Judgment of the General Court (Third Chamber) of 8 July 2026.#Ryanair DAC v European Commission.#State aid – Italian air transport market – Compensation scheme for airlines with an Italian operating licence – Decision not to raise any objections – Aid intended to make good the damage caused by an exceptional occurrence – Article 107(2)(b) TFEU – Eligibility condition relating to a minimum remuneration requirement for employees whose home base is located in Italy – Obligation to state reasons – Principle of non-discrimination – Free provision of services – Freedom of establishment – Assessment of damage – Causal link – Article 8 of Regulation (EC) No 593/2008.#Case T-268/21 RENV.

JUDGMENT OF THE GENERAL COURT (Third Chamber)

8 July 2026 (*)

( State aid – Italian air transport market – Compensation scheme for airlines with an Italian operating licence – Decision not to raise any objections – Aid intended to make good the damage caused by an exceptional occurrence – Article 107(2)(b) TFEU – Eligibility condition relating to a minimum remuneration requirement for employees whose home base is located in Italy – Obligation to state reasons – Principle of non-discrimination – Free provision of services – Freedom of establishment – Assessment of damage – Causal link – Article 8 of Regulation (EC) No 593/2008 )

In Case T‑268/21 RENV,

Ryanair DAC, established in Swords (Ireland), represented by F.-C. Laprévote, E. Vahida, S. Rating, C. Cozzani and T. Capelli, lawyers,

applicant,

v

European Commission, represented by L. Flynn, J. Carpi Badía and F. Tomat, acting as Agents,

defendant,

supported by

Neos SpA, established in Somma Lombardo (Italy),

and

Blue Panorama Airlines SpA, established in Somma Lombardo,

represented by M. Merola, lawyer,

and by

Air Dolomiti SpA – Linee Aeree Regionali Europee, established in Villafranca di Verona (Italy), represented by E. Spinelli, G. Zampa and G. Candeloro, lawyers,

interveners,

THE GENERAL COURT (Third Chamber),

composed of K. Kowalik-Bańczyk (Rapporteur), President, H. Cassagnabère and T. Pavelin, Judges,

Registrar: S. Spyropoulos, Administrator,

having regard to the judgment of 23 January 2025, Neos v Ryanair and Commission (C‑490/23 P, EU:C:2025:32),

having regard to the written part of the procedure,

further to the hearing on 22 January 2026,

gives the following

Judgment

1        By its action under Article 263 TFEU, the applicant, Ryanair DAC, seeks the annulment of Commission Decision C(2020) 9625 final of 22 December 2020 on State aid SA.59029 (2020/N) – Italy – COVID-19: Compensation scheme for airlines with an Italian operating licence (‘the contested decision’).

I.      Background to the dispute

2        By decreto-legge n. 34 – Misure urgenti in materia di salute, sostegno al lavoro e all’economia, nonché’ di politiche sociali connesse all’emergenza epidemiologica da COVID-19 (Decree-Law No 34 on urgent health, labour support, economy and social-policy measures related to the COVID-19 epidemiological emergency) of 19 May 2020 (Ordinary Supplement to GURI No 128 of 19 May 2020, p. 1), as amended and converted into law by Law No 77 of 17 July 2020 (Ordinary Supplement to GURI No 180 of 18 July 2020, p. 1), the Italian authorities established, inter alia, a fund of EUR 130 million for compensation of the damage suffered by the air transport sector in the context of the COVID-19 pandemic.

3        On 14 August 2020, the Italian authorities adopted decreto-legge n. 104 – Misure urgenti per il sostegno e il rilancio dell’economia (Decree-Law No 104 laying down urgent measures to support and relaunch the economy) of 14 August 2020 (Ordinary Supplement to GURI No 203, p. 1). That decree-law authorised, pending completion of the procedure provided for in Article 108(3) TFEU, the Minister for Infrastructure and Transport of the Italian Republic to grant, in advance, subsidies financed by the fund created by Decree-Law No 34 to a total amount not exceeding EUR 50 million to airlines satisfying the eligibility conditions set out in Article 198 of Decree-Law No 34.

4        On 15 October 2020, in accordance with Article 108(3) TFEU, the Italian Republic notified the European Commission of an aid scheme consisting in subsidies paid out of the fund created by Decree-Law No 34 (‘the scheme at issue’). That scheme, the legal basis of which is Article 198 of Decree-Law No 34, is intended to make good the damage suffered by airlines eligible for compensation as a result of the travel restrictions and other containment measures put in place to limit the spread of the COVID-19 pandemic.

5        The conditions of eligibility for the scheme at issue, as set out in Article 198 of Decree-Law No 34, are as follows. First, the airline must not be the beneficiary of a fund created by another decree-law providing for compensation for damage caused by the COVID‑19 pandemic for airlines holding a licence issued by the Italian authorities and entrusted with the performance of public service obligations on the date of entry into force of that decree-law. Second, the airline must hold a valid air operator’s certificate and an Italian licence. Third, the capacity of the airline’s aircraft must be greater than 19 places. Fourth, the airline must apply to its employees whose home base is located in Italy and to employees of third-party undertakings taking part in its activity remuneration which may not be lower than the minimum remuneration established by the national collective agreement applicable to the air transport sector, as concluded by the employers’ organisations and trade unions considered to be the most representative at national level (‘the minimum remuneration requirement’).

6        On 22 December 2020, the Commission, by the contested decision, decided not to raise any objections to the scheme at issue on the ground that that measure, including the eligibility conditions, was compatible with the internal market on the basis of Article 107(2)(b) TFEU. The Commission stated in that decision that the Italian authorities had identified three airlines that met the eligibility conditions for the scheme at issue, namely Air Dolomiti SpA – Linee Aeree Regionali Europee (‘Air Dolomiti’), Blue Panorama Airlines SpA (‘Blue Panorama’) and Neos SpA, which are interveners in the present case.

II.    Earlier proceedings before the General Court and the Court of Justice

7        By application lodged at the Registry of the General Court on 18 May 2021, the applicant brought an action for annulment of the decision at issue.

8        By judgment of 24 May 2023, Ryanair v Commission (Italy; aid scheme; COVID-19) (T‑268/21, ‘the initial judgment’, EU:T:2023:279), the General Court upheld the first part of the fourth plea, alleging infringement of the obligation to state reasons laid down in the second paragraph of Article 296 TFEU, without examining the other pleas made in the action. In that regard, it found in essence that the contested decision was vitiated by an insufficient statement of reasons concerning the analysis of the fourth condition for eligibility for the scheme at issue, namely the one relating to the minimum remuneration requirement.

9        By judgment of 23 January 2025, Neos v Ryanair and Commission (C‑490/23 P, ‘the judgment on appeal’, EU:C:2025:32), on appeal by Neos, the Court of Justice set aside the initial judgment, reserved the costs and referred the case back to the General Court.

III. Forms of order sought

10      The applicant claims that the General Court should:

–        annul the contested decision;

–        order the Commission to pay the costs of the initial proceedings before the General Court, of the appeal before the Court of Justice and of the present proceedings;

–        order the interveners to bear their own costs relating to the initial proceedings before the General Court, to the appeal before the Court of Justice and to the present proceedings.

11      The Commission, Neos and Air Dolomiti contend that the General Court should:

–        dismiss the action;

–        order the applicant to pay the costs of the initial proceedings before the General Court, of the appeal before the Court of Justice and of the present proceedings.

12      Blue Panorama, in the initial proceedings before the General Court, contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs relating to the initial proceedings before the General Court.

IV.    Law

A.      Preliminary observations

1.      The scope of the dispute following referral

13      In support of the action, the applicant raises four pleas in law, alleging, first, infringement of the principles of non-discrimination, the freedom to provide services and the freedom of establishment; second, infringement of Article 107(2)(b) TFEU and a manifest error of assessment of the proportionality of the aid in the light of the damage caused by the COVID-19 pandemic; third, infringement of its procedural rights; and, fourth, a failure to state reasons.

14      It should be borne in mind that, under Article 61 of the Statute of the Court of Justice of the European Union, applicable to the General Court by virtue of the first paragraph of Article 53 of that Statute, if the appeal is well founded and the case is referred back to the General Court for it to rule on the dispute, the General Court is bound by the decision of the Court of Justice on points of law. Thus, once the Court of Justice has set aside a judgment or an order and referred the case back to the General Court, the latter is seised, pursuant to Article 215 of the Rules of Procedure of the General Court, of the case by the judgment of the Court of Justice and must rule on all the pleas in law in support of annulment raised by the applicant, apart from those elements of the operative part not set aside by the Court of Justice and the considerations on which those elements are essentially founded, as those elements have acquired the authority of res judicata (see judgment of 13 September 2023, Venezuela v Council, T‑65/18 RENV, EU:T:2023:529, paragraph 24 and the case-law cited).

15      In the present case, the Court of Justice, in the judgment on appeal, set aside the initial judgment on the ground that the General Court had made two errors of law in finding, in its examination of the first part of the applicant’s fourth plea, that the Commission had failed to state sufficient reasons in the contested decision with respect to considerations related to the minimum remuneration requirement. In the first place, the Court of Justice, in contrast to the General Court in the initial judgment, held that the reasoning which had led the Commission to assert in the contested decision, first, in recital 93 thereof, that the minimum remuneration requirement was indissolubly linked to the scheme at issue and, second, in recital 95 of that decision, that that requirement was not inherent in the objective of that scheme, was sufficiently reasoned. In the second place, the Court of Justice held, first, that, while the contested decision included a detailed examination of the compatibility of the minimum remuneration requirement solely in the light of Article 8 of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ 2008 L 177, p. 6; ‘the Rome I Regulation’), that, nevertheless, did not mean that that was the only provision of EU law which the Commission had considered as relevant for that examination. The Court of Justice added, second, that the Commission was not required to provide specific reasoning as regards all the provisions and principles of EU law that may be infringed by the grant of aid and, in the present case, Article 56 TFEU.

16      It is apparent from point 2 of the operative part of the judgment on appeal that there is no need to rule in the present judgment, after referral, on the first part of the fourth plea, on which the Court of Justice has already ruled, as set out in paragraph 15 above. By contrast, in accordance with point 2 of the operative part of the judgment on appeal and paragraph 66 thereof, it is necessary to examine the first three pleas and the second part of the fourth plea raised by the applicant.

2.      Admissibility of the action

17      It should be observed that, although the Commission does not dispute the admissibility of the action in so far as it seeks to safeguard the applicant’s procedural rights, the Commission does not acknowledge that the applicant has standing to challenge the contested decision on the merits.

18      In that regard, it should be recalled that the Courts of the European Union are entitled to assess, according to the circumstances of each case, whether the proper administration of justice justifies the dismissal of the action on its merits without first ruling on its admissibility (see, to that effect, judgments of 26 February 2002, Council v Boehringer, C‑23/00 P, EU:C:2002:118, paragraphs 51 and 52, and of 14 September 2016, Trajektna luka Split v Commission, T‑57/15, not published, EU:T:2016:470, paragraph 84). In the present case, since the action is in any event unfounded, for the reasons set out below, and since an assessment of the admissibility of the action involves a complex analysis, it is appropriate, in the interests of procedural economy, to examine at the outset the pleas raised by the applicant, without first ruling on the admissibility of the action, and in particular on the applicant’s standing to bring proceedings.

B.      First plea in law, alleging infringement of the principles of non-discrimination, the freedom to provide services and the freedom of establishment

19      By the first plea, the applicant claims that the scheme at issue infringes the principles of non-discrimination, the freedom to provide services and the freedom of establishment. It is appropriate to examine, first, the arguments relating to infringement of the principle of non-discrimination and then, together, those relating to infringement of the principles of the freedom to provide services and of the freedom of establishment.

1.      Infringement of the principle of non-discrimination

20      The applicant alleges infringement of the principle of non-discrimination by the scheme at issue on the ground, in essence, that it, first, benefits only operators holding a licence issued by the Italian authorities, to the detriment of operators from other Member States, and, second, includes the eligibility condition relating to the minimum remuneration requirement.

(a)    Infringement of the principle of non-discrimination by the scheme at issue in so far as it is reserved to holders of an Italian licence

21      The applicant submits that the scheme at issue treats its three beneficiaries differently from other airlines operating in Italy even though the latter are in a comparable situation in the light of the objective of Article 107(2)(b) TFEU. That leads to discrimination. According to the applicant, a difference in treatment based, as in the present case, on the Member State that has issued an operating licence to an airline leads, in reality, to the same result as a difference in treatment based on nationality, as is recognised by the case-law.

22      Moreover, the applicant claims that that difference in treatment was permitted without the contested decision establishing its necessity or proportionality. The applicant adds, in that regard, that it suffered more damage than the beneficiaries of the scheme at issue since its market share in Italy is much greater than theirs.

23      The Commission, supported by the interveners, contests the arguments put forward by the applicant.

24      In that regard, in the first place, it should be borne in mind that State aid which contravenes provisions of the Treaty or general principles of EU law cannot be declared compatible with the internal market (see, to that effect, judgment of 15 April 2008, Nuova Agricast, C‑390/06, EU:C:2008:224, paragraphs 50 and 51).

25      The principle of non-discrimination requires that comparable situations should not be treated differently and that different situations should not be treated in the same way unless such treatment is objectively justified (judgment of 15 April 2008, Nuova Agricast, C‑390/06, EU:C:2008:224, paragraph 66; see also, to that effect, judgment of 5 June 2018, Montero Mateos, C‑677/16, EU:C:2018:393, paragraph 49).

26      The elements which characterise different situations, and hence their comparability, must in particular be determined and assessed in the light of the subject matter and purpose of the EU act which makes the distinction in question. The principles and objectives of the field to which the act relates must also be taken into account (judgment of 16 December 2008, Arcelor Atlantique et Lorraine and Others, C‑127/07, EU:C:2008:728, paragraph 26).

27      Moreover, it should be borne in mind that the principle of proportionality, which is one of the general principles of EU law, requires that acts adopted by EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued by the legislation in question (judgment of 17 May 1984, Denkavit Nederland, 15/83, EU:C:1984:183, paragraph 25); where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (judgment of 30 April 2019, Italy v Council (Fishing quota for Mediterranean swordfish), C‑611/17, EU:C:2019:332, paragraph 55).

28      The classification of a national measure as ‘State aid’, within the meaning of Article 107(1) TFEU, requires, inter alia, that that measure must confer a selective advantage on the recipient while distorting or threatening to distort competition (judgment of 23 November 2023, Ryanair v Commission, C‑210/21 P, EU:C:2023:908, paragraph 32). In particular, the requirement of selectivity arising from Article 107(1) TFEU presupposes that the Commission will establish that the economic advantage, understood in the broad sense, arising directly or indirectly from a particular measure specifically benefits one or more undertakings. It falls to the Commission to show, in particular, that the measure in question creates differences between undertakings which, with regard to the objective of the measure, are in a comparable situation. It is necessary therefore that the advantage be granted selectively and that it be liable to place certain undertakings in a more favourable situation than that of others (judgment of 23 November 2023, Ryanair v Commission, C‑210/21 P, EU:C:2023:908, paragraph 34).

29      However, Article 107(2) and (3) TFEU provides for certain derogations from the principle, set out in paragraph 1 of that article, that State aid is incompatible with the internal market, such as that set out in Article 107(2)(b) TFEU, concerning aid ‘to make good the damage caused by natural disasters or exceptional occurrences’. Accordingly, State aid granted for the purposes of and in accordance with the conditions laid down by Article 107(2)(b) TFEU is compatible with the internal market. It follows that, unless that provision is to be deprived of all practical effect, State aid which is granted for the purposes of an objective recognised therein and within the limits of what is necessary and proportionate to the achievement of that objective, cannot be held to be incompatible with the internal market for effects which are inherent in any State aid, that is to say, inter alia, for reasons relating to whether the aid is selective or would distort competition (see, to that effect, judgment of 23 November 2023, Ryanair v Commission, C‑210/21 P, EU:C:2023:908, paragraphs 35 and 36).

30      Therefore, aid cannot be considered incompatible with the internal market for reasons that are solely linked to whether the aid is selective or distorts or threatens to distort competition (judgment of 23 November 2023, Ryanair v Commission, C‑210/21 P, EU:C:2023:908, paragraph 37).

31      It is true that the procedure provided for in Article 108 TFEU must never produce a result that is contrary to the specific provisions of the FEU Treaty. Accordingly, State aid which, as such or by reason of some modalities thereof, contravenes provisions or general principles of EU law cannot be declared compatible with the internal market (judgment of 23 November 2023, Ryanair v Commission, C‑210/21 P, EU:C:2023:908, paragraph 38).

32      However, as regards Article 18 TFEU specifically, which prohibits, within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality, it is settled case-law that that article is intended to apply independently only to situations governed by EU law in respect of which the FEU Treaty lays down no specific prohibition of discrimination (judgment of 23 November 2023, Ryanair v Commission, C‑210/21 P, EU:C:2023:908, paragraph 39 and the case-law cited).

33      Since Article 107(2) and (3) TFEU provides for derogations from the principle, referred to in paragraph 1 of that article, that State aid is incompatible with the internal market, and thus allows, in particular, differences in treatment between undertakings, subject to fulfilment of the requirements laid down by those derogations, those derogations must be regarded as ‘special provisions’ provided for in the Treaties, within the meaning of the first paragraph of Article 18 TFEU (judgment of 23 November 2023, Ryanair v Commission, C‑210/21 P, EU:C:2023:908, paragraph 40).

34      It follows that it is necessary in the present case only to examine whether the difference in treatment brought about by the scheme at issue is permitted under Article 107(2)(b) TFEU. More specifically, that assessment involves verifying, first, that the objective of the scheme at issue meets the requirements laid down in Article 107(2)(b) TFEU and, second, in the light of the applicant’s arguments in the present plea, that the scheme’s eligibility condition related to holding an Italian licence, contested by the applicant, is such as to enable that objective to be achieved and does not go beyond what is necessary to attain it.

35      In that regard, as regards, in the first place, the objective of the scheme at issue, it should be observed that it is apparent from the contested decision, in particular from recital 3 thereof, that that objective consists, in accordance with the wording of Article 107(2)(b) TFEU, in making good the damage suffered by certain airlines as a result of the exceptional occurrence represented by the COVID-19 pandemic. In the present case, the applicant does not dispute the fact that compensation for damage resulting from the introduction of travel restrictions and other containment measures in order to reduce the spread of the COVID-19 pandemic makes it possible to make good the damage caused by that pandemic. Nor does the applicant dispute that the COVID-19 pandemic constitutes an exceptional occurrence within the meaning of Article 107(2)(b) TFEU.

36      As regards, in the second place, the condition of eligibility for the scheme at issue relating to the holding of an Italian licence, it must be observed that that scheme was intended to compensate for the damage suffered by certain airlines holding such a licence as a result of the travel restrictions and other containment measures for a specific period, namely from 1 March to 15 June 2020 (‘the period at issue’).

37      In that regard, it is apparent from the case-law that the objective pursued by Article 107(2)(b) TFEU, namely to compensate for the disadvantages caused directly by an exceptional occurrence, does not prevent a Member State, so long as it is not dictated by a desire to favour one undertaking over its competitors, from choosing, for objective reasons, to grant only a single or certain undertakings the benefit of a measure adopted under that provision (see, to that effect, judgment of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 24).

38      Moreover, a contrary interpretation of Article 107(2)(b) TFEU would deprive that provision of much of its effectiveness. If that provision only allowed a Member State the option of granting aid to all the victims of an exceptional occurrence without being able to reserve that aid to a limited number of undertakings, or even just one, Member States would often be deterred from making use of that option because of the costs involved in the grant, in such circumstances, of significant aid to all undertakings that have suffered damage coming under its authority (judgment of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 25).

39      In the present case, as apparent from recitals 5 to 15 of the contested decision, the period at issue saw the general introduction of containment and border closure measures adopted by the Italian Republic and other EU Member States and third countries, which, inter alia, adopted measures prohibiting or restricting connections to or from Italy. As detailed in recitals 16 to 20 and 61 to 79 of the contested decision, the travel restrictions and other containment measures in force during the period at issue led to the cancellation of the flights of Italian airlines throughout that period. The beneficiaries of the scheme at issue, being holders of an Italian licence, were therefore severely affected by those restrictions during the period at issue, as stated in recitals 17 and 18 of the contested decision, since they operated a very large proportion of their flights within, to and from Italy, unlike foreign airlines such as the applicant. Moreover, the applicant itself acknowledges in its reply that a significant volume of the routes operated by Blue Panorama and Neos were domestic flights within Italy.

40      Furthermore, as stated by the Commission in the defence, the condition of eligibility for the scheme at issue of holding an Italian licence is also justified by the fact that such a licence presupposes that the principal place of business of the airlines is on Italian territory. That enables the Italian authorities granting the aid under the scheme at issue to control the manner in which it is used by the beneficiaries of that scheme (see, by analogy, judgment of 17 February 2021, Ryanair v Commission, T‑259/20, EU:T:2021:92, paragraph 37).

41      As regards the question whether the detailed rules of the scheme at issue go beyond what is necessary to achieve the objective pursued, it should be observed that the amounts to be allocated to beneficiaries under that scheme would not exceed the damage suffered by them as a result of the travel restrictions and other containment measures. As is apparent in particular from recitals 29 to 39 and 80 to 90 of the contested decision, the scheme at issue contains a precise and prudent methodology for calculating the damage eligible for compensation and safeguards to avoid a cumulation of aid or an overcompensation of damage, including ex post mechanisms. Accordingly, the difference in treatment brought about by the scheme at issue in favour of certain airlines holding an Italian licence is appropriate for making good the damage resulting from the travel restrictions and other containment measures affecting air transport in Italy during the period at issue and does not go beyond what is necessary to attain the legitimate objective pursued by that scheme.

42      It follows that the applicant has not shown that the scheme at issue is contrary to the principle of non-discrimination on the ground that it benefits only operators holding an Italian licence.

(b)    Infringement of the principle of non-discrimination on account of the minimum remuneration requirement

43      The applicant submits that the eligibility condition of the scheme at issue relating to the minimum remuneration requirement gives rise to discrimination against airlines established in Member States other than Italy which operate in that country but which do not satisfy that condition. As stated in the complaint of the Italian Low Fares Airline Association (AICALF) of 26 June 2020 sent to the Commission, the members of that association, including the applicant, did not participate in the conclusion of the national collective agreement providing for the minimum remuneration requirement and do not apply that requirement. According to the applicant, those airlines therefore cannot benefit from the scheme at issue, even though they have also suffered damage as a result of the COVID-19 pandemic.

44      The Commission, supported by the interveners, contests the arguments put forward by the applicant.

45      In the present case, the Commission stated in recital 27(d) of the contested decision that an airline, in order to benefit from the scheme at issue, had to apply to its employees, as well as to employees of third-party undertakings involved in its activities whose home base, within the meaning of Commission Regulation (EU) No 965/2012 of 5 October 2012 laying down technical requirements and administrative procedures related to air operations pursuant to Regulation (EC) No 216/2008 of the European Parliament and of the Council (OJ 2012 L 296, p. 1), is located in Italy, remuneration which could not be lower than the minimum remuneration set by the national collective agreement applicable to the aviation sector, entered into by the employers’ organisations and trade unions considered to be the most representative at national level.

46      In recitals 94 and 95 of the contested decision, the Commission explained that it was necessary to examine the compatibility of the minimum remuneration requirement, which is expressly provided for in Article 198 of Decree-Law No 34 as a condition for eligibility for the scheme at issue, with provisions of EU law other than Articles 107 and 108 TFEU. According to the Commission, that examination was justified by the fact that the minimum remuneration requirement was not inherent in the objective of the scheme at issue and that AICALF had filed a complaint concerning Article 203 of Decree-Law No 34. It stated that the wording of the latter provision required carriers operating on Italian territory to ensure a minimum remuneration for their workers whose home base is in Italy, echoing the wording of Article 198 of that decree-law.

47      In that examination of whether the minimum remuneration requirement was compatible with EU law, the Commission stated, in recital 98 of the contested decision, that, pursuant to the Rome I Regulation, all airlines which employed workers whose home base was located in Italy had to comply with the minimum protection afforded under Italian law, no matter the nationality of the airlines or the law applicable to the employment contract. It then concluded, in recital 99 of the contested decision, that the minimum remuneration requirement did not, prima facie, infringe other provisions of EU law.

48      As a preliminary point, it is necessary to reject the interveners’ argument that the minimum remuneration requirement was an aspect that was indissolubly linked to the object of the scheme at issue, such that the Commission was not required to assess it separately and that its effect on the compatibility of the aid considered as a whole had to be determined solely in the light of Article 107(2) TFEU. It is apparent from recital 3 of the contested decision that the objective of the scheme at issue was to make good the damage suffered by certain airlines as a result of the exceptional occurrence represented by the COVID-19 pandemic, which is not disputed by the interveners. However, the contested decision contains no element to support the claim that the objective of the minimum remuneration requirement, which is a measure to protect workers in the air transport sector, as observed in recital 95 of that decision, was inherent in the objective of the scheme at issue. Moreover, it is neither apparent from the documents before the Court, and nor have the interveners established, that the imposition of a minimum remuneration for workers whose home base is situated in Italy is inherent in the objective of making good the abovementioned damage suffered by certain airlines. Consequently, contrary to what is claimed by the interveners, the Commission was entitled to consider that it was necessary to examine the compatibility of that requirement with provisions of EU law other than Articles 107 and 108 TFEU.

49      Furthermore, it should be found that the examination of the minimum remuneration requirement in the contested decision shows that that obligation does not by itself entail a difference in treatment according to the nationality of the airlines. As is observed, in essence, in recital 98 of the contested decision, and as is argued by the Commission and the interveners, the scope of application of the minimum remuneration requirement is not determined by the nationality of the airline, but by the home base of its employees, which must be located in Italy. It should also be stated that although it is Italian companies alone that may benefit from the scheme at issue, that is not because of the minimum remuneration requirement, but rather because of another condition for applying that scheme, namely the one related to the holding of an Italian licence. Consequently, it must be held that the discrimination claimed by the applicant, allegedly resulting from the minimum remuneration requirement, has no basis in fact.

50      It follows that the complaint alleging infringement of the principle of non-discrimination must be rejected in its entirety.

2.      Infringement of Article 15 of Regulation (EC) No 1008/2008 and of the principles of the freedom to provide services and of the freedom of establishment

51      The applicant alleges that the scheme at issue infringes the principles of the freedom to provide services and of the freedom of establishment because, in essence, it, first, benefits only operators holding a licence issued by the Italian authorities, to the detriment of foreign operators, and, second, it is subject to compliance with the minimum remuneration requirement.

(a)    Infringement of Article 15 of Regulation No 1008/2008 and of the principles of the freedom to provide services and the freedom of establishment by the scheme at issue in so far as it is reserved to holders of an Italian licence

52      The applicant submits that, in so far as the scheme at issue grants an advantage to airlines which have their principal place of business in Italy, as compared with those operating in that country under the principle of the freedom to provide services or the freedom of establishment, it restricts the freedom to provide airline services enshrined in Article 15 of Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community (OJ 2008 L 293, p. 3) and the freedom of establishment. Inasmuch as that scheme is discriminatory and disproportionate, the restriction on the freedom to provide services and the freedom of establishment is unjustified.

53      The Commission, supported by the interveners, contests the arguments put forward by the applicant.

54      In that regard, it should be observed as a preliminary point that the first paragraph of Article 56 TFEU provides that ‘ … restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended’.

55      Article 58(1) TFEU states that ‘freedom to provide services in the field of transport shall be governed by the provisions of the Title relating to transport’.

56      As is clear from the case-law of the Court of Justice, the very purpose of Regulation No 1008/2008 is to define the conditions for applying in the air transport sector the principle of the freedom to provide services (see, to that effect, judgment of 6 February 2003, Stylianakis, C‑92/01, EU:C:2003:72, paragraph 24 and the case-law cited). Article 15(1) of that regulation provides that ‘Community air carriers shall be entitled to operate intra-Community air services’.

57      The first paragraph of Article 49 TFEU provides that ‘… restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited’.

58      Furthermore, as pointed out in paragraph 31 above, the procedure under Article 108 TFEU must never produce a result which is contrary to the specific provisions of the Treaty. Accordingly, State aid which, as such or by reason of some modalities thereof, contravenes provisions or general principles of EU law cannot be declared compatible with the internal market (judgment of 23 November 2023, Ryanair v Commission, C‑210/21 P, EU:C:2023:908, paragraph 82).

59      However, the Court of Justice has previously held that the restrictive effects which an aid measure had on the freedom to provide services or the freedom of establishment still did not constitute a restriction prohibited by the FEU Treaty, since it could be inherent in the very nature of State aid, such as its selective nature (judgment of 28 September 2023, Ryanair v Commission, C‑321/21 P, EU:C:2023:713, paragraph 120).

60      Where the modalities of an aid measure are so indissolubly linked to the object of the aid that it is impossible to evaluate them separately, their effect on the compatibility or incompatibility of the aid viewed as a whole with the internal market must therefore of necessity be determined by means of the procedure prescribed in Article 108 TFEU (see judgment of 23 November 2023, Ryanair v Commission, C‑210/21 P, EU:C:2023:908, paragraph 84 and the case-law cited).

61      In the present case, the holding of an Italian licence did not in itself constitute the objective of the scheme at issue, but was a condition for being eligible for that scheme. That criterion was as such indissolubly linked to the object of that scheme, which was, in general, to make good the damage in the air transport sector resulting from an exceptional occurrence, namely the COVID-19 pandemic, and, more specifically, to make good the damage resulting from the travel restrictions and other containment measures adopted by the Italian Government and the governments of other countries in order to deal with that pandemic. It follows that the effect of that eligibility criterion of the aid scheme at issue on the internal market cannot be examined separately from the effect of the compatibility of that aid scheme as a whole with the internal market by means of the procedure prescribed in Article 108 TFEU (see, to that effect, judgment of 23 November 2023, Ryanair v Commission, C‑210/21 P, EU:C:2023:908, paragraph 85).

62      It follows from the aforementioned reasons and from the case-law cited in paragraphs 29 and 30 above that, in order to establish that the scheme at issue constituted an obstacle to the free provision of services or free establishment, because it benefited only airlines holding an operating licence issued by Italy and not airlines established in other Member States, it must be demonstrated in the present case that that measure produced restrictive effects which went beyond those inherent in State aid granted in accordance with the requirements laid down in Article 107(2)(b) TFEU (see, to that effect, judgment of 23 November 2023, Ryanair v Commission, C‑210/21 P, EU:C:2023:908, paragraph 86).

63      However, the arguments made by the applicant in support of its first plea seek, as a whole, to criticise the scheme at issue inasmuch as only airlines holding an Italian licence are eligible for it, and to criticise the restrictive effects of that eligibility criterion on the freedom to provide services, even though such effects are inherent in the selective nature of that scheme. Accordingly, the applicant does not demonstrate that the scheme at issue, by benefiting only airlines holding an operating licence issued by Italy, would produce restrictive effects going beyond those inherent in State aid granted under Article 107(2)(b) TFEU.

64      Furthermore, as the interveners observe, the applicant does not explain how the fact that the scheme at issue benefits only airlines holding an Italian licence is such as to discourage it from providing services to and from Italy or from exercising its freedom of establishment in that Member State.

65      It follows that the applicant has not shown that the scheme at issue constitutes an obstacle to the freedom to provide services, in breach, in particular, of Article 15 of Regulation No 1008/2008, or to the freedom of establishment, inasmuch as it benefits only operators holding a licence issued by the Italian authorities.

(b)    Infringement of Article 15 of Regulation No 1008/2008 and of the principles of the freedom to provide services and the freedom of establishment owing to the minimum remuneration requirement

66      The applicant submits that the eligibility condition for the scheme at issue relating to the minimum remuneration requirement is contrary to the freedom to provide services, as enshrined in Article 15 of Regulation No 1008/2008, and to free establishment, and that it cannot be justified on the grounds of public policy, public safety or public health. In view of the discriminatory nature of that requirement, the restriction on the aforementioned principles cannot be justified by an overriding requirement in the public interest, such as the protection of workers or the prevention of social dumping.

67      In its observations on the referral, the applicant adds that the Commission erred in its assessment of the justification of that restriction on the freedom to provide services by failing to take account of certain relevant issues in that regard. First, it submits that the minimum remuneration requirement is not appropriate for ensuring the protection of workers in the light of Article 3(1) of Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (OJ 1997 L 18, p. 1) since it resulted from a collective agreement entered into by employers’ organisations and trade unions which are not sufficiently representative of employees in the sector in question. Second, the Commission failed to demonstrate that the minimum remuneration requirement was justified by the cost of living in the Member State where the services are performed. Third, the Commission did not examine the proportionality of that requirement by comparing the overall conditions enjoyed by the workers of operators from other Member States. The applicant adds that those same errors also vitiate the Commission’s assessment of the compatibility of the minimum remuneration requirement with the principle of free establishment.

68      The Commission, supported by the interveners, contests the arguments put forward by the applicant.

69      As a preliminary point, it is necessary to reject the Commission’s argument, put forward in its response to the measures of organisation of procedure adopted on the basis of Article 88 of the Rules of Procedure and reiterated at the hearing, according to which the applicant’s arguments in the observations on the referral, claiming that the minimum remuneration requirement is incompatible with the principles of the freedom to provide services and the freedom of establishment, are inadmissible.

70      In that regard, according to the case-law, although, following a referral judgment of the Court of Justice, the parties are not entitled, in principle, to rely on pleas which were not raised in the procedure which gave rise to the judgment of the General Court set aside by the Court of Justice, a plea which may be regarded as amplifying a plea put forward previously, whether directly or by implication, in the original application and which is closely connected therewith must be declared admissible (see judgment of 26 January 2022, Intel Corporation v Commission, T‑286/09 RENV, EU:T:2022:19, paragraph 106 and the case-law cited). It must be stated, as the applicant did at the hearing, that the argument, according to which the minimum remuneration requirement is contrary to the principles of the freedom to provide services and the freedom of establishment, is clearly apparent from paragraphs 98 and 101 of the application, with the result that this additional line of argument raised in that regard in the observations on the referral constitutes an amplification of that argument and is closely connected with it. That line of argument is thus admissible, contrary to what the Commission maintains.

71      In the present case, as stated in paragraphs 45 to 47 above, the Commission explained in recitals 94 and 95 of the contested decision that it was necessary to examine the compatibility of the minimum remuneration requirement with provisions of EU law other than Articles 107 and 108 TFEU since that requirement was not inherent in the objective of the measure at issue and since the AICALF had lodged a complaint concerning Article 203 of Decree-Law No 34, which imposed a minimum remuneration obligation in respect of air transport sector workers whose home base was located in Italy, in the same way as the minimum remuneration requirement. In recitals 96 to 99 of the contested decision, the Commission considered that the requirement at issue prima facie complied with the protection granted to employees under the Rome I Regulation and did not infringe other provisions of EU law.

72      It is apparent from that summary of the grounds of the contested decision relating to the minimum remuneration requirement that, although the Commission did not specifically assess the compliance of that requirement with the principles of the freedom to provide services and the freedom of establishment, by stating in recital  99 of the contested decision that that requirement did not breach other provisions of EU law, it implicitly but necessarily considered that that requirement did not infringe any of the principles referred to above (see, to that effect, judgment on appeal, paragraphs 45 and 57).

73      The applicant disputes the Commission’s assessment, observing, in essence, that the minimum remuneration requirement is liable to restrict the freedom to provide services, as enshrined in Article 15 of Regulation No 1008/2008, and free establishment, and that the Commission failed to fulfil its obligation to assess whether that requirement was justified.

74      In the first place, it should be borne in mind, according to the case-law, that the principle of the freedom to provide services precludes the application of any national legislation which has the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State, irrespective of whether there is discrimination on the grounds of nationality or residence (see judgment of 6 February 2003, Stylianakis, C‑92/01, EU:C:2003:72, paragraph 25 and the case-law cited).

75      It is also consistent case-law that the freedom to provide services requires not only the elimination of all discrimination on grounds of nationality against providers of services who are established in another Member State, but also the abolition of any restriction, even if it applies without distinction to national providers of services and to those of other Member States, which is liable to prohibit, impede or render less advantageous the activities of a provider of services established in another Member State where it lawfully provides similar services (see judgment of 11 December 2019, TV Play Baltic, C‑87/19, EU:C:2019:1063, paragraph 35 and the case-law cited).

76      The application of the host Member State’s domestic legislation to service providers is liable to prohibit, impede or render less attractive the provision of services by persons or undertakings established in other Member States when it involves expenses and additional administrative and economic burdens (see judgment of 24 January 2002, Portugaia Construções, C‑164/99, EU:C:2002:40, paragraph 18 and the case-law cited).

77      A restriction on the freedom of establishment and the freedom to provide services may be justified where it serves overriding requirements relating to the public interest, is suitable for securing the attainment of the objective which it pursues and does not go beyond what is necessary in order to attain it (see judgment of 28 April 2009, Commission v Italy, C‑518/06, EU:C:2009:270, paragraph 72 and the case-law cited; see also, to that effect, judgment of 23 November 1999, Arblade and Others, C‑369/96 and C‑376/96, EU:C:1999:575, paragraph 35 and the case-law cited).

78      In that regard, in the first place, it must be stated that the applicant has failed to explain how the minimum remuneration requirement would have the effect of making the provision of air transport services ‘between Member States more difficult than the provision of services purely within one Member State’ or how it would be ‘liable to prohibit, impede or render less advantageous the activities of a provider of services established in another Member State’ for the purposes of the case-law cited in paragraphs 74 and 75 above, such that that requirement could restrict the exercise of the freedom to provide services.

79      It is true that by imposing minimum remuneration conditions on all workers in the air transport sector whose home base is in Italy, the requirement at issue, which is also laid down in Article 203 of Decree-Law No 34 (see paragraphs 46 and 71 above), obliges airlines established outside Italy to provide a minimum remuneration to their staff whose home base is in Italy, in the same way as airlines based in Italy. However, those foreign airlines remain free to apply other wage conditions, potentially less favourable, to their employees who do not have a home base in Italy, even though those employees might be required to work occasionally or for short periods in Italy.

80      In that regard, the applicant cites the judgment of 15 March 2001, fIt and ISA (C‑165/98, EU:C:2001:162, paragraph 24), in asserting that the minimum remuneration requirement ‘involves expenses and additional administrative and economic burdens’. However, it must be stated that the applicant does not explain how that requirement would, in practice, create an additional burden for foreign airlines with employees whose home base is in Italy or how it would deter those airlines from providing cross-border services to and from Italy.

81      In the second place, although the applicant cites, in its written pleadings, examples drawn from the case-law of situations in which minimum remuneration measures could constitute restrictions on the freedom to provide services, it must be stated, as the Commission has done, that those examples concerned situations which cannot be transposed to the present case.

82      The cases cited by the applicant involved different forms of remuneration measures imposed by the authorities of a Member State relating either to employees working in another Member State, as is the case in the judgment of 18 September 2014, Bundesdruckerei (C‑549/13, EU:C:2014:2235), or to posted workers, namely workers who, for a limited time, perform their work in a Member State other than that in which they normally work, as is the case in the judgments of 15 March 2001, Mazzoleni and ISA (C‑165/98, EU:C:2001:162); of 18 December 2007, Laval un Partneri (C‑341/05, EU:C:2007:809); and of 3 April 2008, Rüffert (C‑346/06, EU:C:2008:189). In contrast to those cases, the minimum remuneration requirement in the present case applies only to workers with a home base in the Member State concerned here, namely Italy. Accordingly, the concept of ‘home base’ within the meaning of Regulation No 965/2012, as amended by Annex II to Commission Regulation (EU) No 83/2014 of 29 January 2014 (OJ 2014 L 28, p. 17), expressly referred to in the minimum remuneration requirement, refers to ‘the location, assigned by the operator to the crew member, from where the crew member normally starts and ends a duty period or a series of duty periods and where, under normal circumstances, the operator is not responsible for the accommodation of the crew member concerned’. Consequently, the minimum remuneration requirement does not target posted workers who work in Italy for short periods of time or occasionally and who usually work in another Member State.

83      In the third place, it should be observed that Directive 96/71, relied on by the applicant (see paragraph 67 above) despite the minimum remuneration requirement not concerning posted workers, states explicitly in Article 3(1) thereof that Member States must apply minimum wage conditions provided for by law or collective agreements classified as universally applicable to workers posted to their territory, whatever the law applicable to the employment relationship of those workers. Such a provision is, moreover, consistent with the case-law according to which EU law does not preclude Member States from extending their legislation, or collective labour agreements relating to minimum wages entered into by both sides of industry, to any person who is employed, even temporarily, within their territory, regardless of the country in which the employer is established (see judgment of 23 November 1999, Arblade and Others, C‑369/96 and C‑376/96, EU:C:1999:575, paragraph 41 and the case-law cited).

84      It follows from the foregoing that the application of national minimum remuneration measures to posted workers respecting the conditions laid down in Article 3(1) of Directive 96/71 is required by that directive and therefore complies in principle with the freedom to provide services. Consequently, the applicant has no valid grounds to challenge the compatibility with the freedom to provide services of such a measure, as laid down by the legislation of a Member State and relating to workers whose home base is located in the Member State in question, as is exactly the case with the minimum remuneration requirement.

85      In the fourth place, Regulation No 1008/2008, which determines the conditions for applying the principle of the freedom to provide services in the air transport sector (see paragraph 56 above), provides that Member States are to apply their social legislation to service providers which are active on their territory, regardless of the Member State of origin of the undertaking concerned. Indeed, as the Commission stated in its arguments at the hearing, recital 9 of that regulation states that ‘with respect to employees of a Community air carrier operating air services from an operational base outside the territory of the Member State where that Community air carrier has its principal place of business, Member States should ensure the proper application of Community and national social legislation’. The minimum remuneration requirement is very much a measure of Italian social legislation aimed at protecting workers, to which the freedom to provide cross-border air transport services is subject.

86      It follows from the foregoing that the Commission was not required to carry out an in-depth assessment of the justification for the minimum remuneration requirement, contrary to what is claimed by the applicant. Such a finding is also consistent with paragraph 58 of the judgment on appeal, in which the Court of Justice ruled on the absence of reasoning in the contested decision in relation to compliance of the requirement at issue with the freedom to provide services, stating that ‘the Commission’s obligation to state reasons does not in any event mean that it must in every case justify the absence of an explicit examination of the compatibility of an aid measure in the light of certain provisions or certain principles of EU law other than the State aid rules and, therefore, give its view on their relevance for the purpose of such an examination’. The Court of Justice therefore considered that it was not necessary to carry out, in the contested decision, an explicit examination of the compatibility of the minimum remuneration requirement with the principle of the freedom to provide services. Nor is it possible, therefore, to require an examination of the justification for that requirement in the light of that latter principle.

87      Lastly, since the applicant’s line of argument relating to the Commission’s assessment of the compatibility of the minimum remuneration requirement with the principle of the freedom to provide services has been rejected, its arguments relating to free establishment must also be rejected. Indeed, the applicant’s arguments in that respect do not contain any specific points in addition to those relating to the freedom to provide services.

88      In the light of the foregoing, the applicant has failed to demonstrate that the minimum remuneration requirement constitutes an obstacle to the freedom to provide services, in breach in particular of Article 15 of Regulation No 1008/2008, or to the freedom of establishment. Consequently, the present complaint must be rejected in its entirety.

89      It follows from all the foregoing considerations that the present plea must be rejected.

C.      Second plea, alleging infringement of Article 107(2)(b) TFEU and manifest error of assessment of the proportionality of the aid in the light of the damage caused by the COVID-19 pandemic

90      By its second plea, the applicant submits that the Commission infringed Article 107(2)(b) TFEU by committing a manifest error of assessment in the calculation of the damage. This plea is divided into two parts, alleging, first, that the Commission erred in assessing the damage caused by the travel restrictions linked to the COVID-19 pandemic and, second, that it failed to take account of other aid measures possibly granted to the groups to which the beneficiaries of the scheme at issue belong.

1.      The first part of the second plea, relating to the assessment of the damage caused by the travel restrictions

91      The applicant puts forward two complaints in the first part. The first concerns the causal link between the travel restrictions and the damage suffered by the airlines. The second concerns the assessment of avoided costs.

(a)    The causal link between the travel restrictions and the damage suffered by the airlines

92      The applicant claims that, by including in the scheme at issue damage that the beneficiaries suffered during the periods from 1 to 9 March and from 3 to 15 June 2020, the Commission approved compensation for damage that was not directly caused by the travel restrictions and the other containment measures adopted by Italy and other Member States and therefore allowed overcompensation of the damage suffered by the beneficiaries of the scheme at issue. The applicant observes, first, that during the period from 1 to 9 March 2020 there was no complete national lockdown in Italy, but only a number of local travel restrictions. Second, as regards the period from 3 to 15 June 2020, the Italian Government partially lifted the national lockdown measures and travel restrictions remained in place only at certain airports in Italy or in certain Member States. In addition, the applicant submits that the restrictions imposed by the other Member States are largely irrelevant since a significant volume of the services provided by Blue Panorama and Neos consist of air transport services limited to Italian territory.

93      In addition, according to the applicant, the Commission could not presume that the entirety of the reduction in demand for passenger air transport during the period from 1 March to 15 June 2020 was attributable to the travel restrictions and other containment measures. The applicant submits that compensation should be provided only for damage caused by measures preventing the operations of the beneficiaries of the scheme at issue, and not damage caused by passengers choosing not to travel, regardless of travel restrictions, in accordance with points 15bis and 15ter of the Communication from the Commission of 19 March 2020 entitled ‘Temporary Framework for State aid measures to support the economy in the current COVID-19 outbreak’ (OJ 2020 C 91 I, p. 1), as last amended on 28 January 2021 (OJ 2021 C 34, p. 6) (‘the Temporary Framework’); with Commission Decision C(2020) 9659 final of 29 December 2020 on State aid SA.59188 (2020/NN) – Italy – COVID-19 aid to Alitalia, a summary of which was published in the Official Journal of the European Union (OJ 2021 C 134, p. 2); and with Commission Decision C(2021) 2346 final of 26 March 2021 on State aid SA.61676 (2021/NN) – Italy – COVID-19 aid to Alitalia, a summary of which was published in the Official Journal of the European Union (OJ 2021 C 223, p. 14), approving compensation for the damage suffered by the former airline Alitalia – Società Aerea Italiana SpA owing to the imposition of travel restrictions and other containment measures linked to the COVID-19 pandemic.

94      Furthermore, the applicant takes issue with the Italian authorities’ commitment, described in recital 77 of the contested decision, to grant compensation for the period from 3 to 15 June 2020. In the applicant’s view, such a commitment may have encouraged the beneficiaries of the scheme at issue to keep operations ‘dormant’ in the knowledge that they would receive compensation from the Italian Government.

95      The Commission, supported by the interveners, contests the arguments put forward by the applicant.

96      As a preliminary point, it should be observed, according to the case-law, that only damage caused by natural disasters or exceptional occurrences may be compensated for on the basis of Article 107(2)(b) TFEU (judgment of 23 February 2006, Atzeni and Others, C‑346/03 and C‑529/03, EU:C:2006:130, paragraph 79).

97      In particular, according to the case-law, the occurrence giving rise to the damage, as defined in the contested decision, must be the determining cause of the damage which the aid at issue is intended to remedy and must be directly responsible for causing it. A direct link exists only where the damage is the direct consequence of the occurrence in question without being dependent on the interposition of other causes. Accordingly, it is incumbent on the Commission to examine with particular care whether the occurrence was really the decisive cause of the damage suffered by the beneficiary of the aid concerned or, on the contrary, some of the damage suffered was due to the beneficiary’s pre-existing difficulties (judgment of 18 October 2023, Ryanair v Commission (Alitalia I; COVID-19), T‑225/21, not published, EU:T:2023:644, paragraph 46).

98      In the present case, the Commission examined the causal link between the damage compensated for by the scheme at issue and the COVID-19 pandemic in section 3.3.3 of the contested decision. It explained in recitals 63 and 64 of the contested decision that the scheme at issue aimed at compensating airlines for the damage suffered due to the cancellation of flights resulting from the travel restrictions and other containment measures linked to the COVID-19 pandemic, not only during the national lockdown in Italy from 10 March to 2 June 2020, which imposed an almost complete restriction on the freedom of movement throughout Italy, but also on the days immediately before and after that period, from 1 to 9 March and 3 to 15 June 2020.

99      In that regard, the Commission set out the reasons in the contested decision why it considered that it was appropriate to authorise aid covering the damage suffered by the beneficiaries of the scheme at issue both during the national lockdown in Italy and during the days immediately before and immediately after it.

100    First, as regards the period from 1 to 9 March 2020, the Commission explained in recitals 7 to 10 and 65 and 66 of the contested decision that the Italian Government had already established travel restrictions and other containment measures linked to the COVID-19 pandemic during that period. Accordingly, having already adopted travel restrictions affecting certain third countries in February 2020, the Republic of Italy imposed lockdown measures on 1 March 2020 in several northern Italian cities and considerably restricted all economic, cultural and transport activities in several regions of northern Italy. On 4 March, it applied those same restrictions to the entire territory of Italy. It is also apparent from the recitals of the contested decision referred to above that, during that period at the beginning of March, several Member States prohibited or restricted the entry of persons from Italy. A large number of third countries also banned or limited flights to or from Italy or, like the United States of America, advised their nationals not to travel to Italy.

101    Second, as regards the period from 3 to 15 June 2020, immediately after the national lockdown in Italy, recitals 13 to 15 and 72 to 76 of the contested decision state that a large number of airports in Italy and certain domestic routes were still closed and that most Member States had not reopened their borders, meaning that connections with Italy were not possible. It is also apparent from those recitals of the contested decision that the majority of the Member States only lifted border restrictions from 15 June 2020 and that many third countries also only lifted the prohibitions or restrictions on travel to or from Italy after that date.

102    Third, it is apparent from recitals 16 to 20 of the contested decision that the travel restrictions and other containment measures linked to the COVID-19 pandemic caused significant disruption to the operations of the beneficiaries of the scheme at issue throughout the whole of the period at issue. For example, according to the contested decision, Blue Panorama had to cancel all its flights operated to and from Italy between 1 and 9 March 2020, while it operated 48 flights in the same period in 2019. In addition, the number of flights in Italy fell by 95% in April 2020, 97% in May 2020 and 88% between 1 and 15 June 2020 as compared with the same periods in 2019.

103    It follows from those factors set out in the contested decision, and not seriously disputed by the applicant, that the Commission was fully entitled to authorise aid covering the damage suffered by the beneficiaries of the scheme at issue during the entire period at issue.

104    In particular, first, the Commission was right to take account of the damage suffered by the beneficiaries of the scheme at issue during the period before the national lockdown in Italy, namely from 1 to 9 March 2020. That was justified by the rapid deterioration in travel conditions during that period, on account of the gradual adoption of multiple travel restrictions of varying nature by the Italian authorities and the authorities of other Member States and third countries, in order to deal with the COVID-19 pandemic (see, to that effect and by analogy, judgment of 29 July 2024, Ryanair and Laudamotion v Commission, C‑591/21 P, not published, EU:C:2024:635, paragraphs 121 to 123).

105    Second, the Commission was entitled, without making an error of assessment, to take account of the damage suffered by the beneficiaries of the scheme at issue during the period immediately after the national lockdown, namely the period from 3 to 15 June 2020, in view of the still widespread application of travel restrictions during that period, which had been adopted both by the Italian authorities and the authorities of other Member States and which were lifted only gradually during June 2020.

106    In addition, it is apparent from the contested decision that those travel restrictions, throughout the entire period at issue, also concerned domestic flights in Italy, such that they did in fact have a significant effect on the operations of Neos and Blue Panorama, contrary to what the applicant claims.

107    Furthermore, the applicant also states that the Commission should have adopted a methodology differentiating between the damage caused by the travel restrictions that prevented the operations of the beneficiaries of the scheme at issue and that caused by passengers choosing not to travel during the period at issue, as it did in subsequent decisions approving compensation for the damage suffered by Alitalia, in accordance with the Temporary Framework (see paragraph 93 above). In that regard, it should be observed, as the Commission and the interveners have done, that the applicant is referring to a methodology recommended by the Commission for calculating the damage suffered by undertakings after 15 June 2020, and not during the period at issue, in which very significant restrictions on flights were put in place. As is apparent from paragraphs 100 to 102 above, the period at issue was characterised by the introduction, by most Member States and the Schengen Associated States, of temporary lockdowns and controls at internal borders and of measures restricting free movement within the European Union, which particularly affected transport in Italy. That first phase of the COVID-19 pandemic, which lasted until 15 June 2020, is clearly distinguishable from the period after. It is precisely for that reason that point 15ter of the Temporary Framework, introduced in the version of 28 January 2021, refers to that methodology for calculating damage relating to the ‘prolonged crisis’, namely the period following that of the widespread application of national lockdowns and travel restrictions. Similarly, the decisions concerning Alitalia cited by the applicant differ from the contested decision since they concern compensation for damage suffered by that airline after 16 June 2020, and not during the period at issue.

108    Lastly, it must be observed that the applicant’s argument that the undertaking given by the Italian authorities, referred to in recital 77 of the contested decision, encouraged the beneficiaries of the scheme at issue to suffer damage or not to minimise it, since those beneficiaries had thus been assured that they would receive compensation, overlaps with the applicant’s more substantiated argument put forward in support of the second complaint examined below. In any event, that argument must be rejected in the context of the present complaint. As the Commission submits, recital 77 of the contested decision merely points out that the Italian authorities had undertaken to compensate the beneficiaries of the scheme at issue that demonstrated, on the basis of ‘concrete and solid’ evidence, that they had been directly affected by the COVID-19 pandemic in the period between 3 and 15 June 2020. There is nothing in that commitment to suggest that the Italian authorities failed to make access to the scheme at issue conditional on a direct causal link between, first, the damage, namely that resulting from the cancellation of flights and, second, the triggering event giving rise to the right to benefit from the scheme at issue, namely the travel restrictions and other containment measures.

109    In the light of the foregoing, the present complaint must be dismissed.

(b)    The assessment of avoided costs

110    The applicant claims that the assessment of avoided costs in the contested decision is ‘opaque’. It argues that there is nothing in the contested decision to show that the costs borne by the beneficiaries of the scheme at issue during the period at issue accurately reflected all the costs that they had not borne as a result of cancelled flights. In addition, according to the applicant, the fact that the Italian authorities had committed to grant compensation for the periods from 1 to 9 March and from 3 to 15 June 2020 could have led the beneficiaries of the scheme at issue to postpone the adoption of cost-cutting measures which other airlines, not supported by the State, had to take. The Commission failed to show that those beneficiaries had mitigated as much as possible the damage they had suffered, as required under EU law.

111    The Commission, supported by the interveners, contests the arguments put forward by the applicant.

112    In the regard, first, it is necessary to reject the applicant’s argument that the assessment of the avoided costs in the contested decision was ‘opaque’.

113    In recital 31(b) of the contested decision, the Commission explained, in a sufficiently clear and precise manner, that the calculation of damage according to the ‘net losses’ methodology, criticised by the applicant, included the additional expenditure incurred and the savings made, namely avoided costs, by the beneficiaries of the scheme at issue, that is to say, the positive and negative impact of the containment measures on their fixed and variable costs. In that regard, the Commission stated that all the variable costs of the beneficiaries would be taken into account, in particular fuel costs, fees and charges, maintenance costs, commissions of the International Air Transport Association (IATA) and catering costs, as well as fixed costs which had varied as a result of those measures, in particular lower personnel and marketing costs.

114    In addition, the Commission explained in recital 82 of the contested decision, one, that avoided costs corresponded to costs that the beneficiaries of the scheme at issue would have incurred during the period at issue if their activities had not been affected by the travel restrictions and other containment measures linked to the COVID-19 pandemic, and which those airlines had not had to bear as a result of the cancellation of those operations (fuel, airport charges, ground handling services and so forth) and, two, that the avoided costs were quantified by comparing the costs borne by those airlines during the period at issue with those they had incurred during the same period in 2019.

115    Second, as regards the applicant’s argument that the Commission should have ensured that the scheme at issue did not compensate costs incurred by beneficiaries which were ‘avoidable’, but which they had not avoided, it is sufficient to state that that argument is too general and is not substantiated.

116    Indeed, the applicant fails to specify which areas of cost are concerned.

117    Third, the applicant’s argument, that the Italian authorities’ commitment to grant compensation to the beneficiaries of the scheme at issue had encouraged them to postpone the adoption of cost-cutting measures, is speculative and must, in the absence of any identification of the areas of cost concerned, be rejected for the same reasons.

118    In the light of the foregoing, it is necessary to reject the present complaint and, consequently, the first part of the present plea.

2.      The second part of the second plea, concerning other aid measures possibly granted to the groups to which the beneficiaries belong

119    The applicant submits that since Air Dolomiti, Blue Panorama and Neos belong to groups of undertakings, the Commission should have ensured that the aid granted under the scheme at issue did not benefit those groups and that any aid granted to those groups did not benefit the beneficiaries of the scheme at issue, which could lead to overcompensation of the damage they suffered. It argues that that risk of a spill-over of the aid granted is particularly relevant as regards Air Dolomiti in so far as its parent company, Deutsche Lufthansa AG, and other entities in the latter’s group (‘the Lufthansa Group’) received State aid during the COVID-19 pandemic. The lack of any examination in that regard contrasts with Commission Decision C(2020) 4871 final of 13 July 2020 on State aid SA.57116 (2020/N) – The Netherlands – COVID-19: State loan guarantee and State loan for KLM, a summary of which was published in the Official Journal of the European Union (OJ 2020 C 355, p. 2), in which the Commission had examined the risk that the aid granted to Koninklijke Luchtvaart Maatschappij NV might spill over to other entities in its group. According to the applicant, the reference in the contested decision to an ex post mechanism for calculating the damage, without any details on the method to avoid overcompensation of the damage, does not suffice to rule out that risk.

120    The Commission, supported by the interveners, contests the arguments put forward by the applicant.

121    In the present case, the Commission stated in recitals 38 and 39 of the contested decision that the Italian Republic had confirmed that a cumulation of State aid covering the same costs as those eligible for compensation was excluded. After observing that Air Dolomiti was a subsidiary of the Lufthansa Group and that its parent company, Deutsche Lufthansa, had received State aid from the Federal Republic of Germany, the Commission stated that the Italian Republic had explained to it that the scheme at issue provided safeguards against the risk of overcompensation. First, any damage already compensated for from other sources would be excluded from the damage eligible for compensation. Second, the draft law for the grant of aid under the scheme at issue prohibited the cumulation of aid and established an ex post mechanism to recover any aid unduly received. Third, the fact that the damage eligible for compensation had not already been compensated for by other sources would be certified by an independent auditor’s evaluation report.

122    Furthermore, in recitals 87 and 88 of the contested decision, appearing in section 3.3.4 thereof, entitled ‘Proportionality of the aid measure’, the Commission referred to the safeguards put in place, previously referred to in recital 39 of the contested decision, while observing that the Italian Republic had undertaken to provide it with a report on the implementation of the scheme at issue within one year of the date of adoption of the contested decision.

123    In that regard, in the first place, as regards the applicant’s argument that the Commission should have analysed the individual situation of the beneficiaries of the scheme at issue, it should be observed that Article 1 of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU] (OJ 2015 L 248, p. 9), entitled ‘Definitions’, provides, in point (d), that an ‘aid scheme’ means ‘any act on the basis of which, without further implementing measures being required, individual aid awards may be made to undertakings defined within the act in a general and abstract manner and any act on the basis of which aid which is not linked to a specific project may be awarded to one or several undertakings for an indefinite period of time and/or for an indefinite amount’. ‘Individual aid’ is defined in Article 1(e) of that regulation as ‘aid that is not awarded on the basis of an aid scheme and notifiable awards of aid on the basis of an aid scheme’.

124    It is settled case-law that, in the specific case of an aid scheme, the Commission may merely study the characteristics of the scheme at issue in order to assess, in the grounds for its decision, whether, by reason of the arrangements provided for under the scheme, the latter gives an appreciable advantage to beneficiaries in relation to their competitors and is likely to benefit in particular undertakings engaged in trade between Member States. Accordingly, in a decision which concerns such a scheme, the Commission is not required to carry out an analysis of the aid granted in each particular case under the scheme. It is only at the stage of recovery of the aid that it is necessary to look at the individual situation of each undertaking concerned (see judgments of 4 March 2021, Commission v Fútbol Club Barcelona, C‑362/19 P, EU:C:2021:169, paragraph 65 and the case-law cited, and of 19 May 2021, Ryanair v Commission (Spain; Covid-19), T‑628/20, EU:T:2021:285, paragraph 78 and the case-law cited).

125    Accordingly, in the case of such an aid scheme, a distinction must be drawn between the adoption of such a scheme, on the one hand, and the grant of aid on the basis of that scheme, on the other (see judgment of 4 March 2021, Commission v Fútbol Club Barcelona, C‑362/19 P, EU:C:2021:169, paragraph 66 and the case-law cited).

126    Aid granted individually to undertakings on the basis of an aid scheme cannot have any bearing on the examination which the Commission is required to carry out as regards proof of the existence of an advantage under Article 107(1) TFEU, since that grant is merely the consequence of the automatic application of such an aid scheme (see, to that effect, judgment of 4 March 2021, Commission v Fútbol Club Barcelona, C‑362/19 P, EU:C:2021:169, paragraph 75).

127    In the present case, it should be observed, and this is not disputed by the parties, that the scheme at issue is an ‘aid scheme’ within the meaning of Article 1(d) of Regulation 2015/1589, and not individual aid within the meaning of Article 1(e) thereof. It thus follows from the case-law principles cited in paragraphs 124 to 126 above, applicable to the examination of the existence of an advantage under Article 107(1) TFEU, that the Commission was required merely to study the characteristics of the scheme at issue in order to assess, in the grounds of the decision, whether, by reason of the arrangements provided for by that scheme, it fell within the scope of Article 107(2)(b) TFEU.

128    The examination referred to in paragraph 127 above is precisely what the Commission carried out as regards the question of the proportionality of the scheme at issue and the risk of overcompensation linked to the application of that scheme. As is apparent from recitals 38, 39, 87 and 88 of the contested decision, summarised in paragraphs 121 and 122 above, the Commission detailed the various safeguards which the Italian Republic had committed to implement in order to avoid overcompensation of the damage suffered by the beneficiaries of the scheme at issue. Moreover, in recitals 29 to 37 and 81 to 86 of the contested decision, it also verified the precise and prudent nature of the methodology foreseen for calculating the aid to be granted under the scheme at issue.

129    However, in the light of the case-law cited in paragraphs 124 to 126 above, the Commission was not required to assess the risk of a spill-over of the aid granted to the beneficiaries of the scheme at issue under that scheme to their groups, or to examine the risk that any aid granted to those groups by other aid measures might benefit those beneficiaries. Consequently, contrary to what is claimed by the applicant, the type of analysis carried out by the Commission in the decision referred to in paragraph 119 above, which concerned the grant of individual aid, was not necessary in the present case.

130    That finding is not undermined by the applicant’s reference at the hearing to the judgment of 22 November 2001, Mitteldeutsche Erdöl-Raffinerie v Commission (T‑9/98, EU:T:2001:271). Although it is true that the General Court held in paragraph 116 of that judgment that the Commission was entitled to assess, in addition to the general and abstract examination of an aid scheme, the application of that aid scheme in a particular case, it nevertheless limited itself to pointing out that the Commission merely had the power to carry out such an examination. In paragraph 117 of that judgment, the General Court justified the Commission’s use of that power by the particular nature of the situation of the beneficiary of the aid measure, whose investment project that had been affected by the measure had already been the subject of an earlier examination by the Commission, and by the fact that the Member State concerned had itself asked the Commission to assess that particular case. In the present case, even though the beneficiaries of the scheme at issue were identified in the contested decision, as the applicant states, the Commission had no particular reason to make use of that power. Indeed, the examination of the general characteristics of the scheme at issue did not reveal anything to show that the application of that scheme could lead to overcompensation of the damage suffered by the beneficiaries.

131    The Commission was therefore entitled to confine itself solely to examining the characteristics of the scheme at issue.

132    In the second place, the applicant criticises the ‘generic’ nature of one of the safeguards that the Italian Republic undertook to establish in order to avoid overcompensation of the damage suffered by the beneficiaries of the scheme at issue, namely the establishment of an ex post mechanism to ensure no overcompensation arose. In that regard, it should be observed, first, that the applicant has not put forward any substantiated argument challenging the other guarantees implemented by the Italian authorities for that purpose, summarised in paragraphs 121 and 122 above. Second, the applicant has not put forward any specific and substantiated evidence to show that aid measures from which the groups to which the beneficiaries of the scheme at issue belong could, in fact, cover the same eligible costs as those taken into account in the calculation of the damage which the scheme at issue sought to make good. Although the applicant asserts that there was a particular risk of spill-over for Air Dolomiti and the Lufthansa Group, its arguments remain purely speculative in that regard and must therefore be rejected.

133    In the light of the foregoing, the second part of the present plea must be rejected.

134    It follows from all the foregoing considerations that the present plea must be rejected.

D.      Third plea, alleging infringement of the applicant’s procedural rights

135    By the third plea, the applicant submits that the Commission’s examination was incomplete and insufficient, as demonstrated by the applicant’s arguments made in support of the first and second pleas. That circumstance establishes that there were serious difficulties which should have led the Commission to initiate the formal investigation procedure and to allow the applicant to submit its comments.

136    Furthermore, the applicant contends that the presence of serious difficulties is also demonstrated by the fact that the Commission concluded, in recital 99 of the contested decision, that the minimum remuneration requirement complied with the protection afforded to workers under the Rome I Regulation. However, the applicant argues that the Commission erred in considering that the concept of ‘home base’, to which the minimum remuneration requirement refers, constituted a significant indicium for the purpose of determining the ‘place where the employee habitually carries out his work’ for the purposes of the Rome I Regulation, thus misinterpreting the judgment of 14 September 2017, Nogueira and Others (C‑168/16 and C‑169/16, EU:C:2017:688).

137    In its observations on the referral, the applicant adds that that equating of the concept of ‘home base’ with that of ‘place where the employee habitually carries out his work’ led the Commission to conclude, in recital 98 of the contested decision, that all carriers with employees based in Italy had to meet the social protection afforded under Italian law, no matter the nationality of those carriers or of the law applicable to the employment contract. By that finding, the Commission failed to take account of the particular circumstances of each worker. That finding also means that the parties to an employment contract are not free to choose the law applicable to the contract, in breach of Article 8(1) of the Rome I Regulation, and that employees are deprived of the protection afforded by Article 8(2) and by Article 8(4) thereof.

138    The Commission, supported by the interveners, contests the arguments put forward by the applicant.

139    It should be borne in mind that, according to the case-law, when an applicant seeks the annulment of a decision of the Commission not to raise objections in relation to State aid, it essentially contests the fact that that decision was adopted without the Commission initiating the formal investigation procedure, thereby infringing the applicant’s procedural rights. In order to have its action for annulment upheld, the applicant may invoke any plea to show that the assessment of the information and evidence which the Commission had at its disposal during the preliminary examination phase of the measure notified should have raised doubts as to the compatibility of that measure with the internal market. The use of such arguments cannot, however, have the consequence of changing the subject matter of the application or altering the conditions of its admissibility. On the contrary, the existence of doubts concerning that compatibility is precisely the evidence which must be adduced in order to show that the Commission was required to initiate the formal investigation procedure under Article 108(2) TFEU and Article 6(1) of Regulation 2015/1589 (see judgment of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 143 and the case-law cited).

140    It is for the party applying for annulment of a Commission decision not to raise any objections to State aid to show that there were doubts concerning the compatibility of the aid with the internal market, meaning that the Commission was required to initiate the formal investigation procedure under Article 108(2) TFEU. Such proof must be sought both in the circumstances in which the decision was taken and in its content, on the basis of a body of corroborating evidence (see judgment of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 144 and the case-law cited).

141    In particular, the insufficient or incomplete nature of the examination carried out by the Commission during the preliminary examination procedure is an indication that the Commission was faced with serious difficulties in assessing the compatibility of the notified measure with the internal market, which should have led it to initiate the formal investigation procedure (see judgment of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 145 and the case-law cited).

142    In the present case, it is true, as the applicant claims, in essence, that if it were to succeed in demonstrating that the Commission had encountered serious difficulties in assessing the compatibility of the scheme at issue with the internal market, the contested decision should be annulled on that ground alone, even though the applicant had not established, moreover, that the Commission’s assessments as to the substance were wrong in law or in fact (see, to that effect, judgment of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 146 and the case-law cited).

143    In order to demonstrate that the Commission encountered such difficulties in assessing the compatibility of the scheme at issue with the internal market, the applicant may indeed refer to the assessments on which the Commission relied and, therefore, put forward arguments relating to the merits of the contested decision, even if the examination of those arguments would not lead to the conclusion that the Commission’s assessments as to the substance were wrong in fact or in law (see, to that effect, judgment of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 147 and the case-law cited).

144    In the present case, this plea alleges, in essence, that the examination carried out by the Commission during the preliminary examination procedure was incomplete and insufficient and that the Commission would have arrived at a different assessment of the compatibility of the scheme at issue with the internal market as a result of a formal investigation procedure.

145    In the first place, it is apparent from the applicant’s written pleadings that, in support of the present plea, it has in part reproduced in condensed form the arguments made in the first two pleas in the action, relating to the merits of the contested decision, and has referred to those arguments.

146    However, since the Court has examined the substance of first two pleas, including the arguments alleging that the examination carried out by the Commission was incomplete and insufficient, it is not required to make a fresh assessment of the merits of those arguments in the absence of specific new elements capable of demonstrating that the Commission had encountered serious difficulties in assessing the compatibility of the scheme at issue with the internal market (see, to that effect, judgment of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 149).

147    In the second place, as regards the line of argument based on the examination in the contested decision of the compliance of the minimum remuneration requirement with the Rome I Regulation, it is necessary, as a preliminary point, to reject the Commission’s argument, made in its response to the measures of organisation of procedure adopted on the basis of Article 88 of the Rules of Procedure and reiterated at the hearing, that the applicant’s arguments in that regard in the observations on the referral are inadmissible. It must be found, as the applicant argued at the hearing, that the line of argument put forward in the observations on the referral is an amplification of the arguments made in the application and is closely connected with the application, in so far as the argument that the Commission did not make a correct assessment of the compatibility of the minimum remuneration requirement with the Rome I Regulation is clearly apparent in paragraph 135 of the application. Accordingly, in the light of the case-law cited in paragraph 70 above, the arguments put forward in the observations on the referral are admissible.

148    In that regard, it should be observed that Article 8(1) of the Rome I Regulation provides as follows:

‘An individual employment contract shall be governed by the law chosen by the parties in accordance with Article 3. Such a choice of law may not, however, have the result of depriving the employee of the protection afforded to him by provisions that cannot be derogated from by agreement under the law that, in the absence of choice, would have been applicable pursuant to paragraphs 2, 3 and 4 of this Article.’

149    Article 8(2) of the Rome I Regulation provides inter alia that, ‘to the extent that the law applicable to the individual employment contract has not been chosen by the parties, the contract shall be governed by the law of the country in which or, failing that, from which the employee habitually carries out his work in performance of the contract’.

150    Article 8(3) of the Rome I Regulation states that, ‘where the law applicable cannot be determined pursuant to paragraph 2, the contract shall be governed by the law of the country where the place of business through which the employee was engaged is situated’.

151    Lastly, Article 8(4) of the Rome I Regulation provides that, ‘where it appears from the circumstances as a whole that the contract is more closely connected with a country other than that indicated in paragraphs 2 or 3, the law of that other country shall apply’.

152    In the present case, in section 3.3.5 of the contested decision, entitled ‘Compliance of the Measure with other provisions of Union law’, the Commission examined, inter alia, whether the minimum remuneration requirement complied with the Rome I Regulation. It found, in recitals 96 to 99 of the contested decision, that that requirement prima facie complied with Article 8(1) of the Rome I Regulation.

153    In that regard, the Commission observed that the minimum remuneration requirement applied only to employees who had their home base in Italy and that the Court of Justice had held, in the judgment of 14 September 2017, Nogueira and Others (C‑168/16 and C‑169/16, EU:C:2017:688), that the concept of ‘home base’, for an aircraft crew, was a significant indicium for determining ‘the country in which or, failing that, from which the employee habitually carries out his work in performance of the contract’ within the meaning of Article 8(2) of the Rome I Regulation. The Commission observed that, under that regulation, such employees could not be deprived of the protection afforded by Italian law, which included the minimum remuneration requirement, with the result that all airlines had, in any event, to comply with that requirement with regard to their employees with a home base in Italy, no matter the Member State of origin of those airlines or the law applicable to the contract.

154    In essence, the applicant complains that the Commission erred in finding that the concept of an airline employee’s ‘home base’, to which the minimum remuneration requirement refers, was equivalent to that of ‘the country in which or, failing that, from which the employee habitually carries out his work in performance of the contract’, as laid down in Article 8(2) of the Rome I Regulation. According to the applicant, equating those concepts led to an infringement of Article 8(1), (2) and (4) of that regulation.

155    In that regard, first of all, it is necessary to reject the interveners’ argument that the minimum remuneration requirement was an element that was indissolubly linked to the object of the scheme at issue, for the reasons set out in paragraph 48 above. It must therefore be held, contrary to what is claimed by those latter parties, that the Commission was required to assess separately whether or not that requirement infringed EU law. Its effect on the compatibility of the scheme at issue could not be determined solely in the light of Article 107(2) TFEU.

156    As regards the analysis of the compliance of the minimum remuneration requirement with Article 8 of the Rome I Regulation, it should be observed that, according to paragraph 69 of the judgment of 14 September 2017, Nogueira and Others (C‑168/16 and C‑169/16, EU:C:2017:688), the concept of ‘home base’, defined in Council Regulation (EEC) No 3922/91 of 16 December 1991 on the harmonisation of technical requirements and administrative procedures in the field of civil aviation (OJ 1991 L 373, p. 4), as amended by Regulation (EC) No 1899/2006 of the European Parliament and of the Council of 12 December 2006 (OJ 2006 L 377, p. 1), is a significant indicium for determining the ‘place where the employee habitually carries out his work’ within the meaning of Article 19(2)(a) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1; ‘the Brussels I Regulation’), in force at the time. According to paragraph 73 of the judgment of 14 September 2017, Nogueira and Others (C‑168/16 and C‑169/16, EU:C:2017:688), it is only in specific cases where factual circumstances demonstrate a closer connection with another Member State that the home base could be less relevant to the determination of the ‘place where the employee habitually carries out his work’ within the meaning of the Brussels I Regulation.

157    The concept of ‘place where the employee habitually carries out his work’, as used in the Brussels I Regulation and reviewed by the Court in the judgment of 14 September 2017, Nogueira and Others (C‑168/16 and C‑169/16, EU:C:2017:688), has wording which is very similar to that of the concept of ‘country in which or, failing that, from which the employee habitually carries out his work in performance of the contract’, laid down in Article 8(2) of the Rome I Regulation, and those two concepts must be interpreted consistently, in accordance, in particular, with recital 7 of the Rome I Regulation, which provides that its substantive scope and provisions ‘should be consistent with [the Brussels I] Regulation’.

158    In that regard, it should be observed that the applicant has not provided any specific and substantiated arguments explaining how the application of the minimum remuneration requirement to employees with their home base in Italy, first, limits the choice of law applicable to their employment contracts under Article 8(1), (2) and (4) of the Rome I Regulation and, second, deprives those employees of the protection afforded by Article 8(1) of the Rome I Regulation.

159    Even if the minimum remuneration requirement applies to employees with their home base in Italy, the applicant does not put forward any argument explaining how such a requirement would preclude the application of the law of a Member State other than Italy to an employment contract if it was justified by the circumstances provided for in Article 8(2) to (4) of the Rome I Regulation. Accordingly, as the Commission maintains, and as Neos and Air Dolomiti argued at the hearing, the risk of a breach of that article of the Rome I Regulation has not been demonstrated.

160    Similarly, although the applicant claims that there may be particular cases where the Member State in which a crew member habitually carries out his or her work differs from that of his or her home base, contrary to what is found, in essence, in recital 98 of the contested decision, it must be found that it has not adduced substantiated arguments capable of demonstrating that, even if such cases were assumed to exist, the application of the minimum remuneration requirement infringes Article 8 of the Rome I Regulation.

161    It follows from the foregoing that the applicant has failed to demonstrate that the Commission encountered serious difficulties when examining the compatibility of the minimum remuneration requirement with the Rome I Regulation, or that there were serious doubts as to the compatibility of that requirement with Article 8 of the Rome I Regulation, which should have led the Commission to initiate the formal investigation procedure.

162    Accordingly, the present plea must be rejected.

E.      Fourth plea, alleging breach of the duty to state reasons

163    In its application, the applicant claims that the Commission failed to fulfil its obligation to state reasons under Article 296 TFEU by not addressing several crucial elements in the contested decision.

164    In the first place, the applicant argues that the Commission did not assess the compatibility of the scheme at issue with the principles of non-discrimination, freedom to provide services and freedom of establishment, or explain why the beneficiaries of the scheme received State aid, even though several other airlines, including the applicant, were more affected by the travel restrictions linked to the COVID-19 pandemic. In addition, the Commission did not give sufficient reasons for its conclusion, in recital 99 of the contested decision, that the minimum remuneration requirement did not infringe provisions of EU law other than the Rome I Regulation.

165    In the second place, in the assessment of the aid granted by the scheme at issue, the applicant contends that the Commission did not examine the value of the competitive advantage enjoyed by the beneficiaries of that scheme or the risk of spill-over of the aid received by those beneficiaries to their groups, and it did not correctly identify the damage directly caused by the travel restrictions.

166    The Commission, supported by the interveners, contests the arguments put forward by the applicant.

167    In that regard, it should be borne in mind that the statement of reasons required by Article 296 TFEU is an essential procedural requirement (judgment of 18 June 2015, Ipatau v Council, C‑535/14 P, EU:C:2015:407, paragraph 37) and must be appropriate to the measure at issue and disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review. Accordingly, the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of concern within the meaning of the fourth paragraph of Article 263 TFEU, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgments of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 63; of 22 June 2004, Portugal v Commission, C‑42/01, EU:C:2004:379, paragraph 66; and of 15 April 2008, Nuova Agricast, C‑390/06, EU:C:2008:224, paragraph 79).

168    In the present case, as regards the nature of the measure at issue, it should be observed that the contested decision was adopted following the preliminary stage of the procedure for reviewing aid established by Article 108(3) TFEU, the sole purpose of which is to allow the Commission to form a prima facie opinion on the partial or total compatibility of the aid concerned with the internal market, without initiating the formal investigation procedure provided for in paragraph 2 of that article, which, for its part, is intended to enable the Commission to be fully informed of all the facts pertaining to that aid.

169    Such a decision, which is taken within a short period of time, must simply set out the reasons why the Commission takes the view that it is not faced with serious difficulties in assessing the compatibility of the aid at issue with the internal market (judgment of 22 December 2008, Régie Networks, C‑333/07, EU:C:2008:764, paragraph 65).

170    As a preliminary point, it should be observed that the Court of Justice stated in the judgment on appeal that the statement of reasons in the contested decision relating to the examination of the compatibility of the minimum remuneration requirement with provisions of EU law other than Articles 107 and 108 TFEU was sufficient. As stated in paragraphs 15 and 16 above, there is therefore no longer any need to adjudicate on that part of the present plea.

171    Furthermore, in the first place, as regards the statement of reasons for the contested decision concerning the compliance of the scheme at issue with the principles of non-discrimination, the freedom to provide services and the freedom of establishment, in particular in that only the beneficiaries of the scheme at issue receive aid, to the detriment of other operators, it should be observed that the contested decision was adopted on the basis of Article 107(2)(b) TFEU and that it is therefore in the light of compliance with the conditions laid down by that provision that the statement of reasons for the decision in question must be examined. As set out in the assessment of the first plea, the contested decision describes, in recitals 3 to 20 thereof, the objective of the scheme at issue and sets out, in recitals 29 to 37 and 61 to 90, the reasons why the detailed rules for granting the benefit of the scheme at issue were such as to enable the objective of that scheme to be achieved without going beyond what was necessary to attain it. That statement of reasons enabled both the applicant to exercise its right to an effective remedy and the General Court to exercise its power of review, as is apparent from the examination of the first plea. It therefore satisfies the requirements of the case-law cited in paragraph 167 above.

172    In the second place, as regards the reasoning in the contested decision concerning the competitive advantage allegedly enjoyed by the beneficiaries of the scheme in question, the risk of a spill-over of the aid received by those beneficiaries to their groups, and the calculation of the amount of damage, first, it is apparent from the case-law that the Commission is not required to examine the competitive advantage enjoyed by the beneficiaries of an aid measure (see, to that effect, judgments of 28 September 2023, Ryanair v Commission, C‑320/21 P, EU:C:2023:712, paragraph 85, and of 29 July 2024, Ryanair and Laudamotion v Commission, C‑591/21 P, not published, EU:C:2024:635, paragraph 146). Second, it follows from the assessment of the second part of the second plea that the Commission’s reasoning was sufficient as regards the risk of a spill-over of the aid granted under the scheme at issue to the groups to which the beneficiaries belong (see paragraphs 119 to 133 above). Furthermore, although the applicant complains of errors in the Commission’s calculation of the amount of damage, it must be stated that that criticism relates not to a failure to provide reasoning in the contested decision, but to the validity of that reasoning, and that it is therefore ineffective for challenging the adequacy of that statement of reasons. In addition, in so far as that line of argument overlaps with that put forward by the applicant in the first part of the second plea, challenging the merits of the Commission’s assessment, it has been addressed in paragraphs 92 to 109 above.

173    In the light of the foregoing, it must be found that the contested decision contains a sufficient statement of reasons and, consequently, that the fourth plea must be rejected.

174    Consequently, the action must be dismissed in its entirety.

V.      Costs

175    Under Article 133 of the Rules of Procedure, a decision as to costs is to be given in the judgment which closes the proceedings. Under Article 195 of those rules, it is for the General Court, when it rules after the Court of Justice has set aside and referred the case back to it, to decide on the costs relating, first, to the proceedings instituted before it and, second, to the appeal proceedings before the Court of Justice. Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

176    In the present case, as stated in paragraph 9 above, the Court of Justice, in the judgment on appeal, set aside the initial judgment and reserved the costs. Consequently, in the present judgment, a ruling must be made on the costs relating to the initial proceedings before the General Court, the appeal proceedings before the Court of Justice, and the present proceedings following referral.

177    Since the applicant has been unsuccessful as to the merits in the procedure on referral before the General Court, on the basis of arguments that it had made in the initial proceedings before the General Court and in the appeal proceedings before the Court of Justice, it must be ordered, first, to bear its own costs in the aforementioned proceedings and to pay those incurred by the Commission, Neos and Air Dolomiti, in accordance with the forms of order sought by the latter. Second, the applicant must be ordered to pay the costs incurred by Blue Panorama in the initial proceedings before the General Court, in accordance with the form or order sought by the latter.

On those grounds,

THE GENERAL COURT (Third Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Ryanair DAC to bear its own costs and to pay those incurred by the European Commission, Neos SpA and Air Dolomiti SpA – Linee Aeree Regionali Europee relating to the procedure on referral before the General Court in Case T‑268/21 RENV, to the appeal proceedings before the Court of Justice in Case C‑490/23 P and to the initial proceedings before the General Court in Case T‑268/21, and those incurred by Blue Panorama Airlines SpA relating to the initial proceedings before the General Court, in Case T‑268/21.

Delivered in open court in Luxembourg on 8 July 2026.

---

*      Language of the case: English.