2.3.2022
EN
Official Journal of the European Union
L 64/33
(177) Given that the four Altmark conditions are not cumulatively observed in the present case, the Commission concludes that the compensation for the operation of maritime routes under the prolongation of the initial Convention provided Toremar with an economic advantage.
(178) With respect to the berthing priority, the Commission first recalls that the Italian competition authority AGCM has at least on two occasions considered that this measure has economic value (53).
Nevertheless, Toremar does not pay any fee for the berthing priority (see recital (136)).
Furthermore, the Commission observes that the berthing priority has at least in theory the potential to lower the operator’s costs (e.g. because the guaranteed berthing could reduce waiting times in ports and hence result in lower fuel costs) or increase its revenues (e.g. because some timings possibly attract more demand from passengers).
Indeed, to the extent the berthing priority allows for a faster docking procedure, users of the ferry service may prefer the ferry operator that benefits from this measure.
Even if these effects would only materialise in limited circumstances or would be relatively small, the berthing priority could nevertheless constitute an economic advantage for Toremar.
6.1.1.4.
Effect on competition and trade (179) When aid granted by a Member State strengthens the position of an undertaking compared to other undertakings competing in intra-Union trade, the latter must be regarded as affected by that aid (54).
It is sufficient that the recipient of the aid competes with other undertakings on markets open to competition (55).
(180) In the present case, the beneficiary operates in competition with other undertakings providing maritime transport services in the Union, in particular since the entry into force of Council Regulation (EEC) No 4055/86 (56) and the Maritime Cabotage Regulation, liberalising the market of the international maritime transport and maritime cabotage, respectively.
The fact that on some routes Toremar was at that time the only operator does not mean that other (international) operators could not be interested to offer similar maritime transport services.
Therefore, the compensation for the operation of maritime routes under the prolongation of the initial Convention is liable to affect Union trade and distort competition within the internal market.
For the same reasons that conclusion also holds for the berthing priority.
6.1.1.5.
Conclusion (181) Since all criteria laid down in Article 107(1) TFEU are fulfilled, the Commission concludes that both the public service compensation paid on the basis of the successive prolongations of the initial Convention and the berthing priority for the public service routes constitutes State aid to Toremar.
6.1.1.6.
New or existing aid (182) The Commission first notes that the compensation paid to Toremar for the operation of maritime public service obligations until the end of 2008 will not be assessed in this Decision.
The assessment of that compensation, and whether or not it can be classified as existing aid on the basis of Article 4(3) of the Maritime Cabotage Regulation, is the subject of a separate Commission decision (57).
(183) According to Article 1(c) of Council Regulation (EU) 2015/1589 (58), new aid means ‘all aid, that is to say, aid schemes and individual aid, which is not existing aid, including alterations to existing aid’.
Furthermore, Article 108(3) TFEU provides that plans to grant or alter existing aid must be notified, in due time, to the Commission and may not be implemented until the procedure has led to a final decision (59).
In line with the position of the (53) Commission Decision (EU) 2020/1412 of 2 March 2020 on the measures SA.32014, SA.32015, SA.32016 (2011/C) (ex 2011/NN) implemented by Italy for Tirrenia di Navigazione and its acquirer Compagnia Italiana di Navigazione, recital 265.
(54) See, in particular, Case 730/79 Philip Morris v Commission, ECLI:EU:C:1980:209, paragraph 11; Case C-53/00 Ferring, ECLI:EU: C:2001:627, paragraph 21; Case C-372/97 Italy v Commission, ECLI:EU:C:2004:234, paragraph 44.
(55) Case T-214/95 Het Vlaamse Gewest v Commission, ECLI:EU:T:1998:77.
(56) Council Regulation (EEC) No 4055/86 of 22 December 1986 applying the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries (OJ L 378, 31.12.1986, p. 1).
(57) Commission Decision (EU) 2020/1411 of 2 March 2020 on State aid No C 64/99 (ex NN 68/99) implemented by Italy for the Adriatica, Caremar, Siremar, Saremar and Toremar shipping companies (Tirrenia Group).
(58) Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ L 248, 24.9.2015, p. 9).
(59) Case C-590/14 P DEI and Commission v Alouminion tis Ellados, ECLI:EU:C:2016:797, paragraph 45.