The Passing on Defence Aviated Into State Aid Law: Annotation on the Judgments of the General Court of 5 February 2015 in Case T-437/12 Aer Lingus v Commission and Case T-500/12 Ryanair v Commission

The two annotated judgments concern the aftermath of a differentiated taxation on travelling, which was implemented in breach of the free movement provisions in the Treaties. Airlines (Aer Lingus and Ryanair) who were identified as beneficiaries of the advantage arising from being subject to the low level of taxation, contested the Commission’s calculation of the amount to be recovered. The General Court found for the applicants and stated that the Commission should limit itself to ordering recovery of the advantage actually retained by the airlines, taking into account the competitive situation and the possibility that the advantage could have been passed on to passengers through lower ticket prices. Even if the Commission’s approach in the cases under scrutiny could be justified, the highly complicated economic analysis prescribed by the General Court is standard in other areas of EU law, making it appealing from a perspective of coherence in the EU legal system.