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

OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 4 October 2024 (1)

Joined Cases C-244/23 P to C-246/23 P

European Commission

v

Carpatair SA (C-244/23 P)

and

Wizz Air Hungary Légiközlekedési Zrt. (Wizz Air Hungary Zrt.) (C-245/23 P)

Societatea Națională ‘Aeroportul Internaţional Timişoara - Traian Vuia’ SA (AITTV) (C-246/23 P)

v

Carpatair SA,

European Commission (C-245/23 P and C-246/23 P)

( Appeal - State aid - Aviation sector - Measures implemented by Romania in favour of Timișoara airport - Measures implemented by Timișoara airport in favour of Wizz Air and airlines using that airport - Decision finding, in part, that there was no State aid in favour of Timișoara airport and airlines using that airport - Advantage - Private operator test )

I.      Introduction

1.        By their respective appeals in the present cases, the European Commission (Case C-244/23 P), Wizz Air Hungary Légiközlekedési Zrt. (Wizz Air Hungary Zrt.) (‘Wizz Air’) (Case C-245/23 P) and Societatea Națională ‘Aeroportul Internaţional Timişoara - Traian Vuia’ SA (AITTV) (‘AITTV’) (Case C-246/23 P) ask the Court of Justice to set aside the judgment of the General Court of the European Union of 8 February 2023, Carpatair v Commission (T-522/20, ‘the judgment under appeal’, EU:T:2023:51), by which it annulled Article 2 of Decision (EU) 2021/1428 (2) (‘the contested decision’) in so far as it concludes that the airport charges in the Aeronautical Information Publication of 2010 and the agreements concluded between AITTV and Wizz Air during 2008 (including the 2010 (3) amendment agreements) do not constitute State aid.

2.        In support of their appeals, the appellants claim that the General Court erred in law in the interpretation of Article 107(1) TFEU, having regard, inter alia, to the market economy operator principle and the taking of evidence.

3.        The present cases offer the Court of Justice the opportunity to provide clarification as to the rules governing proof that a measure of a Member State complies with that principle.

II.    Background to the dispute and the contested decision

4.        The background to the dispute, as set out by the General Court in paragraphs 2 to 16 of the judgment under appeal, may be summarised as follows.

5.        AITTV, a joint stock company in which the Romanian State holds 80% of the capital, operates Timișoara International Airport (Romania) (‘Timișoara airport’).

6.        During 2008, as part of a strategy intended to attract low-cost airlines and increase the overall profitability of the airport, AITTV signed agreements with Wizz Air, a Hungarian low-cost airline, determining the principles of their cooperation as well as the terms and conditions for the use of the airport infrastructure and services by Wizz Air (‘the 2008 agreements’). On 25 June 2010, two of those agreements were amended by way of a new scheme agreed between Wizz Air and AITTV, covering the period up to 6 February 2011 (‘the 2010 amendment agreements’). Wizz Air began operating flights from Timișoara airport in October 2008.

7.        On 30 September 2010, Carpatair, a Romanian regional airline, submitted a complaint to the Commission regarding alleged unlawful State aid in favour of Wizz Air.

8.        On 24 May 2011, the Commission notified Romania of its decision to initiate the formal investigation procedure provided for in Article 108(2) TFEU concerning, inter alia, the discounts and rebates on airport charges granted under the 2007, 2008 and 2010 aeronautical information publications (‘AIPs’) and under the 2008 agreements.

9.        As from the year 2014, Carpatair ceased its operations at Timișoara airport and underwent a judicial reorganisation procedure. Its main base of operations is now located at Arad airport (Romania), from which it offers, inter alia, charter flights. It no longer offers scheduled flights.

10.      On 24 February 2020, the Commission adopted the contested decision.

11.      As regards the airport charges published in the 2007, 2008 and 2010 AIPs, the Commission concluded that the base rate, the rebates and the discounts on those charges were not selective and did not constitute State aid within the meaning of Article 107(1) TFEU.

12.      As regards the 2008 agreements and the 2010 amendment agreements (together, ‘the 2008 and 2010 agreements’), the Commission found, taking into account the prior economic evaluations which a private operator in a similar situation, in line with available and foreseeable factors, should have carried out, that those agreements should have led to the AITTV being marginally profitable. Consequently, it found that a prudent private operator in a market economy would have entered into such agreements. Moreover, those agreements formed part of an overall strategy and long-term effort towards the overall profitability of Timișoara airport. The Commission therefore concluded that those agreements had not conferred an economic advantage on Wizz Air which it would not have obtained under normal market conditions, and therefore that they did not constitute State aid within the meaning of Article 107(1) TFEU.

III. The proceedings before the General Court and the judgment under appeal

13.      By application lodged at the Registry of the General Court on 11 August 2020, Carpatair brought an action for the annulment of the contested decision.

14.      By the judgment under appeal, the General Court annulled Article 2 of the contested decision, by which the Commission found that neither the airport charges in the 2007, 2008 and 2010 AIPs, nor the 2008 and 2010 agreements, constituted State aid within the meaning of Article 107(1) TFEU.

15.      In particular, the General Court held that the Commission, first, erred in law by failing to examine whether the discount on airport charges provided for in point 7.3 of the 2010 AIP, taken individually, was selective and, secondly, failed to state grounds in law for its conclusion that the 2008 and 2010 agreements had not conferred an economic advantage on Wizz Air which it would not have obtained under normal market conditions.

IV.    The forms of order sought and the proceedings before the Court of Justice

16.      In Case C-244/23 P, the Commission claims, by its appeal, that the Court should:

-        set aside the judgment under appeal in so far as it upheld Carpatair’s second plea in law;

-        reject that plea in law; and

-        order Carpatair to pay the costs of both proceedings.

Carpatair submits that the Court should:

-        dismiss the appeal; and

-        order the Commission to pay the costs of both proceedings.

17.      In Case C-245/23 P, Wizz Air claims that the Court should:

-        set aside the judgment under appeal;

-        dismiss the action brought at first instance by Carpatair; and

-        order Carpatair to pay the costs of both proceedings.

The Commission submits that the Court should:

-        set aside the judgment under appeal; and

-        order Carpatair to pay the costs.

Carpatair submits that the Court should:

-        dismiss the appeal; and

-        order Wizz Air to pay the costs of both proceedings.

18.      In Case C-246/23 P, AITTV claims that the Court should:

-        set aside the judgment under appeal;

-        dismiss the action at first instance brought by Carpatair or remit the matter to the General Court; and

-        order Carpatair to pay the costs of both proceedings or reserve the question of costs.

The Commission submits that the Court should:

-        set aside the judgment under appeal; and

-        order Carpatair to pay the costs.

Carpatair submits that the Court should:

-        dismiss the appeal; and

-        order AITTV to pay the costs of both proceedings.

V.      Analysis

19.      As requested by the Court, this Opinion will be limited to analysing the complaints set out in the Commission’s single ground of appeal in Case C-244/23 P, the fourth ground of appeal put forward by Wizz Air in Case C-245/23 P and the third and fourth grounds of appeal put forward by AITTV in Case C-246/23 P, concerning errors of law allegedly committed by the General Court in its interpretation of Article 107(1) TFEU and the concept of ‘advantage’ for the purposes of that provision, in respect of the 2008 and 2010 agreements.

20.      Those complaints all revolve around the question of how to prove that a measure granted to an undertaking through State resources complies with the market economy operator principle, in order to determine whether that measure is capable of conferring an advantage, for the purposes of Article 107(1) TFEU, to the undertaking benefiting from it. In particular, the question arises whether it is possible for the Commission, when applying that principle, to rely on economic analyses carried out after the adoption of the measure at issue and demonstrating its profitability, but based exclusively on information which was available at the time when that measure was adopted, in so far as no similar analysis was carried out before the adoption of that measure.

21.      In those circumstances, I consider it useful to make a number of general points concerning the market economy operator principle and the proof that it has been complied with. I shall then consider the question of whether factors subsequent to a State intervention can be taken into account with the aim of demonstrating that such intervention is indeed consistent with that principle, before examining the grounds of appeal put forward by the Commission, Wizz Air and AITTV.

A.      The market economy operator principle

22.      The market economy operator principle (4) is a tool for determining whether a State measure is capable of constituting an advantage, for the purposes of Article 107(1) TFEU, and, in so far as the other conditions of the concept of ‘aid’ are met, State aid.

23.      It is settled case-law that the definition of ‘aid’, within the meaning of Article 107(1) TFEU, cannot cover a measure granted to an undertaking through State resources where it could have obtained the same advantage in circumstances which correspond to normal market conditions, as the assessment of the conditions under which such an advantage was granted is made, in principle, by applying the market economy operator principle. (5)

24.      Moreover, it is clear from the case-law that the market economy operator principle is one of the factors that the Commission is required to take into account for the purposes of establishing the existence of aid and is not, therefore, an exception that applies only if a Member State so requests, when it has been found that the constituent elements of ‘State aid’, as laid down in Article 107(1) TFEU, exist. (6)

25.      In other words, the determination of an advantage for the purposes of Article 107(1) TFEU requires the Commission to examine the measure at issue in the light of the market economy operator principle.

26.      That examination is carried out in two stages. It must be ascertained, in the first place, whether the market economy operator principle is applicable, and then determined, in the second place, whether the conditions for its application are met.

1.      The applicability of the market economy operator principle

27.      As regards the applicability of the market economy operator principle, according to the case-law, this ultimately depends on the Member State concerned having conferred, in its capacity as operator and not in its capacity as public authority, an economic advantage on an undertaking. (7) In other words, it is the capacity in which the Member State acts which determines whether that principle applies, it being specified that it is a question of determining whether, before or at the same time as conferring the economic advantage, the Member State concerned took the decision, by means of the measure actually implemented, to make an investment. (8)

28.      In that regard, the case-law of the Court sets out a number of factors which may be taken into account in order to establish that the Member State is acting in its capacity as an operator in the implementation of a State measure. Accordingly, reference is made to the nature and subject matter of that measure, its context, the objective pursued and the rules to which the measure is subject. (9) The Court has also pointed out that it may be necessary to produce evidence showing that the decision to make an investment is based on economic evaluations comparable to those which, in the circumstances of the present case, a rational private operator in a situation as close as possible to that of the Member State would have had carried out, before proceeding with that measure, in order to determine its future profitability. (10)

29.      By contrast, the Court has ruled out the possibility that economic evaluations made after the advantage was conferred, on a retrospective finding that the investment made by the Member State concerned was profitable, or subsequent justifications of the course of action actually chosen may be sufficient to establish that the Member State took that decision as an operator. (11)

30.      I note, however, that, in many situations, (12) as in the present case, the applicability of the market economy operator principle is not in dispute. On the contrary, it is generally presumed, given that the measure clearly falls within the Member State’s capacity as operator. The Commission does not therefore systematically carry out an express examination of it. As the Court has pointed out, it is where there are doubts as to the applicability of the market economy operator principle that the Member State must establish unequivocally and on the basis of objective and verifiable evidence that the measure implemented falls to be ascribed to the State acting as an operator. (13)

31.      The Commission’s examination of compliance with the market economy operator principle may therefore, in many cases, focus on the analysis of the conditions for the application of that principle.

2.      The application of the market economy operator principle

32.      As regards, specifically, the application of the market economy operator principle, I would point out that it is applied in order to determine whether, because of its effects, the economic advantage granted, in whatever form, through State resources to an undertaking distorts or threatens to distort competition and affects trade between Member States. (14)

33.      The application of that principle entails, according to the case-law, verifying not whether a private operator would have acted in exactly the same way as the public operator, but whether, in similar circumstances, it would have contributed an amount equal to that contributed by the public operator. (15)

34.      It is for the Commission to carry out such an analysis. As I have stated, the market economy operator principle is one of the factors that that institution is required to take into account for the purposes of establishing the existence of aid. The Court has emphasised that the Commission therefore has the burden of proving, taking into account, inter alia, the information provided by the Member State concerned, that the conditions for the application of the private operator principle have not been satisfied, so that the State intervention at issue entails an advantage for the purposes of Article 107(1) TFEU. (16)

35.      In other words, in its analysis of the application of the market economy operator principle, the Commission must demonstrate positively that a private operator in a situation as close as possible to that of the Member State would not have implemented the measure at issue. The Court has stated in that regard that the Commission cannot assume that an undertaking has benefited from an advantage constituting State aid solely on the basis of a negative presumption, based on a lack of information enabling the contrary to be found, if there is no other evidence capable of positively establishing the actual existence of such an advantage. (17)

36.      According to the Court, the Commission must therefore carry out an overall assessment, taking into account all relevant evidence in the case enabling it to determine whether the recipient company would manifestly not have obtained comparable facilities from such a private operator, (18) it being stipulated that all information liable to have a significant influence on the decision-making process of a normally prudent and diligent private operator must be regarded as being relevant. (19)

37.      Factors showing the profitability and economic rationality of the State intervention are therefore particularly relevant in that regard.

38.      The Court has, however, limited the factors which may be taken into account in the context of that overall assessment. First, the Court has stated that, in order to assess whether the same measure would have been adopted in normal market conditions by a private operator in a situation as close as possible to that of the Member State, only the benefits and obligations linked to the situation of the State as shareholder - to the exclusion of those linked to its situation as a public authority - are to be taken into account. (20) In other words, it is of little importance that a State measure benefits the Member State as a public authority, in that it contributes, by way of illustration, to the attainment of an aim in the public interest. The application of the market economy operator principle is based solely on the analysis of the economic rationality of the measure for the Member State acting as an operator, from a strictly economic point of view.

39.      Secondly, the Court has emphasised the need, for the purposes of applying the market economy operator principle, to place oneself in the context of the period during which the financial support measures were taken in order to assess the economic rationality of the Member State’s conduct, and thus to refrain from any assessment based on a later situation. (21) In so doing, it held that factors arising after the measure at issue has been adopted cannot be taken into account for the purpose of applying the private operator principle and that the only relevant evidence is the information which was available, and the developments which were foreseeable, at the time when the decision to proceed with the measure at issue was taken. (22)

40.      I shall carry out a detailed analysis of the scope of that assertion.

B.      The consideration of factors arising after the adoption of a State measure in the context of its examination in the light of the market economy operator principle

41.      The parties disagree as to whether the case-law of the Court concerning the production of evidence of the market economy operator principle allows, in the examination of its application, account to be taken of economic analyses made after the adoption of a measure by a Member State, based solely on information available before that measure was adopted.

42.      It is true that a reading of the case-law may give rise to certain doubts as to the answer to be given to that question.

43.      On the one hand, the Court has noted that the economic assessment carried out by the Commission necessarily takes place where the aid has been granted in infringement of the notification obligation laid down in Article 108(3) TFEU, after the adoption of the measure concerned. It follows that economic analyses drawn up after the adoption of that measure may be relevant, provided that they are based only on the information which was available, and the developments which were foreseeable, at the time when the decision to proceed with the measure at issue was taken. (23)

44.      On the other hand, the Court has consistently held that factors arising after the State measure at issue has been adopted cannot be taken into account for the purpose of applying the market economy operator principle. (24) Moreover, it has pointed out that the absence of any appropriate prior evaluations of the profitability or economic rationality of a measure may constitute an essential factor suggesting that a private operator would not, in similar circumstances, have contributed an amount equal to that contributed by the public investor. (25)

45.      In other words, it could be inferred from the case-law that, although an economic analysis intended to demonstrate the rationality of a State measure drawn up after its adoption on the basis of information available at the time of that adoption may be taken into account, such an analysis is not sufficient, however, to make up for the absence of an economic analysis prior to the measure, which is the central element of the analysis of the application of the market economy operator principle.

46.      That is, moreover, the sense in which the General Court, in paragraph 191 of the judgment under appeal, interpreted the case-law of the Court of Justice.

47.      In my view, however, such a solution gives rise to a degree of confusion between the relevant factors for the purposes of establishing that the market economy operator principle is applicable and those intended to demonstrate its application, even though the examination of the applicability of that principle must be distinguished from the examination of the application of that principle. (26)

48.      Accordingly, I would point out that the applicability of the market economy operator principle depends on the capacity in which the Member State acts and requires it to be determined whether the Member State took the decision to make an investment by means of the State measure. (27)

49.      In those circumstances, it seems to me essential, when determining the applicability of the market economy operator test, to place oneself at the time when that decision was taken and to adopt a strict approach by accepting only evidence contemporaneous with the adoption of the decision. It is therefore necessary to exclude from that analysis any element subsequent to that time and to rely exclusively on the factors which guided the Member State in its decision-making process.

50.      In that context, recourse to an economic analysis before the adoption of the State measure, intended to assess the economic rationality of that measure, is therefore particularly relevant. Similarly, the absence of any prior economic assessment seems to me to be a particularly telling indication that the Member State is not acting as an operator, since its decision has not been guided by the need for economic rationality.

51.      However, such an approach is, in my view, too radical when it comes to determining the conditions for applying the market economy operator principle. The absence of any prior economic assessment cannot, at the stage of applying the principle, have the same significance as in the context of the examination of its applicability.

52.      I note that, with regard to the market economy operator principle, it is settled case-law that it seeks to determine whether, because of its effects, the State measure at issue distorts or threatens to distort competition and affects trade between Member States. More generally, the Court has held that Article 107(1) TFEU, in general, defines measures of State intervention in relation to their effects. (28)

53.      From that point of view, an economic analysis carried out after the adoption of that measure and based exclusively on the information available at that time, in so far as it seeks to establish the economic rationality of a State measure and thus to demonstrate that it has no adverse effects on competition and trade between the Member States, is, in my opinion, relevant evidence that the Member State’s conduct complies with the market economy operator principle.

54.      More specifically, I take the view that, once the applicability of the market economy operator principle has been established, despite the absence of ex ante economic assessments, the application of that principle can still be demonstrated by subsequent economic assessments based on information available at the time when the State measure was taken. The absence of a prior economic assessment is, in my view, at the stage of applying that principle, one piece of evidence among others that the Member State’s conduct does not comply with that principle. Without being irrelevant, such an absence cannot therefore lead to an economic analysis demonstrating the economic rationality of a State measure being disregarded where that analysis is based exclusively on information available at the time when that measure was adopted.

55.      A narrow interpretation of the evidence of the market economy operator principle that must be taken into account when applying that principle would, in my view, run counter to the very purpose of that principle, according to which it is first and foremost the effects of a State measure that are taken into account in order to determine whether that measure entails an advantage for the beneficiary and, therefore, whether it constitutes aid within the meaning of Article 107(1) TFEU.

56.      It is in the light of those considerations that I shall analyse the grounds of appeal alleging an error of law in the interpretation of Article 107(1) TFEU and of the concept of ‘advantage’, within the meaning of that provision, in respect of the 2008 and 2010 agreements.

C.      The complaints alleging an error of law in the interpretation of Article 107(1) TFEU and of the concept of ‘advantage’, within the meaning of that provision, in respect of the 2008 and 2010 agreements

57.      The Commission, Wizz Air and AITTV submit that the General Court erred in law, first, by finding that the Member State was obliged to carry out an economic assessment prior to the conclusion of the 2008 and 2010 agreements and, secondly, by rejecting as irrelevant an analysis of the profitability of the measure at issue carried out after its adoption but based exclusively on information available before its adoption.

58.      The General Court found, in paragraphs 186 to 192 of the judgment under appeal, that the Commission concluded that the 2008 agreements were profitable on the basis of an ex ante profitability analysis which was reconstructed ex post on the basis of the data available before the conclusion of the 2008 agreements. However, the General Court held that such an analysis was in fact irrelevant for the purpose of assessing compliance with the market economy operator principle.

59.      According to the General Court, that analysis is merely a retrospective finding that the measure at issue was profitable. According to the case-law, factors arising after a State measure has been adopted cannot be taken into account for the purpose of applying the market economy operator principle.

60.      In addition, although the General Court accepted that additional evidence generated after the adoption of the measure at issue may be relevant, it took the view, however, that such evidence could not in any circumstances exempt the body implementing that measure from the obligation to carry out an appropriate prior economic evaluation having regard to the nature, complexity, size and context of the operation.

61.      In so doing, the General Court concluded that the Commission had failed to state grounds in law for its conclusion that the 2008 and 2010 agreements had not conferred an economic advantage on Wizz Air which it would not have obtained under normal market conditions and held that Article 2 of the contested decision, in accordance with which the 2008 and 2010 agreements did not constitute State aid, had to be annulled.

62.      The General Court’s reasoning seems to me, however, to be based on a misinterpretation of Article 107(1) TFEU and, more specifically, on the market economy operator principle.

63.      First of all, it is clear from the Court of Justice’s case-law that analyses carried out after the adoption of the State measure are relevant for the purposes of the application of the market economy operator principle inasmuch as they are based only on the information which was available, and the developments which were foreseeable, at the time when the decision to proceed with the measure at issue was taken. (29)

64.      While the General Court was entitled to hold that such an analysis could not amount to an ex ante analysis, it could not, by contrast, classify that analysis as a ‘mere retrospective finding’ that those agreements were actually profitable, without entirely excluding, contrary to the case-law of the Court of Justice, the consideration of economic analyses made after the adoption of the measure at issue and based only on the information which was available, and the developments which were foreseeable, at the time when the decision to proceed with the measure at issue was taken.

65.      Next, as I have explained, (30) I am of the view that, at the stage of applying the market economy operator principle, as analysed in the present case, the absence of an appropriate prior evaluation of the profitability and economic rationality of the measure at issue cannot, in itself, permit the conclusion that that measure is not consistent with that principle.

66.      In my view, the General Court could not therefore, without committing an error of law, conclude that the Member State was required to carry out an appropriate prior economic evaluation.

67.      Lastly, by holding that the analysis at issue was not capable of making up for the absence of an economic analysis prior to the measure concerned, the General Court made that absence the decisive factor in proving the application of the market economy operator principle. As I have stated, that absence is only one piece of evidence among others which can be weighed against analyses which, although subsequent, are based only on the information which was available, and the developments which were foreseeable, at the time when the decision to proceed with the measure at issue was taken.

68.      The General Court’s conclusion that the analysis in question was irrelevant for the purpose of assessing compliance with the market economy operator principle therefore appears to me to be vitiated by an error of law.

69.      It follows, in my view, that the grounds of appeal alleging errors of law in the interpretation of Article 107(1) TFEU and of the concept of ‘advantage’, within the meaning of that provision, in respect of the 2008 and 2010 agreements, should be upheld.

70.      I note that, in the judgment under appeal, the General Court examined Carpatair’s second plea in law only in part. In particular, as is clear from paragraph 200 of the judgment under appeal, the second part of that plea was not examined.

71.      Since the case is not ready for judgment in respect of that part of the plea, as its examination requires factual analyses of the Commission’s assessment of the 2008 and 2010 agreements which go beyond the jurisdiction of the Court of Justice in an appeal, I am of the opinion that the present case should be referred back to the General Court.

VI.    Conclusion

72.      In the light of the foregoing, I propose that the Court should:

-        uphold the single ground of appeal in Case C-244/23 P;

-        uphold the fourth ground of appeal in Case C-245/23 P;

-        uphold the third and fourth grounds of appeal in Case C-246/23 P; and

-        consequently, set aside the judgment of the General Court of the European Union of 8 February 2023, Carpatair v Commission (T-522/20, EU:T:2023:51), in so far as the General Court upheld the second plea in law in that case, and refer the case back to the General Court.

1      Original language: French.

2      Commission Decision of 24 February 2020 on the State aid SA.31662 - C/2011 (ex NN/2011) implemented by Romania for Timișoara International Airport - Wizz Air (OJ 2021 L 308, p. 1).

3      See point 6 of this Opinion.

4      I note in that regard that, depending on the situation, reference is made, inter alia, to the ‘private operator’, the ‘private investor’ or even the ‘private creditor’ principle. The use of those terms seems to me, however, to depend on the nature of the measure envisaged and they are merely variants of the same principle. I shall therefore refer, in this Opinion, to the ‘market economy operator principle’, a phrase which covers those various concepts.

5      Judgment of 10 December 2020, Comune di Milano v Commission (C-160/19 P, EU:C:2020:1012, paragraph 103).

6      Judgment of 6 March 2018, Commission v FIH Holding and FIH Erhvervsbank (C-579/16 P, EU:C:2018:159, paragraph 46).

7      Judgment of 5 June 2012, Commission v EDF (C-124/10 P, EU:C:2012:318, paragraph 81).

8      Judgment of 5 June 2012, Commission v EDF (C-124/10 P, EU:C:2012:318, paragraph 83).

9      Judgment of 5 June 2012, Commission v EDF (C-124/10 P, EU:C:2012:318, paragraph 86).

10      Judgment of 5 June 2012, Commission v EDF (C-124/10 P, EU:C:2012:318, paragraph 84).

11      Judgment of 5 June 2012, Commission v EDF (C-124/10 P, EU:C:2012:318, paragraph 85).

12      See, inter alia, judgment of 10 December 2020, Comune di Milano v Commission (C-160/19 P, EU:C:2020:1012, paragraph 108).

13      Judgment of 26 March 2020, Larko v Commission (C-244/18 P, EU:C:2020:238, paragraph 63).

14      Judgment of 10 December 2020, Comune di Milano v Commission (C-160/19 P, EU:C:2020:1012, paragraph 105).

15      Judgment of 10 December 2020, Comune di Milano v Commission (C-160/19 P, EU:C:2020:1012, paragraph 105).

16      Judgment of 10 December 2020, Comune di Milano v Commission (C-160/19 P, EU:C:2020:1012, paragraph 110).

17      Judgment of 10 December 2020, Comune di Milano v Commission (C-160/19 P, EU:C:2020:1012, paragraph 111).

18      Judgment of 26 March 2020, Larko v Commission (C-244/18 P, EU:C:2020:238, paragraph 29).

19      Judgment of 26 March 2020, Larko v Commission (C-244/18 P, EU:C:2020:238, paragraph 30).

20      Judgment of 5 June 2012, Commission v EDF (C-124/10 P, EU:C:2012:318, paragraph 79).

21      Judgment of 16 May 2002, France v Commission (C-482/99, EU:C:2002:294, paragraph 71).

22      Judgment of 26 March 2020, Larko v Commission (C-244/18 P, EU:C:2020:238, paragraphs 31 and 32).

23      Judgment of 10 December 2020, Comune di Milano v Commission (C-160/19 P, EU:C:2020:1012, paragraph 124).

24      Judgment of 26 March 2020, Larko v Commission (C-244/18 P, EU:C:2020:238, paragraph 32).

25      Judgment of 10 December 2020, Comune di Milano v Commission (C-160/19 P, EU:C:2020:1012, paragraph 117).

26      Judgment of 26 March 2020, Larko v Commission (C-244/18 P, EU:C:2020:238, paragraph 62).

27      See point 27 of this Opinion.

28      Judgment of 5 June 2012, Commission v EDF (C-124/10 P, EU:C:2012:318, paragraph 77).

29      Judgment of 10 December 2020, Comune di Milano v Commission (C-160/19 P, EU:C:2020:1012, paragraph 124).

30      See point 54 of this Opinion.

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