On 11 September 2012, the General Court partially annulled the decision ("Decision", 2009/611/CE of 8 July 2008) of the European Commission ("Commission") approving all measures adopted by France in favour of the Société nationale maritime Corse-Méditerranée ("SNCM", Case T-565/08). More importantly, the General Court concluded that a recapitalisation in the amount of €158 million, corresponding to redundancy payments due in the event of liquidation, constituted state aid. The Commission did not bring sufficient evidence that the private investor test was met.
In 2002, the French state, through the Compagnie générale maritime et financière ("CGMF"), had made a capital investment of €76 million in SNCM. After a privatisation plan in 2006, 25% of its capital remained in the hands of CGMF. Furthermore, the privatisation also included a recapitalisation of SNCM for €158 million, an additional capital investment by CGMF of €8.75 million and an advance on a current account amounting to €38.5 million, aimed at financing a possible social plan put in place by the private companies that took over SNCM.
The Court started its reasoning by stating that in a social market economy, a prudent private investor, would not ignore its responsibility towards all of the undertaking’s shareholders as well as the evolution of the social, economic and environmental context. Consequently, taking responsibility for additional redundancy payments could be an appropriate and legitimate practice for a private investor to preserve brand image or stimulate social dialogue. Nevertheless, in this case the measure was not based on economic rationality, but rather on social or political factors. This led the Court to conclude that the Commission's Decision could not be upheld regarding the application of the principle of the private investor in a market economy.
Furthermore, in its Decision the Commission had concluded that the cost of liquidation would be higher than the cost of recapitalisation and, therefore, the recapitalisation did not constitute state aid. The Court ruled that the Commission should have assessed the economic activities of the French State in relation to which the rationale of the measure at issue must be assessed, but failed to do so. In addition, the Commission did not put forward sufficiently objective and verifiable evidence that (i) the payment of additional redundancy benefits is a sufficiently established practice amongst private undertakings, or (ii) the conduct of the French state was motivated by the reasonable likelihood that it could entail indirect material profit.