Opinion of the Advocate General — ECLI:EU:C:2015:209
Date: 2015-03-26
Language of the case: French
Subject matter: State aids;Competition
Procedure: Action for failure to fulfil obligations - successful
Origin: France

summary references to the brand image of a Member State, as a global player [which could be tarnished by strikes] are not enough to support a finding that there is no aid, for the purposes of EU law’. (43) 93. The same goes for the arguments raised by the French Republic in relation to the risk of a break in the territorial continuity between mainland France and Corsica which would threaten Corsica’s supplies of medicines, blood products, fuel and essential goods. 94. It is, of course, true that a protracted strike by SNCM workers, together with a blockade of the port of Marseille and of the Corsican airports, as well as solidarity strikes in the Corsican ports (as happened in 2005), present difficult challenges for the French authorities. 95. However, without repeating what I have already said about the events of 2005, (44) I would also cite to the same effect the note from the French Ministry of Civil Defence and Security of 30 September 2005 indicating the availability of the military airport of Solenzara (maintaining the possibility of supplies being airlifted), adding that the Prefect for Haute-Corse had taken other necessary measures to ensure supplies for Corsica, for example restricting sales of fuel, and that he envisaged other measures being taken such as the requisitioning of transport companies. 96. The e-mail from the French Minister for Sustainable Development of 6 October 2005 also shows that supplying Corsica with petroleum products was perfectly possibly ‘with the unloading in Ajaccio — under the protection of the security forces — of a tanker that arrived from Barcelona’. (45) That e-mail concludes by saying that ‘almost all the service stations on the island have been refuelled’. 97. It therefore seems to me that arguments based on the risk of very serious public unrest and the risk of a break in territorial continuity between mainland France and Corsica should be dismissed. 98. Any other conclusion would have the unacceptable effect of making the effectiveness of EU law dependent on the good (or ill) will or on the greater or lesser blockading capacity of certain groups whose interests are adversely affected by decisions by the European institutions or by decisions taken by Member States to comply with them. (46) Just as the Commission does, I consider that the French Republic’s reasoning is that it would have no other option than to give in to any threat to public order made by those groups. To that effect, as the Commission put it very succinctly at the hearing, political discomfort is not the same thing as an absolute impossibility of implementation. 4. Lack of sincere cooperation 99. I would add that, if a Member State experiences difficulties in implementing a decision of the Commission, the case-law of the Court of Justice obliges the Commission and the Member State ‘pursuant to the rule imposing on the Member States and the [EU] institutions reciprocal duties of genuine cooperation, which underlies, in particular, Article [4(3) TEU], [to] work together in good faith with a view to overcoming those difficulties whilst fully observing the Treaty provisions and, in particular, the provisions on State aid’. (47) 100. The Court has held, on several occasions, that ‘the condition that it be absolutely impossible to implement a decision is not fulfilled where the defendant Member State merely informs the Commission of the legal, political or practical difficulties involved in implementing the decision, without taking any real steps to recover the aid from the undertakings concerned, and without proposing to the Commission any alternative arrangements for implementing the decision which could have enabled those difficulties to be overcome’. (48) 101. It is clear from the file that the French Republic did not take any steps of that sort with the undertakings concerned and did not propose to the Commission any alternative arrangements for implementing the decision which could have enabled the alleged difficulties to be overcome. 102. Consequently, the French Republic failed in its duty to take, within the prescribed periods, all the measures necessary to recover from the undertakings concerned the State aid declared unlawful and incompatible with the internal market by Article 2(1) of the decision at issue. B – Second ground for complaint: failure to cancel all payments of illegal aid 103. In its application, the Commission complains that the French Republic did not, within the prescribed periods, cancel all payments of aid referred to in Article 2(1) of the decision at issue. 104. According to the Commission, despite what is laid down in Article 3(4) of the decision at issue, those payments were neither immediately suspended nor cancelled. In its application, the Commission explains that the OTC’s initial budget for 2013, adopted by its Board of Directors on 25 June 2013, included two financial compensation payments in favour of SNCM and CMN, of EUR 78 014 930 and EUR 32 627 141 respectively. These sums apparently cover both the basic service and additional service, given the corresponding sums for previous years. 105. The Commission also refers to the e-mail of 29 November 2013 (49) in which the French authorities assert that they stopped payment of compensation for the additional service in July 2013, as evidenced by a payment order from the OTC to SNCM recording payment relating only to the basic service. 106. However, according to the Commission, that payment order does not prove that payment of the compensation for the additional service was stopped in July 2013, but simply records the payment relating to the basic service, without the slightest indication on the part of the French authorities of the way in which that amount has been calculated. 107. In its defence, the French Republic affirms that payment of compensation for the additional service was indeed stopped with effect from July 2013. It relies on: – the payment order concerned which, according to the French Republic, shows that for the month of July 2013 the OTC paid to SNCM only EUR 2 880 160 in respect of the basic service; – the extracts from SNCM’s bank statements annexed to its defence showing that, with effect from July 2013, SNCM received only EUR 2 880 160 for the basic service instead of EUR 6 130 160 received in June 2013 for the basic service and the additional service; and – the application for interim measures lodged by SNCM at the Tribunal Administrative de Bastia (Administrative Court, Bastia, France) on 12 December 2013 seeking an order that the OTC pay a sum of EUR 16 225 000 for non-payment of the compensation in relation to the additional service. 108. The French Republic also states that, in order to calculate the amount of compensation to be paid to SNCM in respect of the basic service for the months of July to December 2013, the OTC used the method employed by the Commission at paragraph 218 of the decision at issue. 109. In view of these factors, the Commission, in its reply, abandoned that ground for complaint, inasmuch as it concerned the failure to suspend compensation payments to SNCM for the additional service with effect from 23 July 2013 and the lack of satisfactory information about that suspension. 110. Nevertheless, the Commission maintains its ground for complaint based on the lack of suspension of compensation payments to SNCM for the additional service in respect of the period running from the notification of the decision at issue to the French Republic, which occurred on 3 May 2013, until 23 July 2013. It would appear from SNCM’s bank extracts that, during that period, the French authorities made three monthly payments to SNCM, each of EUR 6 130 160. 111. In its rejoinder, the French Republic does not dispute that fact, as it confirmed during the hearing. 112. The suspension of payment of compensation for the additional service was supposed to take place from notification of the decision at issue to the French Republic, namely on 3 May 2013, as set out in Article 3(4) of that decision. As the Commission observes, there is no indication, nor even an allegation by the French authorities, that payments for the additional service between 3 May and 23 July 2013 were suspended or cancelled. Neither is there any sign of any recovery by the French authorities of the sums that would have been paid during that period. 113. Consequently, by not having cancelled, within the prescribed periods, all of the aid payments referred to in Article 2(1), the French Republic failed to fulfil its obligations under Article 3(4) of the decision at issue. C – Third ground for complaint: failure to inform the Commission 114. As the French Republic did not take, within the prescribed periods, the necessary measures to cancel future aid payments or to recover the amounts of aid already paid, it also failed in its obligation to inform the Commission of the measures taken within the two months following notification of the decision at issue, as required by Article 5 of that decision. 115. That finding is supported by the fact that the French Republic also failed to respond to the observations and requests for clarification sent to it by the Commission in the absence of any communication from the French authorities. 116. I quote, by way of example, the letter from the Commission to the French Permanent Representation to the European Union, dated 20 September 2013, in which the Commission complained about the fact that its observations and requests for clarification ‘[had] not met with any reply’ and that ‘at the end of the various periods prescribed by the [decision at issue], the French authorities [had] not supplied the Commission staff with the slightest piece of information about the implementation of the decision’. (50) The French authorities took two months to react to this reminder letter, via their e-mail of 29 November 2013. VI – Costs 117. Under Article 138(1) of the Rules of Procedure of the Court of Justice, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 118. In the present case, the Commission has applied for costs against the French Republic and the French Republic should, in my view, be found unsuccessful in all essential respects. The French Republic should therefore be ordered to pay the whole of the costs. VII – Conclusion 119. On the basis of the above considerations, I propose that the Court should order as follows: (1) By failing to take, within the prescribed periods, all the measures necessary to recover from Société Nationale Maritime Corse-Méditerranée (SNCM) SA the State aid declared illegal and incompatible with the internal market by Article 2(1) of Commission Decision 2013/435/EU of 2 May 2013 on State aid SA.22843 (2012/C) (ex 2012/NN) implemented by France in favour of Société Nationale Maritime Corse-Méditerranée and the Compagnie Méridionale de Navigation; by not having cancelled, within the prescribed periods, all the aid payments referred to in that Article 2(1); and, by not having informed the European Commission, within the prescribed period, of the measures taken to comply with that decision, the French Republic has failed to fulfil its obligations under the fourth paragraph of Article 288 TFEU and Articles 3, 4 and 5 of that decision. (2) The French Republic is ordered to pay the costs. 1 Original language: French. 2 See judgment of the Court of Justice in SNCM and France v Corsica Ferries France (C‑533/12 P and C‑536/12 P, EU:C:2014:2142); judgments of the General Court in Corsica Ferries France v Commission (T‑349/03, EU:T:2005:221), and in Corsica Ferries France v Commission (T‑565/08, EU:T:2012:415); and order of the General Court in Corsica Ferries France v Commission (T‑231/05, EU:T:2006:2). See also France v Commission (T‑366/13), SNCM v Commission (T‑454/13), France v Commission (T‑74/14) and SNCM v Commission (T‑1/15) (cases pending before the General Court of the European Union). 3 OJ 2013 L 220, p. 20 4 OJ 1999 L 83, p. 1 5 See summary appearing in the Official Journal of the European Union of 5 October 2012 (OJ 2012 C 301, p. 1). 6 France v Commission (T‑366/13) and SNCM v Commission (T‑454/13), pending before the General Court. 7 See order of the President of the General Court in France v Commission (T‑366/13 R, EU:T:2013:396). 8 See order of the Vice-President of the Court of Justice in France v Commission (C‑574/13 P(R), EU:C:2014:36). 9 See newspaper article in Le Monde, 29 November 2014, p. 16, entitled ‘SNCM: quatre repreneurs étudieraient le dossier’. 10 See newspaper article in Le Monde, 4 February 2015, entitled ‘SNCM: quatre offres de reprise sont jugées sérieuses’, available online [in French] at the following address: http://www.lemonde.fr/economie/article/2015/02/04/sncm-quatre-offres-de-reprise-sont-jugees-serieuses_4569801_3234.html. 11 See ‘Nouveau rendez-vous judiciaire le 18 mars pour la SNCM’, France 3, 5 February 2015, available online [in French] at the following address: http://france3-regions.francetvinfo.fr/provence-alpes/2015/02/05/nouveau-rendez-vous-judiciaire-le-18-mars-pour-la-sncm-648939.html. 12 See Commission 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). 13 Judgment in Corsica Ferries France v Commission (T‑349/03, EU:T:2005:221, paragraph 315). 14 See Commission Decision 2009/611/EC of 8 July 2008 concerning the measures C 58/02 (ex N 118/02) which France has implemented in favour of the Société Nationale Maritime Corse-Méditerranée (SNCM) (OJ 2009 L 225, p. 180). 15 Judgment in SNCM and France v Corsica Ferries France (C‑533/12 P and C‑536/12 P, EU:C:2014:2142). It should be noted that the Commission was not joined to the appeals brought by the SNCM and the French Republic and did not intervene in them. 16 See Commission Decision 2014/882/EU of 20 November 2013 concerning the State aid SA.16237 (C58/02) (ex N118/02) implemented by France in favour of SNCM (OJ 2014 L 357, p. 1). 17 See France v Commission (T‑74/14) and SNCM v Commission (T‑1/15), both pending before the General Court. 18 See order of the President of the General Court in France v Commission (T‑366/13 R, EU:T:2013:396). 19 See order of the Vice-President of the Court of Justice in France v Commission (C‑574/13 P(R), EU:C:2014:36). 20 My emphasis. 21 My emphasis. 22 Judgment in Commission v France (C‑214/07, EU:C:2008:619, paragraph 44). See also, to that effect, judgments in Commission v Belgium (52/84, EU:C:1986:3, paragraph 16); Commission v Germany (94/87, EU:C:1989:46, paragraph 9); Commission v Greece (C‑183/91, EU:C:1993:233, paragraph 19); Commission v Portugal (C‑404/97, EU:C:2000:345, paragraph 39); Commission v France (C‑261/99, EU:C:2001:179, paragraph 23); Commission v Spain (C‑404/00, EU:C:2003:373, paragraph 45), and Commission v Spain (C‑177/06, EU:C:2007:538, paragraph 46). 23 The debate in this case concerns only SNCM since CMN did not receive financial compensation other than for the basic service which was declared by the Commission as illegal aid but compatible with the interior market under Article 106(2) TFEU (see paragraph 213 of the decision at issue). 24 My emphasis. 25 See order of the President of the General Court in France v Commission (T‑366/13 R, EU:T:2013:396, paragraph 41), confirmed on appeal by the order of the Vice-President of the Court of Justice of 21 January 2014 in France v Commission (C‑574/13 P(R), EU:C:2014:36). 26 See order of the President of the Court of Justice in Alcoa Trasformazioni v Commission (C‑446/10 P(R), EU:C:2011:829, paragraph 46). See also, to that effect, orders of the President of the Court of Justice in Deufil v Commission (310/85 R, EU:C:1986:58, paragraph 22), and Belgium v Commission (142/87 R, EU:C:1987:281, paragraph 26), and of the President of the General Court in France v Commission (T‑366/13 R, EU:T:2013:396, paragraph 44). 27 By way of reminder, this occurred only on 9 January 2015 and for a sum less than the EUR 220 224 000 provided for in the decision at issue. According to the Commission, issuing a writ of execution is only the ‘commencement of implementation of the decision at issue. 28 See judgment in Commission v Spain (C‑610/10, EU:C:2012:781, paragraph 104). See also judgments in Commission v Poland (C‑331/09, EU:C:2011:250, paragraphs 63 to 65) and Commission v Italy (C‑454/09, EU:C:2011:650, paragraphs 35 and 36). 29 My emphasis. 30 See point 29 of this Opinion and newspaper article in Le Monde, 29 November 2014, p. 16, entitled ‘SNCM: quatre repreneurs étudieraient le dossier’. 31 One of the entrepreneurs bidding for the company declared that ‘the key [to the file] is knowing whether the successful offer meets the criteria of legal discontinuity sought by the European Commission. If not, the buyer selected might in fact have to repay the illegal aid. All the offers, and in any event, mine, are conditional on that risk being removed …’, see newspaper article in Corse-Matin 6 February, entitled ‘SNCM: “Nous serons très attentifs aux attentes de la Corse”’ available online [in French] at the following address: http://www.corsematin.com/article/derniere-minute/sncm-%C2%ABnous-serons-tres-attentifs-aux-attentes-de-la-corse%C2%BB.1689605.html. See also points 31 and 32 of this Opinion. 32 Judgment in Commission v Spain (C‑610/10, EU:C:2012:781, paragraph 106). My emphasis. See also, to that effect, judgment in Germany v Commission (C‑277/00, EU:C:2004:238, paragraph 86). 33 Judgment in Commission v Italy (C‑280/95, EU:C:1998:28, paragraph 16). See also, to that effect, judgments in Commission v France (C‑52/95, EU:C:1995:432, paragraph 38); Commission v France (C‑265/95, EU:C:1997:595, paragraph 55); Commission v France (C‑441/06, EU:C:2007:616, paragraph 43), and Commission v Poland (C‑331/09, EU:C:2011:250, paragraph 72). 34 Judgment in Italy v Commission (C‑6/97, EU:C:1999:251, paragraph 34). 35 These are: Commission Regulation (EEC) No 1326/91 of 21 May 1991 concerning the stopping of fishing for anchovy by vessels flying the flag of France (OJ 1991 L 127, p. 11), and Commission Regulation (EEC) No 942/92 of 13 April 1992 concerning the stopping of fishing for anchovy by vessels flying the flag of France (OJ 1992 L 101, p. 42). 36 Judgment in Commission v France (C‑52/95, EU:C:1995:432, paragraph 37). 37 Ibid. (paragraph 38). 38 Judgment in Commission v France (C‑265/95, EU:C:1997:595, paragraph 54). 39 Ibid. (paragraph 56). My emphasis. 40 Ibid. paragraph 57). 41 I fail to see how taking those steps after the decision of the Tribunal de Commerce de Marseille would have dispelled all risk of social unrest, as the French Republic claimed during the hearing. 42 See also my Opinion in SNCM and France v Corsica Ferries France (C‑533/12 P and C‑536/12 P, EU:C:2014:4, points 72 et 73). 43 Judgment in SNCM and France v Corsica Ferries France (C‑533/12 P and C‑536/12 P, EU:C:2014:2142, paragraphs 40 and 41). See also, to that effect, judgment in Corsica Ferries v Commission (T‑565/08, EU:T:2012:415, paragraphs 103 and 104). 44 See point 88 of this Opinion. 45 My emphasis. 46 See, to that effect, judgment in Commission v France (C‑121/07, EU:C:2008:695, paragraph 72) where the Court held that, even on the assumption that the social unrest referred to by the French Republic is in fact attributable in part to the implementation of Community rules, a Member State may not plead difficulties of implementation which emerge at the stage when a Community measure is put into effect, including difficulties relating to opposition on the part of certain individuals, to justify a failure to comply with obligations and time-limits laid down by Community law’. 47 Judgment in Commission v France (C‑214/07, EU:C:2008:619, paragraph 45). See also, to that effect, judgments in Commission v Italy (C‑348/93, EU:C:1995:95, paragraph 17); Commission v France (C‑261/99, EU:C:2001:179, paragraph 24), and Commission v Spain (C‑485/03 to C‑490/03, EU:C:2006:777). 48 Judgment in Commission v France (C‑214/07, EU:C:2008:619, paragraph 46). See also, to that effect, judgments in Commission v Spain (C‑404/00, EU:C:2003:373, paragraph 47); Commission v Italy (C‑99/02, EU:C:2004:207, paragraph 18); Commission v Greece (C‑415/03, EU:C:2005:287, paragraph 43), and Commission v Spain (C‑485/03 to C‑490/03, EU:C:2006:777, paragraph 74). 49 See point 23 of this Opinion. 50 My emphasis.