2001/834/EC: Commission Decision of 18 July 2001 on the State aid implemented by Italy in favour of the port sector (Text with EEA relevance) (notified under document number C(2001) 2346)

• Articles: 6

Article 1

The aid of ITL 253028 million paid to port undertakings by Italy under Article 1(2) of Law No 428/92, Article 1(2)c of Law No 343/95 and Article 9(4) of Law No 30/98, in the form of direct grants to cancel debts and cover losses, is incompatible with the common market.

Article 2

The aid granted by Italy in the form of severance pay and early retirement contributions for the departure of the dock-workers belonging to dock-work companies provided for by Laws No 343/95, No 647/96 and No 30/98 does not constitute aid within the meaning of Article 87 of the Treaty.

Article 3

The measures adopted by Italy in respect of the Cassa integrazione guadagni straordinaria (special earnings supplement fund), the Indennità una tantum a favore di lavoratori inidonei (invalidity severance pay) and the Casa di soggiorno di Dovadola (holiday fund) to preserve dock-workers social security rights under Laws No 236/96, No 84/94, No 343/95, No 647/96 and No 30/98 do not constitute aid within the meaning of Article 87 of the Treaty.

Article 4

Italy shall take whatever steps are necessary to recover from the beneficiaries the incompatible aid referred to in Article 1 and unlawfully made available to them.

Repayment shall be made in accordance with the procedures of Italian law.

The amounts to be repaid shall bear interest from the date on which the aid was made available to the beneficiaries until the date on which it is effectively repaid.

The interest shall be calculated on the basis of the reference rate used to calculate the grant equivalent of regional aid.

Article 5

Italy shall inform the Commission, within two months of the date of notification of this Decision, of the measures it has taken to comply with it.

Article 6

This Decision is addressed to the Italian Republic.

Done at Brussels, 18 July 2001.

For the Commission

Loyola De Palacio

Vice-President

(1) OJ L 83, 27.3.1999, p. 1.

(2) OJ C 281, 19.10.1993, p. 10 and OJ C 339, 12.11.1996, p. 6, for Case C-27/93; OJ C 108, 17.4.1999, p. 2, for Case C-81/98.

(3) Judgment of the Court of 10 December 1991, Case C-179/90 Merci convenzionali porto di Genova SpA v Siderurgica Gabrielli SpA [1991] ECR I-5889.

(4) Commission Decision (97/744/EC) of 21 October 1997 pursuant to Article 90(3) of the EC Treaty on the provisions of Italian ports legislation relating to employment (OJ L 301, 5.11.1997, p. 17).

(5) See footnote 2. Decree-Law No 370 of 7 September 1992 deferring urgent measures provided for by employment law.

(6) Law converting Decree-Law No 370/92. See footnote 5.

(7) Conversion into law, with amendments, of Decree-Law No 148/93 on urgent measures in support of employment.

(8) Law reforming port legislation.

(9) Conversion into law, with amendments, of Decree-Law No 287/95 on extraordinary and urgent measures in favour of the port sector and shipping companies.

(10) Conversion into law, with amendments, of Decree-Law No 535/96 on urgent measures for the port, maritime, dockyard and shipping sectors as well as aid to guarantee certain air connections.

(11) See footnote 2.

(12) See footnote 10.

(13) Conversion into law, with amendments, of Decree-Law No 457/97 on urgent provisions to develop the transport sector and boost employment.

(14) See footnote 2.

(15) See footnote 3.

(16) Law No 26 of 17 February 1981 establishing the Port Management Fund and repealing Law No 161 of 22 March 1967.

(17) Resulting from long-established work and social practices in Italian ports, such as, inter alia, regulation of working hours, holidays, professional sicknesses, total wage bills, minimum wages for inactivity periods, pension rights or reimbursement of social contributions in case of workers' departures.

(18) Port of Genoa Judgment, see footnote 3, point 19.

(19) See footnote 4.

(20) Articles 90(3) and 86 respectively of the Treaty.

(21) Amending Law No 84/94 on port operations and the supply of temporary port labour.

(22) Decree No 132 of 6 February 2001 "Regulation laying down binding criteria for the regulating of port services by the port and maritime authorities, in line with Article 16 of Law 84/1994" Italian Official Gazette of 19 April 2001.

(23) See footnote 6. The criteria and ways of implementing the aid measures contained in Law No 428/92 were established by Ministerial Decree of 29 January 1993.

(24) Commission Decision to initiate the procedure in case C-27/93 (ex NN 103/92). See footnote 2.

(25) See footnote 7.

(26) See footnote 8.

(27) At the time of the extension of the procedure, the exact amount of aid granted under the various legislative instruments was unclear.

(28) See footnote 9. The aid measures are established in Article 1(2)(a) and (b) and 1(2)(c) respectively of the Law. The criteria and ways of implementing the aid measures under Article 1(2)c, cancellation of operating losses, were established by Ministerial Decree of 13 May 1996.

(29) See footnote 10.

(30) See footnote 13. The criteria and ways of implementing the aid measures under Article 9 of that Law were established by Ministerial Decrees of 2 April, 23 September and 19 October 1998, 21 April and 14 December 1999 and 5 October 2000.

(31) Prepared by the consultant METIS on behalf of ANCIP (Associazione Nazionale Imprese Portuali - National association of port undertakings and dock-work companies) which represents the above five ports.

(32) There are 140 ports listed for commercial traffic in Italy, 37 of which handle 80 % of total Italian traffic (source: Report of an Inquiry into the Current Situation in the Major Community Sea Ports by the European Sea Ports Organisation ESPO; November 1996).

(33) As already stated in recital 22 of Decision 97/744/EC (see footnote 4).

(34) Port of Genoa (see footnote 3), point 22.

(35) See Port of Genoa Judgment, point 14 et seq.

(36) See Port of Genoa Judgment, points 27 and 28.

(37) See Port of Genoa Judgment, point 13.

(38) Ex Article 48.

(39) Case C-22/98 Jean-Claude Becu et al [1999] ECR 1-5665, point 26.

(40) See Commission Decision of 25 November 1999 on aid to firms in Venice and Chioggia by way of relief from social security contributions under Laws No 30/1997 and No 206/1995 (OJ L 150, 23.6.2000, p. 50).

(41) The position initially taken by the Commission is contained in the decision to initiate the procedure C-27/93 (see footnote 2). At that time, the Commission took the view that the social security contributions amounted to State aid that was compatible with the common market.

(42) Fondo assistenza sociale lavoratori portuali, renamed Fondo gestione istituti contrattuali lavoratori portuali by Law No 23 of 17 February 1981.

(43) The new port undertakings employ dock-workers on a casual basis, as needed according to the workload (i.e. the number of workers and days worked are determined by the cargo handling activities which fluctuate in and between ports according to traffic).

(44) Part of the aid in question (ITL 160000 million) was reimbursed by the INPS to certain port undertakings and dock-work companies located in the regionally assisted areas in the south of Italy in accordance with a judgment of the Italian Constitutional Court (Sentenza della Corte Costituzionale n. 261 del 1991).

(45) See point 3.2.5, paragraph 2, of the Guidelines on State aid for rescuing and restructuring firms in difficulty (OJ C 368, 23.12.1994, p. 12).

(46) See Judgment of the Court of 29 April 1999. Case C-342/96 Kingdom of Spain v Commission "Fogasa" [1999] ECR Ι-2459.

(47) See, for example, Commission decisions in the maritime and port sectors, in cases NN 98/97 Belgium of 21 January 1998 or C-18/96 France of 2 October 1996 (OJ C 357, 26.11.1996). In the first case, the Commission decided not to raise objections with regard to the ad hoc fund for securing social security benefits of dock-workers. In the second, reductions in social security contributions in connection with reorganising working hours were found not to amount to State aid.

(48) See footnote 45.

(49) COM(97) 678 final, 10.12.1997, points 81 and 82.

(50) Proposal for a Directive of the European Parliament and of the Council on market access to port services, COM/2001/0035 final (OJ C 154 E, 29.5.2001, p. 290).

(51) See footnote 45.

(52) See Commission Decision 97/21/EC, ECSC of 30 July 1996 on State aid granted in favour of Compañía Española de Tubos por Extrusión SA (OJ 1997 L 8, p. 14). In this instance, the Commission's took the view that the funding of an ad hoc fund securing workers' social security rights (Fogasa) did not contain elements of State aid. That view was confirmed by the Court Judgment of 29 April 1999 in Case C-342/96 [1999]ECR I-2459.

(53) See Port of Genoa Judgment, point 28.

(54) Community Guidelines on national regional aid, OJ C 74, 10.3.1998, p. 9. In accordance with point 6.1 of these guidelines, the Commission will assess the compatibility of regional aid with the common market on the basis of the criteria in force at the time such aid was granted.

(55) See points 177, 227 and 228.

(56) Despite repeated attempts by the Commission, it has not been possible to establish a coherent and feasible timespan for eventual recovery.

(57) See Court judgment of 21 March 1991 in case C-303/88 Italy v Commission [1991] ECR I-1499, point 60.

(58) See Commission communication, published in OJ C 318, 24.11.1983, p. 3.