High-speed passenger maritime transport. The Court of Justice rules on the direct award of public service contracts

On October 13, 2022, the Court of Justice delivered its judgment in case C‑437/21, Liberty Lines SpA v Ministero delle Infrastrutture e dei Transporti, on the interpretation of European law on the award of public service contracts in the context of public high-speed maritime passenger transport services. The request was made in the context of proceedings between Liberty Lines SpA (“Liberty Lines”) and the Italian Ministry of Infrastructure and Transport(Italian Ministry of Infrastructure and Transport, MIT) concerning the direct award of the high-speed maritime passenger transport service between the port of Messina and the port of Reggio Calabria, in the Strait of Messina, to Bluferries Srl (“Bluferries”) without launching a specific tender procedure.

On January 31, 2015, MIT launched an open procedure for the award of a public contract for the high-speed maritime passenger transport service between the port of Messina and the port of Reggio Calabria for a period of three years. The corresponding contract with Liberty Lines was concluded on June 24, 2015, with the possibility for MIT to extend its application for an additional 12 months provided that the necessary financial resources are available and that the contracting authority concerned is still interested in supplying this service. On September 14, 2018, Liberty Lines notified MIT that the contract would soon expire, stating that unless its application was extended, it would no longer provide the service in question as of October 1, 2018. last date, however, MIT decided to entrust the provision of the service in question to Bluferries without competitive bidding.

Liberty Lines therefore challenged the award of the contract in question before the Regional Administrative Court for Lazio (Regional Administrative Court of Lazio). Its action having been dismissed, Liberty Lines appealed to the Board of state (Council of State; the “referring court”) which, given the need to interpret the relevant European legislation, decided to stay the proceedings and to ask the Court of Justice whether Regulation No. 3577/92and in particular Article 1(1) and Article 4(1) thereof, must be interpreted as precluding a national provision the purpose of which is to treat maritime transport services as rail transport services, when this processing has the effect of excluding the service in question from the application of the public procurement rules which would otherwise be applicable to it.

According to the Court, since Member States can request Regulation 1370/2007 to the public transport of passengers by inland waterway, but only without prejudice to Regulation 3577/92, contracts for the public transport of passengers by inland waterway may not be concluded without a prior call for competition, in accordance with the provisions of the latter regulation, and it It cannot be accepted that a national measure carries out a reclassification of certain services which does not take account of their real nature and which leads to their exclusion from the application of the rules applicable to them.

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