# C_2017129EN.01000801.xml

| 24.4.2017 | EN | Official Journal of the European Union | C 129/8 |
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24.4.2017

EN

Official Journal of the European Union

C 129/8

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Appeal brought on 20 February 2017 by Cellnex Telecom S.A., formerly Abertis Telecom S.A. against the judgment of the General Court (Fifth Chamber) delivered on 15 December 2016 in Joined Cases T-37/15 and T-38/15, Abertis Telecom Terrestre S.A. and Telecom Castilla-La Mancha, S.A. v European Commission

(Case C-91/17 P)

(2017/C 129/10)

Language of the case: Spanish

Parties

Parties

Appellant: Cellnex Telecom S.A., formerly Abertis Telecom S.A (represented by: J. Buendía Sierra and A. Lamadrid de Pablo, lawyers)

Appellant:

Other parties to the proceedings: European Commission and SES Astra

Other parties to the proceedings:

Form of order sought

Form of order sought

The appellant claims that the Court should:

| — | set aside the judgment under appeal; |
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set aside the judgment under appeal;

| — | give final judgment on the action for annulment and annul the Commission’s decision; and |
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give final judgment on the action for annulment and annul the Commission’s decision; and

| — | order the European Commission and SES Astra to pay the costs. |
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order the European Commission and SES Astra to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

In the judgment under appeal, the General Court confirms a Commission decision on State aid concerning various measures adopted by the public authorities of the Spanish Autonomous Community of Castilla-La Mancha in order to ensure that the digital terrestrial television (DTT) signal reaches remote and less urbanised areas of the territory, in which only 2,5 % of the population live. In that decision, the Commission recognised that, in material terms, the market would not offer that service in the absence of public intervention. Nevertheless, it questioned whether the activity was classified as a service of general economic interest (SGEI) in the Spanish legislation, stating that, from a formal perspective, that activity had not been ‘clearly’ defined and commissioned by the public authorities. The Commission also stated that, in any event, those authorities were not empowered to opt for a certain technology when they organised the SGEI.

In support of its appeal, the appellant relies on two grounds of appeal, alleging that, in the judgment under appeal, the General Court erred in law in its interpretation of Articles 14, 106(2) and 107(1) TFEU and of Protocol No 26 annexed to the TFEU on Services of General Interest.

In particular, the appellant submits that the General Court erred:

| — | by going beyond the limit of the ‘manifest error’ in the assessment of the various measures defining and allocating SGEIs; |
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by going beyond the limit of the ‘manifest error’ in the assessment of the various measures defining and allocating SGEIs;

| — | by unduly limiting the ‘wide discretion’ of the Member States, which applies both to the definition and the ‘organisation’ of the SGIE and therefore includes the choice of the methods of providing the SGIE and the choice of a specific technology, irrespective of whether they are set out in the measure defining the SGIE or in a separate measure; |
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by unduly limiting the ‘wide discretion’ of the Member States, which applies both to the definition and the ‘organisation’ of the SGIE and therefore includes the choice of the methods of providing the SGIE and the choice of a specific technology, irrespective of whether they are set out in the measure defining the SGIE or in a separate measure;

| — | by analysing the applicable Spanish law, distorting the meaning of the provisions analysed and of the case-law interpreting those provisions, and interpreting it in a manner which is manifestly contrary to its content and giving some information a scope which it should not have in relation to other information; |
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by analysing the applicable Spanish law, distorting the meaning of the provisions analysed and of the case-law interpreting those provisions, and interpreting it in a manner which is manifestly contrary to its content and giving some information a scope which it should not have in relation to other information;

| — | by failing to observe that the ‘definition’ of the SGEI and the ‘commissioning’ of the SGEI to one or more undertakings may take place in one or more measures; |
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by failing to observe that the ‘definition’ of the SGEI and the ‘commissioning’ of the SGEI to one or more undertakings may take place in one or more measures;

| — | by failing to observe that the ‘definition’ of the SGEI and its ‘commissioning’ do not require the use of a specific formula or expression, but rather a material and functional analysis; and |
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by failing to observe that the ‘definition’ of the SGEI and its ‘commissioning’ do not require the use of a specific formula or expression, but rather a material and functional analysis; and

| — | by quantifying the alleged advantage received as the total amount of the contracts concluded by the public authorities, disregarding the fact that that amount is not a non-repayable subsidy, but rather constitutes consideration for the goods and services that the undertaking in question provided to the State. |
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by quantifying the alleged advantage received as the total amount of the contracts concluded by the public authorities, disregarding the fact that that amount is not a non-repayable subsidy, but rather constitutes consideration for the goods and services that the undertaking in question provided to the State.

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