Case T‑242/12
Société nationale des chemins de fer français (SNCF)
v
European Commission
(State aid — Aid measures implemented by France in favour of Sernam SCS — Aid measures for restructuring and recapitalising, guarantees and debt write-off by SNCF in favour of Sernam — Decision declaring the aid measures incompatible with the internal market — Misuse of aid — Recovery — Economic continuity — Private investor criterion)
Summary — Judgment of the General Court (Seventh Chamber), 17 December 2015
1. State aid — Aid authorised by the Commission — Misuse by the beneficiary — Burden of proof on the Commission
(Art. 108(2) TFEU; Council Regulation No 659/1999, Arts 1(g), and 16)
2. EU law — Interpretation — Acts of the institutions — Statement of reasons — Account taken in the interpretation of the operative part
3. State aid — Commission decision — Assessment of legality — Commission’s decision-making practice — Irrelevant
(Art. 108(2) TFEU)
4. Actions for annulment — Subject-matter — Decision based on several pillars of reasoning, each sufficient to justify the operative part — Decision on State aid — Illegality affecting only one pillar of reasoning — Annulment of the decision only where that illegality influencing the operative part
(Art. 263 TFEU)
5. State aid — Recovery of unlawful aid — Undertaking in receipt of aid becoming insolvent —Constitution of a new undertaking to carry on its business — Repayment incumbent on the new undertaking — Conditions — Criterion of ‘economic continuity’ of the undertaking — Elements to be taken into consideration
(Art. 108(2) TFEU)
6. State aid — Recovery of unlawful aid — Determination of the debtor where assets transferred — Criterion of ‘economic continuity’ of the undertaking — Elements to be taken into consideration
(Art. 108(2) TFEU)
7. State aid — Recovery of unlawful aid — Determination of the debtor where shares sold —Beneficiary of the competitive advantage — Liability of the undertaking which sold its shares where the legal personality and continuity of the subsidised activities retained
(Art. 108(2) TFEU)
8. State aid — Concept — Assessment according to the criterion of the private investor — State shareholder of an undertaking — State acting as a public authority — Distinction as regards application of the private investor criterion
(Art. 107(1) TFEU)
9. State aid — Concept — Aid granted in the form of a guarantee — Included
(Art. 107(1) TFEU; Commission Notice 2000/C 71/07, point 2.1.2)
10. State aid — Effect on trade between Member States — Adverse effect on competition — Criteria for assessment — Small size and limited extent of aid not a priori excluding the possibility of trade being affected
(Art. 107(1) TFEU)
11. Judicial proceedings — Intervention — Disputed admissibility of a plea relied on by an intervener taking into account its dubious connection with the subject-matter of the case — Plea having, in any event, to be rejected on another ground or as unfounded — Possibility for the Court to dismiss without ruling on its admissibility
(Rules of Procedure of the General Court, Arts 142 and 144)
12. State aid — Commission decision to open a formal investigation procedure into a State measure — Subject-matter and scope of the procedure — Obligation to state reasons — Scope
(Art. 108(2) TFEU; Council Regulation No 659/1999, Art. 6)
13. State aid — Examination by the Commission — Decision to open the formal investigation procedure under Article 108(2) TFEU — Evolution of the Commission’s position at the conclusion of the procedure
(Art. 108(2) TFEU; Council Regulation No 659/1999, Art. 7)
14. State aid — Administrative procedure — Obligation of the Commission to give notice to the interested parties to submit their comments — Exclusion of those parties from rights of defence — Right of the party paying the aid to be sufficiently associated with the procedure
(Art. 108(2) TFEU)
15. EU law — Principles — Protection of legitimate expectations — Conditions
16. Competition — Administrative procedure — Obligations of the Commission — Duty to act within a reasonable time — Infringement — Consequences
(Art. 108(2) TFEU; Charter of Fundamental Rights of the European Union, Art. 41(1))
17. State aid — Examination by the Commission — Duty to act within a reasonable time — Criteria for assessment — Principle of sound administration — Principle of legal certainty — No infringement
(Art. 108(2) TFEU; Charter of Fundamental Rights of the European Union, Arts 41(1), and 52(3); Council Regulation No 659/1999, Art. 7(6))
1. See the text of the decision.
(see para. 83)
2. See the text of the decision.
(see paras 87, 114)
3. See the text of the decision.
(see paras 121, 124)
4. See the text of the decision.
(see para. 230)
5. See the text of the decision.
(see paras 234, 273, 277)
6. See the text of the decision.
(see para. 235)
7. In State aid matters, the sale of shares in a company which has received unlawful aid by a shareholder to a third party has no bearing on the recovery obligation. If the undertaking to which unlawful State aid has been granted retains its legal personality and continues to carry out, for its own account, the activities subsidised by the State aid, it is normally this undertaking that retains the competitive advantage connected with that aid and it is therefore this undertaking that must be required to repay an amount equal to that aid. The purchaser cannot therefore be required to repay such aid.
(see para. 267)
8. It follows from the principle of equal treatment of public undertakings and private undertakings that capital placed directly or indirectly at the disposal of an undertaking by the State in circumstances which correspond to normal market conditions cannot be regarded as State aid. In the case of public undertakings, that assessment is made by applying, in principle, the private investor test.
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. Interventions by the State which are intended to honour its obligations as a public authority cannot be compared to those of a private investor in a market economy. In particular, the nature and subject-matter of that measure are relevant in that regard, as is its context, the objective pursued and the rules to which the measure is subject.
(see paras 291, 292)
9. See the text of the decision.
(see paras 325, 332)
10. See the text of the decision.
(see para. 331)
11. See the text of the decision.
(see para. 343)
12. See the text of the decision.
(see paras 348, 349, 353, 357)
13. See the text of the decision.
(see para. 350)
14. See the text of the decision.
(see paras 361, 362)
15. See the text of the decision.
(see para. 370)
16. See the text of the decision.
(see paras 392, 393)
17. See the text of the decision.
(see paras 395-397, 411, 415, 416)