Judgments nº T-108/16 of Tribunal General de la Unión Europea, March 15, 2018

• Resolution Date: March 15, 2018
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-108/16

(State aid - Conditions of use of the Puerto Las Nieves port infrastructure by a shipping company - Exclusive use of infrastructures financed by public funds, without a concession contract - Partial exoneration of payment of port dues - Complaint lodged by a competitor - Decision finding no State aid at the end of the preliminary investigation procedure - Serious difficulties in the examination of the measures concerned - Developments in the situation during the administrative procedure - Concept of advantage granted by means of State resources - Errors of assessment of the facts and errors of law - Decision of a national court suspending the effects of a tendering procedure - Requirement of diligent and impartial examination of the complaint)

In Case T-108/16,

Naviera Armas, SA, established in Las Palmas de Gran Canaria (Spain), represented by J. L. Buendía Sierra and Á. Givaja Sanz, lawyers,

applicant,

v

European Commission, represented by A. Bouchagiar, G. Luengo and S. Noë, acting as Agents,

defendant,

supported by

Fred Olsen, SA, established in Santa Cruz de Tenerife (Spain), represented by F. Marín Riaño, lawyer,

intervener,

APPLICATION under Article 263 TFEU for annulment of Commission Decision C(2015) 8655 final of 8 December 2015 concerning State aid SA.36628 (2015/NN) (ex 2013/CP) - Spain - Fred Olsen,

THE GENERAL COURT (Ninth Chamber),

composed of S. Gervasoni, President, L. Madise and R. da Silva Passos (Rapporteur), Judges,

Registrar: J. Palacio González, Principal Administrator,

having regard to the written part of the procedure and further to the hearing on 21 September 2017,

gives the following

Judgment

Background to the dispute

1 The applicant, Naviera Armas, SA, is a shipping company established in the Canary Islands (Spain). It operates commercial ferry routes for the transport of passengers and freight linking the main islands of the archipelago, the archipelago with continental Spain and continental Spain with Morocco. In particular for the present purposes, the applicant operates a ferry route linking the port of Las Palmas de Gran Canaria (Spain) with that of Santa Cruz de Tenerife (Spain).

2 As Gran Canaria and Tenerife are the most populated of the Canary Islands, commercial maritime traffic between the two accounts for a substantial portion of the turnover of the shipping companies active in the Canary Islands.

Commercial maritime transport out of Puerto de Las Nieves (Gran Canaria)

3 Puerto Las Nieves (Spain) (‘Puerto de Las Nieves’) is a port situated on the northwest coast of Gran Canaria, across from Tenerife. Previously a fishing port, it was adapted for commercial traffic in the mid-1990s. Since the end of the 1990s, its infrastructure has allowed for docking of fast-ferries.

4 The shipping company Fred Olsen, SA, which is one of the applicant’s principal competitors, was, in November 1993, the first to apply for authorisation to establish a regular commercial transport link for passengers and freight between the ports of Puerto de Las Nieves and Santa Cruz de Tenerife.

5 By decision of 21 December 1994, the Spanish Ministry of Public Works, Transport and the Environment granted an exclusive right to Fred Olsen to operate a cabotage route between those two ports. That authorisation was granted on the basis of the principle prior in tempore, potior in jure.

6 Since that time, Fred Olsen has been the sole shipping company operating a route for the commercial transport of passengers and freight between the ports of Puerto de Las Nieves and Santa Cruz de Tenerife. Since 1999, that route has been covered by two fast-ferries that meet halfway through the crossing, with each vessel leaving its port of departure at the same time.

7 Fred Olsen’s use of the port infrastructure at Puerto de Las Nieves is subject to the payment of several sets of dues provided for by Article 115a of decreto legislativo 1/1994 por el que se aprueba el texto refundido de las disposiciones legales vigentes en materia de tasas y precios públicos de la Comunidad Autónoma de Canarias (Legislative Decree 1/1994 approving the reform on the legal provisions in force on taxes and public prices of the Autonomous Community of the Canary Islands) of 29 July 1994 (BOC No 98 of 10 August 1994, p. 5603). Those dues pertain inter alia to the entry and sojourn of vessels in the port (‘the T-1 port dues’), docking (‘the T-2 port dues’), passengers (‘the T-3 port dues’), freight (‘the T-4 port dues’) and storage services, premises and buildings (‘the T-9 port dues’).

8 On a number of occasions since 1994, the applicant has applied several times to the Directorate General for Ports of the Canary Islands (Dirección General de Puertos - ‘the DGPC’) for permission to dock at Puerto de Las Nieves, beginning with conventional ferries and, since the request submitted on 3 July 2013, with a fast-ferry. Until completion of the extension works on the Puerto de Las Nieves port infrastructure in 2014, the DGPC refused each of those requests. Those decisions were, in essence, based on the limited docking capacity at Puerto de Las Nieves and the need to ensure safety of vessel manoeuvres upon entry and within the port.

9 The same reasons were given by DGPC for refusing the request submitted in 2004 by another shipping company (Trasmediterránea) for permission to dock at Puerto de Las Nieves using a fast-ferry.

Administrative procedure and developments in the situation during that procedure

10 On 26 April 2013, the applicant lodged a complaint with the European Commission alleging, inter alia, that, through various measures relating to Puerto de Las Nieves, the Spanish authorities had granted unlawful State aid to Fred Olsen (‘the complaint’).

11 According to the complaint, that aid resulted from, firstly, the DGPC’s decision to grant Fred Olsen the exclusive right to develop commercial maritime transport activities out of Puerto de Las Nieves without having held an open, transparent and non-discriminatory public tendering procedure; secondly, a partial exoneration for Fred Olsen from the payment of certain port charges, being the T-2 and T-9 port dues; and, thirdly, the financing through public funds of infrastructure built for the exclusive use of Fred Olsen in Puerto de las Nieves.

12 A non-confidential version of the complaint was sent to the Spanish authorities, who submitted their observations on 4 July 2013. On 20 August 2013 the Spanish authorities sent the Commission additional observations in response to a request for information from the Commission.

13 On 22 October 2013, the Commission sent the applicant a letter in which it set out a preliminary assessment stating that the measures in question did not prima facie qualify as State aid within the meaning of Article 107(1) TFEU. The letter addressed to the applicant gave the impression that the Spanish authorities had, on the one hand, provided evidence of proper payment of port dues by Fred Olsen and, on the other, produced a technical report demonstrating the limited capacity at Puerto de Las Nieves. That letter also referred to the Spanish authorities’ intention to expand the port infrastructure.

14 By letter of 13 December 2013, the applicant challenged that preliminary assessment and underscored the need for the Commission to open a formal investigation procedure under Article 108(2) TFEU. On 18 February 2014, those comments were forwarded by the Commission to the Spanish authorities, who replied on 18 March 2014.

15 In October 2014, the Commission learned through the press that a tendering procedure had been organised with a view to granting access to the Puerto de Las Nieves port infrastructure for the purposes of commercial maritime transport. Acting on its own initiative, Fred Olsen submitted observations to the Commission, following which the Commission, by letter of 9 December 2014, requested the Spanish authorities to provide it with certain information and to keep it informed regularly of developments in that tendering procedure. The Spanish authorities replied to that letter on 16 January 2015 and subsequently kept the Commission informed through letters between February and October 2015. Fred Olsen also informed the Commission of developments in the tendering procedure on two occasions in the course of 2015.

16 According to the information provided to the Commission, the tendering procedure in question had been published by the DGPC on 14 October 2014, with a view to awarding two batches relating to time slots for commercial traffic at Puerto de Las Nieves. That tendering procedure followed expansion works at the port in 2014 carried out in order to enable two fast-ferries to dock there at the same time. On 24 November 2014, the Board of Directors of DGPC rejected the action brought by Fred Olsen challenging that tendering procedure. By decision of 3 February 2015, it awarded the first batch to Fred Olsen and the second to the applicant, the only two companies to have submitted tenders.

17 Fred Olsen challenged the outcome of that tendering procedure before the Tribunal Superior de Justicia de Canarias, Sala de lo Contencioso-Administrativo, Sección Primera de Santa Cruz de Tenerife (High Court of the Canary Islands, Administrative Division, First Section, Santa Cruz de Tenerife, Spain), on the grounds that it infringed the rules on public procurement. In parallel with its action on the substance, Fred Olsen sought judicial suspension of the tendering procedure. The suspension was granted by order of 27 February 2015 (‘the suspension order of 27 February 2015’), upheld by order of the Tribunal Supremo (Supreme Court, Spain) of 7 July 2016.

18 By letter of 6 October 2015, the applicant requested the Commission to act within the meaning of Article 265 TFEU. On 28 October 2015, the Commission sent the Spanish authorities a final request for information, to which they replied on 23 November 2015.

The contested decision

19 On 8 December 2015...