ITD, Brancheorganisation for den danske vejgodstransport and Danske Fragtmænd A/S v European Commission.

• Jurisdiction: European Union
• ECLI: ECLI:EU:T:2023:542
• Date: 13 September 2023
• Docket Number: T-525/20
• Celex Number: 62020TJ0525
• Court: General Court (European Union)

JUDGMENT OF THE GENERAL COURT (Fourth Chamber, Extended Composition)

13 September 2023 ( *1 )

(State aid – Postal and road haulage sector – Complaint from a competitor – Capital contribution granted by a public undertaking to its subsidiary – Decision finding no State aid after the preliminary examination stage – Parent company of the group jointly controlled by two Member States – Approval of the capital contribution by the parent company of the group – Whether imputable to the State)

In Case T‑525/20,

ITD, Brancheorganisation for den danske vejgodstransport, established in Padborg (Denmark),

Danske Fragtmænd A/S, established in Åbyhøj (Denmark),

represented L. Sandberg-Mørch, lawyer,

applicants,

supported by

Jørgen Jensen Distribution A/S, established in Ikast (Denmark), represented by L. Sandberg-Mørch, lawyer,

and by

Specialforeningen for Logistik og Distribution (SLD), established in Copenhagen (Denmark), represented by L. Sandberg-Mørch, lawyer,

interveners,

v

European Commission, represented by L. Flynn, acting as Agent,

defendant,

supported by

Kingdom of Denmark, represented by M. Søndahl Wolff, acting as Agent, and by R. Holdgaard, lawyer,

and by

Kingdom of Sweden, represented by C. Meyer-Seitz, H. Eklinder, A. Runeskjöld, M. Salborn Hodgson, H. Shev, R. Shahsavan Eriksson and O. Simonsson, acting as Agents,

and by

PostNord Logistics A/S, established in Køge (Denmark),

and

PostNord Group AB, established in Solna (Sweden),

represented by O. Koktvedgaard, lawyer,

interveners,

THE GENERAL COURT (Fourth Chamber, Extended Composition),

composed of R. da Silva Passos (Rapporteur), President, S. Gervasoni, N. Półtorak, I. Reine and T. Pynnä, Judges,

Registrar: A. Marghelis, Administrator,

having regard to the written part of the procedure,

further to the hearing on 2 February 2023,

gives the following

Judgment ( 1 )

1 By their action under Article 263 TFEU, the applicants, ITD, Brancheorganisation for den danske vejgodstransport A/S (‘ITD’) and Danske Fragtmænd A/S, seek the annulment of Decision C(2020) 3006 final of the Commission of 12 May 2020 concerning State aid SA.52489 (2018/FC) – Denmark and SA.52658 (2018/FC) – Sweden – Alleged State aid to PostNord Logistics (‘the contested decision’).

Background to the dispute

2 ITD is a trade association of companies incorporated under Danish law that are active on the national and international markets for road haulage and logistics services. Danske Fragtmænd is a company incorporated under Danish law and active, inter alia, on the Danish market for road haulage and parcel distribution services.

3 PostNord AB is a company incorporated under Swedish law whose share capital is 40% owned by the Kingdom of Denmark and 60% owned by the Kingdom of Sweden. It was formed in 2009, under the name Posten Norden AB, following a merger between Post Danmark A/S, the incumbent postal operator in the Kingdom of Denmark, and Posten AB, the incumbent postal operator in the Kingdom of Sweden.

4 PostNord owns 100% of PostNord Group AB, which itself owns 100% of Post Danmark and Posten, which are responsible for providing the universal postal service in Denmark and Sweden respectively. PostNord Group also owns 100% of PostNord Logistics A/S, a company incorporated under Danish law established in Copenhagen (Denmark) and responsible for road haulage services in Denmark.

5 On 22 November 2018, ITD lodged a complaint with the European Commission alleging that PostNord Logistics had announced, in its annual reports for 2017 and 2018, that it would receive capital injections from PostNord. According to ITD, those capital injections constituted unlawful State aid incompatible with the internal market.

6 PostNord Logistics had been loss-making since 2015 and had lost its entire share capital by the end of the 2017 financial year. It is in that context that, on 30 November 2018, at an extraordinary general meeting, PostNord Logistics recommended to the management of PostNord Group to make a capital injection of 115 million Danish kroner (DKK) (approximately EUR 15.4 million) in its favour (‘the capital injection’).

7 In view of the amount of the capital injection, on 7 December 2018 PostNord Group requested that the board of directors of its parent company, PostNord, approve that measure and the principle that it be paid in several tranches.

8 On 11 December 2018, the board of directors of PostNord approved the capital injection.

9 On 20 December 2018, PostNord Logistics received an initial tranche of the capital injection, in the amount of DKK 70 million (approximately EUR 9.37 million).

10 On 7 June 2019, ITD submitted additional comments to the Commission in respect of its complaint, in which it submitted, inter alia, that PostNord Logistics would benefit from cross-subsidisation of its activities by Post Danmark, which would allow it to use, free of charge, several of its infrastructures financed by the public compensation it received for providing the universal postal service in Denmark (‘the cross-subsidisation’).

11 On 30 March 2020, ITD submitted new observations to the Commission regarding the cross-subsidisation and a letter of formal notice stating that, if the Commission did not adopt a definitive position on its complaint within two months, it would bring an action for failure to act before the General Court under Article 265 TFEU.

12 On 12 May 2020, the Commission adopted the contested decision. First, it found that the statements in PostNord Logistics’s annual reports for 2017 and 2018 did not entail the grant of an advantage and, therefore, did not constitute State aid. Second, it concluded that the capital injection was not imputable to the Danish and Swedish States and, therefore, did not constitute State aid, either. Third, it found that cross-subsidisation had not been established and that, therefore, the transactions between Post Danmark and PostNord Logistics did not involve State aid.

Forms of order sought

13 The applicants, supported by Jørgen Jensen Distribution A/S and Specialforeningen for Logistik og Distribution (SLD), submit that the Court should: – annul the contested decision; – order the Commission to pay the costs.

14 The Commission, supported by PostNord Group and PostNord Logistics, contends that the Court should: – dismiss the action; – order the applicants to pay the costs.

15 The Kingdom of Denmark and the Kingdom of Sweden, also intervening in support of the form of order sought by the Commission, contend that the Court should dismiss the action.

Law

Subject matter of the action

16 In the contested decision, the Commission ruled on the aid character of three separate measures (see paragraph 12 above).

17 In support of their action, the applicants raise a single plea in law, alleging that the Commission failed to initiate the formal investigation procedure provided for in Article 108(2) TFEU, despite the serious difficulties raised by the assessment of two of those measures, namely, the capital injection, on the one hand, and the cross-subsidisation, on the other. By the present action, however, they are not calling into question the Commission’s assessment regarding the statements in PostNord Logistics’ annual reports for 2017 and 2018.

18 Thus, while the applicants formally seek the annulment of the contested decision in its entirety, the present action must be regarded as seeking the partial annulment of that decision, on the ground that the Commission infringed Article 108(2) TFEU by concluding that the capital injection was not State aid and that the existence of the cross-subsidisation had not been established.

Preliminary observations

19 According to the first sentence of Article 24(2) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 TFEU (OJ 2015 L 248, p. 9), any interested party is entitled to submit a complaint to inform the Commission of any alleged unlawful aid. In accordance with the first sentence of Article 15(1) of that regulation, the lodging of such a complaint triggers the initiation of the preliminary examination stage provided for in Article 108(3) TFEU, entailing the adoption, by the Commission, of a decision under Article 4(2), (3) or (4) of Regulation 2015/1589.

20 The purpose of the preliminary examination stage provided for in Article 108(3) TFEU and governed by Article 4 of Regulation 2015/1589 is to enable the Commission to form an initial view on the measures submitted for its examination. On completion of that phase, the Commission is to make a finding either that the measure does not constitute aid, in which case it is to adopt a decision finding that there is no aid, under Article 4(2) of Regulation 2015/1589, or that the measure falls within the scope of Article 107(1) TFEU. If, following the preliminary examination, the Commission finds that, notwithstanding the fact that the measure in question falls within the scope of Article 107(1) TFEU, it does not raise any doubts as to its compatibility with the internal market, the Commission is to adopt a decision not to raise objections under Article 4(3) of Regulation 2015/1589.

21 The existence of doubts such as to justify initiating the formal investigation procedure laid down in Article 108(2) TFEU is reflected in the objective existence of serious difficulties which the Commission...