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

On 13 October 2022, the Court of Justice handed down its judgment in Case C‑437/21, Liberty Lines SpA v Ministero delle Infrastrutture e dei Trasporti, on the interpretation of the European law relating to the award of public service contracts in respect of public services for high-speed maritime passenger transport. The request has been made in proceedings between Liberty Lines SpA (“Liberty Lines”) and the Ministero italiano delle Infrastrutture e dei Trasporti(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 issuing a specific tender procedure.

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 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 24 June 2015, with 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. 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. From that latter date, however, the MIT decided to entrust the provision of the service in question to Bluferries without any competitive tendering procedure. 

Liberty Lines, therefore, challenged the award of the contract in question before the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court of Lazio). Since its action was dismissed, Liberty Lines appealed to the Consiglio di Stato (Council of State; the “referring court”) which, in light of the need to interpret the relevant European legislation, decided to stay the proceedings and to ask to the Court of Justice whether Regulation No 3577/92, and in particular its Article 1(1) and Article 4(1), 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.

According to the Court, since Member States may apply Regulation 1370/2007 to public transport of passengers by inland waterway, but only without prejudice to Regulation 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, and therefore 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.

Marco Stillo