HTML PUBLIC "-//W3C//DTD HTML 4.01 Transitional//EN"L 221/8
EN
Official Journal of the European Union
27.8.2011
COMMISSION DECISION
of 29 June 2011
on measure SA.27106 (C 13/09 — ex N 614/08) which France is planning to implement for ports
(notified under document C(2011) 4391)
(Only the French text is authentic)
(Text with EEA relevance)
(2011/519/EU)
THE EUROPEAN COMMISSION,
as a basis for calculating the local tax paid by private
operators taking over the port-handling equipment, and
the possibility for the local authorities managing sea
ports to exempt handling companies from business tax
Having regard to the Treaty on the Functioning of the European
for a period of 6 years.
Union, and in particular Article 108(2), first subparagraph,
thereof,
(3) By
letter
of
11
December
2008,
the
Commission
asked
the French authorities to provide additional information,
Having regard to the Agreement on the European Economic
not only on the tax arrangements notified but also on
Area ( 1 ), and in particular Article 62(1)(a) thereof,
the transfer by the major sea ports of specific port-
handling equipment and facilities. The deadline for
replying was extended to 9 February 2009 at the
request of the French authorities.
Having called on interested parties to submit their comments ( 2 )
pursuant to the first subparagraph of Article 108(2) of the
Treaty on the Functioning of the European Union (TFEU) ( 3 )
and having regard to their comments,
(4) A
meeting
between
the
French
authorities
and
Commission representatives took place on 28 January
2009. By letter of 10 February 2009, the French
authorities sent the Commission the information
Whereas:
requested.
1. PROCEDURE
(5) By
letter
of
9
April
2009
(D/2165)
the
Commission
(1) By
letter
of
4
December
2008,
the
French
authorities
notified the French authorities of its decision of 8 April
notified, pursuant to Article 108(3) of the Treaty on
2009 to initiate the formal investigation procedure
the Functioning of the European Union (TFEU), an aid
pursuant to Article 108(2) of the TFEU. The decision
scheme consisting of tax measures to underpin the port
was published in the Official Journal of the European
reform set out in Law No 2008-660 of 4 July 2008 ( 4 ).
Union ( 5 ). The Commission’s decision concerns the tax
The aid was registered under number N 614/08.
arrangements notified and also the transfer by the
major seaports of specific port-handling equipment and
facilities. In it, the Commission invited France and
interested parties to submit their comments within a
(2) The
tax
arrangements
notified
were
intended
to
underpin
certain time limit.
the transfer of port-handling equipment to private
operators as provided for under the reform. The
arrangements consisted of two measures: a diminishing
reduction over a five-year period of the rental value used
(6) The
Commission
received
the
French
authorities’
comments on 11 May 2009 (A/18191). It also received
( 1 ) OJ L 1, 3.1.1994, p. 3.
comments within the time limit from one interested
( 2 ) OJ C 122, 30.5.2009, p. 16.
party, the European Sea Ports Organisation (ESPO).
( 3 ) From 1 December 2009, Articles 87 and 88 of the EC Treaty have
become Articles 107 and 108 of the Treaty on the Functioning of
ESPO’s comments were forwarded to the French
the European Union (TFEU). The provisions laid down in the
authorities by letter of 16 July 2009 (D/60307). The
respective articles are identical in both cases. For the purposes of
latter’s comments were received by letter dated
this Decision, references to Articles 107 and 108 TFEU should be
27 August 2009 (A/28446).
understood as references to Articles 87 and 88 of the EC Treaty
where appropriate.
( 4 ) French Official Gazette (JORF) No 0156, 5.7.2008.
( 5 ) OJ C 122, 30.5.2009, p. 16.

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EN
27.8.2011 Official
Journal
of
the
European
Union L
221/9
(7) A
meeting
between
the
French
authorities
and (12) The
updated
figures
for
the
tax
benefits
received
showed
Commission representatives took place on
that, for three of the companies concerned, the tax relief
30 November 2009. By letters of 25 January 2010
was lower than the threshold of two hundred thousand
(A/3263) and of 24 March 2010 (A/5136), the French
euro over a consecutive period of three fiscal years set
authorities sent the Commission additional information.
out in Commission Regulation (EC) No 1998/2006 of
15 December 2006 on the application of Articles 87
and 88 of the Treaty to de minimis aid ( 8 ). However,
the same did not apply to the fourth company.
(8) By
letter
of
9
June
2010
(D/7519)
and
in
the
context
of
the reform of business tax in France, the Commission
asked the French authorities to provide additional
(13) In
this
context,
and
following
various
contacts
with
the
information. The purpose of this letter from the
Commission, the French authorities decided to limit the
Commission was to obtain clarification on the impact
tax benefit for companies under the measure set out in
on the notified arrangements of the abolition of
recital 11 to the threshold of the Commission Regulation
business tax and the procedural consequences of this.
(EC) No 1998/2006, subject to the conditions laid down
therein.
(9) By
letter
dated
2
July
2010,
the
French
authorities (14) Thus
by
letter
of
20
January
2011,
the
French
authorities
requested an extension of the deadline for replying. The
informed the Commission of the adoption of Article 36
Commission received the reply from the French
of Law No 2010-1658 of 29 December 2010 on the
authorities by letter of 4 August 2010 (A/11533).
supplementary budget for 2010 ( 9 ), which makes the
diminishing tax reduction set out in the port reform
subject to compliance with Regulation (EC)
No 1998/2006. The French authorities also informed
the Commission of the withdrawal of their notification
concerning this tax aspect of the port reform.
(10) In this letter, the French authorities informed the
Commission that they were withdrawing their notifi
cation of the tax measure as regards the possibility for
the local authorities managing sea ports to exempt
handling companies from business tax for a period of
(15) The
Commission
takes
note
of
the
withdrawal
by
the
not more than 6 years. Under this measure, it was
French authorities of the notification of all the tax
possible, under certain conditions, from 2010 to 2015,
arrangements notified. This Decision concerns only the
to exclude the rental value of specific port-handling
procedure for transferring specific port-handling
equipment and facilities from the calculation of
equipment and facilities that was the subject of the
business tax. This possibility had now become irrelevant
Commission’s decision of 8 April 2009. This Decision
given the abolition of business tax and had in fact been
does not in any way concern the conditions for
repealed in the 2010 budget.
operating specific port-handling equipment and facilities
before or after they have been transferred.
(11) As regards the part of the notification referring to the
2. DESCRIPTION OF THE MEASURE INVESTIGATED
diminishing reduction, limited in time, of the rental value
used to establish local taxes to be paid by private
2.1. Background
operators taking over large sea port equipment and
facilities, the French authorities stated in their letter of
(16) The measure at issue is part of the reform introduced by
the port reform law (
2 July 2010 that this reduction also applied to the land

10 ). The purpose of the reform is to
improve the performance and competitiveness of French
tax paid by companies under the regional business tax ( 6 )
sea ports (Dunkirk, Le Havre, Nantes Saint Nazaire, La
which replaces business tax. The French authorities
Rochelle, Bordeaux and Marseilles).
passed on to the Commission the names of four
companies ( 7 ) benefiting under this measure and the
amount of the resulting tax benefit for each one.
( 8 ) OJ L 379, 28.12.2006, p. 5.
( 9 ) This provision amending Article 1518 A bis of the General
Taxation Code on the introduction of local taxes came into force
( 6 ) Under Law No 2009-1673 of 30 December 2009 on the budget for
on 1 January 2011 and thus applies from the first year of
2010 (JORF No 0303 of 31 December 2009), a regional business
exemption. The following subparagraph has been added to
tax was introduced consisting of a land tax on companies and a levy
Article 1518 A bis: ‘Granting of this reduction is subject to
on the added value of companies.
compliance with Commission Regulation (EC) No 1998/2006 of
( 7 ) The companies are: Société d’quipement du Terminal de Normandie
15 December 2006 on the application of Articles 87 and 88 of
(SETN), Générale de Manutention Portuaire (GMP), Compagnie
the Treaty to de minimis aid.’
Nouvelle de Manutention portuaire (CNMP) and STMC6.
( 10 ) Law No 2008-660 of 4 July 2008 on port reform (see footnote 4).

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L 221/10
EN
Official Journal of the European Union
27.8.2011
(17) In
this
context,
the
law
on
port
reform
is
aimed
at:
which they will transfer to private companies under a
sales procedure set out in Article 9 of the law on port
reform.
— redefining the missions of the autonomous ports
which, in mainland France, will become the ‘major
sea ports’ ( 11 );
(21) Under
this
measure
( 12 ), the procedure for selling the
handling equipment and transferring the property rights
attached to it consists of several stages:
— modernising governance of the major sea ports,
— Initially, the major sea port must negotiate the
arrangements for transferring the handling
— organising coordination between ports with the same
equipment with the operators that regularly use the
hinterland or on the same inland waterway axis,
port services or have made significant investments in
the terminal,
— simplifying and rationalising port-handling in line
with the main European ports, with the introduction
of integrated terminal operators responsible for all
— If there are no operators or if the negotiations are not
handling operations,
successfully concluded within 3 months, the major
sea port must publish an invitation to tender
following a transparent, non-discriminatory
procedure,
(18) The
missions
of
the
major
sea
ports
will
be
redirected
to
management activities (security, safety and port police)
and to tasks relating to renovation of the port area.
However, integrated terminal operators will be
responsible for all handling operations in order to
— If the tendering procedure proves fruitless and if the
enhance the efficiency of these activities.
port’s strategic plan provides for this, the port can set
up a subsidiary to which it can entrust the activity in
question. A new tendering procedure must be
organised at the end of a five-year period. Terminal
contracts must be concluded with the successful
candidates after the tendering procedure.
(19) The
French
authorities
explained
that
the
transfer
to
private operators of the port-handling activities still
carried out by the major sea ports under a procedure
( 12 ) ‘I. — The procedure for selling the equipment referred to in
Article 7 and transferring the property rights attached to it is as
for the sale of equipment in the major maritime ports
follows: If one or more operators have already invested in the
formed part of this drive to simplify and streamline port-
terminal or have, as regular users of the equipment, handled
handling operations. They also said that the reform
significant traffic at this terminal, the negotiations for the transfer
would bring the French system closer to the European
will, at their request, be conducted with them. If there are no
model where the functions of the port authority and port
operators as defined in paragraph 1, or if the negotiations have
operator were clearly distinguished and where the latter
not been successfully concluded within 3 months of the adoption
of the strategic plan or decision referred to in Article 8, the major
was in most cases a private company.
sea port must publish an invitation to tender. It must then
negotiate freely with the applicants, who must be selected by
means of a transparent, non-discriminatory procedure. Following
these negotiations, the major sea port chooses the operator and
concludes a terminal contract. The contract, equivalent to an auth
orisation to occupy public property, can contain traffic targets. If
2.2. The procedure for transferring equipment
the tendering procedure referred to in paragraph 2 proves
unfruitful, and if the strategic plan provides for this, the major
(20) The
major
sea
ports
will
stop
operating
specific
port-
sea port must entrust the operations to a subsidiary for a period
handling equipment and facilities (‘handling equipment’),
not exceeding 5 years. Following this period, the port must publish
a new invitation to tender. If a further invitation proves fruitless,
the activity must continue to be performed by the subsidiary,
( 11 ) Following this reform, sea ports will be classified in two categories:
provided that this is set out in the strategic plan. The process
major sea ports (the former autonomous ports) and the other
must be carried out as many times as is necessary within a
‘decentralised’ commercial ports under the responsibility of local
period of not more than 5 years each time until the tendering
authorities.
procedure is successful.’

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EN
27.8.2011 Official
Journal
of
the
European
Union L
221/11
(22) Under
Article
9
of
the
port
reform
law,
a
national
inde
(28) Accordingly,
the Commission decided to initiate the
pendent committee, the National Committee for the
formal investigation procedure in order to allay its
Assessment of Port Equipment Transfers (CNECOP), is
doubts both as to whether the handling equipment
tasked with ensuring the smooth functioning and trans
transfer procedure constituted state aid and as to its
parency of the equipment transfer procedure ( 13 ). Its role
compatibility with the internal market.
is to issue an opinion on the assessment of the
equipment before it is transferred. In this context, it
must take account of economic balance and the
prospects for developing the business. For the purposes
of this evaluation, the CNECOP can also call in an expert
to estimate the value of the equipment.
4. COMMENTS FROM THE FRENCH AUTHORITIES
(29) As
regards
the
nature
of
the
opinion
issued
by
the
CNECOP, the French authorities pointed out that this
committee consists of four independent members,
(23) The
CNECOP’s
opinions
are
based
on
the
draft
sales
including the chairman, appointed from among the
deeds which must be included in the file communicated
judges in the Court of Auditors by its First President,
by the chairmen of the boards of major sea ports
and that it issues an opinion on cases of public
pursuant to Article 9 of the port reform law. These
equipment transfers submitted to it by the chairmen of
drafts contain a description of the equipment to be
the boards of the major sea ports. These cases comprise a
sold, their price and the financing conditions.
description of the direct agreement procedure, a list of
the properties transferred, the draft sales deed stating in
particular the envisaged price and the conditions for
operating the terminal.
(24) No
final
sales
deed
can
be
signed
without
a
prior
opinion
by the CNECOP. This is a simple opinion (non-binding)
published at national and local levels.
(30) The
French
authorities
also
pointed
out
that
the
CNECOP
(25) The
members
of
the
CNECOP
include
one
judge
from
is, in particular, tasked with ensuring, in line with Article
the Court of Auditors, one representative of local
L. 3211-18 of the General Code on Public Authority
authorities and one person with professional experience
Property, that public equipment will not be transferred
of ports. The duties of a CNECOP member are incom
‘free of charge or at a lower price than the market price’,
patible with those inherent in another position of
thus complying with the requirement of transfer of
responsibility in the management or supervision of
public property at the market price.
major sea ports or handling companies purchasing
public equipment, for the entire contract period and
for a period of 5 years after its cessation.
(31) This committee issues a simple opinion which is
published to prevent transfers at a price lower than the
3. GROUNDS FOR INITIATING THE FORMAL INVESTI
market price. The authorities undertake to ensure that the
GATION PROCEDURE
opinion is published on the website and in the official
gazette of the Ministry of Ecology, Energy, Sustainable
(26) In its decision of 8 April 2009, the Commission
Development and Regional Development, and at local
considered that it could not rule out that transferring
level, by means of notices posted in each major sea
port-handling equipment through a direct agreement
port. The French authorities stated that they would also
procedure could be considered a form of state aid. The
send a letter to each chairman of the board of a major
Commission noted, in this respect, that the CNECOP
sea port (the director of which is responsible for
opinion was not binding. Given this, the Commission
protecting the interests of the port), reminding them of
expressed doubts as to whether the equipment would
the CNECOP’s rules of procedure and the rules for trans
be sold at the market price. It also questioned the inde
ferring public property, with which they must comply.
pendence of the CNECOP members.
(27) When checking this handling equipment transfer
procedure for compatibility with the internal market,
(32) The
French
authorities
added
that,
pursuant
to
Article
L.
the Commission considered that none of the derogations
313-6 of the Public Finance Courts Code, the chairmen
set out in Article 107(2) and (3) TFEU seemed applicable
of the boards can be fined up to double the amount of
in this case.
the gross annual salary they are receiving at the date of
the infringement for any unjustified advantage which
they may have attempted to procure or have procured
( 13 ) The functioning arrangements of CNECOP are laid down in Articles
for a third party, either financial or in kind, causing
6 and 7 of Decree No 2008-1032 of 9 October 2008 imple
menting the port reform law and applying various provisions on
damage to the Treasury, the local authorities or the
ports.
organisation in question.

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L 221/12
EN
Official Journal of the European Union
27.8.2011
(33) The
French
authorities
also undertook to notify the
(38) In the light of the above, the French authorities felt that
Commission before the signature of the sales deed of
the transfer procedures laid down by the port reform law
any decision by the chairman of the board of a major
provide sufficient guarantees to ensure that port-handling
sea port which departs from the CNECOP opinion.
equipment and the property rights attached to it are sold
at the market price and, hence, no state aid is involved.
(34) As
regards
the
competence
and
independence
of
the
CNECOP members, the French authorities submitted to
5. COMMENTS BY THE INTERESTED PARTY AND
the Commission the curriculum vitae of the four
COMMENTS BY THE FRENCH AUTHORITIES ON THE
CNECOP members, including that of its chairman, spec
COMMENTS BY THE INTERESTED PARTY
ifying the qualifications of each one of its members in
terms of the CNECOP’s responsibilities. According to the
(39) ESPO pointed out, in support of the views of the French
French authorities, all of these members were proposed
authorities, that by restoring the so-called ‘landlord
because of their knowledge of sales and privatisation
model’, the reform in question contributes to
processes and their experience in relation to ports, as
improving the competitiveness of French ports and the
witnessed by their curriculum vitae.
overall performance of European ports. Transfer by the
major sea ports of port-handling activities to private
operators will in effect modernise the governance of
the major French sea ports by bringing them into line
(35) The
French
authorities
pointed
out
that
the
independence
with the most widely-used model in the European Union
of Court of Auditor judges is enshrined in the Consti
and throughout the world.
tution of 4 October 1958 and confirmed by Constitu
tional Council Decision No 2001-448 DC of 25 July
2001, and that the independence of members of
parliament with respect to the executive power is
(40) Given
the
complexity
of
this
reform
and
its
social
and
enshrined in Article 16 of the Declaration of Human
financial implications, ESPO stated that support by the
and Citizen’s Rights of 26 August 1789 which lays
Member State concerned is often the only way of making
down the principle of separation of powers and is
such an extensive reform acceptable to all the stake
included in the preamble to the Constitution of
holders.
4 October 1958.
(36) The French authorities also pointed out that, in
(41) While not wishing to assess in detail whether or not the
accordance with Article 6 of Decree No 2008-1032 of
measures in question qualify as state aid, ESPO pointed
9 October 2008 implementing Law No 2008-660 (
out that the conditions for evaluating the equipment are

14 ),
rules on conflicts of interest providing an additional
sufficient to guarantee that they are sold at the market
guarantee of the independence of the CNECOP
price.
members apply to its members throughout their
mandate and for 5 years following the end of it:
(42) The
French
authorities
took
note
of
the
comments
by
ESPO.
— this applies to all mandates for members of the board
of directors, management board or supervisory board
of a port-handling company which has purchased
public port equipment and to the performance of
6. ASSESSMENT OF THE MEASURE
activities paid for by such a company; and
(43) Following the initiation of the formal investigation
procedure under Article 108(2) TFEU and bearing in
mind the arguments put forward in that context by the
— it also applies to all mandates as members of the
French authorities and the interested party, the
supervisory board or management board of a major
Commission takes the view that the tax scheme in
sea port.
question does not constitute state aid within the
meaning of Article 107(1) TFEU.
(37) Lastly,
they
stated
that
the
CNECOP’s
capacity
in
terms
of
experts can be reinforced since Article 7 of Decree
(44) According
to
Article
107(1)
TFEU,
‘any
aid
granted
by
a
No 2008-1032 of 9 October 2008 states that an
Member State or through State resources in any form
expert can be called in to estimate more precisely the
whatsoever which distorts or threatens to distort
value of equipment before it is transferred to handling
competition by favouring certain undertakings or the
companies.
production of certain goods shall, in so far as it affects
trade between Member States, be incompatible with the
( 14 ) French Official Gazette (JORF) No 0237, 10.10.2008.
internal market’.

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EN
27.8.2011 Official
Journal
of
the
European
Union L
221/13
(45) Classifying
a
national
measure
as
state
aid
presupposes
valuation of the market value of the port equipment
that the following cumulative conditions are met: the
should be carried out by an independent firm and
measure in question confers an advantage through state
should be included in the file sent to the CNECOP.
resources; (2) the advantage is selective; and (3) the
measure distorts or threatens to distort competition
and is capable of affecting trade between Member
States ( 15 ).
(52) The
chairmen
of
the
major
sea
ports
were
also
informed
that while the law did not regard CNECOP opinions as
conferring approval, they could not be overruled,
therefore no sales deed departing from an opinion
(46) First it must be pointed out that, in order to rule out any
issued by the CNECOP could be signed. Thus in the
advantage, the public property in question – the port-
event of a negative opinion by the CNECOP, either the
handling equipment – must be sold at the market rate.
negotiations should be resumed, if the date for referral to
the CNECOP permitted this, and a new file should where
appropriate be presented, or the failure of the
negotiations should be acknowledged and a tendering
procedure should be launched.
(47) In this respect, the Commission points out that the port-

handling equipment is not being sold by means of an
open, transparent, non-discriminatory and unconditional
procedure since only if the direct negotiations with the
(53) Moreover, the government commissioners for the major
current operators are not successful, or if there is no
sea ports must automatically oppose all deliberations by
current operator, will such a procedure be launched
the port supervisory board that disregard an opinion by
(see recital 21 above).
the CNECOP, and chairmen of the boards of major sea
ports are reminded of the sanctions in the event that they
grant an unjustified advantage to third parties in the
performance of their duties.
(48) However, the Commission notes that, in the event of sale
by direct agreement, the proposed procedure involves the
establishment of a National Committee for the Evaluation
of Port Equipment Transfers, the CNECOP. The
(54) The Commission considers that these instructions
Commission notes that, prior to the sale, the CNECOP
addressed to the chairmen of the boards of the major
must issue a public opinion on the value of the property
sea ports concerning the need to have an independent
to be sold.
evaluation of the port-handling equipment to be sold and
concerning the binding nature of CNECOP opinions are
sufficient to guarantee that the equipment in question
will not be sold at a lower price than the market price.
(49) In the framework of its decision of 8 April 2009 to
initiate the formal investigation procedure, the
Commission pointed out that, since that the opinion
expressed by the CNECOP was not binding, it was still
(55) The
Commission
notes,
moreover,
that
this
is
further
possible that the property could be sold at a lower price
reinforced by the fact that the CNECOP opinion must
than the market rate.
be published nationally by the national authorities and
locally by the ports. Where appropriate, these publi
cations are sufficient to enable the conditions of sale of
the handling equipment in question to be disputed.
(50) Acknowledging the doubts expressed by the
Commission, the French authorities informed it, in
letters dated 20 January 2010 and 24 March 2010,
(56) As
regards
the
independence
and
qualifications
of
the
that the Director of the Transport Department had sent
CNECOP members for the purpose of evaluating the
letters to all chairmen of the boards of the major sea
equipment sold, the French authorities have sent the
ports on 16 March 2009 and 18 January 2010
Commission the curriculum vitae of its four members,
explaining the framework for negotiating the sale of
including the chairman.
the port-handling equipment and specifying the
conditions to be respected for the purpose of this sale.
(57) It is worthwhile pointing out that one of the CNECOP
members, a member of the Court of Auditors, has been
(51) In these letters, the chairmen of the boards of the major
proposed by the First President of the Court of Auditors
sea ports were informed that the CNECOP would system
as chair of the CNECOP, and that he has direct profes
atically ask the major sea ports to have the value of the
sional experience of maritime affairs. The French
property to be sold assessed. Thus, before referral of the
authorities point out that the independence of the
matter to the CNECOP, an independent technical
judges in the Court of Auditors with respect to the legis
lative and executive powers is enshrined in the Consti
tution of 4 October 1958 and confirmed by Constitu
( 15 ) See, for example, the judgment of the Court of Justice in Case
C-222/04, Ministero dell’Economia e delle Finanze v Cassa di
tional Council Decision No 2001-448 DC of 25 July
Risparmio di Firenze (ECR I-289, paragraph 129).
2001.

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L 221/14
EN
Official Journal of the European Union
27.8.2011
(58) The CNECOP member who represents regional
7. CONCLUSION
authorities has expertise directly relating to maritime
ports. The French authorities state that the independence
(64) In the light of all these comments, the Commission
of members of parliament with respect to the executive
power is guaranteed by Article 16 of the Declaration of
Human and Citizen Rights of 26 August 1789, which
— takes note of the withdrawal of the notification
contains the principle of separation of powers, and
concerning the two support measures notified in
features in the preamble to the Constitution of
relation to the tax dimension of the port reform
4 October 1958.
and referred to in recital 2 of this Decision,
(59) As
for
the
two
members
proposed
as
people
with
profes
sional experience, it can be clearly seen from their
— considers that the procedure for transferring port-
curriculum vitae that one has experience of ports and
handling equipment and specific facilities, described
that the other is experienced in the transfer of public
in paragraph 16 et seq. of this Decision, which was
property.
also the subject of the Commission decision of

8 April 2009 and is set out in recitals 16-25 of
this Decision, does not constitute state aid within
(60) The
French
authorities
also
point
out
that,
in
accordance
the meaning of Article 107(1) TFEU.
with Article 6 of Decree No 2008-1032 of 9 October
2008 ( 16 ), rules on conflicts of interest are binding on
CNECOP members throughout their mandates and for 5
HAS ADOPTED THIS DECISION:
years after they end (see recital 36).
Article 1
(61) The
Commission
considers
that
these
rules
on
conflicts
of interest constitute, in the case in question, an addi
The measure entailing the transfer of port-handling equipment
tional guarantee of the independence of the CNECOP
to private operators which France is planning to implement as
members.
part of the port reform provided for by Law No 2008-660 of
4 July 2008 does not constitute state aid within the meaning of
Article 107(1) of the Treaty on the Functioning of the European
(62) Given
these
elements
and
the
specific
circumstances
in
Union.
this case, the Commission feels that the obligation to
have the market value of the equipment estimated by
an independent firm, on the basis of which the
experienced, independent CNECOP members would
Implementation of the measure is accordingly authorised.
issue a binding opinion, in principle guarantees that
transfers will be made in accordance with market
conditions.
Article 2
This Decision is addressed to the French Republic.
(63) Provided
the
conditions
and
circumstances
referred
to
in
Section 6, Assessment of the measure, are complied with, it
follows from the above that there are no grounds for
Done at Brussels, 29 June 2011.
considering that the sale of port-handling equipment in
the context of a direct agreement is likely to confer an
economic advantage on the purchasers of that
For the Commission
equipment. This would not be the case as regards indi
vidual transactions that did not strictly comply with the
Joaquín ALMUNIA
said conditions.
Vice-President
( 16 ) Decree No 2008-1032 of 9 October 2008 implementing Law
No 2008-660 of 4 July 2008 implementing the port reform law
and applying various provisions on ports.

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