JUDGMENT OF THE GENERAL COURT (Seventh Chamber)

17 December 2015 ( *1 )

‛State aid — Aid implemented by France in favour of Sernam SCS — Restructuring and recapitalisation aid, guarantees and write-off of Sernam SA’s financial debts by SNCF — Decision declaring the aid incompatible with the internal market — Misuse of the aid — Recovery — Economic continuity — Private investor test’

In Case T‑242/12,

Société nationale des chemins de fer français (SNCF), established in Paris (France), represented by P. Beurier, O. Billard and V. Landes, lawyers,

applicant,

supported by

French Republic, represented initially by D. Colas and J. Gstalter, and subsequently by D. Colas and J. Rossi and lastly by D. Colas and J. Bousin, acting as Agents,

intervener,

v

European Commission, represented by T. Maxian Rusche and B. Stromsky, acting as Agents,

defendant,

supported by

Mory SA, in liquidation, established in Pantin (France),

and

Mory Team, in liquidation, established in Pantin,

represented by B. Vatier and F. Loubières, lawyers,

interveners,

APPLICATION for annulment of Commission Decision 2012/398/EU of 9 March 2012 on State aid SA.12522 (C 37/08) — France — Enforcing the Sernam 2 Decision (OJ 2012 L 195, p. 19),

THE GENERAL COURT (Seventh Chamber),

composed of M. van der Woude, President, I. Wiszniewska-Białecka and I. Ulloa Rubio (Rapporteur), Judges,

Registrar: S. Bukšek Tomac, Administrator,

having regard to the written part of the procedure and further to the hearing on 12 February 2015,

gives the following

Judgment

Background to the dispute

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

1 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.

2 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.

3 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.

4 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.

5 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

6 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’.

7 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

8 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.

9 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).

10 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.

11 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.

12 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.

13 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.

14 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

15 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.

16 With the assistance of a bank (‘Bank X’), the applicant organised a call for tenders. Thirty-four groups were contacted.

17 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.

18 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’).

19 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.

20 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.

21 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’).

22 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.

23 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.

24 At the time of the transfer, the applicant also granted guarantees.

25 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.

26 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.

27 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).

28 In 2006 an investment fund took a 51.8% stake in the capital of Sernam Xpress.

29 In May 2011, Sernam Xpress contributed the Sernam brand to its operating subsidiary, Sernam Services.

30 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’).

31 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).

32 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.

33 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

34 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.

35 On 22 February 2006, the first complainant brought proceedings for failure to act against the Commission.

36 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’).

37 The two complainants essentially considered that the Sernam 2 Decision had been incorrectly applied.

38 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.

39 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).

40 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

41 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

42 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.

43 The Commission considered that numerous requirements laid down in Article 3(2) of the Sernam 2 Decision had not been observed.

44 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.

45 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.

46 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).

47 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.

48 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.

49 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.

50 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.

51 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

52 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’).

53 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.

54 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.

55 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

56 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.

57 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.

58 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.

59 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.

60 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.

61 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.

62 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

63 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.

64 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.

65 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

66 By application lodged at the Registry of the General Court on 4 June 2012, the applicant brought the present action.

67 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.

68 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.

69 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.

70 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.

71 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.

72 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.

73 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.

74 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.

75 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.

76 The parties presented oral argument and replied to the questions put by the Court at the hearing which took place on 12 February 2015.

77 The applicant, supported by the French Republic, claims that the Court should: — annul the contested decision; — order the Commission to pay the costs.

78 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.

79 Mory and Mory Team contend that the Court should dismiss the action as inadmissible or, in the alternative, as unfounded.

Law

80 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.

81 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

82 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.

83 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 86).

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

84 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.

85 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.

86 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 12, and 21 February 2013 in RVS Levensverzekeringen, C‑243/11, ECR, EU:C:2013:85, paragraph 23).

87 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 21).

88 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’.

89 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)’.

90 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.

91 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.

92 Therefore, the applicant’s second argument concerning the exact time at which the ‘sale’ was concluded as a matter of French law is ineffective.

93 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

94 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.

95 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).

96 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.

97 In that regard the applicant, supported by the French Republic, puts forward, in essence, three arguments.

98 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.

99 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.

100 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.

101 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.

102 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.

103 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.

104 Consequently, the Commission’s formalistic arguments based on French law must be rejected.

105 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.

106 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.

107 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).

108 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.

109 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)

110 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)

111 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

112 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.

113 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’.

114 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.

115 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.’

116 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).’

117 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.

118 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.

119 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.

120 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 52 above (EU:C:2004:238, paragraphs 68 and 70), and the CDA judgment, cited in paragraph 52 above (EU:T:2005:364, paragraph 73).

121 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 21).

122 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.

123 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).

124 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.

125 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)

126 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.

127 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.

128 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.

129 Consequently, the applicant cannot rely here on constraints under national law in order to circumvent the condition it chose.

130 Consequently, the second argument must be rejected.

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

131 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.

132 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.’

133 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’.

134 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.

135 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’.

136 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.

137 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.

138 The third argument must therefore be rejected.

139 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

140 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.

141 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.

142 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.

143 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.

144 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]’.

145 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’.

146 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.

147 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.

148 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.

149 In the light of the foregoing, the second complaint must also be rejected.

150 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

151 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.

152 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.

153 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.

154 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.

155 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.

156 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.

157 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.

158 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.

159 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

160 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.

161 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

162 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.

163 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.

164 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.’

165 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.

166 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.

167 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).

168 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.

169 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’.

170 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.

171 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.

172 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.

173 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.

174 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.

175 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

176 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.

177 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.

178 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

179 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.

180 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.

181 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’

182 The applicant submits that, in the SMI judgment, cited in paragraph 52 above (EU:C:2004:238), and the CDA judgment, cited in paragraph 52 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 52 above, EU:C:2004:238, paragraph 95, and the CDA judgment, cited in paragraph 52 above, EU:T:2005:364, paragraph 110). 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.

183 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.

184 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

185 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.

186 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.

187 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

188 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

189 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.

190 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.

191 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.

192 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.

193 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)’.

194 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.

195 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.

196 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.

197 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.

198 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.

199 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.

200 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.

201 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.

202 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.

203 Fourthly, the applicant submits that Sernam’s market shares were ceded to Financière Sernam, who could continue the activity with Sernam’s assets.

204 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.

205 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’.

206 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’.

207 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]’.

208 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.

209 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.

210 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.

211 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

212 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.

213 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.