Twenty two years ago, Tory Secretary of State Ian Lang commissioned KPMG to study ferry operations in Scotland.

The following year, 1994, the consultants' report landed on his desk. It told him privatising CalMac, which some Conservatives had sought, would make little economic sense and would not improve services.

Little thought was given to the prospect of the European Commission demanding that CalMac's routes be tendered; this despite the Maritime Cabotage Regulation, the measure that ostensibly has led to the present ferry dispute, having come into force in 1992.

It was a regulation and not a directive, which would have required a member state to take a particular course of action. It did not specifically say that ferry services had to be tendered to make the public subsidy CalMac receives EU compliant.

However, a decade or so later Labour/Liberal Democrat Scottish Executive ministers were insistent tendering was the only way to keep Europe happy and that they had been offered no alternative (much the same as ministers are saying today).

Professor Neil Kay, the economist who had become something of a specialist on the subject, opined at the time: "It is not the commission's job to present alternatives, it is the member state's responsibility. You do not ask the umpire to formulate your strategy for you, whether the game is football or state aid."

Europe was demanding members states conform to a set of principles on public subsidy and competition but it was up to them how they went about it.

It is clear that the European Commission is indeed happy with tendering as a chosen route, but it was never prescriptive. And there was another way.

In 2003 there was a ruling by the European Court of Justice in a case about German bus company Altmark in respect of subsidy/state aid. In 2004 CalMac received senior legal opinion that the Altmark decision allowed the Scottish Executive to stop tendering without fear of legal consequence.

In 2005 Professor Kay submitted a proposal to Edinburgh that showed how Altmark could avoid the need to tender. He was supposed to discuss the matter with MSPs but this was pre-empted by the Scottish Executive issuing an edict declaring Altmark was not relevant.

The shameful treatment of Professor Kay exposed how government officials refused to really listen to any alternative to tendering, even in 2007 when Jacques Barrot, the European Transport Commissioner, indicated Altmark could apply to CalMac.

Had it been pursued, we might have avoided fragile island communities being hit by industrial action launched by ferry crews concerned for their future with Serco tendering for the routes, all the while CalMac management trying to be competitive as possible to fight off Serco's challenge.

Professor Kay says it is too late for this round of tendering. But he is still clear: "Altmark provides an alternative which could have worked. It would have required some thought and commitment but ultimately it could have offered far less uncertainty and costs for all interested parties, not least the dependent communities."