L 97/62
EN
Official Journal of the European Union
24.3.2022
(366) The Commission further notes positively that Article 5 of the new Convention requires the operator to send its
management accounts (sub-divided per route and certified by an independent auditor) every year to Sicily to enable the latter to check if there was any overcompensation.
This provides an additional safeguard to ensure that the operator cannot benefit from any overcompensation.
The Italian authorities also submitted these management accounts for the period 2012-2019, thereby enabling the Commission to make the calculations in Table 7 (136).
(367) In light of the above, the Commission concludes that the public service compensation granted to the operator
does not exceed what is necessary to cover the costs incurred in the discharge of its public service obligations, taking into account the relevant receipts and a reasonable profit.
More specifically, the Commission considers that the risk premium of 6,5 % provided for by the CIPE Directive, has to be assessed in combination with the maximum compensation amount laid down in the 2009 Law.
With this in mind, the return on capital that CdI and later SNS could expect from an ex ante perspective was in line with the risks it ran when operating the public services under the new Convention.
The Commission’s doubts concerning compliance with the third condition of the Altmark judgment are therefore dispelled.
(368) With respect to the berthing priority and any possible overcompensation that might result from it, Italy has
claimed that any possible monetary advantage from the berthing priority could not be quantified (see above recital (227)).
In any event, the Commission notes that, to the extent that this measure would reduce the operating costs or increase the revenues of the public service operator, these effects would be fully reflected in the operator’s internal accounts.
The Commission’s analysis in recital (365) confirmed that, in the period 20122019, CdI and SNS combined did not receive any overcompensation.
This also holds for SNS by itself, in the years when it operated the new Convention (the 2016-2019 period).
Therefore, the Commission concludes that also the berthing priority complies with the third Altmark criterion.
8.1.3.4.
A l t m a r k 4 (369) The fourth Altmark criterion is fulfilled if the recipient of the compensation for the operation of an SGEI has
been chosen following a tender procedure which allows for the selection of the tenderer capable of providing that SGEI at the least cost to the community or if the compensation has been calculated by reference to the costs of an efficient undertaking.
(370) According to paragraph 63 of the SGEI Communication, the simplest way for public authorities to meet the
fourth Altmark criterion is to conduct an open, transparent and non-discriminatory public procurement procedure in line with Directive 2004/17/EC of the European Parliament and of the Council (137) and Directive 2004/18/EC of the European Parliament and of the Council (138).
(371) Furthermore, paragraph 65 of the SGEI Communication notes that based on the case law of the Court of Justice,
a public procurement procedure only excludes the existence of State aid where it allows for the selection of the tenderer capable of providing the service at ‘the least cost to the community’.
(372) The Commission observes that in this case, the tender procedure took place before the entry into force of
Directive 2014/24/EU of the European Parliament and of the Council (139) (which applies to public contracts awarded for the operation of maritime transport services) and Directive 2014/25/EU of the European Parliament and of the Council (140).
At that time, Directive 2004/17/EC and Directive 2004/18/EC were applicable.
However, Directive 2004/17/EC does not apply to maritime transport services, such as those provided by Siremar (141).
(136) With the exception of 2015 and the first months of 2016 (see footnotes 120 and 121).
While the Commission regrets that Italy has not provided this data, it notes that this only affects the last period when CdI was operating the service, while the assessment of the Commission is focused on SNS, as explained in recital (295).
(137) Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ L 134, 30.4.2004, p. 1).
(138) Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ L 134, 30.4.2004, p. 114).
(139) Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ L 94, 28.3.2014, p. 65).
(140) Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC (OJ L 94, 28.3.2014, p. 243).
(141) Indeed, Article 5 of Directive 2004/17/EC makes clear that only transport services by railway, automated systems, tramway, trolley bus, bus or cable are included in its scope.