2003/87/EC: Commission Decision of 13 November 2002 concerning the aid granted to fishermen following the suspension of fishing in the Tyrrhenian Sea and the Ionian Sea in 2000 (notified under document number C(2002) 4362) (Text with EEA relevance)
Date: 2002-11-13
Institutions: European Commission
Subjects: Ionian Sea, Italy, State aid, Tyrrhenian Sea, control of State aid, fisherman, fishing industry

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COMMISSION DECISION

of 13 November 2002

concerning the aid granted to fishermen following the suspension of fishing in the Tyrrhenian
Sea and the Ionian Sea in 2000

(notified under document number C(2002) 4362)

(Only the Italian text is authentic)

(Text with EEA relevance)

(2003/87/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European
Community, and in particular the first subparagraph of Article
88(2) thereof,

Having regard to Council Regulation (EC) No 659/1999 of 22
March 1999 laying down detailed rules for the application of
Article 93 of
the EC Treaty, and in particular Article 14
thereof (1),

Italian authorities were asked on four occasions,
in
letters dated 23 November 2000 and 20 February, 30
May and 5 July 2001,
to provide supplementary
to which they did by letters dated 5
information,
February, 2 May, 31 May and 24 July 2001. The
information presented included,
in the letter of 5
February 2001, Law No 343 of 23 November 2000
(converting Decree-Law No 265 into law), Decrees of
the Minister for Agriculture and Forestry of 30 June, 19
July and 3 August 2000 and containing various
implementing provisions for the technical suspensions.

Having called on interested parties to submit their comments
pursuant to the first subparagraph of Article 88(2) and having
regard to their comments,

(3)

Whereas:

I

PROCEDURE

(1)

By letter dated 26 September 2000,
registered as
received on 28 September 2000, the Italian Permanent
Representation to the European Union forwarded to the
Commission a draft Decree-Law introducing a number
of emergency measures in the transport and fisheries
sectors, including in Article 5 an accompanying social
measure in favour of fishermen in the maritime regions
from Imperia to Reggio Calabria and from Crotone to
Gallipoli, excluding those covered by the maritime
districts of Castro, Tricase, Santa Maria di Leuca and
Otranto, as a result of
the (cid:145)technical suspension(cid:146) of
fishing in the Tyrrhenian Sea and the Ionian Sea in
summer 2000. This was registered as notified aid under
the number N 159D/2000.

(4)

(5)

(2)

Subsequently, by letter dated 2 October 2000,
the
Italian authorities forwarded the text of the Decree-Law
(No 265 of 26 September 2000), published in the
Italian Official Gazette of 27 September 2000. The

since

The Decreer of 3 August 2000, containing the practical
arrangements for the compensation,
took immediate
there was no provision
effect. Furthermore,
requiring prior approval by the Commission for the Law
and the implementing provisions to enter into force, the
measures could be implemented directly. For
that
reason, the matter was transferred on 9 February 2001
to the register of non-notified aids, under the number
NN 15/2001.

By letter C(2001) 3463 final of 13 November 2001 the
Commission informed the Italian Government of
the
decision to initiate the formal
investigation procedure
provided for in Article 88(3) of the EC Treaty in respect
of
Italian authorities
concerned. The
presented their comments by letter of 20 December
2001.

the measure

of

Journal

The Commission decision to initiate the procedure was
the European
published in the Official
Communities on 29 January 2002 (2). The Commission
called on interested parties to submit their comments on
the measures concerned and received a joint letter from
Federcoopesca, Lega Pesca and AGCI Pesca on 27
February 2002. This letter was forwarded to the Italian
authorities in accordance with Article 6(2) of Regulation
(EC) No 659/1999.

(1) OJ L 83, 27.3.1999, p. 1.

(2) OJ C 25, 29.1.2002, p. 9.

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II

type adopted for subsequent years will be examined in
the light of the Guidelines currently in force.

DESCRIPTION OF THE MEASURE

(6)

(7)

(8)

In accordance with Article 5 of Law No 343 of 23
November 2000 an accompanying social measure was
the
introduced in favour of
suspension of fishing to cover the minimum legal wage
for crew members and the social costs payable by
shipowners in respect of crews. As specified in the
above Law, the aim of the suspension was to encourage
an increase in fish stock biomass.

affected by

vessels

The measure concerns vessels practising pelagic trawling
(la pesca pelagica a strascico and/or volante). Fishing was
suspended from 2 September to 1 October 2000 in the
Tyrrhenian Sea (vessels belonging to maritime districts
from Imperia to Reggio Calabria) and from 3 July to 1
August 2000 in the Ionian Sea (vessels belonging to
maritime districts
to Gallipoli, not
from Crotone
including those belonging to the maritime areas of
Castro, Tricase, Santa Maria di Leuca and Otranto).

Suspension is mandatory in the maritime districts where
the head of the district has taken a decision to that
effect, after consulting the Advisory Committee for Sea
Fisheries.
not
mandatory, shipowners who so wish may apply the
suspension measure and qualify for the accompanying
social measure.

districts where

suspension

In

is

(9)

The budget allocation for this measure was EUR 1,5
million.

Grounds for initiating the formal investigation
procedure

(10)

The aid measure was examined in the light of
the
Guidelines for the examination of State aid to fisheries
and aquaculture (hereafter called the Guidelines) adopted
in 1997 (3)
in force on the date on which the aid
measure was introduced. This arises from point 3.4 of
the currently applicable Guidelines (4) under which
(cid:145)unlawful aid(cid:146) within the meaning of Article 1(f) of
Regulation (EC) No 659/1999, i.e. new aid implemented
in breach of Article 8(3) of the EC Treaty, is appraised
in accordance with the Guidelines prevailing at the time
when the aid is granted. However, measures of the same

(3) OJ C 100, 27.3.1997, p. 12.
(4) OJ C 19, 20.1.2001, p. 7.

(11)

(12)

(13)

(14)

The Commission considered that the measure had the
effect of
reducing the production costs which the
undertakings concerned would normally have to bear
and had the character of an operating aid. According to
the
in point 1.2 of
the general principles set out
Guidelines,
in the fisheries and
type of aid,
aquaculture sector,
is incompatible with the common
market save in properly justified circumstances.

this

In accordance with the first paragraph of point 2.2.2 of
the temporary laying-up of
the Guidelines, aid for
fishing vessels (cessation of
fishing) may be deemed
compatible with the common market if it is intended to
offset part of
income associated with a
temporary cessation measure introduced as a result of
unforeseen and non-recurring circumstances attributable
to biological causes.

the loss of

the

similar

fishing.

addition,

such as
In

fishing. Furthermore,

The suspensions in question do not appear to have been
introduced as a result of unforeseen circumstances. The
information provided by the Italian authorities did not
show that there had been an occurrence such as, for
example, a natural disaster or other exceptional event
justifying the suspension of
the
information did not reveal a sudden and unforeseen
collapse in fish stocks requiring the adoption of specific
temporary
stock recovery measures
suspension
had
Italy
of
implemented compensation measures in previous years
under
temporary suspension measures. The
Commission did not raise any objections in 1999 to
measures
the number N 419/99
covered by letter SG(99) D/7551 of 17 September 1999
to the Italian Government; in 1998 to measures under
the number NN 101/98 covered by letter SG(99)
D/1581 of 23 June 1999; and in 1997 to measures
under the number NN 99/97 covered by letter SG(97)
D/6770 of 6 August 1997. It can be deduced therefore
that the compensation measure adopted for 2000 was
not non-recurring. The measure could not therefore be
deemed compatible with the
in
accordance with the first paragraph of point 2.2.2 of
the Guidelines.

common market

examined under

Furthermore, in accordance with the second paragraph
of point 2.2.2 of the Guidelines, the Commission can
regard an aid scheme for the temporary cessation of
fishing to be compatible with the common market after
conducting a specific examination of the measure (on a
case-by-case basis). The Commission would therefore
of
consider
have

been able

conditions

the

to

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if

as

those

particularly

attributable

compatibility to have been met
the temporary
suspension had taken place in circumstances similar to
those described in Article 16(1) of Council Regulation
(EC) No 2792/1999 laying down the detailed rules and
arrangements regarding Community structural assistance
in the fisheries sector (5), i.e. in the event of unforeseen
circumstances,
to
biological factors (subparagraph (a)) or where a plan is
introduced for the recovery of a resource threatened
with exhaustion (subparagraph (c)) or,
regards
in Article 12(6) of that
measures to assist fishermen,
Regulation, under which accompanying social measures
can be introduced in the framework of plans for the
fish stocks. The temporary suspension
protection of
measure under
to
correspond to any of these cases, given that the ground
of an unforeseen event has now been excluded and,
secondly, that the Italian authorities have not provided
any information from which it can be deduced that the
temporary suspension formed part of a stock recovery
or protection plan giving details, for example, of the
species concerned, the expected impact on the biomass
fishing. The Italian
and the expected benefits
bibliographical
authorities
four
the arguments
references without giving details of
contained in them, which could have provided a
justification for the suspension in question when this
had been expressly requested by the Commission (letter
of 5 July 2001).

consideration does not

provided

appear

simply

for

III

COMMENTS FROM ITALY

(17)

introduce

The Italian authorities set out in their comments the
various stages of the case and refer to Regulation (EC)
No 2792/1999 on the temporary cessation of fishing
which considers temporary cessation in: Article 7 on
fishing effort; Article 12(6), under
the adjustment of
social
States may
which Member
accompanying measures
temporary
cessation of fishing activities in the framework of plans
for the protection of aquatic resources; and in Article
16(1), which provides that Member States may grant
compensation to fishermen and owners of vessels for
the
Italian
authorities maintain, on the basis of these Articles, that
in the case under consideration, where provision is
made for compensation for
for
shipowners, reference should be made to Article 12(6).

fishermen and not

fishing. The

temporary

cessation

facilitate

to

of

(15)

for

economic

the aim of

research on fisheries

The Commission observed also that the documents sent
by the Italian authorities included a note from the
Institute
and
aquaculture in Salerno (Istituto ricerche economiche per
la pesca e l’acquacoltura di Salerno (IREPA) in which it
states that
the mandatory suspension of
fishing [(cid:133)] was to reduce the effort of a fleet which is
oversized in relation to the available fish stocks.
According to the third paragraph of point 2.2.2. of the
fishing activities which is
Guidelines, aid to restrict
introduced for the purpose of helping to achieve the
target reductions in fishing effort under the multiannual
guidance programmes for Community fishing fleets is
incompatible with the common market.
In addition,
Article 16(4) of Regulation (EC) No 2792/1999 provides
that the Member States may not grant compensation to
fishermen or shipowners for the temporary cessation of
fishing if
the grounds are a seasonal suspension of
activity as part of the ongoing management of fisheries.

(18)

Temporary suspension in this case was not mandatory.
It became mandatory in a certain maritime district only
following the implementation of a mechanism for
participation involving the local advisory committee.
The measure was adopted in 15 districts: 594 vessels
out of a total of 1 485 took part, with an average crew
of two to three seamen. Total expenditure amounted to
ITL 2 937 781 500 (EUR 1,5 million).

(19) According to the Italian authorities, Regulation (EC) No
2792/1999 makes no provision,
for the purpose of
applying Article 12(6), for a prior technical examination
by the Commission or the Scientific, Technical and
Economic Committee for Fisheries (6). Furthermore,
under the Guidelines then applicable (those adopted in
1997) this examination must be carried out only for the
purpose of implementing Articles 7 and 16. Point 2.2.8
of the Guidelines provide also that aid may be granted
by the Member States to encourage or facilitate the
implementation of
to conserve
resources subject to a case-by-case examination. Point
2.10.3 of the Guidelines provides in addition that the
Member States may grant direct aid to workers in the
sector.

technical measures

(16)

In the light of these factors the Commission considered
that at the preliminary assessment stage provided for in
Article 6 of Regulation (EC) No 659/1999 there were
serious doubts about the compatibility of the aid with
the Guidelines for the examination of State aid to
fisheries and aquaculture, and consequently with the EC
Treaty.

(5) OJ L 337, 30.12.1999, p. 10.

(20)

The Italian authorities state that the measure did not
Its sole aim
confer any benefits on the undertakings.

(6) This Committee, to be consulted for the purpose of implementing
the compensation provided for in Article 16(1) as part of a stock
recovery plan, was set up by Article 16 of Council Regulation
(EEC) No 3760/92 establishing a Community system for fisheries
and aquaculture (OJ L 389, 31.12.1992, p. 1).

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was to assure seamen of the minimum legal wage and
to cover the relevant social costs and in this way avoid
dismissals. Proof that no benefits were conferred on the
undertakings is deemed to have been provided by the
fact that the majority of potential recipients failed to
participate in the measure, which instead of reducing
production costs
increased them since during the
suspension period the undertakings had to bear the
fixed costs without receiving any income.

(21)

The Italian authorities consider that in this instance the
measure could have been assessed in the light of points
2.2.8 and 2.10.3 of
the Guidelines, as was done in
preceding years for measures of this type. They agree
that it is not possible for Article 16 to be applied but
consider the measure compatible with Article 12.

(27)

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 common market.

The purpose of this measure is to ensure the minimum
legal wage for seamen and to meet
the social costs
payable by shipowners in respect of their crews. As
the effect of
wages are a burden on undertakings,
meeting
social
contributions for a given period is to reduce the costs
that have to be met by the fisheries undertakings in
question.

them together with the

relevant

IV

COMMENTS FROM INTERESTED PARTIES

Federcoopesca, Lega Pesca and AGCI Pesca are three
organisations representing Italian fishermen.
In their
letter they claim that they fail to understand the bases
on which the Commission’s comments are founded
since it is clearly explained in the Law introducing the
measure that it is based on the need to promote fishing
without conferring advantages on the undertakings and
without prejudicing crews.

In the absence of this aid measure crews would have
received no income. Shipowners would have been
lawfully entitled to dismiss fishermen without notice, as
provided for under Italian law, if the payment of costs
In addition,
had not been assured by the State.
shipowners
those
dismissed when fishing is resumed.

are not obliged

to re-employ

The organisations say that this measure is therefore a
purely social one and fully in line with Article 12(6) of
Regulation (EC) No 2792/1999. They add that
this
Article does not state that an aid measure adopted
under it may not be a recurring one. The kind of
temporary suspension implemented is the same as in
previous years.

comments were

Italian
These
authorities, which stated that they were in agreement
with them.

forwarded

to the

(22)

(23)

(24)

(25)

is to cover

contractual obligations during the

(28) Meeting the wages and social costs could be considered
at first sight not to constitute an aid to the undertakings
since the object
the wages and social
payments for crews during the temporary suspension
period, with the undertakings concerned deriving no
clear benefit. In actual fact, the measure, whose aim is
to maintain in force the employment contract between
shipowners and crew members, benefited the former,
who were a party to the contract, relieving them of
their
temporary
suspension period. The
the majority of
fact
shipowners did not suspend fishing in order to benefit
from the arrangements does not in any way show that
benefits on those
the measure
undertakings.
since a
considerable number of
them (594 out of 1 485)
benefited and the decision was taken by the shipowners
either
themselves
in circumstances
through local advisory committees
where
all
fishermen in a specific maritime district, or optionally in
districts where it was not mandatory. Undertakings
in the temporary suspension most
which took part
certainly benefited. The measure therefore constitutes an
aid to the fishery undertakings concerned.

did not
Indeed the contrary is

suspension had become mandatory for

to suspend fishing

temporarily,

confer

true,

that

V

(29)

ASSESSMENT OF THE MEASURE

A. Existence of State aid

(26)

In accordance with Article 87(1) of the EC Treaty, any
through State
aid granted by a Member State or

since the products of

Financing for the measure came from State resources.
Furthermore,
the beneficiary
undertakings were sold on the Community market, the
measures introduced by Italy strengthened their position
both on the Italian market in relation to undertakings
from other Member States intending to place their
products
competing
foodstuffs) on that market, and on the markets of other
Member States in relation to undertakings operating on
those markets
fishery products and other
competing foodstuffs). The measure in question favours

(also for

products

(fishery

other

and

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those undertakings and distorts or threatens to distort
trade between Member
competition and may affect
States.

(30)

For these reasons it constitutes State aid within the
meaning of Article 87(1) of the EC Treaty which in
principle is prohibited under that Article.
It may be
considered compatible with the common market only if
the derogations
falls within the scope of one of
it
provided for in the EC Treaty. As it
is a measure
favouring the fishery undertakings, it must be assessed
in the light of the Guidelines for the examination of
State aid to fisheries and aquaculture.

B. Compatibility of the measure with the second
paragraph of point 2.2.2 of the Guidelines and
with Article 12(6) of Regulation (EC)
No 2792/1999

(31)

(32)

(33)

resources. The

In its decision initiating the procedure, the Commission
said it was unable to accept these provisions as a basis
since the Italian authorities had failed to provide
information showing that the temporary suspension was
part of a plan to protect
Italian
authorities challenge this position and claim that the
measure is compatible with the common market since it
is an accompanying social measure of the kind provided
for in Article 12(6) of Regulation (EC) No 2792/1999.
According to the Italian authorities,
the Commission
cannot reject this argument on the grounds that the
Scientific, Technical
for
Fisheries was not consulted since consultation is not
mandatory.

and Economic Committee

It is true that consulting the Scientific, Technical and
Economic Committee for Fisheries is not mandatory.
However, the Commission had not intended to seek the
Committee’s opinion. On the other hand, since Article
12(6) of the above Regulation provides that Member
States may introduce social measures to accompany the
implementation of plans
the
Commission considers that it must conduct a minimum
check to determine whether an effective plan to protect
resources exists and on the relevance of the plan to the
goals sought. A plan of this kind would have referred,
for example,
the impact on
to the species covered,
biomass, the benefits for fishing, etc.

to protect

resources,

In the case under consideration the Commission finds
that no such plan exists. The Italian authorities simply
provided four bibliographical references without giving
details of the arguments contained in them which could
justify the technical suspension in question, although
they were expressly called upon to do so by the
Commission (in its letter of 5 July 2001). This matter
was also referred to in the letter informing the Italian
authorities of the initiation of the formal investigation

procedure and in their reply those authorities failed to
provide particulars which would indicate that there was
indeed a plan to protect resources. The Commission
considers therefore that
the measure examined here
cannot be justified under the second paragraph of point
the Guidelines and of Article 12(6) of
2.2.2. of
Regulation (EC) No 2792/1999.

C. Compatibility of the measure with point 2.2.8 of

the Guidelines

it

to

facilitate
improve

intended to encourage or
of measures

the Guidelines,
In accordance with point 2.2.8 of
national aid may be considered compatible with the
common market, subject to a case-by-case examination,
the
if
is
implementation
the
conservation and management of stocks, by limiting
catches through technical measures which are more
stringent than the minimum requirements contained in
Council Regulation (EEC) No 3094/86 of 7 October
1986 laying down certain technical measures for the
(Regulation
conservation
replaced by Regulation (EC) No 894/97 (8) and later by
Regulation (EC) No 850/98 (9). The Italian authorities
consider
can be
considered compatible under point 2.2.8.

the measure

implemented

resources (7)

fishery

that

of

for

These Regulations laid down a number of
technical
the conservation and management of
measures
resources, i.e. establishing, in relation to fishing areas,
requirements concerning fishing gear (types of gear,
sizes, mesh types, prohibition periods) and the species
taken (minimum sizes, prohibition periods).

scale,

Let us assume then, in the first analysis, although on a
different
that a general measure prohibiting
fishing in a given period and a given area can be
considered to constitute a technical measure of this kind
since it is intended to limit catches through measures
the minimum
which
are more
the
case
requirements under
accompanying social measure implemented by the
Italian authorities could be considered compatible on
the basis of point 2.2.8 of the Guidelines.

stringent
those

In that

rules.

than

(34)

(35)

(36)

(37) However, point 2.2.8 provides that

the Commission
must examine the proposed measure on a case-by-case
basis as the measure must not go beyond what
is
strictly necessary in order to attain the conservation
goal pursued. The compatibility of the measure with the
common market
therefore. The
measure must be justified in its goals and as regards its
impact on the fishing carried out by the fishermen
concerned.

automatic

is not

(7) OJ L 288, 11.10.1986, p. 1.
(8) OJ L 132, 23.5.1997, p. 1.
(9) OJ L 125, 27.4.1998, p. 1.

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(38)

(39)

(40)

(41)

(42)

In the case under consideration, as Italy states in its
comments, a similar aid scheme was approved by the
Commission for 1998 and 1999 on the basis of point
2.2.8. However, apart
from the general ground of
increasing stock biomass, the Italian Government has
not provided a specific justification in support of the
measure. Consequently, while
the
measure imposing a general prohibition on fishing
constitutes a technical measure within the meaning of
Regulation (EEC) No 3094/86 or Regulation (EC) No
850/98, the Commission considers that information is
not available to it that would allow it to consider it, for
a further year,
to be compatible with the common
market.

accepting

that

D. Compatibility of the measure with point 2.10.3

of the Guidelines

In accordance with the first paragraph of point 2.10.3
of the Guidelines, direct aid to workers in the fisheries
and aquaculture sector may be considered compatible
with the common market if
it is granted as part of
socioeconomic back-up measures designed to resolve
difficulties linked to the adjustment or reduction of
capacity (e.g. aid for training, or in connection with
retraining, etc.).

The measure in question was not adopted to resolve
difficulties linked to the adjustment or reduction of
capacity. Consequently the first paragraph of the above
point does not apply.

second paragraph,

The
retirement, is also excluded.

concerning

aid for

early

That
leaves
Commission
measures on a case-by-case basis.

the third paragraph under which the
socioeconomic
other
examines

the

the

shared

by
are
the Commission notes that

(43) On the basis of the comments of the Italian fishermen’s
the
Italian
organisations, which
the measure
authorities,
concerned determines whether
existing labour
contracts will be maintained. The arrangements prevent
the seamen from being dismissed: even though it
is
likely that the same seamen will be re-employed at the
end of the temporary suspension period, there is no
guarantee that this will be so. The aid can be compared
with temporary unemployment benefit enabling the
seamen to retain their jobs and entitlement to social
cover. Since it is equivalent to the minimum legal wage,
there is no danger of over-compensation in relation to

(44)

(45)

(46)

the wages that would have been paid if
continued during the same period.

fishing had

Regarding subsequent years, in order to be considered
compatible with the common market the aid must be
resources in
adopted as part of a plan to protect
accordance with point 2.2.2 of the Guidelines now in
force. A plan of this kind has not been drawn up for
2000. As an exception, however, on the basis of the
third paragraph of point 2.10.3 of the 1997 Guidelines,
the measure may be
the Commission considers that
considered compatible with the common market.

VI

CONCLUSIONS

The State aid introduced by Italy in Article 5 of Order
No 265 of 26 September 2000, converted into Law No
is compatible with the
343 of 23 November 2000,
common market.

The Commission finds that Italy has implemented the
aid measure concerned in breach of Article 88(3) of the
this aid is compatible with the
Treaty. However,
common market under the third paragraph of point
2.10.3 of the 1997 Guidelines,

HAS ADOPTED THIS DECISION:

Article 1

The aid measures implemented by Italy in favour of fishermen,
introduced by Article 5 of Decree-Law No 265 of 26
September 2000, converted into Law No 343 of 23 November
2000, are compatible with the common market.

Article 2

This Decision is addressed to the Italian Republic.

Done at Brussels, 13 November 2002.

For the Commission

Franz FISCHLER

Member of the Commission