# C_2004262EN.01005002.xml

| 23.10.2004 | EN | Official Journal of the European Union | C 262/50 |
| --- | --- | --- | --- |

23.10.2004

EN

Official Journal of the European Union

C 262/50

---

Action brought on 2 August 2004 by Viasat Broadcasting UK Ltd against the Commission of the European Communities

(Case T-329/04)

(2004/C 262/94)

Language of the case: Danish

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 2 August 2004 by Viasat Broadcasting UK Ltd, West Drayton (Great Britain), represented by Simon Evers Hjelmborg, lawyer.

The applicant claims that the Court should:

| — | annul Article 1 of Commission Decision of 19 May 2004 in State aid Case C 2/2003 (ex NN 22/2002) concerning Denmark's measures in favour of TV2/Danmark in so far as the decision declares the aid to be compatible with the common market under Article 86(2) EC; |
| --- | --- |

—

annul Article 1 of Commission Decision of 19 May 2004 in State aid Case C 2/2003 (ex NN 22/2002) concerning Denmark's measures in favour of TV2/Danmark in so far as the decision declares the aid to be compatible with the common market under Article 86(2) EC;

| — | order the defendant to pay the costs. |
| --- | --- |

—

order the defendant to pay the costs.

Pleas in law and main arguments:

By the contested decision, the Commission approved the aid granted to TV2/DANMARK A/S from 1995 to 2002 in the form of licence-fee resources and certain other measures as compatible with the common market, except for an amount of DKK 628.2 million which, in the Commission's view, constitutes unlawful State aid which the Kingdom of Denmark is obliged to recover from TV2/DANMARK A/S. The applicant has applied for annulment of that part of the decision by which the Commission declares part of the aid to be compatible with the common market.

The applicant submits that the Commission's assessment is incorrect in the re-examination of the question of whether TV2/DANMARK A/S's public service obligations are defined in sufficient detail, since it has found that all of TV2/DANMARK A/S's programme range forms part of its public service obligations. It is precisely this aspect which makes it difficult to re-examine whether the Danish State has complied and continues to comply with the Community competition rules, in particular Article 87(1) EC, together with Article 86(2) EC.

The applicant adds that the Commission's method for assessing whether the aid found to exist within the meaning of Article 87(1) EC pursuant to Article 86(1) EC is compatible with the common market is incorrect because the method does not take account of the presence of indirect (horizontal) State aid (cross-subsidisation), contrary to Article 87(1) EC:

| — | because the anti-competitive conduct by TV2/DANMARK A/S in the market for sales of television advertising cannot be necessary for the performance of TV2/DANMARK A/S's public service obligations pursuant to Article 86(2) EC, with the result that Article 87(1) EC applies absolutely in relation to TV2/DANMARK A/S's conduct in commercial markets; |
| --- | --- |

—

because the anti-competitive conduct by TV2/DANMARK A/S in the market for sales of television advertising cannot be necessary for the performance of TV2/DANMARK A/S's public service obligations pursuant to Article 86(2) EC, with the result that Article 87(1) EC applies absolutely in relation to TV2/DANMARK A/S's conduct in commercial markets;

| — | because the Commission assessed only whether possible excess compensation from the State (the direct vertical and prohibited State aid) had been provided to assist the commercial activities, and not whether the compensation from the State (the direct vertical and permitted State aid) had been provided in order to obtain an economic advantage in the commercial activities which distorted competition; |
| --- | --- |

—

because the Commission assessed only whether possible excess compensation from the State (the direct vertical and prohibited State aid) had been provided to assist the commercial activities, and not whether the compensation from the State (the direct vertical and permitted State aid) had been provided in order to obtain an economic advantage in the commercial activities which distorted competition;

| — | because the 'stand alone' test applied by the Commission is not applicable to the present case, because it is based on a comparison between TV2/DANMARK A/S's competitors' costs (instead of TV2/DANMARK A/S's own costs) and TV2/DANMARK A/S's income from commercial activities, thereby ignoring possible differences in levels of efficiency, with the result that the test does not show fully whether TV2/DANMARK A/S's commercial activities through cross-subsidation have generated an economic advantage which distorts competition; |
| --- | --- |

—

because the 'stand alone' test applied by the Commission is not applicable to the present case, because it is based on a comparison between TV2/DANMARK A/S's competitors' costs (instead of TV2/DANMARK A/S's own costs) and TV2/DANMARK A/S's income from commercial activities, thereby ignoring possible differences in levels of efficiency, with the result that the test does not show fully whether TV2/DANMARK A/S's commercial activities through cross-subsidation have generated an economic advantage which distorts competition;

| — | because the price test applied by the Commission is not applicable to the present case, either. |
| --- | --- |

—

because the price test applied by the Commission is not applicable to the present case, either.

---