State aid update for Sweden: the two first State aid preliminary references to the ECJ – and new responsibilities for the Swedish Competition Authority in State aid
Swedish courts have assumed to play a more active role in interpreting and applying the EU State aid rules. This development is marked by the first-ever preliminary references from Swedish courts to the European Court of Justice (the “ECJ”) in two cases during the last year: C-401/24, Stockholms Hamn and C-442/25, SAS. In addition, increased interest for State aid issues is expected due to a shift in responsibilities for the involved national authorities, in order to ensure an efficient handling of State aid cases. We comment on these important developments in this blog post.
C-401/24 – Stockholms Hamn – Advocate General opinion issued in July 2025
The case concerns a dispute between the Swedish Maritime Administration (Sw. “Sjöfartsverket”) and Stockholms Hamn AB, a municipally owned port operator. In 1979, the Swedish authorities abolished lockage fees for commercial vessels passing through the Hammarby lock – a key infrastructure connecting the lake Mälaren to the Baltic Sea through central Stockholm. To compensate for the resulting loss of revenue, Sjöfartsverket agreed to make annual payments to Stockholms Hamn AB for providing the lock service free of charge. This compensation arrangement remained in place from 1979 until 2021, when Sjöfartsverket unilaterally terminated the agreement and claimed that the payments constituted unlawful State aid. It demanded that Stockholms Hamn AB repay approximately MSEK 38 (approx. MEUR 3.8). Stockholms Hamn AB disputed the claim. In June 2024, the court of first instance the Stockholm District Court, referred the matter to the European Court of Justice (the “ECJ”).
In his opinion issued in July 2025, Advocate General Biondi concludes that Stockholms Hamn AB likely carries out an economic activity, particularly in managing and granting access to port infrastructure. The compensation thus has the potential to confer a selective advantage to an undertaking through state resources which it would not have obtained under normal market conditions. It is for the national court to determine the existence of a selective advantage based on the factual circumstances, including the commercial nature of the lock operations as well as whether the compensation is liable to affect trade between Member States and distort competition.
While Biondi acknowledges the possible presence of a service of general economic interest (SGEI), he casts serious doubt on whether the so-called Altmark criteria, as set out in the ECJ’s case C‑280/00, are met.
Importantly, Advocate General Biondi also considers that the compensation scheme may qualify as “existing aid” – that is, aid already in place before a Member State joined the EU and not substantially modified thereafter, which is considered as lawful aid and does not need to be notified to the Commission. Because the arrangement was introduced in 1979 – well before Sweden’s EU accession in 1995 – and its structure has remained largely unchanged, it may fall under this category. Biondi noted that minor adjustments – such as inflation indexation or automatic renewals for five years at the time in the absence of notice of termination of that contract – do not in themselves constitute new aid. However, he emphasised that it is ultimately for the national court to assess whether any changes amount to a substantial modification of the original measure, in which case the scheme no longer qualifies as existing aid.
C-442/25 – SAS – request for a preliminary ruling made in July 2025
The second preliminary reference, made in July 2025, arises from a dispute between Scandinavian Airlines (“SAS”), and the Swedish State. In 2020, SAS received recapitalisation support from the Swedish and Danish governments as part of their COVID-19 relief efforts. The aid was initially approved by the European Commission (the “Commission”) under the Temporary Framework and disbursed shortly thereafter. However, in 2023, the General Court annulled the Commission’s approval due to a procedural flaw – specifically, the absence of a required “step-up” mechanism for public equity participation. However, the Commission re-approved the aid in a new decision adopted in November 2023.
SAS initiated legal proceedings, seeking a declaratory judgment that it is not obliged to pay interest to the State for the period October 2020 – November 2023 or alternatively that any such obligation may not exceed MSEK 222 (approximately MEUR 22,2). SAS argues that the aid was granted in good faith and that no undue advantage was retained during the interim period and that no one would suffer damage if no interest is paid since the amount is due to be recouped by the creditors following a US Chapter 11 procedure. The Stockholm District Court has asked the ECJ to clarify whether interest is due in such cases, and how it should be calculated. The case highlights the legal uncertainty faced by aid beneficiaries when aid approved by the Commission is subsequently challenged before the EU courts and it will clarify whether interest, and at what interest rate, must be paid on aid that is rendered temporarily unlawful.
Suggested reorganisation of State aid responsibilities in Sweden – new role for the Swedish Competition Authority
The Swedish Government is proposing an institutional reform to centralise State aid matters, under which the the Swedish Competition Authority (the “SCA”) would be responsible for providing guidance to public authorities and for registering aid. In April 2025, the Government proposed to give the SCA a formal mandate to support and coordinate the national application of the State aid rules. While the SCA would not be empowered to recover unlawful aid – that remains the exclusive competence of the European Commission – it would play a central role in guiding public authorities and facilitating compliance. Thus, the reform would transfer the guidance role currently carried out by the Government offices as well as the Swedish Agency for Public Procurement to the SCA. Also, the reporting role would be moved from the Swedish Agency for Growth Policy Analysis to the SCA. The SCA is suggested to be responsible for coordinating and supporting the application of EU State aid rules across Swedish public authorities. This includes providing guidance, collecting information, and facilitating the Commission’s supervision. The proposal is expected to enter into force in January 2027, with the aim of improving efficiency and minimise vulnerabilities. The Swedish Ministry of Climate and Enterprise will however remain responsible for notifying aid and maintaining contact with the Commission.
Concluding remarks – towards greater scrutiny of State aid in Sweden
For the first time, a Swedish court has referred questions to the ECJ concerning the interpretation of EU State aid law. This marks a significant development, reflecting not only a greater willingness of Swedish courts to make references for preliminary rulings in general, but also a particular readiness to do so in State aid cases. Whilst Swedish courts have previously adjudicated State aid matters, these references underscore the critical importance of ensuring correct application of EU law in this area.
This judicial evolution, combined with the SCA’s newly centralised role in State aid matters, is expected to significantly raise awareness of State aid issues among aid providers, recipients, and competitors potentially affected by unlawful aid measures.
Collectively, these developments signal a transition towards a more proactive and systematic approach to State aid control in Sweden, encompassing both judicial proceedings and public administration. Public authorities and aid beneficiaries should therefore anticipate enhanced scrutiny and ensure their measures fully comply with EU State aid rules.
At Delphi, we provide expert guidance on State aid matters for aid providers, beneficiaries, and interested parties, ensuring comprehensive compliance with applicable requirements.