L 200/190
EN
Official Journal of the European Union
29.7.2022
5.1.2.4.
A l tm a r k 4
(218) 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 the SGEI at the least cost to the community or, failing that, the compensation has been calculated by reference to the costs of an efficient undertaking.
(219) 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 (70) and Directive 2004/18/EC of the European Parliament and of the Council (71).
(220) The Commission observes that in the present case, the tender procedure was launched before the entry into force of Directive 2014/24/EU of the European Parliament and of the Council (72) (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 (73).
At that time, Directive 2004/17/EC and Directive 2004/18/EC were still in force.
However, Directive 2004/17/EC does not apply to maritime transport services, such as those provided by Laziomar.
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.
(221) Public contracts awarded by the contracting authorities in the context of their service activities for maritime, coastal or river transport fall instead within the scope of Directive 2004/18/EC on the basis of its recital 20.
However, water transport services are also listed in Annex II B to that Directive which implies (74) that they are only subject to its Articles 23 and 35(4).
This means that, under Directive 2004/18/EC, a public contract for maritime transport services is subject only to the obligations concerning technical specifications (Article 23) and to the obligation to publish a contract award notice (after the contract has been awarded and, therefore, at the end, not at the beginning, of the award procedure: Article 35(4)).
All the other rules dictated by Directive 2004/18/EC – including the provisions on the content of notices to be published (Article 36(1)) and the provisions on selection criteria (Articles 45 to 52) – are not applicable to public contracts for maritime transport services.
(222) Furthermore, Directive 2004/18/EC does in any case not apply to service concessions as defined in its Article 1(4) (75).
The Commission notes that service concessions (and public contracts), which have certain cross-border interest nevertheless remain subject to the general Treaty principles of transparency, non-discrimination and equal treatment.
(223) On the basis of the above, the Commission concludes that Directive 2004/18/EC can only apply in case of a public contract but not when it concerns a service concession.
In addition, since the present case concerns water transport services subjected to a public service contract, only some of that Directive’s requirements, as aforementioned, would be applicable.
Against this background, the Commission considers that it cannot rely solely on compliance with the Public Procurement Directives to demonstrate that compliance with the fourth Altmark criterion.
For this reason, the (70) 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).
(71) 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).
(72) 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).
(73) 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).
(74) Under Article 21 of Directive 2004/18/EC.
(75) Article 1(4) of Directive 2004/18/EC reads: ‘“Service concession” is a contract of the same type as a public service contract except for the fact that the consideration for the provision of services consists either solely in the right to exploit the service or in this right together with payment.’