Case T-349/03

Corsica Ferries France SAS

v

Commission of the European Communities

(State aid – Application for annulment – Restructuring aid – Decision declaring the aid to be compatible with the common market – Commission guidelines – Obligation to state reasons – Compliance with conditions – Aid limited to the minimum)

Judgment of the Court of First Instance (Third Chamber), 15 June 2005

Summary of the Judgment

1. Actions for annulment – Pleas in law – Lack of or inadequate statement of reasons – Distinguished from manifest error of assessment

(Arts 230 EC and 253 EC)

2. Acts of the institutions – Statement of reasons – Obligation – Scope – Commission decision on State aid – Decision on aid for restructuring firms in difficulty

(Arts 87(1) and (3)(c) EC and 253 EC; Community guidelines on State aid for restructuring and rescuing firms in difficulty)

3. State aid – Prohibition – Derogations – Discretion of the Commission – Judicial review – Limits

(Art. 87(3)(c) EC)

4. State aid – Prohibition – Derogations – Discretion of the Commission – Possibility of adopting guidelines – Binding effect – Judicial review

(Art. 87(3)(c) EC)

5. Actions for annulment – Contested measure – Assessment of legality in the light of the information available at the time of adoption of the measure – Retrospective considerations – No effect

(Art. 230 EC)

6. State aid – Prohibition – Derogations – Aid which may be considered compatible with the common market – Aid for restructuring firms in difficulty – Identification of firms in difficulty

(Art. 87(3)(c) EC; Community guidelines on State aid for restructuring and rescuing firms in difficulty, points 4, 5(a) and 6)

7. State aid – Prohibition – Derogations – Aid which may be considered compatible with the common market – Aid for restructuring firms in difficulty – Conditions – Limitation to the strict minimum needed – Restructuring plan including an undertaking to dispose of non-essential assets – Consequence – Obligation to use the whole of the proceeds of the disposal to fund the restructuring plan

(Art. 87(3)(c) EC; Community guidelines on State aid for restructuring and rescuing firms in difficulty, point 40)

8. State aid – Prohibition – Derogations – Aid which may be considered compatible with the common market – Aid for restructuring firms in difficulty – Discretion of the Commission – Power to make an approximate evaluation of the net proceeds of the disposal of assets under the restructuring plan – Limit

(Art. 87(3)(c) EC)

9. Acts of the Community institutions – Statement of reasons – Obligation – Scope – Correction of an error of reasoning during the proceedings before the Court – Not permissible

(Art. 253 EC)

1. A plea based on infringement of Article 253 EC is a separate plea from one based on a manifest error of assessment. While the former, which alleges absence of reasons or inadequacy of the reasons stated, goes to an issue of infringement of essential procedural requirements within the meaning of Article 230 EC and, involving a matter of public policy, must be raised by the Community judicature of its own motion, the latter, which goes to the substantive legality of a decision, is concerned with the infringement of a rule of law relating to the application of the Treaty, again within the meaning of Article 230 EC, and can be examined by the Community judicature only if it is raised by the applicant. The obligation to state reasons is thus a separate question from that of the merits of those reasons.

It would therefore be inappropriate for the Court to examine, in considering fulfilment of the obligation to state reasons, the substantive legality of the reasons relied on by the Commission to justify its decision.

It follows that, in a plea based on a failure to state reasons or a lack of adequate reasons, objections and arguments which aim to challenge the merits of the contested decision are misplaced and irrelevant.

(see paras 52, 58-59)

2. The scope of the duty to state reasons depends on the nature of the measure in question and on the context in which it was adopted. The statement of reasons must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure, so as to enable the persons concerned to ascertain the reasons for it so that they can defend their rights and ascertain whether or not the measure is well founded and to enable the Community judicature to exercise its power of review.

It is not necessary for the statement of reasons to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC of the Treaty must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question.

In particular, the Commission is not obliged to adopt a position on all the arguments relied on by the parties concerned, for example, matters which were manifestly irrelevant or insignificant or plainly of secondary importance, and it is sufficient if it sets out the facts and the legal considerations having decisive importance in the context of the decision.

With regard to the characterisation of a measure as aid, the obligation to state reasons requires that the reasons which led the Commission to consider that the measure concerned falls within the scope of Article 87(1) EC should be stated.

As regards the compatibility of State aid for restructuring with Article 87(3)(c) EC, the obligation to state reasons is complied with when the Commission’s decision states the reasons why it considers the aid to be justified having regard to the conditions laid down in the Community Guidelines on State aid for rescuing and restructuring firms in difficulty, in particular, the existence of a restructuring plan, satisfactory evidence as to the long-term viability and the proportionality of the aid, in light of the contribution of the beneficiary of it.

(see paras 62-66, 132)

3. In the application of Article 87(3)(c) EC, the Commission has a wide discretion, the exercise of which involves complex economic and social assessments which must be made in a Community context. Judicial review of the manner in which that discretion is exercised is confined to establishing that the rules of procedure and the rules relating to the duty to give reasons have been complied with and to verifying the accuracy of the facts relied on and that there has been no error of law, manifest error of assessment in regard to the facts or misuse of powers. Consequently, it is not for the Court to substitute its own economic assessment for that of the author of the decision.

(see paras 137-138)

4. The Commission is bound by the guidelines and notices that it issues in the area of supervision of State aid inasmuch as they do not depart from the rules in the Treaty and are accepted by the Member States.

Accordingly, by assessing specific aid in the light of such guidelines, previously adopted by it, the Commission cannot be considered to exceed the limits of its discretion or to waive that discretion. On the one hand, it retains the power to repeal or amend any guidelines if the circumstances so require. On the other, the guidelines concern a defined sector and are based on the desire to follow a policy established by it.

In that context, it is for the Court to verify whether the requirements which the Commission has itself laid down, as mentioned in those guidelines, have been observed.

(see paras 139-141)

5. In an action for annulment under Article 230 EC, the legality of a Community measure must be assessed on the basis of the elements of fact and of law existing at the time when the measure was adopted and cannot depend on the possible existence of opportunities for circumvention or on retrospective considerations of its efficacy.

In particular, complex assessments made by the Commission must be examined solely on the basis of the information available to it at the time when those assessments were made.

(see paras 142-143)

6. Although the Community Guidelines on State aid for rescuing and restructuring firms in difficulty provide that a firm is ‘in any event’ regarded as being in difficulty where a material part of its share capital has disappeared, there is nothing to prevent a firm from establishing that it is in financial difficulty for the purposes of the guidelines by the use of other evidence, even if it has not lost a significant part of its share capital.

(see para. 185)

7. Where, in order to benefit from restructuring aid, an undertaking undertook in its restructuring plan to dispose of non-essential assets, it must apply the whole of the proceeds of disposal of those assets to the funding of the restructuring plan. That obligation does not oblige the beneficiary of aid in any way to use all of its resources to reduce the amount of the aid granted, but only to use all the resources generated by assets considered to be non-essential in carrying on the company’s activities for the purposes of its restructuring. Such a contribution to the restructuring plan from the beneficiary out of its own resources is necessary in order to ensure that the aid remains, as required by point 40 of the Community Guidelines on State aid for rescuing and restructuring firms in difficulty, limited to the strict minimum needed to enable restructuring to be undertaken on the basis of the existing financial resources of the beneficiary company, its shareholders or the business group to which it belongs.

(see paras 266, 313)

8. When assessing the compatibility of restructuring aid with the common market, the Commission is not bound to estimate the specific cost of each of the measures to be undertaken by the company in question. Besides the fact that a precise evaluation of the various items of expenditure would in any event have been uncertain owing to the prospective nature of the measures envisaged, the Commission is entitled, in the exercise of its broad discretion, to confine itself to an overall assessment.

It follows that the Commission is, in principle, entitled, in the exercise of its broad discretion, to proceed on the basis of an approximate evaluation of the net proceeds of the disposal of assets provided for in the restructuring plan, having regard to the difficulty of determining those proceeds with precision.

However, if the assets to be disposed of under the plan have in fact already been disposed of and the Commission is therefore aware of the actual amount of the net proceeds of that disposal, the Commission, in the light, in particular, of the principle laid down under Article 87(1) EC that State aid is prohibited, cannot, when determining whether the aid was limited to the minimum, restrict itself as regards those assets to an assessment ‘in overview’ of the reserves available.

(see paras 272-273, 278, 282-283)

9. The reasons for a decision must appear in the actual body of the decision and, save in exceptional circumstances, explanations given ex post facto cannot be taken into account. It follows that the decision must be self-sufficient and that the reasons on which it is based may not be stated in written or oral explanations given subsequently when the decision in question is already the subject of proceedings brought before the Community judicature.

(see para. 287)

JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

15 June 2005 ( )

(State aid – Application for annulment – Restructuring aid – Decision declaring the aid to be compatible with the common market – Commission guidelines – Obligation to state reasons – Compliance with conditions – Aid limited to the minimum)

In Case T-349/03,

Corsica Ferries France SAS, established in Bastia (France), represented by S. Rodrigues and C. Scapel, lawyers, with an address for service in Luxembourg,

applicant,

v

Commission of the European Communities, represented by C. Giolito and H. van Vliet, acting as Agents, with an address for service in Luxembourg,

defendant,

supported by

French Republic, represented by G. de Bergues and S. Ramet, acting as Agents, with an address for service in Luxembourg,

and by

Société nationale maritime Corse-Méditerranée (SNCM) SA, established in Marseilles (France), represented initially by H. Tassy, and subsequently by O. d’Ormesson and A. Bouin, lawyers,

interveners,

APPLICATION for annulment of 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),

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Third Chamber),

composed of M. Jaeger, President, V. Tiili and O. Czúcz, Judges,

Registrar: I. Natsinas, Administrator,

having regard to the written procedure and further to the hearing on 18 November 2004,

gives the following

Judgment

Legal framework

1 Article 87 EC states that:

‘1. Save as otherwise provided in this Treaty, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the common market.

…

3. The following may be considered to be compatible with the common market:

…

(c) aid to facilitate the development of certain economic activities or of certain economic areas, where such aid does not adversely affect trading conditions to an extent contrary to the common interest …’

2 Section 8 of the Community guidelines on State aid to maritime transport (OJ 1997 C 205, p. 5) provides that the Commission is to apply the guidelines on restructuring and rescuing firms in difficulty to restructuring aid for maritime companies.

3 In the Community guidelines on State aid for rescuing and restructuring firms in difficulty (OJ 1999 C 288, p. 2) (‘the guidelines’), which apply from 9 October 1999, the Commission sets out the conditions under which the aid concerned may be declared to be compatible with the common market under Article 87(3)(c) EC. Point 3.2.2 of the guidelines states that those conditions concern the question whether the beneficiary qualifies as a firm in difficulty, restoration of viability, the avoidance of undue distortions of competition, the limitation of aid to the minimum, the imposition of conditions and obligations necessary in order to ensure that the aid does not distort competition to an extent contrary to the common interest and the full implementation of a restructuring plan.

4 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) requires Member States to open up national cabotage markets. Article 4 of that regulation provides that whenever a Member State concludes public service contracts, it is to do so on a non-discriminatory basis in respect of all Community shipowners.

Facts

1. Relevant shipping companies

5 The applicant is a shipping company operating regular services to Corsica from mainland France (Toulon and Nice) and Italy (Savona and Livorno).

6 The Société nationale maritime Corse-Méditerranée (‘SNCM’) is a shipping company operating regular services to Corsica from mainland France (Nice, Toulon and Marseilles) and to North Africa (Tunisia and Algeria) from mainland France and seasonal services to Sardinia from April to September.

7 Currently, 80% of SNCM’s shares are held by the Compagnie générale maritime et financière (‘CGMF’) and 20% by the Société nationale des chemins de fer (‘SNCF’). The objects of CGMF, in which the French State has a direct 100% share, are the authorisation of any operations of maritime transport, outfitting and chartering of ships and the acquisition of shares and any commercial or industrial operations directly or indirectly connected with those objects.

8 SNCM holds a minority interest in the Compagnie méridionale de navigation (‘CMN’), a shipping company operating between Marseilles and Corsica, which is controlled by the Stef-TFE Group through the Compagnie méridionale de participation.

2. Public service obligations relating to shipping services between mainland France and Corsica

9 Since 1948, regular shipping services between mainland France and Corsica have been operated as public service obligations.

10 Until 1976, those services were provided under a system partly regulated by French law, as a national cabotage monopoly. Under that system, the State paid companies providing the service a lump-sum subsidy to balance their accounts in return for fulfilling public service requirements concerning the ports to be served, regularity, frequency, the capacity to provide the service, fares charged and the crewing of the ship.

11 In 1976, France laid down new conditions for providing public shipping services to Corsica on the basis of a territorial continuity principle. That principle aims to limit the disadvantages involved in being an island and to ensure that the island is served in a way which resembles services on the mainland as closely as possible. A concessions scheme was established with a set of specifications laying down the public service framework. A framework agreement was concluded with SNCM and CMN for a period of 25 years, expiring on 31 December 2001.

12 Between 1976 and 1982, the French Government established, on the basis of that framework agreement, the procedures for providing the service.

13 The Law of 30 July 1982 conferring special status on the region of Corsica transferred to the Corsican Assembly the management of territorial continuity in a contractual framework with the French State. Subsequently, the Law of 13 May 1991 conferring status on the territorial community of Corsica granted that assembly full responsibility for services to the island. Since then, those services have been administered by the Office des transports de la Corse (‘OTC’).

14 Since 1991, two five-year agreements have been concluded between the OTC and the two concessionary companies on the basis of the framework agreement. The first of those agreements (‘the 1991 agreement’) specified the manner in which the public service was to be performed for the period from 1991 to 1996 and the second (‘the 1996 agreement’) did so in relation to the period from 1996 to 2001. The agreements also laid down the principles governing the payment of the lump-sum subsidy from the budget for territorial continuity in return for the obligations imposed. At the time, the public service obligations covered all services to Corsica from three ports in mainland France, namely Nice, Toulon and Marseilles.

15 In 2001, acting under Regulation No 3577/92, the Corsican regional authority issued a call for tenders in order to select the operator responsible for operating the public services between mainland France and Corsica under a five-year contract from 1 January 2002, in return for financial compensation. Given the increase in competition on crossings from Toulon and Nice, the Corsican regional authority decided that only services operated from Marseilles should be subject to those public service obligations.

16 The contract was awarded jointly to SNCM and CMN, as the applicant withdrew its bid.

17 Under a ‘public service delegation agreement’ (‘the 2002 agreement’) concluded between the Corsican regional authority and OTC, SNCM and CMN are required, as concessionaries, to provide regular shipping services between Marseilles and Corsica from 1 January 2002, subject to a duty to comply with a number of public service obligations regarding frequency, capacity, timetables, fares (maximum fares according to season, mandatory reductions for certain categories of persons) and service quality. Under that agreement, those obligations are to be performed in exchange for financial compensation, termed ‘reference compensation’, paid on a reducing annual basis, the amount of which is determined on the basis of anticipated revenue and is adjusted at the end of each year in line with the difference between anticipated revenue and actual revenue. The agreement provides that the maximum amount of financial compensation for the whole of the period covered by it is to be EUR 326.85 million for SNCM and EUR 128.2 million for CMN, that is to say a total of EUR 455.05 million. The 2002 agreement also provides that the final annual compensation for each concessionary is to be limited to the operational deficit incurred in providing the public service obligations allowing for a reasonable return on marine capital employed in proportion to its effective utilisation, with that reasonable return being set at 15% of the market value of the vessels, as defined in the agreement. The 2002 agreement expires on 31 December 2006 unless previously terminated by agreement between all the parties.

Administrative procedure

1. Aid in favour of SNCM by way of compensation for public service obligations under the 1991 agreement and the 1996 agreement

18 On 22 December 1998, following objections regarding aid granted to Corsica Marittima, a subsidiary of SNCM which carries passengers between Corsica and Italy, the Commission communicated to the French Republic its decision to initiate the formal investigation procedure in respect of the aid under Article 93(2) of the EC Treaty (now Article 88(2) EC) (OJ 1999 C 62, p. 9). That case was registered as Case C-78/98.

19 On 28 February 2001, following fresh complaints regarding the aid received by SNCM to cover the cost of its public service obligations, the Commission communicated to the French Republic its decision to initiate the formal investigation procedure in respect of the aid under Article 88(2) EC (OJ 2001 C 117, p. 9). That case was registered as Case C-14/01.

20 By Decision 2002/149/EC of 30 October 2001 on the State aid awarded by France to SNCM (OJ 2002 L 50, p. 66), the Commission, closing the procedures initiated in Cases C-78/98 and C-14/01, held that the aid of EUR 787 million granted to SNCM for the period from 1999 to 2001 by way of compensation for the public service obligations provided to Corsica from three ports on mainland France, namely Nice, Toulon and Marseilles, by SNCM was compatible with the common market under Article 86(2) EC. No action for annulment of that decision has been brought before the Court of First Instance.

2. Rescue aid and restructuring aid in favour of SNCM

21 On 20 December 2001, the French authorities notified the Commission of a cash advance from CGMF to SNCM of EUR 22.5 million by way of rescue aid. That aid was registered as NN 27/2002 (formerly N 849/2001), as it had already been paid in part to SNCM.

22 By letter of 18 February 2002, the French Republic notified the Commission of a plan to grant aid for the restructuring of SNCM. The proposed restructuring aid comprised the recapitalisation of SNCM, through CGMF, in the sum of EUR 76 million, thereby increasing SNCM’s capital from EUR 30 million to EUR 106 million. That aid was registered by the Commission as notified aid under reference N 118/2002.

23 By Decision C (2002) 2611 final of 17 July 2002, the Commission authorised the rescue aid to SNCM under the preliminary procedure for investigating aid laid down under Article 88(3) EC. In its decision, the Commission held that the aid notified satisfied the five criteria laid down under the guidelines, in particular the undertaking by the French State to notify a restructuring plan. No action for annulment of that decision has been brought before the Court of First Instance.

24 By letter of 19 August 2002 addressed to the French Republic, the Commission, having determined in a preliminary investigation that the restructuring aid notified gave rise to concerns as to its compatibility with the common market, decided to initiate the formal investigation procedure under Article 88(2) EC in accordance with Article 4(4) and Article 6 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88] of the EC Treaty (OJ 1999 L 83, p. 1) (‘the decision to initiate the formal investigation procedure’). The aid notified was registered under the new reference C-58/2002.

25 By letter of 8 October 2002, sent on 15 October together with its annexes, the French authorities communicated their observations on the decision to initiate the formal investigation procedure to the Commission.

26 On 11 December 2002, the decision to initiate the formal investigation procedure, accompanied by a summary, was published in the Official Journal of the European Communities (OJ 2002 C 308, p. 29). Interested parties were invited to submit their observations on the plan to provide aid as notified within a period of one month from the date of publication.

27 By letter of 8 January 2003, the applicant submitted to the Commission its written observations on the decision to initiate the formal investigation procedure. In addition, the Commission received observations from the Stef-TFE Group and from various local and regional authorities. The Commission forwarded all the observations received to the French Republic and gave it the opportunity to comment on them.

28 On 4 February 2003, at the applicant’s request, the Commission held a meeting with it, during which the applicant provided it with further documents.

29 By letter of 10 February 2003, the French authorities submitted arguments to the Commission intended to show that the plan to provide aid complied with the guidelines, together with details of new undertakings regarding the number of staff and level of wages, control of intermediate consumption and SNCM’s fares policy.

30 By letter of 13 February 2003, the French authorities provided the Commission with their comments on the observations of the applicant and Stef-TFE.

31 By letter of 21 February 2003, the French authorities replied to the additional questions raised in the Commission’s letter of 10 February 2003.

32 By fax of 27 May 2003, the French authorities provided the Commission with their comments on the documents which the applicant had submitted to the Commission on 4 February 2003 and which the latter had forwarded to the French authorities by letter of 21 February 2003.

33 On 9 July 2003, the Commission adopted Decision 2004/166/EC on aid which France intends to grant for the restructuring of SNCM (OJ 2004 L 61, p. 13). That decision (‘the contested decision’) is the subject of the present action for annulment.

34 The operative part of the decision is worded as follows:

‘Article 1

The restructuring aid which France plans to grant to [SNCM] is compatible with the common market under the conditions laid down in Articles 2 to 5.

Article 2

From the date on which this Decision is notified and until 31 December 2006, SNCM shall refrain from acquiring new ships and signing contracts for building, ordering or chartering new or renovated ships.

From the date on which this Decision is notified and until 31 December 2006, SNCM can only operate the 11 ships which SNCM already possesses, namely: the Napoléon Bonaparte, Danielle Casanova, Île de Beauté, Corse, Liamone, Aliso, Méditerranée, Pascal Paoli, Paglia Orba, Monte Cinto and Monte d’Oro.

If for reasons beyond its control SNCM has to replace one of its ships before 31 December 2006, the Commission may authorise such a replacement on the basis of a duly reasoned notice served by France.

Article 3

SNCM group shall dispose of all its direct and indirect holdings in the following companies:

– Amadeus France,

– Compagnie Corse Méditerranée,

– Société civile immobilière Schuman,

– Société méditerranéenne d’investissements et de participations,

– Someca.

Instead of disposing of its holdings in Société méditerranéenne d’investissements et de participations, SNCM may sell this company’s sole asset, the Southern Trader, and close down this subsidiary.

The disposals may be made, at the choice of the French authorities, either through public auction or through a call for expressions of interest published in advance, providing for a minimum period of two months for any response.

France shall provide the Commission with proof of all these disposals. The low level of bids which SNCM might receive cannot be invoked as a reason for not going ahead with the disposals. If there are no bids and if France can show proof that all the necessary publicity has been made, the condition laid down in the first paragraph shall be deemed to have been complied with.

Article 4

In respect of all links to Corsica, SNCM shall, from the date on which this Decision is notified and until 31 December 2006, refrain from pursuing a fares policy in respect of published fares intended to offer lower fares than those of each of its competitors for equivalent destinations and services and identical dates.

The Commission reserves the right to initiate an investigation procedure whenever it finds that the conditions laid down in this Decision have not been complied with, and in particular the condition laid down in the first paragraph.

The condition laid down in the first paragraph is complied with if every day the lowest prices advertised by SNCM are higher than the lowest promotional prices advertised by each of its competitors for equivalent destinations and services.

The condition laid down in the first paragraph shall no longer apply if the prices of the said competitors exceed SNCM’s fares that were in force in the reference year 1996, corrected for inflation.

Before 30 June each year, France shall inform the Commission of all the elements necessary to show that this condition has been duly complied with in the preceding calendar year in respect of all crossings to or from Corsica.

Article 5

In accordance with the commitments made by the French authorities in the restructuring plan, the annual number of round trips of ships on the various sea links to and from Corsica are until 31 December 2006 limited to the thresholds indicated in Table 3 of this Decision, save for exceptional reasons for which SNCM is not responsible that would oblige it to transfer particular round trips to other ports, and save for any change made to the public service obligations incumbent on the company.

Article 6

France is authorised to recapitalise SNCM through a first payment of EUR 66 million from the date on which this Decision is notified.

Until the end of the restructuring period, i.e. until 31 December 2006, the Commission may decide, upon a request from the French authorities, to subsequently authorise a second payment to SNCM which will correspond to the difference between the EUR 10 million remaining and the proceeds from the disposals required in Article 3, in accordance with the conditions laid down in the said Article.

Such a decision can be taken only if the action required in Article 3 has been carried out, the proceeds from the disposals does not exceed EUR 10 million and the conditions laid down in Articles 2, 4 and 5 have been complied with, without prejudice to the Commission’s right to initiate, where appropriate, the formal investigation procedure for failure to comply with any of these conditions. Failing this, the second instalment of aid shall not be paid.

Article 7

Within six months of the date on which this Decision is notified, France shall inform the Commission of the measures taken to comply with it.

…’

Procedure and forms of order sought

35 By application lodged at the Registry of the Court of First Instance on 13 October 2003, the applicant brought the present action.

36 By document lodged at the Registry on 3 February 2004, the French Republic sought leave to intervene in support of the forms of order sought by the Commission.

37 By document lodged at the Registry on 26 February 2004, SNCM sought leave to intervene in support of the forms of order sought by the Commission.

38 By order of 10 March 2004, the French Republic was granted leave to intervene.

39 By order of 30 March 2004, SNCM was granted leave to intervene.

40 Upon hearing the report of the Judge-Rapporteur, the Court (Third Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure, requested the parties to reply to written questions. The parties complied with those requests within the prescribed period.

41 In their replies, the parties informed the Court that, on 8 September 2004, the Commission had adopted Decision C (2004) 3359 final (‘the decision of 8 September 2004’), amending the contested decision. Pursuant to an additional written question from the Court, the main parties were asked to state their views on the effect of that decision on the present action.

42 The parties presented oral argument and replied to the questions put by the Court at the hearing on 18 November 2004. 11

43 The applicant claims that the Court should:

– annul the contested decision;

– order the Commission to pay the costs.

44 The Commission, supported by the French Republic and SNCM, contends that the Court should:

– dismiss the action;

– order the applicant to pay the costs.

Law

45 The applicant puts forward two pleas in law in support of the present action for annulment. The first plea is based on infringement of Article 253 EC inasmuch as the decision is inadequately reasoned. The second plea is based on infringement of Article 87(3)(c) EC, of Regulation No 659/1999 and of the guidelines inasmuch as the contested decision contains errors of fact and manifest errors of assessment.

46 At the outset, however, it is necessary to consider any effect that the decision of 8 September 2004 may have on the present action.

1. Preliminary observation regarding the effect of the decision of 8 September 2004 on the present action

47 In the decision of 8 September 2004, the Commission amended the contested decision in order, as is shown by the second recital in the new decision, to allow SNCM to replace the Asco by the Aliso in the list of vessels set out in Article 2 of the contested decision, that is to say in the list of ships which SNCM is authorised to use during the restructuring period and, in the light of the difficulties encountered in selling the Asco, to dispose either of that ship or the Aliso.

48 It must however be noted that it is settled case-law that in the context of an application for annulment under Article 230 EC the legality of a Community measure must be assessed on the basis of the facts and the law as they stood at the time when the measure was adopted (Joined Cases T-371/94 and T-394/94 British Airways and Others v Commission [1998] ECR II-2405, paragraph 81).

49 Furthermore, it does not appear in the present case that the decision of 8 September 2004 led to some of the pleas and arguments put forward by the applicant in support of the present action becoming irrelevant. Nor, when the matter was raised in a written question from the Court, did either the applicant or the Commission suggest that such was the result.

50 In those circumstances, the decision of 8 September 2004 does not affect the present action for annulment of the contested decision in any way.

2. The first plea, based on infringement of Article 253 EC inasmuch as the contested decision is inadequately reasoned

51 By this plea, the applicant submits that the contested decision is inadequately reasoned as regards the nature of the aid measure at issue and the question whether part of the aid represents public service compensation, the setting-aside of the concerns which led to the initiation of the formal investigation procedure, the assessment of the restoration of viability, the realism of the assumptions made as to restructuring and the determination of non-strategic holdings.

Preliminary observations on the scope of the plea

52 It must be noted that case-law provides that a plea based on infringement of Article 253 EC is a separate plea from one based on a manifest error of assessment. While the former, which alleges absence of reasons or inadequacy of the reasons stated, goes to an issue of infringement of essential procedural requirements within the meaning of Article 230 EC and, involving a matter of public policy, must be raised by the Community judicature of its own motion, the latter, which goes to the substantive legality of a decision, is concerned with the infringement of a rule of law relating to the application of the Treaty, again within the meaning of Article 230 EC, and can be examined by the Community judicature only if it is raised by the applicant. The obligation to state reasons is thus a separate question from that of the merits of those reasons (Case C-367/95 P Commission v Sytraval and Brink’s France [1998] ECR I-1719, paragraph 67; Case C-17/99 France v Commission [2001] ECR I-2481, paragraph 35; Case C‑159/01 Netherlands v Commission [2004] ECR I-4461, paragraph 65; and Case T-158/99 Thermenhotel Stoiser Franz and Others v Commission [2004] ECR II‑1, paragraph 97).

53 In the present case, the applicant, by its first plea, limits itself to arguing that the contested decision is, in some respects, inadequately reasoned and thus contrary to Article 253 EC, as is explicitly shown by the heading to that plea in the application (‘Infringement of essential procedural requirements: insufficient statement of reasons’) and the reasoning set out under it, in particular in paragraphs 17, 18 and 43 of the application – which refer respectively to the infringement of essential procedural requirements, the case-law relating to Article 253 EC and the need to annul the contested decision having regard to its ‘formal legality’ – as well as by the third and fourth paragraphs of the summary of the application produced by the applicant – which refer to the existence of ‘an insufficient statement of reasons’.

54 The scope thereby conferred on that plea is not disputed by the parties. In reply to the observations of the Commission and the French Republic in that regard, the applicant observes, as is stated in paragraph 3 of the reply, that by that plea it criticises the Commission’s statement of reasons as being ‘insufficient’ and that the Commission has ‘failed’ to state adequate reasons.

55 Moreover, the application shows that the applicant is fully aware of the distinction between the obligation to state reasons and a manifest error of assessment since, having contested the adequacy of the reasons set out in the contested decision in the first plea, it argues in its second plea (headed ‘Infringement of the EC Treaty and the implementing rules: material errors of fact and manifest errors of assessment’), based on infringement of Article 87(3) EC and the guidelines, that the contested decision contains manifest errors of assessment. The same distinction appears in the summary of the application, in which the applicant states in paragraph 3 that ‘the application seeks the annulment of the contested decision on the ground that it is vitiated both by an insufficient statement of reasons and by material and manifest errors of assessment’. Similarly, in its reply, having acknowledged the observations made by the Commission and the French Republic on this point, the applicant states once again that it alleges, first, failures to comply with the obligation to state reasons and, secondly, manifest errors of assessment.

56 In those circumstances, the first plea put forward by the applicant in support of the present action must be understood as being based exclusively on an infringement of Article 253 EC inasmuch as the contested decision is inadequately reasoned in a number of areas, since the objections put forward by the applicant in order to contest the merits of the contested decision are set out under the second plea.

57 Plainly, however, as the Commission, supported by the French Republic, rightly points out, several of the objections and arguments put forward by the applicant under the first plea do not seek to establish that the contested decision is inadequately reasoned, but that it contains errors. Under the cloak of challenging the reasons given in the contested decision, the applicant is truly thereby challenging the merits of it.

58 As the Court of Justice has already held, it would be inappropriate for the Court of First Instance to examine, in considering fulfilment of the obligation to state reasons, the substantive legality of the reasons relied on by the Commission to justify its decision (France v Commission, cited in paragraph 52 above, paragraph 38).

59 It follows that, in a plea based on a failure to state reasons or a lack of adequate reasons, objections and arguments which aim to challenge the merits of the contested decision are misplaced and irrelevant (see, to that effect, Thermenhotel Stoiser Franz and Others v Commission, cited in paragraph 52 above, paragraph 97; Joined Cases T-305/94 to T-307/94, T-313/94 to T-315/94, T-316/94, T‑318/94, T-325/94, T-328/94, T-329/94 and T-335/94 Limburgse Vinyl Maatschappij and Others v Commission [1999] ECR II-931, paragraph 389; Case T-86/95 Compagnie générale maritime and Others v Commission [2002] ECR II-1011, paragraph 425; and Joined Cases T‑191/98 and T-212/98 to T-214/98 Atlantic Container Line and Others v Commission [2003] ECR II-3275, paragraphs 1175 and 1176).

60 Furthermore, since the applicant has expressly confirmed that the first plea was based exclusively on an insufficient statement of reasons and it is clear from the manner in which the application is set out that the applicant is aware of the distinction between an insufficient statement of reasons and the presence of errors in the reasons, it is not for the Court to reclassify the objections put forward under this plea which truly seek to challenge the merits of the contested decision. That is all the more the case where, as in these proceedings, the applicant puts forward a second plea based on the existence of manifest errors of assessment, under which some of those objections are restated for the purposes of challenging the merits of the contested decision.

61 Accordingly, it is appropriate to consider under this plea only whether the contested decision is adequately reasoned. The applicant’s objections and arguments set out under this plea which truly seek to challenge the merits of the decision must be rejected as being irrelevant.

The objections relating to the statement of reasons for the contested decision

Preliminary observations

62 According to settled case-law, the scope of the duty to state reasons depends on the nature of the measure in question and on the context in which it was adopted. The statement of reasons must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure, so as to enable the persons concerned to ascertain the reasons for it so that they can defend their rights and ascertain whether or not the measure is well founded and to enable the Community judicature to exercise its power of review (Commission v Sytraval and Brink’s France, cited in paragraph 52 above, paragraph 63; Joined Cases

T-228/99 and T-233/99 Westdeutsche Landesbank Girozentrale v Commission [2003] ECR II-435, paragraph 278; and Case T-109/01 Fleuren Compost v Commission [2004] ECR II-127, paragraph 119).

63 It is not necessary for the statement of reasons to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (France v Commission, cited in paragraph 52 above, paragraph 36; Joined Cases T‑298/97, T-312/97, T-313/97, T-315/97, T-600/97 to T-607/97, T‑1/98, T-3/98 to T-6/98 and T-23/98 Alzetta and Others v Commission [2000] ECR II-2319, paragraph 175; and Westdeutsche Landesbank Girozentrale v Commission, cited in paragraph 62 above, paragraph 279).

64 In particular, the Commission is not obliged to adopt a position on all the arguments relied on by the parties concerned and it is sufficient if it sets out the facts and the legal considerations having decisive importance in the context of the decision (Case T-459/93 Siemens v Commission [1995] ECR II-1675, paragraph 31, and Westdeutsche Landesbank Girozentrale v Commission, cited in paragraph 62 above, paragraph 280). Thus, the Court of Justice has already held that the Commission was not required to define its position on matters which were manifestly irrelevant or insignificant or plainly of secondary importance (Commission v Sytraval and Brink’s France, cited in paragraph 52 above, paragraph 64).

65 With regard to the characterisation of a measure as aid, the obligation to state reasons requires that the reasons which led the Commission to consider that the measure concerned falls within the scope of Article 87(1) EC should be stated (Westdeutsche Landesbank Girozentrale v Commission, cited in paragraph 62 above, paragraph 281).

66 As regards the compatibility of State aid for restructuring with Article 87(3)(c) EC, it is clear from case-law that the obligation to state reasons is complied with when the Commission’s decision states the reasons why it considers the aid to be justified having regard to the conditions laid down in the guidelines, in particular the existence of a restructuring plan, satisfactory evidence as to the long-term viability and the proportionality of the aid taking into account the contribution of the beneficiary of it (see, to that effect, France v Commission, cited in paragraph 52 above, paragraph 37, and Case T‑214/95 Vlaamse Gewest v Commission [1998] ECR II-717, paragraph 102; see, as regards other Community guidelines relating to State aid, Fleuren Compost v Commission, cited in paragraph 62 above, paragraph 125).

67 It is in the light of those principles that it should be considered whether the contested decision is adequately reasoned in the present case.

The nature of the measure in question and the status of public service compensation of a part of the aid

68 The applicant argues that the contested decision is inadequately reasoned with respect to the determination of the amount of the undercompensation for the performance of public service obligations. It states that the Commission has not provided it with details of the expert report used for that purpose, that the contested decision fails to explain why the grant in respect of the depreciation of the Liamone is taken into account, although that vessel was not required for the operation of the public service concession, and that it cannot be determined from the decision which part of the total amount of the aid actually represented public service compensation.

69 It should be noted at the outset that the Commission took the view in recital 259 in the contested decision that, independently of the need to analyse the cash injection in the form of restructuring aid, the part of the aid corresponding to undercompensation for the performance of public service obligations for the period from 1991 to 2001 was compatible with the common market under Article 86(2) EC.

70 It is apparent that, in order to determine the amount of the undercompensation for the performance of public service obligations, the Commission calculated, in recitals 256 and 257 in the contested decision, the amount of the losses incurred by SNCM between 1991 and 2001 on all services to Corsica that were subject to a public service obligation. It explains in that regard that, for the period from 1991 to 1999, it took as a basis the result before tax for services to Corsica, as determined in the expert report used for the purposes of Decision 2002/149, under deduction of the appreciation on disposal of vessels, while for the period between 2000 and 2001, which is not covered by the report, it recalculated itself the result before tax for Corsica services, on the basis of the approach used in Decision 2002/149, and deducted provisions for restructuring already included in the restructuring costs notified, there having been no disposal of vessels during the two years in question. As regards the possible deficit in 2002 on services between Marseilles and Corsica, the Commission states that that deficit could not be recognised ‘as since 1 January 2002 the operating fares for services to Corsica from Marseilles and the amounts of financial compensation have been agreed between the public authorities and SNCM on a contractual basis, contrary to the practice followed for the 1991 and 1996 agreements’.

71 On that basis, the Commission concludes, in recital 258 in the contested decision, that the aggregated corrected results of appreciations on vessels sold in that period and restructuring costs is EUR 53.48 million for the whole of the period from 1991 to 2001. A summary of the Commission’s calculations is set out in Table 11 in recital 257 in the contested decision.

72 However, in recital 260 in the contested decision, the Commission took the view that, as the French authorities had notified aid of a higher amount, namely EUR 76 million, as restructuring aid, and as the procedure under Article 88(2) EC had been initiated for that reason, the aid in question ought to be investigated in its entirety as restructuring aid. That investigation forms the subject‑matter of recitals 261 to 367 in the contested decision.

73 In those circumstances, the applicant’s objection that the contested decision is inadequately reasoned as regards compliance with the conditions laid down under Article 86(2) EC must be rejected as being misplaced. In so far as the Commission took the view that it was appropriate to consider the whole of the aid of EUR 76 million, including the element corresponding to the undercompensation for the performance of public service obligations amounting to EUR 53.48 million, as restructuring aid under that part of its investigation which forms the subject-matter of recitals 261 to 367 in the contested decision, a failure to state adequate reasons as to the compatibility of the amount of the undercompensation with Article 86(2) EC will not, of itself, result in the annulment of the contested decision, as the reasoning underlying it is set out in the recitals relating to the assessment of the aid as restructuring aid.

74 By contrast, it is necessary to consider the applicant’s objection relating to the inadequacy of the reasons set out in the contested decision regarding the determination of the amount of the undercompensation for the performance of public service obligations. In recital 327 in the contested decision, the Commission held, in assessing whether the aid was limited to the minimum for the purposes of the guidelines, that the part of the aid corresponding to the undercompensation was necessary for SNCM’s restructuring. To that extent, any inadequacy in the statement of reasons in relation to the determination of the amount of the undercompensation for the performance of public service obligations could affect the assessment of the aid as restructuring aid.

75 In that regard, it is clear, however, that the reasons set out in recitals 256 to 260 in the contested decision, which disclose both the criteria taken into account by the Commission in determining the amount of the undercompensation for the performance of public service obligations and the method of calculation used for that purpose, enable the persons concerned to be aware of the justifications for the measure taken, so that they can defend their rights and ascertain whether or not the measure is well founded and so as to enable the Community judicature to exercise its power of review.

76 None of the arguments and objections put forward by the applicant affects that conclusion.

77 As regards, first, the failure of the Commission to make the expert report available to the applicant, the Court finds that that complaint is irrelevant for the purposes of establishing whether there has been an infringement of the obligation to state reasons. Even assuming it to be proved, such a failure does not constitute in any way an absence of reasons in the contested decision or mean that the reasoning stated in the contested decision is inadequate. At its highest, that complaint would allow the applicant to invoke a possible breach of its right of access to the file, which would not go to the statement of reasons but to respect for the rights of the defence. However, it must be stated, and the point is not disputed, that the applicant does not invoke such a breach of its rights of defence. Such a plea does not concern an infringement of essential procedural requirements and cannot be raised by the Court of its own motion (see Joined Cases T‑67/00, T‑68/00, T‑71/00 and T‑78/00 JFE Engineering and Others v Commission [2004] ECR II‑2501, paragraph 425, and the case-law cited there).

78 In so far as the applicant argues by that complaint that it was not in a position to understand the reasoning which led the Commission to determine the amount of the undercompensation for the performance of public service obligations, it suffices to hold that the Commission’s reasoning in that regard is, as mentioned above, set out clearly and explicitly in recitals 256 to 258 in the contested decision.

79 With respect to the contention that the Commission was not entitled to rely on the report in question for the years 2000 and 2001 and that the provisional accounts used by the Commission for those years differ from the published final accounts, those are matters which relate to the validity of the Commission’s methodology and are, accordingly, irrelevant to the present plea based on a failure to state adequate reasons.

80 As regards, secondly, the purported absence of reasoning in relation to the taking into account of the grant for the depreciation of the Liamone when that ship was not required for the operation of the public service concession, it must be held that that contention is based on an incorrect reading of the contested decision. It is clear from Table 11 in recital 257 in the contested decision that, contrary to what the applicant maintains, the Commission did not take that grant into account for the purposes of determining the amount of the undercompensation for the performance of public service obligations. The sum of EUR 14.771 million which that depreciation represents is deducted from the deficit relating to the public service activities and not added to those activities. Moreover, when questioned at the hearing by the Court, the applicant expressly acknowledged that its reading of the contested decision on that point was incorrect. Plainly, the Commission cannot be criticised for failing to substantiate reasoning which does not appear in its decision.

81 As the Commission explains in its written pleadings, the amount of the depreciation of the Liamone is, by contrast, taken into account in the costs of the restructuring plan which form the subject-matter of the investigation carried out in recitals 261 to 367, the exceptional depreciation of that vessel being recorded in that plan, as is clear from, in particular, recitals 126, 144, 302 and 330 in the contested decision.

82 In its reply and at the hearing, the applicant stated that the objection in question was in fact intended to show that it is illogical for the Commission to take the view that the Liamone was necessary for the performance of the public service obligations prior to 2002, when it acknowledges having excluded the grants for the depreciation of that ship from the calculation of the additional costs linked to public service obligations in respect of which no compensation was paid. As, in the applicant’s view, the Liamone was not required for the carrying-out of public service obligations, it considers that the Commission wrongly took the depreciation of that vessel into account as part of the costs of the restructuring plan.

83 However, it is clear that those contentions, which amend the scope of the objection as originally set out in the application, seek to challenge the merits of the assessments made in the contested decision and, accordingly, that they must be rejected as being irrelevant as regards the plea under consideration.

84 As regards, thirdly, the purported impossibility of determining the proportion of the total amount of the aid which truly represented compensation for the performance of public service obligations, it is sufficient to find that, contrary to what the applicant maintains, the Commission expressly states at recital 258 and in Table 11 in recital 257 in the contested decision that that proportion is EUR 53.48 million, and does so after having set out the calculation which produced that amount in recitals 256 and 257 in the decision.

85 Inasmuch as the applicant objects in that regard that the Commission did not state reasons to the ‘necessary level’ for the compensation for the performance of public service obligations and did not investigate the possibility that the additional costs linked to the public service obligations might be excessive, particularly the reason why 50% of SNCM’s losses were incurred in 2000 and 2001, it must be held that the applicant seeks by that objection to challenge the calculation of the undercompensation carried out by the Commission, inasmuch as that calculation takes the amount of the losses incurred by SNCM as a basis. Such an objection, which seeks to challenge the merits of the contested decision in that respect, is irrelevant to the present plea.

86 Moreover, inasmuch as that objection can be understood as criticising the Commission for having failed to state adequate reasons in the contested decision in that regard, it must be observed that the applicant did not raise such an objection during the administrative procedure, either in its observations on the decision to initiate the formal procedure or at the meeting of 4 February 2003, so that the Commission cannot be criticised for failing to reply to it in its decision.

87 In any event, it is clear that the contested decision states to the requisite legal standard both the reasons why the Commission takes the view that the losses incurred by SNCM allow the amount of the undercompensation for the performance of public service obligations to be determined and the reasons why those losses should have arisen.

88 As regards the reasons why the losses incurred by SNCM allow the amount of the undercompensation for the performance of public service obligations to be determined, it must be pointed out that in recital 257 in the contested decision the Commission stated that, in order to establish that amount, it was ‘following the same approach and criteria as Decision 2002/149/EC’, which was adopted following a procedure in which the applicant participated as an interested party and which related to aid granted to the same company under agreements relating to the same public service obligations, and to the same period, as the 1996 agreement applied until 2001.

89 In those circumstances, having regard to the express reference in the contested decision to Decision 2002/149 and taking account of the fact that the last-mentioned decision relates to matters well known to the applicant, it must be accepted that Decision 2002/149 is capable of supplementing the statement of reasons in the contested decision as regards the determination of the undercompensation for the performance of public service obligations (see, to that effect, Case C‑42/01 Portugal v Commission [2004] ECR I‑6079, paragraphs 69 and 70, and Case T-213/00 CMA CGM and Others v Commission [2003] ECR II‑913, paragraph 217).

90 In recitals 87 to 105 in Decision 2002/149, the Commission stated, on the basis of its expert’s conclusions relating to the period from 1991 to 1999, that the amount of the losses determined by the expert reasonably reflected the cost of the public service obligations. In the light of those losses and notwithstanding the payment of compensation under the 1991 agreement and the 1996 agreement, the Commission held in that decision that there was no overcompensation.

91 As regards the reasons for SNCM’s losses, it must be observed that both in the contested decision (recitals 281, 282 and 326) and in Decision 2002/149 (recital 123), to which recital 257 in the contested decision refers, the Commission stated that the financial compensation provided for under the 1991 agreement and the 1996 agreement was insufficient to cover the whole of the cost of the public service obligations because, in particular, it was relatively independent of revenue. In addition, in recital 282 in the contested decision, the Commission stated that the applicant’s arrival on the market in 1996 had negative effects on SNCM’s results.

92 It follows that the applicant’s objections regarding the reasons given in the contested decision relating to the undercompensation for the performance of public service obligations must be rejected in their entirety.

The setting-aside of the concerns which led to the initiation of the formal investigation procedure

93 The applicant considers that the contested decision fails to state to the requisite legal standard the reasons why the Commission set aside the concerns which led to the initiation of the formal investigation procedure as regards the connections between SNCM’s losses and its public service obligations, the effect of SNCM’s ship purchasing policy on its accounting results, the measures proposed in order to increase SNCM’s productivity and the measures to reduce intermediate consumption, as well as SNCM’s future fares policy.

94 In order to consider whether the Commission gave adequate reasons in the contested decision in that regard, it is necessary to determine the scope of the concerns raised by the Commission in the decision to initiate the formal investigation procedure, in order, next, to establish the extent to which the contested decision set out the reasons why those concerns could be set aside.

95 As regards, first, the connections between SNCM’s losses and its public service obligations, it must be held that the Commission raised concerns in the decision to initiate the formal investigation procedure as to SNCM’s restoration of viability, on the ground that the analytical data provided in the restructuring plan did not allow the structural causes of SNCM’s chronic losses over recent years to be determined. The Commission considered that it had to establish that the restructuring aid would not serve to offset past operating losses and that the restructuring plan under which the aid was to be made available would put the undertaking on a footing which would enable it to make an operating profit in future. In that regard, the Commission noted in the decision to initiate the formal investigation procedure, first, that the restructuring plan did not show how SNCM was to reduce its losses on routes which had formerly been subject to public service obligations and, secondly, that the plan had to be able to guarantee the viability of the company even if SNCM were not to be awarded the public service obligations contract for services between Marseilles and Corsica after 2006.

96 It follows that there are two separate aspects to the concerns raised by the Commission regarding the connections between SNCM’s losses and the public service obligations, namely, first, whether the aid for the costs connected with the public service obligations between 1991 and 2001 was set at the proper amount, as that aid was to allow the company to cover past losses arising exclusively from the performance of the public service obligations under the 1991 agreement and the 1996 agreement and, secondly, the contribution which the aid would make to the restoration of viability for the period between 2002 and 2006, as that aid was to allow the company to reduce its future losses on routes which are not, or are no longer going to be, subject to public service obligations.

97 As regards, first, the question whether the aid in relation to the costs connected with the public service obligations between 1991 and 2001 was set at the proper amount, it is sufficient to note that it has already been held above that the reason why the losses incurred by SNCM in the past on services to Corsica, which were at the time all subject to public service obligations, could be regarded as corresponding to the additional costs borne by SNCM in order to perform those obligations was set out to the requisite legal standard both in the contested decision, in particular in recitals 256, 257, 281 and 282, and in Decision 2002/149, to which it refers.

98 It must be held in that regard that the applicant’s objections regarding the reasoning set out in recitals 281 and 282 in the contested decision, by which it contends that the 2002 agreement is not designed to offset losses and that the arrival of a competitor in 1996 was the result of Community liberalisation, in reality concern the merits of the Commission’s findings and not the reasoning underlying them. Those objections must accordingly be rejected as being irrelevant.

99 Furthermore, as regards any losses that may have been incurred in the carrying-out of public service obligations under the 2002 agreement, the contested decision gives adequate reasons in recital 256 in the decision, where the Commission states that those losses cannot be recognised as the compensation was agreed on a contractual basis.

100 As regards, secondly, the contribution of the aid to the restoration of viability for the period from 2002 to 2006, it must first of all be held that in recitals 263 to 282 in the contested decision, contrary to what the applicant contends, the Commission analysed the causes which led to SNCM’s difficulties and put a figure on the costs arising from them. In particular, in recitals 270 to 273, the Commission considered, in that context, the rationality of SNCM’s purchasing policy for new ships. Next, in recitals 299 to 303, the Commission set out the reasons why the restructuring plan ought to allow for a restoration of SNCM’s viability both prior to 2006 and after that date. It must be noted in that regard that in recitals 142 to 152 in the contested decision the Commission set out in detail the anticipated financial results under the ‘intermediate scenario’ adopted both for the period between 2002 and 2006 and for the period after 2006. In addition, in recital 315 in the contested decision, the Commission noted that SNCM’s plans for recovery included the sale of four ships. Furthermore, in recitals 111 and 113 in the contested decision, the Commission, contrary to what the applicant maintains, noted and described the additional undertakings proposed by the French authorities following the decision to initiate the formal investigation procedure in order to reduce staff costs and the purchase cost of intermediate consumption. In recital 114 in the contested decision, the Commission held that those undertakings, combined with fleet reduction, had led to a reduction of maintenance expenditure from EUR 29.6 million to EUR 23 million between 2001 and 2002.

101 It is clear that, in those recitals, taken as a whole, the Commission set out to the requisite legal standard the reasons why SNCM will be in a position under the restructuring plan to reduce its future losses on those routes that are not, or will no longer be, subject to public service obligations.

102 None of the arguments put forward by the applicant is capable of affecting that conclusion.

103 With respect, first of all, to the objections based on a purported lack of consistency in the reasons for the contested decision where it holds that the proposed savings on intermediate purchases are inadequate (recital 279) and that the accounts for 2002 are not positive, contrary to the forecasts made in the restructuring plan (recital 280), it is clear that those objections relate to the merits of the contested decision in relation to those points and not its reasoning, and they must accordingly be rejected as being irrelevant.

104 As regards, next, the contention that recitals 258 to 260 in the contested decision do not specify the reasons why the aid must be assessed under the guidelines, it suffices to hold that that contention is incorrect, since the contested decision states in recital 260 that the aid was notified as restructuring aid and that its amount exceeds that of the undercompensation for the performance of public service obligations, and next, in recital 326, that the restructuring aid may cover both the costs of the different actions provided for in the restructuring plan and the losses incurred by the company in carrying out its public service agreements until the end of 2001.

105 As regards, lastly, the contentions based on the judgment of the Court of Justice in Case C-280/00 Altmark Trans and Regierungspräsidium Magdeburg [2003] ECR I-7747, it must be observed that, as that judgment was delivered after the contested decision, the Commission was clearly under no duty to set out the reasons why the conditions laid down in that judgment were satisfied in the present case, a point which is, moreover, accepted by the applicant.

106 With respect, in the second place, to the effect of SNCM’s ship purchasing policy on its accounting results, it suffices to hold that the applicant’s objection, by which it calls into question the finding in recital 271 in the contested decision that SNCM has not excessively invested in fleet renewal in recent years, seeks to challenge the merits of the Commission’s appraisal of that matter and the methodology adopted for that purpose, by criticising it, in particular, for failing to take account of a number of factors which the applicant considers to be relevant and for having restricted itself to a purely balance-sheet-related analysis. Such an objection is irrelevant in the context of the present plea.

107 In any event, it must be held, as has already been stated above, that recitals 269 to 273 in the contested decision set out to the requisite legal standard the reasons why SNCM’s ship purchasing policy did not lead to overinvestment.

108 With respect, in the third place, to the measures proposed in order to increase SNCM’s productivity and the absence of concrete measures to reduce the amount of intermediate consumption, it must again be held that, by its objections in that regard, the applicant is challenging the merits of the Commission’s appraisal. Those objections seek to deny that the concerns in this area could be set aside, since the Commission holds in recitals 279 and 280 in the contested decision that the plan entitled ‘achetons mieux’ (‘buy better’) is not sufficient and that the results for 2002 are not positive. Such objections are irrelevant in the context of the present plea.

109 In any event, it must be noted that it has already been observed above that the contested decision was adequately reasoned in that regard by recitals 113, 114 and 279.

110 With respect lastly, and in the fourth place, to SNCM’s future fares policy, it is once again clear that the applicant is truly challenging the merits of the Commission’s appraisal. The applicant is essentially arguing that the Commission’s appraisal of SNCM’s fares policy prior to the adoption of the contested decision was incorrect and that it did not have the material available to it to make an appraisal of that policy in 2003. Those objections are irrelevant in the context of the present plea and must accordingly be rejected.

111 Furthermore, inasmuch as the applicant’s objections are to be understood as criticising the Commission for failing to provide a specific response in the contested decision to the applicant’s contentions regarding SNCM’s ticket prices prior to the adoption of the decision, it must be observed that the Commission expressly states in recital 359 that the arguments put forward by the French Republic in that regard, which are set out in recitals 119 to 123 and 191 to 203, enable those contentions to be rejected.

112 It follows from the above that the applicant’s objections and arguments relating to the reasoning underlying the setting-aside of the concerns which gave rise to the initiation of the formal investigation procedure must be rejected in their entirety.

The assessment of restoration of viability

113 The applicant is of the view that the contested decision is inadequately reasoned as regards restoration of viability, inasmuch as the Commission does not state the reasons why it agreed to take account, as a derogation from the principle laid down in the guidelines, of external factors, namely the expansion of the Maghreb market, anticipated developments in services to and from Nice and the possibility that the 2002 agreement would not be renewed after 2006.

114 It must be noted in that regard that point 32 of the guidelines states that ‘the improvement in viability must derive mainly from internal measures contained in the restructuring plan and may be based on external factors such as variations in prices and demand over which the company has no great influence if the market assumptions made are generally acknowledged’.

115 In the present case, as regards, in the first place, the expansion of the market to the Maghreb, the Commission states in recital 300 in the contested decision that the effect of the restructuring measures is not dependent on market trends ‘except for the increase of services to the Maghreb which corresponds in particular to a return to the position which SNCM had in the mid-1990s’. In recitals 66 to 81 in the contested decision, the Commission held, on the basis of the market survey provided for the purposes of the restructuring plan, that that market was likely to expand considerably. In the light of point 32 of the guidelines, the applicant was thus fully able to understand the reason underlying the Commission’s conclusion set out in recital 300 in the contested decision.

116 Furthermore, the same findings regarding the expansion of the market to the Maghreb were also referred to explicitly in the decision to initiate the formal investigation procedure. Although the applicant argued in its written observations of 8 January 2003 regarding the initiation of that procedure that SNCM’s market share objectives were ambitious having regard to the strong competition offered by the national companies and stated that SNCM’s commercial reputation in North Africa was a negative one, at no stage did it challenge the assumption adopted in the market survey that there would be a considerable increase in the market. Apart from the fact that that conduct confirms the fact that the assumption of an increase in that market was generally acknowledged for the purposes of the guidelines, it also explains why the Commission did not provide more specific reasons for that aspect of the contested decision in the absence of any objection on the applicant’s part.

117 With respect, in the second place, to the continuation of services between Nice and Corsica, the applicant’s objection is based on an incorrect reading of the contested decision. Contrary to what the applicant maintains, the Commission does not accept in the contested decision that those services should be maintained on the ground that the market is expanding, but for the reasons set out in recital 302, namely that the importance of those services is diminishing and that the early depreciation of the Liamone will facilitate a return to positive results. It must also be observed that, in recital 283 in the contested decision, the Commission referred in that context to its concern to avoid the emergence of a de facto monopoly of the applicant on services to Corsica. While it is true that, in recital 316 in the contested decision, which the applicant does not refer to, the Commission refers to the strong growth in the market throughout the Gulf of Genoa and Toulon, it does not, however, do so in order to supply an external justification for SNCM maintaining its position in Nice, but, on the contrary, to emphasise the importance of the compensatory measures in favour of competitors, including, in particular, the virtual withdrawal from Toulon and the limitation on round trips on services to Nice. Plainly, the Commission could be under no duty to provide reasons in its decision for a position which it does not adopt.

118 As regards the alleged absence of reasons for the failure to take account of options other than retaining or withdrawing services between Nice and Corsica, it is clear from the applicant’s observations of 8 January 2003 on the initiation of the formal procedure that, contrary to what it contends in its reply, it did not put forward any other option, but merely claimed, in essence, that SNCM was not capable of becoming profitable on that route. In those circumstances, the Commission did not have to provide reasons in the contested decision concerning the failure to take account of other options.

119 With respect, in the third place, to the possibility that the 2002 agreement might not be renewed after 2006, it is sufficient to hold that the contested decision is adequately reasoned in that regard in recital 303, as the Commission states there that, with regard to long-term viability, ‘implementation of the plan should make it possible for the company to face competition effectively when contracts are renewed’. Furthermore, the contested decision states in recital 149 that ‘it is important to know what will be the company’s competitive position in 2006 at the end of the current public service delegation contract and how viable the company will be’, a point which is considered again in recital 310.

120 Inasmuch as the applicant argues that it is inconsistent to treat the possibility of a non-renewal of the agreement as premature, while at the same time assessing long-term viability, it is sufficient to hold that that objection, which relates to the merits of the contested decision, is irrelevant in the context of the present plea.

121 It follows from the above that the objections and arguments of the applicant as to the reasons relating to restoration of viability must be rejected in their entirety.

Whether the assumptions underlying the restructuring are realistic

122 As regards the question whether the assumptions underlying the restructuring are realistic, the applicant argues that Commission merely restated the guidelines and indicated, in recital 306 in the contested decision, that the market survey submitted by the French authorities provided a ‘sound basis for scenarios of company development’.

123 It is none the less clear from recitals 139 to 141 in the contested decision that the Commission stated reasons in that decision why the three scenarios relating to financial trends, namely the best-case and worst-case scenarios considered in the market survey and the intermediate scenario adopted in the restructuring plan, which point 33 of the guidelines requires, were a ‘sound basis’ for assessing the company’s development. The Commission states its reasons in relation to the best‑case and worst-case scenarios in recital 139, before concluding that those assumptions ‘on the whole seem to present a situation that is quite representative of possible developments’. In recital 140, the Commission adds that the results under the worst-case scenario could be improved by a fine-tuning by SNCM of its supply to demand according to the time of year. Furthermore, in recital 141 in the contested decision, having compared the trend of the main financial indicators under the three possible scenarios in Table 6, the Commission held that ‘these simulations show[ed] that SNCM should become profitable again in each of the three scenarios’.

124 As to the remainder, the applicant’s objections are indissociable from those relating to restoration of viability. Under point 32 of the guidelines, the requirement that the restructuring plan be based on realistic assumptions relative to future operating conditions exists in order to determine whether the plan allows for a restoration of viability.

125 It is clear from recitals 142 to 148 in the contested decision that the trends envisaged in the intermediate scenario adopted for the purposes of assessing a restoration of viability were determined after an arithmetical analysis of the following points: the redeployment of services to the Maghreb, services between Nice and Corsica, services between Marseilles and Corsica and SNCM’s indebtedness. In addition, it is clear from recitals 149 to 152 that the market survey also took into account the possibility that the public service agreement might not be renewed after 2006. It is also clear that each of those points is addressed specifically in recitals 300 to 304 and, as consideration of the objections relating to restoration of viability has already shown, those recitals contain a sufficient statement of the reasons why the Commission considers that the restructuring plan is capable of procuring a restoration of viability, even if SNCM were not to be carrying out its public service obligations.

126 With respect to the argument based on the increase in the capacity of the fleet in 2004 following the acquisition of a new ship by the applicant, it must be noted that the Commission is not obliged to reply to all the arguments of fact and of law put forward during the administrative procedure. Furthermore, contrary to what the applicant maintains, neither the written observations of 8 January 2003 nor recitals 169 to 174 in the contested decision, which summarise, without challenge by the applicant, the arguments submitted by it at the meeting of 4 February 2003, show that the applicant particularly drew the Commission’s attention to that point.

127 As regards the fact that the Commission has adjudicated in other decisions on the validity of aid to shipping companies after a detailed analysis of the financial trends of the company which is the beneficiary of the restructuring plan, not only having regard to its cash flow, but also to its ability to earn profits and its ability to procure financing (for example, Commission Decision 2002/15/EC of 8 May 2001 concerning State aid implemented by France in favour of the ‘Bretagne Angleterre Irlande’ company (‘BAI’ or ‘Brittany Ferries’) (OJ 2002 L 12, p. 33)), it is sufficient to hold that the extent of the reasoning set out in that decision, to which the contested decision does not refer in support of its own reasoning, does not show in any way that, were it to have been adopted in the same field, the contested decision is inadequately reasoned and, in any event, does not affect the preceding conclusion that recitals 300 to 304 in the contested decision are adequately reasoned as regards the question of restoration of viability.

128 Lastly, inasmuch as the applicant criticises the Commission for having taken account only of the arithmetical assumptions put forward by the French authorities in support of its conclusions regarding restoration of viability, which are, moreover, now shown to be factually incorrect, an objection of that kind, which seeks to challenge the merits of the Commission’s appraisal of the matter, is irrelevant in the context of the present plea. That applies in particular to the argument based on the alleged failure to investigate the cash flow of the beneficiary of the aid and the failure to take account of the increase in the capacity of the fleet as a result of the applicant’s acquisition of a new ship.

129 It follows from the above that the applicant’s objections and arguments regarding the reasoning in relation to whether the assumptions underlying the restructuring are realistic must be rejected in their entirety.

Determination of non-strategic shareholdings

130 The applicant considers that the contested decision is inadequately reasoned as regards the reason why SNCM’s shareholding in CMN constitutes a strategic shareholding which accordingly does not have to be disposed of.

131 However, it is clear from recitals 348 to 354 in the contested decision that the Commission set out in detail in the decision, in reply to the arguments put forward by the applicant and by Stef-TFE during the administrative procedure, the reasons why it considered that that shareholding was essential and did not have to be disposed of. In particular, the Commission noted in that regard in recitals 349 to 351 in the contested decision that the two companies participated in carrying out the public service contract, that they had developed synergies on services to Corsica which went beyond what is required by the 2002 agreement and that the fleets of CMN and SNCM were complementary. Those statements clearly provide adequate reasoning in the contested decision in that regard.

132 While it is true, as regards the claim that there was a failure to take into account the value of SNCM’s shares in CMN, that recital 174 in the contested decision shows that that claim was made at the meeting of 4 February 2003, it must be pointed out that the Commission is not under an obligation to reply to all the arguments of fact and of law put forward during that procedure. It must be held that recitals 348 to 354 in the contested decision provide adequate reasons in relation to the shareholding in CMN. Moreover, it must also be observed that the applicant was in a position to understand the Commission’s reasoning in that regard, as it is clear from recital 256 in the contested decision that the Commission took the view that unrealised appreciation could not be taken into account for the purposes of determining the level of resources available to SNCM.

133 As to the remainder, the arguments put forward by the applicant in order to emphasise the allegedly contradictory nature of the reasoning of the contested decision in relation to that point seek in reality to challenge the merits of the contested decision. Those arguments must accordingly be rejected as irrelevant in the context of the present plea.

134 It follows from the above that the objections and arguments put forward by the applicant regarding the reasoning in relation to the level at which shareholdings are to be determined to be non-strategic must be rejected in their entirety.

Conclusion as regards the first plea in law

135 It follows from all the above points that the first plea in law, based on infringement of Article 253 EC, inasmuch as the contested decision is inadequately reasoned, must be rejected.

3. The second plea, based on infringement of Article 87(3)(c) EC, of Regulation No 659/1999 and of the guidelines inasmuch as the contested decision contains errors of fact and manifest errors of assessment

136 By this plea, the applicant argues that the contested decision contains errors of fact and manifest errors of assessment regarding the assessment of a part of the aid as compensation for the performance of public service obligations, the analysis of the causes leading to SNCM’s financial difficulties, compliance with the guidelines and the need for the conditions imposed by the Commission.

Preliminary observation regarding the review undertaken by the Court

137 It is settled case-law that, in the application of Article 87(3)(c) EC, the Commission has a wide discretion, the exercise of which involves complex economic and social assessments which must be made in a Community context (Case 310/85 Deufil v Commission [1987] ECR 901, paragraph 18, and Case C‑372/97 Italy v Commission [2004] ECR I‑3679, paragraph 83).

138 Judicial review of the manner in which that discretion is exercised is confined to establishing that the rules of procedure and the rules relating to the duty to give reasons have been complied with and to verifying the accuracy of the facts relied on and that there has been no error of law, manifest error of assessment in regard to the facts or misuse of powers (Case C-409/00 Spain v Commission [2003] ECR I-1487, paragraph 93; Italy v Commission, cited in paragraph 137 above, paragraph 83; Case T-149/95 Ducros v Commission [1997] ECR II‑2031, paragraph 63; Case T-123/97 Salomon v Commission [1999] ECR II-2925, paragraph 47; Case T-110/97 Kneissl Dachstein v Commission [1999] ECR II‑2881, paragraph 46; and Westdeutsche Landesbank Girozentrale v Commission, cited in paragraph 62 above, paragraph 282). In particular, it is not for the Court to substitute its own economic assessment for that of the author of the decision (British Airways and Others v Commission, cited in paragraph 48 above, paragraph 79).

139 Furthermore, case-law provides that the Commission is bound by the guidelines and notices that it issues in the area of supervision of State aid inasmuch as they do not depart from the rules in the Treaty and are accepted by the Member States (Spain v Commission, cited in paragraph 138 above, paragraph 95; Case T‑198/01 Technische Glaswerke Ilmenau v Commission [2004] ECR II-2717, paragraph 149; and Case T-176/01 Ferriere Nord v Commission [2004] ECR II‑3931, paragraph 134).

140 It is clear from case-law that by assessing specific aid in the light of such guidelines, previously adopted by it, the Commission cannot be considered to exceed the limits of its discretion or to waive that discretion. On the one hand, it retains the power to repeal or amend any guidelines if the circumstances so require. On the other, the guidelines concern a defined sector and are based on the desire to follow a policy established by it (Vlaamse Gewest v Commission, cited in paragraph 66 above, paragraph 89).

141 In that context, it is for the Court to verify whether in the present case the requirements which the Commission has itself laid down, as mentioned in those guidelines, have been observed (Case T-35/99 Keller and Keller Meccanica v Commission [2002] ECR II-261, paragraph 77, and Ducros v Commission, cited in paragraph 138 above, paragraphs 61 and 62).

142 Furthermore, it must be pointed out that, in an action for annulment under Article 230 EC, the legality of a Community measure must be assessed on the basis of the elements of fact and of law existing at the time when the measure was adopted. In particular, complex assessments made by the Commission must be examined solely on the basis of the information available to it at the time when those assessments were made (Salomon v Commission, cited in paragraph 138 above, paragraph 48, and Kneissl Dachstein v Commission, cited in paragraph 138 above, paragraph 47).

143 Lastly, the mere assertion that one of the conditions authorising aid is not complied with cannot cast doubt on the legality itself of the decision authorising it. In general, the legality of a Community act cannot depend on the possible existence of opportunities for circumvention or on retrospective considerations of its efficacy (British Airways and Others v Commission, cited in paragraph 48 above, paragraph 291, and Salomon v Commission, cited in paragraph 138 above, paragraph 49).

144 It is in the light of the abovementioned principles that the objections and arguments put forward by the applicant must be considered.

The objections relating to the validity of the contested decision

145 In so far as the present plea is based on infringement of Regulation No 659/1999, it must be rejected at the outset as being irrelevant. That regulation, which lays down the rules of procedure applying to the investigation of State aid, cannot be infringed in any way by the alleged errors of fact and manifest errors of assessment attributed to the Commission, particularly since the contested decision was adopted after the initiation of the formal investigation procedure provided for under Article 88(2) EC. It is also clear that the applicant does not put forward any argument to show that the contested decision infringes Regulation No 659/1999 and fails to identify the provisions of that regulation infringed by the decision.

146 The present plea accordingly falls to be considered only in so far as it alleges infringement of Article 87(3)(c) EC and of the guidelines.

The assessment of part of the aid as public service compensation

147 The applicant argues that the Commission incorrectly assessed the part of the aid representing undercompensation for the performance of public service obligations in that, first, it took into account the depreciation of the Liamone, although that vessel is not used for public service obligations and, secondly, it failed to take into account the potential appreciation of the fleet which is used for such obligations. In addition, the applicant refers to the substantial increase in losses between 2000 and 2001.

148 These objections must be rejected as irrelevant in that they aim to establish that the contested decision incorrectly assessed the compatibility of the aid with Article 86(2) EC, since, in recital 260 in the contested decision, the Commission held that the whole of the aid of EUR 76 million in question, including the part representing undercompensation for the performance of public service obligations, should be investigated as restructuring aid.

149 By contrast, it is appropriate to investigate these objections in so far as they aim to challenge the determination by the Commission of the amount of the undercompensation for the performance of public service obligations.

150 As regards, first, the depreciation of the Liamone, the applicant’s objection is based on an incorrect reading of the contested decision. Contrary to what the applicant submits, in calculating the part of the aid representing undercompensation for the performance of public service obligations, the Commission did not take into account the grant relating to that depreciation, but quite the contrary, as is clear from Table 11 in recital 257 in the contested decision, it subtracted the amount of that grant in its calculations. Moreover, in response to questions put by the Court at the hearing, the applicant expressly acknowledged that its reading of the contested decision on that point was incorrect.

151 It follows from the above that the sum of EUR 53.48 million considered by the Commission to represent the non-compensated costs of the public service obligations undertaken by SNCM on services to Corsica between 1991 and 2001 does not include the depreciation of the Liamone.

152 As regards, secondly, the potential appreciation of the fleet used for public service obligations, the applicant states that the market value of the five ships used for public service obligations on 31 December 2001 is higher, to the extent of EUR 22.2 million, than their net book value. The applicant contends that the losses incurred between 1991 and 2001 on services to Corsica, which, according to the Commission, correspond to the undercompensation for the performance of public service obligations, should accordingly be reduced by the amount of that appreciation.

153 It should first be held in that regard (and the point is not contested) that the alleged latent appreciation was not recorded in SNCM’s accounts for 2000 and 2001, which were certified by auditors. As the Commission argues, without being challenged by the applicant, and as the former confirmed at the hearing, it follows from the application of general accounting principles, in particular the principle of prudence, that a company is not in principle entitled to revalue the amount credited to an asset on its balance sheet on the ground that its market value is higher than its book value. The same principles provide that in the contrary case a company must apply early depreciation where the market value of an asset is lower than its book value.

154 It is true that the applicant contends, in general terms, in the context of other objections, that the provisional accounts held by the Commission at the time when the contested decision was adopted differed from the final accounts approved by the auditors, which became available after the adoption of the contested decision. However, the applicant provides no evidence to support that assertion and at no point does it indicate in what way the provisional accounts differ from the certified final accounts.

155 Next, and most importantly, it must be pointed out that, in recital 272 in the contested decision, the Commission indicated that two of the five ships used for public service obligations before 2002 were mortgaged, while, as regards the three remaining ships, the company had not found any bank prepared to accept them under mortgage guarantee. The Commission held in that respect that ‘the level of the company’s indebtedness and its weak cash flow, detailed below, which only just enables it to service its existing debt, are such that it is unlikely that any bank, acting as a private lender under market conditions, would be inclined to offer SNCM an additional loan. The risk that SNCM would not be able to pay back the instalments of the debt would be significant in view of the sums involved. Similar difficulties make it impossible for SNCM to have recourse to lease-back operations to reduce its indebtedness. The Commission’s experience in effectively seizing ships or aircraft shows that it is difficult to enforce this in practice if such assets are used for services of national or regional interest’. It is clear that, although the applicant challenges those findings, it provides no concrete evidence under the objections concerned that would call them into question.

156 Lastly, inasmuch as the applicant argues that SNCM should have realised the purported gains by way of appreciation in order to produce additional revenue from its own resources and thus to reduce the losses arising from the exercise of public service obligations, that contention must be rejected, as it would require the sale of precisely those ships that are used by SNCM for its public service obligations.

157 In those circumstances, it does not appear that the Commission committed a manifest error of assessment by excluding latent appreciation of the ships used for public service obligations from the calculation of the undercompensation for the performance of public service obligations.

158 Contrary to what the applicant contends, there is no inconsistency with the methodology adopted in Decision 2002/149. As recital 102 in that decision makes clear, the Commission there took account, in order to correct the amount of losses arising from the performance of public service obligations, of the amount of the capital gains actually realised on three ships that were disposed of between 1991 and 1999. By contrast, that decision does not show that the Commission also took into account latent appreciation on other ships which had not actually been disposed of. While it is therefore correct that in Decision 2002/149 the Commission found it necessary to correct SNCM’s accounting results for services to Corsica by allocating a capital gain to it which did not appear in the figures for those services but was included in other figures, the situation in the present case is entirely different, since the applicant criticises the Commission for failing to correct SNCM’s accounts by taking account of appreciation that is not included in the accounts.

159 As for the point which was stressed by the applicant that, conversely, the Commission took account of the depreciation of the Liamone in determining the restructuring costs, it suffices