62021TJ0489_RES
Case T‑489/21
Kingdom of Spain
v
European Commission
Judgment of the General Court (Seventh Chamber, Extended Composition) of 2 July 2025
(State aid – Digital television – Aid for the deployment of DTT in remote and less urbanised areas (outside Castilla-La Mancha) – Decision declaring the aid unlawful and incompatible with the internal market – Decision to open the formal investigation procedure – Article 6(1) of Regulation (EU) 2015/1589 – Concept of ‘aid scheme’ – Selectivity – Burden of proof – Technological neutrality – Advantage – Unjust enrichment)
Actions for annulment – Judgment annulling a measure – Scope – Commission decision finding aid incompatible with the internal market and ordering its recovery – Annulment for failure to state adequate reasons – Resumption of the investigation of the case by the Commission – Obligation to adopt a new decision to open the formal investigation procedure – None
(Arts 108(2) and 266 TFEU)
(see paragraphs 28-34)
Action for annulment – Grounds – Pleas that may be raised against a Commission decision on State aid – Pleas raised by interested parties against a decision declaring aid unlawful and incompatible and ordering its recovery – Pleas relating to the decision to open the formal investigation procedure – Admissibility
(Arts 108(2) and 263 TFEU)
(see paragraph 40)
State aid – Examination by the Commission – Decision to open the formal investigation procedure provided for in Article 108(2) TFEU – Obligation to state reasons – Scope – Decision to give the parties concerned the opportunity to participate effectively in the formal investigation procedure – Summary of the relevant issues of fact and law – Joint examination of the conditions of selectivity and economic advantage – Whether permissible
(Art. 108(2) TFEU; Council Regulation No 659/1999, Arts 1(h) and 6(1))
(see paragraphs 45-53, 62-64, 74)
State aid – Examination by the Commission – Administrative procedure – Obligation of the Commission to give notice to the parties concerned to submit their comments – Obligation of the Commission to communicate to the Member State concerned the comments of other interested parties on the decision to open the formal investigation procedure – Scope
(Art. 108 TFEU; Council Regulation 2015/1589, Art. 6)
(see paragraphs 90-93)
Actions for annulment – Judgment annulling a measure – Effects – Annulment of a Commission decision finding an infringement of the State aid rules – Retroactive effect of annulment – Adoption of a new decision finding the existence of aid that is unlawful and incompatible with the internal market and ordering its recovery – Whether permissible – Conditions – Decision adopted in compliance with both the statement of reasons and the operative part of the judgment annulling the measure
(Art. 266 TFEU)
(see paragraphs 99-106)
EU law – Principles – Protection of legitimate expectations – Conditions – Specific assurances given by the authorities – None
(see paragraphs 107, 108)
State aid – Administrative procedure – Obligations of the Commission – Principle of sound administration – Duty to act within a reasonable time – Breach – None
(Charter of Fundamental Rights of the European Union, Art. 41(1))
(see paragraphs 112-114)
State aid – Examination by the Commission – Aid scheme – Concept – Criteria for assessment – Scheme based on a common provision – Absence of further implementing measures necessary for the granting of individual aid – General and abstract definition of beneficiaries – Conditions met
(Council Regulation No 659/1999, Art. 1(d))
(see paragraphs 119-129, 157-159, 178-181)
State aid – Concept – Selective nature of the measure – Public funding to support the process of digitisation of broadcasting in certain areas – Assessment criteria – Determination of the reference framework
(Art. 107(1) TFEU)
(see paragraphs 186-189, 194-203)
State aid – Concept – Selective nature of the measure – Differentiation between undertakings in a comparable factual and legal situation in the light of the objective of the reference system – Assessment based on the situation existing at the time the measure at issue is adopted – Burden of proof
(Art. 107(1) TFEU)
(see paragraphs 207, 227-233, 236-239)
State aid – Recovery of unlawful aid – Calculation of the amount of aid to be recovered and determination of the addressees of the orders for recovery – Necessary and sufficient information provided by the Commission
(Art. 108 TFEU)
(see paragraphs 274-287)
State aid – Recovery of unlawful aid – Restoration of the prior situation – Breach of the principles of proportionality and equal treatment – None
(Art. 108 TFEU)
(see paragraphs 307-311)
State aid – Concept – Grant of an advantage to the beneficiaries – Objectives pursued by the State – No effect
(Art. 107 TFEU)
(see paragraphs 315, 316)
State aid – Concept – Grant of an advantage to the beneficiaries – Public funding to support the process of digitisation of broadcasting in certain areas – Selection of beneficiaries following technologically non-neutral tenders – Calls for tender not precluding the existence of an advantage
(Art. 107(1) TFEU; Commission Communication 2016/C 262/01, paragraphs 89, 93, 95 and 96)
(see paragraphs 322-328)
Résumé
The General Court, sitting in extended composition, dismisses the action for annulment brought by the Kingdom of Spain against the European Commission’s Decision of 10 June 2021 on the State aid implemented by that Member State for the deployment of digital terrestrial television in remote and less urbanised areas. (
1
) In that context, the Court is called upon, in particular, to examine compliance with Spain’s rights of defence during the administrative procedure which led to the adoption of the contested decision, in light of the fact that the latter replaced an earlier decision which had been annulled by the Court of Justice.
Endeavouring to promote the transition from analogue to digital broadcasting on its territory, Spain adopted a Royal Decree (
2
) in 2005 requiring national private and public broadcasters to ensure, respectively, that 95% and 98% of the population would receive digital terrestrial television (DTT).
In order to achieve those coverage objectives, the Spanish authorities granted public funding to support the digitisation process in certain remote and less urbanised areas of the Spanish territory and, more particularly, within the regions of the Autonomous Communities in those areas.
Having received a complaint in that regard, the Commission initiated a formal investigation procedure, within the meaning of Article 108(2) TFEU, for the whole territory of Spain, with the exception of the Comunidad Autónoma de Castilla-La Mancha (Autonomous Community of Castilla-La Mancha). At the end of that procedure, the Commission found that State aid had been granted to the operators of the terrestrial television platform for the deployment, maintenance and operation of the DTT network in the remote and less urbanised areas in question. In classifying that aid as unlawful and incompatible with the internal market, except for the aid which was granted in compliance with the principle of technological neutrality, the Commission ordered its recovery by Decision 2014/489. (
3
)
The actions for annulment brought against that decision were dismissed by six judgments of the General Court. (
4
) These were subsequently the subject of appeals, which were likewise not upheld by the Court of Justice, (
5
) with the exception of the appeal against the judgment of the General Court in Comunidad Autónoma de Galicia and Retegal v Commission. (
6
) Ruling on that appeal, the Court of Justice both set aside the judgment under appeal and annulled Commission Decision 2014/489 on the ground of a failure to state adequate reasons concerning the selectivity of the measure at issue. (
7
)
Following that judgment, the Commission adopted a new decision, in which it, inter alia, found that the measures taken by the Spanish authorities to ensure the deployment of digital terrestrial television in remote and less urbanised areas of Spanish territory, with the exception of the Autonomous Community of Castilla-La Mancha (‘the measure at issue’), constitute an aid scheme funded directly from the Spanish budget or from the budgets of particular Autonomous Communities and local corporations, which confers a selective advantage on the undertakings operating the terrestrial network. Considering, moreover, that that measure was incompatible with the internal market and that the prior notification procedure laid down in Article 108(3) TFEU had not been complied with, the Commission ordered the recovery of the aid granted.
Spain brought an action before the General Court for the annulment of that decision, which is dismissed in its entirety.
Findings of the Court
In support of its action, Spain complained that the Commission had infringed its rights of defence during the administrative procedure which led to the adoption of the contested decision.
First of all, Spain argued that, following the annulment of Decision 2014/489, the Commission should have adopted a new decision to initiate the formal investigation procedure.
In that regard, the General Court recalls that, in the event of the annulment of an act closing an administrative procedure containing various phases, the procedure for replacing that act may be resumed at the very point at which the illegality occurred. Since the Court of Justice annulled Decision 2014/489 on the ground of a failure to state adequate reasons, the illegality vitiating that decision occurred at the time of its adoption and does not concern the procedure preceding it, on which the Court of Justice did not rule. It follows that implementation of the judgment annulling the measure did not require the Commission to go through the whole procedure provided for in Article 108 TFEU.
The General Court next rejects Spain’s criticisms concerning the analysis of selectivity contained in the decision to initiate the formal investigation procedure. After noting that that complaint must be assessed in the light of the provisions of Regulation No 659/1999, (
8
) the Court points out that, in accordance with Article 6 of that regulation, the decision to initiate the procedure contains a preliminary assessment of both the classification of the measure as State aid and its compatibility with the internal market. Moreover, although the concepts of ‘advantage’ and ‘selectivity’ are two separate criteria, they may be examined together as a ‘third condition’ laid down by Article 107(1) TFEU, requiring there to be a ‘selective advantage’.
In the light of those clarifications, the Court finds that, in view of the nature and content of the decision to initiate the formal investigation procedure, as well as the context in which it was adopted, Spain was in a position to understand the reasons why the Commission considered, as a preliminary matter, that the measure at issue appeared to confer a selective advantage in particular on terrestrial network operators as compared with network operators using other technologies and, specifically, satellite technologies, which were in competition with the former for the purpose of broadcasting the digital television signal covered by the legal regime governing the switch-over to digital television in Spain. Moreover, it is quite clear that the statement of reasons relating to the selective nature of the measure at issue, contained in the decision to initiate the procedure, enabled Spain to put forward its views on that issue, in particular as regards the comparability of the situations of terrestrial and satellite technologies.
For the rest, the Court rejects Spain’s complaints alleging infringement of its rights of defence, in that the analysis of selectivity contained in the contested decision is new and based on new facts which had not been communicated to it. On that point, the Court points out that, as regards the selectivity of the measure at issue, the decision to initiate the procedure and the subsidiary line of reasoning set out in the contested decision are based, in essence, on the same premiss and that the decision to initiate the procedure contained an adequate statement of reasons in that regard. What is more, the allegedly new elements referred to by Spain were not unknown to it and, in any event, cannot be regarded as an essential basis for the Commission’s finding as to the selectivity of the measure at issue.
Finally, the Court finds that, contrary to Spain’s submissions, the Commission was not required, under Article 6(2) of Regulation 2015/1589, (
9
) to communicate to Spain the comments received from other interested parties in response to requests for information sent after the annulment of Decision 2014/489, since that provision requires the Commission to communicate only the comments submitted by the interested parties on the decision to initiate the formal investigation procedure.
Having thus rejected all the complaints alleging infringement of Spain’s rights of defence, the Court also rejects the complaints alleging, in essence, infringement of Article 107(1) TFEU on the basis of an erroneous analysis of the selectivity condition. In that regard, Spain criticised the Commission, in particular, for failing to carry out a specific and exhaustive examination of the comparability of the situations in question and for concluding that terrestrial and satellite technologies are comparable solely on the basis of their potential competitive relationship.
On that last point, the Court recalls that a measure is selective if it introduces a distinction between undertakings which are in a comparable factual and legal situation in the light of the objective of the reference system.
In so far as the objective of the reference system is, in the present case, the transmission of digital broadcasts, the Commission was right to find, in the contested decision, that both terrestrial platform operators and satellite platform operators were capable of transmitting digital broadcasts. Contrary to Spain’s assertions, those circumstances support the recognition of an actual, and not potential, competitive relationship between terrestrial and satellite platforms.
Moreover, the Commission had not concluded that the situations in question were comparable solely because of the actual or potential competitive relationship between terrestrial and satellite platforms. It is apparent from the contested decision that it had taken account of a set of circumstances which makes the two technologies in question similar in the light of the objective of transmission of the digital broadcasting signal.
Contrary to Spain’s assertions, nor had the Commission failed to take into account a number of factual and legal circumstances which distinguish between terrestrial and satellite platforms.
In that regard, the Court rejects in particular the argument that the Commission, by failing to base its analysis on a study of the cost differences between terrestrial and satellite technologies, had reversed the burden of proof of selectivity which it bears.
While it is for the Commission to prove the existence of State aid within the meaning of Article 107(1) TFEU and thus also to prove that the condition of granting an advantage to the beneficiaries is fulfilled, it is not for the Commission, on its own initiative and in the absence of any evidence to that effect, to seek all information which might be connected with the case before it, even where such information is in the public domain.
It follows that, in the present case, it was for Spain to provide the Commission with all information and evidence enabling it to verify the validity of its argument based on the difference in costs between terrestrial and satellite technologies, where appropriate after the Commission had invited it, in the context of the formal investigation procedure, to provide all relevant information for that purpose.
Since the other pleas put forward by Spain have also been rejected, the Court dismisses its action for annulment in its entirety.
(
1
)	Commission Decision (EU) 2021/2034 of 10 June 2021 on the State aid SA.28599 (C 23/2010) (ex NN 36/2010, ex CP 163/2009)) implemented by Spain for the deployment of digital terrestrial television in remote and less urbanised areas (outside Castilla-La Mancha) (OJ 2021 L 417, p. 1).
(
2
)	Real Decreto 944/2005 por el que se aprueba el Plan técnico nacional de la televisión digital terrestre (Royal Decree 944/2005 approving the National Technical Plan for digital terrestrial television) of 29 July 2005 (BOE No 181, of 30 July 2005, p. 27006).
(
3
)	Commission Decision 2014/489/EU of 19 June 2013 on State aid SA.28599 (C 23/10 (ex NN 36/10, ex CP 163/09)) implemented by the Kingdom of Spain for the deployment of digital terrestrial television in remote and less urbanised areas (outside Castilla-La Mancha) (OJ 2014 L 217, p. 52).
(
4
)	Judgments of 26 November 2015, Spain v Commission (T‑461/13, EU:T:2015:891); Abertis Telecom and Retevisión I v Commission (T‑541/13, not published, EU:T:2015:898); Navarra de Servicios y Tecnologías v Commission (T‑487/13, not published, EU:T:2015:899); Comunidad Autónoma de Cataluña and CTTI v Commission (T‑465/13, not published, EU:T:2015:900); Comunidad Autónoma de Galicia and Retegal v Commission (T‑463/13 and T‑464/13, not published, EU:T:2015:901), and Comunidad Autónoma del País Vasco and Itelazpi v Commission (T‑462/13, EU:T:2015:902).
(
5
)	Judgments of 20 December 2017, Spain v Commission (C‑81/16 P, EU:C:2017:1003), and Comunidad Autónoma del País Vasco and Others v Commission (C‑66/16 P to C‑69/16 P, EU:C:2017:999).
(
6
)	Judgment of 26 November 2015, Comunidad Autónoma de Galicia and Retegal v Commission (T‑463/13 and T‑464/13, not published, EU:T:2015:901).
(
7
)	Judgment of 20 December 2017, Comunidad Autónoma de Galicia and Retegal v Commission (C‑70/16 P, EU:C:2017:1002).
(
8
)	Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).
(
9
)	Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ 2015 L 248, p. 9).