2003/88/EC: Commission Decision of 13 November 2002 concerning the aid granted to fishermen and shellfish producers as a result of the pollution caused by mucilage and the suspension of fishing for technical reasons in the Adriatic Sea in 2000 (notified under document number C(2002) 4365) (Text with EEA relevance)
Date: 2002-11-13
Institutions: European Commission
Subjects: Adriatic Sea, Italy, State aid, control of State aid, fisherman, fishing industry, shellfish farming

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COMMISSION DECISION

of 13 November 2002

concerning the aid granted to fishermen and shellfish producers as a result of the pollution
caused by mucilage and the suspension of fishing for technical reasons in the Adriatic Sea in 2000

(notified under document number C(2002) 4365)

(Only the Italian text is authentic)

(Text with EEA relevance)

(2003/88/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 88 of
the EC Treaty, and in particular Article 14
thereof (1),

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

Whereas:

(1)

(2)

I

PROCEDURE

By letter dated 26 September 2000, received on 28
September 2000, the Italian Permanent Representation
to the European Union forwarded to the Commission
the text of a draft Order introducing a number of
emergency measures
in the transport and fisheries
sectors to provide support for these sectors, including in
Article 4, paragraphs 1 to 4 and 6 to 10, compensation
measures for fishermen and shellfish producers in the
Adriatic. The measures were recorded as notified aid
under the number N 159C/2000.

Subsequently, by letter dated 2 October 2000,
the
Italian authorities forwarded the text of the Order (No
265 of 26 September 2000), published in the Italian
Official Gazette of 27 September 2000. The Italian
authorities were asked on four occasions to provide
supplementary
23
November 2000, 20 February, 30 May and 5 July 2001,

information

letters

dated

in

to which they replied by letters dated 5 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 Order
No 265 into law), published in the Official Gazette of
25 November 2000, together with three Orders of the
Minister for Agriculture and Forestry of 19 July, 3
August and 22 December 2000 respectively containing
the implementing provisions.

for

practical

arrangements

took immediate

The Orders of 3 August and 22 December 2000, which
the
contain
the
compensation,
Furthermore,
since there was no provision 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
unnotified aids under the number NN 12/2001.

effect.

By letter C(2001) 3465 final of 13 November 2001 the
Commission informed Italy that while it regarded the
the suspension of
fishermen for
compensation for
fishing activities between 19 June and 19 July 2000 to
be compatible with the common market, a decision had
been taken to initiate the formal investigation procedure
provided for in Article 88(2) of the EC Treaty in respect
of the compensation for fishermen for the suspension of
fishing activities after 19 July 2000 together with that
for shellfish producers. Italy presented its comments by
letter of 20 December 2001, and in a further letter of
20 February 2002.

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
the three organisations 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.

(3)

(4)

(5)

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

(2) OJ C 25, 29.1.2002, p. 12.

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II

(11)

Shipowners received compensation calculated on the
basis of the tonnage of their vessel and of the social
contributions payable by them.

DESCRIPTION OF THE MEASURES

(6)

The measures apply in the Adriatic Sea, in the maritime
region from Trieste
including in the
maritime districts of Castro, Tricase, Santa Maria di
Leuca and Otranto located on the Adriatic side of the
maritime region of Gallipoli.

to Brindisi,

2.1. Measures in favour of fishermen

(7)

Two types of measures covering two periods were
considered: the period from 19 June to 19 July 2000
and a 44-day period starting on 20 July 2000.

(8)

(9)

(10)

2.1.1. Period from 19 June to 19 July 2000

Owners of fishing vessels, other than those capable of
deep-sea fishing, which had to suspend fishing activities
as a result of the presence of mucilage qualified for the
measure. The compensation was equivalent to their loss
of income during the period they were laid up based on
their income during the same period the previous year,
and ranged from a maximum of ITL 7,5 million (EUR
3 873) for vessels of under 10 grt to ITL 20 million
(EUR 10 329) for those over 10 grt. The Commission
considered this measure compatible with the common
market.

2.1.2. Period after 19 July 2000

The basic provisions on compensation for this period,
in respect of which the formal investigation procedure
was initiated, are contained in Article 4(1) of Law No
to
343 of 23 November 2000. Their
compensate various categories of
fishermen following
the temporary suspension of fishing starting on 20 July
2000 as a result of the presence of mucilage. According
to the Italian authorities, the suspension was intended
also to encourage the increase in fish stock biomass in
the Adriatic Sea.

aim was

The Orders of the Minister for Agriculture and Forestry
of 19 July and 3 August 2000 contained additional
provisions. That of 19 July 2000 provided that
the
measure applied to vessels practising pelagic trawling
(pesca allo strascico e/o volante), which were required to
suspend fishing, and as appropriate on a voluntary basis
to vessels using static gears and/or seiners (sistemi da
posta e/o circuizione). This measure did not apply to
vessels practising deep-sea fishing.
Its cost, covering
both shipowners and crews, was EUR 28,4 million.

(12)

The compensation, for each day’s suspension, in relation
to the tonnage of the vessel was as follows:

Class of vessel

Compensation amount

(in grt)

(in EUR)

0 < 25

25 < 50

50 < 70

70 < 100

100 < 200

200 and over

4,52 (cid:215) grt + 20

4,30 (cid:215) grt + 25

3,50 (cid:215) grt + 65

3,12 (cid:215) grt + 88

2,74 (cid:215) grt + 120

2,36 (cid:215) grt + 177

Class of vessel

Compensation amount

(in grt)

(in EUR)

0 < 10

10 < 25

25 < 50

50 < 100

100 < 250

250 and over

5,2 (cid:215) grt + 20

4,3 (cid:215) grt + 30

3,2 (cid:215) grt + 55

2,5 (cid:215) grt + 90

2,0 (cid:215) grt + 140

1,5 (cid:215) grt + 265

(13)

Payments were made for a maximum of 30 days.

(14) However, social contributions could be covered for up

to 44 days.

(15)

(16)

crew of

The
for
laid-up
compensation equivalent to the minimum legal wage for
a maximum of 44 days.

qualified

vessels

the

2.2. Measures in favour of shellfish producers

The basic provisions on compensation for
shellfish
producers are set out in Article 4(6) of Law No 343 of
23 November 2000 and were intended to compensate
producers (rearing or harvesting shellfish) for income
losses sustained as a result of the presence of mucilage
in the Adriatic. The
implementing provisions are
contained in Article 1 of the Order of the Minister for
Agriculture and Fisheries of 22 December 2000.

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(23) However,

specific

adoption of

the temporary suspension extended by the
Italian authorities to include the period after 19 July
2000 did not appear to constitute an occurrence of this
kind. It did not take place as a result of an unexpected
event comparable with a natural disaster and it was not
motivated by the scientific reports provided or other
scientific reports indicating that
there had been an
unforeseen and unforeseeable reduction in fish stocks
requiring the
stock recovery
measures, including, for example, temporary suspension
of fishing. The Commission notes that in previous years
Italy granted compensation under similar
temporary
suspension measures. The Commission did not raise any
objections:
in 1999 to measures with the number N
419/99 covered by letter SG(99) D/7551 of 17
September 1999 to the Italian Government; in 1998 to
measures with the number NN 101/98 covered by letter
SG(99) D/1581 of 23 June 1999; and in 1997 to
measures with the number NN 99/97 covered by letter
is
SG(97) D/6770 of 6 August 1997. From what
known, these measures applied also to fishing in the
Adriatic. The compensation measure adopted for 2000
does not appear to have been introduced as a result of
non-recurring circumstances and consequently could not
be deemed compatible in the light of the first paragraph
of point 2.2.2 of the Guidelines.

(17)

(18)

(19)

The compensation is equivalent to not more than 30 %
the loss sustained in relation to turnover for the
of
preceding year. The budget allocation for the measure is
ITL 1 500 million (EUR 774 685) and the total number
of beneficiary undertakings is 34.

have

already

producers who

Shellfish
received
compensation from other sources are ineligible for the
measure. The Commission points out in this connection
that it considered compatible with the common market
compensation measures
implemented in favour of
shellfish producers in the Region of Friuli-Venezia Giulia
following a similar occurrence of mucilage in 2000
(decision notified to the Italian Government by letter
SG(2001) D/289 817 of 17 July 2001).

2.3. Grounds for initiating the procedure

2.3.1. Measures in favour of fishermen

adopting

the reasons put
for

forward by the Italian
In view of
under
the measures
authorities
consideration, they have been examined in the light of
Article 87(2)(b) of the EC Treaty and of the Guidelines
for
the examination of State aid to fisheries and
aquaculture (hereafter called the Guidelines) adopted in
1973 (3) in force on the date on which the aid measures
were introduced.

(24)

Furthermore, under 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 have been able
to consider the conditions of compatibility to have been
met if the temporary suspension had taken place in
circumstances similar to those described in Article 16(1)
of Council Regulation (EC) No 2792/1999 of 17
December 1999 laying down the detailed rules and
arrangements regarding Community structural assistance
in the fisheries sector (4), 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, as regards in
particular measures to assist fishermen, in Article 12(6)
of that Regulation, under which accompanying social
measures can be introduced in the framework of plans
temporary
for
suspension under consideration did not correspond to
any of these cases.

the protection of

fish stocks. The

attributable

particularly

those

of

adoption

the measure. However,

(20) As in the case of the period before 19 July 2000, the
Italian authorities relied on the presence of mucilage to
justify
the
information furnished did not show that the suspension
of fishing during the subsequent period was due to the
therefore,
presence of mucilage. The Commission,
considered that
compensation could not be
permitted under Article 87(2)(b) of the EC Treaty, which
states that aid to make good the damage caused by
is
exceptional
natural
compatible with the common market.

occurrences

disasters

the

or

(21) A further reason put

forward by Italy to justify the
suspension of fishing during the period concerned was
to encourage an increase in fish stock biomass.

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

a

(3) OJ C 100, 27.3.1997, p. 12.

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

(25)

these factors and the preliminary
In view of all
assessment provided for in Article 6 of Regulation (EC)
No 659/1999, the Commission considered that there

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are serious doubts about
the
measures with the Guidelines for the examination of
State aid to fisheries and aquaculture.

the compatibility of

2.3.2. Measures in favour of shellfish producers

19 July, it is nevertheless true that on that date it was
causing immediate damage to fishermen and its later
disappearance could not be predicted. In the light of the
scientific reports furnished subsequently it would have
been possible to shorten the suspension period but in
practice account had to be taken of the uncertainty of
the situation.

(26)

The aim of the measures was to compensate producers
(rearing or harvesting shellfish) for the loss of income
sustained as a result of the presence of mucilage.

(31)

(27)

(28)

(29)

(30)

the purpose of

the
The Commission recognised that
compensation was to make good the losses sustained as
a result of a natural disaster, the presence of mucilage,
and consequently that it could be deemed compatible
with the common market. It could not be concluded
with certainty from the information provided by the
Italian authorities that excessive compensation had been
awarded. Evidence was not provided that 30 % of the
turnover for the preceding year did not exceed the
amount of damage sustained by producers as a result of
the mucilage. Doubt remained therefore regarding the
compatibility of the measure with Article 87(2)(b) of the
EC Treaty.

III

COMMENTS FROM ITALY

The Italian authorities set out in their comments the
various stages of the case and refer to Article 16(1) of
Regulation (EC) No 2792/1999 on the temporary
cessation of
event of unforeseen
circumstances, particularly where they are attributable
the
Italy takes
to biological causes.
presence of mucilage constitutes an exceptional and
unforeseen occurrence.

fishing in the

the view that

Italy challenges the position of the Commission dividing
the suspension period in two, i.e. the periods before and
after 19 July 2000, and considers this to be an arbitrary
choice. As far as Italy is concerned the date of 19 July
does not refer to the presence of the mucilage but is
simply that of the meeting at which the decision was
taken to switch from the voluntary to the mandatory
fishing. According to the preliminary
cessation of
Italian
information
fishermen
provided
to
administration called on scientific
monitor
for
the development of
procedural reasons, the reports of the institutes could
not be taken into consideration by the Central Advisory
Committee for Sea Fisheries,
leading to a decision on
suspension before 19 July.

the
institutions
the mucilage and,

by

Secondly, while
reports
indicated that the mucilage problem was declining on

subsequent

scientific

the

By letter of 20 February 2002 the Italian authorities
forwarded a summary scientific report from the Fano
marine biology and fisheries laboratory. According to
this report, the mucilage problem had reached a climax
in August, disappearing
in July and would taper off
altogether
the mucilage
accumulations dispersed first towards the central area
and later towards the south of the Adriatic Sea, enabling
fishing to return to normal in September. The situation
varied, however, across the area and over time.

in September.

In August

states

(32) As regards the compensation for shellfish producers,
Italy
sustained
30 % of
corresponded to the loss calculated in relation to
turnover
for
the preceding year. Applications
compensation were received from 34 undertakings.

losses

that

the

for

IV

COMMENTS FROM INTERESTED PARTIES

(33)

Federcoopesca, Lega Pesca and AGCI Pesca are three
In their
organisations representing Italian fishermen.
letter they claim that they fail to understand the bases
on which the Commission’s comments are founded: the
text of the Law introducing the measure explains clearly
that it is based on the need to tackle the impossibility of
fishing on account of
the exceptional presence of
mucilage.

(34) Without the aid measure crews would have received no
income. Shipowners would have been lawfully entitled
to pay fishermen off without notice, as provided for
under Italian law, if the payment of costs had not been
assured by the State. In addition, shipowners were not
obliged to re-employ the same members of crews.

(35)

The organisations say that the mucilage began to appear
in March 2000 and worsened in May. Because of the
difficulty of carrying on their activities, the fishermen
turned to the Italian authorities for action to be taken.

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(36)

The organisations say that the measures adopted by the
authorities were fully in line with Article 16(1) of
Regulation (EC) No 2792/1999.

to compensate for

(41) With regard to shellfish farming, the aim of the measure
the damage sustained by
was
producers as a result of the appearance of the mucilage.
The payments received by the undertakings constituted
a financial benefit and, for that reason, an aid.

(37)

(38)

Regarding the compensation for shellfish producers, the
30 % threshold for damage was reached because Law
No 72/92, which authorises this type of compensation,
applies only where the loss sustained reaches not less
over-
35 % of
than
compensation therefore.

There was

turnover.

no

comments were

These
authorities, which agreed with them.

forwarded

to the

Italian

V

ASSESSMENT OF THE MEASURES

A. Existence of State aid

(42)

In addition, these measures were funded from national
resources and the products of the undertakings are sold
on the Community market. The undertakings were
strengthened therefore by the measures, both on the
Italian market
in relation to undertakings of other
Member States intending to present their own products
on that market (fishery products or other competing
foodstuffs), and on the markets of other Member States
in relation to undertakings operating on those markets
(again for
competing
foodstuffs). In view of this, the measure, by conferring a
benefit on Italian undertakings, distorted or threatened
to distort competition and could affect trade between
Member States.

fishery products

and other

(43)

For the above reasons the measures constitute State aid
within the meaning of Article 87(1) of the EC Treaty
and are in principle prohibited under that Article 87(1).
They may be considered compatible with the common
market only if they fall within the scope of one of the
derogations provided for in the EC Treaty.

(39)

In accordance with Article 87(1) of the EC Treaty, any
aid granted by a Member State or
through State
resources in any form whatsoever which distorts or
threatens to distort competition by favouring certain
undertakings or the production of certain goods shall,
insofar as it affects trade between Member States, be
incompatible with the common market.

(44)

(40) With regard to fishing, the aim of the measures was to
offset the losses sustained by shipowners as a result of
the temporary suspension of activities and to ensure
that crews received the minimum contract wage and
that the social contributions payable by shipowners in
respect of crews were covered. The compensation
received by shipowners was a financial benefit and
consequently an aid. As wages are a burden on
undertakings, the effect of meeting them together with
the relevant social contributions is to reduce the costs
that have to be met by the fisheries undertakings in
question. Meeting the wages and social costs could be
considered at first sight not to constitute an aid to the
undertakings since the aim is to cover the wages and
social payments
temporary
suspension period with the undertakings concerned
deriving no clear benefit. That having been said, this
measure, which was designed 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 contractual obligations
for
the temporary suspension. The
measure is therefore an aid to the fisheries undertakings
concerned.

crews during the

the duration of

for

B. Evaluation of the compatibility of the measures
in the light of Article 87(2)(b) of the EC Treaty

Measures in favour of fishing

In its letter notifying Italy of the initiation of the formal
investigation procedure in respect of
the measures
the Commission said it considered the
concerned,
compensation awarded for the temporary suspension of
fishing between 19 June and 19 July 2000 compatible
with the common market since it had been awarded as
the presence of mucilage, which was
a result of
recognised to be a natural disaster within the meaning
of Article 87(2)(b)
formal
investigation procedure was initiated in respect of the
aid awarded for the period after 19 July 2000 because it
was not clear from the information provided by the
Italian authorities that the decision to suspend fishing in
that period was indeed due to the presence of
the
mucilage.

the Treaty. The

of

(45)

The information provided by the Italian authorities in
response to the initiation of the formal
investigation
procedure provided additional particulars which showed
that the temporary suspension, adopted by Order of 19
July 2000 and applicable from 20 July to 1 September,
was due to the presence of mucilage. As the authorities
affirm,
it is true that the duration of the suspension
could theoretically have been shortened since the
situation gradually returned to normal during August

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but
in practice this could not have been known in
the
advance, given the unforeseeable development of
situation over time. In the light of these considerations
the Commission is able to deem the suspension after 19
July, like that between 19 June and 19 July, to be due to
recognised as a natural
the presence of mucilage,
disaster
the
Treaty.

in accordance with Article 87(2)(b) of

(50)

(46)

therefore be

The compensation awarded as a result of the suspension
will
considered compatible with the
common market in accordance with Article 87(2)(b) of
the EC Treaty if it corresponds to the damage actually
sustained by the beneficiaries, i.e. it does not constitute
over-compensation.

(47)

The Commission notes that the crews received payment
equivalent to the minimum legal wage; there has not
therefore been over-compensation.

(51)

(48)

(49)

for

for

and

regarding

setting of

shipowners

arrangements

compensation

The
is
introduced
equivalent to the maximum contribution provided for in
Article 14 and in Annex III to Council Regulation (EC)
No 2468/98 of 3 November 1998 laying down the
criteria
Community
structural assistance in the fisheries and aquaculture
sector (5). This Regulation cannot directly constitute a
amount of
reference
the
the
the
compensation provided for under
the aid measure
concerned as it was repealed and replaced by Regulation
like
(EC) No 2792/1999. Since the latter Regulation,
Regulation (EC) No 2468/98, provides for the financing
of temporary suspensions under the financial instrument
for fisheries guidance (FIFG) but
fails to specify the
amount of the contribution (which is at the discretion
of the Member State subject to the rules governing State
aid; only the breakdown of the financing between the
Member State and the FIFG is fixed), the Commission
may consider the reference to the maximum amounts
set out in Regulation (EC) No 2468/98 to be admissible.
these considerations the Commission
In the light of
considers that the compensation awarded to shipowners
on the basis of those amounts is compatible with the
common market.

Measures in favour of shellfish producers

formal

investigation procedure was

The
initiated
because the Commission was unable, on the basis of the
the
to
information
compensation paid was within the limits of the damage
sustained, i.e. that there was no over-compensation.

verify whether

furnished,

(5) OJ L 312, 20.11.1998, p. 19.

This

suspension was

In their comments on the initiation of the procedure the
Italian authorities stated that the payments had been
calculated on the basis of the turnover for the preceding
year (1999). They also explained that they had not been
able to refer to the year before that (1998) because in
that year fishing in the Adriatic had been suspended
the events in
from May to August on account of
Kosovo.
by
compensation measures held to be compatible by the
Commission in letter SG(2000) D/104 064 of 8 June
2000 to the Italian authorities. The latter had indicated,
however, that production and turnover for 1999 were
the same as
the
Commission considers
compensation for
that
damage sustained during 2000, although calculated on
the basis of one year only while three years are as a rule
required in order to exclude the effects of peaks in
production, has been fixed on an admissible basis in this
particular case.

In these circumstances

accompanied

for 1997.

the

this kind,

The Commission considers also that in accordance with
the Law of 5 February 1992 permitting loans to be
made available for payments of
these are
granted only if the damage suffered is equivalent to at
least 35 % of turnover. On the basis of the above and in
accordance with Commission practice, which provides
that aid to compensate for damage caused by a natural
disaster may be
considered compatible with the
common market only if it represents not less than 30 %
of normal production, the payments made in the case
under consideration may be considered compatible with
the
the
compensation for each undertaking will be not more
than 30 % of turnover for the preceding year, there is
no threat of over-compensation.

common market.

Furthermore,

since

(52)

The compensation, having been paid as a result of the
presence of mucilage,
thus compatible with the
common market in accordance with Article 87(2)(b) of
the Treaty.

is

VI

CONCLUSIONS

(53)

that

Italy has unlawfully
The Commission finds
implemented aid introduced for
the
fishermen for
period after 19 July 2000 and for shellfish producers by
Order No 265 of 26 September 2000, converted into
law No 343 of 23 November 2000, contrary to Article
88(3) of the Treaty.

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(54) However, the State aid measures under consideration are
common market within the

compatible with the
meaning of Article 87(2)(b) of the Treaty,

period after 19 July 2000 and in favour of shellfish producers
in the Adriatic also in 2000, are compatible with the common
market.

HAS ADOPTED THIS DECISION:

This Decision is addressed to the Italian Republic.

Article 2

Article 1

Done at Brussels, 13 November 2002.

Th aid measures introduced by Article 4, paragraphs 1 to 4
and 6 to 10, of Order No 265 of 26 September 2000,
converted into Law No 343 of 23 November 2000, which
Italy implemented in favour of fishermen in the Adriatic in the

For the Commission

Franz FISCHLER

Member of the Commission