ORDER OF THE GENERAL COURT (Sixth Chamber)
13 December 2018 (*)
(Action for failure to act — State aid — Public financing of the Fehmarn Belt fixed road-rail link — Individual aid — Adoption of a position by the Commission — Inadmissibility)
In Case T‑891/16,
Scandlines Danmark ApS, established in Copenhagen (Denmark),
Scandlines Deutschland GmbH, established in Hamburg (Germany),
represented by L. Sandberg-Mørch, lawyer,
applicants,
v
European Commission, represented by L. Armati and by S. Noë, acting as Agents,
defendant,
supported by
Kingdom of Denmark, represented initially by C. Thorning, and subsequently by J. Nymann-Lindegren, acting as Agents, and by R. Holdgaard, lawyer,
intervener,
APPLICATION pursuant to Article 265 TFEU for a declaration that the Commission acted unlawfully by failing to define its position on aid measures concerning the financing, planning and construction of the Fehmarn Belt fixed rail-road link
THE GENERAL COURT (Sixth Chamber),
composed of G. Berardis, President, D. Spielmann and Z. Csehi (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
The applicants
1        The applicants, Scandlines Danmark ApS and Scandlines Deutschland GmbH, are part of a ferry operator group founded in 1998 engaged in the transport of passengers, cars, trains and freight. They operate two ferry routes between Germany and Denmark, that is, respectively, between Puttgarden-Rødby and Rostock-Gedser.
The project and the previous decisions
2        The Treaty between the Kingdom of Denmark and the Federal Republic of Germany on a fixed link across the Fehmarn Belt, signed on 3 September 2008 and ratified in 2009 (‘the international agreement’), approved the project for the Fehmarn Belt link between Denmark and Germany (‘the project’). The Project consists of infrastructure, namely an immersed tunnel (‘the fixed link’), and rail and road hinterland connections in Denmark.
3        Pursuant to Article 6 of the international agreement and the Lov no° 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 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 and the second, A/S Femern Landanlæg, established in 2009, is responsible for the construction, operation and financing of the Danish hinterland connections. Femern Landanlæg is a subsidiary of Sund & Bælt Holding A/S, which is owned by the Danish State, and Femern became a subsidiary of Femern Landanlæg following the latter’s establishment in 2009.
4        The project was preceded by a planning phase. The European Commission was given notification of the financing of that phase, in so far as concerns the fixed link and the Danish hinterland connections, for reasons of legal certainty.
5        On 13 July 2009, by decision 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 planning decision’), the Commission concluded, first, that the planning of the fixed link did not constitute an economic activity and, second, that, even if the public financing of the planning phase could potentially benefit the future operator of the fixed link, the measures notified would be compatible with the internal market. It therefore decided not to raise 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).
6        On 5 June 2014, the applicants filed a complaint with the Commission concerning the financing of the planning, construction and operation of the Fehmarn Belt fixed link project (‘the complaint’).
7        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 construction decision’).
8        The operative part of the construction decision is divided into two parts.
–        by the first part, the Commission concluded that the measures granted to Femern Landanlæg for the planning, construction and operation of the road and rail hinterland connections did not constitute State aid within the meaning of Article 107(1) TFEU;
–        by the second part, the Commission concluded that, even if the measures granted to Femern for the planning, construction and operation of the fixed link constituted State aid within the meaning of Article 107(1) TFEU, they were compatible with the internal market pursuant to Article 107(3)(b) TFEU.
9        On 16 September 2015, the Commission sent a copy of that decision to the applicants by letter in which, referring to the complaint, it indicated that it had taken a decision on the measures in question (‘the covering letter’).
10      The construction decision is the subject matter of both the action registered as Case T‑630/15, lodged by the applicants on 10 November 2015, and the action registered as Case T‑631/15, lodged by Stena Line Scandinavia AB on 11 November 2015.
The administrative procedure and the contested measures
11      On 2 August 2016, the applicants sent a letter of formal notice to the Commission (‘the letter of formal notice’), asking it to taking steps in respect of certain aid measures which, in their view, had not been addressed by the planning and construction decisions, even though those measures had been referred to in their complaint.
12      The measures at issue (‘the contested measures’) were the following:
–        first, new aid granted to 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
–        second, additional State aid granted to Femern for the construction phase of the fixed link, in the form of non-commercial railway charges paid by Danske Statsbaner (DSB), the existing State-owned railway operator, and the free use of State-owned property, namely marine areas and parts of the seabed to be used for the construction of the fixed link.
The letter adopting a position
13      By letter of 30 September 2016 (‘the letter adopting a position’), the Commission replied to the letter of formal notice.
14      The conclusions to the letter adopting a position are in two parts:
–        by the first part, the Commission states that the applicants’ claims concerning the railway charges and the use of State-owned property had already been addressed by the construction decision;
–        by the second part, the Commission stated that the evidence put forward by the applicants as regards the tax measures and the alleged misuse of aid during the planning phase was not sufficient to show, prima facie, that the aid granted was unlawful, and requested the applicants to submit their comments within one month.
Events after the letter adopting a position
15      The applicants replied to the letter adopting a position on 30 October 2016.
16      On 12 December 2016, in addition to bringing the present action for a declaration that the Commission acted unlawfully by failing to act on the complaint and the letter of formal notice, the applicants brought an action registered as Case T‑890/16 for annulment of the letter adopting a position in the event that that letter is deemed to constitute the definition of a position within the meaning of Article 265 TFEU.
17      On 16 May 2017, with regard to the aid measures in the form of railway charges and the free use of State-owned property, the applicants put forward new pleas in Case T‑630/15, alleging that in the event that the Court should share the position adopted by the Commission in the letter adopting a position and in its defence in Case T‑890/16, namely that the construction decision had addressed both those measures, it should also annul that decision in so far as it relates to those two measures.
Procedure and forms of order sought
18      By application lodged at the General Court Registry on 12 December 2016, the applicants brought the present action.
19      On 27 March 2017, the Commission lodged its defence. The reply and the rejoinder were lodged within the periods prescribed.
20      By document lodged at the Court Registry on 20 April 2017, the Kingdom of Denmark sought leave to intervene in the present proceedings in support of the Commission. By order of 3 July 2017, the President of the Sixth Chamber of the General Court granted leave to intervene. The Kingdom of Denmark lodged its statement in intervention and the other parties lodged their observations on the statement within the periods prescribed.
21      By separate document lodged at the Court Registry on 26 May 2016, the applicants made an application for confidential treatment with regard to the Kingdom of Denmark. On the same day, the applicants also lodged a non-confidential version of the application.
22      The applicants claim that the Court should:
–        declare the action admissible;
–        declare that the Commission failed to define its position, in breach of Article 265 TFEU;
–        order the Commission to pay the costs.
23      The Commission, supported by the Danish Republic, contends that the Court should:
–        dismiss the application;
–        order the applicants to pay the costs.
Law
24      As regards the admissibility of the action, first of all, the applicants maintain that they are directly and individually concerned by the act which the Commission failed to adopt and have an interest in it being declared that the Commission failed to act. Next, they submit that they sent a valid letter of formal notice to the Commission for the purpose of Article 265 TFEU. Finally, the applicants contend that, when the Commission was formally requested to define its position within the meaning of Article 265 TFEU, it was incumbent upon it to act, as required by Articles 12(1), 15(1) and 24(2) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU] (OJ 2015 L 248, p. 9).
25      As to whether the action is well founded, the applicants put forward seven pleas in law. The first and second pleas allege that the Commission omitted to act with regard to the potential overcompensation which the non-commercial railway charges to be paid by DSB, the Danish national railway operator, to Femern for use of the fixed link would entail and the grant of State aid to Femern in the form of the free use of State-owned property for the construction of the fixed link. The third to seventh pleas allege that the Commission omitted to act with regard to the grant to Femern and Femern Landanlæg, as the case may be, of a number of aid measures which were not authorised in the planning decision.
26      Those seven pleas are all based on the following line of argument.
27      In the first place, the applicants state that, in the complaint, they contended that those seven aid measures should not exist.
28      In the second place, the applicants state that, over of period spanning more than 26 months, the Commission failed to complete its preliminary examination in relation to those measures, namely the period that elapsed between the complaint and the letter of formal notice.
29      In the third place, in accordance with Articles 12(1), 15(1) and 24(2) of Regulation 2015/1589, the Commission was required to set in motion the preliminary examination stage without delay, which should have led it either to inform the applicants that there were insufficient grounds for taking a view on the case or, in any event to adopt a decision under Article 4(2), (3) or (4) of Regulation 2015/1589.
30      Lastly, the Danish authorities did not give notification of the contested measures, which, moreover, were not mentioned, let alone examined, in the construction decision, in so far as concerns the first two measures, or in the planning decision, with regard to the five other measures. Moreover, in the letter adopting a position, the Commission simply stated, in general terms, that those measures had already been examined, respectively, in the construction decision or in the planning decision. The applicants also submit that, as regards the first two pleas, the Commission changed its position on whether it was the construction decision or the letter adopting a position which, in its view, contained a definition of its position in relation to the two measures in question.
31      The Commission, supported by the Kingdom of Denmark, disputes the applicants’ arguments and contends that the action is inadmissible, on the ground that it defined its position in relation to the contested measures.
32      Under Article 129 of its Rules of Procedure, on a proposal from the Judge-Rapporteur, the General Court may, of its own motion at any time after hearing the main parties, decide to rule by reasoned order on whether there exists any absolute bar to proceeding with a case. In the present case, the Court considers that it has sufficient information from the material in the file and has decided to give a decision without taking further steps in the proceedings.
33      As a preliminary point, it should be noted that Article 265 TFEU is worded as follows:
‘Should the European Parliament, the European Council, the Council, the Commission or the European Central Bank, in infringement of the Treaties, fail to act, the Member States and the other institutions of the Union may bring an action before the Court of Justice of the European Union to have the infringement established. This Article shall apply, under the same conditions, to bodies, offices and agencies of the Union which fail to act.
The action shall be admissible only if the institution, body, office or agency concerned has first been called upon to act. If, within two months of being so called upon, the institution, body, office or agency concerned has not defined its position, the action may be brought within a further period of two months.
Any natural or legal person may, under the conditions laid down in the preceding paragraphs, complain to the Court that an institution, body, office or agency of the Union has failed to address to that person any act other than a recommendation or an opinion.’
34      Furthermore, with regard to the obligation upon the Commission to act in relation to the grant of unlawful aid or the misuse of aid, it is appropriate to refer to the content of the relevant provisions of Regulation 2015/1589.
35      First of all, the second subparagraph of Article 12(1) of Regulation 2015/1589 states as follows:
‘The Commission shall examine without undue delay any complaint submitted by any interested party in accordance with Article 24(2) and shall ensure that the Member State concerned is kept fully and regularly informed of the progress and outcome of the examination.’
36      Next, Article 24(2) of Regulation 2015/1589 provides as follows:
‘Any interested party may submit a complaint to inform the Commission of any alleged unlawful aid or any alleged misuse of aid. To that effect, the interested party shall duly complete a form that has been set out in an implementing provision referred to in Article 33 and shall provide the mandatory information requested therein.
Where the Commission considers that the interested party does not comply with the compulsory complaint form, or that the facts and points of law put forward by the interested party do not provide sufficient grounds to show, on the basis of a prima facie examination, the existence of unlawful aid or misuse of aid, it shall inform the interested party thereof and call upon it to submit comments within a prescribed period which shall not normally exceed one month. If the interested party fails to make known its views within the prescribed period, the complaint shall be deemed to have been withdrawn. The Commission shall inform the Member State concerned when a complaint has been deemed to have been withdrawn.
The Commission shall send a copy of the decision on a case concerning the subject matter of the complaint to the complainant.’
37      Lastly, Article 15(1) of Regulation 2015/1589 provides as follows:
‘The examination of possible unlawful aid shall result in a decision pursuant to Article 4(2), (3) or (4). In the case of decisions to initiate the formal investigation procedure, proceedings shall be closed by means of a decision pursuant to Article 9 …’
38      It is in the light of those provisions that it is necessary to examine whether the conditions laid down in Article 265 TFEU are satisfied in the present case and, in particular, to ascertain whether the letter adopting a position, which also forms the subject matter of the applicant’s action for annulment registered as Case T‑890/16, constitutes a genuine ‘definition of a position’ in relation to the applicants’ letter of formal notice.
39      Before proceeding with that examination, it will be useful to set out below the relevant stages of the administrative procedure:
–        on 5 June 2014, the applicants lodged the complaint;
–        on 23 July 2015, the Commission adopted the construction decision, which, on 16 September 2015, was sent to the applicants under the covering letter;
–        on 2 August 2016, the applicants gave the Commission formal notice to define its position, in accordance with Article 265 TFEU;
–        on 30 September 2016, the Commission replied to the applicants’ letter of formal notice;
–        on 30 October 2016, the applicants replied to that letter.
40      First, it should be noted that the Commission’s reply to the letter of formal notice was sent within the two-month period laid down in Article 265 TFEU, which is, moreover, not disputed.
41      Second, the covering letter addressed the complaint and stated, referring to the construction decision, that the Commission had ‘adopted a decision concerning the measures in question’. It is therefore clear that the Commission had adopted a definitive position on the complaint, irrespective of the merits of that position.
42      Third, as the Commission observed, the letter of formal notice does not contain any reference to information or analyses which had not already been put forward in the complaint. In that letter, the applicants first of all refer to the aid measures contested in the complaint, go on to criticise the Commission for not having acted in relation to the contested measures and, finally, call upon it to act within the meaning of Article 265 TFEU.
43      Fourth, it should be noted that, in the letter of formal notice, the applicants made a distinction between (i) the railway charges and the free use of State-owned property, which were not covered by the construction decision, and (ii) the other contested measures, in respect of which they allege that the Danish authorities misused aid authorised by the planning decision.
44      By the letter adopting a position, the Commission also made a distinction between those two types of measure. First, it concluded that the railway charges and the free use of State-owned property had been taken into account in the construction decision and that, accordingly, it had not failed to make a decision in that regard. Second, it stated that, under Article 20 of Regulation 2015/1589, it was not obliged to act in respect of the misuse of aid, and rejected the applicants’ claims, in so far as they alleged that unlawful new aid had been granted, on the ground that the contested measures had been taken into account by the planning decision or, in any event, the construction decision. It concluded by informing the applicants of its preliminary position that there were insufficient grounds for it to be concluded that the alleged aid measures entailed the grant of unlawful aid and invited them to submit their comments.
45      It is in the light of the above factors that the Court must ascertain whether the Commission genuinely defined its ‘position’ for the purpose of Article 265 TFEU.
46      With regard, in the first place, to the railway charges and the free use of State-owned property, it should be recalled that those measures were covered by the applicants’ complaint and that, by the covering letter enclosing the construction decision, the Commission informed the applicants, albeit extremely succinctly, that it had examined the measures concerned by the complaint in that decision (see paragraph 41 above). The applicants were therefore in a position to verify whether the Commission had given an exhaustive answer to their complaint.
47      As indicated in paragraph 10 above, the applicants have challenged that decision in Case T‑630/15, without claiming, however, when that action was brought, that the two measures in question have not been examined (see paragraph 17 above). It is only with the letter of formal notice, which postdates the construction decision by more than a year and the covering letter enclosing that decision by almost 11 months, that they claimed that the Commission had failed to examine those measures.
48      In those circumstances, it is clear, with regard to those two measures, that the letter in which the Commission adopted a position — irrespective of its merits — is a confirmatory measure, which cannot form the subject matter of an action for annulment, and at the same time constitutes a valid definition of its position within the meaning of Article 265 TFEU (see, to that effect, order of 9 January 2012, Neubrandenburger Wohnungsgesellschaft v Commission, T‑407/09, not published, EU:T:2012:1, paragraphs 29 to 34 and 40 and the case-law cited).
49      As regards, in the second place, the other contested measures, which, it is alleged, were granted in breach of the planning decision, it should be noted that in the letter adopting a position the Commission concluded that the facts and points of law put forward by the applicants did not provide sufficient grounds to show, on the basis of a prima facie examination, the existence of unlawful aid, and invited the applicants to submit their comments within one month, which the applicants did by letter of 30 October 2016.
50      It is therefore clear, with regard to the latter measures, that the letter adopting a position constitutes a preliminary decision for the purpose of the second subparagraph of Article 24(2) of Regulation 2015/1589. Although it cannot form the subject matter of an action for annulment, that letter constitutes a valid definition of a position within the meaning of Article 265 TFEU.
51      That conclusion is not affected by the applicants’ arguments.
52      First of all, the fact that 26 months elapsed between the complaint and the letter of formal notice is irrelevant, given that what matters is the fact that the Commission adopted a position following the formal notice given by the applicants and before the action was brought in the present case. Moreover, during the period in question, the Commission answered the complaint by the construction decision and the covering letter enclosing that decision.
53      Next, and in any event, the applicants have failed to show that, in the circumstances of the present case, the Commission was required to initiate the formal investigation procedure. On the contrary, by its letter adopting a position, it followed the complaints handling procedure laid down in Article 24(2) of Regulation 2015/1589 correctly.
54      Finally, the argument that the Commission was not given notification of the contested measures and that they were not examined or approved by it is irrelevant. That argument relates to whether, in the construction decision, the Commission examined those measures, or should have examined them and failed to adopt a position, which is relevant to the merits of the action, not its admissibility, and should have been raised when the action for annulment of that decision was lodged or, as the case may be, at the time of the covering letter.
55      It must therefore be concluded that the Commission adopted a valid definition of its position within the meaning of Article 265 TFEU before the present action was brought. Accordingly, that action must be dismissed as inadmissible
Costs
56      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.
57      Under Article 138(1) of the Rules of Procedure, Member States which have intervened in the proceedings are to bear their own costs.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby orders:
1.      The action is dismissed as inadmissible;
2.      Scandlines Danmark ApS and Scandlines Deutschland GmbH are to bear their own costs and to pay the costs incurred by the European Commission;
3.      The Kingdom of Denmark is to bear its own costs.
Luxembourg, 13 December 2018.
E. Coulon
G. Berardis
Registrar President
*      Language of the case: English.