24.3.2022
EN
Official Journal of the European Union
L 97/59
8.1.3.3.
A l t m a r k 3 (358) According to the third Altmark criterion, the compensation received cannot exceed what is necessary to cover all
or part of the costs incurred in the discharge of the public service obligations, taking into account the relevant receipts and a reasonable profit.
(359) 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.
(360) In the 2012 Decision, the Commission expressed doubts as to the proportionality of the compensation paid to
CdI.
In particular, the Commission took the preliminary view that the 6,5 % risk premium does not reflect an appropriate level of risk because prima facie CdI did not seem to assume the risks normally borne in the operation of such services.
More specifically, the cost elements taken into account 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 CdI may have been overcompensated.
(361) The Commission notes that certain aspects of the compensation method as laid down in the new Convention,
indeed seem to reduce the commercial risk incurred by CdI and later SNS.
In particular, the maximum fares that the operator can charge are adjusted annually to take into account inflation and reflect variations in fuel costs.
Moreover, the new Convention contains certain clauses that aim at maintaining the economic-financial equi­ librium of the public service (see recital (130)).
In particular, in case the public service compensation would be insufficient to cover the cost of the services entrusted by the new Convention, these clauses allow to revise (i) the scope of these services, (ii) the way the services are delivered (e.g. type of ships), or (iii) the maximum fares.
(362) However, the abovementioned clauses are subject to a number of restrictions.
In particular, under Article 8 of the
new Convention, the economic-financial equilibrium of the public service is only reviewed every 3 years.
If this review shows that the compensation is insufficient to cover the public service cost, then the operator and the Italian authorities can only agree to make changes for the next 3-year period.
In case the revenues or costs of the public service show unforeseeable structural differences more than 3 % higher or lower than the values laid down in the new Convention, its Article 9 allows the parties to request (subject to a number of conditions) a revision of the economic-financial equilibrium.
Under both Articles, such changes (if any) are the outcome of a negotiation procedure and until an agreement is reached, the operator must continue to operate the public service unaltered.
As a result, the operator remains partially exposed to the risk that the compensation is insufficient to cover the costs of running the service.
While Articles 8 and 9 of the new Convention can be used to restore the economicfinancial equilibrium, this is only done on a forward-looking basis and there is no retroactive correction possible.
(363) As explained in recitals (49) to (58), the CIPE Directive provides that the risk premium of 6,5 % would be used to
determine the return on capital using the WACC formula.
In particular, for Siremar Italy initially took into account a Beta of 0,56 for that formula.
The Beta reflects the risk of the activity carried out by the operator and its level shows that in the calculation of the return on capital, Italy took into account the fact that the risk of the activity carried out by operator is substantially lower than the market risk.
However, in the course of the formal investigation (see recital (218)), Italy has clarified that, because the amount of compensation is capped by the 2009 Law, the decision was taken to simplify the calculation by applying the 6,5 % as a flat rate return on capital.
The Italian authorities also demonstrated that applying the full methodology as laid down in the CIPE Directive would have resulted in a return on capital that exceeds 6,5 % (i.e. 8,87 %).
For this reason, Italy considers that their simplified approach is conservative and does not allow for higher compensation for the operator than what was established under the CIPE Directive.
(364) Against the above background, at recital (363) of the 2020 Tirrenia/CIN decision, the Commission has compared
the return on capital of 6,5 %, also applied in the calculation of the compensation for the company subject to that investigation (i.e. CIN), with the median return on capital generated by a benchmark group in 2011 (the year before CdI’s first entrustment).
The benchmark group consisted of selected ferry operators that offered maritime