2The General Court made the following findings:‘Shipping companies at issue1 ... Corsica Ferries France SAS [“Corsica Ferries”] is a shipping company operating regular services to Corsica from mainland France (Marseilles, Toulon and Nice) and Italy.2 [SNCM] is a shipping company operating regular services to Corsica from mainland France (Marseilles, Toulon and Nice) and to North Africa (Algeria and Tunisia) from France and services to Sardinia. One of the main subsidiaries of SNCM is the Compagnie méridionale de navigation which is wholly owned by SNCM …3 In 2002, SNCM was 20% held by the Société nationale des chemins de fer (French National Railways) and 80% held by the Compagnie générale maritime et financière (“CGMF”), which in turn were wholly owned by the French State. When it opened its capital in 2006, two purchasers, Butler Capital Partners … and Veolia Transport …, assumed control of 38% and 28% of the capital, respectively, whilst CGMF maintained a presence with 25%, and 9% of the capital was reserved for the employees. Since then, [Butler Capital Partners] has transferred its shares to [Veolia Transport].Administrative procedure4 By Decision 2002/149/EC of 30 October 2001 on the State aid awarded by France to [Société nationale maritime Corse-Méditerranée (SNCM)] (OJ 2002 L 50, p. 66 …), the Commission of the European Communities found that aid of EUR 787 million granted to SNCM, during the period from 1991 to 2001, by way of public service compensation, was compatible with the common market under Article 86(2) EC. No action for annulment of that decision has been brought before the General Court.5 By letter of 18 February 2002, the French Republic notified the Commission of a plan to grant aid for the restructuring of SNCM in an amount of EUR 76 million (“the 2002 Plan”).6 By Decision 2004/166/EC of 9 July 2003 on aid which France intends to grant for the restructuring of [the Société nationale maritime Corse Méditerranée (SNCM)] (OJ 2004 L 61, p. 13; “the 2003 Decision”), the Commission approved, with conditions attached, two tranches of restructuring aid paid to SNCM in a total amount of EUR 76 million, one of EUR 66 million, payable immediately, and the other of a maximum amount of EUR 10 million, depending on the net result from disposals relating to, in particular, SNCM’s vessels.7 [Corsica Ferries] brought an action for annulment of the 2003 Decision before the General Court on 13 October 2003 [(judgment of the General Court in Corsica Ferries France v Commission, T‑349/03, EU:T:2005:221)].8 By Decision 2005/36/EC of 8 September 2004 amending Decision [2004/166/EC on aid which France intends to grant for the restructuring of Société Nationale Maritime Corse-Méditerranée (SNCM)] (OJ 2005 L 19, p. 70 …), the Commission amended one of the conditions imposed by Article 2 of the 2003 Decision. This concerned the condition relating to the maximum number of 11 ships of which SNCM was authorised to dispose. In [Decision 2005/36], the Commission authorised the replacement of one of those ships, the Aliso, by another, the Asco.9 By decision of 16 March 2005, the Commission approved the payment of a second tranche of aid for restructuring, in an amount of EUR 3 327 400, on the basis of the 2003 Decision (“the 2005 Decision”).10 By its judgment in … Corsica Ferries France v Commission [(EU:T:2005:221)], the General Court annulled the 2003 Decision on the ground of an erroneous assessment of the minimal nature of the aid, due principally to calculation errors in the net proceeds from disposals, while rejecting all the other pleas in law alleging an insufficient statement of reasons and an infringement of Article 87(3)(c) EC and of the Community Guidelines on State aid for rescuing and restructuring firms in difficulty (OJ 1999 C 288, p. 2; “the Guidelines”).11 By letter dated 7 April 2006, the French authorities called on the Commission to find that, by reason of its nature as public service compensation, part of the restructuring aid agreed to under the 2002 Plan, in an amount of EUR 53.48 million, was not to be classified as a measure taken under a restructuring plan but as a measure not constituting aid in accordance with the judgment [in Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415)] or as a measure independent of the 2002 Plan pursuant to Article 86(2) EC.12 On 21 April 2006, the planned merger concerning the acquisition of joint control of SNCM by [Butler Capital Partners] and [Veolia Transport] was notified to the Commission pursuant to Article 4 of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings [(“the EC merger regulation”)] (OJ 2004 L 24, p. 1). The Commission authorised the merger on 29 May 2006 on the basis of Article 6(1)(b) of that regulation.…14 On 13 September 2006, the Commission decided to initiate the procedure under Article 88(2) EC in regard to the new measures carried out in favour of SNCM while incorporating the 2002 Plan (OJ 2006 C 303, p. 53 …).15 By [the decision at issue], the Commission found that the measures of the 2002 Plan constituted unlawful State aid within the meaning of Article 88(3) EC but were compatible with the common market under Article 86(2) EC and Article 87(3)(c) EC and that the measures of the 2006 privatisation plan (“the 2006 Plan”) did not constitute State aid within the meaning of Article 87(1) EC.Measures in question16 The decision [at issue] concerns the following measures:— under the 2002 Plan: the capital contribution of CGMF to SNCM for the sum of EUR 76 million in 2002, including EUR 53.48 million for public service obligations and the balance for restructuring aid;— under the 2006 Plan:— the negative sale price of SNCM by CGMF for the sum of EUR 158 million;— the capital contribution of CGMF of EUR 8.75 million;— the current account advance from CGMF for an amount of EUR 38.5 million for staff made redundant by SNCM in the event of a new social plan.The decision [at issue]17 In the decision [at issue], in particular at recitals 37 to 54, the Commission found that the operation of passenger transport services to Corsica was a market characterised by the fact that it was seasonal and concentrated. The competitive structure of the market had changed significantly following the arrival of [Corsica Ferries] in 1996. Since 2000, SNCM and [Corsica Ferries] constituted a de facto duopoly holding over 90% of the market share. In 2007, [Corsica Ferries] clearly overtook SNCM and transported an additional million passengers, in a market increasing steadily by 4% per annum. SNCM, together with [Compagnie méridionale de navigation], on the other hand, retained a near-monopoly in respect of freight transport.18 The Commission found, at recitals 219 to 225 of the decision [at issue], that all the contributions received by SNCM through CGMF were financed via State resources, that they threatened to distort competition and that they had an effect on trade between Member States. Accordingly, it found that three of the four criteria of Article 87(1) EC had been fulfilled. It then examined, for each measure, the existence of a selective economic advantage and its possible compatibility with the common market.19 As regards the EUR 76 million notified in 2002, the Commission took the view, at recital 236 of the decision [at issue], that EUR 53.48 million could be considered to be public service compensation. In accordance with paragraph 320 of the judgment [in Corsica Ferries France v Commission (EU:T:2005:221)], the Commission evaluated that contribution in the light of the judgment in Altmark [Trans and Regierungspräsidium Magdeburg, (EU:C:2003:415)] and found, at recital 257 of the decision [at issue], that it indeed constituted State aid but was nevertheless compatible with the common market in accordance with Article 86(2) EC. The remaining EUR 22.52 million then had to be considered in terms of restructuring aid.20 As regards the 2006 Plan, the Commission next applied, at recitals 267 to 352 of the decision [at issue], the market economy private investor test (“the private investor test”) to the negative sale price of EUR 158 million. In order to do so, it evaluated whether a hypothetical private investor, in the place of and instead of CGMF, would have preferred to recapitalise [SNCM] for that amount or place the company in liquidation and bear the costs thereof. It was therefore necessary to assess a minimum cost of liquidation.21 The Commission took the view, at recitals 267 to 280 of the decision [at issue], that the cost of liquidation had necessarily to include the cost of a social plan, namely the cost of additional redundancy payments in addition to statutory obligations and obligations under agreements, in order to comply with the practice of large groups of undertakings today and to not harm the brand image of the holding company to which it belongs and its ultimate shareholder. It therefore calculated, with the help of an independent expert, the cost of those additional redundancy payments by carrying out a comparison with social plans implemented recently in France by groups of undertakings such as Michelin and Yves Saint-Laurent.22 At recital 350 of the decision [at issue], the Commission found that the negative sale price was the result of an open, transparent, unconditional and non-discriminatory selection procedure, and that, in that regard, it constituted a market price. Consequently, accepting the premiss of the cost of liquidation being limited to redundancy payments alone, it concluded, at recital 352 of that decision, that the cost of liquidation was higher than the negative sale price and that the capital contribution of EUR 158 million did not therefore constitute State aid within the meaning of Article 87(1) EC.23 As regards the capital contribution of EUR 8.75 million from CGMF, the Commission took the view, at recitals 356 to 358 of the decision [at issue], that since the contribution of the private purchasers was significant and concurrent, it could be automatically excluded that this was in the nature of aid. Next, it stated that the fixed rate of profitability constituted an adequate return on the capital invested and that the existence of a clause to cancel the sale was not such as to call into question the equal treatment. It concluded, at recital 365 of that decision, that CGMF’s capital contribution, in an amount of EUR 8.75 million, did not constitute aid within the meaning of Article 87(1) EC.24 Next, the Commission observed, at recitals 372 to 378 of the decision [at issue], that the measures involving aid to individuals, up to EUR 38 million, deposited in an escrow account would be carried out should a new social plan be implemented by the purchasers and that the measures did not reflect the implementation of the staff reductions provided for under the 2002 Plan. According to the Commission, that aid could be paid only to individuals whose employment contract with SNCM had been terminated prematurely. Those measures did not therefore constitute charges arising out of the normal application of the social legislation applicable to cases where employment contracts have been terminated. The Commission concluded that that aid to individuals, approved of by the State in the exercise of its public authority and not by the State in its capacity as shareholder, therefore fell within the Member States’ social policy and by the same token did not constitute aid within the meaning of Article 87(1) EC.25 As regards the balance of EUR 22.52 million notified under restructuring aid, namely the balance of EUR 76 million notified under the 2002 Plan and of the EUR 53.48 million considered to be compatible with the common market pursuant to Article 86(2) EC …, the Commission found, at recital 381 of the decision [at issue], that this constituted State aid within the meaning of Article 87(1) EC. Next, it assessed the compatibility of that measure with the Guidelines.26 The Commission stated, at recitals 387 to 401 of the decision [at issue], that, in 2002, SNCM was indeed a firm in difficulty within the meaning of point 5(a) and of point 6 of the Guidelines and that the 2002 Plan was capable of helping the company restore its viability, in accordance with points 31 to 34 of the Guidelines.27 In respect of the avoidance of undue distortions of competition (points 35 to 39 of the Guidelines), the Commission took the view, at recital 404 of the decision [at issue], that there was no excess capacity on services by sea to Corsica and that it was therefore not necessary to contribute to its improvement. It considered next, at recital 406 of the contested decision, that the restructuring plan significantly reduced the firm’s presence on the market. The criteria relating to the prevention of undue distortions of competition was therefore also satisfied.28 At recitals 410 to 419 of the decision [at issue], the Commission observed that the need for aid, calculated at the minimum under points 40 and 41 of the Guidelines, was limited to EUR 19.75 million on 9 July 2003, subject to the net proceeds of the disposals provided for by the 2003 Decision. To that end, the Commission began by calculating SNCM’s cash-flow requirements for its restructuring plan. According to the Commission, the cost of the restructuring plan was determined at EUR 46 million. Next, it deducted all the disposals made between 18 February 2002 (date of notification of the 2002 Plan) and 9 July 2003 (date of adoption of the 2003 Decision), namely EUR 26.25 million, to arrive at an amount of EUR 19.75 million.29 As regards the compensatory measures, the Commission found that almost all the conditions provided for under the 2003 Decision concerning the acquisitions, the use of the fleet, the disposal of assets, the prohibition on offering lower fares than those of each of its competitors … and the limitation on the number of round trips on routes departing from Corsica had been complied with. In so far as those conditions had been satisfied and the amount of the aid notified was substantially less than the amount approved in 2003, the Commission did not consider it appropriate to impose additional obligations. Accordingly, after having taken account of the amount of the additional disposals provided for under the 2003 Decision, the Commission found, at recital 434 of the decision [at issue], that the final restructuring balance, established at EUR 15.81 million, was State aid compatible with the common market pursuant to Article 87(3)(c) EC.30 The enacting terms of the decision [at issue] read as follows:“Article 1The compensation of EUR 53.48 million for public service obligations paid by the French State to SNCM for the period 1991-2001 constitutes unlawful State aid for the purpose of Article 88(3) of the EC Treaty but is compatible with the common market under Article 86(2) thereof.The negative sale price of SNCM of EUR 158 million, the EUR 38.5 million in social measures aimed at employees and borne by CGMF, as well as the related and concurrent recapitalisation of SNCM by CGMF for the sum of EUR 8.75 million do not constitute State aid within the meaning of Article 87(1) of the EC Treaty.The EUR 15.81 million in restructuring aid operated by France to benefit [SNCM] constitutes illegal aid within the meaning of Article 88(3) of the EC Treaty but is compatible with the common market under Article 86(2) thereof.Article 2This Decision is addressed to the French Republic.”’
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