# C_2022037EN.01004201.xml

| 24.1.2022 | EN | Official Journal of the European Union | C 37/42 |
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24.1.2022

EN

Official Journal of the European Union

C 37/42

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Action brought on 5 November 2021 — Cellnex Telecom and Retevisión I v Commission

(Case T-715/21)

(2022/C 37/56)

Language of the case: Spanish

Parties

Applicants: Cellnex Telecom, SA (Madrid, Spain) and Retevisión I, SA (represented by: J. Buendía Sierra, A. Lamadrid de Pablo and N. Bayón Fernández, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

| — | admit and uphold the pleas for annulment raised in their application; |
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admit and uphold the pleas for annulment raised in their application;

| — | annul the Commission Decision of 10 June 2021 on the State aid SA.28599 (C 23/2010) (ex NN 36/2010, ex CP 163/2009) implemented by Spain for the deployment of digital terrestrial television in remote and less urbanised areas (outside Castilla-La Mancha); (1) |
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annul the Commission Decision of 10 June 2021 on the State aid SA.28599 (C 23/2010) (ex NN 36/2010, ex CP 163/2009) implemented by Spain for the deployment of digital terrestrial television in remote and less urbanised areas (outside Castilla-La Mancha); (1)

| — | order the Commission to pay the costs. |
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order the Commission to pay the costs.

Pleas in law and main arguments

In support of the action, the applicants rely on two pleas in law.

| 1. | First plea in law, alleging a manifest infringement of the procedure laid down in Article 108(2) TFEU and a breach of the procedural rights that interested parties derive from EU law.






  — | In that regard, the applicants submit that that infringement occurred because the decision at issue was adopted without a new opening decision being adopted, or the opening decision which preceded the 2013 decision being amended, or the Commission having first informed the applicants of its preliminary selectivity analysis. |
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1.

First plea in law, alleging a manifest infringement of the procedure laid down in Article 108(2) TFEU and a breach of the procedural rights that interested parties derive from EU law.

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In that regard, the applicants submit that that infringement occurred because the decision at issue was adopted without a new opening decision being adopted, or the opening decision which preceded the 2013 decision being amended, or the Commission having first informed the applicants of its preliminary selectivity analysis.

| 2. | Second plea in law, alleging an error of law in the application of Article 107(1) TFEU in relation to the notion of selectivity, infringement of the burden of proof and failure to state reasons.






  — | In that regard, the applicants submit that the Commission errs in its ‘primary’ selectivity analysis by stating that the system of reference is ‘the normal market conditions under which companies should operate’, including all undertakings and sectors of the economy. The Commission errs in its ‘subsidiary’ selectivity analysis by stating that terrestrial and satellite technologies are in comparable situations when delivering digital television signal to what the decision at issue refers to as Area II. |
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2.

Second plea in law, alleging an error of law in the application of Article 107(1) TFEU in relation to the notion of selectivity, infringement of the burden of proof and failure to state reasons.

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In that regard, the applicants submit that the Commission errs in its ‘primary’ selectivity analysis by stating that the system of reference is ‘the normal market conditions under which companies should operate’, including all undertakings and sectors of the economy. The Commission errs in its ‘subsidiary’ selectivity analysis by stating that terrestrial and satellite technologies are in comparable situations when delivering digital television signal to what the decision at issue refers to as Area II.

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(1)  OJ 2021 L 417, p. 1.

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