CELEX: 62001TJ0157
Language: en
Date: 2004-03-16 00:00:00
Title: Judgment of the Court of First Instance (Second Chamber) of 16 March 2004. # Danske Busvognmænd v Commission of the European Communities. # State aid - Regional public transport by bus. # Case T-157/01.

Case T-157/01
      Danske Busvognmænd
      v
      Commission of the European Communities
      (State aid – Regional public transport by bus)
      Judgment of the Court of First Instance (Second Chamber, Extended Composition), 16 March 2004 
      Summary of the Judgment
      1.     Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Commission decision
            adopted without opening of the formal assessment procedure provided for in Article 88(2) EC – Standing of a trade association
            which criticised possible State aid to bring proceedings – Admissibility
      (Arts 88(2) EC and 230, second para., EC)
      2.     Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Action admissible –
            Right to plead all the grounds of illegality listed in Article 230 EC
      (Art. 230, second para., EC)
      3.     Procedure – Application initiating proceedings – Formal requirements – Statement of the subject-matter of the proceedings
            – Summary of the pleas in law relied upon
      (Statute of the Court of Justice, Arts 21, first para., and 53, first para.; Rules of Procedure of the Court of First Instance,
            Art. 44(1)(c))
      4.     State aid – Meaning – Payment of compensation to employees of an undertaking for giving up their status as officials – Not
            included 
      (Art. 87(1) EC)
      5.     Transport – Aid for transport – Distinction between the concepts of ‘obligations inherent in the concept of a public service’
            and ‘public service contracts’ – Transport contracts voluntarily concluded following invitations to tender
      (Council Regulation No 1191/69, Arts 1, 2 and 14)
      6.     Transport – Action by the Member States concerning public service obligations – Regulation No 1191/69 – Article 87(1) EC not
            applicable – Limits – Aid directly and exclusively necessary for the performance of a public transport service
      (Arts 87(1) EC and 88(3) EC; Council Regulation No 1191/69, Art. 17(2))
      7.     Transport – Aid for transport – Application of Article 73 EC – Limitation to cases covered by secondary Community legislation
      (Art. 73 EC; Council Regulations Nos 1191/69 and 1107/70)
      1.     If, following a complaint lodged by a trade association about State aid, the Commission adopted a decision following a preliminary
         assessment, that is, without opening the formal assessment procedure provided for in Article 88(2) EC, that association, in
         its capacity as complainant which, in addition, influenced the course of the administrative procedure before the Commission
         and at least some of whose members were in competition with the undertaking which benefited from the disputed aids, enjoys
         the procedural guarantees provided for by Article 88(2) EC. Moreover, compliance with those guarantees can be secured only
         if it is given the opportunity to challenge the contested decision before the Community Courts under the fourth paragraph
         of Article 230 EC.
      
      (see paras 39-40)
      2.     In an action for annulment which serves its interests and those of its members, a trade association is entitled to plead any
         of the grounds of illegality listed in the second paragraph of Article 230 EC, provided they concern the total or partial
         annulment of the contested decision, without being limited to relying on infringement of the procedural rights provided for
         in Article 88(2) EC.
      
      (see para. 41)
      3.     Under the first paragraph of Article 21 of the Statute of the Court of Justice, which is applicable to the Court of First
         Instance by virtue of the first paragraph of Article 53 of that Statute, as well as under Article 44(1)(c) of the Rules of
         Procedure of the Court of First Instance, all applications initiating proceedings are to state the subject-matter of the proceedings
         and to include a summary of the pleas raised. That statement must be sufficiently clear and precise to enable the defendant
         to prepare its defence and the Court to rule on the application, if necessary without any further information. In order to
         guarantee legal certainty and the sound administration of justice it is necessary, in order for a plea to be admissible, that
         the essential matters of law and fact relied on are stated, at least in summary form, coherently and intelligibly in the application
         itself.
      
      (see para. 45)
      4.     Article 87(1) EC is aimed merely at prohibiting advantages for certain undertakings and the concept of aid covers only measures
         which lighten the burdens normally assumed in an undertaking’s budget and which are to be regarded as an economic advantage
         which the recipient undertaking would not have obtained under normal market conditions. Thus, the payment by a Member State
         of an amount of money to employees of a bus transport undertaking in order to finance their giving up their status as officials
         and accept being employed on a contract basis is not State aid within the meaning of Article 87(1) EC when  the measure in
         question was introduced to replace the privileged and costly status of those officials with the status of employees on a contract
         basis comparable to that of employees of other bus transport undertakings competing with that undertaking. Such a measure,
         which could have also taken the form of a reassignment of the parties concerned within the public administration, is not aimed
         at conferring an advantage on the undertaking but rather at freeing it from the structural disadvantage burdening it compared
         to its private-sector competitors.
      
      (see para. 57)
      5.     The wording of Article 1 of Regulation No 1191/69 on action by Member States concerning the obligations inherent in the concept
         of a public service in transport by rail, road and inland waterway, as amended by Regulation No 1893/91, introduces a clear
         distinction between the ‘obligations inherent in the concept of a public service’ which the competent authorities are to terminate
         (Article 1(3)) and ‘transport services’ which those authorities are authorised to ensure through ‘public service contracts’
         (Article 1(4)), stating that those authorities may ‘however, … maintain or impose the public service obligations referred
         to in Article 2’ (Article 1(5)). Only in this latter case may the common compensation procedures provided for inter alia in
         Section IV of Regulation No 1191/69, that is, Articles 10 to 13, be applied. 
      
      Article 14 of Regulation No 1191/69 defines a ‘public service contract’ as a contract concluded in order to provide the public
         with adequate transport services, and which is to provide for, in addition to its duration, all of the transport service details,
         including ‘the price of the services … , which shall either be added to tariff revenue or shall include the revenue, and details
         of financial relations between the two parties’ (Article 14(1) and (2)(b)). This purely contractual system does not provide
         either for compensation for achievement of an imposed objective or for a public service obligation within the meaning of Article
         2 of that regulation.
      
      Article 14(4) to (6) of Regulation No 1191/69 provides in this respect that if an undertaking intends to discontinue a transport
         service which is not covered by the contract system ‘or’ the public service obligation, the competent authorities may insist
         on the maintenance of the service concerned, in which case expenditure arising from that obligation ‘shall be compensated
         in accordance with the common procedures laid down in Sections II, III and IV’. It necessarily follows that the contractual
         relationships established following a tendering procedure between the transport undertaking and the competent authority include,
         by virtue of Article 14(1) and (2) of the aforementioned regulation, a specific financing scheme which leaves no room for
         compensation according to the methods laid down in Sections II, III and IV of that regulation.
      
      Consequently, a bus transport undertaking whose obligations to operate, to carry and to collect the tariffs fixed were not
         imposed unilaterally, who was not obliged to operate its transport services in an unprofitable manner, contrary to its commercial
         interests, but who, on the contrary, voluntarily assumed those obligations once it had been successful in the tendering procedures,
         which did not provide for any State subsidies and in which it was free to participate or not, depending on its economic interests,
         and whose transport services were paid for by the price proposed by it in its bids in the tendering procedures and included
         in the contracts subsequently concluded, does not perform public service obligations within the meaning of Article 2(1) of
         Regulation No 1191/69; accordingly, such an undertaking does not receive ‘compensation’ within the meaning of that article,
         but rather financial remuneration provided for in those transport contracts.
      
      (see paras 77-82)
      6.     Regulation No 1191/69 on action by Member States concerning the obligations inherent in the concept of a public service in
         transport by rail, road and inland waterway, as amended by Regulation No 1893/91, authorises the competent national authorities
         to adopt, in the field of road transport, all the measures covered by that regulation, including financing measures necessary
         to that end. Moreover, Article 17(2) thereof even exempts them from the prior notification procedure provided for by Article
         88(3) EC. That regulation thus introduces a sectoral derogation from the prohibition on State aid, the principle of which
         is laid down in Article 87(1) EC, and leaves the Commission no margin of discretion regarding the authorisation of aids covered
         by that derogation. It follows that that regulation establishes a particularly favourable authorisation scheme, one which
         thus calls for a narrow interpretation.
      
      That scheme must therefore be limited to those aids which are directly and exclusively necessary for the performance of the
         public transport service per se, and do not include subsidies intended to cover deficits incurred by the undertaking which
         benefited from the aids as a result of circumstances other than its task of providing transport, such as the consequences
         of unsound financial management which is not an inherent factor in the transport sector. The public financing of those deficits
         which are not specifically sectoral in nature can be authorised only pursuant to the general provisions found in Article 87(2)
         and (3) EC.
      
      (see paras 85-86)
      7.     Following the adoption of Regulation No 1107/70 on the granting of aids for transport by rail, road and inland waterway, Member
         States may no longer rely directly on Article 73 EC, which provides that aids which meet coordination needs in the transport
         sector or are reimbursement for the discharge of certain obligations inherent in the concept of a public service are compatible
         with the Treaty, in cases other than those covered by secondary Community legislation.
      
      Thus, in situations where Regulation No 1191/69 on action by Member States concerning the obligations inherent in the concept
         of a public service in transport by rail, road and inland waterway, as amended by Regulation No 1893/91, is not applicable
         and the subsidies in question come within the scope of Article 87(1) EC, Regulation No 1107/70 lists exhaustively the circumstances
         in which the authorities of the Member States may grant aids under Article 73 EC.
      
      (see para. 100)

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber, Extended Composition)16 March 2004(1)
         
         
               (State aid  –  Regional public transport by bus)
               
             In Case T-157/01, 
            
            
            Danske Busvognmænd, established in Frederiksberg (Denmark), represented by P. Dalskov and N. Symes, lawyers,
            
            
            applicant, 
            
            v
            Commission of the European Communities, represented by H. Støvlbaek and D. Triantafyllou, acting as Agents, with an address for service in Luxembourg,
            
            defendant,  supported byKingdom of Denmark, represented by J. Molde, acting as Agent, assisted by P. Biering and K. Hansen, lawyers, with an address for service in Luxembourg,
            
             APPLICATION for annulment of Commission decision SG(2001) D/287297 of 28 March 2001 (aid NN 127/2000) declaring aid granted
            by the Danish authorities to Combus A/S in the form of capital injections as part of the privatisation of that company to
            be compatible with the common market,
            
            
            THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Second Chamber, Extended Composition),
            
             composed of: N.J. Forwood, President, J. Pirrung, P. Mengozzi, A.W.H. Meij and M. Vilaras, Judges, 
            
             Registrar: D. Christensen, Administrator, 
            
            
            
         gives the following
         
         
         Judgment
            
               Facts and procedure
            Background to the dispute
         
         1
            
          The Danish market in public transport by bus is divided into two sectors: the capital region and the rest of the country.
         
         
         
         2
            
          As regards the operation of buses in the capital region, the county councils and the municipalities of Copenhagen and Frederiksberg,
         represented on the Capital Development Council, have the task of planning routes, traffic volumes, the bus network, timetabling,
         bus stations, types of vehicles and fares and ensuring the provision of public transport through invitations to tender.
         
         
         
         3
            
          As regards operation of buses outside the capital region, the equivalent tasks are taken care of by the various county or
         municipal councils in each county. In some cases those councils have set up county or inter-municipal transport undertakings,
         whose task is to ensure bus transport in accordance with the plans drawn up. Those transport undertakings function as ‘management
         companies’, which then delegate the task of operating bus transport to private and public undertakings, following invitations
         to tender. Those undertakings are required to operate transport in accordance with the route network, timetable and fares
         set by the county.
         
         
         
         4
            
          The rules governing invitations to tender require that the contract be awarded to ‘the most economically advantageous tender’,
         regardless of whether the tenderer is from the private or public sector. The income from the operation of the transport does
         not accrue to the transport undertakings, but rather to the counties, who then remunerate the undertakings in the form of
         a gross amount per hour of transport and per bus in traffic, plus an additional amount. The amount of that remuneration is
         determined by the invitation to tender.
         
         
         
         5
            
          In practice, the fares paid by the passengers do not cover all of the costs. In 2000, the income from bus ticket sales covered
         53% of all costs.
         
         
         
         6
            
          Public transport by bus was originally provided in Denmark inter alia by De Danske Statsbaner (Danish State Railways, ‘DSB’).
         Under legislation introduced in 1995, those activities were transferred to DSB Busser A/S, an independent undertaking which
         was still State-owned, however. Under 1996 legislation, the undertaking changed its name to Combus A/S (‘Combus’). That undertaking
         was established with a view to managing transport operations on a commercial basis and operating in the market in conditions
         of competition comparable to those of private bus companies.
         
         
         
         7
            
          When Combus was created, close to 1 600 people were employed in bus transport, including approximately 750 on a contract basis
         and 845 officials. Those officials maintained their employment relationship with the State and while being made available
         to Combus through a newly introduced secondment scheme. Since the officials were working for Combus, Combus had to compensate
         the State for the remuneration and pensions paid by the latter to them. In addition, the officials enjoyed specific protection
         in the event of loss of employment, in the form of entitlement to paid leave of absence for three years, unless it was possible
         for the employer to find them another, adequate State post.
         
         
         
         8
            
          In 1995, the new company’s opening accounts showed a provision of DKK 140 million paid by the Danish State to cover the additional
         expenditure due to pensions and paid leave of absence for seconded officials.
         
         
         
         9
            
          Legislation introduced in 1998 allowed the State to dispose of all of the shares in Combus with a view to privatisation. The
         State was also authorised to incur expenditure for a one-off payment to the some 550 officials who were employed by Combus
         on 1 October 1998 and who agreed to give up their status as officials and become employed on a contract basis by that undertaking.
         It was more costly to employ officials than employees on a contract basis.
         
         
         
         10
            
          For that reason, in September 1998 the State concluded an agreement with the rail union Dansk Jernbaneforbund governing the
         conditions of the change of status from official to employee under contract for the officials working for Combus. That agreement
         consisted essentially of giving State employees the choice, as of 1 April 1999, between working on a contract basis for Combus
         or transferring to another suitable post within DSB. In return for their waiving their rights derived from their status as
         officials upon transfer to employment on a contract basis for Combus, the officials concerned demanded a single payment. The
         total expenditure for that single payment was assessed at DKK 100 million. That amount was paid to the officials concerned
         in 1998.
         
         
         
         11
            
          Subsequently, in view of Combus’s critical financial situation, the State decided, on 21 May 1999, to increase the company’s
         capital by DKK 300 million.
         
         
         
         12
            
          In that context, the applicant, a trade association representing more than 90% of the regional public bus transport undertakings
         in Denmark, turned to the Commission, writing a letter of 25 June 1999 and lodging a complaint of 11 November 1999, criticising
         two State aids granted to Combus and a possibly forthcoming third aid. It referred inter alia to the DKK 140 million provision
         set aside when Combus was created, and to the DKK 100 million paid in 1998, both allegedly intended to facilitate the transition
         from employment as a State employee to employment under contract, whereas there was no guarantee that those amounts would
         not actually be used simply to cover Combus’s operating expenses. It also criticised the payment of DKK 300 million on 31
         May 1999.
         
         
         
         13
            
          In November 2000, Combus was privatised through the transfer of its shares to Arriva Danmark A/S (‘Arriva’), a company which
         is part of a British group listed on the London Stock Exchange. By letter of 30 November 2000, the Danish authorities informed
         the Commission of their intention to grant new aid in the amount of DKK 171.8 million to Combus as part of the transfer to
         Arriva.
         
         
         
         14
            
          The Danish State had chosen Arriva by tender from among several interested undertakings, having found that Arriva’s tender
         was the best from an economic standpoint. 
         
         
         
         15
            
          By decision of 28 March 2001, the Commission, following a preliminary assessment, decided not to raise objections either to
         the aid granted by way of compensation for Combus’s future losses for the period 2001-2006 or to the aid granted by way of
         compensation for its earlier losses (‘the contested decision’).
         
         The contested decision
         
         16
            
          In the contested decision, the Commission describes, first, the public bus transport market in Denmark, the liberalisation
         of which began in the 1990s and which is characterised by the presence of a few large operators and numerous small local operators.
         Combus is the only undertaking to operate throughout Denmark and had a market share of 33% in 2000.
         
         
         
         17
            
          In regard to Combus’s situation, the Commission states that most of its drivers had previously had the status of officials,
         which meant higher costs for Combus than if it had employed drivers on a contract basis.  Combus’s drivers were thus asked
         to opt for employment on a contract basis. Those who accepted the new terms were given a bonus by DSB.
         
         
         
         18
            
          Combus’s financial situation deteriorated considerably starting in 1995, as the contracts it had won in 1997 turned out to
         be heavy loss generators. This led the State to inject DKK 300 million of capital in order to enable Combus to continue operating,
         whilst at the same time accelerating its transfer. A market study was conducted which led to several potential purchasers
         being identified. In November 2000 the Danish Minister for Transport signed the contract to transfer Combus to Arriva, whose
         tender had been found to be the most financially attractive.
         
         
         
         19
            
          In its legal assessment, the Commission finds that all of the DKK 300 million paid to Combus in 1999 must be regarded as State
         aid because it does not satisfy the criterion of the private investor operating in the normal conditions of a market economy.
         The same holds true for the additional injection of DKK 171.8 million granted to Combus when it was transferred to Arriva.
         
         
         
         20
            
          According to the Commission, the current net value of that aid, adjusted at an updating rate of 6%, amounts to DKK [Z] 
            			(2)
            		: DKK [X] could be considered to be aid for the purposes of Article 73 EC, whilst DKK [Y] could be likened to State aid which
         falls to be assessed under Regulation (EEC) No 1191/69 of the Council of 26 June 1969 on action by Member States concerning
         the obligations inherent in the concept of a public service in transport by rail, road and inland waterway (OJ, English Special
         Edition 1969 (I), p. 276), as amended by Council Regulation (EEC) No 1893/91 of 20 June 1991 (OJ 1991 L 169, p. 1) (hereinafter
         ‘Regulation No 1191/69’).
         
         
         
         21
            
          As regards the DKK [Y] intended to cover future losses attributable to transport contracts concluded by Combus, the Commission
         states that, under the normal Danish compensation scheme, local authorities conclude contracts with bus transport undertakings,
         following invitations to tender, with a view to operating certain routes. The local authorities pay the amount agreed to the
         transport undertakings, set fares and receive the income from ticket sales.
         
         
         
         22
            
          The Commission considers that this manner of operating is in accordance with Regulation No 1191/69 provided the tender procedure
         takes account of the tariff obligation, the obligation to operate and the obligation to carry. The DKK [Y] are intended to
         be used during the period 2001 to 2006 to cover forecasted losses arising from the contracts taken over by Arriva from Combus.
         That amount is in reality an adjustment of the normal compensation which the Danish authorities are bound to pay. The Commission
         concludes that that part of the aid is compatible with the EC Treaty.
         
         
         
         23
            
          Regarding the DKK [X], the Commission considers whether Article 87(3)(c) EC and the Community Guidelines on State aid for
         rescuing and restructuring firms in difficulty (OJ 1999 C 288, p. 2, ‘the Guidelines’) may apply, since the activities at
         issue here consist of operating the transport routes served by Combus until the end of the transport contracts so as to avoid
         disruptions in local public transport. The Commission finds that all of the conditions for restructuring aid are satisfied,
         except for one: Combus’s viability does not, strictly speaking, meet the Guidelines’ requirements because it is partly dependent
         on other forms of State aid. According to the Commission, this fact may make the analysis hypothetical as regards the restructuring
         aid.
         
         
         
         24
            
          If there can be any doubt, the Commission is of the view that, given the exceptional circumstances of this case, this part
         of the aid may be appraised directly having regard to Article 73 EC. The Commission states that the aid in question does enable
         Combus’s contractual obligations to the competent authorities to be fulfilled and therefore represents reimbursement for the
         discharge of certain obligations inherent in the concept of a public service within the meaning of Article 73 EC.
         
         
         
         25
            
          Applying Article 86(2) EC by analogy, the Commission confirms that that part of the aid does not affect the development of
         trade to such an extent as would be contrary to the interests of the Community. It takes the view that, in this case, the
         development of trade will probably not be affected significantly, since Arriva’s contracts are of limited duration and the
         competent authorities will launch fresh invitation to tender procedures once they expire.
         
         
         
         26
            
          The Commission states, by way of conclusion, first, that the payment of DKK [Y] is in keeping with Regulation No 1191/69 and,
         second, that the payment of DKK [X] may be regarded as restructuring aid which is compatible with Article 87(3)(c) EC, or
         at least with Article 73 EC, which is of direct application. Accordingly, the Commission declares the aid in the amount of
         DKK [Z] to be compatible with the EC Treaty.
         
         
         
         27
            
          The contested decision was published in the Official Journal of the European Communities of 5 May 2001 (OJ 2001 C 133, p. 21) by means of a reference to the Commission’s internet site.
         
         
         
         28
            
          By letter of 8 May 2001, the Commission informed the applicant that, following its complaint, the Danish authorities had notified
         the Commission of the capital injections which were the subject of the contested decision. A copy of the contested decision
         was attached to that letter, which was received by the applicant on 15 May 2001.
         
         Procedure
         
         29
            
          By application lodged on 11 July 2001 at the Registry of the Court of First Instance, the applicant brought the present action.
         
         
         
         30
            
          By order of 9 January 2002, the President of the Second Chamber (Extended Composition) of the Court of First Instance granted
         the Kingdom of Denmark leave to intervene in support of the form of order sought by the Commission.  
         
         
         
         31
            
          On 27 March 2002, the Kingdom of Denmark submitted its statement in intervention.
         
         
         
         32
            
          Upon hearing the report of the Judge-Rapporteur, the Court of First Instance (Second Chamber, Extended Composition) requested
         the Commission and the Kingdom of Denmark to lodge certain documents. The documents were produced within the prescribed period.
         
         
         
         33
            
          By a pleading of 24 February 2003, the applicant lodged observations on the Kingdom of Denmark’s statement in intervention
         and on the documents produced.
         
         
         
         34
            
          Upon hearing the report of the Judge-Rapporteur, the Court of First Instance (Second Chamber, Extended Composition) decided
         to open the oral procedure and to put certain questions to the parties. The parties provided their answers within the prescribed
         period. On that occasion, the Commission and the Kingdom of Denmark expressed their views on the applicant’s observations
         of 24 February 2003.
         
         
         
         35
            
          The parties presented oral argument and answered questions put to them by the Court at the hearing on 21 October 2003.
         
         Forms of order sought
         
         36
            
          The applicant claims that the Court should:
         
         
         
          
         –
            principally, annul the contested decision;
         
         
         
         
          
         –
            in the alternative, annul the contested decision in so far as it authorises the part of the State aid paid to Combus on 31
               May 1999;
            
         
         
         
         
          
         –
            order the Commission to pay the costs.
         
         
         
         
         
         37
            
          The Commission contends that the Court should:
         
         
         
          
         –
            dismiss the action as unfounded;
         
         
         
         
          
         –
            order the applicant to pay the costs.
         
         
         
         
         
         38
            
          The Kingdom of Denmark supports the form of order sought by the Commission.
         
         Admissibility and scope of the action
         
         39
            
          The Commission questions the applicant’s standing to bring proceedings. On this point, it suffices to observe that on 25 June
         and 11 November 1999 the applicant, as a trade association representing the interests of the majority of Danish bus companies,
         complained to the Commission about the State aid at issue in the present proceedings, pursuant to Article 2(1) of its statutes,
         which entrusts it with the defence of its members’ national and international interests. By letter of 8 May 2001, the Commission
         replied: ‘As a result of your complaint … the capital injections made in 1999 were notified as a State aid’. A copy of the
         contested decision was attached to that letter. In addition, the contested decision was adopted by the Commission following
         a preliminary assessment, that is, without opening the formal assessment procedure provided for in Article 88(2) EC.
         
         
         
         40
            
          Accordingly, the applicant, in its capacity as complainant which, in addition, influenced the course of the administrative
         procedure before the Commission and at least some of whose members were in competition with the undertaking which benefited
         from the disputed aids, enjoys the procedural guarantees provided for by Article 88(2) EC. Moreover, compliance with those
         guarantees can be secured only if the applicant is given the opportunity to challenge the contested decision before the Community
         Courts under the fourth paragraph of Article 230 EC (see Case C-367/95 P Commission v Sytraval and Brink’s France [1998] ECR I-1719, paragraphs 40, 41 and 47, and the case-law cited therein). Accordingly, the present action must be declared
         to be admissible.
         
         
         
         41
            
          As regards the scope of the present action, the Court does not accept the line of argument put forward by the Danish Government
         at the hearing, to the effect that the Court’s powers of review should be confined to the issue of whether the Commission
         should have opened the formal assessment provided for in Article 88(2) EC. Although it is true that the applicant criticises
         the Commission for not having opened that procedure, it puts forward additional pleas in law based inter alia on infringement
         of other principles and provisions of Community law. Since the present action serves the interests of the applicant and those
         of its members who were competitors of Combus, the applicant is entitled to plead any of the grounds of illegality listed
         in the second paragraph of Article 230 EC, provided they concern the total or partial annulment of the contested decision
         (see, to that effect, although under appeal, Case T-114/00 Aktionsgemeinschaft Recht und Eigentum v Commission [2002] ECR II-5121, paragraph 78), without being limited to relying on infringement of the procedural rights provided for
         in Article 88(2) EC.
         
         
         
         42
            
          It follows that the Court is not, in principle, confined in its appraisal of the pleas in law put forward by the applicant
         in the present action. 
         
         Substance
         
         43
            
          In support of its claim for annulment, the applicant puts forward 10 pleas in law, directed against either the authorisation
         of some of the financial measures complained of or against the contested decision in its entirety. In the circumstances of
         the present case, it is appropriate to examine the various financial measures undertaken by the Danish authorities in chronological
         order, as authorised in the contested decision.
         
         Aid in the amount of DKK 140 million to cover special expenditure associated with the status of official of Combus employees
         
         44
            
          It should be borne in mind that the applicant, in its letter of 25 June 1999 and in its complaint of 11 November 1999, criticised
         the DKK 140 million provision in Combus’s opening accounts as likely to constitute unlawful State aid. Accordingly, the Commission
         was, in principle, required to conduct a diligent and impartial examination of the complaints raised by the applicant and,
         if it found that no State aid existed, it had to provide the applicant with an explanation of the reasons for which the facts
         and points of law put forward failed to demonstrate the existence of State aid, although it was not required to define its
         position on matters which were manifestly irrelevant or insignificant or plainly of secondary importance (Commission v Sytraval and Brink’s France, cited above, paragraphs 62 and 64). It is, however, common ground that neither the contested decision nor the covering letter
         of 8 May 2001 defines any position on the legal nature of the DKK 140 million provision.
         
         
         
         45
            
          It is appropriate, however, to consider whether the complaint concerning the DKK 140 million provision was validly raised
         in the application itself. Under the first paragraph of Article 21 of the Statute of the Court of Justice, which is applicable
         to the Court of First Instance by virtue of the first paragraph of Article 53 of that Statute, as well as under Article 44(1)(c)
         of the Rules of Procedure of the Court of First Instance, all applications initiating proceedings are to state the subject-matter
         of the proceedings and to include a summary of the pleas raised. That statement must be sufficiently clear and precise to
         enable the defendant to prepare its defence and the Court to rule on the application, if necessary without any further information.
         In order to guarantee legal certainty and the sound administration of justice it is necessary, in order for a plea to be admissible,
         that the essential matters of law and fact relied on are stated, at least in summary form, coherently and intelligibly in
         the application itself (see Case T-110/98 RJB Mining v Commission [2000] ECR II-2971, paragraph 23, and the case-law cited therein; Case T-195/00 Travelex Global and Financial Services and Interpayment Services v Commission [2003] ECR II-0000, paragraph 26).
         
         
         
         46
            
          An examination of the application reveals that the DKK 140 million provision is mentioned only once, not in the form of a
         plea but merely by way of narrative. There is only a statement that, when Combus was created, a provision was made in the
         opening accounts to cover at least part of the special costs being borne by Combus because it had to continue employing officials.
         The issue of Combus’s former officials was discussed only from the point of view of the DKK 100 million compensation package,
         with the applicant merely criticising the Commission for not having examined that aid and for having limited its analysis
         to the aids of DKK 300 million and DKK 171.8 million.
         
         
         
         47
            
          It thus emerges that the application does not contain any plea specifically directed against the provision of DKK 140 million.
         In order for a plea in law to be declared admissible, it is not sufficient that documents attached to the application refer
         to it. According to the case-law referred to above, the plea must be clear from the application itself.
         
         
         
         48
            
          The detailed line of argument which was first developed in the reply concerning several tranches of the DKK 140 million might
         nevertheless be admissible if it could be regarded as amplifying a plea previously put forward, directly or by implication,
         in the application initiating proceedings, and was closely connected with that plea (RJB Mining v Commission, cited above, paragraph 24, and the case-law cited therein), that is, in this case, with the plea concerning the DKK 100
         million compensation to cover the waiving of the status of official by Combus employees. However, the DKK 100 million, as
         criticised in the application, was not closely connected with the DKK 140 million provision. In fact, there are fundamental
         differences between those two financial measures effected by the Danish State.
         
         
         
         49
            
          It is clear that the DKK 140 million provision was in Combus’s opening accounts of 1 January 1995 and was there to cover the
         financial expenditure resulting from the secondment of 845 officials to Combus who maintained their working relationship with
         the State whilst at the same time being available to Combus. Since those officials were working for Combus, Combus was obliged
         to compensate the State for the remuneration and pensions the latter was paying to them. By contrast, the DKK 100 million
         compensation was paid out in 1998, directly to the officials concerned and not to Combus, and was paid out to compensate for
         the financial disadvantages for those employees who wished to give up their status as officials and go over to being employed
         on a contract basis.
         
         
         
         50
            
          It follows that the plea, raised in the reply, against the DKK 140 million provision must be described as a new plea within
         the meaning of the first subparagraph of Article 48(2) of the Rules of Procedure. Since this plea is not based on matters
         of fact or law which have come to light in the course of the procedure following measures of organisation of procedure decided
         on by the Court, it must be declared inadmissible.
         
         
         
         51
            
          Accordingly, the contested decision cannot be annulled in the present proceedings on the grounds that the Commission failed
         to examine the DKK 140 million provision made in favour of Combus. The form of order seeking annulment of the contested decision
         must, therefore, be dismissed in so far as it concerns that provision.
         
         Aid in the amount of DKK 100 million to finance Combus employees’ waiving their status of official in order to transfer to
               employment on a contract basis 
         
         52
            
          In its application, the applicant maintains that the Commission erred by failing to examine, in the contested decision, the
         payment of DKK 100 million to Combus in order to finance its employees’ giving up their status as officials in order to transfer
         to employment on a contract basis and by not finding that that change of status involved an element of State aid. According
         to the applicant, the advantage thereby conferred on Combus should have been assessed as being worth DKK 10 to 15 million
         per year.
         
         
         
         53
            
          In its reply, the applicant adds that Combus’s having to assume upon its creation certain obligations towards the officials
         made available to it by the State was compensated for by the payment of the abovementioned DKK 140 million provision. Following
         the DKK 100 million payment, Combus was released from the obligations for which it had received consideration. Combus thus
         made irregular use of DKK 21.3 million of the DKK 140 million, by using it for purposes other than those intended. With the
         DKK 100 million package granted by the Danish State, Combus benefited from indirect aid worth at least DKK 12.7 million.
         
         
         
         54
            
          It should be borne in mind that the applicant, in its letter of 25 June 1999 and in its complaint of 11 November 1999, had
         requested the Commission to examine the compatibility of the DKK 100 million payment with Article 87 EC. Accordingly, the
         Commission was, in principle, required to conduct a diligent and impartial examination of that request and, if it found that
         that payment did not constitute State aid, to provide the applicant with an explanation of the reasons for which the facts
         and points of law put forward failed to demonstrate the existence of State aid, although it was not required to define its
         position on matters which were manifestly irrelevant or insignificant or plainly of secondary importance (see paragraph 44
         above).
         
         
         
         55
            
          As regards the question of whether, in the contested decision, the Commission answered the applicant’s question sufficiently,
         the Court finds  that the Commission’s legal assessment (see point 3 of the contested decision) concerns only the aids totalling
         DKK 300 million and DKK 171.8 million respectively, without addressing the question of the DKK 100 million. The issue of the
         change in status of Combus’s employees is discussed only in point 2.2 of the contested decision (under the headings ‘summary
         of the case’, ‘Combus A/S’), where the Commission merely states that those Combus employees who accepted the new terms were
         awarded a bonus.
         
         
         
         56
            
          The Court finds that this last statement, read in the context of the contested decision, must be interpreted as meaning that,
         in the Commission’s view, the recipients of the payment in question were only the Combus employees who had opted for the change
         to employment on a contract basis and that that payment did not constitute State aid for Combus within the meaning of Article
         87(1) EC.
         
         
         
         57
            
          This finding was, moreover, manifestly correct, since the measure in question had been introduced to replace the privileged
         and costly status of the officials employed by Combus with the status of employees on a contract basis comparable to that
         of employees of other bus transport undertakings competing with Combus. The intention was thus to free Combus from a structural
         disadvantage it had in relation to its private-sector competitors. Article 87(1) EC is aimed merely at prohibiting advantages
         for certain undertakings and the concept of aid covers only measures which lighten the burdens normally assumed in an undertaking’s
         budget and which are to be regarded as an economic advantage which the recipient undertaking would not have obtained under
         normal market conditions (Case 173/73 Italy v Commission [1974] ECR 709, paragraph 26; Case C-387/92 Banco Exterior de España [1994] ECR I-877, paragraphs 12 and 13; and Case C-280/00 Altmark Trans and Regierungspräsidium Magdeburg [2003] ECR I-0000, paragraph 84, and the case-law cited therein). Moreover, instead of paying the DKK 100 million directly
         to the officials employed by Combus, the Danish Government could have obtained the same result by reassigning those officials
         within the public administration, without paying any particular bonus, which would have enabled Combus to employ immediately
         employees on a contract basis falling under private law.
         
         
         
         58
            
          Given the obvious nature of that legal classification, the Commission was not obliged to state specific reasons in the contested
         decision on the issue of the payment of the DKK 100 million. In any event, the applicant has not established in its application
         that that payment should have been held to be unlawful State aid granted to Combus.
         
         
         
         59
            
          Regarding the plea alleging irregular use by Combus of DKK 21.3 million, which allegedly provided it with at least DKK 12.7
         million in aid, suffice it to recall that it was raised for the first time in the reply and is aimed at linking the use of
         the DKK 100 million to the use of the DKK 140 million provision. Accordingly, this plea must be held to have been submitted
         too late as provided for in the first subparagraph of Article 48(2) of the Rules of Procedure and must be held to be inadmissible
         (see paragraph 50 above).
         
         
         
         60
            
          It follows that the contested decision cannot be annulled in the present proceedings on the grounds that the Commission failed
         to find that the DKK 100 million payment involved an element of State aid in favour of Combus. The form of order seeking annulment
         of the contested decision must, therefore, be dismissed in so far as it concerns that payment.
         
         Aid in the amount of DKK [Y] to cover Combus’s future losses
         
         61
            
          The applicant puts forward several pleas criticising the aid in the amount of DKK [Y] to cover Combus’s future losses, including
         a plea based on an incorrect application of Regulation No 1191/69.
         
          Arguments of the parties
         
         
         62
            
          The applicant maintains that Combus was not performing a public service, but rather providing transport services by virtue
         of contracts governed by civil law. No public service obligation within the meaning of Regulation No 1191/69 is imposed on
         Combus. The corresponding public service obligations are borne by the public authorities responsible for transport, who can
         then pass them on to any undertaking. The amounts paid by the authorities to Combus for the services it provides result from
         the contracts concluded, and should normally ensure Combus sufficient income.
         
         
         
         63
            
          The applicant states in this regard that the transport provided by the bus undertakings is not financed by the tickets paid
         for by the passengers. The amounts paid by them do not accrue to the bus undertakings but to the public authorities entrusted
         with the task of transport. The bus undertaking has only one opposite contracting party, that is, the public authority responsible
         for transport. Accordingly, there is no tariff obligation within the meaning of Regulation No 1191/69, since the bus undertaking
         merely collects the ticket money and gives it to the public authority responsible for transport. In addition, the transport
         contract is concluded not between the passenger and the bus undertaking, but between the passenger and the public authority.
         Consequently, the Danish State pays subsidies not to the bus undertakings, but rather to the public authorities responsible
         for transport and thereby to the passengers.
         
         
         
         64
            
          Since the Danish authorities have determined that the price paid by the users of public transport need not represent the actual
         cost thereof, part of the costs incurred by the bus undertakings is financed by the Danish taxpayers. In that sense, that
         is no different from cases where a public authority purchases a product or service under market conditions.
         
         
         
         65
            
          The applicant adds that there was no question for the Danish Government of ensuring the financial equilibrium of Combus for
         the period 2001 to 2006, as compensation for expenditure inherent in a public service obligation. Rather, the government granted
         aid in the amount of DKK 300 million in order to avoid a collapse of public bus transport services which would have been to
         the detriment of the passengers, of the public authorities responsible for transport and of Combus’s employees, and to cover
         the undertaking’s loss-making contracts. The applicant states that Combus pursued a nonsensical growth policy, inter alia
         by responding to numerous invitations to tender with price proposals which were too low and by acquiring other undertakings.
         
         
         
         66
            
          According to the applicant, nor was the DKK 171.8 million in State aid granted in April 2001 intended to cover Combus’s future
         contractual losses for the period 2001 to 2006. The provisions made in Combus’s annual accounts for loss-making contracts
         from 1999 until their expiry were sufficient. Thus, when it drew up its accounts for 2000, the new board appointed by Arriva
         after acquiring Combus did not find it necessary to make other provisions.
         
         
         
         67
            
          The Commission contends that the public financing of Combus in the order of DKK [Y] is covered by Regulation No 1191/69. Combus
         provides a transport service encompassing public service obligations financed by the agreed-upon compensation. This does not
         mean that Combus is the only operator to which the regulation applies. The applicant’s argument that the regulation applies
         only to public entities responsible for the organisation of public transport services, and not to the bus undertakings themselves,
         is based on an incorrect interpretation of the regulation. The regulation is aimed at facilitating the financing of bus undertakings
         through the grant of compensation corresponding to their public service obligations. The existence of intermediary bodies
         between the State and Combus does not deprive Combus of its status as a public service provider.
         
         
         
         68
            
          The Commission states that a service of general economic interest (public service) may be entrusted to an undertaking either
         unilaterally or through a contract (Case C-159/94 Commission v France [1997] ECR I-5815, paragraph 65 et seq.), which is confirmed by Regulation No 1191/69, which contains an entire section (Section
         V) concerning public service contracts.  Article 1(4) of that regulation provides, regarding Section V, that Member States
         may conclude contracts expressly referred to as public service contracts ‘in order to ensure adequate transport services’.
         
         
         
         69
            
          Regarding the contested decision, the Commission and the Danish Government state that the Commission rightly finds that it
         is for the Danish authorities to determine, at the county and municipal levels, the routes, timetables and fares applied by
         the bus undertakings, particularly the routes that those undertakings must operate in order to ensure adequate transport services.
         The purpose of the invitations to tender is to procure the required services at best possible cost and to find the operator
         which will require the least amount of financial assistance. In the present case, Combus’s financing should thus be added
         to the price proposed by Combus in response to the invitations to tender.
         
         
         
         70
            
          The relevant Danish legislation, dating from 1995, imposes a public service obligation on regional authorities which consists
         of drawing up, through county and inter-municipal transport undertakings, plans concerning traffic volumes and forecasts and
         determining fares and ticketing systems. Those transport undertakings may choose between providing the transport themselves
         – which has never been done – or entrusting bus undertakings such as Combus with the task. Thus the public service obligation
         incumbent on Combus results from the contracts Combus has concluded with the public authorities and the transport undertakings.
         
         
         
         71
            
          In so far as the applicant appears to equate public authorities to transport providers who ‘subcontract’ their obligations
         to bus undertakings, the Commission states that the responsibility which the public authorities have for the organisation
         of transport comes under the internal organisation of each State, whereas the actual implementation of transport services
         by undertakings encompassing means of transport and personnel is another thing entirely. Moreover, the responsibility incumbent
         on the public authorities to ensure transport services is of a different nature from that of the undertakings which actually
         provide transport services. In any event, even if there were ‘subcontracting’ of transport services, this does not necessarily
         mean that the sub-contractors do not have public service obligations which they are bound to fulfil.
         
         
         
         72
            
          The Commission concludes that the compensation granted by the public authorities to operators such as Combus, undeniably higher
         than the income generated by ticket sales, places the situation squarely in the domain of public service obligations and,
         therefore, obligations that the bus undertakings would not take on to the same extent if they took account of their own commercial
         interest. The provision of public services can thus be distinguished from activities which are purely commercial in nature.
         
          Findings of the Court
         
         
         73
            
          It should be borne in mind that the Commission, in the contested decision (point 3.7), finds that the payment of DKK [Y] was
         compensation for future losses associated with public service obligations for the period 2001 to 2006 and thus satisfies the
         requirements of Regulation No 1191/69. The Commission finds inter alia that the Danish contractual system complies with that
         regulation in that invitations to tender launched by local authorities ‘take account of cost and income factors relating to
         the tariff obligation, the obligation to operate and the obligation to carry for the purposes of Articles 10 to 13 of the
         regulation’. In its view, that system ‘also satisfies the requirements of Article 14 of Regulation [No 1191/69] concerning
         public service contracts’. The payment of the DKK [Y] is, in effect, ‘an adjustment of the normal compensation which Denmark
         must pay’. The aid also satisfies the requirements of Regulation No 1191/69 ‘in that it takes account of the scale of the
         financial constraints arising from the public service obligations’ (see point 3.2 of the contested decision). The Commission
         infers therefrom that the operating aid for Combus’s bus routes during the period 2001 to 2006 is compatible with the EC Treaty.
         
         
         
         74
            
          The Commission’s reasoning on this point does not hold up to scrutiny.
         
         
         
         75
            
          First of all, Article 2(1) of Regulation  No 1191/69 defines ‘public service obligations’ as ‘obligations which the transport
         undertaking in question, if it were considering its own commercial interests, would not assume or would not assume to the
         same extent or under the same conditions’, whilst Article 2(2) adds that public service obligations within the meaning of
         paragraph 1 ‘consist of the obligation to operate, the obligation to carry and tariff obligations’. In that context, Articles
         10 and 11, in Section IV of that regulation, provide for ‘common compensation procedures’ where there is an obligation to
         operate or to carry and where there is a tariff obligation.
         
         
         
         76
            
          It is clear that the Danish public bus transport system and particularly the role played by Combus in the implementation of
         that system are not covered by those provisions of Regulation No 1191/69.
         
         
         
         77
            
          The wording of Article 1 of Regulation No 1191/69 introduces a clear distinction between the ‘obligations inherent in the
         concept of a public service’ which the competent authorities are to terminate (Article 1(3)) and ‘transport services’ which
         those authorities are authorised to ensure through ‘public service contracts’ (Article 1(4)), stating that those authorities
         may ‘however, … maintain or impose the public service obligations referred to in Article 2’ (Article 1(5)). Only in this latter
         case may the common compensation procedures provided for inter alia in Section IV of Regulation No 1191/69, that is, Articles
         10 to 13, be applied. Although the German version of Article 1(4) of Regulation 1191/69 may authorise the competent authorities
         to conclude contracts for transport services ‘on the basis of public service obligations’, that is clearly a drafting error,
         contrary to the new contractual system, since none of the other language versions so provides.
         
         
         
         78
            
          Article 14 of Regulation No 1191/69 defines a ‘public service contract’ as a contract concluded in order to provide the public
         with adequate transport services, and which is to provide for, in addition to its duration, all of the transport service details,
         including ‘the price of the services … , which shall either be added to tariff revenue or shall include the revenue, and details
         of financial relations between the two parties’ (Article 14(1) and (2)(b)). Thus, this purely contractual system does not
         provide either for compensation for achievement of an imposed objective or for a public service obligation within the meaning
         of Article 2 of Regulation No 1191/69.
         
         
         
         79
            
          Article 14(4) to (6) of Regulation No 1191/69 provides in this respect that if an undertaking intends to discontinue a transport
         service which is not covered by the contract system ‘or’ the public service obligation, the competent authorities may insist
         on the maintenance of the service concerned, in which case expenditure arising from that obligation ‘shall be compensated
         in accordance with the common procedures laid down in Sections II, III and IV’. It necessarily follows that the contractual
         relationships established following a tender procedure between the transport undertaking and the competent authority include,
         by virtue of Article 14(1) and (2) of Regulation No 1191/69, a specific financing scheme which leaves no room for compensation
         according to the methods laid down in Sections II, III and IV of that regulation.
         
         
         
         80
            
          In this case, the obligations to operate, to carry and to collect the tariffs fixed were not imposed unilaterally on Combus;
         nor was Combus obliged to operate its transport services in an unprofitable manner, contrary to its commercial interests.
         On the contrary, Combus voluntarily assumed those obligations once it had been successful in the tendering procedures, which
         did not provide for any State subsidies and in which it was free to participate or not, depending on its economic interests.
         The transport services provided by Combus were paid for by the price it itself had proposed in its bids in the tendering procedures
         and which were included in the contracts subsequently concluded. Accordingly, it cannot be inferred that Combus had to bear
         public service obligations within the meaning of Article 2(1) of Regulation No 1191/69.
         
         
         
         81
            
          The reciprocal obligations of Combus and the competent authorities were fully laid down by the contracts concluded for that
         purpose. Thus Combus was entitled to payment of the contractual price it had stated in its own bid, in return for which it
         was obliged, for the duration of the contracts, to provide operation, carriage and collection of the tariffs fixed by the
         competent authority and to pass on to that authority the income from ticket sales. In particular, Combus was not to bear any
         tariff risk because the contract price was not affected by any fluctuations in the number of passengers or the income from
         ticket sales. Under the contract system, therefore, there was no reason for Combus to be granted any compensation in addition
         to the agreed remuneration.
         
         
         
         82
            
          Contrary to the Commission’s assertions, then, it is not because of the ‘compensation’ granted by the public authorities,
         amounting to more than the income from ticket sales, that Combus actually took on public service obligations. In fact, Combus
         obtained only the financial remuneration provided for in the transport contracts it had voluntarily concluded with the competent
         authorities after having been successful in the tendering procedure.
         
         
         
         83
            
          The contested decision is, therefore, vitiated by an error in that it finds the payment of DKK [Y] to be compensation for
         public service obligations for the purposes of Articles 2 and 10 to 13 of Regulation No 1191/69.
         
         
         
         84
            
          In any event, even if Combus, in the course of providing its transport services, could be viewed as being subject to public
         service obligations – in that its services, from the point of view of its users, were ‘of general economic interest, such
         interest having special characteristics, in relation to those of other economic activities’ (Case C-266/96 Corsica Ferries France [1998] ECR I-3949, paragraph 45) – the payment of DKK [Y] authorised by the contested decision did not comply with the relevant
         provisions of Regulation No 1191/69.
         
         
         
         85
            
          It should be borne in mind that Regulation No 1191/69 authorises the competent national authorities to adopt, in the field
         of road transport, all the measures covered by that regulation, including financing measures necessary to that end, and that
         Article 17(2) thereof even exempts them from the prior notification procedure provided for by Article 88(3) EC. Regulation
         No 1191/69 thus introduces a sectoral derogation from the prohibition on State aid, the principle of which is laid down in
         Article 87(1) EC, and leaves the Commission no margin of discretion regarding the authorisation of aids covered by that derogation.
         It follows that that regulation establishes a particularly favourable authorisation scheme, one which thus calls for a narrow
         interpretation (see, by analogy, Commission v France, cited above, paragraph 53, and Joined Cases T-132/96 and T-143/96 Freistaat Sachsen and Others v Commission [1999] ECR II-3663, paragraph 132, concerning Articles 86(2) and 87(2) EC).
         
         
         
         86
            
          That particularly favourable authorisation scheme must therefore be limited to those aids which are directly and exclusively
         necessary for the performance of the public transport service per se, and do not include subsidies intended to cover deficits
         incurred by the bus transport undertaking as a result of circumstances other than its task of providing transport, such as
         the consequences of unsound financial management which is not an inherent factor in the transport sector. The public financing
         of those deficits which are not specifically sectoral in nature can be authorised only pursuant to the general provisions
         found in Article 87(2) and (3) EC.
         
         
         
         87
            
          The Court finds that the losses accumulated by Combus were not occasioned directly and exclusively by the provision of transport
         services per se, but rather are the result of the general management of the undertaking, particularly the submission of tenders
         with excessively low prices with a view to being the successful tenderer.
         
         
         
         88
            
          In addition, the contracts which Combus concluded with the competent authorities following the tendering procedures already
         provided for remuneration – proposed by Combus itself in its bids – which was, in principle, sufficient for the provision
         of the transport service, without Combus receiving any compensation from the State. Under the contractual scheme introduced
         by Regulation No 1893/91, which amended the provisions of Regulation No 1191/69, it was therefore necessary to refer to those
         contracts, the only valid points of reference, to determine which payments would be likely to be authorised to finance the
         bus transport service. Article 14(2)(c) of Regulation No  1191/69 provides explicitly for the possibility of amendment and
         modification of those contracts ‘in particular to take account of unforeseeable changes’.
         
         
         
         89
            
          The contested decision, however, far from noting such unforeseeable changes in the case of Combus and analysing the losses
         caused by the individual transport contracts, refers to Combus’s overall financial situation (see table 7 in point 3.1 of
         the contested decision) and lists several amounts covering the years 1998 to 2008 (State aids, debt cancellation, restructuring
         costs, investments, etc.), concluding (see point 3.1 of the contested decision in fine) that ‘the balance, i.e. DKK [Y] (2001 value), is equated with State aid which falls to be assessed in accordance with Regulation
         No 1191/69’. This generalised, overall approach by the Commission is incompatible with the contractual system focusing on
         individual transport contracts established by Article 14 of Regulation No 1191/69.
         
         
         
         90
            
          Before the Court, the Commission relied on Case T-106/95 FFSA and Others v Commission [1997] ECR II-229, paragraph 178, which allowed compensation to offset the additional costs incurred in performing the particular
         task assigned to an undertaking entrusted with the operation of a service of general economic interest when the grant of the
         aid is necessary in order for that undertaking to be able to perform its public service obligations under conditions of economic
         equilibrium. According to the Commission, the aid granted in this case allowed Combus to take on public service obligations
         assigned to it on each of its bus routes under precisely such conditions of economic equilibrium.
         
         
         
         91
            
          That case-law does not apply to the present situation, however. The undertaking concerned in FFSA and Others v Commission, cited above, that is, La Poste, had performed public service tasks in a reserved sector which was not as such exposed to
         competition: La Poste was obliged to provide a general postal service throughout the national territory, at uniform tariffs
         and on similar quality conditions, irrespective of the specific situations or the degree of economic profitability of each
         individual operation. To that end, La Poste had had to equip itself with infrastructures the costs of which were not covered
         by the tariffs, which explained the State compensation paid to it. 
         
         
         
         92
            
          In this case, by contrast, all of the transport activities performed by Combus and by all of the other bus transport undertakings
         active in the Danish market in public transport by road were open to competition; it was not a sector reserved to a single
         undertaking whose specific costs resulting from the provision of a public service had to be compensated in order to eliminate
         the financial burden on the undertaking as compared to undertakings competing with it in other sectors. All transport undertakings
         active in that market were in the same situation: they were free to participate in the tendering process and to propose to
         the transport authorities the contractual price which corresponded to their economic interest, whilst remaining obliged to
         comply with their contractual commitments following the conclusion of transport contracts.
         
         
         
         93
            
          This finding is not disturbed by the fact that Combus had actually to perform the contracts by which it was bound to the competent
         authorities. That obligation is inherent in any bilateral contract and cannot by itself justify compensation in the form of
         the aid contemplated in this case. Even if each contract held by Combus involved the performance of a public service and Combus
         was the only undertaking called on to perform that service on the routes assigned to it, Combus had undeniably already benefited
         contractually from the application of Regulation No 1191/69 with respect to the remuneration provided for in its public service
         contracts.
         
         
         
         94
            
          Nor has it been established in the contested decision that only financial rescue of Combus was such as to guarantee the functioning
         of the competitive environment prevailing in the Danish bus public transport market. The Commission and the Danish Government
         merely stated that, were Combus to go bankrupt, there was a considerable likelihood of disruption of the transport service
         provided by Combus, since competitors would not be in a position to take over Combus’s activities immediately. Contrary to
         those assumptions and vague statements, the applicant stated in its application, and was not contradicted by the Commission
         and the Danish Government, that the Danish bus transport market is capable of adapting quickly to demands from the transport
         authorities and that, in the event of liquidation of an undertaking which has secured a contract, recourse may be had easily
         to other undertakings until a new round of tenders has been initiated. Consequently, in the eventuality that Combus were to
         be liquidated, its contracts could be taken over by other operators. 
         
         
         
         95
            
          Moreover, the Danish system of invitations to tender provides for renewal every five years of each public service contract,
         bus route by bus route (see point 2.1 of the contested decision). Since the possibility of renewing contract holders is inherent
         in such a scheme, it cannot be alleged that the taking-over by other undertakings of Combus’s activities prior to the five-year
         term of Combus’s contracts would have been such as to perturb the performance of the transport service on the routes concerned.
         
         
         
         96
            
          Since the Commission and the Danish Government have relied on a derogation from the principle of prohibition of State aid,
         they should have demonstrated that all the conditions of application of that derogation were satisfied. They have not set
         out in detail why, in the event of Combus’s going bankrupt, the provision of transport services on the routes served by it
         would no longer be possible in economically acceptable conditions (see, by analogy, Commission v France, cited above, paragraph 101). 
         
         
         
         97
            
          In response to a question from the Court, the Commission again maintained that the payment of DKK [Y] fulfilled the conditions
         laid down in paragraph 95 of Altmark Trans and Regierungspräsidium Magdeburg, cited above, and thus could no longer be considered as State aid within the meaning of Article 87(1) EC.
         
         
         
         98
            
          Suffice it to note that, contrary to the Commission’s submission, the payment of the DKK [Y] does not satisfy all of the conditions
         laid down in that judgment. As explained in paragraphs 75 to 83 above, Combus was not actually entrusted with the performance
         of public service obligations, as required by paragraph 89 of Altmark Trans and Regierungspräsidium Magdeburg. In any event, the contested decision, particularly the presentation of table 7 and the calculation of the DKK [Y] (see point
         3.1 of the contested decision in fine), does not show that the factors on the basis of which the disputed compensation was calculated had been previously established
         in an objective and transparent manner, as required by paragraphs 90 and 91 of that judgment.
         
         
         
         99
            
          It follows from the foregoing that the plea in law based on incorrect application of Regulation No 1191/69 must be upheld.
         Accordingly, the contested decision must be annulled in so far as it authorised the payment of DKK [Y] pursuant to that regulation,
         without its being necessary to rule on the other pleas put forward on this point.
         
         Aid in the amount of DKK [X] to cover past losses accumulated by Combus Plea of incorrect application of Article 73 EC 
         
         
         100
            
          As rightly pointed out by the applicant, the Member States may no longer rely directly on Article 73 EC in situations not
         covered by secondary Community law. Thus, so long as Regulation No 1191/69 does not apply to the present case and the payment
         of the DKK [X] falls within the scope of Article 87(1) EC, Regulation (EEC) No 1107/70 of the Council of 4 June 1970 on the
         granting of aids for transport by rail, road and inland waterway (OJ, English Special Edition 1970 (II), p. 360) lists exhaustively
         the circumstances in which the authorities of the Member States may grant aids under Article 73 EC (Altmark Trans and Regierungspräsidium Magdeburg, cited above, paragraphs 107 and 108).
         
         
         
         101
            
          Accordingly, the plea directed against the contested decision in so far as it authorises the payment of the DKK [X] on the
         basis of Article 73 EC must be upheld.
         
         Pleas of infringement of Article 87(3)(c) and incorrect application of the Guidelines Arguments of the parties
         
         
         102
            
          The applicant maintains that the aid granted to Combus in the amount of DKK [X] is not covered by either Article 87(3)(c)
         EC or the Guidelines because it cannot in any way be viewed as restructuring aid. It points to the absence of a restructuring
         plan and states that Denmark itself never considered the first aids paid out as being capable of falling within the scope
         of Article 87(3)(c) EC, but concluded that they did not fall within the scope of Article 87(1) EC. This is why no restructuring
         plan was submitted.
         
         
         
         103
            
          The applicant states that Combus pursued an aggressive growth policy by entering into contracts at a loss. That policy was
         the reason for its making losses, particularly in 1998, 1999 and 2000. The aids granted to Combus were aimed solely at covering
         those losses and ensuring the survival of a State undertaking. They can only be described as rescue or operating aids. Article
         87(3)(c) EC, however, does not authorise operating aids. Nor were the provisions on rescue aid found to be relevant in the
         contested decision. Consequently, there is no legal basis for authorising those aids.
         
         
         
         104
            
          According to the Commission, the applicant’s line of argument has no bearing on the issue. The contested decision was based
         primarily on Article 73 EC as regards the aid relating to past losses. It is based on the idea that that aid is compensation
         for the performance of a public service task in the field of transport.
         
         
         
         105
            
          The Commission states that rationalisation measures were taken based on a restructuring plan which provided inter alia for
         the purchase of new buses, dismissal of some of the employees, the sale of certain assets and some cost-cutting. The submission
         of those measures led the Commission to consider whether the State financing could be authorised as restructuring aid. It
         did, however, take account of the fact that restructuring aid must make the recipient undertaking capable of generating profits
         so that it no longer is a recipient of public subsidies. Regional bus transport is an activity which is not run under profitable
         conditions, since it is dependent on the grant of public subsidies.
         
         
         
         106
            
          The possibility cannot be excluded, however, that the aid in question does contribute to the development of the sector concerned
         for the purposes of Article 87(3)(c) EC. The measures taken by the Danish authorities, particularly the award of contracts
         through a tendering procedure, help to strengthen competition because they offer a number of private operators the opportunity
         to take part in that process. Combus’s current position as a former State undertaking in relation to its private-sector competitors
         is part of that trend, all the more so because Combus had to achieve savings, reduce its workforce and renew its bus fleet
         in order to perform its tasks better. In the Commission’s view, that rationalising of the former State undertaking helps to
         improve competition conditions in the market in question, since a rollback of public-sector involvement generally serves to
         promote free trade.
         
         
         
         107
            
          The Commission even submits that the contested decision may be understood as promoting a ‘sui generis’ type of restructuring which in turn leads to a ‘sui generis’ type of viability for an undertaking entrusted with a public service task. If one accepts that the restructuring of a public
         service undertaking is aimed solely at internally rationalising of that undertaking – which then becomes viable by itself,
         if one disregards the public service obligations – the aids granted to cover past losses could be classified as restructuring
         aids, even though Combus still has to receive subsidies in order to discharge its public service obligations.
         
         
         
         108
            
          The Commission reiterates, however, its argument that the applicant’s arguments on this point are, in any event, of limited
         relevance, since the contested decision was ultimately not based on Article 87(3)(c) EC. Following the same line of reasoning,
         the Commission submits that the applicant’s argument that the aid in question is operating aid is immaterial. Since it is
         not restructuring aid in the strict sense of the term, it was not necessary to have a prior restructuring plan.
         
         
         
         109
            
          Whilst acknowledging that the Guidelines require a link to a restructuring plan, the Commission maintains that the various
         rationalisation measures taken by the Danish authorities – namely, the reform of the status of the employees which was part
         of the privatisation plan beginning in 1998 and the privatisation itself which took place in 2000 – pursued the same objective:
         Combus’s transition towards commercial operation. Those measures came about within one and the same framework comprising a
         number of financial and operational initiatives. The fact that the privatisation plan was completed only in 2000 does not
         preclude its being viewed overall as a preconceived plan. That plan was finalised in the course of its implementation with
         the assistance of a private investor, namely Arriva.
         
         
         
         110
            
          In its rejoinder, the Commission adds that the Danish authorities submitted to it a business plan for Combus in which they
         outlined their restructuring actions in relation to the privatisation of Combus. The concept of the rationalisation process
         already existed when the decision was made to reform the employees’ status. In that context, the Commission refers to the
         travaux préparatoires for two laws submitted to the Danish Parliament in 1995 and 1998. According to the Commission, it is not necessary for such
         a restructuring plan to be finalised in advance; rather, it is sufficient that the aids falling to be assessed are a consequence
         of the implementation of that plan, which was the case here.
         
          Findings of the Court
         
         
         111
            
          The Court observes that, in the contested decision, the Commission, after having found that the conditions for the existence
         of restructuring aid were satisfied, notes (point 3.4.7 of the contested decision) that ‘Combus’s viability remains to be
         assessed, however, since the company will cease to be a distinct legal person [following its transfer to Arriva] and that
         that viability also depends on the aid granted under Regulation No 1191/69. This situation may render the above analysis completely
         hypothetical’. The Commission infers therefrom (point 3.7 of the contested decision) that the payment of the DKK [X] ‘may
         potentially be considered as compatible with Article 87(3)(c) EC or at least with Article 73 EC, … [it] may be likened to
         restructuring aid aimed at reducing debt arising from earlier losses and at contributing to the achievement of the restructuring
         plan and is, in any event, compensation for losses for the purposes of Article 73 EC, which is of direct application’.
         
         
         
         112
            
          In its written pleadings, the Commission attempted to explain that uncertain and ambiguous reasoning by stating that, in the
         contested decision, it first discussed ‘restructuring aid’ and, second, to be on the safe side, supplemented its analysis
         by referring to the provisions on public service activities. The applicant’s pleas directed against the authorisation of ‘restructuring
         aid’ were described by the Commission as irrelevant on the grounds that the contested decision was based on Article 73 EC
         as its principal legal basis. The considerations concerning ‘restructuring’ were not decisive because Combus was not truly
         viable.
         
         
         
         113
            
          At the same time, the Commission seems to have changed its analysis of Combus’s viability, finding that one can talk of a
         ‘sui generis’ type of restructuring leading to a ‘sui generis’ type of viability. If one accepts that the restructuring of an undertaking entrusted with a public service task is aimed
         solely at internal rationalisation of that undertaking, then the aid granted to cover past losses could be classified as restructuring
         aid, even though Combus still has to receive compensation in order to discharge its public service obligations
         
         
         
         114
            
          Faced with this position of the Commission, the Court finds that the contested decision cannot be interpreted as meaning that
         the college of Commissioners granted clear, unconditional and definitive authorisation for payment of DKK [X] on the basis
         of Article 87(3)(c) EC and the Guidelines. On the contrary, the Commission’s reasoning must be considered as expressing serious
         doubt as to Combus’s viability for the purposes of that article and the Guidelines, a doubt which the Commission did not,
         however, believe it was bound to clarify since Article 73 EC seemed to it to be a sufficient legal basis for the authorisation
         of the aid in question. Since that latter provision may not be so relied on (see paragraphs 100 and 101 above), the payment
         of the DKK [X] is no longer validly authorised in the contested decision.
         
         
         
         115
            
          Even if – contrary to what may be inferred from Joined Cases T-371/94 and T-  394/94 British Airways and Others v Commission [1998] ECR II-2405, paragraph 116 and 117 – it were to be found that the contested decision could be validly supplemented
         by the new concept of viability on which the Commission’s agents elaborated before the Court, the question of Combus’s viability
         would not be resolved. The Commission in fact expressly stated, in response to a question from the Court, that the assessment
         of Combus’s profitability had to take account of the fact that part of the aid was ‘compensation for public service obligations
         falling under Regulation No 1191/69’, adding that ‘without that compensation, the undertaking would not be profitable’. However,
         as discussed in paragraphs 75 to 99 above, Combus was not entrusted with the performance of public service obligations and,
         in any event, the payment of the DKK [Y] authorised under Regulation No 1191/69 does not satisfy the conditions laid down
         by that regulation. Consequently, Combus’s viability cannot in any manner be considered as established.
         
         
         
         116
            
          Accordingly, the Court must uphold the pleas in law directed against the contested decision in so far as it authorises the
         payment of the DKK [X] on the basis of Article 87(3)(c) EC and the Guidelines, without its being necessary to consider whether
         the other conditions of existence of restructuring aid are satisfied, including the one concerning the existence of a restructuring
         plan which satisfies the Guidelines’ requirements.
         
         
         
         117
            
          It follows from the foregoing that the authorisation for the payment of the DKK [X] must be annulled in its entirety, without
         its being necessary to rule on the other pleas in law submitted on this point.
         
         
         Costs
         118
            
          Under the first subparagraph of Article 87(3) of the Rules of Procedure, the Court of First Instance may order that the costs
         be shared if the parties fail on one or more heads. In the present case, since the Commission has substantially failed, the
         Court considers it fair, having regard to the circumstances of the case, to order the Commission to pay all of the costs,
         except for those incurred by the Kingdom of Denmark, which will bear its own costs pursuant to the first subparagraph of Article
         87(4) of the Rules of Procedure.
         
         
         On those grounds, 
         
         
         
            
            THE COURT OF FIRST INSTANCE (Second Chamber, Extended Composition)
         
         
          hereby:
         
            
            
             
               1.
                  Annuls Commission decision SG(2001) D/287297 of 28 March 2001 (aid NN 127/2000) in so far as it declares aid granted by the
                     Danish authorities to Combus A/S in the form of capital injections in the amounts of DKK [Y] and DKK [X] to be compatible
                     with the common market;
                  
               
            
            
            
             
               2.
                  Dismisses the remainder of the application; 
               
            
            
            
             
               3.
                  Orders the Commission to bear its own costs and pay those of the applicant; 
               
            
            
            
             
               4.
                  Orders the Kingdom of Denmark to bear its own costs.
               
            
            
                  Forwood
               
               
                  Pirrung 
               
               
                  Mengozzi 
               
            
                  Meij
               
               
                  
               
               
                  Vilaras 
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
            
            
            
            
            
            
            
         
         
          Delivered in open court in Luxembourg on 16 March 2004.
         
         
         
         
                  H. Jung
               
               
                  J. Pirrung
               
            
         
         
         
                  Registrar
               
               
                  President
               
            
         
            Table of contents
         
         
                  Facts and procedure
                     
               
            
                      
                        Background to the dispute
                     
               
            
                      
                        The contested decision
                     
               
            
                      
                        Procedure
                     
               
            
                  Forms of order sought
                     
               
            
                  Admissibility and scope of the action
                     
               
            
                  Substance
                     
               
            
                      
                        Aid in the amount of DKK 140 million to cover special expenditure associated with the status of official of Combus employees
                     
               
            
                      
                        Aid in the amount of DKK 100 million to finance Combus employees’ waiving their status of official in order to transfer to
                           employment on a contract basis
                        
                     
               
            
                      
                        Aid in the amount of DKK [Y] to cover Combus’s future losses
                     
               
            
                          
                        Arguments of the parties
                     
               
            
                          
                        Findings of the Court
                     
               
            
                      
                        Aid in the amount of DKK [X] to cover past losses accumulated by Combus
                     
               
            
                          
                        Plea of incorrect application of Article 73 EC
                     
               
            
                      
                        Pleas of infringement of Article 87(3)(c) and incorrect application of the Guidelines
                     
               
            
                          
                        Arguments of the parties
                     
               
            
                          
                        Findings of the Court
                     
               
            
                  Costs
                     
               
            
      
          1 –
            
            Language of the case: Danish.
         
      2 –
         
         Confidential information withheld.