INHALT

Commission Decision (EU) 2018/628 of 11 November 2016 on State aid SA.24221(2011/C) (ex 2011/NN) implemented by Austria for the Klagenfurt airport, Ryanair and other airlines using the airport (notified under document C(2016) 7131) (Text with EEA relevance. )

COMMISSION DECISION (EU) 2018/628
of 11 November 2016
on State aid SA.24221(2011/C) (ex 2011/NN) implemented by Austria for the Klagenfurt airport, Ryanair and other airlines using the airport
(notified under document C(2016) 7131)
(Only the German version is authentic)
(Text with EEA relevance)
1.
PROCEDURE
2.
DESCRIPTION OF THE MEASURES AND GROUNDS FOR INITIATING THE PROCEDURE
2.1.
Introduction
2.2.
General presentation of Klagenfurt Airport
2.3.
Entities involved in the measures at Klagenfurt Airport
2.3.1.
Destinations Management GmbH
2.3.2.
Kärnten Werbung, Marketing & Innovationsmanagement GmbH
2.3.3.
Kärntner Landes- und Hypothekenbank-Holding
2.3.4.
Leading Verge.Com Limited
2.3.5.
Airport Marketing Services (Jersey) Limited
2.4.
Financing of Klagenfurt Airport by the City of Klagenfurt, the State of Carinthia and other entities
2.5.
The Airport Incentive Scheme of Kärntner Flughafen Betriebs GmbH of 2005
2.6.
The agreements with Ryanair, LV and AMS
2.6.1.
The 2002 agreements
2.6.1.1.
The airport services agreement between KFBG and Ryanair of 22 January 2002
2.6.1.2.
The marketing agreement between DMG and LV of 22 January 2002 (the first marketing agreement)
2.6.1.3.
The marketing agreement between DMG and AMS of 22 January 2002 (the second marketing agreement)
2.6.1.4.
The side letter of the marketing agreement between DMG and LV of 22 January 2002 (the third marketing agreement)
2.6.1.5.
Summary of the payments under the different agreements with Ryanair and its subsidiaries
2.6.2.
The 2006 agreements
2.6.2.1.
The airport services agreement between KFBG and Ryanair of 23 August 2006
2.6.2.2.
The marketing agreement between DMG and AMS of 21 December 2006
2.7.
The agreements with Hapag Lloyd Express (HLX) and Tuifly
2.8.
The agreement with Air Berlin
2.9.
The agreement with Austrian Airlines of 20 October 2005
2.10.
Grounds for initiating the procedure in February 2012 and extending the procedure in July 2014
2.10.1.
Financing of Klagenfurt Airport by the City of Klagenfurt, the State of Carinthia and other entities
2.10.2.
The Airport Incentive Scheme of Kärntner Flughafen Betriebs GmbH of 2005
2.10.3.
The agreements with Ryanair, LV and AMS in 2002 and 2006
2.10.4.
The agreements with Hapag Lloyd Express (HLX) and Tuifly
2.10.5.
The agreement with Air Berlin
2.10.6.
The agreement with Austrian Airlines of 20 October 2005
3.
COST-BENEFIT ANALYSES SUBMITTED BY THE AUSTRIAN AUTHORITIES
4.
COMMENTS FROM AUSTRIA
5.
COMMENTS FROM INTERESTED PARTIES
5.1.
Austrian Airlines, Lufthansa, Germanwings
5.2.
Ryanair
5.2.1.
Comments made directly by Ryanair
5.2.2.
Reports and analyses provided by Ryanair
5.2.2.1.
Oxera Note 1 — Economic MEIP
(11)
Assessment for Klagenfurt Airport, prepared for Ryanair by Oxera, 4 July 2011
5.2.2.2.
Oxera Note 2 — Economic MEIP Assessment for Klagenfurt Airport, prepared for Ryanair by Oxera, 31 August 2012
5.2.2.3.
Oxera Note 3 — Identifying the market benchmark in comparator analysis for MEO tests. Ryanair State aid cases, prepared for Ryanair by Oxera, 9 April 2013
5.2.2.4.
Oxera Note 4 — Principles underlying profitability analysis for MEO tests. Ryanair State aid cases, prepared for Ryanair by Oxera, 9 April 2013
5.2.2.5.
Analysis of Professor Damien P. McLoughlin — Brand building: why and how small brands should invest in marketing, prepared for Ryanair, 10 April 2013
5.2.2.6.
Oxera Note 5 — Are prices set by AMS in line with the market rate?, prepared for Ryanair by Oxera, 20 December 2013
5.2.2.7.
Oxera Notes 6 and 7 — How should AMS Agreements be treated within the profitability analysis as part of the market operator test?, prepared for Ryanair by Oxera, 17 and 31 January 2014
5.2.2.8.
Oxera Note 8 — Allocation of investment costs, prepared for Ryanair, 12 September 2014
5.2.2.9.
Oxera Note 9 — Evaluating the wider impact of AMS Agreements on airport traffic, prepared for Ryanair by Oxera, 26 September 2014
5.2.2.10.
Oxera Note 10 — Economic MEOP assessment: Klagenfurt Airport — profitability analysis, prepared for Ryanair by Oxera, 3 November 2014
5.2.2.11.
Oxera Note 11 — Why is comparator analysis an important supplement to profitability analysis in MEOP assessments?, prepared for Ryanair by Oxera, 26 January 2015
5.2.2.12.
Oxera Note 12 — Economic MEOP assessments: comparator analysis, including AMS, Addendum to Oxera's 2010 report, 10 April 2015
5.2.2.13.
Oxera Note 13 — The impact of Ryanair's operations on airports' non-aeronautical revenues, 4 December 2015
5.3.
AMS
5.3.1.
On AMS and the Ryanair website
5.3.2.
On the absence of advantages to AMS or Ryanair
5.3.3.
On the pricing of AMS' services
6.
COMMENTS FROM AUSTRIA ON INTERESTED PARTY COMMENTS
6.1.
Austria's comments on interested party submissions by Austrian Airlines, Lufthansa, Germanwings
6.2.
Austria's comments on interested party submissions by Ryanair and AMS
7.
ASSESSMENT OF THE EXISTENCE OF AID
7.1.
The financing of KFBG and DMG
7.1.1.
Economic activity and notion of undertaking
7.1.1.1.
Single economic unit
7.1.1.2.
Economic activity
7.1.1.3.
Public policy remit
7.1.2.
State resources and imputability to the State
7.1.3.
Economic advantage
7.1.3.1.
Market Economy Operator Principle
7.1.3.2.
Service of general economic interest
7.1.4.
Selectivity
7.1.5.
Distortion of competition and effect on trade
7.1.6.
Conclusion
7.2.
The 2005 incentive scheme
7.2.1.
Economic activity and notion of undertaking
7.2.2.
Economic advantage
7.2.3.
Conclusion
7.3.
The conclusion of the settlement agreement with AUA and the application of the 2005 incentive scheme to AUA
7.3.1.
Economic activity and notion of undertaking
7.3.2.
Economic advantage
7.3.2.1.
Time frame for the Assessment of incremental costs and revenues
7.3.2.2.
Assessment
7.3.3.
Conclusion
7.4.
The 2002 agreements with Ryanair, LV and AMS
7.4.1.
Economic activity and notion of undertaking
7.4.2.
State resources and imputability to the State
7.4.3.
Economic advantage
7.4.3.1.
Application of the Market Economy Operator Principle to the 2002 agreements with Ryanair, LV and AMS
(a)
Regarding an analysis of the marketing services agreements and the airport services agreement together
(b)
Regarding the benefits that an MEO could have expected to gain from marketing services agreements and the price that it would have been willing to pay for those services
(c)
The feasibility of comparing Klagenfurt airport to other European airports
7.4.3.2.
Conclusion on the terms for applying the market economy operator test
7.4.3.3.
Time frame for the Assessment of incremental costs and revenues
7.4.3.4.
Assessment
7.4.3.5.
Conclusion on economic advantage
7.4.4.
Selectivity
7.4.5.
Distortion of competition and effect on trade
7.4.6.
Conclusion
7.5.
The 2006 agreements with Ryanair and AMS
7.5.1.
Economic activity and notion of undertaking
7.5.2.
State resources and imputability to the State
7.5.3.
Economic advantage
7.5.3.1.
Market Economy Operator Principle
7.5.3.2.
Market Economy Operator Principle — Regarding an analysis of the marketing services agreements and the airport services agreement together
7.5.3.3.
Time frame for the Assessment of incremental costs and revenues
7.5.3.4.
Assessment
7.5.3.5.
Conclusion on economic advantage
7.5.4.
Selectivity
7.5.5.
Distortion of competition and effect on trade
7.5.6.
Conclusion
7.6.
The 2003 agreement with HLX
7.6.1.
Economic activity and notion of undertaking
7.6.2.
State resources and imputability to the State
7.6.3.
Economic advantage
7.6.3.1.
Market Economy Operator Principle
7.6.3.2.
Time frame for the Assessment of incremental costs and revenues
7.6.3.3.
Assessment
7.6.3.4.
Conclusion on economic advantage
7.6.4.
Selectivity
7.6.5.
Distortion of competition and effect on trade
7.6.6.
Conclusion
7.7.
The 2008 agreement with Tuifly
7.7.1.
Economic activity and notion of undertaking
7.7.2.
State resources and imputability to the State
7.7.3.
Economic advantage
7.7.3.1.
Market Economy Operator Principle
7.7.3.2.
Time frame for the Assessment of incremental costs and revenues
7.7.3.3.
Assessment
7.7.3.4.
Conclusion on economic advantage
7.7.4.
Selectivity
7.7.5.
Distortion of competition and effect on trade
7.7.6.
Conclusion
7.8.
The 2009 agreement with Air Berlin
7.8.1.
Economic advantage
7.8.1.1.
Market Economy Operator Principle
7.8.1.2.
Time frame for the Assessment of incremental costs and revenues
7.8.1.3.
Assessment
7.8.1.4.
Conclusion on economic advantage
7.8.2.
Conclusion
7.9.
Conclusion on existence of aid
8.
LAWFULNESS OF THE AID
8.1.
The financing of KFBG
8.2.
The 2002 and 2006 agreements with Ryanair, LV and AMS
8.3.
The 2003 agreement with HLX and the 2008 agreement with Tuifly
9.
ASSESSMENT OF THE COMPATIBILITY OF THE AID
9.1.
The financing of KFBG
9.1.1.
Compatibility pursuant to the 2014 Aviation Guidelines
9.1.1.1.
Contribution to a well-defined objective of common interest
9.1.1.2.
Need for State intervention
9.1.1.3.
Appropriateness of State aid as a policy instrument
9.1.1.4.
Existence of incentive effect
9.1.1.5.
Proportionality of the aid amount (aid limited to the minimum necessary)
9.1.1.6.
Avoidance of undue negative effects on competition and trade
9.1.2.
Conclusion
9.2.
Agreements with airlines — Applicable legal framework
9.2.1.
The 2002 agreements with Ryanair
9.2.2.
The 2006 agreements with Ryanair
9.2.3.
The 2003 agreement with HLX
9.2.4.
The 2008 agreement with Tuifly
9.3.
The 2002 agreements with Ryanair, LV and AMS
9.3.1.
Compatibility assessment pursuant to Article 107(3)(c) TFEU: the aid must be limited in time and involve a route likely to become profitable
9.3.2.
The aid must be proportional, i.e. the amount must be linked to the net development of traffic.
9.3.3.
Conclusion
9.4.
The 2006 agreements with Ryanair and AMS — Compatibility assessment pursuant to 2005 Aviation Guidelines
9.5.
The 2003 agreement with HLX
9.5.1.
Compatibility assessment pursuant to Article 107(3)(c) TFEU
9.5.2.
The aid must be limited in time and involve a route likely to become profitable
9.5.3.
Conclusion
9.6.
The 2008 agreement with Tuifly — Compatibility assessment pursuant to 2005 Aviation Guidelines
10.
CONCLUSION
11.
RECOVERY
11.1.
Determination of the aid amounts
11.2.
Effective termination dates of certain agreements
11.3.
Marketing payments taken into account
Article 1
Article 2
Article 3
Article 4
Article 5
Article 6
Article 7
Article 8
Article 9
Article 10
Article 11
Article 12