Case C-337/24 P: Appeal brought on 7 May 2024 by the Kingdom of Denmark against the judgment of the General Court (Fifth Chamber, Extended Composition) delivered on 28 February 2024 in Case T-364/20, Denmark v Commission
Date: 2024-05-07
Institutions: Court of Justice
Subjects: Baltic Sea, State aid, aid to undertakings, control of State aid, economic activity, financial aid, rail transport, reimbursement of aid, road network, tunnel








C_202404577EN.000101.fmx.xml












Official Journal of the European Union


EN
C series













C/2024/4577


29.7.2024






Appeal brought on 7 May 2024 by the Kingdom of Denmark against the judgment of the General Court (Fifth Chamber, Extended Composition) delivered on 28 February 2024 in Case T-364/20, Denmark v Commission


(Case C-337/24 P)

(C/2024/4577)
Language of the case: Danish

Parties


Appellant: Kingdom of Denmark (represented by: C. Maertens, acting as Agent, and by R. Holdgaard and J. Pinborg, advokaten)

Other parties to the proceedings: European Commission, Kingdom of Belgium, Federal Republic of Germany and Grand Duchy of Luxembourg

Form of order sought

The appellant claims that the Court should:






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set aside the judgment of the General Court of 28 February 2024 in Case T-364/20, Kingdom of Denmark v European Commission;










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principally, annul Article 2 of the European Commission Decision of 20 March 2020 on State aid SA.39078 – 2019/C (ex 2014/N), (1) 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 A/S, which Denmark at least partially put into effect unlawfully, constitute State aid within the meaning of Article 107(1) of the Treaty on the Functioning of the European Union’, and order the European Commission to pay the costs;










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in the alternative, refer the case back to the General Court and reserve the costs.





Grounds of appeal and main arguments

First ground of appeal: the General Court erred in law by adopting too narrow an interpretation of the concept of the exercise of public power and by failing to verify whether the Commission carried out the required overall assessment. In paragraphs 43-65 and 75-91 of the judgment under appeal, the General Court erred in law by not carrying out a proper review – in accordance with Article 107(1) TFEU – of the Commission’s assessment of whether Femern A/S’s activities constitute the exercise of public power, as the Government claimed in its application before the General Court. Such an assessment requires a concrete and overall assessment of whether the activity, by its nature, purpose and the rules to which it is subject, constitutes the exercise of public power.
Second ground of appeal: the General Court erred in law by failing to verify whether the Commission carried out the required overall assessment of whether Femern A/S’s activities constitute wholly or partly non-economic activities. Even if Femern A/S’s activities cannot be regarded as the exercise of public power, the General Court erred in law in paragraphs 145-164 of the judgment under appeal by failing to verify whether the Commission carried out the overall assessment of the activities required by case-law in order to determine whether the activities are wholly or partly non-economic, as the Government claimed in its application before the General Court.
Third ground of appeal: the General Court erred in law in its assessment that Femern A/S carries out a competitive economic activity as from the construction phase. By the third ground of appeal, it is claimed that even if Femern A/S’s activities cannot be regarded as the exercise of public power or other non-economic activity, the General Court erred in law in paragraphs 176-208 of the judgment under appeal by not reviewing the Commission’s assessment that Femern A/S carries out economic activity as from the construction phase simply because the Commission assessed that Femern A/S carries out economic activity in the operational phase.


(1)  
            OJ 2020 L 339, p. 1.


ELI: http://data.europa.eu/eli/C/2024/4577/oj
ISSN 1977-091X (electronic edition)