Ryanair and Ryanair Sun v Commission (State aid - Polish air transport market - Aid granted by Poland to LOT in the context of the COVID-19 pandemic - Judgment) [2025] EUECJ T-398/21 (02 April 2025)
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Ryanair and Ryanair Sun v Commission (State aid - Polish air transport market - Aid granted by Poland to LOT in the context of the COVID-19 pandemic - Judgment) [2025] EUECJ T-398/21 (02 April 2025)
URL: https://www.bailii.org/eu/cases/EUECJ/2025/T39821.html Cite as:
ECLI:EU:T:2025:357,
EU:T:2025:357,
[2025] EUECJ T-398/21
( State aid - Polish air transport market - Aid granted by Poland to LOT in the context of the COVID-19 pandemic - Subsidised loan and capital injection - Decision not to raise any objections - Article 107(3)(b) TFEU - Temporary Framework for State aid measures - Principle of non-discrimination - Freedom to provide services - Freedom of establishment - Obligation to state reasons )
In Case T‑398/21,
Ryanair DAC, established in Swords (Ireland),
Ryanair Sun S.A., established in Warsaw (Poland),
represented by F.‑C. Laprévote, E. Vahida, S. Rating, D. Pérez de Lamo and C. Cozzani, lawyers,
applicants,
v
European Commission, represented by L. Flynn, F. Tomat and C. Georgieva, acting as Agents,
defendant,
supported by
Republic of Poland, represented by B. Majczyna, M. Rzotkiewicz, S. Żyrek and J. Florecka, acting as Agents,
and by
Polskie Linie Lotnicze 'LOT' S.A., established in Warsaw, represented by M. Krakowiak and A. Glapa, lawyers,
interveners,
THE GENERAL COURT (Seventh Chamber),
composed of K. Kowalik-Bańczyk, President, G. Hesse and B. Ricziová (Rapporteur), Judges,
Registrar: P. Cullen, Administrator,
having regard to the written part of the procedure,
further to the hearing on 14 March 2024,
gives the following
Judgment
1 By their action under Article 263 TFEU, the applicants, Ryanair DAC and Ryanair Sun S.A., seek the annulment of Commission Decision C(2020) 9606 final of 22 December 2020 on State aid SA.59158 (2020/N) – Poland – COVID-19: Aid to LOT (OJ 2021 C 260, p. 1; 'the contested decision').
I. Background to the dispute
2 On 11 December 2020, the Republic of Poland notified the European Commission, under Article 107(3)(b) TFEU and in the light of the Communication from the Commission of 19 March 2020, entitled 'Temporary Framework for State aid measures to support the economy in the current COVID-19 outbreak' (OJ 2020 C 91 I, p. 1), as amended on 3 April 2020 (OJ 2020 C 112 I, p. 1), 8 May 2020 (OJ 2020 C 164, p. 3), 29 June 2020 (OJ 2020 C 218, p. 3) and 13 October 2020 (OJ 2020 C 340 I, p. 1); 'the Temporary Framework'), of an aid scheme involving two individual aid measures for Polskie Linie Lotnicze 'LOT' S.A. ('LOT') amounting to a total of approximately 2.9 billion zlotys (PLN) (approximately EUR 650 million).
3 LOT is the parent company of LOT Crew Sp. z o.o., LOT Team Sp. z o.o., LOT Travel Sp. z o.o., LOT Cabin Crew Sp. z o.o., and Central Europe Engine Services Sp. z o.o. It is 100% controlled by Polska Grupa Lotnicza S.A. ('PGL'), which is wholly owned by the Polish State Treasury.
4 The measures at issue are intended to restore the balance sheet and liquidity position of LOT in the exceptional situation caused by the COVID-19 pandemic and are financed by means of public resources from the COVID-19 Counteraction Fund and the Polish Development Fund and are managed by the Polish Minister of State Assets.
5 The measures at issue comprise the following two types of aid:
– a subsidised loan of PLN 1.8 billion (approximately EUR 400 million) ('the subsidised loan');
– a capital injection of EUR 250 million ('the recapitalisation measure').
6 On 22 December 2020, the Commission adopted the contested decision, by which it decided not to raise objections to the aid at issue on the ground that it was compatible with the internal market on the basis of Article 107(3)(b) TFEU.
9 The Republic of Poland and LOT, the interveners, contend that the action should be dismissed.
III. Law
10 The applicants raise five pleas in law in support of the action, alleging, respectively, (i) misapplication of the Temporary Framework; (ii) misapplication of Article 107(3)(b) TFEU; (iii) infringement of specific provisions of the TFEU, of general principles of EU law, such as the principles of non-discrimination, the freedom to provide services and the freedom of establishment, and also of Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community (OJ 2008 L 293, p. 3); (iv) that the Commission should have initiated the formal investigation procedure and breach of their procedural rights; and (v) breach of the obligation to state reasons.
A. The intensity of judicial review
11 As a preliminary point, it should be borne in mind that the assessment of the compatibility of aid measures with the internal market, under Article 107(3) TFEU, falls within the exclusive competence of the Commission, subject to review by the Courts of the European Union (judgment of 19 July 2016, Kotnik and Others, C‑526/14, EU:C:2016:570, paragraph 37).
12 In that regard, it is settled case-law that the Commission enjoys wide discretion, the exercise of which involves complex economic and social assessments (see judgment of 19 July 2016, Kotnik and Others, C‑526/14, EU:C:2016:570, paragraph 38 and the case-law cited). Article 107(3) TFEU confers on the Commission broad discretion to allow aid by way of derogation from the general prohibition laid down in Article 107(1) TFEU, inasmuch as the determination, in those cases, of whether State aid is compatible or incompatible with the internal market raises problems which make it necessary to examine and appraise complex economic facts and conditions (judgments of 18 January 2012, Djebel – SGPS v Commission, T‑422/07, not published, EU:T:2012:11, paragraph 107, and of 1 March 2016, Secop v Commission, T‑79/14, EU:T:2016:118, paragraph 29). In that context, judicial review of the manner in which that discretion is exercised is confined to establishing that the rules of procedure and the rules relating to the duty to give reasons have been complied with, and to verifying the accuracy of the facts relied on and that there has been no error of law, manifest error in the assessment of the facts or misuse of powers (see judgment of 11 September 2008, Germany and Others v Kronofrance, C‑75/05 P and C‑80/05 P, EU:C:2008:482, paragraph 59 and the case-law cited).
13 However, in the exercise of that discretion, the Commission may adopt guidelines in order to establish the criteria on the basis of which it proposes to assess the compatibility, with the internal market, of aid measures envisaged by the Member States. In adopting such guidelines and announcing by publishing them that they will apply to the cases to which they relate, the Commission imposes a limit on the exercise of that discretion and cannot, as a general rule, depart from those guidelines, at the risk of being found to be in breach of general principles of law, such as equal treatment or the protection of legitimate expectations (judgment of 19 July 2016, Kotnik and Others, C‑526/14, EU:C:2016:570, paragraphs 39 and 40).
14 Accordingly, in the specific area of State aid, the Commission is bound by the guidelines and notices that it issues, to the extent that they do not depart from the rules in the Treaty (see judgment of 2 December 2010, Holland Malt v Commission, C‑464/09 P, EU:C:2010:733, paragraph 47 and the case-law cited). It is therefore for the Courts of the European Union to determine whether the Commission has observed the rules which it adopted (see judgment of 8 April 2014, ABN Amro Group v Commission, T‑319/11, EU:T:2014:186, paragraph 29 and the case-law cited).
15 Furthermore, in the context of the review conducted by the Courts of the European Union on complex economic assessments carried out by the Commission in the field of State aid, it is not for those Courts to substitute their own economic assessment for that of the Commission. However, the Courts of the European Union must, in particular, establish not only whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the relevant information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it (judgment of 24 January 2013, Frucona Košice v Commission, C‑73/11 P, EU:C:2013:32, paragraphs 75 and 76; see, also, judgment of 24 October 2013, Land Burgenland and Others v Commission, C‑214/12 P, C‑215/12 P and C‑223/12 P, EU:C:2013:682, paragraph 79 and the case-law cited). Likewise, the Courts of the European Union must review the Commission's interpretation of information of an economic nature (see, to that effect, judgment of 22 November 2007, Spain v Lenzing, C‑525/04 P, EU:C:2007:698, paragraph 56).
16 Consequently, although the review carried out by the Courts of the European Union is limited as regards the complex economic and social assessments made by the Commission, as is apparent from the case-law referred to in paragraph 12 above, that review is, by contrast, comprehensive as regards the evaluations made by the Commission which do not involve such assessments or as regards questions of a strictly legal nature.
B. First plea in law, alleging misapplication of the Temporary Framework
17 The first plea in law is composed of five parts, relating, first, to LOT's eligibility for recapitalisation aid under the Temporary Framework; second, to the existence of other more appropriate and less distortive measures than recapitalisation; third, to the proportionality of the amount of the recapitalisation; fourth, to the valuation of LOT's equity; and fifth, to governance and the prevention of undue distortions of competition.
1. The first part, alleging failure to demonstrate that LOT is eligible for the aid
18 The applicants claim, in essence, that the Commission infringed point 49 of the Temporary Framework. Their line of argument in that regard includes five complaints, alleging, respectively, failure to assess the role of PGL and the companies belonging to its group ('the PGL group') other than LOT and to identify correctly the beneficiary of the recapitalisation aid under that framework, and also failure to comply with the eligibility conditions laid down in point 49(a) to (d) of the Temporary Framework.
(a) The first complaint, alleging failure to assess the role of PGL and the companies in the PGL group other than LOT and to identify correctly the beneficiary of the aid
19 The applicants submit that the Commission did not identify correctly the beneficiary of the aid and did not provide sufficient reasoning for its decision. They argue that since LOT is 100% owned by PGL, which itself owns other companies such as LOT Aircraft Maintenance Services, LS Airport Services and LS Technics, the Commission should have assessed to what extent the aid at issue could also benefit the PGL group as a whole or the undertakings forming part of that group, which have also received aid from the Polish Government, while those public support measures at the very least illustrate a risk of spill-over of the aid to other PGL subsidiaries. Furthermore, the Commission also failed to investigate whether the PGL group or its subsidiaries were eligible for the aid under the Temporary Framework, for example, whether the group was in difficulties prior to the COVID-19 pandemic or whether its rescue was in the common interest. The applicants add that the Commission failed objectively to distinguish the present case from the judgment of 19 May 2021, Ryanair v Commission (KLM; Covid-19) (T‑643/20, EU:T:2021:286) since it set out a shareholder structure which did not include the other subsidiaries of PGL and did not verify that there were specific mechanisms to prevent the aid from also benefiting those subsidiaries. Moreover, the Commission did not assess whether PGL had played a role in the administration of the measure at issue.
20 The Commission, supported by the Polish Republic and LOT, contests the arguments made by the applicants.
21 In paragraphs 28 to 30 of the contested decision the Commission explicitly identified LOT as the sole beneficiary, while providing information about its parent company and subsidiaries. Accordingly, it is stated that LOT was 100% controlled by PGL, which was itself fully owned by the Polish State Treasury, and also that LOT was the parent company of LOT Crew, LOT Team, LOT Travel, LOT Cabin Crew and Central Europe Engine Services. In addition, it is apparent from that part of the decision that LOT also held 50% of the capital of WRO-LOT – USŁUGI LOTNISKOWE Sp. z o.o., while not controlling the latter, and 49% of the capital of Regional JET OÜ, a holding which had, however, been sold on 22 December 2020.
22 Furthermore, the Commission stated in paragraph 59 of the contested decision that the Republic of Poland had confirmed that LOT would not use the aid to support any of its subsidiaries.
23 In that regard, in the first place, it is clear from the relevant parts of the contested decision that the sole beneficiary of the measures at issue was LOT, even though a number of the commitments given by the Republic of Poland in respect of governance and the prevention of undue distortions of competition also applied, as part of a more conservative approach, to the companies controlled by LOT, as is apparent from paragraphs 56, 57, 150, 151 and 154 of that decision. It should also be observed that LOT added in its statement in intervention that the Republic of Poland had provided declarations to the Commission that the planned aid was intended only for LOT and for its needs, which is not disputed by the applicants.
24 In the second place, there were no indications that the measures at issue could also benefit PGL and other companies in the PGL group aside from LOT, such that the Commission should have extended its examination to PGL and those other companies, referred to in paragraph 19 above. While it is true that the onus is on the Commission to exercise particular vigilance in examining the links between companies belonging to the same group where there are grounds to fear the effects on competition of an accumulation of State aid within the same group and where the parent of those companies has played a role of some kind in the grant and administration of that aid (see, to that effect, judgment of 19 May 2021, Ryanair v Commission (KLM; Covid-19), T‑643/20, EU:T:2021:286, paragraph 48), there was no such concern in the present case. Here, it is apparent, first, from paragraphs 21 and 22 above that LOT was identified as the sole beneficiary of the aid and, second, from paragraph 24 of the contested decision, that the administration of the aid would be carried out directly by the Polish Minister of State Assets and not by PGL. The applicants have not adduced any evidence capable of calling those findings into question.
25 In the third place, as regards the applicants' claim that the Republic of Poland had granted a large number of public support measures to the PGL group and the companies belonging to that group, including LOT and the companies owned by LOT, it must be stated that the applicants merely point to two measures received by subsidiaries of the PGL group, without, however, providing any evidence that those measures constituted State aid; they also refer in a general manner to annexes which list a number of aid measures received by companies belonging to the PGL group, including LOT and the companies owned by LOT. They do not, however, put forward any expanded and substantiated arguments as to a link between those measures and the possibility of an accumulation of State aid in favour of LOT, or, as regards the aid at issue, as to whether it may be State aid also benefitting the PGL group as a whole or undertakings other than LOT belonging to that group, which the Commission should have examined in the contested decision.
26 In the light of the foregoing, the present complaint must be rejected.
(b) The second complaint, alleging infringement of point 49(a) of the Temporary Framework
27 The applicants submit that the Commission failed to establish that, without the aid, the beneficiary would go out of business or face serious difficulties to maintain its operations, within the meaning of point 49(a) of the Temporary Framework. They add that the Commission presumed that there was no other solution apart from insolvency or aid, such as alternative market-based solutions.
28 The Commission, supported by the Republic of Poland, contests the applicants' arguments.
29 Point 49 of the Temporary Framework, which appears in Section 3.11.2, entitled 'Eligibility and entry conditions', lists the conditions that a recapitalisation measure granted in the context of the COVID-19 pandemic must meet in order for a potential beneficiary to be considered eligible for that measure.
30 The first of those conditions, laid down in point 49(a) of the Temporary Framework, requires establishing that without the State intervention the beneficiary would go out of business or would face serious difficulties to maintain its operations. That point also states that such difficulties may be shown by the deterioration, in particular, of the debt-to-equity ratio of the beneficiary of the State intervention or similar indicators.
31 In paragraphs 102 and 103 of the contested decision, the Commission noted that LOT's impaired equity position was severely affecting its liquidity and threatened its solvency in the short term. That finding was based on financial projections for the period 2020 to 2025 provided by the Polish authorities and from which it was apparent that, in the absence of the recapitalisation measure, LOT's equity would be significantly reduced and would become negative. The Commission also added that, according to the Republic of Poland, LOT would face 'technical illiquidity' despite measures taken in 2020 to obtain liquidity. It is also apparent from paragraph 14 of the contested decision, to which paragraph 102 refers, that LOT's equity level was negative in November 2020, which was confirmed at the hearing, that, in the absence of aid, the value would continue to decrease, and that the cash deficit would worsen between 2020 and the end of 2021. The Commission thus concluded that the measure at issue would prevent LOT's insolvency and that therefore, in the absence of a capital increase, it would face serious difficulties to maintain its operations.
32 It should also be observed that in the contested decision the Commission pointed to a deterioration in LOT's debt-to-equity ratio, as foreseen by point 49(a) of the Temporary Framework (see Table 3 in paragraph 120 of the decision).
33 It must therefore be held that the Commission did not infringe point 49(a) of the Temporary Framework.
34 The argument raised by the applicants, based on a distinction between the concepts of 'illiquidity' and 'insolvency', must be rejected as ineffective. Point 49(a) of the Temporary Framework does not link eligibility for the aid to those concepts but makes it dependent, inter alia, on the undertaking in question facing serious difficulties to maintain its operations.
35 As regards the applicants' argument that the Commission presumed that no other solution existed apart from insolvency or aid, such as alternative market-based solutions, that argument overlaps with the issue raised in the fourth complaint of the first part of the first plea, which will be examined below.
36 The present complaint must therefore be rejected, save for the argument referred to in paragraph 35 above, which will be considered in the context of the fourth complaint of the first part of the first plea.
(c) The third complaint, alleging breach of point 49(b) of the Temporary Framework
37 The applicants argue that the Commission erred in finding that the measure at issue was in the common interest within the meaning of point 49(b) of the Temporary Framework.
38 First, the applicants submit that the Commission merely refers to assertions made by the Polish Government and did not perform an autonomous assessment of LOT's systemic character.
39 Second, the Commission failed to demonstrate that LOT was a systemic undertaking for the Polish economy. According to the applicants, a systemic undertaking is one whose failure would lead to an entire sector of the economy potentially collapsing, which is not the case here. The Commission also failed to demonstrate that LOT's activities could not be replaced by its competitors.
40 Third, the applicants submit that, even assuming that some of LOT's activities had a truly systemic character, the Commission failed to determine whether such systemic activities could be preserved by downsizing the group and reducing or suppressing non-systemic activities.
41 The Commission, supported by the Republic of Poland and LOT, contests the arguments made by the applicants.
42 Point 49(b) of the Temporary Framework provides that the planned recapitalisation measure must be in the common interest. The existence of such a common interest may be shown if the measure at issue is aimed at avoiding social hardship and market failure due to a significant loss of employment, the exit of an innovative or a systemically important company, the risk of disruption to an important service, or similar situations duly substantiated by the Member State concerned (judgment of 10 May 2023, Ryanair and Condor Flugdienst v Commission (Lufthansa; COVID-19), T‑34/21 and T‑87/21, under appeal, EU:T:2023:248, paragraph 101).
43 In paragraph 104 of the contested decision, the Commission found that LOT was of systemic importance for the Polish economy in several respects, namely, in particular, for employment and connectivity, and that, therefore, it was in the common interest to intervene in order to prevent the negative effects of the potential bankruptcy of LOT.
44 That finding was based on information in paragraphs 37 to 44 of the contested decision.
45 In that regard, first, it is stated in the contested decision that LOT played an important role in ensuring connectivity for the Republic of Poland. In 2019, that airline carried approximately 10 million passengers and operated 110 regular routes, including 17 long-haul routes. In the same year it also carried 27.05% of air freight to and from Poland. LOT is the biggest 'connectivity provider' within the countries of Central and Eastern Europe (CEE) in terms of average daily connections and city pairs in that region. It provides the third-highest number of connections from the CEE countries, after Lufthansa and Turkish Airlines, in terms of average daily connections from those countries. Moreover, LOT is the only airline operating an airport hub in Poland, with that hub model allowing it to multiply connections with various parts of the world. It has the most diversified air transport network in Poland, simultaneously covering domestic, European and intercontinental routes. Accordingly, its network is of particular importance for maintaining connectivity for Polish businesses and citizens.
46 Second, it is apparent from the contested decision that LOT and its subsidiaries were major employers, with more than 4 600 employees and that at least 10 000 persons would lose their jobs in companies linked to the aviation sector in the event of LOT's bankruptcy.
47 Third, the contested decision notes that LOT's business makes a significant contribution to the State budget, in the form of social security contributions and air transport taxes.
48 In that regard, in the first place, it should be observed that even though the applicants do not directly and specifically dispute those data, they argue, in essence, that the systemic importance of LOT for the Polish economy within the meaning of point 49(b) of the Temporary Framework has not been demonstrated in the light of the fact that that provision refers to undertakings whose failure would lead to the collapse of the entire sector in which they operate.
49 That interpretation cannot succeed. There is nothing in the wording of point 49(b) of the Temporary Framework to suggest that only undertakings whose exit from the market would lead to the collapse of an entire sector are eligible for aid. Furthermore, a reading of that provision as a whole, and in particular of the examples of cases in which it is in the common interest to intervene, such as the risk of social hardship, of a significant loss of employment or even of disruption to an important service, shows that the interpretation put forward by the applicants is too restrictive.
50 As regards the applicants' reference to the State aid rules applicable to the financial sector, in particular the Communication from the Commission of 30 July 2013 on the application, from 1 August 2013, of State aid rules to support measures in favour of banks in the context of the financial crisis (OJ 2013 C 216, p. 1) and Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ 2013 L 176, p. 338), it need only be observed that the lawfulness of the contested decision must be assessed solely in the framework of Article 107(3)(b) TFEU and the Temporary Framework (see, to that effect, judgment of 27 February 2013, Nitrogénművek Vegyipari v Commission, T‑387/11, not published, EU:T:2013:98, paragraph 126 and the case-law cited), and not in the light of the communication concerning the banking sector or Directive 2013/36, cited by the applicants, since they are not applicable in the present case.
51 In the second place, the applicants' other arguments should also be rejected.
52 First, contrary to what the applicants claim, the Commission was under no obligation to assess whether LOT could easily be replaced by other airlines, or even, as necessary, by alternative routes. No such requirement is prescribed by point 49(b) of the Temporary Framework. In any event, as regards the applicants' arguments that the Commission erred in finding, first, that LOT's airport hub at Warsaw-Chopin Airport (Poland) meant that it was more important for the Polish economy than other airlines without such a hub and, second, that a hub model ensured better connectivity than a point-to-point network, it is sufficient to observe that the applicants have not adduced any evidence capable of supporting those arguments. Furthermore, as regards the applicants' claim that the feeder routes necessary for a hub network are more harmful for the environment than flights in a point-to-point network, it should be observed, as the Commission has done, that the applicants have failed to explain in what way that claim is relevant and nor do they adduce any evidence to show its plausibility.
53 Second, the fact that the Commission did not refer to LOT's market share in the contested decision, in order to demonstrate the latter's systemic importance for the Polish economy, is not capable of invalidating the decision's analysis on that point. In fact, an undertaking's systemic importance may be established on the basis of many other factors, such as those summarised in paragraph 43 above, which establish to the requisite legal standard that the condition laid down in point 49(b) of the Temporary Framework is satisfied. In addition, according to figures provided by the applicants themselves and on which they base their argument, it must be stated that LOT's share of the Polish market in 2019 was significant, with passenger numbers, in terms of originating seats, that were equivalent to those of the first-placed airline, namely 6.5 million.
54 Third, the argument made by the applicants that the Commission relied on the information provided by the Republic of Poland, without performing its own 'autonomous' assessment, has no basis in fact. It necessarily follows from paragraph 104 of the contested decision that the Commission assessed the evidence submitted by the Republic of Poland and found it to be reliable. In addition, it is apparent from footnotes 15 to 17 of that decision, referred to under the heading 'Importance of LOT for the Polish economy', that the Commission also verified certain information on the weight of the aviation sector in Poland by reference to independent sources, such as the International Air Transport Association (IATA).
55 Fourth, the applicants complain that the Commission failed to determine whether LOT's systemic activities could be preserved by downsizing the group and reducing or suppressing non-systemic activities. However, it must be observed that point 49(b) of the Temporary Framework does not lay down such an eligibility condition.
(d) The fourth complaint, alleging breach of point 49(c) of the Temporary Framework
57 The applicants submit that the Commission breached point 49(c) of the Temporary Framework since it failed to establish that LOT was not able to find financing on the markets at affordable terms. They argue that the Commission ignored a number of relevant matters in that regard.
58 First, the Commission did not carry out its own assessment, which constitutes a failure to state reasons which is similar to that which led to the annulment of the Commission's decision granting aid to the airline KLM (judgment of 19 May 2021, Ryanair v Commission (KLM; Covid-19), T‑643/20, EU:T:2021:286). According to the applicants, the Commission could not simply infer from a provision of national banking law that LOT did not have access to alternative financing solutions. Nor did the Commission analyse LOT's creditworthiness or available collateral, such as its airport slots or aircraft.
59 Second, the Commission did not consider the fact that LOT could have obtained financing from international or European banks or by other non-Polish financial institutions. There was no objective reason to limit the scope of financing possibilities to Polish banks only. As a result, the Commission missed the range of financing alternatives available to LOT and thus failed to review compliance with that requirement of the Temporary Framework.
60 Third, the Commission failed to consider the possibility of raising funds in an innovative manner, such as those applied by a number of other airlines, for example by pledging a frequent flyer programme as collateral or by the sale and leaseback of aircraft. Nor did the Commission refer to alternatives to debt, such as the acquisition of shares by investors other than the Polish State.
61 Fourth, the Commission should have considered the positive effect of LOT being in 100% public ownership on the airline's creditworthiness, since State-owned companies are often considered by the markets to benefit from implicit support from the State. In that regard, the applicants refer to the examples of the railway company Polskie Koleje Panstwowe Spólka Akcyjna (PKP) and the Polish gas transmission network operator Gaz-System S.A., two companies that are wholly owned by the Polish State and which, according to the applicants, obtained financing through the issuance of bonds. They also cite the case of Société nationale des chemins de fer français (SNCF), a French public undertaking which issued bonds with a value of EUR 2 billion in October 2020.
62 Fifth, the Commission should, under the Temporary Framework, have examined whether LOT was able to access any kind of affordable financing and not whether or not it could obtain 'easy access', as stated in the contested decision, to alternative financing options.
63 Sixth, the Commission did not take into account the fact that PGL's 2019 financial statements indicated that LOT had PLN 1.2 billion available to it to meet its liquidity needs and, consequently, it also failed to state adequate reasons for the contested decision.
64 The Commission, supported by the Republic of Poland and LOT, contests the arguments made by the applicants.
65 Point 49(c) of the Temporary Framework states that in order for a beneficiary to be eligible for a recapitalisation measure, it must be unable to find financing on the markets at affordable terms and the horizontal measures existing in the Member State concerned to cover liquidity needs should be insufficient to ensure its viability.
66 It is apparent from paragraphs 15, 16, 105 and 106 of the contested decision that the Commission concluded that that condition was satisfied on the ground, inter alia, that LOT, not being a listed company and at that time experiencing high operating losses that were weakening its equity and liquidity position, would be unlikely to get easy access to debt or equity markets at affordable terms and in the time frame needed to avoid a likely insolvency. In addition, the Commission took account of the fact that the Republic of Poland had explained, first, that LOT was unable to find financing from Polish banks in the absence of State intervention and, second, that it had adopted a horizontal State aid programme to counteract the negative consequences of the COVID-19 outbreak for large enterprises, but that the amount of aid needed by LOT exceeded the maximum ceilings of aid per beneficiary available to large undertakings under that programme.
67 In that regard, it must be stated, as a preliminary point, that the question of whether LOT was unable to obtain financing on the markets at affordable terms involves complex economic assessments relating to the beneficiary's overall financial situation and the functioning of the financial markets, with the result that the review conducted by the Courts of the European Union of that type of assessment is limited. In addition, in accordance with the case-law referred to in paragraph 15 above, the Courts of the European Union must establish not only whether the evidence relied on is factually accurate, reliable and consistent, but also whether that evidence contains all the relevant information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it.
68 First, it is evident from paragraph 66 above that, contrary to what the applicants claim, the Commission conducted its own analysis by evaluating the evidence submitted by the Polish authorities, considering it to be reliable and relevant for the examination of the eligibility condition laid down in point 49(c) of the Temporary Framework.
69 Second, contrary to what the applicants claim, the Commission did indeed explain in the contested decision that LOT had serious solvency problems caused by the restrictions imposed by various countries in the COVID-19 pandemic. In that regard, reference should be made to paragraphs 31 and 32 above and to paragraph 12 of that decision, which states that LOT had experienced a significant decline in demand which had led to the high operating losses to which the Commission refers in paragraph 105 of the decision.
70 Third, as regards the applicants' argument that the Commission did not analyse whether LOT had collateral available to it, such as its slots or aircraft, it must be stated that there was no indication that LOT had assets that it could use as collateral for financing on the markets. It is apparent from paragraphs 13 and 125 of the contested decision that LOT worked with operating leasing agreements, which it had renegotiated in order to reduce its cash outflow and that, consequently, as it confirmed at the hearing, it did not own aircraft or any potential spare parts that could be used to obtain financing. Nor is it apparent from the file that the Commission's attention was drawn to specific and adequate assets in the possession of LOT which could serve as collateral to protect claims in the event of failure. In addition, it must be stated that the assertion that LOT's slots could be pledged in order to be able to raise funds on the market is not sufficiently substantiated. The applicants' argument in that regard must therefore be rejected.
71 Fourth, as regards the applicants' arguments that the Commission could not infer from the provision of national law on banks that LOT did not have access to alternative financing solutions, it should be observed that, as is apparent from paragraph 15 of the contested decision, Article 70(1) of the Ustawa prawo bankowe (Polish Banking Law) of 29 August 1997 (Dz. U. of 1997, No 140, position 939) states that a bank is to decide whether to grant a loan based on the borrower's creditworthiness, where creditworthiness is understood as 'the capacity to repay the loan taken, together with interest, at the dates specified in the agreement'. Article 70(2) nevertheless permits a bank to grant a loan to an undertaking which is not considered creditworthy provided that there is adequate collateral for the loan and a recovery plan is put in place to enable the undertaking to become creditworthy again within a given period of time.
72 In the light of those rules, LOT's poor situation, the lack of assets that could provide collateral and the amount of aid that LOT needed (approximately EUR 650 million in total, including the subsidised loan), the Commission could in all logic find, in paragraph 105 of the contested decision, that LOT was unable to find financing from Polish banks in the absence of intervention by the Polish State.
73 The same applies to financing by international or European banks or by other non-Polish financial institutions. Financing on the markets was all the more difficult to obtain because the exceptional circumstances linked to the COVID-19 pandemic had had the inevitable consequence of causing the investment climate in the aviation sector to deteriorate.
74 Fifth, the applicants' claims that the Commission failed to examine alternatives to debt, such as the acquisition of shares by investors other than the Polish State, are unsubstantiated and must therefore be rejected.
75 Sixth, the fact that other airlines obtained financing on the market or took up the possibility of raising funds in an innovative manner, even if it were established, does not call into question the Commission's reasoning, given that the applicants have not established that those other airlines were in a comparable financial situation to that of the beneficiary of the measure at issue.
76 Seventh, as regards the applicants' argument that the Commission did not take into account the fact that PGL's 2019 financial statements indicated that LOT had PLN 1.2 billion at its disposal to meet its liquidity needs, it is apparent from the application that that figure relates to 2018. Consequently, it does not take into consideration the impact of the COVID-19 pandemic on LOT's liquidity and its ability to access financing on the markets at the time when the contested decision was adopted in December 2020, in the context of the uncertainty linked to the development of the pandemic and its impact on air traffic.
77 Eighth, as regards the applicants' argument that the Commission should have taken into account the positive effect of LOT being 100% publicly owned on its repayment capacity, since public ownership often allows for a higher credit rating, it should be observed that, first, the applicants do not provide any specific information regarding LOT's credit rating at the time when the contested decision was adopted. Second, Member States may not intervene in support of a public undertaking if that intervention does not correspond to market conditions, failing which it may, as relevant, be regarded as State aid.
78 As regards the examples referred to by the applicants of financing via the issuance of bonds in 2011 by the railway company Polskie Koleje Panstwowe Spólka Akcyjna (PKP) and the operator of the Polish gas transmission network Gaz-System, it must be stated that the circumstances in which those transactions were carried out are not comparable to those of the present case since LOT was facing difficulties owing to the COVID-19 pandemic. Consequently, any comparison with the situation that LOT was in at the time when the contested decision was adopted is irrelevant. The applicants also cite the case of SNCF, which issued bonds valued at EUR 2 billion in October 2020. However, they fail to explain how that case is a relevant reference for assessing the capacity of an air carrier to find financing at affordable terms on the markets inasmuch as it is situated on a different geographic and product market.
79 It follows from the foregoing that the Commission did not commit a manifest error in finding in the contested decision that LOT was unable to find financing on the markets at affordable terms and, therefore, that the condition set out in point 49(c) of the Temporary Framework was met.
80 In the light of the foregoing observations, the present complaint and the argument referred to in paragraph 35 above must be rejected.
(e) The fifth complaint, concerning whether LOT was an undertaking in difficulty
81 According to the applicants, LOT was in difficulty before the COVID-19 crisis and the Commission made a manifest error of assessment in finding, solely on the basis of a statement by the Polish authorities, that LOT was not an undertaking in financial difficulty on 31 December 2019. The Commission failed to examine that question and did not properly provide reasons for the contested decision.
82 The Commission, supported by LOT, disputes the applicants' arguments.
83 It should first of all be observed that aid measures are granted under the Temporary Framework only to undertakings that were not in difficulty on 31 December 2019, in accordance with point 49(d) thereof. According to that provision, the concept of an 'undertaking in difficulty' must correspond to Article 2(18) of Commission Regulation (EU) No 651/2014 of 17 June 2014 declaring certain categories of aid compatible with the internal market in application of Articles 107 and 108 of the Treaty (OJ 2014 L 187, p. 1; 'the GBER').
84 It is apparent from paragraphs 32, 95 and 107 of the contested decision that the Commission did indeed verify, on the basis of the information provided by the Polish authorities, that LOT and its subsidiaries were not considered on 31 December 2019 as being 'undertakings in difficulty' for the purposes of Article 2(18) of the GBER.
85 The applicants refer to factors which, in their view, cast doubt on LOT's financial health and which, therefore, should have led the Commission, instead of simply relying on the information provided by the Republic of Poland, to investigate LOT's financial difficulties further in the light of Article 2(18) of the GBER.
86 Nevertheless, it must be stated that none of the evidence put forward by the applicants in the application, even if it were proven, serves to establish that LOT met one of the conditions set out in Article 2(18) of the GBER.
87 As regards, in particular, the condition laid down in Article 2(18)(d) of the GBER, it provides that an undertaking may be classified as an undertaking in difficulty where it has received rescue aid and has not yet reimbursed the loan or terminated the guarantee, or has received restructuring aid and is still subject to a restructuring plan. In that regard, it should be observed that while LOT did in fact receive restructuring aid in 2014, it is apparent from its statement in intervention that it was no longer subject to a restructuring plan on 31 December 2019. As regards the rescue aid which it had also received in 2013, it must be observed that the applicants have not shown that the loan had not yet been reimbursed by 31 December 2019.
88 As regards the applicants' argument that the Commission should also have assessed whether internal transactions within the PGL group, in particular with LOT Aircraft Maintenance Services, which is an important supplier of services, might have artificially inflated LOT's financial situation in order to avoid it being considered as being in difficulty, that argument is neither expanded upon nor substantiated.
89 The Commission therefore did not make a manifest error in finding, on the basis of the information provided by the Republic of Poland, that LOT was not an undertaking in difficulty on 31 December 2019, within the meaning of Article 2(18) of the GBER. Moreover, contrary to what the applicants claim, the Commission did not infringe its obligation to state reasons in that regard since it provided sufficient reasons for its finding, in particular in the light of the applicable case-law (see, to that effect, judgments of 27 October 2011, Austria v Scheucher-Fleisch and Others, C‑47/10 P, EU:C:2011:698, paragraph 111, and of 2 September 2021, Commission v Tempus Energy and Tempus Energy Technology, C‑57/19 P, EU:C:2021:663, paragraph 199 and the case-law cited).
90 Consequently, this complaint must be rejected and, accordingly, the first part of the first plea in law must be rejected in its entirety.
2. The second part, alleging a failure to assess whether there were other measures that were more appropriate and less distortive to competition than the recapitalisation of LOT
91 The applicants complain that the Commission infringed point 53 of the Temporary Framework. First, the Commission did not review the condition concerning the appropriateness of the recapitalisation measures. Second, it failed to examine whether the selected recapitalisation instrument would be the least distortive to competition.
92 The Commission, supported by the Republic of Poland, contests the applicants' arguments.
93 The types of recapitalisation measure listed in Section 3.11.3 of the Temporary Framework are divided over two points. Point 52 lists the recapitalisation measures that the Member States may adopt during the COVID-19 pandemic, namely equity instruments, in particular the issuance of new common or preferred shares, and instruments with an equity component (referred to as 'hybrid capital instruments'), in particular profit participation rights, silent participations and convertible secured or unsecured bonds.
94 Point 53 of the Temporary Framework states as follows:
'The State intervention can take the form of any variation of [those] instruments, or a combination of equity and hybrid capital instruments. … The Member State must ensure that the selected recapitalisation instruments and the conditions attached thereto are appropriate to address the beneficiary's recapitalisation needs, while at the same time being the least distortive to competition.'
95 The Commission described the recapitalisation measure at issue in paragraphs 110 to 113 of the contested decision, explaining that the measure consisted of equity of EUR 250 million paid by the Republic of Poland to LOT against the issuance by the beneficiary of new common shares. In paragraph 123 of the decision the Commission found that the recapitalisation of LOT did not go beyond restoring the capital structure of the beneficiary to that before the COVID-19 outbreak. Lastly, it is apparent from paragraph 132 of that decision that the Commission found that the recapitalisation did not exceed the minimum required to ensure the viability of LOT and ensure its access to private capital markets.
96 In the present case, it must be stated, as the Commission has done, that a recapitalisation measure and the conditions attached thereto may be regarded as being the most appropriate to address the recapitalisation needs of the beneficiary concerned, while being the least distortive to competition, in terms of point 53 of the Temporary Framework, as long as they meet the various requirements laid down for that purpose in that framework, and which relate to the amount of the recapitalisation, the remuneration and exit of the State, governance and the prevention of undue distortions to competition, and to the exit strategy of the State from the participation resulting from the recapitalisation. The reference in that point to the 'conditions attached [to the measure at issue]' refers to requirements, such as those mentioned in the previous sentence, whose very purpose is to ensure that the measure at issue and the conditions attached thereto do not exceed what is appropriate to address the recapitalisation needs of the beneficiary concerned, while being the least distortive to competition. Therefore, if the abovementioned requirements are satisfied, the recapitalisation instrument chosen must be regarded as complying with that point.
97 Accordingly, to the extent that the applicants, by the present part, question whether certain of the requirements referred to in paragraph 96 above have been complied with, concerning the amount of the recapitalisation, the remuneration and exit of the State, as well as governance and the prevention of undue distortions of competition, that part has no independent content in relation to the third to fifth parts of the first plea. The merits of this complaint are therefore dependent on the analysis of those other parts of the plea, which are examined below.
98 In so far as the applicants' line of argument may also be understood as criticising the Commission for having failed to examine whether another type of aid measure than recapitalisation would have been more appropriate and less likely to give rise to distortions to competition, it must be held that that line of argument is too general and abstract. The applicants have merely referred in their written pleadings to 'other more appropriate and less distortive measures', without, however, providing any explanation in this part of the plea as to what exactly those other instruments would be and why they would be more appropriate and less distortive to competition than the measure notified.
99 In addition, according to the case-law, the Commission is not required to take a decision on every possible alternative measure. It is not required to prove positively that no other conceivable aid measure, which by definition would be hypothetical, would be more appropriate and less distortive to competition (see, to that effect and by analogy, judgment of 6 May 2019, Scor v Commission, T‑135/17, not published, EU:T:2019:287, paragraph 94 and the case-law cited).
100 It is true, as the applicants state, that according to the case-law, when there is a choice between several appropriate measures, recourse must be had to the least onerous and the disadvantages caused must not be disproportionate to the aims pursued (see judgment of 22 January 2013, Sky Österreich, C‑283/11, EU:C:2013:28, paragraph 50 and the case-law cited). However, there is nothing in the present case to indicate that the Commission was faced with a choice between several appropriate measures, as set out in that case-law.
101 Consequently, the argument that the applicants seem to be making, and which is summarised in paragraph 98 above, must be rejected.
3. The third part of the first plea, concerning the proportionality of the amount of the recapitalisation
102 The applicants in essence raise two complaints concerning the proportionality of the amount of the recapitalisation, related, first, to the interpretation of point 54 of the Temporary Framework and, second, to the application of that point to the present case.
(a) The first complaint, concerning the interpretation of point 54 of the Temporary Framework
103 The applicants complain that the Commission equated the concept of the 'viability' of the beneficiary, within the meaning of point 54 of the Temporary Framework, with that of its access to the capital markets and to have exclusively focused on debt and equity indicators. They argue that that allowed the Commission and the Republic of Poland to avoid any realistic assessment of LOT's return to profitability and to eschew any discussion of internal measures to be adopted by LOT to return to viability. Referring to the Communication of the Commission on the return to viability and the assessment of restructuring measures in the financial sector in the current crisis under the State aid rules (OJ 2009 C 195, p. 9), the Communication of the Commission on the Temporary Union framework for State aid measures to support access to finance in the current financial and economic crisis (OJ 2011 C 6, p. 5) (together, 'the communications applicable in the context of the economic and financial crisis'), and also to the Guidelines on State aid for rescuing and restructuring non-financial undertakings in difficulty (OJ 2014 C 249, p. 1) ('the Guidelines on aid for rescuing and restructuring'), they argue that the Commission should have considered a range of financial metrics (in particular regarding profits or net income) over time to evaluate whether LOT could return to viability following the aid, that the Commission's sensitivity tests on LOT's financial projections were insufficient, and that it should have undertaken a wide range of 'stress tests' on those projections by considering a number of possible downside scenarios as regards LOT's potential return to viability.
104 In the reply, the applicants add that the Commission has always considered the restoration of long-term viability as an essential objective of recapitalisation measures, and equated such viability with sound profitability prospects. In the present case, the Commission did not consider itself obliged to verify the conditions for the company to return to profitability without State support. It thus considered that the concept of viability was not synonymous with profitability, and that the sole objective of the Temporary Framework was to allow a beneficiary to re-establish its creditworthiness and ability to find financing on the markets at affordable terms.
105 In any event, the Commission, in the contested decision, redacted the date by which the net debt-to-equity ratio was expected to recover, which, according to the applicants, would not take place in the coming years. Consequently, the Commission should have concluded that the aid at issue might not be the appropriate solution in the absence of other internal downsizing measures.
106 The Commission, supported by the Republic of Poland and LOT, contests the arguments put forward by the applicants.
107 Point 54 of the Temporary Framework states that in order to ensure the proportionality of the aid, the amount of the COVID-19 recapitalisation must not exceed the minimum needed to ensure the viability of the beneficiary concerned, and should not go beyond restoring the capital structure of the beneficiary to that pre-dating the COVID-19 outbreak, namely the situation on 31 December 2019.
108 The applicants and the Commission disagree as to whether the Commission, in determining whether the measure at issue does not exceed the minimum needed to ensure the 'viability' of the beneficiary, must assess whether that measure enables the beneficiary to return to profitability.
109 In that regard, first of all, it should be observed that point 54 of the Temporary Framework does not make any reference to the profitability of the beneficiary concerned.
110 Furthermore, several parts of the Temporary Framework show that the principal objective of the planned aid measures is, in essence, to ensure that the beneficiaries concerned are able to cover their liquidity needs in order to allow operational continuity during and after the COVID-19 pandemic. Accordingly, point 9 of the framework states that well-targeted public support is needed 'to ensure that sufficient liquidity remains available in the markets' and 'to preserve the continuity of economic activity during and after the COVID-19 outbreak'. Similarly, according to point 11, the framework 'sets out the possibilities Member States have under EU rules to ensure liquidity and access to finance for undertakings … that face a sudden shortage in this period in order to allow them to recover from the current situation'. In turn, point 18 of the framework provides 'that State aid is justified … for a limited period, to remedy the liquidity shortage faced by undertakings and ensure that the disruptions caused by the COVID-19 outbreak do not undermine their viability'.
111 The Temporary Framework is thus not intended to restore 'a positive return' for the beneficiary or its profitability, or to ensure that it becomes profitable as a result of the aid, but merely to guarantee its operational continuity during and after the COVID-19 pandemic, in particular by re-establishing the capital structure that existed before the outbreak of the pandemic.
112 Consequently, point 54 of the Temporary Framework must be interpreted as meaning that the amount of recapitalisation must be restricted to the minimum needed to ensure that the beneficiary remains operational during and after the COVID-19 pandemic, while restoring the capital structure that it had before that pandemic, that is to say, that corresponding to the situation on 31 December 2019.
113 That finding is not called into question by the arguments put forward by the applicants based on an analogy with the Guidelines on aid for rescuing and restructuring or the communications applicable in the context of the economic and financial crisis. Such an analogy is in fact groundless.
114 First, an analogy with the communications applicable in the context of the economic and financial crisis is not appropriate since that crisis was caused, at least in part, by the excessive risks that were taken by various financial institutions, whereas the COVID-19 pandemic was a health crisis.
115 Second, it is also necessary to reject an analogy with the Guidelines on aid for rescuing and restructuring, by which the applicants seek to oblige the Commission to ascertain in particular whether the beneficiary has adopted internal measures intended to terminate structurally loss-making operations. The objective of State support in the context of State aid for rescuing and restructuring is to remedy previously existing internal difficulties affecting the beneficiary concerned, which is generally an 'undertaking in difficulty'. By contrast, a beneficiary of recapitalisation aid in the context of the COVID-19 pandemic has not played any role in the events undermining its viability and will therefore not necessarily need to restructure in order to overcome the temporary difficulties caused by the COVID-19 pandemic.
116 Lastly, as regards the applicants' arguments concerning the potential for LOT to return to viability, it must be observed, as the Commission has done, that point 54 of the Temporary Framework does not lay down a minimum threshold for the amount of the recapitalisation measure that is needed to ensure the viability of the beneficiary, but only a maximum limit (see, to that effect, judgment of 18 October 2023, Ryanair v Commission (Brussels Airlines; COVID-19), T‑14/21, not published, EU:T:2023:643, paragraph 127).
117 Consequently, this complaint must be rejected.
(b) The second complaint, relating to the application of point 54 of the Temporary Framework to the case at hand
118 According to the applicants, the Commission made a number of manifest errors of assessment regarding the calculation of the amount of aid needed to ensure the viability of LOT, which received more aid than it needed to survive in the short term.
119 The Commission, supported by the Republic of Poland and LOT, contests the arguments put forward by the applicants.
120 In paragraphs 120 to 123 of the contested decision, in the first place, the Commission assessed whether the public support did not go beyond restoring LOT's capital structure and concluded that that was not the case, since LOT's net debt-to-equity ratio on 31 December 2021 was expected to be worse than on 31 December 2019.
121 In the second place, in paragraph 124 of the contested decision, the Commission, in assessing whether the public support was limited to the minimum needed to ensure LOT's viability, first of all found that according to LOT's financial projections, in the absence of a State recapitalisation and liquidity measure, LOT would have consumed its available liquidity by December 2020, namely at the time when the decision was adopted. It stated in the same paragraph that the measures at issue prevented LOT from running out of liquidity and, according to the forecasts, resulted in LOT having a positive cash position on 31 December 2021.
122 Next, in paragraphs 125 to 132 of the contested decision, the Commission carried out three 'viability tests'. The first test consisted in comparing LOT's forecasted net debt-to-equity ratio, taking the recapitalisation into account, with the same ratio of a sample of peer airlines on 31 December 2019. The Commission concluded from that test, among other things, that, taking the recapitalisation measure into account, LOT's expected net debt-to-equity ratio on 31 December 2021 would be well above the third quartile of the ratio of the airlines in the sample on 31 December 2019. The second and third tests consisted in assessing whether and in which fiscal year LOT's ratio of net debt-to-EBITDA (earnings before interest, tax, depreciation and amortisation) was expected to fall below the threshold of between 3 and 3.5, and in comparing LOT's forecasted equity-to-asset ratio, taking the recapitalisation into account, with the 15% threshold. In the light of those three tests, the results of which were consistent, the Commission concluded that the recapitalisation did not exceed the minimum required to ensure LOT's viability and its access to private capital markets.
123 In the third place, in paragraphs 133 and 134 of the contested decision, the Commission further assessed the proportionality of the recapitalisation in favour of LOT under a sensitivity analysis, concluding that the recapitalisation would still be proportionate even if LOT were to expect lower losses.
(1) The connectivity of the CEE countries
124 The applicants' argument, according to which the amount of aid authorised by the Commission, as based on LOT's allegedly systemic contribution to the connectivity of the CEE countries, should have been lower since LOT's activities contributing to that connectivity represented only a fraction of its total activities, is irrelevant. It is apparent in particular from paragraphs 2 and 85 of the contested decision that the objective of the measures at issue was to restore LOT's balance sheet and liquidity situation, relieve its cash flow needs and restore its viability at a time when the COVID-19 outbreak was disrupting the normal functioning of the markets and affecting the whole economy, giving rise to serious consequences for the real economy of the Member States. The objective of the measures at issue, as made clear in that decision, was therefore not to preserve LOT's activities contributing to that connectivity.
125 In any event, as stated in particular in paragraph 45 above, although it is apparent from paragraphs 37, 38, 39, 43 and 89 of the contested decision that LOT played an important role in the connectivity of the CEE countries, it is clear from paragraphs 37 to 44 and 104 of that decision that that was not the only reason which led the Commission to find that LOT was of systemic importance and that, therefore, there was a common interest in granting it aid, within the meaning of point 49(b) of the Temporary Framework.
126 The present argument must therefore be rejected.
(2) The credit rating necessary for access to the financial markets
127 As regards the applicants' argument that the Commission used an inappropriate benchmark, namely an 'investment grade' credit rating, as the minimum necessary to enable an undertaking to access market financing (a 'BBB' rating), it should be observed that the Commission stated in paragraph 127 of the contested decision that a conservative approach was to compare LOT's forecasted net debt-to-equity ratio with that of comparable airlines since the rated airlines had a credit rating below or very close to the 'investment grade' threshold, namely 'BBB', which is normally considered as the minimum rating that allows a company easily to get access to market financing. In paragraph 128 of that decision it explained that LOT's expected net debt-to-equity ratio on 31 December 2021 remained higher than the highest ratio among the rated peer airlines which had received an 'investment grade' rating. It stated in paragraph 130 of the decision that LOT's net debt-to-EBITDA ratio, calculated in accordance with International Financial Reporting Standards (IFRS), would not fall below the threshold of 3 to 3.5, usually used by rating agencies to determine the creditworthiness of companies, in the time horizon considered in the business model. In paragraph 131 of the decision the Commission stated that LOT's forecasted equity-to-asset ratio would not exceed a threshold of between 10% and 20% during that same time horizon. On the basis of those three ratios, it concluded in paragraph 132 of the contested decision that the recapitalisation did not exceed the minimum required to ensure the viability of LOT and ensure its access to private capital markets at a later, redacted, date.
128 The applicants submit that the Commission used an inappropriate benchmark, namely an 'investment grade' credit rating, as the minimum necessary to enable an undertaking to access market financing (a rating of 'BBB'), whereas airlines are typically able to access capital markets with lower ratings; they argue that the average airline credit rating before COVID-19 pandemic was 'Ba2', namely 'two notches below investment grade'. The aid was therefore not limited to the minimum necessary.
129 In that regard, it is apparent from the document in Annex C.1 to the reply that a 'BBB' credit rating is higher than that which investors usually require for airlines to be able to raise financing on capital markets. The Commission does not dispute the fact that a lower credit rating is sufficient to enable airlines to obtain market financing. However, it submits that it did not make a manifest error of assessment in using the 'BBB' credit rating as the benchmark since such a rating would enable the beneficiary concerned to find financing on the markets at affordable terms. In that regard, it should be borne in mind that, according to point 49(c) of the Temporary Framework, an undertaking is eligible for a recapitalisation measure only if it 'is not able to find financing on the markets at affordable terms'. It thus follows, implicitly but necessarily, that such a measure must be limited to the minimum needed to enable the undertaking to obtain financing on the markets at affordable terms. The applicants do not dispute the fact that a 'BBB' credit rating permits financing at affordable terms.
130 Furthermore and in any event, as observed in paragraphs 122 and 127 above, it is apparent from the Commission's analysis in paragraph 128 of the contested decision that LOT's expected net debt-to-equity ratio on 31 December 2021, after the recapitalisation measure, would remain worse, that is to say, significantly higher than the third quartile of the ratio of the airlines included in the sample on 31 December 2019 and also higher than the highest ratio among the peer airlines rated at 'investment grade', which proves that the Commission's approach was conservative.
131 Accordingly, the present complaint must be rejected as unfounded.
(3) LOT's ability to raise funds on the financial markets
132 As regards the applicants' argument that the Commission did not assess whether LOT was able to raise funds on the capital markets, it is sufficient to note that that argument has no content of its own. It overlaps with the argument that airlines with a credit rating below BBB also have access to the capital markets and also with the fourth complaint of the first part of the first plea.
133 Accordingly, the present argument must be rejected for the same reasons as those set out in paragraphs 65 to 80 and 127 to 131 above.
(4) Insufficient analysis of LOT's financial projections
134 The applicants argue that the Commission did not undertake a sufficient analysis of LOT's financial projections to assess the proportionality of the aid, for example, to what extent LOT could lower its cost base in the short or medium term, or the impact of alternative projections for airline traffic and its recovery after the COVID-19 pandemic.
135 However, as is apparent from paragraph 115 above, the Temporary Framework does not seek, at the time of granting the aid, to oblige the beneficiary to reduce its costs or to carry out a restructuring. A beneficiary of recapitalisation aid in the context of the COVID-19 pandemic has not played any role in the events undermining its viability and will therefore not necessarily need to restructure in order to overcome its temporary difficulties caused by the pandemic (see, to that effect, judgment of 10 May 2023, Ryanair and Condor Flugdienst v Commission (Lufthansa; COVID-19), T‑34/21 and T‑87/21, under appeal, EU:T:2023:248, paragraphs 161 and 192).
136 Furthermore, as regards the applicants' argument that the Commission did not analyse the impact of alternative projections and assumptions concerning the recovery of traffic after the COVID-19 pandemic, a key driver of LOT's profitability, it should be observed that, as has also been noted in paragraph 111 above, the objective of the Temporary Framework is not to restore the beneficiary's profitability or to ensure that it becomes profitable as a result of the aid, but only to enable its operational continuity during and after the COVID-19 crisis by restoring, in particular, the capital structure as it stood before that pandemic.
137 Consequently, the present argument must be rejected.
(5) The sensitivity tests
138 The applicants claim that the sensitivity tests carried out by the Commission on LOT's financial projections are insufficient. They submit that the Commission was required to carry out a wide range of 'stress tests' on those projections, taking various downside scenarios into account with regard to LOT's potential to return to viability.
139 Nevertheless, it must be held that this argument is not substantiated and must therefore be rejected. The applicants do not criticise the sensitivity tests carried out by the Commission on LOT's financial projections per se, but merely assert that they are 'insufficient' and that it should have carried out a wide range of 'stress tests' on those projections, taking various downside scenarios into account with regard to LOT's potential to return to viability.
(6) Consideration of earlier State aid
140 According to the applicants, the Commission failed to take into account other aid received by LOT as well as aid received by the PGL group and the companies in the PGL group other than LOT.
141 In the first place, it is apparent from paragraphs 69 and 70 of the contested decision that, first, the Commission took into consideration the aid granted by the Kingdom of Denmark and the Republic of Slovenia when assessing the proportionality of the recapitalisation, in accordance with point 54 of the Temporary Framework.
142 Second, as regards the LOTDoDomu programme, which was intended to provide support for repatriation flights, the Commission has stated, in the defence, that LOT's financial projections submitted by the Polish authorities and used by the Commission for the proportionality assessment took into account the amounts of compensation granted to LOT under that programme. Furthermore, in paragraph 70 of the contested decision, the Commission stated that it would also take into account in its decision the aid that could be granted to LOT in addition to that it had already received under the schemes referred to in paragraph 69 of that decision. It must be thus inferred that any aid granted to LOT under the LOTDoDomu programme was in fact also taken into account by the Commission when assessing the proportionality of the recapitalisation.
143 In the second place, as regards consideration of other aid measures allegedly granted by the Republic of Poland to LOT, the PGL group and to PGL group companies other than LOT, reference should be made to paragraph 25 above.
144 In the light of the foregoing, the present argument must be rejected.
145 Accordingly, the third part of the first plea must be rejected.
4. The fourth part of the first plea, concerning the valuation of LOT's equity in the context of the remuneration and exit of the State
146 The applicants submit that the Commission does not provide any details in the contested decision to enable any assessment of whether any of the three methods used by the Polish authorities to value LOT's equity in order to determine the purchase price of its shares were undertaken appropriately.
147 As regards the first method, based on the present value of expected cash flows accruing to shareholders, the applicants claim that the Commission should have examined the robustness and appropriateness of the various components of the business plan and various factors (such as the estimation of the risk-free rate, the equity risk premium and the equity beta), which relate to the cost of equity discount rate used by the Republic of Poland. As regards the second method, based on the company's adjusted net asset value (namely the book value of assets minus liabilities, adjusted for differences between market and book values), the Commission does not state how that adjustment was carried out. As regards the third method, which consists of a valuation based on a multiple of LOT's EBITDA, based on multiples observed for comparable listed companies, the Commission does not explain how it selected those companies, their comparability to LOT, or how a point-estimate was chosen from the range of estimates obtained from the comparators. Moreover, it did not assess whether (and to what extent) the multiples of the listed comparators had been distorted by the impact of the COVID-19 pandemic.
148 The applicants also argue that determining the purchase price as the average of the share prices resulting from the three different methods is not appropriate. The Commission should have assessed the robustness and merits of each of the three methods, and given its opinion on the appropriate approach (and point-estimate) to be used.
149 Accordingly, the applicants submit that each of the three methods should have been explained and examined in detail and that the Commission should have examined their robustness and merits and ruled on the appropriate approach to be used. By failing to investigate those factors, the contested decision is vitiated by a manifest error of assessment and a failure to state reasons.
150 The Commission, supported by the Republic of Poland and LOT, contests the arguments put forward by the applicants.
151 In paragraphs 141 to 143 of the contested decision, the Commission explained that the Republic of Poland had determined the purchase price of LOT's shares by means of a valuation of LOT's equity given that it was not a listed company. More specifically, that price was determined as the average of the share price resulting from the three methods at issue.
152 The Commission stated, in paragraph 142 of the contested decision, that the first method determined the value of LOT's shares as the present value of the expected cash flows accruing to shareholders, that is to say, the cash flows generated by the operation of the company net of debt inflows and outflows and interest costs. The second method, the adjusted net asset method, determined LOT's equity value as the difference between the book value of its assets and liabilities on 31 August 2020 (pro forma balance sheet), adjusted for differences between market and book values. The third method, the multiplier method, determined the value of LOT's equity as the product of its EBITDA and the enterprise value to EBITDA ratio of similar listed companies, net of LOT's net debt.
153 According to paragraph 143 of the contested decision, the Commission considered that it was a reasonable approach to combine the three methods at issue in order to value LOT's equity, in particular considering the uncertainties surrounding company valuations. In that regard, it stated that the discounted free cash flow to equity method used by the Polish authorities was based on the financial projections referred to in paragraph 102 of that decision, which were in line with industry forecasts. In addition, it is apparent from paragraph 143 of that decision that the Commission considered that the cost of equity, which is the discount rate to calculate the present value of cash flows to shareholders, included a set of risk premiums, such as a size risk premium and a specific risk premium for the aviation sector, which makes the valuation of LOT conservative. The valuations resulting from the discounted free cash flow to equity and multiplier methods were both discounted to take into account the low liquidity of LOT's shares.
154 In that regard, it should be stated, as observed in paragraph 143 of the contested decision, that the Commission was conservative in using the adjusted net asset value method in so far as that method, unlike the other two, does not take into account the income-generating capacity of the company.
155 It must therefore be held that the approach adopted by the Commission in the present case was robust and consistent and made it possible, in particular, to take into consideration the uncertainties inherent in the valuation of undertakings.
156 As regards, next, the applicants' complaint that the Commission failed to provide any details to enable an assessment of whether the valuation of LOT's equity was appropriate, it must be borne in mind that, as regards the economic and accounting concepts used by the latter and the components of the financial calculations made, it cannot be disputed that they relate to complex technical appraisals. Since the contested decision clearly disclosed the Commission's reasoning, enabling the substance of that decision to be challenged subsequently before the competent court, it would be excessive to require a specific statement of reasons for each of the technical choices or each of the figures on which that reasoning is based (see, to that effect, judgment of 1 July 2008, Chronopost and La Poste v UFEX and Others, C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraph 108).
157 In the present case, it must be found that Section 3.3.4.1 of the contested decision clearly shows the approach and choices adopted by the Commission. Consequently, the Commission was not required, in accordance with the case-law referred to in paragraph 156 above, to give specific and exhaustive reasons for the choice and application of each of the methods used or for their combination for the purpose of valuing LOT's equity. The contested decision therefore does not suffer from a failure to state reasons in that regard.
158 The fourth part of the first plea must therefore be rejected.
5. The fifth part of the first plea, concerning governance and the prevention of undue distortions of competition
159 The applicants submit, in the first place, that because the Commission stated in the contested decision that LOT intended to return to its standard volume of activity, it had authorised aggressive expansion by the beneficiary, contrary to point 71 of the Temporary Framework. In any event, that decision is vitiated by a failure to state reasons in that regard. The applicants also assert that the Commission failed to take account of the fact that all the airlines which have not received aid have downsized due to the COVID-19 pandemic, enabling the beneficiary to capture market share at the expense of non-subsidised airlines. Moreover, they maintain that LOT has pursued an aggressive expansion as it launched several routes in 2021 to 'unusual' destinations.
160 In the second place, the applicants submit that the Commission infringed point 72 of the Temporary Framework. They argue that while the Commission states that the capital injection paid out in PLN will amount to EUR 250 million based on the exchange rate on the date on which the capital injection was granted, there is no guarantee that the amount in PLN will not be retroactively higher at the time of the compatibility assessment, namely on the date on which the contested decision was adopted. Moreover, they submit that the Commission unduly exempted LOT from any review of its competitive position, in so far as it failed to take into account the other COVID-19 aid measures for the calculation of the limit of EUR 250 million. They also raise a plea of illegality with respect to point 72 of the Temporary Framework, pursuant to Article 277 TFEU, since that point, inter alia, applies a similar treatment to dissimilar situations in that it does not take into account the fact that the smaller the company, the more distortive is a EUR 250 million recapitalisation.
161 The Commission, supported by the Republic of Poland and LOT, contests the arguments put forward by the applicants.
(a) Compliance with point 71 of the Temporary Framework
162 Point 71 of the Temporary Framework states that in order to prevent undue distortions of competition, the beneficiaries concerned must not engage in aggressive commercial expansion financed by State aid or made possible by taking excessive risks. As a general principle, the smaller the equity stake of the Member State and the higher the remuneration, the less there is a need for safeguards.
163 The Commission stated in paragraph 148 of the contested decision that LOT's business plan showed that the company was preparing a prudent and progressive return to its standard volume of activity. In paragraphs 55 and 56 of that decision, it also noted that the Republic of Poland would make the aid conditional on observance of the governance and competition elements of Section 3.11.6 of the Temporary Framework and, in particular, the condition that LOT would not engage in aggressive commercial expansion financed by the aid or take excessive risks.
164 In that regard, in the first place, it should be observed that, according to the case-law cited in paragraph 89 above, as regards a decision not to raise objections under Article 108(3) TFEU, even a succinct statement of reasons for that decision must be regarded as sufficient in the light of the requirement to state reasons laid down in the second paragraph of Article 296 TFEU if it nevertheless discloses in a clear and unequivocal manner the reasons why the Commission considered that it was not faced with serious difficulties in assessing the compatibility of the aid concerned with the internal market. Moreover, even though the Commission is not obliged to adopt a position on all the arguments relied on before it, it is required to set out the facts and the legal considerations having decisive importance in the structure of the decision concerned (see judgment of 8 April 2014, ABN Amro Group v Commission, T‑319/11, EU:T:2014:186, paragraph 132 and the case-law cited).
165 In the present case, although succinct, the statement of reasons in the contested decision sets out sufficiently the factual and legal considerations that have decisive importance in the structure of that decision, for the purposes of the case-law cited in paragraph 164 above, with the result that the complaint alleging a failure to state reasons must be rejected.
166 In the second place, it must be stated that the Commission examined LOT's business plan in order to satisfy itself that LOT would not engage in aggressive commercial expansion. In that regard, the fact that the plan showed that that airline's objective was to make a prudent and progressive return to its 'standard' volume of activity that it had before the COVID-19 pandemic, namely before the recapitalisation at issue, does not demonstrate that it intended to engage in aggressive commercial expansion financed by the aid at issue or made possible by excessive risk-taking, in terms of point 71 of the Temporary Framework.
167 In addition, it should be borne in mind that point 74 of the Temporary Framework states that as long as at least 75% of the recapitalisation measures have not been redeemed, the beneficiary of the aid at issue is prevented from acquiring a stake of more than 10% in competitors or other operators in the same line of business, including upstream and downstream operations. It is not disputed that the beneficiary is subject to that condition, in accordance with what was stated in paragraph 151 of the contested decision, and that it is also intended to prevent the beneficiary from engaging in aggressive commercial expansion financed by the aid.
168 In addition, as regards the applicants' argument relating to the routes launched by LOT, it must be stated, as the Commission has done, that the number of routes operated by LOT in 2019, appearing in Annex A.3.2. to the application, and the number of routes launched in 2021, given in Annex A.3.10. to the application, are not evidence of purported aggressive commercial expansion by LOT. In order to prove that such expansion was taking place, the applicants should have indicated the extent to which the difference between all the routes operated by LOT in 2019 and at a later date revealed that aggressive commercial expansion. Furthermore, since those routes were launched, according to the applicants, at a date that was after the contested decision, it should be borne in mind that it is not possible to challenge the lawfulness of that decision on the basis of circumstances arising after the adoption thereof (see judgment of 18 October 2023, Ryanair v Commission (airBaltic; COVID-19), T‑737/20, not published, EU:T:2023:641, paragraph 175 and the case-law cited).
169 Accordingly, it must be found that the applicants have not shown that the Commission infringed point 71 of the Temporary Framework.
(b) Compliance with point 72 of the Temporary Framework
170 Point 72 of the Temporary Framework states that if the beneficiary of a COVID-19 recapitalisation measure above EUR 250 million is an undertaking with significant market power on at least one of the relevant markets in which it operates, Member States must propose additional measures to preserve effective competition in those markets. In proposing such measures, Member States may in particular offer structural or behavioural commitments, such as those set out in the Commission notice on remedies acceptable under Council Regulation (EC) No 139/2004 and under Commission Regulation (EC) No 802/2004 (OJ 2008 C 267, p.1).
171 In paragraph 149 of the contested decision, the Commission referred to the first part of point 72 of the Temporary Framework and stated that the measures at issue included a recapitalisation of EUR 250 million, converted into PLN on the basis of the exchange rate on the date of the granting of the recapitalisation aid to LOT and that, consequently, additional measures for the purposes of that point were not necessary.
172 In addition, in paragraph 51 of the contested decision, the Commission stated that the recapitalisation plan foresaw the issuing of common shares in the amount of EUR 250 million, converted into PLN on the basis of the exchange rate on the date of the granting of the recapitalisation aid, which corresponded to approximately [confidential] new shares at a subscription price of PLN [confidential] to the Republic of Poland. It also stated in footnote 24 of the decision that those figures were just an estimate since the Polish authorities had committed to determine the final amount of the recapitalisation aid in local currency on the basis of the exchange rate established on the date of granting the aid, when the final numbers would be adjusted. It added that the new shares would be issued in full by 30 September 2021.
173 It is thus apparent from a combined reading of paragraphs 51 and 149 of the contested decision that the Commission ensured that, on the date of granting the aid, the capital injection provided by the Polish authorities to LOT would not exceed EUR 250 million, namely the amount above which Member States are required, under point 72 of the Temporary Framework, to propose additional measures to preserve effective competition on the market.
174 Consequently, it must be held that in the present case the conditions for the application of point 72 of the Temporary Framework were not satisfied.
175 The other arguments put forward by the applicants do not serve to call that finding into question.
176 First, the applicants submit that since the Commission assessed compatibility on the basis of figures given in PLN, there was no guarantee that the capital injection in that currency would not retroactively be higher than EUR 250 million at the time of the compatibility assessment, namely on the day on which the contested decision was adopted, owing to fluctuations in exchange rates between the two currencies. They stated at the hearing that in order to avoid that possibility, the Commission should also have 'frozen', on the date of the assessment, the amount of the aid in PLN. In that regard, it should be observed, as the Commission has done, that as far as the issue of the exchange rate is concerned, a State aid measure must be assessed on the 'date of granting of the aid' and that that concept is also defined by Article 2(28) of the GBER as 'the date when the legal right to receive the aid is conferred on the beneficiary under the applicable national legal regime'. Moreover, it is in any event apparent that, as observed by the Republic of Poland on the basis of the average exchange rates applied by the Narodowy Bank Polski (National Bank of Poland), the eligible amount of the aid on the date of granting was less than on the date the contested decision was adopted.
178 Second, it is also necessary to reject the applicants' argument concerning the two other aid measures previously granted to LOT owing to the COVID-19 crisis and concerning the LOTDoDomu programme.
179 Indeed, it should be borne in mind that in order to determine whether a beneficiary meets the eligibility conditions for a recapitalisation measure set out in point 49 of the Temporary Framework, it is necessary to take into account its overall financial situation (judgment of 18 October 2023, Ryanair v European Commission (Brussels Airlines; COVID-19), T‑14/21, not published, EU:T:2023:643, paragraph 57). By contrast, as regards the points of that framework which concern specific and concrete aspects of a recapitalisation measure, such as its amount or its remuneration, compliance with those aspects can be assessed only in relation to the actual recapitalisation measure. That is the case, in particular, with point 72 of the Temporary Framework, the scope of which is expressly limited to recapitalisation measures of more than EUR 250 million (judgment of 18 October 2023, Ryanair v Commission (Brussels Airlines; COVID-19), T‑14/21, not published, EU:T:2023:643, paragraph 59).
180 Lastly, the applicants raise a subsidiary plea of illegality with respect to point 72 of the Temporary Framework, giving two reasons.
181 First, the applicants submit that point 72 of the Temporary Framework, which uses a threshold set in euros, does not take into account changes in exchange rates between the euro and the currencies of Member States outside the euro area.
182 In that regard, it should be observed, as the Commission has done, that when the latter institution applies point 72 of the Temporary Framework, it can ensure that when the beneficiary of a COVID-19 recapitalisation aid measure acquires the right to a recapitalisation, any aid exceeding EUR 250 million is only authorised if the beneficiary does not have significant market power on any relevant market on which it operates or if, where it has such a power, suitable competition remedies are put in place, irrespective of how the exchange rate between the euro and the currency of the Member State concerned varies. Consequently, that point is not vitiated by illegality since it may be applied in a manner that ensures proportionality and competition.
183 Second, the applicants submit that point 72 of the Temporary Framework is unlawful since the EUR 250 million threshold applies irrespective of the size of the beneficiary or, in other words, irrespective of the size of the recapitalisation amount in relation to the beneficiary's current level of equity and, more generally, in relation to its balance sheet. However, it must be stated, as the Commission has done, that Article 107(3)(b) TFEU gives the Commission broad discretion in fixing the conditions for the compatibility of aid. Consequently, the application of a threshold of EUR 250 million as a point of reference to determine whether additional measures to preserve effective competition on the market are necessary cannot be regarded as inappropriate. Furthermore, the applicants make a comparison with the treatment of financial institutions during the 2008 financial crisis and refer to the Communication from the Commission on the recapitalisation of financial institutions in the current financial crisis: limitation of aid to the minimum necessary and safeguards against undue distortions of competition (OJ 2009 C 10 p. 2). However, it must be found that, in contrast to the aid provided to undertakings in the banking sector during the 2008 financial crisis, it is not justified to assess the aid paid to air carriers in the very different circumstances of the COVID-19 crisis by taking into account the size of the aid in relation to the beneficiary's risk-weighted assets. Given the differences between the banking and aviation sectors and the crises concerned, it must be held that the comparison made by the applicants has no relevance.
184 Consequently, the fifth part of the first plea must be rejected, as must, therefore, that plea in its entirety.
C. Second plea in law, alleging misapplication of Article 107(3)(b) TFEU
185 This plea is divided into two parts. In the first part, the applicants claim that the individual aid measures in favour of LOT alone were not necessary, appropriate and proportionate in order to remedy a serious disturbance in the Polish economy, within the meaning of Article 107(3)(b) TFEU, but that, on the contrary, they made it worse. Non-discriminatory aid schemes available to all operators should have been put in place. LOT's role in the Polish economy is not such that the measures at issue, provided only to LOT, could remedy that disturbance, within the meaning of that provision. The applicants argue that their exclusion from those measures weakens their efficiency and makes it impossible for those measures to provide such a remedy. Moreover, with the exception of the banking sector, there have been few cases of decisions approving individual aid under that provision. Before the COVID-19 crisis there was only one precedent, in the transport sector, in circumstances that were very different. At the hearing, the applicants stated that they were withdrawing the second part.
186 The Commission, supported by the Republic of Poland and LOT, contests the arguments put forward by the applicants.
187 As a preliminary point, it should be recalled that, by the contested decision, the measure at issue was declared compatible with the internal market under Article 107(3)(b) TFEU, which provides that aid 'to remedy a serious disturbance in the economy of a Member State' may be considered to be compatible with the internal market.
188 In that regard, although the derogation from the principle that State aid is incompatible with the internal market, provided for in Article 107(3)(b) TFEU, must be interpreted strictly, the terms used to define that derogation must not, however, be construed in such a way as to restrict its scope unduly or to deprive it of its effects. A derogation must be interpreted in a manner consistent with the objectives which it pursues (see judgment of 30 May 2024, Ryanair v Commission, C‑353/21 P, not published, EU:C:2024:437, paragraph 27 and the case-law cited).
189 It is in no way apparent from the wording of Article 107(3)(b) TFEU, read in the light of the objective of that provision, which is to allow Member States to remedy a serious disturbance in their economy, that aid may only be declared compatible with the internal market on the basis of that provision if it ensures, in itself, that the serious disturbance in the economy of a Member State is remedied. Aid may, as appropriate, be intended to remedy such a serious disturbance in the economy and contribute to achieving the objective expressly referred to in that provision without, however, being sufficient in itself to attain that objective (see judgment of 30 May 2024, Ryanair v Commission, C‑353/21 P, not published, EU:C:2024:437, paragraph 28).
190 In that regard, in accordance with the case-law, in order to be able to be declared compatible with the internal market pursuant to a derogation under Article 107(2) TFEU, an aid measure, inter alia, must only contribute to the attainment of an objective set out therein (see judgment of 30 May 2024, Ryanair v Commission, C‑353/21 P, not published, EU:C:2024:437, paragraph 29 and the case-law cited).
191 Moreover, the interpretation of Article 107(3)(b) TFEU suggested by the applicants would deprive that provision of much of its effectiveness. If, in order to be able to seek to apply that provision, the Member States were required to grant aid to all undertakings of particular importance to their economy, in such a way that that aid alone guarantees that the serious disturbance in the economy is remedied, without being able to reserve that aid to a limited number of those undertakings, or even just one, those Member States would often be deterred from granting aid under that provision, because of the costs it would involve (see judgment of 30 May 2024, Ryanair v Commission, C‑353/21 P, not published, EU:C:2024:437, paragraph 30 and the case-law cited).
192 It follows that the objective pursued by Article 107(3)(b) TFEU does not mean that a Member State cannot, without that being dictated by a desire to favour one undertaking over its competitors, choose, for objective reasons, to grant only a single undertaking the benefit of a measure adopted under that provision (see judgment of 30 May 2024, Ryanair v Commission, C‑353/21 P, not published, EU:C:2024:437, paragraph 31 and the case-law cited).
193 Article 107(3)(b) TFEU does not require that the aid at issue be capable, in itself, of remedying the serious disturbance in the economy of the Member State concerned. State aid may be authorised under that provision, in the form of aid schemes or individual aid, provided that all the conditions for its application are met, if they contribute to remedying that serious disturbance in the economy (see judgment of 30 May 2024, Ryanair v Commission, C‑353/21 P, not published, EU:C:2024:437, paragraph 32 and the case-law cited).
194 It follows from the foregoing considerations that the applicants' line of argument, in so far as it may be interpreted as suggesting that only aid schemes may be declared compatible under Article 107(3)(b) TFEU or that the aid measures in question must be capable, in themselves, of remedying the serious disturbance in the economy of the Member State concerned, must be rejected.
195 It is also necessary to find as follows in relation to the applicants' argument, based on an alleged decision-making practice of the Commission or General Court, to the effect that, first, LOT was not sufficiently important, in comparison with the other airlines, including the applicants, operating in Poland to justify, in the light of Article 107(3)(b) TFEU, the grant of the aid at issue to it alone and, second, that the exclusion of the other airlines from the aid affected its efficiency.
196 In the first place, inasmuch as the applicants rely on the Commission's previous decision-making practice, it should be borne in mind that the lawfulness of the contested decision must be assessed solely in the context of Article 107(3)(b) TFEU and not in the light of an alleged earlier practice (see, to that effect, judgment of 27 February 2013, Nitrogénművek Vegyipari v Commission, T‑387/11, not published, EU:T:2013:98, paragraph 126 and the case-law cited).
197 In the second place, the fact that the beneficiaries of the aid in the cases falling within the Commission's earlier practice cited by the applicants were 'systemic' undertakings, on account of their role in the banking system or in rail transport in the Member State concerned, or the fact that an aid beneficiary in an earlier case before the General Court had a unique position, does not in any way mean that Article 107(3)(b) TFEU lays down the condition that the beneficiaries of individual aid must have an equivalent status. Under that provision, the Commission must assess whether the aid in question is necessary, appropriate and proportionate to remedy a serious disturbance in the economy of the Member State concerned (see, to that effect, judgment of 18 October 2023, Ryanair v Commission (airBaltic; COVID-19), T‑737/20, not published, EU:T:2023:641, paragraph 56). In the case at hand, the Commission concluded, in paragraph 162 of the contested decision, that such was the case.
198 In the third place, as regards the appropriateness of the aid at issue to remedy the serious disturbance in the Polish economy, which the applicants' arguments in essence call into question, it should be observed that the applicants do not dispute that the COVID-19 pandemic led to a serious disturbance in the Polish economy, or that airline transport as a whole was particularly affected by that pandemic.
199 It is also apparent from the contested decision that the objective of the aid at issue was to restore LOT's balance sheet and liquidity situation, relieve its cash flow needs and restore its viability at a time when the COVID-19 outbreak was disrupting the normal functioning of the markets and affecting the whole economy, with serious consequences for the real economy of the Member States. In paragraphs 33 to 44, 87 to 92 and 104 of the decision, the Commission explained the important role played by LOT for the Polish economy because, inter alia, LOT, first, is the biggest connectivity provider within the CEE countries in terms of the number of average daily connections and city pairs. LOT was therefore important for maintaining connectivity for Polish businesses and citizens. It was the only airline operating an airport hub in Poland. In addition, the Commission stated that LOT was the carrier with the most diversified network in Poland and that it covered domestic, European and intercontinental routes. Second, LOT and its subsidiaries employed 4 600 persons and, in the event of LOT's bankruptcy, at least 10 000 people would lose their jobs in companies related to the aviation sector. Third, the Commission explained that the bankruptcy or default of LOT would likely exacerbate the current serious disturbance in the Polish economy due to LOT's major role in terms of national and international connectivity and its economic and social weight for many suppliers and workers in Poland, which would significantly affect the recovery of the Polish economy. In that context, it explained the major role played by the aviation sector for the Polish economy. Accordingly, it concluded, in paragraph 92 of the contested decision, that the aid in question would contribute to remedying a serious disturbance in the Polish economy.
200 It is thus apparent that the Commission established LOT's importance for the Polish economy to the requisite legal standard and that the aid at issue contributed to remedying the serious disturbance in the Polish economy, in accordance with Article 107(3)(b) TFEU.
201 The applicants' other arguments are not able to call that conclusion into question. First, as regards LOT's financial difficulties before the COVID-19 pandemic, reference should be made to paragraphs 83 to 90 above. Second, as regards the possibility of obtaining the necessary financing without any aid, reference should be made to paragraphs 65 to 80 above.
202 In the light of the foregoing considerations, the second plea in law must be rejected.
D. The third plea, alleging infringement of the FEU Treaty, of general principles of EU law, such as the principles of non-discrimination, freedom to provide services and freedom of establishment, and of Regulation No 1008/2008
203 The third plea is in essence composed of two parts. By the first part, the applicants claim that the aid at issue is discriminatory and is neither necessary nor proportionate to achieve the objective assigned to it. By the second, they submit that the Commission infringed the principles of the freedom to provide services, the freedom of establishment and Regulation No 1008/2008.
204 As a preliminary point, it should be borne in mind that State aid which contravenes provisions of the Treaty or general principles of EU law cannot be declared compatible with the internal market (judgment of 22 September 2020, Austria v Commission, C‑594/18 P, EU:C:2020:742, paragraph 44; see also, to that effect, judgment of 15 April 2008, Nuova Agricast, C‑390/06, EU:C:2008:224, paragraphs 50 and 51).
1. The first part, alleging that the aid at issue is discriminatory and is neither necessary nor proportionate to achieve the objective assigned to it
205 The applicants submit that the Commission infringed the principle of non-discrimination which applies to aid under Article 107(3)(b) TFEU. They argue that LOT is the sole beneficiary of the measures at issue and has thus received favourable treatment in comparison with other airlines, without any objective justification. However, those other airlines are in a comparable situation to the situation of LOT as they also suffered damage caused by the COVID-19 pandemic and contributed more to Poland's connectivity. Moreover, the Commission failed to establish either the necessity of allocating aid to LOT only, or the appropriate and proportionate nature of the difference in treatment between LOT and the other airlines. The applicants add that if the aid had been allocated to all the airlines that operate in Poland, on the basis of their market share, the objective of the measures would have been reached with no discrimination. The aid at issue is a 'measure of mere economic nationalism'.
206 The Commission, supported by LOT, disputes the applicants' arguments.
207 The principle of non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (judgment of 15 April 2008, Nuova Agricast, C‑390/06, EU:C:2008:224, paragraph 66; see also, to that effect, judgment of 5 June 2018, Montero Mateos, C‑677/16, EU:C:2018:393, paragraph 49).
208 The elements which characterise different situations, and therefore their comparability, must in particular be determined and assessed in the light of the subject matter and purpose of the EU act which makes the distinction in question. The principles and objectives of the field to which the act relates must also be taken into account (judgment of 16 December 2008, Arcelor Atlantique et Lorraine and Others, C‑127/07, EU:C:2008:728, paragraph 26).
209 Moreover, it should be borne in mind that the principle of proportionality, which is one of the general principles of EU law, requires that acts adopted by EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued by the legislation in question (judgment of 17 May 1984, Denkavit Nederland, 15/83, EU:C:1984:183, paragraph 25); where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (judgment of 30 April 2019, Italy v Council (Fishing quota for Mediterranean swordfish), C‑611/17, EU:C:2019:332, paragraph 55).
210 According to settled case-law, classification of a national measure as 'State aid' within the meaning of Article 107(1) TFEU, requires four conditions to be fulfilled. First, there must be an intervention by the State or through State resources. Second, that 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 30 May 2024, Ryanair v Commission, C‑353/21 P, not published, EU:C:2024:437, paragraph 57 and the case-law cited).
211 It is therefore with regard to measures having such characteristics and such effects, in so far as they are liable to distort competition and affect trade between the Member States, that Article 107(1) TFEU lays down the principle that State aid is incompatible with the internal market (judgment of 30 May 2024, Ryanair v Commission, C‑353/21 P, EU:C:2024:437, paragraph 58).
212 In particular, the requirement of selectivity arising from Article 107(1) TFEU presupposes that, where the Commission intends to classify a given measure as State aid, it will establish that the economic advantage, understood in the broad sense, arising directly or indirectly from that measure specifically benefits one or more undertakings. It falls to the Commission to show, in particular, that the measure in question creates differences between undertakings which, with regard to the objective of the measure, are in a comparable situation. It is necessary therefore that the advantage be granted selectively and that it be liable to place certain undertakings in a more favourable situation than that of others (see judgment of 30 May 2024, Ryanair v Commission, C‑353/21 P, not published, EU:C:2024:437, paragraph 59 and the case-law cited).
213 However, Article 107(2) and (3) TFEU provides for certain derogations from the principle that State aid is incompatible with the internal market, such as the one set out in Article 107(3)(b) TFEU, concerning aid 'to remedy a serious disturbance in the economy of a Member State'. Accordingly, State aid granted for the purposes of, and in accordance with, the conditions laid down by those derogating provisions, notwithstanding the fact that it has the characteristics and produces the effects referred to in paragraph 210 above, is compatible with, or is capable of being declared compatible with, the internal market (judgment of 30 May 2024, Ryanair v Commission, C‑353/21 P, not published, EU:C:2024:437, paragraph 63).
214 It follows that, unless those derogating provisions are to be deprived of all practical effect, State aid which is granted in accordance with those requirements, that is to say, for the purposes of an objective recognised therein and within the limits of what is necessary and proportionate to the achievement of that objective, cannot be held to be incompatible with the internal market having regard solely to the characteristics or effects, referred to in paragraph 210 above, which are inherent in any State aid, that is to say, inter alia, for reasons relating to whether the aid is selective or distorts competition (see judgment of 30 May 2024, Ryanair v Commission, C‑353/21 P, not published, EU:C:2024:437, paragraph 64 and the case-law cited).
215 Therefore, aid cannot be considered incompatible with the internal market for reasons that are solely linked to whether it is selective or distorts or threatens to distort competition (judgment of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 108).
216 It is true that it should also be borne in mind that the procedure provided for in Article 108 TFEU must never produce a result that is contrary to the specific provisions of the FEU Treaty and that aid which, as such or by reason of some modalities thereof, contravenes provisions or general principles of EU law cannot be declared compatible with the internal market (see judgment of 30 May 2024, Ryanair v Commission, C‑353/21 P, not published, EU:C:2024:437, paragraph 65 and the case-law cited). However, as regards specifically the principle of non-discrimination on grounds of nationality laid down in Article 18 TFEU, it is settled case-law that that article is intended to apply independently only to situations governed by EU law in respect of which the FEU Treaty lays down no specific prohibition of discrimination (see judgment of 30 May 2024, Ryanair v Commission, C‑353/21 P, not published, EU:C:2024:437, paragraph 66 and the case-law cited).
217 Since Article 107(2) and (3) TFEU provides for derogations from the principle, set out in paragraph 1 of that article, that State aid is incompatible with the internal market and thus allows, in particular, differences in treatment between undertakings, subject to fulfilment of the requirements laid down by those derogations, those derogations must be regarded as 'special provisions' provided for in the Treaties, within the meaning of the first paragraph of Article 18 TFEU (see judgment of 30 May 2024, Ryanair v Commission, C‑353/21 P, not published, EU:C:2024:437, paragraph 67 and the case-law cited).
218 It follows that, in the present case, it is necessary to examine only whether the difference in treatment brought about by the measures at issue is permitted under Article 107(3) TFEU. That examination means, first, that the objective of the measures at issue must satisfy the requirements laid down in that provision and, secondly, that the detailed rules for granting the measures at issue, namely, in the present case, that they benefit only LOT, are such as to enable that objective to be achieved and do not go beyond what is necessary to achieve it.
219 As regards, first, the objective of the measures at issue, it should be observed that the COVID-19 pandemic led to a serious disturbance in the Polish economy and had major adverse effects on the Polish air transport market. In that context, for the reasons set out in paragraphs 199 to 201 above, the objective of the measures at issue, namely to restore LOT's balance sheet and liquidity position, to relieve cash flow needs and to restore LOT's viability, was capable of remedying the serious disturbance in the Polish economy.
220 As regards, second, the detailed rules for granting the measures at issue, the applicants submit that the abovementioned objective of those measures does not justify the difference in treatment resulting from them. They argue that that difference in treatment is not proportionate in so far as those measures grant all of the aid to LOT, whereas LOT's share of Poland's connectivity is less than 100%.
221 In that regard, it is not disputed that the other airlines contributed to Poland's connectivity and were affected by the COVID-19 pandemic and the resulting travel restrictions. However, it nevertheless remains the case, as the Commission submits, that Member States are under no obligation to grant aid to remedy the serious disturbance in an economy within the meaning of Article 107(3)(b) TFEU (see, to that effect, judgment of 14 July 2021, Ryanair and Laudamotion v Commission (Austrian Airlines; Covid-19), T‑677/20, EU:T:2021:465, paragraph 54). The Republic of Poland was therefore not required to grant aid to all the undertakings that contribute, to one degree or another, to the connectivity of its territory.
222 In addition, given its major role in domestic and international connectivity and its economic and social weight in Poland, as established in the examination of the third complaint of the first part of the first plea in paragraphs 42 to 56 above and in the examination of the second plea in paragraphs 187 to 202 above, it must be held that ensuring the continuity of LOT's economic activities was capable of contributing to remedying the serious disturbance in the Polish economy.
223 Lastly, as regards the question whether the measures at issue go beyond what is necessary to achieve the objective pursued, the Commission stated, in paragraphs 46 and 47 of the contested decision, that the amount of the subsidised loan did not exceed 25% of the beneficiary's annual turnover in 2019, that it would be limited to a period of six years and that it would be repaid by the end of 2026 at the latest. There is therefore no evidence to show that the amount of the loan is disproportionate, which, moreover, the applicants do not specifically contradict. As regards the recapitalisation measure, it is apparent from paragraph 135 of that decision that, according to the analysis of the data carried out by the Commission, the recapitalisation did not exceed the minimum required to ensure LOT's viability and did not go beyond restoring its capital structure to what it was on 31 December 2019, namely before the COVID-19 pandemic.
224 The applicants do not dispute those facts in the present plea. They merely claim that the measures at issue are disproportionate since they are intended only for LOT, even though its share of Poland's international connectivity is limited to 26%. They argue that allocating the aid to all the airlines that were operating at that time in Poland, based on their market share, would have led to the objective of the measure being attained without any discrimination.
225 In that regard, it should be observed that the Commission is under no obligation to examine whether the Republic of Poland, in addition to maintaining the viability of LOT, should have widened the circle of the beneficiaries of the aid since the contested decision establishes to the requisite legal standard the need to preserve LOT's contribution to the Polish economy.
226 Accordingly, this part of the plea must be rejected.
2. The second part, alleging infringement of the principles of the freedom to provide services, the freedom of establishment and Regulation No 1008/2008
227 The applicants argue that the Commission infringed the principles of the freedom to provide services, the freedom of establishment and Regulation No 1008/2008, which applies the principle of the freedom to provide services in the aviation sector. They submit that the measures at issue impede or render less attractive, and ultimately restrict, the activities of the airlines competing with LOT in Poland. Such a restriction is not justified, as it is discriminatory and disproportionate.
228 The Commission, supported by LOT, disputes the applicants' arguments.
229 In that regard, as observed in paragraph 216 above, the procedure provided for in Article 108 TFEU must never produce a result which is contrary to the specific provisions of the FEU Treaty and aid which, as such or by reason of some modalities thereof, contravenes provisions or general principles of EU law cannot be declared compatible with the internal market (see judgment of 30 May 2024, Ryanair v Commission, C‑353/21 P, not published, EU:C:2024:437, paragraph 65 and the case-law cited).
230 However, it should be stated, first, that the restrictive effects which an aid measure has on the freedom to provide services or the freedom of establishment still do not constitute a restriction prohibited by the Treaty, since it may be inherent in the very nature of State aid, such as its selective nature (see judgment of 30 May 2024, Ryanair v Commission, C‑353/21 P, not published, EU:C:2024:437, paragraph 90 and the case-law cited).
231 Second, where the modalities of an aid measure are so indissolubly linked to the object of the aid that it is impossible to evaluate them separately, their effect on the compatibility or incompatibility of the aid viewed as a whole with the internal market must therefore of necessity be determined by means of the procedure prescribed in Article 108 TFEU (see judgment of 30 May 2024, Ryanair v Commission, C‑353/21 P, not published, EU:C:2024:437, paragraph 91 and the case-law cited).
232 In the present case, as is apparent from paragraphs 2 and 85 of the contested decision, the choice of LOT as beneficiary of the measures at issue is part of the object of those measures and, in any event, even if that choice were to be regarded as a modality thereof, the applicants do not dispute that such a modality is inextricably linked to that object, which consisted in remedying the serious disturbance in the Polish economy caused by the COVID-19 pandemic, by guaranteeing sufficient liquidity to LOT to restore its viability and preventing its possible insolvency from aggravating that disturbance, given the importance of that company for the Polish economy. It follows that the effect on the internal market of the choice of LOT as beneficiary of the measures at issue cannot be examined separately from the effect of the compatibility of those aid measures viewed as a whole with the internal market by means of the procedure prescribed in Article 108 TFEU.
233 Although the applicants submit that the measures at issue constitute an obstacle to the freedom of establishment and the freedom to provide services on account of their discriminatory and disproportionate nature, arguments which have, moreover, been rejected in paragraphs 207 to 226 above, they do not demonstrate, in the present case, that the measures at issue produced restrictive effects which would go beyond those inherent in State aid granted in accordance with the requirements laid down in Article 107(3) (b) TFEU.
234 Nor, furthermore, do the applicants show how that exclusive nature is such as to deter airlines from providing services to and from Poland or from exercising their freedom of establishment in that Member State.
235 Consequently, the measures at issue cannot constitute an obstacle to the freedom of establishment or to the freedom to provide services. It follows that the applicants have no grounds to complain that the Commission failed to examine the compatibility of those measures with the freedom of establishment and the freedom to provide services.
236 This part of the plea must therefore be rejected and, consequently, the third plea must be dismissed in its entirety.
E. The fourth plea in law, alleging that the Commission should have initiated the formal investigation procedure and claiming infringement of the applicants' procedural rights
237 The applicants submit that the Commission, by failing to initiate the formal investigation procedure, infringed the procedural rights they derive from Article 108(2) TFEU and from Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU] (OJ 2015 L 248, p. 9) and the principle of good administration. The insufficient and incomplete examination of the measures at issue in the contested decision shows the existence of serious difficulties that justified the initiation of that procedure. According to the applicants, the urgency brought about by the COVID-19 crisis provides no exception to the obligation to initiate a formal investigation in cases of doubt as to the compatibility of aid. Had that formal investigation procedure taken place, the outcome of the procedure might have been different. Moreover, they submit that the content of this plea is independent of and differs from the first three pleas to which it refers.
238 The Commission, supported by LOT, disputes the applicants' arguments.
239 When an applicant seeks the annulment of a decision of the Commission not to raise objections in relation to State aid, it is essentially contesting the fact that that decision was adopted without the Commission initiating the formal investigation procedure provided for in Article 108(2) TFEU, thereby infringing the applicant's procedural rights. In order to have its action for annulment upheld, the applicant may invoke any plea to show that the assessment of the information and evidence which the Commission had at its disposal during the preliminary examination phase of the measure notified should have raised doubts as to the compatibility of that measure with the internal market. The use of such arguments cannot, however, have the consequence of changing the subject matter of the application or altering the conditions of its admissibility. On the contrary, the existence of doubts concerning that compatibility is precisely the evidence which must be adduced in order to show that the Commission was required to initiate the formal investigation procedure under that provision and Article 6(1) of Regulation 2015/1589 (see judgment of 30 May 2024, Ryanair v Commission, C‑353/21 P, not published, EU:C:2024:437, paragraph 101 and the case-law cited).
240 Thus, it is for the party applying for annulment of a decision not to raise any objections to show that there were doubts concerning the compatibility of the aid with the internal market, meaning that the Commission was required to initiate the formal investigation procedure. Such proof must be sought both in the circumstances in which the decision was taken and in its content, on the basis of a body of corroborating evidence (see judgment of 30 May 2024, Ryanair v Commission, C‑353/21 P, not published, EU:C:2024:437, paragraph 102 and the case-law cited).
241 In particular, the insufficient or incomplete nature of the examination carried out by the Commission during the preliminary examination procedure is an indication that the Commission was faced with serious difficulties in assessing the compatibility of the notified measure with the internal market, which should have led it to initiate the formal investigation procedure (see judgment of 30 May 2024, Ryanair v Commission, C‑353/21 P, not published, EU:C:2024:437, paragraph 103 and the case-law cited).
242 In that respect, as regards, first of all, the argument that the content of the fourth plea is independent, it should be observed that it is true, as the applicants claim, that if the existence of serious difficulties in assessing the compatibility of the measures at issue were demonstrated, the contested decision would have to be annulled on that ground alone, even if it had not been established, moreover, that the Commission's assessments as to substance were wrong in law or in fact (see, to that effect, judgment of 30 May 2024, Ryanair v Commission, C‑353/21 P, not published, EU:C:2024:437, paragraph 104 and the case-law cited).
243 Furthermore, the existence of such difficulties may be sought, inter alia, in those assessments and may, in principle, be established by pleas or arguments put forward by an applicant in order to challenge the merits of the decision not to raise objections, even if the examination of those pleas or arguments does not lead to the conclusion that the Commission's assessments as to substance are wrong in fact or in law (see judgment of 30 May 2024, Ryanair v Commission, C‑353/21 P, not published, EU:C:2024:437, paragraph 105 and the case-law cited).
244 In the present case, it must be stated that the present plea, in essence, alleges that the examination carried out by the Commission during the preliminary examination procedure was incomplete and insufficient and that the Commission would have arrived at a different assessment of the compatibility of the measures at issue if it had decided to initiate a formal investigation procedure. However, it is apparent from the applicants' written submissions that, in support of this plea, they have essentially either repeated in a condensed manner arguments put forward in the first three pleas, relating to the merits of the contested decision, or referred directly to such arguments.
245 In those circumstances, since the Court has examined the first three pleas on the merits, including the arguments alleging that the examination carried out by the Commission was incomplete and insufficient, it is not required to assess the merits of the present plea separately, particularly since, by this plea, the applicants have not identified any specific factors capable of demonstrating the existence of serious difficulties encountered by the Commission in assessing the compatibility of the measures at issue with the internal market.
246 It follows from the foregoing that the fourth plea must be rejected.
F. The fifth plea in law, alleging breach of the duty to state reasons
247 The applicants claim that the Commission infringed the obligation to state reasons under the second paragraph of Article 296 TFEU. First, referring to the first plea, they submit that the Commission failed to (i) demonstrate that LOT was eligible for a recapitalisation measure under the Temporary Framework; (ii) provide any details to be able to assess whether the valuation of LOT's equity was appropriate; (iii) explain why a hub-and-spoke network ensured better connectivity than a point-to-point network; (iv) consider downsizing as an option to escape insolvency and the grant of aid; (v) prove that LOT was unable to raise financing on the markets; (vi) explain why the other aid allegedly granted to LOT should not be accounted for in determining the compatibility of the aid and why under such conditions additional pro-competitive 'governance' remedies should not be imposed; and (vii) assess whether the recapitalisation instrument at issue was the least distortive to competition.
248 Next, referring to the second plea, the applicants submit that the Commission failed to determine how the difference in treatment of LOT could be necessary and proportionate in order to remedy a serious disturbance in the Polish economy.
249 Referring to its third plea, the applicants submits that the Commission failed to assess whether the aid was non-discriminatory and complied with the principles of the freedom to provide services, the freedom of establishment and Regulation No 1008/2008.
250 Lastly, the applicants submit that the contradiction between the stated aim of the aid, namely to remedy a serious disturbance in the Polish economy and preserve the connectivity of Poland, and the means used to achieve it, namely the grant of discriminatory aid, does not allow the interested parties or the Court to understand the aim of the measures at issue.
251 The Commission, supported by LOT, disputes the applicants' arguments.
252 It should be pointed out that, according to settled case-law, the statement of reasons required by the second paragraph of Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measures in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the court having jurisdiction to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular, the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to specify all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of the second paragraph of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 30 May 2024, Ryanair v Commission, C‑353/21 P, not published, EU:C:2024:437, paragraph 114 and the case-law cited).
253 Specifically, as regards a decision under Article 108(3) TFEU not to raise objections in respect of an aid measure, as in the present case, the Court of Justice has held previously, as apparent from the case-law referred to in paragraph 89 above, that such a decision, which is taken within a short period of time, must simply set out the reasons why the Commission takes the view that it is not faced with serious difficulties in assessing the compatibility of the aid at issue with the internal market, and that even a succinct statement of reasons for that decision must be regarded as sufficient for the purpose of satisfying the requirement to state adequate reasons laid down in the second paragraph of Article 296 TFEU, provided that it discloses in a clear and unequivocal fashion the reasons why the Commission considered that it was not faced with serious difficulties, the question whether the reasoning is well founded being a separate matter (see judgment of 30 May 2024, Ryanair v Commission, C‑353/21 P, not published, EU:C:2024:437, paragraph 115 and the case-law cited).
254 It is also necessary to refer to the case-law cited in paragraph 156 above, according to which, since the contested decision clearly disclosed the Commission's reasoning, enabling the substance of that decision to be challenged subsequently before the competent court, it would be excessive to require a specific statement of reasons for each of the technical choices or each of the figures on which that reasoning is based.
255 In that regard, first, in so far as the line of argument put forward in this plea seeks in reality to demonstrate that the contested decision was adopted on the basis of an insufficient or legally incorrect assessment by the Commission, that line of argument, relating to the merits of that decision rather than to the requirement to state reasons as an essential procedural requirement, must be rejected in the context of the present plea (see, to that effect, judgment of 30 May 2024, Ryanair v Commission, C‑353/21 P, not published, EU:C:2024:437, paragraph 120). That is the case as regards the arguments that the Commission failed to (i) demonstrate that LOT was eligible for a recapitalisation measure under the Temporary Framework; (ii) consider downsizing as an option to avoid insolvency and the grant of aid; (iii) prove that LOT was unable to raise funds on the markets; (iv) assess whether the recapitalisation instrument at issue was the least distortive to competition; (v) determine how the difference in treatment of LOT could be necessary and proportionate for remedying a serious disturbance in the Polish economy; and (vi) assess whether the aid was non-discriminatory and complied with the principles of the freedom to provide services, the freedom of establishment and with Regulation No 1008/2008. The arguments concerning those factors were assessed above in the context of the first, second and third pleas.
256 In any event, second, it must be held that the Commission stated reasons to the requisite legal standard, as is apparent from paragraphs 18 to 90 above, as to why LOT was eligible for the recapitalisation measure in the light of point 49 of the Temporary Framework. In that context, it was not obliged to examine a possible downsizing of LOT's operations.
257 Furthermore, it is apparent from paragraph 96 above that a recapitalisation measure and the conditions attached to it may be regarded as the most appropriate to address the recapitalisation needs of the beneficiary concerned, while at the same time being the least distortive to competition, within the meaning of point 53 of the Temporary Framework, as long as they meet the various requirements laid down to that end in that framework. The Commission was therefore under no obligation to examine whether, apart from the recapitalisation measure at issue, there were no other recapitalisation instruments likely to be less distortive to competition. Accordingly, the Commission was not required to provide reasons in that regard.
258 In addition, it is apparent from paragraphs 185 to 202 and 220 to 225 above that the Commission explained to a sufficient degree that the measures at issue were necessary, appropriate and proportionate to remedy a serious disturbance in the Polish economy, even though they benefited only LOT. In addition, it is apparent from paragraphs 91 to 144 above that the Commission explained to a sufficient degree that the recapitalisation measure was proportionate in the sense that it complied with points 53 and 54 of the Temporary Framework, which reflect the assessment of the proportionality of the recapitalisation measure.
259 Lastly, as regards the statement of reasons in the light of the principles of non-discrimination, the freedom to provide services, the freedom of establishment and Regulation No 1008/2008, reference should be made to paragraphs 205 to 236 above. More specifically, as is apparent from paragraph 219 above, the fact that the measures at issue benefited only LOT did not contradict the objective of those measures. Accordingly, the reasoning of the contested decision is not contradictory.
260 Third, as regards the applicants' argument alleging a failure to state reasons due to the lack of details in the contested decision which would make it possible to assess whether the valuation of LOT's equity was appropriate, there is no failure to state reasons for the reasons set out in paragraphs 151 to 158 above.
261 Fourth, as observed in paragraph 45 above, the Commission stated in the contested decision that LOT's hub-and-spoke network enabled it to multiply connections with various parts of the world, such that there is no failure to state reasons in that regard.
262 Fifth, as regards the statement of reasons relating to the taking into account of other aid granted to LOT, it is apparent from paragraphs 140 to 144 above that the statement of reasons for the contested decision was, in that regard, sufficient. As regards the statement of reasons as to there being no need to impose additional pro-competitive 'governance' measures, it should be observed, first, that the lack of a need for those measures is the subject of specific arguments in paragraphs 162 to 183 above and, second, that the Commission was not required to apply point 72 of the Temporary Framework, given that the amount of the recapitalisation measure did not exceed EUR 250 million. It was therefore not required to provide further reasoning for that aspect in that decision.
263 Consequently, the fifth plea in law must be rejected and, therefore, the action must be dismissed in its entirety.
IV. Costs
264 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the applicants have been unsuccessful, they must be ordered to bear their own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the latter.
265 The Republic of Poland is to bear its own costs, in accordance with Article 138(1) of the Rules of Procedure.
266 LOT is to bear its own costs, in accordance with Article 138(3) of the Rules of Procedure.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1. Dismisses the action;
2. Orders Ryanair DAC and Ryanair Sun S.A. to bear their own costs and to pay those incurred by the European Commission;
3. Orders the Republic of Poland and Polskie Linie Lotnicze 'LOT' S.A. to bear their own costs.
Kowalik-Bańczyk
Hesse
Ricziová
Delivered in open court in Luxembourg on 2 April 2025.
