The REGIONAL ADMINISTRATIVE COURT Latium has cancelled the award of Siremar to Company of the Islands


The Regional administrative court for the Latium, with deposited sentence past thursday that we publish below, has received the resource introduced from the Society Sicilian Navigation (SNS), society constituted from Ustica Lines and Charon & Tourist, and has cancelled the award happened in the October 2011 of the company Siremar Sicily Marine Regional Society to the Company of Islands (CDI), society participated indirectly and in minority way from the Sicilian Region that - second the judges of the REGIONAL ADMINISTRATIVE COURT - for such acquisition has received an illegitimate aid of State returned through the which released performance of a controgaranzia bank from the Sicilian Region to the UniCredit. The judges have considered “the circumstance that the controgaranzia of the Region is not examined and has been, successively to the award, which revoked insignificant”.

ITALIAN REPUBLIC

IN THE NAME OF ITALIAN PEOPLEThe Regional administrative court for Lazio

(Terza Ter Section)

it has pronounced anticipates

SENTENCE

sul resource number of general registry 9686 of 2011, integrated from reasons added, proposed gives: Society of Sicilian Navigation Spa, in person of the legal representative pro tempore, represented and defended from the avv. Angelo Clarizia, Federico Tedeschini, Andrea Abbamonte, Carlo Morace, with address which elected near the study of the Prof. Avv. Angelo Clarizia in Rome, via Prince Clotilde, 2;

against

Siremar Sicily Regional Society Marine Spa, in person of the legal representative pro tempore, represented and defended from the avv. Aristide Police, Marco Annoni, Andrea Zoppini, Vincenzo Di Vilio, with address which elected near the study of the Prof. Avv. Aristide Police in Rome, via of Villa Sacchetti, 11;

Ministry of the Economic Development, in person of the Minister pro tempore, represented and defended from the General Legal profession of the State, domiciled for law in Rome, via of the Portugueses, 12;

regarding

Company of the Spa Islands, in person of the legal representative pro tempore, rappresentatoe defended from the avv. Fabio Cintioli, Giuseppe Gitto, Mario Santaroni, Massimiliano Mangano, Giovanni Fabio Licata, with address which elected near the study of prof. the Avv. Fabio Cintioli, in Rome via Pays wages to 259;

and with the participation of

Holding Mediterranean of Navigation s.p.a., in person of the legal representative pro tempore, represented and defended from the avv. Stefano Vinti and Corinna Fedeli, with address which elected near their study in Rome, via Emilia 88;

for the cancellation

-) of the actions all of the procedure mail in being from the Extraordinary Administration Tirrenia/former Siremar art. 3 D.L. 347/03 for the cession of the branch of company of Siremar s.p.a already take part of the Tirrenia Group, included the acquired opinions of the Committee of Surveillance there;

-) of I decree MSE - To say Gen. for Industrial Politics - prot. n. 192963 of the 14.10.2011 of authorization to Commissioner Straordinario to the acceptance of the supply and demand formalized in date 13.10.2011 from Company of the Islands s.p.a.;

-) of the actions all which foreordained to the definition of the procedure included the precedence there MSE notes (note MSE 8.9.2011, note MSE 26.9.2011, note MSE 29.9.2011) if and as considered lesive of the interest of the recurrent one;

-) of the ollowing conclusive provision of the procedure adopted from the A.S of the Group Tirrenia/Siremar of award of the procedure in question, and stipulated contracted ollowing with Company of the Islands between 14 and 20.10.2011;

-) if and as it can be necessary of the provisions of the Sicily Region of disowned number and date to means of which are proceeded:

alla Holding Mediterranean constitution s.p.a;

alla participation to the procedure of public evidence of which sub 1) to means of Company of the Islands s.p.a.;

del provision of Accountant Generale of the Sicily Region of the 3/4.8.2011 of release of fideiussoria guarantee before demanded in favour of Unicredit s.p.a.;

of every other action which foreordained to the violation of the norms of public evidence that has lead the Sicily Region in the indirect participation, but substantial, to the contest procedure in question.

And,

del provision of Accountant Generale of the Sicily Region of the 12.10.2011 of release of guarantee in favour of Unicredit spa,

Let alone,

for the invalidity declaratory judgement/inefficiency of the contract of cession of the branch of company the stipulated with the CDI - of number and date disowned and consequent statuizione of the obligation of subingresso of the recurrent one in the same contract.

Seen the added and relative resource, reasons the attached ones;

Seen the certificates of incorporation in judgment of Siremar Sicilian Regional Shipping Company Spa and Ministry of Mediterranean the Economic Development and Associates Holding Spa;

Seen the certificate of incorporation di in judgment and the recurrent incident resource proposed from incident the Associates Company of the Spa Islands;

Seen the defensive memories;

Approvals all the actions of the cause;

Reporter in the public audience of the day 27 April 2012 Dr. Giampiero Lo Presti and hearings for the parts the defenders like specified in the minutes;

Considered and considered in fact and right how much follows.

FACT

With the resource indicated in epigraph the Society of Sicilian Navigation (SNS) has appealled the actions of the procedure of sale of the branch of company of the Siremar in A.S., as announced publicly from Commissioner Straordinario p.t second the lines it guides supplied from PUT.

As a result of the invitation to manifest interest to the purchase of Ramo from Commissioner Straordinario p.t of the Siremar in AS, date 04.10.2010, was introduced five demands for participation to the procedure de quo; the competitors were invited therefore, in date 02.02.2011, to introduce the supply and demand of Ramo - “irrevocable, unconditioned and binding” - within the 15.03.2011.

Aforesaid Alla date, indicated from the AS, was introduced a single supply and demand of Ramo from the competitor Ustica Lines S.p.A.: such offer, but, did not contain the engagement to the payment of the fee indicated from the procedure, but only to the overload of all the afferent debits Ramo.

For its part, the Mediterranean society Holding S.p.A deposited only a letter with which the same one confirmed own interest to the procedure and, however, it contested the appraisal managed from the independent expert in order at the price of purchase.

Neither documents introduced from the competitors were considered consistent with previewed how much from the letter of procedure of the 02.02.2011 and Commissioner Straordinario it arranged therefore, the 21.03.2011, the reopening of the terms for all the five subjects admitted to the phase of two diligence, that they came, therefore, invited to introduce eventual new offered within the 05.04.2011, then postponed to the 06.04.2011. In the foretold term, Ustica Lines deposited a declaration with which it attested own availability to introduce a respectful offer of the terms and the conditions dictated from the procedure, asking contextually a delay for the term for the predisposition of the necessary financings, while the society Company of Islands (“CDI”), participated from Holding Mediterranean S.p.A., formulated a supply and demand of Ramo at the price of € 60.100.000, 00.

Commissioner Straordinario formulated however to the Ministry of the Economic Development a demanded new - in date 18.04.2011 - of reopening of the procedure regarding all the subjects admitted to the phase of two diligence on the foundation that the CDI offer, also previewing a purchase price of advanced nominal value to that indicated in the skill of appraisal returned from Bank S.p.A. Profile, indicated a payment for the majority in delayed way and according to modality and to conditions such for returning the amount of the offered fee uncertain. The Request of Commissioner Straordinario was received by PUT with note prot. 0103252 of the 10.05.2011. The Advisor therefore with new letter of invitation formulated to the competitors the invitation to propose, within the new term of the 23.05.2011, eventual migliorative supply and demands regarding the CDI offer.

In sight of the new term for the presentation of the offers, the societies Ustica Lines S.p.A and Charon & Tourist S.p.A communicated to the procedure of wanting to introduce a combined supply and demand by means of the society of new constitution Society Navigation Sicilian S.p.A. (“SNS”), constituted and participated in the measure of 50% from each of they.

SNS offered an amount of € 55.100.000, 00, beyond interests, while CDI maintained own offered precedence of € 60.100.000 firm, 00, comprehensive of interests.

As a result of the analysis of the offers introduced from the two competitors, the extraordinary Commissioner found the necessity to demand, to everyone of they, clarifications and integrations on the respective productions; the term in case of necessity was fixed for the 10.06.2011.

Nel course of the public new sat of opening of envelopes SNS supplied the indicated integrating clarifications from the procedure, while CDI formulated an offered new, increasing the fee for the purchase of Ramo to € 69.000.000, 00, beyond interests.

The AS considered the documentation produced from the competitors still not sufficient, with detail with regard to requirement of patrimonializzazione of the same ones, let alone approximately the sources of financing and, consequently, it invited SNS and CDI to supply, within the 18.7.2011, new documents.

Everyone of the competitors supplied therefore the demanded documentation and, on the offers so defined, pronounced the Advisor a first turns the 04.07.2011 (with reference to the offers of the 10.06.2011) and a second one turns the 26.07.2011, evidencing in particular that:

- “while deep SNS have supplied evidence of the available ones in order to tackle to such implementations, CDI has, various, supplied partial evidence to care”;

- “the part of offered price to the closing from SNS, pairs to Euro 30,1 million, integrally is covered by sources financial institutions…, while the part of offered price to the closing from CDI, pairs to Euro 20 million, is not supported by adapted to evidence of the means availabilities own” (p. 3 of the Addendum of the 26.07.2011);

- “the offered price from CDI is advanced to that offered from single SNS in nominal terms while an adapted weighting of the degree of aleatorietà inborn in the two offers returns the offered price from more favorable SNS” (p. 5 of the Addendum of the 26.07.2011);

- in the CDI offer “the associates limit to a responsibility assumption for-quota for obligation assumed to it”.

In date 05.08.2011, CDI sent to the Ministry of the Economic Development an availability declaration to replace the surety bond which released from Commercial Fidi - Consortium Guarantee, with a which released bank surety bond before demanded from UniCredit, attached to the same declaration according to a controgaranzia in favor of the Bank from the Sicilian Region.

On such integrating documentation they were pronounced in date 11.08.2011 is the Advisor that the advisers of the procedure which, in particular, considered that the documentation over described, as introduced successively upon maturity of the final deadline fixedly assigned, had to be considered irricevibile to the aims of the award of the procedure, to guarantee of the principles of treatment parity and not discrimination to the damages of the other offering subject.

In date 29.08.2011, the Committee of Surveillance authorized the award of Ramo to SNS, on the task that the sent integrating documentation from CDI was late and as such irricevibile and, moreover, than the controgaranzia released from the Sicilian Region it constituted aid of State, subject to notification to the European Community.

The Ministry of the Economic Development, moreover, with note of the 8.9.2011 asked clarifications on the cover financial institution for the offer for CDI with detail reference is to the subscription of the capital increase, is to the validity of the guarantee which released from Unicredit.

In date 09.09.2011, the Advisor financial of the procedure invited the two competitors to introduce - within the 13.09.2011 - attesting documentation the delay of the which released guarantees and, meanwhile, UniCredit invited to supply precisazioni with respect to the guarantee which released in its favor from the Sicilian Region also in consideration of the fact that the amount guaranteed from the Region still did not turn out mentioned in the budget of the same one.

Foretold Nel term SNS deposited declaration of delay of the guarantees which released from the financial institutions backers, while CDI deposited also the engagement of the associates to the subscription of the increase of capital already deliberated the 13.7.2011, let alone copy of the missive separately managed from Unicredit in favour of the procedure in order to return the clarifications demanded in order to the fideiussorio engagement assumed the 05.08.2011.

In date 26.09.2011 IT PUT asked the Prime Minister's Office indications with respect to legitimacy for the documentation introduced from CDI, with which released detail reference to the controgaranzia from the Sicilian Region; the Presidency citing a communication of the EC on the application of the articles. 87 and 88 of the Ec treaty [today articles. 107 and 108 Treaty on the Operation of the European Union] on the aids of State granted as guarantee, declared that in this case subordinate to its sieve could have shaped an aid of State is with reference to the guarantee which released from the Region, are “at the level of the guarantor of first level” because the controgaranzia of the Region it could have benefitted Unicredit respect to other banks.

The 29.09.2011 the Advisor arranged therefore to an ulterior reopening of the procedure, inviting the competitors to introduce eventual new offered migliorative binding, supplying indications on the modalities of presentation of the demanded guarantees.

Public All'ultima sat of the 13.10.2011 SNS restated own offer of the 23.05.2011, while CDI introduced offered migliorativa pairs to € 69.150.000, 00 (beyond interests) and, contextually, deposited new documentation of support, in particular comprising a letter of engagement of UniCredit to the release of guarantee for the payment of the part delayed of price (approximately € 35.000.000, 00) more not conditioned to the controgaranzia of the Region.

The 14.10.2011 met the Committee of Surveillance, which expressed, also on the escort of the opinion returned from the advisor and the advisers of the procedure, opinion favorable to the award of Ramo to CDI.

With provision prot. 0192963 of the 14.10.2011, PUT authorized Commissioner Straordinario to accept the CDI offer.

The award came therefore disposed regarding Company of the Islands.

All the actions pregressi, for like best indicated in epigraph, are appealled by today's the recurrent one with entrusted main resource to various censorships.

With a first group of censorships, the recurrent one assumes that the procedure would have had to close own advantage, with cession of the branch to its favor, to the public sitting of the 18 July 2011, like proposed from the advisor, without it could be proceeded to a new invitation to offer.

The various determination of Commissioner Straordinario, on consistent authorization of the Ministry, would have implied, second the recurrent one, a violation of the transparency principles and not discrimination, as well as of the principle of the autovincolo.

With according to group of censorships it is hurt then of the fact that the constitution of the Company of the Islands spa, let alone the constitution of its main associate, Holding Mediterranean S.p.A., would have happened in allegated violation of procedimentali rules relating to the modalities of selection of the private associate.

Consequently also the constitution of the new subject, Company of the Islands, would turn out in contrast with the principles of the public evidence, and the participation to the procedure for the cession of the Siremar illegittimamente would be benefitted by the presence, between the associates, of Sicily Region (that it controls with Holding Mediterranean majority participation, CDI associate) that, moreover, like titular subject of functions of programming, coordination and vigilance of the economic services of general interest, cannot then participate, neither in indirect way, to the management of the foretold services.

With the third group of reasons the modalities with which Company of the Islands are censured it has introduced own offer in the procedure, with detail reference to the CD. controgaranzia lend from the Sicily Region.

The performance of a controgaranzia from the Region, as condition for the release from the financial institution Unicredit of the engagement to assume an independent guarantee before demanded from reference to the entire amount for which the delay of the payment was previewed in the offer, would have compromise the parity of competition in the procedure, integrating the ends of an aid of not notified illegitimate state because to the EU commission.

The performance of a controgaranzia would be moreover illegitimate from the Region for the entire price, and therefore for a clearly advanced amount to the same quota regional participation in the social compages of CDI.

With resource for added reasons, it is appealled at last the document, best indicated in epigraph, known successively to the premise of the main resource, from which it would turn out that, in spite of the engagement to assume surety bond lend from Unicredit and produced from final CDI united to the last binding offer it did not make more reference to controgaranzia of the Region as the condition for the release of the guarantee, however said controgaranzia it was offered and it was operating to the date of the appraisal of the offers until the conclusion of the procedure.

United to the cancellation of the appealled actions, the recurrent one insists therefore for the cancellation and/or the declaration of inefficiency of the contract stipulated with the CDI and for the compensation of the damages.

They have been formed in Siremar judgment in a.s., the Ministry of the Economic Development, besides Company of the Islands and Holding Mediterranean, insisting all for the refusal of the encumbrance.

CDI has also proposed resorted incident, supporting the bastardy of the lacked exclusion the recurrent offer from the inferior procedure because to the previewed and not assisted minimal amount from the prescribed guarantees.

Public Alla audience of the day 27 April 2012, restated the defensive memories all, the parts has asked that the cause was withheld for the decision in the merit.

STRAIGHT

A). It is preliminarily necessary to examine the issues of inammissibilità of the main resource raised by the resistant ones.

A first issue regards the inammissibilità of the encumbrance in the part in which (particularly with the first reason of resource) it is assumed that the procedure would have had to arrest itself and to conclude itself with the cession in favour of Society of Sicilian Navigation (SNS) as a result of the proposal of formulated award in favour of the same one from the extraordinary Commissioner, with relative request to the Ministry of the economic Development, in date 1.9.2011.

The recurrent thesis, in fact, would have had to imply the bastardy, with the consequent burden of timely impugnation, of the successive action in date 29.9.2011 with which instead the Commissioner, by authority received ministerial, it has invited the participants to an ulterior improvement of the respective offers.

A lacked impugnation the cited determination, neither from the formal point of view in the epigraph of the resource, neither tantomeno with appropriate censorships that can be said substantially against of it directed, would return the resource partially inadmissible here.

The task cannot be shared from the College.

The decision of the extraordinary Commissioner to carry out for the third time a invitation to offer and to speed up once again an improvement of the offers constitutes in indubitable way the object of the indicated doglianze, whereby recurrent part comes to the location of the reasons by right for which, to its to say, the procedure would have had to arrest itself in an antecedent phase.

The action moreover is express cited in the epigraph of the resource to point c).

Neither the censorship can be considered inadmissible for genericità or lacked indication the norms that are assumed violated, considered that the thesis by right supported is absolutely clear and precise, and articulated around the denounced violation of the transparency principles and not discrimination that, according to art. the 4 of the D.L. 347/2003, must conform the development of the cession operations.

It is assumed then, always in via preliminary matter, than the same impugnation of the actions all burdened in main way would be late as I decree of the Ministry of the Economic Development of authorization to the sale to the society Company of the 14 Islands is of October 2011, while the resource would be only notified in date 17 November 2011.

Considered that with the resource it comes also demanded the cancellation and/or the declaratory judgement of inefficiency of the contract, one considers therefore the inammissibilità and/or inadmissibility of the proposed resource that, in reason of the special ritual, it would have had to be notified within the term of 30 days of the emanation of the actions appealled in main way.

The thesis cannot be shared from the College, considered that the ritual is not applicable to the fattispecie under investigation of which to art. the 119 of the code of the administrative process that regards, own in reason of its specialty (and the forecast of derogatori terms regarding those ordinaries) to the sun matters express previewed there, between which they do not figure the procedures of cession disciplined by the norm of which to the D.L. 347/03.

It cannot not even not be shared the exception of backwardness of the turned impugnation adverse the actions of the procedure of 5 April 2011, 23 May 2011, 11 june 2011, 18 July 2011 and, last, of the 29 september 2011, for lacked respect is of the special term of thirty days, than of the ordinary term of sixty days, considered however that the interest to the impugnation of the internal actions of the procedure has been realized to the outcome of the same one, with the adoption of the award.

For analogous reasons the constitution of the Holding Mediterranean society also goes disregarded the exception of inammissibilità for backwardness of the censorships proposed adverse, argued in reason of the happened publication (also by publicity on the more important daily paper) of the deliberation of the Regional committee of 9 February 2010 that fixed the modalities of constitution of the society today contested.

It goes found in fact that the interest to the impugnation rises in reason of the fact that Mediterranean Holding takes part of the social compages of Company of the Islands and it is correlated directly to the award of the procedure from this last one achieved and object of the main resource.

The inammissibilità of the proposed impugnation is eccepita at last, with the added reasons, adverse the provision of Accountant Generale of the Sicily region of 12 October 2011, with which it is supplied controgaranzia for the which released guarantee, to the aims of the procedure de here, from Unicredit Bank in the interest of Company of the islands, as directed adverse a considered provision nonexistent.

The issue will be deepened during examination of the merit of the censorship reasons.

It goes immediately but found that, as it emerges from the note of Unicredit of 3 February 2012, in actions, and for which “the controgaranzia of the 12.10.2011 is given back” and from the note of Accountant Generale in 31 date January 2012 second which the action has been withdrawal object, to the date in which the added reasons they are forwarded for the notification to means mails (24 January the 2012) action was still existing, being supplied does not try some of the risalenza of the withdrawal to a moment precedence.

The supervened withdrawal, also being profitable improcedibile, the demand for cancellation of the action, for supervened deficiency of interest, do not exclude admissibility of the added reasons with which moreover, as a result of the taken part acquaintance of the action de quo, the censorships are restated and articulated in ulterior way (of which already to the fourth reason of the main resource) explained in relation to the guarantee introduced within the procedure from Company of the Islands.

B). The lacked exclusion from the procedure can therefore be proceeded to the examination of the censorships proposed with the adverse resource incident the recurrent one, which hire prejudicial character second the principles of which to the Plenary session of the Council of State of 7 April 2011 n. 4.

It assumes Company of the islands, recurrent incident in the first instance, than the Society of Sicilian Navigation it would have had to be excluded for to have introduced a evidently inferior offer to the value of the assets object of alienation characterized from the organs of the extraordinary administration.

The recurrent final offer of the main one, of 13 October 2011 (moreover in compliance with that of the 18 July 2011), previewed a total amount of euro 55.100.000, 00, but with payment delayed (euros 30.100.000, 00 successively to the placing of the contract, euro 10.000.000, 00 after three years, euro 7.500.000, 00 after six years and euros 7.500.00, 00 after eight years) with interests to match on the sums delayed pairs to the test of 1.5%.

It assumes recurrent incident that, discounting the offer with the indicated, comprehensive delay also of the interests, to the discount rate indicated in the invitation letter pairs to 6.7%, the effective amount would be pairs to euro 49.242,290, the 00, with a present value of the nominal price, to clearly of the delay interests, pairs to the euro 47.878.720, 00, therefore inferior at the best minimal indicated in the invitation letter, in relation to the skill of the independent appraiser on the fair market value of the company unit cession object.

The offer of Society of Sicilian Navigation would be set therefore in open and evident contrast with the dispositions of which to articles 62, codicil third, of I decree legislative 8 July 1999, n. 270 and 4, codicil fourth quater, of the bill 23 Decembers 2003, n. 347 and would have had therefore to be sure excluded from the procedure.

The thesis is not shared by the College.

The offered amount, also with reference to the interests prescribed for the sums delayed, is in compliance with the prescription of the procedure.

The application to the amounts for which the delay in the payment of the discount rate is previewed not is previewed in the letter of invitation to the aims of the quantification of the prescribed minimal amount to exclusion pain, which is reported to the nominal amount; while the compensating mechanism of the value of the sums whose payment is deferred in the time is entrusted to the system of the interests.

The explicit reference to the operation of reduction in price of the offered amount is previewed, in the letter of invitation to formulate the final (29.9.2011), “for a reason or purpose informative” binding offer and “in the within of the economic appraisal of the final offer”, while in no other action of the procedure makes reference the brought up-to-date value of the offer, rather than to that noun, to the aims of the verification of admissibility of the offer under the profile of the demanded minimal amount; quite, in explicit way, in the note of the advisor of the 26.7.2011, in actions, like in the successive one in date 13.9.2011, the update of the present value of the offers, for which payments delayed in the time, entrusted to the mechanism of the reduction in price to the indicated rate 6.7% are previewed (that it allows to assume the present value of relative credits to payments delayed in reason of the presumable price of cession offered from the bank system), express is only considered like criterion of appreciation of the convenience of the offers in a perspective of mere comparazione of the same ones.

Anyway, art. the 4 codicil 4 quater of the D.L. 347/2003, whereby prescribe that the cession cannot happen to an inferior price to that of market, seem to make reference own to the offered nominal price; cosicchè', in lack of a various and explicit indication in the lex specialis for the hypotheses of delayed payment, the extraordinary Commissioner could not have proceeded to the exclusion of the recurrent offer of the main one, to the stregua of the update of its value, also considered that the reduction in price of the delayed amounts sends back to merely eventual circumstances as the cession of the relative credits and the presumablly attainable price on the bank market.

With according to reason of incident resource, Company of the Islands assumes that the SNS offer would not be assisted by the guarantees previewed with the last letter of invitation, as not placed side by side from a valid and current surety bond regarding the delayed payment.

The reason is groundless.

The letter of invitation of the 29.9.2011, in outcome to which the last final binding offers are supplied, prescribed, to pain of inammissibilità, besides the letter of engagement, from a primary credit institution, to the release, within the date of transfer of Ramo, of an independent surety bond before demanded to integral guarantee of the punctual and exact payment of the delayed amounts, the production of a bank guarantee before demanded for Euro 5.000.000,00, to guarantee of the punctual and exact implementation of all the assumed engagements and the obligations with the Final Binding Offer, that is the delay of the bank guarantee already produced united to the offered precedence, with the precisazione that such delay is disposed in relation to the Final Binding Offer, until the day 29 October 2011.

The mentioned prescription only turns out reported but to the formulation case, from the competitors, of a final offered new, migliorativa regarding the precedence and permissible; for this last hypothesis in fact the invitation letter united imposed the reformulation of letters of engagement to the release of the surety bond before demanded to guarantee of the execution (a evidently reported to the new and greater offered amount) and new bank guarantee in support of irrevocability of the offer for 5.000.000,00 euros that is the delay of that already produced to the offered precedence, with the precisazione that the delay is disposed with reference to the last final binding offer until 29 October 2011.

For the hypothesis of lacked formulation an offered new migliorativa binding, like also for the new hypothesis offered for any inadmissible reason, instead, the letter established express that the last offer would have remained firm precedence and which postponed in 13 date september 2011.

Now, like evince clearly from the minutes of opening of the 13 envelopes of October 2011, society SNS has not intended, in outcome to the last letter of invitation, to formulate an offered new migliorativa, limiting itself to confirm the full validity and effectiveness of the 23 offer of May 2011, in with the documentation and gradually supplied clarifications.

It achieves some that it would not have been possible to characterize a cause of exclusion of the SNS from the procedure for the lacked production a new guarantee or of the delay only previewed for the hypothesis of offered new formulation migliorativa.

With the third reason of incident resource, then, Company of the Islands, premised that to the date of 21 March 2011 the only existing offer was own, assumes that, if, in compliance to recurrent considered how much from the main one with the first reason of resource, the College had to consider founded the thesis for which the reopenings of the terms for the presentation of the offers would not have been legitimate, with which iterated demands for presentation of migliorative offers, nobody pronounce in the merit would have however to be adopted, considered that by virtue of the same principle the procedure would have had then to be arrested since 21 March 2011, with consequent deficiency of recurrent interest of the main one to the acceptation of the reason in word.

The reason, express conditioned to the appraisals of the College on the censorship proposed with the first reason of the main resource, goes disregarded on a level with how much it will be said nearby.

The procedure continuation for the sale of the branch of company for which it is cause, in fact, is a procedure to former private negotiation art. 4 codicil fourth quater of the D.L. 347/2003 that, in exception to previewed how much from art. the 62 of D. Lgs. N. 270/1999, allows with the aims of the alienation the resource to the private negotiation with the single tie of the determination of the price of cession for a not inferior amount to the fair market value, like turning out from skill of primary institution financial institution, and in the respect of the transparency principles and not discrimination.

The successive ones and repeated determination of reopening of the terms and offered new admission are therefore compatible with the adopted system of selection. 4.

According to analogous considerations it also goes disregarded the quarter and last reason of incident resource with which legitimacy of the admission is contested to the SNS contest, as society subentrata to Ustica Lines to already under way procedure, when the originally fixed term for the offer already had expired.

The flexibility of the procedure previewed from art. the 4 codicil fourth quater returned in fact the which supervened subjective modifications of the offerers permissible, like also the presentation of offers from the participants who, in the earlier stage, had not introduced offered considered permissible.

C. Is therefore possible to proceed to the examination of the censorships proposed from recurrent main with the added resource and reasons.

Like already found, the first profiles of doglianza regard the presumed violation of the principles in matter of cession of the company branch, with detail reference to the transparency principles and not discrimination and at the best of the autovincolo.

It assumes, in synthesis, the recurrent one that the procedure would have had to conclude itself, with the award in its favor, to the sitting of the 18 July 2011 when, in compliance with the opinion of the advisor and of the advisers of the procedure, offer SNS was the only permissible offer and in compliance with the opinions of the lex specialis.

The thesis does not deserve sharing.

It is preliminarily necessary to shortly recall the normative dispositions that regulate the fattispecie, constituted from I decree legislative 8 July 1999, n. 270 and from the bill 23 Decembers 2003, n. 347, then converted with modifications from the law n. 39 of 2004. Moreover, own with specific care to the procedure in argument, finds the dispositions of which to the article 1 of the bill 5 August 2010, n. 125, in the definitive version that derives from the conversion law n. 163 of 2010.

According to the norms over recalled, an insolvent declared enterprise can be admitted from the Court to the procedure of extraordinary administration in case through the cession of the company unit, on the base of a program of prosecuzione of the exercise of the enterprise of not advanced duration to a year (program of cession of the complex or the company units) that is through the economic restructure and financial institution of the enterprise, on the base of a program of reorganization of not advanced duration to two years (restructure program), is possible to realize the result of the recovery of the economic balance of the entrepreneurial activity (d.lgs n. 270 of 1999, art. 2).

Within the sixty successive days to I decree of the Court of opening of the procedure the extraordinary commissioner, named by the Ministry of the Economic Development quickly after the declaration, is held to introduce to the Ministry a program written up second one of the cited alternative addresses over. Such program is written up under the vigilance of the Ministry of the economic development and must be written up in compliance with the addresses of industrial politics from the same one adopted “so as to safeguard the operating unit of the company units, taken into consideration the interests of creditors” (art. 55).

If the address of the cession of the complex or the company units is adopted, the program, besides the previewed indications of art. the 56, codicil 1, lett. a), b), c), d), must also indicate “the modalities of the cession, signaling the reached or acquired offers, let alone the forecasts in order to the satisfaction of creditors” (art. 56, codicil 2).

The execution of the program must be previamente authorized with decrees of the Ministry of the economic development, that it is held to supply, felt the committee of surveillance (named from the Minister of the industry according to art. the 45), within thirty days (art. 57).

The fulfillment of all the activities directed to the execution of the authorized program is task of extraordinary commissioner (art. 61, codicil 1), than in the hypothesis of alienation of companies it is held to ask the authorization for the Ministry of the economic development, that it supplies to emanate the relative provision after to have felt the committee of surveillance (art. 42).

The alienation is disciplined by the articles. 62 and 63 of the cited one I decree legislative n. 270 of 1999.

The value of the good to alienate must be preventively determined from or more experts named from the extraordinary commissioner; the alienation must be carried out in compliance with the forecasts of the authorized program, with forms adapted to the nature of the assets and finalized to the best one I realize, in compliance with the established Generali criteria from the Ministry. If the company, as it is if in species, is in exercise, the foretold appraisal must take into consideration the profit, even if negative, to the age of the esteem and in the successive biennium; the purchaser must obligate himself to continue in order at least a biennium the entrepreneurial activities and to maintain for the same period the established occupational levels to the action of the sale; the choice of the purchaser must be carried out considering, as well as of the amount of the offered price, of the reliability of the offerer and the plan of prosecuzione of the entrepreneurial activities from these introduced, also with regard to the guarantee of maintenance of the occupational levels.

The bill 23 Decembers 2003, n. 347 introduce some dispositions then details.

In particular, and for what it interests here, article 4, codicil fourth quater, for the case of the operating enterprises in the field of the services essential publics, affords the resource to the instrument of the private negotiation to the aims of the alienation, in the respect of the transparency principles and not discrimination and given that the cession price cannot be inferior to that of market like turning out from primary institution financial institution with function of independent expert.

The synthetically recalled normative complex turns out to design therefore to an institute finalized to the contemperamento of all the interests that rotate around the procedures of extraordinary administration: that of the creditors, that of the workers, but also the general interest to the conservation of the productive patrimony safeguarding the operating unit of the company units.

And all the legal stores places in being the extraordinary administration must be set online of functional coherence with the described objectives (see in purpose civil Cassation, Joined Sections, 27 May 2009, n. 12247).

In the event that it occupies to us, in compliance with the cession program, the cession of the branch of Siremar company has happened through the legal instrument of the private negotiation of which to article 4, codicil fourth quater, of bill 347/2003.

Saying instrument is characterized by a remarkable elasticity of the procedure, lacking in rigid ties of procedimentalizzazione of the administrative action, and oriented substantially to the attainment of the primary objectives which the cession of a branch of the company in extraordinary administration must second answer the teleological characterization of the institute as mentioned above outlined. The only express indicated procedimentale limit from the legislator is that relative to the respect of the principles of transparency and equal visibility.

In other words, the resource to the procedure of the private negotiation constitutes operating option that is characterized in terms of flexibility and is finalized to guarantee in the best possible way, through own the widest freedom from procedimentali outlines and ties, the massimizzazione of the functional objectives ex lege attributed to the extraordinary administration. Between these objectives there is certainly, and primariamente, the attainment of a cession price how much more elevated possible one.

In the event that it occupies to us, the procedure, like exposed in novellistic, is characterized by a series of reopenings of the terms times to allow with the participants the offered new formulation migliorative, own in the mentioned functional optical over, and the final price of cession effectively greater of that is initially proposed by (the two) offering societies.

The fact, therefore, than the organs of the administration they have repeatedly demanded of “throws again” the offerers does not constitute, in itself, a defect of legitimacy of the procedure, and the only verification to which Judging is called is that the several phases of the procedure always have been completely transparent and absolutely respectful of the equal visibility between the competitors.

This saying the College considers that the total activity of the organs of the extraordinary administration has been expression of an appreciable effort action to conjugate the requirements inherent to the principle of the respect of the parity of the parts with that of the massimizzazione of the functional scopes of the procedure.

The regulations of procedure, returned public since the first invitation to offer, express previewed the possibility for the extraordinary commissioner to interrupt or to recede from the negotiations, to suspend or to interrupt the procedure anytime, not to accept someone or all the proposals without obligation of specific motivation.

It cannot therefore be shared the thesis of recurrent part second which, in short, successively to the formulation of the first offers, the organs of the extraordinary administration more could not have started an ulterior phase of demands for migliorative offers, as it dictates chosen of the extraordinary administration, and the relative ministerial authorization, turned out allowed from the procedure chosen and totally coherent with the functional objectives persecuted, without for that same one violating the transparency principles and not discrimination, considered that all the offerers have been places in pairs conditions of participation (and offered new formulation migliorative) and that, as mentioned above said, the reopening of the terms for the formulation of new throws again cannot, within the procedure in word, for like normative disciplined, to imply in itself some violation of the confidence which laid by from every participant to the conclusion of the procedure, being exclusively put again to the organs preplaces the judgment of full satisfattività of the offers received regarding the objectives of realizes persecuted.

In other words, as long as the procedure is not concluded under license of the Ministry to the sale, that it presupposes a judgment on the adequacy of the offered price, to the aims of the corrected contemperamento of all the interests which the extraordinary administration is for which foreordained law, cannot assume some I legitimize confidence of the competitors to the award to the higher price, also when the offered price advanced lessened is prescribed, when, to the stregua of the elements emerged under procedure or however acquired, emerges the possibility of attainment of ulterior migliorative offers of purchase; provided that they always come guaranteed the parity conditions and transparency in I confront competitive but without the choice of the extraordinary administration to demand new “throws again” it can in itself be tacciata of anticoncorrenzialità.

Neither a similar confidence can be considered ingendered from the simple presentation from the extraordinary commissioner to the Ministry of the authorization to the sale (in the species taken part in date 1 september to SNS advantage) because the final judgment on the adequacy of the offered price can be considered only formed after the consistent opinion of all is taken part the organs of the procedure and the authorization of the competent Ministry.

It does not go moreover sottaciuto, o'clock in fact, as same the recurrent one has made use of the flexibility of the procedure and the reopening of the terms, considered that upon maturity of the first term (15 March 2011), like also of the second (5 April 2011) had upon maturity not introduced some offer.

Neither a violation of the principle of parity of conditions in I confront competitive can be traced, as instead it assumes recurrent part, in a presumed modification of the rules of the contest, introduced from the organs of the procedure successively to the sitting of the 18 July.

It goes remembered in fact that in that phase the offer of CDI, although economically advanced, was considered inadmissible only for being the engagement lend from the financial institution to assume the guarantee conditioned to a controgaranzia lend from the Sicily Region; and that, therefore, the new opening of the terms found rational where justification in the possibility of attainment of a advanced price regarding that offered from SNS the promised guarantee graves amended from the found defect.

The forecast, in the new letter of invitation, prescription more punctual on the modalities of presentation of the guarantee aimed therefore, coherently with the flexibility that characterizes the procedure here de, to the attainment - considered possible and likely - of a price better than sale, adequately guaranteed for the delayed part, without the new prescription could be considered precluded from the rules of the procedure or ties of respect of the parity of conditions.

The first reason of resource is, conclusive, groundless and goes therefore disregarded.

With according to resource reason the violation of the 23 dispositions is denounced by SNS of which to the art. second of the d.l. 112/08, converted in replaced L. 133/2008 like from art. the 15, codicil 1, lett. b) of the d.l. 135/09, converted with modifications in L. 166/2009.

It assumes the recurrent one that CDI, also being participated from a public body (Sicily Region), would be constituted without the observance of the procedure to public evidence, for the selection of the private associate, and without the ulterior respect of the prescription of which to the cited norm, although risen just in sight of the cession of Siremar and, therefore, for the confidence of the exercised public service from this last one.

The reason is permissible and, however, groundless.

It does not assume relief, to the aims of the deducted inammissibilità of the censorship, the circumstance, indicated from the defense of CDI, the happened abrogation of the norms cited, as a result of abrogative referendum, for effect of the d.p.r. 18 July 2011 n. 11318.

In fact, the happened abrogation of the special dispositions in matter of direct confidence of the services publics implies the immediate applicabilità in the Italian ordering of the communitarian norm on the point and, therefore, the configurabilità of the confidence in house only in favour of society to entirely public capital (cfr. Regional Administrative Court Liguria II, 1.2.2012 n. 225).

Moreover, to the date of the last letter of invitation to I throw again, and of the successive award, they were already in vigor the new norms introduced from the bill n. 138/2011, converted in the law n. 148/2011.

Where, therefore, if of species a direct confidence of the management of the public service was configurabile, the fondatezza of the censorship would be however to verify to the stregua of the cited norms.

Neither it is true that the reason would be inadmissible for deficiency of interest, considered that, where the indicated norm was considered applicable to the species case, legitimacy of the confidence of the service to CDI would presuppose just the verification of legitimacy of the relative modalities of constitution regarding the indicated parameters.

Rather, own the legal qualification of the fattispecie induces the College to conclude for the infondatezza of the doglianza.

The norms of which the violation is complained, in fact, directly discipline the fattispecie of the confidence c.d in house of services publics - and that is without resource to selective procedure to public evidence - to mixed societies with public and private participation.

If of species instead the procedure it has regarded the cession of a company branch, second the norms in matter of extraordinary administration, through I confront competitive, however in the forms of the private negotiation, to which they are invited to participate more concurrent subjects.

And the confidence in house constitutes, in itself, alternative and exceptional instrument of direct confidence of the service, (in which the competitive moment remains entrusted to the performance of the public evidence in the selection of the private associate of the affidatario subject) as such alternative one regarding the other systems, comprised the private negotiation there, however based on a selective competition.

With the third party of the reasons of the main resource, the recurrent one is sorry the “violation and forges application of the dispositions of which to articles 57 and ss. of bill 112/08 in logon with the dispositions of successive article 19 ter of bill and of the agreement of program between 135/09 government and Sicily Region of 3. 2,2009”. Moreover, the violation of regulations the EEC 3577/92 for like understood comes also deducted from the Italian legislation.

More in particular, after to have remembered that, according to bill 25 june 2008 n. 112, the tasks of relative programming and administration to the services of marine cabotage are exercised by the E regions, therefore, reminded to the existence of an agreement of program between the Sicily Region and the Italian Government, of 3 November 2009, the recurrent society deduces that the Sicily Region could not have constituted the Company of the Islands neither to enter operatingly in the management of the affidatari legal subjects - to means of the acquisition of Siremar - of the convention of service for the management of the marine cabotage of regional interest.

The thesis, like formulated, cannot be shared from the College.

It goes found, in the first instance, that the Sicily Region participates indirectly to the social compages of CDI and in minority way, based on the participation to the Holding Mediterranean capital stock of Navigation spa, that it constitutes one of the subjects associated in CDI.

That premising, does not consider the sussistano College that profiles of incompatibility between said participation to the compages of the subject assignee, called as such to the management of the public service already managed from Siremar, and the title of tasks of programming, vigilance and control.

In general terms, in fact, in our ordinamentale system, the title in head to the public body of Generali functions of vigilance and control does not exclude the possibility, for the same agency, of participation to the compages of the social subject (mixed society in minority or quite majority participation public) affidatario of the service and, as such, called to managerial tasks. It dictates incompatibility is not configurabile not even if, plus end, of direct confidence of the service to a subject to public participation total: various arguing, it would have to conclude for the impossibility for the subject titular public of functions Generali of programming and control of participation to the management in the various forms instead previewed from the ordering, when instead in our ordering such possibility it is admitted for definition.

The College passes therefore to examine the fourth reason of resource, like integrated with the premise of added reasons as a result of the supervened acquaintance of the document with they appealled.

It comes deducted the violation and the false application of the principles of which to art. the 107 TFUE in topic of aids of art. the 119 state and of Cost., the violation and the false application of the principles of which to the T.U. 163/06, the excess to be able for travesty of the facts, forge motivation and forge cause.

The recurrent one complains the bastardy of the award in favour of CDI in reason of the fact that the engagement to the surety bond before demanded, for the amounts for which a delayed payment is offered, would be conditioned to a controgaranzia lend by Sicily Region for the entire amount. The performance of the controgaranzia would have been, second the recurrent one, deprived of expressed autorizzativa deliberation of the agency, of relative cover financial institution and, above all, it would have implied an undue aid of state, with consequent alteration of the principles of competition parity and not discrimination between the participants as determining to the aims of the formulation of the offer and the assumption of relative the obligation of guarantee from the financial institution Unicredit.

They find, in purpose, the resistant ones that the last final binding offer of CDI, in outcome literally of invitation of the 29.9.2011, various from allegated how much from recurrent part, it is perfectly in compliance with the prescription of the last regulations contained in the invitation to offer also with reference to the performance of the guarantees; and that, in particular, the engagement to supply the guarantee assumed from Unicredit was not subordinate to ties or conditions of kind.

With the added reasons, but, the recurrent one appeals the provision of Accountant Generale of the Sicily Region in date 12 October 2011 with which it is assumed, regarding Unicredit, controgaranzia for the entire amount object of the engagement assumed from the financial institution; and of which the recurrent one assumes to be come to acquaintance only during the course of the judgment. It insists therefore in deducing the violation of the principles of parity of competitive conditions between the participants to the procedure, in violation of the art. the 4 norms of which to codicil 4 quater of the D.L. 347/2003, of the prescription of which literally of invitation, and from the primary norms in matter of state aids.

They resist ulteriorly against interested producing in famous judgment of Accountant Generale of the Sicily Region in date 31 January 2012, with which the provision of 12 October 2011 like nonexistent and lacking in effectiveness is defined because object of a provision of withdrawal accepted from Unicredit spa, and note of Unicredit in 3 date February 2012, with which it is specified that the controgaranzia of the 12.10.2012 “… it is given back” and that therefore “the guarantee which released from the Bank in the interest of Company of the Islands spa and in favour of the Siremar in A.S is not bound to the controgaranzia from the Sicilian Region”.

They assume therefore resistant the inammissibilità and the infondatezza of the added reasons for being turned adverse a nonexistent action and that, however, it would not have conditioned in some way the release of the guarantee from the financial institution.

That premised College, pretermettendo the examination of the relative issues to the modalities of performance of the controgaranzia from Sicily Region and of selection of the credit institution, examines, for its absorbent character, the primary issue of the conformity of the guarantees produced from CDI united to the last migliorativa offer to the prescription of the invitation letter and to the art. the 4 garnishments of which to codicil 4 quater of the d.l.347/2003, proceeding to the verification of the compatibility of the participation of the Sicily region - in the form of the performance of appropriate controgaranzia in favour of the financial institution Unicredit that has undertaken to guarantee with bank surety bond before demanded the amounts offered and delayed in the payment of CDI - with the communitarian and national norms on the aids of State.

Where in fact said participation from a public body, moreover directly interested to the outcomes of the procedure as controlling Mediterranean Holding spa, associate of CDI, it had to be considered in contrast with the principles in matter of state aids, an alteration of the conditions of competitive parities between the participants would have come true in the procedure - and therefore the violation of the cited art. the 4 limits of which to codicil 4 quater - to prescind less from every consideration in order to the effectiveness, determining or, of the undue aid on the outcomes of the procedure.

O'clock in fact the College finds preliminarily that, according to the documentation produced in date 12 October 2011, therefore the day precedence to the definition of the procedure in favour of CDI, the Sicily Region assumed regarding Unicredit spa, a defined action “amending of the independent guarantee” with which it was restated and it was modified (in relation to the modifications taken part with the last migliorativa offer of CDI for the amounts in it previewed and whose payment is delayed) the precedence controgaranzia.

Nelle premised of the action law that “the Bank has been made available to the emission of the guarantee” subordinately to the delivery from Sicily region of an independent guarantee in favor of the same, escutibile Bank before demanded of the Bank and for the entire amount guaranteed from the Bank within the procedure of sale of Siremar. Analogous to art. the 1 the content of controgaranzia is restated of the obligation assumed from Sicily Region regarding Unicredit for the entire offered amount as deferred price.

Not there is doubt, to seem of the College, therefore that also the last offer of CDI is assisted by a guarantee of Unicredit that joined in a relationship of legal connection with the independent guarantee in its turn returned from Sicily Region for the entire guaranteed amount.

The relationship of functional connection emerges in indubitable way from the content of the action of 12 October 2011 and turns out foreordained in order to already allow the performance of the guarantee from Unicredit in favour of beneficiary CDI, confirming and modifying the controgaranzia returned in the precedence phase of the procedure and considered from the organs of the extraordinary administration not in compliance with the prescription of the procedure.

It achieves some that, although the fideiussoria declaration returned from Unicredit and produced in the procedure to the final offer of CDI more explicitly was united not conditioned to the controgaranzia been profitable by the Sicilian Region, the relative engagement is assumed by Unicredit however in breast to a connection of guarantee stores that ended substantially with placing at the expense of the Sicily Region, through the subscription of 12 the independent guarantee of October, the obligation of guarantee for the entire amount of the price whose payment was previewed like differed.

The advanced circumstance to all purposes and effects documentarily turns out tried and not refutation from the successive documentary productions of CDI that, indeed, of it constitute ulterior confirmation. It is the declaration of 31 January 2012 of Accountant Generale of the Region, in which it is spoken about withdrawal of the action of 12 October, like the Unicredit note of 3 February 2012, in which reference to the restitution of the controgaranzia is made of the 12.10.2011, they presuppose the existence of the action de quo that, in lack of various contrary test, it must presume still existing to the date of opening of the containing envelopes the final offers (than remembers has exactly happened the successive day to the release of the controgaranzia).

The revocation or the withdrawal of an action of assumption of obligation in confronts of the beneficiary is in fact effective from the moment of its acceptance from the same beneficiary; while of said acceptance and its risalenza to a moment precedence to the definition of the procedure some test from the resistant ones is not supplied.

Although therefore the existence of the controgaranzia more is not returned note to the organs of the procedure, as the guarantee of Unicredit is not more declared conditioned to the content of the controgaranzia, the assessed existence of the foretold one controgaranzia to the action of original assumption of the engagement from Unicredit within the procedure for the sale of Siremar, it places however the problem of its compatibility with the dispositions in matter of state aids, in order to verify if the performance of dictates controgaranzia has been resolved or less in an alteration of the parity of conditions in I confront competitive between the offerers and, therefore, if it is perpetrated or less the violation of the norm of which to art. the 4 codicil fourth quater of the D.L n. 347/1993.

In purpose it goes remembered how much had from the article 107 TFUE (former art. 87 TCE), according to which: “Except exceptions contemplated from the treatys, are incompatible with the home market, in so far as they affect the exchanges between Member States, the Aids granted from the States, that is by means of state resources, under any form that, favoring some enterprises or some productions, forge or threaten to forge the competition”.

The consolidated jurisprudence of the Law court EU (between the many, reunited sentence 15 june 2006, causes Liquid C-393/04 and C-41/05, Air, point 28), connect the subsistence of an aid of state to the attainment, from the beneficiary of the Aid, of an advantage of economic character graces to a distribution from the State or through state resources; the benefit must be selective, having favorite or more enterprises in particular and must be of nature such to alter the exchanges between the Member States and to forge, also potentially, the competition.

They re-enter in the prohibited fattispecie, and therefore the attributed aids constitute aid of State also from the regional or local agencies of the Member States, independently from their charter and their denomination (in such sense cfr. EC Court of Justice, sentence 14 October 1987, in cause 248/84, point 17 Germany/Commission, and, more recently, 6 sentence september 2006, C-88/03 cause, Portugal/Commission, point 55).

During concrete application of such norm, moreover, the c.d. “discriminatory facility” is ravvisata in case of distributions not only directed, but also if of aids constituted to means of guarantee performances.

The performance of guarantees to cargo also of regional or local agencies is susceptible to constitute aid of state as suitable to alter the competition through distributions of public money that are resolved in an advantage in favor of or more enterprises in I confront competitive.

And it is up to the national judge to verify that in the fattispecie to its examination state aids have not come true “” such to have forgeeed or also only threatened to forge the competition (EC Court of Justice sez. IV sentence 10 june 2010 n. 140).

In purpose the College remembers a meaningful jurisprudential arrest of the EC Court of Justice in the sentence 5 October 2000, C-288/96 cause, Germany/Commission (“Jadekost”), whereby was recognized the presence of an aid of State in the release of a state guarantee, in occasion of the acquisition of a financing from a private society, “considered that no credit institution would have accepted to grant the loan without a state guarantee, and of the assumed risk extremely elevated from the guarantor, the controversial guarantee constituted the foundation for the concession of the financing, whose total amount could be considered an aid”.

Fact therefore that through the performance of guarantee at the expense of the State the beneficiary can obtain a financing, which would otherwise not have been able to approach, constitutes a connected economic advantage to an aid of illegitimate state.

Analogous, it considers the College, it can be considered to sussistere an aid of state in the performance of guarantee at the expense of the State (or the region or of other local authority) based on which the beneficiary obtains a various benefit however appreciable in economic terms, like a bank guarantee, finalized to assist an offer in a public contest or other implying procedure I confront competitive, when he turns out that the foretold benefit would not have been attainable to prescind from the public distribution.

Now, if of species, not there is doubt that the engagement of guarantee assumed from Unicredit in favour of CDI, in support of the supply and demand of Siremar in a.s for the delayed part of price, has allowed with CDI to introduce an offer in compliance with the prescription of the invitation letter and, above all, than own by virtue of the guarantee performance the formulation of a decidedly advanced offer to the minimal price of purchase has been possible, with the forecast of a delay of an important part of the offered price.

Moreover the existence of the controgaranzia has unavoidably influenced on the cost faced from CDI in order to obtain the independent guarantee. The assumption of the risk, in fact, must in principle be rewarded with an adequate fee (prize) that normally it is correlated to the entity of the guaranteed risk; the cancellation or also only the attenuation of the risk, in reason of the effects of a controgaranzia, reasonably affects the cost of the guarantee resolving itself, consequently, in an economic advantage for the beneficiary (neither turns out that CDI has corresponded some price in favour of the region like fee for the controgaranzia).

The delay in the payment, grantable thanks to the guarantee engagement, constitutes then, in itself, an economically appreciable advantage in the immediate one.

Neither there is doubt, on a level with all exposed how much over, than the fideiussorio engagement it is assumed by Unicredit in favour of CDI, own in reason of the existence and the returned effectiveness of the controgaranzia from the Sicily Region, although the relationship of connection between the two stores is not declared to the organs of the extraordinary administration.

The fact that the guarantee returned from the Sicily region constitutes an obligation of guarantee “before demanded”, without benefit of pre-emptive examination of the beneficiary and with expressed exclusion of the benefits does not go moreover sottaciuto of which to the application of the articles. 1939, 1949, 1950, 1955, 1956, 1957 of the civil code, qualificabile therefore in terms of immediate vincolatività and of absolute abstractness of the relationship of guarantee regarding the guaranteed relationship; with the consequence that the real weight of the guarantee that has assisted the CDI offer, in reason of the legal connection between the guarantee returned from Unicredit and the controgaranzia of the Sicily Region, is weighed on in short the Sicily Region.

Where to this the consideration that the controgaranzia it is profitable for the integral amount of the guaranteed price, therefore in a evidently not correlated measure to the measure of the participation of the Sicily Region joins to the social Holding Mediterranean compages, in its turn CDI partner, cannot reasonably be revoked in doubt like the performance of guarantee from the Sicily Region has been resolved in an economic advantage for CDI and, before still, like it has implied an alteration of the parity of conditions of I confront competitive of the participants to the procedure. The possibility to retrieve on the bank market independent guarantees for greater amounts is in fact directly correlated circumstance to the ability to the enterprises to formulate offered economic migliorative and to concur therefore to the award with greater chance of success.

The advantage connected to the aid of state, returned through the performance of the guarantee, therefore, sussiste for the same fact that is assumed the guarantee obligation and realizes in the same moment in which the guarantee it is perfected, to prescind therefore from the fact that the guarantor comes effectively examined or supplies to the payment.

It achieves some that the circumstance that the controgaranzia of the region is not examined and has been, to the award, which revoked successively turns out insignificant.

The assessed subsistence of a state aid, not preventively notified with the Commission, allows with the College to consider the fondatezza of the denounced violation of the principle of parity of competitive conditions between the participants to the procedure de here, in contrast with how much instead prescribed from art. the 4 codicil 4 quater of the D.L. 347 of 1993.

Therefore the fourth reason of resource is founded, like ulteriorly articulate and specified with the added reasons; that it allows with the College to reach to one pronounces of partial acceptation of the encumbrance and cancellation of the actions, the successive ones literally of the 29 invitation of september 2011, that they have lead to the cession of Siremar in favour of CDI second the last binding migliorativa offer to the 13 sitting of October 2011.

It cannot instead be received the question of cancellation and/or declaration of inefficiency of the stipulated contract, considered that the dispositions of which to the articles. 121 and 122 of the code of the process does not find application to out of the judgments of which to art. the 120 between which, for exposed how much over, the College does not consider that the fattispecie can be numbered for which it is cause.

Neither the automatic rifle can be declared sub income of the recurrent society in the contract, considered the peculiarity of the procedure of the described private negotiation over, than it does not imply some obligation of award uncoupled from the discretionary appraisal of adequacy and satisfattività of the offered price, put again to the competent organs; appraisal to the state taken part in does not confront of the SNS offer.

The risen ones of the stipulated contract will follow therefore the Generali principles, not being able not even Judging, for how much over, to declare the only partial effectiveness also of the contract based on the specific one to be able of appraisal rimessogli from art. the 122 cit.

It goes, at last, rejected the question of compensation of the damage.

The partial acceptation of the resource, in the mentioned terms over, sends back to a partial renovation of the procedure and it does not leave to evidence a damage for lacked award, considered that not sussistono the foundations for the univocal and sure award in favour of the recurrent one.

Neither some damage for loss of chance can be assumed, considered that the recurrent one is not excluded by the procedure and is in conditions for concurring, if of renovation of the appealled actions, for the award. Moreover, the lack of criteria binding objectives and for the location of the private contractor - and, on the contrary, the subsistence of a wide margin of discretionary appraisal in head to yielding - excludes every possibility of appraisal from the Judge, in probability terms, order to the definitive outcome of the procedure.

Conclusive the resource goes received in the single indicated limits over. The judgment expenses can be entirely compensated regarding Siremar in A.S and of the resistant Ministry; for the principle of the soccombenza they go instead mail, for the remaining part, to cargo in solid of Company of the Islands and Mediterranean Holding spa and liquidated in total euros 10,000 (ten thousand euros) beyond law accessories.

P.Q.M.

The Regional administrative court for the Latium (Terza Ter Section), definitively pronouncing on the resource, like in proposed epigraph, receives it in the established limits partially motivates and, for the effect, he cancels the single actions indicated there.

It compensates the expenses of the judgment regarding Siremar in a.s and of the resistant Ministry; sentence in solid Company of the Islands and Holding Mediterranean of the remaining Navigation spa to the payment of expenses that liquid as partially it motivates.

It orders that sentence anticipates is executed by the administrative authority.

So decided in Rome in the Council Chamber of the day 27 April 2012 with the participation of the magistrates:

Giuseppe Daniele, PresidentCarlo Taglienti, CouncilmanGiampiero Lo Presti, Councilman, Drafter

THE DRAFTER

THE PRESIDENT