Judgment_paragraph 29 · HH Ferries I/S, formerly Scandlines Øresund I/S and Others v European Commission (T-68/15)

29The Commission considered, in recitals 138 and 140 to 153 of the contested decision, that, in any event, even if the aid measures concerned were to be deemed to be incompatible with the internal market, they could not be recovered by the Kingdom of Denmark and the Kingdom of Sweden, on the ground that recovery would be contrary to a general principle of EU law, in accordance with Article 14(1) of Regulation No 659/1999. The Commission considered, in essence, that there was, in this case, a combination of exceptional circumstances that justified the Consortium as well as the Kingdom of Denmark and the Kingdom of Sweden being entitled to have a legitimate expectation that the State guarantees and the Danish tax aid granted to the Consortium would not be challenged. The Commission thus recalled that its position, in 1992, was that the construction and operation of infrastructure projects did not constitute an economic activity. However, both its decision-making practice and EU case-law relating to the concept of ‘economic activity’ with respect to financing the construction and operation of infrastructure projects had evolved since the judgments of 12 December 2000, Aéroports de Paris v Commission (T‑128/98, EU:T:2000:290); of 17 December 2008, Ryanair v Commission (T‑196/04, EU:T:2008:585); and of 24 March 2011, Freistaat Sachsen and Land Sachsen-Anhalt v Commission (T‑443/08 and T‑455/08, EU:T:2011:117), the last having been confirmed by the judgment of 19 December 2012, Mitteldeutsche Flughafen and Flughafen Leipzig-Halle v Commission (C‑288/11 P, EU:C:2012:821) (recitals 61 to 66 of the contested decision). Further, the Commission’s staff had informed the Kingdom of Denmark and the Kingdom of Sweden, in 1995, that the State guarantees did not constitute State aid within the meaning of Article 107(1) TFEU. The Commission considered the latter conclusion, contained in its letters of 27 October 1995, sent to the Kingdom of Denmark and to the Kingdom of Sweden, extended to the Danish tax aid, in so far as that aid concerned an infrastructure project which, at the time, was not deemed to constitute an economic activity. According to the Commission, it was not necessary to determine whether those legitimate expectations extended beyond the date of the judgment of 12 December 2000, Aéroports de Paris v Commission (T‑128/98, EU:T:2000:290), for the reason that, in any event, the measures concerned were compatible with the internal market (recital 153 of the contested decision).