Case T‑68/15

(publication by extracts)

HH Ferries I/S, formerly Scandlines Øresund I/S and Others

v

European Commission

(State aid — Aid in favour of the Øresund road-rail fixed link — Public financing granted by the Swedish State and the Danish State to the Fixed Link infrastructure project across the Øresund — State guarantees — Tax aid — Decision not to raise any objection — Decision that there was no State aid — Action for annulment — Challengeable act — Admissibility — Failure to initiate the formal investigation procedure — Serious difficulties — Concept of ‘aid scheme’ — Aid to promote the execution of an important project of common European interest — Assessment of the aid element in a guarantee — Whether the aid contained in a guarantee is limited — Proportionality — Legitimate expectations)

Summary — Judgment of the General Court (Sixth Chamber), 19 September 2018

State aid — Prohibition — Exceptions — Aid capable of being regarded as compatible with the internal market — Aid helping to promote the execution of an important project of European interest — Criteria — Weighing the expected positive effects of aid in terms of realisation of the objectives set out in Article 107(3) TFEU against its negative effects in terms of distortion of competition and the effect on trade between Member States

State aid — Prohibition — Exceptions — Aid capable of being regarded as compatible with the internal market — Aid helping to promote the execution of an important project of European interest — Aid in the form of guarantees — Calculation of the aid element of a public guarantee — Obligations of the Commission

State aid — Examination by the Commission — Guidelines adopted in exercise of the Commission’s discretion — Legal nature — Indicative rules of conduct implying a self-limitation on the Commission’s discretion — Obligation to comply with the principles of equal treatment, protection of legitimate expectations and legal certainty

State aid — Examination by the Commission — Examination of an aid scheme as a whole — Classification as an aid scheme — No explanation in the contested decision of the reasons for such a classification — Insufficient and incomplete examination

State aid — Existing aid — Examination by the Commission of the compatibility of the aid with the internal market — Difficulties of assessment — Commission’s duty to initiate the investigation procedure — Serious difficulties — Meaning — Objective nature — Burden of proof — Circumstances enabling the existence of such difficulties to be determined — Duration and insufficiency or incompleteness of the examination by the Commission at the time of the preliminary investigation procedure

See the text of the judgment. (see paras 60-63)

In the case of an aid scheme, the Commission may confine itself to examining the general characteristics of the scheme in question, and is not required to examine each particular case in which it applies, in order to determine whether that scheme comprises aid elements. The fact that the Commission provides no explanation in the contested decision of why those guarantees are to be considered to be aid schemes is a factor that indicates the existence of an insufficient and incomplete examination. In that regard, even if it might be inferred from the decision that the State guarantees meet the definition of aid schemes given by the second part of Article 1(d) of Regulation No 659/1999 laying down detailed rules for the application of Article 108 TFEU, namely ‘any act on the basis of which aid which is not linked to a specific project may be awarded to one or several undertakings for an indefinite period of time and/or for an indefinite amount’, as argued by the Commission, the decision must explain how the aid contained in the State guarantees satisfies the condition that the aid must not be linked to a specific project. Further, the assertions, on the one hand, at the stage of classification of the State guarantees, that there are one or two aid schemes, as the aid resulting from those guarantees is not linked to a specific project, and, on the other, at the stage of assessing the compatibility of the measures with the internal market, that the State guarantees relate to a project that is ‘specific, precise and clearly defined’, are irreconcilable. The issue turns not on different legal concepts, but on a matter of fact which cannot vary from one legal assessment to another. In that regard, the State guarantees cannot be regarded as linked to a ‘specific’ project, on the ground that the aid contained in those State guarantees covers both the construction phase and the operational phase of the Fixed Link. Since the adjective ‘specific’ means ‘specially or peculiarly pertaining to a particular thing’, the aid relating to the State guarantees must be regarded as linked to a specific project on the ground that the aid covers the borrowings of the constructor in relation solely to the Fixed Link project, including its operational phase, to the exclusion of other projects or activities. The ‘indefinite’ nature of the operational phase, emphasised by the Commission, does not concern the specificity of the project, strictly speaking, but concerns in fact the assessment of whether or not the State guarantees are limited, as part of the assessment of their compatibility. It follows that the Commission experienced, during the preliminary examination procedure, serious difficulties with respect to the classification of the State guarantees as aid ‘schemes’. (see paras 68, 75, 76, 79-81)

See the text of the judgment. (see para. 94)

Aid which is intended to relieve an undertaking of the expenses which it would normally have to bear in its day-to-day management or its normal activities must be classified as operating aid. Operating aid does not, as a general rule, fall within the scope of Article 107(3) TFEU. The effect of such aid is, as a general rule, to distort competition in the sectors in which it is granted, whilst nevertheless being incapable, by its very nature, of achieving any of the objectives of the exceptions there provided for. A presumption therefore arises that operating aid distorts, by its very nature, competition and affects trading conditions to an extent contrary to the common interest. Such aid is as a general rule prohibited. Aid consisting of State guarantees covering the operating costs of a fixed road-rail link is likely to constitute operating aid. (see paras 103, 104, 108)

See the text of the judgment. (see para. 120)

See the text of the judgment. (see paras 142-144, 189, 190)

Since, in particular, Article 107(3)(b) TFEU must be interpreted strictly, it is the duty of the Commission to verify that the aid contained in State guarantees, covering both the costs of construction and the operating costs of a fixed road-rail link and in the tax aid is necessary and proportionate to the objective pursued. Whatever the substantive rules applicable ratione temporis, the knowledge of how to determine the aid element contained in a guarantee, that is to say being familiar with the method for determining the aid element, while there is no requirement for a final precise figure, is an essential prerequisite in order to assess whether that aid is necessary and proportionate. The assessment of the proportionality of aid implies verification whether that aid is limited to the minimum necessary to achieve the objectives of the various derogations covered by Article 107(3) TFEU, which implies knowledge of the extent to which the aid is necessary to achieve the objective concerned and therefore knowledge of how to calculate the aid element in advance. That is consistent with the case-law, which states that no provision of EU law requires the Commission, when ordering the recovery of aid declared to be incompatible with the internal market, to fix the exact amount of the aid to be recovered. In that regard, it is sufficient for the Commission’s decision to include information enabling the recipient to work out itself, without overmuch difficulty, that amount. (see paras 148-151)

Economic assessments pursuant to Article 107(3)(c) TFEU, in respect of which the Commission enjoys a broad discretion, must be made in an EU context, which means that the Commission is under an obligation to examine the impact of the aid on competition and trade within the European Union. The Commission is subject to the same obligation in its economic assessments for the purposes of the application of Article 107(3)(b) TFEU. (see paras 204, 207)