# C_2010301EN.01000802.xml

| 6.11.2010 | EN | Official Journal of the European Union | C 301/8 |
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6.11.2010

EN

Official Journal of the European Union

C 301/8

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Appeal brought on 6 August 2010 by Mediaset SpA against the judgment of the General Court (Second Chamber) delivered on 15 June 2010 in Case T-177/07: Mediaset SpA v European Commission, supported by Sky Italia Srl

(Case C-403/10 P)

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2010/C 301/11

Language of the case: English

Parties

Parties

Appellant: Mediaset SpA (represented by: K. Adamantopoulos, Dikigoros and G. Rossi, avvocato)

Appellant:

Other parties to the proceedings: European Commission, Sky Italia Srl

Other parties to the proceedings:

Form of order sought

Form of order sought

The appellant claims that the Court should:

| — | Set aside the judgment of the General Court of 15 June 2010 in Case T-177/07; |
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Set aside the judgment of the General Court of 15 June 2010 in Case T-177/07;

| — | Give final judgment on the dispute by annulling the European Commission Decision that was contested at first instance; or, in the alternative, remit the case to the General Court; and |
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Give final judgment on the dispute by annulling the European Commission Decision that was contested at first instance; or, in the alternative, remit the case to the General Court; and

| — | Order that the costs of the proceedings be borne by the defendant and the intervener at first instance. |
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Order that the costs of the proceedings be borne by the defendant and the intervener at first instance.

Pleas in law and main arguments

Pleas in law and main arguments

| 1. | The Appellant submits that: the General Court (‘the GC’) committed a twofold error in law in considering the Appellant's references to the scope of Article 4 (1) of Italian Law no. 350/2003, as well as the Appellant's plea on the difference between the concepts of (i) selectivity pursuant to Article 107 (1) TFEU and (ii) discrimination, which is distinct from technological neutrality, as being inadmissible. As a result, the GC committed a manifest error in law by legally characterising the Italian Law as not technologically neutral. |
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1.

The Appellant submits that: the General Court (‘the GC’) committed a twofold error in law in considering the Appellant's references to the scope of Article 4 (1) of Italian Law no. 350/2003, as well as the Appellant's plea on the difference between the concepts of (i) selectivity pursuant to Article 107 (1) TFEU and (ii) discrimination, which is distinct from technological neutrality, as being inadmissible. As a result, the GC committed a manifest error in law by legally characterising the Italian Law as not technologically neutral.

| 2. | The GC erred in law when applying Article 107 (1) TFEU by assuming that the alleged ‘not technologically neutral’ nature of the Italian Law necessarily conferred a selective economic advantage upon the Appellant. In addition, the GC committed an error in law by holding that the Defendant was right to find the existence of an economic benefit to Mediaset, when it failed (like the Defendant) to legally categorize an abstract — and solely assumed — ‘enlarged audience’ and ‘low cost market penetration’ as a specific economic advantage to Mediaset. The GC also provided an inadequate statement of reasons contrary to Article 36 of the Statute and manifestly distorted the facts and erred in law by proceeding with a false and distortive reading of the Contested Decision in recitals 62 to 68 and 74 to 79 of the Judgement. Indeed, the GC erred in law because it substituted its own reasoning for that set out in the Contested Decision regarding the alleged advantage to Mediaset and interpreted evidence adduced in a manner that is at odds with the wording and analysis set out in recitals 82 to 95 of the Contested Decision and distorted the evidence. The GC also erred in law regarding the notion of ‘indirect beneficiary’ and its application and legal categorization in the present case. |
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2.

The GC erred in law when applying Article 107 (1) TFEU by assuming that the alleged ‘not technologically neutral’ nature of the Italian Law necessarily conferred a selective economic advantage upon the Appellant. In addition, the GC committed an error in law by holding that the Defendant was right to find the existence of an economic benefit to Mediaset, when it failed (like the Defendant) to legally categorize an abstract — and solely assumed — ‘enlarged audience’ and ‘low cost market penetration’ as a specific economic advantage to Mediaset. The GC also provided an inadequate statement of reasons contrary to Article 36 of the Statute and manifestly distorted the facts and erred in law by proceeding with a false and distortive reading of the Contested Decision in recitals 62 to 68 and 74 to 79 of the Judgement. Indeed, the GC erred in law because it substituted its own reasoning for that set out in the Contested Decision regarding the alleged advantage to Mediaset and interpreted evidence adduced in a manner that is at odds with the wording and analysis set out in recitals 82 to 95 of the Contested Decision and distorted the evidence. The GC also erred in law regarding the notion of ‘indirect beneficiary’ and its application and legal categorization in the present case.

| 3. | Moreover, the GC committed an error in law by completely failing to assess the distinct pleas set out in paragraphs 93 to 96, on the one hand, and 121 to 129, on the other, of the Application in relation to the compatibility assessment of the Italian Law pursuant to Article 107 (3) (c) TFEU. In this respect, the GC also failed to provide an adequate statement of reasons. Furthermore, the GC erred in law when applying Article 107 (3) (c) TFEU, by declaring the Italian Law incompatible with the Common Market, as a result, and merely because of an alleged non-respect of the principle of technological neutrality arising from the alleged exclusion of satellite decoders from its benefits, quod non; and by approving the Defendant's failure to legally assess the distortive effects of the measure on the Pay TV market, through performing a proper legal, economic and balancing test of: a) the specific distortions of competition on the Pay-TV market; and b) the claimed efficiencies of the economic advantage. The latter was merely assumed in the first place and held incompatible with the Common Market because allegedly it is not technologically neutral. In addition, the GC erred in law and proceeded with an incorrect statement of reasons when dismissing the Third Plea of the Application. Not only did the GC incorrectly present and misread the relevant plea and arguments on the contradictory reasoning of the Contested Decision, but it also failed to examine such arguments and, therefore, erroneously dismissed them as unfounded. |
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3.

Moreover, the GC committed an error in law by completely failing to assess the distinct pleas set out in paragraphs 93 to 96, on the one hand, and 121 to 129, on the other, of the Application in relation to the compatibility assessment of the Italian Law pursuant to Article 107 (3) (c) TFEU. In this respect, the GC also failed to provide an adequate statement of reasons. Furthermore, the GC erred in law when applying Article 107 (3) (c) TFEU, by declaring the Italian Law incompatible with the Common Market, as a result, and merely because of an alleged non-respect of the principle of technological neutrality arising from the alleged exclusion of satellite decoders from its benefits, quod non; and by approving the Defendant's failure to legally assess the distortive effects of the measure on the Pay TV market, through performing a proper legal, economic and balancing test of: a) the specific distortions of competition on the Pay-TV market; and b) the claimed efficiencies of the economic advantage. The latter was merely assumed in the first place and held incompatible with the Common Market because allegedly it is not technologically neutral. In addition, the GC erred in law and proceeded with an incorrect statement of reasons when dismissing the Third Plea of the Application. Not only did the GC incorrectly present and misread the relevant plea and arguments on the contradictory reasoning of the Contested Decision, but it also failed to examine such arguments and, therefore, erroneously dismissed them as unfounded.

quod non

| 4. | Finally, the GC erred in law when applying Article 14 of Regulation 659/1999 (1) by failing to consider that the flaws of the Contested Decision regarding the economic advantage allegedly conferred upon the Appellant made it effectively impossible for the alleged State aid to be recovered, in breach of the principle of legal certainty. The Contested Decision was thus left without an efficient and transparent remedy and without a sound recovery methodology. In addition, the GC misread the pleas of the Appellant in this respect and erred in law when considering that the Contested Decision allowed the previous situation to be restored. |
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4.

Finally, the GC erred in law when applying Article 14 of Regulation 659/1999 (1) by failing to consider that the flaws of the Contested Decision regarding the economic advantage allegedly conferred upon the Appellant made it effectively impossible for the alleged State aid to be recovered, in breach of the principle of legal certainty. The Contested Decision was thus left without an efficient and transparent remedy and without a sound recovery methodology. In addition, the GC misread the pleas of the Appellant in this respect and erred in law when considering that the Contested Decision allowed the previous situation to be restored.

1

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(1)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty

1

OJ L 83, p. 1

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