The financing and construction of transport infrastructure has often been considered in the past to fall outside the ambit of State aid rules, on the basis that it constituted a public interest task and not an economic activity. The Commission’s 1994 Aviation guidelines for example reflected this view by stating that “the construction or enlargement of infrastructures projects (such as airports, motorways, bridges, etc.) represents a general measure of economic policy which cannot be controlled by the Commission under the Treaty rules on State aid”.
This reasoning was, however, invalidated by the General Court in its Aéroports de Paris judgment of 12 December 2000 (T-128/98, confirmed on appeal by the Court in case C-82/01 P), which clarified that the operation of an airport constitutes an economic activity, although the case concerned Article 102 TFEU and rules on predatory pricing. Since then, the Commission has thus followed the Court’s approach, but has recognised that due to the legitimate expectation that may have been created, the financing of infrastructure granted before the date of the judgment in Aéroports de Paris should not lead to the recovery of the possible State aid involved.