Société nationale maritime Corse-Méditerranée (SNCM) SA and French Republic v Corsica Ferries France SAS.
Date: 2014-09-04
15. According to that case-law, ‘State aid’, as defined in the Treaty, is a legal concept which must be interpreted on the basis of objective factors. For that reason, the European Union judicature must in principle, having regard both to the specific features of the case before it and to the technical or complex nature of the Commission’s assessments, carry out a comprehensive review as to whether a measure falls within the scope of Article 107(1) TFEU. The European Union judicature must, inter alia, establish not only whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the relevant information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it (see judgments in France  v Ladbroke Racing and Commission , C‑83/98 P, EU:C:2000:248, paragraph 25; Commission  v Scott , C‑290/07 P, EU:C:2010:480, paragraphs 64 and 65; and BNP Paribas and BNL  v Commission , C‑452/10 P, EU:C:2012:366, paragraph 100 and the case-law cited).
30. However, it is also settled case-law that it follows from the principle of equal treatment of public undertakings and private undertakings that capital placed directly or indirectly at the disposal of an undertaking by the State in circumstances which correspond to normal market conditions cannot be regarded as State aid (judgment in Italy and SIM 2 Multimedia  v Commission , EU:C:2003:252, paragraph 37 and the case-law cited). Thus, the conditions which a measure must meet in order to be treated as ‘aid’ for the purposes of Article 107 TFEU are not met if the recipient public undertaking could, in circumstances which correspond to normal market conditions, obtain the same advantage as that which has been made available to it through State resources. In the case of public undertakings, that assessment is made by applying, in principle, the private investor test (see judgment in Commission  v EDF , C‑124/10 P, EU:C:2012:318, paragraph 78 and the case-law cited).
31. According to the case-law of the Court of Justice, it is necessary to distinguish between, on the one hand, the role of a Member State as shareholder of an undertaking and, on the other, that of the State acting as a public authority. The applicability of the private investor test ultimately depends on the Member State concerned having conferred, in its capacity as shareholder and not in its capacity as public authority, an economic advantage on an undertaking (see judgments in Spain  v Commission , EU:C:1994:325, paragraph 22, and Commission v EDF , EU:C:2012:318, paragraphs 80 and 81).
33. For that purpose it is necessary to assess whether the measure would have been adopted in normal market conditions by a private investor in a situation as close as possible to that of the Member State concerned, and only the benefits and obligations linked to the situation of the State as shareholder — to the exclusion of those linked to its situation as a public authority — are to be taken into account (judgment in Commission  v EDF , EU:C:2012:318, paragraph 79).
34. Moreover, if there is no possibility of comparing the situation of a public authority with that of a private undertaking, ‘normal market conditions’ must be assessed by reference to the objective and verifiable elements which are available (judgments in Chronopost and Others  v Ufex and Others , C‑83/01 P, C‑93/01 P and C‑94/01 P, EU:C:2003:388, paragraph 38, and Commission  v EDF , EU:C:2012:318, paragraphs 101 and 102).