ORDER OF THE GENERAL COURT (Sixth Chamber)
13 December 2018 (*)
(Action for annulment — State aid — Public financing of the Fehmarn Belt fixed rail-link — Individual aid — Act not open to challenge — Purely confirmatory measure — Preparatory act — Inadmissibility)
In Case T‑890/16,
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,
APPLICTION pursuant to Article 263 TFEU for annulment of the 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 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 fixed link (‘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 contested 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 at issue
13      By letter of 30 September 2016 (‘the letter at issue’), the Commission replied to the letter of formal notice.
14      The conclusions to the letter at issue 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 at issue
15      The applicants replied to the letter at issue on 30 October 2016.
16      On 12 December 2016, in addition to lodging the present action for annulment of the letter at issue, the applicants brought an action, registered as Case T‑891/16, seeking a declaration that the Commission had acted unlawfully by failing to act on their complaint and the letter of formal notice, in the event that the letter at issue is not 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 at issue 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 23 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 2017, 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;
–        annul the letter at issue;
–        order the Commission to pay the costs.
23      The Commission, supported by the Kingdom of Denmark, contends that the Court should:
–        dismiss the action;
–        order the applicants to pay the costs.
Law
24      The applicants state, as a preliminary point, that they challenge both the letter at issue, on the ground that it is unfounded, and the Commission’s decision not to initiate the formal investigation procedure, and claim that their action is admissible because, in addition to the fact that they are the addressees of the letter at issue, they are directly and individually concerned by the letter and have an interest in it being annulled.
25      The applicants rely on the following 10 pleas in law in support of their action:
–        the first and second pleas allege that the Commission erred in law by finding that the potential overcompensation in the form of the railway charges and free use of State-owned property constitutes existing aid authorised by the construction decision;
–        the third to seventh pleas allege that the Commission erred in law by finding that the State guarantees granted to Femern Landanlæg, the capital injections granted to Femern, the State loans granted to Femern, the State aid granted to Femern and Femern Landanlæg in excess of the amount authorised by the planning decision and the tax advantages granted to Femern and Femern Landanlæg constitute existing aid authorised by the planning decision;
–        the eighth plea alleges that the Commission erred in law by finding that, in any event, the contested aid measures relating to the planning phase were authorised by the construction decision;
–        the ninth plea alleges that the Commission infringed the obligation to initiate the formal investigation procedure;
–        the 10th plea alleges failure to state sufficient reasons.
26      The Commission, supported by the Kingdom of Denmark, submits that the action is inadmissible, on the ground, in particular, that there is no act open to challenge.
27      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.
Whether the letter at issue constitutes an act open to challenge in so far as concerns the railway charges and free use of State-owned property
28      By their first and second pleas, the applicants maintain, in essence, that the Commission erred in law by concluding, in the letter at issue, that the State aid in the form of non-commercial railway charges and the free use of State-owned property had been examined by the construction decision, even though the Danish authorities had not given notification of those measures, which had not, moreover, been evaluated, let alone authorised by the Commission in that decision.
29      The first part of the conclusions to the letter at issue is worded as follows:
‘For the reasons set out above, I consider that in the Construction Decision, the Commission dealt with the relevant matters mentioned in your letter, and in particular with the railway fees and the gratuitous use of State property.’
30      With regard to those measures, it should be noted that the letter at issue is a confirmatory measure, in so far as the Commission simply referred to the assessment contained in the construction decision. Moreover, contrary to the applicants’ interpretation, the Commission did not deal with the issue of whether the contested measures constitute State aid.
31      That conclusion is without prejudice to whether, notwithstanding the fact that the railway charges were mentioned only briefly in recital 58 of the construction decision and that the free use of marine areas and parts of the seabed was not even mentioned in that decision, those measures were nonetheless addressed implicitly, inasmuch as they form an integral part of the structure of financing of the notified project.
32      Even if it were accepted that the applicants’ criticisms were well founded, it must be borne in mind that, in the covering letter enclosing the construction decision sent to the applicants, the Commission, expressly referring to the complaint, stated that ‘on 23 July 2015 [it] had adopted a decision on the measures in question’, that is, the measures contested by the complaint.
33      As a consequence, by the covering letter, the Commission adopted a definitive position on the measures contested by the complaint. Therefore, any challenge concerning whether or not the Commission actually addressed those two measures in the construction decision should be directed at that decision or, as the case may be, the covering letter.
34      Furthermore, the applicants have brought an action for the annulment of that decision (Case T‑630/15, Scandlines Danmark and Scandlines Deutschland v Commission), which, however, did not initially concern the two measures in question. It is only in response to the letter at issue and the defence lodged in the present case — documents in which the Commission argued that the construction decision also dealt with both those measures — that the applicants introduced new pleas, alleging that, in the event that the Court should share the Commission’s position, it should also annul that decision (see paragraph 17 above).
35      In the light of those circumstances, the Court finds that, following the construction decision and the covering letter, the applicants 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. Therefore, in so far as it refers to the construction decision in connection with the railway charges and the use of State-owned property, the first part of the conclusions to the letter at issue constitutes a confirmatory measure, which cannot form the subject matter of an action for the purpose of Article 263 TFEU (see, to that effect, judgments of 26 January 2010, Internationaler Hilfsfonds v Commission, C‑362/08 P, EU:C:2010:40, paragraph 52 and the case-law cited, and of 22 May 2012, Sviluppo Globale v Commission, T‑6/10, not published, EU:T:2012:245, paragraph 22 and the case-law cited).
36      That conclusion is not altered by the argument that the Commission was not given notification of the measures in question and that they were not examined or approved by it.
37      Indeed, it should be noted that, irrespective of whether notification was given of those measures or whether they were examined, following the covering letter, the applicants were 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 (see paragraphs 32 and 33 above).
38      Similarly, it is necessary to reject the argument, put forward by the applicants in the alternative, based on the judgment of 31 May 2017, DEI v Commission (C‑228/16 P, EU:C:2017:409, paragraphs 33 to 35), that an action for annulment of a confirmatory decision is admissible only if the decision confirmed has become definitive in relation to the person concerned because no action has been brought within the prescribed period, which is not the case here as the applicants have brought proceedings in respect of the construction decision.
39      It should be noted that in the case which gave rise to the judgment of 31 May 2017, DEI v Commission (C‑228/16 P, EU:C:2017:409), by the order appealed against, the General Court had found that there was no need to rule on the action for annulment of a Commission decision rejecting definitively a complaint lodged by the applicant, on the ground that, subsequently, a decision not to raise any objection to the aid measures that were the subject of the complaint had repealed and formally replaced the initial decision. In that regard, the Court of Justice found that the second decision merely confirmed the first decision, since, following a review of the information provided to it, the Commission simply reiterated its refusal to open the formal investigation procedure, without, in fact, adding anything new. As a consequence, the first decision had not been withdrawn by the second. According to the Court of Justice, to accept that, in such a situation, the adoption by the Commission of a new decision would mean a ruling that there was no need to adjudicate on the action for annulment brought against the initial decision would be to impede the effectiveness of the judicial review (see, to that effect, judgment of 31 May 2017, DEI v Commission, C‑228/16 P, EU:C:2017:409, paragraphs 36 and 37).
40      In the present case, on the other hand, the part of the letter at issue concerning the railway fees and the free use of State-owned property is not in the nature of a decision, as it simply informed the applicants that the issue had already been addressed in the construction decision, which is the subject matter of an action brought by the applicants. The purpose of that part of that letter is therefore neither to replace nor revoke the construction decision.
41      Accordingly, in those circumstances, the applicants cannot further call into question the construction decision by bringing an action against the part of the letter at issue relating to the railway charges and the free use of State-owned property, as that would amount to allowing them to circumvent the time limit for bringing an action laid down in Article 263 TFEU.
42      The action must therefore be rejected as inadmissible in so far as concerns the part of the letter at issue concerning the railway fees and the free use of State-owned property.
Whether the letter at issue constitutes a preparatory act in so far as concerns certain aid measures relating to the planning phase
43      By their third to eighth pleas, the applicants submit, in essence, that the Commission erred in law by finding in the letter at issue that certain measures relating to the planning phase of the project constituted existing aid authorised by the planning decision and that, to the extent that they were not covered by that decision, those measures were, in any event, authorised by the construction decision.
44      In that regard, it is appropriate to summarise the content of the relevant measures.
45      In the letter of formal notice, the applicants claimed that the Commission had not taken into account, in the construction decision, inter alia the following aid measures: capital injections, State guarantees, State loans and tax advantages in breach of the planning decision.
46      In the statement of reasons in the letter at issue, the Commission examined those measures and, under the heading ‘Conclusion as regards the measures in the Planning Decision’, concluded as follows:
‘For the reasons indicated above, my view is that the measures mentioned in your letter are covered by the Planning Decision and do not constitute new aid. Should you have information to the contrary you are invited to inform the Commission of the same within one month of receipt of the present letter.
Furthermore, and in any event, I note that the assessment in the Construction Decision covered all costs related to the whole Fixed Link project (including the measures covered by the Planning Decision). To the extent that some cost for the Planning Phase would not be covered by the authorisation in the Planning Decision, it is in any event authorised by the Construction Decision and would for that reason alone not constitute new aid.’
47      In the second part of the conclusions to the letter at issue, the Commission concluded as follows:
‘As to the tax measures and the alleged misuse of aid during the planning phase, the Commission considers that the facts and points of law that you have put forward do not provide sufficient grounds to show, on the basis of a prima facie investigation, the existence of unlawful aid. I would invite you to submit any comments you may have within a period of one month from the receipt of this letter, in absence of which the Commission will deem the complaint to have been withdrawn.’
48      It should also be noted that Article 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) 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.’
49      In the light of the foregoing, it must be concluded that, in the letter at issue, the Commission examined the applicants’ claims, informed them of its preliminary view that there were not sufficient grounds for concluding that the alleged aid measures involved the grant of unlawful aid and invited them to submit their comments.
50      It is clear that, with regard to certain aid measures relating to the planning phase, the letter at issue is a preparatory measure for the purpose of Article 24(2) of Regulation 2015/1589 and does not therefore constitute an act open to challenge (see, to that effect, judgment of 18 November 2010, NDSHT v Commission, C‑322/09 P, EU:C:2010:701, paragraph 48, and order of 9 January 2012, Neubrandenburger Wohnungsgesellschaft v Commission, T‑407/09, not published, EU:T:2012:1, paragraphs 29 to 33).
51      Furthermore, the applicants replied to the request to submit their comments by letter of 30 October 2016 and, in its pleadings, the Commission stated that it was ‘examining the content of that submission’ and that it would ‘prepare a decision in due course’, a statement which the applicants ‘welcomed’ in their pleadings.
52      It should also be noted that, as observed by the Commission, in their reply the applicants do not even dispute the Commission’s argument that, in so far as concerns certain aid measures relating to the planning phase, the letter at issue constitutes a preparatory measure.
53      Indeed, the applicants maintain that the Commission invited them to submit comments only on the finding that the planning decision authorised the planning measures, but not in so far as concerns the claim that the planning measures were in any event covered by the construction decision. According to the applicants, that claim therefore constitutes a definitive conclusion, which is open to challenge before the Court. They rely on the second part of the conclusion in the letter at issue, in which the Commission sets out its position and invites them to submit their comments only ‘as to the tax measures and the alleged misuse of aid during the planning phase’ (see paragraph 47 above).
54      In any event, that argument cannot succeed either.
55      The Commission’s finding that the planning measures are covered by the construction decision was put forward in the alternative (‘in any event’) and is set out in the ‘grounds’ of the letter at issue, under the heading ‘Conclusion as regards the measures in the Planning Decision’, and was not repeated in the actual conclusion, which corresponds to the ‘operative part’ of that letter.
56      It should also be noted that the request to submit comments refers, in general terms, to ‘the tax measures and the alleged misuse of aid during the planning phase’ (see paragraph 47 above).
57      Contrary to the claims made by the applicants, there is nothing to support the conclusion that that request is limited to the Commission’s main conclusion that the measures in question were examined in the planning decision. On the contrary, it is worded in sufficiently general terms to include the alternative conclusion that those measures were, in any event, examined in the construction decision. It would, furthermore, be illogical to infer from the form of words referred to above, interpreted in the context of the grounds of the letter at issue, that the Commission intended implicitly to confine the comments to the main conclusion of its arguments, while at the same time considering that its alternative conclusion was definitive.
58      As a consequence, the Court finds, with regard to certain aid measures relating to the planning phase, that the letter at issue is a preparatory measure, which does not constitute an act open to challenge for the purpose of Article 263 TFEU.
59      The action must therefore be dismissed as inadmissible in so far as concerns certain aid measures relating to the planning phase.
The ninth plea in law, alleging that the Commission infringed the obligation to initiate the formal investigation procedure
60      In essence, by the first part of the ninth plea, the applicants contend that the length and circumstances of the preliminary examination procedure disclosed serious difficulties which should have led the Commission to initiate the formal investigation procedure, whereas, by the second to ninth parts of that plea, they simply refer to arguments put forward in the first to eighth pleas, which challenge the Commission’s findings on the ground that they are unfounded, in order to show that the statements made in the letter at issue raised serious difficulties, which should have prompted the Commission to initiate the formal investigation procedure.
61      The Commission contends that the ninth plea is inadmissible, on the ground that no decision, implicit or otherwise, refusing to initiate the formal investigation procedure was taken and there is therefore no act to be annulled.
62      It is sufficient in that regard to note that, in relation to the first to eighth pleas, it was concluded that the letter at issue does not constitute an act open to challenge for the purpose of Article 263 TFEU. Moreover, there is no evidence to support the conclusion that, by the letter at issue, the Commission closed the preliminary examination procedure provided for in Article 4 of Regulation 2015/1589 or that it was required to initiate the formal investigation procedure or adopt other decisions.
63      The ninth plea must therefore be rejected as ineffective.
The 10th plea, alleging a defective statement of reasons
64      By their 10th plea, the applicants claim, in essence, that in the letter at issue the Commission failed to state the reasons for its position concerning the railway charges, omitting to explain why the railway charges did not entail any aid.
65      In that regard, it is sufficient to note that the obligation to state reasons applies only to acts open to challenge (see, to that effect, judgment of 1 October 2009, Commission v Council, C‑370/07, EU:C:2009:590, paragraph 42), and that, as concluded in the assessment of the first to ninth pleas set out above, the letter at issue does not constitute an act open to challenge.
66      Therefore, the 10th plea must be rejected as ineffective.
67      Moreover, it should be noted that the applicants treat the statement of reasons in the letter at issue in the same way as the merits of those reasons (see, to that effect, judgment of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 67).
68      In the letter at issue, the Commission simply stated that the railway charges had been dealt with in the construction decision. That conclusion, irrespective of whether it is well founded, shows, to the requisite legal standard, the reason why the Commission did not deal with those measures in the letter at issue, disclosing in a clear and unequivocal fashion the reasoning followed by the Commission, in accordance with the relevant case-law (see, to that effect, judgment of 3 March 2010, Freistaat Sachsen and Others v Commission, T‑102/07 and T‑120/07, EU:T:2010:62, paragraph 180 and the case-law cited).
69      It follows that, first, the applicants were in a position to put forward their arguments in support of the first to ninth pleas and, second, the Court has been able to carry out its assessment in the light of all the arguments raised by the applicants.
Costs
70      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.
71      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
RegistrarPresident
*      Language of the case: English.