Opinion of Advocate General Biondi delivered on 5 June 2025

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Case date: 5 juni 2025

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OPINION OF ADVOCATE GENERAL

BIONDI

delivered on 5 June 2025 (¹)

Case C‑401/24

Staten genom Sjöfartsverket

Stockholms Hamn Aktiebolag

(Request for a preliminary ruling from the Stockholms tingsrätt (District Court, Stockholm, Sweden))

( Reference for a preliminary ruling – Aid granted by Member States – Article 107(1) TFEU – Concept of ‘undertaking’ – Notion of ‘aid’ – Concept of ‘existing aid’ and of ‘new aid’ – Compensation paid under an agreement concluded before Sweden’s accession to the European Union, by a State authority to a municipal undertaking, to compensate for the loss of revenue arising from the abolition of passage fees for a lock )

I. Introduction

1. This reference for a preliminary ruling raises several questions concerning, on the one hand, the concept of ‘aid’ within the meaning of Article 107(1) TFEU and, on the other hand, the concepts of ‘existing aid’ and ‘new aid’ within the meaning of Regulation (EU) 2015/1589. (²) The examination of these issues leads, in particular, to questions about the dividing line between economic activities, which fall within the scope of Articles 107 and 108 TFEU, and non-economic activities, which are excluded. In recent years, judgments of the Court of Justice and the General Court on the issue have increased, not only in areas which typically fall within the essential functions of the State, such as social security, healthcare and education, where social, welfare and solidarity-based elements prevail, but also in areas of State intervention which are not, in principle, excluded from commercial policy, such as, for example, infrastructure and, in particular, transport and port infrastructure. (³)

2. These questions arise in the context of a dispute between the Staten genom Sjöfartsverket (the Swedish State acting through the Swedish Maritime Administration; ‘the Sjöfartsverket’) and Stockholms Hamn Aktiebolag (Stockholm Port Authority, ‘Stockholms Hamn’), a municipal company, wholly owned by Stockholm Municipality, which operates Hammarby Lock. The dispute in the main proceedings may be summarised as follows. The Sjöfartsverket is a State authority that is responsible for passage through the Södertälje Canal. Until 1979, lock operations in that canal and those for passage through Hammarby Lock were subject to payment of a fee, collected by the Sjöfartsverket and Stockholm Municipality, respectively. The Södertälje Canal and Hammarby Lock both connect the Baltic Sea with Lake Mälar, Sweden’s third largest lake. The fees applied by the Sjöfartsverket and Stockholm Municipality were subject to coordination, in order to ensure that the level of fees did not affect the distribution of traffic in the two connections. In the context of a draft law adopted on 26 October 1978 (‘the draft law’), the Swedish authorities decided to abolish certain fees relating to passage through the Södertälje Canal and, in order to maintain fee coordination, to abolish also the corresponding fees for passage through Hammarby Lock, by providing for compensation to be paid to Stockholm Municipality for the resulting loss of revenue. In 1979, the Sjöfartsverket and Stockholm Municipality concluded an agreement for that purpose (‘the compensation agreement’), under which the latter undertook not to collect from vessels other than recreational vessels the fee for passage through Hammarby Lock in return for annual compensation paid by the former and linked to the volume of traffic and the level of fees applicable at the time (‘the compensation at issue’). Under the terms of the agreement, the amount of that compensation was to be adjusted annually on the basis of the consumer price index. The agreement was renewed for five-year periods, unless notice of termination was given at least six months before its expiry. A new annual sum would be fixed for each new five-year period based on changes in traffic volume in Hammarby Lock during the preceding agreement period. The compensation under the agreement was paid initially to Stockholm Municipality and then, from the beginning of the 1990s, to Stockholms Hamn.

3. The Sjöfartsverket terminated the agreement in 2021. (⁴) Proceedings relating to that termination are pending before the Swedish courts. On 4 May 2023, the Sjöfartsverket brought an action before the Stockholms tingsrätt (District Court, Stockholm, Sweden) against Stockholms Hamn, seeking reimbursement of an amount equal to 38 086 436 Swedish kronor (SEK), together with interest, corresponding to payments which it had made under the compensation agreement within the national limitation period of 10 years from the date on which the action was brought (‘the relevant period’). The Sjöfartsverket submits that the compensation at issue conferred on Stockholms Hamn an advantage through State resources that can be classified as State aid. Stockholms Hamn submits that the activity of operating Hammarby Lock does not constitute an economic activity to which the EU rules on State aid apply. In any event, by means of the compensation agreement, it was entrusted with the operation of a service of general economic interest (SGEI). Even if the compensation provided for in the agreement were to be classified as State aid, it would nevertheless constitute existing aid within the meaning of Article 1(b)(i) of Regulation 2015/1589, since it was granted before Sweden’s accession to the European Union. In those circumstances, 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 favouring 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 [European] 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 the second question 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?’

II. Analysis

A. The first question referred

4. According to the settled case-law of the Court, classification of a national measure as ‘State aid’, within the meaning of Article 107(1) TFEU, requires all the following conditions to be fulfilled. It must be an intervention by the State or through State resources, it must confer a selective advantage on the recipient and it must be liable to affect trade between Member States and distort or threaten to distort competition. (⁵)

5. It is apparent from the request for a preliminary ruling that the referring court is uncertain, in particular, as to whether and to what extent the compensation at issue confers an advantage on Stockholms Hamn that distorts or threatens to distort competition and trade between Member States. (⁶) Before addressing that question, however, it is necessary to assess whether Stockholms Hamn, in its capacity as operator of Hammarby Lock, can be regarded as an ‘undertaking’ within the meaning of Article 107(1) TFEU. That is a preliminary matter, in so far as, in the event of a negative answer, the compensation at issue would not fall within the scope of the prohibition set out in that provision.

1. The concepts of ‘undertaking’ and ‘economic activity’

6. In assessing whether a given entity constitutes an ‘undertaking’ within the meaning of competition law, the Court applies a ‘functional’ test, which focuses on the nature of the activity performed rather than on the characteristics of the actor that performs it. According to the definition adopted by the Court in the judgment in Höfner and Elser, (⁷) an ‘undertaking’ is any entity engaged in an economic activity, regardless of the legal status of the entity and the way in which it is financed. The concept of ‘economic activity’ is the key element of that definition and EU competition law applies to all entities carrying out an activity that can be classified as ‘economic’. The State itself or a State entity may therefore act as an undertaking. The concept of ‘economic activity’ is defined in broad terms, as ‘any activity consisting in offering goods and services on a given market’, (⁸) even if it is carried out on a non-profit-making basis. (⁹) The mere pursuit of public interest objectives does not preclude an activity from being economic in nature. (¹⁰)

7. The Court has clarified that activities which fall within the exercise of typical public powers, (¹¹) or which are connected to them by their nature, their aim and the rules to which they are subject, are not economic in nature. (¹²) The fact that, for carrying out part of its activities, an entity has public powers does not, in itself, prevent it from being classified as an undertaking within the meaning of competition law. An entity may act as undertaking in respect of only some of its activities, if they can be classified as economic and separable from the exercise of public powers. (¹³)

8. The classification of activities which fall within specific areas, such as education, healthcare and social security, as ‘economic’ depends, essentially, on the way in which those areas are organised in the Member State concerned. In principle, those activities are not economic in nature if they form part of a public system of a universal nature, controlled by the State, based on social and solidarity-based, rather than commercial, policy, by which the State fulfils its obligations in those areas. (¹⁴)

9. The activities at issue in the main proceedings consist of all operations necessary for the passage of vessels through Hammarby Lock, which Stockholms Hamn is entrusted to carry out as operator of the infrastructure. Stockholms Hamn, which operates several ports located in the Stockholm region, (¹⁵) takes the view that those operations are not of an economic nature, because, first, they are carried out without any consideration and on equal terms for the category of users concerned (commercial vessels) and, secondly, they consist of the exploitation and provision of infrastructure necessary for maritime navigation.

10. In accordance with the case-law referred to in points 6 and 7 of this Opinion, ports must be regarded as ‘undertakings’ if – and to the extent that – they in fact carry out one or more economic activities. (¹⁶) The Court of Justice and the General Court have held that, in certain circumstances, the commercial operation (¹⁷) and construction (¹⁸) of infrastructure, including port infrastructure, (¹⁹) constitutes an economic activity for the purposes of the application of the competition rules.

11. Indeed, in some decisions, relied on by Stockholms Hamn, the Commission has excluded from the scope of application of the provisions on State aid public investments in maritime access routes, including those intended to finance the construction or maintenance of locks which form an integral part of a system intended to facilitate the accessibility of the region concerned to maritime traffic, and of access infrastructure not located within port areas subject to commercial exploitation. According to the Commission, those interventions – where they concern infrastructure made available to all users in a non-discriminatory manner and for no consideration – fall within the responsibilities of the State in the planning and development of a maritime transport system for the benefit of the maritime community as a whole. (²⁰) The same position is found, in essence, in the Commission Notice on the notion of State aid. (²¹)

12. In the present case, it is unclear whether Hammarby Lock serves as a port facility (²²) or instead constitutes a basic structure which is necessary for general navigation. I consider, however, that that point does not significantly alter the terms of the question, at least in circumstances such as those in the main proceedings, in which, unlike in the abovementioned decisions, the matter at issue is not advantages granted to users through the application of discriminatory access conditions or investments aimed at improving infrastructure for the benefit of the economic exploitation of a port, but compensation paid to the infrastructure operator, which is a port authority active in the region, in return for its undertaking not to collect fees for lock operations provided for a certain category of users. (²³)

13. Certain elements in the documents before the Court seem to indicate that Hammarby Lock has been and is being commercially exploited. In particular, the collection of fees for passage through the lock both before the conclusion of the compensation agreement and after its termination, (²⁴) as well as, in principle – as far as recreational vessels are concerned – during the term of that agreement; the objective pursued by eliminating fees, which is to incentivise and redistribute commercial maritime traffic in the direction of Lake Mälaren;(²⁵) and the fact that the purpose of the compensation agreement was to compensate the Stockholm Municipality for the loss of revenue resulting from that elimination by using the volume of traffic, not the costs of the service, as the criterion for calculation. It is, however, for the referring court to confirm, in the light of all the relevant factors, that Hammarby Lock has been commercially exploited.

14. In that context, the fact that, at the time of the entry into force of the agreement, the fees were set by decree (²⁶) and were subject to coordination does not, in itself, make it possible to rule out that the lock operations carried out by Stockholms Hamn may have an economic dimension. The documents before the Court do not provide any information on the structure of those fees or the manner in which, and extent to which, they are coordinated, and therefore does not make it possible to rule out that, at the time of the entry into force of the agreement and potentially after its termination, Stockholm Municipality, and then Stockholms Hamn, may have been involved, as operators of Hammarby Lock, in establishing them and retained a certain degree of autonomy in their application. (²⁷)

15. Similarly, the mere fact that, during the period of application of the compensation agreement, access to Hammarby Lock was not subject to payment of consideration for certain categories of users does not, in my view, make it possible to automatically rule out that the services provided by Stockholms Hamn may be economic in nature.

16. There is no doubt that an activity cannot be regarded as ‘economic’ if it does not provide, at least in the end, for a return that allows for generating profit or at least covers costs. However, in the same way that a service provided for consideration is not, for that reason alone, to be regarded as economic in nature, (²⁸) a service provided free of charge to recipients does not for that reason lose its potential to generate profit and is not to be automatically classified as ‘non-economic’ for the purposes of the application of the provisions on State aid. Furthermore, services which a Member State imposes on an undertaking by way of public service obligations (PSOs) retain their economic character even when they are offered to recipients at a price below their market value or free of charge. (²⁹) In that context, public compensation paid to the entity that provides them constitutes consideration for the public service provided for the benefit of the general public and may give rise to State aid if it does not comply with certain criteria – laid down by the Court of Justice in the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg, (³⁰) which I will address below – applicable only if the activity concerned is economic in nature. (³¹)

17. Although it is not a decisive factor, the provision of infrastructure free of charge in the common interest may nevertheless constitute an indication that it is not the subject of economic exploitation, which should be assessed in the light of all the relevant circumstances. In the present case, as stated above, it is for the referring court to assess whether Hammarby Lock was also the subject of such exploitation during the period of application of the compensation agreement, in which the loss of revenue by Stockholms Hamn following the abolition of the fees for commercial traffic was replaced by the compensation paid by the Sjöfartsverket.

18. By contrast, the application of the rules on State aid is precluded, in accordance with the case-law referred to in point 7 of the present Opinion, in the event that 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. In the present case, it is not apparent from the request for a preliminary ruling, the documents lodged at the Court Registry and Stockholms Hamn’s own observations that the operations carried out at Hammarby Lock involve or are inextricably linked to the performance of public authority tasks, such as, for example, maritime traffic control and safety, waterway policing and anti-pollution surveillance. (³²) Subject to the necessary verifications that have to be carried out by the referring court, it does not therefore appear to be the case that the economic nature of the lock operations carried out by Stockholms Hamn may be excluded for that reason.

19. Finally, as regards the question of whether the lock operations carried out by Stockholms Hamn constitute services offered on a ‘market’, the Court does not have much information at its disposal. However, it is apparent from the order for reference that, as regards commercial traffic to and from Lake Mälaren, the passage through Hammarby Lock is in competition with the Södertälje Canal, operated by the Sjöfartsverket. Furthermore, the fact that the State provided for an increase in that traffic following the decision to eliminate the fees collected on those two routes, seems to suggest the existence of competitive dynamics also outside the relationship between Stockholms Hamn and the Sjöfartsverket. (³³) It is, however, for the referring court to make the necessary assessments in that regard.

2. The existence of an advantage

20. As noted in point 4 of this Opinion, 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 recipient undertaking or undertakings. That condition is satisfied by any 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. The characterisation of such an advantage as existing is, in general, carried out by applying the market economy operator principle (‘the MEOP’). The application of that principle involves using, on a case-by-case basis, various specific tests which each aim to compare, in the most appropriate and adequate manner possible, the State measure at issue with a measure that might have been adopted by a private operator in a situation that is as alike as possible and acting under normal market conditions. (³⁴) As stated by the Court, the applicability of that principle depends 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. (³⁵) The applicability of the MEOP therefore depends on the economic nature of the State intervention at issue, (³⁶) having regard, in particular, to its purpose, its context, the objective pursued and the rules to which it is subject. (³⁷)

21. In the present case, it is apparent from the order for reference that the compensation agreement was concluded following the decision of the Swedish authorities to abolish, at regional level, certain fees applied for passage through certain inland waterways, with the aim of keeping existing traffic distribution the same. It seems that the evidence before the Court 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.

22. Stockholms Hamn considers that, even if the MEOP were applicable in the present case, the compensation at issue would constitute a ‘price’ paid by the Swedish authorities for the purchase of the lock services. However, the referring court does not provide any information that would enable the Swedish State’s decision to conclude the compensation agreement (³⁸) to be interpreted to that effect. It follows, instead, from the order for reference that the Swedish State considered that Stockholms Hamn was entitled to ‘compensation’ for the negative consequences arising from the abolition of the fees at issue and from the subsequent undertaking not to collect fees for the lock operations covered by the compensation agreement. However, there are no indications as to whether that right is based on the relationship between Stockholms Hamn and the Swedish State with regard to the operation of Hammarby Lock (³⁹) or on another basis. (⁴⁰) In general terms, I would note that, under Article 107(1) TFEU, the agreed benefits may include not only positive benefits, such as subsidies, but also interventions which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and that the concept of ‘charges which are normally borne by the budget of an undertaking’ include, in particular, the additional costs which undertakings must bear by virtue of obligations imposed by law, regulation or agreement which apply to an economic activity. (⁴¹) Therefore, in principle, the compensatory character of advantages conferred by State intervention does not prevent them from being classified as ‘aid’ within the meaning of that provision. (⁴²) It will be for the referring court to assess, on the basis of all the relevant circumstances, the economic nature of the compensation at issue and whether and to what extent that compensation conferred an advantage on Stockholms Hamn which the latter would not have obtained under normal market conditions. To that end, it will have to take into account, in particular, the fact that, as the Commission noted, Stockholms Hamn received, during the relevant period, a guaranteed income, independent from the operating costs of the lock, and, at least in part, from the fluctuations in the volume of traffic.

23. Stockholms Hamn also submitted before the referring court that it had been entrusted with the performance of a PSO during the relevant period and that, therefore, the existence of an advantage should be assessed by applying the criteria laid down by the Court in the judgment in Altmark. In that judgment, the Court stated that a State measure, in so far as it must be regarded as compensation for the services provided by the recipient undertakings in order to discharge PSOs, is not caught by Article 107(1) TFEU. (⁴³) It laid down four cumulative conditions which must be satisfied in order for such compensation to escape classification as State aid. (⁴⁴)

24. The first of the conditions laid down in the judgment in Altmark is to verify that the recipient undertaking has actually been entrusted with PSOs to discharge, and that those PSOs are clearly defined. (⁴⁵) To that end, the operator or operators concerned must be entrusted with a public service task by an act of the public authority. (⁴⁶) The concept of PSO within the meaning of the judgment in Altmark corresponds to that of a ‘service of a general economic interest’ (SGEI), within the meaning of Article 106(2) TFEU. (⁴⁷) Although the latter is not defined at EU level, the Court has clarified that that concept covers services of economic interest exhibiting ‘special characteristics’ as compared with the general economic interest of other economic activities. (⁴⁸)

25. In the present case, it cannot be ruled out that, during the relevant period, Stockholms Hamn may have been entrusted with a PSO within the meaning of the judgment in Altmark, in so far as the provision of lock operations for commercial vessels free-of-charge during that period seems to constitute an obligation imposed by law and subsequently formalised in a contract concluded with the administrative authority delegated for that purpose, by which the Swedish authorities have pursued the objective of ensuring an optimal distribution of commercial maritime traffic in the general interest is ensured. (⁴⁹) It is, however, for the referring court to assess, in the light of all the relevant factors, whether it was actually so entrusted. If it was, it will be for that court to verify that the other conditions laid down in the judgment in Altmark are satisfied.

26. The second and third conditions contribute to ensuring that no overcompensation is paid to undertakings entrusted with fulfilling PSOs. (⁵⁰) The information provided by the referring court in its request for a preliminary ruling does not make it possible to determine to what extent those conditions are satisfied. It is apparent, in particular, from the order for reference and from the documents lodged at the Court Registry that the compensation agreement established in an objective manner the parameters for calculating and reviewing the compensation to be paid to Stockholms Hamn and that, in addition, it provided for a mechanism that was intended to allow for the recovery, at least in part, of the sums overpaid at the end of each five-year period. (⁵¹) However, it is not clear how the fees applied in order to determine the amount of compensation based on the volume of traffic were calculated. Furthermore, in so far as the amount of compensation appears to have been determined without taking into consideration the costs associated with the provision of the lock operations covered by the compensation contract, doubt nevertheless arises as to whether the third condition, according to which the compensation must not exceed what is necessary to cover all or part of the costs incurred in the discharge of public service obligations together with, where appropriate, a reasonable profit, is satisfied. (⁵²)

27. Finally, the fourth condition laid down in the judgment in Altmark does not appear to be satisfied either. It does not appear to be the case, from the information provided by the referring court, that the level of the compensation at issue was determined, as required by that condition, on the basis of an analysis of the costs that a typical undertaking, well run and adequately equipped so as to be able to meet the necessary public service requirements, would have to bear in order to fulfil those obligations.

3. The effect on trade between Member States and on competition

28. In accordance with the Court’s settled case-law, for the purpose of categorising a national measure as ‘State aid’, it is not necessary to establish that the aid 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. (⁵³)

29. In the present case, as mentioned in point 19 of this Opinion, Hammarby Lock constitutes one of the access routes for commercial traffic between the Baltic Sea and Lake Mälaren, and it cannot be ruled out that it may not only be in competition with other inland waterways but also with other modes of transport, such as road or rail transport. It cannot therefore be ruled out a priori that, if the referring court were to conclude that the compensation at issue conferred an advantage on Stockholms Hamn within the meaning of Article 107(1) TFEU, that advantage, having regard also to the degree of connectivity and accessibility of the region in which Hammarby Lock is located, may be liable to affect trade between Member States and distort competition. It is for that court to carry out the necessary verifications in that regard.

B. The second and third questions referred

30. By the second and third questions referred, the referring court asks, in essence, whether, in the event that the compensation at issue, provided for in an agreement concluded before Sweden’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 under which it was established.

31. The classification of State aid as existing aid or new aid has different procedural consequences. Whilst Article 108(1) TFEU allows for existing aid to be implemented as long as the Commission has not found it to be incompatible with the internal market, Article 108(3) 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. (⁵⁴)

32. Under 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 of Austria, Finland and Sweden (⁵⁵) … all aid which existed prior to the entry into force of the TFEU 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 TFEU in the respective Member States’. Aid established before the accession of a State to the European Union therefore constitutes, in principle, existing aid and may continue to be paid as long as the Commission has not declared it incompatible.

33. The referring court is uncertain, in the first place, as to the scope of Article 144 of the Act of Accession, which provides, in subparagraph (a), 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].’

34. It is common ground between the parties that the compensation at issue was not notified to the Commission. Although Article 144 of the Act of Accession refers generally to aid schemes under Articles 107 and 108 TFEU, its position in Title VI of the Act of Accession, relating to agricultural products, (⁵⁶) leads to the conclusion – as already observed by Advocate General Sharpston (⁵⁷) and implicitly held by the Court (⁵⁸) – that the notification obligation laid down by that Article concerns only agricultural products, as defined in Article 137 of the Act of Accession, (⁵⁹) and is of no relevance in relation to non-agricultural aid. I therefore consider that the fact that the compensation at issue was not notified to the Commission in accordance with Article 144(a) of the Act of Accession, does not in itself preclude it from being existing aid.

35. In the second place, the referring court asks whether that compensation can continue to be regarded as existing aid despite the extensions and adjustments to which it has been subject. Under Article 1(c) of Regulation 2015/1589, new aid means ‘all aid, that is to say, aid schemes and individual aid, which is not existing aid, including alterations to existing aid’. Article 4(1) of Regulation (EC) No 794/2004 (⁶⁰) provides that ‘for the purposes of Article 1(c) of Regulation [2015/1589], 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 …’. (⁶¹) Only a substantial alteration to existing aid, that is to say an alteration – of a subjective, objective or temporal nature (⁶²) – that affects its constituent elements and is liable to alter the assessment of its compatibility with the internal market, gives rise to new aid. (⁶³)

36. In the present case, the validity of the compensation agreement was automatically extended every five years until its termination in 2021. The amount of the compensation at issue was updated annually on the basis of the consumer price index and recalculated every five years on the basis of a formula which, according to the documents before the Court, does not appear to have been altered over the years. Both the extensions and the variations in the amount of the sums paid occurred in accordance with the original terms of the compensation agreement. In those circumstances, I wonder whether they can be regarded as constituting ‘alterations’ within the meaning of Article 108 TFEU and Regulation 2015/1589 and Regulation No 794/2004 and not merely an effect of the implementation of that agreement.

37. In particular, I do not think that automatic variations in the amounts of pecuniary aid in a situation of inflation can be regarded as such. (⁶⁴) As regards the five-year extensions, whilst, in several judgments, the Court has made it clear that the extension of existing aid constitutes new aid, (⁶⁵) those judgments concerned situations in which the alterations at issue were alterations introduced on the basis of acts which occurred after the aid had been authorised by the Commission. In circumstances which are, in some respects, similar to those in the main proceedings, the Court has instead held that only an extension beyond the time limits of the aid at issue, as provided for in the contract which established it before the accession of the Member State concerned to the European Union, and not the normal operation of that contract, with its automatic periodic extensions, entailed alterations to an existing aid scheme. (⁶⁶) It is, however, for the referring court to make the necessary determinations in that regard and, in particular, to assess whether the five-year extensions in the absence of termination of the contract could actually be considered to be automatic. Finally, as regards the redefinition of the basic amount of the compensation at issue on the expiry of each five-year period, it will be for that court to assess whether, as the Sjöfartsverket submits, that redefinition, although occurring on the basis of a formula which remained constant over time, in fact entailed a series of renegotiations which could be classified as ‘alterations’, in particular in so far as it required the parties to agree upon the volume of traffic to be taken into consideration. In that case, it will be necessary to examine further whether those alterations can be classified as ‘substantial’.

III. Conclusion

38. On the basis of all the foregoing considerations, I propose that the Court should answer the questions referred by the Stockholms tingsrätt (District Court, Stockholm, Sweden) as follows:

Article 107(1) TFEU must be interpreted 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 that company’s undertaking to provide free of charge a certain service, for which fees were charged until the conclusion of the agreement, may constitute State aid where that company must be regarded, in relation to the service in question, as an undertaking for the purposes of the application of that provision and where that compensation confers on that company an advantage which it would not have obtained under normal market conditions, which is liable to affect trade between Member States and distort competition. It is for the national court to assess, on the basis of all the relevant circumstances, whether and to what extent those conditions are satisfied.

Article 1(b)(i) and (c) of Regulation No 2015/1589 must be interpreted as meaning that, assuming that it constitutes aid within the meaning of Article 107(1) TFEU, such compensation, the payment of which, in accordance with the original terms of the contract which established it, was extended for periods of five years in the absence of notice of termination of that contract and the amount of which was altered, first, annually, on the basis of the consumer price index and, secondly, at the expiry of each five-year period, on the basis of the extent of the service provided free of charge, in accordance with a formula which remained unchanged over time, constitutes, subject to verification by the national court, existing aid within the meaning of those provisions.