17SEP AIREUROPA

20DEC

BAS

The following report provides a professional legal analysis and a custom balancing act for each judicial review opportunity identified regarding the acquisition of Air Europa by International Airlines Group (IAG). For the purposes of this report, it is assumed that Spanish administrative and competition law principles are substantially similar to the United Kingdom and European Union legal frameworks described in the provided documentation.

Report on Judicial Review Opportunities and Balancing Acts: IAG and Air Europa Acquisition

Opportunity 1: Judicial Review of the European Commission Merger Decision

This opportunity involves an action for annulment against the European Commission decision regarding the compatibility of the IAG and Air Europa merger with the internal market. Standing to bring such an action is generally available to the addressees of the decision, but third parties, such as competing airlines or consumer interest groups, may also have standing if they can demonstrate that the decision is of direct and individual concern to them. Participation in the initial administrative investigation is a critical factor in establishing this standing.

The Custom Balancing Act:

The court must balance the pursuit of economic efficiency goals against potential public interest (WPI) harms. Economic efficiency goals, such as lower prices and higher quality through synergy, must be weighed against the substantial lessening of competition (SLC). In the aviation sector, this involves weighing Stiglerian market power, where a merged entity restricts its own output to raise prices, against the public interest in maintaining connectivity and national champions. A significant part of the balancing act involves evaluating whether the efficiency gains are passed on to consumers or if the merger creates a Bainian market power that allows the entity to exclude rivals by raising their costs. The court’s role is not to replace the Commission’s discretion but to ensure no manifest error of appraisal occurred in this weighting.

Opportunity 2: Judicial Review of State Aid under the COVID-19 Temporary Framework

This opportunity focuses on challenging the legality of the state aid granted to Air Europa during the pandemic. The claim would argue that the Spanish government and the European Commission acted with disregard for the anti-competitive distortions caused by the aid. This may involve tracing the legislative history of the Temporary Framework to show that its intended spirit required stricter verification of the company’s pre-crisis financial health.

The Custom Balancing Act:

The balancing act here lies between the public interest goal of financial stability and the fundamental principle of free competition. The court must weigh the necessity of preventing the collapse of a major carrier, which could destabilize the national economy, against the harm of insulating an inefficient firm from market pressures. Under the principle of proportionality, the state measure must be limited to the minimum action necessary to ensure the protection of the legitimate interest without creating an unjustified obstacle to trade. The court evaluates if the aid was a necessary evil for development or a protectionist measure that deterred pro-competitive cross-border entries.

Opportunity 3: Judicial Review of Regulatory Inaction (CNMC or CMA)

This opportunity identifies an enforcement gap where regulators may have failed in their statutory duty to investigate anti-competitive practices or mergers that result in a substantial lessening of competition. Claimants can demand that the regulator fulfill its duty to protect the public from anti-competitive conduct.

The Custom Balancing Act:

This requires balancing administrative discretion against the rule of law and the protection of consumer welfare. Regulators often have a wide margin of discretion in prioritizing investigations, but this must be balanced against the “consumer welfare prescription” of antitrust law. The court must assess whether the regulator’s failure to act was irrational or if it allowed the illegitimate acquisition of market power to the detriment of an efficient allocation of resources. In the context of “Bainian” market power, the regulator’s inaction is weighed against the dynamic costs of allowing a dominant player to stifle innovation and exclude competitors.

Opportunity 4: Challenge Based on the Essential Elements (ESSE) Ground

This involves challenging decisions based on delegated or implementing acts that allegedly touch upon the essential elements of a legislative act. If the decision-making body, such as the Commission or a national ministry, made “political choices” reserved for the legislature, the act may be quashed as illegal.

The Custom Balancing Act:

The court must balance the need for administrative efficiency through delegated powers against the requirement for democratic legitimacy. Essential elements, which require the weighing of conflicting interests and significant political choices, cannot be delegated to non-elected bodies. In airline mergers, decisions involving national security, public access to media, or essential infrastructure are often considered “high politics” where the power of self-adoption by an agency is restricted. The court must apply a strict proportionality test to determine if the measures adopted by the regulator were too intense for the scope of the delegated authority.

Opportunity 5: Procedural Failures and Transparency in Merger Reviews

This opportunity arises from the failure to conduct adequate impact assessments or to observe procedural rights, such as the right to be heard or access to the file during a merger review. It may also involve the failure of the regulator to provide a transparent and reasoned decision.

The Custom Balancing Act:

The court balances the administrative burden of transparency against the public’s right to an accountable “regulatory state”. While regulators must act quickly in prospective merger regimes, this efficiency must not override the duty to ensure that the rules are not arbitrarily changed and that all relevant material considerations are taken into account. The balancing act determines if the non-disclosure of certain information affected a party’s ability to defend its interests and if the lack of transparency resulted in a decision that does not meet the legal standard for supporting its conclusions.

Summary of Strategic Approach

Each of these judicial review opportunities requires a nuanced evaluation of how specialized legal principles, such as the social time preference rate or the distinction between Stiglerian and Bainian power, apply to the specific facts of the IAG and Air Europa deal. Success in these claims often depends on the quality of the evidence submitted during the administrative phase and the ability to demonstrate that the alleged errors or inactions directly harmed consumer welfare or the broader public interest.

ALLIES

Based on your materials regarding the Air Europa state aid case, a successful judicial review (JR) would create significant opportunities for several categories of organizations. These groups would benefit from a follow-on claim for compensation, gain positive externalities from restored market competition, or see their institutional reputation reinforced.

Here is a list of the companies, associations, and organizations that would most benefit, along with their official contact information.

### 1. Direct Competitor Airlines
These companies suffer the most immediate and quantifiable harm from distortive state aid. A successful JR establishing a Finding of Infringement (FOIG) provides the direct legal basis for them to bring follow-on damages claims for losses suffered due to the unlawful aid.

* **Ryanair DAC**: The most active litigant against COVID-19 state aid to rivals. A favorable ruling directly supports its existing litigation and future claims.
* **Address**: Ryanair DAC, Airside Business Park, Swords, County Dublin, K67 NY93, Ireland.
* **Official Contact**: For legal and formal matters, contact is typically initiated through their Legal Department. The general corporate contact is via their website contact form.
* **easyJet Airline Company Ltd.**: A major competitor on European and Spanish routes, similarly disadvantaged by the market distortion.
* **Address**: easyJet plc, Hangar 89, London Luton Airport, Luton, LU2 9PF, United Kingdom.
* **Official Contact**: The Company Secretary’s office handles formal legal correspondence. The general address is `easyJet@shareholder.cust-serv.com`.
* **Vueling Airlines SA**: A Spanish-based low-cost carrier for which the unlawful aid to a domestic rival represents a direct competitive injury.
* **Address**: Vueling Airlines SA, Edificio Norte, World Trade Center, Moll de Barcelona, s/n, 08039 Barcelona, Spain.
* **Official Contact**: General corporate contact can be made through the legal or investor relations channels listed on their corporate website.
* **Other EU Low-Cost Carriers**: Airlines like **Wizz Air** (Hungary) and **Volotea** (Spain) also compete on affected routes and would have a basis for claim.
* **Address (Wizz Air)**: Wizz Air Hungary Ltd., Building 221, Airport Business Park C, H-1185 Budapest, Hungary.
* **Official Contact**: Legal and regulatory inquiries can be directed via the contact form on their corporate website.

### 2. Industry Associations & Advocacy Groups
These organizations gain powerful advocacy tools and institutional credibility from a JR victory, which validates their longstanding positions on fair competition and state aid enforcement.

* **A4E (Airlines for Europe)**: The major EU airline association. A ruling against the aid strengthens its policy arguments against distortive subsidies and benefits its member airlines.
* **Address**: Airlines for Europe, Rue du Commerce 41, 1000 Brussels, Belgium.
* **Official Contact**: `info@a4e.eu`
* **European Travel Agents’ and Tour Operators’ Associations (ECTAA)**: Represents tourism intermediaries. Market distortion can limit route options and increase costs for their members’ customers.
* **Address**: ECTAA, Rue Dautzenberg 36, 1050 Brussels, Belgium.
* **Official Contact**: `info@ectaa.org`
* **BEUC (The European Consumer Organisation)**: Represents diffuse consumer harm, such as potentially higher fares and less choice. A JR success provides a concrete case to demand stronger enforcement for consumer benefit.
* **Address**: BEUC, Rue d’Arlon 80, 1040 Brussels, Belgium.
* **Official Contact**: `comms@beuc.eu`

### 3. Good Governance & Transparency Organizations
A JR finding of ultra vires action or irrationality by a public body is a core concern for these groups. Success restores the principle of lawful administration.

* **Access Info Europe**: A specialist NGO dedicated to the right of access to information in the EU. Your case involves alleged failures in due diligence and transparency.
* **Address**: Access Info Europe, C/ Cava de San Miguel 8, 4C, 28005 Madrid, Spain.
* **Official Contact**: `info@access-info.org`
* **The Spanish Chapter of Transparency International (Transparencia Internacional España)**: Would use a successful JR to highlight failures in Spanish public administration and the management of public funds (FASEE).
* **Address**: Transparencia Internacional España, C/ Hermosilla 124, 1º Ext. Izq., 28009 Madrid, Spain.
* **Official Contact**: `transparencia@transparencia.org.es`

### Strategic Considerations for Engagement

When contacting these potential allies, it is effective to frame the benefits in terms of their specific interests:
* For **competitors**, emphasize the “FOIG” value: a successful JR is a critical, cost-effective first step in unlocking their right to claim damages under Article 108(3) TFEU and the Damages Directive.
* For **associations and consumer groups**, highlight the “positive externality” of a clearer, more rigorously enforced state aid framework, which leads to a healthier market.
* For **governance NGOs**, focus on the “reputational restoration” of public institutions through the correction of an unlawful act and the setting of a precedent for accountability.

To proceed, I recommend identifying the 2-3 highest-priority targets from this list and drafting tailored letters of collaboration that outline the mutual strategic benefits of supporting or jointly advocating for the judicial review. Would you like assistance in drafting such outreach?

JRS

Based on my review of the materials you have provided, there is at least one significant and non-time-barred opportunity for judicial review. The analysis below addresses your questions in sequence.

### 1. Judicial Review Opportunities and Causes of Action

A judicial review (JR) of the core European Commission decision (SA.59192) has been initiated by competitors like Ryanair before the General Court of the EU (GCEU). However, for your client, **fresh and non-time-barred JR opportunities are available, primarily through challenging ongoing omissions and triggering new decisions.**

* **Overcoming Time Limits**: The standard two-month limitation period for directly challenging the 2020 grant decision is exhausted. However, time has not barred challenges to:
* **Ongoing Omissions**: The continued failure of SEPI and the European Commission to investigate the alleged illegality and initiate recovery of the aid constitutes a continuing “omission” which resets the clock. A JR can challenge this failure to act.
* **Fresh Decisions**: Your proposed strategy of writing to the public bodies is legally sound. A formal request for an investigation (as per your FOI strategy) that is **expressly refused** creates a new, challengeable decision. Similarly, a refusal to grant access to relevant documents under transparency laws is itself a standalone decision subject to JR. Seeking a decision absolutely strengthens your *locus standi* for challenging that specific refusal.

* **Causes of Action (COAs) for Judicial Review**:
* **Illegality/Ultra Vires**: The primary ground is that SEPI and the Commission acted outside their powers by granting/approving aid to an entity that was an “undertaking in difficulty” prior to 31 December 2019, in clear contravention of the Temporary Framework.
* **Irrationality (Wednesbury Unreasonableness)**: The decision to grant/approve the aid without adequate due diligence on Air Europa’s pre-pandemic solvency, despite foreseeable risks and harms to competition, could be argued to be so unreasonable that no reasonable authority would have made it.
* **Procedural Impropriety**: This includes a failure to conduct a proper investigation, failure to state adequate reasons, and a failure to consider relevant factors (i.e., the pre-existing financial status).

* **Locus Standi for a “No Particular Victim” Applicant**: Your client can establish a “sufficient interest” by framing itself as a representative of the **diffuse class of victims** (competitors, consumers, the competitive market itself). The courts have shown willingness to grant standing to public interest groups where there is a “public law wrong” but no single individual is best placed to challenge it. Your client’s formal requests for investigation and documents demonstrate a tangible interest beyond mere public concern. By seeking a decision, they become personally aggrieved by the refusal, fortifying their standing. Analogous principles from public interest litigation support this approach where the matter involves a systemic failure affecting a broad public interest.

### 2. Ultra Vires & Irrational DORCAPs Analysis

Ranked by likelihood of successful challenge:

1. **European Commission Decision SA.59192 (Approval)**: This is the most vulnerable DORCAP. The GCEU has already annulled similar Commission approvals for other airlines (KLM, Lufthansa) for failure to adequately assess the “undertaking in difficulty” criterion. This creates a direct precedent. The Commission’s failure to rigorously verify the Spanish authorities’ data, despite the high stakes and clear eligibility rules, is a strong candidate for a finding of illegality and/or manifest error of assessment.

2. **SEPI’s Due Diligence Omission (Failure to Investigate Solvency)**: SEPI’s alleged failure to detect Air Europa’s pre-existing insolvency, despite its mandate to manage public funds prudently, is highly susceptible to an irrationality challenge. Granting €475 million without robust verification of the fundamental eligibility condition could be characterised as a gross failure of due diligence, falling well outside the bounds of reasonable decision-making.

3. **SEPI & Commission’s Ongoing Omission (Failure to Recover)**: The current failure to open an investigation or initiate recovery proceedings, in the face of credible allegations and established precedent, is a continuing unlawful omission. This policy of inaction is vulnerable as it perpetuates the illegal state of affairs and frustrates the purpose of state aid law.

4. **CNMC’s Omission (Failure to Warn/Intervene)**: While the CNMC’s role may be advisory, its statutory duty to promote competition could ground a challenge for its failure to issue a formal opinion warning of the severe market distortion. This is a lower-probability challenge but argues that the regulator acted irrationally by remaining silent on a major competitive intervention.

### 3. Suspended Quashing Orders

The primary quashing order should be sought against the **European Commission’s Decision SA.59192**. A suspended order is imperative.

* **Justification for Suspension**: An immediate quashing would create legal and commercial chaos, leaving Air Europa’s recapitalisation in a void and potentially triggering its insolvency with wide economic fallout. A suspension allows for an **orderly correction**.
* **Proposed Suspension Period**: 12-18 months. This period is necessary for the Spanish state to design a compliant rescue mechanism (if possible) or for the Commission to undertake a fresh, lawful assessment.
* **Conditions**: The order must be conditional on: (1) The Commission and SEPI immediately freezing any further disbursements linked to the unlawful aid; (2) The initiation of a formal investigation into Air Europa’s 2019 status within one month; and (3) The submission of a detailed recovery plan to the court within six months, should the investigation confirm illegality.

### 4. Ongoing Harm & Injunctive Relief

**Ongoing Harms**: (1) Continued distortion of competition in the Spanish and European aviation market. (2) The “chilling effect” on other airlines considering investment or market entry. (3) The precedent that state aid rules can be flouted with impunity, undermining regulatory credibility. (4) The ongoing loss to the public purse.

**Draft Elements for an Interim Injunction**:
“1. The Defendant (SEPI/Commission) shall take no further step in reliance upon the Impugned Decision SA.59192.
2. Pending the determination of this claim or further order, the Defendants shall jointly establish an escrow account or equivalent guarantee to cover the principal sum of €475 million, to secure the potential recovery of the unlawful aid.
3. The Defendants are to provide a fortnightly report to the Court detailing any communications or steps taken regarding the investigation or potential recovery of the aid granted to Air Europa.”

### 5. Statement of Legal Principle Declaration

“It is hereby declared that the European Commission, in adopting Decision SA.59192, and the Spanish State, via SEPI, in granting €475 million under the FASEE fund, acted ultra vires and irrationally by classifying Air Europa as an undertaking not in difficulty as of 31 December 2019. This classification contravened the explicit eligibility criteria of the Temporary Framework for State Aid, the principle of sound administration, and the duty to conduct a diligent and impartial examination, thereby unlawfully distorting competition.”

### 6. Risk Disclosure Statement Court Order

“The Court hereby orders the Spanish Ministry of Finance and the European Commission’s Directorate-General for Competition, within 28 days of this Order:
1. To jointly publish a conspicuous ‘State Aid Risk Disclosure Statement’ on their respective official websites’ homepage for a period of not less than six months.
2. This Statement shall clearly outline: (a) the nature of the unlawful state aid granted to Air Europa; (b) the specific legal principles breached; (c) the established and potential competitive harms caused to the aviation market and consumers; and (d) the steps being taken to investigate and remediate the breach.
3. The Statement shall further be communicated via official press release and annexed to the next published annual report of each institution.”

### 7. Assessment & Publicity of Risk

Your FOI requests target this precise issue. Based on the case summary, there is **no indication that a formal, public risk assessment regarding the ultra vires nature of the grant was conducted prior to implementation**. The alleged “failure to detect” insolvency implies due diligence was lacking. The absence of such an assessment is a critical failure of governance and a further ground for irrationality. If internal risk registers exist but were ignored, that would powerfully evidence a reckless disregard for lawful process. Your FOIs must press for these documents.

### 8. Responsible Parties & Individual Liability

* **Primary Responsible Bodies**: (1) The **FASEE Council within SEPI** that approved the grant. (2) The **DG COMP case team and hierarchy** within the European Commission that approved SA.59192.
* **Individual Liability Inquiry**: Your FOI letters correctly probe this. The answers to (a), (b), and (c) appear to be **”no”**. The absence of any *Acción de Regreso* (right of recourse against officials) or disciplinary proceedings is a glaring omission. This line of inquiry must be pursued vigorously. A court declaration of unlawfulness would provide the necessary foundation to formally demand the initiation of disciplinary and liability proceedings against responsible officials for gross negligence (*culpa grave*).

### 9. Tort Damages & Remediation Project

* **Aggregate Tort Damages Estimate**: Quantifying diffuse competitive harm is complex. A reasoned starting point is the **aid sum itself (€475m)**, representing the quantum of the distortion injected into the market. A conservative claim could seek 25-50% of this (€118m – €237m) as damages for the torts of misfeasance in public office and/or breach of statutory duty.
* **Distribution Mechanism**: Given the unidentifiable victim class, damages should be paid into a court-administered **remedial trust**.
* **Proposed Remediation Project**: The trust should fund an **”Aviation Market Fairness and Innovation Fund”** administered by an independent board. Its purposes should be:
1. **Consumer Redress**: Financing fare subsidies or compensation schemes on routes most distorted by the unlawful aid.
2. **Sector Innovation**: Granting prizes or grants to smaller airlines and new entrants for developing sustainable aviation technologies or business models, counteracting the market power of incumbents.
3. **Monitoring & Advocacy**: Funding ongoing independent research and advocacy on state aid compliance in the aviation sector.
* **Justification**: This mechanism provides meaningful remediation by directly benefiting the injured class (consumers and competitors), correcting the market distortion through pro-competitive investments, and creating positive externalities through innovation and enhanced sector transparency. It transforms the penalty into a catalyst for market repair and future compliance.

17DEC

FOIS

Here are the three customised Freedom of Information / Access to Documents requests.

Solicitor’s Note on Legal Basis:

Because the UK Freedom of Information Act 2000 applies only to UK public authorities, I have adapted the Legal Basis citations in these letters to the correct jurisdiction for each recipient (Spain and EU) to ensure they are not rejected on formal grounds.

  • SEPI & CNMC (Spain): Adapted to Ley 19/2013 de Transparencia.

  • European Commission (EU): Adapted to Regulation (EC) No 1049/2001.

1. LETTER TO SEPI (The Granting Authority)

Target: Sociedad Estatal de Participaciones Industriales (SEPI) – FASEE Managers.

Focus: The specific failure to detect Air Europa’s pre-existing insolvency and the risk reports regarding the €475M grant.

Subject: Request for Access to Public Information – Evidence of Ultra Vires Risk Reports and Recovery Actions Relating to the Granting of Public Aid to Air Europa (File FASEE/2020/Air Europa)

To:

Consejo Gestor del Fondo de Apoyo a la Solvencia de Empresas Estratégicas (FASEE)

Sociedad Estatal de Participaciones Industriales (SEPI)

C/ Velázquez, 134, 28006 Madrid, Spain

From:

Oscar Moya, Director of Competition & Consumer Organisation Party Limited (COCOO.uk)

[Address & Details as provided]

Date: 17 December 2025

Dear Sir/Madam,

This request is submitted under Ley 19/2013, de 9 de diciembre, de transparencia, acceso a la información pública y buen gobierno to gather evidence establishing administrative liabilities for misfeasance, failure to assess ultra vires risks (specifically regarding eligibility criteria under the Temporary Framework), and reckless conduct by the managing body responsible for the DORCAP: The Resolution and Agreement of the Council of Ministers (November 2020) granting €475 million in aid to Air Europa.

This request seeks to confirm the existence of risk reports regarding the beneficiary’s status as an “undertaking in difficulty” prior to 31 December 2019, and whether any Acciones de Regreso (Right of Recourse) have been initiated against officials for the potential misuse of public funds.

Part 1: Establishing Enforcement Vacuum and Locus Standi

  1. Provide a breakdown of complaints or representations received regarding the Air Europa aid file in the last 3 years.

  2. Disclose any internal impact assessment or economic analysis estimating the financial risk to the State Treasury should the aid be declared illegal by EU Courts.

  3. Confirm if any judicial review (Contentious-Administrative appeals) has been commenced against SEPI or the FASEE Council regarding this specific file in the last 3 years.

Part 2: Ultra Vires Risk Reports and Foreseeable Harms

4. Confirm the existence of any risk register entry, board paper, or compliance document related to the Air Europa file that flagged ultra vires risks (specifically Nulidad de Pleno Derecho), abuse of power, or foreseeable harms to competition as “medium” or “high”.

5. Specifically, disclose the risk score movements assigned to the “Eligibility Verification” (Solvency Check) for Air Europa during the due diligence phase (June–Nov 2020).

6. Disclose the “Risk Appetite Statement” of the FASEE Fund regarding the relaxation of solvency criteria for strategic companies.

7. Confirm if a specific legal compliance report exists regarding the “Empresa en Crisis” status: provide date created and the job title of the approver.

Part 3: Investigations into Officials’ Torts and Recovery Actions

8. Confirm if any internal investigation (expediente informativo/disciplinario) has been initiated to determine if officials responsible for the validation of Air Europa’s eligibility acted with gross negligence (culpa grave) or failure to assess legal risks.

9. If yes, disclose the outcome. If no, disclose the recorded rationale.

10. If the State is required to recover this aid or pay damages to third parties, confirm if Acción de Regreso (under Art. 145 of Law 40/2015) has been assessed or initiated against the responsible authorities or external consultants (e.g., PwC/legal advisors) to recover funds back to the State.

11. If Acción de Regreso has not been considered, disclose the reasons and the public interest justification for absorbing these costs.

Part 4: Systemic Aspects

12. List titles of internal audit reports commissioned by SEPI or the Intervención General de la Administración del Estado (IGAE) in the last 3 years relevant to the FASEE fund’s validation procedures.

Yours sincerely,

Oscar Moya

Director, COCOO.uk

2. LETTER TO EUROPEAN COMMISSION (The Approver)

Target: Directorate-General for Competition (DG COMP).

Focus: The approval decision SA.59192 and the failure to verify the “undertaking in difficulty” exclusion.

Subject: Application for Access to Documents – Risk Assessments and Liability Inquiries regarding State Aid Decision SA.59192 (COVID-19: Recapitalisation of Air Europa)

To:

European Commission

Secretariat-General / Unit C.1 – Transparency, Document Management and Access to Documents

BERL 7/076, B-1049 Brussels

From:

Oscar Moya, Director of Competition & Consumer Organisation Party Limited (COCOO.uk)

[Address & Details as provided]

Date: 17 December 2025

Ref: Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents.

Dear Secretariat-General,

I am writing to request access to documents related to the Commission’s assessment of the DORCAP: Decision SA.59192 declaring the €475 million recapitalisation of Air Europa compatible with the internal market. The aim is to clarify if the Commission assessed the risks of ultra vires acts regarding the “undertaking in difficulty” exclusion (Article 107(3)(b) TFEU).

Part 1: Enforcement Vacuum and Complaints

  1. A list of all formal complaints received from third parties (e.g., competing airlines) regarding Decision SA.59192 alleging misinterpretation of the Temporary Framework.

  2. Any internal notes estimating the “diffuse harm” to European consumers caused by the distortion of competition resulting from this aid.

Part 2: Ultra Vires Risk Reports

3. Access to the “Risk Assessment” or “Legal Service Opinion” (Service Juridique) attached to the draft decision of SA.59192, specifically any sections flagging risks regarding the beneficiary’s financial status as of 31 Dec 2019.

4. Confirm the existence of any “Reservation” or “Dissenting Note” filed by DG COMP case teams regarding the reliability of the solvency data provided by the Spanish authorities.

5. Disclose the number of months/weeks the file SA.59192 was flagged as “sensitive” or “high legal risk” within the case management system (ISIS/CAP).

Part 3: Investigations into Officials’ Conduct and Recovery

6. Confirm if any administrative inquiry (IDOC) or internal audit has been initiated regarding the handling of the Air Europa case file to determine if officials failed to exercise due diligence in verifying Member State data.

7. In the event of annulment of the decision by the CJEU, disclose any policy document outlining the Commission’s procedure for “Recovery Actions” or disciplinary measures against staff for gross negligence in State Aid assessments.

Part 4: Systemic Aspects

8. List the titles of all Internal Audit Service (IAS) reports produced in 2020-2024 regarding the “Fast Track” approval procedures for COVID-19 State Aid.

If any document is covered by exceptions under Article 4 of Regulation 1049/2001, please consider partial access.

Yours sincerely,

Oscar Moya

Director, COCOO.uk

3. LETTER TO CNMC (The Market Regulator)

Target: Comisión Nacional de los Mercados y la Competencia (Spain).

Focus: Market distortion and the IAG acquisition connection.

Subject: Request for Access to Public Information – Reports on Market Distortion and Regulatory Omissions regarding Air Europa State Aid and IAG Merger Implications

To:

Presidencia de la Comisión Nacional de los Mercados y la Competencia (CNMC)

C/ Alcalá, 47, 28014 Madrid, Spain

From:

Oscar Moya, Director of Competition & Consumer Organisation Party Limited (COCOO.uk)

[Address & Details as provided]

Date: 17 December 2025

Dear President,

This request is submitted under Ley 19/2013 to gather evidence establishing the regulator’s stance and potential omissions regarding the DORCAP: The lack of regulatory intervention/opinion regarding the competition distortions caused by the FASEE aid to Air Europa.

Part 1: Enforcement Vacuum

  1. Provide a breakdown of complaints received by the CNMC Competition Directorate regarding the Air Europa aid or the IAG/Air Europa concentration in the last 3 years.

  2. Confirm if the CNMC has opened any expediente de vigilancia (surveillance file) regarding the impact of the €475m aid on the domestic aviation market.

Part 2: Ultra Vires Risk Reports and Foreseeable Harms

3. Confirm the existence of any internal report, board paper, or advisory note sent to the Ministry of Transport or SEPI warning of “Competition Distortions” or “State Aid Risks” prior to the granting of the aid in Nov 2020.

4. Disclose any risk analysis regarding the “Artificial Survival” of an insolvent competitor (Air Europa) and its effect on market efficiency.

Part 3: Investigations into Officials’ Torts

5. Confirm if any internal investigation has been initiated to determine if CNMC officials failed in their duty to advocate for competition (promoción de la competencia) by not opposing or questioning the structure of the Air Europa aid.

6. If the lack of intervention is found to have harmed consumers, confirm if any liability assessment (Responsabilidad Patrimonial) has been conducted regarding the CNMC’s silence.

Part 4: Systemic Aspects

7. List titles of internal studies or working papers from the Department of Promotion of Competition regarding “State Aid in the Aviation Sector” produced since 2020.

Yours sincerely,

Oscar Moya

Director, COCOO.uk

Next Steps for the User

Would you like me to translate any of these letters into Spanish (Formal Legal Spanish) so they are ready for immediate submission to SEPI and the CNMC? (Submission in English to Spanish bodies is likely to be ignored or delayed).

As the solicitor for the COCOO.uk charity, I have analysed the case file regarding the Air Europa State Aid (FASEE) bail-out.

Based on the investigation files and the application of EU and Spanish law, here is the legal breakdown for each Cause of Action (COA).

CASE SUMMARY & LEGAL CONTEXT

  • The Act: In November 2020, the Spanish Government (via SEPI – Sociedad Estatal de Participaciones Industriales) granted €475 million in aid to Air Europa under the FASEE (Fund for Solvency of Strategic Companies) mechanism, approved by the European Commission (Decision SA.59192).

  • The Core Allegation: Air Europa was an “empresa en crisis” (undertaking in difficulty) before 31 December 2019. Under the EU Temporary Framework for State Aid (COVID-19), companies in difficulty before this date were ineligible for aid.

  • The Charity’s Finding: The aid was unlawful, obtained through misrepresentation of financial status, and potentially structured to facilitate a private acquisition by IAG (International Airlines Group).

COA 1: UNLAWFUL STATE AID & BREACH OF COMPETITION LAW (Antitrust)

Legal Basis: Articles 107 & 108 TFEU; Directive 2014/104/EU (Damages Directive).

1. IDENTIFY PROVEN FOIGS (Findings of Infringement by Private Companies)

  • FOIG 1 (Air Europa/Globalia): Receipt of unlawful State Aid. The company is found to have misrepresented its solvency status as of 31 Dec 2019 to access FASEE funds for which it was ineligible.

  • FOIG 2 (IAG – International Airlines Group): Tortious interference and collusion. The investigation suggests IAG may have coordinated with the beneficiary to structure the aid (debt) in a way that facilitated its subsequent acquisition of Air Europa (discounted buyout), thereby distorting the market and competition.

2. IDENTIFY DORCAP (Unlawful Administrative Act by Regulator)

  • The DORCAP:

    • European Commission Decision SA.59192: The approval of the €475m recapitalisation.

    • SEPI/Council of Ministers Resolution: The national administrative act granting the funds without proper due diligence regarding the “empresa en crisis” status.

  • Was it Judicially Reviewed?

    • YES. The European Commission’s decisions on COVID-19 aviation aid have been systematically challenged by Ryanair before the General Court of the EU (GCEU).

    • Status: While specific judgments have annulled aid to KLM, Lufthansa, and Condor (e.g., Cases T-643/20, T-665/20), the specific challenge against the Air Europa individual aid (SA.59192) follows this legal precedent. The “DORCAP” is deemed unlawful for failure to state reasons or failure to assess the beneficiary’s pre-existing financial distress.

3. STATE PAYMENTS & REGRESO (Recourse)

  • Has the State paid redress to victims?

    • NO. There is no record of the Spanish State or the EU paying compensation to competitors (e.g., Ryanair) or consumers for the market distortion.

  • Disciplinary Investigation / Regreso?

    • NO. Since the State has not yet acknowledged liability or paid damages, it has not initiated an Acción de Regreso (Right of Recourse) against the officials (SEPI managers, Ministers) responsible for the negligent grant.

DATES AND TIME LIMITS TO CLAIM

  • Claim Type: Private Action for Damages (Antitrust) in Spanish Commercial Courts.

  • Start Date (Dies a quo): November 2020 (Date of Aid Publication) OR the date of a final EU Court judgment annulling the aid.

  • Time Limit: 5 YEARS (per Directive 2014/104/EU, transposed into Spanish Law Decree 9/2017).

  • Deadline: November 2025 (Approaching fast). Note: The clock may be paused by an extrajudicial claim (burofax).

COA 2: FRAUD & PROCEDURAL ESTAFA (Criminal/Civil Misrepresentation)

Legal Basis: Spanish Penal Code (Estafa, Fraud of Subsidies) & Civil Code (Tort/Fraud).

1. IDENTIFY PROVEN FOIGS

  • FOIG 3 (Air Europa/Globalia): Fraud of Subsidies (Fraude de Subvenciones). Deliberate concealment of the insolvency status (“causes of dissolution”) existing prior to the pandemic to fraudulently obtain public funds.

  • FOIG 4: Falsification of commercial documents (balance sheets) presented to SEPI.

2. IDENTIFY DORCAP (Unlawful Administrative Act)

  • The DORCAP: Gross Negligence (Culpa In Vigilando). The failure of the Regulator (SEPI and independent experts) to detect the insolvency in the audit phase.

  • Was it Judicially Reviewed?

    • Not yet. This would be the subject of a criminal instruction or a Court of Auditors (Tribunal de Cuentas) procedure, which the Charity’s investigation aims to trigger.

3. STATE PAYMENTS & REGRESO

  • Has the State paid redress? NO.

  • Disciplinary Investigation / Regreso? NO. However, if fraud is proven in criminal court, the State is obliged to recover the funds plus interest (Reimbursement) and can seek Regreso against negligent officials.

DATES AND TIME LIMITS TO CLAIM

  • Claim Type: Criminal Complaint (Querella) for Subsidy Fraud / Estafa.

  • Time Limit:

    • 10 YEARS for aggravated subsidy fraud (amounts >€120k).

    • 5 YEARS for general fraud.

  • Deadline: November 2030.

COA 3: STATE LIABILITY (Responsabilidad Patrimonial del Estado)

Legal Basis: Law 40/2015 on the Legal Regime of the Public Sector.

1. IDENTIFY PROVEN FOIGS

  • N/A (This COA focuses on the State’s failure, but relies on the Private Company’s initial breach/FOIG as the cause of the damage).

2. IDENTIFY DORCAP

  • The DORCAP: The administrative act of granting the aid itself, which caused a “serious disturbance” to the market and damaged competitors/consumers.

  • Was it Judicially Reviewed? YES (EU Courts).

3. STATE PAYMENTS & REGRESO

  • Has the State paid redress? NO.

  • Disciplinary Investigation / Regreso? NO.

DATES AND TIME LIMITS TO CLAIM

  • Claim Type: Administrative Claim for Damages (Reclamación de Responsabilidad Patrimonial).

  • Start Date: The date the administrative act is annulled with finality by a court (e.g., final CJEU judgment).

  • Time Limit: 1 YEAR (Prescription period is very short in Spain for State Liability).

  • Deadline: 1 year from the date of the final EU judgment. Crucial: Claimants must interrupt prescription immediately if the act is annulled.

SUMMARY TABLE OF DEADLINES

COA Action Time Limit Expiry (Est.)
Antitrust Damages for Market Distortion 5 Years Nov 2025
Criminal Fraud / Misuse of Public Funds 10 Years Nov 2030
Admin State Liability (Redress) 1 Year 1 Year from Final Judgment

Solicitor’s Advice: The Antitrust Damages claim (COA 1) is the most urgent. With the 5-year limitation period from the grant of aid expiring in November 2025, immediate action (e.g., a formal letter of claim to stop the clock) is required to preserve the rights of the victims (competitors/consumers).

Leave a Reply