Judgment;Summary — ECLI:EU:C:2022:794
Date: 2022-10-13
Language of the case: Italian
Court formation: Tenth Chamber
Subject matter: State aids;Competition;Agreements, decisions and concerted practices;Right of establishment;Approximation of laws;Freedom to provide services;Transport;Exclusive agreements
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-437/21 – 1 
Case C-437/21 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
16 July 2021 
Referring court:  
Consiglio di Stato (Italy) 
Date of the decision to refer:  
21 April 2021 
Appellant:  
Liberty Lines SpA 
Respondent:  
Ministero delle Infrastrutture e dei Trasporti 
  
Subject matter of the main proceedings 
Appeal against a judgment of the Tribunale amministrativo regionale per il Lazio 
(Regional Administrative Court, Lazio; ‘the TAR Lazio’), which dismissed the 
action brought by the company Liberty Lines seeking annulment of the decision 
by which the Ministero delle Infrastrutture e dei Trasporti (Italian Ministry of 
Infrastructure and Transport), upon the expiry of its contract with Liberty Lines, 
awarded the maritime connection service covered by that contract to another 
company without issuing the appropriate invitation to tender. 
Subject matter and legal basis of the reference 
An interpretation of the principles of EU law on the free movement of services 
and the protection of competition, in particular Articles 101, 102, 106 and 107 
TFEU, Regulation (EEC) No 3577/92 and Directive 2014/25/EU, is sought 
pursuant to Article 267 TFEU. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-437/21 
 
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Question referred for a preliminary ruling 
‘Does [European Union] law, and in particular the principles of free movement of 
services and of opening up to competition as far as possible in the field of public 
service contracts, preclude a legal provision such as Article 47(11-bis) of decreto 
legge n. 50 del 24 aprile 2017 (Decree-Law No 50 of 24 April 2017), converted 
into legge 21 giugno 2017, n. 96 (Law No 96 of 21 June 2017), which: 
- treats high-speed maritime passenger transport between the ports of Messina and 
Reggio Calabria as equivalent to rail transport by sea between the Italian mainland 
and Sicily, as provided for in Article 2(e) of decreto del Ministero dei trasporti e 
della navigazione n. 138 T del 31 ottobre 2000 (Decree No 138 T of the Italian 
Ministry of Transport and Navigation of 31 October 2000), or at least allows them 
to be treated as equivalent by law; 
- reserves or appears capable of reserving for Rete ferroviaria italiana SpA the rail 
connection service by sea between Sicily and the Italian mainland, even where 
this involves the use of high-speed vessels?’ 
Provisions of European Union law relied on 
Articles 101, 102, 106 and 107 TFEU. 
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 1992 L 364, p. 7). 
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 2007 L 315, 
p. 1). 
Directive 2014/25/EU of the European Parliament and of the Council of 
26 February 2014 on procurement by entities operating in the water, energy, 
transport and postal services sectors and repealing Directive 2004/17/EC (OJ 2014 
L 94, p. 243): recital 7. 
Judgment of the Court of Justice of 24 October 2019 in Case C-515/18. 
Provisions of national law relied on 
Decreto legge del 24 aprile 2017, n. 50, disposizioni urgenti in materia finanziaria, 
iniziative a favore degli enti territoriali, ulteriori interventi per le zone colpite da 
eventi sismici e misure per lo sviluppo (Decree-Law No 50 of 24 April 2017 
containing urgent provisions on finance, local authority initiatives, additional 
measures for areas affected by seismic events and development measures) 
(Gazzetta ufficiale della Repubblica italiana No 95 of 24 April 2017 – Ordinary 
LIBERTY LINES 
 
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Supplement No 20), converted, with amendments, into legge del 21 giugno 2017, 
n. 96 (Law No 96 of 21 June 2017); in particular Article 47(11-bis): ‘In order to 
improve the flexibility of passenger rail connections between Sicily and the Italian 
mainland, the rail connection service by sea referred to in Article 2(1)(e) of 
Decree No 138 T of the Italian Ministry of Transport and Navigation of 
31 October 2000 can also be provided using high-speed vessels according to an 
operating model based on the rail transport service to and from Sicily, particularly 
on the outbound and inbound routes, Messina-Villa San Giovanni and Messina-
Reggio Calabria, to be implemented within the framework of the resources 
provided under current legislation for the Programme Contract (services) between 
the Italian Government and the company Rete Ferroviaria Italiana SpA and 
without prejudice to the services established therein.’ 
Decreto del Ministero dei Trasporti e della Navigazione, del 31 ottobre 2000, n. 
138 T, recante rilascio a Ferrovie dello Stato ‒ Società Trasporti e Servizi per 
Azioni la concessione ai fini della gestione dell’infrastruttura ferroviaria nazionale 
(Decree No 138 T of the Italian Ministry of Transport and Navigation of 
31 October 2000, awarding Ferrovie dello Stato – Società Trasporti e Servizi per 
Azioni the operating concession for the national rail infrastructure). In particular 
Article 2(e), which specifies that the concession included ‘the rail connection by 
sea between the Italian mainland and Sicily and Sardinia, respectively’. 
Succinct presentation of the facts and the procedure in the main proceedings 
1 Following an invitation to tender issued by the Ministero delle Infrastrutture e dei 
Trasporti (Italian Ministry of Infrastructure and Transport), Liberty Lines was 
awarded the high-speed maritime passenger connection service between the ports 
of Messina and Reggio Calabria, in the Strait of Messina, from 1 October 2015 to 
30 September 2018. On 14 September 2018, Liberty Lines notified the competent 
ministry of its interest in extending the service concession for one year, an option 
provided for in the original contract. However, that notification had not been 
answered when, with effect from 1 October 2018, the maritime connection service 
in question was awarded to the company Bluferries, wholly owned by Rete 
Ferroviaria Italiana (RFI), which was already responsible for providing the same 
service on the Messina-Villa San Giovanni route. 
2 Having asked in vain to see the case documents, on 10 October 2018 Liberty 
Lines brought an action against the competent ministry before the TAR Lazio for 
annulment of the presumed award of the service to Bluferries. Liberty Lines 
justified its claim on the grounds that awarding the service directly (without a 
tendering procedure) was unlawful since there was no emergency situation – any 
urgency being due to the fact that the same administration had failed to organise a 
Community tendering procedure in time. 
3 On 8 November 2018, the Italian Ministry of Infrastructure and Transport sent 
two documents to Liberty Lines. The first, memorandum No 31344 of 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-437/21 
 
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26 September 2018, addressed to RFI, stated that: ‘Given the provisions of 
Article 47(11-bis) of Decree-Law No 50 of 24 April 2017, … it has been decided 
that the flexibility of passenger rail connections between Sicily and the Italian 
mainland, which is a fundamental condition of that legal provision, can be ensured 
by including that connection in the Programme Contract (services) between the 
State and Rete Ferroviaria Italiana SpA’ and, accordingly, RFI was invited to 
‘provide, from 1 October 2017, in accordance with the abovementioned 
provisions, high-speed maritime passenger services between the ports of Messina 
and Reggio Calabria’. 
4 The second document was RFI’s reply to that memorandum, dated 8 October 
2018, in which the company affirmed in particular that ‘in order to maintain a 
continuous service on the Reggio Calabria-Messina route from 1 January 2019, it 
is requested that the Ministry convene a special meeting as soon as possible to 
discuss the issues arising from the continuous award of the service in question …, 
in addition to the funding arrangements for the service, which will in the 
meantime be provided by updating the Programme Contract’. 
5 After being sent those two documents, Liberty Lines submitted further complaints 
in support of its action before the Regional Administrative Court, alleging – as far 
as EU law is concerned –infringement of the rules protecting competition and the 
free market. Nevertheless, the TAR Lazio dismissed Liberty Lines’ action, 
affirming that Directive 2014/25/EU and Regulation No 1370/2007 allowed 
public service contracts for rail transport to be awarded directly, without a 
tendering procedure. 
The essential arguments of the parties in the main proceedings 
6 Liberty Lines has lodged various complaints before the Consiglio di Stato 
(Council of State, Italy) against the judgment of the TAR Lazio. Of these, the 
following are particularly relevant: (1) the TAR Lazio had not taken account of 
the fact that Bluferries, using hydrofoils for its service, was unable to transport rail 
wagons, and therefore could not meet the condition that had to be met in order for 
its services to be considered strictly related to rail services and thus qualify for 
special treatment; (2) the reference to recital 7 of Directive 2014/25/EU was 
unjustified, both because it lacked any binding legal force, and because it applied 
to different circumstances, namely those in which the Member State decided to 
provide the railway service itself; (3) equally unjustified was the reference to the 
judgment of the Court of Justice of 24 October 2019 in Case C-515/18, given that 
that case concerned the direct award of a public service contract for the transport 
of passengers by rail, whereas this case involved the high-speed transport of 
passengers by hydrofoil; (4) the contract was awarded without a call for tenders 
and without any of the checks which are necessary to ensure that recourse to such 
a procedure is appropriate; (5) Liberty Lines insists that the emergency situation 
was artificially created by the administration; (6) the memorandum with which 
RFI replied to the Ministry disproved the fact that the change of contractor would 
LIBERTY LINES 
 
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take place without additional costs, and there was no evidence that the original 
contract could not be extended owing to a lack of funds; (7) certain aspects of the 
case were clearly contrary to EU rules governing tendering procedures and 
protecting equal treatment, free competition, transparency, publicity and 
proportionality. 
7 The Italian Ministry of Infrastructure and Transport and RFI reject all of the 
applicant’s complaints. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
8 In making its request for a preliminary ruling, the referring court expresses strong 
doubts as to the compatibility with EU law of Article 47(11-bis) of Decree-Law 
No 50/17 – the main legal provision in the present case – on the following three 
grounds in particular: (1) that legal provision unjustifiably blocks market access 
and prevents the rules on public procurement from applying to the award of the 
high-speed maritime passenger transport service between the ports of Messina and 
Reggio Calabria, contrary to Regulation No 3577/92; (2) indeed it seems to confer 
on RFI (the company set up by the concession holder Ferrovie dello Stato – 
Società Trasporti e Servizi per Azioni to manage the national rail infrastructure), a 
special or exclusive right to operate the high-speed maritime passenger service 
between the ports of Messina and Reggio Calabria; (3) it also appears to confer a 
State aid measure on RFI, distorting or threatening to distort competition, 
especially since the provision in question is not limited to the time needed to 
secure the funding necessary to issue the public invitation to tender for the award 
of the contract.