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:

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:

1. Dismisses the action;