154 COMPETITION LAW IN TOURISM selective nature and also in the case of transparent and non-discriminatory rebate schemes33. A judgment of the General Court of the EU of 2014 put an end to the Commission’s restrictive approach. In its judgment of 9 September 2014 in the Lübeck Airport case34, the General Court annulled the decision of the European Commission based on the selectivity aspect of the airport charges system. In the contested decision to initiate the formal investigation procedure on measures granted by Lübeck Airport to airlines, the Commission considered that the system of airport charges under the 2006 Regulation on airport charges, applicable at the airport, was selective given the fact that this system was only applicable to airlines using that airport. The General Court rejected this position. First, it recalled that, in order to determine the selectivity of a measure, it is appropriate to examine whether that measure constitutes an advantage for certain undertakings in comparison with others that find themselves in a comparable legal and factual situation. In the case at hand, the General Court noticed that the German legal system provided that each airport operator shall draw up its own charge structure for an airport and that the 2006 Regulation could only concern charges for Lübeck Airport. The airlines flying on other German airports were subject to other regulations and were therefore not in a comparable situation to those of Lübeck Airport. According to the General Court, the mere fact that the 2006 Regulation applied only to airlines using the Lübeck Airport was not a relevant criterion to consider that it had a selective nature. The Commission challenged this judgment before the EU Court of Justice, which confirmed, in December 2016, the General Court’s position35. As a result, the European Commission adopted a new decision finding that the measures did not constitute aid due to the lack of selectivity36. When airports have sufficient autonomy to set their own charges, they may grant two types of rebates on airport charges: rebates for the opening of new routes and/or rebates based on the volume of passengers the airlines bring. 33 Decision of 20 February 2014, Marseille airport, SA.22932, OJ L/260, 27/09(2016. 34 Judgment of the General Court of 9 September 2014, Lübeck airport, T-461/12, ECLI:EU:T:2014:758. 35 Judgment of the Court of Justice of 21 December 2016, Lübeck airport, Case C-524/14 P, ECLI:EU:C:2016:971. 36 Decision of 22 February 2018, Lübeck airport – Alleged State aid to Ryanair, SA.31149 (2012/C), OJ L 238 of 21/09/2018.
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