Advocate General Clarifies criteria to consider Large Infrastructure Construction and Operation as non-economic activities
Advocate General (AG) Rantos has issued his Opinion in Denmark v Commission (Détroit de Fehmarn) (C-337/24 P), the appeal in which Denmark seeks to overturn the 2024 General Court (GC) judgment confirming the Commission’s finding that public financing for the Fehmarn Belt tunnel project constitutes State aid.
The Fehmarn Belt project involves a Denmark–Germany tunnel built and operated by state-owned Femern A/S. The Commission ruled that Denmark’s public financing constituted State aid, but Denmark argued the tunnel is a non-economic public infrastructure. The GC disagreed, finding the project (both the construction and operation of the tunnel) economic because it will be commercially exploited through user charges, prompting Denmark to appeal.
AG Rantos argues that project developer Femern A/S should not be treated as an “undertaking.” While the Commission and the GC considered Femern’s operation of the tunnel for user charges, and its coexistence with ferry services, as evidence of economic activity, the AG argues that the project’s nature as a strategic, state-driven infrastructure initiative shaped by international and EU-level commitments undermines the claim of genuine commercial operation.
Therefore, the AG proposed setting aside the GC’s ruling and annulling the Commission’s 2020 State aid decision, though he supports the lower court’s dismissal of Denmark’s arguments based on the exercise of public powers.
For more information, see the AG’s opinion.