Case T‑125/12
Viasat Broadcasting UK Ltd
v
European Commission
(State aid — Public-service broadcasting — Decision declaring aid compatible with the internal market — Aid implemented by the Danish authorities in favour of the Danish public-service broadcaster TV2/Danmark — Public funding granted to offset the costs involved in the performance of public-service obligations — Compatibility of aid — Judgment in Altmark)
Summary — Judgment of the General Court (Eighth Chamber), 24 September 2015
1.      Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Commission decision terminating an aid proceeding — Competitor of the undertaking receiving the aid — Right to bring an action — Conditions
(Arts 108(2) and (3) TFEU and 263, fourth para., TFEU)
2.      State aid — Concept — Measures designed to compensate for the cost of public service missions undertaken by an undertaking — Not included — Conditions set out in the Altmark judgment
(Art. 107(1) TFEU)
3.      Competition — Undertakings entrusted with the operation of services of general economic interest — Compensation for the costs generated by the public service mission — Assessment of the compatibility of aid with the internal market — Criteria
(Art. 106(2) TFEU)
4.      State aid — Concept — Measures designed to compensate for the cost of public service missions undertaken by an undertaking — Distinction between the Altmark test, designed to determine the existence of aid, and the test of Article 106(2) TFEU, enabling it to be established whether aid is compatible with the internal market
(Arts 106(2) TFEU and 107(1) TFEU)
5.      Competition — Undertakings entrusted with the operation of services of general economic interest — Compensation for the costs generated by the public service mission — Assessment of the compatibility of aid with the internal market — Criteria — Conditions set out in the Altmark judgment for examining the proportionality of the aid irrelevant
(Art. 106(2) TFEU)
6.      State aid — Prohibition — Exceptions — Discretion of the Commission — Possibility of adopting guidelines — Binding effect — Judicial review
(Art. 106(2) TFEU; Commission Notice 2001/C 320/05)
7.      Competition — Undertakings entrusted with the operation of services of general economic interest — Recourse to a tendering procedure not necessary to assign such a task to an undertaking
(Art. 106(2) TFEU)
8.      Acts of the institutions — Statement of reasons — Obligation — Scope — Commission decision on the compatibility of aid with the internal market
(Arts 106(2) TFEU and 296 TFEU)
9.      Judicial proceedings — Introduction of new pleas during the proceedings — Conditions — Amplification of an existing plea — Limits
(Rules of Procedure of the General Court, Art. 48(2))
1.      See the text of the decision.
(see paras 34-36)
2.      See the text of the decision.
(see paras 55-59, 80-83)
3.      In order for State aid within the meaning of Article 107 TFEU to be declared compatible with the internal market pursuant to Article 106(2) TFEU, the following conditions must be satisfied. The first condition, relating to the definition of public service, requires that the service at issue actually be a service of general economic interest and be clearly defined as such by the Member State. The second condition, relating to the public-service mandate, requires that the recipient undertaking be explicitly entrusted by the Member State with the provision of the public service in question. Finally, the third condition is based on the concept of proportionality. Under that condition, the financing of an undertaking entrusted with public-service obligations must be considered to be compatible with the internal market in so far as the application of the competition rules of the FEU Treaty — such as the prohibition of State aid — would obstruct the performance of the particular tasks assigned to that undertaking, and the exemption from the competition rules should not affect the development of trade to an extent that would be contrary to the interests of the European Union.
(see para. 61)
4.      See the text of the decision.
(see paras 63, 77)
5.      In State aid matters, concerning the application of Article 106(2) TFEU, it is true that the third Altmark condition, according to which the compensation must not exceed what is necessary to cover all or part of the costs incurred in discharging the public-service obligations, taking into account the relevant revenue and a reasonable profit for discharging those obligations, broadly coincides with the criterion of proportionality in the context of the application of that provision.
However, whilst, in both cases, it is essentially the same criterion which is being applied, the context and the purpose of its application are, in each case, different. In the case of the application of Article 106(2) TFEU, it is no longer a question of determining whether a service of general economic interest is provided under normal market conditions, but of preventing, through the assessment of the proportionality of the aid, the operator responsible for the service of general economic interest benefiting from funding which exceeds the net costs of the public service. It follows that the question as to whether an undertaking responsible for a broadcasting service of general economic interest may fulfil its public-service obligations at a lower cost is irrelevant for the purpose of assessing the compatibility of the State funding of that service in the light of the EU State aid rules.
In other words, the costs of a service of general economic interest to be taken into account when applying Article 106(2) TFEU are the actual costs of the service such that they are, and not as they could have been or ought to be, on the basis of objective and transparent calculation criteria, founded on the example of a typical undertaking which is well run and adequately equipped. In that context, the criterion of proportionality is taken into account to estimate the actual costs of the service of general economic interest if, in the absence of evidence available to the Commission which would allow a precise calculation of those costs, the Commission is obliged to make an estimate. More generally, it is by applying the principle of proportionality that it is appropriate to conclude that aid intended to cover the costs of a service of general economic interest is not compatible with the internal market in so far its level exceeds the actual costs of that service. That is why any failure to comply with the second Altmark condition, according to which the parameters on the basis of which the compensation is calculated must be established in advance in an objective and transparent manner, and with the fourth Altmark condition, according to which, where the undertaking which is to discharge public-service obligations, in a specific case, is not chosen pursuant to a public procurement procedure which would allow for the selection of the tenderer capable of providing those services at the least cost to the community, the level of compensation needed must be determined on the basis of an analysis of the costs which a typical undertaking, well run and adequately equipped so as to be able to meet the necessary public-service requirements, would have incurred in discharging those obligations, taking into account the relevant receipts and a reasonable profit, although relevant to the examination of the question as to whether such a service is provided under normal market conditions, is not relevant to the assessment of the proportionality of the aid in the context of the application of Article 106(2) TFEU.
(see paras 84-90)
6.      See the text of the decision.
(see paras 95-98)
7.      See the text of the decision.
(see para. 99)
8.      In State aid matters, the fact that a decision does not mention the role of the second and fourth Altmark conditions in the assessment of the compatibility of the measures concerned with the internal market is not attributable to an error of reasoning on the part of the Commission or to a failure to state reasons vitiating the contested decision, but rather to the fact that that decision applies a different analytical framework from that which favours the applicant.
Moreover, the duty to state reasons cannot be regarded as having been breached where, in the said decision, the Commission set out detailed reasoning to justify the compatibility of the measures concerned with the internal market in the light of its Communication on the application of State aid rules to public-service broadcasting and the applicant does not raise any head of complaint with regard to that reasoning.
(see paras 103, 104)
9.      See the text of the decision.
(see paras 113-116)