L 64/28
EN
Official Journal of the European Union
2.3.2022
(137) Italy considers that the berthing priority would not confer a meaningful advantage to the companies of the former Tirrenia Group, including Toremar and its acquirer Moby.
In particular, they argue that in practice the berthing priority is only applied in very limited circumstances.
The size of most of the ports and the advance scheduling of arrivals and departures ensures that in normal circumstances – barring any delays or extreme weather conditions – there would be no overlap in the use of specific berths by different operators.
Additionally, since Toremar and Moby operate their services all year long (contrary e.g. to operators who operate only in the high season), it would be natural for ports to give them first choice of berthing slots even in absence of a formal berthing priority.
For these reasons, Italy considers that the berthing priority cannot have awarded any meaningful advantage to Toremar and Moby.
4.6.
On the measures laid down by the 2010 Law
(138) As regards the measures laid down by the 2010 Law (see above recitals (91) and (92)), Italy submits that Toremar has been allocated and effectively used the financial resources already committed by Law 102/2009 for the initial purpose.
In particular, Toremar used EUR 1 617 300 to upgrade its fleet in order to respect international safety standards (i.e. EUR 808 650 for the upgrade of the vessel Aethalia and EUR 808 650 for the upgrade of the vessel Liburna).
It is also submitted that these funds have not been used for liquidity purposes.
(139) With regard to the fiscal exemptions related to the privatisation process, Italy argues that as regards corporate income tax, the measure has not been applied since the transfers of Caremar, Saremar and Toremar to the regions were made free of charge.
Therefore, in the absence of any remuneration, Article 86(1)(a) of the Consolidated Income Tax Law concerning capital gains in the event of asset transfers against payment does not apply.
With respect to VAT, Italy notes that the transfers of Caremar, Saremar and Toremar constitute transactions which are exempt from VAT under Article 10(1)(4) of Presidential Decree No 633 of 26 October 1972.
With respect to indirect taxes other than VAT, Italy emphasises that the exemption provided for by the 2010 Law was designed with a view to administrative simplification.
From the taxation perspective, its effects can be regarded as negligible and of little impact in relation to taxes which are charged at flat rates.
More specifically, it concerns the registration duty (EUR 168 per document), land registry and mortgage registration fees (EUR 168 each) and stamp duty (EUR 14,62 for four sides).
(140) Concerning the FAS resources, Italy submits that Toremar has not received any benefit thereof.
In addition, they clarified that the FAS resources were not used to give an additional compensation to the companies of the former Tirrenia Group, including Toremar.
Instead, these resources were made available to supplement the budget appropriations set up for the payment of the public service compensations to the companies of the former Tirrenia Group, in case those budget appropriations proved to be insufficient.
Italy notes that Article 1, paragraph 5-ter of Decree Law 125/2010 enabled the regions to use the FAS resources to fund (part of) the regular public service compensation and thereby ensure continuity of the maritime public services.
Moreover, Italy clarifies that, under Article 26 of Decree Law 185/2008, EUR 65 million for each of the years 2009, 2010 and 2011 were earmarked to the Tirrenia group and EUR 195 million were accordingly drawn from the FAS resources.
Those funds were then transferred to the account of the Ministry of Transport earmarked for the payment of the public service compensation to the companies of the former Tirrenia Group (Tirrenia, Siremar, Caremar, Toremar and Saremar).
Therefore, this measure would merely concern an allocation of resources in Italy’s budget for payment of the public service compensations.
4.7.
On the compliance of the prolongation of the initial Convention and of the new public service contract with the 2011 SGEI Decision
(141) Even if Italy considers that the public service compensation paid under the new public service contract to Toremar does not constitute State aid, it has also argued why this measure would comply with the 2011 SGEI Decision, if it were aid.
(142) In its reply, Italy provides the average annual traffic during the period 2010-2016, based on the routes altogether.
On this basis, Italy presented passenger traffic data to demonstrate that the threshold of 300 000 passengers as laid down in Article 2(1)(d) of the 2011 SGEI Decision has not been breached on any of the routes operated by Toremar until the end of 2011 and as from 2012 by Moby/Toremar.