2.3.2022
EN
Official Journal of the European Union
L 64/47
(257) In relation to the use of the most economically advantageous offer, paragraph 67 of the SGEI Communication indicates that the ‘most economically advantageous offer’ is deemed also (in addition to the ‘lowest price’) sufficient to satisfy fourth Altmark criterion ‘[…] provided that the award criteria […], are closely related to the subject matter of the service provided and allow for the most economically advantageous offer to match the value of the market’ (82).
(258) The Commission notes that Italy gave emphasis on choosing an operator that would provide the service at high quality standards taking into account certain requirements.
The invitation letter to submit a tender included all necessary information needed in order to fill out the financial and technical offers.
Especially as regards the technical offer (which was scored with 80 points in total, with the remaining 20 points allocated to the price criterion), all 11 maritime operators that expressed an interest were invited to submit information related to the average age of the vessels provided for each line and for each contractual year, the capacity and structural facilities provided for disabled passengers, as well as information related to the possibility for the selected operator to schedule additional sailings on specific time slots (including night sailings) all year round.
These quality criteria are evidently closely related to and confer added value to the provision of the maritime service.
Therefore, the Commission considers that the use of the most economically advantageous tender for the service concerned bundled with the sale of the Toremar business enabled Italy to create effective competition and obtain a service with the highest possible value at the least cost to the community.
(259) As far as the bundling of the service with the sale of the Toremar business is particularly concerned, in the 2012 Decision, the Commission took the preliminary view that the tendering of the new public service contract without an obligation to take over the vessels of Toremar necessary to perform the public service, would have resulted in a lower cost to the community.
(260) The Commission has already concluded above that the tender procedure has been sufficiently transparent and nondiscriminatory to enable the participation of as many potential tenderers as possible.
Indeed, following the widespread publication of the call for expression of interest, 11 maritime operators responded affirmatively.
All relevant information concerning the tender procedure was provided for in the invitation letter sent to all 11 participants.
The Region of Tuscany, further, set up a special digital platform or data-room, containing all the necessary documentation to allow all potential tenderers to be equally informed.
(261) Following the expression of interest stage, two competitive bids were submitted (Moby and Toscana di Navigazione S.r.l.), which the Region of Tuscany evaluated, taking into account their technical and financial offers.
As mentioned in recitals (62) and (64), during the evaluation phase, the Region of Tuscany detected some inconsistencies pertaining to differences between the technical and economic offers submitted by Toscana di Navigazione S.r.l. resulting to the latter being further excluded from the process, and the contract was thus ultimately awarded to Moby.
(262) The mandatory condition to guarantee the continuity of the public service and the bundling of the assets with the public service obligations are interrelated.
In particular, by having bundled the sale of Toremar with a new public service contract, the acquirer, Moby, automatically becomes subject to the requirement to ensure the continuity of the public service and is awarded the berthing priority.
The Commission considers that the bundling of the Toremar business with the new public service contract and the award of the berthing priority do not result in a lower price than if the assets and this contract would have been sold separately, for the following reasons.
(263) The Toremar business has been solely purposed for the delivery of the public service and to ensure the territorial continuity.
Indeed, all of Toremar’s vessels have been and currently are used for the public service.
The Commission is of the view that a private vendor would not have been able to obtain a higher price for the vessels on the market.
Indeed, according to the Fidi report, out of the eight vessels of Toremar, three were budgeted for the residual value, whereas the remaining five, which have been completely amortised, were budgeted to their scrap values.
However, it seems unlikely that these vessels could have been sold for shipping purposes, other than that including the condition to continue the public service, for a higher price than that which they were budgeted for.
This is because when a ship is not yet at the end of its useful life, its value for shipping purposes would be higher than its scrap (82) See also paragraph 96 of the Notion of Aid Communication.