62011TJ0151_EN
Parties
Grounds
Operative part
Parties
In Case T‑151/11,
Telefónica de España, SA,
established in Madrid (Spain),
Telefónica Móviles España, SA,
established in Madrid,
represented by F. González Díaz and F. Salerno, avocats,
applicants,
v
European Commission, represented by G. Valero Jordana and C. Urraca Caviedes, acting as Agents,
defendant,
supported by
Kingdom of Spain,
represented initially by M. Muñoz Pérez, subsequently by S. Centeno Huerta and N. Díaz Abad, subsequently by N. Díaz Abad and finally by M. Sampol Pucurull, abogados del Estado,
and
Corporación de Radio y Televisión Española, SA (RTVE),
established in Madrid, represented by A. Martínez Sánchez, A. Vázquez-Guillén Fernández de la Riva and J. Rodríguez Ordóñez, avocats,
interveners,
APPLICATION for the annulment of Commission Decision 2011/1/EU of 20 July 2010 on the State aid scheme C 38/09 (ex NN 58/09) which Spain is planning to implement for Corporación de Radio y Televisión Española (RTVE) (OJ 2011 L 1, p. 9),
THE GENERAL COURT (Third Chamber),
composed of O. Czúcz (Rapporteur), President, I. Labucka and D. Gratsias, Judges,
Registrar: T. Weiler, Administrator,
having regard to the written procedure and further to the hearing on 15 October 2013,
gives the following
Judgment
Grounds
1. In this action, the applicants Telefónica de España, SA and Telefónica Móviles España, SA seek the annulment of Commission Decision 2011/1/EU of 20 July 2010 on the State aid scheme C 38/09 (ex NN 58/09) which Spain is planning to implement for Corporación de Radio y Televisión Española (RTVE) (OJ 2011 L 1, p. 9) (‘the contested decision’). In that decision, the Commission found that the scheme for funding Corporación de Radio y Televisión Española, SA (RTVE), altered by the Kingdom of Spain by Ley 8/2009, de 28 de agosto, de financiación de la Corporación de Radio y Televisión Española (Law No 8/2009 of 28 August 2009 on the funding of RTVE, BOE No 210 of 31 August 2009, p. 74003, ‘Law No 8/2009’), amending Ley 17/2006, de 5 de junio, de la radio y la televisión de titularidad estatal (Law No 17/2006 of 5 June 2006 on state-owned radio and television, BOE No 134 of 6 June 2006, p. 21270, ‘Law No 17/2006’), was compatible with the internal market under Article 106(2) TFEU.
Background to the dispute and the contested decision
2. Telefónica de España is the long-established Spanish telecommunications operator. It provides, inter alia, fixed telephony services, including cable pay-TV, interconnection and leased lines. Telefónica Móviles España is a mobile telephony operator in Spain. Both companies are wholly-owned by Telefónica de España, SA. Telefónica de España is active in the market for the supply of audiovisual content, which it provides via its ‘Internet Protocol Television’ network, through its ‘Imagenio’ service.
3. RTVE is the Spanish public radio and television broadcasting organisation. Under Law No 17/2006 it was entrusted with a public service remit in those fields.
4. Law No 17/2006 established a dual funding scheme for RTVE. Under that law, RTVE received revenue from its commercial activities, and in particular from the sale of advertising space, and payments from the Spanish State as compensation for the fulfilment of its public service remit. That funding scheme (‘RTVE’s existing funding scheme’) was approved by the Commission of the European Communities in Decision C(2005) 1163 final of 20 April 2005 on State aid to RTVE (E 8/05) (summarised in OJ 2006 C 239, p. 17) and Decision C(2007) 641 final of 7 March 2007 on the funding of measures to reduce staff numbers at RTVE (NN 8/07) (summarised in OJ 2007 C 109, p. 2).
5. On 22 June 2009, the Commission received a complaint drawing attention to the bill which was to become Law No 8/2009. On 5 August 2009, the Commission requested the Kingdom of Spain to provide it with information about that bill.
6. Law No 8/2009, which entered into force on 1 September 2009, altered RTVE’s existing funding scheme.
7. First of all, Law No 8/2009 provided that, as from the end of 2009, advertising, teleshopping, sponsorship and pay-per-view services would no longer be sources of funding for RTVE. The only commercial revenue that would continue to be available to RTVE after that date would be the income which it derived from the provision of services to third parties and from the sale of its own productions (Article 2(1)(e) of Law No 8/2009). That revenue amounted to approximately EUR 25 million (see recital 9 to the contested decision).
8. Next, in order to offset the loss of its other commercial revenue, Law No 8/2009 introduced or modified, in Article 2(1)(b) to (d) and Articles 4 to 6 thereof, the following three fiscal measures:
– a new tax of 3% of the revenues of free-to-air TV broadcasters and 1.5% of the revenues of pay-TV broadcasters established in Spain, the contribution from that tax to RTVE’s budget being limited to 15% (in the case of free-to-air TV) and 20% (in the case of pay-TV) of the total annual support for RTVE and any surplus tax revenue being paid into the general budget of the Spanish State (Article 2(1)(d) and Article 6 of Law No 8/2009);
– a new tax of 0.9% of gross operating revenues (excluding those obtained in the wholesale reference market) of telecommunications services operators established in Spain, registered in the register of operators of the Spanish telecoms regulator, operating nationwide or in more than one Autonomous Community of the Spanish State and providing audiovisual services or any other service that includes advertising, derived from any of the following services: fixed telephony, mobile telephony and Internet access provision, this contribution to the total annual support for RTVE being limited to 25% and any surplus tax revenue beyond that percentage being paid into the general budget of the Spanish State (Article 2(1)(c) and Article 5 of Law No 8/2009);
– a share of 80%, up to a maximum amount of EUR 330 million, of the already existing levy on radio spectrum use, any remainder being paid into the general budget of the Spanish State and that percentage being amenable to modification in accordance with the laws relating to the general budget of the Spanish State (Article 2(1)(b) and Article 4 of Law No 8/2009).
9. In addition, the public service compensation provided for by Law No 17/2006 was maintained (Article 2(1)(a) of Law No 8/2009). Accordingly, in the event that the abovementioned sources of funding (together with a number of other, minor sources provided for in Article 2(1)(f) to (i) of Law No 8/2009) should prove insufficient to cover the whole of RTVE’s planned costs of performing its public service duties, the Spanish State was required, under Article 2(2) of Law No 8/2009 and Article 33 of Law No 17/2006, to make good the shortfall. RTVE’s dual funding scheme was thus transformed into an almost entirely publicly funded scheme (‘the quasi-public funding scheme’).
10. Finally, Article 3(2) of Law No 8/2009 established a ceiling for RTVE’s income, limiting it, in 2010 and 2011, to EUR 1 200 million annually, that sum also representing RTVE’s maximum expenditure in each of those financial years. The maximum increase in that amount was set at 1% for the years 2012 to 2014 and, for subsequent years, the increase was to be based on the annual consumer price index.
11. Law No 8/2009 also altered the definition of the public service broadcasting mandate entrusted to RTVE. In particular, it established additional obligations for RTVE relating to children’s programmes. It also set limits on the acquisition of broadcasting rights for sports events and on the broadcasting at peak viewing times of films produced by major international producers.
12. On 2 December 2009, the Commission informed the Kingdom of Spain of its decision to initiate the procedure laid down in Article 108 TFEU with regard to the alteration of RTVE’s funding scheme (‘the decision to initiate the formal investigation procedure’), (summarised in OJ 2010 C 8, p. 31). The Commission invited interested parties to submit their observations on the measure in question.
13. On 18 March 2010, the Commission commenced proceedings for failure to fulfil obligations under Article 258 TFEU, on the ground that the tax imposed on electronic communications was contrary to Article 12 of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (OJ 2002 L 108, p. 21). In a reasoned opinion, the Commission was to request the Kingdom of Spain, on 30 September 2010, to abolish the tax on the ground of its incompatibility with that directive.
14. On 20 July 2010, the Commission adopted the contested decision in which it declared that the alteration of RTVE’s funding scheme brought about by Law No 8/2009 was compatible with the internal market under Article 106(2) TFEU. It based its decision, in particular, on the finding that the three fiscal measures introduced or modified by Law No 8/2009 were not an integral part of the new elements of the aid established by that law and that any incompatibility of those fiscal measures with the Authorisation Directive did not therefore affect its assessment of the funding scheme’s compatibility with the internal market. In addition, it took the view that RTVE’s modified funding scheme was consistent with Article 106(2) TFEU, in that it was proportional.
The procedure before the General Court
15. By application lodged at the Registry of the General Court on 11 March 2011, the applicants brought the present action.
16. By document lodged at the Court Registry on 25 May 2011, the Kingdom of Spain applied for leave to intervene in the present proceedings in support of the form of order sought by the Commission.
17. By document lodged at the Court Registry on 16 June 2011, RTVE applied for leave to intervene in these proceedings in support of the form of order sought by the Commission.
18. By orders of 30 June and 22 September 2011, the President of the Third Chamber of the General Court granted those applications for leave to intervene.
19. By letter lodged at the Court Registry on 20 July 2011, the applicants requested that the confidentiality of certain facts and information contained in the annexes to their application be preserved vis-à-vis
RTVE.
20. By letter lodged at the Court Registry on 10 October 2011, RTVE objected to the applicants’ request for confidential treatment in its entirety.
21. By order of 7 December 2011, the President of the Third Chamber of the General Court dismissed the request for confidential treatment.
22. The interveners submitted their statements in intervention and the applicants submitted their observations on those statements within the prescribed periods.
23. By letter lodged at the Court Registry on 8 March 2012, the applicants requested that the confidentiality of certain information contained in their observations on RTVE’s statement in intervention be preserved vis-à-vis
the Kingdom of Spain and RTVE.
24. By letters lodged at the Court Registry on 10 and 11 April 2012 respectively, the Kingdom of Spain and RTVE objected to the applicants’ request for confidential treatment.
25. By order of 4 July 2013, the President of the Third Chamber of the General Court dismissed that request for confidential treatment.
26. By letters of 9 July 2013, the General Court, by way of measures of organisation of procedure provided for under Article 64 of its Rules of Procedure, put a number of questions to the parties. The parties answered those questions within the prescribed period.
27. On hearing the report of the Judge-Rapporteur, the General Court (Third Chamber) decided to open the oral procedure. The parties presented oral argument and gave their replies to the questions asked by the Court at the hearing on 15 October 2013.
28. The applicants claim that the Court should:
– annul the contested decision pursuant to Article 263 TFEU;
– in any event, order the Commission to pay the costs;
– order the Kingdom of Spain to pay all the costs of its intervention, including those incurred by the applicants;
– order RTVE to pay all the costs of its intervention, including those incurred by the applicants.
29. The Commission, the Kingdom of Spain and RTVE contend that the Court should:
– declare the action partially inadmissible;
– in any event, dismiss the action as unfounded;
– order the applicants to pay the costs.
Law
30. The action is based on five pleas in law, alleging, first, infringement of the procedural rights guaranteed by Article 108(2) TFEU, secondly, infringement of Article 108 TFEU and Article 1(c) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] (OJ 1999 L 83, p. 1), thirdly, breach of the duty to state reasons in this connection, fourthly, misapplication of the concept of aid, for the purposes of Article 107 TFEU and, fifthly, infringement of Article 106(2) TFEU and breach of the duty to state reasons.
1. Admissibility of the action and of the pleas raised
31. The Commission, supported by the Kingdom of Spain and RTVE, argues that the action is partly inadmissible. It submits that the applicants have an interest in bringing annulment proceedings only in so far as concerns the parts of the contested decision that relate to the contributions which they are required to make. They therefore have no interest in seeking the annulment of the contested decision in so far as it concerns either the contributions which they would in any event have to pay, regardless of how those sums are allocated, or contributions which they are not required to pay. Each of the contributions provided for by Articles 4 to 6 of Law No 8/2009 is, according to the Commission, separable from the others. The annulment of any one of them therefore has no effect on the others.
32. For its part, the Kingdom of Spain argues that the second to fifth pleas are inadmissible for the reason that the applicants have no interest in bringing the action. Those pleas concern the merits of the contested decision. The fact that the applicants may be regarded as concerned parties within the meaning of Article 108(2) TFEU is, the Kingdom of Spain submits, not sufficient. They must be individually concerned by the decision. However, their position on the market is not substantially affected by Law No 8/2009.
33. The applicants dispute those arguments.
34. Suffice it to recall, in this connection, that the Courts of the European Union are entitled to assess, according to the circumstances of each case, whether the proper administration of justice justifies the dismissal of an action or a plea in law on its merits without first ruling on its admissibility (Case C‑23/00 P Council
v Boehringer
[2002] ECR I‑1873, paragraphs 51 and 52, and Case T‑171/02 Regione autonoma della Sardegna
v Commission
[2005] ECR II‑2123, paragraph 155).
35. In the circumstances of the present case, the Court considers that, in the interests of procedural economy, the applicants’ claim for annulment and the merits of the pleas which they put forward in support of that claim should be considered at the outset, without first ruling on the admissibility of the action as a whole or on the admissibility of the second to fifth pleas, since the action is, in any event, wholly unfounded, for the reasons set out below.
2. Substance
The first plea, alleging infringement of the procedural rights guaranteed by Article 108(2) TFEU
36. By their first plea, the applicants argue that the Commission infringed the procedural rights which they are guaranteed by Article 108(2) TFEU. In recital 29 of the preamble to the decision to initiate the formal investigation procedure the Commission stated that the three fiscal measures introduced or rearranged by Law No 8/2009 were severable from RTVE’s existing funding scheme. That point was, however, debateable. The Commission thus restricted the subject-matter of the formal investigation procedure and as a result of that restriction the applicants’ procedural rights were limited, since the Commission was only required to take account of the observations of interested third parties regarding the subject-matter of the investigation procedure. Consequently, in so far as concerns the question of whether or not the fiscal measures were dissociable from the aid elements, the applicants did not, they submit, enjoy the same degree of protection as they would have enjoyed had that question been addressed in the investigation procedure. The situation was thus the same as if the Commission had adopted a final decision on a measure without initiating the formal investigation procedure, even though there were serious questions regarding the measure at issue.
37. The Commission, supported by the Kingdom of Spain and RTVE, disputes those arguments.
38. In this connection it should be borne in mind that the formal investigation procedure provided for by Article 108(2) TFEU is designed to protect the rights of third parties who are potentially concerned and is essential whenever the Commission has serious difficulties in determining whether aid is compatible with the internal market (Case C‑47/10 P Austria
v Scheucher-Fleisch and Others [2011] ECR I‑10707, paragraph 70, and Case T‑388/03 Deutsche Post and DHL International
v Commission [2009] ECR II‑199, paragraph 87).
39. It should also be emphasised that, in the present case, the applicants do not complain that the Commission failed to initiate the formal investigation procedure with regard to Law No 8/2009. They submit that, even though the Commission decided to initiate the formal investigation procedure with respect to that law, it infringed the procedural rights which they are guaranteed by Article 108(2) TFEU by asserting, in its decision to initiate the procedure, that the three fiscal measures introduced or modified by Law No 8/2009 were dissociable from RTVE’s existing funding scheme.
40. That argument must be rejected.
41. The conclusions regarding the three fiscal measures introduced or modified by Law No 8/2009 which the Commission set out in recital 29 to its decision to initiate the formal investigation procedure are incapable of undermining the procedural rights which the applicants are guaranteed by Article 108(2) TFEU.
42. Contrary to the applicants’ assertions, the situation in the present case cannot be compared with the hypothetical situation in which the Commission had decided not to initiate the formal investigation procedure with regard to Law No 8/2009.
43. Had the Commission decided not to initiate the formal investigation procedure with regard to Law No 8/2009, the applicants would not have been in a position to exercise the procedural rights which, as interested third parties, they are guaranteed by Article 108(2) TFEU.
44. Moreover, in this case, the Commission did decide to initiate the formal investigation procedure with regard to Law No 8/2009 and the applicants were therefore in a position to submit observations as interested third parties and the Commission was able to take those observations into account.
45. First of all, the conclusions which the Commission set out in recital 29 to its decision to initiate the formal investigation procedure did not preclude the applicants from expressing their doubts as to whether the fiscal measures introduced or modified by Law No 8/2009 were dissociable. Indeed, when the Commission decides formally to investigate a measure it invites interested third parties to submit their observations on that measure. There is nothing to prevent such interested third parties from making observations not only on the doubts which the Commission has itself alluded to in its decision to initiate the formal investigation procedure, but also on other aspects of the measure under investigation.
46. Next, even if the Commission had not mentioned in its decision to initiate the formal investigation procedure any doubts regarding the dissociability of the fiscal measures, that would not have prevented it from taking into account any doubts raised by interested third parties in the course of the investigation procedure. If doubts are raised in the observations of an interested third party, there is nothing to prevent the Commission from conducting a more detailed examination, gathering additional information and, if appropriate, altering its position. Indeed, it is clear from Article 4(4) and Article 6(1) of Regulation No 659/1999 that any decision to initiate the formal investigation procedure includes a preliminary examination which enables the Commission to formulate an initial view on whether the measures under examination are in the nature of aid, within the meaning of Article 107(1) TFEU, and whether they are compatible with the internal market. Such a decision is thus of a merely preparatory nature (see, to that effect, the order of the General Court of 25 November 2009 in Case T‑87/09 Andersen
v Commission, not published in the ECR, paragraph 53). The necessarily provisional nature of the assessments in a decision to initiate the formal investigation procedure is confirmed by Article 7 of Regulation No 659/1999, which provides that the Commission may decide in the final decision that the notified measure does not constitute aid, that the notified aid is compatible with the internal market, that the notified aid may be considered compatible with the internal market if certain obligations are complied with or that the notified aid is incompatible with the internal market. (Case T‑190/00 Regione Siciliana
v Commission [2003] ECR II‑5015, paragraph 48).
47. The applicants cannot, therefore, successfully argue that the procedural rights which they are guaranteed by Article 108(2) TFEU were affected by the view which the Commission expressed in recital 29 to its decision to initiate the formal investigation procedure.
48. None of the arguments put forward by the applicants is capable of calling that conclusion into question.
49. First of all, the applicants contend that it may be inferred from paragraphs 90 to 99 of the Court’s judgment of 2 September 2010 in Commission v Scott (Case C‑290/07 P, ECR I‑7763) that the Commission is not obliged to take account of doubts regarding parts of the measure under examination that are raised by interested third parties where it has not raised those doubts in its decision to initiate the formal investigation procedure. That reading of the abovementioned judgment is, however, incorrect. Indeed, in that judgment the Court merely held that the Commission is not obliged to take account of documents which have not been communicated to it during the administrative procedure, but only afterwards, and which contain only vague assertions.
50. Secondly, referring to paragraphs 124 to 137 of the General Court’s judgment of 12 September 2007 in González y Díez
v Commission
(Case T‑25/04, ECR II‑3121), the applicants maintain that the Commission must take account of the legitimate expectations which the parties concerned may entertain as a result of what has been said in the decision to initiate the formal investigation procedure.
51. That argument must also be rejected.
52. The judgment mentioned in paragraph 50 above relates to a case in which the General Court considered whether, in a decision to initiate the formal investigation procedure, the Commission had given sufficient information to enable the beneficiary of the measure to realise that the Commission entertained a doubt with regard to a part of the measure under examination, to put forward its arguments and to provide such information as it considered necessary in that regard with full knowledge of the facts. Indeed, where insufficient information has been given, the beneficiary of a measure cannot be expected to have to dispel the doubts which the Commission entertains with regard to that measure. Such a beneficiary may, therefore, rely on the principle of the protection of legitimate expectations in the event that the Commission bases its final decision on such a doubt.
53. That reasoning does not apply to the present case in which, in the event that they disagreed, the applicants were in a position to submit their observations on the view, stated by the Commission in recital 29 to its decision to initiate the formal investigation procedure, that the three fiscal measures introduced or modified by Law No 8/2009 were severable from RTVE’s existing funding scheme. Given the necessarily provisional nature of the Commission’s assessments in such a decision, the applicants could not legitimately expect that, during the course of the procedure and, in particular, after hearing their observations, the Commission would not change its opinion.
54. The first plea must therefore be dismissed as unfounded.
The second plea, alleging misapplication of the concept of new aid, within the meaning of Article 108 TFEU and Article 1(c) of Council Regulation No 659/1999
55. The second plea concerns the part of the statement of reasons for the contested decision entitled ‘Assessment of the existing aid nature of the measures’ and comprising recitals 48 to 55, in which the Commission responded to the argument put forward by the Kingdom of Spain that Law No 8/2009 did not constitute a substantive alteration of the existing aid scheme as amended pursuant to the Commission’s decision in Case E 8/05 and did not, therefore, constitute new aid requiring notification (see recital 48 to the contested decision).
56. The applicants submit that, in recitals 48 to 55 of the contested decision, the Commission misapplied the concept of new aid, within the meaning of Article 108 TFEU and Article 1(c) of Council Regulation No 659/1999, by concluding that the alteration of RTVE’s funding scheme brought about by Law No 8/2009 was dissociable from RTVE’s existing funding scheme. The applicants submit that Law No 8/2009 cannot be regarded as a simple addition to the existing scheme. It not only altered RTVE’s funding, it also altered the public service remit conferred on that organisation. There is a connection between the funding and the alteration of the public service remit and the Commission was therefore not entitled to regard the alteration of RTVE’s funding brought about by Law No 8/2009 as being dissociable from the existing scheme and it should not have been examined separately.
57. The applicants also contend that the Commission breached the principle of legal certainty. They submit that the distinction which the Commission drew in the contested decision between its assessment of the alteration of RTVE’s funding and its assessment of the alteration of RTVE’s public service mission runs counter to its practice in earlier decisions.
58. The Commission, on the other hand, supported by the Kingdom of Spain and RTVE, submits that that plea should be dismissed. The alterations brought about by Law No 8/2009 are dissociable from the existing scheme. Only alterations affection a scheme’s substance, that is to say, the intrinsic functioning of an existing scheme, are not dissociable from that scheme. However, the alterations brought about by Law No 8/2009 did not alter the intrinsic functioning of the existing funding scheme. First of all, the three fiscal measures introduced or modified by Law No 8/2009 affected neither the assessment of the other elements of the aid granted to RTVE nor the impact that the State aid might have on the market. Next, the fact that the fiscal measures increased the independence of the public service affected neither the intrinsic functioning of the existing scheme nor the impact that the aid might have on the market. Lastly, the adjustments made to RTVE’s public service remit resulted in a narrower definition of that remit. That did not affect the assessment of the aid’s compatibility or alter the classification of RTVE’s existing funding scheme as existing aid.
59. The Commission adds that the argument concerning its decision-making practice is irrelevant, since the existence of any such practice is incapable of affecting the legality of the contested decision. In any event, its decision-making practice is not inconsistent.
60. It is appropriate, in this context, to recall the rules governing alterations to existing aid schemes before examining the question whether, in recitals 48 to 55 of the preamble to the contested decision, the Commission observed those rules.
The rules governing alterations to existing aid schemes
61. In so far as concerns the rules governing alterations to existing aid schemes, it must first of all be noted that, in accordance with Article 1(c) of Regulation No 659/1999, new aid means all aid which is not existing aid, including alterations to existing aid.
62. However, pursuant to Article 4 of Commission Regulation (EC) No 794/2004 of 21 April 2004 implementing Regulation No 659/1999 (OJ 2004 L 140, p. 1), not every alteration of existing aid is necessarily new aid. Indeed, it is clear from that provision that alterations of a purely formal or administrative nature which cannot affect the evaluation of the compatibility of the aid measure are not to be regarded as alterations of existing aid. In order to qualify as new aid, therefore, an alteration of existing aid must be substantial.
63. In the event that an alteration to an existing aid scheme does constitute new aid, the Commission must examine the extent to which it affects the existing aid scheme. In principle, it is only the alteration as such that constitutes new aid. It is only where the alteration affects the actual substance of the original scheme that it is transformed into a new aid scheme. However, an alteration does not affect the actual substance of the original scheme where the new element is clearly severable from the original scheme (Joined Cases T‑195/01 and T‑207/01 Government of Gibraltar v Commission [2002] ECR II‑2309, paragraphs 109 to 111).
64. Accordingly, an alteration to an aid scheme that provides for the extension of the existing scheme to a new class of beneficiaries is an alteration that is clearly severable from the initial scheme, since the application of the existing aid scheme to the new class of beneficiaries does not affect the assessment of the initial scheme’s compatibility (Case T‑189/03 ASM Brescia
v Commission [2009] ECR II‑1831, paragraph 106).
65. It should also be made clear in this context that it is only to the extent that the alteration of an existing aid scheme affects the substance of that scheme that it must be regarded as new aid within the meaning of Article 1(c) of Regulation No 659/1999. The Commission may, therefore, restrict itself to evaluating only the parts of the existing scheme of which the substance has been affected by the alteration. In so far as those parts are concerned, there is nothing to prevent the Commission from referring to the outcome of its initial evaluation and merely considering whether that evaluation is cal led into question by the alteration. As regards the requirement for the Member State to notify the aid, it follows that, even in a case where a new aid measure alters the substance of an existing aid scheme, the Member State is not necessarily required to notify the aid scheme again in its entirety and may restrict itself to notifying the alteration, provided that such notification contains all the information necessary for the Commission to evaluate the new aid measure.
The approach adopted by the Commission in the present case
66. It is in the light of the foregoing considerations that the Court must consider whether, in recitals 48 to 55 of the preamble to the contested decision, the Commission observed the rules governing the alteration of an existing aid scheme.
67. In recitals 49 and 50 to the contested decision, the Commission stated that, in accordance with Article 4 of Regulation No 794/2004, it was required first to consider whether the alteration of RTVE’s existing funding scheme brought about by Law No 8/2009 was substantial. Next, it observed that the switch from RTVE’s dual funding scheme to a quasi-public funding scheme, effected by the Kingdom of Spain with the adoption of Law No 8/2009, was a substantial alteration and thus constituted new aid. It noted that the amount of the aid had increased sharply and that the revenue derived from advertising (which was not aid) had been replaced by funding from the Spanish State.
68. In this part of the statement of reasons for the contested decision, which has not been called into question by the parties, the Commission therefore did no more than state its opinion on the question whether the alterations to RTVE’s existing funding scheme brought about by Law No 8/2009 constituted new aid (see paragraph 62 above), without going on to address the question whether the alterations to RTVE’s existing funding scheme brought about by Law No 8/2009 were dissociable from that scheme.
69. In recitals 51 and 52 to the contested decision the Commission set out its understanding of the method which must be followed with regard to the treatment of alterations to existing aid schemes. After referring to Article 1(c) of Regulation No 659/1999 and the judgment mentioned in paragraph 63 above, the Commission stated, in the first sentence of recital 52, that adjustments which did not affect the evaluation of the compatibility of an aid measure could not affect the substance of the aid either and therefore did not change the classification of the measure as existing aid. In the second and third sentences of recital 52, the Commission stated that, if an alteration affected the substance of a scheme, but not to such an extent as to render a new assessment of its other elements necessary, that alteration could be assessed on a stand-alone basis, without reference to the other elements of the scheme and that, in such a case, it was only the alteration that was subject to the notification obligation of the Member State and the Commission’s review obligation.
70. The Court finds no fault with that approach. Indeed, as was explained in paragraphs 63 and 64 above, an alteration which is not likely to affect the evaluation of an existing aid scheme because it does not affect its substance must be regarded as severable from that scheme. In addition, as was explained in paragraph 65 above, in a case where a measure which must be regarded as new aid is likely to have an effect on the evaluation of the initial aid scheme, it is only the elements of the initial scheme that are affected as to their substance that are transformed into new aid.
71. In recitals 53 to 55 to the contested decision, the Commission applied the method outlined in paragraph 69 above.
72. Accordingly, in recitals 54 and 55 to the contested decision, the Commission stated its opinion on the question whether the alterations to RTVE’s existing aid scheme brought about by Law No 8/2009 were dissociable from the existing scheme.
73. In recital 54, it examined the relationship between the new sources of funding for RTVE and the aid elements provided for in its existing funding scheme. After confirming that the new funding was substantial and therefore constituted new aid, the Commission observed that it might have an impact ‘on the compatibility of the entire aid’ and thus also on the aid elements already provided for in the existing aid scheme in favour of RTVE.
74. In recital 55, the Commission concluded that, because of their effect on the compatibility of RTVE’s overall funding scheme, the changes should have been formally notified to it. It stated that the classification as new aid applied only to the alteration as such and that it was only necessary for it to assess the quality of the changes and their implications for the compatibility of the aid.
75. In recitals 54 and 55 to the contested decision the Commission did not, therefore, state that the new aid elements introduced by Law No 8/2009 were dissociable from the existing aid scheme. On the contrary, it is clear from those recitals that it considered that Law No 8/2009 had altered certain elements of the existing aid scheme substantially.
76. That reading is confirmed by the overall structure of the contested decision. In the context of its examination of the aid’s compatibility, the Commission reviewed RTVE’s funding scheme as altered by Law No 8/2009, that is to say, the aid scheme in favour of RTVE comprising not only the new aid elements introduced by that law but also the elements of the existing scheme that had been altered as to their substance. Thus, in recitals 56 to 60 to the contested decision the Commission analysed the altered definition of RTVE’s public service remit. Then, in recitals 67 to 76, it considered whether, in light of that remit and all of the aid elements enjoyed by RTVE, that is to say, the public resources introduced by Law No 8/2009 and those already provided for under RTVE’s existing funding scheme, there was a risk of overcompensation.
77. It is therefore clear from recitals 54 and 55 and from the overall structure of the contested decision that the Commission did not find that the aid elements provided for by Law No 8/2009 constituted new aid dissociable from RTVE’s existing aid scheme.
78. That conclusion is not called into question by the remarks which the Commission made in recital 53 to the contested decision. Admittedly, it did state that the fiscal measures introduced or amended by Law No 8/2009 were severable from RTVE’s existing funding scheme. In that context it expressed the view that the new sources of funding might affect the legality of the scheme as such, but did not affect the evaluation of the other elements of the aid granted to RTVE or the effect that that aid might have on the market.
79. Nevertheless, contrary to the applicants’ submissions, it cannot be inferred from recital 53 to the contested decision that the Commission considered the aid elements provided for by Law No 8/2009 to be dissociable from the existing aid scheme in favour of RTVE.
80. First of all, that interpretation is not necessarily correct. It is equally feasible that the point which the Commission made in recital 53 related solely to the fiscal measures introduced or modified by Law No 8/2009, that is to say, the fiscal component of that law. If that is the case, then the remarks which the Commission made in recital 53 related solely to the parts of Law No 8/2009 which, according to the Commission, were not an integral part of the aid and could not, therefore, have any effect on the aid’s compatibility with the internal market (see recitals 61 to 66 to the contested decision), a conclusion the merits of which will be examined in the context of the fourth plea. It appears to be equally feasible that, in recital 53, the Commission merely wished to observe that the Kingdom of Spain was obliged to notify it of Law No 8/2009, but was not obliged to notify it ex novo of all the elements of RTVE’s existing funding scheme (see, in that connection, paragraph 65 above).
81. Secondly, whilst it must be admitted that the exact import of the observations which the Commission made in recital 53 to the contested decision is not entirely clear, the applicants’ reading of that recital must, in any event, be rejected, since it is diametrically opposed to the remainder of the statement of reasons and the overall structure of the decision (see paragraphs 72 to 77 above).
82. It must therefore be held that, in recital 53 to the contested decision, the Commission did not conclude that the alterations made to RTVE’s existing funding scheme constituted new aid that was entirely dissociable from the existing scheme and amenable to independent analysis. Thus, contrary to the applicants’ submissions, the Commission did not infringe Article 108 TFEU or Article 1(c) of Regulation No 659/1999.
83. The second plea must therefore be dismissed in its entirety.
The third plea, alleging a breach of the duty to state reasons in connection with the dissociable nature of the alteration to the existing scheme
84. In the context of the third plea, the applicants argue that, in recital 53 to the contested decision, the Commission breached its duty to state reasons. It failed to explain how it arrived at the conclusion that the three fiscal measures introduced or modified by Law No 8/2009 were dissociable from RTVE’s existing funding scheme.
85. The Commission, on the other hand, supported by the Kingdom of Spain and RTVE, submits that the statement of reasons for the contested decision is adequate.
86. It is important to bear in mind in this context that the statement of reasons required by Article 296 TFEU must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent European Union Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see Joined Cases T‑81/07 to T‑83/07 KG Holding and Others
v Commission [2009] ECR II‑2411, paragraphs 61 and 62 and the case-law cited).
87. First of all, in so far as it refers to a finding by the Commission that the new public resources introduced by law No 8/2009 and the alteration of the definition of the public service mission were dissociable from the existing aid scheme, the present plea must be dismissed. As explained in paragraphs 71 to 83 above, the contested decision contains no such finding on the Commission’s part.
88. Secondly, in so far as concerns the uncertainty regarding the exact import of the observations which the Commission made in recital 53 to the contested decision (see paragraphs 80 and 81 above), it should be borne in mind that any contradiction in the statement of reasons for a decision constitutes a breach of the duty to state reasons only if it is established that, as a result of that contradiction, the addressee of the measure is not in a position to ascertain, wholly or in part, the real reasons for the decision and, as a result, the operative part of the decision is, wholly or in part, devoid of any legal justification (see, to that effect, judgment of 12 September 2013 in Case T‑347/09 Germany
v Commission, not published in the ECR, paragraph 101 and the case-law cited).
89. That condition is not fulfilled in the present case. First, as was explained in paragraphs 72 to 76 above, it is clear from recitals 54 and 55 to the contested decision and from its overall structure that the Commission did not take the view that the alterations made by Law No 8/2009 were dissociable from the existing aid scheme. It is also appropriate to bear in mind in this context that the reasons for which the Commission regarded RTVE’s funding scheme, as altered by Law No 8/2009, to be compatible with the internal market are clear from recitals 56 to 76 to the contested decision, wherein the Commission examined not only the compatibility of the new aid elements introduced by Law No 8/2009 but also that of the modified aid elements under Law No 17/2006.
90. Thirdly, even supposing that, in recital 53 to the contested decision, the Commission had contradicted the remainder of the observations which it made in the contested decision, a point which has not been established, any such contradiction would be incapable of affecting the legality of the decision. Indeed, the approach which the Commission adopted and the real reasons for the contested decision are clear from recitals 54 and 55 and from the overall structure of the decision (see, to that effect, Germany
v Commission, paragraph 88 above, paragraph 101 and the case-law cited).
91. The third plea must therefore be dismissed.
The fourth plea, concerning the Commission’s conclusion that the three fiscal measures introduced or modified by Law No 8/2009 did not form an integral part of the aid
92. The fourth plea relates to the reasons set out in recitals 61 to 66 to the contested decision, in which the Commission concluded that the three fiscal measures introduced or modified by Law No 8/2009 did not form an integral part of the aid measure introduced by that law.
93. The applicants argue that, contrary to the Commission’s finding, the three new fiscal measures introduced or modified by Law No 8/2009 were an integral part of the new aid elements introduced by that law. Therefore, when examining the compatibility of the aid, the Commission should also have assessed the compatibility of the three new fiscal measures with EU law, and in particular the Authorisation Directive.
94. This plea is expressed in two parts. First, the applicants maintain that the Commission misconstrued the criteria by which the relationship between an aid measure and the way in which it is financed is to be assessed. Secondly, they argue that, had the Commission applied the correct criteria, it would have found that the three fiscal measures introduced or modified by Law No 8/2009 were an integral part of the aid elements introduced by that law.
The first part of the fourth plea, concerning the circumstances in which the method of financing aid must be regarded as forming an integral part of the aid
95. The first part of this plea relates to recitals 61 to 63 to the contested decision. In recital 61, the Commission noted that, under Law No 8/2009, the switch from RTVE’s dual funding scheme to a quasi-public funding scheme was accompanied by the introduction or modification of three fiscal measures the purpose of which was to generate the necessary revenue. In recital 62, the Commission noted that, where a tax forms an integral part of aid, it must consider the method by which the aid measure is financed and may declare an aid scheme compatible with the internal market only if it complies with EU law. In recital 63, the Commission observed that, in order for a tax to be regarded as forming an integral part of an aid measure, it must be hypothecated to the financing of the aid, in the sense that the revenue from the tax is necessarily allocated to the financing of the aid and has a direct impact on the amount of the aid.
96. The applicants maintain that, contrary to what the Commission stated in recital 63 to the contested decision, in order for fiscal measures whose purpose is to finance an aid measure to be regarded as forming an integral part of that measure, it is sufficient if they are allocated to the beneficiary of the aid. It is not necessary, on the other hand, for the fiscal measures to have a direct impact on the amount of the aid. That is merely one factor among many.
97. The Commission, on the other hand, supported by the Kingdom of Spain and RTVE, submits that the criteria mentioned in recital 63 to the contested decision are not incorrect. A tax may only be regarded as forming an integral part of an aid measure when two conditions are met: first, the revenue from the tax must necessarily be allocated to the financing of the aid and, secondly, the revenue from the tax must have a direct impact on the amount of the aid.
98. In must be borne in mind in this connection that the FEU Treaty establishes a clear distinction between, on the one hand, the rules on State aid, which are laid down in Articles 107 TFEU to 109 TFEU and, on the other, the rules concerning the distortions which arise from differences between the laws, regulations or administrative provisions of the Member States and, in particular, their tax provisions, which are laid down in Articles 116 TFEU and 117 TFEU (see, to that effect, Case C‑174/02 Streekgewest
[2005] ECR I‑85, paragraph 24).
99. Accordingly, fiscal measures which serve to finance an aid measure do not, in principle, fall within the scope of the provisions of the FEU Treaty concerning State aid (see, to that effect, Case C‑175/02 Pape
[2005] ECR I‑127, paragraph 14, and Streekgewest, paragraph 98 above, paragraph 25).
100. However, where fiscal measures constitute the method of financing an aid measure in such a way that they form an integral part of that measure, the Commission cannot separate its examination of the aid from the effects of the method of financing it, since, in such a situation, any incompatibility with EU law of the method of financing might affect the compatibility of the aid scheme with the internal market ( Pape, paragraph 99 above, paragraph 14, and Streekgewest, paragraph 98 above, paragraph 25).
101. As regards the criteria for deciding whether the method of financing aid forms an integral part of an aid measure, it is clear from the case-law that it must be hypothecated to the aid measure under the relevant national rules, in the sense that the revenue from the charge is necessarily allocated to the financing of the aid and has a direct impact on the amount of the aid and, consequently, on the assessment of the compatibility of that aid with the internal market (Joined Cases C‑393/04 and C‑41/05 Air Liquide Industries Belgium
[2006] ECR I‑5293, paragraph 46, and Case C‑333/07 Regie Networks [2008] ECR I‑10807, paragraph 99).
102. That case-law clearly shows, first, that, in order for a tax to be regarded as forming an integral part of an aid measure, there must necessarily be a binding provision of national law which hypothecates the tax to the financing of the aid. It follows that, in the absence of such a provision, a tax cannot be regarded as being allocated to an aid measure and does not, therefore, constitute one of its conditions. Secondly, the mere fact that such a provision exists is not in itself sufficient to establish that a tax does in fact form an integral part of an aid measure. If such a provision of national law does exist, it is also necessary to examine whether the revenue from the tax has a direct impact on the amount of the aid.
103. Contrary to what the applicants argue, in order for a tax to form an integral part of an aid measure it is not, therefore, sufficient that the revenue generated by the tax is necessarily allocated to the financing of the aid.
104. As regards the case-law on which the applicants rely in support of their arguments, it must be observed that none of the judgments they mention supports their argument that, in order to prove that a method of financing forms an integral part of an aid measure, it is sufficient to show that the levy collected on the basis of the fiscal measure is allocated to the beneficiary of the aid.
105. In this context, the applicants put forward the fact that, in certain of its judgments, the Court of Justice has held that the fiscal measure must be hypothecated to the aid measure and that, if such a binding connection exists, the revenue from the fiscal measure has a direct impact on the amount of the aid.
106. Contrary to the applicants’ submission, it cannot be inferred from the judgments on which they rely ( Streekgewest, paragraph 98 above, paragraph 26; Pape, paragraph 99 above, paragraph15; Joined Cases C‑128/03 and C‑129/03 AEM and AEM Torino
[2005] ECR I‑2861, paragraphs 46 and 47; and Joined Cases C‑266/04 to C‑270/04, C‑276/04 and C‑321/04 to C‑325/04 Distribution Casino France and Others
[2005] ECR I‑9481, paragraph 40) that the direct impact of the fiscal measure on the amount of the aid is not a requisite condition but merely one factor among many. On the contrary, in Streekgewest, paragraph 98 above (at paragraph 28), the Court did not restrict itself to examining whether the fiscal measure was hypothecated to the aid measure, but also examined whether the revenue from the fiscal measure had a direct impact on the amount of the aid in question.
107. It is also appropriate to point out that, in the judgments in which the Court held there to be an inseparable link between the aid measure and the method by which it was financed, without expressly mentioning the requirement that the fiscal measure must have a direct impact on the amount of the aid (Joined Cases C‑261/01 and C‑262/01 van Calster and Others
[2003] ECR I‑12249, paragraph 55, and Joined Cases C‑34/01 to C‑38/01 Enirisorse [2003] ECR I‑14243, paragraph 47), that requirement was already satisfied.
108. The Commission did not, therefore, err in law by finding that, in order for its method of financing to form an integral part of an aid measure, the charge in question must be hypothecated to the aid, in the sense that the revenue generated by the charge is necessarily allocated to the financing of the aid and has a direct impact on the amount of the aid.
109. The first part of the fourth plea must therefore be rejected.
The second part of the plea, concerning the application of the criteria in question
110. The second part of the plea concerns recitals 64 to 66 to the contested decision, in which the Commission concluded that the conditions for finding that the method of financing formed an integral part of the aid measure were not fulfilled in this case.
111. In recital 64 to the contested decision, the Commission found that the amount of aid for RTVE was set with regard only to RTVE’s financing needs and the estimated net costs of providing the public broadcasting service. In fact and in law, the funding received by RTVE was independent from the revenue generated by the taxes, since such funding depended only on the net costs of the public service obligation. The planned overall funding of RTVE’s public service mandate did not depend on the amount of the specific tax revenues, but was in any event to be ensured by the general State budget. The Commission observed that, on the one hand, the revenue generated by the taxes which was to be allocated to the funding of RTVE could not exceed the net costs of the public service obligation, any excess over the net cost of that public service having to be paid back to the general State budget. On the other hand, it found that, if the net costs of the public service obligation exceeded the revenue generated by the taxes in question, the shortfall would be made up by contributions from the general State budget. Higher or lower than expected revenues from the new taxes would not lead to changes in the projected amounts. Should the revenue from the new tax sources not be sufficient to cover the funding gap left by the abolition of advertising, the missing funds would be contributed from that same general State budget, in accordance with Article 33 of Law No 17/2006.
112. Furthermore, in recital 65 to the contested decision, the Commission observed that the fact that the link between the taxes and the purpose for which they were introduced was mentioned in the explanatory memorandum and in Law No 8/2009 itself did not alter that conclusion. The wording used in the law did not define the nature of the link between the taxes and the aid.
113. Lastly, in recital 66 to the contested decision, the Commission concluded that the three fiscal measures introduced or modified by Law No 8/2009 were not an integral part of the aid and that any incompatibility with the Authorisation Directive would not, therefore, affect its decision on the compatibility of the aid measure with the internal market.
114. The applicants submit that those findings are vitiated by errors of law. They argue that the Commission should have found that the tax imposed by Article 5 of Law No 8/2009 formed an integral part of the aid elements introduced by that law.
115. First of all, they argue that it is clear from Article 5(1) and (7) of Law No 8/2009 that the revenue from the tax in question is to contribute to the funding of RTVE and therefore will not, in substance, be used for other purposes. The percentage rates which apply to taxable persons under the three new fiscal measures introduced or modified by Law No 8/2009 were, they allege, fixed at such a level as to enable the Spanish State to bring in sufficient funds to cover the shortfall resulting from the abolition of advertising.
116. Next, contrary to what the Commission suggests, the link between the new fiscal measures and the aid for RTVE is not broken. In the first place, it cannot be inferred from Article 33 of Law No 17/2006 that the Spanish State is under any obligation to provide the necessary resources for RTVE. Secondly, any guarantee from the Spanish State is merely incidental and hypothetical, as is borne out by RTVE’s complaint that any failure to pay on the part of private operators or any error in the calculation of their contributions would cause it cash-flow difficulties and also by the fact that, in practice, the Spanish State is not prepared to make good on such a guarantee. Thirdly, the Commission cannot effectively argue that any excess will be paid into the budget of the Spanish State. First of all, the entirety of the revenue from the taxes will necessarily be allocated to the funding of RTVE, up to the ceiling provided for. Secondly, payment into the budget of the Spanish State is no more than a rather theoretical and, in any event, merely residual possibility, since Law No 8/2009 provides for the creation of a reserve fund to hold any revenue in excess of the actual net costs of the public service obligation.
117. In any event, in order to prove that the fiscal measure provided for by Article 5 of Law No 8/2009 does not form an integral part of the aid, the Commission should have demonstrated that, even if the tax is shown to be illegal, the Spanish State will remain under an obligation to fund RTVE’s budget entirely. However, it is clear from Law No 8/2009 that private operators will be obliged to bear the economic cost of funding RTVE.
118. The Commission, supported by the Kingdom of Spain and RTVE, contests those arguments.
119. It should be observed as a preliminary point that, in order to demonstrate that the tax imposed by Article 5 of Law No 8/2009 formed an integral part of the aid elements introduced by that law, the applicants put forward, first and foremost, arguments to demonstrate that there is hypothecation between the fiscal measure and the funding of RTVE.
120. As stated in paragraphs 101 to 108 above, in order for a fiscal measure to form an integral part of aid, it is not sufficient for there simply to be hypothecation between the fiscal measure and the aid. It is also necessary for the fiscal measure’s direct impact on the amount of the aid to be established.
121. Nevertheless, the Court takes the view that some of the arguments which the applicants put forward may be understood as relating not only to the requirement of hypothecation between the fiscal measure and RTVE’s funding, but also to the requirement of proof that the fiscal measure has a direct impact on the amount of the aid.
122. It is therefore appropriate to consider, initially, whether the applicants’ arguments are capable of calling into question the Commission’s conclusion that the revenue generated by the three fiscal measures introduced or modified by Law No 8/2009 has no direct effect on the amount of aid to be given to RTVE.
123. It is important to bear in mind in this connection that, under Law No 8/2009, the amount of aid to be given to RTVE is fixed by reference to the net costs of performing the public service broadcasting mandate conferred on it. The amount of aid which it receives does not, therefore, depend on the amount of revenue generated by the fiscal measures introduced or modified by that law.
124. In the first place, under Article 33 of Law No 17/2006, as amended by Law No 8/2009, in the event that the income available to RTVE exceeds the costs of performing its public service broadcasting mandate, the surplus is to be reallocated. Any surplus not exceeding 10% of RTVE’s annual budgeted costs is to be paid into a reserve fund and any surplus above that ceiling is to be transferred to the Public Treasury.
125. As regards any capital transferred to the reserve fund, it is apparent from Article 8 of Law No 8/2009 that it may be used only with the express authorisation of the Ministry of the Economy and Finance and that, if it is not used within four years, it must serve to reduce the compensation to be drawn from the general budget of the Spanish State. Capital transferred into the reserve fund cannot, therefore, be regarded as having a direct impact on the amount of aid to be given to RTVE.
126. Moreover, Article 3(2) of Law No 8/2009 lays down an absolute limit on RTVE’s income, which is set at EUR 1 200 million for 2010 and 2011. Any surplus over and above that ceiling is to be directly re-allocated to the general budget of the Spanish State.
127. In the second place, under Article 2(2) of Law No 8/2009, in the event that the income available to RTVE is insufficient to cover the costs of performing its public service broadcasting mandate, the shortfall is to be made up from contributions from the general budget of the Spanish State.
128. The Commission was therefore right to find that the amount of tax levied under the three fiscal measures introduced or modified by law No 8/2009 could not have a direct impact on the amount of aid received by RTVE, which is determined by reference to the net costs of providing the public broadcasting service.
129. None of the arguments put forward by the applicants is capable of calling that finding into question.
130. First of all, contrary to the applicants’ submission, the mere fact that the three fiscal measures introduced or modified by Law No 8/2009 were designed to compensate the loss of RTVE’s commercial revenue (see recital 13 to the contested decision) does not prove that the method of financing the aid forms an integral part of the aid measure. Indeed, the Court has already observed that that fact is not in itself sufficient to show that a tax is hypothecated to a tax exemption ( Streekgewest, paragraph 98 above, paragraphs 26 and 27).
131. Secondly, the Court must reject the applicants’ argument that the Commission made an error in finding, in recital 64 to the contested decision, that an obligation on the Spanish State to make up any shortfall between the costs incurred in the performance of its public service mandate, on the one hand, and the financial means available to RTVE, on the other, could be inferred from Article 33 of Law No 17/2006. Suffice it to observe in this connection that Article 2(2) of Law No 8/2009 expressly provides for such an obligation and refers to Article 33(1) of Law No 17/2006, which also lays down such an obligation.
132. Thirdly, the applicants submit that, even if such an obligation exists in theory, the Spanish State will not in practice be prepared to supplement RTVE’s budget with funds from its own general budget.
133. That argument must also be rejected.
134. Suffice it to recall in this context that, according to settled case-law, in an action for annulment under Article 263 TFEU, the legality of a European Union measure must be assessed on the basis of the facts and the law as they stood at the time when the measure was adopted. The assessments carried out by the Commission must be examined only in the light of the information which it had at the time when it made them (Joined Cases 15/76 and 16/76 France
v Commission
[1979] ECR 321, paragraph 7).
135. It must be observed that the applicants have failed to adduce any evidence to show that, at the time when it adopted the contested decision, the Commission was in possession of information indicating that the Spanish State was not prepared to supplement RTVE’s budget in accordance with Article 2(2) of Law No 8/2009. Indeed, all of the documents submitted by the applicants in this connection post-date the adoption of the contested decision, which was on 20 July 2010.
136. Fourthly, the applicants argue that the fiscal measure designed to finance an aid measure may only be regarded as not forming an integral part of that measure if the Commission is able to show that, in the event that the fiscal measure proves to be incompatible with EU law, the Member State in question has undertaken to finance the aid measure in its entirety.
137. That argument must also be rejected.
138. Admittedly, in a case where, on applying the two abovementioned criteria, that is to say the condition relating to hypothecation between the fiscal measure and RTVE’s funding and the condition relating to proof that the fiscal measure has a direct impact on the amount of the aid, the fiscal measure must be regarded as forming an integral part of the aid — as in the case of a parafiscal measure pursuant to which all or a specific proportion of a tax levy is allocated directly and unconditionally to the beneficiary of the aid — the incompatibility of the fiscal element will have a direct effect on the aid measure. Indeed, in such a case, the incompatibility or partial incompatibility of the fiscal element of the parafiscal measure will result in the abolition of the aid measure or a reduction in the amount of aid.
139. In this case, Article 2(2) of Law No 8/2009 and Article 33 of Law No 17/2006 provide that, if the sources of funding prove insufficient to cover all of the costs incurred by RTVE in performing its public service obligations, the Spanish State is required to make up the shortfall. In the present case, therefore, the amount of aid does not depend directly on the fiscal measure.
140. Consequently, the Commission was right to find that the amount of aid to be given to RTVE did not depend directly on the amount of tax levied on the basis of the fiscal measures introduced or modified by Law No 8/2009.
141. As was stated in paragraph 120 above, in order for the three fiscal measures introduced or modified by Law No 8/2009 to be regarded as forming an integral part of the aid element, the condition relating to hypothecation between the fiscal measure and the aid measure and the condition relating to proof that the fiscal measure has a direct impact on the amount of the aid must both be met.
142. Since the second condition is not met, it is unnecessary to examine the arguments which the applicants put forward to demonstrate that there is hypothecation between the fiscal measure provided for in Article 5 of Law No 8/2009 and RTVE’s funding, since they serve no purpose.
143. The fourth plea must therefore be dismissed in its entirety.
The fifth plea, alleging infringement of Article 106(2) TFEU and breach of the duty to state reasons
144. The fifth plea concerns the reasons set out in recitals 67 to 73 to the contested decision, in which the Commission assessed whether there was a risk of overcompensation and concluded that there was no indication that the estimated annual compensation for RTVE’s public service obligation would exceed the reasonably likely costs of that service or would ultimately exceed the net costs of the public service. In recital 71, the Commission noted, in particular, the following:
‘However, Spain demonstrated that the budgetary planning remains in line with RTVE’s annual budgeted costs in previous years and that there is no reason to assume that any considerable cost savings could be made now or in the near future merely through the abolition of advertising. RTVE will continue to be required to attract a large audience, and the abolition of commercials will create a need for additional productions which will have to be financed. Compared to the figures of previous years (EUR 1 177 million in 2007, EUR 1 222 million in 2008 and EUR 1 146 million in 2009) and taking into account the additional cost of the productions (EUR 104 million) needed to replace the advertising air time [and] the remaining commercial income (estimated [at] only EUR 25 million), a ceiling of EUR 1 200 million for the budgetary cost planning seems a cautious and reasonable amount for the annual budgeted costs of the public service compensation. Furthermore, the principle of compensating the effective net costs of a public broadcaster necessarily entails protecting it from the variations in the revenues in the advertising market.’
145. The fifth plea falls into two parts, alleging, first, infringement of Article 106(2) TFEU and, secondly, a breach of the duty to state reasons.
The first part of the fifth plea, alleging infringement of Article 106(2) TFEU
146. The applicants argue that the Commission infringed Article 106(2) TFEU by authorising RTVE’s funding scheme without ensuring that it did not entail a risk of overcompensation.
147. First of all, the applicants maintain that, in recital 71 to the contested decision, the Commission failed to conduct a sufficiently detailed ex ante review and merely relied on circumstantial evidence. Secondly, they argue that the Commission failed to take into account the fact that the economic crisis brought about a decrease in commercial revenue in 2010 and, consequently, a reduction in RTVE’s overall income.
– The complaint alleging a lack of a sufficiently detailed review
148. The applicants argue that, in order to ensure that there is no risk of overcompensation, the Commission must obtain detailed information and must clearly set out its reasoning regarding the absence of overcompensation. It cannot, in this context, merely rely on circumstantial evidence. In the present case, however, the Commission merely compared the budget that was available to RTVE under the dual funding scheme with the budget available to it under the quasi-public funding scheme introduced by Law No 8/2009. That approach was incorrect, since the costs which RTVE actually incurs in providing the public service under Law No 8/2009 are reduced. Since RTVE is no longer an operator subject to the commercial pressures associated with a presence in the advertising market it is now free to offer a different kind of programming and does not need to invest so heavily in rights acquisition. The Commission was therefore not entitled to restrict itself to finding, in recital 71 to the contested decision, that RTVE would continue to be required to attract a large audience and that it would incur additional production costs of EUR 104 million in order to fill air time freed up by the abolition of advertising. Moreover, the mere existence of ex post review mechanisms is not sufficient to ensure that there is no risk of overcompensation.
149. The Commission, supported by the Kingdom of Spain and RTVE, contests those arguments.
150. It is appropriate, in this connection, to recall, as a preliminary point, the content of Article 106(2) TFEU as well as the legal context of that provision.
151. Pursuant to 106(2) TFEU, undertakings entrusted with the operation of services of general economic interest are subject to the rules contained in the treaties, in particular to the rules on competition, in so far as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them. It also provides that the development of trade must not be affected to such an extent as would be contrary to the interests of the Union.
152. In order for State aid, within the meaning of Article 107 TFEU, to be declared compatible with the internal market on the basis of Article 106(2) TFEU, the following conditions must be met: first, the operator in question must be entrusted with a service of general economic interest by an act of a public authority that clearly defines the general economic interest service obligations in question and, secondly, the operator must not receive excessive compensation, nor must the State funding affect competition disproportionately on the external market (see, to that effect, Case T‑289/03 BUPA and Others
v Commission [2008] ECR II‑81, paragraphs 181 and 222).
153. In the present case, the applicants do not call into question the Commission’s finding that RTVE is entrusted with a service of general economic interest by an act of a public authority that clearly defines the general economic interest service obligations.
154. On the other hand, the applicants submit that the Commission’s finding, set out in recital 73 to the contested decision, that there was no indication that the estimated annual compensation for RTVE’s public service obligation would exceed the reasonably likely costs of that service or would ultimately exceed the net costs of the public service, is vitiated by error in that the Commission failed to give sufficient consideration to the risk of overcompensation.
155. Before examining this complaint, it is appropriate to recall the principles in accordance with which the General Court may review a decision of the Commission in the field of public services and, more specifically, in the field of broadcasting.
156. Pursuant to Article 14 TFEU, the Union and the Member States, each within their respective powers and within the scope of application of the treaties, must ensure that services of general economic interest operate on the basis of principles and conditions, particularly economic and financial conditions, which enable them to fulfil their missions. Article 14 TFEU also provides that these principles and conditions are to be established without prejudice to the competence of the Member States, in compliance with the treaties, to provide, to commission and to fund such services.
157. It is apparent from Protocol No 26 on services of general interest, annexed to the EU and FEU Treaties, that one of the shared values of the Union with regard to such services is the wide discretion of national, regional and local authorities in providing, commissioning and organising these services of general economic interest.
158. According to Protocol No 29 on the system of public broadcasting in the Member States, annexed to the EU and FEU Treaties, public broadcasting in the Member States is directly related to the democratic, social and cultural needs of each society and to the need to preserve media pluralism. It is also clear from that protocol that the provisions of the FEU Treaty are without prejudice to the competence of the Member States to provide for the funding of public service broadcasting in so far as such funding is granted to broadcasting organisations for the fulfilment of the public service remit as conferred, defined and organised by each Member State and in so far as such funding does not affect trading conditions and competition in the Union to an extent which would be contrary to the common interest, account being taken of the performance of that public service mandate.
159. Accordingly, the Member States enjoy a broad discretion in determining the compensation to be paid for the provision of a public broadcasting service (see, by analogy, BUPA and Others
v Commission, paragraph 152 above, paragraph 220).
160. The extent of the Commission’s review of the proportionality of such compensation is therefore limited (see, by analogy, BUPA and Others
v Commission, paragraph 152 above, paragraph 220).
161. As regards the General Court’s review of a Commission decision in this field, it is important to bear in mind that the Commission’s assessment addresses complex economic facts. The scope of the General Court’s review of a Commission decision is therefore even more limited than that of the Commission’s assessment of the measure of the Member State in question and is restricted to ascertaining whether the compensation provided for is necessary to enable the service of general economic interest in question to be performed in economically acceptable conditions or whether, on the contrary, the measure in question is manifestly inappropriate, given the objective pursued (see, by analogy, BUPA and Others
v Commission, paragraph 152 above, paragraphs 221 and 222).
162. In so far as concerns the applicants’ complaint, it must be observed that it goes no further than alleging that the Commission failed to give adequate consideration to the risk of overcompensation in that it failed to examine in sufficient detail whether the sum of EUR 1 200 million provided for in Article 3(2) of Law No 8/2009 in fact corresponded to the costs incurred by RTVE in fulfilling its public service obligations.
163. In this connection it is important to note at the outset that the applicants call into question only one of the review mechanisms provided for by RTVE’s funding scheme, although the scheme establishes a whole series of review mechanisms designed to ensure that RTVE receives no more than the funds it needs to fulfil its remit.
164. Having said that, it is appropriate to point out, first, that the economic dimension of RTVE’s activity is determined by reference to the public service obligations that have been conferred on it. Accordingly, Article 3(2) of Law No 8/2009 makes clear that RTVE’s activity is governed by a framework mandate, approved by the legislature, of nine years’ duration (see Article 4(1) of Law No 17/2006) and by government-approved programming agreements of three years’ duration which implement the framework mandate (see Article 4(2) of Law No 17/2006). The framework mandate and programming agreements must contain information about the economic dimension of RTVE’s activity and the limits on its annual growth, that economic dimension being determined in light of the public service obligations conferred on the broadcaster.
165. Next, it is appropriate to point out that the sources of funding for RTVE are conceived in such a way as to prevent overcompensation. As was explained in paragraphs 6 to 9 above, RTVE is funded from a number of sources, which are listed in Article 2(1) of Law No 8/2009. The principal sources are the revenue from the three fiscal measures introduced or modified by Articles 4 to 6 of Law No 8/2009 and the annual compensation drawn from the general budget of the Spanish State, which is referred to in Article 2(1)(a) of that law. Establishing a sum of annual compensation thus makes it possible to adjust the projected amount of revenue available to RTVE in any given financial year. Article 33(1) of Law No 17/2006 provides that the annual compensation is to be determined at such a level that the combined total of that compensation and all the other revenue available to RTVE does not exceed the costs of the public service obligations which it must discharge during the financial year in question.
166. Moreover, Article 33(2) of Law No 17/2006, as amended by Law No 8/2009, provides that, if, at year-end, it transpires that the revenue that RTVE has received exceeds the net costs which it has incurred in fulfilling its public service broadcasting obligation during the financial year, any surplus that is not paid into the reserve fund is to be deducted from the sums allocated from the general budget of the Spanish State in the following year.
167. Lastly, RTVE’s funding scheme also provides for ex post review mechanisms. As the Commission stated in recital 72 to the contested decision, RTVE’s funding scheme entails, first of all, budgetary control mechanisms consisting in internal audit, review by the Spanish government audit office and external auditing by a private audit firm, secondly, supervision of the performance of RTVE’s public service mandate and of its annual accounts by the Spanish Parliament and the Spanish audiovisual authority and, thirdly, review by the Spanish Court of Auditors.
168. Admittedly, the review mechanisms mentioned in paragraphs 164 to 167 above remain somewhat abstract. However, it must be borne in mind that, in the contested decision, the Commission was assessing the compatibility of an aid scheme. It was therefore entitled to restrict itself to checking whether adequate review mechanisms were in place to ensure that the total amount of aid received by RTVE in any given financial year in accordance with that aid scheme does not exceed the net costs of fulfilling the public service broadcasting remit conferred on it.
169. It must be observed that the applicants have not put forward any arguments specifically to call into question the effectiveness of the review mechanisms mentioned in paragraphs 164 to 167 above. In so far as they assert that the Commission was not entitled to refer, in the contested decision, to earlier decisions on the funding of RTVE, it must be recalled that it was required to examine the compatibility of the elements of RTVE’s existing funding scheme only to the extent that they were altered by Law No 8/2009 (see paragraph 65 above). Therefore, since the effectiveness of the review mechanisms established under RTVE’s previous funding scheme were not called into question by the alterations brought about by Law No 8/2009, there was nothing to prevent the Commission from referring to its previous analysis of those mechanisms.
170. Turning now, more specifically, to the applicants’ complaints regarding the findings which the Commission set out in recital 71 to the contested decision, it is appropriate first to consider the function of the sum of EUR 1 200 million provided for in Article 3(2) of Law No 8/2009 and then to assess whether the Commission’s review was insufficient.
171. In so far as concerns the function of the sum of EUR 1 200 million, it must be borne in mind, first of all, that the Commission did not approve a funding scheme under which, in any given financial year, RTVE would have a budget of that amount at its disposal. As was outlined in paragraphs 164 to 167 above, Law No 8/2009 establishes mechanisms to ensure that the aid for RTVE actually corresponds to the net costs of performing its public service obligations. Accordingly, Article 3(2) of Law No 8/2009 lays down an absolute limit of EUR 1 200 million for RTVE’s budget, that is to say, a limit which may not be exceeded even though its budget might be larger if the only relevant criterion were the costs of performing its public service obligations. Given that limit, RTVE’s budget may not exceed the maximum amount of EUR 1 200 million, yet it may be smaller, in the event that the costs of fulfilling its public service remit in any given year are lower.
172. It follows, first of all, that the applicants’ complaint that the cost to RTVE of performing its public service obligations might possibly be lower than EUR 1 200 million must be rejected. Indeed, the review mechanisms mentioned in paragraphs 164 to 167 above guarantee that, if that is the case, the amount of aid provided in that financial year will be limited to the net costs incurred in performing the public service broadcasting obligations.
173. Next, as regards the applicants’ complaints regarding the inadequacy of the Commission’s review of the limit of EUR 1 200 million, it must be borne in mind that the Member States enjoy a broad discretion in determining the amount of compensation to be paid for the provision of a public broadcasting service and that, as regards the proportionality of the compensation for a public service broadcasting obligation, the scope of the Commission’s review is limited and that of the General Court’s review of a Commission decision is even more limited (see paragraphs 159 to 161 above). The review of the General Court is thus restricted to considering whether the Commission has made a manifest error of assessment.
174. In the present case, none of the arguments put forward by the applicants is capable of showing that the considerations set out in recital 71 to the contested decision, according to which the ceiling of EUR 1 200 million seemed reasonable, are vitiated by a manifest error of assessment.
175. First of all, as the Commission stated in recital 71 to the contested decision, the sum of EUR 1 200 million corresponded to the average budget that was available to RTVE under the dual funding scheme.
176. Secondly, it is clear from recital 71 to the contested decision that the Commission took into account supplemental costs of EUR 104 million incurred in order to fill air time previously reserved for advertising and costs generated by the performance of additional public service obligations in the matter of programming imposed on RTVE by Law No 8/2009 and that it also took the view that there was no reason to assume that the abolition of advertising would entail any considerable reduction in RTVE’s actual costs.
177. Contrary to the applicants’ assertion, those considerations were not manifestly erroneous. Indeed, it could be taken for granted that the costs of performing RTVE’s public service mandate would be substantially lower than the costs which it had incurred under the scheme established by Law No 17/2006. Admittedly, in recital 59 to the contested decision, the Commission observed that withdrawing RTVE from the advertising market might contribute to strengthening the public service remit by making programming less dependent on commercial considerations and fluctuations in commercial revenues. Nevertheless, contrary to the applicants’ submission, the mere fact that RTVE has become an operator no longer subject to the commercial pressures associated with a presence in the advertising market does not justify the inference that it would be able to offer a different range of programmes which would enable it to operate at substantially lower costs. Indeed, Article 106(2) TFEU does not preclude Member States from defining a public broadcasting service remit broadly, enabling public service broadcasters to provide balanced and varied programming, while preserving a certain level of audience (Case T‑442/03 SIC v Commission
[2008] ECR II‑1161, paragraph 201).
178. Thirdly, contrary to the applicants’ assertion, the Commission did not make a manifest error of assessment by not examining further whether the shift to a quasi-public funding scheme and the alteration of the public service obligations might have an effect on the costs incurred by RTVE. Indeed, given that the sum of EUR 1 200 million provided for in Article 3(2) of Law No 8/2009 is merely an upper limit for RTVE’s budget and that the mechanisms described in paragraphs 164 to 167 above guarantee that the amount of aid provided to RTVE does not exceed the net costs of its public service obligations, the Commission was under no obligation to carry out a more detailed examination.
179. Fourthly, in so far as the applicants argue that the Commission should have responded to the observations of certain national authorities, it must be observed that, in recital 69 to the contested decision, the Commission itself mentioned its concerns regarding the proportionality of the measure, but concluded, after consideration, that there was no risk of overcompensation. In any event, the fact that the Commission might not examine in detail all the critical observations submitted by national administrative authorities regarding a draft law is not in itself capable of demonstrating any manifest error of assessment on its part, especially where the field in question is one in which the Member States enjoy a broad discretion and the scope of the Commission’s review is limited.
180. Therefore, the applicants have failed to show that the finding, set out in recital 71 to the contested decision, that the ceiling of EUR 1 200 million seemed reasonable is vitiated by a manifest error of assessment.
181. In light of the foregoing considerations, the complaint alleging a lack of a sufficiently detailed ex ante review must be rejected.
– The complaint alleging a failure to take account of the decrease in commercial revenue
182. The applicants argue that the Commission failed to take into account the fact that the economic crisis brought about a decrease in commercial revenue in 2010 and, consequently, a reduction in RTVE’s overall income.
183. The Commission, supported by the Kingdom of Spain and RTVE, contests that argument.
184. It must be observed in this connection that, even under the dual funding scheme established by Law No 17/2006, the criterion for determining RTVE’s budget was not the amount of its commercial revenue but the costs of its public service obligation. Indeed, as is apparent from recital 7 to the contested decision, under the dual funding scheme, the budgetary compensation provided by the Spanish State for 2009 had already increased as a result of the decrease in RTVE’s advertising revenue experienced that year.
185. Thus, the mere fact that the Commission did not take into account the fact that, under the dual funding scheme, RTVE’s commercial revenue from the sale of advertising space had decreased is not such as to demonstrate that it made a manifest error of assessment.
186. Therefore, this complaint must also be rejected and, consequently, the first part of the fifth plea in its entirety.
The second part of the fifth plea, alleging a breach of the duty to state reasons
187. The applicants argue that the Commission breached its duty to state reasons under Article 296 TFEU. First, it failed to give sufficient reasons for its conclusion that there was no risk of overcompensation. Secondly, it failed to deal sufficiently with the distortions of competition brought about by the obligation to pay the contributions introduced by Law No 8/2009.
– The first complaint, alleging an insufficient statement of reasons regarding the absence of any risk of overcompensation
188. The applicants argue that the Commission gave an insufficient statement in the contested decision of its reasoning regarding the absence of any risk of overcompensation. First of all, it should have responded more fully to the observations made by certain national authorities raising concerns about overcompensation. Next, it failed to provide any specific information about RTVE’s business plan for future years or about the nets costs of providing the public service. Other than the cursory statement which the Commission made in recital 71 to the contested decision, there is no indication of the factors on which the Commission based its reasoning. It was therefore impossible for them to submit any further observations, on the basis of the decision, than those formulated in its application. Moreover, the Commission was not entitled to refer to the statement of reasons which it had given in an earlier decision relating to RTVE.
189. The Commission, supported by RTVE, submits that, in recitals 67 to 69 and 71 to 73 to the contested decision, it gave sufficient reasons for its conclusion that there was no indication of overcompensation.
190. Having regard to the requirements to be satisfied by the statement of reasons, referred to in paragraph 86 above, it must be held that the statement of reasons for the contested decision was adequate.
191. First of all, contrary to the applicants’ suggestion, the reasoning in the contested decision on which the Commission based its conclusion that there was no risk of overcompensation is not restricted to recital 71 to the decision. Indeed, in recitals 67 to 73 to the decision, the Commission also referred to the review mechanisms mentioned in paragraphs 164 to 167 above. It must also be borne in mind in this context that the Commission also referred to those mechanisms in recitals 14, 16 and 17 to the decision.
192. Next, in so far as concerns the applicants’ complaint regarding the abstract nature of some of those considerations, suffice it to recall that it is clear from the contested decision that the Commission restricted itself to approving an aid scheme that enabled RTVE to benefit from aid corresponding to the net costs of performing its public service obligations and that it did not express its position on the compatibility of aid in the sum of EUR 1 200 million.
193. Moreover, in so far as the applicants argue that the Commission should have responded to the observations of certain national authorities, it must be observed that the Commission’s statement of reasons for a decision is sufficient if the decision discloses in a clear and unequivocal fashion the reasoning which it has followed, in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Court to exercise its power of review and that it is not necessary for the reasoning to go into all the relevant facts and points of law. Having set out, in recitals 67 to 76 to the contested decision, the reasons for which the measure was proportionate, the Commission was not required to respond specifically to all the critical observations submitted by the national administrative authorities concerning the draft law, especially in a field in which the Member States enjoy a broad discretion and the scope of the Commission’s review is, therefore, limited.
194. Furthermore, contrary to the applicants’ submission, there was nothing to prevent the Commission from referring to its earlier decisions concerning RTVE’s funding, which, in accordance with the case-law mentioned in paragraph 86, formed part of the context of the contested decision. In the present case, the Commission was all the more entitled to refer to those earlier decisions in that a large proportion of the review mechanisms had already been introduced by Law No 17/2006 and in that it was, consequently, entitled to restrict itself to considering whether its initial evaluation of the review mechanisms was called into question by the alterations made by Law No 8/2009 (see paragraph 65 above).
195. Finally, as regards the applicants’ argument that it was therefore impossible for them to submit any further observations, on the basis of the decision, than those formulated in its application, the Court would observe that there was nothing to prevent them putting forward arguments calling into question the effectiveness of the review mechanisms for RTVE’s funding scheme. However, the applicants have not put forward any such arguments.
196. The first complaint in the second part of the fifth plea must therefore be rejected.
– The second complaint, concerning the distortions brought about by the obligation to pay contributions
197. The applicants argue that the Commission breached it duty to state reasons in that it failed to deal sufficiently with the distortions of competition brought about by the obligation to pay contributions, in particular the lessening of their ability to compete with RTVE. The conclusion set out in recital 53 to the contested decision that the three fiscal measures introduced or modified by Articles 4 to 6 of Law No 8/2009 were dissociable from RTVE’s current funding scheme is inadequate. In their reply, the applicants also argue that Law No 8/2009 is discriminatory in that only operators operating nationwide or in more than one Autonomous Community of the Spanish State are subject to the tax while other operators are relieved of the cost of funding RTVE.
198. The Commission and RTVE contest those arguments, the latter also disputing the admissibility of the argument put forward by the applicants in their reply.
199. The second complaint in the second part of the fifth plea must also be rejected, without it being necessary to consider the admissibility of the argument which the applicants put forward in their reply. Suffice it to recall that, in recitals 61 to 66 to the contested decision, the Commission set out the reasons for which the three fiscal measures introduced or modified by Law No 8/2009 did not form an integral part of the aid established by that law and that it was therefore unnecessary for their compatibility with the internal market to be examined in the context of the procedure which led to the adoption of the contested decision
200. The second part of the fifth plea must therefore be rejected in its entirety and, consequently, also the fifth plea in its entirety.
201. In light of all the foregoing considerations, the application must be dismissed.
Costs
202. Under Article 87(2) of the Rules of Procedure of the General Court, 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 entirely unsuccessful and the Commission and RTVE have applied for costs, the applicants must be ordered to bear their own costs and to pay those of the Commission and RTVE.
203. Under the first subparagraph of Article 87(4) of the Rules of Procedure, Member States which have intervened in the proceedings are to bear their own costs. The Kingdom of Spain must therefore bear its own costs.
Operative part
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1. Dismisses the action;
2. Orders Telefónica de España, SA and Telefónica Móviles España, SA to bear their own costs and jointly to pay the costs of the European Commission and Corporación de Radio y Televisión Española, SA (RTVE);
3. Orders the Kingdom of Spain to bear its own costs.