Opinion of the Advocate General — ECLI:EU:C:2025:415
Date: 2025-06-05
Language of the case: Swedish
Procedure: Reference for a preliminary ruling
Origin: Sweden

Summary C-401/24 – 1 
Case C-401/24 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
7 June 2024 
Referring court: 
Stockholms tingsrätt (Sweden) 
Date of the decision to refer: 
29 May 2024 
Applicant: 
Staten genom Sjöfartsverket 
Defendant: 
Stockholms Hamn Aktiebolag 
  
Subject matter of the main proceedings 
The question of whether compensation paid by the Sjöfartsverket (Swedish 
Maritime Administration) (the State) to Stockholms Hamn (a wholly owned 
municipal company), pursuant to an agreement from 1979, in order to compensate 
Stockholms Hamn for its loss of revenue resulting from the abolition of lockage 
fees constitutes prohibited State aid which must be repaid. 
Subject matter and legal basis of the request for a preliminary ruling 
Interpretation of Articles 107(1) and 108 TFEU, Article 1(b) of Regulation 
2015/1589, Regulation No 794/2004 and Article 144 of the Act of Accession in 
order to clarify whether there is State aid and, if so, whether it should be regarded 
as existing aid, and therefore permitted, or whether, for various reasons – which 
relate to the factual circumstances of the case – it should be regarded as 
constituting new aid. 
SV EN
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-401/24 
 
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Questions referred for a preliminary ruling 
1. Should the criterion of favouring in Article 107(1) of the Treaty on the 
Functioning of the European Union be understood as meaning that annual 
compensation which is paid by a State authority to a municipal joint stock 
company from State resources under an agreement as compensation for the 
company’s undertaking to provide free of charge a certain service, in this case 
lock operations, for which fees were charged until the conclusion of the 
agreement, 
(a) is to be regarded in its entirety as constituting aid which distorts or threatens 
to distort competition by favouring the recipient? 
(b) is to be regarded as constituting aid which distorts or threatens to distort 
competition by favouring the recipient to the extent that the compensation exceeds 
the recipient’s previous annual revenue from fees for the service, taking into 
account changes in, for example, the consumer price index and traffic volume in 
lock operations? 
(c) is to be regarded as constituting aid which distorts or threatens to distort 
competition by favouring the recipient to the extent that the compensation exceeds 
the recipient’s annual costs for providing the service? 
(d) is to be regarded as constituting aid which distorts or threatens to distort 
competition by favouring the recipient based on some other calculation model? 
(e) is not to be regarded to any extent as constituting aid which distorts or 
threatens to distort competition by favouring the recipient? 
2. Should an agreement on annual compensation paid by a State authority to a 
municipal joint stock company from State resources as compensation for the 
company’s undertaking to provide free of charge a service outside the agriculture 
sector, in this case lock operations, where the agreement was concluded before 
Sweden’s accession to the European Union and was not notified to the 
Commission, be considered to constitute existing aid which, in accordance with 
Article 1(b)(i) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying 
down detailed rules for the application of Article 108 of the Treaty on the 
Functioning of the European Union, is to be regarded as lawful provided the 
Commission has not found the aid to be incompatible with the internal market? 
3. If question 2 is answered in the affirmative, should such annual 
compensation nevertheless be considered to constitute new aid if, on several 
occasions after Sweden’s accession to the European Union, the agreement was 
extended by five years at a time, in accordance with the original terms, in the 
absence of notice of termination and the annual compensation for each new five-
year period was changed, partly in the light of the consumer price index and partly 
in the light of the extent of the service which was provided free of charge during 
the preceding agreement period, in this case traffic volume in lock operations? 
STOCKHOLMS HAMN 
 
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Provisions of European Union law and case-law relied on 
Articles 107(1) and 108 TFEU 
Articles 1(b)(i), 1(c), 21, 22 and 23 of Council Regulation (EU) 2015/1589 of 
13 July 2015 laying down detailed rules for the application of Article 108 of the 
Treaty on the Functioning of the European Union (‘the Procedural Regulation’) 
Articles 4(1), 4(2)(a) and 4(2)(b) of Commission Regulation (EC) No 794/2004 of 
21 April 2004 implementing Council Regulation (EU) 2015/1589 laying down 
detailed rules for the application of Article 108 of the Treaty on the Functioning of 
the European Union (‘the Implementing Regulation’) 
Article 1(c) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying 
down detailed rules for the application of Article 108 of the Treaty on the 
Functioning of the European Union 
Articles 137(1) and 144 of the Act of Accession for Austria, Finland and Sweden 
Judgments of the Court of Justice of the European Union in the following cases: 
C-280/00, Altmark Trans, EU:C:200:3:415 
C-690/13, Trapeza Eurobank Ergasias, EU:C:2015:235 
C-81/10 P, France Télécom v Commission, EU:C:2011:811 
T-816/17 and T-318/18, Amazon, EU:C:2021:252 
C-173/73, Italy v Commission, EU:C:1974:71 
30/59, Gezamenlijke Steenkolenmijnen v High Authority, EU:C:1961:2 
57/86, Greece v Commission, EU:C:1988:284 
C-372/97, Italy v Commission, EU:C:2004:234 
C-128/19, Azienda Sanitaria Provinciale di Catania, EU:C:2021:401 
C-138/09, Todaro Nunziatina, EU:C:2010:291 
C-111/10, Commission v Council, EU:C:2013:785 
C-121/10, Commission v Council, EU:C:2013:784 
C-44/93, Namur-Les assurances du crédit v OND and Belgium, EU:C:1994:311 
C-590/14 P, DEI and Commission v Alouminion tis Ellados, EU:C:2016:797 
C-6/12, P Oy, EU:C:2013:525 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-401/24 
 
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C-322/09 P, NDSHT v Commission, EU:C:2010:701 
T-152/06 RENV, NDSHT v Commission, EU:T:2011:433 
C-437/97, EKW and Wein & Co, EU:C:1999:342 
Advocate General’s Opinions in the following cases: 
177/78, Pigs and Bacon Commission v McCarren, EU:C:1979:127 
222/82, Apple and Pear Development Council, EU:C:1983:370 
C-6/12, P Oy, EU:C:2013:69 
C-437/97, EKW and Wein & Co, EU:C:2000:110 
Provisions of national law relied on 
First subparagraph of Paragraph 2 and Paragraph 3 of lagen (2013:388) om 
tillämpning av Europeiska unionens statsstödsregler (Law (2013:388) on the 
application of European Union rules on State aid, ‘the Implementing Law’) 
Kungl. Maj:ts kungörelse om fastställelse av hamn- och farledsavgifter 
(SFS 1950:152) (Royal Decree fixing port and fairway fees, SFS 1950:152) 
Succinct presentation of the facts and procedure in the main proceedings 
1 The parties in this case are Staten genom Sjöfartsverket (the State through the 
Sjöfartsverket, ‘the Sjöfartsverket’) and Stockholms Hamn Aktiebolag 
(‘Stockholms Hamn’). The Sjöfartsverket is a State authority which is responsible 
for passage through the Södertälje Canal. Stockholms Hamn is a municipal 
company, wholly owned by Stockholm Municipality, which operates Hammarby 
lock. 
2 Until 1979, the Sjöfartsverket charged lockage fees on the Södertälje Canal and 
Stockholm Municipality charged lockage fees for Hammarby lock. Fees were 
coordinated between the Södertälje Canal and Hammarby lock so that fees would 
not affect the distribution of traffic in the two connections between Lake Malar 
and the Baltic Sea. 
3 In 1978, the government proposed in the Bill on the abolition of special passage 
fees for traffic in Lake Vänern and Lake Malar (Prop. 1978/79:24, p. 6 and 8) that 
canal fees on the Södertälje Canal should be abolished and that the special fees for 
passage through Hammarby lock should therefore be discontinued by means of a 
similar procedure. It was considered necessary for Stockholm Municipality to be 
compensated for the loss of revenue entailed by the abolition of passage fees. 
STOCKHOLMS HAMN 
 
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4 The government instructed the Sjöfartsverket to negotiate with Stockholm 
Municipality in accordance with the guidelines set out in the Bill. According to 
the instructions, Stockholm Municipality should thus be compensated for the loss 
of revenue entailed by the abolition of passage fees. The compensation was not to 
be based directly on costs but be paid in the form of annual compensation based 
on traffic volume and the level of charges at the time. 
5 In 1979, the Sjöfartsverket and Stockholm Municipality concluded an agreement 
under which the Municipality undertook not to charge fees for vessels other than 
recreational vessels for passage through Hammarby lock in exchange for annual 
compensation from the Sjöfartsverket. Under the terms of the agreement, the 
compensation would be calculated each year based on the consumer price index. 
The agreement would be extended for five years at a time unless notice of 
termination was given at least six months before the end of the term of the 
agreement. A new annual compensation sum would be fixed for each new five-
year period based on changes in traffic volume in Hammarby lock during the 
preceding agreement period. Compensation under the agreement was paid initially 
to Stockholm Municipality and then, from the beginning of the 1990s, to 
Stockholms Hamn. 
6 The Sjöfartsverket gave notice of early termination of the agreement at the end of 
2021. A dispute concerning the termination/cancellation has been brought before 
Norrköpings tingsrätt (District Court, Norrköping, Sweden). 
7 The Sjöfartsverket paid annual compensation to Stockholms Hamn retroactively 
under the agreement from State resources, covered by additional appropriations in 
the State budget. The amounts claimed were paid as follows. According to 
Stockholms Hamn, the reason the compensation paid in 2013 was much higher 
than in subsequent years is that the compensation also included a late payment for 
2011 and a retroactive additional payment for 2010. 
25.03.2013: SEK 7 116 097 
06.11.2014: SEK 3 250 194 
24.04.2015: SEK 3 142 872 
11.04.2016: SEK 3 145 574 
16.03.2017: SEK 3 182 706 
15.02.2018: SEK 3 236 551 
21.02.2019: SEK 3 310 013 
05.03.2020: SEK 3 847 568 
01.04.2021: SEK 3 858 216 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-401/24 
 
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17.02.2022: SEK 3 996 645 
8 On 4 May 2023, the Sjöfartsverket brought an action against Stockholms Hamn at 
Stockholms tingsrätt (District Court, Stockholm, Sweden), claiming that 
Stockholms Hamn should repay a sum of SEK 38 086 436 plus interest. That sum 
corresponds to the payments made under the agreement on compensation within 
the 10-year national limitation period from the time the action was brought. 
The essential arguments of the parties in the main proceedings 
9 The Sjöfartsverket has submitted, in essence, that by the agreement on 
compensation Stockholms Hamn was granted an advantage through State 
resources which favoured Stockholms Hamn and distorted or threatened to distort 
competition and was such as to affect trade between Member States. This holds 
regardless of whether the compensation under the agreement was less than either 
Stockholms Hamn’s previous revenue from lock operations or the company’s 
costs for running lock operations, since it was an advantage for Stockholms Hamn 
to receive steady, guaranteed revenue which was not dependent on temporary 
fluctuations in traffic flows or other operational risks. Furthermore, the market 
economy investor principle (which entails an assessment of whether, in similar 
circumstances, a private investor of a comparable size operating in normal 
conditions of a market economy could have been prompted to make the 
investment in question) (see paragraph 74 of the Commission Notice on the notion 
of State aid as referred to in Article 107(1) of the Treaty on the Functioning of the 
European Union) shows that the payments constituted State aid because no private 
investor can be identified which would have found reason to pay compensation to 
Stockholms Hamn in order that Stockholms Hamn would in turn refrain from 
charging lockage fees. The so-called Altmark criteria (see paragraphs 87-95 of the 
judgment in Case C-280/00, Altmark Trans, EU:C:2003:415) are not satisfied. 
The compensation therefore constituted unlawful aid which must be repaid. 
10 The exception for existing aid in Article 1(b)(i) of Council Regulation 2015/1589 
(‘the Procedural Regulation’) is not applicable. The aid at issue was not 
communicated to the Commission and the conditions laid down in Article 144 of 
the Act of Accession are therefore not met. Article 144 of the Act of Accession 
appears under the heading ‘Title VI Agriculture’, but it is clear from its wording 
in particular that the provision, unlike Articles 138-143, is also generally 
applicable to State aid outside the agriculture sector. 
11 In any event, there can be no question of existing aid because each new agreement 
period was preceded by informed deliberations by the Sjöfartsverket. 
Furthermore, before each new five-year agreement period, the parties negotiated 
the compensation to be paid. 
12 There are no exceptional circumstances which mean that repayment would be 
inappropriate. 
STOCKHOLMS HAMN 
 
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13 Stockholms Hamn has asserted that the compensation does not satisfy the 
cumulative criteria for being State aid. Stockholms Hamn’s activity of operating 
Hammarby lock is not economic activity falling within the scope of the EU rules 
on State aid. In any case it constitutes a service of general economic interest 
which Stockholms Hamn has been required to provide. Stockholms Hamn was not 
favoured economically in comparison with competing undertakings because the 
criteria on the basis of which the compensation from the Sjöfartsverket was 
calculated were determined in advance in an objective and transparent manner. 
The compensation covered only the loss of revenue and was less than the costs of 
operation and maintenance. The so-called Altmark criteria are therefore satisfied. 
14 The market economy investor principle is not relevant in this case because a 
private operator would not wish to make basic infrastructure free of charge for all 
users at its own expense. 
15 The compensation did not give rise to any favouring or any economic advantage 
for Stockholms Hamn and, in any case, was not such as to affect trade between 
Member States. 
16 Even if State aid is considered to exist, the payments would have been permitted 
as existing aid under Article 1(b)(i) of the Procedural Regulation. Article 144 of 
the Act of Accession is not relevant in this case because the provision appears in 
‘Title VI Agriculture’ and concerns only State aid for agricultural products. For 
similar reasons, it is irrelevant that the purported aid was not communicated to the 
Commission. 
17 The agreement on compensation was automatically extended by five years at a 
time unless notice of termination was given at least six months before the end of 
the term of the agreement. The increase in compensation was regulated in the 
agreement and consists merely in an indexation and an adjustment based on traffic 
volume in Hammarby lock under the provisions of the agreement. Therefore, there 
was no question of new aid or altered aid for each new five-year period. There has 
been no renegotiation between the parties of the terms of the agreement or of the 
compensation. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
18 According to the District Court, it needs further guidance from the Court of 
Justice in order to be able to determine how the criterion of favouring in 
Article 107(1) TFEU is to be applied in the situation at issue. In addition, the 
District Court has been unable to identify any decision in which the Court of 
Justice has stated expressly and unequivocally whether Article 144 of the Act of 
Accession is to be interpreted as applying only to State aid in the agriculture 
sector. The Court of Justice has addressed the question of new or altered aid in a 
large number of decisions but the District Court has not found any clear guidance 
in existing case-law as regards the circumstances of the present case, where it is 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-401/24 
 
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undisputed that the agreement on compensation was extended and amended after 
Sweden’s accession to the European Union. 
19 The District Court has taken into consideration the abovementioned case-law of 
the Court of Justice and has also referred to the ‘Commission Notice on the notion 
of State aid as referred to in Article 107(1) of the Treaty on the Functioning of the 
European Union’, the ‘Invitation to submit comments pursuant to Article 88(2) of 
the EC Treaty, concerning aid C 42/03’, together with legal literature: Quigley, 
Conor, European State Aid Law and Policy (and UK Subsidy Control), 4th 
edition, Hart, United Kingdom, 2022, p. 615.