The Bundesverwaltungsgericht (BVerwG, Federal Administrative Court) has ruled that the recovery of operating aid granted to Frankfurt-Hahn Airport was unlawful (BVerwG, judgment of 10 June 2026 – 8 C 4.25). According to the decision, the lawfulness of a grant approval notice withdrawn pursuant to § 48 VwVfG (German Administrative Procedure Act) is generally determined by the factual and legal circumstances prevailing when it was issued. Subsequent changes in the law must, however, be taken into account if they have retroactive effect as of that relevant date.
Operating aid for Frankfurt-Hahn Airport
The appeal on points of law concerned operating aid granted by the Land Rheinland-Pfalz to Flughafen Frankfurt Hahn GmbH for 2017 and 2018. The airport is used predominantly by Ryanair; Deutsche Lufthansa AG does not offer any flights from there.
Approval by the Land Rheinland-Pfalz
By notice dated 23 March 2018, the Land Rheinland-Pfalz approved operating aid of up to EUR 25.3 million for the years 2017 to 2021. Further notices were issued on 23 October 2018 and 20 April 2020.
On 31 July 2017, the European Commission had already decided not to raise objections to the proposed aid. Decision C(2017) 5289 final was adopted without the prior initiation of a formal investigation procedure under Art. 108(2) TFEU (Treaty on the Functioning of the European Union).
Proceedings before the EU Courts
In March 2018, Deutsche Lufthansa AG brought an action for annulment of the European Commission’s decision before the Gericht der Europäischen Union (EuG, General Court of the European Union).
First judgment of the Gericht der Europäischen Union
The Gericht der Europäischen Union annulled the Commission’s decision by judgment of 19 May 2021 (EuG, judgment of 19 May 2021 – T-218/18). The Land Rheinland-Pfalz appealed against that decision to the Gerichtshof der Europäischen Union (Court of Justice of the European Union) and also applied for interim relief.
The appeal proceedings were conducted under case reference C-466/21 P. The Advocate General had proposed that the judgment of the Gericht der Europäischen Union be set aside.
Judgment set aside by the Gerichtshof der Europäischen Union
On 14 September 2023, the Gerichtshof der Europäischen Union set aside the judgment of 19 May 2021 and referred the case back to the Gericht der Europäischen Union.
In the reopened proceedings, the Gericht der Europäischen Union dismissed the action for annulment by judgment of 30 April 2025 (EuG, judgment of 30 April 2025 – T-218/18 RENV). The applicant had failed to establish its standing to bring the action to the requisite standard. The European Commission’s decision of 31 July 2017 therefore remained in force.
Withdrawal of the approval notices
Following the first judgment of the Gericht der Europäischen Union, the Land Rheinland-Pfalz withdrew the notices of 23 March 2018, 23 October 2018 and 20 April 2020 by notice dated 17 December 2021. At the same time, it demanded repayment of the operating aid disbursed.
Flughafen Hahn GmbH brought an action before the Verwaltungsgericht Koblenz (Koblenz Administrative Court) on 20 January 2022. Insolvency proceedings concerning its assets were opened on 1 February 2022. As a result, the administrative court proceedings were stayed by operation of law. The Land filed claims of approximately EUR 10.5 million in the schedule of claims.
After the Gerichtshof der Europäischen Union had set aside the first judgment of the Gericht der Europäischen Union, the Land and the insolvency administrator resumed the administrative court proceedings.
Decisions of the administrative courts
The judgment of the Bundesverwaltungsgericht was preceded by the following decisions:
- The Verwaltungsgericht Koblenz ruled by judgment of 12 March 2024 under case reference 1 K 55/22.KO.
- The Oberverwaltungsgericht Rheinland-Pfalz (Higher Administrative Court of Rhineland-Palatinate) ruled on appeal by judgment of 10 December 2024 under case reference 6 A 10425/24.OVG.
In the appeal proceedings, the Land filed a counterclaim seeking a declaration that the claim filed in the schedule of claims was valid. The Oberverwaltungsgericht found that the Land was entitled to the claim asserted by notice dated 17 December 2021. The insolvency administrator appealed against that judgment on points of law on 17 January 2025.
Bundesverwaltungsgericht finds recovery unlawful
The insolvency administrator’s appeal on points of law was successful. In the view of the Bundesverwaltungsgericht, the approval notices were lawful when they were issued. The withdrawal and recovery notice of 17 December 2021 therefore could not be based on § 1(1) VwVfG Rheinland-Pfalz (Rhineland-Palatinate Administrative Procedure Act) in conjunction with § 48 VwVfG.
Relevant date for assessing lawfulness
Whether a withdrawn grant approval notice was unlawful must generally be assessed on the basis of the factual and legal circumstances prevailing when it was issued. According to the judgment, this principle does not preclude subsequent changes in the law from being taken into account. The prerequisite is that the change have retroactive effect as of the date relevant to the assessment of the grant approval notice.
For the operating aid, the decisive issue was whether the European Commission’s approval decision was effective. Because that decision had been challenged by an action for annulment, its effectiveness had to be assessed on the basis of the most recent enforceable decision by the EU Courts concerning that action.
Significance of the most recent enforceable EU decision
The Bundesverwaltungsgericht relied on the fact that the first judgment of the Gericht der Europäischen Union of 19 May 2021 had been set aside by the Gerichtshof der Europäischen Union. Subsequently, the Gericht der Europäischen Union dismissed the action for annulment on 30 April 2025. The European Commission’s approval decision therefore remained in force.
According to the decision, an obligation under EU law to recover aid pursuant to Art. 4(3) TEU (Treaty on European Union) requires that, at a minimum, the most recent decision of the EU Courts supports a finding that the standstill obligation has been infringed. A decision that is not yet final but is enforceable is also sufficient for this purpose. In view of the most recent decision of the EU Courts, this requirement was not met.
Significance of the judgment for grant approval notices
The judgment makes clear that subsequent decisions by the EU Courts may affect the assessment of a grant approval notice issued at an earlier date. This is particularly relevant where the lawfulness of the funding depends on an approval decision by the European Commission and the validity of that decision is the subject of an action for annulment.
In such circumstances, the decision to withdraw approval cannot be assessed in isolation on the basis of an interim stage of the proceedings. Retroactive changes in the relevant legal framework and the most recent enforceable decision of the EU Courts must be taken into account in the assessment.
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