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            COMMISSION DECISION         

of 16 March 2004         

on the State aid paid by Italy to the Adriatica, Caremar, Siremar, Saremar and Toremar shipping companies (Tirrenia Group)

(notified under document number C(2004) 470)

(Only the Italian text is authentic)

(Text with EEA relevance)

(2005/163/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community, and in particular the first subparagraph of Article 88(2) thereof,

Having regard to the Agreement on the European Economic Area, and in particular Article 62(1)(a) thereof,

Having, pursuant to the aforementioned Articles, called on the parties concerned to submit their comments (1),

Whereas:

I.   PROCEDURE

II.   DETAILED DESCRIPTION OF THE AID MEASURES

The relevant markets

Saremar

Toremar

Siremar

Caremar

Subsidies paid in respect of public service obligations

The legislative framework

The public service agreements

The five-year plans

The annual balancing subsidy

Investment scheduled in the five-year plans and the business plan

Preferential fiscal treatment

III.   COMMENTS FROM THE PARTIES CONCERNED

Comments from the Tirrenia Group companies

Comments from private operators

IV.   COMMENTS FROM THE ITALIAN AUTHORITIES

Subsidies paid in respect of public service obligations

The investment scheduled in the business plan

Preferential fiscal treatment

V.   ASSESSMENT OF THE AID

Subsidies paid in respect of public service obligations

Existence of aid

The new aid measure

Appraisal of the compatibility of the aid

Existence of public service obligations meeting an actual requirement

Cabotage connections with the minor Italian islands

The international connections

Comparable competition

Adriatica

The international connections

The cabotage connections

Siremar

Saremar

Toremar

Caremar

Need for compensation

Impact on the development of trade

The cabotage connections

The Italian authorities’ undertakings

The international connections

Investment scheduled in the five-year plans and the business plan

Compatibility with other provisions of Community law

Future application of the compensation mechanism

VI.   CONCLUSIONS

HAS ADOPTED THIS DECISION:

Article 1

1.   Without prejudice to the provisions of paragraph 2, the aid granted by Italy to Adriatica as of 1 January 1992 as compensation for providing a public service is compatible with the common market having regard to Article 86(2) of the Treaty.

2.   The aid granted to Adriatica for the period from January 1992 to July 1994 in relation to the Brindisi/Corfu/Igoumenitsa/Patras connection is incompatible with the common market.

3.   Italy shall take all necessary steps to recover from Adriatica the aid referred to in paragraph 2 granted to that company unlawfully.

Recovery shall be effected without delay in accordance with the procedures stipulated under Italian law, provided that these permit the immediate and effective execution of this decision.

The aid to be recovered shall yield interest from the date on which it was made available to the recipient to the date on which it is recovered. The interest shall be calculated on the basis of the reference rate used to calculate the equivalent regional aid subsidy on a compound basis, as stipulated in the Commission Communication on the interest rates to be applied when aid granted unlawfully is being recovered.

4.   As of 1 January 2004, separate accounts must be kept for all the public service activities imposed by Italy on the Adriatica company on each of the routes concerned.

Article 2

1.   The aid granted by Italy to Siremar, Saremar and Toremar as of 1 January 1992 as compensation for providing a public service is compatible with the common market having regard to Article 86(2) of the Treaty.

2.   As of 1 January 2004, separate accounts must be kept for all the public service activities imposed by Italy on Siremar, Saremar and Toremar on each of the routes concerned.

Article 3

1.   The aid granted by Italy to Caremar as of 1 January 1992 as compensation for providing a public service is compatible with the common market having regard to Article 86(2) of the Treaty.

2.   Italy shall give an undertaking that, by no later than 1 September 2004, it will:

Article 4

The capacity reduction undertakings specified in Article 3 shall be included in the interministerial decree adapting the regional companies’ five-year plan for the period 2005 to 2008.

Article 5

The Commission shall be notified in advance of any permanent change, whether partial or total, to the level of services offered by Adriatica, Siremar, Saremar, Toremar or Caremar such as would entail an increase in the aid.

Article 6

Italy shall inform the Commission, within two months of notification of this Decision, of the measures taken to comply with it.

Article 7

This Decision is addressed to the Italian Republic.

Done at Brussels, 16 March 2004.

For the Commission

Loyola DE PALACIO            

Vice-President

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(1)OJ C 306, 23.10.1999, p. 2.

(2)  See footnote 1.

(3)  Case C-400/99, pending as to the merit. In its judgment of 9 October 2001 (ECR I-7303), the Court rejected the Commission’s cross application that Italy’s action be declared inadmissible.

(4)  Pending Case T-246/99.

(5)OJ L 318, 4.12.2001, p. 9.

(6)  Services transferred from the Tirrenia di Navigazione company to Adriatica on 1 February 2001.

(7)  See footnote 2.

(8)  Of the 596 943 passengers carried by Adriatica in 2000, 397 146 travelled on routes in the middle and lower Adriatic (334 639 of them between Italy and Albania) and 161 024 on the connections with the Tremiti archipelago.

(9)  Of the 779 223 linear metres of freight carried by Adriatica in 2000, 306 124 was carried on routes in the middle and lower Adriatic (of which 235 542 between Italy and Albania) and 473 099 on the connections with Sicily.

(10)  Comparable to the Genoa/Palermo route served by competitors, in that the ports of Palermo and Termini Imerese, which are only a few kilometres apart, can be regarded as mutually substitutable.

(11)  On the four scheduled routes operated by the company, there is an average of one sailing per hour between 6 a.m. and 10 p.m.

(12)  For each route served, there is an average of one sailing per hour from all ports from 6 a.m. to 10 p.m.

(13)  Data taken from the PricewaterhouseCoopers study Valutazione dei criteri di predisposizione dei conti economici gestionali per linea e stagionalità relativi agli esercizi 1992-1999, supplemented by the Italian authorities to include the years 2000 and 2001. The study reproduces the analytical accounts of the Tirrenia Group companies and assesses the operating costs and revenue for each of the routes.

(14)  In 1992 Saremar carried out a total of 18 000 trips on the four routes it operates. In 2000 the number of trips was around 20 000.

(15)  In 2000 the company carried out a total of 9 097 trips on its network of routes, compared with 8 300 in 1992.

(16)  In 2000 Siremar carried out a total of 11 910 trips on its various routes; in 1992 it carried out 11 919.

(17)  In 2000 the company carried out a total of 11 900 trips on 18 scheduled routes (11 700 in 1992).

(18)  In 2000 the company carried out 12 872 trips on 12 routes (15 650 in 1992).

(19)  See footnote 4.

(20)OJ L 364, 12.12.1992, p. 7.

(21)  See footnote 3.

(22)  Case C-280/00, not yet published.

(23)  Judgment of the Court in Case C-205/1999 Analir and others [2001] ECR I-1271.

(24)OJ L 378, 31.12.1986, p. 1. Regulation as amended by Regulation (EEC) No 3573/90 (OJ L 353, 17.12.1990, p. 16).

(25)  Judgment in Altmark Trans, paragraphs 77-82, see footnote 22.

(26)  See here the Court’s judgments in Case 102/87 France v Commission [1988] ECR 4067, paragraph 19; Case C-305/89 Italy v Commission [1991] ECR I-1603, paragraph 26, joint Cases C-278/92, C-279/92 and C-280/92 Spain v Commission [1994] ECR I-4103, paragraph 40; Altmark Trans, cit., paragraph 78.

(27)  Judgments in joined cases T-116/01 and T-118/01 P&O European Ferries, paragraph 118, Case C-301/87 France v Commission [1990] ECR I-307, paragraph 33, and Case T-55/99 CETM v Commission [2000] ECR II-3207, paragraph 103.

(28)  See footnote 20.

(29)  Commission Decision 2000/394/EC of 25 November 1999 on aid to firms in Venice and Chioggia by way of relief from social security contributions under Laws Nos 30/1997 and 206/1995 (OJ L 150, 23.6.2000, p. 50).

(30)  Judgment in Altmark Trans, paragraph 94, see footnote 22.

(31)OJ C 239, 25.9.1990, p. 10.

(32)  Case 120/73 Lorenz [1973] ECR 1471.

(33)  Order of the Court of 24 July 2003, Case C-297/01 Sicilcassa (not yet published in the ECR).

(34)OJ L 83, 27.3.1999, p. 1. Regulation as amended by the 2003 Act of Accesion.

(35)  See the last sentence of point 2 of the Guidelines on national regional aid (OJ C 74, 10.3.1998, p. 9).

(36)  Point 4.15 of the Guidelines, see footnote 35.

(37)  Judgment of the Court of First Instance in Case T-106/95 Fédération française des sociétés d’assurances (FFSA et al.) v Commission [1997] ECR II-229, paragraph 173 of the grounds.

(38)  See also the judgment of the Court in Case C-179/90 Merci convenzionali Porto di Genova [1991] ECR I-5889, paragraph 26.

(39)  Commission Communication C(2004) 43 — Community guidelines on State aid to maritime transport (OJ C 13, 17.1.2004, p. 3) and, for the previous period, the 1997 guidelines (OJ C 205, 5.7.1997, p. 5) and, where applicable, the 1989 guidelines (SEC (89) 921 def. of 3 August 1989).

(40)  Judgment in Analir and others, see footnote 23.

(41)OJ L 378, 31.12.1986, p. 1.

(42)  See footnote 39.

(43)  For instance, in 2001 one of this operator’s two ships was withdrawn from this market segment and transferred to more profitable connections.

(44)  Commission Decision 1999/271/EC of 9 December 1998 relating to a proceeding pursuant to Article 85 of the EC Treaty (IV/34466 — Greek Ferries) (OJ L 109, 27.4.1999, p. 24), confirmed, as regards the establishment and construal of the facts, by the judgment of the Court of First Instance of 11 December 2003 in Case T-61/99 Adriatica di Navigazione v Commission (not yet published).

(45)  Judgment of the Court in Case C-225/91 Matra SA v Commission [1993] ECR I-3203, paragraphs 41-43.

(46)  In 1991, 20 096 passengers and 24 205 linear metres of cargo were carried; in 2000, 334 639 passengers and 235 542 linear metres of cargo were carried.

(47)  In 1994, 9 866 passengers and 7 494 linear metres of cargo were carried; in 2000, 48 281 passengers and 43 563 linear metres of cargo were carried.

(48)  Judgment in Analir and others, see footnote 23.

(*1)  Business secret.

(49)  Decision 2001/851/EC, see footnote 5.

(50)  Data taken from the PricewaterhouseCoopers study, see footnote 13.

(*2)  Official ISTAT index.

(51)  In 1998 a cumulative net loss of ITL 12 216 billion was recorded for the connections with Greece.

(52)OJ C 205, 5.7.1997, p. 5.

(53)  Judgment of the Court in Case C-320/91 Corbeau [1993] ECR I-2533.

(54)  On the concept of State aid, see the Altmark Trans judgment, footnote 22.

(55)  Comparable to the Genoa/Palermo route operated by the private competitor.

(56)  For instance, the acquisition of two high-speed craft was financed via a loan taken out with the Banco di Napoli in 1999 for ITL 160 billion at a variable rate equal to the six-month Euribor rate, raised by 0,40 % and repayable over 10 years. The information supplied by the Italian authorities shows that the same credit institution granted loans at the same time to other large companies under virtually identical conditions.

(57)  See Commission notice on the application of Articles 87 and 88 of the EC Treaty to State aid in the form of guarantees (OJ C 71, 11.3.2000, p. 14).

(58)  See footnote 39.

(59)  See footnote 39.

(60)  See judgments of the Court in Case C-73/79 Commission v Italy [1980] ECR I-1533, paragraph 11; Case C-225/91 Matra SA v Commission [1993] ECR I-3203, paragraph 41; Case C-156/98 Germany v Commission [2000] ECR I-6857, paragraph 78.

(61)Matra judgment, paragraphs 42 and 43, see footnote 61.

(62)  Commission Decision 1999/271/EC of 9 December 1999 relating to a proceeding pursuant to Article 85 of the EC Treaty (IV/34466 — Greek Ferries) (OJ L 109, 27.4.1999, p. 24), confirmed, on this point, by the judgment of the Court of First Instance of 11 December 2003 in Case T-61/99 Adriatica di Navigazione v Commission (not yet published).

(63)  As interpreted by the Commission in Communication C(2004)43 def. — Community guidelines on State aid to maritime transport, see footnote 39.

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