Orders nº T-87/09 of Court of First Instance of the European Communities, November 25, 2009

Resolution DateNovember 25, 2009
Issuing OrganizationCourt of First Instance of the European Communities
Decision NumberT-87/09

In Case T‑87/09,

Jørgen Andersen, residing in Ballerup (Denmark), represented by M. Nissen, J. Rivas de Andrés and J. Gutierrez Gisbert, lawyers,

applicant,

v

Commission of the European Communities, represented by B. Martenczuk and C. Urraca Caviedes, acting as Agents,

defendant,

ACTION for annulment of Commission Decision C(2008) 4776 final of 10 September 2008 to initiate the procedure provided for in Article 88(2) EC in respect of State aid C 41/2008 (ex NN 35/2008), implemented by the Kingdom of Denmark in favour of Danske Statsbaner,

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Eighth Chamber),

composed of M.E. Martins Ribeiro, President, S. Papasavvas (Rapporteur) and N. Wahl, Judges,

Registrar: E. Coulon,

makes the following

Order

Background to the dispute

1 The applicant, J. Andersen, operates bus transport services in Denmark and elsewhere under the trade name Gråhundbus v/Jørgen Andersen. His routes include a link between Copenhagen (Denmark) and Ystad (Sweden). Ystad is linked by water route to the island of Bornholm (Denmark).

2 On 3 February 2003, the applicant lodged a complaint with the Commission of the European Communities concerning alleged State aid granted by the Kingdom of Denmark to the incumbent operator providing rail transport services in Denmark, namely Danske Statsbaner (DSB).

3 That complaint concerned the rail link between Copenhagen and Ystad, which was included in a public service contract between the Danish Ministry of Transport and DSB for the period from 2005 to 2014.

4 The applicant argued in his complaint inter alia that the compensation for a public service was unacceptable when the market in question was open to competition, that the Danish Government had to choose the solution which is least costly for the community and that, in any event, the compensation granted had to correspond to the extra cost resulting from the imposition of public service obligations.

5 On the basis of the complaint lodged by the applicant and a second complaint lodged in 2006 by a Danish association representing the interests of a number of bus operators, the Commission adopted Decision C(2008) 4776 final of 10 September 2008 (‘the contested decision’), published in the Official Journal of the European Union of 4 December 2008 (OJ 2008 C 309, p. 14) in the authentic language (Danish), preceded by a summary in the other official languages. By the contested decision, the Commission initiated the formal investigation procedure provided for in Article 88(2) EC relating to State aid C 41/2008 (ex NN 35/2008), which the Kingdom of Denmark implemented in favour of DSB.

6 According to recital 5 of the contested decision, DSB is wholly owned by the Danish State and provides, inter alia, passenger rail transport services.

7 The contested decision concerns, in addition to the measures complained of by the applicant, measures relating to another public service contract for the period from 2000 to 2004, criticised in the second complaint of 2006.

8 Recital 58 of the contested decision states that the contract signed by the Danish Ministry of Transport and DSB concerning the link between Copenhagen and Ystad for the period from 2005 to 2014 provides for the payment of several million Danish crowns (DKK) per year to DSB by way of compensation for the performance of public service obligations.

9 For the appraisal of the measures provided for by that contract in the light of the provisions relating to State aid, the Commission began by examining whether they were State aid for the purposes of Article 87(1) EC. The Commission was not able to rule out the possibility that those measures did constitute such aid. It thus conducted an initial assessment of the compatibility of those measures with the common market.

10 Regarding, more specifically, the classification of the measures in question as State aid for the purposes of Article 87(1) EC, the Commission observed that the payments in question had been made using State resources and that DSB was an undertaking within the meaning of Article 87(1) EC (recitals 66 and 67 of the contested decision). As to whether those measures conferred an economic advantage on DSB, the Commission stated, in recital 68 of the contested decision, that it would examine whether the four criteria laid down in that regard in C‑280/00 Altmark Trans and Regierungspräsidium Magdeburg [2003] ECR I‑7747 (‘Altmark’) were satisfied in the present case.

11 With respect to the first criterion, that the recipient undertaking must actually have clearly-defined public service obligations to discharge (Altmark, paragraph 89), the Commission observed, first, that the Member States have broad discretion to determine whether a service is of general economic interest. Next, the Commission stated that the reasons put forward by the Danish State, namely territorial continuity and the need for reliability and regularity in traffic between Copenhagen and Bornholm island, the serving of the coastal towns by train routes and the granting of reduced fares to certain categories of passengers, did not show that the decision to include that line in the public service contract was vitiated by a manifest error of assessment. In those circumstances, the Commission took the view that the first Altmark criterion was satisfied as regards the link between Copenhagen and Ystad (recitals 70 to 76 of the contested decision).

12 As regards the second criterion, that the parameters on the basis of which the compensation is calculated must be established in advance in an objective and transparent manner (Altmark, paragraph 90), the Commission noted that it was satisfied for the period from 1999 to 2008. It expressed doubts in that regard, however, for the period from 2009 to 2014, due to the lack of a forecast budget which would have served as a basis for calculating the compensation to be granted (recital 80 of the contested decision).

13 Regarding the third criterion, that the compensation cannot exceed what is necessary to cover all or part of the costs incurred in the discharge of public service obligations, taking into account the relevant receipts and a reasonable profit for discharging those obligations (Altmark, paragraph 92), the Commission stated, in recitals 102 and 103 of the contested decision, that it did not rule out the possibility of there being overcompensation with respect to the link between Copenhagen and...

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