JUDGMENT OF THE GENERAL COURT (Ninth Chamber)
14 May 2025 (*)
( Actions for annulment – State aid – Digital terrestrial television (DTT) – Extension by the Czech Republic of frequency usage rights allocated to certain operators for the broadcasting of DTT – Decision finding no State aid – Provider of satellite and internet television services – Trade association – Locus standi – No individual concern – Non-regulatory act – Inadmissibility )
In Joined Cases T‑362/21 and T‑363/21,
Telly s. r. o., established in Prague (Czech Republic),
Česká asociace satelitních operátorů z. s., established in Prague,
represented by R. Kubáč, lawyer,
applicants,
v
European Commission, represented by L. Nicolae and C. Kovács, acting as Agents,
defendant,
supported by
Czech Republic, represented by M. Smolek, J. Vláčil, J. Očková and L. Halajová, acting as Agents,
intervener,
THE GENERAL COURT (Ninth Chamber),
composed of L. Truchot, President, M. Sampol Pucurull (Rapporteur) and T. Perišin, Judges,
Registrar: P. Núñez Ruiz, Administrator,
having regard to the written part of the procedure, in particular:
–        the orders of 15 September 2022 granting the Czech Republic leave to intervene in support of the form of order sought by the Commission,
–        the Court’s written questions to the parties of 21 October 2021, 19 September 2022, 8 November 2023 and 13 May 2024 and the replies to those questions,
–        the decision of 7 May 2024 joining Cases T‑362/21 and T‑363/21 for the purposes of the oral part of the procedure and of the decision which closes the proceedings,
further to the hearing on 13 September 2024,
gives the following
Judgment
1        By their actions under Article 263 TFEU, the applicants, Telly s. r. o. and Česká asociace satelitních operátorů z. s. (‘ČASO’), seek the annulment of Commission Decision C(2021) 1601 final of 15 March 2021 on State aid SA.55805 (2020/FC) – Czech Republic – Extension of digital terrestrial television (DTT) network operators’ frequency licenses (OJ 2021 C 177, p. 1; ‘the contested decision’).
Background to the dispute
2        The contested decision concerns the extension in the Czech Republic, until 31 December 2030, of the frequency usage rights held by certain network operators for the broadcasting of digital terrestrial television (‘the DTT licences’), namely České Radiokomunikace a.s. (‘ČRa’), its wholly owned subsidiary Czech Digital Group a.s. (‘CDG’), Česká televize (‘ČT’) and Digital Broadcasting (‘DB’). The DTT licences were to expire on 11 May 2021 (ČRa), 4 March 2022 (DB), 30 May 2023 (ČT) and 10 January 2024 (CDG), respectively.
3        The extension of the DTT licences takes place in the context of the release of the 694-790 MHz frequency band (‘the 700 MHz band’) imposed by Decision (EU) 2017/899 of the European Parliament and of the Council of 17 May 2017 on the use of the frequency band 470-790 MHz in the Union (OJ 2017 L 138, p. 131).
4        In accordance with Decision 2017/899, Member States were to release the 700 MHz band in favour of wireless broadband electronic communications services, in principle by 30 June 2020. In addition, Member States were to ensure availability at least until 2030 of the 470-694 MHz frequency band for the terrestrial provision of broadcasting services, including free television.
5        On 20 July 2016, in anticipation of the development of the applicable EU legislation by the forthcoming adoption of Decision 2017/899, the Czech Government approved the usnesením vlády č. 648/2016 o Strategie rozvoje zemského digitálního televizního vysílání (Government Order No 648/2016 on the DTT development strategy; ‘the 2016 strategy’). As at that date, DTT was broadcast in the Czech Republic, as in other Member States, in the 700 MHz band. The Czech authorities had granted, free of charge, four DTT licences for the use of four national multiplexes in that band under the DVB-T/MPEG-2 standard (‘the DVB-T standard’).
6        The 2016 strategy set out the roadmap for migrating DTT to the 470-694 MHz frequency band and announced the modernisation, to that end, of DTT networks in the Czech Republic by migrating from the DVB-T standard to the DVB-T2/HEVC standard (‘the DVB-T2 standard’), and, among other measures, the extension of the DTT licences until 2030.
7        For those purposes, the 2016 strategy provided for, inter alia, the subsequent amendment of the Zákon č. 127/2005 Sb., o elektronických komunikacích (Law No 127/2005 on electronic communications; ‘Law No 127/2005’) and the drawing up and approval of a national technical plan for the migration to the DVB-T2 standard (‘the technical transition plan’).
8        On 27 July 2016, ČASO was set up for the purpose of, inter alia, safeguarding and promoting the collective and individual interests of the members of that association, namely providers of satellite and internet television services (Internet Protocol Television, IPTV) in the Czech Republic.
9        On 19 September 2016, ČASO lodged a complaint with the European Commission claiming that the support measures provided for in the 2016 strategy with the aim of promoting the migration from the DVB-T standard to the DVB-T2 standard in the context of the release of the 700 MHz band, including the extension of the DTT licences until 2030, constituted incompatible State aid, which unduly favoured DTT network operators and, indirectly, television service providers using that network, contrary to the principle of technological neutrality. The complaint was supplemented by ČASO on several occasions between 2017 and 2020.
10      On 2 December 2016, the Czech authorities pre-notified the Commission of the measures planned under the 2016 strategy, including the resolve to extend the DTT licences until 2030.
11      On 19 July 2017, the Zákon č. 252/2017 Sb., kterým se mění zákon č. 127/2005 Sb. (Law No 252/2017 amending Law No 127/2005; ‘Amendment No 252/2017’) was adopted in accordance with the roadmap set out in the 2016 strategy (see paragraphs 6 and 7 above).
12      On 14 February 2018, DIGI CZ s. r. o., now Telly, lodged a complaint with the Commission, which was supplemented on several occasions between 2018 and 2019. Telly is a provider of pay TV services via satellite and internet (IPTV).
13      On 29 August 2018, the technical transition plan announced in the 2016 strategy was approved by decree.
14      Between 31 May and 12 June 2019, at the request of the DTT licence holders and in accordance with the procedure provided for by Paragraph 22a(1) of Law No 127/2005, referred to in Article II(5) of Amendment No 252/2017, the Český telekomunikační úřad (Czech telecommunications regulatory authority; ‘the regulatory authority’) organised four public consultations on the amendment of the DTT licences by extending their validity until 31 December 2030.
15      The third-party observations gathered by the regulatory authority were published on 30 July 2019.
16      On 30 September 2019, the regulatory authority announced that the chair of its council had adopted two decisions to amend the DTT licences held by DB and ČT by extending their validity until 31 December 2030.
17      On 21 November 2019, the regulatory authority announced that the chair of its council had adopted two decisions to amend the DTT licences held by CDG and ČRa by extending their validity until 31 December 2030.
18      On 15 March 2021, the Commission adopted the contested decision following five requests for information sent to the Czech authorities on 6 March 2017, 20 October 2017, 24 July 2018, 13 March 2019 and 26 February 2020.
19      In the contested decision, the Commission found that the extension of the DTT licences held by ČRa, CDG, ČT and DB did not constitute State aid within the meaning of Article 107(1) TFEU, in the absence of financing from State resources. In that regard, the Commission noted in particular that the DTT licences had always been granted free of charge in the Czech Republic, and hence extending their validity without receiving any consideration did not involve foregoing State revenues. The Commission also noted that EU law did not require national authorities to grant the DTT licences in return for a fee.
Forms of order sought
20      The applicants claim that the Court should:
–        annul the contested decision;
–        order the Commission to pay the costs.
21      The Commission, supported by the Czech Republic, contends that the Court should:
–        dismiss the actions;
–        order the applicants to pay the costs.
Law
Admissibility of the Czech Republic’s applications to intervene and statements in intervention
22      The applicants observe that the Czech Republic submitted its applications to intervene in support of the form of order sought by the Commission on 27 October 2021. However, according to the applicants, those applications should have been submitted by 25 October 2021 at the latest, in compliance with the time limit prescribed by Article 143(1) of the Rules of Procedure of the General Court. Accordingly, they submit that those applications, together with the Czech Republic’s statements in intervention, are inadmissible.
23      In that regard, it should be borne in mind that, in accordance with Article 143(1) of the Rules of Procedure, an application to intervene is to be submitted within six weeks of the publication of the notice referred to in Article 79 of those rules.
24      Article 79 of the Rules of Procedure provides that a notice is to be published in the Official Journal of the European Union indicating the date of lodging of the application initiating proceedings, the names of the main parties, the form of order sought by the applicant and a summary of the pleas in law and of the main supporting arguments.
25      Article 60 of the Rules of Procedure provides that procedural time limits are to be extended on account of distance by a single period of 10 days.
26      In the present case, the notices referred to by Article 79 of the Rules of Procedure concerning the lodging of the actions were published in the Official Journal on 13 September 2021 (OJ 2021 C 368, pp. 22 and 23).
27      In accordance with the criteria laid down by Article 143(1) and Article 60 of the Rules of Procedure, the period for submitting applications to intervene in the present actions expired on 4 November 2021, including the extension on account of distance.
28      The Czech Republic submitted its applications to intervene on 27 October 2021.
29      The applications to intervene having been submitted within the period prescribed by the Rules of Procedure, they were granted by the President of the Seventh Chamber of the General Court by two orders of 15 September 2022.
30      In those circumstances, the pleas of inadmissibility raised by the applicants concerning the inadmissibility of the Czech Republic’s applications to intervene and statements in intervention must be rejected.
The requests for the omission of certain data vis-à-vis the public
31      On the basis of Article 144(2) of the Rules of Procedure, the applicants requested that certain data contained in the applications, replies and rejoinders as well as in a number of annexes be omitted vis-à-vis the Czech Republic. A fortiori, that request is understood by the Court, in essence, as also seeking to omit those data vis-à-vis the public on the basis of Articles 66 and 66a of the Rules of Procedure.
32      The Czech Republic did not object to those requests for confidential treatment.
33      Where a party makes a request under Article 144(2) of the Rules of Procedure, the President is, in principle, to give a decision solely on the documents and information the confidentiality of which is disputed (see, to that effect and by analogy, order of 26 January 2018, FV v Council, T‑750/16, not published, EU:T:2018:59, paragraph 14 and the case-law cited).
34      However, even where confidentiality is not disputed, the Court cannot be prevented from refusing requests for confidential treatment to the extent that they relate to data the public nature of which is obvious from the material in the file or the confidential nature of which has clearly become obsolete as a result of the disclosure of other material in the file (order of 15 September 2016, Deutsche Telekom v Commission, T‑827/14, not published, EU:T:2016:545, paragraph 46). Therefore, in certain circumstances, the Court may decide to rule on the non-contested aspects of a request for confidential treatment (see, to that effect, order of 11 April 2019, Google and Alphabet v Commission, T‑612/17, not published, EU:T:2019:250, paragraph 16).
35      It should also be borne in mind that, in accordance with settled case-law, information which was confidential, but which is at least five years old, must for that reason be considered historical and be communicated to the other parties, unless, exceptionally, the party seeking to preserve that confidentiality shows that, in spite of its age, that information still constitutes essential secrets, such as industrial or commercial secrets, disclosure of which would harm that party or the third party concerned (see order of 11 April 2019, Google and Alphabet v Commission, T‑612/17, not published, EU:T:2019:250, paragraph 19 and the case-law cited).
36      Furthermore, the Court, in applying Articles 66 and 66a of the Rules of Procedure, must reconcile the principle that judicial decisions are to be made public with the right to the protection of personal data and the right to the protection of professional secrecy, regard also being had to the public’s right of access, in accordance with the principles laid down in Article 15 TFEU, to judicial decisions (see, to that effect and by analogy, judgment of 5 October 2020, Broughton v Eurojust, T‑87/19, not published, EU:T:2020:464, paragraph 49).
37      In the present case, the Court has decided not to redact, in the public version of the present judgment, certain information covered by the applicants’ requests for confidential treatment, the confidentiality of which has not been disputed by the Czech Republic. Some of that information, apart from the fact that it is historical, may be deduced from the content of other parts of the files in relation to which no request for confidential treatment has been submitted. Furthermore, certain passages of the pleadings referred to by the requests for confidential treatment concern certain aspects of the applicants’ claim that they are individually concerned in the light of the criteria set out in the judgment of 15 July 1963, Plaumann v Commission (25/62, EU:C:1963:17, p. 107), and contain assertions which are clearly not confidential in nature, such as the description of the various types of television services, recent developments in the television broadcasting market in the Czech Republic and the alleged impact on that market of extending the DTT licences. The redaction of that information would affect the public’s understanding of the Court’s judgment (see, to that effect, judgment of 2 February 2022, Scania and Others v Commission, T‑799/17, EU:T:2022:48, paragraph 82).
Admissibility of the actions
38      Pursuant to the fourth paragraph of Article 263 TFEU, any natural or legal person may institute proceedings against an act addressed to that person (first situation) or which is of direct and individual concern to them (second situation), and against a regulatory act which is of direct concern to them and does not entail implementing measures (third situation).
39      Without formally raising objections of inadmissibility under Article 130(1) of the Rules of Procedure, the Commission, supported by the Czech Republic, disputes the admissibility of the actions in the light of the conditions laid down by the fourth paragraph of Article 263 TFEU.
40      The applicants maintain that they satisfy the conditions for admissibility provided for by the second situation referred to in the fourth paragraph of Article 263 TFEU.
41      It is common ground that the contested decision is addressed solely to the Czech Republic and not to the applicants. That is because the procedure for reviewing State aid is, in view of its general scheme, a procedure initiated in respect of the Member State responsible for granting the aid (judgments of 24 March 2011, Freistaat Sachsen and Land Sachsen-Anhalt v Commission, T‑443/08 and T‑455/08, EU:T:2011:117, paragraph 50, and of 12 November 2015, HSH Investment Holdings Coinvest-C and HSH Investment Holdings FSO v Commission, T‑499/12, EU:T:2015:840, paragraph 28). The present actions cannot therefore be declared admissible under the first situation provided for by the first limb of the fourth paragraph of Article 263 TFEU.
42      Before proceeding to analyse, in turn, whether the applicants satisfy the conditions provided for by the second and third situations referred to in the fourth paragraph of Article 263 TFEU, it is necessary to examine the specific situation of ČASO as a trade association.
The specific situation of ČASO as a trade association
43      It should be borne in mind that actions brought by associations or groups are, according to case-law, admissible in three situations, namely where they represent the interests of persons who themselves would have standing to bring proceedings, or where they are distinguished individually because of the impact on their own interests as an association or as a group, particularly because their position as negotiator has been affected by the act whose annulment is sought, or again where a legal provision expressly grants them a number of powers of a procedural nature (see order of 23 November 2015, Milchindustrie-Verband and Deutscher Raiffeisenverband v Commission, T‑670/14, EU:T:2015:906, paragraph 14 and the case-law cited).
44      Where an association brings an action on behalf of its members, it acts in place of its members. Consequently, if the members of that association have brought their own actions, the association’s action cannot be declared admissible on the basis that the association is representing its members (see, to that effect, order of 29 March 2012, Asociación Española de Banca v Commission, T‑236/10, EU:T:2012:176, paragraph 24 and the case-law cited).
45      In support of the admissibility of its action, ČASO argues, at the application stage, that it is a trade organisation representing the interests of satellite operators in the Czech Republic, all of which are affected by the extension of the DTT licences and, consequently, by the contested decision. ČASO also relies on its status as complainant before the Commission.
46      In response to a question from the Court, ČASO stated in the reply that it was basing its locus standi on that of its members, namely Telly and Canal + Luxembourg Sàrl, formerly known as M7 Group (‘the other member of ČASO’). ČASO did not claim that it was basing its locus standi on its own interests or on a legal provision which expressly grants it a number of powers of a procedural nature, within the meaning of the case-law cited in paragraph 43 above. When asked by the Court at the hearing, ČASO confirmed that it had only those two members.
47      It is apparent from ČASO’s articles of association that that association may act to defend the collective and individual interests of its members, which is not disputed by the Commission.
48      However, since Telly brought its own action for the annulment of the contested decision, ČASO cannot rely on the individual standing of that member of the association to bring proceedings, in accordance with the case-law cited in paragraph 44 above.
49      Accordingly, the admissibility of ČASO’s action under the fourth paragraph of Article 263 TFEU must be examined solely on the basis of the representation of the interests of the other member of ČASO and the individual standing of that member of the association to bring proceedings.
The applicants’ standing to bring proceedings under the second situation provided for in the fourth paragraph of Article 263 TFEU
50      An action for annulment is admissible under the second limb of the fourth paragraph of Article 263 TFEU only if the party seeking annulment, who is not the addressee of the contested decision, is directly and individually concerned by that decision. Since the conditions of direct and individual concern are cumulative, it is sufficient if one of them is not satisfied in order to conclude that an action is not admissible under that provision.
51      In the present case, the Court considers it appropriate to begin its analysis by examining the condition of individual concern.
52      In accordance with settled case-law, persons other than those to whom a decision is addressed may claim to be individually concerned only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and, by virtue of those factors, distinguishes them individually just as in the case of the person addressed (see judgment of 15 July 2021, Deutsche Lufthansa v Commission, C‑453/19 P, EU:C:2021:608, paragraph 33 and the case-law cited).
53      As regards a decision taken by the Commission in relation to State aid, it should be borne in mind that, in the context of the review procedure under Article 108 TFEU, two stages must be distinguished: first, the preliminary examination stage established by Article 108(3) TFEU, which enables the Commission to form a prima facie opinion on the conformity of the aid at issue or on the absence of aid, and, second, the formal investigation procedure provided for in Article 108(2) TFEU, which enables the Commission to be fully informed of the facts of the case. It is only in connection with the latter procedure that the FEU Treaty imposes an obligation on the Commission to give the parties concerned notice to submit their comments (see, to that effect, judgment of 19 May 2021, Ryanair v Commission (TAP; Covid‑19), T‑465/20, EU:T:2021:284, paragraph 21 and the case-law cited).
54      If the Commission finds, in the context of the preliminary examination procedure, that the notified measure raises doubts or serious difficulties as to its compatibility with the internal market, it is required to adopt, on the basis of Article 4(4) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU] (OJ 2015 L 248, p. 9), a decision to initiate the formal investigation procedure. It must be observed that, in accordance with case-law, the concepts of ‘doubts’ and ‘serious difficulties’ coincide (see judgment of 21 December 2022, Landwärme v Commission, T‑626/20, EU:T:2022:853, paragraph 21 and the case-law cited).
55      By adopting a decision finding, after a preliminary examination, that the measure at issue does not constitute aid, the Commission also implicitly refuses to initiate the second stage, namely the formal investigation procedure provided for in Article 108(2) TFEU and Article 6(1) of Regulation 2015/1589 (see, to that effect, order of 19 October 2022, Ighoga Region 10 and Others v Commission, T‑582/20, not published, EU:T:2022:648, paragraph 35). Where the formal investigation procedure is not initiated, interested parties, who could have submitted comments during that second stage, are deprived of that possibility. In order to remedy this, they are entitled to challenge the Commission’s decision not to initiate the formal investigation procedure before the EU judicature. Accordingly, an action for annulment of a decision based on Article 108(3) TFEU brought by a party concerned for the purposes of Article 108(2) TFEU is admissible where that party seeks to safeguard the procedural rights available to it under that latter provision (see judgment of 19 May 2021, Ryanair v Commission (TAP; Covid‑19), T‑465/20, EU:T:2021:284, paragraph 22 and the case-law cited). The party seeking annulment bears the burden of proving the existence of doubts or serious difficulties that should lead to a formal investigation procedure being initiated, and may discharge that burden of proof by reference to a body of consistent evidence, concerning, first, the circumstances and the length of the preliminary examination procedure and, second, the content of the contested decision (see, to that effect, judgment of 28 March 2012, Ryanair v Commission, T‑123/09, EU:T:2012:164, paragraph 77 and the case-law cited).
56      On the other hand, if a party seeking annulment calls into question the merits of the decision finding, at the end of the preliminary examination, that the measure in question does not constitute aid, the mere fact that that party may be regarded as concerned within the meaning of Article 108(2) TFEU cannot suffice to render the action admissible. It must then show that it enjoys a particular status within the meaning of the judgment of 15 July 1963, Plaumann v Commission (25/62, EU:C:1963:17, p. 107). That is the case, in particular, where the party seeking annulment adduces evidence to show that the measure at issue is liable to have a substantial adverse effect on its position on the market concerned (see judgment of 15 July 2021, Deutsche Lufthansa v Commission, C‑453/19 P, EU:C:2021:608, paragraph 59 and the case-law cited).
57      In the light of those principles, it must first be determined whether, by bringing their actions, the applicants sought to challenge the fact that the formal investigation procedure was not initiated by pleading an infringement of the procedural rights conferred by Article 108(2) TFEU, or whether they sought solely to challenge the merits of the contested decision.
–       The applicants’ plea, alleging an infringement of their procedural rights under Article 108(2) TFEU
58      In support of the admissibility of their actions, the applicants argue, at the application stage, that the Courts of the European Union have already acknowledged that complainants are directly and individually concerned by decisions by which the Commission concludes that a measure does not constitute State aid and consequently refrains from initiating the procedure provided for in Article 108 TFEU.
59      The applicants state that they lodged complaints in accordance with Article 24 of Regulation 2015/1589 and therefore enjoy all the rights which that regulation confers on interested parties, such as the right to be informed of the Commission’s final position on the objections raised.
60      According to the applicants, their status as complainants and their active participation in the investigation conducted by the Commission are sufficient to demonstrate that the contested decision is of direct and individual concern to them, in accordance with the case-law.
61      In addition, the applicants maintain that the status of ‘interested party’ is not reserved for companies that are substantially affected by the granting of aid.
62      In their replies and in their observations on the Czech Republic’s statements in intervention, the applicants state that, by their actions, they are primarily seeking to ensure the respect of their legitimate rights as interested parties within the meaning of Article 24 of Regulation 2015/1589, rights which, they submit, were first infringed by the extension of the DTT licences and subsequently by the contested decision. Moreover, the applicants argue that the contested decision is not adequately reasoned and, therefore, that their procedural rights have been infringed.
63      The Commission, supported by the Czech Republic, observes that the applicants do not allege an infringement of their procedural rights under Article 108(2) TFEU, but are challenging the contested decision on the merits.
64      It should be recalled that, in accordance with settled case-law, it is not for the Courts of the European Union to interpret an action challenging exclusively the merits of the aid assessment decision as seeking, in reality, to ensure the respect of the procedural rights available to the applicant under Article 108(2) TFEU, where the applicant has not expressly raised a plea to that effect, as to do so would change the subject matter of the action (see, to that effect, judgment of 14 September 2023, Land Rheinland-Pfalz v Deutsche Lufthansa, C‑466/21 P, EU:C:2023:666, paragraph 101 and the case-law cited).
65      However, an applicant’s arguments that seek specifically to show that the Commission should have initiated the formal investigation procedure are admissible where the action in support of which those arguments are invoked in effect seeks the annulment of the decision not to initiate that procedure and where, according to the actual wording of the application, the applicant submits that the fact that the formal investigation procedure was not initiated prevented it from benefiting from the procedural guarantees to which it is entitled (see, to that effect, judgment of 14 September 2023, Land Rheinland-Pfalz v Deutsche Lufthansa, C‑466/21 P, EU:C:2023:666, paragraph 102 and the case-law cited).
66      In the present case, it must be pointed out that, while the applicants rely, in support of their actions, on their status as complainants and, therefore, as interested parties within the meaning of Article 108(2) TFEU, they do not invoke a plea alleging infringement of their procedural rights under Article 108(2) TFEU as a result of the formal investigation procedure not being initiated.
67      In support of their actions, the applicants rely on a first plea, alleging a manifest error of assessment by the Commission in its analysis of Article 107(1) TFEU, and on a second plea, alleging a failure to comply with the obligation to state reasons for the contested decision.
68      Furthermore, it must be observed that none of the arguments put forward by the applicants in support of their actions specifically seeks to demonstrate that the Commission should have initiated the formal investigation procedure provided for in Article 108(2) TFEU, during which they could have submitted observations.
69      In the context of the first plea, the applicants submitted arguments seeking to demonstrate the existence of a manifest error of assessment in so far as the Commission considered that extending the DTT licences did not involve a transfer of State resources. By their second plea, the applicants argue that the contested decision does not contain an adequate statement of reasons. None of the applicants’ claims, at the application stage, seeks to establish, on the basis of a body of consistent evidence, the existence of doubts or serious difficulties which should have led to the initiation of the formal investigation procedure, within the meaning of the case-law cited in paragraph 54 above. Moreover, the applicants are wrong to equate the procedural rights deriving from Article 108(2) TFEU with the Commission’s obligation to state reasons under Article 296 TFEU.
70      In the light of the foregoing, it must be held that, by bringing their actions, the applicants did not seek to challenge the fact that the formal investigation procedure was not initiated by claiming an infringement of the procedural rights conferred on them by Article 108(2) TFEU, but, on the contrary, sought to challenge the merits of the contested decision, which essentially rejected their complaints.
71      In those circumstances, their individual concern is to be examined in the light of the criteria set out in the case-law cited in paragraph 56 above, which requires the party seeking annulment to adduce evidence to show that the measure at issue is liable to have a substantial adverse effect on that party’s position on the market.
–       Substantial adverse effect on market position
72      In order to be entitled to seek the annulment of the contested decision in respect of the pleas which they raise, the applicants must demonstrate that they have a particular status within the meaning of the case-law arising from the judgment of 15 July 1963, Plaumann v Commission (25/62, EU:C:1963:17, p. 107).
73      In accordance with that case-law, natural or legal persons satisfy the condition relating to individual concern only if the contested decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of those factors distinguishes them individually just as in the case of the person addressed (judgments of 15 July 1963, Plaumann v Commission, 25/62, EU:C:1963:17, p. 107; of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 72; and of 27 February 2014, Stichting Woonpunt and Others v Commission, C‑132/12 P, EU:C:2014:100, paragraph 57). In accordance with the case-law cited in paragraph 56 above, that requirement is met if the party seeking annulment adduces evidence to show that the measure at issue is liable to have a substantial adverse effect on its position on the market concerned.
74      The applicants submit that, even if the criteria set out by the judgment of 15 July 1963, Plaumann v Commission (25/62, EU:C:1963:17, p. 107), were applicable, they would satisfy the requisite conditions because Telly and the other member of ČASO are in direct competition with the DTT operators and the extension of the DTT licences substantially affects them.
75      In the first place, as regards direct competition, the applicants submit that Telly and the other member of ČASO provide services which are interchangeable with those offered by ČRa, CDG and DB on the television broadcasting market in the Czech Republic. DTT platform operators are in a factual and legal situation comparable to that of operators of other television service broadcasting platforms, such as satellite, cable and internet (IPTV). Consequently, according to the applicants, all those operators and providers carry on their economic activity on the same relevant market where technological neutrality is to be preserved, as the Commission has repeatedly confirmed in its decision-making practice.
76      In the second place, as regards whether they are substantially affected, the applicants argue, first, that the extension of the DTT licences constitutes an exception to the principle of technological neutrality capable of distorting competition between the operators of the various platforms. According to the applicants, the position of Telly and the other member of ČASO on the market has been disadvantaged and will further deteriorate in the future by the extension of the DTT licences, which has had a direct effect on their commercial or financial situation.
77      In that regard, the applicants explain that, in the Czech Republic, the public can generally choose between, on the one hand, a terrestrial free-to-air (‘FTA’) television service distributed by DTT and, on the other, pay TV operators, such as Telly and the other member of ČASO. Traditionally, the FTA television service has enjoyed a strong position on the overall market for Czech television services, with a share amounting to at least 50% of the total number of households, thus exerting significant competitive pressure on pay TV operators. According to the applicants, due to the very high penetration of FTA, the major TV content providers do not reserve special services such as TV archive or HD quality only to pay TV operators, but also enable FTA distributed by the DTT platform, which is free of charge and available throughout the Czech Republic, to benefit from them. In those circumstances, other pay TV operators, such as Telly and the other member of ČASO, lose their main competitive advantage on the TV broadcasting market.
78      The applicants argue that, by benefiting from an extension of the DTT licences, the DTT platform operators distributing FTA achieved considerable cost savings, giving them a significant competitive advantage. Therefore, according to the applicants, broadcasting on the DTT platform is artificially low-cost for TV broadcasters. Consequently, it motivates them to prefer free DTT broadcasting over pay TV distribution. That is illustrated by the decision taken by two major private TV broadcasters to introduce new programmes in their free broadcast, where DTT is the primary distribution technology. Consequently, DTT’s position as the primary platform for broadcasting is artificially strengthened, while elsewhere in the European Union that position is typically reserved for satellite.
79      In those circumstances, according to the applicants, the extension of the DTT licences adversely affected the performance of Telly and the other member of ČASO and caused their turnover [confidential], (1) which shows that it directly affected them.
80      Second, the applicants add that, before the extension of the DTT licences, Telly and the other member of ČASO were interested in participating in a call for tenders for the purpose of being allocated those licences. Moreover, the latter’s interest in participating was brought to the Commission’s attention during the investigation. The applicants state that, due to the lack of transparency in the extension of the DTT licences and its selective nature, this intention could not materialise.
81      Third, the applicants submit that the market for TV broadcasting in the Czech Republic would have evolved differently had the DTT licences not been extended and a call for tenders organised. A new player could have entered the market and developed a pay TV service on DTT. In such a situation, Telly and the other member of ČASO could have entered into negotiations regarding some form of cooperation in order to be able to provide a standard pay TV offer across all three technologies.
82      The Commission, supported by the Czech Republic, counters that the applicants have not provided any evidence of an adverse effect on the market position of Telly and of the other member of ČASO, indicating a decline in their commercial or financial performance, such as a significant decline in turnover, appreciable financial losses or a significant reduction in their market share following the extension of the DTT licences. Nor have the applicants demonstrated that extending the DTT licences caused those operators to lose the opportunity to make a profit or resulted in a less favourable development than would have been the case without such a measure.
83      The Czech Republic adds that the fact that the services provided by Telly and the other member of ČASO through satellite and internet technology (IPTV) may, in the broadest context of the provision of television services, compete to some extent with the services provided via DTT technology does not in any way mean that Telly and the other member of ČASO are individually concerned by the contested decision. The holders of the DTT licences are first and foremost network operators, whereas Telly and the other member of ČASO operate on the television services market.
84      It should be borne in mind that, in accordance with case-law, demonstration, by the applicant, of a substantial adverse effect on its position on the market does not require a definitive finding on the competitive relationship between the applicant and the beneficiary undertakings, but requires only that the applicant adduce pertinent reasons to show that the Commission’s decision may adversely affect its legitimate interests by substantially jeopardising its position on the market in question (see judgment of 15 July 2021, Deutsche Lufthansa v Commission, C‑453/19 P, EU:C:2021:608, paragraph 57 and the case-law cited).
85      It is thus apparent from case-law that the substantial adverse effect on the applicant’s competitive position on the market in question results not from a detailed analysis of the various competitive relationships on that market, allowing the extent of the adverse effect on its competitive position to be established specifically, but, in principle, from a prima facie finding that the grant of the measure covered by the Commission’s decision leads to a substantial adverse effect on that position (judgment of 15 July 2021, Deutsche Lufthansa v Commission, C‑453/19 P, EU:C:2021:608, paragraph 58).
86      It follows that that condition may be satisfied where the applicant adduces evidence to show that the measure at issue is liable to have a substantial adverse effect on its position on the market concerned (see judgment of 15 July 2021, Deutsche Lufthansa v Commission, C‑453/19 P, EU:C:2021:608, paragraph 59 and the case-law cited).
87      As regards the factors accepted by the case-law for the purpose of establishing a substantial adverse effect of that kind, in the first place, the mere fact that an act may exercise an influence on the competitive relationships existing on the relevant market and that the undertaking concerned is in a competitive relationship with the beneficiary of that act cannot suffice for that undertaking to be regarded as being individually concerned by that act. Therefore, an undertaking cannot rely solely on its status as a competitor of the undertaking in receipt of aid (see judgment of 15 July 2021, Deutsche Lufthansa v Commission, C‑453/19 P, EU:C:2021:608, paragraph 60 and the case-law cited).
88      Demonstrating a substantial adverse effect on a competitor’s position on the market cannot simply be a matter of the existence of certain factors indicating a decline in the applicant’s commercial or financial performance, such as a significant decline in turnover, appreciable financial losses or a significant reduction in market share following the grant of the aid in question. The grant of State aid can also have an adverse effect on the competitive situation of an operator in other ways, in particular by causing the loss of an opportunity to make a profit or a less favourable development than would have been the case without such aid (see judgment of 15 July 2021, Deutsche Lufthansa v Commission, C‑453/19 P, EU:C:2021:608, paragraph 61 and the case-law cited).
89      Furthermore, the case-law does not require the applicant to provide information as to the size or geographic scope of the markets in question, or as to its market shares or those of the beneficiary of the measure at issue or any competitors on those markets (see, to that effect, judgment of 15 July 2021, Deutsche Lufthansa v Commission, C‑453/19 P, EU:C:2021:608, paragraph 65).
90      It is in the light of those principles that it is necessary to examine whether the evidence put forward by the applicants shows that the extension of the DTT licences was such as to have a substantial adverse effect on the competitive position of Telly and the other member of ČASO.
91      In the present case, the applicants explain, first of all, that DTT and the satellite technology which they use are in competition on the TV broadcasting market in the Czech Republic and describe, in general terms, certain characteristics and dynamics of that market, namely the high penetration of FTA television services distributed by DTT as compared with other broadcasting methods, such as satellite and the internet (IPTV) and, in those circumstances, the tendency of the major audiovisual content providers to distribute their FTA content through DTT, instead of reserving certain special services to pay TV broadcast on other platforms.
92      As regards the extension of the DTT licences, the applicants argue, in essence, that the fact that they are free of charge is not consistent with the principle of technological neutrality since it has conferred a significant competitive advantage on DTT network operators and TV services providers using that network. The broadcasting of content through DTT is artificially low-cost, which accentuates the trend referred to in paragraph 91 above. According to the applicants, that extension adversely affected the performance of Telly and the other member of ČASO and caused their turnover [confidential]. Moreover, with no call for tenders for the allocation of the DTT licences, Telly and the other member of ČASO were denied the opportunity to participate in it or to negotiate with a new entrant, which would have changed the market dynamics.
93      It must be held that those arguments are insufficient to demonstrate that the extension of the DTT licences was such as to have a substantial adverse effect on the competitive position of Telly and the other member of ČASO on the market on which they claim to operate, namely the market for the provision of TV services in the Czech Republic, without it being necessary to determine whether all of the technologies for broadcasting those services and all offers are substitutable.
94      The applicants have not provided any information in their pleadings regarding the quantification of the alleged advantages in favour of the DTT licence holders, which are network operators with the exception of ČT, or regarding the actual impact of those advantages on the price charged by those holders to audiovisual content providers which choose to broadcast through DTT.
95      As regards the argument that two private broadcasters chose to introduce new programmes in their free broadcast for which DTT is the primary distribution technology, the applicants fail to establish any causal link with the alleged advantage that is the subject of the contested decision.
96      As regards the applicants’ arguments based on the impact on the turnover of Telly and the other member of ČASO of extending the DTT licences, those are mere assertions not supported by any evidence. Moreover, the applicants have not adduced any evidence to establish a causal link.
97      As regards the alleged breach of the principle of technological neutrality, that claim alone does not provide any concrete evidence on the effects of the extension of the DTT licences on the position of Telly and the other ČASO member on the market for the provision of TV services in the Czech Republic.
98      Lastly, as regards the competitive disadvantages alleged by the applicants on account of the lack of a call for tenders for the allocation of the extended DTT licences, it must be pointed out that the Commission did not examine that lack of a call for tenders in the contested decision.
99      In that decision, the Commission merely found that extending the DTT licences free of charge did not involve State resources within the meaning of Article 107(1) TFEU, with the result that it could not be classified as State aid.
100    The applicants have not argued, let alone established, that, if the contested decision were to be annulled, the regulatory authority would necessarily have to organise a call for tenders for the allocation of the DTT licences, rather than extend the DTT licences in return for a fee.
101    Moreover, it should be pointed out, as the Commission has stated, that Telly, which is not a network operator, has not adduced any evidence of its desire to participate in a call for tenders, nor has it demonstrated any genuine interest in obtaining a DTT licence.
102    It follows from the foregoing that the applicants have failed to demonstrate that the contested decision is such as to harm their legitimate interests by having a substantial adverse effect on the position of Telly and the other member of ČASO on the market for the provision of TV services in the Czech Republic.
103    The condition relating to individual concern laid down by the fourth paragraph of Article 263 TFEU is therefore not satisfied.
–       Conclusion on the second situation referred to by the fourth paragraph of Article 263 TFEU
104    Since the criterion of individual concern has not been satisfied, it must be concluded, without there being any need to examine the criterion of direct concern, that the present actions are not admissible under the second situation provided for by the fourth paragraph of Article 263 TFEU.
The applicants’ standing to bring proceedings under the third situation provided for in the fourth paragraph of Article 263 TFEU
105    Under the third limb of the fourth paragraph of Article 263 TFEU, any natural or legal person may institute proceedings against regulatory acts which are of direct concern to them and do not entail implementing measures.
106    The applicants have not invoked that provision to support the admissibility of their actions, but have merely argued that they were directly and individually concerned by the contested decision, within the meaning of the second limb of the fourth paragraph of Article 263 TFEU.
107    During the hearing, the applicants submitted that the admissibility of the actions should not be examined in the light of the third limb of the fourth paragraph of Article 263 TFEU or in the light of the nature of the national measures at issue. According to the applicants, if the nature of the national measures were nevertheless to be examined in the light of the third limb of the fourth paragraph of Article 263 TFEU, the contested decision would concern a series of individual instances of State aid granted to DTT network operators, which would therefore likely amount to an aid scheme.
108    In response to written questions put by the Court, the Commission and the Czech Republic contended that the actions are not admissible under the third limb of the fourth paragraph of Article 263 TFEU.
109    It should be recalled that the criterion which makes the admissibility of an action brought by a natural or legal person against a decision addressed to another person subject to the conditions governing admissibility laid down in the fourth paragraph of Article 263 TFEU raises an absolute bar to proceeding, which the Courts of the European Union may examine at any time, even of their own motion (see judgment of 27 February 2014, Stichting Woonpunt and Others v Commission, C‑132/12 P, EU:C:2014:100, paragraph 45 and the case-law cited).
110    In those circumstances, the Court will examine whether the actions are admissible under the third limb of the fourth paragraph of Article 263 TFEU.
111    The Court considers it appropriate to begin by analysing whether the contested decision constitutes a ‘regulatory act’ within the meaning of the third limb of the fourth paragraph of Article 263 TFEU.
112    It should be recalled that the concept of ‘regulatory act’, within the meaning of the third limb of the fourth paragraph of Article 263 TFEU extends to all non-legislative acts of general application (judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 28).
113    In accordance with settled case-law, an act is of general application if it applies to objectively determined situations and produces legal effects with respect to categories of persons envisaged in a general and abstract manner (see judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 29 and the case-law cited).
114    Point (d) of Article 1 of Regulation 2015/1589 defines the concept of an ‘aid scheme’ as covering, in the context of a first situation defined in the first sentence, ‘any act on the basis of which, without further implementing measures being required, individual aid awards may be made to undertakings defined within the act in a general and abstract manner’.
115    The Court of Justice has repeatedly held in the field of State aid that Commission decisions authorising or prohibiting a national scheme are of general application. That general application derives from the fact that such decisions apply to objectively determined situations and produce legal effects with respect to a category of persons envisaged in a general and abstract manner (see judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 31 and the case-law cited).
116    In the light of that case-law, it is necessary to examine whether the contested decision concerns an aid scheme for the purposes of the first situation referred to by the first limb of Article 1(d) of Regulation 2015/1589.
117    For a State measure to be classified as an aid scheme within the meaning of the first limb of Article 1(d) of Regulation 2015/1589, three cumulative conditions must be satisfied. First, aid may be granted individually to undertakings on the basis of an act. Second, no further implementing measure is to be required for that aid to be granted. Third, undertakings to which individual aid may be granted must be defined ‘in a general and abstract manner’ (see, to that effect, judgment of 16 September 2021, Commission v Belgium and Magnetrol International, C‑337/19 P, EU:C:2021:741, paragraphs 58 to 60).
118    As the Court of Justice has acknowledged, the question whether ‘further implementing measures’ are necessary for the grant of individual aid under an aid scheme is intrinsically linked to the issue of determining the ‘act’, within the meaning of Article 1(d) of Regulation 2015/1589, on which that scheme is based. It is in the light of that act that it must be determined whether the grant of individual aid is conditional on the adoption of such measures or whether, on the contrary, the grant of individual aid may be made on the basis of that act (see, to that effect, judgment of 16 September 2021, Commission v Belgium and Magnetrol International, C‑337/19 P, EU:C:2021:741, paragraph 106).
119    The General Court will first examine whether the second condition laid down by Article 1(d) of Regulation 2015/1589, namely that no ‘further implementing measures’ are necessary for the grant of individual aid under the act in question, is satisfied in the present case.
120    In that regard, it should be recalled that the criterion relating to the need for ‘further implementing measures’ implies that the individual grant of aid can only be achieved by other ‘further’ measures, which supplement the provisions establishing the aid at issue, by completing or clarifying them (judgment of 19 May 2021, Ryanair v Commission (Spain; COVID‑19), T‑628/20, EU:T:2021:285, paragraph 86).
121    Similarly, the existence of further implementing measures entails a degree of discretion on the part of the authority adopting the measures in question, allowing it to influence the amount of the aid, its characteristics or the conditions under which that aid is granted. By contrast, the mere technical application of the act providing for the grant of the aid in question does not constitute a ‘further implementing measure’ within the meaning of Article 1(d) of Regulation 2015/1589 (see, to that effect, judgment of 16 September 2021, Commission v Belgium and Magnetrol International, C‑337/19 P, EU:C:2021:741, paragraph 105).
122    In the present case, the Commission considered, in the contested decision, that Article II(5) of Amendment No 252/2017 constituted the legal basis for extending the DTT licences. As explained in paragraph 11 of the contested decision, that provision enabled the DTT licence holders to modify the rights conferred by those licences as regards, first, the technical aspects of broadcasting in the DVB-T2 standard and, second, the extension of the validity of the licences until 31 December 2030.
123    Article II(5) of Amendment No 252/2017 is worded as follows:
‘To ensure transition to the DVB-T2 standard, holders of allocation of radio frequencies for the transmission of nationwide [DTT] broadcasting may apply for a change in the allocation of radio frequencies for the transmission of nationwide [DTT] broadcasting. Upon their request, the [regulatory authority] shall make a change to the existing allocations of radio frequencies in the DVB-T standard, allowing to operate designated nationwide networks in the DVB-T2 standard, in accordance with the [technical transition plan], including setting dates for the commencement of use of radio frequencies designated for final broadcasting in the DVB-T2 standard in the same broadcasting stations and with such technical parameters that will ensure, to the greatest extent possible, the same scope of coverage and the least possible negative effects on audience, including extending the time of validity of thus changed allocations of radio frequencies by 31 December 2030. In such cases, the [regulatory authority] is to proceed by analogy to cases pursuant to [Paragraph] 22a of [Law No 127/2005], as in effect on the date of this Act’s coming into effect. Holders of allocations of radio frequencies shall apply for a change in allocation of radio frequencies under the first sentence within [six] months [of] the [technical transition plan’s] coming into effect.’
124    As the Commission and the Czech Republic observed during the hearing, it is apparent, in essence, from Article II(5) of Amendment No 252/2017, first, that the extension of the DTT licences until 31 December 2030 was necessarily linked to the upgrading of the DTT networks of the licence holders from the DVB-T standard to the DVB-T2 standard, and to the amendment of the DTT licences to that effect. That upgrade was to be carried out in accordance with the technical transition plan referred to in paragraph 13 above, ensuring, to the greatest extent possible, the same scope of coverage and the least possible impact on viewers.
125    Second, in accordance with Article II(5) of Amendment No 252/2017, the DTT licence holders could apply to the regulatory authority for a change in their licences on the basis of Paragraph 22a of Law No 127/2005, applicable by analogy. The request was to be submitted no later than six months from the coming into effect of the technical transition plan referred to in paragraph 13 above.
126    Paragraph 22a(1) of Law No 127/2005 provides that amendments may be made to the allocation of radio frequencies by the chair of the council of the regulatory authority at the request of the holders of the allocations concerned, following prior public consultation, organised in accordance with Paragraph 130 of Law No 127/2005.
127    As is apparent, in essence, from Paragraph 22a(3) of Law No 127/2005, in the context of his examination of the proposed amendments following a request made on the basis of paragraph 1 of that provision, the chair of the council of the regulatory authority is to ensure compliance with the conditions and obligations imposed when the radio frequencies at issue were first allocated. In particular, the chair of the council of the regulatory authority is to take into consideration the commitments made by the licensee, the type of service for which the rights had been allocated, the need to ensure effective competition, and compliance with the condition relating to the purposeful use of the frequency. Lastly, it is stated that the change in allocation will occur only if it is essential to ensure the harmonisation objectives established by the European Union and within the framework of international treaties to which the Czech Republic has acceded.
128    On reading the applicable provisions of national law, it must be found that the extension of the DTT licences could be granted by the chair of the council of the regulatory authority only on a case-by-case basis in the context of individual decisions, in accordance with the criteria laid down in Paragraph 22a of Law No 127/2005 and Article II(5) of Amendment No 252/2017, which involved the exercise of discretion going beyond the mere technical application of the provisions concerned.
129    In particular, the regulatory authority was required to organise a public consultation on the requests to amend the DTT licences submitted by the holders of those licences and the chair of the council of that authority was required to examine those requests while ensuring, inter alia, the existence of effective competition and compliance with the conditions relating to, first, the purposeful use of the frequencies allocated in the context of the transition from the DVB-T standard to the DVB-T2 standard and, second, the limitation of the impact of such transition on viewers. Without that transition, the DTT licences could not be extended.
130    On the basis of that assessment, the chair of the council of the regulatory authority adopted the individual decisions amending the DTT licences, referred to in paragraph 13 of the contested decision.
131    It follows that extending the DTT licences was conditional on the adoption of ‘further implementing measures’, within the meaning of Article 1(d) of Regulation 2015/1589.
132    Therefore, it must be held that the national provision identified in the contested decision as forming the legal basis for extending the DTT licences does not establish an aid scheme within the meaning of Article 1(d) of Regulation 2015/1589, without the need to determine whether that provision satisfies the third condition referred to in paragraph 117 above, relating to the definition of the recipients in ‘a general and abstract manner’.
133    In the light of the foregoing, it must be held that the contested decision does not constitute an act of general application and, therefore, does not come within the category of ‘regulatory acts’, within the meaning of the third limb of the fourth paragraph of Article 263 TFEU.
134    It must therefore be concluded that the actions are not admissible under the third limb of the fourth paragraph of Article 263 TFEU, without it being necessary to examine the criteria relating to direct concern and the existence of implementing measures.
135    It follows from all of the foregoing that the actions must be dismissed in their entirety as inadmissible.
Costs
136    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicants have been unsuccessful, they must be ordered to bear their own costs and to pay those incurred by the Commission in accordance with the form of order sought by the Commission.
137    The Czech Republic is to bear its own costs, in accordance with Article 138(1) of the Rules of Procedure.
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby:
1.      Dismisses the actions as inadmissible;
2.      Orders Telly s. r. o. to bear its own costs and to pay those incurred by the European Commission in Case T‑362/21;
3.      Orders Česká asociace satelitních operátorů z. s. to bear its own costs and to pay those incurred by the Commission in Case T‑363/21;
4.      Orders the Czech Republic to bear its own costs.
Truchot
Sampol Pucurull
Perišin
Delivered in open court in Luxembourg on 14 May 2025.
V. Di Bucci
M. van der Woude
Registrar
President
*      Language of the case: English.
1 Confidential information redacted.