Summary Procedure Description of the Measure
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Brussels, 16 August 2018 Case No: 82251 Document No: 919712 Decision No 072/18/COL Norwegian Ministry of Trade, Industry and Fisheries PO Box 8090 Dep 0032 Oslo Norway [Non-confidential version] [The information in square brackets is covered by the obligation of professional secrecy] Subject: The Coastal Route Contracts Bergen-Kirkenes (2021-2030) Summary (1) The EFTA Surveillance Authority (“the Authority”) wishes to inform the Norwegian authorities that, having assessed the notified public service compensation for the Coastal Route Contracts Bergen-Kirkenes (“the public service compensation”), it considers that the measure does not constitute state aid1 within the meaning of Article 61(1) of the EEA Agreement. (2) The Authority has based its decision on the following considerations. Procedure (3) The Norwegian authorities notified their plans to grant the public service compensation by letter of 22 June 2018.2 Description of the measure 3.1 Background (4) On 29 March 2017, the Authority adopted Decision No 70/17/COL on the Coastal Agreement for Hurtigruten Maritime Services 2012-2019 (“the 2017 Decision”), concluding that the public service compensation to Hurtigruten was compatible aid pursuant to Article 59(2) of the EEA Agreement.3 (5) In the 2017 Decision, with a view to the new tender for the Coastal Route that the Norwegian authorities were planning to launch, in order to cover the period as from 1 January 2021,4 the Authority also provided guidance on how the Norwegian authorities could attain the widest possible opening-up to genuine competition, by taking measures “[…] such as a more limited entrustment in terms of duration or scope, or separate entrustments, for example by (1) Reference is made to Article 4(2) of the Part II of Protocol 3 to the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice. (2) Documents No 919310, 919312, 919314, 919316, 919318, 919320, 919322, 919324, 919326, 919328, 919330, 920452 and 920453. (3) OJ L 158, 21.6.2018, p. 19 and the EEA Supplement No 40, 21.6.2018, p. 1. (4) The current contract includes an option to extend operation until the end of 2020. _______________________________________________________________________ Rue Belliard 35, B-1040 Brussels, tel: +32 2 286 18 11, fax: +32 2 286 18 00, www.eftasurv.int Page 2 unbundling the route into different stretches or day schedules, and in combination with the extension of the time-limit from the deadline for submitting bids until the service start-up date”.5 (6) The new tender was launched on 19 September 2017. This tender resulted in the submission of bids from three operators: Hurtigruten AS (“Hurtigruten”), Havila Holding AS (“Havila”) and Greenships Invest AS (“Greenships”). Tender procedure and awards of contracts (7) The new tender for the Coastal Route was launched by the Ministry of Transport and Communications (“the Ministry”). (8) Given that the Coastal Route service requires eleven routes/departures (and therefore 11 vessels), in order to conduct daily sailings to the specified ports of call and in order to reduce entry barriers and thereby facilitate competition, the service was split into three smaller packages: Package 1: three routes (three vessels) Package 2: four routes (four vessels) Package 3: four routes (four vessels) (9) In particular, according to the tender specifications, the Coastal Route service could be planned as follows: the operator of Package 1 sails from Bergen on days 1, 4 and 7; the operator of Package 2 sails from Bergen on days 2, 5, 8, and 10; and the operator of Package 3 sails from Bergen on days 3, 6, 9 and 11. The cycle then restarts.6 (10) All the tenderers were invited to submit bids on one or more packages. A tenderer could bid for Package 2 and 3, even if it only had the capacity to service one of these packages. In this case, the Ministry would decide which package the tenderer would be awarded (if any). (11) Hurtigruten and Greenships submitted bids for all three packages, whereas Havila submitted a bid for one package of four vessels (either Package 2 or Package 3). (12) The bid from Greenships was rejected as the company did not fulfil all the selection criteria, as specified in the tender documents. (13) The contracts were to be awarded on the basis of the lowest price. (14) The Ministry awarded two contracts to Hurtigruten for three and four vessels respectively, and one contract to Havila for four vessels. The contracts and the compensation for the provision of the Coastal Route services (15) The Coastal Route service consists of the combined transport of persons and goods along the Norwegian coast from Bergen to Kirkenes, as illustrated below: (5) The 2017 Decision, paragraph 113. (6) A different division of the routes can also be established, if parties agree and find it more appropriate. Page 3 The Bergen – Kirkenes route (16) The operation of the service is to have a duration of 10 years, covering the period from 1 January 2021 to 31 December 2030. (17) Under the contracts, the operators are to perform daily sailings throughout the year with calls at 32 ports between Bergen and Kirkenes. For the Tromsø – Kirkenes and Kirkenes – Tromsø routes, freight transport are also to be provided. The services are to be operated in line with certain capacity and vessel requirements, as stipulated in the contracts, taking into account certain particularities (i.e. long distances, rough weather, etc.). Vessels used on the coastal route are to have, as a minimum, a passenger capacity for 300 passengers, berth capacity in cabins for 120 passengers and freight capacity for 150 euro pallets of dry and refrigerated cargo. They are also to meet legal, technical and environmental requirements (such as safety and accessibility, and holding valid certificates). (18) Concerning the environmental requirements in particular, in order to reduce emissions from the service by 20% compared to the current emission level, and in line with national environmental regulations and targets, the contracts limit the maximum allowed CO2 emissions from the vessels serving the Coastal Route. The maximum allowed emissions are 162 000 tonnes of CO2 on average for the whole contract period. This implies an increased cost for the operators, compared to the previous contract. Page 4 (19) The contracts include a clause regarding the conclusion of a co-operation agreement between the operators to ensure a sufficiently uniform and cohesive service. This agreement regulates matters such as liability, process and terms on transfer of employees, route planning, mutual information about the service and cargo operations and arrangements, and shall be in compliance with national and EEA competition rules. (20) The compensation for the contracts was determined by a transparent and non-discriminatory public procurement procedure. The Ministry will pay Hurtigruten an annual compensation of NOK 234 million for the three vessels contract and NOK 312 million for the four vessels contract. Havila will receive an annual compensation of NOK 242 million for the four vessels contract. (21) The compensation is expressed in 2018 prices and will be adjusted in accordance with Statistics Norway’s cost index for domestic sea transport. If that index is unavailable, Statistics Norway’s Consumer Price Index will be used. (22) In addition, Hurtigruten’s contracts include a clause concerning adjustment of compensation in case of a significant loss of revenues (due to a considerable reduction in the number of public service passengers for the whole service), should the new operator (i.e. Havila) not perform all or parts of the services entrusted to it for at least consecutive 30 days. Hurtigruten must document that its loss of revenues and the reduction of the public service passengers is directly related to the non-performance by Havila, which, as a result, has affected customer preferences for the whole service. This clause comes into effect only if the loss of revenue constitutes more than 5% of the public service compensation granted by the State. Havila was offered the inclusion of a corresponding clause in its contract, but it declined. (23) According to the contracts, the operators are obliged to report accounting and financial data on the delivery of the public service activities, as well as audited financial statements for both public service and commercial activities. The operators are thus obliged to keep separate accounts for the public service activities on the Coastal Route and other activities outside the scope of the contracts to allow for proper auditing and reporting. (24) The compensation paid for discharging the public service obligations under the contracts is calculated on the classification and estimation of capacity and passenger costs and based on an appropriate allocation methodology. As explained in the 2017 Decision, capacity costs are allocated to the public service activities on the basis of the share of capacity reserved by the state compared to the total capacity of the fleet, whereas passenger costs are allocated on the basis of estimated kilometres sailed by public service travellers relative to the total number of passenger kilometres for all travellers on the fleet.7 Presence of state aid (25) Article 61(1) of the EEA Agreement reads as follows: “Save as otherwise provided in this Agreement, any aid granted by EC Member States, EFTA States 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 Contracting Parties, be incompatible with the functioning of this Agreement”. (7) The 2017 Decision, paragraph 65. Page 5 (26) The qualification of a measure as aid within the meaning of this provision requires that the measure must (i) be granted by the state or through state resources; (ii) confer an advantage on an undertaking; (iii) favour certain undertakings (selectivity); and (iv) be liable to distort competition and affect trade.