(a) was based on national law, recognising that the Commission has the exclusive competence to assess the compatibility with the internal market of any notified or unlawful State aid;

(b) assumed the counter-guarantee has jeopardised the full effectiveness of the non-discrimination principle between the two participants to the tender;

(c) declared, therefore, the sale procedure of the Siremar business branch partially void.

(256) With regard to the last point, already at that stage, the Extraordinary Administration flagged that it could not be excluded that it would be newly called to put in place the activities legally required to finalise the Siremar privatisation process.

(257) SNS submitted four letters in the course of the investigation: three submissions of information and one formal request for the Commission to prioritise the Siremar part of the investigation on the Tirrenia Group. Subsequent informal exchanges also took place, with full knowledge of the Italian authorities, to clarify certain pending issues or acquire specific information. This section will summarise only the three submissions (86).

(258) In the first submission, sent on 22 February 2012 after the adoption of the 2011 Decision, the company submitted an update on Siremar’s privatisation process and certain clarifications regarding the counter-guarantee issued by Sicily on 12 October 2011, after the last request for incremental offers of 29 September 2011. In particular, SNS pointed out that this counter-guarantee: (1) was not proportional to the shares of Sicily in Mediterranea; (2) was issued by Sicily on its own initiative and was not remunerated; (3) was made without any intervening compensation or risk mitigation on the part of CdI’s shareholders. SNS also submitted the counter-guarantee itself to the Commission. Moreover, it claimed that the text of that counter-guarantee made clear that the latter was a requirement to the issuing of the guarantee on the deferred instalments of the sale price by Unicredit. SNS thus concluded that the counter-guarantee amounted to illegal State aid to CdI and possibly to Unicredit.

(259) In the second submission, sent on 21 March 2013 after the adoption of the 2012 Decision, the company retraced the various steps of the privatisation procedure and related litigation up to that date (see Section 2.3.3.2). It also reported about a complaint issued by the ferry operator NGI to the Ministry of Transport, against the awarding of a contract to operate services to the Egadi islands, Pantelleria and Ustica to CdI (87). Then, it clarified the nature of Sicily’s indirect shareholding in CdI, and argued why both the counter-guarantee and the capital increase represented State aid measures.