# Official Journal L 49/2018

| | ISSN 1977-0677 |
| --- | --- |
| Official Journal
  of the European Union | L 49 |
| | |
| English edition | Legislation | Volume 6122 February 2018 |

ISSN 1977-0677

Official Journal

of the European Union

L 49

English edition

Legislation

Volume 6122 February 2018

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| Contents | | II   Non-legislative acts | page |
| --- | --- | --- | --- |
| | | REGULATIONS |
| | * | Commission Implementing Regulation (EU) 2018/258 of 21 February 2018 amending Implementing Regulation (EU) No 725/2011 for the purpose of adjusting it to the change in the regulatory test procedure and simplifying the administrative procedures for application and certification (
  1
  ) | 1 |
| | * | Commission Implementing Regulation (EU) 2018/259 of 21 February 2018 amending Implementing Regulation (EU) No 427/2014 for the purpose of adjusting it to the change in the regulatory test procedure and simplifying the administrative procedures for application and certification (
  1
  ) | 9 |
| | * | Commission Implementing Regulation (EU) 2018/260 of 21 February 2018 terminating the investigation concerning the possible circumvention of anti-dumping measures imposed by Council Implementing Regulation (EU) No 1008/2011, as amended by Implementing Regulation (EU) No 372/2013, on imports of hand pallet trucks and their essential parts originating in the People's Republic of China by imports consigned from Vietnam, whether declared as originating in Vietnam or not | 16 |
| | | DECISIONS |
| | * | Commission Decision (EU) 2018/261 of 22 January 2014 on the measures SA.32014 (2011/C), SA.32015 (2011/C), SA.32016 (2011/C) implemented by the Region of Sardinia in favour of Saremar
  (notified under document C(2013) 9101)

   (
  1
  ) | 22 |
| | * | Commission Decision (EU) 2018/262 of 14 February 2018 on the proposed citizens' initiative entitled We are a welcoming Europe, let us help!
  (notified under document C(2018) 895) | 64 |
| | * | Commission Implementing Decision (EU) 2018/263 of 20 February 2018 amending Implementing Decision 2014/709/EU concerning animal health control measures relating to African swine fever in certain Member States
  (notified under document C(2018) 889)

   (
  1
  ) | 66 |

Contents

II   Non-legislative acts

page

REGULATIONS

*

Commission Implementing Regulation (EU) 2018/258 of 21 February 2018 amending Implementing Regulation (EU) No 725/2011 for the purpose of adjusting it to the change in the regulatory test procedure and simplifying the administrative procedures for application and certification (
  1
  )

1

1

*

Commission Implementing Regulation (EU) 2018/259 of 21 February 2018 amending Implementing Regulation (EU) No 427/2014 for the purpose of adjusting it to the change in the regulatory test procedure and simplifying the administrative procedures for application and certification (
  1
  )

1

9

*

Commission Implementing Regulation (EU) 2018/260 of 21 February 2018 terminating the investigation concerning the possible circumvention of anti-dumping measures imposed by Council Implementing Regulation (EU) No 1008/2011, as amended by Implementing Regulation (EU) No 372/2013, on imports of hand pallet trucks and their essential parts originating in the People's Republic of China by imports consigned from Vietnam, whether declared as originating in Vietnam or not

16

DECISIONS

*

Commission Decision (EU) 2018/261 of 22 January 2014 on the measures SA.32014 (2011/C), SA.32015 (2011/C), SA.32016 (2011/C) implemented by the Region of Sardinia in favour of Saremar
  (notified under document C(2013) 9101)

   (
  1
  )

(notified under document C(2013) 9101)

1

22

*

Commission Decision (EU) 2018/262 of 14 February 2018 on the proposed citizens' initiative entitled We are a welcoming Europe, let us help!
  (notified under document C(2018) 895)

(notified under document C(2018) 895)

64

*

Commission Implementing Decision (EU) 2018/263 of 20 February 2018 amending Implementing Decision 2014/709/EU concerning animal health control measures relating to African swine fever in certain Member States
  (notified under document C(2018) 889)

   (
  1
  )

(notified under document C(2018) 889)

1

66

| | |
| --- | --- |
| | (1)   Text with EEA relevance. |

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(1)   Text with EEA relevance.

1

| EN | Acts whose titles are printed in light type are those relating to day-to-day management of agricultural matters, and are generally valid for a limited period.
  The titles of all other Acts are printed in bold type and preceded by an asterisk. |
| --- | --- |

EN

Acts whose titles are printed in light type are those relating to day-to-day management of agricultural matters, and are generally valid for a limited period.

The titles of all other Acts are printed in bold type and preceded by an asterisk.

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II Non-legislative acts

REGULATIONS

| 22.2.2018 | EN | Official Journal of the European Union | L 49/1 |
| --- | --- | --- | --- |

22.2.2018

EN

Official Journal of the European Union

L 49/1

---

COMMISSION IMPLEMENTING REGULATION (EU) 2018/258

of 21 February 2018

amending Implementing Regulation (EU) No 725/2011 for the purpose of adjusting it to the change in the regulatory test procedure and simplifying the administrative procedures for application and certification

(Text with EEA relevance)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Regulation (EC) No 443/2009 of the European Parliament and of the Council of 23 April 2009 setting emission performance standards for new passenger cars as part of the Community's integrated approach to reduce CO2 emissions from light-duty vehicles (1), and in particular Article 12(2) thereof,

Whereas:

| (1) | The Worldwide Harmonized Light Vehicle Test Procedure (WLTP) set out in Commission Regulation (EU) 2017/1151 (2) was adopted by the Commission on 1 June 2017. The WLTP replaces the New European Driving Cycle (NEDC) set out in Annex XII to Commission Regulation (EC) No 692/2008 (3). From 2021, compliance with the CO2 emissions targets set out in Regulation (EC) No 443/2009 are to be verified on the basis of CO2 emissions determined in accordance with the WLTP procedure. From that date, also CO2 eco-innovation savings should be determined by reference to the WLTP. |
| --- | --- |

(1)

The Worldwide Harmonized Light Vehicle Test Procedure (WLTP) set out in Commission Regulation (EU) 2017/1151 (2) was adopted by the Commission on 1 June 2017. The WLTP replaces the New European Driving Cycle (NEDC) set out in Annex XII to Commission Regulation (EC) No 692/2008 (3). From 2021, compliance with the CO2 emissions targets set out in Regulation (EC) No 443/2009 are to be verified on the basis of CO2 emissions determined in accordance with the WLTP procedure. From that date, also CO2 eco-innovation savings should be determined by reference to the WLTP.

| (2) | To reflect the change in the regulatory test procedure and taking into account the procedure to correlate the WLTP CO2 values into the corresponding NEDC CO2 values, set out in Commission Implementing Regulation (EU) 2017/1153 (4), it is necessary to amend Commission Implementing Regulation (EU) No 725/2011 (5). |
| --- | --- |

(2)

To reflect the change in the regulatory test procedure and taking into account the procedure to correlate the WLTP CO2 values into the corresponding NEDC CO2 values, set out in Commission Implementing Regulation (EU) 2017/1153 (4), it is necessary to amend Commission Implementing Regulation (EU) No 725/2011 (5).

| (3) | To ensure a smooth transition from the NEDC to the WLTP, it should be possible to submit an application for the approval of an innovative technology as an eco-innovation by reference to the NEDC until 31 December 2019, and to the WLTP from the entry into force of this Regulation. |
| --- | --- |

(3)

To ensure a smooth transition from the NEDC to the WLTP, it should be possible to submit an application for the approval of an innovative technology as an eco-innovation by reference to the NEDC until 31 December 2019, and to the WLTP from the entry into force of this Regulation.

| (4) | While the Commission has granted more than twenty approvals of eco-innovations, the deployment by manufacturers of those technologies in the European Union vehicle fleet has until 2017 been quite limited. In order to promote a more extensive deployment of those technologies and obtain the highest potential for reducing CO2 emissions from passenger cars, the approval and certification process should be simplified. |
| --- | --- |

(4)

While the Commission has granted more than twenty approvals of eco-innovations, the deployment by manufacturers of those technologies in the European Union vehicle fleet has until 2017 been quite limited. In order to promote a more extensive deployment of those technologies and obtain the highest potential for reducing CO2 emissions from passenger cars, the approval and certification process should be simplified.

| (5) | Lowering the savings threshold to 0,5 g CO2/km is likely to promote a wider deployment of innovative technologies capable of reducing CO2 emissions. However, in order to ensure that those CO2 savings are actually achieved, it is essential that they are determined very accurately. It is therefore necessary to assess and quantify the uncertainty that is linked to the methods used for demonstrating the savings and to take that uncertainty into account when the CO2 savings are certified by the approval authority. It is appropriate to align the change of the savings threshold with the introduction of the WLTP, and as a consequence the new threshold should apply for the purpose of applications made by reference to the WLTP. |
| --- | --- |

(5)

Lowering the savings threshold to 0,5 g CO2/km is likely to promote a wider deployment of innovative technologies capable of reducing CO2 emissions. However, in order to ensure that those CO2 savings are actually achieved, it is essential that they are determined very accurately. It is therefore necessary to assess and quantify the uncertainty that is linked to the methods used for demonstrating the savings and to take that uncertainty into account when the CO2 savings are certified by the approval authority. It is appropriate to align the change of the savings threshold with the introduction of the WLTP, and as a consequence the new threshold should apply for the purpose of applications made by reference to the WLTP.

| (6) | For the purpose of demonstrating the CO2 savings, component testing should be possible in those cases where the savings are not vehicle dependent in order to improve the accuracy and simplify the determination of the CO2 savings. |
| --- | --- |

(6)

For the purpose of demonstrating the CO2 savings, component testing should be possible in those cases where the savings are not vehicle dependent in order to improve the accuracy and simplify the determination of the CO2 savings.

| (7) | In order to simplify the certification of CO2 savings, it should be possible for the applicant to propose, in addition to a detailed testing methodology for determining the savings, a simplified evaluation method or pre-defined CO2 savings in the application for the approval of an innovative technology as an eco-innovation. Where such simplified methods or pre-defined CO2 savings are used, the savings certified by approval authorities should be determined in a conservative way reflecting the lowest level of savings demonstrated. |
| --- | --- |

(7)

In order to simplify the certification of CO2 savings, it should be possible for the applicant to propose, in addition to a detailed testing methodology for determining the savings, a simplified evaluation method or pre-defined CO2 savings in the application for the approval of an innovative technology as an eco-innovation. Where such simplified methods or pre-defined CO2 savings are used, the savings certified by approval authorities should be determined in a conservative way reflecting the lowest level of savings demonstrated.

| (8) | A technology that has already for some time been widely available on the market cannot be considered innovative within the meaning of Article 12 of Regulation (EC) No 443/2009 and should not be eligible as an eco-innovation. In order to create the right incentives, it is therefore appropriate to replace the 2009 reference year by a dynamic reference year as a baseline for determining the innovativeness of a technology. The new dynamic reference year should apply for applications submitted from 1 January 2020. |
| --- | --- |

(8)

A technology that has already for some time been widely available on the market cannot be considered innovative within the meaning of Article 12 of Regulation (EC) No 443/2009 and should not be eligible as an eco-innovation. In order to create the right incentives, it is therefore appropriate to replace the 2009 reference year by a dynamic reference year as a baseline for determining the innovativeness of a technology. The new dynamic reference year should apply for applications submitted from 1 January 2020.

| (9) | Where the Commission finds, based on the experience gained from assessing a number of innovative technologies with the same characteristics, that it has been satisfactorily and conclusively demonstrated that such technologies meet the eligibility criteria referred to in Article 12 of Regulation (EC) No 443/2009, or in the case an innovative technology is not dependent on manufacturer specific vehicle parameters, it should be possible to approve the innovative technology as an eco-innovation by a decision which provides all manufacturers with the possibility to certify CO2 savings by reference to that decision provided that the conditions of the decision are met. |
| --- | --- |

(9)

Where the Commission finds, based on the experience gained from assessing a number of innovative technologies with the same characteristics, that it has been satisfactorily and conclusively demonstrated that such technologies meet the eligibility criteria referred to in Article 12 of Regulation (EC) No 443/2009, or in the case an innovative technology is not dependent on manufacturer specific vehicle parameters, it should be possible to approve the innovative technology as an eco-innovation by a decision which provides all manufacturers with the possibility to certify CO2 savings by reference to that decision provided that the conditions of the decision are met.

| (10) | Some innovative technologies require strong statistical evidence to support the assumptions given in the application for the approval of an innovative technology as an eco-innovation and the parameters proposed in the testing methodology. In order to have the widest possible data sets, it should be possible for a group of manufacturers or suppliers to apply together. Where that is the case, the group should have the possibility to submit an application including several verification reports, where that is necessary for confidentiality or competition reasons. |
| --- | --- |

(10)

Some innovative technologies require strong statistical evidence to support the assumptions given in the application for the approval of an innovative technology as an eco-innovation and the parameters proposed in the testing methodology. In order to have the widest possible data sets, it should be possible for a group of manufacturers or suppliers to apply together. Where that is the case, the group should have the possibility to submit an application including several verification reports, where that is necessary for confidentiality or competition reasons.

| (11) | For the purpose of ensuring that the certified CO2 savings that are used by manufacturers for target compliance purposes are correct, the Commission should be in a position to react swiftly and notify manufacturers where it detects or is informed of any deviations or inconsistences in the testing methodology or the innovative technology which could affect the level of the certified savings. |
| --- | --- |

(11)

For the purpose of ensuring that the certified CO2 savings that are used by manufacturers for target compliance purposes are correct, the Commission should be in a position to react swiftly and notify manufacturers where it detects or is informed of any deviations or inconsistences in the testing methodology or the innovative technology which could affect the level of the certified savings.

| (12) | Experience shows that it may be necessary to adjust the testing methodologies set out in the decisions approving an eco-innovation, inter alia, to take into account technical developments, or to extend the scope of the approval decision to a wider range of vehicles. It should therefore be possible for both the original applicant and for the Commission to initiate an amendment of those decisions. |
| --- | --- |

(12)

Experience shows that it may be necessary to adjust the testing methodologies set out in the decisions approving an eco-innovation, inter alia, to take into account technical developments, or to extend the scope of the approval decision to a wider range of vehicles. It should therefore be possible for both the original applicant and for the Commission to initiate an amendment of those decisions.

| (13) | Implementing Regulation (EU) No 725/2011 should therefore be amended accordingly. |
| --- | --- |

(13)

Implementing Regulation (EU) No 725/2011 should therefore be amended accordingly.

| (14) | The measures provided for in this Regulation are in accordance with the opinion of the Climate Change Committee, |
| --- | --- |

(14)

The measures provided for in this Regulation are in accordance with the opinion of the Climate Change Committee,

HAS ADOPTED THIS REGULATION:

Article 1

Implementing Regulation (EU) No 725/2011 is amended as follows:

| (1) | Article 2 is amended as follows:






  (a) | in paragraph 2, the first sentence is replaced by the following:
  ‘An application for the approval of an innovative technology as an eco-innovation may be made under this Regulation in respect of a technology, provided that the following conditions are met:’; |
| --- | --- | --- |

(1)

Article 2 is amended as follows:

(a)

in paragraph 2, the first sentence is replaced by the following:

‘An application for the approval of an innovative technology as an eco-innovation may be made under this Regulation in respect of a technology, provided that the following conditions are met:’;

| (b) | in paragraph 2, point (a) is replaced by the following:






  ‘(a) | it had been fitted in 3 % or less of all new passenger cars registered in 2009 for applications submitted until 31 December 2019, or in 3 % or less of all new passenger cars registered in the year n-4, n being the year of application, for applications submitted from 1 January 2020;’; |
| --- | --- | --- |

(b)

in paragraph 2, point (a) is replaced by the following:

‘(a)

| (c) | the following paragraph 3 is added:

  ‘3.   An application for the approval of an innovative technology as an eco-innovation may be made by reference to the standard test procedure in accordance with the following:






  (a) | to the New European Driving Cycle referred to in Annex XII to Regulation (EC) No 692/2008 until 31 December 2019; |
| --- | --- | --- |

(c)

the following paragraph 3 is added:

‘3.   An application for the approval of an innovative technology as an eco-innovation may be made by reference to the standard test procedure in accordance with the following:

(a)

to the New European Driving Cycle referred to in Annex XII to Regulation (EC) No 692/2008 until 31 December 2019;

| (b) | to the Worldwide Harmonised Light Vehicle Test Procedure (WLTP) referred to in Commission Regulation (EU) 2017/1151 (*1) from 14 March 2018. |
| --- | --- |

(b)

to the Worldwide Harmonised Light Vehicle Test Procedure (WLTP) referred to in Commission Regulation (EU) 2017/1151 (*1) from 14 March 2018.

(*1)  Commission Regulation (EU) 2017/1151 of 1 June 2017 supplementing Regulation (EC) No 715/2007 of the European Parliament and of the Council on type-approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information, amending Directive 2007/46/EC of the European Parliament and of the Council, Commission Regulation (EC) No 692/2008 and Commission Regulation (EU) No 1230/2012 and repealing Commission Regulation (EC) No 692/2008 (OJ L 175, 7.7.2017, p. 1).’;"

*1

| (2) | Article 3 is amended as follows:






  (i) | point (c) is replaced by the following:






  ‘(c) | “applicant” means the manufacturer or supplier, or a group of manufacturers or suppliers, submitting an application for the approval of an innovative technology as an eco-innovation;’; |
| --- | --- | --- | --- |

(2)

Article 3 is amended as follows:

(i)

point (c) is replaced by the following:

‘(c)

“applicant” means the manufacturer or supplier, or a group of manufacturers or suppliers, submitting an application for the approval of an innovative technology as an eco-innovation;’;

| (ii) | the following point (f) is added:






  ‘(f) | “requester” means a manufacturer or supplier or a group of manufacturers or suppliers that requests the amendment of a decision approving an innovative technology as an eco-innovation.’; |
| --- | --- | --- |

(ii)

the following point (f) is added:

‘(f)

“requester” means a manufacturer or supplier or a group of manufacturers or suppliers that requests the amendment of a decision approving an innovative technology as an eco-innovation.’;

| (3) | Article 4 is amended as follows:






  (a) | the title is replaced by the following:
  ‘Article 4
  Application for the approval of an innovative technology as an eco-innovation’; |
| --- | --- | --- |

(3)

Article 4 is amended as follows:

(a)

the title is replaced by the following:

‘Article 4

Application for the approval of an innovative technology as an eco-innovation’;

| (b) | paragraph 2 is amended as follows:






  (i) | the introductory sentence is replaced by the following:
  ‘An application for the approval of an innovative technology as an eco-innovation shall include the following:’; |
| --- | --- | --- |

(b)

paragraph 2 is amended as follows:

(i)

the introductory sentence is replaced by the following:

‘An application for the approval of an innovative technology as an eco-innovation shall include the following:’;

| (ii) | point (e) is replaced by the following:






  ‘(e) | a methodology to be used for demonstrating the CO2 emissions reductions of the innovative technology, including a reference to the applicable standard test procedure in accordance with Article 2(3), or where such methodology has already been approved by the Commission, a reference to the approved methodology;’; |
| --- | --- | --- |

(ii)

point (e) is replaced by the following:

‘(e)

a methodology to be used for demonstrating the CO2

| (iii) | the following point (ea) is inserted:






  ‘(ea) | where appropriate, and in addition to the methodology referred to in point (e), a simplified method for evaluating the CO2 savings to be certified or pre-defined CO2 savings values to be used for the purpose of certification of all vehicles fitted with the innovative technology;’; |
| --- | --- | --- |

(iii)

the following point (ea) is inserted:

‘(ea)

where appropriate, and in addition to the methodology referred to in point (e), a simplified method for evaluating the CO2

2

| (iv) | in point (f) points (i) and (ii) are replaced by the following:






  ‘(i) | the emissions reduction achieved by the innovative technology as determined in accordance with points (e) and, where applicable, (ea) meets the relevant threshold specified in Article 9(1), taking into account any deterioration over time of the technology; |
| --- | --- | --- |

(iv)

in point (f) points (i) and (ii) are replaced by the following:

‘(i)

the emissions reduction achieved by the innovative technology as determined in accordance with points (e) and, where applicable, (ea) meets the relevant threshold specified in Article 9(1), taking into account any deterioration over time of the technology;

| (ii) | the CO2 savings of the innovative technology are not or only partially covered by the standard test procedure CO2 measurement as referred to in point (c) of Article 12(2) of Regulation (EC) No 443/2009 and as specified in Article 2(3) of this Regulation;’; |
| --- | --- |

(ii)

the CO2 savings of the innovative technology are not or only partially covered by the standard test procedure CO2 measurement as referred to in point (c) of Article 12(2) of Regulation (EC) No 443/2009 and as specified in Article 2(3) of this Regulation;’;

2

2

| (v) | the following point (iv) is added:






  ‘(iv) | the CO2 reduction value to be attributed to a vehicle at the moment of certification using the simplified evaluation method or by way of pre-defined CO2 savings values as referred to in point (ea), is lower or equal to the emissions reduction achieved by the innovative technology as determined using the testing methodology referred to in point (e), including any possible interactions with other approved eco-innovations.’; |
| --- | --- | --- |

(v)

the following point (iv) is added:

‘(iv)

the CO2

2

| (4) | Article 5 is amended as follows:






  (a) | the title is replaced by the following:
  ‘Article 5
  Baseline and eco-innovation’; |
| --- | --- | --- |

(4)

Article 5 is amended as follows:

(a)

the title is replaced by the following:

‘Article 5

Baseline and eco-innovation’;

| (b) | in paragraph 1, points (a) and (b) are replaced by the following:






  ‘(a) | an eco-innovation vehicle that shall be fitted with the innovative technology, or, where appropriate, the innovative technology as a stand-alone component; |
| --- | --- | --- |

(b)

in paragraph 1, points (a) and (b) are replaced by the following:

‘(a)

an eco-innovation vehicle that shall be fitted with the innovative technology, or, where appropriate, the innovative technology as a stand-alone component;

| (b) | a baseline vehicle that shall not be fitted with the innovative technology but that is in all other aspects identical to the eco-innovation vehicle, or, where appropriate, a baseline technology as a stand-alone component.’; |
| --- | --- |

(b)

a baseline vehicle that shall not be fitted with the innovative technology but that is in all other aspects identical to the eco-innovation vehicle, or, where appropriate, a baseline technology as a stand-alone component.’;

| (c) | paragraph 2 is replaced by the following:

  ‘2.   If the applicant considers that the information referred to in Articles 8 and 9 can be demonstrated by other means than those referred to in paragraph 1, the application for the approval of an innovative technology as an eco-innovation shall include the necessary details justifying that conclusion and a methodology providing equivalent results.’; |
| --- | --- |

(c)

paragraph 2 is replaced by the following:

‘2.   If the applicant considers that the information referred to in Articles 8 and 9 can be demonstrated by other means than those referred to in paragraph 1, the application for the approval of an innovative technology as an eco-innovation shall include the necessary details justifying that conclusion and a methodology providing equivalent results.’;

| (d) | the following paragraph 3 is added:

  ‘3.   Where the application for the approval of an innovative technology as an eco-innovation is made by reference to the WLTP as referred to in Article 2(3)(b), the baseline vehicle shall be the vehicle within the interpolation family which represents the worst case for the purpose of demonstrating the eco-innovation savings.
  In the case referred to in the second subparagraph of point 1.2.3.1 of sub-Annex 6 to Annex XXI to Regulation (EU) 2017/1151, the baseline vehicle shall be the test vehicle H.
  The choice of baseline vehicle shall be supported by strong and independent statistical evidence on the basis of which verifiable assumptions about the appropriateness and representativeness of the baseline vehicle can be made.’; |
| --- | --- |

(d)

the following paragraph 3 is added:

‘3.   Where the application for the approval of an innovative technology as an eco-innovation is made by reference to the WLTP as referred to in Article 2(3)(b), the baseline vehicle shall be the vehicle within the interpolation family which represents the worst case for the purpose of demonstrating the eco-innovation savings.

In the case referred to in the second subparagraph of point 1.2.3.1 of sub-Annex 6 to Annex XXI to Regulation (EU) 2017/1151, the baseline vehicle shall be the test vehicle H.

The choice of baseline vehicle shall be supported by strong and independent statistical evidence on the basis of which verifiable assumptions about the appropriateness and representativeness of the baseline vehicle can be made.’;

| (5) | Article 7 is amended as follows:






  (a) | the following paragraph 1a is added:

  ‘1a.   Where the applicant is a group of manufacturers or suppliers, the following conditions apply:






  (a) | the independent and certified body shall carry out the verifications referred to in points (a) to (e) of paragraph 2 in relation to each member of the applicant group, where relevant, depending on the content of the application for the approval of an innovative technology as an eco-innovation; |
| --- | --- | --- | --- |

(5)

Article 7 is amended as follows:

(a)

the following paragraph 1a is added:

‘1a.   Where the applicant is a group of manufacturers or suppliers, the following conditions apply:

(a)

the independent and certified body shall carry out the verifications referred to in points (a) to (e) of paragraph 2 in relation to each member of the applicant group, where relevant, depending on the content of the application for the approval of an innovative technology as an eco-innovation;

| (b) | where appropriate for confidentiality or competition reasons, several verification reports may be provided by the members of the applicant group for different sets of data supporting the same application.’; |
| --- | --- |

(b)

where appropriate for confidentiality or competition reasons, several verification reports may be provided by the members of the applicant group for different sets of data supporting the same application.’;

| (b) | paragraph 2 is amended as follows:






  (i) | the following point (ca) is inserted:






  ‘(ca) | verify, in the case of point (ea) of Article 4(2), that the simplified evaluation method or the pre-defined CO2 savings values referred to in that point are appropriate for certifying the CO2 savings for the relevant vehicles referred to in point (d) of Article 4(2), and meet the minimum requirements specified in Article 4[2][f](iv);’; |
| --- | --- | --- | --- |

(b)

paragraph 2 is amended as follows:

(i)

the following point (ca) is inserted:

‘(ca)

verify, in the case of point (ea) of Article 4(2), that the simplified evaluation method or the pre-defined CO2

2

| (ii) | the following subparagraph is added:
  ‘For the purpose of points (c) and (ca), the independent and certified body shall provide the testing protocols established for the verification.’; |
| --- | --- |

(ii)

the following subparagraph is added:

‘For the purpose of points (c) and (ca), the independent and certified body shall provide the testing protocols established for the verification.’;

| (c) | in paragraph 3, the first subparagraph is replaced by the following:
  ‘For the purposes of the certification of the CO2 savings in accordance with Article 11, the independent and certified body shall, at the request of the manufacturer, draw up a report on the interaction between several eco-innovations fitted to one vehicle type, variant, version or, where applicable, interpolation family.’; |
| --- | --- |

(c)

in paragraph 3, the first subparagraph is replaced by the following:

‘For the purposes of the certification of the CO2 savings in accordance with Article 11, the independent and certified body shall, at the request of the manufacturer, draw up a report on the interaction between several eco-innovations fitted to one vehicle type, variant, version or, where applicable, interpolation family.’;

2

| (6) | Article 8 is amended as follows:






  (a) | in paragraph 1, points (a) and (b) are replaced by the following:






  ‘(a) | the CO2 emissions from the baseline vehicle and from the eco-innovation vehicle with the innovative technology in operation resulting from the application of the methodology referred to in point (e) of Article 4(2) and, where appropriate, the application of the simplified evaluation method referred to in point (ea) of that Article; |
| --- | --- | --- | --- |

(6)

Article 8 is amended as follows:

(a)

in paragraph 1, points (a) and (b) are replaced by the following:

‘(a)

the CO2 emissions from the baseline vehicle and from the eco-innovation vehicle with the innovative technology in operation resulting from the application of the methodology referred to in point (e) of Article 4(2) and, where appropriate, the application of the simplified evaluation method referred to in point (ea) of that Article;

2

| (b) | the CO2 emissions from the baseline vehicle and from the eco-innovation vehicle with the innovative technology in operation resulting from the application of the standard test procedure as specified in accordance with Article 2(3)(a) or (b).’; |
| --- | --- |

(b)

the CO2 emissions from the baseline vehicle and from the eco-innovation vehicle with the innovative technology in operation resulting from the application of the standard test procedure as specified in accordance with Article 2(3)(a) or (b).’;

2

| (b) | in paragraph 2, the following subparagraph is added:
  ‘In the case of applications for the approval of an innovative technology as an eco-innovation made by reference to Article 2(3)(b), the uncertainty shall be assessed and quantified for the purpose of determining the savings. The quantified uncertainty shall be subtracted from the total savings.’; |
| --- | --- |

(b)

in paragraph 2, the following subparagraph is added:

‘In the case of applications for the approval of an innovative technology as an eco-innovation made by reference to Article 2(3)(b), the uncertainty shall be assessed and quantified for the purpose of determining the savings. The quantified uncertainty shall be subtracted from the total savings.’;

| (c) | the following paragraph 3 is added:

  ‘3.   In the case of pre-defined CO2 savings values proposed in accordance with Article 4(2)(ea), those values shall be set at a level that is lower or equal to the total savings determined in accordance with paragraph 2.’; |
| --- | --- |

(c)

the following paragraph 3 is added:

‘3.   In the case of pre-defined CO2 savings values proposed in accordance with Article 4(2)(ea), those values shall be set at a level that is lower or equal to the total savings determined in accordance with paragraph 2.’;

| (7) | Article 9 is amended as follows:






  (a) | paragraph 1 is replaced by the following:

  ‘1.   The minimum reduction to be achieved in accordance with Article 8(2) by the innovative technology shall be:






  (a) | 1 g CO2/km in the case of applications made by reference to Article 2(3)(a); |
| --- | --- | --- | --- |

(7)

Article 9 is amended as follows:

(a)

paragraph 1 is replaced by the following:

‘1.   The minimum reduction to be achieved in accordance with Article 8(2) by the innovative technology shall be:

(a)

1 g CO2/km in the case of applications made by reference to Article 2(3)(a);

| (b) | 0,5 g CO2/km in the case of applications made by reference to Article 2(3)(b)’; |
| --- | --- |

(b)

0,5 g CO2/km in the case of applications made by reference to Article 2(3)(b)’;

| (b) | in paragraph 2, the wording ‘standard test cycle’ is replaced by ‘standard test procedure’; |
| --- | --- |

(b)

in paragraph 2, the wording ‘standard test cycle’ is replaced by ‘standard test procedure’;

| (8) | the title of Article 10 is replaced by the following:
  ‘Article 10
  Assessment of an application for the approval of an innovative technology as an eco-innovation’; |
| --- | --- |

(8)

the title of Article 10 is replaced by the following:

‘Article 10

Assessment of an application for the approval of an innovative technology as an eco-innovation’;

| (9) | Article 11 is amended as follows:






  (a) | paragraph 2 is replaced by the following:

  ‘2.   The certified CO2 savings of the eco-innovation demonstrated in accordance with the corresponding decision to approve the innovative technology as an eco-innovation shall be specified separately in both the type approval documentation and the certificate of conformity in accordance with Directive 2007/46/EC, on the basis of tests carried out by technical services in accordance with Article 11 of that Directive, using the approved testing methodology.
  Subject to the requirements of the approval decision, the quantified uncertainty referred to in Article 8(2) shall be subtracted from the total savings to be certified. Where the CO2 savings of an eco-innovation for a specific type, variant, version and, where appropriate, interpolation family are below the relevant threshold specified in Article 9(1), the savings shall not be certified.
  In the case pre-defined CO2 savings determined in accordance with Article 4(2)(ea) are specified in the approval decision, the relevant pre-defined savings value may be entered directly into the type approval documentation, provided that the approval authority is in a position to confirm that the vehicle is fitted with the technology in accordance with the specifications of the approval decision.’; |
| --- | --- | --- |

(9)

Article 11 is amended as follows:

(a)

paragraph 2 is replaced by the following:

‘2.   The certified CO2 savings of the eco-innovation demonstrated in accordance with the corresponding decision to approve the innovative technology as an eco-innovation shall be specified separately in both the type approval documentation and the certificate of conformity in accordance with Directive 2007/46/EC, on the basis of tests carried out by technical services in accordance with Article 11 of that Directive, using the approved testing methodology.

Subject to the requirements of the approval decision, the quantified uncertainty referred to in Article 8(2) shall be subtracted from the total savings to be certified. Where the CO2 savings of an eco-innovation for a specific type, variant, version and, where appropriate, interpolation family are below the relevant threshold specified in Article 9(1), the savings shall not be certified.

In the case pre-defined CO2 savings determined in accordance with Article 4(2)(ea) are specified in the approval decision, the relevant pre-defined savings value may be entered directly into the type approval documentation, provided that the approval authority is in a position to confirm that the vehicle is fitted with the technology in accordance with the specifications of the approval decision.’;

| (b) | in the second subparagraph of paragraph 4, the value ‘1 g CO2/km’ is replaced by ‘0,5 g CO2/km’; |
| --- | --- |

(b)

in the second subparagraph of paragraph 4, the value ‘1 g CO2/km’ is replaced by ‘0,5 g CO2/km’;

2

2

| (10) | Article 12 is amended as follows:






  (a) | in paragraph 1, after the second subparagraph, the following subparagraph is inserted:
  ‘The Commission may also, where it finds or is informed of deviations or inconsistences in the testing methodology or in the innovative technology in comparison to the information it had received as part of the application for the approval of the innovative technology as an eco-innovation, notify this to the manufacturer.’; |
| --- | --- | --- |

(10)

Article 12 is amended as follows:

(a)

in paragraph 1, after the second subparagraph, the following subparagraph is inserted:

‘The Commission may also, where it finds or is informed of deviations or inconsistences in the testing methodology or in the innovative technology in comparison to the information it had received as part of the application for the approval of the innovative technology as an eco-innovation, notify this to the manufacturer.’;

| (b) | paragraph 3 is replaced by the following:

  ‘3.   A manufacturer for which the certified CO2 savings are no longer taken into account may apply for a new certification of the vehicles concerned in accordance with the procedure laid down in Article 11, or may, where appropriate, make a request for an amendment of the approval decision in accordance with Article 12a, which shall be supported by such evidence that is required to confirm the appropriateness of the testing methodology and the level of CO2 savings achieved by the innovative technology.’; |
| --- | --- |

(b)

paragraph 3 is replaced by the following:

‘3.   A manufacturer for which the certified CO2 savings are no longer taken into account may apply for a new certification of the vehicles concerned in accordance with the procedure laid down in Article 11, or may, where appropriate, make a request for an amendment of the approval decision in accordance with Article 12a, which shall be supported by such evidence that is required to confirm the appropriateness of the testing methodology and the level of CO2 savings achieved by the innovative technology.’;

| (11) | the following Article 12a is inserted:

  ‘Article 12a
  Amendment of a decision to approve an innovative technology as an eco-innovation

  1.   A manufacturer or supplier, including the original applicant, may submit to the Commission a request for an existing approval decision to be amended. The request and all supporting documentation shall also be submitted by electronic mail or electronic data carrier or uploaded to a server managed by the Commission. The written request shall list the supporting documentation.


  2.   The following information and evidence shall be provided together with the request for amendment:






  (a) | contact details of the requester; |
| --- | --- | --- |

(11)

the following Article 12a is inserted:

‘Article 12a

Amendment of a decision to approve an innovative technology as an eco-innovation

1.   A manufacturer or supplier, including the original applicant, may submit to the Commission a request for an existing approval decision to be amended. The request and all supporting documentation shall also be submitted by electronic mail or electronic data carrier or uploaded to a server managed by the Commission. The written request shall list the supporting documentation.

2.   The following information and evidence shall be provided together with the request for amendment:

(a)

contact details of the requester;

| (b) | the reference to the approval decision to be amended; |
| --- | --- |

(b)

the reference to the approval decision to be amended;

| (c) | a description of the amendments proposed including a summary of that description; |
| --- | --- |

(c)

a description of the amendments proposed including a summary of that description;

| (d) | evidence demonstrating the necessity and the appropriateness of the amendments; |
| --- | --- |

(d)

evidence demonstrating the necessity and the appropriateness of the amendments;

| (e) | evidence demonstrating that emissions reduction achieved by the innovative technology as determined using the amended testing methodology, or where appropriate, the new or amended simplified evaluation method or pre-defined CO2 savings, meets the relevant threshold specified in article 9(1), taking into account any deterioration over time of the technology; |
| --- | --- |

(e)

evidence demonstrating that emissions reduction achieved by the innovative technology as determined using the amended testing methodology, or where appropriate, the new or amended simplified evaluation method or pre-defined CO2 savings, meets the relevant threshold specified in article 9(1), taking into account any deterioration over time of the technology;

| (f) | a specific validation report established by an independent and certified body that verifies the following:






  (i) | the amended testing methodology meets the requirements set out in Article 6(1) and, where applicable, the requirements set out in Article 4(2)(f)(iv); |
| --- | --- | --- |

(f)

a specific validation report established by an independent and certified body that verifies the following:

(i)

the amended testing methodology meets the requirements set out in Article 6(1) and, where applicable, the requirements set out in Article 4(2)(f)(iv);

| (ii) | the emissions reduction achieved by the innovative technology as determined using the amended testing methodology or, where appropriate, the new or amended simplified evaluation method or pre-defined CO2 savings, meets the relevant threshold specified in Article 9(1), taking into account any deterioration over time of the technology. |
| --- | --- |

(ii)

the emissions reduction achieved by the innovative technology as determined using the amended testing methodology or, where appropriate, the new or amended simplified evaluation method or pre-defined CO2 savings, meets the relevant threshold specified in Article 9(1), taking into account any deterioration over time of the technology.

3.   On receipt of the request for the amendment, the Commission shall make public the summary description of the amendments proposed referred to in point 2(c).

4.   The Commission shall assess the request for amendment and, within nine months from receipt of a complete request, it shall amend the approval decision, unless objections are raised in respect of the appropriateness of the proposed amendments.

The amended approval decision shall, where necessary, specify its applicability and the information required for the certification of the CO2 savings in accordance with Article 11 of this Regulation, subject to the application of the exceptions to the right to public access to documents specified in Regulation (EC) No 1049/2001.

5.   The Commission may require adjustments to the proposed amendments. The Commission shall in that case consult the requester as well as other relevant stakeholders, including the original applicant for the approval of the innovative technology as an eco-innovation, on the proposed amendments and, where appropriate, take account of the comments received.

6.   The assessment period may be extended by five months where the Commission finds that, because of the complexity of the innovative technology and the accompanying amended testing methodology or because of the size and contents of the request for amendment, the request cannot be appropriately assessed within the nine months assessment period.

The Commission shall within 40 days of receipt of the request notify the requester if the assessment period is to be extended.

7.   The Commission may at any time amend an approval decision on its own initiative, in particular to take into account technical progress. The Commission shall consult the original applicant for approval of the innovative technology as an eco-innovation and other relevant stakeholders on the amendments it considers and, where appropriate, take account of the comments received.’;

| (12) | Article 14 is deleted. |
| --- | --- |

(12)

Article 14 is deleted.

Article 2

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 21 February 2018.

For the Commission

The President

Jean-Claude JUNCKER

---

(1)  
  OJ L 140, 5.6.2009, p. 1.

1

(2)  Commission Regulation (EU) 2017/1151 of 1 June 2017 supplementing Regulation (EC) No 715/2007 of the European Parliament and of the Council on type-approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information, amending Directive 2007/46/EC of the European Parliament and of the Council, Commission Regulation (EC) No 692/2008 and Commission Regulation (EU) No 1230/2012 and repealing Commission Regulation (EC) No 692/2008 (OJ L 175, 7.7.2017, p. 1).

2

(3)  Commission Regulation (EC) No 692/2008 of 18 July 2008 implementing and amending Regulation (EC) No 715/2007 of the European Parliament and of the Council on type-approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information (OJ L 199, 28.7.2008, p. 1).

3

(4)  Commission Implementing Regulation (EU) 2017/1153 of 2 June 2017 setting out a methodology for determining the correlation parameters necessary for reflecting the change in the regulatory test procedure and amending Regulation (EU) No 1014/2010 (OJ L 175, 7.7 2017, p. 679).

4

(5)  Commission Implementing Regulation (EU) No 725/2011 of 26 July 2011 establishing a procedure for the approval and certification of innovative technologies for reducing CO2 emissions from passenger cars pursuant to Regulation (EC) No 443/2009 of the European Parliament and of the Council (OJ L 194, 26.7.2011, p. 19).

5

2

---

| 22.2.2018 | EN | Official Journal of the European Union | L 49/9 |
| --- | --- | --- | --- |

22.2.2018

EN

Official Journal of the European Union

L 49/9

---

COMMISSION IMPLEMENTING REGULATION (EU) 2018/259

of 21 February 2018

amending Implementing Regulation (EU) No 427/2014 for the purpose of adjusting it to the change in the regulatory test procedure and simplifying the administrative procedures for application and certification

(Text with EEA relevance)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Regulation (EU) No 510/2011 of the European Parliament and of the Council of 11 May 2011 setting emission performance standards for new light commercial vehicles as part of the Union's integrated approach to reduce CO2 emissions from light-duty vehicles (1), and in particular Article 12(2) thereof,

Whereas:

| (1) | The Worldwide Harmonised Light Vehicle Test Procedure (WLTP) set out in Commission Regulation (EU) 2017/1151 (2) was adopted by the Commission on 1 June 2017. The WLTP replaces the New European Driving Cycle (NEDC) set out in Annex XII to Commission Regulation (EC) No 692/2008 (3). From 2021, compliance with the CO2 emissions targets set out in Regulation (EU) No 510/2011 are to be verified on the basis of CO2 emissions determined in accordance with the WLTP. From that date, also eco-innovation CO2 savings should be determined by reference to the WLTP. |
| --- | --- |

(1)

The Worldwide Harmonised Light Vehicle Test Procedure (WLTP) set out in Commission Regulation (EU) 2017/1151 (2) was adopted by the Commission on 1 June 2017. The WLTP replaces the New European Driving Cycle (NEDC) set out in Annex XII to Commission Regulation (EC) No 692/2008 (3). From 2021, compliance with the CO2 emissions targets set out in Regulation (EU) No 510/2011 are to be verified on the basis of CO2 emissions determined in accordance with the WLTP. From that date, also eco-innovation CO2 savings should be determined by reference to the WLTP.

| (2) | To reflect the change in the regulatory test procedure and taking into account the procedure to correlate the WLTP CO2 values into the corresponding NEDC CO2 values set out in Commission Implementing Regulation (EU) 2017/1153 (4), it is necessary to amend Commission Implementing Regulation (EU) No 427/2014 (5). |
| --- | --- |

(2)

To reflect the change in the regulatory test procedure and taking into account the procedure to correlate the WLTP CO2 values into the corresponding NEDC CO2 values set out in Commission Implementing Regulation (EU) 2017/1153 (4), it is necessary to amend Commission Implementing Regulation (EU) No 427/2014 (5).

| (3) | To ensure a smooth transition from the NEDC to the WLTP, it should be possible to submit an application for the approval of an innovative technology as an eco-innovation by reference to the NEDC until 31 December 2019, and to the WLTP from the entry into force of this Regulation. |
| --- | --- |

(3)

To ensure a smooth transition from the NEDC to the WLTP, it should be possible to submit an application for the approval of an innovative technology as an eco-innovation by reference to the NEDC until 31 December 2019, and to the WLTP from the entry into force of this Regulation.

| (4) | While the Commission has granted more than 20 approvals of eco-innovations, the deployment by manufacturers of those technologies in the European Union vehicle fleet has until 2017 been quite limited. In order to promote a more extensive deployment of those technologies and obtain the highest potential for reducing CO2 emissions from light commercial vehicles, the approval and certification process should be simplified. |
| --- | --- |

(4)

While the Commission has granted more than 20 approvals of eco-innovations, the deployment by manufacturers of those technologies in the European Union vehicle fleet has until 2017 been quite limited. In order to promote a more extensive deployment of those technologies and obtain the highest potential for reducing CO2 emissions from light commercial vehicles, the approval and certification process should be simplified.

| (5) | Lowering the savings threshold to 0,5 g CO2/km is likely to promote a wider deployment of innovative technologies capable of reducing CO2 emissions. However, in order to ensure that those CO2 savings are actually achieved, it is essential that they are determined very accurately. It is therefore necessary to assess and quantify the uncertainty that is linked to the methods used for demonstrating the savings and to take that uncertainty into account when the CO2 savings are certified by the approval authority. It is appropriate to align the change of the savings threshold with the introduction of the WLTP, and as a consequence the new threshold should apply for the purpose of applications made by reference to the WLTP. |
| --- | --- |

(5)

Lowering the savings threshold to 0,5 g CO2/km is likely to promote a wider deployment of innovative technologies capable of reducing CO2 emissions. However, in order to ensure that those CO2 savings are actually achieved, it is essential that they are determined very accurately. It is therefore necessary to assess and quantify the uncertainty that is linked to the methods used for demonstrating the savings and to take that uncertainty into account when the CO2 savings are certified by the approval authority. It is appropriate to align the change of the savings threshold with the introduction of the WLTP, and as a consequence the new threshold should apply for the purpose of applications made by reference to the WLTP.

| (6) | For the purpose of demonstrating the CO2 savings, component testing should be possible in those cases where the savings are not vehicle-dependent in order to improve the accuracy and simplify the determination of the CO2 savings. |
| --- | --- |

(6)

For the purpose of demonstrating the CO2 savings, component testing should be possible in those cases where the savings are not vehicle-dependent in order to improve the accuracy and simplify the determination of the CO2 savings.

| (7) | In order to simplify the certification of CO2 savings, it should be possible for the applicant to propose, in addition to a detailed testing methodology for determining the savings, a simplified evaluation method or predefined CO2 savings in the application for the approval of an innovative technology as an eco-innovation. Where such simplified methods or predefined CO2 savings are used, the savings certified by approval authorities should be determined in a conservative way reflecting the lowest level of savings demonstrated. |
| --- | --- |

(7)

In order to simplify the certification of CO2 savings, it should be possible for the applicant to propose, in addition to a detailed testing methodology for determining the savings, a simplified evaluation method or predefined CO2 savings in the application for the approval of an innovative technology as an eco-innovation. Where such simplified methods or predefined CO2 savings are used, the savings certified by approval authorities should be determined in a conservative way reflecting the lowest level of savings demonstrated.

| (8) | A technology that has already for some time been widely available on the market cannot be considered innovative within the meaning of Article 12 of Regulation (EU) No 510/2011 and should not be eligible as an eco-innovation. In order to create the right incentives, it is therefore appropriate to replace the 2009 reference year by a dynamic reference year as a baseline for determining the innovativeness of a technology. The new dynamic reference year should apply for applications submitted from 1 January 2020. |
| --- | --- |

(8)

A technology that has already for some time been widely available on the market cannot be considered innovative within the meaning of Article 12 of Regulation (EU) No 510/2011 and should not be eligible as an eco-innovation. In order to create the right incentives, it is therefore appropriate to replace the 2009 reference year by a dynamic reference year as a baseline for determining the innovativeness of a technology. The new dynamic reference year should apply for applications submitted from 1 January 2020.

| (9) | Where the Commission finds, based on the experience gained from assessing a number of innovative technologies with the same characteristics, that it has been satisfactorily and conclusively demonstrated that such technologies meet the eligibility criteria referred to in Article 12 of Regulation (EU) No 510/2011, or in the case an innovative technology is not dependent on manufacturer specific vehicle parameters, it should be possible to approve the innovative technology as an eco-innovation by a decision which provides all manufacturers with the possibility to certify CO2 savings by reference to that decision provided that the conditions of the decision are met. |
| --- | --- |

(9)

Where the Commission finds, based on the experience gained from assessing a number of innovative technologies with the same characteristics, that it has been satisfactorily and conclusively demonstrated that such technologies meet the eligibility criteria referred to in Article 12 of Regulation (EU) No 510/2011, or in the case an innovative technology is not dependent on manufacturer specific vehicle parameters, it should be possible to approve the innovative technology as an eco-innovation by a decision which provides all manufacturers with the possibility to certify CO2 savings by reference to that decision provided that the conditions of the decision are met.

| (10) | Some innovative technologies require strong statistical evidence to support the assumptions given in the application for the approval of an innovative technology as an eco-innovation and the parameters proposed in the testing methodology. In order to have the widest possible data sets, it should be possible for a group of manufacturers or suppliers to apply together. Where that is the case, the group should have the possibility to submit an application including several verification reports, where that is necessary for confidentiality or competition reasons. |
| --- | --- |

(10)

Some innovative technologies require strong statistical evidence to support the assumptions given in the application for the approval of an innovative technology as an eco-innovation and the parameters proposed in the testing methodology. In order to have the widest possible data sets, it should be possible for a group of manufacturers or suppliers to apply together. Where that is the case, the group should have the possibility to submit an application including several verification reports, where that is necessary for confidentiality or competition reasons.

| (11) | For the purpose of ensuring that the certified CO2 savings that are used by manufacturers for target compliance purposes are correct, the Commission should be in a position to react swiftly and notify manufacturers where it detects or is informed of any deviations or inconsistences in the testing methodology or the innovative technology which could affect the level of the certified savings. |
| --- | --- |

(11)

For the purpose of ensuring that the certified CO2 savings that are used by manufacturers for target compliance purposes are correct, the Commission should be in a position to react swiftly and notify manufacturers where it detects or is informed of any deviations or inconsistences in the testing methodology or the innovative technology which could affect the level of the certified savings.

| (12) | Experience shows that it may be necessary to adjust the testing methodologies set out in the decisions approving an eco-innovation, inter alia, to take into account technical developments, or to extend the scope of the approval decision to a wider range of vehicles. It should therefore be possible for both the original applicant and for the Commission to initiate an amendment of those decisions. |
| --- | --- |

(12)

Experience shows that it may be necessary to adjust the testing methodologies set out in the decisions approving an eco-innovation, inter alia, to take into account technical developments, or to extend the scope of the approval decision to a wider range of vehicles. It should therefore be possible for both the original applicant and for the Commission to initiate an amendment of those decisions.

| (13) | Implementing Regulation (EU) No 427/2014 should therefore be amended accordingly. |
| --- | --- |

(13)

Implementing Regulation (EU) No 427/2014 should therefore be amended accordingly.

| (14) | The measures provided for in this Regulation are in accordance with the opinion of the Climate Change Committee, |
| --- | --- |

(14)

The measures provided for in this Regulation are in accordance with the opinion of the Climate Change Committee,

HAS ADOPTED THIS REGULATION:

Article 1

Implementing Regulation (EU) No 427/2014 is amended as follows:

| (1) | Article 2 is amended as follows:






  (a) | in paragraph 2, the first sentence is replaced by the following:
  ‘An application for the approval of an innovative technology as an eco-innovation may be made under this Regulation in respect of a technology, provided that the following conditions are met:’; |
| --- | --- | --- |

(1)

Article 2 is amended as follows:

(a)

in paragraph 2, the first sentence is replaced by the following:

‘An application for the approval of an innovative technology as an eco-innovation may be made under this Regulation in respect of a technology, provided that the following conditions are met:’;

| (b) | in paragraph 2, point (a) is replaced by the following:






  ‘(a) | it had been fitted in 3 % or less of all new light commercial vehicles registered in 2009 for applications submitted until 31 December 2019, or in 3 % or less of all new light commercial vehicles registered in the year n – 4, n being the year of application, for applications submitted from 1 January 2020;’; |
| --- | --- | --- |

(b)

in paragraph 2, point (a) is replaced by the following:

‘(a)

| (c) | The following paragraph 4 is added:

  ‘4.   An application for the approval of an innovative technology as an eco-innovation may be made by reference to the standard test procedure in accordance with the following:






  (a) | to the New European Driving Cycle referred to in Annex XII to Regulation (EC) No 692/2008 until 31 December 2019; |
| --- | --- | --- |

(c)

The following paragraph 4 is added:

‘4.   An application for the approval of an innovative technology as an eco-innovation may be made by reference to the standard test procedure in accordance with the following:

(a)

to the New European Driving Cycle referred to in Annex XII to Regulation (EC) No 692/2008 until 31 December 2019;

| (b) | to the Worldwide Harmonised Light Vehicle Test Procedure referred to in Commission Regulation (EU) 2017/1151 (*1) from 14 March 2018. |
| --- | --- |

(b)

to the Worldwide Harmonised Light Vehicle Test Procedure referred to in Commission Regulation (EU) 2017/1151 (*1) from 14 March 2018.

(*1)  Commission Regulation (EU) 2017/1151 of 1 June 2017 supplementing Regulation (EC) No 715/2007 of the European Parliament and of the Council on type-approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information, amending Directive 2007/46/EC of the European Parliament and of the Council, Commission Regulation (EC) No 692/2008 and Commission Regulation (EU) No 1230/2012 and repealing Commission Regulation (EC) No 692/2008 (OJ L 175, 7.7.2017, p. 1).’."

*1

| (2) | Article 3 is amended as follows:






  (a) | point (3) is replaced by the following:






  ‘(3) | “applicant” means the manufacturer or supplier, or a group of manufacturers or suppliers, submitting an application for the approval of an innovative technology as an eco-innovation;’ |
| --- | --- | --- | --- |

(2)

Article 3 is amended as follows:

(a)

point (3) is replaced by the following:

‘(3)

“applicant” means the manufacturer or supplier, or a group of manufacturers or suppliers, submitting an application for the approval of an innovative technology as an eco-innovation;’

| (b) | point (6) is replaced by the following:






  ‘(6) | “requester” means a manufacturer or supplier or a group of manufacturers or suppliers that requests the amendment of a decision approving an innovative technology as an eco-innovation.’ |
| --- | --- | --- |

(b)

point (6) is replaced by the following:

‘(6)

“requester” means a manufacturer or supplier or a group of manufacturers or suppliers that requests the amendment of a decision approving an innovative technology as an eco-innovation.’

| (3) | Article 4 is amended as follows:






  (a) | the title is replaced by the following:
  ‘Article 4
  Application for the approval of an innovative technology as an eco-innovation’; |
| --- | --- | --- |

(3)

Article 4 is amended as follows:

(a)

the title is replaced by the following:

‘Article 4

Application for the approval of an innovative technology as an eco-innovation’;

| (b) | paragraph 2 is amended as follows:






  (i) | the introductory sentence is replaced by the following:
  ‘An application for the approval of an innovative technology as an eco-innovation shall include the following:’ |
| --- | --- | --- |

(b)

paragraph 2 is amended as follows:

(i)

the introductory sentence is replaced by the following:

‘An application for the approval of an innovative technology as an eco-innovation shall include the following:’

| (ii) | point (e) is replaced by the following:






  ‘(e) | a methodology to be used for demonstrating the CO2 emission reductions of the innovative technology, including a reference to the applicable standard test procedure in accordance with Article 2(4), or where such methodology has already been approved by the Commission, a reference to the approved methodology;’; |
| --- | --- | --- |

(ii)

point (e) is replaced by the following:

‘(e)

a methodology to be used for demonstrating the CO2

| (iii) | the following point (ea) is inserted:






  ‘(ea) | where appropriate, and in addition to the methodology referred to in point (e), a simplified method for evaluating the CO2 savings to be certified or predefined CO2 savings values to be used for the purpose of certification of all vehicles fitted with the innovative technology;’; |
| --- | --- | --- |

(iii)

the following point (ea) is inserted:

‘(ea)

where appropriate, and in addition to the methodology referred to in point (e), a simplified method for evaluating the CO2

2

| (iv) | in point (f), points (i) and (ii) are replaced by the following:






  ‘(i) | the emissions reduction achieved by the innovative technology as determined in accordance with points (e) and, where applicable, (ea) meets the relevant threshold specified in Article 9(1), taking into account any deterioration over time of the technology; |
| --- | --- | --- |

(iv)

in point (f), points (i) and (ii) are replaced by the following:

‘(i)

the emissions reduction achieved by the innovative technology as determined in accordance with points (e) and, where applicable, (ea) meets the relevant threshold specified in Article 9(1), taking into account any deterioration over time of the technology;

| (ii) | the CO2 savings of the innovative technology are not or only partially covered by the standard test procedure CO2 measurement as referred to in Article 12(2)(c) of Regulation (EU) No 510/2011 and as specified in Article 2(4) of this Regulation;’; |
| --- | --- |

(ii)

the CO2 savings of the innovative technology are not or only partially covered by the standard test procedure CO2 measurement as referred to in Article 12(2)(c) of Regulation (EU) No 510/2011 and as specified in Article 2(4) of this Regulation;’;

2

2

| (v) | in point (f), the following point (iv) is added:






  ‘(iv) | in the case of point (ea) of this Article, the CO2 reduction value to be attributed to a vehicle at the moment of certification using the simplified evaluation method, or by way of predefined CO2 savings values as referred to in point (ea), is lower or equal to the emissions reduction achieved by the innovative technology as determined using the testing methodology referred to in point (e), including any possible interactions with other approved eco-innovations.’. |
| --- | --- | --- |

(v)

in point (f), the following point (iv) is added:

‘(iv)

in the case of point (ea) of this Article, the CO2

2

| (4) | Article 5 is amended as follows:






  (a) | the title is replaced by the following:
  ‘Article 5
  Baseline and eco-innovation’; |
| --- | --- | --- |

(4)

Article 5 is amended as follows:

(a)

the title is replaced by the following:

‘Article 5

Baseline and eco-innovation’;

| (b) | in paragraph 1, points (a) and (b) are replaced by the following:






  ‘(a) | an eco-innovation vehicle that is to be fitted with the innovative technology, or, where appropriate, the innovative technology as a stand-alone component; |
| --- | --- | --- |

(b)

in paragraph 1, points (a) and (b) are replaced by the following:

‘(a)

an eco-innovation vehicle that is to be fitted with the innovative technology, or, where appropriate, the innovative technology as a stand-alone component;

| (b) | a baseline vehicle that shall not to be fitted with the innovative technology but that is in all other aspects identical to the eco-innovation vehicle, or, where appropriate, a baseline technology as a stand-alone component.’; |
| --- | --- |

(b)

a baseline vehicle that shall not to be fitted with the innovative technology but that is in all other aspects identical to the eco-innovation vehicle, or, where appropriate, a baseline technology as a stand-alone component.’;

| (c) | paragraph 3 is replaced by the following:

  ‘3.   If the applicant considers that the information referred to in Articles 8 and 9 can be demonstrated by other means than those referred to in paragraph 1 of this Article, the application for the approval of an innovative technology as an eco-innovation shall include the necessary details justifying that conclusion and a methodology providing equivalent results.’; |
| --- | --- |

(c)

paragraph 3 is replaced by the following:

‘3.   If the applicant considers that the information referred to in Articles 8 and 9 can be demonstrated by other means than those referred to in paragraph 1 of this Article, the application for the approval of an innovative technology as an eco-innovation shall include the necessary details justifying that conclusion and a methodology providing equivalent results.’;

| (d) | the following paragraph 4 is added:

  ‘4.   Where the application for the approval of an innovative technology as an eco-innovation is made by reference to the WLTP as referred to in Article 2(4)(b), the baseline vehicle shall be the vehicle within the interpolation family or the road loads matrix family which represents the worst case for the purpose of demonstrating the eco-innovation savings.
  In the case referred to in the second subparagraph of point 1.2.3.1 of sub-Annex 6 or point 3.2.3.1 of sub-Annex 7 to Annex XXI to Regulation (EU) 2017/1151, the baseline vehicle shall be the test vehicle H.
  The choice of baseline vehicle shall be supported by strong and independent statistical evidence on the basis of which verifiable assumptions about the appropriateness and representativeness of the baseline vehicle can be made.’. |
| --- | --- |

(d)

the following paragraph 4 is added:

‘4.   Where the application for the approval of an innovative technology as an eco-innovation is made by reference to the WLTP as referred to in Article 2(4)(b), the baseline vehicle shall be the vehicle within the interpolation family or the road loads matrix family which represents the worst case for the purpose of demonstrating the eco-innovation savings.

In the case referred to in the second subparagraph of point 1.2.3.1 of sub-Annex 6 or point 3.2.3.1 of sub-Annex 7 to Annex XXI to Regulation (EU) 2017/1151, the baseline vehicle shall be the test vehicle H.

The choice of baseline vehicle shall be supported by strong and independent statistical evidence on the basis of which verifiable assumptions about the appropriateness and representativeness of the baseline vehicle can be made.’.

| (5) | Article 7 is amended as follows:






  (a) | the following paragraph 1a is added:

  ‘1a.   Where the applicant is a group of manufacturers or suppliers the following conditions apply:






  (a) | the independent and certified body shall carry out the verifications referred to in points (a) to (e) of paragraph 2 in relation to each member of the applicant group, where relevant, depending on the content of the application for the approval of an innovative technology as an eco-innovation; |
| --- | --- | --- | --- |

(5)

Article 7 is amended as follows:

(a)

the following paragraph 1a is added:

‘1a.   Where the applicant is a group of manufacturers or suppliers the following conditions apply:

(a)

the independent and certified body shall carry out the verifications referred to in points (a) to (e) of paragraph 2 in relation to each member of the applicant group, where relevant, depending on the content of the application for the approval of an innovative technology as an eco-innovation;

| (b) | where appropriate for confidentiality or competition reasons, several verification reports may be provided by the members of the applicant group for different sets of data supporting the same application.’; |
| --- | --- |

(b)

where appropriate for confidentiality or competition reasons, several verification reports may be provided by the members of the applicant group for different sets of data supporting the same application.’;

| (b) | paragraph 2 is amended as follows:






  (i) | in the first subparagraph, the following point (ca) is inserted:






  ‘(ca) | verify, in the case of point (ea) of Article 4(2), that the simplified evaluation method or the predefined CO2 savings values referred to in that point are appropriate for certifying the CO2 savings for the relevant vehicles referred to in point (d) of Article 4(2), and meet the minimum requirements set out in Article 4[2][f](iv);’; |
| --- | --- | --- | --- |

(b)

paragraph 2 is amended as follows:

(i)

in the first subparagraph, the following point (ca) is inserted:

‘(ca)

verify, in the case of point (ea) of Article 4(2), that the simplified evaluation method or the predefined CO2

2

| (ii) | the last subparagraph is replaced by the following:
  ‘For the purpose of point (c) and (ca), the independent and certified body shall provide the testing protocols established for the verification.’; |
| --- | --- |

(ii)

the last subparagraph is replaced by the following:

‘For the purpose of point (c) and (ca), the independent and certified body shall provide the testing protocols established for the verification.’;

| (c) | in Paragraph 3, the first subparagraph is replaced by the following:

  ‘3.   For the purposes of the certification of the CO2 savings in accordance with Article 11, the independent and certified body shall, at the request of the manufacturer, draw up a report on the interaction between several eco-innovations fitted to one vehicle type, variant, version and, where applicable, interpolation family.’; |
| --- | --- |

(c)

in Paragraph 3, the first subparagraph is replaced by the following:

‘3.   For the purposes of the certification of the CO2 savings in accordance with Article 11, the independent and certified body shall, at the request of the manufacturer, draw up a report on the interaction between several eco-innovations fitted to one vehicle type, variant, version and, where applicable, interpolation family.’;

| (d) | Paragraph 4 is deleted. |
| --- | --- |

(d)

Paragraph 4 is deleted.

| (6) | Article 8 is amended as follows:






  (a) | in paragraph 1, points (a) and (b) are replaced by the following:






  ‘(a) | the CO2 emissions from the baseline vehicle and from the eco-innovation vehicle with the innovative technology in operation resulting from the application of the methodology referred to in point (e) of Article 4(2) and, where appropriate, the application of the simplified evaluation method referred to in point (ea) of that Article; |
| --- | --- | --- | --- |

(6)

Article 8 is amended as follows:

(a)

in paragraph 1, points (a) and (b) are replaced by the following:

‘(a)

the CO2 emissions from the baseline vehicle and from the eco-innovation vehicle with the innovative technology in operation resulting from the application of the methodology referred to in point (e) of Article 4(2) and, where appropriate, the application of the simplified evaluation method referred to in point (ea) of that Article;

2

| (b) | the CO2 emissions from the baseline vehicle and from the eco-innovation vehicle with the innovative technology in operation resulting from the application of the standard test procedure as specified in accordance with Article 2(4)(a) or (b).’; |
| --- | --- |

(b)

the CO2 emissions from the baseline vehicle and from the eco-innovation vehicle with the innovative technology in operation resulting from the application of the standard test procedure as specified in accordance with Article 2(4)(a) or (b).’;

2

| (b) | in paragraph 2, the following subparagraph is added:
  ‘In the case of applications for the approval of an innovative technology as an eco-innovation made by reference to Article 2(4)(b), the uncertainty shall be assessed and quantified for the purpose of determining the savings. The quantified uncertainty shall be subtracted from the total savings.’; |
| --- | --- |

(b)

in paragraph 2, the following subparagraph is added:

‘In the case of applications for the approval of an innovative technology as an eco-innovation made by reference to Article 2(4)(b), the uncertainty shall be assessed and quantified for the purpose of determining the savings. The quantified uncertainty shall be subtracted from the total savings.’;

| (c) | the following paragraph 3 is added:

  ‘3.   In the case of predefined CO2 savings values proposed in accordance with Article 4(2)(ea), those values shall be set at a level that is lower or equal to the total savings determined in accordance with paragraph 2.’. |
| --- | --- |

(c)

the following paragraph 3 is added:

‘3.   In the case of predefined CO2 savings values proposed in accordance with Article 4(2)(ea), those values shall be set at a level that is lower or equal to the total savings determined in accordance with paragraph 2.’.

| (7) | Article 9 is amended as follows:






  (a) | paragraph 1 is replaced by the following:

  ‘1.   The minimum reduction to be achieved in accordance with Article 8(2) by the innovative technology shall be:






  (a) | 1 g CO2/km in the case of an application made by reference to Article 2(4)(a); |
| --- | --- | --- | --- |

(7)

Article 9 is amended as follows:

(a)

paragraph 1 is replaced by the following:

‘1.   The minimum reduction to be achieved in accordance with Article 8(2) by the innovative technology shall be:

(a)

1 g CO2/km in the case of an application made by reference to Article 2(4)(a);

| (b) | 0,5 g CO2/km in the case of an application made by reference to Article 2(4)(b).’; |
| --- | --- |

(b)

0,5 g CO2/km in the case of an application made by reference to Article 2(4)(b).’;

| (b) | in paragraph 2, the wording ‘standard test cycle’ is replaced by ‘standard test procedure’. |
| --- | --- |

(b)

in paragraph 2, the wording ‘standard test cycle’ is replaced by ‘standard test procedure’.

| (8) | The title of Article 10 is replaced by the following:
  ‘Article 10
  Assessment of an application for the approval of an innovative technology as an eco-innovation’. |
| --- | --- |

(8)

The title of Article 10 is replaced by the following:

‘Article 10

Assessment of an application for the approval of an innovative technology as an eco-innovation’.

| (9) | Article 11 is amended as follows:






  (a) | paragraph 2 is replaced by the following:

  ‘2.   The certified CO2 savings of the eco-innovation demonstrated in accordance with the corresponding decision to approve the innovative technology as an eco-innovation shall be specified separately in both the type-approval documentation and the certificate of conformity in accordance with Directive 2007/46/EC, on the basis of tests carried out by technical services in accordance with Article 11 of that Directive, using the approved testing methodology.
  Subject to the requirements of the approval decision, the quantified uncertainty referred to in Article 8(2) shall be subtracted from the total savings to be certified. Where the CO2 savings of an eco-innovation for a specific type, variant, version and, where appropriate, interpolation family are below the relevant threshold specified in Article 9(1), the savings shall not be certified.
  In the case predefined CO2 savings determined in accordance with Article 4(2)(ea) are specified in the approval decision, the relevant predefined CO2 savings value may be entered directly into the type approval documentation, provided that the approval authority is in a position to confirm that the vehicle is fitted with the technology in accordance with the specifications of the approval decision.’; |
| --- | --- | --- |

(9)

Article 11 is amended as follows:

(a)

paragraph 2 is replaced by the following:

‘2.   The certified CO2 savings of the eco-innovation demonstrated in accordance with the corresponding decision to approve the innovative technology as an eco-innovation shall be specified separately in both the type-approval documentation and the certificate of conformity in accordance with Directive 2007/46/EC, on the basis of tests carried out by technical services in accordance with Article 11 of that Directive, using the approved testing methodology.

Subject to the requirements of the approval decision, the quantified uncertainty referred to in Article 8(2) shall be subtracted from the total savings to be certified. Where the CO2 savings of an eco-innovation for a specific type, variant, version and, where appropriate, interpolation family are below the relevant threshold specified in Article 9(1), the savings shall not be certified.

In the case predefined CO2 savings determined in accordance with Article 4(2)(ea) are specified in the approval decision, the relevant predefined CO2 savings value may be entered directly into the type approval documentation, provided that the approval authority is in a position to confirm that the vehicle is fitted with the technology in accordance with the specifications of the approval decision.’;

| (b) | In the second subparagraph of paragraph 4, the value ‘1 g CO2/km’ is replaced by ‘0,5 g CO2/km’. |
| --- | --- |

(b)

In the second subparagraph of paragraph 4, the value ‘1 g CO2/km’ is replaced by ‘0,5 g CO2/km’.

2

2

| (10) | Article 12 is amended as follows:






  (a) | in paragraph 1, after the second subparagraph, the following subparagraph is inserted:
  ‘The Commission may also, whenever it finds or is informed of deviations or inconsistences in the testing methodology or in the innovative technology in comparison to the information it had received as part of the application for the approval of the innovative technology as an eco-innovation, notify this to the manufacturer.’; |
| --- | --- | --- |

(10)

Article 12 is amended as follows:

(a)

in paragraph 1, after the second subparagraph, the following subparagraph is inserted:

‘The Commission may also, whenever it finds or is informed of deviations or inconsistences in the testing methodology or in the innovative technology in comparison to the information it had received as part of the application for the approval of the innovative technology as an eco-innovation, notify this to the manufacturer.’;

| (b) | paragraph 3 is replaced by the following:

  ‘3.   A manufacturer for which the certified CO2 savings are no longer taken into account may apply for a new certification of the vehicles concerned in accordance with the procedure laid down in Article 11, or may, where appropriate, make a request for an amendment of the approval decision in accordance with Article 12a, which shall be supported by such evidence that is required to confirm the appropriateness of the testing methodology and the level of CO2 savings achieved by the innovative technology.’. |
| --- | --- |

(b)

paragraph 3 is replaced by the following:

‘3.   A manufacturer for which the certified CO2 savings are no longer taken into account may apply for a new certification of the vehicles concerned in accordance with the procedure laid down in Article 11, or may, where appropriate, make a request for an amendment of the approval decision in accordance with Article 12a, which shall be supported by such evidence that is required to confirm the appropriateness of the testing methodology and the level of CO2 savings achieved by the innovative technology.’.

| (11) | The following Article 12a is inserted:

  ‘Article 12a
  Amendment of a decision to approve an innovative technology as an eco-innovation

  1.   A manufacturer or supplier, including the original applicant, may submit to the Commission a request for an existing approval decision to be amended. The request and all supporting documentation shall also be submitted by electronic mail or electronic data carrier or uploaded to a server managed by the Commission. The written request shall list the supporting documentation.


  2.   The following information and evidence shall be provided together with the request for amendment:






  (a) | contact details of the requester; |
| --- | --- | --- |

(11)

The following Article 12a is inserted:

‘Article 12a

Amendment of a decision to approve an innovative technology as an eco-innovation

1.   A manufacturer or supplier, including the original applicant, may submit to the Commission a request for an existing approval decision to be amended. The request and all supporting documentation shall also be submitted by electronic mail or electronic data carrier or uploaded to a server managed by the Commission. The written request shall list the supporting documentation.

2.   The following information and evidence shall be provided together with the request for amendment:

(a)

contact details of the requester;

| (b) | the reference to the approval decision to be amended; |
| --- | --- |

(b)

the reference to the approval decision to be amended;

| (c) | a description of the amendments proposed including a summary of that description; |
| --- | --- |

(c)

a description of the amendments proposed including a summary of that description;

| (d) | evidence demonstrating the necessity and the appropriateness of the amendments; |
| --- | --- |

(d)

evidence demonstrating the necessity and the appropriateness of the amendments;

| (e) | evidence demonstrating that emissions reduction achieved by the innovative technology as determined using the amended testing methodology or, where appropriate, the new or amended simplified evaluation method or predefined CO2 savings, meets the relevant threshold specified in Article 9(1), taking into account any deterioration over time of the technology; |
| --- | --- |

(e)

evidence demonstrating that emissions reduction achieved by the innovative technology as determined using the amended testing methodology or, where appropriate, the new or amended simplified evaluation method or predefined CO2 savings, meets the relevant threshold specified in Article 9(1), taking into account any deterioration over time of the technology;

| (f) | a specific validation report established by an independent and certified body that verifies the following:






  — | the amended testing methodology meets the requirements set out in Article 6(1) and, where applicable, the requirements set out in Article 4(2)(f)(iv), |
| --- | --- | --- |

(f)

a specific validation report established by an independent and certified body that verifies the following:

—

the amended testing methodology meets the requirements set out in Article 6(1) and, where applicable, the requirements set out in Article 4(2)(f)(iv),

| — | the emissions reduction achieved by the innovative technology as determined using the amended testing methodology or, where appropriate, the new or amended simplified evaluation method or predefined CO2 savings, meets the relevant threshold specified in Article 9(1), taking into account any deterioration over time of the technology. |
| --- | --- |

—

the emissions reduction achieved by the innovative technology as determined using the amended testing methodology or, where appropriate, the new or amended simplified evaluation method or predefined CO2 savings, meets the relevant threshold specified in Article 9(1), taking into account any deterioration over time of the technology.

3.   On receipt of the request for amendment, the Commission shall make public the summary description of the amendments proposed referred to in paragraph 2(c).

4.   The Commission shall assess the request for amendment and, within 9 months from receipt of a complete request, it shall amend the approval decision, unless objections are raised in respect of the appropriateness of the proposed amendments.

The amended approval decision shall, where necessary, specify its applicability and the information required for the certification of the CO2 savings in accordance with Article 11 of this Regulation, subject to the application of the exceptions to the right to public access to documents specified in Regulation (EC) No 1049/2001.

5.   The Commission may require adjustments to the proposed amendments. The Commission shall in that case consult the requester as well as other relevant stakeholders, including the original applicant for the approval of the innovative technology as an eco-innovation, on the proposed amendments and, where appropriate, take account of the comments received.

6.   The assessment period may be extended by 5 months where the Commission finds that, because of the complexity of the innovative technology and the accompanying amended testing methodology or because of the size and content of the request for amendment, the request cannot be appropriately assessed within the 9 months' assessment period.

The Commission shall within 40 days of receipt of the request notify the requester if the assessment period is to be extended.

7.   The Commission may at any time amend an approval decision on its own initiative, in particular to take into account technical progress. The Commission shall consult the original applicant for approval of the innovative technology as an eco-innovation and other relevant stakeholders on the amendments it considers and, where appropriate, take account of the comments received.’.

Article 2

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 21 February 2018.

For the Commission

The President

Jean-Claude JUNCKER

---

(1)  
  OJ L 145, 31.5.2011, p. 1.

1

(2)  Commission Regulation (EU) 2017/1151 of 1 June 2017 supplementing Regulation (EC) No 715/2007 of the European Parliament and of the Council on type-approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information, amending Directive 2007/46/EC of the European Parliament and of the Council, Commission Regulation (EC) No 692/2008 and Commission Regulation (EU) No 1230/2012 and repealing Commission Regulation (EC) No 692/2008 (OJ L 175, 7.7.2017, p. 1).

2

(3)  Commission Regulation (EC) No 692/2008 of 18 July 2008 implementing and amending Regulation (EC) No 715/2007 of the European Parliament and of the Council on type-approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information (OJ L 199, 28.7.2008, p. 1).

3

(4)  Commission Implementing Regulation (EU) 2017/1153 of 2 June 2017 setting out a methodology for determining the correlation parameters necessary for reflecting the change in the regulatory test procedure and amending Regulation (EU) No 1014/2010 (OJ L 175, 7.7.2017, p. 679).

4

(5)  Commission Implementing Regulation (EU) No 427/2014 of 25 April 2014 establishing a procedure for the approval and certification of innovative technologies for reducing CO2 emissions from light commercial vehicles pursuant to Regulation (EU) No 510/2011 of the European Parliament and of the Council (OJ L 125, 26.4.2014, p. 57).

5

2

---

| 22.2.2018 | EN | Official Journal of the European Union | L 49/16 |
| --- | --- | --- | --- |

22.2.2018

EN

Official Journal of the European Union

L 49/16

---

COMMISSION IMPLEMENTING REGULATION (EU) 2018/260

of 21 February 2018

terminating the investigation concerning the possible circumvention of anti-dumping measures imposed by Council Implementing Regulation (EU) No 1008/2011, as amended by Implementing Regulation (EU) No 372/2013, on imports of hand pallet trucks and their essential parts originating in the People's Republic of China by imports consigned from Vietnam, whether declared as originating in Vietnam or not

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (1) (‘the basic Regulation’), and in particular Articles 13(3) and 14(5) thereof,

Whereas:

1.   PROCEDURE

PROCEDURE

1.1.   Previous investigations and existing measures

Previous investigations and existing measures

| (1) | In July 2005, by Regulation (EC) No 1174/2005 (2) the Council imposed a definitive anti-dumping duty on imports of hand pallet trucks and their essential parts (‘hand pallet trucks’) originating in the People's Republic of China (‘the PRC’ or ‘China’). The measures consisted of an ad valorem anti-dumping duty ranging between 7,6 % and 46,7 % (‘the original measures’). |
| --- | --- |

(1)

In July 2005, by Regulation (EC) No 1174/2005 (2) the Council imposed a definitive anti-dumping duty on imports of hand pallet trucks and their essential parts (‘hand pallet trucks’) originating in the People's Republic of China (‘the PRC’ or ‘China’). The measures consisted of an ad valorem anti-dumping duty ranging between 7,6 % and 46,7 % (‘the original measures’).

2

ad valorem

| (2) | In July 2008, by Regulation (EC) No 684/2008 (3) the Council, following an ex officio partial interim review under Article 11(3) of the basic Regulation, clarified the scope of the measures and excluded certain products, high lifters, stackers, scissor lifts and weighing trucks, that were found to be distinct from hand pallet trucks due to their characteristics and specific functions and end-uses, from the original anti-dumping measures. |
| --- | --- |

(2)

In July 2008, by Regulation (EC) No 684/2008 (3) the Council, following an ex officio partial interim review under Article 11(3) of the basic Regulation, clarified the scope of the measures and excluded certain products, high lifters, stackers, scissor lifts and weighing trucks, that were found to be distinct from hand pallet trucks due to their characteristics and specific functions and end-uses, from the original anti-dumping measures.

3

ex officio

| (3) | In June 2009, by Regulation (EC) No 499/2009 (4) the Council, following an anti-circumvention investigation under Article 13 of the basic Regulation, extended the definitive anti-dumping duty applicable to ‘all other companies’ imposed by Regulation (EC) No 1174/2005 to hand pallet trucks consigned from Thailand whether declared as originating in Thailand or not. |
| --- | --- |

(3)

In June 2009, by Regulation (EC) No 499/2009 (4) the Council, following an anti-circumvention investigation under Article 13 of the basic Regulation, extended the definitive anti-dumping duty applicable to ‘all other companies’ imposed by Regulation (EC) No 1174/2005 to hand pallet trucks consigned from Thailand whether declared as originating in Thailand or not.

4

| (4) | In October 2011, by Implementing Regulation (EU) No 1008/2011 (5), the Council, following an expiry review pursuant to Article 11(2) of the basic Regulation, imposed a definitive anti-dumping duty on imports of hand pallet trucks originating in the PRC. |
| --- | --- |

(4)

In October 2011, by Implementing Regulation (EU) No 1008/2011 (5), the Council, following an expiry review pursuant to Article 11(2) of the basic Regulation, imposed a definitive anti-dumping duty on imports of hand pallet trucks originating in the PRC.

5

| (5) | In April 2013, by Implementing Regulation (EU) No 372/2013 (6), the Council, following an interim review pursuant to Article 11(3) of the basic Regulation, amended Regulation (EU) No 1008/2011, and imposed a duty rate of 70,8 % applicable to all imports into the Union of hand pallet trucks originating in the PRC. |
| --- | --- |

(5)

In April 2013, by Implementing Regulation (EU) No 372/2013 (6), the Council, following an interim review pursuant to Article 11(3) of the basic Regulation, amended Regulation (EU) No 1008/2011, and imposed a duty rate of 70,8 % applicable to all imports into the Union of hand pallet trucks originating in the PRC.

6

| (6) | In September 2014, by Implementing Regulation (EU) No 946/2014 (7), the European Commission (‘the Commission’), following a new exporter review pursuant to Article 11(4) of the basic Regulation, amended Regulation (EU) No 1008/2011, imposing an individual duty rate of 54,1 % on imports of hand pallet trucks from Ningbo Logitrans Handling Equipment Co. |
| --- | --- |

(6)

In September 2014, by Implementing Regulation (EU) No 946/2014 (7), the European Commission (‘the Commission’), following a new exporter review pursuant to Article 11(4) of the basic Regulation, amended Regulation (EU) No 1008/2011, imposing an individual duty rate of 54,1 % on imports of hand pallet trucks from Ningbo Logitrans Handling Equipment Co.

7

| (7) | In August 2016, by Implementing Regulation (EU) 2016/1346 (8) the Commission, following an anti-circumvention investigation under Article 13 of the basic Regulation, extended the definitive anti-dumping duties in force to imports of slightly modified hand pallet trucks incorporating a weight indication system not integrated in the chassis (the forks) originating in the PRC. |
| --- | --- |

(7)

In August 2016, by Implementing Regulation (EU) 2016/1346 (8) the Commission, following an anti-circumvention investigation under Article 13 of the basic Regulation, extended the definitive anti-dumping duties in force to imports of slightly modified hand pallet trucks incorporating a weight indication system not integrated in the chassis (the forks) originating in the PRC.

8

| (8) | In November 2017, by Implementing Regulation (EU) 2017/2206 (9), the Commission, following a second expiry review pursuant to Article 11(2) of the basic Regulation, imposed a definitive anti-dumping duty on imports of hand pallet trucks originating in the PRC. |
| --- | --- |

(8)

In November 2017, by Implementing Regulation (EU) 2017/2206 (9), the Commission, following a second expiry review pursuant to Article 11(2) of the basic Regulation, imposed a definitive anti-dumping duty on imports of hand pallet trucks originating in the PRC.

9

| (9) | The measures currently in force are a definitive anti-dumping duty on imports of hand pallet trucks and their essential parts originating in the PRC consisting of an ad valorem duty established at 70,8 %. |
| --- | --- |

(9)

The measures currently in force are a definitive anti-dumping duty on imports of hand pallet trucks and their essential parts originating in the PRC consisting of an ad valorem duty established at 70,8 %.

ad valorem

1.2.   Request

Request

| (10) | The Commission received a request pursuant to Articles 13(3) and 14(5) of the basic Regulation to investigate the possible circumvention of the anti-dumping measures imposed on hand pallet trucks and their essential parts originating in the PRC by imports consigned from Vietnam, whether declared as originating in Vietnam or not, and to make such imports subject to registration. |
| --- | --- |

(10)

The Commission received a request pursuant to Articles 13(3) and 14(5) of the basic Regulation to investigate the possible circumvention of the anti-dumping measures imposed on hand pallet trucks and their essential parts originating in the PRC by imports consigned from Vietnam, whether declared as originating in Vietnam or not, and to make such imports subject to registration.

| (11) | The request was lodged on 6 June 2017 by two Union producers of hand pallet trucks and their essential parts, Toyota Material Handling Manufacturing Sweden AB and PR Industrial S.r.l. (‘the applicants’). |
| --- | --- |

(11)

The request was lodged on 6 June 2017 by two Union producers of hand pallet trucks and their essential parts, Toyota Material Handling Manufacturing Sweden AB and PR Industrial S.r.l. (‘the applicants’).

| (12) | The request contained sufficient prima facie evidence on a change in the pattern of trade between the Union, the PRC and Vietnam which appeared to stem from a practice, process or work for which there was insufficient due cause or economic justification other than the imposition of the duty, namely the consignment of the product concerned via Vietnam to the Union after having undergone assembly operations in Vietnam. The request contained sufficient prima facie evidence showing that such assembly operations constituted circumvention as Chinese parts constituted above 60 % of the total value of the assembled product and the value added during the assembly operation was lower than 25 % of the manufacturing cost. |
| --- | --- |

(12)

The request contained sufficient prima facie evidence on a change in the pattern of trade between the Union, the PRC and Vietnam which appeared to stem from a practice, process or work for which there was insufficient due cause or economic justification other than the imposition of the duty, namely the consignment of the product concerned via Vietnam to the Union after having undergone assembly operations in Vietnam. The request contained sufficient prima facie evidence showing that such assembly operations constituted circumvention as Chinese parts constituted above 60 % of the total value of the assembled product and the value added during the assembly operation was lower than 25 % of the manufacturing cost.

prima facie

prima facie

| (13) | Furthermore, the request contained sufficient prima facie evidence that the practice described above was undermining the remedial effects of the existing anti- dumping measures both in terms of quantities and prices and that the prices of the product under investigation were dumped in relation to the normal value previously established for the product concerned. |
| --- | --- |

(13)

Furthermore, the request contained sufficient prima facie evidence that the practice described above was undermining the remedial effects of the existing anti- dumping measures both in terms of quantities and prices and that the prices of the product under investigation were dumped in relation to the normal value previously established for the product concerned.

prima facie

1.3.   Product concerned and product under investigation

Product concerned and product under investigation

| (14) | The product subject to this investigation is hand pallet trucks and their essential parts, i.e. chassis and hydraulics, currently falling within CN codes ex 8427 90 00 and ex 8431 20 00, originating in the People's Republic of China. For the purpose of this Regulation, hand pallet trucks shall be trucks with wheels supporting lifting fork arms for handling pallets, designed to be manually pushed, pulled and steered, on smooth, level, hard surfaces, by a pedestrian operator using an articulated tiller. The hand pallet trucks are only designed to raise a load, by pumping the tiller, to a height sufficient for transporting and do not have any other additional functions or uses such as for example (i) to move and to lift the loads in order to place them higher or assist in storage of loads (highlifters); (ii) to stack one pallet above the other (stackers); (iii) to lift the load to a working level (scissorlifts); or (iv) to lift and to weigh the loads (weighing trucks) (‘the product concerned’). |
| --- | --- |

(14)

The product subject to this investigation is hand pallet trucks and their essential parts, i.e. chassis and hydraulics, currently falling within CN codes ex 8427 90 00 and ex 8431 20 00, originating in the People's Republic of China. For the purpose of this Regulation, hand pallet trucks shall be trucks with wheels supporting lifting fork arms for handling pallets, designed to be manually pushed, pulled and steered, on smooth, level, hard surfaces, by a pedestrian operator using an articulated tiller. The hand pallet trucks are only designed to raise a load, by pumping the tiller, to a height sufficient for transporting and do not have any other additional functions or uses such as for example (i) to move and to lift the loads in order to place them higher or assist in storage of loads (highlifters); (ii) to stack one pallet above the other (stackers); (iii) to lift the load to a working level (scissorlifts); or (iv) to lift and to weigh the loads (weighing trucks) (‘the product concerned’).

| (15) | The product under investigation is the same product as that defined above but consigned from Vietnam, whether declared as originating in Vietnam or not, currently falling within the same CN codes as the product concerned (‘the product under investigation’). |
| --- | --- |

(15)

The product under investigation is the same product as that defined above but consigned from Vietnam, whether declared as originating in Vietnam or not, currently falling within the same CN codes as the product concerned (‘the product under investigation’).

| (16) | The investigation showed that the hand pallet trucks and their essential parts, as defined above, exported from the PRC to the Union and those consigned from Vietnam have the same basic physical and technical characteristics and have the same uses, and are therefore to be considered as like products within the meaning of Article 1(4) of the basic Regulation. |
| --- | --- |

(16)

The investigation showed that the hand pallet trucks and their essential parts, as defined above, exported from the PRC to the Union and those consigned from Vietnam have the same basic physical and technical characteristics and have the same uses, and are therefore to be considered as like products within the meaning of Article 1(4) of the basic Regulation.

1.4.   Initiation

Initiation

| (17) | Having determined, after having informed the Member States, that sufficient prima facie evidence existed for the initiation of an investigation pursuant to Articles 13(3) and 14(5) of the basic Regulation, the Commission decided to investigate the possible circumvention of the anti-dumping measures imposed on imports of hand pallet trucks and their essential parts originating in China and to make imports of hand pallet trucks and their essential parts consigned from Vietnam, whether declared as originating in Vietnam or not, subject to registration. |
| --- | --- |

(17)

Having determined, after having informed the Member States, that sufficient prima facie evidence existed for the initiation of an investigation pursuant to Articles 13(3) and 14(5) of the basic Regulation, the Commission decided to investigate the possible circumvention of the anti-dumping measures imposed on imports of hand pallet trucks and their essential parts originating in China and to make imports of hand pallet trucks and their essential parts consigned from Vietnam, whether declared as originating in Vietnam or not, subject to registration.

| (18) | The investigation was initiated by Commission Implementing Regulation (EU) 2017/1348 (10) (‘the initiating Regulation’). |
| --- | --- |

(18)

The investigation was initiated by Commission Implementing Regulation (EU) 2017/1348 (10) (‘the initiating Regulation’).

10

1.5.   Investigation period and reporting period

Investigation period and reporting period

| (19) | The investigation period covered the period from 1 January 2011 to 30 June 2017 (‘the investigation period’). Data were collected for the investigation period to investigate, inter alia, the alleged change in the pattern of trade following the imposition of the measures as well as following the increase of the definitive anti-dumping duty by Implementing Regulation (EU) No 372/2013 and the existence of a practice, process or work for which there was insufficient due cause or economic justification other than the imposition of the duty. More detailed data were collected for the reporting period from 1 July 2016 to 30 June 2017 (‘the reporting period’) in order to examine if imports were undermining the remedial effect of the measures in force in terms of prices and/or quantities and the existence of dumping. |
| --- | --- |

(19)

The investigation period covered the period from 1 January 2011 to 30 June 2017 (‘the investigation period’). Data were collected for the investigation period to investigate, inter alia, the alleged change in the pattern of trade following the imposition of the measures as well as following the increase of the definitive anti-dumping duty by Implementing Regulation (EU) No 372/2013 and the existence of a practice, process or work for which there was insufficient due cause or economic justification other than the imposition of the duty. More detailed data were collected for the reporting period from 1 July 2016 to 30 June 2017 (‘the reporting period’) in order to examine if imports were undermining the remedial effect of the measures in force in terms of prices and/or quantities and the existence of dumping.

1.6.   Investigation

Investigation

| (20) | The Commission officially informed the authorities of the PRC and Vietnam, the exporting producers and traders in those countries, the importers in the Union known to be concerned and the Union industry of the initiation of the investigation. Questionnaires were sent to the producers/exporters in the PRC and Vietnam known to the Commission or which made themselves known within the deadlines specified in recital 15 of the initiating Regulation. Questionnaires were also sent to importers in the Union. |
| --- | --- |

(20)

The Commission officially informed the authorities of the PRC and Vietnam, the exporting producers and traders in those countries, the importers in the Union known to be concerned and the Union industry of the initiation of the investigation. Questionnaires were sent to the producers/exporters in the PRC and Vietnam known to the Commission or which made themselves known within the deadlines specified in recital 15 of the initiating Regulation. Questionnaires were also sent to importers in the Union.

| (21) | Interested parties were given the opportunity to make their views known in writing and to request a hearing within the time limit set in the initiating Regulation. |
| --- | --- |

(21)

Interested parties were given the opportunity to make their views known in writing and to request a hearing within the time limit set in the initiating Regulation.

| (22) | Three companies in Vietnam, one of which had not started producing hand pallet trucks in the investigation period, and four unrelated importers made themselves known. |
| --- | --- |

(22)

Three companies in Vietnam, one of which had not started producing hand pallet trucks in the investigation period, and four unrelated importers made themselves known.

| (23) | Two Vietnamese companies submitted a questionnaire reply and requested an exemption from the possible extension of the measures, in accordance with Article 13(4) of the basic Regulation. |
| --- | --- |

(23)

Two Vietnamese companies submitted a questionnaire reply and requested an exemption from the possible extension of the measures, in accordance with Article 13(4) of the basic Regulation.

| (24) | Four unrelated importers in the Union provided questionnaire replies. |
| --- | --- |

(24)

Four unrelated importers in the Union provided questionnaire replies.

| (25) | Verification visits were carried out at the premises of the following companies in Vietnam:






  — | Vietmachine Producing and Trading Co., Ltd, and |
| --- | --- | --- |

(25)

Verification visits were carried out at the premises of the following companies in Vietnam:

—

Vietmachine Producing and Trading Co., Ltd, and

| — | D&D Technologies Co., Ltd. |
| --- | --- |

—

D&D Technologies Co., Ltd.

2.   RESULTS OF THE INVESTIGATION

RESULTS OF THE INVESTIGATION

2.1.   General considerations

General considerations

| (26) | In accordance with Article 13(1) of the basic Regulation, the following elements should be analysed successively in order to assess possible circumvention:






  — | whether there was a change in the pattern of trade between the PRC and the Union, |
| --- | --- | --- |

(26)

In accordance with Article 13(1) of the basic Regulation, the following elements should be analysed successively in order to assess possible circumvention:

—

whether there was a change in the pattern of trade between the PRC and the Union,

| — | if this change stemmed from a practice, process or work for which there was insufficient due cause or economic justification other than the imposition of the anti-dumping measures in force, |
| --- | --- |

—

if this change stemmed from a practice, process or work for which there was insufficient due cause or economic justification other than the imposition of the anti-dumping measures in force,

| — | if there is evidence of injury or the remedial effects of the anti-dumping measures in force were being undermined in terms of the prices and/or quantities of the product under investigation, and |
| --- | --- |

—

if there is evidence of injury or the remedial effects of the anti-dumping measures in force were being undermined in terms of the prices and/or quantities of the product under investigation, and

| — | whether there is evidence of dumping in relation to the normal values previously established for the product concerned. |
| --- | --- |

—

whether there is evidence of dumping in relation to the normal values previously established for the product concerned.

| (27) | In the present investigation, since the prima facie evidence provided by the applicants in the request pointed to assembly operations in Vietnam, the Commission more specifically analysed whether the criteria set out in Article 13(2) of the basic Regulation were met, in particular:






  — | whether the assembly operation started or substantially increased since, or just prior to, the initiation of the anti-dumping investigation and the parts concerned are from the country subject to measures, and |
| --- | --- | --- |

(27)

In the present investigation, since the prima facie evidence provided by the applicants in the request pointed to assembly operations in Vietnam, the Commission more specifically analysed whether the criteria set out in Article 13(2) of the basic Regulation were met, in particular:

prima facie

—

whether the assembly operation started or substantially increased since, or just prior to, the initiation of the anti-dumping investigation and the parts concerned are from the country subject to measures, and

| — | whether the parts constitute 60 % or more of the total value of the parts of the assembled product and whether the added value of the parts brought in, during the assembly or completion operation, was greater than 25 % of the manufacturing costs. |
| --- | --- |

—

whether the parts constitute 60 % or more of the total value of the parts of the assembled product and whether the added value of the parts brought in, during the assembly or completion operation, was greater than 25 % of the manufacturing costs.

| (28) | The information on export sales submitted by the two Vietnamese companies could be reconciled to the data available in the Comext database (11) on the imports of the product under investigation from Vietnam. It was therefore considered that these companies were the sole exporters of the product under investigation from Vietnam to the Union during the reporting period. |
| --- | --- |

(28)

The information on export sales submitted by the two Vietnamese companies could be reconciled to the data available in the Comext database (11) on the imports of the product under investigation from Vietnam. It was therefore considered that these companies were the sole exporters of the product under investigation from Vietnam to the Union during the reporting period.

11

2.2.   Condition of Article 13(2)(a): Start or substantial increase of operations

Condition of Article 13(2)(a): Start or substantial increase of operations

| (29) | For both companies, the sales volume to the Union market has constantly increased between 2013, when the definitive anti-dumping duty was increased to 70,8 % by Implementing Regulation (EU) No 372/2013, and the reporting period. Both companies more than tripled their sales volume to the Union market during this period. Before 2013, the volume exported by these companies to the Union market was negligible or absent. In parallel, the Chinese exports to the Union market of the product under investigation significantly fell by 65 %. It was therefore concluded that there was a change in the pattern of trade between the Union and the PRC on the one hand and the Union and Vietnam on the other hand and that therefore the condition set out in Article 13(2)(a) of the basic Regulation was met. |
| --- | --- |

(29)

For both companies, the sales volume to the Union market has constantly increased between 2013, when the definitive anti-dumping duty was increased to 70,8 % by Implementing Regulation (EU) No 372/2013, and the reporting period. Both companies more than tripled their sales volume to the Union market during this period. Before 2013, the volume exported by these companies to the Union market was negligible or absent. In parallel, the Chinese exports to the Union market of the product under investigation significantly fell by 65 %. It was therefore concluded that there was a change in the pattern of trade between the Union and the PRC on the one hand and the Union and Vietnam on the other hand and that therefore the condition set out in Article 13(2)(a) of the basic Regulation was met.

2.3.   Conditions of Article 13(2)(b): criteria of 60 % and 25 %

Conditions of Article 13(2)(b): criteria of 60 % and 25 %

| (30) | In accordance with Article 13(2)(b) of the basic Regulation, in order to establish circumvention, the Commission had to verify that the parts used in the assembly operation from the countries subject to the measures constituted 60 % or more of the total value of the parts of the assembled product and that the value added to the parts brought in was not greater than 25 % of the manufacturing cost. |
| --- | --- |

(30)

In accordance with Article 13(2)(b) of the basic Regulation, in order to establish circumvention, the Commission had to verify that the parts used in the assembly operation from the countries subject to the measures constituted 60 % or more of the total value of the parts of the assembled product and that the value added to the parts brought in was not greater than 25 % of the manufacturing cost.

(i)   First criterion: 60 % of the total value of the parts constituting the assembled product

First criterion: 60 % of the total value of the parts constituting the assembled product

| (31) | For both cooperating companies it was found that the parts from the country subject to measures did not constitute 60 % or more of the total value of the parts of the assembled products. |
| --- | --- |

(31)

For both cooperating companies it was found that the parts from the country subject to measures did not constitute 60 % or more of the total value of the parts of the assembled products.

| (32) | Consequently, the assembly operations carried out by the cooperating Vietnamese companies cannot be considered as circumvention within the meaning of Article 13(2) of the basic Regulation. |
| --- | --- |

(32)

Consequently, the assembly operations carried out by the cooperating Vietnamese companies cannot be considered as circumvention within the meaning of Article 13(2) of the basic Regulation.

(ii)   Second criterion: 25 % of the value added to the parts brought in

Second criterion: 25 % of the value added to the parts brought in

| (33) | As the investigation showed that the 60 % criterion was not met and the assembly operation cannot be considered as circumvention within the meaning of Article 13(2) of the basic Regulation, it was not considered necessary to examine this criterion. |
| --- | --- |

(33)

As the investigation showed that the 60 % criterion was not met and the assembly operation cannot be considered as circumvention within the meaning of Article 13(2) of the basic Regulation, it was not considered necessary to examine this criterion.

2.4.   Conditions of Article 13(2)(c): undermining of the remedial effects of the duty and evidence of dumping

Conditions of Article 13(2)(c): undermining of the remedial effects of the duty and evidence of dumping

| (34) | As the investigation showed that the 60 % criterion was not met and the assembly operation cannot be considered as circumvention within the meaning of Article 13(2) of the basic Regulation, it was not considered necessary to examine these aspects. |
| --- | --- |

(34)

As the investigation showed that the 60 % criterion was not met and the assembly operation cannot be considered as circumvention within the meaning of Article 13(2) of the basic Regulation, it was not considered necessary to examine these aspects.

| (35) | Since the two investigated companies represent 100 % of the Vietnamese imports during the reporting period it could not be established that measures in force with regard to China are being circumvented by imports consigned from Vietnam. |
| --- | --- |

(35)

Since the two investigated companies represent 100 % of the Vietnamese imports during the reporting period it could not be established that measures in force with regard to China are being circumvented by imports consigned from Vietnam.

3.   TERMINATION OF THE INVESTIGATION

TERMINATION OF THE INVESTIGATION

| (36) | In view of the findings mentioned in recitals 30 to 32, the current anti-circumvention investigation should be terminated. The registration of imports of hand pallet trucks and their essential parts consigned from Vietnam, whether declared as originating in Vietnam or not, introduced by the Initiating Regulation should therefore be discontinued, and that Regulation should be repealed. |
| --- | --- |

(36)

In view of the findings mentioned in recitals 30 to 32, the current anti-circumvention investigation should be terminated. The registration of imports of hand pallet trucks and their essential parts consigned from Vietnam, whether declared as originating in Vietnam or not, introduced by the Initiating Regulation should therefore be discontinued, and that Regulation should be repealed.

| (37) | Interested parties were informed of the essential facts and considerations on the basis of which the Commission intended to terminate the investigation and were given the opportunity to comment. The comments received were not of a nature to change the above conclusions. |
| --- | --- |

(37)

Interested parties were informed of the essential facts and considerations on the basis of which the Commission intended to terminate the investigation and were given the opportunity to comment. The comments received were not of a nature to change the above conclusions.

| (38) | The measures provided for in this regulation are in accordance with the opinion of the Committee established by Article 15(1) of Regulation (EU) 2016/1036, |
| --- | --- |

(38)

The measures provided for in this regulation are in accordance with the opinion of the Committee established by Article 15(1) of Regulation (EU) 2016/1036,

HAS ADOPTED THIS REGULATION:

Article 1

The investigation initiated by Implementing Regulation (EU) 2017/1348 in order to determine if imports into the Union of hand pallet trucks and their essential parts, i.e. chassis and hydraulics, originating in the People's Republic of China, currently falling within CN codes ex 8427 90 00 and ex 8431 20 00 and consigned from Vietnam, whether declared as originating in Vietnam or not (TARIC codes 8427900013 and 8431200013) are circumventing the measures imposed by Implementing Regulation (EU) No 1008/2011, as amended by Implementing Regulation (EU) No 372/2013, is hereby terminated.

Article 2

Customs authorities shall discontinue the registration of imports established in accordance with Article 2 of Implementing Regulation (EU) 2017/1348.

Article 3

Implementing Regulation (EU) 2017/1348 is hereby repealed.

Article 4

This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 21 February 2018.

For the Commission

The President

Jean-Claude JUNCKER

---

(1)  
  OJ L 176, 30.6.2016, p. 21.

1

(2)  Council Regulation (EC) No 1174/2005 of 18 July 2005 imposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of hand pallet trucks and their essential parts originating in the People's Republic of China (OJ L 189, 21.7.2005, p. 1).

2

(3)  Council Regulation (EC) No 684/2008 of 17 July 2008 clarifying the scope of the anti-dumping measures imposed by Regulation (EC) No 1174/2005 on imports of hand pallet trucks and their essential parts originating in the People's Republic of China (OJ L 192, 19.7.2008, p. 1).

3

(4)  Council Regulation (EC) No 499/2009 of 11 June 2009 extending the definitive anti-dumping duty imposed by Regulation (EC) No 1174/2005 on imports of hand pallet trucks and their essential parts originating in the People's Republic of China to imports of the same product consigned from Thailand, whether declared as originating in Thailand or not (OJ L 151, 16.6.2009, p. 1).

4

(5)  Council Implementing Regulation (EU) No 1008/2011 of 10 October 2011 imposing a definitive anti-dumping duty on imports of hand pallet trucks and their essential parts originating in the People's Republic of China as extended to imports of hand pallet trucks and their essential parts consigned from Thailand, whether declared as originating in Thailand or not, following an expiry review pursuant to Article 11(2) of Regulation (EC) No 1225/2009 (OJ L 268, 13.10.2011, p. 1).

5

(6)  Council Implementing Regulation (EU) No 372/2013 of 22 April 2013 amending Implementing Regulation (EU) No 1008/2011 imposing a definitive anti-dumping duty on imports of hand pallet trucks and their essential parts originating in the People's Republic of China following a partial interim review pursuant to Article 11(3) of Regulation (EC) No 1225/2009 (OJ L 112, 24.4.2013, p. 1).

6

(7)  Commission Implementing Regulation (EU) No 946/2014 of 4 September 2014 amending Council Implementing Regulation (EU) No 1008/2011 imposing a definitive anti- dumping duty on imports of hand pallet trucks and their essential parts originating in the People's Republic of China following a ‘new exporter’ review pursuant to Article 11(4) of Council Regulation (EC) No 1225/2009 (OJ L 265, 5.9.2014, p. 7).

7

(8)  Commission Implementing Regulation (EU) 2016/1346 of 8 August 2016 extending the definitive anti-dumping duty imposed by Council Implementing Regulation (EU) No 1008/2011, as amended by Council Implementing Regulation (EU) No 372/2013, on imports of hand pallet trucks and their essential parts originating in the People's Republic of China to imports of slightly modified hand pallet trucks originating in the People's Republic of China (OJ L 214, 9.8.2016, p. 1).

8

(9)  Commission Implementing Regulation (EU) 2017/2206 of 29 November 2017 imposing a definitive anti-dumping duty on hand pallet trucks and their essential parts originating in the People's Republic of China following an expiry review pursuant to Article 11(2) of Regulation (EU) 2016/1036 of the European Parliament and of the Council (OJ L 314, 30.11.2017, p. 12).

9

(10)  Commission Implementing Regulation (EU) 2017/1348 of 19 July 2017 initiating an investigation concerning the possible circumvention of anti-dumping measures imposed by Council Implementing Regulation (EU) No 1008/2011, as amended by Implementing Regulation (EU) No 372/2013, on imports of hand pallet trucks and their essential parts originating in the People's Republic of China by imports consigned from Vietnam, whether declared as originating in Vietnam or not, and making such imports subject to registration (OJ L 188, 20.7.2017, p. 1).

10

(11)  Comext is a database on foreign trade statistics managed by Eurostat.

11

---

DECISIONS

| 22.2.2018 | EN | Official Journal of the European Union | L 49/22 |
| --- | --- | --- | --- |

22.2.2018

EN

Official Journal of the European Union

L 49/22

---

COMMISSION DECISION (EU) 2018/261

of 22 January 2014

on the measures SA.32014 (2011/C), SA.32015 (2011/C), SA.32016 (2011/C) implemented by the Region of Sardinia in favour of Saremar

(notified under document C(2013) 9101)

(Only the Italian text is authentic)

(Text with EEA relevance)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union, and in particular the first subparagraph of Article 108(2) thereof,

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

Having called on interested parties to submit their comments pursuant to the provision(s) cited above (1) and having regard to their comments,

Whereas:

1.   PROCEDURE

PROCEDURE

| (1) | By decision C(2011) 6961 final adopted on 5 October 2011 the Commission opened the formal investigation procedure (2) in respect of several measures adopted by Italy in favour of the companies of the former Tirrenia Group (3) (hereinafter the 2011 Decision). The 2011 Decision was published in the Official Journal of the European Union. The Commission invited interested parties to submit their comments on the measures covered by the 2011 Decision. |
| --- | --- |

(1)

By decision C(2011) 6961 final adopted on 5 October 2011 the Commission opened the formal investigation procedure (2) in respect of several measures adopted by Italy in favour of the companies of the former Tirrenia Group (3) (hereinafter the 2011 Decision). The 2011 Decision was published in the Official Journal of the European Union. The Commission invited interested parties to submit their comments on the measures covered by the 2011 Decision.

2

3

the 2011 Decision

Official Journal of the European Union

| (2) | Italy submitted its observations on the 2011 Decision on 15 November 2011. The Commission received comments from interested parties. It forwarded them to Italy, which was given the opportunity to react. Italy's observations on the comments submitted by the interested parties were received by letters dated 24 April and 4 May 2012. |
| --- | --- |

(2)

Italy submitted its observations on the 2011 Decision on 15 November 2011. The Commission received comments from interested parties. It forwarded them to Italy, which was given the opportunity to react. Italy's observations on the comments submitted by the interested parties were received by letters dated 24 April and 4 May 2012.

| (3) | On 4 October 2011, 19 October 2011, 2 December 2011, 27 January 2012, 17 February 2012 and 28 February 2012, the Commission received new complaints on alleged aids to former Tirrenia Group companies and/or their acquirers. Some of these complaints claimed new aids had been granted to Saremar – Sardegna Regionale Marittima (hereinafter Saremar) by the Sardinian Region (hereinafter RAS). |
| --- | --- |

(3)

On 4 October 2011, 19 October 2011, 2 December 2011, 27 January 2012, 17 February 2012 and 28 February 2012, the Commission received new complaints on alleged aids to former Tirrenia Group companies and/or their acquirers. Some of these complaints claimed new aids had been granted to Saremar – Sardegna Regionale Marittima (hereinafter Saremar) by the Sardinian Region (hereinafter RAS).

Saremar

RAS

| (4) | On 7 November 2012 the Commission extended the investigation procedure concerning, inter alia, certain support measures granted by RAS to Saremar. By decision C(2012) 9452 final of 19 December 2012 the Commission adopted an amendment to the Decision extending the investigation procedure (hereinafter the 2012 Decision) (4). The 2012 Decision was published in the Official Journal of the European Union. The Commission invited interested parties to submit their comments on the measures under investigation. |
| --- | --- |

(4)

On 7 November 2012 the Commission extended the investigation procedure concerning, inter alia, certain support measures granted by RAS to Saremar. By decision C(2012) 9452 final of 19 December 2012 the Commission adopted an amendment to the Decision extending the investigation procedure (hereinafter the 2012 Decision) (4). The 2012 Decision was published in the Official Journal of the European Union. The Commission invited interested parties to submit their comments on the measures under investigation.

the 2012 Decision

4

Official Journal of the European Union

| (5) | RAS's comments on the measures concerning Saremar were received on 13 December 2012 and 26 February 2013. |
| --- | --- |

(5)

RAS's comments on the measures concerning Saremar were received on 13 December 2012 and 26 February 2013.

| (6) | As concerns specifically these measures, the Commission received comments from the beneficiary and competitors. It forwarded them to Italy, which was given the opportunity to react. Italy did not comment on the observations of interested parties concerning the measures subject to this Decision. |
| --- | --- |

(6)

As concerns specifically these measures, the Commission received comments from the beneficiary and competitors. It forwarded them to Italy, which was given the opportunity to react. Italy did not comment on the observations of interested parties concerning the measures subject to this Decision.

| (7) | By letter of 14 May 2013, RAS asked the Commission to separate from the formal investigation procedure opened by the 2011 and 2012 Decisions the measures concerning Saremar and to give priority to these measures, notably in view of the imminent privatisation of the company. |
| --- | --- |

(7)

By letter of 14 May 2013, RAS asked the Commission to separate from the formal investigation procedure opened by the 2011 and 2012 Decisions the measures concerning Saremar and to give priority to these measures, notably in view of the imminent privatisation of the company.

| (8) | The measures in question have been discussed in several meetings between the Commission and RAS's representatives and Saremar on 24 April 2012, 2 May 2013, 10 July 2013 and 10 October 2013, and between the Commission and the complainants on 27 July 2012, 20 November 2012 and 8 August 2013. |
| --- | --- |

(8)

The measures in question have been discussed in several meetings between the Commission and RAS's representatives and Saremar on 24 April 2012, 2 May 2013, 10 July 2013 and 10 October 2013, and between the Commission and the complainants on 27 July 2012, 20 November 2012 and 8 August 2013.

| (9) | By letter dated 6 August 2013 the Commission requested additional information to Italy on the measures subject to the investigation. Italy replied to this request on 26 September 2013 and 25 October 2013. |
| --- | --- |

(9)

By letter dated 6 August 2013 the Commission requested additional information to Italy on the measures subject to the investigation. Italy replied to this request on 26 September 2013 and 25 October 2013.

| (10) | Further submissions from RAS and Saremar were received by the Commission on 3 September 2013, 24 October 2013, 13 November 2013 and 21 November 2013. |
| --- | --- |

(10)

Further submissions from RAS and Saremar were received by the Commission on 3 September 2013, 24 October 2013, 13 November 2013 and 21 November 2013.

| (11) | This Decision addresses RAS's request to treat with priority the measures concerning Saremar. |
| --- | --- |

(11)

This Decision addresses RAS's request to treat with priority the measures concerning Saremar.

2.   THE MEASURES SUBJECT TO INVESTIGATION BY VIRTUE OF THE 2011 AND 2012 DECISIONS

THE MEASURES SUBJECT TO INVESTIGATION BY VIRTUE OF THE 2011 AND 2012 DECISIONS

| (12) | The formal investigation opened by the 2011 and 2012 Decisions covers the following measures:






  (a) | Compensation for the provision of services of general economic interest (SGEIs) under the prolongation of the initial Conventions; |
| --- | --- | --- |

(12)

The formal investigation opened by the 2011 and 2012 Decisions covers the following measures:

(a)

Compensation for the provision of services of general economic interest (SGEIs) under the prolongation of the initial Conventions;

SGEIs

| (b) | The privatisation of the companies of the former Tirrenia Group, including a counter-guarantee to CdI, buyer of Siremar, and the deferred payment of the purchase price by CIN, buyer of Tirrenia di Navigazione; |
| --- | --- |

(b)

The privatisation of the companies of the former Tirrenia Group, including a counter-guarantee to CdI, buyer of Siremar, and the deferred payment of the purchase price by CIN, buyer of Tirrenia di Navigazione;

| (c) | The berthing priority; |
| --- | --- |

(c)

The berthing priority;

| (d) | The measures laid down by Law 163 of 1 October 2010 converting Decree Law 125/2010 of 5 August 2010; |
| --- | --- |

(d)

The measures laid down by Law 163 of 1 October 2010 converting Decree Law 125/2010 of 5 August 2010;

| (e) | Additional measures adopted by RAS in favour of Saremar (the compensation for the operation of two maritime routes between Sardinia and mainland Italy in 2011/2012, the Bonus Sardo – Vacanza project, the EUR 3 million loan and the letters of comfort, and the recapitalisation); |
| --- | --- |

(e)

Additional measures adopted by RAS in favour of Saremar (the compensation for the operation of two maritime routes between Sardinia and mainland Italy in 2011/2012, the Bonus Sardo – Vacanza project, the EUR 3 million loan and the letters of comfort, and the recapitalisation);

| (f) | Misuse of rescue aid; |
| --- | --- |

(f)

Misuse of rescue aid;

| (g) | Compensation for the provision of SGEIs under the future Conventions/public service contracts. |
| --- | --- |

(g)

Compensation for the provision of SGEIs under the future Conventions/public service contracts.

| (13) | This Decision concerns only certain measures adopted by RAS in favour of Saremar, which will be identified below. The Bonus Sardo — Vacanza project will be assessed separately. |
| --- | --- |

(13)

This Decision concerns only certain measures adopted by RAS in favour of Saremar, which will be identified below. The Bonus Sardo — Vacanza project will be assessed separately.

2.1.   THE BENEFICIARY

THE BENEFICIARY

| (14) | The Tirrenia Group initially consisted of six companies, namely Tirrenia di Navigazione (hereinafter Tirrenia), Adriatica, Caremar, Saremar, Siremar and Toremar. The companies provided maritime transport services under separate public service contracts concluded with the State in 1991, in force until end 2008 (hereinafter the initial Conventions). Public company Fintecna – Finanziaria per i Settori Industriale e dei Servizi S.p.A. (hereinafter Fintecna) (5) held 100 % of Tirrenia's share capital which in turn owned the regional companies Adriatica, Caremar, Saremar, Siremar and Toremar. |
| --- | --- |

(14)

The Tirrenia Group initially consisted of six companies, namely Tirrenia di Navigazione (hereinafter Tirrenia), Adriatica, Caremar, Saremar, Siremar and Toremar. The companies provided maritime transport services under separate public service contracts concluded with the State in 1991, in force until end 2008 (hereinafter the initial Conventions). Public company Fintecna – Finanziaria per i Settori Industriale e dei Servizi S.p.A. (hereinafter Fintecna) (5) held 100 % of Tirrenia's share capital which in turn owned the regional companies Adriatica, Caremar, Saremar, Siremar and Toremar.

Tirrenia

the initial Conventions

Fintecna

5

| (15) | In 2004 Tirrenia merged with Adriatica. As of 2004, the Tirrenia Group was formed by Tirrenia, Caremar, Saremar, Siremar and Toremar (6). |
| --- | --- |

(15)

In 2004 Tirrenia merged with Adriatica. As of 2004, the Tirrenia Group was formed by Tirrenia, Caremar, Saremar, Siremar and Toremar (6).

6

| (16) | Article 19ter of Decree law 135/2009 converted into Law 166/2009 (hereinafter the 2009 law) laid down, inter alia, that the regional companies Caremar, Saremar and Toremar were transferred to the Regions of Campania, Sardinia and Tuscany, in view of their privatisation. It also laid down that new Conventions would be concluded between the Italian State and Tirrenia and Siremar by 31 December 2009. Likewise, the provision of regional services would be enshrined in new Public Service Contracts to be concluded between Saremar, Toremar, and Caremar and the respective Regions by 31 December 2009 and 28 February 2010 respectively. The new Conventions/new public service contracts would enter into force upon privatisation of each of the companies of the former Tirrenia Group (7). |
| --- | --- |

(16)

Article 19ter of Decree law 135/2009 converted into Law 166/2009 (hereinafter the 2009 law) laid down, inter alia, that the regional companies Caremar, Saremar and Toremar were transferred to the Regions of Campania, Sardinia and Tuscany, in view of their privatisation. It also laid down that new Conventions would be concluded between the Italian State and Tirrenia and Siremar by 31 December 2009. Likewise, the provision of regional services would be enshrined in new Public Service Contracts to be concluded between Saremar, Toremar, and Caremar and the respective Regions by 31 December 2009 and 28 February 2010 respectively. The new Conventions/new public service contracts would enter into force upon privatisation of each of the companies of the former Tirrenia Group (7).

ter

the 2009 law

new Conventions

new Public Service Contracts

7

| (17) | Saremar was thus transferred to RAS by virtue of the 2009 law. The company has traditionally operated purely local cabotage connections between Sardinia and the islands to the north-east and south-west of Sardinia, and an international connection with Corsica, under the initial Convention with the State. Saremar has not developed unsubsidised activities. |
| --- | --- |

(17)

Saremar was thus transferred to RAS by virtue of the 2009 law. The company has traditionally operated purely local cabotage connections between Sardinia and the islands to the north-east and south-west of Sardinia, and an international connection with Corsica, under the initial Convention with the State. Saremar has not developed unsubsidised activities.

| (18) | By virtue of Regional Law 18 of 26 July 2013, the publication of the call for tenders for the privatisation of Saremar was postponed to 31 December 2013. This Decision does not prejudge the position of the Commission on other measures in favour of Saremar nor on any potential State aid issues raised by the privatisation of the company. All remaining measures covered by the 2011 and 2012 Decisions, including the Bonus Sardo – Vacanza project, are currently being investigated under cases SA.32014, SA.32015 and SA.32016 and are therefore not covered by this Decision. |
| --- | --- |

(18)

By virtue of Regional Law 18 of 26 July 2013, the publication of the call for tenders for the privatisation of Saremar was postponed to 31 December 2013. This Decision does not prejudge the position of the Commission on other measures in favour of Saremar nor on any potential State aid issues raised by the privatisation of the company. All remaining measures covered by the 2011 and 2012 Decisions, including the Bonus Sardo – Vacanza project, are currently being investigated under cases SA.32014, SA.32015 and SA.32016 and are therefore not covered by this Decision.

2.2.   DETAILED DESCRIPTION OF THE MEASURES COVERED BY THIS DECISION

DETAILED DESCRIPTION OF THE MEASURES COVERED BY THIS DECISION

| (19) | Several measures have been adopted by RAS in 2011 and 2012 to promote tourism and regional development and ensure territorial continuity. According to RAS, those initiatives had been primarily justified by two significant developments on the market for transport services to the island in 2011. |
| --- | --- |

(19)

Several measures have been adopted by RAS in 2011 and 2012 to promote tourism and regional development and ensure territorial continuity. According to RAS, those initiatives had been primarily justified by two significant developments on the market for transport services to the island in 2011.

| (20) | First, although the parent company Tirrenia was put up for sale already in 2010, Compagnia Italiana di Navigazione (CIN) acquired the company and signed the new Convention only in July 2012. Presumably until the very date the new Convention was signed, it was uncertain whether maritime services between Sardinia to mainland Italy would continue to be subsidised and whether, under the new Convention with the buyer of Tirrenia, the scope of the public service would be reduced. |
| --- | --- |

(20)

First, although the parent company Tirrenia was put up for sale already in 2010, Compagnia Italiana di Navigazione (CIN) acquired the company and signed the new Convention only in July 2012. Presumably until the very date the new Convention was signed, it was uncertain whether maritime services between Sardinia to mainland Italy would continue to be subsidised and whether, under the new Convention with the buyer of Tirrenia, the scope of the public service would be reduced.

CIN

| (21) | Second, private companies operating routes between Sardinia and the mainland, were being investigated by the Italian National Competition Authority (NCA) on a potential violation of Article 101 TFEU, because of a significant increase in transport prices on certain routes between Sardinia and the mainland. The NCA concluded its proceedings on 11 June 2013 (8). The increase in prices of (passenger) transport services by the parties in the summer of 2011 was qualified as a concerted practice in violation of Article 101 TFEU. According to the NCA the infringement took place at least between September 2010 and end September 2011. |
| --- | --- |

(21)

Second, private companies operating routes between Sardinia and the mainland, were being investigated by the Italian National Competition Authority (NCA) on a potential violation of Article 101 TFEU, because of a significant increase in transport prices on certain routes between Sardinia and the mainland. The NCA concluded its proceedings on 11 June 2013 (8). The increase in prices of (passenger) transport services by the parties in the summer of 2011 was qualified as a concerted practice in violation of Article 101 TFEU. According to the NCA the infringement took place at least between September 2010 and end September 2011.

NCA

8

| (22) | On some of the measures adopted by RAS in this context the Commission has opened the formal investigation procedure by its 2012 Decision. In what follows, the Commission will present in detail the measures under investigation. |
| --- | --- |

(22)

On some of the measures adopted by RAS in this context the Commission has opened the formal investigation procedure by its 2012 Decision. In what follows, the Commission will present in detail the measures under investigation.

2.2.1.   COMPENSATION FOR THE OPERATION OF THE TWO ROUTES BETWEEN SARDINIA AND MAINLAND ITALY

2.2.1.1.   
  Legal framework

Legal framework

| (23) | RAS assumes that the operation by Saremar of two routes linking Sardinia to mainland Italy, namely Olbia (Golfo Aranci) – Civitavecchia and Vado Ligure — Porto Torres in 2011 and 2012, qualifies as SGEI, which was lawfully entrusted to the operator by means of several Regional Decisions (the entrustment acts) presented in more detail hereunder. |
| --- | --- |

(23)

RAS assumes that the operation by Saremar of two routes linking Sardinia to mainland Italy, namely Olbia (Golfo Aranci) – Civitavecchia and Vado Ligure — Porto Torres in 2011 and 2012, qualifies as SGEI, which was lawfully entrusted to the operator by means of several Regional Decisions (the entrustment acts) presented in more detail hereunder.

the entrustment acts

Regional Decision 20/57/EC of 26 April 2011

Regional Decision 20/57/EC of 26 April 2011

| (24) | According to RAS, private companies operating links to and from Sardinia increased prices to untenable levels in spring 2011. Regional Decision 20/57/EC of 26 April 2011 (hereinafter Decision 20/57/EC) recalled that technical discussions were underway with the main operators present on these routes since 1 March 2011 on possible ways ‘to stabilise fares at acceptable levels’ on the short, medium and long term. According to RAS, there was however no willingness among private operators to uphold RAS's call for ‘common efforts aiming to increase tourist flows’ by charging lower fares on these routes. |
| --- | --- |

(24)

According to RAS, private companies operating links to and from Sardinia increased prices to untenable levels in spring 2011. Regional Decision 20/57/EC of 26 April 2011 (hereinafter Decision 20/57/EC) recalled that technical discussions were underway with the main operators present on these routes since 1 March 2011 on possible ways ‘to stabilise fares at acceptable levels’ on the short, medium and long term. According to RAS, there was however no willingness among private operators to uphold RAS's call for ‘common efforts aiming to increase tourist flows’ by charging lower fares on these routes.

Decision 20/57/EC

| (25) | Given the significant drop in tourist demand and the concerns raised by the productive sectors requiring affordable connections to the mainland, RAS was faced with the need to take ‘urgent action to ensure a competitive alternative to fares charged by private operators’. It decided that Saremar was to start operation ‘on market terms’ of mainland and international connections ‘on the main touristic and commercial routes’ to and from Sardinia. Separate accounting would be kept so as to guarantee economic equilibrium, thereby balancing demand for transport services with the economic viability of the activity. |
| --- | --- |

(25)

Given the significant drop in tourist demand and the concerns raised by the productive sectors requiring affordable connections to the mainland, RAS was faced with the need to take ‘urgent action to ensure a competitive alternative to fares charged by private operators’. It decided that Saremar was to start operation ‘on market terms’ of mainland and international connections ‘on the main touristic and commercial routes’ to and from Sardinia. Separate accounting would be kept so as to guarantee economic equilibrium, thereby balancing demand for transport services with the economic viability of the activity.

| (26) | Saremar would verify in particular the possibility to start operation on a trial basis during 15 June 2011 and 15 September 2011 of at least two of the following connections (mixed services):






  (a) | North-East Sardinia (Olbia or Golfo Aranci) - Central-Southern Italy (Civitavecchia or Naples) and return; |
| --- | --- | --- |

(26)

Saremar would verify in particular the possibility to start operation on a trial basis during 15 June 2011 and 15 September 2011 of at least two of the following connections (mixed services):

(a)

North-East Sardinia (Olbia or Golfo Aranci) - Central-Southern Italy (Civitavecchia or Naples) and return;

| (b) | North-East Sardinia (Olbia or Golfo Aranci) - Central-Northern Italy (La Spezia, Carrara or Livorno) and return; |
| --- | --- |

(b)

North-East Sardinia (Olbia or Golfo Aranci) - Central-Northern Italy (La Spezia, Carrara or Livorno) and return;

| (c) | North-West Sardinia (Porto Torres) - Northern Italy (Genova or Savona) and return. |
| --- | --- |

(c)

North-West Sardinia (Porto Torres) - Northern Italy (Genova or Savona) and return.

| (27) | Saremar could also freely increase the number of international connections. |
| --- | --- |

(27)

Saremar could also freely increase the number of international connections.

Regional Decision 25/69/EC of 19 May 2011

Regional Decision 25/69/EC of 19 May 2011

| (28) | Regional Decision 25/69/EC of 19 May 2011 (Decision 25/69/EC) approved the tariff to be applied by Saremar for passengers and freight services on the Golfo Aranci – Civitavecchia route during 15 June 2011 to 15 September 2011. The route in question had been presumably identified as ‘among the most demanded routes.’ |
| --- | --- |

(28)

Regional Decision 25/69/EC of 19 May 2011 (Decision 25/69/EC) approved the tariff to be applied by Saremar for passengers and freight services on the Golfo Aranci – Civitavecchia route during 15 June 2011 to 15 September 2011. The route in question had been presumably identified as ‘among the most demanded routes.’

Decision 25/69/EC)

| (29) | Fares could be amended by the operator in order to ensure that the operation breaks-even and ensures highest customers' satisfaction. Any such modification should be notified in advance to RAS. Different rates applied in the high and low seasons. Fares would apply in the same way to residents and non-residents. |
| --- | --- |

(29)

Fares could be amended by the operator in order to ensure that the operation breaks-even and ensures highest customers' satisfaction. Any such modification should be notified in advance to RAS. Different rates applied in the high and low seasons. Fares would apply in the same way to residents and non-residents.

Regional Decision 27/4/EC of 1 June 2011

Regional Decision 27/4/EC of 1 June 2011

| (30) | Regional Decision 27/4/EC of 1 June 2011 (Decision 27/4/EC) approved the tariff to be applied by Saremar for passengers and freight services on the Vado Ligure — Porto Torres route from 22 June 2011 to 15 September 2011. |
| --- | --- |

(30)

Regional Decision 27/4/EC of 1 June 2011 (Decision 27/4/EC) approved the tariff to be applied by Saremar for passengers and freight services on the Vado Ligure — Porto Torres route from 22 June 2011 to 15 September 2011.

Decision 27/4/EC

| (31) | Moreover, it provided for a 15 % discount for Sardinian residents. Saremar could amend the fares in order to ensure that the operation breaks-even and ensures highest customers' satisfaction. |
| --- | --- |

(31)

Moreover, it provided for a 15 % discount for Sardinian residents. Saremar could amend the fares in order to ensure that the operation breaks-even and ensures highest customers' satisfaction.

Regional Decision 36/6/EC of 1 September 2011

Regional Decision 36/6/EC of 1 September 2011

| (32) | Regional Decision 36/6/EC of 1 September 2011 (Decision 36/6/EC) recalled that the increase in transport prices on the routes to the mainland took place in the wake of the sale of the former parent company Tirrenia (see recital 75). |
| --- | --- |

(32)

Regional Decision 36/6/EC of 1 September 2011 (Decision 36/6/EC) recalled that the increase in transport prices on the routes to the mainland took place in the wake of the sale of the former parent company Tirrenia (see recital 75).

Decision 36/6/EC

| (33) | In this sense, RAS would support the annulment of the sale procedure and the separation of the sale of Tirrenia from the public tendering procedure for the award of the new Convention and thus prevention of a de facto monopoly in maritime cabotage to and from Sardinia. Action would be taken to ensure the launch of open tender procedures for the imposition of public service obligations (PSOs) to select the best offer in terms of number of routes and ports, frequencies, speed, quality of the service and fares, for both passengers and freight. |
| --- | --- |

(33)

In this sense, RAS would support the annulment of the sale procedure and the separation of the sale of Tirrenia from the public tendering procedure for the award of the new Convention and thus prevention of a de facto monopoly in maritime cabotage to and from Sardinia. Action would be taken to ensure the launch of open tender procedures for the imposition of public service obligations (PSOs) to select the best offer in terms of number of routes and ports, frequencies, speed, quality of the service and fares, for both passengers and freight.

de facto

PSOs

| (34) | Interruption of operation by Saremar of the routes to the mainland would effectively restore the previous monopoly situation. On the longer term, the main objective at regional level would be to preserve effective competition on the cabotage market. This would be achieved by imposing PSOs on the main routes considered strategic for the island to those operators offering best conditions for the service. |
| --- | --- |

(34)

Interruption of operation by Saremar of the routes to the mainland would effectively restore the previous monopoly situation. On the longer term, the main objective at regional level would be to preserve effective competition on the cabotage market. This would be achieved by imposing PSOs on the main routes considered strategic for the island to those operators offering best conditions for the service.

| (35) | Decision 36/6/EC lays down that Saremar is to verify, on the basis of a business plan, the viability of operation on a trial basis for the period 30 September 2011 - 30 September 2012, of at least one of the following mixed routes: Olbia – Livorno, Porto Torres — Livorno or Cagliari – Piombino. |
| --- | --- |

(35)

Decision 36/6/EC lays down that Saremar is to verify, on the basis of a business plan, the viability of operation on a trial basis for the period 30 September 2011 - 30 September 2012, of at least one of the following mixed routes: Olbia – Livorno, Porto Torres — Livorno or Cagliari – Piombino.

| (36) | Likewise, Saremar would also resume the Golfo Aranci (or Olbia) – Civitavecchia and the Porto Torres — Vado Ligure (or Genova) lines from 15 May 2012 to 15 September 2012. The routes would be operated by means of two newly leased cruise ferries. |
| --- | --- |

(36)

Likewise, Saremar would also resume the Golfo Aranci (or Olbia) – Civitavecchia and the Porto Torres — Vado Ligure (or Genova) lines from 15 May 2012 to 15 September 2012. The routes would be operated by means of two newly leased cruise ferries.

| (37) | Decision 36/6/EC also laid down that Saremar would be recapitalised for an amount equal to its claim against Tirrenia in receivership (see recital 89 et seq). |
| --- | --- |

(37)

Decision 36/6/EC also laid down that Saremar would be recapitalised for an amount equal to its claim against Tirrenia in receivership (see recital 89 et seq).

Regional Decision 48/65/EC of 1 December 2011

Regional Decision 48/65/EC of 1 December 2011

| (38) | Acting in accordance with Decision 36/6/EC, RAS and Saremar examined the viability of operating one of the Olbia – Livorno, Porto Torres — Livorno or Cagliari – Piombino mixed lines during 30 September 2011 - 30 September 2012. In particular, current and projected demand for mixed services, fares, forecasted costs and revenues, and profitability of alternative services were assessed. The analysis revealed the following:






  (a) | on the Cagliari – Piombino and Porto Torres – Livorno routes, a high risk of economic imbalance, fluctuation of demand and competitive pressure of substitutable services; |
| --- | --- | --- |

(38)

Acting in accordance with Decision 36/6/EC, RAS and Saremar examined the viability of operating one of the Olbia – Livorno, Porto Torres — Livorno or Cagliari – Piombino mixed lines during 30 September 2011 - 30 September 2012. In particular, current and projected demand for mixed services, fares, forecasted costs and revenues, and profitability of alternative services were assessed. The analysis revealed the following:

(a)

on the Cagliari – Piombino and Porto Torres – Livorno routes, a high risk of economic imbalance, fluctuation of demand and competitive pressure of substitutable services;

| (b) | on the Olbia – Livorno route, although competitive pressure on prices was probable, reaching economic balance was nonetheless possible; |
| --- | --- |

(b)

on the Olbia – Livorno route, although competitive pressure on prices was probable, reaching economic balance was nonetheless possible;

| (c) | on the Olbia — Civitavecchia route, economic balance could be reached. |
| --- | --- |

(c)

on the Olbia — Civitavecchia route, economic balance could be reached.

| (39) | Decision 36/6/EC notes that the ‘obligation of maintaining economic balance, in order to avoid granting incompatible state aids, does not allow in the immediate the start-up of other routes’. The operation of routes which on the short term presented good viability prospects and the start-up of high season lines, already tested positively during the trial period, was considered necessary. |
| --- | --- |

(39)

Decision 36/6/EC notes that the ‘obligation of maintaining economic balance, in order to avoid granting incompatible state aids, does not allow in the immediate the start-up of other routes’. The operation of routes which on the short term presented good viability prospects and the start-up of high season lines, already tested positively during the trial period, was considered necessary.

| (40) | Consequently, Saremar was instructed to immediately activate the Olbia -Civitavecchia mixed line. The route would be operated daily by means of the ferries employed by Saremar in 2011. The low season fare charged by Saremar in 2011 was approved as stardard fare, which Saremar was entitled to amend to take due account of demand and ensure the objective of economic balance. |
| --- | --- |

(40)

Consequently, Saremar was instructed to immediately activate the Olbia -Civitavecchia mixed line. The route would be operated daily by means of the ferries employed by Saremar in 2011. The low season fare charged by Saremar in 2011 was approved as stardard fare, which Saremar was entitled to amend to take due account of demand and ensure the objective of economic balance.

| (41) | At least three high capacity cruise ferries would be leased to improve capacity on the Olbia – Civitavecchia and Porto Torres – Vado Ligure (or Genova) routes from May to September 2012. |
| --- | --- |

(41)

At least three high capacity cruise ferries would be leased to improve capacity on the Olbia – Civitavecchia and Porto Torres – Vado Ligure (or Genova) routes from May to September 2012.

| (42) | Saremar would define a standard fare for all lines, irrespective of the season, to allow the company to reach the twofold objective of economic balance of operation and highest customers' satisfaction. |
| --- | --- |

(42)

Saremar would define a standard fare for all lines, irrespective of the season, to allow the company to reach the twofold objective of economic balance of operation and highest customers' satisfaction.

Regional Decision 12/28/EC of 20 March 2012

Regional Decision 12/28/EC of 20 March 2012

| (43) | By Regional Decision 12/28/EC of 20 March 2012 (Decision 12/28/EC), RAS takes note of Saremar's proposal of a tariff for the 2012 summer season on the Olbia – Civitavecchia route, based on a market inquiry carried out by the company. |
| --- | --- |

(43)

By Regional Decision 12/28/EC of 20 March 2012 (Decision 12/28/EC), RAS takes note of Saremar's proposal of a tariff for the 2012 summer season on the Olbia – Civitavecchia route, based on a market inquiry carried out by the company.

Decision 12/28/EC

| (44) | The fare would distinguish between the low season, weekend and the high season. As concerns the fare applicable in the high season (August), three alternatives were proposed by Saremar, namely to maintain the level of the 2011 high season fare, to increase by EUR 5 or alternatively EUR 10 the fare for ‘posto letto’. |
| --- | --- |

(44)

The fare would distinguish between the low season, weekend and the high season. As concerns the fare applicable in the high season (August), three alternatives were proposed by Saremar, namely to maintain the level of the 2011 high season fare, to increase by EUR 5 or alternatively EUR 10 the fare for ‘posto letto’.

posto letto

| (45) | Decision 12/28/EC empowers Saremar to adopt among the proposed fares the one which best balances the public interest objectives with the necessity of ensuring economic and financial balance of the operation. |
| --- | --- |

(45)

Decision 12/28/EC empowers Saremar to adopt among the proposed fares the one which best balances the public interest objectives with the necessity of ensuring economic and financial balance of the operation.

Regional Decision 22/14/EC of 22 May 2012

Regional Decision 22/14/EC of 22 May 2012

| (46) | By Regional Decision 22/14/EC of 22 May 2012 (Decision 22/14/EC) RAS takes note of Saremar's proposal of a tariff for the 2012 summer season (1 June 2012 – 15 September 2012) on the Porto Torres – Vado Ligure route, based on a market inquiry carried out by the company. |
| --- | --- |

(46)

By Regional Decision 22/14/EC of 22 May 2012 (Decision 22/14/EC) RAS takes note of Saremar's proposal of a tariff for the 2012 summer season (1 June 2012 – 15 September 2012) on the Porto Torres – Vado Ligure route, based on a market inquiry carried out by the company.

Decision 22/14/EC

| (47) | The company advised to set different fares for the low (1 to 14 June and 3 to 15 September), medium (15 June to 13 July) and high season (14 July to 2 September). A 15 % discount would apply to Sardinian residents. |
| --- | --- |

(47)

The company advised to set different fares for the low (1 to 14 June and 3 to 15 September), medium (15 June to 13 July) and high season (14 July to 2 September). A 15 % discount would apply to Sardinian residents.

| (48) | The Decision does not however specify the precise fares to be charged by Saremar on the route. The company was instructed to constantly monitor the development of the market and adjust the fares so as to best balance public interest objectives with the requirement of pursuing economic and financial balance of the operation. In addition, RAS took note of the lease of the Coraggio ferry to be employed on the route during 1 June to 15 September 2012. |
| --- | --- |

(48)

The Decision does not however specify the precise fares to be charged by Saremar on the route. The company was instructed to constantly monitor the development of the market and adjust the fares so as to best balance public interest objectives with the requirement of pursuing economic and financial balance of the operation. In addition, RAS took note of the lease of the Coraggio ferry to be employed on the route during 1 June to 15 September 2012.

Regional Law 15 of 7 August 2012

Regional Law 15 of 7 August 2012

| (49) | Regional Law 15 of 7 August 2012 (hereinafter the Regional Law) lays down, inter alia, the immediate publication (within 60 days of the date of entry into force of the Regional Law) of the call for tenders for the privatisation of Saremar. |
| --- | --- |

(49)

Regional Law 15 of 7 August 2012 (hereinafter the Regional Law) lays down, inter alia, the immediate publication (within 60 days of the date of entry into force of the Regional Law) of the call for tenders for the privatisation of Saremar.

the Regional Law

| (50) | The Regional Law also lays down that RAS would cover the potential deficit in the operation by Saremar of the links with the mainland. A subsidy in the amount of EUR 10 million was authorised to that end. |
| --- | --- |

(50)

The Regional Law also lays down that RAS would cover the potential deficit in the operation by Saremar of the links with the mainland. A subsidy in the amount of EUR 10 million was authorised to that end.

2.2.1.2.   
  Duration

Duration

| (51) | Saremar was entrusted with the operation of the two routes linking Sardinia to mainland Italy by means of the acts detailed in the table below.

  Table 1


  Regional Decisions entrusting Saremar with the operation of the two routes | Golfo Aranci (Olbia) – Civitavecchia | Vado Ligure — Porto Torres |
| --- | --- | --- | --- |
| 2011 summer season | Decision 25/69/EC of 19 May 2011
  (15 June to 15 September 2011) | Decision 27/4/EC of 1 June 2011
  (22 June to 15 September 2011) |
| 2012 winter season | Decision 48/65/EC of 1 December 2011
  (immediate activation of the line) | Not operated |
| 2012 summer season | Decision 36/6/EC of 1 September 2011
  (15 May to 15 September 2012) | Decision 36/6/EC of 1 September 2011
  (15 May to 15 September 2012) |

(51)

Saremar was entrusted with the operation of the two routes linking Sardinia to mainland Italy by means of the acts detailed in the table below.

Table 1

Table 1

Regional Decisions entrusting Saremar with the operation of the two routes

Regional Decisions entrusting Saremar with the operation of the two routes

Golfo Aranci (Olbia) – Civitavecchia

Vado Ligure — Porto Torres

2011 summer season

Decision 25/69/EC of 19 May 2011

(15 June to 15 September 2011)

Decision 27/4/EC of 1 June 2011

(22 June to 15 September 2011)

2012 winter season

Decision 48/65/EC of 1 December 2011

(immediate activation of the line)

Not operated

Not operated

2012 summer season

Decision 36/6/EC of 1 September 2011

(15 May to 15 September 2012)

Decision 36/6/EC of 1 September 2011

(15 May to 15 September 2012)

| (52) | However, the pre-approved schedule of operation has not ultimately been observed in full. |
| --- | --- |

(52)

However, the pre-approved schedule of operation has not ultimately been observed in full.

| (53) | In particular, in 2011 Saremar operated the Civitavecchia — Olbia (Golfo Aranci) route daily during 15 June – 15 September 2011. Moby, Tirrenia, Grandi Navi Veloci (GNV) and Forship (Sardinia Ferries) were also operating the route at that time. |
| --- | --- |

(53)

In particular, in 2011 Saremar operated the Civitavecchia — Olbia (Golfo Aranci) route daily during 15 June – 15 September 2011. Moby, Tirrenia, Grandi Navi Veloci (GNV) and Forship (Sardinia Ferries) were also operating the route at that time.

Civitavecchia — Olbia (Golfo Aranci)

| (54) | In 2012, Saremar operated the route from 16 January 2012 to 15 September 2012. During the summer period Saremar operated the route daily from 1 June 2012 to 15 September 2012 (rather than from 15 May 2012 as laid down by Decision 36/6/EC). Moby and CIN/Tirrenia were present on the route in the summer period. During the winter period (16 January 2012 to 30 May 2012) Saremar operated the route 6 days/week (9). Tirrenia also operated the route subject to public service obligations under the initial Convention. No private operator was present on the route in the winter season. |
| --- | --- |

(54)

In 2012, Saremar operated the route from 16 January 2012 to 15 September 2012. During the summer period Saremar operated the route daily from 1 June 2012 to 15 September 2012 (rather than from 15 May 2012 as laid down by Decision 36/6/EC). Moby and CIN/Tirrenia were present on the route in the summer period. During the winter period (16 January 2012 to 30 May 2012) Saremar operated the route 6 days/week (9). Tirrenia also operated the route subject to public service obligations under the initial Convention. No private operator was present on the route in the winter season.

9

| (55) | Saremar operated the Vado Ligure – Porto Torres route 4 days/week (10) from 22 June 2011 to 15 September 2011 and from 1 June 2012 (rather than from 15 May 2012 as laid down by Decision 36/6/EC) to 15 September 2012. Moby, Tirrenia and GNV were present on the route in 2011. Moby, CIN/Tirrenia and GNV were present on the route in 2012. |
| --- | --- |

(55)

Saremar operated the Vado Ligure – Porto Torres route 4 days/week (10) from 22 June 2011 to 15 September 2011 and from 1 June 2012 (rather than from 15 May 2012 as laid down by Decision 36/6/EC) to 15 September 2012. Moby, Tirrenia and GNV were present on the route in 2011. Moby, CIN/Tirrenia and GNV were present on the route in 2012.

Vado Ligure – Porto Torres

10

| (56) | Service on both routes was discontinued on 15 September 2012. |
| --- | --- |

(56)

Service on both routes was discontinued on 15 September 2012.

2.2.1.3.   
  Public service obligations

Public service obligations

| (57) | RAS claims that PSOs have been imposed in respect of the fares charged by Saremar on the two routes to the mainland. The underlying justification for the imposition of the PSOs was the increase in prices to the detriment of the Sardinian community as a result of the anticompetitive agreement concluded by private operators on the routes in question. |
| --- | --- |

(57)

RAS claims that PSOs have been imposed in respect of the fares charged by Saremar on the two routes to the mainland. The underlying justification for the imposition of the PSOs was the increase in prices to the detriment of the Sardinian community as a result of the anticompetitive agreement concluded by private operators on the routes in question.

| (58) | The specific provisions on fares in the entrustment acts are detailed hereunder:






  (a) | Decision 20/57/EC has no explicit provision on fares to be charged by Saremar on the routes proposed; |
| --- | --- | --- |

(58)

The specific provisions on fares in the entrustment acts are detailed hereunder:

(a)

Decision 20/57/EC has no explicit provision on fares to be charged by Saremar on the routes proposed;

| (b) | Decision 25/69/EC approved the tariff to be applied by Saremar on the Golfo Aranci – Civitavecchia route from 15 June 2011 to 15 September 2011. Fares could be amended by the operator, with prior notice to RAS, in order to ensure that the operation breaks-even and ensures highest customers' satisfaction; |
| --- | --- |

(b)

Decision 25/69/EC approved the tariff to be applied by Saremar on the Golfo Aranci – Civitavecchia route from 15 June 2011 to 15 September 2011. Fares could be amended by the operator, with prior notice to RAS, in order to ensure that the operation breaks-even and ensures highest customers' satisfaction;

| (c) | Decision 27/4/EC approved the tariff to be applied by Saremar for mixed (passengers and freight) services on the Vado Ligure — Porto Torres route from 22 June 2011 to 15 September 2011. A 15 % discount would apply for Sardinian residents. Fares could be adjusted by the operator, with prior notice to RAS, in order to ensure that the operation breaks-even and ensures highest customers' satisfaction; |
| --- | --- |

(c)

Decision 27/4/EC approved the tariff to be applied by Saremar for mixed (passengers and freight) services on the Vado Ligure — Porto Torres route from 22 June 2011 to 15 September 2011. A 15 % discount would apply for Sardinian residents. Fares could be adjusted by the operator, with prior notice to RAS, in order to ensure that the operation breaks-even and ensures highest customers' satisfaction;

| (d) | Decision 36/6/EC does not refer to fares; |
| --- | --- |

(d)

Decision 36/6/EC does not refer to fares;

| (e) | Decision 48/65/EC instructed Saremar to immediately resume operation of the Olbia – Civitavecchia route, adopting as standard fare the low season fare charged by Saremar in 2011. Such fare could be adjusted by Saremar subject to prior notification to RAS to take due account of actual demand and ensure the objective of economic balance; |
| --- | --- |

(e)

Decision 48/65/EC instructed Saremar to immediately resume operation of the Olbia – Civitavecchia route, adopting as standard fare the low season fare charged by Saremar in 2011. Such fare could be adjusted by Saremar subject to prior notification to RAS to take due account of actual demand and ensure the objective of economic balance;

| (f) | Decision 12/28/EC approves Saremar's proposal to apply different fares in summer 2012 on the Olbia – Civitavecchia route, distinguishing between the low season (working days of June and July), week-end and high season (August) and takes note of the three alternatives proposed by Saremar as concerns the fare applicable in the high season. The Regional Decision did not specify the precise fares which had been proposed by the operator. Nor did RAS decide on one of the three alternative rates proposed by Saremar for the high season. Rather, RAS instructed Saremar to implement the fare which best balances the public interest with the economic viability objective. According to Decision 12/28/EC, the standard fare laid down by Decision 48/65/EC would be maintained by Saremar until end April 2012; |
| --- | --- |

(f)

Decision 12/28/EC approves Saremar's proposal to apply different fares in summer 2012 on the Olbia – Civitavecchia route, distinguishing between the low season (working days of June and July), week-end and high season (August) and takes note of the three alternatives proposed by Saremar as concerns the fare applicable in the high season. The Regional Decision did not specify the precise fares which had been proposed by the operator. Nor did RAS decide on one of the three alternative rates proposed by Saremar for the high season. Rather, RAS instructed Saremar to implement the fare which best balances the public interest with the economic viability objective. According to Decision 12/28/EC, the standard fare laid down by Decision 48/65/EC would be maintained by Saremar until end April 2012;

| (g) | Decision 22/14/EC approves Saremar's proposal to apply different fares in the low (first half of June and first half of September), medium (mid-June to mid-July) and high (mid-July to 2 September) season 2012 on the Porto Torres – Vado Ligure route. The Regional Decision did not specify the precise fares which had been proposed by the operator. It lay down however that a 15 % discount would apply to Sardinian residents. |
| --- | --- |

(g)

Decision 22/14/EC approves Saremar's proposal to apply different fares in the low (first half of June and first half of September), medium (mid-June to mid-July) and high (mid-July to 2 September) season 2012 on the Porto Torres – Vado Ligure route. The Regional Decision did not specify the precise fares which had been proposed by the operator. It lay down however that a 15 % discount would apply to Sardinian residents.

| (59) | As concerns operation of the two routes in 2012, in the course of the investigation RAS submitted to the Commission the letters by which Saremar communicated the fares to be charged on the routes in 2012, formally adopted by RAS by Decisions 12/28/EC and 22/14/EC. As concerns the Olbia – Civitavecchia route, Saremar informed that the routes would be operated concomitantly by Tirrenia, Moby and GNV, at different fares dependant on the season. Saremar also confirmed that among those operators Tirrenia offered the best prices. The letter details the fares applicable on the route in summer 2012 in the low, week-end and high season, with three proposals for the high season (one maintaining the 2011 tariff, the second and the third reflecting a EUR 5 and 10 increase, respectively, in the price per cabin place) and confirms that, as in 2011, no reduced fare would apply to residents. Saremar also confirms that its tariff proposal is based on a benchmark with Tirrenia's fares. For the Porto Torres – Vado Ligure route, Saremar informed that the start of operation of the services in 2012 was decided based on the positive results registered in 2011. A moderate increase in fares in the medium and high seasons was proposed, which would allow the company to break-even. |
| --- | --- |

(59)

As concerns operation of the two routes in 2012, in the course of the investigation RAS submitted to the Commission the letters by which Saremar communicated the fares to be charged on the routes in 2012, formally adopted by RAS by Decisions 12/28/EC and 22/14/EC. As concerns the Olbia – Civitavecchia route, Saremar informed that the routes would be operated concomitantly by Tirrenia, Moby and GNV, at different fares dependant on the season. Saremar also confirmed that among those operators Tirrenia offered the best prices. The letter details the fares applicable on the route in summer 2012 in the low, week-end and high season, with three proposals for the high season (one maintaining the 2011 tariff, the second and the third reflecting a EUR 5 and 10 increase, respectively, in the price per cabin place) and confirms that, as in 2011, no reduced fare would apply to residents. Saremar also confirms that its tariff proposal is based on a benchmark with Tirrenia's fares. For the Porto Torres – Vado Ligure route, Saremar informed that the start of operation of the services in 2012 was decided based on the positive results registered in 2011. A moderate increase in fares in the medium and high seasons was proposed, which would allow the company to break-even.

| (60) | For the sake of completion, the Commission notes that Decision 48/65/EC on the start-up of the Olbia — Civitavecchia route in January 2012 mentions that Saremar would operate the route daily by means of cruise ferries. An examination of the entrustment acts shows that no other binding condition concerning the operation of the two routes (for instance concerning frequency) other than the provision of mixed (passenger and freight) services has been imposed on Saremar. Nor have the Italian authorities submitted to the Commission, in the course of the formal investigation procedure, any evidence that other requirements have been imposed by other legal instruments beyond those laid down in the abovementioned entrustment acts. |
| --- | --- |

(60)

For the sake of completion, the Commission notes that Decision 48/65/EC on the start-up of the Olbia — Civitavecchia route in January 2012 mentions that Saremar would operate the route daily by means of cruise ferries. An examination of the entrustment acts shows that no other binding condition concerning the operation of the two routes (for instance concerning frequency) other than the provision of mixed (passenger and freight) services has been imposed on Saremar. Nor have the Italian authorities submitted to the Commission, in the course of the formal investigation procedure, any evidence that other requirements have been imposed by other legal instruments beyond those laid down in the abovementioned entrustment acts.

2.2.1.4.   
  Compensation

Compensation

| (61) | None of the entrustment acts referred to a compensation to be granted to Saremar for the operation of the two routes to the mainland in 2011/2012. On the contrary, based on the provisions of the acts in question, the services were to be provided on commercial terms and Saremar was given a large margin of manoeuvre to adjust the level of fares in order to ensure that the two routes break even. |
| --- | --- |

(61)

None of the entrustment acts referred to a compensation to be granted to Saremar for the operation of the two routes to the mainland in 2011/2012. On the contrary, based on the provisions of the acts in question, the services were to be provided on commercial terms and Saremar was given a large margin of manoeuvre to adjust the level of fares in order to ensure that the two routes break even.

| (62) | A subsidy in the amount of EUR 10 million from the 2012 regional budget was authorised by Regional Law 15 of 7 August 2012 to cover ‘the potential deficit’ in the operation by Saremar of the connections with the mainland. Based on publicly available information (11) the compensation was effectively paid to Saremar in two instalments on 6 November 2012 and 3 December 2012. |
| --- | --- |

(62)

A subsidy in the amount of EUR 10 million from the 2012 regional budget was authorised by Regional Law 15 of 7 August 2012 to cover ‘the potential deficit’ in the operation by Saremar of the connections with the mainland. Based on publicly available information (11) the compensation was effectively paid to Saremar in two instalments on 6 November 2012 and 3 December 2012.

the potential deficit

11

| (63) | According to the information received in the course of the investigation, Saremar recorded a EUR 214 000 loss in 2011 and a EUR 13 440 220 loss in 2012 in the operation of the two routes. |
| --- | --- |

(63)

According to the information received in the course of the investigation, Saremar recorded a EUR 214 000 loss in 2011 and a EUR 13 440 220 loss in 2012 in the operation of the two routes.

2.2.1.5.   
  Competitive situation on the routes

Competitive situation on the routes

| (64) | The competitive situation on the routes linking Sardinia to mainland Italy has altered quite significantly during 2011-2012. |
| --- | --- |

(64)

The competitive situation on the routes linking Sardinia to mainland Italy has altered quite significantly during 2011-2012.

| (65) | Four private operators were present on routes to and from Sardinia in spring 2011, in addition to the public operator Tirrenia: Moby, Forship, SNAV (12) and GNV. |
| --- | --- |

(65)

Four private operators were present on routes to and from Sardinia in spring 2011, in addition to the public operator Tirrenia: Moby, Forship, SNAV (12) and GNV.

12

| (66) | Moby is controlled by Onorato Partecipazioni S.r.l. (hereinafter Onorato Partecipazioni). Moby is active on the market of maritime transport services for passengers and freight in the Mediterranean Sea. |
| --- | --- |

(66)

Moby is controlled by Onorato Partecipazioni S.r.l. (hereinafter Onorato Partecipazioni). Moby is active on the market of maritime transport services for passengers and freight in the Mediterranean Sea.

Onorato Partecipazioni

| (67) | GNV is a private operator jointly held by Marinvest, a holding company of a group of undertakings active in maritime transport, and Investitori Associati SGR. The company operates numerous routes in the Mediterranean. |
| --- | --- |

(67)

GNV is a private operator jointly held by Marinvest, a holding company of a group of undertakings active in maritime transport, and Investitori Associati SGR. The company operates numerous routes in the Mediterranean.

| (68) | SNAV is entirely controlled by Marinvest and operates almost exclusively passenger services on various routes in the Mediterranean. |
| --- | --- |

(68)

SNAV is entirely controlled by Marinvest and operates almost exclusively passenger services on various routes in the Mediterranean.

| (69) | Forship, controlled by the French company Lotta Maritime S.A., provides passenger and vehicle transport services in the Mediterranean, in particular to and from Sardinia, using the Corsica Ferries and Sardinia Ferries brands. |
| --- | --- |

(69)

Forship, controlled by the French company Lotta Maritime S.A., provides passenger and vehicle transport services in the Mediterranean, in particular to and from Sardinia, using the Corsica Ferries and Sardinia Ferries brands.

| (70) | In May 2011 the operators (all but Tirrenia) were investigated by the NCA on a potential violation of Article 101 TFEU concerning the operation of routes to mainland Italy, including the two routes operated by Saremar during 2011-2012. The NCA concluded its proceedings on 11 June 2013 (13). It decided that the increase in prices of passenger transport services by the parties represented a concerted practice in violation of Article 101 TFEU. The infringement took place at least between September 2010 and end September 2011. |
| --- | --- |

(70)

In May 2011 the operators (all but Tirrenia) were investigated by the NCA on a potential violation of Article 101 TFEU concerning the operation of routes to mainland Italy, including the two routes operated by Saremar during 2011-2012. The NCA concluded its proceedings on 11 June 2013 (13). It decided that the increase in prices of passenger transport services by the parties represented a concerted practice in violation of Article 101 TFEU. The infringement took place at least between September 2010 and end September 2011.

13

| (71) | According to the NCA, Moby (up to 40 %) and Tirrenia (up to 35 %) were the main operators on the Civitavecchia — Olbia (Golfo Aranci) route in 2009-2010 in terms of passengers carried. In 2011 Tirrenia increased its market share to the detriment of Moby, whereas Saremar gained less than 10 % of the market (14). The NCA noted that on this route:






  — | Moby had recorded losses (of less than EUR 1 million) during 2008 - 2010 and a surplus in 2011; |
| --- | --- | --- |

(71)

According to the NCA, Moby (up to 40 %) and Tirrenia (up to 35 %) were the main operators on the Civitavecchia — Olbia (Golfo Aranci) route in 2009-2010 in terms of passengers carried. In 2011 Tirrenia increased its market share to the detriment of Moby, whereas Saremar gained less than 10 % of the market (14). The NCA noted that on this route:

14

—

Moby had recorded losses (of less than EUR 1 million) during 2008 - 2010 and a surplus in 2011;

| — | SNAV had recorded losses during 2008 – 2010, albeit on a downward trend; |
| --- | --- |

—

SNAV had recorded losses during 2008 – 2010, albeit on a downward trend;

| — | negative results had also been registered by Forship during 2008 - 2011. |
| --- | --- |

—

negative results had also been registered by Forship during 2008 - 2011.

| (72) | On the Genova (Vado Ligure) – Porto Torres route, Moby, Tirrenia and GNV had a similar market share in 2009-2010. Likewise, in 2011 Tirrenia's market share increased whereas Moby's dropped. GNV reduced by more than half its presence on the market. Saremar captured less than 10 % of the market. The NCA also noted that:






  — | Moby improved results from a slight loss in 2008 to profits in 2011; |
| --- | --- | --- |

(72)

On the Genova (Vado Ligure) – Porto Torres route, Moby, Tirrenia and GNV had a similar market share in 2009-2010. Likewise, in 2011 Tirrenia's market share increased whereas Moby's dropped. GNV reduced by more than half its presence on the market. Saremar captured less than 10 % of the market. The NCA also noted that:

—

Moby improved results from a slight loss in 2008 to profits in 2011;

| — | GNV registered significant losses on the route during 2008 - 2010. |
| --- | --- |

—

GNV registered significant losses on the route during 2008 - 2010.

| (73) | Private operators had in the course of the NCA investigation justified the increase in prices in the 2011 summer season (generally superior to 85 % as compared to 2010 on the Olbia – Civitavecchia route and 75 % on the Genova — Porto Torres route) on account of the significant increase in fuel costs. According to the NCA, a more moderate increase in prices was implemented by Tirrenia, namely up to 30 % on the Civitavecchia — Golfo Aranci route and up to 15 % on the Genova — Porto Torres route. |
| --- | --- |

(73)

Private operators had in the course of the NCA investigation justified the increase in prices in the 2011 summer season (generally superior to 85 % as compared to 2010 on the Olbia – Civitavecchia route and 75 % on the Genova — Porto Torres route) on account of the significant increase in fuel costs. According to the NCA, a more moderate increase in prices was implemented by Tirrenia, namely up to 30 % on the Civitavecchia — Golfo Aranci route and up to 15 % on the Genova — Porto Torres route.

| (74) | In addition, according to the NCA Decision, two agreements were signed between Moby and GNV in spring 2011. In particular, a code-sharing agreement was signed by the two companies on the Civitavecchia – Olbia route for the period April – December 2011, by which the two companies jointly operated the route and participated in the results in accordance with a predetermined percentage, irrespective of the tickets sold. On the basis of a second agreement, GNV could sell Moby tickets on the Genova – Porto Torres route during June — December 2011. In effect, during the reference period, GNV directed to Moby demand which it could not satisfy itself, to the detriment of Tirrenia and Saremar. On the basis of those agreements, the NCA concluded that the two companies had no incentive to compete on prices on the routes in question. Similar agreements have been put in place by the same companies in 2012. |
| --- | --- |

(74)

In addition, according to the NCA Decision, two agreements were signed between Moby and GNV in spring 2011. In particular, a code-sharing agreement was signed by the two companies on the Civitavecchia – Olbia route for the period April – December 2011, by which the two companies jointly operated the route and participated in the results in accordance with a predetermined percentage, irrespective of the tickets sold. On the basis of a second agreement, GNV could sell Moby tickets on the Genova – Porto Torres route during June — December 2011. In effect, during the reference period, GNV directed to Moby demand which it could not satisfy itself, to the detriment of Tirrenia and Saremar. On the basis of those agreements, the NCA concluded that the two companies had no incentive to compete on prices on the routes in question. Similar agreements have been put in place by the same companies in 2012.

| (75) | Through the acquisition of Tirrenia, CIN signed on 18 July 2012 the new Convention with the Italian State (see recital 16) by which the company was entrusted with the discharge of PSOs, inter alia, on the Civitavecchia — Olbia and Genova — Porto Torres routes. CIN is a consortium which, at the time Tirrenia was put up for sale, consisted of Moby, SNAV and GNV (the last two via Marinvest) and Grimaldi Compagnia di Navigazione, i.e. the main competitors of Tirrenia on the routes traditionally operated under the public service regime (15). |
| --- | --- |

(75)

Through the acquisition of Tirrenia, CIN signed on 18 July 2012 the new Convention with the Italian State (see recital 16) by which the company was entrusted with the discharge of PSOs, inter alia, on the Civitavecchia — Olbia and Genova — Porto Torres routes. CIN is a consortium which, at the time Tirrenia was put up for sale, consisted of Moby, SNAV and GNV (the last two via Marinvest) and Grimaldi Compagnia di Navigazione, i.e. the main competitors of Tirrenia on the routes traditionally operated under the public service regime (15).

15

| (76) | The acquisition by CIN of Tirrenia was notified to the Commission and on 18 January 2012 the Commission decided to initiate proceedings pursuant to Article 6(1)(c) of Council Regulation (EC) No 139/2004 (16). The operation was subsequently withdrawn by the parties and a new operation, with a new shareholding of CIN, was notified to the NCA. The new merger was approved by the NCA by a conditional decision on 21 June 2012 (17). |
| --- | --- |

(76)

The acquisition by CIN of Tirrenia was notified to the Commission and on 18 January 2012 the Commission decided to initiate proceedings pursuant to Article 6(1)(c) of Council Regulation (EC) No 139/2004 (16). The operation was subsequently withdrawn by the parties and a new operation, with a new shareholding of CIN, was notified to the NCA. The new merger was approved by the NCA by a conditional decision on 21 June 2012 (17).

16

17

| (77) | GNV and Forship ceased operation of the Civitavecchia — Olbia route in 2012. By its comments in the course of the investigation, GNV claimed that its exit from the market had been the direct result of the support granted by RAS to Saremar, which enabled the latter to practice fares below costs (see recital 135). |
| --- | --- |

(77)

GNV and Forship ceased operation of the Civitavecchia — Olbia route in 2012. By its comments in the course of the investigation, GNV claimed that its exit from the market had been the direct result of the support granted by RAS to Saremar, which enabled the latter to practice fares below costs (see recital 135).

| (78) | The competitive situation on the two routes at the moment of entry on the market of Saremar was as follows:

  Table 2


  Competitive situation on the routes | Golfo Aranci (Olbia) – Civitavecchia | Vado Ligure — Porto Torres |
| --- | --- | --- | --- |
| 2011 summer season (June – September) | Moby, Tirrenia, GNV (18), Forship (Sardinia Ferries) | Moby, Tirrenia, GNV |
| 2012 winter season
  (January – mid May) | CIN/Tirrenia | Not operated |
| 2012 summer season
  (mid May – September) | Moby, CIN/Tirrenia | Moby, CIN/Tirrenia, GNV |

(78)

The competitive situation on the two routes at the moment of entry on the market of Saremar was as follows:

Table 2

Table 2

Competitive situation on the routes

Competitive situation on the routes

Golfo Aranci (Olbia) – Civitavecchia

Vado Ligure — Porto Torres

2011 summer season (June – September)

Moby, Tirrenia, GNV (18), Forship (Sardinia Ferries)

18

Moby, Tirrenia, GNV

2012 winter season

(January – mid May)

CIN/Tirrenia

Not operated

Not operated

2012 summer season

(mid May – September)

Moby, CIN/Tirrenia

Moby, CIN/Tirrenia, GNV

| (79) | By Decision adopted on 18 June 2013 (19), the NCA opened the formal investigation proceedings on a potential violation by Moby and CIN of the conditions imposed by the Decision of the NCA authorising the Tirrenia/CIN merger, inter alia, the condition to limit price increases (as compared to Moby's fares in 2009) on three routes linking Sardinia to the mainland, including the two routes under investigation in the present case, to the increase in fuel costs. |
| --- | --- |

(79)

By Decision adopted on 18 June 2013 (19), the NCA opened the formal investigation proceedings on a potential violation by Moby and CIN of the conditions imposed by the Decision of the NCA authorising the Tirrenia/CIN merger, inter alia, the condition to limit price increases (as compared to Moby's fares in 2009) on three routes linking Sardinia to the mainland, including the two routes under investigation in the present case, to the increase in fuel costs.

19

2.2.2.   PROMOTIONAL ACTIVITIES

| (80) | By virtue of Regional Decision 20/58/EC of 26 April 2011 (Decision 20/58/EC), Agenzia Sardegna Promozione (hereinafter the Agency) would finance the marketing of the so-called Bonus Sardo — Vacanza by EUR 3 million (VAT included) (20). |
| --- | --- |

(80)

By virtue of Regional Decision 20/58/EC of 26 April 2011 (Decision 20/58/EC), Agenzia Sardegna Promozione (hereinafter the Agency) would finance the marketing of the so-called Bonus Sardo — Vacanza by EUR 3 million (VAT included) (20).

Agenzia Sardegna Promozione

the Agency

20

| (81) | By Regional Decision 25/53/EC of 19 May 2011 (Decision 25/53/EC), RAS entrusted Saremar with the task of carrying out promotional activities essentially consisting in displaying logos and advertising on Saremar vessels with the aim to promote Sardinia as tourist destination, without however explicitly promoting the Bonus Sardo – Vacanza project. Decision 25/53/EC also instructed the Agency to allocate to Saremar the amount of EUR 3 million provided for by Decision 20/58/EC, with an immediate advance payment of 80 %. |
| --- | --- |

(81)

By Regional Decision 25/53/EC of 19 May 2011 (Decision 25/53/EC), RAS entrusted Saremar with the task of carrying out promotional activities essentially consisting in displaying logos and advertising on Saremar vessels with the aim to promote Sardinia as tourist destination, without however explicitly promoting the Bonus Sardo – Vacanza project. Decision 25/53/EC also instructed the Agency to allocate to Saremar the amount of EUR 3 million provided for by Decision 20/58/EC, with an immediate advance payment of 80 %.

Decision 25/53/EC)

2.2.3.   EUR 3 MILLION LOAN AND THE FIRST LETTER OF COMFORT

| (82) | By virtue of Regional Decision 23/2/EC of 12 May 2011 (Decision 23/2/EC), Saremar was authorised to contract a EUR 3 million loan, bearing interest at ‘the market average rate’, with an indicative maturity of eight months, to address its liquidity needs. |
| --- | --- |

(82)

By virtue of Regional Decision 23/2/EC of 12 May 2011 (Decision 23/2/EC), Saremar was authorised to contract a EUR 3 million loan, bearing interest at ‘the market average rate’, with an indicative maturity of eight months, to address its liquidity needs.

Decision 23/2/EC

the market average rate

| (83) | By Regional Decision 31/24/EC of 20 July 2011 (Decision 31/24/EC), RAS, as sole shareholder of Saremar, issued a letter of comfort in favour of Banco di Sardegna S.p.A (hereinafter the BS bank) as a precondition for approval of the credit line. |
| --- | --- |

(83)

By Regional Decision 31/24/EC of 20 July 2011 (Decision 31/24/EC), RAS, as sole shareholder of Saremar, issued a letter of comfort in favour of Banco di Sardegna S.p.A (hereinafter the BS bank) as a precondition for approval of the credit line.

Decision 31/24/EC

the BS bank

| (84) | In the comfort letter RAS commits to inform the BS bank in advance of any potential change in its shareholding in the company and to seek that the company is managed in an efficient way. |
| --- | --- |

(84)

In the comfort letter RAS commits to inform the BS bank in advance of any potential change in its shareholding in the company and to seek that the company is managed in an efficient way.

| (85) | By Regional Decision 12/15/EC of 20 March 2012 (Decision 12/15/EC) RAS made public that the EUR 3 million credit line approved by Decision 23/2/EC had not ultimately been contracted by Saremar and the letter of comfort approved by Decision 31/24/EC eventually expired. |
| --- | --- |

(85)

By Regional Decision 12/15/EC of 20 March 2012 (Decision 12/15/EC) RAS made public that the EUR 3 million credit line approved by Decision 23/2/EC had not ultimately been contracted by Saremar and the letter of comfort approved by Decision 31/24/EC eventually expired.

Decision 12/15/EC

2.2.4.   SECOND LETTER OF COMFORT

| (86) | By Regional Decision 52/119/EC of 23 December 2011 (Decision 52/119/EC), RAS approved a second letter of comfort to enable Saremar to obtain a EUR 5 million overdraft facility to ensure sufficient liquidities in the immediate for the operation of the links to the mainland. A guarantee had been asked by Monte dei Paschi di Siena bank (hereinafter the MPS bank) as a precondition for approval of the facility. |
| --- | --- |

(86)

By Regional Decision 52/119/EC of 23 December 2011 (Decision 52/119/EC), RAS approved a second letter of comfort to enable Saremar to obtain a EUR 5 million overdraft facility to ensure sufficient liquidities in the immediate for the operation of the links to the mainland. A guarantee had been asked by Monte dei Paschi di Siena bank (hereinafter the MPS bank) as a precondition for approval of the facility.

Decision 52/119/EC

the MPS bank

| (87) | The comfort letter recalls that Saremar is wholly owned by RAS, that a EUR 11,5 million recapitalisation had been approved and that the company would continue operation of the links with the mainland. RAS commits to inform the lender beforehand of any potential change in its shareholding in the company and to seek that the company be managed efficiently. |
| --- | --- |

(87)

The comfort letter recalls that Saremar is wholly owned by RAS, that a EUR 11,5 million recapitalisation had been approved and that the company would continue operation of the links with the mainland. RAS commits to inform the lender beforehand of any potential change in its shareholding in the company and to seek that the company be managed efficiently.

| (88) | RAS stated that the letter of comfort approved by Decision 52/119/EC was not ultimately issued and a EUR 2,5 million credit line was granted by the MPS at market rates with no guarantee from RAS. By its comments on the 2012 opening decision, RAS provided the Commission with the credit line agreement with MPS Bank. The contract lays down a credit line up to EUR 2,5 million bearing variable interest based on the one-month EURIBOR + 5 %. |
| --- | --- |

(88)

RAS stated that the letter of comfort approved by Decision 52/119/EC was not ultimately issued and a EUR 2,5 million credit line was granted by the MPS at market rates with no guarantee from RAS. By its comments on the 2012 opening decision, RAS provided the Commission with the credit line agreement with MPS Bank. The contract lays down a credit line up to EUR 2,5 million bearing variable interest based on the one-month EURIBOR + 5 %.

2.2.5.   THE RECAPITALISATION

| (89) | According to Decision 36/6/EC, Saremar's EUR 11 546 403,59 claim against Tirrenia in insolvency had been duly registered by the Bankruptcy Chamber of the Civil Court of Rome and declared enforceable on 1 April 2011. The write-down of the credit by EUR 5 773 201,80, i.e. 50 %, when the company's 2010 balance sheet was approved, led to a EUR 5 253 530,05 loss in 2010. On 28 March 2012 Saremar's Shareholders' Assembly decided to cover the EUR 4 890 950,36 loss (21) carried forward to 2012 by reducing the capital from EUR 6 099 961 to EUR 1 209 010,64. |
| --- | --- |

(89)

According to Decision 36/6/EC, Saremar's EUR 11 546 403,59 claim against Tirrenia in insolvency had been duly registered by the Bankruptcy Chamber of the Civil Court of Rome and declared enforceable on 1 April 2011. The write-down of the credit by EUR 5 773 201,80, i.e. 50 %, when the company's 2010 balance sheet was approved, led to a EUR 5 253 530,05 loss in 2010. On 28 March 2012 Saremar's Shareholders' Assembly decided to cover the EUR 4 890 950,36 loss (21) carried forward to 2012 by reducing the capital from EUR 6 099 961 to EUR 1 209 010,64.

21

| (90) | Under the Italian Civil Code, shareholders are required to recapitalise a company when its capital has dropped by more than one third. Consequently, on 15 June 2012 the Shareholders' Assembly decided to increase Saremar capital from EUR 1 209 010,64 to EUR 6 099 961 of which EUR 824 309,69 paid in on 11 July 2012, i.e. the minimum amount required to bring the capital in line with legal requirements. The remaining would be implemented subject to prior notification of the measure to the Commission. |
| --- | --- |

(90)

Under the Italian Civil Code, shareholders are required to recapitalise a company when its capital has dropped by more than one third. Consequently, on 15 June 2012 the Shareholders' Assembly decided to increase Saremar capital from EUR 1 209 010,64 to EUR 6 099 961 of which EUR 824 309,69 paid in on 11 July 2012, i.e. the minimum amount required to bring the capital in line with legal requirements. The remaining would be implemented subject to prior notification of the measure to the Commission.

| (91) | To date the Commission has not been informed of further capital injections. |
| --- | --- |

(91)

To date the Commission has not been informed of further capital injections.

3.   GROUNDS FOR INITIATING THE PROCEDURE

GROUNDS FOR INITIATING THE PROCEDURE

3.1.   COMPENSATION FOR THE OPERATION OF THE TWO ROUTES BETWEEN SARDINIA AND MAINLAND ITALY

COMPENSATION FOR THE OPERATION OF THE TWO ROUTES BETWEEN SARDINIA AND MAINLAND ITALY

3.1.1.   AID QUALIFICATION

| (92) | In its 2012 decision, the Commission took the preliminary view that the acts entrusting Saremar with the operation the two routes to the mainland did not explicitly qualify the services in question as SGEIs, nor did they refer to any compensation to Saremar for the discharge of PSOs. The Commission also noted that, based on the information available at that stage, the EUR 10 million compensation granted to Saremar seemed to exceed operational losses. |
| --- | --- |

(92)

In its 2012 decision, the Commission took the preliminary view that the acts entrusting Saremar with the operation the two routes to the mainland did not explicitly qualify the services in question as SGEIs, nor did they refer to any compensation to Saremar for the discharge of PSOs. The Commission also noted that, based on the information available at that stage, the EUR 10 million compensation granted to Saremar seemed to exceed operational losses.

| (93) | The Commission also took the preliminary view that the fourth Altmark condition (22) was not observed inasmuch as the operation of the two additional routes entrusted to Saremar in 2011 had not been tendered out. The Commission had in addition no evidence to support the argument that Saremar had in fact provided the service at the least cost to the community. |
| --- | --- |

(93)

The Commission also took the preliminary view that the fourth Altmark condition (22) was not observed inasmuch as the operation of the two additional routes entrusted to Saremar in 2011 had not been tendered out. The Commission had in addition no evidence to support the argument that Saremar had in fact provided the service at the least cost to the community.

22

3.1.2.   COMPATIBILITY

| (94) | The Commission considered that aid under the form of public compensation to Saremar could not be found compatible with the internal market and exempted from the notification requirement under Commission Decision 2005/842/EC (23) (hereinafter the 2005 SGEI Decision), nor under Commission Decision 2012/21/EU (24) (hereinafter the 2011 SGEI Decision). |
| --- | --- |

(94)

The Commission considered that aid under the form of public compensation to Saremar could not be found compatible with the internal market and exempted from the notification requirement under Commission Decision 2005/842/EC (23) (hereinafter the 2005 SGEI Decision), nor under Commission Decision 2012/21/EU (24) (hereinafter the 2011 SGEI Decision).

23

the 2005 SGEI Decision

24

the 2011 SGEI Decision

| (95) | The Commission raised doubts as concerns the compatibility of the compensation on the basis of the European Union framework for State aid in the form of public service compensation (2011) (25) (hereinafter the 2011 SGEI Framework), given the questionable SGEI qualification of the services and the fact that Saremar may have been overcompensated. |
| --- | --- |

(95)

The Commission raised doubts as concerns the compatibility of the compensation on the basis of the European Union framework for State aid in the form of public service compensation (2011) (25) (hereinafter the 2011 SGEI Framework), given the questionable SGEI qualification of the services and the fact that Saremar may have been overcompensated.

25

the 2011 SGEI Framework

| (96) | Finally, the Commission noted that, after 31 January 2012, in order to be deemed compatible with the internal market, SGEIs also have to observe additional conditions laid down by paragraphs 14, 19, 20, 24, 39 and 60 of the 2011 SGEI Framework. The Commission considered that those conditions had not been observed in this case. |
| --- | --- |

(96)

Finally, the Commission noted that, after 31 January 2012, in order to be deemed compatible with the internal market, SGEIs also have to observe additional conditions laid down by paragraphs 14, 19, 20, 24, 39 and 60 of the 2011 SGEI Framework. The Commission considered that those conditions had not been observed in this case.

3.2.   PROMOTIONAL ACTIVITIES

PROMOTIONAL ACTIVITIES

| (97) | The Commission invited Italy to clarify how the price of the promotional activities had been established and to submit evidence that they had been priced at market value, for instance by providing benchmarks available on the market. |
| --- | --- |

(97)

The Commission invited Italy to clarify how the price of the promotional activities had been established and to submit evidence that they had been priced at market value, for instance by providing benchmarks available on the market.

3.3.   EUR 3 MILLION LOAN AND THE LETTERS OF COMFORT

EUR 3 MILLION LOAN AND THE LETTERS OF COMFORT

| (98) | The Commission took the preliminary view that the letters of comfort did not confer undue advantages to Saremar to the extent that they were not ultimately put in use to guarantee any loan or other financial obligations of the beneficiary. It asked Italy and interested parties to submit comments in this respect. |
| --- | --- |

(98)

The Commission took the preliminary view that the letters of comfort did not confer undue advantages to Saremar to the extent that they were not ultimately put in use to guarantee any loan or other financial obligations of the beneficiary. It asked Italy and interested parties to submit comments in this respect.

| (99) | The Commission also invited Italy to submit evidence that the EUR 3 million loan drawn by Saremar from Banco di Sardegna S.p.A. was in conformity with market terms. |
| --- | --- |

(99)

The Commission also invited Italy to submit evidence that the EUR 3 million loan drawn by Saremar from Banco di Sardegna S.p.A. was in conformity with market terms.

3.4.   THE RECAPITALISATION

THE RECAPITALISATION

| (100) | As concerns Saremar's recapitalisation, the Commission took the preliminary view that the measure conferred an economic advantage on the company, given that it was unlikely that in similar circumstances a private shareholder would have subscribed the capital in question. It asked Italy and interested parties to submit comments in this respect. |
| --- | --- |

(100)

As concerns Saremar's recapitalisation, the Commission took the preliminary view that the measure conferred an economic advantage on the company, given that it was unlikely that in similar circumstances a private shareholder would have subscribed the capital in question. It asked Italy and interested parties to submit comments in this respect.

4.   COMMENTS FROM RAS AND SAREMAR

COMMENTS FROM RAS AND SAREMAR

4.1.   COMPENSATION FOR THE OPERATION OF THE TWO ROUTES BETWEEN SARDINIA AND MAINLAND ITALY

COMPENSATION FOR THE OPERATION OF THE TWO ROUTES BETWEEN SARDINIA AND MAINLAND ITALY

| (101) | Saremar supports and supplements the arguments developed by RAS as concerns the compensation received for the operation of the two routes linking Sardinia to the mainland in 2011 and 2012. These comments are dealt with together below. |
| --- | --- |

(101)

Saremar supports and supplements the arguments developed by RAS as concerns the compensation received for the operation of the two routes linking Sardinia to the mainland in 2011 and 2012. These comments are dealt with together below.

| (102) | The company did not comment on the other measures subject to the investigation. |
| --- | --- |

(102)

The company did not comment on the other measures subject to the investigation.

4.1.1.   ISSUES REGARDING AID QUALIFICATION

| (103) | First, RAS argued that the compensation granted to Saremar for the operation of the two connections with the mainland complies with the market-economy investor principle (hereinafter MEIP). Even though the operation of the routes had been loss making, it was legitimate to assume that the activity would yield a return. When adopting the measures in question, RAS acted as a prudent market investor, given that its decisions to activate the two routes in question were based on business plans prepared ex-ante. Notably:






  (a) | in March/April 2011, when RAS decided that Saremar would start serving new routes to the mainland, it only considered routes which could be operated on economic balance; |
| --- | --- | --- |

(103)

First, RAS argued that the compensation granted to Saremar for the operation of the two connections with the mainland complies with the market-economy investor principle (hereinafter MEIP). Even though the operation of the routes had been loss making, it was legitimate to assume that the activity would yield a return. When adopting the measures in question, RAS acted as a prudent market investor, given that its decisions to activate the two routes in question were based on business plans prepared ex-ante. Notably:

MEIP

ex-ante

(a)

in March/April 2011, when RAS decided that Saremar would start serving new routes to the mainland, it only considered routes which could be operated on economic balance;

| (b) | by Decision 36/6/EC, RAS decided that Saremar was to verify, on the basis of a business plan, the viability of operation for the period 30 September 2011 to 30 September 2012, of at least one additional route among Olbia – Livorno, Porto Torres — Livorno and Cagliari – Piombino. Saremar was also required to resume, on the basis of a business plan, the Golfo Aranci (or Olbia) - Civitavecchia, Porto Torres — Vado Ligure (or Genova) lines from 15 May 2012 to 15 September 2012. The decision not to start serving new routes, but rather to resume operation in the 2012 summer season of the two routes already operated by Saremar in 2011, was equally based on profitability grounds; |
| --- | --- |

(b)

by Decision 36/6/EC, RAS decided that Saremar was to verify, on the basis of a business plan, the viability of operation for the period 30 September 2011 to 30 September 2012, of at least one additional route among Olbia – Livorno, Porto Torres — Livorno and Cagliari – Piombino. Saremar was also required to resume, on the basis of a business plan, the Golfo Aranci (or Olbia) - Civitavecchia, Porto Torres — Vado Ligure (or Genova) lines from 15 May 2012 to 15 September 2012. The decision not to start serving new routes, but rather to resume operation in the 2012 summer season of the two routes already operated by Saremar in 2011, was equally based on profitability grounds;

| (c) | RAS's decision to contain operational losses by the interruption of the service on both routes at the end of the 2012 high season and to partly compensate operational losses was instrumental in ensuring that its business risk was reduced to a minimum. Therefore, such decision would likewise have been taken by a private investor. |
| --- | --- |

(c)

RAS's decision to contain operational losses by the interruption of the service on both routes at the end of the 2012 high season and to partly compensate operational losses was instrumental in ensuring that its business risk was reduced to a minimum. Therefore, such decision would likewise have been taken by a private investor.

| (104) | Second, RAS stressed that the four Altmark criteria have been observed in this case, for the grounds developed below. |
| --- | --- |

(104)

Second, RAS stressed that the four Altmark criteria have been observed in this case, for the grounds developed below.

Altmark 1

Altmark 1

| (105) | National authorities have a wide power of discretion as concerns the definition of SGEIs. RAS has been granted competencies as concerns territorial continuity by Law 296 of 7 December 2006 and is therefore the best placed authority to define SGEIs as concerns links from Sardinia to mainland Italy. On this basis, RAS underlines its interest in ensuring territorial continuity at affordable fares. The entrustment of the service to Saremar on a trial basis would have addressed general interest needs and would have been guided by urgency reasons. |
| --- | --- |

(105)

National authorities have a wide power of discretion as concerns the definition of SGEIs. RAS has been granted competencies as concerns territorial continuity by Law 296 of 7 December 2006 and is therefore the best placed authority to define SGEIs as concerns links from Sardinia to mainland Italy. On this basis, RAS underlines its interest in ensuring territorial continuity at affordable fares. The entrustment of the service to Saremar on a trial basis would have addressed general interest needs and would have been guided by urgency reasons.

| (106) | As to the actual necessity of the imposition of PSOs, RAS first recalls the severe crisis of former parent company Tirrenia, which had traditionally operated links between Sardinia and mainland Italy. Tirrenia's financial distress had allegedly resulted in extreme uncertainty as concerns the operation of the public service, at least until July 2012 when CIN signed the new Convention. RAS recalls that the sale of Tirrenia to CIN, in its original composition of shareholders, had been blocked by the Commission. |
| --- | --- |

(106)

As to the actual necessity of the imposition of PSOs, RAS first recalls the severe crisis of former parent company Tirrenia, which had traditionally operated links between Sardinia and mainland Italy. Tirrenia's financial distress had allegedly resulted in extreme uncertainty as concerns the operation of the public service, at least until July 2012 when CIN signed the new Convention. RAS recalls that the sale of Tirrenia to CIN, in its original composition of shareholders, had been blocked by the Commission.

| (107) | Second, RAS submits that the increase in transport prices on the routes connecting Sardinia to the mainland in the following months seriously affected most users, and in particular the socially vulnerable part of the Sardinian community. |
| --- | --- |

(107)

Second, RAS submits that the increase in transport prices on the routes connecting Sardinia to the mainland in the following months seriously affected most users, and in particular the socially vulnerable part of the Sardinian community.

| (108) | It was on these grounds that, in April 2011, RAS decided to set up, on a trial basis, public transport services aiming to ensure territorial continuity with the mainland at affordable rates. The private operators, although consulted on the issue, had according to RAS not shown any willingness to contain prices and rejected any form of erga omnes obligation on fares. |
| --- | --- |

(108)

It was on these grounds that, in April 2011, RAS decided to set up, on a trial basis, public transport services aiming to ensure territorial continuity with the mainland at affordable rates. The private operators, although consulted on the issue, had according to RAS not shown any willingness to contain prices and rejected any form of erga omnes obligation on fares.

erga omnes

| (109) | The operation of the SGEI was entrusted to Saremar by means of several entrustment acts, which would clearly outline the public interest objective. RAS stresses that entrusting the operation of the services in question to Saremar was the only viable alternative to avoid serious disruptions to territorial continuity. |
| --- | --- |

(109)

The operation of the SGEI was entrusted to Saremar by means of several entrustment acts, which would clearly outline the public interest objective. RAS stresses that entrusting the operation of the services in question to Saremar was the only viable alternative to avoid serious disruptions to territorial continuity.

| (110) | Saremar qualifies as in-house operator of RAS: it is directly controlled by RAS, which is its sole shareholder; it was statutorily entrusted with the operation of the links from Sardinia to the minor islands and Corsica on one hand, and to the mainland on the other; it does not dispose of any discretion as concerns the operation of the services entrusted to it, which are unilaterally determined by RAS; also, Saremar does not develop any activity contrary to the interest of RAS. Consequently, RAS argues that, in accordance with public procurement rules, it did not need to tender out the provision of the service, but was free to directly award it to the internal operator. As long as the compensation did not exceed the costs incurred in the operation of the service, State aid was not involved. |
| --- | --- |

(110)

Saremar qualifies as in-house operator of RAS: it is directly controlled by RAS, which is its sole shareholder; it was statutorily entrusted with the operation of the links from Sardinia to the minor islands and Corsica on one hand, and to the mainland on the other; it does not dispose of any discretion as concerns the operation of the services entrusted to it, which are unilaterally determined by RAS; also, Saremar does not develop any activity contrary to the interest of RAS. Consequently, RAS argues that, in accordance with public procurement rules, it did not need to tender out the provision of the service, but was free to directly award it to the internal operator. As long as the compensation did not exceed the costs incurred in the operation of the service, State aid was not involved.

in-house

| (111) | In this sense, RAS recalls that Regulation (EC) No 1370/2007 of the European Parliament and of the Council (26) explicitly lays down that national authorities may entrust an internal operator/department with the provision of transport services, without tendering of a public service contract. Regulation (EC) No 1008/2008 of the European Parliament and of the Council (27) equally foresees the possibility for public authorities to take ‘emergency measures in case of interruption of the services or risk of interruption of the services’, which can take the form of the ‘direct award of a public service contract or the commonly agreed prolongation of a public service contract’. |
| --- | --- |

(111)

In this sense, RAS recalls that Regulation (EC) No 1370/2007 of the European Parliament and of the Council (26) explicitly lays down that national authorities may entrust an internal operator/department with the provision of transport services, without tendering of a public service contract. Regulation (EC) No 1008/2008 of the European Parliament and of the Council (27) equally foresees the possibility for public authorities to take ‘emergency measures in case of interruption of the services or risk of interruption of the services’, which can take the form of the ‘direct award of a public service contract or the commonly agreed prolongation of a public service contract’.

26

27

| (112) | According to RAS, this view was confirmed by the Commission in the framework of the infringement procedure concerning non-observance by Italy of Council Regulation (EEC) No 3577/92 of 7 December 1992 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) (28) (hereinafter the Maritime Cabotage Regulation), in which context the Commission stated that ‘were the regions to operate the service in-house within the meaning of the ANAV case law (C-410/04) with the observance of all relevant requirements, the Maritime Cabotage Regulation would be considered complied with’. |
| --- | --- |

(112)

According to RAS, this view was confirmed by the Commission in the framework of the infringement procedure concerning non-observance by Italy of Council Regulation (EEC) No 3577/92 of 7 December 1992 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) (28) (hereinafter the Maritime Cabotage Regulation), in which context the Commission stated that ‘were the regions to operate the service in-house within the meaning of the ANAV case law (C-410/04) with the observance of all relevant requirements, the Maritime Cabotage Regulation would be considered complied with’.

28

| (113) | RAS underlines that the selection of the routes to be operated by Saremar was made on the basis of a feasibility study which took due account of the need to guarantee territorial continuity and ensure economic viability of the activity. As recalled by subsequent Decisions 25/69/EC and 27/4/EC, it was on the basis of this study and the market information gathered by Saremar that the Civitavecchia — Golfo Aranci and Vado Ligure — Porto Torres routes have been activated for the high season, namely from 15 June to 15 September 2011 and from 22 June to 15 September 2012 respectively. |
| --- | --- |

(113)

RAS underlines that the selection of the routes to be operated by Saremar was made on the basis of a feasibility study which took due account of the need to guarantee territorial continuity and ensure economic viability of the activity. As recalled by subsequent Decisions 25/69/EC and 27/4/EC, it was on the basis of this study and the market information gathered by Saremar that the Civitavecchia — Golfo Aranci and Vado Ligure — Porto Torres routes have been activated for the high season, namely from 15 June to 15 September 2011 and from 22 June to 15 September 2012 respectively.

| (114) | RAS also recalls that the operation of the Genova — Porto Torres and Civitavecchia — Olbia routes in the summer season falls outside the scope of the new Convention concluded by the Italian State with CIN and is therefore not subject to PSOs to guarantee affordability of the services. At any rate, that new Convention allows for the revision of the prices to account for increases in costs (in particular bunker costs), and would not therefore guarantee the affordability of the services to Sardinian residents. |
| --- | --- |

(114)

RAS also recalls that the operation of the Genova — Porto Torres and Civitavecchia — Olbia routes in the summer season falls outside the scope of the new Convention concluded by the Italian State with CIN and is therefore not subject to PSOs to guarantee affordability of the services. At any rate, that new Convention allows for the revision of the prices to account for increases in costs (in particular bunker costs), and would not therefore guarantee the affordability of the services to Sardinian residents.

| (115) | According to RAS, trial operation of the two routes to the mainland was definitely terminated in September 2012. RAS then elaborated a structured project for operation of links to the mainland, which was pre-notified to the Commission, namely the Flotta Sarda project. A new company, Flotta Sarda S.p.A. (Flotta Sarda), entirely held and financed by RAS, will be set up, to be entrusted with the provision under a public service regime of maritime transport services on four routes connecting Sardinia to mainland Italy. Flotta Sarda will receive annual compensation to cover public service costs. |
| --- | --- |

(115)

According to RAS, trial operation of the two routes to the mainland was definitely terminated in September 2012. RAS then elaborated a structured project for operation of links to the mainland, which was pre-notified to the Commission, namely the Flotta Sarda project. A new company, Flotta Sarda S.p.A. (Flotta Sarda), entirely held and financed by RAS, will be set up, to be entrusted with the provision under a public service regime of maritime transport services on four routes connecting Sardinia to mainland Italy. Flotta Sarda will receive annual compensation to cover public service costs.

Flotta Sarda

Flotta Sarda

Altmark 2

Altmark 2

| (116) | The fact that the Regional Decisions instructing Saremar to start operation of the routes in question do not provide for its right to compensation does not affect observance of the second Altmark criterion. Public authorities need not define ex-ante the precise amount of compensation to be granted for the operation of public services. Rather, it is sufficient that they identify beforehand the means of calculation of eligible costs, to the extent that these costs are directly attributable to the discharge of the SGEIs. Indeed, in the present case, when RAS decided to instruct Saremar to set up connections to the mainland, it had considered that the operation of such services would not result in losses. Compensation could theoretically have proved unnecessary, however it was not excluded. |
| --- | --- |

(116)

The fact that the Regional Decisions instructing Saremar to start operation of the routes in question do not provide for its right to compensation does not affect observance of the second Altmark criterion. Public authorities need not define ex-ante the precise amount of compensation to be granted for the operation of public services. Rather, it is sufficient that they identify beforehand the means of calculation of eligible costs, to the extent that these costs are directly attributable to the discharge of the SGEIs. Indeed, in the present case, when RAS decided to instruct Saremar to set up connections to the mainland, it had considered that the operation of such services would not result in losses. Compensation could theoretically have proved unnecessary, however it was not excluded.

ex-ante

| (117) | RAS points out that since the operation of the services in question was subject to separate accounting, the net costs incurred in the provision of the public service, could be easily identified. |
| --- | --- |

(117)

RAS points out that since the operation of the services in question was subject to separate accounting, the net costs incurred in the provision of the public service, could be easily identified.

Altmark 3

Altmark 3

| (118) | Saremar operated the public services in question under separate accounting. RAS takes the view that this is sufficient to ensure that the public resources were used only to compensate the operator for the deficit registered. In RAS's view, Saremar was therefore not overcompensated. |
| --- | --- |

(118)

Saremar operated the public services in question under separate accounting. RAS takes the view that this is sufficient to ensure that the public resources were used only to compensate the operator for the deficit registered. In RAS's view, Saremar was therefore not overcompensated.

Altmark 4

Altmark 4

| (119) | RAS defends that the fourth Altmark condition is fulfilled given that the vessels employed on the routes had been leased following a market consultation and bunker costs observe market rates. All other costs components (insurance, services auxiliary to navigation, port rights) are market based. |
| --- | --- |

(119)

RAS defends that the fourth Altmark condition is fulfilled given that the vessels employed on the routes had been leased following a market consultation and bunker costs observe market rates. All other costs components (insurance, services auxiliary to navigation, port rights) are market based.

4.1.2.   ISSUES REGARDING COMPATIBILITY

| (120) | RAS submits that Saremar's qualification as internal operator precludes application of the non-discrimination condition laid down by the Maritime Cabotage Regulation and the award of the public service to Saremar does not therefore infringe the 2005 nor the 2011 SGEI Decisions. |
| --- | --- |

(120)

RAS submits that Saremar's qualification as internal operator precludes application of the non-discrimination condition laid down by the Maritime Cabotage Regulation and the award of the public service to Saremar does not therefore infringe the 2005 nor the 2011 SGEI Decisions.

| (121) | RAS explains that the measure had been defined in all its essential elements already in April 2011. Any aid put into effect before the entry into force of the 2011 SGEI Decision should be assessed on the basis of the 2005 SGEI Decision. RAS assumes that the compatibility conditions laid down therein are complied with. In particular:






  (a) | the service was entrusted to Saremar on the basis of transparent, non-discriminatory conditions within the meaning of the Maritime Cabotage Regulation; |
| --- | --- | --- |

(121)

RAS explains that the measure had been defined in all its essential elements already in April 2011. Any aid put into effect before the entry into force of the 2011 SGEI Decision should be assessed on the basis of the 2005 SGEI Decision. RAS assumes that the compatibility conditions laid down therein are complied with. In particular:

(a)

the service was entrusted to Saremar on the basis of transparent, non-discriminatory conditions within the meaning of the Maritime Cabotage Regulation;

| (b) | the ceilings in Article 2(1)(a) and (c) of the 2005 SGEI Decision are observed: the subsidy is below EUR 30 million and less than 300 000 passengers were carried on each route; |
| --- | --- |

(b)

the ceilings in Article 2(1)(a) and (c) of the 2005 SGEI Decision are observed: the subsidy is below EUR 30 million and less than 300 000 passengers were carried on each route;

| (c) | the services have lawfully been qualified as SGEIs and entrusted to Saremar by means of several entrustment acts, in accordance with Article 4 thereof; |
| --- | --- |

(c)

the services have lawfully been qualified as SGEIs and entrusted to Saremar by means of several entrustment acts, in accordance with Article 4 thereof;

| (d) | the compensation granted to Saremar for the operation of the routes to the mainland does not exceed what is necessary to cover costs incurred in the operation of the services, in line with Article 6 thereof. |
| --- | --- |

(d)

the compensation granted to Saremar for the operation of the routes to the mainland does not exceed what is necessary to cover costs incurred in the operation of the services, in line with Article 6 thereof.

| (122) | RAS submits that the measure would, in any event, also comply with the 2011 SGEI Decision, given that:






  (a) | the second ceiling laid down by Article 2(1)(d) thereof is observed; |
| --- | --- | --- |

(122)

RAS submits that the measure would, in any event, also comply with the 2011 SGEI Decision, given that:

(a)

the second ceiling laid down by Article 2(1)(d) thereof is observed;

| (b) | the service was entrusted to Saremar following technical discussions with private operators. Furthermore, RAS had received numerous complaints regarding the service provided by private operators; |
| --- | --- |

(b)

the service was entrusted to Saremar following technical discussions with private operators. Furthermore, RAS had received numerous complaints regarding the service provided by private operators;

| (c) | the compensation takes into account the net costs the operator incurred in the operation of the service; |
| --- | --- |

(c)

the compensation takes into account the net costs the operator incurred in the operation of the service;

| (d) | transparency requirements have been observed given that the Regional Decisions on the matter were published. |
| --- | --- |

(d)

transparency requirements have been observed given that the Regional Decisions on the matter were published.

| (123) | Ultimately, RAS submits that the measure cannot be held to distort competition to an extent contrary to Union interest, given that it aims to ensure territorial continuity and is limited to the deficit incurred in the operation of SGEIs. |
| --- | --- |

(123)

Ultimately, RAS submits that the measure cannot be held to distort competition to an extent contrary to Union interest, given that it aims to ensure territorial continuity and is limited to the deficit incurred in the operation of SGEIs.

4.2.   PROMOTIONAL ACTIVITIES

PROMOTIONAL ACTIVITIES

| (124) | According to RAS, the subsidy for promotional activities corresponds to the services effectively rendered by Saremar and does not therefore provide any undue economic advantage to the company. |
| --- | --- |

(124)

According to RAS, the subsidy for promotional activities corresponds to the services effectively rendered by Saremar and does not therefore provide any undue economic advantage to the company.

| (125) | RAS holds that, when assessing the conformity of the price with market conditions, due account has to be taken of the fact that the promotional activities in question have not been limited to the 2011 high season as originally foreseen, but eventually extended to 2012. |
| --- | --- |

(125)

RAS holds that, when assessing the conformity of the price with market conditions, due account has to be taken of the fact that the promotional activities in question have not been limited to the 2011 high season as originally foreseen, but eventually extended to 2012.

| (126) | Late in the procedure, on 28 June 2013, RAS submitted to the Commission an expert opinion to justify the price of the promotional activities. The expert came to the conclusion that the market value of the promotional activities carried out by Saremar in 2011 and 2012 would range between EUR 2 458 168 and EUR 2 609 631 (VAT excluded). Hence, RAS considers that the price it paid to Saremar was justified. Market costs have been benchmarked against average advertising costs per square meter estimated based on parameters such as duration (certain discounts for the continuation of the advertising campaign in 2012 were taken into account), type of the advertising (internal or external) and location (main cities, important influx of population, mobility areas). |
| --- | --- |

(126)

Late in the procedure, on 28 June 2013, RAS submitted to the Commission an expert opinion to justify the price of the promotional activities. The expert came to the conclusion that the market value of the promotional activities carried out by Saremar in 2011 and 2012 would range between EUR 2 458 168 and EUR 2 609 631 (VAT excluded). Hence, RAS considers that the price it paid to Saremar was justified. Market costs have been benchmarked against average advertising costs per square meter estimated based on parameters such as duration (certain discounts for the continuation of the advertising campaign in 2012 were taken into account), type of the advertising (internal or external) and location (main cities, important influx of population, mobility areas).

| (127) | RAS submits that, were the price paid to Saremar for the promotional activities to be considered excessive, the advantage conferred on the company would be limited to the difference between the price actually paid and the market value of the services. Finally, RAS considers that the compatibility of any such aid would have to be assessed on the basis of Article 106(2) TFEU. |
| --- | --- |

(127)

RAS submits that, were the price paid to Saremar for the promotional activities to be considered excessive, the advantage conferred on the company would be limited to the difference between the price actually paid and the market value of the services. Finally, RAS considers that the compatibility of any such aid would have to be assessed on the basis of Article 106(2) TFEU.

4.3.   EUR 3 MILLION LOAN AND THE LETTERS OF COMFORT

EUR 3 MILLION LOAN AND THE LETTERS OF COMFORT

| (128) | RAS asserts that the EUR 3 million credit line obtained by Saremar did not involve any regional funds. It was granted to Saremar at market rates by BS bank, a private financial institution. However, the credit line has not been activated by Saremar, with the result that the letter of comfort of July 2011, issued in accordance with Decision 23/2/EC, expired on 30 November 2011. Given that the letter of comfort was not linked to any financial obligation of the company, it cannot be qualified as a guarantee. |
| --- | --- |

(128)

RAS asserts that the EUR 3 million credit line obtained by Saremar did not involve any regional funds. It was granted to Saremar at market rates by BS bank, a private financial institution. However, the credit line has not been activated by Saremar, with the result that the letter of comfort of July 2011, issued in accordance with Decision 23/2/EC, expired on 30 November 2011. Given that the letter of comfort was not linked to any financial obligation of the company, it cannot be qualified as a guarantee.

| (129) | The second comfort letter, approved by Decision 52/119/EC, was not issued, and therefore no binding obligation in favour of Saremar was taken on by RAS. In fact, the financial transaction provided for by Decision 52/119/EC (EUR 5 million overdraft facility) has never been completed. As recalled by Decision 12/15/EC, the loan contracted with the MPS bank has been requested and obtained by Saremar without being guaranteed by RAS. |
| --- | --- |

(129)

The second comfort letter, approved by Decision 52/119/EC, was not issued, and therefore no binding obligation in favour of Saremar was taken on by RAS. In fact, the financial transaction provided for by Decision 52/119/EC (EUR 5 million overdraft facility) has never been completed. As recalled by Decision 12/15/EC, the loan contracted with the MPS bank has been requested and obtained by Saremar without being guaranteed by RAS.

4.4.   THE RECAPITALISATION

THE RECAPITALISATION

| (130) | RAS underlines that the recapitalisation bears no connection to the operation by Saremar of the two routes to mainland Italy. The measure rather concerns the services operated by Saremar to minor islands and Corsica under the initial Convention, as prolonged. |
| --- | --- |

(130)

RAS underlines that the recapitalisation bears no connection to the operation by Saremar of the two routes to mainland Italy. The measure rather concerns the services operated by Saremar to minor islands and Corsica under the initial Convention, as prolonged.

| (131) | The EUR 11,5 million laid down by Decision 36/6/EC corresponds to the claim filed against Tirrenia in insolvency proceedings. This amount however refers to financial operations within the Tirrenia Group dating back to before 2009. This amount would have been therefore already authorised in 2004, when the Commission adopted its final decision on the initial Conventions up to end 2008. |
| --- | --- |

(131)

The EUR 11,5 million laid down by Decision 36/6/EC corresponds to the claim filed against Tirrenia in insolvency proceedings. This amount however refers to financial operations within the Tirrenia Group dating back to before 2009. This amount would have been therefore already authorised in 2004, when the Commission adopted its final decision on the initial Conventions up to end 2008.

| (132) | To date the recapitalisation has only partially been carried out. By Decision of 15 June 2012, Saremar's Shareholders Assembly decided to increase capital of the company from EUR 1 209 010,64 to EUR 6 099 961, by issuing 307 765 ordinary shares of a nominal value of EUR 19,82. On 11 July 2012 RAS increased Saremar's capital by only EUR 824 309,6. RAS conditioned the subscription of the remaining EUR 4 066 640,67 to the observance of the standstill clause and notification of the operation to the Commission. |
| --- | --- |

(132)

To date the recapitalisation has only partially been carried out. By Decision of 15 June 2012, Saremar's Shareholders Assembly decided to increase capital of the company from EUR 1 209 010,64 to EUR 6 099 961, by issuing 307 765 ordinary shares of a nominal value of EUR 19,82. On 11 July 2012 RAS increased Saremar's capital by only EUR 824 309,6. RAS conditioned the subscription of the remaining EUR 4 066 640,67 to the observance of the standstill clause and notification of the operation to the Commission.

| (133) | RAS underlines that the recapitalisation merely served to recover funds which were, in any event, already at Saremar's disposal. The measure does not involve a transfer of new public resources and does not therefore constitute state aid. The measure should be considered MEIP-compliant given that it is based on a business plan defined ex-ante and aims to optimise the proceeds of the sale of a company with reliable viability perspectives. |
| --- | --- |

(133)

RAS underlines that the recapitalisation merely served to recover funds which were, in any event, already at Saremar's disposal. The measure does not involve a transfer of new public resources and does not therefore constitute state aid. The measure should be considered MEIP-compliant given that it is based on a business plan defined ex-ante and aims to optimise the proceeds of the sale of a company with reliable viability perspectives.

ex-ante

| (134) | Finally, RAS stresses that private operators, in particular GNV and Moby, have benefitted from capital increases to compensate operational losses. Some of these operations have presumably taken place concomitantly with the measure undertaken by RAS in favour of Saremar. |
| --- | --- |

(134)

Finally, RAS stresses that private operators, in particular GNV and Moby, have benefitted from capital increases to compensate operational losses. Some of these operations have presumably taken place concomitantly with the measure undertaken by RAS in favour of Saremar.

5.   COMMENTS FROM INTERESTED PARTIES

COMMENTS FROM INTERESTED PARTIES

5.1.   MOBY

MOBY

5.1.1.   COMPENSATION FOR THE OPERATION OF THE TWO ROUTES BETWEEN SARDINIA AND MAINLAND ITALY

| (135) | Moby claims that Saremar was able to operate the two connections to the mainland at prices below costs during 2011 and 2012 only on account of the subsidy granted by RAS. Moby submits that, as a result of the excessively low prices charged by Saremar, the structure of the market has been significantly altered. Private operators active on the routes in question until 2011, such as GNV or Forship (Sardinia Ferries), had no alternative but to exit the market. |
| --- | --- |

(135)

Moby claims that Saremar was able to operate the two connections to the mainland at prices below costs during 2011 and 2012 only on account of the subsidy granted by RAS. Moby submits that, as a result of the excessively low prices charged by Saremar, the structure of the market has been significantly altered. Private operators active on the routes in question until 2011, such as GNV or Forship (Sardinia Ferries), had no alternative but to exit the market.

| (136) | According to Moby, the measure cannot be justified on public interest grounds for at least two reasons. |
| --- | --- |

(136)

According to Moby, the measure cannot be justified on public interest grounds for at least two reasons.

| (137) | First, any lawful public service interest was taken into account by Italy when concluding on 18 July 2012 the new Convention with CIN, which included the discharge of PSOs on routes between Sardinia and mainland Italy. The new Convention laid down PSOs concerning operation of the Genova —Porto Torres and Civitavecchia – Olbia routes during the low season (year round, except for June to September) with at least a daily frequency. That Convention also laid down a cap on fares and additional fare reductions for residents on all routes operated under a public service regime. It imposed minimum capacity requirements, specifically identified on each of the routes in question. |
| --- | --- |

(137)

First, any lawful public service interest was taken into account by Italy when concluding on 18 July 2012 the new Convention with CIN, which included the discharge of PSOs on routes between Sardinia and mainland Italy. The new Convention laid down PSOs concerning operation of the Genova —Porto Torres and Civitavecchia – Olbia routes during the low season (year round, except for June to September) with at least a daily frequency. That Convention also laid down a cap on fares and additional fare reductions for residents on all routes operated under a public service regime. It imposed minimum capacity requirements, specifically identified on each of the routes in question.

| (138) | Second, there is no genuine public service interest inherent in the measure, as the two routes in question are commercial in nature. The routes have been operated by Saremar not only in the low season, but also in the 2011 and 2012 high seasons, when several other operators were present on the market. It was precisely on account of the commercial character of the routes in question in the summer season that they have been excluded from the scope of the new Convention. |
| --- | --- |

(138)

Second, there is no genuine public service interest inherent in the measure, as the two routes in question are commercial in nature. The routes have been operated by Saremar not only in the low season, but also in the 2011 and 2012 high seasons, when several other operators were present on the market. It was precisely on account of the commercial character of the routes in question in the summer season that they have been excluded from the scope of the new Convention.

| (139) | In addition, the entrustment acts do not explicitly define the services in question as SGEIs and do not grant the operator a right to compensation. Furthermore, RAS directly entrusted Saremar with the provision of those services, without prior tendering procedure. |
| --- | --- |

(139)

In addition, the entrustment acts do not explicitly define the services in question as SGEIs and do not grant the operator a right to compensation. Furthermore, RAS directly entrusted Saremar with the provision of those services, without prior tendering procedure.

| (140) | Moby concludes that the compensation was not justified and is in any event not proportional to the losses incurred by Saremar in the provision of the services. |
| --- | --- |

(140)

Moby concludes that the compensation was not justified and is in any event not proportional to the losses incurred by Saremar in the provision of the services.

5.1.2.   PROMOTIONAL ACTIVITIES

| (141) | Moby holds that the EUR 2 479 000 (VAT excluded) subsidy granted to Saremar for the promotional activities is manifestly disproportionate. Further, the immediate advance of 80 % amount cannot be considered as normal business practice. |
| --- | --- |

(141)

Moby holds that the EUR 2 479 000 (VAT excluded) subsidy granted to Saremar for the promotional activities is manifestly disproportionate. Further, the immediate advance of 80 % amount cannot be considered as normal business practice.

| (142) | Moby also submits, relying on Saremar's balance sheet for 2011, that in addition to the EUR 3 million amount, the Agency granted to Saremar EUR 1 157 000 (VAT excluded) as reimbursement of an amount presumably advanced by Saremar under the framework of the ‘Summer 2011 – Flotta Sarda campaign’ (see recital 80). Moby claims that this amount would also constitute aid to Saremar. |
| --- | --- |

(142)

Moby also submits, relying on Saremar's balance sheet for 2011, that in addition to the EUR 3 million amount, the Agency granted to Saremar EUR 1 157 000 (VAT excluded) as reimbursement of an amount presumably advanced by Saremar under the framework of the ‘Summer 2011 – Flotta Sarda campaign’ (see recital 80). Moby claims that this amount would also constitute aid to Saremar.

Summer 2011 – Flotta Sarda campaign

| (143) | Finally, the Agency had not previously held a tendering procedure to award the promotional services. |
| --- | --- |

(143)

Finally, the Agency had not previously held a tendering procedure to award the promotional services.

5.1.3.   EUR 3 MILLION LOAN AND THE LETTERS OF COMFORT

| (144) | As concerns the second letter of comfort (see recital 87), Moby recalls that, by Decision 52/119/EC, RAS confirmed that an immediate loan from the MPS bank was required for launching service on the Civitavecchia – Olbia route and that the bank had requested a guarantee from RAS. The fact that the comfort letter was formally withdrawn by Decision 12/15/EC is irrelevant for the qualification of the measure as State aid, since it had been explicitly asked for by the MPS bank and had already produced its effects. |
| --- | --- |

(144)

As concerns the second letter of comfort (see recital 87), Moby recalls that, by Decision 52/119/EC, RAS confirmed that an immediate loan from the MPS bank was required for launching service on the Civitavecchia – Olbia route and that the bank had requested a guarantee from RAS. The fact that the comfort letter was formally withdrawn by Decision 12/15/EC is irrelevant for the qualification of the measure as State aid, since it had been explicitly asked for by the MPS bank and had already produced its effects.

5.1.4.   THE RECAPITALISATION

| (145) | Moby fully supports the preliminary view of the Commission on the recapitalisation. It submits that a private investor would not have undertaken the same investment given the difficult financial situation of the company and the lack of foreseeable prospects of return to viability. Also the recapitalisation effectively eased Saremar's access to the loan by the MPS bank and therefore has effects similar to those of a guarantee, thereby conferring an economic advantage on Saremar. |
| --- | --- |

(145)

Moby fully supports the preliminary view of the Commission on the recapitalisation. It submits that a private investor would not have undertaken the same investment given the difficult financial situation of the company and the lack of foreseeable prospects of return to viability. Also the recapitalisation effectively eased Saremar's access to the loan by the MPS bank and therefore has effects similar to those of a guarantee, thereby conferring an economic advantage on Saremar.

5.1.5.   OTHER MEASURES

| (146) | Moby also refers to an additional amount of EUR 4 million granted by RAS to Saremar in October 2011. The amount presumably supplemented State subsidies as a result of the increase in operating costs on the routes to the minor islands and Corsica operated by Saremar under the initial Convention, as prolonged. Moby argues that this measure constitutes additional aid to Saremar, which had not been notified to the Commission in advance. |
| --- | --- |

(146)

Moby also refers to an additional amount of EUR 4 million granted by RAS to Saremar in October 2011. The amount presumably supplemented State subsidies as a result of the increase in operating costs on the routes to the minor islands and Corsica operated by Saremar under the initial Convention, as prolonged. Moby argues that this measure constitutes additional aid to Saremar, which had not been notified to the Commission in advance.

| (147) | Moby qualifies all measures under assessment as constituting unlawful and incompatible aid to Saremar. |
| --- | --- |

(147)

Moby qualifies all measures under assessment as constituting unlawful and incompatible aid to Saremar.

5.2.   OTHER PARTIES

OTHER PARTIES

| (148) | No other party has commented on the measures subject to this Decision within the procedural deadlines. |
| --- | --- |

(148)

No other party has commented on the measures subject to this Decision within the procedural deadlines.

| (149) | Late in the course of the investigation, on 3 July 2013, GNV has submitted to the Commission two documents: (i) the report of a Court-appointed expert in the context of the civil litigation initiated by GNV against Saremar before the Court of Genoa, and (ii) the Court Order of 11 June 2013 admitting the report. |
| --- | --- |

(149)

Late in the course of the investigation, on 3 July 2013, GNV has submitted to the Commission two documents: (i) the report of a Court-appointed expert in the context of the civil litigation initiated by GNV against Saremar before the Court of Genoa, and (ii) the Court Order of 11 June 2013 admitting the report.

| (150) | Three issues of relevance to the present State aid assessment were examined by the expert and included in the report: (i) whether or not the recapitalisation conferred an advantage to the business branch operating the two connections with the mainland, (ii) MEIP-compliance of the recapitalisation, and (iii) the market-conformity of the subsidy paid to Saremar for promotional activities. |
| --- | --- |

(150)

Three issues of relevance to the present State aid assessment were examined by the expert and included in the report: (i) whether or not the recapitalisation conferred an advantage to the business branch operating the two connections with the mainland, (ii) MEIP-compliance of the recapitalisation, and (iii) the market-conformity of the subsidy paid to Saremar for promotional activities.

| (151) | According to the report, the recapitalisation aimed at maintaining the company afloat, in light of the uncertain prolongation of the initial Convention for the following 12 months and thus of the availability of the compensation for the following year. The report relies on a document approved with the 2011 balance-sheet (29), which recalls that the two links to mainland Italy produced an operating loss of EUR 214 000 in 2011 and that, due to the uncertainty surrounding Tirrenia's privatisation, State subsidies were not certain either. The report concludes that the recapitalisation was required to ensure continuity of operation. It benefitted both the business branch operating links to minor islands and the one providing services to the mainland. |
| --- | --- |

(151)

According to the report, the recapitalisation aimed at maintaining the company afloat, in light of the uncertain prolongation of the initial Convention for the following 12 months and thus of the availability of the compensation for the following year. The report relies on a document approved with the 2011 balance-sheet (29), which recalls that the two links to mainland Italy produced an operating loss of EUR 214 000 in 2011 and that, due to the uncertainty surrounding Tirrenia's privatisation, State subsidies were not certain either. The report concludes that the recapitalisation was required to ensure continuity of operation. It benefitted both the business branch operating links to minor islands and the one providing services to the mainland.

29

| (152) | The report goes on to say that Saremar had an EUR 2 523 439 overall surplus in 2011. This included a EUR 2 737 797 profit on the lines operated under the Convention with the State and a EUR 214 358 loss on the routes to the mainland. |
| --- | --- |

(152)

The report goes on to say that Saremar had an EUR 2 523 439 overall surplus in 2011. This included a EUR 2 737 797 profit on the lines operated under the Convention with the State and a EUR 214 358 loss on the routes to the mainland.

| (153) | The expert also concluded that the recapitalisation was not MEIP-compliant, given the precarious condition of the company, which had lost more than one third of its registered capital, and the highly competitive market the company was operating on and its limited business perspectives. It concluded that a private investor would most likely not have invested in such activity. |
| --- | --- |

(153)

The expert also concluded that the recapitalisation was not MEIP-compliant, given the precarious condition of the company, which had lost more than one third of its registered capital, and the highly competitive market the company was operating on and its limited business perspectives. It concluded that a private investor would most likely not have invested in such activity.

| (154) | As concerns the congruity with the market value of the price for promotional activities, the expert noted that, according to the company's balance-sheet for 2011, Saremar had received EUR 2 479 000 as compensation for the provision of advertising services on the vessels operating the routes to the mainland. It analysed the market conformity of this price by dividing the costs incurred in the provision of transport services by the number of passengers carried. The resulting figure of EUR 18,47 cost per passenger was considered excessive when compared with normal costs for this type of advertising, all the more considering the fact that the advertising was directed at onboard passengers, which therefore had already chosen Sardinia as tourist destination. The price paid by RAS was considered not to reflect the market value of the promotional activities carried out by Saremar. |
| --- | --- |

(154)

As concerns the congruity with the market value of the price for promotional activities, the expert noted that, according to the company's balance-sheet for 2011, Saremar had received EUR 2 479 000 as compensation for the provision of advertising services on the vessels operating the routes to the mainland. It analysed the market conformity of this price by dividing the costs incurred in the provision of transport services by the number of passengers carried. The resulting figure of EUR 18,47 cost per passenger was considered excessive when compared with normal costs for this type of advertising, all the more considering the fact that the advertising was directed at onboard passengers, which therefore had already chosen Sardinia as tourist destination. The price paid by RAS was considered not to reflect the market value of the promotional activities carried out by Saremar.

| (155) | GNV has also submitted to the Commission Saremar's comments on the report provided in the context of the national proceedings. In its comments Saremar underlined that the NCA had already confirmed that its share of the market for maritime transport services linking Sardinia to mainland Italy had remained marginal and was therefore not liable to have altered pre-existing market conditions. Saremar also confirmed the negative result in 2011 (EUR 214 358) on the routes linking Sardinia to the mainland. It stated that, in order to offset losses on the two routes to the mainland, the company would have had to increase fares at the levels charged by private operators. |
| --- | --- |

(155)

GNV has also submitted to the Commission Saremar's comments on the report provided in the context of the national proceedings. In its comments Saremar underlined that the NCA had already confirmed that its share of the market for maritime transport services linking Sardinia to mainland Italy had remained marginal and was therefore not liable to have altered pre-existing market conditions. Saremar also confirmed the negative result in 2011 (EUR 214 358) on the routes linking Sardinia to the mainland. It stated that, in order to offset losses on the two routes to the mainland, the company would have had to increase fares at the levels charged by private operators.

| (156) | The fact that the services on the two routes were discontinued in September 2011 helped contain operational losses. The continuation of operation would have negatively impacted the results and would have led to an intervention by RAS to cover operational losses. |
| --- | --- |

(156)

The fact that the services on the two routes were discontinued in September 2011 helped contain operational losses. The continuation of operation would have negatively impacted the results and would have led to an intervention by RAS to cover operational losses.

| (157) | Saremar underlined that the situation of the company at the moment the recapitalisation was critical, given the (more than moderate) risk of cutbacks in public subsidies. On account of the State's inability to support the company, also in managerial terms, the financial situation of the company raised substantial concerns. According to Saremar, this would make any comparison with private operators inappropriate. |
| --- | --- |

(157)

Saremar underlined that the situation of the company at the moment the recapitalisation was critical, given the (more than moderate) risk of cutbacks in public subsidies. On account of the State's inability to support the company, also in managerial terms, the financial situation of the company raised substantial concerns. According to Saremar, this would make any comparison with private operators inappropriate.

6.   COMMENTS FROM ITALY ON INTERESTED PARTIES COMMENTS

COMMENTS FROM ITALY ON INTERESTED PARTIES COMMENTS

| (158) | Italy did not comment on the observations submitted by interested parties as regards measures adopted by RAS in favour of Saremar. |
| --- | --- |

(158)

Italy did not comment on the observations submitted by interested parties as regards measures adopted by RAS in favour of Saremar.

7.   ASSESSMENT

ASSESSMENT

7.1.   EXISTENCE OF AID WITHIN THE MEANING OF ARTICLE 107(1) TFEU

EXISTENCE OF AID WITHIN THE MEANING OF ARTICLE 107(1) TFEU

| (159) | 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’. |
| --- | --- |

(159)

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’.

| (160) | The criteria laid down in Article 107(1) are cumulative. Therefore, in order to determine whether the notified measures constitute State aid within the meaning of Article 107(1), all the above mentioned conditions need to be fulfilled. Namely, the financial support should:






  (a) | be granted by a Member State or through State resources, |
| --- | --- | --- |

(160)

The criteria laid down in Article 107(1) are cumulative. Therefore, in order to determine whether the notified measures constitute State aid within the meaning of Article 107(1), all the above mentioned conditions need to be fulfilled. Namely, the financial support should:

(a)

be granted by a Member State or through State resources,

| (b) | favour certain undertakings or the production of certain goods, |
| --- | --- |

(b)

favour certain undertakings or the production of certain goods,

| (c) | distort or threaten to distort competition, |
| --- | --- |

(c)

distort or threaten to distort competition,

| (d) | affect trade between Member States. |
| --- | --- |

(d)

affect trade between Member States.

7.1.1.   COMPENSATION FOR THE OPERATION OF THE TWO ADDITIONAL ROUTES LINKING SARDINIA TO THE MAINLAND

State resources

State resources

| (161) | In order to be qualified as State aid, a financial measure must be imputable to the State and granted directly or indirectly by means of State resources. |
| --- | --- |

(161)

In order to be qualified as State aid, a financial measure must be imputable to the State and granted directly or indirectly by means of State resources.

| (162) | The compensation for the operation by Saremar of the two maritime routes is disbursed by RAS from the regional budget. It is therefore imputable to the State and is given through State resources. |
| --- | --- |

(162)

The compensation for the operation by Saremar of the two maritime routes is disbursed by RAS from the regional budget. It is therefore imputable to the State and is given through State resources.

| (163) | The subsidy granted to Saremar for the promotional activities may be imputed to the State given that the Agency is wholly owned by RAS and serves to implement regional policies in terms of tourism and regional development. Neither the information at the disposal of the Commission nor the comments by interested parties submitted following the opening of the procedure called into question the imputability to the State of that measure. |
| --- | --- |

(163)

The subsidy granted to Saremar for the promotional activities may be imputed to the State given that the Agency is wholly owned by RAS and serves to implement regional policies in terms of tourism and regional development. Neither the information at the disposal of the Commission nor the comments by interested parties submitted following the opening of the procedure called into question the imputability to the State of that measure.

| (164) | As concerns the comfort letters, the Commission notes that they merely lay down RAS's commitment to notify the banks of any change in its shareholding in the company, coupled with a declaration that RAS would ensure, in its capacity as a shareholder, that Saremar is managed in an efficient, effective and economic way. Since those comfort letters did not guarantee any financial obligation of Saremar, they did not create a future potential burden on State resources. On this basis, the Commission concludes that they do not constitute State aid. |
| --- | --- |

(164)

As concerns the comfort letters, the Commission notes that they merely lay down RAS's commitment to notify the banks of any change in its shareholding in the company, coupled with a declaration that RAS would ensure, in its capacity as a shareholder, that Saremar is managed in an efficient, effective and economic way. Since those comfort letters did not guarantee any financial obligation of Saremar, they did not create a future potential burden on State resources. On this basis, the Commission concludes that they do not constitute State aid.

| (165) | All other measures are granted by RAS directly from the regional budget and therefore amount to State resources. |
| --- | --- |

(165)

All other measures are granted by RAS directly from the regional budget and therefore amount to State resources.

Selectivity

Selectivity

| (166) | All measures under assessment, including the compensation for the operation of maritime routes, are granted to one recipient and are therefore clearly selective. |
| --- | --- |

(166)

All measures under assessment, including the compensation for the operation of maritime routes, are granted to one recipient and are therefore clearly selective.

Economic advantage

Economic advantage

Compensation for the operation of the two routes between Sardinia and mainland Italy

Compensation for the operation of the two routes between Sardinia and mainland Italy

| (167) | During the formal investigation procedure, RAS argued first, that the compensation for the operation of the two routes was MEIP-compliant. RAS then assumed that it fulfilled the Altmark criteria. |
| --- | --- |

(167)

During the formal investigation procedure, RAS argued first, that the compensation for the operation of the two routes was MEIP-compliant. RAS then assumed that it fulfilled the Altmark criteria.

| (168) | The extent to which the compensation fulfils the Altmark criteria is assessed in recital 180 et seq. As a general observation, however, the Commission notes that it is necessary to distinguish between application of the MEIP test and the fulfilment of the Altmark criteria. While both tests serve to assess the existence of an advantage for the beneficiary, they clearly refer to the different roles that public authorities can take when adopting financial measures in favour of a given undertaking. The MEIP applies when the public authorities act in their role of shareholders (i.e. in the first place with a view to obtain a profit from the operation), whilst Altmark is relevant when the public authorities pursue public interest objectives, which are not typical of a private operator (i.e. the perspective to make a profit is of secondary importance, if any) (30). The arguments raised by RAS to justify the compensation for the operation of the two routes between Sardinia and mainland Italy appear therefore contradictory. |
| --- | --- |

(168)

The extent to which the compensation fulfils the Altmark criteria is assessed in recital 180 et seq. As a general observation, however, the Commission notes that it is necessary to distinguish between application of the MEIP test and the fulfilment of the Altmark criteria. While both tests serve to assess the existence of an advantage for the beneficiary, they clearly refer to the different roles that public authorities can take when adopting financial measures in favour of a given undertaking. The MEIP applies when the public authorities act in their role of shareholders (i.e. in the first place with a view to obtain a profit from the operation), whilst Altmark is relevant when the public authorities pursue public interest objectives, which are not typical of a private operator (i.e. the perspective to make a profit is of secondary importance, if any) (30). The arguments raised by RAS to justify the compensation for the operation of the two routes between Sardinia and mainland Italy appear therefore contradictory.

30

| (169) | The Commission notes moreover, that a measure can only be MEIP-compliant if based on sound viability perspectives for the beneficiary. RAS argues that the process and steps it followed before taking the decision to entrust Saremar with the operation of the routes in question are comparable to those of a private market operator in similar circumstances. Nonetheless, the business plan or market investigation presumably carried out by Saremar before obtaining public support has not been provided to the Commission in the course of the investigation, even though it was for the Member State to provide objective evidence showing that the compensation for the operation of the two routes between Sardinia and mainland Italy is to be ascribed to the State acting as shareholder (31). On the contrary, by letter of 26 September 2013 RAS confirmed that, although the preparation of a business plan was foreseen by Decision 36/6/EC, no such plan was prepared as concerns the operation of the routes in summer 2012. Thus, at least as concerns the 2012 summer season, the decision to resume operation on the two routes was taken by RAS before any business plan was drawn up by Saremar. Furthermore, according to Saremar's balance sheet, and as confirmed by Saremar in the framework of the national civil proceedings, the operation of the two routes in the 2011 summer season had been loss making and could not therefore reasonably justify the decision to continue operation of the same routes in 2012, notably in the absence of any business plan or projections showing that the routes would have become substantially profitable in the future. In conclusion, the Commission finds that the compensation for the operation of the two routes between Sardinia and mainland Italy cannot be ascribed to the State acting as shareholder and as a consequence does not comply with the MEIP. |
| --- | --- |

(169)

The Commission notes moreover, that a measure can only be MEIP-compliant if based on sound viability perspectives for the beneficiary. RAS argues that the process and steps it followed before taking the decision to entrust Saremar with the operation of the routes in question are comparable to those of a private market operator in similar circumstances. Nonetheless, the business plan or market investigation presumably carried out by Saremar before obtaining public support has not been provided to the Commission in the course of the investigation, even though it was for the Member State to provide objective evidence showing that the compensation for the operation of the two routes between Sardinia and mainland Italy is to be ascribed to the State acting as shareholder (31). On the contrary, by letter of 26 September 2013 RAS confirmed that, although the preparation of a business plan was foreseen by Decision 36/6/EC, no such plan was prepared as concerns the operation of the routes in summer 2012. Thus, at least as concerns the 2012 summer season, the decision to resume operation on the two routes was taken by RAS before any business plan was drawn up by Saremar. Furthermore, according to Saremar's balance sheet, and as confirmed by Saremar in the framework of the national civil proceedings, the operation of the two routes in the 2011 summer season had been loss making and could not therefore reasonably justify the decision to continue operation of the same routes in 2012, notably in the absence of any business plan or projections showing that the routes would have become substantially profitable in the future. In conclusion, the Commission finds that the compensation for the operation of the two routes between Sardinia and mainland Italy cannot be ascribed to the State acting as shareholder and as a consequence does not comply with the MEIP.

31

| (170) | As regards the alleged fulfilment of the Altmark criteria, Italy claims that the public mission defined was the operation of the two cabotage routes mentioned above at affordable rates (32). In this context, the Commission notes that services could only be qualified as SGEIs if in the absence of a public compensation they would not be provided by the market satisfactorily and under conditions (such as price) similar to those defined by the public authorities (33). According to RAS, entrusting Saremar with the provisional operation of the two routes was a short-term measure, until more effective remedial measures were in place to address the market failure in the provision of affordable connections between Sardinia and mainland Italy. |
| --- | --- |

(170)

As regards the alleged fulfilment of the Altmark criteria, Italy claims that the public mission defined was the operation of the two cabotage routes mentioned above at affordable rates (32). In this context, the Commission notes that services could only be qualified as SGEIs if in the absence of a public compensation they would not be provided by the market satisfactorily and under conditions (such as price) similar to those defined by the public authorities (33). According to RAS, entrusting Saremar with the provisional operation of the two routes was a short-term measure, until more effective remedial measures were in place to address the market failure in the provision of affordable connections between Sardinia and mainland Italy.

32

33

| (171) | While not explicitly qualifying the operation of the two routes to the mainland as SGEIs, the entrustment acts refer to affordability of fares as a general pre-requisite of operation. Throughout the formal investigation procedure, RAS and Saremar have insisted on the SGEI justification of the measure. This justification is particularly evident in their comments on the 2012 Decision, notwithstanding the additional argument on MEIP-compliance. |
| --- | --- |

(171)

While not explicitly qualifying the operation of the two routes to the mainland as SGEIs, the entrustment acts refer to affordability of fares as a general pre-requisite of operation. Throughout the formal investigation procedure, RAS and Saremar have insisted on the SGEI justification of the measure. This justification is particularly evident in their comments on the 2012 Decision, notwithstanding the additional argument on MEIP-compliance.

| (172) | In what follows, the Commission will examine the alleged observance of the conditions set out by the Court in its judgement in the Altmark case, in order to conclude whether or not the compensation paid to Saremar for the operation of public services constitutes an advantage within the meaning of Article 107(1) TFEU. Those conditions are cumulative, so that if only one of them is not fulfilled, the compensation is deemed to confer an advantage within the meaning of Article 107(1) TFEU to the beneficiary. Those conditions may be summarised as follows:






  (a) | the recipient undertaking must actually have public service obligations to discharge and these obligations must be clearly defined (Altmark 1); |
| --- | --- | --- |

(172)

In what follows, the Commission will examine the alleged observance of the conditions set out by the Court in its judgement in the Altmark case, in order to conclude whether or not the compensation paid to Saremar for the operation of public services constitutes an advantage within the meaning of Article 107(1) TFEU. Those conditions are cumulative, so that if only one of them is not fulfilled, the compensation is deemed to confer an advantage within the meaning of Article 107(1) TFEU to the beneficiary. Those conditions may be summarised as follows:

(a)

the recipient undertaking must actually have public service obligations to discharge and these obligations must be clearly defined (Altmark 1);

| (b) | the parameters on the basis of which the compensation is calculated must be established in advance in an objective and transparent manner (Altmark 2); |
| --- | --- |

(b)

the parameters on the basis of which the compensation is calculated must be established in advance in an objective and transparent manner (Altmark 2);

| (c) | the compensation cannot exceed what is necessary to cover all or part of the costs incurred in the discharge of public service obligations, taking into account the relevant receipts and a reasonable profit for discharging those obligations (Altmark 3); |
| --- | --- |

(c)

the compensation cannot exceed what is necessary to cover all or part of the costs incurred in the discharge of public service obligations, taking into account the relevant receipts and a reasonable profit for discharging those obligations (Altmark 3);

| (d) | where the undertaking which is to discharge public service obligations, in a specific case, is not chosen pursuant to a public procurement procedure which would allow for the selection of the tenderer capable of providing those services at the least cost to the community, the level of compensation needed must be determined on the basis of an analysis of the costs which a typical undertaking, well run and adequately provided with means of transport so as to be able to meet the necessary public service requirements, would have incurred in discharging those obligations, taking into account the relevant revenues and a reasonable profit for discharging the obligations (Altmark 4). |
| --- | --- |

(d)

where the undertaking which is to discharge public service obligations, in a specific case, is not chosen pursuant to a public procurement procedure which would allow for the selection of the tenderer capable of providing those services at the least cost to the community, the level of compensation needed must be determined on the basis of an analysis of the costs which a typical undertaking, well run and adequately provided with means of transport so as to be able to meet the necessary public service requirements, would have incurred in discharging those obligations, taking into account the relevant revenues and a reasonable profit for discharging the obligations (Altmark 4).

Altmark 2

Altmark 2

| (173) | For the sake of clarity, in the present case the Commission considers it more expedient to start its analysis from the second Altmark condition. |
| --- | --- |

(173)

For the sake of clarity, in the present case the Commission considers it more expedient to start its analysis from the second Altmark condition.

| (174) | In this respect, the Commission notes that the parameters for the calculation of the compensation have not been established in advance. In fact, no explicit reference to any compensation to be granted to Saremar for the operation of the routes in question was laid down by the entrustment acts, namely Decision 25/69/EC, Decision 48/65/EC and Decision 36/6/EC for the Golfo Aranci – Civitavecchia route, and Decision 27/4/EC and Decision 36/6/EC for the Vado Ligure — Porto Torres route. RAS itself admitted that no compensation had initially been foreseen because the routes were considered commercially viable and Saremar was meant to exploit those routes so as to reach economic balance. Indeed, RAS's intention was not to compensate Saremar for the services in question. Since first, no compensation was foreseen for the operation of the two routes in question, and second, Saremar was granted a margin of manoeuvre to adjust the fares precisely in order to break-even, the Commission cannot consider that the parameters for the calculation of that (inexistent) compensation were established in advance in an objective and transparent manner. |
| --- | --- |

(174)

In this respect, the Commission notes that the parameters for the calculation of the compensation have not been established in advance. In fact, no explicit reference to any compensation to be granted to Saremar for the operation of the routes in question was laid down by the entrustment acts, namely Decision 25/69/EC, Decision 48/65/EC and Decision 36/6/EC for the Golfo Aranci – Civitavecchia route, and Decision 27/4/EC and Decision 36/6/EC for the Vado Ligure — Porto Torres route. RAS itself admitted that no compensation had initially been foreseen because the routes were considered commercially viable and Saremar was meant to exploit those routes so as to reach economic balance. Indeed, RAS's intention was not to compensate Saremar for the services in question. Since first, no compensation was foreseen for the operation of the two routes in question, and second, Saremar was granted a margin of manoeuvre to adjust the fares precisely in order to break-even, the Commission cannot consider that the parameters for the calculation of that (inexistent) compensation were established in advance in an objective and transparent manner.

| (175) | As Decision 20/57/EC shows, the obligation to maintain separate accounting aimed at ensuring that Saremar ensured economic equilibrium in operating the routes, rather than establishing the parameters for a future hypothetical compensation, which was as a matter of fact excluded from the outset. |
| --- | --- |

(175)

As Decision 20/57/EC shows, the obligation to maintain separate accounting aimed at ensuring that Saremar ensured economic equilibrium in operating the routes, rather than establishing the parameters for a future hypothetical compensation, which was as a matter of fact excluded from the outset.

| (176) | RAS's decision to compensate Saremar for operating the two routes in question was only taken on 7 August 2012 and, therefore, the compensation mechanism was developed ex-post, after the deficit in the operation of the routes had emerged. As already mentioned, neither the amount of compensation, nor the parameters for its calculation could have been established ex-ante since the operation of the two routes, considered to be the ‘main commercial and tourist lines’ (34), was considered viable and the routes in question were meant to be exploited by Saremar on economic balance. The Commission recalls that the entrustment acts clearly laid down Saremar's leeway in adjusting the fares so as to ensure the viability of operation of the two routes. The Commission further notes that, not only was Saremar entitled to amend the fares in keeping with the viability objective, but it actually did so. In particular, Saremar's proposal for fares on the Porto Torres – Vado Ligure route in 2012 mentioned that proposed fares reflected a slight increase as compared to those which had been applied on the same route in 2011 to allow the company to break even. Based on the proposed tariff Saremar had at that time forecasted a EUR [...] (*1) surplus on the route. |
| --- | --- |

(176)

RAS's decision to compensate Saremar for operating the two routes in question was only taken on 7 August 2012 and, therefore, the compensation mechanism was developed ex-post, after the deficit in the operation of the routes had emerged. As already mentioned, neither the amount of compensation, nor the parameters for its calculation could have been established ex-ante since the operation of the two routes, considered to be the ‘main commercial and tourist lines’ (34), was considered viable and the routes in question were meant to be exploited by Saremar on economic balance. The Commission recalls that the entrustment acts clearly laid down Saremar's leeway in adjusting the fares so as to ensure the viability of operation of the two routes. The Commission further notes that, not only was Saremar entitled to amend the fares in keeping with the viability objective, but it actually did so. In particular, Saremar's proposal for fares on the Porto Torres – Vado Ligure route in 2012 mentioned that proposed fares reflected a slight increase as compared to those which had been applied on the same route in 2011 to allow the company to break even. Based on the proposed tariff Saremar had at that time forecasted a EUR [...] (*1) surplus on the route.

ex-post

ex-ante

main commercial and tourist

34

*1

| (177) | Furthermore, Decision 36/6/EC mentioned that the ‘obligation to maintain economic balance, in order to avoid granting incompatible state aids, does not allow in the immediate the start-up of other routes’. Hence, already at the time the entrustment acts were issued it was clear that RAS intended to grant no compensation for the two routes in question. Moreover, it is also clear that already at that time RAS was aware that, in the light of the prevailing market situation, subsidies granted for the operation of cabotage routes to mainland Italy would probably qualify as incompatible State aid. The Italian Court of Auditors in its report on RAS's financial statements for 2012 concluded: ‘the operation of the two routes [...] far from observing the obligation to maintain economic balance so as to avoid granting incompatible State aids, as laid down by Decision 48/65/EC, would have generated absent the EUR 10 million paid by the Region a deficit in excess of EUR 13 million’ (35). |
| --- | --- |

(177)

Furthermore, Decision 36/6/EC mentioned that the ‘obligation to maintain economic balance, in order to avoid granting incompatible state aids, does not allow in the immediate the start-up of other routes’. Hence, already at the time the entrustment acts were issued it was clear that RAS intended to grant no compensation for the two routes in question. Moreover, it is also clear that already at that time RAS was aware that, in the light of the prevailing market situation, subsidies granted for the operation of cabotage routes to mainland Italy would probably qualify as incompatible State aid. The Italian Court of Auditors in its report on RAS's financial statements for 2012 concluded: ‘the operation of the two routes [...] far from observing the obligation to maintain economic balance so as to avoid granting incompatible State aids, as laid down by Decision 48/65/EC, would have generated absent the EUR 10 million paid by the Region a deficit in excess of EUR 13 million’ (35).

35

| (178) | Finally, as explained below with regard to the analysis of the first Altmark condition, the Commission considers that for part of the period analysed in the present Decision, Saremar was not entrusted with an obligation clearly defining the level of fares to be considered as affordable. Since the parameters for calculating the compensation for the discharge of PSOs concerning affordable fares must necessarily be linked to the level of fares considered affordable and that level was not always clearly defined in the present case, the parameters for calculating the compensation cannot be considered as established in advance in an objective and transparent manner. |
| --- | --- |

(178)

Finally, as explained below with regard to the analysis of the first Altmark condition, the Commission considers that for part of the period analysed in the present Decision, Saremar was not entrusted with an obligation clearly defining the level of fares to be considered as affordable. Since the parameters for calculating the compensation for the discharge of PSOs concerning affordable fares must necessarily be linked to the level of fares considered affordable and that level was not always clearly defined in the present case, the parameters for calculating the compensation cannot be considered as established in advance in an objective and transparent manner.

| (179) | In conclusion, the Commission considers that the second Altmark condition cannot be considered as fulfilled in the present case and therefore the compensation granted an advantage to Saremar within the meaning of Article 107(1) TFEU. |
| --- | --- |

(179)

In conclusion, the Commission considers that the second Altmark condition cannot be considered as fulfilled in the present case and therefore the compensation granted an advantage to Saremar within the meaning of Article 107(1) TFEU.

Altmark 1

Altmark 1

| (180) | The Commission also has strong doubts as regards the fulfilment of the first Altmark condition. |
| --- | --- |

(180)

The Commission also has strong doubts as regards the fulfilment of the first Altmark condition.

| (181) | In this connection, it must be observed that there is no uniform and precise definition of a service that may constitute a SGEI under Union law, either within the meaning of the first Altmark condition or within the meaning of Article 106(2) TFEU (36). Point 46 of the Communication from the Commission on the application of the European Union State aid rules to compensation granted for the provision of services of general economic interest (37) is worded as follows:

  ‘In the absence of specific Union rules defining the scope for the existence of an SGEI, Member States have a wide margin of discretion in defining a given service as an SGEI and in granting compensation to the service provider. The Commission's competence in this respect is limited to checking whether the Member State has made a manifest error when defining the service as an SGEI and to assessing any State aid involved in the compensation. Where specific Union rules exist, the Member States' discretion is further bound by those rules, without prejudice to the Commission's duty to carry out an assessment of whether the SGEI has been correctly defined for the purpose of State aid control.’ |
| --- | --- |

(181)

In this connection, it must be observed that there is no uniform and precise definition of a service that may constitute a SGEI under Union law, either within the meaning of the first Altmark condition or within the meaning of Article 106(2) TFEU (36). Point 46 of the Communication from the Commission on the application of the European Union State aid rules to compensation granted for the provision of services of general economic interest (37) is worded as follows:

36

37

‘In the absence of specific Union rules defining the scope for the existence of an SGEI, Member States have a wide margin of discretion in defining a given service as an SGEI and in granting compensation to the service provider. The Commission's competence in this respect is limited to checking whether the Member State has made a manifest error when defining the service as an SGEI and to assessing any State aid involved in the compensation. Where specific Union rules exist, the Member States' discretion is further bound by those rules, without prejudice to the Commission's duty to carry out an assessment of whether the SGEI has been correctly defined for the purpose of State aid control.’

| (182) | National authorities are therefore entitled to take the view that certain services are in the general interest and must be operated by means of PSOs to ensure that the public interest is protected when market forces do not suffice to guarantee that they are provided at the level or conditions required. |
| --- | --- |

(182)

National authorities are therefore entitled to take the view that certain services are in the general interest and must be operated by means of PSOs to ensure that the public interest is protected when market forces do not suffice to guarantee that they are provided at the level or conditions required.

| (183) | In this case, the allegedly public service mission defined by Italy was the operation of two cabotage routes connecting mainland Italy to Sardinia, namely Civitavecchia – Olbia/Golfo Aranci and Vado Ligure – Porto Torres at affordable rates. |
| --- | --- |

(183)

In this case, the allegedly public service mission defined by Italy was the operation of two cabotage routes connecting mainland Italy to Sardinia, namely Civitavecchia – Olbia/Golfo Aranci and Vado Ligure – Porto Torres at affordable rates.

Image 1

| (184) | In the field of cabotage, detailed Union rules governing PSOs have been laid down in the Maritime Cabotage Regulation and, for the purpose of examining potential State aid to undertakings engaged in maritime transport, in the Community guidelines on State aid to maritime transport (hereinafter the Maritime Guidelines) (38). |
| --- | --- |

(184)

In the field of cabotage, detailed Union rules governing PSOs have been laid down in the Maritime Cabotage Regulation and, for the purpose of examining potential State aid to undertakings engaged in maritime transport, in the Community guidelines on State aid to maritime transport (hereinafter the Maritime Guidelines) (38).

the Maritime Guidelines

38

| (185) | Article 4(1) of the Maritime Cabotage Regulation provides:

  ‘A Member State may conclude public service contracts with or impose public service obligations as a condition for the provision of cabotage services, on shipping companies participating in regular services to, from and between islands. Whenever a Member State concludes public service contracts or imposes public service obligations, it shall do so on a non-discriminatory basis in respect of all Community shipowners.’ |
| --- | --- |

(185)

Article 4(1) of the Maritime Cabotage Regulation provides:

‘A Member State may conclude public service contracts with or impose public service obligations as a condition for the provision of cabotage services, on shipping companies participating in regular services to, from and between islands. Whenever a Member State concludes public service contracts or imposes public service obligations, it shall do so on a non-discriminatory basis in respect of all Community shipowners.’

| (186) | In accordance with section 9 of the Maritime Guidelines, ‘public service obligations (PSOs) may be imposed or public service contracts (PSCs) may be concluded for the services indicated in Article 4 of Regulation (EEC) No 3577/92’, i.e. scheduled services to, from and between islands. |
| --- | --- |

(186)

In accordance with section 9 of the Maritime Guidelines, ‘public service obligations (PSOs) may be imposed or public service contracts (PSCs) may be concluded for the services indicated in Article 4 of Regulation (EEC) No 3577/92’, i.e. scheduled services to, from and between islands.

| (187) | It results from established case-law that PSOs may only be imposed if justified by the need to ensure adequate regular maritime transport services which cannot be ensured by market forces alone (39). The Communication on interpretation of the Maritime Cabotage Regulation (40) confirms that ‘it is for the Member States (including regional and local authorities where appropriate) to determine which routes require public service obligations. In particular, public service obligations may be envisaged for regular (scheduled) island cabotage services in the event of market failure to provide adequate services.’ Moreover, Article 2(4) of the Maritime Cabotage Regulation defines PSOs as obligations which the ship-owner in question, if he were considering his own commercial interest, would not assume or would not assume to the same extent or under the same conditions. |
| --- | --- |

(187)

It results from established case-law that PSOs may only be imposed if justified by the need to ensure adequate regular maritime transport services which cannot be ensured by market forces alone (39). The Communication on interpretation of the Maritime Cabotage Regulation (40) confirms that ‘it is for the Member States (including regional and local authorities where appropriate) to determine which routes require public service obligations. In particular, public service obligations may be envisaged for regular (scheduled) island cabotage services in the event of market failure to provide adequate services.’ Moreover, Article 2(4) of the Maritime Cabotage Regulation defines PSOs as obligations which the ship-owner in question, if he were considering his own commercial interest, would not assume or would not assume to the same extent or under the same conditions.

39

40

| (188) | As mentioned above, RAS considers that in this case PSOs have been imposed in terms of requiring Saremar to charge affordable rates on the two cabotage routes to mainland Italy. The table below details the specific fares to be charged by Saremar on the routes, as laid down by the entrustment acts. For 2012, given that no precise fares were mentioned in the entrustment acts, the fares proposed by Saremar to RAS were considered.

  Table 3


  Passenger fares (deck passage) laid down by the entrustment acts | Golfo Aranci (Olbia) – Civitavecchia | Vado Ligure — Porto Torres |
| --- | --- | --- | --- |
| 2011 summer season | (Decision 25/69/EC)






  — | EUR 21 from 15 June - 15 July and 1 - 15 September; |

(188)

As mentioned above, RAS considers that in this case PSOs have been imposed in terms of requiring Saremar to charge affordable rates on the two cabotage routes to mainland Italy. The table below details the specific fares to be charged by Saremar on the routes, as laid down by the entrustment acts. For 2012, given that no precise fares were mentioned in the entrustment acts, the fares proposed by Saremar to RAS were considered.

Table 3

Table 3

Passenger fares (deck passage) laid down by the entrustment acts

Passenger fares (deck passage) laid down by the entrustment acts

Golfo Aranci (Olbia) – Civitavecchia

Vado Ligure — Porto Torres

2011 summer season

(Decision 25/69/EC)

—

EUR 21 from 15 June - 15 July and 1 - 15 September;

| — | EUR 35 from 16 July - 31 August. |
| --- | --- |

—

EUR 35 from 16 July - 31 August.

(Decision 27/4/EC)

| — | EUR 35 from 22 June - 15 July and 1 - 15 September; |
| --- | --- |

—

EUR 35 from 22 June - 15 July and 1 - 15 September;

| — | EUR 40 from 16 July - 31 August, |
| --- | --- |

—

EUR 40 from 16 July - 31 August,

A 15 % discount would apply to Sardinian residents.

2012 winter season

(Decision 48/65/EC)

| — | Saremar was to apply the low season fare charged in 2011 (i.e. EUR 21). |
| --- | --- |

—

Saremar was to apply the low season fare charged in 2011 (i.e. EUR 21).

Not operated

Not operated

2012 summer season

| — | EUR 21 from 16 January to 30 May, June and July (Mondays to Thursdays) and from 3 September to 31 December 2012; |
| --- | --- |

—

EUR 21 from 16 January to 30 May, June and July (Mondays to Thursdays) and from 3 September to 31 December 2012;

| — | EUR 25 June and July (Fridays to Sundays), 30 and 31 July, 1 and 2 September; |
| --- | --- |

—

EUR 25 June and July (Fridays to Sundays), 30 and 31 July, 1 and 2 September;

| — | EUR 35 from 1 to 31 August. |
| --- | --- |

—

EUR 35 from 1 to 31 August.

| — | EUR 35 (EUR 30 for residents) from 1 to 14 June and from 3 to 15 September; |
| --- | --- |

—

EUR 35 (EUR 30 for residents) from 1 to 14 June and from 3 to 15 September;

| — | EUR 38 (EUR 33 for residents) from 15 June to 13 July; |
| --- | --- |

—

EUR 38 (EUR 33 for residents) from 15 June to 13 July;

| — | EUR 44 (EUR 38 for residents) from 14 July to 2 September. |
| --- | --- |

—

EUR 44 (EUR 38 for residents) from 14 July to 2 September.

| (189) | The Commission notes that the entrustment acts do not impose other PSOs as concerns the frequency, capacity, or regularity of the (mixed) services offered by Saremar, with the possible exception of Decision 48/65/EC on the start-up of the service on the Olbia — Civitavecchia route in the 2012 winter season, which laid down that Saremar was required to operate the route daily by cruise ferries. Nor have the Italian authorities submitted to the Commission in the course of the investigation that other requirements have been imposed on Saremar which had not been outlined by the aforementioned entrustment acts. |
| --- | --- |

(189)

The Commission notes that the entrustment acts do not impose other PSOs as concerns the frequency, capacity, or regularity of the (mixed) services offered by Saremar, with the possible exception of Decision 48/65/EC on the start-up of the service on the Olbia — Civitavecchia route in the 2012 winter season, which laid down that Saremar was required to operate the route daily by cruise ferries. Nor have the Italian authorities submitted to the Commission in the course of the investigation that other requirements have been imposed on Saremar which had not been outlined by the aforementioned entrustment acts.

| (190) | The Commission considers that the obligation to apply affordable fares, even taken in isolation, could be qualified as a PSO and therefore that the public interest objective pursued in this case could be legitimate, notably in the context of the increase in prices of passenger transport services to the island in the summer of 2011, to the extent that it can be considered that the market did not already offer a comparable service at those fares. |
| --- | --- |

(190)

The Commission considers that the obligation to apply affordable fares, even taken in isolation, could be qualified as a PSO and therefore that the public interest objective pursued in this case could be legitimate, notably in the context of the increase in prices of passenger transport services to the island in the summer of 2011, to the extent that it can be considered that the market did not already offer a comparable service at those fares.

| (191) | In order to verify the existence of the PSOs entrusted to Saremar and whether it was necessary to compensate the latter for the supplementary costs incurred in meeting these obligations, the Commission must therefore examine:






  (a) | first, whether the service would be inadequate if its provision were left to the market forces alone in the light of the public service requirement concerning affordable fares imposed by the Member State, and |
| --- | --- | --- |

(191)

In order to verify the existence of the PSOs entrusted to Saremar and whether it was necessary to compensate the latter for the supplementary costs incurred in meeting these obligations, the Commission must therefore examine:

(a)

first, whether the service would be inadequate if its provision were left to the market forces alone in the light of the public service requirement concerning affordable fares imposed by the Member State, and

| (b) | second, whether the operator was indeed entrusted with public service obligations which were clearly defined. |
| --- | --- |

(b)

second, whether the operator was indeed entrusted with public service obligations which were clearly defined.

| (192) | On the grounds detailed hereunder, the Commission concludes that those conditions have not been fully respected in the present case. |
| --- | --- |

(192)

On the grounds detailed hereunder, the Commission concludes that those conditions have not been fully respected in the present case.

2011 and 2012 summer seasons

2011 and 2012 summer seasons

| (193) | In summer 2011, when Saremar was entrusted with the operation of the two routes, four other operators provided regular service on the Civitavecchia – Olbia route and three on the Genova — Porto Torres route (41). Moreover, Tirrenia was offering similar services to those provided by Saremar and which met the rather vague obligations laid down by the act(s) of entrustment. Indeed, as detailed above, until July 2012 Tirrenia provided mixed services on both the Genova – Porto Torres and Civitavecchia – Olbia routes under a public service regime subject to PSOs concerning the type of vessel, the frequency of service and reduced rates to Sardinian residents and special categories under the initial Conventions (see recital 14 above). Originally the initial Convention, which remained in force until June 2012, also laid down PSOs in terms of fares so as to guarantee affordability of the services in question. In view of the fact that certain routes, and notably the two routes under assessment, ‘ensured particularly high traffic levels’, the Italian authorities decided to suspend the obligations concerning fares imposed to Tirrenia in the summer season (with the exception of fares for residents and other obligations concerning frequencies and type of vessels) so as to ensure that Tirrenia enjoys full commercial freedom as regards prices offered to its clients (42). The same commercial freedom was granted to Tirrenia/CIN by the new Convention with regard to fares on the two routes in question as of July 2012 (43). Therefore, the choice to leave Tirrenia and Tirrenia/CIN free to set prices in the summer season when high traffic levels are recorded and several other shipping companies operate those routes is not a random choice of the Italian authorities, but the result of their assessment as regards the adequacy of the services provided by market forces in that period of the year. The fact that RAS itself initially considered that Saremar could operate the two routes offering affordable prices and reaching economic equilibrium suggests that market conditions on those routes are such that market forces are capable of offering satisfactory services, notably in summer when traffic is particularly high. |
| --- | --- |

(193)

In summer 2011, when Saremar was entrusted with the operation of the two routes, four other operators provided regular service on the Civitavecchia – Olbia route and three on the Genova — Porto Torres route (41). Moreover, Tirrenia was offering similar services to those provided by Saremar and which met the rather vague obligations laid down by the act(s) of entrustment. Indeed, as detailed above, until July 2012 Tirrenia provided mixed services on both the Genova – Porto Torres and Civitavecchia – Olbia routes under a public service regime subject to PSOs concerning the type of vessel, the frequency of service and reduced rates to Sardinian residents and special categories under the initial Conventions (see recital 14 above). Originally the initial Convention, which remained in force until June 2012, also laid down PSOs in terms of fares so as to guarantee affordability of the services in question. In view of the fact that certain routes, and notably the two routes under assessment, ‘ensured particularly high traffic levels’, the Italian authorities decided to suspend the obligations concerning fares imposed to Tirrenia in the summer season (with the exception of fares for residents and other obligations concerning frequencies and type of vessels) so as to ensure that Tirrenia enjoys full commercial freedom as regards prices offered to its clients (42). The same commercial freedom was granted to Tirrenia/CIN by the new Convention with regard to fares on the two routes in question as of July 2012 (43). Therefore, the choice to leave Tirrenia and Tirrenia/CIN free to set prices in the summer season when high traffic levels are recorded and several other shipping companies operate those routes is not a random choice of the Italian authorities, but the result of their assessment as regards the adequacy of the services provided by market forces in that period of the year. The fact that RAS itself initially considered that Saremar could operate the two routes offering affordable prices and reaching economic equilibrium suggests that market conditions on those routes are such that market forces are capable of offering satisfactory services, notably in summer when traffic is particularly high.

41

ensured particularly high traffic levels

42

43

| (194) | On the other hand, no objective justification has been provided by RAS as to why the services already provided by Tirrenia under the initial Convention, which had been already prolonged at the time of Saremar's entrustment, would not have been adequate to guarantee territorial continuity. The argument raised by RAS as regards the price increase recorded in 2011 is of no avail in this context. In fact, the NCA Decision on the increase in prices to/from Sardinia only sanctioned private operators for the violation of Article 101 TFEU. The NCA Decision clarified that whereas Tirrenia had also increased prices to a certain extent in the reference period, such increase was significantly lower than that of private competitors. |
| --- | --- |

(194)

On the other hand, no objective justification has been provided by RAS as to why the services already provided by Tirrenia under the initial Convention, which had been already prolonged at the time of Saremar's entrustment, would not have been adequate to guarantee territorial continuity. The argument raised by RAS as regards the price increase recorded in 2011 is of no avail in this context. In fact, the NCA Decision on the increase in prices to/from Sardinia only sanctioned private operators for the violation of Article 101 TFEU. The NCA Decision clarified that whereas Tirrenia had also increased prices to a certain extent in the reference period, such increase was significantly lower than that of private competitors.

| (195) | As to RAS's argument that the imposition of PSOs would be justified by the uncertainty concerning the privatisation process of Tirrenia, the Commission notes that the initial Convention was prolonged until completion of the privatisation process already in 2010. Consequently, any delay in the sale of the business branch operating the public services could not have caused any interruption in the operation of the relevant routes. |
| --- | --- |

(195)

As to RAS's argument that the imposition of PSOs would be justified by the uncertainty concerning the privatisation process of Tirrenia, the Commission notes that the initial Convention was prolonged until completion of the privatisation process already in 2010. Consequently, any delay in the sale of the business branch operating the public services could not have caused any interruption in the operation of the relevant routes.

| (196) | As concerns the 2012 summer season, by Decision 36/6/EC of 1 September 2011 Saremar was entrusted with the operation between 15 May and 15 September 2012 of the Golfo Aranci (Olbia) – Civitavecchia and Vado Ligure — Porto Torres routes. RAS submitted that the decision to resume operation of the routes in 2012 was based on viability perspectives, supported by the results recorded in summer 2011. Both routes were effectively operated as of 1 June 2012. |
| --- | --- |

(196)

As concerns the 2012 summer season, by Decision 36/6/EC of 1 September 2011 Saremar was entrusted with the operation between 15 May and 15 September 2012 of the Golfo Aranci (Olbia) – Civitavecchia and Vado Ligure — Porto Torres routes. RAS submitted that the decision to resume operation of the routes in 2012 was based on viability perspectives, supported by the results recorded in summer 2011. Both routes were effectively operated as of 1 June 2012.

| (197) | As of July 2012, when the new Convention between the Italian State and CIN entered into force, Tirrenia's presence on the two routes was replaced by Tirrenia/CIN. The new Convention sets out minimum frequencies and capacity as well as maximum prices for the winter season and reduced rates for Sardinian residents and special categories throughout the year. |
| --- | --- |

(197)

As of July 2012, when the new Convention between the Italian State and CIN entered into force, Tirrenia's presence on the two routes was replaced by Tirrenia/CIN. The new Convention sets out minimum frequencies and capacity as well as maximum prices for the winter season and reduced rates for Sardinian residents and special categories throughout the year.

| (198) | RAS defends that the operation in the summer season of certain routes under the new Convention, including the two routes subject to the assessment, is not subject to PSOs on fares so as to guarantee affordability of the service. Indeed, according to the NCA, the Ministry of Infrastructure and Transport had confirmed that, although the new Convention did lay down specific (maximum) fares throughout the year, including June — September, as well as special rates for Sardinian residents, the operation of the routes during this period fell outside of the scope of the new Convention, and therefore no PSOs applied. Thus CIN operates the Genova — Porto Torres and Civitavecchia — Olbia routes on commercial terms from 1 June – 30 September. |
| --- | --- |

(198)

RAS defends that the operation in the summer season of certain routes under the new Convention, including the two routes subject to the assessment, is not subject to PSOs on fares so as to guarantee affordability of the service. Indeed, according to the NCA, the Ministry of Infrastructure and Transport had confirmed that, although the new Convention did lay down specific (maximum) fares throughout the year, including June — September, as well as special rates for Sardinian residents, the operation of the routes during this period fell outside of the scope of the new Convention, and therefore no PSOs applied. Thus CIN operates the Genova — Porto Torres and Civitavecchia — Olbia routes on commercial terms from 1 June – 30 September.

| (199) | On top of what already underlined above in recitals 193-194, the Commission notes that in June 2012 the NCA authorised the Tirrenia/CIN merger by means of a conditional decision. The Decision imposed specific conditions on the parties, inter alia, concerning the fares to be charged on the routes in question. In particular, in the summer 2012 season, CIN and Moby would maintain on the Civitavecchia — Olbia, Genova — Porto Torres and Genova — Olbia routes a level of fares such as to maintain the average unit revenue obtained by Moby in summer 2009 (except an increase directly attributable to the increase in bunker costs). In summer 2013, CIN and Moby would maintain the 2012 average unit revenue. In addition, special discounted rates would apply in the 2012 and 2013 summer seasons to residents. |
| --- | --- |

(199)

On top of what already underlined above in recitals 193-194, the Commission notes that in June 2012 the NCA authorised the Tirrenia/CIN merger by means of a conditional decision. The Decision imposed specific conditions on the parties, inter alia, concerning the fares to be charged on the routes in question. In particular, in the summer 2012 season, CIN and Moby would maintain on the Civitavecchia — Olbia, Genova — Porto Torres and Genova — Olbia routes a level of fares such as to maintain the average unit revenue obtained by Moby in summer 2009 (except an increase directly attributable to the increase in bunker costs). In summer 2013, CIN and Moby would maintain the 2012 average unit revenue. In addition, special discounted rates would apply in the 2012 and 2013 summer seasons to residents.

| (200) | Therefore, the NCA Decision on the merger ensures that Tirrenia/CIN will not apply excessive fares on the two routes in question. It is true that when RAS entrusted Saremar with the operation of the two routes by means of Decision 36/6/EC of 1 September 2011, it could not know the possible conditions that the NCA would have imposed. However, the fact remains that in September 2011 Tirrenia was still obliged to provide year round mixed services on the routes under the prolongation of the old Convention, and a plurality of operators were present on the routes in the summer season. By the same token, the Italian authorities had already decided that there was no need to impose fare obligations on Tirrenia, given the market conditions in the summer season. |
| --- | --- |

(200)

Therefore, the NCA Decision on the merger ensures that Tirrenia/CIN will not apply excessive fares on the two routes in question. It is true that when RAS entrusted Saremar with the operation of the two routes by means of Decision 36/6/EC of 1 September 2011, it could not know the possible conditions that the NCA would have imposed. However, the fact remains that in September 2011 Tirrenia was still obliged to provide year round mixed services on the routes under the prolongation of the old Convention, and a plurality of operators were present on the routes in the summer season. By the same token, the Italian authorities had already decided that there was no need to impose fare obligations on Tirrenia, given the market conditions in the summer season.

| (201) | On 18 June 2013 the NCA opened an investigation into non-observance in summer 2012 by Tirrenia and Moby of the relevant conditions imposed by the NCA Decision on the Tirrenia/CIN merger. RAS and Saremar have claimed that this would suffice to prove that the fares charged by competitors on the routes in question were not such as to satisfy the affordability requirement imposed by RAS. The Commission cannot accept this argument. The operation of the two routes in the summer 2012 season was entrusted to Saremar by means of Decision 36/6/EC of 1 September 2011, which pre-dates the start of booking for the 2012 summer season. RAS could not have therefore forecasted that the parties would increase fares possibly in violation of the NCA Decision at the moment of entrustment. |
| --- | --- |

(201)

On 18 June 2013 the NCA opened an investigation into non-observance in summer 2012 by Tirrenia and Moby of the relevant conditions imposed by the NCA Decision on the Tirrenia/CIN merger. RAS and Saremar have claimed that this would suffice to prove that the fares charged by competitors on the routes in question were not such as to satisfy the affordability requirement imposed by RAS. The Commission cannot accept this argument. The operation of the two routes in the summer 2012 season was entrusted to Saremar by means of Decision 36/6/EC of 1 September 2011, which pre-dates the start of booking for the 2012 summer season. RAS could not have therefore forecasted that the parties would increase fares possibly in violation of the NCA Decision at the moment of entrustment.

| (202) | In addition, the Commission considers that even if RAS's argument that CIN was under no obligation to maintain affordable fares in the summer season were to be accepted, this would mean that PSOs on affordable fares would be justified in the summer season, rather than during January — May 2012. This argument would not therefore justify the imposition of PSOs in the winter season. |
| --- | --- |

(202)

In addition, the Commission considers that even if RAS's argument that CIN was under no obligation to maintain affordable fares in the summer season were to be accepted, this would mean that PSOs on affordable fares would be justified in the summer season, rather than during January — May 2012. This argument would not therefore justify the imposition of PSOs in the winter season.

| (203) | Moreover, a comparison between Tirrenia and Saremar's (passenger) prices on the two routes shows that fares on the Olbia — Civitavecchia route in the summer season were comparable. On the Vado Ligure — Porto Torres route, Saremar's fares were lower than those of Tirrenia.

  Table 4


  Passenger fares (deck passage) on the Golfo Aranci (Olbia) – Civitavecchia route | Saremar | Tirrenia/CIN |
| --- | --- | --- | --- |
| 2011 summer season | — | EUR 21 from 15 June to 15 July and 1-15 September; |

(203)

Moreover, a comparison between Tirrenia and Saremar's (passenger) prices on the two routes shows that fares on the Olbia — Civitavecchia route in the summer season were comparable. On the Vado Ligure — Porto Torres route, Saremar's fares were lower than those of Tirrenia.

Table 4

Table 4

Passenger fares (deck passage) on the Golfo Aranci (Olbia) – Civitavecchia route

Passenger fares (deck passage) on the Golfo Aranci (Olbia) – Civitavecchia route

Saremar

Tirrenia/CIN

2011 summer season

—

EUR 21 from 15 June to 15 July and 1-15 September;

| — | EUR 35 from 16 July 2011 to 31 August 2011. |
| --- | --- |

—

EUR 35 from 16 July 2011 to 31 August 2011.

EUR 21,68 (EUR 21,46) for residents).

2012 summer season

| — | EUR 21, in June and July weekdays and 3-15 September; |
| --- | --- |

—

EUR 21, in June and July weekdays and 3-15 September;

| — | EUR 25, in June and July weekends and 30, 31 July and 1, 2 September |
| --- | --- |

—

EUR 25, in June and July weekends and 30, 31 July and 1, 2 September

| — | EUR 35 in August. |
| --- | --- |

—

EUR 35 in August.

EUR 21,68 (EUR 21,46).

Table 5

Table 5

Passenger fares (deck passage) on the Genova (Vado Ligure) – Porto Torres

Passenger fares (deck passage) on the Genova (Vado Ligure) – Porto Torres

| | Saremar | Tirrenia/CIN |
| --- | --- | --- |
| 2011 summer season | — | EUR 35 (EUR 29,75) from 22 May to 15 July and 1-15 September; |

Saremar

Tirrenia/CIN

2011 summer season

—

EUR 35 (EUR 29,75) from 22 May to 15 July and 1-15 September;

| — | EUR 40 (EUR 36) from 16 July 2011 to 31 August 2011 |
| --- | --- |

—

EUR 40 (EUR 36) from 16 July 2011 to 31 August 2011

EUR 53,63 (EUR 37,18)

2012 summer season

| — | EUR 35 (EUR 30) 1 - 14 June and 3-15 September; |
| --- | --- |

—

EUR 35 (EUR 30) 1 - 14 June and 3-15 September;

| — | EUR 38 (EUR 33) from 15 June to 13 July; |
| --- | --- |

—

EUR 38 (EUR 33) from 15 June to 13 July;

| — | EUR 44 (EUR 38) from 14 July to 2 September |
| --- | --- |

—

EUR 44 (EUR 38) from 14 July to 2 September

EUR 53,63 (EUR 37,18)

| (204) | Therefore, the Commission considers that the Italian authorities did not demonstrate the existence of a genuine public service need as regards the imposition upon Saremar of an obligation to apply affordable fares in the summer season of 2011 and 2012. In any case, the fares applied by Saremar on the Olbia — Civitavecchia route were comparable and at times higher to those already offered by Tirrenia and Tirrenia/CIN in the absence of public service requirements relating to fares level. |
| --- | --- |

(204)

Therefore, the Commission considers that the Italian authorities did not demonstrate the existence of a genuine public service need as regards the imposition upon Saremar of an obligation to apply affordable fares in the summer season of 2011 and 2012. In any case, the fares applied by Saremar on the Olbia — Civitavecchia route were comparable and at times higher to those already offered by Tirrenia and Tirrenia/CIN in the absence of public service requirements relating to fares level.

Winter season

Winter season

| (205) | In 2011 the service on Olbia — Civitavecchia route was discontinued by Saremar from October to December 2011. The service was then resumed in winter 2012, from 16 January 2012 to 31 May 2012. At the same time Tirrenia was operating this route under the PSOs imposed by the initial Convention, which notably also concerned the fares that Tirrenia had to offer. No clear justification has been put forward by RAS to justify the necessity of public service obligations relating to the fares to be applied on the route in question by Saremar in the winter season. |
| --- | --- |

(205)

In 2011 the service on Olbia — Civitavecchia route was discontinued by Saremar from October to December 2011. The service was then resumed in winter 2012, from 16 January 2012 to 31 May 2012. At the same time Tirrenia was operating this route under the PSOs imposed by the initial Convention, which notably also concerned the fares that Tirrenia had to offer. No clear justification has been put forward by RAS to justify the necessity of public service obligations relating to the fares to be applied on the route in question by Saremar in the winter season.

| (206) | Moreover, a comparison between Saremar's fares and those offered by Tirrenia shows that Saremar's fares were not lower. Therefore, the fares obligations imposed on Saremar cannot be considered as having been catered to the satisfaction of public service needs that were not met by the obligations already imposed on Tirrenia.

  Table 6


  Passenger fares (deck passage) on the Golfo Aranci (Olbia) – Civitavecchia route | Saremar | Tirrenia/CIN |
| --- | --- | --- | --- |
| 2012 winter season | EUR 21. | — | EUR 19,79 (EUR 18,16) low season; |

(206)

Moreover, a comparison between Saremar's fares and those offered by Tirrenia shows that Saremar's fares were not lower. Therefore, the fares obligations imposed on Saremar cannot be considered as having been catered to the satisfaction of public service needs that were not met by the obligations already imposed on Tirrenia.

Table 6

Table 6

Passenger fares (deck passage) on the Golfo Aranci (Olbia) – Civitavecchia route

Passenger fares (deck passage) on the Golfo Aranci (Olbia) – Civitavecchia route

Saremar

Tirrenia/CIN

2012 winter season

EUR 21.

—

EUR 19,79 (EUR 18,16) low season;

| — | EUR 20,61 (EUR 19,98) medium season (44); |
| --- | --- |

—

EUR 20,61 (EUR 19,98) medium season (44);

44

| — | EUR 21,68 (EUR 21,46) high season (45). |
| --- | --- |

—

EUR 21,68 (EUR 21,46) high season (45).

45

Freight transport

Freight transport

| (207) | As regards fares for freight transport, the Commission notes that Tirrenia and Tirrenia/CIN were entrusted with an obligation to provide mixed services on the two routes in question. Moreover, in 2011 five operators (including Saremar) were offering freight transport services on the Olbia — Civitavecchia route and three on the Vado Ligure — Porto Torres route. |
| --- | --- |

(207)

As regards fares for freight transport, the Commission notes that Tirrenia and Tirrenia/CIN were entrusted with an obligation to provide mixed services on the two routes in question. Moreover, in 2011 five operators (including Saremar) were offering freight transport services on the Olbia — Civitavecchia route and three on the Vado Ligure — Porto Torres route.

| (208) | RAS provided neither any explanation as to why the fares for freight transport offered by Tirrenia and other operators on the routes in question were inadequate to satisfy the transport needs of Sardinia, nor did it give the Commission any comparative information on freight fares applied by Saremar and its competitors on the routes in question. Moreover, the increase in prices charged by private operators on the routes in question as sanctioned by the NCA only refers to 2011 and is limited to passenger fares. As a consequence, the Commission considers that the Italian authorities did not demonstrate the existence of a real public service need relating to the imposition of public service obligations on Saremar as regards freight transport. |
| --- | --- |

(208)

RAS provided neither any explanation as to why the fares for freight transport offered by Tirrenia and other operators on the routes in question were inadequate to satisfy the transport needs of Sardinia, nor did it give the Commission any comparative information on freight fares applied by Saremar and its competitors on the routes in question. Moreover, the increase in prices charged by private operators on the routes in question as sanctioned by the NCA only refers to 2011 and is limited to passenger fares. As a consequence, the Commission considers that the Italian authorities did not demonstrate the existence of a real public service need relating to the imposition of public service obligations on Saremar as regards freight transport.

| (209) | Finally, the Commission notes that Tirrenia/CIN operates the routes in question by vessels of comparable quality and capacity as those of Saremar. Nor has RAS or Saremar in the course of the investigation claimed that Tirrenia's vessels would not meet pre-defined quality standards. |
| --- | --- |

(209)

Finally, the Commission notes that Tirrenia/CIN operates the routes in question by vessels of comparable quality and capacity as those of Saremar. Nor has RAS or Saremar in the course of the investigation claimed that Tirrenia's vessels would not meet pre-defined quality standards.

| (210) | In the light of the above, the Commission concludes that RAS did not demonstrate clearly the need to impose public service obligations relating to the application of affordable fares on the two routes in question and to what extent those obligations were required. |
| --- | --- |

(210)

In the light of the above, the Commission concludes that RAS did not demonstrate clearly the need to impose public service obligations relating to the application of affordable fares on the two routes in question and to what extent those obligations were required.

| (211) | Second, in order for the first Altmark condition to be met, the service provider must be entrusted with clearly defined PSOs. |
| --- | --- |

(211)

Second, in order for the first Altmark condition to be met, the service provider must be entrusted with clearly defined PSOs.

| (212) | As concerns the definition of the public mission in the entrustment acts in the present case, the Commission notes the following:






  (a) | Decision 20/57/EC instructed Saremar to verify the viability of providing mixed passenger and freight services on two of three proposed links to the mainland. The precise routes to be operated were not chosen by RAS but rather left at the discretion of the operator. Although RAS claims that the imposition of PSOs in this case was justified by the increase in fares of competing operators, no specific obligation to charge reduced fares on the routes to be operated was imposed on Saremar; |
| --- | --- | --- |

(212)

As concerns the definition of the public mission in the entrustment acts in the present case, the Commission notes the following:

(a)

Decision 20/57/EC instructed Saremar to verify the viability of providing mixed passenger and freight services on two of three proposed links to the mainland. The precise routes to be operated were not chosen by RAS but rather left at the discretion of the operator. Although RAS claims that the imposition of PSOs in this case was justified by the increase in fares of competing operators, no specific obligation to charge reduced fares on the routes to be operated was imposed on Saremar;

| (b) | as concerns the Golfo Aranci – Civitavecchia route, specific fares have been approved by Decision 25/69/EC for the period 15 June 2011 to 15 September 2011. The standard fare for the winter season (16 January 2012 to 15 June 2012) was laid down by Decision 48/65/EC. By Decision 12/28/EC concerning operation of the route in the 2012 summer season, RAS merely took act of Saremar's proposal on the application of different fares in the low, week-end and high season and of the three alternatives proposed by Saremar as concerns the fare applicable in the high season, without however specifying the precise fares which had been proposed by the operator. Nor did RAS decide on one of the three alternative fares proposed by Saremar for the high season. Rather, RAS instructed Saremar to implement the fare which best balances the public interest with the economic viability objective; |
| --- | --- |

(b)

as concerns the Golfo Aranci – Civitavecchia route, specific fares have been approved by Decision 25/69/EC for the period 15 June 2011 to 15 September 2011. The standard fare for the winter season (16 January 2012 to 15 June 2012) was laid down by Decision 48/65/EC. By Decision 12/28/EC concerning operation of the route in the 2012 summer season, RAS merely took act of Saremar's proposal on the application of different fares in the low, week-end and high season and of the three alternatives proposed by Saremar as concerns the fare applicable in the high season, without however specifying the precise fares which had been proposed by the operator. Nor did RAS decide on one of the three alternative fares proposed by Saremar for the high season. Rather, RAS instructed Saremar to implement the fare which best balances the public interest with the economic viability objective;

| (c) | fares applicable on the Genova (Vado Ligure) – Porto Torres route in 2011 were set by Decision 27/4/EC. As concerns the operation of the route in the 2012 summer season, by Decision 22/14/EC RAS accepted Saremar's proposal on the application of different fares in the low, medium and high season. A 15 % discount would apply to Sardinian residents. That Decision does not specify the precise level of fares to be charged by Saremar. |
| --- | --- |

(c)

fares applicable on the Genova (Vado Ligure) – Porto Torres route in 2011 were set by Decision 27/4/EC. As concerns the operation of the route in the 2012 summer season, by Decision 22/14/EC RAS accepted Saremar's proposal on the application of different fares in the low, medium and high season. A 15 % discount would apply to Sardinian residents. That Decision does not specify the precise level of fares to be charged by Saremar.

| (213) | The Commission therefore notes that even if some of the entrustment acts regulate the fares to be charged to a certain extent, it is clear that these provisions relate to only a fraction of Saremar's activity. Applicable fares have indeed been pre-approved on both routes for the 2011 summer season. As concerns operation of the two routes in the 2012 summer season, the entrustment acts do not specify the precise fares to be charged by the operator. Late in the investigation procedure, RAS has submitted to the Commission the actual fares which had been proposed by Saremar and implicitly approved by Decision 25/69/EC and Decision 27/4/EC. |
| --- | --- |

(213)

The Commission therefore notes that even if some of the entrustment acts regulate the fares to be charged to a certain extent, it is clear that these provisions relate to only a fraction of Saremar's activity. Applicable fares have indeed been pre-approved on both routes for the 2011 summer season. As concerns operation of the two routes in the 2012 summer season, the entrustment acts do not specify the precise fares to be charged by the operator. Late in the investigation procedure, RAS has submitted to the Commission the actual fares which had been proposed by Saremar and implicitly approved by Decision 25/69/EC and Decision 27/4/EC.

| (214) | Nonetheless, the Commission notes that a large discretion has been left to Saremar to adapt fares. Saremar retained the faculty to adjust fares so as to ensure economic viability of the activity and customer satisfaction, subject to prior notice to RAS. The Commission notes that SGEIs are by nature services which address market failures as the market does not autonomously provide them to the standard required by the public authority. Whilst the Commission considers that some flexibility with regard to prices may be left in some cases to public service providers, when the alleged public service obligation relates precisely to the necessity to offer affordable fares, the public authorities must define the maximum fares that the operator can apply or link that flexibility either to objective criteria, which allow to determine with a reasonable degree of certainty what fare level is to be considered as affordable, or to a prior authorisation procedure by the entrusting authority. |
| --- | --- |

(214)

Nonetheless, the Commission notes that a large discretion has been left to Saremar to adapt fares. Saremar retained the faculty to adjust fares so as to ensure economic viability of the activity and customer satisfaction, subject to prior notice to RAS. The Commission notes that SGEIs are by nature services which address market failures as the market does not autonomously provide them to the standard required by the public authority. Whilst the Commission considers that some flexibility with regard to prices may be left in some cases to public service providers, when the alleged public service obligation relates precisely to the necessity to offer affordable fares, the public authorities must define the maximum fares that the operator can apply or link that flexibility either to objective criteria, which allow to determine with a reasonable degree of certainty what fare level is to be considered as affordable, or to a prior authorisation procedure by the entrusting authority.

| (215) | In the present case, however, the provisions concerning applicable fares in the entrustment acts are not sufficiently precise so as to qualify as clearly defined PSOs (with the exception of Decision 25/69/EC and Decision 27/4/EC). Saremar's margin of manoeuvre was not linked to objective criteria or at least to criteria that were applied in an objective way. The requirement to exploit the routes on economic balance was manifestly not met and customer satisfaction was not measured (to the knowledge of the Commission). Likewise, it is true that Saremar had to inform RAS of changes in the level of fares, but there is no indication that RAS's agreement was a condition for the application of the amended fare. |
| --- | --- |

(215)

In the present case, however, the provisions concerning applicable fares in the entrustment acts are not sufficiently precise so as to qualify as clearly defined PSOs (with the exception of Decision 25/69/EC and Decision 27/4/EC). Saremar's margin of manoeuvre was not linked to objective criteria or at least to criteria that were applied in an objective way. The requirement to exploit the routes on economic balance was manifestly not met and customer satisfaction was not measured (to the knowledge of the Commission). Likewise, it is true that Saremar had to inform RAS of changes in the level of fares, but there is no indication that RAS's agreement was a condition for the application of the amended fare.

| (216) | Saremar has claimed in the course of the civil proceedings before the Genoa Court that, in order to offset losses on the two routes, the company would have had to increase fares. However, there is no evidence in the case file that, in trying to keep with the viability objective, the company has at any time proposed an increase in fares which was rejected by RAS. On the contrary, documents in the case file show that Saremar had indeed, at least as concerns the operation of the Porto Torres – Vado Ligure route, increased fares to ensure that the company could break even. It would therefore rather appear that the company could freely set its fares. |
| --- | --- |

(216)

Saremar has claimed in the course of the civil proceedings before the Genoa Court that, in order to offset losses on the two routes, the company would have had to increase fares. However, there is no evidence in the case file that, in trying to keep with the viability objective, the company has at any time proposed an increase in fares which was rejected by RAS. On the contrary, documents in the case file show that Saremar had indeed, at least as concerns the operation of the Porto Torres – Vado Ligure route, increased fares to ensure that the company could break even. It would therefore rather appear that the company could freely set its fares.

| (217) | Finally, it results from the analysis of the entrustment acts that no obligation on fares has been imposed on Saremar for the operation of the Olbia – Civitavecchia route from 1 May to 30 May 2012: the rate approved by Decision 48/65/EC was applied until end April 2012, whereas the rate approved by Decision 12/28/EC applied as of June 2012. Given that the operation of the route was not discontinued, it results that Saremar's prices were not subject to regulation at least during May 2012. |
| --- | --- |

(217)

Finally, it results from the analysis of the entrustment acts that no obligation on fares has been imposed on Saremar for the operation of the Olbia – Civitavecchia route from 1 May to 30 May 2012: the rate approved by Decision 48/65/EC was applied until end April 2012, whereas the rate approved by Decision 12/28/EC applied as of June 2012. Given that the operation of the route was not discontinued, it results that Saremar's prices were not subject to regulation at least during May 2012.

| (218) | In view of the above, the Commission considers that Saremar was not entrusted with clear obligations as regards fare level, with the exception of the service offered in 2011 pursuant to Decision 25/69/EC and Decision 27/4/EC. |
| --- | --- |

(218)

In view of the above, the Commission considers that Saremar was not entrusted with clear obligations as regards fare level, with the exception of the service offered in 2011 pursuant to Decision 25/69/EC and Decision 27/4/EC.

| (219) | Consequently, the Commission considers that the Italian authorities have not demonstrated that the compensation meets the first Altmark condition. |
| --- | --- |

(219)

Consequently, the Commission considers that the Italian authorities have not demonstrated that the compensation meets the first Altmark condition.

Altmark 3

Altmark 3

| (220) | In accordance with the third Altmark condition, the compensation received for the discharge of PSOs cannot exceed what is necessary to cover all or part of the costs incurred in the discharge of those obligations, taking into account the relevant receipts and a reasonable profit for their discharge. |
| --- | --- |

(220)

In accordance with the third Altmark condition, the compensation received for the discharge of PSOs cannot exceed what is necessary to cover all or part of the costs incurred in the discharge of those obligations, taking into account the relevant receipts and a reasonable profit for their discharge.

| (221) | Inasmuch as the Commission already concluded that RAS did not demonstrate the existence of a real public service need on the two routes in question over the relevant period, the Commission considers that Saremar was not entitled to receive any compensation under the Altmark jurisprudence for the costs incurred in the operation of the two routes. |
| --- | --- |

(221)

Inasmuch as the Commission already concluded that RAS did not demonstrate the existence of a real public service need on the two routes in question over the relevant period, the Commission considers that Saremar was not entitled to receive any compensation under the Altmark jurisprudence for the costs incurred in the operation of the two routes.

| (222) | RAS has argued however, that the compensation is lower than the loss incurred by Saremar in serving these two routes in 2011 and 2012 and that since it has been calculated according to the separate accounts for those routes, it cannot benefit any other activity of Saremar. It should therefore be considered as complying with the third Altmark condition. However, the Commission notes that in the absence of a clear definition of the obligations imposed on Saremar over the whole period of entrustment, it is impossible to calculate the costs ensuing from those obligations. |
| --- | --- |

(222)

RAS has argued however, that the compensation is lower than the loss incurred by Saremar in serving these two routes in 2011 and 2012 and that since it has been calculated according to the separate accounts for those routes, it cannot benefit any other activity of Saremar. It should therefore be considered as complying with the third Altmark condition. However, the Commission notes that in the absence of a clear definition of the obligations imposed on Saremar over the whole period of entrustment, it is impossible to calculate the costs ensuing from those obligations.

| (223) | Therefore, the Commission must conclude that the third Altmark condition is not met either. |
| --- | --- |

(223)

Therefore, the Commission must conclude that the third Altmark condition is not met either.

| (224) | Given that the first three Altmark conditions have not been met, the Commission concludes that the compensation granted to Saremar by Regional Law 15/2012 provides an economic advantage to Saremar. |
| --- | --- |

(224)

Given that the first three Altmark conditions have not been met, the Commission concludes that the compensation granted to Saremar by Regional Law 15/2012 provides an economic advantage to Saremar.

Conclusion

Conclusion

| (225) | The compensation granted to Saremar by virtue of Regional Law 15/2012 provides the beneficiary with an economic advantage. |
| --- | --- |

(225)

The compensation granted to Saremar by virtue of Regional Law 15/2012 provides the beneficiary with an economic advantage.

Promotional activities

Promotional activities

| (226) | As concerns the promotional activities, the Commission first notes that the logos and advertising effectively carried on Saremar vessels did not refer to the reduction in prices of maritime transport services but were intended at promoting Sardinia as tourist destination. Therefore, the question that arises is whether Saremar received a remuneration for those promotional activities which was above market price. |
| --- | --- |

(226)

As concerns the promotional activities, the Commission first notes that the logos and advertising effectively carried on Saremar vessels did not refer to the reduction in prices of maritime transport services but were intended at promoting Sardinia as tourist destination. Therefore, the question that arises is whether Saremar received a remuneration for those promotional activities which was above market price.

| (227) | RAS has argued that promotional activities carried out by Saremar have been priced at market rates. The Commission should presumably take into account the fact that these activities have been carried out by Saremar both in 2011 and 2012. As mentioned above, a study concluded by an expert appointed by RAS was submitted to the Commission in August 2013. The study concluded that the market value of the promotional activities carried out by Saremar in 2011 and 2012 would range between EUR 2 458 168 and EUR 2 609 631. Hence the EUR 2 479 000 price set by RAS would be justified. |
| --- | --- |

(227)

RAS has argued that promotional activities carried out by Saremar have been priced at market rates. The Commission should presumably take into account the fact that these activities have been carried out by Saremar both in 2011 and 2012. As mentioned above, a study concluded by an expert appointed by RAS was submitted to the Commission in August 2013. The study concluded that the market value of the promotional activities carried out by Saremar in 2011 and 2012 would range between EUR 2 458 168 and EUR 2 609 631. Hence the EUR 2 479 000 price set by RAS would be justified.

| (228) | In the present case, there was neither an open and unconditional bidding procedure nor an ex-ante independent expert valuation prepared for the purposes of awarding the services in order to ensure that the price adequately reflects the market value of the services. Since the activities in question were not tendered out, it cannot be assumed that the price paid by RAS is in line with market conditions, thus ruling out the possibility that it conferred an advantage on Saremar. The mere fact that the amount was originally granted as compensation for promotional activities to be carried out exclusively in 2011, and that no advertising was supposed to be carried out by Saremar in 2012, suggests that the price was not based on a reliable ex-ante valuation of costs. |
| --- | --- |

(228)

In the present case, there was neither an open and unconditional bidding procedure nor an ex-ante independent expert valuation prepared for the purposes of awarding the services in order to ensure that the price adequately reflects the market value of the services. Since the activities in question were not tendered out, it cannot be assumed that the price paid by RAS is in line with market conditions, thus ruling out the possibility that it conferred an advantage on Saremar. The mere fact that the amount was originally granted as compensation for promotional activities to be carried out exclusively in 2011, and that no advertising was supposed to be carried out by Saremar in 2012, suggests that the price was not based on a reliable ex-ante valuation of costs.

ex-ante

ex-ante

| (229) | Nonetheless, it cannot be ruled out that other valuation methods may be applied in such instances, so long as it is ensured that the price actually paid by the purchaser on the basis of those methods reflects, as far as possible, the market value of the service (46). |
| --- | --- |

(229)

Nonetheless, it cannot be ruled out that other valuation methods may be applied in such instances, so long as it is ensured that the price actually paid by the purchaser on the basis of those methods reflects, as far as possible, the market value of the service (46).

46

| (230) | RAS has indeed produced a valuation report showing that the services have been priced at market value. The expert derived the market value of the services provided by Saremar to RAS based on a benchmark with average advertising costs per square meter estimated on the basis of parameters such as duration (certain discounts for the continuation of the advertising campaign in 2012 were taken into account), type of the advertising (internal or external) and location (main cities, important influx of population, mobility areas). |
| --- | --- |

(230)

RAS has indeed produced a valuation report showing that the services have been priced at market value. The expert derived the market value of the services provided by Saremar to RAS based on a benchmark with average advertising costs per square meter estimated on the basis of parameters such as duration (certain discounts for the continuation of the advertising campaign in 2012 were taken into account), type of the advertising (internal or external) and location (main cities, important influx of population, mobility areas).

| (231) | Given that the valuation was carried out on the basis of generally accepted valuation standards, which in this case consist of an analysis of transactions involving similar services, the Commission considers that the valuation adequately reflects the market value of the services in question. |
| --- | --- |

(231)

Given that the valuation was carried out on the basis of generally accepted valuation standards, which in this case consist of an analysis of transactions involving similar services, the Commission considers that the valuation adequately reflects the market value of the services in question.

| (232) | The Commission considers that it cannot rely on the report of the expert commissioned by the Court of Genoa in the context of civil proceedings concluding that the pricing of the promotional activities was excessive: no benchmark is considered and no market value is put forward for comparable advertising activities in that report. Moreover, there is no indication that the expert in question has any relevant experience in carrying out similar tasks. |
| --- | --- |

(232)

The Commission considers that it cannot rely on the report of the expert commissioned by the Court of Genoa in the context of civil proceedings concluding that the pricing of the promotional activities was excessive: no benchmark is considered and no market value is put forward for comparable advertising activities in that report. Moreover, there is no indication that the expert in question has any relevant experience in carrying out similar tasks.

| (233) | On this basis, the Commission cannot conclude that the price paid by RAS for the promotional services contains State aid. |
| --- | --- |

(233)

On this basis, the Commission cannot conclude that the price paid by RAS for the promotional services contains State aid.

EUR 3 million loan and the letters of comfort

EUR 3 million loan and the letters of comfort

| (234) | The Commission concluded in recital 164 above that no transfer of State resources has occurred. In particular, the EUR 3 million credit line initially considered was not drawn by Saremar before the first comfort expired and the second letter of comfort authorised by Decision 52/119/EC in the end was not issued by RAS. |
| --- | --- |

(234)

The Commission concluded in recital 164 above that no transfer of State resources has occurred. In particular, the EUR 3 million credit line initially considered was not drawn by Saremar before the first comfort expired and the second letter of comfort authorised by Decision 52/119/EC in the end was not issued by RAS.

The recapitalisation

The recapitalisation

| (235) | RAS has argued that (i) the measure did not involve a transfer of new public resources since it merely implied a transfer of funds already at Saremar's disposal, (ii) the measure was justified by profitability perspectives and based on a business plan prepared ex-ante, and (iii) the measure aimed to maximise the proceeds of the sale and was due to the financial situation of former parent company Tirrenia. RAS claimed that the measure was in no way linked to the operation by Saremar of the two routes to the mainland, but rather to the provision of SGEIs under the initial Convention with the Italian State, as prolonged. |
| --- | --- |

(235)

RAS has argued that (i) the measure did not involve a transfer of new public resources since it merely implied a transfer of funds already at Saremar's disposal, (ii) the measure was justified by profitability perspectives and based on a business plan prepared ex-ante, and (iii) the measure aimed to maximise the proceeds of the sale and was due to the financial situation of former parent company Tirrenia. RAS claimed that the measure was in no way linked to the operation by Saremar of the two routes to the mainland, but rather to the provision of SGEIs under the initial Convention with the Italian State, as prolonged.

ex-ante

| (236) | In order to assess whether the recapitalisation entailed an advantage to Saremar, the Commission must assess whether in similar circumstances, a private investor in a market economy would have made capital contributions of the same size (47), having regard in particular to the information available and foreseeable developments at the date of those contributions (48). The MEIP should be applied ex-ante, i.e. one should determine whether at the time of the investment a private investor in a market economy would have prevailed upon making such capital contribution. A market investor would duly take into account the risks associated with the investment — so as to require higher profitability from more risky investments. If, for instance, specific regulatory requirements, such as on minimum capital or liquidity, make the investment unprofitable, a market economy investor would not proceed with the investments. |
| --- | --- |

(236)

In order to assess whether the recapitalisation entailed an advantage to Saremar, the Commission must assess whether in similar circumstances, a private investor in a market economy would have made capital contributions of the same size (47), having regard in particular to the information available and foreseeable developments at the date of those contributions (48). The MEIP should be applied ex-ante, i.e. one should determine whether at the time of the investment a private investor in a market economy would have prevailed upon making such capital contribution. A market investor would duly take into account the risks associated with the investment — so as to require higher profitability from more risky investments. If, for instance, specific regulatory requirements, such as on minimum capital or liquidity, make the investment unprofitable, a market economy investor would not proceed with the investments.

47

48

ex-ante

| (237) | The recapitalisation of Saremar was finally decided on 15 June 2012 when the Shareholders' Assembly decided to increase Saremar capital from EUR 1 209 010,64 to EUR 6 099 961 of which EUR 824 309,69 paid in on 11 July 2012. |
| --- | --- |

(237)

The recapitalisation of Saremar was finally decided on 15 June 2012 when the Shareholders' Assembly decided to increase Saremar capital from EUR 1 209 010,64 to EUR 6 099 961 of which EUR 824 309,69 paid in on 11 July 2012.

| (238) | Given that the company appeared to be in a precarious financial position, it was the Commission's preliminary view in the 2012 Decision that a market economy investor would have required the implementation of a plan to restore the firm's viability, so that the company could provide a sufficient return for its shareholders. This view was supported by the interested parties in the course of the investigation. |
| --- | --- |

(238)

Given that the company appeared to be in a precarious financial position, it was the Commission's preliminary view in the 2012 Decision that a market economy investor would have required the implementation of a plan to restore the firm's viability, so that the company could provide a sufficient return for its shareholders. This view was supported by the interested parties in the course of the investigation.

| (239) | RAS provided to the Commission Saremar's business plan for 2011-2022, approved in July 2010. The business plan has a key significance in this sense because a private investor will inject fresh capital in a company whose capital has dropped below the legal limit only if he expects a sufficient profitability level. The Commission considers that Saremar's business plan for 2011-2022 is not based on realistic assumptions since (i) it did not refer to the capitalisation of the company by the public shareholder, but rather to a capital injection to be carried out pari passu by a future private shareholder and RAS after completion of the partial privatisation initially foreseen for November 2010; the capital injection laid down by the business plan for 2010 was supposed to provide one third of the required funding to acquire two vessels, whereas the remaining 70 % would have been obtained by the repayment by Tirrenia to Saremar of a EUR 11,5 loan (see recital 89 above) and from various financial institutions; (ii) it covers the 12-year duration of the new public service contract to be signed with the buyer of the company, which was initially sought to be signed end 2010. This plan therefore only concerns measures to be implemented upon partial privatisation of the company. In summary, the business plan provided by RAS predates of about two years the binding decision to recapitalise Saremar. In the meanwhile the market situation had changed significantly: Tirrenia was admitted to the extraordinary administration procedure in August 2010 and declared insolvent by the Court; the former parent company was subsequently acquired by CIN and the latter signed on 18 July 2012 a new Convention laying down PSOs on the routes between Sardinia and mainland Italy; Saremar's privatisation was delayed. The Commission considers a private investor would have updated its business plan to take into account the new market situation before deciding to inject the sums in question. |
| --- | --- |

(239)

RAS provided to the Commission Saremar's business plan for 2011-2022, approved in July 2010. The business plan has a key significance in this sense because a private investor will inject fresh capital in a company whose capital has dropped below the legal limit only if he expects a sufficient profitability level. The Commission considers that Saremar's business plan for 2011-2022 is not based on realistic assumptions since (i) it did not refer to the capitalisation of the company by the public shareholder, but rather to a capital injection to be carried out pari passu by a future private shareholder and RAS after completion of the partial privatisation initially foreseen for November 2010; the capital injection laid down by the business plan for 2010 was supposed to provide one third of the required funding to acquire two vessels, whereas the remaining 70 % would have been obtained by the repayment by Tirrenia to Saremar of a EUR 11,5 loan (see recital 89 above) and from various financial institutions; (ii) it covers the 12-year duration of the new public service contract to be signed with the buyer of the company, which was initially sought to be signed end 2010. This plan therefore only concerns measures to be implemented upon partial privatisation of the company. In summary, the business plan provided by RAS predates of about two years the binding decision to recapitalise Saremar. In the meanwhile the market situation had changed significantly: Tirrenia was admitted to the extraordinary administration procedure in August 2010 and declared insolvent by the Court; the former parent company was subsequently acquired by CIN and the latter signed on 18 July 2012 a new Convention laying down PSOs on the routes between Sardinia and mainland Italy; Saremar's privatisation was delayed. The Commission considers a private investor would have updated its business plan to take into account the new market situation before deciding to inject the sums in question.

pari passu

| (240) | Both RAS and Saremar have confirmed that the capital injection was agreed so as to satisfy regulatory requirements, thus allowing the company to continue to stay in business. The case file contains no document showing that RAS took into consideration the profitability prospects of the company in the changed market situation when it decided to inject capital into Saremar in June 2012. |
| --- | --- |

(240)

Both RAS and Saremar have confirmed that the capital injection was agreed so as to satisfy regulatory requirements, thus allowing the company to continue to stay in business. The case file contains no document showing that RAS took into consideration the profitability prospects of the company in the changed market situation when it decided to inject capital into Saremar in June 2012.

| (241) | The Commission considers that compliance with regulatory capital requirements would not have been a sufficient reason for a private market investor to inject further capital into a company. As provided in the Commission communication on the application of Articles 92 and 93 of the EEC Treaty [now 107 and 108 TFEU] (hereinafter the MEIP Communication) (49), investors are often obliged by law to contribute with additional equity to firms whose capital base has been eroded by continuous losses to below a predetermined level. To answer Member States' claims that these capital injections cannot be considered as aid as they are merely fulfilling a legal obligation, the MEIP Communication provides that private investors faced with such a situation would consider all other options – including the liquidation or run-down (50) – and choose the one which is financially the most advantageous. |
| --- | --- |

(241)

The Commission considers that compliance with regulatory capital requirements would not have been a sufficient reason for a private market investor to inject further capital into a company. As provided in the Commission communication on the application of Articles 92 and 93 of the EEC Treaty [now 107 and 108 TFEU] (hereinafter the MEIP Communication) (49), investors are often obliged by law to contribute with additional equity to firms whose capital base has been eroded by continuous losses to below a predetermined level. To answer Member States' claims that these capital injections cannot be considered as aid as they are merely fulfilling a legal obligation, the MEIP Communication provides that private investors faced with such a situation would consider all other options – including the liquidation or run-down (50) – and choose the one which is financially the most advantageous.

MEIP Communication

49

50

| (242) | For the purpose of assessment of MEIP compliance, the Commission may only take into account information which was available at the time when the decision to make the investment was taken, including developments which were reasonably foreseeable at that time. On account of the information available at the relevant time, the decision to recapitalise the company does not appear to be based on economic evaluations comparable to those which, in the relevant circumstances, a rational private investor in a similar situation would have had carried out, before making the investment, in order to determine its future profitability. Indeed, the Commission notes that, at the time the recapitalisation was decided, the company was facing acute financial difficulties. In addition, as put forward by RAS itself, it was not at that stage certain whether the operation of the routes to minor islands and Corsica would continue to be subsidised by the State. Moreover, no compensation had been at that time set to cover the potential operating deficit for the operation of the routes to the mainland (which was granted only in November 2012). |
| --- | --- |

(242)

For the purpose of assessment of MEIP compliance, the Commission may only take into account information which was available at the time when the decision to make the investment was taken, including developments which were reasonably foreseeable at that time. On account of the information available at the relevant time, the decision to recapitalise the company does not appear to be based on economic evaluations comparable to those which, in the relevant circumstances, a rational private investor in a similar situation would have had carried out, before making the investment, in order to determine its future profitability. Indeed, the Commission notes that, at the time the recapitalisation was decided, the company was facing acute financial difficulties. In addition, as put forward by RAS itself, it was not at that stage certain whether the operation of the routes to minor islands and Corsica would continue to be subsidised by the State. Moreover, no compensation had been at that time set to cover the potential operating deficit for the operation of the routes to the mainland (which was granted only in November 2012).

| (243) | The Commission considers that RAS's argument, according to which several market investors had also injected capital into their companies competing with Saremar, thereby supporting their loss-making operations, is irrelevant to the extent that each investment decision must be assessed on its own merits. Fully fledged profitability projections may have been available to these private investors at the time of their investments. Furthermore, such companies may have been in a better financial situation prior to the recapitalisation, thus making it more likely that a return to profitability could be achieved. |
| --- | --- |

(243)

The Commission considers that RAS's argument, according to which several market investors had also injected capital into their companies competing with Saremar, thereby supporting their loss-making operations, is irrelevant to the extent that each investment decision must be assessed on its own merits. Fully fledged profitability projections may have been available to these private investors at the time of their investments. Furthermore, such companies may have been in a better financial situation prior to the recapitalisation, thus making it more likely that a return to profitability could be achieved.

| (244) | The Commission must likewise reject RAS's claim that the capitalisation of the company was in no way linked to the operation by Saremar of the routes to mainland Italy. As stressed by RAS, the objective of the measure was to allow the company to continue operation by bringing the capital, which had dropped by more than one third, back to legally approved standards. Therefore, the recapitalisation of Saremar benefitted necessarily all the activities offered by that undertaking. |
| --- | --- |

(244)

The Commission must likewise reject RAS's claim that the capitalisation of the company was in no way linked to the operation by Saremar of the routes to mainland Italy. As stressed by RAS, the objective of the measure was to allow the company to continue operation by bringing the capital, which had dropped by more than one third, back to legally approved standards. Therefore, the recapitalisation of Saremar benefitted necessarily all the activities offered by that undertaking.

| (245) | The Commission therefore concludes that the decision to recapitalise the company does not comply with the MEIP and therefore confers on Saremar an advantage that it would not have received under normal market conditions. |
| --- | --- |

(245)

The Commission therefore concludes that the decision to recapitalise the company does not comply with the MEIP and therefore confers on Saremar an advantage that it would not have received under normal market conditions.

Affectation of trade and distortion of competition

Affectation of trade and distortion of competition

| (246) | In order to be qualified as State aid, a financial measure must affect trade between Member States and distort or threaten to distort competition. In its assessment of those two conditions, the Commission is not required to establish that the aid has a real effect on trade between Member States and that competition is actually being distorted, but only to examine whether that aid is liable to affect such trade and distort competition (51). When aid granted by a Member State strengthens the position of an undertaking compared with other undertakings competing in intra-Union trade, the latter must be regarded as affected by that aid. |
| --- | --- |

(246)

In order to be qualified as State aid, a financial measure must affect trade between Member States and distort or threaten to distort competition. In its assessment of those two conditions, the Commission is not required to establish that the aid has a real effect on trade between Member States and that competition is actually being distorted, but only to examine whether that aid is liable to affect such trade and distort competition (51). When aid granted by a Member State strengthens the position of an undertaking compared with other undertakings competing in intra-Union trade, the latter must be regarded as affected by that aid.

51

| (247) | In the present case, the beneficiary operates in competition with other undertakings providing maritime transport services in the Union, in particular since the entry into force of the Maritime Cabotage Regulation, liberalising the market of maritime cabotage. Therefore, the measure under scrutiny is liable to affect Union trade and distort competition within the internal market. The fact that Saremar's share in that market has remained marginal does not affect this finding. |
| --- | --- |

(247)

In the present case, the beneficiary operates in competition with other undertakings providing maritime transport services in the Union, in particular since the entry into force of the Maritime Cabotage Regulation, liberalising the market of maritime cabotage. Therefore, the measure under scrutiny is liable to affect Union trade and distort competition within the internal market. The fact that Saremar's share in that market has remained marginal does not affect this finding.

7.2.   LAWFULNESS OF THE AID

LAWFULNESS OF THE AID

| (248) | All measures subject to this Decision have been put into effect before formal approval by the Commission. Therefore the Italian authorities did not respect the stand-still obligation under Article 108(3) TFEU. |
| --- | --- |

(248)

All measures subject to this Decision have been put into effect before formal approval by the Commission. Therefore the Italian authorities did not respect the stand-still obligation under Article 108(3) TFEU.

7.3.   COMPATIBILITY OF THE AID

COMPATIBILITY OF THE AID

| (249) | Insofar as the measures identified above constitute State aid within the meaning of Article 107(1) TFEU, their compatibility can be assessed in the light of the exceptions laid down in paragraphs 2 and 3 of that Article and Article 106(2) TFEU. |
| --- | --- |

(249)

Insofar as the measures identified above constitute State aid within the meaning of Article 107(1) TFEU, their compatibility can be assessed in the light of the exceptions laid down in paragraphs 2 and 3 of that Article and Article 106(2) TFEU.

| (250) | According to the case-law of the Court of Justice, it is up to the Member State to invoke possible grounds for compatibility and to demonstrate that the conditions for compatibility are met (52). RAS considers that none of the measures under assessment constitutes State aid and has only provided possible grounds for compatibility as concerns the compensation for the operation of the two routes to the mainland and the subsidy paid for the promotional activities. |
| --- | --- |

(250)

According to the case-law of the Court of Justice, it is up to the Member State to invoke possible grounds for compatibility and to demonstrate that the conditions for compatibility are met (52). RAS considers that none of the measures under assessment constitutes State aid and has only provided possible grounds for compatibility as concerns the compensation for the operation of the two routes to the mainland and the subsidy paid for the promotional activities.

52

7.3.1.   COMPENSATION FOR THE OPERATION OF THE TWO ROUTES BETWEEN SARDINIA AND MAINLAND ITALY

| (251) | On 31 January 2012 the new SGEI package entered into force. As of this date, the compatibility of the aid under the form of public service compensation has to be examined in light of the 2011 SGEI Decision and the 2011 SGEI Framework's criteria. |
| --- | --- |

(251)

On 31 January 2012 the new SGEI package entered into force. As of this date, the compatibility of the aid under the form of public service compensation has to be examined in light of the 2011 SGEI Decision and the 2011 SGEI Framework's criteria.

| (252) | As was already the case under the 2005 SGEI Decision, the 2011 SGEI Decision is only applicable to State aid in the form of public service compensation granted to undertakings in connection with a SGEI which complies with the Maritime Cabotage Regulation. In the 2012 Decision, the Commission took the preliminary view that, by directly entrusting the operation of the services to Saremar, the Italian authorities did not observe Article 4(1) of the Maritime Cabotage Regulation on non-discriminatory treatment of ship-owners. |
| --- | --- |

(252)

As was already the case under the 2005 SGEI Decision, the 2011 SGEI Decision is only applicable to State aid in the form of public service compensation granted to undertakings in connection with a SGEI which complies with the Maritime Cabotage Regulation. In the 2012 Decision, the Commission took the preliminary view that, by directly entrusting the operation of the services to Saremar, the Italian authorities did not observe Article 4(1) of the Maritime Cabotage Regulation on non-discriminatory treatment of ship-owners.

| (253) | RAS has claimed during the formal investigation procedure that Saremar qualified as an internal operator of the Region. According to RAS, it can be drawn from the case law (53) that the application of the principle of non-discrimination is precluded, provided that the control exercised over the operator by a public authority is similar to that which the authority exercises over its own departments and the operator carries out the essential part of its activities with the controlling authority. |
| --- | --- |

(253)

RAS has claimed during the formal investigation procedure that Saremar qualified as an internal operator of the Region. According to RAS, it can be drawn from the case law (53) that the application of the principle of non-discrimination is precluded, provided that the control exercised over the operator by a public authority is similar to that which the authority exercises over its own departments and the operator carries out the essential part of its activities with the controlling authority.

53

| (254) | It would appear that indeed Saremar acts on behalf of RAS as an instrument for the implementation of RAS's maritime transport and regional development policies. It is however unclear whether that circumstance can justify the direct and exclusive award of compensation to Saremar. In any event, the Commission does not need to decide on this issue for the purpose of this case, given that the aid measure does not comply with the 2011 SGEI Decision. |
| --- | --- |

(254)

It would appear that indeed Saremar acts on behalf of RAS as an instrument for the implementation of RAS's maritime transport and regional development policies. It is however unclear whether that circumstance can justify the direct and exclusive award of compensation to Saremar. In any event, the Commission does not need to decide on this issue for the purpose of this case, given that the aid measure does not comply with the 2011 SGEI Decision.

Applicability of the 2011 SGEI Decision

Applicability of the 2011 SGEI Decision

| (255) | The 2011 SGEI Decision only applies to aid under the form of public service compensation in connection to genuine SGEI services. On the basis of the grounds developed in recitals 180-218 above, the Commission concludes that RAS has neither demonstrated to the required legal standards the existence of a real public service need justifying the imposition of public service obligations on the routes in question, nor that those obligations were sufficiently precise. Consequently, the subsidy granted to Saremar for the operation of the two routes cannot be considered as compatible aid pursuant to the 2011 SGEI Decision. |
| --- | --- |

(255)

The 2011 SGEI Decision only applies to aid under the form of public service compensation in connection to genuine SGEI services. On the basis of the grounds developed in recitals 180-218 above, the Commission concludes that RAS has neither demonstrated to the required legal standards the existence of a real public service need justifying the imposition of public service obligations on the routes in question, nor that those obligations were sufficiently precise. Consequently, the subsidy granted to Saremar for the operation of the two routes cannot be considered as compatible aid pursuant to the 2011 SGEI Decision.

| (256) | In any event, in order to be deemed compatible and exempted from the notification requirement by virtue of the 2011 SGEI Decision, the operation of a SGEI necessarily has to be entrusted by way of one or more acts, laying down:






  (a) | The content and duration of the PSOs; |
| --- | --- | --- |

(256)

In any event, in order to be deemed compatible and exempted from the notification requirement by virtue of the 2011 SGEI Decision, the operation of a SGEI necessarily has to be entrusted by way of one or more acts, laying down:

(a)

The content and duration of the PSOs;

| (b) | The undertaking and, where applicable, the territory concerned; |
| --- | --- |

(b)

The undertaking and, where applicable, the territory concerned;

| (c) | The nature of any exclusive or special rights assigned to the undertaking; |
| --- | --- |

(c)

The nature of any exclusive or special rights assigned to the undertaking;

| (d) | A description of the compensation mechanism and the parameters for calculating, controlling and reviewing the compensation; |
| --- | --- |

(d)

A description of the compensation mechanism and the parameters for calculating, controlling and reviewing the compensation;

| (e) | The arrangements for avoiding and recovering any overcompensation; |
| --- | --- |

(e)

The arrangements for avoiding and recovering any overcompensation;

| (f) | A reference to the 2011 SGEI Decision. |
| --- | --- |

(f)

A reference to the 2011 SGEI Decision.

| (257) | It is manifest that in this case the entrustment acts do not meet the requirements under letter (d), (e) and (f), above. Therefore, the aid in question cannot be considered as compatible on the basis of the 2011 SGEI Decision. |
| --- | --- |

(257)

It is manifest that in this case the entrustment acts do not meet the requirements under letter (d), (e) and (f), above. Therefore, the aid in question cannot be considered as compatible on the basis of the 2011 SGEI Decision.

| (258) | According to RAS, the measure has been defined in its main elements before the entry into force of the new SGEI package and, therefore, the 2005 SGEI Decision, rather than the 2011 SGEI Decision, would be applicable for the purpose of compatibility assessment. However, in this case the compensation was granted only in August 2012 by Regional Law 15 of 7 August 2012 and therefore does not pre-date the entry into force of the 2011 SGEI Decision. RAS's argument is therefore untenable. |
| --- | --- |

(258)

According to RAS, the measure has been defined in its main elements before the entry into force of the new SGEI package and, therefore, the 2005 SGEI Decision, rather than the 2011 SGEI Decision, would be applicable for the purpose of compatibility assessment. However, in this case the compensation was granted only in August 2012 by Regional Law 15 of 7 August 2012 and therefore does not pre-date the entry into force of the 2011 SGEI Decision. RAS's argument is therefore untenable.

| (259) | In conclusion, aid to Saremar cannot be deemed compatible and exempted from the notification requirement on the basis of the 2011 SGEI Decision. |
| --- | --- |

(259)

In conclusion, aid to Saremar cannot be deemed compatible and exempted from the notification requirement on the basis of the 2011 SGEI Decision.

| (260) | In any event, given the absence of any provision setting a compensation for the operation of the two routes, and of the arrangements for avoiding and recovering any overcompensation, the compensation in question cannot be considered compatible and exempted from the notification requirement on the basis of the 2005 SGEI Decision either. |
| --- | --- |

(260)

In any event, given the absence of any provision setting a compensation for the operation of the two routes, and of the arrangements for avoiding and recovering any overcompensation, the compensation in question cannot be considered compatible and exempted from the notification requirement on the basis of the 2005 SGEI Decision either.

Saremar is an undertaking in difficulty within the meaning of the Rescue and Restructuring Guidelines

Saremar is an undertaking in difficulty within the meaning of the Rescue and Restructuring Guidelines

| (261) | For the reasons set out below, the Commission considers that Saremar can be considered as an undertaking in difficulty within the meaning of the Rescue and Restructuring Guidelines at the time the compensation in question was granted to it. |
| --- | --- |

(261)

For the reasons set out below, the Commission considers that Saremar can be considered as an undertaking in difficulty within the meaning of the Rescue and Restructuring Guidelines at the time the compensation in question was granted to it.

| (262) | According to point 9 of the Rescue and Restructuring Guidelines, a firm is regarded to be in difficulty if it is unable to recover through its own resources or by rising the funds it needs from shareholders or on the market, and if without the intervention of public authorities it will almost certainly go out of business. In particular, according to point 10 of the Rescue and Restructuring Guidelines a firm is regarded to be in difficulty:






  (a) | in the case of a limited liability company, where more than half of its registered capital has disappeared and more than one quarter of that capital has been lost over the preceding 12 months; |
| --- | --- | --- |

(262)

According to point 9 of the Rescue and Restructuring Guidelines, a firm is regarded to be in difficulty if it is unable to recover through its own resources or by rising the funds it needs from shareholders or on the market, and if without the intervention of public authorities it will almost certainly go out of business. In particular, according to point 10 of the Rescue and Restructuring Guidelines a firm is regarded to be in difficulty:

(a)

in the case of a limited liability company, where more than half of its registered capital has disappeared and more than one quarter of that capital has been lost over the preceding 12 months;

| (b) | when in a case of a company where at least some members have unlimited liability for the debt of the company, where more than half of its capital as shown in the company accounts has disappeared and more than one quarter has been lost in the preceding 12 months; |
| --- | --- |

(b)

when in a case of a company where at least some members have unlimited liability for the debt of the company, where more than half of its capital as shown in the company accounts has disappeared and more than one quarter has been lost in the preceding 12 months;

| (c) | whatever type of company concerned, where it fulfils the criteria under its domestic law for being the subject of collective insolvency proceedings. |
| --- | --- |

(c)

whatever type of company concerned, where it fulfils the criteria under its domestic law for being the subject of collective insolvency proceedings.

| (263) | Point 11 of the Rescue and Restructuring Guidelines provides that even when none of the circumstances set out in point 10 are present, a firm may still be considered as being in difficulty and lists some of the usual signs of such a situation, such as: increasing losses, diminishing turnover, growing stock inventories, excess capacity, declining cash flow, mounting debt, rising interest charges and falling or nil asset value. |
| --- | --- |

(263)

Point 11 of the Rescue and Restructuring Guidelines provides that even when none of the circumstances set out in point 10 are present, a firm may still be considered as being in difficulty and lists some of the usual signs of such a situation, such as: increasing losses, diminishing turnover, growing stock inventories, excess capacity, declining cash flow, mounting debt, rising interest charges and falling or nil asset value.

| (264) | Saremar had a EUR 5 253 530 loss in 2010. Despite the fact that the company experienced a EUR 2 523 439 profit in 2011 this result was not enough to cover the losses incurred in 2010. In fact the 2010 losses were twice higher than the 2011 surplus. The 2010 loss was carried over to 2012 and covered by a reduction in the company's capital from EUR 6 099 961 to EUR 1 209 010,64. Therefore, in 2011 Saremar lost over 80 % of its capital and must be regarded as a company in difficulties under point 10 of the Rescue and Restructuring Guidelines. |
| --- | --- |

(264)

Saremar had a EUR 5 253 530 loss in 2010. Despite the fact that the company experienced a EUR 2 523 439 profit in 2011 this result was not enough to cover the losses incurred in 2010. In fact the 2010 losses were twice higher than the 2011 surplus. The 2010 loss was carried over to 2012 and covered by a reduction in the company's capital from EUR 6 099 961 to EUR 1 209 010,64. Therefore, in 2011 Saremar lost over 80 % of its capital and must be regarded as a company in difficulties under point 10 of the Rescue and Restructuring Guidelines.

| (265) | Based on Saremar's 2012 balance sheet (54) the company still recorded a EUR 1,7 million loss in 2012. As mentioned in recital 157 above, the Commission notes that Saremar itself considered its financial situation in 2012 as critical. |
| --- | --- |

(265)

Based on Saremar's 2012 balance sheet (54) the company still recorded a EUR 1,7 million loss in 2012. As mentioned in recital 157 above, the Commission notes that Saremar itself considered its financial situation in 2012 as critical.

54

| (266) | This state of facts has been reflected by Decision 41/23/EC adopted by RAS on 15 October 2012. The Decision mentioned a Note dated 4 October 2012 submitted by Saremar's President, by which the latter informed RAS, inter alia, that unless the provisions of Regional Law 15 of 7 August 2012 laying down a EUR 10 million subsidy to the company were immediately enforced, the company's indebtedness would call into question the continuity of its activity, with significant impact on both the public service and on the envisaged privatisation of the company (55). |
| --- | --- |

(266)

This state of facts has been reflected by Decision 41/23/EC adopted by RAS on 15 October 2012. The Decision mentioned a Note dated 4 October 2012 submitted by Saremar's President, by which the latter informed RAS, inter alia, that unless the provisions of Regional Law 15 of 7 August 2012 laying down a EUR 10 million subsidy to the company were immediately enforced, the company's indebtedness would call into question the continuity of its activity, with significant impact on both the public service and on the envisaged privatisation of the company (55).

55

| (267) | Given the continuous losses, the liquidity problems and the analysis made by Saremar itself, the Commission concludes that the company must be considered a company in difficulty also on the basis of point 11 of the Rescue and Restructuring Guidelines. |
| --- | --- |

(267)

Given the continuous losses, the liquidity problems and the analysis made by Saremar itself, the Commission concludes that the company must be considered a company in difficulty also on the basis of point 11 of the Rescue and Restructuring Guidelines.

| (268) | In 2012, the financial difficulties of the Saremar were eased by the grating in November/December 2012 of the compensation subject to the current assessment. Had Saremar not received these sums it would have recorded a EUR 13 million loss in 2012. |
| --- | --- |

(268)

In 2012, the financial difficulties of the Saremar were eased by the grating in November/December 2012 of the compensation subject to the current assessment. Had Saremar not received these sums it would have recorded a EUR 13 million loss in 2012.

| (269) | According to point 9 of the 2011 SGEI Framework, SGEI compensation granted to firms in difficulty must be assessed under the Rescue and Restructuring Guidelines. Given that the conditions set out in the 2011 SGEI Decision are not fulfilled, the compensation received by Saremar in difficulty for the operation of the two routes in question must be assessed under the Rescue and Restructuring Guidelines, in order to establish whether it may be declared compatible with the internal market pursuant to Article 107(3) TFEU. |
| --- | --- |

(269)

According to point 9 of the 2011 SGEI Framework, SGEI compensation granted to firms in difficulty must be assessed under the Rescue and Restructuring Guidelines. Given that the conditions set out in the 2011 SGEI Decision are not fulfilled, the compensation received by Saremar in difficulty for the operation of the two routes in question must be assessed under the Rescue and Restructuring Guidelines, in order to establish whether it may be declared compatible with the internal market pursuant to Article 107(3) TFEU.

| (270) | The company did not receive any rescue or restructuring aid in last 10 years. Hence, the Commission finds that the company complies with the ‘one time, last time’ principle, as set out in point 72 et seq. of the Rescue and Restructuring Guidelines. |
| --- | --- |

(270)

The company did not receive any rescue or restructuring aid in last 10 years. Hence, the Commission finds that the company complies with the ‘one time, last time’ principle, as set out in point 72 et seq. of the Rescue and Restructuring Guidelines.

one time, last time

| (271) | However, all the conditions laid down in the Rescue and Restructuring Guidelines must be respected for State aid to a company in difficulty to be considered compatible with the internal market in accordance with Article 107(3)(c) TFEU. |
| --- | --- |

(271)

However, all the conditions laid down in the Rescue and Restructuring Guidelines must be respected for State aid to a company in difficulty to be considered compatible with the internal market in accordance with Article 107(3)(c) TFEU.

| (272) | First, pursuant to point 13 of the Rescue and Restructuring Guidelines a firm belonging to a larger business group is not normally eligible for restructuring aid, except where it can be demonstrated that the firm's difficulties are its own and are not the result of an arbitrary allocation of costs within the group, and that the difficulties are too serious to be dealt with by the group itself. Following its transfer from parent company Tirrenia, Saremar is entirely held by RAS and is not therefore part of a group. |
| --- | --- |

(272)

First, pursuant to point 13 of the Rescue and Restructuring Guidelines a firm belonging to a larger business group is not normally eligible for restructuring aid, except where it can be demonstrated that the firm's difficulties are its own and are not the result of an arbitrary allocation of costs within the group, and that the difficulties are too serious to be dealt with by the group itself. Following its transfer from parent company Tirrenia, Saremar is entirely held by RAS and is not therefore part of a group.

| (273) | Second, in order to consider a measure compatible under points 34 - 37 of the Rescue and Restructuring Guidelines, the restructuring plan has to analyse in detail the problems which have led to the difficulties and to set out the means by which to restore the long-term viability and health of the firm within a reasonable timescale. This has to be done on the basis of realistic assumptions as to future operating conditions with scenarios reflecting best-case, worst-case and intermediate assumptions and the firm's specific strengths and weaknesses. The plan must be submitted in all relevant detail to the Commission and include, in particular, a market survey. |
| --- | --- |

(273)

Second, in order to consider a measure compatible under points 34 - 37 of the Rescue and Restructuring Guidelines, the restructuring plan has to analyse in detail the problems which have led to the difficulties and to set out the means by which to restore the long-term viability and health of the firm within a reasonable timescale. This has to be done on the basis of realistic assumptions as to future operating conditions with scenarios reflecting best-case, worst-case and intermediate assumptions and the firm's specific strengths and weaknesses. The plan must be submitted in all relevant detail to the Commission and include, in particular, a market survey.

| (274) | No such plan has been provided to the Commission. It is true that RAS submitted Saremar's business plan for the period 2011 - 2022, however that plan does not comply with the requirements of the Rescue and Restructuring Guidelines. |
| --- | --- |

(274)

No such plan has been provided to the Commission. It is true that RAS submitted Saremar's business plan for the period 2011 - 2022, however that plan does not comply with the requirements of the Rescue and Restructuring Guidelines.

| (275) | In this case Saremar's business plan was approved in July 2010, before the compensation was granted by RAS and it was not predicated on the idea that such measure would be adopted in favour of Saremar. The plan was based on the assumption that the company would be partially privatised (RAS initially intended to divest 49 % of its stake in the company) by November 2010 and covered the twelve-year duration of the new public service contract sought to be signed with the buyer at the end of 2010. The plan does not present in detail the circumstances leading to the difficulties of the company, nor does it describe the means to restore its long term viability and makes no reference to the operation by Saremar of two links between Sardinia and the mainland. |
| --- | --- |

(275)

In this case Saremar's business plan was approved in July 2010, before the compensation was granted by RAS and it was not predicated on the idea that such measure would be adopted in favour of Saremar. The plan was based on the assumption that the company would be partially privatised (RAS initially intended to divest 49 % of its stake in the company) by November 2010 and covered the twelve-year duration of the new public service contract sought to be signed with the buyer at the end of 2010. The plan does not present in detail the circumstances leading to the difficulties of the company, nor does it describe the means to restore its long term viability and makes no reference to the operation by Saremar of two links between Sardinia and the mainland.

| (276) | On this basis the Commission considers that the measure has not been conditioned on the implementation of a business plan fulfilling the requirements of the Rescue and Restructuring Guidelines, which is sufficient to exclude its compatibility with the internal market. |
| --- | --- |

(276)

On this basis the Commission considers that the measure has not been conditioned on the implementation of a business plan fulfilling the requirements of the Rescue and Restructuring Guidelines, which is sufficient to exclude its compatibility with the internal market.

| (277) | Third, measures must be taken to ensure that the aid's adverse effects on trading conditions are mitigated as far as possible. The aid shall not unduly distort competition. This usually means a limitation of the presence which the company can enjoy on its markets at the end of the restructuring period. The compensatory measures should be in proportion to the distortive effects of the aid and, in particular, to the size and relative importance of the firm on its market or markets. The degree of compensatory measures must be established on a case-by-case basis and with regard to the objective of restoring the long-term-viability of the firm. Moreover, according to point 7 of the Rescue and Restructuring Guidelines the Commission will request compensatory measures which minimise the effect on competitors. RAS did not propose any compensatory measure in compensation for the potential distortion of competition caused by the granting of the aid. |
| --- | --- |

(277)

Third, measures must be taken to ensure that the aid's adverse effects on trading conditions are mitigated as far as possible. The aid shall not unduly distort competition. This usually means a limitation of the presence which the company can enjoy on its markets at the end of the restructuring period. The compensatory measures should be in proportion to the distortive effects of the aid and, in particular, to the size and relative importance of the firm on its market or markets. The degree of compensatory measures must be established on a case-by-case basis and with regard to the objective of restoring the long-term-viability of the firm. Moreover, according to point 7 of the Rescue and Restructuring Guidelines the Commission will request compensatory measures which minimise the effect on competitors. RAS did not propose any compensatory measure in compensation for the potential distortion of competition caused by the granting of the aid.

| (278) | Fourth, the aid must be limited to the strict minimum, necessary to enable the restructuring. The beneficiary is expected to make a significant contribution to the restructuring plan from its own resources, including the sale of assets not essential to the company's survival, or from external financing at market conditions. Such contribution must be real, i.e. actual, excluding all future profits such as cash flow, and is a sign that the markets believe in the feasibility of the return to viability of the company. |
| --- | --- |

(278)

Fourth, the aid must be limited to the strict minimum, necessary to enable the restructuring. The beneficiary is expected to make a significant contribution to the restructuring plan from its own resources, including the sale of assets not essential to the company's survival, or from external financing at market conditions. Such contribution must be real, i.e. actual, excluding all future profits such as cash flow, and is a sign that the markets believe in the feasibility of the return to viability of the company.

| (279) | In this case no own contribution was foreseen. |
| --- | --- |

(279)

In this case no own contribution was foreseen.

| (280) | The Commission concludes that the subsidy granted to Saremar to cover the deficit resulted from the operation in 2011 and 2012 of the two routes to mainland Italy constitutes incompatible aid to Saremar in difficulty. |
| --- | --- |

(280)

The Commission concludes that the subsidy granted to Saremar to cover the deficit resulted from the operation in 2011 and 2012 of the two routes to mainland Italy constitutes incompatible aid to Saremar in difficulty.

| (281) | For the sake of completeness, the Commission has also checked if the aid in question would have been compatible with the 2011 SGEI Framework had Saremar not been a company in difficulty at the moment it was granted. |
| --- | --- |

(281)

For the sake of completeness, the Commission has also checked if the aid in question would have been compatible with the 2011 SGEI Framework had Saremar not been a company in difficulty at the moment it was granted.

Genuine service of general economic interest as referred to in Article 106 of the Treaty

Genuine service of general economic interest as referred to in Article 106 of the Treaty

| (282) | As indicated in paragraph 56 of the 2011 SGEI Framework, Member States have a wide margin of discretion regarding the nature of services that could be classified as SGEIs. The Commission's task is to ensure that the margin of discretion is applied without manifest error as regards the definition of the SGEI. |
| --- | --- |

(282)

As indicated in paragraph 56 of the 2011 SGEI Framework, Member States have a wide margin of discretion regarding the nature of services that could be classified as SGEIs. The Commission's task is to ensure that the margin of discretion is applied without manifest error as regards the definition of the SGEI.

| (283) | On the basis of the grounds developed under recitals 188 - 210, the Commission considers that this condition has not been observed in this case. |
| --- | --- |

(283)

On the basis of the grounds developed under recitals 188 - 210, the Commission considers that this condition has not been observed in this case.

Need for an entrustment act specifying the PSOs and the methods of calculating compensation

Need for an entrustment act specifying the PSOs and the methods of calculating compensation

| (284) | In accordance with section 2.3 of the 2011 SGEI Framework, the concept of SGEI within the meaning of Article 106 TFEU means that the undertaking in question has been entrusted with the operation of the SGEI by way of one or more official acts. |
| --- | --- |

(284)

In accordance with section 2.3 of the 2011 SGEI Framework, the concept of SGEI within the meaning of Article 106 TFEU means that the undertaking in question has been entrusted with the operation of the SGEI by way of one or more official acts.

| (285) | These acts must specify, in particular:






  (a) | The precise nature of the public service obligation and its duration; |
| --- | --- | --- |

(285)

These acts must specify, in particular:

(a)

The precise nature of the public service obligation and its duration;

| (b) | The undertaking and territory concerned; |
| --- | --- |

(b)

The undertaking and territory concerned;

| (c) | The nature of the exclusive rights assigned to Saremar; |
| --- | --- |

(c)

The nature of the exclusive rights assigned to Saremar;

| (d) | The description of the compensation mechanism and the parameters for calculating, controlling and reviewing the compensation; |
| --- | --- |

(d)

The description of the compensation mechanism and the parameters for calculating, controlling and reviewing the compensation;

| (e) | The arrangements for avoiding and repaying any overcompensation. |
| --- | --- |

(e)

The arrangements for avoiding and repaying any overcompensation.

| (286) | The Commission notes that, in this case, the entrustment acts do not refer to any compensation to Saremar for the discharge of PSOs and therefore they do not comply with the requirements under letters (d) and (e) above. |
| --- | --- |

(286)

The Commission notes that, in this case, the entrustment acts do not refer to any compensation to Saremar for the discharge of PSOs and therefore they do not comply with the requirements under letters (d) and (e) above.

Duration of the period of entrustment

Duration of the period of entrustment

| (287) | As indicated in section 2.4 of the 2011 SGEI Framework, ‘the duration of the period of entrustment should be justified by reference to objective criteria such as the need to amortise non-transferable fixed assets. In principle, the duration of the period of entrustment should not exceed the period required for the depreciation of the most significant assets required to provide the SGEI.’ |
| --- | --- |

(287)

As indicated in section 2.4 of the 2011 SGEI Framework, ‘the duration of the period of entrustment should be justified by reference to objective criteria such as the need to amortise non-transferable fixed assets. In principle, the duration of the period of entrustment should not exceed the period required for the depreciation of the most significant assets required to provide the SGEI.’

| (288) | Given that in this case the period of operation of the services is limited to 2011 and 2012, this condition is complied with. |
| --- | --- |

(288)

Given that in this case the period of operation of the services is limited to 2011 and 2012, this condition is complied with.

Amount of compensation

Amount of compensation

| (289) | Paragraph 21 of the 2011 SGEI Framework states that ‘(...) the amount of the compensation must not exceed what is necessary to cover the cost of discharging the public service obligations, including a reasonable profit’. In order to be deemed necessary, the aid measure must, in its amount and form, be necessary to achieve the public interest objective. It must be of the minimum amount necessary to reach the objective and take the form most appropriate to remedy the disturbance. It is therefore necessary, in this case, to quantify the extra costs of the PSOs imposed on Saremar by the entrustment acts and compare these additional costs with the advantages granted to it by RAS. |
| --- | --- |

(289)

Paragraph 21 of the 2011 SGEI Framework states that ‘(...) the amount of the compensation must not exceed what is necessary to cover the cost of discharging the public service obligations, including a reasonable profit’. In order to be deemed necessary, the aid measure must, in its amount and form, be necessary to achieve the public interest objective. It must be of the minimum amount necessary to reach the objective and take the form most appropriate to remedy the disturbance. It is therefore necessary, in this case, to quantify the extra costs of the PSOs imposed on Saremar by the entrustment acts and compare these additional costs with the advantages granted to it by RAS.

| (290) | The public service compensation granted to Saremar amounts to EUR 10 million. RAS claimed that over the relevant period, the extra costs incurred in the provision of the service corresponded to the financial support granted to Saremar without taking into account any reasonable profit. The investigation showed that on the routes in question Saremar had a EUR 214 000 loss in 2011 and a EUR 13 440 220 loss in 2012. |
| --- | --- |

(290)

The public service compensation granted to Saremar amounts to EUR 10 million. RAS claimed that over the relevant period, the extra costs incurred in the provision of the service corresponded to the financial support granted to Saremar without taking into account any reasonable profit. The investigation showed that on the routes in question Saremar had a EUR 214 000 loss in 2011 and a EUR 13 440 220 loss in 2012.

| (291) | Based on these results, the compensation granted by RAS would seem not to exceed the deficit incurred in the operation of the services. However, as already observed as regards the third Altmark condition and for the same reasons detailed above, the Commission considers that Saremar was not entitled to receive any compensation for the costs incurred in the operation of the two routes, and the compensation did not reflect clearly defined public service obligations. |
| --- | --- |

(291)

Based on these results, the compensation granted by RAS would seem not to exceed the deficit incurred in the operation of the services. However, as already observed as regards the third Altmark condition and for the same reasons detailed above, the Commission considers that Saremar was not entitled to receive any compensation for the costs incurred in the operation of the two routes, and the compensation did not reflect clearly defined public service obligations.

| (292) | Finally, given that the aid was granted after the entry into force of the new SGEI Framework, its compatibility must also be assessed against the following conditions:






  (a) | Paragraph 14: give proper consideration to public service needs when entrusting the provider with a particular SGEI; |
| --- | --- | --- |

(292)

Finally, given that the aid was granted after the entry into force of the new SGEI Framework, its compatibility must also be assessed against the following conditions:

(a)

Paragraph 14: give proper consideration to public service needs when entrusting the provider with a particular SGEI;

| (b) | Paragraph 19: compliance with Union public procurement rules when entrusting an SGEI; |
| --- | --- |

(b)

Paragraph 19: compliance with Union public procurement rules when entrusting an SGEI;

| (c) | Paragraph 20: absence of discrimination; |
| --- | --- |

(c)

Paragraph 20: absence of discrimination;

| (d) | Paragraph 24 (and onwards): application of net avoided cost methodology to calculate the net cost; |
| --- | --- |

(d)

Paragraph 24 (and onwards): application of net avoided cost methodology to calculate the net cost;

| (e) | Paragraph 39 (and onwards): efficiency incentives; |
| --- | --- |

(e)

Paragraph 39 (and onwards): efficiency incentives;

| (f) | Paragraph 60: transparency. |
| --- | --- |

(f)

Paragraph 60: transparency.

| (293) | RAS has not carried out a public consultation, nor published the required information concerning the PSOs and the compensation paid for their discharge beforehand. In fact, as detailed above, no compensation had initially been provided for, given that the services were considered commercially viable. |
| --- | --- |

(293)

RAS has not carried out a public consultation, nor published the required information concerning the PSOs and the compensation paid for their discharge beforehand. In fact, as detailed above, no compensation had initially been provided for, given that the services were considered commercially viable.

| (294) | According to paragraph 21 of the 2012 SGEI Framework, ‘[t]he amount of compensation must not exceed what is necessary to cover the net cost of discharging the public service obligations, including a reasonable profit.’ In accordance with paragraph 24 of the 2012 SGEI Framework the net cost necessary for the discharge of PSOs has to be calculated based on a comparison of the provider's situation with and without the public service obligations to discharge. No such calculation was carried out in this case. |
| --- | --- |

(294)

According to paragraph 21 of the 2012 SGEI Framework, ‘[t]he amount of compensation must not exceed what is necessary to cover the net cost of discharging the public service obligations, including a reasonable profit.’ In accordance with paragraph 24 of the 2012 SGEI Framework the net cost necessary for the discharge of PSOs has to be calculated based on a comparison of the provider's situation with and without the public service obligations to discharge. No such calculation was carried out in this case.

| (295) | In addition, no mechanism for incentivising efficiencies was set out in the entrustment acts. Nor has RAS justified that the introduction of such incentives was not feasible or appropriate. Finally, the transparency obligations have not been complied with. |
| --- | --- |

(295)

In addition, no mechanism for incentivising efficiencies was set out in the entrustment acts. Nor has RAS justified that the introduction of such incentives was not feasible or appropriate. Finally, the transparency obligations have not been complied with.

| (296) | The Commission therefore concludes that the compensation granted to Saremar for the operation of the services is incompatible with the internal market under the 2011 SGEI Framework. |
| --- | --- |

(296)

The Commission therefore concludes that the compensation granted to Saremar for the operation of the services is incompatible with the internal market under the 2011 SGEI Framework.

7.3.2.   THE RECAPITALISATION

| (297) | In the course of the investigation, RAS put forward two main arguments as regards the recapitalisation: first, that the measure had only partially been put into effect and, second, that it concerned financing to which Saremar was lawfully entitled. As already mentioned, RAS has not argued that the measure would amount to restructuring aid within the meaning of the Rescue and Restructuring Guidelines. In fact, as explained above, RAS did not comment on the compatibility of the measure with the internal market. |
| --- | --- |

(297)

In the course of the investigation, RAS put forward two main arguments as regards the recapitalisation: first, that the measure had only partially been put into effect and, second, that it concerned financing to which Saremar was lawfully entitled. As already mentioned, RAS has not argued that the measure would amount to restructuring aid within the meaning of the Rescue and Restructuring Guidelines. In fact, as explained above, RAS did not comment on the compatibility of the measure with the internal market.

| (298) | Nonetheless, the Commission considers that Saremar qualifies as an undertaking in difficulty within the meaning of the Rescue and Restructuring Guidelines and is therefore eligible to receive restructuring aid. The recapitalisation constitutes restructuring aid which must be assessed under the Rescue and Restructuring Guidelines, in order to establish whether it may be compatible with the internal market pursuant to Article 107(3) TFEU. |
| --- | --- |

(298)

Nonetheless, the Commission considers that Saremar qualifies as an undertaking in difficulty within the meaning of the Rescue and Restructuring Guidelines and is therefore eligible to receive restructuring aid. The recapitalisation constitutes restructuring aid which must be assessed under the Rescue and Restructuring Guidelines, in order to establish whether it may be compatible with the internal market pursuant to Article 107(3) TFEU.

| (299) | Given that the compatibility criteria laid down by the Rescue and Restructuring Guidelines are not met (see in particular the grounds developed in recitals 272 - 279 the Commission concludes that the compensations paid to Saremar constitutes incompatible restructuring aid to a company in difficulty. The measure cannot therefore be deemed compatible with the internal market. |
| --- | --- |

(299)

Given that the compatibility criteria laid down by the Rescue and Restructuring Guidelines are not met (see in particular the grounds developed in recitals 272 - 279 the Commission concludes that the compensations paid to Saremar constitutes incompatible restructuring aid to a company in difficulty. The measure cannot therefore be deemed compatible with the internal market.

7.3.3.   CONCLUSION

| (300) | The following measures implemented by RAS in favour of Saremar constitute State aid incompatible with the internal market:






  (a) | The EUR 10 million compensation for the operation of the two additional routes linking Sardinia to the mainland granted by Regional Law 15 of 7 August 2012 and effectively paid to Saremar in two instalments on 6 November 2012 and 3 December 2012; |
| --- | --- | --- |

(300)

The following measures implemented by RAS in favour of Saremar constitute State aid incompatible with the internal market:

(a)

The EUR 10 million compensation for the operation of the two additional routes linking Sardinia to the mainland granted by Regional Law 15 of 7 August 2012 and effectively paid to Saremar in two instalments on 6 November 2012 and 3 December 2012;

| (b) | The EUR 6 099 961 recapitalisation decided on 15 June 2012 (of which EUR 824 309,69 paid on 11 July 2012). |
| --- | --- |

(b)

The EUR 6 099 961 recapitalisation decided on 15 June 2012 (of which EUR 824 309,69 paid on 11 July 2012).

| (301) | The payment of promotional activities and the comfort letters do not involve State aid to Saremar. |
| --- | --- |

(301)

The payment of promotional activities and the comfort letters do not involve State aid to Saremar.

7.4.   CONCLUSION

CONCLUSION

| (302) | The aid measures in question are incompatible with the internal market. Italy has unlawfully implemented the aids in question in breach of Article 108(3) of the Treaty on the Functioning of the European Union. |
| --- | --- |

(302)

The aid measures in question are incompatible with the internal market. Italy has unlawfully implemented the aids in question in breach of Article 108(3) of the Treaty on the Functioning of the European Union.

| (303) | In accordance with the TFEU and the Court of Justice's established case-law, the Commission is competent to decide that the Member State concerned must abolish or alter aid (56) when it has found that it is incompatible with the internal market. The Court has also consistently held that the obligation on a State to abolish aid regarded by the Commission as being incompatible with the internal market is designed to re-establish the previously existing situation (57). In this context, the Court has stated that that objective is attained once the recipient has repaid the amounts granted by way of unlawful aid, thus forfeiting the advantage which it had enjoyed over its competitors on the market, and the situation prior to the payment of the aid is restored (58). |
| --- | --- |

(303)

In accordance with the TFEU and the Court of Justice's established case-law, the Commission is competent to decide that the Member State concerned must abolish or alter aid (56) when it has found that it is incompatible with the internal market. The Court has also consistently held that the obligation on a State to abolish aid regarded by the Commission as being incompatible with the internal market is designed to re-establish the previously existing situation (57). In this context, the Court has stated that that objective is attained once the recipient has repaid the amounts granted by way of unlawful aid, thus forfeiting the advantage which it had enjoyed over its competitors on the market, and the situation prior to the payment of the aid is restored (58).

56

57

58

| (304) | Following that case-law, Article 14 of Council Regulation (EC) No 659/1999 (59) laid down that ‘where negative decisions are taken in respect of unlawful aid, the Commission shall decide that the Member State concerned shall take all necessary measures to recover the aid from the beneficiary.’ |
| --- | --- |

(304)

Following that case-law, Article 14 of Council Regulation (EC) No 659/1999 (59) laid down that ‘where negative decisions are taken in respect of unlawful aid, the Commission shall decide that the Member State concerned shall take all necessary measures to recover the aid from the beneficiary.’

59

| (305) | Thus, given that the measures identified in recital 300 are considered unlawful and incompatible State aid, the amount of aid of these measures already granted, i.e. EUR 10 824 309,69, must be recovered in order to re-establish the situation that existed on the market prior to the granting of the aid. |
| --- | --- |

(305)

Thus, given that the measures identified in recital 300 are considered unlawful and incompatible State aid, the amount of aid of these measures already granted, i.e. EUR 10 824 309,69, must be recovered in order to re-establish the situation that existed on the market prior to the granting of the aid.

| (306) | This Decision does not concern or prejudge any other issues covered by the 2011 and 2012 Decisions or brought to the attention of the Commission by interested parties in the course of the investigation opened under those Decisions. |
| --- | --- |

(306)

This Decision does not concern or prejudge any other issues covered by the 2011 and 2012 Decisions or brought to the attention of the Commission by interested parties in the course of the investigation opened under those Decisions.

HAS ADOPTED THIS DECISION:

Article 1

1.   The State aid measures granted to Saremar in the form of public service compensation by Regional Law 15 of 7 August 2012 and in the form of a capital injection decided by Saremar Shareholders' Assembly on 15 June 2012 are incompatible with the internal market. That aid was unlawfully put into effect by Italy in breach of Article 108(3) of the Treaty on the Functioning of the European Union.

2.   The payment of promotional activities and the comfort letters do not involve State aid to Saremar.

Article 2

1.   Italy shall recover the incompatible aid referred to in Article 1(1) from the beneficiary.

2.   The sums to be recovered shall bear interest from the date on which they were put at the disposal of the beneficiary until their actual recovery.

3.   The interest shall be calculated on a compound basis in accordance with Chapter V of Commission Regulation (EC) No 794/2004 (60) and to Commission Regulation (EC) No 271/2008 (61) amending Regulation (EC) No 794/2004.

Article 3

1.   Recovery of the aid referred to in Article 1 shall be immediate and effective.

2.   Italy shall ensure that this Decision is implemented within four months following the date of notification of this Decision.

Article 4

1.   Within two months following notification of this Decision, Italy shall submit the following information:

| (a) | the total amount (principal and recovery interests) to be recovered from the beneficiary; |
| --- | --- |

(a)

the total amount (principal and recovery interests) to be recovered from the beneficiary;

| (b) | a detailed description of the measures already taken and planned to comply with this Decision; |
| --- | --- |

(b)

a detailed description of the measures already taken and planned to comply with this Decision;

| (c) | documents demonstrating that the beneficiary has been ordered to repay the aid. |
| --- | --- |

(c)

documents demonstrating that the beneficiary has been ordered to repay the aid.

2.   Italy shall keep the Commission informed of the progress of the national measures taken to implement this Decision until recovery of the aid granted under the scheme referred to in Article 1 has been completed. It shall immediately submit, on simple request by the Commission, information on the measures already taken and planned to comply with this Decision. It shall also provide detailed information concerning the amounts of aid and recovery interest already recovered from the beneficiary.

Article 5

This Decision is addressed to the Italian Republic.

Done at Brussels, 22 January 2014.

For the Commission

Joaquín ALMUNIA

Vice-President

---

(1)  
  OJ C 28, 1.2.2012, p. 18 and OJ C 84, 22.3.2013, p. 58.

1

(2)  
  OJ C 28, 1.2.2012, p. 18.

2

(3)  As from 2004, the former Tirrenia Group was formed by Tirrenia di Navigazione S.p.A, Saremar — Sardegna Regionale Marittima S.p.A., Toremar — Toscana Regionale Marittima S.p.A., Siremar – Sicilia Regionale Marittima S.p.A. and Caremar — Campania Regionale Marittima S.p.A.

3

(4)  
  OJ C 84, 22.3.2013, p. 58.

4

(5)  Fintecna is wholly owned by the Italian Ministry of the Economy and Finance and is specialised in managing equity stakes and privatisation processes, as well as dealing with projects to rationalise and restructure companies facing industrial, financial or organisational difficulties.

5

(6)  By virtue of the 2009 law, the business branch operating links with the Pontino Archipelago was separated from Caremar and transferred to the Lazio Region.

6

(7)  Article 19 ter (10) of the 2009 law.

7

ter

(8)  Case I743 – Ferries Prices to/from Sardinia, on the alleged violation of Article 101 TFEU by private competitors (Onorato Participazioni S.r.l., Moby S.p.a., Marinsvest S.r.l., Investitori Associati SGR S.p.a., Grandi Navi Veloci S.p.a., SNAV S.p.a., Lotta Maritime S.A., Forship S.p.a, Clessidra SGR S.p.a. and L19 S.p.a.) on certain routes connecting Sardinia to the mainland.

8

(9)  Daily connection from 1 April 2012.

9

(10)  3 days/week from 1 June 2012 to 19 June 2012 and from 4 September 2012 to 15 September 2012.

10

(11)  Relazione sul Rendiconto generale della Regione autonoma della Sardegna per l'esercizio finanziario 2012, page 359, available at: http://www.corteconti.it/export/sites/portalecdc/_documenti/controllo/sezioni_riunite/sezioni_riunite_regione_sardegna/2013/relazione_parifixa.pdf.

11

(12)  SNAV operated the Olbia – Civitavecchia route until May 2011, whn was replaced by GNV.

12

(13)  See footnote 8.

13

(14)  Decision of the NCA No 24033 of 31 October 2012, SP136 – Saremar — Sardegna Regionale Marittima/Routes Civitavecchia – Golfo degli Aranci e Vado Ligure – Porto Torres.

14

(15)  CIN was set up in November 2010 by Grimaldi, Marinvest and Moby for the purpose of participating in the tender to acquire Tirrenia. Beginning of 2011 Marinvest (controlling SNAV) acquired the control over GNV; also, in March 2011 Moby transferred its shareholding in CIN to its controlling shareholder Onorato Participazioni. Thus in March 2011 CIN's main shareholders were Onorato Participazioni (controlling Moby) and Marinvest (controlling GNV and SNAV).

15

(16)  Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ L 24, 29.1.2004, p. 1).

16

(17)  By Decision No 23650 of 21 June 2012, C11613, the NCA conditionally approved the acquisition of the Tirrenia business branch by CIN, jointly held by Moby (40 %), L19 (30 %), Gruppo Investimenti Portuali S.p.A. (20 %), Shipping Investment S.r.l. (10 %). Certain conditions have been imposed by the NCA, inter alia, concerning non application code-sharing agreements between Moby and CIN during 2012 – 2016 and the application, on the Civitavecchia — Olbia, Genova — Porto Torres and Genova — Olbia of fares such as to maintain the average unit revenue obtained by Moby in summer 2009 (except the increase directly attributable to the increase in bunker costs). CIN/Tirrenia will replace Moby on the Genova — Porto Torres route. On the Civitavecchia – Olbia route Moby and CIN will transfer to other operators 10 % of capacity in the 2013 and 2014 summer seasons.

17

(18)  SNAV has traditionally operated the route until May 2011.

18

(19)  Decision of the NCA No 24418 of 18 June 2013, C11613B.

19

(20)  The Bonus Sardo — Vacanza project was approved with a view to promote and support tourism in Sardinia. Under the project, costs of transport by ferry (capped at 90 EUR, applicable to groups of minimum two passengers) were reimbursed directly to passengers travelling to/from Sardinia and requiring at least three nights accommodation in Sardinia in summer 2011.

20

(21)  After use of the legal reserve and earnings from previous financial years.

21

(22)  Case C-280/00 — Altmark Trans and Regierungspräsidium Magdeburg [2003] ECR I-7747.

22

Altmark Trans and Regierungspräsidium Magdeburg

(23)  Commission Decision 2005/842/EC of 28 November 2005 on the application of Article 86(2) of the EC Treaty to State aid in the form of public service compensation granted to certain undertakings entrusted with the operation of services of general economic interest (OJ L 312, 29.11.2005, p. 67).

23

(24)  Commission Decision 2012/21/EU of 20 December 2011 on the application of Article 106(2) of the Treaty on the Functioning of the European Union to State aid in the form of public service compensation granted to certain undertakings entrusted with the operation of services of general economic interest (OJ L 7, 11.1.2012, p. 3).

24

(25)  
  OJ C 8, 11.1.2012, p. 15.

25

(26)  Regulation (EC) No 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road and repealing Council Regulations (EEC) Nos 1191/69 and 1107/70 (OJ L 315, 3.12.2007, p. 1).

26

(27)  Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community (OJ L 293, 31.10.2008, p. 3).

27

(28)  Council Regulation (EEC) No 3577/92 of 7 December 1992 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) (OJ L 364, 12.12.1992, p. 7).

28

(29)  The report invokes the Relazione al bilancio 2011.

29

(30)  See, mutatis mutandis, Joined Cases C-214/12 P, C-215/12 P, C-223/12 P, Land Burgenland v Commission, judgment of 24 October 2013, not yet published in the ECR, paragraph 56.

30

mutatis mutandis

(31)  Joined Cases C-214/12 P, C-215/12 P, C-223/12 P, cited, paragraph 57.

31

(32)  As confirmed by the NCA, the Sardinian ports of Olbia and Golfo Aranci may be considered substitutable on the demand side. The same applies to the Ligurian ports of Genova and Vado Ligure.

32

(33)  See, paragraph 47 and 48 of the Communication from the Commission on the application of the European Union State aid rules to compensation granted for the provision of services of general economic interest (OJ C 8, 11.1.2012, p. 4).

33

(34)  Decision 27/4/EC.

34

(*1)  Covered by the obligation of professional secrecy.

*1

(35)  Relazione sul Rendiconto generale della Regione autonoma della Sardegna per l'esercizio finanziario 2012, page 360, available at: http://www.corteconti.it/export/sites/portalecdc/_documenti/controllo/sezioni_riunite/sezioni_riunite_regione_sardegna/2013/relazione_parifixa.pdf.

35

(36)  Case T-289/03 BUPA and Others v Commission [2008] ECR II-81, paragraph 96. See also Opinion of Advocate General Tizzano in case C-53/00 Ferring, ECR I-9069 and Opinion of Advocate General Jacobs in Case C-126/01, GEMO, [2003] ECR I-13769.

36

BUPA and Others v Commission

Ferring

GEMO,

(37)  Communication from the Commission on the application of the European Union State aid rules to compensation granted for the provision of services of general economic interest.

37

(38)  Commission Communication C(2004)43 – Community Guidelines on State aid to maritime transport (OJ C 13, 17.1.2004, p. 3).

38

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

39

(40)  Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions updating and rectifying the Communication on the interpretation of Council Regulation (EEC) No 3577/92 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage), COM(2003) 595 final, 22 December 2003.

40

(41)  NCA Decision on the Tirrenia/CIN merger, Table 3.

41

(42)  NCA Decision on the Tirrenia/CIN merger, paragraph 45.

42

(43)  NCA Decision on the Tirrenia/CIN merger, paragraph 46.

43

(44)  At most 40 departures each way during the year.

44

(45)  At most 40 departures each way during June-September, Christmas and Easter holidays.

45

(46)  Case C-239/09 Seydaland Vereinigte Agrarbetriebe & Co. KG v BVVG Bodenverwertungs- und -verwaltungs GmbH [2010] ECR I-13083, paragraph 39.

46

Seydaland Vereinigte Agrarbetriebe & Co. KG

BVVG Bodenverwertungs- und -verwaltungs GmbH

(47)  Case C-261/89 Italy v Commission [1991] ECR I-4437, paragraph 8; Joined Cases C-278/92 to C-280/92 Spain v Commission, cited above, paragraph 21; Case C-42/93 Spain v Commission [1994] ECR I-4175, paragraph 13.

47

(48)  See points 3.1 and 3.2 of the Export-credit Communication, the Commission's notice regarding Application of Articles 92 and 93 of the EEC Treaty [now 107 and 108 of the TFEU] to public authorities' holdings, Bulletin EC 9-1984, and the Commission Communication to the Member States on the application of Articles 92 and 93 of the EC Treaty and of Article 5 of Commission Directive 80/723/EEC to public undertakings in the manufacturing sector (OJ C 307, 13.11.1993, p. 3).

48

Application of Articles 92 and 93 of the EEC Treaty [now 107 and 108 of the TFEU] to public authorities' holdings

(49)  Commission communication to the Member States on the application of Articles 92 and 93 of the EEC Treaty and of Article 5 of Commission Directive 80/723/EEC to public undertakings in the manufacturing sector (OJ C 307, 13.11.1993, p. 3).

49

(50)  See Commission communication to the Member States on the application of Articles 92 and 93 of the EEC Treaty, paragraph 36.

50

(51)  See for instance judgment of the Court in case C-372/97 Italy v Commission [2004] ECR I-3679, paragraph 44.

51

Italy

Commission

(52)  C-364/90 — Italy v Commission [1993] ECR I-2097, paragraph 20.

52

Italy v Commission

(53)  Case C-410/04 — Associazione Nazionale Autotrasporto Viaggiatori (ANAV) v Comune di Bari and AMTAB Servizio S.p.A.

53

Associazione Nazionale Autotrasporto Viaggiatori (ANAV) v Comune di Bari and AMTAB Servizio S.p.A

(54)  http://www.sardiniapost.it/wp-content/uploads/2013/10/Bilancio-Saremar-2012.61-78.pdf.

54

(55)  Relazione sul Rendiconto generale della Regione autonoma della Sardegna per l'esercizio finanziario 2012, p. 359, available at: http://www.corteconti.it/export/sites/portalecdc/_documenti/controllo/sezioni_riunite/sezioni_riunite_regione_sardegna/2013/relazione_parifixa.pdf.

55

(56)  Case C-70/72 Commission v Germany, paragraph 13.

56

Commission v Germany

(57)  Joined Cases C-278/92, C-279/92 and C-280/92 Spain v Commission, paragraph 75.

57

Spain v Commission

(58)  Case C-75/97 Belgium v Commission, paragraphs 64-65.

58

Belgium v Commission

(59)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 108 of the Treaty on the functioning of the European Union (OJ L 83, 27.3.1999, p. 1).

59

(60)  Commission Regulation (EC) No 794/2004 of 21 April 2004 implementing Council Regulation (EU) 2015/1589 laying down detailed rules for the application of Article 108 of the Treaty on the functioning of the European Union (OJ L 140, 30.4.2004, p. 1).

60

(61)  Commission Regulation (EC) No 271/2008 of 30 January 2008 amending Regulation (EC) No 794/2004 implementing Council Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ L 82, 25.3.2008, p. 1).

61

---

ANNEX

Information about the amounts of aid received, to be recovered and already recovered

| Identity of the beneficiary | Total amount of aid received under the scheme (1) | Total amount of aid to be recovered (1)

  (Principal) | Total amount already reimbursed (1) |
| --- | --- | --- | --- |
| Principal | Recovery interest |
| | | | | |
| | | | | |
| | | | | |
| | | | | |
| | | | | |
| | | | | |
| | | | | |

Identity of the beneficiary

Total amount of aid received under the scheme (1)

Total amount of aid to be recovered (1)

(Principal)

Total amount already reimbursed (1)

Principal

Recovery interest

---

(1)  Million of national currency.

---

| 22.2.2018 | EN | Official Journal of the European Union | L 49/64 |
| --- | --- | --- | --- |

22.2.2018

EN

Official Journal of the European Union

L 49/64

---

COMMISSION DECISION (EU) 2018/262

of 14 February 2018

on the proposed citizens' initiative entitled ‘We are a welcoming Europe, let us help!’

(notified under document C(2018) 895)

(Only the English text is authentic)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Regulation (EU) No 211/2011 of the European Parliament and of the Council of 16 February 2011 on the citizens' initiative (1), and in particular Article 4 thereof,

Whereas:

| (1) | The subject-matter of the proposed citizens' initiative entitled ‘We are a welcoming Europe, let us help!’ refers to the following ‘Governments are struggling to handle migration. Most of us want to help people in need because we care. Millions have stood up to help. Now we want to be heard. Let's reclaim a Welcoming Europe! We call upon the European Commission to act’. |
| --- | --- |

(1)

The subject-matter of the proposed citizens' initiative entitled ‘We are a welcoming Europe, let us help!’ refers to the following ‘Governments are struggling to handle migration. Most of us want to help people in need because we care. Millions have stood up to help. Now we want to be heard. Let's reclaim a Welcoming Europe! We call upon the European Commission to act’.

| (2) | The stated objectives of the proposed citizens' initiative are: ‘1. Citizens across Europe want to sponsor refugees to offer them a safe home and a new life. We want the Commission to offer direct support to local groups that help refugees who are granted national visas. 2. No one should be prosecuted or fined for offering humanitarian help or shelter. We want the Commission to stop those governments that are punishing volunteers. 3. Everyone has the right to justice. We want the Commission to guarantee more effective ways and rules to defend all victims of labour exploitation and crime across Europe and all victims of human rights abuses at our borders’. |
| --- | --- |

(2)

The stated objectives of the proposed citizens' initiative are: ‘1. Citizens across Europe want to sponsor refugees to offer them a safe home and a new life. We want the Commission to offer direct support to local groups that help refugees who are granted national visas. 2. No one should be prosecuted or fined for offering humanitarian help or shelter. We want the Commission to stop those governments that are punishing volunteers. 3. Everyone has the right to justice. We want the Commission to guarantee more effective ways and rules to defend all victims of labour exploitation and crime across Europe and all victims of human rights abuses at our borders’.

| (3) | The Treaty on European Union (TEU) reinforces citizenship of the Union and enhances further the democratic functioning of the Union by providing, inter alia, that every citizen is to have the right to participate in the democratic life of the Union by way of a European citizens' initiative. |
| --- | --- |

(3)

The Treaty on European Union (TEU) reinforces citizenship of the Union and enhances further the democratic functioning of the Union by providing, inter alia, that every citizen is to have the right to participate in the democratic life of the Union by way of a European citizens' initiative.

| (4) | To this end, the procedures and conditions required for the citizens' initiative should be clear, simple, user-friendly and proportionate to the nature of the citizens' initiative so as to encourage participation by citizens and to make the Union more accessible. |
| --- | --- |

(4)

To this end, the procedures and conditions required for the citizens' initiative should be clear, simple, user-friendly and proportionate to the nature of the citizens' initiative so as to encourage participation by citizens and to make the Union more accessible.

| (5) | Legal acts of the Union for the purpose of implementing the Treaties can be adopted:






  — | concerning the checks to which persons crossing external borders are subject, on the basis of Article 77(2)(b) of the Treaty on the Functioning of the European Union (TFEU), |
| --- | --- | --- |

(5)

Legal acts of the Union for the purpose of implementing the Treaties can be adopted:

—

concerning the checks to which persons crossing external borders are subject, on the basis of Article 77(2)(b) of the Treaty on the Functioning of the European Union (TFEU),

| — | governing a common European asylum system, on the basis of Article 78(2) TFEU, |
| --- | --- |

—

governing a common European asylum system, on the basis of Article 78(2) TFEU,

| — | providing for measures for the purposes of a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows, fair treatment of third-country nationals residing legally in Member States, and the prevention of, and enhanced measures to combat, illegal immigration and trafficking in human beings, on the basis of Article 79(2) TFEU, |
| --- | --- |

—

providing for measures for the purposes of a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows, fair treatment of third-country nationals residing legally in Member States, and the prevention of, and enhanced measures to combat, illegal immigration and trafficking in human beings, on the basis of Article 79(2) TFEU,

| — | establishing minimum rules on the rights of victims of crime, to the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension, on the basis of Article 82(2)(c) TFEU, |
| --- | --- |

—

establishing minimum rules on the rights of victims of crime, to the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension, on the basis of Article 82(2)(c) TFEU,

| — | establishing minimum rules concerning the definition of criminal offences and sanctions in certain areas, on the basis of Article 83(1) and (2) TFEU. |
| --- | --- |

—

establishing minimum rules concerning the definition of criminal offences and sanctions in certain areas, on the basis of Article 83(1) and (2) TFEU.

| (6) | As regards the second limb of the proposed citizens' initiative, the Union's competences pursuant to Article 83 TFEU are limited in that, whilst conferring on the Union the competence to adopt minimum rules concerning the definition of criminal offences, Article 83 TFEU does not allow prohibiting Member States from penalising other types of behaviour, as they consider appropriate, including acts linked to illegal immigration. |
| --- | --- |

(6)

As regards the second limb of the proposed citizens' initiative, the Union's competences pursuant to Article 83 TFEU are limited in that, whilst conferring on the Union the competence to adopt minimum rules concerning the definition of criminal offences, Article 83 TFEU does not allow prohibiting Member States from penalising other types of behaviour, as they consider appropriate, including acts linked to illegal immigration.

| (7) | However the second limb of the proposed citizens' initiative also needs to be examined in the light of Article 79 TFEU. Pursuant to that provision, legal acts of the Union for the purpose of implementing the Treaties can be adopted — for the purposes of a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows and the prevention of, and enhanced measures to combat, illegal immigration and trafficking in human beings —, inter alia, in the area of illegal immigration and unauthorised residence, including removal and repatriation of persons residing without authorisation. |
| --- | --- |

(7)

However the second limb of the proposed citizens' initiative also needs to be examined in the light of Article 79 TFEU. Pursuant to that provision, legal acts of the Union for the purpose of implementing the Treaties can be adopted — for the purposes of a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows and the prevention of, and enhanced measures to combat, illegal immigration and trafficking in human beings —, inter alia, in the area of illegal immigration and unauthorised residence, including removal and repatriation of persons residing without authorisation.

| (8) | For those reasons, the proposed citizens' initiative does not fall manifestly outside the framework of the Commission's powers to submit a proposal for a legal act of the Union for the purpose of implementing the Treaties. |
| --- | --- |

(8)

For those reasons, the proposed citizens' initiative does not fall manifestly outside the framework of the Commission's powers to submit a proposal for a legal act of the Union for the purpose of implementing the Treaties.

| (9) | Furthermore, the citizens' committee has been formed and the contact persons have been designated in accordance with Article 3(2) of the Regulation and the proposed citizens' initiative is neither manifestly abusive, frivolous or vexatious nor manifestly contrary to the values of the Union as set out in Article 2 TEU. |
| --- | --- |

(9)

Furthermore, the citizens' committee has been formed and the contact persons have been designated in accordance with Article 3(2) of the Regulation and the proposed citizens' initiative is neither manifestly abusive, frivolous or vexatious nor manifestly contrary to the values of the Union as set out in Article 2 TEU.

| (10) | The proposed citizens' initiative entitled ‘We are a welcoming Europe, let us help!’ should therefore be registered, |
| --- | --- |

(10)

The proposed citizens' initiative entitled ‘We are a welcoming Europe, let us help!’ should therefore be registered,

HAS ADOPTED THIS DECISION:

Article 1

The proposed citizens' initiative entitled ‘We are a welcoming Europe, let us help!’ is hereby registered.

Article 2

This Decision shall enter into force on 15 February 2018.

Article 3

This Decision is addressed to the organisers (members of the citizens' committee) of the proposed citizens' initiative entitled ‘We are a welcoming Europe, let us help!’, represented by Ms Isabelle CHOPIN and Ms Emma BONINO acting as contact persons.

Done at Brussels, 14 February 2018.

For the Commission

Frans TIMMERMANS

Vice-President

---

(1)  
  OJ L 65, 11.3.2011, p. 1.

1

---

| 22.2.2018 | EN | Official Journal of the European Union | L 49/66 |
| --- | --- | --- | --- |

22.2.2018

EN

Official Journal of the European Union

L 49/66

---

COMMISSION IMPLEMENTING DECISION (EU) 2018/263

of 20 February 2018

amending Implementing Decision 2014/709/EU concerning animal health control measures relating to African swine fever in certain Member States

(notified under document C(2018) 889)

(Text with EEA relevance)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Council Directive 89/662/EEC of 11 December 1989 concerning veterinary checks in intra-Community trade with a view to the completion of the internal market (1), and in particular Article 9(4) thereof,

Having regard to Council Directive 90/425/EEC of 26 June 1990 concerning veterinary and zootechnical checks applicable in intra-Community trade in certain live animals and products with a view to the completion of the internal market (2), and in particular Article 10(4) thereof,

Having regard to Council Directive 2002/99/EC of 16 December 2002 laying down the animal health rules governing the production, processing, distribution and introduction of products of animal origin for human consumption (3), and in particular Article 4(3) thereof,

Whereas:

| (1) | Commission Implementing Decision 2014/709/EU (4) lays down animal health control measures in relation to African swine fever in certain Member States, where there have been confirmed cases of that disease in domestic or feral pigs (the concerned Member States). The Annex to that Implementing Decision demarcates and lists certain areas of the concerned Member States in Parts I to IV thereof, differentiated by the level of risk based on the epidemiological situation as regards that disease. The control measures laid down in that Implementing Decision are aimed at mitigating the risks of the spread of that disease. |
| --- | --- |

(1)

Commission Implementing Decision 2014/709/EU (4) lays down animal health control measures in relation to African swine fever in certain Member States, where there have been confirmed cases of that disease in domestic or feral pigs (the concerned Member States). The Annex to that Implementing Decision demarcates and lists certain areas of the concerned Member States in Parts I to IV thereof, differentiated by the level of risk based on the epidemiological situation as regards that disease. The control measures laid down in that Implementing Decision are aimed at mitigating the risks of the spread of that disease.

| (2) | African swine fever is a viral disease of domestic and feral pigs that can have serious socioeconomic consequences. Movements of infected animals, contaminated pig products and the illegal disposal of carcasses are the most significant means of spreading that disease. It is extremely important to avoid the diffusion of African swine fever related to human activity. Accordingly, in order to ensure that information on the animal health control measures laid down in Implementing Decision 2014/709/EU, including restrictions on movements of pigs and pig products, are effectively brought to the attention of travellers, including travellers by road, Member States should ensure that passenger transport operators and postal services bring those animal health control measures to the attention of travellers moving from the areas listed in the Annex to that Implementing Decision. These messages should be tailored to the level of risk of introduction of the disease. In addition, coordinated action by the competent authorities of the concerned Member States should ensure that information disseminated through specific public awareness campaigns is fit for purpose. |
| --- | --- |

(2)

African swine fever is a viral disease of domestic and feral pigs that can have serious socioeconomic consequences. Movements of infected animals, contaminated pig products and the illegal disposal of carcasses are the most significant means of spreading that disease. It is extremely important to avoid the diffusion of African swine fever related to human activity. Accordingly, in order to ensure that information on the animal health control measures laid down in Implementing Decision 2014/709/EU, including restrictions on movements of pigs and pig products, are effectively brought to the attention of travellers, including travellers by road, Member States should ensure that passenger transport operators and postal services bring those animal health control measures to the attention of travellers moving from the areas listed in the Annex to that Implementing Decision. These messages should be tailored to the level of risk of introduction of the disease. In addition, coordinated action by the competent authorities of the concerned Member States should ensure that information disseminated through specific public awareness campaigns is fit for purpose.

| (3) | The risk of the spread of African swine fever in wildlife is linked to the natural slow spread of that disease among the wild boar populations, and also the risks linked to human activity, as demonstrated by the recent epidemiological evolution of that disease in the Union, and as documented by the European Food Safety Authority in the Scientific Opinion of the Panel on Animal Health and Welfare, published on 14 July 2015; in the Scientific Report Epidemiological analyses on African swine fever in the Baltic countries and Poland, published on 23 March 2017; and in the Scientific Report Epidemiological analyses of African swine fever in the Baltic States and Poland, published on 7 November 2017 (5). In order to take account of recent developments in the epidemiological evolution of African swine fever in the Union, and in order to combat the risks associated with the disease in a proactive manner, higher risk areas of a sufficient size should be demarcated for Poland and included in the lists in Part I and Part II of the Annex to Implementing Decision 2014/709/EU. |
| --- | --- |

(3)

The risk of the spread of African swine fever in wildlife is linked to the natural slow spread of that disease among the wild boar populations, and also the risks linked to human activity, as demonstrated by the recent epidemiological evolution of that disease in the Union, and as documented by the European Food Safety Authority in the Scientific Opinion of the Panel on Animal Health and Welfare, published on 14 July 2015; in the Scientific Report Epidemiological analyses on African swine fever in the Baltic countries and Poland, published on 23 March 2017; and in the Scientific Report Epidemiological analyses of African swine fever in the Baltic States and Poland, published on 7 November 2017 (5). In order to take account of recent developments in the epidemiological evolution of African swine fever in the Union, and in order to combat the risks associated with the disease in a proactive manner, higher risk areas of a sufficient size should be demarcated for Poland and included in the lists in Part I and Part II of the Annex to Implementing Decision 2014/709/EU.

| (4) | In addition, in order to focus the animal health control measures provided for in Implementing Decision 2014/709/EU, and to prevent the further spread of African swine fever, while at the same time preventing any unnecessary disturbance to trade within the Union, and also avoiding unjustified barriers to trade by third countries, the Union list of areas subject to the animal health control measures set out in the Annex to that Implementing Decision should be updated to take account of the changes in the epidemiological situation as regards that disease in Poland. |
| --- | --- |

(4)

In addition, in order to focus the animal health control measures provided for in Implementing Decision 2014/709/EU, and to prevent the further spread of African swine fever, while at the same time preventing any unnecessary disturbance to trade within the Union, and also avoiding unjustified barriers to trade by third countries, the Union list of areas subject to the animal health control measures set out in the Annex to that Implementing Decision should be updated to take account of the changes in the epidemiological situation as regards that disease in Poland.

| (5) | The Annex to Implementing Decision 2014/709/EU should therefore be amended accordingly. |
| --- | --- |

(5)

The Annex to Implementing Decision 2014/709/EU should therefore be amended accordingly.

| (6) | The measures provided for in this Decision are in accordance with the opinion of the Standing Committee on Plants, Animals, Food and Feed, |
| --- | --- |

(6)

The measures provided for in this Decision are in accordance with the opinion of the Standing Committee on Plants, Animals, Food and Feed,

HAS ADOPTED THIS DECISION:

Article 1

Implementing Decision 2014/709/EU is amended as follows:

| (1) | Article 15a, is replaced by the following:

  ‘Article 15a
  Information obligations of the Member States

  1.   The Member States concerned shall ensure that passenger transport operators, including airport and port operators, travel agencies (including hunting trip organisers) and postal services operators are required to draw the attention of their customers to the control measures laid down in this Decision, in particular by providing information on the main prohibitions laid down in this Decision to travellers moving from the areas listed in the Annex to this Decision and customers of postal services in an appropriate way.
  For that purpose, the Member States concerned shall organise and carry out regular public awareness campaigns to promote and spread information on the control measures laid down in this Decision.


  2.   All Member States shall ensure that on all major land infrastructure routes, such as international communication roads, and related road networks, appropriate information on the risks of the transmission of African swine fever and on the control measures laid down in this Decision are brought to the attention of all travellers in a visible and prominent manner.
  In particular, that information shall be presented in a way that is easily understood by travellers coming from, and going to, the areas listed in the Annex to this Decision or from third countries at risk of the spread of African swine fever.


  3.   The Member States concerned shall coordinate their efforts to ensure that the information referred to in paragraph 1 is effectively disseminated by the transport operators and postal services operators to specifically identified target audiences.’ |
| --- | --- |

(1)

Article 15a, is replaced by the following:

‘Article 15a

Information obligations of the Member States

1.   The Member States concerned shall ensure that passenger transport operators, including airport and port operators, travel agencies (including hunting trip organisers) and postal services operators are required to draw the attention of their customers to the control measures laid down in this Decision, in particular by providing information on the main prohibitions laid down in this Decision to travellers moving from the areas listed in the Annex to this Decision and customers of postal services in an appropriate way.

For that purpose, the Member States concerned shall organise and carry out regular public awareness campaigns to promote and spread information on the control measures laid down in this Decision.

2.   All Member States shall ensure that on all major land infrastructure routes, such as international communication roads, and related road networks, appropriate information on the risks of the transmission of African swine fever and on the control measures laid down in this Decision are brought to the attention of all travellers in a visible and prominent manner.

In particular, that information shall be presented in a way that is easily understood by travellers coming from, and going to, the areas listed in the Annex to this Decision or from third countries at risk of the spread of African swine fever.

3.   The Member States concerned shall coordinate their efforts to ensure that the information referred to in paragraph 1 is effectively disseminated by the transport operators and postal services operators to specifically identified target audiences.’

| (2) | The Annex to Implementing Decision 2014/709/EU is replaced by the text set out in the Annex to this Decision. |
| --- | --- |

(2)

The Annex to Implementing Decision 2014/709/EU is replaced by the text set out in the Annex to this Decision.

Article 2

This Decision is addressed to the Member States.

Done at Brussels, 20 February 2018.

For the Commission

Vytenis ANDRIUKAITIS

Member of the Commission

---

(1)  
  OJ L 395, 30.12.1989, p. 13.

1

(2)  
  OJ L 224, 18.8.1990, p. 29.

2

(3)  
  OJ L 18, 23.1.2003, p. 11.

3

(4)  Commission Implementing Decision 2014/709/EU of 9 October 2014 concerning animal health control measures relating to African swine fever in certain Member States and repealing Implementing Decision 2014/178/EU (OJ L 295, 11.10.2014, p. 63).

4

(5)  EFSA Journal 2015;13(7):4163 [92 pp.]; EFSA Journal 2017;15(3):4732 [73 pp.] and EFSA Journal 2017;15(11): 5068 [30 pp.].

5

---

ANNEX

The Annex to Implementing Decision 2014/709/EU is replaced by the following:

‘ANNEX

PART I

1.   The Czech Republic

The following areas in the Czech Republic:

| — | okres Uherské Hradiště, |
| --- | --- |

—

okres Uherské Hradiště,

| — | okres Kroměříž, |
| --- | --- |

—

okres Kroměříž,

| — | okres Vsetín, |
| --- | --- |

—

okres Vsetín,

| — | katastrální území obcí v okrese Zlín:






  — | Bělov, |
| --- | --- | --- |

—

katastrální území obcí v okrese Zlín:

—

Bělov,

| — | Biskupice u Luhačovic, |
| --- | --- |

—

Biskupice u Luhačovic,

| — | Bohuslavice nad Vláří, |
| --- | --- |

—

Bohuslavice nad Vláří,

| — | Bohuslavice u Zlína, |
| --- | --- |

—

Bohuslavice u Zlína,

| — | Brumov, |
| --- | --- |

—

Brumov,

| — | Březůvky, |
| --- | --- |

—

Březůvky,

| — | Bylnice, |
| --- | --- |

—

Bylnice,

| — | Divnice, |
| --- | --- |

—

Divnice,

| — | Dobrkovice, |
| --- | --- |

—

Dobrkovice,

| — | Dolní Lhota u Luhačovic, |
| --- | --- |

—

Dolní Lhota u Luhačovic,

| — | Doubravy, |
| --- | --- |

—

Doubravy,

| — | Drnovice u Valašských Klobouk, |
| --- | --- |

—

Drnovice u Valašských Klobouk,

| — | Halenkovice, |
| --- | --- |

—

Halenkovice,

| — | Haluzice, |
| --- | --- |

—

Haluzice,

| — | Horní Lhota u Luhačovic, |
| --- | --- |

—

Horní Lhota u Luhačovic,

| — | Hrádek na Vlárské dráze, |
| --- | --- |

—

Hrádek na Vlárské dráze,

| — | Hřivínův Újezd, |
| --- | --- |

—

Hřivínův Újezd,

| — | Jestřabí nad Vláří, |
| --- | --- |

—

Jestřabí nad Vláří,

| — | Kaňovice u Luhačovic, |
| --- | --- |

—

Kaňovice u Luhačovic,

| — | Karlovice u Zlína, |
| --- | --- |

—

Karlovice u Zlína,

| — | Kelníky, |
| --- | --- |

—

Kelníky,

| — | Kladná-Žilín, |
| --- | --- |

—

Kladná-Žilín,

| — | Kochavec, |
| --- | --- |

—

Kochavec,

| — | Komárov u Napajedel, |
| --- | --- |

—

Komárov u Napajedel,

| — | Křekov, |
| --- | --- |

—

Křekov,

| — | Kvítkovice u Otrokovic, |
| --- | --- |

—

Kvítkovice u Otrokovic,

| — | Lhota u Zlína, |
| --- | --- |

—

Lhota u Zlína,

| — | Lipina, |
| --- | --- |

—

Lipina,

| — | Lipová u Slavičína, |
| --- | --- |

—

Lipová u Slavičína,

| — | Loučka I, |
| --- | --- |

—

Loučka I,

| — | Loučka II, |
| --- | --- |

—

Loučka II,

| — | Ludkovice, |
| --- | --- |

—

Ludkovice,

| — | Luhačovice, |
| --- | --- |

—

Luhačovice,

| — | Machová, |
| --- | --- |

—

Machová,

| — | Mirošov u Valašských Klobouk, |
| --- | --- |

—

Mirošov u Valašských Klobouk,

| — | Mysločovice, |
| --- | --- |

—

Mysločovice,

| — | Napajedla, |
| --- | --- |

—

Napajedla,

| — | Návojná, |
| --- | --- |

—

Návojná,

| — | Nedašov, |
| --- | --- |

—

Nedašov,

| — | Nedašova Lhota, |
| --- | --- |

—

Nedašova Lhota,

| — | Nevšová, |
| --- | --- |

—

Nevšová,

| — | Oldřichovice u Napajedel, |
| --- | --- |

—

Oldřichovice u Napajedel,

| — | Otrokovice, |
| --- | --- |

—

Otrokovice,

| — | Petrůvka u Slavičína, |
| --- | --- |

—

Petrůvka u Slavičína,

| — | Podhradí u Luhačovic, |
| --- | --- |

—

Podhradí u Luhačovic,

| — | Pohořelice u Napajedel, |
| --- | --- |

—

Pohořelice u Napajedel,

| — | Polichno, |
| --- | --- |

—

Polichno,

| — | Popov nad Vláří, |
| --- | --- |

—

Popov nad Vláří,

| — | Poteč, |
| --- | --- |

—

Poteč,

| — | Pozlovice, |
| --- | --- |

—

Pozlovice,

| — | Provodov na Moravě, |
| --- | --- |

—

Provodov na Moravě,

| — | Rokytnice u Slavičína, |
| --- | --- |

—

Rokytnice u Slavičína,

| — | Rudimov, |
| --- | --- |

—

Rudimov,

| — | Řetechov, |
| --- | --- |

—

Řetechov,

| — | Salaš u Zlína, |
| --- | --- |

—

Salaš u Zlína,

| — | Sazovice, |
| --- | --- |

—

Sazovice,

| — | Sehradice, |
| --- | --- |

—

Sehradice,

| — | Sidonie, |
| --- | --- |

—

Sidonie,

| — | Slavičín, |
| --- | --- |

—

Slavičín,

| — | Slopné, |
| --- | --- |

—

Slopné,

| — | Smolina, |
| --- | --- |

—

Smolina,

| — | Spytihněv, |
| --- | --- |

—

Spytihněv,

| — | Svatý Štěpán, |
| --- | --- |

—

Svatý Štěpán,

| — | Šanov, |
| --- | --- |

—

Šanov,

| — | Šarovy, |
| --- | --- |

—

Šarovy,

| — | Štítná nad Vláří, |
| --- | --- |

—

Štítná nad Vláří,

| — | Tichov, |
| --- | --- |

—

Tichov,

| — | Tlumačov na Moravě, |
| --- | --- |

—

Tlumačov na Moravě,

| — | Újezd u Valašských Klobouk, |
| --- | --- |

—

Újezd u Valašských Klobouk,

| — | Valašské Klobouky, |
| --- | --- |

—

Valašské Klobouky,

| — | Velký Ořechov, |
| --- | --- |

—

Velký Ořechov,

| — | Vlachova Lhota, |
| --- | --- |

—

Vlachova Lhota,

| — | Vlachovice, |
| --- | --- |

—

Vlachovice,

| — | Vrbětice, |
| --- | --- |

—

Vrbětice,

| — | Vysoké Pole, |
| --- | --- |

—

Vysoké Pole,

| — | Žlutava. |
| --- | --- |

—

Žlutava.

2.   Estonia

The following areas in Estonia:

| — | Hiiu maakond. |
| --- | --- |

—

Hiiu maakond.

3.   Latvia

The following areas in Latvia:

| — | Aizputes novads, |
| --- | --- |

—

Aizputes novads,

| — | Alsungas novads, |
| --- | --- |

—

Alsungas novads,

| — | Auces novada Vecauces un Ukru pagasts, Auces pilsēta, |
| --- | --- |

—

Auces novada Vecauces un Ukru pagasts, Auces pilsēta,

| — | Jelgavas novada Platones, Vircavas, Jaunsvirlaukas, Vilces, Lielplatones, Elejas un Sesavas pagasts, |
| --- | --- |

—

Jelgavas novada Platones, Vircavas, Jaunsvirlaukas, Vilces, Lielplatones, Elejas un Sesavas pagasts,

| — | Kuldīgas novada Gudenieku, Turlavas, Snēpeles un Laidu pagasts, |
| --- | --- |

—

Kuldīgas novada Gudenieku, Turlavas, Snēpeles un Laidu pagasts,

| — | Pāvilostas novada Sakas pagasts un Pāvilostas pilsēta, |
| --- | --- |

—

Pāvilostas novada Sakas pagasts un Pāvilostas pilsēta,

| — | republikas pilsēta Jelgava, |
| --- | --- |

—

republikas pilsēta Jelgava,

| — | Saldus novada Ezeres, Kursīšu, Novadnieku, Pampāļu, Saldus, Zaņas un Zirņu pagasts, Saldus pilsēta, |
| --- | --- |

—

Saldus novada Ezeres, Kursīšu, Novadnieku, Pampāļu, Saldus, Zaņas un Zirņu pagasts, Saldus pilsēta,

| — | Skrundas novads, |
| --- | --- |

—

Skrundas novads,

| — | Stopiņu novada daļa, kas atrodas uz rietumiem no autoceļa V36, P4 un P5, Acones ielas, Dauguļupes ielas un Dauguļupītes, |
| --- | --- |

—

Stopiņu novada daļa, kas atrodas uz rietumiem no autoceļa V36, P4 un P5, Acones ielas, Dauguļupes ielas un Dauguļupītes,

| — | Tērvetes novads, |
| --- | --- |

—

Tērvetes novads,

| — | Ventspils novada Jūrkalnes pagasts. |
| --- | --- |

—

Ventspils novada Jūrkalnes pagasts.

4.   Lithuania

The following areas in Lithuania:

| — | Akmenės rajono savivaldybė: Kruopių ir Papilės seniūnijos, |
| --- | --- |

—

Akmenės rajono savivaldybė: Kruopių ir Papilės seniūnijos,

| — | Joniškio rajono savivaldybė, |
| --- | --- |

—

Joniškio rajono savivaldybė,

| — | Jurbarko rajono savivaldybė: Eržvilko, Smalininkų ir Viešvilės seniūnijos, |
| --- | --- |

—

Jurbarko rajono savivaldybė: Eržvilko, Smalininkų ir Viešvilės seniūnijos,

| — | Kalvarijos savivaldybė, |
| --- | --- |

—

Kalvarijos savivaldybė,

| — | Kazlų Rūdos savivaldybė, |
| --- | --- |

—

Kazlų Rūdos savivaldybė,

| — | Kelmės rajono savivaldybė, |
| --- | --- |

—

Kelmės rajono savivaldybė,

| — | Marijampolės savivaldybė, |
| --- | --- |

—

Marijampolės savivaldybė,

| — | Mažeikių rajono savivaldybė: Sedos, Šerkšnėnų, Tirkšlių ir Židikų seniūnijos, |
| --- | --- |

—

Mažeikių rajono savivaldybė: Sedos, Šerkšnėnų, Tirkšlių ir Židikų seniūnijos,

| — | Pagėgių savivaldybė, |
| --- | --- |

—

Pagėgių savivaldybė,

| — | Raseinių rajono savivaldybė: Girkalnio ir Kalnūjų seniūnijos dalis į šiaurę nuo kelio Nr A1, Nemakščių, Paliepių, Raseinių, Raseinių miesto ir Viduklės seniūnijos, |
| --- | --- |

—

Raseinių rajono savivaldybė: Girkalnio ir Kalnūjų seniūnijos dalis į šiaurę nuo kelio Nr A1, Nemakščių, Paliepių, Raseinių, Raseinių miesto ir Viduklės seniūnijos,

| — | Šakių rajono savivaldybė, |
| --- | --- |

—

Šakių rajono savivaldybė,

| — | Šiaulių miesto savivaldybė, |
| --- | --- |

—

Šiaulių miesto savivaldybė,

| — | Šiaulių rajono savivaldybė, |
| --- | --- |

—

Šiaulių rajono savivaldybė,

| — | Tauragės rajono savivaldybė, |
| --- | --- |

—

Tauragės rajono savivaldybė,

| — | Telšių rajono savivaldybė: Nevarėnų ir Tryškių seniūnijos. |
| --- | --- |

—

Telšių rajono savivaldybė: Nevarėnų ir Tryškių seniūnijos.

5.   Poland

The following areas in Poland:

| w województwie warmińsko-mazurskim:





  gmina Stare Juchy w powiecie ełckim, |
| --- |

w województwie warmińsko-mazurskim:

gmina Stare Juchy w powiecie ełckim,

| gmina Dubeninki w powiecie gołdapskim, |
| --- |

gmina Dubeninki w powiecie gołdapskim,

| gmina Ruciane – Nida i część gminy Pisz położona na południe od linii wyznaczonej przez drogę nr 58 oraz miasto Pisz w powiecie piskim, |
| --- |

gmina Ruciane – Nida i część gminy Pisz położona na południe od linii wyznaczonej przez drogę nr 58 oraz miasto Pisz w powiecie piskim,

| gminy Giżycko z miastem Giżycko, Kruklanki, Miłki, Wydminy i Ryn w powiecie giżyckim, |
| --- |

gminy Giżycko z miastem Giżycko, Kruklanki, Miłki, Wydminy i Ryn w powiecie giżyckim,

| gmina Mikołajki w powiecie mrągowskim, |
| --- |

gmina Mikołajki w powiecie mrągowskim,

| gminy Kowale Oleckie, Olecko, Świętajno i część gminy Wieliczki położona na północ od linii wyznaczonej przez drogę nr 655 w powiecie oleckim, |
| --- |

gminy Kowale Oleckie, Olecko, Świętajno i część gminy Wieliczki położona na północ od linii wyznaczonej przez drogę nr 655 w powiecie oleckim,

| gminy Bartoszyce z miastem Bartoszyce i Sępopol w powiecie bartoszyckim, |
| --- |

gminy Bartoszyce z miastem Bartoszyce i Sępopol w powiecie bartoszyckim,

| gminy Lidzbark Warmiński z miastem Lidzbark Warmiński, Lubomino, Orneta i Kiwity w powiecie lidzbarskim, |
| --- |

gminy Lidzbark Warmiński z miastem Lidzbark Warmiński, Lubomino, Orneta i Kiwity w powiecie lidzbarskim,

| część gminy Wilczęta położona na południe od linii wyznaczonej przez drogę nr 509 w powiecie braniewskim, |
| --- |

część gminy Wilczęta położona na południe od linii wyznaczonej przez drogę nr 509 w powiecie braniewskim,

| gminy Godkowo, Milejewo, Młynary, Pasłęk i Tolkmicko w powiecie elbląskim, |
| --- |

gminy Godkowo, Milejewo, Młynary, Pasłęk i Tolkmicko w powiecie elbląskim,

| powiat miejski Elbląg. |
| --- |

powiat miejski Elbląg.

| w województwie podlaskim:





  gmina Brańsk z miastem Brańsk, gminy Rudka, Wyszki, część gminy Bielsk Podlaski położona na zachód od linii wyznaczonej przez drogę nr 19 (w kierunku północnym od miasta Bielsk Podlaski) i przedłużonej przez wschodnią granicę miasta Bielsk Podlaski i drogę nr 66 (w kierunku południowym od miasta Bielsk Podlaski) i miasto Bielsk Podlaski w powiecie bielskim, |
| --- |

w województwie podlaskim:

gmina Brańsk z miastem Brańsk, gminy Rudka, Wyszki, część gminy Bielsk Podlaski położona na zachód od linii wyznaczonej przez drogę nr 19 (w kierunku północnym od miasta Bielsk Podlaski) i przedłużonej przez wschodnią granicę miasta Bielsk Podlaski i drogę nr 66 (w kierunku południowym od miasta Bielsk Podlaski) i miasto Bielsk Podlaski w powiecie bielskim,

| gminy Dziadkowice, Grodzisk i Perlejewo w powiecie siemiatyckim, |
| --- |

gminy Dziadkowice, Grodzisk i Perlejewo w powiecie siemiatyckim,

| gminy Kolno z miastem Kolno, Mały Płock i Turośl w powiecie kolneńskim, |
| --- |

gminy Kolno z miastem Kolno, Mały Płock i Turośl w powiecie kolneńskim,

| gminy Juchnowiec Kościelny, Suraż i Poświętne w powiecie białostockim, |
| --- |

gminy Juchnowiec Kościelny, Suraż i Poświętne w powiecie białostockim,

| powiat zambrowski, |
| --- |

powiat zambrowski,

| gminy Bakałarzewo, Wiżajny, Przerośl, Filipów, część gminy Raczki położona na północ od linii wyznaczonej przez drogę 655 i część gminy Suwałki położona na zachód od linii wyznaczonej przez drogę nr 655 w powiecie suwalskim, |
| --- |

gminy Bakałarzewo, Wiżajny, Przerośl, Filipów, część gminy Raczki położona na północ od linii wyznaczonej przez drogę 655 i część gminy Suwałki położona na zachód od linii wyznaczonej przez drogę nr 655 w powiecie suwalskim,

| gminy Kulesze Kościelne, Nowe Piekuty, Szepietowo, Klukowo, Ciechanowiec, Wysokie Mazowieckie z miastem Wysokie Mazowieckie, Czyżew w powiecie wysokomazowieckim, |
| --- |

gminy Kulesze Kościelne, Nowe Piekuty, Szepietowo, Klukowo, Ciechanowiec, Wysokie Mazowieckie z miastem Wysokie Mazowieckie, Czyżew w powiecie wysokomazowieckim,

| gminy Łomża, Miastkowo, Nowogród, Piątnica, Śniadowo i Zbójna w powiecie łomżyńskim, |
| --- |

gminy Łomża, Miastkowo, Nowogród, Piątnica, Śniadowo i Zbójna w powiecie łomżyńskim,

| powiat miejski Łomża. |
| --- |

powiat miejski Łomża.

| w województwie mazowieckim:





  gminy Ceranów, Kosów Lacki, Sabnie, Sterdyń, część gminy Bielany położona na zachód od linii wyznaczonej przez drogę nr 63 i część gminy wiejskiej Sokołów Podlaski położona na zachód od linii wyznaczonej przez drogę nr 63 w powiecie sokołowskim, |
| --- |

w województwie mazowieckim:

gminy Ceranów, Kosów Lacki, Sabnie, Sterdyń, część gminy Bielany położona na zachód od linii wyznaczonej przez drogę nr 63 i część gminy wiejskiej Sokołów Podlaski położona na zachód od linii wyznaczonej przez drogę nr 63 w powiecie sokołowskim,

| gminy Grębków, Liw, Miedzna i miasto Węgrów w powiecie węgrowskim, |
| --- |

gminy Grębków, Liw, Miedzna i miasto Węgrów w powiecie węgrowskim,

| gminy Kotuń, Mokobody, Wodynie, Skórzec i Siedlce w powiecie siedleckim, |
| --- |

gminy Kotuń, Mokobody, Wodynie, Skórzec i Siedlce w powiecie siedleckim,

| powiat miejski Siedlce, |
| --- |

powiat miejski Siedlce,

| gminy Rzekuń, Troszyn, Czerwin i Goworowo w powiecie ostrołęckim, |
| --- |

gminy Rzekuń, Troszyn, Czerwin i Goworowo w powiecie ostrołęckim,

| powiat ostrowski, |
| --- |

powiat ostrowski,

| gminy Mała Wieś i Wyszogród w powiecie płockim, |
| --- |

gminy Mała Wieś i Wyszogród w powiecie płockim,

| gminy Czerwińsk nad Wisłą, Joniec, Naruszewo i Załuski w powiecie płońskim, |
| --- |

gminy Czerwińsk nad Wisłą, Joniec, Naruszewo i Załuski w powiecie płońskim,

| gmina Nasielsk w powiecie nowodworskim, |
| --- |

gmina Nasielsk w powiecie nowodworskim,

| gminy Obryte, Winnica, Zatory i Pułtusk z miastem Pułtusk w powiecie pułtuskim, |
| --- |

gminy Obryte, Winnica, Zatory i Pułtusk z miastem Pułtusk w powiecie pułtuskim,

| gmina Somianka w powiecie wyszkowskim, |
| --- |

gmina Somianka w powiecie wyszkowskim,

| gminy Dąbrówka, Klembów, Poświętne i Tłuszcz w powiecie wołomińskim, |
| --- |

gminy Dąbrówka, Klembów, Poświętne i Tłuszcz w powiecie wołomińskim,

| gminy Mińsk Mazowiecki z miastem Mińsk Mazowiecki, Mrozy, Cegłów, Dębe Wielkie, Halinów, Kałuszyn, Siennica, Stanisławów, i Latowicz w powiecie mińskim, |
| --- |

gminy Mińsk Mazowiecki z miastem Mińsk Mazowiecki, Mrozy, Cegłów, Dębe Wielkie, Halinów, Kałuszyn, Siennica, Stanisławów, i Latowicz w powiecie mińskim,

| gminy Borowie, Garwolin z miastem Garwolin, Miastków Kościelny, Parysów, Pilawa i Wilga w powiecie garwolińskim, |
| --- |

gminy Borowie, Garwolin z miastem Garwolin, Miastków Kościelny, Parysów, Pilawa i Wilga w powiecie garwolińskim,

| gminy Lesznowola i Tarczyn w powiecie piaseczyńskim, |
| --- |

gminy Lesznowola i Tarczyn w powiecie piaseczyńskim,

| gminy Grójec, Jasieniec i Warka w powiecie grójeckim, |
| --- |

gminy Grójec, Jasieniec i Warka w powiecie grójeckim,

| gminy Grabów nad Pilicą i Magnuszew w powiecie kozienickim, |
| --- |

gminy Grabów nad Pilicą i Magnuszew w powiecie kozienickim,

| gminy Brwinów, Michałowice, Nadarzyn, Piastów, Pruszków i Raszyn w powiecie pruszkowskim, |
| --- |

gminy Brwinów, Michałowice, Nadarzyn, Piastów, Pruszków i Raszyn w powiecie pruszkowskim,

| gminy Baranów, Grodzisk Mazowiecki, Milanówek i Podkowa Leśna w powiecie grodziskim, |
| --- |

gminy Baranów, Grodzisk Mazowiecki, Milanówek i Podkowa Leśna w powiecie grodziskim,

| gminy Iłów, Młodzieszyn, Nowa Sucha, Rybno, Sochaczew z miastem Sochaczew i Teresin w powiecie sochaczewskim. |
| --- |

gminy Iłów, Młodzieszyn, Nowa Sucha, Rybno, Sochaczew z miastem Sochaczew i Teresin w powiecie sochaczewskim.

| w województwie lubelskim:





  gminy Cyców, Ludwin, Łęczna, Milejów, Puchaczów i Spiczyn w powiecie łęczyńskim, |
| --- |

w województwie lubelskim:

gminy Cyców, Ludwin, Łęczna, Milejów, Puchaczów i Spiczyn w powiecie łęczyńskim,

| gmina Borki w powiecie radzyńskim, |
| --- |

gmina Borki w powiecie radzyńskim,

| gmina Adamów, Krzywda, Serokomla, Wojcieszków i Wola Mysłowska w powiecie łukowskim, |
| --- |

gmina Adamów, Krzywda, Serokomla, Wojcieszków i Wola Mysłowska w powiecie łukowskim,

| gminy Dorohusk, Dubienka, Kamień, Chełm, Siedliszcze, Rejowiec, Rejowiec Fabryczny z miastem Rejowiec Fabryczny i Żmudź w powiecie chełmskim, |
| --- |

gminy Dorohusk, Dubienka, Kamień, Chełm, Siedliszcze, Rejowiec, Rejowiec Fabryczny z miastem Rejowiec Fabryczny i Żmudź w powiecie chełmskim,

| powiat miejski Chełm, |
| --- |

powiat miejski Chełm,

| gminy Firlej, Kock, Kamionka, Michów, Lubartów z miastem Lubartów, Serniki, Ostrów Lubelski i Uścimów w powiecie lubartowskim. |
| --- |

gminy Firlej, Kock, Kamionka, Michów, Lubartów z miastem Lubartów, Serniki, Ostrów Lubelski i Uścimów w powiecie lubartowskim.

PART II

1.   The Czech Republic

The following areas in the Czech Republic:

| — | katastrální území obcí v okrese Zlín:






  — | Bratřejov u Vizovic, |
| --- | --- | --- |

—

katastrální území obcí v okrese Zlín:

—

Bratřejov u Vizovic,

| — | Březnice u Zlína, |
| --- | --- |

—

Březnice u Zlína,

| — | Březová u Zlína, |
| --- | --- |

—

Březová u Zlína,

| — | Dešná u Zlína, |
| --- | --- |

—

Dešná u Zlína,

| — | Dolní Ves, |
| --- | --- |

—

Dolní Ves,

| — | Držková, |
| --- | --- |

—

Držková,

| — | Fryšták, |
| --- | --- |

—

Fryšták,

| — | Horní Ves u Fryštáku, |
| --- | --- |

—

Horní Ves u Fryštáku,

| — | Hostišová, |
| --- | --- |

—

Hostišová,

| — | Hrobice na Moravě, |
| --- | --- |

—

Hrobice na Moravě,

| — | Hvozdná, |
| --- | --- |

—

Hvozdná,

| — | Chrastěšov, |
| --- | --- |

—

Chrastěšov,

| — | Jaroslavice u Zlína, |
| --- | --- |

—

Jaroslavice u Zlína,

| — | Jasenná na Moravě, |
| --- | --- |

—

Jasenná na Moravě,

| — | Kašava, |
| --- | --- |

—

Kašava,

| — | Klečůvka, |
| --- | --- |

—

Klečůvka,

| — | Kostelec u Zlína, |
| --- | --- |

—

Kostelec u Zlína,

| — | Kudlov, |
| --- | --- |

—

Kudlov,

| — | Lhotka u Zlína, |
| --- | --- |

—

Lhotka u Zlína,

| — | Lhotsko, |
| --- | --- |

—

Lhotsko,

| — | Lípa nad Dřevnicí, |
| --- | --- |

—

Lípa nad Dřevnicí,

| — | Louky nad Dřevnicí, |
| --- | --- |

—

Louky nad Dřevnicí,

| — | Lukov u Zlína, |
| --- | --- |

—

Lukov u Zlína,

| — | Lukoveček, |
| --- | --- |

—

Lukoveček,

| — | Lutonina, |
| --- | --- |

—

Lutonina,

| — | Lužkovice, |
| --- | --- |

—

Lužkovice,

| — | Malenovice u Zlína, |
| --- | --- |

—

Malenovice u Zlína,

| — | Mladcová, |
| --- | --- |

—

Mladcová,

| — | Neubuz, |
| --- | --- |

—

Neubuz,

| — | Ostrata, |
| --- | --- |

—

Ostrata,

| — | Podkopná Lhota, |
| --- | --- |

—

Podkopná Lhota,

| — | Prštné, |
| --- | --- |

—

Prštné,

| — | Příluky u Zlína, |
| --- | --- |

—

Příluky u Zlína,

| — | Racková, |
| --- | --- |

—

Racková,

| — | Raková, |
| --- | --- |

—

Raková,

| — | Slušovice, |
| --- | --- |

—

Slušovice,

| — | Štípa, |
| --- | --- |

—

Štípa,

| — | Tečovice, |
| --- | --- |

—

Tečovice,

| — | Trnava u Zlína, |
| --- | --- |

—

Trnava u Zlína,

| — | Ublo, |
| --- | --- |

—

Ublo,

| — | Velíková, |
| --- | --- |

—

Velíková,

| — | Veselá u Zlína, |
| --- | --- |

—

Veselá u Zlína,

| — | Vítová, |
| --- | --- |

—

Vítová,

| — | Vizovice, |
| --- | --- |

—

Vizovice,

| — | Vlčková, |
| --- | --- |

—

Vlčková,

| — | Všemina, |
| --- | --- |

—

Všemina,

| — | Zádveřice, |
| --- | --- |

—

Zádveřice,

| — | Zlín, |
| --- | --- |

—

Zlín,

| — | Želechovice nad Dřevnicí. |
| --- | --- |

—

Želechovice nad Dřevnicí.

2.   Estonia

The following areas in Estonia:

| — | Haapsalu linn, |
| --- | --- |

—

Haapsalu linn,

| — | Hanila vald, |
| --- | --- |

—

Hanila vald,

| — | Harju maakond, |
| --- | --- |

—

Harju maakond,

| — | IDA-Viru maakond, |
| --- | --- |

—

IDA-Viru maakond,

| — | Jõgeva maakond, |
| --- | --- |

—

Jõgeva maakond,

| — | Järva maakond, |
| --- | --- |

—

Järva maakond,

| — | Kihelkonna vald, |
| --- | --- |

—

Kihelkonna vald,

| — | Kullamaa vald, |
| --- | --- |

—

Kullamaa vald,

| — | Kuressaare linn, |
| --- | --- |

—

Kuressaare linn,

| — | Lääne-Viru maakond, |
| --- | --- |

—

Lääne-Viru maakond,

| — | Lääne-Saare vald, |
| --- | --- |

—

Lääne-Saare vald,

| — | osa Leisi vallast, mis asub lääne pool Kuressaare-Leisi maanteest (maantee nr 79), |
| --- | --- |

—

osa Leisi vallast, mis asub lääne pool Kuressaare-Leisi maanteest (maantee nr 79),

| — | Lihula vald, |
| --- | --- |

—

Lihula vald,

| — | Martna vald, |
| --- | --- |

—

Martna vald,

| — | Muhu vald, |
| --- | --- |

—

Muhu vald,

| — | Mustjala vald, |
| --- | --- |

—

Mustjala vald,

| — | Osa Noarootsi vallast, mis asub põhja pool maanteest nr 230, |
| --- | --- |

—

Osa Noarootsi vallast, mis asub põhja pool maanteest nr 230,

| — | Nõva vald, |
| --- | --- |

—

Nõva vald,

| — | Pihtla vald, |
| --- | --- |

—

Pihtla vald,

| — | Pärnu maakond (välja arvatud Audru ja Tõstamaa vald), |
| --- | --- |

—

Pärnu maakond (välja arvatud Audru ja Tõstamaa vald),

| — | Põlva maakond, |
| --- | --- |

—

Põlva maakond,

| — | Rapla maakond, |
| --- | --- |

—

Rapla maakond,

| — | Osa Ridala vallast, mis asub edela pool maanteest nr 31, |
| --- | --- |

—

Osa Ridala vallast, mis asub edela pool maanteest nr 31,

| — | Ruhnu vald, |
| --- | --- |

—

Ruhnu vald,

| — | Salme vald, |
| --- | --- |

—

Salme vald,

| — | Tartu maakond, |
| --- | --- |

—

Tartu maakond,

| — | Torgu vald, |
| --- | --- |

—

Torgu vald,

| — | Valga maakond, |
| --- | --- |

—

Valga maakond,

| — | Viljandi maakond, |
| --- | --- |

—

Viljandi maakond,

| — | Vormsi vald, |
| --- | --- |

—

Vormsi vald,

| — | Võru maakond. |
| --- | --- |

—

Võru maakond.

3.   Latvia

The following areas in Latvia:

| — | Ādažu novads, |
| --- | --- |

—

Ādažu novads,

| — | Aglonas novada Kastuļinas, Grāveru un Šķeltovas pagasts, |
| --- | --- |

—

Aglonas novada Kastuļinas, Grāveru un Šķeltovas pagasts,

| — | Aizkraukles novads, |
| --- | --- |

—

Aizkraukles novads,

| — | Aknīstes novads, |
| --- | --- |

—

Aknīstes novads,

| — | Alojas novads, |
| --- | --- |

—

Alojas novads,

| — | Alūksnes novads, |
| --- | --- |

—

Alūksnes novads,

| — | Amatas novads, |
| --- | --- |

—

Amatas novads,

| — | Apes novads, |
| --- | --- |

—

Apes novads,

| — | Auces novada Bēnes, Lielauces un Īles pagasts, |
| --- | --- |

—

Auces novada Bēnes, Lielauces un Īles pagasts,

| — | Babītes novads, |
| --- | --- |

—

Babītes novads,

| — | Baldones novads, |
| --- | --- |

—

Baldones novads,

| — | Baltinavas novads, |
| --- | --- |

—

Baltinavas novads,

| — | Balvu novads, |
| --- | --- |

—

Balvu novads,

| — | Bauskas novads, |
| --- | --- |

—

Bauskas novads,

| — | Beverīnas novads, |
| --- | --- |

—

Beverīnas novads,

| — | Brocēnu novads, |
| --- | --- |

—

Brocēnu novads,

| — | Burtnieku novads, |
| --- | --- |

—

Burtnieku novads,

| — | Carnikavas novads, |
| --- | --- |

—

Carnikavas novads,

| — | Cēsu novads, |
| --- | --- |

—

Cēsu novads,

| — | Cesvaines novads, |
| --- | --- |

—

Cesvaines novads,

| — | Ciblas novads, |
| --- | --- |

—

Ciblas novads,

| — | Dagdas novads, |
| --- | --- |

—

Dagdas novads,

| — | Daugavpils novada Vaboles, Līksnas, Sventes, Medumu, Demenas, Kalkūnes, Laucesas, Tabores, Maļinovas, Ambeļu, Biķernieku, Naujenes, Vecsalienas, Salienas un Skrudalienas pagasts, |
| --- | --- |

—

Daugavpils novada Vaboles, Līksnas, Sventes, Medumu, Demenas, Kalkūnes, Laucesas, Tabores, Maļinovas, Ambeļu, Biķernieku, Naujenes, Vecsalienas, Salienas un Skrudalienas pagasts,

| — | Dobeles novads, |
| --- | --- |

—

Dobeles novads,

| — | Dundagas novads, |
| --- | --- |

—

Dundagas novads,

| — | Engures novads, |
| --- | --- |

—

Engures novads,

| — | Ērgļu novads, |
| --- | --- |

—

Ērgļu novads,

| — | Garkalnes novada daļa, kas atrodas uz ziemeļrietumiem no autoceļa A2, |
| --- | --- |

—

Garkalnes novada daļa, kas atrodas uz ziemeļrietumiem no autoceļa A2,

| — | Gulbenes novads, |
| --- | --- |

—

Gulbenes novads,

| — | Iecavas novads, |
| --- | --- |

—

Iecavas novads,

| — | Ikšķiles novada Tīnūžu pagasta daļa, kas atrodas uz dienvidaustrumiem no autoceļa P10, Ikšķiles pilsēta, |
| --- | --- |

—

Ikšķiles novada Tīnūžu pagasta daļa, kas atrodas uz dienvidaustrumiem no autoceļa P10, Ikšķiles pilsēta,

| — | Ilūkstes novads, |
| --- | --- |

—

Ilūkstes novads,

| — | Jaunjelgavas novads, |
| --- | --- |

—

Jaunjelgavas novads,

| — | Jaunpiebalgas novads, |
| --- | --- |

—

Jaunpiebalgas novads,

| — | Jaunpils novads, |
| --- | --- |

—

Jaunpils novads,

| — | Jēkabpils novads, |
| --- | --- |

—

Jēkabpils novads,

| — | Jelgavas novada Glūdas, Zaļenieku, Svētes, Kalnciema, Līvbērzes un Valgundes pagasts, |
| --- | --- |

—

Jelgavas novada Glūdas, Zaļenieku, Svētes, Kalnciema, Līvbērzes un Valgundes pagasts,

| — | Kandavas novads, |
| --- | --- |

—

Kandavas novads,

| — | Kārsavas novads, |
| --- | --- |

—

Kārsavas novads,

| — | Ķeguma novads, |
| --- | --- |

—

Ķeguma novads,

| — | Ķekavas novads, |
| --- | --- |

—

Ķekavas novads,

| — | Kocēnu novads, |
| --- | --- |

—

Kocēnu novads,

| — | Kokneses novads, |
| --- | --- |

—

Kokneses novads,

| — | Krāslavas novads, |
| --- | --- |

—

Krāslavas novads,

| — | Krimuldas novada Krimuldas pagasta daļa, kas atrodas uz ziemeļaustrumiem no autoceļa V89 un V81, un Lēdurgas pagasta daļa, kas atrodas uz ziemeļaustrumiem no autoceļa V81 un V128, |
| --- | --- |

—

Krimuldas novada Krimuldas pagasta daļa, kas atrodas uz ziemeļaustrumiem no autoceļa V89 un V81, un Lēdurgas pagasta daļa, kas atrodas uz ziemeļaustrumiem no autoceļa V81 un V128,

| — | Krustpils novads, |
| --- | --- |

—

Krustpils novads,

| — | Kuldīgas novada Ēdoles, Īvandes, Kurmāles, Padures, Pelču, Rumbas, Rendas, Kalibes un Vārmes pagasts, Kuldīgas pilsēta, |
| --- | --- |

—

Kuldīgas novada Ēdoles, Īvandes, Kurmāles, Padures, Pelču, Rumbas, Rendas, Kalibes un Vārmes pagasts, Kuldīgas pilsēta,

| — | Lielvārdes novads, |
| --- | --- |

—

Lielvārdes novads,

| — | Līgatnes novads, |
| --- | --- |

—

Līgatnes novads,

| — | Limbažu novada Skultes, Limbažu, Umurgas, Katvaru, Pāles un Viļķenes pagasts, Limbažu pilsēta, |
| --- | --- |

—

Limbažu novada Skultes, Limbažu, Umurgas, Katvaru, Pāles un Viļķenes pagasts, Limbažu pilsēta,

| — | Līvānu novads, |
| --- | --- |

—

Līvānu novads,

| — | Lubānas novads, |
| --- | --- |

—

Lubānas novads,

| — | Ludzas novads, |
| --- | --- |

—

Ludzas novads,

| — | Madonas novads, |
| --- | --- |

—

Madonas novads,

| — | Mālpils novads, |
| --- | --- |

—

Mālpils novads,

| — | Mārupes novads, |
| --- | --- |

—

Mārupes novads,

| — | Mazsalacas novads, |
| --- | --- |

—

Mazsalacas novads,

| — | Mērsraga novads, |
| --- | --- |

—

Mērsraga novads,

| — | Naukšēnu novads, |
| --- | --- |

—

Naukšēnu novads,

| — | Neretas novada Mazzalves pagasta daļa, kas atrodas uz ziemeļaustrumiem no autoceļa P73 un uz rietumiem no autoceļa 932, |
| --- | --- |

—

Neretas novada Mazzalves pagasta daļa, kas atrodas uz ziemeļaustrumiem no autoceļa P73 un uz rietumiem no autoceļa 932,

| — | Ogres novads, |
| --- | --- |

—

Ogres novads,

| — | Olaines novads, |
| --- | --- |

—

Olaines novads,

| — | Ozolnieku novads, |
| --- | --- |

—

Ozolnieku novads,

| — | Pārgaujas novads, |
| --- | --- |

—

Pārgaujas novads,

| — | Pļaviņu novads, |
| --- | --- |

—

Pļaviņu novads,

| — | Preiļu novada Saunas pagasts, |
| --- | --- |

—

Preiļu novada Saunas pagasts,

| — | Priekuļu novada Veselavas pagasts un Priekuļu pagasta daļa, kas atrodas uz dienvidiem no autoceļa P28 un rietumiem no autoceļa P20, |
| --- | --- |

—

Priekuļu novada Veselavas pagasts un Priekuļu pagasta daļa, kas atrodas uz dienvidiem no autoceļa P28 un rietumiem no autoceļa P20,

| — | Raunas novada Drustu pagasts un Raunas pagasta daļa, kas atrodas uz dienvidiem no autoceļa A2, |
| --- | --- |

—

Raunas novada Drustu pagasts un Raunas pagasta daļa, kas atrodas uz dienvidiem no autoceļa A2,

| — | republikas pilsēta Daugavpils, |
| --- | --- |

—

republikas pilsēta Daugavpils,

| — | republikas pilsēta Jēkabpils, |
| --- | --- |

—

republikas pilsēta Jēkabpils,

| — | republikas pilsēta Jūrmala, |
| --- | --- |

—

republikas pilsēta Jūrmala,

| — | republikas pilsēta Rēzekne, |
| --- | --- |

—

republikas pilsēta Rēzekne,

| — | republikas pilsēta Valmiera, |
| --- | --- |

—

republikas pilsēta Valmiera,

| — | Rēzeknes novada Audriņu, Bērzgales, Čornajas, Dricānu, Gaigalavas, Griškānu, Ilzeskalna, Kantinieku, Kaunatas, Lendžu, Lūznavas, Maltas, Mākoņkalna, Nagļu, Ozolaines, Ozolmuižas, Rikavas, Nautrēnu, Sakstagala, Silmalas, Stoļerovas, Stružānu un Vērēmu pagasts un Feimaņu pagasta daļa, kas atrodas uz ziemeļiem no autoceļa V577 un Pušas pagasta daļa, kas atrodas uz ziemeļaustrumiem no autoceļa V577 un V597, |
| --- | --- |

—

Rēzeknes novada Audriņu, Bērzgales, Čornajas, Dricānu, Gaigalavas, Griškānu, Ilzeskalna, Kantinieku, Kaunatas, Lendžu, Lūznavas, Maltas, Mākoņkalna, Nagļu, Ozolaines, Ozolmuižas, Rikavas, Nautrēnu, Sakstagala, Silmalas, Stoļerovas, Stružānu un Vērēmu pagasts un Feimaņu pagasta daļa, kas atrodas uz ziemeļiem no autoceļa V577 un Pušas pagasta daļa, kas atrodas uz ziemeļaustrumiem no autoceļa V577 un V597,

| — | Riebiņu novada Sīļukalna, Stabulnieku, Galēnu un Silajāņu pagasts, |
| --- | --- |

—

Riebiņu novada Sīļukalna, Stabulnieku, Galēnu un Silajāņu pagasts,

| — | Rojas novads, |
| --- | --- |

—

Rojas novads,

| — | Ropažu novada daļa, kas atrodas uz austrumiem no autoceļa P10, |
| --- | --- |

—

Ropažu novada daļa, kas atrodas uz austrumiem no autoceļa P10,

| — | Rugāju novads, |
| --- | --- |

—

Rugāju novads,

| — | Rundāles novads, |
| --- | --- |

—

Rundāles novads,

| — | Rūjienas novads, |
| --- | --- |

—

Rūjienas novads,

| — | Salacgrīvas novads, |
| --- | --- |

—

Salacgrīvas novads,

| — | Salas novads, |
| --- | --- |

—

Salas novads,

| — | Saldus novada Jaunlutriņu, Lutriņu un Šķēdes pagasts, |
| --- | --- |

—

Saldus novada Jaunlutriņu, Lutriņu un Šķēdes pagasts,

| — | Saulkrastu novads, |
| --- | --- |

—

Saulkrastu novads,

| — | Siguldas novada Mores pagasts un Allažu pagasta daļa, kas atrodas uz dienvidiem no autoceļa P3, |
| --- | --- |

—

Siguldas novada Mores pagasts un Allažu pagasta daļa, kas atrodas uz dienvidiem no autoceļa P3,

| — | Skrīveru novads, |
| --- | --- |

—

Skrīveru novads,

| — | Smiltenes novads, |
| --- | --- |

—

Smiltenes novads,

| — | Strenču novads, |
| --- | --- |

—

Strenču novads,

| — | Talsu novads, |
| --- | --- |

—

Talsu novads,

| — | Tukuma novads, |
| --- | --- |

—

Tukuma novads,

| — | Valkas novads, |
| --- | --- |

—

Valkas novads,

| — | Varakļānu novads, |
| --- | --- |

—

Varakļānu novads,

| — | Vecpiebalgas novads, |
| --- | --- |

—

Vecpiebalgas novads,

| — | Vecumnieku novads, |
| --- | --- |

—

Vecumnieku novads,

| — | Ventspils novada Ances, Tārgales, Popes, Vārves, Užavas, Piltenes, Puzes, Ziru, Ugāles, Usmas un Zlēku pagasts, Piltenes pilsēta, |
| --- | --- |

—

Ventspils novada Ances, Tārgales, Popes, Vārves, Užavas, Piltenes, Puzes, Ziru, Ugāles, Usmas un Zlēku pagasts, Piltenes pilsēta,

| — | Viesītes novada Elkšņu un Viesītes pagasts, Viesītes pilsēta, |
| --- | --- |

—

Viesītes novada Elkšņu un Viesītes pagasts, Viesītes pilsēta,

| — | Viļakas novads, |
| --- | --- |

—

Viļakas novads,

| — | Viļānu novads, |
| --- | --- |

—

Viļānu novads,

| — | Zilupes novads. |
| --- | --- |

—

Zilupes novads.

4.   Lithuania

The following areas in Lithuania:

| — | Akmenės rajono savivaldybė: Akmenės, Naujosios Akmenės kaimiškoji, Naujosios Akmenės miesto ir Ventos seniūnijos, |
| --- | --- |

—

Akmenės rajono savivaldybė: Akmenės, Naujosios Akmenės kaimiškoji, Naujosios Akmenės miesto ir Ventos seniūnijos,

| — | Alytaus miesto savivaldybė, |
| --- | --- |

—

Alytaus miesto savivaldybė,

| — | Alytaus rajono savivaldybė, |
| --- | --- |

—

Alytaus rajono savivaldybė,

| — | Anykščių rajono savivaldybė: Andrioniškio, Anykščių, Debeikių, Kavarsko seniūnijos dalis į šiaurės rytus nuo kelio Nr. 1205 ir į šiaurę rytus nuo kelio Nr. 1218, Kurklių, Skiemonių, Svėdasų, Troškūnų ir Viešintų seniūnijos, |
| --- | --- |

—

Anykščių rajono savivaldybė: Andrioniškio, Anykščių, Debeikių, Kavarsko seniūnijos dalis į šiaurės rytus nuo kelio Nr. 1205 ir į šiaurę rytus nuo kelio Nr. 1218, Kurklių, Skiemonių, Svėdasų, Troškūnų ir Viešintų seniūnijos,

| — | Birštono savivaldybė, |
| --- | --- |

—

Birštono savivaldybė,

| — | Biržų miesto savivaldybė, |
| --- | --- |

—

Biržų miesto savivaldybė,

| — | Biržų rajono savivaldybė: Nemunėlio Radviliškio, Pabiržės, Pačeriaukštės ir Parovėjos seniūnijos, |
| --- | --- |

—

Biržų rajono savivaldybė: Nemunėlio Radviliškio, Pabiržės, Pačeriaukštės ir Parovėjos seniūnijos,

| — | Elektrėnų savivaldybė, |
| --- | --- |

—

Elektrėnų savivaldybė,

| — | Ignalinos rajono savivaldybė, |
| --- | --- |

—

Ignalinos rajono savivaldybė,

| — | Jonavos rajono savivaldybė, |
| --- | --- |

—

Jonavos rajono savivaldybė,

| — | Jurbarko rajono savivaldybė: Girdžių, Jurbarko miesto, Jurbarkų, Juodaičių, Raudonės, Seredžiaus, Veliuonos,Skirsnemunės ir Šimkaičių seniūnijos, |
| --- | --- |

—

Jurbarko rajono savivaldybė: Girdžių, Jurbarko miesto, Jurbarkų, Juodaičių, Raudonės, Seredžiaus, Veliuonos,Skirsnemunės ir Šimkaičių seniūnijos,

| — | Kaišiadorių miesto savivaldybė, |
| --- | --- |

—

Kaišiadorių miesto savivaldybė,

| — | Kaišiadorių rajono savivaldybė, |
| --- | --- |

—

Kaišiadorių rajono savivaldybė,

| — | Kauno miesto savivaldybė, |
| --- | --- |

—

Kauno miesto savivaldybė,

| — | Kauno rajono savivaldybės: Akademijos, Alšėnų, Batniavos, Domeikavos, Ežerėlio, Garliavos apylinkių, Garliavos, Karmėlavos, Kačerginės, Kulautuvos, Lapių, Linksmakalnio, Neveronių, Raudondvario, Ringaudų, Rokų, Samylų, Taurakiemio, Užliedžių, Vilkijos apylinkių, Vilkijos, Zapyškio seniūnijos, |
| --- | --- |

—

Kauno rajono savivaldybės: Akademijos, Alšėnų, Batniavos, Domeikavos, Ežerėlio, Garliavos apylinkių, Garliavos, Karmėlavos, Kačerginės, Kulautuvos, Lapių, Linksmakalnio, Neveronių, Raudondvario, Ringaudų, Rokų, Samylų, Taurakiemio, Užliedžių, Vilkijos apylinkių, Vilkijos, Zapyškio seniūnijos,

| — | Kėdainių rajono savivaldybė savivaldybės: Dotnuvos, Gudžiūnų, Josvainių seniūnijos dalis į šiaurę nuo kelio Nr 3514 ir Nr 229, Krakių, Kėdainių miesto, Surviliškio, Truskavos, Vilainių ir Šėtos seniūnijos, |
| --- | --- |

—

Kėdainių rajono savivaldybė savivaldybės: Dotnuvos, Gudžiūnų, Josvainių seniūnijos dalis į šiaurę nuo kelio Nr 3514 ir Nr 229, Krakių, Kėdainių miesto, Surviliškio, Truskavos, Vilainių ir Šėtos seniūnijos,

| — | Kupiškio rajono savivaldybė: Noriūnų, Skapiškio, Subačiaus ir Šimonių seniūnijos, |
| --- | --- |

—

Kupiškio rajono savivaldybė: Noriūnų, Skapiškio, Subačiaus ir Šimonių seniūnijos,

| — | Mažeikių rajono savivaldybės: Laižuvos, Mažeikių apylinkės, Mažeikių, Reivyčių ir Viekšnių seniūnijos, |
| --- | --- |

—

Mažeikių rajono savivaldybės: Laižuvos, Mažeikių apylinkės, Mažeikių, Reivyčių ir Viekšnių seniūnijos,

| — | Molėtų rajono savivaldybė, |
| --- | --- |

—

Molėtų rajono savivaldybė,

| — | Pakruojo rajono savivaldybė: Klovainių, Rozalimo, Lygumų, Pakruojo, Žeimelio, Linkuvos ir Pašvitinio seniūnijos, |
| --- | --- |

—

Pakruojo rajono savivaldybė: Klovainių, Rozalimo, Lygumų, Pakruojo, Žeimelio, Linkuvos ir Pašvitinio seniūnijos,

| — | Panevėžio rajono savivaldybė: Krekenavos seninūnijos dalis į vakarus nuo Nevėžio upės ir į pietus nuo kelio Nr. 3004, |
| --- | --- |

—

Panevėžio rajono savivaldybė: Krekenavos seninūnijos dalis į vakarus nuo Nevėžio upės ir į pietus nuo kelio Nr. 3004,

| — | Pasvalio rajono savivaldybė: Joniškėlio apylinkių, Joniškėlio miesto, Saločių ir Pušaloto seniūnijos, |
| --- | --- |

—

Pasvalio rajono savivaldybė: Joniškėlio apylinkių, Joniškėlio miesto, Saločių ir Pušaloto seniūnijos,

| — | Radviliškio rajono savivaldybė, |
| --- | --- |

—

Radviliškio rajono savivaldybė,

| — | Raseinių rajono savivaldybė: Ariogalos, Betygalos, Pagojukų ir Šiluvos seniūnijos ir Kalnūjų ir Girkalnio seniūnijų dalisį pietus nuo kelio Nr. A1, |
| --- | --- |

—

Raseinių rajono savivaldybė: Ariogalos, Betygalos, Pagojukų ir Šiluvos seniūnijos ir Kalnūjų ir Girkalnio seniūnijų dalisį pietus nuo kelio Nr. A1,

| — | Prienų miesto savivaldybė, |
| --- | --- |

—

Prienų miesto savivaldybė,

| — | Prienų rajono savivaldybė, |
| --- | --- |

—

Prienų rajono savivaldybė,

| — | Rokiškio rajono savivaldybė, |
| --- | --- |

—

Rokiškio rajono savivaldybė,

| — | Širvintų rajono savivaldybė, |
| --- | --- |

—

Širvintų rajono savivaldybė,

| — | Švenčionių rajono savivaldybė, |
| --- | --- |

—

Švenčionių rajono savivaldybė,

| — | Trakų rajono savivaldybė, |
| --- | --- |

—

Trakų rajono savivaldybė,

| — | Utenos rajono savivaldybė, |
| --- | --- |

—

Utenos rajono savivaldybė,

| — | Vilniaus miesto savivaldybė, |
| --- | --- |

—

Vilniaus miesto savivaldybė,

| — | Vilniaus rajono savivaldybė, |
| --- | --- |

—

Vilniaus rajono savivaldybė,

| — | Vilkaviškio rajono savivaldybė, |
| --- | --- |

—

Vilkaviškio rajono savivaldybė,

| — | Visagino savivaldybė, |
| --- | --- |

—

Visagino savivaldybė,

| — | Zarasų rajono savivaldybė. |
| --- | --- |

—

Zarasų rajono savivaldybė.

5.   Poland

The following areas in Poland:

| w województwie warmińsko-mazurskim:





  gminy Kalinowo, Prostki i gmina wiejska Ełk w powiecie ełckim, |
| --- |

w województwie warmińsko-mazurskim:

gminy Kalinowo, Prostki i gmina wiejska Ełk w powiecie ełckim,

| część gminy Wieliczki położona na południe od linii wyznaczonej przez drogę nr 655 w powiecie oleckim, |
| --- |

część gminy Wieliczki położona na południe od linii wyznaczonej przez drogę nr 655 w powiecie oleckim,

| gmina Orzysz, Biała Piska i część gminy Pisz położona na północ od linii wyznaczonej przez drogę nr 58 w powiecie piskim, |
| --- |

gmina Orzysz, Biała Piska i część gminy Pisz położona na północ od linii wyznaczonej przez drogę nr 58 w powiecie piskim,

| gmina Górowo Iławeckie z miastem Górowo Iławeckie w powiecie bartoszyckim, |
| --- |

gmina Górowo Iławeckie z miastem Górowo Iławeckie w powiecie bartoszyckim,

| gminy Braniewo z miastem Braniewo, Lelkowo, Pieniężno, Frombork, Płoskinia i część gminy Wilczęta położona na północ od linii wyznaczonej przez drogę 509 w powiecie braniewskim. |
| --- |

gminy Braniewo z miastem Braniewo, Lelkowo, Pieniężno, Frombork, Płoskinia i część gminy Wilczęta położona na północ od linii wyznaczonej przez drogę 509 w powiecie braniewskim.

| w województwie podlaskim:





  część gminy Wizna położona na zachód od linii wyznaczonej przez drogę łączącą miejscowości Jedwabne i Wizna oraz na południe od linii wyznaczoną przez drogę nr 64 (od skrzyżowania w miejscowości Wizna w kierunku wschodnim do granicy gminy) w powiecie łomżyńskim, |
| --- |

w województwie podlaskim:

część gminy Wizna położona na zachód od linii wyznaczonej przez drogę łączącą miejscowości Jedwabne i Wizna oraz na południe od linii wyznaczoną przez drogę nr 64 (od skrzyżowania w miejscowości Wizna w kierunku wschodnim do granicy gminy) w powiecie łomżyńskim,

| gmina Drohiczyn w powiecie siemiatyckim, |
| --- |

gmina Drohiczyn w powiecie siemiatyckim,

| gmina Dubicze Cerkiewne, Czyże, Białowieża, Hajnówka z miastem Hajnówka, Narew, Narewka i części gmin Kleszczele i Czeremcha położone na wschód od drogi nr 66 w powiecie hajnowskim, |
| --- |

gmina Dubicze Cerkiewne, Czyże, Białowieża, Hajnówka z miastem Hajnówka, Narew, Narewka i części gmin Kleszczele i Czeremcha położone na wschód od drogi nr 66 w powiecie hajnowskim,

| gmina Kobylin-Borzymy i Sokoły w powiecie wysokomazowieckim, |
| --- |

gmina Kobylin-Borzymy i Sokoły w powiecie wysokomazowieckim,

| gminy Grabowo i Stawiski w powiecie kolneńskim, |
| --- |

gminy Grabowo i Stawiski w powiecie kolneńskim,

| gminy Czarna Białostocka, Dobrzyniewo Duże, Gródek, Łapy, Michałowo, Supraśl, Turośń Kościelna, Tykocin, Wasilków, Zabłudów, Zawady i Choroszcz w powiecie białostockim, |
| --- |

gminy Czarna Białostocka, Dobrzyniewo Duże, Gródek, Łapy, Michałowo, Supraśl, Turośń Kościelna, Tykocin, Wasilków, Zabłudów, Zawady i Choroszcz w powiecie białostockim,

| część gminy Bielsk Podlaski położona na wschód od linii wyznaczonej przez drogę nr 19 (w kierunku północnym od miasta Bielsk Podlaski) i przedłużonej przez wschodnią granicę miasta Bielsk Podlaski i drogę nr 66 (w kierunku południowym od miasta Bielsk Podlaski), gminy Orla i Boćki w powiecie bielskim, |
| --- |

część gminy Bielsk Podlaski położona na wschód od linii wyznaczonej przez drogę nr 19 (w kierunku północnym od miasta Bielsk Podlaski) i przedłużonej przez wschodnią granicę miasta Bielsk Podlaski i drogę nr 66 (w kierunku południowym od miasta Bielsk Podlaski), gminy Orla i Boćki w powiecie bielskim,

| powiat sejneński, |
| --- |

powiat sejneński,

| gminy Jeleniewo, Rutka-Tartak, Szypliszki część gminy Raczki położona na południe od linii wyznaczonej przez drogę 655 i część gminy Suwałki położona na wschód od linii wyznaczonej przez drogę nr 655 w powiecie suwalskim, |
| --- |

gminy Jeleniewo, Rutka-Tartak, Szypliszki część gminy Raczki położona na południe od linii wyznaczonej przez drogę 655 i część gminy Suwałki położona na wschód od linii wyznaczonej przez drogę nr 655 w powiecie suwalskim,

| powiat miejski Suwałki, |
| --- |

powiat miejski Suwałki,

| gminy Augustów z miastem Augustów, Bargłów Kościelny, Nowinka, Płaska i Sztabin w powiecie augustowskim, |
| --- |

gminy Augustów z miastem Augustów, Bargłów Kościelny, Nowinka, Płaska i Sztabin w powiecie augustowskim,

| powiat sokólski, |
| --- |

powiat sokólski,

| powiat miejski Białystok. |
| --- |

powiat miejski Białystok.

| w województwie mazowieckim:





  gmina Przesmyki, Domanice, Suchożebry, Mordy, Wiśniewi Zbuczyn w powiecie siedleckim, |
| --- |

w województwie mazowieckim:

gmina Przesmyki, Domanice, Suchożebry, Mordy, Wiśniewi Zbuczyn w powiecie siedleckim,

| gmina Repki, Jabłonna Lacka, część gminy Bielany położona na wschód od linii wyznaczonej przez drogę nr 63 i część gminy wiejskiej Sokołów Podlaski położona na wschód od linii wyznaczonej przez drogę nr 63 w powiecie sokołowskim, |
| --- |

gmina Repki, Jabłonna Lacka, część gminy Bielany położona na wschód od linii wyznaczonej przez drogę nr 63 i część gminy wiejskiej Sokołów Podlaski położona na wschód od linii wyznaczonej przez drogę nr 63 w powiecie sokołowskim,

| gminy Łosice i Olszanka w powiecie łosickim, |
| --- |

gminy Łosice i Olszanka w powiecie łosickim,

| gmina Brochów w powiecie sochaczewskim, |
| --- |

gmina Brochów w powiecie sochaczewskim,

| gminy Czosnów, Leoncin, miasto Nowy Dwór Mazowiecki, Pomiechówek i Zakroczym w powiecie nowodworskim, |
| --- |

gminy Czosnów, Leoncin, miasto Nowy Dwór Mazowiecki, Pomiechówek i Zakroczym w powiecie nowodworskim,

| gmina Pokrzywnica w powiecie pułtuskim, |
| --- |

gmina Pokrzywnica w powiecie pułtuskim,

| gminy Kobyłka, Marki, Radzymin, Wołomin, Zielonka i Ząbki w powiecie wołomińskim, |
| --- |

gminy Kobyłka, Marki, Radzymin, Wołomin, Zielonka i Ząbki w powiecie wołomińskim,

| gmina Sulejówek w powiecie mińskim, |
| --- |

gmina Sulejówek w powiecie mińskim,

| powiat warszawski zachodni, |
| --- |

powiat warszawski zachodni,

| powiat legionowski, |
| --- |

powiat legionowski,

| powiat otwocki, |
| --- |

powiat otwocki,

| gminy Konstancin – Jeziorna, Piaseczno, Prażmów i Góra Kalwaria w powiecie piaseczyńskim, |
| --- |

gminy Konstancin – Jeziorna, Piaseczno, Prażmów i Góra Kalwaria w powiecie piaseczyńskim,

| gmina Chynów w powiecie grójeckim, |
| --- |

gmina Chynów w powiecie grójeckim,

| powiat miejski Warszawa. |
| --- |

powiat miejski Warszawa.

| w województwie lubelskim:





  gminy Wohyń, Ulan-Majorat Czemierniki i miasto Radzyń Podlaski w powiecie radzyńskim, |
| --- |

w województwie lubelskim:

gminy Wohyń, Ulan-Majorat Czemierniki i miasto Radzyń Podlaski w powiecie radzyńskim,

| gmina wiejska Łuków z miastem Łuków, Stanin, Stoczek Łukowski z miastem Stoczek Łukowski i Trzebieszów w powiecie łukowskim, |
| --- |

gmina wiejska Łuków z miastem Łuków, Stanin, Stoczek Łukowski z miastem Stoczek Łukowski i Trzebieszów w powiecie łukowskim,

| gminy Stary Brus i Urszulin w powiecie włodawskim, |
| --- |

gminy Stary Brus i Urszulin w powiecie włodawskim,

| gminy Rossosz, Wisznice, Sławatycze, Sosnówka, Tuczna i Łomazy w powiecie bialskim, |
| --- |

gminy Rossosz, Wisznice, Sławatycze, Sosnówka, Tuczna i Łomazy w powiecie bialskim,

| gminy Dębowa Kłoda, Jabłoń, Milanów, Parczew, Sosnowica i Siemień w powiecie parczewskim, |
| --- |

gminy Dębowa Kłoda, Jabłoń, Milanów, Parczew, Sosnowica i Siemień w powiecie parczewskim,

| gminy Niedźwiada i Ostrówek w powiecie lubartowskim, |
| --- |

gminy Niedźwiada i Ostrówek w powiecie lubartowskim,

| gminy Ruda Huta, Sawin i Wierzbica w powiecie chełmskim. |
| --- |

gminy Ruda Huta, Sawin i Wierzbica w powiecie chełmskim.

PART III

1.   Estonia

The following areas in Estonia:

| — | Audru vald, |
| --- | --- |

—

Audru vald,

| — | Lääne-Nigula vald, |
| --- | --- |

—

Lääne-Nigula vald,

| — | Laimjala vald, |
| --- | --- |

—

Laimjala vald,

| — | osa Leisi vallast, mis asub ida pool Kuressaare-Leisi maanteest (maantee nr 79), |
| --- | --- |

—

osa Leisi vallast, mis asub ida pool Kuressaare-Leisi maanteest (maantee nr 79),

| — | Osa Noarootsi vallast, mis asub lõuna pool maanteest nr 230, |
| --- | --- |

—

Osa Noarootsi vallast, mis asub lõuna pool maanteest nr 230,

| — | Orissaare vald, |
| --- | --- |

—

Orissaare vald,

| — | Pöide vald, |
| --- | --- |

—

Pöide vald,

| — | Osa Ridala vallast, mis asub kirde pool maanteest nr 31, |
| --- | --- |

—

Osa Ridala vallast, mis asub kirde pool maanteest nr 31,

| — | Tõstamaa vald, |
| --- | --- |

—

Tõstamaa vald,

| — | Valjala vald. |
| --- | --- |

—

Valjala vald.

2.   Latvia

The following areas in Latvia:

| — | Aglonas novada Aglonas pagasts, |
| --- | --- |

—

Aglonas novada Aglonas pagasts,

| — | Auces novada Vītiņu pagasts, |
| --- | --- |

—

Auces novada Vītiņu pagasts,

| — | Daugavpils novada Nīcgales, Kalupes, Dubnas un Višķu pagasts, |
| --- | --- |

—

Daugavpils novada Nīcgales, Kalupes, Dubnas un Višķu pagasts,

| — | Garkalnes novada daļa, kas atrodas uz dienvidaustrumiem no autoceļa A2, |
| --- | --- |

—

Garkalnes novada daļa, kas atrodas uz dienvidaustrumiem no autoceļa A2,

| — | Ikšķiles novada Tīnūžu pagasta daļa, kas atrodas uz ziemeļrietumiem no autoceļa P10, |
| --- | --- |

—

Ikšķiles novada Tīnūžu pagasta daļa, kas atrodas uz ziemeļrietumiem no autoceļa P10,

| — | Inčukalna novads, |
| --- | --- |

—

Inčukalna novads,

| — | Krimuldas novada Krimuldas pagasta daļa, kas atrodas uz dienvidrietumiem no autoceļa V89 un V81, un Lēdurgas pagasta daļa, kas atrodas uz dienvidrietumiem no autoceļa V81 un V128, |
| --- | --- |

—

Krimuldas novada Krimuldas pagasta daļa, kas atrodas uz dienvidrietumiem no autoceļa V89 un V81, un Lēdurgas pagasta daļa, kas atrodas uz dienvidrietumiem no autoceļa V81 un V128,

| — | Limbažu novada Vidrižu pagasts, |
| --- | --- |

—

Limbažu novada Vidrižu pagasts,

| — | Neretas novada Neretas, Pilskalnes, Zalves pagasts un Mazzalves pagasta daļa, kas atrodas uz dienvidrietumiem no autoceļa P73 un uz austrumiem no autoceļa 932, |
| --- | --- |

—

Neretas novada Neretas, Pilskalnes, Zalves pagasts un Mazzalves pagasta daļa, kas atrodas uz dienvidrietumiem no autoceļa P73 un uz austrumiem no autoceļa 932,

| — | Priekuļu novada Liepas un Mārsēnu pagasts un Priekuļu pagasta daļa, kas atrodas uz ziemeļiem no autoceļa P28 un austrumiem no autoceļa P20, |
| --- | --- |

—

Priekuļu novada Liepas un Mārsēnu pagasts un Priekuļu pagasta daļa, kas atrodas uz ziemeļiem no autoceļa P28 un austrumiem no autoceļa P20,

| — | Preiļu novada Preiļu, Aizkalnes un Pelēču pagasts un Preiļu pilsēta, |
| --- | --- |

—

Preiļu novada Preiļu, Aizkalnes un Pelēču pagasts un Preiļu pilsēta,

| — | Raunas novada Raunas pagasta daļa, kas atrodas uz ziemeļiem no autoceļa A2, |
| --- | --- |

—

Raunas novada Raunas pagasta daļa, kas atrodas uz ziemeļiem no autoceļa A2,

| — | Rēzeknes novada Feimaņu pagasta daļa, kas atrodas uz dienvidiem no autoceļa V577 un Pušas pagasta daļa, kas atrodas uz dienvidrietumiem no autoceļa V577 un V597, |
| --- | --- |

—

Rēzeknes novada Feimaņu pagasta daļa, kas atrodas uz dienvidiem no autoceļa V577 un Pušas pagasta daļa, kas atrodas uz dienvidrietumiem no autoceļa V577 un V597,

| — | Riebiņu novada Riebiņu un Rušonas pagasts, |
| --- | --- |

—

Riebiņu novada Riebiņu un Rušonas pagasts,

| — | Ropažu novada daļa, kas atrodas uz rietumiem no autoceļa P10, |
| --- | --- |

—

Ropažu novada daļa, kas atrodas uz rietumiem no autoceļa P10,

| — | Salaspils novads, |
| --- | --- |

—

Salaspils novads,

| — | Saldus novada Jaunauces, Rubas, Vadakstes un Zvārdes pagasts, |
| --- | --- |

—

Saldus novada Jaunauces, Rubas, Vadakstes un Zvārdes pagasts,

| — | Sējas novads, |
| --- | --- |

—

Sējas novads,

| — | Siguldas novada Siguldas pagasts un Allažu pagasta daļa, kas atrodas uz ziemeļiem no autoceļa P3, un Siguldas pilsēta, |
| --- | --- |

—

Siguldas novada Siguldas pagasts un Allažu pagasta daļa, kas atrodas uz ziemeļiem no autoceļa P3, un Siguldas pilsēta,

| — | Stopiņu novada daļa, kas atrodas uz austrumiem no autoceļa V36, P4 un P5, Acones ielas, Dauguļupes ielas un Dauguļupītes, |
| --- | --- |

—

Stopiņu novada daļa, kas atrodas uz austrumiem no autoceļa V36, P4 un P5, Acones ielas, Dauguļupes ielas un Dauguļupītes,

| — | Vārkavas novads, |
| --- | --- |

—

Vārkavas novads,

| — | Viesītes novada Rites un Saukas pagasts. |
| --- | --- |

—

Viesītes novada Rites un Saukas pagasts.

3.   Lithuania

The following areas in Lithuania:

| — | Anykščių rajono savivaldybė: Kavarsko seniūnijos dalis į vakarus nuo kelio Nr. 1205 ir į pietus nuo kelio Nr. 1218 ir Traupio seniūnija, |
| --- | --- |

—

Anykščių rajono savivaldybė: Kavarsko seniūnijos dalis į vakarus nuo kelio Nr. 1205 ir į pietus nuo kelio Nr. 1218 ir Traupio seniūnija,

| — | Biržų rajono savivaldybė: Vabalninko, Papilio ir Širvenos seniūnijos, |
| --- | --- |

—

Biržų rajono savivaldybė: Vabalninko, Papilio ir Širvenos seniūnijos,

| — | Druskininkų savivaldybė, |
| --- | --- |

—

Druskininkų savivaldybė,

| — | Kauno rajono savivaldybė: Babtų, Čekiškės ir Vandžiogalos seniūnijos, |
| --- | --- |

—

Kauno rajono savivaldybė: Babtų, Čekiškės ir Vandžiogalos seniūnijos,

| — | Kėdainių rajono savivaldybė: Pelėdnagių, Pernaravos seniūnijos ir Josvainių seniūnijos dalis į pietus nuo kelio Nr 3514 ir Nr 229, |
| --- | --- |

—

Kėdainių rajono savivaldybė: Pelėdnagių, Pernaravos seniūnijos ir Josvainių seniūnijos dalis į pietus nuo kelio Nr 3514 ir Nr 229,

| — | Kupiškio rajono savivaldybė: Alizavos ir Kupiškio seniūnijos, |
| --- | --- |

—

Kupiškio rajono savivaldybė: Alizavos ir Kupiškio seniūnijos,

| — | Lazdijų rajono savivaldybė, |
| --- | --- |

—

Lazdijų rajono savivaldybė,

| — | Pakruojo rajono savivaldybė: Guostagalio seniūnija, |
| --- | --- |

—

Pakruojo rajono savivaldybė: Guostagalio seniūnija,

| — | Panevėžio miesto savivaldybė, |
| --- | --- |

—

Panevėžio miesto savivaldybė,

| — | Panevėžio rajono savivaldybė: Karsakiškio, Miežiškių, Naujamiesčio, Paįstrio, Raguvos, Ramygalos, Smilgių, Upytės, Vadoklių, Velžio seniūnijos ir Krekenavos seniūnijos dalis į rytus nuo Nevėžio upės ir į šiaurę nuo kelio Nr. 3004, |
| --- | --- |

—

Panevėžio rajono savivaldybė: Karsakiškio, Miežiškių, Naujamiesčio, Paįstrio, Raguvos, Ramygalos, Smilgių, Upytės, Vadoklių, Velžio seniūnijos ir Krekenavos seniūnijos dalis į rytus nuo Nevėžio upės ir į šiaurę nuo kelio Nr. 3004,

| — | Pasvalio rajono savivaldybė: Daujėnų, Krinčino, Namišių, Pasvalio apylinkių, Pasvalio miesto, Pumpėnų ir Vaškų seniūnijos, |
| --- | --- |

—

Pasvalio rajono savivaldybė: Daujėnų, Krinčino, Namišių, Pasvalio apylinkių, Pasvalio miesto, Pumpėnų ir Vaškų seniūnijos,

| — | Šalčininkų rajono savivaldybė, |
| --- | --- |

—

Šalčininkų rajono savivaldybė,

| — | Ukmergės rajono savivaldybė, |
| --- | --- |

—

Ukmergės rajono savivaldybė,

| — | Varėnos rajono savivaldybė. |
| --- | --- |

—

Varėnos rajono savivaldybė.

4.   Poland

The following areas in Poland:

| w województwie podlaskim:





  powiat grajewski, |
| --- |

w województwie podlaskim:

powiat grajewski,

| powiat moniecki, |
| --- |

powiat moniecki,

| gminy Jedwabne i Przytuły oraz część gminy Wizna, położona na wschód od linii wyznaczonej przez drogę łączącą miejscowości Jedwabne i Wizna oraz na północ od linii wyznaczonej przez drogę 64 (od skrzyżowania w miejscowości Wizna w kierunku wschodnim do granicy gminy) w powiecie łomżyńskim, |
| --- |

gminy Jedwabne i Przytuły oraz część gminy Wizna, położona na wschód od linii wyznaczonej przez drogę łączącą miejscowości Jedwabne i Wizna oraz na północ od linii wyznaczonej przez drogę 64 (od skrzyżowania w miejscowości Wizna w kierunku wschodnim do granicy gminy) w powiecie łomżyńskim,

| gmina Lipsk w powiecie augustowskim, |
| --- |

gmina Lipsk w powiecie augustowskim,

| części gminy Czeremcha i Kleszczele położone na zachód od drogi nr 66 w powiecie hajnowskim, |
| --- |

części gminy Czeremcha i Kleszczele położone na zachód od drogi nr 66 w powiecie hajnowskim,

| gminy, Mielnik, Milejczyce, Nurzec-Stacja, Siemiatycze z miastem Siemiatycze w powiecie siemiatyckim. |
| --- |

gminy, Mielnik, Milejczyce, Nurzec-Stacja, Siemiatycze z miastem Siemiatycze w powiecie siemiatyckim.

| w województwie mazowieckim:





  gminy Platerów, Sarnaki, Stara Kornica i Huszlew w powiecie łosickim, |
| --- |

w województwie mazowieckim:

gminy Platerów, Sarnaki, Stara Kornica i Huszlew w powiecie łosickim,

| gminy Korczew i Paprotnia w powiecie siedleckim. |
| --- |

gminy Korczew i Paprotnia w powiecie siedleckim.

| w województwie lubelskim:





  gminy Kodeń, Konstantynów, Janów Podlaski, Leśna Podlaska, Piszczac, Rokitno, Biała Podlaska, Zalesie i Terespol z miastem Terespol, Drelów, Międzyrzec Podlaski z miastem Międzyrzec Podlaski w powiecie bialskim, |
| --- |

w województwie lubelskim:

gminy Kodeń, Konstantynów, Janów Podlaski, Leśna Podlaska, Piszczac, Rokitno, Biała Podlaska, Zalesie i Terespol z miastem Terespol, Drelów, Międzyrzec Podlaski z miastem Międzyrzec Podlaski w powiecie bialskim,

| powiat miejski Biała Podlaska, |
| --- |

powiat miejski Biała Podlaska,

| gminy Radzyń Podlaski, Komarówka Podlaska i Kąkolewnica w powiecie radzyńskim, |
| --- |

gminy Radzyń Podlaski, Komarówka Podlaska i Kąkolewnica w powiecie radzyńskim,

| gminy Hanna, Hańsk, Wola Uhruska, Wyryki i gmina wiejska Włodawa w powiecie włodawskim, |
| --- |

gminy Hanna, Hańsk, Wola Uhruska, Wyryki i gmina wiejska Włodawa w powiecie włodawskim,

| gmina Podedwórze w powiecie parczewskim. |
| --- |

gmina Podedwórze w powiecie parczewskim.

PART IV

Italy

The following areas in Italy:

| — | tutto il territorio della Sardegna. |
| --- | --- |

—

tutto il territorio della Sardegna.

---