ORDER OF THE COURT (First Chamber)
3 September 2021 (*)
(Appeal – Article 181 of the Rules of Procedure of the Court – Action for annulment – State aid – Public financing of the Fehmarn Belt fixed rail-road link – Individual aid – Act not open to challenge – Purely confirmatory measure – Preparatory measure)
In Case C‑173/19 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 25 February 2019,
Scandlines Danmark ApS, established in Copenhagen (Denmark),
Scandlines Deutschland GmbH, established in Hamburg (Germany),
represented by L. Sandberg-Mørch, advokat,
appellants,
the other parties to the proceedings being:
European Commission, represented by S. Noë, V. Bottka and L. Armati, acting as Agents,
defendant at first instance,
Kingdom of Denmark, represented by J. Nymann-Lindegren, acting as Agent, and by R. Holdgaard, advokat,
intervener at first instance,
THE COURT (First Chamber),
composed of J.‑C. Bonichot (Rapporteur), President of the Chamber, L. Bay Larsen, C. Toader, M. Safjan and N. Jääskinen, Judges,
Advocate General: G. Pitruzzella,
Registrar: A. Calot Escobar,
having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 181 of the Rules of Procedure of the Court of Justice,
makes the following
Order
1        By their appeal, Scandlines Danmark ApS and Scandlines Deutschland GmbH seek to have set aside the order of the General Court of the European Union of 13 December 2018, Scandlines Danmark and Scandlines Deutschland v Commission (T‑890/16, not published, EU:T:2018:1004; ‘the order under appeal’), by which the General Court dismissed their action for annulment of the European Commission’s letter of 30 September 2016 concerning State aid implemented by Denmark for the financing of the Fehmarn Belt fixed rail-road link (‘the letter at issue’).
Background to the dispute
The project
2        The dispute concerns the financing of the project for the Fehmarn Belt link between Denmark and Germany, north of Lübeck (Germany) (‘the project’). The project consists, first, in the construction of an immersed tunnel between Rødby on the island of Lolland in Denmark and Puttgarden on the island of Fehmarn in Germany, approximately 19 km in length, equipped with an electrified railway line and a motorway (‘the fixed link’) and, second, in the expansion and upgrade of the road and rail hinterland connections in Denmark, in particular of the existing rail link of approximately 120 km between Ringsted (Denmark) and Rødby. The project was approved by a treaty, signed on 3 September 2008 and ratified in 2009, between the Kingdom of Denmark and the Federal Republic of Germany.
3        The total estimated cost of the project, in fixed 2014 prices, is 64.4 thousand million Danish kroner (DKK) (approximately EUR 8.7 thousand million): DKK 54.9 thousand million (approximately EUR 7.4 thousand million) for the planning and construction of the fixed link, and DKK 9.5 thousand million (approximately EUR 1.3 thousand million) for the planning and construction of the upgrading of the road and rail hinterland connections in Denmark.
4        Pursuant to the Treaty between the Kingdom of Denmark and the Federal Republic of Germany and Lov nr. 575 om anlæg og drift af en fast forbindelse over Femern Bælt med tilhørende landanlæg i Danmark (Law No 575 on the construction and operation of the Fehmarn Belt fixed link and Danish hinterland connections) of 4 May 2015, two Danish public undertakings have been entrusted with the implementation of the project. The first, Femern A/S, established in 2005, is responsible for the financing, construction and operation of the fixed link. The second, Femern Landanlæg A/S, established in 2009, is responsible for the financing, construction and operation of the road and rail hinterland connections in Denmark. Femern Landanlæg is a subsidiary of Sund & Bælt Holding A/S, which is owned by the Danish State. Femern became a subsidiary of Femern Landanlæg following the latter’s establishment.
5        Ownership of the rail connections concerned is to be shared between Banedanmark (20%), the Danish State public rail infrastructure manager, and Femern Landanlæg (80%).
6        The project is financed by Femern and Femern Landanlæg by means of loans raised on the international financial markets and covered by the Kingdom of Denmark’s guarantee, or by means of subsidiary loans from the National Bank of Denmark. By contrast, those companies will be unable to obtain loans for activities other than the financing, planning, construction and operation of the fixed link and the road and rail hinterland connections in Denmark. Those two undertakings also received a capital contribution from the Danish State.
7        Femern will receive the fees paid by users of the fixed link in order to discharge its debt and will pay dividends to Femern Landanlæg, which the latter will use to discharge its own debt.
8        Femern Landanlæg will receive 80% of the amount of the fees paid by the rail operators to Banedanmark for use of the rail connections concerned, in line with the ownership of those rail connections, which is shared between Femern Landanlæg and that manager.
9        Banedanmark will be responsible for all of the costs relating to the operation of the rail hinterland connections in Denmark, whereas the costs relating to their maintenance will be divided between Femern Landanlæg and Banedanmark on a pro rata basis according to their respective ownership shares.
Events prior to the dispute
10      The project was preceded by a planning phase, the financing of which was notified to the Commission by the Danish authorities.
11      By decision of 13 July 2009 relating to State aid N 157/2009 – Financing of the planning phase of the Fehmarn Belt fixed link (OJ 2009 C 202, p. 2), the Commission concluded, first, that the measures relating to the financing of the planning of the fixed link may not constitute State aid and, second, that those measures would in any event be compatible with the internal market. It therefore decided not to raise any objections within the meaning of Article 4(2) and (3) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] (OJ 1999 L 83, p. 1).
12      On 5 June 2014, the appellants filed a complaint with the Commission
in which they claimed that the Kingdom of Denmark had granted State aid that was unlawful and incompatible with the internal market to Femern and Femern Landanlæg for both the planning of the fixed link project and its implementation (‘the complaint’).
13      On 23 July 2015, following notification of the project financing measures by the Danish authorities on 22 December 2014, the Commission adopted Decision C(2015) 5023 final on State aid SA.39078 (2014/N) (Denmark) for the financing of the Fehmarn Belt fixed link project (OJ 2015 C 325, p. 5; ‘the 2015 construction decision’).
14      The operative part of the 2015 construction decision is divided into two parts:
–        by the first part, the Commission takes the view that the measures granted to Femern Landanlæg for the planning, construction and operation of the road and rail hinterland connections in Denmark do not constitute State aid within the meaning of Article 107(1) TFEU, and
–        by the second part, the Commission finds that, even if the measures granted to Femern for the planning, construction and operation of the fixed link did constitute State aid within the meaning of Article 107(1) TFEU, they would be compatible with the internal market pursuant to Article 107(3)(b) TFEU.
15      On 16 September 2015, the Commission sent a copy of that decision to the appellants
accompanied by a letter in which, referring to the complaint, it indicated that it had taken a decision on the measures in question (‘the covering letter’).
16      The 2015 construction decision was the subject matter of an action registered as Case T‑630/15, lodged by the appellants on 10 November 2015, and of an action registered as Case T‑631/15, lodged on 11 November 2015 by Stena Line Scandinavia AB, which is part of a ferry operator group and is responsible for ferry routes between Denmark, Germany, Latvia, Poland, Sweden and Norway.
17      On 2 August 2016, the appellants sent a letter of formal notice to the Commission, requesting it to take steps in respect of measures which, in their view, had not been addressed by the 2009 planning decision or by the 2015 construction decision, even though those measures had been referred to in their complaint (‘the letter of formal notice’).
18      The appellants referred in that regard to measures granted to both
Femern and Femern Landanlæg for the planning phase of the fixed link, in the form of capital injections, State guarantees, State loans and tax advantages, and to measures granted to Femern for the construction phase of the fixed link, in the form of non-commercial railway fees paid by Danske Statsbaner (DSB), the existing State-owned railway operator (‘railway fees’), and the provision for free, on the part of the Danish State, of marine areas and parts of the seabed to be used for the construction of the fixed link.
19      On 30 September 2016, by the letter at issue, the Commission replied to the letter of formal notice.
20      With regard to the railway fees and the free use of property owned by the Danish State, the Commission stated that those measures are covered by the 2015 construction decision. With regard to the other measures referred to in the letter of formal notice, the Commission took the view that the evidence provided by the appellants was not sufficient to show, prima facie, the existence of unlawful aid, and invited them to submit their comments within one month.
Events following the letter at issue
21      The appellants replied to the letter at issue on 30 October 2016.
22      By application lodged at the Registry of the General Court on 12 December 2016, the appellants brought an action seeking a declaration that the Commission had acted unlawfully by failing to act on their complaint and their formal notice. By order of 13 December 2018, Scandlines Danmark and Scandlines Deutschland v Commission (T‑891/16, not published, EU:T:2018:1003), the General Court dismissed that action as being inadmissible. No appeal to the Court of Justice was lodged against that order.
23      On 16 May 2017, the appellants put forward new pleas in law before the General Court in Case T‑630/15, with regard to the aid measures in the form of railway fees and the free use of property owned by the Danish State, alleging that, in the event that the General Court should find that the Commission had in fact addressed those measures in the 2015 construction decision, that decision should be annulled also in so far as it relates to those measures.
24      By judgment of 13 December 2018, Scandlines Danmark and Scandlines Deutschland v Commission (T‑630/15, not published, EU:T:2018:942), the General Court annulled the 2015 construction decision, in so far as the Commission had decided not to raise any objections to the financing arrangement for the fixed link. The General Court ruled to the same effect by judgment of 13 December 2018, Stena Line Scandinavia v Commission (T‑631/15, not published, EU:T:2018:944).
25      Scandlines Danmark and Scandlines Deutschland, on the one hand, and Stena Line Scandinavia, on the other, lodged appeals
seeking to have set aside, respectively, the judgment of 13 December 2018, Scandlines Danmark and Scandlines Deutschland v Commission (T‑630/15, not published, EU:T:2018:942), registered as Case C‑174/19 P, and the judgment of 13 December 2018, Stena Line Scandinavia v Commission (T‑631/15, not published, EU:T:2018:944), registered as Case C‑175/19 P.
The procedure before the General Court and the order under appeal
26      By application lodged at the General Court Registry on 12 December 2016, the appellants brought an action for annulment of the letter at issue. They raised 10 pleas in law in support of their action.
27      By the order under appeal, the General Court declared inadmissible the appellants’ first and second pleas, alleging that the Commission erred in law by finding that the aid measures consisting of the railway fees and the free use of property owned by the Danish State had been examined in the 2015 construction decision.
28      In paragraph 30 of that order, the General Court held that that letter was, with regard to those measures, a confirmatory measure concerning the 2015 construction decision, the Commission having simply referred to the assessment contained in that decision.
29      In paragraphs 31 to 33 of that order, the General Court stated that that conclusion was without prejudice to whether the railway fees and the free use of property owned by the Danish State had actually been addressed in that decision, since the Commission had expressly referred, in the covering letter, to the appellants’ complaint and to the fact that ‘the measures in question’ had been examined by that decision.
30      The Court added, in paragraph 33 of that order, that, by that letter, the Commission had, as a consequence, adopted a ‘definitive position’ on those measures and that any challenge concerning whether or not the railway fees and the free use of property owned by the Danish State had been addressed in the 2015 construction decision had to be directed at that decision or, as the case may be, the covering letter.
31      In paragraph 34 of the order under appeal, the General Court recalled that in the action brought before it by the appellants against the 2015 construction decision, registered as Case T‑630/15, the appellants did not initially address the railway fees and the free use of property owned by the Danish State. The General Court stated that it was only after the letter at issue had been sent and the defence in the case at hand had been lodged – documents in which the Commission argued that that decision also dealt with those measures – that the appellants introduced new pleas, in the context of that action, seeking the annulment of that decision in their regard.
32      The General Court added, in paragraph 35 of that order, that, following the 2015 construction decision and the covering letter, the appellants had at their disposal ‘all the information necessary to enable them to understand that the Commission had adopted a definitive position on the measures contested in the complaint’. It considered that the part of the letter at issue which refers to that decision as regards the railway fees and the free use of property owned by the Danish State constituted a confirmatory measure for the purposes of Article 263 TFEU.
33      In paragraphs 36 and 37 of that order, the General Court also added that that conclusion was not altered by the fact that the Commission had not been given notification of those measures or that they had not been examined or approved by it, since, by the covering letter, the appellants had been ‘clearly informed’ of the fact that the Commission was of the view that it had adopted a definitive position on the measures contested in the complaint.
34      Finally, in paragraphs 40 and
41 of that order, the General Court rejected the appellants’ argument alleging, in the alternative, infringement of the principles arising from paragraphs 33 to 35 of the judgment of 31 May 2017, DEI v Commission (C‑228/16 P, EU:C:2017:409), stating that, in the case at hand, the part of the letter at issue concerning the railway fees and the free use of property owned by the Danish State was not in the nature of a decision and therefore its purpose was neither to replace nor revoke the 2015 construction decision. Consequently, it held that the appellants could not further call that decision into question by bringing an action against that part of the letter at issue, as that would allow them to circumvent the time limit for bringing an action laid down in Article 263 TFEU.
35      Accordingly, in paragraph 42 of the order under appeal, the General Court declared the action inadmissible in so far as it concerned the part of the letter at issue which related to the railway fees and the free use of property owned by the Danish State.
36      In paragraphs 43 to 57 of that order, the General Court examined the appellants’ third to eighth pleas in law, alleging, in essence, that the Commission erred in law by finding, in the letter at issue, that certain measures granted to Femern and Femern Landanlæg for the planning phase of the project, contested in the complaint, constituted existing State aid authorised by the planning decision of 13 July 2009 or, in any event, by the 2015 construction decision. In paragraph 58 of that order, it rejected those pleas, holding that the letter at issue was, with regard to those measures, a preparatory measure which is not open to challenge for the purposes of Article 263 TFEU. Accordingly, it declared the action inadmissible in so far as it related to those measures.
37      Lastly, in view of the fact that the letter at issue is not open to challenge, the General Court also rejected, as ineffective, both the ninth plea, alleging that the Commission had infringed its obligation to initiate the formal investigation procedure, and the tenth plea, alleging a defective statement of reasons in respect of that letter.
38      The General Court accordingly dismissed the action against the order under appeal as being inadmissible.
Forms of order sought by the parties to the appeal and the procedure before the Court of Justice
39      By their appeal, the appellants claim that the Court should set aside the order under appeal and order the Commission to pay the costs.
40      The Commission contends that the Court should dismiss the appeal and order the appellants to pay the costs.
41      The Kingdom of Denmark, intervener at first instance, contends that the Court should dismiss the appeal.
42      By order of the President of the Court of 22 October 2019, Scandlines Danmark and Scandlines Deutschland v Commission (C‑173/19 P, not published, EU:C:2019:907), the applications to intervene lodged by Aktionsbündnis gegen eine feste Fehmarnbeltquerung eV, Rederi AB Nordö-Link and Trelleborg Hamn AB were rejected.
The appeal
43      Under Article 181 of the Rules of Procedure of the Court of Justice, where an appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part.
44      It is appropriate to apply that provision in the present case.
45      In support of their appeal, the appellants put forward two grounds of appeal.
The first ground of appeal
Arguments of the parties
46      By their first ground of appeal, the appellants submit that the General Court erred in holding, in paragraphs 28 to 42 of the order under appeal, that the 2015 construction decision also covered railway fees and the free use of property owned by the Danish State.
47      They submit that that reasoning contradicts paragraph 52 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 General Court refused to examine those measures on the ground that they were not covered by that decision.
48      They submit that that contradiction deprived them of the right to an effective legal remedy, in so far as the General Court also refused to examine the legality of the response to the letter of formal notice concerning the same measures on the ground that they had been examined by the 2015 construction decision.
49      The Commission contends that the first ground of appeal is inadmissible on the ground that the appellants have not indicated clearly which paragraphs of the order under appeal they are contesting, nor specified which of the two analyses allegedly carried out by the General Court was, in their view, unfounded.
50      The Commission submits that the first ground of appeal is, in any event, unfounded.
51      The Danish Government contends that the first ground of appeal is unfounded.
Findings of the Court
52      Irrespective of whether the first ground of appeal is admissible, the contradiction alleged by the appellants is based on a misreading of the judgment of 13 December 2018, Scandlines Danmark and Scandlines Deutschland v Commission (T‑630/15, not published, EU:T:2018:942).
53      First, in paragraph 48 of the judgment of 13 December 2018, Scandlines Danmark and Scandlines Deutschland v Commission (T‑630/15, not published, EU:T:2018:942), the General Court rejected the appellants’ arguments relating to those measures as being new and, therefore, inadmissible. Second, and for the sake of completeness, the General Court did not find, in paragraph 52 of that judgment, that the railway fees and the free use of property owned by the Danish State were not covered by the 2015 construction decision, but merely rejected the appellants’ argument alleging failure to state reasons in that decision as regards those measures, taking the view that that argument did not concern, in the strict sense, a failure to state reasons in that decision. Moreover, the General Court referred, in that paragraph 52, solely to the appellants’ claims, without carrying out any assessment as to whether that decision actually related to those measures.
54      Furthermore, in paragraphs 30 to 33 of the order under appeal, the General Court based the confirmatory nature of the letter at issue not solely on the ground that those measures had been examined in the 2015 construction decision, but also on the fact that, in any event, the Commission had expressly referred to those measures in the covering letter.
55      In paragraph 33 of the order under appeal, the General Court stated that the Commission had, by way of the covering letter, adopted a definitive position on those measures, with the result that any challenge by the appellants concerning whether or not those measures had actually been addressed in the 2015 construction decision had to be directed at that decision or, as the case may be, at the covering letter.
56      Accordingly, the argument that the appellants were deprived of the right to an effective legal remedy cannot succeed either.
57      Consequently, the first ground of appeal must be rejected as being manifestly unfounded.
The second ground of appeal
Arguments of the parties
58      By their second ground of appeal, the appellants submit that the reasoning in the order under appeal is contradictory in that the General Court held, first, in paragraphs 30 and 35 of the order under appeal, that the letter at issue could not form the subject matter of an action because of its confirmatory nature and, second, in paragraph 33 of that order, that the appellants should have brought an action against the covering letter, which, however, is also confirmatory in nature.
59      The Commission and the Danish Government contend that that ground of appeal must be rejected as being unfounded.
60      They submit, inter alia, that the General Court described the covering letter not as a confirmatory measure but an act by which the Commission adopted a definitive position on the measures contested by the complaint.
Findings of the Court
61      As the Commission and the Danish Government point out, it is not apparent from the order under appeal that the General Court classified the covering letter as a confirmatory measure.
62      By contrast, the General Court held, in
paragraphs 32 and 33 of the order under appeal, that, even if it were accepted that the appellants’ criticisms that the 2015 construction decision had not addressed the railway fees and the free use of property owned by the Danish State were well founded, the view would have to be taken that, by that covering letter, the Commission had adopted a definitive position on those measures.
63      Similarly, in paragraph 37 of the order under appeal, the General Court stated that, irrespective of whether notification had been given of those measures or whether they had been examined, the appellants had been clearly informed, following the covering letter, of the fact that the Commission was of the view that it had adopted a definitive position on the measures contested in the complaint.
64      It follows that the second ground of appeal, alleging a contradiction in the reasoning between, on the one hand, paragraphs 30 and 35 of the order under appeal and, on the other, paragraph 33 of that order, in so far as the General Court is alleged to have held in those paragraphs, respectively, that the letter at issue could not form the subject matter of an action on account of its confirmatory nature and that the appellants should have brought an action against the covering letter, despite it also being confirmatory in nature, cannot succeed.
65      Accordingly, the action must be dismissed in its entirety.
Costs
66      Under Article 138(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. In the present case, since the Commission has applied for costs and the appellants have been unsuccessful, the appellants must be ordered to pay, in addition to their own costs, those incurred by the Commission.
67      Under Article 184(4) of the Rules of Procedure, where the appeal has not been brought by an intervener at first instance, he or she may not be ordered to pay costs in the appeal proceedings unless he or she participated in the written or oral part of the proceedings before the Court of Justice. Where an intervener at first instance takes part in the proceedings, the Court may decide that that intervener
is to bear his or her own costs. Since the Kingdom of Denmark took part in the proceedings before the Court, it must be held, in the circumstances of the present case, that it is to bear its own costs.
On those grounds, the Court (First Chamber) hereby orders:
1.      The appeal is dismissed as being manifestly unfounded.
2.      Scandlines Danmark ApS and Scandlines Deutschland GmbH shall pay, in addition to their own costs, those incurred by the European Commission.
3.      The Kingdom of Denmark shall bear its own costs.
Luxembourg, 3 September 2021.
A. Calot Escobar
J.-C. Bonichot
Registrar
President of the First Chamber
*      Language of the case: English.