The Commission has recently published the decision from September 2018 finding that the aid given to the Port Authority of Naples was incompatible with EU rules on state aids. In addition, the low concession fees charged by the Port Authority in favour of Cantieri del Mediterraneo were also considered a state aid in breach of EU rules. However, the Commission found, unusually when there is a finding of a state aid, that Italy was not obliged to recover the aid.
In essence the Commission found that it had not been diligent in the exercise of its powers and could have given the Italian authorities the false impression that the aid was in fact legal. The Commission found that this highly specific circumstance, peculiar to the procedures followed in examining the case, meant that the principle of legal certainty could have been breached vis a vis the Italian authorities. The Commission did not take action between 2006 and 2013 giving Italy the false impression that the aid for the dry dock at issue was legal.
The number of state aid cases concerning the transport sector and in particular maritime and inland waterway transport is significant. Nctm recommends reviewing these cases at the following link to the Commission’s web site: http://ec.europa.eu/competition/elojade/isef/index.cfm? fuseaction=dsp_sa_by_date
Article 8(1) of Regulation (EC) No 391/2009 requires survey organisations recognised at EU level by the Commission to be assessed at least every two years by the Commission together with the Member State that submitted the initial request for recognition of the organisation (‘sponsor’ Member State).
It follows from Articles 7 and 8 of the Regulation that in order to continue enjoying EU recognition, recognised organisations must continue to meet the requirements and minimum criteria set out in Annex I of the Regulation. This is verified through the continuous re-assessment conducted by the Commission and the ‘sponsor’ Member State under Article 8(1).
As of its withdrawal, the United Kingdom will no longer be in a position to participate in the assessments carried out pursuant to Article 8(1) of the Regulation for those organisations for which the United Kingdom acts as the sponsor Member State. Consequently, the continued validity of the recognition for these organisations at EU level could be called into question and could not be clarified with sufficient legal certainty under the existing provisions of the Regulation.
A Commission proposal to remedy this situation has now been agreed by the EU legislator (Parliament and Council) and the Commission. The proposal is to amend Article 8(1) of the Regulation by replacing the current requirement, under which only the ‘sponsor’ Member State shall participate in the regular assessment process conducted by the Commission, by introducing the participation of any Member State which has authorised one of the Recognised Organisations. It would allow the assessment to be carried out by the Commission together with any Member State which has authorised the relevant recognised organisation to act on its behalf for the purposes of Article 3(2) of Directive 2009/15/EC3, and not only the ‘sponsor’ Member State.
This article is for information purposes only and is not intended as a professional opinion. For further information, please contact Bernard O'Connor.
