In a somewhat complicated case complex about alleged unfair state aid to Femern A/S, the EU Court in Luxembourg delivered a judgment on Wednesday. And the verdict, through the eyes of both the Danish state and the ferry company Scandlines, is both-and and neither-nor.
On one hand, the Court found that Femern A/S has a competitive advantage due to significant state capital injections, loans, and guarantees. This partially upholds Scandlines’ concerns about a competitive edge for Femern A/S.
Advantage over ferry companies
The Court notes in a press release about the judgments that the state’s construction company, Femern A/S, has competitive advantages from the financing model. These advantages “… strengthen the entity’s (Femern A/S, ed.) position in the market for transport services for crossing the Fehmarn Belt between Rødby and Puttgarden in relation to the companies already active in this market, especially in relation to the ferry companies,” writes the EU Court in a press release about the judgment.
On the other hand, the Court has in another judgment dismissed the accusations that the European Commission made errors in the original approval of the project. Thus, Scandlines’ concerns about the competitive advantage are recognized, but the European Commission’s approval of the project’s financing still stands.
Pan-European interest
The Fehmarn project is indeed “… of pan-European interest, partly because this project constitutes a significant and concrete contribution to the achievement of the Union’s transport policy goals and the Union’s broader objectives, and that it will improve the connection between the Nordic countries and Central Europe. Furthermore, the Court notes that no information has been presented that could cast doubt on the finding that the fixed link is based on the principle that it should be designed, constructed, and operated in such a way that harmful effects on nature and the environment are avoided,” writes the EU Court.
Acquitted of missteps
In a completely third case, filed by Scandlines against the European Commission, the Commission is acquitted of missteps in connection with a complaint case from 2018.
Scandlines immediately acknowledges the Court’s decision but will now further scrutinize the judgment:
Very complex decisions
“We have taken note of the EU Court’s decisions today on the financing of the Fehmarn Belt tunnel. These decisions are very complex, and we will analyze all the details with our advisors in the coming days.
However, the most important thing for us is that the Court confirms that the financing of the Fehmarn Belt tunnel continues to fall under EU state aid rules. … As a result, we believe that our position that future competition with the tunnel can only be fair if it is subject to clear competition rules has been strengthened. This is not only an important signal for us but also for all other ferry operators and ports in the Baltic Sea affected by the Fehmarn Belt tunnel,” writes Scandlines in an email to FemernReport. The practical consequences for the financing of the Fehmarn tunnel, as a result of the judgments, will now be analyzed by the lawyers of the Ministry of Transport.
