ECLI:EU:T:2026:346

1

By its action under Article 263 TFEU, the applicant, Carpatair SA, seeks annulment of Commission Decision (EU) 2021/1428 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; ‘the contested decision’), in so far as it concludes that certain measures do not constitute State aid within the meaning of Article 107(1) TFEU.

2	The applicant is a Romanian regional airline. In 2000, it set up its hub at Timișoara International Airport (Romania) (‘the airport’), from which it operated a hub-and-spoke network.

3	The airport is operated by the second intervener, Societatea Națională ‘Aeroportul Internațional Timișoara – Traian Vuia’ SA (AITTV), a company in which the Romanian State holds 80% of the capital.

4

In preparation for the increase in traffic that was expected to result from Romania’s accession to the European Union in 2007, and in order to meet the security requirements for acceding to the Schengen area, AITTV received financing from the Romanian State for the construction of a terminal for non-Schengen flights and for security equipment.

5

In 2008, as part of a strategy intended to attract low-cost airlines and increase the overall profitability of the abovementioned airport, AITTV signed agreements with the first intervener, Wizz Air Hungary Légiközlekedési Zrt. (Wizz Air Hungary Zrt.) (‘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 discount 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 the airport in October 2008.

6	On 30 September 2010, the applicant submitted a complaint to the European Commission regarding alleged unlawful State aid provided by the Romanian authorities in favour of Wizz Air.

7

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

8

As from 2014, the applicant ceased its operations at the airport and underwent a judicial reorganisation procedure. Its main base of operations is now located at Arad Airport (Romania), which is 50 kilometres (km) from the airport and from which it offers, inter alia, charter flights. It no longer offers scheduled flights.

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

10

In the contested decision, the Commission examined whether there was State aid within the meaning of Article 107(1) TFEU as regards, inter alia, the airport charges published in the 2007, 2008 and 2010 AIPs (recitals 40 to 49 and 267 to 299 of the contested decision), the 2008 agreements and the 2010 amendment agreements (together, ‘the 2008 and 2010 agreements’) (recitals 50 to 76 and 300 to 440 of the contested decision).

11	Moreover, having found that some of the financing granted to AITTV constituted State aid, the Commission examined whether that financing was compatible with the internal market (recitals 236 to 266 of the contested decision).

12

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

13

As regards the 2008 and 2010 agreements, the Commission stated, having regard to economic evaluations drawn up after the conclusion of those agreements, that they were expected to be incrementally profitable for AITTV. 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 the airport. The Commission therefore concluded that they had not conferred an economic advantage on Wizz Air which that company would not have obtained under normal market conditions.

14	Accordingly, the Commission concluded, in Article 2 of the contested decision, that, inter alia, the airport charges in the 2007, 2008 and 2010 AIPs and the 2008 and 2010 agreements did not constitute State aid within the meaning of Article 107(1) TFEU.

15

By application lodged at the Registry of the General Court on 11 August 2020, the applicant brought an action for the annulment of the contested decision, in so far as it did not conclude that the 2010 AIP and the 2008 and 2010 agreements (together, ‘the measures at issue’) constituted State aid granted to Wizz Air which was unlawful and incompatible with the internal market.

16

By judgment of 8 February 2023, Carpatair v Commission (T‑522/20, ‘the initial judgment’, EU:T:2023:51), the Court held, in the first place, that the action was to be regarded as admissible, since the applicant had demonstrated that it had both an interest in bringing proceedings and standing to bring an action for annulment of the contested decision.

17

In the second place, after upholding the first plea and, in part, the second plea raised by the applicant in support of its action, the Court annulled Article 2 of the contested decision in so far as it concluded that the airport charges in the 2010 AIP and the 2008 and 2010 agreements did not constitute State aid.

18	By their respective appeals, the Commission (Case C‑244/23 P), Wizz Air (Case C‑245/23 P) and AITTV (Case C‑246/23 P) sought to have the initial judgment set aside.

19

By judgment of 13 February 2025, Commission and Others v Carpatair (C‑244/23 P to C‑246/23 P, the judgment on appeal, EU:C:2025:87), the Court of Justice set aside the initial judgment in its entirety on grounds relating to the demonstration of the applicant’s standing to bring an action for annulment of the contested decision.

20

Taking the view that the state of the proceedings did not permit final judgment to be given, since the examination of the admissibility of the action at first instance and, if necessary, of the merits of that action involves assessments of fact which would require the adoption of additional measures of organisation of the procedure or investigation of the case, the Court of Justice referred the case back to the General Court and reserved the costs.

21	By documents lodged on 9, 22 and 23 April 2025 respectively, the applicant, AITTV, the Commission and Wizz Air lodged observations regarding the further course of the proceedings, in accordance with Article 193(1) of the Rules of Procedure of the General Court.

22

The applicant claims, in essence, that the Court should:

–	annul Article 2 of the contested decision in so far as it concludes that the 2010 AIP and the 2008 and 2010 agreements do not constitute State aid;

–	order the Commission to bear its own costs and the costs incurred by the applicant in responding to the observations submitted by the Commission before the General Court, both at first instance and in the present referral proceedings, and in the appeal before the Court of Justice;

–	order Wizz Air and AITTV to bear their own costs and the costs incurred by the applicant in responding to the observations submitted by the interveners before the General Court, both at first instance and in the present referral proceedings, and in the appeal before the Court of Justice.

23

The Commission contends that the Court should:

–	dismiss the action as inadmissible or, in the alternative, as unfounded;

–	order the applicant to pay the costs of the present proceedings, including the costs in the case which gave rise to the initial judgment and those in the cases which gave rise to the judgment on appeal.

24

Wizz Air contends that the Court should:

–	dismiss the action;

–	order the applicant to bear its own costs and to pay the costs incurred by Wizz Air before the General Court at first instance and upon referral and in the proceedings before the Court of Justice.

25

AITTV contends, in essence, that the Court should:

–	dismiss the action as inadmissible;

–	reinstate the contested decision in full;

–	order the applicant to pay the costs incurred by AITTV in respect of all proceedings before the General Court and the Court of Justice.

26

As an annex to its observations regarding AITTV’s statement in intervention, the applicant provided excerpts from the judicial administrator’s report entitled ‘Report on the Causes that determined the Insolvency of Carpatair’, in order to demonstrate the adverse effect on its competitive position due to Wizz Air’s activities.

27	The Commission, Wizz Air and AITTV contend that the excerpts from that report are inadmissible. In particular, the Commission and Wizz Air maintain that that report was submitted late.

28

It should be borne in mind that, according to Article 85(1) of the Rules of Procedure, evidence produced or offered is to be submitted in the first exchange of pleadings. In the present case, although the judicial administrator’s report was referred to in the application, the applicant merely claimed that the annex in question should be declared admissible on the ground that those excerpts demonstrate the adverse effect of Wizz Air’s unfair competition on its competitive position. It did not therefore provide any valid explanation as to why the excerpts from that report had been submitted late, in reply to AITTV’s statement in intervention.

29	Accordingly, the excerpts from the judicial administrator’s report must be held to be inadmissible.

30

The Commission, supported by AITTV, questions whether the applicant has an interest in obtaining the annulment of the contested decision. In that regard, it contends, inter alia, that a favourable outcome in the present action for annulment would have no direct impact on the appeal brought by the applicant against the decision of the Curtea de Apel București (Court of Appeal, Bucharest, Romania) in the context of an action for damages before the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice, Romania). Similarly, it maintains that the present action would have no impact on the outcome of the action for recovery of the aid granted to Wizz Air through the 2010 AIP, which is pending before the Curtea de Apel Alba Iulia (Court of Appeal, Alba Iulia, Romania).

31	The applicant disputes the Commission’s arguments.

32

In accordance with settled case-law of the Court of Justice, an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in having the contested act annulled. Such an interest requires that the annulment of that act must be capable, in itself, of having legal consequences and that the action may therefore, through its outcome, procure an advantage to the party which brought it (see judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 55 and the case-law cited).

33

Furthermore, an applicant’s interest in bringing proceedings must, in the light of the purpose of the action, exist when the action is lodged, failing which the action will be inadmissible. That purpose must, like the interest in bringing proceedings, continue to exist until the final decision, failing which there will be no need to adjudicate (see judgment of 21 December 2016, Commission v Hansestadt Lübeck, C‑524/14 P, EU:C:2016:971, paragraph 26 and the case-law cited).

34

In the present case, in response to the questions put by the General Court in the context of a measure of organisation of procedure, the applicant stated, at the hearing on 4 December 2025, that, although the proceedings relating to the action for damages were closed, the proceedings relating to the recovery of the aid at issue were still stayed pending final judgment in the present case. It cannot be ruled out that the potential annulment of the contested decision may, in the light of the purpose of that decision, affect the outcome of the action relating to the recovery of the aid at issue.

35

Therefore, in the circumstances of the present case, the potential annulment of the contested decision may procure an advantage to the applicant in the context of its action before the national court. Accordingly, the applicant has established that it has an interest in bringing proceedings (see, by analogy, judgment of 7 November 2018, BPC Lux 2 and Others v Commission, C‑544/17 P, EU:C:2018:880, paragraph 56 and the case-law cited).

36

Furthermore, as regards the second complaint submitted by the applicant on 13 September 2011 and registered under number SA.33598, the applicant maintains that the Commission informed it, on 1 July 2020, of its intention not to initiate a formal investigation procedure in that second case, on the ground that the measures at issue were similar to those examined in the contested decision.

37	At the hearing, the applicant stated that the Commission’s preliminary examination of that second complaint was still ongoing, which was confirmed by that institution.

38	Accordingly, the potential annulment of the contested decision may result in the initiation of the formal investigation procedure in that second case, during which the applicant would, in principle, have the opportunity to exercise its procedural rights by submitting comments.

39	Therefore, the applicant has demonstrated to the requisite legal standard that the potential annulment of the contested decision was capable of procuring an advantage to it. It therefore has an interest in bringing an action for annulment against that decision.

40

It should be recalled, as a preliminary point, that the admissibility of an action brought by a natural or legal person against an act which is not addressed to that person, in accordance with the fourth paragraph of Article 263 TFEU, is subject to the condition that that person be accorded standing to bring proceedings, which arises in two situations. First, such proceedings may be instituted if the act is of direct and individual concern to that person. Second, such persons may bring proceedings against a regulatory act not entailing implementing measures if that act is of direct concern to them (see, to that effect, judgments of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraphs 59 and 91, and of 15 July 2021, Deutsche Lufthansa v Commission, C‑453/19 P, EU:C:2021:608, paragraph 31).

41

It must be noted that it is not disputed that the contested decision constitutes, first, an individual act, in so far as it is found in that decision that the 2008 and 2010 agreements are not State aid, and, second, a regulatory act not entailing implementing measures, within the meaning of the third limb of the fourth paragraph of Article 263 TFEU, in so far as it is found in that decision that the system of airport charges established by the 2010 AIP is not State aid. Consequently, in order to establish its standing to bring proceedings, the applicant must demonstrate that it is directly and individually concerned by the part of the contested decision relating to the 2008 and 2010 agreements. By contrast, it is sufficient for the applicant to demonstrate that it is directly concerned by the part of that decision relating to the 2010 AIP (judgment on appeal, paragraph 59).

42

The Commission, supported by Wizz Air and AITTV, contends that the applicant does not have standing to bring proceedings against the measures at issue. It maintains, in essence, that the applicant is not individually concerned by the 2008 and 2010 agreements, since, first, it has not demonstrated that it was in a direct competitive relationship with Wizz Air and, second, in any event, the applicant has not sufficiently demonstrated that the reduction in its yields was due to competition from Wizz Air and it was only one of Wizz Air’s many competitors at the airport.

43	Moreover, the Commission, supported by Wizz Air and AITTV, contends that the applicant has not demonstrated that it is directly concerned.

44	In the first place, the applicant submits that it is individually concerned by the 2008 and 2010 agreements, since its position on the market was substantially affected by the aid which Wizz Air received from AITTV as a result of those agreements.

45

In essence, the applicant claims, first, that it was in direct competition with Wizz Air on five routes and in indirect competition with that airline on five additional routes. The subsidies received by Wizz Air in respect of the routes on which the applicant was in direct or indirect competition with that airline led to the elimination, in value terms, of over 70% of the applicant’s traffic to and from the airport. Thus, it argues, the subsidised competition from Wizz Air was the cause of the decline in its commercial and financial performance, such as a decrease in turnover and financial losses.

46	Second, the applicant maintains that it had a particular status since no other airline at the airport was subject, to the same extent, to the distortion of competition resulting from the State aid granted to Wizz Air.

47	In the second place, the applicant submits that it is directly concerned by the 2008 and 2010 agreements and by the 2010 AIP.

48	In the present case, it is appropriate to begin by examining the condition relating to whether the applicant is individually concerned as regards the 2008 and 2010 agreements.

49	It must be pointed out that the applicant is not the beneficiary of the measures resulting from the 2008 and 2010 agreements.

50

Where an applicant calls into question the merits of a decision appraising the aid taken on the basis of Article 108(3) TFEU or after the formal investigation procedure, it must show that that decision affects it by reason of certain attributes which are peculiar to it or by reason of circumstances in which it is differentiated from all other persons and, by virtue of those factors, distinguishes it individually just as in the case of the person addressed by such a decision. That applies in particular where the applicant’s position on the market concerned is substantially affected by the aid to which the decision at issue relates (see judgment on appeal, paragraph 61 and the case-law cited).

51

It must be borne in mind that the demonstration by the applicant of a substantial adverse effect on its position on the market concerned does not entail a definitive ruling on the competitive relationship between that applicant and the undertakings benefiting from the measure at issue, but requires only that the applicant adduce pertinent reasons to show that the Commission’s decision may harm its legitimate interests by substantially adversely affecting its position on that market. The substantial adverse effect on the applicant’s competitive position on that market results not from a detailed analysis of the various competitive relationships on that market, allowing the extent of the adverse effect on its competitive position to be established specifically, but, in principle, from a prima facie finding that the grant of the measure covered by the Commission’s decision leads to a substantial adverse effect on that position (see judgment on appeal, paragraph 63 and the case-law cited).

52

On the other hand, the mere fact that the measure which the applicant seeks to have annulled may exercise an influence on the competitive relationships existing in the market concerned and that it is in a competitive relationship with the beneficiary of that measure cannot suffice for it to be regarded as being individually concerned by that measure. In other words, an undertaking cannot simply rely on its status as a competitor of the undertaking benefiting from the measure which it seeks to have annulled (see judgment of 20 January 2022, Deutsche Lufthansa v Commission, C‑594/19 P, EU:C:2022:40, paragraph 78 and the case-law cited).

53

In addition, demonstrating a substantial adverse effect on a competitor’s position on the market cannot simply be a matter of the existence of certain factors indicating a decline in the applicant’s commercial or financial performance, such as a significant decline in turnover, appreciable financial losses or a significant reduction in market share following the grant of the aid in question. The grant of State aid can also have an adverse effect on the competitive situation of an operator in other ways, in particular by causing the loss of an opportunity to make a profit or a less favourable development than would have been the case without such aid (see judgment of 20 January 2022, Deutsche Lufthansa v Commission, C‑594/19 P, EU:C:2022:40, paragraph 79 and the case-law cited).

54

Lastly, it is apparent from the case-law that it is not necessary to provide information relating to the size, structure and competitors present in order to define the market or markets in the light of which the condition relating to a substantial adverse effect on the competitive position should be assessed (see, to that effect, judgment of 15 July 2021, Deutsche Lufthansa v Commission, C‑453/19 P, EU:C:2021:608, paragraphs 64 and 65).

55

In the present case, it must be noted that, as is apparent from paragraph 8 above, as from 2014 the applicant no longer operated at the airport and underwent judicial reorganisation. In those circumstances, the applicant cannot rely on potential future competition in order to demonstrate that it is individually concerned, but must, for that purpose, show that there was effective competition with Wizz Air at the time when the 2008 and 2010 agreements produced their effects.

56	In that regard, the applicant submits, in essence, that it satisfies the condition relating to individual concern, in so far as it was in direct and indirect competition with Wizz Air on 10 routes from the airport and had a particular status.

57

However, the applicant cannot rely on the fact that it actively participated in the administrative procedure before the Commission in order to demonstrate that it is individually concerned. Indeed, it cannot be inferred from the mere participation of the applicant in the administrative procedure that it is individually concerned by the contested decision (see, to that effect, judgment of 22 November 2007, Sniace v Commission, C‑260/05 P, EU:C:2007:700, paragraph 60, and order of 26 September 2016, Greenpeace Energy and Others v Commission, T‑382/15, not published, EU:T:2016:589, paragraph 39), even where, as in the present case, it has played an important part in that administrative procedure, inter alia by lodging the complaint which led to the contested decision.

58

The applicant submits that it was in direct competition with Wizz Air on five routes from the airport, on the ground that those routes served the same airports or airports situated less than 100 km apart, namely, as regards Germany, the route serving Düsseldorf (the applicant serving Düsseldorf and Wizz Air serving Dortmund, situated 70 km apart by road), and, as regards Italy, the routes serving Venice (the applicant serving Venice and Wizz Air serving Treviso, situated 41 km apart by road), Bergamo-Milan, Bologna (the applicant serving Bologna and Wizz Air serving Forli, situated 73 km apart by road) and Rome.

59

On that question, the Court of Justice held that, by finding that Wizz Air and the applicant were competitors on five routes from the airport, on the ground that those routes served the same airports or airports located less than 100 km apart, without setting out the reasons why it had not upheld AITTV’s arguments challenging the existence of such competition, on account, inter alia, of the differences between the business models of those two airlines and the different technical characteristics of their fleets, the General Court had failed to fulfil its obligation to state reasons (judgment on appeal, paragraphs 66 and 70).

60	As regards, first, AITTV’s argument that the applicant and Wizz Air operated according to different business models, it is common ground between the parties that the applicant had opted for the hub-and-spoke network model, whereas Wizz Air had favoured the ‘point-to-point’ network model.

61

In that regard, it must be stated that the hub-and-spoke network is a flight configuration which makes it possible to offer passengers a connection between a main airport, such as an international airport, and secondary airports, such as regional airports. As for the ‘point-to-point’ network model, it is configured in such a way that the different destinations are directly connected to each other.

62

It is apparent from the case-law that, for the purposes of examining admissibility, it is sufficient to find that the applicant was a competitor of the beneficiary of the State aid measures complained of, in so far as those two undertakings directly or indirectly operated regular passenger air transport services to and from airports which are situated in close proximity (see, to that effect, judgment of 28 March 2012, Ryanair v Commission, T‑123/09, EU:T:2012:164, paragraph 72 and the case-law cited).

63

Moreover, the Court has previously held that the existence of competition cannot be ruled out between airlines that have a hub-and-spoke business model and those that operate according to the point-to-point model (see, to that effect, judgment of 18 October 2023, Wizz Air Hungary v Commission (TAROM; COVID-19), T‑332/21, not published, EU:T:2023:645, paragraph 156).

64

In the present case, in so far as the applicant and Wizz Air operated routes serving the same airports or airports situated less than 100 km apart, potential customers could choose between the services offered by each of them. Furthermore, competition does not mean offering identical goods or services, but rather means meeting equivalent needs, that is to say, in the present case, enabling customers to reach a specific destination.

65	Accordingly, the fact that the applicant and Wizz Air operated different business models does not preclude the existence of competition between them.

66

Second, the argument, made by AITTV, that the aircraft fleets of Wizz Air and the applicant had different technical characteristics, which enabled Wizz Air to achieve economies of scale, is irrelevant for the purpose of determining whether those two airlines were in competition, since those differences do not affect the possibility for passengers to choose between those two carriers. Similarly, the fact that the applicant carried out other costly ancillary activities has no bearing on the fact that, as regards services relating to air passenger transport, those two airlines were in competition.

67

Third, the fact, relied on by AITTV, that, as at the dates on which the contested decision was adopted and the present action lodged, the applicant had long since changed its business model, and the fact that the two airlines now operate from different airports and in different ways, are irrelevant. As stated, in essence, in paragraph 55 above, in order to demonstrate that it is individually concerned, the applicant must show that there was effective competition with Wizz Air at the time when the 2008 and 2010 agreements produced their effects and not as at the date on which the contested decision was adopted or the present action lodged.

68	In those circumstances, AITTV’s arguments must be rejected in their entirety, without there being any need to examine their admissibility, which the applicant has called into question.

69

Furthermore, in its observations regarding the judgment on appeal, the Commission contends that the applicant and Wizz Air were in competition on only two routes, namely those serving Bergamo-Milan and Rome. As regards the other routes, it maintains that the applicant should have adduced other evidence to show that the airports were substitutable, since the mere fact that they were situated less than 100 km from each other was not sufficient in that respect.

70

The Commission points out, in that regard, that, in its Decision C(2019) 4990 final of 5 July 2019 on State Aid SA.46373 (2019/NN) – Germany – Operating Aid to Dortmund airport (OJ 2020 C 43, p. 1), it considered that it could be argued that Düsseldorf and Dortmund airports were not, strictly speaking, in the same catchment area.

71

However, the assertion made by the Commission in the decision cited in paragraph 70 above was not couched in categorical terms, with the result that it cannot be inferred therefrom that the Commission actually established that those two airports were not part of the same catchment area. Moreover, it must be observed that, at the time when the opening decision was adopted, the Commission considered that the applicant and Wizz Air were in competition on the routes serving Düsseldorf, Venice, Bergamo-Milan, Bologna and Rome and had thus defined the relevant market as the pair of cities in air transport. In so doing, it implicitly but necessarily regarded airports in close geographical proximity to each other, such as Düsseldorf and Dortmund, Bologna and Forli, or Venice and Treviso, as substitutable, in accordance with its decision-making practice in competition matters. Lastly, the Court has previously held that the geographical proximity of airports situated 115 km from each other and the fact that the first airport is, accordingly, in the second one’s catchment area may demonstrate that there is a competitive relationship between those two airports (see, to that effect, judgment of 12 April 2019, Deutsche Lufthansa v Commission, T‑492/15, EU:T:2019:252, paragraph 159).

72

Thus, the applicant was correct in relying on the fact that the airports of Dortmund and Düsseldorf, those of Bologna and Forli and those of Venice and Treviso were situated less than 100 km from one another for the purpose of regarding them as substitutable and, therefore, for the purpose of considering itself to be in competition with Wizz Air on the routes serving those airports.

73

Accordingly, it must be held that Wizz Air and the applicant were in direct competition on five routes serving the same airports or airports situated less than 100 km apart, namely, as regards Germany, the route serving Düsseldorf and, as regards Italy, the routes serving Venice, Bergamo-Milan, Bologna and Rome.

74

The applicant submits that it was in indirect competition with Wizz Air on five additional routes, defined by a 200 km catchment area. It maintains that, by serving Dortmund, Venice, Bergamo-Milan and Forli, Wizz Air was also in competition on the routes which it operated, for its part, to Frankfurt (Germany) (situated 222 km from Dortmund by road), Verona (Italy) (situated 121 km from Venice by road), Turin (Italy) (situated 185 km from Bergamo-Milan by road), Florence (Italy) (situated 109 km from Forli by road), and Ancona (Italy) (situated 166 km from Forli by road).

75

In that respect, it should be noted that, in its observations regarding the judgment on appeal, the applicant refers to the principles established by the Court in the judgment of 12 April 2019, Deutsche Lufthansa v Commission (T‑492/15, EU:T:2019:252, paragraph 159), as recalled in paragraph 71 above. It also states that it is apparent from decisions adopted by the Commission that airports situated within a drive of 1 hour or even 1 hour and 30 minutes could be regarded as nearby airports.

76

However, it must be stated that the airports referred to by the applicant and listed in paragraph 74 above are all situated more than 115 km or a drive of 1 hour and 30 minutes apart. In particular, with respect to Forli and Florence, although those cities are situated less than 115 km apart, a drive of more than 1 hour and 30 minutes is required in order to travel between them.

77	As regards the applicant’s argument that, since the financial crisis, passengers have been prepared to travel up to 200 km in order to take advantage of cheaper air fares, this is not supported by any specific evidence.

78

Lastly, the applicant itself served simultaneously Turin and Bergamo-Milan, Bergamo-Milan and Verona, Verona and Venice, and Bologna and Florence, that is to say, pairs of cities situated within the same 200 km catchment area, even though it submits that those destinations were substitutable. That fact is liable to call into question the relevance of the alleged ‘indirect competition’ between the applicant and Wizz Air in respect of those pairs of cities.

79	Accordingly, the applicant has not established, to the requisite legal standard, that it was in indirect competition with Wizz Air on the five additional routes referred to in paragraph 74 above.

80

The applicant submits that it had a particular status as compared with the other airlines operating at the airport, in so far as, first, it was the only airline operating at the airport to have been subjected to such intense competition from Wizz Air; second, the activity of the airport was centred on the applicant’s operations; and, third, its competitive position was affected by the competition from Wizz Air which benefited from the 2008 and 2010 agreements, which is demonstrated by a reduction in its yields and by the loss of an opportunity to make a profit resulting from the fact that it was impossible for it to take over two routes from the airport to the north of Italy.

81	The Commission contends that, during the proceedings which gave rise to the initial judgment, the applicant did not rely on an alleged loss of an opportunity to make a profit in order to demonstrate that its competitive position was affected and, therefore, cannot do so in the present proceedings.

82

In the first place, it must be observed that, on the five routes on which the applicant and Wizz Air were in direct competition, Blue Air also operated the route serving Rome, with the result that that company also faced competition from Wizz Air. Although, according to the applicant, Blue Air did not offer scheduled flights, the fact remains that it offered transport services between those two cities to the public, and therefore they may be regarded as having been in competition, contrary to what the applicant claims.

83	In addition, Malév also faced direct competition from Wizz Air on the route serving Budapest (Hungary).

84	Lastly, it was only on 5 of the 32 destinations served by the applicant from the airport that the applicant faced competition from Wizz Air.

85

It follows that the applicant was not the only airline operating at the airport and in direct competition with Wizz Air. Moreover, it has not demonstrated that the routes on which it was in direct competition with Wizz Air were economically more significant than those which Wizz Air shared with the airlines referred to in paragraphs 82 and 83 above. In those circumstances, the mere fact that the applicant faced such competition on a greater number of routes than those airlines does not constitute a difference sufficient to establish that it had a particular status.

86

In the second place, the activity of the airport was focused on the applicant’s operations (recital 352 of the contested decision). That finding, together with the fact that Romania stated that ‘the business model of [the applicant], namely the hub and spoke model, led to a situation where, during the peak times of [the applicant’s] passenger arrivals, the airport capacities were almost completely exhausted. On the other hand, during the off-peak time, the capacity was under-used’ (recital 95 of the contested decision), supports the reasonable conclusion that the applicant was, in 2008, the principal operator in terms of traffic at the airport.

87

Furthermore, the assertion that, during that year, the applicant generated 38% of AITTV’s revenues is admittedly not supported by evidence and is mentioned only in recital 112 of the contested decision, which forms part of the comments submitted by the applicant. Nevertheless, that point has not been disputed by the Commission or the interveners. In the light of the findings made in paragraph 86 above, such a figure appears realistic.

88

As regards the claim that the core of the applicant’s business between 2000 and 2013, which represented over 90% of its turnover, corresponded to its ‘hub-and-spoke’ operations at the airport, while that claim is not supported by evidence, it has also not been disputed by the Commission or the interveners.

89

It is true that it follows from all of the foregoing that the activity of the airport was centred on the applicant’s operations and that the applicant derived 90% of its turnover from its operations at that airport. However, as the Court of Justice found in paragraph 89 of the judgment on appeal, such evidence was not sufficient in order to recognise that the applicant had a particular status.

90	In the third place, it is therefore necessary to ascertain whether the applicant has demonstrated that its competitive position had been substantially affected by the competition from Wizz Air, which benefited from the 2008 and 2010 agreements.

91

First, as regards the applicant’s alleged loss of an opportunity to make a profit, the Court of Justice held, in essence, that, since that alleged loss had been referred to only in Annex A.8 to the application, to which that application made only a general reference, the General Court had erred in law in relying, in paragraph 77 of the initial judgment, on the existence of such a loss resulting from the fact that it was impossible for the applicant to take over two routes from the airport to the north of Italy operated by Alitalia and Alpi Eagles (judgment on appeal, paragraphs 75, 77 and 78).

92

It follows from the case-law that the Court cannot be required to reconstruct the applicant’s pleas and arguments by bringing together diffuse elements contained in its pleadings, lest it add to, distort or truncate those pleas and arguments (judgment of 30 April 2025, Deutsche Lufthansa v Commission, T‑218/18 RENV, not published, EU:T:2025:431, paragraph 40).

93	Similarly, it is not for the Courts of the European Union to speculate about the reasoning and precise observations, both in fact and law, that lie behind the action (judgment of 30 April 2025, Deutsche Lufthansa v Commission, T‑218/18 RENV, not published, EU:T:2025:431, paragraph 41).

94

In the present case, as the Court of Justice observed in paragraph 75 of the judgment on appeal, the applicant did not expressly put forward, in the application, an argument specifically seeking to rely on the existence of a loss of an opportunity to make a profit resulting from the fact that it was impossible for it to take over two routes from the airport to the north of Italy, a point which, besides, the applicant confirmed in its observations regarding the judgment on appeal.

95

It is true that, in its response to the measure of organisation of procedure of 11 March 2022, the applicant did in fact refer to a loss of an opportunity to make a profit. However, in that response, it merely makes a general and unsubstantiated assertion and, moreover, does not refer to the companies Alitalia and Alpi Eagles.

96	It must therefore be held that, during the proceedings which gave rise to the initial judgment, the applicant did not validly rely on a loss of an opportunity to make a profit in order to demonstrate that its competitive position was substantially affected.

97

In those circumstances, in accordance with the case-law according to which, following the referral judgment of the Court of Justice, the parties are not entitled, in principle, to rely on pleas which were not raised in the procedure which gave rise to the judgment of the General Court set aside by the Court of Justice (see judgment of 24 October 2024, Commission v Intel Corporation, C‑240/22 P, EU:C:2024:915, paragraph 101 and the case-law cited), the applicant is not entitled to rely, for the first time in the present proceedings, on a loss of an opportunity to make a profit.

98

Second, as regards the alleged reduction in the applicant’s yields, the Court of Justice held that the General Court’s finding that, between 2008 and 2010, the applicant’s net yield on the five routes from the airport had decreased by 52% as regards four routes to Italy, and by 57% as regards the route to Düsseldorf, stemmed from a distortion of Annex A.7 to the application. Those percentages did not reflect the decrease in yield on those routes, but were equivalent to the ratio represented by the yields on those routes for 2010 compared with the yields on the same routes for 2008, as the applicant indeed acknowledged in its response (judgment on appeal, paragraphs 79 and 80).

99

The Court of Justice added that it was apparent from Annex A.7 to the application that, during that period, the yield on certain routes operated by the applicant, on which – as the General Court held – it had not been in competition with Wizz Air, had decreased as much as, if not more than, the yield on the routes on which, according to the General Court, the applicant had been in direct competition with Wizz Air (judgment on appeal, paragraph 81).

100

Lastly, in the light of such an overall reduction in yield on the routes operated by the applicant from the airport, the Court of Justice criticised the General Court for merely stating, in paragraph 80 of the initial judgment, that the evidence submitted by that airline in order to establish that the 2008 and 2010 agreements were able to have a substantial effect on its competitive position on the markets concerned was not called into question by the arguments seeking to demonstrate that that reduction might have been caused by other factors, such as the allegedly outdated business model of that airline, the latter’s competition with airlines other than Wizz Air or the global financial crisis, without taking those arguments into consideration and, in any event, without explaining why those arguments had to be rejected (judgment on appeal, paragraph 83).

101	It must be noted that Annex A.7 to the application contains three tables relating to the applicant’s net yields, of which the first concerns routes to Italy, the second concerns routes to Germany and the third sets out all the applicant’s net yields relating to those two States.

102

As regards, first of all, the routes to Italy, the table is divided into three sections. The first section contains the routes from the airport to a number of Italian cities on which competition between the applicant and Wizz Air was direct, namely Venice, Bergamo-Milan, Bologna and Rome. It is apparent from that table that, in 2008, the applicant’s net yield was EUR 6283004, whereas the net yield for 2010 was EUR 3284168. Therefore, the decrease in net yield, amounting to EUR 2998836, represented a reduction of approximately 47.7%.

103

The second section compiles the routes from the airport to other Italian cities on which competition between the applicant and Wizz Air was, according to the applicant, indirect, namely Verona, Turin, Florence and Ancona. The table indicates that, in 2008, the applicant’s net yield was EUR 5491547, whereas the net yield for 2010 was EUR 2860455. Therefore, the decrease in net yield, amounting to EUR 2631092, represented a reduction of approximately 47.9%. In other words, the reduction was equal to, if not slightly higher than, that concerning the routes on which competition between the applicant and Wizz Air was direct.

104

The third section concerns a route from the airport to an Italian city on which there was no competition between the applicant and Wizz Air, namely Bari. It is apparent from the table that, in 2008, the applicant’s net yield was EUR 942446, whereas the net yield for 2010 was EUR 700735. Therefore, the decrease in net yield, amounting to EUR 241711, represented a reduction of approximately 25.6%.

105

As regards, next, the routes to Germany, the table is also divided into three sections. The first section concerns a route from the airport to Düsseldorf on which competition between the applicant and Wizz Air was direct. According to that table, in 2008, the applicant’s net yield was EUR 1999972. Its net yield decreased to EUR 945533 in 2009. Therefore, the decrease in net yield, amounting to EUR 1054439, represented a reduction of approximately 52%. However, there was an increase in 2010, since the yield was EUR 1141446. Therefore, the decrease in net yield between 2008 and 2010 amounted to EUR 858526, that is to say, a reduction of approximately 42.9%.

106

The second section concerns a route from the airport to Frankfurt, on which competition between the applicant and Wizz Air was, according to the applicant, indirect. Since flights to Frankfurt ceased in 2010, only data for 2008 and 2009 are available. The table shows that, in 2008, the applicant’s net yield was EUR 2526048, whereas the net yield was EUR 77863 in 2009. Therefore, the decrease in net yield, amounting to EUR 2448185, represented a reduction of approximately 96.9%. In other words, on that route, the reduction was much higher than those affecting the routes on which competition between the applicant and Wizz Air was direct.

107

The third section compiles the routes from the airport to German cities on which there was no competition between the applicant and Wizz Air. It is apparent from the table that, in 2008, the applicant’s net yield was EUR 4993157, whereas the net yield for 2010 was EUR 2110978. Therefore, the decrease in net yield, amounting to EUR 2882179, represented a reduction of approximately 57.7%. That reduction was therefore much higher than those affecting the routes on which competition between the applicant and Wizz Air was direct.

108

Lastly, as regards the summary table, it is also divided into three sections. The first section concerns the routes on which competition between the applicant and Wizz Air was direct. According to that table, the difference in the applicant’s net yields between 2008 (EUR 8282976) and 2010 (EUR 4425613), amounting to EUR 3857363, represented a reduction of approximately 46.5%. The second section compiles the routes on which competition between the applicant and Wizz Air was, according to the applicant, indirect. That table shows that the difference in the applicant’s net yields between 2008 (EUR 8017595) and 2010 (EUR 2860455) was EUR 5157140, that is to say, a reduction of approximately 64.3%. The third section compiles the routes on which there was no competition between the applicant and Wizz Air. It is apparent from that table that the difference in the applicant’s net yields between 2008 (EUR 6590638) and 2010 (EUR 3219578) corresponded to EUR 3371060, that is to say, a reduction of approximately 51.1%.

109

Furthermore, it should be borne in mind that, as has been established in paragraph 79 above, although the applicant claimed that it was in indirect competition with Wizz Air on the routes concerning, first, Verona, Turin, Florence and Ancona and, second, Frankfurt, it has not succeeded in demonstrating the existence of effective competition between itself and Wizz Air on those routes.

110

It follows from all those data that the applicant’s net yields decreased significantly during the period from 2008 to 2010 on all the routes it operated from the airport, with the exception of the route to Bari, which saw a less substantial decrease. In addition, as regards the routes on which the applicant and Wizz Air were not in competition, the reduction in the applicant’s net yields was, with the exception of the route to Bari, either slightly higher or much higher than the reductions observed on the routes on which those two airlines were in direct competition.

111

Since, with the exception of the route to Bari, the reduction in the applicant’s net yields on the routes on which it was not in competition with Wizz Air was greater than the reduction it experienced on the routes on which it was in competition with Wizz Air, the applicant has not established that the competition from Wizz Air, which benefited from the 2008 and 2010 agreements, had an impact on its yields.

112

Since it is apparent, in essence, from paragraph 100 above that the Court of Justice held that the General Court could not confine itself to finding that there had been a reduction in yield on the routes operated by the applicant from the airport and on which it was in direct competition with Wizz Air in order to conclude that there was a substantial effect on its competitive position, it is necessary to ascertain whether other factors may explain the reduction in the applicant’s yields, such as the applicant’s allegedly outdated business model, its competition with airlines other than Wizz Air or the global financial crisis.

113

First, as regards the hub-and-spoke business model used by the applicant at the time of the measures at issue, it is apparent from the applicant’s reorganisation plan, drawn up by its judicial administrator, that that model entailed the offer of scheduled flights which required a high number of personnel, a fleet composed of aircraft owned by the applicant and leased aircraft, and high operating costs for uncertain revenues. In addition, that plan highlighted a number of weaknesses in the applicant’s operations, such as the use of an older generation of engines which consumed more fuel than the latest generation, a fleet that was limited in comparison with international airlines, and a lack of funding to enable development.

114	Conversely, Wizz Air, which operated a ‘point-to-point’ business model, used a single type of large, modern aircraft that consumed less fuel, and offered only a single passenger class.

115

In that context, as AITTV correctly contends, the hub-and-spoke business model used by the applicant at the time of the relevant facts did not therefore enable it to achieve the same economies of scale as, for example, Wizz Air, which operated aircraft that were larger, newer and more efficient than the applicant’s aircraft.

116

Moreover, it must be noted that, following its judicial reorganisation, the applicant changed its business model in June 2013 and thereby ceased to offer its hub-and-spoke services at the airport. It now offers ad hoc charter flights, chains of charter flights and wet or dry lease services. This is evidence that the applicant’s business model was not sufficiently effective.

117	Thus, the applicant’s business model could also constitute one of the factors explaining the overall reduction in yield on the routes operated by the applicant from the airport.

118

Second, as regards competition with airlines other than Wizz Air, as recalled in paragraph 100 above, the Court of Justice criticised the General Court for failing to ascertain whether the overall reduction in yield on the routes operated by the applicant from the airport might not have been due to competition from airlines other than Wizz Air.

119	It is apparent from recital 9 of the opening decision that, between 2007 and 2009, 13 airlines, including the applicant, operated flights to or from the airport. In addition, the applicant stated in its application that, between 2007 and 2009, it served 32 domestic and European destinations.

120

In its observations regarding the judgment on appeal, the applicant disputed whether it faced significant competition from any airline other than Wizz Air on the routes on which it was in competition with Wizz Air. In particular, it denies having been in competition with Blue Air and Malév, and maintains that the competition with Lufthansa was only marginal.

121	In that regard, first of all, it must be observed that the applicant acknowledges that Blue Air also operated the Timișoara-Rome route, on which it was in competition with Wizz Air.

122	Next, the applicant acknowledges that it was in competition – albeit marginal – with Lufthansa on the route serving Munich (Germany).

123	Lastly, the applicant claims, without being contradicted by the Commission, Wizz Air or AITTV, that it was not in competition with Malév on the route serving Budapest, since it had concluded a code-sharing agreement with Malév.

124

It follows that, of the 32 domestic and European destinations which it served, the applicant has merely demonstrated that it was not in competition with only 1 of the other 12 airlines and in respect of only 1 of those destinations. In so far as the applicant has not produced any evidence either regarding its net yields on routes from the airport other than those previously analysed or regarding its potential competitors on those routes, it cannot be ruled out that the overall reduction in the net yields on the routes operated by the applicant from that airport was, in part, linked to competition with other airlines operating on routes not affected by competition with Wizz Air.

125	Third, although the applicant denies the impact of the financial crisis, it cannot be ruled out that that crisis may have had an effect on its financial situation.

126

Fourth, it must be noted that, as is apparent from Wizz Air’s statement in intervention, the applicant experienced three technical incidents on 22 April 2008, 28 February 2009 and 2 February 2013. Such incidents, two of which resulted in passengers being injured, may have undermined the confidence that customers had in the services provided by the applicant and therefore have an impact on its business.

127

It follows from all of the foregoing that, first, Wizz Air’s activity is not, by itself, capable of explaining the reduction in the applicant’s net yields, since that reduction was observed both on the routes on which they were in direct competition and on those on which they were not in competition, and was even more severe on the latter routes. Second, the applicant has not adduced any evidence to demonstrate a loss of an opportunity to make a profit or a less favourable development than would have been the case without the 2008 and 2010 agreements. Third and lastly, the applicant’s business model, competition from other airlines, the financial crisis and the technical incidents experienced by the applicant are also factors which may have had an impact on its yields.

128	Accordingly, the applicant has not sufficiently demonstrated that its competitive position was substantially affected by the competition from Wizz Air, which benefited from the 2008 and 2010 agreements.

129

In the light of the findings made in paragraphs 85, 89 and 128 above, it must be concluded that the condition that the applicant be individually concerned as regards the 2008 and 2010 agreements has not been satisfied, with the result that, since the conditions for according standing to bring proceedings are cumulative (see, to that effect, judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 76), the action must be dismissed as inadmissible, in so far as it seeks annulment of the contested decision to the extent that that decision relates to the 2008 and 2010 agreements, without it being necessary to examine whether that part of the contested decision is of direct concern to the applicant.

130

According to settled case-law, the condition that a natural or legal person must be directly concerned by the decision against which the action is brought, laid down in the fourth paragraph of Article 263 TFEU, requires two cumulative criteria to be met, namely, first, that the contested measure must directly affect the legal situation of the individual and, second, that it must leave no discretion to its addressees who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from the EU rules alone without the application of other intermediate rules (see judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 42 and the case-law cited).

131

As regards specifically the rules on State aid, it should be noted that their objective is to preserve competition. Thus, in that field, the fact that a Commission decision leaves intact all the effects of the national measures which the applicant, in a complaint addressed to that institution, claimed were not compatible with that objective and placed it in an unfavourable competitive position makes it possible to conclude that the decision directly affects its legal situation, in particular its right under the State-aid provisions of the FEU Treaty not to be subject to competition distorted by the national measures concerned (see judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 43 and the case-law cited).

132

Given that the condition of direct concern requires the contested measure to produce effects directly on the applicant’s legal situation, the Courts of the European Union must ascertain whether the applicant has adequately explained the reasons why the Commission’s decision is liable to place it in an unfavourable competitive position and thus to produce effects on its legal situation (judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 47).

133

As regards the first criterion, it must be noted that the applicant has claimed before the Court, with supporting documents, that it carried out activities similar to those of Wizz Air and was active on the same services market and on the same geographical market as Wizz Air. In addition, on account of the rules set out in the 2010 AIP and in particular those laid down in point 7.3 thereof, Wizz Air was subject to a lower contribution than that to which the applicant may have been subject.

134	It must be stated that the Court of Justice merely criticised the General Court for failing to address the arguments put forward by AITTV disputing that Wizz Air and the applicant were competitors (judgment on appeal, paragraphs 93 and 94).

135	Those arguments have already been addressed in the context of the examination relating to direct competition between Wizz Air and the applicant (see paragraphs 60 to 68 above).

136

However, Wizz Air contended, for the first time in its replies to the Court’s measures of organisation of 11 March 2022, that the 2010 AIP was not applicable to it, as it had entered into agreements with AITTV. That argument was repeated by the Commission at the hearing on 12 September 2022 and at the hearing on 4 December 2025, and was reiterated by Wizz Air both in its observations regarding the judgment on appeal and at the latter hearing.

137

At the hearing on 4 December 2025, the Commission and Wizz Air contended, in essence, that, although the 2010 operation agreement – that is to say, one of the two 2010 amendment agreements – granted Wizz Air the same discounts as those provided for in point 7.3 of the 2010 AIP, it was, however, that agreement, and not the AIP, that was legally applicable to it. In addition, they pointed out that the 2010 operation agreement was signed on 25 June 2010, that is to say, prior to the publication of the 2010 AIP on 26 August 2010, such that, both chronologically and legally, it was indeed the 2010 operation agreement that applied to Wizz Air and not the 2010 AIP.

138	That argument cannot succeed.

139

In that regard, first, it must be observed that, although the 2010 AIP was published after the signature of the 2010 operation agreement, the Commission noted, in recital 71 of the contested decision, that ‘on 25 June 2010, the operation agreement was amended by a new discount scheme, which … corresponds to the one set out in the 2010 AIP.’ It should be noted that the Commission specified that, in substance, the discount granted under point 7.3 of the 2010 AIP or under the 2010 operation agreement was the same. In addition, it should be pointed out that the charges established in the 2008 operation agreement, that is to say, one of the 2008 agreements, already corresponded to those set out in the 2008 AIP, as is apparent from recital 68 of the contested decision.

140

Consequently, the objective of the 2010 operation agreement was, inter alia, to allow Wizz Air to benefit, at a minimum, from the same discount as that provided for in point 7.3 of the 2010 AIP and therefore, to that extent, to align the 2010 operation agreement with that AIP. The fact that Wizz Air benefited from certain discounts through the application of the agreement rather than through the application of the AIP is therefore irrelevant, since, in any event, it was in practice able to benefit from the discount as established in point 7.3 of the 2010 AIP and was required to fulfil the same criteria as other airlines which were subject only to that AIP.

141

Second, it must be observed that Wizz Air did not put forward the argument that the 2010 AIP was not applicable to it in its statement in intervention, nor during the administrative procedure. On the contrary, it should be noted that ‘Wizz Air claimed that a discount up to 85% pursuant [to the] 2010 AIP was never applied[, but that, instead], an average maximum 73% discount was applied after the Romanian Ministry of Transport [had] opposed the above[mentioned] scheme of charges’ (recital 121 of the contested decision).

142	Wizz Air further argued, during the administrative procedure, that, under the 2007, 2008 and 2010 AIPs, ‘there [was] no selectivity and advantage in its favour [and that] [o]ther airlines … therefore could [have] benefit[ed] from the same level of discount’ (recital 122 of the contested decision).

143	It should also be noted that Romania stated that, ‘according to the 2010 AIP, the maximum reduction of airport charges applicable to Wizz Air amounted to [in between] 67% and 72%’ (recital 100 of the contested decision).

144

Lastly, in its assessment of whether the 2010 AIP was selective, the Commission, first, found that the system of airport charges and the discounts and rebates were applicable to all airlines using, or liable to use, the airport (recital 290 of the contested decision), and, second, stated that other airlines, in addition to Wizz Air, benefited or could have benefited from the discounts provided for therein (recital 292 of the contested decision).

145	It follows that Wizz Air could benefit, in the same way as other airlines, from the discounts as provided for in the 2010 AIP and did in fact do so.

146	In those circumstances, the Commission and Wizz Air cannot argue that the 2010 AIP was not applicable to Wizz Air for the purpose of disputing whether the applicant is directly concerned.

147

In relation to the second criterion, the contested decision regarding the 2010 AIP produces legal effects purely automatically by virtue of EU rules alone and without the application of other intermediate rules. The action therefore satisfies the second of the two criteria set out in paragraph 130 above.

148	Accordingly, the applicant is entitled to challenge the merits of the contested decision in so far as it relates to the 2010 AIP.

149

In support of its action, the applicant relies on four pleas in law. By its first plea, it submits that the contested decision is vitiated by an error of law as regards the absence of selectivity in the 2010 AIP. The second plea alleges that the contested decision is vitiated by a manifest error of assessment, an error of law and an inadequate statement of reasons, in so far as it concludes, due to a misapplication of the private operator in a market economy test, that the 2008 and 2010 agreements did not confer an undue advantage on Wizz Air. By its third plea, the applicant submits that the Commission committed a manifest error of assessment and infringed its duty of care as regards the price discrimination allegedly practised amongst air carriers at the airport by means of the measures at issue. By its fourth plea, it submits that the contested decision is vitiated by an error of law in that it disregards the State aid allegedly granted to Wizz Air by the 2008 and 2010 agreements in the form of a discounted security charge.

150

Notwithstanding the fact that it has been noted in paragraph 139 above that the discount provided for in point 7.3 of the 2010 AIP was included in the 2010 operation agreement, it is necessary to examine only the first plea, since it has been established in paragraph 129 above that the action is inadmissible in so far as it relates to the 2008 and 2010 agreements. Therefore, there is no need to examine the second and fourth pleas, which relate exclusively to the 2008 and 2010 agreements.

151

Similarly, there is no need to address the third plea. Although its heading also refers to the 2010 AIP, the arguments raised in fact relate solely to the Commission’s assessment of whether there was an economic advantage resulting from the 2008 agreements and, in particular, to its assessment of whether those agreements complied with the market economy operator principle.

152

Lastly, it should be noted that, in the introduction to the application, the applicant submitted that, by protracting the procedure for nine years, the Commission had infringed its right to good administration. It argued that, in particular, the Commission had seriously infringed its right to have its affairs handled within a reasonable time, in accordance with Article 41(1) of the Charter of Fundamental Rights of the European Union.

153

The applicant submits that the 2010 AIP is the only relevant measure with regard to Wizz Air for the purpose of assessing whether the airport charges at issue are selective, since the 2007 and 2008 AIPs did not apply to that airline. The applicant maintains that the contested decision is vitiated by an error of law in so far as it concludes that the 2010 AIP was not selective, since the Commission made an incorrect assessment of the selectivity criterion for the purposes of Article 107(1) TFEU and incorrectly assessed the selective nature of the 2010 AIP.

154

More specifically, the applicant complains that the Commission failed to examine whether the discount on airport charges provided for in the 2010 AIP was designed in such a way that de facto favoured Wizz Air. In that regard, it submits that the new discount of up to 85% on airport charges, provided for in point 7.3 of the 2010 AIP, was designed to grant a selective advantage to Wizz Air, which was the only airline at the airport using aircraft with a maximum take-off weight (‘MTOW’) above 70 tonnes and which carried more than 10000 passengers per month.

155

The Commission, supported by Wizz Air and AITTV, disputes the applicant’s line of argument. The Commission contends that it examined the design and application of the system of airport charges and discounts and sought to determine whether the discounts were granted in a non-discriminatory manner to all airlines present at the airport. In that regard, the 2010 AIP provided not only for discounts for aircraft above 70 tonnes MTOW, but also for other discounts, including for smaller aircraft such as those operated by the applicant. It argues that such differentiation is inherent in the overall system of discounts and does not render those discounts selective.

156	In addition, it contends that Wizz Air was not the only airline at the airport operating aircraft above 70 tonnes MTOW, such that other airlines could benefit from the discount provided for in point 7.3 of the 2010 AIP.

157	The Commission examined whether there was State aid in relation to the airport charges published in the 2007, 2008 and 2010 AIPs in recitals 267 to 299 of the contested decision. It assessed the condition relating to selectivity in recitals 284 to 299 of the contested decision.

158

Thus, in recital 289 of the contested decision, the Commission stated that the relevant reference framework for examining whether the 2007, 2008 and 2010 AIPs had the effect of favouring certain airlines over others which were in a comparable factual and legal situation was that provided for by the regime applicable to the airport. In that regard, it noted, in recital 290 of the contested decision, that the system of airport charges and the discounts and rebates were applicable to all airlines using, or liable to use, the airport which met the conditions described in the 2007 AIP, 2008 AIP or 2010 AIP, respectively.

159

In recital 292 of the contested decision, the Commission noted that ‘the applicable discounts were on a sliding scale, with the lowest starting at 10% for 250-500 landings per year, i.e. approximately 5 landings a week’ and that, ‘in the period under assessment, in addition to Wizz Air, there were a number of other airlines operating at [the airport] which had in their fleet aircraft of the relevant sizes and/or sufficient [frequencies] and therefore [benefited or could have benefited from] the relevant discounts’.

160

In recitals 293 and 294 of the contested decision, the Commission concluded that the base rate, the rebates and the discounts set out in the 2007, 2008 and 2010 AIPs were not selective since they were applicable in a non-discriminatory manner. The Commission therefore concluded that that measure did not constitute State aid within the meaning of Article 107(1) TFEU.

161

Under Article 107(1) TFEU, ‘any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the internal market’.

162

Classification as State aid, according to settled case-law, requires all the following conditions to be fulfilled. First, there must be an intervention by the State or through State resources. Second, the intervention must be liable to affect trade between Member States. Third, it must confer a selective advantage on the recipient. Fourth, it must distort or threaten to distort competition (see judgment of 21 December 2016, Commission v Hansestadt Lübeck, C‑524/14 P, EU:C:2016:971, paragraph 40 and the case-law cited).

163

As regards the condition relating to the selectivity of the advantage, it follows from settled case-law that the assessment of that condition requires a determination as to whether, under a particular legal regime, a national measure is such as to favour ‘certain undertakings or the production of certain goods’ over others which, in the light of the objective pursued by that regime, are in a comparable factual and legal situation. The concept of ‘State aid’ does not refer to State measures which differentiate between undertakings and which are, therefore, prima facie selective where that differentiation arises from the nature or the overall structure of the system of which they form part (see judgment of 21 December 2016, Commission v Hansestadt Lübeck, C‑524/14 P, EU:C:2016:971, paragraph 41 and the case-law cited).

164

In addition, Article 107(1) TFEU does not distinguish between the causes or the objectives of State aid measures, but defines them in relation to their effects (see judgment of 26 September 2024, JCDecaux Street Furniture Belgium v Commission, C‑710/22 P, EU:C:2024:787, paragraph 43 and the case-law cited).

165

Accordingly, whilst it cannot be ruled out that a measure by which a public undertaking lays down the conditions for the use of its goods or services is selective despite applying to all the undertakings using those goods or services, it is necessary, in order to determine whether that is the case, to have regard not to the nature of that measure but to its effects, by examining whether the advantage which it is supposed to procure in fact benefits only some of those undertakings as opposed to others, although, in the light of the objective pursued by the regime concerned, all of the undertakings are in a comparable factual and legal situation (judgment of 21 December 2016, Commission v Hansestadt Lübeck, C‑524/14 P, EU:C:2016:971, paragraph 49).

166

In order to determine whether a measure is selective, it must be examined whether, within the context of a specified legal regime, that measure constitutes an advantage for certain undertakings over others which are, in the light of the objective pursued by that regime, in a comparable factual and legal situation (see judgment of 21 December 2016, Commission v Hansestadt Lübeck, C‑524/14 P, EU:C:2016:971, paragraph 54 and the case-law cited).

167	That examination therefore in principle requires prior definition of the reference framework within which the measure concerned fits (see, to that effect, judgment of 21 December 2016, Commission v Hansestadt Lübeck, C‑524/14 P, EU:C:2016:971, paragraph 55).

168

In the first place, it should be noted that points 1 to 4 of the 2010 AIP set out the rates of the various airport charges (namely landing, lighting, parking and passenger services, including security). The charges actually invoiced could be subject to various types of reductions. Points 7.1, 7.2 and 7.3 of the 2010 AIP provided, respectively, for three non-cumulative types of reductions:

–	first, rebates of 10% to 70% depending on the number of landings performed in the previous year at the airport with respect to international flights;

–

second, a discount of 50% for a period of 12 months for new air carriers at the airport performing at least 3 flights per week with an aircraft having a capacity of at least 70 seats. For each new destination served, the discount applied was 50% for a period of six months. In addition to those discounts, AITTV also granted a reimbursement of 10% to 30% of revenue from the embarkment charge, depending on the number of embarked passengers per year;

–	third, discounts of 72% to 85% for aircraft above 70 tonnes MTOW with more than 10000 embarked passengers per month.

169

It is apparent from recitals 46 to 49 of the contested decision that the reductions described in the first and second indents of paragraph 168 above were already provided for in the 2008 AIP. Thus, the reductions provided for in point 7.3 of the 2010 AIP and described in the third indent of paragraph 168 above constituted the only novel feature in relation to the 2008 AIP.

170

In the second place, it must be stated that, of the reductions provided for in the 2010 AIP, the applicant refers only to those set out in point 7.3. According to the Commission, since the argument relating to de facto selectivity put forward by the applicant concerns solely those reductions, that is to say, a different measure from the one examined in the contested decision, that argument must be regarded as ineffective.

171

The Commission’s argument cannot, however, be accepted. It is true that, in recitals 287 to 299 of the contested decision, the Commission examined whether all the measures provided for in the 2007, 2008 and 2010 AIPs were selective, without examining separately the discount referred to in point 7.3 of the 2010 AIP. Nonetheless, the fact remains that that latter discount is also covered by the contested decision and there is nothing to indicate that the Commission intended to exclude it from the material scope of its analysis. Moreover, the applicant specifically argues that the Commission incorrectly failed to examine whether that discount, taken individually, was not selective with respect to Wizz Air.

172	In the third place, as has been established in paragraph 146 above, the Commission and Wizz Air were incorrect in arguing that the 2010 AIP did not apply to Wizz Air.

173	Those points having been made clear, it must now be examined whether the Commission’s assessment of the 2010 AIP as regards the selectivity of the aid is well founded.

174

The applicant claims, in essence, that the fact that the 2010 AIP applied to all airlines operating at the airport and that other airlines benefited or could have benefited from the relevant discounts does not preclude the discounts provided for in the 2010 AIP from being designed to favour Wizz Air selectively.

175	In the first place, as regards the objective pursued by the discounts provided for in point 7.3 of the 2010 AIP, the Commission refers to the airport’s economic objectives of attracting larger aircraft, thereby enabling increases in revenue.

176

Nevertheless, the objective pursued by those discounts cannot, by itself, suffice to rule out selectivity. Such an approach would be tantamount to excluding a priori any possibility of classifying as ‘selective advantages’ the advantages granted to airlines with aircraft above 70 tonnes MTOW and carrying more than 10000 passengers per month. It would thus be sufficient for public authorities to invoke the legitimacy of the objectives pursued by the adoption of an aid measure for the measure to be regarded as a general measure, outside the scope of Article 107(1) TFEU (see, by analogy, judgment of 19 October 2022, Greece v Commission, T‑850/19, EU:T:2022:638, paragraph 59 and the case-law cited).

177

In the second place, the Commission considered, in recital 290 of the contested decision, that the system of airport charges and the discounts and rebates were applicable to all airlines using, or liable to use, the airport which met the conditions described in the 2007 AIP, 2008 AIP or 2010 AIP, respectively.

178

In that regard, first of all, in so far as the applicant’s line of argument, put forward in the reply, claiming that the contested decision is vitiated by errors in the analysis of whether the 2010 AIP differentiated between undertakings in comparable situations, and of whether such differentiation could be justified in the light of the objectives of the reference system, is intended to respond to the arguments put forward in the defence, it does not, contrary to the Commission’s contention, constitute an inadmissible new plea.

179

Next, it must be pointed out that the nature of the 2010 AIP, which took the form of the application of a ‘general’ regime based on objective criteria, does not preclude a finding that the reductions for which it provides are selective. The condition relating to selectivity has a broader scope, extending to measures which, by their effects, favour certain undertakings on account of the specific features characteristic of those undertakings. Similarly, it is apparent from the case-law that the fact that the aid is not aimed at one or more specific recipients defined in advance, but is subject to a series of objective criteria pursuant to which it may be granted to an indefinite number of beneficiaries who are not initially individually identified, cannot suffice to call into question the selective nature of the measure and, accordingly, its classification as State aid within the meaning of Article 107(1) TFEU. At the very most, such a fact means that the measure in question is not individual aid. It does not, however, preclude that public intervention from having to be regarded as an aid scheme constituting a selective, and therefore specific, measure if, owing to the criteria governing its application, it procures an advantage for certain undertakings or for the production of certain goods, to the exclusion of others (see, to that effect, judgments of 29 September 2000, CETM v Commission, T‑55/99, EU:T:2000:223, paragraph 40; of13 September 2012, Italy v Commission, T‑379/09, not published, EU:T:2012:422, paragraph 47; and of 30 April 2014, Tisza Erőmű v Commission, T‑468/08, not published, EU:T:2014:235, paragraph 164).

180

In the present case, it is true that the system of airport charges and the discounts and rebates in principle applied to all airlines using, or liable to use, the airport. However, the two cumulative criteria laid down in point 7.3 of the 2010 AIP, namely having aircraft above 70 tonnes MTOW and carrying more than 10000 passengers per month, were formulated in such a way that the circle of potential beneficiaries of the abovementioned discounts was necessarily limited.

181

That finding is, moreover, confirmed by the fact that the Commission, Wizz Air and AITTV referred only to Tarom as another airline, apart from Wizz Air, that was capable of benefiting from those discounts. In that regard, it must be observed that, although, in its statement in intervention, Wizz Air refers to airlines other than itself and Tarom, they are airlines which, according to Wizz Air, were in discussions with the airport in 2008 in relation to the operation of routes from the airport and which, ultimately, were not among those listed in recital 33 of the contested decision as having served the airport from 2007 to 2009.

182

Therefore, the fact that a very limited number of airlines were capable of benefiting from the reductions provided for in point 7.3 of the 2010 AIP could not be considered by the Commission to be a random consequence of the regime at issue, but rather had to be regarded as the inevitable result of the fact that those reductions were specifically designed in such a way that only the few airlines with aircraft above 70 tonnes MTOW and able to carry more than 10000 passengers per month could obtain discounts of 72% to 85%, that is to say, reductions much higher than those provided for in points 7.1 and 7.2 of the 2010 AIP.

183

In the third place, in recital 292 of the contested decision, the Commission noted that ‘the applicable discounts were on a sliding scale, with the lowest starting at 10% for 250-500 landings per year, i.e. approximately 5 landings a week’ and that, ‘in the period under assessment, in addition to Wizz Air, there were a number of other airlines operating at [the airport] which had in their fleet aircraft of the relevant sizes and/or sufficient [frequencies] and therefore [benefited or could have benefited from] the relevant discounts’.

184

In so doing, first, the Commission examined jointly the three types of reductions provided for in the 2010 AIP, without explaining how, for the purpose of determining whether those reductions were selective, such a joint assessment was relevant, given that each type of reduction met different conditions and those reductions were not cumulative. It therefore failed to examine whether the type of reduction specifically provided for in point 7.3 of the 2010 AIP, taken in isolation, favoured Wizz Air owing to the criteria governing its application, to the exclusion of the other airlines operating at the airport.

185

Second, the Commission did not take a position on the question whether, as regards specifically the type of reduction provided for in point 7.3 of the 2010 AIP, airlines other than Wizz Air had in their fleet aircraft of the relevant sizes and sufficient frequencies which actually enabled them to benefit from it.

186	In that respect, it must be noted that the Commission contends that it found, in recitals 122 and 390 of the contested decision, that other airlines were operating aircraft above 70 tonnes MTOW, just as Wizz Air did, and could therefore benefit from that reduction.

187	However, it must be stated that recital 122 of that decision does not contain any assessment by the Commission, but rather reproduces one of the arguments put forward by Wizz Air during the administrative procedure. Furthermore, that recital contains no details as to the airlines concerned.

188	In any event, even if it were to be considered that the airlines to which Wizz Air refers, other than Tarom, are the same as those referred to in its statement in intervention, it has already been found, in paragraph 181 above, that they did not serve the airport.

189

As regards recital 390 of the contested decision, which forms part of the Commission’s assessment of the study produced by the applicant in the context of the analysis of the profitability of the 2008 agreements, it indeed follows that the Commission appears to have accepted, as Romania submitted, that the airline Tarom also used aircraft above 70 tonnes MTOW.

190

However, not only does recital 390 of the contested decision not indicate that several other airlines used such aircraft, but, moreover, it is not apparent from that recital that Tarom satisfied, or was likely to satisfy, the criterion relating to the number of passengers carried per month. On the contrary, paragraph 40 of the rejoinder suggests that that was not the case, since the Commission responds to the applicant’s argument that Tarom’s use of such aircraft was de minimis, stating that it was not impossible that such use might increase in the future. Nor does the Commission dispute the average figure of 5480 passengers carried per month by Tarom in 2009, put forward by the applicant in the reply.

191	Lastly, in its statement in intervention, AITTV made reference to a document containing a list of aircraft used by airlines other than Wizz Air which operated aircraft over 70 tonnes MTOW between 2006 and 2013.

192

However, according to the case-law, it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (see judgment of 15 September 2021, Laboratoire Pareva and Biotech3D v Commission, T‑337/18 and T‑347/18, EU:T:2021:594, paragraph 77 and the case-law cited).

193

Thus, it was for AITTV to specify, in the body of the statement in intervention, the names of the airlines concerned and to explain how the document produced in the annex substantiated its arguments. In any event, according to AITTV’s description of that document, although it lists airlines using aircraft above 70 tonnes MTOW, it does not contain any indication as to the number of passengers carried.

194	Accordingly, it has not been established that the type of reductions provided for in point 7.3 of the 2010 AIP benefited airlines other than Wizz Air, or that Tarom or any other airline reached the minimum number of embarked passengers per month as required by point 7.3 of that AIP.

195

Third, it must be observed that consideration, as relied on by the Commission, of the other two reduction measures provided for by the 2010 AIP is all the more likely to call into question the allegedly non-selective nature of the reductions provided for in point 7.3 of that AIP. Those other two measures provided for reductions within brackets ranging from 10% to 70% and from 10% to 30%, whereas point 7.3 grants higher and markedly less progressive reductions starting at 72% and going up to 85%.

196	Consequently, it must be concluded that the Commission erred in law by failing to examine whether the discount provided for in point 7.3 of 2010 AIP, taken individually, was intended to apply selectively.

197

In the light of the foregoing considerations, the first plea in law must be upheld, without it being necessary to examine either the allegedly belated nature or the merits of the applicant’s argument that the discounts provided for in point 7.3 of the 2010 AIP constituted a derogation from the reference system established by that AIP. Accordingly, the contested decision must be annulled in so far as it finds that the 2010 AIP does not constitute State aid on the ground that it is not selective in nature and, in addition, there is no need to examine any plea alleging breach of the principle of reasonable time.

198

It follows from all of the foregoing that the action must be dismissed in part as inadmissible, in so far as it seeks annulment of the contested decision to the extent that that decision relates to the 2008 and 2010 agreements. By contrast, the action must be upheld in part in so far as it seeks annulment of the contested decision to the extent that that decision relates to the 2010 AIP.

199

In accordance with Article 195 of the Rules of Procedure, in decisions of the General Court given after its decision has been set aside and the case referred back to it, it is for the General Court to decide in the present judgment, first, on all the costs relating to the proceedings instituted before it, namely the proceedings in Cases T‑522/20 and T‑522/20 RENV, and, second, on the costs relating to the proceedings on the appeal before the Court of Justice, namely the proceedings in Joined Cases C‑244/23 P to C‑246/23 P.

200	Under Article 134(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the parties are in principle to bear their own costs.

201	Lastly, under Article 135(1) of the Rules of Procedure, if equity so requires, the General Court may decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing its own, or even that it is not to be ordered to pay any.

202

In the present case, it must be noted that the Commission was unsuccessful in the proceedings which gave rise to the initial judgment, whereas the applicant was unsuccessful in the proceedings which gave rise to the judgment on appeal. In view of the fact that, in the present proceedings, the action has been upheld in part and dismissed in part as inadmissible, it would be a fair assessment of the case to order each party to bear its own costs relating to the proceedings in Cases T‑522/20 and T‑522/20 RENV and in Joined Cases C‑244/23 P to C‑246/23 P.

203	Lastly, under Article 138(3) of the Rules of Procedure, the General Court may order an intervener other than those referred to in Article 138(1) and (2) of those rules to bear its own costs.

204	In those circumstances, Wizz Air and AITTV must be ordered to bear their own costs.

On those grounds,

THE GENERAL COURT (Second Chamber, sitting with five Judges)

hereby:

1.

Annuls Article 2 of Commission Decision (EU) 2021/1428 of 24 February 2020 on the State Aid SA.31662 – C/2011 (ex NN/2011) implemented by Romania for Timișoara International Airport – Wizz Air in so far as it concludes that the airport charges in the Aeronautical Information Publication of 2010 do not constitute State aid;

2.	Dismisses the action as to the remainder;

3.

Orders Carpatair SA, the European Commission, Wizz Air Hungary Légiközlekedési Zrt. (Wizz Air Hungary Zrt.) and Societatea Națională ‘Aeroportul Internațional Timișoara – Traian Vuia’ SA (AITTV) each to bear their own costs relating to the proceedings before the General Court and before the Court of Justice.

Półtorak

Martín y Pérez de Nanclares

Hesse

Steinfatt

Petrlík

Delivered in open court in Luxembourg on 13 May 2026.

V. Di Bucci

Registrar

E. Buttigieg

President

	I. Background to the dispute
	II. Procedure prior to referral
	A. The initial judgment
	B. The judgment on appeal
	III. Procedure and forms of order sought by the parties after the referral of the case back to the General Court
	IV. Law
	A. Admissibility of the excerpts from the judicial administrator’s report
	B. Admissibility of the action
	1. The applicant’s interest in bringing proceedings
	2. The applicant’s standing to bring proceedings
	(a) The question whether the applicant is individually concerned as regards the 2008 and 2010 agreements
	(1) Preliminary observations
	(2) The question whether there was direct competition between the applicant and Wizz Air
	(3) The question whether there was indirect competition between the applicant and Wizz Air
	(4) The question whether the applicant had a particular status
	(b) The question whether the applicant is directly concerned as regards the 2010 AIP
	C. Substance
	1. The pleas in law raised by the applicant
	2. The first plea in law, alleging an error of law as regards the absence of selectivity in the 2010 AIP
	(a) The assessment of the 2010 AIP in the contested decision
	(b) The merits of the assessment of the 2010 AIP in the contested decision
	(1) Preliminary observations
	(2) The merits of the selectivity assessment
	D. Conclusion regarding the action
	V. Costs

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