under the Second Contract (i.e., the obligation to operate rail freight transport between the mainland and Sardinia/Sicily, the obligation to operate at a certain number of train stations in Sardinia/Sicily and the obligation to operate activities ancillary for the provision of the rail freight transport services), the compensation was calculated on the basis of Trenitalia’s profit and loss statements.

(371) As indicated in recitals (71) to (72), the Second Contract included specific rules governing (a) the payment of the compensation and (b) the recovery of amounts paid in excess of the yearly actual burden borne by Trenitalia indicated in the certified accounts reviewed by the MIT. The compensation could not exceed the maximum amounts indicated in Article 4(1) of the contract (221), with the additional safeguard provided in Article 4(2) of that contract, according to which ‘the total annual compensation granted may not in any case exceed the actual financial burden borne by the Company for each year of the three-year period 2004-2006’. There were also dedicated provisions governing the payment of the services performed by Trenitalia after the expiry of the contract (see recital (74)).

(372) The Commission considers the First Contract and Second Contract to be in line with Article 14(2)(b) of Regulation (EEC) No 1191/69, which requires the contract to indicate the price of the services covered by the contract and details of financial relations between the two parties.

(373) Under the First Contract, the MIT had the right to amend or modify the public service obligations covered by that contract, and the corresponding methodology to calculate the compensation (222). Conversely, Trenitalia was entitled to suspend the provision of the services, if the said amendments/modifications or enacted legal provisions were incompatible with the obligation to continue services (223). In any event, Trenitalia was under the duty to give prior notification to the MIT of any amendment of the service (224) and could terminate the provision of some or all services provided under the First Contract giving not less than 30 days’ prior notice (225).

(374) As regards the Second Contract, the amendment and modification of the contract could occur only in agreement with the MIT. The services referred in Annex 1 to the Second Contract could be modified by Trenitalia subject to the approval by the Ministry giving at least 60 days’ notice (226); moreover, the number of stations to be serviced as from 2006 could be reduced in agreement between the parties, subject to specific conditions (227). Moreover, the terms and quantities of the services subject to public service obligations could be reviewed by the parties, if the compensation effectively available was eventually lower than the amounts allocated in the national budget (228). Last, as regards the services performed by Trenitalia beyond the expiry of the contract, Trenitalia was entitled to suspend compliance with the obligations covered by the Second Contract if legal provisions were enacted, which were incompatible with the obligation to continue services (229).

(375) On that basis, the Commission considers that the First Contract and Second Contract fulfilled the requirement laid down in Article 14(2)(c) of Regulation (EEC) No 1191/69, that required the inclusion in the PSC of rules concerning amendment and modification of the contract.