2

The background to the dispute is summarised in paragraphs 1 to 9 of the order under appeal as follows: ‘1 Following a tendering procedure relating to the operation of maritime services between Marseille and Bastia, Marseille and Ajaccio, Marseille and Balagne (Ile-Rousse and Calvi), Marseille and Porto Vecchio, and Marseille and Propriano, the group set up by the French maritime transport service operators Société nationale Corse Méditerranée (“SNCM”) and Compagnie méridionale de navigation (“CMN”) are providing services on those five sea routes for the period from 1 July 2007 to 31 December 2013 pursuant to a public service delegation contract (“the PSDC”) signed by the Corsican regional authorities (“the CRA”) and the Office des transports de Corse (Corsican Transport Board) (“the OTC”). The two concession holders receive an annual contribution from the OTC in return for a permanent passenger and freight service which they must provide all year round (“the basic service”) and an additional passenger service to be provided during peak periods, that is to say, during the Christmas period, in February, during the spring/autumn period and/or the summer period on the Marseille-Ajaccio, Marseille-Bastia and Marseille-Propriano routes (“the additional service”). 2 Under the PSDC, the final financial compensation for each concession holder for each year is limited to the amount of the operating deficit resulting from compliance with its contractual obligations, allowing for a reasonable return on the capital employed in proportion to the days when it was actually used for crossings made in performance of those obligations. To deal with the eventuality of the revenue received being lower than the forecast revenue set out by the concession holders in their tenders, the PSDC provides for an adjustment of the public compensation. After it was signed, the PSDC was amended so as to cancel over 100 crossings a year between Corsica and Marseille, to reduce the annul amounts of the “reference” financial compensation by EUR 6.5 million for the two concession holders and to place a ceiling on the annual revenue adjustment mechanism for each concession holder. 3 Services between Corsica and the ports of Nice and Toulon are mainly operated by the French company Corsica Ferries, which also participated in the tendering procedure mentioned in paragraph 1 above, but whose tenders were not accepted. In respect of those services, Corsica Ferries is subject to public service obligations pursuant to Article 4 of Council Regulation (EEC) No 3577/92 of 7 December 1992 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) (OJ 1992 L 364, p. 7), under which it is required, inter alia, to provide a minimum number of round trips per week depending on the period. Moreover, a form of social aid is in place for eligible passengers on those routes. 4 As regards services between Corsica and the French mainland in general, for many years these have been very seasonal, the bulk of passenger traffic being during the summer months. During the 2000s, the main trend in the transport markets between the French mainland and Corsica was the introduction of crossings from Toulon, now the main port offering services to Corsica in terms of traffic. This trend towards increased traffic from Toulon is consistent with the increase in the market share of Corsica Ferries. 5 In 2007, the European Commission received a complaint from Corsica Ferries concerning illegal State aid incompatible with the common market allegedly received by SNCM and CMN under the PSDC. Following the receipt of additional information from the complainant and an exchange of correspondence with the French authorities, by letter of 27 June 2012, the Commission informed the French Republic of its decision to initiate the formal investigation procedure under Article 108(2) TFEU in respect of potential aid to SNCM and CMN contained in the PSDC (OJ 2012 C 301, p. 1). On completion of that procedure, on 2 May 2013, the Commission adopted the contested decision. 6 The French Government was informed of the contested decision on 3 May 2013. 7 In the contested decision, in order to determine whether the compensation granted to SNCM and CMN constituted State aid, the Commission considered whether the criteria laid down by the Court in Case C-280/00 Altmark Trans and Regierungspräsidium Magdeburg [2003] ECR I-7747 (“the Altmark criteria”) were fulfilled in this case. It found that the basic service provided by SNCM and CMN met a genuine public service need, while the additional service, provided by SNCM alone, was neither necessary nor proportionate for the purpose of meeting such a need, and concluded that the basic service alone met the first Altmark criterion. Next, taking the view that it had not been possible on the basis of the terms and conditions set out in the call for tenders (see paragraph 1 above) to select the candidate capable of providing the services in question at the least cost to the community and that the French authorities had failed to provide any information capable of demonstrating that the compensation had been calculated by reference to a medium-sized, well run and adequately equipped undertaking, it concluded that the fourth Altmark criterion had not been fulfilled in respect of either of the services in question. According to the Commission, the compensation at issue thus constituted State aid (Article 1 of the contested decision). 8 As regards the compatibility of the aid examined with the internal market, the Commission found that the basic service was a service of general economic interest, but that that was not the case as regards the additional service. It therefore found only the compensation paid to SNCM and CMN in respect of the basic service compatible with the internal market (Article 2(2) of the contested decision) and classified the compensation paid to SNCM alone in respect of the additional service as incompatible with the internal market (Article 2(1) of the contested decision). 9 Under Article 3 of the contested decision, the Commission consequently ordered that payment of compensation in respect of the additional service be stopped immediately and that the aid already paid to the beneficiary in that connection — amounting to some EUR 220 million — be recovered. It stated that recovery of that aid must be immediate and effective and that the French authorities must ensure that the decision be implemented within four months of the date of its notification (Article 4 of the contested decision), that is to say, by 3 September 2013. The French authorities were required, within two months of that notification, to inform the Commission, inter alia, of the total amount to be recovered from the beneficiary and to send it a detailed description of the measures already adopted and planned for the purpose of complying with the decision, together with the documents proving that the recipient had been given formal notice to repay the aid (Article 5 of the contested decision).’