2012/398/EU: Commission Decision of 9 March 2012 on State aid SA.12522 (C 37/08) ... (32012D0398)
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
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