Provisional text
OPINION OF ADVOCATE GENERAL
RANTOS
delivered on 27 November 2025 (1)
Case C‑337/24 P
Kingdom of Denmark
v
European Commission
( Appeal – State aid – Denmark – Public financing of the Fehmarn Belt fixed rail-road link – Measures granted by Denmark to the public undertaking Femern – Decision classifying those measures as ‘State aid’ – Article 107(1) TFEU – Concepts of ‘undertaking’ and ‘economic activity’ – Exercise of public powers – Activities involving the construction and operation of the Fixed Link in accordance with a business model – Existence of competing undertakings on the market for rail and road transport services across the Fehmarn Belt )
Introduction
1.        By its appeal, the Kingdom of Denmark seeks to have set aside the judgment of the General Court of the European Union of 28 February 2024, Denmark v Commission (T‑364/20, ‘the judgment under appeal’, EU:T:2024:125), by which the General Court dismissed its
action for annulment of Commission Decision C(2020) 1683 final of 20 March 2020 on the State aid SA.39078 – 2019/C (ex 2014/N) which Denmark implemented for Femern A/S (‘the decision at issue’), (2) in that it classified as ‘State aid’, within the meaning of Article 107(1) TFEU, the capital injections and a combination of State loans and State guarantees in favour of Femern in the context of the Fehmarn Belt fixed rail-road link project. That project consists of (i) a rail and road tunnel (‘the Fixed Link’) (3) and (ii) other ancillary infrastructure (together, ‘the project’).
2.        The present case provides the Court with the opportunity to clarify its case-law on the classification as ‘State aid’ within the meaning of Article 107(1) TFEU in the context of measures for financing large road and rail infrastructure projects and, more specifically, to consider whether activities involving the construction and the operation of an item of large-scale infrastructure, entrusted by a Member State to an entity controlled by that State, constitute, together or separately, the exercise of public powers or, at the very least, a non-economic activity.
Background to the dispute
3.        The project, approved by the treaty between the Kingdom of Denmark and the Federal Republic of Germany concerning the Fehmarn Belt fixed link, signed on 3 September 2008 and ratified in 2009 (‘the Fehmarn Belt Treaty’), was preceded by a planning phase, the financing of which, in particular with regard to the Fixed Link, was notified to and approved by the Commission. (4)
4.        Following an update of the initial estimates, the total costs for the planning and construction of the Fixed Link were estimated at 52.6 billion Danish kroner (DKK) (approximately EUR 7.1 billion) and those relating to the project were estimated at DKK 62.1 billion (approximately EUR 8.4 billion).
5.        In accordance with the applicable international and national rules, (5) two public entities were entrusted with implementation of the project. The first, Femern, established in 2005, was responsible for the financing, construction and operation of the Fixed Link, (6) of which it will subsequently acquire ownership, whereas the second, Femern Landanlæg A/S, established in 2009, was appointed to manage the construction and operation of other infrastructure. (7) That project is financed by Femern and Femern Landanlæg through capital injections, state-guaranteed loans and loans which have been granted by the Danish authorities. As from when the Fixed Link is put into service, Femern will receive charges from users to repay its debt and will also pay dividends to Femern Landanlæg, which will use them to repay its own debt.
6.        The project has been the subject of a number of Commission decisions and judgments of the General Court and the Court of Justice. In particular, after adopting an initial decision not to raise objections to the measures notified by the Danish authorities, (8) which was partially annulled by two judgments of the General Court, (9) which were upheld on appeal by a judgment of the Court of Justice, (10) the Commission adopted the decision at issue. (11) By that decision, the Commission first concluded that the measures consisting of capital injections and a combination of State loans and State guarantees in favour of Femern, implemented by the Kingdom of Denmark for the planning, construction and operation of the Fixed Link, constituted ‘State aid’ within the meaning of Article 107(1) TFEU and, second, considered those measures to be compatible with the internal market on the basis of Article 107(3)(b) TFEU. (12)
The procedure before the General Court and the judgment under appeal
7.        In support of its action for annulment of the decision at issue, the Kingdom of Denmark raised two pleas in law, the first alleging that the Commission had wrongly found that the financing of Femern constituted State aid within the meaning of Article 107(1) TFEU (13) and the
second that the Commission had erred in its assessment in finding that Femern exercised an economic activity in competition with third parties even before the Fixed Link was brought into service. (14)
8.        With regard to the arguments seeking to prevent the construction and operation of the Fixed Link from being considered as falling within the exercise of an ‘economic activity’ by Femern and, therefore, from Femern being classified as an ‘undertaking’ within the meaning of Article 107(1) TFEU, the General Court, confirming the assessment carried out by the Commission in recitals 188 to 198 of the decision at issue, found, in essence, that the activities involving the construction and operation of the Fixed Link by Femern did not fall within the exercise of public powers (15) but constituted economic activities. (16)
9.        As regards, in particular, the activity involving the construction of the Fixed Link, the General Court, like the Commission, inferred from the judgment in Mitteldeutsche Flughafen and Flughafen Leipzig-Halle v Commission (17) that, where an infrastructure is the subject of economic operation and the fees for its use are the major source of financing, its construction, the activities involving the construction and operation of that infrastructure are, in principle, economic activities.
The procedure before the Court of Justice and the forms of order sought
10.      On 7 May 2024, the Kingdom of Denmark lodged an appeal against the judgment under appeal. It claims that the Court should set aside that judgment, and, principally, that the Court should annul Article 2 of the decision at issue in so far as it finds that ‘the measures consisting of capital injections and a combination of State loans and State guarantees in favour of Femern …, which Denmark at least partially put into effect unlawfully, constitute State aid within the meaning of Article 107(1) [TFEU]’, and order the Commission to pay the costs; and, in the alternative, the Kingdom of Denmark claims that the Court of Justice should refer the case back to the General Court and reserve the costs.
11.      The Commission contends that the appeal should be dismissed and the Kingdom of Denmark should be ordered to pay the costs.
12.      The parties presented oral argument and answered the questions put by the Court at the hearing on 9 September 2025.
Analysis
13.      The Kingdom of Denmark relies on three grounds in support of its appeal, by which it essentially challenges the classification of the financing of the construction and operation of the Fixed Link as ‘State aid’ and, more specifically, the classification of Femern, a public entity responsible, inter alia, for the construction and operation of that link, as an ‘undertaking’ within the meaning of Article 107(1) TFEU. (18)
14.      Without bringing a cross-appeal, the Commission expresses doubts as to the admissibility of the action at first instance, on the ground that it sought the annulment only of the first sentence of Article 2 of the decision at issue, without in any way challenging the second sentence of that article, which, declaring the aid measure compatible with the internal market, contains an implied decision finding that the measure in question constitutes State aid. That argument seems to me, at first sight, manifestly unfounded. (19)
15.      With regard to the substance of the case, I note, as a preliminary point, that, although, in principle, the sovereign decision of a Member State to carry out and construct an infrastructure – in particular as part of Important Projects of Common European Interest (‘IPCEIs’) – falls within the exclusive competence and powers of the Member States, their financing by the public authorities is normally subject to Commission supervision of State aid, in so far as those projects are intended for economic use. That supervision concerns both the question of the classification of the State intervention as ‘State aid’ under Article 107(1) TFEU and, if it is so classified, the compatibility of that intervention with the internal market, in particular under
Article 107(3)(b) TFEU. (20)
16.      As regards the question whether Femern constitutes an ‘undertaking’ within the meaning of Article 107(1) TFEU, (21) which is the subject of the three grounds of appeal, I recall that according to the settled case-law of the Court, an ‘undertaking’ is any entity engaged in an economic activity, irrespective of its legal status and the way in which it is financed, (22) and that any activity consisting in offering goods and services on a given market is an ‘economic activity’, (23) regardless of whether or not that activity gives rise to profits. (24)
17.      The concept of ‘economic activity’ therefore constitutes a precondition for the application of Article 107(1) TFEU. However, the case-law of the Court has not yet established an exhaustive definition of that concept, (25) which is constantly evolving and, in any event, must be applied on a case-by-case basis. In principle, an activity which, by its nature, its aim and the rules to which it is subject, is connected with the exercise of public powers (26) or outside the sphere of economic activity, is not economic in nature. (27)
18.      In the following points of this opinion, I will analyse the grounds in the order they are raised in the appeal, that is to say, first, the arguments relating to the existence of public powers
(first ground), then those relating to the existence of an economic activity (second ground), and, finally, those relating more specifically to the classification of activities involving the construction of the Fixed Link as an economic activity (third ground).
First ground of appeal
19.      The first ground of appeal alleges an error of law in the interpretation of the concept of the ‘exercise of “public powers”’ and the failure, in that regard, to carry out an overall assessment of the activities entrusted by the Danish State to Femern. (28) That ground is based, in essence, on three arguments.
20.      By its first argument, the Kingdom of Denmark claims that the General Court was wrong to restrict the concept of the ‘exercise of “public powers”’ solely to activities linked with the ‘essential functions’ of the State, (29) whereas a State may act by exercising public power ‘in respect of any activity’. (30)
21.      I would point out that, in the judgment under appeal, the General Court found that the Commission did not err in law in considering that an entity acts as public authority or by exercising public powers where its activity is linked with the ‘essential functions’ of the State by its nature, its aim and the rules to which it is subject, (31) and noted that the concept of ‘activity connected with the exercise of public powers’ covers, in particular, according to the case-law of the Court, activities which involve the use of ‘prerogatives that derogate from the generally applicable rules of law’ such as those ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. (32) In addition, the General Court rejected the argument that Member States are free to determine the activities which form part of public powers since the concepts of ‘undertaking’ and ‘economic activity’ are objective concepts which follow directly from the FEU
Treaty and which depend on elements of fact and not on the choices or subjective assessments of the national authorities. (33)
22.      In that regard, I would emphasise that, although according to the settled case-law of the Court, activities which fall within the exercise of public powers are not economic in nature, (34) the Court has not, to date, provided an exhaustive definition of the concept of ‘exercise of public powers’ or of the similar concept of ‘(connection with) the exercise of public authority’. (35)
23.      The Court has found that public authority is exercised, in particular, in connection with the exercise of public powers, (36) whilst it has ruled out such a classification for measures, even binding ones, adopted by organisations regulating certain professions in relation to their members. (37) As regards, more specifically, the financing of infrastructure, in its judgment in Aéroports de Paris v Commission, (38) the Court, in a reversal of established practice and case-law, confirmed the distinction made by the General Court between, on the one hand, the purely administrative activities carried out by the airport infrastructure management entity, which fell within the exercise of public powers (such as policing), and, on the other hand, the activities relating to the management of such infrastructure, which did not fall within the exercise of such powers. (39) In addition, in its judgment in Leipzig-Halle, the Court of Justice
stated that the same considerations applied to the construction of an airport runway. (40)
24.      In paragraph 17 of its Notice on the notion of State aid, the Commission considers, on the basis of that case-law, that an entity may be deemed to act by exercising public power where the activity in question forms part of the ‘essential functions of the State’ or is connected with those functions by its nature, its aim and the rules to which it is subject. (41)
25.      In my view, although the Court has not yet explicitly restricted the concept of ‘public powers’ to that of ‘essential functions of the State’, as applied by the Commission and reproduced by the General Court, (42) it is clear from the case-law of the Court cited above that, in order to be classified as an ‘entity exercising prerogatives of public authority’, the entity concerned must have been granted powers by law which exceed the capacities normally attached to a body governed by private law and which are characteristic of public powers or administration, such as, inter alia, the right to adopt regulatory acts or decisions in respect of natural or legal persons, to penalise them or to adopt compulsory and binding certifications. It therefore seems to me that the concept at issue, by virtue of the fact that it refers to public powers, necessarily has a ‘subjective’ connotation, in the sense that, as the General Court rightly points out in paragraph 53 of the judgment under appeal, that concept requires that the entity in question, independently of the activity carried out, possesses ‘prerogatives that derogate from the generally applicable rules of law’.
26.      In addition, I cannot agree with the argument of the Kingdom of Denmark
that activities must be regarded as falling within the exercise of public powers simply because they are classified as such in the Member State concerned. (43) As the General Court rightly points out in paragraph 62 of the judgment under appeal, the concepts of ‘undertaking’ and ‘economic activity’ (like those of the other elements constituting State aid) are objective concepts which follow directly from the FEU Treaty and which depend on elements of fact and not on the choices or subjective assessments of the national authorities. (44) Furthermore, the fact that a Member State reserves certain activities for
State entities does not mean that those entities are vested with public powers under EU law.
27.      Accordingly, I consider that the General Court did not err in law when, in paragraphs 50 to 57 of the judgment under appeal, it found, thus confirming the Commission’s assessment in the decision at issue, that an entity acts in the exercise of public powers when its activity is linked with ‘essential functions of the State’ by its nature, its aim and the rules to which it is subject.
28.      In any event, even assuming that the reference to ‘essential functions of the State’, by its very general nature, calls for an excessively strict interpretation of the concept of the ‘exercise of public powers’, it must be noted that as regards the construction and operation of the Fixed Link, the Kingdom of Denmark has not shown (or even alleged), that Femern has been granted, under the national legislation at issue, any specific award that could classify it as performing functions which, even if they do not constitute ‘essential functions of the State’, at least confer on it powers beyond those of any other public or private undertaking and typical of public authorities or administration. (45)
29.      By its second argument, the Kingdom of Denmark submits that the General Court failed to examine the method used by the Commission to determine whether Femern’s activities could be regarded as falling within the exercise of public powers and merely found on the sole ground that the project provided for the levying of charges on users, that Femern exercised an economic activity, without examining whether the Commission had carried out an overall assessment of Femern’s activities. (46)
30.      I would point out that, in the decision at issue, the Commission first concluded that the arguments put forward by the Danish authorities concerning the aim of the activity under examination, its nature and the rules governing it were not sufficient to establish that Femern acted by exercising public authority. (47) It then relied on two indicators demonstrating the existence of an ‘economic activity’, that is to say, on the one hand, the fact that the Kingdom of Denmark itself had opted for an economic model based on the levying of charges on users of the Fixed Link and, on the other, the fact that the relevant market is the market for crossings of the Fehmarn Belt, on which a ferry operator is active. (48) Finally, the Commission ruled out that Femern had been granted specific public powers, given that, first, the construction and commercial exploitation of large infrastructure projects do not, in itself, constitute an exercise of public powers, secondly, the fact that Femern does not pursue profit maximisation was not decisive either and, in this case, the Danish authorities had introduced a market mechanism and thirdly, despite the intervention of the Ministry of Transport in setting the fees for using the Fixed Link, Femern has a certain margin to decide its own pricing. (49)
31.      Contrary to the position taken by the Kingdom of Denmark, it does not appear to me that the Commission started from the premiss that the payment of charges by users attested, in itself, to the logic and the economic nature of the activity, so that it was impossible to establish that Femern’s activities nevertheless display the characteristics of the activities of a public authority. (50)
32.      In that regard, in paragraphs 77 to 89 of the judgment under appeal, the General Court examined and rejected the arguments put forward by the Kingdom of Denmark concerning, first, the existence of close supervision by the public authorities, (51) secondly, the fact that Femern was entrusted with implementing of international obligations, (52) thirdly, the fact that the construction and operation of rail and road infrastructure are not
liberalised in Denmark (53) and fourthly, the fact that Femern was entrusted with functions as highway authority and as rail infrastructure manager and with preparing safety plans for the Fixed Link. (54) In paragraph 90 of its judgment, the General Court found that the information communicated to the Commission by the Danish authorities during the formal investigation procedure did not constitute elements which, ‘taken individually or as a whole’, were capable of leading to the finding that the entirety of Femern’s activities at issue, namely the construction and operation of the Fixed Link, are connected with the exercise of public powers.
33.      Although the General Court simply rejected, in essence, the elements put forward by the Danish authorities ‘taken individually or as a whole’ (55) without carrying out a genuine overall analysis, that analysis is not vitiated by an error of law. It is necessary to take into account that, after having observed that the public supervision and obligations to which Femern is subject did not confer public powers on it, (56) the General Court held that the argument based on the obligations arising from the Fehmarn Belt Treaty was not relevant, which is not contested in the present appeal, and noted, without being challenged further by the Danish authorities on that point, that the fact that the rail and road infrastructure in Denmark was not liberalised did not affect the market concerned by the activity involving the operation of the Fixed Link (57) and that the public powers alleged by the Kingdom of Denmark did not relate to the relevant market either. (58)
34.      Therefore, if its examination of each of those arguments is correct, which seems to be the case, I can see no error in the ‘method’ of analysis used by the General Court. To the extent that, following an individual and detailed assessment of each of the arguments put forward by the Kingdom of Denmark, the General Court rejected the relevance or probative value of each of them, an overall assessment of those arguments, provided that such an assessment is possible, cannot lead to an outcome different from that which arises from their individual analysis. (59)
35.      By its third argument, the Kingdom of Denmark submits that, in contrast to the assessment carried out by the General Court, (60) the construction and operation of Danish road and rail infrastructure are not liberalised and therefore fall within the exercise of public powers.
36.      In that regard, it is clear that the fact that the Kingdom of Denmark has not liberalised its national road and rail infrastructure does not mean that the activities involving the construction and operation of the Fixed Link fell within the exercise of public powers. In addition, regardless of its role in markets linked to the national road and rail network, Femern is also deemed to operate in the international market for crossings of the Fehmarn Belt, which is the market that was the subject of the Commission’s assessment of the existence of State aid. (61)
37.      In the light of all of the foregoing, I propose that the first ground of appeal should be rejected.
Second ground of appeal
38.      The second ground of appeal, which is raised in the alternative, alleges errors of law made by the General Court in its assessment of
whether the activities involving the construction and operation of the Fixed Link entrusted to Femern constituted, in whole or in part, non-economic activities. (62) By that ground of appeal, which is based around five arguments, the Danish authorities, after alleging that the General Court had failed to carry out an overall assessment of the arguments raised in the action at first instance, (63) criticise the General Court’s assessment of the two elements on which the Commission’s assessment is essentially based, that is to say, first, the fact that the Fixed Link project is based on ‘economic logic’ (64) and, second, the existence of a market open to competition. (65)
39.      As I have noted in point 16 of this Opinion, the case-law of the Court of Justice classifies as an ‘undertaking’ any entity engaged in an economic activity, irrespective of its legal status and the way in which it is financed and defines ‘economic activity’ as any activity consisting in offering goods or services on a given market, regardless of whether or not that activity generates profits. That said, the outlines of those concepts are constantly evolving and may also vary significantly from one sector to another.
40.      Specifically, the application of the concept of ‘economic activity’ in the context of the development of large-scale infrastructure, (66) such as the Fixed Link, remains highly controversial. Whilst the construction and operation of infrastructure traditionally was considered to fall outside the State aid rules, (67) the Court has acknowledged that, as a result of market developments and the fact that infrastructure which was previously used solely in the public interest has been put to commercial use, those activities are now, in most cases, subject to State aid rules. This is, inter alia, the case with airport infrastructure following the judgments in Aéroports de Paris and in
Leipzig-Halle . (68)
41.      In the present case, when assessing the existence of an ‘economic activity’, the General Court confirmed the Commission’s conclusion, based on the two abovementioned indicators, namely, first, the provision of a transport service for remuneration (in other words, according to the General Court’s expression, the operation of the Fixed Link according to an ‘economic logic’) and second, the existence of a competitive market for the same services.(69)
42.      In that regard, it is necessary at the outset, to reject the first argument put forward by the Kingdom of Denmark, alleging that the General Court failed to carry out an overall analysis of the evidence under examination. The General Court first confirmed the Commission's assessment of the existence of an economic activity, based on the two relevant indicators mentioned above (70) and at the same time ruled out that the evidence put forward by the Kingdom of Denmark and the intervening parties (71) could call that assessment into question. It therefore seems to me that the General Court cannot be criticised for failing to take those arguments into account in their entirety. (72)
43.      It is therefore necessary to examine whether, in accordance with the second to fifth arguments put forward by the Kingdom of Denmark, the General Court’s assessment is vitiated by errors of law. In my view, that examination, which concerns the very essence of the concept of ‘economic activity’, can adopt two alternative approaches: the first consisting of an ‘objective’ interpretation of that concept, in line with the recent practice of the Commission and the corresponding case-law of the General Court, and the second of a ‘pragmatic’ interpretation of that concept, which, in my view, is more appropriate for upholding the balance of powers between the Member States and the Commission.
44.      The first approach proposed supports the assessment of the Commission and the General Court. It is based on the two indicators mentioned above, namely the ‘economic logic’ of the project and the existence of a competitive market.
45.      In the first place, with regard to the ‘economic logic’ of the project, it follows from the settled case-law of the Court of Justice that services normally provided for remuneration are services that may be classified as ‘economic activities’. The essential characteristic of remuneration lies in the fact that it is consideration for the service in question. (73) In the present case, the fact that access to the infrastructure is subject to payment of a charge is, as the General Court has established, a strong indication that the infrastructure concerned is the subject of economic exploitation. (74) However, the fact that the charges in question are meant to finance the construction of the Fixed Link and internal hinterland connections and that, as a result, Femern will be prevented from maximising its profits cannot, in principle, call that finding into question. It is apparent from the settled case-law of the Court of Justice, set out in point 16 of this Opinion, that any activity consisting in offering goods or services on a given market is an ‘economic activity’, regardless of whether or not that activity generates profits. (75)
46.      In that regard, the arguments put forward by the Kingdom of Denmark do not appear to call into question the assessment of the General Court. First, the argument that Femern operates in a closed economic circuit and in a sector of activity that is neither liberalised nor privatised cannot succeed, in so far as, as I stated in point 33
of this Opinion, the General Court correctly found, without being challenged on that point by the Kingdom of Denmark in its appeal, that the lack of liberalisation was not linked to the market concerned by the operation of the Fixed Link, which is to say that of transport services across the Fehmarn Belt. Secondly, the argument based on the intervention of the Ministry of Transport in setting the charges cannot be accepted either, since the fact that an entity is subject to prices regulated by the State is not a decisive criterion for determining whether it exercises an economic activity. (76) Finally, the characteristics of the remuneration at issue – in particular the fact that the charges for using the Fixed Link will be determined through the Ministry of Transport – are not sufficient to classify it as a ‘public levy’ or, more specifically, a ‘due’, given that the payment will be made to Femern as consideration for a service which it provides. (77)
47.      In the second place, with regard to the existence of a competitive market, it cannot be disputed that, when the Fixed Link is in operation, Femern’s activity, independently of its economic aims, will have an impact on the transport services provided by ferries across the Fehmarn Belt, which also supports the classification of the operation of the Fixed Link as an ‘economic activity’. (78) It is open to Member States to choose to modernise or develop their transport infrastructure and, in this case, it cannot be ruled out that the construction of new infrastructure such as the Fixed Link may exclude economic operators, such as ferry operators, from the market if their infrastructure or their modes of transport prove to be less advantageous or efficient. However, the fact that the transport service using the Fixed Link may replace, in whole or in part, the ferry services is, in itself, strong evidence of the existence of competition between these two modes of transport. (79) More specifically, the competition does not
concern the infrastructure strictly speaking, but rather the services which Femern provides on it. (80) It is therefore evident that, from a purely economic point of view, Femern, by operating the Fixed Link, will provide services on the market for crossings of the Fehmarn Belt in competition with (or replacing) the profit-making private operators currently present on that market.
48.      In the third place, I consider it useful to add a more general consideration. A relatively broad interpretation of the concept of ‘economic activity’ could be justified in so far as that concept is only a
precondition for the application of the EU rules on State aid and should not be confused with the elements constituting State aid. (81) Demonstration of an ‘economic activity’ simply leads to the possibility of applying Article 107(1) TFEU, on the understanding that, for the purposes of that assessment, it is possible that the measures under examination could escape being classified as ‘State aid’. (82) From that perspective, this first approach is based on an ‘objective’ concept of ‘economic activity’, which takes into account the abstract characteristics of the activity and the possibility that it may be exercised according to an economic logic, regardless of the specific situation of the entity benefiting from the State measures under examination. In addition, such an approach
appears to be consistent with an ‘evolving’ interpretation of the concepts of ‘undertaking’ and ‘economic activity’ within the meaning of Article 107(1) TFEU, in line with the Commission’s practice following the judgments in Aéroports de Paris and in
Leipzig-Halle, and as confirmed by the case-law of the General Court. (83)
49.      Consequently, it does not appear, at first sight, that the General Court erred in law by confirming the Commission’s interpretation of the concept of ‘economic activity’ based on the two indicators referred to above.
50.      However, I am of the opinion that this first approach,
which seems
consistent with the case-law of the Court, may prove to be insufficient to understand the essence of the present case, in particular as regards the assessment of the allegedly ‘economic’ logic of the model for operating the Fixed Link implemented by the Danish authorities. In my view, a closer examination
reveals that this model is only ostensibly grounded in economic logic but,
in reality, is based on a conventional mechanism for public planning of infrastructure of general interest.
51.      As a preliminary point, I would observe that the Fixed Link is a very large item of transport infrastructure, conceived under an international treaty between two Member States, forming an integral part of the European transport networks and co-financed by EU funds. As the Commission points out in the decision at issue, this infrastructure would never have seen the light of day without public intervention. (84) The construction of strategic transport infrastructure at national and trans-European level can only be a matter for
public authorities.
52.      In that regard, the obligation for Femern to use the revenues from the operation of the Fixed Link to repay the loans incurred for its planning and construction, and for internal connections, shows that there is no direct ‘commercial link’ between the amount of charges paid by users of that link and the amount of services provided to those users, (85) which precludes that link from being operated commercially. Furthermore, while it is true that the fact that an activity does not necessarily generate profits is, in principle, irrelevant for the purpose of classifying or not classifying it as an ‘economic activity’, it is difficult to imagine that an activity could be regarded as ‘economic’ if it does not, at least in the long term, bring in revenue which allows it to generate profit or, as a minimum, cover the costs incurred. (86)
53.      Indeed, the intervention of the public authorities (in this case, the Ministry of Transport) in setting the charges, which considerably limits Femern’s room for manoeuvre in determining those charges, tends to reinforce that idea.
54.      In addition, although, in accordance with the functional nature of the concept of ‘State aid’, the classification of an activity as economic or non-economic at national level is not decisive for the classification of that activity under EU law, (87) the specific conditions under which an activity is governed by the national legislature cannot be entirely irrelevant in that regard. (88)
55.      With regard to the second indicator cited by the Commission in support of its finding that there is ‘economic activity’, it is clear that, once completed, the new infrastructure will enable Femern to provide transport services across the Fehmarn Belt, which will cause major difficulties, or even foreclosure from the market, for ferry operators. (89) However, in view of the specific and characteristic aspects of the model adopted, the existence of a potential impact on economic operators and thus a certain form of competition on the market for crossings of the Fehmarn Belt is not sufficient in itself to call into question the above finding. (90)
56.      Ultimately, unlike the first approach, which is based on an ‘objective’ conception of the concept of ‘economic activity’, (91) this second interpretation is based on a conception of that notion which could be defined as ‘pragmatic’. In other words, in order to examine whether there is an ‘economic activity’, it is my view that is necessary to take into account not (or rather, not only) the abstract nature or potential characteristics
of the activity, but (also) the characteristics of the entity exercising that activity and the specific arrangements for the exercise thereof.
57.      In view of the foregoing, I propose that the second ground of appeal should be upheld and, consequently, that the judgment under appeal should be set aside, without it being necessary, in the context of the second approach, to examine the third ground of appeal. (92)
Third ground of appeal
58.      The third ground of appeal, raised as a further alternative, (93) alleges that the General Court erred in law in that it wrongly considered that the construction of the Fixed Link constitutes an economic activity open to competition, like the operation of that link. (94)
59.      In that respect, I note that, in recital 198 of the decision at issue, after having concluded that the operation of the Fixed Link constituted an economic activity, the Commission merely added that it followed from the judgment in Freistaat Sachsen and Land Sachsen-Anhalt v Commission (95) that the construction of the infrastructure operated by Femern also constitutes an economic activity, without providing any further explanation in that regard. The Commission therefore based its assessment exclusively on an application by analogy of the principles identified by the Court of Justice in that judgment.
60.      The General Court, relying on the same case-law, found that, where there is a market for transport services on which profit-making operators are already present, the construction of a new transport infrastructure intended to be the subject of economic exploitation is just as likely as the extension of a pre-existing infrastructure to disrupt competition. (96) It also considered that, although Femern was not yet present on the relevant market during the construction phase of the Fixed Link, that activity was inseparable from the future economic operation of the infrastructure on a market on which a profit-making operator intervenes. (97)
61.      As a preliminary point, I would note that the construction of infrastructure is, in itself, an economic activity. However, in this case, Femern is not constructing the Fixed Link but is acting, essentially, as an intermediary for the Danish authorities, by awarding the construction work to undertakings on that market by means of public contracts. The construction activity managed by Femern would therefore constitute, according to the Commission’s assessment endorsed by the General Court, an economic activity simply as an activity indissociably linked to the operation of the Fixed Link, in accordance with the judgment in Leipzig-Halle. (98)
62.      In that regard, I consider that the circumstances of the present case have certain similarities to those which gave rise to the judgments in Freistaat Sachsen and Land Sachsen-Anhalt v Commission (99) and in Leipzig-Halle. In particular, in so far as it is established, according to the first conclusion set out in the second ground of appeal, that the operation of the Fixed Link constitutes the exercise of an economic activity and that the construction of that link is not connected with the exercise of public powers, it could be considered, having regard to the inseparable nature of the construction and operating activities, and the fact that the Fixed Link is intended exclusively for the (economic) activity of operation through the provision of transport services by Femern, that the construction of that link also constitutes an economic activity. (100)
63.      However, those similarities are not sufficient to overcome a fundamental difference between the two cases. The new runway at Leipzig-Halle Airport was intended to be operated by the private operator DHL for at least 90% of the flights made, as stated in an agreement between that company and the airport managers. (101) The commercial use of that infrastructure was therefore quite obvious, and that case fell within the Commission’s practice relating to ‘dedicated infrastructure’. (102) However, the construction of the Fixed Link follows a different logic in that it contributes to the development of national and trans-European transport networks and is not, as a matter of principle, earmarked for any particular economic activity.
64.      It therefore seems to me that the Commission used an incorrect parameter when deeming the construction activity entrusted to Femern to be an ‘economic activity’. (103)
65.      In view of the foregoing, I therefore propose the third ground of appeal should be upheld and, consequently, that the judgment under appeal should be set aside.
The action at first instance
66.      In accordance with Article 61 of the Statute of the Court of Justice of the European Union, the Court of Justice may, where it has quashed the decision of the General Court, itself give final judgment in the matter, where the state of the proceedings so permits.
67.      In that regard, I consider that, if the Court finds that the judgment under appeal should be set aside, it has all the information necessary to give a ruling on the third part of the first plea at first instance, alleging that the finding that Femern is an operator pursuing a commercial policy is incorrect, and on the second part of the second plea, alleging that the Commission was wrong to find that the activities involving the construction and operation of the Fixed Link are inseparable.
68.      More specifically, if the Court were to follow the interpretation suggested in points 49
to 56
of this Opinion, the third part of the first plea at first instance should be upheld and Article 2 of the decision at issue should be annulled. In the alternative, if the Court decides to reject the second ground of appeal but uphold the third ground, the second part of the second plea at first instance should be upheld and, consequently, Article 2 of that decision should also be annulled. (104)
Conclusion
69.      In the light of the foregoing considerations, I propose that the Court of Justice should grant the appeal and annul Commission Decision C(2020) 1683 final of 20 March 2020 on the State aid SA.39078 – 2019/C (ex 2014/N) which Denmark implemented for Femern A/S.
1      Original language: French
2      OJ 2020 L 339, p. 1.
3      More specifically, an immersed tunnel under the Baltic Sea connecting Rødby, on the island of Lolland (Denmark) to Puttgarden (Germany), approximately 19 km in length, which will accommodate both an electrified railway line and a motorway.
4      By its decision of 13 July 2009 in Case N 157/09 – 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 project could not constitute State aid in so far as Femern had acted as a public authority, and, second, that, even if those measures were likely to benefit the future operator of the Fixed Link, they were in any event 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).
5      That is to say, Article 6 of the Fehmarn Belt Treaty and 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 (‘the 2015 Construction Law’).
6      The works relating to the construction of the Fixed Link are carried out by Femern under construction contracts subject to public procurement procedures.
7      Femern Landanlæg is a subsidiary of Sund & Bælt Holding A/S, an undertaking owned by the Danish State. Following the incorporation of Femern Landanlæg, Femern became its subsidiary.
8      Commission Decision C(2015) 5023 final of 23 July 2015 on State aid SA.39078 (2014/N) (Denmark) concerning the financing of the Fehmarn Belt fixed link project (OJ 2015 C 325, p. 5; ‘the Construction Decision’). By that decision, the Commission concluded, inter alia, 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 were compatible with the internal market pursuant to Article 107(3)(b) TFEU.
9      Judgments of 13 December 2018, Scandlines Danmark and Scandlines Deutschland v Commission (T‑630/15, EU:T:2018:942), and of 13 December 2018,
Stena Line Scandinavia v Commission (T‑631/15, EU:T:2018:944). By those judgments, the Court annulled the Construction Decision in so far as the Commission had decided not to raise any objections to the measures granted by the Kingdom of Denmark to Femern for the planning, construction and operation of the Fixed Link.
10      Judgment of 6 October 2021, Scandlines Danmark and Scandlines Deutschland v Commission (C‑174/19 P and C‑175/19 P, EU:C:2021:801).
11      That decision, published in the Official Journal of the European Union on 5 July 2019 (OJ 2019 C 226, p. 5), was adopted at the end of the formal investigation procedure provided for in Article 108(2) TFEU, which was initiated by letter of 14 June 2019 addressed to the Danish authorities.
12      See Article 2 of the decision at issue. Conversely, in Article 1 of that decision, the Commission stated that other measures covered by that decision (namely, the depreciation of assets, the fiscal loss carry forward, the joint taxation regime, the railway fees, the use of State property free of charge and the State guarantees for the derivatives) did not constitute State aid in favour of Femern.
13      The first plea at first instance was divided into four parts, alleging that, in the decision at issue, the Commission had been wrong to find that: (i) Femern’s activities were not connected with the exercise of public authority; (ii) Femern offered transport services on a market in competition with other operators; (iii) Femern was an economic operator pursuing a commercial policy; and (iv) the financing of Femern distorted competition and affected trade between Member States.
14      By its second plea at first instance, the Kingdom of Denmark denied, in essence, that Femern’s activities can be considered to be of an economic nature before the Fixed Link is brought into service. The General Court first examined the first three parts of the first plea and the second plea, which related to the classification of Femern’s activities as activities of an economic nature, before dealing with the fourth part of the first plea, which concerned the conditions relating to the distortion of competition and the effect on trade between Member States, provided for in Article 107(1) TFEU.
15      According to the General Court, an entity acts as public authority or by exercising public powers where its activity is linked with the essential functions of the State by its nature, its aim and the rules to which it is subject.
16      The General Court, just like the Commission, relied on two matters in this regard, that is to say, the fact that access to the Fixed Link will be subject to payment of charges and that Femern will offer transport services for crossing the Fehmarn Belt in competition with an operator seeking to make a profit.
17      Judgment of 19 December 2012, C‑288/11 P, ‘the judgment in Leipzig-Halle’, EU:C:2012:821.
18      The first of those grounds alleges an error of law in the interpretation of the concept of ‘exercise of public powers’ and the General Court’s failure to carry out an overall assessment of the activities entrusted to Femern by the Danish State; the second, raised in the alternative, alleges an error of law in that the General Court failed to examine whether the Commission had carried out the required overall assessment of whether Femern’s activities constituted wholly or partly non-economic activities; the third, raised in the further alternative, alleges an error of law in that the General Court wrongly considered that Femern carried out an economic activity open to competition as from the construction phase of the Fixed Link.
19      Article 2 of the decision at issue is worded as follows: ‘the measures consisting of capital injections and a combination of State loans and State guarantees in favour of [Femern], which Denmark at least partially put into effect unlawfully, constitute State aid within the meaning of Article 107(1) [TFEU]. Following the modification of those measures as set out in the revised notification, they are compatible with the internal market on the basis of Article 107(3)(b) [TFEU]’. The application at first instance brought by the Kingdom of Denmark sought to ‘annul Article 2 of the [decision at issue] in so far as that article states that the measures … constitute State aid within the meaning of Article 107(1) [TFEU]’. In my view, it seems clear that if the Kingdom of Denmark manages to show that, contrary to the Commission’s conclusion in the first sentence of that article, the measures at issue do not constitute State aid, it follows that the
decision at issue will have to
be annulled in its entirety as the decision on the compatibility of those measures with the internal market contained in the second sentence of that provision no longer has any basis.
20      In particular, the financing measures intended to promote the execution of IPCEIs are the subject of the
Communication from the Commission of 30 December 2021 on the criteria for the analysis of the compatibility with the internal market of State aid to promote the execution of IPCEIs (OJ 2021 C 528, p. 10).
21      It follows from the wording of that provision that the prohibition on State aid applies only where the beneficiary of the aid is an ‘undertaking’.
22      See, inter alia, judgments of 23 April 1991, Höfner and Elser (C‑41/90, EU:C:1991:161, paragraph 21), and of 12 July 2012, Compass-Datenbank (C‑138/11, ‘the judgment in Compass-Datenbank’, EU:C:2012:449, paragraph 35 and the case-law cited). Therefore, the State itself or a State entity may act as an undertaking (see, inter alia, judgment in
Compass-Datenbank, paragraph 35 and the case-law cited). In general, as Advocate General Cosmas already observed in his Opinion in Diego Calì & Figli (C‑343/95, EU:C:1996:482, point 32 and the case-law cited), the Court of Justice has consistently given the concept of undertaking a broad interpretation. Even the conferring, by the State, of special or exclusive rights to a particular entity does not affect the classification of that entity as an ‘undertaking’ (see, inter alia, judgment of 18 March 1997, Diego Calì & Figli, C‑343/95, EU:C:1997:160, paragraph 17 and the case-law cited).
23      See judgment in Compass-Datenbank, paragraph 35 and the case-law cited.
24      See, to that effect, judgments of 29 October 1980, van Landewyck and Others v Commission (209/78 to 215/78 and 218/78, EU:C:1980:248, paragraph 88); of 16 November 1995, Fédération française des sociétés d’assurance and Others (C‑244/94, EU:C:1995:392, paragraph 21); and of 1 July 2008, MOTOE (C‑49/07, EU:C:2008:376, paragraphs 27 and 28 and the case-law cited). For example, the fact that the offer of goods or services is made on a not-for-profit basis does not prevent the entity which carries out those operations on the market from being considered an undertaking, since that offer exists in competition with that of other operators which do seek to make a profit (see judgment of 27 June 2017, Congregación de Escuelas Pías Provincia Betania, C‑74/16, EU:C:2017:496, paragraph 46).
25      Indeed, as Advocate General Poiares Maduro noted in his Opinion in FENIN v Commission (C‑205/03 P, EU:C:2005:666, point 26), in seeking ‘to determine whether an activity carried on by the State or a State entity is of an economic nature, the Court is entering dangerous territory, since it must find a balance between the need to protect undistorted competition on the common market and respect for the powers of the Member State’.
26      See, inter alia, judgments of 19 February 2002, Wouters and Others (C‑309/99, EU:C:2002:98, paragraph 57 and the case-law cited), and of 10 July 2025, INTERZERO and Others (C‑254/23, EU:C:2025:569, paragraph 49 and the case-law cited).
27      Whilst in its early judgments on this point, the Court appeared simply to draw a distinction between public power activities and economic activities (see, inter alia, judgments of 16 June 1987, Commission v Italy, 118/85, ‘the judgment in Commission v Italy’, EU:C:1987:283, paragraph 7, and of 18 March 1997, Diego Calì & Figli, C‑343/95, EU:C:1997:160, paragraph 16), it is now settled case-law that the sphere of activities which do not have an economic character is not limited to public power activities, but also includes other non-economic activities, such as activities which are provided on the basis of solidarity, and do not consist in offering goods or services in the market against remuneration (see, inter alia, to that effect, judgment of 11 June 2020, Commission and Slovak Republic v Dôvera zdravotná poist’ovňa, C‑262/18 P and C‑271/18 P, EU:C:2020:450, paragraphs 30 to 50 and the case-law cited).
28      That ground corresponds to the first complaint in the first part of the first plea in law at first instance (dealt with in paragraphs 44 to 65 of the judgment under appeal), alleging too restrictive an interpretation of the concept of ‘activity coming within public authority or connected with the exercise of public powers’, and the first sub-complaint of the third complaint in that plea (dealt with in paragraphs 75 to 91 of that judgment), alleging that the Commission was wrong to consider that, as such, the activities involving the construction and operation of the Fixed Link are not connected with the exercise of public power.
29      See paragraphs 50 to 57 of the judgment under appeal.
30      The Kingdom of Denmark relies, inter alia, on the judgment in
Commission v Italy (paragraph 7).
31      See paragraph 57 of the judgment under appeal. In recital 194 of the decision at issue, the Commission had ruled out that Femern had been granted specific public powers on the ground that, in essence, the construction and commercial exploitation of large infrastructure projects do not, in themselves, constitute an exercise of public powers, and the construction and operation of the Fixed Link are governed by an economic logic, given that it was financed to a very large extent by users’ fees. It had also noted that the activities of Femern are very different from those which had in the past been held to be part of public power activities.
32      See paragraphs 52 to 54 of the judgment under appeal. Furthermore, in paragraph 56 of that judgment, the General Court ruled out that the word ‘powers’ covers, more generally, the tasks of the public service or a public authority, in accordance with what the Court of Justice stated in the judgment in Compass-Datenbank (paragraph 40), from which it followed that the activity at issue in that case fell within the exercise of public powers on the ground that the collection of data was based on a statutory obligation imposed on undertakings, compliance with which could be ensured by the use of powers of enforcement.
33      See paragraphs 58 to 63 of the judgment under appeal.
34      See, inter alia, judgments of 19 January 1994, SAT Fluggesellschaft (C‑364/92, EU:C:1994:7, paragraph 30), and of 10 July 2025, INTERZERO and Others (C‑254/23, EU:C:2025:569, paragraph 49 and the case-law cited). The Court has also stated that, in so far as a public entity exercises an economic activity which can be separated from the exercise of its public powers, that entity, in relation to that activity, acts as an undertaking, while, if that economic activity cannot be separated from the exercise of its public powers, the activities exercised by that entity as a whole remain activities connected with the exercise of those public powers (see judgment in Compass-Datenbank, paragraph 38 and the case-law cited).
35      In paragraph 17 of its Notice on the notion of State aid as referred to in Article 107(1) [TFEU] (OJ 2016 C 262, p 1) (‘the Notice on the notion of State aid’), the Commission treats the two concepts as one and the same by referring, first, to ‘public entities which act “in their capacity as public authorities”’, then to ‘activities that intrinsically form part of the prerogatives of official authority and are performed by the State’. According to Advocate General Mayras in his Opinion in Reyners (2/74, EU:C:1974:59, at p. 664), the concept of ‘official authority’ ‘arises from the sovereignty and majesty of the State’ and ‘for him who exercises it, it implies the power of enjoying the prerogatives outside the general law, privileges of official power and powers of coercion over citizens’. See also, to that effect, Opinions of Advocate General Jacobs in Höfner and Elser (C‑41/90, EU:C:1991:14, points 22 and 23) and Advocate General Cosmas in Diego Calì & Figli (C‑343/95, EU:C:1996:482, point 37 and footnote 24).
36      See, inter alia, judgments of 19 January 1994, SAT Fluggesellschaft (C‑364/92, EU:C:1994:7, paragraphs 29 and 30), and of 26 March 2009, SELEX Sistemi Integrati v Commission (C‑113/07 P, EU:C:2009:191, paragraph 76), as regards air navigation control and safety; judgment of 18 March 1997, Diego Calì & Figli (C‑343/95, EU:C:1997:160, paragraph 23), as regards anti-pollution surveillance; and judgments in Compass-Datenbank, paragraph 40, and of 7 November 2019, Aanbestedingskalender and Others v Commission (C‑687/17 P, EU:C:2019:932, paragraph 45), as regards management of a database and e-procurement platform the use of which is based on a legal obligation. In addition, in the case of certification or accreditation activities, the Court has drawn a distinction between whether or not an activity is supplied in return for remuneration and exclusively on the basis of market demand (see judgment of 12 December 2013, SOA Nazionale Costruttori, C‑327/12, EU:C:2013:827, paragraph 29 and the case-law cited) or whether or not the bodies in question exercise a decision-making power and a power to monitor and to impose penalties (see judgment of 6 May 2021, Analisi G. Caracciolo, C‑142/20, EU:C:2021:368, paragraph 58).
37      See judgments of 19 February 2002, Wouters and Others (C‑309/99, EU:C:2002:98, paragraph 58); of 28 February 2013, Ordem dos Técnicos Oficiais de Contas (C‑1/12, EU:C:2013:127, paragraph 46); of 18 July 2013, Consiglio Nazionale dei Geologi (C‑136/12, EU:C:2013:489, paragraph 44); and of 18 January 2024, Lietuvos notarų rūmai and Others (C‑128/21, EU:C:2024:49, paragraph 63).
38      Judgment of 24 October 2002 (C‑82/01 P, ‘the judgment in Aéroports de Paris’, EU:C:2002:617, paragraphs 76 to 78).
39      As it explains in paragraph 209 of its Notice on the notion of State aid the Commission considered that due to the uncertainty that existed before
the judgment in Aéroports de Paris was delivered, public authorities could legitimately consider that the public funding of infrastructure granted prior to that judgment did not constitute State aid and that, accordingly, such measures did not need to be notified to the Commission.
40      See
judgment in Leipzig-Halle (paragraphs 40 to 42). The General Court has applied those principles by consistently holding that commercial operation and the construction of port or airport infrastructure for such commercial operation constitute economic activities (see, inter alia, judgment of 20 September 2019, Le Port de Bruxelles and Région de Bruxelles-Capitale v Commission, T‑674/17, EU:T:2019:651, paragraph 62 and the case-law cited).
41      The Commission also stated that – generally speaking, unless the Member State concerned has decided to introduce market mechanisms – the following activities form part of the prerogatives of official authority: the army or the police; air navigation safety and control; maritime traffic control and safety; anti-pollution surveillance; the organisation, financing and enforcement of prison sentences; the development and revitalisation of public land by public authorities; and the collection of data to be used for public purposes on the basis of a statutory obligation imposed on the undertakings concerned to disclose such data. Those examples clearly constitute a non-exhaustive list inspired by the case-law of the Court and the practice of the Commission.
42      See, respectively, recitals 190 and 191 of the decision at issue and paragraph 57 of the judgment under appeal.
43      In that regard, a distinction must be drawn between, on the one hand, the conferral by the Member State concerned of powers which, under EU law, constitute public powers and, on the other hand, the classification of those powers as public powers.
44      To take the view that activities should be regarded as activities involving the exercise of public powers on the sole ground that, in the Member State concerned, they typically fall within the exercise of public powers would deprive the concept of ‘State aid’ of its objective character and would amount to giving
the Member States the option of ‘selecting’ the activities which they consider to constitute or not constitute the exercise of such powers. Furthermore, as the Commission rightly points out in its written observations, the judgment in
Commission v Italy (paragraph 7), relied on by the Kingdom of Denmark, does not support its argument, but merely states that the State may act either by exercising public powers or by carrying on economic activities of an industrial or commercial nature by offering goods and services on the market, and that, ‘in order to make such a distinction, it is … necessary, in each case, to consider the activities exercised by the State and to determine the category to which those activities belong’ (emphasis added). It does not therefore follow from that passage that a State may act by exercising public power ‘in respect of any specific activity’.
45      Furthermore, in paragraphs 87 to 89 of the judgment under appeal, the General Court correctly noted, without being challenged on that point by the Kingdom of Denmark, that the public powers alleged by the latter (that is to say, the functions delegated to Femern as highway authority and railway infrastructure manager, and the fact that it was responsible for preparing the safety plans for the Fixed Link) did not concern activities involving the construction and operation of the Fixed Link.
46      See paragraphs 78 to 90 of the judgment under appeal. According to the Kingdom of Denmark, the General Court, first, merely validated the exhaustive list of activities involving the exercise of public powers drawn up by the Commission on the basis of the case-law of the Court of Justice and, second, on the basis of the Commission’s model, examined individually each of the points raised by the Danish authorities
and found that none of them was sufficient, in itself, to conclude that public powers were involved.
47      See recital 191 of the decision at issue. As summarised in recital 190 of that decision, during the administrative procedure, the Danish authorities submitted, first, that the aims of the Fixed Link are much wider than just providing a public service because the Fixed Link would create the necessary conditions for a more intensive cultural and economic cooperation to the benefit of the European Union, the two States and the regions bordering the Fehmarn Belt, secondly, that the nature of the planning, construction and operation of the Fixed Link was connected to the exercise of public power as it was the Kingdom of Denmark’s implementation of an intergovernmental agreement and of a major public planning decision taken by the Danish State (so that the nature of those activities is comparable to those of international and national transport authorities, such as Eurocontrol or the Danish road and rail authorities) and, finally, that Femern is subject to specific rules, for example not subject to a profit maximisation standard, which prevents the risk that its funding could be used to cross-subsidise activities not related to the specific activities Femern was established to fulfil.
48      See, respectively, recitals 192 and 193 of the decision at issue.
49      See recitals 194 to 197 of the decision at issue.
50      Furthermore, before analysing the factors on which it based its finding as to the existence of an economic activity, the Commission did examine (and reject) all the arguments put forward by the Danish authorities relating to the exercise of public powers (see, to that effect, footnote 47
to this Opinion).
51      In paragraph 80 of the judgment under appeal, the General Court found that the fact that Femern is subject to the close supervision of the public powers and that it must comply with the rules relating to access to documents or the auditing of its accounts does not suffice to conclude that its activities are connected with the exercise of public powers it also maintained that, moreover, that fact does not, in itself, mean that Femern may be regarded as a public administration.
52      In paragraph 82 of the judgment under appeal, the General Court found that, during the formal investigation procedure, the Kingdom of Denmark did not rely on any specific provision of the Fehmarn Belt Treaty that would have allowed the Commission to find that that treaty entrusted Femern with activities connected with the exercise of public powers.
53      In paragraph 86 of the judgment under appeal, the General Court found that the fact that a sector of activity has not been liberalised does not constitute conclusive evidence that, as a matter of principle, an activity is connected with the exercise of public powers.
54      In paragraph 87 of the judgment under appeal, the General Court found that the fact that an entity enjoys public powers for the exercise of part of its activities does not, in itself, prevent it from being characterised as an ‘undertaking’ within the meaning of the FEU Treaty provisions on the competition rules in respect of its other economic activities.
55      See paragraph 90 of the judgment under appeal.
56      See footnote 51 to this Opinion.
57      Assuming that, as the Kingdom of Denmark argues, the concept of ‘exercise of public powers’ depends, at least to some extent, on the circumstances in each Member State, it must be accepted that that Member State bases its argument solely on the circumstance that the markets for the construction and operation of Danish road and rail infrastructure are
not liberalised, whereas the General Court, confirming the Commission’s assessment, found that the activity of operating the Fixed Link consists in offering services for crossings of the Fehmarn Belt which
is – and that Member State did not dispute that – a liberalised market on which ferry operators also operate (see, inter alia, paragraphs 113 and 200 of the judgment under appeal).
58      See, to that effect, paragraph 87 of the judgment under appeal.
59      The Kingdom of Denmark has, moreover, merely criticised the General Court for the absence of an overall (explicit) analysis, without demonstrating that the General Court erred in law when it rejected each of those arguments, or explaining how an overall analysis could have reached a different conclusion. Furthermore, the fact that, in recital 194 of the decision at issue, the Commission lists, by way of example, the activities recognised by the case-law of the Court of Justice and by its practice as activities falling within the exercise of public authority does not mean that the Commission found, or that the General Court confirmed, that the activities of constructing and operating the Fixed Link do not fall within the exercise of public powers since they were not included in that list.
60      See paragraph 86 of the judgment under appeal.
61      See paragraph 33
of and footnote 57
to this Opinion. More generally, in my view, the Kingdom of Denmark appears to confuse the concept of ‘exercise of public authority’ with the broader concept of ‘(non-)economic activity’ and the still different concept of ‘(non-)liberalised activity’. The latter two concepts are, however, relevant in the context of the analysis of the second and third grounds of appeal.
62      The second ground of appeal corresponds to the third part of the first plea at first instance (which is dealt with in paragraphs 141 to 164 of the judgment under appeal), based on the allegedly erroneous finding that Femern is an operator pursuing a commercial policy. Although that ground of appeal concerns both the activity involving
the construction and the activity involving the operation of the Fixed Link, I will focus my analysis solely on the activity involving the operation,
in so far as its construction is addressed only as an activity ancillary to its operation and the construction activity will be dealt with more exclusively and in depth in the third ground of appeal.
63      This is the first argument raised by the Kingdom of Denmark in the context of this ground of appeal.
64      According to the Danish authorities, the General Court, like the Commission, wrongly held that the Fixed Link project is based on commercial policy, thus attaching decisive importance to the fees paid by users of the infrastructure (second argument raised in the context of this ground of appeal), which did not constitute consideration for the exercise of an economic activity, but contributions paid to the State (fifth argument), and wrongly disregarding the relevance of the conditions to which Femern is subject in the exercise of its activities, in particular the fact that it acts on the instructions of the Minister for Transport (fourth argument).
65      The Danish authorities take the view that the General Court wrongly held that a market exists, whereas the Fixed Link would not compete with ferries but would constitute development of German and Danish road and rail infrastructure across the Fehmarn Belt (third argument raised in the context of this ground of appeal).
66      Since the concept of ‘infrastructure’ is very broad, it should be made clear that this case concerns physical transport infrastructure, in particular road and rail infrastructure (see, inter alia, Regulation (EU) 2024/1679 of the European Parliament and of the Council of 13 June 2024 on Union guidelines for the development of the trans-European transport network, amending Regulations (EU) 2021/1153 and (EU) No 913/2010 and repealing Regulation (EU) No 1315/2013 (OJ L, 2024/1679)). See, with regard to the etymology of this concept, Ruechardt, C., EU State Aid Control of Infrastructure Funding, Kluwer Law International Alphen aan den Rijn, 2018, pp. 19 to 30.
67      As, moreover, was acknowledged by the Commission itself in paragraph 201 of its Notice on the notion of State aid.
68      The principles identified in those judgments apply, in the view of the Commission, to the construction of other infrastructure that is indissociably linked to an economic activity (see paragraph 202 of the Notice on the notion of State aid).
69      See recitals 192 and 193 of the decision at issue. In essence, in the judgment under appeal the General Court found, first, that Femern would exercise an economic activity given that it would provide transport services for remuneration on the market for crossings of the Fehmarn Belt (see paragraphs 145 to 153 of that judgment) and, second, rejected the arguments put forward by the Kingdom of Denmark, the Federal Republic of Germany and the Grand Duchy of Luxembourg, alleging, essentially, that Femern is not seeking to maximise its profits and acts
on the instructions of the Ministry of Transport, including as regards the setting of charges for using the Fixed Link (see paragraphs 154 to 162 of that judgment).
70      That is to say, the underlying economic logic of the Fixed Link project and the existence of a market and of competitors for the same services as those offered by Femern.
71      That is to say, the absence of profit maximisation and the intervention of the Ministry of Transport.
72      Furthermore, the Kingdom of Denmark merely criticises the General Court for failing to carry out an overall analysis, without, however, explaining how such an analysis should have been carried out and could have led to a different conclusion.
73      See judgment of 27 June 2017, Congregación de Escuelas Pías Provincia Betania (C‑74/16, EU:C:2017:496, paragraph 47 and the case-law cited). On the other hand, the fact that the offer of goods or services is made on a not-for-profit basis does not prevent the entity which carries out those operations on the market from being considered an ‘undertaking’, since that offer exists in competition with that of other operators which do seek to make a profit (see also paragraph 46 and the case-law cited).
74      See, to that effect, judgment of 27 June 2017, Congregación de Escuelas Pías Provincia Betania (C‑74/16, EU:C:2017:496, paragraphs 45 to 50).
75      Moreover, according to further settled case-law of the Court, even services which a Member State imposes on an undertaking by way of public service obligations have economic character,
also when they are offered to recipients at a price below their market value or free of charge (see, for example, Opinion of Advocate General Biondi in Staten genom Sjöfartsverket, C‑401/24, EU:C:2025:415, point 16 and the case-law cited).
76      Furthermore, in accordance with the settled case-law of the Court referred to in point 16 of this Opinion, the public or private status of the entity concerned is irrelevant for the purpose of assessing whether it is an ‘undertaking’ within the meaning of Article 107(1) TFEU, so that the State itself or a State entity may act as an undertaking.
77      In paragraph 169 of the decision at issue, the Commission also mentions the fact that the rates for the road traffic will be determined on the basis of an extrapolation of
the ferry prices applied in 2007. Furthermore, the judgment in Compass-Datenbank, on which the Kingdom of Denmark relies, is not relevant in this regard as it concerned a service supplied by a public entity and is connected to the exercise by it of public powers (see, in particular, paragraph 39 of that judgment), which the Kingdom of Denmark has not succeeded in demonstrating in the context of its first ground of appeal.
78      The Court has ruled, in particular, that a banking foundation, acting itself in the fields of public interest and social assistance, must be regarded as engaging in an economic activity, notwithstanding the fact that it offers goods or services without a profit motive, since that offer will be in competition with that of profit-making operators (see judgment of 10 January 2006, Cassa di Risparmio di Firenze and Others, C‑222/04, EU:C:2006:8, paragraphs 122 and 123). Moreover, in the cases forming the subject of the judgments of 13 December 2018, Scandlines Danmark and Scandlines Deutschland v Commission (T‑630/15, EU:T:2018:942), and of 13 December 2018,
Stena Line Scandinavia v Commission (T‑631/15, EU:T:2018:944), confirmed by judgments of 6 October 2021, Scandlines Danmark and Scandlines Deutschland v Commission (C‑174/19 P and C‑175/19 P, EU:C:2021:801), and of 6 October 2021,
Scandlines Danmark and Scandlines Deutschland v Commission (C‑174/19 P and C‑175/19 P, EU:C:2021:801), neither the General Court nor the Court of Justice questioned the admissibility of the appeals brought by the applicant companies, namely ferry operators and competitors of Femern, which challenged the decisions at issue that were the subject of those judgments.
79      In such a situation, the emergence of a more efficient mode of transport is likely to, as the Commission pointed out at the hearing, lead to the replacement of one monopoly with another, in a competitive environment.
80      Competition will not take place on the infrastructure in question or between similar competing infrastructures, but between services provided thanks to the operation of that infrastructure (that is to say, crossing of the Fehmarn Belt by road or rail via the Fixed Link) and substitutable services provided under a different business model (that is to say, crossing the Fehmarn Belt by ferry).
81      In accordance with the case-law of the Court, the list of constituent elements of State aid within the meaning of Article 107(1) TFEU itself varies according to whether, depending on the circumstances, some of those constituent elements are assessed jointly. According to the most detailed enumeration, the following elements are to be distinguished: the attributability of the measure to the State and the use of State resources (see, inter alia, judgment of 2 March 2021, Commission v Italy and Others, C‑425/19 P, EU:C:2021:154, paragraph 58 and the case-law cited), the economic advantage for the recipient (see, inter alia, judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg,
C‑280/00, EU:C:2003:415, paragraph 84 and the case-law cited), the selectivity of the measure (see, inter alia, judgment of 10 September 2024, Commission v Ireland and Others, C‑465/20 P, EU:C:2024:724, paragraph 75 and the case-law cited), the distortion of competition (see, inter alia, judgment of 19 September 2000, Germany v Commission, C‑156/98, EU:C:2000:467, paragraph 33 and the case-law cited), and barriers to trade between Member States (see, inter alia, judgment of 7 March 2024, Fallimento Esperia and GSE, C‑558/22, EU:C:2024:209, paragraph 64 and the case-law cited).
82      For example, the measures under examination might not confer an advantage on the beneficiary or distort competition. Those aspects, which are sometimes raised by the parties, do not relate to the preliminary assessment of the economic nature of the activity in question, but to the specific assessment of the elements constituting State aid.
83      See, by way of example, judgment of 20 September 2019, Le Port de Bruxelles and Région de Bruxelles-Capitale v Commission (T‑674/17, EU:T:2019:651, paragraphs 61 to 89 and the case-law cited). By way of illustration, I would point out that the Commission decided that the financing of infrastructure very similar to the Fixed Link in question, such as construction of the Channel Tunnel Rail Link (OJ 2002 C 130, p. 5) and the construction and operation of the Øresund fixed link (OJ 2014 C 418, p. 8) constituted compatible aid. With regard, in particular, to the Øresund fixed link project, following a multi-stage examination, confirmed by the judgment of 19 September 2018, HH Ferries and Others v Commission (T‑68/15, EU:T:2018:563), the Commission recently concluded that some of the measures granted by the Danish authorities for the construction and operation of the Øresund fixed link constituted unlawful State aid subject to recovery by those authorities (see Commission Decision of 13 February 2024, C(2024)959 final, State aid SA.52162 and SA.52617, implemented by Denmark and Sweden for Øresundsbro Konsortiet). Moreover, in the present case, the Commission had adopted an initial decision not to raise objections (declaring, inter alia, that the aid granted to Femern for the public financing of the Fixed Link was compatible with the internal market), which was annulled by the judgments of 13 December 2018, Scandlines Danmark and Scandlines Deutschland v Commission (T‑630/15, EU:T:2018:942) and of 13 December 2018, Stena Line Scandinavia v Commission (T‑631/15, EU:T:2018:944). Although the question of whether aid exists has not been explicitly settled, the fact remains that, throughout that laborious administrative and judicial process (which is not yet complete), the existence of State aid has, in essence, been established. For example, in the judgment of 6 October 2021, Scandlines Danmark and Scandlines Deutschland v Commission (C‑174/19 P and C‑175/19 P, EU:C:2021:801), even the measures for financing internal infrastructure, in respect of which the Commission found that there was no State aid, were examined not from the point of view of the absence of an ‘economic activity’, but rather from that of the absence of distortion of competition and effect on trade between Member States.
84      In recitals 306 to 308 of the decision at issue, the Commission, relying on a 2000 cost-benefit analysis and on a 2001 enquiry of commercial interest in the project, which have been carried out by the Danish authorities, noted that, despite the substantial interest aroused by the enquiry, no rational private investor was prepared to engage in the financing of such a project under normal market conditions.
85      See, by analogy, judgment of 11 June 2020, Commission and Slovak Republic v Dôvera zdravotná poist’ovňa (C‑262/18 P and C‑271/18 P, EU:C:2020:450, paragraph 59).
86      For example, according to legal literature, an activity which, even when it succeeds in covering all its costs, does not involve the payment of dividends to shareholders and does not provide returns to investors is not economic (see, to that effect, Nicolaides, P., ‘Not Even the Church Is Absolved from State Aid Rules: The Essence of Economic Activity’, European State Aid Law Quarterly, Vol. 16, No 4, 2017, pp. 527 to 536, in particular pp. 534 to 536). Moreover, the absence, in this case, of any interest on the part of private investors could be evidence of the need for public investment in the activity in question (see, to that effect, Wilson, T., ‘Infrastructure Financing and State Aid Post Leipzig-Halle’, European State Aid Law Quarterly, Vol. 13, No 1, 2014, pp. 24 to 27, in particular, p. 26).
87      See, to that effect, judgment in
Commission v Italy (paragraphs 10 and 11).
88      There are, in particular, activities which fall within specific areas, such as education, healthcare and social security, whose classification as ‘economic’ depends, essentially, on the way in which those areas are organised in the Member State concerned. In principle, those activities are not economic in nature if they form part of a public system of a universal nature, controlled by the State, based on social and solidarity-based, rather than commercial, policy, by which the State fulfils its obligations in those areas (see, inter alia, to that effect, judgment of 11 June 2020, Commission and Slovak Republic v Dôvera zdravotná poist’ovňa, C‑262/18 P and C‑271/18 P, EU:C:2020:450, paragraphs 58 to 65, and Opinion of Advocate General Biondi in Staten genom Sjöfartsverket, C‑401/24, EU:C:2025:415, point 8 and the case-law cited).
89      See point 47 of this Opinion.
90      For example, in the field of public health, the Court has ruled that the introduction, into a scheme applying the principle of solidarity, of a competitive element designed to encourage operators to operate in accordance with the principles of sound management did not alter the nature of that scheme (see judgment of 27 April 2023, Casa Regina Apostolorum della Pia Società delle Figlie di San Paolo v Commission, C‑492/21 P, EU:C:2023:354, paragraph 104). See also Buts, C., Cyndecka, M.A., De Cock, W., Skovgaard Ølykke, G. and Segura, M., ‘Review of EU Case Law on State Aid – 2023 Part One: Notion of State Aid’, European State Aid Law Review Quarterly, Vol. 23, No 2, 2024, pp. 173 to 199, in particular, p. 174.
91      See point 48
of this Opinion.
92      If the Court were to find that the operation of the Fixed Link does not constitute an economic activity in this case, that finding will apply a fortiori to activities involving its construction, the allegedly economic nature of which flows from the fact that it is ancillary to the operating activity.
93      That ground will appear ineffective if the Court, following the second approach proposed in the second ground of appeal, finds that Femern’s activities, as a whole, are not ‘economic’ in nature.
94      That ground corresponds to the second part of the second plea at first instance (which is dealt with in paragraphs 176 to 207 of the judgment under appeal), alleging that the Commission wrongly found that the activities involving the construction and operation of the Fixed Link are inseparable.
95      Judgment of 24 March 2011 (T‑443/08 and T‑455/08, EU:T:2011:117), upheld on appeal by the judgment in
Leipzig-Halle.
96      See paragraphs 188 to 191 of the judgment under appeal.
97      See paragraphs 192 to 198 of the judgment under appeal. In addition, in the following paragraphs of that judgment, which are not the subject of the present appeal, the General Court rejected the applicant’s arguments based on the activities involving the construction and operation of the Fixed Link not being liberalised (paragraphs 199 to 202 of that judgment), the separable nature of the activities involving the construction and operation of the Fixed Link (in accordance with the judgment of 30 April 2019, UPF v Commission, T‑747/17, EU:T:2019:271) (paragraphs 203 and 204 of the same judgment); the possibility of amending the procedure governing the operation of the Fixed Link (paragraph 205 of the judgment under appeal); and the need for a strict interpretation of the concept of an ‘undertaking’ within the meaning of Article 107(1) TFEU (paragraphs 206 and 207 of that judgment).
98      In reality, since the activities involving the construction and operation of the Fixed Link form part of a single project which is the subject of the financing measures in favour of Femern, it cannot be ruled out that the financing of the construction will provide an economic advantage to Femern, even if that can only be in the form of the spillover of that financing on its economic activity, that is to say transport services across the Fehmarn Belt. That is, in my view, the logic underlying the General Court’s finding, in paragraph 196 of the judgment under appeal, that if the construction activity were to be considered as being separable from the operation and, therefore, non-economic at the stage of the operation of the Fixed Link, Femern would benefit from the possibility of operating infrastructure subsidised by the preferential financing obtained for the construction of that link. However, that reasoning is not apparent from the grounds of the decision at issue, which is based solely on the ‘inseparable nature’ of the activities involving the construction and operation of that link.
99      Judgment of 24 March 2011, T‑443/08 and T‑455/08, EU:T:2011:117.
100      See judgment in Leipzig-Halle
(paragraphs 40 to 44 and the case-law cited).
101      See judgment in Leipzig-Halle
(paragraph 3).
102      See, inter alia, the Commission’s definition in its communication – ‘Approval of the content of a draft for a Communication from the Commission “Guidelines on State aid for land and multimodal transport”’, (OJ 2024/C 5046, p. 1), in paragraph 54(f)), according to which ‘dedicated infrastructure’ means ‘infrastructure that is built for ex ante identifiable undertaking(s) and tailored to their needs’.
103      In my view, even the adequacy of the Commission’s reasoning is still questionable since, in essence, it merely draws an analogy with the situation that was the subject of the judgment in Leipzig-Halle, without going into any detail as to the relevance of the principles identified by the Court in that judgment to the present case.
104      That conclusion will lead to the annulment of Article 2 of the decision at issue in its entirety, since, first, the Commission’s assessment of the existence of State aid is based on a joint assessment of the activities involving the construction and operation of the Fixed Link and, second, the examination of the compatibility of the notified measures obviously depends on their classification as ‘State aid’.