24.5.2016   

EN

Official Journal of the European Union

L 134/46

(1)

Between 2003 and 2006, the Commission received complaints from various parties alleging that Ryanair plc (‘Ryanair’ (3)) as well as the Frankfurt Hahn airport operator Flughafen Frankfurt-Hahn GmbH (hereinafter: ‘FFHG’) had been granted unlawful State aid by the company Fraport AG and the Länder (Federal States) of Rhineland-Palatinate and Hesse. The complainant provided further information on 22 September 2003 and 1 June 2006.

(2)

By letters dated 25 September 2006 and 9 February 2007, the Commission requested information from Germany. Germany responded by letters dated 20 December 2006 and 29 June 2007 respectively.

(3)

By letter dated 17 June 2008, the Commission informed Germany of its decision to initiate the procedure provided for in Article 108(2) of the Treaty with regard to the financing of FFHG and its financial relations with Ryanair (the ‘2008 opening decision’). Germany transmitted its comments on 27 October 2008.

(4)

The 2008 opening decision was registered under case number SA.21121 (C29/08). The 2008 opening decision was published in the Official Journal of the European Union  (4) on 17 January 2009. The Commission invited interested parties to submit their comments on the measures in question within 1 month of the date of publication.

(5)

The Commission received comments from Deutsche Lufthansa AG (‘Lufthansa’), the Federal Association of German Air Carriers (Bundesverband der Deutschen Fluggesellschaften, ‘BDF’), Ryanair, Société Air France SA (‘Air France’) and the Association of European Airlines (‘AEA’). It forwarded the comments to Germany by letter dated 16 April 2009. Germany was given the opportunity to respond to them within 1 month and transmitted its comments and more information on 1 July 2009.

(6)

By letter of 4 March 2011, Lufthansa provided further information with regard to the 2008 opening decision addressing new alleged State aid measures.

(7)

By letter dated 18 March 2011 the Commission forwarded the complaint to Germany and requested further information on the new allegations concerning State aid measures. Germany replied by letters dated 19 May 2011 and 23 May 2011.

(8)

However, those replies were incomplete. Therefore, by letter dated 6 June 2011 the Commission sent a reminder pursuant to Article 10(3) of Council Regulation (EC) No 659/1999 (5). Germany responded by letters dated 14 June 2011 and 16 June 2011.

(9)

By letter dated 13 July 2011 the Commission informed Germany of its decision to initiate the procedure provided for in Article 108(2) of the Treaty with respect to the credit line provided to FFHG by the cash pooling facility of Land Rhineland-Palatinate, the loan provided to FFHG by Investitions-und Strukturbank of Land Rhineland-Palatinate (‘ISB’) and the guarantee for the ISB loan provided to FFHG by Land Rhineland-Palatinate (the ‘2011 opening decision’). The 2011 opening decision was registered under case number SA.32833 (2011/C). The 2011 opening decision was published in the Official Journal of the European Union on 21 July 2012 (6).

(10)

By letter dated 20 February 2012 the Commission requested further information regarding the 2008 opening decision. Germany responded by letter dated 16 April 2012. By letter of 27 July 2012, the Commission again requested further information. Germany replied by letter dated 4 September 2012.

(11)

By a letter dated 25 February 2014 the Commission informed Germany of the adoption of the Commission guidelines on State aid to airports and airlines (7) (the ‘2014 Aviation Guidelines’) on 20 February 2014. The Commission informed Germany that those guidelines would become applicable from the date of their publication in the Official Journal of the European Union. It gave Germany the opportunity to comment on those guidelines and their possible application to the present case within 20 working days. By letter dated 17 March 2014 the Commission reminded Germany that, in case it would not receive any comments within the deadline of 20 working days, the Commission would consider that Germany had no comments.

(12)

By letters dated 23 March 2014 and 4 April 2014 the Commission requested further information from Germany. Germany replied by letters dated 17 April 2014, 24 April 2014 and 9 May 2014.

(13)

The 2014 Aviation Guidelines were published in the Official Journal of the European Union on 4 April 2014. They replaced the 1994 Aviation Guidelines (8) as well as the 2005 Aviation Guidelines (9).

(14)

On 15 April 2014 a notice was published in the Official Journal of the European Union inviting Member States and interested parties to submit comments on the application of the 2014 Aviation Guidelines in this case within 1 month of their publication date (10). Lufthansa and Transport & Environment submitted observations. By letter dated 26 August 2014, the Commission forwarded those observations to Germany. By letter dated 3 September 2014, Germany informed the Commission that it had no observations.

(15)

By letter dated 17 June 2014, Germany agreed exceptionally to have this decision adopted and notified in English only.

(16)

Frankfurt Hahn airport is located in Land Rhineland-Palatinate, approximately 120 km west of the city of Frankfurt/Main. Frankfurt Hahn airport was a US military airbase until 1992. Subsequently, it was converted into a civil airport. It holds a 24-hour operating licence.

(17)

Holding Unternehmen Hahn GmbH & Co. KG (‘Holding Hahn’), a public private partnership between Wayss & Freytag and Land Rhineland-Palatinate, acquired ownership of the infrastructure of Frankfurt Hahn airport from Germany on 1 April 1995. Between 1995 and 1998, this public private partnership developed the airport with the goal of developing there an industrial and commercial area. According to Germany, when the partnership between Wayss & Freytag and Land Rhineland-Palatinate did not turn out to be successful, on 1 January 1998, Flughafen Frankfurt/Main GmbH (‘Fraport’) (11) started getting involved in the project and eventually took over the operation of the airport.

(18)

According to Germany, Fraport, who was already operating and managing the international Frankfurt Main airport, located approximately 115 km from Frankfurt Hahn airport, got involved for several strategic reasons. Firstly, Germany stated that Frankfurt Hahn airport was the only airport in the proximity of Frankfurt Main airport which had the potential of becoming a fully-fledged international airport. As Frankfurt Main airport was already at its full capacity at that moment, there was the potential for a second profitable airport in the region. Secondly, Frankfurt Hahn airport was then the only German airport with a 24 hour operation licence, especially useful for cargo and freight flights. Thirdly, the runway was fully equipped and could be used in all weather conditions. Furthermore, Germany submitted that the owners of Schiphol airport were also thinking about acquiring Frankfurt Hahn airport, and hence by taking over the operation of Frankfurt Hahn airport it was possible for Fraport to keep out an unwanted competitor.

(19)

Fraport purchased 64,90 % of the shares in the operator Flughafen Hahn GmbH & Co. KG Lautzenhausen (‘FFHG & Co KG’) for the price of […] (*). Payment of part of the purchase price (EUR […]) was due on 31 December 2007, under certain conditions (12). In August 1999, Fraport acquired 73,37 % of the shares of Holding Hahn and 74,90 % of the shares of its general partner Holding Unternehmen Hahn Verwaltungs GmbH for the price of EUR […]. Thereby Fraport effectively became the new partner of Land Rhineland-Palatinate.

(20)

Fraport's focus at Frankfurt Hahn airport was to systematically develop the airport's passenger and cargo business. In that respect, Fraport was one of the first undertakings to apply a business model which aimed especially at attracting low-cost airlines. On that basis, Fraport concluded a new profit and loss transfer agreement with Holding Hahn upon conversion of the latter into a German limited liability company (Gesellschaft mit beschränkter Haftung,‘GmbH’). The conversion and the conclusion of that agreement took place on 24 November 2000.

(21)

Subsequently, Holding Hahn and FFHG & Co KG merged to form Flughafen Hahn GmbH. Land Rhineland-Palatinate held 26,93 % and Fraport 73,07 % of the shares in the new company. Later, the business name of the company was again changed to Flughafen Frankfurt-Hahn GmbH (‘FFHG’). In 2001, the two shareholders, Fraport and Land Rhineland-Palatinate, injected fresh capital into FFHG (see detailed description in Section 3).

(22)

Until 11 June 2001, 100 % of the shares in Fraport were held by public shareholders (13). On 11 June, Fraport was floated on the stock exchange and 29,71 % of its shares were sold to private shareholders, with 70,29 % of shares remaining with the public shareholders.

(23)

In November 2002, Land Rhineland-Palatinate, Land Hesse, Fraport and FFHG concluded an agreement on the further development of Frankfurt Hahn airport. That agreement provided for a second increase of the authorised capital. On that occasion, and Land Hesse acceded to FFHG as a third shareholder. Fraport then owned 65 % of the shares, Land Hesse and Land Rhineland-Palatinate held 17,5 % each. That ownership structure remained unchanged until 2009, when Fraport sold all of its shares to Land Rhineland-Palatinate, which has, since then, held a 82,5 % majority share. The remaining 17,5 % are still held by Land Hesse.

(24)

The passenger traffic at the airport increased from 29 289 in 1998 to 4 million in 2007 and decreased to approximately 2,7 million in 2013 (see Table 1). The airport is currently served by Ryanair, Wizz Air (14) and other airlines. Ryanair's passenger share amounted to approximately [80-100 %] in 2013.

Table 1

Passenger development at Frankfurt Hahn airport in 1998 to 2013

(25)

Frankfurt Hahn airport has also experienced growth in air freight. The air freight at the airport increased from approximately 16 000 tonnes in 1998 to approximately 286 000 tonnes at its peak in 2011, with a subsequent decrease to approximately 151 000 tonnes in 2013 (see Table 2). The total freight, including freight forwarders, handled at the airport amounted to approximately 447 000 tonnes in 2013.

Table 2

Cargo development at Frankfurt Hahn airport in 1998 to 2013

(26)

The following airports are located in the proximity of Frankfurt Hahn airport:

Figure 1

Passenger traffic development at Frankfurt Main and Frankfurt Hahn airports in 2000-2012