OPINION OF ADVOCATE GENERAL

   CAPETA

   delivered on 7 April 2022 ( [1]1 )

   Joined Cases C-331/20 P and C-343/20 P

   Volotea, SA (C-331/20 P)

   easyJet Airline Company Ltd (C-343/20 P)

   v

   European Commission

   (Appeal - Action for annulment - State aid - Imputability - Indirect
   beneficiaries - Applicability and application of the market economy
   operator test)

   I. Introduction

   1.

   `L'inverno aveva rinfrescato anche il colore delle rocce.' (`Winter had
   refreshed even the colour of the rocks.') ( [2]2 )

   2.

   The present cases arise many seasons after Grazia Deledda picturesquely
   described the arrival of spring on the island of Sardinia, Italy. (
   [3]3 ) However, at their core, they also relate to the undervalued
   beauty of Sardinia during the winter months.

   3.

   It was precisely to encourage tourism during that season, that the
   Regione Autonoma della Sardegna (Autonomous Region of Sardinia, Italy)
   (`the Region') set up a scheme to attract flights to airports located
   on the island of Sardinia (`the aid scheme').

   4.

   The European Commission found that scheme to constitute incompatible
   aid in favour of several airlines (`the contested decision'). ( [4]4 )
   Among those airlines from which aid should be recovered were Volotea SA
   and easyJet Airline Company Ltd (collectively, `the appellants'). Those
   parties unsuccessfully challenged the Commission's decision before the
   General Court. ( [5]5 ) Both companies appealed against the General
   Court's judgments.

   5.

   In the present cases, the Court of Justice is invited to assess a
   number of findings of the General Court relating to the determination
   of the Region's scheme as State aid. However, the `elephant in the
   room' is the applicability of the market economy operator (`MEO') test.

   II. Facts and proceedings

   A.   Background to the dispute

   6.

   The facts and the legal background of the present cases are described
   in detail in the judgments under appeal. ( [6]6 ) For the purposes of
   the present Opinion, they can be summarised as follows.

   7.

   By legge regionale n. 10 - Misure per lo sviluppo del trasporto aereo
   (Regional Law No 10 - Measures for the development of air transport) (
   [7]7 ) (`Law 10/2010'), the Region made funding available to airlines
   with a view to opening up new routes and developing existing routes to
   and from Sardinia, including during the winter months.

   8.

   The funding was transferred to the airlines through three Sardinian
   airports. Only two of those airports are of concern for the present
   cases: Cagliari-Elmas and Olbia airports. They are operated by
   companies that are either majority-owned by the chamber of commerce of
   Cagliari-Elmas or by private shareholders (collectively, `the airport
   operators').

   9.

   By measures implementing Law 10/2010, the Region defined activities for
   which funding could be received. Those of interest for the present
   appeals are the increase in air traffic by airlines (activity 1) and
   the promotion of Sardinia as a tourist destination by airlines
   (activity 2).

   10.

   Funding from the Region's budget was provided in the form of grants.
   Those grants were awarded to the airport operators, which, in turn,
   distributed the funds to various airlines. The Region released funding
   solely after assessment and approval of detailed `plans of activities',
   which the operators had to submit to it. The Region also monitored
   their implementation.

   11.

   The appellants are airlines that concluded agreements with the airport
   operators to carry out activities 1 and 2. Their respective plans of
   activities were approved by the Region, after which the appellants
   received compensation from the airport operators, under the scheme
   described above, for increasing the number of flights and routes to and
   from the two airports and for promoting Sardinia as a tourist
   destination.

   12.

   On 30 November 2011, in accordance with Article 108(3) TFEU, the
   Italian Republic notified the scheme to the Commission. After the
   initiation of a formal investigation procedure, the Commission adopted
   the contested decision on 29 July 2016.

   13.

   That decision states that the aid scheme in question does not involve
   State aid, within the meaning of Article 107(1) TFEU, to the airport
   operators (Article 1(1) of the contested decision); that it does
   constitute State aid in favour of the airlines involved, including the
   appellants, in so far as it relates to the operations of those airlines
   at Cagliari-Elmas and Olbia airports (Article 1(2) of that decision);
   that the aid in question was put into effect by Italy in breach of
   Article 108(3) TFEU and that it is incompatible with the internal
   market (Article 1(3) and (4) of the contested decision). It, finally,
   requires that that aid be recovered from the airlines (Article 2(1) of
   that decision).

   B.   The actions before the General Court

   14.

   By means of applications lodged on 6 September 2017 and 11 January
   2018, the appellants brought actions for annulment of the contested
   decision.

   15.

   On 13 May 2020, the General Court delivered the judgments under appeal.
   It dismissed the appellants' actions and ordered them to pay the costs
   of the proceedings.

   C.   Procedure before the Court of Justice

   16.

   In its appeal before the Court of Justice, lodged on 22 July 2020,
   Volotea asks the Court to set aside points 1 and 2 of the operative
   part of the judgment in Case T-607/17; annul Article 1 of the contested
   decision and the recovery order on Italy to the extent that it concerns
   Volotea; and, in the alternative, set aside points 1 and 2 of the
   operative part of the judgment in Case T-607/17, refer the case back to
   the General Court; and order the Commission to pay the costs.

   17.

   In its appeal before the Court, lodged on 23 July 2020, easyJet asks
   the Court to set aside the judgment in Case T-8/18 and/or to annul
   Articles 1, 2, 3 and 4 of the contested decision to the extent that it
   concerns easyJet; and, in the alternative, to set aside the judgment
   under appeal, refer the case back to the General Court; and order the
   Commission to pay the costs.

   18.

   For its part, the Commission contends that the Court should dismiss the
   appeals and order the appellants to pay the costs.

   19.

   By decision of the President of the Third Chamber of the Court on
   22 February 2021, the two cases were joined for the purposes of the
   Opinion and the judgment.

   20.

   The parties replied to written questions put to them by the Court.

   III. Assessment

   21.

   While the Treaties do not contain a definition of what constitutes
   State aid, the Court has insisted that that concept requires an
   interpretation on the basis of its objective features. ( [8]8 )
   Interpreted in that manner, Article 107(1) TFEU comprises four (main)
   cumulative conditions: that the measure in question be imputable to the
   State or financed through State resources; that it concerns an
   undertaking; to which it grants an advantage; and that that measure is
   selective. A measure satisfying those criteria is generally considered
   to be capable of distorting competition and affecting trade in the
   internal market. ( [9]9 )

   22.

   Due to the development in how the purpose of State aid control is
   understood, ( [10]10 ) and as a consequence of Member States'
   inexhaustible imagination when it comes to intervening on the market,
   the Court is faced with the constant need to re-explain the criteria
   underlying Article 107(1) TFEU and to adjust them for their application
   to new situations. The present cases are no exception to that rule.

   23.

   Indeed, the scheme at issue in the present cases seems to be an
   imaginative effort to bring more tourists to Sardinia, including during
   the winter months, with a view to boosting that region's economic
   development.

   24.

   As Sardinia is an island, tourists can obviously arrive by air.
   Airlines do business with airports. The scheme envisaged by the Region
   therefore involved airports developing plans and working together with
   airlines in order to bring more flights to the island. If those plans
   were approved by the Region, the latter would provide funding to the
   airport operators, which would distribute those funds to the airlines
   concerned. The scheme therefore involved an interplay of both public
   (the Region) and private (the airports and the airlines) actors.

   25.

   For the purposes of the concept of State aid, the design of that scheme
   raises several questions. For instance, does the channelling of funds
   through a private intermediary rid those funds of their public
   provenance? Which of the private parties involved, if not both, must be
   deemed the beneficiary of that scheme? Finally, does the said scheme
   provide an advantage which would not have been available on the market?

   26.

   The Court has asked that I focus my analysis on providing answers to
   those questions. I will, therefore, restrict my opinion to the concepts
   of imputability (IV); secondary beneficiaries of aid (V); and the
   methodology for determining or ruling out the existence of an advantage
   (VI).

   IV. Imputability

   27.

   Financing by the State or through State resources is a constitutive
   element of the concept of State aid. ( [11]11 ) That means that the
   resources used in a measure must be imputable to the State. ( [12]12 )
   In their respective appeals, the appellants challenge precisely that
   determination: they argue that the funds received from the airport
   operators could not be imputed to the Region. ( [13]13 )

   28.

   Their arguments are essentially three-fold. ( [14]14 ) First, they
   argue that, in the judgments under appeal, the General Court failed to
   assess appropriately the criteria arising from the judgment in France v
   Commission. In particular, it is argued that the General Court's
   reliance on the existence of a supervisory mechanism to monitor the
   distribution and use of the funds at issue was insufficient to
   establish imputability. Second, the appellants allege that the General
   Court misapplied the judgment in Belgium and Magnetrol International v
   Commission, ( [15]15 ) in that it did not assess whether the airport
   operators had a margin of discretion to define essential elements of
   the aid scheme in question. Third, they argue that the presence of
   State resources may only be confirmed where the State exercises control
   over the funds as well as the administrators of those funds (in this
   case, the airport operators). Such a requirement would follow from the
   judgment of the Court in Germany v Commission. ( [16]16 )

   29.

   I disagree with all three arguments.

   30.

   As to the first argument, in the judgment in France v Commission, the
   Court laid down a number of indicators which collectively may show that
   measures taken by certain undertakings are actually imputable to the
   State. ( [17]17 ) Through that assessment, the Commission can then
   establish whether the circumstances of a case point towards the
   presence of State direction. ( [18]18 ) That is to say, it may conclude
   that the State was involved in the adoption of a measure, or at least
   that it is unlikely that it was not involved in influencing its
   adoption. ( [19]19 )

   31.

   However, the judgment in France v Commission concerned public
   undertakings. When faced with the question of the evidentiary threshold
   in relation to private undertakings, the Court in the judgment in
   Commission v Italy and Others explained that the Commission must
   furnish more than circumstantial evidence: what is required is that it
   establishes a complete chain of events and thus show decisive proof of
   imputability. ( [20]20 )

   32.

   Given the date of delivery of the judgment in Commission v Italy and
   Others, it is unfortunate that the parties to the present appeals were
   not able to take a position on whether that move away from the aphorism
   `circumstances cannot lie' should have brought about changes in the
   General Court's analysis.

   33.

   However, I read the judgments under appeal as indicating that the
   General Court appeared to be satisfied that the Commission's
   investigation revealed decisive proof of imputability.

   34.

   Thus, in paragraphs 70 and 94 of the respective judgments under appeal,
   the General Court observed that `it is clear ... from its
   implementation in practice that the funds transferred by that region to
   the airport operators were those used by the airport operators to
   remunerate co-contracting companies.' Similarly, in paragraphs 86
   and 118 thereof, the General Court explained that `the Commission
   found, in the contested decision, that the funds made available to the
   airport operators by the Autonomous Region had to be and were actually
   used in accordance with the instructions prescribed by that region, in
   this case as remuneration for services provided by the airlines.' (
   [21]21 ) Finally, in several paragraphs of the judgments under appeal,
   the General Court recalled that the airport operators themselves
   admitted to acting under the control and direction of the Region, and
   that they only transferred the funds at issue with the expectation that
   those sums would be repaid by that public authority. ( [22]22 )

   35.

   It follows, to my mind, that the General Court found that the evidence
   available to it showed, to the requisite standard of proof, evidence of
   the factors set out by the Court of Justice in the judgment in France v
   Commission, as applied to the case of private undertakings in the
   judgment in Commission v Italy and Others.

   36.

   As to the second argument, I am equally unconvinced that the General
   Court misapplied the judgment in Belgium and Magnetrol International v
   Commission. ( [23]23 )

   37.

   That case concerned, inter alia, the question of whether systematic
   administrative practices to approve requests for excess profit
   exemption by multinational companies were capable of constituting a
   relevant factor in the assessment of the de facto existence of an aid
   scheme. ( [24]24 )

   38.

   First, as the Commission rightly points out, the appeals are silent on
   how that judgment would be relevant in the context of the present
   cases. In the scheme at issue in the present cases, we are not faced
   with a systemic and unwritten administrative practice. Quite the
   opposite, in fact, the General Court found that there were express
   objectives and criteria laid down by the Region in Law 10/2010, which
   the operators were implementing. ( [25]25 )

   39.

   Second, even if that judgment were relevant, it should be observed
   that, in the judgments under appeal, the General Court did assess the
   remit of discretion of the airport operators to define essential
   elements of the aid scheme at issue. ( [26]26 ) It found that there was
   no indication that the airport operators could go beyond the margins
   set by Law 10/2010. Indeed, according to the General Court, the
   operators' discretion was limited by the Region to the extent that the
   latter was able to control both the amount of the aid to the airport
   operators as well as the redirection of those sums (in full) to the
   appellants. ( [27]27 )

   40.

   Turning finally to the third argument, it does not, in my view, follow
   from the judgment in Germany v Commission that State resources can only
   be deemed present when the administrator of State funds is subject to
   constant State control. What that case confirms is that the State
   ensures a power of disposal over the funds as well as their
   administration. ( [28]28 ) That requirement is far from novel. ( [29]29
   )

   41.

   The converse would, to my mind, permit the rules on State aid to be
   circumvented through the creation of institutions charged with
   administering aid, but which, as in the case of the airport operators,
   are not themselves controlled by the State. ( [30]30 )

   42.

   Indeed, it is for precisely that reason that the Court has consistently
   dismissed the need to distinguish between whether aid is granted
   directly by the State or by public or private bodies that have been
   established or appointed to implement the State's scheme. ( [31]31 )

   43.

   In view of the above, I propose that the Court should dismiss the
   appellants' challenge to the finding of imputability as unfounded. (
   [32]32 )

   V. Beneficiaries

   44.

   In the contested decision, the Commission found that a number of
   airlines, including the appellants, were beneficiaries of State aid
   (Article 1(2) thereof). At the same time, the Commission found that the
   airport operators did not receive such aid and thus could not be deemed
   beneficiaries of the aid scheme (Article 1(1) of the contested
   decision).

   45.

   The appellants contest the latter finding. They argue essentially that
   the airport operators received an advantage under that scheme.

   46.

   Even though the challenge to Article 1(1) of the decision is not the
   object of these appeals, those arguments are also relevant in relation
   to the challenge to Article 1(2) thereof, and possibly also as regards
   the effects arising from Article 2 of the contested decision, given
   that the resulting finding could have an impact on the amount of the
   aid to be repaid by the airlines. ( [33]33 )

   47.

   I will, therefore, address the two arguments on the basis of which the
   General Court concluded that the airport operators are not (secondary)
   beneficiaries under the aid scheme.

   48.

   The first (and main) argument relied on by the General Court is that
   the airport operators passed on to the airlines the entirety of the
   funds received from the Region.

   49.

   Is that the relevant argument? To my mind, it is not. ( [34]34 )

   50.

   An advantage can be conferred on undertakings other than those to which
   State resources are directly transferred (that is what is also referred
   to as an `indirect advantage'). ( [35]35 ) Such an advantage must be
   distinguished from mere secondary economic effects that arise and are
   inherent in most State aid measures, and which are exempt from State
   aid review. ( [36]36 )

   51.

   That raises the question of how to distinguish between economic effects
   that arise incidentally, as a side-effect of an aid scheme, from
   `actual' indirect advantages geared towards certain `hidden'
   beneficiaries.

   52.

   In its Notice on the notion of State aid, the Commission explains that
   `the foreseeable effects of the measure should be examined from an ex
   ante point of view'. ( [37]37 ) Thus, an indirect advantage would be
   present only `if the measure is designed in such a way as to channel
   its secondary effects towards identifiable undertakings or groups of
   undertakings'. ( [38]38 )

   53.

   Accordingly, it seems to me, that in order to verify that an indirect
   advantage is not `dressed up' as the ancillary effect of a scheme, in
   the present cases, the Commission was under an obligation to examine
   whether the design of the scheme envisaged ex ante certain advantages
   for the airport operators that were more than inherent features of the
   aid scheme in question. ( [39]39 ) After all, the airport operators had
   an active role to play in that design and so had an economic interest
   in that scheme operating at a certain level of capacity (and that is,
   despite their plans having to be approved by the Region and despite the
   fact that the latter oversaw the implementation of those plans).

   54.

   Indeed, I can envision a situation whereby, for instance, in the design
   of the flight schedule for a particular airport, the addition of one
   more flight than what would be necessary to cover its operating costs
   might have secured an advantage to that airport (and thus its
   operator). ( [40]40 )

   55.

   It is precisely for that reason, that I would argue that it is only
   logical that, where, as in the present cases, a party makes a
   sufficiently substantiated claim that there exists, in fact, a `hidden'
   or `additional' beneficiary, the General Court is required to assess,
   on the basis of all of the circumstances available to it, whether the
   Commission carried out a sufficiently complete assessment to identify
   also the presence of any indirect beneficiaries under that aid scheme.

   56.

   As the General Court did not do so in the present cases, I take the
   position that it erred in finding that the Commission was right to hold
   as irrelevant the ex ante analysis of the economic profitability of the
   service agreements concluded between the airport operators and the
   airlines, as accepted by the Region. ( [41]41 )

   57.

   The second argument relied on by the General Court is that the airport
   operators would not have entered into the agreements with the airlines
   had it not been for the Region's funding under the scheme. ( [42]42 )

   58.

   I do not see how that fact (if that is indeed a finding of fact)
   contributes to concluding in itself that participation in the aid
   scheme at issue did not create an advantage also for the airport
   operators.

   59.

   If anything, it points to the contrary conclusion: that the airport
   operators opted to participate in the scheme solely because they were
   the beneficiaries of an advantage that would not have accrued to them
   under normal market conditions.

   60.

   However, that element of advantage is precisely what was not
   investigated further. To my mind, a more thorough analysis as to the
   benefits potentially received by the airport operators would have been
   necessary, in order to remove all doubt.

   61.

   On that basis, I propose that the Court of Justice find that the
   General Court erred when it deemed the ex ante analysis of the economic
   profitability of the service agreements between the airport operators
   and the airlines irrelevant for determining the beneficiaries under the
   aid scheme at issue.

   VI. Advantage

   62.

   In their appeals, the appellants take issue with the fact that the
   General Court endorsed the Commission's finding that the MEO test was
   not applicable to the aid scheme at issue in order to exclude the
   existence of an advantage. ( [43]43 )

   63.

   The MEO test is an analytical tool used by the Commission to exclude
   the existence of an advantage to an undertaking obtained by virtue of
   the State's intervention on a given market. That test requires a
   complex economic analysis to assess whether a hypothetical private
   operator on a given market would engage in a comparable intervention
   and on the same terms as the State.

   64.

   As rightly referred to by the appellants, the Court has held that the
   Commission has an obligation to conduct the MEO test in all situations
   in which it is applicable. ( [44]44 )

   65.

   It is precisely that question of the applicability of the MEO test
   which has, so far, not been sufficiently illuminated by the case-law.
   In particular, it remains unclear in which situations the intervention
   of the State in the market is reasonably comparable to the potential
   behaviour of a market operator.

   66.

   In order to offer some ideas about how to resolve that question, it is
   useful to reflect on the purpose for which the MEO test was developed
   and how that purpose evolved with the case-law.

   A.   The purpose and evolution of the MEO test

   67.

   Introduced in parallel to the 1980 Transparency Directive, ( [45]45 )
   the MEO test was initially intended to assess the behaviour of public
   undertakings (that is to say, those in which the State had ownership)
   when competing on the same market as private undertakings. ( [46]46 )

   68.

   That is also where the idea of the State acting as a `shareholder'
   (which, in the language of the time, was known as the `acquisition of
   public authorities' holdings in company capital') originates from. (
   [47]47 ).

   69.

   The rationale of the MEO test was thus rooted in the need to find a way
   to enable the State to be a market participant without undermining the
   effectiveness of the State aid discipline. ( [48]48 ) More
   specifically, that test served to exclude from the concept of State aid
   those actions of the State whereby the latter `descended onto the
   market' to compete with other undertakings on like terms. Such like
   terms were deemed present where the State's investment in its own
   undertaking, or by its own undertakings, was of a type that could be
   contemplated by a private investor. ( [49]49 )

   70.

   It is precisely in the light of that rationale that the MEO test is
   frequently described in relation to the possibility for Member States
   to opt for a mixed economy, understood as one in which the State is
   also present on the market alongside private undertakings. ( [50]50 )
   Hence, the often-repeated reference to the property ownership
   neutrality of Article 345 TFEU and the principle of equal treatment
   linked thereto. ( [51]51 )

   71.

   However, the more recent case-law of the Court appears to indicate that
   the MEO test should also find application outside those traditional
   confines of State ownership and shareholding. ( [52]52 )

   72.

   That gives rise to two ways in which the applicability of the MEO test
   could be conceived.

   73.

   On the one hand, when viewed against its historical application, the
   applicability of the MEO test could be restricted solely to those
   situations in which the State acts as a shareholder on a particular
   market. One the other hand, given that the State can also intervene on
   the market through means other than ownership or shareholding,
   confining the MEO test to those situations appears too narrow an
   interpretation of the usefulness of that test.

   74.

   Indeed, to my mind, the MEO test can prove useful, and therefore
   applicable, in all those situations in which a State's intervention on
   the market can be assimilated to the action of a private market
   participant. That assessment of `equivalency' goes beyond the
   traditional confines of shareholding and ownership. That is, if a
   private market operator can be seen to act in the same way as the
   State, the MEO test can reveal whether the State's action was
   market-conform. That would then, in turn, assist in ruling out the
   existence of an advantage (and thereby a benefit constituting State
   aid).

   B.   The dichotomy of `public authority' versus `economic actor'

   75.

   Seemingly detached from its original rationale, the applicability of
   the MEO test appears to have evolved to be governed by a confusing
   (and, quite frankly, misleading) dichotomy.

   76.

   Consider, for instance, the judgment in Commission v EDF. ( [53]53 )
   There, the Court held that `the applicability of the private investor
   test ultimately depends ... on the Member State concerned having
   conferred, in its capacity as shareholder, and not in its capacity as
   public authority, an economic advantage on an undertaking belonging to
   it'. ( [54]54 ) In the same vein, in Ryanair v Commission, the General
   Court noted that `while it is clearly necessary, when the State acts as
   an undertaking operating as a private investor, to analyse its conduct
   by reference to the private investor principle, application of that
   principle must be excluded in the event that the State acts as a public
   authority.' ( [55]55 ) Finally, similar wording is also reproduced in
   the Commission's Notice on the notion of State aid. ( [56]56 )

   77.

   Judging by those examples and the language used therein, the question
   of the applicability of the MEO test is linked to the State acting as
   an economic operator (by means of shareholding). Those activities would
   have to be distinguished from the activities of the State acting as a
   public authority. In the former scenario, according to the logic of the
   case-law, the MEO test applies. In the latter scenario, that test would
   not apply.

   78.

   I do not think that that distinction holds water. ( [57]57 )

   79.

   There are two possible understandings of the expression of the `State
   acting as a public authority'. For one, that expression might denote a
   State which acts in the public interest (for example, to enhance
   economic development, save jobs, or protect the environment). For
   another, that expression can be understood as the State acting through
   instruments of public policy (that is to say, legislation, regulation
   or, for that matter, taxes). However, neither interpretation really
   supports the conclusions reached in the case-law (or by the Commission)
   as to why the MEO test was or was not applicable.

   80.

   As to the first understanding of the concept of a `State acting as a
   public authority', the case-law considers that the reasons which
   motivate a State to intervene on the market are irrelevant. ( [58]58 )
   Indeed, whether a State acts in order to preserve employment, to
   protect the environment, to enhance tourism or simply to manage its own
   company is wholly unrelated to the question of whether the beneficiary
   undertaking acquired a benefit arising from that intervention which
   could have been provided by the market under the same conditions. The
   applicability of the MEO test cannot, therefore, be excluded for those
   reasons alone.

   81.

   As to the second understanding, it must be observed that the MEO test
   was applied in various instances in which the State acted through the
   use of instruments of public power; that is to say, instruments which
   are not available to a private market operator. For instance, in a
   number of cases, the State intervened on the market to defer or forgive
   the payment of tax debt and other public financial obligations owed to
   the State by private undertakings. ( [59]59 ) Similarly, in Commission
   v EDF, ( [60]60 ) the State intervened through fiscal and regulatory
   powers, and in Ryanair v Commission ( [61]61 ) the intervention
   occurred through legislative and regulatory powers. In all those cases,
   however, some form of the MEO test was applied. That means that its
   applicability cannot be excluded solely because the State is acting
   through instruments of public power.

   82.

   In untying that dichotomy, it certainly does not help that the case-law
   sometimes draws on the distinction between the State acting as an
   `economic actor' and the State acting as a `public authority' not in
   order to decide on the applicability of the MEO test, but rather in the
   course of its application. ( [62]62 ) That is so particularly in
   situations when the Court wishes to stress that the costs and benefits
   of the State as a public authority, relating, for instance, to the rate
   of employment or increase in budgetary revenues, are not to be taken
   into account when applying that test. Conceptually, that distinction is
   logical, as a hypothetical market operator, who, after all, serves as
   comparator, would not take such concerns into consideration when
   deciding on its market moves. ( [63]63 ) However, those considerations
   only enter the picture once the applicability of the MEO test is
   confirmed and not at any point prior to that.

   83.

   In short, I take the position that it is incorrect to draw the dividing
   line of applicability of the MEO test on the basis of the dichotomy
   between `public authority' and `economic operator'. The MEO test seeks
   to determine or discard the existence of an advantage created for an
   undertaking by reference to the market-economic conformity of certain
   behaviour by the State. As such, it is realistically applicable in all
   situations in which the State performs activities comparable to `market
   activities', including when `the State as a public authority' acts in a
   way comparable to a market operator. That implies that the
   applicability of the MEO test should be decided by an objective enquiry
   into how the State engages with undertakings on a given market,
   irrespective of the form and reasons for that engagement.

   C.   How to decide whether the MEO test is applicable?

   84.

   On the basis of the foregoing, I am of the opinion that the
   applicability of the MEO test is governed by the nature of the
   activities of the State. That is to say that the applicability of the
   MEO test presupposes that the State intervenes through an activity that
   is comparable to what could be envisaged on the market.

   85.

   But how does one assess whether an equivalent activity is possible on
   the market?

   86.

   To my mind, the Commission must place itself in the position of the
   beneficiary undertaking and assess, from its point of view, whether the
   benefit received (for example, the grant of a credit guarantee, capital
   injection, or debt forgiveness) could also have been offered by other
   undertakings on that market. If the answer to that question is in the
   affirmative, the MEO test is applicable.

   87.

   A few examples might clarify my proposition. On the market, an
   undertaking can receive a loan deferral from a creditor. That activity
   can also be performed by the State: it could, for example, approve a
   tax deferral to an undertaking. As such, from the point of view of the
   recipient undertaking, the State is granting a benefit of the same
   nature as a (private) creditor. As State action of that kind,
   consequently, finds equivalency on the market, notwithstanding the fact
   that the State may have acted as a public authority, it must be
   possible to assess its intervention by means of the MEO test. ( [64]64
   )

   88.

   To take a second example: if the State purchases marketing services on
   the market, this benefits the undertaking from which it purchases those
   services. The acquisition of such services is not an activity that only
   a State can perform. It is a simple purchasing transaction. In other
   words, given that the State performs an activity comparable to that of
   any other private undertaking, the MEO test should be applicable to
   verify the market-conform nature of that (service) acquisition.

   89.

   Consider, lastly, a third example: if a State awards an otherwise
   fee-incurring operating licence to an undertaking free of charge, the
   State intervenes on a market through the performance of an activity
   that it alone holds as gatekeeper to that market. A private undertaking
   could never replicate that activity. Therefore, in the assessment of
   whether that free operating licence constitutes State aid, there is no
   place for the MEO test. The yardstick of comparison could never be a
   private economic operator.

   90.

   The point I wish to make with those examples is the following: the MEO
   test is applicable whenever a State performs an activity that could be
   replicated on the market by private operators. Obviously, that can
   occur not only when the State acts as a shareholder, but also when it
   acts as a public authority (whether it pursues economic, social,
   environmental or other policy aims). The determinative question is
   whether the type of economic activity in question is of a nature that
   could be envisaged on the market. If the answer to that question is in
   the affirmative, the MEO test is applicable.

   91.

   I would like to point out that the applicability of the MEO test does
   not, in any way, prejudice the result of its application. Whether or
   not an activity could be replicated on the market (so that the MEO test
   is applicable) is not decisive for the question of whether a particular
   benefit constitutes an advantage. That latter question depends on the
   application of the MEO test, which is based on an economic analysis
   examining whether a (hypothetical) market operator would grant the same
   benefit under similar conditions as those granted by the State. (
   [65]65 )

   D.   Application to the present cases

   92.

   In the judgments under appeal, the General Court upheld the
   Commission's dismissal of the applicability of the MEO test on the
   basis of two arguments. First, it considered that the Region did not
   act as a shareholder, as it was not the owner of the airport operators
   involved. ( [66]66 ) Second, it relied on the fact that, in adopting
   the aid scheme, the Region acted `in the framework of a general
   economic policy', therefore `exclusively as a public authority'. (
   [67]67 )

   93.

   In the light of the foregoing explanations, I am of the opinion that
   the arguments put forward by the General Court are insufficient to
   exclude the applicability of the MEO test.

   94.

   As I have explained in points 71, 74 and 83 of this Opinion, the more
   recent case-law of the Court as well as the entire rationale underlying
   the MEO test do not limit its applicability solely to situations where
   a State becomes part of the market by means of ownership in an
   undertaking. The fact that the Region does not own the airport
   operators through which it has implemented its scheme is, therefore, in
   itself insufficient to exclude the application of the MEO test.

   95.

   Equally, it is not decisive for an assessment relating to the
   applicability of the MEO test whether the Region acted `in the
   framework of a general economic policy' or as a `public authority'. As
   I have explained in point 80 of this Opinion, the intention behind the
   State's intervention is simply not a factor to take into account at
   this stage of the analysis.

   96.

   Indeed, as I have explained in the previous section of this Opinion,
   when reviewing whether the Commission appropriately excluded the
   applicability of the MEO test, the General Court should have verified
   whether that institution assessed, from the point of view of the
   appellants, whether the funds received from the Region were granted by
   means of an activity which could have been replicated on the market.

   97.

   I consider, therefore, that the General Court erred in the way it has
   justified the non-applicability of the MEO test in the present cases.

   98.

   Next, after concluding that the MEO test was not applicable, the
   General Court assessed the existence of an advantage to the appellants
   by having regard to the activities of the Region from the perspective
   of an acquirer of services.

   99.

   Even though I am doubtful that the award of grants for the creation of
   new flights may constitute an acquisition of services, I agree that, in
   principle, the `service acquirer' test could indeed act as a gateway to
   determining the existence or exclusion of an advantage. However, given
   that that approach presupposes that the State acted as an economic
   operator in order to purchase services on a market, that assessment
   constitutes, by its nature, nothing more than one of the iterations of
   the MEO test. That is, the very test which the General Court rejected
   as inapplicable because it considered that the Region had not acted as
   an economic operator.

   100.

   Be that as it may, there are two points relating to the General Court's
   alternative assessment (relying on the `service acquirer' test) that
   deserve further analysis. The first point relates to the appellants'
   argument that the General Court exceeded its jurisdiction when
   upholding the contested decision on grounds of alternative reasoning.
   The second point relates to the steps of the analysis within the
   service purchaser test, as proposed by the General Court.

   101.

   First, as to the competence of the General Court, it is true that, by
   virtue of the administrative nature of the State aid procedure, the
   General Court enjoys only limited jurisdiction. As such, it may not
   substitute its own economic assessment for that of the Commission. (
   [68]68 )

   102.

   In essence, that requires the General Court to assess whether the
   statement of reasons in the contested decision contains all the
   relevant information to allow it to substantiate the conclusions drawn
   from it. ( [69]69 ) That is particularly so, given that, in the realm
   of State aid, the Commission closes its investigative procedure by way
   of a decision. ( [70]70 )

   103.

   However, the Court of Justice has clarified that, except where there is
   no material factor to justify that course of action, the General Court
   may be led, in proceedings for annulment, to interpret the reasoning of
   the contested measure in a manner which differs from that of its
   author, and even, in certain circumstances, to reject the latter's
   formal statement of reasons. ( [71]71 )

   104.

   It is precisely that leeway which the General Court made use of in the
   present cases. Thus, in the judgments under appeal, that court
   complemented the (admittedly short and, by itself, insufficient)
   reasoning already contained in recital 386 of the contested decision (
   [72]72 ) by arguments exchanged between the parties as well as
   information obtained during the written and oral procedures before
   it. ( [73]73 )

   105.

   Such a situation does not, therefore, fall within the category of
   substituted reasoning in the context of the General Court's review
   jurisdiction since the General Court relied on the existing reasoning
   in the decision, without changing its content.

   106.

   Second, as to the constituent elements of the `service acquirer' test,
   the General Court considered that the existence of an advantage could
   only be excluded if, first, the acquisition of the services in question
   occurred by means of an open, transparent and non-discriminatory tender
   procedure and, second, the Region had an actual need for the acquired
   services.

   107.

   As to the requirement for an open and competitive selection procedure,
   I can be brief. The economic rationality of purchases of goods and
   services can indeed be demonstrated by the very fact that they were
   made through such a procedure. That is why such purchases by public
   authorities for their own operating purposes are, as a rule, subject to
   the public procurement directives. ( [74]74 ) However, I am not
   convinced that, in a situation such as that in the present cases, in
   which the Region acted through the intermediary of private market
   operators, insisting on a procedure similar to that required by the
   public procurement directives would be the only way to ensure that the
   services in question are priced at market terms.

   108.

   As far as the genuine need requirement is concerned, the apparent logic
   underlying that assessment seems to be the following: even if purchases
   by a public authority were made at market terms, there is the
   additional requirement that those purchases are proportionate to the
   `genuine needs' of the authority in question. ( [75]75 )

   109.

   It is true that an economically rational market operator is presumed to
   acquire only those services (or goods) that it actually requires for
   the performance of its activities (or to achieve the aim it pursues). (
   [76]76 ) The General Court considered that the Region could have a
   genuine need to purchase the services in question (related to flights
   and marketing) in order to promote the island of Sardinia as a tourist
   destination.

   110.

   However, how is one to quantify that need?

   111.

   In the present cases, the Region did not `acquire' flights and
   marketing services to fulfil its own needs (as, for example, when a
   State buys office chairs for government offices). Accordingly, there
   was no internal benchmark against which the number of acquired services
   could be assessed. What the Region sought by purchasing those services
   (if indeed both of them can be considered services) was to create, at
   least in part, new supply (through flights) and new demand (through
   marketing services) for the Sardinian market. For that type of
   activity, a market operator would have conducted a cost-benefit
   analysis taking account of the funds required and the expected return.
   It is not clear from the contested decision whether the Region carried
   out such an assessment or whether it operated according to set
   expectations relating to, for instance, the number of tourists the
   scheme was intended to attract. Nor does it appear from the contested
   decision that the Commission tried to investigate whether such an
   analysis had been carried out.

   112.

   In such circumstances, I am at a loss as to the basis on which the
   General Court could legitimately claim that the acquisition of the
   marketing services in question was in excess of `genuine needs'. (
   [77]77 ) Consequently, I consider that the General Court also erred in
   the application of the elements constituting its `service acquirer'
   test.

   113.

   I therefore propose that the Court of Justice should uphold the
   appellants' arguments that the General Court erred in the way in which
   it conducted the `service acquirer' test.

   VII. Conclusion

   114.

   On the basis of the foregoing conclusions, I propose that the Court of
   Justice should uphold the appellants' arguments relating to the way in
   which the General Court:

   -

   confirmed the European Commission's finding that the ex ante analysis
   of the economic profitability of the service agreements concluded
   between the airport operators and the airlines was irrelevant for
   determining the beneficiaries under the aid scheme at issue;

   -

   justified the non-applicability of the market economy operator test;
   and

   -

   conducted the `service acquirer' test.
     __________________________________________________________________

   ( [78]1 ) Original language: English.

   ( [79]2 ) From the poem `La primavera' by Grazia Deledda.

   ( [80]3 ) In 1926, Deledda (1871 to 1936) became the first Italian
   woman to win the Nobel Prize in Literature.

   ( [81]4 ) Commission Decision (EU) 2017/1861 of 29 July 2016 on State
   aid SA33983 (2013/C) (ex 2012/NN) (ex 2011/N) - Italy - Compensation to
   Sardinian airports for public service obligations (SGEI) ([82]OJ 2017
   L 268, p. 1).

   ( [83]5 ) Judgments of 13 May 2020, Volotea v Commission ([84]T-607/17,
   [85]EU:T:2020:180), and of 13 May 2020, easyJet Airline v Commission
   ([86]T-8/18, [87]EU:T:2020:182) (`the judgments under appeal').

   ( [88]6 ) Ibid., paragraphs 1 to 41 and 1 to 45 respectively.

   ( [89]7 ) Bolletino ufficiale della Regione autonoma della Sardegna
   no12, 16 April 2010.

   ( [90]8 ) See, for instance, judgment of 1 July 2008, Chronopost v UFEX
   and Others ([91]C-341/06 P and C-342/06 P, [92]EU:C:2008:375,
   paragraph [93]141 and the case-law cited).

   ( [94]9 ) See judgment of 17 September 1980, Philip Morris Holland v
   Commission ([95]730/79, [96]EU:C:1980:209, paragraph [97]11) (finding
   that competition is considered to have been distorted if a measure
   mitigates the burden imposed on a beneficiary undertaking and thereby
   strengthens its position compared with competing undertakings). On the
   minor role played in practice by the criteria relating to the
   distortion of competition and the affectation to the internal market,
   including the differential approach taken as regards Article 101 TFEU,
   see Soltész, U., `Part II: Article 107 TFEU', in Säcker, F.J,
   Montag, F. (eds), European State Aid Law: A Commentary, Bloomsbury
   Publishing, London, 2016, points 454, 489 and 490.

   ( [98]10 ) See, to that effect, Merola, M. and Caliento, F., `Is the
   notion of aid broadening or shrinking over time, and if so, why? A
   subjective view on the rationale of the case law', in Parcu, L.,
   Monti, G. and Botta, M., EU State Aid Law. Emerging Trends at the
   National and EU Level, Edward Elgar Publishing, Cheltenham, 2020,
   pp. 46 to 48 (explaining that State aid control has become a governance
   tool to police Member State's economic policies).

   ( [99]11 ) As Advocate General Jacobs explained in his Opinion in
   PreussenElektra ([100]C-379/98, [101]EU:C:2000:585, points [102]114
   to [103]133).

   ( [104]12 ) Judgment of 16 May 2002, France v Commission
   ([105]C-482/99, [106]EU:C:2002:294, `the judgment in France v
   Commission', paragraphs 51 to 57).

   ( [107]13 ) In this regard, I observe that the first and second
   branches of the second part of the first ground of appeal in Case
   C-331/20 P are directed against paragraphs 69 to 98 of the judgment in
   Case T-607/17, whereas the third ground of appeal in Case C-343/20 P is
   directed specifically against paragraphs 126, 127, 160 and 161 of the
   judgment in Case T-8/18.

   ( [108]14 ) On various occasions within the first and second branches
   of the second part of the first ground of appeal in Case C-331/20 P and
   the third ground of appeal in Case C-343/20 P, the appellants equally
   criticise, in generic terms, various factual determinations of the
   General Court. Given the jurisdiction of the Court of Justice on
   appeal, those arguments are inadmissible.

   ( [109]15 ) Judgment of 14 February 2019 ([110]T-131/16 and T-263/16,
   [111]EU:T:2019:91, `the judgment in Belgium and Magnetrol International
   v Commission').

   ( [112]16 ) Judgment of 28 March 2019 ([113]C-405/16 P,
   [114]EU:C:2019:268).

   ( [115]17 ) Paragraphs 52 to 56 of the judgment in France v Commission.
   As recalled, more recently, in judgment of 2 March 2021, Commission v
   Italy and Others ([116]C-425/19 P, [117]EU:C:2021:154, `the judgment in
   Commission v Italy and Others', paragraphs 61 to 62), those include,
   specifically, `any indication, in the particular case, either, on the
   one hand, of the involvement by the public authorities in the adoption
   of a measure or the unlikelihood of their not being involved, having
   regard also to the compass of the measure, its content or the
   conditions which it contains, or, on the other hand, the absence of
   those authorities' involvement in the adoption of that measure ...'.
   That conclusion can be supported by evidence of the fact that `the
   public undertaking in question could not have taken the decision at
   issue without taking account of the requirements of the public
   authorities or the directives emanating from the public authorities,
   the integration of the public undertaking into the structures of the
   public administration, the nature of its activities and the exercise of
   those activities on the market in normal conditions of competition with
   private operators, the legal status of the undertaking as well as the
   intensity of the supervision exercised by the public authorities.'

   ( [118]18 ) Or, as Maxian Rusche, T., Micheau, C., Piffaut, H., and Van
   de Casteele, K., have termed it, the presence of a `smoking gun'. See
   Faull, J., and Nikpay, A., (eds), The EU Law of Competition, 3rd ed.,
   Oxford University Press, Oxford, 2014, point 17.33.

   ( [119]19 ) See also, judgments of 17 September 2014, Commerz Nederland
   ([120]C-242/13, [121]EU:C:2014:2224, paragraphs [122]31 to [123]33); of
   18 May 2017, Fondul Proprietatea ([124]C-150/16, [125]EU:C:2017:388,
   paragraphs [126]18 to [127]20); and of 23 November 2017, SACE and Sace
   BT v Commission ([128]C-472/15 P, not published, [129]EU:C:2017:885,
   paragraphs [130]34 to [131]36).

   ( [132]20 ) See, to that effect, paragraphs 67, 69 and 72 of the
   judgment in Commission v Italy and Others.

   ( [133]21 ) Emphasis added.

   ( [134]22 ) Judgments of 13 May 2020, Volotea v Commission
   ([135]T-607/17, [136]EU:T:2020:180, paragraphs [137]72, [138]75,
   [139]91 and [140]104), and of 13 May 2020, easyJet Airline v Commission
   ([141]T-8/18, [142]EU:T:2020:182, paragraphs [143]96, [144]99,and 125).

   ( [145]23 ) Paragraph 120 of the judgment in Belgium and Magnetrol
   International v Commission.

   ( [146]24 ) I note that the judgment was overturned on appeal, given
   that the Court deemed precisely such practices to be a relevant
   indicator for the purposes of finding the lack of any `further
   implementing measure' within the meaning of Article 1(d) of Council
   Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules
   for the application of Article 108 of the Treaty on the Functioning of
   the European Union ([147]OJ 2015 L 248, p. 9). See paragraph 112 of the
   judgment in Belgium and Magnetrol International v Commission.

   ( [148]25 ) Judgments of 13 May 2020, Volotea v Commission
   ([149]T-607/17, [150]EU:T:2020:180, paragraphs [151]88 to [152]92), and
   of 13 May 2020, easyJet Airline v Commission ([153]T-8/18,
   [154]EU:T:2020:182, paragraphs [155]121 to [156]125).

   ( [157]26 ) Ibid., paragraphs 71 and 72 and 95 and 96 respectively.

   ( [158]27 ) Ibid., paragraphs 94 and 98 and 129 to 132 respectively.

   ( [159]28 ) Judgment of 28 March 2019, Germany v Commission
   ([160]C-405/16 P, [161]EU:C:2019:268, paragraph [162]73). See also, to
   that effect, Opinion of Advocate General Campos Sánchez-Bordona in
   Georgsmarienhütte and Others ([163]C-135/16, [164]EU:C:2018:120,
   point [165]112).

   ( [166]29 ) See, for instance, judgments of 17 July 2008, Essent
   Netwerk Noord and Others ([167]C-206/06, [168]EU:C:2008:413,
   paragraph [169]70); of 19 December 2013, Association Vent De Colčre!
   and Others ([170]C-262/12, [171]EU:C:2013:851, paragraph [172]21); and
   of 13 September 2017, ENEA ([173]C-329/15, [174]EU:C:2017:671,
   paragraph [175]25).

   ( [176]30 ) See, in particular, judgment of 2 February 1988, Kwekerij
   van der Kooy and Others v Commission ([177]67/85, 68/85 and 70/85,
   [178]EU:C:1988:38, paragraph [179]35), as more recently recalled in the
   judgment of 9 November 2017, Commission v TV2/Danmark ([180]C-656/15 P,
   [181]EU:C:2017:836, paragraph [182]45).

   ( [183]31 ) See, in particular, judgments of 13 March
   2001, PreussenElektra ([184]C-379/98, [185]EU:C:2001:160,
   paragraph [186]58), and of 30 May 2013, Doux Élevage and Coopérative
   agricole UKL-ARREE ([187]C-677/11, [188]EU:C:2013:348,
   paragraph [189]26).

   ( [190]32 ) That finding relates to the admissible parts of the first
   and second branches of the second part of the first ground of appeal in
   Case C-331/20 P and of the third ground of appeal in Case C-343/20 P.

   ( [191]33 ) An aspect correctly highlighted by the General Court in its
   judgment of 13 May 2020, Volotea v Commission ([192]T-607/17,
   [193]EU:T:2020:180, paragraph [194]58).

   ( [195]34 ) Although arising from different circumstances, and raised
   by the appellants, indicative in that respect is the judgment of
   25 July 2018, Commission v Spain and Others ([196]C-128/16 P,
   [197]EU:C:2018:591). There, the Court found that the mere fact that an
   advantage, granted to an economic interest organisation, is passed on
   in its entirety to the members of that organisation does not
   automatically mean that the former is not a beneficiary for the
   purposes of the aid scheme in question (ibid., paragraphs 45 and 46).

   ( [198]35 ) See Commission Notice on the notion of State aid as
   referred to in Article 107(1) of the Treaty on the Functioning of the
   European Union ([199]OJ 2016 C 262, p. 1), point 115.

   ( [200]36 ) See, most notably, judgment of 13 March 2001,
   PreussenElektra ([201]C-379/98, [202]EU:C:2001:160, paragraph [203]62)
   (finding that a diminution in tax receipts for the State is an
   `inherent feature' of the legislative provision in question). See also
   judgments of 17 March 1993, Sloman Neptun ([204]C-72/91 and C-73/91,
   [205]EU:C:1993:97, paragraph [206]21); of 1 December 1998, Ecotrade
   ([207]C-200/97, [208]EU:C:1998:579, paragraph [209]36); of 17 June
   1999, Piaggio ([210]C-295/97, [211]EU:C:1999:313, paragraph [212]42);
   and of 15 July 2004, Pearle and Others ([213]C-345/02,
   [214]EU:C:2004:448, paragraph [215]36).

   ( [216]37 ) Commission Notice on the notion of State aid as referred to
   in Article 107(1) of the Treaty on the Functioning of the European
   Union ([217]OJ 2016 C 262, p. 1), point 116.

   ( [218]38 ) Ibid.

   ( [219]39 ) Such true ancillary effects are present solely by reason of
   a functional or automatic link with the measure in question, such that
   they follow naturally from that scheme or because those ancillary
   effects are necessary for the proper functioning of the activity
   supported thereunder.

   ( [220]40 ) See, to that effect, Nicolaides, P., State Aid Uncovered,
   Critical Analysis of Development in State Aid 2020, Lexxion, Berlin,
   2021, pp. 86 and 87.

   ( [221]41 ) See judgments of 13 May 2020, Volotea v Commission
   ([222]T-607/17, [223]EU:T:2020:180, paragraph [224]125), and of 13 May
   2020, easyJet Airline v Commission ([225]T-8/18, [226]EU:T:2020:182,
   paragraph [227]191).

   ( [228]42 ) See judgment of 13 May 2020, easyJet Airline v Commission
   ([229]T-8/18, [230]EU:T:2020:182, paragraph [231]225).

   ( [232]43 ) These arguments are presented in the first and third
   branches of the first part of the first ground of appeal in Case
   C-331/20 P and in the first two grounds of appeal in Case C-343/20 P
   and are directed respectively against paragraphs 122 to 145 of the
   judgment in Case T-607/17 and paragraphs 175 to 177 and 189 to 191 of
   the judgment in Case T-8/18.

   ( [233]44 ) See judgment of 5 June 2012, Commission v EDF
   ([234]C-124/10 P, [235]EU:C:2012:318, paragraph [236]103) (`the private
   investor test is not an exception which applies only if a Member State
   so requests .... It follows ... that, where it is applicable, that test
   is among the factors which the Commission is required to take into
   account for the purposes of establishing the existence of such aid.').
   See also judgment of 20 September 2017, Commission v Frucona Kosice
   ([237]C-300/16 P, [238]EU:C:2017:706, paragraphs [239]23 to [240]25
   and [241]29).

   ( [242]45 ) Commission Directive 80/723/EEC of 25 June 1980 on the
   transparency of financial relations between Member States and public
   undertakings ([243]OJ 1980 L 195, p. 35), now codified in Commission
   Directive 2006/111/EC of 16 November 2006 on the transparency of
   financial relations between Member States and public undertakings as
   well as on financial transparency within certain undertakings ([244]OJ
   2006 L 318, p. 17).

   ( [245]46 ) Piernas López, J.J., The Concept of State Aid Under EU Law:
   From Internal market to competition and beyond, Oxford University
   Press, Oxford, 2015, p. 78.

   ( [246]47 ) See Application of Articles 92 and 93 to public
   authorities' holdings in company capital (Bulletin of the European
   Communities, 9-1984), pp. 28 and 93 to 95.

   ( [247]48 ) See, to that effect, Belgium's argumentation in judgment of
   10 July 1986, Belgium v Commission ([248]40/85, [249]EU:C:1986:305,
   paragraph [250]9), claiming that if the Region of Wallonia were
   prohibited from taking part in the increase in capital of an
   undertaking that would result in the discrimination of the State in
   relation to private shareholders in the same company.

   ( [251]49 ) As appears from the early judgments of the Court on the
   similar rule contained in Article 4(c) of the Treaty establishing the
   European Coal and Steel Community (ECSC), the existence of an advantage
   cannot be excluded unless the return is `at all times equivalent to the
   amount of expenditure'. See, for instance, judgment of 23 February
   1961, De Gezamenlijke Steenkolenmijnen in Limburg v High Authority
   ([252]30/59, [253]EU:C:1961:2, p. [254]31).

   ( [255]50 ) See, for instance, Second Report on Competition Policy,
   annexed to the Sixth General Report on the Activities of the
   Communities (Office for Official Publications of the European
   Communities, 1973), point 124, which uses the concept of `State
   capitalism'.

   ( [256]51 ) See for example, Commission Notice on the notion of State
   aid as referred to in Article 107(1) of the Treaty on the Functioning
   of the European Union ([257]OJ 2016 C 262, p. 1), point 73: `The Union
   legal order is neutral with regard to the system of property
   ownership ... and does not in any way prejudice the right of Member
   States to act as economic operators.' See also, Hancher, L.,
   Ottervanger, T., and Slot, P.J., EU State Aids , Sweet and Maxwell,
   London, 2021, p. 96 and the Opinion of Advocate General Szpunar in
   Commission v FIH Holding and FIH Erhvervsbank ([258]C-579/16 P,
   [259]EU:C:2017:911, point [260]34).

   ( [261]52 ) See judgments of 24 January 2013, Frucona Kosice v
   Commission ([262]C-73/11 P, [263]EU:C:2013:32, paragraph [264]71), and
   of 6 March 2018, Commission v FIH Holding and FIH Erhvervsbank
   ([265]C-579/16 P, [266]EU:C:2018:159, paragraph [267]46 and the
   case-law cited).

   ( [268]53 ) Judgment of 5 June 2012 ([269]C-124/10 P,
   [270]EU:C:2012:318).

   ( [271]54 ) Ibid., paragraph 81 (emphasis added). However, that case
   has to be viewed within its own context, in which the French State was
   indeed the owner of Électricité de France (EDF). Therefore, Court's
   statement that, `in the case of public undertakings', the assessment of
   the presence of an advantage is made by applying the `private investor
   test' (ibid., paragraph 78) cannot be understood as meaning that that
   test is applicable only in such situations.

   ( [272]55 ) Judgment of 17 December 2008 ([273]T-196/04,
   [274]EU:T:2008:585, paragraph [275]85) (emphasis added). In that case,
   however, in a similar way as in judgment of 5 June 2012, Commission v
   EDF ([276]C-124/10 P, [277]EU:C:2012:318), the State was the owner of
   the beneficiary airport. Along the same lines, see also judgment of
   11 September 2012, Corsica Ferries France v Commission ([278]T-565/08,
   [279]EU:T:2012:415, paragraph [280]79), upheld on appeal in judgment of
   4 September 2014, SNCM and France v Corsica Ferries France
   ([281]C-533/12 P and C-536/12 P, [282]EU:C:2014:2142).

   ( [283]56 ) Commission Notice on the notion of State aid as referred to
   in Article 107(1) of the Treaty on the Functioning of the European
   Union ([284]OJ 2016 C 262, p. 1), point 77.

   ( [285]57 ) Along the same lines, see Kohler, M., `New Trends
   Concerning the Application of the Private Investor Test', European
   State Aid Law Quarterly, 2011, Vol. 10(1), pp. 21 to 33.

   ( [286]58 ) See judgments of 2 July 1974, Italy v Commission
   ([287]173/73, [288]EU:C:1974:71, paragraph [289]13); of 29 February
   1996, Belgium v Commission ([290]C-56/93, [291]EU:C:1996:64,
   paragraph [292]79); and of 5 June 2012, Commission v EDF
   ([293]C-124/10 P, [294]EU:C:2012:318, paragraph [295]77).

   ( [296]59 ) See, for instance, judgments 22 November 2007, Spain v
   Lenzing ([297]C-525/04 P, [298]EU:C:2007:698, paragraph [299]2, quoting
   paragraph 27 of the judgment under appeal in that case) (deferral of
   social security payments); of 14 September 2004, Spain v Commission
   ([300]C-276/02, [301]EU:C:2004:521, paragraph [302]13) (non-payment of
   taxes and social security contributions); of 21 March 2013, Commission
   v Buczek Automotive ([303]C-405/11 P, not published,
   [304]EU:C:2013:186, paragraph [305]2, quoting paragraph 14 of the
   judgment under appeal in that case) (waiver of public debt); of
   20 September 2017, Commission v Frucona Kosice ([306]C-300/16 P,
   [307]EU:C:2017:706, paragraph [308]2, quoting paragraph 25 of the
   judgment under appeal in that case) (remission of tax debt); and of
   11 July 2002, HAMSA v Commission ([309]T-152/99, [310]EU:T:2002:188,
   paragraph [311]10) (public debt remission).

   ( [312]60 ) Judgment of 5 June 2012, Commission v EDF ([313]C-124/10 P,
   [314]EU:C:2012:318, paragraphs [315]17 and [316]21).

   ( [317]61 ) Judgment of 17 December 2008, Ryanair v Commission
   ([318]T-196/04, [319]EU:T:2008:585, paragraph [320]15).

   ( [321]62 ) See judgment of 14 September 1994, Spain v Commission
   ([322]C-278/92 to C-280/92, [323]EU:C:1994:325, paragraph [324]22), and
   of 28 January 2003, Germany v Commission ([325]C-334/99,
   [326]EU:C:2003:55, paragraph [327]134). See also Kohler, M., `New
   Trends Concerning the Application of the Private Investor Test',
   European State Aid Law Quarterly, 2011, Vol. 10(1), pp. 21-33, at
   p. 26.

   ( [328]63 ) The point being that only those costs and benefits that can
   be expected to be relevant to a market operator can be taken into
   consideration when assessing whether such a hypothetical operator would
   act in the same way as the State.

   ( [329]64 ) Whether the undertaking at issue would indeed be able to
   negotiate a loan deferral under the same or similar conditions as the
   one granted by State is then a question that goes to the application of
   the MEO test. It is not one that relates to the applicability of that
   test.

   ( [330]65 ) As to the methods to establish compliance with the MEO
   test, see Robins, N. and Puglisi, L., `The market economy operator
   principle: an economic role model for assessing economic advantage', in
   Hancher, L. and Piernas Lopez, J.J, (eds) Research handbook on European
   State Aid Law, Edward Elgar Publishing, Cheltenham, 2021, pp. 15 to 39,
   at p. 21 et seq.

   ( [331]66 ) Judgments of 13 May 2020, Volotea v Commission
   ([332]T-607/17, [333]EU:T:2020:180, paragraphs [334]118, [335]119
   and [336]127), and of 13 May 2020, easyJet Airline v Commission
   ([337]T-8/18, [338]EU:T:2020:182, paragraphs [339]176, [340]177
   and [341]193).

   ( [342]67 ) Ibid., paragraphs 125 and 191 respectively.

   ( [343]68 ) See, for instance, judgment of 10 December 2020, Comune di
   Milano v Commission ([344]C-160/19 P, [345]EU:C:2020:1012,
   paragraph [346]100 and the case-law cited).

   ( [347]69 ) See, for instance, judgment of 11 November 2021, Autostrada
   Wielkopolska v Commission and Poland ([348]C-933/19 P,
   [349]EU:C:2021:905, paragraph [350]117).

   ( [351]70 ) Which means that a more thorough statement of reasons is
   required of the Commission than in the case of acts of general
   application, such as regulations. See, for instance, judgments of
   15 April 2008, Nuova Agricast ([352]C-390/06, [353]EU:C:2008:224,
   paragraph [354]79 and the case-law cited), and of 10 September 2015,
   Fliesen-Zentrum Deutschland ([355]C-687/13, [356]EU:C:2015:573,
   paragraphs [357]76 to [358]78 and the case-law cited).

   ( [359]71 ) Judgment of 6 October 2021, World Duty Free Group and Spain
   v Commission ([360]C-51/19 P and C-64/19 P, [361]EU:C:2021:793,
   paragraph [362]71 and the case-law cited).

   ( [363]72 ) The relevant part of that recital reads as follows: `In
   addition, despite the provisions of Law 10/2010, no tender procedure
   was put in place with a view to selecting airlines and funding the
   activity plans. Airport operators published notices on their respective
   websites and they chose the best offer, meaning that the financial
   support provided to airlines did not follow an open and transparent
   tender procedure.... As a consequence, even if proper tender procedures
   had been followed to select airlines, this could not have ruled out the
   existence of an advantage.'

   ( [364]73 ) Judgments of 13 May 2020, Volotea v Commission
   ([365]T-607/17, [366]EU:T:2020:180, paragraph [367]131 to [368]145) and
   of 13 May 2020, easyJet Airline v Commission ([369]T-8/18,
   [370]EU:T:2020:182, paragraph [371]198 to [372]211).

   ( [373]74 ) Although a tender procedure is not always necessary to
   exclude the presence of aid. See judgment of 24 October 2013, Land
   Burgenland and Others v Commission
   ([374]C-214/12 P, C-215/12 P and C-223/12 P, [375]EU:C:2013:682,
   paragraph [376]93 and the case-law cited). Similarly, Commission Notice
   on the notion of State aid as referred to in Article 107(1) of the
   Treaty on the Functioning of the European Union ([377]OJ 2016 C 262,
   p. 1), point 97 et seq.

   ( [378]75 ) See, to that effect, judgments of 13 May 2020, Volotea v
   Commission ([379]T-607/17, [380]EU:T:2020:180, paragraph [381]136) and
   of 13 May 2020, easyJet Airline v Commission ([382]T-8/18,
   [383]EU:T:2020:182, paragraph [384]203). To the same effect, judgment
   of 5 August 2003, P & O European Ferries (Vizcaya) and Diputación Foral
   de Vizcaya v Commission ([385]T-116/01 and T-118/01,
   [386]EU:T:2003:217, paragraph [387]121).

   ( [388]76 ) Which is what, to my mind, the General Court in its
   judgment of 28 January 1999, BAI v Commission ([389]T-14/96,
   [390]EU:T:1999:12, paragraphs [391]73, [392]76 and [393]79) was trying
   to establish.

   ( [394]77 ) Judgments of 13 May 2020, Volotea v Commission
   ([395]T-607/17, [396]EU:T:2020:180, paragraph [397]139) and of 13 May
   2020, easyJet Airline v Commission ([398]T-8/18, [399]EU:T:2020:182,
   paragraph [400]206).

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