(1)

According to several complaints registered with the Commission since May 2006, the Spanish scheme applicable to shipping companies since 2002 (Spanish Tax Lease System) allowed maritime transport companies to buy ships in Spain at a 20-30 % rebate. In particular, two national federations of shipyards and one individual shipyard complained that this scheme resulted in the loss of shipbuilding contracts from their members to Spanish shipyards. On 13 July 2010, shipbuilding associations of seven European countries together signed a petition against the so-called Spanish Tax Lease system (hereinafter ‘STL’). At least one shipping company supported these complaints. In August 2010, a Member of the European Parliament asked a question on the same topic (2).

(2)

By letters of 15 September 2006, 30 January 2007, 6 November 2007 and 3 March 2008, the Commission sent Spain requests for information. Spain answered by letters of 16 October 2006, 23 and 27 February 2007, and 11 January and 27 March 2008. At a meeting held on 29 April 2008, the Commission requested additional information which Spain provided by letter of 17 June 2008. The Commission requested further additional information by letter of 23 September 2008, which Spain provided by letter of 24 October 2008.

(3)

Following new information from complainants, the Commission requested further additional information by letters of 11 January and 25 May 2010. Spain answered by letters of 10 March and 26 July 2010. A meeting with the Spanish authorities took place on 24 January 2011.

(4)

By letter dated 29 June 2011, the Commission informed Spain that it had decided to initiate the procedure laid down in Article 108(2) of the Treaty on the Functioning of the European Union in respect of the aid.

(5)

By letter dated 2 August 2011, Spain commented on the decision to open formal proceedings.

(6)

The Commission decision to initiate the formal investigation procedure (hereinafter ‘Decision C(2011) 4494 final’) was published in the Official Journal of the European Union (3). The Commission invited interested parties to submit their comments on the measures.

(7)

The Commission received comments from several interested parties. By letters of 23 February, 7 March, 11 July and 29 October 2012, and 12 and 25 February and 22 April 2013, it forwarded them to Spain, which was given the opportunity to react. Its comments were received by letters dated 30 April, 24 May, 9 and 23 July and 14 November 2012, and 25 February, 12 March and 21 May 2013. Spain also submitted additional observations by letters of 3 and 9 October 2012. At their request, the Commission had meetings with Pequeños y Medianos Astilleros en Reconversión (PYMAR) (4) on 13 November 2012 and 4 February 2013, and with the Spanish authorities on 6 March 2013.

(8)

The Spanish Tax Lease system is used in transactions involving the building by shipyards (sellers) and the acquisition by maritime shipping companies (buyers) of sea-going vessels and the financing of these transactions by means of an ad hoc legal and financial structure.

(9)

The STL system is based on:

(10)

At the Commission’s request, the Spanish authorities have confirmed that the STL was used in 273 shipbuilding and acquisition transactions between 1 January 2002 and 30 June 2010, for a total value of EUR 8 727 997 332. The scheme continued to apply until 29 June 2011, when the formal investigation procedure was initiated. Buyers are shipping companies from all over Europe and beyond. All but one of the transactions (a contract for EUR 6 148 969) involved Spanish shipyards.

(11)

As stated, an STL operation allows a shipowner to have a new vessel built with a 20-30 % rebate on the price charged by the shipyard. In order to obtain the discounted price (after deducting the rebate), a shipping company must agree not to buy the vessel directly from the shipyard but from an economic interest grouping (EIG) incorporated under Spanish law and set up by a bank.

(12)

The STL structure is a tax planning scheme generally organised by a bank in order to generate tax benefits for investors in a tax transparent EIG and transfer part of these tax benefits to the shipping company in the form of a rebate on the price of the vessel. The rest of the benefits are kept by the investors in the EIG as remuneration for their investment. In addition to the EIG, an STL operation also involves other intermediaries, such as a bank and a leasing company (see chart below).

Shipyard

Novated Shipbuilding Contract

Gross price

Leasing Co

Leasing Contract

E I G

Transfer of losses

Equity

Investors

Initial shipbuilding contract

Net price

Bareboat contract

Put & Call option

Ship -owner

(13)

In practice, the EIG leases the vessel from a leasing company from the date that it starts to be built. Once it has been built, the EIG charters out the vessel to the shipping company, on a bareboat basis, and the shipping company starts operating the vessel. In any case, the EIG undertakes to buy the vessel at the end of the leasing contract and the shipping company undertakes to buy the vessel at the end of the bareboat charter contract, by means of reciprocal buy and sell option contracts (5). The date of exercising the options established by the leasing contract is set a few weeks before the exercise date of the option set by the bareboat charter. Both options are exercised once the EIG comes under the tonnage tax system (for a more detailed description, see Section 2.2.4 Measure 4: Tonnage tax). A framework agreement is signed by the parties involved to make sure that they all agree on the organisation and functioning of the STL structure.

(14)

The transactions that take place between the different participants in the STL operation have been described in more detail in Decision C(2011) 4494 final (Section 2.2) (6) on the basis of the examples provided by Spain (7).

(15)

The purpose of the STL scheme described in Section 2.1 above is first to generate the benefits of certain tax measures in favour of the EIG and the investors participating in it, which will then pass on part of those benefits to the shipping company that acquires a new vessel.

(16)

The EIG collects the tax benefits in two stages under two different sets of tax rules. In the first stage, early and accelerated depreciation of the leased vessel is applied within the ‘normal’ corporate income tax system. This generates heavy tax losses for the EIG. Because of the EIG’s tax transparency, these tax losses are deductible from the investors’ own revenues pro rata to their shares in the EIG.

(17)

In normal circumstances, the tax savings made by this early and accelerated depreciation of the cost of the vessel should be offset later on by increased tax payments either when the vessel is completely depreciated and no more depreciation costs can be deducted or when the vessel is sold and a capital gain results from the sale (8). Because of the EIG’s tax transparency, its increased profits in later years would normally be added to the investors’ own revenues and would be liable to tax.

(18)

However, in an STL operation, the EIGs do not keep the vessels after full depreciation is achieved. In the second stage, the tax savings resulting from the initial losses transferred to the investors are then safeguarded as a result of the EIG’s switchover to the tonnage tax (TT) system of income taxation and the full exemption of the capital gains resulting from the sale of the vessel — shortly after switching to the new system — to the shipping company (9). For further details about these two stages, see Decision C(2011) 4494 final (Section 2.3.1).

(19)

According to information available to the Commission (10), the combined effect of the tax measures used in the STL enables the EIG and its investors to achieve a tax gain of approximately 30 % of the initial gross price of the vessel. Part of this tax gain — initially collected by the EIG/its investors — is kept by the investors (10-15 %) and part of it is passed on to the shipping company (85-90 %), which in the end becomes the owner of the vessel, with a 20 % to 30 % reduction in the initial gross price of the vessel.

(20)

As already stated, STL operations combine different individual — yet interrelated — tax measures in order to generate a tax benefit. The section below briefly describes these measures. For a more detailed description, see Decision C(2011) 4494 final (Section 2.4).

(21)

In Spain, the tax treatment of a leasing transaction is different from its accounting treatment. Chapter XIII of Royal Legislative Decree 4/2004 of 5 March 2004 approving the consolidated version of the Law on Corporate Tax (TRLIS) (12) and Article 49 of Royal Decree 1777/2004 of 30 July 2004 approving the Regulation on Corporate Tax (RIS) (13), apply to finance leasing contracts with a minimum duration of two years if they relate to movable property and 10 years if they relate to immovable property or industrial establishments.

(22)

For tax purposes only, the portion of the payments that allows the lessor to recover the cost of the asset (14) is considered tax-deductible expenditure within certain limits, namely: the amount deducted may not exceed the amount obtained by multiplying the cost of the asset by twice or three times the official coefficient of maximum straight-line depreciation for the type of asset.

(23)

In the case of vessels, the normal straight-line depreciation is spread — for tax purposes — over 10 years (10 % per year). The maximum accelerated depreciation rate for leased assets ranges between 20 % and 30 % per year (from 40 to 60 months). Under Spanish law, owners of vessels can also depreciate according to the declining balance method (15) or the sum-of-the-years-digit method (SYD) (16).

(24)

Under Article 115(6) TRLIS, the accelerated depreciation of the leased asset starts on the date on which the asset becomes operational, i.e. not before the asset is delivered to and starts being used by the lessee. However, pursuant to Article 115(11) TRLIS (17), the Ministry of Economic Affairs and Finance may, upon formal request by the lessee, determine an earlier starting date for depreciation. In principle, this provision applies, under certain conditions, to all leased assets covered by a leasing contract and eligible for accelerated depreciation.

(25)

In fact, Article 115(11) TRLIS imposes two general conditions. First, the new starting date should be determined taking account of ‘the specific characteristics of the contracting or construction period for the asset and the specific nature of its economic use’. Pursuant to Article 49 RIS, the tax authorities only authorise early depreciation from the beginning of the construction period when this construction period is over 12 months, and the leasing contract provides for anticipated lease payments. Second, ‘determining this date (should) not affect the calculation of the taxable amount arising from the actual use of the asset or the payments resulting from the transfer of ownership, which must be determined in accordance with either the general tax regime or the special regime provided for in Chapter VIII of Title VII TRLIS’.

(26)

According to Article 48(4) TRLIS (18), the assets covered by the early depreciation scheme described in Article 115(1) TRLIS will be leased to EIGs registered in Spain, which, in turn, will sublease them to third parties. Furthermore, Article 49 RIS establishes the procedure to be followed when filing an application for the early depreciation of leased assets.

(27)

As already stated, Spanish EIGs have a separate legal personality from that of their members. As a result, EIGs can file an application both for the early depreciation measure and for the alternative tonnage taxation scheme provided for by Articles 124-128 TRLIS (see Section 2.2.4.) if they meet the eligibility requirements under Spanish law, even if none of their members is a shipping company.

(28)

However, from a tax perspective, EIGs are transparent with respect to their Spanish resident shareholders. In other words, for tax purposes, profits (or losses) made by EIGs are directly attributed to their Spanish resident members on a pro rata basis. Since the EIGs involved in STL operations are regarded as an investment vehicle by their members — rather than as a way of carrying out an activity jointly — this Decision refers to them as investors.

(29)

EIGs’ tax transparency means that the substantial losses incurred by the EIG through early and accelerated depreciation can be passed on directly to the investors, who can offset these losses against profits of their own and reduce the tax due.

(30)

The Spanish TT legislation has applied since 2002. It provides for an alternative calculation of the taxable profits of shipping companies in respect of their eligible transport activities, based on tonnage operated rather than the difference between revenue and expenditure.

(31)

The Commission authorised (19) the Spanish TT scheme as compatible State aid on the basis of the Community Guidelines on State aid to maritime transport (20) (hereinafter ‘the Maritime Guidelines’). The provisions governing the TT scheme are contained in Chapter XVII, Articles 124 to 128 TRLIS.

(32)

Spain also adopted implementing measures contained in Title VI, Articles 50 to 52 of the RIS. The Commission notes that, contrary to the rules set out in Articles 124-128 TRLIS, which were notified to and approved by the Commission, these implementing measures — and in particular the exception contained in Article 50(3) RIS (see Section 2.2.5) — were not notified to or authorised by the Commission.

(33)

As in other Member States, joining the Spanish TT scheme is optional and requires prior authorisation from the tax authorities, valid for 10 years. Revenues from non-shipping — or non-eligible — activities are subject to normal income tax rules.

(34)

Under Spanish law, EIGs involved in the STL can be entered in one of the registers of shipping companies (21) because, according to the Spanish authorities, their activities include the operation of their own and chartered vessels. The concept of operating a vessel would therefore include making a vessel available to a third party under a bareboat charter.

(35)

The tax base for eligible shipping activities is calculated according to gross tonnage:

(36)

Once the alternative tax base is calculated according to the gross tonnage operated by the shipping company, the normal corporate tax rate is applied to this base.

(37)

Pursuant to the first indent of Article 125(2) TRLIS, the TT taxable base is deemed to include all revenues from (eligible) shipping activities on the high seas including, in particular, the capital gains realised when vessels — acquired new by an undertaking benefiting from the TT system — are subsequently sold while the undertaking remains under the TT system. Conversely, under normal corporate income tax rules, since the tax base is determined as the difference between revenue and expenditure, when vessels are acquired by an undertaking and subsequently sold with a capital gain, these exceptional capital gains constitute taxable revenue and will thus increase the taxable base on which corporate tax will be levied.

(38)

Special rules apply where a vessel — which is no longer new — and the taxation of its revenue are transferred from the normal corporate tax system to the TT system. In the case of vessels already owned by an undertaking when it joins the TT system, or of second-hand vessels (hereinafter ‘used’ vessels) purchased when an undertaking already benefits from the TT system, a special procedure provided for in Article 125(2) TRLIS (22) applies. Under this procedure, the taxation of certain amounts takes place under normal corporate tax arrangements only when the vessel is subsequently sold:

(39)

Thus, under normal application of the Spanish TT system, as approved by the Commission, potential capital gains are taxed on entry into the TT system and it is assumed that the taxation of capital gains, even though it is delayed, takes place later on when the vessel is sold or dismantled. As explained in Section 2.2.5, under the STL system, this taxation is not deferred but completely avoided because the vessels concerned are deemed to be new, not used. Hence, the special procedure does not apply.

(40)

In the case of the authorised STL transactions, the Commission observes that the EIGs can leave the normal corporate income taxation system to join the TT system without settling the hidden tax liability resulting from the early and accelerated depreciation either upon entry into the TT system or subsequently when the vessel is sold or dismantled.

(41)

Indeed, by way of exception from the rule set out in Article 125(2) TRLIS, Article 50(3) RIS (23) states that when vessels are acquired through a call option as part of a leasing contract previously approved by the tax authorities, those vessels are deemed to be new (24) — not used — without taking into consideration whether they have already been operated or depreciated — as of the date the leasing option is exercised, i.e. after the EIG’s switch to the TT system. According to the information available to the Commission, this exception was only applied to specific leasing contracts approved by the tax authorities in the context of applications for early depreciation pursuant to Article 115(11) TRLIS (see Section 2.2.2 above, Measure 2: Discretionary application of early depreciation of leased assets) i.e. in relation to leased newly built sea-going vessels acquired through STL operations, and — with one exception — from Spanish shipyards.

(42)

In such cases, the vessel is deemed to have been acquired new by the EIG on the date the leasing option was exercised, i.e. after the EIG’s entry into the TT system. The first consequence of the exception provided for in Article 50(3) RIS is that the application of the rules set out in Article 125(2) TRLIS is avoided. The EIG does not need to establish a non-distributable reserve and neither the positive difference between the price paid by the shipping company and the accounting value of the vessel in the EIG’s books (25), nor the positive difference between the accounting value and the tax value of the vessel (26) is taxed. The second consequence is that the revenue from the sale to the shipping company (the substantial bareboat charter option exercise price) is deemed to originate from a vessel bought and sold by an undertaking benefiting from the TT system and will be included in the TT taxable base pursuant to the first indent of Article 125(2) TRLIS.

(43)

As a first step, the Commission took the view that the Spanish Tax Lease system, in spite of the application of different tax measures, should be analysed as one single system (global approach) because the different measures could only be used jointly — de jure or de facto — and concluded that it constituted State aid.

(44)

As a second step, the individual measures were assessed separately (individual approach) and the Commission concluded at that stage as follows:

However, the Commission questioned two aspects related to the TT system:

(45)

The potential recipients of the aid were identified as:

(46)

The Commission considered that the aid did not appear to be compatible with the internal market.

(47)

Comments were received from the Spanish authorities and from 41 third parties including public authorities, sectoral associations and individual undertakings either involved in STL operations or competitors of those involved, such as foreign shipyards or shipbuilding associations.

(48)

The observations address the following aspects of the Commission’s assessment made in Decision C(2011) 4494 final:

(49)

Spain considers that the Commission initiated the formal investigation procedure without duly checking its main conclusions with the Spanish authorities. As a consequence, the Spanish State’s right of defence and the adversarial principle essential to any administrative procedure has been infringed.

(50)

According to a number of third parties, the Commission should have used the existing aid procedure, because if they constitute aid, the two tax measures involved (depreciation rules for leased assets and the TT system) would be existing aid.

(51)

Holland Shipbuilding considers that the STL should be viewed as a single system because it is an organised system which deliberately exploits different tax measures to produce an economic advantage which is far greater than the total advantage that could be gained from applying the different measures separately and because the measures are interdependent. The use of the TT system allows EIGs to make the temporary tax advantage generated by early and accelerated depreciation permanent. The vague conditions imposed on the application of early depreciation and their interpretation by the Spanish authorities confer discretionary powers on the tax administration. This is borne out by the fact that, in practice, the authorisation is only granted if the switch is made from the normal corporate taxation system to the TT system.

(52)

Danish Maritime and […] (*1) (30) also regard the STL as a whole as a State aid scheme that — regardless of who the recipients are — clearly gives an economic advantage to certain undertakings.

(53)

However, Spain and the undertakings identified by the Commission as potential recipients of aid (shipping companies, banks, investors in EIGs, shipyards involved in STL operations) challenge this global approach.

(54)

They consider that the STL is not enshrined as such in the Spanish tax legislation, that STL operations are private agreements (leasing, bareboat charter, EIG) concluded by private parties that are free to choose the cheapest way to finance an asset and use the contractual and tax arrangements available to them. They also maintain that Spain should not be held responsible for advantages acquired by taxpayers in a move to reduce their tax burden. Moreover, the tax legislation does not require the use of all the measures mentioned by the Commission in Decision C(2011) 4494 final.

(55)

The Asociación Española de Banca (the Spanish Banking Association — AEB) considers that it is the first time that the Commission has identified State aid in a combination of legal transactions between private entities rather than in a legal provision.

(56)

Rather than a system, the AEB considers that there are two different schemes (the depreciation scheme and the TT) which can clearly be split and treated separately, regardless of whether they are used separately or jointly.

(57)

In addition, the AEB considers that the Commission failed to identify a general system of reference before identifying a selective advantage. According to the AEB, there are very many ways of financing the acquisition of an asset using different combinations of legal instruments and tax measures and the Commission should compare all these alternative situations. Concluding that the STL confers a selective advantage on certain companies would therefore be artificial, especially if the Commission uses as a reference the most costly way — from a tax point of view — to finance an investment thereby ignoring all the incentive measures available to investors.

(58)

Consequently, the STL does not confer a selective advantage. This is borne out in particular by the fact that the Commission identifies several potential recipients which do not correspond to economic sectors. Referring to the Commission Notice on the application of the State aid rules to measures relating to direct business taxation (31) (hereinafter ‘the Commission Notice on business taxation’) and to the Commission Decision concerning the Dutch Groepsrentebox (32), the AEB considers that it cannot be concluded that the measure is selective because it is of more benefit to members of EIGs investing in sea-going vessels rather than in other assets.

(59)

As the STL consists solely of private parties using general tax measures in the context of private agreements, there are no state resources involved.

(60)

According to the AEB, there is no effect on competition and trade between Member States because the main recipients identified by the Commission are shipping companies and the measure is available to all shipping companies from Europe and elsewhere in the world.

(61)

In their comments, these third parties describe the STL as a series of unrelated measures (individual approach) and make no further comments about the STL as a whole.

(62)

According to Spain and certain third parties, this measure is generally applicable to all types of assets and all sectors. The different tax and accounting treatment of leasing fees does not entail any de facto selectivity, which is borne out by the diversity of the sectors applying this measure. In addition, the Spanish corporate tax system allows alternative arrangements for accelerated depreciation. The AEB states that straight-line depreciation cannot be regarded as the (sole) reference for establishing the existence of an advantage because other methods of depreciation are generally allowed. Article 11 TRLIS and Articles 1-5 RIS provide for the possibility of applying degressive methods such as the declining balance (34) or the sum-of-the-year-digit (SYD) methods (35) as well as the possibility of depreciating an asset according to a specific plan agreed with the tax administration (36). The AEB cites as an example that the declining balance method would be applicable at a rate 2,5 times higher than the applicable straight-line depreciation rate, i.e. 25 %.

(63)

It is argued that early depreciation is just a method of accelerated depreciation which establishes that accelerated depreciation can start, under certain conditions, before the date when the asset is delivered to and operated by the final user. If it were not possible to deduct the amounts paid during the construction of the asset, this would in fact imply an anticipation of taxation. Early depreciation only restores neutrality and the correspondence between the financial flow and the tax treatment.

(64)

The AEB insists that the possibility of anticipating the start of the depreciation period is a general measure that is also provided for in Article 11(1)(d) TRLIS and in Article 5 RIS, which define the general rules applicable to depreciation. These provisions allow the tax administration to approve a specific depreciation plan presented and justified by the taxable person, including for assets under construction.

(65)

The sole aim of prior authorisation of early depreciation and the procedure followed by the tax administration is to check that the operation is real and that the objective criteria laid down in the legislation are met. In particular, it must be ensured in advance that: there is a lease agreement whose start date is prior to the commissioning or delivery of the asset; when the request is made it is indicated that payments for the recovery of the cost of the asset are deductible; the contract is for the acquisition of an asset requiring a long contractual/construction period in line with the operating conditions of the asset; the asset construction contract is signed, and that an indication is given of the specific contractual conditions governing use of the asset.

(66)

Besides the general conditions set out in Article 49 RIS, an additional condition is imposed by Article 48(4) TRLIS when the applicant is an EIG. The authorisation does not depend on the application of other measures or the submission of additional documents. Finally, the absence of any discretion in the procedure is illustrated by the fact that no application filed with the tax administration has ever been rejected. In that respect, the AEB considers that the Commission should investigate more closely the reasons why financing operations are not carried out. If, as maintained by the Commission on the basis of informal information, some shipping companies were unable to find a bank to organise the operation, this has more to do with the fact that the parties could not agree on certain elements of the operations, such as the price. The AEB formally denies that any of its members participated in any meeting or informal contact with the Spanish authorities. In fact, the situation is not the same as that described in the Commission Decision on the French GIE fiscaux (37), where the condition that the operation should represent a significant economic and social interest was found to be imprecise and left to the discretion of the tax authorities. On the contrary, the AEB denies that any of the conditions specified by Article 49 RIS is imprecise and open to interpretation

(67)

As a consequence, early depreciation — in the same way as accelerated depreciation — is generally applicable to all types of assets and all sectors. It is a general measure.

(68)

As it is a method of applying accelerated depreciation, if it considered to be aid, it should be regarded as existing aid.

(69)

According to the AEB, the transparency of EIGs is consistent with the logic of the Spanish tax system. This transparency allows several investors to make a joint investment which none of them would undertake on its own and yet to apply — because of this transparency and in respect of their share in the investment — the tax treatment that would have applied had they invested on their own. Hence there is no advantage linked to the application of EIG status. Moreover, this status does not entail any sectoral limitations. Any Spanish taxpayer can be a member of an EIG. It is therefore not selective.

(70)

As the Commission stated in Decision C(2011) 4494 final that it had authorised the Spanish TT system in 2002 as aid compatible with the Maritime Guidelines (38), the Spanish authorities and the third parties focus their comments on the scope of the 2002 approval and on the specific issues of whether financial EIGs (39) involved in STL operations should benefit from the TT scheme.

(71)

As to the question whether financial EIGs (39) involved in STL operations — which do not operate vessels but invest in them and charter them out as part of financial investments — should benefit from the TT system, Spain maintains that the companies operate vessels by chartering them out and have therefore been listed in Spanish shipping registers (as shipping companies) since the entry into force of Article 1 of Royal Decree 1027/1989 (40) of 28 July 1989, repeated in Article 9 of Law 27/1992 of 24 November 1992. As the Commission has authorised the application of the TT system to all companies listed in the Spanish shipping registers (41), this authorisation includes companies that own vessels and rent or lease them out to third parties. If that measure is regarded as State aid, it should therefore be considered existing aid.

(72)

Spain, PYMAR and some banks argue that Article 50(3) RIS only contains implementing measures intended to provide legal certainty. They maintain that, in accordance with the principles of the Spanish legal system, substantive elements of a tax measure must always be governed by law and that this provision — which is contained in a Royal Decree — does not introduce anything new but only clarifies the scope of Article 125(2) TRLIS. It does not depart from the law or create additional benefits. The non-taxation of capital gains already formed part of the scheme authorised by the Commission and therefore, if it constitutes aid, it should be regarded as existing aid.

(73)

Furthermore, Spain and the alleged recipients maintain that it is logical to consider the vessel to be ‘new’ since no one used it before the leaseholder, and the exercise of the option is agreed when the leasing contract is signed (42). The AEB states that normally an asset is considered to be new when it is acquired via the option of a leasing contract.

(74)

According to the complainants, a tax deduction implies a transfer of state resources in the form of a loss of tax revenue. The STL/tax measures are imputable to the State because all the measures are contained in Spanish law. Moreover, the STL relies on an authorisation that is granted by the tax authorities. Even if these authorisations relate to individual measures, it is clear that, in practice, the authorisations are granted to the overall STL transactions. This is borne out by the fact that the request for early depreciation filed with the tax administration describes in detail the construction and the distribution of the tax advantage between EIG or the investors and the shipping company as well as a notice from the shipyard setting out the expected social and economic benefits from the arrangement. There is no reason why these documents would systematically be provided if they were not in fact a precondition for approval.

(75)

The shipping companies, on the other hand, argue that the discount given by the shipyard or the EIG on the initial price is not imputable to the State because it results from private contractual relationships between the EIG and the shipping company involved in the operation.

(76)

[…] considers that the size of the advantages concerned (EUR 14 million in the example given in Decision C(2011) 4494 final) undoubtedly affects the recipients’ market position and therefore creates substantial distortions in markets characterised by a high level of competition. The scheme provides a great advantage to Spanish shipyards which can promote their ships at a price — lower than that of other European shipyards — which includes the benefits under the STL. […] refers to statistics from the Spanish Ministry for Industry showing that over time the Spanish shipyards have served more and more shipowners from abroad.

(77)

As for the shipping companies, […] considers that buying ships from Spanish shipyards at a much lower price enables them to save millions of euros on a substantial part of their fixed costs. As it is spread over the duration of the recovery of the cost of the ships, this advantage gives them a competitive edge over other shipping operators and therefore distorts competition for many years.

(78)

As already stated, shipowners argue that all shipping companies have access to the conditions offered by Spanish shipyards and can therefore benefit from any price rebates that Spanish shipyards might offer. They also argue that they have paid a fair market price and have not benefited from any economic advantage. Consequently, the acquisition of vessels from Spanish shipyards is unlikely to reduce their operating costs significantly or to strengthen their position in a durable manner, as stated by the Commission in Decision C(2011) 4494 final.

(79)

According to the AEB, EIGs cannot be recipients of aid. Because of their tax transparency, it is the investors who have to pay the tax resulting from the EIGs’ commercial activity. Hence EIGs cannot enjoy any economic advantage resulting from a tax reduction. In addition, any Spanish taxpayer can be an investor — a member — of an EIG.

(80)

On the other hand, a number of shipping companies consider that the EIGs are the only possible recipients of aid. Shipowners cannot be recipients of aid because they are not Spanish taxpayers. Moreover, they argue that the Commission wrongly assumed — without giving any explanation — that the tax benefits would be transferred from the EIG to the shipping company through a price rebate. In fact, the price is fixed as a result of a commercial decision taken by the private owner of an asset.

(81)

Shipowners argue that shipping companies from all over the world generally acquire vessels from shipyards from different countries, including, if they so wish, Spanish shipyards. All shipping companies can therefore benefit from any price rebates that Spanish shipyards are able to offer.

(82)

Several shipowners argue that if the STL constitutes State aid, they are not the recipients of this aid. Two reasons are given: first, the way the STL structure functions shows that there is coordination between the EIG and the shipyard, which constitutes a single centre of interest and fixes the sales price; second, companies operating tugboats and salvage vessels give examples of offers received from shipyards outside Spain to build similar tugs. Those offers are in the same price range or even cheaper than those of the Spanish shipyards eventually selected. They argue that consequently they have paid a fair market price and have not benefited from any economic advantage within the meaning of Article 107(1) TFEU. If the STL were to offer an economic advantage, the recipients would be the shipyards involved in STL operations and not the shipping companies.

(83)

Holland Shipbuilding considers that the recipients of aid are the EIGs and their investors, as well as the shipping companies, but also the Spanish shipyards because there is a substantial difference between the price paid by the shipowner and the price received by the shipyard, which is above the market price. According to a national shipbuilding association, the scheme was designed to benefit the shipyards. It would be incorrect to conclude that STL is of benefit to the shipping companies. The reduction in the building price does not necessarily imply an advantage for the purchaser of the ship. Moreover, Spanish shipyards can only offer this advantage to buyers that use the STL. The STL constitutes unlawful aid to shipbuilding that is damaging to national shipbuilders that are in direct competition with Spanish ones.

(84)

PYMAR considers that the Commission did not give sufficient grounds in Decision C(2011) 4494 final as to why it identifies shipyards as potential recipients of State aid. It also points out that in the decisions in the GIE Fiscaux, Brittany Ferries, Air Caraïbes or Le Levant (43) cases concerning similar tax schemes, the Commission did not identify the producer of the asset as a recipient of State aid.

(85)

As mentioned in Section 4.3 above, Spain and certain third parties consider that there are only two measures involved: first, the provisions of Article 115 TRLIS concerning the deduction of the cost of an asset acquired via a financial leasing contract. Spain adopted these provisions before it joined the EU. Therefore, if this measure constitutes aid, it is existing aid as stated by the Commission in Decision C(2011) 4494 final, and Article 115(11) TRLIS, which allows the administration to set the starting point for the deduction, is only a means of implementing Article 115. Second, the TT system enshrined in Articles 124 to 128 TRLIS was approved by the Commission in 2002 and is therefore also existing aid. The implementing provisions — in particular Article 50(3) RIS — do not alter the rules enshrined in the law and are therefore covered by the Commission authorisation.

(86)

The Spanish authorities and the alleged recipients argue that the aid is compatible on the basis of the TT system approved in 2002 because it covers ‘maritime companies registered under Spanish law (44), whose activity includes the operation of owned and chartered ships’. As Article 50(3) RIS only implements the TT system, it is also covered by the 2002 Decision.

(87)

The third parties also argue that any aid would be compatible with the Maritime Guidelines, which also include the operation of owned and chartered ships and this aid would remain within the aid ceiling imposed by these Guidelines.

(88)

The Asociación de Ingenieros Navales y Oceánicos de España (Spanish Association of Naval Architects and Marine Engineers) considers that the compatibility of any aid should be analysed in the global competitive context rather than focus on the internal market since shipyards in non-EU countries receive support that is not subject to competition rules, as is the case in the EU.

(89)

By contrast, […] considers that the scheme cannot be regarded as compatible aid at all, not even — as stated in Decision C(2011) 4494 final — under the Maritime Guidelines. Indeed, it considers, first, that Spain will not be able to prove that all ships built were eligible to benefit from these Guidelines and, second, that the aid can only reduce to zero the amount of tax due by the beneficiary in the country that adopts the scheme. Therefore, non-Spanish shipowners would not benefit from the scheme and the tax paid by Spanish shipowners is likely to be limited since they benefit from the TT system and a reduction in social charges.

(90)

Both the Spanish authorities and the potential recipients maintain that recovery should be ruled out because that would breach fundamental principles of EU law (45) such as equal treatment, the protection of legitimate expectations or legal certainty.

(91)

PYMAR argues that similar fiscal measures were investigated in two other cases (Brittany Ferries (46), and GIE Fiscaux) where no recovery was ordered. If the Commission concluded that aid existed, this aid should be deemed compatible up to the limit set in Chapter 11 of the Maritime Guidelines and, for the amount in excess of that limit, the protection of legal certainty should, as in the French case, prevent the Commission from requiring the recovery. […] argues that because no aid was recovered from the French operators, recovering aid from Spanish operators in a very similar case would put the latter at a competitive disadvantage and breach the principle of equal treatment.

(92)

Spain and PYMAR invoke a number of decisions where the Commission has already decided to refrain from recovery because of public statements by the Commission or one of its members. Reference is made to the decisions on Belgian coordination centres, Luxembourg 1929 holding companies and other coordination centres and intragroup activities of multinational companies (47), Spanish Goodwill (48), an Italian case of aid to large firms in difficulty (49) and two fisheries cases (50) (Shetland and Orkney Islands).

(93)

According to Spain (51) and certain third parties involved in STL operations, the following elements led the parties to these operations to believe that the tax measures used in them did not constitute State aid:

(94)

In recital 193 of that Decision, the Commission stated that: ‘… with regard to economic interest groupings and the tax advantages they may confer, the Commission considers that they constitute a general measure, given that they are common in France, can be set up in all sectors of economic activity and come under common law.’

(95)

The Decision was published in the Official Journal on 15 January 2002. In the 2006 Decision on the French GIE Fiscaux, the Commission considered that: ‘While it is true that the scheme at issue in that case was that in force before 1998, it must nevertheless be observed that that fact was not made clear in the grounds for the Decision and that that circumstance may have helped to mislead recipients under the scheme here at issue.’

(96)

Spain (58) and some third parties argued that this statement had either created a situation of legal uncertainty as to the lawfulness of the STL — which is very similar in its construction and effects — or had given rise to legitimate expectations that the STL did not constitute State aid.

(97)

According to PYMAR, the Commission became aware of the existence of the STL system when its constituent measures (discretionary application of early depreciation of leased assets and the TT system) were published as part of the same draft law in the Official Gazette of the Spanish Parliament on 10 October 2001. Following this, shipyards started to include the benefits of these measures in their bids for new shipbuilding projects, without awaiting the entry into force of the measures, in order to move forward in the negotiation and implementation of the first STL structures.

(98)

PYMAR refers to a letter sent by the Commission on 21 December 2001 following a complaint about several state measures that allegedly reduced the cost of ships bought from Spanish shipyards. In that letter, the Commission notably requested information about a tax leasing system:

‘It has come to the attention of the Commission that a number of measures seem to exist that reduce the cost of buying ships from Spanish shipyards. In particular the Commission has been provided information that the following measures are available:

…

(99)

According to PYMAR, this letter indicates that the Commission had information and was aware of the existence of the tax lease system and that it has investigated the matter in 2001 already without taking any action, which created the legitimate expectation that the Spanish measure did not constitute aid.

(100)

On 9 September 2002, the Dutch authorities notified a ‘matching aid’ that they intended to award Dutch shipyards with a view to matching aid allegedly offered by Spain (59). At the end of a formal investigation (60), the Commission concluded in its final Decision (61) that ‘the Spanish authorities hav[ing] clearly denied that the aid would ever be available’ it did not have ‘sufficient proof of the alleged Spanish aid’ (62) and declared the notified aid incompatible with the internal market.

(101)

According to PYMAR, because the STL was in force in 2002, before the Netherlands notified the aid, the 2004 Commission decision would have created the legitimate expectation that the STL system did not constitute aid.

(102)

According to PYMAR, the French scheme GIE Fiscaux is very similar to the STL system. As a result, the 2006 Decision in the French case gave rise to legitimate expectations on the part of operators that: (1) the STL system would be considered compatible with the internal market within the limits of Chapter 11 of the Maritime Guidelines and (2) the recovery of the State aid exceeding the ceilings of Chapter 11 of the Guidelines would not be required, given the procedural similarities of both cases.

(103)

In addition, PYMAR invokes a number of Commission decisions where the similarity of a measure with a measure previously approved by the Commission was a factor that justified the legitimate expectations of operators. In particular, PYMAR recalls that no recovery was ordered in cases (63) such as Foreign Income (Ireland), International Financing Activities (the Netherlands), Coordination Centres and Finance Companies (Luxembourg), Coordination Centres in Vizcaya (Spain), Control and Coordination Centres (Germany), Central Corporate Treasuries and Headquarters and Logistics Centres (France), Tax Ruling for US Foreign Sales Corporations (Belgium) and Gibraltar Qualifying Companies (UK), because those schemes were very similar to the Belgian Coordination Centres schemes which had been previously approved by the Commission.

(104)

In response to a letter from the Norwegian authorities complaining about alleged discrimination against Norwegian shipyards in connection with the Spanish tax lease system, Commissioner Kroes replied that DG Competition: ‘[had] already investigated the matter’ and that at its request, Spain had issued a public statement in the form of an answer of the tax administration to a question from a taxpayer (64) — a tax ruling — confirming that the measure was not restricted to Spanish shipyards and could also be used for the acquisition of ships produced in other Member States. The letter concluded that, in view of that clarification, no further action was considered necessary.

(105)

According to PYMAR, on 2 April 2009 a Norwegian shipowner shared the content of Commissioner Kroes’s letter with a Spanish shipyard with which it was involved in STL operations. PYMAR also submitted a letter of 13 September 2012 from Gerencia del Sector de la Construcción Naval (65) (GSN) testifying that, back in 2009, it knew about the content of Commissioner Kroes’s letter and had shared it with entities participating in STL operations and with PYMAR in the course of their regular meetings.

(106)

According to PYMAR, nine years elapsed between the time the Commission became aware of the scheme in December 2001/the start of the scheme in 2002 (five years from the first complaints received by the Commission in 2006) and the opening of the proceedings in June 2011. The time elapsed without action from the Commission corroborated the belief that there were not enough elements to proceed.

(107)

According to PYMAR and other third parties, this is the first time that the Commission has considered that the joint application of several measures constitutes State aid — something which normally prudent operators could not have foreseen.

(108)

PYMAR argues that according to Article 13 of the Commission Notice on business taxation, measures of a purely technical nature such as depreciation rules do not constitute State aid. On that basis, operators had legitimately considered that the early depreciation measure did not constitute State aid.

(109)

From the moment the Commission became aware of the existence of the STL, its actions and also the time elapsed have created legitimate expectations that there was no aid and consequently that the aid granted for operations carried out previously would not be recovered. Hence the Commission should refrain from ordering recovery of the aid for all the operations.

(110)

Similarly, the letter from Commissioner Kroes in 2009 confirms that the scheme had been analysed by the Commission. All parties involved in tax lease operations (shipping companies, EIGs, banks and intermediaries, etc.) could have legitimate expectations that the Commission would have discovered any aid in the system and that, because no further investigations were planned, no aid was involved.

(111)

PYMAR also refers to decisions in which the Commission acknowledged that actions by EU institutions (Court of Justice, Commission, etc.) could generate legitimate expectations that aid awarded in the past would not be recovered, which would prevent the Commission from ordering recovery including when the aid was granted prior to the action that gave rise to legitimate expectations. They refer to decisions in the Spanish goodwill case, the Belgian coordination centres case, an Austrian energy tax rebate case and an Italian case of aid to large firms in difficulty (66).

(112)

The Spanish authorities and PYMAR state that any aid identified by the Commission in favour of shipping companies or EIGs and investors would in any case affect the shipyards, which would receive claims to reimburse the EIGs or their investors or investing companies by virtue of the contractual relationships between the different participants in the STL operations. Indeed, according to PYMAR, some clauses in the contracts require the shipyards to compensate the investors and shipping companies, in particular, in the event of a change to the legislation — including tax legislation — affecting the operation.

(113)

The Commission considers that the procedure followed has neither breached Spain’s rights of defence nor any third party’s right to be heard. On the contrary, the decision to open formal proceedings is the initial formal step that the Commission must take pursuant to Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (67) (hereinafter ‘Regulation (EC) No 659/1999’) if, after a preliminary investigation, it has doubts about the compatibility of a State aid measure with the internal market (Articles 13 and Article 4(4) of Regulation (EC) No 659/1999). The purpose of the decision to open proceedings is precisely to summarise the relevant issues of fact and law, make a preliminary assessment as to the aid character of the measure, set out the doubts as to its compatibility with the internal market and call upon the Member State concerned and other interested parties to submit comments (Article 6 of Regulation (EC) No 659/1999).

(114)

Moreover, the Commission did not open the formal investigation procedure in respect of the accelerated depreciation of leased assets (Article 115(6) TRLIS) since it has indicated that if the measure constituted State aid, it could in any event be regarded as existing aid. It did not raise doubts about the TT system, at least to the extent that it had been notified and authorised by the Commission (Articles 124 to 128 TRLIS) because this measure was also regarded as existing aid. These two measure are only mentioned and described in Decision C(2011) 4494 final because they are important elements of the STL and are linked to the measures subject to the formal investigation (Articles 115(11) and 48(4) TRLIS and Article 49 RIS, as well as Article 50(3) RIS and the application of the TT system to non-transport activities).

(115)

The Commission considers that Articles 115(11) and 48(4) TRLIS and Article 49 RIS, as well as Article 50(3) RIS and the application of the TT system to non-transport activities can be separated from the other measures mentioned in the previous recital (i.e. Article 115(6) TRLIS and Articles 124 to 128 TRLIS) and do not constitute existing aid pursuant to Article 1(b) of Regulation (EC) No 659/1999, since those measures were introduced in 2002 and 2003, after Spain’s accession to the EU, and put into effect without prior authorisation by the Commission. Therefore, in respect of those measures, the Commission has rightly followed the procedure applicable to unlawful aid (Articles 1(f), 13 and 4(4) of Regulation (EC) No 659/1999).

(116)

The fact that the STL system is composed of various measures that are not all enshrined in the Spanish tax legislation is not sufficient to prevent the Commission from describing and assessing it as a system. Indeed, as explained in Decision C(2011) 4494 final, the Commission considers that the different tax measures used in the STL operations were linked together de jure or de facto. De jure, the discretionary application of early depreciation of leased assets (Article 115(11) TRLIS) corresponds to an early application of the accelerated depreciation of leased assets (Article 115(6) TRLIS). Similarly, Article 50(3) RIS establishes an exception to a special procedure applicable in the context of the TT system. De jure, Article 50(3) RIS only concerns ves0sels eligible for the TT system and leasing contracts authorised by the tax administration. De facto, leasing contracts were only regarded as authorised by the tax administration in the context of authorisations granted for early depreciation of leased assets. De jure, early depreciation can be envisaged for a wide range of assets possibly acquired via a leasing contract. However, the conditions for early depreciation are subject to interpretation and were de facto only considered to be met — and authorisations were only delivered — with respect to vessels eligible for the TT system.

(117)

In addition, the Commission notes that two of the three main measures involved in the STL (discretionary application of early depreciation and rules on eligibility for the TT system) entered into force on the same date (1 January 2002) under the same law.

(118)

The Commission also notes that, when arguing about legitimate expectations and equal treatment, the same third parties that challenge the Commission’s global approach present the STL system as being very similar to the French GIE Fiscaux scheme. The fact that all the features of the French measure were included in one legal provision necessarily implied a global assessment. In that respect, the fact that the different elements of the STL are spread among different legal provisions that are de facto linked together would not — as such — warrant a different approach.

(119)

For those reasons, the Commission considers that it is necessary to describe the Spanish Tax Lease as a system of connected tax measures and to assess their effects in their reciprocal context, taking into account, in particular, the de facto relationships introduced — or approved — by the State.

(120)

In any case, the Commission does not rely exclusively on a global approach. In parallel to a global approach, the Commission also analysed the individual measures that make up the STL. The Commission considers that the two approaches are complementary and lead to consistent conclusions. Individual assessment is necessary to determine which part of the economic advantages generated by the STL system results from general measures and which from selective measures. Individual assessment also allows the Commission to determine, where necessary, which part of the aid is compatible with the internal market and which part should be recovered.

(121)

This dual approach, which was already followed in Decision C(2011) 4494 final, enables the Commission to define a reference system for each of the individual measures and for the STL system as a whole, in order to identify selective advantages that constitute State aid. For every STL operation, the counterfactual situation against which the presence of aid will be assessed is the operation itself, with the same contractual provisions but carried out without the measures identified as State aid. In this respect, an alternative operation with actual different arrangements — contractual and financial — would not constitute a proper counterfactual situation.

(122)

Economic operators are free to structure their asset financing operations as they wish and use for that purpose the general tax measures which they consider the most suitable. However, inasmuch as these operations entail the application of selective tax measures, which are subject to State aid control, the undertakings involved in these transactions are potential recipients of State aid. On the one hand, the fact that several sectors or categories of undertakings are identified as potential recipients is not an indication that the STL system is a general measure (68). On the other hand, the fact that the system is used to finance the acquisition, bareboat chartering and resale of sea-going vessels can be seen as a clear indication that the measure is selective from a sectoral point of view.

(123)

According to Article 107(1) TFEU, ‘any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the internal market’.

(124)

State aid rules apply only to aid granted to undertakings involved in economic activities. Furthermore, the criteria laid down in Article 107(1) TFEU are cumulative. Therefore, the measures under assessment constitute State aid within the meaning of the Treaty if all the above-mentioned conditions are fulfilled. Basically, the financial support should:

(125)

The Commission has carried out its assessment at two different levels:

(126)

The Commission considers that all parties involved in STL operations are undertakings within the meaning of Article 107(1) TFEU — and this is not contested by Spain (69) or any third-party — since their activities consist in offering goods and services in a market (70). More precisely, shipyards offer newly built vessels or construction, repair and renovation services; leasing companies offer financing facilities; EIGs charter out and sell vessels; investors offer goods and services on a wide range of markets, except if they are individuals not exercising any economic activity, in which case they are not covered by this Decision; shipping companies offer maritime transport services; organising banks offer intermediation and financing services and other intermediaries provide intermediation or consulting services.

(127)

According to settled case-law: ‘Article 107(1) of the Treaty requires it to be determined whether, under a particular statutory scheme, a State measure is such as to favour ‘certain undertakings or the production of certain goods’ in comparison with others which, in the light of the objective pursued by the scheme in question, are in a comparable legal and factual situation. If it is, the measure concerned fulfils the condition of selectivity.’ (71)

(128)

In Decision C(2011) 4494 final, the Commission said that, if the measure constituted aid, it would be existing aid and it did not conduct an assessment. As a result of the formal investigation, the Commission has now come to the conclusion that this measure, taken in isolation, does not constitute State aid because it does not favour certain undertakings or the production of certain goods. The Commission notes that the measure is applicable to all companies which are subject to income tax in Spain without any limitation as to their sector of activity, place of establishment, size, legal status or location of the assets. It also applies without exception to all goods that are subject to depreciation.

(129)

Moreover, the limitation to leased assets does not constitute an element of selectivity as the acquisition of any assets can be financed through financial leasing contracts which are generally accessible to companies of all sectors and sizes. There is no indication that the recipients of the measure are de facto concentrated in certain sectors or types of production. The statistics provided by Spain concerning the use of Article 115 TRLIS by Spanish taxpayers (see graphs below) confirm that financial leasing is used by companies exhibiting a wide range of taxable revenues (45 % of the declared users of Article 115 earn less than EUR 1 million and 70 % less than EUR 3 million) (see left-hand chart). The absolute amount of the tax advantage that can result from the deduction of an extra expense (72) pursuant to Article 115 TRLIS also varies according to the taxpayer’s revenue (see right-hand chart).

Source: Ministry for Economic Affairs and Finance

(130)

The Spanish authorities have also confirmed that leasing contracts and Article 115 TRLIS can be used with respect to assets built (or originating) in other Member States. Finally, the Commission notes that the conditions of application of Article 115(6) TRLIS are clear, objective and neutral and that no prior authorisation is necessary for it to apply. As a consequence, the tax administration does not have the power to authorise or reject at its own discretion the application of that measure (73).

(131)

The Commission therefore concludes that the accelerated depreciation of leased assets (Article 115(6) TRLIS) as such does not confer a selective advantage on the EIGs in STL operations.

(132)

The rules on depreciation in Spanish tax legislation (Article 11 TRLIS) generally provide that the cost of an asset should be spread over its economic life — hence from the moment it is used for an economic activity. According to Article 115(6) TRLIS, accelerated depreciation of leased assets should take account of the date on which the asset became operational. Since it allows accelerated depreciation to begin before the asset starts being used, Article 115(11) TRLIS confers an economic advantage.

(133)

This possibility is an exception to the general rule set out in Article 115(6) and is subject to discretionary authorisation by the Spanish authorities; this measure is therefore at first sight selective. Contrary to what Spain and some third parties allege, the criteria for granting the authorisation are not clear and objective, and even if they were clear and objective this would not be sufficient to rule out their selective nature (74). The Commission notes that the criteria set out in Article 115(11) TRLIS are vague and require interpretation from the tax administration which has not published any administrative rules or explanations in this respect. The discretionary application of early depreciation on the basis of vague criteria introduces selectivity into the STL system, even if the discretionary powers are not exercised in an arbitrary manner (75). In addition, the Commission notes that Spain did not convincingly explain why all the conditions imposed by Article 48(4) TRLIS and Article 49 RIS are necessary to avoid abuses. For example, the specific characteristics of the economic use of the asset (76) must be demonstrated, as well as the absence of effect on the taxable amount arising from the use of the asset or transfer of ownership (77). No justification was presented for these limitations, which introduce further elements of selectivity. Nor did Spain demonstrate why a prior authorisation is necessary. Ensuring the reality of a leasing operation, for instance, appears as important for allowing the normal deduction of the leasing/depreciation costs of an asset or for applying accelerated depreciation as it is for the early application of this depreciation. However, the first measures are not subject to prior authorisation and, as is the case for those measures, an ex-post verification of the clear and objective criteria applicable to the early depreciation of leased assets would appear to suffice.

(134)

In Decision C(2011) 4494 final, according to the Commission the Spanish authorities had confirmed at a meeting that, based on the authorisations issued, the conditions of Article 115(11) TRLIS were only deemed to be met in the case of acquisitions of vessels that had switched from the normal corporate taxation regime to the TT system (78) and the subsequent transfer of ownership of the vessel to the shipping company through the exercise of an option in the context of a bareboat charter. Spain has denied (79) having made such a statement but acknowledged that there were difficulties of interpretation (80). The Commission notes that no evidence was provided establishing that authorisations for applying early depreciation have been granted in other circumstances (81).

(135)

On the basis of the examples provided by the Spanish authorities, it appears that the requests for early depreciation filed by EIGs with the tax administration describe in detail the whole STL organisation and provide all the relevant contracts (in particular, shipbuilding contract, leasing contract, bareboat charter, option contracts, debt assumption and release agreement). According to Spain, these elements are necessary to check compliance with the conditions imposed by Articles 115(11) and Article 48(4) TRLIS and Article 49 RIS.

(136)

However, the Commission notes that the procedure set out in the implementing regulations (82) confers important discretionary powers on the tax administration to interpret the legal requirements and possibly impose additional conditions. In particular, the administration is allowed to require any additional information they may deem relevant for the assessment (83). In this respect, the Commission also notes that in some of the examples provided, the requests filed by the applicants also featured additional annexes which are not necessary to demonstrate compliance with the conditions imposed by Articles 115(11) and 48(4) TRLIS and Article 49 RIS: (1) a detailed calculation of the overall tax advantages and how they will be shared between the shipping company, on the one hand, and the EIG or its investors on the other hand, and (2) a statement by the shipyard, detailing the economic and social benefits expected from the shipbuilding contract. According to some complainants, these documents are required by the tax administration in the context of the authorisation process. According to Spain, these elements were provided by the applicants (EIGs) on their own initiative. These documents indicate, in particular, that the importance of a shipbuilding contract for the Spanish economy is taken into account, as well as the overall tax advantage generated by the STL operation.

(137)

The Commission concludes that the compulsory prior authorisation procedure, the necessary interpretation of the vague conditions of Articles 115(11) and 48(4) TRLIS and Article 49 RIS, and the possibility for the tax administration to request any additional document or information are clear evidence that the tax administration enjoys wide discretionary powers in the exercise of its task of authorising STL operations.

(138)

As mentioned in the Commission Notice on the application of the State aid rules to measures relating to direct business taxation (hereinafter ‘the Notice on fiscal aid’) (84), the Court of Justice acknowledges that treating economic agents on a discretionary basis may mean that the individual application of a general measure takes on the features of a selective measure, in particular where exercise of the discretionary power goes beyond the simple management of tax revenue by reference to objective criteria (85) (86).

(139)

The Commission therefore considers that the discretionary application of early depreciation of leased assets by application of Articles 115(11) and Article 48(4) TRLIS and Article 49 RIS confers a selective advantage on the EIGs involved in STL operations and on their investors.

(140)

The Commission considers that the tax transparent status of EIGs enshrined in Articles 48 and 49 TRLIS merely enables different operators to join and finance any investment or carry out any economic activity. As a consequence, that measure does not confer any selective advantage on the EIGs or their members.

(141)

As explained in Section 2.2.4 above, the TT system constitutes an existing State aid scheme, approved by Commission Decision C(2002)582 final of 27 February 2002. It includes the rules under Article 125(2) TRLIS concerning the treatment of hidden tax liabilities and capital gains in the context of a transfer to the TT system of used or second-hand assets previously subject to the general tax system.

(142)

Indeed, as explained in recital 17 above, under normal circumstances — i.e. when a company stays within the general corporate tax system rather than switching to the TT system — the tax advantage resulting from early or accelerated depreciation of assets in the first years (increasing hidden tax liabilities) is offset to a large extent in the subsequent years (decreasing hidden tax liabilities) or upon sale or dismantling of the asset (taxation of capital gain). Over the whole period, this process results in the deferral of the payment of certain amounts of tax. Because the tax paid under the TT system does not depend on the difference between revenue and expenditure, a switch to the TT system in the middle of the period implies that hidden tax liabilities are not settled.

(143)

Compared with what would happen in the context of the general tax system, the deferral under the TT system of the settlement of hidden tax liabilities as permitted by Article 125(2) TRLIS confers an additional selective economic advantage on the companies that switch to the TT system, as against those that stay within the general tax system.

(144)

As explained below, in Section 5.4., the TT system as approved by the Commission does not extend to the tax treatment of revenues obtained from bareboat chartering, which therefore constitutes not existing, but new aid.

(145)

Compared with what was authorised as part of the notified TT scheme, Article 50(3) RIS provides a further advantage: by establishing an exception to the normal application of Article 125(2) TRLIS, certain sea-going vessels that would normally be regarded as used or second-hand are deemed to be new on transfer to the TT system. Consequently, the settlement of hidden tax liabilities — normally deferred until sale or dismantling of the asset pursuant to Article 125(2) TRLIS — is definitely cancelled. This cancellation constitutes an economic advantage.

(146)

The economic advantage conferred by Article 50(3) RIS is selective because it is not available to all assets. It is not even available to all vessels subject to the TT scheme and to Article 125(2) TRLIS. In fact, this advantage is only available on condition that the vessel is acquired through a financial leasing contract previously authorised by the tax administration. As already mentioned, the Spanish authorities have confirmed that the tax administration only considered this condition actually to be fulfilled if a financial leasing contract had been authorised in the context of an application for early depreciation pursuant to Article 115(11) TRLIS. Neither Spain nor any third party has referred to other circumstances that would allow a leasing contract to be previously authorised by the tax administration. As mentioned in Section 5.3.2.2 above, these authorisations were granted in the context of substantial discretionary powers exercised by the tax administration and in practice only in relation to newly built sea-going vessels.

(147)

Contrary to the argument put forward by Spain and certain third parties, Article 50(3) RIS does not merely provide a clarification to the special procedure notified, or to the concept of ‘used vessel’. By considering that a leased vessel is still new on the date that the call option is exercised by the lessee, provided that the leasing contract was previously approved by the tax administration, it departs from the special procedure (87) enshrined in Article 125(2) TRLIS. This selectively introduces an additional advantage by preventing the taxation of the subsequent capital gain.

(148)

The Commission considers that the award of this additional selective advantage — be it by reference to the general tax scheme or even by reference to the normal application of the alternative TT system and Article 125(2) TRLIS as authorised by the Commission — cannot be justified by the nature and general scheme of the Spanish tax system.

(149)

Indeed, the Commission has authorised Article 125(2) TRLIS as a special procedure that was supposed to prevent abuse of Article 125(1), i.e. to prevent operators from transferring used and over-depreciated vessels to the TT system for the sole purpose of selling them with a substantial capital gain that would be exempted under the TT scheme. The Commission notes in that respect that the STL operations feature EIGs which lease — then briefly own — one single vessel which they do not operate themselves and switch to the TT scheme for the very limited period of time necessary to exercise the option of the leasing contract and transfer the ownership of their only vessel to the shipping company. These operations do not appear to be in line with the objectives of the TT system as envisaged in the Maritime Guidelines.

(150)

As a consequence, the Commission does not agree that it is logical to consider a vessel to be ‘new’ on the date on which the option is exercised because no one has used it before the leaseholder, or because the exercise of the option had already been agreed when the leasing contract was signed.

(151)

As for the first part of this argument, the Commission notes that the special procedure also applies to vessels transferred by one operator from the normal tax system to the TT system, i.e. without any change in ownership and without any third party using it.

(152)

As for the second part, the fact that the option is already agreed has nothing to do with determining whether the vessel is new. The Commission did not receive any explanation as to why such a vessel should be regarded as new — irrespective of who is the owner — on the day the option is exercised. Nor did it receive any convincing explanation as to why this hypothesis would only be reasonable if the leasing contract was previously approved by the tax administration.

(153)

In that respect, the Commission notes that the capital gain would not be tax exempt if Article 50(3) RIS only clarified that leased vessels are considered to be new on the day the leasing contract is signed, without taking into consideration the date on which the option is exercised. In that case, the EIG should be regarded as the owner of the vessel prior to its transfer to the TT system, the vessel would be regarded as used or second-hand on entry to the TT system and Article 125(2) TRLIS would apply, leading to the deferred settlement of the hidden tax liabilities or the taxation of the capital gain when the vessel is sold or dismantled.

(154)

The Commission therefore considers that Article 50(3) RIS confers a selective advantage on undertakings that acquire vessels through financial leasing contracts previously authorised by the tax administration and, in particular, on the EIGs or their investors involved in STL operations.

(155)

The amount of the economic advantage resulting from the STL as a whole corresponds to the advantage that the EIG would not have achieved in the same financing operation by the sole application of general measures. In practice, this advantage corresponds to the sum of the advantages reaped by the EIG by applying the above-mentioned selective measures, namely:

(156)

Looking at the STL as a whole, the advantage is selective because it was subject to the discretionary powers conferred on the tax administration by the compulsory prior authorisation procedure and by the imprecise wording of the conditions applicable to early depreciation. Since other measures applicable only to maritime transport activities eligible under the Maritime Guidelines — in particular Article 50(3) TRLIS — are dependent on that prior authorisation, the whole STL system is selective. As a result, the tax administration would only authorise STL operations to finance sea-going vessels (sectoral selectivity). As confirmed by the statistics provided by Spain, all the 273 STL operations organised until June 2010 concern sea-going vessels.

(157)

In that respect, the fact that all shipping companies, including companies established in other Member States, potentially have access to STL financing operations does not alter the conclusion that the scheme favours certain activities, namely the acquisition of sea-going vessels through leasing contracts, in particular with a view to their bareboat chartering and subsequent resale.

(158)

European shipyards complained on several occasions that they did not have access to Spanish banks’ financing for STL.

(159)

In its Decision to open the formal investigation procedure the Commission observed that all but one of the vessels admitted to STL were built in Spanish shipyards. The Commission expressed doubts (88) that such an outcome could reasonably be explained in the context of operations resulting only from the free choice of economic operators in a free and competitive market.

(160)

However, in the absence of any evidence that applications related to the acquisition of non-Spanish vessels were rejected, the Commission cannot establish that STL was de facto limited to the acquisition of Spanish vessels. In addition, the Commission notes that by a binding notice in response to a question by a prospective investor, dated 1 December 2008, the Spanish tax administration expressly confirmed that STL applies to ships built in other Member States of the EU (89). Under these circumstances, the Commission concludes that the STL entails no further element of selectivity to the benefit of Spanish shipyards and no discrimination based on the place of establishment of the shipyard.

(161)

The Commission considers that the advantage accrues to the EIG and, by transparency, to its investors. Indeed, the EIG is the legal entity that applies all the tax measures and, where applicable, files requests for authorisations with the tax administration. For instance, it is not disputed that requests for the application of early depreciation or TT were filed on behalf of the EIG. From a tax perspective, the EIG is a tax-transparent entity and its taxable revenues or deductible expenses are automatically transferred to the investors.

(162)

In an STL operation, in economic terms, a substantial part of the tax advantage collected by the EIG is transferred to the shipping company through a price rebate. The annexes attached to certain files when EIGs request prior authorisation for early depreciation (see recital 168 below) confirm that the operators involved in STL operations consider that the tax benefits resulting from the operation are shared between EIGs or their investors and the shipping companies. However, the question of the imputability to the State of this advantage will be discussed in the next section.

(163)

Whereas other participants in STL transactions such as shipyards, leasing companies and other intermediaries benefit from an indirect effect of that advantage, the Commission considers that the advantage initially collected by the EIG and its investors is not transferred to them.

(164)

The selective advantages for the EIGs and their members identified in measures 2, 4 and 5 above (see Sections 5.3.2.2, 5.3.2.4 and 5.3.2.5) result from the application of tax law provisions.

(165)

For each of the STL transactions, the use of state resources results in interest foregone on the tax deferral resulting from the early depreciation of leased assets, tax foregone in the absence of settlement of the hidden tax liabilities when the EIG switches from the normal corporate tax system to the TT schemes, and tax foregone in the absence of taxation of the capital gain made when the ownership of the vessel is transferred to the shipping company. The STL system as a whole involves the definitive loss of tax revenue equivalent to the consumption of state resources in the form of fiscal expenditures and interest foregone.

(166)

In the context of STL operations, the State initially transfers its resources to the EIG by financing the selective advantages. By way of tax transparency, the EIG then transfers the state resources to its investors.

(167)

The measures at issue derive from the application of Spanish tax law and from tax authorisations granted by the Spanish tax administration for the application of both the early depreciation and the TT scheme. These authorisations were granted for the application of individual measures such as the early (accelerated) depreciation of the vessel leased by each EIG or the switch of the EIG to the TT. Moreover, based on the examples provided by the Spanish authorities, the authorisation process was indispensable for the financing operation to go through.

(168)

According to the complainants, the tax administration would review and intervene in the share-out of the tax gain between the shipping company, on the one hand, and the EIG and its investors, on the other. Based on the examples provided by the Spanish authorities, it appears that, indeed, requests submitted to the tax administration for the authorisation of early depreciation generally include a calculation of the overall tax advantage generated by the STL structure and how this tax advantage is shared between the shipping company and the investors in the EIG, or, in any event, contain the necessary elements for doing this calculation.

(169)

However, all the economic consequences of granting the tax advantage to the EIGs result from a combination of legal transactions between private entities. The applicable rules do not oblige the EIGs to transfer part of the tax advantage to the shipping companies and, even less so, to the shipyards or to the intermediaries. It is true that the tax administration enjoys wide discretion and, in that context, it assesses the economic impact of the overall transaction, but this is not enough to establish that it is the Spanish authorities that decide on the transfer of part of the advantage to the shipping companies or the amount of this transfer. This situation is different from that examined in the Air Caraïbes or in the French GIE Fiscaux decisions, where there was a legal obligation for the investors to transfer at least 60 % or two thirds of the advantage to the users and the French authorities verified that each transaction complied with that requirement.

(170)

Hence the selective advantages were granted through state resources. They are clearly imputable to the Spanish State since they are of benefit to the EIGs and their investors. However, this is not the case with the advantages enjoyed by the shipping companies and a fortiori the indirect advantages flowing to the shipyards and the intermediaries.

(171)

Finally, this advantage threatens to distort competition and to affect trade between Member States. When aid granted by a Member State strengthens the position of an undertaking compared with other undertakings competing in intra-EU trade, the latter must be regarded as affected by that aid (90). It is sufficient that the recipient of the aid competes with other undertakings on markets open to competition (91) and to trade between Member States.

(172)

In the case at hand, the investors, i.e. the members of the EIGs, are active in different sectors of the economy, in particular in sectors open to intra-EU trade. In addition, via the operations benefiting from STL they are active through the EIGs in the markets for bareboat chartering and the acquisition and sale of sea-going-vessels, which are open to intra-EU trade. The advantages flowing from the STL strengthen their position in their respective markets, thereby distorting or threatening to distort competition.

(173)

The economic advantage received by the EIGs and their investors benefiting from the measures under scrutiny is therefore liable to affect trade between the Member States and distort competition in the internal market.

(174)

Article 1(b) of Regulation (EC) No 659/1999 (92) sets out different situations where aid is regarded as existing aid. According to submissions received in the case at issue, existing aid would be (i) aid which existed prior to the entry into force of the Treaty in Spain or (ii) aid previously approved by the Commission.

(175)

Among the measures qualifying as State aid (93), the Commission considers that only the legal provisions of the TT system (Articles 124 to 128 TRLIS, Measure 4) constitute an existing State aid scheme because it was approved by the Commission in 2002.

(176)

However, the Commission considers that the EIGs involved in tax lease operations do not meet all the conditions to be eligible for the Spanish TT.

(177)

The Commission authorised the Spanish TT as compatible aid on the basis of the Maritime Guidelines, which apply only to undertakings carrying on genuine maritime transport activities (94) either with their own vessels or with chartered vessels. By way of exception, the TT can apply to activities that the Guidelines regard as ancillary or assimilated to maritime transport. For instance, under certain conditions, ship management, dredging or towing activities may qualify for aid (95). By contrast, the mere ownership of a vessel, its acquisition through financial leasing or its renting or chartering out to third parties, without assuming full responsibility for the vessel’s operation, cannot be regarded as a qualifying activity. Obviously, the beneficiary of the TT system should be the one carrying on the qualifying transport activity with the qualifying vessel.

(178)

It is true that, by way of exception, bareboat chartering activities have previously been allowed by the Commission as part of certain notified TT schemes, but only on a temporary basis and under specific circumstances related to overcapacity (96). Under those conditions, the core activity of the concerned undertakings remains maritime transport and the revenues from bareboat chartering-out activities can be regarded as ancillary to that core activity. This tolerance is fully in line with objectives of the Maritime Guidelines: ‘maintaining and improving maritime know-how and protecting and promoting employment for European seafarers’ and ‘contributing to the consolidation of the maritime cluster established in the Member States while maintaining an overall competitive fleet on world markets’ (97).

(179)

In line with the Maritime Guidelines, Commission Decision C(2002) 582 final of 27 February 2002 authorising the Spanish TT system explicitly mentions that only maritime transport activities qualify for the TT (98). Indeed, Section 2.4. ‘Recipients’ provides that: ‘Recipients of the Tonnage Tax scheme can be maritime companies registered under Spanish law, whose activity includes the operation of owned and chartered ships’ (our underlining) and its Section 2.5. ‘Qualifying activities/ships’ provides that: ‘The Tonnage Tax scheme only covers income from seagoing ships operated in maritime transport activities. Qualifying activities are targeted to include only maritime transport’ (our underlining).

(180)

From the wording of the 2002 Commission Decision, adopted on the basis of the Maritime Guidelines, it follows that undertakings identified as shipowners under Spanish law may benefit from the TT system provided that they carry on their qualifying maritime transport activities — and within the limits of these.

(181)

The Commission considers that the activity carried on by the EIGs involved in STL operations cannot be regarded as a transport activity. When it switches to the TT system the EIG leases in a single vessel from a leasing company and charters it out to a third-party shipowner on a bareboat basis. If the third-party shipowner operates the vessel to provide maritime transport services, it can be eligible for the TT. However, the EIG only puts a vessel at the disposal of a third-party shipping company that operates it. The EIG is therefore an intermediary providing rental or leasing services, not transport services.

(182)

The EIGs involved in STL operations usually charter out the only vessel that they own or lease in, which therefore represents the whole of their fleet. In such circumstances, the EIG does not bear any risk or responsibility in terms of technical, crew or even commercial management of the vessel. It is a pure intermediary and the revenues from bareboat chartering out cannot be regarded as ancillary to a maritime transport activity.

(183)

In addition, EIGs stay within the TT system for a short period of time, i.e. the two weeks needed to exercise the option of the leasing contract and for the shipowner to exercise the option associated with the charter contract. Allowing this type of activities under the TT system does not appear to increase in any lasting way the tonnage under the flag of — or controlled by — EEA countries. For the same reasons, the EIGs involved in STL operations do not appear to contribute to the objective of ‘maintaining … maritime know-how and protecting … employment for European seafarers’ or to the ‘consolidation of the maritime cluster’.

(184)

In conclusion, the approval that follows from the 2002 Decision does not imply that the activity of undertakings such as the EIGs involved in STL can be considered a maritime transport activity.

(185)

Therefore, the Commission considers that including undertakings such as the EIGs involved in STL (99) operations under the TT scheme leads to the award of new aid, either through the calculation of the taxable revenue as a function of the tonnage operated or the possibility of postponing the settlement of hidden tax liabilities until the vessel is either sold or dismantled, pursuant to Article 125(2) TRLIS.

(186)

Early depreciation of leased assets (Articles 115(11) and 48(4) TRLIS and Article 49 RIS, Measure 2) is not existing aid because it was introduced in 2002, i.e. after Spain joined the EU in 1986 and was never notified to the Commission or approved by it. Furthermore, the effect of this measure can be clearly separated from the effect of accelerated depreciation. This measure constitutes unlawful aid.

(187)

Similarly, Article 50(3) RIS, which allowed the exemption of capital gains on vessels acquired in the context of previously authorised leasing contracts (Measure 5) entered into force in 2002 without prior notification or approval by the Commission.

(188)

The Commission considers that the approval granted in 2002 does not cover the implementing measures and, in particular, Article 50(3) RIS because it introduces an exception to the special procedure applicable to used vessels pursuant to Article 125(2) TRLIS, which means an additional advantage. This exception should have been notified together with the legal provisions approved by the Commission, but it was not.

(189)

The application of Article 125(2) TRLIS does not appear to require any further definition or clarification. It would normally trigger the taxation of the capital gain made by a lessor on the transfer of a vessel to the lessee (shipping company). If Spain considered that a clarification was necessary, this should have been done upon notification.

(190)

Consequently, the implementing measures and, in particular, Article 50(3) RIS also constitute unlawful aid.

(191)

The Commission concludes that the following measures constitute State aid, on an individual basis and in the context of the STL:

(192)

In principle, State aid as defined by Article 107(1) TFEU is prohibited. However, Article 107(2) provides that certain types of aid are compatible and Article 107(3) that certain types of aid or aid to certain recipients can be declared compatible by the Commission. Depending on the category of recipients, specific rules such as the Maritime Guidelines (100) or the Shipbuilding Framework (101) could apply.

(193)

Neither the Spanish authorities nor the third parties identified as recipients in this decision have invoked the application of any other provision of Article 107(2) and (3) TFEU or the application of any other State aid framework adopted on the basis of Article 107(3)(c) TFEU.

(194)

As stated in recital 71 above, the Spanish authorities and certain third parties consider that chartering out is covered by the 2002 Decision authorising the Spanish TT scheme because it refers to the operation of owned and chartered ships.

(195)

The Commission does not agree with this interpretation of the 2002 Decision. Both the Maritime Guidelines and the 2002 Decision make it clear that the TT should apply only to maritime transport activities (102). As a rule, revenues from other activities outside transport — even when carried out by a maritime transport company — cannot be taxed according to the TT system (103) unless by explicit exception and under certain conditions (ancillary activities, dredging, towage).

(196)

In this context, ‘the operation of owned and chartered ships’ mentioned as an eligible activity in the 2002 Decision only covers the ‘operation’ of vessels that are either owned or chartered on a bareboat basis and operated — in the case of both owned and chartered ships — by a maritime transport company.

(197)

As already mentioned in Section 5.3.2.4, the financial EIGs involved in STL financing operations do not operate vessels themselves and do not provide any maritime transport service. They are financial intermediaries involved in the collective financing of an asset. They do not intervene in the strategic, technical, crew or even commercial management of the vessel they charter out and they do not bear any risk or responsibility for the provision of maritime transport services.

(198)

In addition, the Commission notes that the EIGs involved in STL operations charter out their sole vessel with both a buy (or ‘call’) option which, from the outset, the shipping company undertakes to exercise and a sell (or ‘put’) option which the EIG can exercise. This is equivalent to a delayed — yet definitive — transfer of ownership of the whole of the EIG’s fleet. Consequently, the EIG is not in the same situation as shipowners that are suffering from temporary overcapacity and, in search of some flexibility, charter out part of their fleet to third-party operators for a limited period of time (see recital 178 above).

(199)

For all these reasons, the Commission considers that the EIGs involved in STL operations are neither eligible for the Spanish Tonnage Tax system as authorised by the Commission nor covered by the provisions of the Maritime Guidelines.

(200)

However, the Commission considers that, in view of the general character of leasing operations, the EIGs involved in STL operations and their investors act as intermediaries which channel to other recipients (shipping companies) an advantage that pursues an objective of common interest.

(201)

In line with the approach adopted in the Decision of 20 December 2006 concerning the French GIE fiscaux (104), the Commission takes the view that, when it represents a fair remuneration for their intermediation in the transfer to the shipping companies of an advantage that pursues an objective of common interest, the aid retained by the EIG or its investors would be found compatible in the same proportion. It is true that, in this case, there is no legal obligation for the EIGs to transfer part of the aid received to the shipping companies. However, in the exercise of its discretion when assessing the compatibility of the measure under Article 107(3)(c) TFEU, the Commission considers it appropriate to take into account the favourable effects of the measure for the maritime sector and to apply mutatis mutandis the provisions of the Maritime Guidelines — normally applicable to aid measures — to the advantage transferred to the shipping company. Therefore, if the application of the Maritime Guidelines to a shipping company involved in a specific STL operation results in a ratio of compatible advantage over a total advantage of x%, the same percentage of the aid retained by the EIG or its investors is compatible.

(202)

Since the advantage is of benefit to the shipping companies, Article 107(3)(c) TFEU together with the Maritime Guidelines (105) is the only relevant framework to assess its compatibility.

(203)

The Commission considers that the shipping companies do not benefit from State aid within the meaning of Article 107(1) TFEU. Nevertheless, in order to identify the amount of compatible aid at the level of EIGs — as intermediaries channelling to shipping companies an advantage that pursues an objective of common interest — the Commission considers that the Maritime Guidelines should be applied mutatis mutandis to the advantage transferred by the EIG to the shipping company in order to determine: (1) the amount of the aid initially received by the EIG and transferred to the shipping company that would have been compatible if the amount transferred constituted State aid to the shipping company; (2) the proportion of that compatible advantage in the total advantage transferred to the shipping company; and (3) the amount of aid that should be deemed compatible as remuneration of the EIGs for their intermediation.

(204)

The Maritime Guidelines describe different categories of State aid and the conditions under which aid can be authorised by the Commission. In particular, the Guidelines make it clear that they apply only to maritime transport activities and a limited number of ancillary or assimilated activities.

(205)

When an end-user shipping company provides maritime transport services (or assimilated activities) and meets all the conditions of the Guidelines, an advantage received by this company and which constitutes aid would be compatible with the internal market.

(206)

Pursuant to the Maritime Guidelines, aid can be granted through different categories of measures. One of the main conditions imposed by Article 10 of the 1997 Guidelines and Article 11 of the 2004 Maritime Guidelines is an overall aid ceiling, i.e. a maximum amount of State aid that an undertaking can be granted which can be deemed compatible with the internal market (106).

(207)

Under the 1997 Guidelines, the aid ceiling corresponds to ‘a reduction to zero of taxation and social charges of seafarers and of corporate taxation of shipping activities’. Under the 2004 Guidelines, the ceiling corresponds to a reduction to zero of taxation and social charges of seafarers and a tax reduction by application of a TT scheme. However, the 2004 Guidelines also state that ‘the total amount of aid granted … should not exceed the total amount of taxes and social contributions collected from shipping activities and seafarers.’

(208)

Regarding the application of the aid ceiling to specific beneficiary shipowners, the Commission considers that it should be envisaged at EEA level. This means that the ceiling should take due account of the corporate tax and the social charges paid by the recipients in other EEA Member States. This approach is consistent with the FagorBrandt case-law (107) which confirmed that the assessment of a State aid measure should take due account of the cumulative effect of possible aid awarded in different Member States.

(209)

As the case at hand concerns aid awarded to the EIGs in respect of the acquisition — by a shipowner — of a long-term asset, the Commission agrees with the Spanish authorities that the advantage received by the shipping company should be spread over the asset’s normal depreciation period (10 years from a tax point of view) and compared to the total amount of taxes and social charges paid over the same period.

(210)

In accordance with the ceiling, all advantages granted in excess of the total amount of income tax and social charges of seafarers and corporate taxation of shipping activities must be regarded as incompatible with the Treaty.

(211)

Article 14 of Regulation (EC) No 659/1999 provides that, where negative decisions are taken in cases of unlawful aid, the Commission shall decide that the Member State concerned shall take all necessary measures to recover the aid from the beneficiary. Through recovery of the aid, the competitive position that existed before it was granted is restored as far as is possible.

(212)

However, Article 14 of the Regulation also provides that the Commission shall not require recovery of the aid if this would be contrary to a general principle of Community law. This section examines whether the general principles of equal treatment, protection of legitimate expectations or legal certainty prevent the Commission from ordering the recovery of all or part of the aid granted in the past.

(213)

The principle of equal treatment and non-discrimination requires that comparable situations are not treated differently and that different situations are not treated equally unless such treatment is objectively justified (108).

(214)

The French GIE Fiscaux scheme is indeed comparable to the STL in a number of respects. It requires the intermediation of a tax transparent EIG or investors between the builder of a long-term asset and the buyer to which the EIG leases or charters the asset. The EIG applies accelerated and early depreciation to the asset and the capital gain resulting from the sale of the asset is exempted from corporate tax. The EIG or its investors return a substantial part of the benefits resulting from the tax measures to the buyer of the asset (for instance, a shipping company) through a reduction of the rent or the buy option price. However, the French scheme featured an explicit exemption of capital gains whereas, in the STL, this exemption results from the joint application of the TT system and Article 50(3) RIS to the EIG.

(215)

The Commission also notes that the legal context and procedural history of the French and Spanish cases are different and that the Commission refrained from ordering the recovery for part of the period under assessment in its 2006 final decision on the GIE Fiscaux for reasons related to the specific procedural history of that case. In particular, France had not formally notified the scheme to the Commission but had informed it before implementing the scheme. The Commission also observes that, when it initiated the formal investigation procedure with respect to the GIE Fiscaux, it had never before ruled on a similar case. On the contrary, when it initiated the formal investigation with respect to the STL, the Commission had already ruled that a similar scheme — precisely the French GIE Fiscaux — was a State aid scheme. Since the legal and factual context of the GIE Fiscaux differs from that of the STL, the Commission considers that different treatment could be justified. However, as the Commission will explain in Section 5.6.3 below, reasons relating to the principle of legal certainty led the Commission to refrain from ordering recovery in this case until the date of publication of the Decision concerning the French GIE Fiscaux.

(216)

The Commission further considers that, in the cases mentioned in recital 92 above, the application of the principle of legitimate expectations to similar measures was justified in respect of circumstances specific to each case. For the Spanish Goodwill case, a reply to an MEP had clearly qualified the scheme as a general measure. For the coordination centres and intragroup activities of multinational companies (109), the Commission found that legitimate expectations existed on the basis not only of the prior authorisation of the Belgian Coordination Centres as a general measure in 1984 and 1987 but also of the answer given by the Commission to a Parliamentary Question (110). This stated that a broad range of tax measures — ‘rules governing taxation of the European headquarters of multinational groups, designed to avoid double taxation’ — ‘fell outside the scope of the State aid rules’. Moreover, all those schemes had been implemented after the reply to the Parliamentary Question was given. In the Gibraltar Qualifying Companies case, the existence of legitimate expectations relied on the fact that the measure was modelled on another measure in the same Member State — the Exempt Companies scheme — which constituted existing aid. Similarly, the Orkney and Shetland measures were modelled on each other.

(217)

With regard to the STL, the Commission therefore considers that the general principle of equal treatment is met if, taking into account the specific circumstances of the scheme, the principles of protection of legitimate expectations and legal certainty (see sections 5.6.2 and 5.6.3 below) are respected.

(218)

Legitimate expectations would result from an action by the Commission that provided precise, unconditional and consistent assurances (111) of such a nature as to give rise to hopes — that are justified (112) — on the part of the authorities or beneficiaries under a scheme that it was lawful (113). According to the case-law, no legitimate expectations can in principle be recognised in the absence of a proper notification (114), (115), unless exceptional circumstances are identified (116).

(219)

The Commission observes that Spain failed to notify the STL to the Commission and that the statement made in its 2001 Decision concerned a different scheme — the predecessor scheme of the one assessed in the GIE Fiscaux Decision — and made an explicit reference to the legal system of another Member State. As a consequence, the Commission considers that this statement does not constitute exceptional circumstances and is not sufficient to justify the acknowledgement of legitimate expectations in favour of Spain and third-party operators involved in STL operations. This conclusion is consistent with the approach adopted in the 2006 Commission Decision concerning the GIE Fiscaux where the Commission did not identify any element demonstrating the existence of legitimate expectations (117).

(220)

The publication of draft measures in the Official Gazette of a Member State’s Parliament does not meet the requirement of formal notification and stand-still imposed by this provision of the Treaty. The Commission notes that the early depreciation measure was implemented 21 months after the publication of Regulation (EC) No 659/1999 without prior notification and at the same time as the TT scheme, which was properly notified to — and authorised by — the Commission in accordance with the provisions of the Treaty and the abovementioned Regulation.

(221)

The Commission considers that this letter is not liable to have created any justified hopes concerning the STL or the individual measures involved in STL operations.

(222)

In accordance with Article 10(1) and (2) of Regulation (EC) No 659/1999, the Commission analysed the information it had in its possession regarding alleged unlawful aid and, on 21 December 2001, requested information from the Member State. In the first place, the Commission notes that a request for information is not a public document. Second, contrary to what PYMAR claims, this request shows that the Commission did not have the necessary information to identify and assess the alleged unlawful aid. As such, even if it had been made public, it could not have created any legitimate expectation that the scheme did not constitute aid. Third, and most importantly, by letters of 28 January 2002 and 28 May 2002 the Spanish authorities categorically denied that any tax measure was available in support of the acquisition of ships for contracts signed after 31 December 2000.

(223)

The Commission considers that the 2004 Decision could not have created justified hopes in respect of the STL or the individual measures involved in STL operations for the following reasons:

(224)

First, the subject of the Commission investigation in this case was not a Spanish measure but a scheme notified by the Dutch Government intended to compensate Dutch shipyards or allow them to match offers made in 2000 (119) by Spanish shipyards which allegedly benefited from State aid granted by Spain with respect to six specific shipbuilding contracts. Consequently, the purpose of the 2004 Commission Decision was to provide an assessment of the aid notified by the Netherlands and not of any aid allegedly awarded by Spain.

(225)

Second, the Spanish measure that the Netherlands intended to match was neither the STL nor any of its components. As mentioned in the 2003 Decision to open the formal proceedings in that case, the Dutch authorities clearly invoked aid in the form of interest subsidies on credits allegedly awarded to shipowners under Spanish Royal Decree 442/94 (120). Moreover, the Commission notes that both the early depreciation of leased assets and the Spanish TT scheme only entered into force on 1 January 2002. A draft of those measures was only published in the Official Gazette of the Spanish Parliament on 10 October 2001. Therefore, they could not have been used to finance shipbuilding contracts in 2000.

(226)

Third, even if the operators had imagined that the Spanish measure that was intended to be matched was the STL — which is not the case — the statements made in the 2004 Decision could not create any legitimate expectations. Indeed, the Commission stated that it did not have ‘sufficient proof of the alleged Spanish aid’ because Spain had indicated that the aid under Royal Decree 442/94 would no longer be available after 31 December 2000. After that date, the aid would no longer be authorised under the Shipbuilding Regulation (121). However, the subject of the Commission investigation was the Dutch matching aid, not the alleged Spanish aid and the main doubt raised by the Commission in the decision to open proceedings concerned the possibility under the Framework on State aid to shipbuilding (122) of matching aid — once it had been proven — awarded by another Member State, and not by a non-EU State.

(227)

The absence of proof of the alleged aid came as a secondary argument in the doubts expressed by the Commission. After asking Spain for clarifications based on the information provided by the Netherlands, the Commission could only record the Spanish denial that aid was granted (123) (pursuant to Spanish Royal Decree 442/94) and conclude that the Netherlands had failed to provide sufficient proof of the Spanish aid to be matched. The lack of proof of State aid does not amount to proof of the non-existence of State aid in (any) Spanish measure. On the contrary, the Commission had already clarified in the decision to open proceedings that it had ‘not been able to establish that Spain had illegally granted the alleged aid, but the Commission continues to keep the EU shipbuilding market, and potential State aid violations, under review (124).’ Had they considered in good faith that the Spanish aid that the Netherlands intended to match was the STL, the actual or potential recipients of the STL should have been alerted by the fact that Spain had denied its existence rather than pleaded its compatibility.

(228)

The Commission considers that neither its decision to open the formal proceedings in the French GIE Fiscaux in 2004 nor its 2006 final decision concluding that the scheme was partly incompatible aid can possibly have created any legitimate expectations, as argued by PYMAR.

(229)

Indeed, aid measures must be notified to the Commission. In the absence of a notification, only exceptional circumstances can lead the Member State and operators legitimately to expect that a measure does not constitute aid. However, if the notification and approval procedure was not respected, it cannot legitimately be expected that a measure which amounts to State aid is compatible with the internal market.

(230)

On the contrary, in the French GIE Fiscaux Decision of 20 December 2006, the Commission clearly expressed its position that the French tax lease scheme conferred State aid. The fact that the STL was a tax lease scheme similar to the French scheme should have alerted Spain and the recipients to the likelihood that the STL could constitute State aid. Therefore, any legitimate expectations that existed before publication in the Official Journal of the European Union on 30 April 2007 of the Decision concerning the French scheme would have ceased being legitimate from that date.

(231)

Similarly, the mere fact that the incompatible aid was not recovered in the French case is insufficient to create legitimate expectations that incompatible aid possibly identified in the Spanish case would not be recovered. Indeed, if there were any reasons to prevent the Commission from requesting the Member State to recover the aid, these would have to be found in the specific circumstances of the case.

(232)

The Commission considers that the letter sent by Commissioner Kroes could not have created any justified hopes concerning the STL or the individual measures involved in STL operations for the following reasons:

(233)

First of all, this letter is not a formal act representing the position of the Commission — i.e. the College of Commissioners — as would be a formal Commission Decision or the answer to a Parliamentary Question. In her one-page letter, Commissioner Kroes replied, in the context of a bilateral exchange, to a one-page letter sent by Ms Brustad, Norwegian Minister for Trade and Industry. The content of this letter was not made public by the Commission.

(234)

The Commission notes that the letter from the Norwegian shipowner — mentioned in recital 105 above — is addressed to a single Spanish shipyard with which the shipowner is doing business and that the testimony, dated 2012, comes from Gerencia del Sector Naval, a government body. The Commission also notes that neither the Spanish authorities — who knew that the investigation was ongoing — nor the operators considering STL operations asked the Commission to clarify the position expressed in Commissioner Kroes’s letter.

(235)

Second, and more importantly, even if that letter was made public in 2009, it did not provide specific, unconditional and concordant assurances that the STL was lawful. Indeed, the answer given by Commissioner Kroes focuses on alleged discriminations between shipyards established in different EEA countries. The conclusion of the letter that no further action was envisaged ‘at that stage’ was clearly linked to the recent publication of a statement clarifying that the STL could be used for the acquisition of ships produced in other European countries, which directly addressed the concerns expressed by Ms Brustad. In any event, the letter did not even mention, and even less took any position regarding, the presence of State aid at the level of the EIG or its investors. As regards shipping companies, shipyards and intermediaries, the Commission considers that they are not recipients of the aid, so that the issue of legitimate expectations does not arise.

(236)

The Commission therefore considers that the letter did not in any case provide precise, unconditional and consistent assurances liable to create legitimate expectations that the scheme did not contain State aid to the benefit of the EIG or its investors.

(237)

As the Commission did not identify the existence of legitimate expectations on the basis of the letter, the question whether such legitimate expectations would cover the period before the letter is of no relevance whatsoever.

(238)

As the individual measures constitute State aid (except for the accelerated depreciation of leased assets), the fact that economic operators could not foresee that their combination could also be regarded as State aid is irrelevant and does not justify the existence of legitimate expectations or the breach of any other fundamental principle of EU law.

(239)

On the contrary, several third parties among the operators involved in STL operations have argued that the 2006 Decision in the French GIE Fiscaux case had given them legitimate expectations because the measure was very similar to the STL. The fact that all the features of the French measure were included in one legal provision necessarily implies a global assessment. In that respect, the fact that the different elements of the STL were included in different measures — de facto linked and used together — to produce similar effects should not guarantee a different approach and does not rule out a global assessment.

(240)

In any case, the Commission considers that both the early depreciation of leased assets and the tax exemption — pursuant to Article 50(3) RIS — of the capital gains realised under the TT constitute State aid in each case. In the absence of any notification of these provisions, operators could only have legitimate expectations that they were lawful in exceptional circumstances that have not been demonstrated.

(241)

The Commission notes that the wording of the Notice did not provide any grounds for operators to harbour legitimate expectations that the STL was lawful. First, the provisions invoked refer only to depreciation methods so that legitimate expectations, if any, could only cover the early depreciation of leased assets.

(242)

Second, the Notice cannot be interpreted in such a way that any measure related to depreciation falls outside the scope of State aid rules. Indeed, recital 13 of the Notice states that depreciation rules and rules on loss carry-overs do not constitute aid provided that they apply without distinction to all firms and to the production of all goods. The STL is not applicable to all firms or to the production of all goods.

(243)

Moreover, recital 22 of the same Notice clarifies that the level of discretion enjoyed by the tax administration and the room for manoeuvre which it enjoys support the presumption that there is State aid involved. As explained in Section 2.2.2 above, the application of early depreciation is subject to conditions — the wording of which requires interpretation — and prior authorisation by the tax administration. Before granting the authorisation the administration can request additional documents from the applicant or information from other administrations. The fact that additional documents were present in all the application files available to the Commission suggests that they were — explicitly or implicitly — requested by the administration or that the applicants knew that they were necessary to obtain the authorisation. As a consequence, the administration enjoyed wide discretionary powers in the application of this measure.

(244)

Consequently, in view of the characteristics of the scheme, the wording of the Notice could not give rise to uncertainty, even less to legitimate expectations as far as the aid character of the early depreciation is concerned.

(245)

The authorisation granted by Commission Decision C(2002) 582 final of 27 February 2002 refers to ‘companies registered under Spanish law, whose activity includes the operation of owned and chartered ships’. However, the Commission considers that this sentence cannot create any legitimate expectations that entities whose activities exclusively consist of chartering out one vessel on a bareboat basis would be eligible for the TT scheme. Indeed, as explained in recitals 179 and 180 above, the 2002 Decision is clear that the TT scheme should apply exclusively with respect to qualifying vessels and qualifying maritime transport activities.

(246)

Legal certainty is a fundamental requirement of European law designed to ensure the foreseeability of legal situations and relationships governed by it. According to the case-law, the requirement of legal certainty prevents the Commission from indefinitely delaying the exercise of its powers and it does not imply action by the institution concerned (126). However, until now two cumulative elements have been required for that principle to be breached:

(247)

The French GIE Fiscaux Decision and the Salzgitter judgment (127) are the only two occasions where the Commission and the Court of First Instance, respectively, considered that violation of the principle of legal certainty can prevent recovery even if there are no legitimate expectations. However, the judgment in Salzgitter was set aside by the Court of Justice precisely regarding the application of the principle of legal certainty to the case (128).

(248)

The STL and the French GIE Fiscaux share a number of key characteristics and have very similar effects (see Section 5.6.1 Equal treatment). Both are used in the financing of long-term investment assets. They feature tax-transparent EIGs that depreciate the assets and transfer their ownership to their final user through some type of leasing contract. In both cases, the depreciation is early or accelerated and the capital gains by the EIG are tax exempted. In both cases, the economic advantage resulting from the early or accelerated depreciation and from the exemption of capital gains is shared between the investors in the EIGs and the final user of the asset (through a price rebate), although there are major differences as regards the state intervention in this respect.

(249)

The key measures that form part of the STL system were implemented between 2002 (129) and 2003, i.e. before the Commission decided that the French system constituted State aid.

(250)

In view of the similarity of the STL and the GIE Fiscaux, it is therefore possible — as argued by the Spanish authorities and certain third parties — that events invoked in favour of the protection of legal certainty for the French system have also created a situation of uncertainty concerning the regularity of the STL.

(251)

On this point, the Commission concludes that this situation of uncertainty could indeed have been created by the Commission’s statement in its 2001 Brittany Ferries Decision (130), to the effect that certain tax advantages were a general measure. As explained in recital 192 of the GIE Fiscaux Decision, this statement did not specify that it referred to the predecessor scheme of GIE Fiscaux, which may have misled the recipients of that scheme and of a similar scheme, such as STL.

(252)

As for the other elements invoked by Spain and third parties, the Commission has analysed whether the elements invoked to support the existence of legitimate expectations (see Section 5.6.1) could have created a situation of uncertainty.

(253)

First, Member States have an obligation under the Treaty to notify the Commission of their plans to grant new aid. The publication of the draft measures in the Official Gazette of the Spanish Parliament cannot be regarded as a notification to the Commission and the absence of reaction by the Commission cannot have contributed to creating a situation of uncertainty.

(254)

Second, the 2001 request for information concerning a tax leasing measure shows that the Commission reacted to allegations of aid made by a complainant. This request was addressed to Spain and in its replies Spain strongly denied the existence of such measures. The request was not made public by the Commission but if, for any reason, future recipients of the STL happened to find out about this request for information at the time they intended to participate in the scheme, it should have alerted them to the fact that a complaint had been filed with the Commission, which considered that the measures of this scheme could constitute State aid. A request for information would also indicate that the Commission did not have sufficient knowledge of the measure to assess it and would not lead to the conclusion that the Commission approved the measure. Moreover, as this request was sent before the entry into force of the measures making up the STL, Spain could have notified all the elements of the scheme in order to obtaining legal certainty. Alternatively, recipients should have asked Spain — or the Commission — about the notification of the scheme by Spain or its approval by the Commission. Consequently, neither Spain nor the operators could argue that this request or — in view of the answer given — the absence of follow-up action from the Commission has contributed to creating a situation of uncertainty.

(255)

Third, as to the 2004 Decision concerning the Dutch compensation measure, the Commission points out that compensation for a different measure from the STL cannot have created a situation of uncertainty with respect to the STL. The fact that a precise description of the alleged Spanish aid in public documents was only provided in the Dutch version of the decision to open the formal investigation procedure is not sufficient to conclude that readers could assume that it concerned the STL. Indeed, a translation of the Dutch decision or an inquiry to the Commission could easily have clarified that the alleged Spanish aid involved interest-rate subsidies on the basis of Royal Decree 442/1994. In addition, the Commission merely mentioned the fact that Spain had denied the existence of the alleged Spanish aid and that the Netherlands had failed to bring sufficient proof. As mentioned in that Decision, the Commission can only trust the Member State and cannot be held responsible for the uncertainty, if any, that the absence of follow-up action on its part could have caused. The Commission therefore finds that the 2004 Decision could not have contributed to a situation of uncertainty regarding the lawfulness of the STL.

(256)

Fourth, the Commission considers that the situation of uncertainty created with respect to the lawfulness of the STL as a result of the statement made in the 2001 Commission Decision concerning Brittany Ferries stopped on the date of publication of the Commission Decision on the French GIE Fiscaux. That Decision made it clear that the Commission regarded the French tax lease scheme as State aid and should have alerted Spain and the beneficiaries of the STL to the fact that the scheme could constitute State aid. As a result, it cannot possibly have created — or contributed to — a situation of uncertainty in that respect.

(257)

Fifth, for the reasons set out in Section 5.6.2.6 above, the Commission considers that the letter sent by Commissioner Kroes in 2009 did not create or contribute to creating a situation of uncertainty.

(258)

The Commission considers that the time elapsed in the investigation of the STL before initiating the formal investigation procedure should be calculated from 2006 when the Commission received the complaints from European shipyards. Indeed, for the reasons set out above, neither the publication of the draft measures in the Spanish Official Gazette, nor the allegations received by the Commission in 2001 and explicitly denied by Spain in 2002 support the view that the Commission has unduly delayed the exercise of its investigative powers. Nor does the 2004 final Decision in Case C-66/2003, which concerned the matching of a different alleged State aid measure, support this opinion.

(259)

The time that elapsed between the first complaint in 2006 and the opening of the formal procedure in 2011 does not appear excessive given the number of tax measures involved, the complexity of tax lease operations and the lack of transparency concerning these lease operations. In addition, the Commission sent eight formal requests for information between September 2006 and May 2010 (131) and was regularly in contact with the Spanish authorities.

(260)

Furthermore, it was only in October 2010 that the Commission received a new complaint containing a key element for the assessment of the scheme, namely a comprehensive study by tax experts, describing the functioning of the scheme and its effects. Consequently, the time elapsed in the investigation of the STL does not appear sufficient to invoke legal certainty.

(261)

In view of the complexity of the measures at hand, the Commission cannot rule out that legal uncertainty may have been created by the 2001 Decision on Brittany Ferries, as alleged by Spain and the recipients, regarding the classification of the STL as aid. But this can only have been the case until the publication in the Official Journal on 30 April 2007 of the Commission Decision on the French GIE Fiscaux, where the Commission established that that scheme constituted State aid.

(262)

As a consequence, the Commission concludes that it should not order the recovery of aid resulting from STL operations in respect of which the aid was granted between the entry into force of the STL in 2002 and 30 April 2007.

(263)

The Commission has assessed different tax measures which constitute State aid schemes. It is not the purpose of this Decision to establish the precise amounts of aid received by each beneficiary in each of the STL operations. However, the Commission considers that the following methodology should be followed by the Member State in order to determine, on a case-by-case basis, the recipients of aid and the amount of incompatible aid to be recovered from them. This methodology can be further refined in cooperation with the Spanish authorities, in particular in order to establish the actual amount of the tax advantage enjoyed by the investors, in the light of their individual tax situation.

(264)

Step 1: Calculation of the total tax advantage generated by the operation: This is the net present value (NPV) of the tax advantages actually obtained by the EIG or its investors (i.e. before the deduction of the part of those advantages transferred to the shipping company through a price rebate). The NPV should be calculated on the starting date of depreciation — early depreciation as authorised by the tax authorities — and the discount rates used for the purpose of that calculation should be based on market realities. The Commission suggests that, by default, Spain can use calculations provided by EIGs to the tax administration when applying for the early depreciation (see recital 168 above). In principle, the tax advantage is considered granted on the date when the taxes are due by the EIG or its investors.

(265)

Step 2: Calculation of the tax advantage generated by the general tax measures applied to the operation: This is the NPV — calculated in the same way as for step 1 — of the amount of the tax advantages that the EIG or its investors would have obtained in a reference situation in which only the accelerated depreciation measure would have been used from the moment the vessel started to be operated and the operation taxed according to normal corporate tax rules. In this scenario, the capital gain on the sale of the vessel to the shipping company would have been subject, on the date the option is exercised by the shipping company, to the corporate tax generally applicable to corporate profits. In principle, the tax advantage is considered to be obtained on the date when the taxes are due by the EIG or its investors.

(266)

Step 3: Calculation of the tax advantage equivalent to State aid: as the Commission considers accelerated depreciation to be a general measure, the amount of the advantage corresponding to that measure (i.e. the deferred payment of certain amounts of tax) does not constitute State aid. The difference between the amounts obtained in Step 1 and Step 2 should correspond to the aid that the EIG and its investors have received as recipients of the tax measures in question, i.e. the NPV of the total advantage derived from the use of early depreciation, the TT scheme (for which EIGs were not eligible) and the tax exemption of the capital gains achieved through Article 50(3) RIS. In principle, the tax advantage is deemed to be obtained on the date when the taxes are due by the EIG or its investors.

(267)

Step 4: Calculation of the amount of compatible aid: first, the aid received by the EIG or its investors as calculated in step 3 is compatible inasmuch as it corresponds to the advantage transferred to the shipping company which would have been compatible if it had been considered State aid to the shipping company. The percentage of the aid transferred to the shipping company must be determined on the basis of a calculation similar to those submitted by the EIGs in their application to the tax administration (see recital 136 above), and allowing a remuneration in conformity with the market for the intermediation. As explained in recitals 202 to 210 above, part of the advantage transferred to the shipping company can be regarded as compatible if the shipping company, the vessel concerned and its transport activities are eligible under the Maritime Guidelines. The amount compatible should be determined in compliance with Chapter 11 of the Guidelines and taking due account of all aid already granted to that shipping company in the EEA. In particular, the amounts of aid granted in Spain must be added to those granted in the company’s country of establishment (if it is an EEA member). The amount of aid exceeding the ceiling, or not proven to be compatible under Chapter 11 of the Maritime Guidelines, is to be regarded as incompatible.

(268)

As the ceiling in Chapter 11 of the Maritime Guidelines is calculated on an annual basis and the advantage received by the shipping company relates to a long-term asset, the Commission agrees that, for the application of that ceiling, the advantage resulting for the shipping company from the STL operation can be spread over the normal depreciation period (10 years) of the vessel concerned.

(269)

Second, inasmuch as it corresponds to a remuneration in conformity with the market for the intermediation of financial investors in the transfer of a compatible advantage to the shipping companies, this remuneration will also be regarded as compatible or incompatible aid in the same proportion as the advantage channelled to the shipping company (see recital 201 above).

(270)

As mentioned above, PYMAR has informed the Commission about certain clauses contained in certain contracts between the investors, the shipping companies and the shipyards. Under such clauses, the shipyards would be required to compensate the other parties if the expected tax advantages cannot be obtained.

(271)

In its final negative decision with partial recovery concerning the French GIE fiscaux case (132), which bears considerable similarities with the case at hand, the Commission noted that: ‘the fact that the legal and tax-related risks incurred by the members of EIGs may, in some cases, have been contractually passed on to the users of the assets cannot negate the principle that the Commission’s purpose in demanding, where appropriate, the recovery of unlawful aid is to deprive the various recipients of the advantage they have enjoyed in their respective markets compared with their competitors and to restore the status quo that existed before the aid was granted’. The Commission concluded that: ‘the achievement of that purpose cannot depend … on contractual stipulations agreed upon by the aid recipients’.

(272)

According to well-established case-law, the obligation on a State to abolish aid regarded by the Commission as being incompatible with the internal market has as its purpose to re-establish the previously existing situation (133). According to another formula, the main objective pursued in recovering unlawfully paid State aid is to eliminate the distortion of competition caused by the competitive advantage which such aid affords (134). By repaying the aid, the beneficiary forfeits the advantage which it had over its competitors in the market, and the situation prior to payment of the aid is restored (135).

(273)

In order to achieve that result, the Commission must have the power to order that recovery takes place from the actual recipients, so that it can fulfil the function of re-establishing the competitive situation in the market(s) where the distortion has occurred. To that effect, the Commission must be able to identify clearly the undertakings that are obliged to repay the unlawful aid that it declares incompatible. This objective would, however, be permanently frustrated if private parties were able, by contractual stipulations, to alter the effects of recovery decisions adopted by the Commission. That possibility, if available, could be used by economic operators enjoying substantial bargaining power to protect themselves from recovery decisions, thereby depriving State aid control of its practical consequences.

(274)

By way of comparison, in its recent Residex judgment (136), the Court of Justice declared that it is for the national court, taking account of all the particular features of the case, to identify the beneficiary or, as the case may be, the recipients of a guarantee constituting State aid and to effect recovery of the total amount of the aid in question. In addition, irrespective of who the beneficiary of the aid may be, and given that the objective of the measures that the national courts are bound to take in the event of infringement of Article 108(3) TFEU is, essentially, to restore the competitive situation existing prior to the payment of the aid in question, those courts must ensure that the measures which they take with regard to the validity of the above-mentioned acts make it possible for such an objective to be achieved. This shows that, when it is necessary to remedy the distortion caused by the aid, national courts may intervene and declare that contracts are invalid, even to the detriment of parties that are not recipients of the aid — in this case the lenders whose claims were assisted by the state guarantee. The same reasoning applies a fortiori to the Commission when it orders that the aid be effectively recovered from the recipients. In this respect, it should be stressed that the Commission is called upon to take a final decision on the aid measure, rather than ensuring, as national courts must do, that the rights of individuals are safeguarded where the obligation to give prior notification of State aid to the Commission pursuant to Article 108(3) TFEU has been infringed.

(275)

It follows that contractual clauses sheltering the recipients of the aid from recovery of illegal and incompatible aid, by transferring the legal and economic risks of such recovery to other persons, are contrary to the very essence of the system of State aid control established by the Treaty. Such a system is essential for accomplishing the tasks entrusted to the Community and, in particular, for the functioning of the internal market and therefore constitutes a set of rules of public policy (137). Therefore, private parties cannot depart from it by contractual stipulations.

(276)

This is all the more true in the situation under scrutiny in the STL system, where some of the shipyards are controlled by the State. To the extent that public shipyards have stipulated the contractual clauses sheltering the recipients from the recovery of aid, their behaviour would prevent the recovery of unlawful and incompatible State aid from fulfilling its function. In addition, the behaviour of state-controlled operators trying to shelter their contractual counterparts from recovery may put considerable pressure on their private competitors who may be induced to accept similar clauses in their contracts, thereby leading to a generalised protection of recipients from recovery.

—

Pursuant to the Maritime Guidelines and the Decision of 27 February 2002 authorising the Spanish TT system, activities which exclusively consist of leasing, chartering or renting out vessels do not constitute transport services. Consequently, those activities are in principle not eligible for the Spanish TT scheme as authorised by the Commission.

—

Articles 115(11) and 48(4) TRLIS and Article 49 RIS (early depreciation of leased assets), the application of the TT system to non-eligible EIGs as well as Article 50(3) RIS constitute State aid within the meaning of Article 107(1) TFEU.

—

Those measures are not existing aid within the meaning of Article 1(b) of Regulation (EC) No 659/1999 as they were neither notified nor otherwise authorised by the Commission.

—

Spain has unlawfully implemented the aid in question in breach of Article 108(3) of the Treaty on the Functioning of the European Union.

—

It follows that the so-called Spanish Tax Lease system, involving the joint use of Articles 115(11) and 48(4) TRLIS and Article 49 RIS (early depreciation of leased assets), the application of the TT system to non-eligible EIGs as well as the use of Article 50(3) RIS, is unlawful.

—

Aid to the EIG or its investors can be regarded as compatible with the internal market inasmuch as it corresponds to a remuneration in conformity with the market for the intermediation of financial investors and it is channelled to maritime transport companies that are eligible under the Maritime Guidelines in compliance with the conditions laid down in those Guidelines. This implies, in particular, that the total amount transferred to the shipping companies does not exceed the ceiling imposed by Chapter 11 of the Guidelines.

—

The part of the aid which exceeds the amount of compatible aid should be recovered from the recipients, i.e. EIGs and their investors without the possibility for such recipients to transfer the burden of recovery to other persons.

—

The Commission should not order the recovery of aid resulting from STL operations in respect of which the aid was granted between the entry into force of the STL in 2002 and 30 April 2007, the date of publication of the Decision concerning Case C-46/2004 France GIE Fiscaux (see recital 261 above).

—

Beyond that date, ordering the recovery would not breach the general principles of protection of legitimate expectations and legal certainty enshrined in European Union law,

(1)

By electronic notification of 18 May 2011, the Italian authorities notified, in accordance with Article 108(3) of the Treaty, compensation given to Simet SpA (‘Simet’) for the provision of inter-regional bus transport services under a public service obligation carried out during the period 1987–2003, as ordered by the Council of State (Consiglio di Stato), Italy’s Supreme Administrative Court (‘the notified measure’). This notification was registered under case number SA.33037.

(2)

Further information on the notified measure was provided by the Italian authorities by submissions of 12 July 2011, 5 October 2011, 20 February 2012, 2 and 28 March 2012, and 17 April 2012.

(3)

By letter dated 31 May 2012, the Commission informed Italy that it had decided to initiate the procedure laid down in Article 108(2) of the Treaty (‘the opening decision’).

The following submissions were received within the accepted deadlines:

(4)

Simet is a private company providing scheduled passenger transport services by bus based on concessions granted by the Italian State under Law 1822/39 (2). More specifically, Simet operates a network of inter-regional scheduled bus connections between the Calabria Region and other Italian regions. In addition to these services, which account for approximately two thirds of its revenue, Simet also provides other services, including international travel services, tourism services and bus hire with driver (3), which account for the remaining third of its revenue.

(5)

In October 1999 Simet for the first time asked the Ministry for Infrastructure and Transport (‘the Ministry’) for compensation for its inter-regional bus service with respect to the years starting from 1987 (4). The Ministry denied this and subsequent requests, as it considered that it had not entrusted Simet with public service obligations.

(6)

According to the Italian authorities, Simet, like other providers of inter-regional scheduled bus transport services, operated on the basis of provisional licences (concessions) renewed annually at the request of the company. Those concessions gave the company the exclusive right to provide the relevant services. The annual concession specifications stated that delivering the service did not give the company the right to any subsidy or compensation of any kind and that the service was operated entirely at the company’s own risk. The fares proposed by the company itself were also reflected in the annual concession specifications accepted by the Ministry.

(7)

Over time, the company submitted a number of requests to change the arrangements for delivery of the services provided, which were usually approved in accordance with the procedure laid down in Presidential Decree 369/94 (5). Articles 4 and 5 of Presidential Decree 369/1994 provided for a detailed procedure for the assessment and comparative analysis of applications related to the introduction of any new service on the basis of a concession.

(8)

In response to the Ministry’s refusal to grant public service compensation for the period starting from 1987, Simet brought a legal action before the Italian administrative courts requesting compensation for the discharge of public service obligations.

(9)

On appeal, in judgment 1405/2010 of 9 March 2010 (‘judgment 1405/2010’), the Council of State recognised Simet’s right to receive compensation for its scheduled (predominantly inter-regional) bus services, provided under the concessions granted by the Italian State. The precise amount of the compensation was to be determined on the basis of reliable data from the company’s accounts.

(10)

As explained in more detail in the opening decision, judgment 1405/2010 does not precisely identify by which legal act the public service obligation was imposed, or in what form. Order 2072 of the Council of State issued on 18 January 2011, following the failure of the administration to comply with judgment 1405/2010, is more explicit in this respect, stating that ‘the Ministry has repeatedly denied the company the opportunity to change routes, times and stops and ordered it to keep fares at or below those charged by Ferrovie dello Stato (Italian State Railways) – these are elements that the company believes are indicative of carrying out a public service.’

(11)

While judgment 1405/2010 does mention the new Regulation (EC) No 1370/2007 of the European Parliament and of the Council (6), which governs public service compensation, insofar as it ‘lays down compensation criteria which are not dissimilar to those laid down in previous Community regulations’, the Council of State ordered the responsible authorities to pay compensation to Simet on the basis of Articles 6, 10 and 11 of Council Regulation (EEC) No 1191/69 (7).

(12)

The Italian authorities have decided to await the assessment of the notified measure by the Commission before executing the rulings of the Council of State (judgment 1405/2010 and order 2072/2010) and paying Simet the compensation.

(13)

As regards the amount of compensation to be paid to Simet for the services rendered, the Italian authorities submitted a report to the Commission, commissioned by Simet and prepared by an outside consultant (‘the initial report’), without endorsing the estimates it contained. The initial report estimated the compensation due at approximately EUR 59,4 million (8).

(14)

Subsequently, however, the claims for compensation were reassessed as, following the opening decision, the Council of State asked for an independent evaluation of the appropriate level of compensation. The outcome of that evaluation is discussed in sections 2.6 and 2.7.

(15)

Although SIMET claims compensation for services provided until the end of 2013 (9), the Italian authorities consider that the relevant period for the purposes of this notification covers only 1987 to 2003, as judgment 1405/2010 relates only to the appeal covering that period. In particular, point 3.1 of judgment 1405/2010 clearly refers to compensation for the years 1987 to 2003.

(16)

Following the Italian authorities’ refusal to execute judgment 1405/2010 and order 2072/2011, the Council of State made a new order, No 270/2012, appointing a panel of independent experts to decide how to enforce judgment 1405/2010.

(17)

The panel, comprising a chairman and two members, was tasked with calculating the amount of compensation payable to Simet under judgment 1405/2010. At the same time the parties to the dispute appointed their own experts, who commented on the preliminary findings of the panel of experts. This led to the exchange of a number of reports and replies over the ensuing months.

(18)

The panel of experts completed its work in August 2012. The panel did not reach a unanimous conclusion. Instead, two separate reports were submitted to the Council of State:

(19)

As the state aid procedure is still ongoing before the Commission, the Council of State has not yet adopted a final decision on the amount of compensation payable to Simet.

(20)

The minority report stresses the following points in particular:

(21)

In light of these deficiencies, the minority report concludes that there are no reliable data for calculating the compensation ordered by judgment 1405/2010 and thus that no amount of compensation can be determined.

(22)

The majority report uses the following methodology to calculate the compensation due to Simet:

(23)

For the years 1987 to 1992 and 2002 to 2003, the experts extrapolated revenue derived from scheduled bus services directly from the financial account statements. For the period 1993-2001 the experts used Simet’s documentation on revenue, since the financial account statements for that period do not detail revenue derived from those services (10). On the basis of these calculations, the total revenue for the period 1987-2003 was found to be EUR 57 213 440.

(24)

Since no analytical accounts were available for the period 1987 to 1992, the experts allocated costs to inter-regional scheduled bus services on the basis of the percentage of revenue generated by those same services during that period. The experts took the total amount of costs from each of the annual financial statements. Then, to reconstruct the operating costs, the experts deducted from total costs all the following non-operating costs: interest payable, financial charges, losses on disposal of assets, miscellaneous losses and costs, direct taxes and final inventories. Finally, the operating costs attributable to inter-regional scheduled bus services were determined on the basis of the percentage of revenue generated by the same scheduled bus services.

(25)

For the period 1993 to 2001, Simet changed the presentation of data in its annual financial statements (11). Consequently, for those years the experts deducted from the company’s annual financial statements the value of total operating costs, being the algebraic sum of the following production cost items: ancillary and consumable materials, outside services, use of property not owned, personnel costs, amortisation and depreciation, variation in stocks of raw, ancillary and consumable materials, and miscellaneous operating expenses. The operating costs attributable to scheduled bus services were then determined on the basis of the percentage of revenue generated by those same scheduled bus services (as was done for the period 1987-1992). For the years 2000 and 2001, even if some cost accounting was applied, the relevant documents were not exhaustive, which was why it was decided to use the same method for the identification of costs stemming from the scheduled bus service as for the previous years.

(26)

For the years 2002 and 2003, cost accounting data were available. The experts therefore divided costs into the following categories: (i) costs related to mileage; (ii) costs directly allocable to scheduled bus services; and (iii) allocable costs based on turnover.

(27)

After adding up the figures thus calculated for each of the above periods, the total costs related to the scheduled bus services for the period 1987-2003 were found to amount to EUR 59 510 413.

(28)

Consequently, after subtracting these costs from the revenues derived from scheduled bus services, the majority report arrives at an operating loss of EUR 2 296 973 for the period 1987-2003.

(29)

For each year under review, the experts determined the capital employed, being the sum of:

(30)

The ‘Weighted Average Cost of Capital’ (WACC) formula is taken as a basis for determining the remuneration rate of the capital employed.

Where:

Re	=	required rate of return on equity;
Rd	=	cost of debt; E = firm’s equity;
D	=	firm’s debt; ;
E/V	=	percentage of financing that is equity;
D/V	=	percentage of financing that is debt;
Tc	=	corporate tax rate

(31)

The required return on equity was calculated using the ‘Capital Asset Pricing Model’. This model describes the relationship between risk and expected return:

Where:

rf	=	Risk free rate
βa	=	Bata of the security
	=	Expected market return

(32)

The interest rate for ten-year government bonds, taken from national statistics, was used as a proxy for a risk-free rate (rf).

(33)

For the years for which compensation was to be assessed, the experts concluded that a 5,8 % risk premium (rm-rf) was on average asked by investors investing in stocks rather than in risk-free securities on the Italian market (12).

(34)

The beta (13) of the shares in Simet’s capital was calculated by taking an unlevered beta (14) value of 0,39 for the bus service and transport sector (15). That beta value was subsequently adjusted relative to the financial structure reported by the company for each year:

(35)

From 1987 to 1994 the Italian corporate tax rate was 36 %, from 1995 to 2000 it was 37 %, and from 2001 to 2002 it was 36 %.

(36)

According to the experts, the remuneration of capital employed provides the compensation that Simet should receive after tax. As the compensation will be taxable, it has to be adjusted as follows:

(37)

On the basis of these formulae, the experts calculate that the remuneration due on the capital employed by Simet is EUR 5 948 150.

(38)

Thus, the total amount of compensation calculated by the experts before the application of late payment interest is EUR 8 245 124 (compensation related to the operating loss and remuneration of the capital employed).

(39)

Given that the compensation sums calculated above were not paid in the years for which they were due, the experts revised those sums upwards as follows:

(40)

Thus, the expert panel arrived at a total compensation of EUR 22 049 796.

(41)

The majority report takes the view that the compensation awarded by the Council of State does not concern a direct application of Regulation (EEC) No 1191/69, that is a direct award – albeit retroactively – of compensation under that Regulation. Instead, it considers that the Council of State proposed the application of the criteria laid down in that Regulation on the common methods of compensation to ascertain the damage incurred by Simet as a result of the unlawful extension of its public service obligations over time.

(42)

The majority report further notes that in cases where the Commission considered that Regulation (EEC) No 1191/69 did not apply for the purpose of assessing public service compensation, it often approved such compensation by applying by analogy the Community framework for state aid in the form of public service obligations. The main criterion for the Commission was that the amount of compensation did not exceed what was necessary to cover the costs incurred in discharging those obligations. As regards the risk of over-compensation in the present case, the majority report takes the view that since the exercise performed relates to the ex post calculation of the costs actually incurred in the past by the company to provide the required scheduled bus services, its calculations are free from the uncertainty inherent in any prognostic assessment when compensation is determined ex ante. Consequently, there is no issue of over-compensation.

(43)

The majority report touches upon the issue of the absence of account separation. It takes the view that separate accounting is applied to those undertakings receiving compensation for the provision of a public service in order to prevent the misuse of such funds for the company’s other activities. However, since in the case at hand no public resources have thus far been transferred to Simet as compensation for the provision of a public service, the requirement of account separation should not be considered a reason for refusing payment of the compensation awarded by the Council of State.

(44)

The majority report also notes that for the years 2002 and 2003, when analytical accounting was available, the actual operating loss was largely the same as the losses arrived at on the basis of the methodology used for previous years according to which costs were allocated to inter-regional scheduled bus services on the basis of the percentage of revenue generated by those same services (the figures differed by just 2,6 %). Therefore, the experts take the view that the unavailability of analytical accounts for the preceding period should not have any practical significance for awarding compensation.

(45)

As explained in the opening decision, the Commission had several doubts regarding the compatibility of the notified measure with the internal market.

(46)

First, the Commission had doubts regarding the classification of the notified measure as a non-aid measure. In particular, the Commission questioned whether the four conditions laid down by the European Court of Justice in its Altmark judgment (16) had been fulfilled.

(47)

Second, the Commission raised the question as to the applicable legal framework. As the compensation ordered by the Council of State related to public service obligations allegedly imposed on Simet for the years 1987 to 2003, but not yet paid, the question arose whether Regulation (EEC) No 1191/69 or Regulation (EC) No 1370/2007 was applicable in the present case.

(48)

The Commission considered that Regulation (EEC) No 1191/69 would be applicable in the present case if it could be shown that a public service obligation had in fact been unilaterally imposed on Simet by the Italian authorities and that the compensation proposed complied with all the requirements of that Regulation. That is because, under Article 17(2) of Regulation (EEC) No 1191/69, compensation for public service obligations imposed unilaterally on an undertaking which is paid pursuant to the rules of that Regulation is dispensed from prior notification to the Commission. If, however, neither of these two conditions was shown to have been satisfied, the compatibility of the notified measure would need to be assessed under Regulation (EC) No 1370/2007.

(49)

Third, assuming that the compensation ordered by the Council of State had in fact resulted from the unilateral imposition of public service obligations, the Commission nevertheless had doubts, based on the information available to it, that the compensation complied with the requirements of Regulation (EEC) No 1191/69. The Commission also doubted the appropriateness of applying the common compensation procedure laid down in Regulation (EEC) No 1191/69, applicable to unilaterally imposed public service obligations, for the years after 1992, since, as of July 1992, inter-regional bus services could not have been subject to unilaterally imposed public service obligations (17).

(50)

Fourth, if further investigation confirmed that at least one of the conditions for exemption from notification pursuant to Regulation (EEC) No 1191/69 was not met and an assessment under Regulation (EC) No 1370/2007 had to be conducted, the Commission had doubts whether the conditions of that Regulation were complied with in the present case.

(51)

In any event, regardless of the legal basis applied, the Commission had doubts whether the compensation ordered by the Council of State excluded the possibility of overcompensation. The Commission noted the absence of a proper account separation by Simet until at least 2000 (18), and questioned the possibility of precisely establishing ex post the costs related to scheduled bus services. It also questioned the appropriateness of the required return on equity used in the calculations for the compensation.

(52)

In their submissions, the Italian authorities considered that the notified measure constituted state aid within the meaning of Article 107(1) of the Treaty, specifically because it did not satisfy all the conditions laid down by the European Court of Justice in its Altmark judgment. The Italian authorities also considered that the compensation awarded by the Council of State neither complied with Regulation (EEC) No 1191/69 nor with Regulation (EC) No 1370/2007.

(53)

The Italian authorities stressed that neither a unilateral nor a contractual imposition of public service obligations existed for inter-regional bus services during the period under review. The legal instruments governing the relationship between the public authority and private companies operating passenger transport services were unilateral concessions on the basis of which the public authority transferred to a private body its own legal right to carry out transport services for undifferentiated customers, originally assigned to the State under Law 1822/39.

(54)

The Italian authorities further recalled that the concession specifications issued by the Ministry at the request of the company clearly stated that the service was operated entirely at the operating company’s own risk, except for the guarantee of exclusive rights which existed during the period under review. Operating the service gave rise to no right to receive any kind of subsidy or compensation. Such concessions were of a temporary nature and renewed each year at the company’s request. The licences were subject to various changes from one year to the next with regard to routes, stopping points, numbers of departures, etc., in light of specific requests made by the companies.

(55)

Regarding the cap on fares described in the opening decision and existing until 2001, the Italian authorities noted that this cap applied throughout Italy and not just in one specific geographical location. They also noted that, according to Article 2(5) of Regulation (EEC) No 1191/69, this was a measure of price policy, but did not constitute a tariff obligation subject to mandatory compensation within the meaning of that Regulation.

(56)

Furthermore, according to the Italian authorities, as of July 1992 (19), unilateral public service impositions for inter-regional bus services were not even allowed under Regulation (EEC) No 1191/69. Article 1(5) of that Regulation allows unilateral impositions only for urban, suburban and regional services.

(57)

In any event, the Italian authorities noted that Simet never applied for the termination of public service obligations as required by Article 4 of Regulation (EEC) No 1191/69, which it considers a prerequisite for maintaining that the obligations in question existed. Simet’s 1999 request addressed to the Ministry (20) was a generic request for compensation for public service obligations allegedly imposed by the concessions issued from 1987 onwards. The Italian authorities pointed out that that request did not indicate which public service obligations were to be terminated to ensure appropriate profitability of the inter-regional scheduled bus services.

(58)

Consequently, the Italian authorities concluded that Simet had not shown that it took responsibility for public service obligations (as defined in Article 2(2) of Regulation (EEC) No 1191/69) and had, in particular, not shown to which specific and precise obligations to operate or to carry, and to which fare obligations, it had been subject. According to Italy, Simet had demonstrated only that it carried out various universal transport services on the basis of state concessions granted by the responsible authorities, issued at the company’s request. The entrusting of universal transport services to Simet did not in itself show that Simet took on any public service obligation within the meaning of Regulation (EEC) No 1191/69.

(59)

The Italian authorities further noted that, for the largest part of the period under review (1987-2001), Simet did not implement proper accounting separation as required by Article 1(5) of Regulation (EEC) No 1191/69 (21). It was therefore not possible to calculate the additional net costs resulting from the fulfilment of the public service obligations, which meant that the conditions as laid down in Article 10 of Regulation (EEC) No 1191/69 were not met.

(60)

Finally, the Italian authorities pointed out that the Ministry did not establish any compensation amounts in advance, as required by Article 13 of Regulation (EEC) No 1191/69, since it did not impose any public service obligations on Simet. In the present case, the compensation owed to Simet had been exclusively calculated on the basis of an ex post assessment.

(61)

The Italian authorities considered that an assessment under Regulation (EC) No 1370/2007 raised largely the same issues as an assessment under Regulation (EEC) No 1191/69 (including absence of a clearly defined public service obligations, absence of the objective compensation parameters decided in advance, absence of account separation, etc.) With regard to the concept of ‘reasonable profit’, as set out in the Annex to Regulation (EC) No 1370/2007, the Italian authorities considered the rate of return proposed by Simet in the initial report to be inflated for a situation where compensation was determined ex post and eliminated the risk of unforeseen costs/losses.

(62)

The Italian authorities fully endorsed the findings of the minority report, which concluded that the amount of the compensation could not be calculated. At the same time, they considered that the majority report contained certain material and methodological errors. For example, the Italian authorities doubted the appropriateness of the assumption-based method used in that report for estimating the net operating costs of the alleged public service obligations. They also contested the fact that that report:

(63)

The only third party to submit observations in response to the opening decision was Simet, the potential beneficiary of the notified measure. In its submissions, Simet disagreed with the preliminary positions taken by the Commission in the opening decision.

(64)

To substantiate its claim that obligations were imposed on it, Simet submitted the concessions awarded to it for the routes covered by the court proceedings. According to Simet, the requirements stipulated in those concessions included, inter alia, the fares, stability of the itinerary, stops, frequency and timing of the service. They also included the conditions regulating the transportation of passengers’ luggage, and the free carriage of ordinary letters for the postal service and of other mail against payment of the fee laid down by the provisions governing such carriage. Those concessions also required the company to report all interruptions, accidents and changes to the service and contained obligations to issue tickets for the transportation of passengers, luggage and agricultural packages and to keep the relevant records for five years. Also, Simet had to obtain prior authorisation from the Ministry’s Provincial Motor Vehicle Offices concerning the type and characteristics of buses to be used for services covered by concessions as well as for providing other services.

(65)

Simet also submitted what it claimed were full or partial refusals of the Ministry to grant changes to the details of the services provided by it. For the period under review, Simet submitted (partial) refusals with respect to (22):

(66)

Simet considers that these refusals demonstrate the unilateral nature of the imposition of public service obligations by the Italian authorities. Simet further claims that the authorities did not allow for the ‘optimisation’ of transport links through expansion and diversification of supply. Transport links have in fact been ‘frozen’ and, therefore, remained tied to ministerial decisions, although formally classified as ‘business activity’.

(67)

Simet disagrees with the claim in recital 16 of the opening decision that the fares proposed by the company were reflected in the annual concession specifications. Initially, the fares for long-distance routes had to be similar to those for second-class rail travel. This is supported by the ministerial memo of 19 December 1988 (D.C. III Div 32 No 3846), which states ‘whereas many companies with concessions for public bus services have petitioned for fare increases; whereas no general directives on fares have been issued recently; pending new directives […] [regional offices] may directly authorise concession holders to implement for the services they operate an increase in the fares to align them on the level of prices of the State railway company, Ferrovie dello Stato (FS), for second-class rail travel, plus the ‘express’ supplement if the services use the motorways [as in the case in question]; … obviously there should not be any fare increase in cases where the fare level referred to above is already applied.’ According to Simet, these steps demonstrate that it was not allowed to set fares that were higher than the fare for second-class rail travel (i.e. the lowest fare charged by Ferrovie dello Stato). As a result, the company was prevented from obtaining more revenue from its operations due to the State’s interest in satisfying essentially public needs and purposes.

(68)

The Ministry’s circular No A/7302 of 3 July 1992 stipulated that for that year the fare should be increased by 6,1 % for bus lines under state responsibility. According to Simet, this circular, by which the Ministry authorised fare increases merely to align them with ISTAT figures, confirms that it was impossible for the company to charge the fares it thought appropriate on its own initiative. Simet further notes that the Ministry’s circular No 3/02 of 5 April 2002, which lays down how the fares should be converted from lire to euros, states (in point (2) that the fares in question are ‘regulated fares and prices’.

(69)

Finally, the concessions issued by the Ministry state that the fare is ‘laid down’(stabilita), i.e. decisively fixed by the administration. Not being a simple ‘authorisation’ but a ‘concession’, the corresponding specifications expressly state that the provision of services is ‘governed by the clauses laid down, and those which may be subsequently laid down’ and that ‘the administration may withdraw the concession at any time and the operator may make no claim of any kind’. Point 6 of each of the concession specifications states clearly that the timetables and the fares are to be those approved by the Provincial Motor Vehicle Office of the Ministry. Simet argues that since fixed fares preclude any flexibility in the services that can be offered to users, it was not allowed to react to the demands of the market or its own needs as it saw fit.

(70)

By being obliged to charge the fares imposed upon it, Simet claims it was prevented from implementing pricing policies that would usually be practised by an undertaking in a modern, free and competitive market. On the one hand, Simet stresses that the level of the fares imposed by the Ministry (equivalence to the second-class rail fares charged by Ferrovie dello Stato) were so low that the company was unable to cover the costs of operating the bus services. On the other hand, these measures have enabled the state to provide unjustified support to its rail company, Ferrovie dello Stato, since concession holders of inter-regional bus service such as Simet were prevented from applying fares lower than the fares charged by that company for a second-class ticket with express train supplement. Ferrovie dello Stato was further favoured by the fact that subsidies were refused to Simet and other companies providing similar services.

(71)

In light of the above, Simet considers that the concessions issued by the Ministry and subsequent decisions rejecting the requests for changes to the routes show that those concessions fulfil the criteria of a service contract within the meaning of Article 14 of Regulation (EEC) No 1191/69 in providing for obligations with respect to routes, stops, fares, free carriage of ordinary letters for the postal services and of other mail against payment of the fee laid down by the provisions governing such carriage.

(72)

Even assuming Regulation (EEC) No 1191/69 did not provide for any right to compensation for holders of inter-regional concessions, as argued by the Ministry, Simet contends that this would mean that the service had been liberalised and, as such, the administration could not impose any obligations, in particular those concerning fares, on the undertaking. Simet therefore considers that the Ministry acted in breach of the law and that under national law (i.e. Article 35 of Legislative Decree No 80/1998 applied by the Council of State) compensation for damages is due.

(73)

For Simet, what is at stake is not a case of the type governed by Regulation (EEC) No 1191/69, but a dispute over damages. Simet notes that judgment 1405/2010 recognised Simet’s entitlement to damages under Article 35 of Legislative Decree No 80/1998 to compensate for the harm caused by the Ministry’s unlawful decisions refusing to abolish the public service obligations imposed on Simet. Those decisions, which breached the right to freedom of enterprise anchored in Article 41 of the Italian Constitution, since they caused material loss to the company in the running of its business activity, therefore had to be deemed unlawful and, as such, entitled the company to repayment of the losses suffered. The Council of State recognised that the Ministry had caused unjustified injury to Simet by obliging it to perform public service obligations in breach of its right to provide a transport service freely and independently.

(74)

If, however, it is assumed that Regulation (EEC) No 1191/69, as amended, allowed the administration to impose public service obligations to meet the needs of the region, Simet considers that the Ministry was obliged to provide for payment to compensate such obligations. According to Simet, Regulation (EEC) No 1191/69 allows service obligations to be imposed to ‘meet the transport needs of a region’ and not ‘in a region’ (Article 1(2)).

(75)

In their comments on the third party comments, the Italian authorities reiterated their position that no public service obligations within the meaning of Regulation (EEC) No 1191/69 or Regulation (EC) No 1370/2007 existed and that no compensation was due.

(76)

To substantiate their position, the Italian authorities further explained the system which governed the operation of scheduled passenger transport services by bus under Law No 1822/39 (23) (law applicable during the period under consideration). According to this law, the regulatory framework for scheduled services under state responsibility (also known as ‘ordinary scheduled bus services’) was as follows:

(77)

Consequently, whenever undertakings lodged applications for a change to an existing service or for an award of a concession for new services, the Ministry had to base its decision on that legal framework.

(78)

Concerning full or partial refusals by the Ministry to grant the changes requested by Simet with respect to the services provided, the Italian authorities noted that these were solely related to the system as governed by Law 1822/39. The Ministry could not agree to grant new concessions to provide new services or to extend the scope of existing concessions (by accepting new stops) in cases where this would have impinged on the rights of other scheduled service operators, as defined in that Law. At the same time, the Ministry accepted the changes which did not contradict the principles laid down in Law 1822/39 (25).

(79)

While acknowledging that Simet was refused authorisation to provide new services or to add additional stops to the existing services on a number of occasions, the Italian authorities contend that Simet’s submissions and annexed documents fail to provide evidence of formal requests to change the details of the services provided as laid down in existing concession specifications, followed by refusals. In any event, the Ministry never rejected Simet’s requests for the removal of stops in sparsely populated areas or for changes to the timetables.

(80)

Concerning the clauses of the concession specifications on the transportation of postal items, the Italian authorities claim that Simet did not furnish any evidence documenting the services actually provided and the net cost involved. The Italian authorities further noted that Simet produced no documentary evidence that the Ministry rejected its applications for fare changes. Furthermore, Simet never asked for authorisation to reduce fares.

(81)

As regards the memo of the Ministry of Transport of 19 December 1988 (D.C. III Div 32 No 3846) and the subsequent ministerial circular No A/66 of 10 January 1989 (issued by the Ministry’s Provincial Motor Vehicle Office of Catanzaro), according to the Italian authorities these documents allowed scheduled service providers to align their fares with the fares of Ferrovie dello Stato and had to be viewed as part of a wider national transport policy and a wider pricing policy. The same should be said of the letter from the Provincial Office of Catanzaro No 7302 of 3 July 1992 (also referred to by Simet) aimed at enabling scheduled bus service operators to raise fares by up to 6,1 % in line with inflation, implementing circular No 801/92 (26). That letter also points out that undertakings could operate under a different fare scheme, provided they submitted a specific application. The Italian authorities note that no such application was ever submitted by Simet. In any event, neither the ministerial memo of 1988 nor the Ministry’s 1992 letter constituted a rejection of any application from Simet for termination of a public service obligation relating to fares.

(82)

The Italian authorities also disagree with Simet’s contention that point 2 of circular No 3/02 of 5 April 2002 proves that the fares for the scheduled service were set by the Ministry. That circular merely provided instructions for converting fares in lire to euros. The fact that long-distance scheduled transport fares were referred to as being ‘regulated’ fares does not mean that they were not set by the operators. Rather, this meant that those were fares which were set in advance in the interests of transparency and publicity for passengers and subsequently authorised by the competent ministerial services. Since the service is a scheduled universal service, the details of the services provided, such as routes, bus stops, timetables and fares, must be known in advance, in contrast to occasional services. According to the Italian authorities, the same principle exists at Union level for regular services, which are governed by Regulation (EC) No 1073/2009 of the European Parliament and of the Council (27), according to which fares are an integral part of the authorisations for regular services (Article 6(2) of that Regulation). In light of these advance scheduling requirements, the Italian authorities also contest Simet’s interpretation of point No 6 of the concession specifications (28), as both Simet’s application and the Ministry’s concession specification referred to pre-set timetables and fares for the scheduled services.

(83)

As regards the amount of compensation demanded, Simet claimed only ‘compensation ... within the limits of the amounts proven to be due’. According to the Italian authorities, the cost calculations produced over time by Simet are generic, as they cover its entire business activity, and also objectively incorrect and not based on reliable data, given the absence of account separation for the majority of the period under review.

(84)

The Italian authorities consider it entirely irrelevant whether the case in question concerns the award of public service compensation (hence, the direct application of Regulation (EEC) No 1191/69) or the award of damages. Even supposing that the Council of State meant to recognise Simet’s entitlement to damages, which according to the Italian authorities is neither a foregone nor an obvious conclusion based on a reading of judgment 1405/2010 (29), any damage incurred could only arise from the operation of public service obligations. The Italian authorities insist that no such obligations have ever been imposed on Simet.

(85)

Finally, the Italian authorities disagree that compensatory damages are required by Article 41 of the Italian Constitution. The transport of passengers by means of scheduled inter-regional services cannot be considered to have been completely liberalised by a simple and direct application of Article 41 of the Italian Constitution, being first subject to a concession system (regulated by Law No 1822/39 and Presidential Decree 369/94) and subsequently to an authorisation system (regulated by Legislative Decree 285/05).

(86)

Under Article 107(1) of the Treaty, ‘any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the provision of certain goods shall, in so far as it affects trade between Member States, be incompatible with the internal market’.

(87)

For a support measure to be considered state aid within the meaning of Article 107(1), it must fulfil all of the following conditions:

(88)

The Commission will examine whether each of these conditions has been fulfilled in the present case.

(89)

The Commission observes that the judgments of the Council of State require the Ministry to pay compensation to Simet for the provision of inter-regional bus transport services from 1987 to 2003 on routes under state responsibility. The resources from which this compensation would be paid are those available to the Ministry and thus constitute state resources. The decision to pay that compensation, which has been taken by the court, is imputable to the state.

(90)

The Commission notes first and foremost that Simet is engaged in an economic activity, namely passenger transportation against remuneration. Therefore, Simet should be considered an ‘undertaking’ within the meaning of Article 107(1) of the Treaty.

(91)

The granting of the measure should also be considered selective, since it benefits only Simet.

(92)

As regards the granting of an economic advantage, it follows from the Altmark judgment that compensation granted by the state or through state resources to undertakings in consideration for public service obligations imposed on them does not confer such an advantage on the undertakings concerned, and hence does not constitute aid within the meaning of Article 107(1), provided the following four conditions are met (30):

(93)

As regards the second condition, the parameters that serve as the basis for calculating compensation must be established in advance in an objective and transparent manner in order to ensure that they do not confer an economic advantage that could favour the recipient undertaking over competing undertakings. However, the need to establish the compensation parameters in advance does not mean that the compensation has to be calculated on the basis of a specific formula. Rather, what matters is that it is clear from the outset how the compensation is to be determined.

(94)

In the present case, Simet has not provided any evidence to show that the compensation parameters for the provision of the services in question over the period under consideration were ever established in advance in an objective and transparent manner. Rather, the concessions specifications upon which Simet relies to demonstrate that a public service obligation was imposed upon it state that the operation of the services does not give the company any right to a subsidy or compensation of any kind and that the service is operated entirely at the company’s own risk. It is for this reason that judgment 1405/2010 of the Council of State ordered that that compensation be calculated on the basis of reliable data from the company’s accounts. Any such calculations, in the absence of compensation parameters established in advance, are necessarily based solely on ex post estimates of the net costs involved in the provision of the inter-regional scheduled bus services in question, such as the calculations contained in the initial report and the majority report. The second Altmark condition has therefore not been met in the present case.

(95)

In order to exclude the presence of an economic advantage where compensation is granted to undertakings in consideration for public service obligations imposed on them, the Altmark judgment requires that all four conditions be satisfied, and there is consequently no reason for the Commission to examine whether the other three conditions have been met in the present case. Accordingly, the payment of compensation to Simet for the provision of inter-regional bus transport services for the period 1987-2003 does confer on that undertaking a selective economic advantage.

(96)

As regards these two criteria, it is necessary to verify whether the notified measure is likely to distort competition to the extent that it affects trade between Member States.

(97)

As reflected in the Altmark judgment (31), since 1995 several Member States have opened certain transport markets to competition from undertakings established in other Member States, so that a number of undertakings are already offering their urban, suburban or regional transport services in Member States other than their state of origin. This tendency is even more pronounced for inter-regional scheduled transport services such as those provided by Simet. Accordingly, any compensation granted to Simet should be considered liable to distort competition for the provision of inter-regional bus transportation services and liable to affect trade between Member States to the extent that it negatively impacts on the ability of transport undertakings established in other Member States to offer their services in Italy and strengthens the market position of Simet.

(98)

The Commission also notes that Simet is active in other markets, such as international travel services, tourism services and bus rental services, and thus clearly competes with other companies within the Union in those markets. Any compensation granted to Simet would necessarily also distort competition and affect trade between Member States on those markets as well.

(99)

Accordingly, the Commission takes the view that the notified measure is liable to distort competition and affect trade between Member States.

(100)

In light of the above, the Commission finds that the notified measure constitutes state aid within the meaning of Article 107(1) of the Treaty.

(101)

According to the reasoning of the Council of State, Simet acquired the right to obtain compensation for the provision of the transport services in question at the point in time at which it carried out those services. For this reasoning to hold, the compensation payments would have to have been exempted from the compulsory notification procedure pursuant to Article 17(2) of Regulation (EEC) No 1191/69: otherwise failure to notify that compensation would have rendered it illegal, as it would have been contrary to the state aid provisions of the Treaty.

(102)

This is because, under Article 17(2) of that Regulation (EEC) No 1191/69, compensation paid pursuant to the Regulation is exempted from the preliminary information procedure laid down in Article 108(3) of the Treaty and thus from prior notification. It follows from the Combus judgment that the concept of ‘public service compensation’ within the meaning of that provision must be interpreted in a very narrow manner (32). The exemption from notification provided by Article 17(2) covers only compensation for public service obligations imposed unilaterally on an undertaking, pursuant to Article 2 of that Regulation, which are calculated using the method described in Articles 10 to 13 of that Regulation (the common compensation procedure), and not to public service contracts as defined by Article 14. Compensation paid pursuant to a public service contract as defined by Article 14 of Regulation (EEC) No 1191/69 which constitutes state aid must be notified to the Commission before it is put into effect. Failure to do so will result in that compensation being deemed illegally implemented aid.

(103)

The question of whether Article 17(2) indeed dispensed the Italian authorities from prior notification in the present case therefore depends, first, on whether a public service obligation was in fact unilaterally imposed on Simet by the Italian authorities and, second, on whether the compensation paid pursuant to that obligation complies with Regulation (EEC) No 1191/69. The Commission will examine both questions in turn.

(104)

According to Simet (33), the unilateral imposition of a public service obligation upon it can be inferred from the specifications regarding the details of the services to be provided as laid down in the concession specifications issued for each separate inter-regional scheduled bus route, the imposition of fares by the Ministry and the ministerial refusals to accept changes to existing services or to issue new service concessions.

(105)

However, on the basis of the information it has received, the Commission finds that Simet has not convincingly shown that the Italian authorities unilaterally imposed a public service obligation upon it.

(106)

First, Simet’s initiative in requesting the renewal of concession specifications for all sixteen years during the period under review cannot be reconciled with the unilateral imposition of a public service obligation. The purpose of those specifications was to provide Simet with the exclusive right to provide the relevant services for the period under review. Despite the fact that each of those specifications stipulated that the operation of the service was not subject to compensation and that the service was operated entirely at the company’s own risk, Simet repeatedly requested the prolongation of those rights.

(107)

Second, the fact that these specifications stipulated the fares, the routes and the frequency and timing of the services does not necessarily mean that unilateral public service obligations were imposed on Simet as a result of the concessions. Rather, considering that the services provided were regular scheduled services, it was necessary for the concession specifications, which granted Simet an exclusive right to provide those services, to stipulate in advance the details of the services to be provided. No evidence has been provided of formal requests to change those details followed by refusals by the Ministry. Nor has Simet provided evidence to show that these details were unilaterally imposed by the Italian authorities on Simet, rather than proposed by that operator, in return for the right to provide services on an exclusive basis, and subsequently authorised by the Ministry.

(108)

Third, as regards the alleged obligation to transport postal items, Simet has failed to provide any evidence setting out the services actually provided and the net cost involved. Nor has Simet provided evidence that it ever contested the clauses of the concession specifications concerning the transportation of postal items. This could either mean that the provision of those services did not go against the commercial interests of the company or that it considered the provision of those services as a fair remuneration for the right to operate the inter-regional transport services on an exclusive basis.

(109)

Fourth, as regards the fares that Simet could charge to passengers for the services it provided, while the Italian authorities acknowledge that until 2001 there were indeed national provisions setting broad principles for the pricing of bus transport services pricing as part of a wider national transport policy and a wider pricing policy (34), operators could submit a specific application to apply a different fare. This is clearly explained in the ministerial letter that Simet refers to (35). The Commission notes, however, that Simet has provided no evidence that it ever submitted such an application to the Italian authorities, nor that any applications for fare changes during the period 1987-2003 were ever rejected by the Ministry.

(110)

Contrary to Simet’s contention, the fact that long-distance scheduled transport fares were ‘approved’ by the Provincial Motor Vehicle Office of the Ministry (36) and the reference to ‘regulated’ fares in circular No 3/02 of 5 April 2002 (37) do not mean that those fares were not initially set by the operators. Rather, the use of these terms only means that the fares were set in advance in the interests of transparency and publicity for passengers and subsequently authorised by the competent ministerial services.

(111)

In any event, such measures do not constitute a ‘tariff obligation’ within the meaning of Article 2(5) of Regulation (EEC) No 1191/69 which would have been subject to the common compensation procedure. The latter is limited to ‘any obligation imposed upon transport undertakings to apply, in particular for certain categories of passenger, for certain categories of goods, or on certain routes, rates fixed or approved by any public authority which are contrary to the commercial interests of the undertaking and which result from the imposition of, or refusal to modify, special tariff provisions’. The definition of tariff obligations ‘shall not apply to obligations arising from general measures of price policy applying to the economy as a whole or to measures taken with respect to transport rates and conditions in general with a view to the organisation of the transport market or of part thereof’.

(112)

Finally, as regards the ministerial refusals submitted by Simet, the Commission observes that these were requests for expansion and did not concern changes in the manner of provision of existing services. An expansion of services was not always possible, because of the way in which the operation of scheduled passenger transport services is regulated under Law No 1822/39. Concessions to provide new services or to extend the scope of existing services could be granted only to the extent they did not impinge on the rights of other scheduled services operators, so that the refusals to start new services or extend existing services were the result of a balancing of interests of different economic operators, rather than the consequence of imposing public service obligations as alleged by Simet.

(113)

Consequently, Simet has not shown that the Italian authorities unilaterally imposed a public service obligation upon it.

(114)

In any event, even if a unilateral imposition of public service obligations were shown to exist in some form, the compensation for those services, in order to be exempted from prior notification under Article 17(2) of that Regulation, would still need to comply with the common compensation procedure (Section IV) of Regulation (EEC) No 1191/69. The Commission does not consider this to be the case.

(115)

First, the Commission notes that Article 10 of Regulation (EEC) No 1191/69 provides, inter alia, that the amount of the compensation must, in the case of an obligation to operate or to carry, be equal to the difference between the reduction in financial burden and the reduction in revenue of the undertaking if the whole or the relevant part of the obligation in question were terminated for the period of time under consideration. The Commission further notes that, according to the Court of Justice in the Antrop judgment, the requirement set out in that provision is not fulfilled where ‘it is not possible to ascertain on the basis of reliable data [from the company’s accounts] the difference between the costs imputable to the parts of [its] activities in the areas covered by the respective concessions and the corresponding income and consequently it is not possible to calculate the additional cost deriving from the performance of public service obligations by [that undertaking]’ (38).

(116)

Moreover, as of 1 July 1992, Regulation (EEC) No 1191/69, by virtue of Article 1(5)(a) thereof, requires transport undertakings which operate not only services subject to public service obligations but also engage in other activities to operate the public services as separate divisions, whereby: (i) the operating accounts corresponding to each of those activities are separate and the proportion of the assets pertaining to each is used in accordance with the accounting rules in force, and (ii) expenditure is balanced by operating revenue and payments from public authorities, without any possibility of transfer from or to another sector of the undertaking’s activity.

(117)

In the present case, Simet failed to implement a proper account separation for the different services provided by it until 2002 and the robustness of the cost accounts as regards account separation for the years 2002 and 2003 can be called into question since there is no evidence that those cost accounts were used by the company’s governance bodies to exercise control over its operations. Article 10 has therefore not been complied with.

(118)

Second, Simet has not demonstrated that ‘economic disadvantages … were determined taking into account the effects of the obligation on the undertaking’s activities as a whole’ (Article 5(1) of Regulation (EEC) No 1191/69), nor was the requirement to fix the amount of compensation in advance (Article 13 of the Regulation) fulfilled, as explained in section 7.1.2.

(119)

Finally, the compensation period of the notified measure covers 1987 to 2003. However, the common compensation procedure applied to inter-regional bus services only until July 1992 and was subsequently restricted to ‘urban, suburban, or regional passenger transport services’ by Council Regulation (EEC) No 1893/91 (39). The definition of ‘regional services’ provided in Regulation (EEC) No 1191/69 (‘transport services operated to meet the transport needs of a region’) cannot be extended to cover all transport services serving the needs of the population of a region and therefore also to cover inter-regional routes. This is because such a wide interpretation would have rendered the Regulation largely ineffective, as Member States were in any event allowed to exclude its application to undertakings whose activities were confined exclusively to the ‘operation of urban, suburban or regional services’ (40).

(120)

The Commission therefore finds that the notified compensation does not comply with the common compensation procedure laid down in Regulation (EEC) No 1191/69.

(121)

In light of the above, the Commission concludes that the compensation the Council of State considers due to Simet for the provision of inter-regional bus transport services in the period 1987-2003 was not exempted from compulsory prior notification on the basis of Article 17(2) of Regulation (EEC) No 1191/69.

(122)

Since it has not been shown that the compensation payments were exempted from prior notification pursuant to Article 17(2) of Regulation (EEC) No 1191/69, the compatibility of those payments with the internal market will need to be examined, as they constitute state aid within the meaning of Article 107(1) TFEU, as explained in section 7.1 above.

(123)

The Commission considers that the examination of the compatibility of the notified measure should be conducted under Regulation (EC) No 1370/2007, which entered into force on 3 December 2009 and repealed Regulation (EEC) No 1191/69, since that is the legislation in force at the time the present decision is being adopted (41). It notes in this respect that the compensation awarded to Simet by the Council of State has not yet been paid, so that the date on which the effects of the planned aid would occur is the same as that on which the Commission adopts the decision ruling on the compatibility of the aid with the internal market (42). Moreover, it is questionable that an entitlement to that compensation was irrevocably granted to Simet prior to judgment 1405/2010, delivered by the Council of State on 9 March 2010, which effectively obliges the Italian State to make those payments to that undertaking. As explained in (94) above, the concession specifications upon which Simet relies to demonstrate that a public service obligation was imposed upon it stipulate that the operation of the services does not give the company any right to a subsidy or compensation of any kind and that the provision of those services was operated entirely at the company’s own risk. Finally, it should be stressed that the amount of the compensation to be paid to Simet has not yet been decided by the Council of State.

(124)

Regulation (EC) No 1370/2007 governs the award of public service contracts, as defined in Article 2(i) thereof, in the field of public passenger transport by road and by rail. Under to Article 9(1) of that Regulation, ‘public service compensation for the operation of public passenger transport services … paid in accordance with this Regulation shall be compatible with the [internal] market. Such compensation shall be exempt from the prior notification requirement laid down in Article [108(3)] of the Treaty.’

(125)

For the reasons set out below, the Commission considers that the notified compensation does not comply with the conditions of Regulation (EC) No 1370/2007, and so it cannot be declared compatible with the internal market on the basis of Article 9(1) of that Regulation.

(126)

In particular, the Commission notes that even if the concession specifications met the requirements under Article 2(i) of Regulation (EC) No 1370/07 for the definition of a public service contract, not all the provisions of Article 4 of that Regulation, which establishes the mandatory content of public service contracts and general rules, have been complied with. For instance, Article 4(1)(b) requires that the parameters on the basis of which the compensation is calculated be established in advance in an objective and transparent manner in a way that prevents overcompensation, while Article 4(1)(c) and Article 4(2) lay down the arrangements with regard to the allocation of costs and revenues. As explained in relation to the Commission’s examination of the second criterion of the Altmark judgment in section 7.1.2, the concession specifications at issue stipulated that the operation of the services does not give Simet any right to a subsidy or compensation of any kind and that the service is operated entirely at the company’s own risk. Such an exclusion of compensation necessarily entails that the compensation parameters have not been established in advance, so that Article 4 of the Regulation has not been complied with.

(127)

Furthermore, Article 6(1) provides that in the case of directly awarded public service contracts, compensation must comply with the provisions of Regulation (EC) No 1370/2007 and with the provisions laid down in the Annex to ensure that the compensation does not go beyond what is necessary to carry out the public service obligation. That Annex requires, inter alia, a separation of accounts (point (5) and specifies how the maximum amount of compensation should be determined.

(128)

As noted in recital 115 above, for most of the notified period (between 1987 and 2001), Simet did not apply a proper account separation, while the robustness of the analytical accounts for 2002 and 2003 can also be questioned. Consequently, it is impossible to demonstrate that whatever compensation is ultimately awarded does not exceed an amount corresponding to the net financial effect equivalent to the total of the effects, positive or negative, of compliance with the public service obligation on the costs and revenue of the public service operator (point 2 of the Annex).

(129)

Moreover, in the absence of compensation parameters laid down in advance, any cost allocation must necessarily be conducted ex post on the basis of arbitrary assumptions, as was done in both the initial report and the majority report. The Commission cannot accept, however, the assumptions made in the majority report that each service provided by the company should necessarily represent the same proportion of revenues and costs in a given year. Moreover, since an ex post calculation will necessarily result in full compensation of the costs incurred in the provision of the service, the Commission considers that a rate of return on equity exceeding the relevant swap rate plus 100 basis points, as employed in both the initial report and the majority report, would normally not be viewed as a suitable reference for calculating the reasonable profit.

(130)

Accordingly, the Commission considers that the compensation ordered by the Council of State, which is not provided for in the concession specifications, would not be paid in accordance with the provisions of Regulation (EC) No 1370/2007, and therefore that the notified measure is incompatible with the internal market.

(131)

Finally, as regards Simet’s claim that judgment 1405/2010 of the Council of State does not concern an award of public service compensation based on the applicable Council Regulation, but represents an award of damages related to a breach of Regulation (EEC) No 1191/69 which stems from the alleged illegal unilateral imposition of public service obligations under Articles 1(3) and 1(5) of that Regulation, the Commission notes that while no reference to Regulation (EEC) No 1191/69 appears in the operative part of judgment 1405/2010, that judgment does refer to Simet’s right to receive amounts by way of compensation pursuant to Articles 6, 10 and 11 of Regulation (EEC) No 1191/69, which must be determined by the administration on the basis of reliable data (43). Furthermore, in judgment 1405/2010, the Council of State itself dismissed Simet’s claim for damages, which it understood to cover the residual losses not covered by the compensation to be awarded, and its claim for unjust enrichment, since the main claim for compensation on the basis of Regulation (EEC) No 1191/69 had been accepted (44). Thus, in point 3.3 of the judgment the Council of State states that: ‘No claims for damages put forward by the appellant can be accepted at present, because only when the administration has determined the amount referred to above will it be known whether there is residual damage not covered by the amount assessed, which must be calculated and demonstrated by the company concerned.’

(132)

In any event, the Commission considers that an award of damages in favour of Simet for the alleged illegal unilateral imposition of public service obligations by the Italian authorities, calculated on the basis of the common compensation procedure laid down by Regulation (EEC) No 1191/69, would contravene Articles 107 and 108 of the Treaty. This is because such an award would produce the exact same result for Simet as an award of public service compensation for the period under review, despite the fact that the concession specifications governing the services in question were neither exempt from prior notification nor complied with the substantive requirements of Regulation (EEC) No 1191/69 or Regulation (EC) No 1370/2007, as demonstrated above. The availability of such an award would thus effectively enable the circumvention of the state aid rules and the conditions laid down by the Union legislator under which competent authorities, when imposing or contracting for public service obligations, compensate public service operators for costs incurred in return for the discharge of public service obligations. Finally, as previously stated, the concession specifications under which Simet provided the transport services did not provide for payment of any financial compensation. Simet agreed to run the services under the conditions laid down in those concessions at its own risk.

(133)

Accordingly, the Commission cannot accept Simet’s claim that judgment 1405/2010 of the Council of State represents an award of damages related to a breach of Regulation (EEC) No 1191/69 rather than an award of public service compensation.

(134)

In light of the above, the Commission finds that the notified measure constitutes state aid within the meaning of Article 107(1) of the Treaty which is incompatible with the internal market,