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Corte di giustizia UEsentenza

Corte di giustizia UE/2018

ECLI:EU:T:2018:1003
Testo integrale del provvedimento

Testo integrale del provvedimento

[OSCURATO:PERSONA] ([OSCURATO:PERSONA])

13 December 2018 ( * ) (Action for failure to act — [OSCURATO:PERSONA] aid — Public financing of the [OSCURATO:PERSONA] fixed road-rail link — Individual aid — Adoption of a position by the [OSCURATO:PERSONA] — Inadmissibility)

[OSCURATO:PERSONA] T‑891/16,

[OSCURATO:PERSONA] ApS, established in Copenhagen (Denmark), [OSCURATO:PERSONA] GmbH, established in Hamburg (Germany), represented by L. Sandberg-Mørch, lawyer, applicants, v

[OSCURATO:PERSONA],

represented by L. Armati and by S. Noë, acting as Agents, defendant, supported by [OSCURATO:PERSONA] of Denmark, represented initially by C. Thorning, and subsequently by J. Nymann-Lindegren, acting as Agents, and by R. Holdgaard, lawyer, intervener, APPLICATION pursuant to [OSCURATO:PERSONA] 265 TFEU for a declaration that the [OSCURATO:PERSONA] acted unlawfully by failing to define its position on aid measures concerning the financing, planning and construction of the [OSCURATO:PERSONA] fixed rail-road link

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]),

composed of G. [OSCURATO:PERSONA], [OSCURATO:PERSONA], D. Spielmann and Z. Csehi (Rapporteur), [OSCURATO:PERSONA], [OSCURATO:PERSONA]: E. Coulon, makes the following [OSCURATO:PERSONA] to the dispute The applicants 1 The applicants, [OSCURATO:PERSONA] ApS and [OSCURATO:PERSONA] GmbH, are part of a ferry operator group founded in 1998 engaged in the transport of passengers, cars, trains and freight.

They operate two ferry routes between Germany and Denmark, that is, respectively, between Puttgarden-Rødby and Rostock-Gedser.

The project and the previous decisions 2 [OSCURATO:PERSONA] between the [OSCURATO:PERSONA] of Denmark and the [OSCURATO:PERSONA] of Germany on a fixed link across the [OSCURATO:PERSONA], signed on 3 September 2008 and ratified in 2009 (‘the international agreement’), approved the project for the [OSCURATO:PERSONA] link between Denmark and Germany (‘the project’). [OSCURATO:PERSONA] consists of infrastructure, namely an immersed tunnel (‘the fixed link’), and rail and road hinterland connections in Denmark. 3 Pursuant to [OSCURATO:PERSONA] 6 of the international agreement and the Lov no° 575 om anlæg og drift af en fast forbindelse over [OSCURATO:PERSONA] med tilhørende landanlæg i [OSCURATO:PERSONA] ([OSCURATO:PERSONA] 575 on the construction and operation of the [OSCURATO:PERSONA] fixed link and [OSCURATO:PERSONA] hinterland connections) of 4 May 2015, two public undertakings have been entrusted with the implementation of the project.

The first, [OSCURATO:PERSONA] A/S, established in 2005, is responsible for the financing, construction and operation of the fixed link and the second, A/S [OSCURATO:PERSONA], established in 2009, is responsible for the construction, operation and financing of the [OSCURATO:PERSONA] hinterland connections. [OSCURATO:PERSONA] is a subsidiary of Sund & [OSCURATO:PERSONA] A/S, which is owned by the [OSCURATO:PERSONA], and [OSCURATO:PERSONA] became a subsidiary of [OSCURATO:PERSONA] following the latter’s establishment in 2009. 4 The project was preceded by a planning phase. [OSCURATO:PERSONA] was given notification of the financing of that phase, in so far as concerns the fixed link and the [OSCURATO:PERSONA] hinterland connections, for reasons of legal certainty. 5 On 13 July 2009, by decision relating to [OSCURATO:PERSONA] aid N 157/2009 — Financing of the planning phase of the [OSCURATO:PERSONA] fixed link (OJ 2009 C 202, p. 2, ‘the planning decision’), the [OSCURATO:PERSONA] concluded, first, that the planning of the fixed link did not constitute an economic activity and, second, that, even if the public financing of the planning phase could potentially benefit the future operator of the fixed link, the measures notified would be compatible with the internal market.

It therefore decided not to raise objections within the meaning of [OSCURATO:PERSONA] 4(2) and (3) of [OSCURATO:PERSONA] (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of [OSCURATO:PERSONA] [108 TFEU] (OJ 1999 L 83, p. 1). 6 On 5 June 2014, the applicants filed a complaint with the [OSCURATO:PERSONA] concerning the financing of the planning, construction and operation of the [OSCURATO:PERSONA] fixed link project (‘the complaint’). 7 On 23 July 2015, following notification of the project financing measures by the [OSCURATO:PERSONA] authorities on 22 December 2014, the [OSCURATO:PERSONA] adopted Decision C(2015) 5023 final on [OSCURATO:PERSONA] aid SA.39078 (2014/N) (Denmark) for the financing of the [OSCURATO:PERSONA] fixed link project (OJ 2015 C 325, p. 5) (‘the construction decision’). 8 The operative part of the construction decision is divided into two parts. – by the first part, the [OSCURATO:PERSONA] concluded that the measures granted to [OSCURATO:PERSONA] for the planning, construction and operation of the road and rail hinterland connections did not constitute [OSCURATO:PERSONA] aid within the meaning of [OSCURATO:PERSONA] 107(1) TFEU; – by the second part, the [OSCURATO:PERSONA] concluded that, even if the measures granted to [OSCURATO:PERSONA] for the planning, construction and operation of the fixed link constituted [OSCURATO:PERSONA] aid within the meaning of [OSCURATO:PERSONA] 107(1) TFEU, they were compatible with the internal market pursuant to [OSCURATO:PERSONA] 107(3)(b) TFEU. 9 On 16 September 2015, the [OSCURATO:PERSONA] sent a copy of that decision to the applicants by letter in which, referring to the complaint, it indicated that it had taken a decision on the measures in question (‘the covering letter’). 10 The construction decision is the subject matter of both the action registered as [OSCURATO:PERSONA] T‑630/15, lodged by the applicants on 10 November 2015, and the action registered as [OSCURATO:PERSONA] T‑631/15, lodged by [OSCURATO:PERSONA] AB on 11 November 2015.

The administrative procedure and the contested measures 11 On 2 August 2016, the applicants sent a letter of formal notice to the [OSCURATO:PERSONA] (‘the letter of formal notice’), asking it to taking steps in respect of certain aid measures which, in their view, had not been addressed by the planning and construction decisions, even though those measures had been referred to in their complaint. 12 The measures at issue (‘the contested measures’) were the following: – first, new aid granted to [OSCURATO:PERSONA] and [OSCURATO:PERSONA] for the planning phase of the fixed link, in the form of capital injections, [OSCURATO:PERSONA] guarantees, [OSCURATO:PERSONA] loans and tax advantages; and – second, additional [OSCURATO:PERSONA] aid granted to [OSCURATO:PERSONA] for the construction phase of the fixed link, in the form of non-commercial railway charges paid by [OSCURATO:PERSONA] (DSB), the existing [OSCURATO:PERSONA]-owned railway operator, and the free use of [OSCURATO:PERSONA]-owned property, namely marine areas and parts of the seabed to be used for the construction of the fixed link.

The letter adopting a position 13 By letter of 30 September 2016 (‘the letter adopting a position’), the [OSCURATO:PERSONA] replied to the letter of formal notice. 14 The conclusions to the letter adopting a position are in two parts: – by the first part, the [OSCURATO:PERSONA] states that the applicants’ claims concerning the railway charges and the use of [OSCURATO:PERSONA]-owned property had already been addressed by the construction decision; – by the second part, the [OSCURATO:PERSONA] stated that the evidence put forward by the applicants as regards the tax measures and the alleged misuse of aid during the planning phase was not sufficient to show, prima facie, that the aid granted was unlawful, and requested the applicants to submit their comments within one month.

Events after the letter adopting a position 15 The applicants replied to the letter adopting a position on 30 October 2016. 16 On 12 December 2016, in addition to bringing the present action for a declaration that the [OSCURATO:PERSONA] acted unlawfully by failing to act on the complaint and the letter of formal notice, the applicants brought an action registered as [OSCURATO:PERSONA] T‑890/16 for annulment of the letter adopting a position in the event that that letter is deemed to constitute the definition of a position within the meaning of [OSCURATO:PERSONA] 265 TFEU. 17 On 16 May 2017, with regard to the aid measures in the form of railway charges and the free use of [OSCURATO:PERSONA]-owned property, the applicants put forward new pleas in [OSCURATO:PERSONA] T‑630/15, alleging that in the event that the [OSCURATO:PERSONA] should share the position adopted by the [OSCURATO:PERSONA] in the letter adopting a position and in its defence in [OSCURATO:PERSONA] T‑890/16, namely that the construction decision had addressed both those measures, it should also annul that decision in so far as it relates to those two measures. [OSCURATO:PERSONA] and forms of order sought 18 By application lodged at the [OSCURATO:PERSONA] on 12 December 2016, the applicants brought the present action. 19 On 27 March 2017, the [OSCURATO:PERSONA] lodged its defence.

The reply and the rejoinder were lodged within the periods prescribed. 20 By document lodged at the [OSCURATO:PERSONA] on 20 April 2017, the [OSCURATO:PERSONA] of Denmark sought leave to intervene in the present proceedings in support of the [OSCURATO:PERSONA].

By order of 3 July 2017, the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] granted leave to intervene. [OSCURATO:PERSONA] of Denmark lodged its statement in intervention and the other parties lodged their observations on the statement within the periods prescribed. 21 By separate document lodged at the [OSCURATO:PERSONA] on 26 May 2016, the applicants made an application for confidential treatment with regard to the [OSCURATO:PERSONA] of Denmark.

On the same day, the applicants also lodged a non-confidential version of the application. 22 The applicants claim that the [OSCURATO:PERSONA] should: – declare the action admissible; – declare that the [OSCURATO:PERSONA] failed to define its position, in breach of [OSCURATO:PERSONA] 265 TFEU; – order the [OSCURATO:PERSONA] to pay the costs. 23 [OSCURATO:PERSONA], supported by the [OSCURATO:PERSONA], contends that the [OSCURATO:PERSONA] should: – dismiss the application; – order the applicants to pay the costs.

Law 24 As regards the admissibility of the action, first of all, the applicants maintain that they are directly and individually concerned by the act which the [OSCURATO:PERSONA] failed to adopt and have an interest in it being declared that the [OSCURATO:PERSONA] failed to act. [OSCURATO:PERSONA], they submit that they sent a valid letter of formal notice to the [OSCURATO:PERSONA] for the purpose of [OSCURATO:PERSONA] 265 TFEU.

Finally, the applicants contend that, when the [OSCURATO:PERSONA] was formally requested to define its position within the meaning of [OSCURATO:PERSONA] 265 TFEU, it was incumbent upon it to act, as required by Articles 12(1), 15(1) and 24(2) of [OSCURATO:PERSONA] (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of [OSCURATO:PERSONA] 108 [TFEU] (OJ 2015 L 248, p. 9). 25 As to whether the action is well founded, the applicants put forward seven pleas in law.

The first and second pleas allege that the [OSCURATO:PERSONA] omitted to act with regard to the potential overcompensation which the non-commercial railway charges to be paid by DSB, the [OSCURATO:PERSONA] national railway operator, to [OSCURATO:PERSONA] for use of the fixed link would entail and the grant of [OSCURATO:PERSONA] aid to [OSCURATO:PERSONA] in the form of the free use of [OSCURATO:PERSONA]-owned property for the construction of the fixed link.

The third to seventh pleas allege that the [OSCURATO:PERSONA] omitted to act with regard to the grant to [OSCURATO:PERSONA] and [OSCURATO:PERSONA], as the case may be, of a number of aid measures which were not authorised in the planning decision. 26 Those seven pleas are all based on the following line of argument. 27 In the first place, the applicants state that, in the complaint, they contended that those seven aid measures should not exist. 28 In the second place, the applicants state that, over of period spanning more than 26 months, the [OSCURATO:PERSONA] failed to complete its preliminary examination in relation to those measures, namely the period that elapsed between the complaint and the letter of formal notice. 29 In the third place, in accordance with Articles 12(1), 15(1) and 24(2) of [OSCURATO:PERSONA] 2015/1589, the [OSCURATO:PERSONA] was required to set in motion the preliminary examination stage without delay, which should have led it either to inform the applicants that there were insufficient grounds for taking a view on the case or, in any event to adopt a decision under [OSCURATO:PERSONA] 4(2), (3) or (4) of [OSCURATO:PERSONA] 2015/1589. 30 [OSCURATO:PERSONA], the [OSCURATO:PERSONA] authorities did not give notification of the contested measures, which, moreover, were not mentioned, let alone examined, in the construction decision, in so far as concerns the first two measures, or in the planning decision, with regard to the five other measures.

Moreover, in the letter adopting a position, the [OSCURATO:PERSONA] simply stated, in general terms, that those measures had already been examined, respectively, in the construction decision or in the planning decision.

The applicants also submit that, as regards the first two pleas, the [OSCURATO:PERSONA] changed its position on whether it was the construction decision or the letter adopting a position which, in its view, contained a definition of its position in relation to the two measures in question. 31 [OSCURATO:PERSONA], supported by the [OSCURATO:PERSONA] of Denmark, disputes the applicants’ arguments and contends that the action is inadmissible, on the ground that it defined its position in relation to the contested measures. 32 [OSCURATO:PERSONA] 129 of its Rules of [OSCURATO:PERSONA], on a proposal from the Judge-Rapporteur, the [OSCURATO:PERSONA] may, of its own motion at any time after hearing the main parties, decide to rule by reasoned order on whether there exists any absolute bar to proceeding with a case.

In the present case, the [OSCURATO:PERSONA] considers that it has sufficient information from the material in the file and has decided to give a decision without taking further steps in the proceedings. 33 As a preliminary point, it should be noted that [OSCURATO:PERSONA] 265 TFEU is worded as follows: ‘Should the [OSCURATO:PERSONA], the [OSCURATO:PERSONA], the [OSCURATO:PERSONA], the [OSCURATO:PERSONA] or the [OSCURATO:PERSONA], in infringement of the Treaties, fail to act, the [OSCURATO:PERSONA] and the other institutions of the [OSCURATO:PERSONA] may bring an action before the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA] to have the infringement established. [OSCURATO:PERSONA] shall apply, under the same conditions, to bodies, offices and agencies of the [OSCURATO:PERSONA] which fail to act.

The action shall be admissible only if the institution, body, office or agency concerned has first been called upon to act.

If, within two months of being so called upon, the institution, body, office or agency concerned has not defined its position, the action may be brought within a further period of two months.

Any natural or legal person may, under the conditions laid down in the preceding paragraphs, complain to the [OSCURATO:PERSONA] that an institution, body, office or agency of the [OSCURATO:PERSONA] has failed to address to that person any act other than a recommendation or an opinion.’ 34 Furthermore, with regard to the obligation upon the [OSCURATO:PERSONA] to act in relation to the grant of unlawful aid or the misuse of aid, it is appropriate to refer to the content of the relevant provisions of [OSCURATO:PERSONA] 2015/1589. 35 First of all, the second subparagraph of [OSCURATO:PERSONA] 12(1) of [OSCURATO:PERSONA] 2015/1589 states as follows: ‘[OSCURATO:PERSONA] shall examine without undue delay any complaint submitted by any interested party in accordance with [OSCURATO:PERSONA] 24(2) and shall ensure that the [OSCURATO:PERSONA] concerned is kept fully and regularly informed of the progress and outcome of the examination.’ 36 [OSCURATO:PERSONA], [OSCURATO:PERSONA] 24(2) of [OSCURATO:PERSONA] 2015/1589 provides as follows: ‘Any interested party may submit a complaint to inform the [OSCURATO:PERSONA] of any alleged unlawful aid or any alleged misuse of aid.

To that effect, the interested party shall duly complete a form that has been set out in an implementing provision referred to in [OSCURATO:PERSONA] 33 and shall provide the mandatory information requested therein.

Where the [OSCURATO:PERSONA] considers that the interested party does not comply with the compulsory complaint form, or that the facts and points of law put forward by the interested party do not provide sufficient grounds to show, on the basis of a prima facie examination, the existence of unlawful aid or misuse of aid, it shall inform the interested party thereof and call upon it to submit comments within a prescribed period which shall not normally exceed one month.

If the interested party fails to make known its views within the prescribed period, the complaint shall be deemed to have been withdrawn. [OSCURATO:PERSONA] shall inform the [OSCURATO:PERSONA] concerned when a complaint has been deemed to have been withdrawn. [OSCURATO:PERSONA] shall send a copy of the decision on a case concerning the subject matter of the complaint to the complainant.’ 37 [OSCURATO:PERSONA], [OSCURATO:PERSONA] 15(1) of [OSCURATO:PERSONA] 2015/1589 provides as follows: ‘The examination of possible unlawful aid shall result in a decision pursuant to [OSCURATO:PERSONA] 4(2), (3) or (4).

In the case of decisions to initiate the formal investigation procedure, proceedings shall be closed by means of a decision pursuant to [OSCURATO:PERSONA] 9 …’ 38 It is in the light of those provisions that it is necessary to examine whether the conditions laid down in [OSCURATO:PERSONA] 265 TFEU are satisfied in the present case and, in particular, to ascertain whether the letter adopting a position, which also forms the subject matter of the applicant’s action for annulment registered as [OSCURATO:PERSONA] T‑890/16, constitutes a genuine ‘definition of a position’ in relation to the applicants’ letter of formal notice. 39 Before proceeding with that examination, it will be useful to set out below the relevant stages of the administrative procedure: – on 5 June 2014, the applicants lodged the complaint; – on 23 July 2015, the [OSCURATO:PERSONA] adopted the construction decision, which, on 16 September 2015, was sent to the applicants under the covering letter; – on 2 August 2016, the applicants gave the [OSCURATO:PERSONA] formal notice to define its position, in accordance with [OSCURATO:PERSONA] 265 TFEU; – on 30 September 2016, the [OSCURATO:PERSONA] replied to the applicants’ letter of formal notice; – on 30 October 2016, the applicants replied to that letter. 40 First, it should be noted that the [OSCURATO:PERSONA]’s reply to the letter of formal notice was sent within the two-month period laid down in [OSCURATO:PERSONA] 265 TFEU, which is, moreover, not disputed. 41 Second, the covering letter addressed the complaint and stated, referring to the construction decision, that the [OSCURATO:PERSONA] had ‘adopted a decision concerning the measures in question’.

It is therefore clear that the [OSCURATO:PERSONA] had adopted a definitive position on the complaint, irrespective of the merits of that position. 42 Third, as the [OSCURATO:PERSONA] observed, the letter of formal notice does not contain any reference to information or analyses which had not already been put forward in the complaint.

In that letter, the applicants first of all refer to the aid measures contested in the complaint, go on to criticise the [OSCURATO:PERSONA] for not having acted in relation to the contested measures and, finally, call upon it to act within the meaning of [OSCURATO:PERSONA] 265 TFEU. 43 Fourth, it should be noted that, in the letter of formal notice, the applicants made a distinction between (i) the railway charges and the free use of [OSCURATO:PERSONA]-owned property, which were not covered by the construction decision, and (ii) the other contested measures, in respect of which they allege that the [OSCURATO:PERSONA] authorities misused aid authorised by the planning decision. 44 By the letter adopting a position, the [OSCURATO:PERSONA] also made a distinction between those two types of measure.

First, it concluded that the railway charges and the free use of [OSCURATO:PERSONA]-owned property had been taken into account in the construction decision and that, accordingly, it had not failed to make a decision in that regard.

Second, it stated that, under [OSCURATO:PERSONA] 20 of [OSCURATO:PERSONA] 2015/1589, it was not obliged to act in respect of the misuse of aid, and rejected the applicants’ claims, in so far as they alleged that unlawful new aid had been granted, on the ground that the contested measures had been taken into account by the planning decision or, in any event, the construction decision.

It concluded by informing the applicants of its preliminary position that there were insufficient grounds for it to be concluded that the alleged aid measures entailed the grant of unlawful aid and invited them to submit their comments. 45 It is in the light of the above factors that the [OSCURATO:PERSONA] must ascertain whether the [OSCURATO:PERSONA] genuinely defined its ‘position’ for the purpose of [OSCURATO:PERSONA] 265 TFEU. 46 With regard, in the first place, to the railway charges and the free use of [OSCURATO:PERSONA]-owned property, it should be recalled that those measures were covered by the applicants’ complaint and that, by the covering letter enclosing the construction decision, the [OSCURATO:PERSONA] informed the applicants, albeit extremely succinctly, that it had examined the measures concerned by the complaint in that decision (see paragraph 41 above).

The applicants were therefore in a position to verify whether the [OSCURATO:PERSONA] had given an exhaustive answer to their complaint. 47 As indicated in paragraph 10 above, the applicants have challenged that decision in [OSCURATO:PERSONA] T‑630/15, without claiming, however, when that action was brought, that the two measures in question have not been examined (see paragraph 17 above).

It is only with the letter of formal notice, which postdates the construction decision by more than a year and the covering letter enclosing that decision by almost 11 months, that they claimed that the [OSCURATO:PERSONA] had failed to examine those measures. 48 In those circumstances, it is clear, with regard to those two measures, that the letter in which the [OSCURATO:PERSONA] adopted a position — irrespective of its merits — is a confirmatory measure, which cannot form the subject matter of an action for annulment, and at the same time constitutes a valid definition of its position within the meaning of [OSCURATO:PERSONA] 265 TFEU (see, to that effect, order of 9 January 2012,

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

, T‑407/09, not published, EU:T:2012:1, paragraphs 29 to 34 and 40 and the case-law cited). 49 As regards, in the second place, the other contested measures, which, it is alleged, were granted in breach of the planning decision, it should be noted that in the letter adopting a position the [OSCURATO:PERSONA] concluded that the facts and points of law put forward by the applicants did not provide sufficient grounds to show, on the basis of a prima facie examination, the existence of unlawful aid, and invited the applicants to submit their comments within one month, which the applicants did by letter of 30 October 2016. 50 It is therefore clear, with regard to the latter measures, that the letter adopting a position constitutes a preliminary decision for the purpose of the second subparagraph of [OSCURATO:PERSONA] 24(2) of [OSCURATO:PERSONA] 2015/1589.

Although it cannot form the subject matter of an action for annulment, that letter constitutes a valid definition of a position within the meaning of [OSCURATO:PERSONA] 265 TFEU. 51 That conclusion is not affected by the applicants’ arguments. 52 First of all, the fact that 26 months elapsed between the complaint and the letter of formal notice is irrelevant, given that what matters is the fact that the [OSCURATO:PERSONA] adopted a position following the formal notice given by the applicants and before the action was brought in the present case.

Moreover, during the period in question, the [OSCURATO:PERSONA] answered the complaint by the construction decision and the covering letter enclosing that decision. 53 [OSCURATO:PERSONA], and in any event, the applicants have failed to show that, in the circumstances of the present case, the [OSCURATO:PERSONA] was required to initiate the formal investigation procedure.

On the contrary, by its letter adopting a position, it followed the complaints handling procedure laid down in [OSCURATO:PERSONA] 24(2) of [OSCURATO:PERSONA] 2015/1589 correctly. 54 Finally, the argument that the [OSCURATO:PERSONA] was not given notification of the contested measures and that they were not examined or approved by it is irrelevant.

That argument relates to whether, in the construction decision, the [OSCURATO:PERSONA] examined those measures, or should have examined them and failed to adopt a position, which is relevant to the merits of the action, not its admissibility, and should have been raised when the action for annulment of that decision was lodged or, as the case may be, at the time of the covering letter. 55 It must therefore be concluded that the [OSCURATO:PERSONA] adopted a valid definition of its position within the meaning of [OSCURATO:PERSONA] 265 TFEU before the present action was brought.

Accordingly, that action must be dismissed as inadmissible Costs 56 [OSCURATO:PERSONA] 134(1) of the Rules of [OSCURATO:PERSONA], the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

As the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the [OSCURATO:PERSONA]. 57 [OSCURATO:PERSONA] 138(1) of the Rules of [OSCURATO:PERSONA], [OSCURATO:PERSONA] which have intervened in the proceedings are to bear their own costs.

On those grounds,

[OSCURATO:PERSONA] ([OSCURATO:PERSONA])

hereby orders: 1. The action is dismissed as inadmissible;

2. [OSCURATO:PERSONA] ApS and [OSCURATO:PERSONA] GmbH are to bear their own costs and to pay the costs incurred by the [OSCURATO:PERSONA];

3. [OSCURATO:PERSONA] of Denmark is to bear its own costs. Luxembourg, 13 December 2018. E. Coulon

G. [OSCURATO:PERSONA]

* Language of the case: English.

Anonimizzato ex art. 52 D.Lgs. 196/2003
[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 13 December 2018 ( * ) (Action for failure to act — [OSCURATO:PERSONA] aid — Public financing of the [OSCURATO:PERSONA] fixed road-rail link — Individual aid — Adoption of a position by the [OSCURATO:PERSONA] — Inadmissibility) [OSCURATO:PERSONA] T‑891/16, [OSCURATO:PERSONA] ApS, established in Copenhagen (Denmark), [OSCURATO:PERSONA] GmbH, established in Hamburg (Germany), represented by L. Sandberg-Mørch, lawyer, applicants, v [OSCURATO:PERSONA], represented by L. Armati and by S. Noë, acting as Agents, defendant, supported by [OSCURATO:PERSONA] of Denmark, represented initially by C. Thorning, and subsequently by J. Nymann-Lindegren, acting as Agents, and by R. Holdgaard, lawyer, intervener, APPLICATION pursuant to [OSCURATO:PERSONA] 265 TFEU for a declaration that the [OSCURATO:PERSONA] acted unlawfully by failing to define its position on aid measures concerning the financing, planning and construction of the [OSCURATO:PERSONA] fixed rail-road link [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of G. [OSCURATO:PERSONA], [OSCURATO:PERSONA], D. Spielmann and Z. Csehi (Rapporteur), [OSCURATO:PERSONA], [OSCURATO:PERSONA]: E. Coulon, makes the following [OSCURATO:PERSONA] to the dispute The applicants 1 The applicants, [OSCURATO:PERSONA] ApS and [OSCURATO:PERSONA] GmbH, are part of a ferry operator group founded in 1998 engaged in the transport of passengers, cars, trains and freight. They operate two ferry routes between Germany and Denmark, that is, respectively, between Puttgarden-Rødby and Rostock-Gedser. The project and the previous decisions 2 [OSCURATO:PERSONA] between the [OSCURATO:PERSONA] of Denmark and the [OSCURATO:PERSONA] of Germany on a fixed link across the [OSCURATO:PERSONA], signed on 3 September 2008 and ratified in 2009 (‘the international agreement’), approved the project for the [OSCURATO:PERSONA] link between Denmark and Germany (‘the project’). [OSCURATO:PERSONA] consists of infrastructure, namely an immersed tunnel (‘the fixed link’), and rail and road hinterland connections in Denmark. 3 Pursuant to [OSCURATO:PERSONA] 6 of the international agreement and the Lov no° 575 om anlæg og drift af en fast forbindelse over [OSCURATO:PERSONA] med tilhørende landanlæg i [OSCURATO:PERSONA] ([OSCURATO:PERSONA] 575 on the construction and operation of the [OSCURATO:PERSONA] fixed link and [OSCURATO:PERSONA] hinterland connections) of 4 May 2015, two public undertakings have been entrusted with the implementation of the project. The first, [OSCURATO:PERSONA] A/S, established in 2005, is responsible for the financing, construction and operation of the fixed link and the second, A/S [OSCURATO:PERSONA], established in 2009, is responsible for the construction, operation and financing of the [OSCURATO:PERSONA] hinterland connections. [OSCURATO:PERSONA] is a subsidiary of Sund & [OSCURATO:PERSONA] A/S, which is owned by the [OSCURATO:PERSONA], and [OSCURATO:PERSONA] became a subsidiary of [OSCURATO:PERSONA] following the latter’s establishment in 2009. 4 The project was preceded by a planning phase. [OSCURATO:PERSONA] was given notification of the financing of that phase, in so far as concerns the fixed link and the [OSCURATO:PERSONA] hinterland connections, for reasons of legal certainty. 5 On 13 July 2009, by decision relating to [OSCURATO:PERSONA] aid N 157/2009 — Financing of the planning phase of the [OSCURATO:PERSONA] fixed link (OJ 2009 C 202, p. 2, ‘the planning decision’), the [OSCURATO:PERSONA] concluded, first, that the planning of the fixed link did not constitute an economic activity and, second, that, even if the public financing of the planning phase could potentially benefit the future operator of the fixed link, the measures notified would be compatible with the internal market. It therefore decided not to raise objections within the meaning of [OSCURATO:PERSONA] 4(2) and (3) of [OSCURATO:PERSONA] (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of [OSCURATO:PERSONA] [108 TFEU] (OJ 1999 L 83, p. 1). 6 On 5 June 2014, the applicants filed a complaint with the [OSCURATO:PERSONA] concerning the financing of the planning, construction and operation of the [OSCURATO:PERSONA] fixed link project (‘the complaint’). 7 On 23 July 2015, following notification of the project financing measures by the [OSCURATO:PERSONA] authorities on 22 December 2014, the [OSCURATO:PERSONA] adopted Decision C(2015) 5023 final on [OSCURATO:PERSONA] aid SA.39078 (2014/N) (Denmark) for the financing of the [OSCURATO:PERSONA] fixed link project (OJ 2015 C 325, p. 5) (‘the construction decision’). 8 The operative part of the construction decision is divided into two parts. –        by the first part, the [OSCURATO:PERSONA] concluded that the measures granted to [OSCURATO:PERSONA] for the planning, construction and operation of the road and rail hinterland connections did not constitute [OSCURATO:PERSONA] aid within the meaning of [OSCURATO:PERSONA] 107(1) TFEU; –        by the second part, the [OSCURATO:PERSONA] concluded that, even if the measures granted to [OSCURATO:PERSONA] for the planning, construction and operation of the fixed link constituted [OSCURATO:PERSONA] aid within the meaning of [OSCURATO:PERSONA] 107(1) TFEU, they were compatible with the internal market pursuant to [OSCURATO:PERSONA] 107(3)(b) TFEU. 9 On 16 September 2015, the [OSCURATO:PERSONA] sent a copy of that decision to the applicants by letter in which, referring to the complaint, it indicated that it had taken a decision on the measures in question (‘the covering letter’). 10 The construction decision is the subject matter of both the action registered as [OSCURATO:PERSONA] T‑630/15, lodged by the applicants on 10 November 2015, and the action registered as [OSCURATO:PERSONA] T‑631/15, lodged by [OSCURATO:PERSONA] AB on 11 November 2015. The administrative procedure and the contested measures 11 On 2 August 2016, the applicants sent a letter of formal notice to the [OSCURATO:PERSONA] (‘the letter of formal notice’), asking it to taking steps in respect of certain aid measures which, in their view, had not been addressed by the planning and construction decisions, even though those measures had been referred to in their complaint. 12 The measures at issue (‘the contested measures’) were the following: –        first, new aid granted to [OSCURATO:PERSONA] and [OSCURATO:PERSONA] for the planning phase of the fixed link, in the form of capital injections, [OSCURATO:PERSONA] guarantees, [OSCURATO:PERSONA] loans and tax advantages; and –        second, additional [OSCURATO:PERSONA] aid granted to [OSCURATO:PERSONA] for the construction phase of the fixed link, in the form of non-commercial railway charges paid by [OSCURATO:PERSONA] (DSB), the existing [OSCURATO:PERSONA]-owned railway operator, and the free use of [OSCURATO:PERSONA]-owned property, namely marine areas and parts of the seabed to be used for the construction of the fixed link. The letter adopting a position 13 By letter of 30 September 2016 (‘the letter adopting a position’), the [OSCURATO:PERSONA] replied to the letter of formal notice. 14 The conclusions to the letter adopting a position are in two parts: –        by the first part, the [OSCURATO:PERSONA] states that the applicants’ claims concerning the railway charges and the use of [OSCURATO:PERSONA]-owned property had already been addressed by the construction decision; –        by the second part, the [OSCURATO:PERSONA] stated that the evidence put forward by the applicants as regards the tax measures and the alleged misuse of aid during the planning phase was not sufficient to show, prima facie, that the aid granted was unlawful, and requested the applicants to submit their comments within one month. Events after the letter adopting a position 15 The applicants replied to the letter adopting a position on 30 October 2016. 16 On 12 December 2016, in addition to bringing the present action for a declaration that the [OSCURATO:PERSONA] acted unlawfully by failing to act on the complaint and the letter of formal notice, the applicants brought an action registered as [OSCURATO:PERSONA] T‑890/16 for annulment of the letter adopting a position in the event that that letter is deemed to constitute the definition of a position within the meaning of [OSCURATO:PERSONA] 265 TFEU. 17 On 16 May 2017, with regard to the aid measures in the form of railway charges and the free use of [OSCURATO:PERSONA]-owned property, the applicants put forward new pleas in [OSCURATO:PERSONA] T‑630/15, alleging that in the event that the [OSCURATO:PERSONA] should share the position adopted by the [OSCURATO:PERSONA] in the letter adopting a position and in its defence in [OSCURATO:PERSONA] T‑890/16, namely that the construction decision had addressed both those measures, it should also annul that decision in so far as it relates to those two measures. [OSCURATO:PERSONA] and forms of order sought 18 By application lodged at the [OSCURATO:PERSONA] on 12 December 2016, the applicants brought the present action. 19 On 27 March 2017, the [OSCURATO:PERSONA] lodged its defence. The reply and the rejoinder were lodged within the periods prescribed. 20 By document lodged at the [OSCURATO:PERSONA] on 20 April 2017, the [OSCURATO:PERSONA] of Denmark sought leave to intervene in the present proceedings in support of the [OSCURATO:PERSONA]. By order of 3 July 2017, the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] granted leave to intervene. [OSCURATO:PERSONA] of Denmark lodged its statement in intervention and the other parties lodged their observations on the statement within the periods prescribed. 21 By separate document lodged at the [OSCURATO:PERSONA] on 26 May 2016, the applicants made an application for confidential treatment with regard to the [OSCURATO:PERSONA] of Denmark. On the same day, the applicants also lodged a non-confidential version of the application. 22 The applicants claim that the [OSCURATO:PERSONA] should: –        declare the action admissible; –        declare that the [OSCURATO:PERSONA] failed to define its position, in breach of [OSCURATO:PERSONA] 265 TFEU; –        order the [OSCURATO:PERSONA] to pay the costs. 23 [OSCURATO:PERSONA], supported by the [OSCURATO:PERSONA], contends that the [OSCURATO:PERSONA] should: –        dismiss the application; –        order the applicants to pay the costs. Law 24 As regards the admissibility of the action, first of all, the applicants maintain that they are directly and individually concerned by the act which the [OSCURATO:PERSONA] failed to adopt and have an interest in it being declared that the [OSCURATO:PERSONA] failed to act. [OSCURATO:PERSONA], they submit that they sent a valid letter of formal notice to the [OSCURATO:PERSONA] for the purpose of [OSCURATO:PERSONA] 265 TFEU. Finally, the applicants contend that, when the [OSCURATO:PERSONA] was formally requested to define its position within the meaning of [OSCURATO:PERSONA] 265 TFEU, it was incumbent upon it to act, as required by Articles 12(1), 15(1) and 24(2) of [OSCURATO:PERSONA] (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of [OSCURATO:PERSONA] 108 [TFEU] (OJ 2015 L 248, p. 9). 25 As to whether the action is well founded, the applicants put forward seven pleas in law. The first and second pleas allege that the [OSCURATO:PERSONA] omitted to act with regard to the potential overcompensation which the non-commercial railway charges to be paid by DSB, the [OSCURATO:PERSONA] national railway operator, to [OSCURATO:PERSONA] for use of the fixed link would entail and the grant of [OSCURATO:PERSONA] aid to [OSCURATO:PERSONA] in the form of the free use of [OSCURATO:PERSONA]-owned property for the construction of the fixed link. The third to seventh pleas allege that the [OSCURATO:PERSONA] omitted to act with regard to the grant to [OSCURATO:PERSONA] and [OSCURATO:PERSONA], as the case may be, of a number of aid measures which were not authorised in the planning decision. 26 Those seven pleas are all based on the following line of argument. 27 In the first place, the applicants state that, in the complaint, they contended that those seven aid measures should not exist. 28 In the second place, the applicants state that, over of period spanning more than 26 months, the [OSCURATO:PERSONA] failed to complete its preliminary examination in relation to those measures, namely the period that elapsed between the complaint and the letter of formal notice. 29 In the third place, in accordance with Articles 12(1), 15(1) and 24(2) of [OSCURATO:PERSONA] 2015/1589, the [OSCURATO:PERSONA] was required to set in motion the preliminary examination stage without delay, which should have led it either to inform the applicants that there were insufficient grounds for taking a view on the case or, in any event to adopt a decision under [OSCURATO:PERSONA] 4(2), (3) or (4) of [OSCURATO:PERSONA] 2015/1589. 30 [OSCURATO:PERSONA], the [OSCURATO:PERSONA] authorities did not give notification of the contested measures, which, moreover, were not mentioned, let alone examined, in the construction decision, in so far as concerns the first two measures, or in the planning decision, with regard to the five other measures. Moreover, in the letter adopting a position, the [OSCURATO:PERSONA] simply stated, in general terms, that those measures had already been examined, respectively, in the construction decision or in the planning decision. The applicants also submit that, as regards the first two pleas, the [OSCURATO:PERSONA] changed its position on whether it was the construction decision or the letter adopting a position which, in its view, contained a definition of its position in relation to the two measures in question. 31 [OSCURATO:PERSONA], supported by the [OSCURATO:PERSONA] of Denmark, disputes the applicants’ arguments and contends that the action is inadmissible, on the ground that it defined its position in relation to the contested measures. 32 [OSCURATO:PERSONA] 129 of its Rules of [OSCURATO:PERSONA], on a proposal from the Judge-Rapporteur, the [OSCURATO:PERSONA] may, of its own motion at any time after hearing the main parties, decide to rule by reasoned order on whether there exists any absolute bar to proceeding with a case. In the present case, the [OSCURATO:PERSONA] considers that it has sufficient information from the material in the file and has decided to give a decision without taking further steps in the proceedings. 33 As a preliminary point, it should be noted that [OSCURATO:PERSONA] 265 TFEU is worded as follows: ‘Should the [OSCURATO:PERSONA], the [OSCURATO:PERSONA], the [OSCURATO:PERSONA], the [OSCURATO:PERSONA] or the [OSCURATO:PERSONA], in infringement of the Treaties, fail to act, the [OSCURATO:PERSONA] and the other institutions of the [OSCURATO:PERSONA] may bring an action before the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA] to have the infringement established. [OSCURATO:PERSONA] shall apply, under the same conditions, to bodies, offices and agencies of the [OSCURATO:PERSONA] which fail to act. The action shall be admissible only if the institution, body, office or agency concerned has first been called upon to act. If, within two months of being so called upon, the institution, body, office or agency concerned has not defined its position, the action may be brought within a further period of two months. Any natural or legal person may, under the conditions laid down in the preceding paragraphs, complain to the [OSCURATO:PERSONA] that an institution, body, office or agency of the [OSCURATO:PERSONA] has failed to address to that person any act other than a recommendation or an opinion.’ 34 Furthermore, with regard to the obligation upon the [OSCURATO:PERSONA] to act in relation to the grant of unlawful aid or the misuse of aid, it is appropriate to refer to the content of the relevant provisions of [OSCURATO:PERSONA] 2015/1589. 35 First of all, the second subparagraph of [OSCURATO:PERSONA] 12(1) of [OSCURATO:PERSONA] 2015/1589 states as follows: ‘[OSCURATO:PERSONA] shall examine without undue delay any complaint submitted by any interested party in accordance with [OSCURATO:PERSONA] 24(2) and shall ensure that the [OSCURATO:PERSONA] concerned is kept fully and regularly informed of the progress and outcome of the examination.’ 36 [OSCURATO:PERSONA], [OSCURATO:PERSONA] 24(2) of [OSCURATO:PERSONA] 2015/1589 provides as follows: ‘Any interested party may submit a complaint to inform the [OSCURATO:PERSONA] of any alleged unlawful aid or any alleged misuse of aid. To that effect, the interested party shall duly complete a form that has been set out in an implementing provision referred to in [OSCURATO:PERSONA] 33 and shall provide the mandatory information requested therein. Where the [OSCURATO:PERSONA] considers that the interested party does not comply with the compulsory complaint form, or that the facts and points of law put forward by the interested party do not provide sufficient grounds to show, on the basis of a prima facie examination, the existence of unlawful aid or misuse of aid, it shall inform the interested party thereof and call upon it to submit comments within a prescribed period which shall not normally exceed one month. If the interested party fails to make known its views within the prescribed period, the complaint shall be deemed to have been withdrawn. [OSCURATO:PERSONA] shall inform the [OSCURATO:PERSONA] concerned when a complaint has been deemed to have been withdrawn. [OSCURATO:PERSONA] shall send a copy of the decision on a case concerning the subject matter of the complaint to the complainant.’ 37 [OSCURATO:PERSONA], [OSCURATO:PERSONA] 15(1) of [OSCURATO:PERSONA] 2015/1589 provides as follows: ‘The examination of possible unlawful aid shall result in a decision pursuant to [OSCURATO:PERSONA] 4(2), (3) or (4). In the case of decisions to initiate the formal investigation procedure, proceedings shall be closed by means of a decision pursuant to [OSCURATO:PERSONA] 9 …’ 38 It is in the light of those provisions that it is necessary to examine whether the conditions laid down in [OSCURATO:PERSONA] 265 TFEU are satisfied in the present case and, in particular, to ascertain whether the letter adopting a position, which also forms the subject matter of the applicant’s action for annulment registered as [OSCURATO:PERSONA] T‑890/16, constitutes a genuine ‘definition of a position’ in relation to the applicants’ letter of formal notice. 39 Before proceeding with that examination, it will be useful to set out below the relevant stages of the administrative procedure: –        on 5 June 2014, the applicants lodged the complaint; –        on 23 July 2015, the [OSCURATO:PERSONA] adopted the construction decision, which, on 16 September 2015, was sent to the applicants under the covering letter; –        on 2 August 2016, the applicants gave the [OSCURATO:PERSONA] formal notice to define its position, in accordance with [OSCURATO:PERSONA] 265 TFEU; –        on 30 September 2016, the [OSCURATO:PERSONA] replied to the applicants’ letter of formal notice; –        on 30 October 2016, the applicants replied to that letter. 40 First, it should be noted that the [OSCURATO:PERSONA]’s reply to the letter of formal notice was sent within the two-month period laid down in [OSCURATO:PERSONA] 265 TFEU, which is, moreover, not disputed. 41 Second, the covering letter addressed the complaint and stated, referring to the construction decision, that the [OSCURATO:PERSONA] had ‘adopted a decision concerning the measures in question’. It is therefore clear that the [OSCURATO:PERSONA] had adopted a definitive position on the complaint, irrespective of the merits of that position. 42 Third, as the [OSCURATO:PERSONA] observed, the letter of formal notice does not contain any reference to information or analyses which had not already been put forward in the complaint. In that letter, the applicants first of all refer to the aid measures contested in the complaint, go on to criticise the [OSCURATO:PERSONA] for not having acted in relation to the contested measures and, finally, call upon it to act within the meaning of [OSCURATO:PERSONA] 265 TFEU. 43 Fourth, it should be noted that, in the letter of formal notice, the applicants made a distinction between (i) the railway charges and the free use of [OSCURATO:PERSONA]-owned property, which were not covered by the construction decision, and (ii) the other contested measures, in respect of which they allege that the [OSCURATO:PERSONA] authorities misused aid authorised by the planning decision. 44 By the letter adopting a position, the [OSCURATO:PERSONA] also made a distinction between those two types of measure. First, it concluded that the railway charges and the free use of [OSCURATO:PERSONA]-owned property had been taken into account in the construction decision and that, accordingly, it had not failed to make a decision in that regard. Second, it stated that, under [OSCURATO:PERSONA] 20 of [OSCURATO:PERSONA] 2015/1589, it was not obliged to act in respect of the misuse of aid, and rejected the applicants’ claims, in so far as they alleged that unlawful new aid had been granted, on the ground that the contested measures had been taken into account by the planning decision or, in any event, the construction decision. It concluded by informing the applicants of its preliminary position that there were insufficient grounds for it to be concluded that the alleged aid measures entailed the grant of unlawful aid and invited them to submit their comments. 45 It is in the light of the above factors that the [OSCURATO:PERSONA] must ascertain whether the [OSCURATO:PERSONA] genuinely defined its ‘position’ for the purpose of [OSCURATO:PERSONA] 265 TFEU. 46 With regard, in the first place, to the railway charges and the free use of [OSCURATO:PERSONA]-owned property, it should be recalled that those measures were covered by the applicants’ complaint and that, by the covering letter enclosing the construction decision, the [OSCURATO:PERSONA] informed the applicants, albeit extremely succinctly, that it had examined the measures concerned by the complaint in that decision (see paragraph 41 above). The applicants were therefore in a position to verify whether the [OSCURATO:PERSONA] had given an exhaustive answer to their complaint. 47 As indicated in paragraph 10 above, the applicants have challenged that decision in [OSCURATO:PERSONA] T‑630/15, without claiming, however, when that action was brought, that the two measures in question have not been examined (see paragraph 17 above). It is only with the letter of formal notice, which postdates the construction decision by more than a year and the covering letter enclosing that decision by almost 11 months, that they claimed that the [OSCURATO:PERSONA] had failed to examine those measures. 48 In those circumstances, it is clear, with regard to those two measures, that the letter in which the [OSCURATO:PERSONA] adopted a position — irrespective of its merits — is a confirmatory measure, which cannot form the subject matter of an action for annulment, and at the same time constitutes a valid definition of its position within the meaning of [OSCURATO:PERSONA] 265 TFEU (see, to that effect, order of 9 January 2012, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , T‑407/09, not published, EU:T:2012:1, paragraphs 29 to 34 and 40 and the case-law cited). 49 As regards, in the second place, the other contested measures, which, it is alleged, were granted in breach of the planning decision, it should be noted that in the letter adopting a position the [OSCURATO:PERSONA] concluded that the facts and points of law put forward by the applicants did not provide sufficient grounds to show, on the basis of a prima facie examination, the existence of unlawful aid, and invited the applicants to submit their comments within one month, which the applicants did by letter of 30 October 2016. 50 It is therefore clear, with regard to the latter measures, that the letter adopting a position constitutes a preliminary decision for the purpose of the second subparagraph of [OSCURATO:PERSONA] 24(2) of [OSCURATO:PERSONA] 2015/1589. Although it cannot form the subject matter of an action for annulment, that letter constitutes a valid definition of a position within the meaning of [OSCURATO:PERSONA] 265 TFEU. 51 That conclusion is not affected by the applicants’ arguments. 52 First of all, the fact that 26 months elapsed between the complaint and the letter of formal notice is irrelevant, given that what matters is the fact that the [OSCURATO:PERSONA] adopted a position following the formal notice given by the applicants and before the action was brought in the present case. Moreover, during the period in question, the [OSCURATO:PERSONA] answered the complaint by the construction decision and the covering letter enclosing that decision. 53 [OSCURATO:PERSONA], and in any event, the applicants have failed to show that, in the circumstances of the present case, the [OSCURATO:PERSONA] was required to initiate the formal investigation procedure. On the contrary, by its letter adopting a position, it followed the complaints handling procedure laid down in [OSCURATO:PERSONA] 24(2) of [OSCURATO:PERSONA] 2015/1589 correctly. 54 Finally, the argument that the [OSCURATO:PERSONA] was not given notification of the contested measures and that they were not examined or approved by it is irrelevant. That argument relates to whether, in the construction decision, the [OSCURATO:PERSONA] examined those measures, or should have examined them and failed to adopt a position, which is relevant to the merits of the action, not its admissibility, and should have been raised when the action for annulment of that decision was lodged or, as the case may be, at the time of the covering letter. 55 It must therefore be concluded that the [OSCURATO:PERSONA] adopted a valid definition of its position within the meaning of [OSCURATO:PERSONA] 265 TFEU before the present action was brought. Accordingly, that action must be dismissed as inadmissible Costs 56 [OSCURATO:PERSONA] 134(1) of the Rules of [OSCURATO:PERSONA], the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the [OSCURATO:PERSONA]. 57 [OSCURATO:PERSONA] 138(1) of the Rules of [OSCURATO:PERSONA], [OSCURATO:PERSONA] which have intervened in the proceedings are to bear their own costs. On those grounds, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders: 1. The action is dismissed as inadmissible; 2.      [OSCURATO:PERSONA] ApS and [OSCURATO:PERSONA] GmbH are to bear their own costs and to pay the costs incurred by the [OSCURATO:PERSONA]; 3.      [OSCURATO:PERSONA] of Denmark is to bear its own costs. Luxembourg, 13 December 2018. E. Coulon G. [OSCURATO:PERSONA] * Language of the case: English.
Sentenza Corte di giustizia UE/2018 — Fons Iuris — Fons Iuris