Judgment_paragraph 19 · Italian Republic and Sardegna Lines - Servizi Marittimi della Sardegna SpA v Commission of the European Communities (C-15/98, C-105/99)

19In that decision, the Commission made, in substance, the following findings:— since Law No 11/1988 had made substantive amendments to the aid scheme for Sardinian shipowners established in 1951, the amended aid scheme involved new aid which should have been notified to the Commission under Article 93(3) of the Treaty;— the aid constituted State aid for the purposes of Article 92(1) of the EC Treaty (now, after amendment, Article 87(1) EC) since ‘the beneficiary companies are relieved of a financial burden which they would normally bear (normal commercial interest rates and other charges on loans/leases)’, ‘the burden is borne by State resources (the Sardinian authorities)’, ‘the aid is selective (being reserved to the shipping sector)’ and ‘the aid affects trade between Member States’. On the last point, the decision found that more than 90% of goods traded between the Member States and Sardinia are transported by sea and that 65% of tourist traffic (passengers and vehicles) between the Community and Sardinia is handled by shipping companies;— the aid scheme does not fall within the exceptions laid down in Article 92(3) of the Treaty since it breaches the fundamental rights of freedom of establishment (Article 52 of the EC Treaty (now, after amendment, Article 43 EC)) and nondiscrimination on grounds of nationality (Articles 6 and 48(2) of the EC Treaty (now, after amendment, Articles 12 EC and 39(2) EC));the breach of the principle of freedom of establishment lies in the exclusion from the aid scheme of companies which are established in Sardinia but whose head office is elsewhere or whose ships are registered elsewhere. The obligation, in the case of ships of more than 250 tonnes, to employ a minimum contingent of seafarers who are registered in the general duty roster of the Sardinian port of registry of the vessel constitutes, for its part, a breach of the principle of nondiscrimination.— in any event, the aid scheme does not fulfil the conditions set out in Article 92(3)(a) and (c) of the Treaty:first, although Sardinia is eligible for regional aid under Article 92(3)(a) of the Treaty, the aid in question was not granted under an aid scheme designed to promote regional development, since it was limited to shipping companies. Furthermore, Article 92(3)(c) does not apply to aid which breaches Community guidelines on aid to specific sensitive sectors such as maritime transport;second, as regards the exceptions laid down in Article 92(3)(c) of the Treaty, the aid scheme does not comply with the requirement for transparency for the purposes of applying Community legislation on aid to shipbuilding (Council Regulation (EC) No 3094/95 of 22 December 1995 (OJ 1995 L 332, p. 1), as amended by Council Regulation (EC) No 1904/96 of 27 September 1996 (OJ 1996 L 251, p. 5). The requirement was imposed by the 1989 Community guidelines on State aid to shipping companies (SEC(89) 921 final, of 3 August 1989) and the 1997 guidelines on State aid to maritime transport (OJ 1997 C 205, p. 5). As far as aid for the leasing of ships is concerned, such aid constitutes operating aid of a type which is not allowed by the guidelines;— during the administrative procedure, the Italian Government did not dispute either the characterisation of the aid to Sardinian shipowners as new aid or the alleged breach of the fundamental principles of freedom of establishment and nondiscrimination on grounds of nationality;— Decision 98/95 does not cover recent amendments to the aid scheme, in particular those made by Law No 9/1996, which are to be the subject of a separate examination.