Sad Trasporto Locale SpA v Provincia autonoma di Bolzano.

• Jurisdiction: European Union
• Date: 19 October 2023
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Fifth Chamber)

19 October 2023 (*)

(Reference for a preliminary ruling – Transport – Regulation (EC) No 1370/2007 – Public passenger transport services by rail and by road – Scope – Article 1(2) – Cableway installations – Direct award of a transport public service contract by a competent local authority to an internal operator – Transfer of the operating risk – Public service compensation)

In Case C‑186/22,

REQUEST for a preliminary ruling under Article 267 TFEU from the Consiglio di Stato (Council of State, Italy), made by decision of 7 March 2022, received at the Court on 9 March 2022, in the proceedings

Sad Trasporto Locale SpA

v

Provincia autonoma di Bolzano,

other party:

Strutture Trasporto Alto Adige SpA A. G.,

THE COURT (Fifth Chamber),

composed of E. Regan (Rapporteur), President of the Chamber, Z. Csehi, M. Ilešič, I. Jarukaitis and D. Gratsias, Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: C. Di Bella, Administrator,

having regard to the written procedure and further to the hearing on 30 March 2023,

after considering the observations submitted on behalf of:

– Sad Trasporto Locale SpA, by G. Greco and A. Sandulli, avvocati,

– the Provincia autonoma di Bolzano, by L. Fadanelli, P. Mantini, P. Pignatta, L. Plancker and A. Roilo, avvocati,

– Strutture Trasporto Alto Adige SpA A. G., by P. Mantini, avvocato,

– the European Commission, by G. Gattinara, P. Messina and F. Tomat, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 1(2) of Regulation (EC) No 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road and repealing Council Regulations (EEC) Nos 1191/69 and 1107/70 (OJ 2007 L 315, p. 1), as amended by Regulation (EU) 2016/2338 of the European Parliament and of the Council of 14 December 2016 (OJ 2016 L 354, p. 22) (‘Regulation No 1370/2007), and of Article 107(1) TFEU.

2 The request has been made in proceedings between Sad Trasporto Locale SpA and the Provincia autonoma di Bolzano (Autonomous Province of Bolzano, Italy) regarding the direct award, to an internal operator, by means of a concession, of a public passenger transport service on certain rail and cableway networks to Strutture Trasporto Alto Adige SpA A. G. (‘STA’).

Legal context

European Union law

Regulation No 1370/2007

3 Recitals 33 and 36 of Regulation No 1370/2007 are worded as follows:

‘(33) In paragraphs 87 to 95 of [the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415)], the Court of Justice of the European Communities ruled that compensation for public service does not constitute an advantage within the meaning of Article [107 TFEU], provided that four cumulative conditions are satisfied. Where those conditions are not satisfied and the general conditions for the application of Article [107(1) TFEU] are met, public service compensation constitutes State aid and is subject to Articles [93, 106, 107 and 108 TFEU].

…

(36) … Any compensation granted in relation to the provision of public passenger transport services other than those covered by this Regulation which risks involving State aid within the meaning of Article [107(1) TFEU] should comply with the provisions of Articles [93, 106, 107 and 108 TFEU], including any relevant interpretation by the [Court of Justice of the European Union] and especially [the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415)]. When examining such cases, the [European] Commission should therefore apply principles similar to those laid down in this Regulation or, where appropriate, other legislation in the field of services of general economic interest.’

4 Article 1 of that regulation, headed ‘Purpose and scope’, provides in paragraphs 1 and 2 that:

‘(1) The purpose of this Regulation is to define how, in accordance with the rules of Community law, competent authorities may act in the field of public passenger transport to guarantee the provision of services of general interest which are among other things more numerous, safer, of a higher quality or provided at lower cost than those that market forces alone would have allowed.

To this end, this Regulation lays down the conditions under which competent authorities, when imposing or contracting for public service obligations, compensate public service operators for costs incurred and/or grant exclusive rights in return for the discharge of public service obligations.

(2) This Regulation shall apply to the national and international operation of public passenger transport services by rail and other track-based modes and by road, except for services which are operated mainly for their historical interest or their tourist value. Member States may apply this Regulation to public passenger transport by inland waterways and, without prejudice to Council Regulation (EEC) No 3577/92 of 7 December 1992 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) [(OJ 1992 L 364, p. 7)], national sea waters.’

5 Article 2 of that regulation headed ‘Definitions’ states, in points (a), (e), (h), (i), (j) and (aa):

‘For the purpose of this Regulation:

(a) “public passenger transport” means passenger transport services of general economic interest provided to the public on a non-discriminatory and continuous basis;

…

(e) “public service obligation” means a requirement defined or determined by a competent authority in order to ensure public passenger transport services in the general interest that an operator, if it were considering its own commercial interests, would not assume or would not assume to the same extent or under the same conditions without reward;

…

(h) “direct award” means the award of a public service contract to a given public service operator without any prior competitive tendering procedure;

(i) “public service contract” means one or more legally binding acts confirming the agreement between a competent authority and a public service operator to entrust to that public service operator the management and operation of public passenger transport services subject to public service obligations; depending on the law of the Member State, the contract may also consist of a decision adopted by the competent authority:

– taking the form of an individual legislative or regulatory act, or

– containing conditions under which the competent authority itself provides the services or entrusts the provision of such services to an internal operator;

(j) “internal operator” means a legally distinct entity over which a competent local authority, or in the case of a group of authorities at least one competent local authority, exercises control similar to that exercised over its own departments;

…

(aa) “public passenger transport services by rail” means public passenger transport by rail, excluding passenger transport by other track-based modes, such as metros or tramways.’

6 Article 5 of that regulation, headed ‘Award of public service contracts’, states, in paragraph 2:

‘Unless prohibited by national law, any competent local authority, whether or not it is an individual authority or a group of authorities providing integrated public passenger transport services, may decide to provide public passenger transport services itself or to award public service contracts directly to a legally distinct entity over which the competent local authority, or in the case of a group of authorities at least one competent local authority, exercises control similar to that exercised over its own departments. …

…’

Regulation (EU) 2016/424

7 Article 3 of Regulation (EU) 2016/424 of the European Parliament and of the Council of 9 March 2016 on cableway installations and repealing Directive 2000/9/EC (OJ 2016 L 81, p. 1), headed ‘Definitions’, states, in paragraphs 1, 7 and 9:

‘For the purposes of this Regulation the following definitions apply:

(1) “cableway installation” means a whole on-site system, consisting of infrastructure and subsystems, which is designed, constructed, assembled and put into service with the objective of transporting persons, where the traction is provided by cables positioned along the line of travel;

…

(7) “cable car” means a cableway installation where the carriers are suspended from and propelled by one or more cables;

…

(9) “funicular railway” means a cableway installation in which the carriers are hauled by one or more...