Judgment of the General Court (Sixth Chamber) of 13 December 2018 –

Scandlines Danmark and Scandlines Deutschland v Commission

(Case T‑630/15)

(State aid — Public financing of the Fehmarn Belt fixed link project — Individual aid — Decision not to raise any objections — Decision finding no State aid and declaring the aid compatible with the internal market — Definition of State aid — Adverse effect on competition and effect on trade between Member States — Conditions governing compatibility — Aid to promote the execution of an important project of common European interest — Necessity of the aid — Incentive effect — Proportionality of the aid — Serious difficulties justifying the initiation of the formal investigation procedure — Obligation to state reasons — Communication on State aid to promote the execution of important projects of common European interest)

1. Judicial proceedings — Introduction of new pleas during the proceedings — Pleas constituting a new application — Inadmissibility (Rules of Procedure of the General Court, Art. 84(1)) (see paras 45-52)

2. Acts of the institutions — Statement of reasons — Obligation — Scope — Commission decision on State aid (Art. 296 TFEU) (see paras 60, 61)

3. State aid — Effect on trade between Member States — Adverse effect on competition — Criteria for assessment (Art. 107(1) TFEU) (see para. 84)

4. State aid — Examination by the Commission — Preliminary review and main review — Commission’s duty to initiate the main review procedure in the event of serious difficulties — Meaning of serious difficulties — Objective nature — Judicial review — Scope (Art. 108(2) and (3) TFEU) (see paras 138-140)

5. State aid — Prohibition — Exceptions — Aid capable of being regarded as compatible with the internal market — Discretion of the Commission — Complex evaluation of economic matters — Judicial review — Limits (Art. 107(3)(b) TFEU) (see para. 141)

6. State aid — Prohibition — Exceptions — Aid contributing to the execution of an important project of common European interest — Concept — Public financing of the Fehmarn Belt fixed rail-road link — Included (Art. 107(3)(b) TFEU; Commission notice 2014/C 188/02) (see paras 170-182)

7. State aid — Prohibition — Exceptions — Discretion of the Commission — Adoption by the Commission of guidelines governing the compatibility of aid with the internal market — Consequences — Self-limitation of its discretion (Art. 107(3)(b) TFEU; Commission notice 2008/C 155/02) (see paras 261-263)

Re:

Application pursuant to Article 263 TFEU for annulment of Commission Decision C(2015) 5023 final of 23 July 2015 on State aid SA.39078 (2014/N) (Denmark) for the financing of the Fehmarn Belt fixed link project (OJ 2015 C 325, p. 5).

Operative part

The Court:

1. Annuls Commission Decision C(2015) 5023 final of 23 July 2015 on State aid SA.39078 (2014/N) (Denmark) for the financing of the Fehmarn Belt fixed link project (OJ 2015 C 325, p. 5) in so far as the Commission decided not to raise any objections to the measures granted by the Kingdom of Denmark to Femern A/S for the planning, construction and operation of the Fehmarn Belt fixed link;

2. Dismisses the action as to the remainder;

3. Orders the Commission to bear its own costs and to pay the costs incurred by Scandlines Danmark ApS and Scandlines Deutschland GmbH;