Action brought on 17 December 2008 - STIM d'Orbigny v Commission

(Case T-559/08)

Language of the case: French

Parties

Applicant: Société de travaux industriels et maritimes d'Orbigny (STIM d'Orbigny SA) (Paris, France) (represented by: F. Froment-Meurice, lawyer)

Defendant: Commission of the European Communities

Form of order sought

Annul the contested Commission decision

Annul Article 1 of the contested decision declaring: (1) compensation paid by the French State to SNCM of EUR 53.48 million an unlawful but compatible State aid; (2) the negative sale price of SNCM of EUR 158 million as not constituting State aid; and (3) restructuring aid of EUR 15.81 million an unlawful but compatible State aid;

Order the Commission to pay STIM d'Orbigny the costs and expenses arising from the contested decision.

Pleas in law and main arguments

The applicant seeks the annulment of Commission decision C(2008) 3182 final of 8 July 2008, in which the Commission stated that:

--    compensation paid by the French Republic to the Société Nationale Maritime Corse-Méditerranée ("SNCM") of EUR 53.48 million in respect of public service obligations constituted State aid which was unlawful, but compatible with the common market;

--    the negative sale price of EUR 158 million for SNCM, the undertaking by the Compagnie Générale Maritime et Financière ("CGMF") of social measures towards employees for an amount of EUR 38.5 million and the related and concomitant recapitalisation of SNCM by CGMF for EUR 8.75 million did not constitute State aid; and

--    restructuring aid of EUR 15.81 million which the French Republic put into operation in favour of SNCM constituted State aid which was unlawful, but compatible with the common market.

In support of its action, the applicant makes three pleas, claiming:

-- insufficient statement of reasons, in that the Commission:

did not define the market under consideration or explain the position of rival undertakings;

did not reply to certain arguments of the Compagnie Méridionale de Navigation operating on the market in question; and

did not find incompatibility with the common market of the capital contribution exceeding EUR 15.81 million declared compatible with the common market;

--    manifest errors of assessment concerning:

application of Article 86(2) EC to the capital contribution of EUR 53.48 million by way of public service compensation, inasmuch as that sum doubly compensated the same public service obligations, giving rise to over-compensation and the rewarding of deficient management and the inability of SNCM to improve its productivity in an effective manner;

the negative sale price of EUR 158 million for SNCM, which cannot be free of elements of State aid; the Commission made an incorrect interpretation of the conduct of a private investor in a market economy and erred in holding that the risk of cumulation of liabilities against the State in the event of liquidation justified regarding the sale of SNCM at a negative price as the least costly solution;

the capital contribution by CGMF of EUR 8.75 million, the Commission not having taken into consideration all the economic, financial and legal factors, and not having proved that the contribution by CGMF did not constitute State aid;

the current account contribution by CGMF of EUR 38.5 million by way of social measures towards employees, the latter placing SNCM in a more favourable position than what would have resulted from the market;

the State aid of EUR 22.52 million, none of the grounds permitting the conclusion that that aid was compatible with Community guidelines having been verified in this case;

--    infringement of the principles of proportionality and of the unitary nature of aid, in that the aid recipient SNCM did not substantially contribute to the restructuring from its own resources or from external financing obtained on market conditions, and that the measures taken in 2006 constituted unlawful support of an undertaking by the French Republic.

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