WRITTEN QUESTION E-2293/99 by Reinhold Messner (Verts/ALE) to the Commission. Extension of the licence granted to the Italian company Autostrade SpA.
Date: 1999-12-13
Institutions: European Parliament, Provisional data
Subjects: EU law, Italy, award of contract, competence of the Member States, motorway, national implementing measure, restriction on competition, service concession, sustainable mobility, transport planning

8.8.2000

EN

Official Journal of the European Communities

C 225 E/89

How can the Commission accept these extensions, which make it futile to draw up an Overall
4.
Transport Plan to implement Community guidelines on shifting the modal balance and reducing motorised
traffic?

(1) Directive issued by the Ministry of Public Works, in agreement with the Ministry for the Treasury, Budget and

(4)

(3)

(2)

Economic Planning, of 20.10.1998, Protocol No 011790/Treasury Ministry.
The agreements relate to the following routes: Venice-Padua, Autostrada dei Fiori, RAV, Ativa, Turin-Milan,
Serravalle and Brennero SpA. The extensions cover periods of up to 12 years.
The law in force does not allow the licence holders or ANAS to build new sections of motorway unless they are
specifically authorised to do so by law. Law No 376 of 13.8.1975 is in fact still in force and Article 18a thereof
requires the building of new motorways, motorway sections and tunnelling to be suspended pending a
comprehensive reform of the motorway operating licence system. No such reform has taken place.
This time limit appears in all the laws dating from 1955 to the present day, and was confirmed by the recent law
on public procurement (Law 109/94, coordinated with Law 415/98). This absolute time limit is of course also valid
for licences that have been extended.
Law No 226 of 13.7.1999, Article 8a(4), states that the work is to be carried out by the operating companies and
that specific funds shall be set aside in the financial plans, which shall be brought into line within six months.
(6) OJ L 209, 24.7.1992, OJ L 199, 9.8.1993 and OJ L 268, 15.9.1989. Under Directive 89/440/EEC, public works
contracts are awarded in the ordinary way in accordance with the restricted invitation to tender procedure, while
Directive 93/37/EEC provides for a European invitation to tender for the award of construction and operation
contracts.
his sector has been awaiting reform since 1975, when the Odorisio Commission set up by the Public Works
Ministry uncovered the increasing level of indebtedness of the companies operating in the sector and the building
of new motorway sections was suspended (Law No 376 of 13.8.1975). The suspension law also provided for the
introduction of a law reforming the entire system by 1980, but no such law has been adopted.

(7)

(5)

Answer given by Mr Bolkestein on behalf of the Commission

(20 January 2000)

The Commission has started two new procedures concerning the extension of motorway licences in Italy.
The Italian authorities have been contacted to clarify various aspects of the matter. These cases will be
discussed at a forthcoming meeting with the authorities in Rome.

Furthermore, the Commission has asked all the Member States about existing circumstances regarding
motorway licences, in order to get an overall view of this problem that has significant social and economic
implications. Should infringements of Community law be detected, the Commission will not hesitate to
pursue the matter under the procedure provided for under Article 226 (ex Article 169) of the EC Treaty.

The Commission is fully committed to the promotion of (cid:145)sustainable mobility(cid:146) within the Community, by
encouraging the development of transport systems that are efficient and environment-friendly, as well as
being safe and socially acceptable. The action programme (cid:145)Sustainable mobility: perspectives for the future(cid:146)
indicates the initiatives that the Commission plans to take along these lines. However, responsibility for the
development of national framework programmes for transport infrastructure lies with the Member States.
It is the job of the Commission to ensure compliance with the relevant Community legislation.

(2000/C 225 E/089)

WRITTEN QUESTION E-2293/99

by Reinhold Messner (Verts/ALE) to the Commission

(13 December 1999)

Subject: Extension of the licence granted to the Italian company Autostrade SpA

The Italian government has approved by decree the extension of the licence granted to Autostrade SpA
from 2018 to 2038 (1), despite the negative opinions of the Court of Auditors and the Competition and
Market Regulatory Authority (2) which led the Court to register the relevant ministerial decrees subject to
reservations, a procedure which requires the Italian Parliament to give its opinion. No such opinion has
been issued (3). The reasons behind the negative opinions are the inapplicability of the generalised 20-year

C 225 E/90

Official Journal of the European Communities

EN

8.8.2000

extension given the IRI company specifically in the motorway operating licence sector, the imbalance in
the financial plan between the duration of the licence, investments, contributions and tariffs, the failure to
apply Community and national law on public procurement, particularly since the renewal of the licences
should have taken place under a procedure open to public scrutiny. Following a letter of 30 July 1998
from the European Commission to the Italian government requiring the operational risk to be taken on by
the entity to which the licence is granted, a committee of external technical experts was brought in and
made responsible for managing the award of motorway operating licences. This measure is, however, in
breach of Italian law (4), which does not allow the separation in the licence between construction and
operation, and fails to ensure that the Commission(cid:146)s requirements are met since the principle of the risk
associated with the operation of the infrastructure is not provided for. Furthermore, an attempt has been
made to justify the extension of the licence by pointing to the need to cover the unpaid costs of
infrastructure projects and other disputes; in reality, the licence provides for new investment of roughly
8 400 billion lire to upgrade the whole of the Florence-Bologna motorway when in fact, following the
government agreements of July 1996, approval has only been granted for the Aglio-Canova crossing
section and the upgrading of the Florence North-Florence South stretch of motorway. This also constitutes
a breach of the relevant national law (5). In addition, no account is being taken of the fact that an Overall
Transport Plan is in the process of being drawn up.

Does the Commission not consider that the renewal of the licence breaches the provisions of
1.
Directives 92/50/EEC, 93/37/EEC and 89/440/EEC in that no European public invitation to tender was
issued for the granting of the licences (6)?

Does it not consider that the setting up of a committee of technical experts fails to meet the

2.
requirement to apply the principle of risk associated with the operation of infrastructure?

3.
How can the Commission accept these extensions, which make it futile to draw up an Overall
Transport Plan to implement Community guidelines on shifting the modal balance and reducing motorised
traffic?

(1) On the basis of the ANAS-Autostrade agreement of 4.8.1997 and additional acts of 11.2.1999 and July 1999.
(2) Deliberations of the Court of Auditors Nos 136 of 27.10.1997 and 20/E/98 of 17.2.1998, and the opinion of the

(3)

(4)
(5)

Competition Authority issued on 22.5.1998.
It should be noted that any changes to the time limits to which the licences are subject had previously always been
made by legislative means.
Law No 463 of 21.5.1955 and legislative decree No 547 of 17.4.1948.
The law in force does not allow the licence holders or ANAS to build new sections of motorway unless they are
specifically authorised to do so by law. Law No 376 of 13.8.1975 is in fact still in force and Article 18a thereof
requires the building of new motorways, motorway sections and tunnelling to be suspended pending a
comprehensive reform of the motorway operating licence system. No such reform has taken place.

(6) OJ L 209, 24.7.1992, OJ L 199, 9.8.1993 and OJ L 268, 15.9.1989. Under Directive 89/440/EEC, public works
contracts are awarded in the ordinary way in accordance with the restricted invitation to tender procedure, while
Directive 93/37/EEC provides for a European invitation to tender for the award of construction and operation
contracts.

Answer given by Mr Bolkestein on behalf of the Commission

(20 January 2000)

The procedure concerning the extension of the Autostrade SpA licence is still pending, although a positive
solution seems to be likely. The fact is that the Italian authorities have shown complete readiness to
cooperate with the Commission and have pledged to adopt the requisite measures in compliance with
Community law.

The forecast by the independent committee responsible for the procedures for the award of public works
contracts in connection with the licence is not likely to alter the element of risk involved in the
management of the construction, since it does not affect the financial plan of the licence and is merely
an additional guarantee for opening up markets to competition.

In view of the consequences that this question may have, the Commission will continue to follow the
matter and the case will not be filed until
it is convinced that the principles of transparency, non-
discrimination and equality of treatment have been observed throughout the process.

8.8.2000

EN

Official Journal of the European Communities

C 225 E/91

The Commission is fully committed to promoting (cid:145)sustainable mobility(cid:146) within the Community, by
encouraging the development of transport systems that are efficient and environment-friendly, as well as
being safe and socially acceptable.

The action programme entitled (cid:145)Sustainable mobility: perspectives for the future(cid:146) indicates the initiatives
that the Commission plans to take along these lines.

However, responsibility for the development of national framework programmes for transport infrastruc-
ture lies with the Member States. It is the job of the Commission to ensure compliance with the relevant
Community legislation.

(2000/C 225 E/090)

WRITTEN QUESTION P-2297/99

by Dorette Corbey (PSE) to the Commission

(29 November 1999)

Subject: Gas production in the Waddenzee

The Dutch government has designated the Waddenzee nature conservation area a (cid:145)special area of
conservation(cid:146) (protected area) pursuant to the habitats directive, 92/43/EEC (1).

Is the Commission aware that the Dutch government intends to permit gas production in the

1.
Waddenzee subject to certain conditions?

2.
Is the Commission aware of the opinion of experts (including the Committee for the Environmental
Impact Assessment in 1996) that there is a distinct possibility of gas production having a major impact on
the unique conservation area of the Waddenzee? Does the Commission share the experts(cid:146) opinion?

3.
Does the Commission agree that gas production may be at variance with the obligation under the
habitats directive to protect this nature conservation area? Does the Commission feel that in this instance
there are compelling reasons of public interest which might justify gas production in the Waddenzee
pursuant to the habitats directive? Is the Commission aware of alternatives to gas exploration in the
Waddenzee?

4.
Does the Commission believe that a fresh inquiry, as suggested de facto by the Dutch government on
5 November, into the question of whether the proposed gas production involves irreparable damage is
strictly necessary given the number of inquiries that have already been conducted? What is the Commis-
sion(cid:146)s view of an inquiry into irreversible damage in the light of Article 6(3) of the habitats directive which
refers to (cid:145)significant damage?(cid:146)

(1) OJ L 206, 22.7.1992, p. 7.

Answer given by Mrs Wallstr(cid:246)m on behalf of the Commission

(16 December 1999)

1.
The Commission is aware from newspaper articles and other media that the Dutch government has
decided that the extraction of natural gas in the Waddensea can be permitted under certain conditions.
However, according to the information available to the Commission so far, this decision has to be
discussed in the Dutch parliament before it can be carried out.

The Commission has no information about the subject, so it is not able to give its opinion about the

2.
consequences of such extraction for the natural importance of the Waddensea at the moment.

3.
The Waddensea is an area that has to be protected as a special protection area in the sense of
Council Directive 79/409/EEC on the conservation of wild birds (1) and as a special area of conservation in
the sense of Council Directive 92/43/EC of 21 May 1992 on the conservation of natural habitats and of
wild fauna and flora. As far as the Commission can judge on the basis of the limited information that it
has at its disposal, an assessment in the sense of Article 6(3) of Directive 92/43/EEC should be made, if