Background
Condor, a German leisure airline, received several aid measures during 2019–2021. Some addressed financial difficulties following the insolvency of its former parent, Thomas Cook; others compensated for pandemic-related travel restrictions. The 2020 COVID-19 compensation included two State-guaranteed loans totalling EUR 550 million. After the General Court annulled the Commission’s first approval of that compensation, the Commission adopted an amended decision on 26 July 2021 and identified overcompensation of EUR 91.745 million plus interest.
In a separate decision of the same date, C(2021) 5729 final, the Commission approved restructuring aid under Article 107(3)(c) TFEU and its Guidelines on State aid for rescuing and restructuring non-financial undertakings in difficulty. The measure modified the 2020 loans, wrote off EUR 90 million of loan debt and wrote off EUR 20.2 million of interest debt. Ryanair sought annulment. On 8 May 2024, the General Court rejected Ryanair’s first eight pleas as inadmissible but upheld its procedural-rights challenge in part. It held that the Commission should have had doubts about compliance with point 67 of the Guidelines, requiring equity-enhancing aid to give the State a reasonable share of future gains in value, and that those doubts also affected its assessment of measures limiting competition distortions. It annulled the approval without deciding Ryanair’s remaining discrimination-and-freedoms limb or its statement-of-reasons plea.
Condor appealed, supported in substance by the Commission and Germany. The Commission subsequently opened a formal investigation and, on 28 April 2025, adopted Decision (EU) 2025/2178, again finding the measure compatible with the internal market. The Court nevertheless held the appeal admissible: the later decision did not retroactively cure the annulled decision, whereas success on appeal would restore that decision’s legal effects from adoption.
The Court’s Holding
The Court rejected Condor’s first ground of appeal. Interpreting point 67 by its wording, context and purpose, it held that the provision covers debt write-offs as well as grants and capital injections because it applies to any State aid enhancing the beneficiary’s equity position. The General Court had conducted a legal review of that interpretation, not substituted its judgment for the Commission’s complex economic assessments. Point 68’s exception applies only to point 66, and repayment of debt not written off cannot itself satisfy point 67.
The Court nevertheless upheld the second ground. Point 67’s reasonable-share requirement applies only where equity remains after existing investors—incumbent shareholders and, where necessary, subordinated creditors—have absorbed losses. Recital 135 recorded that Thomas Cook lost the entire value of its shareholding and could receive no restructuring upside, while Condor’s creditors wrote off almost all their claims. The Commission had therefore implicitly but necessarily addressed the relevant burden-sharing and moral-hazard analysis; no further point 67 examination was required. The General Court erred in finding otherwise. That conclusion also required upholding the third ground because the supposed omission could no longer undermine the competition-distortion analysis.
Giving final judgment under Article 61 of the Statute, the Court rejected every subsidiary limb of Ryanair’s remaining negative-effects challenge. Attestor’s EUR 450 million financing was undisputedly 77% of the restructuring plan’s financing, exceeding the Guidelines’ normal 50% own-contribution benchmark. Ryanair had not explained why point 78 required its proposed additional fleet-reduction verification; its Attestor Group “one time, last time” assertion was unsubstantiated; and its reading of recital 148 was wrong because “measure” referred to Condor’s fleet reduction, not the aid. Its pandemic-related complaint was speculative, and alleged earlier Commission practice could not establish its claim.
The Court also rejected the discrimination, services and establishment challenge. Selecting Condor was part of the aid’s object, or at least an indissolubly linked modality, so any discriminatory effect had to be assessed through the Article 108 compatibility procedure rather than separately. Finally, the decision satisfied Article 296 TFEU: a no-objections decision need only explain why the Commission faced no serious compatibility difficulties. Objections to the substance or balancing of its reasoning were distinct from the sufficiency of its stated reasons.
Key Takeaways
- Point 67 covers equity-enhancing debt write-offs, but its future-gains requirement arises only when equity remains after existing investors absorb losses.
- The Court set aside EU:T:2024:301 and dismissed Ryanair’s entire action in T‑28/22; it did not merely remand the case.
- Legal interpretation of Commission guidelines remains judicially reviewable, while appeals do not ordinarily revisit the General Court’s factual assessments.
- Ryanair must pay the appeal costs of Condor, the Commission and Germany and the Commission’s first-instance costs; Germany and Condor bear their own first-instance costs.
Why It Matters
The judgment distinguishes the forms of aid covered by point 67 from the circumstances triggering its reasonable-share requirement. It prevents that requirement from automatically burdening new investors where former shareholders and relevant creditors have absorbed the losses, while preserving judicial review of the Commission’s interpretation of its own guidelines.
Procedurally, the decision also confirms that a later compatibility decision does not necessarily eliminate an appellant’s interest in restoring an earlier annulled approval. The Court refused to reopen the oral procedure merely because Condor disagreed with the Advocate General, finding that it already had sufficient information to decide the appeal.