CELEX: 62008TJ0391
Language: en
Date: 2012-03-15 00:00:00
Title: Judgment of the General Court (Seventh Chamber) of 15 March 2012. # Ellinika Nafpigeia AE v European Commission. # 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. # Case T-391/08.

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