Joined Cases C‑533/12 P and C‑536/12 P

Société nationale maritime Corse-Méditerranée (SNCM) SA

and

French Republic

v

Corsica Ferries France SAS

‛Appeals — Restructuring aid — European Commission’s margin of assessment — Scope of review by the General Court of the European Union — Market economy private investor test — Requirement for a sectoral and geographical analysis — Sufficiently well-established practice — Long-term economic rationale — Making of additional redundancy payments’

Summary — Judgment of the Court (Fifth Chamber), 4 September 2014

1. State aid — Meaning — Legal nature — Interpretation on the basis of objective factors — Complex evaluation of economic matters — Judicial review — Scope

   (Art. 107(1) TFEU)

2. State aid — Meaning — Assessment according to the criterion of the private investor — Capital contribution — State acting as shareholder of an undertaking — State acting as a public authority — Distinction in the light of the application of the private investor test — Factors for assessing that criterion

   (Art. 107(1) TFEU)

3. State aid — Meaning — Private investor test — Capital contribution — Capital contributions of private and public investors made at the same time — Criteria for assessment

   (Art. 107(1) TFEU)

1.  See the text of the decision.

   (see para. 15)

2.  It follows from the principle of equal treatment of public undertakings and private undertakings that capital placed directly or indirectly at the disposal of an undertaking by the State in circumstances which correspond to normal market conditions cannot be regarded as State aid.

   In that regard, it is necessary to distinguish between, on the one hand, the role of a Member State as shareholder of an undertaking and, on the other, that of the State acting as a public authority. The applicability of the private investor test ultimately depends on the Member State concerned having conferred, in its capacity as shareholder and not in its capacity as public authority, an economic advantage on an undertaking.

   In that context, it is necessary to assess whether the measure would have been adopted in normal market conditions by a private investor in a situation as close as possible to that of the Member State concerned, and only the benefits and obligations linked to the situation of the State as shareholder — to the exclusion of those linked to its situation as a public authority — are to be taken into account. If there is no possibility of comparing the situation of a public authority with that of a private undertaking, normal market conditions must be assessed by reference to the objective and verifiable elements which are available.

   Furthermore, for the purposes of the assessment of the private investor test, it is for the Commission to define the economic activities of the Member State concerned, in particular at the geographic and sectoral level, in relation to which the long-term economic rationale of that Member State’s conduct has to be assessed. It is only a sufficiently well-established practice or a settled practice of private undertakings which can be used to apply that test.

   In those circumstances, when injections of capital by a public investor disregard any prospect of profitability, even in the long term, such provision of capital must be regarded as aid within the meaning of Article 107 TFEU, and its compatibility with the common market must be assessed on the basis solely of the criteria laid down in that provision. Summary references to the brand image of a Member State, as a global player, are not enough to support a finding that there is no aid, for the purposes of EU law.

   (see paras 30, 31, 33-35, 39, 41)

3.  In the area of State aid, the mere fact that a capital contribution was made jointly and concurrently with private investors does not automatically exclude it from being classified as State aid. Other factors, in particular the equal treatment of public and private shareholders, must also be taken into account.

   In that regard, a clause to cancel the capital contribution to a public undertaking made by private purchasers, under which the original shareholder which has transferred its shares to the purchaser must reimburse him his capital contribution, since that purchaser, unlike the original shareholder, has the opportunity to recover his capital contribution in the event that the cancellation clause is exercised and to end his involvement with the public undertaking concerned, may produce effects on the conditions of that recapitalisation and affect the comparability conditions. That clause, consequently, has an actual financial value and is liable to alter the risk profiles of the capital contributions of the private purchasers and therefore to call into question the comparable nature of the investment conditions.

   (see paras 54, 55, 59, 60)