European Commission - Press release
State aid: Commission orders recovery of €642 million in unlawful aid paid to Sernam
Brussels, 9 March 2012 - Following an in‑depth investigation (see IP/08/1164), the European Commission has concluded that the conditions governing the authorisation of restructuring aid of €503 million for Sernam (see IP/01/744 and IP/04/1269) have not been met and that the aid is incompatible with the EU rules on state aid. The Commission's investigation also revealed that the privatisation of Sernam has resulted in fresh aid of nearly €100 million. This aid comes on top of the €41 million in aid deemed incompatible in a previous decision of October 2004, which has not yet been recovered. All these subsidies have given Sernam an unfair economic advantage over its competitors and they must be repaid in order to allay the distortion of competition they have provoked in the internal market.
In 2001 the Commission approved, subject to conditions, restructuring aid of €503 million for Sernam, a transport and logistics company that was then a wholly owned subsidiary of the SNCF. On 20 October 2004, noting that the conditions of this decision had not been met and that fresh aid of €41 million had been granted, the Commission adopted a second decision. This decision required the recovery of the €41 million in incompatible aid and authorised the sale of Sernam’s assets en bloc to a third entity, not linked to SNCF, at market price through a transparent and open procedure.
The investigation confirmed the allegations made in a number of complaints received by the Commission, namely that in breach of the 2004 decision Sernam had not repaid the €41 million in unlawful aid and that the privatisation of the company in 2005 did not comply with the conditions imposed. The restructuring aid of €503 million, which was authorised by the Commission only subject to fulfilment of these conditions, is thus illegal. In addition, the transfer operation was accompanied by new aid measures on the part of SNCF: a €57 million recapitalisation of Sernam, a write-off of debts of €38.5 million and guarantees totalling more than €3 million. These new aid measures are also incompatible with the EU rules on state aid.
French authorities' failure to adhere to the conditions of the 2004 Commission decision have only added to the distortion of competition that the measures provided for in that decision were designed to mitigate. The Commission has concluded that the French authorities have failed in their obligation to recover unlawful aid of €41 million and that it is up to Financière Sernam, the company continuing Sernam’s business activities, and its subsidiaries to repay this sum and all other aid that Sernam has received, a total of over €642 million, plus interest.
On 23 May 2001 the Commission authorised restructuring aid for Sernam, subject to conditions (see IP/01/744). On 20 October 2004 the Commission noted the failure to comply with its 2001 decision and imposed new conditions for authorising restructuring aid of €503 million. Sernam was required to reimburse €41 million in unlawful aid and divest itself of its assets en bloc to an independent third entity not linked to SNCF at market price through a transparent and open procedure (see IP/04/1269).
Following several complaints about the unsatisfactory implementation of its previous decision of 20 October 2004, the Commission opened an investigation on 16 July 2008 (see IP/08/1164).
French authorities must recover the unlawful aid paid to Sernam from Sernam Financière and its subsidiaries as there is economic continuity between the former SNCF subsidiary and Sernam Financière and its subsidiaries, which have retained the competitive advantage obtained through the aid granted to Sernam.
The non-confidential version of today's decision will be made available under case number SA 12522 in the State Aid Register on the DG Competition website once any confidentiality issues have been resolved. New publications of state aid decisions on the Internet and in the Official Journal are listed in the ‘State aid Weekly e-News’.