Opinion of the Advocate General — ECLI:EU:C:2020:644
Date: 2020-09-03
Language of the case: Danish
Subject matter: State aids;Competition
Procedure: Reference for a preliminary ruling
Origin: Denmark

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
6 June 2019 
Referring court:  
Østre Landsret (Denmark) 
Date referred:  
29 May 2019 
Applicant: 
Viasat Broadcasting UK Ltd 
Defendants:  
TV 2/Danmark A/S 
Kingdom of Denmark 
  
Subject matter of the main proceedings 
Viasat Broadcasting UK Ltd (‘Viasat’) has asked for TV 2 Danmark A/S (‘TV 2’) 
to be ordered to pay so-called ‘illegality interest’ totalling DKK 1 746 300 000 on 
the State aid received by TV 2 during the period from 1995 to 2003 in a situation 
where the aid was subsequently approved as public service compensation pursuant 
to Article 106(2) TFEU. TV 2 and the Danish State have requested that the case 
be dismissed and have put forward a number of objections to the existence and 
magnitude of a claim for illegality interest. 
Subject matter and legal basis for the request for a preliminary ruling 
Request for a preliminary ruling lodged pursuant to the second paragraph of 
Article 267 TFEU concerning the content and scope of the obligation on Member 
States to order a recipient of aid to pay so-called ‘illegality interest’ as described 
in, inter alia, the judgments of 12 February 2008 in CELF, C-199/06, 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-445/19 
 
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ECLI:EU:C:2008:79, and of 18 December 2008 in Wienstrom, C-384/07, 
ECLI:EU:C:2008:747.  
Questions referred 
1. Does the obligation for a national court to order an aid recipient to pay 
illegality interest (see the judgment in CELF) apply also in a situation such as that 
in the present case, in which the unlawful State aid constituted public service 
compensation which was subsequently found to be compatible with the internal 
market under Article 106(2) TFEU and in which approval was granted on the 
basis of an assessment of the entire public service undertaking’s overall financial 
situation, including its capitalisation? 
2. Does the obligation for a national court to order an aid recipient to pay 
illegality interest (see the judgment in CELF) apply also in respect of amounts 
which, in circumstances such as those of the present case, are transferred from the 
aid recipient to affiliated undertakings pursuant to a public-law obligation but 
which are categorised by a final Commission decision as constituting an 
advantage for the aid recipient within the meaning of Article 107(1) TFEU? 
3. Does the obligation for a national court to order an aid recipient to pay 
illegality interest (see the judgment in CELF) apply also in respect of State aid 
which the aid recipient, in circumstances such as those of the present case, 
received from a publicly-controlled undertaking, given that the latter’s resources 
are derived partly from sales of the aid recipient’s services? 
EU legal provisions cited  
Article 102 TFEU, Article 106 TFEU, Article 107 TFEU and Article 108 TFEU. 
Commission notice on the enforcement of State aid law by national courts 
(2009/C 85/01) (‘the cooperation notice’) 
Commission notice: Towards an effective implementation of Commission 
decisions ordering Member States to recover unlawful and incompatible State aid 
(2007/C 272/05) (‘the recovery notice’) 
Commission decisions cited 
Commission Decision 2006/217/EC of 19 May 2004 on measures implemented by 
Denmark for TV 2/Danmark, NN 22/2002 (‘the 2004 decision’) 
Commission Decision C(2004) 3632 final of 6 October 2004 in State Aid Case 
No N 313/2004 relating to the recapitalisation of TV 2 DANMARK A/S (‘the 
recapitalisation decision’)  
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Commission Decision C(2008) 4224 final of 4 August 2008 in Case N 287/08 
(‘the rescue aid decision’) 
Commission Decision 2011/839/EU of 20 April 2011 on the measures 
implemented by Denmark (C 2/03) for TV 2/Danmark (‘the 2011 decision’)  
Commission Decision 2012/109/EU of 20 April 2011 concerning State aid 
C 19/09 (ex N 64/09) which Denmark intends to implement regarding the 
restructuring of TV 2 Danmark A/S (‘the restructuring decision’) 
EU Court of Justice case-law cited 
Altmark, C-280/00, ECLI:EU:C:2003:415 
CELF, C-199/06, ECLI:EU:C:2008:79 
Wienstrom, C-384/07, ECLI:EU:C:2008:747 
TV 2/Danmark v Commission, C-649/15 P, ECLI:EU:C:2017:835 
Commission v TV 2/Danmark, C-656/15 P, ECLI:EU:C:2017:836 
Viasat Broadcasting UK v TV 2/Danmark, C-657/15 P, ECLI:EU:C:2017:837 
Viasat Broadcasting UK v Commission, C-660/15, ECLI:EU:C:2017:178 
TV 2/DANMARK A/S and Others v Commission, T-309/04, T-317/04, T-329/04 
and T-336/04, ECLI:EU:T:2008:457 
TV 2/Danmark v Commission, T-674/11, ECLI:EU:T:2015:684 
Viasat Broadcasting UK v Commission, T-125/12, ECLI:EU:T:2015:687 
Eesti Pagar, C-349/17, ECLI:EU:C:2019:172 
Residex Capital IV CV, C-275/10, ECLI:EU:C:2011:814 
Siemens v Commission, T-459/93, ECLI:EU:T:1995:100 
National legislation cited  
Lov om radio-og fjernsyns virksomhed (‘the Law on Radio and Television 
Broadcasting’), in particular Paragraphs 24, 29, 30 and 33 
Brief presentation of the facts and procedure in the main proceedings 
1 The applicant in the main proceedings is the commercial television broadcasting 
company Viasat. The two defendants are, respectively, the Danish State 
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(represented by the Ministry of Culture) and the State-owned public service 
broadcasting company TV 2. TV 2 was established in 1986 as an autonomous 
institution subject to State control under the relevant rules laid down in the Law 
on Radio and Television Broadcasting. From the time at which it was established, 
TV 2 has been subject to public service obligations. Viasat and TV 2 are 
competitors on the Danish market for nationwide distribution of television 
channels. 
TV 2ʼs financing scheme during the period from 1995 to 2004 
2 The legal basis in Denmark for the financing measures in favour of TV 2 in the 
years relevant to the present case was regulated in various versions of the Law on 
Radio and Television Broadcasting: see the description thereof in the 2011 
decision. 
3 TV 2ʼs establishment and initial operations were financed using a start-up loan of 
DKK 510.8 million without capital injection. TV 2, which had been thinly 
capitalised since its establishment, financed ongoing operations through licence 
fee resources and revenues from the sale of its television advertising time, which 
sales were, until 1997, taken care of by the independent State-owned company 
TV 2 Reklame A/S. In addition, financing was derived from revenue from sales of 
programmes and other services. During the period from 1995 to 1996, the 
financing of TV 2 was regulated as follows: TV 2ʼs share of the licence fees went 
into a specific State fund, called the TV 2 fund. Profits from TV 2 Reklame A/S 
derived from that company’s aforementioned sales of advertising on TV 2 also 
went into that fund. Under Paragraph 30 of the Law on Radio and Television 
Broadcasting, ‘TV 2’s overall activities’ (that is to say, both its nationwide and its 
regional activities: for further details, see below) were financed ‘through amounts 
transferred from the TV 2 fund in accordance with the framework budgets as 
determined by the Minister for Culture’. According to the travaux préparatoires 
relating to that legislation, the reason for that scheme of channelling TV 2ʼs 
advertising revenues through TV 2 Reklame A/S and the TV 2 fund was a 
political wish to protect TV 2ʼs editorial independence. The detailed provisions 
for TV 2ʼs activities are set out in Paragraphs 29, 30 and 33 of the Law on Radio 
and Television Broadcasting (in the version in force at the time). 
4 The parties to the main proceedings disagree as to whether TV 2 Reklame A/Sʼs 
profits could be used solely to cover TV 2ʼs financing needs and whether TV 2 
was legally entitled to the revenue in question. The referring court (the Østre 
Landsret (High Court of Eastern Denmark)) has observed in this regard that the 
rules of the Law on Radio and Television Broadcasting then in force provided 
expressly that the Minister for Culture could take decisions directing that shares of 
TV 2 Reklame A/Sʼs profits were not to be transferred to the TV 2 fund. 
Similarly, the travaux préparatoires relating to that legislation stated that the 
Minister for Culture could ‘decide how big a share of the profits from advertising 
activities is to be transferred to the TV 2 fund’. The situation was thus one 
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involving financing through budgetary frameworks and not through legal 
entitlement to the advertising revenue. 
5 In practice, however, all of the profits from TV 2 Reklame A/S in both 1995 and 
1996 were transferred to the TV 2 fund. Moreover, in those same two years a total 
amount consisting of both licence fee resources and advertising revenues was 
transferred from the TV 2 fund to TV 2, although this did not include all the 
advertising revenues that were transferred from TV 2 Reklame A/S to the TV 2 
fund. 
6 TV 2 Reklame A/S and the TV 2 fund were wound up on 1 January 1997. TV 2 
then took over the sale of the company’s advertising time and thus received the 
advertising revenues directly. As from that time also, TV 2 also received licence 
fee resources directly from the other Danish public service channel DR (which 
took care of the task of collecting those fees). When the TV 2 fund was wound up, 
the fund’s assets were transferred to TV 2. 
7 In addition, during the period from 1995 to 2002 TV 2 received a number of 
advantages from the State: these related to (i) a corporation tax exemption; (ii) 
interest-free and repayment-free terms on the company’s start-up loan; (iii) a State 
guarantee for the operating loan until the end of 1996; and (iv) payment of an 
excessively low broadcasting frequency fee. Those advantages were all classified 
as existing State aid. 
8 TV 2 ceased receiving licence fees on 1 July 2004, when the autonomous 
institution was converted into the current limited liability company 
TV 2/DANMARK A/S. TV 2 was precluded from collecting subscription fees and 
did not have access to external loan financing. From the beginning TV 2 
experienced financial difficulties, essentially attributable to its thin capitalisation. 
The Danish State decided that TV 2 should build up the necessary equity through 
ongoing profits. During the period from 1995 to 2002, TV 2 went from having 
negative equity of DKK 97.8 million to having positive equity of DKK 550.5 
million. At the end of 2005, TV 2ʼs equity totalled DKK 652 million. 
TV 2ʼs public service obligations and relationship to the TV 2 regions 
9 At the time of its establishment, TV 2 had only one nationwide undertaking. 
Subsequently a number of ‘regional undertakings’ were established (‘the 
regions’). During the period in question, the TV 2 undertaking thus consisted of 
nine independent public undertakings: the nationwide undertaking and eight 
regional undertakings, with each having its own independent regional council, 
board of directors, programme council, executive board and budget and 
programming responsibility. 
10 During the period from 1995 to 2004, under the Law on Radio and Television 
Broadcasting TV 2 had an obligation to produce and broadcast nationwide and 
regional television programmes. The nationwide undertaking and the regions were 
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to broadcast their programmes on the same broadcasting network, since they 
shared broadcasting times amongst themselves. TV 2 received the advertising 
revenues generated in connection with the showing of the regional broadcasts. The 
regions did not have their own broadcasting licences and their own public service 
contracts with the State until 2003. Nor did the regions have their own articles of 
association, and they were not to submit public service reports to the Minister, as 
it was incumbent upon TV 2 to present public service accounts showing how the 
overall public service obligation was performed. This, too, was changed in 2003. 
11 As stated above, until 1997 the TV 2 fund passed on the licence fee resources to 
TV 2. As also stated, the TV 2 fund was wound up in 1997. After that time, as 
stated, TV 2ʼs overall activities were financed through TV 2ʼs share of the licence 
fee resources, through advertising revenues from advertising on TV 2 and through 
revenue from sales of programmes and other services as well as grants and so 
forth. Furthermore, TV 2 was subject to a public-law obligation to transfer an 
annual minimum amount to the regions. It was TV 2ʼs central management which 
each year fixed the ‘budget for the nationwide undertaking, including allocation of 
resources to each individual TV 2 regional undertaking’: see Paragraph 24(1) of 
the Law on Radio and Television Broadcasting. The resources that were allocated 
were to be taken from TV 2ʼs total revenue, and it was thus not required that the 
amount should come from precisely the licence fee resources received by TV 2. 
During the period from 1997 to 2002, TV 2 allocated a total of approximately 
DKK 2 billion to the regions. 
12 The referring court does not find it appropriate to characterise that allocation of 
resources to the regions as ‘… remuneration’ paid to the regions for the 
broadcasting of programmes in the regional windows, as the General Court did in 
paragraph 171 of the judgment in Case T-674/11. The reality was that, during the 
period from 1997 to 2002, TV 2 was allocated that share of the licence fee 
resources which the regions had hitherto received from the TV 2 fund, and the 
task of allocating resources to the regions was subsequently incumbent upon 
TV 2, since the latter was to allocate an amount to the regions which, according to 
the travaux préparatoires relating to the legislative amendment, was to 
correspond to at least an amount which the regions had hitherto received by 
transfer from the TV 2 fund (DKK 275 million in 1996). 
13 When the nationwide TV 2 undertaking was converted into a limited liability 
company with effect from 1 July 2004, TV 2ʼs obligation to allocate resources 
annually to the regions ceased. At the same time, the allocation of resources to 
TV 2 was amended, such that account was taken of the fact that that obligation 
was now no longer incumbent upon TV 2. Thus the amount of DKK 151.1 million 
in licence fees was transferred to TV 2 in 2003, compared with a total of DKK 
556.2 million in licence fee resources transferred to TV 2 in 2002. Instead, since 
2004 the regions have received a share of the licence fee resources directly from 
the other Danish public service channel DR. 
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The EU cases concerning TV 2ʼs financing scheme for the period from 1995 
to 2002 
14 By the 2004 decision the Commission found that the aid granted to TV 2 in the 
form of licence fee resources and other measures in the years from 1995 to 2002 
constituted notifiable State aid granted to TV 2, whilst also finding that the 
measures were compatible with the common market under Article 86(2) EC, with 
the exception of an amount of DKK 628.2 million, which the Commission 
classified as overcompensation, which accordingly had to be recovered from 
TV 2. Proceedings against the Commission’s decision were brought before the 
General Court by TV 2 and the Danish authorities, and by Viasat and Discovery 
Networks Danmark (formerly SBS Broadcasting SA/TvDanmark). 
15 In accordance with the decision, on 29 November 2004 TV 2 repaid the DKK 
628.2 million including interest and a corresponding amount for 2003, which the 
Danish authorities sought to recover on their own initiative (calculated according 
to the same method as in the 2004 decision) including interest, giving a total of 
DKK 1 073 million. 
16 As such a repayment would have rendered TV 2 insolvent, the Commission, by 
the recapitalisation decision, gave approval for the Danish Government to 
recapitalise TV 2 by increasing the latter’s capital by around DKK 440 million 
and converting a State loan of around DKK 394 million into equity. The 2004 
decision was annulled by the General Court by judgment of 22 October 2008 in 
TV 2/Danmark and Others v Commission, T-309/04, T-317/04, T-329/04 and 
T-336/04. The Commission’s new decision in the case was adopted on 20 April 
2011 (the 2011 decision). In the 2011 decision, the Commission found that, during 
the period from 1995 to 2002, TV 2ʼs financing scheme constituted notifiable 
State aid granted to TV 2. In that connection, inter alia the licence fee resources 
transferred by TV 2 to the regions during the period from 1997 to 2002 (around 
DKK 2 billion), and TV 2ʼs advertising revenues from 1995 and 1996 transferred 
to TV 2 from TV 2 Reklame A/S via the TV 2 fund (around DKK 1.5 billion) 
were classified as aid under Article 107(1) TFEU. In that connection the 
Commission found that all of the revenues transferred to TV 2 from the TV 2 fund 
from 1995 to 1997 constituted State aid granted to TV 2. At the same time, 
however, the Commission approved the total amount of the aid granted to TV 2 as 
being compatible public service compensation pursuant to Article 106(2) TFEU. 
Actions were brought against the 2011 decision before the General Court by TV 2 
and Viasat (Cases T-674/11 and T-125/12), and that decision was finally upheld in 
the judgments delivered by the Court of Justice on appeal in Cases C-649/15 P, 
C-656/15 P, C-657/15 P and C-660/15 P. The Court of Justice confirmed inter alia 
that TV 2 Reklame A/S and the TV 2 fund were public undertakings controlled by 
the Danish State, that their resources were available to the State and that it was 
therefore a matter involving an advantage financed using State resources. For a 
more detailed description of the proceedings, reference is made to, in particular, 
the judgments of the Court of Justice in Cases C-649/15 P and C-660/15 P. 
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Other State aid cases concerning TV 2 
17 In parallel with the State aid case concerning TV 2ʼs financing measures during 
the period from 1995 to 2002, three other State aid cases concerning TV 2 were 
also pending: the recapitalisation case, the rescue aid case and the restructuring 
case, which will be described briefly herein. 
18 The recapitalisation case arose from the repayment of aid made by TV 2 as a 
result of the 2004 decision, and concerned the Danish State’s recapitalisation of 
TV 2. In the 2004 recapitalisation decision, the Commission approved the 
recapitalisation of TV 2 under (at the time) Article 86(2) EC. Actions were 
brought against that decision before the General Court, which, in Cases T-12/05 
and T-16/05, held that it was unnecessary to adjudicate on the case because the 
recapitalisation measures were closely linked to the 2004 decision and therefore 
had to be assessed as a whole by the Commission in connection with the fresh 
examination of TV 2ʼs financing scheme for the years 1995 to 2002. 
19 The rescue aid case arose from TV 2’s encounter with cash-flow difficulties in 
2008. On that basis, the State decided to grant TV 2 rescue aid in the form of a 
credit facility, which was approved as rescue aid by the Commission by the rescue 
aid decision. An action was brought against that decision before the General Court 
(Case T-114/09) but was subsequently discontinued. 
20 The restructuring case concerned the restructuring plan notified by the Danish 
authorities to the Commission on 4 February 2009 by way of a follow-up to the 
rescue aid decision. By the restructuring decision the Commission approved the 
restructuring plan, subject to certain conditions, including the possibility for TV 2 
to introduce end-user charges (‘the restructuring decision’). An action was 
brought against that decision before the General Court (Case T-210/02) but was 
subsequently discontinued. 
The national proceedings concerning TV 2ʼs financing scheme during the 
period from 1995 to 2004 
21 The present proceedings were brought by Viasat on 28 February 2006, but were 
stayed pending the outcome of various sets of proceedings before the EU Courts 
concerning TV 2ʼs financing scheme. 
22 Following the Court of Justice’s judgments in Cases C-649/15 P, C-656/15 P, 
C-657/15 P and C-660/15 P, it has become finally established that the measures 
granted in favour of TV 2 in the years from 1995 to 2002 constituted notifiable 
State aid that is compatible with the internal market pursuant to Article 106(2) 
TFEU. The measures, including the resources transferred to the regions (see Case 
T-674/11), were granted contrary to the stand-still obligation set out in 
Article 108(3) TFEU. It is also established that TV 2ʼs (the nationwide 
undertaking’s) entire programming could be held to be public-service television 
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and that all costs associated therewith could thus be held to be public service costs 
(see Case T-309/04). 
Principal arguments relied on by the parties to the main proceedings  
The first question  
Submissions of TV 2 and the Ministry of Culture 
23 According to TV 2 and the Ministry of Culture, a fundamental distinction must be 
drawn between public service compensation granted within the framework of 
Article 106(2) TFEU and State aid granted under Article 107(3) TFEU. No undue 
interest advantage, as contemplated in the CELF judgment, arose for TV 2 
because costs of external financing during a given period of illegality would only 
have led to a corresponding increase in TV 2ʼs public service costs and because, 
in the light of the presumptions that formed the basis of the 2011 decision, it 
would have been necessary to increase TV 2ʼs public service compensation 
correspondingly so as to cover the resulting under-coverage and ensure TV 2ʼs 
equity and its ability to perform its public service mission. 
24 Public service compensation is characterised by the fact that the undertaking being 
compensated has an obligation imposed on it to provide services in the public 
interest in a manner that hampers the undertaking’s competitiveness, and 
involving services which the undertaking would not have assumed freely if 
operating on market terms. Public service aid also includes the aspect that the 
magnitude of the compensation received must not go beyond what is necessary to 
cover the net costs associated with performing the public service obligations and 
possibly a reasonable profit. 
25 As a result of those characteristics, under Article 106(2) TFEU recipients of 
public service compensation do not gain an undue competitive advantage from the 
aid. Even if the aid itself does not entail a competitive advantage, a premature 
payment will in itself also not constitute an undue competitive advantage. On the 
other hand, enforcement of an illegality interest claim against TV 2 will result in 
TV 2ʼs public service activities having been undercompensated, thereby entailing 
a distortion of competition in favour of TV 2ʼs competitors, including Viasat, and 
jeopardise the performance of TV 2ʼs public service mission. It follows that — 
even though the stand-still obligation is also applicable to aid under Article 106(2) 
TFEU — there is no obligation to charge illegality interest in order to neutralise 
an undue advantage. 
26 This must in any event hold true in a situation such as the one at issue here, in 
which the aid in question has been declared by the Commission in the 2011 
decision — and subsequently also in the recapitalisation decision and the 
restructuring decision — to be compatible with the internal market on the basis of 
an assessment of the entire public service undertaking’s overall financial situation, 
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including its capitalisation. Allowing a claim for illegality interest to succeed in 
such a situation would, it is argued, render nugatory the Commission’s decisions 
and undermine the Commission’s competence under Article 106(2) TFEU. 
Submissions of Viasat 
27 Viasat has argued that public service aid approved under Article 106(2) TFEU is 
no different from aid approved under Article 107(3) TFEU. Illegality interest, it 
submits, must therefore be paid in both cases. 
28 Viasat has referred to the judgment in Case C-657/15 P, in which the Court of 
Justice held that the public service remuneration paid to TV 2 entailed a financial 
advantage for TV 2, as it was granted contrary to the conditions laid down in the 
in the Altmark judgment. Furthermore, under Article 106(2) TFEU it is possible to 
earn a reasonable profit in connection with the performance of a public service 
mission. In accordance therewith, and as stated in the 2011 decision, TV 2 has 
been able to accumulate a total profit of DKK 628.2 million. 
29 In the television sector a very broad definition of public service is recognised, in 
which all of TV 2ʼs costs are regarded as public service costs. In Viasat’s 
submission, on that basis it is often more advantageous to receive aid under 
Article 106(2) TFEU than under Article 107(3) TFEU. There are numerous 
examples of contractual public service obligations where the undertaking 
voluntarily enters into agreements with the State in order to provide a public 
service. 
30 The aid to culture that was at issue in CELF constituted compensation for costs 
associated with the production and export of French-language books. It is 
therefore broadly comparable to the public service aid in the present case. It would 
be artificial to treat the aid granted in CELF differently from the aid granted to 
TV 2. 
31 In Viasat’s submission, the line of argument put forward by the Ministry of 
Culture and TV 2 would undermine the actual effectiveness of the Member States’ 
notification and stand-still obligation in the field of aid granted under 
Article 106(2) TFEU, as it would have the result that a failure to notify would 
entail no consequences. Furthermore, it would leave competitors without legal 
remedies and render nugatory the Altmark judgment if it were not possible for 
competitors to demand payment of illegality interest in a situation such as that in 
the present case, where the aid was granted in non-compliance with Article 108(3) 
TFEU and in non-compliance with the conditions laid down in the Altmark 
judgment concerning transparency, public procurement and efficient operation. 
Assessment by the referring court 
32 The referring court has stated that it is settled case-law of the Court of Justice that 
the principal objective behind demanding repayment of unlawfully-granted State 
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aid is to eliminate the distortion of competition caused by the competitive 
advantage gained through unlawful aid. The undue advantage for the aid 
recipient — even in cases where the aid is subsequently declared compatible — 
consists inter alia in the non-payment of the interest which it would have paid on 
the amount of compatible aid, had it been obliged to borrow that amount on the 
market during the period of unlawfulness: see the judgment in CELF; Eesti Pagar, 
C-349/17, paragraph 130; and Residex Capital IV CV, C-275/10, paragraphs 33 
and 34. 
33 The referring court finds in this connection that it is not certain that the character 
of a public service obligation under Article 106(2) TFEU suggests that the general 
State aid legal principle about illegality interest in cases involving infringements 
of the stand-still obligation under Article 108(3) TFEU must not be applicable in 
cases concerning aid in the form of compensation for public service obligations. 
34 The aid granted to a public service undertaking is given for the purpose of the 
performance of a public service mission, not for the purpose of providing 
compensation for the burden associated with paying illegality interest. The 
payment of illegality interest in itself can scarcely be viewed as fulfilment of a 
public service obligation. 
35 On that basis, it is doubtful whether it can be argued, purely as a matter of law, 
that the payment of illegality interest increases the aid recipient’s costs associated 
with providing public service activities. For the same reason, the argument put 
forward by TV 2 and the Ministry of Culture, to the effect that the imposition of 
illegality interest would lead to ‘undercompensation’ for the public service 
undertaking’s performance of its mission, does not prima facie appear to be 
correct. 
36 The imposition of illegality interest will not always mean that an undertaking that 
performs a public service will lack the resources necessary to perform its public 
service obligation, since the Altmark judgment is, after all, based on a 
presumption that, depending on the circumstances, some profit may be recognised 
in an aid measure that is compatible under Article 106(2) TFEU. Conversely, the 
possibility also cannot be ruled out that an undertaking that has received aid other 
than public service aid will suffer a net loss on an aid-supported activity affected 
by a claim for illegality interest. In that connection, it is conceivable that the 
undertaking in question, as a result of a claim for payment of illegality interest, 
may have to cease to perform that aid-supported activity and thus that the State aid 
will not have the intended effect in the same manner as might be contemplated in 
relation to a public service undertaking. 
37 The referring court is aware that the payment of illegality interest will, depending 
on the circumstances, mean that a public service aid recipient will be able to 
survive only if it receives a capital injection and that, therefore, a capital injection 
may be necessary in order for the State to achieve the objective that the aid is 
intended to promote. This may also be the case for other aid recipients, however. 
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Furthermore, it is obvious to assume that the compatibility of such new aid in a 
given case — in the same manner as unforeseen losses, which each and every aid 
recipient must have suffered — must be assessed on the basis of the aid needs 
which the undertaking might have at that time. 
The second question  
Submissions of TV 2 and the Ministry of Culture 
38 TV 2 and the Ministry of Culture take the view that the resources transferred to 
the regions (around DKK 2 billion) (‘the regional resources’) must be deducted 
from the basic amount to be used in the calculation of a possible illegality interest 
claim in the present case. 
39 In this connection, TV 2 and the Ministry of Culture submit that it is wrong for 
Viasat, referring to the General Court’s judgment in Case T-674/11, to argue that 
the regional resources constituted TV 2ʼs payment of remuneration to the regions 
for the broadcast of regional programmes in the regional windows and that the 
resources reduced a burden that otherwise would have been incumbent upon 
TV 2. 
40 The Danish State had chosen to organise the public service mission imposed on 
the overall TV 2 undertaking in such a way that it was divided into a regional and 
a nationwide obligation imposed on each independent undertaking within TV 2 
overall. The obligation to broadcast regional programmes was incumbent upon — 
and is still incumbent upon — the regions, while the nationwide obligation was to 
be taken care of by the nationwide undertaking. Thus, TV 2’s sole obligation was 
to round out the nationwide programming with programmes and to make 
broadcasting time available for the regions by giving them access to windows in 
the nationwide programming, where they could broadcast regional content. The 
regions, for their part, were under an obligation to produce and broadcast regional 
programmes in those windows. 
41 The regional resources were the Danish State’s compensation to the regions for 
fulfilment of the regions’ obligation to broadcast regional television programmes. 
The resources did not lessen any ‘burden’ for the nationwide undertaking in the 
form of a ‘regional obligation’. The nationwide undertaking had no such 
obligation under Danish law. 
42 Thus, during the period from 1997 to 2002, TV 2 acted solely as an intermediate 
passing on the regional resources and did not draw any advantage therefrom. TV 2 
did not obtain any more or less by carrying out the task as intermediate during the 
period from 1997 to 2002 than during the period prior to 1997, when the TV 2 
fund, without TV 2ʼs intervention as intermediary, passed on the State’s 
compensation to the regions, or after 2002, when the regions received their share 
of the licence fee resources directly from DR. 
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43 The fact that the scheme under which TV 2 as intermediary passed on the regional 
resources was implemented without prior approval from the Commission under 
Article 108(3) TFEU therefore did not give TV 2 either an interest advantage or 
any undue improvement in its market position. So far as the regional resources are 
concerned, it is therefore particularly the case that they have not had the unlawful 
effects referred to by the Court of Justice in its judgment in CELF. 
44 TV 2 and the Ministry of Culture have referred to recital 194 of the 2011 decision, 
in which it is stated that, because the sums were transferred to TV 2 and then 
transferred to the regions, the Commission included those sums in the calculations 
as both revenue and expenditure, which in practice means that they did not affect 
the Commission’s proportionality assessment. Similarly, during the proceedings in 
Case T-6[74]/11, the Commission argued that TV 2 was not the recipient of the 
aid that was passed on to the regional stations and that it also did not derive any 
advantage from its role as intermediary. Therefore, according to the Commission, 
TV 2 could not be under any obligation to pay illegality interest on the aid 
amounts. According to the Commission, this substantiated the point that TV 2 had 
no legal standing with regard to the contested decision in so far as that question 
was concerned. 
45 TV 2 and the Ministry of Culture have referred to paragraph 41(a) (note 65) of the 
cooperation notice, in which it is stated that taxes paid on the nominal aid amount 
may be deducted for the purposes of recovery of illegality interest, and to the 
recovery notice, in which it is stated that, in calculating the amount to be repaid, 
national authorities may take account of the impact of the tax rules, so that only 
the net amount is recovered from the recipient.  
46 Lastly, TV 2 and the Ministry of Culture have referred to the judgment of the 
General Court in Case T-459/93, in which it is stated that, in the recovery of 
unlawful and incompatible State aid pursuant to a Commission decision, national 
authorities may, as a rule, deduct certain amounts under national rules. TV 2 and 
the Ministry of Culture contend that the situation in the present case, in which 
TV 2 transferred licence fee resources to the regions (as a minimum equivalent to 
the 1996 level) pursuant to an obligation laid down in the Law on Radio and 
Television Broadcasting, bears similarities to the situation in which a share of the 
aid amount is paid to the tax authorities as a result of a statutory fiscal obligation. 
Submissions of Viasat 
47 Viasat has disputed the submissions put forward by TV 2 and the Ministry of 
Culture. Viasat has submitted that it follows from paragraph 51 of the judgment in 
CELF that the allocation of unlawful State aid gives rise to an advantage for the 
recipient corresponding to what the interest costs would have been if an amount 
equivalent to the entire compatible aid amount had been borrowed on market 
terms. It is that advantage that the payment of illegality interest is designed to 
neutralise. Since the entire aid amount granted to TV 2 was compatible State aid 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-445/19 
 
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covered by Article 107 TFEU, illegality interest must accordingly also be paid on 
the entire amount. 
48 Viasat has further pointed out that the General Court in Case T-674/11 
(paragraphs 152 to 173) and the Court of Justice in Case C-649/15 P 
(paragraphs 48 to 58) rejected the argument that the regional resources should be 
deducted from the aid amount, just as the EU Courts rejected the line of argument 
put forward by the Commission in the case, as no support for such a position was 
to be found in the contested decision. 
49 In Viasat’s submission, the regional resources reduced a burden that otherwise 
would have been incumbent upon TV 2, namely, the obligation to produce and 
broadcast regional programmes. According to Viasat, the regional resources were 
in reality remuneration paid by TV 2 to the regions for a service that TV 2 
alternatively would have had to purchase from another supplier.  
50 Viasat has also contended that, although TV 2 was subject to a public-law 
obligation to transfer an annual minimum amount to the regions, it was not 
specified how that amount was to be financed, including whether it was to come 
out of TV 2ʼs licence or advertising revenues. Thus, TV 2 decided itself which 
revenue sources would be used to remunerate the regions. TV 2ʼs obligation to 
finance the activities of the regions would also have been the same if TV 2 did not 
receive licence fee resources: see the judgment of the General Court in Case 
T-674/11, paragraph 173. 
51 Viasat submits that it does not follow from the recovery notice or the cooperation 
notice that deductions can be made for anything other than tax in a recovery 
claim. The same holds true for the abovementioned Case T-459/93. Those three 
sources concern only tax payments and do not lay down a general principle that 
there should not be repayment of aid resources. In Viasat’s submission, TV 2ʼs 
transfer of resources to the regions cannot be compared to the payment of taxes. In 
the case of payment of taxes, the resources are already owing to the State and 
recovery will, therefore, actually entail double payment, which is not the case 
here. 
Assessment by the referring court 
52 The referring court has observed that the Commission’s decisions concern solely 
the nationwide TV 2. The regions, by contrast, were not the subject matter of the 
Commission’s decisions and accordingly they are not by their nature aid recipients 
for the purposes of those decisions. Underlying this question is also the aspect that 
the transfers made by TV 2 to the regions were not deducted in the amount which 
the EU bodies regarded as being State aid granted to TV 2. Thus, it can be argued 
that the amounts that were transferred to the regions — irrespective of the fact that 
they have been classified as aid — in reality are subtracted from the net advantage 
conferred on TV 2 through the aid. 
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53 The referring court does not find it appropriate to characterise the allocation of 
resources made by TV 2 to the regions during the period from 1997 to 2002 as 
remuneration paid to the regions for the broadcasting of programmes in the 
regional windows. The reality was that, during those years, TV 2 was allocated 
that share of the licence fee resources which the regions had hitherto received 
from the TV 2 fund, and the task of allocating resources to the regions thereafter 
was incumbent upon TV 2, as TV 2 was to allocate an amount which, as a 
minimum, was to correspond to the amount which the regions had hitherto 
received from the TV 2 fund. 
54 The understanding of Danish law during the period from 1997 to 2002 that was 
used as a basis by the General Court for its categorisation of the regional resources 
as State aid in Case T-674/11 is not binding for the purposes of the present case, 
as the determination of the correct interpretation of Danish law in a dispute before 
a Danish court is a matter for that Danish court. This must also hold true in 
relation to the Court of Justice’s answer to the questions referred in the case. The 
referring court has clarified the point that the dispute in the present case does not 
concern the categorisation of the regional resources as State aid under 
Article 107(1) TFEU. That categorisation is not challenged in the case. The case 
concerns solely the question of which consequences follow from the non-
compliance with Article 108(3) TFEU, including which understanding of Danish 
law should form the basis of the Court of Justice’s examination of the issues of 
EU law raised. 
55 The referring court agrees with the Ministry of Culture and TV 2 on the point that 
the CELF judgment does not address the question as to whether a possible 
obligation to pay illegality interest can be extended also to apply in respect of aid 
which is, in reality, passed on to other undertakings. 
The third question 
Submissions of TV 2 and the Ministry of Culture 
56 TV 2 and the Ministry of Culture have submitted that the advertising revenues 
from 1995 and 1996 that were transferred from TV 2 Reklame A/S through the 
TV 2 fund (around DKK 1.5 billion) (‘the advertising revenues’) must be 
deducted from the amount to be applied in the calculation of a possible illegality 
interest claim. Their view is that the advertising revenues constituted payment for 
TV 2ʼs supply of advertising time to private advertisers. The categorisation of the 
resources as State aid was due solely to the fact that, until 1997, the revenue was 
channelled from the advertisers through the two State-owned entities TV 2 
Reklame A/S and the TV 2 fund. However, according to TV 2 and the Ministry of 
Culture, TV 2 did not obtain more or less through that scheme than its competitors 
on the television advertising market and nor did it obtain more or less in the 
period after 1997, when TV 2 itself was responsible for its advertising time and 
for which the advertising revenues have not been categorised as State aid. 
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According to TV 2 and the Ministry of Culture, this means that the advertising 
revenues did not lead to an undue improvement of TV 2ʼs competitive position as 
contemplated in the CELF judgment and that those amounts accordingly should 
not be included in the calculation of a possible illegality interest claim. 
Submissions of Viasat 
57 Viasat has submitted that the line of argument put forward by TV 2 and the 
Ministry of Culture runs counter to the Court of Justice’s judgment in Case 
C-657/15 P, in which it was held that the entire aid amount granted to TV 2 — 
including the advertising revenues — constituted State aid. The immediate 
consequence of this is that the revenue should not be regarded merely as payment 
to TV 2 for TV 2ʼs services, as that would lead to its not being State aid. The 
Court of Justice based this position on, inter alia, the fact that TV 2 would not 
have received the resources under any circumstances. 
58 The advertising revenues accrued to the TV 2 fund, from which they could also be 
used for purposes other than the financing of TV 2. It was thus a case of State 
resources made available to TV 2, which could then use them in its activities. 
According to Viasat, TV 2 thus also obtained an interest advantage through the 
resources having been made available before the Commission issued its approval. 
Assessment by the referring court 
59 As stated above, the parties to the main proceedings disagree as to whether TV 2 
Reklame A/Sʼs profits could be used solely to cover TV 2ʼs financing needs and 
whether TV 2 was legally entitled to the revenues in question. The referring court 
asks the Court of Justice, in its answer to the third question, to use as a basis the 
understanding of Danish law as set out above by the referring court. The Court of 
Justice is thus asked to answer the question on the basis of the assumption that in 
1995 and 1996 TV 2 was not legally entitled to (all of) the advertising revenues 
derived from making advertising space available on TV 2ʼs programming. On this 
point, therefore, the Court of Justice can base itself on the understanding of 
Danish law as expressed in recital 81 et seq. of the 2011 decision. 
60 The referring court further finds that it is worth considering whether or not the 
infringement of the stand-still obligation in that respect in fact conferred a cash 
flow advantage on TV 2 in relation to the advertising revenues. Thus, the 
argument can be made that the decisions taken by the Minister for Culture to 
transfer resources from TV 2 Reklame to the TV 2 fund and from that fund on to 
TV 2 amounted to preferential treatment of TV 2, which — had the notification 
rules been observed — could not have been implemented until the Commission, 
either generally or on an annual basis, had approved the transfers.  
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Brief presentation of the grounds for the request  
61 In order for the referring court to be able to rule on the claims put forward by the 
applicant regarding payment of illegality interest, it must first obtain a ruling on a 
number of questions of EU law which do not appear to have been clarified in the 
case-law of the EU Court of Justice.