OPINION OF ADVOCATE GENERAL

PITRUZZELLA

delivered 11 March 2021 (1)

Joined Cases C‑174/19 P and C‑175/19 P

Scandlines Danmark ApS,

Scandlines Deutschland GmbH (C‑174/19 P)

Stena Line Scandinavia AB (C‑175/19 P)

v

European Commission

(Appeal – Action for annulment – State aid – Individual aid – Public financing of the Fehmarn Belt fixed link project – Decision declaring that a measure does constitute State aid at the end of the preliminary examination procedure – Determination of whether the measure is liable to distort competition – Statutory monopoly – Cross-appeal – Admissibility)

1.        This Opinion concerns two almost identical appeals brought by certain ferry operators (Scandlines Danmark ApS and Scandlines Deutschland GmbH, in the first appeal, and Stena Line Scandinavia AB, in the second, ‘the appellants’) which operate on Fehmarn Belt, a stretch of sea that separates Fehmarn Island, in Germany, from the island of Lolland, in Denmark. The two appeals (which I shall refer to as ‘the main appeals’) seek the setting aside of two judgments of the General Court of the European Union, (2) which are themselves almost identical, by which the General Court dismissed in part the appellants’ actions for the annulment of the decision by which the European Commission decided, at the end of the preliminary examination procedure, to raise no objections with regard to the measures adopted by the Kingdom of Denmark in connection with a project to create a fixed link across Fehmarn Belt (‘the contested at issue’). (3)

2.        In both those cases, the Commission has brought a cross-appeal (together, ‘the cross-appeals’) by which it disputes the admissibility of the actions which the appellants brought before the General Court.

3.        In addition to the importance they have on account of the very large scale of the Fehmarn Belt project – which is the subject of the decision at issue – the present cases afford the Court an opportunity to provide guidance on the requirement, which must be fulfilled if a national measure is to be classified as ‘State aid’, that the measure in question must be liable to distort competition, in particular with reference to situations where a statutory monopoly exists. The cross-appeals in the present cases also raise interesting questions concerning the admissibility of that type of appeal.

I.      Facts

4.        The facts of the present cases are set out in the judgments under appeal, to which I would refer for further detail. (4) For the purposes of the present proceedings, I would simply make the following points, set out below.

A.      The Fehmarn Belt fixed link project

5.        By an international treaty concluded in 2008, the Federal Republic of Germany and the Kingdom of Denmark approved a project to construct a link across Fehmarn Belt (‘the project’).

6.        The project consists, first of all, in an immersed tunnel that will provide a coast-to-coast link between Rødby, on the island of Lolland, and Puttgarden, on Fehmarn Island, by means of an electrified railway line and a motorway (‘the fixed link’) and, secondly, in hinterland road and rail connections in Denmark (‘the hinterland connections’).

7.        More specifically, the works relating to the rail connections part of the hinterland connections (‘the hinterland rail connections’) will include the expansion and upgrade of the existing rail link between Ringsted and Rødby, which covers approximately 120 kilometres and is owned by Banedanmark, the Danish State public rail infrastructure manager. (5)

8.        In accordance with the international treaty and a Danish law of 2015 on the construction and operation of the fixed link and the hinterland connections, (6) two Danish public undertakings were entrusted with the execution of the project. The first, A/S Femern, was entrusted with the financing, construction and operation (7) of the fixed link, while the second, A/S Femern Landanlæg, was entrusted with the financing, construction and operation of the hinterland connections. Femern is controlled by Femern Landanlæg, which in turn is controlled by a company owned by the Danish State.

9.        In so far as concerns the hinterland rail connections specifically, (8) Femern Landanlæg is to be responsible for their construction and management, including maintenance. The works to upgrade those connections will be carried out by Banedanmark, which will be responsible for operating the connections on the same conditions as apply to other parts of the Danish State railway system. (9) Once the project is completed, ownership of the hinterland rail connections will be shared between Banedanmark (20%) and Femern Landanlæg (80%). Banedanmark is to bear the costs of operating the hinterland rail connections, while the costs of maintaining them are to be shared by Femern Landanlæg and Banedanmark on a pro-rata basis in accordance with their respective holdings.

10.      The project is financed by Femern and Femern Landanlæg. In that connection, the Danish authorities have adopted a series of measures including a capital injection for the benefit of Femern and a State guarantee and State loans for the benefit of Femern and Femern Landanlæg. More specifically, the planning, construction and operation of the fixed link and the hinterland connections are financed by loans raised on the international financial markets and guaranteed by the Danish State or, as an alternative method of financing, by government-backed State loans from the National Bank of Denmark.

11.      Femern is to receive the charges paid by users of the fixed link in order to discharge its debt and will pay dividends to Femern Landanlæg, which will use the dividends to discharge its own debt. Femern Landanlæg will also receive 80% of the fees paid by railway operators for use of the hinterland rail connections, to be charged by Banedanmark, corresponding to its share of ownership of that infrastructure (of which Banedanmark will own 20%).

B.      The decision at issue

12.      Following the submission of several complaints in which it was argued that the measures adopted by the Danish authorities in relation to the project were incompatible with the EU rules on State aid, the Commission, having been notified of those measures by the Danish authorities in accordance with Article 108(3) TFEU, adopted the decision at issue on 23 July 2015.

13.      The decision at issue is divided into two parts.

14.      In the first part, the Commission found that the measures granted to Femern Landanlæg to finance the planning, construction and operation of the hinterland connections did not constitute State aid within the meaning of Article 107(1) TFEU. (10)

15.      In so far as concerns the hinterland rail connections in particular, the Commission concluded in the decision at issue that the national rail network in Denmark was operated and managed on a market that is not open to competition. More specifically, after noting that Banedanmark would be responsible for upgrading those connections and would operate them on the same conditions as apply to other parts of the Danish State railway system, the Commission concluded that, given the nature of the national rail infrastructure network in Denmark, there was no competition on or for the market for the operation and management of the national rail network. (11) In addition, the Commission concluded that, since the operation and management of the national network was carried out in a national, geographically closed and separated market, the public financial support made available to Femern Landanlæg was not liable to affect trade between the Member States. (12)

16.      In the second part of the decision at issue, (13) relating to the measures granted to Femern to finance the planning, construction and operation of the fixed link, the Commission concluded that, even if these did constitute State aid, that public financing of Femern would in any event be compatible with the internal market in accordance with Article 107(3)(b) TFEU.

II.    The procedure before the General Court and the judgments under appeal

17.      By originating applications lodged at the General Court Registry on 10 and 11 November 2015, the appellants brought two separate actions before the General Court, registered as Case T‑630/15 and Case T‑631/15 respectively, by which they sought the annulment of the decision at issue.

18.      In the course of the proceedings before the General Court, Naturschutzbund Deutschland eV (‘NABU’) and Föreningen Svensk Sjöfart (‘FSS’) intervened in support of the forms of order sought by the appellants. The Kingdom of Denmark intervened in support of the form of order sought by the Commission.

19.      By the judgments under appeal, the General Court annulled the decision at issue in part.

20.      First of all, it dismissed as unfounded the appellants’ pleas concerning the part of the decision at issue relating to the measures granted to Femern Landanlæg to finance the planning, construction and operation of the hinterland rail connections. (14)

21.      The General Court, on the other hand, upheld the appellants’ actions in so far as concerned the analysis of the public financing granted to Femern for the part of the project relating to the fixed link, finding that the Commission had failed to fulfil its obligation under Article 108(2) TFEU to initiate the formal investigation procedure in light of the existence of serious difficulties. (15)

22.      Following the delivery of the judgments under appeal, the Commission initiated the formal investigation procedure under Article 108(2) TFEU and adopted a new decision, which is now the subject of three actions for annulment currently pending before the General Court. (16)

III. Procedure before the Court of Justice and forms of order sought by the parties

23.      By the main appeals, Scandlines Danmark ApS and Scandlines Deutschland GmbH, in Case C‑174/19 P, and Stena Line Scandinavia AB, in Case C‑175/19 P, claim that the Court should, in essence, first of all, set aside the first and second judgments under appeal respectively, to the extent that the General Court dismissed the pleas which they had put forward and, secondly, order the Commission to pay the costs. The appellants also claim that the Court should dismiss the cross-appeals brought by the Commission and order it to pay the costs.

24.      The Commission contends that the Court should dismiss the main appeals and order the appellants to pay the costs. In addition, by its cross-appeals, it contends that the Court should, first of all, annul the implied decision by which the General Court held the appellants’ actions to be admissible in so far as concerns the measures granted to Femern Landanlæg, secondly, declare the actions inadmissible in so far as those measures are concerned and, thirdly, order the appellants to pay the costs of the proceedings both before the General Court and before the Court of Justice.

25.      The Kingdom of Denmark contends that the Court should dismiss the main appeals and allow the cross-appeals brought by the Commission.

26.      The forms of order sought by NABU and FSS, which intervened before the General Court in support of the appellants, are substantially the same as those sought by the appellants.

27.      By Order of the President of the Court of 22 October 2019, Rederi AB Nordö-Link (‘Rederi), Trelleborg Hamn AB (‘Trelleborg’) and Aktionsbündnis gegen eine feste Fehmarnbeltquerung eV (‘Aktionsbündnis’) were granted leave to intervene in both Case C‑174/19 P and Case C‑175/19 P in support of the forms of order sought by the appellants. The forms of order which they seek are substantially the same as those sought by the appellants.

IV.    Analysis

28.      In the main appeals, which are almost identical in content, the appellants put forward seven grounds of appeal.

29.      The first two grounds of appeal concern the parts of the judgments under appeal relating to the analysis of the measures adopted in favour of Femern Landanlæg in respect of the hinterland rail connections. By those two grounds the appellants argue that the General Court erred in law, in breach of Article 107(1) and Article 108(2) TFEU, by concluding that the Commission had not erred and had not encountered serious difficulties in reaching the view that those measures did not constitute State aid, since they were not liable to distort competition (the first ground of appeal) or to affect trade between Member States (the second ground of appeal).

30.      The remaining five grounds of appeal put forward by the appellants, on the other hand, concern the parts of the judgments under appeal relating to the analysis of the measures adopted in favour of Femern in respect of the fixed link.

31.      In its cross-appeals, which are identical in content, the Commission puts forward a single ground of appeal, by which it disputes the appellants’ standing to bring proceedings before the General Court in so far as concerns the part of the decision at issue relating to the measures adopted in favour of Femern Landanlæg.

32.      As requested by the Court, I shall focus my analysis on the Commission’s cross-appeals and on the first two grounds of appeal in the main appeals.

A.      The cross-appeals

1.      Arguments of the parties

33.      By its cross-appeals, which are supported on this point by the Kingdom of Denmark, the Commission takes issue with the implied decisions which, in its view, the General Court took in the judgments under appeal concerning the admissibility of the appellants’ actions in so far as concerns the part of the decision at issue relating to the measures adopted in favour of Femern Landanlæg.

34.      The Commission submits, first of all, that its cross-appeals are admissible. It acknowledges that, in accordance with the precedent set in the judgment of 26 February 2002, Council v Boehringer (C‑23/00 P, EU:C:2002:118; ‘Boehringer’), a decision by the General Court to deal with an objection of inadmissibility together with the substance of the case, without ruling on the objection, is not amenable to appeal. However, according to the Commission, that case-law is applicable only to main appeals, not cross-appeals, which are now governed by Article 178(2) of the Rules of Procedure. That provision in fact allows for the possibility of appealing against an implied decision relating to the admissibility of the action before the General Court.

35.      As to the substance, the Commission argues in its cross-appeals that the appellants’ actions before the General Court were inadmissible in so far as they related to the measures adopted in favour of Femern Landanlæg because the appellants are not individually concerned by those measures. The appellants failed to demonstrate, as the case-law requires, that the part of the decision at issue in question concerns them individually and, in particular, that their position on the market is seriously undermined by that part of the decision at issue. For the same reasons, the appellants were not entitled to rely on the procedural rights which Article 108(2) TFEU offers interested parties, in that they cannot be regarded as interested parties in so far as the measures relating to the hinterland rail connections are concerned.

36.      The appellants, supported by FSS and NABU, contend that the Commission’s cross-appeals are inadmissible and argue that they are, in any event, unfounded as regards their substance.

2.      Assessment

(a)    The admissibility of the cross-appeals

37.      By its cross-appeals, the Commission takes issue with the implied decisions which the General Court allegedly took in the judgments under appeal regarding the admissibility of the parts of the appellants’ actions which related to the measures adopted in favour of Femern Landanlæg.

38.      It is necessary, first of all, to ascertain whether the Commission’s cross-appeals are themselves admissible.

39.      It is apparent from the judgments under appeal that, before the General Court, the Kingdom of Denmark raised doubts concerning the admissibility of the actions brought by the appellants in so far as they related to the measures granted to Femern Landanlæg, on the basis that the appellants had no individual interest in challenging the part of the decision at issue that relates to those measures. (17)

40.      In the judgments under appeal, the General Court did not, however, analyse the issue of admissibility raised by the Kingdom of Denmark. It stated, albeit without expressly referring to the Boehringer case-law, that it was appropriate ‘to examine first of all whether the applicant’s arguments are well founded’, (18) and it then went on to dismiss those arguments as unfounded.

41.      The Commission submits that, by doing so, the General Court took an implied decision regarding the admissibility of the appellants’ actions in so far as they related to the part of the decision at issue addressing the measures granted to Femern Landanlæg. It maintains that, pursuant to Article 178(2) of the Rules of Procedure, a cross-appeal may be brought against that implied decision.

42.      I would recall that, in accordance with that provision, the form of order sought in a cross-appeal may seek to have set aside an express or implied decision relating to the admissibility of the action before the General Court.

43.      In the present case, however, taking the same approach as in the case which led to the judgment in Boehringer, and as the Commission itself acknowledges moreover, the General Court decided to dismiss as unfounded the arguments by which the appellants challenged the part of the decision relating to the measures granted to Femern Landanlæg without ruling by decision on the admissibility of that part of the actions. In other words, in the judgments under appeal, as in the case which led to the judgment in Boehringer, the General Court considered it to be justified, for reasons of procedural economy, to rule on the merits without ruling on admissibility.

44.      It follows from Boehringer (19) that, where the General Court regards it as justified for reasons relating to the sound administration of justice not to rule on an objection of inadmissibility because the claims must in any event be dismissed on the merits, it does not adopt a decision, either implied or express, that disposes of a procedural issue concerning an objection of inadmissibility. It follows that any action challenging such a decision must be regarded as inadmissible because there is no decision of the General Court open to appeal. (20)

45.      It follows that since the General Court did not in this instance adopt any decision amenable to appeal, not even an implied decision, on the admissibility of the actions, neither a main appeal nor a cross-appeal may be brought regarding that admissibility. Consequently, the Commission’s reliance on Article 178(2) of the Rules of Procedure cannot justify the admissibility of its cross-appeals.

46.      It follows from the foregoing considerations that, in my view, the Commission’s cross-appeals should be dismissed as inadmissible.

47.      That said, it must nevertheless be borne in mind that, according to settled case-law, the Court of Justice, when hearing an appeal under Article 56 of the Statute of the Court of Justice of the European Union, is required to rule, if need be of its own motion, on the admissibility of an action for annulment, and consequently on the public policy plea based on non-compliance with the condition laid down in the fourth paragraph of Article 263 TFEU according to which a claimant may seek annulment of a decision not addressed to it only if it is directly and individually concerned by it. (21)

48.      Should the Court find that, contrary to my suggestion, the cross-appeals are admissible, or if in any event it decides to analyse, of its own motion, the admissibility of the appellants’ actions before the General Court, in so far as concerns the parts thereof which relate to the measures granted to Femern Landanlæg, the following considerations will I think be relevant.

(b)    The appellants’ locus standi before the General Court with regard to the part of the decision at issue relating to the measures adopted in favour of Femern Landanlæg

49.      In the present case, it is clear that the part of the decision at issue which relates to the measures awarded in favour of Femern Landanlæg constitutes a decision adopted on the conclusion of the preliminary stage of the review procedure (22) in which the Commission concluded that the measures in question did not constitute State aid within the meaning of Article 107(1) TFEU and consequently resolved not to initiate the formal investigation procedure under Article 108(2) TFEU. (23) The addressee of that decision is the Kingdom of Denmark.

50.      Since the decision at issue is not a regulatory act within the meaning of the fourth paragraph of Article 263 TFEU, in that it is not an act of general application, (24) it is necessary to determine whether that decision is of direct and individual concern to the appellants, within the meaning of that provision.

51.      I would observe in that connection that, according to the settled case-law of the Court, going as far back as the well-known judgment of 15 July 1963, Plaumann v Commission, (25) persons other than those to whom a decision is addressed may claim to be individually concerned only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of those factors distinguishes them individually, just as in the case of the person addressed by such a decision. (26)

52.      However, it is clear from the case-law that, in State aid cases, in determining whether an applicant other than the addressee of the decision has locus standi to bring an action challenging the Commission’s decision not to initiate the formal investigation procedure under Article 108(2) TFEU, a distinction must be drawn between two different situations.

53.      Where the applicant’s action is aimed at safeguarding the procedural rights available to it under Article 108(2) TFEU, the mere status of being an interested party, for the purposes of that provision and within the meaning of Article 1(h) of Regulation No 659/1999, is sufficient to distinguish that party individually as in the case of the person addressed, and consequently such an action for annulment must be regarded as admissible. (27)

54.      On the other hand, if the applicant calls into question the merits of the decision appraising the aid taken on the basis of Article 108(3) TFEU (or even after a formal investigation procedure), the mere fact that it may be regarded as an interested party for the purposes of Article 108(2) TFEU cannot suffice to render the action admissible. The applicant must in such a case demonstrate that it has a particular status within the meaning of the Plaumann case-law I mentioned in point 51 of this Opinion. (28)

55.      In the present case, as is expressly stated in the judgments under appeal, (29) in their actions before the General Court the appellants both challenged the substance of the part of the decision at issue which relates to the measures awarded in favour of Femern Landanlæg (by their first plea in law) and alleged infringement of their procedural rights under Article 108(2) TFEU, in that the Commission had failed to fulfil its obligation to initiate the formal investigation procedure (by their third plea in law). The General Court decided, however, to analyse those pleas together (30) and rejected them as unfounded, without, as I noted in points 40 and 43 above, addressing the question of admissibility.

56.      Given that context, in order to assess the admissibility of the appellants’ actions, it is necessary, in the first place, to determine whether they had standing to bring proceedings, in accordance with the Plaumann case-law which I mentioned in point 51 above, to challenge the substance of the part of the decision at issue which relates to the measures awarded in favour of Femern Landanlæg. If that was not the case, it will then be necessary, in the second place, to establish whether, in accordance with the case-law mentioned in point 53 above, they at least had standing, as interested parties, to bring proceedings in order to safeguard the procedural rights available to them under Article 108(2) TFEU.

57.      In so far as concerns, in the first place, the appellants’ standing to bring proceedings challenging the substance of the part of the decision at issue relating to the measures awarded in favour of Femern Landanlæg, I would observe that, in order to prove to the General Court their individual interest in challenging the decision at issue, the appellants relied on the fact that, as ferry operators, they are in competition with the fixed link, as well as on the fact that they had actively participated in the preliminary review procedure conducted by the Commission. They also mentioned that the financing under the contested measures would be used to remove infrastructure (platforms and a station) providing railway access to the harbour and enabling train passengers to reach their ferries. They have also argued before the Court of Justice that they are direct competitors of the project as an integrated project.

58.      It is settled case-law that, in addition to the undertaking receiving the aid, also acknowledged as being individually concerned, for the purposes of contesting the merits of a Commission decision appraising State aid, are undertakings that are competitors of the beneficiary and have played an active role in the procedure, provided that their position on the market is substantially affected by the aid measure to which the decision at issue relates. (31)

59.      In the present case, it is clear that the beneficiary of the measures contested by the part of the actions in question is Femern Landanlæg, which, as I stated in point 8 above, is entrusted with the financing, construction and operation of the hinterland connections, including the hinterland rail connections. Even supposing that, contrary to the General Court’s finding in the judgments under appeal, the market for the operation and management of the railway infrastructure should be regarded as open to competition, in so far as the hinterland rail connections are concerned, (32) it would still have to be observed that the appellants, which operate ferries on Fehmarn Belt, have in no way shown that they are active on a market in which Femern Landanlæg operates or, therefore, that they are in competition with it.

60.      I would note, in that regard, that the approach taken in the case-law of the Court is somewhat restrictive. Indeed, the Court has had occasion to clarify that the mere fact that a measure may exert an influence on the competitive relationships existing on the relevant market and that the undertaking concerned is in a competitive relationship with the addressee of that measure cannot in any event suffice for that undertaking to be regarded as being individually concerned by that measure. (33)

61.      From that perspective, neither the argument that the financing under the contested measures will be used to remove railway access, nor the arguments relating to the integrated nature of the project, which I mentioned in point 57 above, are capable of demonstrating the existence of a direct competitive relationship between the appellants and the beneficiary of the contested measures, Femern Landanlæg.

62.      In so far as concerns the appellants’ active participation in the preliminary stage of the review, it is clear from the case-law that participation in the procedure does not constitute a necessary condition for demonstrating a competitor’s individual concern but is merely a ‘relevant factor’ in that regard. (34)

63.      It follows from the foregoing considerations that, in my view, the appellants do not have standing to contest the merits of the part of the decision at issue which relates to the measures awarded in favour of Femern Landanlæg.

64.      However, in the second place, it remains to be determined whether they might have standing to bring proceedings in order to safeguard procedural rights available to them as interested parties, within the meaning of the case-law I mentioned in point 53 above.

65.      I would point out, in that connection, that Article 1(h) of Regulation No 659/1999, which takes up in substance the definition previously developed in the Court’s case-law, (35) defines an ‘interested party’ as ‘any person, undertaking or association of undertakings whose interests might be affected by the granting of aid, in particular the beneficiary of the aid, competing undertakings and trade associations.’

66.      According to settled case-law, that definition does not rule out that an undertaking which is not a direct competitor of the beneficiary of the aid can be categorised as an interested party, provided that it demonstrates that its interests could be adversely affected by the grant of the aid. (36) While an undertaking in competition with the beneficiary of an aid measure is indisputably an ‘interested party’ for the purposes of Article 108(2) TFEU, (37) an undertaking that is not a competitor of the beneficiary of the aid can be categorised as an ‘interested party’ if it can demonstrate that its interests could be adversely affected by the grant of the aid, which, according to the case-law, means demonstrating that the measure is likely to have a specific effect on its situation. (38)

67.      Accordingly, the Court has, for example, recognised as an interested party an undertaking which was not a direct competitor of the beneficiary of the aid but which required the same raw material for its production process, where that undertaking had demonstrated that its interests could be adversely affected by the grant of the aid and had established to the requisite legal standard that the aid was likely to have a specific effect on its situation. (39)

68.      In the present case I consider that, although the appellants’ arguments which I mentioned in point 57 of this Opinion do not demonstrate the existence of a direct competitive relationship with Femern Landanlæg, they do establish to the requisite legal standard both that their interests could be adversely affected by the grant of the measures in favour of Femern Landanlæg and the specific effect of those measures on their situation. In my view, those arguments therefore justify the recognition of their status as interested parties.

69.      It follows from those considerations that, in my view, the appellants, as interested parties, have standing to bring proceedings challenging the part of the decision at issue that relates to the measures adopted in favour of Femern Landanlæg in so far as their actions are aimed at safeguarding the procedural rights available to them under Article 108(2) TFEU. They do not, on the other hand, have standing to bring proceedings to contest the merits of that part of the decision at issue. As I shall explain further, I will take those conclusions into account in my analysis of the main appeals.

B.      The first two grounds of the main appeals

1.      Preliminary observations

70.      By their first two grounds of appeal, the appellants – supported by NABU, FSS, Rederi, Trelleborg and Aktionsbündnis – submit that the judgments under appeal are vitiated by errors of law, in breach of Article 107(1) and Article 108(2) TFEU, in that the General Court concluded that the Commission had not erred and had not encountered serious difficulties in reaching the view that the measures granted to Femern Landanlæg were not liable to distort competition or to affect trade between Member States and therefore did not constitute State aid.

71.      As a preliminary remark, I would point out, first of all, that it is clear from settled case-law that, for the purposes of categorising a national measure as ‘State aid’, it is necessary, not to establish that the aid has a real effect on trade between Member States and that competition is actually being distorted, but only to examine whether the aid is liable to affect such trade and distort competition. (40)

72.      Secondly, it follows from my analysis in points 49 to 69 above that the appellants have standing to challenge the part of the decision at issue that relates to the measures adopted in favour of Femern Landanlæg only to the extent that they seek, by their actions, to safeguard the procedural rights available to them under Article 108(2) TFEU, and not, on the other hand, to challenge the merits of that part of the decision at issue.

73.      In the present case, however, as I made clear in point 55 above, the General Court did not address the question of the admissibility of the actions and dealt with the pleas relating to infringement of procedural rights and the pleas relating to the merits of the part of the decision at issue in question together. It follows from that decision on the General Court’s part that, by their appeals, the appellants take issue with the General Court’s analysis with regard to both those aspects.

74.      It must be observed in that connection that, according to the case-law, where an applicant seeks the annulment of a decision not to raise objections, it essentially contests the fact that the Commission adopted the decision in relation to the aid at issue without initiating the formal investigation procedure, which thereby acted in breach of its procedural rights. In order to have its action for annulment upheld, the applicant may put forward any plea to show that the assessment of the information and evidence which the Commission had at its disposal during the preliminary examination of the notified measure should have raised doubts about whether that measure constituted aid and about the compatibility of that measure with the internal market. The use of such arguments does not, however, bring about a change in the subject matter of the action or in the conditions for its admissibility. On the contrary, the existence of doubts about the classification of the measure and about its compatibility is precisely the evidence which must be adduced in order to show that the Commission was required to initiate the formal investigation procedure under Article 108(2) TFUE. (41)

75.      The Court has also made clear that the lawfulness of a decision not to raise objections depends on the question whether the assessment of the information and evidence which the Commission had at its disposal during the preliminary examination of the notified measure should objectively have raised doubts as to the compatibility of that measure with the internal market, given that such doubts must lead to the initiation of a formal investigation procedure in which the interested parties referred to in Article 1(h) of Regulation No 659/1999 may participate. The same principles apply where the Commission entertains doubts as to the actual classification of the measure under examination as aid, within the meaning of Article 107(1) TFEU. (42)

76.      As the criterion of serious difficulties is objective in nature, the existence of difficulties of that kind must be looked for not only in the circumstances in which the Commission’s decision was adopted after the preliminary examination but also in the assessments upon which the Commission relied. (43)

77.      It follows from all of the foregoing that, in light of the conclusion which I set out in points 69 and 72 above, the first two grounds of the main appeals, by which the appellants argue, inter alia, that the General Court erred in law in connection with the infringement of the procedural rights available to them under Article 108(2) TFEU, must be examined only to the extent of that particular argument. The arguments by which the appellants call into question the General Court’s analysis of the merits of the part of the decision at issue in question are, on the other hand, inadmissible. In light of the case-law I mentioned in points 74 to 76 above, however, the General Court’s examination of the assessments on which the Commission based the decision at issue may, and indeed must, be reviewed with the objective in mind of determining whether the Commission’s assessments justified the conclusion that there were no serious difficulties regarding the issue of the classification of the measures under consideration as State aid within the meaning of Article 107(1) TFEU.

2.      The first ground of appeal, alleging errors of law in the General Court’s analysis of whether the measures granted to Femern Landanlæg are liable to distort competition

78.      The first ground of appeal raised by the appellants is directed against paragraphs 87 to 127 of the first judgment under appeal and paragraphs 62 to 102 of the second judgment under appeal respectively. The ground of appeal consist in four sub-pleas, relating to four alleged errors of law on the General Court’s part.

(a)    The first sub-plea in the first ground of appeal, concerning the integrated nature of the project

(1)    Summary of the arguments of the parties

79.      By the first sub-plea in their first ground of appeal, the appellants, seconded by the interveners supporting them, take issue with the parts of the judgments under appeal (44) in which the General Court rejected their argument that, since the fixed link and the hinterland connections constitute one integrated project, and since the Commission concluded that the measures granted to Femern for the fixed link were liable to distort competition, then the measures granted to Femern Landanlæg for the hinterland rail connections should also have been deemed liable to distort competition.

80.      The appellants rely on the judgment of 16 May 2013, Commission v Ryanair (C‑615/11 P, not published, EU:C:2013:310), (45) and argue that the General Court’s premiss that Femern Landanlæg’s activities are limited to the management of the hinterland connections and do not include the provision of transport services across Fehmarn Belt was based on an incorrect legal characterisation of the facts. They argue that it is evident from the nature and objectives of the project that the fixed link and the hinterland connections form part of one integrated project and that the hinterland connections are to be built for the purpose of providing transport services across Fehmarn Belt. From a financial point of view, it is undisputed that the fixed link tolls will also cover the costs of the hinterland connections, since Femern will be required to pay dividends to Femern Landanlæg. From a practical point of view, the fixed link is dependent on the hinterland connections, without which Femern would not be able to provide transport services. In addition, the hinterland connections themselves would not exist were it not for the fixed link. The measures adopted for the hinterland connections are, therefore, measures necessary for the fixed link. It follows, according to the appellants, that, if the measures granted to Femern are liable to distort competition, then the measures granted to Femern Landanlæg are also liable to distort competition. Moreover, the General Court made a manifest error in finding that the two sets of measures had different purposes. (46) They both in fact have the same objective of enabling Femern to provide transport services across Fehmarn Belt.

81.      NABU, FSS and Aktionsbündnis add that it is unlawful artificially to split a single project into several parts in order to shield it from a coherent assessment of it as State aid. NABU also states that the fixed link and the hinterland connections must be regarded as a single project not only on account of their economic characteristics, but also on account of their environmental characteristics. Rederi and Aktionsbündnis contend that the hinterland rail connections are essential infrastructure if a rail transport service across Fehmarn Belt is to be possible and that their construction helps strengthen Femern’s competitive position. It follows that the measures granted to Femern Landanlæg obviously have an effect on the market for transport services across Fehmarn Belt.

82.      The Commission maintains that the arguments put forward in the first sub-plea in the first ground of appeal are inadmissible because, contrary to the provisions of Article 169(2) of the Rules of Procedure, the appellants have not identified the points in the judgments under appeal in which the General Court made incorrect findings. In addition, the Commission disputes the merits of the arguments put forward by the appellants and by the interveners supporting them.

83.      The Kingdom of Denmark maintains that the present sub-plea is inadmissible because, first of all, it does no more than repeat a plea that has already been rejected by the General Court and, secondly, it calls into question the General Court’s findings of fact, without explaining how those facts have been distorted. Moreover, the Kingdom of Denmark disputes the merits of the arguments put forward by the appellants and by the interveners supporting them.

(2)    Assessment

84.      By their first sub-plea in their first ground of appeal, the appellants contest the General Court’s rejection, in the judgments under appeal, of their arguments regarding the integrated nature of the project. In substance, they maintained before the General Court that, because of the integrated nature of the project, the finding that the measures adopted in favour of Femern for the fixed link are liable to distort competition results, by a sort of ‘spill-over effect’, (47) in the measures adopted in favour of Femern Landanlæg for the hinterland rail connections also being liable to distort competition, in particular in so far as concerns transport services across Fehmarn Belt.

85.      It should be recalled that the General Court answered this argument in the judgments under appeal by stating that it could not be concluded that the measures granted to Femern Landanlæg in relation to the hinterland rail connections constituted State aid for the sole reason that they had been adopted in connection with the same project as that for which measures were granted to Femern in relation to the fixed link, and that the latter measures had been categorised as State aid. According to the General Court, these are two separate sets of measures which, while concerning the same project, have different purposes and different beneficiaries. (48)

86.      I must address at the outset the arguments by which the Commission and the Kingdom of Denmark, respectively, dispute the admissibility of the arguments made in the present sub-plea on the grounds that the appellants have omitted to identify the relevant points in the judgments under appeal and have simply repeated arguments already rejected by the General Court.

87.      First of all, I do not share the Commission’s view that the requirements set out in Article 169(2) of the Rules of Procedure have not been satisfied. In their first sub-plea in their first ground of appeal the appellants expressly indicate the points of the judgments under appeal that they seek to contest by their arguments (49) and there can be no doubt that those arguments seek to call into question the General Court’s reasoning in those points of the judgments.

88.      Secondly, I would observe that, while it is admittedly settled case-law that a ground of appeal which merely reproduces the pleas in law and arguments previously submitted to the General Court is inadmissible, (50) in the sub-plea in question, contrary to what the Kingdom of Denmark maintains, the appellants do not confine themselves to simply reiterating an argument raised at first instance, but take issue with the reasoning by which the General Court rejected that argument in the judgments under appeal and with the way in which the General Court applied EU law. I would observe, in that connection, that according to the settled case-law of the Court of Justice, the points of law examined at first instance may be discussed again in the course of an appeal because, if a party could not base its appeal on pleas in law and arguments already relied on before the General Court, the appeal procedure would be deprived of part of its purpose. (51)

89.      As to the substance, the appellants maintain that the General Court’s reasoning in the judgments under appeal is based on an incorrect legal characterisation of the facts in so far as concerns the extent of Femern Landanlæg’s activities.

90.      On that point, first of all, I do not consider pertinent the reference to paragraph 32 of the judgment of 16 May 2013, Commission v Ryanair (C‑615/11 P, not published, EU:C:2013:310), which concerns legal provisions that are not relevant in the present cases and contains the finding that the General Court did not err in its legal characterisation of a letter. In any event, that reference is incapable of bearing out any of the appellants’ arguments.

91.      Secondly, I consider that, to the extent that the appellants’ argument is to be understood as directed against the General Court’s finding that Femern Landanlæg’s activities are confined to the market for the operation and management of railway infrastructure, in so far as the hinterland rail connections are concerned, and do not extend to the supply of transport services on Fehmarn Belt, then even assuming that the General Court did rely on a finding of that sort – which is not, in my view, apparent from the contested points of the judgments under appeal – that argument should, in my view, be considered inadmissible. Indeed, by that argument, the appellants in essence ask the Court of Justice to call into question findings of fact and factual appraisals made by the General Court – specifically regarding the extent of Femern Landanlæg’s activities – without, however, alleging any material inaccuracy regarding the facts that is evident from the procedural documents, or any distortion of the facts. It is settled case-law that that is not possible in the context of an appeal. (52)

92.      Moreover, the arguments which the appellants raise regarding the integrated nature of the project and the identity of purpose of the measures adopted in favour of Femern and those in favour of Femern Landanlæg, are incapable of bearing out the assertion that the General Court relied on an incorrect legal characterisation of the facts concerning the extent of Femern Landanlæg’s activities. Indeed, neither the integrated nature of the project, from a financial and practical point of view, nor the possible identity of purpose of the measures adopted in favour of Femern and those in favour of Femern Landanlæg in any way implies that the latter’s activities extend to the supply of transport services across Fehmarn Belt.

93.      Thirdly, even assuming, with some effort of interpretation, that the argument which the appellants put forward in the first sub-plea is to be understood in the sense that they allege an error of law, in that the General Court failed to acknowledge the ‘spill-over effect’ resulting from the project’s integrated nature and consequently failed to find that, just as the measures adopted in favour of Femern were liable to distort competition on the market for transport services across Fehmarn Belt, so too must be the measures granted to Femern Landanlæg, I do not consider that that argument can be upheld.

94.      Indeed, as may be gleaned from point 85 above, the General Court answered that argument in the judgments under appeal, without, in my view, making any error of law, in the sense that, since the measures adopted in favour of Femern and those in favour of Femern Landanlæg, while concerning the same project, are two separate sets of measures with different beneficiaries, purposes and objectives, the finding that one of those sets of measures is State aid could not automatically – or to use the General Court’s words, ‘for [that] sole reason’ – cause the other set of measures also to be aid.

95.      I should point out in that connection that the appellants do not dispute the fact that the Commission, and consequently the General Court also, treated the measures as two separate sets of measures, albeit concerning a single project. Neither in their actions before the General Court, nor in their appeals before the Court of Justice have the appellants argued that the measures in question ought to have been examined together or that they resulted in single instance of State aid that should have been the subject of a single analysis. Nor do they dispute the General Court’s finding that the beneficiaries, whose connection has nevertheless been established, are different. (53)

96.      It is only FSS and NABU that argue (the latter less explicitly) in their responses before the Court of Justice that the project should have been examined as a whole, rather than being artificially split into two parts. However, I would observe that neither of those two interveners raised that argument before the General Court. Moreover, before the General Court, neither the appellants nor the interveners clearly and expressly alleged any error due to the failure to take into consideration the effects on competition in the market for transport services across Fehmarn Belt of the measures granted to Femern Landanlæg as such. (54)

97.      In that regard, it must be borne in mind that, according to settled case-law, the jurisdiction of the Court of Justice is, in principle, confined to review of the findings of law on the pleas argued before the General Court. (55) It is, therefore, not possible to criticise the General Court for having erred in law by not considering arguments that were not raised before it by the parties. New arguments that were not submitted to the General Court must, therefore, be declared inadmissible in any appeal. (56)

98.      Before the General Court, the appellants referred to the integrated nature of the project solely and exclusively to support their argument concerning a sort of ‘automatic spill-over effect’, which is to say that, since the measures adopted in favour of Femern are liable to have an effect on competition in the market for transport services across Fehmarn Belt, so too would the other measures adopted in the framework of the same project – those in favour of Femern Landanlæg – be liable to have such an effect. (57) As I mentioned in point 94 above, the General Court answered that argument, I believe, without making an error of law. Indeed, it cannot be inferred from the mere fact that two different measures having different beneficiaries and purposes (58) are adopted in the context of the same project, and that one of them is State aid, that both will automatically constitute State aid.

99.      Next, in so far as concerns the appellants’ arguments concerning the objective of the project and of the measures adopted in favour of Femern and Femern Landanlæg in that context, I would add – merely for the sake of completeness and without wishing to express a position on points of fact that are not within the jurisdiction of the Court of Justice in appellate proceedings – that, while the objective of the project as a whole is, without question, to improve the conditions for the transportation of passengers and goods between Nordic countries and central Europe, (59) it is nevertheless not disputed that, as the Kingdom of Denmark points out, the hinterland rail connections will be used for regional rail transport independently of the use of the fixed link. It follows from this that the objective of the measures adopted in favour of Femern Landanlæg, while partly coinciding with the objective of the measures adopted in favour of Femern, to the extent that the creation of the hinterland connections will make it possible to use the fixed link, nevertheless has its own specific aspects. It follows that the General Court did not err in holding that the purposes of the two sets of measures are different.

100. In light of all the foregoing considerations, I consider that the first sub-plea in the first ground of appeal in the main appeals should be rejected.

(b)    The second and third sub-pleas in the first ground of appeal, concerning the contention that the market for the operation and management of railway infrastructure in Denmark is de lege and de facto open to competition

(1)    Summary of the arguments of the parties

101. In the second and third sub-pleas in the first ground of appeal in the main appeals, the appellants, seconded by the interveners supporting them, take issue with the parts of the judgments under appeal in which the General Court dismissed their complaint that the Commission erred in concluding that there is no competition ‘on’ or ‘for’ the national railway network market in Denmark. According to the appellants, in fact, the market for the operation and management of railway infrastructure in Denmark is de lege and de factoopen to competition. (60)

102. By the second sub-plea of their first ground of appeal, the appellants maintain that the General Court erred in concluding that the fact that Danish railway law (61) enables any undertaking which meets certain conditions to obtain a licence to operate, manage and maintain railway infrastructure in Denmark does not mean that the market for the operation and management of the railway infrastructure is open to competition. (62) According to the appellants, the fact that it is possible to obtain such a licence demonstrates that, in Denmark, the market for the operation and management of railway infrastructure is de lege open to competition, at least in the sense of competition ‘for’ the market. In that regard, what matters is that it is possible for an undertaking to construct its own infrastructure and to manage it itself, or to provide services on existing infrastructure, including State-owned infrastructure.

103. That approach is, according to the appellants, in line with the position expressed by the Commission itself, which is that, in EU law, the market for the operation and management of railway infrastructure may be regarded as closed to competition only if those activities are subject to a legal monopoly which excludes not only competition ‘on’ the market, but also competition ‘for’ the market. (63)

104. That is not, however, the case in Denmark. Indeed, in Denmark, no undertaking has been granted the exclusive right or a legal monopoly to operate and manage railway infrastructure. On the contrary, the 2010 Railway Act provides for the licensing system mentioned, which expressly permits any undertaking to carry on railway network operation and management activities, provided that they satisfy certain safety requirements. That licensing system ensures that competing undertakings may compete for themselves, since they may become natural monopolies themselves by constructing infrastructure. Thus, an undertaking other than Femern Landanlæg could have been selected to receive the funding to construct the hinterland rail connections. The licensing system also shows that competing undertakings can operate on the natural monopolies of other undertakings. That could be the case if, for example, Femern Landanlæg or Banedanmark were to outsource the construction and management of the infrastructure for the hinterland rail connections.

105. Moreover, according to the appellants, it is clear from the judgments of 19 December 2019, Arriva Italia and Others (C‑385/18, EU:C:2019:1121, ‘Arriva Italia’), and of 29 July 2019, Azienda Napoletana Mobilità (C‑659/17, EU:C:2019:633, ‘Azienda Napoletana Mobilità’), that the Court has held that the direct grant of exclusive rights does not exclude competition for the market specifically where the State is not prevented from launching procurement procedures for the operation and management of railway networks.

106. As in other economic sectors that rely on the use of network infrastructure, such as the telecommunications, electricity and gas sectors, in which the market is opened to competition by the mere fact of allowing operators to provide services on parts of the network infrastructure, so too should the market for the management of railway infrastructure in Denmark be regarded as open to competition, within the meaning of EU law, at least in the sense of competition ‘for’ the market, since the Danish legal framework for the management of railway infrastructure provides the conditions under which undertakings may operate and manage existing railway networks (including the State-owned network).

107. For the same reasons, the General Court erred in its conclusion that undertakings other than Banedanmark that have obtained licences operate on local sections of the railway network which form a kind of natural monopoly. (64) In addition, the reasoning in the judgments under appeal concerning operators established in other Member States which are in possession of a licence (65) and concerning the optional nature of liberalisation of the railway sector (66) are not pertinent, since the Danish licensing system shows that the market has been liberalised and is open to competition.

108. In the third sub-plea in the first ground of appeal, the appellants maintain that the General Court erred in law in holding that the market for the operation and management of railway infrastructure in Denmark is not de factoopen to competition. The General Court failed to take account in its reasoning of the fundamental point that, in the absence of a legal monopoly and given the existence of a licensing system that allows any undertaking to manage railway infrastructure, it is irrelevant where the infrastructure is located and who owns it. The existence of competitors on some parts of the railway network, which is recognised in the judgments under appeal, is ultimate proof that the market is open to competition also in practice. While some network owners may choose to manage parts of the network themselves, that does not alter the fact that the market is open to competition, particularly since undertakings may compete to become the holder of a natural monopoly by themselves constructing the network.

109. Lastly, the appellants, seconded on this point by some of the interveners supporting them, argue that, in any event, even supposing the measures adopted in favour of Femern Landanlæg are not liable to distort competition on the market for the operation and management of railway infrastructure, there can be no doubt that those measures distort competition on the upstream market (the market for the supply of materials for constructing railway infrastructure) and the downstream market (the market for the provision of rail services in Denmark).

110. NABU, FSS, Rederi, Trelleborg and Aktionsbündnis raise arguments similar to those put forward by the appellants.

111. In particular, NABU argues that, in EU law, in order for a market to be treated as closed to competition, there must be a legal prohibition on any other operator’s competing on the market in question, and no such prohibition exists in Denmark. To similar effect, Rederi, Aktionsbündnis and Trelleborg note that the Commission itself has stated that a legal monopoly exists only where a particular service is reserved by law or regulation to a single provider and where the provision of that service by other operators is prohibited. (67) Rederi and Aktionsbündnis maintain that, in the present case, the right conferred on Banedanmark in relation to the operation and management of railway infrastructure is not an exclusive right, as is demonstrated by the fact that other rail operators, both Danish and foreign, have been authorised to manage railway infrastructure, there being no legal prohibition on the management of railway infrastructure in Denmark. Rederi adds that, even if that right were exclusive, quod non, Danish law in no way excludes competition ‘for’ the market, inasmuch as any undertaking licensed in Denmark may participate in procurement procedures and compete for the operation and management of railway infrastructure, both State-owned and private.

112. In addition, Rederi and Trelleborg argue that the General Court’s conclusion that the fact that some local railway networks are in private hands does not demonstrate the existence of competition amounts to stating that the market could be open to competition only if undertakings manage in competition with one another the railway infrastructure that is owned by the State. That is not correct, however, given that the infrastructure at issue is not owned by the State but by Femern Landanlæg and given that the part of the railway network owned by the State is wholly integrated with municipal and private networks. Moreover, both Rederi and Trelleborg contend that the General Court failed to take potential competition into account.

113. At the hearing, Rederi argued that, even though Danish law assigns to one operator (Banedanmark) the management of a part of the railway infrastructure, it cannot be held that, in Denmark, the market for the operation and management of railway infrastructure has been monopolised. For one thing, it is clear from the case-law that a monopoly over only a part of the market is not sufficient to exclude distortion of competition. (68) For another, in Denmark, various undertakings may offer, and do in fact offer such services on the market. To that point, Trelleborg adds that, because of the integrated nature of the railway networks, it is sufficient that only a part of the network is open to competition in order for the whole network to be regarded as open to competition.

114. FSS argues that the fact that it is possible for any Danish or foreign operator to obtain a licence automatically means that competition exists ‘for’ the market, inasmuch as any interested operator has been authorised by law to tender for the operation and management of the hinterland rail connections, together with the attendant financial measures. Consequently, even if individual railway infrastructures have the characteristics of a natural monopoly, that does not mean that infrastructure operators cannot compete ‘for’ the market. FSS also argues that the financing of the hinterland rail connections will have a major impact on the competitiveness of rail transport, to the detriment of other modes of transport, such as road transport, air transport and maritime transport.

115. The Commission argues, as a preliminary point, that the arguments made in the second sub-plea of the first ground of appeal are inadmissible. The judgments under appeal do not, in fact, contain any finding that the market for the operation and management of railway infrastructure in Denmark is not de lege open to competition. Any plea directed against such a finding is therefore inadmissible. The Commission also considers that, as with the first sub-plea, the third sub-plea in the first ground of appeal should be declared inadmissible because it fails to satisfy the requirements of Article 169(2) of the Rules of Procedure, which I mentioned in point 82 above. As to the remainder, the Commission disputes the merits of the arguments put forward by the appellants and by the interveners supporting them.

116. The Kingdom of Denmark contends that both the second and third sub-pleas in the first ground of appeal are inadmissible because they do no more than repeat arguments put to the General Court at first instance. As to the remainder, the Danish Government disputes the merits of the arguments put forward by the appellants and by the interveners supporting them.

(2)    Assessment

117. In the second and third sub-pleas of the first ground of appeal, the appellants, seconded by the interveners supporting them, take issue with the parts of the judgments under appeal in which the General Court rejected the arguments by which they sought to demonstrate that the market for the operation and management of railway infrastructure in Denmark is de lege and de factoopen to competition.

(i)    Brief outline of the General Court’s reasoning

118. It must be recalled that, in the judgments under appeal, the General Court first of all held that the provisions of the Danish law on which the appellants relied (69) do not mean that the operation and management of railway infrastructure is open to competition, and that the possibility of obtaining a licence to manage railway infrastructure does not mean that there is competition ‘on’ or ‘for’ the market for the operation and management of the Danish national railway network, including the hinterland rail connections. (70) According to the General Court, the fact that some companies that have obtained such a licence may operate on sections of the railway network which form a kind of natural monopoly, separate from the national railway network, is not sufficient to show that the latter, which is managed by Banedanmark under a statutory monopoly, is open to competition. According to the General Court, the same applies with regard to the hinterland rail connections, which involve the expansion and upgrading of the existing infrastructure held by Banedanmark and which, following completion of the project, will be jointly owned by Banedanmark and Femern Landanlæg (71) and will continue to form an integral part of the existing national network. (72)

119. Secondly, the General Court held that the existence of local networks – which are natural monopolies separate from the national railway infrastructure, including the hinterland rail connections – that are managed by operators other than Banedanmark does not show that the hinterland rail connections are, like such local networks, also operated as a result of competitive tendering procedures or that Femern Landanlæg is active on markets open to competition. (73)

(ii) Admissibility and the General Court’s findings of fact

120. Before analysing the merits of the objections raised by the appellants and the interveners with regard to the General Court’s reasoning, it is necessary to dismiss the objections of inadmissibility raised by the Commission and the Kingdom of Denmark. In that connection, I refer to what I said in points 87 and 88 above and consider that, for the same reasons, the second and third sub-pleas in the first ground of appeal also satisfy the requirements of Article 169(2) of the Rules of Procedure and do not merely repeat arguments raised at first instance.

121. As regards the objection of inadmissibility by which the Commission argues that the judgments under appeal contain no finding that the market for the operation and management of railway infrastructure in Denmark has not been opened de lege to competition, that too should, in my view, be dismissed. Indeed, although it is true that the General Court did not expressly make such a finding in the judgments under appeal, there can be no question that it did reject the arguments by which the appellants asserted that the market in question had been opened de lege to competition, as is clear moreover from the heading given to section 2, above paragraph 108 of the first judgment under appeal and above paragraph 83 of the second judgment under appeal. By the second sub-plea in their first ground of appeal, the appellants take issue, on appeal, with the General Court’s reasoning in this section of the judgments under appeal. It follows that the second sub-plea is admissible.

122. Still concerning admissibility, it should next be recalled that, as I noted in point 91 above, it is settled case-law that, where the General Court has determined or assessed the facts, the Court of Justice has jurisdiction under Article 256 TFEU solely to review the legal characterisation of those facts and the legal conclusions that have been drawn from them. The appraisal of the facts, like the General Court’s assessments of national law, does not therefore constitute, save where the clear sense of the evidence produced before the General Court has been distorted, a question of law which is subject, as such, to review by the Court of Justice. (74)

123. In its settled case-law, the Court of Justice has inferred from this that, in the case of an interpretation of national law by the General Court, it has jurisdiction, in an appeal, only to determine whether that law was distorted, and the distortion must be obvious from the documents in the case file. (75)

124. In that regard, I would observe that, in the judgments under appeal, the General Court made a series of factual findings on which it based the conclusions it reached and, in accordance with the case-law mentioned in the two preceding points, these cannot be called into question in an appeal.

125. In the first place, the General Court made the factual finding that, in Denmark, a statutory monopoly has been granted to Banedanmark with regard to the State national railway infrastructure (76) and that, pursuant to Danish railway law, (77) Banedanmark is responsible for the management of the State railway infrastructure and of the hinterland rail connections. (78)

126. In the second place, the General Court made the factual finding that the line between Ringsted and Rødby, (79) already owned by Banedanmark, on which the expansion and upgrading works are to be carried out, forms and will continue to form an integral part of the existing national network and will continue to be managed by Banedanmark in accordance with the rules applicable to the entire national rail network. (80)

127. In the third place, in paragraph 109 et seq. of the first judgment under appeal and paragraph 84 et seq. of the second judgment under appeal, the General Court provided an interpretation of the provisions of the 2010 Railway Act governing authorisation to operate and manage railway infrastructure. (81)

128. It is, therefore, those findings of fact that must be taken into account when examining whether the complaints and arguments raised by the appellants and by the interveners supporting them call into question the reasoning of the General Court in the judgments under appeal with which they take issue.

129. It must first of all be noted in that regard that the arguments put forward by the appellants are to a large extent based on the premiss, expressly repeated on numerous occasions in their written pleadings, that there is no statutory monopoly in Denmark in relation to railway infrastructure considered generally. However, in light of the case-law mentioned in points 122 and 123 above, it is clear that, in so far as the State railway infrastructure is concerned, that premiss is inconsistent with the General Court’s finding of fact which I mentioned in point 125 above, and consequently the arguments which are based on that premiss should be rejected as inadmissible.

130. It should also be noted in that connection that, in their appeals, the appellants have in no way argued any distortion of the facts by the General Court with regard to that point. They have made no complaint the aim of which would be to show that the General Court distorted Danish law by finding in the judgments under appeal that a statutory monopoly over national railway infrastructure exists for the benefit of Banedanmark. (82)

131. In their replies, the appellants have clarified the scope of the complaints they have raised with regard to the General Court’s interpretation of Danish law. The aim of those complaints is to demonstrate an error in the General Court’s legal characterisation of the consequences of the findings of fact (that is to say, the General Court’s interpretation of national law). Leaving aside the consideration that a complaint of that kind amounts, in my view, to calling into question the General Court’s interpretation of national law and is therefore, as I have said, inadmissible, I consider, in any event, that the General Court did not err in law in its characterisation (which is similar to that of the Commission in the decision at issue) of the legal consequences which flow from the existence of Banedanmark’s statutory monopoly over national railway infrastructure. Indeed, it follows from the existence of that statutory monopoly that the activities of operating and managing the State railway infrastructure cannot be regarded as open, either de lege or de facto, to competition, inasmuch as, on account of the monopoly’s existence, no operator other than Banedanmark can legally offer the services of operating and managing that railway infrastructure.

132. Next, as regards the finding of fact mentioned in point 126 above, which is that the hinterland rail connections form part of the national rail network, I note that, in their appeals, the appellants confine themselves to stating that the points they make regarding the de lege opening of the market for the operation and management of rail infrastructure also address that issue. (83) However, they have not developed any specific argument on the matter, still less have they argued distortion of the facts. A complaint of that kind, unaccompanied by any exposition, even in summary form, of supporting arguments is, in my view, inadmissible. It is also inadmissible for the reason that it is levelled against findings of fact made by the General Court.

133. Lastly, it must be observed that the complaints by which the appellants and some interveners contend that the measures adopted in favour of Femern Landanlæg are, in any event, liable to distort competition on the markets upstream and downstream from the market for the operation and management of rail infrastructure were not made before the General Court. They are, therefore, new arguments which, in accordance with the case-law mentioned in point 97 above, are inadmissible in an appeal. For the same reasons I consider to be inadmissible FSS’s argument regarding the impact of the financing of the hinterland rail connections on the competitiveness of rail transport, to the detriment of other modes of transport.

(iii) Merits

134. As regards the merits, it is appropriate, first of all, to address some of the arguments relating to the General Court’s finding that there is a statutory monopoly for the benefit of Banedanmark, which are admissible in that they raise questions of law.

135. I refer, in the first place, to the arguments by which the appellants and some of the interveners supporting them allege an error on the General Court’s part inasmuch as, in their view, under EU law, a statutory monopoly may be found to exist only where a particular service is reserved by law or regulation to a single provider and where the provision of that service by other operators is expressly prohibited, which is not the case in Denmark, where no such prohibition exists. In support of their arguments, the appellants and the interveners I have mentioned refer to paragraph 188 of the Commission Notice on State aid and the Commission document entitled ‘Infrastructure Analytical Grid for Railway, Metro and Local Transport Infrastructure’. (84)

136. I must immediately observe that, as is clear from the case-law, the two documents cited are in no way binding on the Court in its interpretation of EU law. (85)

137. Next, I consider that the analysis of the existence in a given market of a statutory monopoly within the meaning of EU law must be carried out on a case-by-case basis, with account being taken of the market in question and its specific features and of the relevant national legal framework.

138. In the present case, as I noted in points 125 and 126 above, the General Court found that, under Danish law, Banedanmark is responsible for the management of the national railway infrastructure, of which the hinterland rail connections form a part and will continue to form a part. It follows from that finding that, unless the Kingdom of Denmark decides to amend its legislation and to open to competition, by the launching of procurement procedures, the tasks currently conferred on Banedanmark, no operator other than Banedanmark may offer or provide the services of operation and management of the national railway infrastructure. It follows that, in so far as that infrastructure is concerned, there is, by law, no competition either ‘on’ or ‘for’ that market. In addition, it is common ground that, as the General Court pointed out moreover, EU law has not required the Member States to open up the operation and management of such infrastructure to competition. (86) I consider that, in a situation of this kind, the General Court cannot be accused of having infringed EU law by finding a statutory monopoly to exist, one which excludes the possibility of competition for the activities of operation and management of the national railway infrastructure in Denmark.

139. In the second place, it is necessary to address the argument by which the appellants seek to show that the judgments under appeal conflict with the precedents established by the Court in its judgments in Arriva Italia and Azienda Napoletana Mobilità. (87)

140. I would point out in that connection that the judgment in Arriva Italia concerned a reference for a preliminary ruling by which the Consiglio di Stato (Italian Council of State) asked the Court of Justice, inter alia, whether the allocation of a sum of money to a public railway undertaking which was in serious financial difficulty and which, under a contract with the Region of Apulia, enjoyed the exclusive right to operate and maintain local railway infrastructure and to provide public passenger transport services on that infrastructure constituted State aid within the meaning of Article 107(1) TFEU. (88)

141. In so far as concerns the condition of the liability of the measure in question to distort the conditions of competition, it was argued before the Court that the award of such tasks to the undertaking in question was subject to a legal monopoly under Italian law such as to exclude any competition on the relevant market. (89) The Court, referring to paragraph 188(b) of the Commission Notice on State aid, nevertheless rejected that argument.

142. The Court held, in that regard, that it was necessary, for such a distortion to be able to be excluded in such circumstances, that the legal monopoly should exclude competition not only on the market, but also for the market, in that it excludes any possible competition to become the exclusive provider of the service in question. (90) It then held that, in order to establish that this was a market for which competition was excluded, it would be necessary to show that the Apulia Region was required, by legislative or regulatory measures, to award the operation of the railway infrastructure in question and the provision of public railway transport services for passengers exclusively to the undertaking in question, which did not appear to be the case from the documents before the Court. (91)

143. In the present case, however, it must be observed that the hinterland rail connections are railway infrastructure which, as the General Court established as fact and as I mentioned in point 126 of this Opinion, was, prior to implementation of the project, already part of the national railway infrastructure managed by Banedanmark on the basis of its statutory monopoly and which, after implementation of the project, would continue to form part of that infrastructure. Given those circumstances, by contrast with the situation in Arriva Italia, it is therefore apparent that, in the present case, the award to an operator other than Banedanmark of the management of the railway infrastructure in question is precluded by law.

144. The present case differs in a similar way from the case which was analysed in the judgment in Azienda Napoletana Mobilità, which concerned the management of local public transport services.

145. As regards, in the third place, Rederi’s submission that the conferral of a statutory monopoly over only part of the railway infrastructure, in circumstances where various undertakings may offer, and do in fact offer services of railway infrastructure operation and management, is not sufficient in order for the market to be regarded as being subject to a monopoly and competition therefore excluded, that argument cannot, in my view, be upheld. Indeed, as the General Court pointed out, moreover, in the judgments under appeal, (92) the various railway networks on which the undertakings in question that hold licences in Denmark operate are separate from the national railway infrastructure and constitute natural, self-standing monopolies, regardless of the fact, to which Trelleborg has pointed, that those networks are connected to the State railway infrastructure. Accordingly, the fact that undertakings exist which provide the services of operating and managing such infrastructure in no way means that the activity of national railway network operation and management is open to competition or that measures for financing such infrastructure are consequently liable to distort competition.

146. Thus, while it is true that the judgment of 23 January 2019, Fallimento Traghetti del Mediterraneo (C‑387/17, EU:C:2019:51) holds that State aid may be liable to threaten to distort competition even though the market concerned is only partially open to competition, (93) that principle does not apply in the present case. I would point out, moreover, that that judgment did not concern the railway sector or any other economic sector in which reliance is placed on network infrastructure; it concerned a case in which subsidies had been granted prior to the liberalisation of a market that had initially been closed to competition.

147. As regards, in the fourth place, the various arguments made by the appellants and by the interveners supporting them to the effect that the licensing system provided for in Danish law demonstrates that, in Denmark, the market for the operation and management of railway infrastructure is de lege open to competition, at least in so far as concerns competition ‘for’ the market, those arguments are all based on the premiss that no statutory monopoly exists in favour of Banedanmark over the national railway network, including the hinterland rail connections. That premiss is inconsistent with the General Court’s finding of fact which I mentioned in point 125 above.

148. In particular, the argument that, in view of the licensing system, it is not impossible for undertakings to construct their own infrastructure and to become the holders of natural monopolies or to manage the infrastructure of others on a competitive basis, that disregards the fact that the hinterland rail connections already existed and were a part, and will continue to be a part of the State’s national railway network, over which Banedanmark exercises the statutory monopoly in question, and that the works relating to the hinterland rail connections, notwithstanding their very significant scale, concerned the expansion and upgrading of lines already in existence and already subject to the existing statutory monopoly held by Banedanmark. The existence of that monopoly, established as fact by the General Court, thus precludes the possibility of those lines being operated and managed by other undertakings.

149. Furthermore, the argument that any undertaking holding a licence in Denmark may participate in procurement procedures and compete for the operation and management of State-owned railway infrastructure is wholly unsubstantiated. Equally, there is no substantiation of the assertion that, by virtue of the licensing system, undertakings other than Banedanmark could carry out the construction or management of sections of the national railway infrastructure, which falls within the scope of the statutory monopoly.

150. As regards Rederi’s argument that the hinterland rail connections will be owned not by the State but by Femern Landanlæg, I would observe that, while it is true that, as mentioned in point 9 of this Opinion, once the project is completed, ownership of that infrastructure will be shared between Femern Landanlæg, as to 80%, and Banedanmark, as to 20%, it must nevertheless be regarded as established (94) that the hinterland rail connections will form part of the national network for the management of which Banedanmark has a monopoly, as the General Court found in fact. As regards the circumstance that the State network is integrated with municipal and private networks, that does not appear to be relevant to that argument.

151. As regards, in the fifth place, the arguments which the appellants base upon the analogy with other economic sectors that rely on the use of network infrastructure, such as the telecommunications, electricity and gas sectors, I would first of all point out that they concern the supply of network services, not network management, and they are not therefore, in my view, relevant. In addition, it follows from the foregoing considerations that the General Court did not err in concluding that, because of the existence of the statutory monopoly in favour of Banedanmark, management of the national rail network has not been liberalised in Denmark. That finding is not called into question by any analogy with the legal regime in place in other economic sectors.

152. Lastly, it follows from the foregoing considerations that the arguments put forward by the appellants and by the interveners supporting them concerning the alleged existence of de facto competition must also be rejected. Those arguments too are based on the premiss that there is no statutory monopoly in Denmark in favour of Banedanmark. As I have stated, that premiss is inconsistent with the General Court’s finding of fact mentioned in point 125 above, which is that a statutory monopoly exists over the national railway infrastructure, the operation and management of which cannot, therefore, be open to competition, notwithstanding the licensing system to which the appellants refer.

153. In light of the foregoing analysis, I consider that the second and third sub-pleas in the first ground of appeal should also be rejected.

(c)    The fourth sub-plea in the first ground of appeal, concerning the distinction between construction and maintenance of railway infrastructure, on the one hand, and its operation and management, on the other

(1)    Summary of the arguments of the parties

154. By the fourth sub-plea in the first ground of appeal, the appellants, seconded by the interveners supporting them, take issue with the parts of the judgments under appeal (95) in which the General Court dismissed the arguments by which they sought to show that the activities of construction and maintenance of the railway network, which are open to competition, are among the activities covered by the concept of operation of the railway infrastructure, (96) activities which are entrusted to Femern Landanlæg under the Construction Law. (97)

155. The appellants argue, in the first place, that since the licensing system provided for by the 2010 Railway Act mentioned in point 102 above covers, without distinction, the construction, operation and maintenance of the railway network, it is clear that all those activities are open to competition in Denmark, within the meaning of EU law.

156. In the second place, the appellants submit that the provisions of Article 3(2) and Article 7(1) of Directive 2012/34, (98) read together, are inconsistent with the General Court’s finding that the activities of management of railway infrastructure and of maintenance of railway infrastructure correspond to two separate markets. It is clear from Article 3(2) of Directive 2012/34, they submit, that the official tasks of an infrastructure manager include both the management and the maintenance of railway infrastructure, which demonstrates that the two types of activity form part of the same market. That conclusion is confirmed by Article 7(1) of Directive 2012/34, from which it is apparent that the distinction between essential functions and non-essential functions is not relevant in determining whether or not the activity of management is separate from the activity of maintenance. In any event, it is clear from the definition of ‘infrastructure manager’ in Danish law that such operators are engaged in both management and maintenance. In addition, the General Court failed to explain the reasons for its conclusion that construction and maintenance of railway infrastructure, on the one hand, and operation and management of railway infrastructure, on the other, constitute two separate markets.

157. In the third place, the appellants argue that the General Court erred in concluding that it was not apparent from the provisions of Danish law which it cited that Femern Landanlæg was in a position to carry out the tasks of constructing and maintaining the network itself in competition with other operators. (99) It is, they argue, clear from the Construction Law that Femern Landanlæg, just like Femern, is authorised to carry out construction. The General Court thus distorted the evidence.

158. The interveners supporting the appellants second those arguments. Rederi and Trelleborg add that, contrary to the General Court’s finding, Regulation No 1222 on the tasks and powers of Banedanmark (100) does not entrust that undertaking with responsibility for the construction, upgrading and maintenance of public railway infrastructure, but only of State railway infrastructure. The Construction Law is a lex specialis which replaces provisions of that regulation and confers on Femern Landanlæg the right to construct and manage the hinterland rail connections. Femern Landanlæg is at least a potential competitor of the other managers of railway infrastructure.

159. The Commission and the Kingdom of Denmark dispute the merits of the appellants’ and interveners’ arguments.

(2)    Assessment

160. It should, first of all, be noted that, in the judgments under appeal, the General Court stated that it was common ground between the parties that the markets for the construction and maintenance of railway infrastructure are open to competition. It nevertheless considered that they are separate from the market for the operation and management, in the strict sense, of the railway infrastructure, and that Femern Landanlæg is not active on such markets.

161. The General Court then held that it was clear from the provisions of the law on the planning of the fixed link, (101) of the Construction Law, of the articles of association of Femern Landanlæg, and of Regulation No 1222 on the tasks and powers of Banedanmark that, while those provisions confer responsibility on Femern Landanlæg for ensuring that the hinterland rail connections are constructed and operated, that undertaking is not in a position to carry out the tasks of constructing and maintaining the network itself in competition with other operators. On the basis of those considerations, the General Court concluded that, irrespective of whether the activity of maintaining the infrastructure is technically part of the activity of operating or managing the infrastructure, first, Femern Landanlæg does not directly perform that activity or the activity of construction and, secondly, the references in the decision at issue to the activities of operating and managing the railway network do not go so far as to include the performance of construction and maintenance activities.

162. In the first place, in so far as concerns the appellants’ argument concerning the licensing system provided for by the 2010 Railway Act, I would observe that it is based on the premiss that that system opened up to competition the market for the operation and management of the railway infrastructure in Denmark. That premiss is refuted, in so far as the hinterland rail connections are concerned, by my analysis of the second and third sub-pleas in the first ground of appeal, in points 124 to 153 above. Consequently, that argument cannot be upheld.

163. In the second place, in so far as concerns the argument by which the appellants seek to demonstrate that the General Court’s finding that the markets for the construction and maintenance of the railway network are separate from the market for the operation and management of the railway infrastructure is inconsistent with various provisions of Directive 2012/34, that too should, in my view, be rejected.

164. I would in fact observe in that connection, first of all, that the fact that an operator may, in its capacity as ‘infrastructure manager’ within the meaning of Article 3(2) of Directive 2012/34, be assigned various functions in no way implies that those functions must necessarily be regarded as belonging to a single relevant market. The same operator may well be active on different relevant markets. Moreover, the last part of that provision clearly states that the functions mentioned therein may be allocated to different operators. Similarly, the drafting of the provision on essential functions in Article 7(1) of Directive 2012/34 in no way bears out the assertion that the functions in question belong to a single relevant market. In my view, those provisions of Directive 2012/34 do not, therefore, support the appellants’ contention that the General Court erred in relation to them.

165. In so far as concerns the complaint that there is a failure to state reasons in the judgments under appeal, I would observe that it is settled case-law that the obligation incumbent upon the General Court to state reasons for its judgments does not require it to provide an account that follows exhaustively and one by one all the arguments articulated by the parties to the case. The reasoning may, therefore, be implicit, on condition that it enables the persons concerned to understand the grounds of the General Court’s judgment and provides the Court of Justice with sufficient information to exercise its powers of review on appeal. (102)

166. Suffice it to observe that, in the present case, the reasoning set out by the General Court in paragraphs 121 to 127 of the first judgment under appeal and in paragraphs 96 to 102 of the second judgment under appeal is such as to both enable the appellants to understand the reasons for which the General Court rejected their arguments and to provide the Court of Justice with sufficient information to exercise its power of review. Indeed, it is unambiguously clear from that reasoning that the General Court considered, first, that, although the activity of maintenance might technically be included within the broader concept of network management, the activities of construction and maintenance of railway infrastructure are specific activities which constitute self-standing markets, separate from the market for the operation and management of railway infrastructure and, secondly, that by virtue of the provisions mentioned in point 161 above, Femern Landanlæg was not in a position to carry out those activities in competition with other operators. The complaint alleging insufficient reasoning should therefore, in my view, be rejected.

167. Lastly, in the third place, as regards the complaint of distortion of the evidence in relation to the Construction Law, that is, in my view, ineffective. As I made clear in point 161 above, in support of its conclusion that Femern Landanlæg is not in a position to carry out the tasks of constructing and maintaining the network in competition with other operators, the General Court referred to a variety of legislative provisions, not only to the Construction Law. In their appeals, the appellants give no explanation of why, assuming the General Court had distorted the meaning of the Construction Law, the other provisions to which it referred could not support its conclusion.

168. I should also observe here that, as the additional arguments of Rederi and Trelleborg acknowledge, Regulation No 1222 on the tasks and powers of Banedanmark entrusts that undertaking with responsibility for the construction, upgrading and maintenance of State railway infrastructure. As I noted in point 126 above, the General Court established as fact that the hinterland rail connections form part of the State national railway network, a finding which, as I made clear in point 132 above, is not successfully called into question by the appellants. It follows that the General Court made no error in finding, on the basis of the provisions mentioned in point 161 above, that Femern Landanlæg is not in a position to carry out the tasks of constructing and maintaining the network in competition with other operators in so far as the hinterland rail connections are concerned.

169. As regards the argument that the Construction Law is a lex specialis which replaces the provisions of Regulation No 1222 on the tasks and powers of Banedanmark, that is a new argument calling into question the General Court’s assessments of national law. It is, therefore, inadmissible, in accordance with the case-law I mentioned in points 122 and 123 above.

170. It follows from the foregoing considerations that, in my view, the fourth sub-plea in the first ground of appeal should also be dismissed.

171. Consequently, in my view, the first ground of appeal in both appeals should be dismissed in its entirety.

3.      The second ground of appeal, alleging that the General Court erred in law in its analysis of the liability of the measures granted to Femern Landanlæg to affect trade between Member States

(a)    Arguments of the parties

172. By their second ground of appeal, the appellants, supported by FSS and Rederi, submit that the General Court infringed Articles 107(1) and 108(2) TFEU by holding in the judgments under appeal (103) that the measures granted to Femern Landanlæg were not liable to affect trade between Member States. The appellants confine themselves to stating, in the first place, that, for the reasons set out in the context of their first ground of appeal, and in particular because the measures granted to Femern Landanlæg are liable to affect competition both on the market for the management of railway infrastructure and on the market for transport across Fehmarn Belt, those measures are liable to affect trade between Member States. In the second place, they submit that the project concerns the construction and operation of infrastructure that connects two Member States.

173. The Commission and the Kingdom of Denmark contend that the second ground of appeal is inadmissible in that it too fails to satisfy the requirements of Article 169(2) of the Rules of Procedure. They also dispute the merits of the second ground of appeal.

(b)    Assessment

174. I consider, first of all, that, for the reasons I mentioned in point 87 above, the objection of inadmissibility, based on Article 169(2) of the Rules of Procedure, in relation to the second ground of appeal in the main appeals should also be dismissed.

175. In the judgments under appeal, the General Court rejected the arguments concerning the liability of the measures granted to Femern Landanlæg to affect trade between Member States, finding, first, that it is the fact that there is no competition on the market for the management of the national railway infrastructure that prevents other companies established in other Member States from penetrating that market and, secondly, that the planning law mentioned in point 161 above does not allow Femern Landanlæg to engage in activities other than those relating to the hinterland rail connections.

176. I would point out that those conclusions of the General Court’s are, essentially, findings of fact which the arguments raised by the appellants, which allege no distortion of the facts, are incapable of calling into question. I should also point out that the measures granted to Femern Landanlæg concern the financing of infrastructure, namely the hinterland rail connections, which is situated within a single Member State rather than directly connecting two Member States. That infrastructure does not, therefore, have the cross-border character that the appellants attribute to it. Moreover, as I noted in point 95 above, the appellants have not argued that the measures granted in the context of the project to various recipients and for various purposes should have been the subject of a single analysis.

177. It follows from the foregoing considerations that, in my view, the second ground of appeal in the main appeals should also be dismissed.

V.      Conclusion

178. In light of the foregoing considerations, I propose that the Court should:

(1)      declare inadmissible the cross-appeals brought by the Commission;

(2)      dismiss the first and second grounds of appeal in the main appeals brought by Scandlines Danmark ApS and Scandlines Deutschland GmbH and by Stena Line Scandinavia AB.

1      Original language: Italian.

2      Judgments of the General Court of the European Union of 13 December 2018, Scandlines Danmark and Scandlines Deutschland v Commission, T‑630/15, not published, EU:T:2018:942, ‘the first judgment under appeal’), and of 13 December 2018, Stena Line Scandinavia v Commission (T‑631/15, not published, EU:T:2018:944, ‘the second judgment under appeal’. I shall refer to the two judgments considered together as ‘the judgments under appeal’).

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

4      See paragraphs 2 to 22 of both judgments under appeal. For more details, see recitals 4 to 28 of the decision at issue.

5      More specifically, the project includes the conversion of the current single-track railway between the towns of Vordingborg and Rødby to a dual-track line, the electrification of the section of the railway line between Ringsted and Rødby and the installation of new signalling equipment (see recital 5 of the decision at issue). As regards the hinterland road connections, they are not the subject of the present cases.

6      Lov No 575 om anlæg og drift af en fast forbindelse over Femern Bælt med tilhørende landanlæg i Danmark (Law No 575 on the construction and operation of the Fehmarn Belt fixed link project and Danish hinterland connections) of 4 May 2015 (‘the Construction Law’).

7      With regard to terminology, I should immediately clarify that, according to the General Court’s findings in paragraph 100 of the first judgment under appeal and in paragraph 75 of the second judgment under appeal, in the present cases, ‘operation’ (in French ‘exploitation’) of the railway infrastructure means the making available of the infrastructure to railway undertakings for consideration, while the term ‘management’ (in French ‘gestion’) means the establishment and maintenance of the physical infrastructure. As is apparent from paragraphs 99 to 107 of the first judgment under appeal and from paragraphs 74 to 82 of the second judgment under appeal, the meanings thus ascribed to those terms do not necessarily correspond to the meanings ascribed to them in Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012 establishing a single European railway area (OJ 2012 L 343, p. 32, in the original version, without successive amendments, applicable as at the date of adoption of the decision at issue).

8      The road connections are to be created directly by the Danish State and made available free of charge to all users (see paragraph 9 of the judgments under appeal).

9      It is apparent from recital 53 of the decision at issue that the operation of the infrastructure includes the management of capacity, the assignment of slots on the railway and the collection of railway charges from the railway operators using the tracks.

10      Recitals 50 to 57 of the decision at issue.

11      See recitals 53 to 55 of the decision at issue and paragraph 19 of the judgments under appeal.

12      See recital 55 of the decision at issue and paragraph 19 of the judgments under appeal.

13      Recitals 58 to 124 of the decision at issue.

14      See paragraphs 78 to 134 of the judgments under appeal.

15      See paragraphs 135 to 280 of the judgments under appeal.

16      Commission Decision (EU) 2020/1472 of 20 March 2020 on the State aid SA.39078 – 2019/C (ex 2014/N) which Denmark implemented for Femern A/S (OJ 2020 L 339, p. 1). In that decision, the Commission stated that some of the measures adopted in favour of Femern did not constitute State aid within the meaning of Article 107(1) TFEU and that other such measures did constitute aid within the meaning of that provision, but were compatible with the internal market on the basis of Article 107(3)(b) TFEU (see Articles 1 and 2 of the decision). That decision is challenged in Case T‑364/20, Denmark v Commission; Case T‑390/20, Scandlines Danmark and Scandlines Deutschland v Commission; and Case T‑391/20, Stena Line Scandinavia v Commission.

17      See paragraph 80 of the first judgment under appeal and paragraph 55 of the second judgment under appeal.

18      See paragraph 81 of the first judgment under appeal and paragraph 56 of the second judgment under appeal.

19      As I have recently had occasion to point out (see footnote 114 to my Opinion in World Duty Free Group v Commission and Spain v Commission (C‑51/19 P and C‑64/19 P, EU:C:2021:51), although the case-law following on from Boehringer has been criticised by some Advocates General, it continues to be applied both by the General Court and by the Court of Justice (for a recent case of application in appeal proceedings, see judgment of 21 December 2016, Club Hotel Loutraki and Others v Commission, C‑131/15 P, EU:C:2016:989, paragraph 68).

20      See paragraphs 50 to 54 of Boehringer.

21      See judgments of 29 November 2007, Stadtwerke Schwäbisch Hall and Others v Commission (C‑176/06 P, not published, EU:C:2007:730, paragraph 18), and of 29 July 2019, Bayerische Motoren Werke and Freistaat Sachsen v Commission (C‑654/17 P, EU:C:2019:634, paragraph 44).

22      In the context of the procedure for reviewing State aid provided for in Article 108 TFEU, the preliminary stage of the procedure for reviewing aid under Article 108(3) TFEU, which is intended merely to allow the Commission to form a prima facie opinion on the partial or complete conformity of the aid in question, must be distinguished from the stage of the review under Article 108(2) TFEU. See judgment of 17 September 2015, Mory and Others v Commission (C‑33/14 P, EU:C:2015:609, paragraph 94 and the case-law cited).

23      In accordance with Article 4(2) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of [Article 108 TFEU] (OJ 1999 L 83, p. 1), since repealed by Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ 2015 L 248, p. 9). See, in particular, recital 57 and the first indent of the operative part of the decision at issue.

24      See, on that point, judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission and Commission v Scuola Elementare Maria Montessori and Commission v Ferracci (C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 29 et seq.).

25      Judgment of 15 July 1963, Plaumann v Commission (25/62, EU:C:1963:17, p. 107).

26      Regarding State aid, see, inter alia, judgment of 17 September 2015, Mory and Others v Commission (C‑33/14 P, EU:C:2015:609, paragraph 93 and the case-law cited).

27      See, to that effect, judgments of 24 May 2011, Commission v Kronoply and Kronotex (C‑83/09 P, EU:C:2011:341, paragraph 48), and of 17 September 2015, Mory and Others v Commission (C‑33/14 P, EU:C:2015:609, paragraph 95 and the case-law cited). As regards the application of those principles to decisions adopted under Article 4(2) of Regulation No 659/1999, see judgment of 17 July 2008, Athinaïki Techniki v Commission (C‑521/06 P, EU:C:2008:422, paragraph 53).

28      See, inter alia, judgment of 17 September 2015, Mory and Others v Commission (C‑33/14 P, EU:C:2015:609, paragraph 97 and the case-law cited).

29      See paragraph 36 of the first judgment under appeal and paragraph 32 of the second judgment under appeal.

30      See paragraph 39 of the first judgment under appeal and paragraph 33 of the second judgment under appeal.

31      This case-law goes back to the judgment of 28 January 1986, Cofaz and Others v Commission (169/84, EU:C:1986:42, paragraph 25). See also judgment of 17 September 2015, Mory and Others v Commission (C‑33/14 P, EU:C:2015:609, paragraph 97 and the case-law cited). For a very recent and complete examination of that case-law, see Opinion of Advocate General Szpunar in Deutsche Lufthansa v Commission (C‑453/19 P, EU:C:2020:862, point 39 et seq.)

32      See point 101 et seq. below.

33      See, inter alia, judgment of 22 December 2008, British Aggregates v Commission (C‑487/06 P, EU:C:2008:757, paragraph 47 and the case-law cited).

34      See, by analogy, judgment of 22 November 2007, Sniace v Commission (C‑260/05 P, EU:C:2007:700, paragraphs 56 and 57), and point 41 of the Opinion of Advocate General Szpunar in Deutsche Lufthansa v Commission, mentioned in footnote 31 of this Opinion.

35      See judgment of 2 April 1998, Commission v Sytraval and Brink’s France (C‑367/95 P, EU:C:1998:154, paragraph 41 and the case-law cited).

36      See judgment of 27 October 2011, Austria v Scheucher-Fleisch and Others (C‑47/10 P, EU:C:2011:698, paragraph 132 and the case-law cited).

37      Judgment of 3 September 2020, Vereniging tot Behoud van Natuurmonumenten in Nederland and Others v Commission (C‑817/18 P, EU:C:2020:637, paragraph 50 and the case-law cited).

38      See, in particular, judgments of 24 May 2011, Commission v Kronoply and Kronotex (C‑83/09 P, EU:C:2011:341, paragraph 65), and of 27 October 2011, Austria v Scheucher-Fleisch and Others (C‑47/10 P, EU:C:2011:698, paragraph 132). See also Opinion of Advocate General Szpunar in Vereniging tot Behoud van Natuurmonumenten in Nederland and Others v Commission (C‑817/18 P, EU:C:2020:255, point 36 et seq., which contain further case-law references).

39      See judgment of 24 May 2011, Commission v Kronoply and Kronotex (C‑83/09 P, EU:C:2011:341, paragraphs 64 and 65).

40      See, inter alia, judgment of 27 June 2017, Congregación de Escuelas Pías Provincia Betania (C‑74/16, EU:C:2017:496, paragraph 78 and the case-law cited).

41      See, to that effect, judgment of 3 September 2020, Vereniging tot Behoud van Natuurmonumenten in Nederland and Others v Commission (C‑817/18 P, EU:C:2020:637, paragraph 81 and the case-law cited).

42      Judgment of 21 December 2016, Club Hotel Loutraki and Others v Commission (C‑131/15 P, EU:C:2016:989, paragraphs 32 and 33 and the case-law cited).

43      Judgment of 21 December 2016, Club Hotel Loutraki and Others v Commission (C‑131/15 P, EU:C:2016:989, paragraph 31).

44      Paragraphs 87 to 93 of the first judgment under appeal and paragraphs 62 to 68 of the second judgment under appeal.

45      The appellants refer to paragraph 32 of that judgment.

46      See paragraph 88 of the first judgment under appeal and paragraph 63 of the second judgment under appeal.

47      That expression was used by the Kingdom of Denmark in its pleadings.

48      See, in particular, paragraph 88 of the first judgment under appeal and paragraph 63 of the second judgment under appeal.

49      See footnote 44 above.

50      See, inter alia, Order of 3 September 2019, ND and OE v Commission (C‑317/19 P, not published, EU:C:2019:688, paragraphs 27 and 28 and the case-law cited).

51      Judgment of 21 December 2016, Club Hotel Loutraki and Others v Commission (C‑131/15 P, EU:C:2016:989, paragraph 26 and the case-law cited).

52      See, most recently, inter alia, the judgment of 9 December 2020, Groupe Canal + v Commission (C‑132/19 P, EU:C:2020:1007, paragraph 68 and the case-law cited). See also, on that point, point 122 above.

53      Since none of those aspects was disputed, they cannot form the subject of any analysis by the General Court or, still less, by the Court of Justice in an appeal.

54      Nor have the appellants raised that argument before the Court of Justice. It is only in their responses to the Commission’s cross-appeals that they argue, for the sole purpose of substantiating their arguments on admissibility, that ‘the operation of the hinterland connections produces effects on that market for transport across Fehmarn Belt’. Some of the interveners, including Rederi, which referred at the hearing to the judgment of 28 July 2011, Mediaset v Commission (C‑403/10 P, not published, EU:C:2011:533), have argued before the Court of Justice that the measures granted to Femern Landanlæg will distort competition on the ‘related’ market for transport services across Fehmarn Belt, in that they will strengthen Femern’s position or bring about an increase in demand on that market. However, it must be observed that those arguments were not raised before the General Court and they are, therefore, new arguments which, in accordance with the case-law mentioned in point 97 of this Opinion, are not admissible in an appeal. The same applies to the argument that the hinterland rail connections are essential infrastructure if a rail transport service across Fehrman Belt is to be possible. I would also observe that not only have the appellants not argued that the measures adopted in favour of Femern Landanlæg will benefit Femern’s competitive position, but also, as is apparent from the procedural documents at first instance, they have not even disputed the Commission’s argument that the measures in question benefited Banedanemark and Femern Landanlæg alone, to the exclusion of Femern. See, on that point, paragraph 8 of the reply lodged with the General Court.

55      See, on that point, inter alia, judgments of 28 November 2019, Brugg Kabel and Kabelwerke Brugg v Commission (C‑591/18 P, not published, EU:C:2019:1026, paragraph 70 and the case-law cited), and of 11 December 2008, Commission v Département du Loiret (C‑295/07 P, EU:C:2008:707, paragraph 95 and the case-law cited).

56      See, inter alia, judgment of 28 November 2019, Brugg Kabel and Kabelwerke Brugg v Commission (C‑591/18 P, not published, EU:C:2019:1026, paragraph 70 and the case-law cited).

57      See paragraphs 38 and 39 of the applications and paragraph 7 of the replies lodged with the General Court.

58      It is not disputed that the two sets of measures serve different purposes, those adopted in favour of Femern being for the financing, construction and operation of the fixed link, those adopted in favour of Femern Landanlæg, being for the financing, construction and operation of the hinterland connections.

59      See recital 6 of the decision at issue.

60      See paragraphs 108 to 116 and 117 to 120, respectively, of the first judgment under appeal and paragraphs 83 to 91 and 92 to 95, respectively, of the second judgment under appeal. In their appeals, the appellants state that they also take issue, respectively, with paragraph 96 of the first judgment under appeal and paragraphs 69 and 70 of the second judgment under appeal, in which the General Court held that the hinterland rail connections form part of the national rail network, although they do not develop any specific argument in that regard. See, in that connection, point 132 of the present Opinion.

61      Bekendtgørelse af lov no 1249 om jernbane (Law No 1249 on railways) of 11 November 2010 (‘the 2010 Railway Act’).

62      Paragraph 108 et seq. of the first judgment under appeal and paragraph 83 et seq. of the second judgment under appeal.

63      The appellants refer to a Commission document entitled ‘Infrastructure Analytical Grid for Railway, Metro and Local Transport Infrastructure’, available at https://ec.europa.eu/competition/state_aid/modernisation/grid_rail_metro_en.pdf.

64      Paragraph 112 of the first judgment under appeal and paragraph 87 of the second judgment under appeal.

65      Paragraph 113 of the first judgment under appeal and paragraph 88 of the second judgment under appeal.

66      Paragraph 111 of the first judgment under appeal and paragraph 86 of the second judgment under appeal.

67      Rederi, Trelleborg and Aktionsbündnis refer to paragraph 11 of the document mentioned in footnote 63, which is available in English only, and to footnote 272 to paragraph 188(a) of the Commission Notice on the notion of State aid as referred to in Article 107(1) TFEU (OJ 2016 C 262, p. 1; ‘the Commission Notice on State aid’).

68      Rederi referred to paragraph 39 of the judgment of 23 January 2019, Fallimento Traghetti del Mediterraneo (C‑387/17, EU:C:2019:51).

69      Sections 2 and 3 of Sub-chapter 3 of Chapter 3 of the 2010 Railway Act, mentioned in footnote 61 to this Opinion.

70      Paragraphs 108 to 112 of the first judgment under appeal and paragraphs 83 to 87 of the second judgment under appeal.

71      Paragraph 112 of the first judgment under appeal and paragraph 87 of the second judgment under appeal.

72      Paragraph 95 of the first judgment under appeal and paragraph 70 of the second judgment under appeal.

73      Paragraphs 119 and 120 of the first judgment under appeal and paragraphs 94 and 95 of the second judgment under appeal.

74      See, inter alia, judgment of 3 April 2014, France v Commission (C‑559/12 P, EU:C:2014:217, paragraphs 78 and 79 and the case-law cited).

75      See, inter alia, judgments of 6 November 2018, Scuola Elementare Maria Montessori v Commission and Commission v Scuola Elementare Maria Montessori and Commission v Ferracci (C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 107), and of 21 December 2016, Commission v Hansestadt Lübeck, C‑524/14 P, EU:C:2016:971, paragraph 20 and the case-law cited).

76      See paragraph 112 of the first judgment under appeal and paragraph 87 of the second judgment under appeal.

77      Sub-chapter 16 of Chapter 5 of Jernbanelov no 686 (Law No 686 on railways) of 27 May 2015 (‘the 2015 Railway Act’).

78      See paragraph 114 of the first judgment under appeal and paragraph 89 of the second judgment under appeal.

79      See point 7 of, and footnote 5 to this Opinion.

80      See paragraph 95 of the first judgment under appeal and paragraph 70 of the second judgment under appeal.

81      Sections 2 and 3 of Sub-chapter 3 of Chapter 3 of the 2010 Railway Act mentioned in footnote 61 of this Opinion.

82      See, inter alia, judgment of 21 December 2011, A2A v Commission (C‑320/09 P, not published, EU:C:2011:858, paragraph 125). For an example of a ground of appeal raised in a State aid case and alleging distortion by the General Court of national law, see point 161 et seq. of the Opinion of Advocate General Tanchev in Commission v Italy and Fondo interbancario di tutela dei depositi (C‑425/19 P, EU:C:2020:878). For the same reason, the argument by which Rederi claimed, at the hearing, without alleging distortion of the facts, that, pursuant to Sub-chapter 16 of Chapter 5 of the 2015 Railway Act (see footnote 77 to this Opinion), the statutory monopoly conferred on Banedanmark did not extend to the hinterland rail connections should also be rejected as inadmissible.

83      See paragraph 34 of the appeal lodged by Scandlines Danmark ApS and Scandlines Deutschland GmbH and paragraph 32 of the appeal lodged by Stena Line Scandinavia AB.

84      See, specifically, footnotes 63 and 67 above.

85      See, inter alia, judgment of 16 July 2020, Nexans France and Nexans v Commission (C‑606/18 P, EU:C:2020:571, paragraph 104 and the case-law cited).

86      See paragraph 111 of the first judgment under appeal and paragraph 86 of the second judgment under appeal.

87      See point 105 above.

88      See paragraphs 13, 29, 30, and 58 of the judgment in Arriva Italia.

89      See paragraph 54 of the judgment in Arriva Italia.

90      See paragraph 57 of the judgment in Arriva Italia.

91      See paragraph 58 of the judgment in Arriva Italia.

92      See paragraph 112 of the first judgment under appeal and paragraph 87 of the second judgment under appeal.

93      See paragraph 39 of the judgment of 23 January 2019, Fallimento Traghetti del Mediterraneo (C‑387/17, EU:C:2019:51).

94      See point 132 above.

95      Paragraphs 121 to 127 of the first judgment under appeal and paragraphs 96 to 102 of the second judgment under appeal.

96      Regarding the scope of those concepts in the present case, see footnote 7 above.

97      See footnote 6 above.

98      Article 3(2) of Directive 2012/34 defines an ‘infrastructure manager’ as ‘any body or firm responsible in particular for establishing, managing and maintaining railway infrastructure, including traffic management and control-command and signalling’ and provides that ‘the functions of the infrastructure manager on a network or part of a network may be allocated to different bodies or firms’. Article 7(1) of that directive provides that ‘Member States shall ensure that the essential functions determining equitable and non-discriminatory access to infrastructure, are entrusted to bodies or firms that do not themselves provide any rail transport services’, and then goes on to define those essential functions.

99      See paragraph 125 of the first judgment under appeal and paragraph 100 of the second judgment under appeal. For the same reasons, the appellants also dispute the conclusion contained in paragraphs 127 and 102 respectively of the judgments under appeal.

100      Bekendtgørelse n^o 1222 om Banedanmarks opgaver og beføjelser of 21 November 2014. See paragraph 124 of the first judgment under appeal and paragraph 99 of the second judgment under appeal.

101      Lov no 285 om projektering af fast forbindelse over Femern Bælt med tilhørende landanlæg i Danmark of 15 April 2009.

102      See, inter alia, judgment of 25 November 2020, Commission v GEA Group (C‑823/18 P, EU:C:2020:955, paragraph 42 and the case-law cited).

103      Paragraphs 128 to 132 of the first judgment under appeal and paragraphs 103 to 107 of the second judgment under appeal.