31.8.2020

Official Journal of the European Union

C 287/33

(Case T-364/20)

(2020/C 287/53)

Language of the case: Danish

Parties

Applicant: Kingdom of Denmark (represented by: J. Nymann-Lindegren and M. Wolff, acting as Agents, and R. Holdgaard and J. Pinborg, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

—annul article 2 of the European Commission’s decision of 20 March 2020 on the State aid SA.39078 — 2019/C (ex 2014/N) which Denmark implemented for Femern A/S, in so far as it found that ‘the measures consisting of capital injections and a combination of State loans and State guarantees in favour of Femern A/S, which Denmark at least partially put into effect unlawfully, constitute State aid within the meaning of Article 107(1) of the Treaty on the Functioning of the European Union’;

—order the Commission to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on two pleas in law.

1.First plea in law: the Commission erred in finding that the financing of Femern A/S constitutes State aid within the meaning of Article 107(1) TFEU.

The first plea is divided into four parts.

The applicant claims, first, that the Commission erred in law in finding, in paragraphs 190 to 194 of the contested decision, that Femern A/S’ activities do not constitute the exercise of public power. In that regard, the applicant claims:

—that the method adopted by the Commission in paragraphs 190 to 194 in order to assess whether Femern A/S’ activities constitute the exercise of public power is contrary to Article 107(1) TFEU;

—that, in its assessment of whether Femern A/S’ activities constitute the exercise of public power and for that reason fall outside the scope of EU State aid and competition rules, the Commission erred in law by attaching importance to whether there are private operators whose activities could be considered alternatives to those of Femern A/S and who consider themselves to be in competition with Femern A/S’ activities; and

—that the Commission erred in law in finding concretely that Femern A/S’ activities regarding the planning, construction and operation of the coast-to-coast link do not constitute the exercise of public power.

The applicant claims, second, that the Commission erred in law in finding, in paragraph 193 of the contested decision, that Femern A/S offers transport services on a market in competition with others.

The applicant claims, third, that the Commission erred in law in finding, in paragraphs 192 to 194 and 196 of the contested decision, that Femern A/S is an ‘economic operator’ governed by an ‘economic logic’‘commercially exploiting’ the fixed link.

The applicant claims, fourth, that the Commission erred in law in finding, in paragraphs 233 to 240 of the contested decision, that the financing of Femern A/S is liable to distort competition and affect trade between Member States.

2.Second plea in law: the Commission erred in law in finding that Femern A/S is engaged in an economic activity in competition with others before the fixed link is operational.

In support of this plea, the applicant claims that the Commission erred in law in finding, in paragraph 198 of the contested decision, that the financing of Femern A/S constitutes State aid within the meaning of Article 107(1) TFEU even when construction has been started.