Fred. Olsen Supports Its Reasons in Agaete

Fred. Olsen understands that the ruling of the Court of Justice of the European Union regarding the operation of the port of Agaete, “in no case” indicates that the exclusive use for commercial traffic of the dock constitutes State Aid, nor that the shipping company has irregularly occupied most of the port's area since 1994 without any title to support it, reports the digital edition of Canarias 7.

On the contrary, Fred. Olsen states that it is pleased that both rulings declare it lawful to operate in the port of Agaete without a prior public tender, as it was the first shipping company to request docking at the port dependent on the Autonomous Community, where it has been present since 1994, on the route connecting to the capital of Santa Cruz de Tenerife.

In its paragraph 130, the ruling notes that the possibility of State Aid “does not rest in any way on the mere fact that Fred. Olsen may have been the only user of the port of Agaete for commercial traffic, without the Port Authority calling for any tender.” The concept of State Aid solely depends on whether a state measure confers a financial advantage funded by state resources to one or more companies.

The ruling states that the European Commission, which had archived the complaint filed by Naviera Armas, must review the case, open a formal investigation procedure, and rule again on whether the port fees paid by Fred. Olsen, “comparable to fees charged for the use of the port of Agaete, were at least equivalent to the compensation that a private operator, acting under normal competitive conditions, could have obtained in return for making that infrastructure available.”

Fred. Olsen asserts that the Court of Justice reiterates that “the only thing the Commission has to analyze” is whether the fees it pays for using the port of Agaete – two million euros in 2018 – cover the depreciation costs of the infrastructure and generate a reasonable profit for the entity Ports of the Canary Islands (in which case it would be concluded that there is no State Aid) or not.

As the proven facts of the ruling of the European high court indicate, Fred. Olsen operates in the port of Agaete under an administrative authorization granted by the General Directorate of Merchant Marine dated December 21, 1994, and has since paid all the fees provided for in Legislative Decree 1/1994, of July 29, which approves the consolidated text of the current legal provisions on fees and public prices of the Autonomous Community.

Fred. Olsen believes that, based on this ruling, the Commission must open a formal procedure to analyze whether the fees it pays for its use of the port of Agaete “are correct or not, and could either archive the matter again, declaring that there has been no State Aid, or declare that there has been, quantifying it. Ultimately, this is a matter whose only consequence would be economic, but it would not affect Fred. Olsen's situation as the sole user of the port of Agaete,” it states.

Moreover, this is a legal situation supported on several occasions by Spanish courts. The most recent refers to the ruling of the Administrative Litigation Chamber of the TSJC dated December 22, 2017, confirmed by the Supreme Court by Order of July 19, 2018, regarding the public tender called by Ports of the Canary Islands to distribute time slots at the port of Agaete. This ruling upheld the appeal filed by Fred. Olsen and declared null and void the administrative and technical tender documents, as well as the award of the tender itself, rendering all of it without value or effect.

Photo: provided