Opinion of the Advocate General — ECLI:EU:C:2026:119
Date: 2026-02-26
Language of the case: Italian

Summary C-809/24 – 1 
Case C-809/24 
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: 
26 November 2024 
Referring court: 
Consiglio di Stato (Italy) 
Date of the decision to refer: 
22 November 2024 
Applicant and appellant: 
Trenitalia SpA 
Defendant and respondent: 
Regione Liguria 
  
Subject matter of the main proceedings 
Appeal brought against judgment No 533/2022 of the Tribunale amministrativo 
regionale per la Liguria (Regional Administrative Court, Liguria, Italy; ‘the 
TAR’) dismissing the action brought by Trenitalia SpA against, inter alia, a 
measure enacted by the Liguria Region concerning the service contract between 
that region and Trenitalia for regional rail transport for the three-year period 2015-
2017. 
Subject matter and legal basis of the request 
Interpretation of Articles 14, 93 and 106 TFEU and of Regulation (EC) 
No 1370/2007 – in particular recitals 27 and 28, Articles 1, 4, 5 and 6, and 
paragraphs 2 to 6 of the annex – in order to establish: 
(a) whether it is permissible to enter into a service contract under which, on the 
one hand, there is a total exclusion of risk on the part of an economic operator 
and, on the other hand, the economic operator in question waives its right to a 
reasonable profit, where that waiver relates to a limited period of time, in 
EN 
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anticipation of the direct award to that operator of a subsequent service contract 
for the maximum duration laid down in Regulation (EC) No 1370/2007, and 
(b) whether it is permissible to enter into a service contract that does not provide 
for separate accounting of the costs and revenues of a service that is partly of a 
commercial nature, in order to avoid overcompensation. 
Questions referred for a preliminary ruling 
‘(a) Do Regulation (EC) No 1370/2007 – in particular, the second part of 
recital 27, Articles 1(2), 4(1) and 6(1), and paragraphs 2 and 6 of the annex to that 
regulation – and the principles and objectives of EU law laid down in the relevant 
provisions of the TFEU (Articles 14, 93 and 106 in particular) preclude – 
rendering the relevant provisions ineffective – a service contract, such as the one 
at issue in the present proceedings, that, in exchange for a total absence of risk on 
the part of the economic operator, entails a freely and knowingly accepted waiver 
of the right to a reasonable profit, where that waiver covers a limited period of 
time (three years), with a view to the direct award of a subsequent service contract 
for the maximum duration laid down in Article 5(6), read in conjunction with 
Article 4(4), of Regulation (EC) No 1370/2007? 
(b) If the answer to that first question is in the affirmative, do Regulation (EC) 
No 1370/2007 – in particular, the first part of recital 27, recital 28, Articles 4(1) 
and 6(1), and paragraph 5 of the annex to that regulation – and the principles and 
objectives of EU law laid down in the relevant provisions of the TFEU 
(Articles 14, 93 and 106 in particular) preclude a service contract, such as the one 
at issue in the present proceedings, that does not provide for separate accounting 
of the costs and revenue of a service that is in part of a commercial nature, in so 
far as it is characterised by increased tariffs, in order to avoid the risk of 
overcompensation, rendering the contract ineffective and unenforceable in that 
respect?’. 
Provisions of European Union law relied on 
TFEU, in particular Articles 14, 93 and 106; 
Regulation (EC) No 1370/2007, in particular, recitals 9, 13, 27, 28 and 30, 
Articles 1(1) and (2), 2(h) and (i), 3(1), 4(1) and (4), 5(6) and 6(1) of that 
regulation, and paragraphs 2 to 6 of the associated annex; 
Communication from the Commission on interpretative guidelines concerning 
Regulation (EC) No 1370/2007 on public passenger transport services by rail and 
by road (OJ C 92 of 29 March 2014), in particular paragraph 2.2.5. 
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Provisions of European Union case-law relied on 
Judgment of the Court of Justice of 25 January 2024, Obshtina Pomorie, 
C-390/22, EU:C:2024:75. 
Provisions of national law relied on 
Articles 1362, 1363 and 1366 of the Italian Civil Code concerning the 
interpretation of contracts: Article 1362 provides that a contract shall be 
interpreted in the light of its wording and the common intention of the contracting 
parties; Article 1363 provides that a contract shall be interpreted according to a 
single uniform logic; and Article 1366 provides that a contract shall be interpreted 
in good faith. 
Decreto legislativo 19 novembre 1997, n. 422, Conferimento alle regioni ed agli 
enti locali di funzioni e compiti in materia di trasporto pubblico locale, a norma 
dell’articolo 4, comma 4, della legge 15 marzo 1997, n. 59, come modificato dal 
decreto-legge n. 5/2009, convertito dalla legge n. 33/2009 (Legislative Decree 
No 422 of 19 November 1997 on the transfer to the regions and local authorities 
of functions and tasks in the field of local public transport, in accordance with 
Article 4(4) of Law No 59 of 15 March 1997, as amended by Decree-Law 
No 5/2009, converted by Law No 33/2009). 
Decreto-legge 18 ottobre 2012, n. 179, Ulteriori misure urgenti per la crescita del 
Paese (Decree-Law No 179 of 18 October 2012 on additional urgent measures to 
guarantee the growth of the country), in particular Article 34(20), converted by 
legge n. 221/2012 (Law No 221/2012), which at the material time stated as 
follows: 
‘For local public services of economic interest, in order to ensure compliance with 
EU law, equality between operators and economy of management and in order to 
guarantee that appropriate information is provided to the entities concerned, 
contracts for services shall be awarded on the basis of a report drawn up for that 
purpose and published on the website of the entity making the award. That report 
shall set out the grounds for the award and state that the conditions laid down by 
EU law for the form of award chosen are fulfilled and shall specify the precise 
content of the public service and universal service obligations, stating the financial 
compensation where applicable.’ 
Delibera dell’Autorità di regolazione dei trasporti del 22 giugno 2015, n. 49/2015, 
Misure regolatorie per la redazione dei bandi e delle convenzioni relativi alle gare 
per l’assegnazione in esclusiva dei servizi di trasporto pubblico locale passeggeri 
e definizione dei criteri per la nomina delle commissioni aggiudicatrici e avvio di 
un procedimento per la definizione della metodologia per l’individuazione degli 
ambiti di servizio pubblico e delle modalità più efficienti di finanziamento 
(Resolution No 49/2015 of the Italian Transport Regulatory Authority of 22 June 
2015 on regulatory measures for the drafting of notices and agreements relating to 
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tenders for the exclusive award of local public passenger transport services and 
determination of the criteria for the appointment of the adjudicating committees 
and initiation of a procedure to define the methodology for identifying public 
service areas and the most efficient methods of financing), published on the 
institutional website of that authority. Measure 13 in Annex A to that resolution 
reads as follows: 
‘In the case of in-house or direct award, compensation for public service 
obligations shall be determined in accordance with the principles laid down in 
Article 4(1)(b) of Regulation (EC) No 1370/2007 and Annex I to that regulation, 
and in accordance with the procedures laid down in Statement 4.’ 
Step 7 in Statement 4 included in Annex A to that resolution is worded as follows: 
‘Addition of a reasonable profit margin, to be understood as a rate of return on 
capital that is normal for the sector in a given Member State and that takes 
account “of the risk, or absence of risk, incurred by the public service operator by 
virtue of public authority intervention” [Annex to Regulation (EC) 
No 1370/2007]. In this case also, it is important to formulate precise, detailed 
assumptions about how risks will be divided between the operator and the entity 
making the award for the entire duration of the award, taking into account the fact 
that an in-house award qualifies as a contract, since all risks are assumed by the 
latter because of the specific meaning of “similar control”, whereas in cases 
involving direct award, risks must be considered in light of the absence of a 
competitive comparison.’ 
Delibera dell’Autorità di regolazione dei trasporti del 30 marzo 2017, n. 48/2017, 
Atto di regolazione recante la definizione della metodologia per l’individuazione 
degli ambiti di servizio pubblico e delle modalità più efficienti di finanziamento, 
ai sensi dell’articolo 37, comma 3, lettera a), del decreto-legge n. 201/2011 e 
dell’articolo 37, comma 1, del decreto-legge n. 1/2012 (Resolution No 48/2017 of 
the Transport Regulatory Authority of 30 March 2017, regulatory act defining the 
methodology for identifying public service areas and the most efficient methods 
of financing, in accordance with Article 37(3)(a) of Decree-Law No 201/2011 and 
Article 37(1) of Decree-Law No 1/2012), published on the institutional website of 
that authority. Measure 4.6 in the Annex to that resolution reads as follows: 
‘In the case of scheduled public transport services, if the revenues obtained by 
applying the tariffs determined on the basis of the criteria laid down in Measure 5 
below, or other sources of revenue deriving from activities compatible with public 
transport and from the exploitation of positive network effects, do not fully cover 
the efficient costs relating to the combination of the procedures referred to in 
Measure 3 above and a reasonable profit margin, financial compensation 
calculated on the basis of European Union law and the provisions of Measures 12, 
13 and 14 of Resolution No 49/2015 of the Transport Regulatory Authority shall 
be awarded to the service operator. In this case, the service contract must at least 
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provide for the achievement of the minimum cost coverage ratio referred to in 
Article 19(5) of Legislative Decree No 422/1997.’ 
Measure 4.7 in the Annex to that resolution reads as follows: 
‘The financial compensation in the service contracts awarded according to the 
procedure permitted by law, calculated as indicated in paragraph 6 above, may be 
provided directly through public financing of the operator on the basis of the 
profitability of all the services included in the service contract, or indirectly 
through financing of the services that do not remunerate the costs incurred with 
those that guarantee revenues higher than their costs.’ 
National case-law relied on 
Judgment No 24652 of the Corte di cassazione (Supreme Court of Cassation, 
Italy) of 6 October 2008, which holds that, in accordance with Article 1366 of the 
Civil Code, contracts must be interpreted according to subjective good faith, and 
thus in the light of the requirements of social solidarity. 
Orders of the Court of Cassation No 32786 of 8 November 2022, No 12082 of 
10 June 2015 and No 2759 of 5 February 2008, according to which, in accordance 
with Article 1362 of the Civil Code, when interpreting contracts, the court must 
refer to the literal meaning of their clauses and may apply further criteria for 
interpretation only where those clauses are ambiguous. 
Order No 25090 of the Court of Cassation of 9 November 2020, which 
emphasises that, in accordance with Article 1363 of the Civil Code, contracts must 
be interpreted by examining their clauses as a whole and taking into account the 
conduct of the contracting parties, even after the contracts have been concluded. 
Succinct presentation of the facts and procedure in the main proceedings 
1 In 2010, in accordance with Legislative Decree No 422/1997, as amended by 
Decree-Law No 5/2009, the Liguria Region (‘the Region’) and Trenitalia SpA 
(‘Trenitalia’) entered into a contract relating to the regional rail transport service 
(‘the service at issue’) valid for the years 2009 to 2014 (‘the 2009-2014 service 
contract’). The 2009-2014 service contract provided, in particular, that the Region 
would pay Trenitalia a fee determined in such a way as to compensate for the 
costs incurred by Trenitalia in providing the service at issue. 
2 Furthermore, the 2009-2014 service contract stipulated that the contract could be 
renewed for a further six years, subject to certain conditions. 
3 In its delibera n. 570 del 27 marzo 2015 (Resolution No 570 of 27 March 2015), 
the Region affirmed the need to renew the 2009-2014 service contract and, after 
referring to the provisions of Regulation (EC) No 1370/2007, mentioned the 
conclusion of an understanding between the Region and Trenitalia regarding the 
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renewal for the continuation of the contractual relationship. According to 
Resolution No 570/2015, this understanding provided in particular for the renewal 
of the 2009-2014 service contract for six years, until 31 December 2020, with a 
possible extension for a further three years, in accordance with Article 4(4) of 
Regulation No 1370/2007. 
4 The Region then entered into an agreement with Trenitalia on 22 April 2015 (‘the 
2015 agreement’) in which the parties established the conditions for the renewal 
of the 2009-2014 service contract. 
5 Despite the 2015 agreement, the Region and Trenitalia failed to conclude the 
renewal contract within the deadline, which was initially set as 31 October 2015 
and subsequently extended to 31 October 2016. 
6 Because the 2009-2014 service contract was not renewed within the prescribed 
time limit, the Region and Trenitalia concluded an agreement renewing that 
contract for the period 2015-2017 on 10 December 2016 (the ‘2015-2017 renewal 
agreement’) in order to guarantee the continuity of the service at issue. The 2015-
2017 renewal agreement was intended to regulate the service for the three-year 
period from 2015 to 2017, pending a subsequent contract by which the Region 
would directly award Trenitalia a contract to operate the service at issue for 
15 years from 2018, and thus for the maximum period laid down in Regulation 
(EC) No 1370/2007. 
7 By delibera n. 1130/2016 (Resolution No 1130/2016), the Region approved the 
2015-2017 renewal agreement and at the same time initiated the procedure for the 
direct award of the contract to operate the service at issue for the maximum period 
of 15 years, in accordance with Regulation (EC) No 1370/2007. 
8 By Resolution No 1130/2016, the Region and Trenitalia agreed that, for the three-
year period from 2015 to 2017, Trenitalia would waive its return on net invested 
capital and thus zero out the negative balance for the three-year period in question 
and achieve economic balance of the contract by covering the financial charges. 
9 The 2015-2017 renewal agreement contained the same conditions as the 2009-
2014 service contract, but with a different method for determining the fee. In fact, 
the 2015-2017 renewal agreement stipulated that the Region would pay Trenitalia 
an annual fee based on the data indicated in a three-year statement for 2015-2017 
annexed to that renewal agreement. This three-year statement for 2015-2017 
consists of a ‘statutory’ income statement, which merely reports the costs and 
revenues for each year and the overall net result for the three-year period from 
2015 to 2017. According to the referring court, the economic and financial 
equilibrium of that three-year period is ensured by the equal relationship between 
the revenue earned on the one hand and the costs incurred on the other. 
10 In 2018, Trenitalia sent the Region the statements containing the accounting data 
for 2016 and 2017. These documents differed from the 2015-2017 three-year 
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statement annexed to the 2015-2017 renewal agreement in that they included 
recognition of the return on net invested capital. 
11 In a memorandum from March 2020, Trenitalia asserted that the Region’s 
argument whereby that undertaking had waived its right to a return on net invested 
capital was erroneous and in conflict with Regulation (EC) No 1370/2007. 
12 Following meetings and an exchange of correspondence with Trenitalia, the 
Region adopted delibera n. 444/2021 (Resolution No 444/2021) (‘the resolution 
contested at first instance’), which requires that Trenitalia pay the Region the 
profits deriving from the operation of the service at issue for the three-year period 
from 2015 to 2017. The resolution contested at first instance states that those 
profits accrue to the Region, since the latter bore the entire risk of any losses 
relating to the operation of the service at issue for the three-year period in 
question. According to the resolution contested at first instance, Trenitalia in fact 
waived its right to a return on net invested capital in order to gain exemption from 
any risk arising from that operation. 
13 Trenitalia brought an action before the Regional Administrative Court against, in 
particular, Resolution No 444/2021. That action was dismissed by judgment 
No 533/2022 of the Regional Administrative Court (‘the judgment under appeal’). 
Trenitalia appealed that judgment before the Consiglio di Stato (Council of State), 
the referring court. 
The decision at first instance 
14 In its judgment at first instance, which is currently being appealed, the Regional 
Administrative Court (TAR) noted, in particular, that the 2015-2017 renewal 
agreement and Resolution No 1130/2016 had been adopted after the first two 
years of the three-year period from 2015 to 2017 had almost elapsed and had been 
accompanied by the commencement of the procedure for the direct award of the 
service at issue for the maximum period of 15 years, in accordance with 
Regulation (EC) No 1370/2007. According to that court, given these 
circumstances, the Region and Trenitalia had decided to determine the fee for the 
service at issue for the three-year period from 2015 to 2017 in such a way as to 
ensure an overall net economic result of zero at the end of that three-year period. 
15 According to the judgment under appeal, Trenitalia and the Region had agreed 
that the former would benefit from full coverage of the costs of the service at issue 
and that the latter would receive any profits deriving from its operation. 
16 In support of this conclusion, the TAR noted that the 2015-2017 renewal 
agreement had the objective of achieving financial equilibrium in the operation of 
the service at issue for the three-year period from 2015 to 2017 and stipulated that, 
at the end of that three-year period, that operation would achieve an overall net 
result of zero. 
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17 The judgment under appeal held that during the three-year period in question, the 
service at issue had generated profits, since it included the ‘Cinque Terre Express’ 
service, which was a commercial venture and highly profitable. 
18 According to the TAR, the characteristics of the ‘Cinque Terre Express’ service 
meant that Trenitalia could not retain the profits relating to the service at issue for 
the three-year period from 2015 to 2017, since it was necessary to prevent that 
undertaking from using those profits to subsidise activities of a commercial nature 
that were highly profitable. 
19 The judgment under appeal also held that the interpretation of the 2015-2017 
renewal agreement according to which Trenitalia had waived its right to obtain 
profits did not imply an excessive imbalance in favour of the Region. In fact, that 
waiver covered a limited period of time and Trenitalia benefited from full 
coverage of the costs of the service at issue and the prospect of a subsequent direct 
award of the operation of that service for a period of 15 years, a contract that in 
fact was subsequently awarded. 
The essential arguments of the parties in the main proceedings 
20 In the proceedings at first instance, Trenitalia argued, in particular, that it had not 
expressly waived its return on net invested capital, and was therefore entitled to 
retain the profits from the service at issue, since they constituted a reasonable 
profit. On this point, Trenitalia submitted, in essence, that the 2015-2017 renewal 
agreement, although exempting it from the risk of losses relating to the operation 
of the service at issue for the three-year period from 2015 to 2017, did not, 
however, prohibit it from making profits from those operations. 
21 The Region disputed the applicant’s arguments. 
22 In the proceedings before the referring court, Trenitalia submits, inter alia, that the 
resolution contested at first instance required it to pay to the Region the profits 
relating to the service at issue for the three-year period from 2015 to 2017, on the 
basis of the finding that those profits were derived from the operation of a specific 
rail transport service, known as the ‘Cinque Terre Express’, a commercial service 
providing special fares for tourists. 
23 Trenitalia argues, first, that the judgment under appeal erred in finding that that 
undertaking could not retain the profits deriving from the ‘Cinque Terre Express’ 
service because, on the one hand, the commercial nature of that service precluded 
a right to a return on net invested capital and, on the other hand, Trenitalia had 
waived its right to receive a reasonable profit, corresponding, in the present case, 
to the return on net invested capital. According to Trenitalia, it was not 
demonstrated at first instance that the profits relating to the service at issue for the 
three-year period from 2015 to 2017 were linked to the ‘Cinque Terre Express’ 
service. 
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24 Second, Trenitalia submits that, contrary to the findings of the judgment under 
appeal, the ‘Cinque Terre Express’ service does not constitute a commercial 
activity, but rather a public service obligation falling within the scope of the 2015-
2017 renewal agreement. In this regard, Trenitalia argues that both the European 
Commission’s communication on the interpretation of Regulation (EC) 
No 1370/07 and the Italian Transport Regulatory Authority’s Resolution 
No 48/2017 permit rail transport service contracts to provide for a combination of 
services with different levels of profitability. 
25 Third, according to Trenitalia, the interpretation of the 2015-2017 renewal 
agreement applied in the judgment under appeal, according to which Trenitalia 
waived its return on net invested capital, is contrary to European Union law and in 
particular Articles 4 and 6 of Regulation (EC) No 1370/2017 and the annex to that 
regulation. In fact, the 2015-2017 renewal agreement does not contain any waiver 
of Trenitalia’s return on net invested capital, whereas such a waiver is mentioned 
in Resolution No 1130/2016. However, this resolution was an internal, unilateral 
measure enacted by the Region, and does not therefore affect the interpretation of 
the 2015-2017 renewal agreement. 
26 Trenitalia further argues that its waiver of a return on net invested capital was not 
even indicated in the three-year statement for 2015-2017 attached to the 2015-
2017 renewal agreement. Trenitalia accepted that the 2015-2017 renewal 
agreement contained the three-year statement for 2015-2017, which did not 
indicate a return on net invested capital and reported an overall economic result of 
zero for the three-year period in question, in consideration of the planning 
requirements expressed by the Region. 
27 With regard to the three-year statement for 2015-2017, Trenitalia also submits that 
the determination of the fee for the service at issue was to be made at the end of 
the three-year period from 2015 to 2017 and that the 2015-2017 renewal 
agreement was based on Regulation (EC) No 1370/2007, which establishes that 
the fee for a service contract such as the one at issue must include a reasonable 
profit. Moreover, according to Trenitalia, the return on net invested capital, 
although not provided for in the three-year statement for 2015-2017, should have 
been included in the fee if it was necessary to achieve an economic balance for the 
service at issue. 
28 Fourth, Trenitalia finds fault with the judgment under appeal on the ground that 
that judgment failed to take into account the fact that the undertaking’s alleged 
waiver of its right to a reasonable profit should have been made in writing, 
whereas such a written waiver was not provided. 
29 Fifth, if the referring court were to uphold the interpretation of the 2015-2017 
renewal agreement argued by the Region, according to which Trenitalia has 
waived its return on net invested capital, the resolution contested at first instance 
would infringe Articles 4 and 6 of Regulation (EC) No 1370/2017 and the annex 
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to that regulation in so far as it would introduce economic treatment worse than 
that provided for by that regulation. 
30 The Region disputes the appellant’s arguments and submits that the profits 
relating to the operation of the service at issue are derived from the ‘Cinque Terre 
Express’ service, which constitutes a commercial activity and does not fall within 
the scope of the public rail transport service. 
31 According to the Region, Trenitalia’s waiver of its right to a reasonable profit is 
clear from the three-year statement for 2015-2017 annexed to the 2015-2017 
renewal agreement, which established that during the three-year period in question 
the economic equilibrium of the service at issue would be ensured by the equal 
relationship between the revenue earned and the costs incurred, and that, 
consequently, the net result at the end of the three-year period would be zero. 
32 The Region argues that Trenitalia’s waiver of its right to a reasonable profit does 
not infringe European Union law or, specifically, Regulation (EC) No 1370/2007, 
in so far as paragraph 6 of the annex to that regulation provides that reasonable 
profit must take account of the lack of risk assumed by the public service operator 
concerned by virtue of public authority intervention. Accordingly, Trenitalia could 
legitimately have waived its right to a reasonable profit since that waiver related 
to a limited period of time and the Region had assumed all the risks relating to the 
service at issue, guaranteeing Trenitalia a balance between the costs and the 
revenue deriving from that service. 
Succinct presentation of the reasoning in the reference for a preliminary 
ruling 
33 The referring court agrees with the considerations set out in the judgment under 
appeal, according to which the 2015-2017 renewal agreement, on the one hand, 
guaranteed Trenitalia full coverage of the costs deriving from the service at issue, 
so that that undertaking was relieved of all risk. On the other hand, the 2015-2017 
renewal agreement excluded the possibility that Trenitalia could make a 
reasonable profit. 
34 As noted by the referring court, the 2015-2017 renewal agreement established that 
the Region would pay Trenitalia a fee covering the costs deriving from the service 
at issue. Consequently, a reduction in the costs incurred by Trenitalia or an 
increase in the revenue earned by that undertaking in the context of the service at 
issue would have entailed a reduction in the fee to be paid by the Region, since the 
2015-2017 renewal agreement was intended to balance the costs and revenue of 
the service at issue. 
35 According to the referring court, the interpretation of the 2015-2017 renewal 
agreement adopted in the judgment under appeal is confirmed by national 
legislation and case-law concerning the interpretation of contracts, which lay 
down certain criteria applicable in the present case. First, a contract must be 
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interpreted in the light of the common intention of the contracting parties and their 
overall conduct, even after the contract has been concluded. Second, the clauses of 
a contract must be interpreted according to a single, uniform logic. Third, a 
contract must be interpreted in accordance with the principle of good faith. 
36 The referring court does not agree with Trenitalia’s argument disputing that it has 
waived its right to a reasonable profit and stating that that waiver results solely 
from Resolution No 1130/2016, which constitutes nothing more than a unilateral 
measure enacted by the Region. According to that court, since the 2015-2017 
renewal agreement expressly mentions Resolution No 1130/2016 and incorporates 
its content, that resolution must necessarily have been known and agreed by 
Trenitalia. 
37 The referring court considers that the Region and Trenitalia entered into the 2015-
2017 renewal agreement with the intention of concluding a ‘bridging’ renewal 
contract, namely a contract intended to govern the service at issue only for a 
transitional period – the three-year period from 2015 to 2017 – between the 
previous 2009-2014 service contract and the future direct award of the service at 
issue to Trenitalia. 
38 According to the referring court, the three-year statement for 2015-2017 annexed 
to the 2015-2017 renewal agreement forms an integral part of that agreement and 
is equally binding on the Region and Trenitalia. This statement provided for the 
economic equilibrium of the service at issue for the three-year period in question, 
such that the difference between revenues and costs would be zero. On the one 
hand, coverage of the costs relating to the service at issue was thus ensured, while 
on the other hand, no provision was made for recognition of reasonable profit. 
39 The referring court notes that, given the context in which the 2015-2017 renewal 
agreement was adopted, Trenitalia could not rely on recognition of a reasonable 
profit. Indeed, in the present case, the non-recognition of a reasonable profit was 
justified by the fact that the three-year period from 2015 to 2017 constituted only 
a transitional (bridging) period. 
40 The referring court also notes that the 2015-2017 renewal agreement was adopted 
in December 2016, after the first two years of the three-year period had almost 
entirely elapsed. It follows that, as regards the three-year statement for 2015-2017 
annexed to that act, Trenitalia was not aware of the amount of the reasonable 
profit derived from the service at issue only in relation to 2017. 
41 In support of that conclusion, the referring court notes that Article 2 of the 2015-
2017 renewal agreement specifies the categories of costs relating to the service at 
issue to be covered by the Region, but makes no mention of reasonable profit. 
42 The behaviour of Trenitalia after the 2015-2017 renewal agreement was 
concluded also confirms the Region’s interpretation whereby Trenitalia knowingly 
waived its right to a reasonable profit. In fact, in one of its 2018 communications 
concerning the income statement for the service at issue for 2016, Trenitalia 
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recognised that this account, unlike the three-year statement for 2015-2017, 
included a return on net invested capital. Therefore, according to the referring 
court, Trenitalia acknowledged that, on that occasion, it had introduced the return 
on net invested capital, which was not provided for in the 2015-2017 renewal 
agreement. 
43 In order to rule on the dispute in the main proceedings, the referring court 
considers it relevant to determine whether the 2015-2017 renewal agreement 
complies with Regulation (EC) No 1370/2007, first, as regards the possibility of 
waiving the right to a reasonable profit and, second, as regards the failure to 
provide for separate accounting for revenue relating to a service that is partly of a 
commercial nature, such as the ‘Cinque Terre Express’ service in the present case. 
44 On that point, the referring court notes that the 2015-2017 renewal agreement 
does not provide for separate accounting of the revenues and costs of the ‘Cinque 
Terre Express’ service separate from those relating to the service at issue. The 
referring court has doubts as to whether, in order to avoid the risk of 
overcompensation – which is prohibited by Regulation (EC) No 1370/2007 – in 
the context of a transport service, the costs and revenues relating to certain partly 
commercial and highly profitable services should be accounted for separately 
from the costs and revenues relating to other services that do not have those 
characteristics.