# C_2019148EN.01003501.xml

| 29.4.2019 | EN | Official Journal of the European Union | C 148/35 |
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29.4.2019

EN

Official Journal of the European Union

C 148/35

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Appeal brought on 25 February 2019 by Scandlines Danmark ApS and Scandlines Deutschland GmbH against the judgment of the General Court (Sixth Chamber) delivered on 13 December 2018 in Case T-630/15: Scandlines Danmark and Scandlines Deutschland v Commission

(Case C-174/19 P)

(2019/C 148/33)

Language of the case: English

Parties

Appellants: Scandlines Danmark ApS, Scandlines Deutschland GmbH (represented by: L. Sandberg-Mørch, advokat)

Other parties to the proceedings: European Commission, Kingdom of Denmark, Föreningen Svensk Sjöfart, Naturschutzbund Deutschland (NABU) eV

Form of order sought

The appellants claim that the Court should:

| — | Set aside the judgment of 13 December 2018 of the General Court in Case T-630/15 to the extent that it dismissed the appellant’s pleas that the measures granted to A/S Femern Landanlæg constitute aid; that the Hinterland Connections costs do not constitute eligible costs for the compatibility of the aid granted to Femern A/S; that the measures granted to Femern A/S do not have an incentive effect; that the counterfactual analysis is unlawful; that the measures granted to Femern A/S do not cause undue distortion of competition; and that the new pleas submitted by the appellant were inadmissible. |
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Set aside the judgment of 13 December 2018 of the General Court in Case T-630/15 to the extent that it dismissed the appellant’s pleas that the measures granted to A/S Femern Landanlæg constitute aid; that the Hinterland Connections costs do not constitute eligible costs for the compatibility of the aid granted to Femern A/S; that the measures granted to Femern A/S do not have an incentive effect; that the counterfactual analysis is unlawful; that the measures granted to Femern A/S do not cause undue distortion of competition; and that the new pleas submitted by the appellant were inadmissible.

| — | Order the respondent to pay its own costs and the costs of the appellant. |
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Order the respondent to pay its own costs and the costs of the appellant.

Pleas in law and main arguments

The appellants bring seven pleas in law against the contested judgment:

| — | First, in violation of Articles 107(1) and 108(2) TFEU, the General Court erred by concluding that the Commission did not err in law and did not experience serious difficulties in holding that the State guarantees and State loans granted to A/S Femern Landanlæg for the Danish rail Hinterland Connections were not liable to distort competition as the relevant market is not open to competition.
  The appellants argue that this erroneous conclusion of the General Court is based on four errors in law, corresponding to four sub-pleas:






  a) | The General Court erred in law by holding that the State guarantees and State loans granted to A/S Femern Landanlæg are not liable to affect competition although the Fixed Link (operated by Femern A/S) and the Danish rail Hinterland Connections (operated by Femern Landanlæg) together constitute one integrated project and the State guarantees and State loans granted to Femern A/S have already been found to be liable to distort competition. |
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First, in violation of Articles 107(1) and 108(2) TFEU, the General Court erred by concluding that the Commission did not err in law and did not experience serious difficulties in holding that the State guarantees and State loans granted to A/S Femern Landanlæg for the Danish rail Hinterland Connections were not liable to distort competition as the relevant market is not open to competition.

The appellants argue that this erroneous conclusion of the General Court is based on four errors in law, corresponding to four sub-pleas:

a)

The General Court erred in law by holding that the State guarantees and State loans granted to A/S Femern Landanlæg are not liable to affect competition although the Fixed Link (operated by Femern A/S) and the Danish rail Hinterland Connections (operated by Femern Landanlæg) together constitute one integrated project and the State guarantees and State loans granted to Femern A/S have already been found to be liable to distort competition.

| b) | The General Court erred in law by holding that the market for the management of railway infrastructure in Denmark is not ‘de lege’ open to competition. |
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b)

The General Court erred in law by holding that the market for the management of railway infrastructure in Denmark is not ‘de lege’ open to competition.

| c) | The General Court erred in law by holding that the market for the management of railway infrastructure in Denmark is not ‘de facto’ open to competition. |
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c)

The General Court erred in law by holding that the market for the management of railway infrastructure in Denmark is not ‘de facto’ open to competition.

| d) | The markets for the construction and maintenance of the railway infrastructure, which are open to competition, are separate from the market for the management and operation, in the strict sense, of the railway infrastructure |
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d)

The markets for the construction and maintenance of the railway infrastructure, which are open to competition, are separate from the market for the management and operation, in the strict sense, of the railway infrastructure

| — | Second, in violation of Articles 107(1) and 108(2) TFEU, the General Court erred by concluding that the Commission did not err in law and did not face serious difficulties in determining that the State guarantees and State loans granted to A/S Femern Landanlæg for financing the Danish rail Hinterland Connections was not liable to affect trade between Member States. |
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Second, in violation of Articles 107(1) and 108(2) TFEU, the General Court erred by concluding that the Commission did not err in law and did not face serious difficulties in determining that the State guarantees and State loans granted to A/S Femern Landanlæg for financing the Danish rail Hinterland Connections was not liable to affect trade between Member States.

| — | Third, in violation of Article 107(3)(b) and 108(2) TFEU, the General Court erred by concluding that the costs of the Hinterland Connections may be included in the calculation of the maximum permissible aid intensity for the Fixed Link (in the context of the compatibility analysis) although, according to the General Court, the funding granted to the Hinterland Connections does not constitute State aid. |
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Third, in violation of Article 107(3)(b) and 108(2) TFEU, the General Court erred by concluding that the costs of the Hinterland Connections may be included in the calculation of the maximum permissible aid intensity for the Fixed Link (in the context of the compatibility analysis) although, according to the General Court, the funding granted to the Hinterland Connections does not constitute State aid.

| — | Fourth, in violation of Article 107(3)(b) TFEU and Article 108(2) TFEU the General Court erred by concluding that the Commission did not err in law and did not face serious difficulties when deciding that the aid to Femern A/S had an incentive effect; |
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Fourth, in violation of Article 107(3)(b) TFEU and Article 108(2) TFEU the General Court erred by concluding that the Commission did not err in law and did not face serious difficulties when deciding that the aid to Femern A/S had an incentive effect;

| — | Fifth, in violation of Article 107(3)(b) TFEU and Article 108(2) TFEU the General Court erred by concluding that the Commission did not err in law and did not face serious difficulties when it decided that the Danish authorities had submitted an appropriate counterfactual scenario for its assessment concerning the necessity of the aid. |
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Fifth, in violation of Article 107(3)(b) TFEU and Article 108(2) TFEU the General Court erred by concluding that the Commission did not err in law and did not face serious difficulties when it decided that the Danish authorities had submitted an appropriate counterfactual scenario for its assessment concerning the necessity of the aid.

| — | Sixth, the General Court erred in law by holding that the aid granted to Femern A/S does not cause undue distortions of competition. |
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Sixth, the General Court erred in law by holding that the aid granted to Femern A/S does not cause undue distortions of competition.

| — | Seventh, the General Court erred in law by rejecting the appellant’s introduction of new pleas regarding the Additional Construction Measures on the grounds that they had not been authorized by the Commission Decision of 23 July 2015. |
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Seventh, the General Court erred in law by rejecting the appellant’s introduction of new pleas regarding the Additional Construction Measures on the grounds that they had not been authorized by the Commission Decision of 23 July 2015.

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