SNCF Mobilités, formerly Société nationale des chemins de fer français (SNCF) v European Commission.
Date: 2018-03-07
23


Moreover, at the reply stage, the applicant criticises the Commission for arguing that the purpose of the transfer of Sernam’s assets en bloc is to interrupt its activities, whereas the Commission itself explained in the cases that gave rise to the judgments of 29 April 2004, Germany v Commission (C‑277/00, EU:C:2004:238, paragraphs 68 to 70), and of 19 October 2005, CDA Datenträger Albrechts v Commission (T‑324/00, EU:T:2005:364, paragraph 73) that the effect of such a transfer was the continuation of an undertaking’s economic activity
26


The Court of Justice’s case-law restricts the use of the interpretation of the operative part of an act in the light of the reasons that led to its adoption in the event that the operative part is not sufficiently explicit (judgment of 19 June 1980, Roudolff, 803/79, EU:C:1980:166, paragraph 7). In applying that principle of interpretation in the present case, when the wording of Article 3(2) of the Sernam 2 Decision does not so warrant, the General Court distorted that decision.
29


It is appropriate, at the outset, to reject the criticism of the methods of interpretation applied by the General Court. In paragraphs 86 and 87 of the judgment under appeal, it recalled, in support of its method, that according to the Court of Justice’s 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 (see, inter alia, judgment of 27 September 2017, Nintendo, C‑24/16 and C‑25/16, EU:C:2017:724, paragraph 70 and the case-law cited) and, moreover, the operative part of a Union 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 25 October 2011, eDate Advertising and Others, C‑509/09 and C‑161/10, EU:C:2011:685, paragraph 55 and the case-law cited).
34


With regard to the obligation to provide an adequate statement of reasons, the Court has consistently held that the statement of reasons on which a judgment is based must clearly and unequivocally disclose the General Court’s thinking, so that the persons concerned can be apprised of the justification for the decision taken and the Court of Justice can exercise its power of review (see, inter alia, judgment of 4 April 2017, European Ombudsman v Staelen, C‑337/15 P, EU:C:2017:256, paragraph 83 and the case-law cited).
38


Moreover, the argument to the effect that the position maintained by the Commission in its response differs from what it defended in the cases that gave rise to the judgments of 29 April 2004, Germany v Commission (C‑277/00, EU:C:2004:238, paragraphs 68 to 70), and of 19 October 2005, CDA Datenträger Albrechts v Commission (T‑324/00, EU:T:2005:364, paragraph 73), which fails to show how the General Court made an error of law in its assessment of the purpose of the Article 3(2) of the Sernam 2 Decision, must be rejected as inadmissible (see, by analogy, judgment of 14 December 2016, SV Capital v ABE, C‑577/15 P, EU:C:2016:947, paragraph 69).
63


In its decision-making practice, the Commission requires in that regard that all parties, solicited or unsolicited, who may be interested by the acquisition in question be given the opportunity to submit a bid and be provided with identical informational opportunities and timeline terms. Moreover, in the judgments of 29 April 2004, Germany v Commission (C‑277/00, EU:C:2004:238, paragraph 95), and of 19 October 2005, CDA Datenträger Albrechts v Commission (T‑324/00, EU:T:2005:364, paragraph 73), it was held that the fact that a sale has not taken place immediately, but has been preceded by unsuccessful attempts with another company, was an indicator that the procedure was not sufficiently open and transparent.
67


Next, the practice followed by the Commission in its decisions or its guidelines, even if that practice were to support the applicant’s argument cannot, in any event, bind the Court in its interpretation of the EU rules (see, to that effect, judgment of 1 October 2015, Electrabel and Dunamenti Erőmű v Commission, C‑357/14 P, EU:C:2015:642, paragraph 68).
68


In any event, as correctly observed by the General Court in paragraph 183 of the judgment under appeal, according the Court’s case-law, the question whether a tendering procedure has been open and transparent is determined on the basis of a body of indicia specific to the circumstances of each case (see, to that effect, judgment of 29 April 2004, Germany v Commission, C‑277/00, EU:C:2004:238, paragraph 95).
98


Next, as regards the transfer price, the applicant criticises the General Court for having refused, in paragraph 255 of the judgment under appeal, to take into consideration the market price paid for Sernam’s assets, when that criterion is, inter alia on the basis of the judgments of 29 April 2004, Germany v Commission (C‑277/00, EU:C:2004:238, paragraphs 86), and of 19 October 2005, CDA Datenträger Albrechts v Commission (T‑324/00, EU:T:2005:364, paragraphs 97 to 99) one of the leading criteria for finding an absence of economic continuity.
104


In must be remembered in that regard that, according to settled case-law, the main purpose of the repayment of unlawfully paid State aid is to eliminate the distortion of competition caused by the competitive advantage afforded (see, inter alia, judgment of 1 October 2015, Electrabel and Dunamenti Erőmű v Commission, C‑357/14 P, EU:C:2015:642, paragraph 111 and the case-law cited). Restoring the situation prior to the payment of aid which was unlawful or incompatible with the internal market is a necessary requirement for preserving the effectiveness of the provisions of the Treaties concerning State aid (judgment of 20 September 2001, Banks, C‑390/98, EU:C:2001:456, paragraph 75).
105


In that light, it should be recalled that, according to Article 107(1) TFEU, save as otherwise provided in the Treaties, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods is, in so far as it affects trade between Member States, incompatible with the internal market (see, inter alia, judgment of 21 December 2016, Commission v Aer Lingus and Ryanair Designated Activity, C‑164/15 P and C‑165/15 P, EU:C:2016:990, paragraph 39).
106


As observed by the General Court in paragraph 277 of the judgment under appeal, the illegal aid must be recovered from the company which carries on the economic activity of the undertaking which initially benefited from the advantage associated with the grant of State aid and which, therefore, retains the actual benefit thereof (see, to that effect, judgment of 24 January 2013, Commission v Spain, C‑529/09, EU:C:2013:31, paragraph 109 and the case-law cited).
108


As regards, in the second place, alleged errors of law in the analysis of the economic continuity, it must be remembered that such continuity between companies who are parties to a transfer of assets is assessed in the light of the subject matter of the transfer (assets and liabilities, maintenance of the workforce, bundled assets), the transfer price, the identity of the shareholders or owners of the acquiring undertaking and the original undertaking, the moment when the transfer takes place (after the commencement of the investigation, opening of the procedure or the final decision) and also the economic logic of the operation (see, inter alia, judgment of 8 May 2003, Italy and SIM 2 Multimedia v Commission, C‑328/99 and C‑399/00, EU:C:2003:252, paragraph 78).
112


Thirdly, as regards the error of law alleged by the applicant regarding the application of the criterion of the identity of the shareholders, although the greatest weight should be given to the economic reality of the State aid, the legal form it takes may also turn out to be relevant for assessing that economic reality. In particular, the question of the transfer of the aid is assessed differently, depending on whether it forms part of a sale of shares or of a sale of all or part of the assets (see, to that effect, judgment of 29 April 2004, Germany v Commission, C‑277/00, EU:C:2004:238, paragraphs 78 and 84).
130


Secondly, the General Court distorted the Sernam 2 Decision in finding, in paragraph 301 of the judgment under appeal, that ‘[s]ince the condition relating to the sale of the assets en bloc excluded the liabilities, the possibility of obtaining a negative price in the present case was by definition precluded’. As the applicant also argued in support of the third part of the first ground of appeal and as set out in paragraphs 47 to 52 of the present judgment, in finding that the transfer of Sernam’s assets en bloc had to exclude all liabilities, the General Court distorted Article 3(2) of the Sernam 2 Decision, just as it did by adding a condition not imposed by the Sernam 2 Decision in having found that the price for transferring Sernam’s assets en bloc could not be negative. The terms of Article 3(2) of the Sernam 2 Decision refer only to a requirement of market price which, according to the case-law, may be negative, as is apparent from the judgments of 28 January 2003, Germany v Commission (C‑334/99, EU:C:2003:55, paragraph 133), and of 13 May 2015, Niki Luftfahrt v Commission (T‑511/09, EU:T:2015:284, paragraph 139).
137


It should be borne in mind in that regard that the question of the applicability of that test must be distinguished from the question of its application (see, inter alia, judgment of 3 April 2014, Commission v Netherlands and ING Groep, C‑224/12 P, EU:C:2014:213, paragraphs 29 and 33).
138


As rightly observed by the General Court in paragraph 292 of the judgment under appeal, the applicability of the private investor test ultimately depends on the Member State concerned having conferred, in its capacity as shareholder and not in its capacity as public authority, an economic advantage on an undertaking belonging to it (see, inter alia, judgments of 5 June 2012, Commission v EDF, C‑124/10 P, EU:C:2012:318, paragraph 81, and of 3 April 2014, Commission v Netherlands and ING Groep, C‑224/12 P, EU:C:2014:213, paragraph 31).
139


As the intervention of the public entity in its capacity as shareholder has been established, and therefore the applicability of the private investor as well, the private investor test is applied, next, in order to determine whether, because of its effects, the economic advantage granted, in whatever form, through State resources to a public undertaking distorts or threatens to distort competition and affects trade between Member States (judgment of 5 June 2012, Commission v EDF, C‑124/10 P, EU:C:2012:318, paragraph 89).
140


As regards the application of the private investor test, according to the Court’s settled case-law, the market price is the highest price which a private investor acting under normal competitive conditions is ready to pay for a company in the situation it is in and, where a public authority proceeds to sell an undertaking belonging to it by way of an open, transparent and unconditional tender procedure, it can be presumed that the market price corresponds to the highest offer (see, inter alia, judgments of 24 October 2013, Land Burgenland and Others v Commission, C‑214/12 P, C‑215/12 P and C‑223/12 P, EU:C:2013:682, paragraphs 92 and 94, and of 16 July 2015, BVVG, C‑39/14, EU:C:2015:470, paragraph 32).
150


It is moreover apparent from the Court’s case-law, including the judgments of 5 June 2012, Commission v EDF (C‑124/10 P, EU:C:2012:318, paragraph 78), and of 3 April 2014, Commission v Netherlands and ING Groep (C‑224/12 P, EU:C:2014:213, paragraphs 32 to 37), that that principle is mandatory and the Commission must apply it before being able to find that there is State aid on the basis of Article 107(1) TFEU.
156


Inasmuch as the applicant criticises the General Court for having ruled out the application of the private investor test, first of all, it should be borne in mind that, consistently with the case-law referred to in paragraph 138 of the present judgment, the applicability of that test depends on the Member State concerned acting in its capacity as shareholder and not in its capacity as a public authority. In that regard, it is for the Commission to make an overall assessment taking into account, in addition to the evidence provided by the Member State concerned, all other relevant evidence enabling it to determine whether the Member State took the measure in question in its capacity as shareholder or as a public authority (see, to that effect, judgments of 5 June 2012, Commission v EDF, C‑124/10 P, EU:C:2012:318, paragraph 86; of 24 October 2013, LandBurgenland and Others v Commission, C‑214/12 P, C‑215/12 P and C‑223/12 P, EU:C:2013:682, paragraph 60; and of 1 October 2015, Electrabel and Dunamenti Erőmű v Commission, C‑357/14 P, EU:C:2015:642, paragraph 102).
157


Next, it should be observed that, for the purpose of determining whether there is State aid, the private investor test can be used to determine whether the measures adopted by the Member State concerned satisfied an economic rationality test, so that a private investor might also accept them (see, inter alia, judgment of 3 April 2014, Commission v Netherlands and ING Groep, C‑224/12 P, EU:C:2014:213, paragraphs 36). Thus, under that test, the conditions which a measure must meet in order to be treated as ‘aid’ for the purposes of Article 107 TFEU are not met if the recipient public undertaking could, in circumstances which correspond to normal market conditions, obtain the same advantage as that which has been made available to it through State resources (see, inter alia, judgment of 4 September 2014, SNCM and France v Corsica Ferries France, C‑533/12 P and C‑536/12 P, EU:C:2014:2142, paragraph 30 and the case-law cited).
160


Although that test does not disregard the obligations by which economic operators are bound (see, to that effect, judgment of 4 September 2014, SNCM and France v Corsica Ferries France, C‑533/12 P and C‑536/12 P, EU:C:2014:2142, paragraph 33 and the case-law cited), the obligations which are normal market conditions must not be confused with those aimed at preventing distortions of competition in that market.