INHALT

2012/398/EU: Commission Decision of 9 March 2012 on State aid SA.12522 (C 37/08) — France — Enforcing the Sernam 2 Decision (notified under document C(2012) 1616) Text with EEA relevance

COMMISSION DECISION
of 9 March 2012
on State aid SA.12522 (C 37/08) — France — Enforcing the
Sernam 2 Decision
(notified under document C(2012) 1616)
(Only the French text is authentic)
(Text with EEA relevance)
(2012/398/EU)
1.
PROCEDURE
1.1. GENERAL PROCEDURAL CONTEXT
1.2. NATIONAL PROCEDURAL CONTEXT
2.
DESCRIPTION
2.1. SERNAM
2.2. THE SERNAM 1 DECISION OF 23 MAY 2001
2.3. THE SERNAM 2 DECISION OF 20 OCTOBER 2004
‘Article 3
2.4. THE TRANSFER OF THE ACTIVITIES OF SERNAM SA TO FINANCIÈRE SERNAM
2.4.1.
Effective date of the operations for the transfer of Sernam’s activities to Financière Sernam
2.4.2.
The various operations for the transfer of Sernam’s activities to Financière Sernam
2.5. REASONS FOR INITIATING THE FORMAL INVESTIGATION PROCEDURE
2.6. COMMENTS BY INTERESTED PARTIES
2.6.1.
Comments by the complainants
2.6.2.
Comments by interested parties considering that the Sernam 2 Decision was duly complied with
2.6.2.1.
Comments by SNCF
2.6.2.2.
Comments by Butler Capital Partners
2.7. COMMENTS BY FRANCE
2.7.1.
Concerning compliance with the Sernam 2 Decision
2.7.1.1.
Concerning observance of the deadline for the sale
2.7.1.2.
Concerning the selling price
2.7.1.3.
Concerning the sale of assets
2.7.1.4.
Concerning the open and transparent nature of the selection process
2.7.1.5.
Concerning legitimate expectations
2.7.2.
Concerning the alleged manipulations carried out at the time of the valuation of the assets and liabilities transferred from Sernam SA to Sernam Xpress
2.7.3.
Concerning the absence of obligation to recover the aid amounting to EUR 41 million from Sernam Xpress
2.7.3.1.
Concerning the breakdown of the operation into intra-group transfer and share deal
2.7.3.2.
Concerning compliance with the conditions of the CDA and SMI judgments
2.7.4.
Concerning the new aid to Sernam Xpress and/or Financière Sernam
3.
ASSESSMENT BY THE COMMISSION
3.1. REMINDER OF REASONING BEHIND ARTICLE 3 OF THE SERNAM 2 DECISION
3.2. MISUSE OF THE AID AUTHORISED BY THE SERNAM 2 DECISION
3.2.1.
The transfer of the activities was not completed by 30 June 2005
3.2.2.
The transfer of activities does not constitute a sale
(27)
3.2.3.
The transfer of the activities is not a sale of assts but a transfer of Sernam SA in its entirety (assets and liabilities)
3.2.3.1.
The transfer consists 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
3.2.3.2.
The transfer is not limited to the assets, but comprises Sernam SA in its entirety (assets and liabilities)
3.2.4.
The transfer is not limited to the assets owned by Sernam SA at the time of the Sernam 2 Decision, but were increased by EUR 59 million
3.2.5.
The transfer of the business did not take place through a transparent and open procedure
3.2.6.
The ultimate purpose of a sale of assets was not observed
3.2.7.
The arguments presented by France do not allow compliance with Article 3(2) of the Sernam 2 Decision to be shown
3.2.8.
Conclusion: France failed to comply with Article 3 of the Sernam 2 Decision and misused the aid of EUR 503 million
3.2.9.
The aid of EUR 503 million is incompatible with the internal market
3.3. THE RECOVERY OF THE AID OF EUR 41 MILLION
3.4. CONCERNING THE NEW AID GRANTED TO SERNAM XPRESS
3.4.1.
Concerning the EUR 57 million capital injection by SNCF in Sernam SA
3.4.2.
Concerning the EUR 2 million capital injection by SNCF in Sernam Xpress
3.4.3.
Concerning the write-off of Sernam SA’s debts to SNCF
3.4.4.
Concerning the guarantees granted by SNCF
3.4.5.
Concerning the selling price
3.4.6.
Conclusion on the presence of new aid
3.4.7.
Incompatibility with the internal market and recovery
3.5. CONCERNING THE CANCELLATION CLAUSE
3.6. CONCERNING LEGITIMATE EXPECTATIONS
4.
RECOVERY
Article 1
Article 2
Article 3
Article 4
Article 5