(Action for annulment– Air transport– Regulation (EC) No1008/2008

ORDER OF THE GENERAL COURT (Third Chamber)

12July 2021(*)

(Action for annulment– Air transport– Regulation (EC) No1008/2008– Rules on the distribution of air traffic between Schiphol and Lelystad Airports– Priority for the allocation of slots to Lelystad Airport– Regulatory act entailing implementing measures– Not individually concerned– Inadmissibility)

In Case T‑866/19,

Ryanair DAC, established in Swords (Ireland),

Laudamotion GmbH, established in Schwechat (Austria),

represented by E.Vahida and I.‑G.Metaxas-Maranghidis, lawyers,

applicants,

v

European Commission, represented by V.Di Bucci and W.Mölls, acting as Agents,

defendant,

APPLICATION under Article263 TFEU seeking the annulment of Commission Implementing Decision (EU) 2019/1585 of 24September 2019 on the establishment of traffic distribution rules pursuant to Article19 of Regulation (EC) No1008/2008 of the European Parliament and of the Council for the airports Amsterdam Schiphol and Amsterdam Lelystad (OJ 2019 L246, p.24),

THE GENERAL COURT (Third Chamber),

composed of A.M.Collins, President, V.Kreuschitz and G.DeBaere (Rapporteur), Judges,

Registrar: E.Coulon,

makes the following

Order

Background to the dispute

1The applicants, Ryanair DAC and Laudamotion GmbH, are European air carriers. They are subsidiaries of Ryanair Holdings plc.

2Schiphol Airport is an international airport located nine kilometres from Amsterdam (Netherlands). Lelystad Airport (Netherlands) is located 56 kilometres from Amsterdam and is not currently used for regular commercial flights.

3Ryanair operates two routes at Schiphol Airport while Laudamotion does not operate any flights there.

4In accordance with Article19(3) of Regulation (EC) No1008/2008 of the European Parliament and of the Council of 24September 2008 on common rules for the operation of air services in the Community (OJ 2008 L293, p.3), the Netherlands authorities, by email of 25March 2019, informed the European Commission of their intention to establish traffic distribution rules for Schiphol and Lelystad Airports by means of a ministerial decree and an implementing order of the Minister for Infrastructure and Water (‘the traffic distribution rules’). The notification contained the draft decrees and the implementing order of that minister. An amended version of those documents was sent to the Commission by the Netherlands authorities on 29March 2019, together with explanatory notes.

5The Commission published a summary of the traffic distribution rules in the Official Journal of the European Union on 12April 2019 (OJ 2019 C136, p.26) and invited interested parties to submit their comments. Ryanair submitted comments on 29April 2019.

6By letters of 3 and 11July 2019, the Netherlands authorities submitted an amendment to the notification and provided further factual information.

7On 24September 2019, the Commission adopted Implementing Decision (EU) 2019/1585 on the establishment of traffic distribution rules pursuant to Article19 of Regulation No1008/2008 for the airports Amsterdam Schiphol and Amsterdam Lelystad (OJ 2019 L246, p.24; ‘the contested decision’), by which it approved the traffic distribution rules, as amended.

8First, the Commission described the traffic distribution rules laid down in the draft ministerial decree and in the draft implementing order of the Minister for Infrastructure and Water.

9According to those rules, Lelystad Airport will be designated as a coordinated airport within the meaning of Council Regulation (EEC) No95/93 of 18January 1993 on common rules for the allocation of slots at Community airports (OJ 1993 L14, p.1), as soon as the ministerial decree enters into force.

10Without prejudice to Regulation No95/93, an air carrier will have priority to obtain slots at Lelystad Airport to take off or land in so far as that air carrier has transferred historical slots at Schiphol Airport to another air carrier or the coordinator, or commits to use henceforth historical slots at Schiphol Airport to operate transfer flights (‘the priority of traffic distribution rules’).

11That priority will apply only to slots at Schiphol Airport that were used in the previous corresponding scheduling period or in at least three of the four previous corresponding scheduling periods to conduct point-to-point flights. The criteria defining transfer flights and point-to-point flights are laid down in the draft implementing decree and the related destinations are listed in Annex1 and Annex2 to that draft decree respectively.

12The air carrier relying on the priority of traffic distribution rules must inform the Minister for Infrastructure and Water, the coordinator and, where appropriate, the beneficiary air carrier, indicating the slots concerned at Schiphol Airport.

13The priority of traffic distribution rules applies to two tranches of slots at Lelystad Airport, that is to say, up to 10000 slots and 10001 to 25000 slots, and the contested decision concerns only the first tranche of slots.

14Second, the Commission set out the objective of the traffic distribution rules, namely the creation of a European network of routes from Schiphol Airport serving continental and intercontinental destinations for the purposes of maintaining and developing that European hub. It observed that that objective was part of the limit of 500000 movements per year at Schiphol Airport until the end of 2020 established in the ‘Alders Agreement’, concluded in 2008 between the aviation industry, the public authorities and residents and seeking to reach a balance between the growth of the aviation sector and viability and environmental safety and sustainability. Since the 500000 movement limit per year had already been reached at Schiphol Airport in 2018, the Netherlands authorities took the view that the capacity available to transfer traffic could be increased only by distributing traffic between that airport and Lelystad Airport, the latter having to receive ‘point-to-point’ flights from Schiphol Airport.

15The Commission also explained that the traffic distribution rules were part of a more general development plan for Lelystad Airport providing for a maximum capacity of 45000 yearly aircraft movements, which had to be achieved in two stages.

16Third, having heard the comments submitted by the interested parties, the Commission assessed the compatibility of the traffic distribution rules laid down by the Netherlands authorities with Article19 of Regulation No1008/2008.

17First of all, the Commission found that the Schiphol and Lelystad Airports met the eligibility requirements for traffic distribution laid down in Article19(2) of Regulation No1008/2008.

18Next, it found that the criteria established in the traffic distribution rules were proportionate, objective and transparent and that those rules did not discriminate between destinations within the European Union nor did they discriminate on the basis of nationality or identity of the air carrier.

19Lastly, the Commission noted that, since Lelystad Airport was going to be designated as a coordinated airport within the meaning of Regulation No95/93, the allocation of slots at that airport had to comply with that regulation. The Commission found that the priority of traffic distribution rules only set in once the priority criteria of Regulation No95/93 had been applied and was limited to the slots previously covered by the rules, that is to say, 10000 slots, so that that adjustment of priority, which did not go beyond what was necessary to achieve the objective of the traffic distribution rules, was compatible with Regulation No95/93.

Procedure and forms of order sought

20The applicants brought the present action by an application lodged at the Court Registry on 19December 2019.

21By document lodged at the Court Registry on 20March 2020, the Kingdom of the Netherlands sought leave to intervene in the present case in support of the forms of order sought by the Commission.

22By separate document lodged at the Court Registry on 24March 2020, the Commission raised a plea of inadmissibility under Article130(1) of the Rules of Procedure of the General Court. The applicants submitted their observations on that plea on 10June 2020.

23By way of a measure of organisation of procedure within the meaning of Article89 of the Rules of Procedure, on 15December 2020, the Court invited the applicants and the Commission to reply in writing to four questions put by the Court. The parties complied with that request within the prescribed time limit.

24The applicants claim that the Court should:

–declare the action admissible;

–annul the contested decision;

–order the Commission to pay the costs.

25The Commission contends that the Court should:

–dismiss the action as inadmissible;

–order the applicants to pay the costs.

The plea of inadmissibility

26Under Article130(1) and (7) of the Rules of Procedure, the Court may, if the defendant so requests, rule on the question of admissibility without considering the merits of the case. In the present case, as the Commission has applied for a decision on inadmissibility, the Court, finding that it has sufficient information from the documents in the case file, has decided to rule on that application without taking further steps in the proceedings.

27Under the fourth paragraph of Article263 TFEU, any natural or legal person may, under the conditions laid down in the first and second paragraphs of that article, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.

28It must be stated that the applicants are not addressees of the contested decision, which is addressed to the Kingdom of the Netherlands.

29The fourth paragraph of Article263 TFEU nevertheless provides for two situations in which natural or legal persons are accorded standing to institute proceedings against an act not addressed to them, as is the case here. First, such proceedings may be instituted if the act is of direct and individual concern to those persons. Second, they may bring proceedings against a regulatory act not entailing implementing measures if that act is of direct concern to them (judgments of 19December 2013, Telefónica v Commission, C‑274/12P, EU:C:2013:852, paragraph19; of 28October 2020, Associazione GranoSalus v Commission, C‑313/19P, not published, EU:C:2020:869, paragraph28; and of 3December 2020, Changmao Biochemical Engineering v Distillerie Bonollo and Others, C‑461/18P, EU:C:2020:979, paragraph54).

30In the application, the applicants claim that their situation corresponds to the second situation set out in paragraph29 above.

31In support of its plea of inadmissibility, the Commission submits, in contrast with the applicants, that the contested decision is a regulatory act which entails implementing measures, with the result that the last requirement laid down in the third limb of the fourth paragraph of Article263 TFEU is not satisfied.

32In addition, the Commission submits, as it confirmed in response to the questions put by the Court, that the applicants are not individually concerned by the contested decision, with the result that their situation likewise does not correspond to the first situation set out in paragraph29 above resulting from the second limb of the fourth paragraph of Article263 TFEU. Therefore, according to the Commission, the applicants do not have standing to bring proceedings.

The characterisation of the contested decision as a regulatory act which does not entail implementing measures

33As a preliminary point, it should be recalled that the concept of ‘regulatory act’, within the meaning of the third limb of the fourth paragraph of Article263 TFEU, encompasses acts of general application, excluding legislative acts (judgments of 3October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11P, EU:C:2013:625, paragraphs58 to 61, and of 6November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16P to C‑624/16P, EU:C:2018:873, paragraph23).

34As the applicants point out, the contested decision is not a legislative act, since it was not adopted in accordance with the ordinary legislative procedure described in Article294 TFEU or in accordance with a special legislative procedure, as defined in Article289(2) TFEU. Furthermore, neither the applicants nor the Commission dispute that the contested decision constitutes an act of general application, which applies to objectively determined situations and produces legal effects with respect to categories of persons envisaged in a general and abstract manner (see, to that effect, judgments of 6November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16P to C‑624/16P, EU:C:2018:873, paragraph29, and of 3September 2020, Mellifera v Commission, C‑784/18P, not published, EU:C:2020:630, paragraph66).

35Therefore, it must be held that the contested decision is a regulatory act within the meaning of the third limb of the fourth paragraph of Article263 TFEU.

36Next, it is necessary to examine whether or not the contested decision entails implementing measures, which is what is in dispute.

37The Commission claims that the allocation of slots at coordinated airports, such as Lelystad Airport, is entrusted exclusively to the coordinator. The traffic distribution rules approved by the contested decision, in the same way as the rules on the allocation of slots laid down in Regulation No95/93, are the subject of decisions by the coordinator. In particular, the application of the priority of traffic distribution rules requires a case-by-case assessment by the coordinator and its result depends on several factors evaluated by that coordinator. Decisions of the coordinator may be challenged before the competent national courts.

38The applicants dispute the Commission’s arguments. They submit that the contested decision affects their legal position in the absence of any implementing measure, since it approves the priority of traffic distribution rules, the benefit of which they cannot claim since they are excluded ab initio from its scope. That priority gives certain air carriers the benefit of a ‘super-priority’ which prevails over the priority for new entrants provided for in Article10(6) of Regulation No95/93, to which the applicants could lay claim. They submit that the considerations set out by the Court of Justice in paragraphs65 and 66 of the judgment of 6November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci (C‑622/16P to C‑624/16P, EU:C:2018:873), are applicable to their situation. It would be artificial to require the applicants to make priority requests for slots at Lelystad Airport and then to challenge before the national courts the foreseeable refusal of the national authorities to grant them. In any event, according to the applicants, they have no chance of obtaining slots at Lelystad Airport in the light of the very low supply of slots at that coordinated airport and the high demand from ‘super-priority’ air carriers.

39It should be noted that the expression ‘does not entail implementing measures’ within the meaning of the third limb of the fourth paragraph of Article263 TFEU must be interpreted in the light of the objective of that provision, which, as is apparent from its drafting history, is to ensure that individuals do not have to break the law in order to have access to a court. Where a regulatory act directly affects the legal situation of natural or legal persons without requiring implementing measures, those persons could be denied effective judicial protection if they did not have a direct legal remedy before the European Union judicature for the purpose of challenging the legality of the regulatory act. In the absence of implementing measures, natural or legal persons, although directly concerned by the act in question, would be able to obtain a judicial review of that act only after having infringed its provisions, by pleading that those provisions are unlawful in proceedings initiated against them before the national courts (judgments of 19December 2013, Telefónica v Commission, C‑274/12P, EU:C:2013:852, paragraph27; of 6November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16P to C‑624/16P, EU:C:2018:873, paragraph58; and of 28October 2020, Associazione GranoSalus v Commission, C‑313/19P, not published, EU:C:2020:869, paragraph31).

40By contrast, where a regulatory act entails implementing measures, judicial review of compliance with the EU legal order is ensured irrespective of whether those measures were adopted by the European Union or the Member States. Natural or legal persons who are unable, because of the conditions governing admissibility laid down in the fourth paragraph of Article263 TFEU, to challenge a regulatory act of the European Union directly before the European Union judicature are protected against the application to them of such an act by the ability to challenge the implementing measures which the act entails (judgments of 19December 2013, Telefónica v Commission, C‑274/12P, EU:C:2013:852, paragraph28; of 6November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16P to C‑624/16P, EU:C:2018:873, paragraph59; and of 28October 2020, Associazione GranoSalus v Commission, C‑313/19P, not published, EU:C:2020:869, paragraph32).

41Where responsibility for the implementation of such acts lies with the institutions, bodies, offices or agencies of the European Union, natural or legal persons are entitled to bring a direct action before the European Union judicature against the implementing acts under the conditions stated in the fourth paragraph of Article263 TFEU, and to plead in support of that action, pursuant to Article277 TFEU, the illegality of the basic act at issue. Where that implementation is a matter for the Member States, those persons may plead the invalidity of the basic act at issue before the national courts and tribunals and cause the latter to request a preliminary ruling from the Court of Justice, pursuant to Article267 TFEU (judgments of 19December 2013, Telefónica v Commission, C‑274/12P, EU:C:2013:852, paragraph29; of 6November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16P to C‑624/16P, EU:C:2018:873, paragraph60; and of 28October 2020, Associazione GranoSalus v Commission, C‑313/19P, not published, EU:C:2020:869, paragraph33).

42In order to assess whether a regulatory act entails implementing measures, it should be assessed by reference to the position of the person pleading the right to bring proceedings under the third limb of the fourth paragraph of Article263 TFEU. It is therefore irrelevant whether the act in question entails implementing measures with regard to other persons. Furthermore, in the context of that assessment, reference should be made exclusively to the subject matter of the action (judgments of 6November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16P to C‑624/16P, EU:C:2018:873, paragraph61, and of 28October 2020, Associazione GranoSalus v Commission, C‑313/19P, not published, EU:C:2020:869, paragraph38).

43In the present case, the applicants challenge the contested decision, by which the Commission approved the traffic distribution rules and, in particular, the priority provided for therein. Before determining whether the contested decision, in so far as it approves the priority of traffic distribution rules, entails implementing measures with regard to the applicants, it is appropriate to set out the rules applicable to Lelystad Airport.

The relationship between the rules applicable to Lelystad Airport

–The rules for the allocation of slots laid down in Regulation No95/93

44In paragraphs95 and 96 of the contested decision, the Commission observed that, due to the lack of capacity at Lelystad Airport when it opens to commercial flights, that airport will be designated as a coordinated airport within the meaning of Regulation No95/93, so that the slot allocation procedure there will have to comply with that regulation.

45Under Article2(g) of Regulation No95/93, as amended by Regulation (EC) No545/2009 of the European Parliament and of the Council of 18June 2009 (OJ 2009 L167, p.24), which was in force at the time of the adoption of the contested decision, a coordinated airport is defined as ‘any airport where, in order to land or take off, it is necessary for an air carrier or any other aircraft operator to have been allocated a slot by a coordinator…’.

46According to Article2(a) of Regulation No95/93, a slot is defined as the permission given by a coordinator in accordance with that regulation to use the full range of airport infrastructure necessary to operate an air service at a coordinated airport on a specific date and time for the purpose of landing or take-off as allocated by a coordinator in accordance with that regulation.

47Under Article4(1) of Regulation No95/93, the coordinator is a qualified natural or legal person, appointed by the Member State responsible for the coordinated airport. Under Article4(5) of that regulation, the coordinator is the only person responsible for the allocation of slots.

48According to Article7(1) of Regulation No95/93, air carriers operating or intending to operate services at a coordinated airport are to provide the coordinator with all relevant information requested by him or her.

49Article8 of Regulation No95/93, entitled ‘Process of slot allocation’, provides, in paragraph1, that the series of slots are allocated from the slot pool to applicant carriers as permissions to use the airport infrastructure for the purpose of landing or take-off for the scheduling period for which they are requested.

50According to Article8(6) of Regulation No95/93, where a request for a slot cannot be accommodated, the coordinator is to communicate the reasons for that request to the requesting air carrier.

51Under Article10(6) of Regulation No95/93, without prejudice, in particular, to Article8(1) of Council Regulation (EEC) No2408/92 of 23July 1992 on access for Community air carriers to intra-Community air routes (OJ 1992 L240, p.8) (now Article19(2) of Regulation No1008/2008), which provides for the possibility for a Member State to enact air-traffic distribution rules, slots placed in the pool are to be distributed among applicant air carriers and 50% of those slots must first be allocated to new entrants as defined in Regulation No95/93 (‘the new entrant priority’).

52It follows that, at a coordinated airport such as Lelystad Airport, the coordinator allocates slots to air carriers, in the form of permission to use the airport infrastructure for a given scheduling period, after assessing their requests and taking into account, in particular, the priority status of new entrants.

–The traffic distribution rules

53It must be borne in mind that the Kingdom of the Netherlands notified the Commission of the traffic distribution rules on the basis of Article19 of Regulation No1008/2008. Article19(2) of that regulation states that a Member State may govern the distribution of air traffic between airports meeting certain conditions, such as the Schiphol and Lelystad Airports. Under Article19(3) of that regulation, the Commission is to decide whether the traffic distribution rules notified to it may be applied. They are not applied before publication of the Commission’s approval.

54As is apparent from paragraph10 above, the traffic distribution rules approved by the Commission establish a priority rule. The priority of traffic distribution rules provides that air carriers which transfer historical slots at Schiphol Airport to another carrier or coordinator or which undertake to use those slots to operate transfer flights are given priority to obtain slots at Lelystad Airport.

55An air carrier wishing to benefit from the priority of the traffic distribution rules must inform, inter alia, the coordinator (see paragraph12 above) during the slot allocation procedure governed by Regulation No95/93, as indicated by the parties in their replies to the questions put by the Court.

–The relationship between those rules

56It should be noted that the priority of traffic distribution rules is without prejudice to Regulation No95/93. As regards new entrant priority, it is apparent from paragraph51 above that that priority, for its part, is without prejudice to the traffic distribution rules which the Member State may enact.

57As the Commission observed in paragraphs96 to 99 of the contested decision and as is apparent from the explanatory note to the draft ministerial decree, it must be inferred, first, that the priority of traffic distribution rules will set in only after the rules on the allocation of slots laid down in Regulation No95/93 have been applied. That priority will therefore apply only to competing requests following the application of the criteria laid down in that regulation. Second, the new entrant priority may be adapted in the context of the distribution of traffic envisaged by the Netherlands Government in order to take account of the priority of traffic distribution rules, which therefore constitutes an additional priority to that of new entrants.

The existence of implementing measures

58It follows from the explanations set out in paragraphs44 to 57 above that, since Lelystad Airport will be designated as a coordinated airport, the coordinator will necessarily have to decide on slot requests from air carriers. To that end, the coordinator will have to assess the competing claims of those carriers for a given scheduling period, taking into account the new entrant priority and the priority of the traffic distribution rules on which they are relying.

59The priority of traffic distribution rules approved by the contested decision is therefore a criterion to be taken into account by the coordinator in his or her assessment. Therefore, the coordinator’s decisions constitute the implementing measures of the contested decision. As the Commission has rightly stated, the priority of traffic distribution rules will take the form, together with the rules for the allocation of slots laid down in Regulation No95/93, of the coordinator’s decision to accept or reject slot requests made by air carriers, including those of the applicants.

60In so far as the applicants submit that the coordinator can in no way change the purely legal redistribution of the operators’ rights established by the contested decision, it should be noted that that line of argument relates to the possible direct concern to the applicants. The condition relating to the absence of implementing measures is distinct from that of direct concern. The question whether or not the applicable legislation leaves a discretion to the coordinator is therefore irrelevant for the purpose of determining whether the contested decision entails implementing measures (see, to that effect, order of 14July 2015, Forgital Italy v Council, C‑84/14P, not published, EU:C:2015:517, paragraphs43 and 44, and judgment of 12September 2013, Valeo Vision v Commission, T‑457/11, not published, EU:T:2013:414, paragraph74).

61It should also be noted that decisions of the coordinator rejecting slot requests from air carriers must be communicated to them (see paragraph50 above). As the Commission observes, without being challenged in that regard by the applicants, such decisions may be the subject of an action before the competent Netherlands courts.

62Thus, in the event that the coordinator rejects the applicants’ slot requests, in particular on the ground that the applicants do not benefit from the priority of the traffic distribution rules unlike other air carriers, the applicants could still challenge the rejection decision communicated to them by the coordinator by invoking the invalidity of the contested decision approving the priority of the traffic distribution rules in order to prompt the Netherlands courts to make a reference to the Court for a preliminary ruling on the validity of the latter.

63It must therefore be held that the contested decision, approving the traffic distribution rules, entails implementing measures with regard to the applicants.

64The other arguments put forward by the applicants cannot call that conclusion into question.

65The applicants claim, in essence, that the reasoning set out in paragraphs65 and 66 of the judgment of 6November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci (C‑622/16P to C‑624/16P, EU:C:2018:873), is applicable by analogy to their situation, in so far as it would be artificial to require them to request slots from the coordinator even though they clearly did not fulfil the conditions for benefiting from the priority of traffic distribution rules, in order then to challenge the probable rejection of their request before the national courts.

66In this regard, it should be recalled that, in paragraphs64 to 66 of the judgment of 6November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci (C‑622/16P to C‑624/16P, EU:C:2018:873), the Court of Justice held, in essence, that, since the competitors of beneficiaries of a national measure which had been found not to constitute State aid within the meaning of Article107(1) TFEU did not fulfil the conditions laid down by the national measure at issue in order to be eligible for the benefit thereof, it would have been artificial to require them to ask the national authorities to grant them that benefit and to challenge the act refusing to grant their request before a national court in order to cause that national court to make a reference to the Court on the validity of the Commission’s decision concerning that measure.

67The situation of those competitors is different from that of the beneficiaries of a State aid scheme, in respect of which a decision declaring such a scheme incompatible with the internal market or declaring that scheme compatible with that market subject to compliance with commitments entered into by the Member State concerned entails implementing measures. The latter may, subject to compliance with the conditions of eligibility laid down in national law, request the national authorities to grant them the aid as it would have been granted in the case of an unconditional decision declaring that scheme compatible with the internal market, and then challenge any refusal by those authorities before the national courts. By contrast, competitors of beneficiaries of a national measure which has been found to be compatible with Article107(1) TFEU, who are not eligible for that aid, cannot do the same without that step being regarded as artificial.

68As regards Ryanair, it should be noted at the outset that it could benefit from the priority of traffic distribution rules through the conversion or transfer of the historic slot meeting the conditions laid down in the implementing order (see paragraph11 above) which it has at Schiphol Airport. In those circumstances, Ryanair cannot be regarded, unlike the appellants in the judgment of 6November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci (C‑622/16P to C‑624/16P, EU:C:2018:873), as not being eligible for the national measure approved by the Commission and cannot therefore rely on that judgment.

69As regards Laudamotion, it is true that it does not fulfil the conditions for benefiting from the priority of traffic distribution rules since it does not have historic slots at Schiphol Airport to convert or transfer to another carrier or the coordinator. Laudamotion does not therefore appear eligible for the national measure approved by the Commission in the contested decision.

70However, contrary to what the applicants claim, that fact alone does not justify the application of the judgment of 6November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci (C‑622/16P to C‑624/16P, EU:C:2018:873), by analogy to the present case.

71First, it must be recalled that the position of the person pleading the right to bring proceedings must be taken into account in determining whether the contested EU act entails implementing measures or not (see, to that effect, judgment of 6November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16P to C‑624/16P, EU:C:2018:873, paragraph61, and of 28October 2020, Associazione GranoSalus v Commission, C‑313/19P, not published, EU:C:2020:869, paragraphs38 and 39).

72In the light of the implementing measures which the contested decision entails, namely the coordinator’s decisions after assessing the slot requests of the various carriers, Laudamotion’s position cannot be distinguished from that of beneficiaries of the priority of traffic distribution rules.

73As is apparent in particular from paragraphs58 and 59 above, the request for priority status in the light of the traffic distribution rules does not constitute a separate request from the slot request, but that priority is one of the criteria to be taken into account by the coordinator in its assessment in the context of the slot allocation process. Thus, in order to claim slots at Lelystad Airport, Laudamotion will be required, like any other carrier, to submit a slot request by informing the coordinator of all relevant information and the coordinator will have to decide on that request.

74Second, the applicants have not shown that a slot request at Lelystad Airport submitted by Laudamotion, although not given the priority of traffic distribution rules, would be automatically defeated and would therefore be only artificial in nature.

75In this respect, it should be recalled that it would be artificial or excessive to require an operator to request an implementing measure merely in order to be able to challenge that measure before the national courts (see, to that effect, judgment of 6November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16P to C‑624/16P, EU:C:2018:873, paragraph66). As Advocate General Wathelet stated in point75 of his Opinion in Scuola Elementare Maria Montessori v Commission and Commission v Scuola Elementare Maria Montessori and Commission v Ferracci (C‑622/16P to C‑624/16P, EU:C:2018:229), it is necessary to avoid the applicants being ‘obliged to adopt behaviour which must, with absolute certainty, fail in order to have access to a court’.

76It is true that, as a result of the application of the traffic distribution rules approved by the contested decision, the priority linked to Laudamotion’s new entrant status may be overridden by the priority of the traffic distribution rules benefiting another air carrier. As is apparent, in essence, from paragraph57 above and from the explanatory note to the draft ministerial decree, in the event of equality between air carriers benefiting from new entrant priority, additional priority will be given to carriers benefiting from the priority of traffic distribution rules.

77However, as the Commission rightly points out, the allocation of slots by the coordinator depends on the latter’s assessment of the competing requests of carriers (see paragraphs58 to 62 above). That assessment is based on several factors, such as the number of slots available in the pool, the number of slot requests from air carriers for the scheduling of a given international air transport association (IATA) season as well as the new entrant priority and the priority of traffic distribution rules on which those carriers rely.

78In that regard, it should be noted that Lelystad Airport will be opened to commercial aviation for the first time. That fact may influence the number of slots available in the pool and the new entrant status of the applicant air carriers, as can be inferred, in essence, from the applicants’ reply to the first question put by the Court in the context of the measure of organisation of procedure.

79It should also be noted that the traffic distribution rules in no way require the air carriers concerned to transfer their point-to-point flights from Schiphol Airport to Lelystad Airport (see paragraphs26 and 43 of the contested decision), such transfer being ‘voluntary in nature’ (see paragraph85 of the contested decision). As is apparent from the notification from the Netherlands Government, the traffic distribution rules are merely an incentive and are based on the will of market participants.

80Therefore, the applicants’ argument that, even if they requested slots from the coordinator, they would have virtually no chance of obtaining slots is not convincing. In that regard, the applicants claim that the priority status of air carriers benefiting from the priority of traffic distribution rules would result in them being awarded all the slots available or, in any event, the most attractive slots, whereas it is not economically viable or advantageous for the applicants not to obtain sufficient slots at Lelystad Airport. Furthermore, carriers apply for series of slots and not for specific slots, which benefits air carriers with a super-priority to be claimed over a whole series of slots.

81The applicants cannot rely on the unsubstantiated premiss that air carriers eligible for the priority of traffic distribution rules will necessarily transfer their flights to Lelystad Airport in order to benefit from that priority, thereby creating a disproportionate demand for ‘super-priority’ carriers in the face of a limited supply of slots. The examples provided by the applicant to show that airlines could claim the priority of traffic distribution rules, possibly coupled with new entrant priority, are based solely on hypothetical behaviour of those market participants. Moreover, the likelihood or opportunity for the applicants to obtain several slots during the allocation process is not relevant for the purposes of assessing the existence of implementing measures.

82Consequently, it cannot be concluded that Laudamotion’s slot request will automatically result in a refusal and that it would be artificial, within the meaning of the judgment of 6November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci (C‑622/16P to C‑624/16P, EU:C:2018:873), to require it to submit a slot request to the coordinator.

83It follows from all of the foregoing that the application by analogy of the judgment of 6November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci (C‑622/16P to C‑624/16P, EU:C:2018:873), cannot be accepted and that the contested decision entails implementing measures with regard to the applicants (see paragraph63 above). Therefore, the condition relating to the classification of the contested measure as a ‘regulatory act not entailing implementing measures’ within the meaning of the third limb of the fourth paragraph of Article263 TFEU is not satisfied.

84Without it being necessary to rule on the condition that the applicants must be directly concerned, it must be held that their action is not admissible under the second situation envisaged in paragraph29 above.

Individual concern to the applicants

85The Commission contends that the action is also inadmissible in respect of the first situation referred to in paragraph29 above, that is to say, where the contested measure is of direct and individual concern to an applicant.

86As they confirmed in their reply to the Court’s questions, the applicants concede that they are not individually concerned by the contested decision.

87According to the case-law, persons other than those to whom a decision is addressed may claim to be individually concerned by that measure, within the meaning of the fourth paragraph of Article263 TFEU, only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed (judgments of 15July 1963, Plaumann v Commission, 25/62, EU:C:1963:17, p.107; of 19December 2013, Telefónica v Commission, C‑274/12P, EU:C:2013:852, paragraph46; and of 13March 2018, European Union Copper Task Force v Commission, C‑384/16P, EU:C:2018:176, paragraph93).

88The possibility of determining more or less precisely the number, or even the identity, of the persons to whom a measure applies by no means implies that it must be regarded as being of individual concern to them as long as that measure is applied by virtue of an objective legal or factual situation defined by it (see, to that effect, judgment of 19December 2013, Telefónica v Commission, C‑274/12P, EU:C:2013:852, paragraph47, and of 16May 2019, Pebagua v Commission, C‑204/18P, not published, EU:C:2019:425, paragraph36).

89In the present case, the contested decision approves the air-traffic distribution rules, including the priority which they lay down, in so far as they comply with Article19 of Regulation No1008/2008. It must be observed that those rules are formulated in general terms and are likely to apply to the applicants in their objective capacity as air carriers in the same way as to all other air carriers.

90It follows that the applicants are not individually concerned by the contested decision. Therefore, without it being necessary to rule on the condition that the applicants must be directly concerned, it must be held that their action is inadmissible on the basis of the second limb of the fourth paragraph of Article263 TFEU.

Conclusion

91It follows from all of the foregoing that the applicants do not have standing to bring proceedings. Consequently, without there being any need to rule on the alleged loss of interest in bringing proceedings relied on by the Commission in its response to the measure of organisation of procedure, the action must be dismissed as inadmissible.

92In accordance with Article142(2) of the Rules of Procedure, an intervention is ancillary to the main proceedings and becomes devoid of purpose when the application is declared inadmissible. In those circumstances, there is no need to rule on the application for leave to intervene submitted by the Kingdom of the Netherlands.

Costs

93Under Article134(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. Since the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

94Furthermore, pursuant to Article144(10) of the Rules of Procedure, the Kingdom of the Netherlands must bear its own costs relating to the application to intervene.

On those grounds,

THE GENERAL COURT (Third Chamber)

hereby orders:

1.The action is dismissed.

2.There is no need to rule on the application for leave to intervene submitted by the Kingdom of the Netherlands.

3.Ryanair DAC and Laudamotion GmbH shall bear their own costs and pay the costs incurred by the European Commission.

4.The Kingdom of the Netherlands shall bear its own costs relating to the application for leave to intervene.

Luxembourg, 12July 2021.

*Language of the case: English.