L 64/40
EN
Official Journal of the European Union
2.3.2022
Berthing priority (211) Article 19-ter, paragraph 21, of the 2009 Law clearly specifies that the berthing priority is necessary to guarantee the territorial continuity with the islands and in light of the public service obligations of the companies of the former Tirrenia Group, including Moby/Toremar.
Indeed, if there were no priority berthing for companies entrusted with public service obligations, these may (sometimes) have to wait their turn before docking and thereby incur delays, which would defeat the purpose of ensuring reliable and convenient connectivity to the citizens.
A regular timetable is indeed necessary to satisfy mobility needs of the islands’ population and to contribute to the economic development of the islands concerned.
Furthermore, since there are specific time scheduling obligations in the new public service contract for the departure of public service routes, the berthing priority helps to ensure that ports allocate the berths and berthing times in such a way to enable the public service operator to respect its public service obligations.
This berthing priority was transferred to Moby/Toremar when Toremar was acquired.
Against this background, the Commission considers that this measure is awarded to enable Moby/Toremar to perform their public service obligations which constitute genuine SGEI (see recital (209)).
Furthermore, Italy has confirmed that the berthing priority is only applicable to services provided under the public service regime.
Therefore, the berthing priority also complies with the first condition of the Altmark judgment.
6.1.2.2.
Altmark 2 (212) The Commission recalls that in the 2012 Decision (see its paragraph 205), it had taken the preliminary view that the second criterion of the Altmark judgment is observed.
(213) Against this background, the Commission notes that the parameters at the basis of the calculation of the compensation have been established in advance and observe the transparency requirements in line with the second Altmark criterion.
(214) More specifically, the parameters on the basis of which the compensation was calculated are explained in detail in the CIPE Directive and have been applied in the new public service contract (and annexes thereto).
The method of calculation of the compensation, including for instance the cost elements taken into account, are detailed in the CIPE Directive.
Since the berthing priority does not entail financial compensation for Moby/Toremar, the Commission considers that this measure complies with Altmark 2.
(215) Therefore, the Commission concludes that the second condition of the Altmark judgment is observed.
6.1.2.3.
Altmark 3 (216) According to the third Altmark condition, the compensation received for the discharge of the SGEI cannot exceed what is necessary to cover all or part of the costs incurred in the discharge of public service obligations, taking into account the relevant receipts and a reasonable profit for discharging those obligations.
(217) However, the Altmark ruling does not provide a precise definition of the reasonable profit.
According to the SGEI Communication, reasonable profit should be taken to mean the rate of return on capital that would be required by a typical company considering whether or not to provide the service of general economic interest for the whole duration of the period of entrustment, taking into account the level of risk.
The level of risk depends on the sector concerned, the type of service and the characteristics of the compensation mechanism.
(218) In the 2012 Decision, the Commission expressed doubts as to the proportionality of the compensation paid to the companies of the former Tirrenia Group, including Moby/Toremar as from 2012.
In particular, the Commission took the preliminary view that the 6,5 % fixed risk premium did not reflect an appropriate level of risk because prima facie Moby/Toremar did not appear to assume the risks normally borne in the operation of such services.
More specifically, the cost elements for the purpose of calculation of the compensation include all costs involved in the provision of the service and variations in e.g. fuel prices have been taken into account.
As a result, the Commission considered at that stage that Moby/Toremar may have been overcompensated.
(219) The Commission notes that certain aspects of the compensation method as laid down in the new public service contract, indeed seem to reduce the commercial risk incurred by Moby/Toremar.
In particular, the maximum fares that Moby/Toremar can charge are adjusted annually to take into account inflation and reflect variations in the consumer price index.
Moreover, the new public service contract contains certain clauses (see recital (87)) that aim