Key facts of the case:
Appeal — State aid — Article 108(2) TFEU — Investment aid — Operating aid — Airport infrastructure — Public funding by the municipalities of Gdynia and Kosakowo for setting up the Gdynia-Kosakowo Airport — Decision of the European Commission — Aid incompatible with the internal market — Order for recovery of the aid — Annulment by the General Court of the European Union — Essential procedural requirement — Procedural rights of the interested parties.
Outcome of the case:
For these reasons, I propose that the Court should:
(i) annul the judgment of 17 November 2017 in Case T‑263/15, Gmina Miasto Gdynia and Port Lotniczy Gdynia-Kosakowo v Commission;
(ii) dismiss the third claim of the sixth plea in law at first instance as unfounded and, in any event, ineffective;
(iii) refer the case back to the General Court to examine the five other pleas in law; and (iv) reserve the costs.
16) The Polish Government considers that the right of interested parties to submit observations in a formal investigation must be examined in a more general manner as an essential element of good administration of justice under Article 41 of the Charter of Fundamental Rights of the European Union. In its procedures the Commission is required to respect the Charter, which imposes obligations on the Commission that are stricter in this respect than they were before the Charter’s entry into force. The Polish Government considers that, in Freistaat Sachsen (paragraph 55), the Court held that the Commission’s duty to allow interested parties to present observations is an essential procedural requirement. Next, in paragraph 56 of that judgment, the Court formulated an exception to that principle in the case of a non-substantial modification of the legal framework before the decision’s adoption. This exception should be interpreted strictly and should be rejected in the present case, given that the 2014 Guidelines brought about a substantial modification of the legal framework. Finally, the Commission’s behaviour infringed its rights of defence as a Member State, addressee of the contested decision.
51) Having said that, the respondents argue, in essence, that the position defended by the Commission is contrary to the Charter and to the fact that the Union is a community governed by the rule of law, and it impairs the right of interested parties (PLGK as the beneficiary of the aid) and of Poland to submit observations. Moreover, they submit that the Charter obliges the Commission to take into account the right of interested parties to be heard before a State aid decision.
52) However, suffice it to point out that the entry into force of the Charter did not change the nature of the rights conferred pursuant to Article 108(2) and (3) TFEU. Moreover, State aid control is not an administrative procedure initiated against the beneficiary of the aid, and the Charter is not intended to alter the nature of the review of State aid established by the FEU Treaty or to confer on third parties a right of scrutiny which Article 108 TFEU does not provide. ( 23 )