Commission Decision (EU) 2022/756 of 30 September 2021 on the measures SA.32014, SA.32015, SA.32016 (2011/C) (ex 2011/NN) implemented by Italy and the Region of Sardinia in favour of Saremar (notified under document C(2021) 6990)Text with EEA relevance.

(d) By letter of 20 July 2016, the Italian authorities informed the Commission that, based on the funds received from the liquidation of Saremar’s assets and the schedule of liabilities, only EUR 4452226,42 could be assigned to the State aid claims (approximately 40 % of the amounts due). Moreover, they confirmed that Saremar was laying off its entire staff and that it would be erased from the companies register once its liquidation was completed, and that there were no connections of any kind between the seller (Saremar) and the buyer (Delcoservizi) of the assets. Finally, by letter of 17 July 2017, the Italian authorities provided evidence of payment of EUR 4452226,42 by the liquidators of Saremar to the Region.

2.2.

Measures in scope of the 2011 and 2012 Decisions

(28) The following measures have been subject to assessment in the formal investigation procedure opened by the 2011 and 2012 Decisions:

(1) Compensation for the provision of SGEI under the prolongation of the initial Conventions (measure 1);

(2) Illegal prolongation of rescue aid to Tirrenia and Siremar (measure 2);

(3) The privatisation of the companies of the former Tirrenia Group

This includes the deferred payment by CIN of part of the purchase price for its acquisition of the Tirrenia business branch and several alleged additional aid measures in the context of the privatisation of the Siremar business branch (e.g. counter-guarantee and capital increase by the State for CdI).

(measure 3);

(4) Compensation paid for the operation of SGEI under the future Conventions/Public Service Contracts (measure 4);

(5) The berthing priority (measure 5);

(6) The measures laid down by the 2010 Law (measure 6);

(7) Five additional measures adopted by the Region of Sardinia in favour of Saremar (measure 7).

(29) By its 2014 Decision, the Commission closed the formal investigation procedure as concerns four of the five measures adopted by the Region of Sardinia in favour of Saremar, referred to above as measure 7. However, it did not conclude on a fifth measure: the Bonus Sardo – Vacanza project

The 2014 Decision indicated that this project would be assessed in a separate decision.

. Therefore, for Saremar, the Commission has not yet taken a position on the compatibility of measures 1, 3, 4, 5, 6 and the Bonus Sardo – Vacanza project with the internal market.

1. LIQUIDATION OF THE BENEFICIARY AND LACK OF ECONOMIC CONTINUITY

(30) The Commission recalls that the system of ex ante scrutiny of new aid measures by the Commission provided in Article 108(3) TFEU is designed to avoid the granting of aid that is incompatible with the internal market

Judgment of the Court of Justice of 3 March 2020, Vodafone Magyarország, C-75/18, ECLI:EU:C:2020:139, paragraph 19.

. As far as recovery of incompatible aid is concerned, the Court has consistently held that the Commission’s power to order Member States to recover aid regarded by the Commission as being incompatible with the internal market is aimed at removing the distortion of competition caused by the competitive advantage which the recipient of the aid has enjoyed, thereby re-establishing the situation that existed before that aid was paid

Judgment of the Court of Justice of 11 December 2012, Commission v Spain (Magefesa II), C-610/10, ECLI:EU:C:2012:781, paragraph 105.

. If a company cannot repay the aid, then the implementation of recovery requires the Member State concerned to bring about the liquidation of that company

Judgment of the Court of Justice of 17 January 2018, Commission v Greece (United Textiles), C-363/16, ECLI:EU:C:2018:12, paragraph 36.

, i.e. the cessation of its activities and the sale of its assets under market conditions.

(31) In other words, the main goal of the system of State aid control is to prevent the granting of incompatible State aid. As a consequence, if competition in the internal market is distorted by the disbursement of unlawful and incompatible State aid, it needs to be ensured that the situation prior to that distortion of competition is restored, if necessary, through the liquidation of the beneficiary.

(32) Against this background, the Commission notes that the still pending measures identified in recitals 28 and 29 refer to either Saremar, now in liquidation (measures 1 and the Bonus Sardo Vacanza), or to Saremar’s successors after its privatisation (measures 3 and 4), or to both (measures 5 and 6). However, the privatisation of Saremar did not take place as it was described and preliminarily assessed in recitals 149 and 150, 238-246 and 305 and 306 of the 2012 Decision. Instead, Saremar was liquidated and its assets and the public service contract were tendered out under separate tenders.

(33) Under Italian law

Regio Decreto 16 marzo 1942, n. 267, as amended (so called Legge Fallimentare).

, once a company enters liquidation, its assets are sold and the proceeds from the sale are transferred to its creditors, according to the ranking of their claims in the schedule of liabilities. Against this background, the Commission must first establish whether continuing the investigation with respect to Saremar still serves any purpose. If this is not the case, then it must establish whether there may be economic continuity between Saremar and any other companies, based on the case law by the Court of Justice.

(34) Regarding Saremar, the Commission first notes that, on 15 January 2015, following the 2014 Decision, Saremar entered into concordato preventivo and a liquidator was appointed. Under Italian law, the concordato preventivo is a procedure normally aiming at ensuring continuation of business activities. However, the Commission notes that in this case the company was admitted to a concordato preventivo con cessione dei beni, i.e. a liquidation procedure, agreed with the creditors, for the sale of the company’s assets and the termination of its business, with only temporary continuation of activities. This procedure is supervised by a judge, who has to validate the agreement between the creditors. In this case, the Commission notes that on 22 July 2015, the Tribunale di Cagliari validated the agreement between the creditors of Saremar, with continuation of activities until 31 December 2015 (see recital 27). Therefore, the Commission considers that the chosen procedure already implied that, at the end of it, Saremar would exit the market.

(35) Indeed, the Commission notes that Saremar ceased all its economic activities on 31 March 2016 (see recital 27), including its ferry services on routes operated on the basis of a public service contract. The public service contract was from then on entrusted to Delcomar. In parallel, its vessels were sold to the company Delcoservizi. After the sale of Saremar’s assets, on 22 April 2016, the Regional Council of Sardinia ordered the liquidation of Saremar by its Decision No 24/23.

(36) Additionally, Italy implemented the 2014 Decision correctly, albeit with a delay. The State aid claim of EUR 10824309,69, plus recovery interest, was duly registered in the schedule of liabilities of the company. Out of that amount, only approximately EUR 4,4 million could be paid to Italy after the sale of Saremar’s assets. However, as the insolvency proceedings of Saremar lead to its liquidation and the company is no longer operating any activities

See point 129 of the Commission Notice on the recovery of unlawful and incompatible State aid, C 247/1, 23 July 2019.

, the Commission provisionally closed the recovery procedure by letter of 13 September 2017, sent to Italy.

(37) Based on the above, the Commission notes that Saremar has not operated any economic activity for over five years now, its assets have been sold, its staff laid off, and it will be erased from the company register once the liquidation procedure has been finalised. Any possible distortion of competition or effect on trade of the measures referred to in recitals 28 and 29 ended once Saremar ceased its activities. Moreover, already the recovery claim from the 2014 Decision was only partially satisfied (for approximately 40 % of the amount due, see recitals 27 and 36).

(38) Against this background, the Commission notes that both objectives of State aid control and of recovery referred to above, i.e. to prevent the granting of incompatible State aid and to ensure that the situation prior to the distortion of competition caused by State aid incompatible with the internal market is restored, are already met. Indeed, Saremar is no longer an economic operator active on the market and is already in liquidation, and State aid claims could be satisfied only partially following the sale of Saremar’s assets, due to insufficient funds. Therefore, continuing the investigation with respect to Saremar does not serve any purpose.

(39) Regarding the question of potential economic continuity between Saremar and its successors, according to the case-law, the following factors may be taken into account: the scope of the transfer (assets and liabilities, continuity of the workforce, bundled assets), the transfer price, the identity of the owners of the acquiring undertaking and of the original undertaking, the moment at which the transfer was carried out (after the start of the investigation, the initiation of the procedure or the final decision) and the economic logic of the transaction

Case T-121/15 Fortischem a.s. v. Commission, ECLI:EU:T:2019:684, paragraph 208.

.

(40) Against this background, the Commission notes that, as part of the recovery procedure for the implementation of the 2014 Decision, it has already assessed whether the obligation to repay the aid granted to Saremar ought to be extended to other undertakings to which the beneficiary’s assets or business may have been transferred. Indeed, in that recovery procedure the Commission accepted that the recovery obligation would be targeted at Saremar only, ruling out the existence of economic continuity with Delcomar or Delcoservizi (together, the successors), for the following reasons:

(a) the operation of ferry services on routes on the basis of a public service contract and the ships were assigned through two separate, transparent, public and non-discriminatory tenders;

(b) Saremar’s workforce was laid off and only partly re-hired by the successors

Based on the information available to the Commission, less than 20 % of Saremar’s workforce would have been re-hired by Delcomar.

;

(c) the successors are private operators, while Saremar is 100 % owned by the Region of Sardinia, hence no relation could be established between the seller and the buyer of the assets;

(d) the investment or bidding decisions by the successors are market decisions.

(41) Since the provisional closure of the recovery case, no information has reached the Commission that could make it change its view on this matter. Therefore, based on the available information, economic continuity between Saremar and either Delcomar or Delcoservizi, or both, can be ruled out. The Commission will still follow up the liquidation of Saremar until its erasure from the trade registry. Only this will allow it to definitively close the recovery procedure for the 2014 Decision

See points 136 to 140 of the Commission Notice on the recovery of unlawful and incompatible State aid, C 247/1, 23 July 2019.

.

(42) In this context, given the liquidation of Saremar and the absence of economic continuity with its successors, the formal investigation procedure on the still outstanding measures granted in favour of Saremar or its successors, initiated under the first subparagraph of Article 108(2) TFEU, no longer serves any purpose.

(43) This Decision does not concern or prejudge any other issues covered by the 2011 Decision and the 2012 Decision

See recitals 6 and 8 of this Decision.

or brought to the attention of the Commission by interested parties in the course of the investigation opened under those Decisions,

HAS ADOPTED THIS DECISION:

Article 1

The proceeding initiated under the first subparagraph of Article 108(2) TFEU on 5 October 2011 and extended on 19 December 2012 in respect of Saremar and its successors is hereby terminated.

Article 2

This Decision is addressed to the Italian Republic.

Done at Brussels, 30 September 2021.

For the Commission

Margrethe Vestager

Member of the Commission