Judgment_paragraph 234 · Société nationale des chemins de fer français (SNCF) v European Commission (T-242/12)

234As a preliminary point, as the Court has ruled on numerous occasions, that entry of the liability relating to the repayment of the aid in question in the schedule of liabilities can meet the recovery obligation only if, where the State authorities are unable to recover the full amount of aid, the insolvency proceedings result in the winding-up of the undertaking which received the unlawful aid, that is to say, in the definitive cessation of its activities. It is important to bear in mind, in that regard, that the purpose underlying the recovery of aid declared incompatible with the common market is to remove the distortion of competition caused by the competitive advantage which the recipient of the aid has enjoyed in the market as compared with its competitors, thereby restoring the situation which existed before the aid was paid. However, where the undertaking which received the unlawful aid is insolvent and a company has been created to continue some of the activities of the insolvent undertaking, the pursuit of those activities may, where the aid concerned is not recovered in its entirety, prolong the distortion of competition brought about by the competitive advantage which that company enjoyed in the market as compared with its competitors. Accordingly, such a newly created company may, if it retains that advantage, be required to repay the aid in question. That is inter alia the case where it is established that that company continues genuinely to derive a competitive advantage because of the receipt of that aid, especially where it acquires the assets of the company in liquidation without paying the market price in return or where it is established that the effect of that company’s creation is circumvention of the obligation to repay the aid. That applies, in particular, if the payment of a market price is not sufficient to cancel out the competitive advantage linked to receipt of the unlawful aid. In such a case, the registration in the schedule of liabilities of the liability relating to the aid declared unlawful and incompatible with the common market is not sufficient, on its own, to make the distortion of competition thus created disappear (see judgments of 11 December 2012 in Commission v Spain, C‑610/10, ECR, EU:C:2012:781, paragraphs 104 to 107 and the case-law cited, and 24 January 2013 in Commission v Spain, C‑529/09, ECR, EU:C:2013:31, paragraphs 107 and 109 and the case-law cited).

Société nationale des chemins de fer français (SNCF) v European Commission (T-242/12)

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