Judgments nº T-219/14 of The General Court, April 06, 2017

• Resolution Date: April 06, 2017
• Issuing Organization: The General Court
• Decision Number: T-219/14

(State aid - Maritime transport - Public service compensation - Capital increase - Decision declaring aid incompatible with the internal market and ordering that it be recovered - Liquidation of the recipient undertaking - Continued interest in bringing proceedings - Failure to find that there was no need to adjudicate - Concept of aid - Service of general economic interest - Private investor test - Manifest error of assessment - Error of law - Plea of illegality - Obligation to state reasons - Rights of defence - Decision 2011/21/EU - Guidelines on State aid for rescuing and restructuring firms in difficulty - Union framework applicable to State aid in the form of public service compensation - Altmark judgment)

In Case T-219/14,

Regione autonoma della Sardegna (Italy), represented by T. Ledda, S. Sau, G.M. Roberti, G. Bellitti and I. Perego, lawyers,

applicant,

v

European Commission, represented by G. Conte, D. Grespan and A. Bouchagiar, acting as Agents,

defendant,

supported by

Compagnia Italiana di Navigazione SpA, established in Naples (Italy), represented initially by F. Sciaudone, R. Sciaudone, D. Fioretti and A. Neri, and subsequently by M. Merola, B. Carnevale and M. Toniolo, lawyers,

intervener,

APPLICATION under Article 263 TFEU for annulment of Commission Decision C(2013) 9101 final of 22 January 2014 concerning aid measures SA.32014 (2011/C), SA.32015 (2011/C), SA.32016 (2011/C) granted by the Autonomous Region of Sardinia (Italy) to the maritime company Saremar in the form of public service compensation and a capital increase, in so far as that decision found those measures to be State aid incompatible with the internal market and ordered that it be recovered,

THE GENERAL COURT (Eighth Chamber),

composed of D. Gratsias (Rapporteur), President, M. Kancheva and N. Półtorak, Judges,

Registrar: J. Palacio González, Principal Administrator,

having regard to the written part of the procedure and further to the hearing on 20 July 2016,

gives the following

Judgment

Background to the dispute

1. Facts

   1 Saremar - Sardegna Regionale Marittima SpA (‘Saremar’) is a company currently in liquidation which, since it was established, ensured a public service of maritime cabotage, on the one hand, between Sardinia (Italy) and the small Sardinian islands and, on the other, between Sardinia and Corsica (France). Saremar’s public service task was initially governed by a vicennial agreement concluded on 17 October 1991 with the Italian State, which entered into effect retroactively on 1 January 1989 and the end of which was fixed at 31 December 2008. The privatisation of Saremar was provided for in Article 19b of decreto-legge 25 settembre 2009, n. 135, Disposizioni urgenti per l’attuazione di obblighi comunitari e per l’esecuzione di sentenze della Corte di giustizia delle Comunita’ europee, convertito in legge, con modifiche, dalla legge 20 novembre 2009 (Decree Law No 135 of 25 September 2009 on urgent measures with a view to implementing Community obligations and complying with decisions of the Court of Justice of the European Communities, converted into a law, with amendments, by Law No 166/2009 of 20 November 2009 (‘the 2009 Law’)) (GURI No 223 of 25 September 2009 and GURI No 274 of 24 November 2009, Ordinary Supplement No 215).

   2 Saremar was initially part of the Tirrenia Group. The group originally comprised five other companies as well: Tirrenia di Navigazione SpA (‘Tirrenia’), a national maritime cabotage company providing, inter alia, transport links between Sardinia and the mainland; Adriatica, Caremar and Siremar, regional maritime cabotage companies; and, lastly, Fintecna - Finanziaria per i Settori Industriale e dei Servizi SpA. The latter company held 100% of the capital in Tirrenia, which itself held all of the capital in the abovementioned regional companies and in Saremar. Fintecna was wholly owned by the Italian State.

   3 Under Article 19b of the 2009 Law, Saremar’s capital was transferred, free of charge, to the Regione autonoma della Sardegna (‘the applicant’ or ‘the RAS’) with a view to the privatisation of that company. The same provisions also provided for the conclusion of a new public service contract between Saremar and the RAS, which was to take effect at the time of the privatisation. However, on the date of the facts of the present dispute, Saremar’s privatisation process was still ongoing and it was still 100% owned by the RAS. Thus, until 31 July 2012, Saremar’s public service obligations relating to the transport links referred to in paragraph 1 above were governed as part of the successive extensions of the initial vicennial agreement concluded with the Italian State. As from 1 August 2012, those obligations were maintained as part of an agreement concluded between Saremar and the RAS that was to produce its effects until the completion of that privatisation process, in accordance with legge regionale n. 15 del 7 agosto 2012, Disposizioni urgenti in materia di trasporti (Regional Law No 15 of 7 August 2012 on urgent measures for transport) (‘the 2012 Regional Law’) (Bollettino ufficialedella Regione autonoma della Sardegna No 35, of 9 August 2012, p. 5).

   4 In parallel, Tirrenia was put up for sale in 2010. It had been placed under an extraordinary administration procedure by Presidential Decree of 5 August 2010 and, in the course of its privatisation process, it continued to ensure the routes between Sardinia and the mainland. That process ended in July 2012 with its being acquired by the intervener, Compagnia Italiana di Navigazione SpA (‘CIN’), which is a consortium of private shipowners operating on the same maritime routes. A new agreement was then concluded between that consortium and the Italian State. It should also be explained that, in 2011, those routes were operated by four private operators: Moby, Forship, SNAV and Grandi Navi Veloci.

   5 The national competition authority, the Autorità Garante della Concurrenza e del Mercato (Italy) (‘the AGCM’), opened an investigation procedure following numerous complaints about fare increases introduced by those private operators for the 2011 summer period. In its decision of 11 June 2013, the AGCM found that those fare increases constituted a concerted practice contrary to Article 101 TFEU. That decision was annulled by the judgment of 29 January 2014 of the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy).

   6 It was in that context that, on 26 April 2011, the RAS adopted delibera n. 20/57 (Regional Decision No 20/57), in which it requested Saremar to examine the possibility of operating at least two routes between Sardinia and the mainland on an experimental basis for the period from 15 June to 15 September 2011. In that regard the RAS referred to the adverse effects of those private operators’ fare increases on Sardinia’s economic and social system and the need to take urgent measures in response to that situation. In that Regional Decision, the RAS stated that those routes had to be mixed (passenger and freight transport) and that the economic and financial sustainability of the activity had to be taken into account. Next, the RAS, by delibera n. 25/69 (Regional Decision No 25/69) of 19 May 2011, and delibera n. 27/4 (Regional Decision No 27/4) of 1 June 2011, in essence, approved the fares proposed by Saremar, firstly, in relation to the route Golfo Aranci-Civitavecchia for the period between 15 June and 15 September 2011 inclusively and, secondly, in relation to the route Vado Ligure-Porto Torres for the period between 22 June and 15 September 2011 inclusively. The latter two regional decisions authorised Saremar to introduce variations in the fares system adopted in order to reconcile budgetary balance with maximum consumer satisfaction.

   7 On 1 September 2011, the RAS adopted delibera n. 36/6 (Regional Decision No 36/6). In that regional decision, taking the view that an interruption in the maritime cabotage service ensured by Saremar on the routes to and from the mainland would have the effect of reinstating a monopoly situation on those routes, the RAS requested Saremar to examine, on the basis of a business plan and on an experimental basis, the viability of a maritime cabotage service for the period between 30 September 2011 and 30 September 2012 inclusively on at least one of the following three routes: the Olbia-Livorno route, the Porto Torres-Livorno route and the Cagliari-Piombino route. The Regional Decision provided that, in the course of that examination, Saremar had to take into consideration transport demand and the economic and financial sustainability of the cabotage service.

   8 Moreover, in the same Regional Decision, the RAS defined the measures to be taken in order to compensate for the losses suffered by Saremar in connection with Tirrenia’s bankruptcy proceedings. Saremar had had to devaluate 50% of its claims against Tirrenia, amounting to EUR 11 546 403.59, which had caused it to record a loss of EUR 5 253 530. 05 in 2010. The RAS therefore decided, firstly, to cover that loss by reducing Saremar’s capital by EUR 4 890 950.36, once the legal reserves and profits from previous years had been exhausted. Secondly, noting that, under Article 2446 of the Italian Civil Code, the shareholder of a company whose capital has been reduced by more than a third is bound to recapitalise the company, the RAS decided to grant a Saremar a capital increase, subsequently to the aforementioned reduction and in the same amount. On 28 March 2012, the shareholders’ meeting of Saremar voted for that capital reduction and, on 15 June 2012, the subsequent capital increase (‘the disputed capital increase’). On 11 July 2012, the same shareholders’ meeting paid part of that capital increase in the amount of EUR 824 309.69.

   9 On 1 December 2011, the RAS adopted delibera n. 48/65 (Regional Decision No 48/65), by which it ordered Saremar to activate immediately the mixed...