8.9.2012

EN

Official Journal of the European Union

C 273/11

(Case T-242/12)

2012/C 273/19

Language of the case: French

Parties

Applicant: Société nationale des chemins de fer français (SNCF) (Paris, France) (represented by: P. Beurier, O. Billard and V. Landes, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—annul the contested decision in its entirety;

—order the Commission to pay all of the costs.

Pleas in law and main arguments

The applicant seeks annulment of Commission Decision C(2012) 1616 final of 9 March 2012 declaring incompatible with the internal market the aid measures implemented by the French Republic in favour of Sernam SCS (1) by, inter alia, recapitalisation, granting guarantees, and the applicant’s waiving of claims against Sernam.

In support of the action, the applicant relies on six pleas in law.

1.First plea in law: infringement of the applicant’s rights of defence in that, by taking a position in the contested decision that did not appear in the decision to initiate the procedure, the Commission prevented the applicant from making known effectively its views on the relevance of that position.

2.Second plea in law: infringement of the principle of the protection of legitimate expectations in that the ‘Sernam 2’ decision (2) created a situation that legitimised the applicant’s expectation that the en bloc disposal of Sernam’s assets was lawful.

3.Third plea in law: breach of the Commission’s duty of care and of the principle of legal certainty in that the Commission adopted a decision almost seven years after Sernam’s assets had been disposed of en bloc.

4.Fourth plea in law: errors of law and of fact in that the Commission took the view that the conditions referred to in Article 3(2) of the ‘Sernam 2’ decision had not been complied with. This plea is amplified in six parts alleging errors that the Commission ostensibly committed by taking the view:

—that the disposal of Sernam’s assets en bloc did not take place on 30 June 2005;

—that it did not constitute a sale;

—that it constituted a transfer of Sernam SA in its entirety (assets and liabilities);

—that it was not limited to the assets of Sernam SA, but was increased by EUR 59 million;

—that it did not take place through a transparent and open procedure;

—and that the ultimate purpose of a sale of assets was not observed.

5.Fifth plea in law: error of law in that the Commission took the view that the obligation to recover EUR 41 million of aid was transferred to Financière Sernam and to its subsidiaries, whereas Financière Sernam cannot be regarded as having benefited from an advantage inasmuch as it paid the market price for Sernam’s assets en bloc.

6.Sixth plea in law: inadequate statement of reasons and errors of fact and of law in that the Commission took the view that the measures provided for in the memorandum of understanding relating to the transfer of Sernam’s assets en bloc constituted State aid, whereas the price paid for the acquisition was a market price resulting from an open, transparent, unconditional and non-discriminatory tendering procedure and was well below the liquidation costs that the applicant would have had to bear had Sernam been placed in liquidation by court order.

(1) State Aid No C 37/2008 — France — Enforcing the ‘Sernam 2’ decision — SA.12522.

(2) Commission Decision 2006/367/EC of 20 October 2004 on the State aid partly implemented by France for the ‘Sernam’ company (notified under document number C(2004) 3940) (OJ 2006 L 140, p. 1).