Judgment;Abstract;Judgment (extracts) — ECLI:EU:T:2024:126
Date: 2024-02-28
Language of the case: English
Court formation: First Chamber, Extended Composition
Subject matter: State aids;Competition
Procedure: Action for annulment - unfounded
Origin: Germany;Denmark

summary of that report, which was translated into the language of the case, that the solution of a cable-stayed bridge or an immersed tunnel could be completed without aid. On the contrary, that report starts from the premiss that such a project would receive EU financing amounting to approximately 10% of the investment costs, with the result that that financing would have a positive impact on the costs borne by the Kingdom of Denmark and the Federal Republic of Germany. 153 The same finding may be made as regards the report on the environmental impact of the Fixed Link, carried out by Femern and relied on by FSS, Aktionsbündnis, NABU and VDR. It is true that, in that report, several alternatives were envisaged, namely a cable-stayed bridge, a suspension bridge and a bored tunnel. However, the interveners have not demonstrated that it is apparent from the extracts from that report, translated into the language of the case, that those alternative projects could be completed without aid. 154 Consequently, the Commission cannot be criticised for not having taken into account alternative fixed link projects. 155 Third, as regards the project consisting of an upgrade of the Jutland (Denmark) route, relied on by the applicants, it must be noted that the reference to page 5 of the summary of the COWI report is incorrect, since the summary of that report translated into the language of the case does not refer to such a project. As regards the project relied on by NABU, which consists of an upgrade of ferry services across the Fehmarn Belt and an upgrade of the existing railways through Jutland, it must also be stated that such a project does not appear in the summary of the COWI report, translated into the language of the case, to which no specific reference is made in the statement in intervention. In addition, as regards the project relied on by NABU, which is the improvement of a Jutland rail link passing through Kolding (Denmark), it must be noted that the statement in intervention does not contain sufficient details to enable that project to be identified. Therefore, the mere reference to those projects relied on by the applicants and NABU does not demonstrate that the Commission was wrong not to take them into account. 156 It follows from the foregoing considerations that the applicants, FSS, Aktionsbündnis, NABU and VDR have not demonstrated that the findings made in recitals 306 to 308 of the contested decision and the conclusion that the counterfactual scenario consists in the absence of an alternative project were vitiated by a manifest error of assessment. 157 In the second place, the Court cannot accept FSS’ argument that, in essence, it is apparent from paragraph 150 of the judgment of 12 July 2018, Austria v Commission (T‑356/15, EU:T:2018:439), and from paragraph 29 of the IPCEI Communication that a Member State cannot channel aid towards a project of its choosing where there are clearly defined and sufficiently predictable alternative projects which meet the same objectives and require a lower amount of aid. 158 First, it must be stated that that line of argument has no basis in the judgment of 12 July 2018, Austria v Commission (T‑356/15, EU:T:2018:439). 159 Second, as the Commission stated, where there is an important project of common European interest, provided that the conditions laid down in Article 107(3)(b) TFEU and those laid down in the IPCEI Communication are satisfied, a Member State is free to grant aid to a project of its choosing. 160 In the third place, contrary to what the applicants claim, in order to conclude that, in the present case, the counterfactual scenario consists in the absence of an alternative project, the Commission did not rely on the finding in the third sentence of recital 304 of the contested decision that, as a specific-purpose company established to complete the Fixed Link, Femern has no power to decide to carry out an alternative project of a different scale. As is apparent from recitals 306 to 308 of the contested decision, in order to reach that conclusion, the Commission relied on the information submitted by the Danish authorities according to which there is no project comparable to the Fixed Link that could be carried out without aid. 161 Since the applicants, FSS, Aktionsbündnis, NABU and VDR have not succeeded in demonstrating that there is an alternative project which is of a comparable size or scope or which provides benefits equivalent to those expected from the Fixed Link project and which could be carried out without aid, there can be no difference in treatment in favour of a public undertaking. Paragraph 29 of the IPCEI Communication expressly provides that the counterfactual scenario may consist in the absence of an alternative project in respect of projects such as that at issue in the present case, for which, due to the high investment costs and risks, no private investor would commit to under normal market conditions. Therefore, if the public authorities were to entrust a private undertaking with carrying out such a project, there would also be no disregarding of the IPCEI Communication if it were validly established that the counterfactual scenario consisted in the absence of an alternative project. It follows that Aktionsbündnis, NABU and VDR cannot maintain that the Commission breached infringed the principle of equal treatment. 162 Lastly, as regards the argument put forward by NABU and Aktionsbündnis that, in essence, the Fixed Link project is more harmful to the environment than improved ferry services, it must be held that such considerations are irrelevant for the purpose of determining whether there is an alternative project capable of being carried out without aid. Moreover, there is no evidence to support the argument as to the alleged harmful effects of the Fixed Link on the environment or the argument regarding the supposed beneficial effects of ferries on carbon dioxide (CO2) emissions. 163 It follows from the foregoing considerations that the Commission did not err in law or make a manifest error of assessment in finding that the counterfactual scenario consisted in the absence of an alternative project. 164 Accordingly, the second complaint, alleging that the Commission was wrong to find that the counterfactual scenario consisted in the absence of an alternative project, must be rejected as unfounded. (c) The third complaint, challenging the periods used for the purposes of calculating the IRR (necessity of the aid) and of calculating the funding gap (proportionality of the aid) 165 The applicants, FSS, ECSA, Trelleborg Hamn and VDR submit that the lifetime of the investment, provided for in paragraph 31 of the IPCEI Communication, for the purposes of calculating the funding gap should correspond to the lifetime of the project, provided for in paragraph 30 of that communication, in order to calculate the IRR. Therefore, the applicants and those interveners rely on the same arguments in support of the complaint, put forward in the part concerning the necessity of the aid, alleging a manifest error of assessment of the period used for the purposes of calculating the IRR and in support of the complaint, put forward in the third part concerning the proportionality of the aid, alleging a manifest error of assessment of the period used for the purposes of calculating the funding gap. 166 The applicants, FSS, ECSA, Trelleborg Hamn and VDR submit that the Commission made manifest errors of assessment in relying on a period of 40 years for the calculation of the IRR and the funding gap. According to them, by using 120 years for the lifetime of the project, first, the IRR was higher because the revenue generated by the Fixed Link was higher over time and, second, the funding gap was lower. 167 The Commission, supported by the Kingdom of Denmark, rejects that line of argument. 168 In that regard, it should be noted that, first, in the absence of an alternative project, according to paragraph 30 of the IPCEI Communication, the Commission must verify that the aid amount does not exceed the minimum necessary for the aided project to be sufficiently profitable, for example by making it possible to achieve an IRR corresponding to the sector- or firm-specific benchmark or hurdle rate, and all relevant expected costs and benefits must be considered over the lifetime of the project. It follows that the aid is necessary if the project is not profitable during its lifetime (see, to that effect, judgment of 13 December 2018, Scandlines Danmark and Scandlines Deutschland v Commission, T‑630/15, not published, EU:T:2018:942, paragraph 210). 169 Second, in accordance with paragraph 31 of the IPCEI Communication, the maximum aid level is determined with regard to the identified funding gap in relation to the eligible costs and, if justified by the funding gap analysis, the aid intensity could reach up to 100% of the eligible costs. That same paragraph defines the funding gap as the difference between the positive and negative cash flows over the lifetime of the investment, discounted to their current value on the basis of an appropriate discount factor reflecting the rate of return necessary for the beneficiary to carry out the project notably in view of the risks involved. 170 In the present case, it is apparent from recital 327 of the contested decision that, for the purposes of determining the funding gap, the Danish authorities used an expected economic lifetime of 40 years, on the ground that it is the timespan that an investor would normally consider when investing in a large-scale infrastructure such as the Fixed Link. Although the Commission stated that Femern’s website indicated a project lifetime of 120 years, the Commission nevertheless noted that when cash flows are distant, the impact of the discounting is significant. In addition, it considered that, due to the high degree of uncertainty surrounding any financial forecast over such a very long period of time, it is unlikely that any reasonable investor would accept to make an investment whose profitability prospects can be realised only over such a very long period of time. Therefore, the Commission considered that an operational period of 40 years was a reasonable assumption for the calculation of the funding gap of the Fixed Link. 171 As regards the IRR, in recitals 309 and 310 of the contested decision, since Femern does not have an investment project of a similar kind or overall cost of capital that could be used to calculate whether the aid amount exceeds the level necessary for the project to be sufficiently profitable, the Commission considered that it was appropriate to compare the IRR from the Fixed Link project, without aid, with the cost of capital requirements seen in the industry concerned, namely a 5.59% weighted average cost of capital (‘WACC’). Thus, it is apparent from recital 312 of the contested decision that, by using 40 years for the economic lifetime of the investment, the Commission found that the IRR of the project without aid was 3.9% and that it would remain below the WACC even with a longer lifetime until 2100. 172 It should be noted that, by their line of argument, the applicants, FSS, ECSA, Trelleborg Hamn and VDR complain that the Commission calculated the IRR and the funding gap by using 40 years as the economic lifetime of the investment instead of a project lifetime of 120 years. 173 In that regard, in the first place, it should be noted that, in paragraph 213 of the judgment of 13 December 2018, Scandlines Danmark and Scandlines Deutschland v Commission (T‑630/15, not published, EU:T:2018:942), the Court held that, when referring to the ‘repayment period for the aid’, the Commission had failed to apply correctly paragraph 30 of the IPCEI Communication, which states that the IRR is to be calculated taking into account all expected costs and benefits over the ‘lifetime of the project’. Furthermore, the Court considered that, to base the calculation of the IRR on a very uncertain repayment period was also arbitrary, as that period may vary depending on subjective factors, including the type of aid and the arrangements for repayment negotiated between the beneficiary and the financial institution granting the loan. 174 Contrary to what is claimed by the applicants, ECSA, Trelleborg Hamn and VDR, it cannot be inferred from those considerations that the Court intended to require the Commission to take into account a period of 120 years for the calculation of the IRR, particularly since, in the judgment of 13 December 2018, Scandlines Danmark and Scandlines Deutschland v Commission (T‑630/15, not published, EU:T:2018:942), the only reference to that period appears in the conditional tense in the parties’ arguments. In addition, it must be noted that, in paragraph 217 of that judgment, the Court held that it could not be ruled out, in principle, that aid was necessary for the realisation of such a large project, but that an insufficient and imprecise examination of the necessity of the aid had indicated that there were serious difficulties, which should have prompted the Commission to initiate the formal investigation procedure, and which meant that it was not possible for the Court to examine whether the Commission had made a manifest error of assessment. 175 In the second place, it is necessary to ascertain whether, as the applicants, FSS, ECSA, Trelleborg Hamn and VDR claim, the Commission disregarded paragraphs 30 and 31 of the IPCEI Communication by taking into account the conduct of investors on the market for the determination of the relevant period for the calculation of the IRR and the funding gap. 176 First, for the relevant lifetime for the purposes of calculating the IRR, the requirement to take into account all relevant expected costs and benefits ‘over the lifetime of the project’, laid down in the last sentence of paragraph 30 of the IPCEI Communication, must be interpreted in the light of the factors to be taken into consideration when carrying out the test of comparing the IRR, without aid, with a benchmark. It must be noted that paragraph 30 of the IPCEI Communication provides that the IRR must be compared with market indicators, namely the sector- or firm-specific hurdle rate, and that normal rates of return required by the beneficiary in other investment projects of a similar kind, as well as cost of capital as a whole or returns commonly observed in the industry concerned, may also be taken into account. 177 Furthermore, in the present case, as stated in paragraph 171 above, in order to determine whether the IRR without aid was sufficient to achieve the minimum level of profitability that would have been required by the market, it was necessary to use the WACC. This is a rate which represents the cost of financing from all sources (debt, equity) for a comparable project. It is common ground between the main parties that the value of that rate reflects the minimum level of profitability to be achieved in order for the project to be viable. It was calculated, as is apparent from recitals 328 to 339 of the contested decision, by taking into account market indicators (risk premium on debt, risk premium on equity, specific risk premium, risk-free rate). Thus, since the test laid down in paragraph 30 of the IPCEI Communication requires a determination of the minimum level of profitability on the market for a comparable project, the Commission cannot be criticised for having disregarded the IPCEI Communication by determining the relevant period for the calculation of the IRR by taking into account the conduct of investors on the market. 178 Similarly, the reference to the ‘lifetime of the project’ in the last sentence of paragraph 30 of the IPCEI Communication cannot be interpreted as requiring the Commission to examine whether the aid exceeds the minimum necessary for the investment project in respect of the aided Fixed Link to be sufficiently profitable over the lifetime of that infrastructure. That reference, which is intended to take into account all the expected costs and benefits that have to be taken into consideration, must be understood as referring to the economic lifetime of the investment project and not the infrastructure from a technical perspective. It follows that, in the circumstances of the present case, the Commission was entitled to calculate the IRR from the Fixed Link project without aid, on the basis of the economic lifetime of the investment project. 179 Second, as regards the period used to calculate the funding gap, it follows from paragraph 31 of the IPCEI Communication that the cash flows must be discounted on the basis of an appropriate discount factor reflecting the rate of return necessary for the beneficiary to carry out the project, notably in view of the risks involved. It follows that, as the Commission has stated, the purpose of the analysis of the funding gap is to determine the extent to which the project could be financed under market conditions. It follows from paragraph 5 of the IPCEI Communication that aid granted for the deployment of important projects of common European interest is intended to overcome the lack of financing available on the market for the completion of such projects which require significant participation by the public authorities. In the present case, for the calculation of the funding gap, the WACC was also used to discount the cash flows of the investment project. Since that rate was determined by taking into account market parameters, the Commission cannot be criticised for having disregarded paragraph 31 of the IPCEI Communication by taking into consideration, in order to determine the relevant period for the purpose of calculating the funding gap, the perception of investors on the market. 180 Third, as regards the argument of the applicants and of FSS that, in essence, the period for the calculation of the IRR and the funding gap should correspond to the ‘period of the economic utilisation of the asset’ set out in point 99 of the Guidelines on State aid to airports and airlines (OJ 2014 C 99, p. 3), it must be held that, as the Commission states, those guidelines are not applicable in the present case. In any event, in the context of the present case, a distinction must be drawn between, on the one hand, the period of the economic utilisation of the asset and, on the other hand, the lifetime of the asset, that is to say, the lifetime of the infrastructure from a technical perspective. In that regard, it must be stated that the 120-year lifetime referred to in recital 327 of the contested decision seems more to refer to the lifetime of the asset from a technical perspective. Given the evolution of modes of transport, it is difficult for an investor to predict whether it would be possible to operate an infrastructure economically over such a long period. 181 As regards the decisions on State aid in the airport sector relied on by the applicants and as regards the decision on a railway tunnel relied on by FSS, it should be noted that it is in the light of Article 107(3)(b) TFEU – and not of the Commission’s previous practice – that it must be assessed whether or not aid satisfies the conditions laid down by that provision for its application (see, to that effect and by analogy, judgments of 21 July 2011, Freistaat Sachsen and Land Sachsen-Anhalt v Commission, C‑459/10 P, not published, EU:C:2011:515, paragraph 38, and of 22 September 2020, Austria v Commission, C‑594/18 P, EU:C:2020:742, paragraph 25). In any event, it must be noted that it is apparent from those decisions that the period used in those decisions in order to calculate the funding gap was less than 40 years and that it was not necessarily dependent on the duration of the concession awarded for the operation of the infrastructure when the latter duration is long. 182 It follows from the foregoing considerations that, in order to determine the relevant period for calculating the IRR and the funding gap, the Commission was entitled to rely on the conduct of investors on the market. It follows that the Commission cannot be criticised for not having calculated the IRR and the funding gap on the basis of a period of 120 years corresponding to the estimated lifetime of the project. 183 In the third place, it is necessary to ascertain whether the Commission made a manifest error of assessment in using 40 years as the economic lifetime of the investment in order to calculate the IRR and the funding gap. 184 In the present case, as stated in paragraph 170 above, in recital 327 of the contested decision, the Commission explained why it would not be reasonable to use a period of 120 years. Thus, since it was for the Commission to determine the cost of financing, on the market, an investment comparable to that made for the Fixed Link, the Commission took the view that it was appropriate to work on the assumption that the operational period would be 40 years, which it considers to be longer than the period used for other infrastructure projects in the ports and airport sectors. 185 As regards the applicants’ argument that, in essence, the period of 40 years does not allow certain future revenue to be taken into account, which has the effect of artificially reducing the IRR and artificially increasing the funding gap, given the uncertainties inherent in investments over a very long period, the Commission did not make a manifest error of assessment by considering that, even taking into account a longer period, the net effects on possible revenue beyond 40 years would probably be limited. As the Commission submits in its defence, in order to guard against the risks inherent in investments lasting beyond 40 years, an investor would probably have required a higher return, which would have had the effect of increasing the WACC and, consequently, of reducing the value of discounted future revenue. 186 As regards the arguments of the applicants, ECSA, Trelleborg Hamn and VDR that, in essence, the Commission made a manifest error of assessment in that it used a period of 40 years to calculate the IRR and the funding gap, whereas a period of 50 years was used in the Incentive studies for the assessment of the socioeconomic return, a distinction must be drawn between the socioeconomic return of a project and parameters such as the IRR and the funding gap, which relate solely to the financial evaluation of a project. First, it should be noted, as the main parties submit, that the socioeconomic return is the result of a socioeconomic analysis of a project, carried out in order to assess the benefits of a project for society, with the result that account is taken, in addition to the financial parameters, of the positive and negative externalities of a project. Second, it should be noted that, as the main parties submit, the IRR and the funding gap are parameters, determined solely on the basis of the cash flows generated by the project, which enable an investor to assess whether it is appropriate to invest in a project. In view of the differences between the socioeconomic analysis and the financial analysis of a project, the fact that the period used to assess the benefits of the project for society is longer than that used to assess its financial feasibility cannot render the results of each of those analyses implausible. 187 As regards the applicants’ argument that the period of 40 years is incorrect on the ground that the Incentive studies show that, after a period of 50 years, the Fixed Link would still have a residual value of EUR 11.7 billion or a high capital value, so that, at the end of a period of 40 years, additional revenue could be generated or the sale of the tunnel could generate a profit, it must be stated that those studies do not refer to such a residual value. In response to the Court’s request, at the hearing, for clarification in that regard, Trelleborg Hamn argued that it was a residual value of DKK 11.7 billion and not EUR 11.7 billion, based on Femern’s financial analysis of February 2016. It must be noted that the passage of that financial analysis referred to by that intervener concerns stress tests and the finding that the project could bear additional costs of DKK 11.7 billion. Consequently, it must be held that the argument as to a residual value of DKK 11.7 billion after a period of 50 years is not supported by any evidence. Moreover, in order to justify a high residual value equivalent to the construction costs, reference is made to the handbook for socioeconomic assessment in the field of transport, drawn up in March 2015 by the Danish Ministry of Transport. It must also be stated that the applicants, VDR, ECSA and Trelleborg Hamn have not explained why a supposed high residual value after 50 years, determined in the context of a socioeconomic analysis, would mean that the Commission made a manifest error of assessment in using, in the financial analysis of a project, a period of 40 years to calculate the IRR and the funding gap. In particular, no information is provided to indicate that a market investor would take into account the residual value after an operational period of 40 or 50 years in order to determine the minimum return that would be required. In that regard, it should be noted that it is apparent from recitals 337 and 338 of the contested decision that, even over a period of 40 years, the level of uncertainty may constitute a difficulty for determining certain components of the WACC, in particular the risk-free rate. Therefore, over a period beyond 40 years, the even higher level of uncertainty would probably have made the WACC determination too approximate to reflect properly the cost of financing the project on the market. 188 It follows from the foregoing considerations that the applicants, FSS, VDR, ECSA and Trelleborg Hamn have not established that the Commission made a manifest error of assessment in relying on a period of 40 years to calculate the project’s IRR and funding gap. 189 Therefore, there is no longer any need to rule on the arguments challenging the calculation of the IRR that was made until 2100 as a precautionary measure. 190 Accordingly, the complaint challenging the periods used for the calculation of the IRR (necessity of the aid) and for the calculation of the funding gap (proportionality of the aid) must be rejected. 191 In the light of the foregoing considerations, the second part of the second plea must be rejected in its entirety. 3. The third part, alleging that the Commission was wrong to conclude that the aid was proportionate 192 In the third part of the second plea, the applicants raise three complaints, challenging, first, the temporal limitation of the aid, second, the funding gap and, third, the aid amount. (a) The first complaint, challenging the temporal limitation of the aid 193 The applicants, ECSA, Trelleborg Hamn and VDR consider that the Commission made a manifest error of assessment with regard to the proportionality of the aid at issue, on the ground that the aid is not limited in time and, in any event, the period of 16 years after the opening of the Fixed Link, used in the contested decision, is too long. 194 The Commission, supported by the Kingdom of Denmark, disputes that line of argument. 195 In that regard, it should be noted that it is apparent from paragraph 36 of the IPCEI Communication that the choice of the aid instrument must be made with a view to the market failure or other important systemic failures which it seeks to address, and that, where the underlying problem is lack of access to finance, Member States should normally resort to aid in the form of liquidity support, such as a loan or guarantee. With regard to aid in the form of a loan or guarantee, footnote 27 to paragraph 36 of the IPCEI Communication states that aid in the form of guarantees must be limited in time, and aid in the form of loans must be subject to repayment periods. 196 In the present case, in recital 348 of the contested decision, the Commission stated that the Danish authorities had ensured that Femern would not adopt State loans and State guarantees, which, together, would exceed a maximum guaranteed amount of DKK 69.3 billion (approximately EUR 9.3 billion), and that those loans and guarantees are strictly limited to the planning and construction costs of the Fixed Link. In addition, according to the alternative funding gap model, submitted by the Danish authorities during the formal investigation procedure, the Commission found, in recital 349 of the contested decision, that, 16 years after the start of operation, all loans with a State guarantee would be terminated and all State loans obtained would be repaid. According to the Commission, as is apparent from recital 350 of the contested decision, the resulting aid is equal to the funding gap of DKK 12.046 billion (approximately EUR 1.615 billion). Moreover, it is apparent from recital 351 of the contested decision that, since it cannot be ruled out that the funding gap may be overestimated as a result of the inclusion of a reserve budget, the Danish authorities will have to recalculate the funding gap at the latest five years after the start of operation, and that, if the funding gap were below what was anticipated, the maximum guaranteed amount would be reduced to DKK 66.1 billion (approximately EUR 8.9 billion) and the maximum guarantee period would be reduced to 11 years from the start of operation. 197 In the first place, as regards the arguments that the duration of the aid is not limited in time, first, the Court must reject the argument of the applicants, ECSA, Trelleborg Hamn and VDR that, in essence, the Commission provided no indication as to the point in time when the aid was granted. As the Commission submits, the dates on which the three individual aids were successively granted to Femern are set out in recital 259 of the contested decision. In addition, such an argument is irrelevant for the purpose of claiming that the Commission disregarded the requirement under paragraph 36 of the IPCEI Communication, referred to in paragraph 195 above, according to which aid in the form of guarantees must be limited in time and aid in the form of loans must be subject to repayment periods. Contrary to what the applicants claim, the IPCEI Communication does not require precise dates to be determined, and consequently it is not necessary to know precisely the point in time when the aid was granted. 198 Second, as regards the applicants’ argument that, in essence, the aid is not limited in time on the ground that it is not possible to determine the end date of the aid because the date upon which the Fixed Link will be opened is uncertain, it must be noted that the Commission ensured, in recitals 348 to 351 of the contested decision, that temporal limits would be set for the grant of State loans and State guarantees. 199 As stated in recital 349 of the contested decision, all loans with a guarantee must have been terminated at the latest 16 years after the start of operation of the Fixed Link and all State loans must have been repaid, and no guarantee will be provided after the actual debt is repaid if the repayment period of that debt is less than 16 years. 200 Moreover, the State loans and State guarantees are strictly limited to financing the costs of planning and constructing the Fixed Link and the Danish authorities are not authorised to grant Femern such loans and guarantees for an amount exceeding the maximum guaranteed amount of DKK 69.3 billion (approximately EUR 9.3 billion), and that amount also includes interest on the debt taken on to finance the planning and construction of the Fixed Link. Therefore, as the Commission stated, any delays in the full opening of the Fixed Link would have the effect of increasing the debt taken on to finance the planning and construction of the Fixed Link, which is strictly capped by the maximum guaranteed amount and the repayment period of 16 years after the opening of the Fixed Link. It follows that, should Femern need, in order to finalise the construction of the Fixed Link, State loans or State guarantees for a combined amount that exceeds the maximum guaranteed amount, the Danish authorities would be required to notify such additional financing which would not be covered by the declaration of compatibility in the contested decision. It follows that the applicants cannot claim that it would be in Femern’s interest to delay the full operation of the Fixed Link in order to extend the duration of the aid. 201 In addition, it must be noted that, since the funding gap might be overestimated because of the inclusion of a reserve budget in the maximum guaranteed amount, the Commission required, in recital 351 of the contested decision, that the Danish authorities recalculate the funding gap at the latest five years after the start of operation of the Fixed Link. If the funding gap were to have been overestimated, the maximum guaranteed amount could be reduced to DKK 66.1 billion (approximately EUR 8.9 billion) and the maximum guaranteed period could be reduced to 11 years from the start of operation. 202 Contrary to what the applicants claim, the rules governing how the duration of the State loans and the State guarantees is limited in the contested decision does not disregard the grounds of the judgment of 13 December 2018, Scandlines Danmark and Scandlines Deutschland v Commission (T‑630/15, not published, EU:T:2018:942), because the end date of the aid is not sufficiently precise. 203 In that regard, it should be noted at the outset that, in the judgment of 13 December 2018, Scandlines Danmark and Scandlines Deutschland v Commission (T‑630/15, not published, EU:T:2018:942), the Court did not hold that the Commission had made a manifest error of assessment in the examination of the proportionality of the aid, but that it should have initiated the formal investigation procedure on account of serious difficulties in the assessment of the proportionality of the aid. In particular, as regards the duration of the guarantees, the Court considered that, in view of the partially indeterminate nature of their object and the extremely long and indeterminate, or indeed unforeseeable, duration of the debt repayment period, the Commission should have questioned the proportionality of the aid at issue. 204 It must be noted that the applicants misunderstand the scope of the incidental finding concerning the date of opening of the Fixed Link, made in paragraph 230 of the judgment of 13 December 2018, Scandlines Danmark and Scandlines Deutschland v Commission (T‑630/15, not published, EU:T:2018:942). It is true that the Court referred to the date of the opening of the Fixed Link as being uncertain. However, it follows from a reading of paragraphs 230 to 233 of that judgment that that incidental finding was only one of the factors taken into account in order to conclude, in circumstances differing from those of the present case, that the Commission should have initiated the formal investigation procedure. As regards the partially indeterminate nature of the object of the guarantees, the Court stated that the guarantees at issue covered the debt taken on for the planning, construction and operation of the Fixed Link, but that those guarantees did not relate to a precise cost. As regards the extremely long and indeterminate, or indeed unforeseeable, debt repayment period, the Court stated that the Danish authorities could grant new guarantees for a period of 55 years from the date on which the Fixed Link is opened. Thus, the Court found that the effect of the guarantees extended well beyond the 55-year period from the opening of the Fixed Link, namely until the loans with a State guarantee are repaid. 205 It must be stated that the detailed rules for limiting the duration of the State loans and the State guarantees, as defined in the contested decision, cannot be compared to those which governed the grant of guarantees in the 2015 Construction Decision. As is apparent from recitals 348 to 351 of the contested decision, the Commission ensured that the object of the State loans and the State guarantees would be strictly limited, including as regards the maximum amount of debt that could be guaranteed. It is also required that, at the latest 16 years after the start of operation of the Fixed Link, all loans with a guarantee must be terminated and all State loans repaid. Moreover, should the funding gap have been overestimated, both the maximum guaranteed amount and the repayment period of the loans and guarantees are to be reduced. 206 It follows that the applicants cannot complain that the Commission disregarded the requirement under paragraph 36 of the IPCEI Communication that the aid be limited in time. 207 In the second place, it is necessary to examine whether, as the applicants, ECSA, Trelleborg Hamn and VDR claim, the Commission made a manifest error of assessment on the ground that the 16-year period from the opening of the Fixed Link is too long in that it goes beyond the point in time when Femern will be able, on the basis of its cash flow, to finance itself on the market, with the result that, beyond that point in time, the aid constitutes operating aid that is incompatible with the internal market. 208 It should be noted that that line of argument is based on an isolated reading of paragraph 242 of the judgment of 13 December 2018, Scandlines Danmark and Scandlines Deutschland v Commission (T‑630/15, not published, EU:T:2018:942), in which the Court held that the aid should expire at the point in time when the beneficiary would be able, on the basis of its cash flow, to borrow on the open market without the support of State guarantees or State loans. In that regard, the Court stated that that point was normally reached when the amount of the beneficiary’s debt had reached a level at which its income was likely to exceed operating costs and debt repayments under normal market conditions, and therefore before the debt had been repaid in full. Therefore, according to the Court, aid in excess of that level could be regarded as operating aid. 209 Paragraph 242 of the judgment of 13 December 2018, Scandlines Danmark and Scandlines Deutschland v Commission (T‑630/15, not published, EU:T:2018:942), cannot be read or interpreted independently of the context in which that case was brought before the Court, namely, as follows from paragraph 240 of that judgment, the context of the measures at issue granted to Femern which covered not only the debt associated with the planning and construction of the Fixed Link, but also the debt relating to its operation. Therefore, in paragraph 241 of that judgment, the Court held that, as the aid at issue covered the operating costs of the Fixed Link, it cannot be ruled out that, to some extent, it may constitute operating aid which is intended to release an undertaking from the costs which it would normally have to bear in the day-to-day management of its activities, which is why the Court laid down the criterion relied on by the applicants, ECSA, Trelleborg Hamn and VDR. 210 It must be stated that, unlike the 2015 Construction Decision which the Court annulled by the judgment of 13 December 2018, Scandlines Danmark and Scandlines Deutschland v Commission (T‑630/15, not published, EU:T:2018:942), it is apparent in particular from recital 348 of the contested decision that the State loans and State guarantees are strictly limited to the financing needed for the costs incurred during the phases of planning and constructing the Fixed Link. It follows that, in the absence of loans or guarantees capable of covering operating costs, the Commission was not required to limit the duration of the aid to the point in time when the beneficiary would be able, on the basis of its cash flow, to borrow on the competitive market without having State guarantees or loans. 211 In any event, the applicants, ECSA, Trelleborg Hamn and VDR have not adduced any evidence to establish that the 16-year limit from the opening of the Fixed Link is manifestly incorrect. The applicants have merely submitted that the operating revenue of the entities responsible for the construction and operation of the Great Belt and Øresund Belt fixed links exceeded the amount of the operating costs and debt repayment costs from the fourth or fifth year from the opening of those links. Apart from the fact that that assertion is not supported by probative evidence, the applicants have also failed to demonstrate that Femern is in a situation that is comparable to that of the entities responsible for the construction and operation of the Great Belt and Øresund Belt fixed links, in particular as regards the remuneration required for the State loans and State guarantees or the fact that the entities responsible for those links were able to receive State guarantees capable of covering operating costs. 212 It must therefore be held that the applicants, ECSA, Trelleborg Hamn and VDR have not demonstrated that the Commission made a manifest error of assessment in limiting the duration of the aid to a period of 16 years from the opening of the Fixed Link. 213 Accordingly, the first complaint, challenging the temporal limitation of the aid, must be rejected. (b) The second complaint, challenging the funding gap 214 The second complaint in the third part of the second plea is subdivided into three sub-complaints, challenging, first, the revenues taken into account in the calculation of the funding gap, second, the costs taken into account in the calculation of the funding gap and, third, the period used for the purposes of calculating the funding gap. 215 Since the third sub-complaint has already been examined in paragraphs 168 to 190 above, in the context of the third complaint in the second part of the second plea, the merits of the first and second sub-complaints remain to be examined. (1) The first sub-complaint, challenging the revenue 216 The applicants, DFA and Rederi Nordö-Link submit that, for the calculation of the funding gap, the Commission underestimated Femern’s revenues in order to increase artificially the funding gap. 217 The Commission, supported by the Kingdom of Denmark, disputes that line of argument. 218 In the present case, as regards the revenues from the Fixed Link, the Commission considered, in recital 322 of the contested decision, that the road traffic forecasts were reasonable, in particular in so far as those forecasts take into account redistribution of traffic linked to the reduction of the Great Belt fixed link toll and continued competition from ferry services. In that regard, it stated that a reasonable investor would, in its financial analysis, take into account a continued ferry service, and considers a one-hour ferry service to be appropriate. 219 In addition, in recital 323 of the contested decision, concerning the assumed prices, the Commission stated that operating revenues largely exceeded operating costs and that prices could not be required to compensate all the costs, including construction costs. However, it stated that the prices assumed in the funding gap model could not be artificially low. In the present case, it observed that the Danish legislation had laid down the principle that the price level for road traffic was expected to be at the level of the ferry prices for Rødby-Puttgarden in 2007, adjusted by the general increase in prices up to the time of opening. In that regard, the Commission stated that the traffic forecasts had been developed on the basis of those prices and that the establishment of a differentiated price structure would have a limited effect on revenues. The Commission therefore considered that the assumed road traffic revenues were plausible and appropriate. As regards railway revenues, in recital 324 of the contested decision, the Commission considered that the basis for the calculation of those revenues was reasonable. 220 It must be stated that, by the present sub-complaint, the applicants, DFA and Rederi Nordö-Link merely dispute the fact that, in order to find that road traffic revenues could be regarded as plausible and appropriate, the Commission accepted the assumption of prices at the level of the ferry prices for Rødby-Puttgarden in 2007, adjusted for inflation. 221 In that regard, it must be noted that, according to paragraph 31 of the IPCEI Communication, the funding gap refers to the difference between the positive and negative cash flows over the lifetime of the investment, discounted to their current value on the basis of an appropriate discount factor reflecting the rate of return necessary for the beneficiary to carry out the project notably in view of the risks involved. 222 In addition, since the funding gap is intended to determine the extent to which the project could be financed under market conditions, in the assessment of revenues, the Commission, DFA and Rederi Nordö-Link rightly consider that account must be taken of the conduct, on the market, of a private investor who as far as possible would seek to ensure that revenue is established at a level that would enable investment costs to be recovered as much as possible. 223 It is in the light of those considerations that it is necessary to examine the arguments raised by the applicants, DFA and Rederi Nordö-Link. 224 First, as regards the applicants’ argument that, in essence, the Commission made a manifest error of assessment in accepting that Femern’s revenues did not compensate all of its costs, including the costs of constructing the Fixed Link, it should be noted that paragraph 31 of the IPCEI Communication cannot be interpreted as requiring that the revenues cover all of the costs incurred by the aid beneficiary. As the Commission stated in recital 323 of the contested decision, if revenues were required to be set at a level that would cover the full construction and operating costs, there would be no funding gap, with the result that no aid could be authorised even though the aid was necessary for the investment project to be carried out. 225 Furthermore, as the Commission rightly states, the fact that prices are higher does not automatically lead to an increase in revenue because of the elasticity of demand in relation to price. In that regard, it must be noted that the applicants, DFA and Rederi Nordö-Link do not dispute the finding made in recital 323 of the contested decision to the effect that it is apparent from the 2016 financial analysis that a differentiated price structure would have only a relatively limited impact on overall revenues. 226 Moreover, the applicants acknowledge in their reply that higher prices do not automatically lead to an increase in revenues because of competition from other operators on the market. Contrary to what the applicants claim, that does not mean that the economic model chosen for the Fixed Link is inappropriate, but confirms that the grant of aid is necessary for such a project to be carried out. 227 Second, it must be stated that the applicants, DFA and Rederi Nordö-Link have not adduced any evidence to establish that it would have been possible to achieve higher revenues by setting higher prices for road traffic. 228 It should be noted, first of all, that the argument put forward by DFA and Rederi Nordö-Link that, in essence, the prices for the use of the Fixed Link should be higher than the prices for ferry services on the route between Rødby and Puttgarden on the ground that the Fixed Link provides a service that is superior to those provided by the ferry operators is not supported by any evidence. Those interveners have not referred to any evidence relating to the prices charged by the current ferry operator on the route between Rødby and Puttgarden. Therefore, DFA and Rederi Nordö-Link cannot claim that the prices for the use of the Fixed Link are in fact equal to or lower than those charged by the current ferry operator on that route. 229 Next, it must be stated that the example of the tariffs charged by Eurotunnel, relied on by DFA and Rederi Nordö-Link, is not supported by any evidence. Furthermore, in so far as it concerns the Channel Tunnel fixed link, that example cannot be relevant, since it is apparent from the information in the file that that fixed link is intended only for railway traffic. It must be noted that neither the applicants nor those interveners dispute the Commission’s finding in recital 324 of the contested decision that the basis for the calculation of the railway operating revenues is reasonable. 230 Lastly, as regards the example of the Rio-Antirrio (Greece) bridge, the fact that the prices for road traffic over the fixed link are higher than those for ferry services cannot be relevant where there are no contextual factors capable of establishing that that fixed link’s situation is, at least to some extent, comparable to the situation of the Fehmarn Belt fixed link. In the absence of data relating to the construction costs, of information concerning the way in which the Rio-Antirrio bridge is financed or of any price framework set by the public authorities for use of that fixed link, no conclusion can be drawn from the difference between the prices charged for road traffic using that bridge and the prices envisaged for use of the road part of the Fixed Link. 231 Third, as regards the argument put forward by DFA and Rederi Nordö-Link that, in essence, the Commission cannot authorise aid where the beneficiary’s revenues are lower than its costs, to the detriment of its competitors, it should be noted that taking into account the negative effects of aid on competitors is irrelevant for the purposes of assessing the funding gap. It follows that that argument is ineffective. In any event, such an argument is unfounded for the same reasons as those set out in paragraphs 224 and 225 above. 232 Fourth, the argument put forward by DFA at the hearing, by which the Commission is criticised for having accepted that revenues are not determined by taking into account the prospect of maximising profits, cannot, in any event, succeed. 233 That line of argument based on the finding that Femern cannot itself determine the tariffs for use of the Fixed Link on the ground that the latter is not intended to be operated in order to produce a maximum return, but addresses concerns relating in particular to transport policy, cannot suffice to establish that the Commission made a manifest error of assessment where there is no other element from which it could be concluded that the revenues used to calculate the funding gap are implausible. 234 Moreover, as the Commission stated at the hearing, where the public authorities decide to regulate charges for use of an infrastructure for the purposes of implementing transport policy in order to take account of the price that future users would be prepared to pay, a private operator who is responsible for the operation of such an infrastructure, as with certain motorways the prices of which are regulated, cannot disregard, in the assessment of revenues for the calculation of the funding gap, the fact that prices are regulated by the public authorities. 235 It follows from the foregoing considerations that the applicants, DFA and Rederi Nordö-Link have not demonstrated that the Commission made a manifest error of assessment consisting in an underestimation of the revenues taken into account in the calculation of the funding gap. 236 Accordingly, the first sub-complaint, challenging the revenues taken into account in the calculation of the funding gap, must be rejected. (2) The second sub-complaint, challenging the costs 237 The applicants, DFA and Rederi Nordö-Link submit that the Commission, for the calculation of the funding gap, erred by taking into account the costs of refinancing loans. 238 The Commission, supported by the Kingdom of Denmark, disputes that line of argument. 239 In that regard, it should be noted that, according to settled case-law, operating aid intended to maintain the status quo or to release an undertaking from costs which it would normally have had to bear in its day-to-day management or normal activities cannot, in principle, be considered compatible with the internal market (see, to that effect and by analogy, judgments of 6 November 1990, Italy v Commission, C‑86/89, EU:C:1990:373, paragraph 18; of 22 September 2020, Austria v Commission, C‑594/18 P, EU:C:2020:742, paragraph 119; and of 12 July 2018, Austria v Commission, T‑356/15, EU:T:2018:439, paragraph 579). 240 In addition, as stated in paragraph 221 above, it is apparent from paragraph 31 of the IPCEI Communication that the maximum aid level will be determined with regard to the identified funding gap in relation to the eligible costs. As regards eligible costs under aid measures for an important project of common European interest, point (h) of the annex to the IPCEI Communication specifies that costs other than those referred to in points (a) to (g) of that annex may be accepted if justified and where they are inextricably linked to the realisation of the project, to the exclusion of operating costs not covered by point (g), which concerns aid to a project of first industrial deployment. 241 In the present case, first, in recital 320 of the contested decision, the Commission stated that the eligible costs were restricted to the project’s construction costs, which include planning costs and costs for promotion, marketing and information. Second, in recitals 325 and 326 of the contested decision, it stated that the question of whether operating costs could be included in the calculation of the funding gap differed from the question of whether operating aid was granted. It indicated that paragraph 31 of the IPCEI Communication referred to the difference between positive and negative cash flows when defining the funding gap, and that it is inherent in the logic of investment decision-making to compare, ex ante, investment costs against future operating revenues and costs. In that regard, the Commission also stated that investors typically did not take a positive investment decision as long as that comparison resulted in a gap or a negative net present value (NPV). Furthermore, the Commission stated that that method was confirmed by the compatibility criteria set out in Commission Regulation (EU) No 651/2014 of 17 June 2014 declaring certain categories of aid compatible with the internal market in application of Articles 107 and 108 [TFEU] (OJ 2014 L 187, p. 1). 242 In the first place, it should be noted that the pleadings of the applicants, DFA and Rederi Nordö-Link do not contain any substantiated arguments in support of the assertion that the Commission erred in including operating costs in the negative cash flows of the investment project. In particular, no argument is expressly raised to call into question the merits of the Commission’s findings in recitals 325 and 326 of the contested decision. 243 When questioned by the Court at the hearing in order to clarify their arguments, the applicants stated that the judgment of 19 September 2018, HH Ferries and Others v Commission (T‑68/15, EU:T:2018:563), prohibited the inclusion of operating costs in the funding gap. The applicants also stated that that prohibition followed from the annex to the IPCEI Communication, which excludes operating costs from the eligible costs. In addition, Rederi Nordö-Link submits that taking into account operating costs in the funding gap amounts to authorising operating aid and to artificially increasing the funding gap. 244 First, it should be noted that, as the Commission submits, the inclusion of operating costs in the negative cash flows of the investment project in order to calculate the funding gap does not result in the grant of operating aid. As is apparent from recital 323 of the contested decision, the operating revenues which, correlatively, should also be taken into account under the positive cash flows largely exceed operating costs. Therefore, Rederi Nordö-Link cannot claim that the inclusion of operating costs in the funding gap would result in the grant of operating aid. 245 Second, it must be stated that the argument put forward by DFA and Rederi Nordö-Link that the inclusion of operating costs in the calculation of the funding gap has the effect of artificially increasing that gap cannot suffice to conclude that the Commission disregarded paragraph 31 of the IPCEI Communication by including operating costs in the calculation of the funding gap. As stated in paragraph 241 above, the Commission explained, in recital 326 of the contested decision, the reasons why the operating costs formed an integral part of the funding gap analysis. It follows that, in the absence of evidence capable of calling into question the validity of those explanations, that argument cannot succeed. 246 As regards the judgment of 19 September 2018, HH Ferries and Others v Commission (T‑68/15, EU:T:2018:563), the Court was not called upon to interpret the concept of ‘funding gap’ within the meaning of paragraph 31 of the IPCEI Communication. It follows that the applicants are not justified in claiming that that judgment could be interpreted as prohibiting the inclusion of operating costs in the calculation of the funding gap. 247 Consequently, it must be held that the applicants, DFA and Rederi Nordö-Link have not demonstrated that the Commission’s calculation of the funding gap disregarded paragraph 31 of the IPCEI Communication as a result of the inclusion of operating costs in the negative cash flows of the investment project. 248 In the second place, it should be noted that the applicants, DFA and Rederi Nordö-Link also rely on the judgment of 19 September 2018, HH Ferries and Others v Commission (T‑68/15, EU:T:2018:563), in order to claim that the Commission erred in finding, in recital 294 of the contested decision, that the guarantees for refinanced loans relating to planning and construction costs did not constitute operating aid. 249 In that regard, it should be noted that it follows from the judgment of 19 September 2018, HH Ferries and Others v Commission (T‑68/15, EU:T:2018:563), and in particular from paragraphs 107, 108 and 111 thereof, that it cannot be ruled out that State guarantees covering the operating costs of the beneficiary of the aid may constitute operating aid. However, it does not follow that guarantees such as those granted for refinanced loans relating to planning and construction costs, and not operating costs, constitute such operating aid. 250 It must be stated that, as is apparent from recitals 292 and 293 of the contested decision, the Danish authorities limited the provision of State loans and State guarantees to the financing needed for the costs incurred during the planning and construction phases, excluding operating costs. In the light of that limitation, the Commission was entitled to take the view that the aid in question was investment aid, and that conclusion cannot be called into question, as the applicants, DFA and Rederi Nordö-Link claim, by the findings made by the Court in the judgment of 19 September 2018, HH Ferries and Others v Commission (T‑68/15, EU:T:2018:563). 251 As regards the argument put forward by DFA and Rederi Nordö-Link that Femern benefits from operating aid on the ground that the aid measures in its favour may continue for a period of 16 years after the full opening of the Fixed Link, whereas that period goes beyond the point in time when that entity will be able, on the basis of its cash flows, to finance itself on the competitive market without aid, it should be noted that that argument overlaps with the argument already examined in paragraphs 208 to 212 above and must, therefore, be rejected for the same reasons. 252 In the light of the foregoing considerations, it must be held that the Commission did not err in finding that the refinancing of loans relating to the planning and construction costs did not constitute operating aid. 253 Accordingly, the second sub-complaint, challenging the costs taken into account in the calculation of the funding gap, must be rejected. (c) The third complaint, challenging the aid amount 254 The applicants, FSS, DFA and Rederi Nordö-Link submit that the Commission made manifest errors of assessment in the calculation of the aid amount. 255 The Commission, supported by the Kingdom of Denmark, disputes that line of argument. 256 In the first place, it is necessary to ascertain whether, as the applicants and DFA submit, since Femern does not have the ability to repay its loans, as, they claim, is apparent from the 2001 commercial interest report, in accordance with point 4.1 of the Guarantee Notice, the aid amount should correspond, contrary to what the Commission found, to the value of all loans covered by the State guarantees and of all State loans. 257 In that regard, it should be noted that, according to point (a) of the third paragraph of point 4.1 of the Guarantee Notice, ‘for companies in difficulty, a market guarantor, if any, would, at the time the guarantee is granted charge a high premium given the expected rate of default[; if] the likelihood that the borrower will not be able to repay the loan becomes particularly high, this market rate may not exist and in exceptional circumstances the aid element of the guarantee may turn out to be as high as the amount effectively covered by that guarantee’. 258 Thus, it follows from point (a) of the third paragraph of point 4.1 of the Guarantee Notice that it is only where a company is in difficulty and in exceptional circumstances that the aid element of a guarantee is equivalent to the total amount of the loans covered by the guarantee. Given the far-reaching implications of such an approach, the possibility of calculating the benefit from a State guarantee as being equal to the entire amount of the guaranteed loan cannot be justified merely because the beneficiary undertaking is in difficulty. Thus, the Commission may use that approach only in exceptional circumstances and only if the company in difficulty is unable, through its own resources, to repay the loan covered by the guarantee. 259 In the present case, in recital 346 of the contested decision, the Commission found that the aid element did not have to equal the full amounts covered by the State loans and the loans with State guarantees, on the ground that Femern’s situation did not come under the exceptional circumstances referred to in point (a) of the third paragraph of point 4.1 of the Guarantee Notice. 260 It must be stated that the applicants and DFA have not adduced any evidence to support the view that Femern is an undertaking in difficulty within the meaning of the Guidelines on State aid for rescuing and restructuring non-financial undertakings in difficulty, or that that undertaking would be unable to repay the loans covered by the debt taken on to cover the planning and construction costs. 261 To support their line of argument, the applicants and DFA rely solely on the 2001 commercial interest report, from which it is apparent that the Fixed Link project could not be carried out by the private sector without substantial public support. While such a factor may be relevant for determining whether the State loans and the State guarantees granted to Femern constitute aid within the meaning of Article 107(1) TFEU or to establish that such a project cannot be carried out without aid, it is not sufficient to establish that Femern is an undertaking in difficulty which is unable to repay, at the stage of the Fixed Link being in operation, the debt taken on to cover the planning and construction costs. 262 Accordingly, it must be held that the applicants and DFA have not demonstrated that the Commission erred in finding that the aid amount cannot equal the full amounts covered by the State loans and loans with State guarantees. 263 In the second place, as regards the applicants’ argument that Femern is not paying the premium set out in recitals 342 and 343 of the contested decision, it should be noted that, in support of that argument, the applicants rely only on elements subsequent to the adoption of the contested decision, namely a statement by the Danish Minister for Transport of 24 April 2020 and a proposal of 5 December 2020 regarding an amendment to the 2015 Construction Law. In that regard, it must be noted that, according to settled case-law, the legality of a Commission decision on State aid is to be assessed in the light of the information available to the Commission when that decision was adopted (judgments of 10 July 1986, Belgium v Commission, 234/84, EU:C:1986:302, paragraph 16, and of 12 July 2018, Austria v Commission, T‑356/15, EU:T:2018:439, paragraph 333). It follows that that argument by the applicants cannot call into question the legality of the contested decision. 264 In the third place, it is necessary to examine the line of argument by which the applicants, FSS and Rederi Nordö-Link submit, in essence, that it is impossible for the result of the calculation of the aid amount to correspond to that of the funding gap. 265 In the present case, in recital 342 of the contested decision, the Commission first of all set out the methodology used by the Danish authorities to calculate the aid amount. The Commission stated that that method was based on an approach similar to that set out in point 4.2 of the Guarantee Notice, which provides that, where no market price for the guarantee is available, ‘the aid element should be calculated in the same way as the grant equivalent of a soft loan, namely as the difference between the specific market interest rate this company would have borne without the guarantee and the interest rate obtained by means of the State guarantee after any premiums paid have been taken into account’. The Commission also stated that the Danish authorities, when calculating the aid amount, had not distinguished between the value of aid associated with the State loans and the value of aid associated with the State guarantees, and therefore the aid elements resulting from the State guarantees and from the State loans were therefore calculated in the same way. In addition, the Commission stated that the Danish authorities had determined the yearly aid element by taking the difference between the WACC that a market investor would be expected to require (5.59%) and the risk-free rate (1.5%) adjusted for the premium that Femern was required to pay to the Danish State, multiplied by the sum of outstanding guaranteed debt and outstanding State debt. The Commission set out, in recitals 343 to 345 of the contested decision, the reasons why it considered that method to be appropriate. 266 Next, in recital 347 of the contested decision, it explained the components of Femern’s effective debt, namely that it reflects the accumulated amount of money spent to cover planning and construction costs, interest payments and own costs, from which the amount of paid-in equity and financing received from the European Union must be deducted. It also stated that Femern’s net debt built up during the construction phase was expected to reach its maximum in the first year of operation and that that net debt will gradually decrease during the operational phase with the free cash flow of the project. In recitals 348 and 349 of the contested decision, the Commission indicated the other parameters taken into account in the calculation of the aid amount, namely the maximum guaranteed amount and the maximum guaranteed period. On the basis of those elements, in recital 350 of the contested decision, the Commission calculated the aid amount as being DKK 12.046 billion (approximately EUR 1.615 billion). In that regard, it stated that the aid was the discounted value using the WACC as the discount rate. It also stated that that calculation included capital injections and aid associated with State loans and State guarantees, and that the calculation of the aid amount was based upon an increase of the premium from 0.15% to 2%. 267 It should be noted that, in their pleadings, the applicants, FSS and Rederi Nordö-Link do not dispute either the methodology used to calculate the aid amount or the parameters used to calculate the aid amount, namely the maximum guaranteed amount, the WACC and the risk-free rate adjusted according to the premium. Furthermore, as follows from paragraph 212 above, the applicants have not demonstrated that the Commission made a manifest error of assessment in limiting the duration of the aid to a period of 16 years from the opening of the Fixed Link. The applicants, FSS and Rederi Nordö-Link merely claim that, because of differences in the manner in which the funding gap and the aid amount are calculated, it is mathematically impossible to achieve the same result. 268 It must be noted that, in recital 318 of the contested decision, the Commission explained the relationship between the aid amount and the funding gap by stating that ‘the aid amount is directly linked to the underlying assumptions of the funding gap model, not only as a consequence of the limitation of the aid amount to the funding gap level but also due to the fact that the level of the debt, and thus the level of the aid amount, depends on factors such as the overall construction cost and the interest rate assumed’. 269 Furthermore, as the Commission has submitted, since the funding gap is the funding which is missing for the investment to be carried out, it must be held that it is not unusual for the amount of aid to correspond to that of the funding gap. 270 It follows that the applicants, FSS and Rederi Nordö-Link are not justified in claiming that it is impossible for the aid amount to correspond to the amount of the funding gap. 271 As regards Rederi Nordö-Link’s complaint that aid amount was calculated in order to ensure that that amount was the same as the funding gap, it should be noted that the Danish authorities cannot be criticised for having calibrated the various parameters used to calculate the aid amount, in particular the maximum guaranteed amount and the premium applicable to the risk-free rate and the duration of the aid, in order to ensure that the aid amount corresponded to the funding gap which constitutes the maximum aid ceiling that may be authorised. 272 As regards FSS’s argument which, in essence, criticises the Commission for not having calculated the aid amount, it must be noted that the fact that the details of that calculation do not appear in the contested decision does not mean that the Commission did not calculate the aid amount in order to arrive at the result indicated in recital 350 of the contested decision. 273 Furthermore, it must be noted that the statement of reasons for a measure adopted by the Commission must enable the persons concerned to ascertain the reasons for the measure so that they can defend their rights and ascertain whether or not the measure is well founded and so that the EU judicature can exercise its power of review. It is not necessary for the statement of reasons to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgments of 15 June 2005, Corsica Ferries France v Commission, T‑349/03, EU:T:2005:221, paragraphs 62 and 63; of 16 October 2014, Eurallumina v Commission, T‑308/11, not published, EU:T:2014:894, paragraph 44; and of 6 May 2019, Scor v Commission, T‑135/17, not published, EU:T:2019:287, paragraph 80). In the present case, since, in recitals 342 to 350 of the contested decision, the Commission set out both the method used to calculate the aid and the parameters taken into account in order to calculate the aid amount, the Commission cannot be accused of having failed to comply with the obligation to state reasons. 274 In the fourth place, as regards the applicants’ argument that, in essence, Femern received an economic advantage not taken into account in the aid amount, on the ground that the construction and operation of the Fixed Link were awarded to it without a tendering procedure taking place, suffice it to note that the applicants have not set out the reasons why obtaining a right to construct and operate without a tendering procedure taking place is likely to increase the aid amount. It follows that, without it being necessary to rule on the admissibility of that argument raised for the first time in their observations on Rederi Nordö-Link’s statement in intervention, that argument must be rejected as unsubstantiated. 275 In the light of the foregoing considerations, the third complaint, challenging the aid amount, must be rejected. 276 Accordingly, the third part of the second plea must be rejected in its entirety. 4. The fourth part, challenging the analysis of the prevention of undue distortions of competition and the balancing test 277 The applicants, supported by FSS, DFA, Rederi Nordö-Link, ECSA, Trelleborg Hamn, Aktionsbündnis, NABU and VDR, submit that the Commission erred in concluding that the negative effects of the Fixed Link on competition were not capable of offsetting its positive effects. 278 The Commission, supported by the Kingdom of Denmark, disputes that line of argument. 279 In that regard, according to paragraph 41 of the IPCEI Communication, for the aid to be compatible with the internal market, the negative effects of the aid in terms of distortions of competition and impact on trade between Member States must be limited and outweighed by the positive effects in terms of contribution to the objective of the common European interest. Paragraph 42 of that communication states that, in the assessment of the negative effects of the aid, the Commission will focus its analysis on the foreseeable impact the aid may have on competition between undertakings in the product markets concerned, including up- or downstream markets, and on the risk of overcapacity. In addition, according to paragraph 43 of the IPCEI Communication, the Commission is required to assess the risk of market foreclosure and dominance, and projects involving the construction of an infrastructure must ensure open and non-discriminatory access to the infrastructure and non-discriminatory pricing. 280 In the present case, as regards the positive effects, in recital 359 of the contested decision, the Commission stated that the Fixed Link was aimed at promoting mobility, further integration and cultural exchange of people living on both sides of that link, and to improve the connection between the Nordic countries and central Europe for passengers as well as road and railway freight. In that regard, the Commission stated that expected benefits from the Fixed Link had been recognised at European level by including that link in the list of TEN-T priority projects. In addition, the Commission referred to the positive effects on certain economic sectors in the region, such as gas stations, retail, restaurants, hotels, amusement parks and railway and bus transport. The Commission also stated that the Fixed Link would also enhance the accessibility to railway transport with the possibility of there being a transfer of freight and passengers from road to rail. 281 As regards the negative effects, in recital 360 of the contested decision, the Commission stated that the opening of the Fixed Link would have a negative impact on ferry operators serving the Rødby and Puttgarden route, and on other routes, and on the activities of the ports used by those ferries. In that regard, the Commission considered that Femern’s power to influence the operation of the ferry services was limited on the ground that the aid was limited to the financing needed for the costs incurred during the phase relating to the planning and construction of the Fixed Link, with the funding gap as the upper limit. Therefore, the Commission considered that the main impact on the ferry operators’ services is created by the public authorities’ decision to construct the Fixed Link, providing an alternative to existing modes of transport, and that it is not for the Commission to call into question the choice made by the public authorities. 282 In addition, in recitals 361 to 363 of the contested decision, the Commission examined, in turn, the risk of overcapacity on the market, the risk of a dominant position and the general impact on competition and the risk of market foreclosure. 283 After stating that it was not for the Commission to assess the effects of the public authorities’ decision on the construction of the Fixed Link, after weighing up the negative and positive effects, in recital 365 of the contested decision, the Commission concluded that the aid measures in favour of Femern, as reduced following the revised notification that followed the Opening Decision, had only a limited effect on competition and trade that was offset by the positive effects in terms of contribution to the objective of common European interest. 284 In the first place, as regards the argument of the applicants, FSS, ECSA and Rederi Nordö-Link that the Commission failed to quantify the positive and negative effects of the aid for the purposes of assessing the seriousness of the distortion of competition, it should be noted that it is accepted that the consideration of the positive and negative effects of aid may be succinct (see, to that effect, judgment of 13 December 2018, Scandlines Danmark and Scandlines Deutschland v Commission, T‑630/15, not published, EU:T:2018:942, paragraph 255), or inferred implicitly from the examination of the effects of the aid on competition and trade where the negative effects of the aid are limited (see, to that effect, judgment of 9 June 2016, Magic Mountain Kletterhallen and Others v Commission, T‑162/13, not published, EU:T:2016:341, paragraph 110). 285 In addition, it must be noted that paragraphs 41 to 43 of the IPCEI Communication merely set out principles for the purposes of the examination of the weighing up of the positive and negative effects of the aid, but do not require those effects to be quantified. Therefore, the Commission cannot be criticised for not having assessed those positive and negative effects on the basis of quantitative factors taking into account the size of the beneficiary of the aid, its market share relative to its competitors and the size of the amount of aid granted. 286 Furthermore, as regards the decisions relied on by the applicants, Rederi Nordö-Link, Trelleborg Hamn and DFA, in which, according to those parties, the Commission carried out a detailed analysis of the distortion of competition for the purposes of weighing up the positive and negative effects, those decisions are manifestly irrelevant in the light of the case-law referred to in paragraph 134 above, especially since they concern texts other than those governing State aid intended to promote the completion of important projects of common European interest. 287 Accordingly, the Commission cannot be criticised for not having quantified the positive and negative effects of the aid for the purposes of assessing the seriousness of the distortion of competition. 288 In the second place, it is necessary to examine whether, as the applicants submit, the Commission made a manifest error of assessment in finding, in recital 360 of the contested decision, that Femern’s ability to undermine competition from ferries was limited by the fact that the aid was capped at the funding gap. 289 It should be noted that, as regards the negative effects of the Fixed Link on existing transport services and in particular on the activities of ferry service operators, the Commission, in recital 360 of the contested decision, drew a distinction between, on the one hand, the negative effects attributable to the public authorities’ decision to construct the Fixed Link, which offers an alternative to the existing modes of transport, and, on the other hand, the negative effects attributable to the aid measures granted to Femern. According to the Commission, when weighing up the positive and negative effects, it must confine itself to examining the negative effects of the aid measures granted to that undertaking. 290 In that regard, it must be noted that it has already been held that, in the context of the review of State aid, it is not for the Commission to call into question the public authorities’ choice to decide on the construction of an infrastructure that will provide an alternative to existing means of transport on the ground that such a project provides a solution which, on the whole, has positive results, even if the putting into service of that infrastructure would result in the disappearance of the existing modes of transport (see, to that effect, judgment of 13 December 2018, Scandlines Danmark and Scandlines Deutschland v Commission, T‑630/15, not published, EU:T:2018:942, paragraph 256). 291 Therefore, the Commission was entitled to consider that it could limit its examination to the negative effects of the aid measures granted to Femern. 292 As regards the negative effects of the grant of aid measures to Femern, the Commission found that the financing granted to Femern covered the costs of planning and constructing the Fixed Link up to the limit of the funding gap, that the amount of the fees for use of the Fixed Link was regulated by the public authorities and that the possibility for that undertaking to grant discounts was limited by the need to ensure sufficient revenues to pay for the operating costs and to repay the loans taken out to finance the planning and construction of the Fixed Link. Therefore, the Commission considered that Femern’s power to influence the operation of ferry services was limited and that the main negative effects resulted from the public authorities’ decision to construct the Fixed Link. 293 As regards the applicants’ argument that, in essence, the capping of aid at the level of the funding gap is irrelevant for the purpose of proving that the aid does not unduly distort competition on the ground that it is a factor taken into consideration at the stage of the examination of the proportionality of the aid, it must be noted that the need for a weighing of the expected positive effects in terms of realisation of the objectives set out in Article 107(3)(a) to (e) TFEU against the negative effects of aid in terms of distortion of competition and the effect on trade between Member States is no more than an expression of the principle of proportionality and the principle that the exemptions set out in Article 107(3) TFEU must be interpreted strictly (see, to that effect, judgment of 20 June 2019, a&o hostel and hotel Berlin v Commission, T‑578/17, not published, EU:T:2019:437, paragraph 124). 294 Furthermore, since the principle of proportionality seeks to limit aid to the minimum necessary so as to reduce distortions in the internal market, it must be held that the Commission is entitled to use, at the stage of weighing up the positive and negative effects of the aid measures, the findings made in the context of the examination of the proportionality of the aid. In the present case, the limitation of the aid amount to the funding gap of the investment project meant that the financing granted to Femern was limited to 27.3% of the eligible costs. Thus, where the examination of the proportionality of State aid and the examination of the weighing up of positive and negative effects are intrinsically linked, such a limitation of the aid amount is a relevant factor in finding that the negative effects of the aid measures are limited. 295 As regards the applicants’ argument by which, in essence, they claim that Femern could use the option which it has under Paragraph 42(3) of the 2015 Construction Law to grant discounts in order to set prices below those charged by ferry operators, it must be noted that that argument is purely hypothetical, particularly since, as the Commission stated, Femern is required to generate sufficient revenues not only to be able to pay its operating costs but also to repay the loans taken out to finance the planning and construction of the Fixed Link. Thus, if any discounts granted by Femern were to involve a significant reduction in its revenues, that undertaking might not be in a position to repay the State loans and the loans with a State guarantee within the periods laid down in recitals 349 and 351 of the contested decision. 296 In the third place, it is necessary to ascertain whether, as the applicants submit, the Commission made manifest errors of assessment in the examination of certain negative elements which, taken individually or together, are capable of offsetting the positive effects of the aid. 297 First, as regards the argument of the applicants, FSS, DFA, ECSA and VDR that the Commission incorrectly concluded that the aid would not have the effect of increasing overcapacity on the market for crossing the Fehmarn Belt, it must be noted that that argument is based on a misreading of the contested decision. 298 In recital 361 of the contested decision, the Commission merely referred to an argument that ‘Scandlines et al. further argued that the Fixed Link would develop much additional capacity to an already saturated market’ and merely observed that ‘the creation of an alternative to the existing services that is different from and considered superior by the Danish authorities cannot be equated to adding capacity to a saturated market’. 299 It cannot therefore be held that the Commission itself found that the market for crossing the Fehmarn Belt is saturated. 300 Moreover, it must be noted that the applicants, FSS, ECSA, DFA and VDR have not provided any evidence to substantiate the assertion that there is overcapacity on the market. Although the applicants rely on an average rate of use of ferry services of only 49%, they have not, however, adduced any probative evidence to support that assertion. In that regard, it must be stated that the mere reference to an identical assertion contained in observations submitted during the formal investigation procedure, which is also not supported by any probative documents, cannot constitute evidence. 301 In addition, as the Commission submits, it must be noted that neither the applicants nor FSS, ECSA, DFA and VDR put forward any substantiated arguments capable of calling into question the finding, in recital 361 of the contested decision, that the creation of an alternative to the existing services that is different from and considered superior, cannot be equated to adding capacity to a saturated market. It must be stated that their line of argument is based on the premiss, which is not supported by evidence, that there is overcapacity on the market. 302 Accordingly, the applicants and those interveners have not demonstrated that the Commission made a manifest error of assessment by finding that the Fixed Link would not lead to overcapacity on the market for services offered for crossing the Fehmarn Belt. 303 Second, it is necessary to ascertain whether, as the applicants claim, the Commission made a manifest error of assessment by taking insufficient account of the risk of a dominant position. 304 In the present case, in recital 362 of the contested decision, although the Commission accepted that it could not be excluded that Femern would acquire a dominant position on certain transport services on the Fehmarn Belt market, it nevertheless stated that the existence of a dominant position was not in itself contrary to EU law. In addition, after finding that Scandlines currently held a monopoly on the route between Rødby and Puttgarden, it considered that, if there were continued ferry services on that route, the Fixed Link would contribute to breaking that monopoly, which would create a more competitive market. 305 It must be noted that paragraph 43 of the IPCEI Communication merely states that the Commission will assess the risk of dominance, without providing details for cases in which aid is granted for an infrastructure construction project. In addition, it must be noted that, according to paragraph 41 of the IPCEI Communication, aid may be declared compatible with Article 107(3)(b) TFEU where its negative effects in terms of distortions of competition and impact on trade between Member States are limited and outweighed by the positive effects in terms of contribution to the objective of the common European interest. 306 Thus, contrary to what, in essence, the applicants claim, paragraph 43 of the IPCEI Communication cannot be interpreted as meaning that aid which is capable of contributing to the creation of a dominant position should systematically be regarded as having negative effects which necessarily offset the positive effects of an important project of common European interest, particularly since, in the present case, the risk of a dominant position is limited to the local market for transport services for crossing the Fehmarn Belt. 307 In that regard, it should be noted that neither the applicants nor the interveners in support of their claims dispute the positive effects of the Fixed Link identified in recital 359 of the contested decision. In that regard, the Commission found that the positive effects of the Fixed Link were not limited to the beneficiary of the aid or to the undertakings established in the Fehmarn Belt region, but extended more widely within the European Union in that the Fixed Link would improve the connection between the Nordic countries and central Europe for passengers and for road and railway freight, as well as accessibility to railway transport, thus contributing to the transfer of freight and passengers from road to rail. It follows that, as is apparent from recital 281 of the contested decision, the Fixed Link project, as an important project of common European interest, will contribute to improving the functioning of the internal market and strengthening economic and social cohesion. 308 In view of the fact that the positive effects of the Fixed Link are not limited to the economic operators in one Member State, but benefit other economic operators in the European Union more widely, the Commission was entitled, in the exercise of its broad discretion, to take the view that the risk of a dominant position on a local market for transport services was not capable of offsetting the positive effects of the Fixed Link in terms of a contribution to the objective of common European interest. 309 In addition, it is apparent from recital 362 of the contested decision that, on the market for transport services for crossing the Fehmarn Belt, namely on the route between Rødby and Puttgarden, the applicants currently hold a monopoly. Therefore, the Commission was entitled to find, without making a manifest error of assessment, that, if ferry services continued to operate on that route, the Fixed Link would strengthen competition on that market. 310 Furthermore, while it is true that Scandlines does not hold a monopoly on a geographic market extending beyond that of the route between Rødby and Puttgarden, as the Commission rightly argues, there is also no risk that Femern will hold a dominant position on a more extended geographic market. 311 Accordingly, the Commission did not make a manifest error of assessment in finding that the risk of Femern holding a dominant position did not mean that that negative effect of the aid in terms of distortion of competition offsets the positive effects of the project in terms of contribution to the objective of common European interest. 312 Third, it is necessary to ascertain whether the Commission made a manifest error of assessment in not finding that there was a risk of market foreclosure. 313 It should be noted that, by their line of argument, the applicants, ECSA, Trelleborg Hamn, Rederi Nordö Link and VDR do not dispute, as such, the findings in recital 363 of the contested decision relating to the absence of a risk of market foreclosure. In the present case, the Commission considered that there was no risk of market foreclosure, including on the up- and downstream markets, on the ground that the Fixed Link would be open to all users on an equal and non-discriminatory basis. It also found that the pricing structure would be non-discriminatory and in line with Directive 1999/62/EC of the European Parliament and of the Council of 17 June 1999 on the charging of heavy goods vehicles for the use of certain infrastructures (OJ 1999 L 187, p. 42) and with Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012 establishing a single European railway area (OJ 2012 L 343, p. 32). 314 By their line of argument, the applicants and those interveners complain that the Commission, in essence, failed to take account of a risk of price dumping. In that regard, it must be noted that that line of argument is essentially based on arguments similar to those raised in the first sub-complaint of the second complaint in the third part of the second plea, alleging a manifest error of assessment in the assessment of the funding gap revenues (see paragraphs 216 to 235 above). The applicants and those interveners complain that the Commission found that there was no risk of market foreclosure even though Femern’s prices were lower than its costs. 315 It must be noted that the applicants, ECSA, Rederi Nordö Link, Trelleborg Hamn and VDR have not explained why the authorisation of aid measures covering a limited part of the planning and construction costs of an infrastructure project would have the effect of foreclosing the market. In addition, as follows from paragraph 224 above, it cannot be required that Femern’s revenues should be established at a level that would cover all the planning, construction and operating costs on the ground that that would mean that no aid could be granted to Femern even though it is necessary for the completion of the project. In addition, as the Commission rightly submits, since Femern is required to generate sufficient revenue not only to cover its operating costs, but also to repay the debt taken on to cover the planning and construction costs, the risk that that undertaking might grant significant price discounts is necessarily limited. 316 As regards the applicants’ argument that Femern could use its dominant position to lower prices below its costs in order to foreclose the market, it must be noted that the amount of the fees for use of the Fixed Link is determined by the public authorities and that Femern has only a certain amount of leeway to grant some discounts. That undertaking is required to generate sufficient revenue not only to be able to pay its operating costs, but also to repay the loans taken out to finance the planning and construction of the Fixed Link. Therefore, if Femern were to grant some discounts, it would nevertheless have to ensure that the level of revenues remains sufficient to repay the State loans and the State guarantees within the periods specified in recitals 349 and 351 of the contested decision. 317 Moreover, the applicants cannot argue that Femern could drastically reduce prices in order to foreclose the market on the ground that, when the Danish authorities granted State aid for the Øresund Belt fixed link, the operator of that link significantly reduced the charges for road traffic. While it is true that the applicants have adduced evidence of a reduction in the amount of those charges compared with what was initially envisaged, they have not, however, adduced any evidence to support the conclusion that the situation of the operator of the Øresund Belt fixed link is comparable to that of Femern. In that regard, the Commission stated that, unlike the aid granted to the operator responsible for the Øresund Belt fixed link, in the present case the amount and duration of the measures granted to Femern were strictly limited. 318 Accordingly, the line of argument alleging that the Commission made a manifest error of assessment in finding that there was no risk of market foreclosure must be rejected. 319 It follows from the foregoing considerations that the applicants and the interveners in support of their claims have not demonstrated, first, that the Commission’s findings that there was no risk of market saturation and no risk of market foreclosure are vitiated by manifest errors of assessment and, second, that the Commission made a manifest error of assessment in finding that the risk of a dominant position did not offset the positive effects in terms of contribution to the objective of common European interest. 320 Accordingly, the line of argument alleging that the Commission made manifest errors of assessment in the examination of certain negative elements which, taken individually or together, are capable of offsetting the positive effects in terms of contribution to the objective of common European interest must be rejected. 321 In the fourth place, as regards the applicants’ line of argument by which, in essence, it is alleged that the Commission failed to take account of the fact that the access plans for Scandlines’ facilities in Puttgarden are downgraded, it should be noted, first of all, that the evidence adduced by the applicants, on which there are road layout modifications in the vicinity of Puttgarden, is not sufficiently precise to determine that Femern is responsible for the construction of those modifications to the roads. In that regard, as the Kingdom of Denmark has stated, it follows from Article 5(2) of the Fehmarn Belt Treaty that, in principle, it is for the German authorities to carry out the upgrading and financing of the hinterland connections up to the Fixed Link. 322 Next, even if Femern were to carry out works for the construction of certain roads in the territory of the Federal Republic of Germany, there is no evidence to establish that that undertaking decided on the layout of those roads. Contrary to what the applicants submit, it is not apparent from the contract concluded on 30 October 2009 between Femern and the Federal Republic of Germany represented by the Land of Schleswig-Holstein that the German authorities delegated to that undertaking the necessary powers to decide on the layout of roads in the territory of the Federal Republic of Germany. It is apparent from Article 2(1) of that contract that the sovereign powers of the State are not transferred to Femern. 323 It follows that, since responsibility for ensuring access to the port of Puttgarden lies with the German authorities, the Commission was fully entitled to consider that it was not for the Commission, in the context of the review of State aid, to assess whether road modifications would hinder access to the port of Puttgarden. 324 Furthermore, as regards the claim that Femern has used the aid to remove Scandlines’ rail access to the port of Rødby, it must be noted that the evidence provided is not precise enough to determine whether the removal of that access concerns the construction of the Fixed Link as such or whether it concerns the construction of the rail hinterland connections, which are the responsibility of Banedanmark on behalf of Femern Landanlæg. 325 In the fifth place, as regards the applicants’ argument that the aid distorts competitors’ investments on the ground that the Danish Minister for Transport refused to support an application for financing under the CEF for a zero-emissions ferry project, it must be noted that that decision not to support the applicants’ project was adopted by the Danish Government in the context of the implementation of transport policy and is not imputable to Femern. It follows that the Commission was entitled to conclude, in recital 360 of the contested decision, that such a decision cannot be taken into account in the balancing assessment. 326 In the sixth place, as regards the line of argument, raised for the first time at the hearing by NABU, that, in the balancing exercise, the Commission did not take sufficient account of the environmental impact of the Fixed Link, that line of argument must be rejected as inadmissible on the ground that the application does not contain any complaint or argument calling into question the merits of the findings made by the Commission in recitals 366 to 368 of the contested decision. In any event, that line of argument cannot succeed. It is not supported by any evidence and, moreover, taking into account environmental considerations is not part of weighing up the positive and negative effects of the aid measure (see, by analogy, judgment of 22 September 2020, Austria v Commission, C‑594/18 P, EU:C:2020:742, paragraphs 101 and 102). Moreover, although the Commission found, in recitals 367 and 368 of the contested decision, that the Danish authorities took account of the environmental impact of the Fixed Link, that that impact was considered and mitigated and that the basis for the project was that it should be prepared, constructed and operated so that harmful effects on nature and the environment are prevented and so that considerable adverse impacts are countered, NABU has not adduced any evidence capable of calling into question those findings. 327 In the light of the foregoing considerations, the fourth part of the second plea must be rejected in its entirety. 328 In the light of all of the foregoing considerations, the action must be dismissed. III. Costs 329 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission. 330 Under Article 138(1) of the Rules of Procedure, the Member States which intervened in the proceedings are to bear their own costs. Accordingly, the Kingdom of Denmark, which intervened in support of the form of order sought by the Commission, must bear its own costs. 331 Under Article 138(3) of the Rules of Procedure, the Court may order an intervener other than those referred to in paragraphs 1 and 2 of that article to bear its own costs. In the present case, ECSA, DFA, NABU, VDR, Aktionsbündnis, FSS, Rederi Nordö-Link and Trelleborg Hamn must bear their own costs. On those grounds, THE GENERAL COURT (First Chamber, Extended Composition) hereby: 1. Dismisses the action; 2. Orders Scandlines Danmark ApS and Scandlines Deutschland GmbH to bear their own costs and to pay those incurred by the European Commission; 3. Orders the Kingdom of Denmark, European Community Shipowners’ Associations (ECSA), Danish Ferry Association, Naturschutzbund Deutschland eV (NABU), Verband Deutscher Reeder eV, Aktionsbündnis gegen eine feste Fehmarnbeltquerung eV, Föreningen Svensk Sjöfart (FSS), Rederi AB Nordö-Link and Trelleborg Hamn AB to bear their own costs. Papasavvas Spielmann Brkan Gâlea Tóth Delivered in open court in Luxembourg on 28 February 2024. V. Di Bucci M. van der Woude Registrar President Table of contents I. Background to the dispute A. The Fehmarn Belt Fixed Link project B. Events prior to the dispute C. Administrative procedure D. Contested decision E. Forms of order sought II. Law A. The first plea in law, alleging that the Commission incorrectly classified the measures at issue as one single ad hoc aid B. The second plea in law, alleging infringement of Article 107(3)(b) TFEU 1. The first part, alleging that the Commission incorrectly classified the project as a project of common European interest (a) Admissibility of the new complaint alleging breach of the principle of the phasing out of environmentally harmful subsidies (b) The third complaint, alleging that the project is not co-financed by Femern (c) The first and second complaints, alleging that there is no positive socioeconomic return 2. The second part, alleging that the Commission was wrong to conclude that the aid was necessary (a) The first complaint, alleging that the aid had no incentive effect (b) The second complaint, alleging that the Commission was wrong to find that the counterfactual scenario consisted in the absence of an alternative project (c) The third complaint, challenging the periods used for the purposes of calculating the IRR (necessity of the aid) and of calculating the funding gap (proportionality of the aid) 3. The third part, alleging that the Commission was wrong to conclude that the aid was proportionate (a) The first complaint, challenging the temporal limitation of the aid (b) The second complaint, challenging the funding gap (1) The first sub-complaint, challenging the revenue (2) The second sub-complaint, challenging the costs (c) The third complaint, challenging the aid amount 4. The fourth part, challenging the analysis of the prevention of undue distortions of competition and the balancing test III. Costs * Language of the case: English.