially cover Blue Air’s urgent liquidity needs caused by the heavy operating losses which it reported following the COVID-19 pandemic and enable it to continue operations while working out a viable restructuring plan (‘the rescue aid’).

5        On 20 August 2020, without initiating the formal investigation procedure under Article 108(2) TFEU, the Commission adopted the contested decision, by which it found that the measure at issue constituted State aid within the meaning of Article 107(1) TFEU and that it was compatible with the internal market under Article 107(2)(b) TFEU as regards the damage compensation measure and Article 107(3)(c) TFEU as regards the rescue aid.

 Forms of order sought

6        The applicant claims that the Court should:

–        annul the contested decision; and

–        order the Commission to pay the costs.

7        The Commission contends that the Court should:

–        dismiss the action as unfounded;

–        order the applicant to pay the costs.

 Law

8        It should be recalled that the Courts of the European Union are entitled to assess, according to the circumstances of each case, whether the proper administration of justice justifies the dismissal of the action on its merits without first ruling on its admissibility (see, to that effect, judgments of 26 February 2002, Council v Boehringer, C‑23/00 P, EU:C:2002:118, paragraphs 51 and 52, and of 14 September 2016, Trajektna luka Split v Commission, T‑57/15, not published, EU:T:2016:470, paragraph 84). In the present case, it is appropriate to begin by examining the merits of the action, without first ruling on its admissibility, in so far as the pleas in law relied on by the applicant in support of the action are unfounded for the reasons set out below.

9        In support of its action, the applicant relies on six pleas in law, alleging (i) misapplication of Article 107(2)(b) TFEU and a manifest error of assessment relating to the proportionality of the damage compensation measure, (ii) infringement of Article 107(3)(c) TFEU, (iii) infringement of the principles of non-discrimination, freedom to provide services and freedom of establishment, (iv) that the Commission relied on inexistent or inadequate evidence, (v) that the Commission should have initiated the formal investigation procedure and (vi) infringement of the obligation to state reasons.

 First plea in law, alleging misapplication of Article 107(2)(b) TFEU and a manifest error of assessment relating to the proportionality of the damage compensation measure

10      The applicant’s first plea is divided, in essence, into two parts, alleging, first, that the Commission erred in its assessment of the amount of damage caused to Blue Air by the travel restrictions imposed during the period from 16 March to 30 June 2020 in the context of the COVID-19 pandemic and, second, that it erred in assessing the amount of the damage compensation measure.

 The first part of the first plea relating to the assessment of the damage caused to Blue Air

11      First, the applicant submits that the Commission failed to distinguish between the damage caused by the travel restrictions imposed during the period from 16 March to 30 June 2020 in the context of the COVID-19 pandemic and the losses resulting from Blue Air’s pre-existing difficulties. In that regard, the applicant submits that Blue Air’s difficulties are partly structural and precede that pandemic, since the travel restrictions and grounding of airline fleets are merely new and distinct difficulties in addition to those which already existed. Moreover, the Commission simply indicated that for the purposes of calculating the damage subject to possible compensation under Article 107(2)(b) TFEU, the net losses suffered by Blue Air in the period from 16 March to 30 June 2020 could be directly attributed to the travel restrictions imposed in the context of the COVID-19 pandemic. In so far as the Commission assesses the loss of revenue by calculating the difference between the revenue that Blue Air could have expected on the basis of the budget for the year 2020, drawn up before the outbreak of the COVID-19 pandemic and in the absence of the restrictions due to it (‘the 2020 budget’), and the revenue that Blue Air actually generated during the period from 16 March to 30 June 2020, it should have considered whether the 2020 budget took into account the consequences of Blue Air’s pre-existing difficulties and the risks inherent in its transformation from a traditional to a low-cost airline model, as the revenues generated by Blue Air in the absence of the COVID-19 pandemic were likely to be lower than forecast in the 2020 budget. The applicant concludes that the damage suffered by Blue Air as a result of the COVID-19 pandemic was therefore overestimated by the Commission.

12      Secondly, the applicant argues that the assessment of the avoided costs is opaque, as the Commission failed to verify the mitigation of costs by Blue Air during the COVID-19 pandemic and therefore failed to note in the contested decision whether the costs incurred by Blue Air during the period from 16 March to 30 June 2020 reflect the maximum mitigation of its costs. Consequently, the avoided costs used in the assessment of the damage could contain cost elements which were avoidable.

13      Third, in the contested decision the Commission failed to assess the damage caused to other airlines. According to the applicant, an ‘exceptional occurrence’ within the meaning of Article 107(2)(b) TFEU by definition affects many or all the players in a sector or in the economy. Thus, many other airlines have suffered damage in Romania as a result of the travel restrictions imposed amid the COVID-19 pandemic. That provision is therefore intended to make good the damage also borne by Blue Air’s competitors and not only by Blue Air.

14      The Commission contends that the applicant’s arguments should be rejected.

15      It should be noted, as a preliminary point, that since this is an exception to the general principle set out in Article 107(1) TFEU that State aid is incompatible with the internal market, Article 107(2)(b) TFEU must be interpreted narrowly. Therefore, only economic damage caused directly by natural disasters or exceptional occurrences may be compensated for under that provision (judgment of 23 February 2006, Atzeni and Others, C‑346/03 and C‑529/03, EU:C:2006:130, paragraph 79).

16      It follows that aid likely to exceed the losses incurred by its beneficiaries is not covered by Article 107(2)(b) TFEU (see, to that effect, judgment of 11 November 2004, Spain v Commission, C‑73/03, not published, EU:C:2004:711, paragraphs 40 and 41).

17      Furthermore, it should be recalled, as the Commission did in its defence, that Article 107(2)(b) TFEU covers aid which is, in law, compatible with the common market, provided that it fulfils certain objective criteria. It follows that the Commission is bound, where those criteria are satisfied, to declare such aid compatible with the internal market, and that it has no discretion in that regard (judgment of 25 June 2008, Olympiaki Aeroporia Ypiresies v Commission, T‑268/06, EU:T:2008:222, paragraph 51; see also, to that effect, judgment of 17 September 1980, Philip Morris Holland v Commission, 730/79, EU:C:1980:209, paragraph 17).

18      Moreover, it should be recalled that, according to the case-law, the occurrence giving rise to the damage, as defined in the contested decision, must be the determining cause of the damage which the aid at issue is intended to remedy and must be directly responsible for causing that damage. A direct link will only exist where the damage is the direct consequence of the occurrence in question without being dependent on the interposition of other causes. Accordingly, it is incumbent on the Commission to examine with particular care whether the travel restrictions imposed in the context of the COVID-19 pandemic were really the decisive cause of the damage suffered by the beneficiary of the aid concerned or, on the contrary, some of the damage suffered was due to the beneficiary’s pre-existing difficulties (see, to that effect, judgment of 9 June 2021, Ryanair v Commission (Condor; Covid-19), T‑665/20, EU:T:2021:344, paragraphs 45 and 58).

19      In the first place, it should be noted, as is apparent from paragraphs 29, 30 and 93 to 96 of the contested decision, that the Commission compared, for the purposes of assessing the damage, on the one hand, Blue Air’s financial situation in which the damage caused by the travel restrictions imposed in the context of the COVID-19 pandemic had already materialised and, on the other hand, a counterfactual scenario that would have occurred in the absence of those restrictions, which took into account the revenues and costs provided for in the 2020 budget for the period from 16 March to 30 June 2020.

20      However, Blue Air’s pre-existing difficulties prior to the COVID-19 pandemic were reflected in both scenarios. First, the financial situation of Blue Air in which the damage caused by the travel restrictions had already materialised corresponded to the actual results of Blue Air during the relevant period, which necessarily reflected the impact of Blue Air’s pre-existing difficulties. Secondly, it should be noted, as the Commission did, and as is apparent from the methodology described, inter alia, in paragraphs 29, 30 and 93 to 96 of the contested decision, that the 2020 budget for the period from 16 March to 30 June 2020, on which the counterfactual scenario was based, also reflected the impact of Blue Air’s pre-existing difficulties prior to the COVID-19 pandemic. Therefore, as the Commission essentially points out, since the impact of the pre-existing difficulties was reflected in both scenarios, it follows, implicitly but necessarily, that this impact was neutralised in the calculation of the damage caused by the travel restrictions imposed during the period from 16 March to 30 June 2020 in the context of the COVID-19 pandemic.

21      Paragraph 29 of the contested decision states that the eligible costs for the period from 16 March to 30 June 2020 correspond to the damage directly caused to Blue Air by the restrictions due to the COVID-19 pandemic during that period. The damage is thus defined as the loss of revenue resulting from those restrictions, from which shall be deducted the avoided costs recorded in relation to the income and costs estimated in the 2020 budget for the duration of the said period. Moreover, the estimated net profit in the 2020 budget for the same period is excluded from the amount of damages.

22      While the applicant does not dispute the methodology used to determine the amount of the damage compensation measure (see paragraph 19 above), it develops an argument relating to the appropriateness of the 2020 budget, as established before the imposition of travel restrictions.

23      Thus, as regards the applicant’s argument that the Commission should have verified whether the 2020 budget was realistic or potentially too optimistic, it should be noted that the Commission based its counterfactual scenario on the revenue and costs foreseen in the 2020 budget for the period from 16 March to 30 June 2020 as the reference values for the calculation of damages, since those values, according to Romania, provided a better approximation of the damages than the actual revenue and costs recorded in the corresponding months of 2019. In that regard, it is apparent from paragraphs 30 and 95 of the contested decision that that choice is explained by the desire to take two factors into account. First, the transformation of Blue Air’s business model into an entirely low-cost air carrier prevented it from generating revenue from charter flights or from the leasing of aircraft with crew, maintenance and insurance included in 2020, contrary to what had occurred in 2019. Secondly, the delayed delivery of six new Boeing 737‑MAX aircraft forced Blue Air to continue operating six older aircraft, reducing the estimated average available seat capacity by 10% and the utilisation of the existing fleet by almost 10%, also increasing maintenance costs by EUR 25 million compared to 2019. It follows that, by relying on the 2020 budget, the Commission estimated the damage at EUR 28.57 million based on the earnings before interest and taxes (EBIT) for the period from 16 March to 30 June 2020. In so doing, the Commission adopted a conservative approach, which resulted in a lower quantification of damages than would have been obtained by using the actual financial results of the corresponding months of 2019 as a benchmark since these would have led to a higher estimate of damages, valued at EUR 33.51 million on the basis of EBIT.

24      In addition, as stated in paragraph 32 of the contested decision, Blue Air suffered a loss of operating revenue as a result of a reduction in the number of flights operated and a reduced load factor for the few remaining flights in the months of March to June 2020. It should be pointed out that, as is apparent from that same paragraph and as the Commission stated at the hearing, the amount of the cost reductions was deducted from the loss of profit. Those reductions included lower direct operating costs, indirect cost savings and cost differences related to depreciation, wet-leasing and penalties. This resulted in net losses eligible for compensation of EUR 28.29 million. In that regard, it should be noted that the amount of EUR 28.57 million, referred to in paragraphs 30 and 95 of the contested decision, constitutes an intermediate step in the calculation of the amount of damages.

25      Furthermore, it should be noted, as is apparent from paragraphs 31 and 96 of the contested decision, that the Romanian authorities excluded the earnings foreseen in the 2020 budget for the period from 16 March to 30 June 2020 from the damage compensation, which means that the compensation proposed was below the quantified damage.

26      Moreover, as the Commission rightly points out in its defence, the number of passengers actually transported by Blue Air in January and February 2020, that is to say, before the imposition of the travel restrictions, was very close to the estimates in the 2020 budget. This demonstrates that the budgeted revenue for the period from 16 March to 30 June 2020 would also have been realistic in the absence of those restrictions.

27      Thus, it must be held that the applicant’s claim as to the amount of the potential reduction in Blue Air’s revenue in 2020 compared to 2019 is purely speculative. As regards the argument that the reduction in total capacity and aircraft utilisation could entail a reduction in the amount of Blue Air’s revenue in relation to 2019, it should be noted that, as is apparent from paragraphs 30 and 95 of the contested decision, the impact of reduced available seat capacity, lower aircraft utilisation and increased maintenance costs has already been taken into account by the Commission when examining the 2020 budget.

28      Therefore, it must be held that the applicant’s claim is not substantiated and fails to demonstrate that the counterfactual scenario based on the 2020 budget and drawn up by the Commission was not plausible.

29      In addition, it should be noted that, in the present case, even though Blue Air was faced with pre-existing difficulties, the applicant has not identified any specific cost item which, in its view, should have been excluded or treated differently by the Commission on the ground that those costs were caused by those pre-existing difficulties, and not by the travel restrictions imposed during the period from 16 March to 30 June 2020 in the context of the COVID-19 pandemic.

30      Accordingly, it must be held that, as the impact of Blue Air’s pre-existing difficulties on the COVID-19 pandemic was reflected in the two scenarios mentioned above, it follows, implicitly but necessarily, that that impact was neutralised in the calculation of the damage caused by the travel restrictions imposed during the period from 16 March to 30 June 2020 in the context of that pandemic.

31      The applicant’s argument must therefore be rejected.

32      In the second place, as regards the applicant’s argument that the Commission failed to ensure that Blue Air had taken the necessary steps to reduce its costs during the period from 16 March to 30 June 2020, so that not only avoided costs but also ‘avoidable’ costs, that is to say, costs which it could have avoided but which it nevertheless incurred, are excluded from the compensation for damage, it should be noted that, in paragraphs 92 and 93 of the contested decision, the Commission explained that the damage to be compensated corresponded to the loss of added value, defined as the difference between, on the one hand, Blue Air’s loss of profit, that is to say, the difference between the turnover it could have expected to achieve during the period from 16 March to 30 June 2020 on the basis of the 2020 budget, in the absence of the travel restrictions and other containment measures related to the COVID-19 pandemic, and the turnover actually achieved during that period, adjusted by Blue Air’s profit margin, and, on the other hand, the avoided costs.

33      In that regard, the Commission defined the avoided costs as being those which Blue Air would have incurred during the period from 16 March to 30 June 2020 if its activities had not been affected by the travel restrictions and containment measures linked to the COVID-19 outbreak, and which it did not have to bear as a result of the cancellation of its operations. The Commission stated, in paragraph 94 of the contested decision, that the avoided costs concerned, for example, fuel costs and personnel costs. It also explained that the avoided costs had to be quantified by comparing the costs foreseen in the 2020 budget with the costs actually incurred by Blue Air during the period from 16 March to 30 June 2020.

34      In those circumstances, and contrary to what the applicant claims, it cannot be held that the assessment of the avoided costs, as set out in the contested decision, is opaque.

35      Furthermore, it should be noted in the present case that the applicant still fails to specify in concrete terms what other costs, apart from the avoided costs already taken into account, Blue Air could have avoided and should therefore have been excluded from the assessment of the damage caused to it. In those circumstances, the Court cannot but find that the applicant’s complaint concerning an alleged failure by the Commission to take account of ‘avoidable’ costs is too abstract and is not substantiated by any specific data.

36      Therefore, that argument must be rejected.

37      In the third place, as regards the argument that the Commission failed to take account of the damage suffered by other airlines, it should first of all be recalled that, under Article 107(2)(b) TFEU, aid to make good the damage caused by natural disasters or exceptional occurrences is compatible with the internal market.

38      In the present case, the applicant does not dispute the Commission’s assessment in the contested decision that the COVID-19 pandemic should be regarded as an ‘exceptional occurrence’ within the meaning of Article 107(2)(b) TFEU. Furthermore, it is apparent from paragraphs 7, 86 and 87 of the contested decision that the COVID-19 pandemic led to the suspension of most air transport passenger services, having regard, in particular, to the travel restrictions and other containment measures imposed and the closure of the borders of several EU Member States, including Romania.

39      Accordingly, the applicant is correct in observing that Blue Air is not the only company, nor the only airline, to be affected by the exceptional occurrence at issue.

40      However, the fact remains, as the Commission correctly submits in its defence, that there is no requirement for Member States to grant aid to make good the damage caused by an exceptional occurrence within the meaning of Article 107(2)(b) TFEU.

41      More specifically, first, while Article 108(3) TFEU requires Member States to notify their plans as regards State aid to the Commission before they are put into effect, it does not, however, require them to grant any aid (order of 30 May 2018, Yanchev, C‑481/17, not published, EU:C:2018:352, paragraph 22).

42      Secondly, an aid measure may be directed at making good the damage caused by an exceptional occurrence, in accordance with Article 107(2)(b) TFEU, irrespective of the fact that it does not make good the entirety of that damage.

43      Consequently, it does not follow from Article 108(3) TFEU or from Article 107(2)(b) TFEU that Member States are obliged to make good the entirety of the damage caused by an exceptional occurrence, such that they similarly cannot be required to grant aid to all of the victims of that damage either (judgments of 14 April 2021, Ryanair v Commission (SAS, Denmark; Covid-19), T‑378/20, under appeal, EU:T:2021:194, paragraph 24, and of 14 July 2021, Ryanair and Laudamotion v Commission (Austrian Airlines; COVID-19), T‑677/20, under appeal, EU:T:2021:465, paragraph 57).

44      In those circumstances, the applicant is not justified in claiming that the Commission was required to assess, in the contested decision, the damage caused to airlines other than Blue Air.

45      Therefore, the first part of the first plea must be rejected.

 The second part of the first plea, relating to the assessment of the amount of the compensation

46      The applicant submits that the Commission committed a manifest error of assessment in so far as, contrary to its decision-making practice, it failed to take into account the competitive advantage resulting from the discriminatory nature of the damage compensation measure, which would result in stronger market shares for Blue Air than those which it would otherwise have been able to claim or in the possibility of obtaining a loan on favourable terms.

47      The Commission refutes the applicant’s arguments.

48      First of all, it should be noted that, for the purposes of assessing the compatibility of aid with the internal market, the advantage procured by that aid for the recipient does not include any economic benefit the recipient may have enjoyed as a result of exploiting that advantage. That benefit may not be the same as the advantage constituting the aid, and there may indeed be no such benefit, but that cannot justify a different assessment of the compatibility of the aid with the internal market (see, to that effect and by analogy, judgment of 21 December 2016, Commission v Aer Lingus and Ryanair Designated Activity, C‑164/15 P and C‑165/15 P, EU:C:2016:990, paragraph 92).

49      Consequently, it must be held that the Commission was right to take account of the advantage conferred on Blue Air, as it resulted from the damage compensation measure. However, the Commission cannot be criticised for not having determined the existence of any possible economic benefit resulting from that advantage.

50      In those circumstances, the applicant is not justified in criticising the Commission for failing to take account of a possible competitive advantage resulting from the allegedly discriminatory nature of the measure at issue.

51      Accordingly, the Court rejects the second part of the first plea and, consequently, that plea is dismissed in its entirety.

 Second plea in law, alleging infringement of Article 107(3)(c) TFEU

52      By its second plea, the applicant complains that the Commission misapplied Article 107(3)(c) TFEU, read in the light of the Guidelines. The Commission erred in law and made several errors of assessment. The errors concern (i) Blue Air’s eligibility for the rescue aid, (ii) the existence of an objective of common interest, (iii) the assessment of the appropriateness of that aid, (iv) the assessment of the proportionality of that aid, (v) the adequacy of the Guidelines for the assessment of that aid and (vi) the assessment of the negative effects of the rescue aid.

 Blue Air’s eligibility for the rescue aid

53      By the first part of the second plea, the applicant claims, in essence, that the Commission carried out an insufficient examination of the first condition referred to in point 22 of the Guidelines, according to which a company that is part of a group cannot, in principle, benefit from rescue aid. The applicant complains that the Commission merely stated that 99.99% of the shares in Blue Air were held by the joint stock company Airline Invest, 99.99% of the shares of which were in turn held by an individual, in order to conclude that the beneficiary did not belong to a group of undertakings, even though that individual could be the intermediary or front man of another natural or legal person. Thus, in its view, the Commission should not simply have found that Blue Air was controlled by two individuals in order to draw its conclusion.

54      The Commission contends that the applicant’s arguments should be rejected.

55      It should be recalled in that respect that point 22 of the Guidelines sets out three cumulative conditions in order for aid granted to a company belonging to a group to be regarded as compatible with the internal market. Accordingly, it is the task of the Commission to examine (i) whether the beneficiary of the aid belongs to a group and, as the case may be, the composition of that group, (ii) whether the difficulties faced by the beneficiary are intrinsic and are not the result of an arbitrary allocation of costs within the group and (iii) whether those difficulties are too serious to be dealt with by that group itself.

56      The objective of that prohibition is therefore to prevent a group of undertakings from having the State bear the cost of a rescue operation for one of the undertakings belonging to the group, when that undertaking is in difficulty and the group itself has created those difficulties or has the means to deal with them on its own (see, to that effect, judgment of 13 May 2015, Niki Luftfahrt v Commission, T‑511/09, EU:T:2015:284, paragraph 159).

57      It is apparent from paragraphs 27 and 105 of the contested decision that 99.99% of Blue Air’s shares are held by the Romanian company Airline Invest, established in December 2019, and that the remaining 0.01% belong to a US citizen. It is also stated that 99.99% of the shares in Airline Invest, which does not carry out any activities other than holding the shares in Blue Air, are themselves held by an individual who does not carry on any direct or indirect activity.

58      The applicant’s line of argument consists of maintaining that the natural person holding 99.99% of the shares in Airline Invest could be the front man of another natural or legal person. It must be stated that that line of argument is not substantiated and remains hypothetical, since it is based on mere suppositions drawn solely from press articles the content of which is not such as to demonstrate that Airline Invest’s shareholder is a front man. Consequently, that argument is purely speculative and is supported only by the evidence to which the applicant refers. Moreover, when questioned on that point at the hearing, the applicant was unable to provide more specific information in that regard.

59      Therefore, in the absence of evidence to that effect, the argument that the Commission conducted an insufficient examination of the first condition laid down in point 22 of the Guidelines, namely whether the beneficiary of the aid belonged to a group, must be rejected.

60      Consequently, the first limb of the second plea must be rejected.

 Contribution of the rescue aid to an objective of common interest

61      By the second part of the second plea, the applicant submits, in essence, that the Commission erred in concluding that the rescue aid pursued an objective of common interest within the meaning of point 43 of the Guidelines. In particular, according to the applicant, the Commission did not establish, first, that Blue Air provided an important service within the meaning of point 44(b) of the Guidelines and, second, that that service could not easily be provided by a competitor.

62      The Commission contends that the applicant’s arguments should be rejected.

63      It should be recalled that, according to the case-law, the Commission may declare aid compatible with Article 107(3) TFEU only if it can establish that that aid contributes to the attainment of one of the objectives specified, something which, under normal market conditions, the recipient undertaking would not achieve by using its own resources. In other words, an aid measure 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 objectives laid down in Article 107(3) TFEU (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).

64      As regards Article 107(3)(c) TFEU in particular, it follows from point 43 of the Guidelines that the mere fact of preventing an undertaking from leaving the market is not sufficient to justify the use of rescue aid. It must be clearly demonstrated that the aid pursues an objective of common interest in that its purpose is to avoid social hardship or address market failure. Point 44 of the Guidelines sets out seven examples of situations in which it is established that the aid pursues a common interest. In particular, point 44(b) of the Guidelines provides that Member States must demonstrate that the failure of the beneficiary would be likely to involve serious social hardship or severe market failure, in that ‘there is a risk of disruption to an important service which is hard to replicate and where it would be difficult for any competitor simply to step in (for example, a national infrastructure provider)’.

65      In the present case, it is necessary to examine the applicant’s arguments in order to ascertain whether the Commission made a manifest error of assessment in considering, first, that the service in question was ‘important’ and, second, that it was hard to replicate it, within the meaning of point 44(b) of the Guidelines.

66      In the first place, as regards the important nature of the service provided by Blue Air, it is apparent in particular from paragraphs 51, 52, 58, 108 and 109 of the contested decision that that airline ensured the connectivity of Romania in so far as it served domestic and international air routes, some of which linked remote areas of that Member State which were difficult to access by land due to the poor state of the Romanian road and rail infrastructure.

67      In addition, it should be noted that, as stated in paragraph 111 of the contested decision, some small national airports may not even be served or may be served to a significantly reduced extent after Blue Air’s exit from the market given, first, that the other low-cost airlines have never shown any interest in serving domestic routes from or to some of these airports and, secondly, Romania’s national airline, TAROM, does not offer low-cost air services, which is not contested by the parties.

68      Furthermore, as regards international air routes, it is apparent from paragraph 52 of the contested decision that Blue Air was the only low-cost airline operating routes from Romania to the airports of Florence (Italy), Stuttgart (Germany), Cologne/Bonn (Germany), Amsterdam (Netherlands), Milan-Linate (Italy), Paris-Orly (France) and Helsinki (Finland).

69      To that extent, the Commission was right to consider that Blue Air performed an important service by offering, on the one hand, routes to and from several remote Romanian regions, whose connectivity by air was of particular economic importance in view of the state of the national land infrastructure, and, on the other hand, routes to and from several major European cities, thereby contributing to the international connectivity of those regions.

70      Moreover, as the Commission noted, the passenger air transport services provided by Blue Air targeted, in particular, two specific categories of passengers, namely small local entrepreneurs and the Romanian community established outside the country, particularly active in Italy, France, Spain, Germany and the United Kingdom, thanks to a unique network of national and international routes, specifically calibrated to their needs, which it had developed for that purpose over the last 15 years. The contested decision states in that regard that, in the context of the absence of valid alternatives due to the poor state of the Romanian road and rail infrastructure, which is not disputed by the applicant, both categories of highly mobile passengers, who travel within Romania for professional purposes (for the first category) or live and work abroad and make frequent return flights between their country of origin and their respective place of residence (for the second category), depend on low-cost air routes.

71      Thus, the Commission’s analysis in the present case is based, in essence, on the finding that the cessation of Blue Air’s activity would be detrimental to both the regional and international connectivity of Romania and, in particular, of certain remote regions of the country, as well as to the mobility of the two categories of passengers referred to in paragraph 70 above, and that, in the event of the beneficiary’s exit from the market, there would be a concrete risk of disruption to certain passenger air transport services considered important by that Member State.

72      Furthermore, it is apparent from paragraphs 59, 62, 111 and 112 of the contested decision that, by ensuring the mobility of small local entrepreneurs between the various regions of the country, Blue Air contributes to the economic life of those regions.

73      Furthermore, as is apparent from paragraphs 53 and 110 of the contested decision, Blue Air’s exit from the market would have had a direct impact on more than 400 000 passengers, more than 250 000 of whom had their flights cancelled due to travel restrictions imposed by the European States to limit the spread of the COVID-19 pandemic and were either awaiting reimbursement of their tickets or had accepted a credit note to be used on another flight. As regards the remaining 150 000 passengers, they had booked a flight with Blue Air in the following 12 months.

74      In the light of the evidence referred to in paragraphs 65 to 73 above, the applicant did not submit to the Court any evidence from which it could be concluded that the Commission had made a manifest error of assessment when it considered that Blue Air provided an important service within the meaning of point 44(b) of the Guidelines.

75      Furthermore, none of the arguments put forward by the applicant before the Court is capable of calling that conclusion into question.

76      First, as regards the applicant’s argument that Blue Air is not a low-cost airline and that the average price of the tickets offered by Blue Air is even higher than that of the tickets sold by the applicant, it must be noted that the applicant claims, in support of its argument, that the average price of its tickets was EUR 68.27 in 2019 and EUR 55.59 in 2020, whereas, for those same two years, the average price of the tickets offered by Blue Air was EUR 89.09 and EUR 63.37 respectively.

77      When questioned on that point at the hearing, the applicant added that, in addition to the pricing aspect in itself, the other characteristic of low-cost airlines is the particularly high load factor of their aircraft. In the present case, according to the applicant, the load factor of its aircraft is, overall, higher than that of the aircraft operated by Blue Air.

78      The two circumstances referred to by the applicant, even if proved, are not, in themselves, capable of demonstrating that the service provided by Blue Air was not important within the meaning of point 44(b) of the Guidelines. They cannot call into question the finding, set out in paragraphs 65 to 73 above, that the service provided by Blue Air ensured the connectivity of several Romanian regions and facilitated the travel of two well-defined categories of passengers, small entrepreneurs and Romanian citizens established in other Member States, thus ensuring the connectivity of Romania as a whole and therefore constituting an important service for those passengers. In addition, it should be noted that the numerical comparison of the average ticket prices does not, in any event, demonstrate that Blue Air is not a low-cost airline in the same way as the applicant and, moreover, shows that Blue Air has been able to reduce the average price of its tickets by more than EUR 25 in one year, which in 2020 was only EUR 7.78 higher than that of the applicant’s tickets.

79      Secondly, the applicant’s argument that the Commission failed to assess the size of the market and the importance of Blue Air on domestic and international routes cannot succeed. On the one hand, it should be noted that point 43 and point 44(b) of the Guidelines do not require the Commission to take account of the size of the relevant market when examining whether the service in question is ‘important’. Thus, even if the size of the relevant market is relatively small, that does not prevent a service provided on that market from being significant within the meaning of the Guidelines (judgment of 4 May 2022, Wizz Air Hungary v Commission (TAROM; Rescue aid), T‑718/20, under appeal, EU:T:2022:276, paragraph 51).

80      On the other hand, even if it were established, Blue Air’s small market share on domestic and international routes is not such as to affect the finding that the risk of Blue Air ceasing operations in the short term was likely to undermine Romania’s connectivity as a whole, and in particular the connectivity of certain Romanian regions, and be detrimental to passengers using its air transport services. The fact that, on the Romanian market as a whole, Blue Air’s market share is small does not detract from its importance in terms of the connectivity of certain remote Romanian regions, for which, given the state of the road and rail infrastructure, air links remain the only viable option.

81      Thirdly, as regards the applicant’s argument that the national routes operated by Blue Air could have been the subject of public service obligations rather than the rescue of Blue Air, it must be noted that the applicant has not demonstrated that the introduction of such public service obligations could have been carried out within a sufficiently short period of time, while ensuring the continued connectivity of those regions.

82      In the second place, as regards the question whether the services provided by Blue Air were complicated to replicate within the meaning of point 44(b) of the Guidelines, it is apparent from paragraphs 54, 55, 63, 109, 110 and 112 of the contested decision that, in the circumstances of the present case, it would not have been possible for other airlines, in particular low-cost airlines, in the short term to ensure all those services, since several of them had already recently closed some of their air routes, also operated by Blue Air, thus leaving Blue Air alone to operate them.

83      Moreover, first, it should be noted that, according to the Commission, the other low-cost airlines have little or no presence on the majority of Blue Air’s routes in so far as their business model is based on the use of so-called ‘secondary’ airports, namely airports located at a certain distance from city airports regarded as ‘primary’. Indeed, ‘secondary’ airports require the payment of lower airport charges and slots are more readily available than at major national airports.

84      In that regard, the applicant acknowledges that it does not serve certain ‘primary’ airports served by Blue Air.

85      Consequently, it must be held that the Commission was right to find, in paragraph 109 of the contested decision, that Blue Air occupied a niche which was not operated by other low-cost airlines on the Romanian market. Thus, the applicant has not demonstrated that it would have been capable of taking over the air routes operated by Blue Air since its business model differed considerably from that of Blue Air.

86      In the same vein, the applicant has also not contested the fact that Blue Air’s competing low-cost airlines were not interested in taking over the air routes to or from certain Romanian regional airports, such as Oradea (Romania) and Baia Mare (Romania), in so far as those competing airlines already operated air routes from other regional airports, which risked leaving the former airports unserved or poorly served in the event of Blue Air’s exit from the market.

87      Furthermore, footnote 19 of the contested decision states that the low-cost airlines competing with Blue Air had already withdrawn from Oradea and the Bucharest-Cluj (Romania) route in 2018, which confirms the Commission’s assessment that those airlines had no interest in offering that cover.

88      In addition, it should be noted that, at the hearing, the applicant argued that various routes were no longer served by Blue Air, such as those to and from Oradea. However, in so doing, the applicant refers to information which is current and therefore subsequent to the date of the contested decision. In that regard, it should be recalled that the legality of the contested decision must be assessed on the basis of the information available to the Commission at the time when it was adopted, and not on the basis of subsequent events. That argument must therefore be rejected.

89      Secondly, the applicant claims that it operated more than 80% of the international air routes also operated by Blue Air. In that regard, however, it should be pointed out, as the Commission did, that it is not apparent from the annexes to the application that the applicant is present on 80% of the air routes operated by Blue Air, since those annexes refer only to international ‘destinations’ from Romania, and not to specific routes. In addition, the applicant refers to data subsequent to the contested decision in that it refers to data covering the whole of 2020. Thus, in view of their content and the period to which they relate, those data do not sufficiently support the applicant’s argument. In any event, those data confirm that a significant proportion of the routes served by Blue Air were not served by the applicant.

90      Thirdly, as regards the argument that the lost capacity of an airline could be quickly replaced by other airlines wishing to redeploy their excess capacity, it must be pointed out that there is no evidence to show that the applicant’s excess capacity, which originated in the measures adopted by the Member States in the context of the COVID-19 pandemic, would enable it to operate the air routes previously operated by Blue Air. Therefore, it has not been shown that, once it had resumed its own activity, the applicant would still have sufficient transport capacity to resume those routes. Overcapacity in the sector is not in itself sufficient to give rise to the presumption that competitors will use spare capacity on any terms and incur additional costs while providing an uninterrupted service at affordable prices.

91      Consequently, it must be held that the applicant has not demonstrated that airlines competing with Blue Air would have been prepared to take over all of the routes operated by Blue Air in the event of its exit from the market.

92      Fourthly, even assuming that the replacement of Blue Air had been possible on some of the domestic or international routes in question, the applicant has also failed to demonstrate that, in view of the likely and imminent cessation of operations by Blue Air, that replacement could have taken place in the short term, in order to avoid as far as possible any disruption to the service, and under conditions similar to those in which those routes were operated.

93      Although the applicant submits that it was prepared to operate Blue Air’s routes in less than six months in the event of its exit from the market, it is apparent from the annexes to the application relating to the applicant’s expansion in 2020 that most of the air routes which it launched either were not served by Blue Air at all in 2019 and 2020, or continued to be served by Blue Air in 2020. It must therefore be held that the applicant has not demonstrated that Blue Air had already been replaced on certain routes or could easily be replaced within six months of its cessation of operations.

94      Having regard, in particular, to the importance of the role played by Blue Air in ensuring affordable air routes for two categories of passengers who make an essential contribution to Romania’s regional economy, namely small local entrepreneurs and the Romanian community established abroad, and to the consequences which its failure would have on that economy and on more than 400 000 passengers (see paragraph 73 above), it must be concluded that the exit of Blue Air from the market would have entailed a risk of interruption of an important service which would have been difficult to replicate in the particular circumstances of the case.

95      The Commission was therefore right to find that the rescue aid met the requirements laid down in points 43 and 44 of the Guidelines.

96      Accordingly, the second part of the second plea must be rejected as unfounded.

 Assessment of the appropriateness of the rescue aid

97      By the third part of the second plea, the applicant submits, in essence, that the Commission erred in finding that the rescue aid was appropriate. First, it complains that the Commission failed to apply a correct interest rate by wrongly finding that Blue Air offered normal levels of collateralisation. Secondly, it considers that the duration of the rescue aid is too long. Thirdly, the applicant submits that the Commission should have asked the beneficiary to submit a restructuring plan in accordance with point 55(d)(ii) of the Guidelines or a liquidation plan in accordance with point 55(d)(iii) of the Guidelines, within a period of less than six months.

98      The Commission disputes the applicant’s arguments.

99      First, as regards the applicant’s argument that the interest rate applied to the loan in question is not sufficiently high in relation to the risks associated with that loan, it should be noted that point 56 of the Guidelines provides as follows:

‘The level of remuneration that a beneficiary is required to pay for rescue aid should reflect the underlying creditworthiness of the beneficiary, discounting the temporary effects of both liquidity difficulties and State support, and should provide incentives for the beneficiary to repay the aid as soon as possible. The Commission will therefore require remuneration to be set at a rate not less than the reference rate set out in the Reference Rate Communication … for weak undertakings offering normal levels of collateralisation (currently 1-year IBOR plus 400 basis points) … and to be increased by at least 50 basis points for rescue aid the authorisation of which is extended in accordance with point 55(d)[(ii)].’

100    In the present case, it is not disputed by the parties that the interest rate attached to the loan in question is equivalent to or close to the reference rate referred to in point 56 of the Guidelines and therefore does not infringe the threshold imposed.

101    More specifically, it is apparent from paragraph 19 of the contested decision that, if the loan were to be granted in two tranches, the interest rate of the part of the loan relating to rescue aid and the corresponding State guarantee would be at least equal to the level of the one-year Romanian Interbank Offer Rate (ROBOR) or the one-year Euro Interbank Offered Rate (Euribor) (depending on the currency in which the loan is denominated) plus a risk margin of at least 400 basis points. If the loan were to be granted in a single tranche, the interest rate of the entire loan and the guarantee would be at least equal to the level of the one-year ROBOR or Euribor (depending on the currency in which the loan is denominated) plus a risk margin of not less than 400 basis points.

102    Contrary to what the applicant submits, it is clear from point 56 of the Guidelines that there is no need to increase that rate before any extension of the authorisation.

103    Therefore, given that the Commission was not in a position to foresee with certainty whether or not Romania was going to submit a restructuring plan before the deadline, the applicant cannot complain that it did not increase the interest rate applied from the time the contested decision was adopted. No such deadline is provided for in point 56 of the Guidelines.

104    Furthermore, it should be noted, as the Commission did, that the applicant’s argument that the interest rate should be higher in the absence of securities provided by the beneficiary is the result of a misreading of point 56 of the Guidelines. This point provides for the application of the rate to weak undertakings offering normal levels of collateralisation (see paragraph 99 above). Thus, that point requires the application of a minimum interest rate that applies to all rescue aid, irrespective of the guarantees provided by the beneficiaries in each case. As the Commission points out, this is due to the urgency inherent in rescue aid, which requires the establishment of a clear rule applicable in all cases, so that the Commission does not need to carry out an examination of the appropriateness of the remuneration of rescue aid on a case-by-case basis.

105    Second, as regards the applicant’s claim that the duration of the aid at issue is excessive in relation to the objective pursued by that aid, it should be recalled that point 55 of the Guidelines lists the conditions which rescue aid must meet in order to be authorised by the Commission. First of all, it is important that the rescue aid measure is limited in time. In that regard, point 55(d) of the Guidelines provides, inter alia, that Member States must undertake to forward to the Commission, within a maximum period of six months, either proof that the loan has been repaid in full or, provided that the beneficiary can be described as an undertaking in difficulty, a restructuring plan as set out in point 3.1.2 of the Guidelines. Upon submission of such a plan, the authorisation of the rescue aid will be automatically extended until the Commission takes a final decision on the restructuring plan, unless it decides that such an extension is not justified or should be limited in time or scope.

106    It is apparent from the wording of point 55(d) of the Guidelines that the Commission is not entitled to refuse to authorise rescue aid in a situation where the Member State concerned intends to use the full six-month period allowed by the Guidelines to draw up and submit a restructuring or liquidation plan. Thus, although a Member State may set a shorter period, the Commission cannot lawfully oblige it to do so. Moreover, the six-month period is intended, as stated in point 60 of the Guidelines, to enable the beneficiary to restore its liquidity.

107    Thirdly, the applicant argues that the Commission made an error of assessment in that it should have required Romania to submit a restructuring plan within a period of less than six months. In its view, it was clear from the outset that the loan would not be repaid within the six-month period provided for and that Romania would eventually have that period extended by submitting a restructuring plan. In the context of the COVID-19 pandemic, all airlines suffer serious losses and an aid measure granted de facto for a period of more than six months to one of them creates a significant distortion.

108    However, those arguments of the applicant do not render the Commission’s assessments implausible.

109    It is clear from the wording of point 55(d) of the Guidelines that it is for the Member State to provide the Commission, no later than six months after the rescue aid has been authorised, with proof of repayment of the loan, a restructuring plan (provided that the beneficiary can be classified as a firm in difficulty) or a liquidation plan. It is true that the Member State concerned is always entitled to submit one of those documents before the end of the six-month period, but it is not apparent from the wording of that point that the Commission is authorised to set a shorter period on its own initiative.

110    Similarly, point 55(d)(ii) of the Guidelines clearly provides, in the event that the Member State has submitted a restructuring plan, that the authorisation of the rescue aid will automatically be extended until the Commission takes a final decision on that plan. Moreover, no such authorisation was granted in the contested decision.

111    Lastly, it must be pointed out that, according to the Guidelines and in particular point 60 thereof, the purpose of rescue aid is to keep the beneficiary in business for six months, an objective which is difficult to reconcile with a reduction in the duration of the aid.

112    In the light of the foregoing, the third part of the second plea must be rejected.

 Assessment of the proportionality of the rescue aid

113    By the fourth part of the second plea, the applicant disputes, in essence, the Commission’s assessment that the aid at issue was proportionate to the objective pursued.

114    The Commission contends that the applicant’s arguments should be rejected.

115    First, the applicant notes that, as is apparent from paragraph 123 of the contested decision, the rescue aid covered, in part, Blue Air’s liquidity needs caused by travel restrictions in the context of the COVID-19 pandemic. Thus, according to the applicant, by authorising that aid, the Commission acted contrary to the objectives and logic of its communication 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) and amended on 3 April 2020 (OJ 2020 C 112 I, p. 1), which excluded the granting of aid to undertakings that were already in difficulty as of 31 December 2019, and allowed the granting of aid to the undertaking that is the least suited to reach the objective of aid related to the COVID-19 pandemic.

116    In that regard, first, it should be noted that neither of the two aid measures at issue was authorised under the communication referred to in paragraph 115 above.

117    Secondly, it should be noted that the damage compensation measure was intended to compensate Blue Air for the damage suffered during the period between 16 March and 30 June 2020, whereas the rescue aid allowed Blue Air to cover its liquidity needs for a different period, namely from September 2020 to February 2021. Moreover, as is apparent from the contested decision, the aid granted to Blue Air under the damage compensation measure was taken into account in the liquidity plan for the period from September 2020 to February 2021 and thus reduced the amount of rescue aid required.

118    Accordingly, the applicant’s claim is not such as to call into question the Commission’s assessment of the proportionality of the rescue aid.

119    Secondly, the applicant argues that the Commission made a manifest error of assessment in finding that the rescue aid did not exceed the minimum necessary to achieve the objective of common interest.

120    In that regard, point 60 of the Guidelines provides as follows:

‘Rescue aid must be restricted to the amount needed to keep the beneficiary in business for six months. In determining that amount, regard will be had to the outcome of the formula set out in Annex I. Any aid exceeding the result of that calculation will only be authorised if it is duly justified by the provision of a liquidity plan setting out the beneficiary’s liquidity needs for the coming six months.’

121    As regards the planned amount of rescue aid, it is apparent from paragraphs 45, 47, 112 and 118 of the contested decision that that amount is based on the liquidity plan drawn up by Romania. The Commission assessed that plan, which was based on revenue and cost projections, which formed part of the unprecedented and uncertain context of the period in which they had been drawn up in relation to all projections of the airlines’ activities. In its assessment, it considered that the liquidity plan did not include unusual or illegitimate expenditure such as the financing of structural measures or the expansion of activities beyond previous commitments.

122    The applicant does not put forward any argument capable of casting doubt on the plausibility of the liquidity plan. On the contrary, it merely compares Blue Air’s liquidity needs for the period taken into account for the rescue aid, namely between September 2020 and February 2021, with the unavoidable costs for an earlier period, between March and June 2020.

123    However, that comparison is irrelevant for the assessment of the amount of rescue aid. As the Commission rightly points out in its defence, there is no reason to suppose that the liquidity needs and unavoidable costs mentioned above, which moreover relate to different periods, correspond. It follows that the Commission was right to rely on the assumption, considered to be the most likely at the time of the adoption of the contested decision, of a resumption of air traffic during the rescue aid period, which therefore led to an increase in avoided costs (fuel, maintenance of aircraft, landing charges, etc.) during the containment period.

124    Thirdly, the applicant submits that the Commission was wrong to take the view, in paragraph 122 of the contested decision, that the liquidity plan did not include expenditure to finance structural measures. However, according to the applicant, the Commission failed to take account of the fact that Blue Air’s previous commitments included the large-scale replacement of its fleet, with the purchase of six Boeing 737‑MAX aircraft. Thus, rescue aid would in fact make it possible to finance structural measures and activities that go beyond what is strictly necessary to keep Blue Air afloat.

125    In that regard, it should be noted that, according to the Guidelines, rescue aid must be limited to the amount necessary to keep the beneficiary in business for six months and cannot be used to finance structural measures, such as the acquisition of important branches or assets. However, as the Commission has argued, it cannot be ruled out that the need for liquidity during those six months also includes the payment of instalments due during that period under earlier commitments concerning the replacement of aircraft. The non-repayment of such instalments could lead to the insolvency of the undertaking in difficulty, which would clearly run counter to the objective pursued.

126    Fourthly, as regards the applicant’s complaint that the Commission did not impose burden-sharing in order to have part of the losses absorbed by the beneficiary’s shareholders, it should be pointed out, in that regard, that measures to share the burden among existing investors are required only during the restructuring period and not during the rescue period, as is clear from the wording of point 61 of the Guidelines.

127    The Commission was therefore right not to impose burden-sharing.

128    Consequently, the fourth part of the second plea must be rejected.

 Adequacy of the Guidelines for the purpose of assessing the aid

129    By the fifth part of the second plea, the applicant submits, in essence, that the Guidelines are not appropriate for the purpose of assessing the aid at issue in so far as they do not address the specific exceptional circumstances resulting from the COVID-19 pandemic, which had not been envisaged when those Guidelines were adopted in 2014.

130    The Commission disputes the applicant’s arguments.

131    It should be recalled at the outset that the Commission has a wide discretion in the application of Article 107(3) TFEU, the exercise of which involves complex economic and social assessments that must be carried out in the European Union context. In the specific case of rescue aid, it limited itself in the exercise of that discretion in that regard by adopting the Guidelines, from which it cannot, in principle, depart (see, by analogy, judgment of 2 December 2010, Holland Malt v Commission, C‑464/09 P, EU:C:2010:733, paragraph 46 and the case-law cited).

132    With regard to the Guidelines, it should be noted that the applicant has not disputed that the rescue aid can be regarded as such within the meaning of those Guidelines. It merely complains that the Commission failed to examine whether those Guidelines were appropriate for assessing the rescue aid in the light of the exceptional circumstances of the COVID-19 crisis.

133    In support of its argument, the applicant cites the judgment of 8 March 2016, Greece v Commission (C‑431/14 P, EU:C:2016:145), paragraph 70 of which states that, ‘in the specific area of State aid, the Commission is bound by the guidelines that it issues, to the extent that they do not depart from the rules in the TFEU, including, in particular, Article 107(3)(b) TFEU … and to the extent that their application is not in breach of general principles of law, such as equal treatment, in particular where exceptional circumstances, different from those envisaged in those guidelines, distinguish a given sector of the economy of a Member State’.

134    Paragraph 72 of the judgment of 8 March 2016, Greece v Commission (C‑431/14 P, EU:C:2016:145), states that ‘the adoption of such guidelines does not relieve the Commission of its obligation to examine the specific exceptional circumstances relied on by a Member State, in a particular case, for the purpose of requesting the direct application of Article 107(3)(b) TFEU, and to provide reasons for its refusal to grant such a request, should the case arise’.

135    In the present case, it should be noted that the COVID-19 pandemic and the measures taken to contain it gave rise to exceptional circumstances for many undertakings in Europe, in particular for airlines.

136    It should be noted that, in the context of the fifth part of the second plea, the applicant has neither identified the specific rules of the Guidelines which, in its view, were rendered inappropriate because of the exceptional circumstances linked to the COVID-19 pandemic, nor explained the reasons why that is the case. Nor has it clarified whether, in its view, the Commission should disapply the Guidelines and instead apply Article 107(3)(c) TFEU directly. Such an argument is therefore too general and unsupported and thus does not enable the Court to understand its substance.

137    In those circumstances, the fifth part of the second plea must be rejected.

 Assessment of the negative effects of the rescue aid and the ‘one time, last time’ condition

138    By the sixth part of the second plea the applicant claims, in essence, first, that the Commission failed in the contested decision to examine whether the rescue aid adversely affected trading conditions to an extent contrary to the common interest, as required by Article 107(3)(c) TFEU. Thus, the applicant submits that the Commission failed to weigh the positive effects of the rescue aid on competition and trade against its negative effects, in order to ensure that the rescue aid outweighed the latter.

139    Secondly, the applicant also argues that, by authorising the rescue aid, the Commission infringed the ‘one time, last time’ condition laid down in point 71 of the Guidelines. According to the applicant, the Commission failed to take into account the fact that, on the one hand, Blue Air had received earlier aid in April 2020, namely a loan from the Romanian State-owned EximBank, and, on the other hand, Blue Air had issued in December 2019 bonds subscribed by SIF Banat-Crișana, a subscription in which the State’s participation cannot be excluded in so far as that subscription infringed the rules applicable to investment companies.

140    The Commission contends that the applicant’s arguments should be rejected.

141    First, it follows from a reading of the contested decision that the analysis referred to in paragraph 138 above is implicit in the Commission’s examination of the effects of the rescue aid on competition and trade. Indeed, it is because the negative effects of that aid on competition and trade are limited that the Commission was able to conclude that that aid did not affect trading conditions to an extent contrary to the common interest, as is apparent from paragraph 130 of the contested decision. That conclusion implies that, according to the contested decision, the positive effects of the aid in question on competition and trade outweighed its negative effects.

142    That argument cannot therefore be accepted.

143    Secondly, in paragraphs 127 and 128 of the contested decision, the Commission concluded that the ‘one time, last time’ condition, laid down in points 70 and 71 of the Guidelines, was satisfied.

144    In the present case, it is apparent from paragraph 128 of the contested decision that Romania, when it notified the Commission of its planned rescue aid to Blue Air, indicated that Blue Air had not received other rescue aid, restructuring aid or temporary restructuring support in the last 10 years.

145    It has not been demonstrated that there is any specific evidence that would have led the Commission to doubt the veracity of the information brought to its knowledge by Romania.

146    In that regard, it should be borne in mind that, according to the case-law, the legality of a decision concerning State aid falls to be assessed by the EU Courts in the light not only of the information available to the Commission at the time when the decision was adopted, but also of the information which could have been available to the Commission. The information which ‘could have been available’ to the Commission includes that which seemed relevant to the assessment to be carried out and which could have been obtained, upon request by the Commission, during the administrative procedure (judgment of 20 September 2017, Commission v Frucona Košice, C‑300/16 P, EU:C:2017:706, paragraphs 70 and 71).

147    However, although the Court of Justice has held that, when the existence and legality of State aid are being examined, it may be necessary for the Commission, where appropriate, to go beyond a mere examination of the facts and points of law brought to its attention, it cannot be inferred from that case-law that it is for the Commission, on its own initiative and in the absence of any evidence to that effect, to seek all information which might be connected with the case before it, even where such information is in the public domain (judgment of 2 September 2021, Commission v Tempus Energy and Tempus Energy Technology, C‑57/19 P, EU:C:2021:663, paragraph 45).

148    Accordingly, it was not incumbent on the Commission, by virtue of the case-law referred to in paragraphs 146 and 147 above, to seek, on its own initiative and in the absence of any evidence to that effect, all the information which might be connected with the case before it, even if such information was in the public domain.

149    As regards, first, the argument put forward by the applicant concerning the existence of a loan of approximately EUR 6 million which Blue Air allegedly received in April 2020 from the Romanian State-owned bank EximBank, it must be noted that there is no evidence that that loan constituted rescue aid or restructuring aid granted by the Romanian State.

150    In that regard, it should be noted that it is apparent from paragraph 52 of the judgment of 16 May 2002, France v Commission (C‑482/99, EU:C:2002:294), that ‘even if the State is in a position to control a public undertaking and to exercise a dominant influence over its operations, actual exercise of that control in a particular case cannot be automatically presumed’, that ‘therefore, the mere fact that a public undertaking is under State control is not sufficient for measures taken by that undertaking … to be imputed to the State’ and that ‘it is also necessary to examine whether the public authorities must be regarded as having been involved, in one way or another, in the adoption of those measures’.

151    In the present case, it must be stated that the applicant has not demonstrated that the Romanian authorities were in any way involved in the granting of the loan by EximBank to Blue Air in April 2020.

152    Second, as regards the applicant’s argument concerning the subscription of bonds by SIF Banat-Crișana for an amount of approximately EUR 9 million in December 2019, it should be noted, as the Commission did, that, first, SIF Banat-Crișana is a private entity and, secondly, the applicant has not adduced any concrete and specific evidence in support of the hypothesis that the Romanian authorities were involved in the decision by SIF Banat-Crișana to purchase those bonds.

153    In the light of the foregoing, the sixth part of the second plea and, therefore, that plea in its entirety, must be rejected.

 Third plea in law, alleging infringement of the principles of non-discrimination, freedom to provide services and freedom of establishment

154    The applicant claims that the Commission infringed the principle of non-discrimination and the principle of freedom to provide services and freedom of establishment, on the ground that the measure at issue benefits only Blue Air.

155    The Commission disputes the applicant’s arguments.

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

157    The third plea is divided, in essence, into two parts, alleging infringement of the principle of equal treatment and infringement of the principles of freedom to provide services and freedom of establishment.

 Infringement of the principle of equal treatment

158    By the first part of the third plea, the applicant claims, in essence, that the contested decision treats the comparable situation of airlines operating routes to and from Romania differently, offering an advantage to Blue Air without any objective justification. In support of that argument, the applicant points out, inter alia, that the COVID-19 pandemic had serious repercussions for all the airlines operating in Romania. The need to save Blue Air only, to the exclusion of other airlines operating in Romania, has not been established and the measure at issue goes beyond what is necessary to attain its objective.

159    As a preliminary point, it should be recalled that 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).

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

161    In addition, it should be noted that individual aid such as the measure 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. Thus, by its very nature, such individual aid introduces a difference in treatment, or even discrimination, which is nevertheless inherent in the individual nature of that measure (judgment of 14 April 2021, Ryanair v Commission (Finnair I; Covid-19), T‑388/20, under appeal, EU:T:2021:196, paragraph 81).

162    To maintain, as the applicant does, that the measure at issue is contrary to the principle of non-discrimination in essence amounts 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 character, even though EU law allows Member States to grant individual aid provided that all the conditions laid down in Article 107 TFEU are satisfied.

163    That being said, even if, as the applicant claims, the difference in treatment established by the measure at issue, in so far as it benefits only Blue Air, 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 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.

164    Therefore, it is important to ascertain whether that difference in treatment is permitted under Article 107(2)(b) and (3)(c) TFEU, which is the legal basis for the contested decision. That examination requires, first, that the objective of the measure at issue satisfies the requirements laid down in those two provisions and, secondly, that the conditions for granting the measure at issue, namely, in the present case, that it benefits only Blue Air, are such as to enable that objective to be achieved and do not go beyond what is necessary to achieve it.

165    In the present case, as regards the objective of the measure at issue, as stated in paragraph 4 above, part of it, namely the damage compensation measure, is aimed solely at compensating Blue Air for the damage directly suffered as a result of the cancellation or rescheduling of its flights following the introduction of travel restrictions in the context of the COVID-19 pandemic. In that regard, it must be noted that the applicant does not dispute that such a compensation measure makes it possible to remedy the damage caused by that pandemic, nor does it call into question the fact that the pandemic constitutes an exceptional occurrence within the meaning of Article 107(2)(b) TFEU. As regards the other part of the measure, namely the rescue aid, it is intended to cover in part Blue Air’s urgent liquidity needs resulting from the heavy operating losses which it recorded as a result of that pandemic and thus to enable it to continue its operations while drawing up a viable restructuring plan.

166    As regards the question whether the arrangements for granting the measure at issue are capable of achieving the objective pursued and do not go beyond what is necessary to achieve it, it is apparent from the examination of the first and second pleas that the granting of two loans guaranteed at 100% by the Romanian State solely to Blue Air is appropriate to achieve the objective pursued by the measure at issue and to satisfy the conditions laid down in Article 107(2)(b) and (3)(c) TFEU.

167    However, the applicant claims that the favourable treatment given to Blue Air is neither necessary nor proportionate to the objective pursued by Romania.

168    In that regard, first, it should be noted that, contrary to what the applicant claims, the measure at issue does not have the objective, apart from partially compensating Blue Air for the damage resulting from the COVID-19 pandemic, of ‘preserving the connectivity’ of Romania’s air transport. In the light of the objectives of that measure, recalled in paragraph 165 above, and in the light of the factors set out in paragraph 166 above, it must be held that the granting of two loans guaranteed at 100% by the Romanian State to Blue Air is necessary in order to pursue those objectives.

169    Secondly, contrary to what the applicant claims in its application, it must be pointed out that there was no obligation on the Commission to examine whether, in addition to maintaining Blue Air, the Member State concerned had to broaden the circle of beneficiaries of the measure at issue, since the contested decision establishes to the requisite legal standard the need to remedy the damage caused by the COVID-19 pandemic to Blue Air and to keep Blue Air on the market. It is important to note that, while the Commission is empowered to verify the compatibility of State aid with the common market, it does not conceive or design the aid and does not allocate it. Moreover, it cannot require a Member State to pay the same State aid to competing undertakings. It can only require a State not to pay out aid which it considers to be incompatible with the common market.

170    In addition, as regards, more specifically, Article 107(2)(b) TFEU, it should be recalled that Member States are not obliged to make good all the damage caused by an exceptional occurrence and, consequently, to grant aid to all the victims of that damage.

171    Accordingly, the applicant’s arguments in that regard must be rejected.

172    Thirdly, the applicant claims that the fact that Blue Air receives 100% of the measure at issue, even though its share in Romania’s connectivity is less than 100%, goes beyond what is necessary to achieve the objective pursued by that measure and is therefore disproportionate. In its submission, if the aid is allocated to all the airlines that operate in Romania, based on their market share, the objective of the measure would be reached with no discrimination.

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

174    In the present case, it must be held that, in any event, in the light of the considerations set out in the examination of the third and fourth parts of the second plea, in particular those set out in paragraphs 105 to 111 and in paragraphs 115 to 127 above, the grant of rescue aid only to Blue Air did not exceed the limits of what was appropriate and necessary in order to achieve the legitimate objectives pursued by Romania and was not, therefore, contrary to what the applicant claims, disproportionate.

175    As regards the damage compensation measure, it must be held, as demonstrated in the context of the examination of the first part of the first plea, that the Commission did not err in its assessment of the proportionality of the aid to the damage caused by the COVID-19 crisis.

176    In addition, it should be added that an allocation of the measure at issue to all airlines operating in Romania, on the basis of their market share, as proposed by the applicant, would have the effect of reducing the amount of aid granted to Blue Air, with the result that its liquidity needs would not be covered, which, therefore, could have serious repercussions on the mobility of small entrepreneurs and on the economy, in particular local economy, in Romania, given the importance of that company for them.

177    The applicant’s arguments in that regard must therefore be rejected.

178    In the light of all the foregoing, it must be held that the grant of the measure at issue solely to Blue Air did not go beyond what was necessary to achieve the objective pursued by it. It follows that granting the benefit of the measure at issue only to Blue Air was justified and that the measure did not infringe the principle of non-discrimination.

 Infringement of the principles of freedom to provide services and freedom of establishment

179    By the second part of the third plea, the applicant submits that the Commission should have determined, when assessing the compatibility of the measure at issue, whether the form of the aid granted in the present case, namely two loans 100% guaranteed by the Romanian State, complied with the principle of the freedom to provide services and freedom of establishment. By failing to do so, the Commission erred in law. The applicant submits that reserving the measure at issue solely to Blue Air would restrict the rights of other airlines in the European Union to provide their services freely within the internal market. The contested decision therefore entails an unjustified restriction of the principles of the freedom to provide services and freedom of establishment.

180    As a preliminary point, 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 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).

181    Measures liberalising air transport services may therefore be adopted only under Article 100(2) TFEU (judgment of 18 March 2014, International Jet Management, C‑628/11, EU:C:2014:171, paragraph 38). As the applicant rightly notes, the EU legislature adopted 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) 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 freedom to provide services (see, by analogy, judgment of 6 February 2003, Stylianakis, C‑92/01, EU:C:2003:72, paragraphs 23 and 24).

182    In the present case, while it is true that the measure at issue relates to two individual aid measures, namely a damage compensation measure and rescue aid, which benefit only Blue Air, the applicant does not establish how that exclusivity is such as to deter it from providing services to and from Romania or from exercising its freedom of establishment in that Member State. In particular, it fails to identify the elements of fact or law which cause the measure at issue to produce restrictive effects that go beyond those which trigger the prohibition in Article 107(1) TFEU, but which, as was found in paragraphs 165 to 173 above and in paragraphs 105 to 111 and 113 to 127 above, are nevertheless necessary and proportionate in order, first, to make good the damage caused by the COVID19 pandemic, in accordance with the requirements of Article 107(2)(b) TFEU and, on the other hand, partially cover Blue Air’s urgent liquidity needs in order to avoid its exit from the market, in accordance with Article 107(3)(c) TFEU, read in the light of the Guidelines.

183    Consequently, the measure at issue does not constitute a restriction on the applicant’s freedom of establishment or freedom to provide services. It follows that the applicant is not justified in complaining that the Commission failed to expressly examine the compatibility of that measure with the freedom of establishment and the freedom to provide services.

184    In those circumstances, the applicant’s third plea must be rejected.

 Fourth plea in law, alleging that the Commission relied on inexistent or inadequate evidence

185    The applicant claims, in essence, that the Commission, in the contested decision, made several assertions without substantiating them, relying solely on the factual information that Romania had provided to it. The assertions cited by the applicant are as follows: (i) Blue Air is 99.99% owned by a private individual who is not part of a group of companies, (ii) Blue Air is a low-cost airline, (iii) the applicant and other low-cost airlines are not interested in operating the routes operated by Blue Air, (iv) the applicant and other low-cost airlines operate routes only to large airports, (v) the applicant does not serve airports close to those it already serves and (vi) the disappearance of Blue Air would have an impact on other market players.

186    Moreover, the Commission failed to take into account relevant assessment factors concerning, on the one hand, the alleged considerable overcapacity and the alleged high number of aircraft immobilised on the ground due to the COVID-19 crisis and, on the other hand, the grant of a loan by the Romanian State to Blue Air in 2019 and April 2020. According to the applicant, such information was available to the Commission on the date of adoption of the contested decision and, moreover, easily accessible on the internet.

187    The Commission disputes the applicant’s arguments.

188    In that regard, as the Commission rightly points out, the present plea, which relates exclusively to the assessment of the rescue aid carried out in the light of the Guidelines, has no independent content in so far as the applicant refers only to allegations which it had already raised in the context of its second plea.

189    Therefore, for the reasons set out in the context of the examination of the second plea, the fourth plea must be rejected.

 Fifth plea in law, alleging that the Commission should have initiated the formal investigation procedure

190    The applicant submits, in essence, that the examination carried out by the Commission was incomplete and insufficient, in particular as regards the assessment of the damage caused by the COVID-19 pandemic to Blue Air and that relating to the amount of the damage compensation measure, the conditions for granting rescue aid in the light of the Guidelines and the compatibility of the measure at issue with the principles of non-discrimination, freedom to provide services and freedom of establishment. The insufficient nature of the examination carried out by the Commission is evidence of the existence of serious difficulties, which should have led it to open the formal investigation procedure and give the applicant the opportunity to submit its observations and, thus, to influence that investigation.

191    The Commission disputes the applicant’s arguments.

192    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 ought to have raised doubts as to the compatibility of that measure with the internal market (see, to that effect, judgments of 22 December 2008, Régie Networks, C‑333/07, EU:C:2008:764, paragraph 81; of 9 July 2009, 3F, 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 fifth plea repeats in condensed form the arguments raised under the first to third pleas, without identifying specific evidence relating to potential serious difficulties.

193    For those reasons, the fifth plea must be rejected.

 Sixth plea in law, alleging breach of the obligation to state reasons

194    The applicant claims, in essence, that the Commission’s reasoning in the contested decision is either non-existent or contradictory. In particular, the Commission failed to assess the value of the competitive advantage granted to Blue Air and did not assess the damage caused by the travel restrictions linked to the COVID-19 pandemic. Moreover, it did not put forward any reasons, first, concerning the damage caused by difficulties from before the pandemic and, secondly, making it possible to know whether the avoided costs included all the avoidable costs. In addition, it did not examine whether the Guidelines were appropriate for the purpose of assessing the rescue aid at issue in the unprecedented context of that pandemic and whether incomplete or irrelevant explanations were provided concerning the replicability of Blue Air’s services. Lastly, the Commission also failed to assess whether the measure at issue was non-discriminatory or whether it complied with the principles of freedom to provide services and freedom of establishment.

195    The Commission disputes the applicant’s arguments.

196    In that regard, it should be borne in mind that the statement of reasons required by Article 296 TFEU is an essential procedural requirement (judgment of 18 June 2015, Ipatau v Council, C‑535/14 P, EU:C:2015:407, paragraph 37) and must be appropriate to the measure at issue and disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure at issue in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review. Accordingly, the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure at issue, 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 laid down by that article must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgments of 22 June 2004, Portugal v Commission, C‑42/01, EU:C:2004:379, paragraph 66; of 15 April 2008, Nuova Agricast, C‑390/06, EU:C:2008:224, paragraph 79; and of 8 September 2011, Commission v Netherlands, C‑279/08 P, EU:C:2011:551, paragraph 125).

197    In the present case, as regards the measure at issue, the contested decision was adopted at the end of the preliminary stage of the procedure for reviewing aid under Article 108(3) TFEU, which is intended merely to allow the Commission to form a prima facie opinion on the partial or complete compatibility of the aid concerned without opening the formal investigation procedure under Article 108(2) TFEU, which is designed to enable the Commission to be fully informed of all the facts pertaining to that aid.

198    Such a decision, which is taken within a short period of time, must simply set out the reasons for which the Commission takes the view that it is not faced with serious difficulties in assessing the compatibility of the aid at issue with the internal market (judgment of 22 December 2008, Régie Networks, C‑333/07, EU:C:2008:764, paragraph 65).

199    In that regard, first, the applicant complains that the Commission assessed both the damage caused directly by the COVID-19 pandemic and that resulting from the difficulties that Blue Air already had to face before that pandemic, that it failed to assess the value of the competitive advantage granted to Blue Air and failed to ensure that the amount of the avoided costs reflected the maximum mitigation of costs.

200    However, it is apparent from paragraphs 19 to 30 above that the applicant was able to ascertain the reasons for the measure taken and that the General Court was able to exercise its power of review as regards the distinction drawn by the Commission between the pre-existing difficulties and those linked to the COVID-19 pandemic and the fact that only damage resulting from that pandemic was compensated under Article 107(2)(b) TFEU.

201    Moreover, in so far as the applicant refers to the competitive advantage resulting from the discriminatory nature of the measure at issue, it is sufficient to note, as is clear from paragraph 48 above, that the Commission was not required to take such an advantage into consideration for the purpose of assessing the compatibility of that measure with the internal market, so that it was not required to refer to it in the contested decision.

202    Lastly, it is apparent from paragraphs 29 to 32 and 92 to 94 of the contested decision that the Commission set out the method for calculating the damage suffered during the compensation period and defined the avoided costs to be used in that calculation. In that regard, it explained that the damage did not include the avoided costs due to the suspension of flights linked to the COVID-19 pandemic and recalled that Article 107(2)(b) TFEU required only that the aid should not exceed the amount of damage actually suffered and directly related to the exceptional occurrence and did not require it to deduct from the damage all the costs that Blue Air could have avoided.

203    Secondly, the applicant claims, in essence, that the Commission failed to examine whether the Guidelines were appropriate for assessing the rescue aid at issue in the unprecedented context of the COVID-19 pandemic and provided incomplete or irrelevant explanations as regards the replicability of Blue Air’s services.

204    However, as was stated in the context of the examination of the fifth part of the second plea, in particular in paragraph 132 above, the rescue aid falls within the scope of the Guidelines, which is not disputed by the applicant. Accordingly, the Commission was not required to provide further reasons in that regard.

205    As regards the alleged inadequacy of the statement of reasons relating to the replicability of Blue Air’s services, it must be noted that the contested decision contains the information, referred to in paragraphs 82 to 93 above, which makes it possible to understand the reasons why those services could not, according to the Commission, in the circumstances of the present case, have been provided in the short term by other low-cost competing airlines.

206    Thirdly, the applicant complains that the Commission failed to assess whether or not the aid was discriminatory and whether it complied with the principles of the freedom to provide services and freedom of establishment.

207    However, it must be held that, since the Commission set out, in the contested decision, the reasons for the necessity and appropriateness of the measure at issue, it was not necessary, with regard in particular to individual aid and in view of the context in the present case, to dwell on demonstrating compliance with the principle of equal treatment and the principles of the freedom to provide services and freedom of establishment.

208    It follows that the contested decision contains a sufficient statement of reasons and that, consequently, the applicant’s sixth plea must be rejected.

209    It follows from all of the foregoing that the action must be dismissed in its entirety, without there being any need to rule on its admissibility.

 Costs

210    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, in accordance with the form of order sought by the latter.

On those grounds,

THE GENERAL COURT (Tenth Chamber, Extended Composition)

hereby:

1.      Dismisses the action;

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

Delivered in open court in Luxembourg on 29 March 2023.

*      Language of the case: English.

1      The present judgment is the subject of publication in extract form.

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