EN Official Journal of the European Union C 329/24

STATE AID — PORTUGAL

State aid C 85/01 — Ad hoc measures in favour of RTP

Invitation to submit comments pursuant to Article 88(2) of the EC Treaty

(Text with EEA relevance)

(2008/C 329/11)

On 26 June 2008 (1), the Court of First Instance of the European Communities partially annulled the Commission decision of 15 October 2003 concerning ad hoc measures implemented by Portugal for RTP (2).

The Commission would like to draw the attention of interested parties to the fact that the investigation has been re-opened and hereby invites them to submit comments on the issues mentioned in the summary below.

Interested parties may submit their comments within one month of the date of publication of this announcement to:

European Commission Directorate-General for Competition Directorate State Aid II State Aid Registry SPA3 6/5 B-1049 Brussels Fax (32-2) 296 12 42

The comments will be communicated to Portugal. Confidential treatment of the identity of the interested party submitting the comments may be requested in writing, stating the reasons for the request.

SUMMARY

PROCEDURE

Following a series of complaints by a commercial competitor, on 15 November 2001 the Commission decided to initiate the procedure laid down in Article 88(2) of the EC Treaty in respect of a number of ad hoc measures granted by the Portuguese State to the public service broadcaster RTP during the period 1992-1998 (3).

On 15 October 2003, the Commission adopted a final positive decision. The Commission considered that certain measures from which RTP benefitted during this period constituted State aid, while others did not. The overall amount of State aid from which RTP benefitted was considered to be compatible with the common market within the meaning of Article 86(2) of the EC Treaty, as it did not lead to an overcompensation of the net costs of the public service tasks entrusted to RTP.

On 26 June 2008, the Court of First Instance (hereafter ‘the Court’) annulled part of the Commission's decision of 15 October 2003. The decision was annulled on the following two grounds:

1. State aid qualification of the exemption from notary and registration charges

The Court considered that the Commission wrongly concluded that the exemption from notary and registration charges in favour of RTP did not constitute State aid.

According to the Court, the Commission failed to prove to the requisite legal standard that the exemptions from notary and registration charges did not confer on RTP a specific advantage and that, accordingly, they did not constitute State aid.

2. Proportionality of the State aid

The Court considered that the Commission failed to fulfil its obligation to undertake a diligent and impartial investigation and to place itself in a position in which it had information which was sufficiently reliable available to it to determine the public services actually supplied and the cost actually incurred in supplying them. In the absence of such information, the Commission was unable to proceed subsequently to a meaningful verification of the proportionality of the costs of the public service and was unable to make a valid finding that there had been no overcompensation of the public service costs.

The Court referred in particular to the public service reports which described how each public service obligation had been fulfilled by RTP and which identified the costs of each public service obligation by using an analytical accounting system. The Court considered that these reports, which were available to the Commission for all years included in the investigation period, suffered from an objective weakness of which the Commission was aware. That weakness consisted in the fact that those reports were not systematically accompanied by an audit statement as required by the concession agreement between the Portuguese State and RTP.

In the absence of systematic external verification of these reports by RTP's auditors, the Court found that there existed or should have existed, necessarily, a doubt on the part of the Commission as to the reliability of the information contained therein. Those contractual external audit reports were, at least for the years for which they were not available, liable to supply that institution with relevant information which would confirm — or refute — the data already at its disposal.

The Court concluded that the Commission was unable, in the absence of proof of systematic external verification of the public service reports by an auditor, to consider the information contained in those reports to be reliable. Hence, in not requiring the Portuguese authorities to disclose the contractual external audit reports, the Commission failed to fulfil its obligation to undertake a diligent and impartial investigation.

CALL FOR COMMENTS

The partial annulment has the legal consequence that the investigation initiated on 15 November 2001 is again open. However, the part of the decision which was not annulled is final and is consequently not within the scope of the now re-opened investigation.

The purpose of the present announcement is to give interested third parties the opportunity to submit (further) comments on the re-opened procedure.

In particular, the Commission is interested in obtaining new information on the actual fulfilment of the public service tasks and on the public service costs incurred by RTP during the period 1992-1998. Any further evidence on the exemption from notary and registration charges granted to RTP during the investigation period is also welcome.

(1) Case T-442/03.

(2) OJ L 142, 6.6.2005, p. 1.

(3) OJ C 85, 9.4.2002, p. 9.