**Judgment of the General Court (Seventh Chamber) of 15 March 2012 — Ellinika Nafpigeia v Commission**

**(Case T‐391/08)**

State aid — Shipbuilding — Aid granted by the Greek authorities to a shipyard — Decision declaring the aid incompatible with the common market and ordering its recovery — Misuse of aid

1.                     *EC Treaty — General and final provisions — Competence of Member States to adopt measures designed to ensure national security
— Production and trade in armaments — Specific procedural regime established by Article 298 EC — Adverse effect on competition
produced by a scheme of aids granted for non-military activities — Not applicable (Arts 86 EC, 88 EC, 296 EC and 298 EC) (see
paras 38, 43-44, 56-60)*

2.                     *State aid — Concept — Private investor test — Assessment having regard to all relevant factors of the disputed operation and
its context (Art. 87(1) EC) (see paras 96, 101, 105)*

3.                     *State aid — Prohibition — Exceptions — Shipbuilding aid — Directive 90/684 — Financial restructuring of shipyards — Condition
of compatibility of the aid with the common market — Investment and privatisation plan — Need for actual completion of the
plan — Reference in the decision approving an aid scheme to the directive — No express mention in that decision of the said
condition — Breach of the principle of legal certainty — None (Art. 88(3) EC; Council Directive 90/684, Art. 10(2)) (see paras
117-118, 128-131, 137-138)*

4.                     *State aid — Prohibition — Exceptions — Shipbuilding aid — Directive 90/684 — Financial restructuring of shipyards — Condition
of compatibility of the aid with the common market — Investment and privatisation plan — Need for actual completion of the
plan — Actual payment by the purchasers of the price of the shares (Art. 88(3) EC; Council Directive 90/684, Art. 10(2)) (see
paras 148, 153-154, 158, 162)*

5.                     *State aid — Regulation No 659/1999 — Misuse of aid — Concept — Member State not complying with conditions imposed by the Commission
for approval of the aid — Inclusion (Council Regulation No 659/1999, Arts 1(g), 16 and 23) (see paras 164-165)*

6.                     *State aid — Examination by the Commission — No observations by the persons concerned — Not relevant to the validity of the
Commission decision — No obligation to examine of the Commission’s own motion matter not expressly raised (Art. 88(2) EC)
(see para. 174)*

7.                     *State aid — Commission decision — Judicial review — Limits — Assessment of legality by reference to information available
at the time of adoption of the decision (Arts 88(3) EC and 230 EC) (see para. 175)*

8.                     *State aid — Examination by the Commission — Administrative procedure — Duration of the procedure between conditional approval
of aid and the final decision declaring it incompatible with the common market — Commission informed late of non-compliance
with a condition for approval of the aid — Breach of the principle of the protection of legitimate expectations — None (Art.
88(2) EC) (see paras 182-187)*

9.                     *State aid — Administrative procedure — Obligation on the Commission to put the parties concerned on notice to submit their
observations — Parties excluded from defence rights (Art. 88(2) EC) (see paras 192-194)*

10.                     *State aid — Concept — Aid granted in the form of a loan — Fixing of the interest rate enabling the amount of the aid to be
calculated — Article 11(3) of Regulation No 794/2004 — Irrelevant (Commission Regulation No 794/2004) (see para. 254)*

**Re:**

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| | APPLICATION for annulment of Article 1(2), Article 2, 3, 5 and 6, Article 8(2) and Articles 9, 11 to 16, 18 and 19 of Commission Decision 2009/610/EC of 2 July 2008 concerning State aid C 16/2004 (formerly NN 29/2004, CP 71/2002 and CP 133/2005) granted by Greece to Hellenic Shipyards SA (OJ 2009 L 225, p. 104). |

**Operative part**

The Court:

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| 1. | | Dismisses the action; |

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| 2. | | Orders Ellinika Nafpigeia AE to bear its own costs and to pay those incurred by the European Commission. |