OverviewPolicy and track record
Outline your jurisdiction’s state aid policy and track record of compliance and enforcement. What is the general attitude towards subsidies in your system?
The Danish state aid policy is generally to comply with state aid rules. Denmark has a good track record of complying with EU state aid rules and notifying potential aid to the European Commission (the Commission). Not many cases regarding Denmark’s non-compliance with EU state aid rules exist.
According to the Commission’s 2017 State Aid Scoreboard, Danish state aid expenditure calculated in terms of percentage of GDP in 2016 was above the EU average. State aid was primarily granted for general horizontal purposes such as employment, research, development and innovation, culture, climate, environment and renewable energy. Denmark has a strong public sector and subsidies play a relatively important role.
Some of the most recent state aid cases concerning Denmark include aid to an offshore windfarm; operating and investment aid to Aarhus airport; services of general economic interest (SGEI) compensation to Bornholm airport; aid to horse race betting; a rail freight subsidy scheme; tax exemption for agricultural water users; and a winding-up scheme for small banks.Relevant authorities
Which national authorities monitor compliance with state aid rules and have primary responsibility for dealing with the European Commission on state aid matters?
No particular central Danish authority is responsible for monitoring compliance with EU state aid rules and dealing with the Commission in state aid matters. The public authority wishing to grant aid is responsible for complying with the EU state aid rules and dealing with the Commission. The State Aid Committee and the State Aid Secretariat advise public bodies within the state’s central organisation (ministries and government agencies) with regard to EU state aid law, along with notifications to and dialogue with the Commission. The State Aid Secretariat is situated in the Danish Ministry of Industry, Business and Financial Affairs and functions as secretariat for the government’s inter-ministerial State Aid Committee.
The Danish Act on Competition (DAC), section 11a, lays down national Danish state aid rules. The Danish Competition and Consumer Authority (DCCA) is responsible for the administration and enforcement of these rules. The DCCA may order the recovery of unlawful state aid or give an injunction requiring the granting of unlawful state aid to cease. The DCCA may also have secondary competence in relation to state aid that may affect trade between member states - for example, in cases where the Commission does not examine the case, or where the Commission directs the case to the DCCA because it considers the DCCA best placed to examine the case.
Which bodies are primarily in charge of granting aid and receiving aid applications?
The body in charge of granting aid and receiving aid applications depends on the relevant state aid scheme or measure. Aid may be granted by, for example, the central organisation of the state, municipalities and funds such as Innovation Fund Denmark and the Copenhagen Film Fund.General procedural and substantive framework
Describe the general procedural and substantive framework.
State aid granted by Danish authorities is governed by public law. A legal basis is required to grant state aid. Such legal basis may be found in various different rules under both written legislation and unwritten basic legal principles.National legislation
Identify and describe the main national legislation implementing European state aid rules.
State aid rules in the Treaty on the Functioning of the European Union (TFEU) and EU regulations have direct effect in Denmark and are generally not implemented into Danish legislation.
Other EU state aid rules in, for example, directives have been implemented in various different Danish legislative acts and executive orders. For example, Commission Directive 2006/111/EC of 16 November 2006 on the transparency of financial relations between member states and public undertakings as well as on financial transparency within certain undertakings is implemented by Executive Order No. 590 of 20 June 2008 by virtue of the DAC, section 11c.
What are the most significant national schemes in place governing the application and the granting of aid, that have been approved by the Commission or that qualify for block exemptions?
The Commission has approved various Danish state aid schemes covering, inter alia, aid to renewable energy and research and development, rescue aid to banks and regional aid.
A recent example of a Commission case regarding a Danish state aid scheme is SA.49918/SA.50715/SA.50717. Denmark had notified three aid schemes: (i) the organisation of a technology-neutral tender for the period 2018-2019, (ii) the transitional aid scheme for onshore wind turbines affected by the transition to the technology neutral tender scheme, and (iii) aid for onshore wind turbines with test or demonstration purpose in Denmark for 2018-2019 outside the two national centres for large wind turbines. The Commission noted that three notified schemes aim at promoting the generation of electricity from wind and solar power. Thus, the Commission assessed the notified aid schemes on basis of the general compatibility provisions of the Guidelines on State aid for environmental protection and energy 2014-2020, and the specific compatibility criteria for operating aid granted for electricity from renewable energy sources. The Commission found the schemes pursued an objective common interest in a necessary and proportionate way, without unduly affecting competition and trade, and therefore approved the schemes.
Recently, the Commission also approved an extension of an aid scheme within the transportation sector, in Case SA51325. The case concerned the Danish International Register of Shipping (DIS) regime. The DIS scheme consist of an exemption for ship owners from payment of income tax of their seafarers working on board ships registered in DIS. The Commission noted that the scheme would have an incentive effect on beneficiaries to maintain or flag their vessels in the EEA and to contribute to the development of the EEA maritime sector.General Block Exemption Regulation
Are there any specific rules in place on the implementation of the General Block Exemption Regulation (GBER)?
The GBER has direct effect in Denmark and is not implemented into Danish legislative acts.
Public ownership and Services of General Economic Interest (SGEI)Public undertakings, public holdings in company capital and public-private partnerships
Do state aid implications concerning public undertakings, public holdings in company capital and public-private partnerships play a significant role in your country?
Yes, state aid implications concerning public undertakings, public holdings in company capital and public-private partnerships have played a significant role in Denmark. For example, there have been several cases regarding aid to former incumbent airline SAS, incumbent rail operator DSB and Danish public television broadcaster TV2/Danmark.
Several state aid decisions regarding TV2/Danmark’s public service obligations have been issued. One of the cases is Case C-660/15 P regarding compensation to TV2/Danmark for the costs involved in the performance of its public service obligations regarding production and broadcasting of national and regional television programmes. In this decision, the Commission found that compensation to TV2/Danmark in the years 1995 to 2002 was compatible state aid with reference to article 106(2) TFEU. Viasat, a commercial television company competing with TV2/Danmark, disagreed and appealed the Commission’s decision to the General Court (Case T-125/12).
The General Court found that it was unnecessary to rule on the plea regarding annulment of the Commission’s decision regarding state aid granted in 1995 and 1996 since the court had found in another judgment of the same date in Case T-674/11 that the Commission’s decision should be annulled insofar as it categorised compensation to TV2/Danmark granted in 1995 and 1996 as state aid. The General Court dismissed the action as to the remainder. Viasat appealed the General Court’s judgment to the European Court of Justice (ECJ). The ECJ dismissed the appeal. It found that the Commission had not erred in law in that the Commission is not required, contrary to what was claimed by the appellant, to examine whether the conditions laid down by the case law in Altmark, in particular the second and fourth of those conditions, are met to assess a measure under article 106(2) TFEU.
On 9 November 2017, the ECJ ruled on three related cases: C-649/15 P (where TV2/Danmark claimed that it did not receive state aid in 1997-2002); C-656/15 P (where the Commission claimed that TV2/Danmark also received state aid in 1995 and 1996); and C-657/15 P (where Viasat claimed that TV2/Danmark received state aid in 1995 and 1996), which were all appeals of the General Court’s judgment in Case T-674/11. The ECJ dismissed TV2/Danmark’s appeal and set aside the judgment of the General Court to the extent that it annulled Commission Decision 2011/839/EU of 20 April 2011 in that the Commission held that the advertising revenue for 1995 and 1996 constituted state aid.
Recently, on 28 May 2018, the Commission also approved state compensation grated to PostNord for the provision of universal postal service, in Case SA.47707. The case concerned approximately €147 million provided by the Danish State to Post Danmark A/S, paid to and through its parent company PostNord AB. The Danish and Swedish states owned all shares in PostNord AB. The Commission noted that a private investor in PostNord AB’s circumstances would have most likely made a similar capital injection instead of allowing its subsidiary to go bankrupt.SGEI
Are there any specific national rules on SGEI? Is the concept of SGEI well developed in your jurisdiction?
Specific national rules on services of general economic interest do not exist in Denmark. However, an executive order (No. 590 of 20 June 2008) on the transparency regarding the financial connections between public authorities and public undertakings and regarding the financial transparency in certain undertakings has been issued.
Certain undertakings active within areas such as television, radio, energy and transport have been entrusted with operation of services of general economic interest.
As mentioned in question 8, there have been a number of state aid decisions regarding compensation to the Danish public television broadcaster TV2/Danmark and the correct use of article 106(2) TFEU and the Altmark criteria. TV2/Danmark has a public service mission to produce and broadcast national and regional television programmes. The Danish Minister for Culture has laid down rules governing TV2/Danmark’s public service obligations on the main channel in a public service permit, including rules regarding financing of the broadcasting business. TV2/Danmark’s public service obligations are also regulated in legislation.
The SGEI concept is interpreted in line with the case law of the EU courts, and the concept is generally well developed. The state relies on the state aid principles and guidelines that apply at the time of the granting of aid. The Commission Communication on a European Union framework for State aid in the form of public services compensation (the SGEI Framework), as well as sector guidelines, if relevant, apply. For instance, SGEI aid was recently granted in accordance with the SGEI Framework and the 2014 Guidelines on State aid to airports and airlines to the airport of Bornholm and approved on the basis of article 106(2) TFEU (see the Commission’s decision in SA49331).
Considerations for aid recipientsLegal right to state aid
Is there a legal right for businesses to obtain state aid or is the granting of aid completely within the authorities’ discretion?
Generally, there is no legal right for businesses in Denmark to obtain state aid. However, if legislation, for example, sets out conditions for obtaining state aid under a state aid scheme and an undertaking fulfils these conditions, the undertaking will normally be eligible for state aid under the scheme on terms equal to those of other applicants. The authority granting state aid may have some discretion regarding the granting of state aid - for example, if the budget does not allow the authority to grant state aid to all applicants. Applicants may refer to the principle of equal treatment.Main award criteria
What are the main criteria the national authorities will consider before making an award?
Danish authorities are bound by the rule-of-law principle and can thus only consider legal criteria. The relevant criteria considered in connection with the granting of state aid depend on the relevant aid measure or scheme. In past years, the following criteria have generally been rated highly: green transition, renewable energy, global marketing (eg, export promotion and tourism) and culture.Strategic considerations and best practice
What are the main strategic considerations and best practices for successful applications for aid?
The main strategic considerations and best practices for application of state aid entail scouting for and being well informed of relevant aid schemes and the political climate. Applicants should also ensure that the application complies with the relevant criteria for receiving state aid and that national and EU state aid law is complied with.Challenging refusal to grant aid
How may unsuccessful applicants challenge national authorities’ refusal to grant aid?
There are no special rules on challenging state aid decisions in Denmark. Unsuccessful applicants are in some instances but not always able to challenge a refusal to grant aid within the administrative system (administrative appeal). Such a challenge may also be brought before the Danish courts.Involvement in EU investigation and notification process
To what extent is the aid recipient involved in the EU investigation and notification process?
The EU investigation and notification process is generally conducted by the authorities. The aid recipient may be involved in the process and is likely to benefit from supporting the authorities with information. This is particularly the case in large and complex state aid cases. However, there are no legal rules specifically regulating the position of aid recipients in state aid cases. Aid recipients may invoke general provisions under Danish public administrative law, including rules on access to public authorities’ files.
Strategic considerations for competitorsComplaints about state aid
To which national bodies should competitors address complaints about state aid? Do these bodies have enforcement powers, and do they cooperate with authorities in other member states?
This depends on which authority has granted the aid. Generally, complaints regarding an authority’s final state aid decision may be addressed to the relevant superior authority or an authority that has delegated its competence externally to the authority having granted the aid. This does not apply for complaints regarding municipalities’ state aid decisions. Such complaints may be addressed to the Danish Appeals Authority, which supervises the municipalities’ compliance with the law relevant to the municipalities. For example, in a statement of 2 October 2017, the Danish Appeals Authority informed that it considered guarantees granted by Ærø municipality to be unlawful state aid. The Danish Appeals Authority may decide to direct the case to the DCCA. The Danish Appeals Authority decides whether it will mount the case and is rarely obligated to do so. A competitor may also try to address the granting authority directly.
Competitors may also complain to the DCCA, which can issue orders for the termination or repayment of aid granted from public funds to support certain forms of commercial activity if the direct or indirect object or effect of the aid is distortion of competition and the aid is not lawful according to public regulation. The DCCA receives more complaints than it has resources to handle and is free to prioritise which cases it takes on. The DCCA can also refrain from dealing with a case if the aid scheme may affect trade between member states of the European Union.
The DCCA engages in both informal and formal cooperation with competition authorities in other member states. For example, an annual meeting is held between the Nordic competition authorities with the purpose of exchanging experience on legislation, including discussing cases and issues of mutual interest. The DCCA also participates in networks, such as OECD’s Competition Committee, the European Competition Network, the International Competition Network and the World Trade Organization.Dealing with illegal or incompatible aid
How can competitors find out about possible illegal or incompatible aid from official sources? What publicity is given to the granting of aid?
As of 1 July 2016, authorities granting state aid in excess of €500,000 to undertakings must register the aid in a public register (special rules apply in the case of aid for agriculture and fishing).
All draft bills are subject to public consultation. The government may also decide to make proposals for new executive orders subject to public consultation. Draft bills and proposals for new executive orders subject to public consultation along with the results of the public consultation (and in some cases also other relevant material) can be found at www.hoeringsportalen.dk. Further, all draft bills and public consultation results, preparatory works, transcripts of Parliament’s debates, etc are published on Parliament’s website at www.ft.dk.
Give details of any legislation that gives competitors access to documents on state aid granted to beneficiaries.
Under section 7 of the Danish Act on Public Access to Documents in Public Files, anyone can demand access to documents that have been part of or have been created by public authorities as part of administrative casework in connection with the authority’s activities. Many documents are, however, exempt from such access. This is the case for internal documents, documents containing trade secrets and where confidentiality follows from EU law obligations, for example.
What other publicly available sources can help competitors obtain information about possible illegal or incompatible aid?
Competitors may look into publicly available annual reports. They may also look into reports from the state auditor, the Danish Finance Act and the Ministry of Industry, Business and Financial Affairs’ annual report on promotion of trade and aid.Other ways to counter illegal or incompatible aid
Apart from complaints to the national authorities and petitions to national and EU courts, how else may complainants counter illegal or incompatible aid?
Competitors can complain to the Commission. They could also seek to influence authorities and attain political intervention, for example, from Parliament, by contacting a relevant parliamentary committee or raising the issue in the media.
Potentially overly aggressive behaviour, including interference in contractual arrangements made by the aid recipient, may amount to an unfair business practice or defamation, although no such cases appear to have arisen in the past.
Private enforcement in national courtsRelevant courts and standing
Which courts will hear private complaints against the award of state aid? Who has standing to bring an action?
In principle, all Danish courts will hear private complaints against the award of state aid. Proceedings can generally be instituted in the district courts. If the case may have implications for rulings in other cases or is of special interest to the public, and if a party requests so, the Danish High Court as the court of first instance may try the case. Unless otherwise agreed between the parties, cases where the application of the DAC (which contains the Danish state aid rules) has significant importance may also be instituted in the Danish Maritime and Commercial Court.
Any natural or legal person with a direct interest in or adequate affiliation to a case can commence court proceedings regarding actual and adequately specific matters. This may comprise competitors.Available grounds
What are the available grounds for bringing a private enforcement action?
The main grounds for bringing a private enforcement action are article 108(3) TFEU and section 11a of the DAC. This section does not require that trade between member states of the European Union be affected. Public law and the law of non-contractual damages may also be invoked.Defence of an action
Who defends an action challenging the legality of state aid? How may defendants defeat a challenge?
Normally, an action challenging the legality of state aid will be directed at the authority that granted the aid in question. Provided they have sufficient interest in the case, other parties, such as the aid recipient or other authorities, may intervene in favour of the defendant.
Defendants may defeat a challenge by convincing the court that state aid was not granted or that state aid was granted in compliance with EU or national state aid law. How this can be accomplished depends on the specific case.Compliance with EU law
Have the national courts been petitioned to enforce compliance with EU state aid rules or the standstill obligation under article 108(3) TFEU? Does an action by a competitor have suspensory effect? What is the national courts’ track record for enforcement?
Danish case law on private enforcement of EU state aid rules is scarce.
In a judgment of 25 January 2016, the Danish Western High Court found that a loan guarantee given by a municipality to two heating companies without consideration constituted state aid under article 107 TFEU and that the municipality’s decision to guarantee the loan without consideration was thus invalid. Consequently, the municipality was entitled to claim guarantee commission going forward.
In another judgment of 23 November 2016, the Danish Supreme Court found that the Danish state was not obligated to pay damages to two ship’s mates for a loss allegedly suffered because their tax-free net salary under the Danish Seafarers Tax Act was not increased as a result of general tax relief. They claimed, inter alia, that the Danish state had infringed EU state aid law. The Supreme Court found that the Danish state had not infringed EU state aid law.
An action brought by a competitor against a state aid measure before the courts will normally not have suspensory effect.
When called upon to apply EU state aid rules to a case pending before it, a national court will be expected to rule in accordance with the case law of the EU courts.Referral by national courts to European Commission
Is there a mechanism under your jurisdiction’s rules of procedure that allows national courts to refer a question on state aid to the Commission and to stay proceedings?
The Procedural Regulation (Council Regulation (EU) 2015/1589) has direct effect in Denmark. Under article 29 of the Regulation, national courts may ask the Commission to transmit to them information in its possession or its opinion on questions concerning the application of state aid rules.
To our knowledge, referrals are not common. The national courts will generally only refer questions to the ECJ if they find it necessary.
To our knowledge, the Commission has not submitted amicus curiae observations in Danish cases under article 29(2) of the Procedural Regulation.Burden of proof
Which party bears the burden of proof? How easy is it to discharge?
Danish courts have freedom to consider evidence. Who bears the burden of proof is generally decided on a case-by-case basis. Generally, the party claiming the existence of (illegal) state aid bears the burden of proof. However, in a case where a party contests a recovery decision, that party will generally bear the burden of proof. Whether the burden of proof will be difficult to lift depends on the specific circumstances of the case, but state aid cases may generally be more complex than many other cases.
Under court proceedings, the court may order disclosure of evidence, provided that the conditions in the Danish Administration of Justice Act are fulfilled. The taking of evidence without a trial is also possible if the court allows it.Deutsche Lufthansa scenario
Should a competitor bring state aid proceedings to a national court when the Commission is already investigating the case? Do the national courts fully comply with the Deutsche Lufthansa case law? What is the added value of such a ‘second track’, namely an additional court procedure next to the complaint at the Commission?
To our knowledge, there has not been a Danish case addressing the Deutsche Lufthansa case law specifically.
The national courts are expected to comply with the case law of the EU courts in cases concerning EU state aid law. Thus, if the Commission’s preliminary assessment in a decision to initiate the formal examination procedure is that the measure at issue constitutes state aid, a national court will be expected to refrain from taking decisions in a case pending before it that conflict with a decision of the Commission, even if the Commission’s decision is provisional and could possibly be overturned in its final decision.
Whether a competitor should bring state aid proceedings to a national court when the Commission is already investigating the case depends on the specific facts of the case. Normally, it might be wise to await the Commission’s final decision. However, case-specific considerations related to, for example, limitation periods, the evidence situation, or specific interests of the claimant may indicate otherwise (eg, when a competitor is seeking damages).Economic evidence
What is the role of economic evidence in the decision-making process?
Danish courts may take economic evidence into account, and there are several examples of Danish courts having done so. For example, the parties may obtain an expert report from an economic expert appointed by the court. The parties can also obtain expert statements from relevant institutions or organisations.Timeframe
What is the usual time frame for court proceedings at first instance and on appeal?
As a minimum, probably approximately two years per instance. The length of proceedings depends on the individual case, including whether an expert report is obtained and whether the proceedings are suspended.Interim relief
What are the conditions and procedures for grant of interim relief against unlawfully granted aid?
Under Chapter 40 of the Danish Administration of Justice Act, Danish courts may grant interim relief in cases where the public authority acts as a private operator - for example, through an agreement with an aid recipient. In cases where a public authority does not act as a private operator but in its capacity as a public authority, the court may - as an exception - assign suspensory effect to commencement of legal proceedings. This is not common.Legal consequence of illegal aid
What are the legal consequences if a national court establishes the presence of illegal aid? What happens in case of (illegal) state guarantees?
The legal consequences of a court decision establishing the presence of aid that is unlawful under the national state aid rules contained in the DAC will depend on the specific case and the claim brought before the court.
In accordance with settled case law of the ECJ, where a national court is confronted with unlawfully granted aid under the EU state aid rules, it must draw all legal consequences from this unlawfulness under national law. The national court must, therefore, in principle order the full recovery of unlawful state aid from the beneficiary.
If a Danish court has established that a state guarantee infringes the EU state aid rules, the court will be expected to apply the principles established in EU case law. In accordance with ECJ case law, it is for the national courts to draw the consequences of a finding of unlawful state aid for the validity of a transaction under national law. A national court is required to ensure that the aid is recovered and, to that end, the court can cancel the guarantee - in particular where, in the absence of less onerous procedural measures, that cancellation is such as to lead to or facilitate the restoration of the competitive situation that existed before that guarantee was provided. However, as stated in ECJ case law, EU law does not impose any specific conclusion that the national courts must necessarily draw with regard to the validity of the acts relating to the implementation of the aid.
In its judgment of 25 January 2016, the Danish Western High Court found that a loan guarantee granted by a municipality to two heating companies without consideration constituted state aid under article 107 TFEU. The High Court held that the municipality’s decisions to grant the guarantees without remuneration were null, and that the municipality was entitled to require remuneration for the guarantees.Damages
What are the conditions for competitors to obtain damages for award of unlawful state aid or a breach of the standstill obligation in article 108(3) TFEU? Can competitors claim damages from the state or the beneficiary? How do national courts calculate damages?
A competitor claiming damages must substantiate, inter alia, that a culpable or wrongful act has been committed (through the granting of unlawful state aid or breach of the standstill obligation), that the competitor has suffered a certain loss, that there is a causal connection between the culpable or wrongful act and the loss, and that the loss was foreseeable.
Generally, a party having suffered a loss may usually claim damages in an amount corresponding to the loss suffered by that party owing to the culpable or wrongful act. Thus, the injured party shall be compensated so that the party will be placed in a position corresponding to the position that the party would have been in had the culpable or wrongful act not occurred. This implies a comparison between the actual course of events and a hypothetical course of events, where the latter is the likely course of events absent the culpable or wrongful acts (‘but-for analyses’). The damages are quantified as the economic difference between these two courses of events. Quantification of damages in a state aid case is likely to be difficult. Danish courts often reduce damages claims on a discretionary basis.
A competitor may in principle claim damages from either the state or the beneficiary, provided the general conditions for liability presented above are fulfilled. Generally, it can be expected that a claim for damages against the state will have a higher chance of succeeding, as it may be difficult to fulfil the general conditions for liability presented above in a case against the beneficiary.
State actions to recover incompatible aidRelevant legislation
What is the relevant legislation for the recovery of incompatible aid and who enforces it?
There is no specific Danish legislation regarding recovery of incompatible EU state aid. The Procedural Regulation (Council Regulation (EU) 2015/1589) has direct effect in Denmark.
Under section 11a of the DAC, the DCCA may issue orders regarding the repayment of aid, including interest and compound interest, to the Danish State Treasury. In cases where trade between member states of the European Union may be affected, the DCCA may abstain from handling the case pursuant to section 11a of the DAC.Legal basis for recovery
What is the legal basis for recovery? Are there any grounds for recovery that are purely based on national law?
Recovery of EU state aid is governed by the relevant EU rules including the Procedural Regulation (Council Regulation (EU) 2015/1589).
The legal principle of condictio indebiti may also be invoked, for example, if aid has been granted erroneously.
The DCCA may also issue orders regarding the repayment of aid granted from public funds to support certain forms of commercial activity to the Danish State Treasury if the direct or indirect object or effect of the aid is distortion of competition and the aid is not lawful according to public regulation. In cases where trade between member states of the European Union may be affected, the DCCA may abstain from handling the case pursuant to section 11a of the DAC.Commission-instigated infringement procedures
Has the Commission ever opened infringement procedures before the CJEU because of non-recovery of aid under article 108(2) TFEU?
To our knowledge, the Commission has not opened an infringement procedure against Denmark for failure to recover unlawful aid.Implementation of recovery
How is recovery implemented?
An administrative decision on recovery of aid will suffice. The decision may generally be brought before the courts.
In cases where a Commission decision or a national enforceable judgment is issued, the national authority responsible for the regulation, administrative act or agreement authorising the aid measure will order recovery.
In cases where the Danish state aid rules in section 11a of the DAC apply, recovery is ordered by the DCCA.Article 108(3) TFEU
Can a public body rely on article 108(3) TFEU?
Yes. For example, in 2016, the Western High Court ruled that a municipality that had granted state aid in the form of guarantees without remuneration could rely on the state aid rules and thus require remuneration for the guarantees. The municipality’s decisions to grant the guarantees without remuneration were null.Defence against recovery order
On which grounds can a beneficiary defend itself against a recovery order? How may beneficiaries of aid challenge recovery actions by the state?
Recovery actions by way of authority decisions may generally be challenged before the courts and in some cases also before public authorities.
In the case of recovery decisions issued by the DCCA pursuant to the Danish state aid rules in section 11a of the DAC, decisions may be appealed to the Competition Appeals Tribunal. Once the Competition Appeals Tribunal has issued a decision, this decision may be brought before the courts.
The beneficiary may, for example, invoke statutes of limitation. The Danish Competition Appeals Tribunal and Danish courts are probably less likely to take account of the beneficiary’s allegations based on the principles of legitimate expectations or proportionality.Interim relief against recovery order
Is there a possibility to obtain interim relief against a recovery order? How may aid recipients receive damages for recovery of incompatible aid?
As mentioned in question 37, decisions issued by the DCCA pursuant to section 11a of the DAC may be appealed to the Competition Appeals Tribunal. The Competition Appeals Tribunal can assign suspensory effect to the appeal and has done so in a case regarding recovery of state aid. As a main rule, however, suspensory effect is not assigned.
Likewise, Danish courts may - as an exception - assign suspensory effect to commencement of legal proceedings, but this is not common.
To our knowledge, there are no examples of Danish case law awarding aid recipients damages for recovery of incompatible aid.
Update and trendsRecent developments
Are there any emerging trends or hot topics relating to state aid control in your jurisdiction? What are the priorities of the national authorities? Are there any current proposals to change the legislation? Are there any recent important cases in the field of fiscal aid (taxes), infrastructure, or energy? Any sector enquires?
Danish State aid practice mainly mirrors European Union State aid law, and the authorities pursue few cases based on the state aid provision in national Danish law. Hence, the state aid priorities and development in Denmark correspond to the situation in the European Union.