STATE AID – DENMARK & SWEDEN – State Aid SA.52489 (2018/FC) – Alleged State aid to PostNord Logistics – Denmark – State aid SA.52658 (2018/FC) – Alleged State aid to PostNord Logistics – Sweden – Invitation to submit comments pursuant to Article 108(2) of the Treaty on the Functioning of the European Union
Date: 2026-05-08
Institutions: Directorate-General for Competition, European Commission
Subjects: Denmark, State aid, Sweden, aid to undertakings, capital increase, company in difficulties, control of State aid, infringement procedure (EU), postal service




C_202602565EN.000101.fmx.xml












Official Journal of the European Union


EN
C series













C/2026/2565


8.5.2026






STATE AID – DENMARK & SWEDEN
State Aid SA.52489 (2018/FC) – Alleged State aid to PostNord Logistics – Denmark
State aid SA.52658 (2018/FC) – Alleged State aid to PostNord Logistics – Sweden
Invitation to submit comments pursuant to Article 108(2) of the Treaty on the Functioning of the European Union
(Text with EEA relevance)
(C/2026/2565)

By means of the letter dated 13 February 2026 reproduced in the authentic language on the pages following this summary, the Commission notified Denmark and Sweden of its decision to initiate the procedure laid down in Article 108(2) of the Treaty on the Functioning of the European Union concerning the abovementioned aid.
Interested parties may submit their comments within one month of the date of publication of this summary and the following letter, to:





European Commission,




Directorate-General Competition




State Aid Greffe




1049Bruxelles/Brussel




BELGIQUE/BELGIË





Stateaidgreffe@ec.europa.eu





These comments will be communicated to Denmark and Sweden. Confidential treatment of the identity of the interested party submitting the comments and/or of parts of the comments submitted may be requested in writing, stating the reasons for the request.

Text of summary

On 22 November 2018, the trade association Brancheorganisationen for den danske vejgodstransport (“ITD” or “the complainant”) submitted a complaint alleging that Sweden and Denmark had granted certain State aid measures in favour of PostNord Logistics A/S (“PNL”) – a subsidiary of the PostNord Group AB (a wholly owned subsidiary of PostNord AB, which, in turn, is owned by Sweden (60 %) and Denmark (40 %)).
On 12 May 2020, after a preliminary examination, the Commission adopted a no-aid decision (the “2020 Decision”). In the 2020 Decision the Commission found that: (i) a statement in PNL’s annual reports of 2017 and 2018 in which the management of PostNord Group AB stated it would provide “the necessary capital injections on market conditions in order to ensure the necessary liquidity resources in the coming financial year” did not entail the granting of an advantage; (ii) a capital injection of approximately €15.4 million (DKK 115 million) from PostNord Group into PNL (the “2018 capital injection” or “the measure”), did not constitute State aid; and (iii) an alleged cross-subsidisation between Post Danmark and PNL consisting of the free use of trucks, storage and other facilities was not established, which meant the measure did not constitute State aid. The Commission concluded that the 2018 capital injection followed PostNord Group’s economic analysis of PNL’s business plan aimed at addressing PNL’s negative financial results, and was decided by PostNord AB’s Board of Directors.
Following an appeal by ITD and transport company Danske Fragtmænd A/S, by judgment in case T-525/2020, the General Court partially annulled the 2020 Decision as regards the 2018 capital injection. The Court held that the Commission’s examination of the 2018 capital injection was incomplete and insufficient when it came to whether it was imputable to the Danish and Swedish States.
The Commission has therefore opened an in-depth investigation to assess whether:






—



the capital injection is imputable to the Danish and Swedish States because of i) the organic links between the States and PostNord AB, ii) the nature of PostNord AB’s activities, iii) the supervision and control exercised by the States over the capital injection approved by PostNord AB, through the existence of a dialogue between PostNord AB’s Board of Directors and the States, and iv) other indicators relating to the unlikely nature of the lack of involvement of the States in the capital injection, such as the amount of the capital injection;










—



the capital injection is market-conform, meaning that it complies with the market economy operator principle (MEOP) and a private investor would have provided this capital injection under the same circumstances, particularly given PNL's financial track record and the assumptions in its business plan.










—


in case the measure constitutes State aid, it can be considered compatible with the internal market.




The Commission will investigate further the above-mentioned aspects.
In accordance with Article 16 of Council Regulation (EU) 2015/1589, all unlawful aid can be subject to recovery from the recipient.





Text of letter

The Commission wishes to inform Denmark and Sweden that, having examined the information supplied by your authorities on the measure referred to above, it has decided to initiate the procedure laid down in Article 108(2) of the Treaty on the Functioning of the European Union.
1.   PROCEDURE









(1)


On 22 November 2018, Brancheorganisationen for den danske vejgodstransport (“ITD” or “the complainant”) (1) submitted a complaint alleging that Sweden and Denmark had granted certain State aid measures in favour of PostNord Logistics A/S (“PNL”) – a subsidiary of the PostNord Group AB (a wholly owned subsidiary of PostNord AB, which, in turn, is owned by Sweden (60%) and Denmark (40%)). According to the complaint, the alleged State aid to PNL consisted of:






(i)


Aid resulting from two similar statements in PNL’s annual reports of 2017 and 2018 announcing that PNL would receive capital injections from its parent company (PostNord Group AB) on market conditions in the coming year.










(ii)


a capital injection of DKK 115 million (approximately EUR 15.4 million) (2) from PostNord Group AB into PNL (see recital (2)(ii)).










(iii)


Alleged cross-subsidization between Post Danmark A/S and PNL, in that PNL would make use of facilities such as trucks, staff and cabotage warehouses covered by the compensation that Post Danmark A/S receives for its universal service obligation approved in the 2018 Universal Service Obligation (“USO”) compensation decision (3).
















(2)


Following further exchanges between ITD, the Danish and Swedish authorities and the Commission (4), on 12 May 2020, after a preliminary examination and thus without having initiated the formal investigation procedure, the Commission adopted a decision concerning the alleged measures covered in the complaint (the “2020 Decision” (5)). The 2020 Decision concluded that:






(i)


The two statements in PNL’s annual reports of 2017 (6) and 2018 (7) (see recital (1)(i)) did not entail the granting of an advantage;










(ii)


the capital injection of DKK 115 million (approximately EUR 15.4 million) from PostNord Group AB into PNL (see recital (1)(ii)) implemented in 2018 (the “2018 capital injection” or “the measure”), did not constitute State aid; and










(iii)


the alleged cross-subsidisation between Post Danmark A/S and PNL (see recital (1)(iii)) was not established, and thus the measure did not constitute State aid.
















(3)


On 14 August 2020, ITD and Danske Fragtmænd A/S (8) (“Danske Fragtmænd”, and, together with ITD, the “applicants”) brought an action for the annulment of the 2020 Decision before the General Court. In support of their action, the applicants raised a single plea in law, alleging that the Commission had failed to initiate the formal investigation procedure provided for in Article 108(2) TFEU, despite the serious difficulties raised by the assessment of two of those measures, namely, the capital injection (see recital (2)(ii)), on the one hand, and the cross-subsidisation (see recital (2)(iii)), on the other.












(4)


By judgment in case T-525/2020 (9), the General Court partially annulled the 2020 Decision in so far as the Commission concluded, at the end of the preliminary examination procedure, that the 2018 capital injection did not constitute State aid. By contrast, the General Court dismissed the action in so far as it concerned the alleged cross-subsidisation assessed by the 2020 Decision (see recital (2) (iii)).












(5)


On 5 February 2024, the Danish and Swedish authorities had a meeting with the services of the Commission. During the meeting, the services of the Commission asked several questions regarding the imputability of the 2018 capital injection, to which the Danish and Swedish authorities provided a joint written reply on 6 March 2024.












(6)


On 21 March 2025, the Commission requested further information to the Danish and Swedish authorities. The Danish authorities replied on 15 May 2025, whereas the Swedish authorities replied on 17 April and 12 June 2025. On 1 October 2025, the Commission requested further information to the Danish and Swedish authorities. The Swedish authorities replied on 17 and 29 October 2025, whereas the Danish authorities replied on 20 October 2025. On 2 December 2025, the Commission requested further information to the Danish authorities, to which they replied on 12 December 2025.












(7)


The Commission adopts this Decision in order to comply with the General Court’s judgment in case T-525/20, in accordance with Article 266 TFEU. The present decision is limited to the measure regarding which the General Court annulled the 2020 Decision, namely the 2018 capital injection. The Commission had found in the 2020 Decision that that measure did not constitute aid.












(8)


On 15 and 17 July 2025, Denmark and Sweden, respectively, exceptionally agreed to waive their rights deriving from Article 342 TFEU, in conjunction with Article 3 of Regulation 1/1958 (10) and to have this decision adopted and notified in English.




2.   DETAILED DESCRIPTION OF THE MEASURE

2.1.   The beneficiary









(9)


The alleged beneficiary of the measure is PostNord Logistics A/S (PNL), a wholly-owned subsidiary of PostNord Group AB (“PostNord Group”) which, in turn, is a subsidiary of PostNord AB. The latter is co-owned by Denmark (40 %) and Sweden (60 %), while voting rights are shared 50-50 between those two States. The whole corporate group including all its subsidiaries is referred in this decision as “PostNord”. PNL’s activities were to provide traditional road freight services (pallets and groupage) and courier services to customers in Denmark and they ceased in 2024.




2.1.1.   PostNord









(10)


PostNord AB was created following a merger between Post Danmark and Posten AB in 2009 (11). The intention behind the merger was to establish a more robust undertaking and to meet increasing pressure on the companies’ core product, i.e. the distribution of letters. It was expected that the merger would result in significantly reduced costs due notably to the sharing of IT and logistics infrastructure. The ownership structure is shown in Figure 1 below.

Figure 1


PostNord's ownership structure













Source:



Danish authorities
















(11)


PostNord is active on the Danish, Swedish, Norwegian and Finnish markets of postal services and provides courier, cargo and logistics services in the Nordic region and in the rest of Europe.




2.1.2.   Decision making in the PostNord group









(12)


Neither the Danish nor the Swedish State in their capacity as a public authority are formally represented in the management of PostNord Group, nor are they directly involved in appointments (including that of the President and Group CEO of PostNord Group (12)). The Board of Directors of PostNord AB (PostNord Group’s parent company), on the other hand, is composed of eight persons (out of 11) nominated by Denmark and Sweden (and appointed by the Annual General Meeting, where both States have 50% of the votes). Two out of eight directors of PostNord AB’s Board are also employed as civil servants (one by Sweden and one by Denmark). The Swedish civil servant is Deputy Director at the department of State-owned enterprises at the Ministry of Enterprise and Innovation. The Danish civil servant is Deputy Director-General at the Ministry of Finance. The corporate links between Denmark, Sweden, the Annual General Meeting, the Board of Directors of PostNord AB and the management of PostNord Group are shown in Figure 2. In addition, the Board of PostNord AB includes also 3 employee elected representatives.

Figure 2


Management of PostNord Group













Source:



PostNord’s report from 2018
















(13)


The Board of Directors of PostNord AB is responsible for appointing and dismissing the President and CEO of PostNord Group. The President and CEO of PostNord Group is responsible for day-to-day administration of the company according to the Board’s guidelines and directions. The relationship between the Board of Directors of PostNord AB and the CEO of PostNord Group is governed by the Board’s rules of procedure. The Group Executive Team assists the President and CEO of PostNord Group.












(14)


As a rule, Denmark can nominate four directors (‘Red directors’) and Sweden can nominate four directors (‘Yellow directors’) onto the Board of Directors of PostNord AB. The Chairman needs to be agreed upon jointly by both States. In addition the Board of PostNord AB also includes 3 elected employee representatives. This makes 11 Board members that in principle decide by simple majority; exceptions apply for some decisions for which at least one Red and one Yellow director have to vote in favour. None of the directors has a veto and the two civil servants have no special role or different voting power compared to other Board members. Decisions on internal group capital injections exceeding SEK […] (*1) million (approximately EUR […] million) need to have the approval of the Board of Directors of PostNord AB. (13)













(15)


For the quorum of board meetings, half of the directors should be present, including at least one director nominated by Denmark and one director nominated by Sweden.




2.2.   The measure under assessment

2.2.1.   Description of the 2018 capital injection









(16)


On 30 November 2018, the Board of PNL recommended a capital injection of DKK 115 million (approximately EUR 15.4 million) to the management of PostNord Group following an extraordinary general meeting on 30 November 2018. During the 2018 autumn, PostNord Group conducted an economic analysis of PNL’s business plan and of the turnaround plan linked to the business plan. The turnaround plan aimed at addressing the negative financial results of the previous years. Based on this analysis, PostNord Group was to decide whether a capital injection into PNL could be a rational and sound investment. This analysis was finalised on 3 December 2018 and resulted in a recommendation from the management of PostNord Group to the Board of Directors of PostNord AB, dated 7 December 2018, to approve the capital injection into PNL by PostNord Group.












(17)


On 11 December 2018, the Board of Directors of PostNord AB decided to proceed with the capital injection, to be paid out in several tranches in accordance with the recommendation from PostNord Group’s management. The approval of the Board of Directors of PostNord AB was required because the investment exceeded SEK […] million (see recital (14)).












(18)


The 2018 capital injection has been paid to PNL in three tranches:






(i)


On 20 December 2018, the first tranche of DKK 70 million (approximately EUR 9.37 million) was transferred to PNL.










(ii)


The second tranche of DKK 15 million (approximately EUR 2.01 million) was paid out in May 2019, following an evaluation carried out by PostNord Group of PNL’s performance in Q1 2019, and










(iii)


The remaining tranche of DKK 30 million (approximately EUR 4.02 million) was paid out in November 2019, following an evaluation of PNL’s performance from April to October 2019.








2.2.2.   ITD’s complaint’s regarding the 2018 capital injection









(19)


In its complaint, ITD submitted that the 2018 capital injection constitutes State aid pursuant to Article 107(1) TFEU, notably because it is granted from State resources and imputable to Denmark and Sweden and, in addition, because it has not been made on market terms.












(20)


In the complainant’s view, the decision of the management of PostNord Group to proceed with the 2018 capital injection was influenced by Denmark and Sweden through the Annual General Meeting and/or the Board of Directors of PostNord AB. In this light, it refers to the conditions set by the Court in its judgments in Stardust (14) and Commerz Nederland (15).












(21)


The complainant argues that the 2018 capital injection was imputable to the States because PostNord AB (the ultimate parent company of PNL) is wholly owned by Denmark and Sweden; because the two States nominate their Board members; and because there are two members on the Board who are also employees of the States (see recital (14)). While these arguments refer to PostNord AB and not to PostNord Group, according to the complainant the fact that the decision to inject capital into PNL had to be taken by the Board of Directors of PostNord AB (because it exceeded SEK […] million) confirms that Denmark and Sweden were involved.












(22)


The complainant emphasises that the ‘granting date’ of the 2018 capital injection is the date when the 2017 annual report referred in recital (2)(i) was published (16), meaning that the assessment on whether the measure would be market conform needs to have been carried out before June 2018. It alleges that this did not happen.












(23)


In addition, the complainant refers to articles in the Danish newspapers Politiken and Berlingske. The complainant claims that the article in Politiken (17) shows that the Danish and Swedish States are not “just” involved in PostNord’s management, but that they are integrated in PostNord’s management decisions to an extent that any important financial business decision with State aid implications by PostNord is directly imputable to Denmark and Sweden. The article in Berlingske (18) allegedly shows that the decision to inject capital was taken by the owners (i.e. Denmark and Sweden) and not by the Board of Directors of PostNord AB independently. The complainant has provided its own translation of part of the article in Berlingske, which reads as follows:
“According to the draft Minutes from the meeting, [the Chairman of the Board of Directors of PostNord AB] said that it is the responsibility of the Board of Directors to put forward the facts of the case and inform the owners that “we have a problem”, but that it is not the Board of Directors which adopts the decision about the capital injections – it is a decision by the owners, i.e., the Swedish and Danish States” (Emphasis added by the complainant).












(24)


In the same vein, the complainant alleged that Denmark, by having appointed the Deputy Director-General at the Danish Ministry of Finance as Board member, breaches a “crucial principle of the Danish Ministry of Finance”. Subsequently the complainant explained that according to the Danish Ministry of Finance this principle means that, “the main rule is that State employees should not be elected as Board members in State owned companies” (19)
.













(25)


Finally, the complainant noted that the fact that the replies of Denmark and Sweden to the Commission’s requests for information are partly prepared by PostNord’s management is an indicator for imputability.












(26)


As regards the market conformity of the capital injection, the complainant, based on PNL’s financial performance in the 2013-2017 (20) period, deems it inconceivable that a capital injection into PNL would result in any positive return, and thus that a market economy investor would inject capital into PNL. Indeed, the complainant submitted that, due to PNL’ chronic financial losses and negative EBIT over the period 2013-2017, as well as a negative equity in 2017, PNL was in such financial difficulties that no private investor would have contributed capital to it. Moreover, the complainant deems it impossible to argue that the prospects for PNL in the future were good. In this regard, it refers to the “complete financial failure” of one its major investment projects in 2016, namely the acquisition of GP Spedition ApS. As of 22 June 2018, GP Spedition ApS entered into bankruptcy proceedings.




2.2.3.   The assessment of the 2018 capital injection in the 2020 Decision









(27)


In the 2020 Decision, with reference to the capital injection to PNL, the Commission found that (i) PostNord Group’s financial support to PNL implied the use of State resources because its parent, PostNord AB, is 100% owned by the States, but (ii) in the absence of sufficient indicators of the exercise of actual influence or control by Denmark and Sweden in the capital injection at hand – beyond the mere automatic consequences of public ownership, which are, according to the case law, insufficient to prove imputability – the capital injection to PNL cannot be considered imputable to Denmark and/or Sweden.












(28)


As a result, the 2020 Decision concluded that the measure did not constitute State aid for lack of imputability, on the basis of the analysis of 12 factual elements (21).




2.2.4.   The assessment of the 2018 capital injection in the judgment in case T-525/20









(29)


The judgment in case T-525/20 confirmed that it is apparent from PNL’s annual report for 2018 that the 2018 capital injection had been made by PostNord Group to PNL and that, in view of its amount, the approval of PostNord AB’s Board of Directors was required, in line with the internal rules of PostNord Group (22).












(30)


As regards the assessment of the imputability of the 2018 capital injection in the 2020 Decision, the General Court found that the Commission’s examination was incomplete and insufficient as regards (i) the organic links between the Danish and Swedish States and PostNord AB (23), (ii) the nature of PostNord’s activities (24), (iii) the supervision and control exercised by the States over the capital injection approved by PostNord AB, through the existence of a dialogue between the members of PostNord’s Board of Directors and the Danish and Swedish States (25), and (iv) other indicators relating to the unlikely nature of the lack of involvement of the Danish and Swedish States in the capital injection, including its “compass” (i.e., the amount) (26).












(31)


With reference in particular to the organic links (see (i) above), the General Court stated that the indicators of an organic nature put forward by the complainant tend to establish that, at the time of the 2018 capital injection to PNL, “[PostNord AB] had a limited degree of independence from the Danish and Swedish States, given that its board of directors was composed of 8 members out of 11 the appointment of whom fell to the ministers of those States, and 2 of whom were, moreover, senior civil servants”, corroborated by the finding that meetings of PostNord AB’s Board of Directors must be attended by at least one member appointed by the Danish State and one member appointed by the Swedish State (27). Therefore, the Commission should have examined other indicators (see recitals (56)-(59))).




2.2.5.   The Danish and Swedish authorities’ position following the judgment in case T-525/20

2.2.5.1.   Imputability









(32)


The Danish authorities submitted that during 2024 all activities of PNL have been discontinued. Most of the lines of business of PNL were closed and two minor lines of business were sold on market terms to an external company and to Post Danmark A/S, respectively. Therefore, the company is no longer active in the logistics market or in other markets. This decision is part of PostNord AB's new strategy, aimed at simplifying the product portfolio in Denmark and focusing the business on parcels. Because PNL is no longer active, the board of directors of PNL decided on 1 December 2025 to recommend to the owner, PostNord Group, that a solvent liquidation of PNL should be carried out.




2.2.5.1.1.   PostNord AB’s decision-making / corporate governance









(33)


The Danish and Swedish authorities have provided the Commission with further arguments that in their view support a conclusion that the 2018 capital injection was not imputable to the States in light of the indicators identified by the General Court in the judgment in case T-525/20.












(34)


In a joint submission dated 6 March 2024, the Danish and Swedish authorities described the corporate governance of PostNord AB. In accordance with that information, PostNord AB is a Swedish limited liability company and, like privately owned companies, is subject to the Swedish Companies Act (28) as the overall framework, with the general meeting as the company’s highest decision-making body. The Swedish State-owned companies, like privately owned companies in Sweden, are therefore independent legal entities and the Government is not entitled to instruct a State-owned company, or its Board of Directors, to act in a certain way other than through the general meeting. The Danish State is represented at the general shareholder’s meeting by the Minister of Transport or his deputy, whereas the Swedish State is represented by power of attorney issued by decision of the Ministry of Finance (29).












(35)


The Danish and Swedish authorities submit that the decision to appoint Board members in PostNord AB is made by the general meeting of PostNord AB. The Danish State has 50% of the votes and the Swedish State has the other 50%. In this context, there normally is a mutual understanding between the two State owners regarding the 8 Board members in PostNord AB nominated by the States. The Danish and Swedish authorities further submit that the eight Board members in PostNord AB appointed by the general meeting are all characterized as independent Board members and that there are no “government appointed” members on the Board. On the contrary, all Board members are appointed in accordance with the Swedish Companies Act (30), which applies to both private companies and State-owned companies. Also the directors nominated by the Danish State are fully subject to the rules laid down in the Swedish Company Act because PostNord AB is subject to Swedish law. According to the Swedish State’s Ownership Policy (31), the nominees are selected from a broad recruitment base in order to utilise the expertise of women and men, as well as individuals of various backgrounds and experiences, including the ones employed with the Government Offices (32). Indeed, the Board nomination process of State-owned companies, including PostNord AB was (at the time) coordinated by the Swedish Ministry of Enterprise and Innovation at the Government Offices and a dialogue/contact is also established with the Danish State (represented by the Danish Ministry of Transport Government Office officials) (33). In addition to the 8 Board members nominated by the two States, there are also 3 employee representatives and 3 employee representative deputies.












(36)


Furthermore, it follows from the Danish State’s Ownership Policy of April 2015 (34) that the Board and management of companies under State ownership are responsible for running the company on behalf of the owners. This document outlines the framework, expectations, and recommendations on how the Danish State would exercise its ownership in State-owned companies, whether wholly or majority-owned. It aims to ensure a structured and consistent approach across all ministries and to support value creation and good corporate governance in State-owned companies. Some of these recommendations, which are not compulsory, are the following:






(a)


The State exercises its influence through the election of external Board members, establishing an “arm’s length” relation between the State as owner and the company’s Board (35), whereby the company is run on its own terms and based on what serves the company best (36). However, there are no specific written rules on how the Danish Board members should act at Board meetings, apart from the general guidelines of arm’s length for the Danish Board members. There are no obligations for the Danish Board members to brief the Danish owner before, during or after the Board meetings. The owner also does not get insight on a regular basis into what has been discussed at the Board meetings, unless of course the Board decides to bring a case to the attention for the Minister.










(b)


The State, as owner, sets the overall strategic framework in agreement with company management, while the Board handles the strategic direction within this framework (37).










(c)


The Board of Directors, in consultation with the relevant “owner” minister, must set concrete financial goals, such as expected returns comparable to those of private investors (38).










(d)


The Board’s composition and qualifications are reviewed regularly, at least annually, between the minister and the chair of the Board (39).
















(37)


The Swedish State exercises its ownership in State-owned companies in accordance with the Swedish Companies Act, which is supplemented by the Swedish’s State Ownership Policy (40), which sets out the Government’s mandates and objectives, applicable frameworks and important issues of principle regarding the corporate governance of State-owned enterprises. In particular, with reference to the Swedish’s State Ownership Policy, the Swedish authorities submit that:






(a)


Similar to privately owned companies, the general meeting of State-owned enterprises is the company’s highest decision-making body and the forum in which the shareholders exercise their influence. The Government is therefore, in accordance with the Swedish corporate governance model and by corporate law, as reiterated in the Swedish’s State Ownership Policy, not entitled to instruct the companies to act in a certain way other than through the general meeting.










(b)


Board members of State-owned companies, like those in private companies, are legally required under the Swedish Companies Act to act independently and in the best interests of the company, bearing personal responsibility and potential liability for their actions (41). This duty applies equally to civil servants serving on the Board (so-called “investment directors”, which have the same mandate, responsibility and tasks as other Board directors (42)) (43). No written or informal behaviour expectations are conveyed by the State to the members of the Board on how to act in their respective capacities as Board members. This would clearly contravene the Swedish corporate governance model and policy on separation of functions of each governance body under the Swedish Companies Act.










(c)


Under the State’s Ownership Policy, the work within the Government offices is allocated so that the responsibility for sector-specific legislation for PostNord AB typically resides with divisions other than those involved in the management of State-owned enterprises. This maintains the separation of the roles of the State as owner and regulator.










(d)


With respect to section 3.2 in the Swedish State’s Ownership Policy, it follows that in certain specific cases “owner instructions” are decided upon by the general meeting of the State-owned company in question (44). However, no owner instructions have been decided upon for PostNord AB. In this respect it may be noted that a decision by the general meeting is a prerequisite for such instructions to be binding upon the Board.










(e)


Section 4.3.4 of the Swedish State’s Ownership Policy provides for a so called “coordination responsibility”, which entails that “whenever the company is faced with particularly important decisions, the board of directors should, through the chairman, coordinate in writing its view with that of the representatives of the owner. It is incumbent upon the board to decide the cases in which such coordination via the chairman is required ahead of a particular board decision.” This is the only case in the governance model for Swedish State-owned enterprises where the owner is entitled to express its view on operational matters, and it is incumbent upon the Board to decide the cases in which such coordination via the chairman should occur prior to a particular board decision. With respect to the 2018 capital injection, no such coordination took place with the Swedish owner since it did not fall within the “coordination responsibility”. Further, it may be noted that this coordination responsibility has historically been applied in a very limited number of cases in relation to all the Swedish State-owned enterprises (45).
















(38)


Furthermore, the Swedish authorities submit that the Swedish State was not informed about the 2018 capital injection beforehand and was not involved in the transfer. Directors nominated by the States are not subject to any special voting rules and had no right of veto in the case at hand. Certain exceptions in the Shareholders’ Agreement in relation to voting rights were not applicable at the time the decision at issue was adopted. Under Article 3.9.1 of the Shareholders’ Agreement, a simple majority was required for a decision such as the one at issue on the 2018 capital injection. The influence over the decision-making on PostNord AB’s Board could have taken place only by coordinated joint action by the Danish and Swedish States . However, there has been no such joint action. Nor has there been any coordination between PostNord AB’s Board and the Swedish State as owner prior to or in connection with the decision in question nor have the Board members nominated by the Swedish State been subject to any instructions from the State regarding the capital injection at issue.












(39)


In accordance to the States, there are no specific reporting obligations of the Board to the State owners. In the Danish and Swedish’s view, both owners are regularly informed about the company's performance at formal regular meetings, so called “owner’s dialogues” as well as quarterly ownership meetings regarding, amongst others, the company’s quarterly accounts, in which the company's management and chairman of the Board also participate (46). “Owner’s dialogues” meetings were introduced after an agreement of 20 October 2017 between the Danish State and the Swedish State (“October Agreement”) (47). This institutionalized “owner’s dialogue” serves to track and follow-up any public policy targets and financial targets of the company (such targets are decided upon by the general shareholder’s meeting and in case of PostNord AB only consist of financial targets). A matter can also be brought to the attention of the Ministry of Enterprise and Innovation (Department of ownership of State-owned enterprises) by the chairman of the Board on an ad-hoc basis in order to inform on important issues that are deemed vital and natural for an owner to be aware of.












(40)


According to Article 4.3 of the Rules of Procedure of the Board of PostNord AB (48) (“Rules of Procedure”), the Board of Directors of PostNord AB shall “[…]” It is the Board that shall assess in which cases a strategic review should take place and shall initiate the so called “coordination responsibility”. Consequently, according to the Swedish authorities, it is not for the States (in their capacity as owners or otherwise) to decide whether or not e.g. a bankruptcy of a subsidiary like PNL, or its rescue, would – in any case –.












(41)


The Danish authorities argue that, although two of the members of PostNord AB’s Board were civil servants at the time of the 2018 capital injection, this does not alter the fact that any interaction between the Board and the States adhered to the arm’s length principle.




2.2.5.1.2.   Imputability indicators following the judgment in case T-525/20









(42)


The Danish authorities submit that:






(a)


Regarding the assessment of the organic links between, on the one hand, the Danish and Swedish States and, on the other, PostNord AB (49): (i) the case concerns a standard intra-group capital injection from the parent company, PostNord Group AB, to PNL to restore its equity; the 2018 capital injection into PNL was a pure business decision of no particular importance to PostNord AB; it was only brought before the ultimate parent company, PostNord AB, for formal reasons (see recital (14)); (ii) importantly, the approval of the capital injection by PostNord AB only required a simple majority of the Board according to the Shareholders’ Agreement; in accordance to the minutes of PostNord AB’s Board meeting concerning this topic, no civil servant expressed a view or opinion about the approval of the 2018 capital injection and all members of the Board of Directors approved the decision; (iii) there is also no evidence of a dialogue between PostNord AB and the owner States in relation to the 2018 capital injection. The provisions in the Shareholders’ Agreement concerning the undertaking to act in good faith in relation to each other and the resolution of deadlock, to which the General Court refers in paragraph 67-68 of the judgment in case T-525/20, were not triggered in relation to this decision (50), as this was a simple majority decision, the general rule for board decision making under the Swedish Companies Act (51). The mere existence of a deadlock clause (point 3.11 of the Shareholders’ Agreement) does not demonstrate relevance to the decision to grant the 2018 capital injection.










(b)


Regarding the existence of a dialogue between the members of PostNord AB’s Board and the Danish and Swedish States (52), there was no such dialogue between PostNord AB and the Danish and Swedish States on the restructuring of “the Danish Business” relating to PNL. In fact, the term “the Danish business” used in the 2017 annual report is not a uniform or predefined concept within PostNord; its meaning depends entirely on the context in which it is used. Specifically, in relation to the restructuring of “the Danish Business,” the key reference is the October Agreement, where “Danish business” clearly refers to Post Danmark A/S and the financing of its new production model (53).










(c)


Regarding the nature of PostNord AB’s activities (54), the core purpose of PostNord AB and PostNord Group is to provide nationwide postal services in Denmark and Sweden (directly or through their postal distribution subsidiary PostNord Sverige AB and Post Danmark A/S), and, through rural delivery services for customers, to provide basic financial services in Sweden. On the other hand, PNL was not entrusted with the provision of services of general economic interest, but provided only road freight logistics services and courier services to customers. The activities of PNL fell within the outer limits of PostNord AB’s corporate purpose – “and directly or through subsidiaries or associated companies, to operate activities in accordance therewith”. PNL was of secondary importance to PostNord AB and PostNord Group and a hypothetical bankruptcy of PNL would not have resulted in any significant political or societal consequences for Denmark, including in its role as postal service regulator (55). Indeed, it would not have affected Post Danmark’s ability to fulfil its universal service obligation if PNL had not been operating at the time of the 2018 capital injection. In fact, PNL and Post Danmark A/S operated in distinct business areas. While some services were exchanged between these companies, these transactions were of limited economic importance and occurred only when explicitly requested by the purchasing company. These services covered terminal rentals, staff support, administrative assistance, and transport using excess lorry capacity, among others. All services were provided at arms length, meaning full costs – including a margin – were invoiced between the two entities.










(d)


Regarding the compass of the 2018 capital injection (56), the amount of the capital injection – equal to a mere 0,3 % of PostNord Group’s total revenues – should be seen in light of the abovementioned secondary importance of PNL for PostNord AB and PostNord Group.
















(43)


The Swedish authorities submit that:






(a)


Regarding the assessment of the organic links between, on the one hand, the Danish and Swedish States and, on the other, PostNord AB (57), the Swedish State has not in any way been involved in or influenced the decision-making process with respect to the 2018 capital injection by providing instructions or otherwise since: (i) each of the directors of the Board nominated by the State(s), including any civil servants, acts independently from the State and serve in their personal capacity as Board members and not as representatives of the State (which would be a violation of Swedish law, their fiduciary duties, and principles of good corporate governance) (see recital (37)); (ii) the Swedish Constitution (Freedom of the Press Act (58)) requires distinguishing between actions taken by an official in its official capacity versus in its capacity as a holder of “another position” (e.g., as a member of the Board of PostNord AB) and the Swedish Supreme Administrative Court has ruled that serving on a company board is such a separate role (59); (iii) the decision regarding the 2018 capital injection did not trigger the “coordination responsibility” between PostNord AB’s Board of Directors and the Swedish State under the Swedish State’s Ownership Policy (see recital (37)(e)); (iv) there are no special “circumstances surrounding the appointment of the members of the management bodies of a public undertaking [such as PostNord AB] […] capable of establishing that that undertaking has a limited margin of independence from the State which controls it” (60).










(b)


Still regarding the assessment of the organic links (61), the roles of the Swedish State as owner of PostNord AB and postal regulator are strictly separated. The governance of PostNord AB is handled by the Department for State-Owned Enterprises of the Ministry of Enterprise and Innovation (“DSOE”), which is entirely separate from the ministry regulating the postal sector (see recital (37)(c)). Therefore, the employees of DSOE (including any civil servants also having an assignment as directors of the Board of PostNord AB) are not simultaneously performing any duties with respect to the regulation of the postal sector market, such duties being handled by other Government Officials in another division/department. Thus, civil servants in DSOE are not performing their official duties in areas of activity with a direct link to PostNord AB and it cannot therefore be inferred that there is a likelihood for these civil servants “to maintain informal contacts with agents of the ministries to which they belonged and, thus, to relay the influence of the said States in the decision-making process within PostNord”. Finally, as per the Shareholders’ Agreement entered into by the States, as regards the representatives of the States, the Board in PostNord AB consists of eight Board members (and no deputies) – out of eleven – appointed by the shareholders’ meeting (section 3.2.1) and each of the States nominates four (sections 3.2.2 – 3.2.4). This means that the States are not appointing any board members (62). In this context, the Shareholders’ Agreement ensures each owner's Board nominations are respected, which is essential for influencing the company's strategic direction. The Board acts independently, and the States are not present at board meetings. Standard provisions like voting thresholds or acting in good faith are common in such agreements and do not imply State control or imputability, especially since the agreement binds only the shareholders, not the company itself.










(c)


Regarding the nature of PostNord AB’s activities (63), there exists no direct link between the areas of activities of the Swedish State and the area of activity of PNL. PNL’s activity consisted in road freight logistics service and courier services to customers in Denmark and the company did not provide postal services in Sweden. Hence, the 2018 capital injection (at the time) would not have had any impact, positive or negative, on the fulfilment of the universal postal service obligations in Sweden. Furthermore, PostNord AB’s articles of association and Swedish corporate law require the company to operate on a purely commercial basis, with no public policy objectives unless explicitly stated. Therefore, even the universal postal service obligations must be fulfilled commercially.








2.2.5.2.   Advantage









(44)


The Danish and Swedish authorities submit that the 2018 capital injection into PNL of approximately DKK 115 million (EUR 15.4 million) did not confer an economic advantage on PNL, since the measure complies with the Market Economy Investor Principle (“MEIP”).












(45)


Both States’ authorities reiterate that, as they had noted in the procedure leading to the adoption of the 2020 Decision, prior to deciding on the 2018 capital injection, PostNord AB’s Mergers and Acquisitions department undertook a thorough economic evaluation of the profitability of the capital injection and such evaluation clearly demonstrates that it was a rational business decision for PostNord AB to proceed with the 2018 capital injection. Thus, the capital injection is the result of normal market economic behaviour of PostNord AB.












(46)


Indeed, on 30 November 2018, PNL’ Board recommended that PostNord Group AB should inject the necessary capital into PNL. Based on the economic analysis finalised on 3 December 2018 of PNL’ business plan and turnaround plan, PostNord Group’s management concluded that a capital injection would be rational and sound. PostNord Group’s mandate to provide the capital injection was approved by PostNord AB on 11 December 2018. The capital injection was treated as an equity investment and assessed against a rational investor’s cost of equity. The valuation was carried out using a Cash-Flow-to-Equity model in which cash generated was retained in the company and offset in the net-debt calculation at an assumed exit date. The exit value was derived using a multiples-based approach, and the cost of equity applied was calculated under the CAPM framework. The economic analysis finalised on 3 December 2018 concluded that the capital injection was economically rational and produced satisfactory IRR and NPV, even after applying additional risk adjustments to the company’s business plan to ensure prudence in the decision (see Figure 3). This conclusion held both when the analysis considered the company’s stand-alone cash flows and when it included the effects of insolvency in a counterfactual scenario (see Figure 4).

Figure 3


Cash flows and Equity NPV with the 2018 capital injection in the adjusted business plan







Figure 4


NPV of the insolvency scenario – Insolvency effects


















(47)


The economic analysis finalised on 3 December 2018 also considered a controlled shutdown of PNL as an alternative to insolvency proceedings, which, similarly to the insolvency proceedings option, was proven to be less attractive for PostNord Group than the 2018 capital injection (see Figure 5).

Figure 5


NPV for a controlled shut down alternative


















(48)


On 11 December 2018, the Board of Directors of PostNord AB approved the capital injection, to be disbursed in several tranches in line with the recommendation of PostNord Group’s management (see recital (18)).




3.   ASSESSMENT OF THE MEASURE

3.1.   Existence of aid

3.1.1.   Granting act and granting moment of the measure









(49)


The complainant puts forward that the ‘granting date’ of the 2018 capital injection is the date when the 2017 annual report referred in recital (2)(i) was published (64).












(50)


According to well established case-law, the criterion for determining the moment of the granting of aid is the legally binding act which the national authority adopts (65).












(51)


Consequently, the Commission preliminarily considers that the above-mentioned statement in the PNL’s 2017 annual report, by itself, does not constitute a granting act. It amounts to a general, non-legally binding statement of intent by the parent company and is expressly conditional on a further assessment of the amount involved and on whether any capital injection would constitute a rational and sound investment under market conditions. On the contrary, the granting act of the alleged measure (the 2018 capital injection) is to be considered as having taken place through the Board of Directors of PostNord AB’s decision to approve the 2018 capital injection, to be disbursed in several tranches in line with the recommendation of PostNord Group’s management (see recital (18)). This occurred on 11 December 2018, which is to be considered the granting moment of the 2018 capital injection, as the decision of PostNord AB’s Board is the act that provides for the 2018 capital injection in the form of legal obligation (66).




3.1.2.   Economic activity and notion of undertaking









(52)


The Danish and Swedish authorities acknowledge that PNL carried out activities of an economic nature. The Commission observes that PNL offered road freight logistics services and courier services to customers against remuneration in Denmark and was in competition with other providers. Therefore, the provision of these services on that market constitutes an economic activity. For those reasons, the 2018 capital injection, to the extent that the other conditions for being qualified as a State aid measure are met, may have benefited an undertaking exercising an economic activity in the meaning of Article 107(1) TFEU.




3.1.3.   Imputability and State resources









(53)


State resources include all resources of the public sector (67), including resources of public undertakings on which the public authorities can exercise, directly or indirectly, a controlling influence (68). As pointed out by the Court of Justice, “since the resources of public undertakings are subject to the control of the State and are therefore at its disposal, those resources fall within the scope of the concept of ‘State resources’, within the meaning of Article 107(1) TFEU” (69). It is irrelevant whether an institution within the public sector is autonomous or not (70). The Commission notes that PostNord Group, via its parent PostNord AB, is 100% owned by the State. The Commission therefore provisionally concludes that PostNord Group’s financial support to PNL implied the use of State resources.












(54)


To assess whether a measure granted through public undertakings is imputable to the State, it is necessary to determine whether the public authorities can be regarded as having been involved, in one way or another, in adopting the measure (71).












(55)


In the judgment in case T-561/18 (72), the General Court recalled a number of indicators of imputability to the State for the Commission to take into account. These indicators concern in particular (73):






(a)


whether the deciding entity could take the contested decision without “taking account of the requirements of the public authorities”;










(b)


whether, apart from organic factors linking it to the State, it had to take account of directives of a government;










(c)


its integration into the structures of the public administration;










(d)


the nature of its activities;










(e)


the exercise of its activities on the market in normal conditions of competition with private operators;










(f)


the legal status of the undertaking (i.e. subject to public law or ordinary company law);










(g)


the intensity of supervision exercised by public authorities over its management, and;










(h)


any indicator showing, in the particular case, any involvement by the public authorities in the adoption of the measure, or the unlikelihood of their not being involved, having regard also to its “compass” (“ampleur”), its content, or the conditions it contains.
















(56)


As regards the potential imputability of the capital injection to PNL to the Danish and Swedish States, the General Court found in its judgment in case T-525/20 that the Commission’s examination of the alleged imputability of the 2018 capital injection was incomplete and insufficient as regards the organic links between the State and PostNord (see recital (55)(b)), the nature of PostNord’s activities (recital (55)(d)), the supervision and control exercised by the States over the capital injection approved by PostNord, through the existence of a dialogue between the members of PostNord’s Board of Directors and the Danish and Swedish States (recital (55)(g)), and other indicators relating to the unlikely nature of the lack of involvement of the Danish and Swedish States in the capital injection, including its “compass” (recital (55)(h)).












(57)


The Commission firstly notes that certain imputability indicators – as listed in recital (54) – are not fulfilled with reference to the 2018 capital injection. In particular:






(a)


The deciding entity (PostNord Group) could take the decision to inject the capital injection into PNL without “taking account of the requirements of the public authorities”. This is because the decision of PostNord Group to inject capital into PNL happened following a request of PNL. PNL took the decision to request capital during an extraordinary general meeting of its board on 30 November 2018. PostNord AB, in line with the internal governance policy of PostNord, was involved in the decision-making process since the intended capital injection exceeded SEK […] million. While it is highly likely that Denmark and Sweden were aware of the intended capital injection (notably since two board members were also active as civil servants in Denmark and Sweden respectively), it does not appear that the States, nor the two civil servants that are Board members, expressed any particular view regarding the capital injection for PNL. This is confirmed by the minutes of PostNord AB’s board meetings of 7 December 2018 and 11 December 2018. Moreover, as follows from the above, the decision to implement a capital injection was incited by the management of PostNord Group and not by PostNord AB (see recital (55)(a)).










(b)


PostNord AB and its subsidiaries are not integrated in the public administration of Sweden and/or Denmark (see recital (55)(c)).










(c)


PostNord AB’s activities and those of its subsidiaries (i.e. PostNord Group and PNL) are, in general, purely commercial and exercised in normal conditions of competitions with private operators, excluding certain of Post Danmark’s activities (e.g. USO). In any event, PNL’s activities are purely commercial (see recital (55)(e)).










(d)


PostNord Group, via PostNord AB, is 100% owned by Denmark and Sweden, as are almost all its subsidiaries, including PNL. Despite PNG being a publicly owned company, it is governed by private law (see recital (55)(f)).
















(58)


Nevertheless, based on the judgments in case T-561/18 and in case T-525/20, the Commission notes that since PostNord AB is a public undertaking and that relations between the State and public undertakings are close, it is not necessary to establish that the public authorities had, on the basis of a precise inquiry, specifically incited PostNord to take that measure to make a measure imputable to the State (74).












(59)


As a consequence, the Commission considers the following factors (see recital (56)) relevant for constituting indicators of imputability of the 2018 capital injection to Danish and the Swedish States, factors that require further investigation:






(a)



Organic links between PostNord AB and the Danish and Swedish States. According to the General Court, the Commission’s investigation should provide additional details regarding the circumstances surrounding the appointment by the States of PostNord’s Board of Directors’ members (simultaneously performing senior management duties in government ministries in Denmark and in Sweden, in areas of activity with a direct link to public undertakings – including PostNord) (75). Considering that the judgment in case T-525/20 found that the organic factors were capable of constituting a non-negligible imputability indicator (76), further evidence may help the Commission to assess how the Board of Directors of PostNord operates and the degree of (in)dependence of its members from their respective national authorities (77). Namely, it is not yet entirely clear whether the members of the Board of Directors of PostNord AB, and in particular the two members of the Board that were civil servants, in any way are required to report or reported back to the national authorities on Board discussions or maintained informal contacts with the ministries to which they belong allowing those public authorities to influence the decision-making process in PostNord as regards the 2018 capital injection. This is in particular because the Swedish and Danish authorities referred to a “coordination responsibility” between the State owners and the Board of Directors of the State-owned company under Section 4.3.4 of the Swedish State’s Ownership Policy (see recital (37)(e)), to “owner instructions” (see recital (37)(d)), to “owners dialogue” and to matters that can be brought to the attention of the Swedish Ministry of Enterprise and Innovation (Department of ownership of State-owned enterprises) by the chairman of the Board on an ad-hoc basis in order to inform the Ministry on important issues that are deemed vital and natural for an owner to be aware of (see recital (39)). The Commission is also aware of an obligation on PostNord AB to consult its owners under Article 4.3 of the Rules of Procedure (see recital (40)). The investigation may provide further information as to whether PostNord AB’s Board of Directors’ decision to adopt the 2018 capital injection fell under, or should have been considered to fall under these provisions. Furthermore, it is not clear whether the Danish authorities have put in place any safeguards – similar to the safeguards that the Swedish authorities have described in recitals (37)(c) and (43)(b) – in place for those civil servants who have been nominated by Denmark and appointed as directors of PostNord AB’s Board by the shareholders’ meeting.










(b)



Existence of a dialogue between the members of PostNord’s Board of Directors and the Danish and Swedish States. The investigation may determine whether, in light of PostNord AB’s annual report for 2017, the “dialogue with the owners on financing the restructuring of the Danish business” comprised also PNL or only Post Danmark’s activities, as, based on this report, the Danish business could be understood to encompass both Post Danmark and PNL.










(c)



The nature of PostNord’s activity. Although PNL is not responsible for the universal postal service, it still needs to be determined to what extent the capital injection to PNL may have had an impact on the fulfilment of the universal service obligation, considering that the capital injection to PNL “had to be approved by the board of directors of PostNord, a company whose corporate purpose is, primarily, to provide postal services in Denmark and Sweden and operate activities in accordance with those services”, which is why “the decisions taken by its board of directors were deemed to coincide with such a corporate purpose” (78). Thus, the Commission needs to determine to what extent the 2018 capital injection may have had an impact, positive or negative, on the fulfilment of the universal service obligations of PostNord AB and its group.










(d)



The “compass” of the capital injection to PNL. The Commission has to analyse – together with the above-mentioned indicators – whether the non-negligible amount of the capital injection to PNL of approximately EUR 15.4 million was of critical importance for the beneficiary of the capital injection (PNL), whose economic viability was depending on it (79). In addition, this amount exceeded the threshold above which capital injections within the group had to obtain approval from PostNord AB, the parent company of that group, whose Board of Directors had close links with the Danish and Swedish States. Indeed, since decisions on internal group capital injections exceeding SEK […] million (approximately EUR […] million) need to have the approval of the Board of Directors of PostNord AB, the amount of the 2018 capital injection exceeding the aforementioned threshold could indicate the involvement of the Danish and Swedish States in the adoption of that measure.
















(60)


Against this background, the Commission has doubts as to whether the 2018 capital injection may not be deemed imputable to the Danish and Swedish State. Consequently, the Commission will have to establish specifically whether the information, supported by evidence, available in the present case may qualify as sufficiently precise and convergent indicators of the specific involvement of the States in the decision made by PostNord AB to invest capital into PNL or rather that the absence of such involvement was unlikely.




3.1.4.   Advantage









(61)


Economic transactions carried out by public bodies do not confer an advantage, and therefore do not constitute aid, if they are carried out in line with normal market conditions (80). To that effect, the behaviour of public bodies should be compared to that of similar private economic operators under normal market conditions. Whether a State intervention is in line with market conditions should be examined on an ex-ante basis, having regard to the information available at the time the intervention was decided upon (81). Since preliminarily the Commission considers that the granting date of the 2018 capital injection is the date on which the Board of PostNord AB approved the capital injection, that assessment should be examined on the basis of the information available to PostNord before 11 December 2018 (see recital (51)).












(62)


The Commission notes that a meticulous examination, on the basis of reliable evidence available of the advantages and disadvantages of carrying the 2018 capital injection must be carried out: first, of the option of filing for the bankruptcy of PNL and, secondly, of the option of making a public investment in order to ensure the survival of the undertaking, examining, in particular, in the latter case, the prospects of profitability for the public investor.












(63)


The Swedish and Danish authorities have provided the business plan underpinning the equity injection into PNL as well as complementary information that allegedly shows that the 2018 capital injection is market conform. Nevertheless, at this stage, the Commission has doubts as to whether the available data at the time of the capital injection would have led a private investor in a comparable situation, acting on the basis of economic rationale, to make capital contributions to avoid the negative consequences of the bankruptcy of a subsidiary and ensure the survival of that subsidiary. In particular, the Commission has doubts on whether the 2018 capital injection took place in line with the MEIP, taking into account some of the assumptions in the economic analysis presented by the two States and the overall context of the capital injection:






(a)


At the time of the analysis, PNL had been regularly loss making since 2013 despite a turnaround plan launched in 2017, implemented in 2018 and that consisted, as a large part, of a set of measures of renegotiating contracts with freight and courier customers? [or other contracts?] through a commercial clean-up phase with effect from 1 January 2019 and with the objective of restoring the company to profitability starting in 2020.










(b)


PNL’s EBIT had been almost consistently negative, severely deteriorating in the latest years (2017, 2018).










(c)


PostNord explained that PNL’s losses of 2018 were exceptional losses related to losing […] customers (82). Based on the information provided, it is difficult to assess to what extent this represents exceptional circumstances, or whether these events are just part of the regular business of a company in this sector.










(d)


The business plan underpinning the 2018 capital injection rests on revenue increases (both prices and volumes are expected to increase – a rather optimistic assumption which appears to lack a clear justification or benchmarking) and cost optimization measures, The measures foreseen in the plan do not appear to imply any costs and could therefore theoretically have been implemented earlier.










(e)


PostNord explains that a major factor for success of the turnaround plan for PNL was the fact that the entire senior management of PNL was replaced during 2017, which may be true but is difficult to quantify and therefore to take into account in a MEIP assessment.
















(64)


In conclusion, the Commission has doubts as to the market conformity of the group capital injection into PNL and thus as to whether that capital injection grants an advantage to that undertaking.




3.1.5.   Selectivity









(65)


The 2018 capital injection is an individual measure targeting PNL specifically. Given that the present case concerns an individual aid measure, the economic advantage is sufficient to support the presumption that the measure is selective (83). In any event, it appears that no other undertaking in the same factual and legal situation enjoys the same advantage in the same sector or enjoys such an advantage in other sectors. Hence, the notified measure is selective within the meaning of Article 107(1) TFEU.




3.1.6.   Distortion of competition and effect on trade









(66)


PNL provided road freight logistics services and courier services to customers in Denmark as well as abroad.












(67)


There are several undertakings that provide road freight logistics services in Denmark,. These undertakings are in direct competition with PNL, and several of them, such as DHL Group, UPS and Bring (Posten Norge), are also active in other Member States.












(68)


Accordingly, the Commission considers that, if it is determined that the 2018 capital injection is imputable to Denmark and Sweden and granted through State resources, while granting an advantage to PNL, is liable to affect trade and distort competition.




3.1.7.   Conclusion









(69)


In light of recitals (65)-(68), the Commission preliminarily considers that the 2018 capital injection from PostNord Group in favour of PNL is granted selectively to PNL and that it is liable to distort competition and affect trade between Member States.












(70)


In addition, the Commission has doubts as to whether the 2018 capital injection may be imputable to the Danish and Swedish authorities and confers an advantage upon PNL. Therefore, the Commission has doubts as to whether the 2018 capital injection may constitute State aid.




3.2.   Compatibility









(71)


To the extent that the 2018 capital injection implies the possible existence of State aid within the meaning of Article 107(1) TFEU, it is necessary to assess whether it can be considered compatible with the internal market.












(72)


According to the case law of the Court, it is up to the Member State to invoke possible grounds of compatibility, and to demonstrate that the conditions for such compatibility are met (84). The Danish and Swedish authorities have however not invoked any arguments that would demonstrate the compatibility of the measures in question.












(73)


In light of the above, to the extent that the measures assessed in the present decision would constitute State aid, the Commission has doubts that they would be compatible with the internal market.




3.3.   Recovery









(74)


According to the Treaty and the Court's established case-law, the Commission should normally decide that the Member States concerned must abolish aid illegally granted when such aid has been found to be incompatible with the internal market (85). The Court has also consistently held that the obligation on a Member State to abolish aid declared incompatible with the internal market is designed to re-establish the previously existing situation (86).












(75)


In this context, the Court has established that this objective is attained once the recipient has repaid the amounts granted by way of unlawful aid, thus forfeiting the advantage which it had enjoyed over its competitors on the market, and the situation prior to the payment of the aid is restored (87).












(76)


In line with the case-law, Article 16(1) of Council Regulation (EU) 2015/1589 states that ‘[w]here negative decisions are taken in cases of unlawful aid, the Commission shall decide that the Member State concerned shall take all necessary measures to recover the aid from the beneficiary (‘recovery decision’) […]” (88).












(77)


As indicated, in the event of a negative decision providing the recovery of incompatible aid from an undertaking in the context of Articles 107 and 108 TFEU, the Member States in question are required to recover the incompatible aid. The recovery obligation may be extended to a new company to which the company in question has transferred or sold part of its assets, where that transfer or sale structure leads to the conclusion that there is economic continuity between the two companies (89). As a result, in case the 2018 capital injection will be deemed to be incompatible aid, the Commission will order the recovery of the aid granted to PNL and, since that undertaking ceased operations and may have been put into liquidation, it will need to be determined whether there is economic continuity between that undertaking and other undertakings for the purposes of the recovery of the aid.




4.   CONCLUSION

In the light of the foregoing considerations, the Commission, acting under the procedure laid down in Article 108(2) of the TFEU, requests Denmark and Sweden to submit their comments and to provide all such information as may help to assess the measure, within one month of the date of receipt of this letter. It requests your authorities to forward a copy of this letter to the potential recipient of the aid immediately.
The Commission wishes to draw Denmark’s and Sweden’s attention to Article 16 of Council Regulation (EU) 2015/1589, which provides that all unlawful aid may be recovered from the recipient undertaking.
The Commission warns Denmark and Sweden that it will inform interested parties by publishing this letter and a meaningful summary of it in the Official Journal of the European Union. It will also inform interested parties in the EFTA countries which are signatories to the EEA Agreement, by publication of a notice in the EEA Supplement to the Official Journal of the European Union and will inform the EFTA Surveillance Authority by sending a copy of this letter. All such interested parties will be invited to submit their comments within one month of the date of such publication.


(1)  A trade association with over 810 members, which are companies incorporated under Danish law active on the national and international markets for road transport of goods and logistics services. ITD's headquarters are in Padborg (Denmark), but it also operates offices in Copenhagen and Brussels.

(2)  Rate based on the Inforeuro currency converter (https://ec.europa.eu/info/funding-tenders/how-eu-funding-works/information-contractors-and-beneficiaries/exchange-rate-inforeuro_en).

(3)  Commission Decision SA.47707(2018/N) of 28 May 2018, Compensation to PostNord for Universal Service Obligations imposed on Post Danmark – Denmark.

(4)  As described in recitals (2)-(16) of the Commission decision of 12 May 2020, cases SA.52489(2018/FC) – Denmark & State Aid SA.52658(2018/FC) – Sweden, Alleged State aid to PostNord Logistics (OJ C 220, 3.7.2020).

(5)  Commission decision of 12 May 2020, cases SA.52489(2018/FC) – Denmark & State Aid SA.52658(2018/FC) – Sweden, Alleged State aid to PostNord Logistics (OJ C 220, 3.7.2020).

(6)  Published in June 2018.

(7)  Published in June 2019.

(8)  A company incorporated under Danish law and active, inter alia, on the Danish market for road transport of goods and parcel distribution services.

(9)  Judgment of 13 September 2023, ITD and Danske Fragtmænd v Commission, T-525/20, ECLI:EU:T:2023:542.

(10)  Regulation No 1/1958 determining the languages to be used by the European Economic Community (OJ 17, 6.10.1958, p. 385).

(11)  The legal basis for the merger in Denmark was provided by: Lov om ændring af lov om Post Danmark A/S, Act No 542 of 17 June 2008, available at: https://www.retsinformation.dk/Forms/R0710.aspx?id=120348, last consulted on 26 June 2024. See also Commission Decision of 21 April 2009, Case M.5152 – Posten AB/Post Danmark A/S, available at: https://competition-cases.ec.europa.eu/cases/M.5152.

(12)  The President and Group CEO are the same person from 2013 until 2018 (one person) and as of 2019, another person.

(*1)  Confidential information.

(13)  This follows from the “internal governance policy” of PostNord.

(14)  Judgment of 16 May 2002, France v Commission (“Stardust”), C-482/99, ECLI:EU:C:2002:294, paragraphs 54-55.

(15)  Judgment of 17 September 2014, Commerz Nederland v Havenbedrijf Rotterdam, C-242/13, ECLI:EU:C:2014:2224.

(16)  In the 2017 annual report of PNL (published in June 2018), it is stated that due to the financial difficulties of PNL, the management of PostNord Group has decided to provide “the necessary capital injections on market conditions in order to ensure the necessary liquidity resources in the coming financial year”.


(17)  Politiken, “Minister’s staff will be employed by the postal sector” [Ministers mand sættes ind i posten], 23 April 2017.

(18)  Berlingske, “Did Ole Birk Olesen speak untrue? Here is what we know about the meeting on PostNord’s destiny” [Talte Ole Birk Olesen usandt? Her er hvad vi ved om centralt skæbnemøde om PostNord], 9 March 2017.

(19)  See recital (12) and footnote 12.

(20)  Notably, the complainant refers to chronical financial losses in 2013, 2014 and 2016; a negative EBIT (earnings before interest and tax) as of 2013; and negative equity in 2013 and again in 2017.

(21)  These 12 elements ((recitals (76)-(100) of the 2020 Decision) were the following:






(i)


the capital injection was decided following a request from its beneficiary, PostNord Logistics, and was implemented by PostNord Group and not by PostNord AB;










(ii)


the approval of the capital injection by PostNord AB was necessary in view of its amount, but it did not appear that the Danish or Swedish States, or the civil servants that they appointed to the Board of Directors of PostNord AB, expressed any particular view in favour of that measure;










(iii)


the appointment of members of PostNord AB’s Board of Directors by the Danish and Swedish States was not in itself sufficient to conclude that the capital injection is imputable to those States since there was no indication that those civil servants do not act independently, they do not have more voting power than other Board members or a veto right and, moreover, the other members of PostNord AB’s Board of Directors do not work for the shareholder States and are therefore independent;










(iv)


the members of PostNord AB’s Board of Directors were not required to follow any particular instructions from the shareholder States and there was nothing to suggest that such instructions were given in relation to the capital injection;










(v)


a simple majority of PostNord AB’s Board of Directors was required to approve the capital injection, with the result that it was impossible for one of the two States to push through its will by itself;










(vi)


PostNord AB and its subsidiaries were not integrated into the Danish or Swedish public administration;










(vii)


the activities of PostNord AB and its subsidiaries were purely commercial, apart from those relating to Post Danmark’s universal postal service obligations, which were not however linked to the activities of PostNord Logistics;










(viii)


PostNord Group was a company governed by private law;










(ix)


PostNord Group, which was supervised by PostNord AB, and not by the Danish and Swedish States, was autonomous vis-à-vis those States;










(x)


PostNord Logistics was a relatively small company which was not politically, socially or economically important, such that its bankruptcy would not have had a significant impact justifying State intervention in order to avoid it;










(xi)


the amount of the capital injection was, admittedly, significant for PostNord Logistics, but not for PostNord Group having regard to its total revenues, and;










(xii)


the capital injection was rational from an economic point of view since the logistics market was growing.





(22)  Judgment in case T-525/20, paragraphs 39-41.

(23)  Judgment in case T-525/20, paragraphs 51-71.

(24)  Judgment in case T-525/20, paragraphs 86-96.

(25)  Judgment in case T-525/20, paragraphs 72-85.

(26)  Judgment in case T-525/20, paragraphs 97-106.

(27)  Judgment in case T-525/20, paragraphs 62-63.

(28)  Aktiebolagslag (2005:551) (Law on limited liability companies), available at: https://www.riksdagen.se/sv/dokument-och-lagar/dokument/svensk-forfattningssamling/aktiebolagslag-2005551_sfs-2005-551/.

(29)  In Sweden, the Minister for Finance is responsible for a uniform ownership policy for State-owned enterprises and is the Minister responsible for the vast majority of the State-owned enterprises. In 2017, the department of State-owned enterprises was formally organised under the Ministry of Enterprise and Innovation.

(30)  Aktiebolagslag (2005:551), available at: https://www.riksdagen.se/sv/dokument-och-lagar/dokument/svensk-forfattningssamling/aktiebolagslag-2005551_sfs-2005-551/.

(31)  Available at: https://www.government.se/contentassets/c6382135343d45fe8685ab7fa53a2fa3/the-states-ownership-policy-and-guidelines-for-state-owned-enterprises-2017.pdf.

(32)  The Swedish authorities submit that a director employed with the Government Offices can in his or her role as board director, apart from general expertise pertaining to board work, contribute knowledge of corporate governance matters and the State’s ownership policy.

(33)  The Swedish authorities submitted that for each State-owned company, an analysis of required expertise is performed on the basis of the company’s operations, situation and future challenges, board composition and completed board evaluations. The Government Offices’ involvement in the board nomination process also includes a separate and ongoing evaluation of the boards of all State-owned enterprises. Any recruitment requirement is then determined, and the recruitment process initiated (Swedish State’s Ownership Policy, Section 2.2.2). “the composition of the board must be appropriate, diverse and wide-ranging as regards the competences, experience and background of the directors elected by the general meeting. Aspects of diversity, including ethnic and cultural background, should also be considered in the composition of the boards”. Further, “to be considered for a directorship, the candidate must possess a high level of expertise relevant to the company’s business operations, business development, industry expertise, financial matters, sustainable business or other relevant areas. In addition, the candidate must have the time and commitment required for the assignment, as well as the utmost integrity and the ability to safeguard the best interests of the company. All directors must be capable of independently assessing the company’s operations”. (Swedish State’s Ownership Policy, Section 2.2.3). Further, “the Government seeks to achieve gender balance in individual company boards as well as at the portfolio level (Swedish State’s Ownership Policy, Section 4.3.1). When the nomination process is complete, the adopted proposal of nomination must be published on the company’s website and be included in the notice to attend the general meeting, in accordance with the rules set out in the Swedish Corporate Code.

(34)  Available at https://fm.dk/media/dp1dw3d0/statens-ejerskabspolitik.pdf, pp. 8 and 73-82.

(35)  According to the Danish authorities, the fact that 8 out of 11 board members are appointed by Denmark and Sweden (4 and 4) in the Board of PostNord AB would not alter this conclusion.

(36)  See the Danish State’s Ownership Policy from April 2015, p. 17.

(37)  See the Danish State’s Ownership Policy from April 2015, p. 28.

(38)  See the Danish State’s Ownership Policy from April 2015, p. 30.

(39)  See the Danish State’s Ownership Policy from April 2015, p. 43.

(40)  The Swedish authorities submit that it follows from the Swedish Ownership Policy (page 2) that “The state’s ownership policy must be applied in all companies where the state is a majority owner. In respect of other companies in which the state is a minority owner, the state engages in a dialogue with the other owners in an effort to ensure that the ownership policy is applied.” This is the case for PostNord AB, where the two owners have agreed that the respective ownership policies to the extent possible shall be applied by the company. The applicable Swedish State’s Ownership Policy at the time of the 2017 capital injection can be found at https://www.government.se/reports/2017/06/the-states-ownership-policy-and-guidelines-for-state-owned-enterprises-2017/.

(41)  A board member will be personally liable when in the performance of its duties, intentionally or negligently, causes damage to the company because of e.g. violation of the Swedish Companies Act or the articles of association. This also includes violations of any value transfers from the company including business transactions resulting in the company’s assets being reduced and which are not of a purely commercial nature for the company (Swedish Companies Act, Chapter 17, Section 1).

(42)  See page 14 in the Swedish Government’s Annual Report for State-owned Enterprises (yearly submitted to the Riksdag for approval). The (at the time) Swedish Ministry of Enterprise and Innovation has a specific organisation specialised in corporate governance and investment management to ensure long-term value creation in the portfolio of State-owned enterprises. The investment organisation consists of investment directors and of experts in company analysis, sustainable business, commercial law and board recruitment. The investment directors each serve on a number of company boards and lead the ongoing work of the organisation related to the holdings, which is organised in investment teams. The organisation is now a part of the Swedish Ministry of Finance.

(43)  Section 5, subsection 5.1 of the Swedish Corporate Governance Code, as of 1 January 2024, available at: https://www.bolagsstyrning.se/Userfiles/Koden/Dokument/Eng/SweCorpGovernanceCode_applicable_from_1_January_2024.pdf.

(44)  “3.2 Owner instructions. The owner instructs the company’s board of directors through owner instructions. In state-owned enterprises, owner instructions are primarily applied when a company has specifically adopted public policy assignments, receives government subsidies, is in the process of restructuring or in the event of deregulations or other material changes. The contents of owner instructions should be relevant, specific and clear and be formalised through a resolution by the general meeting. Where an assignment is conveyed through owner instructions, the instructions must clearly state how the assignment is financed, reported and monitored”. [emphasis added].

(45)  The Swedish authorities consider these limited number of cases related to issues that should be subject to “strategic review”, including for example, major strategic changes in the company's operations, major acquisitions, mergers, divestments or other decisions that significantly change the company's risk profile or balance sheet. The practice that has developed further entails that the Board of the company in question poses a question that can either be answered with a “yes or no”. The owner’s position has only taken business-related factors into account.

(46)  Annual report for State-owned enterprises 2017, p 15, which is yearly submitted to the Riksdag for approval, available at: https://www.government.se/contentassets/9c99e9a92e8e44fd9434e75dfd568961/annual-report-for-state-owned-enterprises-2017/.

(47)  Agreement between the Kingdom of Sweden and the Kingdom of Denmark regarding PostNord AB, (20 October 2017), to support a transformation plan of Post Danmark.

(48)  In Swedish “Arbetsordning för Styrelsen i PostNord AB”, which have been submitted by the Danish and Swedish authorities.

(49)  See judgment in case T-525/20, paragraphs 70-71.

(50)  The deadlock clause (point 3.11 of the Shareholders’ Agreement) is a structural safeguard intended for exceptional situations where the required majority decision cannot be reached. The Danish authorities submitted that it was not triggered, nor was there any indication that it needed to be. The qualified voting rule in point 3.9.1, referred to in point 3.11.1, were not relevant. The Board decision to grant the 2018 capital injection merely required a simple majority and was passed. The deadlock provisions in points 3.11.2 and 3.11.3 were therefore not triggered.

(51)  8 Chapter § 22.

(52)  See judgment in case T-525/20, paragraphs 82 and 84-85.

(53)  According to the Danish authorities, this is explicitly stated in Article 2 of the October Agreement, which refers to “[…] the Danish business in Post Danmark A/S […]”.

(54)  See judgment in case T-525/20, paragraphs 95-96.

(55)  Nevertheless, the economic analysis performed by PostNord Group’s Mergers and Acquisitions department on 3 December 2018 (see recital (16)) concluded that discontinuing PNL’s business – whether through a controlled shutdown, insolvency proceedings, or continued operations on a smaller scale – would be less attractive for PostNord Group than proceeding with a capital injection into it.

(56)  See judgment in case T-525/20, paragraph 106.

(57)  See judgment in case T-525/20, paragraphs 60-61.

(58)  Chapter 2, Section 8.

(59)  RÅ Ab-465/78. In addition, the Swedish authorities submitted that any information gained, or documentation received, solely in a civil servant’s capacity as a Board member of PostNord AB (or another State-owned company) is therefore under Swedish law not to be regarded as information or documentation received by a Swedish authority (i.e. the Government Offices of Sweden in this case). According to the Swedish case law, the information or documentation is not to be regarded as received by the Swedish authority in such situations regardless of whether the official is holding its employment with the Swedish authority in parallel with the other position as Board member, and even if the Board member’s information or documentation is kept within the premises of the authority.

(60)  See judgment in case T-525/20, paragraph 54.

(61)  See judgment in case T-525/20, paragraph 60.

(62)  See judgment in case T-525/20, paragraph 63.

(63)  See judgment in case T-525/20, paragraphs 60 and 89.

(64)  In the 2017 annual report of PNL (published in June 2018), it is stated that due to the financial difficulties of PNL, the management of PostNord Group has decided to provide “the necessary capital injections on market conditions in order to ensure the necessary liquidity resources in the coming financial year”.

(65)  Judgment of 25 January 2018, Brussels South Charleroi Airport (BSCA) v Commission, T-818/14, ECLI:EU:T:2018:33, paragraphs 66-70, 72 and 77.

(66)  Judgment of 25 January 2018, Brussels South Charleroi Airport (BSCA) v Commission, T-818/14, ECLI:EU:T:2018:33, paragraph 77.

(67)  Judgment of 12 December 1996, Air France v Commission, T-358/94, ECLI:EU:T:1996:194, paragraph 56.

(68)  Judgment of 16 May 2002, France v Commission, C-482/99, ECLI:EU:C:2002:294, paragraph 38. See also judgment of 29 April 2004, Greece v Commission, C-278/00, ECLI:EU:C:2004:239, paragraphs 53 and 54, and judgment of 8 May 2003, Italy and SIM 2 Multimedia v Commission, C-328/99 and C-399/00, ECLI:EU:C:2003:252, paragraphs 33 and 34.

(69)  Judgment of 9 November 2017, European Commission v TV2/Danmark A/S, C-656/15, ECLI:EU:C:2017:836, paragraph 47.

(70)  Judgment of 12 December 1996, Air France v Commission, T-358/94, ECLI:EU:T:1996:194, paragraphs 58 to 62.

(71)  Judgment of 16 May 2002, France v Commission, C-482/99, ECLI:EU:C:2002:294, paragraph 52.

(72)  Judgment of 5 May 2021, ITD and Danske Fragtmænd v Commission, T-561/18, ECLI:EU:T:2021:240, upheld by judgment of 10 November 2022, ITD and Danske Fragtmænd v Commission, C-442/21 P, ECLI:EU:C:2022:872. Those judgments concern, inter alia, a capital injection granted in 2017 from PostNord Group into Post Danmark A/S that, similarly to the 2018 capital injection, had been approved also by the Board of PostNord AB because its amount was exceeding SEK […] million (approximately EUR […] million).

(73)  See judgment in case T-561/18, paragraphs 333-334.

(74)  Judgment in case T-561/18, paragraph 332 and case-law cited.

(75)  See judgment in case T-525/20, paragraph 60.

(76)  See judgment in case T-525/20, paragraph 64.

(77)  According to the Danish and Swedish authorities, none of the directors has a veto right and the two civil servants have no special role or different voting power compared to other Board members.

(78)  Judgment in case T-525/20, paragraph 95.

(79)  Judgment in case T-525/20, paragraph 104.

(80)  Judgment of 11 July 1996, SFEI and others, C-39/94, ECLI:EU:C:1996:285, paragraphs 60-61.

(81)  Judgment of 5 June 2012, Commission v EDF, C-124/10 P , ECLI:EU:C:2012:318, paragraphs 83-85 and 105; judgment of 16 May 2002, France v Commission, C-482/99, ECLI:EU:C:2002:294, paragraphs 71-72; judgment of 30 April 1998, Cityflyer Express v Commission, T-16/96, ECLI:EU:T:1998:78, paragraph 76.

(82)  The Danish authorities submitted that PNL experienced losses of approximately DKK [10-30] million related to the loss of […] customers: […] and […]. PNL has estimated that the turnover for these […] customers was approximately [0-25 %] of the net turnover for both 2017 and 2018.

(83)  Judgment of 4 June 2015, Commission v MOL, C-15/14 P, ECLI:EU:C:2015:362, paragraph 60; judgment of 30 June 2016, Belgium v Commission, C-270/15 P, ECLI:EU:C:2016:489, paragraph 49; and judgment of 13 December 2017, Greece v Commission, T-314/15, ECLI:EU:T:2017:903, paragraph 79.

(84)  Judgment of 28 April 1993, Italy v Commission, C-364/90, ECLI:EU:C:1993:157, paragraph 20.

(85)  Judgment of 12 July 1973, Commission v Germany, C-70/72, ECLI:EU:C:1973:87, paragraph 13.

(86)  Judgment of 14 September 1994, Spain v Commission, Joined Cases C-278/92, C-279/92 and C-280/92, ECLI:EU:C:1994:325, paragraph 75.

(87)  Judgment of 17 June 1999, Belgium v Commission, C-75/97, ECLI:EU:C:1999:311, paragraphs 64 and 65.

(88)  Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union.

(89)  Judgment of 28 March 2012, Ryanair Ltd v European Commission; T-123/09, paragraph 155.



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