CELEX: 62012TJ0242
State aid
Aid measures implemented by France in favour of Sernam SCS
Aid measures for restructuring and recapitalising, guarantees and debt write-off by SNCF in favour of Sernam
Decision declaring the aid measures incompatible with the internal market
Misuse of aid
Recovery
Economic continuity
Private investor criterion

Background to the dispute
1.
The applicant and Sernam at the time of the facts
Société nationale des chemins de fer (SNCF) (‘SNCF’ or ‘the applicant’), set up as a
société anonyme
(limited liability company) in 1938, became a commercial industrial public corporation (EPIC) with effect from 1 January 1983, pursuant to Law No 82-1153 of 30 December 1982 on guidelines for internal transport. All of the capital (consisting of a State endowment and not shares) belongs to the State.
Since it was set up in 1970 by the applicant as an internal department, Sernam’s activities have consisted in mail and express parcel and pallet delivery services.
A reorganisation in 1993 led to the creation of Sernam Domaine and its subsidiary Sernam Transport SA. Sernam Domaine remained part of SNCF whereas Sernam Transport was set up as a wholly-owned subsidiary of SNCF, which in turn had 24 subsidiaries through which it carried out its road transport operations.
On 1 February 2000, Sernam Domaine was transformed into a new limited partnership, Sernam SCS, with separate legal personality and being a wholly-owned subsidiary of SNCF. Sernam SCS held inter alia the financial assets of Sernam Transport, which had become its wholly-owned subsidiary.
In December 2001 Sernam SCS became Sernam SA. In 2005, Sernam SA had 10 operating subsidiaries and a road transport service company, Sernam Transport Route (formerly Sernam Transport).
2.
The Sernam 1 decision
By its Decision NN 122/00 (ex N 140/00) of 23 May 2001 (‘the Sernam 1 decision’), the Commission of the European Communities found that the commercial assistance and recovery measures for Sernam SCS put in place by the applicant, which were to be implemented between the start of 2001 and the end of 2004, was State aid which was compatible with the EC Treaty. The total amount added up to EUR 503 million. The Commission also observed with regret that ‘[the French Republic] has unlawfully implemented the aid in question in breach of Article 88(3) of the Treaty’.
The EUR 503 million in aid was authorised on the basis of a commitment from the French Republic that the undertaking would be sold. Geodis SA was to purchase 60% of the capital of Sernam SCS. In this way, Geodis SA was to become entirely liable for Sernam SCS’s debts without limitation and cover the additional costs of Sernam’s restructuring up to EUR 67 million. In turn, Sernam SCS undertook to reduce the number of its operating sites from 107 to 72 over the period from 1999 to 2004, reduce its turnover by 18%, reduce its staff and implement restructuring with the abovementioned budget and within the prescribed timeframe.
3.
The Sernam 2 Decision
By correspondence of 17 June 2002, the French authorities informed the Commission that the aid approved under the Sernam 1 decision had been implemented on different terms than those on the basis of which the Commission had taken its decision.
By letter of 30 April 2003, the Commission informed the French Republic of its decision to initiate the procedure provided for in Article 88(2) EC in respect of that aid (State aid — France — Invitation to submit comments pursuant to Article 88(2) of the EC Treaty concerning Aid C 32/03 (ex NN 122/2000) — ‘Sernam 2: Revision of restructuring aid’) (
OJ 2003 C 182, p. 2
).
The Commission then carried out a new analysis of the dossier on the basis of an updated comprehensive restructuring plan that took account of the new circumstances. It analysed the new facts in order to ascertain to what extent they were or were not in conformity with the Sernam 1 decision and verified to what extent the new factual situation on the date of the decision — compared with the Sernam 1 decision — was compatible with the Community Guidelines on State aid for rescuing and restructuring firms in difficulty (
OJ 1999 C 288, p. 2
), in particular with regard to the one time, last time’ principle.
By Commission Decision 2006/367/EC of 20 October 2004 on the State aid partly implemented by France for the Sernam company (
OJ 2006 L 140, p. 1
) (‘the Sernam 2 Decision’), the Commission found that the Sernam 1 decision had not been complied with, which constituted misuse of aid within the meaning of Article 1(g) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] (
OJ 1999 L 83, p. 1
), and paragraph 43 of the Community Guidelines on State aid for rescuing and restructuring firms in difficulty.
It nevertheless found that the French authorities had fulfilled a number of their objectives in accordance with the Sernam 1 decision and that the aid under examination met the criteria for amending a restructuring plan provided for in point 3.2.4 of the Community Guidelines on State aid for rescuing and restructuring firms in difficulty. The Commission therefore confirmed that the aid approved by the Sernam 1 decision in the amount of EUR 503 million was compatible with the internal market under new conditions.
It also found that additional aid in the amount of EUR 41 million, paid by the applicant to Sernam and a direct consequence of the misuse of the aid approved by the Sernam 1 decision, had to be declared incompatible with the common market and recovered with interest.
The operative part of the Sernam 2 Decision reads as follows:
‘Article 1’
1.   The State aid of EUR 503 million for the Sernam company approved in May 2001 is compatible with the common market under the conditions laid down in Articles 3 and 4.
2.   The State aid of EUR 41 million provided by [the French Republic] to the Sernam company is incompatible with the common market.
Article 2
1.   [The French Republic] shall take all the measures necessary to recover from the beneficiary the aid referred to in Article 1(2) that has already been unlawfully placed at the beneficiary’s disposal.
2.   Recovery shall take place immediately in accordance with the procedures of national law to the extent that these procedures permit the immediate and effective implementation of this Decision. The aid to be recovered shall include interest from the day on which the aid was placed at the beneficiary’s disposal to the day on which the aid is recovered. Interest shall be calculated on the basis of the reference rate used for the calculation of the subsidy equivalent for aid granted for regional purposes.
Article 3
1.   Subject to paragraph 2, the following conditions shall be complied with:
(a)
Sernam may develop only its activities to carry mail by railway in accordance with the Train Bloc Express (TBE) concept. In this regard, SNCF guarantees that it will offer to any other operator who so requests the same conditions as those granted to Sernam to develop TBE freight transport by rail.
(b)
In return, Sernam shall, in the next two years as from the day on which this Decision is notified, fully replace its own road transport resources and services by road transport resources and services of one or more companies that are legally and economically independent of SNCF and are chosen in accordance with an open, transparent and non-discriminatory procedure.
Sernam’s own road transport resources and services means all of the road resources — i.e. road transport vehicles — of the Sernam company of which it has full ownership or which it leases or rents;
The companies that take over Sernam’s road activities shall perform the road transport services using their own resources.
2.   In the event that Sernam sells its assets en bloc by 30 June 2005 at market price through a transparent and open procedure to a company that has no legal link with SNCF, the conditions of paragraph 1 shall not be applicable.
Article 4
Any partial or full sale of Sernam shall be effected at market price and through a transparent procedure that is open to all its competitors. Under these conditions, the Sernam company shall, if it continues to exist, be responsible for paying back the aid of EUR 41 million.
…’
4.
The en bloc transfer of Sernam’s assets to Financière Sernam and the following events
Following the Sernam 2 Decision, the French authorities visited the Commission on 24 November 2004 and wrote to it officially on 21 December 2004 to inform it of the choice to sell Sernam’s assets en bloc, in accordance with Article 3(2) of the Sernam 2 Decision.
With the assistance of a bank (‘Bank X’), the applicant organised a call for tenders. Thirty-four groups were contacted.
According to the French authorities, Sernam’s economic situation failed to elicit any proposals based on a positive valuation. Apparently, all the offers submitted under this procedure concluded that the value was very negative:
—
Candidate 1 (preliminary offer): EUR ‑120 million;
—
Candidate 2 (preliminary offer): EUR ‑90.4 million;
—
Candidate 3 (preliminary offer): EUR ‑90.4 million;
—
Candidate 4 (non-binding, second-round offer): EUR ‑65.2 million;
—
Candidate 5 (non-binding, second-round offer): EUR ‑56.4 million.
No firm offer was submitted. However, two tenderers, candidate 4 and candidate 5, the latter of which was associated with Sernam’s management team, gave signs of serious interest at the end of the second round. The decision was taken to continue the discussions solely with the consortium established by candidate 5 who was associated with Sernam’s management team (‘the consortium’).
Candidate 5 ultimately informed the applicant orally on 15 June 2005 that it was not in a position to submit a takeover offer — not even a conditional one — before 30 June 2005.
Sernam’s management team, through a company still to be set up and initially called Bidco, then Financière Sernam, decided to make a takeover offer, which was sent to the applicant on 30 June 2005 and accepted in principle by the SNCF General Management on the same day.
The memorandum of understanding between SNCF, Sernam, SAS Sernam Xpress (one of the 10 wholly-owned subsidiaries of Sernam, set up in 2002, ‘Sernam Xpress’) and the managers of the future company Financière Sernam, was signed on 21 July 2005 (‘the memorandum of understanding of 21 July 2005’).
The transfer took place in four stages:
—
the applicant recapitalised its wholly-owned subsidiary Sernam to the amount of EUR 57 million;
—
Sernam made a partial contribution of assets (‘the contribution’), subject to the regulations on divisions under Articles L.236-16 to L.236-21 of the French Commercial Code, to its wholly-owned subsidiary Sernam Xpress, in return for which Sernam received a share in Sernam Xpress with a nominal value of EUR 100 (the remuneration for a partial contribution of assets being in the form of shares). That contribution covered the totality of the assets, including the EUR 57 million from the recapitalisation, and liabilities of Sernam, except for certain financial liabilities representing a total amount of EUR 38.5 million (‘the financial liabilities’), comprising:
—
the debt relating to the equity loan contracted by Sernam with the SNCF group on 21 December 2001;
—
the assets and liabilities relating to the cancellation of the ‘IBM-GPS’ contract;
—
immediately after the contribution was made, Sernam Xpress undertook a capital increase of EUR 2 million which was underwritten in full by the applicant; following this operation, the applicant held the majority of the shares in Sernam Xpress;
—
Sernam and the applicant assigned to Financière Sernam, for a price of EUR 2 million, all their shares in Sernam Xpress, which represented the entire capital of the latter.
Provision was also made for a price supplement in the event of subsequent transfer, total or partial, to a third party, of the capital or assets of the company being sold and a cancellation clause in the case of a negative decision by the Commission within five years following the conclusion of the memorandum of understanding of 21 July 2005.
At the time of the transfer, the applicant also granted guarantees.
The agreement for the partial contribution of assets between Sernam and Sernam Xpress is dated 14 September 2005. Financière Sernam was registered in the trade register on 14 October 2005.
The various operations involved in the transfer described in paragraph 22 above took place on the same day, 17 October 2005, the so-called closing date.
Sernam was put into compulsory liquidation on 15 December 2005. The amount of EUR 41 million repayable to the applicant under the Sernam 2 Decision was entered in the liabilities of the liquidation account, as was the EUR 38.5 million in financial liabilities not included in the contribution (see second indent of paragraph 22 above).
In 2006 an investment fund took a 51.8% stake in the capital of Sernam Xpress.
In May 2011, Sernam Xpress contributed the Sernam brand to its operating subsidiary, Sernam Services.
On 30 June 2011, Sernam Xpress was wound up and the company Financière Sernam, the sole partner, absorbed its assets and liabilities (an operation referred to as ‘the transfer of all assets and liabilities’).
On the date of the contested decision, the Sernam group consisted of Financière Sernam and the subsidiaries of the ex-Sernam Xpress: Sernam Services and Aster (formerly known as Sernam Transport Route).
Compulsory administration proceedings were initiated on 31 January 2011 against the companies Financière Sernam and Sernam Services. On 3 February 2012 the subsidiary Aster was put into liquidation with temporary continuation of business.
Considering that there was no credible plan for continuing the Sernam group’s activities, the appointed receiver began the search for candidates to take over the group.
5.
The procedure leading to the adoption of the contested decision
As early as 24 June 2005, a first complainant (‘the first complainant’) complained to the Commission about the incorrect application of the Sernam 2 Decision.
On 22 February 2006, the first complainant brought proceedings for failure to act against the Commission.
By letters of 10 April 2006 and 23 April 2007, another complaint was made to the Commission by a second interested party (‘the second complainant’).
The two complainants essentially considered that the Sernam 2 Decision had been incorrectly applied.
By its decision of 16 July 2008, entitled ‘State aid — France — State aid C 37/08 — Enforcing the Sernam 2 Decision — Invitation to submit comments pursuant to Article [108(2) TFEU]’ (
OJ 2009 C 4, p. 5
) (‘the opening decision’), the Commission opened the formal investigation procedure provided for in Article 108(2) TFEU.
On 29 April 2009, the General Court held that there was no need to adjudicate on the proceedings for failure to act instituted by the first complainant against the Commission (order of 29 April 2009 in HALTE v Commission,
T‑58/06
,
EU:T:2009:125
).
On 9 March 2012, the Commission adopted Decision 2012/398/EU on State aid SA.12522 (C 37/08) — France — Enforcing the Sernam 2 Decision (
OJ 2012 L 195, p. 19
) (‘the contested decision’), which was sent to the French authorities on 10 March 2012. The French authorities sent it to the applicant on 26 March 2012.
6.
The contested decision
As a preliminary point, the Commission stated that the procedure had been opened under Article 16 of Regulation No 659/1999 because the Commission had information indicating that the French Republic had misused the aid authorised conditionally by the Sernam 2 Decision, even after misuse of the aid which had been authorised, also conditionally, by the Sernam 1 decision.
The misuse of the State aid authorised by the Sernam 2 Decision
The Commission took the view that since the French authorities had confirmed non-compliance with the conditions set out in Article 3(1) of the Sernam 2 Decision, it could confine itself to verifying whether the French Republic had complied with the conditions set out in Article 3(2) of the Sernam 2 Decision.
The Commission considered that numerous requirements laid down in Article 3(2) of the Sernam 2 Decision had not been observed.
Firstly, the Commission found, in point 3.2.1 of the contested decision, that the transfer of activities had not been completed by 30 June 2005.
Secondly, the Commission found, in point 3.2.2 of the contested decision, that, given that the price was negative, the transfer of activities effected was not a sale and that, for the same reason, Article 3(2) of the Sernam 2 Decision had not been observed.
Thirdly, the Commission found, in point 3.2.3 of the contested decision, that the transfer of activities did not constitute a sale of the assets, but a transfer of Sernam in its entirety (assets and liabilities) because it consisted in an intra-group transfer en bloc of the assets and liabilities, followed by a sale of shares (share deal) of the subsidiary which received them (recitals 108 to 112 of the contested decision) and the transfer was not limited to the assets but comprised Sernam in its entirety (assets and liabilities) (recitals 113 to 116 of the contested decision).
Fourthly, the Commission found, in point 3.2.4 of the contested decision, that the transfer was not limited to the assets held by Sernam at the time of the Sernam 2 Decision, but that the recapitalisation, totalling a net amount of EUR 57 million, constituted an addition of assets which was not authorised by Article 3(2) of the Sernam 2 Decision.
Fifthly, the Commission found, in point 3.2.5 of the contested decision, that the transfer of activities had not taken place through a transparent and open procedure.
Sixthly, the Commission found, in point 3.2.6 of the contested decision, that the ultimate purpose of a sale of assets had not been observed.
By way of conclusion, the Commission found that Article 3 of the Sernam 2 Decision had not been complied with and that, consequently, the EUR 503 million of aid had been misused.
The Commission found that, because the aid had been used by the recipient contrary to the Sernam 2 Decision, the aid of EUR 503 million was not compatible with the internal market on the basis of the Sernam 2 Decision. It found that since the French Republic had not put forward any grounds of compatibility, that aid was incompatible and had to be recovered, together with interest, from the date on which it had been made available to Financière Sernam and its subsidiaries, including Sernam Services and Aster, which, according to the Commission, were continuing the economic activity which had received the aid, previously engaged in by Sernam and then by Sernam Xpress (the assets and liabilities of which had been absorbed by Financière Sernam following a transfer of all assets and liabilities on 30 June 2011.
Recovery of the EUR 41 million of aid
In recitals 132 to 151 of the contested decision, the Commission examined the issue whether the French Republic had correctly recovered the aid of EUR 41 million declared incompatible in the Sernam 2 Decision by entering it in the liabilities of the liquidation account of Sernam and whether, in the light of the EU case-law on recovery, it was appropriate to extend that recovery to Financière Sernam and its subsidiaries, Sernam Services and Aster. The Commission referred in particular to the judgments of 8 May 2003 in Italy and SIM 2 Multimedia v Commission (
C‑399/00 and C‑328/99
, ECR,
EU:C:2003:252
) (‘the
Seleco
judgment’); of 29 April 2004 in Germany v Commission (
C‑277/00
, ECR,
EU:C:2004:238
) (‘the
SMI
judgment’); and of 19 October 2005 in CDA Datenträger Albrechts v Commission (
T‑324/00
, ECR,
EU:T:2005:364
) (‘the
CDA
judgment’).
Firstly, in recitals 144 to 148 of the contested decision, the Commission found that the transfer of activities from Sernam to Sernam Xpress had the consequence that Sernam Xpress continued to benefit from the competitive advantage linked with the receipt of the aid granted because there was economic continuity between the two companies and the transfer of activities from Sernam to Sernam Xpress corresponded to an evasion of the recovery order imposed on Sernam.
Secondly, it observed, in recital 149 of the contested decision, that, according to the case-law, the sale of shares in a company which is the beneficiary of unlawful aid by a shareholder to a third party did not affect the requirement for recovery from the recipient company. Consequently, Sernam Xpress was not released from its obligation to repay the aid of EUR 41 million following the sale of its shares to Financière Sernam.
Thirdly, the Commission found, in recital 150 of the contested decision, that the merger between Sernam Xpress and Financière Sernam on 30 June 2011 had had the effect of transferring the benefit of the aid of EUR 41 million and, therefore, the obligation of repayment to Financière Sernam and its subsidiaries, including Sernam Services and Aster, which were continuing the business of Sernam and Sernam Xpress.
The new aid granted to Sernam Xpress-Financière Sernam
The Commission found that the measures provided for by the memorandum of understanding of 21 July 2005 constituted new State aid. Those measures are: the recapitalisation of Sernam by the applicant in the amount of EUR 57 million net, the writing-off of two debts totalling EUR 38.5 million by the applicant in favour of Sernam and four guarantees granted by the applicant to Sernam Xpress-Financière Sernam.
The Commission began by discussing, in recitals 154 to 158 of the contested decision, why it had decided not to apply the test of private investor in a market economy in categorising the measures in the light of Article 107(1) TFEU.
Firstly, it found, in recital 154 of the contested decision, that in an aid recovery situation, it was not appropriate to apply the private investor test.
Secondly, the Commission found in recital 155 of the contested decision that, in Article 3(2) of the Sernam 2 Decision, the sale of assets was an equivalent to the compensatory measures imposed by Article 3(1) thereof. However, according to point 40 of the Community guidelines on State aid for rescuing and restructuring firms in difficulty (
OJ 2004 C 244, p. 2
,) (‘the Guidelines on rescuing and restructuring’), the divestment of a loss-making activity cannot be considered as a compensatory measure. The Commission stated that the negative price showed that a divestment of a loss-making activity was involved which could not be the equivalent of a compensatory measure and that, in the case at hand, the negative price corresponded to operating aid to the undertaking, which was therefore inherently ill-suited to reduce distortions of competition.
Regarding the categorisation of State aid, the Commission found in recital 159 of the contested decision that the measures had been granted from the resources of a public undertaking, the applicant. As the applicant was a body governed by public law, an EPIC, subject to very close scrutiny by the State, the granting of the advantage was therefore also imputable to the State. Since Sernam Xpress and Financière Sernam operated in road transport, which was open to competition within the Union, the advantage was liable to create distortions of competition and affect trade between Member States. The Commission noted that there was no need to distinguish between the advantages granted to Sernam Xpress and to Financière Sernam, since the two had merged.
As the French Republic had the burden of proving that the aid was compatible with the internal market but had not put forward any grounds of compatibility so proving, the Commission concluded that the aid was incompatible with the internal market and had to be recovered, together with interest.
The operative part of the contested decision reads as follows:
‘Article 1
1.   The State aid of EUR 503 million, granted by [the French Republic] to Sernam SCS (which became [Sernam]) and approved by the Commission by [the Sernam 2 Decision] was used improperly. It is incompatible with the internal market. This aid also benefited Sernam Xpress, as well as Financière Sernam and its subsidiaries, Sernam Services and Aster.
2.   The State aid of EUR 41 million, granted by [the French Republic] to Sernam SCS and declared incompatible by the Sernam 2 Decision, also benefited Sernam Xpress, as well as Financière Sernam and its subsidiaries, and notably Sernam Services and Aster.
3.   The recapitalisation of EUR 57 million of [Sernam] by SNCF, the write-off of [Sernam’s] debts to SNCF amounting to EUR 38.5 million and the guarantees granted by SNCF on the transfer of the business of [Sernam] to Financière Sernam, with the exception of the guarantee granted to the railwaymen, constitute State aid which is incompatible with the internal market.
Article 2
1.   [The French Republic] shall recover the aid referred to in Article 1 from Financière Sernam and its subsidiaries, Sernam Services and Aster.
2.   The sums to be recovered shall bear interest from the date on which they were made available to the beneficiary until their actual recovery.
3.   The interest shall be calculated on a compound basis pursuant to Chapter V of Regulation (EC) No 794/2004 of 21 April 2004.
Article 3
1.   Recovery of the aid referred to in Article 1 shall be immediate and effective.
2.   [The French Republic] shall ensure that this Decision is implemented within four months following the date of notification of this Decision.
3.   In implementing this Decision, [the French Republic] may take account of any sums recovered by SNCF as a result of the winding-up of [Sernam] under the conditions set out above.
Article 4
1.   Within two months of the date on which this decision is notified, [the French Republic] shall communicate the following information to the Commission:
(a)
the date on which aid under each measure was made available to the beneficiary and the total amount (principal and interest) to be recovered from the beneficiary for each aid measure;
(b)
a detailed description of the measures already taken and planned to comply with this Decision;
(c)
documents showing that the beneficiary has been ordered to repay the aid.
2.   [The French Republic] shall keep the Commission informed of the progress in the national measures taken to implement this Decision until recovery of the aid referred to in Article 1 has been completed. It shall immediately submit, on simple request by the Commission, information on the measures already taken and planned to comply with this Decision. It shall also provide detailed information concerning the amounts of aid and the interest already recovered from the beneficiary.
Article 5
This Decision is addressed to the French Republic.’
7.
Facts subsequent to the contested decision
Following the adoption of the contested decision, on 23 March 2012 the French authorities requested the Commission to confirm that the obligation to repay the State aid which had been imposed on the companies in the Sernam group by Article 2 of the contested decision would not be extended to companies in the Geodis groups (belonging to the applicant’s group) and BMV, in the event of their takeover of part of the assets of the Sernam companies as part of their judicial recovery.
In its decision of 4 April 2012 on State aid SA.34547 (2012/N) — France — Reprise des actifs du groupe Sernam dans le cadre de son redressement judiciaire [Takeover of the assets of the Sernam group as part of its judicial recovery] (‘the Sernam 4 Decision’), the Commission concluded that there was no economic continuity between the Sernam group and the parties’ taking over part of its assets, Geodis and BMV, and that it was not necessary to extend the recovery of the aid declared to be unlawful and incompatible in the contested decision to Geodis and BMV.
On 13 April 2012, Financière Sernam and Sernam Services were liquidated. On the same day Geodis lodged an offer and was designated by the Tribunal de commerce de Nanterre (Commercial Court, Nanterre) (France) as the party taking over the assets in the Sernam group.
Procedure and forms of order sought
By application lodged at the Registry of the General Court on 4 June 2012, the applicant brought the present action.
By document lodged at the Court Registry on 18 October 2012, the French Republic applied for leave to intervene in support of the form of order sought by the applicant. By order of 26 November 2012, the President of the Sixth Chamber of the Court granted leave to intervene. The French Republic lodged its statement in intervention on 11 February 2013.
By document lodged at the Court Registry on 14 February 2013, the applicant applied for leave to lodge new evidence for inclusion in the case file. The President of the Sixth Chamber included the new evidence in the case file on 26 February 2013. The Commission lodged observations on the new evidence on 14 March 2013. The French Republic informed the Court that it had no observations to submit.
Following a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Seventh Chamber, to which the present case was accordingly allocated on 23 September 2013.
By document lodged at the Court Registry on 25 November 2013, Mory SA, Mory Team and Superga Invest sought leave to intervene in the present case in support of the forms of order sought by the Commission.
By document lodged at the Court Registry on 29 January 2014, the applicant sought confidential treatment for certain evidence and parts of procedural documents, in the event that the application from the applicants to intervene to have access to all procedural documents would, exceptionally, be granted. To that end the applicant produced a non-confidential version of the procedural documents in question.
By order of 23 May 2014 the President of the Seventh Chamber of the General Court granted leave to intervene to Mory and Mory Team on the basis of Article 116(6) of the Rules of Procedure of the General Court of 2 May 1991 and dismissed the application to intervene from Superga Invest. The decision on the applicant’s request for confidentiality was reserved.
By letter of 23 October 2014, by way of measures of organisation of procedure provided for in Article 64 of the Rules of Procedure of 2 May 1991, the General Court put questions in writing to the applicant, the Commission and the French Republic, asking them to answer in writing and asking the applicant and the Commission to lodge certain documents. The parties complied with that request within the time allowed.
By document lodged at the Court Registry on 17 November 2014, the applicant made a second request to lodge new evidence for inclusion in the case file. The President of the Seventh Chamber of the Court included the new evidence in the case file on 21 November 2014, asking the Commission and the French Republic to provide their observations on that evidence at the hearing.
By letter lodged at the Court Registry on 27 November 2014, the applicant lodged observations on the answers to the questions lodged by the Commission. By decision of 3 December 2014, the President of the Seventh Chamber of the Court decided not to place that letter in the case file.
The parties presented oral argument and replied to the questions put by the Court at the hearing which took place on 12 February 2015.
The applicant, supported by the French Republic, claims that the Court should:
—
annul the contested decision;
—
order the Commission to pay the costs.
The Commission contends that the Court should:
—
declare that the action is inadmissible or, in the alternative, unfounded;
—
order the applicant to pay the costs.
Mory and Mory Team contend that the Court should dismiss the action as inadmissible or, in the alternative, as unfounded.
Law
The applicant puts forward six pleas in law in support of its application for annulment. The first plea alleges infringement of its rights of defence, in that the Commission adopted a position in the contested decision regarding the inapplicability of the private investor test, which had not been referred to in the opening decision. The French Republic argues that its rights of defence were infringed as well, on the same grounds. The second plea alleges infringement of the principle of the protection of legitimate expectations. The third plea alleges infringement of the duty to act within a reasonable time and of the principle of legal certainty. The fourth plea alleges errors of law and of fact committed by the Commission in its finding that the transfer en bloc of Sernam’s assets had not complied with the conditions laid down in Article 3(2) of the Sernam 2 Decision. The fifth plea alleges an error of law on the part of the Commission in its finding that the obligation to recover the EUR 41 million in State aid declared incompatible in the Sernam 2 Decision had been transferred to Financière Sernam and its subsidiaries. The sixth plea alleges an error of law on the part of the Commission in its finding that the measures provided for in the memorandum of understanding of 21 July 2005 constituted new State aid in favour of Sernam Xpress-Financière Sernam.
The Court considers that it is appropriate to begin by examining the last three pleas in law, followed by the first three pleas, relating to infringements of general principles of EU law, as numerous questions raised by the latter turn on the assessment of the fourth, fifth and sixth pleas.
1.
The fourth plea: errors of law and of fact on the part of the Commission in its finding that the transfer en bloc of Sernam’s assets had not complied with the conditions laid down in Article 3(2) of the Sernam 2 Decision
The applicant’s fourth plea is divided into six parts. The first part alleges errors of law and of fact on the part of the Commission in its finding, in recitals 97 and 98 of the contested decision, that the transfer en bloc of Sernam’s assets had not taken place on 30 June 2005. The second part alleges errors of law and of fact on the part of the Commission in that it found, in recitals 99 to 102 of the contested decision, that the transfer en bloc of Sernam’s assets at a negative price did not constitute a sale. The third part alleges an error of law and of fact on the part of the Commission in its finding, in recitals 103 to 116 of the contested decision, that the operation constituted a transfer of Sernam ‘in its entirety’. The fourth part alleges an error of law on the part of the Commission in its finding, in recital 117 of the contested decision, that the transfer was not limited to the assets of Sernam, but had been increased by EUR 59 million (or EUR 57 million net). The fifth part alleges errors of law and of fact on the part of the Commission in its finding, in recitals 118 and 119 of the contested decision, that the sale en bloc of Sernam’s assets had not taken place through a transparent and open procedure. The sixth part alleges errors of law and of fact on the part of the Commission in its finding, in recitals 121 to 123 of the contested decision, that the purpose of a sale of the assets had not been observed.
In the area of misuse of aid, it is apparent from a combined reading of Article 108(2) TFEU, Article 1(g) of Regulation No 659/1999 and Article 16 of that same regulation that it is, in principle, for the Commission to establish that all or part of the aid previously authorised by it by an earlier decision has been misused by the recipient. If it fails to do so, that aid is to be considered as being covered by its previous approval decision (judgment of 11 May 2005 in Saxonia Edelmetalle and ZEMAG v Commission,
T‑111/01 and T‑133/01
, ECR,
EU:T:2005:166
, paragraph
).
The first part: errors of law and of fact on the part of the Commission in its finding, in recitals 97 and 98 of the contested decision, that the transfer en bloc of Sernam’s assets had not taken place on 30 June 2005
Firstly, the applicant criticises the Commission for having distorted the text of the Sernam 2 Decision in recital 98 of the contested decision by stating that the ‘transfer of the activities of [Sernam] to Financière Sernam [had] not [taken] place by 30 June 2005 at the latest, even though this was a requirement under the Sernam 2 Decision’. It states that Article 3(2) of the Sernam 2 Decision referred only to the ‘sale’ and not the ‘transfer’ of the activities per se. Secondly, the applicant criticises the Commission for having found, in recital 97 of the contested decision, that the acceptance by the President of SNCF, on 30 June 2005, of the firm offer from Financière Sernam was not sufficient, under French law, to conclude the sale. It states that, under French law, the agreement between the purchaser and the vendor on the subject matter and the price, irrespective of the legal form, is sufficient to conclude an irrevocable bill of sale, even where the subject matter of the sale has not been delivered and the price not paid.
In paragraphs 97 and 98 of the contested decision, the Commission stated that, on 30 June 2005, the applicant’s management had only accepted Financière Sernam’s firm offer in principle. It found, however, that the memorandum of understanding, which was binding on all the parties to the transaction, was not signed until 21 July 2005 and that the various transfer operations were carried out only on 17 October 2005. The Commission inferred therefrom that the transfer of Sernam’s activities to Financière Sernam had not taken place by 30 June 2005, even though this was a requirement under the Sernam 2 Decision, and that that reason was sufficient grounds for finding that the French Republic had misused the aid authorised conditionally by the Sernam 2 Decision.
According to settled case-law, in interpreting a provision of EU law it is necessary to consider not only its wording but also the context in which it occurs and the objects of the rules of which it is part (judgments of 17 November 1983 in Merck,
292/82
, ECR,
EU:C:1983:335
, paragraph
, and 21 February 2013 in RVS Levensverzekeringen,
C‑243/11
, ECR,
EU:C:2013:85
, paragraph
).
It is also settled case-law that the operative part of an act is indissociably linked to the statement of reasons for it, so that, when it has to be interpreted, account must be taken of the reasons which led to its adoption (judgment of 15 May 1997 in TWD v Commission,
C‑355/95 P
, ECR,
EU:C:1997:241
, paragraph
).
Regarding the applicant’s first argument, to the effect that the Commission distorted the text of the Sernam 2 Decision, it should be observed that Article 3(2) of the Sernam 2 Decision concerns the scenario of Sernam ‘sell[ing] its assets en bloc by 30 June 2005’.
Recital 217 of the Sernam 2 Decision states that, ‘on the other hand, should Sernam sell its assets en bloc, the Commission recalls that [the two conditions set out in Article 3(1)] concerning the company’s restructuring will not apply as Sernam will no longer operate in its current legal form and [would] cede its market shares to the independent acquiring party (which will de facto continue its activities with Sernam’s assets)’.
Consequently, as observed by the Commission, the time to be taken into account for assessing whether the sale took place in this case was necessarily the time of the actual transfer of the assets, since the objective pursued by Article 3(2) of the Sernam 2 Decision, read in the light of recital 217 thereof, was to oblige Sernam to divest itself of the entirety of its assets and to free up its market shares. A contrary, formalistic interpretation of Article 3(2) of the Sernam 2 Decision would block its intended effect and give rise to the risk of the actual transfer of the assets being postponed to a point in time long after the conclusion of the ‘sale’ in the legal sense of the term.
The conclusion is accordingly that the Commission was correct in finding that the various transfer operations took place only on the designated closing day, namely 17 October 2005, and that, consequently, the deadline of 30 June 2005 fixed by Article 3(2) of the Sernam 2 Decision had not been observed.
Therefore, the applicant’s second argument concerning the exact time at which the ‘sale’ was concluded as a matter of French law is ineffective.
The first part of the fourth plea must therefore be rejected.
The second part: errors of law and of fact on the part of the Commission in its finding, in recitals 99 to 102 of the contested decision, that the transfer en bloc of Sernam’s assets at a negative price did not constitute a sale
The applicant, supported by the French Republic, submits, in essence, that the Commission made errors of law and of fact in holding, in recitals 99 to 102 of the contested decision, that there had been an infringement of Article 3(2) of the Sernam 2 Decision, because the contract concluded between it and Financière Sernam did not constitute a sale because the price was negative.
Recital 124 of the contested decision, also criticised by the applicant, concerns a different matter than that referred to in recitals 99 to 102 thereof, as it covers the operation’s being broken down into two stages (the contribution by Sernam to Sernam Xpress, followed by a transfer of the shares in Sernam Xpress to Financière Sernam) and the fact that the Commission, in essence, refused to accept that those different operations, taken as a whole, could be considered equivalent to a sale of ‘assets en bloc’. Given that recital 124 refers to arguments analogous to those directed at recitals 108 to 112 of the contested decision, the Court finds it appropriate to consider together the applicant’s arguments directed at those various recitals under the third part of this plea (see paragraphs 140 to 149 below).
In recitals 99 and 100 of the contested decision, the Commission found that a ‘sale’ consisted in the transfer of ownership of a good against the payment of a price, which price had to be positive, and that a transaction by which the person wishing to transfer ownership of one or more goods offers money to the person who acquires them is not a sale, but a different type of contract. In recital 101 of the contested decision, the Commission found that, in the present case, the applicant had paid EUR 59 million by undertaking the recapitalisation of Sernam for EUR 57 million and of Sernam Xpress for EUR 2 million respectively, whilst also granting various guarantees to Financière Sernam. It found that the payment of EUR 2 million by Financière Sernam in favour of the applicant and Sernam neutralised the recapitalisation of Sernam Xpress, but not the other components of the transaction. The Commission concluded, in recital 102 of the contested decision, that the contract concluded between the applicant and Financière Sernam did not constitute a sale and that, for the same reason, Article 3(2) of the Sernam 2 Decision had not been observed.
In that regard the applicant, supported by the French Republic, puts forward, in essence, three arguments.
Firstly, it argues that the use of the generic term ‘sale’ in the Sernam 2 Decision was unrelated to the type of contract concluded, as the effect of the operation was as expected, namely the transfer en bloc of ownership of the assets in Sernam to a third party independent of the applicant. Secondly, it explains that it is the constraints of French law, such as the prohibition on a sale at a negative price, which obliged it to structure the operation as it did and recapitalise Sernam beforehand, but that the negative price is nevertheless a market price, which is the only condition imposed by Article 3(2) of the Sernam 2 Decision. Thirdly, the applicant and the French Republic refer to precedents showing that, in its decision-making practice, the Commission has accepted the categorisation of ‘sale’ for a transfer of assets or of shares effected at a negative price.
The Commission disputes those arguments and begins by submitting that the applicant acknowledges implicitly that the operation is not a sale within the meaning of Article 1582 of the French Civil Code, as it put in place operations aimed at circumventing the prohibition under French law on sales at a negative price. Secondly, it takes the view that the transfer of activities at a negative price does not have the same economic impact as a sale of assets at a positive price since, in the first scenario, an operator is paid to keep alive an activity and undertaking which should not survive, whilst in the latter scenario a good which has an actual, positive value is transferred in order to be utilised in an economically rational manner. This point is of essential importance, particularly having regard to the requirements of discipline in the field of aid and the purpose of the Sernam 2 Decision. Thirdly, the Commission observes that, according to settled case-law, the Commission’s decision-making practice in other cases does not affect the validity of the contested decision, which falls to be assessed solely having regard to the objective rules of the Treaty. Next, it submits, in essence, that the decisions relied on by the French Republic and the applicant are not applicable in the present case, inter alia because they are subsequent to the completion of the operation and because they concerned sales of shares, whereas the scenario in the present case is a sale of assets.
Firstly, it should be observed that, on the basis of a literal interpretation of Article 3(2) of the Sernam 2 Decision, a ‘sale of the assets en bloc’ of Sernam was required and that the only price-related requirement was that it be a market price through a transparent and open procedure.
As is apparent from paragraph 86 above, in interpreting the Sernam 2 Decision, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the economic rules of which it is part.
Consequently, the Commission may not rely solely on legal concepts or forms in order to infer that compatibility conditions for restructuring aid imposed in one of its decisions were not observed. Moreover, the legal concept of ‘sale’ is specific to the law of each Member State.
The applicant is therefore correct in stating that State aid law is not concerned with the legal forms that transactions may take, but rather focuses on their economic reality.
Consequently, the Commission’s formalistic arguments based on French law must be rejected.
Secondly, the applicant argues convincingly that pre-sale recapitalisation is one means of avoiding the prohibition under French law against stipulating a negative price in a contract of sale.
The question of exactly what is the economic impact in the present case of that sale at a negative price will be examined under the third and sixth parts of this plea.
Thirdly, it should be observed that the decisions referred to by the applicant and the French Republic illustrate the possibility of selling undertakings’ shares at ‘negative prices’, that is to say, in return for prior recapitalisation by the vendor (see, inter alia, Decisions of 13 July 2009 on restructuring aid in favour of Combus AS, and of 28 August 2009 on State aid C 6/09 (ex N 663/08) concerning measures in favour of Austrian Airlines).
Therefore, the Commission’s reasoning, as set out in recitals 99 to 102 of the contested decision, to the effect that since the transfer price is negative, there is no sale and, for the same reason, Article 3(2) of the Sernam 2 Decision was not observed, is incorrect.
Therefore, the second part of the fourth plea must be upheld.
The third part: errors of law and of fact on the part of the Commission in its finding, in recitals 103 to 116 of the contested decision, that the operation constituted a transfer of Sernam
‘in its entirety
’ (assets and liabilities)
The applicant puts forward two complaints in support of the third part. Firstly, it criticises the Commission for having found, in recitals 103 and 113 to 116 of the contested decision, that the transfer it effected was not limited to the assets, but comprised Sernam in its entirety (assets and liabilities) and that, for the same reason, the condition relating to the en bloc sale of Sernam’s assets provided for by Article 3(2) of the Sernam 2 Decision had not been observed. Secondly, it criticises the Commission, in essence, for having, in recitals 108 to 112 and 124 of the contested decision, artificially broken down the en bloc sale of Sernam’s assets into two separate operations — a first operation consisting in the partial contribution of assets from Sernam to Sernam Xpress and a second operation consisting in the sale of the shares in Sernam Xpress to Financière Sernam — whereas in reality it is a single operation, completely simultaneous and indissociable, effected in a ‘rational instant’ and pursuing one and the same objective, namely the sale en bloc of Sernam’s assets to Financière Sernam.
The first complaint: the Commission found, incorrectly, in recitals 103 and 113 to 116 of the contested decision, that the transfer completed by the applicant was not limited to the assets, but comprised Sernam in its entirety (assets and liabilities)
The applicant puts forward, in essence, three arguments. Firstly, it submits that the Commission misread Article 3(2) of the Sernam 2 Decision, in presupposing, in paragraph 103 of the contested decision, that the sale of the assets en bloc covered solely Sernam’s assets and excluded the liabilities. Secondly, it refers to the constraints under national law to explain that it was necessary to add certain liabilities, in particular operating liabilities, for the sole purpose of avoiding opposition by creditors, as provided for under French legislation. Thirdly, the applicant submits that, contrary to the Commission’s statement in recital 116 of the contested decision, the transfer did not cover Sernam ‘in its entirety’ (assets and liabilities), which is confirmed by the contradictory passages of the contested decision concerning the exact scope of the subject matter of the transfer.
– The first argument: the Commission misread Article 3(2) of the Sernam 2 Decision, in presupposing that the sale of Sernam’s assets en bloc covered solely Sernam’s assets and excluded the liabilities
Firstly, the applicant submits that the concept of sale of the assets en bloc, by definition, required that the sale cover the entirety of Sernam’s assets and that they be sold ‘en bloc’, that is to say, all together to one and the same purchaser, but that it did not mean that those assets necessarily had to be sold alone.
In recital 103 of the contested decision it is stated that, ‘even if the transfer of the activities of [Sernam] to Financière Sernam did constitute a sale, compliance with Article 3(2) of the Sernam 2 Decision presupposes that this sale relates solely to the assets, and not to [Sernam] in its entirety (assets and liabilities)’ and that ‘this results from recital 217 of the Sernam 2 Decision’. In recital 113 of the contested decision, the Commission further explained that ‘recital 217 of the Sernam 2 Decision … establishes a clear distinction between a sale of assets, on the one hand, and a sale of [Sernam] in its entirety (assets and liabilities), on the other’.
According to the case-law referred to in paragraph 87 above, the operative part of an act is indissociably linked to the statement of reasons for it, so that, when it has to be interpreted, account must be taken of the reasons which led to its adoption.
The two paragraphs of Article 3 of the Sernam 2 Decision set out as alternatives, read as follows:
‘1.   Subject to paragraph 2, the following conditions shall be complied with:
(a)
Sernam may develop only its activities to carry mail by railway in accordance with the Train Bloc Express (TBE) concept. …
(b)
In return, Sernam shall, in the next two years as from the day on which this Decision is notified, fully replace its own road transport resources and services by road transport resources and services of one or more companies that are legally and economically independent of SNCF and are chosen in accordance with an open, transparent and non-discriminatory procedure. …
2.   In the event that Sernam sells its assets en bloc by 30 June 2005 at market price, through a transparent and open procedure, to a company that has no legal link with SNCF, the conditions of paragraph 1 shall not be applicable.’
Recital 217 of the Sernam 2 Decision reads as follows:
‘The Commission also recalls that, if Sernam is sold in its entirety (assets and liabilities) as intended by the French authorities, the conditions of the decision (takeover of Sernam’s road activities by other companies and diversification of its activities towards rail freight) should in any case apply. On the other hand, should Sernam sell its assets en bloc, the Commission recalls that the above two conditions concerning the company’s restructuring will not apply as Sernam will no longer operate in its current legal form and will cede its market shares to the independent acquiring party (which will de facto continue its activities with Sernam’s assets).’
The wording indicates clearly that the Sernam 2 Decision estalishes a clear contrast between a ‘sale of Sernam in its entirety (assets and liabilities)’ and a ‘sale of the assets en bloc’ of Sernam.
Consequently, the Commission was correct in finding that the sale of the assets en bloc, as referred to in Article 3(2) of the Sernam 2 Decision, read in the light of recital 217 of the same decision, covered solely the assets and excluded the liabilities.
A contrary interpretation of that provision would amount to a denial of the difference between the two alternative conditions set out in Article 3(1) and (2) of the Sernam 2 Decision (and the two sale scenarios envisaged in recital 217 thereof). It should be noted that, if the sale of assets en bloc were to be interpreted as also encompassing the liabilities, it would then become illogical and inconsistent to attach different conditions to Article 3(1) and (2) of the Sernam 2 Decision.
Secondly, the applicant submits that, if there were an operation to be contrasted with the sale of assets en bloc, it would be the sale of the assets separately, not the sale of Sernam in its entirety (assets and liabilities), as stated by the Commission itself in the cases which gave rise to the SMI judgment, cited in paragraph
above (
EU:C:2004:238
, paragraphs
and
), and the CDA judgment, cited in paragraph
above (
EU:T:2005:364
, paragraph
).
That argument must be rejected on the ground that the Commission’s decision-making practice in other cases cannot affect the validity of a contested decision, which can be assessed only in the light of the objective rules of the Treaty (judgment of 20 May 2010 in Todaro Nunziatina & C.,
C‑138/09
, ECR,
EU:C:2010:291
, paragraph
).
In the present case the Sernam 2 Decision must be interpreted in the light of its own statement of reasons and not in the light of the Commission’s position on other cases. It is clear, however, that the contrast between sale of the assets en bloc and sale of the assets separately is not to be found in the Sernam 2 Decision.
Thirdly, the applicant submits that, if that was its intention, the Commission ought to have stated specifically in the Sernam 2 Decision that the sale of the assets en bloc excluded the liabilities. At the hearing the applicant referred to the subsequent decisions in the so-called ‘Polish shipyards’ case, which were more detailed on the conditions imposed — referring inter alia to recitals 349, 350 and 354 of the Commission Decision of 6 November 2008 on State aid C 19/05 (ex N 203/05) granted by Poland to Stocznia Szczecińska (
OJ 2010 L 5, p. 1
), and recitals 401 to 410 of the Commission Decision of 6 November 2008 on State aid C 17/05 (ex N 194/05 and PL 34/04) granted by Poland to Stocznia Gdynia (
OJ 2010 L 33, p. 1
).
Yet not only is the Sernam 2 Decision definitive and not susceptible to challenge in the context of the present proceedings, it is apparent from recital 217 therein that it was sufficiently clear, contrasting as it did the conditions attached to the sale of Sernam in its entirety (assets and liabilities) with those attaching to the sale en bloc of Sernam’s assets, that the sale of the assets en bloc excluded the liabilities. In any event, since the Commission is required to conduct an individual analysis of the facts of each case, it is not bound by other decisions and even less by subsequent decisions.
Consequently, the first argument must be rejected.
– The second argument: the constraints under national law obliged the applicant to add certain of Sernam’s liabilities to its assets (with the exception of the financial liabilities)
The applicant submits that it was bound to add the operating liabilities to Sernam’s assets for the sole purpose of avoiding creditors exercising their right of opposition as provided for under French legislation. It states that French law allows creditors to object to contribution or transfer operations and to obtain either immediate reimbursement of their claim or to be provided with guarantees. Moreover, if subsequent collective proceedings are instituted, creditors may challenge any acts which diminish the value of the debtor’s assets in the 18 months preceding the institution of the collective proceedings. Thus, in the applicant’s submission, if only Sernam’s assets had been sold, Sernam’s creditors would have found themselves creditors of a company devoid of assets and heavily encumbered with debt, which would have rendered nugatory any prospects of recovering their claim; consequently, in all likelihood they would have objected to the transfer of Sernam’s assets en bloc alone or, if they had accepted that transfer of the assets alone, they would almost certainly have challenged it in the subsequent liquidation proceedings that would have taken place. Therefore, according to the applicant, it was necessary to add the operating liabilities in order to effect the transfer of Sernam’s assets.
However, not only has the applicant failed to demonstrate that the sale of the assets alone would have deprived the creditors of any prospect of recovery, as that sale normally ought to have generated income for Sernam, it should be noted that this type of argument, alleging specificities of national law, is based on the premiss that the Commission required compliance with the conditions set out in Article 3(2) of the Sernam 2 Decision, whereas there was a choice between the two paragraphs of Article 3 of that decision.
As observed by the Commission in its statement in defence, if the applicant and the Member State were to encounter difficulties in implementing Article 3(2) of the Sernam 2 Decision due to practical obstacles or impediments under national law, they have a number of choices: (i) apply the conditions laid down in Article 3(1) of the Sernam 2 Decision; (ii) contact the Commission to inform it of the difficulties and discuss possible amendments to the condition in accordance with the Guidelines on rescuing and restructuring; or (iii) recover the unlawful aid declared to be incompatible, if necessary by liquidating Sernam.
Consequently, the applicant cannot rely here on constraints under national law in order to circumvent the condition it chose.
Consequently, the second argument must be rejected.
– The third argument: the transfer did not, in reality, cover Sernam ‘in its entirety’ (assets and liabilities)
Firstly, the applicant submits that, contrary to the Commission’s assertions in recital 116 of the contested decision, the transfer did not cover Sernam ‘in its entirety’ (assets and liabilities), as the financial liabilities and the amount of the obligation to repay the EUR 41 million in aid declared incompatible by the Sernam 2 Decision had not been transferred to Financière Sernam. Secondly, it highlights contradictory passages of the contested decision as to the exact parameters of the subject matter of the transfer, including ‘Sernam “in its entirety” (assets and liabilities)’ in point 3.2.3.2 and recital 113 thereof, ‘[Sernam’s] assets and liabilities in their entirety … apart from the following exceptions’ in recital 114 of the same decision, ‘the bulk of [the] assets and liabilities’ in recital 115 of the contested decision, and ‘[Sernam] in its entirety (assets and liabilities), barring a few exceptions’ in recital 116 of the contested decision.
The Commission stated the following in recitals 114 and 115 of the contested decision:
‘Financière Sernam, through its acquisition of Sernam Xpress, acquires [Sernam’s] assets and liabilities in their entirety …, apart from the following exceptions: on the one hand, the assets were boosted by the injections of EUR 57 million in favour of [Sernam] and EUR 2 million in favour of Sernam Xpress … and, on the other hand, the liabilities were reduced by the amount of the equity loan contracted by the company [Sernam] with the SNCF group, [of the] liability relating to the cancellation of the “IBM-GPS” contract, and the amount of the obligation to repay the incompatible aid amounting to EUR 41 million.
However, these marginal adjustments cannot hide the fact that the bulk of [Sernam’s] assets and liabilities were indeed transferred first to Sernam Xpress and then to Financière Sernam.’
The Commission went on to conclude, in recital 116 of the contested decision, that ‘the transfer of the business [was] not therefore a sale of assets, but a sale of [Sernam] in its entirety (assets and liabilities), barring a few exceptions’ and that ‘consequently, and for this reason too, the conditions set out in Article 3(2) of the Sernam 2 Decision [had not been] observed’.
Firstly, it should be observed that the applicant does not dispute that, as part of the contribution, it added almost all of Sernam’s liabilities to its assets, with the exception of certain financial liabilities (representing a total amount of EUR 38.5 million) and the obligation to repay the EUR 41 million in aid declared unlawful and incompatible by the Sernam 2 Decision.
This is also apparent from the case file as a whole. The memorandum of understanding of 21 July 2005 provided that Sernam was to contribute to Sernam Xpress ‘Sernam’s assets and liabilities in their entirety excluding [the financial liabilities]’. It is also apparent from the agreement on the partial contribution of assets dated 14 September 2005 that inter alia the following were added (most important liabilities): consistent negative acquisition spread (badwill) (negative value of business), provisions for interim losses, operating debts, miscellaneous debts and holding-related debt. Assent 2005-AC 2 of 22 July 2005 of the Commission des participations et des transferts (Commission on holdings and transfers) on the applicant’s transfer of Sernam’s assets to the private sector also refers to the fact that the applicant decided to make the ‘transfer en bloc of [Sernam’s] assets and operating liabilities’. Moreover, the report by Bank X states clearly that ‘in practice, the transferred company will comprise all of the assets and operating liabilities of [Sernam] (including all subsidiaries and the brand), excluding the financial liabilities’.
Secondly, contrary to the applicant’s assertions, the exclusion from the contribution of the financial liabilities and the obligation to repay the EUR 41 million in unlawful and incompatible aid is not such as to cast doubt on the correctness of the conclusion that Article 3(2) of the Sernam 2 Decision was not observed, since it is clear from paragraph 118 above that the mere fact of not having confined itself to selling only Sernam’s assets and having added most of the liabilities was sufficient to establish non-compliance with that provision. The few variations in drafting in recitals 114, 115 or 116 of the contested decision, highlighted by the applicant, remain coherent and do not affect the validity of the contested decision.
The Commission therefore made no error of law or fact as to the subject matter of the operation in stating, in recital 116 of the contested decision, that the transfer of activities did not constitute a sale of the assets, but rather a transfer of Sernam in its entirety (assets and liabilities), barring a few exceptions.
The third argument must therefore be rejected.
It follows from the foregoing that the applicant’s first complaint must be rejected.
The second complaint: the Commission found, incorrectly, in recitals 108 to 112 and 124 of the contested decision, that the transfer consisted in an intra-group transfer en bloc of assets and liabilities, followed by a sale of shares (share deal) in the recipient subsidiary
By its numerous arguments, also put forward under the second part (see paragraph 95 above), the applicant aims to establish, in essence, that the Commission’s breaking-down of the sale en bloc of Sernam’s assets in two stages (the contribution by Sernam to Sernam Xpress, followed by a transfer of the shares in Sernam Xpress to Financière Sernam) is artificial and does not correspond to the reality of there being a single transaction, completely simultaneous and indissociable, effected in a ‘rational instant’ and pursuing one and the same objective, namely the transfer en bloc of ownership of Sernam’s assets to Financière Sernam. It observes in that regard that a partial contribution of assets followed by a transfer of shares in the recipient company constitutes a ‘sale’ under French law.
It should be noted that those arguments are ineffective, as it is evident from the analysis of the first complaint that, even if the operation effected is viewed, as advocated by the applicant, as a single sale operation, the final ‘result’ of those two stages does not in any event correspond to a sale of the assets alone; nor has the subject matter of the sale been observed, a point correctly made by the Commission in recitals 103 and 113 to 116 of the contested decision.
In any event, it should be noted that the Commission did not err in its analysis in finding that the two operations did not comply with the conditions laid down in Article 3(2) of the Sernam 2 Decision, irrespective of whether they are analysed separately, as in recitals 108 to 112 of the contested decision, or as a whole, as in recitals 113 to 116 of the contested decision.
It is appropriate to consider whether the effect of the various transfer operations were as expected, that being the actual transfer, by 30 June 2005, of the assets en bloc of Sernam at market price to a company having no legal links to the applicant, through a transparent and open procedure. A reading of the contested decision shows that the Commission correctly assessed the stages of the sale in the light of their effects, separately and combined.
It is apparent from an analysis of the first complaint that the Commission found correctly, in recitals 109 and 110 of the contested decision, that the operation allegedly involving ‘a ‘“partial contribution of assets’” (in reality of assets and liabilities) … could not be termed a “sale of assets to a third party”‘ inter alia because it related ‘not only to the assets, but also to the entire liabilities, with the exception of certain debts of [Sernam] to its parent company, [the applicant]. It was therefore a transfer of [Sernam] in its entirety (assets and liabilities) and not a sale of the assets only’ and that ‘this transfer was made to a wholly-owned subsidiary, i.e. Sernam Xpress, … [and] therefore this contribution was not made to a third-party undertaking independent of [the applicant]’.
The Commission was also correct in finding, in recitals 108 and 111 of the contested decision, that the shares in Sernam Xpress had been sold to Financière Sernam, which constituted a ‘share deal’.
It was in fact a sale of shares or, more specifically, of shares in a shell company, Sernam Xpress, to which all the assets and operating liabilities of Sernam, amounting to the quasi-entirety of Sernam, had been transferred beforehand.
Consequently, the Commission did not err in recital 111 of the contested decision in finding that nor did that sale of shares constitute a sale of the assets to a third party.
Therefore, the Commission made no error of fact or of law and analysed correctly, in the contested decision, the economic effects of the transaction as a whole and of its constituent parts, in order to ascertain whether the conditions of compatibility laid down by Article 3(2) of the Sernam 2 Decision had been observed.
In the light of the foregoing, the second complaint must also be rejected.
The third part of the fourth plea must therefore be rejected.
The fourth part: error of law on the part of the Commission in its finding, in recital 117 of the contested decision, that the transfer was not limited to Sernam’s assets, but had been increased by EUR 57 million net
The applicant criticises the Commission for having found, in recital 117 of the contested decision, that the amount of EUR 57 million net had been added to Sernam’s assets. It submits, firstly, that in so doing the Commission confuses the subject matter of the sale (assets) and the price paid for them and that the negative price of EUR 57 million net is a market price resulting from an open, transparent, unconditional and non-discriminatory tendering procedure, confirmed by several independent expert reports. Secondly, it submits that, knowing full well as it did that Sernam was running at a loss, the Commission ought to have specified in the Sernam 2 Decision that it was prohibiting a transfer at a negative price.
In recital 117 of the contested decision, the Commission found, in essence, that a net amount of EUR 57 million had been added to Sernam’s assets by the recapitalisations of Sernam and Sernam Xpress, and that such an addition to the assets had not been authorised by Article 3(2) of the Sernam 2 Decision.
Firstly, suffice it to observe that the Commission did not confuse the subject matter of the sale and its price. The amount of EUR 57 million net injected by the successive recapitalisations of Sernam and then Sernam Xpress was in fact an addition to the assets of Sernam and then Sernam Xpress.
Secondly, it is apparent from an examination of the third part that the applicant was incorrect in taking the view that the Commission ought to have specified that it did not want a negative price, given Sernam’s loss-making situation, since the negative price results from the fact that the obligation to sell only Sernam’s assets, without the liabilities, was not observed.
The applicant, in response to a question from the Court at the hearing, acknowledged that when an asset is sold individually, it has by definition a value which can be positive or nil but cannot be negative.
The Commission observes in that regard that, at the end of the first round of the tendering procedure, the candidates had been requested to provide a valuation of Sernam’s assets ‘cash free, debt free’ which had led to all the price proposals being positive.
That is not disputed by the applicant, who replies however that those preliminary, non-binding offers merely reflected a simple valuation technique and in no way meant that the business would be transferred cash free, debt free; rather, it meant simply that the candidates were being asked to highlight their assessment of the undertaking’s value, irrespective of the target company’s debt and cash levels, in order to afford an objective comparison of the offers submitted.
Consequently, as observed by the Commission, those positive ‘cash free, debt free’ valuations show that, had the applicant confined itself to selling the assets without the liabilities, their sale price would have been positive or nil, but not negative.
The fourth part of the fourth plea must therefore be rejected.
The fifth part: errors of law and of fact on the part of the Commission in its finding, in recitals 118 and 119 of the contested decision, that the sale of the assets en bloc of Sernam had not taken place through a transparent and open procedure
The applicant, supported by the French Republic, submits that the Commission made errors in recitals 118 and 119 of the contested decision. The applicant, supported by the French Republic, puts forward, in essence, four complaints and the French Republic one complaint.
Before addressing those complaints, it is appropriate to recall the wording of recitals 118 and 119 of the contested decision:
‘The French authorities at first organised a transparent and open procedure. However, at the end of this procedure, [the applicant] had not received any binding offer.
Following the failure of the transparent and open procedure, the contract concerning the various operations for the transfer of [Sernam’s] business was concluded with Financière Sernam. Since the latter did not participate as such and in an autonomous manner in the transparent and open procedure, the transfer of the business finally did not take place through a transparent and open procedure.’
The first complaint: the management team participated in the tendering procedure from the beginning
The applicant and the French Republic submit, in essence, that the offer from Sernam’s management team constituted the outcome of a transparent and open procedure, as the management team had participated in the tendering procedure from the beginning from within the consortium formed with candidate 5 and lodged only one offer which was initially submitted jointly with candidate5, after its partner had informed it on 15 June 2005 that it was unable to submit a firm offer by the time limit.
Firstly, it should be noted that it was the consortium made up of candidate5 and the management team which initially participated in the tendering procedure and submitted a preliminary offer, not its members individually.
Additionally, it was the content of the project as a whole proposed by the consortium led by candidate 5 which was initially selected ahead of that proposed by candidate 4, following the second round of the tendering procedure. The French authorities highlighted this point in their reply of 6 January 2012 to the Commission’s questions:
‘Regarding the proposal from [candidate 5], it was based on a number of important principles, namely inter alia that [the applicant] would take over Sernam’s cash requirements, estimated by [candidate 5] to be [significant amount], that it would not take over Sernam’s financial debts of ([EUR …], which, added to the takeover [significant amount] of cash requirements, gave a negative price of EUR ‑56.4 million) and a capital partnership with Sernam’s management team.
The request for prior recapitalisation on the part of [candidate 5] concerned lower amounts than those foreseeable from negotiations with [candidate 4]. [Candidate 4] had in fact implicitly referred to the need for prior recapitalisation of Sernam by [the applicant] in the amount of [more significant amount than candidate 5’s] which, added to the takeover of the financial debts, gave a negative price of EUR ‑65.2 million.
Consequently, the decision was taken by [the applicant] to continue discussions solely with [candidate 5] and Sernam’s management.’
Secondly, the management team’s firm offer was very dissimilar to the second-round offer made by the consortium led by candidate 5 — and much less favourable for the vendor.
It is apparent from the French authorities’ reply referred to in paragraph 164 above, and from the correspondence of 29 March and 7 April 2005 from the consortium (correspondence of 7 April reiterating the principal terms of its offer of 29 March and incorporating the amendments discussed since the offer was submitted), that the second-round offer from the consortium estimated the recapitalisation required from the applicant at that stage to be a significant amount, whereas the management team ultimately set them at a much higher amount, namely EUR 59 million (or EUR 57 million net) in its final offer. As observed by the Commission at the hearing, it is between this significant amount estimated in the second-round offer from the consortium led by candidate 5 and the much higher amount of EUR 57 million contained in the management team’s firm offer that the comparison must be drawn, as those two amounts correspond to the target’s recapitalisation as provisionally required from the applicant. In addition to those cash requirements, there was the write-off of debts, estimated to be fairly similar amounts in the second-round offer from the consortium and in the management team’s firm offer.
Consequently, the second-round negative offer from the consortium amounted at most, in April 2005 (without even taking into account the significant capital injection that candidate 5 was proposing to make by underwriting a capital increase), to approximately EUR ‑56.4 million (‘all-inclusive’ offer, comprising the recapitalisation and the write-off of debts by the applicant), whereas the management team’s offer amounted to approximately EUR ‑95.5 million, using identical perimeters (EUR 57 million net of recapitalisation, plus EUR 38.5 million of debt write-offs by the applicant).
It follows from the foregoing that the Commission was correct in not considering equivalent in terms of credibility and soundness the offer from a financial investor, candidate 5, who, moreover, was proposing to inject a significant amount of capital into Sernam, and the offer from 84 management and director employees financing a low amount, being EUR 2 million of the price, from their own resources.
Thirdly, the applicant and the French Republic observe that the requirement that a procedure be transparent and open does not cease once the best bidder has been selected and the other candidates have, by definition, been rejected, and that the discussions continue with the ‘last interested party’.
The ‘last interested person’ in the transparent and open tendering procedure in this case was candidate 4. As evidenced by paragraph 164 above, the management team’s firm offer, for EUR ‑95.5 million, was also less attractive for the vendor than the preliminary second-round offer from candidate 4, with its negative price of EUR ‑65.2 million, using identical perimeters (with recapitalisation and write-off of debts by the applicant). As observed by the Commission in its written pleadings, following candidate 5’s withdrawal, recourse should have been had to candidate 4, who had been part of the process since the beginning and had also indicated its interest at the end of the second round.
The offer from the management team cannot be considered that of the ‘last interested party’, since it did not participate independently in the transparent and open procedure.
Fourthly, the applicant submits that it is not relevant to compare the management team’s firm offer with the non-binding offer from the consortium of which it was a part, as only the firm offer is valid, even if it is not the best bid.
That argument must be rejected, since the question here is whether the management team’s firm offer was the result of the tendering procedure, which necessarily involves an examination of the non-binding offers submitted during the tendering procedure.
Therefore, the argument aimed at establishing that the management team participated from the beginning of the tendering procedure must be rejected because it did not participate independently and did not submit alone the offer it had initially submitted with candidate 5. Its offer cannot therefore be considered to result from a transparent and open procedure.
Consequently, the first complaint must be rejected.
The second complaint: the validity of the offer from Financière Sernam, even though it had not yet been created at the time the management team’s offer was submitted
The applicant states that the creation of a company after acceptance of the offer is a common practice in tendering procedures and that the natural persons making up the management team had their own legal existence, which was sufficient for the purpose of submitting an offer.
Those arguments are ineffective, as there is nothing in the contested decision indicating that the Commission found fault with Financière Sernam for not having had legal personality at the time of the tendering procedure, but rather the fact that the offer from the management team — and therefore Financière Sernam — was not the result of a transparent and open tendering procedure.
Consequently, the second complaint must be rejected.
The third complaint: all candidates had the opportunity to submit an offer, were treated equally and had access to the same information and benefited from identical conditions in terms of time limits
The applicant, supported by the French Republic, submits that it follows from the Commission’s decision-making practice and the case-law that the open and transparent nature of a tendering procedure presupposes that all parties liable to be interested have had the opportunity to submit an offer and, in order to do so, have had access to the same information and benefited from identical conditions in terms of time limits, which was the situation in the present case.
That argument, which is based on the principle of equal treatment of participants, must be rejected, as the management team’s offer was not part of that tendering procedure.
The third complaint must therefore be rejected.
The fourth complaint: according to the case-law, the fact that a sale of assets has been preceded by unsuccessful attempts with another company, as in the present case, is ‘reason to suggest that the procedure followed was sufficiently open and transparent’
The applicant submits that, in the SMI judgment, cited in paragraph
above (
EU:C:2004:238
), and the CDA judgment, cited in paragraph
above (
EU:T:2005:364
), the fact that a sale of assets was preceded by unsuccessful attempts with another company was ‘reason to suggest that the procedure followed was sufficiently open and transparent’ (the SMI judgment, cited in paragraph
above,
EU:C:2004:238
, paragraph
, and the CDA judgment, cited in paragraph
above,
EU:T:2005:364
, paragraph
). It takes the view that this is also the situation in the present case, since the sale to the management team was preceded by unsuccessful attempts with the consortium formed with candidate 5.
It should be noted that although in some scenarios such circumstances may provide reason to suggest that the procedure followed was sufficiently open and transparent, that is not conclusive proof. In this case the Commission could not confine itself to accepting the mere possibility of there being such reason in ascertaining whether the requirement of a transparent and open procedure, imposed explicitly by Article 3(2) of the Sernam 2 Decision, was met. It is, moreover, apparent from the analysis of the first complaint in paragraphs 162 to 175 above that this condition was not observed.
The fourth complaint in law must therefore be rejected.
The French Republic’s complaint: the negative price of EUR 57 million was affirmed as a market price by the expert reports submitted
The French Republic submits that the negative price of EUR 57 million was confirmed by the expert reports submitted, the value of which is recognised by the case-law for determining whether a sale was effected under normal market conditions.
That complaint must be dismissed as ineffective, since here it is a question of ascertaining compliance with Article 3(2) of the Sernam 2 Decision, which required a transparent and open procedure, and not of examining a price appraisal in an expert report.
Having regard to the foregoing, the fifth part of the first plea must be rejected.
The sixth part: errors of law and of fact on the part of the Commission in its finding, in recitals 121 to 123 of the contested decision, that the purpose of a sale of the assets had not been observed
The applicant puts forward, in essence, two complaints. By its first complaint, the applicant submits that the purpose of Article 3(2) of the Sernam 2 Decision was observed because Sernam’s activity was interrupted. By its second complaint, it submits that the concept of sale of the assets en bloc in reality allowed the activity to be continued.
The first complaint: the purpose of the sale of the assets en bloc was observed, because Sernam’s economic activity was interrupted
It is apparent from recitals 121 and 122 of the contested decision that the Commission found that the purpose of a sale of the assets, as provided for in recital 217 of the Sernam 2 Decision, was to cede market shares and the assets of Sernam, and to allow a third party to make use of those assets and that, consequently, the sale of the assets was aimed at interrupting Sernam’s economic activity. In recital 123 of the contested decision, the Commission found that, in the present case, Sernam had been acquired in its entirety by its management, regrouped in the future Financière Sernam, and that the economic continuity was total. It further found that the undertaking was released from a significant part of its debt and had received fresh capital amounting to EUR 59 million, EUR 57 million of which remained the economic responsibility of the applicant. The Commission concluded that not only did the operation put in place not comply with the conditions laid down in Article 3(2) of the Sernam 2 Decision, nor did it enable achievement of the objectives pursued by that decision; on the contrary, it led to a strengthening of the economic entity, which was liable to exacerbate the distortions of competition that the measures imposed by the Sernam 2 Decision were aimed precisely at attenuating.
Before examining the applicant’s various arguments in paragraphs 196 to 211 below, the Court finds it appropriate to consider the purpose of Article 3(2) of the Sernam 2 Decision, read in the light of its statement of reasons.
It is apparent inter alia from recitals 200 and 208 to 211 of the Sernam 2 Decision, which are found in a section entitled ‘Preventing distortion of competition — Specific compensatory measures’, that the Commission considered, first of all, that it was desirable that measures be taken to attenuate the unfavourable consequences of aid for competitors as much as possible, of the EUR 503 million in aid granted to Sernam, that the limitation or forced reduction of Sernam’s presence on the market or markets concerned in which the company operates was a compensatory measure for the benefit of its competitors and that compensatory measures could take different forms, depending on whether or not the company was operating in a market with overcapacity. Moreover, taking account of the misuse of the aid established in that decision, and the extension of the period of the restructuring plan, the Commission took the view that Sernam should take a specific compensatory measure by permanently withdrawing from market segments with overcapacity, in this case the market segments of groupage and traditional mail carried by road, so as to warrant approval of part of the restructuring aid. The Commission observed that the immediate consequence of granting State aid in markets with structural overcapacity or in decline is that a company that would have had to give up its business on account of the stated difficulties would be enabled artificially to occupy market shares for which there was a very strong demand, to the detriment of financially sound competing companies.
Those reasons provide a solid basis for the conditions imposed in Article 3(1) of the Sernam 2 Decision, namely the takeover of Sernam’s road transport activities by other undertakings and the diversification of Sernam’s activities towards rail freight, the purpose of which was to eliminate Sernam’s presence on a market with overcapacity in order to prevent distortions of competition associated with the granting of the EUR 503 million in restructuring aid.
It is apparent from recital 217 of the Sernam 2 Decision, which is part of the same section covering prevention of distortions of competition as the abovementioned recitals 200 and 208 to 211, that if Sernam were to sell its assets ‘en bloc’, the two abovementioned conditions, relating to the restructuring of the company, ‘[would] not apply as Sernam [would] no longer operate in its current legal form and [would] cede its market shares to the independent acquiring party (which [would] de facto continue its activities with Sernam’s assets)’.
As observed by the Commission at the hearing, the two paragraphs of Article 3 of the Sernam 2 Decision, which are set out as alternatives, made the restructuring aid of EUR 503 million conditional and pursued the same objective of preventing distortions of competition brought about by that aid. The fact that, if there were to be a sale of the assets en bloc, it would no longer be necessary to impose withdrawal from the road sector with overcapacity, can only be explained by the fact that, in the event of a sale en bloc of Sernam’s assets at market price to a company having no legal link with the applicant, through a transparent and open procedure, Sernam disappeared economically from the market, taking with it the distortion of competition associated with the granting of Sernam’s restructuring aid. Consequently, the ‘[the ceding of] market shares to the independent acquiring party’ as referred to in recital 217 of the Sernam 2 Decision, must be viewed as putting an end to the distortion of competition, that is to say, Sernam’s subsidised activity.
It follows from the foregoing that the Commission was correct in finding in paragraph 122 of the contested decision that the purpose of the sale en bloc of Sernam’s assets was to interrupt Sernam’s economic activity.
Firstly, the applicant, supported by the French Republic, submits that Sernam’s activity was interrupted, as all of its assets were transferred together and at the same time to a single purchaser, and that Sernam was not purchased in its entirety, as it demonstrated in the third part.
An examination of the third part of the fourth plea (see paragraphs 134 to 137 above) shows, however, that the applicant did not confine itself to transferring all of its assets together to a single purchaser, but also transferred the quasi-entirety of its liabilities, contrary to Article 3(2) of the Sernam 2 Decision. The argument that it did not transfer exactly Sernam in its entirety was already dismissed in paragraphs 136 and 137 above.
Secondly, the applicant submits that Sernam no longer operated under the legal form it had prior to the transfer, as it was Financière Sernam which was pursuing Sernam’s activities using the transferred assets.
It is clear, however, from the purpose of the sale of the assets en bloc imposed by the Sernam 2 Decision, which was aimed at effecting the economic elimination of a loss-making company from the market, that the mere change in Sernam’s legal name was not sufficient to achieve actual interruption of its economic activity.
Thirdly, the applicant observes that it had no legal link with the management team, and therefore Financière Sernam, and that, consequently, the takeover of Sernam by its management is not a sign of economic continuity.
As that factor is referred to in recital 123 of the contested decision solely for the sake of completeness in relation to the fact that Sernam was acquired in its entirety, such arguments are ineffective.
In any event, it should be noted that on 30 June 2005, the managers of Sernam who had made the offer had not yet resigned from their posts of President and CEO and Chief Operating Officer of Sernam (Article 4 of the memorandum of understanding of 21 July 2005 stated that they would resign on the date of completion of the operation) and were therefore still part of the applicant’s group.
Fourthly, the applicant submits that Sernam’s market shares were ceded to Financière Sernam, who could continue the activity with Sernam’s assets.
However, it is apparent from the file that the purpose of the transaction put in place by the applicant was to cede Sernam in its entirety in order to keep it operational and restore its viability, as opposed to interrupting its economic activity and ceding its market shares to the purchaser of its assets.
Firstly, the applicant’s communique advising of the tendering procedure of 29 November 2004 stated that the applicant had launched the process for selecting a purchaser capable ‘of ensuring the sustainability of Sernam’s activities’ and that the applicant would be particularly attentive ‘to the sustainability of Sernam’s activities [and] safeguarding employment’. Similarly, the report of 21 July 2005 submitted by Bank X to the Commission des participations et des transferts stated that ‘the operation envisaged [was] the takeover of the company’, and ‘of the Sernam group’.
Secondly, the abovementioned Assent 2005-AC 2 of 22 July 2005 of the Commission des participations et des transferts highlighted the fact that ‘the funds made available to the new company [were] intended to enable it to finance the needs relating to its restructuring in order to afford a return to balanced operation’ and that ‘the new Sernam [would] have just barely the resources that would enable the undertaking, completely independent of [the applicant], to get through the first fiscal years, which would be difficult, in order to return to a normal operating situation, either alone or with the help of investors’.
Thirdly, it is apparent from the file as a whole, particularly the report by Bank X and the firm takeover offer submitted by the management team, that two key parameters of the takeover offer were Sernam’s cash requirement in order to finance its recovery plan and the recapitalisation which was necessary in the light of the estimated losses on the period which was to come from 2005 to 2008 and that the negative price of EUR 59 million was the result, in an extremely high amount, of financing needs associated with the restructuring of Sernam and, in a moderate amount, of financing needs for the costs of implementing the reductions in staff provided for in the business plan above and beyond the amounts to be paid thereunder pursuant to the applicable legislation and collective agreement. The report by Bank X states in that regard that ‘the management team’s proposal … is accompanied, in the present case, by a recapitalisation deemed to be indispensable by the management team in order to implement its recovery plan and give it the necessary confidence to formulate its firm takeover offer, being [EUR 59 million]’.
Fourthly, it is apparent from the analysis of the third and fourth parts above that the Commission was correct in stating in recital 123 of the contested decision that, moreover, the undertaking found itself released from part of its debt (in fact the financial debts were not added to the contribution) and had received fresh capital in the amount of EUR 59 million, EUR 57 million of which remained the responsibility of the applicant.
Fifthly, it should also be observed that the Sernam 2 Decision provided that, in the event of Sernam remaining on the market, either within the applicant’s group or through the sale of Sernam in its entirety (assets and liabilities), the conditions set out in Article 3(1) were to apply and that, in that case, Sernam ought to have withdrawn from the market with overcapacity in road transport. Yet the applicant has not stated that the conditions set out in Article 3(1) were implemented, even though the quasi-entirety of Sernam was sold.
It is apparent from the foregoing that the applicant is incorrect in stating that Sernam’s economic activity was interrupted, because in reality it was the quasi-entirety of Sernam (assets and liabilities) that was transferred and maintained in activity on the market where there was a strong need for recapitalisation in order to finance a new recovery plan, and that the operation implemented did not enable achievement of the objectives pursued by the Sernam 2 Decision, which was to prevent the distortions of competition associated with the restructuring aid approved by the Sernam 2 Decision, but on the contrary led to a worsening of those distortions, by propping up the economic entity which was the recipient of that aid, particularly in markets with overcapacity.
Therefore, the first complaint must be rejected.
The second complaint: the concept of ‘sale of the assets en bloc’ in reality allowed Sernam to continue its activity
The applicant considers in essence that, had the Commission’s intention at the time of the Sernam 2 Decision been to dismantle Sernam, the Commission ought to have planned for another operation than a sale of assets en bloc, which is in reality much the same thing — from both a legal and economic standpoint — as the pursuance of Sernam’s activity. Consequently and in that light, the Commission cannot criticise there being a certain form of continuity of economic activity between Sernam and Financière Sernam.
As a preliminary point, it should be borne in mind that, if the applicant is attempting, through this line of argument, to cast doubt on the wording and relevance of Article 3(2) of the Sernam 2 Decision, its arguments must be rejected, since the Sernam 2 Decision is not being challenged here, having become definitive. Consequently, it is not possible to examine the legality of that decision in the context of the present proceedings and the allegations of errors in the wording of the Sernam 2 Decision are inadmissible.
In so far as those arguments are aimed at demonstrating that the Sernam 2 Decision authorised the applicant to structure the sale of the assets en bloc operation as it did, on the ground that the transfer of assets en bloc is in reality much the same thing — from both a legal and economic standpoint — as the pursuance of Sernam’s activity, it should be noted that they run directly counter to the applicant’s preceding arguments, to the effect that Sernam’s economic activity was indeed interrupted by the operation.
In the first place, the applicant submits that it is apparent from paragraphs 68 to 70 of the SMI judgment, cited in paragraph
above (
EU:C:2004:238
), and paragraph 73 of the CDA judgment, cited in paragraph
above (
EU:T:2005:364
), that the transfer of assets en bloc is in reality much the same thing — from both a legal and economic standpoint — as the pursuance of Sernam’s activity, as opposed to the concept of transfer of the assets separately, which involves a cessation of all or part of the activity.
Firstly, that argument is ineffective, as it is apparent from the examination of the third part that, in reality, it was Sernam in its entirety that was transferred, and not only its assets.
Secondly, the points put forward by the applicant concern the arguments pleaded by the Commission before the EU Courts in specific cases, not a general assessment by the EU Courts of the concept of sale of the assets en bloc. The decision contested here, by contrast, falls to be examined in the light of the Treaty and the Sernam 2 Decision, not arguments elaborated on by the Commission in proceedings involving other cases.
It was held in paragraph 122 above that there was no contrast between ‘sale of the assets en bloc’ and ‘sale of the assets separately’ in the Sernam 2 Decision and that that decision was sufficiently clear about the fact that the liabilities should not be sold if the scenario involving the sale of the assets en bloc was opted for. Moreover, according to recital 217 of the Sernam 2 Decision in fine, the purchaser of the assets en bloc of Sernam could de facto continue its own activities with Sernam’s assets. Although that may give the appearance of continuance of the economic activity of the undertaking which is the recipient of the restructuring aid which has been declared compatible by the Sernam 2 Decision, it must be noted that the activity had to involve a completely different player than Sernam, namely the purchaser, integrating Sernam’s assets into its own business strategy, without which the recipient’s market shares cannot be regarded as having been ‘ceded’.
Thirdly, it is apparent from the paragraphs referred to by the applicant (the SMI judgment, cited in paragraph
above,
EU:C:2004:238
, paragraphs
to
, and the CDA judgment, cited in paragraph
above,
EU:T:2005:364
, paragraph
), concerning questions of circumventing the obligation to repay State aid, that, although the Commission stated there that ‘major problems arise, on the other hand, where the assets have been sold “en bloc” so as to allow the buyer to continue the beneficiary company’s activity [and that in] these circumstances, continuing the subsidised activity could perpetuate the distortion of competition with the result that particular caution is needed in order to prevent the transfer of the beneficiary company’s assets allowing the repayment obligation to be evaded by “protecting” those assets’, it observed that, in such a case, ‘evasion can be ruled out only where, in addition to taking place at the market price, the transfer of the beneficiary company’s assets “en bloc” is made as part of an unconditional procedure that is open to all the company’s competitors [and that only] in this case are the buyers not required to repay the aid’ (the
SMI
judgment, cited in paragraph 52 above,
EU:C:2004:238
, paragraph
, and the CDA judgment, cited in paragraph
above,
EU:T:2005:364
, paragraph
).
Article 3(2) of the Sernam 2 Decision provided for precisely that: a market price through a transparent and open procedure. Yet it is apparent from the analysis of the fifth part that nor was that requirement observed in the present case, either.
In the second place, the applicant submits that, had the Commission’s objective been to interrupt Sernam’s activity, it ought to have specified that it wanted a transfer of the tangible assets alone, except for the business, thus allowing for continuity of economic activity.
Firstly, it is clear that recital 217 of the Sernam 2 Decision draws no distinction between tangible and intangible assets. Moreover, the contested decision does not criticise the applicant for having added the intangible assets, including the business, but the liabilities.
Secondly, if the applicant is seeking, through the argument referred to in paragraph 221 above, to allude to the negative acquisition spread or badwill relating to the negative value of the business, it is apparent from paragraphs 139 and 140 of the French authorities’ observations on the opening decision that that badwill is defined as the spread there may be between the acquisition price paid in cash or in shares and the value of the eligible assets and liabilities acquired, taken individually. The French authorities emphasise that the badwill was not determined independently and that it is in fact the consequence, as entered in the accounts, of the negative market value of EUR 57 million net resulting from the tendering procedure and that the amount appeared subsequently in the light of the price given by the market for Sernam’s ‘assets’, which price itself was determined by the sole firm offer received. The French authorities go on to state that the badwill is therefore the reflection of the purchaser’s expectations of the future losses and restructuring costs, which the report from [Bank X] explains when stating that two key factors in establishing correctly the parameters of a takeover offer are the company’s cash requirement in order to finance its recovery plan and the recapitalisation required in the light of the estimated losses for the period [from] 2005 to 2008 (page 47 of the report)’.
Consequently, it is apparent from the case file that what the applicant refers to as the ‘business’ does not refer to an intangible asset, but in reality corresponds to an expression, in accounting terms, of the management team’s recapitalisation demands, due largely to the fact that a loss-making undertaking, with its liabilities, was transferred.
In the third place, the applicant submits that, in reality, the Commission ought to have intended to limit the transfer en bloc of Sernam’s assets to industrial purchasers; this was not stated in the Sernam 2 Decision, however.
However, there is nothing in the contested decision indicating that the fact that the purchaser is not an industrial player in the sector was the reason for finding non-compliance with Article 3(2) of the Sernam 2 Decision. That finding is based principally on the fact that it was Sernam in its entirety that was transferred, although the conditions set out in Article 3(1) of the Sernam 2 Decision, including the requirement of withdrawal from the sector with overcapacity, were not observed.
Therefore, the second complaint must also be rejected.
Having regard to the foregoing, the sixth part of the fourth plea must be rejected.
Conclusions on the fourth plea
The applicant submits that a single error in the Commission’s reasoning about the infringement of Article 3(2) of the Sernam 2 Decision can lead to only one result: annulment of the contested decision.
It is settled case-law that, where some of the grounds in a decision on their own provide a sufficient legal basis for the decision, any errors in the other grounds of the decision have no effect on its operative part. Moreover, where the enacting terms of a Commission decision are based on several pillars of reasoning, each of which would in itself be sufficient to justify those terms, that decision should, in principle, be annulled only if each of those pillars is vitiated by an illegality. In such a case, an error or other illegality which affects only one of the pillars of reasoning cannot be sufficient to justify annulment of the decision at issue because that error could not have had a decisive effect on the enacting terms adopted by the Commission (see judgment of 20 October 2011 in Eridania Sadam v Commission,
T‑579/08
,
EU:T:2011:608
, paragraphs
and
and the case-law cited).
In the present case, contrary to the applicant’s assertions, as the finding of non-compliance with Article 3(2) of the Sernam 2 Decision and, consequently, of incompatibility of EUR 503 million in State aid was based, in the contested decision, on several factors, each of which would in itself be sufficient to justify that finding, the fact that one of those factors — in the present case, the one relating to the categorisation as a sale, as indicated in paragraph 108 above — is incorrect is not sufficient in itself for the contested decision to be annulled in respect of the finding of misuse of the EUR 503 million in State aid approved conditionally by the Commission in the Sernam 2 Decision.
The fourth plea must therefore be rejected in its entirety.
2.
The fifth plea: error of law on the part of Commission in its finding that the obligation to recover the EUR 41 million in State aid declared incompatible by the Sernam 2 Decision had been transferred to Financière Sernam and its subsidiaries
The applicant submits in essence that, according to settled case-law, the entry under the liabilities of the liquidation account of Sernam of the EUR 41 million in State aid declared incompatible by the Sernam 2 Decision was sufficient to eliminate the distortion of competition arising from that aid and, in that regard, it disputes that the obligation to repay that aid was transferred to Financière Sernam and its subsidiaries. It states, first, that none of the criteria of economic continuity within the meaning of the Seleco judgment, cited in paragraph
above (
EU:C:2003:252
) is met in the present case, contrary to what the Commission states in recitals 144 to 148 of the contested decision. It states, second, that the entry of the EUR 41 million under the liabilities of the liquidation account of Sernam was in accordance with Article 4 of the Sernam 2 Decision.
As a preliminary point, as the Court has ruled on numerous occasions, that entry of the liability relating to the repayment of the aid in question in the schedule of liabilities can meet the recovery obligation only if, where the State authorities are unable to recover the full amount of aid, the insolvency proceedings result in the winding-up of the undertaking which received the unlawful aid, that is to say, in the definitive cessation of its activities. It is important to bear in mind, in that regard, that the purpose underlying the recovery of aid declared incompatible with the common market is to remove the distortion of competition caused by the competitive advantage which the recipient of the aid has enjoyed in the market as compared with its competitors, thereby restoring the situation which existed before the aid was paid. However, where the undertaking which received the unlawful aid is insolvent and a company has been created to continue some of the activities of the insolvent undertaking, the pursuit of those activities may, where the aid concerned is not recovered in its entirety, prolong the distortion of competition brought about by the competitive advantage which that company enjoyed in the market as compared with its competitors. Accordingly, such a newly created company may, if it retains that advantage, be required to repay the aid in question. That is inter alia the case where it is established that that company continues genuinely to derive a competitive advantage because of the receipt of that aid, especially where it acquires the assets of the company in liquidation without paying the market price in return or where it is established that the effect of that company’s creation is circumvention of the obligation to repay the aid. That applies, in particular, if the payment of a market price is not sufficient to cancel out the competitive advantage linked to receipt of the unlawful aid. In such a case, the registration in the schedule of liabilities of the liability relating to the aid declared unlawful and incompatible with the common market is not sufficient, on its own, to make the distortion of competition thus created disappear (see judgments of 11 December 2012 in Commission v Spain,
C‑610/10
, ECR,
EU:C:2012:781
, paragraphs
to
and the case-law cited, and 24 January 2013 in Commission v Spain,
C‑529/09
, ECR,
EU:C:2013:31
, paragraphs
and
and the case-law cited).
According to the case-law on sales of assets, in order to determine whether the obligation to recover aid paid to a company in difficulty can be extended to a new company to which the former company has transferred certain assets, where that transfer gives rise to the conclusion that there was financial continuity between the two companies, the following elements may be taken into consideration: the purpose of the transfer (assets and liabilities, continuity of the workforce, bundled assets), the transfer price, the identity of the shareholders or owners of the acquiring undertaking and of the original undertaking, the moment at which the transfer was carried out (after the start of the investigation, the initiation of the procedure or the final decision) and, lastly, the economic logic of the transaction (see, to that effect, the Seleco judgment, cited in paragraph
above,
EU:C:2003:252
, paragraph
; judgments of 13 September 2010 in Greece and Others v Commission,
T‑415/05, T‑416/05 and T‑423/05
, ECR,
EU:T:2010:386
, paragraph
, and 28 March 2012 in Ryanair v Commission,
T‑123/09
, ECR,
EU:T:2012:164
, paragraph
). The Commission is not, however, required to take all of those factors into account (see, to that effect, judgment in Ryanair v Commission,
EU:T:2012:164
, paragraph
).
It should be noted that the parties do not dispute that method of analysing economic continuity, but rather its application to the present case by the Commission.
The first complaint: none of the criteria of economic continuity is met in the present case
The applicant submits that none of the criteria of economic continuity within the meaning of the Seleco judgment, cited in paragraph
above (
EU:C:2003:252
), namely the subject matter of the transfer, the transfer price, the identity of the shareholders or owners of the acquiring undertaking and of the original undertaking, the moment at which the transfer was carried out, or the economic logic of the transaction, is met in the present case, contrary to the Commission’s analysis set out in recitals 144 to 148 of the contested decision.
Recital 144 of the contested decision reads as follows:
‘As regards firstly the transfer of all the assets and liabilities, with the exception of the three financial liabilities … from [Sernam] to Sernam Xpress, the Commission points out that this transfer covered the undertaking in its entirety (see section 3.2.3). There is therefore economic continuity between [Sernam] and Sernam Xpress. … In addition, the transfer took place within a group. It took place after a final decision by the Commission ordering the recovery of the aid and its only economic logic is to allow the continuation of [Sernam’s] activities, without having to comply with the conditions imposed by Article 3 of the Sernam 2 Decision. All the criteria evidencing economic continuity within the meaning of the decision and the Seleco judgment are therefore met.’
Subject matter of the transfer
The applicant submits that it was not Sernam in its entirety that was sold to Financière Sernam.
It is apparent from the third part of the fourth plea, however, and inter alia paragraphs 134 to 137 above, that the Commission was correct in finding, in recital 144 of the contested decision, that the undertaking in its entirety had been transferred, contrary to Article 3(2) of the Sernam 2 Decision.
Identity of the shareholders or owners of the acquiring undertaking and of the original undertaking
The applicant submits that the transfer of all of Sernam’s assets and liabilities did not take place within a group, contrary to what the Commission states in paragraph 144 of the contested decision, as the identity of the shareholders in Financière Sernam and that of the shareholder in Sernam are different, the shareholders in Financière Sernam being the former management team of Sernam, whereas Sernam’s shareholder was the applicant itself. The applicant states that it is Financière Sernam which ultimately holds ownership and uses the assets of Sernam, held in Sernam Xpress. In those circumstances, it takes the view that the criterion relating to the identity of the shareholders or owners of the acquiring undertaking and of the original undertaking within the meaning of the
Seleco
judgment, cited in paragraph 52 above, is not met.
That argument must be rejected, as, at that stage of the Commission’s reasoning, it is a question of assessing the economic continuity between Sernam and Sernam Xpress. It is only once economic continuity between Sernam and Sernam Xpress was established (in recitals 144 to 148 of the contested decision) that the Commission concluded that the benefit of the unlawful aid had ultimately been transferred to Financière Sernam (recital 150 of the contested decision) due to its merger with Sernam Xpress.
Consequently, the Commission was correct in finding, in recital 144 of the contested decision, that the contribution from Sernam to Sernam Xpress had taken place within the applicant’s group.
The moment at which the transfer was carried out
As to the moment at which the transfer of the assets en bloc was carried out, the applicant submits that, in the Seleco judgment, cited in paragraph
above (
EU:C:2003:252
), the SMI judgment, cited in paragraph
above (
EU:C:2004:238
), and the
CDA
judgment, cited in paragraph 52 above (
EU:T:2005:364
), the ‘circumvention’ operations alleged by the Commission had been effected either during the formal investigation procedure or at a moment when the national authorities were expecting the Commission to open an investigation procedure. In the present case, however, the transfer en bloc of Sernam’s assets took place after the adoption of the Sernam 2 Decision, by the time limit imposed by Article 3(2) therein and in accordance with the detailed rules provided for by that provision, which precludes its having been effected in order to circumvent the recovery of the aid.
Recital 144 of the contested decision indicates that the Commission observed that the transfer of all of the assets and liabilities had taken place after the final Sernam 2 Decision, Article 2 of which, it must be remembered, ordered recovery of the aid of EUR 41 million.
The moment of implementation of a decision involving the possibility of a sale of assets en bloc of the aid recipient, and also the obligation to recover unlawful and incompatible aid, seems at least as opportune for circumventing the recovery obligation as the phase involving the formal investigation procedure. Whilst the opening of a formal investigation under Article 108(2) TFEU comes about as a result of doubts surrounding the existence and compatibility of a State aid measure, the adoption of a decision ordering the recovery of State aid removes all doubt on the point.
In addition, it is apparent from the first, third, fourth and fifth parts of the fourth plea that the operation that was effected did not comply with either the time limit (see paragraphs 84 to 93 above) or the detailed rules (see paragraphs 110 to 187 above) set out in Article 3(2) of the Sernam 2 Decision.
The economic logic of the transaction
As regards the economic logic of the transaction, firstly, the applicant, supported by the French Republic, submits that it was required to opt out of a loss-making undertaking, as required by the Sernam 2 Decision.
Secondly, it states that the use of the shell company Sernam Xpress did not result from an intention to circumvent the obligation to repay aid, but rather was aimed solely at enabling Financière Sernam to acquire Sernam’s assets en bloc, given the need to ensure that the purchaser of the assets had no link with the applicant, as required by the Sernam 2 Decision. It relies in that regard on a legal opinion on French law, written by a professor of French law, in order to demonstrate that the so-called ‘partial contribution of assets’ was the only operation enabling the operating liabilities to be added to the assets without having to seek individual assent from the creditors (in order to benefit from the effect of complete transfer of property from that operation). The requirement that the purchaser be completely independent of the applicant prohibited a partial contribution of assets directly to Financière Sernam, without which the applicant would have become a shareholder in Financière Sernam, by way of remuneration for its contribution (remuneration in the form of shares). This is why it was necessary first to effect the partial contribution of assets to Sernam Xpress, then transfer its shares to Financière Sernam.
In recitals 144 and 147 of the contested decision, the Commission found that the only economic logic was to allow the continuation of Sernam’s activities without having to comply with the conditions imposed by Article 3 of the Sernam 2 Decision.
Firstly, it was held in paragraph 247 above that it was apparent from the analysis of the first, third, fourth and fifth parts of the fourth plea that the conditions laid down in Article 3 of the Sernam 2 Decision had not been observed. Similarly, it is apparent from the analysis of the sixth part of the fourth plea (see inter alia paragraphs 189 to 211 above) that since Sernam’s business activities were not interrupted, nor was the purpose of Article 3(2) of the Sernam 2 Decision observed.
Secondly, it is apparent from paragraphs 127 to 129 above that the applicant cannot argue that there are constraints under national law under which it must circumvent the conditions laid down in Article 3(2) of the Sernam 2 Decision. In particular, its line of argument as referred to in paragraph 249 above is based on the alleged necessity of bundling the liabilities with Sernam’s assets. Yet it is clear from paragraphs 113 to 119 above that the liabilities were not to be included in the sale of the assets en bloc within the meaning of Article 3(2) of the Sernam 2 Decision.
The transfer price
As regards the transfer price, firstly, the applicant, supported by the French Republic, submits that the negative price paid by Financière Sernam for Sernam’s assets en bloc was a market price resulting from a transparent and open tendering procedure, contrary to what the Commission states in recitals 145 and 146 of the contested decision. For the same reasons, the applicant considers that the reference in recital 145 of the contested decision to a contractual balance between it and Financière Sernam is entirely irrelevant. The applicant and the French Republic take the view that, consequently, no obligation of repayment can be imposed on either the recipient of the assets in question, that is, Sernam Xpress, or on its purchaser, in this case Financière Sernam; they argue that it was the vendor Sernam that should have been ordered to repay the aid.
Recital 145 of the contested decision reads as follows:
‘The Commission points out incidentally that the transfer to Sernam Xpress does not correspond to market conditions. The transfer to Sernam Xpress was made at a negative price and is not the result of a transparent and open procedure (see section 3.2.5 [of the contested decision]). To the negative price of EUR 57 million, which is perceived as operating aid enabling the losses of Sernam Xpress to be covered for the years from 2005 to 2008, is added the write-off of [Sernam’s] debts to [the applicant] amounting to EUR 38.5 million (see recital 27 [of the contested decision]). … Through the capital injection of EUR 57 million, [the applicant] enabled Sernam Xpress, at least for the period from 2005 to 2008, to honour these debts in their entirety. If, on the other hand, [the applicant] had sold only the assets at a positive price, the debts of [Sernam] in relation to third parties would have been honoured only up to the proceeds from the sale. This is an additional indicator that the contractual balance between [the applicant] and Financière Sernam does not correspond to market conditions.’
The argument that the negative price paid in the present case was a market price resulting from a transparent and open tendering procedure must be rejected, as it is clear from the analysis of the fifth part of the fourth plea that the management team’s offer cannot be said to be the result of a transparent and open procedure. For the same reasons, the criticism of the reference to the contractual balance between the applicant and Financière Sernam must also be rejected.
It is also apparent from paragraph 207 above that the management team’s takeover offer had been designed to finance a new recovery plan for Sernam and the recapitalisation needed to confront the estimated losses for the period to come between 2005 to 2008. Thus the Commission was also correct in stating in recital 145 of the contested decision that the negative price of EUR 57 million had been perceived as operating aid enabling the losses of Sernam Xpress to be covered for the years to come from 2005 to 2008, to which was added the write-off of Sernam’s debts to the applicant amounting to EUR 38.5 million.
Secondly, the applicant relies in a number of parts and pleas in its application on the fact that the negative price of EUR 57 million net was confirmed by several independent expert reports and refers in that regard to the report of 21 July 2005 drawn up by the audit branch of Bank X, its consulting bank which organised the tendering procedure, to the report of an auditing firm (‘auditing firm Y’) of 3 June 2005 (updated in 2008), sponsored by it, the report of 18 July 2005 of another bank, Bank Z, sponsored by the Commission des participations et des transferts, and to Assent 2005-AC 2 of 22 July 2005 of the Commission des participations et des transferts, which, in view of the concordance of the expert reports, concluded that the transfer plan appeared to be ‘the solution which, whilst ensuring not unreasonable chances of success for the new Sernam, provide[d] the lowest cost for the applicant’.
It should be remembered in that regard that the sale of the assets en bloc in accordance with Article 3(2) of the Sernam 2 Decision was to be effected at market price ‘through a transparent and open procedure’. Similarly, Article 4 of the Sernam 2 Decision provided that ‘any partial or full sale of Sernam [was to] be effected at market price and through a transparent procedure that is open to all its competitors’. The Commission had accordingly required in the Sernam 2 Decision that the market price be the result of a transparent and open tendering procedure, which was not observed in the present case (see paragraphs 160 to 187 above).
In any event, two of the reports in question, the report of the auditing firm Y and the report of Bank Z, concern solely the question of the application of the private investor test, that is to say, the comparison between the costs of the envisaged transfer and the costs of a potential liquidation of Sernam, and are therefore not relevant in relation to the question whether the price paid for Sernam’s assets and liabilities was a market price. Similarly, the passage referred to from the Assent of the Commission des participations et des transferts relates to the comparison between Sernam’s transfer costs and liquidation costs. Moreover, as regards the conclusions of the audit branch of Bank X of 21 July 2005, that is an expert report drawn up after the management team’s offer was lodged and on the basis of that offer (and also the business plan 2005-2008 drawn up by the management team).
The applicant is therefore incorrect in arguing that the expert reports provided confirm the idea that the transfer price was a market price.
Thirdly, the applicant criticises the Commission for having found, in the last two sentences of paragraph 145 of the contested decision, that if it had sold only the assets at a positive price, Sernam’s debts to third parties would have been honoured only up to the amount of the income from the sale. It states that, under national law, the sale of the assets en bloc required the transfer not only of the debts but also the employees under Article L 1224-1 of the Labour Code, no purchaser was liable to offer a positive price for the acquisition of those assets en bloc.
The applicant’s argument directed at the last two sentences of recital 145 of the contested decision must be rejected as ineffective. The statement criticised by the applicant was put forward by the Commission for the sake of completeness in relation to the other findings at the beginning of the same recital by way of ‘supplementary statement’ to the point that the contractual balance between the applicant and Financière Sernam did not correspond to market conditions. As it has been held that the Commission was correct in holding, at the beginning of recital 145 of the contested decision, that the negative price of the transfer to Sernam Xpress was not the result of a transparent and open procedure, the arguments directed at the last two sentences of that recital are not such as to afford annulment of the contested decision.
Fourthly, the applicant criticises the Commission for having found, in recital 146 of the contested decision, that the negative price of EUR 57 million was higher than the best offer received during the unsuccessful tendering procedure, which had been a negative price of EUR 56.4 million (second-round offer from candidate 5), and states in that regard that that second-round offer was not a binding offer and accordingly should not be taken into account.
It is apparent from paragraph 167 above that the Commission was correct in stating, in recital 146 of the contested decision, that the negative offer of EUR 57 million was less attractive than the second-round negative offer of EUR 56.4 million submitted by the consortium led by candidate 5. In that regard, the applicant’s arguments to the effect that the consortium’s expression of interest drawn up with candidate 5 should not be taken into account for comparative purposes as it was non-binding, unlike the management team’s offer, are ineffective, as it is clear from the analysis of the fifth part of the fourth plea that nor can the management team’s offer be taken into account, as it is not the result of a transparent and open tendering procedure.
It follows from the foregoing (see paragraphs 237 to 264 above) that the Commission was correct in concluding, in recital 148 of the contested decision, that the transfer of the activities from Sernam to Sernam Xpress had had the consequence that Sernam Xpress had continued to benefit from the competitive advantage linked with the receipt of the aid granted, as there was economic continuity between the two companies.
The French Republic further relies on the case-law on sales of shares, to the effect that where a company which has received State aid has been sold at the market price, that is to say at the highest price which a private investor acting under normal competitive conditions was ready to pay for those companies in the situation they were in, in particular after having received State aid, the aid element was assessed at the market price and included in the purchase price. In such circumstances, the purchaser cannot be regarded as having benefited from an advantage in relation to other market operators. Nevertheless, in principle, where a company which has received aid has been sold at the market price, the purchase price reflects the consequences of the previous aid, and it is the vendor of that company that keeps the benefit of the aid. In that case, the restoration of the previous situation must be assured, firstly, by the vendor’s repayment of the aid (see, to that effect, judgment of 20 September 2001 in Banks,
C‑390/98
, ECR,
EU:C:2001:456
, paragraphs
and
). The French Republic considers that to require the undertaking sold, being Sernam Xpress, to repay the unlawful and incompatible aid ultimately amounts to penalising the purchaser of that undertaking, being Financière Sernam, who, in paying the market price for that undertaking, has already paid for the unlawful and incompatible aid. In the French Republic’s submission, this amounts to having the purchaser of the shares in the undertaking sold pay twice for the unlawful and incompatible aid.
First of all, as is clear from recitals 138 and 149 and footnote No 32 of the contested decision, the case-law draws a distinction between the purchaser of the shares and the recipient company of unlawful aid whose shares are sold. According to settled case-law, the sale of shares in a company which has received unlawful aid by a shareholder to a third party has no bearing on the recovery obligation (see, to that effect, the Seleco judgment, cited in paragraph
above,
EU:C:2003:252
, paragraph
). If the undertaking to which unlawful State aid has been granted retains its legal personality and continues to carry out, for its own account, the activities subsidised by the State aid, it is normally this undertaking that retains the competitive advantage connected with that aid and it is therefore this undertaking that must be required to repay an amount equal to that aid. The purchaser cannot therefore be required to repay such aid (see, to that effect, the SMI judgment, cited in paragraph
above,
EU:C:2004:238
, paragraph
).
Consequently, the Commission was correct, in recital 149 of the contested decision, in inferring from that case-law that the sale of the shares in Sernam Xpress to Financière Sernam had not had the effect of releasing Sernam Xpress from the obligation to repay the EUR 41 million in aid.
The criticisms put forward by the French Republic and the applicant to the effect that such reasoning amounts to requiring the purchaser of the shares to pay twice for the unlawful and incompatible aid must be rejected. As observed by the Commission, that distinction between the purchaser of the shares and the company sold may have practical consequences because, in that case, barring special circumstances, the purchaser of the shares does not owe the aid granted to the purchased undertaking as long as it holds the purchased undertaking in the form of a limited liability company.
Moreover, contrary to what the French Republic suggests with its arguments, the obligation to repay the EUR 41 million in unlawful and incompatible aid was not transferred to Financière Sernam as purchaser of the shares in Sernam Xpress, but as its legal successor due to the merger of 30 June 2011 with Sernam Xpress because of the effect of the transfer of all assets and liabilities attached to that operation (see recital 150 of the contested decision). That reasoning must be confirmed, as the economic continuity between Sernam and Sernam Xpress was demonstrated to the requisite legal standard by the Commission (see paragraphs 237 to 265 above) and the applicant does not dispute the merger between Sernam Xpress and Financière Sernam.
Lastly, the French Republic submits that the private investor test is met in the present case because, as set out in its letters of 8 October 2008 and 5 May 2009, the cost of the sale of the assets en bloc of Sernam to Financière Sernam was lower than the costs the applicant would have borne in the event of judicial liquidation of Sernam.
It should be noted, however, that those arguments put forward by the French Republic relating to the private investor test are unrelated to the obligation to recover the EUR 41 million, but rather concern the categorisation of the so-called ‘new’ aid in the contested decision, in the light of Article 107(1) TFEU. Such arguments are therefore ineffective in the context of the present plea.
Consequently, under the case-law referred to in the judgment in Commission v Spain, cited in paragraph
above (
EU:C:2012:781
), the Commission was correct in finding in the present case that merely entering the aid declared unlawful and incompatible by the Sernam 2 Decision in the liabilities of the liquidation account was not sufficient to eliminate the distortion of competition caused by that aid.
The applicant’s first complaint must accordingly be dismissed.
The second complaint: the entry of EUR 41 million in the liabilities of the liquidation account of Sernam complied with Article 4 of the Sernam 2 Decision
The applicant submits that the entry in the liabilities of the liquidation account of Sernam in the amount of the aid declared unlawful and incompatible by the Sernam 2 Decision complied with Article 4 thereof, which provided that, in the event of partial or full sale of Sernam effected at market price and through a transparent procedure that was open to all its competitors, ‘the Sernam company [would], if it continue[d] to exist’, be responsible for paying back the EUR 41 million in aid. The applicant submits that Article 4 of the Sernam 2 Decision makes no reference to the interruption in Sernam’s economic activity and merely draws a distinction according to whether or not Sernam continues to exist.
In recital 135 of the contested decision, the Commission states that ‘Article 4 [of the Sernam 2 Decision] draws a distinction according to whether or not there has been an interruption of Sernam’s economic activity [and that in] the case of the disappearance of this activity, recovery [of the amount of the aid] is not necessary from the parties who have acquired the assets at market price through a transparent and open procedure’.
According to the case-law referred to in the judgment in Commission v Spain, cited in paragraph
above (
EU:C:2012:781
), the aid must be recovered from the company which carries on the economic activity of the undertaking which initially benefited from the advantage associated with the grant of State aid and which, therefore, retains the actual benefit thereof.
In a situation of recovery of State aid, the allusion made in Article 4 of the Sernam 2 Decision to the continued existence of Sernam could only be alluding to the continuation in Sernam’s economic activity.
Therefore, the applicant is wrong in stating that the entry of the EUR 41 million in the liabilities of the liquidation account of Sernam complied with Article 4 of the Sernam 2 Decision, as it is clear from the analysis of the first complaint that Sernam continued to exist economically within Sernam Xpress and subsequently Financière Sernam.
Therefore, the second complaint must be rejected.
It follows that the fifth plea must be rejected in its entirety.
3.
The sixth plea: error of law on the part of the Commission in its finding that the measures provided for by the memorandum of understanding of 21 July 2005 concerning the transfer en bloc of Sernam’s assets constituted new State aid in favour of Sernam Xpress-Financière Sernam
The sixth ground of appeal consists, in essence, of two parts. In first part, the applicant criticises the Commission for having stated, in recitals 154 to 158 of the contested decision, that the private investor test in a situation of sale at a negative price was inapplicable for the purposes of categorisation as State aid of the measures set out in the memorandum of understanding of 21 July 2005, those being the recapitalisation in the amount of EUR 57 million net, the write-off of EUR 38.5 million in debts and the guarantees (‘the disputed measures’). Under the second part, the applicant criticises the Commission for having found, in recitals 159 to 171 of the contested decision, that the disputed measures conferred an advantage on Sernam Xpress-Financière Sernam.
The first part: the Commission erred in law in declaring the private investor test to be inapplicable to the present case
The applicant, supported by the French Republic, considers, in essence, that the private investor test was applicable to the disputed measures, as it is apparent from the case-law that, in order to establish whether the privatisation of an undertaking for a negative selling price involves elements of State aid, it is necessary to assess whether, in similar circumstances, a private investor of a dimension comparable to that of the bodies managing the public sector could have been prevailed upon to make capital contributions of the same size in connection with the sale of that undertaking or whether it instead would have chosen to wind it up (see, to that effect, judgment of 28 January 2003 in Germany v Commission,
C‑334/99
, ECR,
EU:C:2003:55
, paragraph
and the case-law cited) (‘the “Gröditzer type” private investor test’).
The applicant and the French Republic take the view that, in the present case, no State aid was granted in the transfer effected because its overall cost was lower than the foreseeable costs of winding up Sernam, as they have demonstrated through the information provided to the Commission during the administrative procedure.
The arguments put forward by the applicant, supported by the French Republic, are, in essence, directed at the two grounds referred to by the Commission in recitals 154 and 155 of the contested decision in rejecting the applicability of the ‘Gröditzer type’ private investor test, as described in paragraph 283 above.
The first ground for non-application of the private investor test is set out in recital 154 of the contested decision, where the Commission considered that, in a situation of recovery of State aid, it was not appropriate to apply the private investor principle, since the State acts under the obligations incumbent upon it under Union law and not as a State which is a shareholder.
The second ground for non-application of the private investor test is set out in recital 155 of the contested decision. There the Commission considered, in essence, that, in Article 3(2) of the Sernam 2 Decision, the sale of assets was perceived as an equivalent to the compensatory measures imposed by Article 3(1) and that, according to point 40 of the Guidelines on rescuing and restructuring, the divestment of a loss-making activity could not be considered as a compensatory measure. The Commission noted that the negative price agreed between the applicant and Financière Sernam showed that a divestment of a loss-making activity was involved which could not be the equivalent of a compensatory measure. It went on to conclude that, in this case, the negative price corresponded to operating aid to the undertaking, which was therefore inherently ill-suited to reduce distortions of competition.
It is apparent from recital 155 of the contested decision that the Commission, in order not to apply the private investor test, is relying on the particular context of the present case, involving the applicant’s incorrect implementation of a compensatory measure which was the condition for the compatibility of the EUR 503 million in restructuring aid. The Court considers it appropriate to begin by examining the applicant’s arguments relating to the second ground for non-application of the private investor test.
In regards to the second ground for non-application of the private investor test, in recital 155 of the contested decision, the applicant submits, in essence, two complaints. It considers, firstly, that the sale of the assets en bloc did not constitute an alternative to the compensatory measures set out in Article 3(1) of the Sernam 2 Decision and, secondly, that the implementation of a compensatory measure imposing conditions for the compatibility of aid does not preclude the applicability of the private investor test, inasmuch as it is never the State as a public authority which is required to implement a compensatory measure.
According to the Court’s case-law, however, 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 EU Courts must, in principle, having regard both to the specific features of the case before them 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 (see judgment of 22 December 2008 in British Aggregates v Commission,
C‑487/06 P
, ECR,
EU:C:2008:757
, paragraph
and the case-law cited).
According to the Court’s case-law, 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 of 16 May 2002 in France v Commission,
C‑482/99
, ECR,
EU:C:2002:294
, paragraph
and the case-law cited). In the case of public undertakings, that assessment is made by applying, in principle, the private investor test (judgment of 5 June 2012 in Commission v EDF,
C‑124/10 P
, ECR,
EU:C:2012:318
, paragraph
and the case-law cited).
The Court has held that 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 belonging to it (judgments in Commission v EDF, cited in paragraph
above,
EU:C:2012:318
, paragraph
, and 3 April 2014 in Commission v Netherlands and ING Groep,
C‑224/12 P
, ECR,
EU:C:2014:213
, paragraph
). Interventions by the State which are intended to honour its obligations as a public authority cannot be compared to those of a private investor in a market economy (judgment of 15 December 2009 in EDF v Commission,
T‑156/04
, ECR,
EU:T:2009:505
, paragraph
). In particular, the nature and subject matter of that measure are relevant in that regard, as is its context, the objective pursued and the rules to which the measure is subject (see, to that effect, judgment in Commission v EDF,
EU:C:2012:318
, paragraph
).
The first complaint, directed at recital 155 of the contested decision: the sale of the assets en bloc did not constitute an alternative to the compensatory measures set out in Article 3(1) of the Sernam 2 Decision
The applicant puts forward three arguments in support of this complaint.
Firstly, the applicant considers that the sale of all of Sernam’s assets cannot be considered equivalent to the compensatory measures set out in Article 3(1) of the Sernam 2 Decision, which were a refocusing on the Train Bloc Express (TBE) activity and a withdrawal from road transport activities.
It should be noted in that regard that Article 3(2) of the Sernam 2 Decision corresponds to the implementation of one of the two alternative conditions for compatibility of restructuring aid imposed in Article 3 of the Sernam 2 Decision, by way of measures for preventing distortions of competition caused by restructuring aid and aimed at offering specific compensatory measures to competitors. This is apparent inter alia from the title of the point covering the reasons for the conditions in Article 3 of the Sernam 2 Decision, which is point 6.3.7, entitled ‘Preventing distortions of competition — specific compensatory measures’, which includes recitals 200 to 217 of the Sernam 2 Decision, referred to previously in paragraphs 191 and 193 above.
Article 3(2) of the Sernam 2 Decision is an alternative equivalent to the conditions set out in Article 3(1), as the latter apply ‘subject to paragraph 2’. As stated in paragraph 194 above, according to the wording of recital 217 of the Sernam 2 Decision, the transfer of Sernam’s market shares to the independent acquiring party through the sale en bloc of Sernam’s assets at market price through a transparent and open procedure pursues the same objective of compensating for distortions of competition as the withdrawal from the road market with overcapacity. In that scenario, Sernam’s subsidised activity would be brought to a complete stop.
Therefore, the applicant is incorrect in arguing that, in the present case, the sale of all of Sernam’s assets en bloc to a single purchaser cannot be considered equivalent to the measures for refocusing on TBE activity and withdrawing from road transport activities.
Secondly, the applicant submits that, according to recital 217 of the Sernam 2 Decision, it is the continuation of Sernam in its legal form prior to the transfer which justifies compliance with the compensatory measures set out in Article 3(1) of the Sernam 2 Decision.
However, it is apparent from paragraphs 191 and 192 above that that argument must be rejected, as it is the continuance of the economic activity of the recipient of restructuring aid on the market that justifies compliance with the conditions set out in Article 3(1) of the Sernam 2 Decision and not the mere fact that its legal personality is maintained.
Thirdly, the applicant considers that, if the Commission had perceived the sale of Sernam’s assets en bloc as an equivalent of the compensatory measures imposed by Article 3(1) of the Sernam 2 Decision, it ought to have specified in that decision that a transfer at a negative price could not be envisaged, inasmuch as it was perfectly aware of Sernam’s financial situation and ought to have expected such an eventuality.
That argument must be rejected as well. Since the condition relating to the sale of the assets en bloc excluded the liabilities, the possibility of obtaining a negative price in the present case was by definition precluded, as evidenced by paragraphs 154 to 158 above.
Therefore, the first complaint directed at recital 155 of the contested decision (see paragraph 287 above) must also rejected.
The second complaint, directed at recital 155 of the contested decision: the implementation of a compensatory measure is the responsibility of the recipient of the aid, or of the State shareholder, but not the State as a public authority
The applicant submits that, in any event, in the case of implementation of a compensatory measure ordered by a decision of the Commission, it is the undertaking which benefited from restructuring aid which bears the cost of a compensatory measure and not the State as a public authority.
The applicant and the French Republic add that when a public undertaking decides to sell one of its subsidiaries or all or part of its assets pursuant to a decision of the Commission, that public undertaking and, as the case may be, the State acting through that undertaking, acts in its capacity as shareholder. Consequently, given their nature, subject matter and objective, the disputed measures are an investment which is comparable to that of a private investor.
In the present case, it is clear that, contrary to what the applicant and the French Republic argue, the sale of Sernam’s assets en bloc pursuant to Article 3(2) of the Sernam 2 Decision was not a decision that a private investor would have been led to take in ‘normal’ market conditions, with a view to maximising profit or minimising losses in an economically rational manner.
The underlying logic of the compensatory measures set out in Article 3 of the Sernam 2 Decision was aimed at preventing any excessive distortion of competition brought about by the grant of restructuring aid declared conditionally compatible by the Sernam 2 Decision.
Those compensatory measures could thus bind both the recipient of the aid and its shareholder to a less than optimal solution from the point of view of pure profitability, which a private investor in a so-called ‘normal’ situation would not envisage.
The sale of Sernam’s assets en bloc by way of compensatory measures presupposed, in the present case, the sale of assets having a positive value, which the recipient would not necessarily have been led to transfer for reasons related to economic rationality.
For this reason, the compensatory logic of the sale of Sernam’s assets en bloc, referred to in recital 155 of the contested decision, differed from the logic of a private operator seeking to maximise its profits or, as in this case, minimise its losses.
It is, moreover, apparent from the third, fourth and sixth parts of the fourth plea above that, according to Article 3(2) of the Sernam 2 Decision, it was not a question of selling an entire loss-making company, but only the assets having a positive economic value. In this case, the offer from the management team included the management team’s requirements that there be recapitalisation, write-off of debts and guarantees from the vendor because Sernam in its entirety had been sold, with a need for financing. The disputed measures are thus a direct result of the infringement of Article 3(2) of the Sernam 2 Decision and are accordingly unrelated to the application of the private investor test.
The second complaint, directed at recital 155 of the contested decision, must therefore be rejected.
In those circumstances, it is no longer necessary to examine the other arguments relating to the first ground relied on by the Commission to justify the non-applicability of the private investor test in the context ‘of recovery’ of the State aid.
In the light of the foregoing, the first part of the sixth plea must be rejected.
The second part: none of the disputed measures constitutes an advantage in favour of Sernam Xpress-Financière Sernam
The applicant disputes, in essence, the position that the recapitalisation and write-off of debts conferred advantages on Sernam Xpress-Financière Sernam. Regarding, first of all, the guarantees, it states that the contested decision did not contain a statement of reasons, as it is silent on the point whether the guarantees are a departure from normal conditions of transfer by a private vendor. Next, it argues, in the alternative, that each guarantee would have been granted by a private vendor. Lastly, it submits, in essence, that those guarantees did not confer advantages in favour of Sernam Xpress-Financière Sernam because they were for a low amount and were not implemented.
Firstly, the applicant takes the view that the recapitalisation of Sernam for the purposes of the transfer of its assets en bloc conferred no advantage on Financière Sernam or any of the undertakings, as that transfer was effected at a market price.
It is noteworthy that the Commission did not express a position, in the contested decision, on the question of a possible advantage conferred on Financière Sernam as purchaser of the shares in Sernam Xpress, but as the successor of Sernam Xpress following their merger.
In that regard the Commission stated, in recital 159 of the contested decision, that ‘since [Sernam Xpress and Financière Sernam] merged subsequently, there [was] no need to distinguish between the advantages granted to one or the other’. It applied that reasoning to all the disputed measures, including the recapitalisation.
Furthermore, recital 172 of the contested decision reads as follows:
‘In recital 164 of the opening decision, the Commission also considered the question whether the negative price “paid” by Financière Sernam did in fact correspond to market value. In this respect, the Commission observes that in the meantime, the merger had taken place between Sernam Xpress and Financière Sernam, and that possible aid to Financière Sernam consisting in too high a negative price would not exceed the EUR 57 million of aid that Sernam Xpress received as new aid. Consequently, it is no longer necessary to decide on the question of possible aid to the purchaser.’
As regards Sernam, its recapitalisation represents an indisputable financial advantage compared to its competitors. It is also apparent from the examination of the first part of the sixth plea that, in this specific case, the Commission was correct in not comparing the State’s conduct to that of a private investor in normal market conditions. The financial advantage that recapitalisation represents must therefore be considered State aid within the meaning of Article 107(1) TFEU.
It is furthermore apparent from the fifth plea that there is economic continuity between Sernam and Sernam Xpress and that, consequently, the advantage associated with the recapitalisation was transferred to Sernam Xpress. In any event, even if the sale price was a market price, that does not preclude Sernam Xpress — which, it was demonstrated above, continued to carry on those activities of Sernam concerned by the State aid granted — from retaining the benefit of the advantage resulting from all of the State aid at issue, including the recapitalisation of EUR 57 million net (see, to that effect, the
SMI
judgment, cited in paragraph 52 above,
EU:C:2004:238
, paragraphs
and
).
Thus, the Commission was correct in finding, in recital 160 of the contested decision, that ‘as a result of the EUR 57 million capital injection by [the applicant] in [Sernam], [Sernam] received a considerable financial advantage which is not available to its competitors. This advantage was then transferred with the other assets and liabilities to Sernam Xpress’.
Secondly, the applicant submits that the Commission made an error of law and an error of fact in stating, in recital 162 of the contested decision, that the applicant’s write-off of EUR 38.5 million in debts owed by Sernam conferred an advantage on Sernam Xpress or on Financière Sernam, on the ground that it entered the debt in the liabilities of the liquidation account of Sernam and that it was not a creditor of Sernam Xpress or Financière Sernam.
That argument must be rejected. The applicant was a creditor of Sernam and it is apparent from the analysis of the fifth plea that there is economic continuity between Sernam and Sernam Xpress and, following their merger, between Sernam Xpress and Financière Sernam. In such circumstances, entering those claims in the liabilities of the liquidation account of Sernam is tantamount to granting an advantage to Sernam Xpress and then Financière Sernam.
Thirdly, the applicant submits that the Commission did not provide reasons for its finding, in recitals 163 to 171 of the contested decision with regards to the guarantees granted by the applicant at the time of the so-called transfer of the ‘assets en bloc’ of Sernam, as the contested decision is silent on the point whether those guarantees are a departure from the normal conditions of transfer by a private operator. The applicant states in that regard that transfers (be they transfers of assets or of undertakings) regularly include guarantees and that the question that arises in the assessment of those guarantees in terms of State aid is whether they constitute conduct of a private operator in a market economy (in this case ‘a private vendor’ in a market economy). The applicant considers that guarantees of liabilities can constitute State aid only if they are offered on terms which would not be acceptable for a private vendor in a market economy.
As stated in Commission Notice on the application of Articles [107 TFEU] and [108 TFEU] to State aid in the form of guarantees (
OJ 2000 C 71, p. 14
), in the same way as other forms of potential aid, guarantees given by the State directly, as well as guarantees given by undertakings under the dominant influence of public authorities, may constitute State aid.
It should be noted, first of all, that the Commission gave general grounds for refusing to apply the private investor test to any of the disputed measures, in paragraphs 152 to 158 of the contested decision. It was accordingly not necessary for the Commission to add specific reasons concerning the guarantees; nor then was there a failure to state reasons on this point. Moreover, due reasons were provided for the advantage that each of those guarantees represented in favour of Sernam Xpress (and, through the merger, in favour of Financière Sernam) in recitals 164 to 171 of the contested decision.
Next, it is apparent from paragraphs 293 to 313 above that the Commission was correct in not applying the private investor test to the disputed measures, including the guarantees. Consequently, the applicant’s arguments put forward in the alternative, aimed at establishing that each guarantee was granted by a private vendor, cannot be upheld.
Lastly, the applicant’s other arguments aimed at challenging the fact that each of the guarantees conferred an advantage in favour of Sernam Xpress-Financière Sernam, must be rejected, for the following reasons.
The guarantee relating to the development of the Valenton site and the guarantee relating to the increase in rent for the new operating sites
The applicant submits that the guarantee relating to the development of the Valenton site, necessary for the running of the TBE, on pain of a fine of EUR 1 million in the event of delay in the completion of the work, and the guarantee relating to the increase in rent for the new operating sites, for a differential maximum of EUR 3 million and for a maximum duration of three years, were for a limited amount and were not implemented.
First of all, the Commission was correct in finding, in recital 164 of the contested decision, that those guarantees conferred an advantage because, in their absence, Sernam Xpress/Financière Sernam would have had to bear the costs in question themselves.
Next, regarding the applicant’s argument based on the modest amount of the aid at issue, it should be remembered that, according to settled case-law, the relatively small amount of aid or the relatively small size of the undertaking which receives it does not as such exclude the possibility that trade between Member States might be affected (see judgment of 24 July 2003 in Altmark Trans and Regierungspräsidium Magdeburg,
C‑280/00
, ECR,
EU:C:2003:415
, paragraph
and the case-law cited; see also, to that effect, judgment of 4 April 2001 in Regione Autonoma Friuli-Venezia Giulia v Commission,
T‑288/97
, ECR,
EU:T:2001:115
, paragraph
and the case-law cited).
Lastly, it should also be noted that, in accordance with point 2.1.2 of the Commission Notice on State aid in the form of guarantees referred to in paragraph 325 above, the fact that those guarantees were not paid is irrelevant for the purposes of its being categorised as an advantage, given that the aid is granted at the time when the guarantee is offered, and not at the time when it is put to use or involves payments.
Moreover, the applicant’s argument to the effect that the guarantee relating to the development of the Valenton site arose from its intention to recover another site must be rejected, as the applicant could require a move to Valenton (France) without having to provide a guarantee of completion of the development work on that site.
The guarantee of continuity of the TBE and of access thereto
Regarding the guarantee of continuity of the TBE and of access thereto, the applicant submits that it was not exclusive in nature and therefore conferred no advantage on Sernam Xpress as compared to its competitors.
It should be noted, however, that the Commission was correct in finding, in recital 165 of the contested decision, that that guarantee reduced significantly the risk incurred by Sernam Xpress-Financière Sernam, which constitutes an advantage. Noteworthy in that regard is that the applicant does not argue that other undertakings actually use the TBE. It is also apparent from recital 163 of the contested decision that that guarantee gave rise to actual payment of EUR 3 million from the applicant to Sernam Xpress, which is not disputed. There can accordingly be no doubt that there was an advantage in favour of Sernam Xpress as compared to its competitors.
The three-year extension of the guarantee of re-employment of the employees within the applicant’s group
The applicant considers that recital 169 of the contested decision, which states that the three-year extension of the guarantee of re-employment of the employees within its group makes it more attractive to remain employed at Sernam Xpress, begs the question and is unsubstantiated.
It is clear, however, that the Commission did demonstrate to the requisite legal standard, in recitals 169 and 171 of the contested decision, the existence of an advantage for Sernam Xpress residing in the fact that that guarantee made it more attractive to remain employed with Sernam Xpress during that period and that it enabled Sernam Xpress to retain employees without having to bear additional cost. The advantage thus did not consist entirely of the salaries paid, but also of the differential corresponding to the salary increase that Sernam Xpress ought to have paid to keep those employees, in the absence of that guarantee.
It follows that the second part of the sixth plea must be rejected.
It follows from all of the above that the sixth plea in law must be rejected in its entirety.
4.
The applicant’s first plea in law and the French Republic’s plea in law, alleging infringement of their respective rights of defence
By its first plea, the applicant criticises the Commission, in essence, for having taken, in the contested decision, a position which was not in the opening decision and on which it did not have due opportunity to submit its observations. It refers to recitals 154 to 158 of the contested decision, according to which the private investor test should not be applied to the present case.
The French Republic submits, in an independent plea, that that divergence between the opening decision and the contested decision also constitutes an infringement of its own rights of defence.
The Commission disputes the applicant’s arguments and considers that the plea put forward by the French Republic is clearly inadmissible and, in any event, unfounded.
Where it appears that a plea of dubious connection to the subject matter of the dispute is in any event to be dismissed as inadmissible for another reason or because it is unfounded, it is open to the Court to dismiss that plea without ruling on the issue whether the intervener went beyond the parameters of its role in support of the form of order sought by one of the main parties (see judgment of 15 June 2005 in Regione autonoma della Sardegna v Commission,
T‑171/02
, ECR,
EU:T:2005:219
, paragraph
and the case-law cited).
In the present case, by way of procedural economy, the Court considers that the plea put forward by the French Republic alleging infringement of its rights of defence should be examined, without ruling beforehand on the plea of inadmissibility raised by the Commission concerning the admissibility of that plea, as those arguments do not show that the Commission, in the contested decision, infringed the French Republic’s rights of defence, for the reasons set out below. Next the analysis will turn to the applicant’s first plea, which criticises the same divergence between the opening decision and the contested decision.
The French Republic’s plea alleging infringement of its rights of defence
The French Republic in essence criticises the fact that not only in the opening decision but also throughout the administrative procedure up to the last stage thereof, the Commission never considered or even intimated that the private investor test was, as a matter of principle, inapplicable in the present case. The French authorities were unable to provide observations on the question of the applicability of the private investor test as set out in the judgment in Germany v Commission, cited in paragraph
above (
EU:C:2003:55
) to the present case and, on the contrary, were questioned principally about the conditions of application of the comparison between the costs of transferring Sernam’s assets and the costs of liquidating it. Yet in the contested decision, the Commission suddenly and unexpectedly maintains that that comparison is irrelevant to the present case as the private investor test was not applicable to the specific circumstances hereof. By failing to notify the French Republic of the radical change in its assessment while the procedure was under way, the Commission did not give the French Republic the opportunity to present opposing arguments during the formal investigation procedure, the Commission’s position on the categorisation of the measures set out in the memorandum of understanding of 21 July 2005 relating to the sale of Sernam’s assets en bloc as State aid within the meaning of Article 107(1) TFEU.
In its observations on the French Republic’s statement in intervention, the applicant stated that it supported the French Republic’s plea alleging infringement of its rights of defence as a Member State.
It is apparent from the case-law that observance of the rights of the defence is, in all open procedures initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of European Union law which must be guaranteed even in the absence of any specific rules (see judgment of 21 March 1990 in Belgium v Commission,
C‑142/87
, ECR,
EU:C:1990:125
, paragraph
and the case-law cited). The Court has held that that principle requires that the Member State in question must be given the opportunity effectively to make known its views on the evidence on which the Commission based its assessment (see, to that effect and by analogy, judgment in Belgium v Commission,
EU:C:1990:125
, paragraph
).
Under Article 6 of Regulation No 659/1999, when the Commission decides to initiate the formal investigation procedure, it is permissible for its decision opening the procedure merely to summarise the relevant issues of fact and law, to include a provisional assessment as to the aid character of the State measure in question and to set out its doubts as to the measure’s compatibility with the internal market (judgments of 23 October 2002 in Diputación Foral de Guipúzcoa and Others v Commission,
T‑269/99, T‑271/99 and T‑272/99
, ECR,
EU:T:2002:258
, paragraph
, and 22 October 2008 in TV2/Danmark and Others v Commission,
T‑309/04, T‑317/04, T‑329/04 and T‑336/04
, ECR,
EU:T:2008:457
, paragraph
).
It should be noted that the formal investigation procedure affords an opportunity to examine in depth and shed light on the questions raised in the opening decision (judgment of 4 March 2009 in Italy v Commission,
T‑424/05
,
EU:T:2009:49
, paragraph
).
It follows from Article 7 of Regulation No 659/1999 that, at the end of the formal investigation procedure, the Commission’s analysis may have changed, as it may ultimately decide that the measure does not constitute aid or that the doubts as to the compatibility of the measure have been removed. The final decision may thus contain certain differences with respect to the initiating decision, without their necessarily vitiating the final decision (judgments in Italy v Commission, cited in paragraph
above,
EU:T:2009:49
, paragraph
, and 16 December 2010 in Netherlands and NOS v Commission,
T‑231/06 and T‑237/06
, ECR,
EU:T:2010:525
, paragraph
).
In the opening decision in the present case, the Commission stated, inter alia in paragraphs 131 to 133 and 166, that in order to determine whether the recapitalisation and write-off of debts constituted State aid, it intended to apply the ‘Gröditzer type’ private investor test by comparing the costs of the operation implemented under Article 3(2) of the Sernam 2 Decision with the costs that would have been incurred by the applicant had there been a liquidation of Sernam.
However, firstly, it should be noted that paragraphs 141 and 142 of the opening decision clearly highlighted that those reasons were provisional in nature as to the categorisation as new aid, as illustrated by the use of the words ‘at this stage’. The fact that other passages were more affirmative does not affect this conclusion, especially given the purpose of the opening decision and the provisional nature of the analysis contained therein.
Thus, although the Commission did consider it necessary to gather information on the costs of liquidation of Sernam, the conclusion, in paragraph 140 of the opening decision, to the effect that a determination will have to be made as to whether the total cost of recapitalisation was higher or lower than the hypothetical cost of liquidating Sernam must be placed back in the context of the formal investigation procedure and its objectives, which are to enable interested parties to express their views and the Commission to be fully enlightened with regard to all the information in the case before taking its decision. The scope of the formal investigation procedure cannot be other than as described above and, specifically, the formal investigation procedure cannot accommodate a definitive ruling on certain aspects of the case before the final decision is adopted (see, to that effect, judgment of 1 July 2010 in ThyssenKrupp Acciai Speciali Terni v Commission,
T‑62/08
, ECR,
EU:T:2010:268
, paragraphs
and
and the case-law cited).
Secondly, as reference is made in the opening decision to the question of the private investor test for the purposes of determining whether the recapitalisation and the write-off of debts constituted an advantage within the meaning of Article 107(1) TFEU, the French Republic did have the opportunity to put forward all of its arguments explaining why the test should be applied, especially given the specific context of the present case. The Commission submits in that regard that there were no precedents of applying the private investor test in a context of implementation of a conditional compatibility decision.
It should also be noted that, in paragraph 161 of the opening decision, the Commission mentioned that other, additional resources available to Sernam Xpress, including resources in the form of a financial advantage, could arise from the guarantees originating from SNCF.
Consequently, having regard to the opening decision, the French Republic did have an opportunity to know the reasons that led the Commission to consider provisionally that the recapitalisation, write-off of debts and guarantees could constitute new, incompatible aid and duly put forward its views on the factors on which the Commission based its assessment.
Thirdly, it has already been held that neither the provisions on State aid nor the case-law require the Commission to hear the views of the recipient of State resources on its legal assessment of the measure in question or to inform the Member State concerned — or, a fortiori, the recipient of the aid — of its position before adopting its decision, where the interested parties and the Member State concerned have been given notice to submit their comments (judgment of 1 July 2010 in Italy v Commission,
T‑53/08
, ECR,
EU:T:2010:267
, paragraph
).
Fourthly, given the reasons for the inapplicability of the private investor test in the present case, that is to say, in the context of recovery of State aid (recital 154 of the contested decision), and the fact that Article 3(2) of the Sernam 2 Decision was a measure equivalent to the compensatory measures of Article 3(1), which was not observed (recital 155 of the contested decision), the conclusion is that, at the time of the opening decision, the Commission was yet to ascertain whether Article 3(2) of the Sernam 2 Decision and the recovery of the EUR 41 million in unlawful and incompatible aid had been correctly applied. Therefore, at the time of the opening decision, the Commission was not yet in a position to determine that the private investor test would be inapplicable to the present case.
It follows that the plea alleging infringement of the French Republic’s rights of defence must be dismissed.
The applicant’s first plea: infringement of its rights of defence
The applicant, supported by the French Republic, submits, in essence, two complaints. By its first complaint, the applicant submits that the difference between the opening decision and the contested decision referred to in paragraph 345 above constitutes an infringement of its rights of defence. By its second complaint, it submits that that difference is an infringement of its right to submit observations as an interested party on an essential factor which supported the finding that the manner in which the transfer was effected gave rise to there being State aid.
Regarding the applicant’s procedural rights, it must be borne in mind that they are, in any event, less extensive than those of the French Republic as a Member State concerned in the formal investigation procedure under Article 108(2) TFEU. In that regard, it is clear from the case-law of the Court that interested parties other than the Member State concerned, such as in the present case the applicant, have, in the procedure for reviewing State aid, only the opportunity to send to the Commission all information intended for the guidance of the latter with regard to its future action and they cannot themselves seek to engage in an adversarial debate with the Commission in the same way as is offered to that Member State (see, to that effect, judgment of 15 November 2011 in Commission and Spain vGovernment of Gibraltar and United Kingdom,
C‑106/09 P and C‑107/09 P
, ECR,
EU:C:2011:732
, paragraphs
and
and the case-law cited). The right of the interested parties to information does not go beyond the right to be heard by the Commission. In particular, it cannot extend to the general right to comment on all the potentially key points raised during the formal investigation procedure (see judgment of 30 November 2009 in France v Commission,
T‑427/04 and T‑17/05
, ECR,
EU:T:2009:474
, paragraph
and the case-law cited).
It follows from those principles that, far from enjoying the same rights of defence as those which individuals against whom a procedure has been instituted are recognised as having, the parties concerned have only the right to be involved in the administrative procedure to the extent appropriate in the light of the circumstances of the case (judgments of 25 June 1998 in British Airways and Others v Commission,
T‑371/94 and T‑394/94
, ECR,
EU:T:1998:140
, paragraph
, and 6 March 2003 in Westdeutsche Landesbank Girozentrale and Land Nordrhein-Westfalen v Commission,
T‑228/99 and T‑233/99
, ECR,
EU:T:2003:57
, paragraph
).
The applicant’s complaint alleging infringement of its rights of the defence must therefore be rejected.
As regards the applicant’s complaint alleging infringement of its rights as interested party, it should be observed that the applicant had the option of providing the Commission with comments on the opening decision, which identified precisely the disputed measures as constituting potential incompatible State aid, which option it exercised. Consequently, the applicant was sufficiently informed that there was an investigation procedure and was given an opportunity to present any observations it deemed appropriate as an interested party.
As the difference observed between the opening decision and the contested decision does not give rise to an infringement of the French Republic’s rights of defence and since the applicant submits, in essence, the same arguments as the French Republic, the conclusion is that nor does that difference between the opening decision and the contested decision give rise to an infringement of its procedural rights as an interested party to the procedure.
Therefore, the applicant’s complaint about the infringement of its right to present appropriate observations as an interested party must be rejected.
In view of the foregoing, the applicant’s first plea must be rejected.
5.
The second plea: infringement of the principle of the protection of legitimate expectations
The applicant puts forward, in essence, three complaints. By its first complaint, the applicant submits that Article 3(2) and Article 4 of the Sernam 2 Decision led it to entertain well-founded expectations that it was authorised to proceed as it did at the time of the transfer of the assets and at the time of the recovery of the EUR 41 million in aid declared incompatible by the Sernam 2 Decision. By its second complaint, the applicant submits that the Commission’s request for information on the details of the liquidation costs of Sernam, dated 14 March 2006, reassured it that the private investor test was going to be applied to the transfer en bloc of Sernam’s assets and that, consequently, that transfer was exempt from State aid. By its third complaint, the applicant disputes, in essence, recitals 126 and 177 to 182 of the contested decision.
The first complaint: Article 3(2) and Article 4 of the Sernam 2 Decision led the applicant to entertain well-founded expectations that it was authorised to proceed as it did at the time of the transfer of the assets and at the time of the recovery of the EUR 41 million
The applicant submits that Article 3(2) and Article 4 of the Sernam 2 Decision constituted ‘unequivocal principles’ and ‘adopted positions’ forming the basis of its legitimate expectation that it was authorised to implement them as it did.
According to settled case-law, any individual in regard to whom a European Union institution has given rise to justified hopes may rely on the principle of the protection of legitimate expectations (judgment of 11 March 1987 in Van den Bergh en Jurgens and Van Dijk Food Products (Lopik) v EEC,
265/85
,
EU:C:1987:121
, paragraph
), in respect of which three cumulative conditions must be satisfied. First, precise, unconditional and consistent assurances originating from authorised and reliable sources must have been given to the person concerned by the Union authorities. Second, those assurances must be such as to give rise to a legitimate expectation on the part of the person to whom they are addressed. Third, the assurances given must comply with the applicable rules (see judgments of 30 June 2005 in Branco v Commission,
T‑347/03
, ECR,
EU:T:2005:265
, paragraph
and the case-law cited; 23 February 2006 in Cementbouw Handel & Industrie v Commission,
T‑282/02
, ECR,
EU:T:2006:64
, paragraph
; and 30 June 2009 in CPEM v Commission,
T‑444/07
, ECR,
EU:T:2009:227
, paragraph
).
It should be observed that Article 1 of the Sernam 2 Decision (see paragraph 14 above) states explicitly that the State aid in favour of Sernam, which was approved in May 2001 in the amount of EUR 503 million, is compatible with the common market on the terms set out in Articles 3 and 4 of the same decision.
It is apparent from paragraphs 118, 278 and 279 above that Article 3(2) and Article 4 of the Sernam 2 Decision were sufficiently comprehensible on the point that the sale of Sernam’s assets en bloc did not authorise the transfer of its liabilities and that, if Sernam or another entity continuing Sernam economically continued to exist on the market, it would be liable for the repayment of the EUR 41 million, even in the event of a market price through a procedure that was transparent and open to all its competitors. Moreover, it is apparent from the analysis of the fourth and the fifth pleas that the applicant misapplied those two provisions of the Sernam 2 Decision.
Consequently, Article 3(2) and Article 4 of the Sernam 2 Decision were not liable to provide a basis for any legitimate expectation on the part of the applicant that it could add Sernam’s liabilities to its assets and merely enter the EUR 41 million in the liabilities of the liquidation account of Sernam when there was economic continuity between Sernam and Sernam Xpress.
Moreover, Article 3(2) and Article 4 of the Sernam 2 Decision set out conditions and were therefore not liable to give precise and unconditional assurances to the effect that those conditions would be considered observed. As observed correctly by the Commission, this complaint does not relate so much to legitimate expectations as such, but rather to the determination of whether there was compliance with the compatibility conditions laid down in the Sernam 2 Decision.
It follows that the first complaint must be rejected.
The second complaint: the content of the request for information on the details of Sernam’s liquidation costs dated 14 March 2006
The applicant submits that the Commission’s request for information on the details of the liquidation costs of Sernam, dated 14 March 2006, reassured it that the ‘Gröditzer type’ private investor test on sales at a negative price was going to be applied by the Commission and that, consequently, the transfer en bloc of Sernam’s assets was free of State aid.
Firstly, it should be noted that the letter of 14 March 2006 is part of a process of verification of compliance with the conditions of the Sernam 2 Decision and is subsequent to the operation organised by the applicant in order to implement Article 3(2) of the Sernam 2 Decision. Consequently, that letter was not such as to lead the applicant to entertain a legitimate expectation that its operation, which preceded that letter, did not entail new State aid.
Secondly, contrary to the applicant’s assertions, such a statement in the letter of 14 March 2006 was not in any event such as to provide it with precise, unconditional and consistent assurances to the effect that the private investor test was actually going to be applied in the Commission’s final decision, nor that it would be considered satisfied in the present case. It was in fact a simple request for information from the Commission as part of a verification procedure, not a completed and definitive analysis of the measures in question.
It follows that the second complaint must be rejected.
The third complaint: the Commission made an error in recitals 126 and 177 to 182 of the contested decision
The applicant submits in essence that the Commission made an error in recitals 177 to 182 of the contested decision, in refuting the fact that the French Republic or the recipients of the aid were led to entertain a legitimate expectation that the transaction complied with the Sernam 2 Decision because of the steps taken by the French authorities with the Commission.
The Court considers that it is also appropriate to examine, under the present complaint, certain arguments put forward under the sixth part of the fourth plea, directed at recital 126 of the contested decision, which overlap to a great extent with the arguments put forward in connection with the present complaint.
In essence the applicant puts forward three arguments in support of its third complaint.
It is apparent from recitals 126, and 177 to 182 of the contested decision that the Commission, in essence, refuted the position that there could be a legitimate expectation that the operation effected complied with the Sernam 2 Decision and EU law as a result of the steps taken by the French authorities, such as their visit to the Commission on 24 November 2004, their correspondence of 21 December 2004, as well as other contacts with it. It stated, in recitals 178 to 181, that the information communicated by the French Republic was limited to informing it of the decision to sell the assets en bloc, without describing the essential aspects of the transfer operation of Sernam’s assets and that, in any event, the French authorities could not claim entitlement to benefit from a legitimate expectation without having spontaneously informed it, on 21 December 2004 or later, of those substantial aspects. The Commission added, in recitals 126 and 182 of the contested decision, that if the French authorities were experiencing difficulties in implementing the Sernam 2 Decision, they should have recontacted the Commission to find a solution, in agreement with it, concerning other arrangements pursuant to the principle of sincere cooperation provided for in Article 4(3) TEU and section 3.2.3 of the Guidelines on rescuing and restructuring, which states that a Member State may not deviate from the restructuring plan without notifying and obtaining the prior approval of the Commission.
Firstly, the applicant refers to contacts with the Commission which provided a basis for its legitimate expectation that the operation effected complied with the Sernam 2 Decision.
Regarding the contact by telephone on 8 November 2004 between the Director-General of the Agence des participations de l’État (APE) (the French Government shareholding agency), and the Director-General of the Directorate-General (DG) for Energy and Transport, it is clear that the applicant is not relying on any report of that exchange; nor is there any official record of that exchange in the case file. The same holds true for the meeting between the Director of General Affairs of the DG for Energy and Transport and the APE-SNCF delegation of 24 November 2004, and for the contact by telephone of July 2005 between the President of the SNCF and the Director of the DG for Energy and Transport. The few passing references to those contacts in the file do not afford a clear and complete view of the exchanges that took place, or a conclusion that authorisation had been given to the French authorities on the disputed aspects of the transaction.
Secondly, the applicant refers to the correspondence from the French authorities to the Commission of 21 December 2004. Yet it is apparent from a reading of that document that the Commission was correct in finding, in recital 179 of the contested decision, that it did not allow the Commission to foresee the exact manner in which the French authorities were to implement the Sernam 2 Decision, because it did not set out the essential, disputed aspects of the transaction, which were that the transfer was based on an intra-group transfer of the assets and liabilities to another legal entity (Sernam Xpress), followed by divestiture of that other entity (share deal); and that most of the liabilities would be transferred with the assets and that only the recovery order pertaining to the EUR 41 million in aid and the debts owed to SNCF in the amount of EUR 38.5 million would remain in the liabilities of the liquidation account of Sernam; or that the French Republic was prepared to recapitalise Sernam and Sernam Xpress in the event of a takeover offer at a negative price.
In fact none of those aspects is referred to explicitly in the correspondence. As observed by the Commission, ‘on the contrary, the note of 21 December 2004 gives the impression that the disposal would be carried out without distinction between the liabilities and at a positive price, since it indicates that “as soon as the disposal has been carried out, the proceeds will be used to repay the liabilities of the legal person Sernam, including the incompatible aid, under normal national procedures”’.
Thirdly, the applicant criticises recitals 126 and 182 of the contested decision on the ground that the Sernam 2 Decision was correctly applied and that there would have been no amendment to the restructuring plan. That argument must be dismissed on the ground that it is apparent from the analysis of the fourth plea that Article 3(2) of the Sernam 2 Decision was, in reality, not observed. Yet that condition of compatibility of the aid was an integral part of the restructuring plan approved by the Sernam 2 Decision. Therefore, under point 52 of the Guidelines on rescuing and restructuring, the French authorities ought to have requested the Commission to approve the amendments to the restructuring plan.
It follows that the third complaint must be rejected.
In light of the foregoing, the second plea in law must be rejected as unfounded.
6.
The third plea: infringement of the duty to act within a reasonable time and of the principle of legal certainty
The applicant submits, in essence, that in adopting the contested decision more than seven years after completion of the operation termed ‘sale of the assets en bloc’, the Commission infringed its duty to act within a reasonable time, Article 41(1) of the Charter of Fundamental Rights of the European Union, read in conjunction with Article 52(3) thereof and the principle of legal certainty. Its arguments may be broken down, in essence, into three complaints.
As a preliminary point, it must be borne in mind that the need to act within a reasonable time in conducting administrative proceedings relating to competition policy is a general principle of EU law whose observance is ensured by the EU judicature and which is incorporated, as an element of the right to sound administration, in Article 41(1) of the Charter of Fundamental Rights of the European Union (judgment of 13 January 2004 in JCB Service v Commission,
T‑67/01
, ECR,
EU:T:2004:3
, paragraph
).
However, infringement of the principle that the Commission must act within a reasonable time, if established, would justify the annulment of a decision taken at the end of an administrative procedure in competition proceedings only in so far as it also constituted an infringement of the rights of defence of the undertaking concerned. Where it has not been established that the undue delay has adversely affected the ability of the undertakings concerned to defend themselves effectively, failure to comply with the principle that the Commission must act within a reasonable time cannot affect the validity of the administrative procedure and can therefore be regarded only as a cause of damage capable of being relied on before the EU judicature. In any event, it must also be borne in mind that, during the investigation phase referred to in Article 108(2) TFEU, interested parties such as the applicant in the present case, far from enjoying the same rights of defence as those which individuals against whom a procedure has been instituted are recognised as having, the parties concerned have only the right to be involved in the administrative procedure to the extent appropriate in the light of the circumstances of the case (see, to that effect, judgment in Eridania Sadam v Commission, cited in paragraph
above,
EU:T:2011:608
, paragraphs
and
and the case-law cited).
The first complaint: the three-year period that passed between the sale of Sernam’s assets en bloc and the opening of the formal investigation procedure on 16 July 2008
The applicant criticises in essence the Commission for the excessive three-year period that passed after the sale of Sernam’s assets en bloc until the opening of a formal investigation procedure on 16 July 2008. The applicant puts forward a number of arguments in order to demonstrate that the Commission was informed promptly about the details of the transfer of Sernam’s assets that it implemented, such as the complaint submitted by the first complainant in June 2005, the interview given by the President of SNCF in
Les Echos
on 26 July 2005, the fact that the Director of the DG for Energy and Transport was informed by telephone of the details of the transfer in July 2005. It adds that proceedings for failure to act were instituted against the Commission on 22 February 2006 and that, on 11 April 2006, the Commission was in possession of all the information and material necessary for its analysis.
As stated earlier, the need to act within a reasonable time in conducting administrative proceedings relating to competition policy is a principle of sound administration (see, to that effect, judgments of 27 November 2003 in Regione Siciliana v Commission,
T‑190/00
, ECR,
EU:T:2003:316
, paragraph
and the case-law cited, and
JCB Service
v
Commission
, cited in paragraph 392 above,
EU:T:2004:3
, paragraph
).
According to the case-law, the fact that the preliminary stage of the procedure for reviewing aid was triggered by a complaint and not by a notification does not confer discretion on the Commission to extend the preliminary stage of the procedure for reviewing aid. It has been held that since it has exclusive jurisdiction to assess the compatibility of State aid with the common market, the Commission must, in the interests of sound administration and the fundamental rules of the Treaty relating to State aid, conduct a diligent and impartial examination of a complaint alleging aid to be incompatible with the common market, and cannot therefore prolong indefinitely its preliminary investigation into State measures in relation to which there has been a complaint concerning State aid. In accordance with settled case-law, whether or not the duration of an administrative procedure is reasonable must be determined in relation to the particular circumstances of each case and, especially, its context, the various procedural stages to be followed by the Commission, the complexity of the case and its importance for the various parties involved (see, to that effect, judgment of 20 September 2011 in Regione autonoma della Sardegna and Others v Commission,
T‑394/08, T‑408/08, T‑453/08 and T‑454/08
, ECR,
EU:T:2011:493
, paragraphs
and
and the case-law cited).
In the present case, it is apparent from the case file that the Commission examined immediately the information in its possession concerning the complaints about the misuse of the aid, as required under Article 10(1) of Regulation No 659/1999, which, by virtue of Article 16 thereof, is applicable mutatis mutandis to misuse of aid and has not remained inactive during the three years preceding the opening decision.
The principal stages are as follows:
—
questions from the Commission to the French authorities by letters of 30 September 2005 and reply from the French authorities on 2 November 2005;
—
questions from the Commission to the French authorities by letter of 14 March 2006 and reply from the French authorities on 11 April 2006;
—
by letters of 10 April 2006 and 23 April 2007, a second interested party also lodged a complaint with the Commission;
—
questions from the Commission to the French authorities by letter of 8 September 2006 and replies from the French authorities on 10 October 2006;
—
meeting between the French authorities and the Commission on 14 May 2007; the French authorities replied to the questions from the Commission by letter of 25 July 2007;
—
meeting between the Commission and the French authorities on 18 April 2008 and, further to that, memorandum from the French authorities of 6 May 2008 providing responses to the questions raised at that meeting.
Contrary to the applicant’s assertions, the Commission did not have full knowledge of the file on 11 April 2006, because it considered, in its new questions of 8 September 2006, that the two responses received from the French authorities and new factors reported to it raised additional questions.
That time period does not seem unreasonable, given the factual and legal context of the case.
Consequently, the first complaint must be rejected.
The second complaint: the time period of more than three years which passed between the opening of the formal investigation procedure on 16 July 2008, and the request for information of 29 November 2011
The applicant criticises the Commission, in essence, for the time period of more than three years which passed between the opening of the formal investigation procedure on 16 July 2008 and the request for information of 29 November 2011. Firstly, the applicant submits that the latest comments from the French authorities about the first complainant’s observations on the decision to open the procedure had been sent on 7 May 2009, some two and a half years before the adoption of the contested decision. Secondly, as regards the request for information of 29 November 2011, the applicant expresses surprise at the fact that the questions put concerned only the costs of liquidation of Sernam, an issue which was put to the side three months later at the time of adoption of the contested decision, and at the six years it took the Commission to request a copy of the proposals for takeover of the assets en bloc of Sernam which were received during the tendering procedure.
Firstly, it should be noted that, following the opening of the formal procedure on 16 July 2008, the principal stages of the procedure were as follows:
—
on 8 October 2008, 13 November 2008, 6 and 9 February 2009, the French authorities, the first complainant, the applicant and the investment fund entered in the capital of Sernam Xpress in turn presented observations on the opening decision; the Commission sent the observations received to the French Republic on 25 March 2009;
—
on 5 May 2009, the French authorities submitted their observations on the first complainant’s observations (received on 7 May 2009 by the Commission);
—
on 25 November 2009, the Commission sent a new request for information to the French authorities, which replied on 14 January 2010;
—
on 15 March 2011, the second complainant served notice on the Commission to implement investigation measures for the purposes of verifying the conditions of application of the Sernam 2 Decision; the Commission replied on 18 May 2011;
—
on 29 November 2011 and on 13 January 2012, the Commission again put questions to the French authorities, who replied on 6 and 25 January 2012 respectively;
—
on 9 March 2012, the contested decision was taken.
It should be noted that the time period of more than three years that passed between the opening of the formal investigation procedure and the request for information of November 2011, criticised by the applicant, was in fact interrupted by the various sets of observations received on the opening decision and by the request for information of 25 November 2009.
Thus, the Commission had to analyse the observations received on the opening decision, including certain documents attached as annexes to the French Republic’s observations of 8 October 2008, such as the updated report of auditing firm Y and the report drawn up by a professor of French law on national law.
Given the factual and legal complexity of the case, that time period for analysis does not seem unreasonable. The context of this case was particular in that the Commission had already had to examine the unlawfully-granted aid twice and had already found that the aid declared in the Sernam 1 decision had been misused. Moreover, the transfer operations to be analysed were complex and the Commission was led to examine not only the implementation of the conditions of compatibility of the Sernam 2 Decision, the question of the recovery of the EUR 41 million of aid declared incompatible by the Sernam 2 Decision and the economic continuity between a number of entities, but also the question of new aid provided for in the memorandum of understanding of 21 July 2005.
Moreover, neither the applicant nor the French Republic states that they complained during the procedure about the length of the administrative procedure.
Secondly, it should first be noted that it was not wrong of the Commission to wait before requesting a copy of the offers received during the tendering procedure. It could consider, initially, to be sufficient the explanations from the French authorities about those offers which had been sent previously, inter alia in the correspondence of 11 April 2006 and 6 May 2008, their observations on the opening decision of 8 October 2008 and their observations of 5 May 2009. Secondly, the fact that the questions put in the request for information of 29 November 2011 concerned inter alia but not solely the costs of liquidation of Sernam, an issue which was put to the side three months later at the time of adoption of the contested decision, is not sufficient to establish an infringement of the principle to act within a reasonable time, inasmuch as the Commission did not remain inactive and was entitled to further its analysis of the matter.
It follows that the second complaint must be rejected and that, accordingly, there are no grounds for finding an infringement of a right to have one’s case handled within a reasonable time.
The third complaint: infringement of the principle of legal certainty, which requires the Commission to proceed with diligence and infringement of Article 41(1) of the Charter of Fundamental Rights
Firstly, the applicant submits that the excessive length of the procedure infringes Article 41(1) of the Charter of Fundamental Rights. In that regard, it states in the reply that that provision, read in conjunction with Article 52(3) of the Charter, requires that effective remedies be guaranteed in cases where there has been infringement of a fundamental right, such as the right to a hearing within a reasonable time. A waiver of any sanctions and a stay of proceedings would, in the applicant’s submission, be one of the possible ways of eradicating the consequences of the infringement of the principle of having a case handled within a reasonable time for the purposes of Article 41 of the Charter of Fundamental Rights.
It is apparent from paragraph 409 above that in the present case there are no grounds for finding that there has been an infringement of the right to have one’s case handled within a reasonable time. Accordingly, the complaint alleging infringement of Article 41(1) of the Charter of Fundamental Rights, read in conjunction with Article 52(3) thereof, must also be rejected.
Secondly, the applicant submits that the excessive length of the procedure undermined the principle of legal certainty, which requires the Commission to act with diligence.
According to the case-law, the principle of legal certainty requires EU legal rules to be clear and precise in order that interested parties can ascertain their position in situations and legal relationships governed by EU law (see judgment of 30 April 2014 in Tisza Erőmű v Commission,
T‑468/08
,
EU:T:2014:235
, paragraph
and the case-law cited).
As the applicant confines itself to alleging that the length of the procedure undermined the principle of legal certainty, without putting forward any specific argument, it is apparent from paragraph 409 above that this complaint must be rejected, inasmuch as there is nothing in the case file to indicate that the Commission infringed its obligation to act within a reasonable time.
It should be noted in that regard that the applicant had the assurance, since the opening decision of 16 July 2008, that a final decision was going to be taken by the Commission on the questions of compliance with the conditions of the Sernam 2 Decision, repayment of the EUR 41 million in aid declared incompatible by the Sernam 2 Decision and new State aid. It cannot, therefore, argue that the EU legal rules governing the matter were not clear and precise.
Should the applicant’s intention, in expressing its surprise at the fact that the questions put concerned only the costs of liquidation of Sernam, an issue which was subsequently put to the side, be to allege an infringement of the principle of legal certainty, suffice it to note that this kind of request for information, such as the one of 14 March 2006, does not infringe the principle of legal certainty any more than the principle of legitimate expectations, and that it is apparent from paragraphs 376 to 379 above, as it was part of the formal investigation procedure and that, although the applicant had the assurance that a decision was going to be taken concerning inter alia the categorisation of the measures of the memorandum of understanding of 21 July 2005 in the light of Article 107(1) TFEU, it could not request to know in advance what the Commission’s legal assessment would ultimately be in respect of those measures.
Therefore, the third complaint must be dismissed.
It follows that the third plea must be rejected as unfounded.
It is apparent from the foregoing that the action must be dismissed in its entirety, without its being necessary to rule beforehand on its admissibility by way of procedural economy (judgments of 26 February 2002 in Council v Boehringer,
C‑23/00 P
, ECR,
EU:C:2002:118
, paragraphs
and
, and
Regione autonoma della Sardegna
v
Commission
, cited in paragraph 343 above,
EU:T:2005:219
, paragraph
).
Costs
Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the Commission’s costs, in accordance with the form of order sought by the Commission.
In accordance with Article 138(1) of the Rules of Procedure, the French Republic must be ordered to bear its own costs.
Under Article 138(3) of the Rules of Procedure, Mory and Mory Team must be ordered to bear their own costs.

On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:

1.
Dismisses the action of Société nationale des chemins de fer français (SNCF);

2.
Orders SNCF to pay its own costs and to pay those incurred by the European Commission;

3.
Orders the French Republic to bear its own costs;

4.
Orders Mory and Mory Team to bear their own costs.

Van der Woude
Wiszniewska-Białecka
Ulloa Rubio
Delivered in open court in Luxembourg on 17 December 2015.
Table of contents

Background to the dispute

1. The applicant and Sernam at the time of the facts

2. The Sernam 1 decision

3. The Sernam 2 Decision

4. The en bloc transfer of Sernam’s assets to Financière Sernam and the following events

5. The procedure leading to the adoption of the contested decision

6. The contested decision

The misuse of the State aid authorised by the Sernam 2 Decision

Recovery of the EUR 41 million of aid

The new aid granted to Sernam Xpress-Financière Sernam

7. Facts subsequent to the contested decision

Procedure and forms of order sought

Law

1. The fourth plea: errors of law and of fact on the part of the Commission in its finding that the transfer en bloc of Sernam’s assets had not complied with the conditions laid down in Article 3(2) of the Sernam 2 Decision

The first part: errors of law and of fact on the part of the Commission in its finding, in recitals 97 and 98 of the contested decision, that the transfer en bloc of Sernam’s assets had not taken place on 30 June 2005

The second part: errors of law and of fact on the part of the Commission in its finding, in recitals 99 to 102 of the contested decision, that the transfer en bloc of Sernam’s assets at a negative price did not constitute a sale

The third part: errors of law and of fact on the part of the Commission in its finding, in recitals 103 to 116 of the contested decision, that the operation constituted a transfer of Sernam ‘in its entirety’ (assets and liabilities)

The first complaint: the Commission found, incorrectly, in recitals 103 and 113 to 116 of the contested decision, that the transfer completed by the applicant was not limited to the assets, but comprised Sernam in its entirety (assets and liabilities)

– The first argument: the Commission misread Article 3(2) of the Sernam 2 Decision, in presupposing that the sale of Sernam’s assets en bloc covered solely Sernam’s assets and excluded the liabilities

– The second argument: the constraints under national law obliged the applicant to add certain of Sernam’s liabilities to its assets (with the exception of the financial liabilities)

– The third argument: the transfer did not, in reality, cover Sernam ‘in its entirety’ (assets and liabilities)

The second complaint: the Commission found, incorrectly, in recitals 108 to 112 and 124 of the contested decision, that the transfer consisted in an intra-group transfer en bloc of assets and liabilities, followed by a sale of shares (share deal) in the recipient subsidiary

The fourth part: error of law on the part of the Commission in its finding, in recital 117 of the contested decision, that the transfer was not limited to Sernam’s assets, but had been increased by EUR 57 million net

The fifth part: errors of law and of fact on the part of the Commission in its finding, in recitals 118 and 119 of the contested decision, that the sale of the assets en bloc of Sernam had not taken place through a transparent and open procedure

The first complaint: the management team participated in the tendering procedure from the beginning

The second complaint: the validity of the offer from Financière Sernam, even though it had not yet been created at the time the management team’s offer was submitted

The third complaint: all candidates had the opportunity to submit an offer, were treated equally and had access to the same information and benefited from identical conditions in terms of time limits

The fourth complaint: according to the case-law, the fact that a sale of assets has been preceded by unsuccessful attempts with another company, as in the present case, is ‘reason to suggest that the procedure followed was sufficiently open and transparent’

The French Republic’s complaint: the negative price of EUR 57 million was affirmed as a market price by the expert reports submitted

The sixth part: errors of law and of fact on the part of the Commission in its finding, in recitals 121 to 123 of the contested decision, that the purpose of a sale of the assets had not been observed

The first complaint: the purpose of the sale of the assets en bloc was observed, because Sernam’s economic activity was interrupted

The second complaint: the concept of ‘sale of the assets en bloc’ in reality allowed Sernam to continue its activity

Conclusions on the fourth plea

2. The fifth plea: error of law on the part of Commission in its finding that the obligation to recover the EUR 41 million in State aid declared incompatible by the Sernam 2 Decision had been transferred to Financière Sernam and its subsidiaries

The first complaint: none of the criteria of economic continuity is met in the present case

Subject matter of the transfer

Identity of the shareholders or owners of the acquiring undertaking and of the original undertaking

The moment at which the transfer was carried out

The economic logic of the transaction

The transfer price

The second complaint: the entry of EUR 41 million in the liabilities of the liquidation account of Sernam complied with Article 4 of the Sernam 2 Decision

3. The sixth plea: error of law on the part of the Commission in its finding that the measures provided for by the memorandum of understanding of 21 July 2005 concerning the transfer en bloc of Sernam’s assets constituted new State aid in favour of Sernam Xpress-Financière Sernam

The first part: the Commission erred in law in declaring the private investor test to be inapplicable to the present case

The first complaint, directed at recital 155 of the contested decision: the sale of the assets en bloc did not constitute an alternative to the compensatory measures set out in Article 3(1) of the Sernam 2 Decision

The second complaint, directed at recital 155 of the contested decision: the implementation of a compensatory measure is the responsibility of the recipient of the aid, or of the State shareholder, but not the State as a public authority

The second part: none of the disputed measures constitutes an advantage in favour of Sernam Xpress-Financière Sernam

The guarantee relating to the development of the Valenton site and the guarantee relating to the increase in rent for the new operating sites

The guarantee of continuity of the TBE and of access thereto

The three-year extension of the guarantee of re-employment of the employees within the applicant’s group

4. The applicant’s first plea in law and the French Republic’s plea in law, alleging infringement of their respective rights of defence

The French Republic’s plea alleging infringement of its rights of defence

The applicant’s first plea: infringement of its rights of defence

5. The second plea: infringement of the principle of the protection of legitimate expectations

The first complaint: Article 3(2) and Article 4 of the Sernam 2 Decision led the applicant to entertain well-founded expectations that it was authorised to proceed as it did at the time of the transfer of the assets and at the time of the recovery of the EUR 41 million

The second complaint: the content of the request for information on the details of Sernam’s liquidation costs dated 14 March 2006

The third complaint: the Commission made an error in recitals 126 and 177 to 182 of the contested decision

6. The third plea: infringement of the duty to act within a reasonable time and of the principle of legal certainty

The first complaint: the three-year period that passed between the sale of Sernam’s assets en bloc and the opening of the formal investigation procedure on 16 July 2008

The second complaint: the time period of more than three years which passed between the opening of the formal investigation procedure on 16 July 2008, and the request for information of 29 November 2011

The third complaint: infringement of the principle of legal certainty, which requires the Commission to proceed with diligence and infringement of Article 41(1) of the Charter of Fundamental Rights

Costs
(
*1
)	Language of the case: French.