The attached responses are the result of the decisions adopted by the Spanish-French Intergovernmental Commission on June 29, 2007.
1. What is the position of the European Commission with regard to this call for proposals, in particular with regard to its compatibility or articulation with community guidelines relating to state aid or with its Marco Polo II program? Has it assumed commitments to contribute to the viability of the project?
The European Commission is fully aware of the Franco-Spanish call for proposals: there has been frequent and constant contact in relation to this case. With reference to the articulation between the Marco Polo II program, which provides that the aid cannot be more than 35% of eligible costs within a 5-year period, and the state aid for maritime transport, set at a maximum of 3 years and 30% of eligible costs, the states have addressed the Commission in order to align state aid with the limits set by Marco Polo II but, although the Directorate General for Transport and Energy (DGTREN) of the European Commission is not opposed to it, it has not been able to assume any definitive commitment in this regard to date.
Awaiting the response from the Commission and in order to not delay the schedule for the call for proposals, the states have decided to act with total transparency in this matter and give candidates the choice of two options, which are provided for in article 2.7.1 of the rules and conditions.
Candidates can choose either or both options for the same technical bid. The validity period required for bids includes the periods needed to obtain the responses from the Commission for finalizing the contract.
If new items arise on a community level during the process, the states will inform the candidates.
2. For what year are the €41M announced by way of the French participation in the product and what are the performance perspectives for that participation?
The €41M are in the 2007 AFITF (the French department for financing transport infrastructures) budget so it may be possible to mobilize the sums required to execute the project this year. At the moment, the Intergovernmental Commission (IGC) does not have a specific vision with regard to the subsequent performance of the plan but the launch of the call for proposals and the agreements signed with Spain translate into a clearly expressed desire to carry out this operation, for which the financial participation of the states must be balanced.
3. Is there any possibility of including destinations other than French and Spanish ports?
To be eligible, for the purpose of the call for proposals for a motorway of the sea service between France and Spain on the Atlantic-English Channel-North Sea front, the projects must connect, at least, one French port with one Spanish port, which must both be category A. Any candidacy that unites a port in other states will be admitted if it includes a main section that connects a French and a Spanish port (one or several ports in each of the states) and generates a significant modal transfer.
The call for proposals, indeed, offers the possibility of including, besides the link between French and Spanish ports, sections of national cabotage and prolongations toward other ports in European Union member states and connections to third-party countries. These prolongations or connections cannot be the object of a grant from the states by virtue of this call for proposals.
4. Can maritime companies that are not French or Spanish participate?
There are no rules regarding the nationality of the companies that participate in the project (which together constitute "the candidate"), therefore any company or companies without French or Spanish nationality (maritime, port operator, logistic operator, bank, etc.) may form part of the candidacy.
The sole obligations in the area of nationality refer to the Trading Company to be created, which must have its registered business address in France or Spain, and also to the flags flown by the ships providing the maritime service, which must be EU.
In any case, compliance with eligibility requirements in Marco Polo II regulations, and also for the TEN-T framework, are essential conditions in the selection of candidates.
5. How will the neutrality of the ports between the different projects be guaranteed?
The answer to this question is in article 2.3.2 of the rules and conditions.
6. Can the participation of a French Autonomous Port be considered?
Yes, in the conditions set out in article 2.2.4. of the Rules and Conditions, and subject to prior approval and authorization from the party supervising it. The latter will make every effort to make its decision within a time frame that is compatible with the bid submission deadline to allow, if the case arises, an interested autonomous port to submit its candidacy.
7. Public shares in the supervising company are limited to 10%. Does that percentage include possible shares belonging to semi-public companies, belonging to public financial institutions or companies?
The 10% limit applies to the total public share in the Trading Company capital. So, if a semi-public company has a percentage of capital equal to p%, its share —in relative terms— with regard to the Trading Company capital must be less than 1000/p%. Therefore, if shares in the semi-public company were 100% public capital, its share in the Trading Company would be 10%. If the semi-public company were 50% public capital (theoretical limit at which control of the company stops being private), its maximum share in the Trading Company would be 20%.
7.bis Public shares in the supervising company are limited to 10%. Does this percentage include possible shares belonging to French regional authorities?
Candidates' attention is brought to the fact that the public share belonging to French regional authorities in private company capital is strictly subject to the French legal framework.
8. How is the multiport criteria assessed?
The number of ports associated with the project in Spain is assessed preferentially, in accordance with condition 3.2., point 2 of the Rules and Conditions.
9. In their bid, candidates are expected to designate ports of origin and destination for MOS maritime services, including —where applicable— sections of cabotage and the service at other different ports. What exactly do the notions of "section" and "service" cover? Does it perhaps mean that there may be two lines per motorway/project?
The notion of “section” is included to identify those that connect a French port with another Spanish one as a main section/s and, therefore, may be subsidized, differentiated from those sections that incorporate other ports whether in the same state (sections of cabotage) or in other European Union member states, which cannot be subsidized directly.
10. In an environment that is —by definition— evolving, is the state in conditions to assume commitments to guarantee that it will not favor competition by other modes (rail/road) and to guarantee socioeconomic stability?
The states undertake to not finance motorways of the sea with main sections that are identical to those in the selected project. No further commitment is expected from the states beyond what is indicated above, particularly with respect to rail or road alternatives.
11. In the call-for-proposal documents, does the notion of operating costs correspond to the notion of eligible cost?
12. What weighting will there be between the 2 criteria that are tons/kms and vehicles?
The weighting will be 50% for the criteria relative to the number of units diverted from the road (lorries and/or semitrailers) and 50% for the criteria relating to tons x km diverted from the road to the maritime mode, in accordance with the modification in the Rules and Conditions.
13. Is the conditionality of a bid ("subject to" clauses) to guarantee its legal and financial coherence a reason for disqualification? If it is, what reasonable time frames can be given?
Under no circumstances will any bids be accepted that are contrary to the Rules and Conditions, which must be accepted by candidates without reservation or conditions, in accordance with articles 2.1 and 4.2.2.i of the Rules and Conditions.
14. Why do the states not commit with regard to the studies and, particularly, the traffic studies that have been performed?
The states have started studies destined to delimit the existence and viability of MOS project/s. In any case, they are planning studies and not commercial or marketing studies. These studies cannot be used to demand any responsibility from the states.
Therefore, the candidates are responsible, at their own expense, for initiating commercial and marketing studies with a view to proving the credibility of their project.
15. Will there be any exemptions for MOS in the area of safety and customs obligations?
As for all "authorized regular lines" operated between EU member states, there will be no customs obligation or excuse for MOS. The only obligations may arise from the safety and protection rules in the ports as applicable.
16. The Rules and Conditions stipulate that the IGC has a deadline of 500 to examine candidacies. What does that deadline correspond to? How can it be made compatible with the tenderers' commitment deadlines, for example, for ship orders?
Bids must be valid for 500 days so that operators and states can prepare the start-up of the MOS. Given that this is an innovative project, it is deemed prudent to establish an ample bid deadline, in order to not run the risk of the bids expiring and the entire process having to be repeated. This is the maximum deadline, and the agreement may be signed sooner if all parties agree.
17. Does the project only affect the Atlantic? Why do the France-Spain MOS not also affect the Mediterranean?
The call for proposals only refers to the Atlantic corridor, in accordance with the configuration of the four corridors defined by the Trans-European Transport Networks, but does not exclude sections that connect with the Mediterranean coast.
18. Although the Rules and Conditions stipulate that there will be a "dispute court" that will have jurisdiction over any challenge to the IGC's preselection, who will have jurisdiction over any challenge to the "dispute court" decision?
The Rules and Conditions provide for the existence of a dispute court that will have jurisdiction for resolving any complaints that may be brought by candidates during the selection process or by the operators regarding decisions made by the IGC, the states or the organizations that have been given authority to check compliance with the agreement. The decisions of this court will be final and compulsory for the parties. There will be no possibility of appeal.
19. Is there any kind of ship specifically adapted to a motorway of the sea service?
The call for proposals does not include specifications in this regard and, therefore, does not judge the type of ship chosen. It is up to the professionals to propose the technical solutions they deem most appropriate.
In any case, the quality and safety tests for the service provided in the proposals will be analyzed in much detail, as they constitute one of the assessment criteria for the bid.
20. Are the penalties set out in the Model Agreement negotiable?
Condition 2.6.2 (ii) c) of the Rules and Condition says:
“The candidates cannot amend the Model Agreement, except when expressly authorized. Any direct or indirect, implicit or express, modification of the stipulations of the Model Agreement will be considered as not written.
Nonetheless, the candidates may indicate —in a separate document— items in the Model Agreement that would allow them to optimize their bid if modified, without these items having to be necessarily taken into account in the assessment of their bid or compromising the states in any way.
In any case, the effect of these precise and limited proposals cannot be to modify the main principles of the Framework Agreement project and will be indicated precisely, in accordance with the corresponding contract wording”.
Therefore, any proposal to modify the penalties will have to be formulated on a separate document and supported by justification that improves the financial viability of the bid.
21. Is the maximum amount subsidized per MOS €15 million + an amount assigned by France or is €15 million the total maximum?
State aid of a maximum of €15 million per MOS will be granted by Spain + an equivalent amount by France. Therefore, the amount of €15 million is not the maximum state subsidy that may be jointly granted by Spain and France for a MOS.