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21.7.2012 Official
Journal
of
the
European
Union L
195/19
COMMISSION DECISION
of 9 March 2012
on State aid No 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)
THE EUROPEAN COMMISSION,
(3) By
letter
dated
24
June
2005,
a
first
third
party
(‘the
first
complainant’) complained about the incorrect application
of the Sernam 2 Decision ( 5 ).
Having regard to the Treaty on the Functioning of the European
Union (TFEU), and in particular the first subparagraph of
Article 108(2) thereof (
(4) On
22
February
2006,
this
first
complainant
also

1 ),
brought proceedings for failure to act against the
Commission, in so far as the latter, at the time, had
taken no action on the complaint.
Having regard to the Agreement on the European Economic
Area, and in particular Article 62(1)(a) thereof,
(5) By
letter
dated
10
April
2006,
a
second
interested
party,
the Mory Group company (‘the second complainant’) also
complained to the Commission ( 6 ).
Having called on interested parties to submit their comments
pursuant to those provisions ( 2 ),
(6) The
two
complainants
essentially
considered
that
the
Sernam 2 Decision had been incorrectly applied and
asked the Commission to initiate a new formal investi
Whereas:
gation procedure on the application by France of the
Sernam 2 Decision.
1. PROCEDURE
(7) By
letter
dated
16
July
2008,
the
Commission
informed
1.1. GENERAL PROCEDURAL CONTEXT
France of its decision to initiate the procedure provided
for in Article 108(2) TFEU concerning the application by
(1) On
23
May
2001,
the
Commission
approved
aid
for
the
France of the Sernam 2 Decision (‘the opening decision’).
restructuring of SCS Sernam (limited partnership), which
The Commission in particular expressed doubts as to the
became Sernam SA in December 2001 (‘the Sernam 1
compatibility with the Sernam 2 Decision of France’s
Decision’) ( 3 ).
chosen arrangements purportedly to apply this
Decision, and the possibility that these arrangements
involve new State aid.
(2) On
20
October
2004,
the
Commission
adopted
a
final
decision in which it confirms that the aid approved
under the Sernam 1 Decision, amounting to EUR
(8) This
Commission
decision
to
initiate
the
procedure
was
503 million, is compatible with the internal market
published in the Official Journal of the European Union ( 7 ).
under certain conditions (‘the Sernam 2 Decision’) ( 4 ).
The arguments of the two complainants are summarised
This Decision also establishes the presence of supple
in recital 16 of that decision. By means of the same
mentary aid amounting to EUR 41 million which is
decision, the Commission called on interested parties to
incompatible with the internal market, to be recovered
submit comments on the application by France of the
by France.
Sernam 2 Decision.
( 1 ) With effect from 1 December 2009, Articles 87 and 88 of the EC
Treaty have become Articles 107 and 108, respectively, of the Treaty
(9) On
8
October
2008,
the
French
authorities
presented
on the Functioning of the European Union (TFEU). The two sets of
comments on the opening decision.
provisions are, in substance, identical. For the purposes of this
decision, references to Articles 107 and 108 of the TFEU should
be understood as references to Articles 87 and 88, respectively, of
( 5 ) This complaint was supplemented in particular by letters dated
the EC Treaty where appropriate.
13 July, 25 August, 6 September, 5 October, 25 October and
( 2 ) OJ C 208, 14.7.2011, p. 8.
16 December 2005.
( 3 ) Decision of 23 May 2001 concerning State aid case NN122/00 (ex
( 6 ) This complaint was supplemented in particular by correspondence
NJ 140/00), OJ C 268, 22.9.2001, p. 15.
dated 23 April 2007.
( 4 ) Decision of 20 October 2004, OJ L 140, 29.5.2006, p. 1.
( 7 ) OJ C 4, 9.1.2009, p. 5.

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L 195/20
EN
Official Journal of the European Union
21.7.2012
(10) The
Commission
received
comments
on
this
matter
from
ordered an observation period of six months and
interested parties. The first complainant submitted
arranged a new hearing for 27 March 2012.
comments on 13 November 2008, the Société
nationale des chemins de fer (‘SNCF’) on 6 February
2009, and the investment fund Butler Capital Partners
(‘BCP’) on 9 February 2009. The Commission
2.
forwarded the comments received to France on
DESCRIPTION
25 March 2009, asking it to comment, which the
2.1. SERNAM
French authorities did with respect to the first
complainant’s comments on 7 May 2009.
(16) Since
it
was
set
up
in
1970
as
part
of
SNCF,
Sernam’s
activities have consisted in mail and express parcel and
pallet delivery services ( 8 ).
(11) On
15
March
2011,
the
second
complainant
served
notice on the Commission to implement ‘investigation
(17) On 1 February 2000, all Sernam’s business activities were
measures’ for the purposes of verifying the conditions
assigned to a subsidiary and SCS Sernam (limited part
of application of the Sernam 2 Decision. The
nership) was thereby formed. SCS Sernam was trans
Commission replied to this on 18 May 2011, indicating
formed into a public limited company (Sernam SA) on
the investigation measures taken since the adoption of
21 December 2001. In 2005, Sernam SA had 10
the opening decision.
operating subsidiaries and a road transport service
company, Sernam Transport Route.
(12) On 25 November 2009 and 29 November 2011, the
Commission sent requests for information to the
(18) On
17
October
2005,
Sernam
Xpress
received
the
assets
French authorities. Replies were received on 15 January
and non-financial liabilities of Sernam SA on the transfer
2010 and 25 January 2012 respectively.
of Sernam SA’s activities to Financière Sernam (for the
details of this operation, see section 2.4). Sernam Xpress
was at the time a wholly-owned subsidiary of Financière
Sernam.
1.2. NATIONAL PROCEDURAL CONTEXT
(13) On
3
January
2007,
the
Mory
group
company
asked
the
(19) During
2006,
BCP
took
a
51,8
%
stake
in
the
capital
of
French authorities to issue two repayment orders: (1) one
Sernam Xpress. At the same time, Sernam Xpress
against Sernam SA concerning the EUR 41 million aid
acquired the company Coulonge, a transport firm estab
declared to be incompatible with the common market by
lished in Limoges.
the Sernam 2 Decision and which, in its opinion, had not
in fact been recovered by France and (2) the other against
the (undesignated) beneficiary of aid for restructuring
Sernam SA allegedly granted by France with a view to
the Sernam SA asset transfer operation (for the details of
(20) During
2011, the
companies
Financière
Sernam and
this operation, see section 2.4 of the present decision).
Sernam Xpress found themselves obliged to recapitalise

before the end of the financial year. Since BCP did not
contribute the necessary capital, two operations were
undertaken.
(14) The
Minister
for
the
Economy,
Finance
and
Industry
rejected the requests made by the second complainant
by letter. The Mory group company appealed against
(21) Firstly,
in
May
2011,
Sernam
Xpress
contributed
the
this rejection decision on grounds of ulta vires before
Sernam brand to its operating subsidiary, Sernam
the Paris Administrative Court. As far as the Commission
Services (this contribution is valued at EUR 15 million).
knows, this litigation is still pending.
(22) Secondly,
on
30
June
2011,
the
company
Sernam
Xpress
was wound up and the company Financière Sernam, the
(15) In
addition,
compulsory
administration
proceedings
were
sole partner, absorbed its assets and liabilities (an
brought on 31 January 2012 against the company
operation referred to as the ‘transfer of all assets and
Sernam Xpress (‘Sernam Xpress’). Sernam Xpress is the
liabilities’).
company which received the assets and non-financial
liabilities from Sernam SA at the time of the Sernam
( 8 ) For a more detailed description of Sernam’s activities, see recitals 12
SA asset transfer operation (for the details of this oper
to 31 of the Sernam 2 Decision and recitals 8 and 9 of the opening
ation, see section 2.4). The Nanterre Commercial Court
decision.

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EN
21.7.2012 Official
Journal
of
the
European
Union L
195/21
(23) Consequently, the Sernam group now consists of
renounced contributing itself to the restructuring costs of
Financière Sernam and the subsidiaries of the ex-
the undertaking to the amount of EUR 67 million.
Sernam Xpress, which are Sernam Services, already
mentioned, and the company Aster (‘Aster’). Aster is
the former company Sernam Transport Route. Sernam
Xpress had sold this subsidiary in December 2005, and
(27) In the light of these factors, the Commission imposed
had granted a turnover guarantee to the purchaser. In
conditions on the authorisation of the EUR 503 million
March 2008, Sernam Xpress repurchased the company,
of restructuring aid paid to Sernam SA. Article 3 of the
which in the meantime had changed its name to Aster.
Sernam 2 Decision, which contains these conditions, is
At the time of the takeover, Sernam Xpress made a
worded as follows:
current account contribution of EUR 5 million to
ASTER. This amount in current account was made over
to ASTER during a board meeting held in July. In
December 2011, Financière Sernam, which in the
‘Article 3
meantime had taken over Sernam Xpress (see recital
22), recapitalised the company ASTER by making over
1. Subject
to
paragraph
2,
the
following
conditions
EUR 5 599 998, entered in its current account.
shall be complied with:

(a) Sernam may develop only its activities to carry
(24) Since the financial situation of the Sernam group
mail by railway in accordance with the Train Bloc
continued to deteriorate, compulsory administration
Express (TBE) concept. In this regard, SNCF guar
proceedings were initiated on 31 January 2011 against
antees that it will offer to any other operator
the companies Financière Sernam and Sernam Services.
who so requests the same conditions as those
On 3 February 2011, the subsidiary Aster was put into
granted to Sernam to develop TBE freight
liquidation with temporary continuation of business. The
transport by rail.
Nanterre Commercial Court ordered an observation
period of six months and arranged a new hearing for
27 March 2012.
(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
2.2. THE SERNAM 1 DECISION OF 23 MAY 2001
services by road transport resources and services
of one or more companies that are legally and
(25) In
its
Sernam
1
decision,
the
Commission
authorised
aid
economically independent of SNCF and are
totalling EUR 503 million for restructuring SCS Sernam.
chosen in accordance with an open, transparent
The authorisation of this aid was based in particular on a
and non-discriminatory procedure.
commitment by France to sell the undertaking. 60 % of
SCS Sernam’s capital was to be taken over by Géodis
SA ( 9 ), a transport and logistics company under general
law quoted on the second market of the Paris Stock
Sernam’s own road transport resources and
Exchange. In this way, Géodis SA should have become
services means all of the road resources — i.e.
entirely liable for SCS Sernam’s debts without limi
road transport vehicles — of the Sernam
tation ( 10 ) and covered the additional costs of Sernam’s
company of which it has full ownership or
restructuring up to EUR 67 million. In turn, SCS Sernam
which it leases or rents.
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 above-mentioned
The companies that take over Sernam’s road
budget and within the prescribed timeframe, i.e. before
activities shall perform the road transport
the beginning of 2004.
services using their own resources.
2.3. THE SERNAM 2 DECISION OF 20 OCTOBER 2004
2. In
the
event
that
Sernam
sells
its
assets
en
bloc
by 30 June 2005 at market price, through a trans
(26) In
its
Sernam
2
Decision,
the
Commission
found
that
the
parent and open procedure, to a company that has
aid amounting to EUR 503 millions authorised under the
no legal link with SNCF, the conditions of paragraph
Sernam 1 Decision, was paid out on conditions differing
1 shall not be applicable.’
from those provided for in the Sernam 1 Decision, in
particular the takeover by Géodis of 15 % (instead of the
envisaged 60 %) of the shares in SCS Sernam. Géodis also
(28) In the Sernam 2 Decision, the Commission also pointed
out that the French authorities had paid additional aid
( 9 ) For the record: Géodis was to acquire 60 % of Sernam against
amounting to EUR 41 million to Sernam. It considered
payment of a symbolic EUR 1 (see recital 51 of the Sernam 1
decision).
this aid to be incompatible with the internal market and
( 10 ) No limitation of liability in limited partnerships.
ordered its recovery by France.

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L 195/22
EN
Official Journal of the European Union
21.7.2012
2.4. THE TRANSFER OF THE ACTIVITIES OF SERNAM SA TO
was signed on 21 July 2005 (hereinafter: the ‘mem
FINANCIRE SERNAM
orandum of understanding of 21 July 2005’). Financière
Sernam was registered in the trade register on 14 October
(29) For the purposes of implementing the Sernam 2
2005. The various operations for the transfer of Sernam’s
Decision, France claims to have respected the condition
activities to Financière Sernam, described in detail in the
provided for in Article 3(2). It explains that SNCF, in a
recitals below, were carried out on 17 October 2005.
press release ( 11 ), invited any interested party to contact
Bank ABN AMRO. Thirty-four industrial groups, financial
groups or consortiums were allegedly invited to examine
the file. The letters of invitation for the first round, sent
by ABN AMRO to the parties which had requested the
2.4.2. The various operations for the transfer of
file, contain a call for tenders concerning the takeover of
Sernam’s activities to Financière Sernam
all the assets of Sernam SA.
(33) The
French
authorities
indicated
that
the
transfer
of
Sernam’s activities to Financière Sernam took place in
four stages:
(30) 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
(a) SNCF recapitalised its wholly-owned subsidiary
procedure concluded that the value was very negative:
Sernam SA to the amount of EUR 57 million;
— [candidate 1] (preliminary offer): EUR -120 million;
(b) Sernam SA made a contribution to its wholly-owned
subsidiary Sernam Xpress of all the assets, including
— [candidate 2] (preliminary offer): EUR -90,4 million;
the EUR 57
million from the recapitalisation
described in point (a), and the liabilities of Sernam
with the sole exception of the ‘financial’ liabilities
— [candidate 3] (preliminary offer): EUR -90,4 million;
(equity loan contracted by Sernam SA with the
SNCF group, liability relating to the cancellation of
the ‘IBM-GPS’ contract) amounting to EUR 38,5 mil
— [candidate 4]
(second-round
offer): EUR
lion ( 12 ). In return for this contribution, Sernam SA
-65,2 million;
received a share in Sernam Xpress with a nominal
value of EUR 100;
— [candidate 5]
(second-round
offer): EUR
-56,4 million.
(c) Sernam Xpress then undertook a capital increase of
EUR 2 million which was underwritten in full by
SNCF; following this operation, SNCF held the
majority of the shares in Sernam Xpress;
(31) In view of the absence of a firm offer, the Sernam SA
management team, through a company still to be set up
and initially called Bidco, then Financière Sernam, made a
takeover offer.
(d) Sernam SA and SNCF 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.
2.4.1. Effective date of the operations for the
transfer of Sernam’s activities to Financière
Sernam
(34) Sernam
SA
was
put
into
compulsory
liquidation
on
(32) This
offer
was
forwarded
to
SNCF
on
30
June
2005
and
15 December 2005. The amount of EUR 41 million
accepted in principle by the SNCF General Management
repayable to SNCF under the Sernam 2 Decision was
on the same day. However, formalities were necessary for
entered in the liabilities of the liquidation account. ( 13 )
the formal conclusion of the memorandum of under
standing between all the parties involved. The
memorandum of understanding between SNCF, Sernam
SA, Sernam Xpress (one of the 10 wholly-owned
(35) The
operations
are
shown
in
the
following
table:
subsidiaries of Sernam SA, set up in 2002) and the
managers of the future company Financière Sernam,
( 12 ) The contribution by Sernam SA to Sernam Xpress was made under
the French legal form of ‘partial contribution of assets’.
( 11 ) Press release dated 24 November 2004.
( 13 ) Letter from the French authorities dated 7 May 2008, point 77.

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EN
21.7.2012 Official
Journal
of
the
European
Union L
195/23
(36) The memorandum of understanding of 21 July 2005, besides the recapitalisation by SNCF, of Sernam
SA by EUR 57 million and of Sernam Xpress by EUR 2 million, provided for guarantees granted by
SNCF to Financière Sernam (described in detail in recitals 72 to 85 of the opening decision) 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 (described in detail in recital 117 of the
opening decision).
2.5. REASONS FOR INITIATING THE FORMAL INVESTIGATION PROCEDURE
(37) In
its
decision
of
16
July
2008,
the
Commission
wished
to
verify
whether
France
had
in
fact,
as
it
claims, complied with Article 3(2) of the Sernam 2 Decision and whether the procedure for the
recovery of the incompatible aid amounting to EUR 41 million chosen by France, i.e. entering the
debt to the State in the liabilities of the liquidation account of Sernam SA, in fact enabled the
distortion of competition caused by this aid to be eliminated. In addition, the Commission wished to
check whether the operation transferring the assets of Sernam SA did not give rise to new State aid
to be regarded as incompatible with the internal market.
2.6. COMMENTS BY INTERESTED PARTIES
2.6.1. Comments by the complainants
(38) Firstly, the first complainant considers that the conditions laid down in the Sernam 2 Decision for
the sale of Sernam SA’s assets were not complied with.
(39) To
start
with,
it
was
alleged
that
the
deadline
imposed
by
the
Sernam
2
Decision,
i.e.
30
June
2005,
to make the sale was not respected, as the transfer operations were approved only on 17 October
2005 and the sale of the shares should have occurred on the same day.

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L 195/24
EN
Official Journal of the European Union
21.7.2012
(40) Then, regarding the price of the transfer, the first
2.6.2. Comments by interested parties considering
complainant considers that it was set solely by
that the Sernam 2 Decision was duly
reference to the offer made by Financière Sernam. This
complied with
offer was purportedly unlawful as it implied the granting
of new aid, and in particular the recapitalisation of
2.6.2.1. Comments by SNCF
Sernam SA. Finally, the first complainant emphasises
that Sernam Xpress was not a company independent of
(48) SNCF
considers
that
it
respected
the
condition
provided
Sernam SA, as shown by the Commission in its opening
for in Article 3(2) of the Sernam 2 Decision. It claims to
decision.
have sold all of Sernam’s assets en bloc, before 30 June
2005, at market price, to a company that has no legal
link, through a transparent and open procedure.
(41) Moreover,
it
is
alleged
that
the
transfer
operations
in
reality constitute a share deal, i.e. the beneficiary entity
is kept on the market with a mere change of owner.
(49) According
to
SNCF,
the
transfer
operations
were
indis
sociable and simultaneous. The Commission could not
therefore break them down artificially.
(42) It
also
criticises
the
infringement
of
the
condition
of
organising the sale through a transparent and open
procedure. In its opinion, the sale of Sernam Xpress
(50) It
considers
that
in
the
case
of
a
negative
price,
the
should have been subject to public consultation and invi
principle of the private investor in a market economy
tation to tender after the dual recapitalisation of Sernam
would be respected if the cost of the transfer is lower
SA and Sernam Xpress, rather than that of Sernam SA.
than the cost of winding up, which the State would have

borne as shareholder, and submits detailed observations
to prove this.
(43) Second,
the
first
complainant
criticises
manipulations
in
the valuation of the assets and liabilities transferred and
(51) Finally,
it
emphasises
that
the
obligation
relating
to
the
the undervaluation of the entity sold.
recovery of the aid amounting to EUR 41 million has
been entered in the liabilities of the liquidation account
of Sernam SA.
(44) Third,
the
first
complainant
lists
a
series
of
measures
which, in its opinion, constitute new aid: the recapitali
sation of EUR 57 million, the non-recovery of the EUR
2.6.2.2. Comments by Butler Capital Partners
41 million in unlawful aid, the write-off of Sernam SA’s
financial debts to SNCF. All these measures, in its
(52) Firstly,
BCP
provides
details
of
its
involvement
in
the
opinion, constitute aid which is incompatible with the
capital of Sernam Xpress.
internal market.
(53) Secondly,
BCP
specifies
the
objective
pursued
by
the
(45) Fourth,
the
first
complainant
emphasises
that
Sernam
SA
takeover of the company Coulonge.
should have been wound up rather than sold. It shares
the Commission’s doubts that certain costs were taken
into account in the calculation of the liquidation and
considers that it is not shown at any time that the real
(54) Thirdly,
BCP
denies
that
Sernam
Xpress
had
a
cash
cost of restructuring Sernam was less than that of liqui
surplus following the capital injections of EUR
dation.
57 million and EUR 2 million. BCP would have had to
reinject EUR 6 million to bring the cash flow to an
acceptable level given the losses to be financed.
(46) The first
complainant concludes from this that the
French authorities have not only eluded the obligation
to recover EUR 41 million in aid declared to be incom
(55) Fourthly, BCP disputes that the benefit of the aid of EUR
patible, but have also granted new aid amounting to at
41 million was transferred to Sernam Xpress. BCP
least EUR 95 million, to which should be added various
considers that such a situation would be conceivable
aid measures granted in the form of guarantees.
only if it were proved that the transfer of Sernam SA’s
activities was not made at market price. However,
according to BCP, the transfer was made following an
open, transparent and non-discriminatory procedure. BCP
(47) The
second
complainant,
for
its
part,
did
not
submit
recalls too that the transfer process was accompanied by
comments on the opening decision.
an expert valuation.

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EN
21.7.2012 Official
Journal
of
the
European
Union L
195/25
(56) Finally,
regarding
the
consequences
of
its
takeover
of
corresponding to a share deal and not to a sale of assets,
Sernam, BCP analyses the capital increase as a sale and
to be artificial and unjustified.
considers that, in accordance with the Banks ( 14 ) and
SMI ( 15 ) case-law, the recovery of hypothetical aid
cannot be imposed on Financière Sernam or its
subsidiary Sernam Xpress.
(62) Firstly, the transfer operations were considered to
correspond to a ‘contribution and disposal operation’
implemented through recapitalisation, i.e. an operation
which is inextricably linked and undertaken for two
2.7. COMMENTS BY FRANCE
reasons: (1) French law did not permit a sale of assets
to be undertaken at a negative price, and (2) it was
2.7.1. Concerning compliance with the Sernam 2
appropriate to ensure that the acquiring party has no
Decision
legal link with SNCF.
2.7.1.1. Concerning observance of the deadline for the sale
(57) The French authorities consider that the firm takeover
offer, which is legally binding on the purchaser, was
(63) Since
its
economic
situation
continued
to
be
in
deficit
submitted on 30 June 2005 and accepted on the same
(the cumulated losses of the four financial years prior to
day by SNCF, which made the agreement irrevocable
the disposal amounted to EUR 309,2 million), the total
under French contract law.
value of Sernam SA’s assets would have been negative.
2.7.1.2. Concerning the selling price
(64) To
comply
with
the
prohibition
of
a
sale
at
a
negative
price under French law and to ensure the economic
(58) The French authorities
consider that the Sernam 2
neutrality of the disposal operation, it is customary for
Decision did not prohibit sale at a negative price and
practitioners in the case of negative value of assets to be
that case-law recognises that this can constitute a
transferred (1) to provide that the price paid by the
market price.
purchaser is symbolic and (2) to set up an arrangement
intended to compensate the purchaser (either partici
pation by the seller in a capital increase prior to the
disposal or write-off by the seller of debts owed to it
(59) The
assets
were
apparently
sold
at
the
negative
price
of
by the transferred company).
EUR 57 million, corresponding to the amount of the
recapitalisation of Sernam SA by SNCF. This price was
allegedly better than the indicative offers initially
presented and constituted the only firm offer proposed
(65) In
addition,
in
order
to
avoid
Sernam
SA’s
creditors
by the market to SNCF. It was purportedly endorsed by
calling into question the validity of the operation or
several independent valuations (ABN Amro, Oddo
exercising their right to oppose it, it was appropriate
Corporate Finance/Paul Hastings and the French Privati
for the assets en bloc to be accompanied by the liabilities
sations Board).
necessary to continue Sernam’s business. Merely selling
the assets would not have allowed inclusion of these
liabilities.
(60) According to the French authorities, the prior recapitali
sation undertaken by SNCF is merely an implementation
arrangement. The Commission could not therefore refer
(66) It was therefore appropriate to undertake a partial
to this recapitalisation to challenge the market value of
contribution of assets subject to the regulations on
the Sernam assets, since the existence of a market price
divisions under Articles L.236-16 to L.236-21 of the
precluded any categorisation as aid for the entire negative
French Commercial Code. In this respect, the French
price.
authorities specify that the contribution is equivalent to
a sale in that it also entails a transfer of ownership,
through remuneration by shares issued by the company
in receipt of the contribution.
2.7.1.3. Concerning the sale of assets
(61) The French authorities consider the Commission’s
analysis, according to which the transfer of Sernam
(67) As,
pursuant
to
Article
3(2)
of
the
Sernam
2
Decision,
SA’s activities to Financière Sernam comprises two
the acquiring party could have no legal link with SNCF, it
successive operations, i.e.: (1) an intra-group transfer of
was not possible to carry out the contribution of assets
assets en bloc from Sernam SA to Sernam Xpress (at this
en bloc directly to Financière Sernam as, in this case,
stage a wholly-owned subsidiary of Sernam SA), then (2)
Sernam SA would automatically have become share
a sale of Sernam Xpress to Financière Sernam,
holder of Financière Sernam through the contribution.
This would explain why there was a partial contribution
( 14 ) Case 390/98 Banks v The Coal Authority [2001] ECR I-6117.
of assets to Sernam Xpress then disposal of Sernam
( 15 ) Case 277/00 Germany v Commission [2004] ECR I-3925.
Xpress to Financière Sernam.

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21.7.2012
(68) According to the French authorities, the partial
— Such an inextricable link is perfectly obvious in the
contribution of assets to Sernam Xpress is not an
present case, since the various agreements signed
intra-group transfer in any case, since Sernam Xpress is
between the parties very clearly show the will of
a ‘shell company’ used to accommodate the assets en
the parties to regard the various operations as inter
bloc of Sernam SA for the sole purposes of permitting
dependent, and having the sole objective of the
their simultaneous disposal to the acquiring party – the
disposal of Sernam’s assets to Financière Sernam.’
company Financière Sernam – and not to continue the
business of the parent company. These assets were
purportedly accommodated and contributed at their
market value to Sernam Xpress for the purposes of
(70) According
to
the
French
authorities,
Sernam
SA’s
assets
carrying out the operation. In any case, the contribution
were sold en bloc to a company that has no legal link
of assets would have implied transfer of ownership, for
with SNCF, at a negative price corresponding to a market
which Sernam Xpress had issued a share with a nominal
price, following negotiation of the disposal conducted in
value of EUR 100. According to the French authorities,
the context of an open, transparent, unconditional and
this share represents the price of the real value of the
non-discriminatory tendering procedure, in accordance
assets and liabilities contributed, once recapitalised to the
with the conditions laid down in Article 3(2) of the
amount of EUR 57 million.
Sernam 2 Decision.
(69) The French authorities enclosed with their comments in
2.7.1.4. Concerning the open and transparent nature of the
response to the opening decision the opinion of Nicolas
selection process
Molfessis, Law Professor, according to which ‘Under
French law … SNCF would not be permitted to
(71) For the French authorities, the assertion that the file
dispose of Sernam's assets directly en bloc to Financière
transmitted to potential buyers of Sernam SA’s assets
Sernam; under the legal rules applicable, SNCF was
did not refer to the sale of Sernam Xpress but to the
obliged to set up a contribution and disposal operation
sale of Sernam SA’s assets is materially incorrect.
to comply with the constraints imposed by the
Moreover, the requirement of an open, transparent and
Commission:
non-discriminatory tendering procedure would not imply
undertaking a new tendering procedure after the recap
italisation, since this is merely the direct result of the
tendering procedure and the negative price resulting
— since French law makes no provision for the very
from it.
concept of sale at a negative price, the operation
could not be undertaken at market price, as
imposed by the Commission, without prior recapitali
sation;
2.7.1.5. Concerning legitimate expectations
(72) The French authorities consider that by providing
— since French law makes no provision for the concept
explicitly for the possibility to undertake the disposal
of the assignment of debt, and makes the assignment
of Sernam’s assets en bloc, the Sernam 2 Decision gave
of contract conditional upon the prior agreement of
rise to expectations on the part of SNCF and the French
all the contractors assigned, an agreement which is
authorities based on the fact that they were authorised to
impossible to obtain in practice, the assignment of
proceed in this way. Initiating the State aid investigation
the operating liabilities necessary to continue the
procedure would therefore ignore the legitimate expec
business called for recourse to the technique of the
tations that the French authorities had placed in the
partial contribution of assets to overcome this
Sernam 2 Decision, especially as they had acted with
obstacle. Recourse to the technique of the partial
total transparency in relation to the Commission,
contribution of assets required the intervention of a
providing it with all the relevant explanations on the
company, Sernam Xpress, to comply with the
terms and conditions of this disposal.
condition of absence of legal link between the
assignor and the assignee imposed by the
Commission.
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
The arrangement put in place by Sernam must be
Sernam Xpress
assimilated to a disposal of the assets en bloc:
(73) Concerning
the
alleged
manipulations
carried
out
at
the
time of the valuation, the French authorities firstly reject
the discount of EUR 22 million purportedly made on the
— The contribution and disposal operation, which is
valuation of the assets. In fact, since the operation in
well-known in practice, has been assimilated by the
question was a partial contribution of assets followed
Court of Cassation to a disposal of assets whenever
by a disposal, the accounting rules applicable required
indicators showed that the two operations were
valuation not at net accounting value as the first
inextricably linked, since in the end their sole aim
complainant claims, but based on the current value of
is the transfer of the assets;
the assets and liabilities contributed. These values were

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EN
21.7.2012 Official
Journal
of
the
European
Union L
195/27
assessed in accordance with the market price or valu
that CDA continued the business of the undertakings
ations by independent experts. The accounting rules in
which have benefited from aid does not, as such, prove
force were also applied for the valuation of the deferred
the existence of an intention to evade the effects of a
tax credits. As regards the valuation of the brand port
recovery order ( 19 ).
folio, this was based on an estimate made by the
European Commission on 23 May 2001 at the time of
a contribution by SNCF to SCS Sernam.
(79) The
General
Court
specified
that
there
was
no
intention
to evade the effects of the recovery order in so far as a
(74) With regard to the valuation of the liabilities, the French
purchase price in line with the market was paid by CDA
authorities consider that only the liabilities necessary to
for the takeover of the company LCA’s assets ( 20 ).
continue the business of the company in receipt of the
contribution were transferred. Moreover, in their view,
the valuation of the badwill corresponds only to the
entry in the accounts of the negative market value of
(80) According
to
the
French
authorities,
since
Sernam
Xpress
EUR 57 million.
had acquired ownership of the assets and part of the
liabilities from Sernam SA at their market value, this
operation did not transfer to Sernam Xpress the actual
benefit of the advantage generated by the granting of aid
2.7.3. Concerning the absence of obligation to
of EUR 41 million. Furthermore, the Commission cannot
recover the aid amounting to EUR 41 million
argue that, as a result of the takeover of its assets,
from Sernam Xpress
Sernam SA remains like an empty shell from which it
is not possible to secure repayment of the unlawful aid.
(75) The
French
authorities
emphasise
that
the
distinction
between share deal and asset deal, which forms the
Such an argument, already developed in the CDA
basis for the Commission’s arguments developed in the
judgment, was rejected by the General Court ( 21 ).
context of the SMI ( 16 ) and CDA ( 17 ) cases, is not relevant
in the present case.
(81) The
French
authorities
emphasise
that
the
disposal
of
Sernam SA’s assets en bloc was a possibility explicitly
2.7.3.1. Concerning the breakdown of the operation into
considered by the Commission. For SNCF, the fact of
intra-group transfer and share deal
transferring Sernam’s assets to a company en bloc, at
market price, through an open and transparent
(76) For the reasons described in recitals 61 to 70, the French
procedure, could not therefore under any circumstances
authorities consider that the operations for the transfer of
be considered an evasion.
the activities from Sernam SA to Financière Sernam do
not constitute an intra-group transfer followed by a share
deal, but a disposal of assets to a third party.
(82) This is all the more compelling as the Commission itself
apparently considered that such an evasion was ruled out
(77) In the alternative, they emphasise that the market price
‘where, in addition to taking place at the market price,
of Sernam Xpress would necessarily have taken into
the transfer of the beneficiary company’s assets ‘en bloc’
account the existence of the debt of EUR 41 million if
is made as part of an unconditional procedure that is
the aid had been transferred. Under this assumption, the
open to all the company’s competitors’ ( 22 ).
negative price would have been EUR 98 million (57 + 41).
However, the negative price ‘paid’ – in reality received –
by Financière Sernam was allegedly only EUR 57 million.
Consequently, the seller would have saved EUR
41 million, but it is therefore the seller who would
(83) Concerning the Commission’s argument
( 23 ) that the
have kept the economic benefit of the aid. They refer
operation not only allowed the assets to be sheltered
in this context to the Banks judgment ( 18 ).
as authorised by the CDA judgment, but also a
structure to be created permitting the financing of new
investments such as the takeover of the company
Coulonge, it sufficed to observe that the acquisition of
2.7.3.2. Concerning compliance with the conditions of the
CDA and SMI judgments
( 19 ) Judgment CDA Datentrger Albrechts v Commission, cited above in
footnote 17, paragraph 98.
(78) The French authorities maintain that, in its CDA
( 20 ) Judgment CDA Datentrger Albrechts v Commission, cited above in
judgment, the General Court considered that the fact
footnote 17, paragraph 99.
( 21 ) Judgment CDA Datentrger Albrechts v Commission, cited above in
footnote 17, point 100.
( 16 ) Judgment Germany v Commission cited above in footnote 15.
( 22 ) Judgment Germany v Commission, cited above in footnote 15, point
( 17 ) Case T-324/00 CDA Datentrger Albrechts v Commission [2005] ECR
70; Judgment CDA Datentrger Albrechts v Commission, cited above
II-4309.
in footnote 17, point 73.
( 18 ) ECJ judgment Banks, cited above in footnote 14, paragraph 78.
( 23 ) Recital 128 of the opening decision.

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L 195/28
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Official Journal of the European Union
21.7.2012
the company Coulonge Services by Sernam Xpress was
(89) The
Commission
considers
it
appropriate
to
recall
the
carried out simultaneously with the takeover of Sernam
reasons which led to it imposing the conditions
Xpress by BCP and that Sernam Xpress was able to draw
provided for by Article 3 of the Sernam 2 Decision ( 26 ):
on the takeover by BCP by injection of new capital to
undertake this acquisition.
‘[…] taking account of the misuse of aid established
above and the extension of the period of the restruc
(84) Consequently,
contrary
to
the
doubts
expressed
by
the
turing plan, the Commission takes the view that
Commission, ‘the third criterion’ of the CDA judgment,
Sernam should take a specific compensatory measure
as identified by the French authorities, is therefore also
by permanently withdrawing from market segments
complied with.
with overcapacity so as to warrant approval of part
of the aid at issue.
2.7.4. Concerning the new aid to Sernam Xpress
The immediate consequence of granting State aid in
and/or Financière Sernam
markets with structural overcapacity or in decline is
that a company that would have had to give up its
(85) Concerning the existence of new aid in the memorandum
of understanding of 21 July 2005 (recapitalisation of
business on account of the stated difficulties would be
Sernam SA by SNCF amounting to EUR 57 million;
enabled to artificially occupy market shares for which
recapitalisation of Sernam Xpress by SNCF amounting
there is a very strong demand, to the detriment of
to EUR 2 million; guarantees granted by SNCF to
financially sound competing companies. Care should
Financière Sernam; cancellation clause), the French auth
therefore be taken to avoid driving away financially
orities consider that, where a sale took place at market
sound competitors from the market to the benefit of
price following a tendering procedure which was open
those that appear to be unable to survive by their own
and transparent and at a cost lower than the cost of
efforts.
winding-up, this does not include any aid components.
Bearing this in mind, the Commission is of the
opinion that Sernam should permanently withdraw
(86) In
addition,
the
negative
price
presented
by
Financière
from market segments with overcapacity, in this case
Sernam allegedly corresponds to the estimates made by
the market segment of groupage/traditional mail
independent experts.
carried by road.
(87) Moreover, the French authorities specify that the cancel
Even though Sernam has already started this with
lation clause was included in the memorandum of under
drawal, the Commission believes that it is not
standing of 21 July 2005 at the request of Financière
enough and that such it should be sustained. The
Sernam and solely to protect it against the risk of a
Commission therefore considers it necessary to
negative decision by the Commission. The French auth
impose conditions which (i) will enable Sernam to
orities consider that no disposal would have been
continue moving through innovative diversification
possible without this type of clause and claim that the
towards a market segment to be developed (and
Commission did not call this clause into question in a
therefore without overcapacity) and (ii) will make it
previous case ( 24 ).
possible to replace Sernam’s services by services of
other operators (which will have the effect of freeing
up Sernam’s market shares in these segments) in
market segments with overcapacity or stagnation or
3. ASSESSMENT BY THE COMMISSION
in decline.
3.1. REMINDER OF REASONING BEHIND ARTICLE 3 OF THE
SERNAM 2 DECISION
[…]
(88) Firstly,
the
Commission
recalls
that
the
present
procedure
was initiated under Article 16 of Council Regulation (EC)
No 659/1999 of 22 March 1999 laying down detailed
rules for the application of Article 93 of the EC
The Commission also recalls that, if Sernam is sold in
Treaty (
its entirety (assets and liabilities) as intended by the

25 ), as the Commission had received indications
that France has misused the aid authorised, subject to
French authorities, the conditions of the decision
conditions, by the Sernam 2 Decision, following the
(takeover of Sernam’s road activities by other
misuse of aid authorised, also subject to conditions, by
companies and diversification of its activities towards
the Sernam 1 decision.
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
( 24 ) Decision of 8 July 2008 concerning the measures which France has
concerning the company’s restructuring will not apply
implemented in favour of the Société Nationale Maritime Corse-
Méditerranée (SNCM), OJ L 225, 27.8.2009, p. 180.
( 25 ) OJ L 83, 27.3.1999, p. 1.
( 26 ) Recitals 208 to 217 of the Sernam 2 Decision.

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Union L
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as Sernam will no longer operate in its current legal
and open procedure to a company that has no legal
form and will cede its market shares to the inde
link with SNCF, the conditions of paragraph 1 shall
pendent acquiring party (which will de facto
not be applicable.’
continue its activities with Sernam’s assets).’
(90) The
Sernam
2
Decision
therefore
considers
two
different
(96) As
will
be
shown
below,
France
failed
to
comply
with
sale scenarios for Sernam SA: sale of the whole of
these conditions.
Sernam SA (assets and liabilities), and sale of the assets
only. Under the first hypothesis, the company acquiring
the assets and liabilities is subject to the conditions set
3.2.1. The transfer of the activities was not
out in Article 3(1) of the Sernam 2 Decision; under the
completed by 30 June 2005
second, these conditions do not apply.
(97) The
observations
of
the
French
authorities
and
the
first
complainant show that, on 30 June 2005, the SNCF
(91) Furthermore, the broader context of the Commission’s
management only accepted the firm offer of Financière
Sernam 1 and Sernam 2 Decisions should be recalled.
Sernam in principle. However, the memorandum of
Sernam SA, a constantly loss-making company, was the
understanding which is binding on all the parties to
beneficiary of State operating aid, which was paid to it by
the transaction was not signed until 21 July 2005 and
its parent company, SNCF, and was necessary for the
the various transfer operations were carried out only on
survival of the undertaking.
17 October 2005.
(92) It was necessary to put an end to the artificial survival of
a company which was unduly occupying market shares
(98) The
Commission
concludes
from
this
that
the
transfer
of
when it was not competitive. This resulted, on the one
the activities of Sernam SA to Financière Sernam did not
hand, in the process of regular replenishment of the
take place by 30 June 2005 at the latest, even though
company Sernam by the State being brought to an
this was a requirement under the Sernam 2 Decision.
end, and, on the other hand in the distortions of
This reason alone would already suffice to conclude
competition created by this replenishment having to
that France misused the aid authorised conditionally by
either disappear or give rise to compensatory measures.
the Sernam 2 Decision.
In this way, the EUR 41 million of unlawful, incom
patible aid granted to the company Sernam between
2001 and 2004 was to be recovered and compensatory
3.2.2. The transfer of activities does not constitute a
measures were to be adopted releasing market shares in
sale (
exchange for the EUR 503 million in restructuring aid.

27 )
(99) A contract of sale under the legal systems of the Member
States of the Union is based on principles developed in
(93) However,
the
Commission
observes
straight
away
that
Roman law (emptio venditio). The sale consists in the
the way in which France intended to implement the
transfer of ownership of a good against the payment of
2004 decision is directly counter to the objectives thus
a price. This price, as the French Government emphasises
pursued. In fact, the French authorities continued to
in respect of French law, must be a positive price.
grant operating aid, under cover of implementing this

decision, and endeavoured to preserve the economic
continuity of the undertaking without releasing market
share and on the contrary trying to strengthen its
(100) A transaction by which the person wishing to transfer
competitive position.
ownership of one or more goods offers money to the
person who acquires them is not a sale, but a different
type of contract.
(94) At
this
stage,
it
is
appropriate
to
carry
out
a
methodical
examination of the means implemented by the French
authorities to achieve their objectives.
(101) In the present case, SNCF paid EUR 59 million, by under
taking the recapitalisation of Sernam SA for EUR
3.2. MISUSE OF THE AID AUTHORISED BY THE SERNAM 2
57 million and of Sernam Xpress for EUR 2 million
DECISION
respectively, and granted various guarantees to Financière
Sernam. The payment of EUR 2 million by Financière
(95) The
French
authorities
confirm
non-compliance
with
the
Sernam in favour of SNCF and Sernam SA neutralises
conditions set out in Article 3(1) of the Sernam 2
the recapitalisation of Sernam Xpress, but not the other
Decision. Consequently, the Commission can confine
components of the transaction. Consequently, the
itself to verifying whether France complied with the
contract concluded between SNCF and Financière
conditions set out in Article 3(2) of the Sernam 2
Sernam cannot be termed a sales contract. For that
Decision. As a reminder, this paragraph is worded as
matter, this is not disputed by the French authorities,
follows:
( 27 ) The Commission emphasises that the question of whether a
contract can be termed a sale is independent of the question
‘In the event that Sernam sells its assets en bloc by
whether the conclusion of a contract corresponds to the conduct
30 June 2005, at market price through a transparent
of a private operator.

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which explain that the various operations for the transfer
3.2.3.1. The transfer consists in an intra-group transfer en
of the activities of Sernam SA to Financière Sernam do
bloc of the assets and liabilities, followed by a sale
not constitute a sale as French law does not permit them
of shares (share deal) of the subsidiary which received
to carry out a sale which would have led to this result.
them
(108) The operation carried out by SNCF enabled Financière
Sernam to acquire the shares of Sernam Xpress and
therefore to undertake a sale of shares (‘share deal’).
(102) The Commission concludes that the contract concluded
between SNCF and Financière Sernam is not a sale. For
this reason too, Article 3(2) of the Sernam 2 Decision
has not been observed as there was no sale.
Consequently, France has misused the aid authorised
(109) First, it is true that SNCF undertook an operation termed
conditionally by the Sernam 2 Decision.
under French law, according to the French authorities, a
‘partial contribution of assets’ (in reality of assets and
liabilities). However, even analysed in isolation, this
operation could not be termed a ‘sale of assets to a
third party’. It took place for a negative price of EUR
3.2.3. The transfer of the activities is not a sale of
57 million and does not therefore constitute a sale (see
assts but a transfer of Sernam SA in its
section 3.2.2). In addition, it relates not only to the
entirety (assets and liabilities)
assets, but also to the entire liabilities, with the
(103) Even if the transfer of the activities of Sernam SA to
exception of certain debts of Sernam SA to its parent
Financière Sernam did constitute a sale, compliance
company, SNCF. It was therefore a transfer of Sernam SA
with Article 3(2) of the Sernam 2 Decision presupposes
in its entirety (assets and liabilities) and not a sale of the
that this sale relates solely to the assets, and not to
assets only (also see section 3.2.3.2).
Sernam SA in its entirety (assets and liabilities). This
results from recital 217 of the Sernam 2 Decision,
cited at recital 89 of the present decision.
(110) Finally, this transfer was made to a wholly-owned
subsidiary, i.e. Sernam Xpress, an ad hoc entity intended
to receive Sernam SA’s assets and liabilities for the sole
(104) As stated in section 2.4, the transfer of Sernam SA’s
purposes of itself being sold to Financière Sernam.
activities by SNCF to Financière Sernam is based on
Therefore this contribution was not made to a third-
the use by Sernam SA of its wholly-owned subsidiary,
party undertaking independent of SNCF.
Sernam Xpress, to which Sernam SA’s assets were trans
ferred together with its liabilities, with the exception of
some of its debts to its parent company, SNCF. Before
this transfer, Sernam SA had been recapitalised by SNCF
to the amount of EUR 57 million and this new capital
(111) Secondly, the Sernam Xpress shares were sold to
was included in the assets transferred. Once the transfer
Financière Sernam, which does not constitute a sale of
had been made, Sernam Xpress was in turn recapitalised
assets to a third party either, but a transfer of shares or
by SNCF to the amount of EUR 2 million. The Sernam
share deal (and therefore a transfer of the undertaking in
Xpress shares were then sold to Financière Sernam for
its entirety).
the same amount (EUR 2 million).
(105) As indicated in section 2.7.1.3, the French authorities
(112) Consequently, none of the operations carried out by
justify this operation by the two-fold constraint of
SNCF constitutes a sale of Sernam SA’s assets en bloc
French law and the Sernam 2 Decision.
to a company that has no legal link with SNCF and the
conditions set out in Article 3(2) of the Sernam 2
Decision were not observed.
(106) They point out that the overall result of the operation is
identical to that of the sale of the assets. It should
therefore be assimilated to a sale of Sernam SA’s assets
3.2.3.2. The transfer is not limited to the assets, but comprises
en bloc within the meaning of Article 3(2) of the Sernam
Sernam SA in its entirety (assets and liabilities)
2 Decision.
(113) Recital 217 of the Sernam 2 Decision, cited at recital 89
of the present decision, establishes a clear distinction
between a sale of assets, on the one hand, and a sale
of Sernam SA in its entirety (assets and liabilities), on the
(107) The Commission comes to a different conclusion, for
other. This recital clearly shows that if the French auth
two reasons.
orities were to undertake a sale of Sernam SA in its

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entirety (assets and liabilities), as they intended at the
(120) For this reason too, the conditions set out in Article 3(2)
time of the adoption of the Sernam 2 Decision, they
of the Sernam 2 Decision were not observed.
were obliged to comply with the conditions set out in
Article 3(1) of the Sernam 2 Decision.
3.2.6. The ultimate purpose of a sale of assets was
(114) The result of the various transfer operations is that
not observed
Financière Sernam, through its acquisition of Sernam
Xpress, acquires Sernam SA’s assets and liabilities in
(121) Recital 217 of the Sernam 2 Decision explains the
their entirety at the time of the adoption of the
ultimate purpose of a sale of assets as follows:
Sernam 2 Decision, apart from the following exceptions:
on the one hand, the assets were boosted by the
injections of EUR 57 million in favour of Sernam SA
‘Sernam […] will cede its market shares to the inde
and EUR 2 million in favour of Sernam Xpress (also
pendent acquiring party (which will de facto continue
see section 3.2.4 of the present decision) and, on the
its activities with Sernam’s assets).’
other hand, the liabilities were reduced by the amount
of the equity loan contracted by the company Sernam SA
with the SNCF group, a liability relating to the cancel
lation of the ‘IBM-GPS’ contract, and the amount of the
(122) The ultimate purpose of a sale of assets was therefore to
obligation to repay the incompatible aid amounting to
cede market shares and Sernam SA’s assets, and to allow
EUR 41 million.
a third party to use these assets. The sale of the assets
therefore aimed to break off Sernam SA’s economic
activity.
(115) However, these marginal adjustments cannot hide the
fact that the bulk of Sernam SA’s assets and liabilities
were indeed transferred first to Sernam Xpress and then
to Financière Sernam.
(123) However, in the present case, Sernam SA was acquired in
its entirety by its management, regrouped in the future
Financière Sernam. The economic continuity is total;
(116) The transfer of the business is not therefore a sale of
furthermore, the undertaking has been released from a
assets, but a sale of Sernam SA in its entirety (assets
significant part of its debt and received new capital
and liabilities), barring a few exceptions. Consequently,
amounting to EUR 59
million, of which EUR
and for this reason too, the conditions set out in
57 million remains the economic responsibility of
Article 3(2) of the Sernam 2 Decision were not observed.
SNCF. Consequently, apart from the fact that the
operation put in place does not comply with the
conditions set out in Article 3(2) of the Sernam 2
3.2.4. The transfer is not limited to the assets owned
Decision, it does not allow the objectives pursued by
by Sernam SA at the time of the Sernam 2
this decision to be attained either. On the contrary, it
Decision, but were increased by EUR
leads to strengthening of the economic entity which is
59 million
liable to increase the distortions of competition that the

measures imposed by the decision aimed precisely to
(117) On the assets side, the Commission also notes that the
allay.
sum of EUR 59 million was added by the recapitali
sations of Sernam SA and Sernam Xpress and that, at
economic level, taking account of the payment of EUR
2 million by Financière Sernam, this addition comes to
3.2.7. The arguments presented by France do not
EUR 57 million. Such an addition to the assets is not
allow compliance with Article 3(2) of the
authorised by Article 3(2) of the Sernam 2 Decision.
Sernam 2 Decision to be shown
(124) France’s argument that the operations taken as a whole
are equivalent to a sale of assets en bloc cannot be
3.2.5. The transfer of the business did not take place
accepted. In fact, through its nature, the first char
through a transparent and open procedure
acteristic of a sale of assets en bloc is that it is not
based on a sale of shares. Consequently, the Commission
(118) The French authorities at first organised a transparent
cannot accept the argument that several different legal
and open procedure. However, at the end of this
instruments (partial contribution of assets and liabilities,
procedure, SNCF had not received any binding offer.
then share deal) are equivalent to a given legal instrument
(sale of assets) since one of the legal instruments actually
implemented is the negation of the legal instrument
(119) Following the failure of the transparent and open
sought.
procedure, the contract concerning the various oper
ations for the transfer of Sernam SA’s business was
concluded with Financière Sernam. Since the latter did
not participate as such and in an autonomous manner in
(125) Likewise, the argument that a direct sale of Sernam SA’s
the transparent and open procedure, the transfer of the
assets to Financière Sernam is not possible under French
business finally did not take place through a transparent
law cannot be accepted. Firstly, it should be recalled that
and open procedure.
the Sernam 2 Decision left France two alternative means

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of implementing this decision. Assuming that the sale of
compatibility, the Commission concludes that the aid
the assets proved inapplicable, the French authorities
of EUR 503 million is incompatible with the internal
could always implement the decision by following the
market and must be recovered, together with interest
possibility provided for by Article 3(1) of the Sernam 2
from the date on which it was made available.
Decision (confining of Sernam SA’s own activities to
carrying mail by railway, with the road transport subcon
tracted). Secondly, if the third-party creditors were really
opposed to a sale at a negative price, Sernam SA could
(131) This recovery must be made from Financière Sernam and
have been the subject of a collective procedure, which
its subsidiaries, and notably Sernam Services and Aster,
means that the sale of assets could have taken place
which are currently continuing the economic activity
under this procedure.
which received the aid, previously engaged in by
Sernam SA (now wound up) and then by Sernam
Xpress (the assets and liabilities of which were
absorbed by Financière Sernam following a transfer of
(126) Finally, if the French authorities were experiencing
all assets and liabilities). In fact, it is appropriate to
difficulties in implementing the Sernam 2 Decision,
consider, firstly, that Sernam Xpress took over all the
they should have recontacted the Commission to find a
assets and a portion of the liabilities from Sernam SA
solution, in agreement with it, concerning other
following a transaction which took place within the
arrangements pursuant to the principle of sincere
group. Sernam Xpress therefore continued the
cooperation provided for in Article 4(3) of the Treaty
economic activity of Sernam SA (also see the detailed
on European Union (TEU). Although the French auth
account in section 3.3). Then, on account of the
orities did visit the Commission on 24 November
transfer of all assets and liabilities, Financière Sernam is
2004 and wrote to it officially on 21 December 2004
the legal successor to Sernam Xpress. Finally, Financière
to inform it of the choice to sell the assets en bloc,
Sernam and its subsidiaries, and notably Sernam Service
without describing the key components, it should be
and Aster, are continuing the business of Sernam SA and
stressed that at no time did France notify the
Sernam Xpress and therefore continuing to benefit from
Commission of any changes to the restructuring plan
the aid of EUR 503 million initially granted to Sernam
conditionally approved by the latter in the Sernam 2
SA.
Decision. On the other hand, section 3.2.3 of the
Community guidelines on State aid for rescuing and
restructuring firms in difficulty ( 28 ) confirms that a
Member State may not deviate from the restructuring
3.3. THE RECOVERY OF THE AID OF EUR 41 MILLION
plan without notifying and obtaining the prior
approval of the Commission.
(132) The State aid of EUR 41 million which was to be
recovered by France from its recipient under the
Sernam 2 Decision has been entered in the liabilities of
(127) The Commission never gave its approval to the transfer
the liquidation account of the company Sernam SA.
of Sernam SA’s activities to Financière Sernam, imple
mented by France.
(133) The French authorities consider that pursuant to Article 4
of the Sernam 2 Decision, the transfer of the activities of
3.2.8. Conclusion: France failed to comply with
Sernam SA to Financière Sernam through a procedure
Article 3 of the Sernam 2 Decision and
that they term transparent and open has the consequence
misused the aid of EUR 503 million
of confining the recovery obligation to the company
Sernam SA only.
(128) In conclusion, in the Commission’s opinion, Article 3 of
the Sernam 2 Decision was not respected. Consequently,
the restructuring aid of EUR 503 million conditionally
authorised by the Sernam 2 Decision was improperly
(134) Article 4 of the Sernam 2 Decision is worded as follows:
used.
3.2.9. The aid of EUR 503 million is incompatible
‘Any partial or full sale of Sernam shall be effected at
with the internal market
market price and through a transparent procedure that

is open to all its competitors. Under these conditions,
(129) Since the aid of EUR 503 million was used by the
the Sernam company shall, if it continues to exist, be
recipient in breach of the Sernam 2 Decision, it is not
responsible for paying back the aid of EUR 41 mil
compatible with the internal market on the basis of this
lion.’
decision.
(135) Article 4 draws a distinction according to whether or not
(130) According to the Court of Justice case-law, it is for the
there has been an interruption of Sernam’s economic
Member State to invoke the reasons for compatibility of
activity. In the case of the disappearance of this
aid. Since France has not invoked any reason for
activity, recovery is not necessary from the parties who
have acquired the assets at market price through a trans
( 28 ) OJ C 244, 1.10.2004, p. 2.
parent and open procedure.

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(136) The Commission notes moreover that in their case-law,
without paying the market price in return or where
the Court of Justice and the General Court attach decisive
it is established that the creation of such companies
importance to these same factors.
evades the obligation to repay that aid.’
(137) The SMI judgment ( 29 ) draws a distinction between two
(140) The same distinction is to be found in the Seleco judg
hypotheses in the case of the sale of the activities for
ment ( 32 ). In this judgment, the Court of Justice confirms
which aid has been received, i.e. the sale of the shares of
that the Commission may be compelled to require that
the undertaking, following which the undertaking that
the recovery is not restricted to the original firm but is
has benefited from aid retains its legal personality
extended to the firm which continues the activity, using
(share deal), and the sale of all or part of the assets of
the transferred means of production, in cases where
the undertaking to another undertaking, following which
certain elements of the transfer point to economic
the assisted economic activity is no longer carried out by
continuity between the two firms. The Court also
the same legal person (asset deal).
accepted the relevance of the following indicators to
establish economic continuity: the purpose of the
transfer (assets and liabilities, continuity of the workforce,
bundled assets), the transfer price, the identity of the
(138) As regards the share deal, the Court of Justice ruled
shareholders or owners of the acquiring firm and of
that ( 30 ):
the original firm, the moment at which the transfer
was carried out (after the start of the investigation, the
initiation of the procedure or the final decision) and,
‘[…] where an undertaking that has benefited from
lastly, the economic logic of the transaction ( 33 ).
unlawful State aid is bought at the market price,
that is to say at the highest price which a private
investor acting under normal competitive conditions
(141) It seems appropriate also to emphasise that the sales of
was ready to pay for that company in the situation it
assets in the SMI and Seleco cases were undertaken under
was in, in particular after having enjoyed State aid, the
collective proceedings, under the supervision of a court.
aid element was assessed at the market price and
They concerned only part of the assets of the under
included in the purchase price. In such circumstances,
takings subject to the collective proceedings. In
the buyer cannot be regarded as having benefited from
addition, according to the Court, it was not established
an advantage in relation to other market operators
that they did not correspond to market conditions.
(see, to that effect, Case 305/89 Italy v Commission
[1991] ECR I-1603, paragraph 40).
(142) The General Court analysed an asset deal in the CDA
judgment ( 34 ) and in particular checked whether in the
In the present case, the undertaking to which unlawful
case in point there was evidence permitting the
State aid was granted retains its legal personality and
conclusion that the recovery order was being evaded
continues to carry out, for its own account, the
through a partial sale of assets. The General Court
activities subsidised by the State aid. Therefore, it is
considered that such an intention had not been estab
normally this undertaking that retains the competitive
lished by the Commission in this case and that CDA did
advantage connected with that aid and it is therefore
not retain the actual benefit of the competitive advantage
this undertaking that must be required to repay an
connected with the receipt of the aid granted. The
amount equal to that aid. […]’
General Court based this finding on two matters of
fact: the sale was confined to part of the assets, sold
en bloc and proceeding in that way (i.e. sale en bloc)
(139) As regards the asset deal, the Court of Justice continues
made it possible to obtain a higher sum than would have
as follows ( 31 ):
been obtained by selling the assets in question separately.
‘It is certainly possible that, in the event that hive-off
(143) It is therefore appropriate to examine the transfer of
companies are created in order to continue some of
Sernam SA’s activities to Financière Sernam in the light
the activities of the undertaking that received the aid,
of the criteria developed by the Court of Justice and
where that undertaking has gone bankrupt, those
General Court in order to establish whether it is appro
companies may also, if necessary, be required to
priate to extend the recovery to Financière Sernam and
repay the aid in question, where it is established that
its subsidiaries, Sernam Services and Aster.
they actually continue to benefit from the competitive
advantage linked with the receipt of the aid. This could
( 32 ) Regarding the share deal, see Case 328/99 Italy and SIM 2
be the case, inter alia, where those hive-off companies
Multimedia v Commission, and C-399/00 [2003] ECR I-4035,
acquire the assets of the company in liquidation
paragraph 83: ‘it is correct that the sale of shares in a company which
is the beneficiary of unlawful aid by a shareholder to a third party does not
affect the requirement for recovery’, for the asset deal, see paragraphs 66
( 29 ) Judgment Germany v Commission, cited above in footnote 15.
to 85 of the same judgment.
( 30 ) Judgment Germany v Commission, cited above in footnote 15, points
( 33 ) Judgment Italy and SIM 2 Multimedia v Commission, cited above in
80 and 81.
footnote 32, paragraphs 77 and 78.
( 31 ) Judgment Germany v Commission, cited above in footnote 15,
( 34 ) Judgment CDA Datentrger Albrechts v Commission, cited above in
paragraph 86.
footnote 17.

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(144) As regards firstly the transfer of all the assets and liabil
with the conditions of Article 3 of the Sernam 2
ities, with the exception of the three financial liabilities
Decision.
(equity loan contracted by the company Sernam SA with
the SNCF group, liability relating to the cancellation of
the ‘IBM-GPS’ contract; obligation to repay the incom
patible aid of EUR 41 million), from Sernam SA to
(148) For these reasons, the Commission concludes that the
Sernam Xpress, the Commission points out that this
transfer of the activities from Sernam SA to Sernam
transfer covered the undertaking in its entirety (see
Xpress had the consequence that Sernam Xpress
section 3.2.3). There is therefore economic continuity
continued to benefit from the competitive advantage
between Sernam SA and Sernam Xpress. This distin
linked with the receipt of the aid granted. In fact, there
guishes the present case from the facts which gave rise
was economic continuity between the two companies
to the SMI, Seleco and CDA judgments, which concerned
and the transfer corresponds to an evasion of the
the sale of only part of the assets. In addition, the
recovery order imposed on Sernam SA.
transfer took place within a group. It took place after a
final decision by the Commission ordering the recovery
of the aid and its only economic logic is to allow the
continuation of the Sernam SA’s activities, without
having to comply with the conditions imposed by
(149) As explained in the SMI and Seleco judgments, the sale of
Article 3 of the Sernam 2 Decision. All the criteria
shares in a company which is the beneficiary of unlawful
evidencing economic continuity within the meaning of
aid by a shareholder to a third party does not affect the
the decision and the Seleco judgment are therefore met.
requirement for recovery from the recipient company.

Consequently, the sale of the Sernam Xpress shares to
Financière Sernam did not have the consequence of
releasing Sernam Xpress from the requirement to repay
the aid of EUR 41 million.
(145) The Commission points out incidentally that the transfer
to Sernam Xpress does not correspond to market
conditions. The transfer to Sernam Xpress was made at
a negative price and is not the result of a transparent and
(150) Following the merger between Sernam Xpress and
open procedure (see section 3.2.5). To the negative price
Financière Sernam, the obligation regarding recovery
of EUR 57 million, which is perceived as operating aid
was transferred to Financière Sernam. Furthermore, the
enabling the losses of Sernam Xpress to be covered for
latter and its subsidiaries, and notably Sernam Services
the years from 2005 to 2008 ( 35 ), is added the write-off
and Aster, are continuing the business of Sernam SA and
of Sernam SA debts to SNCF amounting to EUR
Sernam Xpress and are therefore continuing to benefit
38,5 million (see recital 27). Finally, the Commission
from the aid of EUR 41 million initially granted to
points out too that the liabilities remaining in Sernam
Sernam SA.
SA are debts to third parties and not to SNCF. Through
the capital injection of EUR 57 million, SNCF enabled
Sernam Xpress, at least for the period from 2005 to
2008, to honour these debts in their entirety. If, on
(151) Furthermore, for the reasons set out under point 3.4
the other hand, SNCF had sold only the assets at a
below, the arguments inferred by the French authorities
positive price, the debts of Sernam SA in relation to
from the application of the principle of the private
third parties would have been honoured only up to the
investor in a market economy must be discounted.
proceeds from the sale. This is an additional indicator
that the contractual balance between SNCF and
Financière Sernam does not correspond to market
conditions.
3.4. CONCERNING THE NEW AID GRANTED TO SERNAM
XPRESS
(152) The memorandum of understanding of 21 July 2005
(146) It should also be pointed out that the negative price of
provides for a certain number of measures, which may
EUR 57 million is higher than the best offer received
constitute new aid (cf. recital 36 above). The Commission
during the unsuccessful tendering procedure which had
must check whether these measures constitute new aid
been a negative price of EUR 56,4 million (second-round
and whether, if appropriate, this aid can be declared
offer [candidate 5]).
compatible with the internal market.
(153) According to the French authorities, all these measures
(147) The transfer enabled Sernam Xpress to elude the recovery
conform to the principle of the private investor in a
order for EUR 41 million imposed on Sernam SA, and
market economy. SNCF allegedly transferred the activities
enabled it to continue Sernam SA’s activities without
of Sernam SA to the company having submitted the best
having to repay this aid and without having to comply
offer received during a transparent and open tendering
procedure and this offer, even though it consists of a
( 35 ) Cf. report of ABN Amro forwarded by the French authorities and
negative price, is purportedly less costly for the State as
described in section 2.5.8.2 of the opening decision, p. 47.
shareholder than the winding-up of Sernam.

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(154) The Commission considers that in a situation of recovery
undertakings merged subsequently, there is no need to
of the aid, it is not appropriate to apply the private
distinguish between the advantages granted to one or the
investor principle. On recovery of aid, the State acts
other. The three other criteria evidencing the presence of
under the obligations incumbent upon it under Union
aid are met: the measures are granted from the resources
law and not as a State which is a shareholder.
of a public undertaking, SNCF; SNCF is an EPIC
[industrial and commercial public undertaking] subject
to very close scrutiny by the State; the granting of the
advantage is therefore also imputable to the State. Since
(155) Furthermore, the Commission points out that Article 3(2)
Sernam Xpress/Financière Sernam operate in road
of the Sernam 2 Decision perceived the sale of assets as
transport, which is open to competition within the
an equivalent to the compensatory measures imposed by
Union, the advantage is liable to create distortions of
Article 3(1). According to point 40 of the Community
competition and affect trade between Member States.
guidelines on State aid for rescuing and restructuring
firms in difficulty ( 36 ), the divestment of a loss-making
activity cannot be considered as a compensatory
measure. The negative price agreed between SNCF and
Financière Sernam shows that a divestment of a loss-
3.4.1. Concerning the EUR 57 million capital
making activity is involved which cannot be the
injection by SNCF in Sernam SA
equivalent of a compensatory measure. In this case, the
negative price corresponds to operating aid to the under
(160) As a result of the EUR 57 million capital injection by
taking, which is therefore inherently ill-suited to reduce
SNCF in Sernam SA, Sernam SA received a considerable
distortions of competition.
financial advantage which is not available to its
competitors. This advantage was then transferred with
the other assets and liabilities to Sernam Xpress.
(156) Moreover, if the position maintained by France were to
be accepted, France could evade its obligation to recover
from Sernam SA and from any other company which
continues its economic activity the aid of EUR
3.4.2. Concerning the EUR 2 million capital injection
41 million, declared incompatible by the Sernam 2
by SNCF in Sernam Xpress
Decision, and the aid of EUR 503
million used
improperly. Such a result would be in flagrant contra
(161) As a result of the EUR 2 million capital injection by
diction with the case-law of the Court of Justice,
SNCF in Sernam Xpress, Sernam Xpress received a
according to which the Member State is required to
considerable financial advantage which is not available
recover the aid without delay, using all the legal means
to its competitors. However, the Commission notes
at its disposal, including seizure of the firm’s assets and,
that SNCF received a payment of EUR 2 million from
where necessary, its liquidation if it is unable to repay the
Financière Sernam, which neutralises the EUR 2 million
amounts in question (
capital injection, which consequently did not confer any

37 ).
advantage.
(157) Acceptance of the position maintained by France would
also lead to discrimination between a private undertaking
3.4.3. Concerning the write-off of Sernam SA’s
and a public undertaking. Whereas the State would take
debts to SNCF
measures for recovery from the private undertaking,
where necessary going as far as its liquidation, the
(162) As explained in recital 33, the transfer of Sernam SA’s
public undertaking could escape this fate on the sole
activities to Financière Sernam does not include two of
condition that it proves to be cheaper for the State to
Sernam SA’s debts to SNCF amounting to EUR
sell it at a negative price rather than recover the illegal,
38,5 million. By writing off these debts, SNCF grants
incompatible aid it has received.
an advantage for an equivalent amount to Sernam
Xpress/Financière Sernam.
(158) For these reasons, the Commission considers that the
principle of the private operator in the market
economy cannot be invoked by France to have the
3.4.4. Concerning the guarantees granted by SNCF
measures provided for in the memorandum of under
standing of 21 July 2005 escape the concept of State aid.
(163) On the transfer of Sernam SA’s activities to Financière
Sernam, SNCF granted the following guarantees:
(159) It is therefore necessary to establish whether the
measures in question conferred an advantage upon
Sernam Xpress or Financière Sernam. Since these two
— It undertook to complete, within a fixed time limit,
the development of a specific site (Valenton)
necessary for the running of Train Bloc Express
( 36 ) OJ C 244, 1.10.2004, p. 2.
( 37 ) Judgment Italy and SIM 2 Multimedia v Commission, cited above in
(TBE), on pain of a fine of EUR 1 million in the
footnote 32, point 69.
event of delay;

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— It undertook to cover any increase in rent for the
(169) The Commission does not concur with this analysis. In
new operating sites, limited to a differential of a
fact, this guarantee makes it more attractive to remain
maximum of EUR 3 million;
employed at Sernam Xpress during the period in
question, without Sernam Xpress having to bear the
slightest additional cost.
— It extended by three years the right to return of […]
railwaymen seconded within Sernam;
(170) The Commission concludes that the guarantees granted
— It extended by three years a social protocol guaran
by SNCF in the memorandum of understanding of
teeing to […] Sernam employees re-employment
21 July 2005, with the exception of the guarantee for
within SNCF in the event of redundancy (by Sernam);
the railwaymen, confer an advantage on Sernam Xpress/
Financière Sernam.
— SNCF guaranteed ‘the continuity of the Train Bloc
Express (TBE)’ ( 38 ) and access to the TBE ( 39 ). In this
connection, SNCF paid EUR 3 million to Sernam
(171) Whereas it is easy to put a figure on the value of the first
Xpress.
three guarantees (EUR 1 million, EUR 3 million and EUR
3 million respectively), this is not the case for the
guarantee of re-employment of employees. France
(164) The first two guarantees obviously confer an advantage
should have established the salary increase that Sernam
on Sernam Xpress/Financière Sernam. In fact, in the
Xpress/Financière Sernam should have awarded to the
absence of these two guarantees, Sernam Xpress/Fi
employees in the absence of these guarantees to
nancière Sernam would have had to bear the costs in
achieve the same objective.
question themselves.
3.4.5. Concerning the selling price
(165) The TBE guarantees, in the Commission’s view, signifi
cantly reduce the risk incurred by Sernam Xpress/Fi
(172) In recital 164 of the opening decision, the Commission
nancière Sernam and therefore confer an advantage.
also considered the question whether the negative price
‘paid’ by Financière Sernam did in fact correspond to
market value. In this respect, the Commission observes
(166) According to France, the guarantee granted to the rail
that in the meantime, the merger had taken place
waymen would in fact benefit SNCF. In fact SNCF
between Sernam Xpress and Financière Sernam, and
apparently posted a certain number of railwaymen
that possible aid to Financière Sernam consisting in too
within Sernam SA. These railwaymen, the cost of
high a negative price would not exceed the EUR
whom was borne by Sernam SA, apparently had the
57 million of aid that Sernam Xpress received as new
right to be reintegrated into SNCF on request. In the
aid. Consequently, it is no longer necessary to decide
light of the fears to which privatisation could give rise,
on the question of possible aid to the purchaser.
SNCF then extended the period during which the rail
waymen could exercise this right with a view to avoiding
their return en masse which would have been more
onerous for SNCF.
3.4.6. Conclusion on the presence of new aid
(173) The measures provided for in the memorandum of
(167) The Commission considers that in the absence of this
understanding of 21 July 2005 described in the present
guarantee, the railwaymen would have been very likely
section 3.4 constitute new aid for Sernam Xpress/Fi
to have applied for reintegration in SNCF at the time of
nancière Sernam.
the transfer of the activities. Sernam Xpress would have
had to replace them with new employees under private
status. The Commission considers it likely that in this
case the salary of these new employees would have
3.4.7. Incompatibility with the internal market and
been less high than that of the railwaymen, which
recovery
would have offset the additional cost for Sernam
(174) According to the Court of Justice case-law, it is for the
Xpress resulting from their more limited experience or
Member State to invoke the reasons for compatibility of
difficulties in recruiting a large number of new employees
aid. Since France invoked no reason for compatibility, the
in a very short time.
Commission concludes that this aid is incompatible with
the internal market and must be recovered, together with
interest.
(168) France considers the three-year extension of the
guarantee of re-employment to be a personal right
granted to certain employees by SNCF. Neither Financière
Sernam nor Sernam Xpress were apparently parties to
(175) This recovery must be made from Financière Sernam and
this agreement.
its subsidiaries, and notably Sernam Service and Aster,
which are currently continuing the economic activity
( 38 ) Recitals 72 to 74 of the opening decision.
which received the aid, previously carried out by
( 39 ) Recitals 75 to 77 of the opening decision.
Sernam Xpress (merged with Financière Sernam).

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3.5. CONCERNING THE CANCELLATION CLAUSE
finally implemented the Sernam 2 Decision. On the
contrary, the note of 21 December 2004 gives the
(176) The memorandum of understanding of 21 July 2005
impression that the disposal would be carried out
contains a cancellation clause in case of a negative
without distinction between the liabilities and at a
decision by the European Commission within five years
positive price, since it indicates that ‘as soon as the
following the conclusion of the memorandum of under
disposal has been carried out, the proceeds will be used
standing. This clause could also constitute new aid.
to repay the liabilities of the legal person Sernam,
However, in such a case, the remedy would consist in
including the incompatible aid, under normal national
its inapplicability. Since the clause has not in fact been
procedures’.
applied, this result has been achieved. There is therefore
no need for further analysis of the clause in question.
(181) Although, considering the negative nature of the prices
3.6. CONCERNING LEGITIMATE EXPECTATIONS
offered for Sernam SA’s assets, the possibility of recap
italisation (fact 3) arose only on receipt of the offers, at
(177) The argument put forward by the French authorities that
least the principle of a sale of the assets with part of the
the steps taken in good faith in relation to the
liabilities (fact 2) must in principle already have been
Commission in accordance with their duty of
known by France when it drew up its note of
cooperation (such as their visit to the Commission on
21 December 2004. Be that as it may, the French auth
24 November 2004 and their letter of 21 December
orities cannot claim the benefit of legitimate expectations
2004), gave rise to legitimate expectations concerning
without having voluntarily informed the Commission of
the conformity of the transfer of Sernam SA’s activities
these material facts on 21 December 2004 or later.
to Financière Sernam with the Sernam 2 Decision and
Union law, cannot be accepted.
(182) Finally and above all, if the French authorities were
(178) In fact, the information communicated by France was
experiencing difficulties in implementing the Sernam 2
confined to informing the Commission of the choice to
Decision, they should have recontacted the Commission
sell the assets en bloc without describing the key
to find a solution, in agreement with it, concerning other
components of the operation for the transfer of
arrangements pursuant to the principle of sincere
Sernam SA’s assets. In particular, the information note
cooperation provided for in Article 4(3) TEU. Section
of 21 December 2004 to the Commission is confined to
3.2.3 of the Community guidelines on State aid for
indicating certain aspects relating to the organisation of
rescuing and restructuring firms in difficulty
( 40 )
the asset transfer procedure and its open and transparent
confirms that, in application of this general principle, a
nature, with a view to achieving a sale at market price by
Member State may not deviate from the restructuring
30 June 2005.
plan without notification and prior approval of the
Commission.
(179) None of the following facts were brought to the
Commission’s attention:
(183) Furthermore, the Commission never gave any agreement
of any kind on the transfer of Sernam SA’s activities to
Financière Sernam implemented by France.
(1) the fact that the planned disposal would be based on
an intra-group transfer of the assets and liabilities to
another legal entity (Sernam Xpress), followed by
divestiture of that other entity (share deal);
(184) The Commission therefore concludes that neither France,
nor the beneficiaries of the aid can invoke legitimate
expectations of any kind.
(2) the fact that part of the liabilities would be trans
ferred with the assets and that only the recovery
order relating to the aid of EUR 41 million and the
4. RECOVERY
debts to the SNCF amounting to EUR 38,5 million
will remain in the liabilities of Sernam SA;
(185) The Commission has concluded that the conditions of
the Sernam 2 Decision were not respected. Consequently,
the aid measures authorised by the Sernam 2 Decision
(3) the fact that France was prepared to recapitalise
were implemented improperly within the meaning of
Sernam SA and Sernam Xpress in the event of a
Article 16 of Regulation (EC) No 659/1999. In the
takeover offer at a negative price.
absence of France presenting reasons for compatibility

of this aid, it is incompatible with the internal market.
France must therefore take all necessary steps to recover
this aid, together with interest.
(180) In the absence of information on these factors, it was not
possible for the Commission to foresee how France
( 40 ) OJ C 244, 1.10.2004, p. 2.

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L 195/38
EN
Official Journal of the European Union
21.7.2012
(186) This aid comes to a total of EUR 503 million. It consists
recovered, together with interest calculated using the
of various restructuring aid amounting to FRF
same method. The Commission refers to recitals 171
2 938 million or EUR 448 million. This aid is
and 189 of the present decision for the calculation of
presented in Table 3 of the decision of 30 April 2003,
the amounts to be recovered.
the main components of which are shown in the table
below:
(FRF million)
(192) To establish the amount of aid to be recovered, France
Initial capital 44
may take into account any sums received by SNCF under
the liquidation of the company Sernam SA as repayment
Financing of losses 2000 698
for the aid of EUR 41 million plus interest and/or the
equity loan plus interest.
Financing of losses 2001 252
Financing of restructuring: SNCF contribution 1
300
(193) In the event of SNCF having received a lump-sum
Financing of restructuring: equity loan from SNCF 250
repayment of all its claims, France will be able to take
into account any amounts recovered by SNCF following
the winding-up of Sernam SA only in proportion to the
Additional costs for railwaymen 394
ratio between the amount of the first two aid measures
recorded and the total amount of the debt entered in the
Total restructuring aid 2
938
liabilities of the company Sernam SA.
(187) To reach the amount of EUR 503 million, it is necessary
(194) These amounts, including that of the aid originally
to add the amount of aid paid under contracts for the
granted to Sernam SA and Sernam Xpress, must be
transport of customer baggage and newspapers
recovered from Financière Sernam and its subsidiaries,
amounting to EUR 34 million and under contracts for
Sernam Service and Aster, which are currently carrying
supplies amounting to EUR 21 million.
out the economic activity in receipt of aid, previously
carried out by Sernam Xpress (having merged with
Financière Sernam) and, prior to this, by Sernam SA.
(188) For further details, reference is made to the Sernam 1
decision of 23 May 2001.
(195) There is in fact no doubt that Sernam Xpress and its
operating subsidiaries Sernam Services and Aster
(189) In order to undertake the effective and immediate
continued the economic activity of Sernam SA, since
recovery of the aid, the French authorities must supply
this was precisely the objective of the transfer of
each date on which aid was made available to the bene
Sernam SA’s activities to Financière Sernam, imple
ficiary ( 41 ). It is on the basis of this date that the interest
mented by France. Furthermore, it emerges from the
on the sums to be recovered must be calculated for each
case file that Sernam Xpress, Sernam Services and Aster
measure on a compound basis pursuant to Chapter V of
did indeed continue to run the business which had
Commission Regulation (EC) No 794/2004 ( 42 ).
received aid according to the current business plan of
Sernam SA and with the same staff. Then, on 30 June
2011, Financière Sernam, the sole partner, dissolved the
company Sernam Xpress and took over its assets and
(190) Likewise, the aid of EUR 41 million already considered
liabilities. Financière Sernam is therefore the legal
incompatible by the Sernam 2 Decision must be
successor of Sernam Xpress and its economic successor
recovered, together with interest calculated using the
since it (Financière Sernam) currently holds and controls
same method.
directly the operating subsidiaries Sernam Services and
Aster. In addition, Financière Sernam and its subsidiaries,
and notably Sernam Services and Aster, are continuing
(191) Finally, the recapitalisation of EUR 57 million, the write-
the business of Sernam SA and Sernam Xpress and
off of Sernam SA’s debts by SNCF amounting to EUR
therefore continuing to benefit from the aid.
38.5 million and the guarantees granted by SNCF on the
Furthermore, in May 2011, Sernam Services received a
transfer of Sernam SA’s activities to Financière Sernam,
contribution of assets, with the transfer of the Sernam
with the exception of the guarantee granted to the rail
brand, which is valued at EUR 15 million, without paying
waymen, also constitute State aid which is incompatible
adequate compensation. Aster, for its part, benefited in
with the internal market. This new aid must be
March 2008 from a contribution of EUR 5 million in
current account, an amount which was assigned to it
in July 2008, on the one hand, and was recapitalised
( 41 ) The figures indicated in the present decision have been rounded to
in December 2011 by the assignment of EUR
the nearest million. The calculation of the interest, on the other
hand, must be based on the exact amount under each aid measure.
5 599 998 in current account, on the other. These two
( 42 ) OJ L 140, 30.4.2004, p. 1.
subsidiaries therefore benefited from the aid initially

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EN
21.7.2012 Official
Journal
of
the
European
Union L
195/39
granted to Sernam SA and Sernam Xpress not only as
3. The
interest
shall
be
calculated
on
a
compound
basis
companies belonging to the group and on account of the
pursuant to Chapter V of Regulation (EC) No 794/2004 of
fact that they are continuing its business, but also on
21 April 2004.
account of the transfer of certain assets or recapitalisation
measures in their favour.
Article 3
(196) It should be specified that Sernam SA itself stems from
1. Recovery
of
the
aid
referred
to
in
Article
1
shall
be
the transformation of Sernam SCS into a public limited
immediate and effective.
company at the end of 2001 (on this subject, see Sernam
2 Decision, recital 11). Sernam SCS was therefore the
2. France
shall
ensure
that
this
Decision
is
implemented
original beneficiary of part of the aid in question.
within four months following the date of notification of this
Decision.
(197) The company Financière Sernam and its subsidiary
Sernam Services having been put into receivership on
3. In
implementing
this
Decision,
France
may
take
account
31 January 2012, and Aster, subsidiary of Financière
of any sums recovered by SNCF as a result of the winding-up of
Sernam, having been put into compulsory liquidation
Sernam SA under the conditions set out above.
on 3 February 2012, the French authorities are
requested to determine the amount of the aid, together
with interest, to be recovered as soon as possible so as to
Article 4
have it entered in the liabilities of these undertakings,
1. Within
two
months
of
the
date
on
which
this
decision
is
notified, France shall communicate the following information to
HAS ADOPTED THIS DECISION:
the Commission:
Article 1
(a) the date on which aid under each measure was made
available to the beneficiary and the total amount (principal
1. The
State
aid
of
EUR
503
million,
granted
by
France
to
and interest) to be recovered from the beneficiary for each
Sernam SCS (which became Sernam SA) and approved by the
aid measure;
Commission by Decision 2006/367/EC
( 43 ) was used
improperly. It is incompatible with the internal market. This
aid also benefited Sernam Xpress, as well as Financière
(b) a detailed description of the measures already taken and
Sernam and its subsidiaries, Sernam Services and Aster.
planned to comply with this Decision;
2. The State aid of EUR 41 million, granted by France to
(c) documents showing that the beneficiary has been ordered to
Sernam SCS and declared incompatible by the Sernam 2
repay the aid.
Decision, also benefited Sernam Xpress, as well as Financière
Sernam and its subsidiaries, and notably Sernam Services and
2. France
shall
keep
the
Commission
informed
of
the
Aster.
progress in the national measures taken to implement this
Decision until recovery of the aid referred to in Article 1 has
3. The recapitalisation of EUR 57 million of Sernam SA by
been completed. It shall immediately submit, on simple request
SNCF, the write-off of Sernam SA’s debts to SNCF amounting to
by the Commission, information on the measures already taken
EUR 38,5 million and the guarantees granted by SNCF on the
and planned to comply with this Decision. It shall also provide
transfer of the business of Sernam SA to Financière Sernam,
detailed information concerning the amounts of aid and the
with the exception of the guarantee granted to the railwaymen,
interest already recovered from the beneficiary.
constitute State aid which is incompatible with the internal
market.
Article 5
This Decision is addressed to the French Republic.
Article 2
1. France
shall
recover
the
aid
referred
to
in
Article
1
from
Financière Sernam and its subsidiaries, Sernam Services and
Done at Brussels, 9 March 2012.
Aster.
For the Commission
2. The sums to be recovered shall bear interest from the date
on which they were made available to the beneficiary until their
Joaquín ALMUNIA
actual recovery.
Vice-President
( 43 ) OJ L 140, 29.5.2006, p. 1.

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