Judgment of the Court of Justice of the EU in the Lübeck airport case: no selectivity in airport tariffs

On 21 December 2016, the Court of Justice of the EU gave its judgment in the Lübeck Airport case. It confirmed the General Court judgment annulling a Commission decision on the issue of selectivity.

As a reminder, in September 2014 the General Court of the EU gave a significant ruling concerning the selectivity criterion with regard to airport charges in the Lübeck Airport case.In 2006, the Commission had opened a formal investigation procedure, notably concerning airport charges. This procedural decision had been challenged before the General Court. The latter annulled it on a very interesting point relative to the selectivity measure. As you may remember, the selectivity of a public measure (which has to favour one or several undertakings), is an essential condition in order to establish the existence of an aid.

In its ruling of 2014, the General Court had considered that the selectivity at the level of the airport was not motivated adequately by the Commission in its decision to open an in-depth investigation on the airport fees imposed on airlines.

This ruling was challenged by the Commission before the Court of Justice of the EU.

In its judgment, the Court of Justice dismissed the Commission’s appeal and concluded that the selectivity should be assessed at the level of the airport if its manager set up the airport charges. The charges paid by airlines in other airports must not be taken into consideration.

Therefore, the rebates on airport charges (for new routes or on the basis of the volume of passengers) if they are transparent and non-discriminatory, must not be assessed under the market economy operator principle, which will facilitate the management of regional airports.

Indeed, until now, the European Commission requested that airports draft a business plan for all kinds of incentives granted to airlines, including transparent and non-discriminatory rebates on airport charges. This will not be the case in the future unless they are coupled with other incentives such as marketing contributions.