Pomoc państwa - Dania i Szwecja - Pomoc państwa SA.47707 (2018/FC) Domniemana pomoc na rzecz Post Danmark dotycząca zastrzyku kapitałowego - Zaproszenie do zgłaszania uwag zgodnie z art. 108 ust. 2 Traktatu o funkcjonowaniu Unii Europejskiej

POMOC PAŃSTWA - DANIA I SZWECJA

Pomoc państwa SA.47707 (2018/FC) Domniemana pomoc na rzecz Post Danmark dotycząca zastrzyku kapitałowego

Zaproszenie do zgłaszania uwag zgodnie z art. 108 ust. 2 Traktatu o funkcjonowaniu Unii Europejskiej

(Tekst mający znaczenie dla EOG)

(C/2026/4356)

Pismem z dnia 30 czerwca 2026 r., zamieszczonym w autentycznej wersji językowej na stronach następujących po niniejszym streszczeniu, Komisja powiadomiła Danię i Szwecję o swojej decyzji w sprawie wszczęcia postępowania określonego w art. 108 ust. 2 Traktatu o funkcjonowaniu Unii Europejskiej dotyczącego wyżej wspomnianej pomocy.

Zainteresowane strony mogą zgłaszać uwagi na temat środka, w odniesieniu do którego Komisja wszczyna postępowanie, w terminie jednego miesiąca od daty publikacji niniejszego streszczenia i towarzyszącego mu pisma na następujący adres lub numer faksu:

European Commission

Directorate-General for Competition

State Aid Greffe

1049 Bruxelles/Brussel

BELGIQUE/BELGIË

[e-mail]

Otrzymane uwagi zostaną przekazane Danii i Szwecji. Zainteresowane strony zgłaszające uwagi mogą wystąpić z odpowiednio uzasadnionym pisemnym wnioskiem o objęcie klauzulą poufności ich tożsamości lub fragmentów zgłaszanych uwag.

TEKST STRESZCZENIA

W dniu 27 listopada 2017 r. Komisja otrzymała skargę od ITD Brancheorganisationen for den danske vejgodstransport ("ITD"), w której stwierdzono, że Szwecja i Dania przyznały pewne środki pomocy państwa na rzecz Post Danmark A/S ("Post Danmark") - spółki zależnej PostNord Group AB (spółki zależnej należącej w całości do PostNord AB, która z kolei jest własnością Szwecji (60 %) i Danii (40 %)). Jednym z tych środków był zastrzyk kapitałowy w wysokości 1 mld DKK (135 mln EUR) dokonany przez PostNord Group AB na rzecz Post Danmark w dniu 23 lutego 2017 r.

Dnia 28 maja 2018 r., po wstępnej analizie, Komisja przyjęła decyzję ("decyzja z 2018 r.") w sprawie szeregu środków przyznanych Post Danmark, w tym wspomnianego zastrzyku kapitałowego. W decyzji tej Komisja stwierdziła, że zastrzyk kapitałowy w wysokości 1 mld DKK dokonany przez PostNord Group AB na rzecz jej duńskiej spółki zależnej w dniu 23 lutego 2017 r. nie stanowił pomocy państwa, ponieważ skarżący nie przedstawił żadnego elementu, który wskazywałby na konieczność uznania, że środek można przypisać państwu duńskiemu, a nie grupie PostNord. Ponadto zdaniem Komisji istniały wyraźne elementy świadczące o tym, że zastrzyk kapitałowy był wówczas najlepszym rozwiązaniem dla grupy PostNord z ekonomicznego punktu widzenia, biorąc pod uwagę prawdopodobne konsekwencje upadłości Post Danmark dla grupy. W związku z tym Komisja uznała środek za zgodny z tym, co zrobiłby zwykły inwestor prywatny.

W następstwie odwołania wniesionego przez ITD i Danske Fragtmænd A/S Sąd, wyrokiem w sprawie T-561/18, częściowo unieważnił decyzję z 2018 r., stwierdzając, że w odniesieniu do zastrzyku kapitałowego Komisja napotkała poważne trudności w ramach swojej oceny i powinna była wszcząć formalne postępowanie wyjaśniające na podstawie art. 108 ust. 2 TFUE. Trybunał Sprawiedliwości utrzymał w mocy wyrok Sądu z dnia 10 listopada 2022 r. (C-442/21).

W związku z tym Komisja wszczęła szczegółowe postępowanie wyjaśniające, aby ocenić, czy:

- zastrzyk kapitałowy można przypisać państwu duńskiemu i państwu szwedzkiemu ze względu na (i) powiązania organizacyjne między państwami a PostNord AB, (ii) charakter działalności PostNord AB, (iii) nadzór i kontrolę nad zastrzykiem kapitałowym zatwierdzonym przez PostNord AB, sprawowane przez państwa przez prowadzenie dialogu między nimi a zarządem PostNord AB oraz (iv) inne czynniki, które mogłyby wskazywać na potencjalne zaangażowanie państw w zastrzyk kapitałowy, takie jak kwota zastrzyku kapitałowego;

- zastrzyk kapitałowy jest zgodny z warunkami rynkowymi, co oznacza, że jest zgodny z zasadą prywatnego inwestora (MEOP), a inwestor prywatny mógłby dokonać tego zastrzyku kapitałowego w tych samych okolicznościach, biorąc pod uwagę sytuację finansową Post Danmark i oczekiwania dotyczące rentowności po zastrzyku kapitałowym w porównaniu z alternatywą, jaką jest upadłość Post Danmark;

- w przypadku gdy środek stanowi pomoc państwa, czy można go uznać za zgodny z rynkiem wewnętrznym.

Komisja będzie dalej badać wyżej wymienione aspekty.

Zgodnie z art. 16 rozporządzenia Rady (UE) 2015/1589 wszelka niezgodna z prawem pomoc może podlegać odzyskaniu od beneficjenta.

PISMO

The Commission wishes to inform Denmark and Sweden that, having examined the information supplied by your authorities on the measure referred to above, it has decided to initiate the procedure laid down in Article 108(2) of the Treaty on the Functioning of the European Union ('TFEU').

1. PROCEDURE

(1) On 3 November 2017, the Danish authorities pre-notified an aid measure amounting to SEK 1 533 billion (approximately DKK 1 086 billion / EUR 146 million) ⁽¹⁾ to be provided by the Danish State to Post Danmark A/S (hereafter "Post Danmark") for the provision of the universal postal service (hereafter "USO") in Denmark between 2017 and 2019. The amount was paid to PostNord AB and then channelled to its subsidiary Post Danmark. PostNord AB is co-owned by Denmark and Sweden. The pre-notified measure was envisaged in an agreement concluded between the two States on 20 October 2017 (hereafter "the Agreement") to support the transformation plan for Post Danmark ⁽²⁾ .

(2) On 27 November 2017, the Commission received a complaint from ITD Brancheorganisationen for den danske vejgodstransport (hereafter "ITD") ⁽³⁾ regarding certain measures allegedly granted to Post Danmark in the past or to be granted to Post Danmark by Denmark and Sweden, in the framework of that Agreement. According to the complaint, the alleged State aid to Post Danmark consisted of:

(i) The pre-notified measure by Denmark on 3 November 2017 regarding the compensation in the amount of SEK 1 533 billion (approximately EUR 132 million) for Post Danmark for the provision of the USO in Denmark between 2017 and 2019;

(ii) a Danish administrative practice introduced through the Administrative Decision 1306/90 and the Administrative Regulation F 6742/90 that allowed the application of an exemption from value added tax ("VAT") for customers of mail-order companies and e-commerce companies (hereafter, jointly, the "e-commerce companies") ⁽⁴⁾ when those companies were purchasing parcel delivery services provided by Post Danmark as part of USO (hereafter the "Administrative Practice") ⁽⁵⁾ ;

(iii) the existence of a guarantee under which, in the event of Post Danmark's bankruptcy, Denmark undertook to pay to Post Danmark, without any consideration in return, the costs relating to the redundancy payments for former civil servants of Post Danmark who retained their status as a civil servants on 1 January 2002, the date of its transformation into a limited liability company, corresponding to three years' wages for each former civil servant;

(iv) alleged misallocation, between 2006 and 2013, of the common costs between services within the scope of USO and non-USO services. That misallocation would have resulted in an artificial increase in the cost of performing the universal service obligation and an artificial reduction of the costs of Post Danmark's commercial activities and thus constituted cross-subsidisation of Post Danmark's commercial activities by remuneration intended for the USO;

(v) a capital increase of 23 February 2017 into Post Danmark from its parent company PostNord Group AB of DKK 1 billion (approximately EUR 134 million), in so far as it was imputable to the Danish and Swedish States and did not satisfy the private investor in a market economy test (hereafter the "2017 capital injection");

(vi) future increases in Post Danmark's capital by Denmark, by Sweden, and by PostNord, as envisaged in the framework of the Agreement.

(3) On 8 February 2018, the Danish authorities notified their intention to grant to Post Danmark a compensation in the amount of SEK 1.533 billion for the provision of the USO during the period 2017 - 2019.

(4) Following further exchanges with the Danish and Swedish authorities and ITD, the Commission ⁽⁶⁾ , on 28 May 2018, after a preliminary examination and thus without having initiated the formal investigation procedure, adopted a decision on the notified measure and on certain measures covered in the complaint (hereafter, the "2018 Decision" ^{(7) )}. The 2018 Decision concluded that ⁽⁸⁾ :

(i) the notified aid measure for USO compensation to PostNord over the 2017-2019 period was compatible with the internal market on the basis of Article 106(2) TFEU, since it fulfilled all the requirements laid down in the SGEI Framework ⁽⁹⁾ ;

(ii) the State guarantee covering costs for redundancy payments to former civil servants in case of Post Danmark's bankruptcy constituted existing aid pursuant to Article 1(b)(iv) and Article 17(1) of Council Regulation (EU) 2015/1589 (hereafter the "Procedural Regulation") ⁽¹⁰⁾ ;

(iii) the cost allocation between Post Danmark's USO services and non-USO services did not constitute State aid;

(iv) the Administrative Practice did not constitute State aid;

(v) the 2017 capital injection did not constitute State aid.

(5) On 20 September 2018, ITD and Danske Fragtmænd A/S ⁽¹¹⁾ (hereafter, "Danske Fragtmænd", and together with ITD, the "applicants") brought an action for the annulment of the 2018 Decision before the General Court. In support of their action, the applicants raised a single plea in law, alleging that the Commission had failed to initiate the formal investigation procedure provided for in Article 108(2) TFEU, despite the serious difficulties raised by the assessment of the compensation for the provision of the USO in 2017-2019 and of the other measures referred to in ITD's complaint covered by the 2018 decision.

(6) By judgment in case T-561/18 ⁽¹²⁾ , the General Court partially annulled the 2018 Decision in so far as the Commission concluded, at the end of the preliminary examination procedure, that, first, the Administrative Practice and, secondly, the 2017 capital injection did not constitute State aid. By contrast, the General Court dismissed the action in so far as it concerned the three other measures assessed by the 2018 Decision (see recital (4)(i)-(iii)). The findings of the General Court as regards these three measures were upheld by the Court of Justice in case C-442/21 P ⁽¹³⁾ .

(7) On 27 January 2022, in light of the judgment in case T-561/18, ITD requested the Commission to open the formal investigation procedure with respect to the Administrative Practice and the 2017 capital injection (hereafter the "January 2022 Submission") and to find that those measures constitute State aid that is incompatible with the internal market. ITD also requested the Commission to withdraw the 2018 Decision in so far as the Commission concluded therein that the alleged misallocation of costs and cross-subsidisation did not constitute State aid, in light of a report of 15 January 2021 by the Rigsrevisionen ⁽¹⁴⁾ regarding the allocation of costs of Post Danmark between USO and non-USO activities.

(8) On 8 March 2022, the services of the Commission replied to the January 2022 Submission stating that (i) they had taken good note of the judgment in case T-561/18, and (ii) pursuant to Article 11 of the Procedural Regulation, the Commission may only revoke a decision where that decision was based on incorrect information provided during the procedure which was a determining factor for the decision. Up to that point, neither the Commission, nor the General Court had identified such incorrect information, thus the Commission did not have any reason to revoke the decision.

(9) On 24 October 2022, the Danish authorities had a meeting with the services of the Commission.

(10) On 7 March 2023, the services of the Commission sent a request for information to the Danish authorities regarding the 2017 capital injection, to which the Danish authorities replied on 4 April 2023.

(11) On 29 January 2024, ITD had a meeting with the services of the Commission concerning the Administrative Practice and the 2017 capital injection.

(12) On 5 February 2024, the Danish and Swedish authorities had a meeting with the services of the Commission.

(13) On 6 March 2024, ITD submitted further information on the Administrative Practice and the 2017 capital injection.

(14) On the same date, the Danish and Swedish authorities submitted further information on the 2107 capital injection.

(15) On 7 March 2025, the services of the Commission requested further information to the Danish authorities, to which they replied on 28 March 2025. On 15 May 2025, the services of the Commission requested further information to the Danish and Swedish authorities. The Danish authorities replied on 27 and 28 May 2025, whereas the Swedish authorities replied on 12 June 2025.

(16) On 18 June 2026, Denmark and Sweden exceptionally agreed to waive their rights deriving from Article 342 TFEU, in conjunction with Article 3 of Regulation 1/1958 ⁽¹⁵⁾ and to have this decision adopted and notified in English.

2. SCOPE OF THE CURRENT DECISION

(17) This decision concerns the 2017 capital injection, and follows the partial annulment the 2018 Decision by the General Court's judgment in case T-561/18, insofar as the Commission had concluded in that decision, at the end of the preliminary examination phase, that the 2017 capital injection does not constitute State aid.

(18) The present decision does not address the claims of the complainant regarding the Administrative Practice, also concerned by that judgment. Given the absence of relation with the 2017 capital injection, these claims will be addressed separately.

3. DESCRIPTION

3.1. The beneficiary

(19) The alleged beneficiary of the measure is Post Danmark, a wholly-owned subsidiary of PostNord Group AB ("PostNord Group AB") which, in turn, is a subsidiary of PostNord AB, that is co-owned by Denmark (40 %) and Sweden (60 %) while voting rights are shared 50-50. The whole undertaking including all its subsidiaries is referred to as "PostNord". Given the corporate structure described below, PostNord AB may also ultimately be considered as benefiting from the measure.

3.1.1. PostNord

(20) PostNord AB was created following a merger between Post Danmark and Posten AB in 2009 ⁽¹⁶⁾ . The intention behind the merger was to establish a more robust undertaking and to meet increasing pressure on the companies' core product, i.e. the distribution of letters. It was expected that the merger would result in significantly reduced costs due to the sharing of IT and logistics infrastructure. The structure of PostNord is shown in Figure 1 below.

Figure 1

The structure of PostNord

Source: Danish authorities

(21) PostNord is active on the Danish, Swedish, Norwegian and Finnish markets of postal services and provides courier, cargo and logistics services in the Nordic region and in the rest of Europe.

3.1.2. Post Danmark

(22) Since 2011, the Danish postal service market has been liberalised in accordance with Directive 2008/6/EC ⁽¹⁷⁾ . Post Danmark operates in full competition with other postal service providers, including on the parcel market and the market for the distribution of newspapers and magazine mail.

(23) Post Danmark is active on the Danish postal markets, where it offers a variety of postal services such as the delivery of letters and parcels, and it ensures the operation of a nationwide network of postal service points.

(24) Post Danmark was entrusted with the USO on the territory of Denmark, as provided in the Danish Postal Act (hereafter "Postal Act") until end of 2023 ⁽¹⁸⁾ .

(25) In order to reduce the net costs of Post Danmark for the provision of the USO and hence the amount of the compensation for the provision of these services, there were several attempts to reduce service levels over the years, to increase prices and to establish an alternative market-based compensation mechanism.

(26) General digitalisation trends and the specific circumstances in Denmark ⁽¹⁹⁾ have led to a rapid decline in the number of letters handled by Post Danmark. The letter volume handled by Post Danmark has indeed declined drastically since the early 2000s at a higher rate than in other comparable countries. In Denmark, the letter volume fell by approximately 85 % in the period 2006-2022. The development in letter volumes handled by Post Danmark compared to other European postal service operators is illustrated in Figure 2.

Figure 2

Development in letter volumes handled by postal service operators

(27) That accelerated digitalisation has led to a significant fall in revenues. In the 2009-2020 period, Post Danmark's revenue decreased by approximately 50 %, in large part due to lower revenues from the letter market, and from 2012 onwards the company generated annual deficits. As a consequence, there was a decrease in Post Danmark's equity, which by the end of 2016 amounted to DKK 108 million (approximately EUR 14.5 million). Until the end of 2016, the company had not received any additional equity funding from PostNord.

(28) Post Danmark has taken action to address the impact of that 'e-substitution'. Between the merger in 2009 and the end of 2016, approximately 8 000 full-time equivalent employees (FTEs) left Post Danmark through various extraordinary measures. However, those measures were ultimately insufficient and, to prevent equity in Post Danmark from turning negative, the company received the 2017 capital injection, following a decision of the Board of Directors of PostNord AB. Furthermore, in order to make Post Danmark economically viable again, the Board of Directors of PostNord AB developed a new production model that aimed at increasing efficiency in the following ways:

a) the delivery of quick letters and other day-to-day mail items was to be based on the logistics delivery network (that is, delivered together with parcels) to save costs by avoiding parallel distribution networks;

b) postal items were to be distributed directly from a hub or postal service outlet without the need for separate facilities except letter sorting centres;

c) ordinary letters and magazine mail were to be delivered in a so-called flower model, replacing the previous distribution method and entailing a significant reduction in the number of daily routes.

(29) In October 2017, the Danish and Swedish authorities agreed that the new production model was necessary for Post Danmark to be economically viable.

3.2. The alleged aid measure under assessment

3.2.1. ITD's complaint on the 2017 capital injection

(30) ITD alleged in its complaint that on 23 February 2017 PostNord injected DKK 1 billion into Post Danmark in order to provide the company with sufficient liquidity to implement business adjustments and ensure profitable operations. ITD further stated that the 2017 capital injection forms an integral part of the measures foreseen in the Agreement. For that reason, according to ITD, the 2017 capital injection is ultimately financed by the national budgets of Denmark and Sweden and therefore involves State resources. Moreover, because PostNord AB is wholly owned by the Swedish and Danish States and governed by a Board of Directors whose members are jointly nominated by its owners, ITD considered the measure to be imputable to the Danish and Swedish States. ITD considered that no private market investor would have invested in Post Danmark, whose equity was allegedly close to zero, and that the measure was therefore not enacted in line with the market economy operator principle. According to ITD, the measure therefore confers an advantage on Post Danmark and since the other criteria are also fulfilled, the measure thus constitutes State aid.

3.2.2. The 2018 Decision

(31) In the 2018 Decision, the Commission concluded that the 2017 capital injection was not imputable to the Danish State or the Swedish State. Although the 2017 capital injection granted into Post Danmark was decided by the Board of Directors of PostNord AB, and although the ownership structure and way of appointing the Board of Directors show that Sweden and Denmark might be in a position to control and have a dominant influence over PostNord AB, the Commission considered that they do not show that Sweden and Denmark had actual control when the 2017 capital injection took place, nor that the public authorities were involved, in one way or another, in the decision concerning the capital injection.

(32) Moreover, the Commission concluded that the 2017 capital injection did not confer an advantage upon Post Danmark as it was carried out in line with normal market conditions. Indeed, the Commission considered that a private investor in PostNord AB's circumstances would have most likely made a similar capital injection instead of letting its subsidiary go bankrupt, for the following reasons:

(i) based on the available information, there was little doubt that Post Danmark would have gone bankrupt absent the intervention of PostNord group. At the time of the 2017 capital injection, Post Danmark's equity had gone down to DKK 108 million from DKK 1,29 billion at the end of 2015, with a further forecasted loss for 2017 of DKK 660 million.

(ii) as the Danish and Swedish authorities had explained, not making the investment and accepting the bankruptcy of Post Danmark would have had a much higher cost for the PostNord group than carrying the injection (see recitals (200-203) of the 2018 Decision).

3.2.3. The assessment of the 2017 capital injection in the judgment in case T-561/18

(33) As regards the imputability of the 2017 capital injection, the General Court found that "the Commission must establish, on the basis of a set of sufficiently precise and convergent indicators, that the involvement of the State in the decision made by that undertaking was specific or that the absence of such involvement was unlikely having regard to the circumstances and the context of the case". The General Court concluded that the applicants were correct in claiming that the Commission did not conduct a complete and sufficient examination of whether the 2017 capital injection was imputable to the Danish and Swedish States. The General Court found that "by merely stating that PostNord was a public undertaking, the Commission carried out an insufficient analysis of the State's involvement in the adoption of the contested act". In the General Court's view, that approach amounts, in effect, to excluding the imputability to the States of the 2017 capital injection on the sole ground that PostNord AB was incorporated as a commercial company, in breach of the principle established by the Stardust Marine case-law ⁽²⁰⁾ . Furthermore, the General Court found that it was apparent from two presentations by the Danish Ministry of Transport dated 9 and 22 February 2017 that, contrary to what the Commission maintained in the 2018 Decision, the Danish Government was aware of the scale of the financial difficulties faced by Post Danmark in 2016 as well as those forecasted for 2017, of the undertaking's risk of bankruptcy, and of the cost of such bankruptcy for the State. Consequently, the Danish State's knowledge of those factors also justified the need for the Commission to carry out a more detailed examination of the imputability of the 2017 capital injection ⁽²¹⁾ . Finally, the General Court found that the Commission confined itself to forwarding ITD's complaint to the Danish and Swedish authorities and that it merely accepted their reply of 20 December 2017 stating that they had not become aware of the capital increase of 23 February 2017 until after it had been completed, in their capacity as shareholders. However, the principle of sincere cooperation as interpreted by the Court of Justice did not allow the Commission to rely predominantly at the stage of the preliminary examination stage on statements made by the Danish and Swedish states in order to conclude that the 2017 capital injection was not imputable to those States ⁽²²⁾ .

(34) Furthermore, the General Court found that the Commission did not carry out a complete and sufficient examination when it established that the 2017 capital injection was consistent with the conduct of a rational private investor (i.e., that it was preferable to any of the alternative measures, such as the bankruptcy of Post Danmark). According to the General Court, "the Commission must carry out a meticulous examination, on the basis of reliable evidence available to it, of the advantages and disadvantages, first, of the option of filing for the bankruptcy of the subsidiary and, secondly, of the option of making a public investment in order to ensure the survival of the undertaking, examining, in particular, in the latter case, the prospects of profitability for the public investor". In the General Court's view, the approach adopted by the Commission in the 2018 Decision was analogous to accepting that any capital contribution made by a publicly owned company to its subsidiary faced with a sudden risk of bankruptcy satisfies, in principle, the private investor in a market economy test. Even though the Commission found that the cost of the 2017 capital injection was lower for PostNord than the cost of Post Danmark's bankruptcy, the General Court considered that the Commission in fact relied exclusively on the negative consequences of the bankruptcy of Post Danmark, without excluding the possibility that such bankruptcy could, in spite of everything, be more advantageous than a capital increase which, for example, offered no prospects of profitability, even in the long term. Further, the General Court found that the Commission did not take account of the urgency in relation to Post Danmark's risk of bankruptcy, but even if it could be inferred that it relied on that situation, it was not established that the urgency arose following the publication, on 10 February 2017, of PostNord's year-end report ⁽²³⁾ . Therefore, it considered that Post Danmark's risk of bankruptcy was simply the consequence of the financial difficulties that Post Danmark had been experiencing for a long time as a result of declining mail volumes owing to the generalised use of electronic communications. In any event, the fact that PostNord was faced with an urgent situation did not exempt the Commission from examining whether the 2017 capital injection could, even in the long term, constitute a profitable operation. Finally, even if it were to be considered that the 2017 capital injection was a necessary prerequisite for Post Danmark's restructuring, the General Court observed that it is not apparent that the Commission assessed, even summarily, the plausibility of the assertion that Post Danmark's new production model would make it possible to restore Post Danmark's economic efficiency. ⁽²⁴⁾

3.2.4. ITD's position on the 2017 capital injection following the judgment in case T-561/18

(35) ITD reiterates that the 2017 capital injection constitutes State aid in favour of Post Danmark. ITD provides further information on why it considers that the 2017 capital injection is imputable to the Danish and Swedish States and confers an advantage upon Post Danmark.

3.2.4.1. Imputability and State resources

(36) Regarding imputability, ITD recalls the judgment in case T-561/18 and observes that it is not necessary to show that the public authorities instructed or incited the public undertaking (PostNord AB) to take the measure. Instead, the fact that the public authorities instructed or incited the public undertaking to adopt the aid measure may be inferred from a set of indicators arising from the circumstances of the case ⁽²⁵⁾ .

(37) In particular, ITD provides several indicators allegedly showing that the 2017 capital injection is imputable to the Danish and Swedish States:

(i) A press release dated 15 February 2017 (i.e., 8 days before the 2017 capital injection took place), where, on the subject of "PostNord in dialogue with its owners", it is stated that "[...] Jens Moberg said to DR Nyheder [a Danish TV channel]: - When we carry out such a comprehensive change we are in close dialogue with our owners also about how we finance a change. - So a capital injection may be relevant? - We cannot say now how the financing will happen. But we are in close dialogue with our owners about how to carry out this financing" ⁽²⁶⁾ .

(ii) A newspaper article dated 28 September 2017 in the Swedish newspaper Dagens Nyheter stating that Denmark's and Sweden's Shareholder Agreement explicitly provides that the two owners must act in coordination, and if they do not, they can sue each other ⁽²⁷⁾ .

(iii) A newspaper article dated 20 October 2017 concerning the subsequent capital injections in PostNord/Post Danmark foreseen in the Agreement from October 2017, which refers to coordination between the States ⁽²⁸⁾ .

(iv) In the same way, a previous press release states that "according to a source which [the newspaper] Dagens Nyheter invokes [...] it is difficult to make any big changes without that everybody [i.e., both parties] agrees. When the transaction [for establishing PostNord AB between Sweden and Denmark] was completed [in 2009] the Swedish State received 1,4 SEK for letting go of its influence".

(v) the General Court held that the Commission should have considered that the characteristics associated with being a public undertaking (as PostNord AB) such as "the existence of control and the real possibilities of exercising a dominant influence" are already indicators that the measure is imputable to the States ⁽²⁹⁾ .

(vi) the General Court found that the Danish State's own presentations of 9 and 22 February 2017 showed that the Danish State was aware of Post Danmark's financial difficulties in 2016 - which were precisely the financial difficulties that the 2017 capital injection was designed to address ⁽³⁰⁾ .

(vii) the Commission found in 2019 that the capital injection of DKK 2.34 billion from PostNord AB into Post Danmark was imputable to the Danish and Swedish States ⁽³¹⁾ .

(38) Furthermore, in light of the judgment in case T-525/20 ⁽³²⁾ (that concerns a capital injection from PostNord AB into PostNord Logistics - Post Danmark's sister company), ITD submits that:

(i) in the present case, the Board members of PostNord AB were equally involved in the decision as regards the 2017 capital injection ⁽³³⁾ ;

(ii) the General Court found that "Although the Kingdom of Denmark, like PostNord Group and PostNord Logistics, acknowledges that the Danish and Swedish States were involved in that restructuring [of the Danish business], those interveners maintain that the said restructuring concerned only the change of model within Post Danmark, decided upon in 2017 and financed in 2018, and that it therefore had no connection with the capital injection in favour of PostNord Logistics" ⁽³⁴⁾ ; and

(iii) in the present case, the Board of PostNord AB (parent company of PostNord Group AB), is also taking the decision as regards the 2017 capital injection ⁽³⁵⁾ .

(39) Finally, ITD submits that PostNord AB is 100 % owned by the States and therefore the financial support that PostNord AB gives to Post Danmark implies the use of State resources. The same conclusion was already reached by the Commission in recitals (66)-(68) of the Decision in the PostNord Logistics case ⁽³⁶⁾ .

3.2.4.2. Advantage

(40) Regarding the economic advantage, ITD recalls the judgment in case T-561/18. ITD further explains that the 2017 capital injection confers an economic advantage upon Post Danmark because:

(i) the liquidation of Post Danmark would have been much cheaper for PostNord than the 2017 capital injection. This is because, according to ITD, the costs which were listed by Post Danmark in the Board memo (referred to in paragraph 363 of the judgment in case T-561/18) are not eligible liquidation costs and may thus not be included in the liquidation costs of Post Danmark ⁽³⁷⁾ . In ITD's view, these costs are all either directly or indirectly related to the damage that the liquidation would cause to the PostNord group's corporate reputation and image. Indeed, ITD argues that according to consistent case law, taking into account the brand image of the holding company is exceptional and requires that there is evidence of a well-established practice to do so, amongst 'reference private investors' ⁽³⁸⁾ .

(ii) There was no urgency justifying the grant of the 2017 capital injection and even if there would be urgency, the General Court in the judgment in case T-561/18 has held that urgency does not exempt the Commission from having to examine whether the 2017 capital injection would be profitable in the long term ⁽³⁹⁾ .

(iii) The 2017 capital injection was not granted based on an ex ante assessment carried out by the investors and its purpose was not to restructure Post Danmark. According to ITD, recital (80) of the 2018 Decision clearly states that the investors, (i.e., Denmark and Sweden) did not carry out an assessment of whether the 2017 capital injection would be profitable prior to injecting the money. Instead, the Commission merely relied on a Board memo which only considered the adverse effects of Post Danmark's bankruptcy (namely the costs listed in paragraph 363 of the judgment in case T-561/18). This is also confirmed by the fact that it is settled case law that the lack of an ex ante assessment of a capital injection cannot subsequently be repaired through an ex post evaluation ⁽⁴⁰⁾ .

(41) Moreover, ITD submits that the argument of the Danish State that the 2017 capital injection was justified because of the imminent bankruptcy of Post Danmark, could not justify that the 2017 capital injection does not constitute State aid. Indeed, precisely because the Rescue and Restructuring Guidelines ("R&R Guidelines") ⁽⁴¹⁾ authorise restructuring aid, the restructuring of an undertaking cannot be the reason for finding that there is no aid. If anything, the 2017 capital injection may be aid that is compatible on the basis of the R&R Guidelines. However, according to ITD, it is undisputed that, at the time of the 2017 capital injection, Post Danmark was about to go bankrupt. Therefore, ITD submits that if the intention of the States was to grant aid in order to restructure Post Danmark, it should have introduced a restructuring plan to make the company profitable again. Since that did not happen, ITD considers that the 2017 capital injection cannot be authorised on the basis of the R&R Guidelines. In any event, according to ITD, the 2017 capital injection does not fulfil other conditions for being considered as rescue or restructuring aid to an undertaking in difficulties under the R&R Guidelines.

3.2.5. The position of the Danish and Swedish States following the judgment in case T-561/18

3.2.5.1. Imputability and State resources

(42) The Danish and Swedish authorities have provided the Commission with further arguments to support a conclusion that the 2017 capital injection was not imputable to the State in light of the indicators recalled by the General Court in the judgments in case T-561/18 and in case T-525/20.

(43) As regards Post Danmark, the Danish and Swedish authorities submit that that entity is not integrated in the structures of the public administration and the nature of its commercial activities does not point at imputability. It is subject to Danish company law and carries out its activities under normal market conditions ⁽⁴²⁾ and in competition with other companies (like DAO/Bladkompaniet, GLS, Bring or DHL). As an independent legal entity within the PostNord group, Post Danmark's management is ensured by its own management and Board of Directors and the ownership interest is ensured by the Board of Directors of PostNord Group AB without the Danish or Swedish State having direct control over Post Danmark's administration.

(44) The Swedish authorities submit that neither PostNord AB or PostNord Group AB nor any other of the companies within the PostNord group are integrated in the structures of the public administration, and that the nature of their commercial activities does not entail imputability. PostNord AB and PostNord Group AB are subject to Swedish company law and carry out their activities under normal market conditions and in competition with other companies. As independent legal entities within the PostNord group, the subsidiaries' management is ensured by their own management and Board of Directors and the ownership interest is ensured by the Board of Directors of PostNord Group AB without the Danish or Swedish State having direct control over the companies' administration.

(45) In a joint submission dated 6 March 2024, the Danish and Swedish authorities described the corporate governance of PostNord AB. In accordance with that information, PostNord AB is a Swedish limited liability company and, like privately owned companies, is subject to the Swedish Companies Act ⁽⁴³⁾ as the overall framework, with the general meeting of shareholders as the company's highest decision-making body. The Swedish State-owned companies, like privately owned companies in Sweden, are therefore independent legal entities and the Government is not entitled to instruct a State-owned company, or its Board of Directors, to act in a certain way other than through the general meeting. The Danish State is represented at the general shareholder's meeting by the Minister of Transport or his deputy, whereas the Swedish State is represented by power of attorney issued by decision of the Ministry of Finance ⁽⁴⁴⁾ .

(46) The Danish authorities submit that, in relation to PostNord AB, it is the Danish Minister of Transport, who is responsible for nominating candidates to serve as four out of the eight board members in PostNord AB. In practice, the Minister's proposals for board members in PostNord AB are discussed internally within the Danish government ("Regeringens ansættelsesudvalg"), before a proposal for nomination is made. When a nomination has been made on either re-elections or new elections of the four board members in PostNord AB, then the Swedish co-owner will be contacted to see if they have any comments in that regard. The decision to appoint board members in PostNord AB is made by the general meeting of shareholders of PostNord AB. The Danish State has 50 % of the votes and the Swedish State has 50 % of the votes. In this context, there normally is a mutual understanding between the two State owners regarding all nominations of the board members in PostNord AB. The Danish and Swedish authorities further submit that the eight Board members in PostNord AB appointed by the general meeting are all considered as independent board members and that there are no "government appointed" Board members on the Board. On the contrary, all board members are appointed in accordance with the Swedish Companies Act ⁽⁴⁵⁾ , which applies to both private companies and State-owned companies. According to the Swedish State's Ownership Policy ⁽⁴⁶⁾ , the nominees are selected from a broad recruitment base in order to utilise the expertise of women and men, as well as individuals of various backgrounds and experiences, including the ones employed with the Government Offices ⁽⁴⁷⁾ . Also, the directors nominated by the Danish State are fully subject to the rules laid down in the Swedish Company Act because PostNord AB is subject to Swedish law. The Board nomination process of State-owned companies, including PostNord AB was (at the time) coordinated by the Swedish Ministry of Enterprise and Innovation at the Government Offices and a dialogue/contact was also established with the Danish State (represented by the Danish Ministry of Transport Government Office officials) ⁽⁴⁸⁾ . In addition to the 8 board members in PostNord AB, there are also 3 employee representatives and 3 employee representative deputies. Table 1 below describes the composition of PostNord AB's Board of Directors as of February 2017:

Table 1

PostNord AB's Board of directors composition as of February 2017

Name	Nominated by	Appointed by	Formal status
Jens Moberg	The Danish state	The general meeting of PostNord AB (Danish and Swedish states represented as shareholders)	Independent chair of the board
Torben Janholt	The Danish state	The general meeting of PostNord AB (Danish and Swedish states represented as shareholders)	Independent board member
Christian Ellegaard	The Danish state	The general meeting of PostNord AB (Danish and Swedish states represented as shareholders)	Independent board member
Mette Grunnet (Left the Board on February 14, 2017, cf. annual report 2016 of PostNord AB)	The Danish state	The general meeting of PostNord AB (Danish and Swedish states represented as shareholders)	Independent board member
Mats Abrahamsson	The Swedish state	The general meeting of PostNord AB (Danish and Swedish states represented as shareholders)	Independent board member
Gunnel Duveblad	The Swedish state	The general meeting of PostNord AB (Danish and Swedish states represented as shareholders)	Independent board member
Magnus Skåninger	The Swedish state	The general meeting of PostNord AB (Danish and Swedish states represented as shareholders)	Independent board member
Anitra Steen	The Swedish state	The general meeting of PostNord AB (Danish and Swedish states represented as shareholders)	Independent board member
Kristofer Björklund	-	Union representative appointed by the Union of Civil Servants (ST)	Employee representative
Lars Chemnitz	-	Union representative appointed by the Union of Service and Communication Employees (SEKO).	Employee representative
Johan Lindholm	-	Union representative appointed by the Union of Service and Communication Employees (Seko)	Employee representative
Peter Madsen	-	Union representative appointed by the Union of Service and Communication Employees (SEKO).	Employee representative, deputy
Ulf Sjödin	-	Union representative appointed by the Union of Civil Servants (ST).	Employee representative, deputy
Sandra Svensk	-	Union representative appointed by the Union of Service and Communication Employees (SEKO)	Employee representative, deputy
Source: the Danish authorities

(47) The Swedish authorities added that out of the above 11 Post Nord AB's board members, the Swedish Government Offices nominated Jens Moberg (chairman), Mats Abrahamsson, Gunnel Duveblad, Magnus Skåninger and Anitra Steen, and that Magnus Skåninger was at the time investment director and head of the Division for State-Owned Enterprises at the Swedish Ministry of Enterprise and Innovation. Thus, 1 out of 11 PostNord AB's Board members was a Swedish civil servant. In any event, any civil servants on the board in Swedish State-owned companies have the same mandate, responsibility and tasks as the other board members and shall pursue the best interest of the company. None of PostNord AB's board members have any mandate whatsoever, by instruction or otherwise, to act on behalf of or as a "tool" of the State on the Board. In turn, the Danish authorities submitted that none of the board members nominated by them was a Danish civil servant at the time of the 2017 capital injection (see recital (56)).

(48) Furthermore, it follows from the Danish State's ownership policy from April 2015 ⁽⁴⁹⁾ , submitted by the Danish authorities, that the board and management of companies under State ownership are responsible for running the company on behalf of the owners. This document outlines the framework, expectations, and recommendations on how the Danish State would exercise its ownership in State-owned companies, whether wholly or majority-owned. It aims to ensure a structured and consistent approach across all ministries and to support value creation and good corporate governance in State-owned companies. Some of these recommendations, which are not compulsory, are the following:

(i) The State exercises its influence through the election of external board members, establishing an "arm's length" relation between the State as owner and the company's board ⁽⁵⁰⁾ , whereby the company is run on its own terms and based on what serves the company best ⁽⁵¹⁾ . However, there are no specific written rules on how the Danish Board members should act at Board meetings, apart from the general guidelines on the arm's length relation for the Danish Board members. There are no obligations for the Danish Board members to brief the Danish owner before, during or after the Board meetings. The owner also does not get insight on a regular basis into what has been discussed at the Board meetings, unless of course the Board decides to bring a matter to the attention for the Minister.

(ii) The State, like any other active owner, must consider the company's overall strategic framework. Within this overall strategic framework, it is the board's responsibility to take care of the overall and strategic management of the company ⁽⁵²⁾ .

(iii) Board of directors, in consultation with the relevant "owner" minister, must set concrete financial goals, such as expected returns comparable to those of private investors ⁽⁵³⁾ .

(iv) The Board's composition and qualifications are reviewed regularly, at least annually, between the minister and the chairman of the Board ⁽⁵⁴⁾ .

(49) The Swedish State exercises its ownership in State-owned companies in accordance with the Swedish Companies Act, supplemented by the Swedish Ownership policy ⁽⁵⁵⁾ , which sets out the Government's mandates and objectives, applicable frameworks and important issues of principle regarding the corporate governance of State-owned enterprises. In particular, with reference to the Swedish Ownership Policy, the Swedish authorities submit that:

(i) Similar to privately owned companies, State-owned enterprises are governed by the Swedish Companies Act as the general framework and by the general meeting of shareholders as the highest governing body of the company. The Government is therefore, in accordance with the Swedish corporate governance model and by corporate law, as reiterated in the Swedish's State Ownership Policy, not entitled to instruct the companies to act in a certain way other than through the general meeting of shareholders.

(ii) Board members of State-owned companies, like those in private companies, are legally required under the Swedish Companies Act to act independently and in the best interests of the company, bearing personal responsibility and potential liability for their actions ⁽⁵⁶⁾ . This duty applies equally to any civil servants serving on the Board (which have the same mandate, responsibility and tasks as other Board directors ^{(57) ) (58)} . No written or informal behaviour expectations are conveyed by the State to the members of the Board on how to act in their respective capacities as Board members. This would clearly contravene the Swedish corporate governance model and policy on separation of functions of each governance body under the Swedish Companies Act.

(iii) Under the State's Ownership Policy, the work within the Government offices is allocated so that the responsibility for sector-specific legislation typically resides with divisions other than those involved in the management of State-owned enterprises. This maintains the separation of the roles of the State as owner and regulator.

(iv) With respect to section 3.2 of the Swedish State's Ownership Policy, it follows that in certain specific cases "owner instructions" are decided upon by the general meeting of shareholders of the State-owned company in question ⁽⁵⁹⁾ . However, no owner instructions have been decided upon for PostNord AB. In this respect it may be noted that a decision by the general meeting of shareholders is a prerequisite for such instructions to be binding upon the Board.

(v) Section 4.3.4 of the Swedish Ownership Policy provides for a so called "coordination responsibility" which entails that "whenever the company is faced with particularly important decisions, the board of directors should, through the chairman, coordinate in writing its view with that of the representatives of the owner." This is the only case in the governance model for Swedish State-owned enterprises where the owner is entitled to express its view on operational matters, and it is incumbent upon the board to decide the cases in which such coordination via the chairman should occur prior to a particular board decision. With respect to the 2017 capital injection, no such coordination took place with the Swedish owner since it did not fall within the "coordination responsibility". Further, it may be noted that this coordination responsibility has historically been applied in a very limited number of cases in relation to all the Swedish state-owned enterprises ⁽⁶⁰⁾ .

(50) As regards the 2017 capital injection specifically, the Danish authorities submit that during 2009-2016 the revenue for Post Danmark decreased by 38%, mainly due to lower mail revenues. Due to this and difficulties to adjust the cost base to lower volumes, Post Danmark was loss making from 2012. Consequently, a transformation plan of Post Danmark was drawn up with close involvement of the Board of Directors of PostNord AB in the fall/winter of 2016 with the objective of turning Post Danmark's Danish letter business economically viable again. The transformation plan involved a range of different initiatives, including a completely new production model and the reorganisation of the administration (namely reductions in overhead costs, IT costs and real estate costs). The new production model was presented to the Board of Directors of PostNord AB on a Board meeting on 27 October 2016 and the wider transformation plan and its funding was presented and discussed on Board meetings ⁽⁶¹⁾ . The transformation plan was also presented to the two owner States in the fall of 2016 and discussions between PostNord and the States on how to finance the plan were initiated. The transformation plan was developed in two parallel tracks: an internal track within the PostNord group and an external track where it was presented to both owners (the Danish and Swedish States) and discussed in particular with the Danish Ministry of Transport. Information on the 2017 capital injection was not included in the transformation plan shared by PostNord to the owners.

(51) In the course of developing the transformation plan, Post Danmark's assets were written down significantly, which, combined with an operating loss of almost DKK [...] (*) million (approximately EUR [...] million) ⁽⁶²⁾ led to a sudden drop in its equity from DKK 1.29 billion (approximately EUR 172 million) at the end of 2015 to DKK 108 million (approximately EUR 14 million) at the end of 2016. Its solvency ratio also dropped from 30 % to 3 %, leading Post Danmark to face serious financial issues in early 2017.

(52) Against this background, the Board of Directors of PostNord AB decided on 23 February 2017 to "redistribute" capital of DKK 1 billion to Post Danmark (approximately EUR 134 million) ⁽⁶³⁾ , of which the Danish Ministry of Transport was only informed on 9 March 2017, weeks after the decision was taken ⁽⁶⁴⁾ , given that "from PostNord's point of view, the capital injection ... was a group internal redistribution of capital within the PostNord group which did not need the immediate attention of the two owner States" ⁽⁶⁵⁾ . In this regard, the presentations of the Danish Ministry of Transport of February 2017 would have only referred to long-term solutions, and no presentation in the external track with the State authorities mentioned solutions for the sudden serious financial situation. To support this affirmation, the Danish authorities have submitted relevant extracts from the relevant Board meetings and the presentations given during these meetings ⁽⁶⁶⁾ . According to the Danish authorities, the Danish State was not informed by PostNord AB about the redistribution of capital before the quarterly meeting with the Danish Minister of Transport on 9 March 2017 ⁽⁶⁷⁾ .

(53) The Swedish authorities, in the same vein, submit that the Swedish State was not informed about the 2017 capital injection beforehand, was not involved in the transfer and PostNord AB only informed the States in their capacity as owners subsequently. Directors nominated by the States are not subject to any special voting rules and had no right of veto in the case at hand. Certain exceptions in the Shareholders' Agreement in relation to voting rights were not applicable at the time the decision at issue was adopted. Under Article 3.9.1 of the Shareholders' Agreement, a simple majority was required for a decision such as the one at issue on the 2017 capital injection. Any influence over the decision-making on PostNord AB's Board could therefore have taken place only by coordinated joint action by the Danish and Swedish States, by means of an amendment of the Shareholders' Agreement or a general meeting decision. However, there has been no such joint action. Nor has there been any coordination between PostNord AB's Board and the Swedish State as owner prior to or in connection with the decision in question nor have the Board members nominated by the Swedish State been subject to any instructions from the State regarding the capital injection at issue.

(54) According to the States, there are no specific reporting obligations of the Board to the State owners. In the Danish and Swedish's view, both owners are regularly informed about the company's performance at formal regular meetings, so called "owner's dialogues" as well as quarterly ownership meetings regarding, amongst others, the company's quarterly accounts, in which the company's management and chairman of the Board also participate ⁽⁶⁸⁾ . "Owner's dialogues" meetings were only introduced subsequent to PostNord AB Board's decision on the 2017 capital injection and after the agreement of 20 October 2017 between the Danish State and the Swedish State ("October Agreement") ⁽⁶⁹⁾ . This institutionalized "owner's dialogue" serves to track and follow-up any public policy targets and financial targets of the company (such targets are decided upon by the general shareholder's meeting and in case of PostNord AB only consist of financial targets). A matter can also be brought to the attention of the Swedish Ministry of Enterprise and Innovation (Department of ownership of State-owned enterprises) by the chairman of the Board on an ad-hoc basis in order to inform on important issues that are deemed vital and natural for an owner to be aware of. There were no such ad-hoc information provided by the chairman of the Board concerning the sudden drop in Post Danmark's equity prior to PostNord AB Board's decision on the 2017 capital injection.

(55) According to the Danish and Swedish authorities, the 2017 capital injection was considered not to trigger the obligation on PostNord AB to consult its owners under Article 4.3 of the Rules of Procedure of the Board of PostNord AB ⁽⁷⁰⁾ ("Rules of Procedure"). According to this provision, the Board of Directors of PostNord AB shall "[...]" It is the Board that shall assess in which cases a strategic review should take place and shall initiate the so called "coordination responsibility".

(56) The Danish and Swedish authorities argue that, although a Swedish State-nominated civil servant was a member of PostNord AB's Board at the time of the 2017 capital injection, this does not alter the fact that any interaction between the Board and the Swedish State adhered to the arm's length principle. Furthermore, the Danish authorities point out that, prior to the 2017 capital injection, Denmark had not appointed a civil servant into PostNord AB's Board ⁽⁷¹⁾ . They emphasize that imputability to the States must be assessed when the decision to provide the capital injection was taken, specifically on 23 February 2017.

3.2.5.2. Advantage

(57) The Danish authorities have also put forward additional arguments to support the view that the capital injection satisfied the market investor principle. The Danish authorities submit that, when deciding on the 2017 capital injection, the Board of Directors of PostNord weighed the likelihood of obtaining the advantage of a successful implementation of the transformation plan and returning Post Danmark to profitability against the risk of incurring losses as a result of bankruptcy of Post Danmark. In that regard, the Danish authorities refer to numerous adverse effects of the potential bankruptcy of Post Danmark for PostNord: (i) a loss of trust in the PostNord group by credit and capital markets, customers and suppliers, (ii) potential termination of existing financing agreements of the group, (iii) jeopardization of the PostNord group's position and name in the Nordic logistics markets, (iv) deterioration of conditions under which PostNord could rent property and obtain supplies and guarantees, (v) additional adverse financial effects including a write down in book value of DKK [50-100] million (approximately EUR [5-15] million), a risk of non-repayment and write down of approximately DKK [500-1.000] million (approximately EUR [65-135] million) in loans from the group's cash pool to Post Danmark, repayment of property credits of DKK [100-500] million (approximately EUR [15-70] million) to avoid triggering cross-default for the group's other loans, a possible discharge of parent company guarantees of DKK [100-500] million (approximately EUR [15-70] million) for properties and completion of duties and tax of DKK [5-10] million (approximately EUR [1-2] million), as well as a risk of recovery of the dividends from July 2015 worth DKK [500-1.000] million (approximately EUR [65-135] million) to the bankruptcy estate and/or potential damage claims for insufficiently supervising the financial resources of Post Danmark ⁽⁷²⁾ .

(58) The Danish authorities further submit that the capital injection was based on a transformation plan that would return Post Danmark to profitability; that there was an assessment showing the capital injection to be the most advantageous option for PostNord ⁽⁷³⁾ ; that the need for capital was urgent and necessary to allow for the adoption and implementation of the transformation plan; that the capital injection reduced PostNord's risk exposure to a possible bankruptcy of Post Danmark; and that the capital injection accounted for less than 3.5 % of the group's revenues in 2017, while Post Danmark's revenues accounted for a quarter of the group's revenues. In addition, the Danish authorities submit that the Board of PostNord AB had extensive insights into the economic assessment of transforming Post Danmark and turning it profitable again, and that the successful transformation was sufficiently probable on 23 February 2017 ⁽⁷⁴⁾ . This probability is also reflected in the Government's presentation to the political spokespersons of 9 February 2017 ⁽⁷⁵⁾ , according to which Nordea Advisory's preliminary conclusions indicated that a transformation was necessary. Finally, in the Danish authorities' view, due to the preexisting exposure of PostNord AB and PostNord Group AB to a bankruptcy of Post Danmark, the capital injection (including the netting out of the group internal loan of DKK [500-1.000] million) did not increase PostNord AB's and PostNord Group AB's risk exposure but only reduced it by removing the risk of bankruptcy pending the implementation of the transformation plan.

(59) Moreover, according to the Danish authorities, although the Board of PostNord AB did not have a formal, final assessment of the probability of a successful transformation available at the date of the 2017 capital injection, when it decided on 23 February 2017 to redistribute capital of DKK 1 billion to Post Danmark, it regarded the future transformation plan for Post Danmark as highly probable and that it would return Post Danmark to profitability even though the arrangements for financing the transformation were not finalized at that stage. This is because:

(i) the Board of PostNord AB and Post Danmark were closely involved in the development of the transformation plan, and it had been discussed at several meetings both internally in the Board of PostNord AB and externally with the Danish owner. The Board of Directors of PostNord AB had therefore a solid insight into the transformation plan and the economic assessments of transforming Post Danmark and turning it profitable again.

(ii) Various economic analysis and assessments regarding the future profitability of Post Danmark were produced by PostNord AB. This formed the backdrop for the Board's decision to grant the 2017 capital injection on 23 February 2017. On 9 December 2016 a version of the transformation plan and its funding were presented and discussed on a Board meeting. This presentation illustrates the initial economic rationale of the transformation plan in 2016, which indicated that Post Danmark would turn profitable in [...] under the assumption of restructuring costs of DKK [...] billion.

4. ASSESSMENT

4.1. Existence of aid

(60) According to Article 107(1) TFEU, "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".

(61) A measure qualifies as State aid if the following cumulative conditions are met: (i) the measure is granted by Member States through State resources, (ii) it confers a selective economic advantage to certain undertakings or the production of certain goods, (iii) the advantage distorts or threatens to distort competition, and (iv) the measure affects intra-EU trade.

4.1.1. Economic activity and notion of undertaking

(62) The Danish and Swedish authorities acknowledge that Post Danmark carries out activities of an economic nature. Post Danmark offers postal services against remuneration on the Danish postal market and is in competition with other providers. Therefore, the provision of postal services on that market constitutes an economic activity. For those reasons, with regard to the activities financed by the capital injection, Post Danmark qualifies as an undertaking in the meaning of Article 107(1) TFEU.

4.1.2. Imputability and State resources

(63) To assess whether a measure granted through public undertakings is imputable to the State, it is necessary to determine whether the public authorities can be regarded as having been involved, in one way or another, in adopting the measure ⁽⁷⁶⁾ .

(64) State resources include all resources of the public sector ⁽⁷⁷⁾ , including resources of public undertakings ⁽⁷⁸⁾ . Indeed, according to the case-law, the resources of public undertakings fall within the control of the State and are therefore at its disposal when the State is perfectly capable, by exercising its dominant influence over such undertakings, of directing the use of their resources in order, as occasion arises, to finance specific advantages in favour of other undertakings ⁽⁷⁹⁾ . It is irrelevant whether an institution within the public sector is autonomous or not ⁽⁸⁰⁾ .

(65) In the judgment in case T-561/18, the General Court recalled a number of indicators of imputability to the State for the Commission to take into account. These indicators concern in particular ⁽⁸¹⁾ :

(i) whether the deciding entity could take the contested decision without "taking account of the requirements of the public authorities";

(ii) whether, apart from organic factors linking it to the State, it had to take account of directives of a government;

(iii) its integration into the structures of the public administration;

(iv) the nature of its activities;

(v) the exercise of its activities on the market in normal conditions of competition with private operators;

(vi) the legal status of the undertaking (i.e. subject to public law or ordinary company law);

(vii) the intensity of supervision exercised by public authorities over its management, and;

(viii) any indicator showing, in the particular case, any involvement by the public authorities in the adoption of the measure, or the unlikelihood of their not being involved, having regard also to its "compass" ("ampleur"), its content, or the conditions it contains.

(66) Based on the judgments in case T-561/18 and in case T-525/20, the Commission notes that since PostNord AB is a public undertaking and that relations between the State and public undertakings are close, it is not necessary to establish that the public authorities had, on the basis of a precise inquiry, specifically incited PostNord AB to take that measure to make a measure imputable to the State ⁽⁸²⁾ .

(67) Therefore, the Commission considers the following factors relevant as indicators of imputability of the 2017 capital injection to Danish and the Swedish States, and thus on which it requires further information during the formal investigation procedure:

(i) Organic links between PostNord AB and the Danish and Swedish State. The Commission observes that the appointment, within PostNord AB's Board of directors, of members simultaneously performing senior management duties in government ministries in Denmark and in Sweden, in areas of activity with a direct link to public undertakings - including PostNord AB - deserves further investigation. The appointment of a Swedish civil servant could allow inferences in the decision-making process of PostNord AB, since this civil servant enjoyed the confidence of Sweden and he was therefore likely to maintain informal contacts with agents of the ministries to which he belonged ⁽⁸³⁾ . For this reason, those organic links can point to imputability. In order to analyse these links, the Commission needs more information on what the circumstances surrounding the appointment of such Board member ⁽⁸⁴⁾ by the Swedish State, the functioning of the Board of Directors of PostNord AB, as well as the degree of dependence it was subject to coming from its respective appointing national authorities. Namely, it is not yet entirely clear whether the members of the Board of Directors of PostNord AB, and in particular the member of the Board that is a Swedish civil servant, in any way reported back to the national authorities on Board discussions.

(ii) Existence of a dialogue between the members of PostNord AB's Board of directors and the Danish and Swedish States. The Commission notes that the Danish Government was aware of the scale of the financial difficulties faced by Post Danmark in 2016 as well as those forecasted for 2017, of the undertaking's risk of bankruptcy, and of the cost of such bankruptcy for the State, because of the two presentations by the Danish Ministry of Transport dated 9 and 22 February 2017 made in a meeting with the PostNord Group AB ⁽⁸⁵⁾ . The Commission will need more information on the interplay between the "internal" and the "external" track of the transformation plan for Post Danmark - i.e., to what extent did the discussions on the external track potentially implicitly covered a capital injection into Post Danmark. Indeed, in that regard, the complainant in its latest submission of 6 March 2024 refers to a press release of 15 February 2017 - 8 days prior to the decision on the capital injection - in which the Chairman of the Board of PostNord AB stated that "we are in close dialogue with our owners also about how we finance a change". The Commission would need to examine whether a dialogue between PostNord AB's Board of directors and the Danish and Swedish States on the transformation of Post Danmark had taken place before 23 February 2017, in particular on the necessity to adopt the 2017 capital injection. The Swedish and Danish authorities referred to a "coordination responsibility" between the State owner and the board of directors of the State-owned company under Section 4.3.4 of the Swedish Ownership Policy (see recital (49)(v)) and to an the obligation on PostNord AB to consult its owners under Article 4.3 of the Rules of Procedure (see recital (55)). The Commission has doubts as to whether PostNord AB's board of directors decision to adopt the 2017 capital injection fell under, or should have been considered to fall under these provisions.

(iii) The nature of PostNord AB's activity. Since the 2017 capital injection had to be approved by the Board of directors of PostNord AB, a company whose corporate purpose is, primarily, to provide postal services in Denmark and Sweden and operate activities in accordance with those services, the decisions taken by its Board of directors were deemed to coincide with such a corporate purpose ⁽⁸⁶⁾ . Thus, the Commission needs to investigate to what extent the 2017 capital injection may have had an impact, positive or negative, on the fulfilment of the universal service obligations of Post Danmark.

(iv) The "compass" of the 2017 capital injection. Since the 2017 capital injection amounted to approximately EUR 143 million, this needs to be considered as a non-negligible factor in the assessment of imputability of that measure to the States, even more because that sum appears to be all the more important for the beneficiary of the capital injection, Post Danmark, whose economic viability was depending on it ⁽⁸⁷⁾ . In addition, such amount exceeded the threshold above which capital injections within the group had to obtain approval from PostNord AB, the parent company of that group, whose Board of directors had close links with the Danish and Swedish States ⁽⁸⁸⁾ . Indeed, since decisions on internal group capital injections exceeding SEK [...] million (approximately EUR [...] million) need to have the approval of the Board of Directors of PostNord AB, the amount of the 2017 capital injection exceeding the aforementioned threshold raises doubts as to the involvement of the Danish and Swedish States in the adoption of that measure.

(68) Against this background, the Commission retains doubts as to whether the 2017 capital injection is imputable to the Danish and Swedish States. Consequently, the Commission will have to establish specifically whether the information, supported by evidence, available in the present case may constitute sufficiently precise and convergent indicators of the specific involvement of the States in the decision made by PostNord AB to invest capital into Post Danmark or rather that the absence of such involvement was unlikely.

4.1.3. Advantage

(69) Economic transactions carried out by public bodies do not confer an advantage, and therefore do not constitute aid, if they are carried out in line with normal market conditions ⁽⁸⁹⁾ . To that effect, the behaviour of public bodies should be compared to that of similar private economic operators under normal market conditions. Whether a State intervention is in line with market conditions should be examined on an ex-ante basis, having regard to the information available at the time the intervention was decided upon. ⁽⁹⁰⁾

(70) The Commission notes that a meticulous examination, on the basis of reliable evidence available, of the advantages and disadvantages must be carried out: first, of the option of filing for the bankruptcy of Post Danmark and, secondly, of the option of making a public investment in order to ensure the survival of the undertaking, examining, in particular, in the latter case, the prospects of profitability for the public investor.

(71) The Danish authorities have submitted that the adoption of the transformation plan was sufficiently probable on 23 February 2017 given the ongoing discussions with the owner States on this matter and the analysis performed by Nordea on the economic situation in the PostNord group on behalf of Denmark. However, the Nordea presentation that the Danish authorities have provided date back from 20 March 2017, therefore was subsequent to PostNord AB's decision to grant the 2017 capital injection on 23 February 2017. A preliminary assessment by the Commission of the documents submitted by the Danish authorities shows that PostNord AB appears to have carried out estimates of the outcome of the implementation of the transformation plan, before the 2017 capital injection, which was aimed to return Post Danmark to profitability ⁽⁹¹⁾ . Moreover, PostNord also appeared to have assessed the risks associated with a bankruptcy scenario ⁽⁹²⁾ . While the two elements (i.e., the profitability following the transformation plan and the bankruptcy costs) are essential for the assessment of the market investor principle, the Commission has doubts on whether the anticipated profitability of the transformation plan and its likelihood were sufficient to justify the 2017 capital injection taking into account the anticipated consequences of a bankruptcy of Post Danmark.

(72) In particular, the Commission has doubts as to whether:

(i) PostNord AB's decision to proceed with the 2017 capital injection was determined by the fact that Post Danmark's new production model would make it possible to restore Post Danmark's economic efficiency,

(ii) Post Danmark's bankruptcy may have been a preferable alternative to the 2017 capital injection, and in particular whether the costs listed in the Board memo referred to in paragraph 363 of the judgment in case T_-561/18 would have actually been supported by PostNord AB in case of liquidation of Post Danmark ⁽⁹³⁾ . Specifically, in light of ITD's arguments outlined in recital (40)(i) and relevant case-law, it must be assessed whether these costs constitute complementary indemnities that a company might incur over the long term to safeguard the brand image of its corporate group. In this context, it should be demonstrated that such payments reflect a consistent and established practice among private investors in comparable situations (mere isolated examples are not sufficient to meet this standard) ⁽⁹⁴⁾ .

(73) As a conclusion, the Commission retains doubts as to the market conformity of the group capital injection into Post Danmark and whether that capital injection grants an advantage to that undertaking.

4.1.4. Selectivity

(74) The capital injection decided by PostNord AB is an individual measure targeting Post Danmark specifically. Given that the present case concerns an individual aid measure, the existence of an economic advantage is sufficient to support the presumption that the measure is selective ⁽⁹⁵⁾ . In any event, it appears that no other undertaking in the same factual and legal situation enjoys the same advantage in the same sector or enjoys such an advantage in other sectors. Hence, the notified measure is selective within the meaning of Article 107(1) TFEU.

4.1.5. Distortion of competition and effect on trade

(75) Post Danmark provides postal services in Denmark as well as abroad. The Danish postal services market has been liberalised as of 1 January 2011. According to the Danish authorities, in 2016, Post Danmark had a market share of approximately 97.6 % in the distribution of letters, 35 % in the distribution of business-to-business and business-to-consumer parcels, and 17 % in the distribution of newspapers and magazine mail.

(76) There are several undertakings that provide postal services in Denmark, many providing parcel services. These undertakings are in direct competition with Post Danmark, and several of them, such as UPS and GLS, are also active in other Member States.

(77) Accordingly, the Commission considers that, if it is determined that the 2017 capital injection is imputable to Denmark and Sweden and granted through state resources, while granting an advantage to Post Danmark, is liable to affect trade and distort competition.

4.1.6. Conclusion

(78) In light of recitals (60)-(77), the Commission preliminarily considers that the 2017 capital injection from PostNord in favour of Post Danmark is granted selectively to Post Danmark and that it is liable to distort competition and affect trade between Member States.

(79) In addition, the Commission retains doubts as to whether the 2017 capital injection may be imputable to the Danish and Swedish authorities, and confer an advantage upon Post Danmark. Therefore, the Commission retains doubts as to whether the 2017 capital injection may constitute State aid.

4.2. Compatibility

(80) To the extent that the measure assessed in the present decision imply the possible existence of State aid within the meaning of Article 107(1) TFEU, it is necessary to assess whether the measures can be considered compatible with the internal market.

(81) According to the case law of the Court, it is up to the Member State to invoke possible grounds of compatibility, and to demonstrate that the conditions for such compatibility are met ⁽⁹⁶⁾ . The Danish and Swedish authorities have however not invoked any arguments that would demonstrate the compatibility of the measure in question.

(82) In light of the above, to the extent that the measure assessed in the present decision would constitute State aid, the Commission has doubts that it would be compatible with the internal market.

5. CONCLUSION

In the light of the foregoing considerations, the Commission, acting under the procedure laid down in Article 108(2) of the TFEU, requests Denmark and Sweden to submit its comments and to provide all such information as may help to assess the measure, within one month of the date of receipt of this letter. It requests your authorities to forward a copy of this letter to the potential recipient of the aid immediately.

The Commission wishes to remind Denmark and Sweden that Article 108(3) of the TFEU has suspensory effect and would draw your attention to Article 16 of Council Regulation (EU) 2015/1589, which provides that all unlawful aid may be recovered from the recipient.

The Commission warns Denmark and Sweden that it will inform interested parties by publishing this letter and a meaningful summary of it in the Official Journal of the European Union. It will also inform interested parties in the EFTA countries which are signatories to the EEA Agreement, by publication of a notice in the EEA Supplement to the Official Journal of the European Union and will inform the EFTA Surveillance Authority by sending a copy of this letter. All such interested parties will be invited to submit their comments within one month of the date of such publication.

Yours faithfully,

For the Commission

Teresa RIBERA

Executive Vice-President

(*) Confidential information.

- the termination of existing financing agreements for the PostNord group, making it difficult for the group to refinance and raise capital;

- a deterioration in the conditions under which PostNord could rent property and suppliers are willing to supply, as well as a deterioration in the requirements for various forms of guarantees from PostNord;

- jeopardisation of PostNord's position and name on the Nordic logistics markets, where most of its customers operate in several countries;

- a negative cash flow effect within the PostNord group and an accounting loss".

(1) ¹⁾ The amount is fixed in SEK. Exchange rates: SEK 1 = EUR 0.09508, DKK 1 = EUR 0.13423, SEK 1 = DKK 0.70833, taken on 15 May 2018 from http://ec.europa.eu/budget/contracts_grants/info_contracts/inforeuro/index_en.cfm.

(2) ²⁾ Agreement concluded on 20 October 2017 between Sweden and Denmark regarding PostNord AB.

(3) ³⁾ A trade association with over 810 members, which are companies incorporated under Danish law active on the national and international markets for road transport of goods and logistics services. ITD's headquarters are in Padborg (Denmark), but it also operates offices in Copenhagen and Brussels.

(4) ⁴⁾ Mail-order companies sell products directly to customers through printed catalogues or flyers, with order placed by mail, phone or fax. Traditional mail-order has declined with the rise of digital platforms and is increasingly being replaced by e-commerce companies, which sell products or services online through websites or apps, with orders placed digitally.

(5) ⁵⁾ In other words, the Administrative Practice consists of a passing-on of a VAT exemption on the delivery of goods carried out by Post Danmark in transactions between e-commerce companies and end customers.

(6) ⁶⁾ As described in recitals (3)-(10) of the Commission decision of 28 May 2018, case SA.47707 (2018/N) - State compensations granted to PostNord for the provision of the universal postal service - Denmark (OJ C 360, 05.10.2018).

(7) ⁷⁾ Commission decision of 28 May 2018, case SA.47707 (2018/N) - State compensations granted to PostNord for the provision of the universal postal service - Denmark (OJ C 360, 05.10.2018(.

(8) ⁸⁾ The 2018 Decision did not address the claims of the complainant regarding the capital injections that allegedly form part of the Agreement of 20 October 2017. These capital injections were subsequently assessed in a separate Commission's decision of 10 September 2021, in cases SA.49668 (2019/C) (ex 2017/FC) and SA.53403 (2019/C) (ex 2017/FC), Capital injections for PostNord and Post Danmark (OJ L 93, 22.03.2022). The action for annulment against that decision was rejected by the General Court in its judgment of 29 January 2025, in case T-334/22, Danske Fragtmænd v Commission, ECLI:EU:T:2025:109.

(9) ⁹⁾ Communication from the Commission - European Union framework for State aid in the form of public service compensation (2011) (OJ C 8, 11.1.2012, p. 15).

(10) ¹⁰⁾ Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ L 248, 24.9.2015, p. 9).

(11) ¹¹⁾ A company incorporated under Danish law and active, inter alia, on the Danish market for road transport of goods and parcel distribution services.

(12) ¹²⁾ Judgment of 5 May 2021, in case T-561/18, ITD and Danske Fragtmænd v Commission, ECLI:EU:T:2021:240.

(13) ¹³⁾ Judgment of 10 November 2022 in case C-442/21 P ITD and Danske Fragtmænd v Commission, ECLI:EU:C:2022:872.

(14) ¹⁴⁾ The Rigsrevisionen is an independent institution placed under the control of the Danish Parliament. Its task is to perform financial audits and determine whether public accounts are correct. It also examines whether government-funded agencies and public enterprises comply with laws and regulations in force (compliance audit) and whether the administration focuses on economy, efficiency and effectiveness (performance audit). On 26 March 2020, the Rigsrevisionen launched an audit on the supervision of the accounting practices of Post Danmark. The final report of that audit was published on 15 January 2021 and is available at https://rigsrevisionen.dk/revisionssagerarkiv/2021/jan/beretning-om-tilsynet-med-post-danmarks-regnskabsprak.

(15) ¹⁵⁾ Regulation No 1/1958 determining the languages to be used by the European Economic Community (OJ 17, 6.10.1958, p. 385).

(16) ¹⁶⁾ The legal basis for the merger in Denmark was provided by: Lov om ændring af lov om Post Danmark A/S, Act No 542 of 17 June 2008, available at: https://www.retsinformation.dk/Forms/R0710.aspx?id=120348, last consulted on 15 June 2026. See also Commission Decision of 21 April 2009, Case M.5152 - Posten AB/Post Danmark A/S, available at: https://competition-cases.ec.europa.eu/cases/M.5152.

(17) ¹⁷⁾ Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008 amending Directive 97/67/EC with regard to the full accomplishment of the internal market of Community postal services, OJ L 52/3, ELI: http://data.europa.eu/eli/dir/2008/6/oj.

(18) ¹⁸⁾ Postloven, LOV nr 1536 of 21 December 2010, available at: https://www.retsinformation.dk/Forms/R0710.aspx?id=135208, last consulted on 15 June 2026. The law has been amended several times. As of 1 January 2024, through an amendment of the Postal Act (Lov om ændring af postloven, lov om Post Danmark A/S og lov om Det Centrale Personregister, LOV nr. 1572 af 12 december 2023, available at: https://www.retsinformation.dk/eli/lta/2023/1572, last consulted on 15 June 2026), the Danish state has terminated the model used historically for imposing USO on a designated postal operator in Denmark. From that date, Post Danmark is therefore no longer subject to universal service obligations at national level.

(19) ¹⁹⁾ For example, since 2013-2014 public authorities in Denmark have been required to use electronic communication in exchanges with citizens and undertakings, according to Lov om Offentlig Digital Post, LOV nr 528 of 11 June 2012, available at: https://www.retsinformation.dk/Forms/R0710.aspx?id=142234, last consulted on 15 June 2026.

(20) ²⁰⁾ Judgment of 16 May 2002, France v Commission, C-482/99, ECLI:EU:C:2002:294, paragraph 57 and case-law cited, according to which, the mere fact that a public undertaking has been constituted in the form of a capital company under ordinary law cannot, having regard to the autonomy which that legal form is capable of conferring upon it, be regarded as sufficient to exclude the possibility of an aid measure taken by such a company being imputable to the State. The existence of a situation of control and the real possibilities of exercising a dominant influence which that situation involves in practice makes it impossible to exclude from the outset any imputability to the State of a measure taken by such a company, and hence the risk of an infringement of the Treaty rules on State aid, notwithstanding the relevance, as such, of the legal form of the public undertaking as one indicator, amongst others, enabling it to be determined in a given case whether or not the State is involved.

(21) ²¹⁾ See paragraph 343 of the judgment in case T-561/18.

(22) ²²⁾ See paragraphs 346-348, of the judgment in case T-561/18.

(23) ²³⁾ In that regard, in the introduction to that report, PostNord's chief executive officer stated that PostNord's results "[continued] to be impacted by sharply declining mail volumes, above all in Denmark" and that "the rapid pace of digitization [had] led to a dramatic downward trend in volume and income in the Danish business", before announcing the adoption of a decision to introduce a new financially sustainable production model for the future.

(24) ²⁴⁾ See paragraphs 366-375 of the judgment in case T-561/18.

(25) ²⁵⁾ ITD refers to paragraphs 331-334 of the judgment in case T-561/18.

(26) ²⁶⁾ Entitled "Deep crisis in Postnord Danmark: Politicians are shocked. The Danish part of Postnord is in great financial trouble. The bill may end up with the tax payers".

(27) ²⁷⁾ "Sweden is [...] preparing to sue the Danish State" and "in the shareholders' agreement that regulates the relationship between the owners, there is a loyalty clause that Sweden considers that Denmark has violated. This happened when Denmark, through a political decision, implemented the world's most thorough digitization of mail".

(28) ²⁸⁾ The article, entitled "Postnord receives 2,2 billion in crisis package", states that "[u]pon a question from a journalist, Mikael Damberg [the Swedish Transport industry and commerce minister] says that it would not have been possible for Sweden alone to deliver on the agreement about PostNord. - 'No, the shareholder agreement which was concluded in 2009 [when PostNord AB was established] is very clear. It is not possible to come to any decision of any significance in the company without that both owners agree, says Mikael Damberg'".

(29) ²⁹⁾ ITD refers to paragraphs 335-342 of the judgment in case T-561/18.

(30) ³⁰⁾ ITD refers to paragraphs 342-344 of judgment in case T-561/18.

(31) ³¹⁾ Commission Decision of 14 June 2019 in cases SA.49668 (2019/C) (ex 2017/FC) and SA.53403 (2019/C) (ex 2017/FC), Capital injections for PostNord and Post Danmark, OJ L 93, 22.03.2022.

(32) ³²⁾ Judgment of 13 September 2023 in case T-525/20 ITD and Danske Fragtmænd v Commission, ECLI:EU:T:2023:542.

(33) ³³⁾ ITD refers to paragraph 62 of the judgment in case T-525/20.

(34) ³⁴⁾ ITD refers to paragraph 75 of the judgment in case T-525/20.

(35) ³⁵⁾ ITD refers to paragraph 105 of the judgment in case T-525/20, where the General Court found that, according to the internal rules of PostNord Group AB, the amount of the capital contribution exceeded the threshold for PostNord Group AB alone to decide to make the contribution, meaning that the Board of Directors had to authorise the contribution. According to ITD, precisely because it was the Board of Directors of PostNord AB who took the decision to grant the capital injection, and considering the dialogue between PostNord AB and the States, the General Court implied that the capital injection in the PostNord Logistics case was imputable to the State.

(36) ³⁶⁾ Commission Decision of 12 May 2020, in case SA.52489 and SA.52658, Alleged State aid to PostNord Logistics, OJ C 220 of 03.07.2020 and OJ C 294 of 04.09.2020.

(37) ³⁷⁾ According to ITD, for limited liability companies, such as Post Danmark, it is only the liquidation value of the assets (that is, assets that may produce a value through the liquidation) that may be included as liquidation costs. See judgment of 24 January 2013, C-73/11, Frucona Košice v Commission, EU:C:2013:32, paragraphs 79-80, where the Court of Justice held that the value of the liquidated assets includes the value of (i) non-current assets; (ii) stock; (iii) short-term receivables; and (iv) cash, with each element being given a liquidation factor in percentage representing the importance of each element in the total liquidated value.

(38) ³⁸⁾ ITD refers to the judgment of 11 September 2012, Corsica Ferries v Commission, T-565/08, EU:T:2012:415, paragraph 87 (upheld by Judgment 4 September 2014, in joined cases C-533/12 P and C-536/12 P, SNCM and France v Corsica Ferries, EU:C:2014:2142). ITD recalls that, as stated in the Opinion of AG Wathelet of 15 January 2014, SNCM and France v Corsica Ferries, joined cases C-533/12 P and C-536/12 P, EU:C:2014:4, paragraph 92 "[w]ithout ruling out, as a matter of principle, the possibility of providing the evidence required by the General Court, I would point out that it appears to me to be highly unlikely that the arguments put forward thus far by the States in connection with their brand image as global investors in a market economy could ever prevent their decisions from being classified as State aid in the light of the private investor test". ITD also listed a series of judgments and opinions in its view confirming the difficulties in meeting the conditions for including costs related to corporate image in liquidation costs: Judgment of 21 March 1991 in case C-303/88, Italy v Commission" EU:C:1991:136, paragraphs 21 and 24; Judgment of 14 September 1994 in case C-278/92, Spain v Commission, EU:C:1994:325; Opinion of AG Jacobs of 23 March 1994 in case C-278/92, Spain v Commission, EU:C:1994:112, paragraph 30; Judgment of 21 January 1999 in joined cases T-129/95, T-2/96 and T-97/96, Neue Maxhütte Stahlwerke and Lech-Stahlwerke v Commission, EU:T:1999:7, paragraph 126; Judgment of 4 September 2014 in joined cases C-533/12 P and C-536/12 P, SNCM and France v Corsica Ferries France, EU:C:2014:2142, paragraphs 40 and 41.

(39) ³⁹⁾ ITD refers to paragraphs 370-372 of the judgment in case T-561/18.

(40) ⁴⁰⁾ ITD refers to, inter alia, judgment of 5 June 2012 in case C-124/10 P, Commission v EDF, ECLI:EU:C:2012:318, paragraphs 82-83 and 85, and the case law cited therein.

(41) ⁴¹⁾ Communication from the Commission - Guidelines on State aid for rescuing and restructuring non-financial undertakings in difficulty, OJ C 249, 31.7.2014, p. 1.

(42) ⁴²⁾ Paragraph 2, subsection 2 of the Act on Post Danmark A/S of 23 May 2002.

(43) ⁴³⁾ Aktiebolagslag (2005:551) (Law on limited liability companies), available at: https://www.riksdagen.se/sv/dokument-och-lagar/dokument/svensk-forfattningssamling/aktiebolagslag-2005551_sfs-2005-551/.

(44) ⁴⁴⁾ In Sweden, the Minister for Finance is responsible for a uniform ownership policy for State-owned enterprises and is the Minister responsible for the vast majority of the State-owned enterprises. In 2017, the department of State-owned enterprises was formally organised under the Ministry of Enterprise and Innovation.

(45) ⁴⁵⁾ Aktiebolagslag (2005:551), available at: https://www.riksdagen.se/sv/dokument-och-lagar/dokument/svensk-forfattningssamling/aktiebolagslag-2005551_sfs-2005-551/, last consulted on 15 June 2026.

(46) ⁴⁶⁾ Available at: https://www.government.se/contentassets/c6382135343d45fe8685ab7fa53a2fa3/the-states-ownership-policy-and-guidelines-for-state-owned-enterprises-2017.pdf, last consulted on 15 June 2026.

(47) ⁴⁷⁾ The Swedish authorities submit that a director employed with the Government Offices can in his or her role as board director, apart from general expertise pertaining to board work, contribute knowledge of corporate governance matters and the State's ownership policy.

(48) ⁴⁸⁾ The Swedish authorities submitted that for each State-owned company, an analysis of required expertise is performed on the basis of the company's operations, situation and future challenges, board composition and completed board evaluations. The Government Offices' involvement in the board nomination process also includes a separate and ongoing evaluation of the boards of all State-owned enterprises. Any recruitment requirement is then determined, and the recruitment process initiated (Swedish State's Ownership Policy, Section 2.2.2). "[T]he composition of the board must be appropriate, diverse and wide-ranging as regards the competences, experience and background of the directors elected by the general meeting. Aspects of diversity, including ethnic and cultural background, should also be considered in the composition of the boards". Further, "to be considered for a directorship, the candidate must possess a high level of expertise relevant to the company's business operations, business development, industry expertise, financial matters, sustainable business or other relevant areas. In addition, the candidate must have the time and commitment required for the assignment, as well as the utmost integrity and the ability to safeguard the best interests of the company. All directors must be capable of independently assessing the company's operations". (Swedish State's Ownership Policy, Section 2.2.3). Further, "the Government seeks to achieve gender balance in individual company boards as well as at the portfolio level (Swedish State's Ownership Policy, Section 4.3.1). When the nomination process is complete, the adopted proposal of nomination must be published on the company's website and included in the notice to attend the general meeting, in accordance with the rules set out in the Swedish Corporate Code.

(49) ⁴⁹⁾ Available at https://fm.dk/media/dp1dw3d0/statens-ejerskabspolitik.pdf, p. 8 and 73-82.

(50) ⁵⁰⁾ According to the Danish authorities, the fact that 8 out of 11 board members are appointed by Denmark and Sweden (4 and 4) in the board of PostNord AB would not alter this conclusion.

(51) ⁵¹⁾ See the Danish State's ownership policy from April 2015, p. 17.

(52) ⁵²⁾ See the Danish State's ownership policy from April 2015, p. 28.

(53) ⁵³⁾ See the Danish State's ownership policy from April 2015, p. 30.

(54) ⁵⁴⁾ See the Danish State's ownership policy from April 2015, p. 43.

(55) ⁵⁵⁾ The Swedish authorities submit that it follows from the Swedish Ownership Policy (page 2) that "The state's ownership policy must be applied in all companies where the state is a majority owner. In respect of other companies in which the state is a minority owner, the state engages in a dialogue with the other owners in an effort to ensure that the ownership policy is applied." This is the case for PostNord AB, where the two owners have agreed that the respective ownership policies to the extent possible shall be applied by the company. The applicable Swedish Ownership Policy at the time of the 2017 capital injection can be found in https://www.government.se/reports/2017/06/the-states-ownership-policy-and-guidelines-for-state-owned-enterprises-2017/.

(56) ⁵⁶⁾ A board member will be personally liable when in the performance of its duties, intentionally or negligently, causes damage to the company because of e.g. violation of the Swedish Companies Act or the articles of association. This also includes violations of any value transfers from the company including business transactions resulting in the company's assets being reduced and which are not of a purely commercial nature for the company (Swedish Companies Act, Chapter 17, Section 1).

(57) ⁵⁷⁾ See page 14 in the Swedish Government's Annual Report for State-owned Enterprises (yearly submitted to the Riksdag for approval). The (at the time) Swedish Ministry of Enterprise and Innovation has a specific organisation specialised in corporate governance and investment management to ensure long-term value creation in the portfolio of State-owned enterprises. The investment organisation consists of investment directors and of experts in company analysis, sustainable business, commercial law and board recruitment. The investment directors each serve on a number of company boards and lead the ongoing work of the organisation related to the holdings, which is organised in investment teams. The organisation is now a part of the Swedish Ministry of Finance.

(58) ⁵⁸⁾ Section 5, subsection 5.1 of the Swedish Corporate Governance Code, as of 1 January 2024, available at: https://www.bolagsstyrning.se/Userfiles/Koden/Dokument/Eng/SweCorpGovernanceCode_applicable_from_1_January_2024.pdf, last consulted on 15 June 2026.

(59) ⁵⁹⁾ "3.2 Owner instructions. The owner instructs the company's board of directors through owner instructions. In state-owned enterprises, owner instructions are primarily applied when a company has specifically adopted public policy assignments, receives government subsidies, is in the process of restructuring or in the event of deregulations or other material changes. The contents of owner instructions should be relevant, specific and clear and be formalised through a resolution by the general meeting. Where an assignment is conveyed through owner instructions, the instructions must clearly state how the assignment is financed, reported and monitored". [emphasis added].

(60) ⁶⁰⁾ The Swedish authorities consider this limited number of cases to relate to issues that should be subject to "strategic review" including, for example, major strategic changes in the company's operations, major acquisitions, mergers, divestments or other decisions that significantly change the company's risk profile or balance sheet. The practice that has developed further entails that the Board of the company in question poses a question that can either be answered with a "yes or no" and it is a written procedure. The owner's position has only taken business-related factors into account.

(61) ⁶¹⁾ On 9 December 2016, on 23 December 2016, 12 January 2017, and on 9 February 2017.

(62) ⁶²⁾ At the beginning of 2017 when conducting the annual impairment test (conducted by PostNord and audited by KPMG) on Post Danmark's assets in accordance with IAS 36, PostNord was suddenly required to base its estimations of the recoverable amount for the cash-generating units on the "Fair value" method instead of the previously applied "Value in use" method. This led to a significant and unforeseen write down of Post Danmark's assets and to the sudden worsening of the 2016-year's results by DKK [...] million.

(63) ⁶³⁾ According to the Danish authorities, the alternative to making the 2017 capital injection of DKK 1 billion and restore Post Danmark's solvency ratio to [...]% would have been to let Post Danmark enter into bankruptcy. Such bankruptcy would have had significant adverse effects and risks obvious to the Board of PostNord AB. In the Danish authorities' view, this conclusion was supported by the likelihood of having the transformation plan adopted.

(64) ⁶⁴⁾ The Danish authorities submitted that on 24 February 2017, (i.e. the day after the 2017 capital injection was decided by PostNord), the Board of Directors of PostNord sent a letter to the two State owners with a recommendation to actively support the implementation of the plan to transform Post Danmark, as the PostNord group could not finance the transformation plan in its entirety on its own. The letter contained no mentioning of the 2017 capital injection of DKK 1 billion.

(65) ⁶⁵⁾ Unofficial English translation of the minutes of the quarterly meeting between PostNord and the Danish Minister of Transport: "[CEO of Post Danmark] informed that the parent company (PostNord AB) had just carried out a capital contribution of DKK 1 billion to Post Danmark A/S." [...] "[CEO of PostNord] noted that the group (the parent company) had repaid DKK 1 billion to Post Danmark and that the funds generally are directed to where they are needed. [CEO of PostNord] added that the group cannot finance all costs concerning the rearrangement of production in Denmark and for that reason sent a letter to the owners."

(66) ⁶⁶⁾ According to the Danish authorities the lack of involvement by the Danish State in the decision to redistribute capital to Post Danmark is demonstrated inter alia by the presentations of the Danish Ministry of Transport dated 9 and 22 February 2017. Those presentations consider only long-term solutions for Post Danmark, i.e. the transformation/restructuring of Post Danmark, including capital transfers which, at this stage, were being analysed and later were carried out in 2018 and 2019, and assessed by the Commission's decision in cases SA.49668 and SA.53403.

(67) ⁶⁷⁾ See footnote 65.

(68) ⁶⁸⁾ Annual report for State-owned enterprises 2017, p 15, which is yearly submitted to the Riksdag for approval, available at: https://www.government.se/contentassets/9c99e9a92e8e44fd9434e75dfd568961/annual-report-for-state-owned-enterprises-2017/, last consulted on 15 June 2026.

(69) ⁶⁹⁾ Agreement between the Kingdom of Sweden and the Kingdom of Denmark regarding PostNord AB, (20 October 2017), to support a transformation plan of Post Danmark.

(70) ⁷⁰⁾ In Swedish "Arbetsordning för Styrelsen i PostNord AB", which have been submitted by the Danish and Swedish authorities.

(71) ⁷¹⁾ The Danish authorities confirmed that only one person (ordinary board member appointed by Sweden), was employed in the "Swedish Ministry of Enterprises and Innovation". His role in the ministry was "Director and head of the Division for State-Owned Enterprises" and that none of the other members of the board were employed in ministries in Denmark or Sweden.

(72) ⁷²⁾ According to the Danish authorities, the risk of recovery of DKK [500-1.000] million (approximately EUR [65-135] million) and/or claims for damages should be seen in the light of the centralized financing and liquidity management that had been used by the PostNord group since 2009. According to the Danish authorities, an extraordinary dividend of DKK [500-1.000] million was paid from Post Danmark to PostNord Group in July 2015. The decision to pay this dividend was made at the board meeting held on 26 June 2015. Its aim was to improve returns on deposits since the interest rates on deposits were negative in Denmark and positive in Norway. By redistributing the capital to the sister company in Norway, PostNord improved the group's overall return on capital. This was in line with PostNord's policy of centralised financing. Under Sections 67(2) and 74 of the Danish Bankruptcy Act ("Konkursloven", LBKG 2014-01-06 nr 11, as changed with law. L 2015-05-04 nr 573) payments of dividends made within two years from the bankruptcy date from a wholly owned subsidiary to its parent company - may, under certain conditions, be recovered in bankruptcy. The two-year time limit in Section 67(2) applies to "connected persons". Connected persons are defined in Section 2 of this Act, and a wholly owned subsidiary and its parent company are considered connected persons according to this Act. Section 74 is as such not time limited. The Danish authorities also explained that the risk of having to pay damages follows from Section 179 and 194(1) of the Danish Companies Act (Act on Public and Private Limited Companies ("Lov om aktie- og anpartsselskaber"), LBKG 2015-09-14 nr 1089) and the general Danish tort law, which provide that the company management must ensure distributions are financially sound and not harmful to the company or its creditors. Unlawful distributions of dividends must be repaid if the shareholder knew or should have known they were improper.

(73) ⁷³⁾ As the need for capital was urgent and necessary to allow for the adoption and implementation of the transformation plan, and as the 2017 capital injection of DKK 1 billion reduced PostNord's preexisting risk exposure connected to a bankruptcy in Post Danmark.

(74) ⁷⁴⁾ According to the Danish authorities, the adoption of the transformation plan was sufficiently probable seen from a perspective of 23 February 2017 given the ongoing discussions with the owner States on this matter and the analysis performed by Nordea on the economic situation in the PostNord group on behalf of Denmark on 20 March 2017.

(75) ⁷⁵⁾ Presentation slides of the Danish Ministry of Transport for the meeting of 9 February 2017 (p. 8) submitted by the Danish authorities.

(76) ⁷⁶⁾ Judgment of 16 May 2002 in case C-482/99, France v Commission, ECLI:EU:C:2002:294, paragraph 52.

(77) ⁷⁷⁾ Judgment of 12 December 1996 in case T-358/94, Air France v Commission, ECLI:EU:T:1996:194, paragraph 56.

(78) ⁷⁸⁾ Judgment of 16 May 2002 in case C-482/99, France v Commission, ECLI:EU:C:2002:294, paragraph 38. See also judgment of 29 April 2004 in case C-278/00, Greece v Commission, ECLI:EU:C:2004:239, paragraphs 53 and 54, and judgment of 8 May 2003 in joined Cases C-328/99 and C-399/00, Italy and SIM 2 Multimedia SpA v Commission, ECLI:EU:C:2003:252, paragraphs 33 and 34.

(79) ⁷⁹⁾ Judgment of 16 May 2002, France v Commission, C-482/99, ECLI:EU:C:2002:294, paragraph 38.

(80) ⁸⁰⁾ Judgment of 12 December 1996 in case T-358/94, Air France v Commission, ECLI:EU:T:1996:194, paragraphs 58 to 62.

(81) ⁸¹⁾ See paragraph 333-334 of the judgment in case T-561/18.

(82) ⁸²⁾ Paragraph 332 of the 2021 T-561/18 judgment and case-law cited.

(83) ⁸³⁾ Paragraph 60 of the judgment in case T-525/20.

(84) ⁸⁴⁾ 8 out of 11 members of the Board of Directors of PostNord were appointed by the Danish and the Swedish authorities. See recital (45) for further detail on Board members' appointment procedures.

(85) ⁸⁵⁾ However, the Swedish authorities submit that to the best of their knowledge, the Government Offices of Sweden was at the time not aware of this information and the Government Offices has no identified copies or records in its archives of the two presentations by the Danish Ministry of Transport dated 9 and 22 February 2017.

(86) ⁸⁶⁾ Paragraph 95 of the judgment in case T-525/20.

(87) ⁸⁷⁾ Paragraph 104 of the judgment in case T-525/20.

(88) ⁸⁸⁾ Paragraph 105 of the judgment in case T-525/20.

(89) ⁸⁹⁾ Judgment of 11 July 1996 in case C-39/94, SFEI and others, ECLI:EU:C:1996:285, paragraphs 60-61.

(90) ⁹⁰⁾ Judgment of 5 June 2012 in case C-124/10 P, Commission v EDF, ECLI:EU:C:2012:318, paragraphs 83-85 and 105; judgment of 16 May 2002 in case C-482/99, France v Commission, ECLI:EU:C:2002:294, paragraphs 71-72; judgment of 30 April 1998 in case T-16/96, Cityflyer Express v Commission, ECLI:EU:T:1998:78, paragraph 76.

(91) ⁹¹⁾ Denmark has provided several presentations to the Board of Directors of PostNord, dated 27 October and 9 December 2016, and 12 January and 9 February 2017. The presentations contain estimates and options for the implementation of the transformation plan.

(92) ⁹²⁾ Denmark has provided a draft overview of the main direct economic effects of a bankruptcy of Post Danmark on PostNord AB and PostNord Group AB dated 14 December 2016.

(93) ⁹³⁾ According to paragraph 363 of the judgment in case T-561/18 "[...] Post Danmark's bankruptcy would have had the following negative effects:

- the loss of trust of credit and capitals markets, customers, suppliers, property owners, employees and other stakeholders in the whole group;

(94) ⁹⁴⁾ See paragraph 107 and footnote 167 of the Commission Notice on the notion of State aid as referred to in Article 107(1) of the Treaty on the Functioning of the European Union (OJ C 262, 19.7.2016, p. 1).

(95) ⁹⁵⁾ Judgment of 4 June 2015 in case C-15/14 P, Commission v MOL, ECLI:EU:C:2015:362, paragraph 60; judgement of 30 June 2016 in case C-270/15 P, Belgium v Commission, ECLI:EU:C:2016:489, paragraph 49; and judgment of 13 December 2017 in case T-314/15 Greece v Commission, ECLI:EU:T:2017:903, paragraph 79.

(96) ⁹⁶⁾ Judgement of 28 April 1993 in case C-364/90, Italian Republic v Commission of the European Communities, ECLI:EU:C:1993:157, paragraph 20.

• Identyfikator: Dz.U.UE.C.2026.4356
• Rodzaj: informacja
• Tytuł: Pomoc państwa - Dania i Szwecja - Pomoc państwa SA.47707 (2018/FC) Domniemana pomoc na rzecz Post Danmark dotycząca zastrzyku kapitałowego - Zaproszenie do zgłaszania uwag zgodnie z art. 108 ust. 2 Traktatu o funkcjonowaniu Unii Europejskiej
• Data aktu: 2026-06-30
• Data ogłoszenia: 2026-08-12