Case C‑127/16 P

SNCF Mobilités

v

European Commission

(Appeal — State aid — Aid implemented by the French Republic in favour of Sernam — Restructuring and recapitalisation aid, guarantees and waiving of Sernam’s financial debts by SNCF — Decision declaring that aid incompatible with the internal market and ordering its recovery — Sale of assets en bloc — Concept of ‘sale’ — Confusion between object and price of the sale of assets en bloc — Open and transparent procedure — Private investor test — Application of that principle to an assignment of assets en bloc — Compensatory measures)

Summary — Judgment of the Court (First Chamber), 7 March 2018

State aid—Concept—Assessment according to the criterion of the private investor—State shareholder of an undertaking—State acting as a public authority—Distinction as regards application of the private investor criterion—Information needed for an assessment—Inapplicability of the criterion to compensatory measures which do not correspond to the normal conditions on the market

State aid—Concept—Assessment according to the criterion of the private investor—State shareholder of an undertaking—State acting as a public authority—Distinction as regards application of the private investor criterion—Transfer of assets en bloc at market value and through a tendering procedure—Characterisation of the application of that criterion—Precluded

State aid—Concept—Assessment according to the criterion of the private investor—Transfer of an undertaking—Determination of a price—Preference to be given to the result of an open, transparent and unconditional tendering procedure rather than to an export report—Assessment of openness and transparency

See the text of the decision. (see paras 34, 35)

See the text of the decision. (see para. 67)

In State aid cases, the question whether a tendering procedure has been open and transparent is determined on the basis of a body of indicia specific to the circumstances of each case. (see para. 68)

The illegal 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 the case of a transfer of assets, such continuity between companies who are parties to a transfer of assets is assessed in the light of the subject matter of the transfer (assets and liabilities, maintenance of the workforce, bundled assets), the transfer price, the identity of the shareholders or owners of the acquiring undertaking and the original undertaking, the moment when the transfer takes place (after the commencement of the investigation, opening of the procedure or the final decision) and also the economic logic of the operation. As regards the criterion of the identity of the shareholders, although the greatest weight should be given to the economic reality of the State aid, the legal form it takes may also turn out to be relevant for assessing that economic reality. In particular, the question of the transfer of the aid is assessed differently, depending on whether it forms part of a sale of shares or of a sale of all or part of the assets. (see paras 106, 108, 112)

In State aid cases, as regards the application of the private investor test, the question of the applicability of that test must be distinguished from the question of its application. As regards the application of that test, it is established that the market price is the highest price which a private investor acting under normal competitive conditions is ready to pay for a company in the situation it is in and, where a public authority proceeds to sell an undertaking belonging to it by way of an open, transparent and unconditional tender procedure, it can be presumed that the market price corresponds to the highest offer. However, the applicability of the informed private investor test cannot be inferred from a condition that usually forms part of its application. Therefore, a transfer at market price and through an open and transparent tendering procedure does not necessarily lead to the conclusion that that test has been applied. (see paras 137, 140, 141)