Case T‑533/10

DTS Distribuidora de Televisión Digital, SA

v

European Commission

‛State aid — Public service broadcasting — Aid planned by Spain for RTVE — Alteration of the funding scheme — Replacement of advertising revenues by new taxes on television and telecommunications operators — Decision declaring the aid compatible with the internal market — Fiscal measure constituting the method by which the aid measure is financed — Tax necessarily hypothecated to the aid — Direct impact of the revenue from the tax on the amount of the aid — Proportionality’

Summary — Judgment of the General Court (Third Chamber), 11 July 2014

Competition — Undertakings entrusted with the operation of services of general economic interest — Subject to the treaty rules — Criteria for the assessment of the compatibility of State financing with the internal market — Significant and clearly disproportionate effect on trade and competition

Competition — Undertakings entrusted with the operation of services of general economic interest — Compensation for the costs generated by the public service mission — Assessment of the compatibility of an aid with the internal market — Criteria

State aid — Provisions of the Treaty — Scope — Taxes — Exclusion save for taxes financing an aid — Tax partly financing an aid imposed on competitors of the beneficiary with a view to accomplishment of a public service mission and not imposed on that beneficiary — No proof of binding appropriation between the tax and the financing of the aid concerned

Actions for annulment — Review of legality — Criteria — Account taken only of the factual and legal elements existing at the date on which the contested measure was adopted

State aid — Provisions of the Treaty — Scope — Taxes constituting the method of financing an aid measure — No strict interdependence between the tax and the financing of the aid concerned — Not included

See the text of the decision. (see paras 33, 34, 170)

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. 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. 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. Nor is it sufficient to show that the levy collected on the basis of the fiscal measure is allocated to the beneficiary of the aid. (see paras 52-54)

See the text of the decision. (see paras 75, 144)

See the text of the decision. (see para. 82)

In principle, persons liable to pay an obligatory contribution cannot rely on the argument that the exemption enjoyed by other persons constitutes State aid in order to avoid payment of that contribution. Moreover, it is not sufficient that an undertaking liable to pay a tax which contributes to financing aid is in a competitive relationship with the beneficiary of the aid in order for the tax to form an integral part of the aid and for that undertaking to be able to oppose its payment. The mere fact that a tax whose purpose is to contribute to the financing of aid is imposed not on the beneficiary of the aid but on other undertakings competing with that beneficiary is not sufficient to support the conclusion that the tax forms an integral part of the aid. (see paras 92, 95, 102)

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 paras 117, 176)

According to Protocol No 29 on the system of public broadcasting in the Member States, annexed to the EU and FEU Treaties, 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. Accordingly, the Member States enjoy a broad discretion in defining public service broadcasting tasks and in deciding how they are organised. The extent of the Commission’s review of the way in which public service broadcasting tasks are defined and of decisions as to how they are organised is therefore limited. Since the Commission’s assessment addresses complex economic facts, the scope of the General Court’s review of a Commission decision is 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 measure in question is manifestly inappropriate, given the objective pursued. (see paras 124-128, 195)

See the text of the decision. (see paras 130, 157, 193)

The fact that a public broadcasting organisation adopts anti-competitive conduct towards private market operators, by, for example, consistently overbidding in the market for the acquisition of programme content is not compatible with Article 106(2) TFEU. Such conduct could not be regarded as necessary for the performance of such an organisation’s public service mandate. However, such conduct is excluded where the national legislation concerned expressly prohibits that organisation from using its revenues to outbid its competitors for rights with a high commercial value. The effectiveness of that prohibition cannot be called into question by the fact that that organisation is in competition with private operators or by the fact that it acquires content with a high commercial value, in so far as that occurs in the context of the accomplishment of its public broadcasting mission. (see paras 131, 132, 136)

For an aid scheme for the benefit of an operator entrusted with a public service broadcasting mandate to be regarded as not fulfilling the condition laid down in Article 106(2) TFEU, it must affect trade and competition significantly and to an extent which is manifestly disproportionate to the objectives pursued by the Member States. (see paras 155, 160-164)

See the text of the decision. (see paras 199, 203)