74 LEGAL IMPACTS OF COVID-19 IN THE TOURISM INDUSTRY compatible under Article 107(2)(b) TFEU163, while the Swedish scheme provided for a guarantee for airlines under the Temporary Framework and Article 107(3)(b)164. The reasoning of Ryanair was the same in both cases165. Besides accusing the Commission to wrongly balancing the positive and negative effect of the aid, infringement of the duty to state reasons, and infringement of Article 108(2) by not opening a formal investigation procedure, the main plea was that the Commission allowed discrimination within the EU based on nationality. In the eye of Ryanair, this was is a clear breach of Article 18 TFEU and also Article 56 ensuring the free provision of services. Both schemes were only open for airlines having national (French or Swedish) licence, but not for airlines which operated flights to and from the two countries on the basis of a licence issued by another EU Member State. This is why these judgments have such high importance. They not only interpret what the Member States can do during a crisis, but also they analyse the manner how the measures would treat the negative effects of the crisis and whether such intervention is appropriate and proportionate, and whether the scope of a national measure can be limited. The General Court found the limitation of beneficiaries to airlines having national, French or Swedish, licence as justified, as from the viewpoint of the Member States in question they suffered the biggest losses and had the most flights cancelled. Thus, the General Court looked at these requirements not as discrimination among European air carriers having a licence issued by whichever Member State, but rather as a requirement for an institutional link between the damage caused by the national (e.g. French) restrictions and the principal place of business. In the Swedish case the General Court had a similar argument but as the measure was focusing on the remedying the impacts of the crisis, and not necessarily the past damage, it analysed how many flights were operated to and from Sweden by airlines having Swedish licence. It is no surprise that based on the statistics Swedish airlines accounted for the biggest share of passenger transport. Consequently, the General Court found that the Commission was right when it authorised Sweden’s aim to remedy the crisis while focussing on airlines being “capable of enabling the restoration of that economy and, in 163 Commission Decision of 31 March 2020 (C(2020) 2097 final, SA.56765 (2020/N) – France COVID-19 - Moratoire sur le paiement de taxes aéronautiques en faveur des entreprises de transport public aérien). 164 Commission decision of 11 April 2020 (C(2020) 2366 final, SA.56812 (2020/N) – Sweden COVID-19: Loan guarantee scheme to airlines). 165 Judgment in case T-259/20 Ryanair DAC v Commission (ECLI:EU:T:2021:92) and in case T-238/20 Ryanair DACv Commission (ECLI:EU:T:2021:91).
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