# C_2014395EN.01002702.xml

| 10.11.2014 | EN | Official Journal of the European Union | C 395/27 |
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10.11.2014

EN

Official Journal of the European Union

C 395/27

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Appeal brought on 25 September 2014 by DTS Distribuidora de Televisión Digital, S.A. against the judgment of the General Court (Third Chamber) delivered on 11 July 2014 in Case T-533/10 DTS Distribuidora de Televisión Digital v Commission

(Case C-449/14 P)

(2014/C 395/33)

Language of the case: Spanish

Parties

Appellant: DTS Distribuidora de Televisión Digital, S.A. (represented by: H. Brokelmann and M. Ganino, abogados)

Other parties to the proceedings: European Commission, Telefónica de España, S.A., Telefónica Móviles España, S.A., Kingdom of Spain and Corporación de Radio y Televisión Española, S.A. (RTVE)

Form of order sought

The appellant claims that the Court should:

| — | set aside the judgment of the General Court of 11 July 2014 in Case T-533/10 DTS Distribuidora de Televisión Digital, S.A. v European Commission and, consequently, pursuant to Article 61 of the Statute of the Court of Justice






  — | on the basis of the information at its disposal, uphold the form of order sought in the application initiating proceedings at first instance and annul Commission Decision 2011/1/EU (1) of 20 July 2010 on the State aid scheme C38/09 (ex NN 58/09) which Spain is planning to implement for Corporación de Radio y Televisión Española (RTVE), or |
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set aside the judgment of the General Court of 11 July 2014 in Case T-533/10 DTS Distribuidora de Televisión Digital, S.A. v European Commission and, consequently, pursuant to Article 61 of the Statute of the Court of Justice

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on the basis of the information at its disposal, uphold the form of order sought in the application initiating proceedings at first instance and annul Commission Decision 2011/1/EU (1) of 20 July 2010 on the State aid scheme C38/09 (ex NN 58/09) which Spain is planning to implement for Corporación de Radio y Televisión Española (RTVE), or

| — | in the alternative, refer the case back to the General Court for judgment in the light of the judgment of the Court of Justice, |
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in the alternative, refer the case back to the General Court for judgment in the light of the judgment of the Court of Justice,

| — | order the Commission and the parties intervening in support of the Commission to pay the costs of both the appeal proceedings and the proceedings before the General Court. |
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order the Commission and the parties intervening in support of the Commission to pay the costs of both the appeal proceedings and the proceedings before the General Court.

Pleas in law and main arguments

| 1. | First ground of appeal, alleging infringement of Article 107(1) TFEU on account of an incorrect interpretation of the concept of aid.
  The judgment under appeal infringes Article 107(1) TFEU in that it interprets incorrectly the concept of aid and, specifically, the conditions which, according to the judgment in Laboratoires Boiron, (2) must be satisfied in order for a tax to be regarded as an integral part of an aid measure. |
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1.

First ground of appeal, alleging infringement of Article 107(1) TFEU on account of an incorrect interpretation of the concept of aid.

The judgment under appeal infringes Article 107(1) TFEU in that it interprets incorrectly the concept of aid and, specifically, the conditions which, according to the judgment in Laboratoires Boiron, (2) must be satisfied in order for a tax to be regarded as an integral part of an aid measure.

| 2. | Second ground of appeal, alleging infringement of Article 107(1) TFEU in that the judgment under appeal does not carry out a comprehensive review as to the existence of aid and distorts Spanish law.
  The judgment under appeal infringes Article 107(1) TFEU in that it does not carry out a comprehensive review as to whether the conditions laid down in the judgment in Régie Networks (1) in order for the tax imposed on DTS to be regarded as an integral part of the aid to RTVE are satisfied and in that it distorts Spanish law. |
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2.

Second ground of appeal, alleging infringement of Article 107(1) TFEU in that the judgment under appeal does not carry out a comprehensive review as to the existence of aid and distorts Spanish law.

The judgment under appeal infringes Article 107(1) TFEU in that it does not carry out a comprehensive review as to whether the conditions laid down in the judgment in Régie Networks (1) in order for the tax imposed on DTS to be regarded as an integral part of the aid to RTVE are satisfied and in that it distorts Spanish law.

| 3. | Third ground of appeal, alleging an error of law in the application of Article 106(2) TFEU.
  The judgment under appeal is vitiated by an error of law in the application of Article 106(2) TFEU. It distorts DTS’ arguments — directed at showing that the method by which the aid to RTVE is financed distorts competition disproportionately — interpreting them as though they concerned the effects of the aid itself and not the effects of the tax by which it is financed. As a consequence, the judgment under appeal rules ultra petita on matters that were not raised by DTS in the application, nor analysed by the Commission in its Decision, thereby modifying the subject-matter of the dispute and exceeding the limits of the General Court’s judicial review jurisdiction. |
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3.

Third ground of appeal, alleging an error of law in the application of Article 106(2) TFEU.

The judgment under appeal is vitiated by an error of law in the application of Article 106(2) TFEU. It distorts DTS’ arguments — directed at showing that the method by which the aid to RTVE is financed distorts competition disproportionately — interpreting them as though they concerned the effects of the aid itself and not the effects of the tax by which it is financed. As a consequence, the judgment under appeal rules ultra petita on matters that were not raised by DTS in the application, nor analysed by the Commission in its Decision, thereby modifying the subject-matter of the dispute and exceeding the limits of the General Court’s judicial review jurisdiction.

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(1)  OJ 2011, L 1, p. 9.

(2)  C-526/04, EU:C:2006:528.

(1)  C-333/07, EU:C:2008:764.

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