L 64/34
EN
Official Journal of the European Union
2.3.2022
European Courts (60), the Commission considers that amending (i.e. prolonging) the duration of an aid scheme that had a clear expiry date (i.e. 31 December 2008) is sufficient to make it a new aid irrespective of whether or not other characteristics of the measure were changed.
(184) For the above reasons, the Commission considers that regardless of the fact that the compensation awarded to Toremar up until end 2008 has been classified as existing aid (61), the public service compensation paid on the basis of the prolongation of the initial Convention should be considered as new aid.
This conclusion also holds for the berthing priority.
6.1.2.
The award of the new public service contract bundled with Toremar’s business to Moby/Toremar
(185) In order to conclude on whether the award of the new public service contract bundled with Toremar’s business constitutes an advantage to Moby/Toremar within the meaning of Article 107(1) TFEU, the Commission must assess observance of the Altmark criteria (see recital (170)).
6.1.2.1.
Altmark 1
(186) The Commission recalls that there is no uniform and precise definition of a service that may constitute an SGEI under Union law, either within the meaning of the first Altmark condition or within the meaning of Article 106(2) TFEU (62).
Paragraph 46 of the SGEI Communication is worded as follows:
‘In the absence of specific Union rules defining the scope for the existence of an SGEI, Member States have a wide margin of discretion in defining a given service as an SGEI and in granting compensation to the service provider.
The Commission’s competence in this respect is limited to checking whether the Member State has made a manifest error when defining the service as an SGEI and to assessing any State aid involved in the compensation.
Where specific Union rules exist, the Member States’ discretion is further bound by those rules, without prejudice to the Commission’s duty to carry out an assessment of whether the SGEI has been correctly defined for the purpose of State aid control.’
(187) National authorities are therefore entitled to take the view that certain services are in the general interest and must be operated by means of public service obligations to ensure that the public interest is protected when market forces do not suffice to guarantee that they are provided at the level or conditions required.
(188) In the field of cabotage, detailed Union rules governing public service obligations have been laid down in the Maritime Cabotage Regulation and, for the purpose of examining potential State aid to undertakings engaged in maritime transport, in the Community guidelines on State aid to maritime transport (‘the Maritime Guidelines’) (63).
(189) Article 4(1) of the Maritime Cabotage Regulation provides:
‘A Member State may conclude public service contracts with or impose public service obligations as a condition for the provision of cabotage services, on shipping companies participating in regular services to, from and between islands.
Whenever a Member State concludes public service contracts or imposes public service obligations, it shall do so on a non-discriminatory basis in respect of all Community shipowners.’
(60) Joined Cases T-127/99, T-129/99 and T-148/99 Territorio Histórico de Álava – Diputación Foral de Álava and others v Commission, ECLI: EU:T:2002:59, paragraph 175.
(61) 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).
(62) Case T 289/03 BUPA and Others v Commission [2008] ECR II 81, paragraph 96.
See also Opinion of Advocate General Tizzano in case C 53/00 Ferring, ECR I 9069 and Opinion of Advocate General Jacobs in Case C 126/01, GEMO, [2003] ECR I 13769.
(63) Commission Communication C(2004) 43 – Community Guidelines on State aid to maritime transport (OJ C 13, 17.1.2004, p. 3).