Opinion of the Advocate General — ECLI:EU:C:2002:359
Date: 2002-06-11
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Procedure: Action for annulment - unfounded
Origin: France

Summary of the Judgment 
1. State aid — Examination by the Commission — Legality to be assessed in the light of 
the information available when the decision was adopted 
(Art. SS EC) 
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SUMMARY — CASE C-394/01 
2. State aid — Prohibition — Derogations — Aid to shipbuilding — Directive 
90/684 — Criteria governing derogations — Aid granted as development assistance 
to a developing country •— Need to evaluate aid granted as development assistance in 
the specific case 
(Council Directive 90/684, Art. 4(7)) 
1. The legality of a decision concerning 
aid is to be assessed in the light of the 
information available to the Commis­
sion when the decision was adopted. 
Therefore, a Member State cannot rely 
before the Court on elements of fact 
which were not put forward in the 
course of the pre-litigation procedure 
laid down in Article 88 EC. 
(see para. 34) 
2. The existence of economic and finan­
cial problems confronting a group of 
islands is not sufficient to qualify aid to 
shipbuilding and ship conversion as 
'development assistance to a devel­
oping country' within the meaning of 
Article 4(7) of Directive 90/684, which 
provides that such aid may, without 
being subject to the maximum ceiling 
set out in Article 4(1) to 4(3), be 
deemed compatible with the common 
market if it complies with the terms 
laid down for that purpose in the 
OECD Agreement concerning export 
credits for ships. The particular deve­
lopment content of such assistance 
must be evaluated in the specific case. 
Moreover, the fact that the Commis­
sion was able in the past to accept 
other projects of the same kind relating 
to French overseas territories has no 
bearing on the assessment of the con­
tested aid, which must be evaluated on 
its merits. 
(see paras 52-53) 
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