CELEX: 62014CJ0449
Appeal
State aid
State aid scheme in favour of the national public broadcast organisation
Public service obligations
Set-off
Article 106(2) TFEU
Decision declaring the aid scheme compatible with the internal market
Alteration of the method of financing
Tax measures
Tax imposed on pay-television operators
Decision declaring the amended aid scheme compatible with the internal market
Taking into account of the method of financing
Existence of hypothecation between the tax and the aid scheme
Direct impact of the revenue from the tax on the amount of the aid
Coverage of the net costs of fulfilling the public service mandate
Competitive relationship between the person liable to pay the tax and the beneficiary of the aid
Distortion of national law

– Arguments of the parties
First, DTS claims that the tax on pay-television operators is an integral part of the aid granted to RTVE since it constitutes an asymmetrical tax which may be assimilated to that at issue in the
Laboratoires Boiron
judgment. That tax is imposed on a single category of operators, namely pay-television operators, which are in competition with RTVE. The aid is the consequence of the fact that, on the one hand, a competitor of the beneficiary of the aid is subject to a tax and, on the other, that the revenue generated by the tax is allocated to the funding of the aid.
Secondly, DTS submits that the differences identified by the General Court between the tax on pay-television operators and the tax examined in the
Laboratoires Boiron
judgment are irrelevant.
First of all, the fact, noted by the General Court in paragraph 100 of the judgment under appeal, that the main objective of the tax on pay-television operators is not to restore the balance of competition between RTVE and other operators is not a decisive factor. The concept of aid is an objective notion. In any event, the purpose of that tax is analogous to that of the tax at issue in the case giving rise to the
Laboratoires Boiron
judgment, since its purpose is to contribute to the financing of the costs incurred by RTVE in fulfilling its public service mandate.
Secondly, it is not correct to consider, as the General Court did in paragraph 101 of the judgment under appeal, that the link between the tax on pay-television operators and the aid is less narrow than the one identified in the
Laboratoires Boiron
judgment. In that regard, the General Court was wrong to find that any incompatibility of that tax with EU law would not directly call into question the aid granted to RTVE. The judgment under appeal fails to take into account that the obligation for DTS to help finance a competitor reinforces the distortion of competition resulting from the transfer of funds to the latter. RTVE thus enjoys a competitive advantage in the markets for the acquisition of audiovisual content, not only because of the funds it receives for the fulfillment of its public service mandate, but also because those funds do not benefit its competitors. The latter advantage would disappear completely if the tax on pay-television operators were abolished.
Thirdly, the General Court incorrectly held, in paragraphs 102 to 104 of the judgment under appeal, that, unlike the situation at issue in the case giving rise to the
Laboratoires Boiron
judgment, the amount of the aid granted to RTVE is not determined by the amount of the tax on pay-television operators. In the present case, the competitive advantage enjoyed by RTVE increases with the amount of that tax imposed on DTS, since, the greater that tax, the less resources it will have to compete with RTVE. The link between that tax and the aid is thus narrower than that identified in the
Laboratoires Boiron
judgment. In the contested decision, the Commission arrived at the conclusion that the transfer of public funds to RTVE constitutes State aid, within the meaning of Article 107(1) TFEU.
The Telefónica companies submit, first of all, that the General Court erred in law in interpreting restrictively the conditions that must be satisfied in order for the method of financing of an aid to form an integral part of that aid, since the rules should be given a teleological interpretation.
Second, the Telefónica companies argue that the conditions laid down by the case-law of the Court of Justice for the purpose of establishing that a fiscal measure is part of an aid, namely the hypothecation of the tax to the funding of the aid in question and the direct impact of the revenue from the tax on the amount of the aid, are not separate and cumulative conditions. The hypothecation itself implies the existence of a necessary link between the amount of revenue and the aid. The General Court thus misinterpreted the judgment of 13 January 2005, Streekgewest (
C‑174/02
,
EU:C:2005:10
), since, in that judgment, the Court examined only whether the tax was necessarily hypothecated to the aid under the relevant national rules and considered that, if so, the direct impact of the fiscal measure on the amount of the aid was a logical consequence.
Thirdly, the Telefónica companies submit that the interpretation adopted by the General Court in the judgments of 21 October 2003, van Calster and Others (
C‑261/01 and C‑262/01
,
EU:C:2003:571
), and of 27 November 2003, Enirisorse (
C‑34/01 to C‑38/01
,
EU:C:2003:640
), is incorrect. The fact that the Court did not rule on the requirement that the fiscal measure must have a direct impact on the amount of the aid did not mean that it considered that that requirement was an additional condition for determining whether the method of financing of the aid is part thereof, but may be explained by the fact that those judgments were delivered in the first cases in which the Court ruled on the question of inseparability.
RTVE, the Kingdom of Spain and the Commission submit that the second part of the first ground of appeal is unfounded.
– Findings of the Court
It is settled case-law of the Court that taxes do not fall within the scope of the provisions of the Treaty relating to State aid unless they constitute the method of financing an aid measure, so that they form an integral part of that measure (judgments of 13 January 2005, Streekgewest,
C‑174/02
,
EU:C:2005:10
, paragraph
; of 13 January 2005 in Pape,
C‑175/02
,
EU:C:2005:11
, paragraph
; and of 27 October 2005, Distribution Casino France and Others,
C‑266/04 to C‑270/04, C‑276/04 and C‑321/04 to C‑325/04
,
EU:C:2005:657
, paragraph
).
Firstly, an aid, in the strict sense, may not substantially affect trade between Member States and thus be deemed admissible, but could have its disruptive effect exacerbated by a method of financing that would make the whole incompatible with the internal market. Furthermore, where a tax specifically intended to finance aid proves to be contrary to other provisions of the Treaty, the Commission cannot declare the aid scheme of which the charge forms part to be compatible with the internal market (see, to that effect, judgment of 21 October 2003, van Calster and Others,
C‑261/01 and C‑262/01
,
EU:C:2003:571
, paragraphs
and
and the case-law cited).
The method by which aid is financed may render the entire aid scheme it is intended to fund incompatible with the internal market. As a result, the aid cannot be considered separately from its method of financing (see, to that effect, judgment of 14 April 2005, AEM and AEM Torino,
C‑128/03 and C‑129/03
,
EU:C:2005:224
, paragraph
).
According to settled case-law, in order for a tax to be regarded as forming an integral part of an aid measure, it must be hypothecated to the aid under the relevant national rules, in the sense that the revenue from the tax is necessarily allocated to the financing of the aid and has a direct impact on the amount of the aid and, consequently, on the assessment of the compatibility of that aid with the internal market (see, inter alia, judgments of 15 June 2006, Air Liquide Industries Belgium,
C‑393/04 and C‑41/05
,
EU:C:2006:403
, paragraph
and the case-law cited, and of 22 December 2008, Régie Networks,
C‑333/07
,
EU:C:2008:764
, paragraph
).
In the present case, the General Court found, in paragraphs 65 to 86 of the judgment under appeal, criticised in vain in the second ground of appeal, that it is clear from the applicable national law provisions that the amount of aid allocated to RTVE does not directly depend on the revenue from the fiscal measures at issue, since the amount thereof is determined on the basis of the net costs relating to the fulfilment of the public service mandate entrusted to RTVE.
In particular, as is apparent from paragraphs 47 and 48 of the present judgment, the General Court noted, in that regard, that when the tax revenues available to RTVE exceed the costs of fulfilling the latter’s public service mandate, the excess must be reassigned, as appropriate, to a reserve fund or the treasury, since those revenues, in addition, are subject to an absolute limit, with the result that any surplus is also reassigned to the State’s general budget. Moreover, the General Court found that, where those revenues are insufficient to cover these costs, the Spanish State is required to make up the difference.
In those circumstances, although it is common ground that the financing of the aid granted to RTVE is ensured by the fiscal measures at issue, the General Court, contrary to what DTS and the Telefónica companies submit, was nevertheless entitled to conclude, without committing an error of law, in paragraph 104 of the judgment under appeal, that those fiscal measures do not form part of the aid.
Since the revenue from the fiscal measures at issue has no direct impact on the amount of the aid granted to RTVE, given that neither the grant or the amount of the aid are based on that revenue and that the revenue from that aid is not used to finance it, in that part of the revenue may be reallocated to other purposes, it cannot be held that those tax measures are hypothecated to the aid in question.
It is irrelevant, in that regard, that the fiscal measures at issue were introduced in order to offset the loss of the commercial revenues formerly enjoyed by RTVE, in particular those derived from advertising (see, by analogy, judgment of 13 January 2005, Streekgewest,
C‑174/02
,
EU:C:2005:10
, paragraph
).
DTS’s line of argument, based on the
Laboratoires Boiron
judgment, is not such as to call into question those findings.
In that regard, it should be recalled that, in that judgment, the Court held, in essence, that, in the case of asymmetrical tax liability, that is where only one of two categories of competing traders is liable to pay a tax, traders liable to pay the tax may plead the illegality of it. In such a case, the aid derives from the fact that another category of economic operators with which the category liable to pay the tax is in direct competition is not liable for that charge. The aid measure is therefore the tax itself, that tax and the aid constituting two elements of one and the same fiscal measure which are inseparable. That situation is thus not comparable to that of any exemption from a tax of general application from which that tax may be distinguished (see, to that effect,
Laboratoires Boiron
judgment, paragraphs 30 to 48).
The General Court did not err in law in finding, in paragraphs 98 to 103 of the judgment under appeal, that the tax on pay-television operators for which DTS is liable is not comparable to the asymmetrical tax at issue in the case which gave rise to the
Laboratoires Boiron
judgment.
In the present case, the fiscal measures at issue and the aid to RTVE do not constitute, as noted by the General Court in paragraph 101 of the judgment under appeal, two elements of one and the same fiscal measure which are inseparable, since, unlike the situation at issue in the case giving rise to the
Laboratoires Boiron
judgment, the possible inapplicability of the fiscal measures at issue because of their possible incompatibility with EU law does not directly entail the calling into question of the aid, since, as is apparent from paragraphs 48 and 70 of the present judgment, the Spanish State is required to cover the shortfall between the sources of funding available to RTVE and all of the costs incurred by RTVE in carrying out its public service obligations.
In addition, and as also correctly noted by the General Court in paragraph 102 of the judgment under appeal, in the case giving rise to the
Laboratoires Boiron
judgment, the amount of the aid was determined only by the amount of the tax, since the benefit which the beneficiaries derived from the liability of their competitors to that tax necessarily depended on the amount of that tax. However, in the present case, the amount of the aid is determined, as is apparent from paragraphs 69 to 71 of the present judgment, by the net costs of fulfilling the public service mandate.
Admittedly, as correctly noted by DTS, in the present case, the tax on pay-television operators is also intended to finance an aid scheme in favour of RTVE which the Commission found to be constitutive of State aid, within the meaning of Article 107(1) TFEU. The obligation to pay that tax thus causes DTS an additional competitive disadvantage on the markets on which it operates in competition with RTVE, since the latter is not liable to pay such a tax.
However, as the General Court correctly pointed out, in paragraphs 84 and 102 of the judgment under appeal, that fact alone is not sufficient to demonstrate that such a tax is an integral part of the aid.
On the one hand, as the Court has already held, the question whether a tax is an integral part of an aid financed by a tax depends not on the existence of a competitive relationship between the person liable to pay the tax and the beneficiary of the aid, but only on whether that tax is hypothecated to the aid in question under the relevant national legislation (see, to that effect, judgment of 22 December 2008, Régie Networks,
C‑333/07
,
EU:C:2008:764
, paragraphs
to
).
Thus, according to the case-law of the Court, a tax cannot be hypothecated to an exemption from payment of that same tax for a category of undertakings, and thus even where those undertakings operate in competition with undertakings liable to pay the tax in question. The application of a tax exemption and its extent do not depend on the tax revenue. Thus, those liable to pay a charge cannot rely on the argument that the exemption enjoyed by other undertakings constitutes State aid in order to avoid payment of that charge or to obtain reimbursement thereof (see, to that effect, inter alia, judgment of 27 October 2005, Distribution Casino France and Others,
C‑266/04 to C‑270/04, C‑276/04 and C‑321/04 to C‑325/04
,
EU:C:2005:657
, paragraphs
and
).
On the other hand, as has already been stated in paragraph 65 of the present judgment, taxes are not, in principle, subject to the rules on State aid. As noted by the Advocate General in point 96 of his Opinion, DTS’s argument, if followed, would lead to the conclusion that any tax levied at sectoral level and imposed on undertakings in competition with the beneficiary of the aid financed by the tax must be examined under Articles 107 and 108 TFEU.
It follows from the foregoing that the General Court did not err in law in holding that the tax on pay-television operators is not part of the aid scheme benefiting RTVE.
Consequently, the second part of the first ground of appeal must be rejected as being unfounded.
The third ground of appeal, alleging an error of law in the application of Article 106(2) TFEU
Arguments of the parties
DTS submits that the General Court distorted, in the judgment under appeal, the basis of the second plea seeking annulment raised at first instance, alleging infringement of Article 106(2) TFEU. Contrary to what the General Court held in paragraphs 151 and 152 of that judgment, it did not, before that court, rely on any argument relating to the effects of the aid itself granted to RTVE, but only argued that the method of financing that aid aggravated the distortion of competition resulting therefrom and made the whole, composed of the aid and that method of financing, incompatible with the common interest. The General Court, in that regard, incorrectly interpreted several of its arguments.
According to DTS, that distortion led the General Court to rule
ultra petita
, thus altering the subject matter of the dispute. Having itself clarified during the hearing before the General Court that the second plea for annulment was effective only in the event that the first plea was upheld, the General Court, in dismissing that plea, could not examine the second plea. In any event, even supposing that the General Court was able to rule on that plea, it was entitled to reject it only for the reason set out in paragraph 151 of the judgment under appeal, to the effect that the Commission was not obliged to take into account the effects of the tax on pay-television operators, since that fiscal measure was not an integral part of the aid. The General Court altered the subject matter of the dispute, however, by reinterpreting the second plea raised before it, in paragraph 152 of the judgment, as relating to the effects of the aid itself.
In so doing, the General Court, according to DTS, exceeded the limits of its jurisdiction relating to the judicial review of the assessments made by the Commission in respect of the principle of proportionality set out in Article 106(2) TFEU. The General Court, as part of that review, only has jurisdiction to check whether the Commission made a manifest error of assessment, without having the power to substitute its assessment for that of the Commission, nor, a fortiori, to assess issues that the Commission did not assess. Thus, the General Court, having confirmed the Commission’s decision that the tax on pay-television operators is not an integral part of the aid, could only find that the Commission was entitled to authorise the aid in question. It could not, however, rule on issues such as the risk of anticompetitive behaviour by RTVE, in particular, the raising of bids, since the Commission did not examine such questions.
RTVE contends that the third plea is inadmissible. In any event, it considers, like the Kingdom of Spain and the Commission, that that plea is ineffective or, at the very least, unfounded.
Findings of the Court
It should be noted that the third ground of appeal rests entirely on the premiss that the General Court misinterpreted the scope of the second plea for annulment raised at first instance alleging infringement of Article 106(2) TFEU.
It should be noted, however, that, by its appeal, DTS does not dispute any of the assessments made by the General Court, in paragraphs 113 to 167 of the judgment under appeal, in order to justify the rejection of that second plea.
In particular, DTS in no way claims that that part of the judgment under appeal is vitiated by errors of law; it states at the outset that its appeal does not relate to the review of the compatibility of the aid granted to RTVE with Article 106(2) TFEU.
It follows that the third ground of appeal, even if it were founded, is in no way capable of leading to the annulment of the judgment under appeal.
In those circumstances, that ground of appeal must be rejected as ineffective.
The pleas submitted by the Telefónica companies alleging the infringement of Article 40 of the Statute of the Court of Justice of the European Union and Article 106(2) TFEU
In their reply, the Telefónica companies raised a plea alleging infringement of Article 40 of the Statute of the Court of Justice, in which they submit that the General Court erred in law in rejecting as inadmissible their argument relating to the infringement of Article 108 TFEU.
The Telefónica companies also raised, in that pleading, a plea alleging infringement of Article 106(2) TFEU, in which they argue that the General Court erred in law in conducting an excessively limited review of whether the aid scheme at issue complied with the principle of proportionality, relying in that regard on the Commission’s discretion.
It is not disputed that those pleas seek annulment of the judgment under appeal on grounds that were not raised by DTS as part of its appeal.
On the one hand, DTS did not rely on the infringement of Article 40 of the Statute of the Court of Justice of the European Union in support of its appeal. On the other, although the third ground of appeal formally relies on the infringement of Article 106(2) TFEU, DTS itself stated in its appeal, as is apparent from paragraph 92 of the present judgment, that it is not seeking to challenge the review of the compatibility of the aid granted to RTVE under that provision, merely alleging, as part of that ground of appeal, that the General Court distorted some of its arguments.
Under Article 174 of the Rules of Procedure, a response shall seek to have the appeal allowed or dismissed, in whole or in part.
Furthermore, in accordance with Article 172 of those rules, a party to the relevant case before the General Court may submit, by document separate from the response, a cross-appeal which, according to Article 178(1) and (3), second sentence, of the Rules of Procedure, must seek to have set aside, in whole or in part, the judgment under appeal on the basis of pleas in law and arguments separate from those relied on in the response.
It is apparent from those provisions, read together, that the reply may not seek the annulment of the judgment under appeal on the basis of distinct and independent grounds from those raised in the appeal, since such grounds may only be raised as part of a cross-appeal.
Accordingly, the Court rejects as inadmissible the pleas submitted by the Telefónica companies alleging the infringement of Article 40 of the Statute of the Court of Justice of the European Union and Article 106(2) TFEU.
The cross-appeal
In support of its cross-appeal, the Telefónica companies rely on a single plea, alleging infringement of Article 40 of the Statute of the Court of Justice, in that the General Court rejected as inadmissible their argument relating to an infringement of Article 108 TFEU.
Arguments of the parties
The Telefónica companies maintain that the General Court was not entitled to reject as inadmissible the pleas for annulment which they raised at first instance, alleging infringement of Article 108 TFEU on the ground that, since they were raised for the first time in the statement in intervention, they were unconnected with the subject matter of the dispute.
First of all, in paragraph 216 of the judgment under appeal, the General Court was not entitled to rely on the judgment of 19 November 1998, United Kingdom v Council (
C‑150/94
,
EU:C:1998:547
), since the Telefónica companies did not refer to that judgment.
Furthermore, in paragraph 217 of the judgment under appeal, the General Court does not explain how the judgment of 8 July 2010, Commission v Italy (
C‑334/08
,
EU:C:2010:414
), entails that the intervener taking part in infringement proceedings has more freedom than the intervener in an action for annulment when it intends to raise pleas not relied on by the main party. If the intervener were required to confine itself to the pleas put forward by the main party, Article 132(2) of the Rules of Procedure, under which the intervener is required to set out its pleas in law, would be rendered meaningless.
RTVE contends that the cross-appeal is inadmissible. On the one hand, that appeal is based, in breach of the second sentence of Article 178(3) of the Rules of Procedure, on a single plea that is identical to one of the pleas relied on by the Telefónica companies in their reply to the appeal in the main proceedings. Moreover, that cross-appeal does not clearly identify, in breach of the first sentence of the same provision, the grounds of the judgment under appeal which are in dispute. In any event, the cross-appeal is unfounded. The Kingdom of Spain and the Commission also submit that the arguments of the Telefónica companies must be dismissed.
Findings of the Court
Admissibility of the cross-appeal
Regarding the admissibility of the cross-appeal, it should be recalled that, pursuant to the second sentence of Article 178(3) of the Rules of Procedure, the pleas and legal arguments put forward in support of a cross-appeal must, as already stated in paragraph 100 of the present judgment, be distinct from those relied on in the reply relating to the appeal in the main proceedings.
In the present case, it appears that, admittedly, the single plea raised by the Telefónica companies in support of their cross-appeal, alleging infringement of Article 40 of the Statute of the Court of Justice of the European Union, corresponds exactly to one of the arguments raised in the reply to the appeal in the main proceedings brought by DTS.
However, under penalty of falling foul of the distinction made by the Rules of Procedure between the appeal in the main proceedings and the cross-appeal, the requirement laid down by the second sentence of Article 178(3) of those rules may be understood only as being based on the premiss that the pleas and arguments set out in the reply are, themselves, analogous to those raised in the appeal in the main proceedings.
In the present case, as is apparent from paragraphs 95 to 102 of the present judgment, the plea put forward by the Telefónica companies in their reply relating to the appeal in the main proceedings brought by DTS, alleging infringement of Article 40 of the Statute of the Court of Justice of the European Union, is inadmissible because it is distinct from those of the appeal.
As regards compliance with the requirement laid down by the first sentence of Article 178(3) of the Rules of Procedure, it is sufficient to note that the cross-appeal expressly refers to paragraphs 207 to 218 of the judgment under appeal and, therefore, that it does clearly identify the grounds of that judgment which are in dispute.
In those circumstances, it must be held that the cross-appeal is admissible in that it refers to paragraphs 207 to 218 of the judgment under appeal.
Substance
With respect to whether the cross-appeal is well founded, it should be recalled that a party who, pursuant to Article 40 of the Statute of the Court of Justice of the European Union, is granted leave to intervene in a case submitted to the Court may not alter the subject matter of the dispute as defined by the forms of order sought and the pleas in law raised by the main parties. It follows that arguments submitted by an intervener are not admissible unless they fall within the framework provided by those forms of order and pleas in law (judgment of 7 October 2014, Germany v Council,
C‑399/12
,
EU:C:2014:2258
, paragraph
).
In the present case, the Telefónica companies allege, in the single plea of their cross-appeal, that the General Court dismissed as inadmissible, in paragraphs 207 to 218 of the judgment under appeal, the pleas, raised in their statement in intervention before the General Court, in which they alleged that the Commission infringed Article 108 TFEU.
It is not disputed that DTS did not rely on the infringement of that provision in support of its action at first instance, since the three pleas it relied on in order to seek annulment of the contested decision alleged the infringement, respectively, of Article 107 TFEU, Articles 49 and 64 TFEU and Article 106(2) TFEU.
It follows that, as the General Court held in paragraph 212 of the judgment under appeal, the pleas put forward by the Telefónica companies in its statement in intervention before the General Court were wholly unconnected with the subject matter of the dispute as it had been defined by DTS and altered the framework of the dispute to a degree which was contrary to Article 40 of the Statute of the Court of Justice of the European Union.
In that regard, the General Court correctly held, in paragraph 217 of the judgment under appeal, that the solution adopted in the judgment of 8 July 2010, Commission v Italy (
C‑334/08
,
EU:C:2010:414
), in the context of infringement proceedings under Article 260 TFEU, could not be transposed to an action for annulment under Article 263 TFEU.
Infringement proceedings are based on the objective finding that a Member State has failed to fulfil its obligations under EU law (see, in particular, judgment of 6 October 2009, Commission v Spain,
C‑562/07
,
EU:C:2009:614
, paragraph
).
It follows that, as the General Court correctly held in paragraph 217 of the judgment under appeal, in the context of such proceedings, the Court must make all the necessary determinations in order to reach a finding of a failure to fulfil obligations, with the result that a plea in defence, raised by an intervener, which relates to an element of fact or law that the Commission must necessarily take account of in its analysis is not capable of altering the framework of the dispute, even if it was not relied on by the Member State concerned. In contrast, an action for annulment is defined in particular by the pleas in law relied on by the applicant.
Moreover, although, under Article 132(2)(b) of the Rules of Procedure, the statement in intervention is to contain the pleas in law and arguments relied on by the intervener, that does not mean that the intervener is free to rely on new pleas in law, distinct from those relied on by the applicant. As noted by the Advocate General in point 219 of his Opinion, that provision falls within the context of the limits established by the intervention procedure and must be read in the light of Article 129 of that regulation, which states that the intervention is to be limited to supporting, in whole or in part, the form of order sought by one of the parties, that it is ancillary to the main proceedings and that the intervener must accept the case as he finds it at the time of his intervention.
As to the Telefónica companies’ complaint that the General Court referred, in paragraph 216 of the judgment under appeal, to the judgment of 19 November 1998, United Kingdom v Council (
C‑150/94
,
EU:C:1998:547
), it is sufficient to state that it is completely ineffective, since it is not such as to vitiate the judgment under appeal by an error of law; those companies do not, moreover, argue that the assessment carried out by the General Court in that paragraph is legally flawed.
Consequently, the single plea raised in the cross-appeal must be rejected as unfounded.
Costs
In accordance with the first paragraph of Article 184(2) of the Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to costs. Under Article 138(1) of those rules, applicable, mutatis mutandis, to appeal proceedings by virtue of Article 184(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
Since DTS has been unsuccessful and the Commission has applied for costs, it should be ordered to bear, in addition to its own costs, those incurred by the Commission in the appeal in the main proceedings.
As regards the cross-appeal, since the Telefónica companies have been unsuccessful and the Commission has applied for costs, they must also be ordered to bear their own costs and to pay the costs incurred by the Commission in relation to their cross-appeal.
In accordance with Article 184(4) of the Rules of Procedure, the Telefónica companies shall bear their own costs in respect of the appeal in the main proceedings, while RTVE shall bear its own costs in respect of the appeal in the main proceedings and the cross-appeal.
Pursuant to Article 140(1) of those rules, which applies, mutatis mutandis, to the procedure on appeal by virtue of Article 184(1) of those rules, the Member States which intervene in the proceedings are to bear their own costs. In accordance with those provisions, the Kingdom of Spain shall bear its own costs.

On those grounds, the Court (First Chamber) hereby:

1.
Dismisses the appeal;

2.
Orders DTS Distribuidora de Televisión Digital SA to bear its own costs and to pay those incurred by the European Commission in respect of the appeal in the main proceedings;

3.
Orders Telefónica de España SA and Telefónica Móviles España SA to bear their own costs and to pay those incurred by the European Commission in respect of the cross-appeal;

4.
Orders Corporación de Radio y Televisión Española SA (RTVE) and the Kingdom of Spain to bear their own costs.

[Signatures]
(
*1
)	Language of the case: Spanish.