Liberty Lines (Transport - Public services for high-speed maritime passenger transport - Judgment) [2022] EUECJ C-437/21 (13 October 2022)

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(Reference for a preliminary ruling – Transport – Regulation (EEC) No 3577/92 – Articles 1 and 4 – Regulation (EC) No 1370/2007 – Article 1 – Direct award of public service contracts – Public services for high-speed maritime passenger transport – Treatment like railway transport services provided by sea)

REQUEST for a preliminary ruling under Article 267 TFEU from the Consiglio di Stato (Council of State, Italy), made by decision of 21 April 2021, received at the Court on 16 July 2021, in the proceedings

composed of M. Ilešič, acting as President of the Chamber, I. Jarukaitis and Z. Csehi (Rapporteur), Judges,

– Liberty Lines SpA, by A. Abbamonte, F. Di Gianni, C. Morace, G. Pregno and A. Scalini, avvocati,

– the Italian Government, by G. Palmieri, acting as Agent, and by A. Berti Suman, procuratore dello Stato, and by F. Sclafani, avvocato dello Stato,

– the European Commission, by G. Gattinara, P. Ondrůšek, G. von Rintelen and G. Wils, acting as Agents,

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

1 This request for a preliminary ruling concerns the interpretation of EU law relating to the award of public service contracts in respect of public services for high-speed maritime passenger transport.

2 The request has been made in proceedings between Liberty Lines SpA and the Ministero delle Infrastrutture e dei Trasporti (Ministry of Infrastructure and Transport, Italy) (‘the MIT’), concerning the direct award of the high-speed maritime passenger transport service between the port of Messina (Italy) and the port of Reggio Calabria (Italy), in the Strait of Messina, to Bluferries Srl, without issuing a specific tender procedure.

3 Article 1(1) of Council Regulation (EEC) No 3577/92 of 7 December 1992 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) (OJ 1992 L 364, p. 7) provides:

‘As from 1 January 1993, freedom to provide maritime transport services within a Member State (maritime cabotage) shall apply to Community shipowners who have their ships registered in, and flying the flag of a Member State, provided that these ships comply with all conditions for carrying out cabotage in that Member State …’

1. “maritime transport services within a Member State (maritime cabotage)” shall mean services normally provided for remuneration and shall in particular include:

– ports situated on the mainland and on one or more of the islands of one and the same Member State,

‘1. A Member State may conclude public service contracts with or impose public service obligations as a condition for the provision of cabotage services, on shipping companies participating in regular services to, from and between islands.

Whenever a Member State concludes public service contracts or imposes public service obligations, it shall do so on a non-discriminatory basis in respect of all Community shipowners.

2. In imposing public service obligations, Member States shall be limited to requirements concerning ports to be served, regularity, continuity, frequency, capacity to provide the service, rates to be charged and manning of the vessel.

Where applicable, any compensation for public service obligations must be available to all Community shipowners.

6 Article 1 of Regulation (EC) No 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road and repealing Council Regulations (EEC) Nos 1191/69 and 1107/70 (OJ 2007 L 315, p. 1), entitled ‘Subject matter and scope’, provides in paragraph 2 thereof:

‘This Regulation shall apply to the national and international operation of public passenger transport services by rail and other track-based modes and by road, except for services which are operated mainly for their historical interest or their tourist value. Member States may apply this Regulation to public passenger transport by inland waterways and, without prejudice to Council Regulation (EEC) No 3577/92 …, national sea waters.’

7 Article 2(h) of Regulation No 1370/2007 defines ‘direct award’ as ‘the award of a public service contract to a given public service operator without any prior competitive tendering procedure’.

‘Unless prohibited by national law, competent authorities may decide to make direct awards of public service contracts where they concern transport by rail, with the exception of other track-based modes such as metro or tramways. …’

9 The Decreto del Ministero dei Trasporti e della Navigazione, n. 138 T, recante rilascio a Ferrovie dello Stato – Società Trasporti e Servizi per Azioni la concessione ai fini della gestione dell’infrastruttura ferroviaria nazionale (Decree of the Ministry of Transport and Navigation, No 138 T, granting Ferrovie dello Stato – Società Trasporti e Servizi per Azioni the concession for the management of the national railway infrastructure) of 31 October 2000, in the version applicable to the dispute in the main proceedings (‘Decree No 138 T/2000’), provides, in Article 2(1)(e), that the object of the concession in question includes the rail connection by sea between the Italian mainland and Sicily and Sardinia, respectively.

10 Article 47 of decreto-legge n. 50 – Disposizioni urgenti in materia finanziaria, iniziative a favore degli enti territoriali, ulteriori interventi per le zone colpite da eventi sismici e misure per lo sviluppo (Decree-Law No 50, on urgent provisions in financial matters, initiatives in favour of territorial bodies, additional interventions in favour of areas affected by earthquakes and development measures) of 24 April 2017 (GURI No 95 of 24 April 2017 – Ordinary Supplement No 20), converted into law, with amendments, by legge n. 96 (Law No 96) of 26 June 2017 (GURI No 144 of 23 June 2017), in the version applicable to the dispute in the main proceedings (‘Decree-Law No 50/2017’), entitled ‘Interventions for rail transport’, provides, in paragraph 11‑bis:

‘In order to improve the flexibility of passenger rail connections between Sicily and the Italian mainland, the rail connection service by sea referred to in Article 2(1)(e) of [Decree No 138 T/2000] can also be provided by means of high-speed vessels whose operating model is linked to the rail transport service to and from Sicily, in particular on the outward and return journeys “Messina – Villa San Giovanni” and “Messina – Reggio Calabria”, to be implemented within the framework of the resources provided for by the legislation in force for the programme contract, “services part”, concluded between the State and Rete Ferroviaria [I]taliana SpA, without prejudice to the services provided for therein.’

11 Decreto legislativo n. 50 – Codice dei contratti pubblici (Legislative Decree No 50 on the Public Procurement Code) of 18 April 2016 (GURI No 91 of 19 April 2016 – Ordinary Supplement No 10), in the version applicable to the dispute in the main proceedings, refers, in Article 17(1)(i) thereof, to public passenger transport services by rail or by metro among the specific exclusions from public contract awards and service concessions.

The dispute in the main proceedings and the question referred for a preliminary ruling

12 By a notice published in the Official Journal of the European Union on 31 January 2015, the MIT launched an open procedure for the award of a public contract for the high-speed maritime passenger transport service in the Strait of Messina, between the port of Messina and the port of Reggio Calabria, for a period of three years. The estimated value of that contract was EUR 21 025 000. The public contract was awarded on the basis of the criterion of the most economically advantageous tender to Ustica Lines SpA, which subsequently became Liberty Lines.

13 The corresponding contract was concluded on 24 June 2015 and the provision of the service in question started on 1 October 2015. That contract also provided for the possibility for the MIT to extend its application for a further 12 months provided that the necessary financial resources were available and the contracting authority concerned was still interested in that service being provided.

14 On 14 September 2018, Liberty Lines informed the MIT that the contract would soon expire, stating that, if its application were not extended, it would no longer provide the service in question from 1 October 2018. The MIT did not reply to that communication.

15 However, from that latter date, the MIT decided to entrust, without any competitive tendering procedure, the provision of the service in question to Bluferries, wholly owned by Rete Ferroviaria Italiana (‘RFI’), which was already the provider of that service on the ‘Messina – Villa San Giovanni’ route, also in the Strait of Messina. The award of the contract in question was challenged by Liberty Lines before the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy).

16 In the course of the proceedings before that court, first, it became apparent that that award had been decided by the MIT: a note from the latter of 26 September 2018, signed by the minister concerned, stated that it was necessary, on the expiry of the contract concluded with Liberty Lines on 1 October 2018, to ensure the continuity of the maritime transport service in question and that, to that end, the ‘flexibility of rail connections between Sicily and the Italian mainland’ could be ensured by the ‘inclusion’ of the connection in question in the programme contract entered into between the Italian State and RFI. Second, on 8 October 2018, RFI replied to the MIT, asking it to discuss the ‘essential elements of the service award … with a view to its continuation’ and the need to ‘adapt’ that programme contract.

17 That court dismissed the action brought by Liberty Lines, finding, in essence, that Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC (OJ 2014 L 94, p. 243) and Regulation No 1370/2007 allowed for the direct award of public service contracts for rail transport by sea, such as that at issue in the main proceedings. Indeed, the service in question should be classified as a rail transport service, the award of which was not subject to the obligation to carry out any tendering procedure. The possibility of classifying the maritime transport service in question as a rail transport service results precisely from Article 47(11‑bis) of Decree-Law No 50/2017.

18 Liberty Lines appealed against that judgment to the Consiglio di Stato (Council of State, Italy), the referring court, claiming, inter alia, that there was no urgency justifying the use in the present case of a direct award, since the MIT had specifically created the situation at issue in the main proceedings by not extending the contract in question or launching a tendering procedure, and also the fact that the maritime transport service concerned could not be treated like a rail transport service, since Bluferries used hydrofoils, that is, vessels without the facilities necessary for the carriage of railway cars.

19 The referring court asks whether a provision such as Article 47(11‑bis) of Decree-Law No 50/2017 is compatible with EU law. In its view, that provision excludes the award of the high-speed maritime transport service for passengers at issue in the main proceedings, in an unjustified manner and without any adequate reasoning, in particular as regards the verification of the existence of a ‘market failure’, from the scope of the rules governing public contracts, which would result in an infringement of Regulation No 3577/92. Furthermore, that national provision seems to grant RFI, as the company managing the national railway infrastructure, a special or exclusive right to operate that transport service. That could give rise, again in favour of RFI, to a measure constituting State aid, which distorts or threatens to distort competition.

20 In those circumstances the Consiglio di Stato (Council of State) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Does [EU] law, and in particular the principles of free movement of services and of opening up to competition as far as possible in the field of public service contracts, preclude a legal provision such as Article 47(11-bis) of [Decree-Law No 50/2017] which:

– treats high-speed maritime passenger transport between the ports of Messina and Reggio Calabria as equivalent to rail transport by sea between the Italian mainland and Sicily, as provided for in Article 2(e) of [Decree No 138 T/2000], or at least allows them to be treated as equivalent by law;

– reserves or appears capable of reserving for [RFI] the rail connection service by sea between Sicily and the Italian mainland, even where this involves the use of high-speed vessels?’

21 As a preliminary point, first, it should be noted that the second part of the question referred for a preliminary ruling concerns, in essence, the effects on competition of the direct award at issue in the main proceedings in that it ‘reserves’, or ‘appears capable of reserving’, for RFI the maritime connection service between Sicily and the Italian mainland. Indeed, in the request for a preliminary ruling, the referring court states that the national provision at issue in the main proceedings could constitute, in favour of that company, a ‘State aid measure which distorts or is likely to distort competition’.

22 However, the referring court does not provide any information relating to the contract concluded in the context of the direct award of the service at issue in the main proceedings, in particular as regards the compensation that may be granted by the Italian authorities in the context of the implementation of that contract, although such information is necessary to enable the Court to give a useful answer to that second part.

23 In those circumstances, it is not necessary to examine the second part of question submitted for a preliminary ruling.

24 As regards, second, the first part of the question referred, it should be noted that, notwithstanding the fact that the referring court does not identify, in the question referred, the provisions of EU law which it considers capable of precluding the national provision referred to in that question, it is apparent from the grounds of the request for a preliminary ruling that that court considers that the high-speed passenger maritime transport services at issue in the main proceedings fall within the scope of Regulation No 3577/92 and that it asks whether that provision of national law, in so far as it exempts that category of services from the rules on the award of public contracts, infringes EU law.

25 However, according to the Italian Government, maritime transport services such as those at issue in the main proceedings also fall within the scope of Regulation No 1370/2007, with the result that, in accordance with Article 5(6) of that regulation, it is open to the competent authorities to make direct awards of public service contracts for that type of transport.

26 In that regard, it should be noted that, under the first sentence of Article 1(2) of Regulation No 1370/2007, that regulation applies to the national and international operation of public passenger transport services by rail and other track-based modes and by road. Furthermore, in accordance with the second sentence of Article 1(2) of that regulation, Member States may also make it applicable to passenger transport ‘by national sea waters’.

27 Thus, it is, in principle, possible for Regulation No 1370/2007 to be made applicable to maritime transport by high-speed vessels in circumstances such as those in the main proceedings, in which Article 47(11-bis) of Decree-Law No 50/2017 treats, under certain conditions, maritime transport by high-speed vessels in the same way as transport by rail.

28 However, it is also apparent from the terms of the second sentence of Article 1(2) of Regulation No 1370/2007 that that regulation is applicable to public passenger transport by national sea waters ‘without prejudice’ to Regulation No 3577/92, with the result that, in the event of conflict, the provisions of the latter regulation prevail.

29 Consequently, it must be held that, by its question, the referring court seeks to ascertain, in essence, whether Regulation No 3577/92, and in particular Article 1(1) and Article 4(1) thereof, must be interpreted as precluding a national provision whose purpose is to treat maritime transport services like rail transport services, where the effect of such treatment is to exclude the service in question from the application of the rules on public procurement which would otherwise be applicable to it.

30 In that regard, it must be noted that Article 1 of Regulation No 3577/92 clearly establishes the principle of freedom to provide maritime cabotage services within the European Union (judgments of 20 February 2001, Analir and Others, C‑205/99, EU:C:2001:107, paragraph 20, and of 9 March 2006, Commission v Spain, C‑323/03, EU:C:2006:159, paragraph 43).

31 Under the first subparagraph of Article 4(1) of that regulation, a Member State may conclude public service contracts with, or impose public service obligations as a condition for the provision of cabotage services, on shipping companies participating in, inter alia, regular services to and from islands. The second subparagraph of that provision requires that, whenever a Member State concludes public service contracts or imposes public service obligations, it must do so on a non-discriminatory basis in respect of all EU shipowners.

32 In the present case, it is apparent from the order for reference that, although the high-speed maritime connection service for passengers in the Strait of Messina between the port of Messina and the port of Reggio Calabria was awarded, for the period from 1 October 2015 to 30 September 2018, following an open procedure and on the basis of the criterion of the most economically advantageous tender, the contract for the provision of the service in question from 1 October 2018 was not the subject of a competitive tendering procedure.

33 In that regard, it should be noted that the rules on public procurement are not the same depending on whether it is a question of public passenger transport services by navigable waterway or public passenger transport services by rail.

34 Indeed, it is only for public service contracts for transport by rail, with the exception of other track-based modes of transport, such as metro or tramway, that Article 5(6) of Regulation No 1370/2007 authorises, under certain conditions, a direct award, that is to say, as stated in Article 2(h) of that regulation, without a prior competitive tendering procedure.

35 Furthermore, as has been noted in paragraph 31 above, the first subparagraph of Article 4(1) of Regulation No 3577/92 provides that, where a Member State concludes public service contracts or imposes public service obligations, it must do so on a non-discriminatory basis in respect of all EU shipowners and, unlike Regulation No 1370/2007, it does not provide for the possibility of awarding directly.

36 Thus, since Member States may apply Regulation No 1370/2007 to public transport of passengers by inland waterway, but only without prejudice to Regulation No 3577/92, contracts for public passenger transport by inland waterway cannot be concluded without a prior competitive tendering procedure, in accordance with the provisions of that latter regulation.

37 It follows that it cannot be accepted that a national measure effects a reclassification of certain services which does not take account of their actual nature and which leads to their being excluded from the application of the rules applicable to them.

38 Such a conclusion is of particular importance where such a reclassification results in a direct award of those services, without competitive tendering, which would otherwise be required.

39 In the light of all the foregoing considerations, the answer to the question referred is that Regulation No 3577/92, in particular Article 1(1) and Article 4(1) thereof, must be interpreted as precluding national legislation whose purpose is to treat maritime transport services like rail transport services, where the effect of such treatment is to exclude the service in question from the application of the rules on public procurement applicable to it.

40 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Council Regulation (EEC) No 3577/92 of 7 December 1992 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage), in particular Article 1(1) and Article 4(1) thereof,

must be interpreted as precluding national legislation whose purpose is to treat maritime transport services like rail transport services, where the effect of such treatment is to exclude the service in question from the application of the rules on public procurement applicable to it.

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