The Court of the EU has cancelled the decision of the EU commission that has approved of the measures of support of France in favor of the SNCM



The Court of the European Union has cancelled the decision assumed in 2008 from the EU commission that had approved of all the measures of support adopted by France in favor of the company of Société Nationale navigation Corse-Méditerranée (SNCM) ( on 9 July 2008). According to the judges of the EU, in fact, the Commission is incurred in errors appraisal manifestos stating, on one side, than some measures of the plan of restructure of the 2002 they constituted compatible aids of State with the common market and, from the other, than the measures of the plan of privatization of 2006 they did not constitute aids of State.

Al moment of the approval of the aids by the Commission company SNCM was participated for 60% of vital from private societies (the Capital Partners and Veolia) and for 25% from the Maritime Companies Générale ET Financière (CGMF), society entirely controlled from French State (currently SNCM is participated with 66% from the Veolia Transdev of the French group Veolia, with 25% from the French State and with 9% from the dependent of the company). With decision of the 8 July the 2008 EU commission had considered that the bestowal of capital carried out from the CGMF in favor of the SNCM in 2002, for an amount of 76 million euros (53,48 million for a reason or purpose of obligation of public service and the balance of 22,52 million for a reason or purpose of aids to the restructure) - bestowal that already had been object of a decision of the cancelled Commission in 2003 with the sentence of the EU Court on June 15, 2005 - was compatible with the common market. Parimenti, the Commission had considered that the measures of the plan of privatization of 2006 not costituissero aids of State. Such measures comprised a recapitalization of the SNCM for an amount of 158 million euros, an ulterior bestowal of capital by the CGMF for an amount of 8,75 million euros and, at last, an advance payment on account current, for an amount of 38,5 million euros, face to finance the eventual performance of a slowly social one by the purchasers. The company Corsica Ferries France SAS, main competitor of the SNCM in the regular marine connections from continental France, in particular towards the Corsica, had proposed resorted dinanzi to the EU Court in order to obtain the cancellation of such decision.

The pronunciamento of the Court of the European Union evidences that the EU commission is incurred in a manifest error of appraisal approving of the recapitalization of the SNCM as the not constituent measure of an aid of State. According to the Court, in order to establish if the privatization of the SNCM for a price negative of sale of 158 million euros comprised elements of aid of State, the Commission it was held to estimate if, in similar circumstances, a private investor could have been induced to carry out bestowals of capital of such consistency in the within of the sale of the enterprise or would have opted for the liquidation of the same one.

In a note the Court of the EU has explained that, second the Commission, the hypothetical cost of the liquidation of the SNCM, to which the cost of the recapitalization had to be rapportato, was limited to the cost of the integrating ndemnities of lay-off, to beyond the burdens of closely legal and contractual nature, that necessarily they would be poured to the dependent. Corsica Ferries had contested the fact that a shrewed private investor would have poured such ndemnities.

According to the Court, in a social economy of market, a shrewed private investor cannot prescind, on one side, from own responsibility regarding all the parts interested to the events of the enterprise and, from the other, the evolution of the social context, economic and environmental in which she pursues own development. The deposit of integrating ndemnities of lay-off - it has found the Court of the EU - can therefore, to constitute, about to principle, a legitimate and opportune praxis, second the circumstances of the species case, in the attempt to favor a social dialogue soothed and to preserve the image of the brand of a society. However, in absence of any economic rationality, though in the long term - it has specified the Court - the taken one in consideration of the costs that go to beyond the burdens of closely legal and contractual nature must be considered as aid of State.

The Court of the European Union therefore has stated that the EU commission has omitted to define the economic activities of the French State regarding which it is necessary to estimate the economic rationality of the measures of support guaranteed to the company. Moreover - for the judges - the Commission has not produced sufficient objective and verifiable elements to demonstrate though that the deposit of integrating ndemnities of lay-off would sufficiently constitute a consolidated praxis between the private entrepreneurs or that the behavior of the French State in this case would be motivated by a reasonable probability of trare of an indirect material advantage, in the long term (avoiding, for example, a deterioration of the social climate in the within of the public enterprises).

In the second place, as for the bestowal of capital of the CGMF for an amount of 8,75 million euros carried out in concomitanza with the bestowal of the private purchasers, the Court has considered that the Commission has not taken into consideration all the relevant elements in own appraisal of the comparability of the investment conditions.

In third place, the Court of the EU has stated that the Commission is incurred in a manifest error of appraisal approving of the aids to the person for an amount of 38,5 million euros as measure not constituted an aid of State. In fact, the mere circumstance that a measure pursues a social aim - has explained the Court - he is not sufficient to stave off it to the qualification certainly as aid of State. As suitable to create an economic advantage for the SNCM - they have emphasized the judges of the EU - such aids constituted an aid of State.

At last the Court has found that the analysis of the relative EU commission to the balance of restructure of 22,52 million euros valid is not suffragata here where I found myself on the circumstance that the measures previewed in the plan of the 2006 are lacking in elements of aids of State.

SNCM has expressed intention the intention to appeal the decision of the Court of the EU dinanzi to the Law court of the EU, action that can be undertaken within two months to pass from the date of its notification. Corsica Ferries has instead received with satisfaction the pronunciamento of the Court evidencing as often the participation of the State involves a distortion of the market to the detriment of a healthy competition between the navigation companies.