# C_2005057EN.01003702.xml

| 5.3.2005 | EN | Official Journal of the European Union | C 57/37 |
| --- | --- | --- | --- |

5.3.2005

EN

Official Journal of the European Union

C 57/37

---

Action brought on 29 December 2004 by Navigazione Libera del Golfo S.p.A. against the Commission of the European Communities

(Case T-504/04)

(2005/C 57/64)

Language of the case: Italian

An action against the European Commission for the annulment of the decision adopted on 16 March 2004 (1), pursuant to the first paragraph of Article 88(2) EC and Article 86(2) EC, relating to the authorisation of the aid scheme paid by Italy to the public maritime transport undertaking Caremar (Gruppo Tirrenia) was brought before the Court of First Instance of the European Communities on 29 December 2004 by Navigazione Libera del Golfo S.p.A. (NLG), established in Naples, represented by S. Ravenna, lawyer.

1

The applicant claims that the Court should:

| 1. | annul Article 3(1) of that decision in so far as it authorises aid paid to Caremar for the passenger transport services by ship on the Naples Beverello – Capri route with effect from 1 January 1992, and order repayment of the aid unlawfully received from 6 August 1989; |
| --- | --- |

1.

annul Article 3(1) of that decision in so far as it authorises aid paid to Caremar for the passenger transport services by ship on the Naples Beverello – Capri route with effect from 1 January 1992, and order repayment of the aid unlawfully received from 6 August 1989;

| 2. | annul Article 3(2)(a) of the decision in so far as it orders the annulment of the aid for scheduled ‘fast passenger transport’ services on the Naples Beverello – Capri route with effect from 1 September 2004 instead of 6 August 1989 and at the same time ordering reimbursement of the aid unlawfully received by Caremar since the latter date; |
| --- | --- |

2.

annul Article 3(2)(a) of the decision in so far as it orders the annulment of the aid for scheduled ‘fast passenger transport’ services on the Naples Beverello – Capri route with effect from 1 September 2004 instead of 6 August 1989 and at the same time ordering reimbursement of the aid unlawfully received by Caremar since the latter date;

| 3. | order performance of the obligation to reduce Caremar's ‘fast’ passenger transport capacity, by ordering cessation of the relevant services with effect from 1 January 2005; |
| --- | --- |

3.

order performance of the obligation to reduce Caremar's ‘fast’ passenger transport capacity, by ordering cessation of the relevant services with effect from 1 January 2005;

| 4. | in the alternative, in so far as the Court of First Instance does not annul Article 3(1) in the terms stated in 1. above:






  (a) | order repayment of the aid unlawfully received by Caremar in the 29 months from 6 August 1989 to 1 January 1992, the effective date of the authorisation; |
| --- | --- | --- |

4.

in the alternative, in so far as the Court of First Instance does not annul Article 3(1) in the terms stated in 1. above:

(a)

order repayment of the aid unlawfully received by Caremar in the 29 months from 6 August 1989 to 1 January 1992, the effective date of the authorisation;

| (b) | annul Article 3(2)(d) in so far as it fails to lay down a requirement to disclose the costs and associated losses occasioned by the PSO (public service obligations) imposed on Caremar, and the amount of the aid allocated annually; |
| --- | --- |

(b)

annul Article 3(2)(d) in so far as it fails to lay down a requirement to disclose the costs and associated losses occasioned by the PSO (public service obligations) imposed on Caremar, and the amount of the aid allocated annually;

| (c) | annul Article 5 in so far as it fails to lay down a requirement of prior notification of the aid connected to the alteration of the prices charged by Caremar, including group discounts; |
| --- | --- |

(c)

annul Article 5 in so far as it fails to lay down a requirement of prior notification of the aid connected to the alteration of the prices charged by Caremar, including group discounts;

| 5. | order the Commission to pay the costs of the proceedings, subsistence expenses and remuneration of agents, advisers or lawyers. |
| --- | --- |

5.

order the Commission to pay the costs of the proceedings, subsistence expenses and remuneration of agents, advisers or lawyers.

Pleas in law and main arguments

The applicant company, which, following the meeting of the Regione Campania of 14 December 2001, was charged with specific public service obligations (PSOs) without any compensation, challenges the Commission decision of 16 March 2004 relating to the State aid paid by Italy to the shipping companies Adriatica, Caremar, Siremar, Saremar and Toremar (Gruppo Tirrenia) (not published in the Official Journal of the European Union), as regards in particular the provisions affecting the Naples Molo Beverello – Capri route, laid down by Article 3(1) and 3(2)(a) of the contested decision.

Official Journal of the European Union

Those provisions:

| — | authorise the aid granted to Caremar for passenger transport services by ship on the Naples Beverello – Capri route, with effect from 1 January 1992, and |
| --- | --- |

—

authorise the aid granted to Caremar for passenger transport services by ship on the Naples Beverello – Capri route, with effect from 1 January 1992, and

| — | annul aid in respect of scheduled ‘fast passenger transport’ services on the Naples Beverello – Capri route, but with effect from 1 December 2004. |
| --- | --- |

—

annul aid in respect of scheduled ‘fast passenger transport’ services on the Naples Beverello – Capri route, but with effect from 1 December 2004.

According to the applicant, the authorisation of the aid intended to compensate for the associated losses occasioned by the PSOs imposed on Caremar, a public company, is unlawful in so far as the conditions imposed by the rules are not satisfied in the present case. In that regard, it claims that there has been an infringement of Article 86(2) EC, Council Regulation (EEC) No 3577/1992 of 7 December 1992, the duty to provide a sufficient and consistent statement of reasons.

The applicant submits specifically that:

| — | on the Naples – Capri route there has always been competition from two private shipping lines (NLG and SNAV) which provide services which are very similar if not identical throughout the year; given the effect of free-market forces, the imposition of PSOs on Caremar is therefore wholly unnecessary; |
| --- | --- |

—

on the Naples – Capri route there has always been competition from two private shipping lines (NLG and SNAV) which provide services which are very similar if not identical throughout the year; given the effect of free-market forces, the imposition of PSOs on Caremar is therefore wholly unnecessary;

| — | notwithstanding that, the services provided by the two private companies have also been the subject of a contract governed by public law imposed by the Regione Campania for the purpose of imposing specific PSOs on the subject of times, prices, frequency, continuity, type of vessel and service quality, which are similar or even identical to the PSOs imposed on Caremar; |
| --- | --- |

—

notwithstanding that, the services provided by the two private companies have also been the subject of a contract governed by public law imposed by the Regione Campania for the purpose of imposing specific PSOs on the subject of times, prices, frequency, continuity, type of vessel and service quality, which are similar or even identical to the PSOs imposed on Caremar;

| — | in performing those services, Caremar incurs huge operating losses compensated, since 1974, by substantial aid defined as ‘annual financial balancing subsidies’ (pursuant to express decision of the Regione Campania, the private companies may not receive any subsidies); |
| --- | --- |

—

in performing those services, Caremar incurs huge operating losses compensated, since 1974, by substantial aid defined as ‘annual financial balancing subsidies’ (pursuant to express decision of the Regione Campania, the private companies may not receive any subsidies);

| — | since the cost of the PSOs imposed on Caremar was not fixed on the basis of a public invitation to tender, in assessing the propriety of the subsidies paid to the public company, the Commission should have analysed the associated losses by referring to and taking into consideration the operating costs of a medium-sized company supplying similar services (for example, the costs borne by the private undertakings competing on the same Naples – Capri route). |
| --- | --- |

—

since the cost of the PSOs imposed on Caremar was not fixed on the basis of a public invitation to tender, in assessing the propriety of the subsidies paid to the public company, the Commission should have analysed the associated losses by referring to and taking into consideration the operating costs of a medium-sized company supplying similar services (for example, the costs borne by the private undertakings competing on the same Naples – Capri route).

Lastly, the applicant claims that the Commission has misused its powers, in so far as it introduced in the contested decision criteria for subdividing the market which, by making a temporal distinction between the services supplied by ship and those provided by fast vessel, achieved the objective of authorising an aid scheme in favour of transport services provided by ship by Caremar, a scheme which would never otherwise have been declared compatible, given the existence of competition from the private companies which operate in conditions to a certain extent comparable with the passenger transport services.

---

(1)  Decision not yet published in the Official Journal.

1

---