Contents
Judgment of the Court (First Chamber)20 November 2025note(Reference for a preliminary ruling — State aid — Agreement concluded before the accession of the Kingdom of Sweden to the European Union — Compensation for the loss of revenue arising from the abolition of passage fees for a lock — Concept of aid — Concept of undertaking — Economic activity — Existing or new aid)In Case C‑401/24,REQUEST for a preliminary ruling under Article 267 TFEU from the Stockholms tingsrätt (District Court, Stockholm, Sweden), made by decision of 29 May 2024, received at the Court on 7 June 2024, in the proceedingsStaten genom SjöfartsverketvStockholms Hamn AB,THE COURT (First Chamber),composed of F. Biltgen, President of the Chamber, T. von Danwitz, Vice-President of the Court, acting as Judge of the First Chamber, I. Ziemele, A. Kumin and S. Gervasoni (Rapporteur), Judges,Advocate General: A. Biondi,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– the Staten genom Sjöfartsverket, by H. Nilsson and B. Thomaeus, advokater,– Stockholms Hamn AB, by K. Stålnacke and G. Swedlund, stadsadvokater,– the European Commission, by C. Faroghi, I. Georgiopoulos and A. Steiblytė, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 5 June 2025,gives the following
Judgment
1This request for a preliminary ruling concerns the interpretation of Article 107 TFEU and Article 1(b)(i) 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), and of Article 144 of the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded (OJ 1994 C 241, p. 21, and OJ 1995 L 1, p. 1; ‘the Act of Accession’).
2The request has been made in proceedings between the Staten genom Sjöfartsverket (National Maritime Navigation Administration, Sweden; ‘the Maritime Administration’) and Stockholms Hamn AB concerning the reimbursement by Stockholms Hamn AB of the sums paid by the Maritime Administration to compensate for the abolition of passage fees for a lock.
Legal context
European Union law
The FEU Treaty
3Article 107(1) TFEU provides:‘Save as otherwise provided in the Treaties, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the internal market.’
The Act of Accession
4Pursuant to Article 144 of the Act of Accession:‘In the field of aids provided for in Articles [107 and 108 TFEU]:(a) among the aids applied in the new Member States prior to accession only those communicated to the Commission [of the European Communities] by 30 April 1995 will be deemed to be “existing” aids within the meaning of Article [108(1) TFEU];(b) existing aids and plans intended to grant or alter aids, communicated to the Commission prior to accession, shall be deemed to have been notified on the date of accession.’
Regulation 2015/1589
5Article 1(b)(i) of Regulation 2015/1589 defines ‘existing aid’ as follows:‘For the purposes of this Regulation, the following definitions shall apply:…(b) “existing aid” means:(i) without prejudice to Articles 144 and 172 of the [Act of Accession] all aid which existed prior to the entry into force of the [FEU Treaty] in the respective Member States, that is to say, aid schemes and individual aid which were put into effect before, and are still applicable after, the entry into force of the [FEU Treaty] in the respective Member States’.
6‘New aid’ is defined in Article 1(c) of Regulation 2015/1589 as ‘all aid, that is to say, aid schemes and individual aid, which is not existing aid, including alterations to existing aid’.
Regulation (EC) No 794/2004
7Article 4 of Commission Regulation (EC) No 794/2004 of 21 April 2004 implementing Council Regulation (EC) No 659/1999 laying down detailed rules for the application of Article [108 TFEU] (OJ 2004 L 140, p. 1), the title of which has been amended by Commission Regulation (EU) 2015/2282 of 27 November 2015 (OJ 2015 L 325, p. 1) and now refers to the implementation of Regulation 2015/1589, provides:1. For the purposes of Article 1(c) of Regulation (EC) No 659/1999, an alteration to existing aid shall mean any change, other than modifications of a purely formal or administrative nature which cannot affect the evaluation of the compatibility of the aid measure with the common market. However an increase in the original budget of an existing aid scheme by up to 20% shall not be considered an alteration to existing aid.2.The following alterations to existing aid shall be notified on the simplified notification form set out in Annex II:(a) increases in the budget of an authorised aid scheme exceeding 20%;(b) prolongation of an existing authorised aid scheme by up to six years, with or without an increase in the budget;(c) tightening of the criteria for the application of an authorised aid scheme, a reduction of aid intensity or a reduction of eligible expenses;…’
The dispute in the main proceedings and the questions referred for a preliminary ruling
8Two waterways, one via the Södertälje Canal (Sweden) and the other passing through Stockholm (Sweden) and its lock in Hammarby, link the Baltic Sea to Lake Mälar, Sweden’s third largest lake.
9The Maritime Administration is the public authority responsible for the passage of vessels through the Södertälje Canal and manages, inter alia, its lock. Stockholms Hamn is a municipal company wholly owned by Stockholm Municipality which operates Hammarby Lock. The level of lock fees collected for passage through the locks of Södertälje and Hammarby was coordinated in order to ensure a balanced distribution of traffic between the two connections between the Baltic Sea and Lake Mälar.
10By legislation adopted on 26 October 1978, the Swedish authorities decided to abolish, with effect from 1979, certain fees relating to passage through the Södertälje Canal and, in order to continue coordinating lock fees, to take steps to abolish also those collected for passage through Hammarby Lock. Consequently, in that same year, the Maritime Administration and the Stockholm Municipality concluded an agreement (‘the agreement’) under which the latter waived the right to collect fees for passage through Hammarby Lock by vessels other than recreational vessels in exchange for annual compensation paid by the former (‘the compensation at issue in the main proceedings’).
11Under the terms of the agreement, the compensation at issue in the main proceedings was to be adjusted annually on the basis of the consumer price index. The agreement had to be renewed for a period of five years, unless notice of termination was given at least six months before its expiry. A new annual sum of compensation had to be fixed for each new five-year period based on the evolution of the volume of traffic passing through Hammarby Lock during the preceding agreement period.
12The compensation at issue in the main proceedings was initially paid to Stockholm Municipality and then, from the beginning of the 1990s, to Stockholms Hamn. From 2014, its amount fluctuated between 3 and 4 million kronor (SEK) (approximately EUR 260000 and EUR 360000) annually.
13The Maritime Administration terminated the agreement early, at the end of 2021. Proceedings relating to that termination are pending before the Swedish courts.
14On 4 May 2023, the Maritime Administration brought an action against Stockholms Hamn before the Stockholms tingsrätt (District Court, Stockholm, Sweden), which is the referring court. It claimed reimbursement, together with interest, of the sum of SEK 38086436 (approximately EUR 3378242), corresponding to the payments made under the agreement within the national limitation period of ten years.
15The Maritime Administration submits that the compensation at issue in the main proceedings satisfies the conditions to be classified as State aid. In its view, in particular, that compensation constitutes an advantage for Stockholms Hamn, since it guaranteed Stockholms Hamn a regular income irrespective of traffic fluctuations or other operating risks. Classification as State aid is also confirmed by applying the market economy investor principle, since no private investor would have reimbursed Stockholms Hamn for it to refrain from charging lock fees. The Maritime Administration also submits that the criteria laid down by the Court of Justice in the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415) (‘the Altmark criteria’), to find that the discharge of public service obligations does not constitute State aid, are not satisfied. Lastly, relying on Article 144 of the Act of Accession, the Maritime Administration submits that the exception relating to existing aid does not apply to the said compensation, in view of its failure to notify the Commission, and that, in any event, the same compensation cannot be classified as existing aid, having regard to the negotiations preceding each new five-year contractual period.
16Stockholms Hamn counters that its activity of operating a lock is not an economic activity covered by the State aid rules under EU law. In any event, it is a service of general economic interest which did not give rise to overcompensation. Stockholms Hamn adds that, even if classification as State aid were to be upheld, it would be authorised as existing aid under Regulation 2015/1589 and independently of Article 144 of the Act of Accession, which is not relevant in the present case. Moreover, the aid at issue in the main proceedings cannot be regarded as new or altered without a renegotiation between the parties of the terms of the agreement and, in particular, of the amount of compensation at issue in the main proceedings.
17Taking the view that there is no clear guidance in the Court’s case-law on the manner in which EU law must be applied in a situation such as that at issue in the main proceedings, as regards, in particular, the existence of an economic advantage, the applicability of the Act of Accession and the classification of aid as new or existing, the Stockholms tingsrätt (District Court, Stockholm) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:(1) Should the criterion of [the advantage] in Article 107(1) [TFEU] be understood as meaning that annual compensation which is paid by a State authority to a municipal joint stock company from State resources under an agreement as compensation for the company’s undertaking to provide free of charge a certain service, in this case lock operations, for which fees were charged until the conclusion of the agreement,(a) is to be regarded in its entirety as constituting aid which distorts or threatens to distort competition by favouring the recipient?(b) is to be regarded as constituting aid which distorts or threatens to distort competition by favouring the recipient to the extent that the compensation exceeds the recipient’s previous annual revenue from fees for the service, taking into account changes in, for example, the consumer price index and traffic volume in lock operations?(c) is to be regarded as constituting aid which distorts or threatens to distort competition by favouring the recipient to the extent that the compensation exceeds the recipient’s annual costs for providing the service?(d) is to be regarded as constituting aid which distorts or threatens to distort competition by favouring the recipient based on some other calculation model?(e) is not to be regarded to any extent as constituting aid which distorts or threatens to distort competition by favouring the recipient?(2) Should an agreement on annual compensation paid by a State authority to a municipal joint stock company from State resources as compensation for the company’s undertaking to provide free of charge a service outside the agriculture sector, in this case lock operations, where the agreement was concluded before Sweden’s accession to the European Union and was not notified to the Commission, be considered to constitute existing aid which, in accordance with Article 1(b)(i) of [Regulation 2015/1589], is to be regarded as lawful provided the Commission has not found the aid to be incompatible with the internal market?(3) If question 2 is answered in the affirmative, should such annual compensation nevertheless be considered to constitute new aid if, on several occasions after Sweden’s accession to the European Union, the agreement was extended by five years at a time, in accordance with the original terms, in the absence of notice of termination and the annual compensation for each new five-year period was changed, partly in the light of the consumer price index and partly in the light of the extent of the service which was provided free of charge during the preceding agreement period, in this case traffic volume in lock operations?’
Consideration of the questions referred
The first question
18By its first question, the referring court asks, in essence, whether Article 107(1) TFEU must be interpreted as meaning that a compensation paid under an agreement using State resources by a public authority to a municipal joint stock company as compensation for that company’s undertaking to provide free of charge a lock service on a waterway, which had been subject to a fee before the conclusion of that agreement, constitutes State aid.
19According to settled case-law, classification of a national measure as ‘State aid’, within the meaning of Article 107(1) TFEU, requires all the following conditions to be fulfilled. First, there must be an intervention by the State or through State resources. Second, that intervention must be liable to affect trade between Member States. Third, it must confer a selective advantage on the beneficiary. Fourth, it must distort or threaten to distort competition (judgment of 8 November 2022, Fiat Chrysler Finance Europe v Commission, C‑885/19 P and C‑898/19 P, EU:C:2022:859, paragraph 66 and the case-law cited).
20In the present case, the referring court asks the Court whether the municipal joint stock company which benefitted from the compensation at issue in the main proceedings constitutes an ‘undertaking’ within the meaning of Article 107(1) TFEU, on the existence of an economic advantage and on the effect on trade and competition.
The existence of an undertaking
21In order to provide the referring court with a useful answer, it must be recalled that, for the purposes of classification as State aid, Article 107(1) TFEU presupposes, inter alia, the existence of an advantage conferred on an undertaking. In that regard, it must first be emphasised that, for the purposes of the application of EU competition law, an undertaking is any entity engaged in an economic activity, irrespective of its legal status and the way in which it is financed. Second, any activity consisting in offering goods and services on a given market is an economic activity (see, to that effect, judgment of 22 October 2015, EasyPay and Finance Engineering, C‑185/14, EU:C:2015:716, paragraphs 36 and 37 and the case-law cited).
22It will therefore be for the referring court to determine whether, in the present case, the municipal joint stock company, Stockholms Hamn, in its capacity as operator of Hammarby Lock, carries on an economic activity and must therefore be classified as an ‘undertaking’ within the meaning of Article 107(1) TFEU.
23In that regard, it should be emphasised, in the first place, that the public or private status of the entity engaged in the activity in question has no bearing on the question as to whether or not that entity is an ‘undertaking’. The State itself or a State entity may act as an undertaking. In addition, a legal entity, and inter alia a public entity, may be regarded as an undertaking in relation to only part of its activities, if the activities which form that part must be classified as economic activities (see, to that effect, judgments of 12 July 2012, Compass-Datenbank, C‑138/11, EU:C:2012:449, paragraphs 35 and 37, and of 27 June 2017, Congregación de Escuelas Pías Provincia Betania, C‑74/16, EU:C:2017:496, paragraph 42). Therefore, the status of the entity under national law is not decisive.
24It follows that the fact that the lock service at issue in the main proceedings is provided by Stockholms Hamn, a company wholly owned by Stockholm Municipality, does not preclude a finding as to the existence of an undertaking engaged in an economic activity.
25It must be stated, in the second place, that activities which fall within the exercise of public powers are not of an economic nature justifying the application of the FEU Treaty rules of competition (judgment of 12 July 2012, Compass-Datenbank, C‑138/11, EU:C:2012:449, paragraph 36 and the case-law cited), in particular where the operation of infrastructure is inextricably linked to the exercise of functions which fall within the public task entrusted to the entity that operates it and where that entity acts in the exercise of public powers (see, to that effect, judgments of 19 December 2012, Mitteldeutsche Flughafen and Flughafen Leipzig-Halle v Commission, C‑288/11 P, EU:C:2012:821, paragraph 44, and of 22 October 2015, EasyPay and Finance Engineering, C‑185/14, EU:C:2015:716, paragraph 40).
26As the Advocate General observed in point 18 of his Opinion, it does not appear that the economic nature of the lock service at issue in the main proceedings may be excluded in so far as it involves the exercise of public powers. It is not apparent either from the request for a preliminary ruling or from the file before the Court that the lock service at issue in the main proceedings involves or is inextricably linked to the exercise by Stockholms Hamn of such powers, such as waterway traffic control and safety, waterway policing and anti-pollution surveillance.
27In the third place, according to the case-law of the Court, the classification of an entity as an undertaking is always relative to a specific activity (see, to that effect, judgment of 27 June 2017, Congregación de Escuelas Pías Provincia Betania, C‑74/16, EU:C:2017:496, paragraph 44 and the case-law cited).
28In the present case, the lock service at issue in the main proceedings, to which the agreement related and which gave rise to the payment of the compensation at issue in the main proceedings to Stockholms Hamn, consists in carrying out all the operations required to ensure the passage of vessels other than recreational vessels through Hammarby Lock. Unless it is considered that that service cannot, particularly in view of the conditions under which it is provided, be dissociated from the service consisting in providing the lock service to recreational vessels, which it will be for the referring court to examine, the verification of the existence of an economic activity must relate only to the service provided to vessels other than recreational vessels.
29In the fourth place, it should be recalled that, in accordance with the case-law of the Court recalled in paragraph 21 of the present judgment, in order to be classified as an economic activity, the lock service concerned must consist in offering goods and services on a given market.
30In that regard, according to settled case-law, the fact that the offer of goods or services is made on a not-for-profit basis does not prevent the entity which carries on those operations on the market from being considered an undertaking, since that offer exists in competition with that of other operators which do seek to make a profit. Furthermore, services normally provided for remuneration are services that may be classified as ‘economic activities’. The essential characteristic of remuneration lies in the fact that it constitutes consideration for the service in question (see judgment of 27 June 2017, Congregación de Escuelas Pías Provincia Betania, C‑74/16, EU:C:2017:496, paragraphs 46 and 47 and the case-law cited).
31In the present case, it may be noted that, under the Swedish legislation, the lock service at issue in the main proceedings is provided free of charge to its recipients.
32As the Advocate General emphasised in point 16 of his Opinion, an activity cannot, in principle, be regarded as economic if it does not generate, at least in the long term, revenue capable of turning a profit or at least covers costs.
33It follows that the fact that the lock service at issue in the main proceedings is provided free of charge may constitute an indication that there is no economic activity.
34Nevertheless, it will be for the referring court to verify whether the lock service at issue in the main proceedings is operated on a market, that is to say, in competition with other economic operators.
35In that regard, it is apparent from the order for reference that that service enables the connection between the Baltic Sea and Lake Mälar and that the only other waterway enabling that connection is the Södertälje Canal, navigation of which is managed by the Swedish State and was also provided free of charge during the term of the agreement. It thus appears that there is no substitutability with another operator seeking to make a profit, within the meaning of the case-law referred to in paragraph 30 of the present judgment, and, that being so, no competitive relationship between the lock services on the two waterways concerned, which it will be for the referring court to verify.
36Consequently, it will be for the referring court to verify whether, despite the free-of-charge nature of the lock service provided by Stockholms Hamn, that service is provided on a market in competition with other economic operators and whether, in the light of the context in which that service is provided, Stockholms Hamn can be classified as an ‘undertaking’ within the meaning of Article 107(1) TFEU.
The existence of an advantage
37It should be recalled that, according to the case-law cited in paragraph 19 of the present judgment, in order to be classified as ‘State aid’ within the meaning of Article 107(1) TFEU, a national measure must confer a selective advantage on the undertaking or undertakings benefiting therefrom.
38Any State measure which, whatever its form or objectives, is likely to favour one or more undertakings directly or indirectly, or which confers an advantage on them which they would not have been able to obtain under normal market conditions must be regarded as satisfying that condition (see judgment of 17 November 2022, Volotea and easyJet v Commission, C‑331/20 P and C‑343/20 P, EU:C:2022:886, paragraph 107 and the case-law cited).
39The assessment of the conditions in which such an advantage has been conferred is, in principle, carried out by applying the private operator principle, unless there is no possibility of comparing the State conduct at issue in the case at hand with that of a private operator, inter alia because the State acted in its capacity as a public authority (judgment of 17 November 2022, Volotea and easyJet v Commission, C‑331/20 P and C‑343/20 P, EU:C:2022:886, paragraph 108 and the case-law cited). The applicability of the private operator test depends, therefore, on the Member State concerned having conferred, in its capacity as shareholder and not in its capacity as public authority, an economic advantage on an undertaking. In particular, the nature and subject matter of the measure at issue, its context, the objective pursued and the rules to which it is subject are relevant for the purposes of that assessment (see, to that effect, judgments of 5 June 2012, Commission v EDF, C‑124/10 P, EU:C:2012:318, paragraphs 81 and 86, and of 13 March 2025, Cividale and Others, C‑746/23 and C‑747/23, EU:C:2025:171, paragraph 42).
40In the present case, it is apparent from the order for reference that the agreement was concluded following the decision of the Swedish authorities to abolish, at regional level, certain fees imposed on passage through certain inland waterways, with the aim of maintaining a balanced distribution of traffic between the waterways concerned. Accordingly, as the Advocate General observed in point 21 of his Opinion, it seems that the evidence before the Court on the reasons for the payment of the compensation at issue in the main proceedings to Stockholms Hamn instead has to be interpreted as meaning that the Swedish State intervened in its capacity as a public authority and not as a private operator.
41As regards the criteria set out by the Court in the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415), relied on by Stockholms Hamn before the referring court, it should be recalled that, in paragraph 87 of that judgment, the Court pointed out that, where a State measure must be regarded as compensation for the services provided by the recipient undertakings in order to discharge public service obligations, such a measure is not caught by Article 107(1) TFEU.
42The Court has established four cumulative conditions which such compensation must satisfy in order for the existence of an advantage to be ruled out. First, the recipient undertaking must actually have public service obligations to discharge, and the obligations must be clearly defined. Second, the parameters on the basis of which the compensation is calculated must be established in advance in an objective and transparent manner, to avoid it conferring an economic advantage which may favour the recipient undertaking over competing undertakings. Third, the compensation cannot exceed what is necessary to cover all or part of the costs incurred in the discharge of public service obligations, taking into account the relevant receipts and a reasonable profit for discharging those obligations. Fourth, where the undertaking which is to discharge public service obligations, in a specific case, is not chosen pursuant to a public procurement procedure which would allow for the selection of the tenderer capable of providing those services at the least cost to the community, the level of compensation needed must be determined on the basis of an analysis of the costs which a typical undertaking, well run and adequately provided so as to be able to meet the necessary public service requirements, would have incurred in discharging those obligations (judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg, C‑280/00, EU:C:2003:415, paragraphs 89 to 93).
43In the present case, it should be noted that the free-of-charge nature of the lock operations provided by Stockholms Hamn during the relevant period for commercial vessels appeared to constitute an obligation imposed by law and subsequently formalised in an agreement concluded with the administrative authority delegated for that purpose, by which the Swedish authorities pursued the objective of ensuring an optimal distribution of commercial maritime traffic in the general interest. As the Advocate General observed in point 25 of his Opinion, it cannot therefore be ruled out that, during that period, Stockholms Hamn was entrusted with a public service obligation within the meaning of the Altmark criteria, which it will however be for the referring court to assess, in the light of all the relevant factors.
44As regards the three other Altmark criteria, it should be emphasised, as the Advocate General did in points 26 and 27 of his Opinion, that the information provided by the referring court does not make it possible to determine to what extent those three other criteria, intended to ensure that there is no overcompensation, are satisfied in this case. Although the amount of the compensation at issue in the main proceedings is based primarily on that of the fees which were collected before their abolition, it is not apparent from the file before the Court that those fees are linked to the costs incurred by the lock service concerned.
45It will therefore be for the referring court to assess, in the light of all the relevant factors, and of the foregoing considerations in particular, whether the market economy operator test or the Altmark criteria support the conclusion that Stockholms Hamn was granted an advantage as a result of the payment of the compensation at issue in the main proceedings.
The effect on trade between Member States and distortion of competition
46According to settled case-law, for the purpose of categorising a national measure as State aid, it is not necessary to establish that the aid at issue has a real effect on trade between Member States and that competition is actually being distorted, but only to examine whether that aid is liable to affect such trade and distort competition. In particular, when aid granted by a Member State strengthens the position of an undertaking compared with other undertakings competing in intra-Community trade, the latter must be regarded as affected by that aid (judgment of 14 January 2015, Eventech, C‑518/13, EU:C:2015:9, paragraphs 65 and 66 and the case-law cited).
47In that regard, it is not necessary that the beneficiary undertakings are themselves involved in intra-Community trade. Where a Member State grants aid to undertakings, internal activity may be maintained or increased as a result, so that the opportunities for undertakings established in other Member States to penetrate the market in that Member State are thereby reduced. Moreover, there is no threshold or percentage below which it may be considered that trade between Member States is not affected. The relatively small amount of aid or the relatively small size of the undertaking which receives it does not as such exclude the possibility that trade between Member States might be affected. Consequently, the condition that the aid at issue must be capable of affecting trade between Member States does not depend on the local or regional character of the transport services supplied or on the scale of the field of activity concerned (judgment of 14 January 2015, Eventech, C‑518/13, EU:C:2015:9, paragraphs 67 to 69 and the case-law cited).
48It follows that, as regards the measure at issue in the main proceedings, the effect on trade between Member States and on competition depends on the existence of a market on which the lock service at issue in the main proceedings is offered. In that regard, it will be necessary to take account, in particular, of the requirement imposed by the Swedish authorities that the service be provided free of charge, which may constitute an obstacle to undertakings established in other Member States considering providing the service at issue in the main proceedings.
49In the light of all of the foregoing, the answer to the first question is that Article 107(1) TFEU must be interpreted as meaning that an annual compensation paid under an agreement using State resources by a public authority to a municipal joint stock company as compensation for that company’s undertaking to provide free of charge a lock service on a waterway which had been subject to a fee before the conclusion of that agreement, constitutes State aid if that company can be regarded as an undertaking and if that compensation confers on it an advantage which it would not have obtained under normal market conditions.
The second and third questions
50By its second and third questions, which it is appropriate to examine together, the referring court asks, in essence, whether, in the event that the compensation provided for in an agreement concluded before a State’s accession to the European Union constitutes aid within the meaning of Article 107(1) TFEU, it must be classified as ‘existing aid’ within the meaning of Article 1(b)(i) of Regulation 2015/1589 and, if so, whether it must be regarded as ‘new aid’ after that accession, in so far as its application has been extended on several occasions and its amount adjusted in accordance with the original terms of the agreement which established it.
51It should be recalled that the classification of State aid as existing or new aid has different procedural consequences. Existing aid may, in accordance with Article 108(1) TFEU, be lawfully implemented as long as the Commission has not found it to be incompatible with the internal market (judgments of 15 March 1994, Banco Exterior de España, C‑387/92, EU:C:1994:100, paragraphs 19 and 20, and of 18 July 2013, P, C‑6/12, EU:C:2013:525, paragraph 36 and the case-law cited). On the other hand, Article 108(3) TFEU provides that plans to grant or alter existing aid must be notified, in sufficient time, to the Commission and may not be implemented until the examination procedure has resulted in a final decision (judgment of 20 May 2021, Azienda Sanitaria Provinciale di Catania, C‑128/19, EU:C:2021:401, paragraph 30 and the case-law cited).
52According to Article 1(b)(i) of Regulation 2015/1589, the concept of ‘existing aid’ includes, ‘without prejudice to Articles 144 and 172 of the Act of Accession … all aid which existed prior to the entry into force of the [FEU Treaty] in the respective Member States, that is to say, aid schemes and individual aid which were put into effect before, and are still applicable after, the entry into force of the [FEU Treaty] in the respective Member States’.
53In the present case, it is not disputed that the compensation at issue in the main proceedings began to be paid – and therefore existed – before the entry into force of the FEU Treaty in Sweden, within the meaning of Article 1(b)(i) of Regulation 2015/1589.
54It is apparent from the order for reference that the compensation at issue in the main proceedings was not notified to the Commission and that the referring court is therefore uncertain as to whether Article 144 of the Act of Accession, which provides, in point (a) thereof, that, ‘in the field of the aids provided for in Articles [107 and 108 TFEU]’, ‘among the aids applied in the new Member States prior to accession only those communicated to the Commission by 30 April 1995 will be deemed to be “existing” aids within the meaning of Article [108(1) TFEU]’, is applicable to the case at hand.
55It is apparent from the Act of Accession and, in particular from Article 137(1) thereof, that Title VI of that agreement, which includes Article 144 thereof, applies to agricultural products (see, to that effect, judgment of 18 July 2013, P, C‑6/12, EU:C:2013:525, paragraph 44). Consequently, Article 144 of the Act of Accession does not apply to the compensation at issue in the main proceedings, which concerns lock services.
56It follows that, although the compensation at issue in the main proceedings was not notified to the Commission, it must be classified as existing aid, since it satisfies the conditions to which Article 1(b)(i) of Regulation 2015/1589 subjects such a classification.
57It is necessary, however, to determine whether that classification may be called into question by the extensions and adjustments which the compensation at issue in the main proceedings underwent. It is apparent from the order for reference that the referring court questions whether the alterations relating to the duration and amount of the compensation at issue in the main proceedings occurring after the expiry of the agreement, initially concluded in 1979 for a period of five years, may be regarded as ‘alterations to existing aid’, with the result that that compensation must, ultimately, be classified as ‘new aid’ within the meaning of Article 1(c) of Regulation 2015/1589.
58According to the first sentence of Article 4(1) of Regulation No 794/2004, ‘any change, other than modifications of a purely formal or administrative nature which cannot affect the evaluation of the compatibility of the aid measure with the [internal] market’ constitutes an alteration to existing aid. Furthermore, according to settled case-law, only a substantial alteration – of a subjective, objective or temporal nature – affecting the constituent elements of aid and liable to alter the assessment of its compatibility with the internal market gives rise to new aid (see judgments of 20 September 2018, Carrefour Hypermarchés and Others, C‑510/16, EU:C:2018:751, paragraph 41, and of 13 December 2018, Rittinger and Others, C‑492/17, EU:C:2018:1019, paragraph 57).
59In the present case, it is apparent from the order for reference that the validity of the agreement was automatically extended every five years until its termination in 2021. That automatic five-year extension of the agreement, unless terminated, and the adjustment of the amounts of the compensation at issue in the main proceedings, both annually on the basis of the consumer price index and every five years on the basis of the evolution of traffic, were provided for in that agreement and could, in so doing, be taken into account from the conclusion of the agreement for the purposes of a compatibility assessment.
60According to the settled case-law, only extensions introduced by acts adopted subsequent to the one which provided for the aid concerned, possibly after that aid has been authorised by the Commission (see, to that effect, judgments of 11 September 2003, Belgium v Commission, C‑197/99 P, EU:C:2003:444, paragraph 109, and of 20 May 2010, Todaro Nunziatina & C., C‑138/09, EU:C:2010:291, paragraph 47), or extensions going beyond the time limits laid down in the contract which instituted that aid, to the exclusion of the normal operation of that contract (see, to that effect, judgment of 26 October 2016, DEI and Commission v Alouminion tis Ellados, C‑590/14 P, EU:C:2016:797, paragraph 59), entail alterations to existing aid.
61As regards the adjustment of the amounts of the compensation at issue in the main proceedings, as the Advocate General stated in point 37 of his Opinion, first, the annual adjustment of the amount of the compensation at issue in the main proceedings on the basis of the consumer price index falls under automatic variations in the amounts of pecuniary aid in a situation of inflation and not under a substantial alteration in the amount of that compensation. Second, as regards the redefinition of the basic amount of the compensation at issue in the main proceedings on the expiry of each five-year period, it will be for the referring court to assess whether that redefinition, although occurring on the basis of a formula which remained unchanged over time, in fact led to a series of renegotiations which could be classified as ‘alterations’. That could be the case, in particular, if that redefinition required the parties to agree on the volume of traffic to be taken into consideration.
62If that is indeed the case, the referring court will be required to examine whether those alterations may be classified as ‘substantial’, bearing in mind that the 20% threshold above which an alteration to the original budget is considered an alteration to existing aid applies only, in accordance with Article 4(1) of Regulation No 794/2004, to aid schemes and not to individual aid, such as that at issue in the main proceedings.
63In the light of all of the foregoing, the answer to the second and third questions is that Article 1(b)(i) and (c) of Regulation 2015/1589 must be interpreted as meaning that, assuming that it constitutes aid, within the meaning of Article 107(1) TFEU, compensation, the payment of which, in accordance with the original terms of the agreement which instituted it, has been extended for five-year periods in the absence of termination of that agreement and the amount of which has been altered, first, annually, on the basis of the consumer price index and, second, on the expiry of each five-year period, according to the volume of the traffic concerned, pursuant to a formula set out in the original agreement and remaining unchanged over time, constitutes existing aid.
Costs
64Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
Operative part
On those grounds, the Court (First Chamber) hereby rules:
1.Article 107(1) TFEUmust be interpreted as meaning that an annual compensation paid under an agreement using State resources by a public authority to a municipal joint stock company as compensation for that company’s undertaking to provide free of charge a lock service on a waterway, which had been subject to a fee before the conclusion of that agreement, constitutes State aid if that company can be regarded as an undertaking and if that compensation confers on it an advantage which it would not have obtained under normal market conditions.
2.Article 1(b)(i) and (c) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU]must be interpreted as meaning that, assuming that it constitutes aid, within the meaning of Article 107(1) TFEU, compensation, the payment of which, in accordance with the original terms of the agreement which instituted it, has been extended for five-year periods in the absence of termination of that agreement and the amount of which has been altered, first, annually, on the basis of the consumer price index and, second, on the expiry of each five-year period, according to the volume of the traffic concerned, pursuant to a formula set out in the original agreement and remaining unchanged over time, constitutes existing aid.
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